Guidance on Federally-Reportable Violations for Stationary Air Sources U.S. Environmental Protection Agency Office of Enforcement and Compliance Assurance Office of Compliance Washington, DC 20460 April 1986 ------- 04/11/86 Guidance on Federally-Reportable Violations for Stationary Air Sources APR 11 1986 MEMORANDUM SUBJECT: Guidance on Federally-Reportable Violations for Stationary Air Sources FROM: J. Craig Potter Assistant Administrator for Air and Radiation ( ANR-443 ) TO: Regional Administrators Regions I - X Attached is guidance on what constitutes a Federal-reportable violation for stationary air sources. This guidance is the culmination of an extended effort initiated in FY 1985 within the Agency and with representatives of State and local air agencies. This guidance should be implemented in FY 1987 through your State enforcement agreements or similar appropriate vehicle. Once implemented, it should improve immeasurably our understanding of, and ability to deal with, the problem of assuring continuous compliance by stationary air sources. Traditionally, compliance status information is reported to EPA by States on a "snapshot" basis. This means the State reports the compliance status of the source ( based on the most recent assessment ) as of the end of the reporting period, generally quarterly. Thus EPA would know the source's compliance status only as of the end of the reporting period. It would not know of any changes in compliance status which took place during the period not reflected by the status as of the end of the period. This was not a serious problem when the focus of the compliance program was on obtaining initial compliance and compliance status changed only infrequently. However, as the focus has broadened to include maintaining continuous compliance, the current method of reporting is inadequate. For instance, a source could go in and out of compliance multiple times within a reporting cycle due to poor operation and maintenance practices. Yet, if it were in compliance at the period's end, under the snapshot approach the source would be reported in CDS as being in compliance with no record of the continuous compliance problems having occurred. This results in an understating of the true noncompliance rate and makes it more difficult to assess and improve the effectiveness of the program. It also tends to mask compliance problems of intermittent violators, sometimes delaying assuring that those sources are brought into continuous compliance. ------- The attached guidance addresses this problem by requiring that information be provided on many violations which occur and are resolved wholly within the reporting period. This will significantly improve our understanding of the true compliance picture for those sources and what actions are being taken to resolve the violations. This guidance was accepted by STAPPA at its March 18 Board of Directors meeting. It was not accepted by the ALAPCO Board of Directors. However, given the fundamental importance of improving the current system and the willingness of STAPPA to accept the guidance, we believe it is important to implement the guidance in FY 1987 as planned. I think it is particularly important that the guidance be implemented in the spirit in which it is intended. Concerns have been expressed about highly obtrusive Federal enforcement actions and undue reporting burdens. To address these concerns, I would like to provide the following guidance. Where a newly-identified violation has already been resolved at the time of reporting to EPA, an EPA enforcement action would rarely be warranted. (Even under the timely and appropriate response guidance, such violations would normally be resolved before EPA issues a Notice of Violation). If the violation appears to be an isolated one, no EPA action is warranted. If, however, the violation is part of a pattern of such violations by the source, it is certainly appropriate to raise the matter with the State or local agency and to assure that action is taken to resolve the pattern of persistent violations. Relative to the reporting of information to EPA, this guidance necessarily requires reporting of additional data to EPA for inclusion in the Compliance Data System ( CDS ). Such data, once received, must be entered into CDS in a timely manner. The guidance also requires that certain additional information about the violation be made readily available to EPA upon request. This information should be requested only when essential for a clearly-defined purpose and with full sensitivity to the potential resource burdens information requests create. I believe implementation of this guidance constitutes an important milestone for our air compliance program. I look forward to working with you and our State and local agency colleagues in assuring its successful implementation in FY 1987. ------- Attachment April 1986 GUIDANCE ON FEDERALLY-REPORTABLE VIOLATIONS FOR STATIONARY AIR SOURCES INTRODUCTION A basic objective of the Federal EPA's air program is to ensure national consistency in the interpretation and implementation of the Clean Air Act. Nowhere is consistency more critical than in the area of enforcement. The primary enforcement responsibility of the Act clearly lies with the States1. However, EPA has a well-defined and important role as well. The Agency is charged by the Act with assuring that State programs enforcing State Implementation Plans and, where delegated, NSPS and NESHAPS standards, are adequately and consistently implemented and regulations enforced. This responsibility has been met through various State program oversight activities ( NAAS ), grant negotiations, and by requiring the reporting of certain State compliance monitoring and enforcement activities.The primary existing mechanism by which State actions are reported to EPA is through the Compliance Data System (CDS). A continuing problem with this oversight function is that while there is a mechanism for tracking data on violations, EPA has never clearly defined in national guidance what it considers to be a reportable violation. While a State agency's legal obligation to enforce its regulations is clear, some discretion exists on what violations should be reported, and when and how such violations are to be reported. Such discretion generally allows the agency to direct limited resources to areas of greatest need and to respond more equitably to different types and magnitudes of violations. However, it can also lead to excessively variable practices on what to report as a violation and when to report it, resulting in unequal treatment of sources. All Regions have developed approaches in working with State agencies on reporting of violations. However, in the absence of national guidance, inconsistencies exist from Region to Region, and State to State, regarding what constitutes a reportable violation, when and how it is entered in CDS, and what information is necessary to support the reported violation. It is the intent of this guidance to address the basis of these inconsistencies and minimize their impact. It is not the intent of this guidance to require compliance status information for purposes of the Agency routinely overriding basic State enforcement responsibility and decision making. 1 "State" as used throughout this guidance also refers to local agencies where they have enforcement authority. ------- The task of developing the above mentioned national guidance is divided into five basic issues: • What is a Federally-reportable violation, i.e., which violations does EPA want reported to it by the State? • What specific information about reportable violations does EPA require to effectively monitor the universe of violating sources? How will the minimum information to be reported on violators be transmitted to EPA? • At what frequency must minimum information on violators be reported to EPA? • How will the compliance status of reported violators be tracked? • How will EPA use the information provided to it by the State? These issues are addressed in the following sections. They deal only with State reporting of fundamental data about violators of Federally- enforceable air requirements. For the purposes of this guidance, violators include significant violators as well as all other violators that meet the criteria discussed below. The scope of reporting and reporting procedures and frequency required by this guidance do not supercede the monthly informal consultations and monthly updating of CDS required for sources subject to the "Guidance on'Timely and Appropriate' EPA/State Enforcement Response for Significant Air Violators", dated June 1984. REPORTABLE VIOLATION The task here is not to establish what constitutes a violation, but rather to assess whether a violation of a Federally-enforceable requirement should be reported by the State to EPA. That is, all detected violations are not of immediate Federal concern. However, certain violations are. National guidance that permits the States to make this distinction is provided below. For a violation to be reportable to EPA, two conditions must be met. First, the source must either be an NSPS or NESHAPS facility or, if a SIP source ( including those subject to NSR and PSD regulations ), be classified A1 or A2 ( by the EPA definition of class ). Secondly, to be Federally-reportable, a violation must also meet at least one of the following criteria:2 • An emissions violation includes not only a violation of numerical emissions limitations but also violations of other requirements that directly impact the amount of allowable emissions, such as equipment standards, work practice standards, and sulfur-in-fuel limitations. 2 For the purpose of this guidance, specific terms used in the above criteria are defined in the following manner: ------- • A significant procedural violation of a State consent decree, court order, or administrative order includes failure by the source to accomplish or maintain interim emission reductions and failure to achieve interim increments of progress which jeopardizes the ability of the source to meet the final compliance dates. • A significant procedural NSPS violation includes such source activities as failure to install a Continuous Emission Monitoring System ( CEMS ) or other monitoring equipment, failure to conduct timely performance tests, and failure to conduct appropriate monitoring and associated recordkeeping. It does not include a failure to report on time such activities as start of construction or operation and late reporting of quarterly compliance reports. • A continuing violation ( emission or significant procedural ) shall include violations which, while not necessarily continuous for seven days ( i.e., 168 or more hours ), reoccur regularly or intermittently, and have not been adequately addressed or resolved by the source. A violation of this nature shall become reportable if it cannot be or is not resolved within seven days after the enforcement agency first becomes aware of the violation. Such a violation is Federally-reportable even if a source is in compliance on the last day of the reporting period, i.e., at the time of the traditional static "snapshot." • A significant procedural SIP violation includes such source activities as failure to install CEMS, failure to obtain required permits ( NSR and PSD ), and the like. 1. Any emissions or significant procedural violation of a State consent decree, court order, or administrative order, which was issued by the State to resolve a Federally- enforceable violation. 2. Any violation of a NESHAPS requirement, emissions or procedural. 3. Any emissions or significant procedural violation of an NSPS requirement continuing for, or likely to continue for, at least seven days. 4. Any emissions or significant procedural violation of a Federally-approved or Federally-promulgated SIP requirement( including an NSR or PSD regulation ) continuing for, or likely to continue for, at least seven days . Any violation determined through a Continuous Emission Monitoring System ( CEMS ) or any other continuous monitoring device or method, where such device or method is the official emissions compliance test method prescribed by a Federally-enforceable SIP, NSPS, or NESHAPS requirement, would be covered by and reportable under one of the criteria specified above. ------- REPORTABLE VIOLATION DATA In order for EPA to carry out its national program oversight responsibility, the State must provide adequate information about the reported violation and their enforcement position in a timely fashion to assure EPA that the violation is being properly addressed. Because this places a reporting burden on the State, only essential information needed to satisfy the EPA oversight mission will be required. A portion of these data, as discussed later, will be tracked through CDS. At a minimum, the following information, where applicable, must be provided or made available to EPA for all reportable violations. The information for items 1-3 must be reported to EPA in all instances. Items 4-6 need not be regularly reported to EPA, however, they must be made readily available upon EPA's request. 1. Source and emission point identification data; 2. Nature of violation ( i.e., pollutant and emissions or procedural violation ), location of violation( i.e., point, process or unit ), and the Federally enforceable regulation that has been violated; 3. Method and date of initial detection, e.g., stack test, quarterly compliance report, inspection report, malfunction report; 4. Duration and magnitude if emissions violation; 5. Known/possible causes of violation, e.g., lack of proper O&M, emergency release; and 6. State enforcement position and timeframe of expected action. Once a source has been returned to compliance, the method of compliance verification and the date of compliance achievement must as well be reported in all instances to EPA according to the same frequency as reporting violations. If the Region receives copies of State inspection reports, these may serve in lieu of the above-listed minimum information if the State inspection reports provide sufficiently detailed information, at the required reporting frequency, to permit EPA to meet its mission as stated in this guidance. The minimum information detailed for items 1-3 above should be entered into CDS in a timely fashion. The information required to be regularly reported or made available to EPA from States on all reportable violations may be transmitted either by personal communications, manual reports, or through CDS. However, for items 4 and 5, it will be sufficient if the information is made available to EPA during an onsite visit if the State prefers. ------- FREQUENCY OF REPORTING The information required by this guidance to be reported to EPA must be reported on at least a quarterly basis. For newly reported violators, the initial quarterly report should consist of the minimum information discussed under the "Reportable Violation Data" section, to the extent it is available at that time. Subsequent quarterly reports should at least consist of compliance status changes that occurred during the past quarter. All such information shall be reported to EPA not more than 45 calendar days after the close of the quarter the information became known to the State. METHODS OF COMPLIANCE TRACKING The compliance status of reported violators will be tracked in CDS by two procedures. One will be the traditional static "snapshot" based on the most recently observed compliance assessment of the source, generally, meant to be the compliance status of record as of the end of the quarterly reporting period. This compliance status is defined to be the most recently confirmed assessment of source compliance of Federally-regulated processes, emission points, or units for all Federally-regulated air pollutants. The second compliance indicator is intended to track the performance record of such sources, i.e., a more continuous assessment of compliance, insofar as that information is available to the enforcement agency. For instance, a source could go in and out of compliance multiple times within a quarter's reporting cycle. Yet, if it was in compliance at quarter's end, under the snapshot approach, the source would be reported in CDS as being in compliance with no record of the continuous compliance problems having occurred. A great deal of valuable information about a source's operational characteristics, and difficulties, is lost using such traditional static compliance reporting methods. In addition, a static assessment of compliance does not lend itself to an evaluation of truly representative operating conditions when a physical site visit is made, nor does it encourage source practices that maintain compliance on a more continuous basis. To accommodate this second assessment procedure, a continuous compliance status indicator code will be entered in CDS. With the addition of such an indicator, not only will we know a source's static compliance status, but we will as well know its compliance picture during the reporting period even though its static compliance status may not indicate a violation at quarter's end. The actual form, mechanics, and schedule of CDS modifications necessary to monitor the continuous compliance history of sources will follow in more detailed guidance at a later date. However, the concept is to enable agencies to more effectively monitor the continuous compliance practices of problem sources. EPA USE OF DATA EPA has a bonafide mission of national program oversight. The type and amount of information EPA is requiring the State to provide about reportable violations through this guidance is necessary to achieve that mission. More specifically, EPA will use these data to: ------- 1. Maintain a nationally consistent and uniform Federal/State compliance program; 2. Assess the State's ability to implement and enforce compliance with the Act; 3. Identify the national air compliance program's strengths and weaknesses, and improve the program in areas where the data indicate a need; 4. Determine what is a "realistic" noncompliance rate; and 5. Provide EPA Regions with more detailed background data for monthly conferences with their States. ------- |