Chapter 5 Page 85

Chapter 5 Compliance &

Enforcement for a TIP

It is essential that your Tribal Implementation Plan (TIP)

includes legally enforceable requirements for measuring

and reporting emissions from the facilities that the tribe

regulates. These requirements will allow your tribe to

determine the success or failure of facilities in achieving

the emissions reductions necessary for reaching the tribe’s

air quality goals. To prove that they are making those

reductions and complying with applicable emission limits,

facilities will need to measure or monitor their emissions

and report them to the tribe. This chapter provides

information on establishing requirements for facilities to

measure and report their emissions, and programs to

enforce the regulations in your TIP through inspections,

notices of violation, and fines. 
 Chapter 5 Page 86

The tribe can require

some facilities to

determine emissions

indirectly and require

other facilities to measure

emissions directly,

depending on their size,

processes, and emissions.

Measuring &

Reporting

Emissions

Which emission

measurement techniques

must the tribe require?

Emission measurement requirements must be included in

your tribe’s TIP.1

 The appropriate measurement technique

may depend on the type of facility, the pollutant to be

measured, the type of process, and/or the nature of the

facility’s emission limitation. The quantity of emissions or

size of facility may also be considered when setting these

requirements because small facilities (which may be minor

sources) may have a compelling need for the most

economical measurement and reporting requirements.

There are three types of emission measurement techniques:

» Indirect measurement

» Periodic direct measurement (or “source testing”)

» Continuous direct measurement

" Indirect measurement Indirect measurement of emissions may be a suitable

requirement for facilities with certain types of emissions. 

For example, the wood furniture industry includes many 

facilities that are sources of volatile organic compounds

(VOC) emissions. A common method for reducing

emissions from wood furniture manufacturers is requiring

limitations on the VOC content of primers, paints, and

other coatings. For example, EPA’s emission limitation for

topcoats (the final coating on a piece of wood furniture) is

0.8 lb VOC/lb solids (as applied).2

 “As applied” is the

actual VOC concentration of the coating after any thinners

have been added. “As purchased” is the VOC content of

the coating before any thinner is added. The EPA has also

set emission limitations for the other coatings used by the

industry.

A furniture manufacturer could demonstrate compliance by

using only “compliant coatings” (coatings that meet the

emission limitations), maintaining records on the VOC

content of coatings, and documenting the calculations of
 Chapter 5 Page 87

the as-applied VOC content of the coatings used. The

furniture manufacturer would need to keep accurate records

of all the specific coatings and thinners it uses and the

volume of coatings and thinners used. It would need to

obtain the VOC content of the coatings and thinners from

the product data sheets that are prepared and certified by

coating and thinner manufacturers. Thus, the furniture

manufacturer would certify emissions rates with records

and calculations, but without directly measuring emissions.

This indirect measurement technique may also be

appropriate for facilities if the individual sources of

emissions are very numerous or dilute and hence cannot

practically be connected to an exhaust vent or control

device. For instance, a large wood furniture factory will

have multiple production lines, dozens of spray booths and

other applicators, and drying areas. The option of using

compliant coatings and following the associated reporting

requirements may be the least costly approach to meeting

and demonstrating compliance with VOC emission limits.

" Periodic direct

measurement

Another measurement option is to directly test emissions

from a source to determine if it is in compliance with its

emission limitations. Source testing is usually conducted

under the most extreme conditions that can be reasonably

expected at the facility, such as maximum and minimum

production capacities. The tribe may require periodic

retesting, for example every one to five years, to ensure that

the source is continuing to comply with its emissions

limitations. 

The EPA has published approved emission test methods for

criteria pollutants in Title 40 of the Code of Federal

Regulations (CFR), part 60 Appendix A and part 40

Appendix M.3

 Links to these test methods can also be

found at EPA’s Emission Measurement Center website at

www.epa.gov/ttn/emc/.

" Continuous direct

measurement

Continuous direct measurement can be accomplished using

a continuous emission monitoring system (CEMS). A

CEMS uses probes placed in the path of exhaust gases to

continuously measure pollutant emissions. Pollutant

analyzer measurements and a conversion equation, graph,
 Chapter 5 Page 88

CEMS monitoring.4

or computer program produce results in units of the

applicable emission limitation or standard. 

Large stationary sources such as power plants, pulp and

paper mills, and smelters usually exhaust large volumes of

combustion or process gasses through stacks. CEMS are

advantageous for these facilities because they create timely

and accurate records of compliance with emissions limits. 

The EPA requires some facilities, such as fossil fuel-fired

power plants, sulfuric acid plants, nitric acid plants, and

fluid bed catalytic cracking unit catalyst regenerators at

petroleum refineries, to use CEMS. 

How can visible emissions

(opacity) be monitored?

Many stationary sources discharge visible emissions in the

form of black and white plumes. Opacity refers to the

degree to which a plume reduces the transmission of light,

obscuring the view of an object in the background. Higher

opacity means greater visibility impairment. 

Implementation plans must include opacity limits for

particulate matter.5

 These regulations often limit opacity

from agricultural and wood waste burners, charbroilers, and

other stationary sources. Compliance can be determined by

observers following the appropriate EPA reference

methods, such as Method 9 - Visual Determination of the

Opacity of Emissions From Stationary Sources.6

 The EPA

trains and certifies observers in the use of these methods.

Your tribe does not need a TIP to participate in training.

Which procedures for

reporting and recordkeeping must the tribe

require?

Your TIP must require the regulated facilities to report and

keep records of the information your tribe needs to

determine compliance with, and enforce, the emissions

limitations and other requirements that your tribe has set. 

The tribe needs to set schedules for submitting reports to

ensure that the information is reported in a timely manner. 

For example, data from CEMS must be reported

periodically (e.g., quarterly) to demonstrate compliance

with emission limits.

The specific information required from a facility depends

on its means of demonstrating compliance with the
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emissions limitations and how your tribe plans on using the

data once it is submitted. Different test methods,

performance standards, and regulations will have different

data reporting requirements. For example, if your tribe

restricts VOC emissions through use of compliant coatings,

your tribe should require coatings users to keep records on

coating usage and to submit semiannual compliance

certifications. The coatings users should possess certified

product data sheets for all regulated coatings. Their records

should document the VOC content (as applied) of each

coating and the procedures for calculating the as-applied

values. The compliance certifications should state that the

coatings documented in the product data sheets are the

coatings actually used at the facility. 

How does a tribe start

measuring emissions?

A tribe starts measuring emissions using one of the three

measurement techniques mentioned previously. Using the

VOC situation above, if a tribe required indirect

measurements, the tribe could request the facility’s records

and then calculate their “as-applied” values. To take

periodic measurements, a tribe could require the facility to

do a source test using a Federal Reference Method, such as

those in 40 CFR Part 60 Appendix A and Part 40 Appendix

M, and then submit the report to the tribe. For continuous

measurement, a tribe could require the facility to submit its

CEMS data report directly to the tribe. When requiring the

facility to undergo a source test, it is recommended that you

understand which Federal Reference Methods are required 

to be able to use the results of the test.

How does a tribe include

measuring and reporting in

your TIP?

In the TIP, a tribe must identify the regulated sources, the

pollutants that must be measured or monitored, acceptable

measurement and monitoring techniques, the data to be

reported, and the frequency of measurement and reporting. 

Tribes must also explain how they will use the reported

data, such as for compliance assurance, and for an

emissions inventory. For more information on measuring

and reporting emissions, see EPA’s Emission Measurement

Center at www.epa.gov/ttn/emc/. 

Your regional EPA office can also provide assistance (see

Appendix A, Tribal Contacts at EPA).
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Developing an

Enforcement

Program

Why is an enforcement

program needed?

It is very important that tribes establish the authority and

procedures necessary to ensure compliance with the

emission limitations, control technology requirements, and

other requirements in their TIP. One basic purpose of

regulations is to list the actions that the owners and

operators of sources must take to help achieve your tribe’s

air quality goals. The second basic purpose is to specify the

penalties that sources will incur for failing to comply with

the regulations. Two appendices in this document can help

your tribe write enforceable regulations: TIP Enforceability

Checklist (Appendix H) and Regulation Development

(Appendix J).

What are the elements of an

enforcement program?

A demonstration that the tribe can enforce the regulations it

adopts must accompany a TIP. And, a TIP should include

an enforcement program for its regulations. For example,

the tribe must have the authority to enforce any regulation

included in the attainment or maintenance strategy or

preconstruction permit program to assure compliance. An

enforcement program should include all of the following

elements:

» Resolutions and laws passed by the tribal government to

establish authority to do inspections and enforce laws

» Procedures as to how emission sources monitor their

emissions and periodically report emissions data and

other information needed to determine compliance to

the tribe

» Procedures for inspecting sources to verify that

emission limits are met, issuing notices of violations,

and assessing fines

» Evidence that the authority to require owners and

operators of emission sources subject to tribal

regulations to monitor processes, measure emissions,

keep records, make reports, etc., similar to EPA’s
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Haze on the Fort Hall

Reservation, home of the

Shoshone-Bannock Tribes. A

major stationary source on

the reservation contributes to

the PM10 nonattainment

designation (see Chapter 1).

(Photo courtesy of the

Shoshone-Bannock Tribes.)

authorities under section 114 of the CAA has been

adopted

» Evidence that trained staff are available and maintained

to perform inspections (described below)

Limitations on a tribe’s criminal enforcement authority will

not prevent TIP approval. In some cases it may be

appropriate for the tribe to enter into a Memorandum of

Agreement with EPA to cover certain elements of its

enforcement program as described in 40 CFR 49.7(a) and

49.8. (Memorandum of Agreement is discussed in the

“Must your tribe posses criminal enforcement authority?”

section.)

How is tribal enforcement

authority established for a

TIP?

The CAA requires your tribe to demonstrate that you have

adequate authority under tribal law to carry out the TIP.7

The tribal government must make the emissions reductions

and limits that are included in the TIP part of the tribal

code. Acting pursuant to tribal law, your tribe’s governing

body must provide a tribal agency, such as the

environmental agency, with the authority for enforcing the

requirements in its TIP. To demonstrate enforcement

authority to EPA, your tribe may need to adopt rules

providing for the authority to enter a regulated facility and

inspect it, conduct stack tests and opacity tests, issue

violation notices and fines, and pursue other enforcement

actions described below. These rules support the TIP but

would be separate from it. Of course Tribal governments

already have their own authority to adopt tribal law.

In order for your tribe to be approved to administer a

federal program (such as the Prevention of Significant

Deterioration, or PSD, program), the tribal government

must request formal approval from the EPA of enforcement

authority as one part of the overall approval of authority to

administer the program. Again, your tribe must adopt rules

to demonstrate enforcement authority.

What enforcement actions

must your tribe be prepared

to take?

There are several enforcement actions your tribe must

incorporate into its program for enforcing EPA-approved

regulations, including:8
 Chapter 5 Page 92

Timucuan Ecological and

Historic Preserve, FL

This preserve was established

to protect one of the last

unspoiled coastal wetlands on

the Atlantic Coast and to

preserve historic and

prehistoric sites within the

area. The area was inhabited

by the native Timucuan

people over four thousand

years before the arrival of the

first Europeans.

(Photo courtesy of the

National Parks Service)

» Performing compliance evaluations

» Issuing administrative sanctions

» Taking civil action

» Issuing sanctions

» Issuing field citations

» Taking emergency action

Compliance evaluations can be full evaluations, partial

evaluations or investigations at a facility.9

 A full

compliance evaluation would determine the current

compliance status of all regulated pollutants from all

regulated emission units within a facility. It would also

assess the facility’s ability to maintain compliance at each

regulated emission unit. A full compliance evaluation

could take a year to complete (up to three years for a very

large facility) and should include a review of all required

reports (e.g., periodic monitoring and excess emissions

reports, malfunction reports), a review of facility records

and operating logs, assessments of control device operating

conditions and performance, assessments of process

parameters and operating conditions, visible emissions

observations, and emissions measurements where necessary

or appropriate. A partial compliance evaluation would

focus on a subset of regulated pollutants, regulatory

requirements, or regulated emission units at the facility. An

investigation is a more in-depth assessment of a particular

issue at a portion of a facility that is usually undertaken

based on information discovered during a full or partial

compliance evaluation.

If someone has complained about an emission source, the

tribe should inspect it promptly to evaluate compliance. 

The tribe should have both planned and unplanned

inspections. If sources know the tribe will be inspecting

regularly for excess emissions, they have a greater incentive

not to emit illegally. Inspectors should receive basic

inspector training in health, safety and respiratory

protection, and training in legal, technical, and

administrative subjects, and communication skills. 

Inspectors should also receive specific training regarding

air pollution sources, controls, regulations, and monitoring

and testing techniques. Inspectors should receive medical

monitoring, if needed.10 Inspectors from the regional EPA
 Chapter 5 Page 93

Natchez Trace Parkway,

Mississippi

Established May 18, 1938,

the parkway follows a

historic Indian trail between

Nashville, TN and Natchez,

MS. Significant historical

sites such as Emerald Mound,

the second largest ceremonial

mound in the United States,

are found throughout the

parkway.

(Photo courtesy of the

National Parks Service)

office will accompany newly trained inspectors at the

tribe’s request.

Administrative sanctions can be written letters to a source

indicating that it is violating a regulation. These sanctions

could take the form of warning letters, violation notices,

and orders requiring the source to come into compliance. 

These sanctions should include how the source must come

into compliance and the schedule by which it must do so. 

The source can discuss the violation and sanction with the

enforcement authority; however, if the order is disregarded,

it may be followed by a civil action.

A civil action is the process by which the enforcement

authority assesses a civil penalty against a source. Civil

penalties may be up to $27,500 per day (adjusted for

inflation) of a violation.11

Sanctions could include restraining orders or orders

prohibiting businesses from functioning normally until they

comply with regulations. Sanctions could also lead to

criminal proceedings.

For a “knowing” violation of the CAA, violators may be

charged with felonies. They may be criminally

prosecuted, fined, and imprisoned. A “knowing” violation

is one in which the responsible party is aware of an

environmental regulation, yet still takes an action that

causes the regulation to be violated. (Additional

information on criminal enforcement is provided below in

the section “Must your tribe possess criminal enforcement

authority?”). Emergency actions can also be taken against

a source when emissions pose an immediate danger.

Are there any occasions that

warrant exceptions to

enforcement actions?

Yes, there may be. Short and infrequent periods of excess

emissions may occur during periods of startup and

shutdown. Sometimes a piece of equipment will

malfunction and it will be necessary for the operator to

bypass pollution control equipment in order to prevent

injury to the people working at the facility. Although EPA

views all excess emissions as violations of the applicable

emission limitation, it recognizes that the imposition of a

penalty for a sudden and unavoidable malfunction caused
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by circumstances beyond the control of the owner or

operator may not be appropriate. Accordingly, the

enforcement authority can use its “enforcement discretion”

during these episodes to refrain from taking an enforcement

action. These types of situations should be examined on a

case-by-case basis. The enforcement authority should

consider whether the source can adequately demonstrate

that the excess emissions could not have been prevented

through careful planning and design, and that bypassing of

control equipment was unavoidable to prevent loss of life,

personal injury, or severe property damage.12

Must your tribe possess

criminal enforcement

authority?

EPA recognizes that, in certain circumstances, Indian

Tribes have limited criminal enforcement authority. Such

limitations will not prevent EPA from approving a TIP if

the tribe and the EPA Region enter a Memorandum of

Agreement that will allow EPA to investigate and prosecute

environmental crimes. Therefore, if the program for which

your tribe is seeking approval for requires it to assert

criminal enforcement authority, but the tribe is precluded

from asserting such authority, your tribe and the EPA

Region must agree to procedures by which the tribe will

provide potential investigative leads to EPA and/or other

appropriate Federal agencies in an appropriate and timely

manner. The procedure must cover all circumstances in

which the tribe cannot exercise applicable enforcement

requirements.13

Does EPA have enforcement

power on reservations?

Yes, EPA has the responsibility and authority, under the

CAA, to enforce the regulations in an approved TIP. The

EPA would exercise its enforcement authority if for some

reason your tribe’s environmental agency does not or 

cannot enforce the EPA approved regulations in your

tribe’s TIP. The EPA will work cooperatively with your

tribe to develop a means to enable the facilities to comply,

providing technical support and consultation as necessary

and consistent with EPA policies. In those situations where

such assistance does not result in compliance, EPA may,

consistent with EPA policies, take criminal, civil, judicial

and/or administrative enforcement actions against the

facilities (whether they are owned or managed by the tribe

or by private parties) in order to protect human health and

the environment. The EPA will notify your tribal
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1. See the CAA section 110(a)(2)(F) for emissions monitoring and reporting requirements

for stationary sources. See 40 CFR 51.210 through 51.214 for monitoring and recordkeeping regulations.

2. More precisely, this limitation is one component of the presumptive norm for RACT for

wood furniture manufacturing operations.

The Cherry Creek

Reservation of the Cheyenne

River Sioux in North Central

South Dakota. 

(Photo courtesy of the

Cheyenne River Sioux.)

government of any anticipated enforcement action and

consult with them on a government-to-government basis

prior to initiating any enforcement action.14

How does a tribe start

developing an enforcement

program?

The EPA provides several sources that can assist your tribe

in developing an enforcement program.15 

» The Office of Enforcement and Compliance Assurance

(OECA) has many resources that may help the tribe

develop and implement enforcement measures.

» The National Enforcement Training Institute (NETI),

run by OECA.

» The American Indian Lands Environmental Support

Project (AILESP), developed by OECA.

» Two appendices in this document can help your tribe

write enforceable regulations: Enforceability Checklist

(Appendix H) and Regulation Development

(Appendix J). Your regional EPA office can also

provide assistance (Appendix A).

Conclusion Adoption and implementation of adequate enforcement

authorities (authorities to collect information, monitor

emissions, perform compliance evaluations, issue

sanctions, assess fines, etc.) is vital to the success of

achieving the emission reductions necessary to reach the air

quality goals your tribe set in their TIP. Once your tribe has

developed its enforcement authorities, it can hold public

hearings, adopt the TIP, and submit it to EPA for approval

as described in Chapter 6.

Endnotes
 Chapter 5 Page 96

3. EPA also has approved test methods for other pollutants in 40 CFR 60 Appendix A, 40

CFR 61 Appendix B, and 40 CFR 63 Appendix A.

4. Image provided courtesy of Air Resource Specialists, Fort Collins, CO.

5. The requirement for states to establish opacity limits in SIPS is given in

40 CFR 51.212(b).

6. Visible emission limits can be determined by following EPA Methods 9 and 22, available

at 40 CFR 60 Appendix A and at the Emission Measurement Center’s promulgated test

methods site (www.epa.gov/ttn/emc/promgate.html).

7. For more information on tribal enforcement authority, see CAA section 110(a)(2)(E).

8. See the CAA section 120 for more information on noncompliance penalties.

9. See the Clean Air Act Stationary Source Compliance Monitoring Strategy, Memorandum

from Michael Stahl, Director of the Office of Compliance, April, 2001.

10. For more information on standards for inspectors, see the Office of Enforcement and

Compliance Assurance guidance document titled, Authorization Criteria for State, Tribal,

and Territorial Inspectors, at http://es.epa.gov/oeca/main/statetribal/

stateandtribalinsp.pdf. For more information on training inspectors, contact your regional

EPA office (see Appendix A).

11. OECA’s description of noncompliance penalties regarding enforcement of Clean Air Act

Amendment programs can be found at

http://www.epa.gov/compliance/civil/programs/caa/caaenfstatreq.html.

12. For more information on EPA guidelines on emissions during malfunctions, startups, and

shutdowns, see the memorandum from S. Herman (EPA Office of Enforcement and

Compliance Assurance) and R. Perciasepe (EPA Office of Air and Radiation), “State

Implementation Plans (SIPs): Policy Regarding Excess Emissions During Malfunctions,

Startup, and Shutdown,” September 1999 (www.epa.gov/ttn/oarpg/t1pgm.html). 

13. For information on criminal enforcement authority and the Memorandum of Agreement,

see 40 CFR Part 49.7(a)(6) and 49.9.

14. Federal power to enforce approved implementation plans is established in the CAA

section 113. The EPA’s Guidance on the Enforcement Principles Outlined in the 1984

Indian Policy (Steve Herman, January 17, 2001), provides information on EPA’s

enforcement policies against Tribal facilities.

15. This chapter gives the following references for developing an enforcement program:

» The Office of Enforcement and Compliance Assurance (OECA) has many
 Chapter 5 Page 97

enforcement resources, including “virtual” (telecommunications-based) 

Compliance Assistance Centers for specific industry sectors that have large numbers

of small businesses and entities that face federal regulation

(http://es.epa.gov/oeca/main/compasst/compcenters. html). The sectors include

printing, metal finishing, automotive services and repair, printed wiring boards, small

chemical manufacturers, and agriculture. The centers are designed to provide

comprehensive, easy-to-understand compliance information, fact sheets, and other

tools.

» OECA also runs NETI, the National Enforcement Training Institute, which is

responsible for training federal, state, local, and tribal lawyers, inspectors, civil and

criminal investigators and technical experts in the enforcement of environmental

laws. The NETI provides courses on case support, statute enforcement, compliance

assistance, and environmental criminal enforcement. Training is provided at EPA

Regional offices, other state sites, and NETI training centers in Washington, DC,

Colorado, and Georgia. For more information, see www.epa.gov/oeca/neti or call 1-

800-EPA-NETI.

» OECA has also developed the American Indian Lands Environmental Support Project

(AILESP) which includes a database with recent multi-media point-source releases,

the potential impacts of contaminants, and recent compliance and enforcement

histories for facilities located on and within five kilometers of tribal lands

(http://es.epa.gov/oeca/ailesp). The AILESP database assimilates and synthesizes

disparate data sources and integrates them into a geographic information system (GIS)

that is publicly available.
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