UNITEDSTATES ENVIRONMENTAL PROTECTIONAGENCY WASHINGTON,

### D.C.204W

OFFCEOFENFORCEMENl

_. MEMORANDUM SUBJECT: Revised Guidance on E2orcement Dur-.ig Pending SIP Revisions FROM: Michael S. Alushin

# M6&?&LAssociate Enforcement Counsel for Air Office of Enforcement John 

### B. Rasnic, Acting Direct0 Stationary Source Compliance D ision Office of Air Quality Planning and Standards 

# @%!me

TO: Addressees Attached is final guidance on the above-referenced subject. We issued this guidance 

### in draft on December 19, 1990. policy attempts 

### to reflect comments received from several of the Regions submitted in response 

### to that draft. Existing guidance (Aug. 29, 1989) attempted to adapt Agency policy to the unsettled judicial landscape which prompted the Supreme Court togrant certiorari tohear the General Motors case. Now that the Supreme Court has overturned unfavorable precedents which had restricted EPA authority, and the Clean Air Act Amendments of 1990 have added a new twelvemonth SIP revision review deadline, we have developed this guidance to encourage more vigorous federal enforcement 

### of state implementation plans. “high probability1*

### in Subpart 

### D of the new policy. been amended 

### tomake clear that only SIP revisions which have been formally proposed by the State may have a high probability of approval. Assessing the likelihood of approval, prior to reviewing 

### the supporting data contained in a formal application by the State, 

### in most instances would be inherently difficult. Moreover, timely submittal of complete SIP revision applications should be encouraged. impacts” in Part 

### I, Subpart C, to include non-quantifiable impacts such as damage to theAgency’s integrity. 

### so. This same commenter asked that we remove the paragraph discussing the old guidance 

### to avoid confusion. The final

Some commenters asked 

### €or clarification of themeaning of The draft has

One commenter asked that we define “adverse environmental We have done Since the new I

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## .. guidance supersedes the old, we are in'agreement that inclusion of this paragraph would be surplusage and potentially confusing to cursory readers. We, therefore, have removed it. Another commenter suggested that we expand the discussion on factors contributing to prejudice to defendants. have asked that Regions consider, among other added factors,- whether the existence of a collateral suit indicates the defendant has been prejudiced. hak been amplified by our continuing ozone nonattainment problem and an anticipated increase in the number of proposed SIP revisions resultant from the 1990 Amendments. We are hopeful this document will provide valued assistance to the Regions in their efforts to enforce state implementation plans. This guidance supersedes the "Revised Guidance on Enforcement of State Implementation Plan Violations Involving Proposed SIP Revisions," dated August 29, 1989. Please insert this document in its place at Part 

### E, Document #32 of the Clean Air Act Policy Compendium. In response we

In conclusion, the need for more vigorous SIP enforcement

Attachment Addressees: Regional Counsels Regions I-X Regional Counsel Air Contacts Regions I-X 

# .

Air and Waste Management Division Director Air Management Division Directors Regions 

### I, 111, and IX,, Air and Radiation Division Director Region V Air, Pestfcides, and Toxics Management Division Directors Regions 

### .IVand VI ..

Region I1

.I

. . Air and Toxics Division Directors Regions VII, VIII, and 

### X Air Compliance Branch Chiefs Regions I-X..
... 3 Alan Eckert Office of General Counsel Robert Van Heuvelen, Acting Chief Environmental Enforcement Section U.S. Department of Justice
cc: James 

### M. Strock Assistant Administrator 

### for Enforcement William G. Rosenberg Assistant Administrator for Air and Radiation.,.. ~ ...,,....... ... . . ..... .. ..~..

UNITEDSTATESENVIRONMENTALPROTECTIONAGENCY WASHINGTON,D.C. 20460 

### .- MAR 1

## - 1991

OFFEEOFENFORCE-ENl

MEMORANDUM SUBJECT: Revised Guidance On Enforcement During Pending SIP Revisions FROM: Michael S. Alushin Office of Enforcement John 

### B. Office of Air Quality Planning and Standards Stationary
TO: Addressees
Less than a year following our last guidance document addressing the above subject (August 29, 1989) theUnited States Supreme Court handed down its decision in General Motors CorD. v. -~ United States

# (m),-U.S. -1 110 S. Ct72528 (1990); which affirmed theAaencv's authority tobrina enforcement actions even after EPA review 

### of proposed State Implementation Plan (SIP) revisions has exceeded four months. In addition, the Clean Air Act was amended in October, 1990 to include, inter

## alia, a new 12 month review period for proposed SIP revisions. In thewake of both this ruling and the recent amendments' to theAct, this revised guidance is intended to assist the Regions in deciding when tobring enforcement actionswhile SIP

~ 

# ' SllO(a)(3)

## , 42 U.S.C. S7410, of the amended Act imposes a twelvemonth deadline for EPA SIP revision review: Within 12 months of a determination by the Administrator (ora determination deemed by operation of law) under paragraph (1) that a State has submitted a plan or plan revision (or, in theAdministrator's discretion, part thereof) thatmeets theminimum criteria established pursuant to paragraph (l), if applicable 

### (or, if those criteria are not applicable, within 12 months of submission of the plan or revision), theAdministrator shall act on the submission in accordancewith paragraph (3). 

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.. revisions are pending. It should.beemphasked from the outset that the Supreme Court's.ruling in

# ahas substantially lowered the level of caution which must be exercised in deciding whether to bring cases involving proposed SIP revisions, even,in those instances-wherethe new 12 month period has been exceeded. 

### - This. document begins. with a statement of theAgency's new policy 

### on SIP enforcement during fhe pendency.ofproposed revisions. Background material and.asummary of the Supreme Court ruling in

# a follow the policy statement. . -.

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## .

~ 

### I. POLICY The Supreme Court's recent ruling in

# m, in conjunction with, .the1990 amendments to the Clean Air Act, have resulted in a marked shift in,the. law regarding EPA's enforcement authority during the review of proposed SIP revisions. The ruling in

# a affirms theAgency's authority to enforce.existingSIPS, even when theAgency has unreasonably delayed the review of proposed revisions. .compel.Agency action or a diminution in penalties depending on the degree of prejudice caused to the defendant. Although theamendments create a presumpt'ionthat Agency review beyond 12 months constitutes unreasonable delay, our authority to enforce the existing SIP,,through penalties or.injunctiverelief, remains after that date. In short, has effectively reduced, but not eliminated, the level of.cautionto be exercised when the Agency has consumed more than 12 months in reviewing SIP revisions. This guidance encourages 'Regionstovigorously pursue violators of existing SIPs with a sensitivity for the.particular facts of-individualcases. consider, in addition to those enumerated in the October 10, 1990, 'memorandum'on Enhanced Regional Case., Screening, in selecting appropriate enforcement responses 'toSIP violations involving pending review of proposed SIP revisions. The list has been developed in consideration of mrsholding on the issue of the appropriate remedy for unreasonable Agency delay in reviewing proposed SIP'revisions. The holding.istwo-fold;' (1)a defendant '. may obtain reductions in penalties commensurate with a trial court's determination of the degree of prejudice caused to a defendant 

### by EPA's delay; and, (2)EPA will,be subject to collateral citizen suits to compelAgency action for unreasonable delays in reviewing SIP revisions. Following 

### is a list-of

. . factors Regions should consider in determining appropriate enforcement responses in SIP cases affected by proposed revisions ' . which have been pending before theAgency for more than 12 months. The remedy.forunreasonable Agency delay is a suit to

,, The guidance sets forth factors to

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# . Need For InjunctiveRelief In Cases of Onaoinq Noncompliance Despite the existence of unreasonable Agency delay in reviewing a particular SIP revision for more than 12 months, 

### if a case justifies injunctive relief for an ongoing violation, the Region should proceed with civil enforcement. Since the primary purpose of such cases is to compel compliance, the risk of any diminution in penalties 

### is of secondary concern. Cases involving compliance with a proposed revised SIP, which is likely tobe approved, are discussed in Subpart C of this Part. B. Penaltv-Only Cases Involvinu A Lona Period of NoncomDliance In Comparison To The Lenath of Aaency Delav In thewake of

# a,trial courts in enforcement actions will take into consideration the degree of prejudice caused to defendants by Agency delay in reviewing proposed SIP revisions for longer than the 12months allotted by theAct. Therefore, the utility of proceeding with penalties-only actions diminishes in proportion to the degree of prejudice caused to

## 2 defendant.. Regions should consider the period of noncompliance in relation to the period of-unreasonableEPA delay in reviewing SIP revisions beyond 12 months in deciding whether topursue a penalties-only action. Therefore, in those cases which involve a comparatively long period of noncompliance in relation to the length of EPA:s delay in reviewing a proposed SIP revision beyond 12 months, the Region should proceed, absent other factors militating against the suit. If, however, theperiod of noncompliance 

### is short in comparison to the period of EPA delay, and other factors which would tend to increase the penalty (ie. significant environmental impact and economic benefit) are absent, Regions may want to consider withholding the action. The anticipated penalty recovery in such cases may not justify the resource burden placed on theAgency and the Department of Justice to litigate the case. if there exists 

### a need for injunctive relief, Regions should proceed irrespective of any elevated risk that the penalty will Once again,

Please note that the Clean Air Act Amendments of 1990 amended paragraph (e)of S113, 42 U.S.C. S7413, to effectively shift the burden of proof to defendants on the issue of ongoing violations. New §113(e) states that, for the purposes of determining the number of days of violation for which a penalty may be assessed, once the Government makes a prima facie showing, the days of violation shall be presumed to include the date of notice issued to the source of theviolation, and each and every day thereafter until theviolator establishes continuous, or interve'ning, compliance. 2

### . .. 4 

### bereduced. C. 

### Cases Involvincr A 

### High ProbabilityThat The ProDoseU
In instanceswhere the source is in compliancewith a proposed 

### SIP revision submitted in a formal applicationby the State, and which has ahighprobability of approval, the need for injunctiverelief does not exist. However, theremay still exist a justificationforpursuing penalties, particularlywhere the sourcehas been in violation of the existing SIP for a substantialperiod. Therefore,where there exists ahighprobability that the proposed SIP revisionwill be approved, the Region should once again consider the length of noncompliance in relation to the length of unreasonableAgency delay in reviewingthe proposed revision. If the length of noncompliance is substantial in relation to the length of EPA delay, the Regionmay stillwish to pursue a penalties-only claim despite imminent approval of the pending SIP revision. SIP 

### Revision Will Be 

### ADDrOVed 

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However, as in any case, the Region shouldweigh the particular equities of each case in decidingwhether apenaltiesonly claim ismerited. If the source's noncompliancewith the existing SIP 

### is technical in nature, and does not have adverse environmental impacts 

## ,a penalties-only actionmay be inappropriatenotwithstandinga lengthyperiod of noncompliance. Alternatively, in those rare caseswhere a source obtainsrelief through a SIP revisionwhich allows it to gain some economic advantagewith adverse environmental consequences,a penaltiesonly claimmay be warranted; especially if the period of noncompliancewith the existing SIP is lengthy. 4


# .

., 

### Adverse environmental impacts.arenot'limited solely to quantifiable environmental impacts. They alsomay include damage to.the Agency's broader deterrence aims in the regulated communitywhichmhy result fromunaddressed noncompliancewith

..

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### the existing SIP. ,' An 

### example is. an'emission violation caused by the source turning off contro1:equipmentprior to obtaining the SIP revision allowing it to do so. 

### ,Inthis case, the source has obtained an economic benefit fromnoncompliance, while causing adverse environmental impact. A penalties-only action ismerited for the regulatory process violation.

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5 D. Whether The Existence of A Collateral Suit ComDellinq Aaencv Action On A PrODOSed SIP Revision Indicates Preiudice An additional remedy available to regulated entities for Agency delays in reviewing proposed SIP revisions 

### is a collateral suit to compel theAgency to act. 

## - GM clearly ruled that the existing SIP remains enforcfable regardless of the pendency of any proposed revisions, the existence of a collateral suit to compel Agency action on a pending SIP revision may affect the selection of the enforcement response to the extent that it indicates the source is being prejudiced by the delay. has sought to.compe1Agency action on the proposed revision when evaluating whether the defendant is suffering any actual prejudice from EPA's delay on the SIP revision. Although the Supreme Court in

Therefore, the Regions should consider whether the defendant

E. Assessina The Dearee of Prejudice To The Defendant Additional considerations may bear on the extent of possible prejudice to the defendant. Clearly, if a defendant 

### is not in compliance with the proposed SIP revision, then little prejudice has resulted. However, if the defendant 

### is in compliance with the proposed revised SIP, and the revisions to the SIP will significantly reduced the defendant's compliance costs, then EPA delay in processing the proposed revision may very well cause prejudice to the defendant. In this case, the Region should weigh the period of noncompliance against the period of EPA delay as outlined above. Related factorswhich may support a decision to bring a SIP enforcement action include whether the defendant failed tomake a good faith effort to comply with the existing



## . SIP or failed to plan for the possibility that the SIP revision

could be denied.

..

. The Court recognized that the existing SIP remains enforceable despite.delayin review of a proposed revision. "The

. . language 

### of the.[CAA] plainly states that,EPA may bring an action for penalties or injunctive relief whenever a.personis in violation of any requirement of an 'applicable implementation plan'...[t]here can be little doubt that the existing SIP remains the 'applicable implementation plan' even after'the State has submitted a proposed revision

# ...[ tlhere 

### is nothing in the statute that limits EPA's authority toenforce the''app1icable implementation plan' solely to those cases where EPA has not

3. unreasonably delayed action on a proposed.SIP revision.'' 110

.. S.Ct. at 2533-34."

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# . .. , 6 

### F. 

### Pre-Amendments Cases Certain cases may involve a period of noncompliance, and 

### a now completed review of a proposed revision, both of which occurred prior to the 1990 Amendments to theAct. Since the-new 12 month period cannot be applied retroactively, EPA's conduct in reviewing proposed SIP revisionswill be subject to the standard existing before the amendments. In other words, the reasonableness standard set forth in is applicable. Under that standard, the court will look to the particular circumstances surrounding EPAfsreview of the proposed SIP revision to determine if the length of time taken by theAgency was skeasonableol pursuant to themandates of theAPA. If the Agency can demonstrate that the length of time consumed in reviewing the 

### SIP revision was reasonable, then

### a fortiori a defendant cannot be prejudiced by that delay and a district court cannot reduce penalties on this ground. Factors which may support a decision tobring a SIP enforcement action under these rather limited circumstances include whether: (1)the notice and comment period has been 

### . extended; (2) significant comments on proposed SIP revisions were received after the comment period ended; (3) the Office of between theRegion and the State occurred to resolve issues in advance; (5)the proposed revision required a complex equivalency determination; and, (6)theproposed revision required a determination 

### of "Reasonable Further Progress8$in a nonattainment area. , Management and Budget reviewed the disapproval; (4)negotiations

..

### .. 11. 

### Background EPA currently reviews approximately 150 to 200 SIP revisions each calendar year. revisions 

### is fourteenmonths, in fact less than half of these revisions are processed within this time period. Moreover, in some instances, SIP revisions have taken four to five years to review. streamline theprocess 

### (SeeState Implementation Plan Processing Reform: Notice of Procedural Changes, 54 

### FR 2214, January, 19, 1989), and legislation establishing a longer deadline, SIP enforcement cases will continue to be affected by SIP revisions. In thepast several years, the number of SIP enforcement cases has declined substantially. This drop-off is cause for some concern since the number of SIP violations during this period has probably remained constant or even increased. Although there are a number of reasons for thisdiminution, a principal reason 

### is that recent lower court decisions have ruled against the agency in SIP enforcement actions for what was deemed unreasonable agency delay when review of proposed SIP revisions exceeded four months. The Agency is hopeful, however, that the Although theprojected review time for such

Even

### with the administrative steps taken by EPA to.... .. .. .. ..~.../.:..'~ , 

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.I.

.. 

# .. ..

.. 7 Supreme Court's recent decision in

# a, in conjunction with the amendments, will result in an increase in the number of SIP enforcement actions in the coming months.
to increase substantially. With the amendments, SIP calls for ozone nonattainment, and new SIPs resulting from NAAQS revisions 

### (m, PMlo), theAgency's workload will no doubt become heavier. Thus the need for effective new guidance on exercising enforcement discretion in cases involving proposed SIP revisions has been magnified. In the near future, proposed SIP revisions are also expected

In recent years, a number of regulated parties successfully argued 

### in SIP enforcement actions that the four month limitation on EPA review of original SIP submittals likewise applied to the Agency's review of proposed SIP revisions. adverse opinions, we promulgated revised guidance on August 29, 1989 in an attempt to adapt agency policy to the unsettled judicial landscape. The combined effect of &j and the amendments have largely. superseded our existing policy guidance on this issue. We have therefore determined that a summary of 

### GM and the amendments is needed to clarify the current law and provide a guidepost for deciding when to bring SIP enforcement actions while proposed SIP revisions are pending. 111. 

### Summary of General 

### Motors
law governing SIP enforcement, it is helpful to examine the Supreme Court's opinion in

# a in light of the new 12 month review period for proposed SIP revisions. In light of these

In order to fully understand the significant shift in the

A. NO statutorv Deadline In

# a', the Supreme Court ruled that EPA review of proposed

See Duauesne Liaht v. EPA, 698 F.2d 456 (D.C. Cir. 6

_. 1983); Council of Commuter Oraanizations v. Thomas, 799 F.2d 879 (2dCir. 1986); American Cvanamid v. EPA, 810 F.2d 493 (5th Cir. 1987); United States v. General Motors, 876 F.2d 106Q (1stCir. 1989); United States

### v. Alcan Foil, 889 F.2d 1513 (6thCir. 1989). InUnited States v. General Motors CorD., 876 F.2d 1060 7 (1stCir. 1989), the First Circuit construed §llO(a)(3) 

### to implicitly contain the same four month deadline set forth in §llO(a)(2) governing EPA review of original SIPS. Apparently concerned that EPA's institutional interest in enforcing existingi

.. 

## .

..

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### -- a ',SIP revisions was not"1imited toa four month period. GM's principal argument was that since SllO(a)(3)pertaining to SIP revision review requires EPA to approve such revisions if they meet the requirements'.bf' SllO(a)(2)

## , the four month deadline

## -

. contained 

### in SllO(a)(2.) also applies toproposed'SIP revision review. 

### In disposing of GM's argument, the Court concluded that Sllo(a) (3)'s. reference to the "requirements of Sllo(a)(2)"was only directed to.theSubstantive aspects of theproposed SIP revision, not the procedural. A contrary conclusion, stated the requirements of $llO(a) (3). Since §llO(a)(3), like SllO(a)(2), mandated.thatproposed, SIP revisions required reasonable.notice and public hearings at the state'level, to incorporate the procedures of (a)(2) into (a)(3)would be duplicative and result in a discordant reading of the statute. Moreover

## , the Court marshalled further support for $his conclusion by pointing 'tonumerous other provisions in the statute which'expressly imposed the same type of deadlines GM argued existed implicitly in SllO(a)(3). Applying .therule of. statutory construction'which posits that the "expression of one 

### is the exclusion of all others" the Court decided that, had Congress intended a four month deadline for review of proposed SIP revisions 

### to apply, it would have said 

### so. GMls final arwment was grounded on the .language of SllO(9)

## , which gives the Governor of any state the'authorityto suspend any part of.anexisting S.IPthat would result in severe economic disruption if EPA has.failedto act on a proposed SIP revision.

(whichwould alleviate the economic disruption) "within the required four month periodt*. contention,.the Court:concludedthat reference 

### to any required four month period 

### in '§llO(g).did not by itself impose,on EPA a genera1,requirementtoprocess all proposed revisions within four months. Rather,.

### it merely authorized the Governor in such instances to suspend"thatportion of the existing SIP. Whatever may be the correct interpretation of SllO(g)

# ... we do not think this passing mention'can be inflated into a requirement that the [EPAI'proceSseach and every'proposed revision within four months.R 110 S..Ct. at 2538.

~ . 

### 'E. No Enforcem . ' Court, would.obviate the need for the additional procedural

... II; .,

.. . ..,. 

### .

In summarily disposing of this

..

,. .. After deciding that no statutory deadline governed EPA review of,proposedSIP revisions, the Court next held that rather than an enforcement:bar, the appropriate remedy for unreasonable
SIPS conflicted 

### with '

### its-responsibilityto.approveSIP revisions,

,. the court stated: ttwe:think it'dqngeroustodefer in a situation such as thiswhere the''Agencyhas a substantial institutional interest in not imposing constraints on itself.Il ..



## -_ Id: at 1066. L.I .>,,...

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.. Agency delay in proc citizen suit pursuanf"to 5304, compelling agency action, or 

### a reduction in.penaltiesby the district court in those cases where the source 

### is prejudiced by the unreasonable delay.' The Court grounded its ruling on the absence of any reference to an enforcement bar in the statute, as well as S113(b)(2)'s express authorization of actions for penalties or injunctive .relief whenever a source is.inviolation.of the applicable SIP. ing proposed SIP revisionswas either 

### a



# . CONCLUSION With 

### the^ recent 'dmendments

### to'theAct',Congress expressly determined'that.12 months is 

### a reasonable period to review proposed SIP revisions. Therefore, the .amendmentshave probably created a statutory presumption.thatfailure to review a proposed SIP revision within the allotted 12 months is unreasonable. The GM ruling.makesclear, however.,that notwithstanding this.new.12 month statutory period, enforcement of existing SIPS is authorized even when the Agency has exceeded.itsstatutory review deadline.. In determining whether to 'bringSIP enforcement actions involving'proposed SIP revisions which have been reviewed beyond 12 months, Regions should consider the factors enumerated in this docbent on a'case-by-casebasis.

.

### ,.:; you.' Division if you have any questions regarding this policy. Our.staff will be available to discuss specific cases with

Please contact ,Peter Fontaine of the Air Enforcement

.. .,...

I., 

## ..

a According to the First Circuit, in those cases where the Agency's unreasonable delay has resulted in prejudice to the defendant, the District Court 

### is endowed with the authority to reduce penalties. ,"If,for example, a trial court finds that the review process shouldi'havetaken ten months rather than two .years,it may dec1,ine:to -award penalties for,thefourteenmonths of unwarranted delay." 

# - GM, 876 F.2d at 1068. "

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.,...-

.I. ...,. . 

### ,+:,Addressees

.. Regional Counsels Regions 

### I-X Regional Counsel Air Contacts Regions 

### I-X Air .andWaste ganagement Division Director Region 

### 11 Air Management Division Directors Regions'

### I, 111,and'

### IX Air and Radiation Division Director Region 

### V ~ . .-

Air, Pesticides, and Toxics Management Division Directors Regions 

### IV and 

### VI Air and Toxics Division Directors Regions 

### VII, VIII, and 

### X Air Compliance Branch Chiefs Regions 

### I-X Alan Eckert Office of General Counsel Robert Van Heuvelen, Acting Chief Environmental Enforcement Section U.S. Department of Justice
cc: JamesM. Stkock Assistant Administrator for Enforcement William G. Rosenberg Assistant Administrator for Air and Radiation

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