UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 204W 

OFFCE OF ENFORCEMENl 

_. 

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 to grant certiorari to hear 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 twelve month 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 to make 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 the Agency’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 the meaning of 

The draft has 

One commenter asked that we define “adverse environmental 

We have done 

Since the new 

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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 .IV and 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 
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

.- 

MAR 1 - 1991 

OF FEE OF ENFORCE-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) the United States 

Supreme Court handed down its decision in General Motors CorD. -~ v. 

United States (m), - U.S. -1 110 S. Ct72528 (1990); which 

affirmed the Aaencv's authority to brina 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 the wake of both this ruling and the recent amendments' 

to the Act, this revised guidance is intended to assist the 

Regions in deciding when to bring enforcement actions while SIP 

~ ' SllO(a) (3) , 42 U.S.C. S7410, of the amended Act imposes 

a twelve month deadline for EPA SIP revision review: 

Within 12 months of a determination by the 

Administrator (or a determination deemed by operation 

of law) under paragraph (1) that a State has submitted 

a plan or plan revision (or, in the Administrator's 

discretion, part thereof) that meets the minimum 

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), the Administrator shall act on the 

submission in accordance with paragraph (3). 

@ ~""ted on Recycled Paper 

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revisions are pending. It should.be emphasked from the outset 

that the Supreme Court's.ruling in a has substantially lowered 

the level of caution which must be exercised in deciding whether 

to bring cases involving proposed SIP revisions, even, in those 

instances-where the new 12 month period has been exceeded. - 

This. document begins. with a statement of the Agency's new 

policy on SIP enforcement during fhe pendency.of proposed 

revisions. Background material and.a summary 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, 

.the 1990 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 the Agency's authority to enforce.existing SIPS, even 

when the Agency 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'ion that Agency review beyond 12 

months constitutes unreasonable delay, our authority to enforce 

the existing SIP,, through penalties or.injunctive relief, remains 

after that date. In short, has effectively reduced, but not 

eliminated, the level of.caution to be exercised when the Agency 

has consumed more than 12 months in reviewing SIP revisions. 

This guidance encourages 'Regions to vigorously pursue 

violators of existing SIPs with a sensitivity for the.particular 

facts of-individual cases. 

consider, in addition to those enumerated in the October 10, 

1990, 'memorandum'on Enhanced Regional Case., Screening, in 

selecting appropriate enforcement responses 'to SIP violations 

involving pending review of proposed SIP revisions. The list has 

been developed in consideration of mrs holding on the issue of 

the appropriate remedy for unreasonable Agency delay in reviewing 

proposed SIP'revisions. The holding.is two-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 compel Agency 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 the Agency for more than 12 

months. 

The remedy.for unreasonable Agency delay is a suit to 

,, 

The guidance sets forth factors to 

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. Need For Injunctive Relief 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 to be 

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 the wake 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 12 months allotted by the Act. 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-unreasonable EPA delay in reviewing SIP 

revisions beyond 12 months in deciding whether to pursue 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, the period 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 the Agency 

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 the violation, and each and every 

day thereafter until the violator establishes continuous, or 

interve'ning, compliance. 

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be reduced. 

C. Cases Involvincr A High Probability That The ProDoseU 

In instances where the source is in compliance with a 

proposed SIP revision submitted in a formal application by the 

State, and which has a high probability of approval, the need for 

injunctive relief does not exist. However, there may still exist 

a justification for pursuing penalties, particularly where the 

source has been in violation of the existing SIP for a 

substantial period. 

Therefore, where there exists a high probability that the 

proposed SIP revision will be approved, the Region should once 

again consider the length of noncompliance in relation to the 

length of unreasonable Agency delay in reviewing the proposed 

revision. If the length of noncompliance is substantial in 

relation to the length of EPA delay, the Region may still wish to 

pursue a penalties-only claim despite imminent approval of the 

pending SIP revision. 

SIP Revision Will Be ADDrOVed 

- 

However, as in any case, the Region should weigh the 

particular equities of each case in deciding whether a penaltiesonly claim is merited. If the source's noncompliance with the 

existing SIP is technical in nature, and does not have adverse 

environmental impacts , a penalties-only action may be 

inappropriate notwithstanding a lengthy period of noncompliance. 

Alternatively, in those rare cases where a source obtains relief 

through a SIP revision which allows it to gain some economic 

advantage with adverse environmental consequences, a penaltiesonly claim may be warranted; especially if the period of 

noncompliance with the existing SIP is lengthy. 4 

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Adverse environmental impacts .are not' limited solely to 

quantifiable environmental impacts. They also may include damage 

to.the Agency's broader deterrence aims in the regulated 

community which mhy result from unaddressed noncompliance with .. 

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the existing SIP. ,' 

An example is. an' emission violation caused by the 

source turning off contro1:equipment prior to obtaining the SIP 

revision allowing it to do so. ,In this case, the source has 

obtained an economic benefit from noncompliance, while causing 

adverse environmental impact. A penalties-only action is merited 

for the regulatory process violation. 

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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 the Agency 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.compe1 Agency 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 factors which may support a decision 

to bring a SIP enforcement action include whether the defendant 

failed to make 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.delay in 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.person is 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 to enforce 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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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 the Act. Since the-new 

12 month period cannot be applied retroactively, EPA's conduct in 

reviewing proposed SIP revisions will 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 EPAfs review of the proposed SIP 

revision to determine if the length of time taken by the Agency 

was skeasonableol pursuant to the mandates of the APA. 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 to bring 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 the Region and the State occurred to resolve issues in 

advance; (5) the proposed revision required a complex equivalency 

determination; and, (6) the proposed 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 fourteen months, 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 the process (See State 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 the past 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 this diminution, 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 the projected review time for such 

Even with the administrative steps taken by EPA to 
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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), the Agency'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 

(2d Cir. 1986); American Cvanamid v. EPA, 810 F.2d 493 (5th Cir. 

1987); United States v. General Motors, 876 F.2d 106Q (1st Cir. 

1989); United States v. Alcan Foil, 889 F.2d 1513 (6th Cir. 

1989). 

In United States v. General Motors CorD., 876 F.2d 1060 7 

(1st Cir. 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 existing 
i 

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a 

',SIP revisions was not"1imited to a 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 to proposed' 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.the Substantive aspects of the proposed SIP 

revision, not the procedural. A contrary conclusion, stated the 

requirements of $llO(a) (3). Since §llO(a) (3), like SllO(a) (2), 

mandated.that proposed, 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 'to numerous other provisions in the 

statute which'expressly imposed the same type of deadlines GM 

argued existed implicitly in SllO(a)(3). Applying .the rule 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'authority to suspend 

any part of.an existing S.IP that would result in severe economic 

disruption if EPA has.failed to act on a proposed SIP revision. 

(which would alleviate the economic disruption) "within the 

required four month periodt*. 

contention,.the Court:concluded that reference to any required 

four month period in '§llO(g).did not by itself impose, on EPA a 

genera1,requirement to process all proposed revisions within four 

months. Rather,. it merely authorized the Governor in such 

instances to suspend"that portion 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'proceSs each 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 

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In summarily disposing of this 

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After deciding that no statutory deadline governed EPA 

review of,proposed SIP revisions, the Court next held that rather 

than an enforcement:bar, the appropriate remedy for unreasonable 

SIPS conflicted with ' its -responsibility to .approve SIP revisions, ,. 

the court stated: ttwe:think it'dqngerous to defer in a situation 

such as this where the''Agency has a substantial institutional 

interest in not imposing constraints on itself.Il 

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-_ 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.penalties by 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.in violation.of the applicable SIP. 

ing proposed SIP revisions was either a 

. CONCLUSION 

With the^ recent 'dmendments to 'the Act', Congress expressly 

determined'that.12 months is a reasonable period to review 

proposed SIP revisions. Therefore, the .amendments have probably 

created a statutory presumption.that failure to review a proposed 

SIP revision within the allotted 12 months is unreasonable. The 

GM ruling.makes clear, however., that notwithstanding this.new.12 

month statutory period, enforcement of existing SIPS is 

authorized even when the Agency has exceeded.its statutory review 

deadline.. In determining whether to 'bring SIP 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-case basis. . ,.:; 

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 

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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'have taken ten months rather than two 

.years, it may dec1,ine:to -award penalties for,the fourteen months 

of unwarranted delay." - GM, 876 F.2d at 1068. 

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...,. . ,+:, 
Addressees .. 

Regional Counsels 

Regions I-X 

Regional Counsel Air Contacts 

Regions I-X 

Air .and Waste ganagement Division Director 

Region 11 

Air Management Division Directors 

Regions' I, 111, and' IX 

Air and Radiation Division Director 

Region V 

~ 

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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: James M. Stkock 

Assistant Administrator for Enforcement 

William G. Rosenberg 

Assistant Administrator for Air and Radiation . 

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