U.S. ENVIRONMENTAL PROTECTION AGENCY 

OFFICE OF INSPECTOR GENERAL 

Catalyst for Improving the Environment 

 Evaluation Report 

EPA Oversight and Policy for 

High Priority Violations of 

Clean Air Act Need Improvement 

 Report No. 10-P-0007 

 October 14, 2009 
Report Contributors: Charles Brunton 

 Dan Engelberg 

Fred Light 

 Renee McGhee-Lenart 

 Gerry Snyder 

Abbreviations 

AFS Air Facility System 

CAA Clean Air Act 

EPA U.S. Environmental Protection Agency 

HPV High Priority Violation 

NOV Notice of Violation 

OECA Office of Enforcement and Compliance Assurance 

OIG Office of Inspector General 
U.S. Environmental Protection Agency 10-P-0007 

October 14, 2009 Office of Inspector General 

At a Glance
 

Catalyst for Improving the Environment 

Why We Did This Review 

According to U.S. 

Environmental Protection 

Agency (EPA) data, in many 

instances EPA and States are 

not addressing high priority 

violations (HPVs) of the Clean 

Air Act in a timely manner 

(generally within 270 days). 

We undertook this review to 

determine why this is 

occurring and what 

improvements are planned. 

If HPVs are not addressed in a 

timely manner, continued 

emissions from facilities may 

result in significant 

environmental and public 

health impacts, deterrence 

efforts being undermined, and 

unfair economic benefits 

being created. 

Background 

In 1998, EPA revised a 1992 

policy to prioritize and focus 

on the most environmentally 

important violations of the 

Clean Air Act by stationary 

sources. EPA and States 

jointly determine which 

agency will be taking the lead 

for each HPV case. 

For further information, 

contact our Office of 

Congressional, Public Affairs 

and Management at 

(202) 566-2391. 

To view the full report, 

click on the following link: 

www.epa.gov/oig/reports/2010/ 

20091014-10-P-0007.pdf 

EPA Oversight and Policy for High Priority 

Violations of Clean Air Act Need Improvement 

What We Found 

HPVs were not being addressed in a timely manner because regions and States did 

not follow the HPV policy, EPA Headquarters did not oversee regional and State 

HPV performance, and regions did not oversee State HPV performance. According 

to EPA data, about 30 percent of State-led HPVs and about 46 percent of EPA-led 

HPVs were unaddressed after 270 days. This can result in significant 

environmental and public health impacts. 

Regions are not ensuring that sources receive notices of violation within 60 days. 

None of the regions reviewed held meetings with their States after HPVs had been 

unaddressed for 150 days to discuss case strategy. Several States addressed HPVs 

with informal rather than formal enforcement actions. EPA Headquarters did not 

use the “Watch List” and trend reports to assess performance of regions and States 

in addressing HPVs. The regions did not ensure that State-led HPVs are addressed 

in a timely manner by taking over delinquent State HPV cases. Regions also did 

not always ensure that States entered accurate data into the Air Facility System 

database. Although EPA noted some of these deficiencies, it has not developed a 

plan to correct them. 

EPA regions reviewed generally conducted status meetings with States to discuss 

HPVs. Also, EPA implemented the State Review Framework as a means to better 

evaluate the performance of its Clean Air Act compliance and enforcement 

programs. 

What We Recommend 

To improve oversight over HPVs, we recommend that EPA (1) direct regions to 

comply with the HPV policy, (2) make needed revisions to the policy, and 

(3) implement proper management controls over HPVs. 

EPA concurred with two of the recommendations but did not provide sufficient 

detail for us to agree with their proposed corrective actions. EPA did not agree 

with a third recommendation indicating it needed to revise HPV policy because it 

intends to conduct a review of the policy before committing to revising the policy. 

For reasons detailed in the report, we believe the recommendation is valid. For 

resolution purposes, all recommendations are considered “undecided.” 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

OFFICE OF 

INSPECTOR GENERAL 

October 14, 2009 

MEMORANDUM 

SUBJECT:	 EPA Oversight and Policy for High Priority Violations 

of Clean Air Act Need Improvement 

Report No. 10-P-0007 

FROM:	 Wade T. Najjum 

Assistant Inspector General 

Office of Program Evaluation 

TO: Cynthia Giles 

Assistant Administrator, Office of Enforcement and Compliance Assurance 

This is our report on the subject evaluation conducted by the Office of Inspector General (OIG) 

of the U.S. Environmental Protection Agency (EPA). This report contains findings that describe 

the problems the OIG has identified and corrective actions the OIG recommends. This report 

represents the opinion of the OIG and does not necessarily represent the final EPA position. 

Final determinations on matters in this report will be made by EPA managers in accordance with 

established audit resolution procedures. 

The estimated cost of this report – calculated by multiplying the project’s staff days by the 

applicable daily full cost billing rates in effect at the time – is $673,050. 

Action Required 

In accordance with EPA Manual 2750, you are required to provide a written response to this 

report within 90 calendar days. You should include a corrective actions plan for agreed upon 

actions, including milestone dates. However, as discussed in the report, we do not believe your 

planned actions meet the intent of the recommendations and all recommendations are considered 

undecided. We ask that you review our comments and reconsider your responses. We have no 

objections to the further release of this report to the public. This report will be available at 

http://www.epa.gov/oig. 

If you or your staff have any questions regarding this report, please contact me at (202) 566-0832 

or najjum.wade@epa.gov, or Dan Engelberg at (202) 566-0830 or engelberg.dan@epa.gov. 
EPA Oversight and Policy for High Priority 10-P-0007 

Violations of Clean Air Act Need Improvement 

Table of Contents 

Purpose........................................................................................................................ 1 

Background ................................................................................................................. 1 

Noteworthy Achievements......................................................................................... 2 

Scope and Methodology............................................................................................. 2 

Results of Review ....................................................................................................... 3 

EPA Regions and States Not Complying with HPV Policy................................... 3 

EPA Headquarters and Regions Not Providing Effective Oversight .................... 5 

Conclusions................................................................................................................. 7 

Recommendations...................................................................................................... 7 

Agency Comments and OIG Evaluation ................................................................... 7 

Status of Recommendations and Potential Monetary Benefits.............................. 8 

Appendices 

A Examples of HPV Identification Criteria........................................................... 9 

B CAA Stationary Source Enforcement Programs ............................................. 10 

C Prior Reports ...................................................................................................... 12 

D Agency Comments............................................................................................. 13 

E OIG’s Evaluation of Agency Comments........................................................... 23 

F Distribution ......................................................................................................... 26 
10-P-0007 

Purpose 

High priority violations (HPVs) are significant violations of a federally-enforceable regulation 

by major and synthetic minor1 Clean Air Act (CAA) stationary sources. U.S. Environmental 

Protection Agency (EPA) policy states that HPVs should be addressed (formal enforcement 

action taken) or resolved (compliance achieved) within 270 days. According to EPA data, about 

30 percent of State-led HPVs and about 46 percent of EPA-led HPVs were unaddressed after 270 

days.2 If HPVs are not addressed in a timely manner, continued emissions from facilities may 

result in significant environmental and public health impacts, deterrence efforts being 

undermined, and unfair economic benefits being created. We undertook this review to determine 

why some EPA regions and States are not addressing HPVs under the CAA in a timely manner 

as set out in Agency policy, and what improvements are planned. 

Background 

Congress passed the CAA in 1970 establishing standards for allowable emissions by 

facilities that emit air pollutants. The CAA gave EPA and delegated States the authority to 

enforce those standards, but vests EPA with responsibility for enforcing the law. EPA may 

move independently to designate an HPV and assume the lead of an HPV if a State is unable 

or unwilling to act. EPA’s Office of Enforcement and Compliance Assurance (OECA) is 

responsible for ensuring that the regulated community complies with the CAA. 

In 1992, EPA created a policy to focus on significant violators of the CAA’s stationary source 

programs. In 1998, EPA issued a revised policy, The Timely and Appropriate Enforcement 

Response to High Priority Violations (HPV policy). The HPV policy prioritizes and focuses on 

the most important and environmentally significant violations of major and synthetic minor 

stationary sources of air pollution. The policy contains threshold criteria to determine whether a 

violation is an HPV and sets guidance for addressing cases in a timely and appropriate manner. 

See Appendix A for examples of HPV identification criteria. Continued emissions from sources 

with HPVs may impact communities’ human health and the environment if HPVs are not 

addressed in a timely manner. Also, compliance and enforcement programs are supposed to 

ensure a level playing field for industry and deterrence for noncompliance. See Appendix B for 

information on CAA stationary source enforcement programs. 

The enforcement “clock” for HPVs starts no later than 45 days after EPA or the State first 

receives information concerning a federally enforceable violation. If during this 45-day period 

the enforcement agency decides that additional monitoring or analysis is required to determine or 

confirm the violation, the clock does not start until the earlier of the date of receipt of such 

additional data or the 90th day after the violation was initially discovered. The date the “clock 

starts” is called “day zero.” 

1

According to EPA, a synthetic minor is a source that avoids permitting under Title V, New Source Review, or the 

requirements of the Maximum Achievable Control Technology rules by taking restrictions in a federally enforceable 

minor source permit that limits the annual emissions of any Title V, New Source Review, or Maximum Achievable 

Control Technology-regulated pollutant to below major source thresholds for those pollutants. 2 Within 300 days if a lead change occurs. 

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An essential part of tracking HPVs is assuring that all HPVs are promptly and accurately entered 

into the EPA national air database, the Air Facility System (AFS). AFS contains compliance and 

enforcement data for stationary sources of air pollution regulated by EPA, State, and local air 

pollution agencies. Stationary source data in AFS are collected and updated by State and/or local 

agencies. EPA regions occasionally assist States in entering data into AFS. 

In January 2004, EPA designed the Facility Watch List (“Watch List”) to assist EPA and the 

States in tracking facilities with serious or chronic violations of environmental laws but with 

no formal enforcement response. As an automated tool, the Watch List provides the regions and 

States a list of facilities that have not been addressed or resolved in a timely manner. 

Noteworthy Achievements 

EPA regions we reviewed generally conducted monthly, bimonthly, and/or quarterly status 

meetings with States and local agencies to discuss HPVs. EPA Headquarters and regions also 

implemented the State Review Framework as a means to perform a consistent approach for 

overseeing the programs. EPA reviews each State every 4 years to determine how well its 

compliance and enforcement programs are operating for the CAA, Clean Water Act, and 

Resource Conservation and Recovery Act. EPA conducted its first rounds of reviews from 2004 

to 2007 and identified the lack of timely and appropriate enforcement as an issue. EPA released 

the State review reports to the public in July 2009. 

Scope and Methodology 

We conducted our evaluation from September 2008 to August 2009 in accordance with generally 

accepted government auditing standards. Those standards require that we plan and perform the 

evaluation to obtain sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our evaluation objective. We believe the evidence obtained 

provides a reasonable basis for our findings and conclusions based on our evaluation objective. 

We reviewed EPA region-led and State-led HPV cases classified as HPVs on or between 

October 1, 2005, and December 31, 2007. We cut off our review of data at December 31, 2007, 

so that any HPVs that had a day zero on that date would have at least 270 days to be addressed. 

We limited the scope of our review to the timeliness of addressing HPVs. We did not review 

whether States were identifying or resolving HPVs in a timely manner. 

We obtained AFS data from EPA Headquarters for all HPV cases as of October 9, 2008, which 

included 3,753 HPV cases during our time period. We did not conduct a data reliability review 

of AFS. We calculated days unaddressed by subtracting the date addressed from the day zero. If 

the HPV had not yet been addressed, we used the date the data were run. We sorted the data into 

State-led and EPA-led HPV cases to determine which States and EPA regions to interview. 

We selected States in Regions 1, 5, 7, and 8 for our review because of the high rate of 

unaddressed HPVs in their respective States. We also selected Region 6 and the State of Texas 

for our review because OECA recommended we visit Texas. Overall 57 percent of the EPA-led 

cases were located in the five regions we reviewed and 47 percent of the State-led cases were 

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located in those regions. We interviewed EPA regional staff and State staffs in Colorado and 

Texas to determine why HPV cases are not addressed within 270 days. We reviewed meeting 

notes between the 5 selected regions and 25 States.3

 We also reviewed 20 EPA regional HPV 

case files and the findings in EPA Office of Inspector General (OIG) and U.S. Government 

Accountability Office reports (see Appendix C). 

We obtained State Review Framework reports completed between 2003 and 2007 for each State 

from EPA. We reviewed relevant sections of the reports to determine what problems EPA 

identified. 

Results of Review 

HPVs were not being addressed in a timely manner because regions and States did not follow the 

HPV policy, EPA Headquarters did not oversee regional and State HPV performance, and 

regions did not oversee State HPV performance. According to EPA data, about 30 percent of 

State-led HPVs and about 46 percent of EPA-led HPVs were unaddressed after 270 days. We 

noted that: 

•	 Regions did not ensure that sources received notices of violation (NOVs) within 60 days; 

the CAA amendments of 1990 stipulate that issuing an NOV shifts the burden of proof of 

continuous compliance to the source. 

•	 None of the regions and States reviewed held meetings after HPVs had been unaddressed 

for 150 days to discuss case strategy. 

•	 Several States addressed HPVs with informal rather than formal enforcement actions. 

•	 EPA Headquarters did not use the Watch List or trend reports to assess the performance 

of regions and States in addressing HPVs. 

•	 Regions did not ensure that State-led HPVs were addressed in a timely manner by taking 

over delinquent State HPV cases. 

•	 Regions did not always ensure that States input accurate data into AFS. 

Although EPA acknowledged these deficiencies, it has not developed a plan to correct them. 

If HPVs are not addressed in a timely manner, continued emissions from facilities may result in 

significant environmental and public health impacts, deterrence efforts being undermined, and 

unfair economic benefits being created for violating sources. 

EPA Regions and States Not Complying with HPV Policy 

Regions and States we reviewed did not comply with key provisions of the HPV policy. Air 

enforcement staff from three of five regions told us they did not ensure States were issuing 

NOVs in a timely manner. Regions did not hold 150-day meetings with States. Moreover, 

several States addressed HPVs with informal rather than formal enforcement actions. 

3

 Region 7 staff did not document its meetings with Missouri, while Region 8 and North Dakota did not meet 

because the State did not have any HPVs during our review period. 

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Also, the HPV policy is missing key elements. The HPV policy does not describe the oversight 

steps that need to be taken once an HPV had not been addressed for over 270 days. The HPV 

policy also does not clearly lay out the roles and responsibilities of EPA Headquarters and 

regions, the States, and local agencies. EPA should revise its HPV policy to include these 

elements. 

Details on noncompliance with key provisions of the HPV policy that did exist follow. 

NOVs Not Issued in 60 days 

Air enforcement staff in three of five regions said they do not monitor whether States 

issue NOVs within 60 days. According to the HPV policy, an NOV shall be issued 

within 60 days of day zero. The State or local agency shall routinely issue an NOV, an 

informal action, to the source. If the State has not taken such action, EPA shall 

immediately issue an appropriate notice. The CAA amendments of 1990 stipulate that 

issuing an NOV shifts the burden of proof of continuous compliance to the source. 

NOVs should be issued so that the source has to prove its compliance status. This cannot 

be done when regions do not monitor NOV issuance. For example, according to the 

Region 7 Kansas State Coordinator, Kansas typically waits to issue an NOV until after 

negotiations have stalled with a source. Colorado usually issues a compliance advisory to 

the source before issuing an NOV. In one instance, Colorado issued a compliance 

advisory on February 23, 2006, but did not issue an NOV until September 6, 2006, or 

214 days after the HPV was established. This conflicts with the agreed-upon statutory 

role of NOVs as an early signal to violators that they need to return to compliance. 

150-Day Case Strategy Meetings Not Held 

Regions did not hold 150-day meetings with States. According to the HPV policy, EPA 

and States will conduct 150-day case progress evaluation meetings. If the State or local 

agency has the initial lead and the case has not been resolved/addressed by day 150, the 

HPV policy directs that EPA and the State or local agency hold a focused, case-specific 

consultation concerning overall case strategy, including a discussion of effective means 

for expeditiously addressing/resolving the case. Possible strategies could include 

continued deferral to the State or local agency, EPA assumption of the case, or 

continuation of the case in a work-sharing arrangement between EPA and the State or 

local agency. Air enforcement staff from three of the five EPA regions reviewed said 

their regular status meetings substituted for the 150-day meetings. However, none of the 

meeting minutes reviewed provided evidence that these case-specific consultations 

concerning overall case strategy were being held for HPVs. 

States Address HPVs with Informal Enforcement Actions 

Several States reviewed did not follow the HPV policy because they addressed violations 

with informal rather than formal enforcement actions. The HPV policy states HPVs are 

to be addressed by a legally-enforceable and expeditious administrative or judicial order, 

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or by being referred to the (State) attorney general or (Federal) Department of Justice for 

an adjudicatory enforcement hearing or judicial action. Illinois was not following the 

HPV policy because it used informal, non-binding enforcement actions to address HPVs. 

The Region 5 Illinois section chief said there have been instances where Illinois issued 

these informal, non-binding actions and a source ignored them. EPA identified this issue 

in Illinois’ State Review Framework review in 2007, but it has not been resolved. Utah 

was not following the HPV policy because it used the date it issued a compliance 

advisory (similar to an NOV) as the date of the addressing action; a compliance advisory 

is not an addressing action as defined in the HPV policy. 

EPA Headquarters and Regions Not Providing Effective Oversight 

EPA Headquarters did not provide effective oversight because it did not use management 

controls and information to assess region and State performance in addressing HPVs. Likewise, 

the regions did not effectively oversee the States to ensure State-led HPVs were addressed in a 

timely manner by taking over the lead of HPV cases. As a result, sources remain out of 

compliance longer than they should, leaving the potential for excess pollutants to be emitted. 

EPA Headquarters Not Using Key Management Controls and Overseeing 

Regions and States 

EPA Headquarters did not use the HPV Watch List (which lists HPVs that have not been 

addressed in a timely manner) and trend reports to assess the region and State 

performance in addressing HPVs. EPA oversees State performance during State Review 

Framework reviews but only conducts those reviews every 4 years. 

The Director of OECA’s Office of Compliance said that EPA Headquarters and the 

regions no longer follow Watch List standard operating procedures and manager (trend) 

reports are no longer being done due to a “lack of resources.” According to the Watch 

List Standard Operating Procedures, EPA Headquarters should be performing two 

national reviews per year that include all regions: a core review and an administrative 

review. The core review would identify when data suggests that HPV timeliness is not 

consistent with policies or national practice. The administrative review would ensure that 

the appropriate Watch List information is being submitted by the regions and data quality 

errors do not persist in the data systems. Some required steps of these reviews are not 

being conducted. 

EPA Headquarters oversees States by performing the State Review Framework. Each 

State is reviewed once every 4 years, and EPA completed its first round of reviews in 

2007. During the first round of reviews, EPA found that 16 States had 50 percent or more 

of their HPVs unaddressed for longer than 270 days. For 9 of the 50 States, EPA did not 

document the percentage of HPVs that were not addressed in a timely manner in the State 

Review Framework. As a result of the first round of State Review Frameworks, EPA 

made recommendations to States, developed a white paper summarizing the problems 

States have in taking timely and appropriate enforcement, and identified timely and 

appropriate enforcement as one of four high priority national issues that must be 

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addressed by EPA and the States. However, the Agency has not taken action to solve the 

problems with timely and appropriate enforcement identified in the first round of State 

Review Frameworks. 

Regions Not Providing Effective Oversight of State Programs 

Regions do not provide effective oversight of States to ensure HPVs are addressed timely 

by taking over HPV cases. Regions did not use their authority to take over State-led 

HPVs except in rare cases. The regions also did not ensure that the data States enter into 

AFS were accurate. 

EPA regions did not assume the lead for any unaddressed State-led HPVs due to 

timeliness concerns. The HPV policy states “EPA shall assume the lead at any time in 

cases when it becomes apparent that the State is unable or unwilling to act to resolve a 

violation in a timely and appropriate manner.” The regions monitored HPV cases in 

general status meetings, but they rarely took action even though 9 percent of all State-led 

HPVs were unaddressed for 540 or more days. Further, in those rare instances when 

EPA did assume the responsibility for HPVs that were unaddressed longer than 270 days 

(7 of the 1,037 instances), none of the 7 were acted upon due to timeliness concerns. 

For example, Illinois had 56 HPV cases (about 33 percent of its cases) and Wisconsin 

53 HPV cases (about 88 percent of its cases) that were unaddressed for over 270 days 

during our review period. Region 5 only assumed the lead for one HPV in Wisconsin, 

but this was for reasons other than timeliness. Neither State has the authority to issue 

administrative penalties. According to Region 5 air enforcement staff, one of the reasons 

HPV cases go unaddressed for so long in Wisconsin is the lack of these authorities. State 

options to address HPVs are to refer HPV cases to the State Attorney General or for EPA 

to assume the lead. Regional air enforcement staff said they were willing to help the 

States if they asked for assistance but they did not want to assume the lead. 

Regions did not always ensure that data in AFS were accurate even though reliable 

information is a basic element of oversight and management control. Regions did not 

always ensure that States were linking HPVs with key enforcement actions. OIG has 

reported similar data problems in its Fiscal Year 2009 report on management challenges. 

One HPV in Region 5 was listed in the AFS database as being unaddressed for 992 days, 

which should have triggered action by the region; the State had addressed the HPV but 

did not link the addressing action and violation in AFS. Despite holding monthly 

meetings with Illinois, Region 5 did not identify this error in AFS for nearly 2 years. Due 

to the inaccuracies in the AFS data, EPA is downloading AFS data and providing it to 

States to review in advance of the second round of State Review Frameworks. EPA 

needs to work with the States to ensure accurate data is entered into AFS so that EPA 

Headquarters and regions can track HPVs and manage CAA stationary source programs. 

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Conclusions 

EPA regions and States need to comply with the HPV policy to ensure HPVs receive a timely 

enforcement response. Regions need to provide oversight to States by taking over the lead of 

HPV cases that have gone on for an excessive period of time and by ensuring that accurate data 

is entered into AFS. As a result of the behaviors pointed out above, the system for addressing 

HPVs is not functioning as intended. EPA’s priorities may have changed since the HPV policy 

was issued, and it has no assurance that the HPV policy and its associated timeframes are valid. 

EPA lacks the information necessary to effectively monitor HPVs, assess results, and make 

informed changes to the policy and its application. 

Recommendations 

We recommend that the Assistant Administrator for Enforcement and Compliance Assurance: 

1.	 Direct EPA regions to comply with the HPV policy, and monitor and report on 

regions’ compliance. 

2.	 Revise the HPV policy to: 

•	 Require specific oversight steps and remedies for HPVs that are unaddressed 

after 270 days, including taking over selected State HPV cases that have not 

been addressed in a timely manner, especially cases in States that have no 

administrative process. 

•	 Include a section detailing the roles and responsibilities of EPA Headquarters 

and regions, the States, and local agencies. 

3.	 Implement proper management controls over HPVs by: 

•	 Following the Watch List standard operating procedures, including generating 

trend reports and conducting national annual reviews. 

•	 Ensuring that AFS data is accurate by documenting data inaccuracies and their 

disposition in regular meeting notes. 

Agency Comments and OIG Evaluation 

EPA concurred with Recommendations 1 and 3, and indicated how it plans to address some of 

our concerns. However, EPA did not provide sufficient detail for us to agree with its proposed 

corrective actions. The Agency did not concur with Recommendation 2, indicating it needed to 

revise HPV policy because it intends to conduct a review of the policy before committing to 

revising the policy. For reasons detailed in the report, we believe the recommendation is valid. 

For resolution purposes, all recommendations are considered “undecided.” 

EPA’s complete comments and OIG’s detailed evaluation of the comments are in Appendices D 

and E, respectively. The OIG has incorporated technical corrections and clarifications from the 

Agency’s comments into the final report as appropriate. 

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Status of Recommendations and 

Potential Monetary Benefits 

POTENTIAL MONETARY 

RECOMMENDATIONS BENEFITS (in $000s) 

Rec. 

No. 

Page 

No. Subject Status1 Action Official 

Planned 

Completion 

Date 

Claimed 

Amount 

Agreed To 

Amount 

1 7 Direct EPA regions to comply with the HPV policy, 

and monitor and report on regions’ compliance. 

U Assistant Administrator for 

Enforcement and 

Compliance Assurance 

2 

3 

7 

7 

Revise the HPV policy to: 

• Require specific oversight steps and 

remedies for HPVs that are unaddressed 

after 270 days, including taking over selected 

State HPV cases that have not been 

addressed in a timely manner, especially 

cases in States that have no administrative 

process. 

• Include a section detailing the roles and 

responsibilities of EPA Headquarters and 

regions, the States, and local agencies. 

Implement proper management controls over HPVs 

by: 

• Following the Watch List standard operating 

procedures, including generating trend 

reports and conducting national annual 

reviews. 

• Ensuring that AFS data is accurate by 

documenting data inaccuracies and their 

disposition in regular meeting notes. 

U 

U 

Assistant Administrator for 

Enforcement and 

Compliance Assurance 

Assistant Administrator for 

Enforcement and 

Compliance Assurance 

 O = recommendation is open with agreed-to corrective actions pending 

C = recommendation is closed with all agreed-to actions completed 

U = recommendation is undecided with resolution efforts in progress 

8
 

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Appendix A 

Examples of HPV Identification Criteria 

The following criteria trigger HPV status. The determination of what is substantive/substantial 

shall be part of a case-by-case analysis/discussion by EPA and the delegated agency. 

(1) Failure to obtain a Prevention of Significant Deterioration or a New Source Review 

permit, and/or a permit for a major modification of either. 

(2) Violation of an air toxics requirement that results in excess emissions or violates 

operating parameter restrictions. 

(3) Violation by a synthetic minor of an emission limit or permit condition that affects the 

source’s Prevention of Significant Deterioration, New Source Review, or Title V status. 

(4) Violation of any substantive term of any local, State, or federal order, consent decree or 

administrative order. 

(5) Substantial violation of the source’s Title V certification obligations. 

(6) Substantial violation of the source’s obligation to submit a Title V permit application. 

(7) Violations that involve testing, monitoring, record keeping, or reporting that 

substantially interfere with enforcement or determining the source’s compliance with 

applicable emission limits. 

(8) A violation of an allowable emission limit detected during a reference method stack 

test. 

(9) CAA violations by chronic or recalcitrant violators. 

(10) A substantial violation of CAA Section 112(r) requirements. 

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Appendix B 

CAA Stationary Source Enforcement Programs 

Enforcement of HPVs falls under five separate CAA programs, as follows: 

New Source Review 

The CAA requires all areas of the country to meet or strive to comply with the National Ambient 

Air Quality Standards. One of the key programs designed to achieve compliance with the 

National Ambient Air Quality Standards is the New Source Review program, a preconstruction 

review process for new and modified stationary sources. The New Source Review program has 

two components. The Prevention of Significant Deterioration program for attainment or "clean" 

areas typically requires new or modified sources to install state-of-the-art pollution controls to 

ensure that the ambient air quality will not degrade. The non-attainment area New Source 

Review program is designed to ensure that any new industrial growth in a non-attainment area 

will comply with stringent emission limitations (by requiring the most protective pollution 

controls and emission offsets), with the goal of improving air quality overall to meet the National 

Ambient Air Quality Standards. The New Source Review program requires companies to obtain 

a permit for new construction or major modifications that substantially increase a facility's 

emissions of the National Ambient Air Quality Standards. 

National Emission Standards for Hazardous Pollutants 

National Emission Standards for Hazardous Air Pollutants are stationary source standards for 

hazardous air pollutants. Hazardous air pollutants are those pollutants that are known or 

suspected to cause cancer or other serious health effects, such as reproductive effects or birth 

defects, or adverse environmental effects. National Emission Standards for Hazardous Air 

Pollutants are found in 40 Code of Federal Regulations Parts 61 and 63. Part 61 regulates only 

seven hazardous air pollutants: asbestos, beryllium, mercury, vinyl chloride, benzene, arsenic, 

and radon/radionuclides. The 1990 CAA amendments significantly expanded EPA’s authority to 

regulate hazardous air pollutants. Section 112 of the CAA lists 188 hazardous air pollutants to 

be regulated by source category. The National Emission Standards for Hazardous Air Pollutants 

promulgated after the 1990 CAA amendments are found in 40 Code of Federal Regulations 

Part 63. These standards require application of technology-based emissions standards referred to 

as Maximum Achievable Control Technology standards. The National Emission Standards for 

Hazardous Air Pollutants are delegated to the States, but both EPA and the States implement and 

enforce these standards. 

State Implementation Plans 

State Implementation Plans are the regulations and other materials for meeting clean air 

standards and associated CAA requirements. State Implementation Plans include State 

regulations that EPA has approved and State-issued, EPA-approved orders requiring pollution 

control at individual companies. In rare cases, the plans include federally promulgated 

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regulations. The plan may also include planning documents, such as area-specific compilations 

of emissions estimates and computer simulations (modeling analyses), that demonstrate that the 

regulatory limits assure that the air will meet air quality standards. 

Title V 

Under the CAA amendments of 1990, States were required to establish programs to issue, 

review, and renew permits to operate for their most important or "major" sources of air pollution. 

These permits would encompass all CAA requirements that apply to a source but impose no new 

requirements. The primary purpose of these permits is to encourage sources to self examine for 

compliance. States are in the process of finalizing the issuance of Title V permits and many 

sources have completed annual certification processes inherent in the program. 

New Source Performance Standards 

The CAA required EPA to create a list of the important categories of stationary sources of air 

pollution and establish federal standards of performance for new sources within these categories. 

These standards are known as New Source Performance Standards and apply to newly 

constructed sources or those that undergo major upgrades or modifications. The standards 

include equipment specifications as well as operation and measurement requirements. EPA and 

the State or local air quality agencies are responsible for ensuring that new stationary sources 

will meet the New Source Performance Standards and that existing sources subject to these 

standards continue to comply with them. 

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Appendix C 

Prior Reports 

EPA OIG Report 

Title Report No. Date 

Consolidated Report on OECA’s 

Oversight of Regional and State 

Air Enforcement Programs 

E1GAE7-03-0045-8100244 September 25, 1998 

Government Accountability Office Reports 

Title Report No. Date 

Environmental Protection: EPA-State 

Enforcement Partnership Has Improved, 

but EPA's Oversight Needs Further 

Enhancement 

GAO-07-883 July 31, 2007 

Environmental Compliance and 

Enforcement: EPA's Efforts to Improve 

and Make More Consistent Its 

Compliance and Enforcement Activities 

GAO-06-840T June 28, 2006 

Environmental Protection: More 

Consistency Needed Among EPA 

Regions in Approach to Enforcement 

RCED-00-108 June 2, 2000 

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Appendix D 

Agency Comments 

MEMORANDUM 

SUBJECT: Response to the Office of the Inspector General Draft Evaluation Report, 

“EPA Oversight and Policy for High Priority Violations of Clean Air Act Need 

Improvement,” Project Number 2008-0026, dated August 14, 2009 

FROM: Cynthia Giles /s/ 

 Assistant Administrator 

TO: Dan Engelberg 

 Director for Program Evaluation 

 Water and Enforcement Issues 

Office of the Inspector General 

Thank you for the opportunity to review and comment on the draft evaluation report, 

entitled, “EPA Oversight and Policy for High Priority Violations of Clean Air Act Need 

Improvement,” (Report) Project Number 2008-0026. This Report focuses on improving 

compliance with the “Policy on Timely and Appropriate Enforcement Response to High Priority 

Violations” (HPV policy) and EPA’s oversight of the policy’s implementation. 

OECA agrees that oversight of the HPV policy can be enhanced, both by OECA and by 

the regional offices, which oversee state enforcement agencies. In fact, OECA has taken or plans 

to take additional steps to improve oversight of the HPV policy that were not included as 

recommendations in the OIG report Recently, OECA publicly released its State Review 

Framework (SRF) reports, which outline in detail the performance issues associated with 

implementation of the HPV policy. OECA also plans to issue a separate memorandum to the 

regions and states that outline the thresholds for federally-reportable violations. This will help 

ensure that violations (HPV and non-HPV) are reported and made available to the public. OECA 

will also improve transparency regarding HPV identification and enforcement response by 

releasing an enhanced version of the Enforcement and Compliance History Online website – 

allowing the public to compare states, and allowing state trends to be graphed using the same 

data EPA uses pursuant to the state review framework. 

Additionally, OECA believes that this is an appropriate time to review the current HPV 

policy. OECA will work with the Regions to review the policy to determine what revisions 

might be necessary to ensure the most effective implementation of an HPV policy. OECA plans 

to issue a memorandum reminding the Regions of the current HPV policy. As specified in the 

Watch List standard operating procedures, OECA will also commence regular calls with the EPA 

Regions to enhance oversight of the HPV policy. OECA also agrees that the regions should 

follow the Watch List standard operating procedures and continue their quarterly calls with the 

states to discuss HPVs on the Watch List. 

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These steps will provide OECA critical information necessary to determine what 

revisions to the HPV policy might be needed. OECA believes that this evaluation should be 

conducted prior to deciding how the HPV policy should be revised. The evaluation will allow 

OECA, working with regions and states, to determine whether the HPV policy is still a suitable 

and effective oversight tool and whether any adjustments to the HPV policy and approach are 

warranted. Consistent with our view that an evaluation should be undertaken prior to any 

revisions of the current policy, we do not agree with several of the specific recommendations 

contained in the draft report. Please see our attached detailed comments to each of the issues and 

recommendations. 

We appreciate the opportunity to review and comment on this draft report. Should you 

have any questions or concerns regarding this response, please contact OECA’s Audit Liaison, 

Gwendolyn Spriggs, at 202-564-2439. 

Attachment 

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OECA Response to OIG Draft Report 

EPA Oversight and Policy for High Priority Violations of Clean Air Act Need Improvement 

(Project No. 2008-0026) 

OECA agrees that EPA Headquarters’ oversight of the EPA regions and the EPA regions’ 

oversight of the state enforcement agencies’ implementation of the policy can be improved. 

OECA’s response to the recommendations and specific comments and technical corrections on 

the text of the draft Report are provided below: 

I. OECA’s Response to Report Recommendations 

Report Recommendation 1: 

Direct EPA Regions to comply with HPV Policy, and monitor and report on Region’s 

compliance. 

OECA Response: 

OECA agrees that the Regions are not fully complying with the HPV policy and would like to 

discuss this with the regional offices. OECA plans to issue a memorandum to the Regions 

reminding them of the HPV policy and to have discussions with the regions to more fully 

understand the challenges they face in complying with this policy and what revisions to the 

policy might address concerns and strengthen compliance by HPVs. OECA will commence 

regular calls with each of the EPA regions for the specific purpose of increasing its oversight and 

monitoring of both the Regions’ implementation of the HPV policy and their oversight of states’ 

actions to address HPVs in a timely manner consistent with the current HPV policy. OECA will 

use the Watch List as one tool to identify issues to discuss with the Regions to include 

distributing a quarterly region-specific Watch List report to each of the Regions which will 

identify specific HPV cases that require dialogue with OECA. 

Report Recommendation 2: 

Revise the HPV Policy to: 

• Require specific oversight steps and remedies for HPVs that are unaddressed after 

270 days, including taking over selected State HPV cases that have not been 

addressed in a timely manner, especially cases in States that have no administrative 

process. 

OECA Response: 

OECA thinks it is premature to decide what revisions should be made to the policy or that 

revisions to the policy are the best way to address the oversight problems identified in the report. 

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Instead, OECA proposes to evaluate the regional challenges in complying with this policy and 

determine, after that evaluation, whether the HPV policy should be revised. This will allow 

OECA to determine whether the policy needs to be modified and if so, to more effectively 

identify what, if any, revisions should be made. 

It is important to note that the HPV policy by its terms provides flexibility to account for 

extenuating circumstances in enforcement actions, recognizing that some cases will not be 

resolved or addressed in accordance with the general timeframes of the policy. Specifically, in 

Section IV. E., “Day 270 (no lead change) or Day 300 (lead change),” the policy states: 

“By Day 270 (or 300 with lead change), the source shall either be RESOLVED or 

ADDRESSED i.e., on a legally-enforceable and expeditious administrative or judicial 

order, or be subject to a referral to the (State) attorney general or (Federal) Department 

of Justice for an adjudicatory enforcement hearing or judicial action. In some complex 

cases, more time may be required. The State should discuss with the Region that a case’s 

complexity will require additional time as soon as those factors are determined” 

(underline added). 

Thus, the issue is not, as characterized in the Report, whether HPVs have not been addressed by 

Day 270, but rather whether there is a reason why a Region or state needs additional time to take 

an addressing action. The regular communication on the status of HPVs should provide a 

sufficient framework to discuss and account for such cases. 

Additionally, it is important to note that the OIG appears to have relied on AFS data 

alone to determine whether the timeliness standards in the HPV policy were followed. However, 

the AFS data system can not fully reflect the flexibility provided for by the policy since there is 

no place in AFS to indicate that a state needs additional time to take an addressing action. 

Because such information is critical in determining whether the HPV policy is being followed, 

during the HPV policy evaluation period, OECA will discuss this issue internally to determine 

the best mechanism for tracking this information. 

• Include a section detailing the roles and responsibilities of EPA Headquarters and 

Regions, the States, and Local agencies. 

OECA Response: 

The HPV policy adequately addresses the roles of EPA and states. For example, Section 

III, “Processing of High Priority Violators,” specifically lays out the expectations for state and 

regional actions while accounting for needed flexibility (e.g., noting that “the State agency and 

EPA Regional Office shall jointly decide which agency has the necessary resources and will take 

the lead in resolving the HPV”). 

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Report Recommendation 3: 

Implement proper management controls over HPVs by: 

• Following the Watch List standard operating procedures, including generating reports 

and conducting national annual reviews. 

OECA Response: 

OECA agrees that this is an important step in improving implementation of the HPV 

policy and will use the Watch List standard operating procedure to ensure that regular conference 

calls to discuss the Watch List occur between Headquarters and the Regions. In regard to 

generating reports, OECA will standardize a regular report. 

• Ensuring that AFS data is accurate by documenting data inaccuracies and their 

disposition in regular meeting notes. 

OECA Response: 

OECA agrees that increased attention to AFS data accuracy is critical. OECA commits 

to increasing its ongoing efforts in overseeing AFS data accuracy and as part of the overall 

evaluation of the policy, will determine if additional steps can be taken to ensure accuracy. 

II. OECA’s Specific Comments and Corrections on Text of the Report 

At a Glance 

Revise the “At a Glance” page to reflect that the improvements suggested do not apply to 

all HPVs, but rather a subset of the HPV universe. Some HPVs are being adequately addressed 

and some are not. The first paragraph would be revised as follows: 

Some HPVs were not being addressed timely because some regions and States did not 

consistently follow the HPV policy, EPA Headquarters did not consistently oversee 

regional and State HPV performance, and some regions did not consistently oversee 

state HPV performance. 

Table of Contents 

Revise draft Report at Appendices as follows: Change Appendix A to say, “Examples of 

HPVs Criteria” 

Purpose 

Revise draft Report at page 1, footnote 1, as follows: 

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“According to EPA, a synthetic minor is a source that avoids permitting under Title V, or 

New Source Review or the requirements of the Maximum Achievable Control 

Technology (MACT) rules by taking restrictions in a federally-enforceable minor 

source permit that limits the annual emissions of any Title V, NSR or MACTregulated pollutant to below major source thresholds for those pollutants.” 

Background 

Revise draft Report at page 1, middle of second paragraph, as follows: “See Appendix A 

for examples of HPVs criteria.” 

Results of Review 

OECA Comment: We do not dispute that the OIG found deficiencies with some of the regions 

and states interviewed, however, this discussion is overly broad in implying that this is a problem 

with all regions and states (see specific edits below addressing this concern). 

EPA Regions and States Not Complying with HPV Policy 

Revise draft Report at page 3, as follows: “Some EPA regions and states ...” 

Revise draft Report at page 3, subtitle, first paragraph, first sentence, as follows: “Some 

regions and states did not comply ...” 

OECA Comment: The Report states at page 3 that, “. . . the HPV policy is missing key elements. 

The HPV policy does not describe the oversight steps that need to be taken once an HPV has not 

been addressed for over 270 days.” OECA does not agree that the HPV policy is missing key 

elements as stated in the draft report with regard to oversight for HPVs not addressed by Day 

270. Section IV, “T&A Timelines for Enforcement Action,” subsection C., “Day 150 Case 

Progress Evaluation,” subsection D., “EPA Responsibility After It Assumes the Lead,” and 

subsection E., “Day 270 (no lead change) or Day 300 (lead change),” provide guidance regarding 

continued tracking of unaddressed HPVs, including issuance of 113 orders and civil judicial 

enforcement. In addition, the Watch List standard operating procedures provide further direction 

regarding oversight of HPVs not addressed by day 270. 

Revise draft Report at page 4, top of page, by deleting “EPA should revise its HPV policy 

to include these elements.” and replacing with new text, as follows: “EPA should evaluate 

whether it should revise its HPV policy and determine whether some or all of the suggested 

elements would improve compliance. to include address all or some of these elements.” 

NOVs Not Issued in 60 Days 

OECA Comment: We agree that there are situations where a source is not notified of a violation 

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by Day 60. However, often some form of notification of a violation or alleged violation has been 

given, but it was not labeled as an “NOV” but rather by some other term used by a state. To 

clarify, the CAA states at Section 113 (a)(1): 

“Whenever, on the basis of any information available to the Administrator, the 

Administrator finds that any person has violated or is in violation of any requirement or 

prohibition of an applicable implementation plan or permit, the Administrator shall 

notify the person and the State in which the plan applies of such finding.” (underline 

added). 

Thus, it is only a requirement that the SIP-violating facility and the state in which the 

violations occurred be informed, i.e., notified, of such finding. It is not a requirement that this 

notification be in writing, although we agree this is generally a best practice. Therefore, in 

evaluating this timeliness requirement of the HPV policy, OECA looks to a state or local 

agency’s action to determine whether it provides that notice, regardless of what the state or local 

agency labels that action, e.g., notice of violation, finding of violation, compliance advisory, and 

others. Nonetheless, we agree, as part of our broader evaluation of the HPV policy discussed 

above to assess whether it is possible to issue an NOV by Day 60 and if not whether a different 

time frame is needed, or whether there are alternative enforcement vehicles appropriate to 

address HPVs. 

Finally, the requirement to notify the violator and state of a violation 30 days before a 

formal action can be taken does not apply to non-SIP violations, e.g. NSPS, NESHAP/MACT, or 

NSR (unless incorporated as a SIP requirement). 

150 Day Case Strategy Meeting Not Held 

OECA Comment: The OIG interprets the HPV policy as requiring case-specific consultations 

between EPA and the state enforcement agency regarding case progress by Day 150. Our 

interpretation of the HPV policy is that such consultation should occur after Day 150 and that, in 

the interest of efficiency, can be consolidated into routinely scheduled meetings between the 

regions and the States. This more flexible interpretation recognized that multiple meetings may 

not be the most efficient way to meet with regions that have a significant number of HPVs. For 

example, a state with several dozen HPVs, may have dozens of different Day 150 dates, which 

would require a regional and state meeting on an almost daily basis. 

States Address HPVs with Informal Enforcement Actions 

OECA Comment: There are instances where states have addressed HPVs with informal 

enforcement actions. However, it is important to note that an informal action may be the states’ 

only viable option (i.e., some states do not have administrative vehicles and, therefore, the only 

option is an informal action or a judicial action), or, as is the case in many states, what is labeled 

an “NOV” may in fact be an administrative order or referral (i.e., effectively a formal action) to 

the state Attorney General according to state law. OECA focuses on the legal effect of the 

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document, not its label. Notwithstanding these limitations on state action, some states 

inappropriately address HPVs with informal enforcement actions. Where this is an issue it has 

been the topic of several annual national AFS Managers’ meetings in which it has been stressed 

by OECA that all addressing actions must be closely evaluated to ensure their adequacy given all 

extenuating circumstances. OECA has been diligent in stressing to regional and state/local AFS 

managers as well as enforcement mangers and staff that, in most cases, informal actions are not 

adequate or appropriate addressing actions for HPVs. OECA has raised, and continues to raise 

this issue in numerous national calls and meetings with Regional, state and local AFS and 

enforcement staff and managers. 

EPA Headquarters Not Using Key Management Controls and Overseeing Regions and 

States 

OECA Comment: OECA will improve its oversight and monitoring of the regions 

implementation of the HPV policy and the regions’ oversight of state actions to address HPVs in 

a timely manner according to the HPV policy with regularly scheduled calls between 

Headquarters and the regions (see response to recommendation 1 above). 

OECA recognizes that increased oversight is one of several improvements needed to enhance 

implementation of the HPV Policy. OECA will discuss potential modifications to the 2005 

Watch List HQ SOP regarding the “core” review and format for the OECA conference calls with 

the Regions to include processes which will enhance Headquarters and Regional oversight 

performance. 

Revise draft Report at page 5, third paragraph, last sentence, by deleting: “These steps are 

not being completed.” and replacing with new text, as follows: “These steps have been 

implemented at the staff level including some coordination and dialogue with Regional data 

managers.” 

OECA Comment: Additional facts regarding OECA’s implementation of the Watch List 

“Administrative Review” portion may not have been fully covered by OIG interviews. OECA 

staff continued implementation of most of the administrative review portion of the Watch List 

SOP (see page 3 of 2005 SOP). Details can be provided to the OIG investigators upon request. 

Specifically, the first two bullets of the “Administrative Review – Overview” section on page 3 

of the Watch List SOP were implemented by OECA staff, as follows: 

•	 A quarterly scan of explanations/status codes has regularly been conducted by OECA 

staff since the beginning of the Watch List in January of 2004 to include an occasional 

call or email dialogue with the region; 

•	 A semi-annual facility-level data quality review by OECA staff occurred in FY06/07. 

Such review increased in detail in the third quarter of FY07 and was transformed into a 

full AFS minimum data requirement (MDR) data quality review of all HPV cases vs. 

accuracy in AFS national database (e.g., addressing action linkage, Discovery 

Dates/types, Violating Pollutants, Violating Type Codes, compliance status, etc.). 

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o	 Quarterly analytical reports have been sent to regional AFS data managers and the 

AEMs. 

o	 AFS was enhanced to include a more capable fixed format report for the 

expressed purpose of data quality review of complete reporting of MDRs. 

Revise draft report at page 5, last paragraph. Delete last sentence: “Other than making 

recommendations to States, EPA has not taken action to solve this problem [untimely 

enforcement for SNC/HPVs]. Replace with: “Pursuant to the state review framework evaluation 

of round one reports, EPA has identified this issue as one of four high priority national issues 

which must be addressed by EPA and the states.” 

OECA Comments: During the review of the Round 1 state review framework reports OECA 

developed “white papers” for four national issues that were of the highest priority to be evaluated 

by EPA and the states. One of these white papers evaluates the untimely enforcement at 

SNC/HPV cases by states and EPA. One of the most prevalent causes of program deficiencies 

was the states’ claim that there is a lack of clear guidance from EPA and differing interpretations 

of EPA guidance by the states. In the issue papers, EPA agrees to provide clarification of the 

expectations of state performance under EPA guidance. 

Regions Not Providing Effective Oversight of State Programs 

OECA Comment: The Report states that, “EPA regions did not assume the lead for any 

unaddressed State-led HPVs due to timeliness concerns.” It is important to note that the HPV 

policy does not require a lead change where the state is able and willing to act to resolve a 

violation in a timely and appropriate manner. This determination is made on a case-by-case 

basis and considers numerous factors such as: the strength of the evidence, any litigation risk, 

schedules of state administrative hearing officers or administrative law judges, the litigation 

process for referred cases (filing, discovery, trial dates, etc.) that can significantly delay 

enforcement actions and are beyond the control of the state. In these cases, a lead change may 

not be the solution since EPA may face the same obstacles. 

Conclusions 

OECA Comment: OECA agrees that the system for addressing HPVs is not functioning as well 

as it was intended. We also agree that for some situations where it is clear that the state or local 

agency cannot or will not address an HPV timely and appropriately, overfiling of an enforcement 

action by EPA is warranted. However, we do not agree with the Report that, “EPA lacks the 

information necessary to effectively monitor the CAA stationary source program, assess results, 

and make informed changes to the policy and its application.” This finding is overly broad given 

the limited scope of this Report. The Report specifically states, “We limited the scope of our 

review to the timeliness of addressing HPVs. We did not review whether states were identifying 

or resolving HPVs in a timely manner.” Given the narrow scope and by implication a very 

limited evaluation of the AFS data (i.e., there is not discussion regarding an evaluation of AFS 

data to determine identification or resolution of HPVs), we respectfully request that language 

stating that EPA doesn’t have the information to monitor the CAA stationary source program, 

assess results, and make informed changes to the policy be removed. 

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Appendix A

 Revise draft Report at page 9, as follows: “Examples of HPVs Identification Criteria” 

Appendix B

 Revise draft Report at page 10, as follows: “New Source Review Prevention of 

Significant Deterioration”. 

Revise draft Report at page 10, as follows: “National Emission Standards for Hazardous 

Pollutants Maximum Achievable Technology Air Toxics”. 

OECA Comment: This program description needs to be revised to include a brief discussion of 

NESHAP Part 61 and Part 63. As currently written it discusses only the Part 63 Maximum 

Achievable Control Technology (MACT) program. Also, it is incorrect to say that the 

NESHAPs are new rules created by the CAA 1990 amendments. Only the MACT rules were 

added at the time. 

OECA Comment: Delete the description of the Ozone Protection program in the draft Report at 

page 11. Sources subject to Title VI are not covered by the HPV policy in part because 

stationary sources are not classified as major or synthetic minor on the basis of ozone depleting 

substances emissions. 

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Appendix E 

OIG’s Evaluation of Agency Comments 

Regarding Recommendation 1, OECA’s proposed activities to monitor regions’ compliance with 

the HPV policy meet the intent of the recommendation. However, the memorandum should be 

more than a reminder to the regions that the HPV policy exists – the memorandum should direct 

the regions to comply with the policy. OECA’s response also does not address how it will report 

on the regions’ compliance with the HPV policy. This report will allow OECA to “assess the 

results and make informed changes to the policy and its application” as stated in our conclusions. 

We expect OECA to address this issue in the final report response. 

Regarding Recommendation 2, we disagree with OECA’s response. The HPV policy does not 

provide any oversight steps to ensure continued progress on State-led cases after Day 270. 

Also, the policy does not provide any oversight steps to ensure timely enforcement actions on 

EPA-led cases after Day 270. We did not rely only on AFS data, as stated in OECA’s response. 

We reviewed the meeting notes between the 5 regions we reviewed and 25 of the States that they 

oversee. We found no evidence that the States and regions discussed the need for additional time 

for HPV cases that went beyond Day 270. 

We agree that the current policy allows for flexibility. Because the policy allows flexibility in 

some cases, the policy should have steps for dealing with those cases. However, although the 

policy allows for flexibility, the issue, as we view it, is whether OECA maintains management 

control. OECA needs to demonstrate that it has adequate management controls in place to 

ensure that HPVs unaddressed after 270 days truly require additional time, and that these HPVs 

receive new milestone goals as well as proper attention from States and regular oversight by 

EPA. We understand that OECA wants to discuss this issue with the regions and conduct a brief 

review of its policy. However, after that review is completed, OECA needs to revise the HPV 

policy to address the deficiencies we identified. 

For the need to include a section in the policy detailing roles and responsibilities, as stated in 

Recommendation 2, we disagree with OECA’s position and maintain such a section is needed. 

The roles and responsibilities are scattered throughout the policy and, as a result, are unclear. To 

ensure accountability, the revised HPV policy needs to include a section that clearly lays out the 

roles and responsibilities of EPA Headquarters and regions, States, and local agencies. 

Regarding Recommendation 3, we agree with OECA that implementing the Watch List standard 

operating procedures is important to improving HPV implementation. We also agree regular 

conference calls are needed between EPA Headquarters and regions to discuss the Watch List. 

However, the response does not address whether OECA will conduct annual national HPV 

reviews called for in the Watch List Standard Operating procedures. OECA will need to address 

this issue in its response to the final report. We also ask that OECA be specific as to how it will 

increase ongoing efforts to oversee AFS data accuracy in the final report response. 

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We decided not to revise the report’s At a Glance as suggested by OECA regarding 

improvements not being needed for all HPVs but rather a subset. OECA noted in its response 

that regions are not fully complying with the HPV policy and oversight can be enhanced by 

Headquarters and regions. We visited almost half of the regions to develop our findings and 

clearly state the work we did in our scope and methodology. We do not believe OECA’s 

changes are warranted. 

OECA had a concern on page 3 of our report regarding whether the HPV policy “is missing key 

elements.” We maintain our position. Our review found that the HPV policy does not address 

oversight steps that need to be taken after 270 days. Section IV of the HPV policy provides 

some guidance to regions in the event of a lead change and allows extending timeframes for 

more complex cases. However, the policy does not provide any oversight steps to ensure 

continued progress on State-led cases after Day 270. Also, the policy does not provide any 

oversight steps to ensure timely enforcement actions on EPA-led cases after Day 270. 

OECA took issue with our statement regarding NOVs not being issued in 60 days. It is 

important that an NOV (or finding of violation) be issued because the CAA Section 113 (e) 

stipulates that issuing them shifts the burden of proof of continuous compliance to the source and 

“starts the penalty clock.” OECA did not comment on the importance of issuing an NOV or a 

finding of violation. OECA should gather information from the regions about the issuance of 

NOVs and whether the timeframe in a revised policy should be changed from 60 days. We also 

believe that OECA and the regions should discuss whether alternative enforcement vehicles 

should be used and included in a revised HPV policy. At present, this key element of the HPV 

policy is not being followed. 

Regarding the 150-day case strategy meetings not being held, EPA regions did not comply with a 

key provision of the HPV policy by not having 150 day meetings. Regions did conduct regular 

meetings with States; air enforcement staff from three of the five EPA regions reviewed said 

their regular status meetings substituted for the 150-day meetings. However, from our review of 

meeting notes between the 5 Regions and 25 of the States they are responsible for, we found no 

evidence that case-specific consultations concerning overall case strategy were held during any 

of the monthly meetings we reviewed. 

Although OECA indicated there are instances where States have addressed HPVs with informal 

enforcement actions, informal actions may be the only viable option for some States. However, 

we would expect that EPA regions would take over HPV cases from States with limited 

administrative authorities to ensure that high priority violators would receive appropriate formal 

enforcement actions and penalties consistent with violators across the country. The data we 

reviewed and presented in the report show that this is not occurring. We also note for the record 

that, according to the HPV policy, informal actions are never adequate addressing actions for 

HPVs. The policy states that HPVs are to be addressed by a legally enforceable and expeditious 

administrative or judicial order, or by being referred to the (State) attorney general or (Federal) 

Department of Justice for an adjudicatory enforcement hearing or judicial action. 

OECA said it will improve its oversight and monitoring of the regions’ implementation of the 

HPV policy and the regions’ oversight of States with regularly scheduled calls between 

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Headquarters and the regions. Regularly scheduled and executed calls between Headquarters 

and the regions would indeed be beneficial. However, OECA has not demonstrated that its 

revisions to the 2005 Watch List Headquarters standard operating procedures will enhance 

Headquarters and regional oversight performance. We require more specific detail in the final 

report response. 

OECA questioned some of our statements on page 5 regarding an EPA white paper summarizing 

the State problems. The white paper provided to us by OECA on timely and appropriate 

enforcement did not identify “a lack of clear EPA guidance” as a prevalent cause of untimely 

enforcement. It did find that disagreement with or having different procedures than EPA was a 

prevalent cause. The white paper also did not identify any planned EPA activities for addressing 

the causes of untimely enforcement. 

OECA noted that the report states that, “EPA regions did not assume the lead for any 

unaddressed State-led HPVs due to timeliness concerns,” and said it is important to note that the 

HPV policy does not require a lead change where the State is able and willing to act to resolve a 

violation in a timely and appropriate manner. Our sample had 295 HPV State-led cases that 

remained unaddressed for over 540 days (9 percent), including 98 HPVs unaddressed for over 

750 days. We found no instances where EPA assumed the lead for an HPV due to timeliness 

concerns. Although the policy may not require a lead change, it does not prohibit one either. 

Given the lack of oversight, it is unlikely that none of these cases would have benefited from a 

lead change. While EPA may face the same obstacles in addressing HPVs that the States do, 

taking over a case is a signal to States, violating facilities, and the public that EPA is serious 

about addressing violations in a timely manner. That EPA may face similar obstacles is not a 

reason for inaction. 

OECA did not agree with the statement in the “Conclusion” section of our report, “EPA lacks the 

information necessary to effectively monitor the CAA stationary source program, assess results, 

and make informed changes to the policy and its application,” indicating the statement was 

overly broad given the limited scope of our review. We concluded that OECA does not have the 

information to evaluate regional challenges and determine whether the HPV policy needs to be 

revised at this time. However, we accept OECA’s suggestion to restrict the scope of the 

statement to HPVs, and made revisions. We did not rely only on evaluation of AFS data as 

stated in OECA’s response. We also interviewed regional and State staff and reviewed the 

meeting notes between the 5 regions we reviewed and 25 of the States that they oversee. 

Further, we conducted other work as stated in the “Scope and Methodology” section of the 

report. 

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Appendix F 

Distribution 

Office of the Administrator 

Assistant Administrator, Office of Enforcement and Compliance Assurance 

Principal Deputy Assistant Administrator, Office of Enforcement and Compliance Assurance 

Director, Office of Compliance, Office of Enforcement and Compliance Assurance 

Director, Office of Civil Enforcement, Office of Enforcement and Compliance Assurance 

Director, Office of Regional Operations 

Agency Follow-up Official (the CFO) 

Agency Follow-up Coordinator 

General Counsel 

Associate Administrator for Congressional and Intergovernmental Relations 

Associate Administrator for Public Affairs 

Audit Follow-up Coordinator, Office of Enforcement and Compliance Assurance 

Acting Inspector General 

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