In September 2014, the USEPA issued a revision of its Clean Air Act policy on “Timely and Appropriate Enforcement Response to High Priority Violations.” Last issued in 1998, the new enforcement policy applies primarily to major and synthetic minor stationary sources of air pollutants with aggressive actions on accelerated timetables.

The new policy makes two major changes from the 1998 policy. First, the new policy replaces the matrix used to identify high priority violations (HPV) with the following six categories of violations that will receive high priority enforcement response:

1. Failure to obtain a New Source Review (NSR) permit and/or install Best Available Control Technology (BACT) (attainment areas) or Lowest Achievable Emissions Reductions (LAER) (non-attainment areas).

2. A violation of any federally-enforceable emission limit, standard, or required operating parameter issued under Prevention of Significant Deterioration (PSD) or nonattainment area provisions, where such violation occurs continuously, regularly, or intermittently for at least 7 days (Seven Day Violation).

3. A Seven Day Violation of any emission limit, standard or required operating parameter in an applicable New Source Performance Standard (NSPS).

4. A Seven Day Violation of any emission limit, standard, or required operating parameter of an applicable National Emission Standard for Hazardous Air Pollutants (NESHAP).

5. A violation of any federally-enforceable work practice, testing, monitoring, recordkeeping or reporting requirement that the agency deems to substantially interfere with its ability to enforce or monitor a source’s compliance.

6. Any other violation the enforcement agencies determine is appropriately treated as a high priority violation.
While the first five criteria are very specific, the 6th criteria does add some uncertainty if the agencies rely heavily on it. The new policy became effective on October 1, 2014.

The other major change made under the new policy is flexibility in the treatment of HPV enforcement. Under the former policy, once a violation was determined to be a HPV, it could only be resolved through an enforceable agreement. Under the new policy, a HPV may be removed from HPV enforcement and not require such an agreement if the enforcement agencies conclude the evidence of a HPV is weak or if the HPV does not involve continuing violations or a threat to public health. This change is presumed to be an incentive to a violating facility to quickly return back to compliance. The USEPA is giving itself broad discretion to remove a violation from HPV enforcement.

CCES has the technical experts to help your facility prepare the appropriate permit applications and the technical expertise to meet Clean Air Act PSD, NSR, NSPS, and NESHAP program requirements and the technical expertise to resolve any alleged violations. Contact us today at 914-584-6720 or at karell@CCESworld.com.