DEPARTMENT OF ENVIRONMENTAL PROTECTION Air Quality

DOCUMENT NUMBER:

273-4130-004

TITLE:

Compliance Docket Procedure

AUTHORITY: Act of January 8, 1960, P.L. (1959) 2119, No 787, as amended, known as The Air Pollution Control Act,(35 P.S. sec. 4001 et seq.) POLICY:

Procedures for Field Staff to use in implementing compliance docket requirements of the Air Pollution

Control Act. PURPOSE:

To provide guidance to Field Staff to ensure the uniform implementation of the compliance docket requirements.

APPLICABILITY:

Staff/Regulated Public

DISCLAIMER: The policies and procedures outlined in this guidance document are intended to supplement existing requirements. Nothing in the policies or procedures shall affect different statutory or regulatory requirements. The policies and procedures herein are not an adjudication or a regulation. There is not intent on the part of the Department to give these rules that weight or deference. This document establishes the framework for the exercise of DEP’s administrative discretion in the future. DEP reserves the discretion to deviate from this policy statement if circumstances warrant. PAGE LENGTH:

15 pages

LOCATION:

Vol 02, Tab 30

DEPARTMENT OF ENVIRONMENTAL PROTECTION BUREAU OF AIR QUALITY COMPLIANCE DOCKET PROCEDURE Introduction Section 7.1 of the Air Pollution Control Act ("APCA" or "Act") provides that the Department shall not issue, reissue or modify any plan approval or operating permit if it finds that the applicant or permittee or a general partner, parent or subsidiary corporation of the applicant or permittee ("related parties") is in violation of the Act or the rules and regulations promulgated under the Act or any plan approval, permit or order of the Department "as indicated by the Department's compliance docket" unless the violation is being corrected to the satisfaction of the Department. The Act further provides that a permittee or applicant may appeal any violation arising under the Act which the Department places on the compliance docket. That means that the responsible party must be provided with notice of any violation placed on the compliance docket. The applicant will have thirty (30) days from the receipt of notice to file an appeal to the Environmental Hearing Board. It is important to note that when one responsible party is placed on the docket no permits may be issued to the responsible party or any general partner or any parent or subsidiary corporation of the responsible party. This document describes, in general terms, the procedure to be followed for operation of the mandatory component of the compliance docket established by Section 7.1(a) of the Act. It does not address the discretionary provisions in Section 7.1(b) of the Act. Compliance Docket Procedure The regional air quality program managers are responsible for making the decision to place a person (as defined in the act) on the compliance docket. There are two situations in which a decision will be made to place a person on the docket. First, where the compliance review form identifies documented conduct of the permittee, applicant or related party that involves existing or continuing violations of the act, rules and regulations promulgated under this act, any plan approval permit or Department order, the permittee or applicant shall be placed upon the docket unless the violations are being corrected to the satisfaction of the Department. Second, where the regional office is aware that the 273-4130-004/May 24, 1996/Page 2

applicant, permittee or related party is in violation of the act, the rules and regulations promulgated under the act, any plan approval, permit or order of the Department, and these violations are existing or continuing, the permittee or applicant shall be placed upon the compliance docket unless the violations are being corrected to the satisfaction of the Department. The Department may become aware of violations following the review of the compliance review form and upon review of the deviations identified. The following sections describe, in greater detail, the process for making the decision to place a person on the compliance docket. Plan Approval/Operating Permit Compliance Review The Department's Permit Policy Manual describes the APCA's requirements for the review of plan approval and operating permits. To implement those requirements, the Department requires submission of a compliance review form by the applicant. The applicant will provide two copies of the compliance review form to the Department. One copy will be retained in the regional office and the other copy transmitted to the central office. The compliance review form serves three functions. First, it provides general information about the applicant. Second, it requires the applicant or permittee to identify documented conduct of violations. Third, it requires the applicant to identify deviations from applicable requirements (act, rules or regulations promulgated thereunder, plan approval, permit or Department order) in Pennsylvania. The general information includes a description of the applicant's "family tree" as well as more detailed information about the applicant. The documented conduct section lists activities or conduct identified by the Department or any other authorized regulatory agency in Pennsylvania as a violation of the act, the regulations, a plan approval, permit or Department order. The deviations section identifies all incidents of deviations from applicable air quality requirements by the applicant and "related parties" occurring during the time period of July 9, 1992, to the date the compliance review form is submitted. In conducting a plan approval or operating permit review, the regional office should perform a completeness review, and determine if all the required information has been provided. If the applicant has not filled out each section of the form or the form does not contain the required signature, the form will be returned to the applicant using the Incomplete [Plan Approval or Operating Permit] Application letter attached to this procedure. The regional office will focus its compliance review on the Compliance Background section of the compliance review form that consists of two sections: Documented conduct of violations and incidents of deviations. If the applicant or permittee lists violations of the 273-4130-004/May 24, 1996/Page 3

act, regulations, plan approval, permits or Department Orders in the documented conduct portion of the compliance review form, the regional office will determine if there are existing or continuous violations. Resolution of such existing or continuous violations will be discussed below. If incidents of deviations from the applicable requirements in the act, regulations promulgated thereunder, plan approval, permit or Department Order are identified, the regional office must evaluate whether those deviations are existing or continuous violations. The Department will review and determine whether the listed incidents of deviation constitute violations that are existing or continuous and should be documented by the Department for purposes of compliance review and addressed through the following steps. Section 7.1(a) prohibits issuance of permits to persons "in violation" not those who "were or have been" in violation. Existing or continuous violations should be resolved prior to the issuance of the plan approval or permit. The Permits and Operations sections should work together to develop a strategy for resolving existing or continuous violations prior to permit issuance. In general, an informal approach with the applicant or permittee should be followed to resolve the issue. The regional office should notify the applicant or permittee by using the compliance review notification letter attached to this procedure. This letter provides an informal mechanism for resolving violations during the permit review process without placing the applicant on the compliance docket. Care should be taken to expedite the informal process in order to not unduly delay the permit process. Application review should continue concurrently with the steps to resolve existing or continuous violations. A violation may be resolved in several ways so as to authorize the issuance of a permit or plan approval. First, a violation can be corrected or eliminated. Second, a violation can be in progress to be corrected to the satisfaction of the Department. A compliance schedule in a permit or plan approval or consent order or agreement incorporated into a permit or plan approval is the means to assure progress towards correcting the violation to the satisfaction of the Department. The applicant or permittee may request that the Department place it on the docket in order that the applicant or permittee may pursue a final resolution through the appeal process. The applicant or permittee may make this request after the Department has had a reasonable amount of time to review the application. If the informal process does not resolve the problem, the issue should be elevated through the chain of command to the 273-4130-004/May 24, 1996/Page 4

regional manager for review. At a minimum, the regional manager and the regional litigation attorney should be involved in evaluating the unresolved existing or continuous violation. If the regional manager and the applicant or permittee cannot informally resolve the violation, the regional manager must do one of the following: a.

Determine that the violation is existing or continuous

and, thus, precludes issuance of a plan approval or operating permit. The applicant must be formally notified that the violation is being placed on the compliance docket. A compliance docket notification letter is attached to this procedure for that purpose. A violation placed on the compliance docket is appealable within thirty (30) days to the Environmental Hearing Board. b. Determine that the violation is not existing or continuous or is being corrected satisfactorily and, thus, does not preclude the issuance of a plan approval or operating permit. In that event, there is no compliance review basis to withhold issuance of the plan approval or operating permit. Section 7.2 (Permit Compliance Schedules) of the Air Pollution Control Act should be used to resolve violations that are placed on the docket. It authorizes the Department to issue permits containing compliance schedules including interim milestone dates, stipulated penalties and payment of an "upfront" or on-going civil penalty to existing sources that are not in compliance. It also authorizes the incorporation of the terms of a consent order and agreement into the permit. If the violations placed on the docket cannot be addressed in a permit, then a consent order and agreement may be negotiated to resolve the violations. Existing or continuous docket violations must be corrected or resolved in one of these ways before the Department can issue any plan approval or operating permit to the applicant. It is important to note that compliance schedules are not available to new sources. They are expressly limited to existing sources that are out of compliance. In addition to the review of the compliance form, the permit reviewer should also coordinate plan approval or operating permit review with the compliance specialist, operations section, and central office to determine whether the applicant or a related party has other existing or continuous violations of the act, regulations, plan approval, permit or Department Order. In those circumstances where there are other violations, the procedures outlined above for attempting to resolve violations and for placing violations on the docket should be followed. 273-4130-004/May 24, 1996/Page 5

Ongoing Compliance Review The decision to place an applicant or permittee on the compliance docket may be made at any time. When an existing or continuous violation is identified, the regional staff must decide whether the violation can be resolved informally, corrected or satisfactory progress toward correction or whether formal action, including the use of the compliance docket, is warranted. In general, the procedures described in the previous section should be followed. The regional manager and litigation attorney should be briefed concerning the violation. Failure to resolve the violation will place the permittee or applicant on the compliance docket. The informal resolution process described above should be followed. In other words, a letter should be transmitted to the applicant providing an opportunity to resolve the violation within a certain time frame. A compliance notification letter is attached to this procedure for this purpose. If the problem is not resolved, a compliance docket notification letter should be sent to the responsible party. The decision to place a company on the docket is appealable within thirty (30) days to the Environmental Hearing Board. Special Cases There are a number of special circumstances that need to be reviewed on a case-by-case basis when they arise. Questions concerning special circumstances should be referred to the regional program manager and the central office Division of Compliance and Enforcement for review. For example, periodic CEM violations must be evaluated on a case-by-case basis to determine whether they are of the type and frequency to warrant action under Section 7.1(a). If those violations occur each time the source is started up or shut down, they may be indicative of an existing or continuous violation that must be resolved before a permit or plan approval can be issued. On the other hand, if they are simply isolated "operational glitches", they may not be indicative of an existing or continuous violation. Compliance Docket Maintenance As described in the previous section, decisions to place a violation on the compliance docket should be made by the regional manager following a review for legal sufficiency with the regional litigation attorney. A notification letter should be sent to the applicant and an e-mail message transmitted to all regional managers and the central office indicating that the applicant and related parties have been placed on the docket. The central office will maintain this e-mail system and provide hard copy backup. 273-4130-004/May 24, 1996/Page 6

Inquiries concerning applicants, permittees and related parties on the compliance docket should be made to both the region making the compliance docket entry and the central office. This will ensure that both the central office and the regional offices are involved in maintenance of the docket. In some circumstances, source owners and operators have sources in more than one region. In that situation, the regional managers from each region should consult with one another concerning any violations identified by one of the three mechanisms described above and should make a joint decision concerning the appropriate mechanism for resolution of those violations. In addition, regional attorneys from each region should be involved. Finally, if used properly, the compliance docket is one of the most effective mechanisms to bring about compliance. It provides a mechanism to identify violations, and, through compliance schedules, a procedure to resolve violations while allowing sources to continue to operate. Initially, regional offices will be primarily responsible for identifying and resolving existing and continuing violations and the central office will be responsible for developing a database providing information about applicants and violation histories. In the long run, it is planned that an interactive computer based system will be available to evaluate compliance history of applicants and related parties.

273-4130-004/May 24, 1996/Page 7

COMPLIANCE DOCKET FORMS

Flow Chart Incomplete Compliance Compliance

for Compliance Review Application Letter Review Notification Letter Docket Notification Letter

273-4130-004/May 24, 1996/Page 8

FLOW CHART FOR COMPLIANCE REVIEW

Compliance History Received

Are Documented Conduct or Deviations Reported

no

yes

Violation Identified by Regional Staff

Are There Existing or Continuous Violations

no

Issue Plan Approval or Permit

yes

Has Issue Been Resolved Informally

yes

Plan Approval/ Operating Permit Review Continues no

Do You Have Regional Manager Approval to Docket

no

yes

Place on Docket Do Not Issue Permit or Plan Approval

273-4130-004/May 24, 1996/Page 9

_______________________________ _______________________________ _______________________________ _______________________________ (xxx) YYY-zzzz __________ __, 19__ _______________________ _______________________ _______________________ _______________________ _______________________ Re:

Incomplete [Plan Approval or Operating Permit] Application

Dear Applicant: You recently submitted to the Department an "Air Pollution Control Act Compliance Review Form" as part of your application for [a plan approval or an operating permit]. The form you submitted is incomplete because: _____

You failed to complete the following sections of the form _____________________________________________.

_____ The form is not signed by two corporate officers or one corporate officer and one corporate employee in Pennsylvania with sufficient authority over the activity being permitted to execute this form on behalf of the corporation. Please submit an original and two copies of a new compliance review form, completed and signed according to the new instructions. Do not submit only a portion of the form. A blank form is enclosed for your convenience. As an alternative, you may correct the existing form and sign and notarize a new affidavit page. Sincerely,

Regional Air Quality Program Manager Enclosure

_______________________________ 273-4130-004/May 24, 1996/Page 10

_______________________________ _______________________________ (xxx) YYY-zzzz __________ __, 19__ _______________________ _______________________ _______________________ Re: Compliance Review Notification; __________ Application No. __________ Dear __________: The Department has begun processing and reviewing Plan Approval or Operating Permit Application No. ________. Based upon information available to the Department at this time it appears that there is documented conduct and/or deviation(s) of the Pennsylvania Air Pollution Control Act, rules or regulations promulgated thereunder, plan approval, permit or Department Order exist(s) at one of your facilities or the facility of a "related party" in Pennsylvania. The documented conduct and/or deviation(s) are identified on the enclosed page. Section 7.1(a) of the Air Pollution Control Act precludes the Department from issuing or reissuing any plan approval or operating permit if violation(s) are indicated on the Department's compliance docket, unless the violation(s) are corrected to the Department's satisfaction. A copy of Section 7.1 is enclosed for your review and information. The above noted documented conduct and/or deviation(s) appear to be existing or continuous and may be placed on the compliance docket if they are not resolved. If that occurs, the Department would be precluded from approving your application. If you wish to contact me to discuss these documented conduct and/or deviation(s) and possible resolution, you may do so at the letterhead address and telephone number. This letter does not constitute a decision on your application. This letter also does not suggest that the application meets other applicable requirements. Sincerely,

Regional Air Quality Program Manager Enclosures

273-4130-004/May 24, 1996/Page 11

DOCUMENTED CONDUCT AND/OR DEVIATIONS

Source

Permit No.

Location

Description

Date

Source -- describe the source per APCA (i.e. cement storage silo) Permit No. -- Obvious Location -- County and municipality Description -- Sections(s) of APCA and regulations deviated, short description (e.g. "excessive visible emissions") and order, if relevant Date -- Date of the violation, or date first observed

273-4130-004/May 24, 1996/Page 12

_______________________________ _______________________________ _______________________________ _______________________________ (xxx) YYY-zzzz __________ __, 19__ _______________________ _______________________ _______________________ _______________________ _______________________

Re:

Compliance Docket Notification

Dear _____________________: The Department has identified unresolved existing or continuous violation(s) of the Pennsylvania Air Pollution Control Act, rules or regulations promulgated thereunder, plan approval, permit or Department Order at one of your facilities or the facility of a "related party" in Pennsylvania. The unresolved violation(s) are identified on the enclosed page. Pursuant to Section 7.1(a) of the Air Pollution Control Act, the Department may not issue or reissue any plan approval or operating permit if such violation(s) are indicated on the Department's compliance docket. A copy of Section 7.1 is enclosed for your review and information. You are hereby notified that you are being placed on the Department's Compliance Docket because of these violations. No operating permit or plan approval can be issued to either you or any related party until these violation(s) are resolved. For existing sources, the source can continue to operate out of compliance if a compliance schedule is established which results in the source obtaining compliance. The compliance schedule must be included as a permit amendment for sources under permit and may be incorporated into a consent order and agreement for other sources. Please contact ____________________ to discuss resolution of these existing violations.

273-4130-004/May 24, 1996/Page 13

Any person aggrieved by this action may appeal, pursuant to Section 4 of the Environmental Hearing Board Act, 35 P.S. Section 7514, and the Administrative Agency Law, 2 Pa.C.S. Chapter 5A, to the Environmental Hearing Board, P.O. Box 8457, Harrisburg, PA 17105-8457, (717) 787-3483. TDD users may contact the Board through the Pennsylvania Relay Service, (800) 654-5984. Appeals must be filed with the Environmental Hearing Board within 30 days of receipt of written notice of this action unless the appropriate statute provides a different time period. Copies of the appeal form and the Board's rules of practice and procedure may be obtained from the Board. The appeal form and the Board's rules of practice and procedure are also available in braille or on audiotape from the Secretary to the Board at (717) 787-3483. This paragraph does not, in and of itself, create any right of appeal beyond that permitted by applicable statutes and decisional law. Sincerely,

REGIONAL AIR QUALITY PROGRAM MANAGER Enclosures

273-4130-004/May 24, 1996/Page 14

OUTSTANDING VIOLATIONS

Source

Permit No.

Location

Violation

Date

Source -- describe the source per APCA (i.e. cement storage silo) Permit No. -- Obvious Location -- County and municipality Violation -- Sections(s) of APCA and regulations violated, short description (e.g. "excessive visible emissions") and order, if relevant Date -- Date of the violation, or date first observed

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