There are several enforcement options that EPA can take under the CAA. These include the following:

• Issuing an administrative penalty order
• Issuing an order requiring compliance or prohibition
• Bringing civil action in court
• Requesting the Attorney General to bring criminal action

Each of these is discussed below. Individual states may have similar provisions for violation of state statutes and will have provisions at least as stringent as these for violation of state statutes that are delegation of federal statutes.

CIVIL PENALTIES CAN BE ASSESSED UNDER THE CLEAN AIR ACT

• Field citations: No more than $5 000/day up to a maximum of $25 000
• Civil penalties: Up to $25 000/day for each violation
• Whistleblower awards of $10 000 can be given by EPA
• Recovery of attorney and expert witness fees can be assessed

Administrative Penalty Orders

Administrative penalty assessments may be made for violations of any of the provisions of the CAA, including violation of permit conditions. Field citations can be issued by an inspector. These citations have a fine of $5 000/day, and they may accumulate up to a maximum of $25 000. Individuals receiving field citations may request a hearing if they do so within a reasonable time; they will have opportunity to present evidence in defense.

Civil penalties can be assessed for up to $25 000/day for each violation. Also under the category of administrative penalties are whistleblower awards of up to $10 000 that can be made by EPA to persons reporting a violation. A person receiving an administrative penalty may appeal the assessment within 30 days or may appeal a final ruling to the federal district court in an additional 30‐day window. The administrator of EPA is authorized to compromise, modify, or place conditions on a penalty.

Persons receiving administrative penalties should promptly contact the regulating agency to clarify any uncertainty about the violation, identify extenuating circumstances, indicate that the cited noncompliance has been corrected, and negotiate reductions in the penalty. Extenuating circumstances are considered by the agency, and it is unusual for a final penalty to remain as high as the original amount.

Issuing an Order Requiring Compliance or Prohibition

Issuing an order is a more formal, and more serious, response to a violation. It is usually used when a specific problem must be addressed, and when there is the potential for impairing human health or of serious or irreversible damage to the environment. A hearing is required to address an order, and civil or criminal penalties may be assessed subsequently.

Bringing Civil Action in Court

Civil action enforcement is more serious, and potentially a great deal more expensive than the administrative actions discussed above. There is provision in the statute for recovery of attorney and expert witness fees from the defendant during civil action. Under Title VII of the CAAA of 1990, citizen suits can be brought as civil action. Such suits can be based on a Title V permit application that identifies current noncompliance, even if a compliance plan is included in the application. The exception to the ability to bring a citizen suit against current noncompliance is if the noncompliance has already been adjudicated and the compliance plan is part of a consent decree already approved by the court.

Requesting the Attorney General to Bring Criminal Action

Provisions under federal law as well as laws in many states provide for criminal sanctions against both organizations and individuals. Usually, criminal action is reserved for flagrant, intentional violations. It includes up to 2 years imprisonment for false statements or noncompliant monitoring or record keeping, 1 year for negligent endangerment, and up to 15 years and a fine of up to $1 000 000 for knowing endangerment of death or serious bodily injury.

THE CLEAN AIR ACT ALSO PROVIDES FOR CRIMINAL ENFORCEMENT INCLUDING IMPRISONMENT

• Two years for false statements, noncompliant monitoring and record keeping
• One year for negligent endangerment
• Fifteen years for knowing endangerment including knowing release of HAP or EHS causing imminent danger
• Five years for knowing violation of SIP, NSPS, NESHAP, Title V, or Section 114 requirements
• Fine of approximately $250 000 for individuals, approximately $500 000 for organizations

Emergency as a Defense

If there is a release of pollutants that would otherwise be considered a violation, it is possible to argue that it was an emergency. For this purpose, an emergency is defined as any sudden and reasonably unforeseeable event beyond the control of the source that requires immediate corrective action to restore normal operation and causes exceedence of technology‐based emission limitations.

If the noncompliance is caused by improperly designed equipment, lack of preventative maintenance, careless or improper operation, or operator error, it is not considered an emergency. An emergency can be used as a defense if there are properly signed operating logs or other evidence that indicates an emergency occurred and the cause can be identified, the facility was being properly operated at the time, and the permittee took all reasonable steps to minimize levels of exceedences.

To use this defense, notice must be provided to the permitting agency within two working days containing a description of the emergency and steps taken to mitigate emissions and perform corrective actions. If the only way to reduce the emissions to allowable levels is to halt or reduce activity at the plant, and that is not done, the emergency defense cannot be used. That is, if you do not shut down, you are liable.

As with other compliance issues, good record keeping is vital to protection from prosecution when using the emergency defense. It is necessary to have records indicating that the plant had been operating normally and that efforts were made to halt or reduce the excess emissions.

Section 114: Fact‐Finding

EPA has the authority to obtain information from a source in anticipation of prosecution. If a source receives a letter from EPA citing Section 114, it should be considered at least as serious as an Internal Revenue Service audit. EPA may ask questions or seek information about both emissions and the structure of environmental management in the company. EPA may request records, monitoring, sampling, or compliance certifications. EPA has the right of entry to company premises on which records are kept when credentials are presented.

SECTION 114 IS FACT‐FINDING IN ANTICIPATION OF PROSECUTION

• EPA may request records, monitoring, sampling, or compliance certifications.
• Receipt of a Section 114 letter is equivalent to an IRS audit.
• Questions about both emissions and the way environmental management is organized are likely.
• Section 114 responses should be prompt, accurate, and limited to the questions asked.

Often a letter is stimulated by evidence obtained by EPA that excess emissions have occurred. This can include emissions reported as part of EPCRA 313 Form R reporting of releases to the environment, newspaper accounts, or notices of receipt of a variance from state emission limits.

Responses to Section 114 letters should be prompt, accurate, and limited to the questions asked. Counsel should participate in preparing or reviewing the response and in any subsequent meetings with the agency staff.

Inspection Protocol

Inspections are a standard activity for permitting agency staff, and a facility should expect to be inspected periodically. Some very large facilities, such as oil refineries, have a full‐time inspector from the regulating agency assigned, and this person is at the facility every day. Other facilities have less frequent inspections. For any facility, an inspection protocol is worthwhile.

The inspection protocol should identify who is to respond when an inspector comes, what responses are appropriate, and what rights the inspector has as well as rights the company has.

The agency staff, or an authorized representative, has the right of entry to a facility. The receptionist or gate guard should be instructed about whom to call when an inspector presents his or her credentials and asks for entry. A member of the environmental staff should greet the inspector and, unless the inspection is anticipated and routine, take the inspector to a conference room for a pre‐inspection conference. It is appropriate to ask the inspector what he or she wants to see. Although the company cannot bar access, safety provisions are often necessary for visiting certain areas of the plant, and planning such visits is usually required by plant safety rules. Inspectors should be required to use all safety equipment required of employees and other visitors, and in some instances a safety briefing is needed before visiting the plant.

Once the area to be visited or information sought has been identified, the inspector should be escorted promptly and directly to that area. It can be a safety hazard as well as present a risk of providing misleading information for an inspector to visit a facility without an escort. In the event that the inspector requests a stop at another area not covered by the original request, such a stop can be prohibited until another initial interview has been conducted, since the request was not covered in the original interview.

If an inspector uses a recorder or any test instruments, the company should also record the same information and test the same location. In some instances, it may be appropriate to videotape the inspection.

At the end of the inspection, an exit conference should be held. The inspector should be asked what information was obtained, and copies of any information should be requested.

Most companies develop good working relationships with air quality inspectors who regularly visit their plants and it is important that procedures used to respond to an inspection are not hostile or unnecessarily inhibiting. However, it is not unusual for an inspector, after working some time with a facility, to assume that he or she is as knowledgeable of facility operation as the plant operators. Since this is almost never the case, escorts and explanations of operations are needed, even for experienced inspectors.