Clean Air Act Revision Makes Two Major Changes to Policy on Response to High Priority Violations

November 20, 2014

The U.S. Environmental Protection Agency (“EPA”) has issued a revised Clean Air Act policy on “Timely and Appropriate Enforcement Response to High Priority Violations.” Consistent with the prior policy, issued in 1998, the new policy applies primarily to major and synthetic minor stationary sources of air pollutants. It provides for aggressive enforcement actions on accelerated timetables against violations that meet newly revised criteria. The new policy makes two major changes to the 1998 policy. First, the new policy replaces the complicated violation matrix used to identify high priority violations (“HPV”) under the prior enforcement policy 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 (non-attainment areas).
  2. A violation of any federally enforceable emissions limitation, emission standard, or surrogate operating parameter issued under the Prevention of Significant Deterioration (“PSD”) or nonattainment area provisions of the Clean Air Act, where such violation occurs continuously or regularly or intermittently for at least seven days (“Seven Day Violation”).
  3. A Seven Day Violation of any emission limitation, emission standard or surrogate operating parameter in an applicable New Source Performance Standards (“NSPS”).
  4. A Seven Day Violation of any emission limitation, standard or surrogate 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 enforcement agency deems to substantially interfere with the agency’s 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.

Although at first glance the substitution of these discreet criteria for the prior HPV matrix could appear to provide more certainty to the regulated community as to which violations would be treated as HPVs, the exception provided under the sixth criteria might erase all such certainty if the agencies rely on it in all but the most unusual circumstances. The new policy became effective on October 1, 2014, so it is too early to predict how the agencies will use that exception. This is an implementation issue that needs to be monitored going forward.

The second major change made under the new policy is the allowance for an off-ramp from HPV enforcement actions. Under the former policy, once a violation was determined to be a HPV, the ensuing enforcement action could be resolved only through entry into an enforceable agreement. Under the new policy, a HPV may be removed from HPV enforcement if (a) the enforcement agencies conclude the evidence of a HPV is weak, or (b) the HPV does not involve continuing violations or a threat to public health, and expenditure of agency enforcement resources is not in the public interest. This off-ramp may provide an incentive to the regulated community to bring a violating source quickly back into compliance. Given the broad discretion the agencies will have in removing a violation from HPV enforcement, only time will tell whether this off-ramp will serve a real or merely illusory compliance incentive.

If you have questions about the issues covered in this alert, you may contact Mark Jacobs ( or 313-568-6845), or your relationship attorney.

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