Handling Non-Compliance and Audit Policy

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Handling Non-Complianceand Audit Policy

Managing Non-Compliance

Malcolm C. Weiss(310) 712-6822

Jeffer, Mangels, Butler & Marmaro LLPFebruary 28, 2006

2688706 v3

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Today’s Topics

Compliance certification requirements Responsible official Penalties

Handling non-compliance EPA Audit Policy

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Today’s Topics

Handling Non-Compliance

EPA Audit Policy

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Determining Compliance

Identify all

applicable regulations

Confirm possession of permits

Review permit

conditions

Review emission

limits

Review compliance

history

Documen-tation

and ???

•Amnesty•Rule 219 Exempt

•Present•Future•Federal•State •Local

•NOVs/NTCs•Source Tests•Variances•Abatement Orders•Audit Reports•Complaints•Interviews

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What If You AreNot In Compliance?

Disclosure (application)

Alternative Operating Conditions (AOC) for

Title V Variance / Order for Abatement for District

Requirements Variance never recognized by EPA

For Non-Compliance Situations

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Disclosure

Duty to supplement or correct your application Upon becoming aware of

a lack or incorrect information Promptly submit supplementary facts or

corrected information

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Alternative Operating Conditions (AOC) Granted by the Hearing Board Recognized if approved by EPA (45 day

notice) Shields from enforcement of otherwise

applicable requirements

Some Districts Use AOC


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Variance companion Does not cover federal rules,

regulations or permit conditions (e.g., NSPS, NESHAPS, etc)

Amends Title V permit

Alternative Operating Conditions

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Facility is or will be in violation Due to conditions beyond company’s

control Taking would be without corresponding

air benefit Reduce excess emissions to the

maximum extent feasible, etc.

Granting an AOC Requires


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Hearing Board Order

Order must include: Emission limits Operational requirements for any source

at the facility MR&R Schedule of increments of progress Term

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Incentives for Self-Policing: Discovery,Disclosure, Correction and Prevention ofViolations – “Audit Policy”

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If specified requirements are met

65 Fed. Reg. 19617 (April 11, 2000)60 Fed. Reg. 66706 (Dec. 22, 1995)

EPA’s Audit Policy

Can reduce exposureto fines and penalties

for violations

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Can Eliminate “gravity-based,” not economic

benefit penalty component Reduce chances for criminal prosecution Avoid routine requests for audit reports

If . . .


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1. Systematic discovery is through audit system or CMS

2. Voluntary discovery, not from applicable requirements

3. Prompt disclosure (21 days)4. Discovery and disclosure are

independent of Gov’t or 3rd parties

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5. Expeditiously remedy harm caused6. Prevent recurrences7. No repeat violations8. Other violations excluded9. Cooperation

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Handling Non-Complianceand Audit Policy

Managing Non-ComplianceMalcolm C. Weiss

[email protected](310) 712-6822

Jeffer, Mangels, Butler & Marmaro LLPFebruary 28, 2006

2688706 v3

Handling Non-Compliance and Audit Policy

Documents

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