High Priority Violator (HPV) Policy Questions & Answers
A. General HPV Policy Issues
Comment: Are the General and Matrix HPV Criteria separate or must one of each type of criteria be met?
Response: The criteria are separate. If any of either the General or Matrix Criteria is met, the violation is an HPV.
Comment: Does the HPV Policy apply if specific equipment or emission units are in violation but the overall emissions do not exceed the source's total emissions cap?
Response: If the source is major, the HPV Policy applies to any emissions violation involving a major source pollutant, whether it is a violation of an emission limit applicable to specific equipment or applicable to the entire source. It makes no difference that one limit is violated and another limit applicable to the overall source is not violated. On the other hand, if the violation is at a specific unit at a synthetic minor source and does not affect the synthetic minor status of the source, the HPV Policy would not apply. (See discussion under Section B(3) of this report).
Comment: Must there be mutual agreement between EPA and the State or Local agency on whether a source should be listed on the HPVL?
Response: Hopefully, disagreement over application of the Policy will be rare. A significant, lengthy collaborative effort involving EPA, State, and Local agency representatives was made to develop the HPV criteria in this Policy. In most cases, by design, the criteria are very specific and should not be subject to disagreement. In some cases, however, it was not possible to anticipate the specific violations that EPA and the State or Local agency would classify as an HPV, and the Policy allows room for further discussion and agreement (e.g., a "substantial" violation of section 112 (r)). When these circumstances occur, EPA anticipates that agreement between the State or Local agency and the EPA Regional Office will occur. However, EPA has the final authority to determine whether a source should be placed on the HPVL.
B. General HPV Criteria
(1) General HPV Criterion 1: Failure to Obtain PSD or NSR Permit.
Comment: Is a synthetic minor source subject to this criterion if it is far below major PTE thresholds and fails to obtain a permit for a modification?
Response: Yes, if the modification is a major modification.
Comment: Is a major source's failure to obtain a minor new source permit an HPV?
Response: No, unless the source violates the permit to the degree that PSD/NSR thresholds would apply. If this should occur, the violation would be an HPV under General Criterion 1.
(2) General HPV Criterion 2: Violation of Air Toxics Requirements.
Comment: If a source is classified as major based upon its combined HAPs emissions, would all HAPs at the source be subject to the HPV Policy?
Response: Only those pollutants covered by a Federal NESHAP/MACT would be subject to the HPV Policy.
(3) General HPV Criterion 3: Violation That Affects Synthetic Minor Status.
Comment: When should a synthetic minor source that emits over its cap but not over the major source thresholds be placed on the HPVL?
Response: The answer to this question depends on the circumstances. If the source's limit is 80 tons per year and it operates at 90 tons per year, it could be an HPV even though it has not gone over the 100 ton per year major level. Disregard for a limit may show that the source is not seriously attempting to comply with its synthetic minor status. As the court in Louisiana-Pacific stated, "to hold that permit limitations which are repeatedly violated should nonetheless be considered in determining potential to emit would give better treatment to sources which knowingly violate such conditions than the treatment currently afforded sources which comply with the law." 682 F. Supp. 1144, 1161 (D.Colo. 1988).
Comment: What is the meaning of the language "knowingly and regularly" as presented in the Workbook in Question 188.8.131.52 in the context of violations that affect synthetic minor status?
Response: The language "knowingly and regularly" should be interpreted in light of the Louisiana-Pacific opinion quoted above.
Comment: Should the HPV Matrix limits be used as a reference when determining whether a source has "regularly" violated limits?
Response: No. For this criterion, it is not necessary to calculate the frequency or magnitude of the violations. There is no specific number or level of violations that justify such an HPV determination. The decision should be made on a case-by-case basis.
Comment: What if a synthetic minor source only exceeds its synthetic minor related permit conditions once?
Response: One violation generally would not lead to placement on the HPVL. The circumstances should always be evaluated to determine whether the nature of the violation indicates that it is likely to recur. For example, is the increased operating time related to a temporary and short term recovery from a previous production interference or market related condition, or is it responding to a long term or unpredictable demand? Also, do the violations reflect a disregard for operating limits, or is the source taking steps to avoid future violations, or to ensure that PTE limits will not be exceeded?
Comment: What about a synthetic minor source that does not violate any one parameter consistently, but consistently violates different parameters?
Response: It is important to examine whether the violations are routine, not whether the violations are of a consistent type. The agency should consider all of the violations to determine whether the related emissions are likely to trigger a major source threshold during a 12 month period, and if not, whether the violations indicate a trend of negligence or disregard so that there is a risk that the threshold is likely to be violated at some time in the future.
Comment: Are all synthetic minor sources equal under the Policy? For example, are sources with caps of 49 tons per year treated identically to those with caps of 30 tons per year?
Response: Violations at all synthetic minor sources receive equal consideration under the HPV Policy. However, as provided in General Criterion 3, to be classified an HPV the violation must involve an emission limit or permit condition that affects synthetic minor status. If synthetic minor permit conditions have been set at artificially low limits, this should be taken into account when determining whether violations are likely to affect synthetic minor status.
Comment: What if minor source violations are such that actual emissions currently exceed major source levels?
Response: These violations would unquestionably be HPVs under General Criterion 3. However, the status of the source may also have changed. If major, the violations may also be covered under General Criterion 1 (Failure to Obtain a PSD or NSR Permit) or General Criterion 6 (Failure to Apply for a Title V Permit), depending on the facts of the case.
Comment: What about a case where the source is major, but not for particulates, and fails a particulates test?
Response: The violation would not be an HPV for failing the particulates test. However, if as a result of the failed test the agency determines that past and/or future particulate emissions may trigger the PTE major threshold, the violation should be classified an HPV for affecting synthetic minor status.
Comment: How does the Potential to Emit (PTE) Transition Policy affect a synthetic minor source under the HPV Policy? (Under the PTE Transition Policy, if a source's actual emissions have never exceeded 50% of major source thresholds since January 1994, no permit is required.)
Response: The HPV Policy should be applied in a manner that is consistent with the PTE Transition Policy. If the source does not apply for a permit but ends up emitting at major source levels, the violations would not be covered under General Criterion 3. However, they could be covered under General Criterion 1 (Failure to Obtain a PSD or NSR Permit), General Criterion 2 (for a MACT source), or General Criterion 6 (Failure to Apply for a Title V Permit).
(4) General HPV Criterion 4: Enforcement Violation.
Comment: If a major source fails to make a penalty payment on time, would this be considered a violation of a "substantive" term of an enforcement order?
Response: It depends on how late the payment is. At some point in time failure to pay on time must be considered a failure to pay at all, and this would be a substantive violation. However, there is no guideline or rule of thumb to determine when a late payment is too late. The agency should consider the circumstances of each case to determine whether the lateness is reasonable.
(5) General HPV Criterion 5: Title V Certification Violation.
Comment: Is there any grace period for the failure to submit a Title V certification?
Response: Yes. A good rule of thumb would be 60 days.
Comment: Is an annual Title V certification that is incorrect an HPV?
Response: The fact that a certification is incorrect does not necessarily mean that the violation is an HPV. However, this is an area of the Policy that has purposefully been left to the State and Local agencies and the EPA Regional Offices to address and define as experience with the Title V certification requirements evolves. State and Local agencies are encouraged to consult with their Regions and use good judgment as to whether the errors are sufficient to place the source on the HPVL.
Comment: If a source certifies compliance but has failed to apply for a minor new source permit and no NOV has been issued, would this be a "substantial" violation meriting HPV status?
Response: Again, this is a question requiring good judgment based on the actual circumstances. However, the facts that the violation involved a minor new source installation without a permit, and that no NOV was issued should not control the outcome. Operating a minor source without a permit is a violation that must be reflected in the certification, even if the permitting agency may have decided not to issue an NOV.
(6) General HPV Criterion 7: Testing, Monitoring, Recordkeeping, or Reporting Violation.
Comment: Would failure to quality assure or certify monitors that are not used for compliance be considered an HPV?
Response: It is not an essential condition under General Criterion 7 that the monitors be used for compliance determinations. If they are required under a federally enforceable regulation or permit, failure to perform required quality assurance or certification procedures would be an HPV if this "substantially interfered with enforcement or determining the source's compliance status." It is possible that this could occur with a monitor required only as an indicator of process or control system problems.
Comment: When is a late compliance report required by a Title V Permit an HPV? Does it make a difference if the late compliance report shows compliance?
Response: If the late compliance report is a certification required under the Title V Permit, and the certification is over 60 days late, the failure should be considered an HPV under General Criterion 5 regardless of the content of the report. If it is a periodic self monitoring report, whether it should be classified an HPV depends on whether it "substantially interferes with enforcement or determining the source's compliance status with applicable emission limits" under General Criterion 7. If in such a case the source is reporting compliance, this could be a factor considered by the agency in determining whether the lateness "substantially" interfered with a compliance determination.
(7) General HPV Criterion 8: Emission Violation.
Comment: If a source conducts a stack test before the absolute deadline and fails, would this be an HPV, or would the source be given until the deadline to retest?
Response: If the stack test failure is a violation, it would be an HPV. Under the NSPS, for example, any failure of a stack test is a violation and would be an HPV.
Comment: In some cases, limits are set and then a stack test is performed that demonstrates that the limit is too low to be met by the source. In those instances, the permit limit is usually raised, but would the stack test failure be an HPV?
Response: Yes, the stack test failure would be an HPV. However, it might be appropriate, if the permit is amended, to treat the case as resolved or dismissed at that time.
(8) General HPV Criterion 10: Section 112(r) Violation.
Comment: If the content of a §112(r) risk management plan is inadequate, would this be an HPV?
Response: In general, no. However, if the inadequacy is essentially equivalent to the failure to submit a plan, the violation would be an HPV. The rationale for this approach under the HPV Policy is based on the current, limited level of experience implementing §112(r).
C. HPV Matrix Criteria
(1) HPV Matrix General Issues.
Comment: How should operating time be calculated under the Matrix Criteria?
Response: To calculate operating time, use the actual operating hours of the source during the reporting period, not the potential operating hours. Remove any time that monitors were inoperative or not producing valid data. Also, remove any period for which monitored emissions are treated as exempt. Make certain that any overlap in these two periods is identified and not removed twice.
Comment: When applying the HPV percentage thresholds in the Matrix Criteria, how many digits are significant in determining whether a threshold is exceeded?
Response: There is no limit. Any violation that exceeds the matrix threshold would be an HPV. No inclusion of significant digits was considered when establishing threshold levels in the matrix criteria. Therefore, when applying the criteria, anything above the threshold should be an HPV.
Comment: If a permit states that emissions during startup/shutdown are not violations, could the exceedances during startup/shutdown still be HPVs?
Response: The permit language should be examined. In general, EPA's policy is not to accept an exemption of this nature in a permit unless it is specifically prescribed by Federal regulation (e.g., 40 CFR 60.11). Note that exemptions of this nature apply only to the HPV Matrix Criteria that involve emissions or opacity monitoring and are not recognized for surrogate limit exceedances. Also, they do not apply in any case if the exceedances occur for greater than 25% of the time for each of two consecutive reporting periods, or for greater than 50% of the time in any one reporting period.
(2) HPV Matrix Criterion 2: Emission Violation Using Process/Formulation Data.
Comment: If material usage limits are exceeded, but there are no excess emissions, would this violation be an HPV? (For example, a source may exceed its coating usage limit but use a lower VOC coating.)
Response: There are no specific HPV criteria applicable solely to material usage limits. However, since the material usage violation either results in excess emissions, affects synthetic minor status, or is a violation of a NESHAP or MACT, the presumption would be that the violation results in excess emissions.
(3) HPV Matrix Criterion 3: Surrogate Limit Violation.
Comment: What is a "direct" surrogate for an emissions limit?
Response: A direct surrogate requires that the surrogate limit and the emissions limit be correlated. Incinerator temperature is a good example of when effective correlation can be made with a VOC destruction efficiency related emissions limit.
Comment: In determining what surrogate measurements amount to an emissions violation, may the agency use manufacturer specifications, or should the agency require testing at the unit?
Response: The basis for establishing a surrogate limit correlation is a matter for the agency setting the standard to decide. The HPV Policy does not intend to establish criteria or standards for making such a correlation, or to provide a basis for questioning any correlation that has already been made. This Matrix Criterion applies only to violations where the correlation has already been established as part of the surrogate limit.
Comment: Does HPV Matrix Criterion 3 apply only if there is a surrogate limit in the source's permit or in an applicable regulation?
(4) HPV Matrix Criterion 4: CEMS Detected Violation.
Comment: What CEMSs are covered by Matrix Criterion 4 other than a CEMS required for NSPS units? Should data from a monitor not installed for the purpose of determining compliance be used to determine an HPV?
Response: Data from any CEMS that is certified under Federal performance specifications can be used to determine whether an HPV exists. These data may also be used as credible evidence of a violation.
Comment: When calculating pollutant lbs/hr to determine whether the SST has been exceeded at a boiler, should the rated capacity be used in heat input calculations, or should the actual heat input be used?
Response: If actual heat input information is available, it should be used. If unavailable, rated capacity would be an acceptable substitute. Note that EPA's Acid Rain Website provides the reported lbs SO2/hr for boilers that are subject to the Acid Rain Program. However, when using Acid Rain Program data, be aware that the calculations may have used a special missing data calculation protocol to fill the gap when CEMS data were unavailable.
Comment: Are SST calculations subject to the same time requirements as the reference limit calculations?
Response: Yes. For a violation to be an HPV, a source must have violated the limit plus the SST for the time specified in the Matrix.
(5) HPV Matrix Criterion 5: Opacity Violations.
Comment: Why are there different ways to calculate the HPV threshold for opacity violations? (Percent opacity is used for COMS detected violations, and a percent of the limit is used for Method 9 observations.)
Response: The two different calculation methods reflect the resolution of issues raised during the development of the HPV Policy. The intent was to provide some additional leeway in cases involving Method 9 observations (primarily related to the 20% opacity standard).
Comment: Does Matrix Criterion 5 apply only to particulate opacity measurements, or does it also apply to other types of opacity measurements?
Response: Matrix Criterion 5 applies only to particulate matter emissions and not to other pollutants or pollutant conditions that may create opacity when exiting a stack.
Comment: If the applicable SIP regulation allows one six minute average per hour above the limit, would that exceedance be excluded from the HPV calculation?
Response: Yes, it would be excluded because under the EPA approved regulation it is not a violation.
Comment: If a source is out of compliance for 29 days and comes into compliance on the 30th day, would it still meet the 30 day mitigating factor in footnote 5 to Matrix Criterion 5? (Footnote 5 indicates that a source that corrects the violation and returns to compliance within 30 days is not an HPV.)
Response: Yes, the source would meet the 30 day mitigating factor and would therefore not be an HPV under Matrix Criterion 5. Depending on the circumstances (for example, if the source deliberately took no corrective action for 29 days), the violation could still be put on the list as a discretionary HPV. Note that the 30 day exception applies only if the source has corrected the problem so that it is unlikely to recur (i.e., the source is determined to be in continuing compliance). Also, as in the case of other non-HPV related violations, EPA expects that these types of violations will still be addressed through effective enforcement.
D. Timely and Appropriate Enforcement
Comment: Is the mutual agreement of the State and Region required for a lead change?
Response: No. In general, EPA believes that a lead change from the State to EPA should reflect mutual agreement of the two agencies. As the Policy states, however, EPA has the final say on this issue.
Comment: What if 90 days (the maximum time permitted under the T&A Timeline) is not enough time to determine whether a violation has occurred?
Response: The deadlines in the T&A Policy are goals, not absolutes. A discussion with the Regional Office should take place on this issue.
Comment: Is a violation considered to be "addressed" if a State issues a nonjudicial consent order?
Response: If there is a signed order containing a source's agreement to pay a penalty, etc., the violation will be considered to have been addressed.
Comment: Is a compliance advisory letter (issued informally by some agencies in lieu of an NOV) considered equivalent to an NOV/FOV in terms of the T&A timeline requirements?
Response: The use of an alternative enforcement procedure to cite a source for violations will not be addressed under the HPV Policy. This is a question that should be raised with the EPA Regional Office, and the EPA Regional Office should agree on how the alternative procedure will be treated under the T&A Timeline requirements.
Comment: Under the T&A Timeline is the date of discovery the day the inspection takes place or the day that followup information is received that verifies the violation?
Response: If a potential violation is identified during the inspection and additional data are needed to document the violation, the day of discovery would be the day of the inspection. However, if no potential violation is discovered during the inspection, but records requested during the inspection and submitted following the inspection document a violation, the date of discovery would be the date that the records are received.
E. HPV Tracking
Comment: If a State discovers NSPS, PSD, and MACT violations during the inspection of a large source, should these be reported to AIRS as three HPVs or one?
Response: If the violations are discovered in a single surveillance event, they should be classified as one HPV.
Comment: If part of a large, complex source is inspected every three months (so that the entire source is inspected in a single year) and an HPV is found during every inspection, should this be tracked as a single HPV (for the year but beginning with the first inspection) or as four HPVs (one for each inspection during the year)?
Response: Each of the four inspections should be tracked separately. In this case the 30 day rule of thumb applies -- only HPVs identified within a 30 day period should be tracked together unless they are clearly part of the same surveillance event (e.g., they are identified in records requested as part of the inspection but submitted more than 30 days following the inspection).
Comment: When penalty amounts are entered into AIRS, should SEP amounts be included?
Response: No, but they should be noted in the Comment field.