Title V Compliance Certification Troutman Sanders LLP Greg

Title V Compliance Certification Troutman Sanders LLP Greg Blount, Margaret Campbell, Debbie Cline

Purpose of Compliance Certifications To verify and document a facility’s compliance with all applicable requirements of the Clean Air Act

Why Are Title V Compliance Certifications Important? Liability is attached to each condition of the permit. EPA utilizes these forms as an enforcement tool to determine if enforcement action is necessary. (1) Inspection (2) Notice of Violation Civil and Criminal Liability for False Reporting

Why Are Title V Compliance Certifications Important? Enforcement/Litigation tool for citizens groups Clear picture of violations without reviewing entire file. Can be misconstrued.

EPD’s New Compliance Certification Forms EPA recently revised the compliance certification requirements. 40 C. F. R. 70. 6(c)(5); 68 Fed. Reg. 38518 (June 27, 2003). No longer required to certify whether the methods used for determining compliance provide continuous or intermittent data. Now must certify whethere was compliance with each and every permit term (monitoring, recordkeeping and reporting). Pursuant to EPA Region 4’s request, EPD created new compliance certification forms that require the permittee to certify compliance with all provisions of the permit

EPD’s New Compliance Certification Forms Can no longer make a general compliance certification for entire permit and provide only deviation information. Primary Change – Must certify for each provision of the permit whether compliance has been: “continuous” “intermittent” “not applicable. ” - If any deviation whatsoever, must indicate “intermittent”

EPD’s New Compliance Certification Forms Three Part Form: Part 1 – Facility Information Part 2 – Compliance Status Part 3 – Deviation Report

EPD’s New Compliance Certification Forms Part 2 – Compliance Status Each separately numbered section of the permit must be certified individually. “Continuous Compliance” – collection of all monitoring data as specified by the permit, with no deviations, and no other information that indicates deviations except for malfunctions during which compliance is not required. “Intermittent compliance” – any form of compliance other than continuous “Not applicable” – Applies to any permit condition that is not enforceable during the reporting year, does not apply to operations at the facility, or does not contain an applicable requirement.

EPD’s New Compliance Certification Forms Part 3 – Deviation Report Deviation defined in Part 1, for purposes of the form, as any excess emissions, exceedances, or excursion identified in the permit or any non-compliance with any term or condition of the permit including those attributable to equipment malfunction, breakdown or upset condition. Report deviations identified in Part 2 that have not been previously reported. Can reference periodic reports (quarterly or semiannual). Cannot reference immediate malfunction reports.

Responsible Official For a Corporation: (1) Corporate officer (2) Other person in charge of principal business function, or (3) Duly authorized representative responsible for overall operation of a source (plant manager) if either (a) (b) or, At least 250 persons employed or $25 M in sales or expenditures, Delegation of authority approved in advance by EPD. For a Partnership: a general partner For a sole proprietorship: the proprietor

Reasonable Inquiry 40 C. F. R. 70. 5(d) requires a Responsible Official to certify compliance based on information and belief formed after “reasonable inquiry. ” - Problem: Little exposure to day-to-day operations - Need to have a process whereby a Responsible Official can certify compliance based on a “reasonable inquiry” - Attorney-Client Privilege

Considerations When Preparing Compliance Certifications EPA & EPD have stated they don’t believe any source can certify full compliance. If a source does certify full compliance, the agencies have said the source can expect an inspection.

Strategies for Completing Title V Compliance Certifications Be overinclusive when preparing certification. Weed out if not a deviation. Better to over report than under report. Remember that leaving out minor infractions is often more important than the underlying violation.

How to Handle the Reporting of Deviations Make sure that each deviation reported is explained and a resolution is provided. - Discuss corrective action. - Inform agency if the facility is now in compliance. Bottom Line – Don’t leave the impression that a violation is ongoing.

Additional Strategies for Completing EPD’s New Compliance Certification Form Remember that legally applicable document is the Title V Permit and not EPD’s Compliance Certification Form. If there is a conflict between the Permit and the Compliance Certification form, follow permit and footnote response on the form.