EPA Section 114 Requests - In The Line of Fire

U.S. EPA has expansive authority under Clean Air Act (CAA) Section 114 to request any information it may reasonably require for developing regulations or determining compliance.  Significant enforcement cases often begin with a Section 114 request.  In the 1990s, many petroleum refineries and wood products facilities received Section 114 letters as part of EPA's major enforcement initiatives in those industry sectors.  Trinity has continued to see EPA use Section 114 requests for a variety of reasons.
 
A Section 114 request is a formal, written request for information related to activities subject to the CAA, somewhat analagous to an IRS audit.  Because these requests can seem overwhelming in the amount of information being requested, consider this suggested approach for developing your Section 114 response.

You have received a Section 114 request from the EPA.  What do you do now?
First, don't panic; a planned approach is the best defense.  There are generally two scenarios that result in issuance of a Section 114 request.  First, EPA may simply be developing regulations to address certain activities or emissions at a specific industry, in which case EPA is only seeking information about the industry and activities to support regulatory development.  The August 2008 EPA Section 114 Questionnaire for Boilers, Process Heaters, Incinerators, and Other Combustion Units is a prime example of this type of request.

The second type of Section 114 request is one that is associated with an enforcement investigation.  These requests commonly focus on compliance with federal New Source Review/Prevention of Significant Deterioration (NSR/PSD), New Source Performance Standards (NSPS), and NESHAP or MACT standards.  Once the information is provided, a formal Notice of Violation (NOV) may follow.

Below are ten suggested steps to help you get through the process.

1. Act Quickly.  Speedy, cooperative, and forthright behavior will go a long way with the regulatory agency.

2. Bring in legal counsel.  This is especially important for the second type of Section 114 Request where there is the potential for enforcement action.

3. Develop an action plan and allocate resources.  A list of tasks required and availability of resources will help ensure the request due date is met.

4. Request extensions.  Asking for a realistic and reasonable extension is usually met with a favorable response.

5. Develop a history of plant changes.  For the relevant timeframe, develop a detailed chronology of physical modifications and permit changes.  This task may include document searches and interviews with longtime plant personnel.  Financial records are a good source of information for data on physical changes (i.e., capital expenditures).

6.  Consider regulatory applicability.  If relevant, examine NSR/PSD applicability to any physical changes or changes in the method of operation.

7.  Assess potential exposure.  Evaluate the potential economic and environmental severity of an possible non-compliance issues you discover.  This information may not be relevant to the written response, however it may impact future dialogues with the regulatory agency.

8.  Address enterprise issues.  Ask yourself whether the same issues apply to similar plants within your company.

9. Communicate carefully.  Structure the written response to exactly match the request according to the facts and circumstances.  Depending on the findings, a face-to-face negotiation may be warranted prior to submitting the written response.  It may be appropriate to have legal involvement in drafting communications.

10.  Assess compliance.  Review the Company's system for environmental compliance.  The result may lead to valuable environmental improvements that may also help in negotiating with the regulatory agency.
 
If you do receive a Section 114 Request, remember the key is a good faith response to EPA.  Act quickly and develop a plan of action to ensure your response is forthright and timely.