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 whether there 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)
At least 250 persons employed or $25M in sales or expenditures,
or,
(b)
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.