May 7, 2008

Maricopa County Air Quality Enforcement Summit Comments

1. Deviation from Arizona Revised Statues and Maricopa County’s own Enforcement Policy has resulted in a hostile regulatory environment.
 
The Compliance Status Notification (CSN) has been abandoned by the Maricopa County Air Qualtiy Department.  ARS§ 49-471.03 regarding inspections states, “The control officer shall follow the protocols and allow permittees opportunities to correct deficiencies found during inspections”. Further, ARS§ 41.1009 requires that, “enforcement documentation must demonstrate the severity of a violation or risk to any person the public health, safety or welfare of the environment or issue an CSN.
 
Therefore, ARPA requests the following:

• violation severity be considered by inspectors consistent with the Enforcement Policy and Procedures and ARS§ 41-1009;

• inspectors are authorized to issue such notices by the Director of Air Quality; and
 
• the permit holder should have the opportunity to correct a problem, particularly if the concern is non-emissions based, without receiving a violation. (An example, would be a recordkeeping or documentation violation or a spray bar that is not functioning, yet there are no resulting emissions.)
 
When adopting new air quality rules the County was required to consider Best Available Control Measures (BACM) and Most Stringent Measures (MSM) nationwide.  Many counties, including Clark County, Nevada, had existing rule requirements that met BACM/MSM and therefore had to be considered for inclusion in Maricopa County Rules. The County Air Quality Department and members of the regulated community traveled to Clark County to better understand the rule requirements, how they were implemented and enforcement practices employed locally.   Clark County explained in the meeting that their enforcement efforts were concentrated around the monitors and inspectors issued CSN’s contingent upon the severity of the violation and compliance history of the permit holder.  If the County would consider Clark County’s control measures for inclusion in our air quality rules, it would make sense to consider methods of enforcement that have been working there, as well.
 
According to comments made by the county staff in a Brown Bag Seminar (August 2006), approximately 80% of NOV’s are recordkeeping and paperwork violations.  If a high percentage of NOV’s are paperwork, it stands to reason that a proportionate amount of penalties are, too.  The County has “publicly embarrassed” violators, according to the former director, but the majority of the citations are not actual emission violations which is very misleading and disingenuous.  These minor infractions without an environmental impact have become a significant perceptual issue.
  
• Turning in annual emissions reports one day late has resulted in multiple NOV’s for one member company resulting in penalties costing thousands of dollars.  Are these enforcement actions addressing the air quality problem that we are trying to correct with Rule 310/316?  Administratively, members receive fines for late emissions inventories, improper recordkeeping and not having Dust Control Plans and Operations and Maintenance Plans that were filed but not approved by the County.  A CSN should be issued for these violations or the correction of the violation should be, depending on the violation, a consideration in the penalty process.
2. Enforcement negotiation begins with an assumption of guilt.

Getting NOV’s rescinded is very difficult.  ARPA’s members have expressed concerns regarding violations issued without evidence that clearly supports the violation from a legal and technical standpoint.  The County’s Compliance Section does have the authority to rescind an NOV if a showing of non compliance is not substantiated.  The County Enforcement Policy states, “Enforcement action will be initiated only for violations clearly supported by the evidence”. (Page 3, Section B, second paragraph) 

3. Maricopa County Air Quality Department permitting accountability must be improved.

It will be very helpful to have guidance and clarification from the County regarding compliance questions. ARPA appreciates the County’s commitment to create such a guidance document, as discussed in the March 12, 2008 Board of Supervisors meeting, that will alleviate unclear expectations.  This would also help develop consistency in enforcement among inspectors avoiding conflicting interpretations of rule requirements.  Further, in order to moderate the impact of very prescriptive and complex rules ARPA encourages the Enforcement Section to exercise administrative and enforcement discretion regarding permitted site/case specific conditions or limitations.
The County should exercise administrative and enforcement discretion as permit approval can be many months – Permitting can be an enforcement issue when a facility operates without an approved permit or permit renewal.
 
• As an example a company received an NOV for not submitting an air quality permit renewal on, or before, the 6-month expiration date of the permit.  Yet, one of their permits, submitted in time, has been "under review" by the County for 18+ months.  So, companies are fined for not meeting timelines, even though the said permit has not expired, yet there is no rule stating how long the County has to issue a new permit?  Reasonable permitting or plan approval time frames need to be addressed by the County.

• Another company submitted a Dust Control Plan that was neither approved nor disapproved by the County.  Not having an approved dust control plan that was submitted for approval three years earlier does not warrant a violation.  There needs to be accountability in the permitting and document review process.  One possible solution might be logging of permits – Tracking numbers should be assigned immediately.  This would allow both the County and the permit applicant to access the status of a permit at any given time.
 
It has been reported that inspectors leave facilities without mentioning the possibility of issuing NOV’s, which they will later issue in an inspection report mailed to the company address of record.  ARPA believes it is in everyone’s best interest to correct issues immediately, especially when those issues involve actual emissions exceeding the applicable standards.  Additionally, the County should avoid any off site inspections that result in an NOV in the mail.

4.   The County should consider reinstating the courtesy inspection program.
The former director has stated previously that inspectors are obligated to enforce against any infractions. The objective should be education in order to maintain long-term compliance.

5. Additional Comments

• OHV trespass on private/public property has become an increasing challenge. Companies have been issued NOV’s for OHV’s that have created emissions on property. There are regulations prohibiting the placement of fencing in the flood-way.  Because many rock products operations are in the floodway/floodplain, it is difficult to prevent trespass and the subsequent emissions from OHV’s.  ARPA requests that the perpetrators be held responsible rather than property owners.

• The Arizona Rock Products Association has offered to arrange training opportunities for new inspectors to learn about the rock products industry and to conduct inspection training exercises on property.  These types of programs have been successful with other county agencies and the EPA. ARPA would like to encourage the County inspectors to learn more about the industries under their jurisdiction.
 
• Based on the low amount of SEP’s that have been negotiated in the County should there be a revised policy that would encourage companies to submit?

6. All county policies need to be in writing and compliant with the Regulatory Bill of Rights.