All companies with an air pollution permit (permit-to-install) are subject to regular inspection by the Michigan Department of Environmental Quality's Air Quality Division (AQD). Typically, the inspector will arrive unannounced at your facility. Upon arrival, the inspector will request a chaperone from the facility as part of conducting the inspection.
The MDEQ has a legal right of access for inspections. Inspectors are required to present identification to establish their authority for the inspection. The inspection will be a deep dive into the nitty gritty of your air permit, something that should be done periodically prior to an AQD inspection. During the inspection a walking tour of your facility is performed along with a review of records. The best advice is to cooperate with the MDEQ during the inspection.
Upon completion of the inspection, you should have a good idea if a Violation Notice is forthcoming. Some violations are easy to respond to and easy to correct. Others may be problematic, such as opacity violations or odor nuisances. A company may be issued multiple violations for the same issue. If the issue is not resolved to MDEQ satisfaction, MDEQ can press the issue and refer the situation for “escalated enforcement.” A letter stating such will follow.
An escalated enforcement begins when the MDEQ has deemed the situation worthy of a financial penalty. If you don’t already have one, you’ll likely need a an experienced environmental consultant and attorney because the enforcement unit is now involved. The major functions of the enforcement unit are to:
Initiate appropriate enforcement action to bring a facility into compliance.
Provide support and technical assistance to the State Attorney General on all air pollution enforcement issues referred for escalated enforcement action.
Coordinate formal administrative actions such as contested case hearings, complaints, and revocation of permits. Draft all enforcement documents including violation notices, administrative consent orders, administrative fine orders and consent judgments.
Coordinate with the USEPA on all companies referred for escalated enforcement (high priority violators).
The MDEQ will offer the company enter an administrative consent order (ACO) to resolve the alleged violations. The ACO will include no admission of the alleged violation, but will include a monetary penalty (fine) that could range into the six figures and additional fines for repeat violations (stipulated penalties). The ACO has a fixed time limit that will typically range from three to five years. After the terms of the ACO expires, the company may request that the ACO be voided upon approval by the MDEQ.
The fine will be based on the U.S. EPA penalty policy (formula) that accounts for several factors divided between an economic benefit component and a gravity component. The economic benefit component considers delayed or avoided costs. The gravity component considers the level of violation, the toxicity of the pollutant, the sensitivity of the environment, the length of time of the violation, the size of the violator (ability to pay), degree of willfulness or negligence, degree of cooperation, history of noncompliance and environmental damage. The formula itself is a quantitative standard but is also a matter of negotiation.
As of July 2018, there are over 200 administrative consent orders in effect in Michigan. Once an ACO is issued, your future inspections will be less forgiving, tensions will be high, and the three to five years cannot come and go fast enough. To avoid this unenvious position, make it a point to conduct routine inspections. This is often best facilitated by an outside expert who can shed a new set of eyes onto your operation. These audits can be formal or informal and can be conducted as a mock MDEQ inspection.
CFR has been helping companies achieve regulatory compliance for nearly 30 years. Contact us to learn how CFR can guide your company.