# Enforcement Procedures and Penalty Manual (2022)

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## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

Enforcement Procedures and Penalty Manual

SOUTHERN UTE INDIAN TRIBE

Enforcement Procedures
and Penalty Manual
11/29/2022

Enforcement Procedures and Penalty Manual
Table of Contents

I. Definitions .............................................................................................................................................. 3
II. Introduction ........................................................................................................................................... 6
III. Goals .................................................................................................................................................... 6
IV. Authority ............................................................................................................................................. 7
1. Inspection and Information Collection ................................................................................................. 7
2. Enforcement Actions ............................................................................................................................ 7
3. Penalties ................................................................................................................................................ 7
V. Enforcement Screening ......................................................................................................................... 7
1. Enforcement Evaluation ....................................................................................................................... 7
2. Enforcement Responses ........................................................................................................................ 8
VI. Enforcement Pathways ........................................................................................................................ 9
1. Informal Process ................................................................................................................................... 9
a. No Further Action Letter............................................................................................................... 9
b. Area of Concern ............................................................................................................................ 9
c. Written Warnings .......................................................................................................................... 9
d. Compliance Advisory ................................................................................................................. 10
e. Compliance Advisory Meeting ................................................................................................... 10
f. Settlement Agreement ................................................................................................................. 10
2. Formal Process.................................................................................................................................... 11
a. Notice of Violation ..................................................................................................................... 11
b. Notice of Violation Conference .................................................................................................. 11
c. Settlement Agreement ................................................................................................................. 11
d. Notice of Non-Compliance ......................................................................................................... 11
e. Compliance Order ....................................................................................................................... 12
f. Civil Court Enforcement Actions ............................................................................................... 12
g. Criminal Enforcement Actions ................................................................................................... 12
VII. Violation Categorization .................................................................................................................. 13
1. Minor Violations ................................................................................................................................. 13
2. Moderate Violations ........................................................................................................................... 14
3. Major Violations ................................................................................................................................. 15
VIII. Federally-Reportable Violations .................................................................................................... 16
IX. High Priority Violations ................................................................................................................... 16
1. HPV Applicability Determination ...................................................................................................... 16
2. HPV Resolution Timelines ................................................................................................................. 19
3. Penalties .............................................................................................................................................. 19
X. Penalty Assessment Criteria ............................................................................................................... 20
1. Calculating the Gravity Component ................................................................................................... 20
a. Actual or Potential Harm ............................................................................................................ 20
b. Importance to the Regulatory Scheme ........................................................................................ 21
c. Additional Considerations........................................................................................................... 21
d. Other Factors that Justice May Require ...................................................................................... 22
e. Mitigating Factors ....................................................................................................................... 23
2. Calculating the Economic Benefit Component................................................................................... 24
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a. Economic Benefit from Delayed and/or Avoided Costs ............................................................. 25
b. Economic Benefit from Illegal Competitive Advantage ............................................................. 26
c. Considerations for Adjusting the Economic Benefit Penalty...................................................... 26
3. Voluntary Discovery, Disclosure, and Remediation of Violations ..................................................... 27
a. Interim Approach to Applying the Audit Policy to New Owners ............................................... 27
XI. SUIT/CO Environmental Commission .............................................................................................. 28
1. Notice of Enforcement Action ............................................................................................................ 28
2. Annual Update .................................................................................................................................... 28
3. Administrative Appeal Procedures ..................................................................................................... 28
a. Appealable Administrative Actions and Request for Hearing .................................................... 28
b. Judicial Review ........................................................................................................................... 28
XII. Records Retention and Case Resolution Timelines ......................................................................... 28
a. Enforcement Records Retention ................................................................................................. 28
b. Case Resolution Timeline ........................................................................................................... 29
XIII. Supplemental Environmental Project ............................................................................................. 29
1. SEP Basic Guidelines ......................................................................................................................... 30
2. Categories of SEPs ............................................................................................................................. 31
a. Pollution Prevention Projects ...................................................................................................... 31
b. Pollution Reduction Projects ....................................................................................................... 32
c. Environmental Restoration and Protection Projects ................................................................... 32
d. Environmental Assessments ....................................................................................................... 32
e. Environmental Education and Training ...................................................................................... 33
f. Public Health ............................................................................................................................... 34
g. Other Types of Projects............................................................................................................... 34
3. Extent to Which a SEP Can Mitigate a Penalty .................................................................................. 34
4. Legal Guidelines for Negotiating SEPs .............................................................................................. 35
5. Drafting Enforceable SEPs ................................................................................................................. 36
6. Measurement....................................................................................................................................... 36
7. Failure to Complete a SEP and Penalties ............................................................................................ 37
XIV. Attachments .................................................................................................................................... 39
Attachment 1 – Enforcement Process Flow ............................................................................................ 39
Attachment 2 - Violation Categorization Matrix ................................................................................... 40
Attachment 3 – Clean Air Act Penalty Basis .......................................................................................... 42
Attachment 4 – Clean Air Act Civil Penalty Policy ............................................................................... 46
Attachment 5 – FRV and HPV Policy .................................................................................................... 47
Attachment 6 – Example Area of Concern ............................................................................................. 48
Attachment 7 – Example Request for Information ................................................................................. 50
Attachment 8 – Example Written Warning............................................................................................. 51
Attachment 9 – Example Compliance Advisory..................................................................................... 53
Attachment 10 – Example Notice of Violation ....................................................................................... 56
Attachment 11 – Example No Further Action Letter .............................................................................. 59
Attachment 12 – Example Settlement Agreement .................................................................................. 61
Attachment 13 – Example Compliance Order ........................................................................................ 68
Attachment 14 – Example Notice of Non-Compliance .......................................................................... 72
XV. History and Amendments ................................................................................................................ 75

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Enforcement Procedures and Penalty Manual
I. Definitions

As used in this manual, the terms below shall have the following meanings:

1) ACOMP – Annual compliance certification.
2) AQP - the Air Quality Program of the Southern Ute Indian Tribe.
3) Area of Concern – issues having the potential to lead to non-compliance with the CAA
if left unaddressed by a source.
4) BACT – Best Available Control Technology.
5) BEN - the EPA’s financial model that assesses the economic benefit a source may have
gained from a violation.
6) CAA - Clean Air Act.
7) Case - the facts involved and parties responsible for violation(s) charged in a Compliance
Advisory or a Notice of Violation.
8) Compliance Advisory – an informal enforcement pathway to notify a source of alleged
violations, request submittals and actions of the source, and may propose a compliance
schedule.
9) Compliance Order - the formal Settlement Agreement between the recipient of a
Compliance Advisory or Notice of Violation and the Tribe, resolving the instance of
noncompliance.
10) Consent Decree – an agreement or settlement to resolve a dispute between two parties to
ensure adherence to regulatory laws.
11) CMS – Compliance Monitoring Strategy.
12) Economic Benefit – cost savings associated with delayed or avoided environmental
expenditures.
13) Environmental Commission - the Southern Ute Indian Tribe/State of Colorado
Environmental Commission established under the IGA through Federal, State and Tribal
law which is empowered to establish rules and regulations for the Reservation Air
Program and to review appealable administrative actions taken by the Tribe.
14) EPA or U.S. EPA - the United States Environmental Protection Agency.
15) FRV – EPA Federal Reportable Violations.
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16) Gravity Component – in penalty calculations the actual or possible harm a violation
caused, the importance to regulatory schemes, and the size of the violator.
17) HAP – Hazardous Air Pollutants also known as toxic air pollutants.
18) HPV – EPA High Priority Violations.
19) ICA – Illegal Competitive Advantage.

20) ICIS – EPA’s Integrated Compliance Information System.
21) IGA - the Intergovernmental Agreement Between the Southern Ute Indian Tribe and the
State of Colorado Concerning Air Quality Control on the Southern Ute Indian
Reservation.
22) Inspector - a duly authorized representative, formally entitled Air Quality Compliance
Specialist, of the Tribe charged with conducting inspections and determining the
compliance status of sources. The inspector may also provide compliance assistance to a
source in appropriate situations.
23) LAER – Lowest Available Emissions Reduction.
24) MACT – Maximum Achievable Control Technology is a pollution control standard.
25) Manual - this Environmental Procedures and Penalty Manual.
26) MDRs – Minimum Data Requirements for reporting compliance and enforcement actions
for CAA stationary sources in the EPA’s ICIS database.
27) Notice of Non-Compliance – Notice of Non-Compliance is a notice issued by the Tribe
to a source to initiate a formal enforcement action for non-compliance with the terms of a
settlement agreement and stipulated final compliance order.
28) NOV - Notice of Violation is a formal enforcement pathway.
29) NSPS - New Source Performance Standards are uniform emission standards, as outlined
in 40 CFR Subpart 60.
30) NSR – New Source Review is a permit process that applies to the construction and
operation of new and modified stationary.
31) Penalty - the dollar value of an assessment calculated for a violation.
32) Pollution Prevention - a practice which reduces any of the following: the use of any
hazardous substance; the amount of any pollutant; a pollutant or contaminant prior to
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recycling, treatment, or disposal, or; the hazards to public health and the environment
associated with the use.

33) PSD - Prevention of Significant Deterioration is an EPA permitting program to restrict
emissions from new or modified major sources of air emissions in places where air
quality meets or exceeds primary and secondary National Ambient Air Quality Standards.
34) Regulations - those regulations duly adopted by the Commission as part of the
Reservation Air Program.
35) Reservation Air Code (RAC) - the Southern Ute Indian Tribe/State of Colorado
Environmental Commission’s Reservation Air Code.
36) Reservation Air Program - the Commission-adopted air quality programs that are
applicable to all lands within the exterior boundaries of the Southern Ute Indian
Reservation.
37) Request for Information – a formal written request for information related to activities
subject to the Clean Air Act under Chapter 114 of the Act.
38) SEP - Supplemental Environmental Project, an environmentally beneficial expenditure or
activity undertaken by a source to mitigate some or all of a civil penalty in accordance
with guidelines in this manual.
39) Settlement Agreement - the Settlement Agreement or express terms, mutually agreed
upon in writing, between the recipient of a Compliance Advisory or Notice of Violation
and the Tribe, resolving the instance of noncompliance.
40) Settlement Agreement Proposal - the written initial offer by the Tribe proposing terms
and conditions for resolution of alleged Clean Air Act violations.
41) Source - any building, structure, facility or installation which emits or may emit any
regulated air pollutant.
42) Tribe - the Southern Ute Indian Tribe.
43) Violation - any event of noncompliance by a source with the RAC or regulation enforced
by the Tribe.
44) Written Warning - a written notification to the source that a violation was documented,
and that further recurrence could result in an enforcement action.

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Enforcement Procedures and Penalty Manual
II. Introduction

The Southern Ute Indian Tribe Environmental Programs Division Air Quality Program
(AQP) is responsible for administering the air quality programs that encompass the Reservation
Air Program as part of the Southern Ute Indian Tribal Council-delegated responsibility to carry
out the Tribe’s obligations under the Intergovernmental Agreement Between the Southern Ute
Indian Tribe and the State of Colorado Concerning Air Quality Control on the Southern Ute
Indian Reservation, dated December 13, 1999.
The AQP strives to protect and improve air quality through a comprehensive air quality
program for the benefit of the health and welfare of Southern Ute Indian Reservation residents.
The Reservation Air Program is intended to reflect the environmental, economic, geographic and
cultural interests of the Tribe in a manner that is compatible with Colorado air quality goals.
The AQP enforces the Reservation Air Code (RAC) fairly and consistently, initiating
enforcement actions against tribal-permitted sources commensurate with the magnitude of
noncompliance. The traditional tools of administrative, civil, or criminal (through referrals to
EPA) enforcement actions and penalties will be combined with approaches which emphasize
problem-solving and creative settlements to achieve positive environmental outcomes.
The AQP will use a full range of enforcement options to achieve prompt compliance and
deter noncompliance or regulatory avoidance. Where a source in noncompliance has achieved a
distinct economic advantage from noncompliance, the AQP will calculate penalties sufficient to
offset the economic benefit gained by the source.
This manual is for information purposes and internal tribal guidance. It does not create
any enforceable rights or obligations. Although it does not expect to or plan on doing so, the
Tribe, in its sole discretion, reserves the right to take actions that may be inconsistent with this
manual. Also, the Tribe may choose, at its discretion, not to pursue an enforcement action if the
litigation risk outweighs the benefit of taking such action. Examples of litigation risk include
evidentiary problems, adverse legal precedent, or an indication an arbitrator is prepared to
recommend a lower penalty.

III. Goals

The goals of this Enforcement Procedures and Penalty Manual are to:
•

Assure public health of the Reservation residents and environmental protection by
ensuring the regulated community’s compliance with the RAC.

•

Protect ecosystems and continually strive to improve the Tribal air shed.

•

Provide fair, equitable, and consistent enforcement responses to all tribalpermitted sources in noncompliance.

•

Provide timely resolution of enforcement actions.

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•

Promote environmental stewardship and deter noncompliance.

•

Encourage settlement negotiations and minimize litigation and prosecution of
sources in noncompliance.

•

Ensure uniform evaluation of enforcement cases and application of the U.S.
EPA’s High Priority Violator (HPV) policy.

IV. Authority

The Tribe conducts compliance inspections and initiates enforcement actions under several
authorities outlined in the RAC including:

1. Inspection and Information Collection

The authority for a Tribal Air Quality Compliance Specialist (inspector) or other
authorized representative of the Tribe to enter a facility to inspect equipment and supporting
compliance demonstration records, collect data, and sample for the purposes of assuring
compliance with applicable requirements are contained in RAC § 1-105 and § 2-110(9)(b).

2. Enforcement Actions

The authorities for civil enforcement, compromise, and settlement of violations are
contained in RAC § 1-104 and RAC § 2-121. The EPA will exercise criminal enforcement
jurisdiction on all lands within the Reservation boundaries for violations of the RAC in
accordance with the Memorandum of Agreement between the Southern Ute Indian Tribe and the
United States Environmental Protection Agency Region 8 Concerning Criminal Enforcement
Procedures for Clean Air Act Violations on the Southern Ute Indian Reservation (RAC § 2121(4)).

3. Penalties

The authority for assessing civil penalties or filing suit to recover damages for RAC
violations is RAC § 2-121(2).

V. Enforcement Screening

Enforcement screening is the process whereby potential violations identified by the Tribe
during a compliance evaluation are reviewed to determine: 1) if an enforcement response is
needed, 2) if a violation has occurred, identification of the factors affecting the severity of the
violation, and 3) the appropriate response and enforcement pathway. The Tribe’s AQP staff, and
when appropriate, the Tribe’s legal counsel, will review all documentation to determine whether
there is a sufficient basis to conclude a violation has occurred and whether further investigation
of an alleged violation is necessary.

1. Enforcement Evaluation

In determining the appropriate response, consideration is given to:
•

The nature of the alleged violation(s):

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a) Emission Standards – Did any exceedances of an emission standard result in
potential or actual emissions to the atmosphere?
b) Pollutant type – Did potential or actual emissions to atmosphere include a
hazardous air pollutant?
c) Monitoring – Was required monitoring of an emission unit or source not
performed?
d) Recordkeeping and Reporting – Are records inadequate to demonstrate
compliance or is a report late or deficient?
e) Pollution Control Equipment – Was any pollution control device required by a
tribal or federal regulation or permit not installed, not used during normal
operations, bypassed, or rendered inoperable?
f) Compliance Orders, Consent Decrees or other Enforceable Compliance
Schedules – Is there an alleged violation(s) of an existing, enforceable order,
decree or schedule?
g) The Size of the Source – Is the source considered a large facility or operator?
h) Other – Are there any additional extenuating circumstances relating to the
alleged violation(s)?

•

The duration of the alleged violation(s):
a) Frequency – Is the alleged violation(s) an isolated or recurring event?
b) Impact on Public Health and the Environment - Did the alleged violation(s)
pose a potential or actual threat to public health or the environment?
c) Cooperation – Is the source responsive, cooperative, and taking immediate
remedial steps to correct the alleged violation(s)?
d) Compliance History – Is the source in chronic noncompliance?

2. Enforcement Responses

If, after review and any additional investigation or subsequent information requests from
the source, the Tribe determines that no violation has occurred, no further action will be taken
and the source will be notified in writing (reference attachment 11). However, if after review
and additional investigation, the Tribe determines a violation has occurred, the Tribe will take
one of the following actions:
•

Issue a Written Warning (reference attachment 8), if appropriate, to the source
with documentation of the warning placed in the case file with no additional
enforcement action taken;

•

Issue a Compliance Advisory (reference attachment 9) identifying the alleged
violations and initiating the informal enforcement process, with penalties and a
Settlement Agreement Proposal, in consultation with the AQ Program Manager
and the Tribe’s legal counsel;

•

Issue a Notice of Violation (reference attachment 10) summarizing the alleged
violations and initiating the formal enforcement process in consultation with the
AQ Program Manager and the Tribe’s legal counsel; or
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Enforcement Procedures and Penalty Manual
•

Refer the case to the EPA for criminal enforcement in accordance with the
Intergovernmental Agreement Between the Southern Ute Indian Tribe and the
State of Colorado Concerning Air Quality Control on the Southern Ute Indian
Reservation and the Memorandum of Agreement Between the Southern Ute Indian
Tribe and the U.S. Environmental Protection Agency Region 8 Regarding
Criminal Enforcement of the Clean Air Act within The Exterior Boundaries of the
Southern Ute Indian Reservation (RAC § 2-121(4)).

VI. Enforcement Pathways

The Tribe will use a variety of enforcement pathways to achieve a maximum degree of
compliance with the RAC. Based on the findings of a compliance evaluation and any subsequent
communications with a source, the Tribe may determine it is appropriate to resolve the violations
through either the informal settlement process or through formal enforcement action. The Tribe
will attempt to resolve the majority of enforcement actions informally.
The Tribe's actions will be guided by this manual and the Memorandum of Agreement
between the Southern Ute Indian Tribe and the U.S. Environmental Protection Agency Region 8
Regarding Criminal Enforcement of the Clean Air Act within The Exterior Boundaries of the
Southern Ute Indian Reservation.

1. Informal Process

The Tribe’s informal resolution process is more expeditious than the formal process and
may result in the assessment of lower penalties. The Tribe provides an opportunity for the
informal resolution of enforcement actions through the following steps and procedures:
a. No Further Action Letter
During the course of an inspection or investigation, additional information provided by a
source or further review of compliance records may show that while initially a particular issue
may have been evaluated for non-compliance, it was determined that no violation occurred and
no further action is necessary by the Tribe. The Tribe may issue a written No Further Action
determination in such instances advising the source that the issue has been resolved.
b. Area of Concern
The Tribe may issue an Area of Concern to provide the source notification of potential
compliance issues identified during an inspection. An Area of Concern is appropriate for
insignificant administrative permit issues, inconsequential issues that can be resolved quickly by
the source, and issues that are not violations but have the potential to become violations if left
unaddressed by the source. An Area of Concern is not considered a violation.
c. Written Warnings
The Tribe has the discretion to consider issuing a Written Warning to noncompliant
sources for situations involving minor violations that have been resolved by a source. A Written
Warning may not be appropriate when the source has a history of similar noncompliance or has
demonstrated a pattern of noncompliance. A Written Warning may only be issued when there are
three or less minor violations associated with the current inspection or investigation.

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d. Compliance Advisory
The Tribe issues a Compliance Advisory to provide notice of alleged minor and
moderate, but not major, violations to a source. A Compliance Advisory lists the specific alleged
violations and includes a summary of findings. A Compliance Advisory may also notify a source
that additional investigation may be required, outline any submittals or actions required of the
source, and may propose a compliance schedule for correction of the violations.
A Compliance Advisory invites the source to submit counter-positions to alleged
violations or information supporting the source’s conclusion to the AQP. The Tribe will issue a
No Further Action Letter, after internal review, for any issues documented during a compliance
evaluation that are not deemed violations. A Compliance Advisory is also used to schedule a
Compliance Advisory Meeting to discuss the alleged violations.
Finally, a monetary penalty and Settlement Agreement for alleged violations described
in a Compliance Advisory may or may not be pursued by the Tribe. At any point, the Tribe may
seek formal enforcement action, depending on the type of violation and the response by the
source to the Compliance Advisory.
e. Compliance Advisory Meeting
A Compliance Advisory Meeting provides an opportunity for the source to discuss both
disputed and non-disputed alleged violations, pathways to resolve alleged violations, and any
other relevant matters. The source may present information not previously available to the Tribe
and discuss appropriate ways to correct the deficiencies. The meeting may also serve as a forum
for establishing mutually agreed-upon compliance schedules and may include discussion of the
administrative process to be used to resolve the Compliance Advisory, including informal
enforcement settlement discussions or formal enforcement action initiation.
Although this meeting is informal, source representatives may include consultants and
legal counsel, at the source’s election. The Tribe will be represented by the Enforcement
Coordinator and Air Quality Compliance Specialist(s) and in appropriate cases, by the AQP
Manager and legal counsel. If a source has questions regarding the Tribe’s anticipated
representation at a Compliance Advisory Meeting, or otherwise in relation to the meeting, those
questions may be directed to the Enforcement Coordinator.
f. Settlement Agreement
The Tribe may use a Settlement Agreement, which is a written mutual agreement
between the Tribe and a source, to resolve informal enforcement actions. The Tribe, however,
will only enter into a Settlement Agreement when the agreement enables the Tribe to achieve its
enforcement objectives. The terms of a Settlement Agreement are mutually agreed upon between
the Tribe and a source and may require: (1) corrective actions to resolve an alleged violation(s);
(2) amendment of the source’s air permit authorizations; (3) compliance schedules; (4)
negotiated monetary penalty settlements; (5) stipulated penalties for violations of any
compliance requirements in a Settlement Agreement; and (6) remedial actions or requirements
that go beyond the nature of the violations to mitigate any environmental damage caused by the
violations.

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2. Formal Process

The decision to resolve an alleged violation through the formal enforcement process will
usually be based on: (1) an inability of the Tribe and source to resolve the matter through the
informal process; (2) the seriousness or repetitive or continuing nature of the noncompliance; or
(3) failure or refusal by a recipient to return to compliance after entering into a Settlement
Agreement. The decision whether to initiate a formal enforcement process will be made by the
Tribe, in its sole discretion.
Formal enforcement actions may include any of the following:
a. Notice of Violation (NOV)
The Tribe issues an NOV letter to communicate alleged violations to a source. As with
the Compliance Advisory, the NOV includes a summary of findings and lists the specific alleged
violations at issue. The NOV letter will also establish the date and time for the NOV conference,
described below.
b. Notice of Violation (NOV) Conference
At the NOV conference, the Tribe meets with the source to discuss the supporting
information, merits and arguments relating to the alleged violations. The source may, at its
election, also provide certain data, information, and its arguments to the Tribe in advance of the
NOV conference. If after internal review, any issues that are not deemed violations, the Tribe
will issue a No Further Action letter.
The Tribe is typically represented at an NOV conference by the Air Quality Compliance
Specialist(s), the Enforcement Coordinator, the AQP Manager, and the Tribe’s legal counsel.
Questions regarding the Tribe’s anticipated representation at an NOV conference, or otherwise in
relation to the conference, may be directed to the Enforcement Coordinator.
c. Settlement Agreement
The Tribe may use a Settlement Agreement, a written mutual agreement between the
Tribe and a source, to resolve formal enforcement actions. The Tribe, however, will only enter
into a Settlement Agreement when the agreement enables the Tribe to achieve its enforcement
objectives. The terms of a Settlement Agreement are mutually agreed upon between the Tribe
and a source and may require: (1) corrective or remedial actions to resolve an alleged
violation(s); (2) amendment of the source’s air permit authorizations; (3) compliance schedules;
(4) negotiated monetary penalty settlements; (5) stipulated penalties for violations of any
compliance requirements in a Settlement Agreement; and (6) remedial actions or requirements
that go beyond the nature of the violations to mitigate any environmental damage caused by the
violations.
A Settlement Agreement can serve as a resolution to an enforcement action. A
Settlement Agreement is the minimum level enforcement action required to resolve an HPV
enforcement case.
d. Notice of Non-Compliance
The Tribe issues a Notice of Non-Compliance to sources who are not in compliance with
their executed Settlement Agreement after a follow-up investigation report is completed and
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signed. The Notice of Non-Compliance includes a summary of the enforcement case and lists the
specific compliance requirements with which the source failed to comply. A Notice of NonCompliance may include a monetary penalty depending on the severity of the non-compliance.
e. Compliance Order
In addition to the Settlement Agreement pathway, the Tribe may use a Compliance Order
to resolve formal enforcement actions. A Compliance Order is a unilateral written directive from
the Tribe that may require the source to take one or more of the following actions: (1) to
immediately cease and desist any non-compliant activity under RAC § 1-106; (2) take corrective
or remedial actions to resolve the alleged violation(s); (3) comply with applicable statutory or
regulatory requirements by a specified deadline; (4) revise the source’s air permit authorizations;
and (5) pay penalties for violations that have occurred and specify penalty amounts to be
assessed for failure to comply with a mandatory compliance schedule.
The Compliance Order will describe the alleged violation(s), as determined by the Tribe,
provide the corresponding monetary penalty and any compliance requirements, and remind the
source of its RAC § 1-107 appeal rights. The Tribe’s legal counsel will review the Compliance
Order for legal and factual adequacy before its issuance. It should be noted that the penalty
assessment reflected in the Compliance Order will likely exceed any penalty assessment
contained in a Settlement Agreement proposal and a documented violation of a Compliance
Order carries the potential for civil or criminal enforcement.
f. Civil Court Enforcement Actions
The Tribe may refer a case to the Tribe’s legal counsel for civil enforcement action after
evaluating a potential enforcement case as outlined in Section IV. of this manual. Such referrals
normally will be based on a determination that the case is especially complex or that it is
otherwise beyond the resources of the AQP. If the Tribe’s legal counsel determines the case is
appropriate for filing in federal district court, the legal counsel will seek approval from Tribal
Council to initiate the action. Under the IGA, Public Law No. 108-336 and RAC § 1-107, the
Tribe and the Southern Ute Indian Tribe/State of Colorado Environmental Commission
(Commission) may enforce compliance with the Reservation Air Code including, if necessary,
through a civil action for declaratory or injunctive relief, or for other orders in aid of
enforcement, in the United States District Court for the District of Colorado. Once a case is filed
in court, the Enforcement Coordinator and Air Quality Compliance Specialist(s) will assist the
Tribe’s legal counsel as requested.
g. Criminal Enforcement Actions
The EPA will exercise criminal enforcement jurisdiction over any persons on all lands
within the Reservation boundaries for violations of the RAC in accordance with the
Memorandum of Agreement between the Southern Ute Indian Tribe and the United States
Environmental Protection Agency Region 8 Concerning Criminal Enforcement Procedures for
Clean Air Act Violations on the Southern Ute Indian Reservation (RAC § 2-121(4)).

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VII. Violation Categorization

The Tribe will evaluate the significance of alleged violations during the screening process
as outlined in Section V. and the Violation Categorization Matrix in Attachment 2 of this
manual. Each alleged violation will be categorized:

1. Minor Violations

Minor violations are generally administrative or clerical in nature and a source will be
given an opportunity to come into compliance. Minor violations, at a minimum, will result in the
issuance of either a Written Warning or Compliance Advisory and Compliance Advisory
Meeting as described in Section VI.(1) of this manual. In some cases, minor violations may
require further enforcement action beyond issuance of a Written Warning or Compliance
Advisory without monetary penalty. For instance, further action may be required if a source
receives a Written Warning or Compliance Advisory for the same violation three times within
the most recent five-year period, including any current notification for an alleged violation, or if
a source fails to address or correct the minor alleged violation. Decisions about whether to
initiate formal enforcement action for initial or repeat minor violations remain at the discretion of
the Tribe. A partial list of violations the Tribe considers to be minor violations is included in
Attachment 2 of this manual.
If the Tribe determines a Settlement Agreement is necessary to resolve an informal or
formal enforcement action for one or more minor violations, a Settlement Agreement Proposal
will be sent to the source along with the Compliance Advisory Meeting or the Notice of
Violation Conference, including a monetary penalty. The Settlement Agreement Proposal will
outline the Tribe’s authority to assess monetary civil and economic benefit penalties under the
RAC and the Settlement Agreement will propose the terms upon which the Tribe would be
willing to resolve the violations. The final terms contained in the Settlement Agreement Proposal
will be mutually agreed upon between the Tribe and the source during the Compliance Advisory
Meeting or the Notice of Violation Conference.
The Settlement Agreement Proposal will specify the deadline for the source to consider
and either accept or reject the Settlement Agreement Proposal. In the event the source accepts the
Tribe’s Settlement Agreement Proposal, the Settlement Agreement will not be resolved until the
source signs and returns the Settlement Agreement Proposal, pays the civil and economic benefit
penalty amounts to the Tribe, and fulfills all of the technical terms and conditions of the
Settlement Agreement. Resolution of an informal or formal enforcement action through a
Settlement Agreement will not be deemed an admission of liability by the source, but will be
considered a part of the source’s compliance history for any purpose for which such history is
relevant under the RAC.
If, as part of an informal enforcement action, no response is received from the source
after the deadline specified in the Settlement Agreement Proposal, or a Settlement Agreement
cannot be reached, the Tribe shall deem the Settlement Agreement offer rejected and may initiate
formal enforcement action. An NOV will be issued after the end of the period specified in the
Settlement Agreement Proposal and will establish a date and time for a required NOV
conference. Any resulting Compliance Order will not contain a reduced civil penalty in
consideration of early settlement or cooperation.
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The Tribe may amend the initial proposed settlement if additional information or
considerations are provided by the source. The amended settlement proposal will specify the
time period and subsequent deadline which the source has to consider and either accept or reject
the proposed settlement. If no response is received from the source within the specified time
frame, the proposed settlement will be deemed rejected. If the source rejects the settlement
proposal, or the Tribe deems that the source has rejected the settlement proposal, the Tribe will
initiate formal enforcement action.

2. Moderate Violations

Moderate violations are violations that are not considered minor violations and which
have the potential to cause harm to public health, safety or welfare, or to the environment and
constitute more than a small deviation from the requirements of the RAC, a permit, or order.
Moderate violations, at a minimum, will result in the issuance of either a Compliance Advisory
or a Notice of Violation and scheduling of either a Compliance Advisory Meeting or NOV
conference as described in Section VI. of this manual. A partial list of violations that the Tribe
considers to be moderate violations are included in Attachment 2 of this manual. Moderate
violations must not meet the criteria for enforcement under the EPA’s HPV policy.
If the Tribe determines a Settlement Agreement is necessary to resolve an informal or
formal enforcement action for a moderate violation, a Settlement Agreement Proposal with the
date for a Compliance Advisory Meeting or NOV Conference will be sent to the source. The
letter will outline the Tribe’s authority to assess monetary civil and economic benefit penalties
under the RAC and the Settlement Agreement Proposal will propose the terms upon which the
Tribe would be willing to resolve the violation. The final terms contained in the Settlement
Agreement Proposal will be mutually agreed upon between the Tribe and the source during the
Compliance Advisory Meeting or NOV Conference.
The Settlement Agreement Proposal will specify the deadline for the source to consider
and either accept or reject the Settlement Agreement Proposal. In the event the source accepts the
Tribe’s Settlement Agreement Proposal, the Settlement Agreement will not be resolved until the
source signs and returns the Settlement Agreement Proposal, pays the civil and economic benefit
penalty amounts to the Tribe, and fulfills all of the technical terms and conditions of the
Settlement Agreement. Resolution of an informal or formal enforcement action through a
Settlement Agreement will not be deemed an admission of liability by the source, but will be
considered a part of the source’s compliance history for any purpose for which such history is
relevant under the RAC.
If, as part of an informal enforcement action, no response is received from the source
after the deadline specified in the Settlement Agreement Proposal, or a Settlement Agreement
cannot be reached, the Tribe will deem the settlement offer rejected and may initiate formal
enforcement action. An NOV will be issued after the end of the period specified in the
Settlement Agreement Proposal and will establish a date and time for a required NOV
conference. Any resulting Compliance Order will not contain a reduced civil penalty in
consideration of early settlement or cooperation.

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Enforcement Procedures and Penalty Manual

The Tribe may amend the initial proposed settlement if additional information or
considerations are provided by the source. The amended Settlement Agreement Proposal will
specify 10 business days during which the source may consider and either accept or reject the
proposed settlement, and if no response is received from the source within that time, the
proposed settlement will be deemed rejected. If the source rejects the Settlement Agreement
Proposal, or the Tribe deems that the source has rejected the Settlement Agreement Proposal, the
Tribe will initiate formal enforcement action.

3. Major Violations

Major violations are those violations that are continuing in nature, repeat violations, or
that are otherwise deemed to be a substantial threat, result in actual harm to the public or the
environment, or both. The Tribe will consider all violations meeting the criteria for enforcement
under the EPA’s HPV policy to be major violations. Major violations, at a minimum, will result
in the issuance of a NOV and scheduling of an NOV Conference. A partial list of violations the
Tribe considers to be major violations are included in Attachment 2.
The Tribe will send the source a NOV and a Settlement Agreement Proposal. The NOV
will outline the Tribe’s authority to assess monetary civil and economic benefit penalties under
the RAC. The Settlement Agreement Proposal will propose the terms upon which the Tribe
would be willing to resolve the violation. The Settlement Agreement Proposal will specify the
deadline for the source to consider and either accept or reject the settlement proposal.
In the event the Tribe and the source reach a settlement, the terms will be transcribed in a
final Settlement Agreement and signed by the source and the appropriate tribal representatives.
The Settlement Agreement will become binding only after both parties have signed it. Once the
terms have been met, compliance demonstrated, and penalties paid, the agreement may then be
considered concluded. In addition, resolution of a violation through the Settlement Agreement
process is not deemed an admission of liability by the source, except where otherwise agreed to
during the negotiation process, but will constitute a part of the source’s compliance history for
any purpose for which compliance history is relevant under the RAC.
In the event that the source rejects either the NOV Conference or settlement offer, or if
the Settlement Agreement process does not result in prompt resolution of the violations, the
Tribe will proceed with the formal enforcement process including the issuance of a unilateral
directive from the Tribe in the form of a Compliance Order or referral to the Tribe’s legal
counsel for civil court enforcement action. Any resulting Compliance Order will not contain a
reduced civil penalty in consideration of early settlement or cooperation. All criminal matters
will be referred to the EPA in accordance with the Memorandum of Agreement between the
Southern Ute Indian Tribe and the United States Environmental Protection Agency Region 8
Concerning Criminal Enforcement Procedures for Clean Air Act Violations on the Southern Ute
Indian Reservation.

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Enforcement Procedures and Penalty Manual
VIII. Federally-Reportable Violations (FRV)

The FRV policy outlines the types of violations that enforcement agencies are to report to
the EPA. The FRV are limited to those Clean Air Act programs with federally enforceable
requirements including NSPS, NESHAP, MACT, NSR, PSD, EPA approved SIP, specific to:
•
•

•
•

Title V Major Sources: Major sources as defined in CAA 501(2);
SM-80 Sources: Minor sources that have taken an enforceable limit to remain
minor sources, called synthetic minor sources, that emit or have the potential to
emit (PTE) at or above 80 percent of the Title V major source threshold;
Sources included in an alternative CAA Stationary Source Compliance
Monitoring Strategy (CMS) plan;
Any source at which a HPV has been identified.

Examples of source FRV include the following:
•
•

•
•
•
•

Violations of any emission limitation, emission standard, or surrogate parameter
Failure to maintain reports and records as required by the permit such as
o Continuous emissions monitoring
o Malfunctions
o Excess emissions
o Semi-annual and periodic monitoring
Failure to timely test (performance test)
Failure to timely report ACOMP
Failure to construct/operate equipment in accordance with permit conditions
Failure to obtain or maintain permit (e.g. expired)

A FRV is to be reported within 60 days of the determination and linked to a Case File in
ICIS-Air. The Tribe may elect to identify the Case File as “enforcement sensitive” regarding
legal constraints or enforcement strategies. In addition, a formal notice of violation is a
Minimum Data Requirement (MDR) that is to be reported in the Enforcement Action Module of
ICIS-Air.

IX. High Priority Violations (HPV)

The Tribe adopts and incorporates by reference the U.S. Environmental Protection
Agency’s Timely and Appropriate Enforcement Response to High Priority Violations – Revised
2014. In 2014, the EPA revised enforcement response policy guidance for HPV, which are
significant to human health, the environment, and for the maintenance of strong CAA programs.
As a subset of FRV, the policy applies to major sources, or minor sources subject to a CMS plan.
The Policy is at: https://www.epa.gov/sites/production/files/201501/documents/hpvpolicy2014.pdf

1. HPV Applicability Determination

If the Tribe identifies a violation during an inspection (or as the result of self-reporting),
the Tribe will examine the facts to determine if it fits one of the following six general criteria:

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Enforcement Procedures and Penalty Manual
Criterion 1 – Failure to obtain a NSR permit

Criterion 2 – A violation of any federally enforceable emission limitation, standard, or
operating parameter pursuant to CAA Title I or equivalent FIP or TIP provisions
Criterion 3 – A violation of any emission limitation, standard, or operating parameter
surrogate for emissions in NSPS Part 60
Criterion 4 – A violation of any emission limitation, standard, or operating parameter
surrogate for emissions in NESHAP Part 61 and 63
Criterion 5 – A violation that involves federally enforceable work practices, testing
requirements, monitoring, recordkeeping, reporting, effecting enforcement or compliance
Criterion 6 – Any other violations an enforcement agency warrants even if the duration
is less than seven days

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Enforcement Procedures and Penalty Manual

Figure 1: HPV Applicability Determination Flow Chart
Is HPV Policy
applicable?

Violation occurred at:
1. A major source or plan
2. A minor or area source with a
CMS plan

Yes

No

Does violation fit within
six criteria?

No

Final decision based on
all factors

1. Failure to obtain a NSR permit,
or install BACT / LAER
2. Violation of CAA Title I Part C
or D emissions or operating
parameter requirements for at
least 7 days
3. Violation of NSPS emission or
operating parameter
requirement for at least 7 days
4. Violation of NESHAP emission
or operating parameter
requirement for at least 7 days
5. Work practice, testing,
monitoring reporting violation,
effecting a compliance
determination
6. Any other violation identified by
the enforcement agency (caseby-case)

These factors may be discretionary
and subject to mutual agreement with
the Tribe and EPA.

No

No
HPV

HPV

18

Yes

Yes

Enforcement Procedures and Penalty Manual
2. HPV Resolution Timelines

HPV enforcement cases must meet specific timelines for resolution. The date of the
initial identification of a violation, Day Zero, is the earlier of either (1) the date the agency has
sufficient information to determine that a violation occurred or (2) 90 days after the compliance
monitoring activity that first provides information indicating a violation. At this point, the AQP
must record the HPV in ICIS-Air. After the case file is saved, it should be linked to the
Discovery Action(s). Other MDR’s for ICIS-Air include Addressing Action and Resolving
Action.
Appropriate resolution timelines for enforcement actions are calculated from Day Zero.
After 45 days, the AQP must advise a source of a violation. This may include a NOV. If the
initial timeline needs revision, a new assessment may be addressed with EPA, as long as it is
within 180 days.

3. Penalties

All civil penalties should be sufficient to achieve effective deterrence, recover economic
benefit, and reflect the seriousness (gravity) of the violation.
Figure 2: Appropriate Enforcement Response for HPV
The following figure presents the enforcement timeline as required by EPA’s HPV Policy:

Discovery
Action

HPV
Identification

Advise Source
Quickly

-90 days

Day Zero

45 days

HPV Addressed
or Case Mgmt
Plan Needed

180 days

Notes:
1.
2.
3.

A regularly scheduled EPA Region consultation should be held at least
quarterly.
The timeline applies to the agency initiating the action. Parallel actions and
lead changes may occur at any time.
Timeline may be extended in a complex case. Also, follow-up may be
necessary to complete the case or to monitor compliance schedule.

19

Case
Management
Plan Due

225 days

Case-Specific
Consultation
until Addressed

270+ days

Enforcement Procedures and Penalty Manual
X. Penalty Assessment Criteria

The Tribe has the authority to collect civil penalties under RAC § 2-121(2) for the
violation of any applicable requirement; any permit condition; any fee or filing requirement; any
duty to allow or carry out inspection, entry, or monitoring activities; or any regulation or orders
issued by the Tribe. RAC § 2-121(2) provides that:
•

Civil penalties or damages assessed, sought, or agreed upon by the Tribe shall be
appropriate to the violation; and

•

Penalties or damages shall be separately recoverable in an amount not to exceed
$10,000 per day per violation.

This manual is intended, in part, to provide guidance on how the Tribe will calculate the
gravity of the violation (the “gravity component”) and remove any significant economic benefit
(the “economic benefit component”) of noncompliance. The gravity component and the
economic benefit component are determined separately for each violation and then added
together to determine the preliminary deterrence amount. All calculated penalties will be
evaluated by the Tribe’s Air Enforcement Coordinator and when appropriate, the Tribe’s legal
counsel, to ensure the total monetary penalty amount does not exceed the statutory maximum.
Specific penalty calculation examples and methodologies are contained in the Southern Ute
Indian Tribe – Reservation Air Program, Compliance and Enforcement Penalty Calculation
Worksheet.

1. Calculating the Gravity Component

Once an alleged violation has been evaluated and categorized as described in Sections V.
(1) and VII. of this manual, objective factors consistent with the EPA’s Clean Air Act Civil
Penalty Policy will be evaluated and assessed as outlined below:
a. Actual or Potential Harm
i.
Actual or Potential Harm - A violation will be evaluated to determine whether
there has been a release to the atmosphere and will be categorized as either an
actual release or a potential release. Actual is defined as "existing in fact or
reality; not merely potential." Potential is defined as "existing in possibility;
capable of development into actuality."
ii. Amount of Pollutant - A violation will be evaluated to quantify the percent
above a permit or regulatory standard a pollutant was emitted or the total amount
of pollutant emitted above a permit or regulatory standard. This factor will only
be evaluated for actual violations of emission standards.
iii. Toxicity of the Pollutant - A violation will be evaluated for the toxicity of the
pollutant involved. Violations involving toxic pollutants regulated by a National
Emission Standard for Hazardous Air Pollutants or listed under Section 112(b)(1)
of the CAA will be considered more serious violations.
iv.
Sensitivity of the Environment - A violation will be evaluated to determine
sensitivity of the environment where the violation occurred. For example,
excessive emissions near a Mandatory Class 1 Federal Area (40 CFR Part 81)
may have substantially more impact on the environment. This factor will only be
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Enforcement Procedures and Penalty Manual
v.

used when evaluating Tribal Implementation Plan and New Source Performance
Standards cases only.
Length of Time a Violation Continues - A violation will be evaluated to
determine the length of time the violation continues uncorrected. The longer the
duration, the greater the risk of harm.

b. Importance to the Regulatory Scheme
i.
Work Practice Standards – A violation will be evaluated for the extent to which
it deviates from a work practice standard outlined in any Tribal permit or
applicable requirement.
ii. Reporting and Notification – A violation will be evaluated considering any
partial or full failure to provide a notification or report, submit a report or
notification by the specified timeframe, and/or submit an incomplete notification
or report required by any Tribal permit or applicable requirement.
iii. Recordkeeping – A violation will be evaluated considering any partial or full
failure to maintain records required by any Tribal permit or applicable
requirement.
iv.
Testing – A violation will be evaluated considering any partial or full failure to
conduct a performance test, or failure to conduct a performance test within any
required timeframe, or use of the proper test or reference method to complete a
performance test required by any Tribal permit or applicable requirement.
v.
Permitting – A violation will be evaluated considering any partial or full failure
to obtain any permit authorization or registration or partial or full failure to pay
any subsequent permit authorization or registration fees required by the
Reservation Air Code or other applicable requirement.
vi.
Emission Control Equipment – A violation will be evaluated considering any
partial or full failure to install, maintain, or operate a pollution control device
required by any Tribal permit or applicable requirement.
vii. Monitoring – A violation will be evaluated considering any partial or full failure
to install, maintain, or operate monitoring equipment required by any Triballyissued permit or applicable requirement.
viii. Administrative Orders – A violation will be evaluated to determine if it
constitutes a deviation from an existing Settlement Agreement, Compliance
Order, or any other Administrative Order.
ix.
Requests for Information - A violation will be evaluated considering any
incomplete or full failure to respond to CAA Section 114 requests for
information.
x.
Compliance Certifications - A violation will be evaluated considering any
partial or full failure to meet a compliance schedule deadline, submit a
notification or progress report within a specified timeframe, or submit a complete
notification or progress report required by any Tribal permit or applicable
requirement.
c. Additional Considerations
i.
Size of Source - A violation will be analyzed and assessed based on the size of
the company’s entire operations, not just the facility in violation. A company’s net
21

Enforcement Procedures and Penalty Manual

worth or net current assets will be considered an adjusting factor when assessing
penalties.

ii.

Compliance History – The compliance history of a source will be considered
when evaluating a violation and assessing a monetary penalty. The Tribe will
check for and consider prior violations under all environmental statutes when
determining the amount of the adjustment to be made under this factor. Evidence
that a source has repeated a violation of a Tribal permit or applicable requirement
may indicate the source was not deterred by a previous enforcement response. In
determining the size of this adjustment, the Tribe will consider the following
factors:
Similarity of the violation in question to prior violations. A violation will
generally be considered "similar" if a previous enforcement response should
have alerted the source to a particular type of compliance problem. Some facts
indicating a similar violation are: 1) Violation of the same permit or permit
provision; 2) Violation of the same emissions standard; 3) Violations
involving the same emission units at a facility or source; 4) Violation of the
same Reservation Air Code or applicable requirement provision; or 5) A
similar act or omission.
•

The number of prior violations. For purposes of this section, a "prior
violation" includes any act or omission resulting in a Tribal, State, or Federal
enforcement response (Written Warning, Compliance Advisory, Notice of
Violation, administrative order, complaint, Consent Decree, consent
agreement, or administrative and judicial order) under any environmental
statute enforced by the Tribe unless subsequently dismissed or withdrawn on
the grounds that the owner or operator was not liable. It also includes any act
or omission for which the source has previously been given written
notification, however informal, that the regulating agency believes a violation
exists.
•

Time elapsed since the prior violation. Three or more violations in the
previous five years may result in an increase of the penalty amount up to 5%.

•

Source’s response to prior violations with regard to correcting the previous
problem and attempts to avoid future violations.
•

The extent to which the gravity component had already been increased in a
previous enforcement action due to a repeat violation.
•

d. Other Factors that Justice May Require
The AQP may recommend adjustment of the penalty amount, on a case-by-case basis,
upon a consideration of factors unique to the situation. This adjustment may result in an
increase or decrease of the penalty amount. For example, a downward adjustment may be
appropriate when an owner or operator inherits an enforcement action or poor compliance
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Enforcement Procedures and Penalty Manual

history as a result of purchasing an existing facility. The resulting penalty may not reflect the
compliance efforts of the new owner.
i. Willfulness and/or Negligence – The Clean Air Act is a strict liability statute for
civil actions, so that willfulness, or lack thereof, is irrelevant to the determination
of legal liability. However, this does not render the source's willfulness or
negligence irrelevant in assessing an appropriate monetary penalty. A violation
will be assessed to determine the degree of willfulness or negligence, if
applicable, considering the following factors:
The degree of control the source had over the events constituting the
violation.
•

•

The foreseeability of the events constituting the violation.

The level of sophistication within the industry in dealing with compliance
issues or the accessibility of appropriate control technology (if this
information is readily available). This should be balanced against the
technology-forcing nature of the statute, where applicable.
•

The extent to which the owner or operator in fact knew of the legal
requirement that was violated.
•

e. Mitigating Factors
The following objective factors have the combined potential to mitigate up to 30% of the
gravity component of a civil penalty:
i.

Voluntary and Complete Reporting or Disclosure of Noncompliance - The
voluntary and complete disclosure by a source of a violation in a timely manner
after the discovery of noncompliance may yield a reduction in the gravity
component of a penalty.

ii.

Prompt Correction of Environmental Problem - Full and prompt cooperation
with the Tribe to resolve an environmental problem following the self-disclosure
of a violation or discovery of a violation as the result of an investigation,
including, when appropriate, entering into a legally enforceable commitment to
undertake compliance and remedial efforts may yield a reduction in the gravity
component of a penalty.

iii.

Existence and Scope of Environmental Compliance Program or Audit - The
existence and scope of a regularized and comprehensive environmental
compliance program or environmental audit program may yield a reduction in the
gravity component of a penalty.

iv.

Ability to Pay - Consistent with the goal of providing fair and equitable treatment
of the regulated community, the Tribe will consider a source’s ability to pay a
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Enforcement Procedures and Penalty Manual

penalty, for both the gravity component and economic benefit components, when
assessing the preliminary deterrence amount.
The Tribe will not reduce a monetary penalty, even when a source proves
conclusively that it cannot afford to pay, in the following situations: 1) the source
refuses to comply with pollution control requirements; 2) the source cannot afford
to comply with pollution control requirements; or, 3) the source’s conduct was
egregious (e.g., willful violations, or violations that might have or actually
endangered lives).
If a source claims an inability to pay a penalty, the Tribe will first consider a
delayed payment schedule with interest as a first option. If the delayed payment
schedule with interest is not a viable option, the burden to demonstrate an
inability to pay, as with the burden of demonstrating the presence of any other
mitigating circumstances, rests with the source.
The source will demonstrate their inability to pay, by providing supporting
financial statements, using the EPA’s ABEL or INDIPAY computer models.
These models will be used to assist the Tribe in assessing an owner or operator’s
ability to afford compliance costs, cleanup costs, or civil penalties. If the source
fails to provide sufficient information, or the models do not demonstrate a
financial inability to pay, the Tribe will disregard this factor in adjusting the
monetary penalty.

v.

Early Settlement – The early resolution of an enforcement action may yield a
reduction in the gravity component of a monetary penalty.

vi.

Degree of Cooperation – The cooperation by a source in assisting the AQ
Compliance Specialists and AQ Enforcement Coordinator in gathering data and
supplying the necessary information to determine compliance with the
requirements may reduce the penalty.

2. Calculating the Economic Benefit Component

A cornerstone of the Tribe's civil penalty program is the recapture of the economic
benefit a source may have gained from illegal activity. Economic benefit penalties help to level
the economic playing field, preventing sources from obtaining an unfair financial advantage over
their competitors who made timely and necessary investments in environmental compliance.
Penalties serve as incentives to protect the environment and public health by encouraging the
adoption of pollution prevention practices that limit exposure to pollutant discharges.
Appropriate penalties help deter future violations by the source and by others similarly situated.
The economic benefit component focuses on the source's economic gain from
noncompliance. Economic gain from noncompliance may occur in three basic ways. It may
occur as a result of: 1) delays in necessary pollution control expenditures; 2) avoidance of
necessary pollution control expenditures; or 3) an illegal competitive advantage gained during
the period of noncompliance.
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Enforcement Procedures and Penalty Manual

a. Economic Benefit from Delayed and/or Avoided Costs
Each violation will be evaluated to determine if an economic benefit was gained from a
source’s noncompliance. When there is evidence that an economic benefit exists, based on
delayed or avoided costs, the AQP will estimate the value of the economic benefit and include
this amount in the proposed civil penalty under RAC § 2-121(2).
If the economic benefit is determined to exceed $10,000, the Tribe will use EPA’s BEN
model as the method for calculating economic benefit from delayed and avoided expenditures.
For economic benefit calculations of less than $10,000, or where the owner or operator will not
or cannot provide financial data in a timely manner, staff may make estimates based on available
resources, including their best professional judgment.
The BEN model uses several data variables, most of which contain default values. The
required variables include information about capital and non-capital costs, annual operation and
maintenance costs, and the dates for the period of noncompliance. The BEN model allows a
facility to provide actual financial data that may affect the civil penalty calculation. Finally,
methods other than the BEN model may be used to calculate economic benefit of
noncompliance, where the Tribe concludes that an alternative method provides more meaningful
results.
A necessary first step when making a preliminary determination of economic benefit is to
understand the costs avoided or delayed through noncompliance. A delayed cost is an
expenditure that, through current noncompliance, can be put off until sometime in the future. An
avoided cost is an expenditure not made, resulting in noncompliance. Examples of delayed costs
include, but are not limited to:
•

Failure to install equipment needed to meet emission control standards;

•

Failure to effect process changes needed to reduce pollution;

•

Failure to test where the test still must be performed; and

•

Failure to install required monitoring equipment.

Many types of violations enable a violator to avoid permanently certain costs associated
with compliance. Examples of avoided costs include, but are not limited to:
•

Failure to employ a sufficient number of staff;

•

Disconnecting or failing to properly operate or maintain existing pollution control
equipment;

•

Failure to adequately train staff;

•

Failure to establish or follow precautionary methods required by regulations or
permits;
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Enforcement Procedures and Penalty Manual
•

Removal of pollution equipment resulting in operational, or maintenance savings;

•

Disconnecting or failing to properly operate or maintain required monitoring
equipment; and

•

Operation and maintenance of equipment that the source failed to install.

b. Economic Benefit from Illegal Competitive Advantage
In some enforcement cases, the Tribe may determine that a source may have gained an
Illegal Competitive Advantage associated with noncompliance. The four categories of ICA are:
•

Source gains additional market share;

•

Source sells products or services prohibited by law;

•

Source initiates construction or operation before meeting regulatory authorization
requirements; and,

•

Source operates at higher capacity than it should have.

The EPA BEN model will be used, when appropriate, to estimate economic benefit
associated with an ICA. However, the BEN model does not include calculation methodologies to
estimate every scenario associated with an economic benefit gained from ICA. The Tribe will
use the EPA’s policy Identifying and Calculating Economic Benefit That Goes Beyond Avoided
and/or Delayed Costs (May 25, 2003) when calculating penalties involving an ICA that are not
addressed by the BEN model.
c. Considerations for Adjusting the Economic Benefit Penalty
The following factors may be considered by the Tribe when settling the total civil penalty
for an amount less than the economic benefit.
•

The economic benefit component represents an insignificant amount of the total
monetary penalty. The discretion to forego the economic benefit component is
generally limited to less than $5,000. Considerations for pursuing the economic
benefit component, even when considered an insignificant portion of the total
monetary penalty include: 1.) if the economic benefit component will have a
noticeable effect on the source’s competitive advantage or profits gained from
noncompliance; and 2.) if the gravity component is small and by itself, does not
provide adequate deterrence.

•

There are compelling public concerns that justice would not be served by taking a
case to trial;

•

It is unlikely, based on the facts of the particular case as a whole, the Tribe will be
able to recover the economic benefit in litigation; and
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Enforcement Procedures and Penalty Manual
•

The owner or operator has successfully documented an inability to pay the total
proposed civil penalty.

3. Voluntary Discovery, Disclosure, and Remediation of Violations

Sources that voluntarily discover, promptly disclose, and timely remediate violations of
federal environmental laws and regulations may qualify for penalty mitigation. The Tribe adopts
and incorporates by reference the U.S. EPA’s Incentives for Self-Policing: Discovery,
Disclosure, Correction and Prevention of Violations (commonly known as EPA’s “Audit
Policy,” found at 65 Fed. Reg. 19618 (April 11, 2000)). The Audit Policy is at
https://www.gpo.gov/fdsys/pkg/FR-2000-04-11/pdf/00-8954.pdf. Sources may enter audit
agreements with the AQP as a means of self-policing and potentially receive penalty mitigation
for violations discovered in the course of an audit, provided they meet all requirements of the
Audit Policy. Sources who wish to enter into an audit agreement with the AQP should notify the
AQP and submit an audit proposal so that sources will have the opportunity to independently
discover and disclose potential violations before those violations are discovered during a
compliance inspection or investigation. The audit proposal should include, at a minimum, the
following information:
•

What the source plans to audit (i.e. name of facility);

•

When the source plans to audit; and

•

The deadlines for reporting and correcting deviations

a. Interim Approach to Applying the Audit Policy to New Owners
Owners of newly acquired facilities (“new owners”) may also qualify for penalty
mitigation for violations that are voluntarily discovered, promptly disclosed, and timely
remediated at newly acquired facilities. The Tribe adopts and incorporates by reference the U.S.
EPA’s Interim Approach to Applying the Audit Policy to New Owners (commonly known as
EPA’s “Interim Approach,” found at 73 Fed. Reg. 44991 (August 1, 2008)). EPA’s Interim
Approach can be found at: https://www.gpo.gov/fdsys/pkg/FR-2008-08-01/pdf/E8-17715.pdf.
New owners may enter into audit agreements with the AQP as a means of self-policing and
potentially receive penalty mitigation for violations at their newly acquired facilities, provided
they satisfy the requirements of the Interim Approach. New owners seeking to enter into an audit
agreement with the AQP must do so within nine months of the acquisition closing date for newly
acquired facilities. New owners who wish to enter into an audit agreement with the AQP should
notify the AQP as soon as possible and submit an audit proposal so that sources will have the
opportunity to independently discover and disclose potential violations before those violations
are discovered during a compliance inspection or investigation. The audit proposal should
include, at a minimum, the following information:
•

What the source plans to audit (i.e. name of facility);

•

When the source plans to audit; and

•

The deadlines for reporting and correcting deviations (all violations must be
reported within nine months after the acquisition of a new facility)
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Enforcement Procedures and Penalty Manual
XI. SUIT/CO Environmental Commission
1. Notice of Enforcement Action

The AQP will provide notification of all final non-appealable civil enforcement actions to
the Environmental Commission, Tribal Council, and the State Liaison for the Environmental
Commission, at least annually. Information provided may include a summary of enforcement
actions (number of enforcement cases and type of enforcement actions) of the most recent fiscal
year.

2. Annual Update

An annual update on compliance and enforcement activities completed by the AQP will
be presented at an Environmental Commission meeting each Fiscal Year. This update will
present the status of compliance monitoring (inspections) with respect to the Compliance
Monitoring Strategy and summarize enforcement actions initiated by the AQP.

3. Administrative Appeal Procedures
a. Appealable Administrative Actions and Request for Hearing

Appealable administrative actions taken by the Tribe are subject to review in accordance
with the administrative appeal procedures contained in the Southern Ute Indian Tribe/State of
Colorado Environmental Commission’s Procedural Rules (RAC § 1-107).
b. Judicial Review
Any final order of the Commission that would be subject to appellate review if it were
made by the EPA Administrator, is subject to judicial review by the United States Court of
Appeals for the Tenth Circuit in accordance with Section 6 (1) of the Southern Ute and Colorado
Intergovernmental Agreement Implementation Act of 2004 (i.e., the Act of October 18, 2004,
Pub. L. No. 108-336, 118 Stat. 1354-56).

XII. Records Retention and Case Resolution Timelines
a. Enforcement Records Retention
The Tribe will retain compliance monitoring records consistent with EPA records policy.
For evaluations that lead to Settlement Agreements and civil administrative enforcement actions
including Compliance Orders, the Tribe will retain records 10 years after closure of the
enforcement file. For cases filed in district court that lead to civil judicial actions, or cases that
result in criminal referral to the EPA, the Tribe will retain records 20 years after the closure of
the case file.

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Enforcement Procedures and Penalty Manual
b. Case Resolution Landmarks and Target Timeline

Target Date*
90 days after the close of the on-site inspection
10 business days after email receipt of NOV
30 days after email receipt of NOV

4

Landmarks
Notice of Violation Issued
Notice of Violation Conference
Settlement Agreement with deferral
expires (as applicable)
Settlement Agreement offer expires

5

Penalty Payment

6

Notification of Compliance

7
8

Follow-up Investigation
Case Resolved

9

Notice of Non-Compliance

30 days after execution date of a Settlement
Agreement
90 days after effective date of Settlement Agreement
(unless renegotiated during NOV Conference)
Scheduled after NOC received
When compliance requirements are met and followup investigation report is signed
When compliance requirements are not met and a
follow-up investigation report is signed.

1
2
3

90 days after email receipt of NOV
(unless renegotiated during NOV Conference)

* Timelines may exceed these dates if additional records are requested during the course of the inspection or if the enforcement case is
complex.

XIII. Supplemental Environmental Project

In all enforcement settlements, sources will be required to achieve and maintain
compliance with all applicable regulations. In some instances, sources may receive some
monetary penalty relief resulting from their commitment to implement a Supplemental
Environmental Project. A SEP is a project that the source agrees to undertake in settlement of an
enforcement action that benefits either the environment or public health, or both, but the source
is not otherwise legally required to perform.
The Tribe’s sole interest in considering SEPs is to ameliorate the adverse public health
and environmental impacts of violations. SEPs are not intended to reward the source for
undertaking activities that are obviously in its economic self-interest. Therefore, although a SEP
may indirectly benefit a source, there must be no doubt that the primary beneficiary is the public
health or the environment. The Tribe may consider allowing a SEP if: (1) violations are corrected
through actions to ensure future compliance; (2) deterrence objectives are served by payment of
a monetary penalty, which must include the economic benefit accruing to the source for
noncompliance; and (3) there is an appropriate relationship between the nature of the violation
and the environmental benefits to be derived from the SEP.
The decision to accept a proposed SEP as part of a settlement is within the Tribe’s sole
discretion. Even though a project may appear to satisfy all of the provisions of this plan, the
Tribe may decide for one or more reasons that a SEP is not appropriate. Factors that could
influence such a decision include if the costs to the Tribe for reviewing or overseeing the SEP
are excessive, the provisions of a SEP are not enforceable, or the Tribe believes the source may
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Enforcement Procedures and Penalty Manual

not have the ability or reliability to complete the proposed SEP. The AQP Part 70 permitting,
compliance and enforcement program cannot accept SEP funds, nor can a SEP project fund
activities the Tribe is already required to perform pursuant to delegated regulatory authority.

1. SEP Basic Guidelines

A SEP will not be approved if the source is otherwise legally required to perform the
proposed activity. For example, a SEP must not include actions required by any federal, tribal,
state, or local law, regulation, administrative or court order or permit. A SEP cannot include
actions the source may be required to perform as injunctive relief, as part of a settlement or order
in another legal action, or by federal, tribal, state or local requirements.
There are two different types of SEPs, a first or third party SEP. A first party SEP is an
environmental project performed within a source’s own facility. A third party SEP is a monetary
donation for the implementation of an environmental project to an organization that the source is
not financially or legally affiliated with.
SEPs may be used to mitigate some or all of a civil penalty in accordance with the
following criteria:
1)
Neither a first or third party SEP may be used to offset the economic benefit
component of a monetary penalty. At the Tribe’s discretion, a SEP performed by a source for the
benefit of a third party may be approved to mitigate the gravity component portion of a civil
penalty;
2)
The cost of a SEP for the benefit of a first party will generally exceed the amount
of monetary penalty mitigation offered in exchange (see Section 3. Extent to Which a SEP Can
Mitigate a Penalty). For third party SEPs, the cost will generally equal the amount of monetary
penalty mitigation offered in exchange;
3)
Because deterrence objectives must be met, SEPs may only mitigate 80% of the
gravity portion of a civil penalty for first party SEPs. SEPs may be approved to mitigate up to
100% of the gravity portion of a civil penalty for third party SEPs;
4)
Sources are precluded from seeking or receiving any tax benefit or favorable tax
treatment associated with a SEP, including third party SEP donations; and
5)
All SEPs must result in improvements to the environment or reduce the total risk
burden posed to public health or the environment by the identified violations beyond what is
required by law.
SEPs are not intended to reward the source for undertaking activities that are obviously in
its economic self-interest (e.g., update or modernize a plant to become more competitive).
Therefore, as a general rule, SEPs will usually not be approved when they represent a “sound
business practice.” For example, capital expenditures or management improvement for which the
source, rather than the public, is likely to receive the substantial share of the benefits which
accrue from it will not be approved. The exception to this general rule is for a “pollution
prevention project.” Although such projects are viewed as sound business practice since they are
designed both to make production more efficient and reduce the likelihood of noncompliance,
they also have the advantage of potentially providing significant long-term environmental and
health benefits to the public.
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Enforcement Procedures and Penalty Manual

If a proposed SEP is to benefit a medium other than air quality, (e.g. water quality or
waste management and remediation), the Air Quality Program manager will consult with the
Environmental Programs Division Head and program managers before approval of the SEP.
The SEP should typically benefit the area or community adversely affected by the
violation, and consideration of projects with a geographic nexus to the violation are given
preference. The source may be required to notify the public of a SEP.

2. Categories of SEPs

The Tribe considers the following seven categories of projects for potential SEPs. Each
project will be closely scrutinized to ensure that all aspects of the project fulfill the legitimate
objectives of the Tribe’s SEP plan in all respects.
a. Pollution Prevention Projects
For the purposes of developing a SEP, a pollution prevention project is any project that
substantially reduces or prevents the generation or creation of pollutants through:
•

Source reduction - eliminating the source of pollution by changing industrial
processes or substituting less polluting fuels or less toxic raw materials in existing
processes;

•

Alternative/Renewable Energy, Energy Efficiency – application of measures
and technologies to reduce or eliminate dependency upon traditional resources.
Examples include, but are not limited to: wind, solar, biomass and geothermal
powered generation of electricity, ethanol-based (“E-85”) or bio-diesel fuels for
vehicles, and sustainable building engineering;

•

Waste minimization - conserving those materials that are sources of pollution;
this includes application of closed-loop processes or other resource-efficiency
measures;

•

In-process recycling – returning waste materials produced during a
manufacturing process directly to production within the same manufacturing
process using dedicated, fixed, and physically integrated equipment so that no
releases, including fugitive releases, occur;

•

Innovative recycling technologies - substantially reducing the discharge of
generated pollutants through innovative recycling technologies that keep the
pollutants out of the environment in perpetuity; and

•

Conservation - protecting natural resources through conservation or increased
efficiency in the use of energy, water or other materials. A specific example of
such a project that the Tribe encourages is an up-front capital investment in
energy efficiency improvements and reinvestment of the resulting cost savings
into a long-term green energy program either on-site or in a community-based
program, or a combination of both.
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Enforcement Procedures and Penalty Manual

In order for a project to meet the definition of pollution prevention, there must be an
overall decrease in the amount or toxicity of pollution released to the environment, not merely a
transfer of pollution among media.
b. Pollution Reduction Projects
A pollution reduction project is defined as a project that goes substantially beyond
compliance with permit or regulatory requirements to further reduce the amount of pollution
discharged into the environment. Where a pollutant or waste stream already has been generated
or released, a pollution reduction approach (recycling, treatment, containment, or disposal
techniques) may be appropriate, so long as it does not create an increased or adverse cross-media
impact on public health or the environment. Examples include: (1) a project that reduces the
discharge of pollutants through more effective end-of-pipe or stack removal technologies; (2)
improved operation and maintenance; and, (3) recycling of residuals for use as raw materials in
production off-site, thereby reducing the need for treatment, disposal, or consumption of energy
or natural resources.
c. Environmental Restoration and Protection Projects
The objective of an environmental restoration project is to repair damage done to the
environment beyond the need to remediate the damage done by the violation. Cross-media
projects are a preferred option for this type of project. Examples of approvable projects include:
(1) reductions in discharges of pollutants that are not the subject of the violation or the subject of
other regulatory requirements within an affected air basin or watershed; (2) development of a
conservation program or protection of habitat critical to the well-being of a species’ ecosystem;
and (3) purchase and management of an open space buffer zone to protect sensitive species or
drinking water supply and conservation easements.
Environmental restoration projects could also include, in appropriate circumstances,
projects that involve the remediation of facilities and buildings, provided such activities are not
otherwise legally required. This includes the removal or mitigation of contaminated materials,
such as contaminated soils, asbestos, contamination from the illegal manufacture of
methamphetamines, and leaded paint, which are a continuing source of releases or threats to
individuals.
d. Environmental Assessments
Two types of environmental assessment projects may be considered by the Tribe:
•

Pollution prevention assessments are independent, systematic reviews of
processes and operations conducted internally by a source. The goal of the
assessment is to identify opportunities to reduce the use, production, and
generation of hazardous and other pollutants; and

•

Environmental Management System (EMS) assessments are a systematic,
independent, and documented compliance and environmental management
practices verification process, conducted by a third party EMS auditor. The
auditor objectively obtains and evaluates evidence to determine whether an
entity’s EMS conforms to the EMS requirements which closely reflect the ISO
14001 criteria. This type of evaluation may identify the need for: a formal
32

Enforcement Procedures and Penalty Manual

corporate environmental compliance policy and enforceable procedures for
implementation of that policy; the need for planning processes as they pertain to
an EMS, such as hazard identification and risk assessments, environmental
programs, etc.; implementation and operation criteria including educational and
training programs for employees, communication activities, EMS documentation
requirements, operation and maintenance programs and in-plant and community
emergency plans; checking and corrective action criteria, including monitoring
and measurement systems, record keeping and reporting systems and internal
audit criteria; and management review activities.

These types of SEPs can only be approved where the source commits to provide the Tribe
with copies of all assessments and reports and commits to implement technically feasible and
economically reasonable steps identified in the assessments. If the source chooses not to
implement all recommendations in the assessment, it must submit a justification for not
implementing certain recommendations. Environmental audits that merely represent compliancefocused, general good business practices are not acceptable SEPs.
Any pollution prevention assessment or environmental management system development
conducted as part of a SEP should include a materials accounting component that estimates the
amounts of certain [or all] materials entering and exiting the facility.
The calculation of an appropriate mitigation for assessment projects will take place in
two phases. In the first phase, the source will receive monetary penalty mitigation for the cost of
undertaking the assessment. Upon completion of the assessment, the source may receive further
mitigation for implementation of activities recommended in the assessment, provided that such
activities meet all other requirements for a SEP described elsewhere in this plan and are
reviewed and approved by the Tribe. The SEP settlement shall establish a timeframe within
which the second phase must be completed, but generally no later than 24 months from the
effective date of the agreement. If the source opts not to complete the second phase, the balance
of the unpaid penalty becomes due and payable to the Tribe.
e. Environmental Education and Training
• Environmental education projects are intended to improve environmental
behavior, raise the public’s awareness of actions it can take to prevent pollution,
and promote environmental sustainability. Environmental education projects
increase public awareness and knowledge about environmental issues and provide
the skills necessary to make informed decisions and take responsible actions. The
Tribe will give priority to projects that include an action component providing
measurable and quantifiable outcomes. Education projects that focus on fostering
environmentally beneficial behavior using social marketing tools or that follow
National Guidelines for Excellence in Environmental Education (where
applicable) are preferred. The source must contract with an appropriate external
expert to develop and implement an environmental education project.
•

Environmental training projects are defined as the use of publications, broadcasts,
or seminars that underscore the importance of complying with environmental laws
or that disseminate technical information about the means of complying with
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Enforcement Procedures and Penalty Manual

environmental laws. These projects provide necessary training and technical
support to identify, achieve, and maintain compliance with applicable regulatory
requirements; avoid violations; and go beyond compliance by reducing the
generation, release or disposal of pollutants beyond legal requirements. Public
awareness projects may include: (1) sponsoring industry-wide seminars directly
related to correcting widespread or prevalent violations within an industry; or (2)
organizing a conference on pollution prevention solutions for compliance in a
particular sector. The source must contract with an appropriate external expert to
develop and implement an environmental training project. Environmental training
projects using social marketing techniques are encouraged.

f. Public Health
A public health project provides preventive, screening, diagnostic, therapeutic health
care, or education related to actual or potential threats to human health. This may include
epidemiological data collection and analysis, medical examinations of potentially at-risk or
affected persons, collection and analysis of blood/fluid/tissue samples, medical treatment, and
rehabilitation therapy.
g. Other Types of Projects
Facilities may propose other types of projects as long as those projects meet all additional
requirements of a SEP as described in this plan. Note: SEPs for research will only be allowed if
the study investigates innovative practical pollution prevention or reduction solutions. In
addition, the entity conducting the SEP must commit to implement the results of the study, as
feasible, and make available the technology or solution to other interested facilities.

3. Extent to Which a SEP Can Mitigate a Penalty

There are two steps in determining the extent to which a SEP can mitigate a monetary
penalty. The first step is to calculate the minimum portion of the penalty assessment that must be
collected in cash. The second step is to determine the amount of credit each dollar spent on the
SEP will receive against the penalty.
1.) Penalties are comprised of a gravity component and, when applicable, an economic
benefit component.
•

For a first party SEP, the SEP may generally be used to offset up to 80% of a civil
penalty assessed. There are exceptions for small businesses (defined as having
fewer than 50 employees), nonprofit organizations, and third party SEPs, in which
case the percentage may be as high as 100%. The Tribe, however, retains the sole
discretion to allow SEPs to mitigate penalties.

•

A SEP, either first or third party, cannot be used to offset any portion of the
economic benefit component.

2.) The extent to which penalty mitigation will be allowed by a SEP will depend on the
Tribe’s evaluation of how effectively it will achieve the six factors listed below. Only
exceptional projects and projects that benefit a third party, will be allowed the
maximum mitigation.
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Enforcement Procedures and Penalty Manual
•

Benefits to the Public or Environment - All SEPs must meet this objective. The
extent to which a project reduces discharges of pollutants to the environment or
reduces risk to the general public resulting in a higher positive environmental
effect will rate higher in this factor.

•

Innovativeness - SEPs that further the development and implementation of
innovative processes, technologies, or methods to more effectively reduce the use,
generation, release, or disposal of pollutants; conserve natural resources; or,
promote compliance will rate well in this factor.

•

Environmental Justice - SEPs that mitigate damage or reduce risk to minority or
low income populations that have been disproportionately exposed to pollution, or
are at environmental risk, perform well in this factor.

•

Cross-media Impacts - SEPs that reduce emissions in more than one medium
(air, water, or soil) perform well in this factor.

•

Pollution Prevention - SEPs that develop and implement pollution prevention
techniques and practices perform well in this factor.

•

Community Input - SEPs that perform well in this factor will have been
developed taking into consideration input received from the affected community.
No credit should be given for this factor if the respondent did not actively
participate in soliciting and incorporating public input into the SEP.

In determining the amount of credit each dollar spent on a SEP should receive, the Tribe
will determine the primary beneficiary of the SEP. For a first party SEP the ratio of penalty
mitigation to SEP cost shall typically be no less than 1 to 1.5 (e.g., to receive $100,000 in penalty
mitigation, a source may be required to spend as much as $150,000 on a SEP). The 1 to 1.5 ratio
of civil penalty mitigation recognizes the potential cost savings, public relations, and other
benefits associated with first party SEP expenditures that may accrue to the source. SEP costs
may be lower than 150% and, at times, as low as 100% of the amount of the monetary penalty
mitigation, if the source chooses a SEP that benefits a third party and can prove there is no
benefit to the source associated with the expenditures. Credit for a SEP cannot be given for a
project planned or initiated before the enforcement action because it credits a project that would
otherwise occur.

4. Legal Guidelines for Negotiating SEPs

Before approving a SEP, the Tribe will also consider:
• Projects that have an adequate and reasonable relationship, or nexus, between the
violation and the proposed project. This relationship exists if the project
remediates or reduces the probable overall environmental or public health impacts
of risks to which the violation contributes, or if the project is designed to reduce
the likelihood that similar violations will occur in the future.
•

All projects must be completed within the exterior boundaries of the Southern Ute
Indian Reservation.
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Enforcement Procedures and Penalty Manual
•

Projects cannot be inconsistent with any underlying statute and generally must
advance at least one of the declared objectives of the Reservation Air Code.

•

Projects cannot involve the commitment of the source to do an activity or meet an
objective the source is already mandated or required to do under any statutory or
regulatory requirement.

•

Projects cannot involve any initiative the source began or proposed to do before
the commencement of the enforcement action.

•

Projects must be set forth in sufficient detail in a signed Settlement Agreement or
supporting document required by a Settlement Agreement. The Tribe will not
approve a SEP without having a well-defined project or project timeline.

The Tribe may not play a role in managing or controlling funds to be set aside or
escrowed for performance of a SEP, nor may the Tribe retain authority to manage or administer
the SEP. The Tribe may provide oversight to ensure that a project is implemented pursuant to the
provisions of the settlement and will pursue legal recourse if the SEP is not adequately
performed.

5. Drafting Enforceable SEPs

The Settlement Agreement must accurately and completely describe the SEP, including
the specific actions to be performed and provide a reliable and objective means to verify the
source has completed the project in a timely manner. To the extent feasible, the source should be
required to estimate, at the outset, the benefits associated with the SEP and to subsequently track,
measure, and report those benefits to the Tribe. The source is ultimately responsible and legally
liable for ensuring that a SEP is completed satisfactorily. The source may not transfer this
responsibility and liability to a third party. The Settlement Agreement should require a source to
clearly state that the project was undertaken as part of an enforcement action whenever the
source publicizes the SEP and the results of the SEP.

6. Measurement

When feasible, the initial SEP proposal should include an estimate of all environmental
benefits, a description of the methodology used to estimate those benefits, and baseline data
regarding the relevant environmental impact in order to measure progress.
The source may be required to submit status reports as appropriate. A “SEP Completion
Report” must be submitted to the Tribe no later than 2 months after project completion. If more
time is needed for outcome measurements or project evaluation, a deadline extension should be
requested in writing to the Tribe. At a minimum, the SEP Completion Report should include:
1) A detailed description of the project as implemented;
2) A description of any operating problems encountered and the solutions thereto;

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Enforcement Procedures and Penalty Manual

3) Itemized costs, documented by copies of purchase orders and receipts or canceled
checks;
4) Certification and demonstration that the SEP has been fully implemented pursuant to
the provisions of the Consent Order; and
5) A description of the environmental and public health benefits resulting from
implementation of the SEP along with quantification of the outcomes and benefits.

The calculation of the cost and benefits of the SEP must include actual costs and
economic benefits to the source. For example, the source must clearly document any benefits
received by the sale of equipment being replaced by the SEP or benefits received from land
donations.

7. Failure to Complete a SEP and Penalties

If a SEP is not completed to the satisfaction of the Tribe within the time periods
specified, or the source fails to implement the terms of the SEP for the entire life of the
agreement, the remaining penalty mitigation attributed to the SEP or a stipulated penalty must be
paid to the Tribe as an administrative penalty. The Tribe may impose a stipulated penalty, in
addition to the remaining penalty mitigation attributed to the SEP, for the source’s failure to
comply with the specific requirements of the SEP (e.g., failure to meet deadlines in the
agreement or adequate completion of the SEP). The determination of whether a SEP has been
satisfactorily completed is in the sole discretion of the Tribe. Although it is the source that is
ultimately responsible for ensuring that a SEP is completed satisfactorily, third party SEP
recipients should recognize that any failure on their part to complete a SEP or submit a SEP
Completion Report would result in a loss of eligibility for receiving future SEP funding.

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Enforcement Procedures and Penalty Manual
Last Revised November 29, 2022.

This manual has been reviewed by the Tribe’s legal counsel and is approved by the
signatories below on the dates written:
SOUTHERN UTE INDIAN TRIBE
Chris Mimmack J/R

Digitally signed by Chris Mimmack
J/R Director

Director
Date: 2022.11.28 16:11:33 -07'00'
By:______________________________Date:_______________
Chris Mimmack,
Justice and Regulatory Department Director

Mark A. Hutson Date: 2022.11.28 16:07:33 -07'00'
By:______________________________Date:_______________
Mark Hutson,
Environmental Programs Division Head
Digitally signed by Mark A. Hutson

signed by Danny Powers
Danny Powers Digitally
Date: 2022.11.29 08:04:37 -07'00'
By:______________________________Date:_______________
Daniel Powers,
Air Quality Program Manager

cc:

David Smith, Legal Services Director
Sam W. Maynes, Tribal Legal Counsel
Lorelyn Hall, Deputy Legal Department Director

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Enforcement Procedures and Penalty Manual
XIV. Attachments

Attachment 1 – Enforcement Process Flow

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Enforcement Procedures and Penalty Manual

Attachment 2 - Violation Categorization Matrix (subject to change)

Major (Class A)
1

2

3

4

5

6

7
8
9
10

11

12
13

14

15

Moderate (Class B)

Minor (Class C)

Not maintaining control equipment or failure to Not maintaining control equipment or failure to Not maintaining control equipment or failure to
operate control equipment for a pollutant at a
operate control equipment, for a pollutant, at a operate control equipment, for a pollutant, at a
major NSR source in a manner consistent with synthetic minor source, in a manner consistent true minor source, in a manner consistent with
good air pollution control practices.
with good air pollution control practices.
good air pollution control practices.
Violation by a synthetic minor source of an
Emission limit violations at a synthetic minor
Emission limit violation at a true minor source
emission limit or permit condition that affects source that does not jeopardize the synthetic
that did not result in the source exceeding true
the source’s Title V status.
minor status of the source.
minor source permitting thresholds.
Failure to conduct emissions tests necessary to Failure to monitor or maintain records necessary Failure to conduct emissions tests, monitor, or
demonstrate compliance with standards
to demonstrate compliance with standards
maintain records necessary to demonstrate
involving a pollutant for which the source is a involving a pollutant for which the source is a
compliance with standards involving a pollutant
synthetic minor.
synthetic minor.
for which the source is a true minor source.
Violations that involve recordkeeping or
Partial violations of recordkeeping or reporting Minor deficiencies of recordkeeping or reporting
reporting that substantially interfere with
that interfere with enforcement or determining
that do not interfere with enforcement or
enforcement or determining the source’s
the source’s compliance status.
determining the source’s compliance status.
compliance status with applicable emission
requirements.
Substantial violation of the source’s obligation Failure to obtain a necessary minor permit
Failure to obtain an administrative permit
to submit a Title V permit application or
revision, or failure to apply to incorporate a new revision, submit an off-permit change
significant permit revision.
or revised NSR permit into a Title V permit.
notification, or document an applicability
determination.
Violation of the source’s Title V certification Violation of the source’s Title V certification
Violation of the source’s Title V certification
obligations due to substantial failures to report obligations due to moderate failures to report
obligations due to minor failures to report
deviations in ACOMP and SIXMON reports and deviations in ACOMP and SIXMON reports and
deviations in ACOMP and SIXMON reports
and certifications.
certifications.
certifications.
Significant failure to install or operate emission Partial failure to install or operate emission
Failure that was infrequent and of short duration
controls correctly, and resulting in excess
controls correctly and not resulting in excess
to operate emission controls correctly, with
emissions to atmosphere.
emissions to atmosphere.
minimal or no emissions to atmosphere.
Failure to submit an emission test report or
Late submission of an emission test report or
Late submission of an emission test report or
performance test report greater than 60 days
performance test report 30 to 60 days late.
performance test report less than 30 days late.
late.
Significant or complete failure of work practice Failure of work practice or operational standards Failure of work practice or operational standards
or operational standards.
that were not self-reported by the source.
that were infrequent and of short duration and that
were self-reported by the source.
Failure to submit emissions fees, emissions
Late submission of emission fees, emissions
Late submission of emission fees, emissions
inventory, or compliance certifications greater inventory, or compliance certifications 30 to 60 inventory, or compliance certifications less than
than 60 days late.
days late.
30 days late.
Significant or complete failure to install,
Partial failure to calibrate or maintain a
Partial failure to calibrate or maintain a
calibrate, maintain or operate a continuous
continuous parametric monitoring system or
continuous parametric monitoring system or
parametric monitoring system or continuous
continuous emissions monitoring system that
continuous emissions monitoring system that
emissions monitoring system that substantially interferes in determining compliance with the
does not significantly interfere with determining
interferes in determining compliance with the source’s monitoring requirements.
compliance with the source’s monitoring
source’s monitoring requirements.
requirements.
Substantial violation of CAA Section 112(r)
Failure to maintain records of an Alternative
Failure to submit contemporaneous notice of an
requirements.
Operating Scenario.
Alternative Operating Scenario.
Failure to respond to CAA §114 Request for
Complete failure to submit a Notification of
Failure to submit a Notification of Compliance
Information greater than 30 days late.
Compliance Status or Notification of Intent to
for a performance test at least 60 days after the
conduct a test.
test, or a Notification of Intent at least 60 days
before a test.
Failure to install BACT and/or operate it
Failure to complete tuning or an energy
Failure to file relocation notices (with no
correctly.
assessment of a boiler, furnace, or heater as
attendant permit, NSPS, or MACT violations).
required under MACT.
Significant failure of continuous parameter
Moderate failure of continuous parameter
Minor failure of continuous parameter monitoring
monitoring with a data capture period less than monitoring with a data capture period between with a data capture period between 50-80% of
50% of total operating time.
50-80% of total operating time that was not self- total operating time that was self-reported by the
reported by the source.
source.

40

Enforcement Procedures and Penalty Manual

16

17

18
19

Violation of an emission limit measured during Violation of an emission limit measured during Deviation of a test method that does not
a performance test with test results indicating
a performance test with test results greater than significantly interfere with determining the
emissions greater than 60% above the emission 1% but less than 60% above the emission
source’s compliance with an applicable emission
standard or test method deviation that
standard, or test method deviation that could
standard.
substantially interferes in determining the
potentially interfere with determining the
source’s compliance with an applicable
source’s compliance with an applicable emission
emission standard.
standard.
Violation of parameter limits where parameter Violation of parameter limits where parameter is Violations of a parameter limit at a true minor
is a direct surrogate for an emissions limitation, not a direct surrogate for an emissions
source.
detected by continuous or periodic parameter
limitation, detected by continuous or periodic
monitoring.
parameter monitoring.
Clean Air Act (CAA) violations by chronic or Failure to submit a new or revised fugitive dust Using a generally accepted test protocol without
recalcitrant violators.
control plan upon request, or to implement the
prior Administrator approval.
plan.
Violation of any substantive term of any Tribal Violation of a minor term of any Tribal or
Violation of an insubstantial term of any Tribal or
or Federal order, consent decree, or
Federal order, consent decree, or administrative Federal order, consent decree, or administrative
administrative order.
order.
order.

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Enforcement Procedures and Penalty Manual

Attachment 3 – Clean Air Act Penalty Basis

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Enforcement Procedures and Penalty Manual

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Enforcement Procedures and Penalty Manual

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Enforcement Procedures and Penalty Manual

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Enforcement Procedures and Penalty Manual

Attachment 4 – Clean Air Act Civil Penalty Policy

This document can be found at: http://www2.epa.gov/enforcement/clean-air-act-stationarysource-civil-penalty-policy-october-25-1991

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Enforcement Procedures and Penalty Manual

Attachment 5 – EPA Federally-Reportable Violations (FRV) and High Priority
Violator (HPV) Policy

The FRV policy can be found at: https://www.epa.gov/compliance/guidance-federallyreportable-violations-stationary-air-sources
The HPV policy can be found at: https://www.epa.gov/sites/production/files/201501/documents/hpvpolicy2014.pdf

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Enforcement Procedures and Penalty Manual

Note - all samples of letters and enforcement actions are subject to change

Attachment 6 – Example Area of Concern
AIR QUALITY PROGRAM

Environmental Programs Division
Southern Ute Indian Tribe
PO Box 737 MS#84
Ignacio, CO 81137
970-563-0135
http://www.southernute-nsn.gov/justice-and-regulatory/epd/air-quality

Certified Mail No. {##}
Return Receipt Requested

{Date}
{Recipient, title}
{Company name}
{Mailing address}
{City, State ZIP}

Area(s) of Concern

Respondent: {Company name – Facility name}
Account ID: {#-###}
Inspection Date: {Date}
Dear {Recipient}:
On {Date}, {Mr. or Ms. Inspector first and last name}, an inspector with the Air Quality
Program (AQP) of the Southern Ute Indian Tribe, conducted a {Full or Partial} Compliance
Evaluation at {Company name and Facility name}.
This letter is being provided to advise {Company name} of certain areas of concern noted
during the inspection having the potential to become regulatory non-compliance issues. Based
on {Mr. or Ms. Inspector’s last name } {inspection and/or records review}, the AQP has
determined:
1. {Describe area of concern, being sure to cite evidence and dates}.
• {Potential non-compliance issue} could result in a potential violation of {RAC
Citation, Permit Provision, and CFR with Subpart}.
We appreciate your cooperation and attention to this matter. If you have any questions,
please feel free to contact me at 970-563-{Inspector’s phone extension} or by email at
{Inspector’s email address}.
SOTHERN UTE INDIAN TRIBE,
AIR QUALITY PROGRAM

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Enforcement Procedures and Penalty Manual
{Inspector name},
Air Quality Compliance Specialist
cc:

{AQP Manager name}, AQP Manager
{AQ Enforcement Coordinator name}, AQ Enforcement Coordinator

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Enforcement Procedures and Penalty Manual

Attachment 7 – Example Request for Information
AIR QUALITY PROGRAM

Environmental Programs Division
Southern Ute Indian Tribe
PO Box 737 MS#84
Ignacio, CO 81137
970-563-0135
http://www.southernute-nsn.gov/justice-and-regulatory/epd/air-quality

Request for Information
{Date}
{Recipient, Title}
{Company Name}
Account ID:
{Mailing Address}
{City, State ZIP}
Dear {Recipient}:
Regarding the AQP inspection conducted at your facility's premises on {date}, we respectfully
request additional information to complete our inspection report. Please provide copies of or
responses to the following requests to AQP by {Day, Month Date, Year (which corresponds to
two weeks from sent date)}:
1.
2.
3.
We recognize that some of this material may have been submitted to AQP in the past. If such is
the case, and that material is the most current information, simply refer to the title, date, and
specific recipient of such documents in your response to this request.
Pursuant to the RAC § 2-124, you are entitled to claim information provided to AQP, or
collected by AQP during an inspection, as confidential business information. Any such claim for
confidentiality must conform to the requirements set forth in 40 CFR 2.203(b). Information
which is emission data, is not eligible for confidential treatment as provided in 40 CFR 2.301(e).
If you have any questions, please contact 970-563-{Inspector’s phone extension}. Thank you for
your assistance in this matter.
Sincerely,
{AQP Compliance Specialist Name}
Air Quality Compliance Specialist
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Enforcement Procedures and Penalty Manual

Attachment 8 – Example Written Warning
AIR QUALITY PROGRAM

Environmental Programs Division
Southern Ute Indian Tribe
PO Box 737 MS#84
Ignacio, CO 81137
970-563-0135
http://www.southernute-nsn.gov/justice-and-regulatory/epd/air-quality

Certified Mail No. {##}
Return Receipt Requested

{Date}
{Recipient, title}
{Company name}
{Mailing address}
{City, State ZIP}

Written Warning

Respondent: {Company name – Facility name}
Account ID: {#-###}
Inspection Date: {Date}
Dear {Recipient}:
This Written Warning provides notice to {Full Company name (Company name)} of
compliance issues discovered by the Air Quality Program (AQP) of the Southern Ute Indian
Tribe at {Facility name}. {Company name} owns and operates {Facility name} which is located
within the exterior boundaries of the Southern Ute Indian Reservation at {Section}, {Township},
{Range}, {County}, Colorado. {Facility name} is subject to the terms and conditions of Tribal
Operating Permit No. V-SUIT-{XXXX-XXXX.XX} issued on {Date} and the Reservation Air
Code (RAC).
On {Date}, {Mr. or Ms. Inspector full name}, of the AQP, {inspected and/or conducted a
records review} of the {Facility name}. Based on {Mr. or Ms. Inspector’s last name}’s
{inspection and/or records review}, AQP has identified the following alleged violations:
1. RAC Citation and Permit Provisions {I.A.1.a.} – Failure to comply with the
{requirement}.
• Finding: The {requirement} for the period from {date} until {date}, was due
{date}. {Requirement} is required by {Subpart} for emission unit(s). The
report was received on {date}, {##} days late.
This letter constitutes a formal warning that {Company’s Name - Facility name} may
have operated in violation of Tribal Operating Permit No. V-SUIT-X

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Asouthern_ute%3A0f648ed1fb1eeb1a. Public record. Not legal advice.