Notice of Noncompliance in the United States

Notice of Noncompliance in Environmental Law

A notice sent by the Environmental Protection Agency (EPA) or a state agency to inform the recipient that it is not complying with specified sections of the Clean Air Act. The notice is preliminary to payment of a penalty for delayed compliance with one of the specified programs under the Clean Air Act, such as the acid deposition, permitting, and stratospheric ozone provisions.

Unlike a number of other enforcement provisions, Section 120 of the Clean Air Act aims to recover the savings a company or other person realized because it did not comply with the law on time. For example, if a business was supposed to limit its emissions of sulfur dioxide by 15 March and it is out of compliance after that date, the EPA can consider what it has saved by not investing in pollution control equipment. The penalty will depend on the cost of the equipment at the time it should have been installed, the cost of maintaining, testing, and other costs associated with upkeep, and the value of money.

The notice of noncompliance places a duty on the recipient to calculate its own penalty based on the EPA’s regulations and begin submitting payments within four months. Payment of the penalty does not eliminate other rights of enforcement the government has. In the example above, the company has not only delayed putting the appropriate equipment into service, it has also been violating the emission limits. The notice of noncompliance does not deal with the emission violations, so the EPA can use a separate section of the Clean Air Act to collect penalties for them.

The notice of noncompliance is unique to the Clean Air Act, but the concept of recovering delayed compliance costs is not. In settlement discussions and penalty calculations for violations of the Clean Water Act, for instance, the government uses the economic benefit realized as an absolute bottom line in calculating the penalty. The penalty cannot go below that figure because the statute prohibits it. The penalty policies for settlement reflect the overriding concern that compliance must not be delayed to save money.
Based on “Environment and the Law. A Dictionary”.