UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUNE 24 1994

MEMORANDUM

SUBJECT: Relationship Between the Part 70 Operating Permit 
                   Program and Section 112 (r)

FROM:    John Seitz, Director
                   Office of Air Quality Planning and Standards (OAQPS)

                   Jim Makris, Director
                   Chemical Emergency Preparedness and 
                        Prevention Office (CEPPO)

TO:           Addressees

         Over the last few months, Several Regions have asked us to
clarify the relationship between the accidental release
prevention requirements in section 112(r) and permitting
requirements in Title V of the Clean Air Act (CAA).  Many
questions have arisen as a result of the review and approval
process for state Part 70 permit programs.  Guidance was issued
last April 13, 1993, explaining that requirements concerning
accident prevention under section 112 (r) (7), like other section
112 requirements, are applicable requirements under part 70 and
must be implemented and enforced through an approved State
operating permits program.  This guidance was developed prior to
the proposal of the risk management program rule under section
112(r) (7) which contains requirements that are broader than the
criteria in the guidance.  Accordingly, the final rule may
require States to modify their initially approved permit programs
to accommodate these requirements.

         The goals of this memorandum are to clarify how the current
part 70 permit program submittals from States should be reviewed
for approval with respect to section 112(r), as well as discuss
the relationship between section 112 (r) rulemaking(s) with the
Title V program .  Further resolution of specific issues will
likely be needed as the final risk management program rule is
finalized and guidance is developed, however, the main point s
are:

            The initial State permit program can be approved as long as
it shows that the State has general statutory and regulatory
authority to issue permits that ensure compliance with all
applicable section 112 requirements, including section 112(r). 
The April 13 memorandum provides Regions and States guidance on
the specific approval criteria for the initial evaluation and
approval of State part 70 permit programs.

         The approval criteria in the April 13 memorandum preceded the
section 112(r) rulemaking efforts, and consequently, may not be
sufficient to ensure compliance with all .'applicable
requirements" established in the risk management program rule. 
while the proposed rule is a good indication of the section
112(r) activities that must be carried out through part 70 programs,
the final risk management program rule will likely expand the
scope of section 112(r) applicable requirements for sources. 
Accordingly, Regions are encouraged to inform their States that
modifications to part 70 permit programs may be necessary to
accommodate requirements in the final risk management program
rule.

         The EPA will establish the minimum requirements needed to
assure implementation and compliance with the accidental release
prevention requirements in the final risk management program
rule.  This rule will also address how the applicable
requirements for sources subject to both section 112(r) and part
70 should be integrated.  State air programs will, in effect,
assume the delegation for section 112(r) unless another State
agency is designated by the Governor and receives delegation from
EPA pursuant to section 112(1).

         since CEPPO is responsible for the development of the section
112(r) requirements and is the most familiar with their content,
we believe it is imperative that the Regions work closely with
CEPPO, as well as OAQPS, to highlight areas in State part 70
programs that will likely be incompatible with the final section
112(r) (7) rulemaking.  while initial review and approval of part
70 programs will be based on the April 13 criteria, CEPPO will,
as part of the program review process, provide suggestions about
how programs could be more flexible to reduce the burden on the
State and Region to accommodate future section 112(r)
requirements.  We also want to work with Regional representatives
on the State implementation details for the risk management
program rule.  Your  feedback and input continue  to be important
and we  encourage it.

         states, as part of their part 70 programs, are only obligated
to assure compliance with section 112(r)~for sources subject to
both part 70 and section 112(r). However, as there are many
additional sources subject only to section 112 (r), EPA needs to
encourage the states to take delegation for section 112(r) for
non-title V sources. Those sources not included in a delegated
state program either through section 112(l) or in effect through
part 70 permitting, will have to be regulated by the Regions.
Regional administration of any portion of these requirements is
not desirable since accident prevention cannot be adequately
achieved without the involvement and leadership of the State, as
well as local officials and the public.

         Our staffs are ready to assist you as you work with the
States to implement part 70 and the accidental release prevention
requirements over the next several years.  If you have any
further questions on the part 70 program content with regard to
section 112(r) requirements, please contact Michael Trutna at
919-541-5345 or Julie Andres on 919-541-5339. If you have any
questions concerning the overall implementation of section 112
requirements, please call Karen Blanchard at 919-541-5647.
Questions regarding the requirements of section 112(r) should be
directed to Craig Matthiessen of CEPPO at 202-260-9781.

Attachment

cc: M. Nichols
         E. Laws
         L. Wegman
         B. Jordan
         M. Trutna
         A. Schwartz
         J. Averback
         J. Rudd
         E. Davies
         C. Matthiessen
         M. Greene

Addressees:   Linda N. Murphy, Region I Conrad Simon, Region II
              Thomas J. Naslany, Region III Winston smith,
              Region IV David Kee, Region V
         A.   Stanley Meiburg, Region VI Art Spratlin, Region
         VII Patricia Hull, Region VIII David P. Howekamp,
         Region IX Jim Mccormick, Region X Edward J.
         Conley, Region I Kathleen Callahan, Region II
         Thomas C. Voltaggio, Region III Bill Meno, Region
         V Russell F. Rhoades, Region VI Leo Alderman,
         Region VII Robert Duprey, Region VIII Jeffrey
         Zelikson, Region IX Randy smith, Region X

ATTACHMENT

         This attachment represents a consensus policy developed by
OAQPS and CEPPO, in consultation with the Office of General
Counsel (OGC), regarding the relationship between the Title V and
section 112(r) requirements.  The following information provides
some background and specific responses to frequently asked
questions concerning the interface between the section 112(r)
requirements and part 70 operating permits program.

current Review of State operating Permit Program Submissions


         Broad criteria for evaluating the section 112 portion of a
part 70 program submittal were provided in the April 13, 1993,
memorandum entitled "Title V Program Approval criteria for
section 112 Activities." The memorandum generally states that, in
order to obtain a full part 70 program approval from EPA, a
submittal is to contain authority and/or commitments sufficient
to assure that permits contain and assure compliance with all
applicable CAA requirements, including any from section 112(r).
Where general statutory authority to issue permits implementing
section 112(r) is present, but the Attorney General is unable to
certify explicit regulatory authority at the time of permit
program submittal, the Governor may instead submit commitments to
adopt and implement additional regulations, as needed, to issue
permits that implement all applicable requirements.  State
submittals that contain general statements of section 112 legal
authority without any specific reference to section 112(r) should
be approvable unless state legislation or other aspects of the
submittal prohibit or restrict the implementation and enforcement
of section 112(r) applicable requirements.

         The April 13, 1993, memorandum also defined specific approval
criteria for the State permit program submittal.  For section 112(r)
States must have adequate legal authority sufficient to: (1)
determine whether a part 70 source is obligated to register and
submit a risk management plan (RMP); (2) secure verification from
part 70 sources that any required submittal was prepared and
submitted to appropriate authorities (permit authority, EPA, and/or
another state authority); (3) obtain annual certifications from these
sources as to whether their risk management plans are being properly
implemented; and (4) include the obligation to submit such a plan in
accordance with a compliance schedule in the part 70 permit for any
sources failing to make its required plan submittal.

         These approval criteria were developed prior to the proposal of
the risk management program rule under section 112(r) (7). Please
note that we do not believe these criteria are sufficient to assure
that the section 112(r) regulations. will be implemented and enforced
after the current rulemaking efforts are completed. The proposed rule
expands upon the current notion of "applicable requirements" for
sources subject to both the accident prevention and permitting
requirements.  Accordingly, in order for states to be able to assure
compliance with the applicable requirements and retain an approved
part 70 program, changes to some State programs may be necessary.

         Where section 112(r) issues have been identified, and revisions
to the initial State programs are expected, Regions are strongly
encouraged to include a discussion of the section 112(r) rulemaking
in any public notice for the approval of that program. Draft language
has been developed to assist Regions with this portion of the Federal
Register notice.

ongoing section 112(r) Rulemaking


         As mentioned above, 'ongoing rulemaking efforts coordinated by
CEPPO will serve as a mechanism to define the scope of section 112(r)
requirements for all sources, including those sources also subject to
the title V.  For sources subject to title v, the risk management
program rule will address how the "applicable requirements" of
section 112(r) bust be integrated into a part 70 program.  presently
this is a major issue and a number of options are being considered. 
The Agency plans to outline these options in the ongoing rulemaking
process.

         While the outcome of the final rulemaking will not be known for
sometime, one approach being considered for the integration of these
provisions is to require that a risk management plan (RMP) be
submitted as part of the source's permit application, thus providing
much of the information needed for the State to determine that the
source is complying with section 112(r) requirements.  The RMP would
be examined for completeness along
'with the other information contained in the source's application.
Permit applications that are submitted prior to the due date for
submission of the risk management plan would need to contain
information regarding how the source is complying with the section
112(r) requirements and a compliance schedule demonstrating how the
source intends to come into full compliance and submit the RMP. The
part 70 permit must then list the section 112(r) applicable
requirements (this would not mean incorporation of the RMP into the
permit itself) as permit conditions because section 112(r) (7) (E) of
the CAA indicates that standards established under section 112(r) are
to be treated as section 112(d) standards.  A comparison of the
content of the RMP~with actual activities at the facility could be
incorporated into normal inspection activities at permitted sources. 
Such comparisons fall into the realm of assuring compliance with
section 112(r) applicable requirements.  Modifications to-the RMP
could be addressed through mechanisms in the proposed risk management
program rule that would not require part 70 perm*it modifications. 
This type of an integrated approach for the implementation of
section' 112(r) attempts to minimize the-burdens on the State and the
permitted source.

         Implementation of section 112(r)


            The Congress intended a Federal-State partnership in
         implementing all of section 112, including section
         112(r). Legislative history indicates that State
         "accident prevention capabilities will be a high priority
         of the air toxics program." See, e.g., S. Rep. No. 228,
         101st Cong., 1st sess., at 193. The implementation
         envisioned by Congress for accident prevention also
         focused on coordination and sharing of accident
         prevention information between various State local
         agencies within the same State.  The partnership for
         implementation of section 112(r) contemplated Federal
         standards, guidance, model plans, and research, and State
         and local integration of hazard assessments and facility
         plans into community-based planning for emergency events. 
         See, e.g., S. Rep. No. 228, 101st Cong., 1st sess., at
         225.

            To facilitate the coordination of State air and
         emergency management programs, EPA encourages each State
         to evaluate how the implementation of section 112(r) can
         be most effectively accomplished.  While implementation
         of section 112(r) for title V sources is accomplished
         through an approved part 70 program, for non-title V
         sources, it is accomplished through a section 112(l)
         delegation.  See 58 ~ 62202 (November 26, 1993).  States
         are not obligated to request delegation; however,
         delegation of section 112(r) requirements can be promoted
         through the use of implementation agreements and section
         105 grants.  In addition, the State permitting authority
         with part 70 program approval may want to develop an
         agreement with another State agency capable of reviewing
         the ~P and communicating back to them information related
         to compliance.

            Some States -have indicated they believe that the
         section 112(r) requirements duplicate already existing
         Federal, State and local requirements such as OSHA's
         Chemical Process Safety Management Standard and the
         facility notification and community emergency planning
         requirements under the Emergency Planning and Community
         Right-to-Know Act (EPCRA).  However, the focus of the
         section 112(r) requirements is to encourage industry to
         begin a serious evaluation of their current chemical
         management procedures, determine what type of off-site
         impact the chemicals
they manage have if accidentally released, establish or improved
         their accident prevention procedures, and failing these
         efforts, to minimize the impacts of an accident through
         the development of a facility specific emergency response
         plan.  Even though the accident prevention requirements
         are an integral part of (the Clean Air Act, the
         regulations developed under section 112(r) will build
         upon, but not duplicate, OSHA's Chemical Process Safety
         Management standards.  Further, the information provided
         in the RMP supplements the information available to the-
         community and public under EPCRA.

            The proposed risk management program rulemaking
         requires facilities to provide a copy of the RMP to the
         Chemical Safety Specific Questions Related to Part 70
                    Program Approval and Section 112(r)

l.            If a source is covered under title V permitting requirements and
section 112(r) provisions, what specific activities does a source need
to perform (as it relates to section 112(r) provisions) to obtain an
operating permit?  How do these activities relate to the term
"applicable requirements"?

               A source subject to section 112(r) and part 70, must provide any
information in the permit application necessary to enable the
implementing agency to determine compliance, as well as agree to
conditions in the permit that assure its compliance with all applicable
section 112(r).requirements.  Current part 70 guidance indicates the
source must agree to permit conditions that assure: (1) development and
submittal of any required risk management plan (RMP) to the appropriate
authority; and (2) annual certification by the responsible official as
to whether the RMP is being properly implemented.  Sources are also
required to submit compliance schedules when compliance with all
section 112(r) requirements has not been achieved prior to permit
issuance.

               The proposed risk management program rule would expand upon theme
requirements.  Although the final rule may differ somewhat on specifics
and on what the part 70 permit must contain, the source will generally
be required to comply with the following "applicable requirements":

         Developing a risk management program consisting of the following
         elements:
     -        conducting an off-site consequence analysis,
     -        developing -a five year accident history,
     -        reviewing and documenting the plant's chemicals,
     -        processes, and equipment,
               conducting a process hazards analysis to identify hazards,
     -        developing standard operating procedures,
     -        training and documenting training of employees,
     -        establishing preventative maintenance procedures,
     -        developing procedures for management of change,
     -        developing procedures for initial start-up and start-up after
               modifications,
     -        investigating and documenting accidents,

     -        conducting periodic safety audits, and
     -        developing an on-site emergency response program;;

         Developing and submitting a risk management plan (RMP) to the
         designated entities;

         Updating the RMP as required by rule, inspection, or change in
         process;

         submitting annual compliance certifications (as required by
         part 70).

               The CAA indicates that the regulations established under section
112(r) are to be treated and enforced as a MACT standard established
under section 112(d).  section 112(r) (7) (E) states -that "After the
effective date of any regulations' or requirement imposed under this
subsection, it shall be unlawful for any person to operate any
stationary source subject to such regulation or requirement in
violation of such regulation or requirement.  Each regulation or
requirement under this subsection shall for the purposes of sections
113, 114, 116, 120, 304, and 307 and other enforcement provisions of
this Act, be treated as a standard in -effect under subsection (d)."
Consequently, states should consider the regulations developed under
section 112(r) as they would emission standards established under
section 112(d).

2.            What is a State with an approved part 70 program required to do to
implement section 112(r) requirements as they pertain to an operating
permit?

         A State must carry out section 112(r) to the extent required
to assure compliance with the applicable requirements for part 70
sources.  In order to obtain the initial part 70 approval, a state must
'have the legal authority to assure compliance with all applicable
requirements.  The April 13, 1993, guidance indicated that a State
would need, at a minimum, the- legal authority sufficient to: (1)
determine whether a part 70 source is -obligated to register and submit
a risk management plan (RMP); (2) secure verification from part 70
sources that any required submittal was prepared and submitted to
appropriate authorities (permit authority, EPA, and/or another state
authority); (3) obtain annual certifications from these sources as to
whether their risk management plans are being properly implemented; and
(4) include the obligation to submit such a plan in accordance with a
compliance schedule in the part 70 permit for any source failing to
make its required plan submittal.  The final risk management program
rule will expand the notion of "applicable requirements" for sources
and- will also address how these requirements will be implemented by
the State through the part 70 permit program.  For further information
please refer to the ongoing section 112(r) Rulemakings discussion where
two possible approaches are outlined.

3.            Has any specific language been developed for a State's part 70
legislation rule to ensure that the state will meet section 112(r)
requirements?

               State submittals that contain general statements of section 112
statutory authority without direct reference to section 112(r) are
approvable unless the State has a particular legislative problem which
specifically prohibits the implementation of the applicable section
112(r) requirements. 

Accordingly, no model language to implement section 112 (r) has been
developed nor does there appear to be an urgent need to do so.

         In terms of regulatory language, the language in the part 70
regulations , as currently written, does not appear to be particularly
restrictive.  However, if the state regulatory language incorporates
language from the preamble to part 70 which may restrict or prohibit
the future implementation of section 112 (r), this will probably result
in revisions to the State program upon promulgation of the risk
management rule.  Thus, the broader and more flexible the legislative 
and regulatory language, the less likely that states will have to
revise any portion of their programs upon final section 112(r)
rulemaking.

4.            Is a State required to describe how it implements section 112(r)
when it submits its part 70 program to EPA for approval?

         The criteria for part 70 program approval involve the State s
ability to assure that sources comply with all applicable requirements. 
A State must describe generally how this compliance will be
accomplished.  Since many of the section 112 rulemakings have not been
finalized, this would not amount to a detailed description of
implementation activities at this time.  However, as the structure of
the accidental release prevention requirements are defined in future
rulemakings, additional details may be required through IA s, section
112(l) delegation requests, and other implementation mechanisms.  This
should not impact the permit programs if the State has broad
legislative and regulatory requirements for part 70.

5.            Should EPA require/ask a State to cover non-title V sources (but
to which section 112(r) provisions apply) when the State submits its
title V program?

         The EPA cannot require a State to cover non-title V sources when a
state submits its part 70 program.  However, States should be
encouraged to assume the responsibility of implementing section 112 (r)
for all sources.  Regions should utilize all available mechanisms
including state implementation plans and any available grant funds to
support State implementation for the non-title V sources.  If a State
chooses not to implement the section 112(r) requirements for non-title
V sources, the Region then becomes the implementing agency for those
sources.  

         The State cannot opt to cover non-Title V sources inside its Federal
Title V program even if it wishes because of the language in section
112(r)(7)(F).  This provision effectively bars the State from expanding
its federal part 70 sources population to cover sources only subject to
section 112 (r).  A State, however, may choose a different permit
mechanism to implement the requirements of section 112(r)(7) for non-
title V sources.  Such State permits would not be part 70 permits or
part of a States s approved Title V program but should not be
discouraged.

               Legislative history indicates, however, that accident prevention
capabilities are to be a high priority of an air toxic program. 
Congress contemplated a Federal-State partnership that would result in
the implementation and enforcement of section -112(r).  This
partnership was described in the legislative history to include Federal
standards, guidance, model plans, and research and State and local
integration of hazards assessments and facility plans into community
based planning for emergency events.  Thus, section 112(r) is to serve
as a mechanism for ensuring that accident prevention information is
available for integration into local community planning for emergency
events in addition to being an integral part of a state air program
with direct ties to the air toxic and permitting programs.

6.  That are EPA's options if a State does not wish to implement the
accidental release prevention requirements for Title V sources (merely
wants to reference the requirement in the permit)?

               In order to have an approvable part 70 program, a State must be
able to implement and enforce through the permit all applicable
requirements for part 70 sources.  The EPA will explore available
options to ensure that during the part 70 program approval process
section 112(r) implementation is not restricted or prohibited. 
Further, rulemaking(s) under section 112(r) will clarify how the
accident prevention requirements can be reasonably integrated into
Title V.  In addition, if the initial state permit program submittal in
some fashion currently restricts the implementation of section 112(r)
for part 70 sources, states should be informed during the approval
process that upon final promulgation of the risk management program
rule, it is likely they will be required to amend their programs to
accommodate implementation and enforcement of section 112(r) applicable
requirements.