MODEL ATTORNEY GENERAL'S OPINION TO ACCOMPANY STATE 
                   OPERATING PERMITS PROGRAM SUBMITTALS
                UNDER THE CLEAN AIR ACT AMENDMENTS OF 1990
  

                               INTRODUCTION


A.  Purpose and Use of the Model:  This model attorney general's
opinion is intended to assist State and local authorities in
developing the attorney general's opinion, which must accompany
operating permits program submittals made to the Environmental
Protection Agency (EPA) pursuant to title V of the Clean Air Act
(CAA) Amendments of 1990, 42 U.S.C.  7661 et seq.  Title V's
implementing regulations require the attorney general's opinion
to demonstrate that State law provides adequate authority for
certain program elements necessary to administer and enforce a
title V program [see 40 CFR  70.4(b)(3)(i)-(xiii) and 70.8(e)]. 
These specific program elements are referenced in sections I, III
(last sentence), V-VI, VIII-IX, XIII-XIV, XVI-XVII, and XIX-XXI
of the model opinion.  When submitted to EPA, the attorney
general's opinion must demonstrate adequate legal authority for
these elements, or the overall program submittal will be
considered deficient.  Sections II-IV (except the last sentence
of III), VII, X-XII, XV, XVIII, and XXII of the model opinion
reference additional program elements that, while not
specifically required to be addressed in the attorney general's
opinion, must in some manner be shown to be fully authorized
under State law.  The attorney general's opinion is the preferred
method for demonstrating that adequate legal authority exists for
these program elements, particularly where that authority derives
from, or is influenced by, judicial case law or is otherwise not
expressly provided for in the statutes and regulations contained
in the program submittal.     

     The attorney general's opinion generally must affirmatively
state that State laws and regulations are lawfully adopted as of
the date of signature of the attorney general's opinion and will
be fully effective by the date EPA approves the State program. 
While the model opinion most often references "State" authorities
and the requirements for EPA's approval of "State" programs,
local air pollution control agencies authorized to render such
opinions should use the model opinion by substituting citations
to local authorities for State authorities where necessary. 


B.  Organization of the Model:  The model attorney general's
opinion consists of the following three parts:

     1.   An introductory paragraph certifying that State law
(presently adopted and to be effective by the date of program
approval) provides adequate authority to carry out all aspects of
the program submitted to EPA.  This paragraph contains blanks and
bracketed inserts which must be completed to specify the position
of the person filling out the opinion and the State and State
Agency submitting the opinion. 

     2.  Sections I through XXII consist of subsections which
briefly (1) describe areas where State authority is required for
EPA's approval of a State's title V program, and (2) present the
primary federal authority or authorities for these requirements. 
At the end of each subsection are the following two headings: 
"Citation of Laws and Regulations; Date of Enactment or Adoption"
and "Remarks of the Attorney General."  The attorney general
rendering the opinion should provide the appropriate information
under the first heading.  If the authorities cited require some
interpretation, especially if such interpretation is based on
State case law or administrative practice, then the remarks
section is designed for such explanation.
     
     3.  Signature and Seal of Office.  In this section, the
attorney general completing the opinion must include his/her seal
of office if required as a matter of State law for formal legal
opinions, his/her signature, a typed version of his/her name,
his/her title, and the date the opinion was signed. 


C.  Who Signs the Attorney General's Opinion:  CAA  502(d), 42
U.S.C.  7661a(d), and 40 CFR  70.4(b)(3) require the legal
opinion be signed by the State attorney general (or the attorney
for those State, local, or interstate air pollution control
agencies having independent legal counsel), or the chief legal
officer of an interstate agency.  If independent legal counsel
signs the opinion, the attorney signing must have full authority
to independently represent the State agency in court on all
matters pertaining to the State program.  The EPA interprets CAA
 502(d) to require the chief legal officer of the office
authorized to render the opinion to sign the opinion.


D.  Additional Topics:  As discussed above, this model opinion
addresses the topics enumerated for such opinions in 40 CFR 
 70.4(b)(3) and 70.8(e), as well as other legal authorities
which are required for the title V program.  In specific
instances, additional topics or a more detailed analysis of the
topics addressed here may be required.  If, during the program-
development process, EPA raises particular issues of legal
interpretation regarding the State's ability to implement an
operating permits program consistent with title V of the CAA and
40 CFR part 70, the opinion should address those issues in
addition to the items included in this model.  This is especially
true where the State is relying on a legal interpretation of its
statutes or regulations to justify approval of its program.  The
EPA Regional Offices will work closely with individual State
attorney general offices to identify such issues.




                        ATTORNEY GENERAL'S OPINION 

                                 [ DATE ]



     Pursuant to my authority as [attorney general or equivalent
State/local attorney] and in accordance with CAA  502(d), as
amended, (42 U.S.C.  7401, et seq.), and 40 CFR  70.4(b)(3), it
is my opinion that the laws of the State [Commonwealth] of
______________________ provide adequate authority to carry out
all aspects of the program submitted by the [State agency] to the
EPA for approval to administer and enforce the operating permits
program under title V of the CAA.  The specific authorities
provided, which are contained in statutes, regulations, or other
legal authorities lawfully adopted, and which shall be fully
effective by the time the program is approved, include those
identified below.  



I.   AUTHORITY TO ISSUE PERMITS 

     State law provides authority for [the permitting authority]
to issue operating permits to all air pollution sources within
the State that are required to have permits pursuant to CAA       
 502(a) and 40 CFR section 70.3, and to incorporate into permits
and assure compliance with each applicable requirement of the CAA
and the requirements of 40 CFR part 70.  State law also provides
authority to issue operating permits for solid waste incineration
units combusting municipal waste pursuant to CAA  129(e) that
assure compliance with all applicable requirements of the CAA and
the requirements of 40 CFR part 70.

Federal Authority:  CAA  129(e), 502(a)-(b), 503, 504(a), 
42 U.S.C.  7429(e), 7661a(a)-(b), 7661b, 7661c(a); 40 CFR 
 70.4(b)(3)(i), 70.4(b)(3)(iv), 70.4(b)(3)(v), 70.5(a), 70.6,
70.7(b).

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:







II.  AUTHORITY TO ISSUE PERMITS TO NONCOMPLYING SOURCES

     State law provides authority for [the permitting authority]
to issue permits to sources that are not in compliance with
applicable requirements, and to include compliance schedules in
permits to bring sources into compliance. 

Federal Authority:  CAA  502(b)(5)(A), 504(a), 42 U.S.C. 
 7661a(b)(5)(A), 7661c(a); 40 CFR  70.5(c)(8), 70.6(c)(3).

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:




III.  PERMIT BOARD MEMBERSHIP AND CONFLICTS OF INTEREST

     State law provides that no State board or body which
approves operating permits, either in the first instance or upon
appeal, shall be constituted of less than a majority of members
who represent the public interest and who do not derive a
significant portion of their income from persons subject to
operating permits.  State law also provides that any potential
conflicts of interest by members of such board or body or the
head of any executive agency with similar powers be adequately
disclosed.  State law also provides that no permit for a solid
waste incinerator unit may be issued by an agency,
instrumentality or person that is also responsible, in whole or
in part, for the design and construction or operation of the
unit.

Federal Authority:  CAA  128(a)(1)-(2), 129(e), 42 U.S.C. 
 7428(a)(1)-(2), 7429(e); 40 CFR  70.4(b)(3)(iv).

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the attorney general:




IV.  PERMIT FEES

     State law provides authority for [the permitting authority]
to assess and collect annual permit fees (or the equivalent
amount of fees over some other period of time) from sources
within the State which are subject to the requirements of title V
of the CAA and 40 CFR part 70, in an amount sufficient to cover
all reasonable direct and indirect costs required to develop,
administer, and enforce the State's title V program.


Federal Authority:  CAA  502(b)(3)(A), 42 U.S.C                  
 7661a(b)(3)(A); 40 CFR  70.9(a)-(d).

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:




V.  PERMIT TERM

     State law provides authority to issue operating permits for
a fixed term not to exceed 5 years.  State law provides a fixed
term not to exceed 12 years for solid waste incineration units
combusting municipal waste pursuant to CAA  129(e) and a review
of such permits at least every 5 years.  State law provides
authority to issue permits with acid rain provisions for a fixed
term of 5 years.   

Federal Authority:  CAA  129(e), 408(a), 502(b)(5)(B), 
42 U.S.C.  7429(e), 7651g(a), 7661a(b)(5)(B); 40 CFR 
 70.4(b)(3)(iii)-(iv), 70.6(a)(2), 72.70(b), 72.72(a).

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:




VI.  MONITORING, RECORDKEEPING, AND REPORTING

     State law provides authority to incorporate monitoring,
recordkeeping, reporting, and compliance certification
requirements into operating permits consistent with 40 CFR 
 70.6.  State law provides authority to incorporate into the
permit periodic monitoring or testing requirements where the
existing State implementation plan or other applicable
requirement does not contain such a requirement, consistent with
40 CFR  70.6(a)(3)(i)(B).

Federal Authority:  CAA  502(b)(2), 503(b)(2), 504(a)-(c), 
42 U.S.C.  7661a(b)(2), 7661c(a)-(c); 40 CFR  70.4(b)(3)(ii),
70.6(a)(3), 70.6(c)(1), 70.6(c)(5). 

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:




VII.  INSPECTION/ENTRY AUTHORITY

     State law provides authority to incorporate into permits
inspection and entry requirements consistent with 40 CFR          
 70.6(c)(2).

Federal Authority:  CAA  504(c), 42 U.S.C.  7661c(c); 40 CFR 
70.6(c)(2).  

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:




VIII.  INCORPORATION OF ALL APPLICABLE REQUIREMENTS INTO PERMIT

     State law provides authority to incorporate into an
operating permit, upon issuance or renewal, all applicable
requirements as defined in 40 CFR  70.2, and as provided
generally in the CAA and 40 CFR part 70.

Federal Authority:  CAA  502(b)(5)(C), 504(a), 42 U.S.C. 
 7661a(b)(5)(C), 7661c(a); 40 CFR  70.4(b)(3)(v), 70.6(a).  

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:




IX.  PERMIT REOPENING

     State law provides authority to revise permits with
remaining terms of 3 or more years to incorporate new applicable
requirements which become effective after issuance of the permit. 
State law provides authority to reopen permits when additional 
acid rain requirements become applicable, regardless of the
remaining permit term.  State law provides authority to
terminate, modify, or revoke permits for cause at any time during
the permit term consistent with 40 CFR  70.7(f) and (g).

Federal Authority:  CAA  502(b)(5)(D), 502(b)(9), 42 U.S.C. 
 7661a(b)(5)(D), 7661a(b)(9); 40 CFR  70.4(b)(3)(vi),
70.6(a)(6)(iii), 70.7(f)-(g). 

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:




X.  OPERATIONAL FLEXIBILITY

     State law provides authority to issue permits which allow
changes within a permitted facility without requiring a permit
revision if the changes are not modifications under any provision
of title I of the CAA, and the changes do not exceed the
emissions allowable under the permit, provided that the source
provides at least 7 days' [or fewer days if the State requires
less time in emergencies] written notice to the State and to the
EPA.  State law provides authority for permits to include terms
and conditions for reasonably anticipated, alternative operating
scenarios in permits.

Federal Authority:  CAA  502(b)(10), 42 U.S.C.  7661a(b)(10);
40 CFR  70.4(b)(12), 70.6(a)(9). 

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:




XI.  PERMIT MODIFICATIONS

     State law provides authority to process permit modifications
in a manner that conforms to, or is substantially equivalent to,
the procedures set forth under 40 CFR  70.7(e). 

Federal Authority:  CAA  502(b)(6), 42 U.S.C.  7661a(b)(6); 
40 CFR  70.4(b)(13), 70.7(e). 

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:

XII.  PUBLIC PARTICIPATION

     State law provides authority for procedures to allow public
participation in [the permitting authority's] action to issue or
deny an operating permit, to modify a permit [except as provided
in 40 CFR  70.7(e)(2) and (3)], or to renew a permit.  Public
participation under State law includes the opportunity for public
comment and the opportunity for a hearing on draft permits in
accordance with the requirements of the CAA and 40 CFR  70.7(h). 
State law provides for affected States to review permit
applications in accordance with the CAA and 40 CFR  70.8(b).

Federal Authority:  CAA  502(b)(6), 505(a)(2), 42 U.S.C. 
 7661a(b)(6), 7661d(a)(2); 40 CFR  70.7(h), 70.8(b). 

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:




XIII.  PUBLIC ACCESS TO PERMIT INFORMATION

     State law provides authority to make available to the public
any permit application, compliance plan, permit, and monitoring
and compliance certification report, except for information
entitled to confidential treatment.  State law provides that the
contents of an operating permit shall not be entitled to
confidential treatment.    

Federal Authority:  CAA  114(c), 502(b)(8), 503(e), 42 U.S.C.
 7414(c), 7661a(b)(8), 7661b(e); 40 CFR  70.4(b)(3)(viii).

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:




XIV.  ENFORCEMENT OF PERMITS PROGRAM REQUIREMENTS

     State law provides civil and criminal enforcement authority
consistent with 40 CFR  70.11, including authority to recover
penalties and fines in a maximum amount of not less than $10,000
per day per violation. 

Federal Authority:  CAA  502(b)(5)(E), 42 U.S.C. 
 7661a(b)(5)(E); 40 CFR  70.4(b)(3)(vii), 70.11. 

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:




XV.  AUTHORITY TO ENFORCE LAPSED PERMITS

     State law provides authority to enforce the terms and
conditions of a permit which has expired, if the source has filed
a timely and complete application for renewal, so as to assure
compliance with all applicable requirements.

Federal Authority:  CAA  502(b)(5)(A), 42 U.S.C. 
 7661a(b)(5)(A); 40 CFR  70.4(b)(10). 

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:

Remarks of the Attorney General:




XVI.  EPA PERMIT VETO

     State law provides that an operating permit will not issue 
if the Administrator of EPA (or her designee) objects in a timely
manner to its issuance pursuant to 40 CFR  70.8(c) or, if the
permit has been issued, but the Administrator or her designee
objects pursuant to 40 CFR  70.8(d).

Federal Authority:  CAA  502(b)(5)(F), 505(b), 42 U.S.C. 
 7661a(b)(5)(F), 7661d(b); 40 CFR  70.4(b)(3)(ix), 70.8(c)-(d).

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:




XVII.  FINAL AGENCY ACTION ON PERMITS

     State law provides that, solely for the purposes of
obtaining judicial review in State court for [the permitting
authority's] failure to take final action, "final permit action"
shall include the failure of [the permitting authority] to take
final action on an application for a permit, permit renewal, or
permit revision within [the time specified in the State program]. 
[Note:  If the State program allows sources to make changes using
the minor permit modification process, the permitting authority's
failure to take final action within 90 days of receipt of an
application requesting a minor permit modification (or 180 days
for minor modifications subject to group processing requirements)
is subject to judicial review in State court.]

Federal Authority:  CAA  502(b)(7), 42 U.S.C.  7661a(b)(7); 
40 CFR  70.4(b)(3)(xi).

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:




XVIII.  DEFAULT PERMIT ISSUANCE

     State law [prohibits or does not authorize] the issuance,
modification, or renewal of any permit based on the passage of a
specified time period when [the permitting authority] has failed
to take action on the application, and does not include any other
similar provision providing for default issuance of a permit
unless EPA has specifically waived the right of review for itself
and affected States.

Federal Authority:  CAA  505(a)-(e), 42 U.S.C.  7661d(a)-(e);
40 CFR  70.8(e)

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:




XIX.  OPPORTUNITY FOR JUDICIAL REVIEW OF PERMIT ACTIONS

     State law provides an opportunity for judicial review in
State court of any final permit action by the applicant, any
person who participated in the public-participation process
provided pursuant to the CAA and 40 CFR  70.7(h), or any other
person who could obtain judicial review of such actions under
State laws, including [specify State laws affording such judicial
review].  Any provisions of State law which limit access to
judicial review do not exceed the corresponding limits on
judicial review imposed by the standing requirements of Article
III of the United States Constitution.

Federal Authority:  CAA  502(b)(6), 42 U.S.C.  7661a(b)(6); 
40 CFR  70.4(b)(3)(x).

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:



XX.  LIMITATIONS ON JUDICIAL REVIEW

     State law provides that the opportunity for judicial review
of a final permit action in State court described in paragraph    
[ ] of this opinion shall be the exclusive means for obtaining
judicial review of the terms and conditions of permits.  State
law provides that petitions for judicial review must be filed no
later than [90 days, or less, if required by the State] after the
final permit action.  State law provides that where petitions for
judicial review are based solely on grounds arising after the [90
days or less] deadline for judicial review, such petitions may be
filed no later than [90 days or less] after the new grounds for
review arise.  State law further provides that if the final
permit action being challenged is [the permitting authority's]
failure to take final action, a petition for judicial review may
be filed at any time before [the permitting authority] denies the
permit or issues the final permit.

Federal Authority:  CAA  502(b)(6), 42 U.S.C.  7661a(b)(6); 
40 CFR  70.4(b)(3)(xii).

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:



XXI.  COORDINATION WITH ACID RAIN PROGRAM REQUIREMENTS

     State law is consistent with, and cannot be used to modify,
the Acid Rain Program requirements of 40 CFR part 72.

Federal Authority:  CAA  408(a), 506(b), 42 U.S.C. 
 7651g(a), 7661e(b); 40 CFR  70.4(b)(3)(xiii), 72.70(b),
72.72(a).

Citation of State Laws and Regulations; Date of Enactment or
Adoption; Effective Date:   

Remarks of the Attorney General:

XXII.  AUTHORITY FOR LOCAL/INTERSTATE PROGRAMS [WHERE             
       APPLICABLE]

     [NOTE:  Where a local or interstate air pollution control
agency geographically situated within or partially within the
State or Commonwealth will submit a separate title V program to
EPA for approval, the attorney general should specify the basis
under State law for the local or inter-state agency to administer
such a program.]  State and [local or interstate] law provides
authority for [the local or interstate permitting authority] to
develop, administer, and enforce an air operating permits program
under the CAA and 40 CFR part 70.

Citation of State/Local/Interstate Laws and Regulations; Date of
Enactment or Adoption; Effective Date:   

Remarks of the Attorney General:
 



Seal of Office          ________________________________________
(if required)           Signature


                        ________________________________________
                        Name (Type or Print)


                        ________________________________________
                        Title


                        ________________________________________
                        Date