September 20, 1994






MEMORANDUM

SUBJECT:  The Radionuclide National Emission Standard for
          Hazardous Air Pollutants (NESHAP) and the Title V
          Operating Permits Program

FROM:     John S. Seitz, Director /s/
          Office of Air Quality Planning and Standards (MD-10)

          Margo T. Oge, Director /s/
          Office of Radiation and Indoor Air

TO:       Director, Air, Pesticides and Toxics
            Management Division, Regions I and IV
          Director, Air and Waste Management Division,
            Region II
          Director, Air, Radiation and Toxics Division,
            Region III
          Director, Air and Radiation Division,
            Region V
          Director, Air, Pesticides and Toxics Division,
            Region VI
          Director, Air and Toxics Division,
            Regions VII, VIII, IX, and X


     Title V of the Act, and implementing regulations at 40 CFR
part 70, require that States develop operating permits programs
meeting various criteria.  One important aspect of State program
adequacy is the ability to issue permits that assure compliance
with all requirements of the Act applicable to the permitted
sources.  These applicable requirements include the radionuclide
NESHAP, promulgated at 40 CFR part 61.

     The EPA and certain other Federal agencies have
traditionally played the primary role in implementing
requirements applying to sources of radiation.  As a result, 
very few States have yet developed the technical expertise to
independently implement these requirements.  This situation has
prompted concern regarding the approvability of submitted State
part 70 programs.  The purpose of this guidance memorandum, and                                      2

its attachments, is to describe the relevant criteria for an
approvable part 70 program with respect to the radionuclide
NESHAP.  Under this policy, a part 70 program submittal would be
judged as meeting the requirements of part 70 if the State has
demonstrated that it has adequate statutory authority to issue
title V permits that assure compliance with these NESHAP, and the
State implements this authority through the timely issuance of
adequate permits.

     The EPA recommends that States, in conjunction with the
appropriate EPA Regional Office, develop State-EPA implementation
agreements outlining the types of program development support
they may need to be able to issue permits that assure compliance
with the radionuclide program if they are not able to do so at
the present time.

     This guidance focuses on the radionuclide NESHAP because of
special considerations regarding the traditional role of the
Federal government in implementing these programs, the need for
enhancing State technical expertise, and the potential for EPA
support.  The basic regulatory precepts discussed in this
guidance are, however, consistent with the principles set forth
in the April 13, 1993 memorandum from John Seitz, entitled 
"Title V Program Approval Criteria for Section 112 Activities." 
Please refer to that guidance for background information on the
interface between the NESHAP and title V.

     States are authorized under section 112(l) of the Act to
submit programs to EPA for the implementation and enforcement of
hazardous air pollutant requirements, including radionuclides. 
For guidance regarding approval of State programs for
implementing the radionuclide NESHAP under section 112(l), refer
to the enabling guidance document for the implementation of 
40 CFR part 63, subpart E.  The EPA strongly encourages States to
obtain delegation of all NESHAP, including the radionuclide
NESHAP.
  
     On a related but separate matter, EPA has received questions
from States regarding whether EPA expects that all State
radionuclide program activities are to be carried out by the air
program.  The EPA wishes to clarify that States would be free to
use whichever combination of their personnel they feel is
appropriate for performing these duties.  Such joint efforts
would have to be sufficiently described so that EPA and the
public can understand how the job will be done.  Some States have
suggested that an intragovernmental agreement would be a useful
mechanism for managing this activity.  Attachment II is included                                      3

as an example of the type of agreement which could be drafted by
State agencies to outline their respective obligations.  Use of
this document by a State would be optional. 

     The policies set out in this guidance document are intended
solely as guidance and do not represent final Agency action and
are not ripe for judicial review.  They are not intended, nor can
they be relied upon, to create any rights enforceable by any 
party in litigation with the United States.  The EPA officials
may decide to follow the guidance provided in this guidance 
document, or to act at variance with the guidance, based on an
analysis of specific circumstances.  The EPA also may change this
guidance at any time without public notice.

     For further information, please contact Joanna Swanson at
(919) 541-5282 or Kirt Cox at (919) 541-5399 regarding State
permit program approval issues, Jackie Dziuban at (202) 233-9474
regarding radiation program issues, and JoAnn Heiman at (913)
551-7323 regarding State/EPA Regional Office implementation
agreements. 

Attachments

cc:  Air Branch Chief, Regions I-X
     Radiation Program Manager, Regions I-X
     Operating Permits Contacts, Regions I-X and Headquarters    
     M. Thrift, OGC
     T. Schauer, OECA
     S. Childress, OECA
     J. Karhnak, ORP

 
                               ATTACHMENT I

         THE RADIONUCLIDE NATIONAL EMISSION STANDARD FOR HAZARDOUS
         AIR POLLUTANTS (NESHAP) AND APPROVAL OF TITLE V PROGRAMS 

I.  BACKGROUND

     The operating permits program under title V of the Clean Air
Act (Act) and the Environmental Protection Agency's (EPA's)
implementing regulations promulgated at 40 CFR part 70 provide
that the permit constitutes a comprehensive statement of all of
the source's obligations under the Act.  This comprehensive
approach to addressing all of a source's air quality obligations
in one document is an important benefit provided by the title V
permitting program to industry, the public, and regulatory
agencies.
  
     In order to have a fully-approvable part 70 program, the
permitting authority must be able to incorporate all applicable
requirements into the title V permit at the time of issuance.   
Part 70 requires that the permitting authority have the statutory
authority to issue permits that assure compliance with the NESHAP
through permits, and that it take the necessary steps to assure
timely implementation of the permit program.  As described below,
these efforts will likely include working with EPA in the
implementation of these part 70 permits and the development of
independent program expertise.  

     In the initial years of the permit program, EPA would
supplement State technical expertise, within available resources,
in order to support drafting and implementation of these permits. 
The specific terms and duration of this support in drafting and
implementing the permits are subject to negotiation between the
individual States and EPA Regional Offices.  Furthermore, EPA
would, within available resources, provide training to States to
support their development of technical expertise.  The EPA
suggests that States and EPA Regional Offices discuss the terms
of this ongoing working relationship and embody their agreements
into EPA-State implementation agreements.

     Some individuals have inquired whether this effort is
necessary because, with few exceptions, part 70 provides States
with initial discretion to defer permitting of part 70 sources
that are not major.  Because there is not yet a definition of
"major" for radionuclide sources, no source would be a major
section 112 source solely due to its radionuclide emissions.  It
should be noted, however, that some of the units subject to a
radionuclide NESHAP are part of a source that is major for other
reasons, such as for sulfur dioxide emissions from an industrial
boiler.  In such a case, the entire source would need to obtain a
permit, and that permit would be required to address all
applicable requirements of the Act to which the source is
subject, including the radionuclide NESHAP (see 40 CFR part 61, 

                                     2

subparts B, H, I, K, Q, R, T and W).  Thus, although more sources
could be subject to permitting for radionuclides if there were
currently a major source definition with respect to
radionuclides, some radionuclide sources will fall within the
bounds of title V applicability even without such a definition.

II.  TITLE V PROGRAM APPROVAL

     Section 112 authorizes EPA to delegate section 112
authorities to States.  Only States seeking to implement and
enforce some provisions of their own air toxics programs, in lieu
of rules resulting from the Federal program under section 112,
are required to obtain standard-specific approval for such
substitution under 40 CFR part 63.  In order to receive title V
permit program approval, State programs would have to provide
that State-issued title V permits would incorporate the
radionuclide NESHAP without any changes unless EPA has approved a
different but equivalent State rule under section 112(l).  If a
State's radionuclide NESHAP program has been approved under
section 112(l), the State permit need only assure compliance with
the approved State NESHAP program, and not the Federal standards. 
For guidance regarding approval of State programs for the
implementation of the radionuclide NESHAP under section 112(l),
refer to the enabling guidance document for the implementation of
40 CFR part 63, subpart E.  

     The Act requires permitting authorities to obtain the legal
authority to issue permits that assure compliance with the
radionuclide NESHAP for title V program approval.  There must be
no limitations in State statutory authority that would prevent
adequate implementation of the part 70 program with respect to
radionuclide NESHAP applicable requirements.  It can generally be
assumed that State enabling legislation is adequate for this
purpose unless there is some express limitation on this 
authority.

     For the purposes of the radionuclide NESHAP, a submitted
State part 70 program would be considered adequate if it provides
for the permitting authority to issue and implement comprehensive
title V permits in a timely fashion.  Timely permit issuance
requires that within 3 years from the effective date of the 
title V program, the permitting authority must have taken final
action on all initial part 70 permit applications, including
those from sources subject to the radionuclide NESHAP.  This
period provides States with some flexibility in the scheduling of
these program efforts.  During this period, States should be able
to hire and train radiation personnel and to obtain the needed
radionuclide expertise by way of cooperative efforts with EPA, or
a State agency, or through assistance of an independent
contractor.  Furthermore, the permitting authority could also
request approval of a State radionuclide NESHAP program under
section 112(l) during the first 2 years after the effective 

                                     3

date of a part 70 program and be ready to take final action on
any permit requiring radionuclide NESHAP conditions by the final
year of the transition period.  

     Because of the technical challenges posed by the
radionuclide NESHAP, EPA would provide support within available
resources to those State and local agencies who need assistance
during the initial years of program implementation.  To more
clearly identify the scope of the technical support needs, EPA
recommends that an EPA-State implementation agreement between the
permitting authority and EPA Regional Office be developed which
outlines the timing and level of assistance necessary for meeting
this goal.  The agreement would facilitate the appropriate
allocation of EPA Regional Office resources available for
assisting States in addressing the radionuclide NESHAP.

     Developing and implementing a title V program that permits
radionuclide sources will undoubtedly require some level of
funding.  Title V fee provisions were designed to ensure that
States receive adequate funding to carry out their new permitting
responsibilities.  The Act requires permitted sources to pay fees
sufficient to cover all reasonable costs required to develop and
administer the permit program requirements of title V.
Consequently, the Act requires that States must establish fee
schedules that address the radionuclide NESHAP-related costs of
the permit programs.

III.  TYPES OF POSSIBLE EPA ASSISTANCE TO STATES

     The EPA recognizes that assuring compliance with the
radionuclide NESHAP is a complicated aspect of the activities
which States must address under title V.  Within available
resources, EPA can provide varying levels of assistance to State
radionuclide NESHAP phase-in activities.  Examples of possible
support efforts include:  assisting the permitting authority in
determining which facilities are subject to the NESHAP
regulations, and providing a qualified EPA inspector to accompany
a State employee on a radionuclide NESHAP inspection.  Should the
inspection result in the initiation of enforcement action, EPA
may also provide assistance in this area.  The EPA may also
provide guidance to States in determining radionuclide emissions
and assessing doses to persons residing in the vicinity of
facilities.  Providing technical assistance and training for
implementation of the radionuclide NESHAP and assisting in State
program negotiations between air and radiation personnel are
other examples of support that EPA may be able to provide.
                                     4

Summary

     In summary, there are two aspects of the radionuclide NESHAP
and title V programs that need to be in place for the approval of
a part 70 permit program submitted by a State or local agency.  

     The first requires the permitting authority to demonstrate
to EPA that no legal impediment exists to issuing part 70 permits
that assure compliance with radionuclide NESHAP.  A demonstration
that adequately addresses this issue may have already been
provided with the submitted title V program and consequently need
not be revisited.  Second, as required by the Act and the part 70
rule, final action must be taken on all initial part 70 permit
applications, including sources subject to the radionuclide
NESHAP, within 3 years from the effective date of the program.  

     Because of the traditional role that the Federal government
has played in implementing radionuclide programs, EPA would
provide technical assistance within available resources to State
and local permitting authorities to develop independent State and
local radionuclide NESHAP programs.  The EPA recommends that the
permitting authority develop an EPA-State implementation
agreement in cooperation with the EPA Regional Office, which
memorializes the sequence of events needed for the permitting
authority to develop a self-sufficient radionuclide NESHAP
program.
                               ATTACHMENT II

     State officials have asked whether the Environmental
Protection Agency (EPA) expects that all State radionuclide
program activities must be carried out by the air program.  The
EPA wishes to clarify this issue by reporting that the States
would be free to use whichever combination of their personnel
they feel is appropriate for performing these duties.  Efforts
involving more than one State agency would have to be
sufficiently described so that EPA and the public can understand
how the job will be done. 
 
     Some States have suggested that an intragovernmental 
agreement (IGA) would be a useful mechanism for managing this     
activity and demonstrating its efficacy to the public.  Thus, 
the following model, which describes one State's plan for IGA
coordination, is included as an example of the type of agreement
which could be drafted by State agencies to outline the
respective obligations of the various State agencies.  Use of
this model agreement by a State is optional.

                               EXAMPLE ONLY


                     INTRAGOVERNMENTAL (IGA) AGREEMENT

                  Between the State Air Pollution Agency 
                                  and the
                        State Department of Health


                                  PURPOSE

     This IGA is made and entered into between the State Air
Pollution Control Agency (APCA) and the State Department of
Health (DH) pursuant to authorities granted within the revised
code of the State.  The effect of this IGA is to recognize the DH
as the lead agency for regulation of radioactive air emissions
and the APCA as the lead agency for issuing air quality permits
under State law.


                                BACKGROUND

     The DH has the responsibility to regulate sources of
radioactive air emissions per State regulation, and APCA has the
authority to issue both notice of construction and operating
permits for sources of air contaminant emissions under State
regulation.  All federally-applicable requirements must be
included in the operating permits, including all national
emission standards for hazardous air pollutants.


                   RESPECTIVE ROLES AND RESPONSIBILITIES

State Air Pollution Control Agency

     1.  The APCA will regulate nonradioactive airborne
pollutants, issue air operating permits under State regulation,
and issue notice of construction permits for nonradioactive
airborne pollutants under State regulation for all sources
subject to operating permits requirements.

     2.  The APCA will include all applicable Federal
requirements in the operating permit.  The APCA will consult 
with DH to determine the contents of the permit pertaining to
radioactive air emissions.

     3.  The APCA will reimburse DH for all title V costs which
are incurred by DH at sources required to obtain a construction
or operating permit.

                                     2

State Department of Health

     1.  The DH will act as lead agency for issues and questions
pertaining to the regulation of site radioactive air emissions. 
If a facility does not need an operating permit under State
regulation but is a potential source of radioactive airborne
pollutants, DH will regulate the facility under State
regulations.

     2.  The DH shall submit to APCA for approval a plan for
evaluating all Federal facilities not regulated by the Nuclear
Regulatory Commission.

     3.  The DH shall have the principal responsibility for
evaluating airborne radionuclide emissions during new and
modified source review, providing input for the applicable
construction permit.

     4.  The DH will identify to APCA radionuclide emissions
limitations and control technologies it deems appropriate for
adoption and incorporation into air operating permits issued by
APCA under State and Federal Clean Air Act authorities.  When
pollutant control technology requirements may effect the safety
or effectiveness of both radioactive and nonradioactive
emissions, DH and APCA agree to work together to resolve the
conflicting requirements.

     5.  The DH will perform at least one inspection annually for
any site that is required to obtain an operating permit.  The DH
will provide APCA a detailed report summarizing the inspection
and any compliance issues that are pertinent to the requirements
listed in the operating or construction permit within "X" days of
completing inspection.

     6.  The DH shall evaluate radionuclide air emissions reports
submitted by the facilities and provide an evaluation by June 30
of each year.

     7.  If DH needs assistance in enforcing any requirements DH
may request assistance from the U.S. Environmental Protection
Agency.
                                     

                               EXAMPLE ONLY