UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
RESEARCH TRIANGLE PARK. NC 27711
OFFICE OF
DEC 10 1993 AIR QUALITY PLANNING
AND STANDARDS
MEMORANDUM -
SUBJECT: Straight Delegations Issues Concerning Sections 111
and 112 Requirements and Title V
FROM: John S. Seitz, Director
Office of Air Quality Planning and Standard (MD-10)
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
Several questions have been raised concerning the ways in
which authority to implement and enforce sections 111 and 112
requirements exactly as promulgated by EPA (i.e., "straight
delegations") can now be delegated to the States, both
independent of and in conjunction with State part 70 operating
permits programs being developed to meet the requirements of
title V. This memo and its attachment, my April 13, 1993
memorandum ("Title V Approval Criteria for Section 112
Requirements"), and the final section 112(l) rules should be
taken as Agency policy regarding straight delegations of these
requirements. This guidance, however, does not represent final
Agency action and cannot be relied upon to create any rights
enforceable by any party. Approval of State requirements that
differ from and are no less stringent than section 112
requirements are addressed in EPA's recently signed regulations
to implement section 112(l).
Some of the key points found in the attachment are summarized
as follows:
l. The Environmental Protection Agency's (EPA) ability to
delegate section 112 requirements to States is now governed by the
new section 112(l) rulemaking process added by the Clean Air Act
Amendments (CAAA) of 1990. The approval of a part 70 operating
permits program provides an excellent opportunity for 121
States to receive concurrent EPA approval-under section
112(l) of a "mechanism".by which straight delegation of
section 112 requirements, as they apply to sources covered
by the permitting program, can occur expeditiously. The
detailed procedures comprising this mechanism and the
responsibilities of each party should be specified in a
title V implementation agreement or other memorandum of
agreement (MOA). (For the purposes of this memorandum and
attachment, the term "MOA" will refer to the specific
agreement used by a State and associated EPA Regional
Office for establishing specific procedures to implement
the section 112 delegations process, regardless of whether
this agreement is in the form of a title V implementation
agreement or a more general MOA between the State and the
Region.) This approval will eliminate the need to conduct a
section 112(l) rulemaking for each new requirement that
applies to these sources. In addition, this rulemaking
should presumptively accomplish section 112(l) delegation
for any currently applicable section 112 requirements which
are delegatable, still undelegated, and applicable to
sources covered by the State's part 70 permit program. As
noted in paragraph number 4 below and discussed in the
attachment there may be certain exceptions to this (see
question 6). It may also be possible for this rulemaking
to provide for partial delegation of certain information-
receipt responsibilities for some future section 112
requirements, as long as the details of this delegation are
agreed to in an MOA, and the State has the ability to
obtain necessary enforcement authority on a timely basis.
2. Until the time of part 70 approval or in cases
where sources not subject to the part 70 program are
covered by a section 112 requirement, Regions can, in
many instances, effectively transfer much of the
technical and administrative burden of implementing and
enforcing a particular standard by establishing an MOA
with the State. Alternatively, the Region can delegate
responsibility for section 112 requirements by
accomplishing notice and comment rulemaking under
section 112(l) (5) in the most efficient manner.
Possible approaches include use of "direct final"
actions, where appropriate, and programs which
prospectively deal with delegation of section 112
requirements.
3. The options for delegation of section 111
standards prior to the 1990 CAAA remain available to the
States and EPA since the language in section 111 was
not changed. Again, the title V program approval
provides an excellent new opportunity for delegation.
4. States must acquire any new legal authority as
needed to implement the applicable requirements of
sections 111 and 112 on a timeframe sufficient to assure
timely issuance or revision of part 70 permits. For
applicable requirements existing at the time of the
State's part 70 program submittal, the State must
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demonstrate adequate existing legal authority to implement these
requirements presumptively by the effective date of the part 70
program. Under certain circumstances, a State may negotiate with
the Region a later date for acquiring such responsibility for a
particular standard. This approach will be acceptable only if it
is consistent with the timely phase-in of the part 70 program,
and if the State presents a detailed implementation strategy
convincing the Region that the necessary legal authority will be
secured consistent with its strategy.
5. There is no immediate need for a State to obtain delegation
for a standard which currently applies to sources not in that State.
However, the State and Regional Office should develop a strategy
describing how new sources of this type will
be addressed without delaying issuance of their part 70 permits.
6. The EPA anticipates that States will accept full delegation
to implement and enforce applicable sections 111 and 112 requirements
for all major and nonmajor sources subject to them. Some States have
requested that EPA partially delegate certain sections 111 or 112
requirements on the basis of source coverage. This would be done by
withholding delegation of requirements as they apply to nonmajor
sources and retaining this responsibility for EPA implementation. The
EPA Regions can consider such requests on a case-by-case basis but
this type of delegation should be reserved for those rare cases where
a State can demonstrate that the approach would still meet the
requirements of title V (e.g., a standard clearly applies in part to a
set of smaller sources which are not potentially subject to part 70).
The responses contained in the attachment have been previously
coordinated with your staff and will be placed on the Technology
Transfer Network bulletin board. If you have any further questions on
title III/title V delegation concerns, please contact Michael Trutna
at 919-541-5345, Rich Damberg at 919-541-5592, or Julie Andresen at
919-541-5339. For other title 111 issues not involving title V,
please contact Karen Blanchard, who is managing the effort to guide
the implementation of section 112, at 919-541-5647.
Attachment
cc: K. Berry
B. Jordan
A. Schwartz
L. Wegman
ATTACHMENT
QUESTIONS AND ANSWERS TO STRAIGHT DELEGATION ISSUES CONCERNING
SECTIONS 111 AND 112 REQUIREMENTS AND TITLE V
1. How can "straight delegation (i.e., where the State
will implement and enforce the requirement exactly as
promulgated by EPA) of section 112 requirements be
accomplished before and after the approval of a part 70
program?
a. Section 112(l) Rulemakinq Required for Future
Section 112(l) of the Clean Air Act (CAA) provides
the mechanism for approval of programs for the
delegation of Federal standards and programs to the
States: A program submitted by a State under this
subsection may provide for partial or complete
delegation of the Administrator s authorities and
responsibilities to implement and enforce emission
standards and prevention requirements. . . ." This
language in section 112(l) was enacted in 1990 and
replaces that formerly found in section 112(d). Thus,
section 112(l) now provides the exclusive pathway for
delegation of section 112 requirements. Section 112(l)
(5) prescribes the specific requirements for EPA
approval, following
notice and comment rulemaking, of State air toxics
programs, addressing, among other things, delegation of
standards. There is no basis to distinguish this rulemaking in
its application to pre-1990 section 112
standards versus its application to the
"new" standards and programs. As a result, this rulemaking
requirement applies to all future section 112 delegations,
regardless of whether they are for new MACT standards,
infrastructure programs (such as those in sections 112(g) and
(j), or pre-1990 NESHAPS for which a State failed to take
delegation in the past.
Once a State's part 70 program has been approved,
the State typically will not have to submit a separate
request for approval under section 112(l)for
straight delegation of section 112
requirements which apply only to sources subject to the
part 70 program. A separate request is presumptively
not needed for two main reasons: 1) meeting part 70
approval requirements will suffice in meeting the
section 112(l) approval requirements, and 2) approval of
a part 70 program confers the responsibility to
implement and enforce all "applicable requirements"
of section 112 for sources subject to the part 70 permit
program. The extent to which a part 70 program meets
the requirements of
section 112(l) is further discussed in section (d).
States will need to take additional steps to
receive "straight delegation" of section 112
requirements which apply to sources not covered by that
State's part 70 program. For many States, only major
sources will initially be subject to the part 70
program. As a result, certain sources subject to
section 112 requirements will not face part 70
permitting obligations, including area sources deferred
from permitting requirements in the part 70 rule, area
sources deferred from permitting by specific section 112
standards (e.g. dry cleaners), or sources subject to the
112(r) accidental release program but not required to
obtain a part 70 permit.
There are two primary options for obtaining delegation of
requirements as they apply to sources not subject to the part 70
permit program. Both involve section 112(l) rulemaking. The
most administratively streamlined rulemaking option is for a
State to submit a request to EPA for approval of a program for
"straight delegations" under subpart 63.91 of the 112(l) rule.
Here EPA would conduct a 112(l) rulemaking which would provide
for public notice and comment on the State's proposed program for
receiving straight delegation from the EPA for section 112
requirements as they apply to sources outside the part 70 permit
program. Under this program, States would then, without further
rulemaking, receive delegation for specific section 112
requirements upon their request in accordance with the memorandum
of agreement (MOA) between the State and EPA.
The second rulemaking option would involve separate submittals
from the State requesting delegation of specific section 112
requirements as they apply to sources not required to obtain a part
70 permit. The EPA would need to conduct a 112(l) rulemaking for
each individual State request, although "direct final" rulemakings
could be used wherever appropriate (the "direct final" process is
discussed in section (b)). Separate section 112(l) rulemakings may
be appropriate for expedited delegation of section 112 requirements
promulgated before the State receives part 70 program approval (e.g.,
degreasing National Emissions Standard for Hazardous Air Pollutants
(NESHAP), the Hazardous Organic NESHAP, chrome electroplating NESHAP,
and cooling towers NESHAP).
Both of these rulemaking options require submittal of State
demonstrations that the State has adequate legal authority, resources
and an expeditious schedule for implementation. The content of these
submittals is discussed in section (c).
Another option, one which does not constitute section 112(l)
rulemaking but can provide quick transfer of many implementation
responsibilities to States, involves the expanded use of MOA's. Where
a section 112(l) rulemaking is not practical (e.g., short time before
part 70 approval expected), EPA can still enter into an MOA with a
willing State to transfer the effective workload of a particular
section 112 requirement. These MOA's, which can be similar in form
to the pre-1990 delegation practices under section 112(d), can be
used to contract with the State to perform the technical and
administrative implementation of the requirement (and enforcement as
well if the State has adequate
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legal authority to enforce in State court). However, an MOA cannot,
standing alone, be the basis for a formal delegation under section
112(l). Therefore, while this approach is potentially valuable in
certain situations, it would not serve to formally delegate a section
112 requirement and so would not, for example, allow the State to
replace EPA as a point of receipt for required reports or other
information. The EPA Regions and States must weigh the relative
merits associated with this use of MOA's as compared with delegations
accomplished by section 112(l) rulemaking before selecting the most
appropriate means for implementing a particular section 112
requirement.
b. Nature of Section 112(l) Rulemakings by EPA
Procedurally, section 112(l) requires a State submittal of a
request for approval, notice in the Federal Register that EPA has
received a request for approval, a public comment period of at
least 30 days, and notice in the Federal Register that EPA has
approved or disapproved the request. The content of the EPA
rulemaking to transfer the responsibility to implement and
enforce section 112 requirements as promulgated can vary widely.
As discussed in section (d), the substance of a section 112(l)
notice can be extremely short where implementation in large part
depends on the adequacy of resources and legal authority
otherwise required under the part 70 permit program. Where the
State intends to implement and enforce the section 112
requirement as promulgated by EPA, this notice and comment
rulemaking, even where it cannot be combined with the part 70
approval process, can also be expeditiously accomplished in many
cases.
One approach available to expedite future straight delegations
outside of a part 70 program approval is based on EPA's ability to
approve a program for the delegation of section 112 requirements as
promulgated. Such an approval would have a prospective effect in
that it would obviate the need to repeat the notice and comment
procedures of section 112(l) (5) for each delegation. The function
of this rulemaking is to take comment on a mechanism for the transfer
of section 112 responsibilities from EPA to the State, as well as on
the State's general authority and resource strategy to implement that
mechanism. The proposed section 112(l) approval notice would discuss
the delegations mechanisms proposed by the State and would include a
finding that the State has the broad statutory authority necessary to
implement the mechanism, as well as a finding that the State now has
or will be able to obtain the resources necessary to implement and
enforce section 112 requirements.
The approval of a program for straight delegation of section 112
requirements must also be accompanied by an MOA between EPA and the
State which details the mechanism for transfer of responsibilities.
Options for structuring such an agreement are
3
essentially those that existed prior to the 1990 Amendments,
as described in the Good Practices Manual. The MOA must also
establish some method of continuing oversight, so that EPA can
continue to assure that the criteria of section 112(l) (5) are
met. If the State fails to meet these criteria subsequent to
approval of a program for straight delegations because it was
unable to meet its commitment to provide adequate resources,
the auditing and withdrawal mechanism in the section 112(l)
regulations would allow EPA to withdraw approval for all or
part of the program.
The approval of a program for straight delegation
and the actual delegation of existing section 112
standards are not mutually exclusive. A section 112(l)
approval can accomplish both simultaneously if the State
wishes to structure the approval in that way.
Accordingly, as part of any program for straight
delegations, a State that wishes to establish any
delegations for specific requirements under section
112(l) or modify any delegations approved in the past
might submit documentation of adequate authorities,
resources, and expeditious schedule for section 112(l) at
the same time it submits a request to EPA for the program
authorizing straight delegations. Alternatively, a State
could obtain approval of a program for straight
delegations and then accomplish those same specific
delegation actions pursuant to that program.
Where a prospective program is not chosen, the
direct final rulemaking approach may be a procedural
streamlining mechanism available for accomplishing
certain straight delegations. In general, direct final
rulemaking is more likely to be appropriate where the
only action being noticed is the delegation of a single
section 112 standard. In situations where EPA does not
expect any adverse comment upon publication of a notice
of approval, the notice can specify that the approval
would become effective in 30 days unless adverse comments
were received. If adverse comments were received, then
EPA would have to re-propose the approval and provide for
a 30-day comment period. The time and resource savings
from this use of the direct final approach would thus
depend on the correctness of the Agency s judgement
regarding whether or not any adverse comments would be
submitted. For a more complete discussion of the direct
final procedure, see 47 FR 27073 (June 23, 1982).
The content of the Federal Register notice accomplishing a
straight delegation under section 112(l) can also be very
brief. It can be as simple as a re-statement of EPA's findings
concerning the adequacy of statements and/or demonstrations
contained in the State's submittal. The contents of State
submittals are discussed in the next section.
As part of the approval for either the delegation of
a particular standard or of a program for straighdelegation,
thehe
4
Region may consider the appropriateness of one or more partial
delegations which would allow the State to become the point of
receipt for notices and reporting required prior to the
compliance date for a particular section 112 standard or
requirement. Such a partial delegation would precede the more
complete delegation that would occur once the State gains the
ability to fully implement and enforce the standard. The partial
delegation of information-receipt responsibilities may avoid
redundant reporting where the State will be the primary enforcer
of the standard, as will be the case, for instance, for sources
covered by a part 70 program. In the case of approval of a
program for straight delegations, the availability of this type
of partial delegation should be detailed in the MOA that
accompanies the program approval.
Regions must make case-by-case judgements as to the
appropriateness of such a partial delegation based upon the nature of
the particular standard and the likelihood that the State will be able
to implement and enforce the standard for all covered sources on a
timely basis. The shifting of information-receipt responsibilities
would not be appropriate, for example, where the State's schedule for
obtaining enforcement authority may result in sources reaching the
compliance deadline before the State is able to enforce the standard.
To guard against this possibility, any such partial delegation should
be accompanied by an MOA which assures the Region that notices and
reports received by the State will be transferred to the Regional
Office if the
State anticipates it will not be able to enforce the standard on
a timely basis.
c. State Submittals Required for Straight Delegations of
Section 112 Requirements
The EPA will consider a State's submittal for a part 70
operating permits program to be also an implicit request for
approval of a program for delegation of all section 112
requirements as they involve applicable requirements for sources
covered by the State's part 70 program (see next section). In
order to take delegation of section 112 requirements for other
sources, a State will need to provide EPA with a separate
submittal pursuant to one of two options described in this
section.
A submittal for approval of a program for the delegation of
section 112 requirements as promulgated by EPA must meet the
criteria in section 63.91(b). However, the content of a
submittal for approval of such a program will necessarily be
less detailed than a submittal for delegation of a specific
requirement, since the subject of a program approval will be a
more general mechanism for future delegation actions. As noted
in the previous section, the primary purpose of a program
approval is to provide for notice and comment on a mechanism for
5
the future transfer of section 112 standards as promulgated.
The State must therefore indicate in its submittal the type of
mechanism (e.g., automatic or case-by-case delegation)
it intends to use to accept delegation. The details of
this mechanism will be established through the MOA between
the State and EPA. A demonstration of authority to
implement and enforce a particular requirement will occur
at the time of delegation of that requirement pursuant to
the MOA. In the case of a request for approval of the
112(r) accidental release program as promulgated by EPA,
the State must also submit information necessary to meet
the approval criteria specified in section 63.95.
For approval of a program for straight delegations,
the State, pursuant to section 63.91(b) (1), must submit an
opinion from the State Attorney General (for local agencies,
a similar representative) demonstrating that it has the
broad legislative authority necessary to implement the
chosen mechanism for delegation. Authority to implement a
particular standard need not be demonstrated as part of the
opinion, although general enforcement, inspection, and
information gathering authority required by section
63.91(b)(l) must be demonstrated. Once a State has obtained
approval of a program for straight delegations, the EPA will
not require additional Attorney General opinions for each
delegation accomplished pursuant to that program.
Section 63.91(b) (3) requires a demonstration of
resource adequacy and certain descriptions of State
agency organization. Here, the State submittal should
include descriptions of current organization as
appropriate, as well as a description of how the State
clans to obtain and maintain adequate resources to
implement delegations that occur pursuant to the approved
program. As with the requirement for adequate authority,
a demonstration of adequate resources to implement a
particular requirement should accompany requests for
delegation performed pursuant to the program. The
content of this more specific demonstration should be
detailed in the MOA and can be relatively brief,
consistent with prior practice under the 1983 Good
Practices Manual.
The remaining criteria in section 63.91(b) concern
demonstrations associated with the delegation of particular
requirements. For example, section 63.91(b) (2) requires
submittal of copies of all statutes, regulations, and other
material granting authority to implement and enforce the
requirement. Sections 63.91(b) (4) and (5) require
submittal of plans for expeditious implementation and
enforcement, respectively, of the section 112 requirement.
These demonstrations should be provided for in the MOA that
accompanies the program approval, so that EPA can ensure
that these criteria are met at the time each section 112
requirement is delegated and on a continuing basis for as
long as the State retains approval
6
of the program. However, consistent with the prospective nature
of such a program for straight delegations, these demonstrations
will not require the repetition of a rulemaking under section
112(l) (5).
State submittals requesting delegation for individual section
112 requirements (the second option discussed in the previous
section) must also meet the criteria set forth in section 63.91(b)
of the section 112(l) regulation. (Requests for approval of
programs to implement section 112(r) requirements as promulgated by
EPA must also meet the approval criteria specified in section
63.95.) Here section 63.91(b) (1) requires an opinion by the State
Attorney General stating that the State has the necessary legal
authority to implement and enforce the section 112 requirement
exactly as promulgated by EPA, as well as require compliance by
applicable sources with all emission limits, test methods, and
reporting and monitoring requirements specified in the Federal
requirement. The State must also demonstrate that it has adequate
legal authority to bring enforcement actions against noncomplying
sources in State court.
Section 63.91(b) (3) requires in the case of a specific section
112 requirement that the State show it has adequate resources to
implement and enforce the applicable section 112 requirement. A
statement of resource adequacy should suffice where the State has
had experience regulating similar sources through an existing State
requirement. In other cases, the State should show that the
estimated workload for implementing and enforcing the standard does
not exceed available resources (including any grants provided by EPA
for non-part 70 activities).
The EPA wishes to clarify that, in requiring section 112(l)
submittals to have enforcement authority required by section 70.11,
section 63.91 implicitly recognizes the same interim flexibility as
would be the case for a State seeking approval of a part 70 program.
Just as a State may receive interim approval under part 70 for up to
two years if its enforcement authority "substantially meets" the
requirements of section 70.11, a State may receive approval of a
section 112(l) program under the same circumstances and subject to
the same restrictions if its enforcement authority "substantially
meets" these criteria. Were this not the case, a State could obtain
approval of a part 70 program, be required to implement and enforce
all section 112 requirements at part 70 sources, and yet not be able
to receive formal delegation from EPA to implement and enforce those
same requirements. This intent of the section 112(l) rule is
evidenced by statements in the preambles to the proposed and final
rule that a State submittal meeting part 70 criteria would also meet
the criteria for section 112(l) approval. See, e.g., 58 F.R. 29299
(May 19, 1993), and 58 F.R. 62271 (November 26, 1993).
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d. Relationship to Part 70 Program Approval
In order to obtain approval of a part 70 operating
permits program, a State is obligated to incorporate
all section 112 applicable requirements into permits and
assume the primary responsibility for enforcing these
requirements. The part 70 submittal (see April 13, 1993
memorandum entitled "Title V Approval Criteria for
Section 112 Requirements") must guarantee this result by
containing an Attorney General's statement of adequate
legal authority and/or commitments by the Governor to
adopt and implement additional requirements as needed to
assured timely issuance or revision of part 70 permits
which implement in part these section 112 requirements.
The EPA, therefore, considers the approval of the part
70 program to be an excellent contemporaneous
opportunity to approve a program for straight
delegations under section 112(l), to the extent that it
applies to sources subject to the permit program.
The approval notice addressing section 112(l) can
be extremely brief and can largely rely on the
demonstrations required for part 70 approval. This is
because the part 70 approval will consider essentially
the same approval criteria with respect to legal
authority and resource adequacy required to
be met under section and will provide an
adequate and enforce section 112 requirements at part 70
sources. Because part 70 approval is conditioned on a
State s ability to implement and enforce section 112
requirements for sources subject to the part 70 program,
EPA will treat the request for approval under part 70 as
a request under section 112(l) for approval of a program
for straight delegation of all section 112 requirements
applying to part 70 sources subject to the permit
program. The EPA will so indicate this position in
notices proposing to approve the part 70 program.
Unless a State specifically requests otherwise, EPA
intends to establish this program for prospective
straight delegations at the same time that a part 70
program would become effective for that State. This
same rulemaking could also accomplish straight
delegations for any existing section 112 applicable
requirements for which the State had not yet taken
delegation.
As discussed in section (b) above, the approval of
a program for straight delegations may also, for certain
standards, allow for the partial delegation of
information-receipt responsibilities prior to the
delegation of enforcement responsibilities. Such
partial delegations may be particularly useful where
there is some delay between Federal promulgation and the
time when the State is able to enforce the Federal
Standard. This will sometimes occur in the context of
the part 70 program. In these cases, partial delegation
of the information-receipt responsibilities with regard
to part 70 sources may facilitate the permitting of these
sources, while reducing
the reporting
8
burden. As noted in the preceding discussion, partial delegations
of this sort will not be appropriate in all instances, and should not
be undertaken unless there is assurance through an MOA that any
information received by the State will be timely transferred to EPA
where EPA will carry an enforcement responsibility for any period of
time. This understanding can be included within the more
comprehensive part 70 implementation agreement.
One additional concern relates to the timing sequence of these
two rulemakings. Section 112(l) (5) requires that EPA's notice and
comment rulemaking occur within 6 months of a complete State
submittal, while the rulemaking in response to a part 70 submittal by
a State needs to occur within 12 months of a complete State
submittal. Although approval under section 112(l) in not necessarily
a precondition for part 70 approval, a State may want to propose the
two rulemakings in the Federal Register concurrently. In such cases,
the EPA Region can delay the start of the 6-month clock associated
with section 112(l) rulemaking until the time that the part 70
submittal for the State is proposed for approval unless the State
specifically requests a different schedule for-approval under section
112(l). This delayed start will facilitate compliance with section
112(l)'s six month timeframe for approval in cases where the
presumption of an approved part 70 program is needed to demonstrate
adequate legal authority and resources. That is, unless a proposed
approval of the part 70 program occurs or an independent
demonstration of adequacy is provided, a submittal for section 112(l)
rulemaking would be incomplete. Thus, a simultaneous proposal for
approval of a submittal under- part 70 and section 112(l) would serve
to start the 6-month time period for conducting section 112(l)
rulemaking. This strategy also offers sufficient flexibility to
complete the part 70 rulemaking within the year following a complete
submittal from the State.
The procedural steps necessary before a State may incorporate a
federally-promulgated standard into the part 70 permit will vary as a
matter of State law. In several instances this may require
rulemaking at the State level (perhaps through incorporation of the
Federal requirement by reference). A State may also have mechanisms
available to satisfy part 70 requirements that allow incorporation of
a Federal standard directly into the part 70 permit without any
interim steps to promulgate the standard through State rulemaking or
to seek formal delegation of the standard from EPA. Regardless of
the necessity under State law for a formal delegation, EPA will
consider the formal delegation for all delegatable provisions to have
occurred, at the latest, when the part 70 permit is issued, so that
the point of receipt for any reporting requirements will shift from
EPA to the State at that time (unless some earlier time is
established pursuant to section 112(l) rulemaking).
9
The EPA may request a review of individual State rulemaking
and/or other actions taken to ensure that the needed legal authority
and/or technical capabilities are in place at the State level in time
for their use in the part 70 permit process. Such evaluations should
be limited to the exceptional case where EPA has strong reasons to
believe that legal and/or resource problems exist. Thus, unless a
State is legislatively barred or has made a specific request for
delegation under section 112(l), EPA will presume that the State
receiving approval for its part 70 program will implement the Federal
sections 111 and 112 requirements as promulgated and will adopt any
new authority at the State level needed to assure timely inclusion as
applicable in part 70 permits in order to maintain its part 70
approval.
2. How can section 111 standards be transferred before and after
the approval of a part 70 program?
Section 111(c), which governs the transfer of new source
performance standards (NSPS), was not changed by the 1990 Amendments.
Therefore, the prior options for delegating such standards remain in
effect.
Approval of part 70 programs requires, in part, that States must
be able to implement and enforce current section 111 standards and
commit to take any necessary steps to implement and enforce future
standards promulgated by EPA so as to assure the timely issuance or
revision of part 70 permits. Therefore, this approval process
provides a new and convenient opportunity to establish a prospective
delegation agreement with the State to implement future NSPS, as well
as to implement NSPS in effect at this time. Accordingly, EPA will
assume that the part 70 submittal is an implicit request to establish
a delegation agreement for the State to implement, as promulgated by
EPA, all section 111 requirements applicable to sources subject to
the part 70 program. States retain the option, however, of
submitting separate requests for delegation authority pursuant to
section 111 when this arrangement for automatic delegation is not
appropriate. Even in this case, EPA will explore options with
individual States to establish the presumption where possible that
the point of receipt for any section 111 reporting requirement will
shift from EPA to the State and any separate delegation requests will
involve petitions to obtain the remaining implementation and
enforcement responsibilities.
3. Are there portions of any section 111 requirement which cannot be
delegated to States?
Most provisions of these requirements can be delegated to
States. However, as stated in the Good Practices for Delegation of
NSPS and NESHAPS (February, 1983), certain activities such as
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issuance of certain waivers, approval of alternate test
methods and monitoring, and some general authority provisions
cannot be delegated.
4. Must States accept delegation for all existing and
all new sections 111 and 112 standards, or only for
those for which applicable sources currently exist in
the State?
Under current part 70 rules States must have adequate
legal authority to issue or revise part 70 permits in a
timely fashion to all major sources of hazardous air
pollutants. States may also opt to subject nonmajor sources
covered by a particular national standard to their part 70
permit program. Explicit legal authority to implement a
particular standard, however, may not be necessary if the
State determines that there are presently no sources located
in the State subject to a given standard, and there is no
likelihood that such a source would construct in the State in
the immediate future. It is important that States acquire
the appropriate legal authority on a timeframe commensurate
with the probability that sources will locate in the State.
The State must be able to demonstrate that it can acquire any
necessary legal authority quickly enough to issue a timely
part 70 permit, or revision if a new source of this type were
to locate in the State. The States are encouraged to provide
for a strategy to address such a prospect (e.g., through
milestones in a MOA or part 70 implementation agreement).
5. If a State applies under section 112(l) to substitute a
State requirement as being no less stringent, must the State
implement the otherwise applicable section 112 requirement
"as is" until it receives section 112(l) approval?
Part 70 requires States to issue permits in a timely
fashion which assure compliance with all applicable
requirements, including those developed pursuant to
section 112. The section 112 requirements are those
promulgated by EPA, unless the State obtains section
112(l) approval to substitute a specific State
requirement for a Federal requirement. If the State
submits its own "equivalent" requirement for approval
under section 112(l), the State must still incorporate
the applicable Federal section 112 requirements into
part 70 permits until it receives EPA approval to do
otherwise.
A State may be able to obtain some relief in this
interim period by structuring its transition plan such
that sources affected by a different State requirement
could be acted on last during the 3-year phase-in of the
part 70 program. Another
possibility for relief is for the State to issue a permit
that includes both its own State standard (designated in
the permit at issuance as not federally enforceable as required
by section
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70.6(b) (2)) as well as the Federal standard it would replace up
section 112(l) approval. This permit would contain a condition
that upon EPA's approval of the State requirement pursuant to
section 112(l), the permit will be administratively amended such
that the former requirement would supersede the latter as the
federally enforceable requirement.
6. Must States have delegation of authority for all existing
sections 111 and 112 requirements prior to submitting their
operating permit programs? If not, by what date must States take
delegation of these standards--prior to EPA's final program
approval or prior to issuing a title V permit to a source covered
by one of these standards?
States must acquire any new legal authority as needed to
implement both sections 111 and 112 -in a timeframe sufficient to
assure timely issuance or revision of part 70 permits. The
procedural steps necessary before a State may incorporate a
federally-promulgated standard into the part 70 permit will vary
as a matter of State law. A State may have mechanisms available
to satisfy part 70 requirements that do not involve a delegation
from EPA under sections 112(l) for section 112 requirements. For
instance, State law may allow incorporation of a Federal standard
directly into the part 70 permit without any interim steps to
promulgate the standard through rulemaking or to seek formal
delegation of the standard from EPA. Regardless of the necessity
under State law, EPA will consider delegation pursuant to section
112(l) to have occurred for all applicable requirements which can
be delegated, at the latest, when the part 70 permit is issued,
so that after part 70 program approval the point of receipt for
any reporting requirements required of sources subject to the
permit program will shift from EPA to the State.
For applicable section 112 requirements in effect on November
15, 1993 (the date for submittal of part 70 programs),
the States must demonstrate adequate existing legal authority to
implement these requirements presumptively by the effective date of
the part 70 program. Only under unusual circumstances could the
Region negotiate with the State a later date to acquire such
authority for a particular standard, but it still must be consistent
with the timely issuance of permits to applicable
sources as they are phased-in as part of the part 70 program. This
could only be done if the State presents a detailed implementation
strategy to do so, has no legislative impediment to the delegation,
and demonstrates to the Region that the legal authority necessary to
accomplish this delegation will be secured in a timely manner.
7. If a State intends to defer area sources from title V
applicability, can the State accept delegation of a section 111
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or 112 requirement only for the major sources which exist in the State
and not for the nonmajor or area sources to which the standard may also
apply?
Although EPA strongly encourages States to take full delegation of
all section 112 requirements, States may submit a request to EPA for
partial delegation of such requirements. In addition to previously
discussed options for shifting the initial implementation
responsibilities of certain section 112 requirements (see response to
question 1), partial delegations can also be accomplished with respect
to source coverage. For example, the request for delegation may
exclude those nonmajor sources which the State within its discretion
under part 70 has allowed to be exempt from the requirement to obtain a
part 70 permit. The EPA may partially delegate such standards to a
State and withhold delegation of the area sources in that category for
EPA implementation. However, this type of partial delegation should be
reserved for those rare cases where total delegation does not meet the
requirements of title V. To qualify for this delegation, the State
must demonstrate that such a delegation would only apply to source
categories subject to a section 111 or 112 standard which can easily be
separated into exempt and subject sources (i.e., not involve difficult
section 111 or 112 applicability decisions)1 and only to sources which
are not otherwise required to get a part 70 permit (e.g., are not major
sources due to emissions of some criteria pollutant).
8. Will EPA have to issue operating permits to sources if States do
not take timely delegation of a particular MACT standard? If EPA has
to issue the permit, will it only cover the MACT requirement(s), or
will it cover all CAA requirements applicable to the source?
The EPA will object to any proposed part 70 permit which does not
contain sufficient terms and conditions to assure compliance with all
applicable requirements of the CAA, including those of section 112. If
the State does not adequately respond to an EPA objection, (e.g., for
failure to include a recently established section 112 standard)1 the
Agency must veto the permit and issue a Federal permit addressing all
applicable CAA requirements (not just those pertaining to the
deficiency identified by EPA). A failure to adopt new legal authority
as needed to impose a new section 112 standard would likely lead to the
issuance of a comprehensive EPA permit for sources subject to the new
section 112 standard. A significant number of such situations may lead
EPA to conclude that the State has failed to administer its approved
part 70 program and that EPA should implement a Federal title V program
in that State.
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9. Will the delegations of section 112 standards be tracked on
national data base? Can the delegations themselves be tracked and
implemented through the AFS Permitting Enhancements Title V data
management system?
There are currently no plans to track the national progress in
accomplishing the delegations of section 112 standards. Individual
Regions may choose to use a MOA or a part 70 implementation agreement
to establish milestones for State enhancement of their legal authority
as needed to implement section 112 standards and to submit (at the
option of the Region) evidence of this enhancement (e.g., rules or
policy statements).
10. What type of sections 111 and 112 commitments can qualify a State
submittal for part 70 program approval?
In order to obtain full approval from EPA, the part 70 submittal
must contain authority and/or commitments adequate to ensure that the
part 70 permit will assure compliance with all applicable sections 111
and 112 requirements. Where general statutory authority to issue or
revise permits implementing sections 111 and 112 is present, but the
Attorney General is unable to certify explicit legal authority to carry
out certain specific requirements at the time of program submittal, the
Governor may instead submit commitments to adopt and implement
additional regulations as needed to issue part 70 permits. The EPA
will rely on these commitments in granting part 70 program approvals,
provided that (1) the underlying legislative authority would not
prevent a State from meeting the commitments, and (2) the State can
demonstrate the commitments will be satisfied by the time the State has
to issue or revise permits to sources subject to the sections 111
and/or 112 requirements for which the State now lacks adequate
authority to implement.
The nature of such commitments can vary widely depending on what
is needed by the State to implement and enforce a particular standard.
For example, one State might be able to carry out a particular section
111 or 112 requirement under its existing program while another State
might require rulemaking to allow it to enforce this Federal
requirement. The commitments contained in the letter of submittal from
the Governor should outline the timetable by which any required
additions to existing legal authority would be acquired and any major
interim milestones needed to ensure that this deadline will be met.
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