Review of~taie ~m~lem~ntation Plans and Revisions for Enforceabilityand Legal Sufficiency



# Review of 

# State Implementation Plans and Revisions for Enforceability and Legal Sufficiency

UNITED STATES ENVIRONMENTAL PROTECTION AGE~CY 

### Section 110: 

### State Implementation Plans September 23,1987 

## MEMORANDUM SUBJECT: Review ofState Implementation Plans and Revisions for Enforceability and Legal Sufficiency 

### FROM:
J. Craig Potter Assistant Administratorfor Air and Radiation Thomas 

### L.Adams Jr. Assistant ~dministrator for Enforcement and ComplianceMonitoring

http:lles.epa.govloecalorelaedlcomplccomplc8.html(l of 12)[516102 10:13:45 AM]Review of~tak lmplemintarion Plans and Revisions for Enforceability and Legal Sufficiency Francis S. Blake General Counsel Office of General Counsel TO: Addressees 'One critical function that your offices perform is to assure that regulations developed for stationary sources by the States under the Clean Air Act are enforceable and legally sufficient.

. Our regulations require that the state implementation plans

("SIPs") must "be adopted as rules and regulations enforceable (emphasis added) by the State agency" (40 C.F.R. $5I .281 (1987)). We are concerned that review of SIPs for enforceability has not been receiving adequate attention. The Agency sometimes experiences difficulties in its efforts to enforce the current rules because they are not sufficiently clear. The Regional Offices are atthe forefront of the federal SIP approval process. Thepurpose ofthis review necessary to assure that all SIPplans and revisions are enforceable and in conformance with the Act. Please do not forward for approval SIPs which fail to satisfy the enforceability criteria.in this memorandum. 

### Background Recent information indicates that the attention being paid to SIP approvals 

### is declining, particularly for enforceability. The Office of General Counsel reviews regulations as to their adequacy under applicable law and Agency policy, but not for enforceability. This void is not being filledby other offices. Often, the problems with enforcing the regulations are not immediately obvious and only become known where a case or issue focuses onthe particular regulation. At the October 1986 Annapolis meeting ofAir program Directors and Regional Counsel Air Branch Chiefs, a number ofproblems in recent enforcement cases due to difficulty in interpreting and enforcing regulations 

### were discussed. With the recent work being done to address the nonattainment problem, it is even more critical that regulations be clear and enforceable. It is appropriate that the ~i~ional air compliance staffand the
.gov/oecalore/aedlcornplc~rnp/c8.html(2 of 12) [516/02 10:13:45 AM]Review of~tat'e ~rn~lernehation Plans and Revisionsfor Enforceabilityand Legal Sufficiency Regional Counsel's Office have primary responsibility for this enforceability review because they have the most direct experience in compliance and rule interpretation. They also have resources allocated through their workload models specifically for SIPreview. 

### Timing ofReview The Regions should try to review developing State SIP provisions prior to final approval by the State, when the provisions are at their most malleable stage. In line with this, each Region should provide its States with 

### a copy of the implementing guidance associated with this memorandum and. a briefing which.outlines the enforceability requirements for new 

### SIP submittals. If we provide the States with more explicit guidance and make earlier contacts to resolve problems, we can avoid instances where EPA is pressured to settle for a flawed regulation only because it isbetter than its predecessor. Enforceability Criteria 

### Your review should ensure that the rules in question are clearly worded and explicit in their applicability to the regulated sources. Vague, poorly defined rules must become a thing ofthe past. SIP regulations that deviate from this policy are to be disapproved pursuant to Section 11 0(a) ofthe Clean Air Act, with appropriate references in the C.F.R. Specifically, we are concerned that the following issues be directly addressed. The rule should 

### be clear 

### as to who must comply and by what date. The effect, if any, of changed conditions (e.g., redesignation to attainment) should be set forth. The period over which compliance is determined,and the relevant test method to be used should be explicitly noted. Provisions which exempt facilities under certain sizes or emission levels must identify explicitly how such size or level is determined. Also, provisions which allow for "alternate equivalent techniques" or "bubbles" or any other sort of variation of the normal mode of compliance must be completely and explicitly

. defined and 

### must make clear whether ornot EPA case-by-case approval is required to make such a method of compliance federally effective. 'Review ofstate implern&tation Plansand Revisionsfor Enforceability and Legal Sufficiency 

### conclusion SIPrevisions shouldbe written clearly, with explicit language to implement their intent.The plain language of all rules, as well as the related Fedefal Register notices, should be complete, clear and consistent with the intended purpose of the rules. Specific review for enforceabilitywiIl be a further step in improvingthe overall SIP process and structure. We have attached detailed guidance to assist you in implementing this memorandum. 

### Attachment
/ Addressees: Regional. Administrators Regions 

### I-X Regional Counsels Regions 

### I-X Air Management Division Directors Regions I, I11 and IX Air and Waste Management Division Director 

### Region I1 Air, Pesticides, and Toxics Management Division Directors Regions IV and VI Air and Radiation Division Director Region V



### . Air and Toxics Division Directors Regions 

### V~I, VIII and 

### X

cc: Deputy Regional Administrators Region 

### I-X

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# I-x Air Compliance Branch Chiefs Regions 11,111, W, V, VI, IX Air Program Branch Chiefs Regions I-X Darryl Tyler, Director Control Programs Development Division Gerald Emison, Director Office of Air Quality Planning and Standards

cc: John S. Seitz, Director Stationary SourceCompliance Division Office of

### Air Quality 

### Planning and Standards Alan W. Eckert Associate General Counsel Air Division 

### Michael S.

### Alushin

, Associate Enforcement Counsel Air Enforcement Division UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

SUBJECT: Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency ' FROM:

http:lles.epa.govloecalorelaedlcomp/ccom/.html (5 of 12) [516102 10:13:45AM]ReviewofState Implementation Plans and Revisions for Enforceability and LegalSufficiency Michael S.Aiuchin Associate Enforcement Counsel for Air Enforcement Alan 

### W. Eckert Associate General Counsel Air and Radiation Division John S. Seitz,Director Stationary Source Compliance Division Office of Air Quality Planning and Standards 

### TO: Addressees This is to provide implementing guidance on the memorandum issued by J. Craig Potter, Thomas Adams and

. Francis 

### Blake on this date relating to review of SIPplans and revisions for enforceability 

### and legal sufficiency. We urge you to provide copies of these memoranda to your State Agency Directors.

This guidance applies to all SIP proposals which have not completed the state or local agency legal and procedural requii-ements for SIPS.For proposals that have not yet been submitted to the Regional office for action, the state and local agencies have forty-five (45) days from the date of this guidance to submit such proposals for review in order for the proposal to be considered underprevious'procedurei. 

### SIP packages currently in HeadquBrters will undergo the usual review but will be returned to the Regions ifthey contain deficiencies which raise significant questions as to whether the regulation would be &forceable. ' Enforceability Criteria The notion of enforceability encompasses several concepts. At the most basic level, a regulation must be within the statutory' authority ofthe promulgating agency. For example, some

http:/les.epa.govloecalore/aedlcomplccomplc8.htm1(6 of 12) [516102 10:13:45 AM]Review of StateImplementation Plans and Revisions forEnforceabilityand Legal Suficiency states have statutory restrictions or prohibitions on the promulgation ofregulations more restrictive than the federal counterpart. Although we should generally defer to a State's interpretation of the scope of its authority, when there is real doubt we should, at 

### a minimum, consult the responsible State Attorney to be certain the issue has been considered and resolved. When appropriate, an opinion letter shouldbe obtained from the State Attorney General. Please ensure that the following additional issues are directly addressed. 

### Appiicability
It should be clear as to whom the regulation applies. The SIP should include a description of the types of affected facilities. The rule should also state in which areas the rule applies (entire state, specific counties, nonattainment, etc.) and advise the reader that State administrative changes require a formal SIPrevision. Also, some regulations mi&t require a certain percentage reduction from sources. The regulation should be clear as to how the baseline from which such a reduction is to be accomplished is set. In some cases it may be necessary for enforcementpurposes and independent of Clean Air Act requirements for the SIPto include an inventory of allowable and actual emissions from sources in the affected categories in order to set the above baseline. 

### Time The regulation should specify the required date of compliance. 

### Is it upon promulgation, orapproval by 

### EPA, or a future date certain? Future effective dates beyond the approved or proposed attainment date should not be allowed unless the related emissionsreductions are not needed for attainment. Also, the regulation should specify the important dates required ofany compliance schedule which is required to be submitted by the source to the state. Effect of Changed Conditions If changed circumstances affect an emission limit or otherReview of Statc ~rn~lernhntation Plans and Rsvisionsfor Enforceabilityand ~k~al Sufticiency 

### requirement, the effect of changed conditions should be clearly specified. However, you should not approve state regulations which tie the applicability of VOC control requirements to the nonattainment status of the area and allow for automatic

### nullification ofthe regulations ifthe area is redesignated to an attainment status. Such regulations should continue to apply if an area is redesignated from nonattainment to attainment status unless 

### a new maintenance demonstration supporting a change in therule's applicability is submitted and approved by EPA. 

### Standard

### of Conduct The regulation must be sufficiently specific so that a source is fairly on notice as to the standard it must meet. For example, "alternative equivalent technique" provisions should not be approved without clarification concerning the time period over which equivalency is measured as well as whether the equivalency applies on a per source orper linebasis or is facility wide. 

### Incorporation

### by Reference Some, federal regulations are inappropriate for adoption by reference. For example, a state intending to enforce PSD

. 

### regulations adopted by reference must adopt 40 C.F.R. $52.21, not 

### 40 C.F.R. $51.166, as only the former is written in a form imposing obligations on permit applicants. Even then, changes may have to be made to take into account the difference between the State's situation and EPAts. 

### TransferEfficiency Some stateshave attempted to provide particular VOC sources with relaxation's of compliance limits in return for improvements in the efficiency with which the sources use the pollutant producing material. Any rules allowing transfer

. 

### efficiencytobe used in determining compliance must be explicit as to when and under what circumstances a source may use improved transfer efficiency as a substitute for meeting the SIP limit. Such provisions must state whether EPA approval is required on a case-by-case basis. Also, such

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### . . Review of State Implementation Plans and Revisions for Enforceabilityand Legal Sufficiency 

### provisions may not simply reference the NSPS auto coating tables for the transfer efficiency. The improvement should be demonstrated through testing and an appropriate.testmethod should be set forth. Implied improvements noted by the NSPS auto coating TE table are not tobe accepted at face value. Compliance Periods SIPrules should describe explicitly the compliance time frame associated with each emission limit (e.g. instantaneous, stack test, 

### 3 hour average or daily). The regions should not assume that a lack of specificity implies instantaneous compliance. 

### - The time frame or method empIoyedmust be sufficient to protect the standard involved. Equivalency Provisions and Discretionary Emission Limits Certain provisions allow sources to comply via "bubbles" or "alternate equivalent techniquesfiorthrough mechanisms "as approvedby the Director." Theseprovisions must make it clear as to whether EPA approval of state granted alternative compliance techniques is required on a case-by-case basis in order for the changed mode of compliance to replace the existing federally enforceable requirement. 

### IfEPA case-bycase approval will not be required, then specific, objective and replicable criteria must be set forth for determining whether the new arrangement is truly equivalent in terms of emission rates and ambient impact. Such procedures must lie consistent with the control levels specifiedin the overall SIP control strategy and must meet other EPA policy requirements, including the "Emissions Trading Policy", 51 

### Fed. Reg. 43814 (1

### 986),in relevant instances. Recordkeeping The SIPmust state explicitly those records which sources are required to keep to assess compliance for the time frame specified in the rule. Records must commensurate with regulatory 'requirements, and must be available for examination on request. The SIP must give reporting schedules and reporting formats. For example, these rules 

### must require daily records if the SIPrequires daily

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.Review of Statc implementation Plansand Revisions for Enforceabilityand Lcgal Sufficiency compliance. Additionally, the recordkeeping must be required such that failure to do sowould be a separate violation in itself. 

### Test Methods Each compliance provision must list how compliance is to be determined and the appropriate test method to 

### be used. The allowableaveraging times should be explicit. Both the test method and averaging times employed must be sufficient to . protect the ambient standard involved. 

### Exemptions If sources under a certain size are exempted from control requirements, the regulation must identify how the size of a particular source is to be determined. 

### Malfunction andVariance Provisions Any malfunction or variance exemptions must be clear in their substantive application and in how they are triggered. The rule must specify what exceedances may be excused, how the standard is to be applied, and who makes the determination. 

### Conclusion
We appreciate your attention to this matter and hope that the specific review for enforceability will be a further step in improving the overall 

### SIPprocess and structure. Toassist you, we have attached an enforceability checklist. This checklist should be included as part ofyour technical supportpackages 

### in all future SIP packages. Please contact the appropriate staff attorney in the Office of General Counsel or the Office ofEnforcement and ComplianceMonitoring should you have any questions concerning issues of enforceability in particular instances. Please contact Tom Helms, OAQPS, FTS-629-5526, for other questions concerning implementation of this guidance. 

### Attachment

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### Addresses: Regional Administrators Regions I-X Regional Counsels Regions I-X Air Management Division Directors Regions I, 

### I11 and IX Air and Waste Management Division Director Region I1 Air, Pesticides, and Toxics Management Division Directors Regions IV and VI Air and Radiation Division Director Region V Air and Toxics Division Directors Regions'VII, VIII andX cc: Deputy Regional Administrators Regions I-X Regional Counsel Air Contacts Regions I-X Air Compliance Branch Chiefs Regions 11,111, IV, 

### V, Vi, and IX Air Program Branch Chiefs 

### Regions I-X Darryl Tyler, 

### Director Control Programs Development Division

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