MEMO TO FILE

DATE: July 8, 2013

SUBJECT: Southern Ute Indian Tribe

, Delegation of Authority for S ection s 111(c) and 112(l) of the

Clean Air Act Amendments of 1990

,

FROM: Kyle Olson & Victoria Parker

- Christensen , EPA Region 8 Air Program

TO: Docket

The Southern Ute Indian Tribe (Tribe) requested delegation of authority for New Source Performance

Standards (NSPS), Section 111 Clean Air Act Amendments of 1990 (CAA), and National Emission Standards for Hazardous Air Pollutants ( NESHAP), Section 112 CAA, in a letter to the US EPA Region

8 (Region) Regional Administrator dated July 3, 2012

. The Tribe requested approval and delegation of section 111 and section 112 progr ams including straight delegation of unchanged standards for part 70

and non

- part 70 sources

.

The request letter with attached submittal was review and determined to meet the criteria for section 111(c) and 112(l)(5) as outlined in 40 C.F.R. Part 63 subpart E, Approval of State Programs and Delegation of Federa l Authorities, §§63.90

– 63.99

. The full approval for the Tribe’s section 111 and section 112 programs was published in 7 8 FR 40635 ( 2013

- 7

- 8 ) and was effective on July 8, 2013

.

This memorandu m discusses the regulatory mechanism for delegating authority to the Tribe and basis for the Region’s decision to approve the Tribe’s request.

Regional Analysis of Delegation Request

When the Region received the Tribe’s request we asked ourselves the following questions:

1. What did the Tribe request?

2. What is the regulatory basis and mechanism for delegating authority to the Tribe?

3. Does the Region have the authority to grant their delegation request?

4. Did the Tribe submit the appropriate information to su pport their delegation request ?

5. Did the submitted information meet the approval criteria?

The answers to those questions are:

1. The Tribe requested approval and delegation of CAA section s 111 and 1 12 programs including straight delegation of unchanged section s 111 and 112 standards for part 70 and non

- part 70

sources. 2. R egulatory basis for d elegation of authority is found in CAA subsections 111(c) and 112(1) and 40 CFR part 63, subpart E, "Approval of State Programs and Delegation of

Federal Authorities. "

3. Yes, t he Region has the authority to delegate CAA section s 111 and 112 standards and programs.

4. Yes, t he Tribe submitted the regulatory required information to support their delegation request.
5. Yes, the s ubmitted i nformation met the approval criteria.Th e discussion in the following section s supports the answer s to each question and provide s the basis for the Region’s decision to approve the Tribe’s request.

Regulatory Basis and Mechanism for Delegatin g Authority to the Tribe

The regulatory basis for delegation of authority is found in CAA subsections 111(c) and 112(1)

. The federal regulations implementing section 112(l) are found at 40 C.F.R. Part 63 subpart E, Approval of State Programs and Delegation of Federal Authorities, §§63.90

– 63.99.

Sections 111(c) and 112(l) state:

Section 111(c) State implementation and enforcement of standards of performance (1) Each State may develop and submit to the Administrator a procedure for implementing and enforcing standards of performance for new sour ces located in such State. If the Administrator finds the State procedure is adequate, he shall delegate to such State any authority he has under this chapter to implement and enforce such standards.

Section 112(l) State programs (1) In general

Each State may develop and submit to the Administrator for approval a program for the implementation and enforcement (including a review of enforcement delegations previously granted) of emission standards and other requirements for air pollutants subject to th is section or requirements for the prevention and mitigation of accidental releases pursuant to subsection (r) of this section. A program submitted by a State under this subsection may provide for partial or complete delegation of the Administrator’s autho rities and responsibilities to implement and enforce emissions standards and prevention requirements but shall not include authority to set standards less stringent than those promulgated by the Administrator under this chapter.

The program overview from t he regulations implementing section 112(l) subpart E, §63.90 states:

The regulations in this subpart establish procedures consistent with section 112(l) of the Clean Air Act (Act) (42 U.S.C. 7401

– 7671q). This subpart establishes procedures for the

appr oval of State rules, programs, or other requirements such as permit terms and conditions to be implemented and enforced in place of certain otherwise applicable section 112 Federal rules, emission standards, or requirements (including section 112 rules pro mulgated under the authority of the Act prior to the 1990 Amendments to the Act). The authority to implement and enforce section 112 Federal rules as promulgated without changes may be delegated under procedures established in this subpart.

In this proce ss, States may seek approval of a State mechanism for receiving delegation of existing and future unchanged Federal section 112 standards. This subpart clarifies which part 63, subpart A General Provisions authorities can be delegated to States. This subpa rt also establishes procedures for the review and withdrawal of section 112 implementation and enforcement authorities delegated through this subpart. This subpart also establishes procedures for the approval of State rules or programs to establish limitat ions on the potential to emit pollutants listed in or pursuant to section 112(b) of the Act.

Region 8 authority to delegate CAA sections 111 and 112 standards and programsThe authority to approve State procedures for implementing and enforcing section 111(c) NSPS for new sources and to delegate the authority to implement and enforce Federal NSPS was delegated from the EPA Administrator to the Regions. In Region 8 this authority was redelegated to the Assistant Regional Administrator, Office of Partnerships and Regulatory Assistance previously known as Office of Pollution Prevention, State and Trib al Assistance.

The delegation is found in the national Delegations of Authority, 1200 Delegations Manual, Chapter 7

– Clean Air Act, 7

- 2 Approval of State NSPS Plans and the Region 8 Delegation Manual, R8.1200. The regional version of the d elegation of a uthority 7

- 2 is given below:

R8.1200 07/18/1997 CLEAN AIR ACT

7

- 2.. Approval of State NSPS Plans 1. AUTHORITY. To approve State or local agency procedures for implementing and enforcing standards of performance for new sources located in such State or p ortion thereof, and to delegate to such State or local Agency the authority to implement and enforce Federal new source performance standards in such State or portion thereof, pursuant to the Clean Air Act (CAA), Section 111(C).

2. TO WHOM DELEGATED. Assi stant Regional Administrator, Office of Pollution Prevention, State and Tribal Assistance (P2S&TA).

3. LIMITATIONS. The Assistant Regional Administrator, Office of Pollution Prevention, State and Tribal Assistance (P2S&TA) must consult with the Office of Regional Counsel when exercising this authority.

4. REDELEGATION AUTHORITY. This authority may not be redelegated.

5. ADDITIONAL REFERENCES. 40 CFR 60.

The authority to approve or disapprove state requests to implement and enforce unchanged Federal

sec tion 112 emission standards and to notify the State of such actions was delegated from the EPA Administrator to the Regions. In Region 8 this authority was redelegated to the Assistant Regional Administrator, Office of Partnerships and Regulatory Assistanc e previously known as Office of Pollution Prevention, State and Tribal Assistance.

The d elegation is found in the national Delegations of Authority, 1200 Delegations Manual, Chapter 7

– Clean Air Act, 7

- 100 Approval of State Rules and Programs for Hazardous Air Pollutants, section 112(l) and Region 8 Delegation Manual, R8.1200. R egional delegation references conditions ( 1.c., 1.d ., 1.e. and 1.h.) that are found in the national delega tion document but are not in the regional document. These citations refer to delegation options other than straight delegation. The regional version of d elegation of authority 7

- 100 is given below:

R8.1200 12/20/1996 CLEAN AIR ACT

7

- 100.. Approval of S tate Rules and Programs for Hazardous Air Pollutants

1. AUTHORITY. a. To approve or disapprove State requests to implement and enforce unchanged Federal section 112 emission standards, pursuant to subsection 112(1) of the Clean Air Act, using

criteria defi ned in 40 CFR 63.91, and to notify the State of such actions.f. To make completeness

- determinations pursuant to 40 CFR 63.91(a)(1), and to notify the

State of such determinations. g. To make information requests pursuant to 40 CFR 63.96(a).

2. TO WHOM DELEGATED. Assistant Regional Administrator, Office of Pollution Prevention, State and Tribal Assistance (P2S&TA).

3. LIMITATIONS. Prior to exercising authorities 1.c., 1.d., 1.e. and 1.h., the Assistant Regional Administrator, Office of Pollution Preven tion, State and Tribal Assistance (P2S&TA) shall afford the Assistant Administrators for Air and Radiation, Enforcement and Compliance Assurance, and Solid Waste and Emergency Response (as applicable), and the General Counsel (Headquarters offices) an oppo rtunity to review, and if necessary nonconcur on, a Region's proposed decision within 15 days after the regional office submits the draft final Federal Register notice to each of these Headquarters offices. EPA Headquarters will evaluate the need for a non

- concurrence role three years from the

- date on which this delegation is approved.

4. REDELEGATION AUTHORITY. Authority 1.a. may not be redelegated. Authorities 1.f. and 1.g. may be redelegated to the Deputy and Associate Division Director level, but not

f urther.

5. ADDITIONAL REFERENCES. a. Subsection 112(1) of the Clean Air Act. b. 40 CFR part 63, subpart E, "Approval of State Programs and Delegation of Federal

Authorities." Delegation of Authority for Part 63 Standards from Region 8 to States

Region 8 sent three (3) letters to states explaining the procedures and conditions for straight delegation

and automatic delegation of section 112 standards. Over time the Region went from requiring written requests for delegation of part 63 standards to automatic delegation of standards to the states. The Region sent the following three (3) letters each state air director and an email to the Tribe’ s program manager for the Air Quality Program :

1. Procedure to delegating section 112 requirements to state agencies date d May 1995

2. Delegation Procedures for Section 112 Requriements dated May 16, 2000

3. Procedures for Partial Delegation of National Emission Standards for Hazardous Air Pollutants dated October 11, 2011

4. Email to Brenda Jarrell,Partial Delegation of Part 63 Sta ndards dated April 3, 2012

The automatic delegation process has been used since May 2000 . O nce a state effectively incorporates into state regulations an unchanged section 112 requirement and the regulation becomes effective, then the state automatically has delegation to impement and enforce the section 112 requ i rement for both area and major sources. All Region 8 states use the “straight delegation” option for adopting unchanged regulations by incorporation by reference into state regulations per §63.9 1

.

Tribe ’s submittal to support their delegation request

The tribe submitted for review and approval the Reservation Air Code, the Reservation Air Program Operating Permit Program, and the Reservation Air Program Operating Permit Program FeeDemonstration. All documents were formerly reviewed in order to delegat e part 70 operating permit program approval to the tribe the previous year.

Tribe’s Title V Operating Permits Program Approval without Section 11 1 or 112 Approval

The Tribe submitted a title V o perating permits (title V) program on January 20, 2009 with supplements on September 28, 2010 and January 30, 2012

. The full approval for the Tribe’s title V program was published in 77 FR 15273 (2012

- 3

- 15) and was effective on March 2, 2012

.

The r equirements for title V program approval are specified in 40 C FR 70.4(b) and encompass requirements under section 112(l)(5) for delegation of NESHAP promulgated by EPA under 40 CFR parts 61 and 63, as well as other section 112 standards and requirements. Section 112(l)(5) requires that the State’s hazardous air pollu tant control program contain adequate authorities to implement and enforce the program, adequate resources for implementation, and an expeditious compliance schedule.

All Region 8 states used their title V program submittal and approval to meet the requir ements of section 112(l)(5) and 40 CFR 63.91 for receiving delegation of section 112 standards that are unchanged

from the Federal standards . Approval for the section 112(l) program was published with either the state’s interim or full title V program app roval . However, the Tribe did not request approval of their 112(l)(5) program at the time of their title V program approval , therefore the 112(l)(5) program analysis

and determination w as processed under a separate action.

The following information is fro m the preamble to the full approval for the Tribe’s t itle V p rogram and describes the consideration of sections 111 and 112 during the Tribe’s title V program approval process

.

III. Evaluation of the Tribe’s Authorities, B. Reasonably Severable Title V Program Elements, page 15269

. (Office of the Federal Register, 2012)

In the March 9, 2011 proposed interim approval, we stated that the underlying Federal regulations at CAA sections 111 (Standards of Performance for New Stat ionary Sources), 112 (National Emissions Standards for Hazardous Air Pollutants) and the Acid Rain Program at title IV of the CAA were reasonably severable elements of a title V program. At that time, the Region’s view was that the authority to implement a nd enforce these regulations independent of title V, as contrasted with the authority to include the requirements that apply to a particular source in that source’s title V permit and to enforce those requirements, is a necessary part of an approvable titl e V program.

After careful consideration, we find that, where, as is the case here, the title V permitting authority has the ability to include all applicable requirements in a title V permit and to enforce all requirements of a permit, the authority to i mplement CAA sections 111 and 112 as well as the Acid Rain Program directly (i.e., independently of title V) is not a necessary element of an approvable title V program and therefore does not require severing pursuant to 40 CFR 49.7(c). While we believe th at it is convenient in a number of respects for a permitting authority to have the authority to implement and enforce the Acid Rain Program and other underlying regulations outside of the context of an approved title V program, we are not, at this juncture , concluding that such authority is a necessary element of an approvable title V program.Office of Air Quality Planning and Standards M emorandum and Guidance

The Office of Air Quality Planning and Standards (OAQPS) has issued various memorandum and guidance concerning delegation of federal standards and program

. The Region used the following OAQPS memorandum and guidance when reviewing the Tribe’s sections 111 and 112 approval request:

1. Good Practices Manual for Delegation of NSPS and NESHAPS, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, North Carolina,

Februar y 1983

2. Memorandum, Straight Delegation Issues Concerning Sections 111 and 112 Requirements and Title V from John S. Seitz, Director, Office of Air Quality Planning and Standards, December
10, 1993

3. Memorandum, Delegation of 4 0 CFR Part 63 General Provisions Authorities to State and Local

Air Pol lution Control Agencies, from John S. Seitz, Director, Office of Air Quality Planning and Standards, July 10, 1998

4. Technical Assistance Document for the Submission of State/Local/Tribal Requests for Delegation and Approval of Alternatives to Section 112 Ru les, Programs, or Requirements, 40 CFR 63, Subpart E, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Information Transfer and Program Implementation Division, Durham, North Carolina, April 2001

Straight Delegation Issu es Concerning Section 111 and Section 112 Requirements and Title V

The OAQPS issued this memorandum address ing straight delegation issues in December 1993. It is intended to clarify how State/Local/Tribal agencies can use their title V program application and approval to meet the delegation criteria for section 111 and section 112 program approval s

. (USEPA Office of Air Quality Planning and Standards, 1993) The relationship between title V approval and section 111 delegation i s explained in the Q&A section of the memorandum . The Q&A section states :

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 (N SPS), 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 pr ospective 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(c) 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 separatedelegation 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 issuance of certain waivers, approval of alternate test methods and monitoring, and

some general authority provisions cannot be delegated.

Technical Assistance Document for the Submission of State/Local/Tribal Requests for Delegation and Approval of Alternatives to Section 112 Rules, Programs, or Requirements; 40 CFR 63, Subpart E

The OAQPS released a non

- binding guidance document in April 2001. It is intended to provide informal

assistance to State/Local/Tribal agencies seeking EPA approval of delegation requests authorized by Section 112. It also provides Q& A’s on how to prepare a submittal for approval to a CAA section 112 rule, program, or requirement.

The following are excerpts from the technical assistance document. (Office of Air Quality Planning and Standards, Information Tran sfer Program Implementation Division, 2001)

How do I get delegation of unchanged Federal section 112(l) standards? (pages 16

- 17) To receive delegation of Federal section 112 standards, you must request delegation for those specific standard(s) in wr iting and your request must be approved by the Administrator. Section 63.91 requires that you submit the following 5 items to the

Administrator:

1. A written finding by the State Attorney General (or General Counsel for Local or Tribal agencies) that you hav e the following authorities:

a. Enforcement authorities that meet the requirements of 40 CFR 70.11

b. Authority to request compliance information

c. Authority to inspect sources and records

d. Retained enforcement authority if you have delegated authorities to a

Local agency, unless that agency has authorities that meet the criteria of

section 70.11 or

e. Interim or final Title V program approval

2. A copy of the State statute, regulation, or requirement that grants you authority to implement and enforce the rule, program, or requirement upon approval.

3. A demonstration that you have adequate resources to implement and enforce the rule, program or requirement upon approval, including the following items:

f. A description of the scope, structure, coverage, and processes of your

ag ency’s program.

g. A description of the organization and structure of your agency

i. A description of your capacity to carry out the S/L/T program, including the number, occupation and general duties of employees.

4. An implementation schedule for the rule, program or requirement after approval5. A plan to assure compliance by all subject sources, including a description of your compliance and enforcement program and inspection strategy.

This demonstration only needs to be made once, so that in future requests for s traight delegation of Federal section 112 standards, you only need to reference this demonstration and reaffirm that you still meet these criteria.

Do I need to repeat this demonstration to request delegation of additional unchanged Federal section 112(l) standards? ( Page 21) After approval is attained once, you may not need to go through this process again for straight delegation of other section 112 standards. For delegation of additional standards, submit a request including the following information:

1. The names of the standards you are requesting delegation of

2. A copy of the initial straight delegation approval

3. A statement that the criteria met in the initial delegation approval have not changed

To further streamline the process for straight delegation, you should take the following

actions:

1. List all standards for which you seek delegation in the initial demonstration.

2. Note whether you wish future standards to be delegated to you automatically (if you have the appropriate authority), or if you will request delegation on a case

- by

case basis. If you request additional delegations on a case

- by

- case basis, EPA may use a direct final rulemaking to streamline delegation of these section 112 requirements.

What items do I include in my request for straight delegation? (Pages 77

– 78) You should include the following items in your complete request for straight delegation:

1. A cover letter explaining your goal in this submittal

2. A written finding by the State Attorney General (or General Counsel for local or tribal agencies) that you have the following authorities:

a. Enforcement authorities that meet the requirements of 40 CFR 70.11

b. Authority to request compliance information

c. Authority to inspect sources and records

d. Retained enforcement authority if you have del egated authorities to a local agency, unless that agency has authorities that meet the criteria of section

70.11 or

e. Confirmation of interim or final Title V program approval.

3. A copy of the State statute, regulation, or requirement that grants you authority to implement and enforce the rule, program, or requirement upon approval

4. A demonstration that you have adequate resources to implement and enforce the rule, program or requirement upon approval, including the following items:

a. A description of the scope, s tructure, coverage, and processes of your agency’s program

b. A description of the organization and structure of your agencyc. A description of your capacity to carry out the State program, including the number, occupation and general duties of employees.

5. An implementation schedule for the rule, program or requirement after approval

6. A plan to assure compliance by all subject sources, including a description of your compliance and enforcement program and inspection strategy

7. A completeness checklist.

Section 112 Implementing Regulations

The federal regulations implementing section 112(l)(5) are found at 40 C.F.R. Part 63 subpart E, Approval of State Programs and Delegation of Federal Authorities , §§63.90

– 63.99

. The program overview from §63.90 states:

The regulations in this subpart establish procedures consistent with section 112(l) of the Clean Air Act (Act) (42 U.S.C. 7401

– 7671q). This subpart establishes procedures for the approval of State rules, programs, or other requirements such as permit terms and conditions to be implemented and enforced in place of certain otherwise applicable section 112 Federal rules, emission standards, or requirements (including section 112 rules promulgated under the authority of the Act prior to the 1990 Amendments to the A ct). The authority to implement and enforce section 112 Federal rules as promulgated without changes may be delegated under procedures established in this subpart.

In this process, States may seek approval of a State mechanism for receiving delegation of existing and future unchanged Federal section 112 standards. This subpart clarifies which part 63, subpart A General Provisions authorities can be delegated to States. This subpart also establishes procedures for the review and withdrawal of section 112 i mplementation and enforcement authorities delegated through this subpart. This subpart also establishes procedures for the approval of State rules or programs to establish limitations on the potential to emit pollutants listed in or pursuant to section 112 (b) of the Act.

The regulations , 40 C.F.R. Part 63 subpart E, provide for several delegation options:

1. Unchanged Federal section 112 rules (“straight delegation”)

, 2. State rules, programs, or requirements that are different from the Federal rule

, 3. Separable portions of State rules, programs, or requirements (“partial approval”)

, 4. Programs under part 68 of this chapter, prevention of accidental releases , and

5. Limits on the potential to emit section 112 pollutants

The Tribe requested straight delegation of uncha nged section 112 standards on their letter dated July 3,

2012

. The criteria for upfront approval for straight delegation are found in §63.91.

§ 63.91 Criteria for straight delegation and criteria common to all approval options. (a) Applicable approval criteria. A State must satisfy the criteria in paragraph (d) of this section for up

- front approval to obtain delegation of the Federal section 112 rules, emission standards, or requirements. Once a State has demonstrated it meets the

criteria in paragraph (d) of this section, it only needs to reference that demonstration and reaffirm that it still meets the criteria in future submittals. In addition, a State must satisfy the applicable approval criteria in §§63.92, 63.93, 63.94, 63.95, or 63.97,

a s specified in the following paragraphs.(1) Unchanged Federal section 112 rules (“straight delegation”). To obtain approval of State programs to implement and enforce Federal section 112 rules as promulgated without changes (except for accidental release programs, described in paragraph (a)(4) of this section), only the criteria of paragraph (d) of this section must be met. This includes State requests for one

- time approval of their mechanism for taking delegation of future unchanged Federal section 112 r ules, emission standards, and requirements as well as approval to implement and enforce unchanged Federal section 112 rules, emission standards, and requirements on a rule

- by

- rule basis.

. . . d) Criteria for approval. (1) Any request for approval under th is subpart shall meet all section 112(l) approval criteria specified by the otherwise applicable Federal section 112 rule, emission standard, or requirement, all of the approval criteria of this section, and any additional approval criteria in §§63.92, 63. 93, 63.94, 63.95, or 63.97.

(2) Once a State has satisfied the §63.91(d) up

- front approval requirements, it only needs to reference the previous demonstration and reaffirm that is still meets the criteria for any subsequent equivalency submittals.

(3) In terim or final title V program approval will satisfy the criteria set forth in §63.91(d), up

- front approval criteria. Alternatively, the State must provide the following items in paragraphs (d)(3)(i) through (v) of this section to the

Administrator:

The E PA may request additional information at any time while reviewing the submittal for adequacy of implementation and enforcement.

§ 63.96 Review and withdrawal of approval.

(a) Submission of information for review of approval. (1) The Administrator may at any time request any of the following information to review the adequacy of implementation and enforcement of an approved rule or program and the State shall provide that information within 45 days of the Administrator's request:

(i) Copies of any State statutes, rules, regulations or other requirements that have amended, repealed or revised the approved State rule or program since approval or since the immediately previous EPA review; (ii) Information to demonstrate adequate State enforcement and

c ompliance monitoring activities with respect to all approved State rules and with all section 112 rules, emission standards or requirements; (iii) Information to demonstrate adequate funding, staff, and other resources to implement and enforce the State's approved rule or program; (iv) A schedule for implementing the State's approved rule or program that assures compliance with all section 112 rules and requirements that the EPA has promulgated since approval or since the immediately previous EPA review,( v) A list of part 70 or other permits issued, amended, revised, or revoked since approval or since immediately previous EPA review, for sources subject to a State rule or program approved under this subpart. (vi) A summary of enforcement actions by the State regarding violations of section 112 requirements, including but not limited to administrative orders and judicial and administrative complaints and settlements.

(2) Upon request by the Administrator, the State shall demonstrate that each State rule, emission standard or requirement applied to an individual source is no less stringent as applied than the otherwise applicable Federal rule, emission standard or requirement.

General Provisionsthat may not be Delegated

The Office of Air Quality Planning and Standards issued a memorandum to provide guidance to the EPA Regional Offices on delegation of discretionary authorities relating to air toxics in 40 CFR part 63, subpart A (the General Provisions) to State and Local Air Pollution Control (S/L) agenci es through 40 CFR part 63, subpart E (Approval of State Programs). Under the General Provisions, the EPA Administrator has the authority to approve certain changes to, or make decisions under, specific General Provisions requirements in July 1998. (Office of Air Quality Planning and Standards, 1998)

The following are excerpts from the memorandum:

In explaining the straight delegation process for delegating air toxics provisions to S/L agencies under 40 CFR part 63, subpart E, we did not clarify what discretionary authorities are delegated to S/L agencies when they seek straight delegation of the General Provisions. Although this is briefly discussed in the proposed General Provisions' preamble (Federal Register, August 11, 199 3, page 42775

- 42777), the forthcoming proposed subpart E revisions will fill that gap by clarifying which discretionary authorities may be delegated to S/L agencies through straight delegation of the General Provisions. At your discretion, the Regional Off ices must then specify in delegation agreements or documents which of the subpart A authorities are being delegated to each State. We recommend that you begin implementing these changes as soon as possible. Therefore, this memorandum is intended to explain the changes and provide guidance for you to begin implementing the changes now. Neither this memorandum nor the subpart E rulemaking changes any source

- specific decisions that have already been made under the General Provisions, but the guidance in this

m emorandum should be used as guidance for all future decisions regarding the General

Provisions' authorities.

Delegation o f Section 111

Under section 111 of the Clean Air Act (CAA), EPA is authorized to establish new source performance standards (NSPS), which impose Federal technology

- based requirements on new and modified stationary sources of pollution. EPA has developed NSPS standards for numerous source categories, which are published at 40 CFR parts 60 and 62. Although EPA has responsibility for impl ementing and enforcing the NSPS regulations, section 111(c) authorizes EPA to delegate primary implementation and enforcement responsibility to State and local agencies that develop and submit to EPA procedures for implementing and enforcing the NSPS where EPA determines that such procedures are adequate. Evenwhere EPA has delegated primary responsibility for the NSPS to a State or local agency, however, EPA retains concurrent authority to enforce the NSPS. See CAA sections 111(c)(2) and 113.

Bibliograph y Office of the Federal Register. (2012, March 15). Clean Air Act Full Approval Title V Operating Permits Program; Southern Ute Indian Tribe. 77 FR 15267 (2012

- 3

- 15)

.

USEPA Office of Air Quality Planning and Standards. (1993, December 10). TTN OAR Policy

andGuidance

- Memoranda for Hazardous Air Pollutants. Retrieved April 3, 2012, from Technology Transfer Network, OAR Policy and Guidance: http://www.epa.gov/ttn/oarpg/t3pgm.html

USEPA Office of Air Quality Planning and Standards, Informatio n Transfer Program Implementation Division. (2001, April). 112(l) Delegation of Federal Authorities. Retrieved April 2, 2012, from Technology Transfer Network, Air Toxics Web Site: http://www.epa.gov/ttn/atw/112(l)/april_tech.pdf