MEMO TO FILE

DATE: July 8, 2013

SUBJECT: Southern Ute Indian Tribe, Delegation of Authority for Sections 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 programs 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 Federal Authorities, §§63.90 – 63.99 . The full approval for the Tribe’s section 111 and 

section 112 programs was published in 78 FR 40635 (2013-7-8) and was effective on July 8, 2013.

This memorandum 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 support 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 sections 111 and 112 programs including 

straight delegation of unchanged sections 111 and 112 standards for part 70 and non-part 70 

sources.

2. Regulatory basis for delegation 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, the Region has the authority to delegate CAA sections 111 and 112 standards and programs.

4. Yes, the Tribe submitted the regulatory required information to support their delegation request.

5. Yes, the submitted information met the approval criteria. 
The discussion in the following sections supports the answers to each question and provides the basis for 

the Region’s decision to approve the Tribe’s request.

Regulatory Basis and Mechanism for Delegating 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 sources 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 this 

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 authorities 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 the 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 

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 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 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 implementation 

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.

Region 8 authority to delegate CAA sections 111 and 112 standards and programs
The 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 Tribal 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 delegation of authority 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 portion 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. Assistant 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 

section 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 Assistance previously known as Office of 

Pollution Prevention, State and Tribal Assistance. 

The delegation 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. Regional delegation references conditions (1.c., 1.d., 1.e. 

and 1.h.) that are found in the national delegation document but are not in the regional document. These 

citations refer to delegation options other than straight delegation. The regional version of delegation of 

authority 7-100 is given below:

R8.1200 12/20/1996 CLEAN AIR ACT

7-100.. Approval of State 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 defined 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 Prevention, 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 opportunity 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 

further.

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 dated 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 Standards dated April 3, 2012

The automatic delegation process has been used since May 2000. Once 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 requirement 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 §63.91.

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 Fee 
Demonstration. All documents were formerly reviewed in order to delegate part 70 operating permit 

program approval to the tribe the previous year. 

Tribe’s Title V Operating Permits Program Approval without Section 111 or 112 Approval

The Tribe submitted a title V operating 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 requirements for title V program approval are specified in 40 CFR 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 pollutant 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 requirements 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 approval. 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 was processed under a separate action.

The following information is from the preamble to the full approval for the Tribe’s title V program 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 Stationary 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 and 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 title 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 implement 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 that 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 Memorandum 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, 

February 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 40 CFR Part 63 General Provisions Authorities to State and Local 

Air Pollution 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 Rules, 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 Issues Concerning Section 111 and Section 112 Requirements and Title V

The OAQPS issued this memorandum addressing 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 approvals. (USEPA 

Office of Air Quality Planning and Standards, 1993) The relationship between title V approval and 

section 111 delegation is 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 (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(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 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 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 Transfer 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 writing 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 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 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 

agency’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 approval
5. 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 straight 

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-bycase 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 delegated 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, structure, coverage, and processes of your 

agency’s program

b. A description of the organization and structure of your agency
c. 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 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 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 implementation 

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 unchanged 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, 

as 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 rules, 

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 this 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) Interim 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 EPA 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 

compliance 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) agencies 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, 1993, 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 Offices 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 

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

Provisions' authorities.

Delegation of 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 implementing 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. Even 
where 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.

Bibliography

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, Information 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