UNITEDSTATESENVIRONMENTALPROTECTIONAGENCY REGIONVIII
999 18thSTREET

- SUITE500 DENVER,COLORADO 80202-2405

Ref: BAT-AP
JeffreyT. Chaffee, Chief Air QualityBureau 

### OCT 91991

Department of Health and Environmental Sciences Cogswell Building Helena, Montana 59620

Dear Jeff:
Duringthe June, 1991 StateAir Directors Meeting, EPA raised the issue of delegation of authority for state implementation of New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAPs) versus approval of these regulations in the State Implementation Plan (SIP). The purpose of this letter is to elaborate on the differences between approval of NSPS and NESHAPs in the SIP and delegation of authority for implementation of NSPS and NESHAPs, andtodiscuss the State's present status with its NSPS and NESHAPs regulations.

When a delegation of authority is granted, EPA authorizes a state to implement and enforce a Federal regulation. In order to process a delegation of authorityto a state for implementation of a NSPS or NESHAP, the governor or designee must formally submit a request for delegation of authority. This submittal must contain: 1) a copy of the stateregulation which incorporates the appropriate Federal regulations or is written identical to the Federal regulations, 2) documentation of the public hearingprocess and reviewof comments for state adoption of the regulation, 3) proof thatthe state air pollution agency has the legal authority and resources to implement and enforce the Federal regulation, and 4) detailed definitions of terms in the regulations anddocumentation of all coordination with other affected state and Federal regulations (i.e., permits, enforcement, etc.). If EPA determines the stateregulation is equivalent to the Federal regulation, delegation of authority will be given in a letter to the governor, which will also be printed in a Federal Register notice.

When a state regulation is approved in the SIP, EPA approves the state's authorityto implement and enforcethe state regulation. In order to process a NSPS or NESHAP regulation in the SIP, all of the requirements in the precedingparagraph apply, except item 4, since most, if not all, affected regulations are already in the SIP. EPA must reviewthe state submittal for administrative andtechnical completeness. Once the submittal is determined to be complete, EPA must determine whether to approve or disapprove the submittal. EPA's action onthe SIP submittal will then be printed in a direct final Federal Register notice.
Althoughdifferences exist in EPA processing of delegated
vs. SIP-approvedprograms, EPA's enforcement ability for NSPS and NESHAPs generallyremains consistentbetween delegated and SIPapprovedprograms. In either case, as provided for in the Clean Air Act (CAA), EPA has the authorityto enforce a**~SPS** or NESHAP without providingnotice of violation or a 30-daywaitingperiod to take action. The major difference between SIP-approved and delegatedNSPS andNESHAP programs is in the enforcement of the state regulation. Generally, if a NSPS orNESHAP regulation is approved inthe SIP, EPA has the responsibilityto enforce the state rule, even if it is more stringent than the Federal rule. If a NSPS or NESHAP program isdelegated to a state, EPA may only enforce the Federal regulation, even if the stateregulation is
more stringent.
However, with respect to NSPS andNESHAPs, Congress intended for EPA to set the "standard," as outlined in Section 111 and 112 of the CAA, as opposed to including such standards in Section 110 implementation plans (which allows the states to set the nonattainment area "standard.") EPA can understand a state's interest for compilation of all state air qualityregulations, because itmay greatly improve clarityand coordination of the
various regulations in a state's air program. Therefore, EPA can allowthe stateto include NSPS and NESHAPs in the SIP. However, given the congressional intent of the NSPS and NESHAPs programs, EPA believes that, regardless of SIP-approval or delegation, approval of a state's NSPS and NESHAPs regulations will onlybe given when the regulations are equal to the Federal NSPS and NESHAPs programs, and such approval will be given with the understandingthat all NSPS andNESHAPs will be enforced by EPA
as outlined in the CAA. EPA will retain concurrent enforcement for the NSPS andNESHAPs programs, whether the programs are delegated or approved inthe SIP.

EPA's second enforcement concern centers on state acceptance and enforcement of the Federal applicabilitydates. NESHAPs apply to both existing and new sources that meet the applicability criteria for each specificNESHAP, while NSPS apply to all sources meeting the applicability criteriawhich construct after the Federal applicabilitydate for each specificNSPS. EPA prefers that each state enforce the Federal applicabilitydates for each standard adopted. If a statedoes not have the authorityto enforce the Federal applicabilitydates, then EPA retains the enforcement authority for the sources which construct between the Federal applicabilitydates and the date of state adoption. In this case, if the State-EPAAgreement (SEA) is based on a state having full enforcement authority for each NSPS and NESHAP adopted, it may necessitate reductions in the State 105 grant money to reflect the contract effortrequiredby EPA to

2.' performthe enforcement activities for those sources not under state jurisdiction.

EPA believes that, when a state incorporates byreference a Federal NSPS orNESHAP, the state is incorporatingthe Federal applicabilitydates of each standard. Therefore, sincethe Montana regulations incorporate byreference the Federal NSPS and NESHAPs, EPA assumes that the State accepts and enforces the standard for all sources constructed afterthe applicabilitydate of each standard. In order toverify our understanding of the State's legal authority, EPA requests thatthe State, with
concurrence from its AttorneyGeneral, provide EPA with the State's legal authority (State statute, regulation, legal definitions, and/or Stateprocedure) to accept and enforcethe Federal NSPS or NESHAPs, including the Federal applicability dates. ·
The State was originallydelegated the authority for implementation and enforcement of many of its NSPS and NESHAPs regulations, and its NSPS and NESHAPs regulations were also approved inthe SIP. Subsequent revisions to the State's NSPS and NESHAPs regulations have been approved by delegation of authority. However, since the subchapters containingthe State's NSPS and NESHAPs programs were approved in the SIP, all revisions to the State'sNSPS and NESHAPs regulations are also in the SIP. EPA recently clarifiedthat all of Montana's NSPS regulations are approved in the SIP (insteadof delegated) in a June 20, 1991 Federal Notice (56 FR 28324). The State, at this time, has the opportunityto change the processing of its NSPS and NESHAPs regulations to all delegations of authority.

If the Statedecides tohave its NSPS andNESHAPs programs delegated, thenthe Statemust go through a public hearing process in orderto remove the NSPS and NESHAPs regulations from the SIP and establish the programby which NSPS and NESHAPs will be implemented (i.e., documenting all of the appropriate affected State and Federal regulations). After receiving a formal submittal fromthe Governor (assuming that all administrative and technical issues aredeemed complete), EPA will prepare a Federal Register notice removing the NSPS andNESHAPs from the SIP and delegatingthe authority for enforcement of the NSPS andNESHAPs. The State and EPA will not need tobegin this process for revising its SIPuntil the next time the State revises their NSPS
or their NESHAPs regulations.

EPA requests a reply fromthe State, choosing either delegation of authority or approval in the SIP for itsNSPS and NESHAPs programs. In the reply, the State should include a determination of the State's legal authorityto enforce the Federal NSPS and NESHAPs, includingthe Federal applicability dates. If the State finds that it cannot enforce the Federal applicabilitydates, EPA will needto obtain a list of those

3**··~.** sources under State jurisdiction, and a list of those sources for which EPA has the enforcement authority, for each NSPS and NESHAP adopted by the State. EPA requests the State'sresponse on these issues by November 1, 1991.
r{you have any questions regarding this letter, please call Vicki Stamper at (303) 293-1765.

-..... Sincerely, 

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