UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION VIII 

999 18th STREET - SUITE 500 

DENVER, COLORADO 80202-2405 

Ref: BAT-AP 

Jeffrey T. Chaffee, Chief 

Air Quality Bureau 

OCT 9 1991 

Department of Health and Environmental Sciences 

Cogswell Building 

Helena, Montana 59620 

Dear Jeff: 

During the June, 1991 State Air 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, and to discuss 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 authority to 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 state regulation which 

incorporates the appropriate Federal regulations or is written 

identical to the Federal regulations, 2) documentation of the 

public hearing process and review of comments for state adoption 

of the regulation, 3) proof that the 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 and documentation of all coordination with other 

affected state and Federal regulations (i.e., permits, 

enforcement, etc.). If EPA determines the state regulation 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 authority to implement and enforce the state 

regulation. In order to process a NSPS or NESHAP regulation in 

the SIP, all of the requirements in the preceding paragraph 

apply, except item 4, since most, if not all, affected 

regulations are already in the SIP. EPA must review the state 

submittal for administrative and technical completeness. Once 

the submittal is determined to be complete, EPA must determine 

whether to approve or disapprove the submittal. EPA's action on 
the SIP submittal will then be printed in a direct final Federal 

Register notice. 

Although differences exist in EPA processing of delegated 

vs. SIP-approved programs, EPA's enforcement ability for NSPS and 

NESHAPs generally remains consistent between delegated and SIPapproved programs. In either case, as provided for in the Clean 

Air Act (CAA), EPA has the authority to enforce a ~SPS or NESHAP 

without providing notice of violation or a 30-day waiting period 

to take action. The major difference between SIP-approved and 

delegated NSPS and NESHAP programs is in the enforcement of the 

state regulation. Generally, if a NSPS or NESHAP regulation is 

approved in the SIP, EPA has the responsibility to enforce the 

state rule, even if it is more stringent than the Federal rule. 

If a NSPS or NESHAP program is delegated to a state, EPA may only 

enforce the Federal regulation, even if the state regulation is 

more stringent. 

However, with respect to NSPS and NESHAPs, 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 quality regulations, 

because it may greatly improve clarity and coordination of the 

various regulations in a state's air program. Therefore, EPA can 

allow the state to 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 only be 

given when the regulations are equal to the Federal NSPS and 

NESHAPs programs, and such approval will be given with the 

understanding that all NSPS and NESHAPs will be enforced by EPA 

as outlined in the CAA. EPA will retain concurrent enforcement 

for the NSPS and NESHAPs programs, whether the programs are 

delegated or approved in the SIP. 

EPA's second enforcement concern centers on state acceptance 

and enforcement of the Federal applicability dates. NESHAPs 

apply to both existing and new sources that meet the 

applicability criteria for each specific NESHAP, while NSPS apply 

to all sources meeting the applicability criteria which construct 

after the Federal applicability date for each specific NSPS. EPA 

prefers that each state enforce the Federal applicability dates 

for each standard adopted. If a state does not have the 

authority to enforce the Federal applicability dates, then EPA 

retains the enforcement authority for the sources which construct 

between the Federal applicability dates and the date of state 

adoption. In this case, if the State-EPA Agreement (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 effort required by EPA to 

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perform the enforcement activities for those sources not under 

state jurisdiction. 

EPA believes that, when a state incorporates by reference a 

Federal NSPS or NESHAP, the state is incorporating the Federal 

applicability dates of each standard. Therefore, since the 

Montana regulations incorporate by reference the Federal NSPS and 

NESHAPs, EPA assumes that the State accepts and enforces the 

standard for all sources constructed after the applicability date 

of each standard. In order to verify our understanding of the 

State's legal authority, EPA requests that the State, with 

concurrence from its Attorney General, provide EPA with the 

State's legal authority (State statute, regulation, legal 

definitions, and/or State procedure) to accept and enforce the 

Federal NSPS or NESHAPs, including the Federal applicability 

dates. · 

The State was originally delegated the authority for 

implementation and enforcement of many of its NSPS and NESHAPs 

regulations, and its NSPS and NESHAPs regulations were also 

approved in the SIP. Subsequent revisions to the State's NSPS 

and NESHAPs regulations have been approved by delegation of 

authority. However, since the subchapters containing the State's 

NSPS and NESHAPs programs were approved in the SIP, all revisions 

to the State's NSPS and NESHAPs regulations are also in the SIP. 

EPA recently clarified that all of Montana's NSPS regulations are 

approved in the SIP (instead of delegated) in a June 20, 1991 

Federal Notice (56 FR 28324). The State, at this time, has the 

opportunity to change the processing of its NSPS and NESHAPs 

regulations to all delegations of authority. 

If the State decides to have its NSPS and NESHAPs programs 

delegated, then the State must go through a public hearing 

process in order to remove the NSPS and NESHAPs regulations from 

the SIP and establish the program by which NSPS and NESHAPs will 

be implemented (i.e., documenting all of the appropriate affected 

State and Federal regulations). After receiving a formal 

submittal from the Governor (assuming that all administrative and 

technical issues are deemed complete), EPA will prepare a Federal 

Register notice removing the NSPS and NESHAPs from the SIP and 

delegating the authority for enforcement of the NSPS and NESHAPs. 

The State and EPA will not need to begin this process for 

revising its SIP until the next time the State revises their NSPS 

or their NESHAPs regulations. 

EPA requests a reply from the State, choosing either 

delegation of authority or approval in the SIP for its NSPS and 

NESHAPs programs. In the reply, the State should include a 

determination of the State's legal authority to enforce the 

Federal NSPS and NESHAPs, including the Federal applicability 

dates. If the State finds that it cannot enforce the Federal 

applicability dates, EPA will need to obtain a list of those 

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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's response on these 

issues by November 1, 1991. 

r{ you have any questions regarding this letter, please call 

Vicki Stamper at (303) 293-1765. 

-..... Sincerely, 

\'i 

..-···!01- ' 4 ...... ~--~ (,~···· D()uglaE:j,..M. Skie, Chief 

' .. . _______ kir Pro. s Branch 

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