September 23, 1987

MEMORANDUM

SUBJECT: Review of State Implementation Plans and Revision for

 Enforceability and Legal Sufficiency

FROM: J. Craig Potter

 Assistant Administrator

 for Air and Radiation

 Thomas L. Adams Jr.

 Assistant Administrator for Enforcement

 and Compliance Monitoring

 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.

Section 51.281 (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 at

the forefront of the federal SIP approval process. The purpose of this

memorandum is to remind you of the importance of doing the review necessary

to assure that all SIP plans 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 review regulations as to their adequacy under applicable

laws and Agency policy, but not for enforceability. This void is not being

filled by other offices. Often, the problems with enforcing the regulations

are not immediately obvious and only become known where a case or issue

focuses on the particular regulation. At the October 1986 Annapolis

 -2-

meeting of Air Program Directors and Regional Counsel Air Branch Chiefs, a

number of problems 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 Regional air compliance staff and the

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 SIP review.

Timing of Review

 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 is better 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 of the past. SIP regulations that deviate

from this policy are to be disapproved pursuant to Section 110(a) of the

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 sort of variation of

the normal mode of compliance must be completely and explicitly defined and

must make clear whether or not EPA case-by-case approval is required to make

such a method of compliance federally effective.

 -3-

Conclusion

 SIP revisions should be written clearly, with explicit language to

implement their intent. The plain language of all rules, as well as the

related Federal Register notices, should be complete, clear and consistent

with the intended purpose of the rules. Specific review for enforceability

will be a further step in improving the 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

 Region I-X

 Air Management Division Directors

 Regions I, III and IX

 Air and Waste Management Division Director

 Region II

 Air, Pesticides, and Toxic Management Division

 Directors

 Regions IV and VI

 Air and Radiation Division Director

 Region V

 Air and Toxic Division Directors

 Regions VII, VIII and X

cc: Deputy Regional Administrators

 Regions I-X

 Regional Counsel

 Air Contacts

 Regions I-X

 Air Compliance Branch Chiefs

 Regions II, III, IV, V, VI, IX

 Air Program Branch Chiefs

 Region I-X

 Darryl Tyler, Director

 Control Programs Development Division

 Gerald Emison, Director

 Office of Air Quality Planning and Standards

 -4-

cc: John S. Seitz, Director

 Stationary Source Compliance Division

 Office of Air Quality Planning and Standards

 Allan W. Eckert

 Associate General Counsel

 Air Division

 Michael S. Alushin

 Associate Enforcement Counsel

 Air Enforcement Division
Deputy Regional Administrators, Regions I-X; Regional Counsel, Air

Contacts, Regions I-X; Air Compliance Branch Chiefs, Regions II, III, IV, V,

VI, IX; Air Program Branch Chiefs, Region I-X; Director, Control Programs

Development Division; Director, Office of Air Quality Planning and

Standards; Director; Stationary Source Compliance Division; Office of Air

Quality Planning and Standards; Associate General Counsel, Air Division;

Associate Enforcement Counsel, Air Enforcement Division