•UNITED~P~TES ENVIRONMENTAL PROTECTION AGENCY

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SEP.231981.

MEMORANDUM

SUBJECT: Review of State Implementation Plans and Revisions

for Enforceability and Legal Sufficiency

FROM: J. Craig Potter Assistant Administrator /~ ~

for Air and Radiation .-‘ ‘ 7

Thomas L. Adams Jr. sr... ~~ç Assistant Administrator for Enforcement

and Compliance Monitoring

Francis S. Blak~~ (?~.L(__ General CounselOff ice 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 stateimplementation plans (“SIPs”) must “be adopted as rules and

regulations enforceable (emphasis added) by the State agency”

(40 C.F.R. 551.281 (1987)). we are concerned that review of

SIPs for enforceability has not been receiving adequate atten

tion. The Agency sometimes experiences difficulties in its

efforts to enforce the current rules because they are notsufficiently 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 enforce

ability criteria in this memorandum.

Background

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Annapolis meeting of Air Program Directors and Regional CounselAir Branch Chiefs,

a number of problems in recent enforcement

cases due to difficulty in interpreting and enforcing regula

tions were discussed. With the recent work being done toaddress 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 specif i—

cally 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 explicitguidance 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. Speci

fically, we are concerned that the following issues be directlyaddressed. The rule should be clear as to who must comply andby 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.

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• ConclUSiOP~ . . . .

• SIP. revisions 8hould be written clearly, with expliàit language to implement their intent. The plain language of all

rules, as wellas 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

Regions I—X

Air Management Division Directors

Regions I, III and IX

Air and Waste Management Division Director

Region II

Air, pesticides, and Toxics Management Division

DirectorsRegions IV and VI

Air and Radiation Division Director

Region V

Air and Toxics 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
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cc: John S.. Seitz, Director

Stationary Source Compliance DivisionOffice of Air Quality Planning and Standards

Alan W. EckertAssociate General CounselAir Division•

Michael S. Alushin

Associate Enforcement Counsel

Air Enforcement Division
t~’~’i~1 ‘5

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MEMORANDUM

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

SEP 23 1987

SUBJECT:

FROM:

Review of State Implementation Plans and Revisions

for Enforceability and Legal Suffici ncy

Michael

Associate

S.

Enforcement

Alushin ~

Counsel

I~

for Air Enforcement

Associate

Alan W. Ec

Gener

ker t~

Co nsel

~

Air and Radiation Division

John S. Seitz, Director

Stationary Source Complia1

Office of Air Quality Plal

TO: Addressees

This is to provide implementing guidance on the memorandum

issued by J. Craig Potter, Thomas Adams and Francis Blake

on this date relating to review of SIP plans and revisions

for enforceability and legal sufficiency. we urge you to

provide copies of these memoranda to your State Agency Directors.

Applicability

This guidance applies to all SIP proposals which have

not completed the state or local agency legal and procedural

requirements for SIPS. For proposals~ that have not yet

been submitted to the Regional office for action, the state

and local agencies have forty—five (45) days from the date

of this guidance to submit such proposals for review in order

for the proposal to be considered under previous procedures.

sIP packages currently in Headquarters will undergo the usual

review but will be returned to the Regions if they contain

deficiencies which raise sicznificant questions as to whether

the regulation would be enforceable.Enforceability Criteria

.ng and Standards
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Aithough we should generally defer to a ~sJ~nterpretation of

the scope of. its authority, when there is real doubt wishould, at a minimum, consult the responsible S~áte Attorney to

be certain the issue’haS”been considered and resolved. When

appropriate, an opinion letter should be obtained from the

State Attorney General.

Please ensure that, the following additional issues are

directly addressed.

Applicability

It should be clear as to whom the regulation applies. The

SIP should include a description of the types of affected

facilities. The rule should also state in which areas the rule

applies (entire state, specific counties, nonattainment, etc.)

and advise the reader that State administrative changes require

a formal SIP revision. Also, some regulations might require a

certain percentage reduction from sources. The regulation

should be clear as to how the baseline from which such a reduction

is to be accomplished is set. In some cases it may be necessary

for enforcement purposes and independent of Clean Air Actrequirements for the SIP to include an inventory of allowable

and actual emissiOns from sources in the affected categories in

order to set the above baseline.

• Time

The regulation should specify the required date of

compliance. Is it upon promulgation. or approval by EPA, or a

future date àertain? Future effective dates beyond the

approved or proposed attainment date should not be allowed

unless the related emissions reductions are not needed for

attainment. Also, the regulation should specify the important

dates required of any compliance schedule which is required to

be submitted by the source to the state.

• Effect of Changed ConditionsIf changed circumstances affect an emission limit or other

requirement, the effect of changed conditions should be clearly

specified

However

you should not approve state regulations
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Standard of Conduct

~he regulation must be sufficiently specific ~o that a

source is fairly on notice as to_the standard itc must. meet.For example,”alterflative equivalent techWi4ué” provisions should not be approved without clarification conce~i~ing the time period over which equiv~le fsi~äSUred as well as whether the equivalency applies on iper source or per line basis Or is facility wide.

o IncorporatiOn by Reference

Some federal regulations are inapprppr~ate. for adoption

by reference. For example, a state intending to enforce PSO

regulations adopted by reference must adopt 40 C.F.R. S52.21,

not 40 C.F.R. S51.166, as only the former is written in a form

imposing obligations on permit applicants. Even then, changes

may have to be made to take into account the difference between

the State’s situation and EPA’S~

o Transfer Efficiency

Some states have attempted to provide particular VOC

sources with relaxations of compliance limits in return for

improvements in the efficiency with which the sources use thepollutant producing material. Any rules allowing transfer

efficiency to be used in determining compliance must be explicit

as to when and under what circumstances a source may use improved

transfer efficiency as a substitute for meeting the SIP limit.Such provisions must state whether EPA approval is required on

a case—by—case basis. Also, such provisions may not simply

reference the NSPS auto coating tables for the transfer

efficiency. The improvement should be demonstrated through

testing and an appropriate test method should be set forth.

Implied improvements noted by the NSPS’ auto coating TE

table are not to be accepted at face value.

o Compliance periods

SIP rules should describe explicitly the compliance time

frame associated with each emission limit (e.g. instantaneous,

stack test, 3 hour average or daily). The Regions should not

assume that a lack of specificity implies instantaneous compliance.

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clear as to whether EPA approval of state granted àlternativé

compliance techniques is required on a case—by—case basis inorder for the changed mode of compliance to replace the existing

federally enforceable requirement. If EPA case—by—case approval

willnot be required, then specific, objective and replicable

criteria must be set forth for determining whether the new

.arrangement is truly equivalent in terms of emission rates and

ambient impact. Such procedures must be consistent with the

control levels specified in the overall SIP control strategyand must meet other EPA policy requirements, including the

“Emissions Trading Polic~,’”, 51 Fed. Reg. 43814 (1986), in

relevant instance$.

Recordkeeping

The SIP must state explicitly those records which sources

are required to keep to assess compliance for the time frame

specified in the rule. Records must be commensurate with regula

tory requirements, and must be available for examination onrequest. The SIP must give reporting schedules and reportingformats. For example, these rules must require daily records

if the SIP requires daily compliance. Additionally, the record—keeping must be required such that failure to do so would be a

separate violation in itself.

o Test Methods

Each compliance provision must list how compliance is

to be determined and the appropriate test method to be used.

The allowable averaging times should be explicit. Both the

test method and averaging times employed must be sufficientto protect the ambient standard involved.

o Exemptions

If sources under a certain size ar~e exempted from control

requirements, the regulation must identify how the size of a

particular source is to be determined.

o Malfunction and Variance Provisions

Any malfunction or variance exemptions must be clear in

their substantive application and in how they are triggered.

The rule must specify what exceedances may be excused, how the

standard is to be applied, and who makes the determination.
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Please contact the appropriate staff attorney in the Office

of General Counsel or the Office of Enforcement and Compliance Monitoring should you have any questions concerning issues of enforceability in particular instances. Please contact Tom Helms, OAQPS, FTS—629—5526, for other questions concerning implementation of this guidance.

Attachment

Addressees:

Regional Administrators

Regions I—X

Regional Counsels

RegionS I—X

Air Management Division Directors

Regions I, III and IX

Air and Waste Management Division Director

Region IIAir, Pesticides, and Toxics Management Division

Directors

Regions IV and VI

Air and Radiation Division Director

Region V

Air and To2cics Division Directors

Regions VII, VIII and X

cc: Deputy Regional Administrators

Regions I—X

Regional Counsel

Air ContactsRegions I—X

Air Compliance Branch Chiefs

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

SIP PPOVABILITY CHECKLIST- ENFORCEABILWI

• SIP Package No.

STATE: _______

Date Rec. Date Due ______________

subject Hatter: --

(Specific Provisfori and c~ri≠ionT

Enforceability Analysis

1. Applicability

a. What sources are being

regulated?

b. What are criteria for

exemption?

C. Is calculation

procedure for exemption

• clearly specified?

• d. Is emission inventory

listed in the

background document

of the.attainment

denastration?

State S~~itt~ -

(list res~nses)

EPA Requirement

Clarity

Clarity

Example calculation or

clear explanation of

how to determine

exemption (line by line,

etc.)

Inventory including

allowable and actual

emissions in source

category should be

included, for enforce

ment purposes and

independent of any Clean

Air Act requirements,

in the attainment demcn—

stration if such data is

necessary for determin

ing baselines in regula

tions.

Approvability (Approvable or Not)
•~nforceabiljty Analysis Istate Submittal JEPA Reaulrement

e. Is the averaging time(s)L

used in the rule differ-.

ent from that of the

ambient standard?

The averaqing time in the

rule must be consistent

with protecting the ambient

standard in question.

Normally, it should be equal

to or shorter than the

time associated with the

standard. L~nger term

averaging is available

only in limited instances

provided that the ambient

standard is not compromised.

Clearly stated in the

rule

Explicit description of

how averaging, bubbling,

or equivalency is to be

determined. VOC

eouivalency must be on

a “solids applied”

basis. Any method must

be independently re

producible. Provision

must be explicit as to

whether EPA case—by—

case approval required.

If provision intended

to be “generic” then EPA

bubble policy must be

met.

‘p

~p rovability (Approvable or Not

f. What are the units of

cowpliance (lbs ‘ICC per

gallon of solids

applied less water,

grains per standard

cubic foot?)

g. Is bubbling or averag

ing of any type

• allowed? If yes,

• state criteria.

Could a US. EPA

inspector independently

determine if the

• criteria were met? Does

EPA have to approve

• each case?

C
EnforceabilitY Analysis State Submittal EPA Requirement AoDrovabilitv (Approvable or Not

h. If there is a cedesigna—

tion, will this change

the emission limita

tions? If yes, which

ones and how?

2. Compliance Dates

a. What is compliance

date?

b. What is the attainment

date?

3.. specificity of Conduct

a.~ What test method is

required?

• b. What is the averaging

time in compliance

test method?

.c. Is a compliance

calculation or

evaluation required?

(i~e., daily weighted

average for VOC).

.d. If yes to “c,” list

the formula, period of

cr~nnii~n~. and/or

Regulation may not

automatic~1ly allow for

self nullification upon

redesignation of area

to attainment. New

maintenance demcnstra—

tion required in order

to drop regulation.

Must riot be later than

approved or about to

be approved date of

attainment unless

emission reductions not

necessary for att~in—

ment. In some cases,

it will be necessary

for the regulation to

specify dates in compli

ance schedules that are

required to be sut~itted

by source to state.

Test method must be

explicitly stated,

Averaging time and

application of limit

must be explicit.

Formula must be

explicit.

I:
EPA Re~irem~!3~ AtDDroVabilitY.(Approvable or Not

EnforceabilitY Analysis

4. incorporation by Reference

State Submittal

a. what is state authority

for rulemaking?

b. Are methods/rules

incorporated by

reference in the

right manner.

5.: Recordkeepiflg

a. What records are

required to determine

V V compliance?

b. In what form or units

(lbs/gal, gr/dscf,

etc.) must the

records be kept? On

• . what time basis

• (instantaneously, hourly, daily)?

c. Does the rule affirm—

atively reciuire the

records be kept?

Records to be kept

must be consistent

with units of

compliance in the per

formance requirements,

including the appli

cable time period.

There must be a clear

separately enforceable

provision that requires

records to be kept.

Clarity

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Enforceability Analysis State Submittal - EPA Reouirement Approvability (Approvable or Not)

6. ExernptiOn8

a. List any exemptions Must be clearly defined

• allowed, and distinguishable from what constitutes a

• b. Is the criteria for violation.

application clear?

.7. Malfunction provisions Rule must specify what exceedances may be

excused, how the

standard is to be

applied, and who makes

the determination.

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