Review of Sraie Imple&ntation Plans and Revisions for Enforceability and Legal Sufficiency 

Review of State 

Implementation Plans 

and Revisions for 

Enforceability and Legal 

S u ff i ci en cy 

UNITED STATES ENVIRONMENTAL PROTECTION 

AGENCY 

Section 110: State Implementation Plans 

September 23,1987 

MEMORANDUM 

SUBJECT: 

Review of State Implementation Plans and 

Revisions 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 

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Review of Staie Implem&tation Plans and Revisions for Enforceability and Legal Sufficiency 

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. $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 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 reviews regulations as to their 

adequacy under applicable law 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 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 

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Review of State Implem&tation Plans and Revisions for Enforceability and Legal Sufficiency 

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 other 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. 

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Review of Stafe lmplernekation Plans and Revisions for Enforceability and Legal Sufficiency 

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: 

I 

Regional Administrators 

Regions I-X 

Regional Counsels 

Regions I-X 

Air Management Division Directors 

Regions I, I11 and IX 

Air and Waste Management Division Director 

Region I1 

Air, Pesticides, and Toxics Management Division 

Directors 

Regions IV and VI 

Air and Radiation Division Director 

Region V , 

Air and Toxics Division Directors 

Regions VII, VI11 and X 

cc: Deputy Regional Administrators 

Region I-X 

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Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency 

Regional Counsel 

Air Contacts 

Regions I-X 

Air Compliance Branch Chiefs 

Regions 11,111, IV, V, VI, IX 

Air Program Branch Chiefs 

Regions I-X 

Darryl Tyler, Director 

Control Programs Development Division 

Gerald Emison, Director 

Office of Air Quality Planning and Standards 

cc: John S. Seitz, Director 

Stationary Source Compliance Division 

Office of Air Quality Planning and Standards 

Alan W. Eckert 

Associate General Counsel 

Air Division 

Michael S. Alushin 

Associate Enforcement Counsel 

Air Enforcement Division 

UNITED STATES ENVIRONMENTAL PROTECTION 

AGENCY 

MEMORANDUM 

SUBJECT: 

Review of State Implementation Plans and 

Revisions for Enforceability and Legal 

Sufficiency 

FROM: 

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Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency 

Michael S. Aluchin 

Associate Enforcement Counsel for Air 

Enforcement 

Alan W. Eckert 

Associate General Counsel 

Air and Radiation Division 

John S. Seitz, Director 

Stationary Source Compliance Division 

Office of Air Quality Planning and Standards 

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 significant questions as to whether 

the regulation would be enforceable. 

Enforceability Criteria 

The notion of enforceability encompasses several concepts. At 

the most basic level, a regulation must be within the statutory 

authority of the promulgating agency. For example, some 

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Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency 

states have statutory restrictions or prohibitions on the 

promulgation of regulations more restrictive than the federal 

counterpart. Although we should generally defer to a State's 

interpretation of the scope of its authority, when there is real 

doubt we should, at a minimum, consult the responsible State 

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 Act 

requirements 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 

certain? 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 Conditions 

If changed circumstances affect an emission limit or other 

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Review of Statc lmpleme~tation Plans and Revisions for Enforceability and Legal Sufficiency 

requirement, the effect of changed conditions should be 

clearly specified. However, you should not approve state 

regulations which tie the applicability of VOC control 

requirements to the nonattainment status of the area and allow 

for automatic nullification of the regulations if the area is 

redesignated to an attainment status. Such regulations should 

continue to apply if an area is redesignated from 

nonattainment to attainment status unless a new maintenance 

demonstration supporting a change in the rule's applicability is 

submitted and approved by EPA. 

Standard of Conduct 

The regulation must be sufficiently specific so that a source is 

fairly on notice as to the standard it must meet. For example, 

"alternative equivalent technique" provisions should not be 

approved without clarification concerning the time period over 

which equivalency is measured as well as whether the 

equivalency applies on a per source or per line basis or is 

facility wide. 

Incorporation by Reference 

Some federal regulations are inappropriate for adoption by 

reference. For example, a state intending to enforce PSD 

regulations adopted by reference must adopt 40 C.F.R. 852.21, 

not 40 C.F.R. 551.166, 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. 

Transfer Efficiency 

Some states have attempted to provide particular VOC sources 

with relaxation's of compliance limits in return for 

improvements in the efficiency with which the sources use the 

pollutant 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 

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.. Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency 

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. 

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. 

The time frame or method employed must be sufficient to 

protect the standard involved. 

. 

Equivalency Provisions and Discretionary Emission Limits 

Certain provisions allow sources to comply via "bubbles" or 

"alternate equivalent techniques" or through mechanisms "as 

approved by the Director." These provisions must make it 

clear as to whether EPA approval of state granted alternative 

compliance techniques is required on a case-by-case basis in 

order for the changed mode of compliance to replace the 

existing federally enforceable requirement. If EPA case-bycase approval will not 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 

strategy and must meet other EPA policy requirements, 

including the "Emissions Trading Policy", 51 Fed. Reg. 43814 

(1986), in relevant instances. 

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 commensurate with 

regulatory requirements, and must be available for 

examination on request. The SIP must give reporting 

schedules and reporting formats. For example, these rules 

must require daily records if the SIP requires daily 

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Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency 

Conclusion 

We appreciate your attention to this matter and hope that the 

specific review for enforceability will be a further step in 

improving the overall SIP process and structure. To assist you, 

we have attached an enforceability checklist. This checklist 

should be included as part of your technical support packages 

in all future SIP packages. 

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 

compliance. Additionally, the recordkeeping must be required 

such that failure to do so would be a separate violation in 

itself. 

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 sufficient to 

protect the ambient standard involved. 

Exemptions 

If sources under a certain size are exempted from control 

requirements, the regulation must identify how the size of a 

particular source is to be determined. 

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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Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency 

Addresses: 

Regional Administrators 

Regions I-X 

Regional Counsels 

Regions I-X 

Air Management Division Directors 

Regions I, 111 and IX 

Air and Waste Management Division Director 

Region I1 

Air, Pesticides, and Toxics Management Division 

Directors 

Regions IV and VI 

Air and Radiation Division Director 

Region V 

Air and Toxics Division Directors 

Regions VII, VI11 and X 

cc: Deputy Regional Administrators 

Regions I-X 

Regional Counsel 

Air Contacts 

Regions I-X 

Air Compliance Branch Chiefs 

Regions 11,111, IV, V, Vi, and IX 

Air Program Branch Chiefs 

Regions I-X 

Darryl Tyler, Director 

Control Programs Development Division 

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