Technical Assistance Document for the Submission of

State/Local/Tribal Requests for Delegation and

Approval of Alternatives to Section 112 Rules,

Programs, or Requirements

40 CFR 63, Subpart E

U.S. Environmental Protection Agency

Office of Air Quality Planning and Standards

Information Transfer and Program Implementation Division

Durham, North Carolina

April 2001
ii

Table of Contents

1. Introduction ................................................................ 1

What is the purpose of this document? ......................................... 1

Who should use this document? .............................................. 1

What information does this document contain? ................................... 1

How is this document organized? ............................................. 2

What other places can I look for help? ......................................... 3

How do I get copies of this document? ......................................... 3

2. General Information ........................................................... 4

What is the purpose of subpart E? ............................................ 4

What is a delegation? ...................................................... 4

Why should I request delegation of section 112 requirements? ........................ 4

How do I get delegation of section 112 requirements? .............................. 5

Can I implement just part of a program? ........................................ 5

What is the history of section 112 standards delegation? ............................ 6

For which types of requirements can I request delegation? .......................... 7

Which approval option should I use? .......................................... 8

Table 1. Which alternative requirement approval option should I use? .................. 9

For which types of requirements can I substitute an alternative? ....................... 9

What issues should I consider when developing alternative requirements? .............. 10

Emission limitations ................................................. 11

Work Practices ................................................... 11

Testing .......................................................... 11

Equipment Standards ............................................... 12

Compliance Assurance Measures ...................................... 12

General Provisions ................................................. 13

3. Straight Delegation (§63.91) ................................................... 15

What is straight delegation? ................................................ 15

What authority will I have under straight delegation? .............................. 15

How do I get delegation of unchanged Federal section 112(l) standards? ............... 16

What is the approval process? .............................................. 18

Figure 1. Approval process for straight delegation ............................... 19

Do I need to repeat this demonstration to request delegation of additional unchanged Federal

section 112(l) standards? ............................................ 20

4. Rule Adjustment (§63.92) ................................................... 21

What is rule adjustment? ................................................... 21
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What types of adjustments are allowable? ...................................... 21

How do I get approval of a rule adjustment? .................................... 22

What is the process for approval of a rule adjustment? ............................ 23

Figure 2. Approval process for rule adjustment ................................. 24

5. Rule Substitution (§63.93) ..................................................... 25

What is rule substitution? .................................................. 25

How do I get approval of a rule substitution? ................................... 25

What is the process for approval of a rule substitution? ............................ 26

Figure 3. Approval process for rule substitution ................................. 27

How do I show equivalency when my requirements differ in form from the Federal

requirements? ..................................................... 28

6. Equivalency by Permit (§63.94) ................................................. 29

What is equivalency by permit? .............................................. 29

What are the limits to EBP? ................................................ 29

Table 2. Summary of Benefits and Limits of the EBP Option ....................... 30

What is the process for determining equivalency by permit? ......................... 30

What is up-front approval? ................................................. 30

What is the process for up-front approval? ..................................... 31

Figure 4. Process for equivalency by permit up-front approval ...................... 32

What information do I include in my up-front request? ............................. 33

What is the process for approval of alternative requirements through EBP? ............. 34

Figure 5. Process for approval of alternative requirements through equivalency by 

permit .......................................................... 35

What information do I include in my request for approval of alternative requirements? ..... 36

7. State Program Approval (SPA) (§63.97) ......................................... 37

What is SPA? .......................................................... 37

What are the benefits to using the SPA option? .................................. 37

How do I get State Program Approval? ....................................... 37

What is the process for State Program Approval? ................................ 38

What is up-front approval? ................................................. 38

What is the process for up-front approval? ..................................... 39

Figure 6. Process for SPA up-front program approval ............................ 40

What information do I include in my up-front request? ............................. 41

What is the process for approval of alternative requirements through SPA? ............. 42

Figure 7. Process for approval of alternative requirements through SPA ............... 43

What information do I include in my request for approval of alternative requirements? ..... 44

What are the approval criteria for alternative requirements under SPA? ................ 44

How can I make changes to an approved up-front or alternative requirement submittal? .... 45
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8. Accidental Release Prevention Programs (§63.95) ................................... 46

What is the purpose of §63.95? ............................................. 46

How do I get delegation of the Federal program? ................................ 47

How do I get approval to implement an alternative accidental release prevention 

program? ........................................................ 48

Can I implement just part of a program? ....................................... 48

What criteria must my alternative accidental release prevention program meet for approval? . 49

What materials must I submit for delegation or approval of an alternative program? ....... 50

Governor’s Letter ................................................. 50

Attorney General’s Certification ....................................... 51

Where can I get more information about accidental release prevention programs? ........ 52

9. Radionuclide NESHAPs ..................................................... 53

What are radionuclide NESHAPs? ........................................... 53

Why are the section 112 radionuclide standards of special concern? .................. 54

How is implementation of radionuclide NESHAPs affected by the part 70 program? ...... 54

How do I get delegation of unchanged radionuclide NESHAPs? ..................... 55

What authority will I have under straight delegation for radionuclide NESHAPs? ......... 56

Can I receive automatic delegation of radionuclide NESHAPs? ...................... 57

What S/L/T personnel can carry out radionuclide program activities? .................. 57

May I get approval to implement an alternative radionuclide rule, program, or requirement? . 57

What other information is available for radionuclide standard delegation? ............... 58

Example Intragovernmental Agreement (IGA) ............................. 59

10. Review and Withdrawal of Approval (§63.96) ..................................... 61

What is the review process? ................................................ 61

What is the withdrawal process? ............................................. 61

What are the criteria for withdrawal? ......................................... 62

Can I voluntarily withdraw my approved rule, program, or requirement? ............... 62

Can I get delegation again after a withdrawal? ................................... 63

11. Equivalency Demonstrations .................................................. 64

What is an equivalency demonstration? ........................................ 64

How do I prepare the Equivalency Demonstration Table? .......................... 64

Table 3. Example Equivalency Demonstration Table .............................. 65

What information do I put in the Equivalency Demonstration Table? .................. 66

What issues should I address in my equivalency demonstration table? ................. 67

Table 4. Subjects that should be covered in an equivalency demonstration table. ......... 67

What information do I include in my Narrative Description? ......................... 69

How will equivalency be determined? ......................................... 69
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Applicability ...................................................... 69

Sources ................................................... 69

HAPs .................................................... 70

Exemptions ................................................ 70

Compliance Dates ................................................. 70

Emission Standards ................................................ 70

Units of Measure ............................................ 70

Emission Limits ............................................. 70

Work Practices ................................................... 71

Performance Test Methods .......................................... 71

Compliance Assurance Measures (Monitoring, Recordkeeping, and Reporting) .... 72

Monitoring and Recording Frequency ............................. 72

Table 5. Determining Appropriate Monitoring/Recording Frequency ...... 73

Reporting and Recordkeeping .................................. 73

Plans ........................................................... 73

General Provisions ................................................. 74

12. Submittal Package Contents .................................................. 75

What is a submittal? ...................................................... 75

What items do I include in my request for straight delegation? ....................... 75

What items do I include in my request for approval of an alternative rule, program, or

requirement? ..................................................... 76

What information should my cover letter contain? ................................ 77

Sample Cover Letter ............................................... 77

What information do I include on my Completeness Checklist? ...................... 78

Example Completeness Checklist for Equivalency Demonstration Packages ....... 79

List of Figures

Figure 1. Approval process for straight delegation ............................... 19

Figure 2. Approval process for rule adjustment ................................. 24

Figure 3. Approval process for rule substitution ................................. 27

Figure 4. Process for equivalency by permit up-front approval ...................... 32

Figure 5. Process for approval of alternative requirements through equivalency by

 permit .................................................... 35

Figure 6. Process for SPA up-front program approval ............................ 40

Figure 7. Process for approval of alternative requirements through SPA ............... 43

List of Tables
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Table 1. Which alternative requirement approval option should I use? .................. 9

Table 2. Summary of Benefits and Limits of the EBP Option ....................... 30

Table 3. Example Equivalency Demonstration Table .............................. 65

Table 4. Subjects that should be covered in an equivalency demonstration table. ......... 67

Table 5. Determining Appropriate Monitoring/Recording Frequency .................. 73

1. Introduction

What is the purpose

of this document? 

This document is a non-binding guidance document. It is intended

to provide informal assistance to State/Local/Tribal Agencies

seeking EPA approval of delegation requests authorized by

Section 112 of the Clean Air Act (CAA). It does not substitute

for, or expand upon the substance of the requirements contained

in section 112 or the subpart E regulations.

Who should use this

document?

We, the EPA, designed this document to help State/Local/Tribal

agencies (S/L/T or you) understand the rule for Approval of State

Programs and Delegation of Federal Authorities for Hazardous

Air Pollutants (also known as 40 CFR 63, subpart E), which was

extensively revised in 2000. This document was also designed to

help S/L/T agencies in preparing a submittal for approval to a

CAA section 112 rule, program, or requirement. A separate

document has been created to assist the EPA Regional Offices in

the evaluation of these submittals. These guidance documents

replaces all previous guidance, which is no longer current since the

promulgation of the amendments to subpart E.

What information

does this document

contain?

This document includes an overview of the purpose and history of

subpart E, but predominantly contains information to assist you

with seven primary activities.

C How to request and receive delegation of Federal section 112

authorities 

C How to request and receive approval of requirements that

may differ from the requirements of Federal section 112

standards [many of these standards are part 61 or part 63

National Emission Standards for Hazardous Air Pollutants

(NESHAPs) for source categories, also referred to as

maximum achievable control technology standards (MACT
2

standards)]

C The types of alternative requirements that are approvable

C The options available to you in requesting approval of

alternative requirements

C How approval under each option is processed

C What information is required under each approval option

C How to prepare an equivalency demonstration

How is this

document

organized?

This chapter provides a brief introduction to this document. 

Chapter 2 provides important information that applies to all

sections of the rule, and it includes a review of the options

contained in the regulation that you can use when submitting a

request for approval of delegation and/or alternative requirements. 

In addition, Chapter 2 provides information about the types of

alternatives that are approvable. 

The remaining chapters of this document correspond to separate

sections of the rule. Chapter 3 gives detailed information about

§63.91, how to obtain delegation of Federal authorities and the

requirements common to all the options for approval of alternative

requirements. Chapters 4, 5, 6, and 7 correspond to §§63.92,

63.93, 63.94, and 63.97, respectively. These chapters detail

information required and the processes for approval of alternative

requirements under rule adjustment, rule substitution, equivalency

by permit, and State program approval. Chapter 8 explains the

requirements of §63.95 for approval of an alternative accidental

release prevention program. Chapter 9 explains the requirements

for delegation of part 61 radionuclide NESHAPs. Chapter 10

briefly describes §63.96, the procedures for review and

withdrawal of delegation. 

Chapter 11 contains a discussion of equivalency demonstrations

and how to prepare them. Chapter 12 enumerates the information

you need to include in your requests for delegation. Appendix A

contains a copy of the rule language for 40 CFR 63, subpart E.
3

What other places

can I look for help?

When using this document, remember that it does not replace or

amend the final rule and covers only requirements published on or

before 9/14/00. You should read the rule itself carefully, and

keep up with new requirements printed after this date by

periodically checking the Federal Register and the Code of

Federal Regulations (CFR) at 40 CFR 63, subpart E. You can

download Federal Register notices by going to the Government

Printing Office (GPO) website at

www.access.gpo.gov/su_docs/aces/aces140.html. 

We’ve included a copy of the final rule in Appendix A (as

published in the Federal Register, 9/14/00, 65 FR 55810), so

you can reference the rule while you’re using this document. 

How do I get copies

of this document?

You can obtain a copy of this document at EPA’s Unified Air

Toxics Website (www.epa.gov/ttn/uatw). Look under Rules

and Implementation, or

www.epa.gov/ttn/uatw/pcem/pcempg.html.
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2. General Information

What is the purpose

of subpart E?

40 CFR 63, subpart E implements the provisions of section 112(l)

of the Clean Air Act (Act) that provide the opportunity for you, the

S/L/T, to implement and enforce Federal section 112 standards. In

addition to providing the process and criteria necessary for you to

receive delegation of the Federal standards, the rule also

establishes several ways in which you can receive approval to

implement and enforce requirements that differ from the Federal

requirements. While these alternative requirements may differ from

the Federal requirements, they must be at least as stringent.

What is a

delegation?

A delegation occurs when a responsibility normally taken on by one

body is passed on to another. For the purposes of this document,

a delegation is the official approval for an S/L/T agency to

implement and enforce Federal section 112 requirements. After

delegation, the S/L/T becomes the primary agency for

implementation and enforcement, but EPA reserves the right to

review, and in some cases, override the delegated agency’s

actions. 

Why should I

request delegation

of section 112

requirements?

There are several advantages to taking delegation of the Federal

standards. By taking straight delegation of the Federal standards

pursuant to subpart E, you:

• Obtain authority to implement the Federal requirements in your

jurisdiction

• Obtain authority to make some decisions about applicability,

testing, compliance, monitoring, reporting and recordkeeping

• Are identified as the primary point of contact and enforcement

authority

• Will receive reports from sources, which may reduce dual

reporting.

In addition to the benefits of straight delegation, when you request

approval of alternative requirements, the following opportunities

become available to you:
5

• Tailor requirements to the sources in your jurisdiction

• Implement S/L/T requirements in place of Federal requirements

• Increase the stringency of Federal requirements

How do I get

delegation of

section 112

requirements?

You must submit a request for delegation of each individual section

112 rule you wish to implement and enforce. However, you can

request delegation of multiple Federal section 112 requirements at

one time. You must submit information showing that you meet the

requirements for straight delegation (§63.91) to implement and

enforce the Federal requirements as they are written. You must

meet these same requirements plus the additional requirements in

either §§63.92, 63.93, 63.94, 63.95, or 63.97 if you wish to

implement and enforce requirements that differ from the Federal

requirements.

Can I implement just

part of a program?

We encourage you to take full delegation whenever possible, but

partial delegation is an option available to you. In cases of partial

delegation, the portion of requirements delegated must be clearly

separable from the portion not delegated. There are two major

types of partial delegation, these are:

• You accept the authority to implement and enforce only some

of the requirements in a Federal section 112 regulation

• You accept the authority to implement and enforce all the

requirements of a Federal section 112 or S/L/T rule to only a

defined universe of sources (e.g., major sources).

There are two ways in which you may obtain partial delegation,

these are:

• You request partial delegation

• You request full delegation, but are only granted partial

delegation due to a portion of your alternative requirements or

enforcement authority that is found unapprovable. 
6

If your request for delegation only qualifies for partial delegation,

you will be notified and given the opportunity to revise or withdraw

your delegation request before the public comment period (see

Figures 1-7).

What is the history

of section 112

standards

delegation?

Prior to 1990, the Clean Air Act (Act) provided the opportunity

for the S/L/Ts to implement and enforce the NESHAP program,

which required the EPA to establish Federal emission standards for

non-criteria, hazardous air pollutants. Provisions set forth in section

112(d)(1) originally allowed you to develop and submit to the

Administrator a procedure for implementing and enforcing these

emission standards. If found adequate, the Administrator would

delegate authority to implement and enforce these standards to you. 

The 1990 Amendments to the Act revised section 112 extensively,

removed delegation provisions from 112(d)(1), and added section

112(l), which now provides the mechanism for delegating section

112 standards and programs to the S/L/Ts. Section 112(l)

explicitly allows approval of S/L/T programs that differ from the

Federal program as long as the S/L/T standard is at least as

stringent as otherwise applicable Federal section 112 rules.

The 2000 amendments to 40 CFR 63, subpart E that implements

section 112(l) revise the procedures and criteria for approving

S/L/T measures. These changes include the addition of options for

demonstrating equivalence with the Federal requirements,

expediting the approval process, clarifying what must be done to

obtain delegation, and clarifying which general provisions

authorities may be delegated to you.
7

For which types of

requirements can I 

request delegation?

You may request delegation of the authority to implement and

enforce:

• All existing and future Federal rules promulgated in

accordance with section 112 of the Act as amended in

1990, as promulgated without changes (straight delegation). 

To date, delegable rules have been promulgated to

implement sections 112(d), (h), and (r), but as others are

developed, such as rules implementing sections 112(f) and

(k), those will also be available for delegation. Section

63.91 establishes the procedures and criteria necessary for

this delegation request.

• An S/L/T rule or program containing requirements different

from the Federal regulation that establishes limitations on

the potential to emit hazardous air pollutants. Appropriate

candidates for alternative approval include S/L/T rules,

programs, emission standards, or requirements that pertain

to air toxics. In some cases, other alternative rules, such as

those developed for volatile organic compounds (VOC),

particulate matter (PM), or lead (Pb) developed under

section 110 of the Act that indirectly control HAP

emissions may be substituted for section 112 requirements. 

 

 Sections 63.92, 63.93,

63.94 and 63.97 each present different options for you to

use in your request for approval of an alternative rule,

program, emission standard, or requirement. These

sections are designed to be used in different situations,

depending on the type of alternative requirement for which

delegation of authority is sought. Each has a different

process and criteria applicable to the request. 

• Accidental release prevention programs (part 68). 

Sections 63.91 and 63.95 establish the procedures and

criteria applicable to this straight delegation request. The

provisions of either §63.92 or §63.93 must also be

followed for approval of an accidental release prevention

program that differs from the Federally required program. 

 
8

Which approval

option should I use?

The mechanism you choose to use for your request for approval of

an alternative rule, program, or requirement should be based on the

situation under which you are making this decision. Table 1

presents each option and the conditions under which the use of

each is appropriate. Your responses to the following questions will

help guide you through Table 1. 

• Exactly how will your rule, program, or requirement differ

from the Federal requirement?

• How many sources do you intend to cover with your

alternative rule, program, or requirement?

• How many source categories do you intend to cover?
9

You should use . . . If you want to . . . If your alternative

requirements. . . 

And . . .

Straight delegation

(§63.91)

assume the

authority to

implement and

enforce federal

section 112

requirements as

they are written

do not exist (i.e., you

do not wish to institute

requirements that differ

from the federal section

112 requirements)

Rule adjustment

(§63.92)

substitute your rule

for a Federal

Section 112

regulation

are structurally very

similar to those in the

corresponding Federal

rule

your alternative requirements

are clearly at least as

stringent as those of the

Federal rule

Rule substitution 

(§63.93)

substitute your rule

for a Federal

Section 112

regulation

are structurally different

from the corresponding

Federal rule

your alternative requirements

are not clearly as stringent or

are more complex than the

Federal rule

Equivalency by

permit

(§63.94)

substitute alternative

requirements in the

form of permit terms

and conditions

will affect few sources

(e.g., there are only a

few sources in the

source category)

you agree to accept

delegation for all sources in

the category

State program

approval

(§63.97)

have the authority to

implement some or

all Federal emission

standards through

title V permits

will be incorporated into

the Federal emission

standards using permit

terms and conditions 

you have a mature air toxics

program with many

regulations affecting source

categories regulated by

Federal section 112 rules or

requirements

Accidental Release

Prevention

Programs 

(§63.95)

take delegation of

unchanged federal

requirements or

substitute alternative

requirements in an

accidental release

prevention program

pertain to any portion of

an accidental release

prevention program 

you follow the procedures of

§63.91 for delegation of

unchanged federal

requirements and either

§63.92 or §63.93 for

substitution of alternative

requirements 

Table 1. Which alternative requirement approval option should I use?

For which types of

requirements can I

substitute an

alternative?

In general, when you receive delegation, you are allowed to

approve certain minor and intermediate changes to compliance

assurance measures on a source-specific basis. However, if you

wish to develop alternative requirements that go beyond the minor

and intermediate changes (explained further in §63.91 and chapter

3 of this document) or that apply to a whole source category, you

must obtain approval of those alternative requirements through

§63.91 and either §§63.92, 63.93, 63.94, or 63.97.
10

For these latter types of changes, the alternative requirements will

be approved if, taken as a whole, they meet the following criteria:

• Affect at least all the same emission sources

• Provide for at least as stringent a level of control

• Provide at least as stringent compliance and enforcement

measures as considered in the package as a whole

• Will result in emission reductions at least equal to the

Federal requirements.

Some guidelines appear in the proposed and final subpart E rules

and the preambles and are explained in greater detail here to help

you distinguish the types of adjustments that will be considered

equivalent to the Federal requirements.

What issues should

I consider when

developing

alternative

requirements?

The major issue you must consider while developing alternative

requirements is equivalence to the corresponding Federal standard. 

Your alternatives must be holistically equivalent to the Federal

requirements. This means that the aggregate of your alternative

requirements must be equivalent in emissions reduction and level of

control as that of the aggregate of the Federal requirements. This is

true whether you are developing an entirely new rule or replacing

only some parts of the Federal rule, program, or requirement with

alternative requirements.

Chapter 10 provides detailed information about equivalency

demonstrations and presents some guidelines to use in determining

the equivalency of alternative requirements. However, it is useful to

touch upon the major categories of requirements for which you may

wish to substitute alternatives. These groups include the following:

• Emission limitations

• Work practices

• Performance and compliance testing 

• Equipment standards

• Compliance assurance measures

• General provisions

Emission limitations Any alternative emission limits must be equivalent to the Federal

rule’s emission limits at the same level of production. If your
11

emission limits are in a different form from the Federal standard,

you may need to include background information that shows

equivalent emission reductions with the alternative emission limit.

In some cases a more stringent emission limit may be accompanied

by less stringent compliance assurance measures. Since

equivalency is determined on a holistic basis, some counterbalances

such as this may be made.

Work Practices “Work practices” refers to requirements in the Federal section 112

standards that are developed in lieu of emission standards

according to the specific requirements of section 112(h). All

elements of your alternative work practice and any associated

compliance assurance measures must be equivalent, as a whole, to

the corresponding Federal requirements. 

You may request approval of an alternative work practice and its

associated compliance measures. For approval, the elements of

the alternative work practice and any associated compliance

measures (which you should enter into the equivalency

demonstration table) must be equivalent, as a whole, to the

corresponding Federal requirements. This means that the

alternative control strategy should result in at least equivalent

emissions reductions or guarantee the same level of control as that

of the corresponding Federal requirements.

Testing There are two possible situations under which you may develop an

alternative test method. In one situation, you may wish to follow

the requirements of a Federal rule or requirement, but seek to use a

different test method than that specified. In this case your

alternative test method must be equivalent to the test method

required by the Federal rule. The alternative test method must

perform as well and as accurately as the Federally required test

method in evaluating the control equipment or control strategy.

The other situation in which you may wish to use an alternative test

method is if you are seeking approval of an alternative rule or
12

program. In this case, a test method other than that of the

corresponding Federal rule may be more appropriate to your rule

or program. In this situation, the alternative rule and its associated

performance test method must be holistically equivalent to the

corresponding Federal rule and test method. The test method must

ensure that the control equipment or control strategy performs well

enough to achieve the same emissions reductions required by the

Federal rule.

Equipment Standards You may wish to substitute the use of a different equipment

standard for a Federal standard. Provide any data available to

show that an alternative control device/emission control practice

achieves at least equal emission reductions as that of the Federally

required equipment.

Compliance Assurance

Measures 

(Monitoring, Reporting, and

Recordkeeping)

You are given the authority to make small changes to monitoring,

reporting, and recordkeeping when you receive delegation of a

standard. However, we may review and disapprove the

alternatives you have approved in some cases. Sources subject to

your approved alternatives would revert to the compliance

assurance measures previously enforced in those instances.

In general, you will not be approved an alternative monitoring,

recordkeeping, or reporting requirement if it is classified as a

“major change”*. In addition, if you submit an alternative

emissions, equipment, or work practice standard, the monitoring,

recordkeeping, and reporting requirements for the alternative

standard should be equivalent, holistically, to the corresponding

Federal requirements. 

To enable Federal review of your alternative test and monitoring

methods, you must submit copies of approved alternative test

methods and monitoring provisions, along with copies of the

superseded requirements, to the Emission Measurement Center at:

Chief, Source Measurement and Technology Group

U.S. EPA (MD-19)
13

Research Triangle Park, NC 27711

FAX: (919) 541-1039.

Similarly, you must submit a record of alternatives you approve for

recordkeeping and reporting to your regional office and the

following address at least semi-annually: 

Chief, Stationary Source Enforcement Branch

U.S. EPA (Mail Code 2242A)

401 M St SW

Washington, D.C. 20460 

 FAX: (202) 564-0068

We will compile a database of EPA approved alternatives and

approvals made by reviewing agencies for use in future decision

making. This will be available on the Applicability Determination

Index (ADI), which can be found at

http://es.epa.gov/oeca/eptdd/adi.html.

* See §63.90 for definition of major change for monitoring and

recordkeeping/reporting

General Provisions

What are the General

Provisions (GP)?

The GP are general information and requirements that apply to all

the section 112 standards of part 63 or part 61, unless specifically 

overridden by a particular standard. Located in subpart A of part

63 or subpart A of part 61 of 40 CFR, the GP are critical

administrative and compliance-related elements that supplement the

requirements for specific source categories in parts 63 and 61. 

Since all the part 61 and part 63 standards contain some elements

of the GP standards, you must demonstrate in your equivalency

submittal that alternative rules, emission standards, or requirements

contain standards similar and equivalent to the GP. This

equivalency demonstration should be made in the same way as that

for the specific section 112 standard.

Two previously issued guidance memos have summarized the

procedure that will be used for the equivalency demonstration. 

These are:
14

• July 10, 1998 Seitz memo, “Delegation of 40 CFR part 63

General Provisions Authorities to State and Local Air

Pollution Control Agencies”

• February 26, 1993, Gilbert H. Wood memo “Handling

Requests for Minor/Major Modifications/Alternative

Testing and Monitoring Methods or Procedures Approvals

and Disapprovals.”

In addition, the EPA Regional Offices will provide firm guidelines

for decision making in the process of delegating part 63 and part

61 General Provisions authorities to the S/L/T agencies.

However, the guidance in the July 10, 1998 memo will be

superseded by the subpart E revisions.

3. Straight Delegation (§63.91)
15

What is straight

delegation?

Straight delegation means you, the S/L/T, will accept responsibility

for implementation and enforcement of the Federal section 112

standards as they are written, without any changes. 

Section 63.91 contains the requirements that must be followed for

straight delegation. Meeting these administrative requirements

allows you to show that you have adequate authority to implement

and enforce the Federal standard. 

Section 63.91 also contains criteria that are common to all the

options for approval of alternative requirements. The same

administrative requirements of §63.91 necessary for straight

delegation must also be followed for approval of an S/L/T rule

with requirements that differ from the Federal standard. These

criteria must be followed in addition to the criteria for approval of

the alternative requirements contained in §§63.92, 63.93, 63.94,

63.95 or 63.97.

What authority will I

have under straight

delegation?

In addition to implementing and enforcing the Federal standard(s)

as they are, other authorities may be delegated to you at your

EPA Regional Office’s discretion. The following authorities may

be delegated to you under straight delegation:

• Responsibility for determining applicability

• Responsibility for determining compliance with operation

and maintenance requirements

• Responsibility for determining compliance with nonopacity, opacity, and visible emission standards

• Approval of site-specific test plans

• Approval of minor and intermediate alternatives to test

methods*

• Approval of necessary shorter sampling times and volumes

• Granting waivers of performance testing

• Approval of site-specific monitoring test plans

• Approval of minor and intermediate alternatives to

monitoring*

• Approval of adjustments to time periods for submitting
16

reports

• Approval of minor alternatives to recordkeeping and

reporting

With Title V program approval you will also be delegated:

• Responsibility for approving compliance extensions

• Authority to approve construction and reconstruction

applications.

*See §63.90 for definitions of these minor and intermediate alternatives

How do I get

delegation of

unchanged Federal

section 112(l)

standards?

To receive delegation of Federal section 112 standards, you must

request delegation for those specific standard(s) in writing and

your request must be approved by the Administrator. Section

63.91 requires that you submit the following 5 items to the

Administrator:

1. A written finding by the State Attorney General (or

General Counsel for Local or Tribal agencies) that you

have the following authorities:

• Enforcement authorities that meet the requirements of

40 CFR 70.11

• Authority to request compliance information

• Authority to inspect sources and records 

• Retained enforcement authority if you have delegated

authorities to a Local agency, unless that agency has

authorities that meet the criteria of section 70.11

 OR

• Interim or final Title V program approval

2. A copy of the State statute, regulation, or requirement that

grants you authority to implement and enforce the rule,

program, or requirement upon approval.
17

3. A demonstration that you have adequate resources to

implement and enforce the rule, program or requirement

upon approval, including the following items:

• A description of the scope, structure, coverage, and

processes of your agency’s program.

• A description of the organization and structure of your

agency 

• A description of your capacity to carry out the S/L/T

program, including the number, occupation and

general duties of employees.

4. An implementation schedule for the rule, program or

requirement after approval

5. A plan to assure compliance by all subject sources,

including a description of your compliance and

enforcement program and inspection strategy.

This demonstration only needs to be made once, so that in future

requests for straight delegation of Federal section 112 standards,

you only need to reference this demonstration and reaffirm that

you still meet these criteria.
18

What is the approval

process?

The steps to the initial approval process for straight delegation are

as follows:

1. You submit a request for approval to your Regional

Administrator

2. We review it for completeness

3. If incomplete, we will notify you of necessary revisions and

process any revised request as a new request for approval

4. After receipt of a complete request, we will determine

whether the approval criteria have been met

5. If the approval criteria are not met, we will notify you of

necessary revisions and process any revised request as a

new request for approval, or we may publish a notice of

disapproval in the Federal Register

6. If the approval criteria are met, we will propose to

approve and seek public comment for 30 days through a

Federal Register notice

7. If there are no significant adverse comments, or significant

comments are adequately addressed, we will publish a

notice of approval in the Federal Register and incorporate

a reference into §63.99 and §63.14

8. If there are significant adverse comments which are not

adequately addressed, we will publish a notice of

disapproval in the Federal Register.

9. We will either approve, partially approve, or disapprove

the request within 180 days of receipt of a complete

application

A flow chart for this process is shown in Figure 1.
19

§63.91: Straight Delegation

S/L/T submits one-time request that 

satisfies the up-front approval criteria in 

§63.91(d) and that requests delegation of 

unchanged Federal section 112 rules.*

S/L/T corrects

deficiencies.

Yes

Yes

No

No

30 days

*In most cases, title V program approval also includes approval of a S/L/T 

mechanism for straight delegation. If so, all that is needed for each 

Federal section 112 rule is a letter to the EPA region from the S/L/T 

requesting delegation.

Is the request

complete?

Is the request

approvable?

180 days

When does the S/L/T

 receive delegation of the unchanged 

section 112 standards?

EPA proposes to approve in the Federal 

Register and seeks public comments

S/L/T notifies EPA 

of MACT standards 

for which it will 

accept delegation. 

S/L/T automatically 

receives delegation 

of all new MACT 

standards. 

or

Yes

Are there significant adverse No

comments for EPA and/or

 the S/L/T to address?

EPA and/or the 

S/L/T cannot 

address comments; 

EPA publishes a 

notice 

disapproving the 

§63.91 up-front 

submittal. 

Request altered to 

address comments; 

EPA publishes a 

notice approving 

the §63.91 up-front 

submittal. 

or

EPA publishes a notice 

approving the §63.91 

up-front submittal. 

If S/L/T cannot correct deficiencies in the 

complete request, EPA publishes a notice 

disapproving the §63.91 delegation 

request.
20

Figure 1. Approval process for straight delegation
21

Do I need to repeat

this demonstration

to request

delegation of

additional

unchanged Federal

section 112(l)

standards?

After approval is attained once, you may not need to go through

this process again for straight delegation of other section 112

standards. For delegation of additional standards, submit a

request including the following information:

1. The names of the standards you are requesting delegation

of

2. A copy of the initial straight delegation approval

3. A statement that the criteria met in the initial delegation

approval have not changed

To further streamline the process for straight delegation, you

should take the following actions:

• List all standards for which you seek delegation in the

initial demonstration. 

• Note whether you wish future standards to be delegated to

you automatically (if you have the appropriate authority),

or if you will request delegation on a case-by-case basis. 

If you request additional delegations on a case-by-case

basis, EPA may use a direct final rulemaking to streamline

delegation of these section 112 requirements.
22

4. Rule Adjustment (§63.92)

What is rule

adjustment?

Rule adjustment is an option you can use to seek approval of an

alternative rule, emission standard, or requirement that is clearly at

least as stringent as and very similar in structure to the

corresponding Federal rule. 

This option can be used to accommodate specific, minor

adjustments to the Federal rule. Another approval option should

be used if there is any ambiguity with respect to the stringency of

the alternative or if any requirement differs in form from the Federal

rule.

You may seek approval of your alternative rule, emission standard,

or requirement through rule adjustment only after the corresponding

Federal standard is promulgated.

What types of

adjustments are

allowable?

Section 63.92 of 40 CFR 63 lists specific adjustments that are

allowed under this option. These are:

• Lowering a required emission rate or de minimis level

• Adding a design, work practice, operation standards,

emission rate, or similar requirement

• Increasing a required control efficiency when a standard

specifies a control device (e.g., 98% HAP control

efficiency rather than 95% HAP control efficiency)

• Increasing the frequency of required reporting, testing,

sampling, or monitoring

• Adding information required for records or reports

• Decreasing the amount of time to come into compliance

• Adding control requirements to additional emission points

or sources within a source category

• Minor editorial, formatting, and other nonsubstantive

changes (e.g., changing the name of an administrator,

changing numbering/labeling scheme)

• Identical alternative requirements from a state-wide rule that

have already been approved for another agency within the

same state

• Any adjustments allowed in a specific section 112 rule
23

How do I get

approval of a rule

adjustment?

You must submit two main items for rule adjustment approval. 

These are:

1. The terms and conditions of your alternative rule, emission

standard, or requirements in any of the following forms:

• S/L/T rules 

• Issued Title V permits

• Issued Title V general permits

• Issued Federal New Source Review (NSR) permits.

2. A demonstration that your alternative rule, emission

standard, or requirement is equivalent to the Federal rule. 

An equivalency demonstration is required under each alternative

approval option, but is particularly important to rule adjustment in

that your alternative must be clearly equivalent to or more stringent

than the Federal rule, or it will be disapproved under rule

adjustment and considered under one of the other options.

An example equivalency demonstration is displayed in Chapter 10.
24

What is the process

for approval of a

rule adjustment?

As with all the options for approval of alternative programs, you

must meet the criteria for straight delegation in §63.91(d). The

additional steps to the approval process for rule adjustment are as

follows:

1. You submit a request for approval to your Regional

Administrator

2. We review it for completeness

3. If incomplete, we will notify you of necessary revisions and

process any revised request as a new request for approval

4. After receipt of a complete request, we will determine

whether the approval criteria have been met 

5. If the approval criteria are not met, we will notify you of

necessary revisions and process any revised request as a

new request for approval, or we may publish a notice of

disapproval in the Federal Register

6. If the approval criteria are met, we will publish a notice of

approval in the Federal Register and incorporate a

reference into §63.99

7. We will either approve, partially approve, or disapprove

the request within 60 days of receipt of a complete

application

A flow chart for this process is shown in Figure 2.
25

§63.92: Rule Adjustment

S/L/T corrects

deficiencies.

No

No

Yes

Yes

Is the request

complete?

Is the request

approvable?

S/L/T submits a request to adjust a Federal 

section 112 rule that satisfies the criteria 

in §63.92(b) and §63.91(d). 

60 days

EPA publishes approval of the §63.92 

delegation request in the Federal Register.

If S/L/T cannot correct deficiencies in the 

complete request, EPA publishes a notice 

disapproving the §63.92 delegation 

request.

Figure 2. Approval process for rule adjustment
26

5. Rule Substitution (§63.93)

What is rule

substitution?

Rule substitution is an option you can use to seek approval of one

or more alternative rules, emission standards, or requirements that

are not clearly equivalent to, or the form of the standard differs

from that of the corresponding Federal rule. A rule may also be

approved under this option if it does not qualify for approval under

rule adjustment (§63.92).

You may seek approval of your alternative rule, emission

standard, or requirement through rule substitution after

promulgation of the final Federal rule.

How do I get

approval of a rule

substitution?

The two major items that you must submit for rule substitution

approval are:

1. The terms and conditions of your alternative rule, emission

standard, or requirements in any combination of the

following forms:

• S/L/T rules, regulations, guidance*

 • State permits* 

• Issued Title V permits

• Issued Title V general permits

• Issued Federal New Source Review (NSR) permits

• Issued board and administrative orders

• Permits issued pursuant to permit templates.

2. A demonstration that your alternative rule, emission

standards, or requirement is equivalent to the Federal rule. 

* guidance and State permits become Federally enforceable and may not be

modified without EPA approval if used to demonstrate equivalency

An equivalency demonstration is required under each alternative

approval option (an example equivalency demonstration is

displayed in Chapter 10). Holistically, your alternative must be

equivalent to or more stringent than the Federal rule, or it will be

disapproved.
27

What is the process

for approval of a

rule substitution?

As with all the options for approval of alternative programs, you

must meet the criteria for straight delegation in §63.91(d). The

additional steps to the approval process for rule substitution are as

follows:

1. You submit a request for approval to your Regional

Administrator

2. We review it for completeness

3. If incomplete, we will notify you of necessary 

revisions and process any revised request as a new 

request for approval

4. After receipt of a complete request, we will determine

whether the approval criteria have been met 

5. If the approval criteria are not met, we will notify you of

necessary revisions and process any revised request as a

new request for approval, or we may publish a notice of

disapproval in the Federal Register

6. If the approval criteria are met, we will propose to

approve and seek public comment for a minimum of 30

days through a Federal Register notice

7. If there are no significant adverse comments, or significant

comments are adequately addressed, we will publish a

notice of approval or partial approval in the Federal

Register and incorporate a reference into §63.99 and

§63.14

8. If there are significant adverse comments that are not

adequately addressed, we will publish a notice of

disapproval in the Federal Register

9. We will either approve, partially approve, or disapprove

the request within 180 days of receipt of a complete

application. 

A flow chart for this process is shown in Figure 3.
28

§63.93: Rule Substitution

No

No

Yes

No

S/L/T submits a request to substitute State 

requirements which differ substantively 

from a Federal section 112 rule and that 

meet the criteria in §63.93(b) and §63.91(d). 

Yes

Yes

Is the request

complete?

Is the request

approvable?

S/L/T corrects

deficiencies.

EPA proposes to approve in the Federal 

Register and seeks public comments. 

Are there significant adverse 

comments for EPA and/or

 the S/L/T to address?

EPA and/or the S/L/T cannot 

address comments; EPA publishes 

a notice disapproving the §63.93 

delegation request. 

30 days

180 days

Request altered to address 

comments; EPA publishes a notice 

approving the §63.93 delegation 

request. 

EPA publishes a notice approving 

the §63.93 delegation request. 

or

If S/L/T cannot correct deficiencies 

in the complete request, EPA 

publishes a notice disapproving the 

§63.93 delegation request.

Figure 3. Approval process for rule substitution
29

How do I show

equivalency when

my requirements

differ in form from

the Federal

requirements?

Since rule substitution will allow you to require equipment and

other practices that are different from those of the corresponding

Federal regulation, you must demonstrate that emission reductions

will be at least equivalent using these alternatives. 

Some examples of information to include in your equivalency

package that could demonstrate this are:

• Diagrams of the alternative emission control technology

and its operation

• Data quantifying emission reductions achieved by the

alternative compared to the required technology or

practice.

More detailed information about equivalency demonstrations is

presented in Chapter 10.
30

6. Equivalency by Permit (§63.94)

What is equivalency

by permit?

Equivalency by permit (EBP) is an option you can use to seek

approval of S/L/T permit terms and conditions that you would

implement and enforce instead of a specified Federal section 112

rule, emission standard, or requirement. This option allows you to

get delegation without going through a rulemaking at the S/L/T

level and does not require you to establish source category

regulations. You can use this option only for sources permitted

under part 70.

You may seek approval of your alternative permit terms and

conditions through EBP for promulgated and future Federal

standards, with the exception of part 68 requirements for

accidental release prevention programs.

What are the limits

to EBP?

EBP is a practical delegation mechanism in many instances,

however its usefulness is limited by several factors. One possible

impediment is that you must accept delegation for all sources in a

source category when using this option, even if you only want to

substitute alternative requirements for one source. In addition, to

avoid potential overburden on reviewing agencies, this option may

only be used for a small number of sources, agreed upon by you

and your regional office. Also, EBP is designed for less complex

rules. For example, we anticipate that the complex part 63

standards, such as the Hazardous Organic NESHAP (HON),

would be unlikely candidates for substitution under this option.
31

Table 2. Summary of Benefits and Limits of the EBP Option

The benefits of EBP are that you... The limits to EBP are that it can only be

used for...

Do not have to set source category-wide

regulations

Source categories with few facilities

May take delegation without going through a

rulemaking at the S/L/T level

Less complex rules

Sources with part 70 permits

What is the process

for determining

equivalency by

permit?

The approval process for EBP involves two separate steps. The

first step is to request and receive up-front approval of your EBP

program. The second step is to request and receive approval of

alternative conditions that will be incorporated into Title V permits. 

You will not receive final approval of the alternative terms and

conditions until they are written into Title V permits and those

permits are issued.

What is up-front

approval?

Up-front approval for EBP is a process to ensure that you meet

the criteria of §63.91 for delegation. Also, this process provides a

legal foundation for you to replace Federal section 112

requirements with your alternatives, and informs us of the specific

sources and Federal emission standards for which you wish to

take delegation. 

As in straight delegation in §63.91, once you meet up-front

approval requirements, you only need to reference this approval in

subsequent EBP submittals and specify for which sources and

Federal emissions standards you will be taking delegation.
32

What is the process

for up-front

approval?

The steps in the up-front approval process for equivalency by

permit as specified in §63.94 are as follows:

1. You submit a request for up-front approval to your

Regional Administrator

2. We review it for completeness

3. If incomplete, we will notify you of necessary revisions and

process any revised request as a new request for approval

4. After receipt of a complete request, we will determine

whether the approval criteria have been met

5. If the approval criteria are not met, we will notify you of

necessary revisions and process any revised request as a

new request for approval, or we may publish a notice of

disapproval in the Federal Register

6. If the approval criteria are met, we will propose to

approve and seek public comment for a minimum of 21

days through a Federal Register notice

7. If there are no significant adverse comments, or significant

adverse comments are adequately addressed, we will

publish a notice of approval in the Federal Register and

incorporate a reference into §63.99 and §63.14

8. If there are significant adverse comments that are not

adequately addressed, we will publish a notice of

disapproval in the Federal Register

9. We will either approve or disapprove the request within

90 days of receipt of a complete application. 

A flow chart for this process is shown in Figure 4.
33

§63.94: Equivalency by Permit

Up-front Approval*

No

No

No

*Only one-time approval is needed unless the S/L/T adds source categories to be addressed by this option after the initial approval.

Yes

Yes

Is the request

complete?

Is the request

approvable?

S/L/T submits up-front approval request 

that identifies subject source categories 

and satisfies the criteria in §63.94(b) and 

§63.91(d). 

30 days

EPA proposes to approve in the Federal 

Register and seeks public comments

90 days

S/L/T corrects

deficiencies.

Yes

EPA and/or the S/L/T cannot 

address comments; EPA publishes 

a notice disapproving the §63.94 

up-front submittal. 

Request altered to address 

comments; EPA publishes a notice 

approving the §63.94 up-front 

submittal. 

EPA publishes a notice approving 

the §63.94 up-front submittal. 

or

Are there significant adverse 

comments for EPA and/or

 the S/L/T to address?

If S/L/T cannot correct deficiencies 

in the complete request, EPA 

publishes a notice disapproving the 

§63.94 up-front approval request.

Figure 4. Process for equivalency by permit up-front approval
34

What information do

I include in my upfront request?

You must include the following items in your request for delegation

through EBP:

1. A submittal of items for approval of straight delegation

required in §63.91(d), OR 

A statement of prior approval of §63.91(d) authorities if

this demonstration has already been made and approved

2. A list of all sources for which you want authority to

implement and enforce alternative requirements

3. A list of all existing and future Federal standards you want

authority to implement and enforce

4. A statement confirming that you have an approved Title V

operating permit program and that your program permits

the affected sources. 

Once you have an approved up-front EBP submittal, you only

need to reference that demonstration and reaffirm that you still

meet the criteria for each subsequent EBP submittal. However,

you must submit an addendum to the original, approved up-front

submittal if you decide later to add sources, source categories, or

Federal regulations to the original lists. This submittal will go

through the same approval process as the original submittal. 
35

What is the process

for approval of

alternative

requirements

through EBP?

The steps to the approval of alternative requirements for

equivalency by permit are as follows:

1. You submit a request for approval of alternative permit

terms and conditions to your Regional Administrator

2. We review it for completeness

3. If incomplete, we will notify you of necessary revisions and

process any revised request as a new request for approval

4. After receipt of a complete request, we will determine

whether the approval criteria have been met 

5. If the approval criteria are not met, we will notify you of

necessary revisions and process any revised request as a

new request for approval

6. If the approval criteria are met, we will conditionally

approve the pre-draft terms and conditions and notify you

in a letter

7. After approval of pre-draft terms and conditions, you must

write the terms and conditions into Title V permits and

submit the permits for review

8. Permits are reviewed through the 40 CFR 70.7(h) permit

review process with a minimum public comment period of

30 days

9. If there are no significant adverse comments, Title V

permits are issued and delegation is granted

10. If there are significant comments, the approval process

should be repeated beginning with re-examination of predraft permit terms and conditions

11. We will either approve, partially approve, or disapprove

the pre-draft Title V permits within 90 days of receipt of

your complete request.

A flow chart for this process is shown in Figure 5.
36

§63.94: Equivalency by Permit

Approval of Alternative Requirements*

* When using this delegation option, the alternative should either (1) address all sources in the source category or (2) accept delegation of 

the remaining sources through just one other subpart E delegation option. 

S/L/T corrects

deficiencies.

No

No

No

Yes

Yes

Is the request

complete?

Is the request

approvable?

S/L/T submits pre-draft permit terms and 

conditions that satisfy §63.94(d) criteria in 

the form of Title V permits (or Title V 

general permits) to replace a Federal 

section 112 rule . 

EPA conditionally approves the 

§63.94 pre-draft terms and conditions, 

with or without conditions, per 

§63.94 (c)(3) via letter.

S/L/T writes approved terms and 

conditions into title V permits.

Are there 

significant comments on 

the approved alternative 

requirements?

40 CFR 70.7(h) permit review process for 

public, affected S/L/T, and additional 

EPA review begins.

Title V permit issued and delegation 

granted.

If S/L/T cannot correct deficiencies in the 

complete request, EPA will disapprove the 

§63.94 pre-draft terms and conditions.

Yes

90 days

Figure 5. Process for approval of alternative requirements through equivalency by permit
37

What information do

I include in my

request for approval

of alternative

requirements?

Along with the items you submit for up-front approval through

EBP, you must include the following items to show equivalency

with the Federal requirements:

1. Draft Title V permit terms and conditions

2. Identification of which terms contain alternative

requirements

3. Any supporting documentation available that will show an

alternative requirement is equivalent to the Federal

requirement.
38

7. State Program Approval (SPA) (§63.97)

What is SPA? SPA is another option you can use to seek approval of alternative

rules, emission standards, or requirements. This option is intended

for use by States with mature air toxics programs who wish to

substitute alternative rules, emission standards, or regulations for

many of the Federal section 112 standards. 

What are the

benefits to using the

SPA option?

There are two main advantages to SPA. One is that the approval

process can be expedited when there are several rules, emission

standards, or requirements that you want approved. This option

also allows greater flexibility in equivalency determinations. The

attributes of this option that contribute to its speediness and

flexibility are that it:

• Eliminates review of generic requirements that apply to

multiple source categories (e.g., general provisions,

equipment standards, work practice standards)

• Allows you to bundle regulations and requirements and

submit them as a group

• Covers future section 112 requirements in sections other

than 112(d) and 112(h) [e.g., 112(k), and 112(f)].

How do I get State

Program Approval?

State program approval is one option under which you may seek to

gain approval of your alternative requirements. Like the other

options, it requires the submittal of specific information and has its

own approval criteria. To begin the process for State Program

Approval, you must submit three main items. These are:

1. A request for up-front approval showing that you meet the

criteria of §63.91(d) (Chapter 3 of this document) for

straight delegation. In this up-front approval request you

must also identify the source categories and/or the Federal

section 112 requirements for which you are seeking

delegation.
39

2. The terms and conditions of your alternative rules, emission

standards, or requirements must be submitted in any of the

following forms:

 • State rules, regulations, guidance*

• State permits*;

 • Issued Title V permits

• Issued Title V general permits

• Issued Federal New Source Review (NSR) permits

• Board and administrative orders

• Permits issued pursuant to permit templates.

* guidance and State permits become Federally enforceable and may not be

modified without EPA approval if used to demonstrate equivalency

3. An equivalency demonstration for each of the rules in 

 which you seek to substitute alternative requirements.

What is the process

for State Program

Approval?

The approval process for SPA involves two separate steps. The

first step is to request and obtain up-front approval of your SPA

program, and the second step is approval of your specific

alternative requirements.

What is up-front

approval?

Up-front approval for SPA is a process to ensure that you meet the

criteria of §63.91 for delegation. Also, this process provides a

legal foundation for you to replace Federal section 112

requirements with your alternatives, and informs us of the specific

sources and Federal emission standards for which you are seeking

delegation.
40

What is the process

for up-front

approval?

The steps to the up-front approval process for SPA are as follows:

1. You submit a request for up-front approval to your

Regional Administrator

2. We review it for completeness

3. If incomplete, we will notify you of necessary revisions and

process any revised request as a new request for approval

4. After receipt of a complete request, we will determine

whether the approval criteria have been met

5. If the approval criteria are not met, we will notify you of

necessary revisions and process any revised request as a

new request for approval, or we may publish a notice of

disapproval in the Federal Register

6. If the approval criteria are met, we will propose to approve

and seek public comment for a minimum of 21 days through

a Federal Register notice

7. If there are no significant adverse comments, or significant

adverse comments are adequately addressed, we will

publish a notice of approval in the Federal Register and

incorporate a reference into §63.99

8. If there are significant adverse comments that are not

adequately addressed, we will publish a notice of

disapproval in the Federal Register

9. We will either approve, partially approve, or disapprove

the up-front request within 90 days (180 days if the request

includes program element information) of receipt of a

complete application. 

A flow chart for this process is shown in Figure 6.
41

Figure 6. Process for SPA up-front program approval
42

§63.97: State Program Approval

Up-front Approval*

S/L/T corrects

deficiencies.

No

No

* Only one-time approval is needed unless the S/L/T adds source categories to be addressed by this option after the initial approval.

Yes

Yes

Is the request

complete?

Is the request

approvable?

S/L/T submits up-front approval request that 

satisfies the criteria of§63.91(d) and also 

either §63.97(b)(1) or (b)(2), with any 

optional program element information in 

§63.97(b)(3) .

EPA proposes to approve in the

Federal Register and

21 days

seeks public comments.

90 days

 (180 days if program element information is included) 

Yes

No Are there significant adverse 

comments for EPA and/or

 the S/L/T to address?

EPA and/or the S/L/T cannot 

address comments; EPA publishes 

a notice disapproving the §63.97 

up-front submittal. 

Request altered to address 

comments; EPA publishes a notice 

approving the §63.97 up-front 

submittal. 

EPA publishes a notice approving 

the §63.97 up-front submittal. 

or

If S/L/T cannot correct deficiencies 

in the complete request, EPA 

publishes a notice disapproving the 

§63.97 up-front approval request.
43

What information do

I include in my upfront request?

As provided in §63.97, you must include the following items in your

request for delegation through SPA:

1. A demonstration that you have met the criteria for straight

delegation (§63.91).

2. A list of all source categories for which you want authority

to implement and enforce alternative requirements

3. A list of all existing and future Federal standards you want

authority to implement and enforce

You may include the following items in your up-front request for

delegation through SPA. If your up-front request containing these

elements is approved, these elements would be “pre-approved”

and apply to all subsequent regulations for which you request

delegation.

1. Generic program requirements (e.g., an alternative

approach to a startup, shutdown, and malfunction plan),

with an equivalency demonstration

2. A description of the mechanism(s) that will be used to make

alternative requirements for area sources federally

enforceable, with a demonstration that you have adequate

resources and authorities to implement and enforce these

mechanisms

3. Alternative compliance and enforcement strategies (e.g.

performing compliance evaluation studies), with a

demonstration that you have adequate resources and

authorities to implement these strategies

You only need to make a statement that these program elements

have not changed if you decide later to add sources, source

categories, or Federal regulations to the original lists.
44

What is the process

for approval of

alternative

requirements

through SPA?

The steps to the approval of alternative requirements for State

program approval are as follows:

1. You submit a request for approval of the alternative terms

and conditions to your Regional Administrator

2. We review it for completeness

3. If incomplete, we will notify you of necessary revisions and

process any revised request as a new request for approval

4. After receipt of a complete request, we will determine

whether the approval criteria have been met

5. If the approval criteria are not met, we will notify you of

necessary revisions and process any revised request as a

new request for approval, or we may publish a notice of

disapproval in the Federal Register

6. If the approval criteria are met, we will propose to approve

and seek public comment for a minimum of 21 days through

a Federal Register notice

7. If there are no significant adverse comments, or significant

adverse comments are adequately addressed, we will

publish a notice of approval in the Federal Register and

incorporate a reference into §63.99 and §63.14

8. If there are significant adverse comments that are not

adequately addressed, we will publish a notice of

disapproval in the Federal Register

9. We will either approve, partially approve, or disapprove

the request within 180 days of receipt of a complete

application. 

A flow chart for this process is shown in Figure 7.
45

§63.97: State Program Approval

Alternative Requirements

S/L/T corrects

deficiencies.

Yes

Yes

No

No

Is the request

complete?

Is the request

approvable?

180 days

21 days

S/L/T submits alternative requirements 

that satisfy §63.97(d) for a 

Federal section 112 rule.

EPA proposes to approve in the

Federal Register and

seeks public comments.

Yes

No Are there significant adverse 

comments for EPA and/or

 the S/L/T to address?

EPA and/or the S/L/T cannot 

address comments; EPA publishes 

a notice disapproving the §63.97 

delegation request. 

Request altered to address 

comments; EPA publishes a notice 

approving the §63.97 delegation 

request. 

EPA publishes a notice approving 

the §63.97 delegation request. 

or

If S/L/T cannot correct deficiencies 

in the complete request, EPA 

publishes a notice disapproving the 

§63.97 delegation request.

Figure 7. Process for approval of alternative requirements through SPA
46

What information do 

I include in my

request for approval

of alternative

requirements?

Your alternate requirements must be State or locally enforceable

for approval through SPA. These alternative requirements must be

in the form of one, or a mixture of, the following enforceable

mechanisms:

• State rules, regulations, guidance*

• State permits*;

• Issued Title V permits

• Issued Title V general permits

• Issued Federal New Source Review (NSR) permits

• Board and administrative orders

• Permits issued pursuant to permit templates.

* guidance and State permits become Federally enforceable and may not be

modified without EPA approval if used to demonstrate equivalency

Section 63.97 also requires that the submittal of the alternatives

also meet the following conditions:

• Include an equivalency demonstration for each Federal

section 112 regulation with requirements you seek to

substitute 

• The alternative conditions must apply to the entire source

category or subcategory

• The alternative conditions must not require source-specific

equivalency evaluations.

What are the

approval criteria for

alternative

requirements under

SPA?

The information you submit must identify the following in order to

gain approval:

• Specify the conditions the sources must follow

• Identify how these conditions are the same as or different

from the Federal requirements in a side-by-side equivalency

demonstration; holistically the requirements must be

equivalent

• Provide detailed information that justifies why your

alternative requirements are equivalent to the Federal

requirements on a whole (i.e., how they will achieve

equivalent or greater emission reductions).
47

How can I make

changes to an

approved up-front

or alternative

requirement

submittal?

If you decide that you want to change some of the approved

conditions of your up-front approval, you must go through the

process for up-front approval again. This process must be

performed whether you are changing your alternative conditions to

new alternative conditions, or you are reverting to the Federal

section 112 requirements.
48

8. Accidental Release Prevention Programs (§63.95)

What is the purpose

of §63.95?

Section 63.95 of this rule contains provisions for taking delegation

of the Federal accidental release prevention program or seeking

approval to implement an alternative accidental release prevention

program, which is a requirement of section 112(r) of the CAA. 

These regulations (40 CFR 68) require facilities to develop and

implement a risk management program that includes analyses of

offsite consequences of accidental chemical releases to the air, a

five-year accident history, a release prevention program, and an

emergency response program. Facilities also must submit a risk

management plan (RMP) that describes its hazards and prevention

activities and certifies its compliance with the regulations.

Risk management program regulations cover stationary sources

that use more than a threshold quantity of a regulated substance in

a process. However, the specific requirements of the prevention

program depend on the complexity and level of risk posed by the

processes at the facility. There are three program levels with

different required elements, ranging from Level 1 source processes

with low risk and complexity to Level 3 processes, which are in

certain industrial sectors with substantial accident histories or are

subject to the OSHA process safety management standard. A list

of the 140 regulated substances can be found at 40 CFR 68.130, 

 Tables 1 - 4.
49

How do I get

delegation of the

Federal program?

To take delegation of the Federal accidental release prevention

program without changes, you must demonstrate through the

processes of §63.91 (Chapter 3 of this document) that you meet

the criteria for straight delegation. This demonstration only needs

to be made one time, so if you have been approved for straight

delegation of a Federal section 112 standard, you only need to

reference this demonstration and reaffirm that you still meet these

criteria. 

In addition, you must also demonstrate that you have the legal

authority to meet the following part 70.11 enforcement authority

requirements:

1. Immediately restrain (by order or suit in court) a

person who, in violation of a permit, engages in an

activity that presents an imminent and substantial

danger to the public health or welfare, or to the

environment

 2. Seek injunctive relief in court for any violation of a

program requirement without the necessity of a

prior permit revocation

 3. Assess or sue in court to recover:

A. civil penalties of at least $10,000 per day

per violation against any person for

violation of any applicable requirement,

permit condition, fee or filing requirement;

and any duty to allow or carry out

inspection, entry, or monitoring activities, or

any regulation or orders issued by the

permitting authority

B. criminal fines of at least $10,000 per day

per violation against any person who

knowingly violates any applicable

requirement, permit condition, or fee or

filing requirement; makes a false material

statement, representation, or certification in

any notice or report required by a permit;

or renders inaccurate any required

monitoring device or method
50

How do I get

approval to

implement an

alternative

accidental release

prevention

program?

If you wish to implement an accidental release prevention program

that differs from the Federal program, you must seek approval of

that alternative program through the procedures and meet the

criteria of either §63.92 or §63.93 (Chapters 4 and 5 of this

document) in addition to those of §63.91 and §63.95. You must

also have the authority required under part 70.11 to administer an

alternative section 112(r) program. 

You should use the procedures of §63.92 if your alternative

program is very similar in form to the Federal program, only

makes minor changes to the Federal program, and is clearly at

least as stringent. Use the procedures of §63.93 if your alternative

program is structurally different from the Federal program or

would otherwise require close examination to determine

equivalency.

Can I implement just

part of a program?

You may accept full or partial delegation of either the Federal or

your alternative accidental release prevention program. Whether

you plan to implement the Federal program without changes or an

alternative program, full delegation requires you to implement and

enforce the entire program to all affected sources. 

You may request delegation for only a defined universe of sources

or a defined universe of the Federally-listed chemicals (partial

delegation), but you are still required to implement and enforce the

full program for those sources and/or chemicals. Some example

situations in which partial delegation would be appropriate include

the following:

1. You wish to regulate only program Level 1 facilities

2. You wish to regulate only the chemicals associated with

certain industries

3. You wish to regulate only certain industrial sectors
51

What criteria must

my alternative

accidental release

prevention program

meet for approval?

You must meet the criteria for straight delegation of a Federal

accidental release prevention program. You must meet the

following additional criteria for approval of your alternative

program:

• Provide technical assistance to sources, and define in your

submittal:

1. Who will perform the technical assistance

2. What the technical assistance will consist of (e.g.

workshops, hotlines, training courses, etc.)

• Include an auditing strategy for RMPs in your program

that complies with the Federal requirements in §68.220,

and define in your submittal: 

1. The number or percentage of facilities you plan to

audit and inspect each year

2. The strategy that will be used for audits if local

agencies conduct the audits

3. The mechanism you will use to ensure local

authorities conduct the required audits

• Have adequate staff in number and qualification to

implement the program

• Have adequate funding for your program

• All elements of the alternative program are no less

stringent than the Federal program 

• Include a requirement in your program that any subject

source submit an RMP containing at least the same

information in the same format as the Federal requirements

• Include in your program procedures for reviewing RMPs

• Retain the general duty clause and the requirement to

submit an RMP to a central location
52

What materials must

I submit for

delegation or

approval of an

alternative

program?

You must submit all the material required under §63.91, plus that

of either §63.92 or §63.93 for alternative programs, including an

equivalency demonstration. In addition, through §63.95, you must

also submit a statement from the Attorney General that certifies

you have adequate authority to carry out the technical

requirements of this program. This Attorney’s General’s letter

must be submitted in addition to the letter required under §63.91. 

It is also recommended that you submit a letter of request from the

Governor to the EPA. 

Governor’s Letter A letter from the Governor acts as a formal tool to request EPA

approval of an accidental release prevention program and

designate the responsible agency. The letter to EPA should

include a reference to the Federal statute, a request for approval

of the program, and the Governor's signature. 

Sample Governor’s Letter

Ms. Jane Jones

Regional Administrator

Region XI, U.S. Environmental Protection Agency

Street Address

City, State, Zip Code

Dear Ms. Jones: 

In accordance with section 112(l) and section 112(r) of the Clean Air Act as amended, I am

forwarding an application for approval of the Chemical Accident Prevention Program of

(State). I believe you will find it contains the provisions necessary to implement an effective

Chemical Accident Prevention Program. 

Should you require further information, please contact (Director) of (Lead Agency). Thank

you for your assistance. 

Sincerely, 

Jane Smith
53

Governor

Attorney General’s

Certification

You must submit an Attorney General (AG)'s statement and

certification containing the following elements:

• Certification that State statutes and regulations provide

adequate authority to carry out and enforce the technical

requirements in a "no less stringent" manner 

• Certification that all statutes and regulations cited in the

letter are fully effective by the time the program is approved

• A description of any State authority over Indian lands, or

agreements with a Tribe or Tribes 

• Signature of the State AG or the attorney; or for those

agencies that have independent legal counsel, either (1) an

attorney authorized to sign for the AG; or, (2) a Deputy or

Assistant AG if authorized to do so. Authorization should

be in writing, case law, or statute. Independent counsel for

the State may submit the "no less stringent" certification in

place of the AG if the independent counsel has full authority

to represent independently the State agency in court on all

matters pertaining to the State program.

• A demonstration of the authority to adopt regulations

incorporating by reference any Federal regulation, if

applicable, citing the State statutes and regulations, listing

the comparable CFR cite and date of incorporation. 

• If the State's incorporation is intended to include any EPA

revisions that may occur in the future, then the AG should

cite State authority both to promulgate and to enforce

regulations in this manner. 

• When a State adopts the Federal regulations by reference,

the following phrase can be included in the AG's statement

to show that the State has no less stringent requirements:

"The State has adopted the Federal regulations by

reference and therefore meets the no less stringent criterion

for 40 CFR 68."

The AG's statement certifies to State authorities only. The

requirement that the State have the authority to carry out the

technical requirements and enforce those requirements does not
54

change if certain aspects of the State program are implemented by

local government agencies.

Sample Attorney General’s Certification

Ms. Jane Jones

Regional Administrator

Region XI, U.S. Environmental Protection Agency

Street Address

City, State, Zip Code

Dear Ms. Jones: 

I hereby certify pursuant to my authority as [insert official title] and in accordance with

sections 112(l) and 112(r) of the Clean Air Act, as amended, and 40 CFR 68 that in my

opinion the laws of the (State) provide adequate authority to (1) carry out the "no less

stringent" technical requirements submitted by the (Lead Agency), (2) adequately enforce

compliance with such program, and (3) regulate, at a minimum, the same chemical accident

prevention universe as the Federal program. I hereby certify, to the best of my knowledge,

that the application submitted by (Lead Agency) is legally accurate. The specific authorities

provided are contained in statutes or regulations lawfully adopted at the time this statement is

signed and which will be effective by the time the program is approved, [or are provided by

judicial decisions issued at the time this statement is signed]. 

Seal of Office 

Signature 

Where can I get

more information

about accidental

release prevention

programs?

The requirements specific to accidental release prevention

programs and RMPs can be found in the rule and preamble to 40

CFR 68. In addition, many resources, such as guidance for these

programs are available to you through the Chemical Emergency

Preparedness and Prevention Office (CEPPO) website at

http://www.epa.gov/ceppo/.
55

9. Radionuclide NESHAPs

What are

radionuclide

NESHAPs?

Section 112(d) of the Act provides for the establishment of

standards to regulate sources that emit any HAP listed in

section112(b) of the Act. On December 27, 1979, EPA listed

radionuclides as HAP substances under section 112 of the CAA

(44 FR 76738, December 27, 1979). Once listed, radionuclides

became subject to the requirement of section 112(b)(1)(B) that

EPA establish NESHAPs at a “level which (in the judgement of the

Administrator) provides an ample margin of safety to protect the

public health from such hazardous air pollutants,” or find that they

are not hazardous and delist them.

Most of the standards promulgated under this authority are found

in 40 CFR 63, and are known as “National Emission Standards

for Hazardous Air Pollutants” or NESHAPs. However, 40 CFR

61 also contains NESHAPs established for radionuclides. The

standards for specific sources of radionuclide emissions are

contained in the following subparts of 40 CFR 61: 

Subpart Source of Emissions

B Underground Uranium Mines 

H Department of Energy (DOE) Facilities 

I Certain Non-DOE Federal Facilities

K Elemental Phosphorus Plants 

Q Radon Emissions from DOE Facilities

R Radon from Phosphogypsum Stacks 

T Non-Operational Uranium Mill Tailing Piles

 (Rescinded for NRC licensees and Agreement 

 States)

W Operating Mill Tailing Piles
56

Why are the section

112 radionuclide

standards of

special concern?

The EPA Office of Radiation and Indoor Air and certain other

Federal agencies have traditionally played the primary role in

implementing requirements applying to those sources that may emit

radiation. Additionally, radiation is not a “traditional” HAP, and

thus risk measures in considering the NESHAPs policy were

different from the risk measures considered in the non-radionuclide

NESHAPs (refer to FR Vol.54 No. 240 December 15, 1989).

Very few S/L/Ts have developed the technical expertise to

independently implement radionuclide NESHAPs. S/L/Ts should

develop this expertise prior to requesting delegation of part 61

radionuclide NESHAPs by consulting the appropriate EPA

regional office. 

For similar reasons, there is also concern regarding the

approvability of S/L/T requests to implement alternative rules,

programs, or requirements to these Federal standards. As a result,

the EPA will not approve any alternatives to part 61 radionuclide

NESHAPs.

How is

implementation of

radionuclide

NESHAPs affected

by the part 70

program?

Just as for part 63 NESHAPs, in order to receive delegation of the

part 61 radionuclide NESHAPs, an S/L/T must demonstrate that it

has adequate statutory authority to issue title V permits that assure

compliance. Title V of the Act and the implementing regulations at

40 CFR 70 require that S/L/Ts develop operating permit programs

meeting various criteria. One important aspect of S/L/T program

adequacy is the ability to issue permits that assure compliance with

all requirements of the Act applicable to the permitted sources,

including the radionuclide NESHAPs. 
57

All States currently have approved part 70 programs. However,

you may permit facilities regulated by one or more of the

radionuclide NESHAPs only if you have demonstrated that your

agency has adequate personnel and expertise in radioactivity. If

this demonstration was not made in the initial title V program, a

separate demonstration regarding radionuclides must be made

prior to permitting these facilities. Further information regarding

the part 70 program and radionuclide NESHAPs can be found in

the 1994 John Seitz and Margo Oge Memorandum, “The

Radionuclide National Emissions Standards for Hazardous Air

Pollutants (NESHAPs) and the Title V Operating Permits

Program”.

Approval of a title V program does not automatically confer

approval of delegation of unchanged radionuclide standards. To

be approved delegation of these regulations, you must separately

request approval for the specific subparts you wish to implement

and enforce and you must meet the criteria of §63.91. If you

believe you have been automatically delegated part 61

radionuclides NESHAPs, you must work with your EPA region to

demonstrate that you do have adequate expertise and legal

authority to implement and enforce these requirements.

How do I get

delegation of

unchanged

radionuclide

NESHAPs?

You may request and receive straight delegation of all the

promulgated part 61 radionuclide NESHAPs. You must follow

the requirements for straight delegation (§63.91) to request straight

delegation of the part 61 radionuclide NESHAPs. However, in

requesting approval for radionuclide NESHAPs, you must

demonstrate that you have enforcement authorities that meet the

requirements of 40 CFR 70 for radionuclides. Also, §63.91

requires you to describe your capacity to carry out the program,

and you must demonstrate that the personnel who will be

implementing and enforcing these regulations have experience and

technical expertise with radiation. 
58

Section 63.91 requires that you submit 5 items to the

Administrator for straight delegation. These same requirements

apply to straight delegation of radionuclide NESHAPs. However,

you must add to that information the following items for delegation

of radionuclide NESHAPs, unless you have previously included

these items in your request for title V program approval: 

• A description of your ability to determine which facilities

are subject to the radionuclide NESHAP

• A description of your agency’s ability to enforce against

non-complying radionuclide-emitting sources

• A description of your agency’s ability to complete

surveillance/inspections of sources subject to radionuclide

NESHAPs

• A description of your agency’s ability to assess doses to

persons residing in the vicinity of facilities (i.e., use

appropriate dose models, such as CAP-88).

This demonstration only needs to be made once, so that in future

requests for straight delegation of other section 112 radionuclide

standards, you only need to reference this demonstration and

reaffirm that you still meet these criteria.

What authority will I

have under straight

delegation for

radionuclide

NESHAPs?

You will receive the same authorities you receive under straight

delegation through §63.91, with the following two differences:

1. You may not approve any alternatives to test methods

2. You must report periodically to your Regional EPA office

on the status of your program.
59

Can I receive

automatic

delegation of

radionuclide

NESHAPs?

For most part 63 and part 61 standards, you may request to

automatically receive straight delegation of new standards as they

are promulgated, without separately requesting delegation for each

new standard. However, you may not receive automatic

delegation of future part 61 radionuclide NESHAPs. You may

only receive delegation of part 61 radionuclide NESHAPs by

requesting approval of delegation for those specific NESHAPs

using the procedures of §63.91. However, you may request

delegation of all the promulgated part 61 radionuclide NESHAPs

in one request, rather than as separate requests for each subpart. 

What S/L/T

personnel can carry

out radionuclide

program activities?

The S/L/Ts have asked EPA in the past if it is necessary for all

radionuclide program activities to be carried out by air program

personnel. EPA responded by announcing through the

memorandum from John Seitz in 1994 that S/L/Ts are free to use

the combination of personnel they feel is appropriate for

performing radionuclide program duties. However, efforts

involving more than one agency should be described so that EPA

and the public can understand how the job will be done. An

intragovernmental agreement (IGA) may be an appropriate

mechanism for managing this activity. An example IGA is

displayed at the end of this chapter. 

In addition, due to the technical challenges posed by the

radionuclide NESHAPs, EPA may be able to provide support to

S/L/Ts during the initial years of part 70 program implementation

for these sources. If you need assistance, we recommend that you

work with the EPA Regional Offices to outline the timing and level

of assistance necessary to address the radionuclide NESHAPs and

related permits.

May I get approval

to implement an

alternative

radionuclide rule,

program, or

requirement?

As described earlier in this chapter, EPA will not approve any

alternative radionuclide rule, program, or requirement that differs

from the Federal regulations of part 61 subparts B, H, I, K, Q, R,

T, or W. 
60

What other

information is

available for

radionuclide

standard

delegation?

For further information regarding delegation of radionuclide

NESHAPs, refer to the following documents:

• “Guidance for State Delegation of Authority for

Radionuclide NESHAPs.” February 26, 1992. J. William

Gunter Memorandum.

• Good Practices Manual for Delegation of NSPS and

NESHAPS. U.S. EPA. February 1983.

• “The Radionuclide National Emission Standard for

Hazardous Air Pollutants (NESHAPs) and the Title V

Operating Permits Program.” September 20, 1994. John

Seitz and Margo Oge Memorandum.
61

Example Intragovernmental Agreement (IGA)

INTRAGOVERNMENTAL (IGA) AGREEMENT

Between the State Air Pollution Agency

and the

State Department of Health

PURPOSE

 This IGA is made and entered into between the State Air Pollution Control Agency (APCA) and

the State Department of Health (DH) pursuant to authorities granted within the revised code of the

State. The effect of this IGA is to recognize the DH as the lead agency for regulation of radioactive

air emissions and the APCA as the lead agency for issuing air quality permits under State law.

BACKGROUND

 The DH has the responsibility to regulate sources of radioactive air emissions per State regulation,

and APCA has the authority to issue both notice of construction and operating permits for sources of

air contaminant emissions under State regulation. All federally-applicable requirements must be

included in the operating permits, including all national emission standards for hazardous air pollutants.

RESPECTIVE ROLES AND RESPONSIBILITIES

State Air Pollution Control Agency

1. The APCA will regulate non-radioactive airborne pollutants, issue air operating permits under

State regulation, and issue notice of construction permits for non-radioactive airborne pollutants under

State regulation for all sources subject to operating permits requirements.

2. The APCA will include all applicable Federal requirements in the operating permit. The APCA

will consult with DH to determine the contents of the permit pertaining to radioactive air emissions.

3. The APCA will reimburse DH for all title V costs which are incurred by DH at sources required

to obtain a construction or operating permit.

State Department of Health
62

1. The DH will act as lead agency for issues and questions pertaining to the regulation of 

radioactive air emissions. If a facility does not need an operating permit under State regulation but is a

potential source of radioactive airborne pollutants, DH will regulate the facility under State regulations.

2. The DH shall submit a plan to APCA for approval for evaluating all Federal facilities not

regulated by the Nuclear Regulatory Commission.

3. The DH shall have the principal responsibility for evaluating airborne radionuclide emissions

during new and modified source review, providing input for the applicable construction permit.

4. The DH will identify to APCA radionuclide emissions limitation and control technologies it

deems appropriate for adoption and incorporation into air operating permits issued by APCA under

State and Federal Clean Air Act authorities. When pollutant control technology requirements may

affect the safety or effectiveness of both radioactive and non-radioactive emissions, DH and APCA

agree to work together to resolve the conflicting requirements.

5. The DH will perform at least one inspection annually for any site that is required to obtain an

operating permit. The DH will provide APCA a detailed report summarizing the inspection and any

compliance issues that are pertinent to the requirements listed in the operating or construction permit

within “X” days of completing inspection.

6. The DH shall evaluate radionuclide air emissions reports submitted by the facilities and provide

an evaluation by June 30 of each year.

7. If DH needs assistance in enforcing any requirements, DH may request assistance from 

the U.S. Environmental Protection Agency.
63

10. Review and Withdrawal of Approval (§63.96)

What is the review 

process?

Subpart E provides that the process for review and withdrawal

will be triggered if we determine that you are not adhering to the

conditions under which your delegation, rule(s), program, or

requirements were approved. In the subpart E revisions, we are

streamlining this process.

We may request information to review the adequacy,

implementation, and enforcement of an approved rule, program,

emission standard, or other requirement at any time. You must

provide this information within 45 days. Additionally, we may

request that you demonstrate that your alternative is achieving

emission reductions at least equivalent to the Federal requirement.

The specific information requested may include the following:

1. Copies of any rules or regulations that have changed your

approved rule, program, or requirements since approval

or the last EPA review

2. A demonstration of adequate State enforcement or

compliance monitoring for your approved alternative

3. A demonstration of adequate funding, staff, and other

resources to implement your alternative

4. A schedule for implementing your alternative that assures

compliance with Federal section 112 rules promulgated

since approval or the last EPA review

5. A summary of enforcement actions regarding section 112

requirement violations

What is the

withdrawal

process?

If after review there is reason to believe you’re not adequately

implementing or enforcing a delegated or an approved alternative

rule, program or requirement, we will begin the process of

withdrawal of approval. We may withdraw delegation approval

or approval of a rule, program, or requirement either partially or in

entirety. After withdrawal of any requirement, sources are

required to adhere to the otherwise applicable Federal

requirement. The withdrawal process involves the following steps:
64

1. We propose to withdraw approval and seek public

comment

2. We review public comments and your responses

3. We either withdraw approval or ask you to correct the

identified deficiencies

4. You have 90 days to correct identified deficiencies, if

given that option

5. We will either approve your changes or withdraw

approval through a Federal Register notice.

What are the criteria

for withdrawal?

We may withdraw your approval if we find that you are not

adequately meeting the following criteria:

• Have authorities or resources to assure compliance

• Are implementing and enforcing the approved

requirements

• Are achieving emission reductions equivalent to the

Federal requirements

Can I voluntarily

withdraw my

approved rule,

program, or

requirement?

You may voluntarily withdraw from delegation or withdraw your

approved rule, program, or requirement partially or entirely. To

do this you must:

1. Notify the EPA of the specific requirements you intend to

withdraw

2. Notify all affected sources 

3. Notify the public and take comments

4. Reopen and revise the title V permits of all affected

sources

The withdrawal may not take effect until 180 days after you notify

the EPA of your intent to withdraw. At that time, the otherwise

applicable Federal standard becomes the applicable requirement,

and the EPA will publish a timetable for sources to come into

compliance with these requirements.
65

Can I get delegation

again after a

withdrawal?

You may request straight delegation after your delegation has been

withdrawn or after voluntary withdrawal. Also, you may resubmit or submit a partial or entirely new rule, program, or

requirement for approval after your program has been withdrawn

or after voluntary withdrawal. The request will be processed as

normal according to the procedures of §63.91, §63.92, §63.93,

§63.94, or §63.97, as appropriate.
66

11. Equivalency Demonstrations

What is an

equivalency

demonstration?

An equivalency demonstration is the component of your request

for approval of an alternative rule, program, or requirement that

shows your alternative is at least as stringent as the corresponding

Federal section 112 standard. This chapter presents a suggested

format for this demonstration that has proven to effectively

compare alternative rules, programs, or requirements to the

otherwise applicable Federal requirements in the past. We

recommend that you follow the examples in this chapter as closely

as possible to enable the review process to be completed

expeditiously.

A complete equivalency demonstration should be comprised of

the following three items:

1. An equivalency demonstration table, which is a tabular,

line-by-line comparison of the alternative rule, program,

or requirement to the corresponding Federal section 112

standard

2. A worksheet showing any calculations and assumptions

used to determine equivalency

3. A narrative description of the analysis, including brief

explanations of equivalency, if these comments are not

included in the equivalency demonstration table.

How do I prepare the

Equivalency

Demonstration

Table?

The most important element to an equivalency demonstration is

the comparison of your rule to the Federal rule. It is highly

recommended that you use a tabular format identical to the format

shown below to help your regional office efficiently evaluate the

stringency of the alternative requirements.

The table should contain columns for the Federal rule, your

alternative, the decision made (equivalent, more stringent, less

stringent, or equivalency uncertain), and comments for you to

make to the regional office (as in Table 3). 
67

Table 3. Example Equivalency Demonstration Table

Topic Area Federal Section 112

Regulation

Alternative Rule Equivalency Comments

Citation Provision Citation Provision

Applicability

(Example)

Category of

sources

§63.XX Rule

applies to

all major

sources

Rule

1234:

§A.4

Rule

applies to

all sources

more

stringent

Rule 1234

applies to all

major and

all area

sources

Compliance

Dates

(Example)

New or

reconstructed

sources

§63.XY New

sources

must

comply by

January 1,

2005 

Rule

1234:

§A.8

New

sources

must

comply by

July 1,

2005

less stringent Rule 1234

allows more

time to

come into

compliance

Emissions

Standards

Performance

Test Methods

Monitoring

Requirements

Recordkeeping

Requirements

Reporting

Requirements

Plans

General

Provisions
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What information do

I put in the

Equivalency

Demonstration

Table?

You should take the following steps to completely fill out this

table.

• List all Federal section 112 requirements and ensure that

your standard alternative rule(s) address them holistically.

• Locate all requirements referenced in your alternative rule

or other that apply to this industry.

• Read the Federal regulation and insert a reference to the

location of each provision in the Topic Area column in

the Section 112 column.

< Include all reference citations in the Federal

section 112 standard.

• Use your alternative rule to fill out the Alternative Rule

column the same way you filled the Section 112 column,

by inserting a reference to the location of each provision

in the Topic Area column in the Alternative Rule

column.

< Include all reference citations.

• Compare your rule to the Federal rule and fill out the

Equivalency column with judgements as to whether your

rule is equivalent, More Stringent, Less Stringent, or

Uncertain. 

< Also provide a short reason for the determination

in this column or in the Comments column, if

needed.

• Provide any additional information that may help your

regional office evaluate the submittal in the Comments

column. For example, if equivalency for a provision was

uncertain, the Comments column would be the place to

explain this, to make comments on the methods used, or

to discuss calculations.
69

What issues should I

address in my

equivalency

demonstration

table?

In your equivalency demonstration table, the Topic Area column

should minimally include information that addresses the areas

shown in Table 4.

Table 4. Subjects that should be covered in an equivalency demonstration table.

Topic Area Subjects to Address 

Emission Standards

Applicability • Category of sources

• Emission points

• Equipment

• Products and materials

• Pollutants (VOCs/HAPs)

Compliance Dates • Emission limits

• Equipment installation or prohibition

• Material substitution

• Work practice standards

Emission Limits • Mass/time emission rate

• Pollutant concentration (volume or mass basis)

• Control efficiency

Work practices • Standards

• Compliance assurance measures

Test Methods • Sample collection

• Sample analysis

• Frequency of testing
Topic Area Subjects to Address 

70

Compliance

Assurance Measures

Emission Monitoring • Consistent with Federal standard for all CEMS

• Frequency of measurement for non-continuous monitoring

• Frequency of recording for non-continuous monitoring

• Provisions for:

 < performance specifications

 < installation

 < calibration

 < sampling

 < maintenance

 < operation

 < quality assurance

 < measurement frequency

 < recording.

Recordkeeping • Minimum 5 year retention

• Records of test results and material usage consistent with

Federal standards or approved alternatives

• Records to support reporting requirements for: 

 < Title V reports

 < excess emissions

 < exceedances

 < violation reports

 < breakdown and malfunction reports.

Reporting • All Title V reports

• Reports that provide information consistent with Federal

standard requirements for:

 < excess emissions

 < exceedances

 < violation reports

 < breakdown and malfunction reports.

Plans • Performance test plans

• Startup/shutdown plans

• Malfunction plans

• Operation and maintenance plans

General Provisions All GP that apply to the Federal standard not already addressed in

the other categories
71

What information do

I include in my

Narrative

Description?

After filling out the table, you should create a narrative description

to accompany the table so your regional office can see the

reasoning used to develop the table.

Your narrative should have a paragraph for each topic area. The

paragraphs should summarize any major differences between your

requirements and the Federal requirements. The narrative should

also include any helpful information that does not have a place in

the equivalency table, for instance under applicability, information

to include in your narrative would be the number of facilities that

exist, the number of facilities the alternative rule would cover, and

whether your alternative rule was in effect before the Federal

standard. 

How will equivalency

be determined?

Your demonstration will be reviewed for completeness and

fulfillment of the administrative and technical criteria. Approval of

the administrative criteria is addressed in the straight delegation

(§63.91) section of this document. The technical criteria will be

evaluated for equivalency in the following ten main areas:

1. Applicability 

2. Compliance dates

3. Emissions standards

4. Work practices

5. Performance test methods

6. Monitoring requirements

7. Recordkeeping requirements

8. Reporting requirements

9. Plans

10. General Provisions.

Each of these main categories has more specific criteria that are

used to evaluate equivalency.

Applicability

Sources

While the language of your rule compared to the Federal rule may

differ, your rule needs to cover at least the same sources and

HAPs.
72

HAPs While S/L/T rules may not specifically list HAPs covered as a

section 112 standard might, your rule still needs to cover at least

the same HAPS as the corresponding Federal regulation. This

may require you to investigate the industry your rule would

regulate and the current and future chemicals they may use to

prove equivalency with this provision.

Exemptions Your rule must exempt exactly the same or fewer sources than the

Federal regulation. If your exemption is stated in different terms,

the same or fewer of the exact facilities exempt by the Federal

standard must be exempt by your rule. If your rule exempts the

same number of facilities as the Federal rule, but the facilities are

different, your exemption is not equivalent.

Compliance Dates The compliance dates in your rule should be equal to or sooner

than the section 112 regulation dates for existing, new, and

reconstructed sources. However, through cooperative efforts

with your regional office, exceptions may be made if there are

very minimal differences.

Emission Standards

Units of Measure

Where possible, you should convert the units of your rule to the

units used in the Federal rule for the equivalency demonstration. 

However, if a direct conversion is not possible, establish a

correlation between the different units. You should provide the

equations used and any assumptions made for these conversions

or correlations.
73

Emission Limits The emission limits in your rule must be equivalent to the Federal

rule’s emission limits at the same level of production. The units for

the equivalency demonstration should be converted to the units

used in the Federal rule for numerical limitations. Control

efficiency limits must be at least as stringent as the Federal rule. In

addition, averaging times must be explicitly stated in your rule and

be equivalent to the Federal rule in guaranteeing the appropriate

emission reductions. 

In addition, you should submit any empirical or other reliable data

that can be used in evaluating alternative emission limits.

Work Practices Any alternative work practice standards you wish to substitute

must be equivalent to work practice standards of the Federal

regulation. The alternative work practice standards do not need

to be exactly the same, but they should achieve at least the same

emissions reductions as the Federal regulation. Where work

practice standards are related to compliance and enforcement

measures, your alternative work practice standard and the related

compliance and enforcement requirements must be equivalent as a

whole to the corresponding requirements in the Federal regulation.

It may be challenging to show equivalency for work practice

standards in the equivalency demonstration table. We

recommend that, as necessary, you use the comments column of

the table, provide further information in the narrative description,

and provide any data or other information that may be beneficial

for determining equivalency in your submittal.

Performance Test Methods Test methods may affect the stringency of emissions limits (e.g.,

using a method that incorporates both front and back catches for

particulates is more stringent than one only using the front half). 

You must state what performance test methods will be used and

how you will determine compliance. Any alternative test methods

must ensure that the control equipment or other control strategy

performs well enough to achieve the same emission reductions

required by the Federal section 112 standard. Intermediate

changes to test methods must be demonstrated as equivalent

through EPA Method 301.
74

Compliance Assurance

Measures (Monitoring,

Recordkeeping, and Reporting)

Compliance assurance measures are often comprised of

monitoring, recordkeeping, and reporting requirements. 

However, these requirements may also encompass field

inspections, compliance assurance training, rule effectiveness

studies, and other measures. As equivalence for compliance

assurance measures is determined holistically, this may allow for

greater substitution of requirements in this requirement category

than the others. For instance, you may be able to substitute very

detailed inspections for monitoring in some instances. The goal for

alternative measures in this category is to demonstrate compliance

and non-compliance at least as well as the Federal requirements. 

However, for substitution within a subset of these compliance

assurance measures, a few general guidelines are provided below

to help you create alternatives equivalent to those found in Federal

rules. 
75

Monitoring and Recording

Frequency

A Federally equivalent alternative monitoring plan will measure

and record any emissions exceedances as frequently and

accurately as the Federal monitoring requirements. In determining

an appropriate and equivalent monitoring frequency, you should

consider:

1. The frequency of monitoring measurement and recording

needed to detect non-compliance reliably

2. Monitoring schedule in relation to the averaging time

3. Any alternative equipment or emissions limits used

4. The margin of compliance (unit operating at X% of

emission limit)

5. The accuracy of the emission estimation method

6. Variability in emissions.

Table 5 provides suggested approach for determining appropriate

alternative monitoring/recording frequencies.

Table 5. Determining Appropriate Monitoring/Recording Frequency

Ranking Normal Variability Likelihood of

Exceedance

Suggested

Monitoring/

Recording

Frequency

high >40% > once/week hourly or daily

medium 15 - 40% once/month daily or weekly

low <15% < 2/year weekly or monthly

Reporting and Recordkeeping Similar to the monitoring and recording requirements, Federally

equivalent reporting and recordkeeping requirements will ensure

reports of emissions and operating conditions are made and sent
76

to the proper authority as frequently and accurately as the Federal

requirements, and also are kept available for viewing for an

equivalent period of time. For example, you may wish to have

reports submitted on an alternative schedule to match reporting

schedules for other requirements, or you may wish to have

sources keep files electronically rather than in hard copy. You

should provide information with your equivalency demonstration

to show justification for these types of alternatives.

Plans Most plans in Federal regulations have specific requirements that

must be met. Any alternative plans you wish to substitute should

provide holistic equivalency to the plan of the Federal regulation. 

In some cases, you may not require a plan at all, but have other

requirements that address the plan requirements of the Federal

rule. In either case, a small equivalency demonstration for the plan

is needed. You should highlight all differences between the two

plans, or the Federally required plan and your alternative

requirements, and provide any information that will help show

equivalence. This information should be presented in a table

accompanied by a worksheet showing any calculations or

assumptions made. A narrative description may also be necessary

to further describe differences or to include other information

beneficial to determining equivalency.

General Provisions Each section of the GP that applies to the section 112 standard

you are seeking delegation of must be addressed in the

equivalency demonstration. This section of the table (or a

separate table if this section is lengthy) should compare each

requirement of the GP to the provisions of the alternative rule. 

This line-by-line comparison can be shortened. You may provide

a statement that you accept delegation of the GP your rule either

does not change or address. These specific sections should be

listed. The provisions your rule addresses differently or that you

want to substitute alternate requirements for should be entered

into the table as normal.
77

12. Submittal Package Contents

What is a submittal? You must prepare and submit several items to request delegation

of Federal section 112 requirements. The items you must submit

will differ, depending on whether you are requesting approval of

straight delegation or approval of an alternative rule, program, or

requirement. You are encouraged to work with your regional

office in the preparation of your package, beginning with

discussion of any issues that arise during preparation and before

you formally submit the information. Since your submittal cannot

be processed until it is complete, you should follow the guidelines

in this chapter to ensure your submittal is complete. When the

package is complete, you must submit it to your regional office. 

 

What items do I

include in my

request for straight

delegation?

You should include the following items in your complete request

for straight delegation:

1. A cover letter explaining your goal in this submittal

2. A written finding by the State Attorney General (or

General Counsel for local or tribal agencies) that you have

the following authorities:

• Enforcement authorities that meet the requirements

of 40 CFR 70.11

• Authority to request compliance information

• Authority to inspect sources and records 

• Retained enforcement authority if you have

delegated authorities to a local agency, unless that

agency has authorities that meet the criteria of

section 70.11

OR

• Confirmation of interim or final Title V program

approval.

3. A copy of the State statute, regulation, or requirement that

grants you authority to implement and enforce the rule,

program, or requirement upon approval
78

4. A demonstration that you have adequate resources to

implement and enforce the rule, program or requirement

upon approval, including the following items:

• A description of the scope, structure, coverage,

and processes of your agency’s program

• A description of the organization and structure of

your agency 

• A description of your capacity to carry out the

State program, including the number, occupation

and general duties of employees.

5. An implementation schedule for the rule, program or

requirement after approval

6. A plan to assure compliance by all subject sources,

including a description of your compliance and

enforcement program and inspection strategy

7. A completeness checklist.

What items do I

include in my

request for approval

of an alternative rule,

program, or

requirement?

You should include the following items in your complete request

for approval of an alternative rule, program, or requirement:

1. A cover letter explaining your goal in this submittal

2. Copies of the alternative rules or requirements you are

seeking approval to implement and enforce, and copies of

any other rules your alternative rule references or that

apply to this industry

3. Copies of any other rules your alternative rule references

or other rules that apply to this industry

4. Tabular, line-by-line comparison of the alternative rule,

emission standard, or requirement to the corresponding

Federal rule (an example equivalency demonstration is

provided in Table 3)

5. Worksheet showing any calculations and assumptions

used to determine equivalency

6. Narrative description of the analysis, including brief

explanations of equivalency for provisions that may not be

clearly as stringent

7. A completeness checklist

8. Confirmation of straight delegation, or the items required

for straight delegation.
79

What information

should my cover

letter contain?

We have provided a sample cover letter requesting approval of an

alternative rule, program, or requirement. A similar letter should

be used in a request for straight delegation. You may use this

sample letter in your request, replacing the information in bold and

in parentheses, the information in bold italics, which provides

instructions, and other information as appropriate. 

Sample cover letter

 (Date)

Regional Administrator or Regional Air Division Director

United States Environmental Protection Agency

Region (Add Region Number)

(Street)

(City, State, Zip)

Dear (Regional Administrator or Air Division Director):

The (S/L/T name) submits the enclosed application for delegation to implement and enforce the

(S/L/T alternative rule, emission standard, or requirement name) in lieu of the Federal

Maximum Achievable Control Technology Standards (MACT standard) for (type of

production/operation). We submit the application pursuant to the provisions in the Code of

Federal Regulations (CFR), Title 40, part (63 or 61), subpart E, on behalf of the (State or

Districts(s)) that will implement and enforce the (S/L/T regulation name). Include the

following sentence if you have not already received straight delegation: In addition, we

request approval of (State or District(s)) legal authority and resources to implement and enforce

all section 112 programs and rules.

We request delegation to substitute the (S/L/T regulation name) for those provisions of the

MACT standard that apply to (applicable NESHAP). We are submitting this application on

behalf of the (State or District(s)) that are/will be implementing and enforcing (S/L/T rule). 

(Add citation that allows S/L/T agency to implement and enforce the S/L/T rule) allow the

(State or District(s)) to directly implement and enforce (general S/L/T rules name) and

(State of District(s)) has approved.

Use this paragraph if you have not already received straight delegation. We are

requesting a one time approval of (State or District name)’s legal authority and resources for

this and all subsequent applications to implement and enforce any section 112 program or rule. 

The information regarding the adequacy of (State or District name)’s legal authority and

resources to implement and enforce a rule or program will not vary for this and subsequent
80

approval applications. Therefore, there is no need to resubmit this information for subsequent

section 112 applications. If changes occur in the future regarding the adequacy of (State of

District name)’s legal authority and resources to implement and enforce section 112 rules, we

will modify our applications to reflect these changes.

For your review, the equivalency demonstration table and supporting narrative are enclosed. The

equivalency demonstration table generally follows the format identified in the U.S. EPA’s 40 CFR

63, subpart E Guidance Document. 

Again, we appreciate the efforts that you and your staff have taken to address and resolve issues

as they have occurred. If you have any questions, please call me at (primary contact’s

telephone number) or have you staff contact (staff contact’s name) at (staff contact’s

telephone number).

Sincerely,

(Primary Contact)

(Primary Contact Position)

What information do

I include on my

Completeness

Checklist?

The Completeness Checklist should document all the information

included in your package. The sample Completeness Checklist

shown below includes all the required information for a request for

approval of an alternative rule, program, or requirement. A similar

checklist including only the administrative criteria should be used

for a request for straight delegation. Any additional information

you include in your package should also be added to this

checklist.
81

Example Completeness Checklist for Equivalency Demonstration Packages

Administrative Criteria

 Cover letter

Completeness Checklist

Either a copy of the notice of straight delegation approval OR all of the following:

Written finding by the Attorney General

Copies of State Statutes granting authority to implement and enforce alternative

rule

Demonstration of adequate resources to implement and enforce all aspects of rule

Schedule of expeditious implementation

Plan assuring expeditious compliance

Adequate legal authority to assure compliance with rule or program

Equivalency Demonstration

Complete equivalency demonstration table

Narrative description of equivalency demonstration table

Work sheet showing any calculations

Copy of alternative rule 

Copies of cited State rules