December 10, 1993

MEMORANDUM

SUBJECT: Straight Delegations Issues Concerning Sections 111 and 112

Requirements and Title V

FROM: John S. Seitz, Director /s/

Office of Air Quality Planning and Standards

TO: Director, Air, Pesticides and Toxics

Management Division, Regions I and IV

Director, Air and Waste Management Division,

Region II

Director, Air, Radiation and Toxics Division,

Region III

Director, Air and Radiation Division,

Region V (MD-10)

Director, Air, Pesticides and Toxics Division,

Region VI

Director, Air and Toxics Division,

Regions VII, VIII, IX, and X

Several questions have been raised concerning the ways in which

authority to implement and enforce sections 111 and 112 requirements exactly

as promulgated by EPA (i.e., "straight delegations") can now be delegated to

the States, both independent of and in conjunction with State part 70

operating permits programs being developed to meet the requirements of title

V. This memo and its attachment, my April 13, 1993 memorandum ("Title V

Approval Criteria for Section 112 Requirements"), and the final section 112(l)

rules should be taken as Agency policy regarding straight delegations of these

requirements. This guidance, however, does not represent final Agency action

and cannot be relied upon to create any rights enforceable by any party.

Approval of State requirements that differ from and are no less stringent than

section 112 requirements are addressed in EPA's recently signed regulations to

implement section 112(l).

Some of the key points found in the attachment are summarized as

follows:

1. The Environmental Protection Agency's (EPA) ability to delegate

section 112 requirements to States is now governed by the new section 112(l)

rulemaking process added by the Clean Air Act Amendments (CAAA) of 1990. The

approval of a part 70 operating permits program provides an excellent

opportunity for States to receive concurrent EPA approval under section 112(l)

of a "mechanism" by which straight delegation of section 112 requirements, as

they apply to sources covered by the permitting program, can occur

expeditiously. The detailed procedures comprising this mechanism and the

responsibilities of each party should be specified in a title V implementation

agreement or other memorandum of agreement (MOA). (For the purposes of this

memorandum and attachment, the term "MOA" will refer to the specific agreement

used by a State and associated EPA Regional Office for establishing specific

procedures to implement the section 112 delegations process, regardless of

whether this agreement is in the form of a title V implementation agreement or

a more general MOA between the State and the Region.) This approval will

### 2

eliminate the need to conduct a section 112(l) rulemaking for each new

requirement that applies to these sources. In addition, this rulemaking

should presumptively accomplish section 112(l) delegation for any currently

applicable section 112 requirements which are delegatable, still undelegated,

and applicable to sources covered by the State's part 70 permit program. As

noted in paragraph number 4 below and discussed in the attachment there may be

certain exceptions to this (see question 6). It may also be possible for this

rulemaking to provide for partial delegation of certain information-receipt

responsibilities for some future section 112 requirements, as long as the

details of this delegation are agreed to in an MOA, and the State has the

ability to obtain necessary enforcement authority on a timely basis.

2. Until the time of part 70 approval or in cases where sources not

subject to the part 70 program are covered by a section 112 requirement,

Regions can, in many instances, effectively transfer much of the technical and

administrative burden of implementing and enforcing a particular standard by

establishing an MOA with the State. Alternatively, the Region can delegate

responsibility for section 112 requirements by accomplishing notice and

comment rulemaking under section 112(l)(5) in the most efficient manner.

Possible approaches include use of "direct final" actions, where appropriate,

and programs which prospectively deal with delegation of section 112

requirements.

3. The options for delegation of section 111 standards prior to the

1990 CAAA remain available to the States and EPA since the language in section

111(c) was not changed. Again, the title V program approval provides an

excellent new opportunity for delegation.

4. States must acquire any new legal authority as needed to implement

the applicable requirements of sections 111 and 112 on a timeframe sufficient

to assure timely issuance or revision of part 70 permits. For applicable

requirements existing at the time of the State's part 70 program submittal,

the State must demonstrate adequate existing legal authority to implement

these requirements presumptively by the effective date of the part 70 program.

Under certain circumstances, a State may negotiate with the Region a later

date for acquiring such responsibility for a particular standard. This

approach will be acceptable only if it is consistent with the timely phase-in

of the part 70 program, and if the State presents a detailed implementation

strategy convincing the Region that the necessary legal authority will be

secured consistent with its strategy.

5. There is no immediate need for a State to obtain delegation for a

standard which currently applies to sources not in that State. However, the

State and Regional Office should develop a strategy describing how new sources

of this type will be addressed without delaying issuance of their part 70

permits.

6. The EPA anticipates that States will accept full delegation to

implement and enforce applicable sections 111 and 112 requirements for all

major and nonmajor sources subject to them. Some States have requested that

EPA partially delegate certain sections 111 or 112 requirements on the basis

of source coverage. This would be done by withholding delegation of

requirements as they apply to nonmajor sources and retaining this

responsibility for EPA implementation. The EPA Regions can consider such

requests on a case-by-case basis but this type of delegation should be

reserved for those rare cases where a State can demonstrate that the approach

would still meet the requirements of title V (e.g., a standard clearly applies

in part to a set of smaller sources which are not potentially subject to part

70).

### 3

The responses contained in the attachment have been previously

coordinated with your staff and will be placed on the Technology Transfer

Network bulletin board. If you have any further questions on title III/title

V delegation concerns, please contact Michael Trutna at 919-541-5345, Rich

Damberg at 919-541-5592, or Julie Andresen at 919-541-5339. For other title

III issues not involving title V, please contact Karen Blanchard, who is

managing the effort to guide the implementation of section 112, at 919-541-

5647.

Attachment

cc: K. Berry

B. Jordan

A. Schwartz

L. WegmanATTACHMENT

QUESTIONS AND ANSWERS TO STRAIGHT DELEGATION ISSUES CONCERNING

SECTIONS 111 AND 112 REQUIREMENTS AND TITLE V

1. How can "straight delegation" (i.e., where the State will implement and

enforce the requirement exactly as promulgated by EPA) of section 112

requirements be accomplished before and after the approval of a part 70

program?

a. Section 112(l) Rulemaking Required for Future Delegations

Section 112(l) of the Clean Air Act (CAA) provides the mechanism for

approval of programs for the delegation of Federal standards and programs to

the States: "A program submitted by a State under this subsection may provide

for partial or complete delegation of the Administrator's authorities and

responsibilities to implement and enforce emission standards and prevention

requirements

. . . . " This language in section 112(l) was enacted in 1990 and

replaces that formerly found in section 112(d). Thus, section 112(l) now

provides the exclusive pathway for delegation of section 112 requirements.

Section 112(l)(5) prescribes the specific requirements for EPA approval,

following notice and comment rulemaking, of State air toxics programs

addressing, among other things, delegation of standards. There is no basis to

distinguish this rulemaking in its application to pre-1990 section 112

standards versus its application to the "new" standards and programs. As a

result, this rulemaking requirement applies to all future section 112

delegations, regardless of whether they are for new MACT standards,

infrastructure programs (such as those in sections 112(g) and (j)), or pre1990 NESHAPS for which a State failed to take delegation in the past.

Once a State's part 70 program has been approved, the State typically

will not have to submit a separate request for approval under section 112(l)

for straight delegation of section 112 requirements which apply only to

sources subject to the part 70 program. A separate request is presumptively

not needed for two main reasons: 1) meeting part 70 approval requirements

will suffice in meeting the section 112(l) approval requirements, and 2)

approval of a part 70 program confers the responsibility to implement and

enforce all "applicable requirements" of section 112 for sources subject to

the part 70 permit program. The extent to which a part 70 program meets the

requirements of section 112(l) is further discussed in section (d).

States will need to take additional steps to receive "straight

delegation" of section 112 requirements which apply to sources not covered by

that State's part 70 program. For many States, only major sources will

initially be subject to the part 70 program. As a result, certain sources

subject to section 112 requirements will not face part 70 permitting

obligations, including area sources deferred from permitting requirements in

the part 70 rule, area sources deferred from permitting by specific section

112 standards (e.g. dry cleaners), or sources subject to the 112(r) accidental

release program but not required to obtain a part 70 permit.

There are two primary options for obtaining delegation of requirements

as they apply to sources not subject to the part 70 permit program. Both

involve section 112(l) rulemaking. The most administratively streamlined

rulemaking option is for a State to submit a request to EPA for approval of a

program for "straight delegations" under subpart 63.91 of the 112(l) rule.

Here EPA would conduct a 112(l) rulemaking which would provide for public

notice and comment on the State's proposed program for receiving straight

delegation from the EPA for section 112 requirements as they apply to sources

outside the part 70 permit program. Under this program, States would then,without further rulemaking, receive delegation for specific section 112

requirements upon their request in accordance with the memorandum of agreement

(MOA) between the State and EPA.

The second rulemaking option would involve separate submittals from the

State requesting delegation of specific section 112 requirements as they apply

to sources not required to obtain a part 70 permit. The EPA would need to

conduct a 112(l) rulemaking for each individual State request, although

"direct final" rulemakings could be used wherever appropriate [the "direct

final" process is discussed in section (b)]. Separate section 112(l)

rulemakings may be appropriate for expedited delegation of section 112

requirements promulgated before the State receives part 70 program approval

(e.g., degreasing National Emissions Standard for Hazardous Air Pollutants

(NESHAP), the Hazardous Organic NESHAP, chrome electroplating NESHAP, and

cooling towers NESHAP).

Both of these rulemaking options require submittal of State

demonstrations that the State has adequate legal authority, resources and an

expeditious schedule for implementation. The content of these submittals is

discussed in section (c).

Another option, one which does not constitute section 112(l) rulemaking

but can provide quick transfer of many implementation responsibilities to

States, involves the expanded use of MOA's. Where a section 112(l)

rulemaking is not practical (e.g., short time before part 70 approval

expected), EPA can still enter into an MOA with a willing State to transfer

the effective workload of a particular section 112 requirement. These MOA's,

which can be similar in form to the pre-1990 delegation practices under

section 112(d), can be used to contract with the State to perform the

technical and administrative implementation of the requirement (and

enforcement as well if the State has adequate legal authority to enforce in

State court). However, an MOA cannot, standing alone, be the basis for a

formal delegation under section 112(l). Therefore, while this approach is

potentially valuable in certain situations, it would not serve to formally

delegate a section 112 requirement and so would not, for example, allow the

State to replace EPA as a point of receipt for required reports or other

information. The EPA Regions and States must weigh the relative merits

associated with this use of MOA's as compared with delegations accomplished by

section 112(l) rulemaking before selecting the most appropriate means for

implementing a particular section 112 requirement.

b. Nature of Section 112(l) Rulemakings by EPA

Procedurally, section 112(l) requires a State submittal of a request for

approval, notice in the Federal Register that EPA has received a request for

approval, a public comment period of at least 30 days, and notice in the

Federal Register that EPA has approved or disapproved the request. The

content of the EPA rulemaking to transfer the responsibility to implement and

enforce section 112 requirements as promulgated can vary widely. As discussed

in section (d), the substance of a section 112(l) notice can be extremely

short where implementation in large part depends on the adequacy of resources

and legal authority otherwise required under the part 70 permit program.

Where the State intends to implement and enforce the section 112 requirement

as promulgated by EPA, this notice and comment rulemaking, even where it

cannot be combined with the part 70 approval process, can also be

expeditiously accomplished in many cases.

One approach available to expedite future straight delegations outside

of a part 70 program approval is based on EPA's ability to approve a program



### 2for the delegation of section 112 requirements as promulgated. Such an

approval would have a prospective effect in that it would obviate the need to

repeat the notice and comment procedures of section 112(l)(5) for each

delegation. The function of this rulemaking is to take comment on a mechanism

for the transfer of section 112 responsibilities from EPA to the State, as

well as on the State's general authority and resource strategy to implement

that mechanism. The proposed section 112(l) approval notice would discuss the

delegations mechanisms proposed by the State and would include a finding that

the State has the broad statutory authority necessary to implement the

mechanism, as well as a finding that the State now has or will be able to

obtain the resources necessary to implement and enforce section 112

requirements.

The approval of a program for straight delegation of section 112

requirements must also be accompanied by an MOA between EPA and the State

which details the mechanism for transfer of responsibilities. Options for

structuring such an agreement are essentially those that existed prior to the

1990 Amendments, as described in the Good Practices Manual. The MOA must also

establish some method of continuing oversight, so that EPA can continue to

assure that the criteria of section 112(l)(5) are met. If the State fails to

meet these criteria subsequent to approval of a program for straight

delegations because it was unable to meet its commitment to provide adequate

resources, the auditing and withdrawal mechanism in the section 112(l)

regulations would allow EPA to withdraw approval for all or part of the

program.

The approval of a program for straight delegation and the actual

delegation of existing section 112 standards are not mutually exclusive. A

section 112(l) approval can accomplish both simultaneously if the State wishes

to structure the approval in that way. Accordingly, as part of any program

for straight delegations, a State that wishes to establish any delegations for

specific requirements under section 112(l) or modify any delegations approved

in the past might submit documentation of adequate authorities, resources, and

expeditious schedule for section 112(l) at the same time it submits a request

to EPA for the program authorizing straight delegations. Alternatively, a

State could obtain approval of a program for straight delegations and then

accomplish those same specific delegation actions pursuant to that program.

Where a prospective program is not chosen, the direct final rulemaking

approach may be a procedural streamlining mechanism available for

accomplishing certain straight delegations. In general, direct final

rulemaking is more likely to be appropriate where the only action being

noticed is the delegation of a single section 112 standard. In situations

where EPA does not expect any adverse comment upon publication of a notice of

approval, the notice can specify that the approval would become effective in

30 days unless adverse comments were received. If adverse comments were

received, then EPA would have to re-propose the approval and provide for a 30-

day comment period. The time and resource savings from this use of the direct

final approach would thus depend on the correctness of the Agency's judgement

regarding whether or not any adverse comments would be submitted. For a more

complete discussion of the direct final procedure, see 47 FR 27073 (June 23,

1982).

The content of the Federal Register notice accomplishing a straight

delegation under section 112(l) can also be very brief. It can be as simple

as a re-statement of EPA's findings concerning the adequacy of statements

and/or demonstrations contained in the State's submittal. The contents of

State submittals are discussed in the next section.



### 3As part of the approval for either the delegation of a particular

standard or of a program for straight delegation, the Region may consider the

appropriateness of one or more partial delegations which would allow the State

to become the point of receipt for notices and reporting required prior to the

compliance date for a particular section 112 standard or requirement. Such a

partial delegation would precede the more complete delegation that would occur

once the State gains the ability to fully implement and enforce the standard.

The partial delegation of information-receipt responsibilities may avoid

redundant reporting where the State will be the primary enforcer of the

standard, as will be the case, for instance, for sources covered by a part 70

program. In the case of approval of a program for straight delegations, the

availability of this type of partial delegation should be detailed in the MOA

that accompanies the program approval.

Regions must make case-by-case judgements as to the appropriateness of

such a partial delegation based upon the nature of the particular standard and

the likelihood that the State will be able to implement and enforce the

standard for all covered sources on a timely basis. The shifting of

information-receipt responsibilities would not be appropriate, for example,

where the State's schedule for obtaining enforcement authority may result in

sources reaching the compliance deadline before the State is able to enforce

the standard. To guard against this possibility, any such partial delegation

should be accompanied by an MOA which assures the Region that notices and

reports received by the State will be transferred to the Regional Office if

the State anticipates it will not be able to enforce the standard on a timely

basis.

c. State Submittals Required for Straight Delegations of Section 112

Requirements

The EPA will consider a State's submittal for a part 70 operating

permits program to be also an implicit request for approval of a program for

delegation of all section 112 requirements as they involve applicable

requirements for sources covered by the State's part 70 program (see next

section). In order to take delegation of section 112 requirements for other

sources, a State will need to provide EPA with a separate submittal pursuant

to one of two options described in this section.

A submittal for approval of a program for the delegation of section 112

requirements as promulgated by EPA must meet the criteria in section 63.91(b).

However, the content of a submittal for approval of such a program will

necessarily be less detailed than a submittal for delegation of a specific

requirement, since the subject of a program approval will be a more general

mechanism for future delegation actions. As noted in the previous section,

the primary purpose of a program approval is to provide for notice and comment

on a mechanism for the future transfer of section 112 standards as

promulgated. The State must therefore indicate in its submittal the type of

mechanism (e.g., automatic or case-by-case delegation) it intends to use to

accept delegation. The details of this mechanism will be established through

the MOA between the State and EPA. A demonstration of authority to implement

and enforce a particular requirement will occur at the time of delegation of

that requirement pursuant to the MOA. In the case of a request for approval

of the 112(r) accidental release program as promulgated by EPA, the State must

also submit information necessary to meet the approval criteria specified in

section 63.95.

For approval of a program for straight delegations, the State,

pursuant to section 63.91(b)(1), must submit an opinion from the State

Attorney General (for local agencies, a similar representative) demonstrating



### 4that it has the broad legislative authority necessary to implement the chosen

mechanism for delegation. Authority to implement a particular standard need

not be demonstrated as part of the opinion, although general enforcement,

inspection, and information gathering authority required by section

63.91(b)(1) must be demonstrated. Once a State has obtained approval of a

program for straight delegations, the EPA will not require additional Attorney

General opinions for each delegation accomplished pursuant to that program.

Section 63.91(b)(3) requires a demonstration of resource adequacy and

certain descriptions of State agency organization. Here, the State submittal

should include descriptions of current organization as appropriate, as well as

a description of how the State plans to obtain and maintain adequate resources

to implement delegations that occur pursuant to the approved program. As with

the requirement for adequate authority, a demonstration of adequate resources

to implement a particular requirement should accompany requests for delegation

performed pursuant to the program. The content of this more specific

demonstration should be detailed in the MOA and can be relatively brief,

consistent with prior practice under the 1983 Good Practices Manual.

The remaining criteria in section 63.91(b) concern demonstrations

associated with the delegation of particular requirements. For example,

section 63.91(b)(2) requires submittal of copies of all statutes, regulations,

and other material granting authority to implement and enforce the

requirement. Sections 63.91(b)(4) and (5) require submittal of plans for

expeditious implementation and enforcement, respectively, of the section 112

requirement. These demonstrations should be provided for in the MOA that

accompanies the program approval, so that EPA can ensure that these criteria

are met at the time each section 112 requirement is delegated and on a

continuing basis for as long as the State retains approval of the program.

However, consistent with the prospective nature of such a program for straight

delegations, these demonstrations will not require the repetition of a

rulemaking under section 112(l)(5).

State submittals requesting delegation for individual section 112

requirements (the second option discussed in the previous section) must also

meet the criteria set forth in section 63.91(b) of the section 112(l)

regulation. (Requests for approval of programs to implement section 112(r)

requirements as promulgated by EPA must also meet the approval criteria

specified in section 63.95.) Here section 63.91(b)(1) requires an opinion by

the State Attorney General stating that the State has the necessary legal

authority to implement and enforce the section 112 requirement exactly as

promulgated by EPA, as well as require compliance by applicable sources with

all emission limits, test methods, and reporting and monitoring requirements

specified in the Federal requirement. The State must also demonstrate that it

has adequate legal authority to bring enforcement actions against noncomplying

sources in State court.

Section 63.91(b)(3) requires in the case of a specific section 112

requirement that the State show it has adequate resources to implement and

enforce the applicable section 112 requirement. A statement of resource

adequacy should suffice where the State has had experience regulating similar

sources through an existing State requirement. In other cases, the State

should show that the estimated workload for implementing and enforcing the

standard does not exceed available resources (including any grants provided by

EPA for non-part 70 activities).

The EPA wishes to clarify that, in requiring section 112(l) submittals

to have enforcement authority required by section 70.11, section 63.91

implicitly recognizes the same interim flexibility as would be the case for a



### 5State seeking approval of a part 70 program. Just as a State may receive

interim approval under part 70 for up to two years if its enforcement

authority "substantially meets" the requirements of section 70.11, a State may

receive approval of a section 112(l) program under the same circumstances and

subject to the same restrictions if its enforcement authority "substantially

meets" these criteria. Were this not the case, a State could obtain approval

of a part 70 program, be required to implement and enforce all section 112

requirements at part 70 sources, and yet not be able to receive formal

delegation from EPA to implement and enforce those same requirements. This

intent of the section 112(l) rule is evidenced by statements in the preambles

to the proposed and final rule that a State submittal meeting part 70 criteria

would also meet the criteria for section 112(l) approval. See, e.g., 58 F.R.

29299 (May 19, 1993), and 58 F.R. 62271 (November 26, 1993).

d. Relationship to Part 70 Program Approval

In order to obtain approval of a part 70 operating permits program, a

State is obligated to incorporate all section 112 applicable requirements into

permits and assume the primary responsibility for enforcing these

requirements. The part 70 submittal (see April 13, 1993 memorandum entitled

"Title V Approval Criteria for Section 112 Requirements") must guarantee this

result by containing an Attorney General's statement of adequate legal

authority and/or commitments by the Governor to adopt and implement additional

requirements as needed to assure timely issuance or revision of part 70

permits which implement in part these section 112 requirements. The EPA,

therefore, considers the approval of the part 70 program to be an excellent

contemporaneous opportunity to approve a program for straight delegations

under section 112(l), to the extent that it applies to sources subject to the

permit program.

The approval notice addressing section 112(l) can be extremely brief and

can largely rely on the demonstrations required for part 70 approval. This is

because the part 70 approval will consider essentially the same approval

criteria with respect to legal authority and resource adequacy required to be

met under section 112(l)(5) and will provide an adequate opportunity for

oversight of future State actions to implement and enforce section 112

requirements at part 70 sources. Because part 70 approval is conditioned on a

State's ability to implement and enforce section 112 requirements for sources

subject to the part 70 program, EPA will treat the request for approval under

part 70 as a request under section 112(l) for approval of a program for

straight delegation of all section 112 requirements applying to part 70

sources subject to the permit program. The EPA will so indicate this position

in notices proposing to approve the part 70 program. Unless a State

specifically requests otherwise, EPA intends to establish this program for

prospective straight delegations at the same time that a part 70 program would

become effective for that State. This same rulemaking could also accomplish

straight delegations for any existing section 112 applicable requirements for

which the State had not yet taken delegation.

As discussed in section (b) above, the approval of a program for

straight delegations may also, for certain standards, allow for the partial

delegation of information-receipt responsibilities prior to the delegation of

enforcement responsibilities. Such partial delegations may be particularly

useful where there is some delay between Federal promulgation and the time

when the State is able to enforce the Federal Standard. This will sometimes

occur in the context of the part 70 program. In these cases, partial

delegation of the information-receipt responsibilities with regard to part 70

sources may facilitate the permitting of these sources, while reducing the

reporting burden. As noted in the preceding discussion, partial delegations



### 6of this sort will not be appropriate in all instances, and should not be

undertaken unless there is assurance through an MOA that any information

received by the State will be timely transferred to EPA where EPA will carry

an enforcement responsibility for any period of time. This understanding can

be included within the more comprehensive part 70 implementation agreement.

One additional concern relates to the timing sequence of these two

rulemakings. Section 112(l)(5) requires that EPA's notice and comment

rulemaking occur within 6 months of a complete State submittal, while the

rulemaking in response to a part 70 submittal by a State needs to occur within

12 months of a complete State submittal. Although approval under section

112(l) in not necessarily a precondition for part 70 approval, a State may

want to propose the two rulemakings in the Federal Register concurrently. In

such cases, the EPA Region can delay the start of the 6-month clock associated

with section 112(l) rulemaking until the time that the part 70 submittal for

the State is proposed for approval unless the State specifically requests a

different schedule for approval under section 112(l). This delayed start will

facilitate compliance with section 112(l)'s six month timeframe for approval

in cases where the presumption of an approved part 70 program is needed to

demonstrate adequate legal authority and resources. That is, unless a

proposed approval of the part 70 program occurs or an independent

demonstration of adequacy is provided, a submittal for section 112(l)

rulemaking would be incomplete. Thus, a simultaneous proposal for approval of

a submittal under part 70 and section 112(l) would serve to start the 6-month

time period for conducting section 112(l) rulemaking. This strategy also

offers sufficient flexibility to complete the part 70 rulemaking within the

year following a complete submittal from the State.

The procedural steps necessary before a State may incorporate a

federally-promulgated standard into the part 70 permit will vary as a matter

of State law. In several instances this may require rulemaking at the State

level (perhaps through incorporation of the Federal requirement by reference).

A State may also have mechanisms available to satisfy part 70 requirements

that allow incorporation of a Federal standard directly into the part 70

permit without any interim steps to promulgate the standard through State

rulemaking or to seek formal delegation of the standard from EPA. Regardless

of the necessity under State law for a formal delegation, EPA will consider

the formal delegation for all delegatable provisions to have occurred, at the

latest, when the part 70 permit is issued, so that the point of receipt for

any reporting requirements will shift from EPA to the State at that time

(unless some earlier time is established pursuant to section 112(l)

rulemaking).

The EPA may request a review of individual State rulemaking and/or other

actions taken to ensure that the needed legal authority and/or technical

capabilities are in place at the State level in time for their use in the part

70 permit process. Such evaluations should be limited to the exceptional case

where EPA has strong reasons to believe that legal and/or resource problems

exist. Thus, unless a State is legislatively barred or has made a specific

request for delegation under section 112(l), EPA will presume that the State

receiving approval for its part 70 program will implement the Federal sections

111 and 112 requirements as promulgated and will adopt any new authority at

the State level needed to assure timely inclusion as applicable in part 70

permits in order to maintain its part 70 approval.

2. How can section 111 standards be transferred before and after the

approval of a part 70 program?



### 7Section 111(c), which governs the transfer of new source performance

standards (NSPS), was not changed by the 1990 Amendments. Therefore, the

prior options for delegating such standards remain in effect.

Approval of part 70 programs requires, in part, that States must be able

to implement and enforce current section 111 standards and commit to take any

necessary steps to implement and enforce future standards promulgated by EPA

so as to assure the timely issuance or revision of part 70 permits.

Therefore, this approval process provides a new and convenient opportunity to

establish a prospective delegation agreement with the State to implement

future NSPS, as well as to implement NSPS in effect at this time.

Accordingly, EPA will assume that the part 70 submittal is an implicit request

to establish a delegation agreement for the State to implement, as promulgated

by EPA, all section 111 requirements applicable to sources subject to the part

70 program. States retain the option, however, of submitting separate

requests for delegation authority pursuant to section 111(c) when this

arrangement for automatic delegation is not appropriate. Even in this case,

EPA will explore options with individual States to establish the presumption

where possible that the point of receipt for any section 111 reporting

requirement will shift from EPA to the State and any separate delegation

requests will involve petitions to obtain the remaining implementation and

enforcement responsibilities.

3. Are there portions of any section 111 requirement which cannot be

delegated to States?

Most provisions of these requirements can be delegated to States.

However, as stated in the Good Practices for Delegation of NSPS and NESHAPS

(February, 1983), certain activities such as issuance of certain waivers,

approval of alternate test methods and monitoring, and some general authority

provisions cannot be delegated.

4. Must States accept delegation for all existing and all new sections 111

and 112 standards, or only for those for which applicable sources currently

exist in the State?

Under current part 70 rules States must have adequate legal authority to

issue or revise part 70 permits in a timely fashion to all major sources of

hazardous air pollutants. States may also opt to subject nonmajor sources

covered by a particular national standard to their part 70 permit program.

Explicit legal authority to implement a particular standard, however, may not

be necessary if the State determines that there are presently no sources

located in the State subject to a given standard, and there is no likelihood

that such a source would construct in the State in the immediate future. It

is important that States acquire the appropriate legal authority on a

timeframe commensurate with the probability that sources will locate in the

State. The State must be able to demonstrate that it can acquire any

necessary legal authority quickly enough to issue a timely part 70 permit, or

revision if a new source of this type were to locate in the State. The States

are encouraged to provide for a strategy to address such a prospect (e.g.,

through milestones in a MOA or part 70 implementation agreement).

5. If a State applies under section 112(l) to substitute a State requirement

as being no less stringent, must the State implement the otherwise applicable

section 112 requirement "as is" until it receives section 112(l) approval?



### 8Part 70 requires States to issue permits in a timely fashion which

assure compliance with all applicable requirements, including those developed

pursuant to section 112. The section 112 requirements are those promulgated

by EPA, unless the State obtains section 112(l) approval to substitute a

specific State requirement for a Federal requirement. If the State submits

its own "equivalent" requirement for approval under section 112(l), the State

must still incorporate the applicable Federal section 112 requirements into

part 70 permits until it receives EPA approval to do otherwise.

A State may be able to obtain some relief in this interim period by

structuring its transition plan such that sources affected by a different

State requirement could be acted on last during the 3-year phase-in of the

part 70 program. Another possibility for relief is for the State to issue a

permit that includes both its own State standard (designated in the permit at

issuance as not federally enforceable as required by section 70.6(b)(2)) as

well as the Federal standard it would replace upon section 112(l) approval.

This permit would contain a condition that upon EPA's approval of the State

requirement pursuant to section 112(l), the permit will be administratively

amended such that the former requirement would supersede the latter as the

federally enforceable requirement.

6. Must States have delegation of authority for all existing sections 111 and

112 requirements prior to submitting their operating permit programs? If not,

by what date must States take delegation of these standards--prior to EPA's

final program approval or prior to issuing a title V permit to a source

covered by one of these standards?

States must acquire any new legal authority as needed to implement both

sections 111 and 112 in a timeframe sufficient to assure timely issuance or

revision of part 70 permits. The procedural steps necessary before a State

may incorporate a federally-promulgated standard into the part 70 permit will

vary as a matter of State law. A State may have mechanisms available to

satisfy part 70 requirements that do not involve a delegation from EPA under

section 112(l) for section 112 requirements. For instance, State law may

allow incorporation of a Federal standard directly into the part 70 permit

without any interim steps to promulgate the standard through rulemaking or to

seek formal delegation of the standard from EPA. Regardless of the necessity

under State law, EPA will consider delegation pursuant to section 112(l) to

have occurred for all applicable requirements which can be delegated, at the

latest, when the part 70 permit is issued, so that after part 70 program

approval the point of receipt for any reporting requirements required of

sources subject to the permit program will shift from EPA to the State.

For applicable section 112 requirements in effect on November 15, 1993

(the date for submittal of part 70 programs), the States must demonstrate

adequate existing legal authority to implement these requirements

presumptively by the effective date of the part 70 program. Only under

unusual circumstances could the Region negotiate with the State a later date

to acquire such authority for a particular standard, but it still must be

consistent with the timely issuance of permits to applicable sources as they

are phased-in as part of the part 70 program. This could only be done if the

State presents a detailed implementation strategy to do so, has no legislative

impediment to the delegation, and demonstrates to the Region that the legal

authority necessary to accomplish this delegation will be secured in a timely

manner.



### 97. If a State intends to defer area sources from title V applicability, can

the State accept delegation of a section 111 or 112 requirement only for the

major sources which exist in the State and not for the nonmajor or area

sources to which the standard may also apply?

Although EPA strongly encourages States to take full delegation of all

section 112 requirements, States may submit a request to EPA for partial

delegation of such requirements. In addition to previously discussed options

for shifting the initial implementation responsibilities of certain section

112 requirements (see response to question 1), partial delegations can also be

accomplished with respect to source coverage. For example, the request for

delegation may exclude those nonmajor sources which the State within its

discretion under part 70 has allowed to be exempt from the requirement to

obtain a part 70 permit. The EPA may partially delegate such standards to a

State and withhold delegation of the area sources in that category for EPA

implementation. However, this type of partial delegation should be reserved

for those rare cases where total delegation does not meet the requirements of

title V. To qualify for this delegation, the State must demonstrate that such

a delegation would only apply to source categories subject to a section 111 or

112 standard which can easily be separated into exempt and subject sources

(i.e., not involve difficult section 111 or 112 applicability decisions), and

only to sources which are not otherwise required to get a part 70 permit

(e.g., are not major sources due to emissions of some criteria pollutant).

8. Will EPA have to issue operating permits to sources if States do not take

timely delegation of a particular MACT standard? If EPA has to issue the

permit, will it only cover the MACT requirement(s), or will it cover all CAA

requirements applicable to the source?

The EPA will object to any proposed part 70 permit which does not

contain sufficient terms and conditions to assure compliance with all

applicable requirements of the CAA, including those of section 112. If the

State does not adequately respond to an EPA objection, (e.g., for failure to

include a recently-established section 112 standard), the Agency must veto the

permit and issue a Federal permit addressing all applicable CAA requirements

(not just those pertaining to the deficiency identified by EPA). A failure to

adopt new legal authority as needed to impose a new section 112 standard would

likely lead to the issuance of a comprehensive EPA permit for sources subject

to the new section 112 standard. A significant number of such situations may

lead EPA to conclude that the State has failed to administer its approved part

70 program and that EPA should implement a Federal title V program in that

State.

9. Will the delegations of section 112 standards be tracked on a national

data base? Can the delegations themselves be tracked and implemented through

the AFS Permitting Enhancements Title V data management system?

There are currently no plans to track the national progress in

accomplishing the delegations of section 112 standards. Individual Regions may

choose to use a MOA or a part 70 implementation agreement to establish

milestones for State enhancement of their legal authority as needed to

implement section 112 standards and to submit (at the option of the Region)

evidence of this enhancement (e.g., rules or policy statements).

10. What type of sections 111 and 112 commitments can qualify a State

submittal for part 70 program approval?



### 10In order to obtain full approval from EPA, the part 70 submittal must

contain authority and/or commitments adequate to ensure that the part 70

permit will assure compliance with all applicable sections 111 and 112

requirements. Where general statutory authority to issue or revise permits

implementing sections 111 and 112 is present, but the Attorney General is

unable to certify explicit legal authority to carry out certain specific

requirements at the time of program submittal, the Governor may instead submit

commitments to adopt and implement additional regulations as needed to issue

part 70 permits. The EPA will rely on these commitments in granting part 70

program approvals, provided that (1) the underlying legislative authority

would not prevent a State from meeting the commitments, and (2) the State can

demonstrate the commitments will be satisfied by the time the State has to

issue or revise permits to sources subject to the sections 111 and/or 112

requirements for which the State now lacks adequate authority to implement.

The nature of such commitments can vary widely depending on what is

needed by the State to implement and enforce a particular standard. For

example, one State might be able to carry out a particular section 111 or 112

requirement under its existing program while another State might require

rulemaking to allow it to enforce this Federal requirement. The commitments

contained in the letter of submittal from the Governor should outline the

timetable by which any required additions to existing legal authority would be

acquired and any major interim milestones needed to ensure that this deadline

will be met.



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