SERA
United States
Environmental Protectron
Agency
Enforcement And
Compliance Assurance
(2223A>
EPA 305-B-99-004
February 1999
How To Review And Issue
Clean Air Act
Applicability Determinations
And Alternative Monitoring
New Source Performance Standards
National Emission Standards for
Hazardous Air Pollutants
T?
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How to Review and Issue
Clean Air Act
Applicability Determinations and Alternative Monitoring
for
New Source Performance Standards
National Emission Standards for Hazardous Air Pollutants
February 1999
Manufacturing, Energy, and Transportation Division
Office of Compliance
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
40 1 M Street, SW
Washington, DC 20460
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DISCLAIMER
The statements in this document are intended solely as guidance. This document is not intended,
nor can it be relied on, to create any rights enforceable by any party in litigation with the United
States. The U.S. Environmental Protection Agency (EPA) and State officials may decide to
follow the guidance provided in this document, or to act at variance with the guidance, based on
an analysis of specific-site circumstances. This guidance may be Revised without public notice to
reflect changes in EPA's policy.
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Executive Summary
A critical aspect of implementing the New Source Performance Standards (NSPS) and National
Emission Standards for Hazardous Air Pollutants (NESHAP) under the Clean Air Act (CAA) is
responding to requests for applicability determinations and monitoring alternatives. The
Environmental Protection Agency (EPA, or the Agency) currently issues over 100 memoranda
per year pertaining to NSPS and NESHAP applicability and monitoring requirements, and
handles countless telephone and electronic mail requests. Given this volume of activity, the
reorganizations across the Agency, and the large number of new NESHAP regulations, the
challenge to ensure nationally consistent responses is greater than ever.
This guidance on How to Review and Issue CAA Applicability Determinations and Alternative
Monitoring clarifies the necessary roles and procedures for issuing nationally consistent
responses. It is directed to Agency staff and management involved in responding to NSPS and
NESHAP applicability and monitoring questions. This guidance will also be a useful tool for
personnel in State and Local Agencies involved in implementing the NSPS and NESHAP.
Today's guidance is the culmination of three Agency initiatives on implementation of the NSPS
and NESHAP programs. This guidance addresses recommendations from a review of the
Applicability Determination Index (ADI) performed by the Manufacturing, Energy, and
Transportation Division (METD) issued on July 23,1998. Today's guidance also responds to a
need identified at the 1997 Air Toxics Implementation Working Meeting for guidance on how to
develop applicability determinations. Third, today's guidance reflects a July 10, 1998 policy
from the Office of Air Quality Planning and Standards (OAQPS) on which discretionary
authorities in the Part 63 NESHAP General Provisions may be delegated to State and Local
Agencies.
For purposes of this guidance, applicability determinations under the NSPS (40 CFR Part 60),
NESHAP (40 CFR Parts 61 and 63), and CAA section 11 l(d) (40 CFR Part 60, subparts B & C)
programs are source-specific, written responses to questions on whether certain equipment or
activities are subject to the regulations. Applicability determinations are issued by persons
holding delegated authority within State or Local Agencies, EPA Regional Offices or EPA
Headquarters. State and Local Agencies are the first stop for questions from the public on
applicability. EPA Regional Offices have the primary role within EPA for providing
in
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Executive Summary, continued
applicability determinations when an EPA response is necessary. There are also four divisions in
Headquarters' delegated the authority to issue NSPS and NESHAP applicability determinations.
Requests for alternative monitoring also must be approved or disapproved in writing by persons
delegated such authority. Within EPA, only the Regional Offices are delegated the authority to
issue alternative monitoring for the NSPS and NESHAP. However, Headquarters provides
assistance to Regional Offices in their development of responses as necessary. The role of State
and Local Agencies in the review and approval of alternative monitoring has generally been
limited to reviewing minor changes in monitoring methodology; however, the degree of
delegation varies. Pursuant to the July 10, 1998 policy statement by OAQPS and today's
guidance, delegations of authority to issue intermediate alternatives to monitoring may also be
delegated to State and Local Agencies under certain conditions.
Today's guidance fulfills the following needs for implementation of the NSPS and NESHAP
program identified by METD's review of the ADI, and the 1997 Air Toxics Working Meeting:
• basic terminology is clarified, such as what constitute applicability determinations,
monitoring alternatives, and regulatory interpretations;
• delegated authorities and lead offices for issuing applicability determinations and
alternative monitoring responses are identified;
» procedures for handling informal requests, such as telephone inquiries and electronic
mail, are presented;
« consultation procedures for use in the development of applicability determinations and
alternative monitoring responses are established;
« necessary steps in issuing applicability determinations are identified; and,
« drafting pointers to improve the clarity of applicability determinations and alternative
monitoring responses are provided.
'The Manufacturing, Energy and Transportation Division (METD), the Chemical,
Commercial Services and Municipal Division (CCSMD), and the Agriculture and Ecosystems
Division (AgED) in the Office of Compliance (OC), and the Air Enforcement Division (AED) in.
the Office of Regulatory Enforcement (ORE). Both OC and ORE are in the Office of
Enforcement and Compliance Assurance (OECA). (See Attachment 5, "Organizational Charts.")
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Executive Summary, continued
Further, today's guidance answers basic questions on how the applicability and monitoring
review process will interface with operating permits; discusses Small Business Regulatory
Enforcement Fairness Act (SBREFA) requirements as they pertain to informal Agency responses
on applicability and monitoring; and provides guidance on responding to applicability inquiries
posed after the action in question has already occurred (post hoc situations).
Today's guidance also sets forth new policy in several areas. This guidance:
• allows consistency between the new Part 63 and existing Part 60 and 61 programs in the
delegation of authority to State and Local Agencies for applicability determinations and
alternative monitoring;
• incorporates new time frames for OECA and OAQPS for reviewing draft applicability
determinations and monitoring responses;
• provides consultation procedures for OAQPS in the drafting of regulatory interpretations
on NSPS and NESHAP applicability;
• establishes OC sector leads as the focal points and leads within OECA for questions on
NSPS and NESHAP applicability;
t sets forth OC's new policy of publishing notification of availability of applicability
determinations in the Federal Register.
Implementation of this guidance should improve accuracy and clarity of applicability
determinations and alternative monitoring responses. Adherence to the policies and principles
presented will ensure national consistency in the implementation of the NSPS and NESHAP
programs.
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Contents
Section 1 Background 1
Section 2 Description ofTerms 3
Overview; Applicability Determinations; Regulatory Interpretations;
Alternative Monitoring; Alternative Testing; Informal Discussions;
Other Revisions, Waivers and Extensions
Section 3 Interface with Title V Operating Permits 11
Overview
Applicability Determinations and Title V Operating Permits
Changes to Monitoring and Title V Operating Permits
Section 4 Who has Authority, Overview ' 13
4.1 Delegated Authorities within EPA 13
Applicability Determinations; Regulatory Interpretations;
Alternative Monitoring; Alternative Testing
Table: Delegations of Authority within EPA 18
4.2 Delegations to State and Local Agencies 19
Delegable Authorities
Nature of State Determinations
Delegation Process
Section 5 Who has the Lead, Overview 23
5.1 Lead Offices for Applicability Determinations 23
Whose Lead-State or EPA Region
Whose Lead-EPA Regions or Headquarters
Lead within Headquarters
Requests-Where to Send
Diagram: Lead Offices for Applicability Determinations 28
Responses-Type and Where to Send
Inset: Responding to Post Hoc Requests 30
5.2 Lead Offices for Regulatory Interpretations 31
5.3 Lead Offices for Alternative Monitoring 32
Whose Lead-State or EPA Region
Whose Lead-EPA Regions or Headquarters
Diagram: Sample Lead Offices for Changes in Monitoring 33
Where to Send Requests and Issuance of Responses
VI
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Contents, continued
Section 6 EPA Consultations 35
6.1 Consultation Procedures for OECA 36
6.2 Consultation Procedures forOAQPS 38
6.3 Consultation Procedures for Regional Offices 39
Inset: Correspondence During Deliberations 41
Section 7 Informal Inquiries,: 43
Overview
Responding to Phone Inquiries
Responding to E-mail
SBREFA Requirements
Section 8 Steps in Developing Applicability Determinations 47
Overview; The Eight Steps
Section 9 Drafting Points for Applicability Determinations and
Alternative Monitoring Responses 51
Overview; Drafting Pointers
Attachments
1 Part 63 Delegable Authority Memorandum. "Delegation of 40 CFR Part 63
General Provisions Authorities to State and Local Air Pollution Control Agencies,"
from John S. Seitz, Director Office of Air Quality Planning and Standards,
July 10, 1998
2 Parts 60 and 61 Delegable Authorities Memoranda for NSPS and NESHAP
Applicability Determinations and Alternative Monitoring
3 Selected EPA Delegations of Authority
4 Applicability Determination Index Update Procedures
5 OECA and OAQPS Organizational Charts
6 NSPS and NESHAP General Contacts
vn
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Section 1
Background
The Environmental Protection Agency (EPA, or the Agency) currently issues over 100 letters or
memoranda per year on Clean Air Act (CAA) applicability or monitoring issues under the New
Source Performance Standards (NSPS) and the National Emission Standards for Hazardous Air
Pollutants (NESHAP) programs. As a means of promoting national consistency, EPA
Headquarters has maintained a compilation of EPA applicability determinations since the first
determinations were issued in the early 1970's . Revisions to monitoring and recordkeeping
requirements (alternative monitoring) are also part of this compilation. These memoranda are
currently available through the Applicability Determination Index (ADI). The ADI is an
electronic index on the Internet with over one thousand EPA memoranda pertaining to the
applicability, monitoring, recordkeeping and reporting requirements of the NSPS (40 CFR
Part 60) and NESHAP (40 CFR Parts 6 1 and 63). The memoranda may be searched by date,
office, subpart, citation or by string word searches.
As part of its charge to oversee the ADI, the Manufacturing, Energy, and Transportation Division
(METD) in the Office of Compliance (OC) reviewed the NSPS memoranda posted on the ADI
since the 1994 reorganization of the larger Office of Enforcement and Compliance Assurance
(OECA). As a result of the review, METD issued a report on July 23, 19982 which identified
key areas in which the clarity and consistency of applicability determinations and monitoring
alternatives could be improved. The report recommended reinforcement of internal consultation
procedures and adherence to drafting principles.
The April 1997 Air Toxics Implementation Working Meeting at Brown Summit also identified a
need to enhance the clarity and effectiveness of applicability determinations for the Part 63
NESHAP program. That working group recommended the development of guidance clarifying the
roles and steps in making applicability determinations, addressing basic issues such as what
constitutes an applicability determination, and which office has the lead in issuing determinations.
'Report entitled, "Review of the Applicability Determination Index; NSPS Memoranda,"
issued July 23, 1998. by John B. Rasnic, Director, METD, OC.
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Section 1: Background, continued
On July 10, 1998, the Office of Air Quality Planning and Standards (OAQPS) issued guidance
(Attachment 1) on the extent to which applicability determination and alternative monitoring
review and approval authority for the Part 63 NESHAP program may be delegated to State and
Local Agencies. That guidance addresses what Part 63 General Provisions discretionary
authorities may be delegated to State and Local Agencies through straight delegation of the
General Provisions. The Part 63 guidance creates three categories of changes to monitoring and
testing: minor, intermediate, and major. The guidance indicates that the authority to issue minor
and intermediate changes in monitoring, and applicability determinations may be delegated to
State and Local Agencies, given proper notification, oversight, and consideration of State and
Local capabilities.
The Part 63 delegable authorities guidance potentially allows State and Local Agencies to be
delegated greater authority for applicability determinations and monitoring revisions for the
Part 63 program than was allowed under previous guidance for the Parts 60 and 61 programs.
EPA Regional Offices will ultimately determine the extent to which authority to issue
applicability determinations and alternative monitoring should be delegated to any one particular
State or Local Agency.
Today's guidance on How to Review and Issue CAA Applicability Determinations and
Alternative Monitoring for NSPS and NESHAP is designed to address the findings of METD's
review of the ADI, and the needs identified by the Air Toxics Implementation Working Meeting.
It clarifies the roles, consultation, issuance, and drafting procedures for the development of
applicability determinations and alternative monitoring responses. It is also reflective of the
Part 63 delegable authorities guidance by providing that EPA may delegate applicability
determination and alternative monitoring authority to State and Local Agencies for the Parts 60
and 61 programs to the same extent as is allowed under Part 63. Ultimately, today's guidance
provides procedures by which the Agency can ensure nationally consistent responses to
applicability and monitoring inquiries in the NSPS and NESHAP programs.
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Section 2
Description of Terms
What is an Applicability Determination or
Alternative Monitoring Response
Overview
This guidance pertains to the drafting of CAA applicability determinations and alternative
monitoring responses under the NSPS (40 CFR Part 60), and the NESHAP (40 CFR Parts 61
and 63) programs. The procedures as they relate to CAA section 11 l(d) plans, under 40 CFR
Part 60 Subparts B and C, which implement the Emission Guidelines (e.g.. for Municipal Waste
Combusters (MWCs) and Municipal Landfills) are also addressed.
This section defines the terms "applicability determination" and "alternative monitoring." These
terms are distinguished from similar authorities, also defined in this section, such as regulatory
interpretations, alternative testing, and responses to informal inquiries.
Applicability Determinations
The term "applicability determination" as used in this guidance refers to decisions issued
in writing by a recipient of the Administrator's delegated authority as to whether certain
activities by a specific source would trigger applicability of the regulation in question.
Applicability determinations involve evaluation of whether actions taken by the source constitute
construction, reconstruction or modification, and often involve a determination of whether the
source meets the definition of the regulated entity, i.e.. the affected facility for NSPS, the affected
source for Part 63, or the designated facility for section 11 l(d) plans.
The term "applicability determination" is being used broadly in this guidance as shorthand for a
variety of written documents pertaining to source-specific applicability-related issues, for the
purpose of establishing roles and responsibilities within the Agency. Although this guidance
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Section 2: Description of Terms ~ Applicability Determinations, continued
restricts use of the term "applicability determination" to documents issued by a recipient of the
Administrator's delegated authority, many of these documents (such as internal EPA
memoranda) would not be considered applicability determinations in the legal sense. Precisely
speaking, the term "applicability determination" is limited to the Agency's formal, written
decisions, issued to a source in response to a question from that source, regarding source-specific
applicability issues. The broader use of the term in this guidance, which includes internal EPA
memoranda and responses to inquiries generated within a State or Local Agency, is not intended
to create any legal rights.
In some instances, regulations contain procedures that source owners or operators may use to
receive a response regarding applicability issues. The General Provisions of the NSPS and
Part 61 NESHAP provide at 40 CFR Sections 60.5 and 61.06 that a source owner or operator can
request a determination of whether certain actions constitute construction (including
reconstruction), modification, or the commencement thereof.
Although the Part 63 NESHAP and section 11 l(d) regulations contain no specific regulatory
provision that sources may request applicability determinations3, EPA does respond to written
inquiries regarding applicability for the Part 63 and section 11 l(d) programs. EPA has delegated
the authority to respond to such inquiries to the same persons within the Agency who are
delegated the authority to issue NSPS and Part 61 NESHAP determinations. Therefore, today's
guidance applies the term applicability determination to the Part 63 and section 11 l(d) programs
to mean a written determination provided by a recipient of the Administrator's delegated
authority as to whether a particular activity, facility, or source is subject to the regulations.
Applicability determinations are issued in the form of a letter or memorandum from EPA, or the
State or Local Agency to which the program has been delegated, and must be signed bv a nerson
to whom the authority has been delegated.
Applicability determinations may be issued either before or after the action in question has
occurred. However, the means for responding to inquiries in the post hoc setting requires special
consideration given the potential for an enforcement action, and is discussed separately in
Section 5.1, "Lead Offices for Applicability Determinations."
3The Part 63 General Provisions do use the term applicability determination in sections
63.1 (b)(3) & 63.10(b)(3). However, these sections refer to decisions made by the Source that
they are not subject to a standard under Part 63. This source-generated decision is distinct from
the applicability determinations discussed in this document, which are issued by the EPA or a
delegated State or Local Agency.
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Section 2: Description of Terms, continued
EPA determinations are posted through quarterly updates to the Applicability Determination
Index (ADI), available on the Internet at:
http://ttnwww.rtpnc.epa.gov/cfdocs/adiwww/adiwww.html-ssi
The ADI is also accessible through METD's home page, http://www.epa.gov/oeca/metd. A
description of the ADI update procedures is provided in Attachment 4. In the future, EPA plans
to periodically post summaries of the Agency's applicability determinations in the Federal
Register.
State and Local Agency determinations are not posted on the ADI, since their programs to
implement Parts 60, 61 & 63 may be more expansive or more stringent than the federal
regulations. The EPA's Unified Air Toxics Website is being expanded to contain links to State
or Local Agency bulletin boards for Part 63 determinations. The address for the Unified Air
Toxics Website is : http://www.epa.gov/ttn/uatw
Regulatory Interpretations
In contrast to applicability determinations which are source-specific, EPA receives numerous
inquiries about the broad range of regulatory requirements as they pertain to the whole source
category. These questions may pertain, for example, to the type of testing, monitoring,
recordkeeping or reporting that applies to the source category, such as how often sources are
required to sample fuel, or what the deadline is for performance testing. EPA's responses to
these inquiries can broadly be characterized as regulatory interpretations.
Regulatory interpretations are issued in the form of a letter, memorandum, or guidance. Such
interpretations are typically issued by either the division with the lead for implementing the
regulation (within OECA or Regional Offices), or the lead Headquarters division responsible for
drafting the regulation (within OAQPS). Legal counsel has also issued these interpretations.
Regulatory interpretations for the NSPS and NESHAP program are posted on the ADI.
It may not always be easy to distinguish a request for a regulatory interpretation pertaining to
applicability criteria, from a request for an applicability determination. In such cases it may be
useful to request clarification from the source if they are in fact requesting a source-specific
applicability determination under sections 60.5 or 61.06, to ensure the response is issued from an
office with the proper authority.
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Section 2: Description of Terms, continued
Alternative Monitoring
The NSPS and NESHAP programs allow sources to seek permission to use monitoring or
recordkeeping which is different from the promulgated requirements. These provisions are set
forth at 40 CFR 60.13(i), 61.14(g), 63.8(b)(l), 63.8(f) & 63.10(f). Although the language in each
of these paragraphs varies somewhat, they all allow alternatives to the monitoring requirements
ranging from minor changes in monitoring and recordkeeping, to major changes, including
entirely different monitoring systems. This guidance will use the term "alternative
monitoring" to refer to any change in the promulgated monitoring and recordkeeping
requirements, regardless of the magnitude of the change. Bear in mind that changes in
reporting requirements may be necessary as a result of alternative monitoring.
Historically in the NSPS and Part 61 NESHAP program, EPA reviews major changes in
monitoring, including those changes which have broad application, whereas States and
sometimes Local Agencies review source-specific minor changes. However, delegations of
authority to State and Local Agencies vary.
The Part 63 delegable authorities guidance issued by OAQPS on July 10, 1998 (Attachment 1)
defines and categorizes proposed changes in monitoring as minor, intermediate, and major.
These terms are summarized as follows, but please refer to Attachment 1 for a more complete
description of the terms.
• Minor changes to monitoring are those that have no potential to decrease the stringency
of the compliance monitoring measures, have no national significance, and are SOUTCe-
specific.
• Intermediate changes to monitoring involve a proven technology, and apply on a site-
specific basis; however, the proposal may have the potential to be less stringent than the
existing monitoring. As such, proposed intermediate changes in monitoring must
undergo a rigorous review to ensure that any approved changes do not decrease the
stringency of the compliance or enforcement measures.
• Major changes to monitoring use unproven technology or procedures, or constitute an
entirely new method; they may be site-specific or apply broadly. Proposed major
changes also have the potential to decrease the stringency of the source's monitoring.
These proposals must also undergo rigorous review to ensure that they are of the same or
higher stringency as the method or procedure specified in the applicable regulation.
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Section 2: Description of Terms, continued
Pursuant to the Part 63 delegable authorities guidance, both minor and intermediate changes in
monitoring may be delegated to State and Local Agencies with appropriate oversight. Today's
guidance confirms that Regions may delegate the review and approval of source-specific, minor
and intermediate monitoring alternatives for the NSPS and Part 61 NESHAP, consistent with the
Part 63 guidance (see Section 4.2, "Delegations to State and Local Agencies"). This constitutes
an expansion of authority delegable to States, since intermediate changes in monitoring were not
previously delegable to States.
Requests for NSPS and NESHAP alternative monitoring are usually source-specific in nature;
however, EPA has given broad approval to some monitoring alternatives for use by any source
which meets defined criteria. Alternative monitoring is typically approved or disapproved in a
letter or memorandum, signed by a person to whom the authority has been delegated.
EPA has posted numerous responses to requests for alternative monitoring on the ADI, and some
alternative methods with broad application have been published in the Federal Register. Through
today's guidance, EPA is confirming that Regional Offices should continue to post Agency-
issued alternative monitoring approvals and disapprovals on the ADI. Further, OAQPS is
requesting that all State-issued intermediate changes in monitoring be sent to the Emission
Monitoring and Analysis Division (see Section 5.3 on "Where to Send Requests and Issuance of
Responses").
Revisions to State-adopted and EPA-approved section 11 l(d) plans for designated facilities are
permissible pursuant to 40 CFR 60.29. Such revisions require EPA approval, as well as notice
and opportunity for public comment.
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Section 2: Description of Terms, continued
Alternative Testing
NSPS and NESHAP provisions on alternative testing are found at 40 CFR 60.8(b), 61.13(h),
63.7(e)(2), & 63.7(f). Testing alternatives may be source-specific, or may apply broadly, but
must be signed by a person to whom authority has been delegated. Approvals that have broad
application have been published in the Federal Register. Testing alternatives are currently
published on the Agency's Technology Transfer Network (TTN) Emission Measurement Center
(EMC) web site, under "Methods." The Internet address is: http://www.epa.gov/ttn/emc
As with alternative monitoring, the delegations of authority to review and approve alternative test
methods depend on the nature of the proposed change, including whether that change is minor or
major. The Part 63 delegable authorities guidance (Attachment 1) defines changes in testing
based on the new three levels of changes (minor, intermediate, and major). Major revisions to
testing and revisions of a broad nature must be reviewed by EPA. State or Local Agency
authority to review testing is limited to source-specific minor and intermediate changes.
Different procedures for review and approval apply for testing changes than apply for monitoring
changes, For example, intermediate changes to testing must meet EPA Method 301 criteria;
whereas, Method 301 is not used to evaluate monitoring changes. Further, major changes to test
methods may only be approved by OAQPS; whereas, major changes to monitoring are approved
by Regional Offices. The reader is referred to Attachment 1 for a more complete description of
the three levels of testing changes.
Since there are different procedures for reviewing alternative testing and alternative monitoring,
it is important to understand whether a proposal involves the test method, or the
monitoring method. Test methods are designated in the standard as the means for determining
compliance with the emission standard during a performance test. The regulation may require
periodic performance tests, or where Continuous Emission Monitoring Systems (CEMS) are
employed, may specify that CEMS are the test method (i.e., a designated means of determining
continuing compliance with the emission standard). Proposed changes to these requirements are
reviewed under alternative testing authority.
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Section 2: Description of Terms, continued
Some Part 63 NESHAP regulations specify that parameter monitoring, in addition to a specific
reference test method, is used to determine compliance with the standard. Although these
parameter monitoring requirements are means for determining continuing compliance with the
standard, revisions to the parameter monitoring requirements would be reviewed under
alternative monitoring procedures. The alternative testing procedures would be used to review
revisions to the performance test method.
Revisions to State section 111 (d) plans would require EPA approval and notice and opportunity
for public hearing.
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Section 2: Description of Terms, continued
Informal Discussions
States and EPA frequently receive questions over the telephone, and increasingly via electronic
mail (e-mail), related to applicability, monitoring and recordkeeping requirements. This type of
correspondence is considered an informal discussion, and does not constitute a request for a
determination. Any answer provided in that forum is not considered an applicability
determination or alternative monitoring response. Applicability determinations and alternative
monitoring decisions must follow the formal process discussed in this document. Because
applicability determinations and alternative monitoring decisions are source-specific and hinge
on the details of the specific situation, it is necessary that requests be in writing and not based on
hypothetical scenarios. It is equally important that the agency's determination or approval be in
writing, in response to a specific fact-based written request, and be signed by a person to whom
authority has been delegated.
Other Revisions, Waivers, and Extensions
The NSPS and NESHAP programs provide flexibility from the promulgated requirements in a
number of ways, as specified in individual subparts, the General Provisions, and the statute itself.
Examples include compliance extensions under section 112(i) of the CAA, innovative
technology waivers for NSPS under section 111 (j) of the CAA, and equivalency determinations
for NESHAP under section 112(h) of the CAA. The level of EPA review for these provisions is
reflected in EPA's delegations of authority, and the method for application and approval varies as
specified in guidance or regulations. Discussion of the many means of adapting the regulations
to source-specific conditions is beyond the scope of this guidance.
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Section 3
Interface with Title V Operating Permits
Overview
The CAA title V operating permit program provides for the implementation of all CAA
requirements that have been determined to apply to the source. This section briefly addresses the
interface between the operating permit program and the NSPS/NESHAP applicability
determinations and monitoring review process.
Applicability Determinations and Title V Operating Permits
In preparing a title V permit application, a source must identify all of the applicable requirements
that apply to the source. As such, owners or operators may find it useful to request a NSPS or
NESHAP applicability determination. As described in Section 2, NSPS and NESHAP
applicability determinations are source-specific, written determinations, signed by persons to
whom authority has been delegated, and must specifically address whether a particular activity or
process is subject to the regulation in question. The process of seeking an applicability
determination under the Parts 60,6 1, or 63 programs is, however, a separate process from the
development of the operating permit.
If it is determined that an operating permit does not correctly reflect a source's applicable
requirements, EPA has several courses of action that may be taken. These include objecting to or
reopening the permit for cause, as appropriate. In general, an operating permit shield regarding
Part 60, 6 1, or 63 requirements can only be created to the extent that the applicable requirements
are included and specifically identified in the permit, or the permit includes a written
determination from the permitting authority that specifically identified requirements are not
applicable to the source.
Sources should direct any questions pertaining to permitting obligations to their permitting
authority. Questions on the applicability of the NSPS or NESHAP should be directed to the
agency delegated the authority to issue applicability determinations (the permitting authority
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Section 3: Interface with Title V, continued
should be alerted, if not already involved). Usually States are the first stop for applicability
issues, as discussed in Section 5, "Who has the Lead"; however, the extent of delegation varies.
Questions of first impression which pertain broadly to implementation of the Part 70 program,
should be directed by permitting authorities to the appropriate EPA Regional Office, which in
turn should discuss the questions with EPA Headquarters. Given that the title V permitting
program is designed to bring applicable regulations together in the operating permit, it may
become challenging to distinguish a title V applicability question from a NSPS or NESHAP
applicability question.
Given the close tie between the programs, OECA and OAQPS (both the Operating Permits
Group in the Information Transfer and Program Integration Division in OAQPS, and the
Emission Standards Division in OAQPS) need to closely coordinate all applicability-related
inquiries which come to their attention.
Changes to Monitoring and Title V Operating Permits
The NSPS and NESHAP procedures for reviewing monitoring changes continue to be used to
evaluate and approve changes in monitoring for sources with operating permits. The operating
permit must be revised to incorporate any approved changes in monitoring requirements.
Alternative monitoring requirements reviewed and approved using the NSPS/NESHAP
alternative monitoring review process (as provided in 40 CFR sections 60.13,6 1.14,63.8 &
63.10, and discussed in this document) become applicable requirements which must be
incorporated into the permit in place of the prior monitoring requirements. For changes in
monitoring which are approved consistent with the NSPS/NESHAP procedures and delegations,
the monitoring terms in the operating permit may generally be revised using the minor permit
modification procedures.
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Section 4
Who has Authority
Overview
This section explains who is delegated the Administrator's NSPS and NESHAP authority to
issue applicability determinations and approve alternative monitoring. The first subsection (4.1)
reflects the current delegations of authority within EPA. The second subsection (4.2)
summarizes issues pertaining to delegations to State and Local Agencies. Information on who
among those agencies delegated authority has the lead is addressed in Section 5, "Who has the
Lead."
4.1. Delegated Authorities within EPA
The text and table which follow summarize the current delegations of the Administrator's
authority within EPA for applicability determinations and alternative monitoring. This
subsection also addresses regulatory interpretations and alternative testing, to distinguish these
functions from applicability determinations and alternative monitoring. Delegations of the
Administrator's authority are compiled in the "EPA Delegations Manual" maintained by the
Office of Administration and Resources Management, and are available on the Agency's Intranet
at:
http://intranet.epa.gov/rmpolicy
The relevant delegations of authority are provided in Attachment 3.
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Section 4.1: Delegated Authorities within EPA, continued
Applicability Determinations
Applicability Determination Delegation 7- 127 pertains to NSPS, section n l(d) plans and
Part 61 & Part 63 NESHAP.
Delegation 7- 127 delegates authority from the Administrator to Regional! Administrators and the
Assistant Administrator for OECA. Applicability determination authority is redelegated within
OECA to division directors and branch chiefs via memoranda dated June 6, 1994, and
August 3 1,1995 (Attachment 3).
Applicability determination authority is delegated to:
Regional Offices-delegable to branch chief level or equivalent, conditioned upon
auarterlv submission of summaries and conies of applicability determinations to the ADI.
OECA/Office of Compliance (OC)-delegated to division directors and branch chiefs in
the Manufacturing, Energy and Transportation Division (METD), the Chemical,
Commercial Services, and Municipal Division (CCSMD), and the Agriculture and
Ecosystem Division (AgED).
OECA/Office of Regulatory Enforcement (ORE)-delegated to division director and
branch chief in the Air Enforcement Division (AED).
14
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Section 4.1: Delegated Authorities within EPA, continued
Regulatory Interpretations
The authority to issue regulatory interpretations does not require delegation, per se. It is part of
EPA's responsibility in implementing the standards to resolve differing views and establish a
definitive position on the issue at hand by issuing a regulatory interpretation.
Regulatory interpretations of the NSPS and NESHAP are most often issued by OAQPS or OC,
depending on the nature of the question; however, Regional Offices, AED and OGC also issue
regulatory interpretations. Early consultation between offices should resolve any concerns about
which office would best serve as the lead. Given the broad nature of regulatory interpretations, it
is recommended that they be issued from the division director level or higher.
15
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Section 4.1: Delegated Authorities within EPA, continued
Alternative Monitoring
Alternative Methods Delegation 7-121 pertains to NSPS, Part 61 & Part 63 NESHAP4.
Delegation 7-121, authority 1 .a., delegates authority from the Administrator to Regional
Administrators (Attachment 3).
Alternative Monitoring authority is delegated to:
Regional Offices, delegable to branch chief level or equivalent.
Unlike previous delegations for alternative monitoring (superseded delegation 7-14), the
current delegation makes no distinction between minor or major revisions to monitoring,
and delegates this authority in whole to the Regional Offices only.
"Revisions to State section 11 l(d) plans require adoption by the State, notice and
opportunity for public hearing, and EPA approval.
16
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Section 4.1: Delegated Authorities within EPA, continued
Alternative Testing
Alternative Methods Delegation 7-12 1, and Performance Test Delegation 7- 119 pertain to NSPS,
Part 61 & Part 63 NESHAP4.
Delegation 7- 12 1, authority 1 .b., delegates authority for alternative testing from the
Administrator to the Director of OAQPS. Delegation 7-1 19 delegates authority for minor
changes in test methodology and waivers from the Administrator to Regional Administrators'
(Attachment 3).
Minor Test Revisions & Performance Test Waiver authority is delegated to:
Regional Offices, delegable to the branch chief level or equivalent.
Alternative Test Method authority is delegated to:
OAQPS, office director, delegable to the branch chief level or equivalent.
'Delegation 7- 12 1 will be updated to reflect the three levels of testing changes described
in the Part 63 delegable authorities guidance (Attachment 1) so as to delegate authority to issue
intermediate changes in testing to Regional Offices. (Intermediate changes would be classified
as major changes in the current delegations of authority, which may currently be approved only
by OAQPS.)
17
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Section 4.1: Delegated Authorities within EPA, continued
Delegations of Authority within EPA
Authority
Applicability
D eter minations
Regulatory
Interpretations
Alternative
Monitoring
Minor Test
Changes &
Performance Test
Waivers
Alternative
Test Methods
[Minor & Major
Test Changes)
Delegation #
EPA 7-127
OECA
redelegations
6/94 and 8/95
not applicable
EPA 7-121
EPA 7-1 196
EPA 7-121
Application
NSPS
NESHAP
(Part 61 &63)
Section 11 l(d)
plans
all regulations
NSPS
NESHAP
(Part 61 &63)
NSPS
NESHAP
(Part 61 & 63)
NSPS
NESHAP
(Part61 & 63)
Persons Delegated
Regional Offices
OECA/OC:
METD
CCSMD
AgED
OECA/ORE:
AED
not applicable,
but usually issued by
OECA or OAQPS
Regional Offices
Regional Offices
OAQPS
6The authority for minor changes to test methods will be folded into Delegation 7- 12 1,
Alternative Methods, and will be expanded to include delegation of intermediate test changes to
Regional Offices.
18
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Section 4: Who has Authority, continued
Section 4.2. Delegations to States and Local Agencies
Delegable Authorities
States, and in some cases Local Agencies, are typically delegated those authorities which do not
alter the stringency of the standard, which do not require Federal oversight for national
consistency, and which do not require Federal rulemaking. EPA developed guidance in the
1980's (Attachment 2)7 on the types of authorities which State and Local Agencies should
exercise for the NSPS and Part 61 NESHAP programs. That guidance lists specific General
Provision authorities which should not be delegated beyond EPA. The Part 63 delegable
authorities guidance issued on July 10, 1998 (Attachment 1) indicates which Part 63 General
Provision authorities are and are not appropriate to delegate to State or Local Agencies.
The 1998 Part 63 delegable authorities guidance differs slightly from the 1980's guidance on
NSPS and Part 61 NESHAP in that it potentially allows the delegation of more authority to State
and Local Agencies for applicability determinations and alternative monitoring. The 1980's
guidance recommended that State or Local Agencies perform only routine applicability
determinations based on an established precedent. The Part 63 guidance contains no such
limitation on State or Local authority. The Part 63 guidance does however specifically indicate
that EPA Regional Offices should be notified when State or Local Agencies make applicability
determinations.
'The guidance consists of EPA's 1983 Good Practices Manual for Delegation of NSPS
and NESHAPS, a memorandum from the Assistant Administrator for Air, Noise and Radiation
dated March 24, 1982, and four memoranda from OAQPS dated February 24, 1983,
December 17, 1984, September 11, 1986 and November 12, 1986. The memoranda comprise
Attachment 2.
The Part 61 NESHAP delegation procedures referenced in the 1983 Good Practices
Manual are now superceded by the procedures in Part 63, Subpart E. See discussion on page 22,
on the "Delegation Process."
19
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Section 4.2: Delegations to States, continued
The 1980's guidance on NSPS and NESHAP delegation restricted State and Local authority for
alternative monitoring to acting on minor changes in methodology. The Part 63 delegable
authorities guidance expands the delegable authority to State and Local Agencies for alternative
monitoring to include intermediate changes in monitoring, again with notification to the Regional
Office.
Today's guidance allows conformity between the extent to which applicability
determination and alternative monitoring authority may be delegated to State and Local
Agencies for Part 60 NSPS, and Parts 61 and 63 NESHAP.8 Consistent with the
July 10, 1998 Part 63 delegable authorities guidance, applicability determination authority may
be delegated to State and Local Agencies for the NSPS and Part 61 NESHAP, without restriction
to "routine" determinations. Likewise, authority to issue intermediate changes in monitoring
may be delegated to State and Local Agencies for the NSPS and Part 61 NESHAP. However,
consistent with the Part 63 guidance, it is recommended that Regional Offices require
notification when these decisions are made, and that authority not be delegated for decisions
which are likely to be nationally significant or alter the stringency of the underlying standard.
Implementation of the Part 63 delegable authorities guidance involves clarifying with State and
Local Agencies which Part 63 General Provision authorities have and have not been delegated.
Today's guidance does not envision that Regional Offices necessarily revisit the existing
delegations of authonty for the NSPS and Part 61 NESHAP programs. EPA Regional Offices
will continue to use their discretion when determining which authorities, within the list of
delegable authorities, should be delegated to any particular State or Local Agency, and whether
to attach any restrictions or formal notification requirements to those delegations.
Note that some regulations specifically list authorities which may only be performed by EPA.
For example, NSPS Subpart RRR for SOCMI Reactor Processes specifies in section 60.708 that
provisions related to alternative means of control cannot be delegated to States. Subpart E of
Part 63 lists CAA section 112 authorities which may not be delegated to State or Local Agencies,
such as the authority to add or delete pollutants from the list of hazardous air pollutants. These
regulatory provisions in addition to the referenced guidance documents (Attachments 1 & 2)
contain the authorities which may not be delegated to State or Local Agencies.
8The delegation of authority to make revisions to test methods for the Parts 60 and 61
programs may also follow the recommendations of the Part 63 delegable authorities guidance.
See Attachment 1 for an explanation of the extent to which authority to approve alternative
testing may be delegated, and restrictions on implementation of that authority.
20
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Section 4.2: Delegations to States, continued
Nature of State Determinations
Decisions which State and Local Agencies make, such as State applicability determinations, are
not binding on the EPA. Delegation of authority to State and Local Agencies is not intended to
give those agencies the authority to issue interpretations of Federal law that are subsequently
binding on the Federal Government. EPA through its oversight of State and Local Agencies
confirms proper use of these delegated authorities. During oversight, if the EPA Regional Office
determines that a State or Local Agency made decisions that decreased the stringency of the
standard, then corrective actions should be taken, and the source(s) should be notified.
Ultimately, only EPA can make a determination as to the applicability of a Federal standard or
the appropriateness of a revision to a Federal standard.
Through the title V operating permit program, State or Local Agency determinations would be
reflected in the operating permit. However, if it is determined that an operating permit does not
correctly reflect a source's applicable requirements, EPA has several courses of action, as
discussed in Section 3, "Interface with Title V Operating Permits." These actions include
objecting during EPA's 45 day review period to an improper determination reflected in the
permit. In States where permit shields are provided which cover applicability determinations,
EPA may reopen the permit for cause, and require the improper applicability determinations to
be changed hence forth in the permit. In States without permit shields, EPA has the authority to
enforce violations of the underlying regulations, notwithstanding the State's issuance of a permit
reflecting an incorrect determination.
21
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4.2: Delegations to States, continued
Delegation Process
The mechanism which is used to delegate authority to $tate and Local Agencies is separate from
the EPA internal delegations discussed in Section 4.1. 'Typically, the Governor of a State or his
or her designee submits a written request for delegation of authority to implement and enforce
the NSPS and NESHAP. Upon EPA approval, States may either implement the NSPS and
NESHAP regulations directly, adopt the regulations by reference, or develop and implement
State regulations which are identical to or at least as strngent as the Federal regulations. EPA's
approval of the delegation is published in the Federal Register.
Procedures for EPA review and approval of NSPS pro grais are discussed in Guideline S. 13,
"Delegation of Authority to the States--NSPS and NESHAPs" issued by the Division of
Stationary Source Enforcement in the 1970's, and in the Good Practices Manual. Procedures for
delegation of Part 61 and Part 63 NESHAP programs now follow the procedures in Subpart E of
Part 63. Prior to the 1990 CAA Amendments, delegation procedures for the Part 6 1 NESHAP
followed Guideline S. 13 and the Good Practices Manual.9
States (or Local Agencies) implement EPA's Emission [Guidelines for Designated Facilities
through a State plan which is adopted by the State and approved by EPA in accordance with
section 11 l(d) of the Clean Air Act. Each State plan must show that the State has legal authority
to carry out the plan (40 CFR 60.26). Revisions to requirements in the plan would necessitate
notice and opportunity for public hearing, and EPA review and approval.
9The original authority on which the Part 61 NESHAP delegations were based
(CAA section 112(d)( 1)) was removed in the 1990 CA/i Amendments and replaced by CAA
section 112(1). Part 63 Subpart E now implements CA4 section 112(1), Therefore, any revisions
to existing Part 61 delegations would follow Part 63 Subpart E.
22
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Section 5
Who has the Lead
Overview
This section addresses which of the offices with delegated authority has the lead in issuing
applicability determinations and alternative monitoring responses. Separate subsections are
devoted to applicability and monitoring. Both subsections discuss which office assumes the lead,
and how and where requests and responses are to be sent. Flow diagrams illustrate the course of
the lead responsibility. The unique issue of how to respond to applicability issues after the
activity in question has occurred, is the subject of an Inset at the end of subsection 5.1.
5.1. Lead Offices for Applicability Determinations
Whose Lead-State or EPA Region
Although the extent to which authority for issuance of applicability determinations has been
delegated to State and Local Agencies varies, State ojr Local Agencies are the first stop for
applicability questions, and generally issue determinations which are routine in nature. Regions
may, in their delegations of authority to the State or Local Agency, specify the type of
determinations that should be forwarded to the Region for response. Examples of determinations
that are typically forwarded to EPA Regional Offices] for response include those that:
• are unusually controversial or complex
have bearing on more than one State or district (are multi-Regional)
appear to create a conflict with previous policy or determinations
are a legal issue which has not previously beeil considered (a matter of first impression)
raise new policy questions.
2 3
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Section 5.1: Lead Offices for Applicability Determinations, continued
In response to the Part 63 delegable authorities guidance, the existing delegations of authority to
issue applicability determinations may, within the discretion of the Regional Office, be
expanded. Since the type of determination which State or Local Agencies may issue varies, the
reader should consult with the appropriate Regional Office for questions on how this process
works for a particular State or Local Agency.
24
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Section 5.1: Lead Offices for Applicability Determinations, continued
Whose Lead—EPA Region or Headquarters
Within EPA, the Regional Offices have the primary responsibility and lead role in issuing
applicability determinations. The August 1995 delegations of the Administrator's authority
under which the Agency currently operates allow Regions to act on all applicability issues,
including those which are nationally significant or multi-Regional in nature. In the course of
developing their responses, Regional Offices are encouraged to consult with EPA Headquarters,
other Regional Offices, and the State or Local Agency that has jurisdiction for the source (see
Section 6, "EPA Consultations").
Communication within EPA, research of the issue, and review of memoranda posted on the ADI,
are essential to ensuring national consistency (see Section 8, "Basic Steps in Developing
Applicability Determinations"). Improved access to previous determinations through the ADI,
and rapid electronic dissemination of drafts for review by Headquarters and other Regional
Offices has enabled Regions to take the lead in issuing determinations, and has obviated the need
for determinations to be issued from a centralized office in the vast majority of cases.
There are, however, limited circumstances under which a Regional Office may request a
written response from Headquarters to assist the Region in their response back to the State or
source. Headquarters is typically involved in drafting responses where:
• the source challenges a Regional determination which has already been issued;
• the determination is multi-Regional and controversial in nature (it affects a decision being
made in another Region and there is some question or conflict as to how the issue should
be resolved);
« conflicting policies or determinations are identified;
* the question involves a legal issue which has not been previously considered.
Although it is not necessary that Headquarters take the lead in these cases, Regional Offices may
request a written Headquarters response in these cases at the Region's discretion. In such cases,
the Region sends a memorandum to the appropriate Headquarters division director, explaining
the facts at hand, posing a specific question for response, and expressing the Region's position
on the issue.
25
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Section 5.1: Lead Offices for Applicability Determinations, continued
Lead within Headquarters
Within Headquarters, the Office of Compliance (OC) in OECA is the focal point for questions
concerning NSPS and NESHAP applicability. OC is the Headquarters lead for issuing
applicability determinations, except in those cases where the Regional Office is preparing a
civil judicial action for referral to the Department of Justice (DOJ) for the source in
question. The Air Enforcement Division (AED) in the OECA's Office of Regulatory
Enforcement (ORE) is the Headquarters lead when a civil judicial referral is being prepared.
This constitutes a change and clarification in the lead role of OC and ORE/AED in addressing
source-specific applicability issues. Prior to today's guidance, ORE/AED was the lead within
Headquarters for applicability issues which pertained to an enforcement action. Today's
guidance focuses AED's lead role on those questions involving a civil judicial referral. For other
questions referred to Headquarters, including those where an administrative action is being
prepared, and where the Region has not decided in which forum (administrative or judicial) to
pursue an enforcement action, OC would have the lead. Likewise, OC will continue to be the
Headquarters lead for situations where no enforcement action is warranted.
OC staff is also responsible for posting notes on the ADI for any determinations which
need clarification (see also Section 8, Step 5). OC would also be the lead within OECA for
resolving apparent or actual inconsistencies between determinations.
This policy will simplify the assignment of applicability determinations by eliminating guess
work as to which OECA office (ORE versus OC) should be the lead. It will have the benefit of
increasing the OC sector leads' active involvement in issues pertaining to their sector, while
retaining AED's oversight of civil actions.
Within OC, applicability issues are handled by the sector lead for the affected industry, which
may reside in either the Manufacturing, Energy and Transportation Division (METD), the
Chemical, Commercial Services, and Municipal Division (CCSMD), or the Agriculture and
Ecosystem Division (AgED). If a Regional Office is unsure of who to contact, they may inquire
with the air media lead for OC, residing in METD.
In accordance with 40 CFR sections 60.5(b) and 61.06, EPA should issue applicability
determinations within 30 days of receipt of the request. Therefore, it is recommended that OC
and AED division directors begin tracking the timeliness of responses sent to Regional Offices,
and urge that staff finalize responses to Regional Office applicability-related inquiries well
within one month of receipt of the Region's written request.
26
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Section 5.1: Lead Offices for Applicability Determinations, continued
Requests-Where to Send
As depicted in following diagram, "Lead Offices for Applicability Determinations," requests for
applicability determinations should be sent by the source directly to the State or Local Agency
which has been delegated the authority to issue determinations; this is consistent with the
primary role of States in implementing the Clean Air Act. In the event that the State or Local
Agency has not been delegated authority to issue applicability determinations, the request should
be sent directly to the EPA Regional Office. A list of the delegated State and Local Agencies and
their addresses is located in 40 CFR sections 60.4 and 61.04. Section 63.13(b) instructs sources
to contact the appropriate Regional Office to obtain the mailing address of the State or Local
Agency.
Requests sent to the State or Local Agency may be responded to by the State or Local Agency, if
the issue is within the scope of the State or Local Agency's delegated authority. Otherwise, the
request is forwarded to the EPA Regional Office for response. If the source bypasses this process
and sends the request to EPA Headquarters, the request should be immediately forwarded from
Headquarters to the appropriate Regional Office, so that the Region may decide whether the State
or the Region should take the lead in responding.
Sometimes a question regarding a source's applicability originates within a State or Local
Agency. To clarify for the State how the regulations should apply, the State should forward a
written request to the EPA Regional Office. Again, if EPA Headquarters receives a request
which has bypassed the Regional Office, it should generally be forwarded to the appropriate
Regional Office for response.
27
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Section 5.1: Lead Offices for Applicability Determinations, continued
Lead Offices for Applicability Determinations
Written Request
from Source
Delegated State*1
or
Local Agency
Exceeds State's delegated authority
Case-Specific decision for Regional Office Lead
Guidance to
Region
or
Applicability
Determination**
Limited
Circumstances
^^T
Regional
BRequest
1 to HQ
Civil Referral
In Progress
State
Applicability
Determination
Applicability
Determination
or
Guidance to State
Guidance to
Region
or
Applicability
Determination**
* If the State is not delegated the authority to issue applicability determinations, the source should send the written
request directly to Ihe EPA Regional Office.
* * Headquarters rarely issues determinations directly to the source. Usually the Headquarters response is in the
form of a memorandum to the EPA Regional Office.
28
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Section 5.1: Lead Offices for Applicability Determinations, continued
Responses—Type and Where to Send
State or Local Agency applicability determinations are issued directly to the source or party
which has requested the determination. As discussed previously (Section 4.2, on "Nature of
State Determinations"), State and Local Agency determinations are not binding on the EPA.
Regional Offices may issue either an applicability determination or regulatory interpretation
depending on whether a source-specific or generic response is appropriate. In cases where the
action in question has already occurred, Regions need to consider whether an applicability
determination is the most appropriate response, given the pre-enforcement context of the issue
(see inset, "Responding to Post Hoc Requests"). Typically, the Regional Office sends its
response to the State, where it is used to form the basis of a State determination or response back
to the source. The Region may respond directly to the source, but in accordance with the States'
primary role in implementing the Clean Air Act, most responses are sent through the State or
Local Agencies.
Headquarters responds in writing to requests pertaining to applicability with a regulatory
interpretation or an applicability determination. Based on the Headquarters response, the Region
either issues an applicability determination to the source, or forwards the information to the
State, who in rum responds to the source. Headquarters may issue an applicability determination
directly to a source; however, this is rarely necessary or appropriate given the Regions' and
States' lead roles in implementing the regulatory programs.
EPA-issued applicability determinations must be posted on the ADI. Update procedures for
the ADI are provided in Attachment 4.
State-issued Part 63 applicability determinations should be posted by States on their State
websites, and linked to the Unified Air Toxics Website (UATW). Questions on UATW links
may be directed to the Information Transfer and Program Integration Division in OAQPS
(contacts provided in Attachment 6). Links to State websites are located on the Comprehensive
Rule Pages on the UATW at: http://www.epa.gov/ttn/uatw/eparules.html
29
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Section 5.1: Lead Offices for Applicability Determinations, continued
Responding to Post Hoc Requests
For applicability inquiries where the source has already taken the action in
question, it is important to consider the alternatives to issuing an applicability
determination. There are potential enforcement ramifications for these post hoc
requests. In some cases, it may be desirable to proceed directly with an
enforcement action.
If the source has sent a written inquiry to the Agency after construction or after the
physical or operational change has commenced, consider the following options for
a response:
• A letter of acknowledgment to the source of their inquiry, pending further
action.
« A preliminary warning letter to the source that puts the source on notice that
the action as described may constitute a violation, without finally deciding
the issue.
» An applicability determination that finally decides the issue.
For requests sent to OECA from the Regions, another option is an internal
memorandum to the Region, marked "enforcement sensitive" and not intended for
release to the source.
Consult the Office of Regional Counsel (ORC) or ORE/AED enforcement
attorneys, as appropriate, for advice on the best option to choose in a particular
circumstance, and the best wording of the response letter.
30
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Section 5: Who has the Lead, continued
Section 5.2. Lead Offices for Regulatory Interpretations
Requests for generic regulatory interpretations pertaining to applicability criteria may be difficult
to distinguish from requests for applicability determinations. In such cases, the requestor should
be asked if their intent is to receive a source-specific applicability determination, pursuant to
section 60.5 or 61.06.
Regulatory interpretations posed to EPA which require clarification or simplification of the
regulatory requirements should generally be issued by the EPA Regional Offices. However,
interpretations which pertain to unforeseen gaps in the regulation should generally be issued from
EPA Headquarters. OECA/OC and OAQPS should consult to determine who should take the
lead in responding to issues raised to Headquarters. Although OC generally takes the lead in
issues pertaining to applicability, there may be circumstances where OAQPS would be better
suited to respond. Regardless of which office assumes the lead, the critical component in issuing
the interpretation is that both offices concur.
31
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Section 5: Lead Offices, continued
Section 5.3. Lead Offices for Alternative Monitoring
Whose Lead—State or EPA Region
Minor monitoring alternatives are generally acted on by the State or Local Agency to whom
authority has been delegated. Major monitoring alternatives, including entirely new monitoring
systems, are generally handled by the EPA Regional Office. The July 10, 1998 Part 63 delegable
authorities guidance describes three types of changes in monitoring: minor, intermediate, and
major. That guidance indicates that both minor and intermediate monitoring alternatives may be
delegated to State or Local Agencies, with appropriate oversight by Regional Offices. Today's
guidance enables Regional Offices to apply those same three distinct levels of monitoring
changes to State and Local Agency delegations for the Part 60 NSPS and Part 61 NESHAP
programs.
The following diagram, "Sample Lead Offices for Changes in Monitoring," depicts the most
common division of authorities, whereby minor alternative monitoring requests are acted upon
by the State. Sources should check with their State or EPA Regional Office to determine the
level of State delegation for monitoring alternatives and where to send requests.
Lead within EPA
Within EPA, Regional Offices have the lead for reviewing, approving, or disapproving
alternative monitoring. Headquarters is no longer delegated the authority to issue alternative
monitoring; however, Headquarters provides assistance to Regional Offices upon request.
Regions are encouraged to consult with Headquarters, particularly OAQPS, where additional
technical expertise is necessary for evaluating the request. It is also suggested that OAQPS
routinely be consulted with to ensure national consistency (see Section 6.3, "Consultation
Procedures for Regional Offices"). Regions should always review the ADI to discern the
Agency's action on any similar requests.
32
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Section 5.3: Lead Offices for Alternative Monitoring, continued
Sample Lead Offices for Changes in Monitoring
Written Request
from Source for
Monitoring Change
Delegated State
or
Local Agency
Major Change/
Broad Change
Minor
Monitoring Change
Approval
or Disapproval
State
Request
to Region
7
Written Request
from Source
for Major
Monitoring Change
Monitoring
Change
Approval
or Disapproval
This diagram depicts a common division of authority in the delegated role for reviewing and approving
monitoring alternatives. The lead office for any one State may vary depending on State-specific
delegated authorities. States may additionally be delegated the authority to issue intermediate changes in
monitoring. If a State is not delegated the authority to act on minor changes, written requests should be
sent directly to the EPA Regional Office.
33
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Section 5.3: Lead Offices for Alternative Monitoring, continued
Where to Send Requests and Issuance of Responses
As with applicability issues, State or Local Agencies are usually the first stop for source
inquiries. States typically respond to minor alternative monitoring inquiries, and forward other
monitoring issues to the EPA Regional Office according to their State-specific delegations or due
to a need for technical or policy assistance. Consistent with the Part 63 delegable authorities
guidance, States may also respond to intermediate changes in monitoring where delegated.
The Region may respond directly to the source, or send a response or guidance to the State or
Local Agency who in turn responds to the source. The preceding diagram, Sample Lead Offices
for Changes in Monitoring, depicts a common division of authorities.
Responses take the form of a letter of approval or disapproval, and should include the Agency's
rationale (see Section 9, "Drafting Points"). For disapprovals, the response may spell out or
suggest revisions to the proposal which would make the alternative acceptable. Whether to
attach or suggest such conditions is at the Agency's discretion, since it is the source's
responsibility to propose acceptable alternatives if they do not wish to follow the methods
already developed by the Agency.
As discussed previously (see Section 4.2, regarding "Nature of State Determinations"), State and
Local Agency decisions on alternative monitoring are not binding on the EPA. However, EPA's
response back to the State on a specific monitoring inquiry is a binding EPA decision, within the
limitations of the information provided to the EPA.
EPA-issued alternative monitoring decisions should be posted on the ADI (see Attachment 4
for information on ADI update procedures). Intermediate changes to monitoring issued by State
or Local Agencies should be sent to the Emission Measurement Center in OAQPS via mail or
facsimile. I0
10All State-issued intermediate changes to monitoring (as well as intermediate changes to
testing issued by States or Regional Offices) should be copied to: Chief, Source Characterization
Group A, U.S. EPA (MD-19), Research Triangle Park, NC, 27711; Facsimile Telephone Number
919-541-1039.
34
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Section 6
EPA Consultations
Overview
When developing applicability determinations or responses to monitoring proposals, the draft
response should be discussed with EPA offices that have relevant expertise and interests.
Although the current delegations of authority do not require concurrence or consultation with
other offices, consultation is imperative to ensuring national consistency.
In a few cases, there are informal work groups which can be used to accomplish this consultation.
The Municipal Waste Combuster and Continuous Emission Monitoring Systems workgroups are
examples. Otherwise, the staff lead for developing the response will need to individually contact
each affected office.
This section details the recommended consultation procedures for each lead office (OECA,
OAQPS, and Regional Offices) for applicability determinations, regulatory interpretations, and
alternative monitoring. This section includes regulatory interpretations of applicability and
monitoring requirements since these more generic interpretations impact the source-specific
applicability and alternative monitoring determinations. Given their far-reaching affect,
regulatory interpretations should undergo the same consultations as are recommended for
Headquarters applicability determinations.
In situations where staff cannot readily reach agreement on an application-related issue, the issue
should be quickly elevated to management for resolution. OAQPS and OECA have established a
forum to expedite management-level issue resolution between OAQPS and OECA (see Section 8,
Step 5, "Resolve Issues").
Proper treatment of correspondence drafted during deliberations is highlighted in an inset at the
end of this section.
35
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Section 6: EPA Consultations, continued
Section 6.1. Consultation Procedures for OECA—
Applicability Determinations and Regulatory Interpretations
OECA staff should routinely consult with other offices when developing NSPS or NESHAP
applicability determinations or regulatory interpretations. Consultation should consist of a
heads up phone call from the OC sector or AED staff lead to the reviewing office's lead
staff, followed by an e-mailed draft of the response. The purpose of the initial phone call is to
obtain preliminary input from other offices, and to let the office know when to expect a draft,
The OC sector lead (or AED staff lead, for cases involving a civil referral) is responsible for
performing the background research on the assigned question prior to providing a draft response
for review (see also Section 8, "Steps in Developing Applicability Determinations").
Staff in the OECA must consult with the following offices/divisions:
• Office of Air Quality Planning and Standards (DAOPS) - the Emission Standards
Division (BSD) in OAQPS has a stake in the accuracy of determinations and regulatory
interpretations given their lead role in developing the NSPS and NESHAP. BSD staff
should be consulted on all determinations and regulatory interpretations. Informal
concurrence (oral or e-mailed) from the BSD staff person should be received prior to
issuing the final response. OAQPS has agreed to generally provide input within one
calendar week. If no input is received after affirming receipt of the draft by the proper
OAQPS staff, OECA may assume OAQPS concurrence.
« Office of General Counsel (OGC) - given OGC's expertise in interpreting regulations
and role in defending applicability determinations in the Courts of Appeals, the OGC lead
for NSPS & NESHAP should be consulted on all headquarters applicability
determinations and regulatory interpretations.
* Regional Offices -- it is essential that OECA consult with the Region in which the source
is located since the Region is responsible for implementing the determination. Other
Regions may be consulted on an as-needed basis given Region-specific expertise (for
example Region 5 has experience with steel plants, Region 7 with roek crushers). The
Lead Region for air enforcement is a useful contact for general Regional feedback (see
contacts in Attachment 6). Established working groups may also provide a vehicle for
Regional feedback, such as the monthly air toxic telephone conferences.
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Section 6.1: OECA Consultation Procedures, continued
Office of Compliance (QC) -- OC staff may consult with the air media leads within OC
on an as-needed basis; however, the air media leads do not routinely review all NSPS and
NESHAP determinations. Any determinations or interpretations pertaining to more than
one sector should be coordinated with the other affected sector leads.
AED staff must consult with the OC sector leads in all cases. AED staff must also
consult'with the OC air media lead in cases which include interpretation of the General
Provisions.
OC staff should provide their input within one calendar week.
Office of Regulatory Enforcement (ORE) -- the Air Enforcement Division in ORE
should be consulted on all OC applicability determinations and regulatory interpretations.
AED should be alerted immediately when the question involves a potential violation,
such as when the source has already constructed or modified (a post hoc
determination). AED staff should provide their input within one calendar week.
Any disagreements with OECA's draft position can usually be resolved at the staff level. Any
remaining substantive differences should be quickly elevated to management for resolution.
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Section 6: EPA Consultations, continued
Section 6.2. Consultation Procedures for OAQPS-
Regulatory Interpretations
For regulatory interpretations on applicability or monitoring issues for which OAQPS is the lead,
it is imperative that OAQPS consult with the following affected offices. Often a regulatory
interpretation has bearing on enforcement actions and implementation practices in the Regions
which are already underway.
The consultation procedures for regulatory interpretations are analogous to those presented for
OECA in Section 6.1, consisting of a heads up phone call and an e-mailed draft of the
memorandum. For questions pertaining to Part 63, OAQPS maintains a "MACT Issue
Resolution Process" which may be the apprdpriate means of alerting reviewers to the issue, and
obtaining reviewers' position (contact provided in Attachment 6). Differences which cannot be
resolved at the staff level should quickly be elevated for resolution by management.
• OECA/Office of Compliance (OC)__- sector leads should always be consulted in the
development of NSPS and NESHAP regulatory interpretations. The leads for air issues
within METD should be contacted on issues pertaining strictly to the General Provisions.
OC staff should provide their input within one week of receiving the inquiry.
OC staff are the focal point for coordination of comments within OECA. As such,
OC staff are responsible for involving ORE's Air Enforcement Division as
appropriate.
Office of General Counsel (QGC) - given OGC's expertise in interpreting regulations
and defending the Agency's implementation of thdse regulations, the OGC lead for NSPS
& NESHAP should be consulted on all Headquarters regulatory interpretations.
Regional Offices - - it is essential that OAQPS consult with affected Regions since
Regions are ultimately responsible for implementing regulatory interpretations, and since
Regional Offices would be aware of established practices in interpreting the provision in
question. Because regulatory interpretations are broad in nature, it may not be possible to
identify only one or two affected Regions. In these cases, OAQPS should rely on the
Lead Region for air enforcement. Established working groups may also provide a vehicle
for Regional feedback, such as the monthly air toxic telephone conferences.
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Section 6: EPA Consultations, continued
Section 6.3. Consultation Procedures for Regional Offices-
Applicability Determinations and Alternative Monitoring
To ensure nationally consistent responses, Regional Offices are encouraged to consult with OC,
OAQPS, and legal counsel on a routine basis. Although Regional Offices need only consult with
Headquarters on precedent-setting issues, consultation with all the offices listed results in the
best quality responses." Regulatory interpretations must include consultation with the listed
Headquarters offices, given the far-reaching effect of regulatory interpretations. Communication
between Regions is also essential to ensuring national consistency.
To enable routine consultation without delaying responses, OAQPS and OC have
committed to a one week review of draft applicability determinations. If no response is
received within one week of providing a draft to the appropriate headquarters contact(s), the
Region may move forward with issuing their response. OAQPS has committed to providing
consultation within these time frames for alternative monitoring responses as well.
OECA/Office of Compliance - the 'Regional Office should consult with sector leads in
OC in the development of precedent-setting applicability determinations. The leads for
air issues within METD should also be contacted on precedent-setting issues pertaining
strictly to the General Provisions. OC staff should provide their input within one
week of receiving the inquiry.
OC staff are the focal point for coordination of comments within OECA. As such, OC
staff are responsible for involving ORE's Air Enforcement Division in applicability
questions as appropriate. OC staff are expected to alert AED immediately if the question
involves a potential violation, such as when the source has already constructed or
modified (post hoc determinations).
QAQPS -the Emission Standards Division has technical expertise and interest in
applicability and monitoring issues given their lead role in developing the NSPS and
NESHAP. OAQPS should be consulted on all precedent-setting issues, and where their
"The "Review of the Applicability Determination Index; NSPS Memoranda." issued by
METD on luly 23, 1998 noted that responses that were clearly coordinated with other offices
were among the highest quality.
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Section 6.3: Regional Office Consultation Procedures, continued
technical expertise is needed. Where Regions request routine consultation, OAQPS will
provide input within one week of receiving the inquiry.
Offices of Regional Counsel (PRO - Regional staff should routinely consult with their
ORC in the development of applicability determinations. If there is a potential violation
(i.e.,. when the source has already proceeded with construction or modification),
consultation with ORC should include a discussion of whether issuance of an
applicability determination is the best course of action (see inset in Section 5.1,
"Responding to Post Hoc Requests").
Other Regional Offices - communication between Regions is essential to ensuring
national consistency. Although the ADI is the principle means of reviewing EPA's
applicability and monitoring decisions across the country, there is an inherent time lag of
up to three months before memoranda are available on the ADI. Regions may need to
consult with the Lead Region for enforcement, or with other Regions to determine
whether there has been any recent activity on a related issue. OC staff may be useful in
identifying other Regions which have recently dealt with similar questions.
State or Local Agencies - consultation with the State or Local Agency that has
jurisdiction for the source is encouraged, as they may have crucial information bearing on
the determination.
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Section 6: EPA Consultations, continued
Correspondence During Deliberations
Written materials generated during deliberations, i.e.,
drafts for review
comments from reviewers
recommended positions from non-lead offices
should be clearly labeled:
"NOT FOR EXTERNAL DISTRIBUTION"
and
"DELIBERATIVE PROCESS" or '?REDECISIONAL" or "DRAFT"
These labels put the public on notice that the discussion within the document is not
an Agency decision which creates any rights.
The reason such labels should accompany drafts is self-evident-they are works in
progress that might otherwise be mistaken as an Agency positian,
It is equally important that written correspondence from reviewing offices contain
these labels. Comments provided by reviewers are not formal Agency positions.
Reviewers must label the position of their office as "predecisional" or "deliberative
process" since only the office with delegated authority may issue the formal Agency
determination.
Regulatory interpretations pertaining to applicability should not be issued while
the Agency is developing an applicability determination on a related subject. Proper
consultation in the development of regulatory interpretations will identify any related
source-specific inquiries under review by the Agency.
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Section 7
Informal Inquiries
Overview
EPA receives many telephone inquiries from sources, their consultants and counsel. E-mail is
used increasingly for soliciting ideas and input. It is important to distinguish these informal
discussions from formal, signed applicability determinations and alternative monitoring
responses.
Requests for applicability determinations or alternative monitoring must be sent to the delegated
agency in writing, and responses must be signed by a person to whom authority has been
delegated. Responses provided over the phone or through or e-mail discussions are considered •
informal guidance.
This section covers points to consider when responding to telephone and e-mail inquiries, and
how informal inquiries are addressed by SBREFA.
Responding to Phone Inquiries
It is a useful and necessary public service to provide information about the regulations to the
public over the phone. It is equally important that the caller understand that the Agency cannot
provide determinations or approve alternatives over the phone. Agency staff responding to
phone calls should provide whatever general information is on point, but inform the caller that a
written inquiry is necessary if the caller wishes to pursue an applicability determination or
alternative monitoring. Callers should be referred to the State or Regional Office with the
primary responsibility for implementing the NSPS and NESHAP.
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Section 7: Informal Inquiries, continued
Bear the following points in mind when responding to telephone inquiries:
Avoid the discussion of hypothetical scenarios that lack enough specific details to give an
accurate response.
Refer the caller to the Applicability Determination Index and other background
documents that may be useful to them. Give the caller basic information on how to use
and search for documents on the ADI.
The Internet address for the ADI is:
http://ttnwww.rtpnc.epa.gov/cfdocs/adiwww/adiwww.html-ssi
The ADI can also be accessed through METD's home page at:
http://www.epa.gov/oeca/metd
Respond in general to the question by helping the caller understand determinations or
guidance that have already been issued on topics related to the inquiry.
Remind the caller that a request for a determination of applicability, or a request for
alternative monitoring, needs to be submitted in writing to the Agency.
• Determine the location of the facility, and refer the caller to the appropriate Regional
Office or State or Local Agency.
The staff person should follow up with a call to the State or Regional Office. This allows the
State or Region to be better prepared to handle the question. It is also useful for the Regional
Office and State to know who the source has consulted.
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Section 7: Informal Inquiries, continued
Responding to E-mail
E-mail is a useful way for staff to consult with each other on NSPS and NESHAP questions, and
is an efficient means for inter-office review of draft determinations and monitoring responses.
E-mail inquiries from Regional Offices on NSPS and NESHAP applicability issues should be
directed to the OC sector lead. OC staff need to be responsive to these requests to help ensure
national consistency, and need to involve ORE/AED immediately if the applicability issue
involves an action which the source has already taken. OC staff should provide their response to
informal applicability-related inquiries from the Regional Offices within one week (see
Section 6, "EPA Consultations").
When communicating via e-mail, label the response:
"NOT FOR EXTERNAL DISTRIBUTION" and
"DELIBERATIVE PROCESS" or "PREDECISIONAL."
These cautionary statements will prevent confusion in the event that the message is viewed
outside of the Agency.
In general, EPA staff should not respond to sources through e-mail, since the message could be
mistaken for a formal written determination. Also, Headquarters should not respond directly to
State or Local Agencies via e-mail without involving or copying the Regional Office which has
oversight responsibility for that State or Local Agency.
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Section 7: Informal Inquiries, continued
Small Business Regulatory Enforcement Fairness Act (SBREFA)
Requirements for Informal Inquiries
Under SBREFA section 2 13, EPA has designated the Informal Guidance Program to respond to
fact-specific, compliance-related inquiries from small entities. This Informal Guidance Program
draws on the resources of Small Business Ombudsman, Regional small business liaisons,
technical and program staff, and the related hotlines and clearinghouses. EPA designed this
program to ensure accessibility of the informal guidance to the small entity community, and to
avoid duplication with existing activities.
The procedures discussed in this section form an important part of the Informal Guidance
Program. OC sector leads and Regional Office technical and program staff provide informal
guidance when responding to phone inquiries from the regulated community. However, written " '
requests for applicability determinations, monitoring alternatives, and regulatory interpretations *
are not considered informal, and must be handled through the formal written procedures
addressed elsewhere in this document. It is important to remind the public of the distinction
between the formal applicability determinations/alternative monitoring and informal guidance.
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Section 8
Steps in Developing Applicability Determinations
Overview
There are eight basic steps in developing an accurate applicability determination. These are:
1. Clarify the request
2. Research (regulations, preambles, ADI, background information documents)
3. Consult
4. Prepare Draft (either before or after consultation)
5. Resolve Issues
6. Issue Determination from Delegated Authority (carbon copy reviewers)
7. Post Determination on ADI
8. Publish Notice of Availability in the Federal Register
Implicit in this discussion is an understanding that the Agency has decided that issuing an
applicability determination is the best course of action for the particular case. When an
applicability question pertains to an action which the source has already taken (a post hoc
situation) there are obvious enforcement implications which may cause the Agency to proceed
with a different type of response. See the inset in Section 5.1 for how to respond to applicability
inquiries in post hoc situations.
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Section 8: Steps in Developing Applicability Determinations, continued
The Eight Steps
1. Clarify the Request
The first step in preparing an applicability determination is to make sure the question is clearly
understood. This may require contact with the person who sent the inquiry. For Headquarters,
this typically means discussing the inquiry with the Regional Office; for Regions it is usually the
State or source.
2. Research
The next step is to research the topic. The obvious place to start is to carefully read the
regulation, paying particular attention to the "applicability" and "definitions" sections. Based on
reading the regulation alone, the staff person should be able to formulate a tentative position.
The staff person should then check the ADI to search for information on related topics-the word
search function is particularly useful for this purpose, The preamble for both the proposed
and promulgated rulemaking should be read to determine if EPA has clarified its intent with
respect to the provision in question. The Background Information Document (BID) should also
be reviewed to see how EPA characterized the affected facility or source. Sometimes there are
inspection manuals or enabling documents for the subpart which may also be relevant.
This background information (preamble, BIDS, etc.) may help clarify the Agency's intent where
the regulatory language does not directly address the question. However, it is the regulatory
language by which sources must abide.
3. Consult
After completing the basic research, the staff person is ready to formulate a draft position and
consult with the appropriate EPA offices and management. It is important that the research be
completed before the consultations so as to make the best use of the other office's time, and to
allow the staff person to leam the regulations first hand. Consultations are best done orally
initially to alert the reviewer to the issue and necessary time frame, and then via a draft memo.
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Section 8: Steps in Developing Applicability Determinations, continued
4. Prepare the Draft
After receiving preliminary input from other offices, the staff person should draft the
memorandum or letter, clearly laying out the question, the answer, and the rationale (see
Section 9, "Drafting Points"). The draft must be circulated for review, continuing the
consultations. Drafts should be clearly labeled as such, with a header or footer stating,
"NOT FOR EXTERNAL DISTRIBUTION" and
"DRAFT" or "DRAFT POSITION FOR EPA REVIEW".
5. Resolve Issues
If a potential inconsistency or differing of opinions in EPA's implementation or interpretation of
a provision is identified, that issue should be flagged for management and reviewers. For
applicability questions where management has differing opinions, OAQPS and OECA have
established an issue resolution' forum to expedite the decision-making process (contacts provided
in Attachment 6). Any seemingly inconsistent determinations that have already been issued
should be raised to OECA/OC for clarification and resolution. OC staff may need to post a note'
in the comment field of the ADI to explain any apparent or actual discrepancy presented by a
determination. Any such notes should undergo review by AED, the air lead in OC, and the
affected Regional Office.
6. Issue Determination
After incorporating comments and resolving with management how to proceed if conflicting
positions are presented, the determination should be issued and signed by a person to whom the
authority has been delegated. Signature by the person to whom the authority has been delegated
becomes critical should the Agency be challenged on the substance and validity of a
determination. Carbon copies should be sent to all reviewers.
7 Post on ADI
The EPA staff contact for the determination is responsible for posting the memorandum on
the ADI. This entails summarizing the determination, and electronically sending the abstract,
the determination, and a header (listing the name of the person who signed the memo, the date
issued, the subject, the affected subpart, and any relevant regulatory citations) to the EPA
49
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Section 8: Steps in Developing Applicability Determinations, continued
contractor for posting on the ADI. Headers, abstracts, and determinations should be converted to
three separate ASCII files, and named according to the procedures in Attachment 4, "ADI Update
Procedures." The ADI is updated quarterly; however, memoranda with their headers and
abstracts should be sent as soon as possible to the contractor, to ensure timely posting of
determinations. The current address for submitting headers, abstracts, and memoranda is:
pqa@pqa.com
The ADI is an invaluable tool for ensuring national consistency, used widely by regulatory
agencies and the public. It is the responsibility of all staff involved in drafting determinations to
ensure that the ADI is complete and current. Questions regarding the ADI can be directed to the
Manufacturing, Energy, and Transportation Division in OC (see contact in Attachment 6).
8. Publication in the Federal Register
Starting in 1999, OC plans to publish notice of the availability of applicability determinations in .
the Federal Register (FR). Publication in the FR provides fair notice to other companies of the
Agency's interpretation, and sets in motion a 60-day period for judicial review.
OC will be performing this function for all EPA Regional Office and Headquarters-issued
applicability determinations, provided the determinations are submitted to the ADI. Current
plans are to publish the ADI headers and abstracts for applicability determinations in the FR, and
to batch publication quarterly. As such, OC will rely on the Regional Offices to perform timely
updates to the ADI. Publication would be limited to applicability determinations as described in
this document, i.e.. case-specific determinations that apply previously promulgated regulations to
a particular set of facts at a particular source.
50
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Section 9
Drafting Points for Applicability Determinations and
Alternative Monitoring Responses
Overview
Applicability determinations and alternative monitoring responses must include enough
information that the question, the answer, and the rationale are all clear from reading the
response alone. The following pointers are provided to help avoid the most common drafting
pitfalls; this is not intended to be a comprehensive list of issues to address.
For applicability questions involving a source where a violation may have occurred, there needs
to be some decision as to whether issuance of an applicability determination is the best course of
action. For example, a source may inquire whether an action they have already taken constituted
construction or modification, If the source is subject to the regulations and has not been meeting
the regulatory requirements, there are obvious enforcement implications. Section 5.1 addresses
how to respond to applicability inquiries in post hoc situations.
Drafting Pointers
• Restate the question. Remember that only EPA's response will be posted on the ADI
and not the incoming question. To make determinations and decisions useful for future
guidance, it is necessary that the question be accurately restated or summarized.
t State the applicable subpart. Reiterate in the response the NSPS or NESHAP subpart
to which-thi source is potentially subject. This helps people find the memo on the ADI,
and provides basic clarity. There is a tendency in testing and monitoring responses to
answer the specific technical question at hand, without indicating which subpart applies.
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Section 9: Drafting Pointers, continued
Specify what is being approved. It is essential to clearly state what are the new
requirements. The reader may not have the same interpretation of the proposed or
approved monitoring as does the author. For example, if the monitoring frequency or
method is changing, reiterate in the approval what is the new frequency or the name of
the method. If the protocol is very lengthy and is being approved in its entirety, attach or
specifically cite the new method.
Say why. State the rationale for the determination, approval, or disapproval, and be more
specific than "based on your submission" or "it is acceptable upon review." Usually the
submission is not attached to the final response, and even if it is, the reader does not
know what arguments in the submission were persuasive or in error. In approving
alternate span values, for example, state why the quality of data is not compromised.
Build the record to support the determination or decision. Cite and summarize
documents which support the determination. If basing the determination on "information
provided by OAQPS," state what information specifically, e,g.. a Background
Information Document, or a specific economic analysis. If concurring with a Region's
recommended interpretation, be specific as to what information within their argument is
particularly compelling.
Cite the appropriate statutory and regulatory provisions, guidance documents, policy
statements, determinations, and interpretations. When referring to a previous
determination, cite at a minimum the date, author, and origin (office) of the
determination. Where preamble language exists that is on point, identify, quote or
paraphrase the Federal Register notice.
Leaving out this background information forces future readers of the determination to
redo the background research, and weakens the determination. If a previous
determination seems to contradict our current determination, explain how the current case
is different; such issues should be brought to the attention of OC.
Read the draff memo and try to find the auestion. the answer, and the rationale.
After drafting the response, re-read the response and see if these three basic questions can
be answered, without relying on the incoming materials.
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Attachments
1 Part 63 Delegable Authority Memorandum
"Delegation'of 40 CFR Part 63 General Provisions Authorities to State and Local
Air Pollution Control Agencies," from John S. Seitz, Director, Office of Air
Quality Planning and Standards, July 10, 1998.
2 Parts 60 and 61 Delegable Authorities Memoranda for NSPS and
NESHAP Applicability Determinations and Alternative Monitoring
3 Selected EPA Delegations of Authority
4 Applicability Determination Index Update Procedures
5 OECA and OAQPS Organizational Charts
6 NSPS and NESHAP General Contacts
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Attachment 1
Part 63 Delegable Authority Memorandum
"Delegation of 40 CFR Part 63 General Provisions Authorities to State and Local Air Pollution
Control Agencies," from John S. Seitz, Director, Office of Air Quality Planning and Standards,
July 10,1998.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
RESEARCH TRIANGLE PARK, NC 27711
^PPO**
MEMORANDUM
JUL
101998
OFFICE OF
AIR QUALITY PLANNING
AND STANDARDS
SUBJECT:
FROM:
TO:
Delegation of 40 CFR Part 63 General Pfavisions Authorities to State and Local
Air Pollution Control Agencies
John S. Seitz, Director
Office of Air Quality PI
See Addressees
This memorandum is to provide guidance to the
discretionary authorities relating to air toxics in 40 CFR
Provisions) to State and Local Air Pollution Control (&L) agencies
subpart E (Approval of State Programs). Under the
has the authority to approve certain changes to, or make decisions
Provisions requirements. Questions have been raised by thi
may make the same discretionary decisions when they ure delegated
EPA Regional Offices on delegation of
I. part 63, subpart A (the General
through 40 CFR part 63,
•visions, the EPA Administrator .
under, specific General
ie Regions about whether S/L agencies
the General Provisions.
authorities
In explaining the straight delegation process
agencies under 40 CFR part 63, subpart E, we did not
delegated to S/L agencies when they seek straight
Although this is briefly discussed in the proposed
Register. August 11,1993, page 42775-42777), the
will fill that gap by clarifying which discretionary
through straight delegation of the General Provisions.
must then specify in delegation agreements or
being delegated to each State. We recommend that
soon as possible. Therefore, this memorandum is
guidance for you to begin implementing the changes
subpart E rulemaking changes any source-specific
the General Provisions, but the guidance in this
future decisions regarding the General Provisionsi' authorities.
To implement these changes, you will need to .<
General Provisions' authorities have and have not
delegated authorities in the past that should no longer
S/L agencies that delegation of these authorities will
foi delegating air toxics provisions to S/L
clarify what discretionary authorities are
delegation of the General Provisions.
Gemral Provisions' preamble (Federal
for incoming proposed subpart E revisions
(fefee^delegated to S/L agencies
At your discretion, the Regional Offices
documents which of the subpart A authorities are
you begin implementing these changes as
intended to explain the changes and provide
now. Neither this memorandum nor the
sions that have already been made under
memorandum should be used as guidance for all
lariry with your S/L agencies which
been delegated. In cases where you may have
>e delegated, you will need to inform your
revoked.
fcte
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2
At this time, we arc also providing clarification of section 63.6(i)(l), "Extension of
Compliance with Emission Standards," General Provisions authority. This section states "(u)ntil
an extension of compliance has been granted by the Administrator (or a State with an approved
permit program) under this paragraph, the owner or operator of an affected source subject to the
requirements of this section shall comply with all applicable requirements of this part." It is our
interpretation that this authority does not require delegation tbrough subpart £ and, instead, is
automatically granted to States as part of their part 70 operating permits program approval
regardless of whether the operating permits program approval is interim or final. Additionally, it
is our interpretation that the State would not need to have been delegated a particular source
category or have issued a part 70 operating permit for a particular source to grant that source a
compliance extension.
We arc also providing clarification of section 63.5(e) and (f), "Approval and Disapproval
of Construction and Reconstruction," General Provisions authority. The Clean Air Act as
amended (1990 Amendments), sections 112(i)(l) and (3) state that the "Administrator (or a State
with a permit program approved under title V)" can determine whether a source will comply with
the standard if constructed properly. It is our interpretation that this authority does not require
delegation through subpart E and, instead, is automatically granted to States as part of their
part 70 operating permits program approval.
-Link to section 112(1): This guidance only addresses the case where the General
Provisions are delegated to an S/L agency through straight delegation under section 112(1)
provisions which were promulgated in 40 CFR part 63, subpart E. Therefore, the guidance
addresses S/L agencies' authority to make source-specific decisions only, not source-category
wide decisions. Any S/L agency wishing to make discretionary decisions on a source-category
wide basis under the General Provisions or any other part 63 requirement would need to use the
section 112(1) .delegation process under 40 CFR part 63, subsections 63.92,63.93, or 63.94 to
substitute its own rule or program. When subpart E revisions are promulgated, section 63.97 will
be added to the above MR as a delegation option.
Consistency with Previous Policies: This guidance is intended to be consistent with
previous policies developed for new source performance standards (NSPS) under 40 CFR
part 60,' national emission standards for hazardous air pollutants (NESHAP) under 40 CFR
for example, February 24,1983 Memorandum on Delegation of New Source
Performance Standards Authority to States, from Jack Farmer, Acting Director, Emission
Standards and Engineering Division, OAQPS, to Allyn Davis, Director, Air and Waste
Management Division, Region VI; and March 24,1982 Memorandum on Delegation of
Authority to States: NESHAPS, from Kathleen M. Bennett, Assistant Administrator for Air,
Noise and Radiation to Regional Administrators, Regions I-X.
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3
part 61, and for changes to State implementation plans (SIP's)? Past guidance issued for NSPS
changes has permitted delegation to S/L agencies of all the Administrator's authorities except
those that require Federal nilemaking, or those for which Federal oversight is critical to ensuring
national consistency in the application of standards. Additionally, such delegations were not
intended to give S/L agencies the authority to issue interpretations of Federal law that are
subsequently binding on the Federal Government. Current SIP policy, as reflected in White
Paper Number 2 for Improved Implementation of the Part 70 Operating Permits Program,'
permits S/L agencies to alter SIP requirements so long as the alternative requirements are shown
to be qually stringent and are within a pre-approved protocol (and so long as public review is
provided and EPA approval is obtained). The S/L agencies can show quivalent stringency by
providing substantive criteria in SIPs governing the.implementation of alternative requirements.
We recognize tbat Regions have the prerogative to approve delegation of specific
authorities to some S/L agencies and not to others. Therefore, we encourage Regions to provide
as clearly as possible an explanation of the criteria they have used to approve or disapprove
delegation of a specific authority, and to apply those criteria consistently across their S/L
agencies. Such criteria could include a determination of whether the S/L agency has sufficient
expertise to make such decisions, or a determination that the working relationship between the
Region and the S/L agencies is such that individual decisions could or could not be determined
through consultation on an "as needed" basis. For example, you may want to work more closely
with your S/L agencies on their first decision-making for some authorities, thus gaining
assurance that the S/L agencies can and will make appropriate decisions. We also recommend
that Regions obtain copies of all S/L agencies' alternative determinations for their records;
especially where new issues are addressed.
Delegation of Specific Authorities
The part 63 General Provisions lists 15 specific types of authorities for which the
Administrator may make discretionary decisions on a soujsfidpficific basis. When the General
Provisions are delegated to an S/L agency, such discretion may be appropriately delegated,
provided the stringency of the underlying standard would not be compromised.
We recognize that, in order for Regional Offices to have the authority to delegate some of
the authorities out&d in this memorandum (such as intermediate changes to test methods),
delegation 7-121 must first be revised to delegate these authorities to the Regions. We intend to
make this revision, i.e., to delegation 7-121, as soon as possible. Additionally, the Emission
However, we are expanding our interpretation of previous policy for the applicability
detenninations* discretionary authority.
1 Memorandum from Lydia Wegman, Deputy Director, OAQPS, to Regional Air Division
Directors, March $1996.
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Measurement Centerof the Emissions Monitoring and Analysis Division must receive copies of
any approved intermediate changes to test methods or monitoring. Please note that intermediate
changes to test methods must be demonstrated as equivalent through the procedures set out in
EPA method 301 (see Attachment 1). This information will be used to compile a database of
decisions that will be accessible to the S/L agencies and Regions for reference in making future
decisions. Regions are asked to ensure that initial intermediate changes to testing and monitoring
made in each Region are evaluated. All intermediate test changes and State-issued intermediate
changes to monitoring should be provided via mail or facsimile to:
Chief, Source Characterization Group A
U.S. EPA (MD-19)
Research Triangle Park, NC 27711
Facsimile Telephone Number: (9 19) 54 1-1 039
Changes in monitoring issued by Regional Offices should continue to be posted on the
Applicability Determination Index (ADI). For electronic file transfer procedures for ADI
updates, please contact Belinda Breidenbach in the Office of Compliance at 202-564-7022.
We have divided the General Provisions discretionary authorities into two categories,
based upon the relative significance of each discretionary type of decision: they are those
authorities which can be delegated and those authorities which cannot be delegated. These
categories are delineated below:
Category I. General Provisions That May Be Delegated
In general, we believe that, where possible, authority to make decisions which are not
likely to be nationally significant or to alter the stringency of the underlying standard should be
delegated to S/L agencies. While we understand the need for Federal oversight of S/L agency
decision-making which will ensure that the delegated authorities are being adequately
implemented and enforced, we do not want to impede S/L agencies in running the part 70
operating permit and Federal air toxics programs with oversight that is cumbersome. We
recommend that Regions rely on their existing mechanisms and resources for oversight. During
oversight, if the Region_ determines that the S/L agency had made decisions that decreased the
stringency of the standard, then corrective actions should be taken and the source(s) should be
notified. Withdrawal of the program should be initiated if the corrective actions taken are
insufficient.
The authorities listed in Table 1 may be delegated to S/L agencies, so long as the S/L
agencies have the capability to carry out the Administrator's responsibilities and any decisions
made do not decrease the stringency of the standards. Since you are ultimately responsible for all
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General Provision^ authorities' decision-making made in your Region, I am comfortable with
trusting your judgement about which of the Administrator's discretionary authorities listed here
should be delegated to the S/L agencies in your Region. When the Region delegates any category
I authority to the S/L agency, it could be accomplished either when the General Provisions are
delegated or at the time that each relevant maximum achievable control technology (MACT)
standard is delegated, with the exception of approval ofconstruction and reconstruction (40 CFR
part 63, section 63.5), which should be delegated when the General Provisions are delegated.
There are some category I authorities, such as approval of intermediate alternatives to test
methods, for which you should be notified when decisions are made by your S/L agencies. Also,
you may want to monitor the progress of S/L agencies' decision-making, in addition to updating
your files for compliance and enforcement matters. We have indicated these authorities in
Table 1 with an asterisk. We encourage you to document, in delegation agreements or delegation
rulemaking, the request for notification when decisions are made regarding the indicated
category I authorities.
Category .II. General Provisions That May Not Be Delegated
Authorities listed in this section are those decisions which could result in a change to the,
stringency of the underlying standard, which are likely to be nationally significant, or which may
require a rulemaking and subsequent Federal Register "notice Therefore, these authorities must
be retained by the EPA Regional Office or EPA Headquarters. As a result, the following
authorities in Table 2 may not be delegated to S/L agencies (all references are to sections of 40
CFR part 63, subpart A):
If you have any questions, or would like to discuss this matter further, please contact me
at (919) 541-5608, or Tom Driscoll of my staff at (919) 541-5135.
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Table 1. General Provisions' Authorities that may be Delegated
Section
Section 63.1 .
Section 63.6(e)
Section 63.6(f)
Section 63.6(h)
Sections 63.7(c)(2)(i) and (d)
Section 63.7(e)(2)(i)'
Sections 63.7(e)(2)(ii) and (f)*
Section 63.7(e)(2Xiii)
Sections 63.7(e)(2)(iv) and (h)(2), (3)
Sections 63.8(c)(l) and (e)(l)
Section 63.8(f)*
Section 63.8(1)*
Sections 63.9 and 63.10
Authorities
Applicability Deter&nations
Operation and Maintenance Requirements *
Responsibility for Determining Compliance
Compliance with Non-Opacity Standards •
Responsibility for Determining Compliance
Compliance with Opacity and Visible
Emissions Standards • Responsibility for
Determining Compliance
Approval of Site-Specific Test Plans
Approval of Minor Alternatives to Test
Methods (see Attachment 1)
Approval of Intermediate Alternatives to Test
Methods (see Attachment 1)
Approval of Shorter Sampling Times and
Volumes When Necessitated by Process
Variables or Other Factors
Waiver of Performance Testing
Approval of Site-Specific Performance
Evaluation (monitoring) Test Plans
Approval of Minor Alternatives to
Monitoring (see Attachment 1)
Approval of Intermediate Alternatives to
Monitoring (see Attachment 1)
Approval of Adjustments to Time Periods for
Submitting Reports'
'Regions should be notified when these decisions are made by S/L agencies who have
been delegated authority to make these hinds of decisions.
'Adjustments to the timing that reports are due can be delegated, as mentioned in sections
63.9(i) and 63.10(d) and (e), but not the contents of the reports. For title V sources, semiannual
and annual reports are required by part 70 and nothing herein changes that requirement.
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Table 2. Authorities That May Not Be Delegated
Section
Section 63.6(g)
Section 63.6(h)(9)
Sections 63.7(e)(2)(ii) and (f)
Section 63.8(f)
Section 63.100-1
Authority ,
Approval of Alternative Non-Opacity
Emission Standards
Approval of Alternative Opacity Standard
Approval of Major Alternatives to Test
Methods (see Attachment 1)
Approval of Major Alternatives to Monitoring
(see Attachment 1)
Waiver of Recordkeeoine - all
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ATTACHMENT 1
Intermediate change to monitoring is a modification to federally required monitoring
involving "proven technology" (generally accepted by the scientific community as equivalent or
better) that is applied on a site-specific basis and that may have the potential to decrease the
stringency of the compliance and enforcement measures for the relevant standard. Though site-
specific, an intermediate decrease may set a national precedent for a source category and may
ultimately result in a revision to the federally required monitoring. Examples of intermediate
changes to monitoring include, but are not limited to: (1) use of a continuous emission
monitoring system (CEMS) in lieu of a parameter monitoring approach; (2) changes to quality
control requirements for parameter monitoring; and (3) use of an electronic data reduction system
in lieu of manual data reduction.
Intermediate change to a test method is a within-method modification to a federally
enforceable test method involving "proven technology" (generally accepted by the scientific
community as equivalent or better) that is applied on a site-specific basis and that may have the
potential to decrease the stringency of the associated emission limitation or standard.
Intermediate changes are not approvable if they decrease the stringency of the standard. Though
site-specific, an intermediate change may set a national precedent for a source category and may,
ultimately result in a revision to the federally enforceable test method. In order to be approved,
an intermediate change must be validated according to EPA method 301 (part 63, appendix A) to
demonstrate that it provides equal or improved accuracy and precision. Examples of
intermediate changes to a test method include, but are not limited to: (1) modifications to a test
method's sampling procedure including substitution of sampling equipment that has been
demonstrated for a particular sample matrix and the use of a different impinger absorbing
solution; (2) changes in sample recovery procedures and analytical techniques, such as changes
to sample holding times and use of a different analytical finish with proven capability for the
analyte of interest; and (3) "combining*' a federally-required method with another proven method
for application to processes emitting multiple pollutants. As an example, Region IX and the
CARB have developed a testing protocol to determine whether California chromium
electroplaters needed to "retesf* for the Chromium Electroplating NESHAP. This testing
protocol has been attached (Attachment 2) for your information should you choose to use it.
Again, these examples should only be approved if they do not decrease the stringency of the
monitoring requirement.
Major change to monitoring is a modification to federally required monitoring that uses
unproven technology or procedures or is an entirely new method (sometimes necessary when the
required monitoring is unsuitable). A major change to a test method may be site-specific or may
apply to one or more source categories and will usually set a national precedent. Examples of
major changes to a test method include, but are not limited to: (1) use of a new monitoring
approach developed to apply to a control technology not contemplated in the applicable
regulation; (2) use of a predictive emission monitoring system (PEMS) in place of a required
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Attachment 1 Continued
continuous emission-monitoring system (CEMS); (3) use of alternative calibration procedures
that do not involve calibration gases or test cells; (4) use of an analytical technology that differs
from that specified by a performance specification; and (5) use of alternative averaging times for
reporting purposes.
Major change to a test method is a modification to a federally enforceable test method
that uses unproven technology or procedures or is an entirely new method (sometimes necessary
when the required test method is unsuitable). A major change to a test method may be site-
specific or may apply to one or more source categories and will usually set a national precedent.
In order to be approved, a major change must be validated according to EPA method 301
(part 63, appendix A). Examples of major changes to a test method include, but are not limited
to: (1) use of an unproven analytical finish, (2) use of a method developed to fill a test method
gap; (3) use of a new test method developed to apply to a control technology not contemplated in
the applicable regulation; and (4) "combining" two or more sampling/analytical methods (at least
one unproven) into one for application to processes
Minor change to monitoring is a modification to federally required monitoring that
(a) does not decrease the stringency of the compliance and enforcement measures for the relevant
standard; (b) has no national significance (e.g., does not affect implementation of the applicable
regulation for other affected sources, does not set a national precedent, and individually does not
result in a revision to the monitoring requirements); and (c) is site-specific, made to reflect or
accommodate the operational characteristics, physical constraints, or safety concerns of an
affected source. Examples of minor changes to monitoring include, but are not limited to:
(1) modifications to a sampling procedure, such as use of an improved sample conditioning
system to reduce maintenance requirements; (2) increased monitoring frequency; and
(3) modification of the enviromuental shelter to moderate temperature fluctuation and thus
protect the analytical instrumentation.
Minor change to a test method is a modification to a federally enforceable test method
that (a) does not decrease the stringency of the emission limitation or standard; (b) has no
national significance (e.g., does not affect implementation of the applicable regulation for other
affected sources, does not set a national precedent, and individually does not result in a revision
to the test method); apj^(c) is site-specific, made to reflect or accommodate the operational
characteristics, physical constraints, or safety concerns of an affected source. Examples of minor
changes to a test procedure, such as a modified sampling traverse or location to avoid
interference from an obstruction in the stack, increasing the sampling time or volume, use of
additional impingers for a high moisture situation, accepting particulate emission results for a
test run that was conducted with a lower than specified temperature, substitution of a material in
the sampling train that has been demonstrated to be more inert for the sample matrix, and
changes in recovery and analytical techniques such as a change in quality control/quality
assurance requirements needed to adjust for analysis of a certain sample matrix.
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NOTE: The authority to approve decreases in sampling times and volumes when
necessitated by process variables has typically been delegated in conjunction with the
minor changes to test methods, but these types of changes are not included within the scope
of minor changes.
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Attachment 2
Parts 60 and 6 1 Delegable Authorities Memoranda for NSPS and NESHAP
Applicability Determinations and Alternative Monitoring
"Delegation of Authority to States: NESHAPS" from Kathleen M. Bennett,
Assistant 'Administrator for Air, Noise and Radiation, March 24, 1982.
"Delegation of New Source Performance. Standards Authority to States" from Jack R. Farmer;
Acting Director, Emission Standards and Engineering Division, February 24, 1983.
"Delegation of NESHAP Authority to State /Local Agencies" from Jack R. Farmer,
Director, Emission Standards and Engineering Division, December 17, 1984.
"Delegation of NSPS and NESHAP Authority to State/Local Agencies" from Jack R. Farmer,
Director, Emission Standards and Engineering Division, September 11, 1986.
"New Section for all NSPS and NESHAP Regulations: Delegation of Authority"
from Jack R. Farmer, Director, Emission Standards and Engineering Division,
November 12, 1986.
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PN 112-82-03-24-002
UNITED STATES ENVIRONMENTAL PROTECTION AOINCY
WASHINGTON, D.C, 204«0
24 1962
QPPIOfOfi
AIR. NOrtB AND flA&lAT»OW
MEMORANDUM
SUBJBCTi Delegation of Authority to Statess NESSAFS
FROM* Kathleen M. Bennett
Assistant Administrator for Air, Noise and Radiation
TO: Regional Administrators, Regions I - X
Several Regional offices have reraested guidance on issuing
an •automatic" delegation to States o t the authority to implement
the NESHAP program* There has also been a request for quidance
on delegation of the authority to grant waivers of compliance with
HESHAPS*
AS discussed in my guidance document of December 29r 1991,
for the Administrator's Accountability System,
the Agency should be as flexible as possible
in the determination o f when a State prograa
is adequate and delegation should be aad«.
The appropriate attifude toward Statt and lo
agencies is to presume both capability and
proper intention, if at all possible.
In order to promote the delegation of the NESHAP program (am well
as the NSPS program), an • automatic" delegation to the States
should be pursued. Automatic delegation would not only provide
States with the implementing authority for current standards under
the NESHAP program, but would also provide the authority for
future standards a 8 they are published in the federal Re sister.
Again citing the guidance document,
regional offices should foster this approach
by consulting with appropriate Stateof ficials
and attempt to resolve any legal issuer which
may inhibit this approach in some fitatet*
With regard to delegating the authority to grant waivers of
compliance with KBSHAPS, the Agency bar now concluded that this
authority could be incorporated into the • G^+OtXIfyG delegation of
the NESHAP program Original 1 y the Agency had retained th«
authority to grant waivers to insutt consistent application of the
standards while the States were familiarizing theaselves with this
program, Because there was never any legal restriction preventing
112
2-1
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tht dtlagatlon of thla authority, tht Agtney has now dtttrnintd
that tht Statta. 2£2>MTt • dvanood in thtlr gtntralitndtratandinf if
tht profr&m and that thty cafl • fflteomrthia additional
rtiponalblHty* ffhtrtfort, tht ourrtnt policy with rtaptct to
delegation of V &hotit to grant w«iv«rt of compliance la to
include thia function Jntha • mutomltioa d«lag«tionof tha ME8HAP
program,
A8 a clarification, it •hould benotadtAat //flaourc«g art
currtntly tligiblt for waivara of oonplianet and would not bt
caught in thr inttrin during my tranafar of authority to Itatav
to grant waivtri. Tha walvtr pttiod of two y«»r« fron tbr
tfltotiv* datt Of any praaant MISHAP atandard haa «lvaady axpirad.
Thtrtfort, tht natd to iaaut waivtri to txiating loureti will not
ariat until ntw itandacdt att promulg*ttd undtr tht MI8BAP
If you havt any qutttiona oonctrnirn the dtltgation at
authority to st«t*c for tht NBfHAJ or NIPS programa, you ahould
112
2-2
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*' •••.'• \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
^ """ o Office of Air Quality Planning and Standards
T Research Triangle Park, North Carolina 27711
February 24, 1983
SIIJICL" Delegation of let Source Performance Standards-Authority to States
-^~N . I r*^ /
FIOI: Jaci 1. Farmer, Acting
Emission Standards ana F.ngineeer/ig Division
TO: Allyn I. Davis, Director
Mr and iaste Management Division, legion VI
Foor iovember 23, 19X2, nenorandoi to Ir. Don I. Goodrin (copy
attacbed) requested guidance on rbicb of tie Administrator's discretionary
antborities under 40 CF1 Fart 60 can be delegated to the States, lou
identified 57 specific paragraphs rnicn contain provisions tnat require
tne Jldiinistrator's approval. ie nave developed guidance on tne aBtnori-
ties JOB identified pins several otner aotnorities not specifically
mentioned in joar request.
Our g«idance penits delegation to a State of all tne Administrator's
authorities under Fart 60 except for anj rnicn require rnleialing in tne
federal Icgistcr to implenent or fliere Federal overviet is tne onlj MJ
to ensure national consistency in tne application of standards. Tne divi-
sion of State/£Fjl aitnoritj snonld be based on tbe principle of respecting
tne tecbnical judgment of tbe State ritb EPA's role being primarily one
of monitoring and evaluating overall program performance and providing
assistance rben necessary. Implementation decisions generally sbomld be
nade bj tbe State, rbile tbe Agency sbonld male only tbose decisions tbat
nave tbe potential to alter tbe meaning of tbe standard or result in
divergent application in different areas.
Ibe authorities tbat sbonld not be delegated to tbe States are
listed belor. All other" authorities may be delegated. 0f course, tbe
decision of rbetber or not to delegate antbority under any particular
section rests ritb tbe legiomal Office based om an assessmemt of tbe
State's intentions and its legal and programmatic capability to implement
tbe program. Ibis guidance establishes tbose sections rbicb from a legal
amd policy perspective are able to be delegated.
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2
The decision Making authority that this guidance allows to be delegated
to the States pertains to Minor nodifications to testing and Monitoring
Methods. These authorizations appear in the regulations where the potential
for advancements in test procedures, equipnent, reagents, or analytical
procedures was anticipated. The regulations, consequently, were structured
to allow changes in sanpling and neasureMCMt technology to be incorporated
in an efficient and reasonable Manner. Jhe decision to Make a Minor change
can generally be Made by coMpetent testing and laboratory personnel.
Approval by an enforcement agency is needed to confirm that the change is
ninor in nature and provide a nechanisn to prevent inexperienced testing
and laboratory personnel fron inadvertently Making Major changes to the
Method. Subsequent approval by the Adninistrator is not needed, because
the ninor changes do not affect the precision or accuracy of the Method
and, therefore, are not of national significance. The delegation, however,
should require adequate docuaentation of any changes to testing or Monitoring
Methods so that periodic auditing by EPA can confirn that this discretionary
authority is not being abused.
Authorities ihich May lot Se telegated to States inder Section 111
1. Paragraph 60.8(b)(2) and 60.8(b)(3). In order to ensure unifornity 7
and technical quality in the test Methods used for enforcement of national
standards, the Agency will retain the authority to approve alternative and
equivalent Methods which effectively replace a reference method. This
restriction on delegation does not apply to 60.8(b)(1), which allows for
approval of Minor Modifications to reference Methods on a case-by-case basis.
This authority allows, for example, a field engineer to approve deviations
to Methods that are necessary because of site-specific problems or
circumstances. Requests for approval should be submitted to the Director,
Emission Standards and Engineering Division. A technical review will be
performed and any approved methods or chamges to methods will be proposed
and subsequently promulgated in the federal legister. At such time, the
alternative or equivalent methods become a part of 40 CIS fart 60 and
are available for general use.
Some subparts include general references to the authority in 60.8(b)
to approve alternative or equivalent standards. Examples include, but
arenotnecessarily-1imitedto,paragraphs 60.1Kb),60.274(d), 60.396U) (1),
60.396UM2), and393(c}(l)(i).rAese references are reminders of the
provisions of paragraph 60.8 and are not separate authorities which can
be delegated.
2. General Provisions 60.11 (e), The granting of an alternative
opacity standard requiresasite-specfic opacity limit to be adopted under
40 Cfl tart 60. The Administrator may mot delegate the authority for
rulemaking.
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3
3. Subpart S, 60.195(b). Development of alternative conpliance
testing schedulesfor primary ainninnn plants is done by adopting site-
specific anendnents to Subpart S. Tbis autbority nust be retained bj the
Jdninistrator.
L SubnartDa, 60.45a. Couercial demonstration pen its allot an
alternative emissionstandard for a linited number of utility steam
generators. delegation to tne States is expressly prohibited in tbe
sibpart.
S. Suhparl GG 60.332(a)(3) and 60.335(a)(11). Tiese sections
pertain to approvalofcustomized/actorsffnelnitrogen content and
ambient air conditions, respectively) for use bj gas turbine manufacturers
in assembly-line compliance testing. Since eacb approval potentially
could affect emissions from equipment installed in a noiber of States,
tbe decision laling lost be maintained at tbe Federal level to ensure
national consistency, fotices of approval must be pvblisbed in tbe
federal fcgistcr.
J. fgBivalcncy Jetcrninations, Section lll(h)(3]of Clean Air Act.
Approval of alternativestoany design,eovipnent,rort practice,or
operational standard [e.g., 60114(a)aii(I 60.302(d) (3)] is accomplished
tbroBgb tbe rolenaiing process and is adopted as a cbange to tbe individual
sabpart. Ibis avtbority nay not be delegated to the States.
1. Innnovative Tecbnolopj faivers. Section lll(j) of tAe Clean Air
Act. Innovative technology waiversmast be adopted as site-specific
amendments to tbeindiFidaalsaftpart. Ibe aotboritj to grant-raivers nay
not be delegated. Any applications or questions pertaining to such
waivers should be sent to the Director, Emission Standards and Engineering
Division. ffote tbat responsibility for lll(j) bas been transferred
fron tbe Stationary Source Conpliance Division (SSCD) to tbe Emission
Standards and Engineering Division (ESED).] States nay be delegated the
authority to enforce waiver provisions if the State has been delegated
the authority to enforce flSPS.
3 Applicability Dctcrainations. Tbe Majority of applicability
determinations are expected to be routine in that there would be an
established precedent to follow. Delegations sboold be conditioned to
ensure tbat all interpretations of 40 Cfl fart 60 (including Section 60.5)
are consistent ritb tbose fade by tbe EPA in the past. A compendium of
all historical decisions is prepared by SSCD and distributed to tbe
legional Offices annually with updates nade quarterly. These summaries
should be sent routinely to each State or local agency that has been
-------
4
delegated ISPS authority along with an explanation that these decisions
represent ISFS policy. Any situations not clearly governed by precedent
should be referred to the Regional Office for decision. As in the past,
requests for applicability decisions should be forwarded to the Director,
Stationary Source Compliance Division.
Mtacinent
cc: Air iaste and Management Division Directors,
legions I-F and VIIX
K. Campbell (MD-10)
C. El kins (ANR-443)
leyers (AM 443)
*eici (El 3411
F. Jfemier (MD-10)
/. SaJo (\ 133)
I. Shigehara (MD-19)
«. SteigervaJd (MD-10)
G. falsA (KB 131
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•_• t
mi
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Qialitj Planning aid Staadarrfs
" lesearci Itiasglc fail, lortli Caroliaa 27711
DEC i7 B84
IMIfJIiff
SUBJECT: Delegation of NSHAP Au
fill:
JO:
1 Agencies
Emission Standards and! Engineering M 7. ft Jon (MD-13)
David F. loreianp, Director
Management Division, legion ix
Tbis is in response to your memorandum requesting guidance on rbicb
of tbe jldninistrator's discretionary aotborities under 40 CFI Part 61
can be delegated to State and local agencies (Hereafter referred to as
"States"). Foo identified 121 specific paragraphs tbicb contain provisions
tbat require tne Administrator's approval.
0or guidance pen its delegation to a State of all tne Administrator's
aotnorities under fart 61, except for anj which require rulenaking in tne
federal Icgistcr to inplenent, or tnere Federal overviet is tne onlj way
to ensure national consistency in tne application of standards. Tne division
of State/EPA authority should be based on the principle of respecting tne
tecnnical jodgnent of tne State ritA IPA's role being prinarilj one of
nonitoring and evaluating overall progran perfornance and providing assistance
rben necessary. inplenentation decisions generally sboold be nade by tbe State,
rbile tbe Agency sboold naie onlj tbose decisions tbat bave tbe potential to
alter tbe neaning of tbe standard or result in divergent application in
different areas.
Ibis guidance periits tbe delegation of discretionary aotboritj in tbe
Asbestos standard pertaining to substitutions for certain control requirements
[61.153UW), 61.153(b)(3l, 61.154(b)(l), 61.156(b)(3), 61.156(c)(2)]. Tliese
aotborities were included in the regulation where the need for flexibility
in deternining COdtrol reqoirenents was anticipated, recognizing that these
decisions are nost efficiently-and reasonably nade bj tbe inplenenting agency.
These decisions naj be nade outside tbe authority of Section 112(e) and do
not necessarily require notice and opportunity for public comment. Approval
by the Administrator is not required because the decisions are not of
national significance. Ibe delegation, borever, sboold require adequate
documentation of anj decisions nade wider tbese paragraphs so that periodic
auditing by EPA can confirm tbese discretionary aotborities are not being
abised.
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The guidance also permits delegation of authority to approve Minor
Modifications to testing and monitoring set bods. f,-Mr nodifications pertain
to contingencies that arise in the field and to authorizations that appear
in the regulations where the potential for advancements in test procedures,
equipment, reagents, or analytical procedures was anticipated. The regulations,
consequently, were structured to allow changes in sampling and measurement
technology to be incorporated in an efficient and reasonable Manner. The
decision to Make a Minor change can generally be Made by competent testing
and laboratory personnel. Approval by an enforcement agency is needed to
confirm that the change is Minor in nature and provide a mecbanism to prevent
inexperienced testing and laboratory personnel from inadvertently taking
Major changes to the Method. Subsequent approval by the Administrator is
not needed, because the Minor changes do not affect the precision or accuracy
of the Method and, therefore, are not of national significance. The delegation,
however, should require adequate documentation of any cbanges to testing or
monitoring metnods so that periodic auditing by EPA can confirm that this
discretionary authority is not being abused.
Part 61 stipulates that if reasonable grounds exist to dispute the
results obtained by an equivalent or alternative source test Method, the use
of the reference Method May be required, and the results of the reference
nethqd prevail I61.67(g), 61.70(c), 6l.l4(c)]. This authority May be
delegated since the implementing agency is in the best position to sake
judgments about the reasonableness of test results obtained by alternative
metnods on a specific source. forever, as specified in the guidance
below, the approval or withdrawal of an equivalent or alternative test
Method is done by rulenaking and cannot be delegated.
Paragraphs 61.11 and 61.13, which deal with waivers for compliance
dates and compliance testing, can be delegated if the State's enforcement
and implementation procedures are adequate. Granting of raivers snonld
be in rriting and the States should provide copies of each written waiver
to the Regional Office, fevier of waivers should be part of the annual
audit process.
Paragrapbs61.08(e)(2), (il.l KVl.and 61.13(c) are basically statements
clarifying the Administrator' s antbority and tbe relationship of certain
provisions. States nay rant tbese same statements in tbeir lars, but it
should be made clear that we are not relinquishing our enforcement responsi-
bilities tbroogb tbe delegation process. In tbe final analysis, tbe
Administrator retains concurrent responsibility for tbe enforcement of
tbe Act and any subsequent regulation developed under the Act.
The authorities that nay not be delegated to tbe State are listed
beloi. jlll otber authorities may be delegated. Of course, tbe decision
of rbetber or mot to delegate antbority under any particular section rests with
the Regional Office based on an assessment of tbe State's intentions and its
-------
legal and programmatic capability to implement the program. This guidance
establishes tho^e sections which from a legal and policy perspective are able
to be delegated.
Authorities ihich May lot
-------
4
On June 6, 1984, revisions fere proposed to the General Provisions
of Part 61 (49 F|t 23498). The proposed revisions included so*e section
number chwtys-, '»$d sote sections were expanded. If you have questions
or need additional guidance, please contact John Crenshaw (629-5571 FTS),
cc: Director, Air and Waste Management Division, If eg ions I-YIII.x
I. Jiondi, SSCt (ES 3411
R. Campbell, OAQPS (MD-10)
G. Emison, GAQPS (MD-10)
E. Xeich, SSCt (EN-3411
/. femier, 0.1 (/PS {MD-10}
E. Salo, 0CCUE-132A)
«. SAigeAara, OAQPS/ESED (MD-191
F. Steigervald, 01 OPS (MO-10}
0. Tjler, OA^FS/CFM (MD15)
C. falsA, OAQPS/ESED (MD-13)
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* Office ofAiVQualityPlanningaiidStaiidards
lesearcb Mangle Ferl, lortl Carolina 27711
1 1 SEP 1986
MEMQ1H1W
SMJECT: toleration of fer Source Ferformance Standards (NSPS) and
fational Emission Standards for lazardoBS Air follotants
Authority to State/Local Ajj«fltT*s A
FROM: Jaci 1. Farmer, direct cfe.—J&CcJr* '
Emission Standards and Engirfeep1n9 Division (MD-13)
FO: David F. loreiamp, Director
Air Management Division, legion II
Tbis guidance is in response to yow memorandum requesting direction,
on rnicli of the Mu'nistrator "s discretionary aotnorities under 40 11!
Farts 60 and 61 can be delegated to State and local agencies (Hereafter
referred to as "States'"). As JOB pointed out, re issued delegation
guidance on ISFS on Feborarj 24, 1983 and on V/M1P on December 17, 19X4
(botb leios attacbed). Ibe sobparts about which you asked are tbose tbat
bave been promulgated since tbose tro previous leioranda. In addition,
re are including guidance on tbe revised Fart 61 General Provisions tbat
rere pnblisbed on fovenber 7, 10X5, and on five standards tbat bave been
promulgated since re received jour request (tbree arsenic iESEAP and
revisions to iraft pulp (ill ISFS and aspbalt concrete ISFS).
He are unable to provide guidance on iESEAf Snbparts B, I, J, and I,
'since re do not bave responsibility for radionvclides and radon 222. Flease
direct anj questions to Sbeldon Meyers, Director, Office of ladiation
Frograis (ANR-458c), l.S. Environmental Protection Agency, 401 M Street,
1.1., iasbington, B.C. 20460.
Ibe antborities tbat lay not be delegated to the States are listed
belot. All otber antborities lay be delegated. Ibe criteria for determining
rbicb of tbe-antborities can be delegated to States bas not cbanged since
our previous guidance and so are not reiterated here. If yon bave anj
questions about tbis guidance, please refer to tbe attacbed menos or
contact Jobn Crensbar, FIS 620 5571.
-------
Subpart
vv -- SOCMI Equipment Leaks
ww - - Beverage Can Coating
CCC -- Petroleum Refinery Equipment
Leaks
JJJ -- Petroleum Dry Cleaning
Amthorities
ihich May Vo( be
Delegated to States
60.482-l(c)(2)
60.484
60.496(a)(l)
S0.493(b)(Z)(i)(A)
69.59 2 (c)
60.623
fo restrictions in delegation
of tbe following KtS subparts:
I
la
AAa
tt
u
11
(revised 1/24/86)
(revised 1/2/86)
(revised 5/20/86)
FFF
ME
III
000
m
-------
Authorities
Which May lot be
M-SIAP Sobpart Delegated to States
- General Provisions 61.04(b)
J Benzene Equipment Leaks 61.112(c)
I -- Arsenic, Ciass Manufacturing 61.164(a) (2)
61.164(a)(3)
0 -- Arsenic, Low Arsenic Feedstock 61.172(b) (2) (i 1 ) (B)
Copper Smellers 61.172(b) (2) (1 1 ) (C)
61.174(a)(2)
61.174(a) (3)
1 -- Arsenic, High Arsenic Feedstock fo restrictions
Copper Smelters
F - - Equi pment Leats 61.242-l(c) (2)
61.244
Four suggestion to provide delegation guidance along with each final
rule is a good erne. In the future, we will add a paragraph entitled
"Delegation of Authority" to each ISPS and XESHAP regulation. That paragraph
will indicate any authorities that may not be delegated to States or local
agencies.
If I can be of further assistance, please do not hestitate to contact
•e.
2 Attachments
cc: Director, Air and taste Management Division, Regions I-YIII.X
Rich Siondi, SSCD (EN-341)
Ron Campbell, DAQPS (MD-10)
Gerald Emison, OAQPS (MD-10)
Ed Rei<% SSCD (EN-341)
FredRenner, 0\QPS (MD-10)
Charlie Carter, OGC (LE-132A)
Earl Salo, OGC (LE-132A)
K.J. Steigerwald, 0\QPS (MD-10)
Darryl Tyler, OAQPS/CPDD (MD-15)
George Valsh, OAQPS/ESED (MD-13)
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of 4ir flialitj Planning and Standards
lesearri Triangle Part, forti Caroiiia 27711
NOV 12 1986
IHfMMMI
SWECT: lew Section for all NSPS^afTthflESHAPJtegulations: Delegation
of jintAority
FIOI: Jaci 1. Farier,, 01 r<
Enission Standards and Engineering Division (MD-13)
10: RobertL. Ajax, Chief, Standards Development Branch>ESE»
Janes V. Crowder, CAief, Industrial Studies IrancA, ESEtt
George i. ialsh, Chief, Emission leasnrenent Branch, ESED
Susan I. ijatt, CAief, Chciiials and FetroJeon francA, £S£0
Effective iuediatelj, all ISFS and V/M1P rp»u/aiionv »/// Aave a
ner section entitled, "Belegation of ^HtAoritj." TAe new section will
designate which of the Administrator's discretionary authorities nay be
delegated to the States and which shall be retained Aj /PI. TAe ner
section sAooId Ae added to all regulations nor tinder development or revier.
jit tAis tine, re do not intend to revise tAe existing regulations to add
tAe net section, forever, as existing regulations are reviered or revised,
tAe section should he added then. The new section shall appear as the
last nnmbered section in the regulation. The fornat is contained in
Attachment A.
Background
Section lll(c) and 112(d) of tAe Clean Mr Act prescribe that EPA
nay delegate tO__any State tAe aotAoritj to inpleient and enforce ISfS
and iESMAP. De-legations are negotiated on a case-Aj-case basis Aetreen
EPA Regional Offices and the individual States (sometimes local agencies
also). The transfer of ISFS and \lStt\P authority to a State in no way
precludes EPA from enforcing a standard in Federal court should the State
fail to effectively do so. legional Offices periodically review the
performance of States through program audits.
The policy of EPA has been to encourage delegation of programs to
States to the maximum extent practicable. Most States have accepted
delegation for most of the ISFS and MSEAP. About one-third of the States
-------
have provisions for automatic delegation of new standards as they are
promulgated; but, with the rest, some form of delegation procedure takes
place with each-new standard. In either case, the Regional Offices must
specify to the States which of the Administrator's discretionary authorities
contained within a regulation can be handled by the State and which shall
he retained by EPA. Generally, the authorities for which delegation is
in question are those parts of a regulation that state "the Administrator
may. . ." or "the Administrator shall. , ," In situations lite these, it
is unclear whether or not the regulation is addressing a decision that
truly must be made by EPA.
Regional Offices have repeatedly asked ESEO to provide guidance on
what authorities they can delegate. The problem with this guidance is that
it is provided periodically; covers batches of standards; and, therefore,
is often unavailable at the time of the initial delegation negotiations. ,
Also, since the guidance is in memo form, it can be misplaced or forgotten
easily. For reasons of efficiency and program effectiveness, we have
decided to provide delegation guidance as a part of the standard itself.
Guidance
Attached are the three guidance memos on delegation that have been
sent to the Regional Offices. The memos cover all SSPS and 9ESHAP that
have been promulgated through September 11, 1986, and the General Provisions
to both ISPS and 9ESRAP. FOB should refer to these leios for general
guidance on delegation issues and for past decisions on specific standards.
Please follow these precedents, unless there are overriding factors on a
case-specific basis.
ESEO Guidance Memos Topics
February 24, 1983 ISPS aid Part SO Ceneral
Provisions
December 17, 1984 MSRAP and Part 61 General
Provisions
September 11, 1986 ISPS (promulgated after 2/24/86),
MSMP (proMttlgated after
12/17/84), and Part 61
General Provisions (revised)
The OAQPS policy, as reflected in these memos, permits delegation to
a State of all the Administrator's authorities except for any which
require rulemaking in the Federal Register to implement or where federal
overview is the only way to ensure national consistency in the application
of standards. The division of State/EPA authority should be based on the
principle of respecting the technical judgment of the State. Implementation
decisions generally should be made by the State, while the Agency should
-------
make only those'decisions that have the potential to alter the meaning of
the standard OT result in divergent application in different regions of the
country.
Historically, most of the SSPS and SESHAP authorities have been
delegated, as evidenced by the three guidance memos. Authorities that
have been withheld are those that meet one of the conditions listed-below.
These are not the only conditions under which delegation can be withheld.
Unique circumstances may warrant withholding delegation of certain decisions
and can be considered on a per case basis.
Authorities Which May Sot Be Delegated to States Under Sections 111 and 112
1. Equivalency Determinations.
Approval of alternatives to any design, equipment, work practice, or
operational standard is accomplished through rulemaking and is adopted as
a change to the individual subpart. Rulemaking authority may not be
delegated.
I. Alternative Test Methods.
In order to ensure uniformity and technical quality in the test
methods used for enforcement of national standards, the Agency will retain
the authority to approve alternative methods which effectively replace a
reference Method. Approved methods or changes to methods will be proposed
and subsequently promulgated in the Federal Register. At such time, the
alternative or equivalent methods become a part of 40 CFR Part 60 and are
available for general use.
3. Decisions Where Federal Oversight is Seeded to Ensure National
Consistency.
0 One example is the Gas Turbine SSPS: The approval of customized
factors for use by manufacturers in assembly-line compliance testing.
Since compliance is determined by the manufacturer rather than the user,
the decision can affect emissions in a number of States and, therefore,
has national significance.
0 Another jixample is the Beverage Can SSPS: Approval of alternative
procedures for computing spray booth transfer efficiency (TE). The
science of measuring TE is not well-developed, understood, or documented.
Expertise on TE generally is not available to the States.
4. Any Decision That Requires Rulemakins to Implement.
One example is the Primary Aluminum SSPS: Alternative compliance testing
schedules are adopted by site-specific amendments to the SSPS and, therefore,
may not be delegated.
-------
Coordination -
John Crenshaw is responsible for delegation issues within ESEt. If jot
have any questions about this guidance or about delegation of any specific
authority, please contact John.
4 Attachfents
cc: I. tiondi, SSCD
i. Cafpbeii, o\qrs
C. Carter, 0CC
j. Etison, o\qrs
F. tenner, 0\QPS
E. Salo, 0CC
K. Steigerwald, 0\f)rS
D. Tjler, CPM
-------
ATTACHMENT A
Sew Section for All ISPS and XESHAP Regulations
60 or fil.XXX* Delegation of Authority.
(a) In delegating implementation and enforcement authority to a
State under section lll(c)** of the Act, the authorities contained in
paragraph (b) of this section shall be retained by the Administrator
and not transferred to a State.
(b) Authorities which will not be delegated to States:
60.aaa(c)(2)***
60.aab(b)(l)(a)
etc.
*Last numbered paragraph of the regulation.
"Section 112(d) if MSHAP.
***If there are no authorities that must be withheld, enter ""$ o
restrictions'" here.
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Attachment 3
Selected EPA Delegations of Authority
Delegation 7-127. "Applicability Determinations," dated August 7, 1995,
EPA Delegations Manual.
Delegation 7-121. "Alternative Methods" dated August 7, 1995, EPA Delegations Manual.
Delegation 7- 119. "Performance Test" dated August 7, 1995, EPA Delegations Manual.
"Redelegation of CAA Part 63 MACT General Provisions," from Steven A. Herman,
Assistant Administrator, Office of Enforcement and Compliance Assurance,
August 31, 1995.
-------
DELEGATIONS MANUAL 1200 TN 406
8/7/95
CLEAN AIR ACT PfBI!PMBIfFs QP 1990
7-127. Applirah^lit-Ty Determinations
1 . AUTHORITY . To issue determinations pertaining to
applicability of a source to 40 CPR Parts 60, 61, and 63 and
pursuant to Section Ul(b), HKd), lll(f), lll(h), 112 (d) ,
112 (f) and 112 (h) of the Clean Air Act.
2 . TO WHOM DELEGATED. Regional Administrators and the Assistant
Administrator for Enforcement and Compliance Assurance.
3 . LIMITATIONS . Regional Administrators or their redelegatees
must provide summaries and copies of the applicability
determinations on a quarterly basis to the applicability
determination index.
4. REDpLEGAT^tL AOtHQaEflYQ r i t v may be redelegated to
the Branch Chief level or equivalent.
5. ADDITIONAL REFERENCES.
a. Sections 111 of the Clean Air Act.
b. Sections 112 of the Clean Air Act.
c. 40 CPR 60.5 and 61.06.
d. This delegation, Applicability Pe terminations
supersedes Delegation 7-15.
-------
DELEGATIONS MANUAL 1200 TN 406
8/7/95
CLEAN ATR ACT AMENJflffijNTS OP 1990
"•*•• 7-121. Alternative Methods
1. AUTHORITY.
a. To approve or disapprove alternatives to any monitoring
methods required under 40 CFR Pas+v. £Q, 61, or 63 pursuant to
Section lll(f), lll(h), 112 (d), 112 (f) and 112 (h) of the Clean
Air Act .
b. To approve or disapprove alternative test methods,
equivalent methods, alternative standards, or procedures required
under 40 CFR Part 60, 61, or 63 pursuant to Section lll(f),
lll(h) , 112 (d) , 112 (f) and 112 (h) of the Clean Air Act.
2. TO WHOM DELEGATED.
a. Authority la. is delegated to Regional Administrators. -
i.
b. Authority Ib. is delegated to the Assistant "
Administrator of the Office of Air and Radiation. ;
3. REDELEGATIQI^AUTHORITY
a. This authority may be redelegated to the Branch Chief
level or equivalent.
b. This authority is redelegated to the Director of the
Office of Air Quality Planning and Standards, and may be
redelegated to the Branch Chief level or equivalent.
4. ADDITIONAL REFERENCES.
a. 40 CPR 60.8(b) (2) and 40 CFR 60.8(b) (3)
b. 40 CFR 61.13(h) <1) (ii)
c. 40 6*R 63.6(g), 40 CFR 63.7(e) (2) (ii), 40 CFR 63.7{f).
and 40 CFR 63. 8 (f) .
d. Section 111 of the Clean Air Act.
e. Section 112 of the Clean Air Act.
f. This delegation, Alternative^ Methodla . h e
delegation titled Performance Teat supersede delegation 7-14
-------
DELEGATIONS MANUAL 1200 TN 406
8/7/95
CLEAN ATR ACT AMENDMENTS OF 1 QQO
7-119. Performance Test
1. AUTHORITY. To approve the use of a reference method with
minor changes in test methodology, to approve shorter sampling
times and smaller sampling volumes when necessitated by process
variables, to waive the requirement for a performance test
pursuant to Section lll(f), lll(h), 112 (d) , 112(f) and 112 (h) of
the Clean Air Act if the owner or operator of an affected source
has demonstrated by other means that the affected source is in
compliance.
2. %Q WHOM DELEGATED. Regional Administrators.
3. REDELEGATION AUTHORITY. This authority may be redelegated to
the Branch Chief level or equivalent.
4. ADDITIONAL REFERENCES.
a. 40 CPR 63.7(e) (2) (i), 40 CFR 63.7(e) (2) (iii), 40 CFR
63.7(e) (2) (iv), and 63.7(h) .
b. 40 CFR 61.13(h) (1) (i) and, 40 CPR 61.13(h)(l) (iii).
C. 40 CFR 60.8(b) (1), 40 CFR 60.8 (b) (4), and 40 CFR
60.8(b) (5).
d. Section 111 of the Clean Air Act.
e. Section 112 of the Clean Air Act.
f. This delegation, ?erfQrmance_Tjeat. and the delegation
titled Alternative* Methods supersede delegation 7-14.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
_ i OFFICE ff
AU8 * 1995 ENFORCEMENT AND
COMPLIANCE ASSURANCE
MEMORANDUM
SUBJECT: Redelegatiqn o/ CM\Pj«:yj3MACT General Provisions
FROM: Steven A. rart^n7*ttsStant Administrator
^ Office ofyEnforcemsnr apd Compliance Assurance
TO: Addressees
I hereby redelegate the authority delegated to me in
delegations;
7-116 Compliance Extensions , 'l
7-1T3 Construction and Reconstruction, ?,
7-127 Applicability Determinations, and i
7-128 Establishment of Monitoring Parameters to Demonstrate
Compliance
to the Division Directors of the Manufacturing, Energy, and
Transportation Division; chemical, Commercial Services and
Municipal Division; Agriculture and Ecosystems Division; and the
Air Enforcement Division. These authorities are further
redelegated to the branch Chiefs of the Manufacturing Branch,
Energy and Transportation Branch, Chemical Industry Branch,
Commercial Services and Municipal Branch, Agriculture Branch, Air
Toxics, New Source Review and Permits Branch, and SIPs, NSPS,
Acid Rain, and Stratospheric Protection Branch.
Addressees : John B. Rasnic, Director
Manufacturing, Energy, and Transportation Division
^r Elliott Gilberg, Acting Director
~i Chemical, Commercial Services and Municipal
Division
Rick Colbert, Director
Agriculture tnd Ecosystems Division
Kathie Stein Director-
Air Enforcement Division
Mamie R. Miller, Chief
Manufacturing Branch
. PiMtd wHi VtgMiMt Ol B«Md kite on 100% RMycM Ftp* (40% Po*coraumr)
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Attachment 4
Applicability Determination Index Update Procedures
"Format for Submitted Determinations to ADI,"
Manufacturing, Energy, and Transportation Division, January, 1998.
-------
Format for Submitting Determinations to ADI
For each determination, there will be three files: a header information file, an
abstract file, and a file containing the determination letter itself. These files
are submitted electronically for updating of the ADI. This guidance describes
the file types, file nomenclature, descriptions-of the file types, examples, and
information for file transfer.
These three files need to be ASCII Text files. The files can be converted to
this format within the word processing software where they are created. For
example, in Word Perfect for Windows, each file can be converted by
selecting "Save As" from the File menu and then selecting "ASCII (DOS)
Text", within the box labeled "save File as Type:"
File Names
The management of the large amount of data that is being submitted to ADl'
is made easier by requiring that each office use the following scheme for
naming the three files associated with each determination. Each file name
has four parts:
(1) Identify Region or Office with a single character
Use: For:
I Region l-likewise for 2-9
0 Region 10
E EMAD
S ESD
C CCMD
M _ - METD
D - DOE
G OGC
P OPPTS
(2) Identify recipient-use 6 characters or fewer from name of individual or
corporation
(3) identify file type with a single character
Use: F_Q_r:
H Header
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ADI Formats
January, 1998
Page 2
A Abstract
L Letter
(4) Identify category-use a period followed by the three letter abbreviation
Use: Ear.:
.NSP NSPS(Part60)
.NES NESHAP(Part61)
.MAC MACT (Part 63, New NESHAPs)
.CFC CFC regulations
.ASB Asbestos regulations
Header Files
Header Information should include the following items. For any determination'
where certain information is unavailable or irrelevant, that category should be-
left blank. Please have the items in this order:
Date
Region (within Headquarters, use specific office such as METD)
Title (a very brief description of subject of the determination)
Author (EPA official whose name is typed on the signature line)
Recipient
Comments (if the name and number of a contact person is given at the
end of the letter, that information can be included here)
Subpart
Legal Citations
Abstract Files
The Abstract should begin with a question that briefly identifies the type of
facility, device, process, etc. to which the determination pertains, and
summarizes the question the source is asking. The answer should give a
clear answer with a brief explanation of the reason behind the Agency's
response. For complex determinations that cover several distinct issues, it is
helpful to use one question and one answer for each issue. Note that it is not
necessary to indent or tab within the Abstract; each line can be flush with
the left margin.
Letter Files
The Letter file consists of the actual determination that was sent, and should
-------
ADI Formats
January, 1998
Page 3
include anyattachments that were included where the information in the
attachments is not widely available or is not well explained within the
determination letter itself. For example, it would not be necessary to include
a copy of a regulation that was enclosed, but it is important to include a copy
of a previous memo or letter on which the current determination relies
without explaining its contents.
Examples
Examples of Header and Abstract Files with their filenames are given on the
following pages. Please follow the style of the examples such as giving the
Author's last name followed by a comma and the first name, or using the
numerical format for the date. It is not necessary for the file to begin with a
line that gives the filename or a title such as "Header Information" or
"Abstract."
File Transfer
The easiest method of transmitting the determination files is to include all of
the ASCII files into a ZIP file using PKZIP. Then attach the ZIP file to an E-
mail message. Send the E-mail directly to the contractor at
pqa@pqa.com. If you have questions or wish to use another file transfer
method please call Perrin Quarles Associates at (804) 979-3700.
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ADI Formats
January, 1998
Page 4
5INTPAPH. MAC
Date: 02/09/1 995
Region: Region 5
Title: Int. Paper-Batch Vapor Coating Extractor
Author: Varner, Bruce
Recipient: Jayne, Thomas
Comments: contact Bruce Varner 312-886-6763
Subpart: T
Legal citations: 63.461
5INTPAPA. MAC
Q: A batch vapor coating extractor separates polyethylene from paper using,
trichloro-ethylene. Is this extractor subject to subpart T?
A: No. Section 63.461 says a solvent cleaning machine is one that removes"
soils from surfaces. The described activity is not a cleaning operation.
5BASSERH.NES
Date: 04/02/1 991
Region: Region 5
Title: Benzene transfer-exemptions
Author: Kee, David
Recipient: Basser, Shari
CommentSLXontact Spiros Bourgikos 312-886-6862
Subpart: BB I
Legal citations: 61.300, 61.302, 61.305(0
5BASSERA.NES
Q: Is a terminal that handles benzene-laden liquid from a coke by-product
recovery plant exempt from subpart BB?
A: Individual loading racks that handle only exempt liquids, like coke by-
product recovery plant liquid, are exempt. However, if the rack also handles
a non-exempt liquid, the source must keep records and report. In addition, if
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ADI Formats
January, 1998
Page 5
the rack handles more than 1.3 million liters a year of non-exempt liquid, the
emission standards apply. The exemption does not cover other racks at the
terminal.
2HMMH.NSP
Date:
Region: Region 2
Title: custom fuel monitoring schedule
Author: Muszynski, William
Recipient: Lipka, George
Comments: contact Kenneth Eng 212-264-9627
Subpart: GG
Legal citations: 60.332, 60.333, 60.335
2HMMA.NSP
Q: Does Subpart GG allow the use of methods of fuel gas sulfur analysis
other than reference methods?
A: Yes, other methods of documented accuracy are acceptable.
Q: Does using one sample taken each day after all truck deliveries have been
completed satisfy the oil testing requirements of Subpart GG?
A: No, a sample must be taken for each delivery unless the facility obtains
approval for a custom schedule.
Q: Will EPA approve alternate fuel sampling schedules for two gas turbine
engines? I
A: Yes, the specified custom schedules are approved.
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Attachment 5
OECA and OAQPS Organizational Charts
-------
Office of Enforcement and Compliance Assurance
CURRENT
as of 11/19/98
1
1 It
Office of Criminal Enforcement
Forensics and Training
Earl Devaney, Director
Michael Wood, Dtp Din
Legal Counsel ft Resource
Management Division
Jonathan Cole, Director
Kathi Payne, Dep. Dir.
Criminal Investigation
Division
Leo D'Amtco. Director
William Parr, Dep. Dir.
National Enforcement
Investigations Center Div.
Diana Love, Director
Gary Young, Dep. Dir.
National Enforcement
Training Institute
biv&ion
Gerald A. Bryan, DM
Ellen Slouch. Dep. Dir. i
Administration and* Resources
Management support staff
Dennis DeVoc, Director
Laurie Ford, Deputy Dir.
Enforcement Capacity and
Outreach Office
eter Rosenberg, Director (Act
Peter Rosenberg, Assoc. Dir.
Office of
Environmental Justice
Robert J. Knox, Assoc. Dir.
Office of
Regulatory Enforcement
Erii Schaefler. Director
Connie Musgrove, Dep. Dir.
Multimedia
Enforcement Division
Melissa Marshall, Director
MarkPollins,AD.
Water
Enforcement Division
Brian Mais Director
Betsy Devlin, A.D.
Toxics and Pesticides
Enforcement Division
Jesse Baskerville, Director
Ann Pontius, A.D.
Air
Enforcement Division
Rnice Buckheit Director
Richard Biondi, AD
RCRA
Enforcement Division
David Nielsen, Director
Desi A.Crouther, A.D.
Enforcemeni and Compliance
Assurance
Steven A. Herman
Principal Deputy Asst.
DAA/OECA Administrator
Sylvia Michael
Lowrance Slahl
Office of
Compliance
Elaine Stanley, Director
Bruce Weddte, Dep. Dir.
Enforcement Planning,
Targeting & Data Div.
Frederick Stiehl, Director
Anne Lassiler, A.D.
Manufacturing, Energy
A Transportation Div.
John Rasnic, Director
Kenneth Gigliello.AD
Chemical, Commercial
Svcs. ft Municipal Div.
Elliott Girberg, Director
Maureen Lydon, A.D.
Agriculture and
Ecosystems Division
Rick Colbert Director
David Lyons, A.D. (Act)
Federal Facilities I
Enforcement Office 1
Craig Hooks, Pjrwlor 1
James Edward, ASSOC. Dir. I
r
Site Remediation and | Planning* Ft
Enforcement Staff I Compluu
Mary K. Lynch. Dir. iDon Franklii
Office of Planning
and Policy Analysis
Nancy Stoner, Director
John Fogariy, Deputy Dir.
evention ft| <
ice Staff 1
^DirJActjJ
Office of 1 1 Office of h
Site Remediation Enforcement Federal Activities
Barry Breen, Director Richard Sanderson, Diior
SusUI Bromm, Dep. Dir. 1 1 Anne Miller, Dep. Dir. |
Policy and Program
Evaluation Division
Linda Boomazian, Director
Paul Connor. D.D.
Regional Support
Division
Sandra Connors, Director
Debbie Villari, D.D. (Act)
NEPA Compliance
Division
William Dickerson, Director
B. (Catherine Biggs, A.D.
International Enforcement
and Compliance Division
Michael Alushin
Director
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OAQPS
Current
? Office of Air Quality Planning and Standards
"** M* *** us Erivirorimeaital Protection Agency
tfl
IMMEDIATE OFFICE
John Seitz, Director MD-10
Sandy Trippe, Secretary 641-5616
Lydia Wegman, Deputy Director
Sherry Russell, Secretary 541-5504
WASHINGTON OPERATIONS STAFF Mail 6301
Anna Duncan, Director 260-5575
POUCY ANALYSIS AND COMMUNICATIONS STAFF
Jeff Clark, Director 541-5557 MD-10
Henry Thomas Assoc. Dir. - ProgramrOper. pLA RESOURCES & REGIONAL MANAGEMENT STAFF
John Bachmann Associate Direftyr\
Science/Policy & New Programs
leva Spons, Director
541-0882
MD-11
Addresses/Phones:
North Carolina (9*O) 541-5616
OAQPS ( MD-10J
Research Triangle Park, NC 27711
Washington (202) 2604575
OAQPS (6301), 401 Market; SW
Washington, DC 20460
EMISSIONS, MONITORING,
AND ANALYSIS DIVISION
BUI Hurt, Director
DawM MoJMeft AwoclatB
EMISSION STANDARDS
DIVISION
407 QUALITY STRATEGIES
& STANDARDS DIVISION
BUf tit^M'ai rt*> ' *^«iiii% imt^*'» filtiM mt in ir
ora iwnQfl, ASSOCIIIpp MtrBCtOf
r
MD-15
INFORMATION TRANSFER &
PROGRAM INTEGRATION
BobK0«.m, Awocfate Director
' '
4/rOua/rty Trends
Integrated Policy &
Strategies Group
Joe Paisic 541-5628
Operating Permits Group
Steve Hltte 541-5281
Metals Group
AlVervaert 541-5601
Minerals A Inorganic
Chemicals Group
Jim Crowder 541-5422
Integrated Implementation
Group
Karen Blanchard 541-5319
Monitoring & Quality
Assurance Group
Rich Scheffe 541-5651
Ozone Policy & Strategies
Group
Tom Helms 541-5526
Information Management
Group
Ed Lillis 541-5586
Combustion Group
Doug Bell 541-5578
Health Effects & Standards
Group
Karen Martin 541-5688
Air Ooa/fty Modeling Group
JoeTikvart 541-5561
Coatings & Consumer
Products Group
Unda Herring 541-7946
Emission Inventory *
Factors Group
David Misenheimer * 541-0875
Information Transfer
Group
ChetWayland 541-5547
Risk & Exposure
Assessment Group
Dianna Byrne 541-5648
Organic Chemicals Group
Susan Wyatt 541-5673
Source Characterization
MD-19
Bill Umason 541-5582
Education & Outreach
Group MO-7
Howard Wright 541-5455
Ws/b///fy
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Attachment 6
NSPS and NESHAP General Contacts
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General Contacts for Parts 60, 61 & 63 Applicability Determinations
Air Media Contact for OECA/Office of Compliance:
OECA/OC/METD Sally Mitoff 202-564-7012
Belinda Breidenbach 202-564-7022
OECA/Office of Regulatory Enforcement/Air Enforcement Division:
NSPS: James Jackson 202-564-2002
Zofia Kosim 202-564-8733
NESHAP: Charlie Garlow 202-564-1088
Ginny Phillips 202-564-6 139
Office of General Counsel:
NSPS: Diane McConkey 202-260-923 1
Jocelyn deGrandpre 202-260-0330
NESHAP: Patncia Embrey 202-260-7625
(will provide appropriate staff contact)
Lead Region for Enforcement:
Region 3 Bemie Turlinski 215-814-2110
Applicability Determination Index:
OECA/OC/METD Belinda Breidenbach 202-564-7022
Monitoring Contact for NSPS & NESHAP (technical questions)
OAQPS/EMAD Peter Westlin 919-541-1058
MACT Issue Resolution Process (IRP) Larry Brockman 919-541-5398
OAQPS-OECA MACT Implementation Forum
OAQPS/ITPID/PIRG Gil Wood 919-541-5272
OECA/OC Sally Mitoff 202-564-70 12
Unified Air Toxics Website Contact:
OAQPS/FTPJD Nancy Pate 919-54 1-5347
OAQPS/Enaission Standards Division:
Coatings & Consumer Products (CCPG) 919-541-7946
Combustion Group (CG) 919-541-5578
Organic Chemicals Group (OCG) 919-541-5673
Policy, Planning & Standards Group (PPSG) 919-541-5627
Metals Group (MG) 919-541-5601
Mineral & Inorganic Chemicals Group (MICG) 919-541-5422
Waste & Chemical Processes Group (WCPG) 919-541-5671
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