ENCLOSURE 1
GUIDELINE SERIES
OAQPS NO. 1.2-045
GUIDELINES FOR DELETION OF NEW SOURCE
REVIEW AUIHJRITY TO STATE AND LDCAL AGENCIES
IWHJ976
VS. ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina
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TABLE OF CONTENTS
Page
1.0 NEW SOURCE REVIEWS SUBJECT TO DELEGATION 1
1.1 Introduction 1
1.2 Stationary Source Review 2
1.3 Indirect Source Review 3
1.4 Review for Non-Significant Deterioration 4
1.5 Standards of Performance for New Stationary Sources . . 5
1.6 National Emission Standards for Hazardous Air
Pollutants 5
1.7 Authority for Delegation 6
1.8 Consolidation of Guidance 7
2.0 PROCEDURAL REQUIREMENTS 8
3.0 DELEGATION OF AUTHORITY - AGENCIES ACCEPTING 10
3.1 Who May Request Delegation 10
3.2 Degree of Authority Requested ll
3.3 Redelegation 12
4.0 ADEQUACY OF STATE PROCEDURES 13
4.1 Surveillance 14
4.2 Public Notification and Disclosure of Information ... 15
4.3 Reporting Status of Review to EPA 18
4.4 Resources 19
4.5 Identification and Notification of Potential New
Sources 19
4.6 Enforcement Against Non-Complying Sources 19
4.7 Consistency with Federal Regulations 20
5.0 RELATIONSHIP TO STATE STANDARDS 22
6.0 REVOCATION 22
7.0 CONCURRENT FEDERAL AUTHORITY 23
8.0 FEDERAL FACILITIES 23
Appendix A - List of Stationary Sources Which May Be Exempt
From The New Source Review Procedures A-l
Appendix B - Sources Covered By Indirect Source Review B-l
Appendix C - Sources Which Must Apply for Approval to Construct
Under NSD Regulations C-l
Appendix D - New Source Performance Standards - Applicability . . D-l
Appendix E - National Emission Standards for Hazardous Air
Pollutants - Applicability E-l
Appendix F - Check Sheet - Requirements for Delegation of
Authority Requests F-l
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GUIDELINES FOR DELEGATION OF NEW SOURCE REVIEW AUTHORITY
1.0 NEW SOURCE REVIEWS SUBJECT TO DELEGATION
1.1 Introduction
This guide sets forth the procedures for delegation of authority
to States and local agencies to enforce EPA regulations for the
review of new and modified sources. The new source review regulations
subject to delegation include those promulgated to Implement §§ 110,
111 and 112 of the Clean Air Act, as amended.
Section 110 of the Act requires States to submit impleirentation
plans (SIPs) to attain and maintain air quality standards. The control
strategy portions of the SIPs describe how these goals will be reached.
Important portions of this strategy are procedures to review prior to
construction, proposed new sources. Initially, States were re-
quired to develop procedures for stationary source review (SSR) to
ensure that attainment and maintenance of air quality standards would
not be compromised by new source construction and operation or modi-
fication of existing sources, and that all new sources would comply
with the SIP control strategy. Court decisions have resulted in
expanded review requirements to include indirect sources (ISR), and
review for non-significant deterioration (NSD). Where, these "new
source review" procedures have been deficient, EPA has disapproved
that section of the SIPs and promulgated its own regulations.
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In addition to the new source review required for SIPs, the Act,
in SS 111 and 112, required the establishment of New Source Per-
formance Standards (NSPS) and National Emission Standards for
Hazardous Air Pollutants (MESHAPS).
It is EPA's policy to encourage State and local agencies to
develop their own new source review (NSR) regulations equivalent to
EPA's. Delegation of Authority will relieve EPA of the responsibility
of enforcing these regulations, and put enforcement in the hands of
the States where the Clean Air Act intended it to be. In the case of
SIP related new source reviews, EPA is relieved of enforcement respon-
sibility when State regulations equivalent to EPA's are adopted in the
SIP. For NSPS and NESHAPS reviews, the only manner by which EPA can
be relieved of its enforcement responsibility is through delegation.
Therefore delegation is recommended for NSPS and NESHAPS, even though
State standards may be as stringent as EPA's. However, if States and
local agencies are unable to develop equivalent regulations, they
may request delegation of authority to enforce EPA promulgated regulations.
1.2 Stationary Source Review (SSR)
The requirements for these regulations are outlined in 40 CFR
51.18. EPA has promulgated SSR regulations for a few States (or
portions thereof). This review Includes stationary sources which
might cause violation of ambient air quality standards or provisions
of the SIP control strategy. EPA has proposed a list of stationary
sources which may be exempt from new source review procedures in the
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FEDERAL REGISTER (40 FR 28629), July 8, 1975. The list includes
sources from which, in EPA's judgment, the impact of emissions is
not significant enough to require that all States allocate the
manpower and resource expenditures necessary to review them. Appendix
A includes a list of these sources. EPA would approve a regulation
exempting a source not listed in Table 1 only if the State demon-
strated to EPA the negligible impact of such a source.
1.3 Indirect Sources Review (ISR)
These regulations were promulgated by EPA on February 25, 1974
for all States except Florida and the territory of Guam, and amended
July 9, 1974 as 40 CFR 52.22 in response to a court order. Since
this date several other States have submitted approvable plans for the
control of indirect sources. This review covers facilities such as
shopping centers and airports which do not themselves emit pollutants,
but which attract increased motor vehicle activity. On July 3, 1975
(40 FR 28064),-the Administrator suspended Indefinitely those portions
of EPA's indirect source regulation covering parking related facilities.
Indirect source review for highways and airports, which make up the
remaining sources subject to ISR, has not yet been enforced. The
regulations state that these reviews will be based on separate guidance.
The Administrator, in the preamble to the suspension of parking
related reviews, stated that he plans to propose such guidance in the
near future. Appendix B presents a description of sources presently
covered by ISR.
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1.4 Review for Non-Significant Deterioration (NSD)
These regulations were promulgated by EPA December 5, 1974, for
all States and amended June 12, 1975, as 40 CFR 51.21 in response to
a court order. This review covers specific categories for new and
modified sources to determine whether these sources cause a violation
of the appropriate increments of air quality for total suspended
particulate and sulfur dioxide. On September 10, 1975 a new source
category, ferroalloy production facilities, was added. P list of
these source categories is presented in Appendix C. NSD categories
apply to SOg and particulate matter emissions only.
In the NSD regulations, a precondition exists with regard to
reclassification of area designations. A State must have requested
and received delegation of the new source review before a State may
reclassify any area. An exemption from this precondition may be
granted where the State Attorney General has determined (formally
or informally) that they cannot legally accept delegation of authority.
For this case, EPA would delegate the administrative/technical func-
tions described in Section 3.2 herein to the State or local agency
and EPA would implement any necessary enforcement functions. Thus,
if the State assumes neither full nor partial delegation, for
whatever reason, it may not reclassify.
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1.5 Standards of Performance for New Stationary Sources (NSPS)
These regulations were promulgated by EPA on December 23, 1971,
March 8, and October 24, 1974, and August 6, and September 23, 1975,
in 40 CFR 60. This review covers specific categories for new and
modified sources to determine whether these sources meet emission
standards for specified pollutants. Appendix D lists sources
covered under NSPS. Preconstruction review is not required for
NSPS. Compliance with Part 60 is determined solely by testing
sources after they start up within the regulatory time limitation.
It should also be noted that delegations of NSPS authority should
include responsibility for emission and fuel monitoring for sources.
1.6 National Emission Standards for Hazardous Air Pollutants (NESHAPS)
These regulations were promulgated by EPA on April 6, 1973
with additional arendments on May 3, 1974 and October 14, 1975, in
40 CFR 61. This review covers specific categories for new, modified,
and existing sources to determine whether these sources meet emission
standards for specified non-criteria pollutants. Appendix E lists
sources covered under NESHAPS. Authority for this review may be
delegated. However, authority to grant waivers of compliance under
40 CFR 61.10 for existing sources will not be delegated to States or
local agencies. All other regulatory provisions of NESHAPS (except
for alternative test methods) will be delegated to States submitting
an adequate request.
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1.7 Authority to Delegate
General authority to implement and enforce new source review,
may be delegated to States and local agencies pursuant to the following:
a. For SSR, ISR and NSD 40 CFR 52.02(d) provides:
"(d) All approved regulatory provisions of each plan are
incorporated by reference in this part. Regulatory pro-
visions of a plan approved or promulgated by the Administrator
and all permit conditions or permit denials issued pursuant
to approved or promulgated regulations for the review of new
or modified stationary or indirect sources are enforceable
by the Administrator and the State, and by local agencies in
accordance with their assigned responsibilities under the
plan."
b. For NSPS, Section lll(c) of the Clean Air Act, as amended
provides:
"(1) Each State may develop and submit to the Administrator
a procedure for implementing and enforcing standards of
performance for new sources located in such State. If the
Administrator finds the State procedure is adequate, he shall
delegate to such State any authority he has under this Act to
implement and enforce such standards (except with respect to
new sources owned or operated by the United States).
"(2) Nothing in this subsection shall prohibit the Adminis-
trator from enforcing any applicable standard of performance
under this section."
c. For NESHAPS, Section 112(d) of the Act provides:
"(d)(l) Each State may develop and submit to the Administrator
a procedure for implementing and enforcing emission standards
for hazardous air pollutants for stationary sources located
in such State. If the Administrator finds the State procedure
is adequate, he shall delegate to such State any authority
he has under this Act to implement and enforce such standards
(except with respect to stationary sources owned or operated
by the United States).
"(2) Nothing in this subsection shall prohibit the Adminis-
trator from enforcing any applicable emission standard under
this section."
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1.8 Consolidation of Guidance
This guide Incorporates the Office of Enforcement's S-13
guideline entitled "Delegation of Authority to the States - NSPS
and NESHAPS", which was issued in 1973. NSPS and NESHAPS reviews
are required under Section 111 and 112 of the Clean A1r Act, as
amended, and SSR, ISR and NSD reviews are required under Section 110.
New source review requirements and subsequent delegation thereof
vary to some degree. This guideline consolidates all new source
review delegation guidelines in such a way that variations in
different type reviews are minimized. Major differences and their
resolution are listed below.
a. The S-13 guidelines for delegation of authority for NSPS
and NESHAPS restricted delegations to States only. These guidelines
now modify that policy to allow delegation directly to local agencies
if the State does not accept it.
b. The S-13 guidelines required State agencies to request new
delegation of authority each time new standards of performance are
issued. Presently, every time a new source performance standard
Is promulgated, 55 separate delegations are possible. These guide-
lines provide for development of an "automatic" delegation of
authority in such cases to reduce the paperwork involved.
c. The recommended procedure for reporting the status of review
to EPA has been modified to require the information stipulated under
40 CFR 51.7 on a semi-annual basis and to eliminate duplicate reporting,
unless the delegatee's public disclosure procedures are inadequate.
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2.0 PROCEDURAL REQUIREMENTS
The procedures set forth below should be followed by a State
or local agency requesting delegation of authority.
a. The Governor of the State, his designee, or other appro-
priate agency shall submit to the appropriate Regional Administrator
of the Environmental Protection Agency a written request for dele-
gation of authority. The request must describe in reasonable detail:
(1) The administrative/technical and enforcement procedures
(see Section 4) that will be followed in implementing and enforcing
one or more SSR, ISR, NSD, NSPS or NESHAPS,
(2) Identify the State offices or other agencies responsible
for carrying out the procedure(s), and
(3) Demonstrate the adequacy of the procedure(s) with respect
to the criteria set forth in this statement of requirements. A
check-off sheet listing the requirements for delegation of authority
requests is included as Appendix F.
b. The Regional Administrator shall notify the requesting
official in writing whether and to what extent the request has been
approved or disapproved. If the request is disapproved in whole or in
part, the notification shall specify the reasons for such disapproval.
c. If the request is approved in whole or in part, the Regional
Administrator shall delegate to the requesting governmental organization
authority to carry out the provisions of the appropriate Federal regu-
lation. Such delegation is accomplished by and effective upon, the date of
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a written Letter of Delegation. The Letter of Delegation shall
Identify the approved procedure by reference to the request and to
any additional submission by the requesting authority supplementing
or modifying the State procedure and shall specify which portions of
the proposed procedure, 1f any, are disapproved.
d. A delegation of authority shall not authorize implementation
and enforcement of new source review which is different from the
approved procedures Identified in the Letter of Delegation, unless a
revised procedure is submitted by the agency and approved by the
Regional Administrator. Such revision shall be announced through
a second Notice of Delegation and follow-up FEDERAL REGISTER package.
e. A FEDERAL REGISTER package announcing delegation of respon-
sibility to the State or local agency, or other governmental authority
will be prepared by the Regional Office. The delegation goes into
effect upon approval of the Regional Administrator as indicated in
(c) above. This package is for the purpose of giving notice of EPA
delegation and to provide that applications from sources be submitted
to the delegated State or local agency.
f. As additional source categories for NSD, NSPS, or NESHAPS
are promulgated, the requesting agency may submit additional requests
for delegation of authority in accordance with the foregoing pro-
cedure. It is also possible to make this delegation automatic, i.e.,
as each NSD review requirement, NSPS, and NESHAPS is promulgated
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the requesting agency automatically agrees to accept delegation
without the necessity of adopting their own requirements. Thus, if
the State and EPA agree, delegation could be automatic, unless either
party declares otherwise in writing. This agreement would be recog-
nized in the letter from EPA to the requesting agency and in the
subsequent l-EDERAL REGISTER notification. However, in the circumstance
where the State bases their delegation upon either their adoption of
EPA regulations or reference in State Regulations to EPA regulations,
automatic delegation is inappropriate.
3.0 DELEGATION OF AUTHORITY - AGENCIES ACCEPTING
3.1 Who May Request Delegation
EPA desires to delegate authority only to State agencies whenever
possible. Thus, the State air pollution control agency shall be the
first agency contacted by the Regional Office with regard to delegation
of authority. If the State will not accept delegation, the Regional
Office may ask the State to recommend local air pollution control or
other appropriate agencies that might qualify and desire to accept
delegation. If the State presents no recommendations, the Regional
Office has the option to suggest certain agencies and solicit btate
comment on such delegations. If the State disapproves of these
suggestions for delegation of authority, the Regional Office will
consider the btates reasons for not delegating before any final dele-
gation action is Initiated, if the Regional Office delegates authority
directly to a local agency, this delegation is subject to revocation
upon reception of an adequate delegation request from the btate.
Organizations other than air pollution control agencies may be
delegated authority to conduct new source review. However, for NSD
and ISR it
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is EPA policy that such agencies must consult with the appropriate
State or local air pollution control agency prior to making determina-
tions required by new source review. Thus, such agencies must include
in their delegation request, procedures for obtaining comments from
the appropriats air pollution control agency prior to new source
review action. Similarly for NSD and ISR, where the agency desig-
nated does not have continuing responsibility for land use planning,
such agency shall consult with the appropriate State and local land
use planning agency prior to making any determination require by
new source review. These provisions are not required for SSR.
3.2 Degree of Authority Requested
It is EPA's policy to delegate a]]_ new source reviews to States
and local agencies whenever possible. However, EPA will make partial
delegation. In this case, partial may mean any, or all, or the
following:
a. Delegation of authority may be sought for only a portion of
the State.
b. Delegation of authority may be sought for only a portion of
the source categories involved. Specific source categories might be
identified for SSR, ISR, NSD, NSPS or NESHAPS. (Example - only
airports would be reviewed under indirect source requirements or only
a portion of the source categories would be reviewed for NSPS or fISD).
c. Delegation of authority may be made in regard only to the
administrative/technical portion of the review of new sources, with
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EPA providing enforcement should any litigation become necessary. The
administrative/technical portion of the review Includes reception of
the source's request for approval, and evaluation of that request.
The enforcement portion consists of advising the source of the results
of this evaluation, issuance of the appropriate approval/disapproval
action, and initiating any litigation required should the source re-
fuse to accept the evaluation of its request.
d. Delegations may be made for the enforcement portion of the
review with EPA performing the administrative/technical portions.
3.3 Re delegation
Where a State agency requests delegation, it will be the respon-
sibility of that agency to determine if the authority should be
redelegated to local agencies. Prior to redelegating its authority,
the State must obtain approval from the Regional Administrator, unless
the State has received authority to redelegate without further approval.
Such authority may be requested in the original delegation request.
The State must present guidelines which it will use to select local
agencies for redelegation. Such guidelines must include the following
provisions:
a. A requirement that the local agency has the necessary legal
authority (or can use the State's legal authority),
b. A provision to insure that the local agency meets the require-
ments of this guideline, and
c. A requirement that the local agency furnish written indication
that it has agreed to assume the responsibility for the specified new
source review.
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Once redelegatlon authority is granted the State must notify
the RA of any redelegatlon. The Regional Administrator will prepare
the necessary FEDERAL REGISTER address changes. No further notice
of delegation will be necessary.
The State shall be ultimately responsible for effective enforce-
ment of the new source reviews redelegated to local agencies. When-
ever possible, it is desirable to specify such redelegation in the
original delegation request.
4.0 ADEQUACY OF STATE PROCEDURES
Procedures for implementing and enforcing new source review
should be considered adequate and should be approved by the Regional
Administrator if the procedures make adequate provisions for the
following:
1. Surveillance of sources,
2. Public Notice and disclosure of information,
3. Reporting status of review to EPA,
4. Resources,
5. Identification and notification of potential new sources,
6. Enforcement against non-complying sources, and
7. Equivalency with the requirements of 40 CFR Parts 52, 60 and 61
A check-off sheet which summarizes the requirements for delegation of
authority requests is included as Appendix F.
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When requesting delegation for SSR, ISR, NSD and to some extent
for NSPS and NESHAPS, the bulk of the submittal may be reduced by
citing pertinent approved portions of the SIP. The name of the
regulation or procedure, and when it was submitted to EPA (as part
of the original SIP or in a later revision - give dates) must be
noted. If the majority of the SIP was approved, it may be possible
to cite information from the surveillance, public disclosure, resources,
and regulatory portions. If extensive citing of SIP provisions is
included in the request for delegation, the requesting agency may
forward a draft to the Regional Office for review prior to final
submission.
4.1 Surveillance
The procedure must, as a minimum, provide for access to and use
of monitoring, recordkeeping and reporting required by the following
Federal regulations:
a. For SSR - 40 CFR 52, various Subparts thereof. These regu-
lations specify when performance tests must be conducted.
b. For NSPS - 40 CFR 60.7, .8. These regulations require
sources to notify EPA of initial start-up and to maintain a 2 year
record of all excess emissions of any affected facility. These regu-
lations also specify when performance tests must be performed.
c. For NESHAPS - 40 CFR 61.09, 10, 12, 13, and 14. These
regulations require sources to submit the same information as required
for NSPS. Additionally there are provision for waiver of emission tests,
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Required reports and notices from sources will be submitted to
States to which authority has been delegated. The addresses in
the FEDERAL REGISTER will be changed accordingly. In addition, for
NSPS and NESHAPS, an adequate State or local agency procedure must
Include a field investigation system for detecting violations of emission
standards and for conducting or observing source emission tests. For
SSR, NSPS and NESHAPS the source must conduct a performance test after
startup and submit the results of this test to the delegated agency.
The delegated agency must have the capability to monitor these tests.
For SSR, ISR, and NSD States or local agency are encouraged to
provide for field inspection during construction to ensure conformity
with approved plans, although this is not a requirement.
Delegations to States of authority to require monitoring, record-
keeping and reporting by sources and to conduct other forms of survei-
llance under an approved State procedure may, In addition, be considered
to constitute a delegation of authority pursuant to Section 114(b).
4.2 Public Notification and Disclosure of Information
For SSR, ISR, and NSD public participation is required prior to
preconstructlon approval. 40 CFR 51.18(h){4) requires States (or
local agencies) to send EPA a copy of its notice that an application
from a source for new source review is available for public comment.
Procedures for public participation are included in the NSD regulations
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(40 CFR Part 52.21(e)). These same procedures apply for SSR and
ISR review. Essentially, these procedures require a 90-day turn-
around time for processing applications with public notification through
newspapers of general circulation in each region in which the proposed
source would be constructed. The public has 30 days in which to submit
written comments. A public hearing may be scheduled if sensitive issues
are involved. In this case the public notification would include 30
day notice of the public hearing.
For all delegations, emission data must be available to the public
in the air quality control region in the State where the source is
located. Other records, reports, or information collected as a result
of the new source review (except trade secrets) must also be made
available. If the State requests it, delegation of S 114 authority
to implement public disclosure requirements may be granted in
addition to New Source Review (NSR) responsibility in the same
delegation.
For SIP related new source reviews, where State laws containing
confidentiality provisions have clouded the adequacy of a State
plan, EPA has taken one of two approaches. The first was to delegate
S 114 authority to a State in order to cure the inadequacy (e.g.,
Idaho, 40 CFR 52.674). The second was to promulgate corrective
regulations providing for release of emission data by the Regional
Office when such data is not available from the appropriate State or
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local agencies (e.g., as was done for 26 States on November 28, 1975
(40 FR 55326)). These corrective regulations provide that any person
who cannot obtain emission data from the State or local agency respon-
sible for making such data available to the public, may request such
data from the appropriate Regional Administrator.r.
It is not adequate to employ either the Part 52 delegation
of S 114 authority or the promulgated substitute regulations of Part
52 to satisfy similar legal authority required for NSPS and NESHAPS.
These regulations and delegations are specifically aimed at correcting
SIP deficiencies. Because NSPS and NESHAPS are outside the implemen-
tation plan, additional action is necessary to cure such inadequacies
before a delegation may be granted. Either of the following approaches
may be taken.
First, a delegation of S 114 authority as necessary for the S 111
or S 112 delegation may be employed. Although EPA would normally
require that the State formally request delegation, the S 114 delegation
may be concurrent with the NSPS or NESHAPS delegation, and granted
without being preceeded by a formal request, if the State will accept
S 114 delegation as necessary to the S 111 or S 112 delegation.
The second method to cure public disclosure inadequacies is
conditioning the delegation upon a clear cooperative effort between
the State and EPA in releasing information requested by the public.
This method is especially useful where a State refuses to accept a
§ 114 delegation as described above. Sample language for such a
condition is as follows:
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In order to satisfy § 114 of the Clean A1r Act, and 40
CFR 60.-9 (or 61.15, as applicable), in any instance
where the State is unable under its own authority to
release emissions data to the public, the State shall so
notify EPA, so that EPA may take the action necessary to
release such data.
4.3 Reporting Status of Review to EPA
Reporting requirements in 40 CFR 51.7 already require that emissions
be reported for sources which (1) achieve compliance, (2) receive
approval to construct, or (3) begin operations. However, these require-
ments do not apply to NSPS and NESHAPS. Thus, each delegation of NSPS
and NESHAPS should be conditioned to require information required in
40 CFR 51.7. This would include information on NESHAPS and NSPS for
sources which receive approval to construct or begin operations, as
appropriate. Submission of duplicate review requests by the source
will not be required unless the State or local agency has a public
disclosure deficiency in its State Implementation Plan and it has
not been corrected as covered in Section 4.2 of this guideline.
In addition, each delegation should be conditioned to indicate that
the State agency and EPA will develop a system of cornmmication
sufficient to guarantee that each office is always fully informed
regarding current compliance status of subject sources and regarding
interpretation of applicable regulations. Example conditions are
Included in Enclosure 4.
The Regional Office will review the program annually at the
time of prant related program reviews. The Regional Office will
monitor important cases through the newspapers, letters from the
public, and notices of availability of applications for public comment
sent to EPA by States.
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4.4 Resources
The delegation request must include assurance that the delegated
agency has the necessary resources to perform the reviews required
and to take the necessary actions required by the applicable regulations.
Each request must include a description of the resources available
to the requesting agency for enforcement of the required new source
review and assurances that these resources are adequate. Manpower and
money allocations may be submitted in a form similar to that included
in Appendix K of 40 CFR 51. Previous submission of such information
in the SIP pursuant to 40 CFR 51.20 may be cited.
4.5 Identification and Notification of Potential New Sources
The delegation request should demonstrate that the requesting
agency 1s capable of identifying potential new sources to prevent
unapproved construction. "Early warning" mechanisms such as A-95 Reviews
and Environmental Impact Statements should be monitored to identify
potential new sources. Access to information from government agencies
which issue permits for building, sewage, water, and electrical
connections, zoning, etc., is helpful.
4.6 Enforcement Against Non-Complying Sources
If the requesting agency seeks full delegation of the administrative/
technical and enforcement provisions of new source review the procedure
must provide for institution of suits for injunctive relief to
prevent construction for SSR, ISR, NSD, and NESHAPS and to prevent
operation for NSPS. (State or local authority and procedures to
prevent construction for sources subject to NSPS would, of course,
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be acceptable.) The agency should provide for the recovery of
significant fines or penalties in appropriate cases. The agency
must demonstrate that it has the ability to seek injunctive relief
for violations.
It is important that delegation not be delayed due to legal
authority problems. If the agencies cannot accept delegation of
EPA legal authority to enforce the requirement in State courts,
EPA will provide legal support and/or enforcement should any liti-
gation be necessary until such time as the agency can obtain its
own legal authority. Thus, an arrangement can be made with the State
or local agency whereby the administrative/technical portions of the
review would be done locally and EPA would issue the appropriate
construction or operation approval.
Assurances on the part of State agencies that they will attempt
to enforce federal regulations will normally be accepted. Formal
opinions from the State Attorney General regarding such authority are
not necessary.
EPA will remain ready to enforce against violations of its regu-
lations and permit conditions even where enforcement as well as review
is delegated.
4.7 Consistency with Federal regulations
The procedures should not create exceptions or immunities not
created by Federal regulations. Modifications to EPA regulations
are discouraged. The regulations should be implemented as written.
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No variances may be given by a State or local agency for USD, NSPS,
or NESHAPS. For NSPS and NESHAPS, there is no authority or allowance
in the Clean Air Act for such variances by EPA or States. For NSD it
is EPA's position that sufficient flexibility is provided in the
prescribed procedures for reelassification and thus one should not
allow circumvention of such procedures through the granting of
variances. Also, for NSD "Best Available Control Technology" (BACT)
must be determined for each source; thus, States already have flexi-
bility in setting emission limits and do not need variance authority.
For SSR, States or local agencies may give variances for emission
limiting regulations, but such variances shall be treated as SIP
revisions and subject to EPA approval.
EPA will not delegate to the States its authority to issue ad-
ministrative orders nor to initiate civil or criminal actions in Federal
court pursuant to Section 113. Rather, it is presumed that each State
will undertake enforcement actions using its own procedures within
its own State court system.
For NSPS and NESHAPS the procedure must be appropriate for deter-
mining compliance with emission limitations in accordance with the
test methods referred to in 40 CFR 60 and 61 respectively. The
Regional Offices, after consultation with headquarters will handle all
requests from States for approval of alternative test irethods.
For SSR, EPA regulations as specified in 40 CFR 52.12(c) apply
with regard to test methods. S 52.12(c) is quoted as follows:
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For purpose of Federal enforcement, the following test
procedures shall be used:
(1) Sources subject to plan provisions which do not specify
a test procedure and sources subject to provisions promul-
gated by the Administrator will be tested by means of the
appropriate procedures and methods prescribed in Part 60 of
this chapter; unless otherwise specified in this Part.
(2) Sources subject to approved provisions of a plan wherein
a test procedure is specified will be tested by the specified
procedure.
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5.0 RELATIONSHIP TO STATE STANDARDS
When the State or local agency has adopted standards and regu-
lations identical to or more stringent than SSR, ISR, and NSD, EPA
will rescind the delegation of authority and EPA's promulgated regu-
lations.
For NSPS and NESHAPS States and local agencies are advised to
request delegation even if their regulations are equivalent to IJSPS
and NESHAPS in order to become primary enforcers of these require-
ments and to reduce any possible duplication of effort. EPA is
the primary enforcer of NSPS and NESHAPS, until a delegation is made.
Thus, if no delegation is made, EPA has primary responsibility to
enforce the regulation even though States and local agencies may be
enforcing similar ones.
For SSR, ISR, and NSD the same situation does not exist. Under
these regulations EPA enforcement occurs only if the State fails to
do so. These new source reviews are considered State responsibilities
which should be covered under the State Implementation Plans (SIPsJ.
Thus, upon adoption of adequate State SSR, ISR, or NSD procedures,
that portion of the SIP would be approved and the State would assume
the lead in that activity. Further, if the State regulations ade-
quately provide for SSR, ISR and NSD, then EPA would simply with-
draw its disapproval of the States plan, and rescind EPA's regula-
tions and delegation of authority for that State.
6.0 REVOCATION
If the Regional Administrator determines that a State or other
responsible agency's procedure for implementing and enforcing new
22
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source review is inadequate, or is not being effectively carried out,
the authority may be revoked in whole or in part. The revocation shall
be effective as of the time specified in a Notice of Revocation to
the officer who received delegation. Whenever possible, the Regional
Administrator will notify the responsible agency in advance of the
revocation notice that their delegation of authority will be revoked,
and explain what they must do to retain the delegation. The Notice
of Revocation may provide that pending enforcement actions by the
States shall not be affected by the revocation. Notice of any such
revocation shall be published in the FEDERAL REGISTER.
7.0 CONCURRENT FEDERAL AUTHORITY
Pursuant to Sections lll(c)(2) and 112(d)(2) and the provisions
of 40 CFR 52.02(d), EPA retains concurrent authority to enforce EPA
promulgated regulations for new source review following any delegation
of authority to a State or local agency. EPA will only exercise its
concurrent authority, however, when necessary to secure effective
enforcement of new source review. In exercising its concurrent authority,
EPA is not bound by any State or local action or determination in
carrying out delegated authority.
8.0 FEDERAL FACILITIES
In accordance with the Clean Air Act, EPA retains authority to
enforce new source review with respect to sources owned or operated by
the Federal Government. For NSPS and NESHAPS this authority is pre-
sented under Sections m(c)(l) and 112(d)(l). For SSR, ISR and NSD,
this authority is discussed in 40 CFR 52.21(f)(3) and 40 CFR 52.22(14)(11).
23
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APPEiJDIX A - LIST CF STATIONARY SOURCES
WHICH NAY BE EXE"PT FROK THE f!El/ SOURCE REV I El1 PROCEDURES*
1. Maintenance, structural changes or minor repair of process
eauiprent, fuel-burning equipment, control equipment, or incinerators
which do not change capacity of such process equipment, fuel-burning
equipment, control equipment, or Incinerators and which do not Involve
any change 1n the quality, nature, or quantity, of emissions therefrom.
2. Fuel burning units, other than smokehouse generators, which
have a heat Input of not more than 250 million BTUs per hour and burn
only gaseous fuel containing not more than 20 grains HjS per 100
standard cubic feet; have a neat Input of not rrore than 10 million
BTUs per hour and burn oil; or have a heat Input of not more than
350,000 BTUs per hour and burn solid fuel.
3. Stationery internal corrbustion engines with less than 1000
brake horsepower.
4. Bench scale laboratory equipment used exclusively for chemical
or physical analysis or experimentation.
5. Portable brazing, soldering, or welding equipment.
6. The following equipment:
(a) Comfort air conditioners or comfort ventilating systems which
are not designed to remove emissions generated by or released from
specific units or equipment.
(b) Water cooling towers and water cooling ponds unless used for
evaporative cooling of process water, or for evaporative cooling of water
from barometric jets- or barometric condensers or used in conjunction with
an installation requiring a permit to operate.
(c) Equipment used exclusively for steam cleaning.
(d) Grain, metal, plastic or mineral extrusion presses.
(e) Porcelain enameling furnaces or porcelain enameling drying ovens.
(f) Unheated solvent dispensing containers or unheated solvent
rinsing contains of 60 gallons capacity or less.
A-l
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(g) Equipment used for hydraulic of hydrostatic testing.
7. The following equipment or any exhaust system or collector
serving exclusively such equipment:
(a) Blast cleaning equipment using a suspension of abrasive in water.
(b) Bakery ovens where the products are edible and Intended for
human consumption.
(c) Kilns for firing ceramic ware, heated exclusively by gaseous
fuels, singly or in combinations with electricity.
(d) Confection cookers where the products are edible and Intended
for human consumption.
(e) Drop hanrers or hydraulic presses for forging or meta).working.
(f) Die casting machines.
(g) Photographic process equipment through which an Image 1s reproduced
upon material through the use of sensitized radiant energy.
(h) Equipment for drilling, carving, cutting, routing, turning,
sawing, planning, spindle sanding or disc sanding of wood or wood products,
which 1s located within a facility that dess not vent to the outside air.
(1) Equipment for surface preparation of metals by use of aqueous
solutions, except for add solutions.
(J) Equipirent for washing or drying products fabricated from metal
or glass: Provided, that no volatile organic materials are used in the
process and that no oil or solid fuel 1s burned.
(k) Laundry dryers, extractors or tumblers for fabrics cleaned with
only water solutions of bleach or detergents.
(1) Containers, reservoirs, or tanks, used exclusively for electrolytic
plating with, or electrolytic polishing of, or electrolytic stripping cf
the following ratals: Brass, Bronze, Cadmium, Copper, Iron, Lead, Nickel,
Tin, Zinc, Precious Metals.
8. Natural draft hoods or natural draft ventilators.
9. Contains, reservoirs or tanks used exclusively for:
A-2
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(a) Dipping operations for coating objects with oils, waxes, or
greases, where no organic solvents are used.
(b) Dipping operations for applying coatings of natural or synthetic
resins which contain no organic solvents.
(c) Storage of butane, propane or liquified petroleum or natural gas.
(d) Storage of lubricating oils.
(e) Storage of Nos. 1, 2, 4, 5 and 6 fuel oil, non-military jet
angina fuel, and crude petroleum or condensate which 1s stored, processed,
and/o. treated at a drilling and production facility prior to custody
transfer.
(f) Storage of volatile organic conpounds in any stationary tank,
reservoir, or other container of 40,000 gallons or less. Volatile organic
compounds are defined as any compounds containing carbon and hydrogen or
containing carbon and hydrogen in combination with any other element
which has a vapor pressure of 1.5 pounds per square Inch absolute or
greater under actual storage conditions.
10. Gaseous fuel-fired or electrically-heated furnaces for heat
treating glass or metals, the use of which does not Involve molten materials.
11. Crucible furnaces, pot furances or induction furnaces, with a
capacity of 1,000 pounds or less each, unless otherwise noted. In which
no sweating or distilling 1s conducted, nor any fluxing conducted utilizing
chloride, fluoride, or aumonium conpounds, and from which only the following
metals are poured or 1n which only the following metals are held in a
molten state:
(a) Aluminum or any alloy containing over 50 percent aluminum,
provided that no gaseous chlorine compounds, chlorine, aluminum chloride
or aluirlnun fluoride are used.
(b) Magnesium or any alloy containing over 50 percent magnesium.
(c) Lead or any alloy containing over 50 percent lead, in a furnace
with a capacity of 550 pounds or less.
(d) Tin or any alloy containing over 50 percent tin.
(e) Zinc or any alloy containing over 50 percent zinc.
j(f) Copper.
(g) Precious metals.
*Proposed July 8, 1975, 40 FR 28629.
A-3
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APPENDIX B - SOURCES COVERED BY INDIRECT SOURCE REVIEW*
a. In an SMSA
(i) Any new highway section with an anticipated average annual
daily traffic volume of 20,000 of more vehicles per day within ten
years of construction; or
(ii) Any modified highway section which will increase average
annual daily traffic volume by 10,000 or more vehicles per day within
ten years after modification.
b. Anywhere
(i) New airport: 50,000 or more operations per year by regularly
scheduled air carriers, or use by 1,600,000 or more passengers per year.
(Ii) Modified airport: Increase of 50,000 or more operations per
year by regularly scheduled air carriers over the existing volume of
operations, or increase of 1,600,000 or more passengers per year.
*Source: 39 FR 7270, Feb. 25, 1974; 39 FR 25292, July 9, 1974;
40 FR 28064, July 3, 1975.
B-l
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APPENDIX C - SOURCES WHICH MUST APPLY FOR
APPROVAL TO CONSTRUCT UNDER NSD REGULATIONS*
1. Fossil-Fuel Fired Steam Electric Plants of more than 1000 million
B.T.U. per year heat input.
2. Coal Clean Plants.
3. Kraft Pulp Mill Recover Furnaces.
4. Portland Cement Plants.
5. Primary Zinc Smelters.
6. Iron and Steel Mill Metallurgical Furnaces.
7. Primary Aluminum Ore Reduction Plants.
8. Primary Copper Smelters.
9. Municipal Incinerators capable of charging more than 250 tons
of refuse per day.
10. Sulfuric Acid Plants.
11. Petroleum Refineries.
12. Lime Plants.
13. Phosphate Rock Processing Plants.
14. By-Product Coke Oven Batteries.
15. Sulfur Recover Plants.
16. Carbon Black Plants {furnace process).
17. Primary Lead Smelters.
18. Fuel Conversion Plants.
19. Ferroalloy Production Facilities.
*Numbers 1-18: 39 FR 42510, December 5, 1974; Number 19: 40 FR 42011,
September 10, 1975.
C-l
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SOURCE
APPENDIX D - NEW SOURCE PERFORMANCE STANDARDS - APPLICABILITY*
APPLICABILITY
1. Fossil-Fuel Fired Steam Generators
2. Incinerators
3. Portland Cement Plants
4. NitHc Add Plants
7 5. Sulfuric Acid Plants
6. Asphalt Concrete
7. Petroleum Refineries
8. Storage Vessels for Petroleum
Liquids
Greater than 250 x 106 BTU/hr. (S 60.40)
Greater than 45 metric tons per day charging rate. (5 60.50)
K1ln, ClInker cooler, raw mill system, finish mill system,
raw mill dryer, raw material storage, clinker storage, flnisht
product storage, conveyor transfer points, bagging and bulk
loading end unloading systems. (S 60.60)
Any facility producing weak nitric add by either the pressure
or atmosphere pressure process. (S 6C.70)
Any facility producing sulfuric add by the contact process by
burning elemental sulfur, alkylation add, hydrogen sulflde,
organic sulfldes and rr'ercatans, or add sludge, but does not
Include facilities where conversion to sulfuric acid 1s
utilized primarily as a means of preventing emissions to the
atmosphere of sulfur dioxide or other sulfur compounds.
(S 60.80)
Dryers; systems for screening, handling, storing, and weighing
hot aggregate; systems for loading, transferring, and storing
rineral filler; systems for mixing asphalt concrete; and the
loading, transfer, and storage systers associated with
emission control systette. (S 60.90)
a. Fluid catalytic cracking unit catalyst regenerators,
b. Fluid catalytic cracking unit Incinerator - waste
heat boilers,
c. Fuel gas combustion device. (S 60.100)
Storage Capacity greater than 151,412 liters. (S 60.110)
POLLUTANT
PM,-S02,
PM
PH
NO,
S02, Acid M1st
PK
a. PH. CO
b. PM
c. S02
HC
-------
SOURCE
9. Secondary Lead Smelters
10. Secondary Brass and Bronze Ingot
11. Iron and Steel Plants
12. Sewage Treatment Plants
IN THE PHOSPHATE FERTILIZER INDUSTRY:
13. West Process Phosphoric Acid
14. Superphosphorlc Acid Plants
15. D1ammonium Phosphate Plants
16. Triple Superphosphate Plants
17. Granular Triple Superphosphate
Storage Facilities
18. Steel Plents: Electric Arc
Furnaces
19. Coal Preparation Plants
APPLICABILITY
Pot furnaces greater than 250 kg charging capacity; Blast
(cupola) furnaces; and reverberatory furnaces. (S 60.120)
Reverberatory and electric furnaces greater than or equal to
kg production; furnaces greater than or equal to 250 kg/hr
production capacity. (S 60.130)
Basic oxygen process furnace. (§ 60.140)
Incinerator which bums the sludge produced by municipal
sewage treatment facilities. (8 60.150)
Reactors, filters, evaporators and hot wells (S 60.200)
Evaporators, hotwells, acid suinps and cooling tanksks
(§ 60.210)
Reactors, granulators, dryers, coolers, screens and irlTls
(S 60.220)
Mxers, curing belts (dens), reactors, granulators, dryers,
cookers, screens, milts and facilities which store run-of-
pile triple superphosphate (S 60.230)
Storage or curing piles, conveyors, elevators, screens and
mills (S 60.240)
Electric arc furnaces; dust-handling equipment. (S 60.270)
Any facility which prepares coal by: breaking, crushing,
screening, cleaning (both wet and dry rrethods), and drying.
(S 60.250 proposed)
POLLUTANT
PH
PM
PM
PH
F
F
F
F
F
PM
PM
-Numbers 1-12: 36 FR 24877, Decenber 23, 1971; Numbers 13-17: 40 FR 33152, August 6, 1975; Number 18: 40 FR 43850, September 23,
1975; Number 19: proposed 39 FR 37922, October 24, 1974.
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APPENDIX E - NATIONAL EMISSION STANDARDS
FOR HAZARDOUS AIR POLLUTANTS - APPLICABILITY*
POLLUTANT
SOURCES COVERED
Asbestos
1. Asbestos mines
2. Asbestos mills
3. Buildings and structures 1n which the following
operations are conducted or directly from any of
the following operations 1f they are conducted
outside of buildings or structures.
The manufacture of -
(a] cloth, cord, wicks, tubing, or other textile
materials.
(b) cement products
c) fireproofing and Insulating materials
d) friction products
.e) paper, millboard, and felt
!f floor tile
g) paints, coating, caulks, adheslves and sealants
h] plastics and rubber materials
.1) chlorine
Buildings or structures which will be constructed
using asbestos insulating products (S 61.20)
5. Specified demolition and renovation activities
(S61.22(d))
6. Waste disposal sites (S 61.25)
Beryllium
1
Extraction plans, ceramic plants, foundries.
Incinerators and propellant plants which process
beryllium ore, beryllium, beryllium oxide, beryllium
alloys or beryllium-containing wastes. (S 61.30)
2. Machine shops which process beryllium oxides or any
alloy when such alloy, contains more than 5 percent
beryllium by weight. (S 61.30)
3. Rocket motor test sites. (S 61.40)
Mercury
1. Facilities processing ore to recover mercury.
2. Facilities using mercury chlor-alkall cells to
produce chlorine gas and alkali iretal hydroxide.
3. Facilities which incinerate or dry wastewater
treatment plan sludge. (S 61.50)
*38 FR 8626, April 6, 1973 (all sources except asbestos disposal sites);
40 FR 48291, October 14, 1975 (added asbestos waste disposal sites).
E-l
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APPENDIX F - CHECK SHEET - REQUIREMENTS FOR
DELEGATION OF AUTHORITY REQUEST
HEM
REQUIRtMENT
1. Review Authority
Requested
2. Legal Authority
3. Identification and
Notification of Potential
New Sources
4. Surveillance
List Agency requesting delegation.
List review category (e.g., SSR, NSR, ISR, NSPS, NESHAPS)
List source categories subject to review
List geographic area of review
1. Full delegation (administrative/technical and enforce-
ment) - The State must cite its authority to institute
suits to enjoin construction for SSR, ISR, NSD, and
NESHAPS and to enjoin operation for NSPS. The State should
also cite its authority to recover significant fines and
penalties in appropriate cases for all review categories.
2. For delegation of the administrative/technical portion of
the review only, no legal authority is required.
Each request should show procedures for identification of new
sources such as arrangements with other governmental agencies
charged with the issuance of permits for construction, water,
sewage, zoning, etc., to inform the air pollution control
agency of the issuance of such permits, or other procedures
which generate this information. Also procedures for noti-
fication of these potential new sources of permit require-
ments should be included.
Each request must show monitoring, recordkeeping, and
reporting as summarized in Section 4.0 and as required by:
1. SSR:" 40 CFR 52 Subparts B thru ODD (SIP may be cited)
2. NSPS: 40 CFR 60.7-8
3. NESHAPS: 40 CFR 60.09-14.
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ITEM
REQUIREMENT
ro
5. Public Notice and Disclosure
of Information
6. Reporting
7. Federal Standards
8. Resources
9. Pedelegation
10. Agency Coordination
(when agency other than
air pollution control
agency requests delegation)
For SSR, ISR, NSD procedures for public comment prior to
issuance of a permit to construct. For all new source
review, procedures to make available to the public all
emission data, and other records, reports or information
collected. The SIP may be cited.
Procedures for semi-annual reports to the Regional Office
concerning reviews requested and made in accordance with
40 CFR 51.7. For NSPS and NESHAPS delegation must be condi-
tioned to require information for sources which receive
approval to construct or begin operation on a semi-annual
basis. The Regional Office will monitor notices of avail-
ability of applications for public comment sent to EPA by
States.
Procedures should not create exceptions or immunities not
created by Federal regulations for such sources; requests must
show:
1. NSR: Testing methods as approved in SIP, or State must
specify others to be used; compatible with 40 CFR 60.
2. NSPS: Testing methods as in 40 CFR 60 or equivalent.
3. NESHAPS: Testing methods as in 40 CFR 61 or equivalent.
Each request must include assurance that the delegate has
the necessary resources; SIP may be cited.
Notification by the State to the Regional Administrator is
required upon redelegation (assuming State requests and gets
redelegation authority).
For NSD and ISR each delegation request must show procedures
for obtaining comments from State and local air pollution
control agencies prior to making any determination required
by the various new source reviews.
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ENCLOSURE 2 -- EXAMPLE LETTER STATING EPA POLICY ON IMPLEMENTING
FEDERALLY PROMULGATED NEW SOURCE REVIEW REQUIREMENTS
Mr. ___^
D1rector (Name of Agency)
(Address)
Dear :
Pursuant to Section 110(a)(2) of the Clean A1r Act, as
amended, each State air Implementation plan must provide for
review of all new direct (stationary) and certain indirect air pollu-
tion sources to ensure that violations of National Ambient Air
Quality Standards will not occur. This review process has
been expanded to ensure that significant deterioration of
air quality will be prevented. These latest provisions were
enacted when the Environmental Protection Agency (EPA) pro-
mulgated regulations for the Prevention of Significant Air
Quality Deterioration on December 5, 1974.
To date your State has not adopted adequate legally
enforceable procedures for preconstruction review (new source
review; indirect source review; prevention of significant deter-
ioration). Until such rules and regulations are developed
(and approved by EPA) you are encouraged to request delegation of
Federal review authority for your agency. EPA regulation (40 CFR
52.02(d)) provides that provisions of an approved or promulgated
2-1
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implementation plan may be enforced by State and local agencies
in accordance with their assigned responsibilities under the
applicable implementation plan. Under this authority, a State
or local agency may be designated by EPA to carry out the
review.
In addition to the State implementation planning process,
the Clean Air Act, as amended, required establishment of Federal
emission standards for new stationary sources and sources of
hazardous pollutants. Accordingly, the Environmental Protection
Agency promulgated Standards of Performance for New Stationary
Sources on December 23, 1971, March, 8, and October 24, 1974 and August
6, and September 23, 1975 and for National Emission Standards for
Hazardous Air Pollutants on April 6, 1973 with additional amendments on
May 3, 1974 and October 14, 1975. Sections lll(c) and 112(d) of the
Act provide for delegation of authority to a State to implement and
enforce the standards if such State submits an adequate procedure for
doing so.
We are hereby transmitting a statement of "Guidelines for
Delegation of New Source Review Authority to State and Local Agencies."
While a request for delegation of authority is entirely voluntary
on your part, it is the policy of the Environmental Protection Agency
to both encourage and facilitate such requests, to the maximum extent
2-2
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possible since the prevention and control of air pollution is primarily
a State and local responsibility. There are many good reasons why it
is advantageous for NSR programs to be administered at the State and
local level rather than at the Federal level. Some of these are as
follows:
1. No additional burdens are placed on sources in regard to control
costs by virtue of State implementation of NSR programs. The sources
must meet the applicable requirements regardless of whether they are
enforced by Federal or State agents.
2. Having NSR done at the State or local level should be more
convenient for sources since in many cases, the offices of such agency
will be located closer to the offices of the source company than would
be the EPA regional office.
3. The possibility for inconsistent Federal-state actions relative
to a particular case is much reduced if the State takes over the NSR
function.
4. State and local agencies will usually have more complete infor-
mation available on all aspects of a proposed source than would a
remote Federal office and therefore should be able to make a better
over-all decision in the public interest and in accordance with all
applicable state and local laws and regulations.
5. State and local agencies generally administer most of the laws
and regulations applicable to a proposed source, while EPA, when involved
2-3
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in NSR programs would be responsible for the air pollution aspects only.
Thus, state and local agencies should be better able to simplify regu-
latory actions relating to a source and better integrate all actions
than EPA would be.
You should note that under EPA's significant deterioration regu-
lations, States are not allowed to reclassify any area (e.g., from
Class II to Class I or Class III) unless they accept delegation of
the administrative and technical functions of EPA significant deteriora-
tion review regulations. Only if States are legally precluded from
taking enforcement action pursuant to a delegation of authority can
they be exempted from this restriction on reclassifications.
It is particularly important that States or local agencies assume
responsibility for reviewing proposed construction of new sources
of air pollution because these decisions involve land-use considerations
and should reflect State and local policies on growth and local health
and welfare. Accordingly, we urge you to request this delegation. Such
a request may be submitted by your agency. A Governor's request is not
required.
As explained in the enclosure, this delegation can be divided
into two specific areas as follows:
1. Delegation of authority to implement the administrative
portion of the new source review, and
2. Delegation of authority for enforcement actions.
2-4
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Thus, your agency may accept delegation for the first area even though
you are precluded from accepting the second, thereby remaining intimately
involved in the review process. Whenever a State accepts delegation,
it 1s expected that all procedures and requirements specified in the
regulations being delegated will be adhered to.
EPA encourages those States not already having NSR, ISR, and NSD
regulations to adopt such regulations as part of their SIP. This will
allow EPA to rescind Its delegation of authority and, any related
regulations EPA has promulgated and grant approval of the applicable
part of the SIP. Regardless of whether you accept delegation of
authority, or adopt your own regulations, the emission limitations
sources must meet will remain unchanged.
If you have any questions concerning the requirements or need
assistance in preparation of your request for delegation, please feel
free to contact of our (A1r and Hazardous Materials
or Enforcement Division) (phone number).
Sincerely yours,
Regional Administrator
2-5
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ENCLOSURE 3 -- SUGGESTED PROCEDURE FOR DELEGATION OF
AUTHORITY - SSR, ISR, NSD, NSPS, NESHAPS
R. 0. Evaluates
State or Local
Agency Request
R.O. Prepares
1. Delegation
letter.
2. Notification FRN (a)
3. Address Change
FRR (b)
FRN, FRRC
to CPDD/DSSE
information
only
Requesting Agency
Notifies R.O. of
Acceptance of
Delegation. R.O.
Sends FRN, FRR to 0PM
R.O. Sends Delegation
Letter to Requesting
Agency
0PM-MOD
FEDERAL REGISTER
a. FRN - FEDERAL REGISTER Notification - Signed by R.A.
b. FRR - FEDERAL REGISTER Rulemaking (Address Change) - Signed by R.A.
EPA order 1200.3 was revised on September 15, 1975 to allow the R.A. to make
"non-substantive changes" in final rulemaking.
c. Delegation is classified as a "normal" issue with regard to headquarters
staff review when done in accordance with these guidelines.
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ENCLOSURE 4 - EXAMPLE DELEGATION LETTER
(To be tailored to fit specific cases)
CERTIFIED MAIL NO.
RETURN RECEIPT REQUESTEtr
Dear (Authorized Person Requesting Delegation):
This Is In response to your letter of (Date of Formal Request)
requesting delegation of authority for Implementation (and enforce-
ment) of (Stationary Source Review, Indirect Source Review, Non-
significant Deterioration, New Source Performance Standards, and
National Emission Standards for Hazardous A1r Pollutants) to the
(State and/or local agency when applicable).
We have reviewed the pertinent laws of the State of
and the rules and regulations of the (local agency when applicable)
and have determined that they provide an adequate and effective pro-
cedure for implementation (and enforcement) of the (NSR, ISR, NSD,
NSPS and NESHAPS) by the (local agency when applicable) and the State
of . We have reviewed the resources and capabilities
of the State of (and/or the local agency when
applicable). Therefore, we hereby grant delegation of (Stationary
Source Review (SSR), Indirect Source Review (ISR), Non-significant
Deterioration (NSD), New Source Performance Standards (NSPS), and
National Emission Standards for Hazardous Air Pollutants (NESHAPS)
to the (State and/or local agency when applicable) as follows:
4-1
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A. Stationary Source Review (SSR): Authority for all sources
located in the (State name or local agency jurisdiction whatever is
applicable) subject to review of new sources and modifications pro-
mulgated in 40 CFR Part 52 Subparts (Identify applicable State Sections)
of the date of delegation.
B. Indirect Source Review (ISR): Authority for all sources
located in the (State name or local agency jurisdiction whatever
is applicable) subject to review of new or modified indirect
sources promulgated in 40 CFR Part 52.22 as of the date of delegation.
The categories of new sources (should be modeled to fit request)
covered by the delegation include highways and roads, and airports.
C. Review for Non-significant Deterioration (NSD): Authority
for all sources located in the (State name or local agency
jurisdiction whatever is applicable) subject to review for the
prevention of significant air quality deterioration promulgated
in 40 CFR Part 52.21 as of the date of delegation. The 19 categories
of new sources (update as new categories are issued to fit request)
covered by the delegation are fossil-fuel steam electric plants of more
than 1000 million B.T.U. per hour heat input; coal cleaning plans;
kraft pulp mills; portland cement plants; primary zinc smelters; iron
4-2
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and steel mills; primary aluminum ore reduction plants; primary copper
smelters; municipal Incinerators capable of charging more than 250 tons
of refuse per 24 your day; sulfur acid plant; petroleum refineries;
Hme plants; phosphate rock processing plants; by-produce coke oven
batteries; sulfur recovery plants; carbon black plants (furnace process);
primary lead smelters; and fuel conversion plants.
D. New Source Performance Standards (NSPS): Authority for
all sources located in the (State name or local agency jurisdiction
whatever 1s applicable) subject to the standards of performance
for new stationary sources promulgated 1n 40 CFR Part 60 as
of the date of delegation. The categories of new sources
(update as new categories are added to fit request) covered by the
delegation are fossil fuel-fired steam generators; incinerators;
Portland cement plants; nitric acid plants; sulfurlc acid plants;
asphalt concrete plants; petroleum refineries; storage vessels for
petroleum liquids; secondary lead smelters; secondary brass and
bronze ingot production plants; iron and steel plants; and sewage
treatment plants; in the phosphate fertilizer industry; wet process
phosphoric acid plants, superphosphoric acid plants, diammonium
phosphate plants and granular triple superphosphate storage facilities;
and steel plants with electric arc furnaces.
E. National Emission Standards for Hazardous Air Pollutants
(NESHAPS): Authority for all sources located in the (State name
or local agency jurisdiction whatever is applicable) subject to the
4-3
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national emission standards for hazardous air pollutants promulgated
In 40 CFR Part 61 as of the date of delegation. The 3 hazardous air
pollutants covered by the delegation (should be modeled to fit
request) are asbestos; beryllium; and mercury.
[This paragraph or the equivalent Part 52 regulation may be used
to correct inadequacies in State public disclosure regulations for
SSR, ISR, and NSD. For NSPS and NESHAPS, this paragraph or condition
#12 nay be used.] We have also determined that the State of
(or local agency) is qualified to receive a delegation of
authority under 40 CFR 52. , 60.9 and 61.15 (as applicable) to make
emissions data available to the public which is provided to, or other-
wise obtained by, the State pursuant to the review authority delegated
elsewhere within this letter.
[Generally, delegations must be conditioned to correct inadequacies
in the delegatees procedures. A list of example conditions is presented
below for inclusion as appropriate.]
This delegation 1s based upon the following conditions: (These
conditions should be discussed with the requesting agency prior to
Issuance of the delegation letter).
1. Reports will be submitted to EPA by (local agency if applicable)
through the State agency) as specified in *0 CFR 51.7. (For NSPS
and NESHAPS, which are not covered by 40 CFR 51.7) semi-annual
reports will be submitted to EPA by the delegatee (State or local
agency) which include information for sources which receive approval
to construct or begin operations.
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2. The (delegates) and EKA will develop a system of communication
sufficient to guarantee that each office is always fully informed
and current regarding compliance status of the subject sources and
Interpretation of the regulations.
3. Enforcement of the SSR, ISR, NSD, NSPS and NESHAPS in the (local
agency jurisdiction) will be the primary responsibility of the (agency).
If the (local and State agencies) determine that such enforcement
1s not feasible and so notify EHA, or where the (local and State
agencies) act 1n a manner Inconsistent with the terms of this dele-
gation, EPA may exercise its concurrent enforcement authority pur-
suant to Section 113 of the Clean Air Act, as amended, with respect
to sources within the (State name or local agency jurisdiction)
subject to the SSR, ISR, NSD, NSPS and NESHAPS.
4. Future Delegation - Use alternative A or B as follows as applicable:
A Alternative. Acceptance of this delegation of presently pro-
mulgated NSR, ISR, NSD, NSPS and NESHAPS does not commit the State of
(and/or the local agency when applicable) to accept
delegation of future standards and requirements. A new request for
delegation will be required for any standards not Included 1n the State's
Request of (Date of Formal Request).
B Alternative. Acceptance of this delegation of presently pro-
mulgated NSD, NSPS, and NESHAHS constitutes agreement by the btate of
(and/or local agency when applicable) to automatically
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accept delegation of future standards and requirements for NSD, NSPS,
and NESHAPS. No new request for delegation is required for this auto-
matic delegation. This agreement is void upon written notification
by either party.
5. Redelegation - Use alternative A or B as follows as applicable:
A Alternative. Upon approval of the Regional Administrator of
Region , the (title of head, and name of State agency) may subdele-
gate his authority to implement and enforce the SSR, ISR, NSD, NSPS and
NESHAPS to air pollution control authorities in the State when such
authorities have demonstrated that they have equivalent or more stringent
programs in force.
B Alternative. The (State) may subdelegate its authority to imple-
ment and enforce the (SSR, ISR, NSD, NSPS and NESHAPS) to air pollution
control authorities in when such authorities have demon-
strated that they have equivalent or more stringent programs in force.
The State must notify EPA of such redelegation so that the appropriate
address changes may be made in the FEDERAL REGISTER.
6. The delegation to the State of (and the local agency
when applicable) does not include the authority to implement and enforce
SSR, ISR, NSD, NSPS and NESHAPS for sources owned or operated by the
United States which are located in the State. The condition in no way
relieves any Federal facility from meeting the requirements of 40 CFR
Parts 52, 60 and 61 or any state or local regulation.
7. The State of (and the local agency when applicable)
will at no time grant a variance or waiver from compliance with (cite
the appropriate NSD, NSPS and NESHAPS regulations). Should the (State
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and/or local agency) grant such a variance or waiver, EPA will consider
the source receiving such relief to be in violation of the applicable
federal regulation and may initiate enforcement action against the
source pursuant to Section 113 of the Clean A1r Act. The granting of
such relief by the (State or local agency) shall also constitute grounds
for revocation of delegation by EPA. A variance may be granted for
SSR, but such variance must be treated as an SIP revision and be pro-
cessed in accordance with 40 CFR Part 51, including obtaining EPA
approval.
8. Applications for new source review in process at the time of dele-
gation of authority shall be processed through to completion by the
Regional Office. Subsequent enforcement requirements shall be performed
by the delegatee.
9. (Use only if delegation is to other than an APC agency). For SSR,
ISR and NSD, non-air pollution control agencies must consult with appro-
priate State or local air pollution control agencies, prior to making
determinations required by new source review. Records of conments
received and subsequent actions irust be maintained by the delegated
agency and be available for review by EPA.
10. If at any time there is a conflict between a State (or local if
applicable) regulaion and a federal regulation (40 CFR Part 52, 60, or
61), the federal regulation must be applied if it is more stringent
than that of the State (or local 1f applicable). If the State (or local
agency) does not have the authority to enforce the more stringent
federal regulation, this portion of the delegation may be revoked.
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11. For NSPS and NESHAPS the (State or local agency) will utilize
the methods specified 1n 40 CFR Part 60 and 61 In performing source
tests pursuant to the regulations.
12. If the Regional Administrator determines that a State (or local
agency it applicable) procedure for enforcing or implementing the
SSR, ISR, NSD, NSPS or NESHAPS is inadequate, or is not being effectively
carried out, this delegation may be revoked 1n whole or part. Any
such revocation shall be effective as of the date specified in a Notice
of Revocation to the {State agency).
13. (If State public disclosure procedures are inadequate and appropriate
public disclosure authority has not be delegated, the following condi-
tion should be included for NSPS and NESHAPS). In order to satisfy
S 114 of the Clean Air Act, and 40 CFR 60.9, and 61.15 (as applicable),
in any instance where the State is unable under its own authority to
release emissions data to the public, the State shall so notify EPA, so
that EPA may take the action necessary to release such data.
A Notice announcing this delegation will be published in the
FEDERAL REGISTER in the near future. The Notice will state, among
other things, that, effective immediately, all reports required pursuant
to the federal SSR, ISR, NSD, NSPS and NESHAPS by sources located in
the (State or local agency jurisdiction) should be submitted to the
(appropriate agency) Office at (address). Any such reports which have
been or may be received by EPA, Region , will be promtly transmitted
to the (State or local agency).
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Since this delegation 1s effective upon the date of this letter,
there 1s no requirement that the State notify EPA of Us acceptance.
Unless EPA receives from the State written notice of objections with-
in 10 days of the date of receipt of this letter, the State (and local
agency, 1f applicable) will be deemed to have accepted all of the
terms of the delegation.
Sincerely,
Regional Administrator
cc: Local agency or State agency as appropriate
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ENCLOSURE 5 - EXAMPLE NOTICE OF DELEGATION
ENVIRONMENTAL PROTECTION AGENCY
Review of New Sources and Modifications,
Review of New and Modified Indirect Sources,
Prevention of Significant Deterioration,
Standards of Performance for New Stationary Sources and
National Emission Standards for Hazardous A1r Pollutants
[Modify According to Request]
Notice of Delegation of Authority to State of
(or other agency)
On June 18, 1973 (38 FR 15834), pursuant to Section 110 of
the Clean A1r Act, as amended, the Administrator of the Environ-
mental Protection Agency (EPA) promulgated regulations for the
review of new sources and modifications for stationary sources (SSR).
On February 25, 1974 (39 FR 7270), pursuant to Section 110 of the
Clean Air Act, as amended, the Administrator promulgated regulations
for the review of new or modified indirect sources (ISR). On
December 5, 1974 (39 FR 42510), and June 10 (40 FR 25004) and
September 10, 1975 (40 FR 42011), pursuant to Section 110 of the
Clean A1r Act, as amended, the Administrator promulgated regulations
for the prevention of significant air quality deterioration (NSD).
On December 23, 1971 (36 FR 24876) and March 8, 1974 (39 FR 9808),
and August 6, 1974 (39 FR 33152), and September 23, 1975 (40 FR 43850),
pursuant to Section 111 of the Clean Air Act, as amended, the Adminis-
trator promulgated regulations establishing standards of performance
for five categories and seven categories of new stationary sources
(NSPS), respectively. On April 6, 1973 (38 FR 8820) and May 3, 1974
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(39 FR 15396), and October 14, 1975 (40 FR 48291), pursuant to Section
112 of the Clean Air Act, as amended, the Administrator promulgated
national emission standards for three hazardous air pollutants (NESHAPS),
[Expand the F.R. references as more NSRs are added]. Section 301 in
conjunction with Sections 101 and 110 authorizes the Administrator to
delegate his authority to implement and enforce SSR, ISR and NSD to any
State which has submitted adequate implementation and enforcement pro-
cedures. Sections lll(c) and 112(d) direct the Administrator to dele-
gate his authority to implement and enforce NSPS and NESHAPS to any
State which has submitted adequate procedures. Nevertheless, the
Administrator retains concurrent authority to implement and
enforce the standards following delegation of authority to
the State.
On , the Regional Administrator, Region
, EPA, forwarded to the State of information
setting forth the requirements for an adequate procedure for
implementing and enforcing the standards for SSR, ISR, NSD, NSPS
and NESHAPS. On (date of request), the (person requesting
delegation) submitted to the EPA Regional Office a request
for delegation of authority. Included in that request were
procedures for (SSR, ISR, NSD, NSPS and NESHAPS) and information
on available resources to implement such review(s). (For NSPS
and NESHAPS include the following if appropriate: Included in that
request were copies of the State regulations
which incorporate by reference the federal emission
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standards and testing procedures set forth in 40 CFR Parts 60
and 61, with certain exceptions.) Also included were copies of
State statutes which provide the State with the requisite authority
to enforce the Federally promulgated SSR, ISR, NSD, NSPS and NESHAPS.
After a thorough review of that request, the Regional Administrator
has determined that for the source categories set forth in paragraphs
(A), (B), (C), (D), and (E) of the following official letter to the
(person requesting delegation), delegation is appropriate subject to the
conditions set forth in paragraphs through of that letter:
INSERT COPY OF LETTER TO PERSON REQUESTING DELEGATION.
Therefore, pursuant to the authority delegated to him by
the Administrator, the Regional Administrator notified the
(person requesting delegation) on , that authority
to implement and enforce Stationary Source Review (SSR), Indirect
Source Review (ISR), Non-significant Deterioration (NSD), New Source
Performance Standards (NSPS), and National Emission Standards
for Hazardous Air Pollutants (NESHAPS) was delegated to the
State (or local agency) of .
Copies of the request for delegation of authority are
available for public inspection at the Environmental Protection
Agency, Region Office, (address).
Effective imnediately, all reports required pursuant to
the delegated Stationary Source Review (SSR), Indirect Sourth Review
(ISR), Non-significant Deterioration (NSD), New Source Performance
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Standards (NSPS), and National Emission Standards for Hazardous
Air Pollutants (NESHAPS) should not be submitted to the EPA Region
Office but instead should be submitted to the State (or local)
Agency at the following address:
(address)
Applications for new source review in process at the time
of this delegation shall be processed through to completion by the
EPA Region Office.
This Notice is issued under the authority of Sections 110, 111,
112 and 301) as appropriate) of the Clean Air Act, as amended. 42 U.S.C.
1857, 1857c-5, 6, 7 and g.
Date:
Regional Administrator
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ENCLOSURE 6 - EXAMPLE RULEMAKING - ADDRESS CHANGES
(To be modified according to delegation requested)
Title 40 - Protection of Environment
CHAPTER I - ENVIRONMENTAL PROTECTION AGENCY
SUBCHAPTER C - AIR PROGRAMS
DELEGATION OF AUTHORITY - NEW SOURCE REVIEW
Delegation of Authority to the State of (or
local agency)
The amendments below institute certain address changes for
reports and applications required from operators of new sources.
EPA has delegated to authority to review new and
modified sources. The delegated authority includes the reviews
under 40 CFR 52 for new sources and modifications, indirect sources
and the prevention of significant deterioration. It also includes
the review under 40 CFR 60 for the standards of performance for
new stationary sources and review under 40 CFR 61 for national emission
standards for hazardous air pollutants.
A Notice announcing the delegation of authority is/was published
(date) in the FEDERAL REGISTER ( FR ). The amendments now
provide that all reports, requests, applications, submittals, and
communications previously required for the delegated reviews will now
be sent instead to the (name of State or local Agency) instead of
EPA's Region .
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The (RA or Assistant Administrator) finds good cause for fore-
going prior public notice and for making this rulemaking effective imme-
diately in that it is an administrative change and not one of substantive
content. No additional substantive burdens are imposed on the parties
affected. The delegation which is reflected by this administrative
amendment was effective on (the date of delegation), and it serves no
purpose to delay the technical change of this addition of the State
address to the Code of Federal Regulations.
This rulemaking is effective immediately, and is issued under
the authority of Sections 101, 110, 111, 112 and 301 of the Clean
Air Act, as amended 42 U.S.C. 1857, 1857C-5, 6, 7 and 1857g.
Date:
Assistant Administrator for
(responsible Office), or Regional
Administrator when he has received
authority from the Administrator
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PART 52 - APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
Delegation of Authority for Review of New Stationary
Sources and Modifications (SSR), Review of Indirect
Sources (ISR), and Non-Significant Air Quality
Deterioration (NSD) to the State of (or local agency)
Part 52 of Chapter I, Title 40 of the Code of Federal Regula-
tions is amended as follows:
1. S 52.xxx (appropriate designation for SSR found in Subpart
A to ODD. This may involve revising a section previously promulgated
because a State plan for SSR was disapproved, or it may involve adding
a new section to implement the reporting address change) Subpart
(appropriate lettering for State) is amended by adding paragraph ( )
as follows:
S 52.xxx Review of New Sources and Modifications
* * * * *
(b) *** (the paragraphs throughout this sample are chosen as (b)
and (c) for simplicity).
(c) All applications and other information required pursuant
to 52.xxx from sources located in (describe delegated jurisdiction)
shall be submitted to the (appropriate State or local agency address)
instead of the EPA Region Office.
* * * * *
2. In S 52.yyy Subpart (appropriate State designation,
A to DDD) is amended by adding paragraph ( ) as follows:
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S 52.yyy Review of Indirect Sources
* * * * *
(b) ***
(c) All applications and other information required pursuant
to 52.yyy from sources located in (describe delegated jurisdiction)
shall be submitted to the (appropriate State or local agency address)
instead of the EPA Region Office.
* * * * *
3. In § 52.ZZZ Subpart (appropriate State designation,
A to ODD) is amended by adding paragraph ( ) to read as follows:
S 52.zzz Prevention of Significant Air Quality Deterioration
* * * * *
(b) ***
(c) All applications and other information required pursuant to
52.21 from sources located in (describe delegated jurisdiction) shall
be submitted to the (appropriate State or local agency address) in-
stead of the EPA Region Office.
PART 60 - STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES
Delegation of Authority to the State of (or
local agency).
Part 60 of Chapter I, Title 40 of the Code of Federal Regulations
is amended as follows:
4. In S 60.4 paragraph (b) is amended by revising subparagraph
(appropriate lettering for State), to read as follows:
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S 60.4 Address
* * * *
(b) ***
(c) (immediately preceding letter designation) *** (appropriate
lettering designation for State; e.g., Alabama is B, Texas is SS) -
State of , (State Agency), (Address).
* * * *
PART 61 - NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
Delegation of Authority to the State of (or
local agency).
Part 61 of Chapter I, Title 40 of the Code of Federal Regulations
is amended as follows:
5. In S 61.04 paragraph (b) is amended by revising subparagraph
(appropriate letter for State), to read as follows:
§ 61.04 Address
* * * *
(b) ***
(A) - (immediately preceding letter designation) *** (appropriate
letter desgination for State; e.g., Alabama is B, Texas is SS) - State
of , (State Agency), (Address).
This rulemaking is effective immediately, and is issued under the
authority of Sections 110, 111, 112 and 301 (as appropriate) of the
Clean Air Act, as amended. 42 U.S.C. 1857, 1857c-5, 6, 7 and 1857g.
Date:
Assistant Administrator for
(responsible Office), or Regional
Administrator when he has received
authority from the Administrator
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