CLEAN AIR ACT
COMPLIANCE!
ENFORCEMENT POLICY
C OMPENDIUM
1996
Volume 3
B-30 - D1OA

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C 20460
LpqO
- l ’
July 10, 1998
MEMORANDUM
SUBJECT: Second Extenson of January 25, 1995 Potential to Emit
Transition Policy and Clarif - Policy
FROM John S Seitz, Director
Office of Air Quality 10)
Eric V Schaeffer, Director
Office of Regulatory Enforcement (2241 A)
TO See Addressees
Thj cra um f. rther te ;c ?iuLcCtiOIl Agent. y’s (EPA)
January 25, 1995 transition policy for potential to emit (PTE) limits relative to maximum
achievable control technology (MACT) standards issued under section 112 of the Clean Air Act
and federal operating permits issued under Title V programs It also clarifies how the EPA’s
interim policy on PTE, first discussed in a January 22, 1996 memorandum, works with the
transition policy
Background
Many Clean Air Act requirements apply only to “major” sources, that is, those sources
whose actual or potential emissions of air pollution exceed threshold emissions levels specified in
the Act A source’s total potential to emit is determined by a two step process First, the
source’s potential emissions at maximum physical capacity are established This figure is then
reduced by any recognized, practically enforceable limits on the source’s emissions, such as limits
on rates of production, hours of operation, and type and amount of ft el burned or materials
processed The three primary programs where PTE is a significant factor are (1) the section 112
MACT program to control emissions of hazardous air pollutants (HAPs), (2) the TiLle V
operating permits program, and (3) the New Source Review (NSR) programs in Part C of Title I
(the prevention of significant deterioration (PSD) program) and Part D of Title I (the
nonattainment NSR program) These programs each contain a definition of PTE Due to several
court decisions addressing the requirement in EPA’s regulatory definition of PTE under these
programs that any enforceable limits on potential emissions be federally enforceable, these
regulations are currently under review, and the EPA is engaged in a rulemaking process to
consider amendments to the current requirements The EPA has reviewed information provided
Q RecycIed RecyciabIe
Pttntedon p .r Ih,t ntans
at least 75% racycl.d thot

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through a stakeholder process and is preparing a proposed rule presenting several options related
to practical and federal enforceability Further information on options being considered is
contained in January 1996 and November 1997 options papers (available on the Internet at
http://www. epa.gov/ttn/oarpgf .
The Current Transition Policy
In a Januaiy 25, 1995 policy memorandum entitled “Options for Limiting the Potential to
Emit (PTE) of a Stationary Source Under Section 112 and Title V of the Clean Air Act (Act),”
issued before the court decisions regarding the definition of PTE and federal enforceability, the
EPA announced a transition policy for Section 112 and Title V (available on the Internet at
http //www.epa gov/ttnloarpg/tspgm html) This transition policy alleviated concerns that some
sources may face gaps in the ability to acquire federally enforceable PTE limits because of delays
in State adoption or EPA approval of programs or in their implementation In order to ensure
that such gaps would not create adverse consequences for States or for sources, the EPA
provided that during a 2-year period extending from January 1995 to January 1997, for sources
lacking federally enforceable limitations, State and local air regulators had the option of treating
the following types of sources as non-major in their Title V programs and under section 112
(1) sources that maintain adequate records to demonstrate that their actual emissions are
iess thaii 50 pe a .,p icab c aj r urce thr.. rho!d, an.! h ”e nrtiniie:I to npe.rate at
less than 50 percent of the threshold since January 1994, and
(2) sources with actual emissions between 50-100 percent of the threshold, but which
hold State-enforceable limits that are enforceable as a practical matter.
On August 27, 1996, the EPA announced an extension of the transition policy until July
31, 1998. See Memorandum entitled “Extension of January 25, 1995 Potential to Emit Transition
Policy” (Aug 27, 1996) (Internet site http.//www epa gov/ttnloarpg/t5pgm.html). This extension
was originally based, in part, on the schedule for completing the rulemaking on the definition of
PTE.
Second Extension of Transition Policy
The EPA does not expect that the PTE rulemaking which will address the PTE
requirements in, among other rules, the MACT standard General Provisions (40 C F.R part 63,
subpart A) and the Title V operating permits program, will be completed before July 1998. These
rule amendments will affect federal enforceability requirements for Pit limits under these
programs Thus, there will continue to be uncertainty with respect to federally enforceable limits,
and a basis for the January 25, 1995 transition policy will continue to be valid after July 31, 1998
The EPA is, therefore, extending the transition period for the MACT and Title V programs until
December 31, 1999, or until the effective date of the final rule in the Pit rulemaking, whichever
is sooner.

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Interim Policy During Period Between D C Circuit Opinions and Final PTE RuJe
A January 22, 1996 policy memorandum entitled “Release of Interim Policy on Federal
Enforceability of Limitations on Potential to Emit” sets forth the EPA’s interim policy on federal
enforceability during the period prior to the effective date of a final PTE rule (available on the
Internet at http:f/www.epa.govl/ttn/oarpg/tspgm.html). Because there have been several inquiries
into the application of the interim policy, the EPA encourages Regions, States and regulated
sources to review that policy memorandum, as it stiti represents the EPA’s position. A brief
description is provided below.
Section 112 : In National Mining Association v EPA , 59 F.3d 1362 (D.C. Cir. 1995), the
D.C. Circuit questioned whether the federal enforceability requirement in the General Provisions
to 40 C.F.R part 63 was “necessary.” The court remanded, but did not vacate, the definition of
PTE in the General Provisions Nonetheless, as noted above, since January 25, 1995, in a policy
decision prior to the National Mining opinion, the EPA has followed the transition policy
regarding what limits are necessary to render a source of hazardous air pollutants a “synthetic
minor” source for purposes of section 112 As discussed above, today’s memorandum extends
the transition policy until December 31, 1999.
Title V : In Clean Air Implementation Project v. EPA , No. 96-1224 (D.C Cir. June 28,
1996) (CAIT’), th ccu.-t vacat d and e ; 1 ar c ed the rcquirement for federal enforceability for ?TE
limits under 40 C.F.R. part 70 The EPA has stated that the term “federally enforceable” in
section 70.2 should now be read to mean “federally enforceable or legally and practicably
enforceable by a State or local air pollution control agency” pending any additional rulemaking by
the EPA
As stated in the August 1996 memorandum, the EPA interprets the court order vacating
the part 70 definition as not affecting any requirement for federal enforceability in existing State
rules and programs. Pending the outcome of the current rulemaking effort, the EPA believes that
States are not likely to pursue submittals for program revisions Thus, despite the State program
requirements for federal enforceability, there may be States wishing to continue to observe the
transition policy -- the transition policy specifically allows States to follow it in determining Title
V applicability. Therefore, as stated above, the EPA is extending the transition policy as it relates
to Title V permitting until December 31, 1999
New Source Review In Chemical Manufacturers Association v EPA , No 89-1514 (D C.
Cir. Sept. 15, 1995) the court remanded and vacated the federal enforceability requirement in the
federal NSR/PSD rules The EPA reiterates that neither the January 25, 1995 transition policy,
the opinion in National Mining nor the court order in CAIP impacts the NSR or PSD programs.
A full discussion of the EPA’s policy with respect to PTE issues related to the NSR and PSD
programs is presented in the January 22, 1996 policy memorandum
In brief, that memorandum states that the court’s order in Chemical Manufacturers
Association did not impact the individual state rules implementing these programs that have been
incorporated into EPA-approved State Implementation Plans (SIPs). Thus, the order’s practical

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impacts on NSRIPSD programs are not substantial for new construction -- federal enforceability
is still required to create “synthetic minor” new and modified sources in most circumstances
pending completion of the P1’E rulemaking. The precise impact of the vacatur on NSR/PSD
applicability can be definitively determined only by reviewing the applicable SIP provisions
Distribution/Further Information
We are asking Regional Offices to send this memorandum to States within their
jurisdiction Questions concerning specific issues and cases should be directed to the appropriate
Regional Office. The Regional Office staff may contact John Walke of the Office of General
Counsel at 202-260-9856; or Carol Holmes of the Office of Regulatory Enforcement at
202-564-8709. The document is also available on the Internet, at http.\\www.epa.gov\ttn\oarpg,
under “OAR Policy and Guidance Information”
Addressees
Director, Office of Ecosystem Protection, Region I
Director, Division of Environmental Planning and Protection,
Region II
Director, Division of Air Quality, Region III
Director, Air, Pesticides, and Toxics ManagemeilL Divisk, 1 i, .egiott XV
Director, Air and Radiation Division, Region V
Director, Multimedia Planning and Permitting Division, Region VI
Director, Air, RCRA, and TSCA Division, Region VII
Assistant Regional Administrator, Office of Pollution Prevention,
State, and Tribal Assistance, Region VIII
Director, Air and Toxics Division, Region TX
Director, Office of Air, Region X
Regional Counsels, Regions I-X
Director, Office of Environmental Stewardship, Region I
Director, Division of Enforcement and Compliance Assurance,
Region II
Director, Enforcement Coordination Office, Region III
Director, Compliance Assurance and Enforcement Division, Region VI
Director, Enforcement Coordination Office, Region VII
Assistant Regional Administrator, Office of Enforcement, Compliance
and Environmental Justice, Region VIII
Enforcement Coordinator, Office of Regional Enforcement
Coordination, Region IX
cc. C. Holmes (2242A)
J. Ketcham-CoIwill (6103)
J. Walke (2344)
L Hutchinson (MD12)

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UNITED STATES ENVIRONUENT PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR 2 8 1991
MORANDUM
SUBJECT:
FROM:
TO:
OFFICE OF ENFORCEMENT
Draft Guidance on Retroactive Application of CAAA
Provisions That Enhance Enforcement uthority
Michael S. Alushin , ‘. ii,
Associate Enforcement Counsel for Air
Office of Enforcement
Addressees
The attached document provides draft guidance on the ability
of EPA to retroactively apply some of the new enforcement
provisions of the Clean Air Act Amendments of 1990 to violations
that occurred prior to the statute’s effective date of November
15, 1990.
Case law and rules of statutory construction indicate that
amendments to a statute that are procedural, rather than
substantive in nature, can be applied retroactively. This
guidance addresses the factors Regions should consider before
applying the Act’s new enforcement provisions to pre-enactment
violations.
Please submit any conu ents you might have on this draft
guidance to Julie Domike by April 29, 1991.
Attachment
Addressees:
Regional Counsels
Regions I—X
Regional Counsel Air Contacts
Regions I-X
John B. Rasnic
Acting Director
Stationary Source Compliance Division
Alan Eckert
Office of General Counsel
REGIONAL
C CU N ‘ L
U)
A R 1 .t
-— H
L . —p
Pruve4 t Recycled Paper

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John Cruden, Chief
Environmental Enforcement Section
Department of Justice
Robert Van Heuvelen, Deputy Chief
Environmental Enforcement Section
Department of Justice
Walker Smith, Assistant Chief
Environmental Enforcement Section
Department of Justice
Jennifer Haverkamp
Policy, Legislation, & Special Litigation Section
Department of Justice
cc: Scott Fulton
Director of Civil Enforcement

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çtO S7q
UNITED STATES ENVIRONMENTAL PROTECT p AGENCY
\ WASHINGTON, DC
Lp ø1 -
L - 0 F)CE OF ENF0RCEME
ATLA TA, GA.
MEMORANDUM
SUBJECT: Draft Guidance on Retroactive Application of CAAA
Provisions That Enhance Enforcement Authority
FROM: Michael S. Alushjn
Associate Enforcement Counsel for Air
Office of Enforcement
TO: Addressees
The Clean Air Act Amendments of 1990 (‘ t CAAA”) include
several new provisions that strengthen EPA’s enforcement
authority. This guidance addresses EPA’s ability to
retroactively apply three of these provisions to violations that
occurred prior to the Amendments’ effective date of November 15,
1990: (1) the presumption of a continuing violation, (2) the
deletion of the requirement to establish an additional violation
after thirty days from NOV issuance and (3) the new
administrative penalty authority.
Generally, enforcement amendments to a statute can be
applied to pre-enactment violations if Congress, through the
statute itself, or in the legislative history, sanctions such
application. In addition, absent such a congressional mandate,
courts have upheld retroactive application of statutory changes
if they are procedural or remedial, as opposed to substantive, in
nature.
Statutory/Legislative Intent
The Clean Air Act Amendments of 1990 lack a provision that
indicates whether the new Title VII enforcement mechanisms can be
applied retroactively. There are provisions, however, that limit
the new administrative penalty authority in Title II (mobile
sources) to violations that occur or continue on or after the
date of enactment. The fact that retroactivity is addressed
See enera1ly Union Pacific Railroad Co. v. Laramie Stock
Yards Co. , 231 U.S. 190 (1913), United States v. Vane],la , 619
F.2d 384 (5th Cir. 1980), United States V. Fernandez-Toledo , 749
F.2d 703 (11th Cir. 1985), Grjffpn v. U.S. Department of Health
and Human Services , 802 F.2d 146 (5th Cir. 1986).
Prgnjed o t Recycled Paper

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under Title II, though, does not provide a definitive answer for
whether Title VII provisions can be retroactively applied.
This Congressional silence under Title VII could mean either
that (1) EPA can retroactively apply Title VI I enforcement
provisions, because if Congress wanted to limit such application,
it knew how to limit it (as it did under Title II), but refrained
from doing so or (2) that Congress did not consider and therefore
did not address the issue under Title VII, thus providing no
indication of its intent.
The legislative history also lacks definitive guidance. The
Senate Committee Report states that the language change that
deletes the requirement of having to establish a continuing
violation more than 30 days after an NOV is issued merely
“clarifies and confirms” the existing language. The legislative
history is silent with respect to the application of the
presumption of a continuing violation and the administrative
penalty authority. 3
ubstgntjve/prpcedurp1 Distinction
Generally, courts have followed the rule of statutory
construction that, in the absence of explicit congressionai
intent, substantive legislation is to be given prospective
application, while procedural and remedial legislation is to be
given retroactive application. This rule stems from the
principle that applying new substantive laws to past acts would
unjustly affect “vested” rights, i.e. it inherently would be
unfair to apply new obligations and liabilities to past actions.
On the other hand, applying procedural and remedial changes to
past actions does not result in “manifest injustice”, because
such changes would not have altered past behavior, or deprive a
defendant of defenses upon which it had relied. 3
2 This memorandum does not analyze those provisions that are
inherently substantive in nature (e.g. the authority to enforce
Section 167 orders or the enhanced administrative subpoena
authority) or those whose changes merely reflect the way EPA
already interprets the provision (e.g. the calculation of the
number of days of violation, the factors considered in penalty
assessment or the scope of administrative orders issued pursuant
to Section 167).
See Bradley v. School Board of the City of Richmond , 416
U.S. 696 (1973).

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(1) Rebutting the Presumption of Noncompliance
The language of Section 113(e)(5) that creates the
presumption of noncompliance also provides the violator the
ability to rebut the presumption,
to the extent that the violator can prove by a
preponderance of the evidence that there were
intervening days during which no violation occurred or
that the violation was not continuing in nature.
This change, though Ostensibly a procedural one (because the
underlying elements of liability are the same), contains an
element of a substantive change as well, in that it specifically
provides for the presumption to run from the date of notice of
the violation, which a defendant can rebut with evidence of its
compliance. Prior to this change, the defendant could have
assumed in some circumstances that, unless EPA documented its
noncompliance on a particular day, it would not be held liable
for that day. Though in many cases a defendant would not have
changed its behavior even if this provision had been available to
it, the fact that it could have, and thus was not availed of the
new “defense”, militates against its application to violations
that occurred prior to November 15, 1990. Therefore, this
provision should not be applied retroactively.
(2) 10-Day Continuing Violation Requirement
The language change that deletes the requirement of having
to establish an additional violation after thirty days from the
NOV issuance before filing a civil action to enforce a SIP
represents a procedural change and, according to the legislative
history, serves to clarify and confirm pre-CAAA interpretation.
Retroactive application of the change probably would not affect
any vested rights or increase a defendant’s liability. Thus,
this provision can be applied retroactively. Note, however, that
because EPA usually can document more than one day of violation,
there probably will be few cases where EPA may wish to apply this
provision to a pre-CAAA violation.
(3) Administrative Penalty Authority
By providing a new forum for enforcement actions, the
administrative penalty authority also represents a procedural
change. The decisions upholding EPA’s retroactive application of
the administrative penalty authority created under the Clean
Water Act Amendments of 1987 were based upon the fact that,
because a defendant’s liability existed prior to the date of the
amendments, enforcing violations administratively instead of
judicially did not affect substantive rights. These decisions
noted that the new authority was an added enforcement tool

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intended to complement a vigorous civil judicial enforcement
mechanism. 4 Therefore, cases can be brought pursuant to this
administrative authority for pre-enactment violations.
Practically, however, retroactive application of this new
authority will have limited use. The amendments limit
administrative actions to matters where the first alleged date of
violation occurred no more than 12 months prior to the initiation
of the administrative action (except where the Administrator and
the Attorney General jointly determine that a matter involving a
longer period of violation is appropriate for administrative
penalty action). Because the administrative hearing procedures
are not expected to be promulgated until September, 1991, there
exists only a two month window where violations that occurred
prior to November 15, 1990 could be subject to retroactive
application of the administrative penalty authority. (This time
period may be longer in the case of a defendant who consents to
payment of an administrative penalty without the benefit of an
opportunity of a hearing).
In the past, even where there was clear legal authority to
retroactively apply amendments that solely increased the
statutory maximum penalty 1 EPA and DOJ have declined to do so
because the increased legal resources required to defend
challenges to retroactive application were deemed not worth the
expected increase in penalty. This consideration is relevant in
any decision to apply a new CAAA provision to a pre-enactment
violation.
Enhanced Criminal Enforcement Authority
The new criminal enforcement provisions cannot be applied to
pre—enactment violations. The post facto clause of the
Constitution precludes retroactive application of laws that
punish an action as criminal that was not expressly defined as
criminal when committed, or that increase a criminal fine.
See In the Hatter of Universal Circuits. Inc. , Docket No.
cWA-IV-88-00l (August 22, 1988, Judge Vanderheyden), In the
Matter of City of Rochester. New Hampshire , Docket No. CWA-l-I-
88-1009 (March 21, 1989, James T. Owens, III, Presiding Officer,
In the Matter of Mr. William R Cochran , Docket No. CWA-404-89-
01 (November 6, 1989, Robert W. Caplan, Presiding Officer).

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Addressees:
Regional Counsels
Regions i-x
Regional Counsel Air Contacts
Regions i-x
John B. Rasnic
Acting Director
Stationary Source Compliance Division
Alan Eckert
Office of General Counsel
John Cruden, Chief
Environmental Enforcement Section
Department of Justice
Robert Van Heuvelen, Deputy Chief
Environmental Enforcement Section
Department of Justice
Walker Smith, Assistant Chief
Environmental Enforcement Section
Department of Justice
Jennifer Haverkamp
Policy, Legislation, & Special Litigation Section
Department of Justice
cc: Scott Fulton
Director of Civil Enforcement

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Sr 4 ,
f UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C. 20460

4
PUG I 3 1990
MEMORANDUM
SUBJECT: Draft Revision of the March 25, 1987 Clean Air Act
Stationary Source Civil Penalty Policy
FROM: Michael S. Alushin
Associate Enforcement Counse
Air Enforcement Division
John B. Rasnic, Acting Director 1 fr I/ ’
Stationary Source Compliance Div sion
TO: Addressees
Attached for comment is a draft revision of the March 25,
1987 Clean Air Act Stationary Source Civil Penalty Policy. Our
staff asked for your ideas about updating the penalty policy in a
memorandum dated February 22, 1990. This draft incorporates your
suggestions and also includes some proposed changes initiated by
the Office of Enforcement.
We propose to tighten the requirements for mitigation based
on a source’s good faith. Mitigation based on this factor would
be allowed only in two specific circumstances and would not in
any event exceed 30% of the gravity component. The policy would
also consolidate the discussion of mitigation based on litigation
risk as it applies to the penalty as a whole. The discussion has
been expanded to give concrete examples of valid litigation risks
justifying mitigation. Also, we propose to delete the language
regarding the ranges of discretion given the litigation team
regarding mitigation of the gravity component. All mitigation of
any percentage would have to be justified in terms of the penalty
policy criteria and the facts of the specific case.
Many other changes are proposed at the suggestion of the
Regions. The penalty policy would, for example, specify that
violation of § 114 Requests for Information and § 113
Administrative Orders are covered in the Importance to the
Regulatory Scheme portion of the gravity component and are to be
assessed a penalty of $15,000. How penalties are to be
calculated in cases with more than one violation would also be
clarified. Generally, the economic benefit of each violation
would be calculated and assessed. Then the gravity component.
figures that are applicable under the Actual and Possible Harm
and Importance to the Regulatory Scheme sections would be

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calculated and assessed. Only one size of the violator figure
would be assessed for the case as a whole, and the size of the
violator figure would never represent over 50% of the total
penalty. The related issue of how to calculate the penalty in a
case with more than one reporting violation would also be
clarified.
The policy also would be amended to give the litigation team
the discretion to increase the gravity component in cases where
the violation in question caused severe environmental damage.
Finally, the dollar values based on length of violation would be
further divided to distinguish between violations which last a
few days and those lasting six months.
Some comments were not incorporated. There was a suggestion
that the revised policy address administrative penalties to be
obtained under new administrative authority anticipated as part
of the Clean Air Act Amendments. A workgroup is already in the
process of developing a separate penalty policy for these
enforcement actions. One Region also requested that the policy
deal more specifically with the economic benefit of noncompliance
of a municipality. OE will consider whether the BEN model
adequately takes into account this special situation. One
comment pointed out that for violations of PSD permits both the
economic benefit component and, under Appendix I, the gravity
component are calculated based upon the cost of add on controls
necessary to meet BACT or LAER. The concern is that often at the
time of referral BACT or LAER has not yet been determined.
Generally, the Regions should use their best engineering judgment
to anticipate what BACT or LAER will be.
One Region suggested that discretion to accept mitigation
projects be expanded. This is a multi-media issue which will be
addressed in generic guidance. There was also a suggestion that
the definition of net assets with regard to figuring the size of
the violator portion of the penalty be more specific than the
current page 9k. OE will consider this comment further before
proposing changes and would welcome any suggestions. A
suggestion was also made to deal specifically with the economic
benefit regarding government-owned, contractor-operated
facilities. AED will consult with the Federal Facilities office
about the feasibility of addressing this issue in a media—
specific guidance.
Finally, one Region suggested that the concept of economic
benefit be expanded to include profits obtained during the period
in which a source is operating without a PSD or NSR permit. OE
has not incorporated this comment in the draft policy. We would
however appreciate comment on this idea and an alternative
proposal. OE proposes that the concept of economic benefit
consider the profits a violating source obtained while in

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violation in cases where the source eventually comes into
compliance by means of shutdown. In this situation, the economic
benefit according to the BEN calculation of delayed and avoided
costs would be figured. Then, the profits obtained by the source
from the first provable day of violation until shutdown would be
calculated using standard balance sheets. The economic benefit
component would be the higher of the two numbers.
The proposal is not applied to companies which stay in
business and eventually come into compliance. The reason is that
there would inherently be double counting in this situation as
some of the profits would always be due to the source’s delay in
installing necessary control equipment which is recovered now
under the BEN calculation.
Please send your comments on this draft to Elise Hoerath of
OE—Air (LE—134A, 382—2843) by August 31, 1990.
Attachment
Addressees:
Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
Air and Waste Management Division Director
Region II
Air, Toxics and Radiation Management Division Director
Region III
Air and Radiation Division Director
Region V
Air, Pesticides, and Toxics Division Director
Region VI
Air Management Division Director
Region I
Air, Pesticides, and Toxics Management Division Directors
Region IV
Air and Toxics Division Directors
Regions VII, VIII, IX and X
John S. Seitz, Director
Office of Air Quality Planning and Standards
Bruce RothroCk, OCAPO

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David T. Buente, Chief
Environmental Enforcement Section
U.S. Department of Justice

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CLEAN AIR ACT STATIONARY SOURCE CIVIL PENALTY POLICY
I. INTRODUCTION
Section 113 (b) of the Clean Air Act, 42 U.S.C. § 7413 (b),
provides the Administrator of EPA with the authority to commence a
civil action against certain violators to recover a civil penalty
of up to $25,000 per day per violation. Since July 8, 1980, EPA
has been assessing civil penalties for Clean Air Act violations
under Section 113 (b) based on the considerations listed in the
statute and the guidance provided in the Civil Penalty Policy
issued on that date.
On February 16, 1984, EPA issued the Policy on Civil
Penalties (GM—21) and a Framework for Statute—Specific Approaches
to Penalty Assessments (GM-22). The Policy focuses on the general
philosophy behind the penalty program. The Framework provides
guidance to each program on how to develop medium-specific penalty
policies. The Air Enforcement program followed the Policy and the
amework in drafting the Clean Air Act Stationary Source Penalty
Policy, which was issued on September 12, 1984, and revised March
25, 1987. This policy amends the March 25, 1987 revision
incoporating EPA’S further experience in calculating and
negotiating penalties.
This document provides guidance to be used in calculating the
penalty EPA will require in settlement of civil enforcement
actions taken pursuant to the Clean Air Act. It reflects the
considerations enumerated in Section 113 (b) of the Clean Air Act.
It applies only to initial enforcement actions in U.S. District
Court and is not meant to control the penalty amount requested in
actions to enforce existing consent decrees. The required use of
this guidance is also limited to pre-trial settlement of
enforcement actions. Once a case proceeds to trial, EPA attorneys
are not bound by this document, except the policy on mitigation
projects in Section IV. In a trial, government attorneys may find
it relevant and helpful to introduce a penalty calculation under
this policy, as a point of reference in a demand for appropriate
penalties. However, once a case goes to trial, they should ask
for a larger penalty than the minimum settlement figure as
calculated under the policy.
The general policy applies to most Clean Air Act violations.
There are some types of violations, however, that have
characteristics which make the use of the general policy
In these actions, EPA will normally seek the penalty amount
dictated by the stipulated penalty provisions of the consent
decree. If a consent decree contains no stipulated penalty
provisions, the case develop eflt team should propose penalties
suitable to vindicate the authority of the Court.

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inappropriate. These are treated in separate guidance, included
as appendices. Appendix I covers violations of permit
requirements. Appendix II deals with the gravity component for
vinyl chloride violations. Appendix III covers the benefit and
gravity components for asbestos demolition and renovation
violations. The general policy applies to violations of volatile
organic compound regulations where the compliance plan involves
installation of control equipment. Separate guidance is provided
for VOC violators which comply through reformulation (Appendix
IV). Appendix VI deals with the gravity component for volatile
hazardous air pollutants violations. Appendix VII covers
violations of the residential wood heaters regulations.
Violations of the regulations to protect the stratoshperic ozone
are covered in Appendix VIII.
This penalty policy contains two components. First, it
describes how to achieve the goal of deterrence through a penalty
that removes the economic benefit of noncompliance and reflects
the gravity of the violation. The second component discusses
adjustment factors applied so that a fair andequitable penalty
will result, and there will be a swift resolution to the
environmental problem. The litigation team should calculate the
full economic benefit and gravity components and then decide
whether any of the adjustment factors applicable to either
component is appropriate.
This guidance tells how to calculate minimum settlement
figures for the internal use of Agency negotiators. Consequently,
the penalty figures in negotiations should not necessarily be as
low as the minimum figure. The final settlement figure should
never be lower than the calculated minimum settlement figure
taking into account all appropriate adjustment factors.
All penalties paid pursuant to this penalty policy are not
deductible for Federal tax purposes, and should be specifically
delineated as such.
The procedures set out in this document are intended solely
for the guidance of government personnel. They are not intended
and cannot be relied upon to create rights, substantive or
procedural, enforceable by any party in litigation with the United
States. The Agency reserves the right to act at variance with
this policy and to change it at any time without public notice.
This penalty policy is effective immediately with respect to
all cases which have been filed in court or referred to the
Department of Justice in which a penalty offer has not been
transmitted to the opposing party.

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II. THE PRELIMINARy DETERRENCE AMOUNT
The February 16, 1984, Policy on Civil Penalties establishes
deterrence as an important goal of penalty assessment. More
specifically, it says that any penalty should, at a minimum ,
remove any significant benefits resulting from noncompliance. tn
addition, it should include an amount beyond removal of economic
benefit to reflect the seriousness of the violation. That portion
of the penalty which removes the economic benefit of noncompliance
is referred to as the “economic benefit component;” that part of
the penalty which reflects the seriousness of the violation is
referred to as the “gravity component.” When combined, these two
components yield the “preliminary deterrence amount.”
This section of the document provides guidelines for
calculating the benefit component and the gravity component. it
will also discuss the limited circumstances which justify
adjusting either component. The uses of the preliminary
deterrence amount will be explained in subsequent portions of this
document.
A. THE ECONOMIC BENEFIT COMPONENT
In order to ensure that penalties remove any significant
economic benefit of noncompliance, it is necessary to have
reliable methods to calculate that benefit. The existence of
reliable methods also strengthens the Agency’s position in both
litigation and negotiation. This section sets out guidelines for
computing the economic benefit component. It first addresses
costs which are delayed by noncompliance. Then it addresses costs
which are avoided completely by noncompliance. It also identifies
issues to be considered when computing the economic benefit
component for those violations where the benefit of noncompliance
results from factors other than cost savings. This section
concludes with a discussion of the proper use of the economic
benefit component in developing penalty figures and in settlement
negotiations.
1. Banef it from delayed costs
In many instances, the economic advantage to be derived from
noncompliance is the ability to delay making the expenditures
necessary to achieve compliance. For example, a facility which
fails to install a scrubber will eventually have to spend the
money needed to install the scrubber in order to achieve
compliance. But, by deferring these capital costs until EPA or a
State takes an enforcement action, that facility has achieved an
economic benefit. Among the types of violations which may result
in savings from deferred cost are the following:
Failure to install equipment needed to meet emission
control standards.

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• Failure to effect process changes needed to lessen
pollution.
Testing violations, where the testing still must be done
to demonstrate achieved compliance.
• Application of monitoring equipment.
The economic benefit of delayed compliance should be computed
using the “Methodology for Computing the Economic Benefit of
Noncompliance,” which is Technical Appendix A of the BEN User’s
Manual . This document provides a method for computing the
economic benefit of noncompliance based on a detailed economic
analysis. The method is a refined version of the method used in
the previous Civil Penalty Policy issued July 8, 1980, for the
Clean Water Act and of the Clean Air Act. BEN is a computer
program available to the Regions for performing the analysis.
2. Benefit from avoided costs
Many types of violations enable a violator to avoid
permanently certain costs associated with compliance. These
include cost savings for:
• Operation and maintenance of equipment that the violator
failed to install.
• Failure to properly operate and maintain existing
control equipment (or process equipment if it affects
pollution control).
• Failure to employ a sufficient number of adequately
trained staff.
• Failure to establish or follow precautionry methods
required by regulations or permits.
• Process, operational, or maintenance savings from
removing pollution equipment.
.1.
• Failure to conduct testing which was once necessary but
is not any longer.
• Failure to install, operate, and maintain monitoring
equipment.
The benefit from avoided costs must also be computed using
methodology in Technical Appendix A of the BKN User’s Manual .
The benefit from delayed and avoided costs is calculated
together, using the BEN computer program, to arrive at an amount

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equal to the economic benefit of noncompliance for the period from
the first provable date of violation until the date of compliance.
3. Adiusting the Economic Benefit Component
As noted above, settling for an amount which does not remove
the economic benefit of noncompliance can encourage people to wait
until EPA or the State begins an enforcement action before
complying. For this reason, it is general Agency policy not to
adjust or mitigate this amount. There are three general areas
(described below) where mitigating the economic benefit component
may be appropriate. However, in any individual case where the
Agency decides to mitigate the economic benefit component, the
litigation team must detail those reasons in the case file and in
any memoranda accompanying the settlement. Following are the
limited circumstances in which EPA can mitigate the economic
benefit component of the penalty:
a. Economic benefit component involves insignificant
amount
It is clear that assessing the economic benefit component and
negotiating over it will often represent a substantial commitment
of resources. Such a commitment of resources may not be warranted
in cases where the magnitude of the economic benefit component is
not likely to be significant because it is not likely to have
substantial financial impact on the violator. For this reason,
the litigation team has the discretion not to seek the economic
benefit component where it appears that the amount of that
component is likely to be less than $5,000. In exercising that
discretion, the litigation team should consider the following
factors:
Impact on violator : The likelihood that assessing the
economic benefit component as part of the penalty will
have a noticeable effect on the violator’s competitive
position or overall profits. If no such effect appears
likely, the benefit component should probably not be
pursued.
The size of the gravity component : If the gravity
component is relatively small, it may not provide a
The litigation team consists of the attorneys assigned to
the case from EPA Headquarters, the EPA Region, the Department of
justice Environmental Enforcement Section, and the u.s. Attorney’s
Office. The recommendation of the litigation team must be
unanimous. Any of the litigation team members may defer to the
other members of the team. If a unanimous position cannot be
reached, the matter should be escalated and a decision made by EPA
and the Department of justice managers, as required.

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sufficient deterrent, by itself, to achieve the goals of
this policy. In situations like this, the case
development team should insist on including the economic
benefit component in order to develop an adequate
penalty.
In certain classes of violations, the penalty will contain no
economic benefit component. Most of these classes of violations
are handled in the appendices to this penalty policy. However, in
the case of a non-recurring operation and maintenance violation
which is being handled under this policy, it makes little sense to
assess in detail the economic benefit for each individual
violation because the benefit is likely to be small. Therefore,
for these violations, the economic benefit component need not be
computed.
b. Compelling public concerns
The Agency recognizes that there may be some instances where
there are compelling pubic concerns that would not be served by
taking a case to trial. In such instances, it may become
necessary to consider mitigating the economic benefit component.
This may be done only if it is absolutely necessary to preserve
the countervailing public interests. Such settlement might be
appropriate where the following circumstances occur:
Removal of the economic benefit would result in plant
closings, bankruptcy, or other extreme financial burden,
and there is an important public interest in allowing
the firm to continue in business. Alternative payment
plans should be fully explored before resorting to this
option. Otherwise, the Agency will give the perception
that shirking one’s environmental responsibilities is a
way to keep a failing enterprise afloat. This exemption
does not apply to situations where the plant was likely
to close anyway, or where there is a likelihood of
continued harmful noncompliance.
In enforcement actions against nonprofit public
entities, such as municipalities and publicly-owned
utilities, where assessment of the economic benefit
component threatens to disrupt continued provision of
essential public services.
c. Concurrent administrative action
EPA will not usually seek to recover the economic benefit of
noncompliance from one violation under both a civil judicial and
civil administrative action. Therefore, if an administrative
action is pending or has been concluded against a source for a
particular violation and a civil judicial penalty settlement

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amount is being calculated for the same violation, the economic
benefit component need not include the period of noncompliance
covered by the administrative action.
In these cases, although the agency will not usually seek
double recovery, the litigation team should not automatically
mitigate the economic benefit component by the amount assessed in
the administrative action. The Clean Air Act allows dual recovery
of the economic benefit, and so each case must be considered on
its individual merits. The Agency may mitigate the economic
benefit component in the civil judicial action if the litigation
team determines such a settlement equitable and justifiable. The
litigation team should primarily consider in making this decision
whether the penalty calculated without the adininstrative penalty
is a sufficient deterrent.
d. Offset for penalties paid to State and local agencies for
the same violation
While EPA will not automatically subtract any penalty amount
paid by a source to a State or local agency for the same violation
that is the basis for EPA’s enforcement action, EPA may do so if
circumstances suggest that it is appropriate.
B. THE GRAVITY COMPONENT
As noted above, the Policy on civil Penalties specifies that
a penalty, to achieve deterrence, should remove any economic
benefit of noncompliance, and should also include an amount
reflecting the seriousness of the violation. Section 113 (b)
instructs EPA to take into consideration in setting the
appropriate penalty amount the size of the business, the economic
impact of the penalty on the business, and the seriousness of the
violation. Factors reflecting the seriousness of the violation
are referred to as the “gravity component.” This section of the
policy establishes an approach to quantifying the gravity
component.
Assigning a dollar figure to represent the gravity of the
violation is a procesa which must, of necessity, involve the
consideration of a variety of factors and circumstances.
Nevertheless, the relative seriousness of different violations can
be fairly accurately determined in most cases. This can be
accomplished by reference to the goals of the Clean Air Act to
protect and enhance the quality of the nations’s air resources and
the facts of each particular violation. Thus, linking the dollar
amount of the gravity component to these objective factors is a
useful way of insuring that violations of approximately equal
seriousness are treated the same way. The objective factors are
designed to reflect those listed in Section 113 (b) of the Clean
Air Act as appropriate for the Court to consider in determining
the amount of a civil penalty.

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The specific objective factors in this civil penalty policy
designed to measure the seriousness of the violation and reflect
the considerations listed in the Clean Air Act are as follows;
Actual or nossible harm : This factor focuses on whether
(and to what extent) the activity of the defendant
actually resulted or was likely to result in the
emission of a pollutant in violation of the level
allowed by an applicable State Implementation Plan or
Federal regulation.
Importance to the regulatory scheme : This factor
focuses on the importance of the requirement to
achieving the goal of the Clean Air Act and its
implementing regulations. For example, the NSPS
regulations require owners and operators of new sources
to do emissions testing and report the results within a
certain time after start-up. If a source owner or
operator does not report the test results, EPA would
have no way of knowing whether that source is complying
with NSPS requirements.
• Size of violator : The gravity component should be
increased, in proportion to the size of the violator’s
business.
The assessment of the first gravity component factor listed
above, actual or possible harm arising from a violation, is a
complex matter. For purposes of ranking violations according to
seriousness, it is possible to distinguish violations within a
category on the basis of certain considerations, including the
following:
• Amount of pollutant : Adjustments based on the amount of
the pollutant emitted are appropriate.
• Sensitivity of the environment : This factor focuses on
where the violation occurred. For example, excessive
ea.ts ons in a.n9 ttainment area are usually more
serious than excessive emissions in an attainment area.
• Toxicity of the pollutant : Violations involving highly
toxic pollutants are more serious and should result in
relative Larger penalties.
• The length of time a violation continues : The longer a
violation continues uncorrected, the greater is the risk
of harm.

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Size of violator : A corporation’s size is indicated by
its stockholders’ equity or “net worth.” This value
which is calculated by adding the value of capital
stock, capital surplus, and accumulated retained
earnings corresponds to the entry for “worth” in the Dun
and Bradstreet reports for publicly traded corporations.
The simpler bookkeeping methods employed by sole
proprietorships and partnerships allow determination of
their size on the basis of net current assets. Net
current assets are calculated by subtracting current
liabilities from current assets.
The following dollar amounts assigned to each factor should
be added together to arrive at the total gravity component:
1. Actual or possible harm
a. Level of violation
Percent Above Standard Dollar Amount
0 — 30% $4,000
30 — 60% 8,000
60 — 90% 12,000
90 — 120% 16,000
120 — 150% 20,000
150 — 180% 24,000
180 — 210% 28,000
210 — 240% 32,000
240 — 270% 36,000
270 — 300% 40,000
over 300% 40,000 + 4,000 for each 30%
increment above standard
thereafter
This factor should be used only for emissions violations, and
not procedural violations. Normally the highest documented level
of violation should be used. If that level, in the opinion of the
litigation teaa, is not representative of the period of violation,
‘then the highest documented level that EPA determines to be
representative should be used.
In addition, for sources with high allowable emission rates,
the litigation team may increase this factor based on the gross
volume of emissions, if that volume alone represents a particular
threat to pubic health or welfare.
b. Toxicity of the pollutant: Violations of NESHAPS
regulations not handled by a separate appendix or non-NESHAP
violations involving pollutants for which EPA has announced that
it intends to promulgate a NES)thP: $15,000.

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c. Sensitivity of environment (for SIP and NSPS cases only)
1. Primary non—attainment area $15,000
2. Secondary non-attainment area $10,000
3. Attainment area Class I $ 5,000
4. Attainment area Class II or III $ 2,000
d. Length of time of violation: To determine the length of
time of violation, violations should be assumed to be continuous
from the first provable date of violation until the date of the
compliance demonstration if there have been no significant process
or operational changes. If the source has affirmative evidence,
such a Continuous Emission Monitoring data, to show that the
violation was not continuous, appropriate adjustments should be
made.
Months Dollars
0 — 1 1,000
2 — 6 2,000
7 — 12 4,000
13 — 18 7,000
19 — 24 10,000
25 — 30 14,000
31 — 36 18,000
37 — 42 23,000
43 — 48 28,000
49 — 54 34,000
55 — 60 42,000
2. Importance to the regulatory scheme
The following violations are so important to the regulatory
scheme that additional penalties must ensue:
Monitoring, recordkeeping and reporting requirement
violations: $15,000
Each separate reporting violation should be assessed $15,000.
For example, a source may be required to report at startup
and be subject to a separate requirement to report quarterly
thereafter. If both requirements are violated, the source
should be assessed two $15,000 penalties under this section.
However, if the source over a period of time violates the
same reporting requirement, for example by failing to submit
quarterly reports for one year, the source should be assessed
one $15,000 penalty under this section and $4,000 for the 12
month length of the violation.

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Operation and maintenance practices which result in
violations: $15,000
Violations of § 114 Requests for information or § 113
Administrative Orders $15,000
3. Size of violator
Net worth (corporations); or net current assets (partnerships
and sole proprietorships):
Under $ 100,000 $ 1,000
$ 100,001 — $ 1,000,000 2,000
1,000,001— 5,000,000 8,000
5,000,001 — 20,000,000 12,000
20,000,001 — 40,000,000 20,000
40,000,001 — 70,000,000 40,000
over 70,000,000 65,000
The size of the violator figure should never represent more
than 50% of the total preliminary deterrence amount.
The process by which the gravity component was computed must
be memorialized in the case file. Combining the economic benefit
component with the gravity component yields the preliminary
deterrence amount.
4. Adjusting the Gravity Component
The second goal of the Policy on Civil Penalties is the
equitable treatment of the regulated community. One important
mechanism for promoting equitable treatment is to include the
economic benefit component discussed above in a civil penalty
assessment. This approach prevents violators from benefitting
economically from their noncompliance relative to parties which
have complied with environmental requirements.
In addition, in order to promote equity, the system for
penalty assessment must have enough flexibility to account for the
unique facts of lach case. Yet, it still must produce consistent
enough results to treat similarly-situated violators similarly.
This is accomplished by identifying many of the legitimate
differences between cases and providing guidelines for how to
adjust the gravity component amount when those facts occur. The
application of these adjustments to the gravity component prior to
the commencement of negotiation yields the initial minimum penalty
settlement amount. During the course of negotiation, the
litigation team may further adjust this figure based on new
information learned during negotiations to yield the adjusted
minimum penalty amount.

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Nevertheless, it should be noted that equitable treatment is
a two—edged sword. While it means that a particular violator will
receive no higher penalty than a similarly situated violator, it
also means that the penalty will be no lower.
The purpose of this section is to establish adjustment
factors which promote flexibility while maintaining national
consistency. It sets guidelines for adjusting the gravity
component which account for some factors that frequently
distinguish different cases. Those factors are: degree of
willfulness or negligence, degree of cooperation, history of
noncompliance, ability to pay, and environmental damage. These
adjustment factors apply only to the gravity component and not to
the economic benefit component. Violators bear the burden of
justifying mitigation adjustments they propose based on these
factors.
The litigation team is required to base any adjustment of the
gravity component on the factors mentioned and carefully document
the reasons justifying its application in the particular case.
a. Degree of Wilifuliness or Negligence
This factor should be used only to raise a penalty. The
Clean Air Act is a strict liability statute for civil actions, so
that willfulness, or lack thereof, is irrelevant to the
determination of legal liability. However, this does not render
the violator’s willfulness or negligence irrelevant in assessing
equitable considerations to arrive at an appropriate penalty.
Knowing or willful violations can give rise to criminal liability,
and the lack of any negligence or willfulness would indicate that
no addition to the penalty based on this factor is appropriate.
Between these two extremes, the willfulness or negligence of the
violator should be reflected in the amount of the penalty.
In assessing the.degree of willfulness or negligence, all of
the following points should be considered.
. . .‘ ..% .-
• - o*uOh j ntrol the violator had over the events
- constituting-the violation.
• The foreseeability of the events constituting the
violation.
• The level of sophistication within the industry in
dealing with compliance issues or the accessibility of
appropriate control technology (if this information is
readily available). This should be balanced against the
technology-forcing nature of the statute, where
applicable.

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Whether the violator in fact knew of the legal
requirement which was violated.
b. Degree of Cooperation
The degree of coopfration of the violator in remedying the
violation is an appropriate factor to consider in adjusting the
penalty. The agency wants to encourage swift resolution of
environmental problems. However, EPA expects all sources in
violation to come into compliance expeditiously and to negotiate
in good faith. Mitigation based on this factor should, therefore,
be limited to two situations.
1. Prompt report of noncompliance
The gravity component may be mitigated when a source
promptly reports its noncompliance, especially where there is no
legal obligation to do so.
2. Promot correction of environmental problems
The gravity component may also be mitigated where a
source makes extraordinary efforts to avoid violating a
requirement which is about to come into effect or to come into
compliance after learning it is in violation. Examples of such
efforts would be paying for extra work shifts or a premium on a
contract to have control equipment installed sooner.
In general, the earlier the violator instituted corrective
action after discovery of the violation and the more complete the
corrective action instituted, the larger the penalty reduction EPA
will consider. Swift resolution of environmental problems will be
encouraged if the violator clearly sees that it will be
financially disadvantageous for the violator to litigate without
remedying noncompliance. In all cases, mitigation of the gravity
component based on this factor is limited to no more than 30%.
c. History of Noncompliance
Where a party has violated a similar environmental
requirement before, this is usually clear evidence that the party
was not deterred by a previous governmental enforcement response.
Unless one of the violations was caused by factors entirely out of
the control of the violator, this is an indication that the
penalty should be raised.
In deciding how large this adjustment should be, the
litigation team should consider the following points:
How similar the previous violation was.

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• How recent the previous violation was.
• The number of previous violations.
• Violator’s response to previous violation(s) in regard
to correcting of the previous problem and attempts to
avoid repetition.
A violation should generally be considered “similar” if a
previous enforcement response should have alerted the party to a
particular type of compliance problem. Some facts that indicate a
“similar violation” was committed are:
• The same permit was violated.
• The same pollutant was involved.
• The same process points were the source of the
violation.
• The same statutory or regulatory provision was violated.
• A similar act or omission (e.g., same kind of emission
limitation from same piece of equipment.)
For purposes of this section, a “prior violation” includes
any act or omission for which a formal State, local, or Federal
enforcement response has occurred (e.g., notice of violation,
warning letter, complaint, consent decree, consent agreement, or
final order). It also includes any act or omission for which-the
violator has previously been given written notification, however
informal, that the Agency believes a violation exists.
In the case of large corporations with many divisions or
wholly-owned subsidiaries, it is sometimes difficult to determine
whether a previous instance of noncompliance should trigger the
adjustments described in this section. New ownership often raises
similar problems. In making this determination, the litigation
team should ascertain who in the organizational unit had or
reasonably should have had control ör oversight responsibility for
violative conduct. In those cases where there is a close
relationship between defendants, the violation will be considered
part of the compliance history.
In general, the litigation team should begin with the
assumption that if the same corporation was involved, the
adjustment for history of noncompliance should apply. In
addition, the team should be wary of a party changing operations
or shifting responsibility for compliance to different groups as a
way of avoiding increased penalties. The Agency may find a
consistent pattern of noncompliance by many divisions or

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subsidiaries of a corporation even though the facilities are at
different geographic locations. This often reflects, at best, a
corporate-wide indifference to environmental protection.
Consequently, the adjustment for history of noncompliance should
probably apply unless the violator can demonstrate that the other
violating corporate facilities are under totally independent
control.
d. Ability to Pay
The Agency will generally not request penalties that are
clearly beyond the means of the violator. Therefore, EPA should
consider the ability to pay a penalty in arriving at a specific
final penalty assessment. At the same time, it is important that
the regulated community not see the violation of environmental
requirements as a way of aiding a financially-troubled business.
EPA reserves the option, in appropriate circumstances, of seeking
a penalty that might contribute to a company going out of
business.
For example, it is unlikely that EPA would reduce a penalty
where a facility refuses to correct a serious violation. The same
could be said for a violator with a long history of previous
violations. That long history would demonstrate that less severe
measures are ineffective.
The financial ability adjustment will normally require a
significant amount of financial information specific to the
violator. The litigation team should assess this factor after
commencement of negotiation with the source if the source raises
it as an issue. The source’s ablitity to pay should be determined
according to the December 16, 1986 Guidance on Determining a
Violator’s Ability to Pay a Civil Penalty.
The burden to demonstrate inability to pay, as with the
burden of demonstrating the presence of any mitigating
circumstances, rests on the defendant. If the violator fails to
provide sufficient information, then the litigation team should
disregard this factor in adjusting the penalty. The Office of
Enforcement Policy (NEIC) has developed the capability to assist
the Regions in determining a firm’s ability to pay. This is done
through the computer program, ABEL.
When it is determined that a violator cannot afford the
penalty prescribed by this policy, a next step is to consider a
delayed payment schedule. SUCh a schedule might even be
contingent upon an increase in sales or some other indicator of
improved business. EPA’s computer program, ABEL, can calculate a
delayed payment amount for up to three years.

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Consider straight penalty reductions as a last recourse : ie
this approach is necessary, the reasons for the litigation team’s
conclusion as to the size of the necessary reduction should be
made a part of the formal enforcement file and the memorandum
accompanying the settlement. 3
Consider joinder of a corporate violator’s individual owners :
This is appropriate if joinder is legally possible and justified
under the circumstances. Joinder is not legally possible for SIP
cases unless the prerequisites of Section 113 of the Clean Air Act
have been met -- issuance of an NOV to the person and
documentation of violation thirty days after NOV issuance. The
circumstances where individual joinder is appropriate should be
considered to be present only when discovery shows that
stockholders have used the corporate form as a subterfuge to avoid
personal liability.
Regardless of the Agency’s determination of an appropriate
penalty amount to pursue based on ability to pay considerations,
the violator is always expected to comply with the law.
e. Environmental Damage
Although the gravity component already reflects the amount .of
environmental damage a violation causes, the litigation team may
further increase the gravity component based on severe
environmental damage. As calculated the gravity component takes
into account such factors as the toxicity of the pollutant, the
attainment status of the area of violation, the length of time the
violation continues, and the degree to which the source has
exceeded an emission limit. However, there may be cases where the
environmental damage caused by the violation is so severe that the
gravity component alone is not a sufficient deterrent. In these
cases, aggravation of the gravity component may be warranted.
III. LITIGATION RISK
The preliminary deterrence amount, both economic benefit and
gravity components, may be mitigated in appropriate circumstances
based on litigation risk. Several types of litigation risk may be
considered. For example, regardless of the type of violations a
defendant has committed or a particular defendant’s reprehensible
conduct, EPA can never demand more in civil penalties than the
statutory maximum (twenty-five thousand dollars per day per
violation) multiplied by the number of days of violation for each
If a firm fails to pay the agreed to penalty in a final
judicial order, then the Agency must follow the Federal
Claims Collection Act, 31 U.S.C. Section 370]. at seq.,
procedures for obtaining the penalty amount.

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violation. Note that for purposes of computing both the statutory
maximwa penalty and the minimum settlement amount, the period of
noncompliance begins with the earliest provable day of violation
and ends with the projected date of compliance.
Other examples of legitimate litigation risks would be
adverse legal precedent, evidentiary problems, or an indication
from the court during settlement negotiations it is prepared to
recommend a penalty below the bottom line. Mitigation based on
litigation risk should be carefully documented and explained in
particular detail in coordination with the Department of Justice.
IV. CALCULATING A PENALTY IN CASES WITH MORE THAN ONE VIOLATION
EPA often takes an enforcement action against a stationary
source for more than one violation of the Clean Air Act. In
general, the economic benefit of noncompliance with all
requirements violated should be calculated. Next, the gravity
component factors under actual or possible harm and importance to
the regulatory scheme which are applicable should be calculated
separately for each violation. The size of the violator factor
should only be figured once for all violations.
For example, consider the case of a plant which makes
laainsted partici. board. The particle board plant is found to
emit pirticulates in violation of the SIP particulate emission
limit and the laminating line which laminates the particle board
with a vinyl covering is found to emit volatile organic compounds
in violation of the SIP VOC emission limit. The penalty for the
particulate ViOlat a should be calculated figuring the economic
benefit-of not- co plying with that limit (capital cost of
particulate control, etc. determined by running the BEN computer
model), and then the gravity component for this violation should
be calculated using all the factors in the penalty policy. After
the particulate violation penalty is determined, the VOC violation
should calculated ss follows. The economic benefit should be
calculated iZ additional measures need to be taken to comply with
the VOC li ita in ddition, a gravity component should be
omlcu - - violation using all the applicable factors
)le harm and importance to the regulatory
Lolator factor should only be figured
Another example would be a case whero, pursuant to Section
114, EPA issues a request for information about 502 emissions to a
source which has a coal-burning boiler. The source does not
respond. Four months later, EPA issues an order under Section 113
(a) requiring the source to comply with the Section 114 letter.
The source does not respond. Six months later, EPA inspects the
source and determines that the source is violating the SIP 503
emission limit.
I1vid _ ons’.

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In this case, separate economic benefits should be
calculated, if applicable. Thus, if the source enjoyed any
benefit from not responding to the Section 114 letter or obeying
the Section 113 (a) order, that should be calculated. If not,
only the economic benefit from the SO emission violation should
be determined. In determining the gravity component, the penalty
should be calculated as follows:
1. Actual or possible harm
a. level of violation - use only emission violation
b. toxicity of pollutant - use only emission violation
c. sensitivity of environment - use only emission
violation
d. length of time of violation - separate calculation
of time for each violation. Section 114 violation
continues to run even after Section 113 (a) order is
issued until these requirements are satisfied.
2. Importance to regulatory scheme
a. § 114 request for information and § 113
administraive order violations at $15,000 each
b. Operation and maintenance violations - if SO 2
emission violation is the result of O&M problems, add
$15,000.
3. Size of violator
a. One figure based on the source’s assets. -
V. MITIGATION PROJEC S IN S rr1JEMENT OF GOVERNMENT CLAIMS
The United States of America has entertained, as part of
Clean Air Act enforcement case settlements in the past,
defendants’ proposals to mitigate cash penalty demands in exchange
for the performance of environmentally beneficial projects. This
practice of giving environmental “credits” is expressly
discouraged in all cases, and will be considered a viable
settlement option only in exceptional circumstances.
In situations where they are allowed, the acceptance of
mitigation projects for enviornmentally beneficial expenditures is
subject to certain conditions. The Agency has designed these
conditions to prevent the abuse of this procedure. All of these
conditions must be met before mitigation projects may be accepted:
(1) The activity must be initiated in addition to all
regulatory compliance obligations.

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— 19 —
The project may not be an activity which is otherwise
required by law. The project may not be a substitute for full
compliance. It must be designed to provide an environmental
benefit beyond the benefits of full compliance.
(2) The activity is most likely to be an acceptable basis
for mitigating penalties if it closely addresses the
environmental effects of the defendant’s violation.
Preferably, the project will address the risk or harm caused
by the violations at issue. In general, qualifying activities
must provide a discernible response to the perceptible risk of
harm caused by defendant’s violations which are the focus of the
government’s enforcement action.
(3) The defendant’s cost of undertaking the activity, taking
into account the tax benefits that accrue, must be
commensurate with the degree of mitigation.
In order to attain the deterrent objectives of the civil
penalty policy, the amount of the penalty mitigation must reflect
the actual cost to the defendant. With consideration of tax
benefits, the actual cost of the project may exceed the value of
the mitigation.
(4) The activity must demonstrate a good faith commitment to
statutory compliance.
One test of good faith is the degree to which the defendant
takes the initiative to identify and commence specific, potential
mitigation projects. In addition, the project must be primarily
designed to benefit the environment rather than to benefit the
defendant.
(5) Mitigation based on the defendants’ activity must not
detract significantly from the general deterrent effect
of the settlement as a whole.
The government should continue to consider mitigation
projects as the exception rather than the rule. Efforts should be
made to eliminate any potential perception by the regulated
community that the government lacks the resolve to impose
significant penalties for substantial violations. Thø government
should seek penalties in conjunction with mitigation activities
which dater both the specific defendant and also the entire
regulated community. Accordingly, every settlement should include
a substantial monetary penalty component.
(6) Judicially-enforceable consent decrees must meet the
statutory and public interest criteria for consent
decrees and cannot contain provisions which would be
beyond the power of the court to order.

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— 20 —
A proposed consent decree should not include provisions which
would be beyond the power of the court to order under the
particular statute which has been violated. Additional guidance
on the appropriate scope of relief might be found in the statute,
the legislative history or the implementing regulations.
The Agency should exercise case-by-case judgment in deciding
whether to accept a mitigation project based upon the above
criteria and, in addition, based upon consideration of the
difficulty of monitoring the implementation of the proposed
project in light of the anticipated benefits of the project.

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33

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Ncuir w
I

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY i
Office of Air Quality Planning and Standards & 3
______ Research Triangle Park. North Carolina 23711
PRQ
FEB — - (995
MEMORANDUN
SUBJECT: Revised Capture Efficiency Guidance for Control of
Volatile Organic Compound ,E1 ssions
FROM: John S. Seitz, Director
Office of Air Quality P1 n T and Standards
( / ,/
TO: Director, Air, Pesticide ’ ’nd Toxic Management
Division, Regions I and IV
Director, Air and Waste Management Division,
Region II
Director, Air, Radiation and Toxics Division,
Region III
Director, Air and Radiation Division,
Region V
Director, Air, Pesticides and Toxics Division,
Region VI
Director, Air and Toxic Division,
Regions VII, VIII, IX, and X
In a memorandum dated March 20, 1992, I announced that the
Office of Air Quality Planning and Standards (OAQPS) was
undertaking a study to find less expensive alternatives to our
current temporary total enclosure (TTE) methods for determining
capture efficiency (CE) performance of volatile organic compound
(VOC) emission control systems. I also announced that during the
period of this study the Environmental Protection Agency (EPA)
was instituting a limited moratorium suspending temporarily
certain CE testing and related enforcement activities.
The purpose of this memorandum is three-fold: (1) to release
the attached technical document entitled “Guidelines for
Determining Capture Efficiency” which presents details of the EPA
approved test methods for determining CE; (2) to provide you with
revised guidance on implementing these CE test methods; and (3)
to announce the end of the CE moratorium and to provide you with
guidance on moratorium closure.
Background
As you know, the measurement of CE is critical to
determining the effectiveness of VOC emission control systems.
Our current TTE test methods are the products of an extended
investigation by EPA over 7 years in response to the need
identified a number of years ago by the EPA Regional Offices
(RO’s) as being essential to compliance determination efforts.
)

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2
We received a number of comments from industry, States,
RO’s, and others expressing concern about the cost of using our
recommended gas-gas and liquid-gas methods that specify a TTE to
measure CE. In light of the President’s instructions to review
Federal regulations for ways to minimize their cost to industry,
OAQPS in March 1992 embarked on a 12-month study to develop and
review possible alternatives and the effect that their approval
would have on programs to assure volatile organic compound
emissions reductions. Clearly, when the study began, we did not
know of less costly methods with measurement capabilities
equivalent to those methods using the TTE.
To ensure that all aspects of the issue were considered, the
study was a cooperative effort involving all the divisions in
OAQPS. I would also like to thank the Can Manufacturers
Institute (CMI) for their participation in the study. The
comparison field test CMI conducted not only demonstrated that
the TTE methods are the most precise procedures available for
determining CE but also provided useful data in the development
of the approved alternative CE protocols.
The CE study and moratorium were extended beyond our
originally planned 12 months to utilize the additional data from
the CMI field test and more detailed analyses of CE protocol
options. Our CE study was completed in early November of this
year.
Guidelines for Determining Capture Efficiency Document
The attached document, “Guidelines for Determining Capture
Efficiency,” provides the technical details of the EPA approved
CE test methods, including the data quality objective (DQO) and
lower confidence limit (LCL) test methods recently developed
during OAQPS’s CE study. Appendix A contains a complete
description of the TTE test methods, incorporating several minor
revisions, such as reduced length of test runs, to the TTE test
methods provided in earlier documents. Any future reference
citations regarding EPA’S TTE test methods should be made to
Appendix A of this document.
This guideline document presents the TTE methods as EPA’s
recommended procedures. As indicated from our earlier
investigation leading to the development of the TTE methods and
confirmed by the CMI field study, the TTE methods are the most
precise procedures for measuring CE.
Nevertheless, to provide flexibility and to reduce costs,
EPA has developed two alternative methods, DQO and LCL, for
determining CE which do not require a TTE. Moreover, these
alternatives offer additional flexibility in that they do not
require specific testing procedures for measuring process
parameters and for liquid and gas analyses; but only specify a

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3
limited set of guidelines on the data quality. The DQO and LCL
methods are sets of approval criteria which, when met by the data
obtained with any given protocol of process parameter measurement
procedures, may be used to determine VOC capture system
compliance with a CE standard.
To add further flexibility, the guideline document also
describes an aggregate sampling method where the building may be
used as an enclosure for testing and for multiple lines which
share a common VOC control device such as an incinerator or
adsorber system.
Implementation of Capture Efficiency Guidance
In accordance with the technical guidance provided in the
attached document “Guidelines for Determining Capture Efficiency”
and the policy guidance set forth here, the EPA recommends the
use of these TTE and alternative test methods to the States and
local agencies for determining CE.
For the purpose of CE testing to determine compliance with
VOC Reasonably Available Control Technology (PACT) requirements,
any of the CE testing methods described in the attached document
are acceptable to EPA. Such testing includes initial compliance
certification, enforcement actions where noncompliance is
suspected, and periodic testing as may be required pursuant to
EPA’s enhanced monitoring rules. The LCL should not be used,
however, for enforcement purposes to confirm noncompliance;
sufficient test runs should be run to meet the DQO protocol.
To allow the use of the aggregate sampling method for CE
compliance determinations, the State should provide in its SIP
that aggregate sampling requires a site-specific SIP or FIP
revision to establish a federally enforceable CE PACT for the
building. The building PACT should provide VOC emission
reductions equivalent to the reductions obtained when all the VOC
emission sources within the building are meeting their individual
PACT. In testing multiple lines connected to a common control
device as a group, the CE determined for the group should comply
with the highest (most stringent) CE PACT of any individual line
in the group.
In those situations where CE testing is done to determine
emission reductions for the purpose of establishing emission
credits for offsets, shutdowns, and trading, the LCL method is
not appropriate for these applications. Sources who have used
the LCL method for CE compliance determinations, however, may use
their same testing procedures and perform sufficient test runs to
meet the requirements of the DQO method.

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4
States that have already adopted the TTE test methods into
their SIPS and want to allow the use of any or all of these
alternative methods should revise their SIPs accordingly.
For those States which did not adopt CE test methods and/or
compliance regulations in their SIPs, they should submit to EPA
as soon as possible SIPs with complete CE rules in accordance
with the 1990 Clean Air Act Amendments (CAAA).
With regard to FIPs, I am requesting that Regional Offices
make the necessary revisions as soon as possible to the FIPS in
their regions to allow the use of CE test methods described in
the attached technical guidance and to make the FIPs consistent
with the CE policy set forth here.
The EPA wishes to expedite making this CE guidance available
to the State and local agencies, industry, and the public. I am
therefore requesting that Regional Offices distribute copies of
this memorandum and its attachment to the appropriate contacts in
the State and local agency offices within their regions. This CE
guidance is also being made available on EPA’S TTN bulletin
board.
Capture Efficiency Moratorium Closure
With the CE study now completed, I am announcing the end of
the CE moratorium which has been in effect since March 20, 1992.
The effective date for termination of the moratorium is
February 15, 1995.
I am asking the Regional Offices to notify the appropriate
authorities in the State and local agency offices within their
regions that the CE moratorium is ending and to inform those
authorities of those actions they need to take to resume CE
compliance determinations suspended by the moratorium.
If you have any questions concerning the guidance document
please contact Candace Sorrell at (919) 541—1064. All policy and
implementation questions should be directed to Bob Stallings at
(919) 541—7649.
Attachment
cc: Air Programs Branch Chief, Regions I-X
Air Compliance Chief, Regions I-X
VOC Compliance Work Group
VOC Policy Work Group
Environmental Services Division, Regions I-X
Office of Regional Counsel, Regions I-X

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GUIDELINES FOR DETERMINING
CAPTURE EFFICIENCY
January 9, 1994

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GUIDELINES FOR DETERNINING
CAPTURE EFFICIENCY
Candace Sorrell
Source Characterization Group A (MD—19)
Emission Monitoring and Analysis Division
Office of Air Quality Planning and Standards
U. S. Environmental Protection Agency
Research Triangle Park, NC 27711
January 9, 1994

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TABLE OF CONTENTS
- Page
1.0 INTRODUCTION 1
1.1 Purpose 1
1.2 Background 1
1.3 Document Organization 2
2.0 RECOMMENDED CAPTURE EFFICIENCY (CE) PROTOCOLS AND
TEST METHODS 2
2.1 Permanent Total Enclosure 6
2.2 Temporary Total Enclosure 7
2.3 Building Enclosure 8
3.0 REQUIREMENTS FOR ALTERNATIVE CE PROTOCOLS 9
3.1 Data Quality Objective 10
3.2 Lower Confidence Limit Approach 14
3.3 Additional Criteria 18
3.4 Reporting Requirements for Alternative
CE Protocols 20
3.5 Recordkeeping Requirements for Alternative
CE Protocols 21
4.0 MULTIPLE LINE TESTING 21
4.1 Aggregate Sampling 21
4.2 Multiple Lines/Common Control Device 21
5.0 REFERENCES 22
APPENDIX
ii

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1.0 INTRODUCTION
1.1. Purpose
The primary purpose of this document is to provide technical
guidance to U. S. Environmental Protection Agency (EPA) Regional
Offices regarding capture efficiency (CE) testing. The document
may also prove useful to State and local agency personnel and
owners and operators of stationary sources required to determine
CE.
1.2 Background
In April 1990, EPA issued new guidance on CE testing. 1 This
guidance replaced the traditional liquid/gas mass balance
determinations, which had often resulted in very poor precision
and CE values well in excess of 100 percent. The new protocols
involved permanent total enclosures (PTE’s), temporary total
enclosures (TTE’s), and building enclosures (BE’s). This
guidance was later codified as part of the Chicago Federal
implementation plan (FIP) and included in the document “Model
Volatile Organic Compound Rules for Reasonably Available Control
Technology. ,,2,3
In the beginning, the new protocols were met with resistance
from the regulated community, primarily on grounds of safety and
expense. Over time, the safety issue has largely been dispelled
as it has become clear that, with proper design and operation,
PTE’s and TTE’s pose minimal risk. However, it has also become
clear that in some cases, the new CE protocols are more costly
than the traditional liquid/gas procedures.
1

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To address the cost issue, EPA temporarily suspended certain
federal applicability aspects of its guidance while it embarked
on a 12-month study of alternatives with potential for reducing
CE testing costs. This document is a result of that study and of
simultaneous studies voluntarily undertaken by industry groups.
In this document, EPA presents technical guidance on recommended
procedures and on alternative procedures that may reduce costs.
Revisions to current State implementation plans (SIP’s) are
required to use the alternative CE test methods described herein.
By calling these procedures “alternatives”, the agency does not
intend to imply that they are more difficult to approve than the
“recommended” procedures where the stated criteria for approval
are satisfied. Guidance for implementing these SIP revisions is
provided in the cover memorandum.
1.3 Document Organization
In Section 2.0, EPA’s recommended protocols and test methods
are summarized. Section 3.0 presents two sets of criteria by
which alternative procedures can be approved, as well as the
recommended reporting requirements for using alternative
procedures. Section 4.0 presents a technical description for
aggregate sampling using the building as a TTE and for testing
multiple lines which share a common control device.
2.0 RECOMMENDED CAPTURE EFFICIENCY (CE) PROTOCOLS AND TEST
METHODS
The CE determination protocols and test methods recommended
by EPA are largely unchanged from those issued in the April 1990
guidance memo and codified in the Chicago FIP.’ 2 The EPA
2

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continues to recommend the use of a PTE, TTE, or BE for
determining CE. When a TTE or BE is used, either a gas/gas
protocol or a liquid/gas protocol may be selected. The EPA test
methods for carrying out the recommended protocols have been
revised and will be proposed in the Federal Register for addition
to 40 CFR 51, Appendix M, as Method 204 through Method 204F.
Methods 204 through 204E were originally referred to as
Procedures T, L, G.1, G.2, F.l and F.2 respectively. Some
changes have been made to the test methods, so the latest version
of the methods, which is included as an appendix, should be
consulted when planning CE testing. The draft revisions to date
are summarized below.
First, Appendix B, section 1.4, Sampling requirements ,
originally contained a requirement that the sampling time for
each TTE and BE test run should be at least 8 hours, unless
otherwise approved. This provision has been revised to specify
that each TTE or BE run shall cover at least one complete
production cycle and must be at least 3 hours long. The sampling
time for each run need not exceed 8 hours, even if the production
cycle has not been completed. The maximum allowable time for a
test run is 24 hours. Alternative sampling times would be
subject to EPA approval.
Second, a new section on audit sample procedures has been
added to Procedure L, VOC Input .
3

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Third, the directions for analysis audits have been expanded
(newly added for Procedure L) to include information on audit
sample availability and reporting directions for audit results.
Next, a new method, Method 204F (called the distillation
approach), has been added for measuring liquid VOC input, as an
alternative to Procedure L.
Finally, Procedures T, Criteria for and Verification of a
Permanent or Temporary Total Enclosure , and F.2, Fugitive VOC
Emissions from Building Enclosures , have been revised to clarify
the acceptability criteria of a BE and to clarify which openings
in a building constitute an exhaust point or a natural draft
opening (NDO)
Table 2—i lists the protocols, their associated EPA
recommended CE test methods, and the formulas for calculating CE.
Table 2-2 lists the EPA recommended CE test methods with the full
title of each. The PTE, TTE, and BE are discussed further in
Sections 2.1 through 2.3, respectively.
4

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TABLE
2—1.
Protocols
EPA recommended CE test methods 8
CE
formula
Enclosure
verification
Liquid
input
(L)
Captured
emissions
(G)
Fugitive
emissions
(F) or
(FR)
PTE
M204
NA
NA
NA
Assume
100%
TTE --
gas/gas
M204
NA
M204B or
M204C
M204D
G/(G+F)
TTE --
liquid/gas
M204
M204A or
M204F
NA
M204D
(L—F)/L
BE ——
gas/gas
M204
NA
M204B or
M204C
M204E
G/(G+FB)
BE ——
liquid/gas
M204
M204A or
M204F
NA
M204E
(L—F 8 )/L
aM = EPA Method; NA = not applicable
5

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TABLE 2-2.
Method 204
Criteria for and Verification of a Permanent
or Temporary Total Enclosure
Method 204A
Volatile Organic Compounds Content in Liquid
Input Stream
Method 204B
Volatile Organic Compounds Emissions in
Captured Stream
Method 204C
Volatile Organic Compounds Emissions in
Captured Stream (Dilution Technique)
Method 204D
Volatile Organic Compounds Emissions in
Fugitive Stream from Temporary Total
Enclosure
Method 204E
Volatile Organic Compounds Emissions in
Fugitive Stream from Building Enclosure
Method 204F
Volatile Organic Compounds Content in Liquid
Input Stream (Distillation Approach)
2.1. Permanent Total Enclosure
Method 204 lists the PTE requirements and the procedures for
verifying that an enclosure qualifies as a PTE. A PTE is an
enclosure that completely surrounds a source such that all
volatile organic compound (VOC) emissions are contained and
directed to a control device. If an enclosure meets the criteria
listed below then the enclosure is a PTE and the CE for the
source may be assumed to be 100 percent and need not be measured.
The PTE criteria are as follows:
1. Any NDO shall be at least 4 equivalent opening diameters
from each VOC—emitting point. An “equivalent diameter” is the
diameter of a circle that has the same area as the opening. The
equation for an equivalent diameter (ED) is:
6

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ED = (4 area)O. 5 Eq. 1
For a circular NDO, this equation simply reduces to the diameter
of the opening.
2. The total area of all NDO’s shall not exceed 5 percent
of the surface area of the enclosure’s walls, floor, and ceiling.
3. The average face velocity (FV) of air through all NDO’s
shall be at least 200 ft/mm. The direction of air flow through
all NDO’s shall be into the enclosure.
4. All access doors and windows whose areas are not
included as NDO’s and are not included in the calculation of
FV shall be closed during routine operation of the process. 6
5. All the exhaust gases from the enclosure are directed to
the control device.
If the PTE criteria are not met, then CE must be measured.
2.2 Temporary Total Enclosure
Method 204 lists the TTE requirements and the test
procedures for verifying that an enclosure qualifies as a TTE. A
TTE is an enclosure temporarily installed specifically for the CE
test. 4 For an enclosure to qualify as a TTE, the criteria listed
below must be met. These five criteria ensure that all VOC’s
are captured for measurement while minimizing disruption of
the capture normally achieved by the existing capture device(s)
in the absence of a TTE. 4 The TTE criteria are as follows:
7

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1. Any NDO shall be at least 4 equivalent opening diameters
from each VOC-emitting point. An “equivalent diameter” is the
diameter of a circle that has the same area as the opening. The
equation for an equivalent diameter (ED) is:
ED = (4 area)O .S Eq. 1
For a circular NDO, this equation simply reduces to the diameter
of the opening.
2. The total area of all NDO’s shall not exceed 5 percent
of the surface area of the enclosure’s walls, floor, and ceiling.
3. The average face velocity (FV) of air through all NDO’s
shall be at least 200 ft/mm. The direction of air flow through
all NDO’s shall be into the enclosure.
4. All access doors and windows whose areas are not
included as I’IDO’s and are not included in the calculation of
FV shall be closed during routine operation of the process. 4
5. Any exhaust point from the TTE shall be at least
4 equivalent duct or hood diameters from each NDO.
Two protocols may be used to measure the CE using a TTE, a
gas/gas protocol or a liquid/gas protocol. The associated test
methods and CE formula for each protocol are listed in Table 2—1.
2.3 Building Enclosure
Building enclosure protocols involve using the building that
houses the process as the enclosure. First, one must verify that
the BE meets the requirements for a TTE that are presented in
8

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Method 204. Then, using the procedures specified in Method 204E,
one must identify all the emission points from the building
enclosure (e.g., roof exhausts, windows, etc.) and determine
which emission points must be tested. Test procedures are given
for determining the flow rate and VOC concentration in the
exhaust from each of the various emission test points.
As with a TTE, two BE protocols may be used to measure the
CE, a gas/gas protocol or a liquid/gas protocol. The associated
test methods and CE formula for each protocol are listed in
Table 2—1.
3.0 REQUIREMENTS FOR ALTERNATIVE CE PROTOCOLS
To provide flexibility, EPA has developed two sets of
approval criteria which, when either of them is met, allow the
use of the data obtained with the alternative protocols and test
methods for determining CE. Alternative CE protocols and test
methods must meet either the requirements of the data quality
objective (DQO) approach or the lower confidence limit (LCL)
approach and the additional criteria presented below. The DQO,
LCL, and additional criteria are described in Sections 3.1, 3.2,
and 3.3, respectively. The recommended reporting requirements
for using alternative CE protocols and test methods are discussed
in Section 3.4.
NOTE: Although the Method 204 test series was developed for
TTE and BE testing, the same procedures can also be used in an
alternative CE test method. For example, a traditional
liquid/gas mass balance test could employ Method 204F to measure
9

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liquid VOC input and Method 204 B to measure captured VOC
emissions.
3.1 Data Quality Objective Approach
The purpose of the DQO is to allow sources to use
alternative CE test procedures while ensuring reasonable
precision consistent with pertinent requirements of the Clean Air
Act. The DQO requires that the width of the 2-sided 95 percent
confidence interval of the mean measured value be less than or
equal to 10 percent of the mean measured value (see Figure 1).
This ensures that 95 percent of the time, when the DQO is met,
the actual CE value will be ±5 percent of the mean measured value
(assuming that the test protocol is unbiased).
UCL 95
“a” < 0.05 Xag
x 95% confidence limit
“a” < 0.05 Xag
LCL 95
Figure 1. Deviation around 95 percent (2-sided)
confidence interval.
Where:
a = distance from the average measured CE value to the
endpoints of the 95-percent (2—sided) confidence
interval that meets the DQO for the measured value.
LCL 95 = Lower 95 percent confidence limit
UCL 95 = Upper 95 percent confidence limit
Xavg Average CE value.
The DQO calculation is as follows:
10

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= Eq. 2
Xavg
t 0 975 S
a= Eq. 3
where:
a = distance from the average measured CE value to
the endpoints of the 95-percent (2-sided) confidence
interval for the measured value.
n = number of valid test runs.
P = DQO indicator statistic, distance from the
average measured CE value to the endpoints of
the 95-percent (2-sided) confidence interval,
expressed as a percent of the average
measured CE value.
s = sample standard deviation.
t 0975 = t—value at the 95—percent confidence level (see
Table 3-1).
X 8 v 9 = average measured CE value (calculated from all valid
test runs).
x = the CE value calculated from the ith test run.
The sample standard deviation and average CE value are
calculated as follows:
n
I
Z x 1 — Xavg ) Eq. 4
s=
n- i
Xavg = Eq. 5
11

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Individual CE values greater than 105 percent are invalid
and cannot be used to calculate the average CE and DQO. The
source must have 3 valid test runs to use the DQO approach. The
DQO is achieved when P  5 percent. In order to meet this
objective, facilities may have to conduct more than three test
runs. Examples of calculating F, given a finite number of test
runs, are shown below.
Number of
test runs, n
t
t 000
Number of
test runs, n
t 97
2
12.706
3.078
12
2.201
1.363
3
4.303
1.886
13
2.179
1.356
4
3.182
1.638
14
2.160
1.350
5
2.776
1.533
15
2.145
1.345
6
2.571
1.476
16
2.131
1.341
7
2.447
1.440
17
2.120
1.337
8
2.365
1.415
18
2.110
1.333
9
2.306
1.397
19
2.101
1.330
10
2.262
1.383
20
2.093
1.328
1].
2.228
1.372
21
2.086
1.325
TABLE 3-1. t-values.
Facility A conducted a CE test using a traditional liquid/gas
mass balance and submitted the following results:
Run CE
1 96.1
2 105.0
3 101.2
12

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therefore:
n= 3
t 0975 = 4.30
Xavg = 100.8
S = 4.51
a = ( 4.30) (4.51). . .ii 20 Eq. 6
= 11.2 100 = 11.11 Eq. 7
110.8
Since the facility did not meet the DQO, they ran three more test
runs.
Run CE
4 93.2
5 96.2
6 87.6
The calculations for Runs 1-6 are as follows:
n =6
t 097 = 2.57
)Cavg = 96.6
s = 6.11
a = ( 2.57) (6.11 ) = 6.41 Eq. 8
p = 6.4 lioo = 6.64 Eq.9
96.6
13

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The facility still did not meet the DQO. They ran three more
test runs with the following results:
Run CE
7 92.9
8 98.3
9 91.0
The calculations for Runs 1—9 are as follows:
n=9
t 0975 = 2.31
Xa =
s = 5.33
( 2.31) (5.33 )
a= ___-_______ =4.10 Eq. 10
p = 4 . l oioo = 4.28 Eq. 11
95.7
Based on these results, the average CE from the nine test runs
can be used to determine compliance.
3.2 Lower Confidence Limit Approach
The purpose of the LCL approach is to provide sources, who may be
performing much better than their applicable regulatory
requirement, a screening option by which they can demonstrate
compliance. The approach uses less precise methods and avoids
additional test runs which might otherwise be needed to meet the
DQO while still being assured of correctly demonstrating
compliance. It is designed to reduce “false positive” or so
14

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called “Type II errors” which may erroneously indicate compliance
where more variable test methods are employed. Because it
encourages CE performance greater than that required in exchange
for reduced compliance demonstration burden, the sources that
successfully use the LCL approach could produce emission
reductions beyond allowable emissions. Thus, it could provide
additional benefits to the environment as well.
The LCL 1 approach compares the 80 percent (2-sided) LCL for
the mean measured CE value to the applicable CE regulatory
requirement. The LCL approach requires that either the LCL be
greater than or equal to the applicable CE regulatory requirement
or that the DQO is met. A more detailed description of the LCL
approach follows:
A source conducts an initial series of at least three runs.
The source may choose to conduct additional test runs during the
initial test if it desires. All individual runs resulting in CE
values above 105 percent are invalid and cannot be used in
calculating the average CE and the LCL. If the data using only
the valid test runs meets the DQO, then the average CE value is
used to determine compliance. If the data does not meet the DQO
and the average CE, using all valid test runs, is above
100 percent then the test sequence is considered invalid. At
this point the facility has the option of (a) conducting more
test runs in hopes of meeting the DQO or of bringing the average
CE for all test runs below 100 percent or (b) discarding all
previous test data and retesting. (The purpose of this
2.5

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requirement is to protect against test methods which may be
inherently biased high. This is important because it is
theoretically impossible to have a CE greater than 100 percent
and the LCL approach only looks at the lower end variability of
the test results. This is different from the DQO which allows
average CE values up to 105 percent because the DQO sets both
upper and lower limits on test variability.] At any point during
testing when the results meet the DQO and the average CE is less
than 105 percent, the average CE can be used for demonstrating
compliance with the applicable regulatory requirement.
Similarly, if the average CE is below 100 percent then the LCL
can be used for demonstrating compliance with the applicable
regulatory requirement without regard to the DQO.
The LCL is calculated at a 80 percent (two—sided) confidence
level as follows:
t S
LC =Xa ,g 0.90 Eq. 12
where:
LC 1 = LCL at a 80 percent (two-sided) confidence level.
n = number of valid test runs.
s = sample standard deviation.
t 090 = t-value at the 80—percent (two—sided) confidence
level (see Table 3—1).
x = average measured CE value (calculated from all valid
test runs).
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The resulting LC 1 is compared to the applicable CE
regulatory requirement. If LC 1 exceeds (i.e. is higher than) the
applicable regulatory requirement, then a facility is in initial
compliance. However, if the LC 1 is below the CE requirement,
then the facility must conduct additional test runs. After this
point the test results will be evaluated not only looking at the
LCL but also the DQO of ±5 percent of the mean at a 95 percent
confidence level. If the test results with the additional test
runs meet the DQO before the LCL exceeds the applicable CE
regulatory requirement, then the average CE value will be
compared to the applicable CE regulatory requirement for
determination of compliance.
If there is no specific CE requirement in the applicable
regulation, then the applicable CE regulatory requirement is
determined based on the applicable regulation and an acceptable
destruction efficiency test. If the applicable regulation
requires daily compliance and the latest CE compliance
demonstration was made using the LCL approach, then the
calculated LC,, will be the highest CE value which a facility is
allowed to claim until another CE demonstration test is
conducted. This last requirement is necessary to assure both
sufficiently reliable test results in all circumstances and the
potential environmental benefits referenced above.
An example of calculating the LCL is shown below.
Facility B’s applicable regulatory requirement is 85 percent CE.
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Facility B conducted a CE test using a traditional liquid/gas
mass balance and submitted the following results:
Run CE
1 94.2
2 97.6
3 90.5
therefore:
n=3
t 090 = 1.886
Xa = 94.1
S = 3.55
Lc94.1-- ’ 886355 9O.23 Eq. 13
Since the LC 1 of 90.23 percent is above the applicable regulatory
requirement of 85 percent then the facility is in compliance.
The facility must continue to accept the LC 1 of 90.23 percent as
its CE value until a new series of valid tests is conducted.
3.3 Additional Criteria
The Office of Air Quality Planning and Standards (OAQPS) has
developed an additional set of criteria that must be incorporated
into alternative CE protocols and associated test methods in
order for them to be approved. The following criteria apply:
1. A CE test shall consist of at least three sampling runs.
Each test run shall be at least 20 minutes long. The sampling
time for each run shall not exceed 24 hours.
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2. All test runs must be separate and independent. For
example, liquid VOC input and output must be determined
independently for each run. The final liquid VOC sample from one
run cannot be the initial sample for another run. In addition,
liquid input for an entire day cannot be apportioned among test
runs based on production.
3. Composite liquid samples will not be permitted to obtain
an “average composition” for a test run. For example, separate
initial and final coating samples must be taken and analyzed for
each run; initial and final samples cannot be combined prior to
analysis to derive an “average composition” for the test run.
4. All individual test runs that result in a CE of greater
than 105 percent are invalid and must be discarded. A test must
consist of at least 3 valid test runs.
5. If the source can demonstrate to the regulatory agency
that a run should not be considered due to an identified testing
or analysis error such as spillage of part of the sample during
shipping or an upset or improper operating conditions that is not
considered part of normal operation then the test result for that
individual run may be discarded. This limited exception allows
sources to discard as “outliers” certain individual runs without
replacing them with a valid run so long as the facility has at
least 3 valid test runs to use when calculating its DQO or LCL.
This exception is limited solely to test runs involving the types
of errors identified above.
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6. All valid test runs that are conducted must be included
in the average CE determination. The individual CE results and
average CE results cannot be truncated (i.e. 105 percent cannot
be reported as 100+ percent).
7. For the DQO approach the average CE for the test program
cannot be greater than 105 percent.
8. Alternative test methods for measuring VOC concentration
must include a three—point calibration of the gas analysis
instrument in the expected concentration range.
3.4 Reporting Requirements for Alternative CE Protocols
If a facility chooses to use alternative CE protocols and
test methods, the following information should be submitted with
each test report to the appropriate regulatory agency:
1. A copy of all alternative test methods, including any
changes to EPA reference methods, QA/QC procedures and
calibration procedures.
2. A table with information on each liquid sample,
including the samp]e identification, where and when the sample
was taken, and the voc content of the sample;
3. The coating usage for each test run (for protocols in
which the liquid VOC input is to be determined);
4. The quantity of captured VOC measured for each test run;
5. The CE calculations and results for each test run;
6. The DQO or LCL calculations and results; and
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7. The Q /QC results, including information on calibrations
(e.g., how often the instruments were calibrated, the calibration
results, and information on calibration gases, if applicable).
3.5 Recordkeeping Requirements for Alternative CE Protocols.
A record should be kept at the facility of all raw data
recorded during the test in a suitable form for submittal to the
appropriate regulatory authority upon request.
4.0 MULTIPLE LINE TESTING
4.1 Aggregate Sampling
A potential way to add further flexibility to determining CE
is to utilize aggregate sampling using a building enclosure.
This involves testing all regulated lines in the building
enclosure simultaneously. It must be noted that this technique
may not be feasible for all facilities. The applicable
regulations must be written to allow aggregate sampling and a
standard must be set for the building as a regulated entity. The
building must be able to meet the criteria in Method 204 for a
building enclosure and the building enclosure protocol described
in Section 2.3 must be followed.
4.2 Multiple Lines With Common Control Device
A second potential way to add further flexibility for
determining CE is to test multiple lines sharing a common control
device simultaneously. It must be noted that this technique may
not be feasible for all facilities. The applicable regulations
must be written to allow multiple line testing. The facility
must also meet additional guidelines as follows:
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1. The multiple lines must share a common control device.
2. Multiple line testing may be performed using recommended
EPA protocols and test methods or alternative CE protocols and
test methods. The alternative protocols must meet the
requirements of Section 3.0.
3. The lines that are tested in combination are considered
to be in compliance only if the CE determined for the combination
of lines meets the most stringent CE required for any individual
line.
5.0 REFERENCES
1. Memorandum and attachments from Seitz, J.S., EPA/SSCD, to
Regional Office air division directors. April 16, 1990.
Guidelines for developing a State protocol for the
measurement of capture efficiency.
2. Office of the Federal Register. Control strategy: Ozone
control measures for Cook, DuPage, Kane, Lake, McHenry and
Will Counties. 40 CFR 52.741. Washington, DC. U. S.
Government Printing Office. 1992.
3. OAQPS. Model Volatile Organic Compound Rules for Reasonably
Available Control Technology. U. S. Environmental Protection
Agency. Research Triangle Park, NC. June 1992. pp. 340—
349.
4. The Measurement Solution: Using a Temporary Total Enclosure
for Capture Efficiency Testing. EPA—450/4—9].—020. August
1991. Research Triangle Park, NC.
5. Mendenhall, W. Introduction to Probability and Statistics,
Third Edition. Belmont, California. Duxbury Press. 1971.
p. 419.
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APPENDIX
23

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nE
u , I 4
METHOD 204--CRITERIA FOR AND VERIFICATION OF A PERMANENT OR
TEMPORARY TOTAL ENCLOSURE
1.. INTRODUCTION
1.1 Applicability. This procedure is used to determine
whether a permanent or temporary enclosure meets the criteria for
a total enclosure. An existing building may be used as a
temporary or permanent enclosure as long as it meets the
appropriate criteria discribed in this method.
1.2 Principle. An enclosure is evaluated against a set of
criteria. If the criteria are met and if all the exhaust gases
from the enclosure are ducted to a control device, then the
volatile organic compounds (VOC) capture efficiency (CE) is
assumed to be 100 percent, and CE need not be measured. However,
if part of the exhaust gas stream is not ducted to a control
device, CE must be determined.
1.3 Note. An evaluation of the proposed building materials
is recommended to minimize any potential hazards.
2. DEFINITIONS
2.1 Natural Draft Opening (NDO). Any permanent opening in
the enclosure that remains open during operation of the facility
and is not connected to a duct in which a fan is installed.
2.2 Permanent Total Enclosure (PE). A permanently installed
enclosure that completely surrounds a source of emissions such
that all VOC emissions are captured and contained for discharge
to a control device.
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2.3 Temporary Total Enclosure (TTE). A temporarily
installed enclosure that completely surrounds a source of
emissions such that all fugitive voc emissions are captured and
contained for discharge through ducts that allow for the accurate
measurement of fugitive VOC emissions.
2.4 Building Enclosure (BE). An existing building that is
used as a TTE.
3. CRITERIA FOR TEMPORARY ¶1 OTAL ENCLOSURE
3.1 Any NDO shall be at least four equivalent opening
diameters from each voc emitting point unless otherwise specified
by the Administrator.
3.2 Any exhaust point from the enclosure shall be at least
four equivalent duct or hood diameters from each NDO.
3.3 The total area of all NDO’s shall not exceed 5 percent
of the surface area of the enclosure’s four walls, floor, and
ceiling.
3.4 The average facial velocity (FV) of air through all
NDO’s shall be at least 3,600 rn/hr (200 fpm). The direction of
air flow through all NDO’s shall be into the enclosure.
3.5 All access doors and windows whose areas are not
included in Section 3.3 and are not included in the calculation
in Section 3.4 shall be closed during routine operation of the
process.
4. CRITERIA FOR A PERK NENT TOTAL ENCLOSURE
4.1 Same as Sections 3.1 and 3.3 through 3.5.
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4.2 All VOC emissions must be captured and contained for
discharge through a control device.
5. PROCEDURE
5.1 Determine the equivalent diameters of the NDO’s and
determine the distances from each VOC emitting point to all
NDO’s. Determine the equivalent diameter of each exhaust duct or
hood and its distance to all NDO’s. Calculate the distances in
terms of equivalent diameters. The number of equivalent
diameters shall be at least four.
5.2 Measure the total area (AT) of the enclosure and the
total area (AN) of all NDO’s in the enclosure. Calculate the NDO
to enclosure area ratio (NEAR) as follows:
A
NEAR = Eq. 204—1
AT
The NEAR must be 0.05.
5.3 Measure the volumetric flow rate, corrected to standard
conditions, of each gas stream exiting the enclosure through an
exhaust duct or hood using EPA Method 2. In some cases (e.g.,
when the building is the enclosure), it may be necessary to
measure the volumetric flow rate, corrected to standard
conditions, of each gas stream entering the enclosure through a
forced makeup air duct using Method 2. Calculate FV using the
following equation:
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FV = - Eq. 204—2
where:
Q 0 = the sum of the volumetric flow from all gas streams
exiting the enclosure through an exhaust duct or
hood.
Q 1 = the sum of the volumetric flow from all gas streams
into the enclosure through a forced makeup air duct;
zero, if there is no forced makeup air into the
enclosure.
= total area of all NDO’s in enclosure.
The FV shall be at least 3,600 rn/hr (200 fprn).
Alternatively, measure the pressure differential across the
enclosure. A pressure drop of 0.0075 mit ’ Hg (0.004 in. H O)
corresponds to an FV of 3,600 rn/hr (200 fprn).
5.4 Verify that the direction of air flow through all NDO’s
is inward. Streamers, smoke tubes, or tracer gases may be used.
Strips of plastic wrapping film have also been found to be
effective. Monitor the direction of air flow for at least
1 hour, with checks made no more than 10 minutes apart.
6. QUALITY ASSURM CE
6.1 The success of this method lies in designing the TTE to
simulate the conditions that exist without the TTE (i.e., the
effect of the TTE on the normal flow patterns around the affected
facility or the amount of fugitive VOC emissions should be
minimal). The TTE must enclose the application stations, coating
reservoirs, and all areas from the application station to the
oven. The oven does not have to be enclosed if it is under
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negative pressure. The NDO’s of the temporary enclosure and a
fugitive exhaust fan must be properly sized and placed.
6.2 Estimate the ventilation rate of the TTE that best
simulates the conditions that exist without the TTE (i.e., the
effect of the TTE on the normal flow patterns around the affected
facility or the amount of fugitive VOC emissions should be
minimal). Figure 2 04-1 may be used as an aid. Measure the
concentration(CG) and flow rate ( G) of the captured gas stream,
specify a safe concentration (CF) for the fugitive gas stream,
estimate the CE, and then use the plot in Figure 204-1 to
determine the volumetric flow rate of the fugitive gas stream
(QF)• A fugitive VOC emission exhaust fan that has a variable
flow control is desirable.
6.3 Monitor the concentration of VOC into the capture device
without the TTE. To minimize the effect of temporal variation on
the captured emissions, the baseline measurement should be made
over as long a time period as practical. However, the process
conditions must be the same for the measurement in Section 6.5 as
they are for this baseline measurement. This may require short
measuring times for this quality control check before and after
the construction of the TTE.
6.4 After the TTE is constructed, monitor the VOC
concentration inside the TTE. This concentration shall not
continue to increase, and must not exceed the safe level
according to Occupational Safety and Health Administration
requirements for permissible exposure limits. An increase
5

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in VOC concentration indicates poor TTE design or poor capture
efficiency.
6.5 Monitor the concentration of VOC into the capture device
with the TTE. To limit the effect of the TTE on the process, the
VOC concentration with and without the TTE must be within 10
percent. If the measurements do not agree, adjust the
ventilation rate from the TTE until they agree within 10 percent.
6

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-
V V
I V_ V
____ I
- V ____________
— —V
I I I
— V
0.34
0.03
0.02
0.01
Io1ur ethc flcw -a e of Fugit veE.nissior s Exhaust S r eam
oc.
Volumetric Plowrace of Gas Stream D ltvered to t ie C ntrol Device QG
Figure 204-1. The crumpler chart.
.7
‘ —I
V)
:
L
-J
—
—‘
Ct >
—

>1 L
—I
z- i i
L (J
C t
CI 0

L?t c)
V \
N
.d.
0.09
0.5
2.0 2. 3.0 3.5

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METHOD 204A--VOLATILE ORGANIC COMPOUNDS CONTENT IN LIQUID
INPUT STREAM
1. INTRODUCTION
1.1 Applicability. This procedure is applicable for
determining the input of VOC. It is intended to be used in
the development of liquid/gas protocols for determining VOC CE
for surface coating and printing operations.
1.2 Principle. The amount of VOC introduced to the process
(L) is the sum of the products of the weight (W) of each VOC
containing liquid (ink, paint, solvent, etc.) used and its VOC
content (V). A sample of each VOC containing liquid is analyzed
with a flame ionization analyzer (FIA) to determine V.
1.3 Estimated Measurement Uncertainty. The measurement
uncertainties are estimated for each VOC containing liquid as
follows: w = ±2.0 percent and V = ±12.0’percent. Based on these
numbers, the probable uncertainty for L is estimated at about
±12.2 percent for each VOC containing liquid.
1.4 Sampling Requirements. A CE test shall consist of at
least three sampling runs. Each run shall cover at least one
complete production cycle, but shall be at least 3 hours long.
The sampling time for each run need not exceed 8 hours, even if
the production cycle has not been completed. Alternative
sampling times may be used with the approval of the
Administrator.
1.5 Notes. Because this procedure is often applied in
highly explosive areas, caution and care should be exercised in
choosing, installing, and using the appropriate equipment.
8

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Mention of trade names or company products does not constitute
endorsement. All gas concentrations (percent, ppm) are by
volume, unless otherwise noted.
2 • APPARATUS AND REAGENTS
2.1 Liquid Weight.
2.1.1 Balances/Digital Scales. To weigh drums of VOC
containing liquids to within 0.2 lb.
2.1.2 Volume Measurement Apparatus (Alternative). Volume
meters, flow meters, density measurement equipment, etc., as
needed to achieve the same accuracy as direct weight
measurements.
2.2 VOC Content (FIA Technique). The liquid sample analysis
system is shown in Figures 204A—l and 204A-2. The following
equipment is required:
2.2.1 Sample Collection Can. An appropriately-sized metal
can to be used to collect VOC containing materials. The can must
be constructed in such a way that it can be grounded to the
coating container.
2.2.2 Needle Valves. To control gas flow.
2.2.3 Regulators. For carrier gas and calibration gas
cylinders.
2.2.4 Tubing. Teflon or stainless steel tubing with
diameters and lengths determined by connection requirements of
equipment. The tubing between the sample oven outlet and the FIA
shall be heated to maintain a temperature of 120 ± 5°C.
9

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2.2.5 Atmospheric Vent. A tee and 0- to 0.5-liter/mm
rotameter placed in the sampling line between the carrier gas
cylinder and the VOC sample vessel to release the excess carrier
gas. A toggle valve placed between the tee and the rotameter
facilitates leak tests of the analysis system.
2.2.6 Thermometer. Capable of measuring the temperature of
the hot water bath to within 1°C.
2.2.7 sample Oven. Heated enclosure, containing calibration
gas coil heaters, critical orifice, aspirator, and other liquid
sample analysis components, capable of maintaining a temperature
of 120 ± 5°C.
2.2.8 Gas Coil Heaters. Sufficient lengths of stainless
steel or Teflon tubing to allow zero and calibration gases to be
heated to the sample oven temperature before entering the
critical orifice or aspirator.
2.2.9 Water Bath. Capable of heating and maintaining a
sample vessel temperature of 100 ± 5°C.
2.2.10 Analytical Balance. To measure ±0.001 g.
2.2.11 Disposable Syringes. 2-cc or 5—cc.
2.2.12 Sample Vessel. Glass, 40—mi septum vial. A separate
vessel is needed for each sample.
2.2.13 Rubber Stopper. Two—hole stopper to accommodate
3.2-mm (1/8-in.) Teflon tubing, appropriately sized to fit the
opening of the sample vessel. The rubber stopper should be
wrapped in Teflon tape to provide a tighter seal and to prevent
any reaction of the sample with the rubber stopper.
10

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Alternatively, any leak—free closure fabricated of nonreactive
materials and accommodating the necessary tubing fittings may be
used.
2.2.14 Critical Orifices. Calibrated critical orifices
capable of providing constant flow rates from 50 to 250 ml/min at
known pressure drops. Sapphire orifice assemblies (available
from O’Keefe Controls Company) and glass capillary tubing have
been found to be adequate for this application.
2.2.15 Vacuum Gauge. Zero to 760-mm (0— to 30-in.) Hg
U—Tube manometer or vacuum gauge.
2.2.16 Pressure Gauge. Bourdon gauge capable of measuring
the maximum air pressure at the aspirator inlet (e.g., 100 psig).
2.2.17 Aspirator. A device capable of generating sufficient
vacuum at the sample vessel to create critical flow through the
calibrated orifice when sufficient air pressure is present at the
aspirator inlet. The aspirator must also provide sufficient
sample pressure to operate the FIA. The sample is also mixed
with the dilution gas within the aspirator.
2.2.18 soap Bubble Meter. Of an appropriate size to
calibrate the critical orifices in the system.
2.2.19 Organic Concentration Analyzer. An FIA with a span
value of 1.5 times the expected concentration as propane;
however, other span values may be used if it can be demonstrated
that they would provide more accurate measurements. The FIA
instrument should be the same instrument used in the gaseous
analyses adjusted with the same fuel, combustion air, and sample
11

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back-pressure (flow rate) settings. The system shall be capable
of meeting or exceeding the following specifications:
2.2.19.1 Zero Drift. Less thar ±3.0 percent of the span
value.
2.2.19.2 Calibration Drift. Less than ±3.0 percent of the
span value.
2.2.19.3 Calibration Error. Less than ±5.0 percent of the
calibration gas value.
2.2.20 Integrator/Data Acquisition System. An analog or
digital device or computerized data acquisition system used to
integrate the FIA response or compute the average response and
record measurement data. The minimum data sampling frequency for
computing average or integrated values is one measurement value
every 5 seconds. The device shall be capable of recording
average values at least once per minute.
2.2.21 Chart Recorder (Optional). A chart recorder or
similar device is recommended to provide a continuous analog
display of the measurement results during the liquid sample
analysis.
2.2.22 Calibration and Other Gases. Gases used for
calibration, fuel, and combustion air (if required) are contained
in compressed gas cylinders. All calibration gases shall be
traceable to National Institute of Standards and Technology
standards and shall be certified by the manufacturer to
±1 percent of the tag value. Additionally, the manufacturer of
the cylinder should provide a recommended shelf life for each
calibration gas cylinder over which the concentration does not
12

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change more than ±2 percent from the certified value. For
calibration gas values not generally available, alternative
methods for preparing calibration gas mixtures, such as dilution
systems, may be used with the approval of the Administrator.
2.2.22.1 Fuel. The FIA manufacturer’s fuel should be used.
A 40 percent H 2 /60 percent He or 40 percent 112/60 percent N 2 gas
mixture is recommended to avoid an oxygen synergism effect that
reportedly occurs when oxygen concentration varies significantly
from a mean value.
2.2.22.2 Carrier Gas. High purity air with less than 1 ppm
of organic material (as propane) or less than 0.1 percent of the
span value, whichever is greater.
2.2.22.3 FIA Linearity Calibration Gases. Low-, mid-, and
high-range gas mixture standards with nominal propane
concentrations of 20-30, 45-55, and 70-80 percent of the span
value in air, respectively. Other calibration values and other
span values may be used if it can be shown to the Administrator’s
satisfaction that more accurate measurements would be achieved.
2.2.22.4 System Calibration Gas. Gas mixture standard
containing propane in air, approximating the undiluted VOC
concentration expected for the liquid samples.
3. DETERMINATION OF LIQUID INPUT WEIGHT
3.1 Weight Difference. Determine the amount of material
introduced to the process as the weight difference of the feed
material before and after each sampling run. In determining the
total VOC containing liquid usage, account for:
(a) The initial (beginning) VOC containing liquid mixture.
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(b) Any solvent added during the test run.
(C) Any coating added during the test run.
(d) Any residual VOC containing liquid mixture remaining at
the end of the sample run.
3.1.1 Identify all points where VOC containing liquids are
introduced to the process. To obtain an accurate measurement of
VOC containing liquids, start with an empty fountain (if
applicable). After completing the run, drain the liquid in the
fountain back into the liquid drum (if possible) and weigh the
drum again, weigh the voc containing liquids to ±0.5 percent of
the total weight (full) or ±0.1 percent of the total weight of
VOC containing liquid used during the sample run, whichever is
less. If the residual liquid cannot be returned to the drum,
drain the fountain into a preweighed empty drum to determine the
final weight of the liquid.
3.1.2 If it is not possible to measure a single
representative mixture, then weigh the various components
separately (e.g., if solvent is added during the sampling run,
weigh the solvent before it is added to the mixture). If a fresh
drum of VOC containing liquid is needed during the run, then
weigh both the empty drum and fresh drum.
3.2 Volume Measurement (Alternative). If direct weight
measurements are not feasible, the tester may use volume meters
and flow rate meters (and density measurements) to determine the
weight of liquids used if it can be demonstrated that the
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technique produces results equivalent to the direct weight
measurements. If a single representative mixture cannot be
measured, measure the components separately.
4. DETERMINATION OF VOC CONTENT IN INPUT LIQUIDS
4.2. collection of Liquid Samples.
4.1.1 Collect a 100-mi or larger sample of the VOC
containing liquid mixture at each application location at the
beginning and end of each test run. A separate sample should be
taken of each VOC containing liquid added to the application
mixture during the test run. If a fresh drum is needed during
the sampling run, then obtain a sample from the fresh drum.
4.1.2 When collecting the sample, ground the sample
container to the coating drum. Fill the sample container as
close to the rim as possible to minimize the amount of headspace.
4.1.3 After the sample is collected, seal the container so
the sample cannot leak out or evaporate.
4.1.4 Label the container to clearly identify the contents.
4.2 Liquid Sample VOC Content.
4.2.1 Assemble the liquid VOC content analysis system as
shown in Figure 204A-1.
4.2.2 Permanently identify all of the critical orifices that
may be used. Calibrate each critical orifice under the expected
operating conditions (i.e., sample vacuum and temperature)
against a volume meter as described in Section 5.3.
4.2.3 Label and tare the sample vessels (including the
stoppers and caps) and the syringes.
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4.2.4 Install an empty sample vessel and perform a leak test
of the system. Close the carrier gas valve and atmospheric vent
and evacuate the sample vessel to 250 mm (10 in.) Hg absolute or
less using the aspirator. Close the toggle valve at the inlet to
the aspirator and observe the vacuum for at least 1 minute. If
there is any change in the sample pressure, release the vacuum,
adjust or repair the apparatus as necessary, and repeat the leak
test.
4.2.5 Perform the analyzer calibration and linearity checks
according to the procedure in Section 5.1. Record the responses
to each of the calibration gases and the back—pressure setting of
the FIA.
4.2.6 Establish the appropriate dilution ratio by adjusting
the aspirator air supply or substituting critical orifices.
Operate the aspirator at a vacuum of at least 25 mm (1 in.) Hg
greater than the vacuum necessary to achieve critical flow.
Select the dilution ratio so that the maximum response of the FIA
to the sample does not exceed the high-range calibration gas.
4.2.7 Perform system calibration checks at two levels by
introducing compressed gases at the inlet to the sample vessel
while the aspirator and dilution devices are operating. Perform
these checks using the carrier gas (zero concentration) and the
system calibration gas. If the response to the carrier gas
exceeds ±0.5 percent of span, clean or repair the apparatus and
repeat the check. Adjust the dilution ratio as necessary to
achieve the correct response to the upscale check, but do not
adjust the analyzer calibration. Record the identification of
16

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the orifice, aspirator air supply pressure, FIA back—pressure,
and the responses of the FIA to the carrier and system
calibration gases.
4.2.8 After completing the above checks, inject the system
calibration gas for approximately 10 minutes. Time the exact
duration of the gas injection using a stopwatch. Determine the
area under the FIA response curve and calculate the system
response factor based on the sample gas flow rate, gas
concentration, and the duration of the injection as compared to
the integrated response using Equations 204A-2 and 204A-3.
4.2.9 Verify that the sample oven and sample line
temperatures are 120 ± 5°C and that the water bath temperature is
100 ± 5°C.
4.2.10 Fill a tared syringe with approximately 1 g of the
VOC containing liquid and weigh it. Transfer the liquid to a
tared sample vessel. Plug the sample vessel to minimize sample
loss. Weigh the sample vessel containing the liquid to determine
the amount of sample actually received. Also, as a quality
control check, weigh the empty syringe to determine the amount of
material delivered. The two coating sample weights should agree
within 0.02 g. If not, repeat the procedure until an acceptable
sample is obtained.
4.2.11 Connect the vessel to the analysis system. Adjust
the aspirator supply pressure to the correct value. Open the
valve on the carrier gas supply to the sample vessel and adjust
it to provide a slight excess flow to the atmospheric vent. As
soon as the initial response of the FIA begins to decrease,
17

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immerse the sample vessel in the water bath. (Applying heat to
the sample vessel too soon may cause the FIA response to exceed
the calibrated range of the instrument and, thus, invalidate the
analysis.)
4.2.12 Continuously measure and record the response of the
FIA until all of the volatile material has been evaporated from
the sample and the instrument response has returned to the
baseline (i.e., response less than 0.5 percent of the span
value). Observe the aspirator supply pressure, FIA
back-pressure, atmospheric vent and other system operating
parameters during the run; repeat the analysis procedure if any
of these parameters deviate from the values established during
the system calibration checks in Section 4.2.7. After each
sample, perform the drift check described in Section 5.2. If the
drift check results are acceptable, calculate the VOC content of
the sample using the equations in Section 7. Integrate the area
under the FIA response curve, or determine the average
concentration response and the duration of sample analysis.
5. CALIBRATION AND QUALITY ASSURANCE
5.1 FIA Calibration and Linearity Check. Make necessary
adjustments to the air and fuel supplies for the FIA and ignite
the burner. Allow the FIA to warm up for the period recommended
by the manufacturer. Inject a calibration gas into the
measurement system and adjust the back-pressure regulator to the
value required to achieve the flow rates specified by the
manufacturer. Inject the zero- and the high-range calibration
18

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gases and adjust the analyzer calibration to provide the proper
responses. Inject the low- and mid-range gases and record the
responses of the measurement system. The calibration and
linearity of the system are acceptable if the responses for all
four gases are within 5 percent of the respective gas values. If
the performance of the system is not acceptable, repair or adjust
the system and repeat the linearity check. Conduct a calibration
and linearity check after assembling the analysis system and
after a major change is made to the system.
5.2 systems Drift Checks. After each sample, repeat the
system calibration checks in Section 4.2.7 before any adjustments
to the FIA or measurement system are made. If the zero or
calibration drift exceeds ±3 percent of the span value, discard
the result and repeat the analysis.
5.3 Critical Orifice Calibration.
5.3.1 Each critical orifice must be calibrated at the
specific operating conditions under which it will be used.
Therefore, assemble all components of the liquid sample analysis
system as shown in Figure 204A-3. A stopwatch is also required.
5.3.2 Turn on the sample oven, sample line, and water bath
heaters, and allow the system to reach the proper operating
temperature. Adjust the aspirator to a vacuum of 380 mm (15 in.)
Hg vacuum. Measure the time required for one soap bubble to move
a known distance and record barometric pressure.
5.3.3 Repeat the calibration procedure at a vacuum of 406 mm
(16 in.) Hg and at 25-mm (1-in.) Hg intervals until three
19

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consecutive determinations provide the same flow rate. Calculate
the critical flow rate for the orifice in ml/inin at standard
conditions. Record the vacuum necessary to achieve critical
flow.
5.4 Audits.
5.4.1 Audit Procedure. Concurrently, analyze the audit
sample and a set of compliance samples in the same manner to
evaluate the technique of the analyst and the standards
preparation. The same analyst, analytical reagents, and
analytical system shall be used both for compliance samples and
the EPA audit sample. If this condition is met, auditing of
subsequent compliance analyses for the same enforcement agency
within 30 days is not required. An audit sample set may not be
used to validate different sets of compliance samples under the
jurisdiction of different enforcement agencies, unless prior
arrangements are made with both enforcement agencies.
5.4.2 Audit Samples and Audit Sample Availability. Audit
samples will be supplied only to enforcement agencies for
compliance tests. The availability of audit samples may be
obtained by writing:
Source Test Audit Coordinator (STAC) (MD-778)
Quality Assurance Division
Atmospheric Research and Exposure Assessment Laboratory
U.S. Environmental Protection Agency
Research Triangle Park, NC 27711
or by calling the STAC at (919) 541-7834. The request for the
audit sample must be made at least 30 days prior to the scheduled
compliance sample analysis.
20

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5.4.3 Audit Results. Calculate the audit sample
concentration according to the calculation procedure described in
the audit instructions included with the audit sample. Fill in
the audit sample concentration and the analyst’s name on the
audit response form included with the audit instructions. Send
one copy to the EPA Regional Office or the appropriate
enforcement agency, and a second copy to the STAC. The EPA
Regional Office or the appropriate enforcement agency will report
the results of the audit to the laboratory being audited.
Include this response with the results of the compliance samples
in relevant reports to the EPA Regional Office or the appropriate
enforcement agency.
6. NOMENCLATURE
AL = area under the response curve of the liquid sample, area
count.
= area under the response curve of the calibration gas,
area count.
C = actual concentration of system calibration gas, ppm
propane.
K = 1.830 x i0 g/(xnl-ppm).
L = total VOC content of liquid input, kg.
ML = mass of liquid sample delivered to the sample vessel, g.
q = flow rate through critical orifice, ml/min.
RF = liquid analysis system response factor, g/area count.
= total gas injection time for system calibration gas
during integrator calibration, mm.
VFJ = final VOC fraction of VOC containing liquid j.
V = initial VOC fraction of VOC containing liquid j.
21

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VAj = VOC fraction of VOC containing liquid j added during the
run.
V = VOC fraction of liquid sample.
WFJ = weight of VOC containing liquid j remaining at end of
the run, kg.
= weight of VOC containing liquid j at beginning of the
run, kg.
WA) = weight of VOC containing liquid j added during the run,
kg.
7. CALCULATIONS
7.1 Total VOC Content of the Input VOC Containing Liquid.
L = W, - EVFJ WFJ + V WAJ Eq. 204A-l
7.2 Liquid Sample Analysis System Response Factor for
Systems Using Integrators, Grams/Area Count.
PF =C q 0$ K Eq. 204A-2
7.3 VOC Content of the Liquid Sample.
v = _RF Eq. 204A—3
M 1
22

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ATMOSPHERIC
VENT
UPC.
ZERO AIR.
OR EQUIVALENT
HEAliNG cotis
CRITiCAL
ORIFICE
LINEARITY
CALIBRATION GASES
J O-3OHg
U-TUBE MANOMETER
OR VACUUM GAGE
LEGEND
NEEDLE VALVE
rki TOGGLE VALVE
— SAMPLE LINES
SIGNAL LINES
I ’ . ,
Voc
SAMPLE
VESSEL.
Figure 204A-1. Liquid analysis sample system.

-------
TEFLON SAMPLE LINE
TO
FT A
CLASS VESSEL
Figure 204A-2
CRITiCAL ORIFICE
RUBBER STOPPER
WITh TEFLON TAPE
VOC sampling vessel.
ULTRAPURE
CARFIER C-AS
24

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SAMPLE OVEN
THERMOMETER
UPC.
ZERO AIR.
OR EQUIVALENT
PRESSURE
GAGE
LINEARITY
CALIBRATION CASES
HEATING COILS
CRITICAL
ORIFICE
SAMPLE BYPASS
WATER BATH
VOC
SAMPLE
VESSEL
0- 30 Hg
U U-TUBE MANOMETER
OR VACUUM GAGE
AIR
1 )
01
LEGEND
NEEDLE VALVE
TOGGLE VALVE
— SAMPLE LINES
SIGNAL LINES
HEATED
SAMPLE
LINE
HOT PLATE
Figure 204A-3. Critical orifice calibration apparatus.

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METHOD 204B--VOLATILE ORGANIC COMPOUNDS EMISSIONS IN
CAPTURED STREAM
1. INTRODUCTION
1.1 Applicability. This procedure is applicable for
determining the VOC content of captured gas streams. It is
intended to be used in the development of liquid/gas or gas/gas
protocols for determining VOC CE for surface coating and printing
operations. The procedure may not be acceptable in certain
site—specific situations [ e.g., when: (1) direct—fired heaters or
other circumstances affect the quantity of VOC at the control
device inlet; and (2) particulate organic aerosols are formed in
the process and are present in the captured emissions].
1.2 Principle. The amount of VOC captured (C) is calculated
as the sum of the products of the VOC content (CGJ), the flow
rate (Q ), and the sample time (°C) from each captured emissions
point.
1.3 Estimated Measurement Uncertainty. The measurement
uncertainties are estimated for each captured or fugitive
emissions point as follows: = ±5.5 percent and
CGj = ±5.0 percent. Based on these numbers, the probable
uncertainty for G is estimated at about ±7.4 percent.
1.4 Sampling Requirements. A CE test shall consist of at
least three sampling runs. Each run shall cover at least
one complete production cycle, but shall be at least 3 hours
long. The sampling time for each run need not exceed 8 hours,
even if the production cycle has not been completed.
26

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Alternative sampling times may be used with the approval of the
Administrator.
1.5 Notes. Because this procedure is often applied in
highly explosive areas, caution and care should be exercised in
choosing, installing, and using the appropriate equipment.
Mention of trade names or company products does not constitute
endorsement. All gas concentrations (percent, ppm) are by
volume, unless otherwise noted.
2. APPARATUS AND REAGENTS
2.1 Gas VOC Concentration. A schematic of the measurement
system is shown in Figure 204B-l. The main components are as
follows:
2.1.1 Sample Probe. Stainless steel or equivalent. The
probe shall be heated to prevent VOC condensation.
2.1.2 Calibration Valve Assembly. Three-way valve assembly
at the outlet of the sample probe to direct the zero and
calibration gases to the analyzer. Other methods, such as
quick-connect lines, to route calibration gases to the outlet of
the sample probe are acceptable.
2.1.3 Sample Line. Stainless steel or Teflon tubing to
transport the sample gas to the analyzer. The sample line must
be heated to prevent condensation.
2.1.4 Sample Pump. A leak-free pump, to pull the sample gas
through the system at a flow rate sufficient to minimize the
response time of the measurement system. The components of the
pump that contact the gas stream shall be constructed of
27

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stainless steel or Teflon. The sample pump must be heated to
prevent condensation.
2.1.5 Sample Flow Rate Control. A sample flow rate control
valve and rotaineter, or equivalent, to maintain a constant
sampling rate within 10 percent. The flow rate control valve and
rotameter must be heated to prevent condensation. A control
valve may also be located on the sample pump bypass loop to
assist in controlling the sample pressure and flow rate.
2.1.6 organic Concentration Analyzer. An FIA with a span
value of 1.5 times the expected concentration as propane;
however, other span values may be used if it can be demonstrated
to the Administrator’s satisfaction that they would provide more
accurate measurements. The system shall be capable of meeting or
exceeding the following specifications:
2.1.6.1 Zero Drift. Less than ±3.0 percent of the span
value.
2.1.6.2 Calibration Drift, Less than ±3.0 percent of the
span value.
2.1.6.3 Calibration Error. Less than ±5.0 percent of the
calibration gas value.
2.1.6.4 Response Time. Less than 30 seconds.
2.1.7 Integrator/Data Acquisition System. An analog or
digital device, or computerized data acquisition system used to
integrate the FIA response or compute the average response and
record measurement data. The minimum data sampling frequency for
computing average or integrated values is one measurement value
28

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every 5 seconds. The device shall be capable of recording
average values at least once per minute.
2.1.8 Calibration and Other Gases. Gases used for
calibration, fuel, and combustion air (if required) are contained
in compressed gas cylinders. All calibration gases shall be
traceable to National Institute of Standards and Technology
standards and shall be certified by the manufacturer to
±1 percent of the tag value. Additionally, the manufacturer of
the cylinder should provide a recommended shelf life for each
calibration gas cylinder over which the concentration does not
change more than ±2 percent from the certified value. For
calibration gas values not generally available, alternative
methods for preparing calibration gas mixtures, such as dilution
systems, may be used with the approval of the Administrator.
2.1.8.1 Fuel. The FIA manufacturer’s recommended fuel
should be used. A 40 percent H 2 /60 percent He or
40 percent H 2 /60 percent N 2 gas mixture is recommended to avoid
an oxygen synergism effect that reportedly occurs when oxygen
concentration varies significantly from a mean value.
2.1.8.2 Carrier Gas. High purity air with less than 1 ppm
of organic material (as propane or carbon equivalent) or less
than 0.1 percent of the span value, whichever is greater.
2.1.8.3 FTh Linearity Calibration Gases. Low-, mid-, and
high—range gas mixture standards with nominal propane
concentrations of 20-30, 45-55, and 70-80 percent of the span
value in air, respectively. Other calibration values and other
29

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span values may be used if it can be shown to the Administrator’s
satisfaction that more accurate measurements would be achieved.
2.1.9 Particulate Filter. An in-stack or an out-of-stack
glass fiber filter is recommended if exhaust gas particulate
loading is significant. An out-of-stack filter must be heated to
prevent any condensation unless it can be demonstrated that no
condensation occurs.
2.2 Captured Emissions Volumetric Flow Rate.
2.2.1. Method 2 or 2A Apparatus. For determining volumetric
flow rate.
2.2.2 Method 3 Apparatus and Reagents. For determining
molecular weight of the gas stream. An estimate of the molecular
weight of the gas stream may be used if approved by the
Administrator.
2.2.3 Method 4 Apparatus and Reagents. For determining
moisture content, if necessary.
3. DETERMINATION OF VOLUMETRIC FLOW RATE OF CAPTURED
EMISSIONS
3.1. Locate all points where emissions are captured from the
affected facility. Using Method 1, determine the sampling
points. Be sure to check each site for cyclonic or swirling
flow.
3.2 Measure the velocity at each sampling site at least once
every hour during each sampling run using Method 2 or 2A.
4. DETERMINATION OF VOC CONTENT OF CAPTURED EMISSIONS
30

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4.1 Analysis Duration. Measure the VOC responses at each
captured emissions point during the entire test run or, if
applicable, while the process is operating. If there are
multiple captured emission locations, design a sampling system to
allow a single FIA to be used to determine the VOC responses at
all sampling locations.
4.2 Gas VOC Concentration.
4.2.1 Assemble the sample train as shown in Figure 204B-1.
Calibrate the FIA according to the procedure in Section 5.1.
4.2.2 Conduct a system check according to the procedure in
Section 5.3.
4.2.3 Install the sample probe so that the probe is
centrally located in the stack, pipe, or duct, and is sealed
tightly at the stack port connection.
4.2.4 Inject zero gas at the calibration valve assembly.
Allow the measurement system response to reach zero. Measure the
system response time as the time required for the system to reach
the effluent concentration after the calibration valve has been
returned to the effluent sampling position.
4.2.5 Conduct a system check before, and a system drift
check after, each sampling run according to the procedures in
Sections 5.2 and 5.3. If the drift check following a run
indicates unacceptable performance (see Section 5.3), the run is
not valid. The tester may elect to perform system drift checks
during the run not to exceed one drift check per hour.
31

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4.2.6 Verify that the sample lines, filter, and pump
temperatures are 120 ± 5°C.
4.2.7 Begin sampling at the start of the test period and
continue to sample during the entire run. Record the starting
and ending times and any required process information as
appropriate. If multiple captured emission locations are sampled
using a single FIA, sample at each location for the same amount
of time (e.g., 2 minutes) and continue to switch from one
location to another for the entire test run. Be sure that total
sampling time at each location is the same at the end of the test
run. Collect at least four separate measurements from each
sample point during each hour of testing. Disregard the
measurements at each sampling location until two times the
response time of the measurement system has elapsed. Continue
sampling for at least 1 minute and record the concentration
measurements.
4.3 Background Concentration. NOTE: Not applicable when
the building is used as the TTE.
4.3.1 Locate all NDO’s of the TTE. A sampling point shall
be at the center of each NDO, unless otherwise specified by the
Administrator. If there are more than six NDO’s, choose six
sampling points evenly spaced among the NDO’s.
4.3.2 Assemble the sample train as shown in Figure 204B-2.
Calibrate the FIA and conduct a system check according to the
procedures in Sections 5.1 and 5.3. NOTE: This sample train
32

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shall be separate from the sample train used to measure the
captured emissions.
4.3.3 Position the probe at the sampling location.
4.3.4 Determine the response time, conduct the system check,
and sample according to the procedures described in
Sections 4.2.4 through 4.2.7.
4.4 Alternative Procedure. The direct interface sampling
and analysis procedure described in Section 7.2 of Method 18 may
be used to determine the gas VOC concentration. The system must
be designed to collect and analyze at least one sample every
10 minutes.
5. CALIBRATION AND QUALITY ASSURANCE
5.1 FIA Calibration and Linearity Check. Make necessary
adjustments to the air and fuel supplies for the FIA and ignite
the burner. Allow the FIA to warm up for the period recommended
by the manufacturer. Inject a calibration gas into the
measurement system and adjust the back-pressure regulator to the
value required to achieve the flow rates specified by the
manufacturer. Inject the zero- and the high-range calibration
gases and adjust the analyzer calibration to provide the proper
responses. Inject the low- and mid-range gases and record the
responses of the measurement system. The calibration and
linearity of the system are acceptable if the responses for all
four gases are within 5 percent of the respective gas values. If
the performance of the system is not acceptable, repair or adjust
the system and repeat the linearity check. Conduct a calibration
33

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and linearity check after assembling the analysis system and
after a major change is made to the system.
5.2 Systems Drift Checks. Select the calibration gas that
most closely approximates the concentration of the captured
emissions for conducting the drift checks. Introduce the zero
and calibration gases at the calibration valve assembly and
verify that the appropriate gas flow rate and pressure are
present at the FIA. Record the measurement system responses to
the zero and calibration gases. The performance of the system is
acceptable if the difference between the drift check measurement
and the value obtained in Section 5.1 is less than 3 percent of
the span value. Conduct the system drift checks at the end of
each run.
5.3 System Check. Inject the high-range calibration gas at
the inlet of the sampling probe and record the response. The
performance of the system is acceptable if the measurement system
response is within 5 percent of the value obtained in Section 5.1
for the high—range calibration gas. Conduct a system check
before and after each test run.
5.4 Audits.
5.4.1 Analysis Audit Procedure. Immediately before each
test, analyze an audit cylinder as described in Section 5.2. The
analysis audit must agree with the audit cylinder concentration
within 10 percent.
5.4.2 Audit Samples and Audit Sample Availability. Audit
samples will be supplied only to enforcement agencies for
34

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compliance tests. The availability of audit samples may be
obtained by writing:
Source Test Audit Coordinator (STAC) (MD-77B)
Quality Assurance Division
Atmospheric Research and Exposure Assessment Laboratory
U.S. Environmental Protection Agency
Research Triangle Park, NC 27711
or by calling the STAC at (919) 541-7834. The request for the
audit sample must be made at least 30 days prior to the scheduled
compliance sample analysis.
5.4.3 Audit Results. Calculate the audit sample
concentration according to the calculation procedure described in
the audit instructions included with the audit sample. Fill in
the audit sample concentration and the analyst’s name on the
audit response form included with the audit instructions. Send
one copy to the EPA Regional Office or the appropriate
enforcement agency, and a second copy to the STAC. The EPA
Regional Office or the appropriate enforcement agency will report
the results of the audit to the laboratory being audited.
Include this response with the results of the compliance samples
in relevant reports to the EPA Regional Office or the appropriate
enforcement agency.
6. NOMENCLATURE
A 1 = area of NDO 1, ft 2 .
A , 1 = total area of all NDO’s in the enclosure, ft 2 .
CB 1 = corrected average VOC concentration of background
emissions at point i, ppm propane.
CB = average background concentration, ppm propane.
35

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CGJ = corrected average VOC concentration of captured
emissions at point j, ppm propane.
CDH = average measured concentration for the drift check
calibration gas, ppm propane.
CDO = average system drift check concentration for zero
concentration gas, ppm propane.
CH = actual concentration of the drift check calibration gas,
ppm propane.
C = uncorrected average background VOC concentration
measured at point i, ppm propane.
= uncorrected average VOC concentration measured at point
j, ppm propane.
C = total VOC content of captured emissions, kg.
K 1 = 1.830 x 10-6 kg/(m 3 -ppm).
n = number of measurement points.
= average effluent volumetric flow rate corrected to
standard conditions at captured emissions point j,
m 3 / mm.
= total duration of captured emissions.
7. CALCULATIONS
7.1 Total VOC Captured Emissions.
G = L (CGJ — CB) QGJ Oc K 1 Eq. 204B—1
7.2 VOC Concentration of the Captured Emissions at Point j.
CGJ = — C ) CpH CDO Eq. 204B—2
36

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7.3 BackgroUnd VOC concentration at Point i.
C
C = (C 1 - C 00 ) H Eq. 204B—3
0K 00
7.4 Average Background Concentration.
CB = A 1 Eq. 204B-4
NOTE: If the concentration at each point is within 20 percent of
the average concentration of all points, then use the arithn etiC
average.
37

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SAMF’IF OYPASS
—
lID [ XI IAIJSI
DUCT
I IEATED
SINGI E POINT PADTICULAIF CAl If3flAl ION
PRODE AT IIL1ER VALVE
DDI E OF DUCT
EXCESS
SAMPLE
HO tA ME I El
C -)
a)
I IEATEI) SAMPI E LiNE
IN1 EIflAl OR/
DATA
ACO( PISITION
SYSIEM
SAMPI E MAMr0’J)
CRART
flECOI1DEfl
(OP I IONAL)
U,
0
a-
I I )
N
‘U
0
z
0
-j
LEGEND
NEEDLE VALVE
SAMPLE LINES
SIGNAL LINES
Figure ?04B-1 Gas VOC concentration measurement system.

-------
MEAstjIlI AEN1 t’OIIl 1 3
I MEASI JI1EMEN I P0 1111 4
I ML/VIJII(
EXt IAUST
1EI LOU HEAD
SAMPE E I’UMP
SAMPI E
BYPASS
F IA
Ext IAUSI
CON1 AOl
VAI VE
c )
( .0
I MIEASIJRFMFN1 l,OlNI I
1 —
MEASUIIEMENI POIt’IF 2
(1:
IIOTAME1 ERS
1 II11EE
WAY
VAI VES
Figure 204B-2.
Background measurement system.

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METHOD 204C--VOLATILE ORGANIC COMPOUNDS EMISSIONS IN CAPTURED
STREAM (DILUTION TECHNIQUE)
1. INTRODUCTION
1.1 Applicability. This procedure is applicable for
determining the VOC content of captured gas streams. It is
intended to be used in the development of a gas/gas protocol in
which fugitive emissions are measured for determining VOC
CE for surface coating and printing operations. A dilution
system is used to reduce the voc concentration of the
captured emissions to about the same concentration as the
fugitive emissions. The procedure may not be acceptable in
certain site-specific situations [ e.g., when: (1) direct—fired
heaters or other circumstances affect the quantity of
VOC at the control device inlet; and (2) particulate organic
aerosols are formed in the process and are present in the
captured emissions).
1.2 Principle. The amount of VOC captured (G) is calculated
as the sum of the products of the VOC content (CGJ), the flow
rate ( GJ)’ and the sampling time ( 0 C ) from each captured
emissions point.
1.3 Estimated Measurement Uncertainty. The measurement
uncertainties are estimated for each captured or fugitive
emissions point as follows: Q = ±5.5 percent and
C = ±5 percent. Based on these numbers, the probable
uncertainty for C is estimated at about ±7.4 percent.
40

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1.4 Sampling Requirements. A CE test shall consist of at
least three sampling runs. Each run shall cover at least one
complete production cycle, but shall be at least 3 hours long.
The sampling time for each run need not exceed 8 hours, even if
the production cycle has not been completed. Alternative
sampling times may be used with the approval of the
Administrator.
1.5 Notes. Because this procedure is often applied in
highly explosive areas, caution and care should be exercised in
choosing, installing, and using the appropriate equipment.
Mention of trade names or company products does not constitute
endorsement. All gas concentrations (percent, ppm) are by
volume, unless otherwise noted.
2. APPARATUS AND REAGENTS
2.1 Gas VOC Concentration. A schematic of the measurement
system is shown in Figure 204C-l. The main components are as
follows:
2.1.1 Dilution System. A Kipp in-stack dilution probe and
controller or similar device may be used. The dilution rate may
be changed by substituting different critical orifices or
adjustments of the aspirator supply pressure. The dilution
system shall be heated to prevent VOC condensation. Note: An
out-of-stack dilution device may be used.
2.1.2 Calibration Valve Assembly. Three-way valve assembly
at the outlet of the sample probe to direct the zero and
calibration gases to the analyzer. Other methods, such as
41

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quick-connect lines, to route calibration gases to the outlet of
the sample probe are acceptable.
2.1.3 Sample Line. Stainless steel or Teflon tubing to
transport the sample gas to the analyzer. The sample line must
be heated to prevent condensation.
2.1.4 8ample Pump. A leak-free pump, to pull the sample gas
through the system at a flow rate sufficient to minimize the
response time of the measurement system. The components of the
pump that contact the gas stream shall be constructed of
stainless steel or Teflon. The sample pump must be heated to
prevent condensation.
2.1.5 Sample Flow Rate Control. A sample flow rate control
valve and rotameter, or equivalent, to maintain a constant
sampling rate within 10 percent. The flow control valve and
rotameter must be heated to prevent condensation. A control
valve may also be located on the sample pump bypass loop to
assist in controlling the sample pressure and flow rate.
2.1.6 Sample Gas Manifold. Capable of diverting a portion
of the sample gas stream to the FIA, and the remainder to the
bypass discharge vent. The manifold components shall be
constructed of stainless steel or Teflon. If captured or
fugitive emissions are to be measured at multiple locations, the
measurement system shall be designed to use separate sampling
probes, lines, and pumps for each measurement location and a
common sample gas manifold and FIA. The sample gas manifold and
42

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connecting lines to the FIA must be heated to prevent
condensation. NOTE: Depending on the number of sampling points
and their location, it may not be possible to use only one FIA.
However to reduce the effect of calibration error, the number of
FIA’s used during a test should be keep as small as possible.
2.1.7 organic Concentration Analyzer. An FIA with a span
value of 1.5 times the expected concentration as propane;
however, other span values may be used if it can be demonstrated
to the Administrator’s satisfaction that they would provide more
accurate measurements. The system shall be capable of meeting or
exceeding the following specifications:
2.1.7.1 Zero Drift. Less than ±3.0 percent of the span
value.
2.1.7.2 Calibration Drift. Less than ±3.0 percent of the
span value.
2.1.7.3 Calibration Error. Less than ±5.0 percent of the
calibration gas value.
2.1.7.4 Response Time. Less than 30 seconds.
2.1.8 Integrator/Data Acquisition System. An analog or
digital device or computerized data acquisition system used to
integrate the FIA response or compute the average response and
record measurement data. The minimum data sampling frequency for
computing average or integrated values is one measurement value
every 5 seconds. The device shall be capable of recording
average values at least once per minute.
43

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2.1.9 Calibration and Other Gases. Gases used for
calibration, fuel, and combustion air (if required) are contained
in compressed gas cylinders. All calibration gases shall be
traceable to National Institute of Standards and Technology
standards and shall be certified by the manufacturer to
±1 percent of the tag value. Additionally, the manufacturer of
the cylinder should provide a recommended shelf life for each
calibration gas cylinder over which the concentration does not
change more than ±2 percent from the certified value. For
calibration gas values not generally available, alternative
methods for preparing calibration gas mixtures, such as dilution
systems, may be used with the approval of the Administrator.
2.1.9.1 Fuel. The FIA manufacturer’s recommended fuel
should be used. A 40 percent H 2 /60 percent He or
40 percent H 2 /60 percent N 2 gas mixture is recommended to avoid
an oxygen synergism effect that reportedly occurs when oxygen
concentration varies significantly from a mean value.
2.1.9.2 Carrier Gas and Dilution Air Supply. High purity
air with less than 1 ppm of organic material (as propane or
carbon equivalent), or less than 0.1 percent of the span value,
whichever is greater.
2.1.9.3 FTh Linearity Calibration Gases. Low-, mid-, and
high-range gas mixture standards with nominal propane
concentrations of 20-30, 45-55, and 70—80 percent of the span
value in air, respectively. Other calibration values and other
44

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span values may be used if it can be shown to the Administrator’s
satisfaction that more accurate measurements would be achieved.
2.1.9.4 Dilution Check Gas. Gas mixture standard containing
propane in air, approximately half the span value after dilution.
2.1.10 Particulate Filter. An in—stack or an out-of-stack
glass fiber filter is recommended if exhaust gas particulate
loading is significant. An out-of-stack filter must be heated to
prevent any condensation unless it can be demonstrated that no
condensation occurs.
2.2 Captured Emissions Volumetric Flow Rate.
2.2.1 Method 2 or 2A Apparatus. For determining volumetric
flow rate.
2.2.2 Method 3 Apparatus and Reagents. For determining
molecular weight of the gas stream. An estimate of the molecular
weight of the gas stream may be used if approved by the
Administrator.
2.2.3 Method 4 Apparatus and Reagents. For determining
moisture content, if necessary.
3. DETERMINATION OF VOLUMETRIC FLOW RATE OF CAPTURED
EMISSIONS
3.1 Locate all points where emissions are captured from the
affected facility. Using Method 1, determine the sampling
points. Be sure to check each site for cyclonic or swirling
flow.
3.2 Measure the velocity at each sampling site at least once
every hour during each sampling run using Method 2 or 2A.
45

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4. DETERMINATION OF VOC CONTENT OF CAPTURED EMISSIONS
4.1 Analysis Duration. Measure the VOC responses at each
captured emissions point during the entire test run or, if
applicable, while the process is operating. If there are
multiple captured emissions locations, design a sampling system
to allow a single FIA to be used to determine the VOC responses
at all sampling locations.
4.2 Gas VOC Concentration.
4.2.1. Assemble the sample train as shown in Figure 204C-l.
Calibrate the FIA according to the procedure in Section 5.1.
4.2.2 Set the dilution ratio and determine the dilution
factor according to the procedure in Section 5.3.
4.2.3 Conduct a system check according to the procedure in
Section 5.4.
4.2.4 Install the sample probe so that the probe is
centrally located in the stack, pipe, or duct, and is sealed
tightly at the stack port connection.
4.2.5 Inject zero gas at the calibration valve assembly.
Measure the system response time as the time required for the
system to reach the effluent concentration after the calibration
valve has been returned to the effluent sampling position.
4.2.6 Conduct a system check before, and a system drift
check after, each sampling run according to the procedures in
Sections 5.2 and 5.4. If the drift check following a run
indicates unacceptable performance (see Section 5.4), the run is
46

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not valid. The tester may elect to perform system drift checks
during the run not to exceed one drift check per hour.
4.2.7 Verify that the sample lines, filter, and pump
temperatures are 120 ± 5°C.
4.2.8 Begin sampling at the start of the test period and
continue to sample during the entire run. Record the starting
and ending times and any required process information as
appropriate. If multiple captured emission locations are sampled
using a single FIA, sample at each location for the same amount
of time (e.g., 2 mm.) and continue to switch from one location
to another for the entire test run. Be sure that total sampling
time at each location is the same at the end the test run.
Collect at least four separate measurements from each sample
point during each hour of testing. Disregard the measurements at
each sampling location until two times the response time of the
measurement system has elapsed. Continue sampling for at least
1 minute and record the concentration measurements.
4.3 Background Concentration. NOTE: Not applicable when
the building is used as the TTE.
4.3.1 Locate all NDO’s of the TTE. A sampling point shall
be at the center of each NDO, unless otherwise approved by the
Administrator. If there are more than six NDO’s, choose six
sampling points evenly spaced among the NDO’s.
4.3.2 Assemble the sample train as shown in Figure 204C-2.
Calibrate the FIA and conduct a system check according to the
procedures in Sections 5.1 and 5.4.
47

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4.3.3 Position the probe at the sampling location.
4.3.4 Determine the response time, conduct the system check,
and sample according to the procedures described in
Sections 4.2.4 through 4.2.8.
4.4 Alternative Procedure. The direct interface sampling
and analysis procedure described in Section 7.2 of Method 18 may
be used to determine the gas Voc concentration. The system must
be designed to collect and analyze at least one sample every
10 minutes.
5. CALIBRATION AND QUALITY ASSURANCE
5.1 FTh Calibration and Linearity Check. Make necessary
adjustments to the air and fuel supplies for the FIA and ignite
the burner. Allow the FIA to warm up for the period recommended
by the manufacturer. Inject a calibration gas into the
measurement systeit after the dilution system and adjust the
back-pressure regulator to the value required to achieve the flow
rates specified by the manufacturer. Inject the zero— and the
high-range calibration gases and adjust the analyzer calibration
to provide the proper responses. Inject the low- and mid-range
gases and record the responses of the measurement system. The
calibration and linearity of the system are acceptable if the
responses for all four gases are within 5 percent of the
respective gas values. If the performance of the system is not
acceptable, repair or adjust the system and repeat the linearity
check. Conduct a calibration and linearity check after
48

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assembling the analysis system and after a major change is made
to the system.
5.2 Systems Drift Checks. Select the calibration gas that
most closely approximates the concentration of the diluted
captured emissions for conducting the drift checks. Introduce
the zero and calibration gases at the calibration valve assembly,
and verify that the appropriate gas flow rate and pressure are
present at the FIA. Record the measurement system responses to
the zero and calibration gases. The performance of the system is
acceptable if the difference between the drift check measurement
and the value obtained in Section 5.1 is less than 3 percent of
the span value. Conduct the system drift check at the end of
each run.
5.3 Determination of Dilution Factor. Inject the dilution
check gas into the measurement system before the dilution system
and record the response. Calculate the dilution factor using
Equation 204C-3.
5.4 System Check. Inject the high-range calibration gas at
the inlet to the sampling probe while the dilution air is turned
off. Record the response. The performance of the system is
acceptable if the measurement system response is within 5 percent
of the value obtained in Section 5.1 for the high-range
calibration gas. Conduct a system check before and after each
test run.
49

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5.5 Audits.
5.5.1 Analysis Audit Procedure. Immediately before each
test, analyze an audit cylinder as described in Section 5.2. The
analysis audit must agree with the audit cylinder concentration
within 10 percent.
5.5.2 Audit Samples and Audit Sample Availability. Audit
samples will be supplied only to enforcement agencies for
compliance tests. The availability of audit samples may be
obtained by writing:
Source Test Audit Coordinator (STAC) (MD-77B)
Quality Assurance Division
Atmospheric Research and Exposure Assessment Laboratory
U.S. Environmental Protection Agency
Research Triangle Park, NC 27711
or by calling the STAC at (919) 541-7834. The request for the
audit sample must be made at least 30 days prior to the scheduled
compliance sample analysis.
5.5.3 Audit Results. Calculate the audit sample
concentration according to the calculation procedure described in
the audit instructions included with the audit sample. Fill in
the audit sample concentration and the analyst’s name on the
audit response form included with the audit instructions. Send
one copy to the EPA Regional Office or the appropriate
enforcement agency, and a second copy to the STAC. The EPA
Regional Office or the appropriate enforcement agency will report
the results of the audit to the laboratory being audited.
Include this response with the results of the compliance samples
50

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in relevant reports to the EPA Regional Office or the appropriate
enforcement agency.
6. NOMENCLATURE
A 1 = area of NDO i, ft 2 .
AN = total area of all NDO’s in the enclosure, ft 2 .
CA = actual concentration of the dilution check gas, ppm
propane.
CB 1 = corrected average VOC concentration of background
emissions at point i, ppm propane.
CB = average background concentration, ppm propane.
CDH = average measured concentration for the drift check
calibration gas, ppm propane.
C, 0 = average system drift check concentration for zero
concentration gas, ppm propane.
CH = actual concentration of the drift check calibration gas,
ppm propane.
C 1 = uncorrected average background VOC concentration
measured at point i, ppm propane.
C = uncorrected average VOC concentration measured at point
j, ppm propane.
CM = measured concentration of the dilution check gas, ppm
propane.
DF = dilution factor.
G = total VOC content of captured emissions, kg.
K 1 = 1.830 x 106 kg/(m 3 —ppm).
n = number of measurement points.
Q = average effluent volumetric flow rate corrected to
standard conditions at captured emissions point j,
m 3 /min.
= total duration of CE sampling run, Thin.
51

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7. CALCULATIONS
7.2. Total VOC Captured Emissions.
G = E (CG; — C 8 ) QGj O K 1 Eq. 204C—1
7.2 VOC Concentration of the Captured Emissions at Point ).
CGJ = DF (C — CDO) CDH CDO Eq. 204C—2
7.3 Dilution Factor.
DF = Eq. 204C-3
7.4 Background VOC Concentration at Point i.
CBI = (C — CDO) CC Eq. 204C—4
7.5 Average Background Concentration.
= A 1 Eq. 204C-5
NOTE: If the concentration at each point is within 20 percent of
the average concentration of all points, then use the arithmetic
average.
52

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METHOD 204D--VOLATILE ORGANIC COMPOUNDS EMISSIONS IN FUGITIVE
STREAM FROM TEMPORARY TOTAL ENCLOSURE
1. INTRODUCTION
1.1. Applicability. This procedure is applicable for
determining the fugitive VOC emissions from a TTE. It is
intended to be used as a segment in the development of liquid/gas
or gas/gas protocols for determining VOC CE for surface coating
and printing operations.
1.2 Principle. The amount of fugitive VOC emissions (F)
from the TTE is calculated as the sum of the products of the VOC
content (Cr 3 ), the flow rate (QFJ) from each fugitive emissions
point, and the sampling time ( 0 F)•
1.3 Estimated Measurement Uncertainty. The measurement
uncertainties are estimated for each fugitive emission point as
follows: Q = ±5.5 percent and CFJ = ±5.0 percent.
Based on these numbers, the probable uncertainty for F is
estimated at about ±7.4 percent.
1.4 Sampling Requirements. A CE test shall consist of at
least three sampling runs. Each run shall cover at least one
complete production cycle, but shall be at least 3 hours long.
The sampling time for each run need not exceed 8 hours, even if
the production cycle has not been completed. Alternative
sampling times may be used with the approval of the
Administrator.
1.5 Notes. Because this procedure is often applied in
highly explosive areas, caution and care should be exercised in
55

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choosing, installing, and using the appropriate equipment.
Mention of trade names or company products does not constitute
endorsement. All gas concentrations (percent, ppm) are by
volume, unless otherwise noted.
2. APPARATUS AND REAGENTS
2.1 Gas VOC concentration. A schematic of the measurement
system is shown in Figure 204D—l. The main components are as
follows:
2.1.1 Sample Probe. Stainless steel or equivalent. The
probe shall be heated to prevent VOC condensation.
2.1.2 Calibration Valve Assembly. Three-way valve assembly
at the outlet of the sample probe to direct the zero and
calibration gases to the analyzer. Other methods, such as
quick-connect lines, to route calibration gases to the outlet of
the sample probe are acceptable.
2.1.3 Sample Line. Stainless steel or Teflon tubing to
transport the sample gas to the analyzer. The sample line must
be heated to prevent condensation.
2.1.4 Sample Pump. A leak—free pump, to pull the sample gas
through the system at a flow rate sufficient to minimize the
response time of the measurement system. The components of the
pump that contact the gas stream shall be constructed of
stainless steel or Teflon. The sample pump must be heated to
prevent condensation.
2.1.5 Sample Flow Rate Control. A sample flow rate control
valve and rotameter, or equivalent, to maintain a constant
56

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sampling rate within 10 percent. The flow control valve and
rotanieter must be heated to prevent condensation. A control
valve may also be located on the sample pump bypass loop to
assist in controlling the sample pressure and flow rate.
2.1.6 Sample Gas Manifold. Capable of diverting a portion
of the sample gas stream to the FIA, and the remainder to the
bypass discharge vent. The manifold components shall be
constructed of stainless steel or Teflon. If emissions are to be
measured at multiple locations, the measurement system shall be
designed to use separate sampling probes, lines, and pumps for
each measurement location and a common sample gas manifold and
FIA. The sample gas manifold and connecting lines to the FIA
must be heated to prevent condensation.
2.1.7 Organic Concentration Analyzer. An FIA with a span
value of 1.5 times the expected concentration as propane;
however, other span values may be used if it can be demonstrated
to the Administrator’s satisfaction that they would provide more
accurate measurements. The system shall be capable of meeting or
exceeding the following specifications:
2.1.7.1 Zero Drift. Less than ±3.0 percent of the span
value.
2.1.7.2 Calibration Drift. Less than ±3.0 percent of the
span value.
2.1.7.3 Calibration Error. Less than ±5.0 percent of the
calibration gas value.
2.1.7.4 Response Time. Less than 30 seconds.
57

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2.1.8 Integrator/Data Acquisition System. An analog or
digital device or computerized data acquisition system used to
integrate the FIA response or compute the average response and
record measurement data. The minimum data sampling frequency for
computing average or integrated values is one measurement value
every 5 seconds. The device shall be capable of recording
average values at least once per minute.
2.1.9 Calibration and Other Gases. Gases used for
calibration, fuel, and combustion air (if required) are contained
in compressed gas cylinders. All calibration gases shall be
traceable to National Institute of Standards and Technology
standards and shall be certified by the manufacturer to
±1 percent of the tag value. Additionally, the manufacturer of
the cylinder should provide a recommended shelf life for each
calibration gas cylinder over which the concentration does not
change more than ±2 percent from the certified value. For
calibration gas values not generally available, alternative
methods for preparing calibration gas mixtures, such as dilution
systems, may be used with the approval of the Administrator.
2.1.9.1 Fuel. The FIA manufacturer’s recommended fuel
should be used. A 40 percent H 2 /60 percent He or
40 percent H 2 /60 percent N 2 gas mixture is recommended to avoid
an oxygen synergism effect that reportedly occurs when oxygen
concentration varies significantly from a mean value.
58

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2.1.9.2 Carrier Gas. High purity air with less than 1 ppm
of organic material (as propane or carbon equivalent) or less
than 0.1 percent of the span value, whichever is greater.
2.1.9.3 FIA Linearity Calibration Gases. Low-, mid-, and
high-range gas mixture standards with nominal propane
concentrations of 20-30, 45-55, and 70-80 percent of the span
value in air, respectively. Other calibration values and other
span values may be used if it can be shown to the Administrator’s
satisfaction that more accurate measurements would be achieved.
2.1.10 Particulate Filter. An in-stack or an out-of-stack
glass fiber filter is recommended if exhaust gas particulate
loading is significant. An out-of-stack filter must be heated to
prevent any condensation unless it can be demonstrated that no
condensation occurs.
2.2 Fugitive Emissions Volumetric Flow Rate.
2.2.1 Method 2 or 2A Apparatus. For determining volumetric
flow rate.
2.2.2 Method 3 Apparatus and Reagents. For determining
molecular weight of the gas stream. An estimate of the molecular
weight of the gas stream may be used if approved by the
Administrator.
2.2.3 Method 4 Apparatus and Reagents. For determining
moisture content, if necessary.
2.3 Temporary Total Enclosure. The criteria for designing
an acceptable TTE are specified in Method 204.
59

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3. DETERMINATION OF VOLUMETRIC FLOW RATE OF FUGITIVE
EMISS IONS
3.1 Locate all points where emissions are exhausted from the
TTE. Using Method 1, determine the sampling points. Be sure to
check each site for cyclonic or swirling flow.
3.2 Measure the velocity at each sampling site at least once
every hour during each sampling run using Method 2 or 2A.
4. DETERMINATION OF VOC CONTENT OF FUGITIVE EMISSIONS
4.1 Analysis Duration. Measure the VOC responses at each
fugitive emission point during the entire test run or, if
applicable, while the process is operating. If there are
multiple emission locations, design a sampling system to allow a
single FIA to be used to determine the VOC responses at all
sampling locations.
4.2 Gas VOC Concentration.
4.2.1 Assemble the sample train as shown in Figure 204D-1.
Calibrate the FIA and conduct a system check according to the
procedures in Sections 5.1 and 5.3, respectively.
4.2.2 Install the sample probe so that the probe is
centrally located in the stack, pipe, or duct, and is sealed
tightly at the stack port connection.
4.2.3 Inject zero gas at the calibration valve assembly.
Allow the measurement system response to reach zero. Measure the
system response time as the time required for the system to reach
the effluent concentration after the calibration valve has been
returned to the effluent sampling position.
60

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4.2.4 Conduct a system check before, and a system drift
check after, each sampling run according to the procedures in
Sections 5.2 and 5.3. If the drift check following a run
indicates unacceptable performance (see Section 5.3), the run is
not valid. The tester may elect to perform system drift checks
during the run not to exceed one drift check per hour.
4.2.5 Verify that the sample lines, filter, and pump
temperatures are 120 ± 5°C.
4.2.6 Begin sampling at the start of the test period and
continue to sample during the entire run. Record the starting
and ending times and any required process information, as
appropriate. If multiple emission locations are sampled using a
single FIA, sample at each location for the same amount of time
(e.g., 2 mm.) and continue to switch from one location to
another for the entire test run. Be sure that total sampling
time at each location is the same at the end of the test run.
Collect at least four separate measurements from each sample
point during each hour of testing. Disregard the response
measurements at each sampling location until 2 times the response
time of the measurement system has elapsed. Continue sampling
for at least 1 minute and record the concentration measurements.
4.3 Background Concentration.
4.3.1 Locate all NDO’s of the TTE. A sampling point shall
be at the center of each NDO, unless otherwise approved by the
Administrator. If there are more than six NDO’s, choose six
sampling points evenly spaced among the NDO’s.
61

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4.3.2 Assemble the sample train as shown in Figure 204D—2.
Calibrate the FIA and conduct a system check according to the
procedures in Sections 5.1 and 5.3.
4.3.3 Position the probe at the sampling location.
4.3.4 Determine the response time, conduct the system check,
and sample according to the procedures described in
Sections 4.2.3 through 4.2.6.
4.4 Alternative Procedure. The direct interface sampling
and analysis procedure described in Section 7.2 of Method 18 may
be used to determine the gas VOC concentration. The system must
be designed to collect and analyze at least one sample every
10 minutes.
5. CALIBRATION AND QUALITY ASSURANCE
5.2. FIA Calibration and Linearity Check. Make necessary
adjustments to the air and fuel supplies for the FIA and ignite
the burner. Allow the FIA to warm up for the period recommended
by the manufacturer. Inject a calibration gas into the
measurement system and adjust the back-pressure regulator to the
value required to achieve the flow rates specified by the
manufacturer. Inject the zero- and the high-range calibration
gases arid adjust the analyzer calibration to provide the proper
responses. Inject the low- and mid-range gases and record the
responses of the measurement system. The calibration and
linearity of the system are acceptable if the responses for all
four gases are within 5 percent of the respective gas values. If
the performance of the system is not acceptable, repair or adjust
62

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the system and repeat the linearity check. Conduct a calibration
and linearity check after assembling the analysis system and
after a major change is made to the system.
5.2 Systems Drift Checks. Select the calibration gas
concentration that most closely approximates that of the fugitive
gas emissions to conduct the drift checks. Introduce the zero
and calibration gases at the calibration valve assembly and
verify that the appropriate gas flow rate and pressure are
present at the FIA. Record the measurement system responses to
the zero and calibration gases. The performance of the system is
acceptable if the difference between the drift check measurement
and the value obtained in Section 5.1 is less than 3 percent of
the span value. Conduct a system drift check at the end of each
run.
5.3 system Check. Inject the high-range calibration gas at
the inlet of the sampling probe and record the response. The
performance of the system is acceptable if the measurement system
response is within 5 percent of the value obtained in Section 5.1
for the high-range calibration gas. Conduct a system check
before each test run.
5.4 Audits.
5.4.1 Analysis Audit Procedure. Immediately before each
test, analyze an audit cylinder as described in Section 5.2. The
analysis audit must agree with the audit cylinder concentration
within 10 percent.
63

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5.4.2 Audit Samples and Audit Sample Availability. Audit
samples will be supplied only to enforcement agencies for
compliance tests. The availability of audit samples may be
obtained by writing:
Source Test Audit Coordinator (STAC) (MD—77B)
Quality Assurance Division
Atmospheric Research and Exposure Assessment Laboratory
U.S. Environmental Protection Agency
Research Triangle Park, NC 27711
or by calling the STAC at (919) 541-7834. The request for
the audit sample must be made at least 30 days prior to the
scheduled compliance sample analysis.
5.4.3 Audit Results. Calculate the audit sample
concentration according to the calculation procedure described in
the audit instructions included with the audit sample. Fill in
the audit sample concentration and the analyst’s name on the
audit response form included with the audit instructions. Send
one copy to the EPA Regional Office or the appropriate
enforcement agency, and a second copy to the STAC. The EPA
Regional Office or the appropriate enforcement agency will report
the results of the audit to the laboratory being audited.
Include this response with the results of the compliance samples
in relevant reports to the EPA Regional Office or the appropriate
enforcement agency.
6. NOMENCLATURE
A. = area of NDO 1, ft 2 .
AN = total area of all NDO’S in the enclosure, ft 2 .
64

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CBI = corrected average VOC concentration of background
emissions at point i, ppm propane.
CB = average background concentration, ppm propane.
CDH = average measured concentration for the drift check
calibration gas, ppm propane.
C 0 = average system drift check concentration for zero
concentration gas, ppm propane.
C = corrected average VOC concentration of fugitive
emissions at point j, ppm propane.
CH = actual concentration of the drift check calibration gas,
ppm propane.
C 1 = uncorrected average background VOC concentration at
point i, ppm propane.
C = uncorrected average VOC concentration measured at
point j, ppm propane.
F = total VOC content of fugitive emissions, kg.
K 1 = 1.830 x 106 kg/(m 3 —ppm).
n = number of measurement points.
= average effluent volumetric flow rate corrected to
standard conditions at fugitive emissions point j,
i n 3 / in in.
6 F = total duration of fugitive emissions sampling run, mm.
7. CALCULATIONS
7.1 Total VOC Fugitive Emissions.
F = E (CFJ - CB) QF °F K 1 Eq. 204D—l
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7.2 VOC Concentration of the Fugitive Emissions at Point j.
CFI = (C - CDC) CDH CD0 Eq. 204D—2
7.3 Background VOC Concentration at Point i.
CBI = (C 1 — CDO) CDH —CDo Eq. 204D—3
7.4 Average Background Concentration.
CB A 1 Eq. 204D-4
NOTE: If the concentration at each point is within 20 percent of
the average concentration of all points, use the arithmetic
average.
66

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I FUGITIVE EMISSION POINT 4
I FUGITIVE EMISSION POINT 5
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Figure ?04D-2 . Background measurement system.

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METHOD 204E--VOLATILE ORGANIC COMPOUNDS EMISSIONS IN FUGITIVE
STREAM FROM BUILDING ENCLOSURE
1. INTRODUCTION
1.1 Applicability. This procedure is applicable for
determining the fugitive VOC emissions from a building enclosure
(BE). It is intended to be used in the development of liquid/gas
or gas/gas protocols for determining VOC CE for surface coating
and printing operations.
1.2 Principle. The total amount of fugitive VOC emissions
(F 8 ) from the BE is calculated as the sum of the
products of the VOC content (CFJ) of each fugitive emissions
point, the flow rate ( FJ) at each fugitive emissions point, and
time ( 0 F )
1.3 Measurement Uncertainty. The measurement uncertainties
are estimated for each fugitive emissions point as follows:
= ±10.0 percent and CFJ = ±5.0 percent. Based on these
numbers, the probable uncertainty for F 5 is estimated at about
±11.2 percent.
1.4 Sampling Requirements. A CE test shall consist of at
least three sampling runs. Each run shall cover at least one
complete production cycle, but shall be at least 3 hours long.
The sampling time for each run need not exceed 8 hours, even if
the production cycle has not been completed. Alternative
sampling times may be used with the approval of the
Administrator.
1.5 Notes. Because this procedure is often applied in
highly explosive areas, caution and care should be exercised in
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choosing, installing, and using the appropriate equipment.
Mention of trade names or company products does not constitute
endorsement. All gas concentrations (percent, ppm) are by
volume, unless otherwise noted.
2. Apparatus and Reagents
2.1 Gas VOC Concentration. A schematic of the measurement
system is shown in Figure 2o4E-l. The main components are as
follows:
2.1.1 Sample Probe. Stainless steel or equivalent. The
probe shall be heated to prevent VOC condensation.
2.1.2 Calibration Valve Assembly. Three—way valve assembly
at the outlet of the sample probe to direct the zero and
calibration gases to the analyzer. Other methods, such as
quick—connect lines, to route calibration gases to the outlet of
the sample probe are acceptable.
2.1.3 Sample Line. Stainless steel or Teflon tubing to
transport the sample gas to the analyzer. The sample line must
be heated to prevent condensation.
2.1.4 Sample Pump. A leak-free pump, to pull the sample gas
through the system at a flow rate sufficient to minimize the
response time of the measurement system. The components of the
pump that contact the gas stream shall be constructed of
stainless steel or Teflon. The sample pump must be heated to
prevent condensation.
2.1.5 Sample Flow Rate Control. A sample flow rate control
valve and rotameter, or equivalent, to maintain a constant
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sampling rate within 10 percent. The flow rate control valve and
rotameter must be heated to prevent condensation. A control
valve may also be located on the sample pump bypass loop to
assist in controlling the sample pressure and flow rate.
2.1.6 Sample Gas Manifold. Capable of diverting a portion
of the sample gas stream to the FIA, and the remainder to the
bypass discharge vent. The manifold components shall be
constructed of stainless steel or Teflon. If emissions are to be
measured at multiple locations, the measurement system shall be
designed to use separate sampling probes, lines, and pumps for
each measurement location, and a common sample gas manifold and
FIA. The sample gas manifold must be heated to prevent
condensation.
2.1.7 organic Concentration Analyzer. An FIA with a span
value of 1.5 times the expected concentration as propane;
however, other span values may be used if it can be demonstrated
to the Administrator’s satisfaction that they would provide more
accurate measurements. The system shall be capable of meeting or
exceeding the following specifications:
2.1.7.1 Zero Drift. Less than ±3.0 percent of the span
value.
2.1.7.2 Calibration Drift. Less than ±3.0 percent of the
span value.
2.1.7.3 Calibration Error. Less than ±5.0 percent of the
calibration gas value.
2.1.7.4 Response Time. Less than 30 seconds.
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2.1.8 Integrator/Data Acquisition System. An analog or
digital device or computerized data acquisition system used to
integrate the FIA response or compute the average response and
record measurement data. The minimum data sampling frequency for
computing average or integrated values is one measurement value
every 5 seconds. The device shall be capable of recording
average values at least once per minute.
2.1.9 Calibration and Other Gases. Gases used for
calibration, fuel, and combustion air (if required) are contained
in compressed gas cylinders. All calibration gases shall be
traceable to National Institute of Standards and Technology
standards and shall be certified by the manufacturer to
±1 percent of the tag value. Additionally, the manufacturer of
the cylinder should provide a recommended shelf life for each
calibration gas cylinder over which the concentration does not
change more than ±2 percent from the certified value. For
calibration gas values not generally available, alternative
methods for preparing calibration gas mixtures, such as dilution
systems, may be used with the approval of the Administrator.
2.1.9.1 Fuel. The FIA manufacturer’s recommended fuel
should be used. A 40 percent H 2 /60 percent He or
40 percent H 2 /60 percent N 2 gas mixture is recommended to avoid
an oxygen synergism effect that reportedly occurs when oxygen
concehtration varies significantly from a mean value.
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2.1.9.2 Carrier Gas. High purity air with less than 1 ppm
of organic material (propane or carbon equivalent) or less than
0.1 percent of the span value, whichever is greater.
2.1.9.3 FTh Linearity Calibration Gases. Low-, mid-, and
high-range gas mixture standards with nominal propane
concentrations of 20-30, 45—55, and 70—80 percent of the span
value in air, respectively. Other calibration values and other
span values may be used if it can be shown to the Administrator’s
satisfaction that more accurate measurements would be achieved.
2.1.10 Particulate Filter. An in—stack or an out-of-stack
glass fiber filter is reconunended if exhaust gas particulate
loading is significant. An out-of-stack filter must be heated to
prevent any condensation unless it can be demonstrated that no
condensation occurs.
2.2 Fugitive Emissions Volumetric Flow Rate.
2.2.1 Flow Direction Indicators. Any means of indicating
inward or outward flow, such as light plastic film or paper
streamers, smoke tubes, filaments, and sensory perception.
2.2.2 Method 2 or 2A Apparatus. For determining volumetric
flow rate. Anemometers or similar devices calibrated according
to the manufacturer’s instructions may be used when low
velocities are present. Vane anemometers (Young-maximum response
propeller), specialized pitots with electronic manometers (e.g.,
Shortridge Instruments Inc., Airdata Multimeter 860) are
commercially available with measurement thresholds of 15 and
8 mpm (50 and 25 fpm), respectively.
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2.2.3 Method 3 Apparatus and Reagents. For determining
molecular weight of the gas stream. An estimate of the molecular
weight of the gas stream may be used if approved by the
Administrator.
2.2.4 Method 4 Apparatus and Reagents. For determining
moisture content, if necessary.
2.3 Building Enclosure. The criteria for an acceptable BE
are specified in Method 204.
3. Determination of Volumetric Flow Rate of Fugitive
Emissions
3.1 Preliminary Determinations. The following points are
conconsidered exhaust points and should be measured for
volumetric flow rates and VOC concentrations:
3.1.1 Forced Draft openings. Any opening in the facility
with an exhaust fan. Determine the volumetric flow rate
according to Method 2.
3.1.2 Roof Openings. Any openings in the roof of a facility
which does not contain fans are considered to be exhaust points.
Determine volumetric flow rate from these openings. Use the
appropriate velocity measurement devices (e.g., propeller
anemometers).
3.2 Determination of Flow Rates.
3.2.1 Measure the volumetric flow rate at all locations
identified as exhaust points in Section 3.1. Divide each exhaust
opening into nine equal areas for rectangular openings and into
eight equal areas for circular openings.
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3.2.2 Measure the velocity at each site at least once every
hour during each sampling run using Method 2 or 2A, if
applicable, or using the low velocity instruments in
Section 2.2.2.
4. DETERMINATION OF VOC CONTENT OF FUGITIVE EMISSIONS
4.1 Analysis Duration. Measure the VOC responses at each
fugitive emissions point during the entire test run or, if
applicable, while the process is operating. If there are
multiple emissions locations, design a sampling system to allow a
single FIA to be used to determine the VOC responses at all
sampling locations.
4.2 Gas VOC Concentration.
4.2.1 Assemble the sample train as shown in Figure 204E—1.
Calibrate the FIA and conduct a system check according to the
procedures in Sections 5.1 and 5.3, respectively.
4.2.2 Install the sample probe so that the probe is
centrally located in the stack, pipe, or duct, and is sealed
tightly at the stack port connection.
4.2.3 Inject zero gas at the calibration valve assembly.
Allow the measurement system response to reach zero. Measure the
system response time as the time required for the system to reach
the effluent concentration after the calibration valve has been
returned to the effluent sampling position.
4.2.4 Conduct a system check before, and a system drift
check after, each sampling run according to the procedures in
Sections 5.2 and 5.3. If the drift check following a run
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indicates unacceptable performance (see Section 5.3), the run is
not valid. The tester may elect to perform drift checks during
the run, not to exceed one drift check per hour.
4.2.5 Verify that the sample lines, filter, and pump
temperatures are 120 ± 5°C.
4.2.6 Begin sampling at the start of the test period and
continue to sample during the entire run. Record the starting
and ending times, and any required process information, as
appropriate. If multiple emission locations are sampled using a
single FIA, sample at each location for the same amount of time
(e.g., 2 minutes) and continue to switch from one location to
another for the entire test run. Be sure that total sampling
time at each location is the same at the end of the test run.
Collect at least four separate measurements from each sample
point during each hour of testing. Disregard the response
measurements at each sampling location until 2 times the response
time of the ineasurenient system tias elapsed. Continue sampling
for at least 1 minute, and record the concentration measurements.
4.3 Alternative Procedure. The direct interface sampling and
analysis procedure described in Section 7.2 of Method 18 may be
used to determine the gas VOC concentration. The system must be
designed to collect and analyze at least one sample every
10 minutes.
5. CALIBRATION AND QUALITY ASSURANCE
5.1 FTh Calibration and Linearity Check. Make necessary
adjustments to the air and fuel supplies for the FIA and ignite
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the burner. Allow the FIA to warm up for the period recommended
by the manufacturer. Inject a calibration gas into the
measurement system and adjust the back-pressure regulator to the
value required to achieve the flow rates specified by the
manufacturer. Inject the zero- and the high-range calibration
gases, and adjust the analyzer calibration to provide the proper
responses. Inject the low- and mid-range gases and record the
responses of the measurement system. The calibration and
linearity of the system are acceptable if the responses for all
four gases are within 5 percent of the respective gas values. If
the performance of the system is not acceptable, repair or adjust
the system and repeat the linearity check. Conduct a calibration
and linearity check after assembling the analysis system and
after a major change is made to the system.
5.2 Systems Drift Checks. Select the calibration gas that
most closely approximates the concentration of the captured
emissions for conducting the drift checks. Introduce the zero
and calibration gases at the calibration valve assembly and
verify that the appropriate gas flow rate and pressure are
present at the FIA. Record the measurement system responses to
the zero and calibration gases. The performance of the system is
acceptable if the difference between the drift check measurement
and the value obtained in Section 5.1 is less than 3 percent of
the span value. Conduct a system drift check at the end of each
run.
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5.3 System Check. Inject the high-range calibration gas at
the inlet of the sampling probe and record the response. The
performance of the system is acceptable if the measurement system
response is within 5 percent of the value obtained in Section 5.1
for the high-range calibration gas. Conduct a system check
before each test run.
5.4 Audits.
5.4.1 Analysis Audit Procedure. Immediately before each
test, analyze an audit cylinder as described in Section 5.2. The
analysis audit must agree with the audit cylinder concentration
within 10 percent.
5.4.2 Audit Samples and Audit Sample Availability. Audit
samples will be supplied only to enforcement agencies for
compliance tests. The availability of audit samples may be
obtained by writing:
Source Test Audit Coordinator (STAC) (MD-77B)
Quality Assurance Division
Atmospheric Research and Exposure Assessment Laboratory
U.S. Environmental Protection Agency
Research Triangle Park, NC 27711
or by calling the STAC at (919) 541-7834. The request for the
audit sample must be made at least 30 days prior to the scheduled
compliance sample analysis.
5.4.3 Audit Results. Calculate the audit sample
concentration according to the calculation procedure described in
the audit instructions included with the audit sample. Fill in
the audit sample concentration and the analyst’s name on the
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audit response form included with the audit instructions. Send
one copy to the EPA Regional Office or the appropriate
enforcement agency, and a second copy to the STAC. The EPA
Regional Office or the appropriate enforcement agency will report
the results of the audit to the laboratory being audited.
Include this response with the results of the compliance samples
in relevant reports to the EPA Regional Office or the appropriate
enforcement agency.
6. NOMENCLATURE
CDH = average measured concentration for the drift check
calibration gas, ppm propane.
CDO = average system drift check concentration for zero
concentration gas, ppm propane.
CFJ = corrected average VOC concentration of fugitive
emissions at point j, ppm propane.
CH = actual concentration of the drift check calibration
gas, ppm propane.
C i = uncorrected average VOC concentration measured at
point j, ppm propane.
FB = total VOC content of fugitive emissions from the
building, kg.
= 1.830 X lO kg/(m 3 —ppm).
n = number of measurement points.
Q = average effluent volumetric flow rate corrected to
standard conditions at fugitive emissions point j,
m 3 / in in.
= total duration of CE sampling run, mm.
7. CALCULATIONS
7.1 Total VOC Fugitive Emissions from the Building.
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F 8 = ECFJ Q 6 F K 1 Eq. 204E—1
7.2 VOC Concentration of the Fugitive Emissions at Point ).
C = (C — C 00 ) C 0 -C 00 Eq. 204E—2
80

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FUGI FIVE [ MISS IO U POI A 13
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METHOD 204F--VOLATILE ORGANIC COMPOUNDS CONTENT IN LIQUID
INPUT STREAM (DISTILLATION APPROACH)
1. INTRODUCTION
1.1 Applicability. This procedure is applicable for
determining the input of VOC. It is intended to be used as a
segment in the development of liquid/gas protocols for
determining VOC CE for surface coating and printing operations.
1.2 Principle. The amount of VOC introduced to the process
(L) is the sum of the products of the weight (W) of each VOC
containing liquid (ink, paint, solvent, etc.) used, and its VOC
content (V) , corrected for a response factor (RF). A sample of
each coating used is distilled to separate the VOC fraction. The
distillate is used to prepare a known standard for analysis by an
FIA, calibrated against propane, to determine its RF.
1.3 Sampling Requirements. A CE test shall consist of at
least three sampling runs. Each run shall cover at least one
complete production cycle, but shall be at least 3 hours long.
The sampling time for each run need not exceed 8 hours, even if
the production cycle has not been completed. Alternative
sampling times may be used with the approval of the
Administrator.
1.4 Notes. Because this procedure is often applied in highly
explosive areas, caution and care should be exercised in
choosing, installing, and using the appropriate equipment.
Mention of trade names or company products does not constitute
endorsement. All gas concentrations (percent, ppm) are by
volume, unless otherwise noted.
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2. APPARATUS AND REAGENTS
2.1 Liquid Weight.
2.1.1 Balances/Digital Scales. To weigh drums of VOC
containing liquids to within 0.2 lb.
2.1.2 Volume Measurement Apparatus (Alternative). Volume
meters, flow meters, density measurement equipment, etc., as
needed to achieve the same accuracy as direct weight
measurements.
2.2 Response Factor Determination (FIA Technique). The VOC
distillation system and Tedlar gas bag generation system
apparatuses are shown in Figures 204F-]. and 204F-2, respectively.
The following equipment is required:
2.2.1 Sample Collection Can. An appropriately-sized metal
can to be used to collect VOC containing materials. The can must
be constructed in such a way that it can be grounded to the
coating container.
2.2.2 Needle Valves. To control gas flow.
2.2.3 Regulators. For calibration, dilution, and sweep gas
cylinders.
2.2.4 Tubing and Fittings. Teflon and stainless steel
tubing and fittings with diameters, lengths, and sizes determined
by the connection requirements of the equipment.
2.2.5 Thermometer. Capable of measuring the temperature of
the hot water and oil baths to within 1°C.
2.2.6 Analytical Balance. To measure ±0.01 mg.
2.2.7 Microliter Syringe. lO— l size.
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2.2.8 Vacuum Gauge or Manometer. 0- to 760-mm (0- to
30-in.) Hg U-Tube manometer or vacuum gauge.
2.2.9 Hot Oil Bath, With Stirring Hot Plate. Capable of
heating and maintaining a distillation vessel at 110 ± 3°C.
2.2.10 Ice Water Bath. To cool the distillation flask.
2.2.11 Vacuum/Water Aspirator. A device capable of drawing
a vacuum to within 20 mm Hg from absolute.
2.2.12 Rotary Evaporator System. Complete with folded inner
coil, vertical style condenser, rotary speed control, and Teflon
sweep gas delivery tube with valved inlet. Buchi Rotavapor or
equivalent.
2.2.13 Ethylene G].ycol Cooling/Circulating Bath. Capable of
maintaining the condenser coil fluid at -10°C.
2.2.14 Dry Gas Meter (DGM). Capable of measuring the
dilution gas volume within 2 percent, calibrated with a
spirometer or bubble meter, and equipped with a temperature gauge
capable of measuring temperature within 3°C.
2.2.15 Activated Charcoal/Mole Sieve Trap. To remove any
trace level of organics picked up from the DGM.
2.2.16 Gas Coil Heater. Sufficient length of 0.125—inch
stainless steel tubing to allow heating of the dilution gas to
near the water bath temperature before entering the
volatilization vessel.
2.2.17 Water Bath, With Stirring Hot Plate. Capable of
heating and maintaining a volatilization vessel and coil heater
at a temperature of 100 ± 5°C.
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2.2.18 volatilization Vessel. 50-mi midget impinger fitted
with a septum top and loosely filled with glass wool to increase
the volatilization surface.
2.2.19 Tedlar Gas Bag. Capable of holding 30 liters of gas,
flushed clean with zero air, leak tested, and evacuated.
2.2.20 Organic Concentration Analyzer. An FIA with a span
value of 1.5 times the expected concentration as propane;
however, other span values may be used if it can be demonstrated
that they would provide more accurate measurements. The FIA
instrument should be the same instrument used in the gaseous
analyses adjusted with the same fuel, combustion air, and sample
back-pressure (flow rate) settings. The system shall be capable
of meeting or exceeding the following specifications:
2.2.20.1 Zero Drift. Less than ±3.0 percent of the span
value.
2.2.20.2 Calibration Drift. Less than ±3.0 percent of the
span value.
2.2.20.3 Calibration Error. Less than ±3.0 percent of the
calibration gas value.
2.2.21 Integrator/Data Acquisition System. An analog or
digital device or computerized data acquisition system used to
integrate the FIA response or compute the average response and
record measurement data. The minimum data sampling frequency for
computing average or integrated value is one measurement value
every 5 seconds. The device shall be capable of recording
average values at least once per minute.
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2.2.22 Chart Recorder (Optional). A chart recorder or
similar device is recommended to provide a continuous analog
display of the measurement results during the liquid sample
analysis.
2.2.23 Zero Air. High purity air with less than 1 ppm of
organic material (as propane) or less than 0.1 percent of the
span value, whichever is greater. Used to supply dilution air
for making the Tedlar bag gas samples.
2.2.24 THC Free N 2 . High purity N 2 with less than
1 ppm THC. Used as sweep gas in the rotary evaporator system.
2.2.25 Calibration and Other Gases. Gases used for
calibration, fuel, and combustion air (if required) are contained
in compressed gas cylinders. All calibration gases shall be
traceable to National Institute of Standards and Technology
standards and shall be certified by the manufacturer to
±1 percent of the tag value. Additionally, the manufacturer of
the cylinder should provide a recommended shelf life for each
calibration gas cylinder over which the concentration does not
change more than ±2 percent from the certified value. For
calibration gas values not generally available, alternative
methods for preparing calibration gas mixtures, such as dilution
systems, may be used with prior approval of the Administrator.
2.2.25.1 Fuel. The FIA manufacturer’s recommended fuel
should be used. A mixture of 40 percent H 2 /60 percent He, or
40 percent H 2 /60 percent N 2 is recommended to avoid fuels with
86

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oxygen to avoid an oxygen synergism effect that reportedly occurs
when oxygen concentration varies significantly from a mean value.
2.2.25.2 Combustion Air. High purity air with less than
1 ppm of organic material (as propane) or less than 0.1 percent
of the span value, whichever is greater.
2.2.25.3 FTh Linearity Calibration Gases. Low—, mid-, and
high-range gas mixture standards with nominal propane
concentration of 20-30, 45-55, and 70-80 percent of the span
value in air, respectively. Other calibration values and other
span values may be used if it can be shown that more accurate
measurements would be achieved.
2.2.25.4 System Calibration Gas. Gas mixture standard
containing propane in air, approximating the VOC concentration
expected for the Tedlar gas bag samples.
3. DETERMINATION OF LIQUID INPUT WEIGHT
3.1 Weight Difference. Determine the amount of material
introduced to the process as the weight difference of the feed
material before and after each sampling run. In determining the
total Voc containing liquid usage, account for: (a) the initial
(beginning) VOC containing liquid mixture; (b) any solvent added
during the test run; (C) any coating added during the test run;
and (d) any residual VOC containing liquid mixture remaining at
the end of the sample run.
3.1.1 Identify all points where VOC containing liquids are
introduced to the process. To obtain an accurate measurement of
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VOC containing liquids, start with an empty fountain (if
applicable). After completing the run, drain the liquid in the
fountain back into the liquid drum (if possible), and weigh the
drum again. Weigh the VOC containing liquids to ±0.5 percent of
the total weight (full) or ±0.1 percent of the total weight of
VOC containing liquid used during the sample run, whichever is
less. If the residual liquid cannot be returned to the drum,
drain the fountain into a preweighed empty drum to determine the
final weight of the liquid
3.1.2 If it is not possible to measure a single
representative mixture, then weigh the various components
separately (e.g., if solvent is added during the sampling run,
weigh the solvent before it is added to the mixture). If a fresh
drum of voc containing liquid is needed during the run, then
weigh both the empty drum and fresh drum.
3.2 Volume Measurement (Alternative). If direct weight
measurements are not feasible, the tester may use volume meters
and flow rate meters (and density measurements) to determine the
weight of liquids used if it can be demonstrated that the
technique produces results equivalent to the direct weight
measurements. If a single representative mixture cannot be
measured, measure the components separately.
4. DETERMINATION O ’ VOC CONTENT IN INPUT LIQUIDS
4.1 Collection of Liquid Samples.
4.1.1 Collect a l’-pint or larger sample of the VOC
containing liquid mixture at each application location at the
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beginning and end of each test run. A separate sample should be
taken of each VOC containing liquid added to the application
mixture during the test run. If a fresh drum is needed during
the sampling run, then obtain a sample from the fresh drum.
4.1.2 When collecting the sample, ground the sample
container to the coating drum. Fill the sample container as
close to the rim as possible to minimize the amount of headspace.
4.1.3 After the sample is collected, seal the container so
the sample cannot leak out or evaporate.
4.1.4 Label the container to identify clearly the contents.
4.2 Distillation of VOC.
4.2.1 Assemble the rotary evaporator as shown in
Figure 204F-l.
4.2.2 Leak check the rotary evaporation system by aspirating
a vacuum of approximately 20 mm Hg from absolute. Close up the
system and monitor the vacuum for approximately 1 minute. If the
vacuum falls more than 25 mm Hg in 3. minute, repair leaks and
repeat. Turn of f the aspirator and vent vacuum.
4.2.3 Deposit approximately 20 ml of sample (inks, paints,
etc.) into the rotary evaporation distillation flask.
4.2.4 Install the distillation flask on the rotary
evaporator.
4.2.5 Immerse the distillate collection flask into the ice
water bath.
4.2.6 Start rotating the distillation flask at a speed of
approximately 30 rpm.
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4.2.7 Begin heating the vessel at a rate of 2 to 3°C per
minute.
4.2.8 After the hot oil bath has reached a temperature of
50°C or pressure is evident on the mercury manometer, turn on the
aspirator and gradually apply a vacuum to the evaproator to
within 20 mm Hg of absolute. Care should be taken to prevent
material burping from the distillation flask.
4.2.9 Continue heating until a temperature of 110°C is
achieved and maintain this temperature for at least 2 minutes, or
until the sample has dried in the distillation flask.
4.2.10 Slowly introduce the N 2 sweep gas through the purge
tube and into the distillation flask, taking care to maintain a
vacuum of approximately 400-mm Hg from absolute.
4.2.11 Continue sweeping the remaining solvent VOC from the
distillation flask and condenser assembly for 2 minutes, or until
all traces of condensed solvent are gone from the vessel. Some
distillate may remain in the still head. This will not affect
solvent recovery ratios.
4.2.12 Release the vacuum, disassemble the apparatus and
transfer the distillate to a labeled, sealed vial.
4.3 Preparation of VOC standard bag sample.
4.3.1 Assemble the bag sample generation system as shown in
Figure 204F-2 and bring the water bath up to near boiling
temperature.
4.3.2 Inflate the Tedlar bag and perform a leak check on the
bag.
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4.3.3 Evacuate the bag and close the bag inlet valve.
4.3.4 Record the current barometric pressure.
4.3.5 Record the starting reading on the dry gas meter, open
the bag inlet valve, and start the dilution zero air flowing into
the Tedlar bag at approximately 2 liters per minute.
4.3.6 The bag sample VOC concentration should be similar to
the gaseous VOC concentration measured in the gas streams. The
amount of liquid VOC required can be approximated using equations
in Section 6. Using Equation 204F-4, calculate by assuming
RF is 1.0 and selecting the desired gas concentration in terms of
propane, Cr 3 . Assuming is 20 liters, M 1 , the approximate
amount of liquid to be used to prepare the bag gas sample, can be
calculated using Equation 204F-2.
4.3.7 Quickly withdraw an aliquot of the approximate amount
calculated in Section 4.3.6 from the distillate vial with the
microliter syringe and record its weight from the analytical
balance to the nearest 0.01 mg.
4.3.8 Inject the contents of the syringe through the septum
of the volatilization vessel into the glass wool inside the
vessel.
4.3.9 Reweigh and record the tare weight of the now empty
syringe.
4.3.10 Record the pressure and temperature of the dilution
gas as it is passed through the dry gas meter.
91

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4.3.11 After approximately 20 liters of dilution gas have
passed into the ‘redlar bag, close the valve to the dilution air
source and record the exact final reading on the dry gas meter.
4.3.12 The gas bag is then analyzed by Flit within 1 hour of
bag preparation in accordance with the procedure in Section 4.4.
4.4 Determination of VOC response factor.
4.4.1 Start up the Flit instrument using the same settings as
used for the gaseous VOC measurements.
4.4.2 Perform the Flit analyzer calibration and linearity
checks according to the procedure in Section 5.1.. Record the
responses to each of the calibration gases and the back-pressure
setting of the Flit.
4.4.3 Connect the Tedlar bag sample to the Flit sample inlet
and record the bag concentration in terms of propane. Continue
the analyses until a steady reading is obtained for at least
30 seconds. Record the final reading and calculate the RF.
4.5 Determination of coating VOC content as VOC (V 1 ).
4.5.1 Determine the VOC content of the coatings used in the
process using EPA Method 24 or 24A as applicable.
5. CALIBRATION AND QUALITY ASSURANCE
5.1 PIA Calibration and Linearity Check. Make necessary
adjustments to the air and fuel supplies for the Flit and ignite
the burner. Allow the FIA to warm up for the period recommended
by the manufacturer. Inject a calibration gas into the
measurement system and adjust the back-pressure regulator to the
92

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value required to achieve the flow rates specified by the
manufacturer. Inject the zero- and the high-range calibration
gases and adjust the analyzer calibration to provide the proper
responses. Inject the low- and mid-range gases and record the
responses of the measurement system. The calibration and
linearity of the system are acceptable if the responses for all
four gases are within 5 percent of the respective gas values. If
the performance of the system is not acceptable, repair or adjust
the system and repeat the linearity check. Conduct a calibration
and linearity check after assembling the analysis system and
after a major change is made to the system. A calibration curve
consisting of zero gas and two calibration levels must be
performed at the beginning and end of each batch of samples.
5.2 Systems Drift Checks. After each sample, repeat the
system calibration checks in Section 5.1 before any adjustments
to the FIA or measurement system are made. If the zero or
calibration drift exceeds ±3 percent of the span value, discard
the result and repeat the analysis.
5.3 Quality Control. A minimum of one sample in each batch
must be distilled and analyzed in duplicate as a precision
control. If the results of the two analyses differ by more than
±10 percent of the mean, then the system must be reevaluated and
the entire batch must be re-distilled and analyzed.
5.4 Audits.
5.4.1 Audit Procedure. Concurrently, analyze the audit
sample and a set of compliance samples in the same manner to
93

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evaluate the technique of the analyst and the standards
preparation. The same analyst, analytical reagents, and
analytical system shall be used both for compliance samples and
the EPA audit sample. If this condition is met, auditing of
subsequent compliance analyses for the same enforcement agency
within 30 days is not required. An audit sample set may not be
used to validate different sets of compliance samples under the
jurisdiction of different enforcement agencies, unless prior
arrangements are made with both enforcement agencies.
5.4.2 Audit Samples. Audit Sample Availability. Audit
samples will be supplied only to enforcement agencies for
compliance tests. The availability of audit samples may be
obtained by writing:
Source Test Audit Coordinator (STAC) (MD—77B)
Quality Assurance Division
Atmospheric Research and Exposure Assessment Laboratory
U.S. Environmental Protection Agency
Research Triangle Park, NC 2771].
or by calling the STAC at (919) 541-7834. The request for the
audit sample must be made at least 30 days prior to the scheduled
compliance sample analysis.
5.4.3 Audit Results. Calculate the audit sample
concentration according to the calculation procedure described in
the audit instructions included with the audit sample. Fill in
the audit sample concentration and the analyst’s name on the
audit response form included with the audit instructions. Send
one copy to the EPA Regional Office or the appropriate
94

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enforcement agency, and a second copy to the STAC. The EPA
Regional Office or the appropriate enforcement agency will report
the results of the audit to the laboratory being audited.
Include this response with the results of the compliance samples
in relevant reports to the EPA Regional Office or the appropriate
enforcement agency.
6. NOMENCLATURE
B = Volume of bag sample volume, liters.
C 3 = Concentration of bag sample as propane, mg/liter.
C 0 = Concentration of bag sample as VOC, mg/liter.
K = 0.00183 ing propane/(liter-ppm propane)
L = Total VOC content of liquid input, kg propane.
ML = Mass of VOC liquid injected into the bag, ing.
= Volume of gas measured by DGM, liters.
PM = Absolute DGM gas pressure, mm Hg.
STD = Standard absolute pressure, 760 mm Hg.
R 3 = FIA reading for bag gas sample, ppm propane.
RF = Response factor for VOC in liquid,
weight VOC/weight propane.
RF = Response factor for VOC in liquid J,
weight VOC/weight propane.
TM = DGM temperature, °K.
T STD = Standard absolute temperature, 293°K.
= Initial VOC weight fraction of VOC liquid J.
VFJ = Final VOC weight fraction of VOC liquid J.
VAJ = VOC weight fraction of VOC liquid J added during the
run.
95

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= Weight of VOC containing liquid J at beginning of
run, kg.
= Weight of VOC containing liquid J at end of run, kg.
WAJ = Weight of VOC containing liquid J added during the
run, kg.
7. CALCULATIONS
7.1 Bag sample volume.
= MV TSTD PM Eq. 204F-l
7.2 Bag sample VOC concentration.
C 0 = Eq. 204F—2
7.3 Bag sample VOC concentration as propane.
C 3 = Rc 3 K Eq. 204F-3
7.4 Response Factor.
7.5 Total VOC Content of the input VOC Containing Liquid.
RF = — Eq. 204F—4
L = E V W 1 - VFJ WFJ + V W Eq. 204F-5
96

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CONDENSER
TEFLON ___
PURGE TUBE
o-3O ’ HG __ —
MA NOME 1 E fl//
OIL
TEMPE RATURE
DISTtL LATE
COLLECTION
FLASK
ROTARY
EVAPORATOR
FLASK WI
TUBULAT ION
(0
- .4
DI T LLAT ON
I: I
Ice
Water
Bath
R
GLYC OL
COOLING! CIRCULATING
B AT H
Figure 204F-l. VOC distillation system apparatus.

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U-TUBE
MAI’I CIMETE R
TEDLAP BAG
31) LITER
CAPACITY
JJ- ’RI NGE——--
(0
ETER OUTLET
EMPE Ri TURE VOLATILIZATION
VESSEL
WATER BATH
TEMPER t’JU RE
PROBE
ACTI\/ATED
CHARCOAL-
MOLECULAR
SIEVE
DR (
GAS
METER
LAGS WOOL
G5. GAS
HEATING COIL
HOT WATER
— BATH
STIR R1 NIG
HOT PLATE
Fiqure 204F-2 Tedlar gas ba ieneration systPm apparatus.

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34

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Sr 4
j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
RESEARCH TRIANGLE PARK NC 27711
_!_
PPO ji_ i a AIR OU EP NNING
AND STANDARDS
MEMORANDI M
SUBJECT: 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
TO: See Addressees
This memorandum is to provide guidance to the EPA Regional Offices on delegation of
discretionary authorities relating to air toxics in 40 CFR part 63, subpart A (the General
Provisions) to State and Local Air Pollution Control (SIL) agencies through 40 CFR part 63,
subpart E (Approval of State Programs). Under the General Provisions, the EPA Administrator
has the authority to approve certain changes to, or make decisions under, specific General
Provisions r quir mentS. Questions have been raised by th P gions a o .‘hether SIL gc cies
may make the same discretionary decisions when they are delegated the General Provisions.
In explaining the straight delegation process for delegating air toxics provisions to S/L
agencies under 40 CFR part 63, subpart E, we did not clarify what discretionary authorities are
delegated to SIL agencies when they seek straight delegation of the General Provisions.
Although this is briefly discussed in the proposed General Provisions’ preamble ( Feder i
Register , August 11, 1993, page 42775-42777), the forthcoming proposed subpart E revisions
will fill that gap by clarifying which discretionary authorities may be delegated to S/L agencies
through straight delegation of the General Provisions. At your discretion, the Regional Offices
must then specify in delegation agreements or documents which of the subpart A authorities are
being delegated to each State. We recommend that you begin implementing these changes as
soon as possible. Therefore, this memorandum is intended to explain the changes and provide
guidance for you to begin implementing the changes now. Neither this memorandum nor the
subpart E rulemaking changes any source-specific decisions that have already been made under
the General Provisions, but the guidance in this memorandum should be used as guidance for all
future decisions regarding the General Provisions’ authorities.
To implement these changes, you will need to clarify with your SIL agencies which
General Provisions’ authorities have and have not been delegated. In cases where you may have
delegated authorities in the past that should no longer be delegated, you will need to inform your
S/L agencies that delegation of these authorities will be revoked.

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2
At this time, we are 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 through subpart E and, instead, is
automatically granted to States as part of their part 70 operating permits program approval
regardless of whether the operating permits progran 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 are 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 1 12(i)(1) 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): 11 is guidance only addresses the case whcie the Ge eial
Provisions are delegated to an SIL agency through straight delegation under section 112(1)
provisions which were promulgated in 40 CFR part 63, subpart E. Therefore, the guidance
addresses Sit agencies’ authority to make source-specific decisions only, nQl source-category
wide decisions. Any Sit 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 list 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
‘See, for example, February 24, 1983 Memorandum on Delegation of New Source
Perfo’inance 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). 2 Past guidance issued for NSPS
changes has pennitted delegation to SIL agencies of all the Administrator’s authorities except
those that require Federal rulemaking, 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 SIL 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 2for Improved Implementation of the Part 70 Operating Permits Program, 3
permits SIL agencies to alter SIP requirements so long as the alternative requirements are shown
to be equally stringent and are within a pre-approved protocol (and so long as public review is
provided and EPA approval is obtained). The SIL agencies can show equivalent stringency by
providing substantive criteria in SIPs governing the implementation of alternative requirements.
We recognize that 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 SIL agencies on their first decision-making for some authorities, thus gaiaillg
assurance that the Sit agencies can and will make appropriate decisions. We also recommend
that Regions obtain copies of all Sit agencies’ alternative determinations for their records;
especially where new issues are addressed.
De’egation of Specific Authorities
The part 63 General Provisions lists 15 specific types of authorities for which the
Administrator may make discretionary decisions on a source-specific basis. When the General
Provisions are delegated to an Sit 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 outlined in this memorandum (such as intermediate changes to test methods),
delegation 7-12 1 must first be revised to delegate these authorities to the Regions. We intend to
make this revision, i.e., to delegation 7-12 1, as soon as possible. Additionally, the Emission
2 However, we are expanding our interpretation of previous policy for the applicability
determinations’ discretionary authority.
Memorandum from Lydia Wegman, Deputy Director, OAQPS, to Regional Air Division
Directors, March 5, 1996.

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4
Measurement Center of 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 SIL 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: (919) 541-1039
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 relati”e significance of each discretionary type of decision: they are those
authorities which can be delegated and those authonties which cannot be delegated. ihese
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 SIL agency
decision-making which will ensure that the delegated authorities are being adequately
implemented and enforced, we do not want to impede Sit 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 Sit 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 Sit agencies, so long as the Sit
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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5
General Provisions 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 SIL 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 of construction 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 SIL 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 I 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 deral Register notice. Therefore. th” e 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
Authorities
Section 63.1’
Applicability Determinations
Section 63.6(e)
Operation and Maintenance Requirements -
Responsibility for Detennining Compliance
Section 63.6(f)
Compliance with Non-Opacity Standards -
Responsibility for Determining Compliance
Section 63.6(h)
Compliance with Opacity and Visible
Emissions Standards - Responsibility for
Determining Compliance
Sections 63.7(c)(2)(i) and (d)
Approval of Site-Specific Test Plans
Section 63.7(e)(2)(i) ’
Approval of Minor Alternatives to Test
Methods (see Attachment 1)
Sections 63.7(e)(2)(ii) and (f)’
Approval of Intermediate Alternatives to Test
Methods (see Attachment 1)
Section 63.7(e)(2)(ii)
Approval of Shorter Sampling Tim s and
Volumes When Necessitated by Process
Variables or Other Factors
Sections 63.7(e)(2)(iv) and (h)(2), (3)
Waiver of Performance Testing
Sections 63.8(c)(1) and (e)(l)
Approval of Site-Specific Performance
Evaluation (monitoring) Test Plans
Section 63.8(f)’
.
Approval of Minor Alternatives to
Monitoring (see Attachment 1)
Section 63.8(1)’
Approval of Intermediate Alternatives to
Monitoring (see Attachment 1)
Sections 63.9 and 63.10
Approval of Adjustments to Time Periods for
Submitting Reports 4
‘Regions should be notified when these decisions are made by S/L agencies who have
been delegated authority to make these kinds of decisions.
4 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
Authority
Section 63.6(g)
Approval of Alternative Non-Opacity
Emission Standards
Section 63.6(h)(9)
Approval of Alternative Opacity Standard
Sections 63.7(e)(2)(ii) and (f)
Approval of Major Alternatives to Test
Methods (see Attachment 1)
Section 63.8(f)
Approval of Major Alternatives to Monitoring
(see Attachment 1)
Section 63.10(f)
Waiver of Recordkeeping -- all

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Addressees:
Director, Office of Ecosystem Protection, Region I
Director, Division of Environmental Planning and Protection, Region II
Director, Air Protection Division, Region III
Director, Air, Pesticides and Toxics Management Division, Region TV
Director, Air and Radiation Division, Region V
Director, Multimedia Planning and Permitting Division, Region VI
Director, Air, RCRA and Toxics Division, Region VII
Assistant Regional Administrator, Office of Pollution Prevention,
State and Tribal Programs, Region Vifi
Director, Air and Toxics Division, Region LX
Director, Office of Air Quality, Region X
Attachments
cc: B. Buckheit, 2242A
C. Garlow,2111A
B. Hunt, MD-14B
B. Jordan, MD-13
S. Mitoff, 2223A
J. Seitz,MD-1O
L. Wegman, MD-tO
bcc: K. Blanchard,MD-12
F. Dimmick, MD-12
K. Kaufinan,MD-12
J. Szykman,MD-13
Regional Air Toxics Coordinators
This letter has been concurred with William Lamason, SCGA, Emission Measurement Center,
Charles Garlow, OECA, and verbally from Patrick Chang, OGC.
OAQPS:ITPJD:IIG:TDriscoll:cjbaines:xl -53 19:MD-12:June 17, 1998:
File: Driscoll/delauth9.mem

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ATTACHMENT I
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
stnngency 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. E çamples 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
irA rrnediate changes tc test meth..,d ;whjde, buL are iimite tc : (1) r: difications 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 “retest” 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 I 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 categoties 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 th nionit .,ring requirernenLs); (c) is ite- pe ..ific, nadc to iefiect 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:
(I) 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 environmental 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); (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.
2

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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 mesho4 bit these types of changes are not Included within the scope
of sin or changes
3

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ATTACHMENT 2
DESCRIPTION OF THE TECHNICAL REVIEW
PROTOCOL FOR PERFORMANCE TESTS OF
CALIFORNIA CHROME PLATING SOURCES
Introduction
In 1988, the CARB adopted a statewide airborne toxics control measure (ATCM) for the
control of hexavalent chrome emissions from chrome platers (both decorative and hard) and
chromic acid anodizers. In general, the California ATCM required facilities to install equipment
or modify their operation to minimize emissions of hexavalent chrome. In addition to installing
equipment and making the necessary process changes, hard chrome platers were required to
demonstrate compliance by performing a District -approved source test.
Since the State ATCM was adopted, the majority of hard chrome platers in California
have complied with the requirements by installing and source testing their control equipment to
demonstrate compliance with the California standards.
On January 25, 1995, the EPA promulgated a national regulation to control emissions of
chromium from chrome platers and anodizers. This regulation is known as the NESHAP for
hard and decorative chromium lec roplating and chromium ancdiziiig tanks.. This regulation
also requires facilities to demonstrate compliance by performing an approved emission source
test.
Further, on January 30, 1997, the EPA promulgated certain revisions to the chrome
NESHAP dealing with the monitoring, recordkeeping and reporting (MRR) requirements for
hard chromium electroplaters and chromic acid anodizers in California. Specifically, EPA
extended the MRR compliance deadline from January 25, 1997 to July 24, 1997. This action
was taken to allow time for CARB to establish and get approved MIRR requirements for these
sources that would be at least as stringent as the Federal NESHAP requirements; however, that
work remains unfinished. The Federal NESHAP requires these sources to monitor applicable
parameters on and after the date on which the initial performance test is required to be
completed, which is July 24, 1997. It is consistent with the revised NESHAP MRR requirements
that all California source tests of hard chrome platers and chromic acid anodizers conducted prior
to July 24, 1997 be reviewed according to the performance test review criteria contained herein
to determine compliance with the applicable NESHAP emission standard. This recommendation
is made notwithstanding the restrictions identified in 40 CFR 63 section 63.344(b)(2).
This criteria was developed by a team of chrome plating/regulatory professionals
representing EPA, CARB, Bay Area Air Quality Management District, South Coast Air Quality
Management District (SCAQMD), and Pacific Environmental Services (industry). The criteria
are necessary in reviewing the existing chrome plating emissions source tests in California. It is

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Attachment 2 Continued
estimated that in California there are approximately 100 hard chrome platers, 150 decorative
chrome platers and 50 chromic acid anodizers, over half of which have performed source tests
(where applicable). Many of these source tests have sufficient information and quality control to
demonstrate compliance with the Federal NESHAP for chrome plating and anodizing. This
document is to present and discuss the criteria developed for this purpose.
NESHAP Source Testing for Compliance
The NESHAP standard for chrome plating and anodizing indicates that source testing to
demonstrate compliance with the standard is required unless the facility is a decorative chrome
plater or chromic acid anodizer choosing the alternate emission limitation of 45 dyne/cm bath
surface tension. In accordance with this, 40 CFR part 63 specifies acceptable source test
procedures, methods, materials, etc. Although the requirements outlined in the NESHAP are
specific, there are allowances for the “owner or operator of an affected source conduct [ ing]
performance testing at startup to obtain an operating permit in the State in which the affected
source is located, the results of such testing may be used to demonstrate compliance with this
subpart. . . “(40 CFR 63.344). The following discussion presents a step-by-step approach for
determining whether an existing source test in California can be used to demonstrate compliance
with the chrome plating and anodizing NESHAP.
r ete 1 m;iiing f eu. e C n e Used t. ne st-...tc C p!ic ce
The Chrome Plating Source Test Review Criteria Section (see below) provides a step-by-
step process for the review of existing source tests in light of the NESHAP standards. The
following is a discussion of each of the criteria steps from the Chrome Plating Source Test
Review Criteria Section with an explanation of the rationale for the chosen process.
Criteria Step 1. Compliance with the NESHAP Standards Demonstrated ? The NESHAP
standards are in terms of milligram of total chrome per dry standard cubic meter (mg/dscm) of
ventilation gas flow. The NESHAP standards are listed in 40 CFR part 63, section 63.342.
Emission standards vary depending on whether the facility performs hard chrome plating,
decorative chrome plating, chromic acid anodizing, or whether the facility is new or existing, and
how large the facility is (how much chrome plating is performed on an annual basis).
Most of the existing chrome emission source test reports provide a variety of information
including test date and time, plating bath rectifier amp-hours, sample volume, ventilation gas
velocity, sample flowrate percent isokinetic, duct temperature, flowrate, ventilation gas water
content, total and hexavalent chrome catch, as well as chrome emissions on a process rate (amp-
hrs) arid concentration basis.
2

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Attachment 2 Continued
- If the resulting average source test emission value is less than or equal to the applicable
NESHAP standard, the source test acceptability determination can continue.
- If the existing source test does not demonstrate compliance with the NESHAP, then the
facility operator must decide what course of action to take for a remediation. For example, the
facility operator may need to make some operational or design change to lower the emission
rate to achieve compliance with the NESHAP standards. A retest will be required. All future
source tests should be conducted according to the requirements and specifications of 40 CFR
part 63.344 Performance test requirements and test methods.
Criteria Step 2. Was the Source Test Conducted Under Close Approximation of Normal
Operating Conditions ? Normal operating conditions are defined as normal bath temperatures
(± 10 deg F), normal bath composition range (within 5 percent), normal rectifier amperage range,
normal agitation rates, and normal voltage loadings. For the purpose of demonstrating
compliance, normal operating conditions can also include conditions needed to meet specific
source test requirements such as the use of dummy parts to be plated.
Although there can be a significant variation in the operating conditions from one plating
shop to another, most chrome platers are well aware of their individual normal operating
conditions and operate on a consistent basis with these constraints. Significant variation from the
normal openting mode is nde ir&le I’cr quaiity assuranc an c r ro1abi i y puiposes.
Facilities may have increased the source test sampling period in order to capture the
requisite sample mass for analytical detection. Extending the source test period may require the
use of dummy parts rather than the real parts that would normally be plated. An example of this
is a Bay Area plater which plates automobile body part dies. Plating such a part for a longer than
normal penod would result in a plated part with tolerances outside of specification limits. To
avoid ruining an expensive automobile die, a dummy part (a large sheet of steel, sized similar to
the die) is plated for the time period required to meet capture requirements.
- If the source test was conducted under close approximation of normal operating
conditions, then the evaluator can proceed to the next step in the evaluation process, step 3.
- If the source test was conducted under conditions deemed abnormal, the facility must
conduct a new source test. All retests should be conducted according to the requirements and
specifications of 40 CFR part 63.344 Performance test requirements and test methods.
Criteria Step 3. Correct Use of Approved Test Method ? Source tests to demonstrate
compliance with the requirements of the NESHAP must use the EPA approved source test
method. According to 40 CFR part 63.344 the following source test methods have been deemed
acceptable to demonstrate compliance with the NESHAP standards: EPA method 306 or 306A
3

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Attachment 2 Continued
(conducted after December 1991) and CARB method 425. The EPA has granted a verbal
approval for the use of the SCAQMD method 205.1 for total chrome analysis only and will issue
an official letter soon.
Any use of an approved source test method must be done in strict accordance with the
requirements and specifications of the method itself and performance testing requirements of
section 63.344 of the NESHAP. Such requirements include sample point locations, use of EPA
method 5 source test train, impinger solution compositions, isokinetic ratios, sample handling,
sampling times, sample volume, catch mass requirethents, etc. Implicit in the use of an approved
source test method is the correct use of the method itself. Any variation in the source test
procedure will trigger a retest unless the change has been approved beforehand by the’EPA and
the local permitting authority.
Criteria Step 4. Number of Runs : Paragraph 63.7(e)(3) of the part 63 General Provisions
specifies at least three sampling runs to make up one source test. If three sampling runs were
performed, the reviewer is directed to proceed on to review criteria step 5 (catch mass
requirement).
< 3 sampling runs : Previous source tests attempted to meet the requirement for at least
three sampling runs. For some previous California source tests, the expected ultra-low
concentrations of cz rome in the exhaust requited the ttse of longer than ii iinai s .iurc test 1 t ns
(normal sampling run length is 120 minutes and normal sampling volume is 1.7 dscm 4 ).
Some operators chose (with local agency approval) to perform longer sample runs to
capture enough sample to produce a chrome emission number and to reduce the potential for
error with minimal chrdme capture. In California the longer times ranged from 3 to 8 hours per
sampling run Due to the added expense, potential problems of multiple long sampling runs, and
the potential operational conflicts due to reduced production from multiple sampling runs, these
facilities proposed performing one or two long duration source tests instead of three or more
shorter runs.
For tests where less than three sampling runs were conducted, the reviewer is directed to
go to criteria step 6 to determine if the source testing results are far enough below the NESHAP
emission limit to warrant acceptance.
4 See 40 CFR part 63.344(c)(1). Method 306 or method 306A, “Determination of
Chromium Emissions From Decorative and Hard Chromium Electroplating and Anodizing
Operations.”
4

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Attachment 2 Continued
Regarding future source testing/Retesting: Unless prior approval is obtained from EPA
and the local air quality agency, future source tests will require at least three sampling runs to be
acceptable.
Criteria Step 5. Catch Mass Requirements : Consistent with the discussion in section 2.2.2 of
method 306 in 40 CFR part 63, appendix A, it is recommended that th catch mass requirement
be at least five times the limit of detection for the analytical method chosen. Such catch mass
requirements produce analytical results well within the range of confidence. If the catch mass
requirements are not met, the reviewer is directed t criteria step 6.
Criteria Step 6. Source Test Emission Results Compared With NESHAP Limit : If the
catch mass requirement is not met, the reviewer evaluates the resulting emission rate according
to criteria step 6. Criteria step 6 requires that the source test results be  1/5 of the respective
NESHAP standard; if this specification is met, then the existing source test can be accepted for
demonstrating compliance with the NESHAP. A factor of one fifth (20 percent) is consistent
with the catch mass requirements.
Criteria step 6 directs that if the source test results were greater than 1/5 of the NESHAP
standard, the facility must retest. All retests should be conducted accordingAo the requirements
and specifications of 40 CFR part 63.344 Performance test requirements and test methods.
Regarding future source testingfRetesting: Unless prior approval is given from EPA and
the local air quality agency, all future source tests will require at least three sampling runs to be
acceptable. The catch mass requirements identified in 40 CFR part 63, section 63.344 also must
be met unless the source test emission result is <1/5 of the respective NESHAP emission limit or
is below detection levels. 5
Other Issues: Establishing Monitoring Parameter Ranges to Ensure Ongoing Compliance
Continued compliance with the chrome plating and anodizing NESHAP is assured by
monitoring of specific operating parameters associated with the control equipment. Normally
operating parameter values or ranges are established in conducting the performance test. Since
many California source tests were performed before the final adoption and understanding of the
NESHAP monitoring requirements, some alternate procedures may be necessary to establish
appropriate ranges/values for the monitoring parameters.
5 Assumes the minimum sampling times and sample volumes requirements as
specified in 40 CFR 63, section 63.344 were met or exceeded.
5

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Attachment 2 Continued
The Establishing Monitoring Pararmeters to Ensure Ongoing Compliance Section (see
below) provides an approach to establishing the monitoring parameter compliance ranges after
the performance test is completed. ‘Where applicable, 6 the basic requirements include the
following:
(1) Source test conducted during normal operating conditions.
(2) Flowrate was monitored/recorded at outlet of emission control device.
Control Device Pressure Drop and Velocity Pressure : Assuming the above criteria items
(1) and (2) were met and that the current ventilation gas flowrate is within 10 percent of the
flowrate determined during the source test, the current control device pressure drop and/or
velocity pressure can be used to establish the appropriate ranges/value for the monitoring
parameters. Guidance for the development of the operating parameter range is found in
40 CFR 63 section 63.344.
Surface Tension Parameter Development : If the surface tension was monitored during
the performance test, the facility operator should use the higher of either (1) the surface tension
parameter measured during the source test; or (2) 45 dyne/cm as specified i i the NESHAP. If
the surface tension was not monitored during the source test, the facility should use 45 dyne/cm
as die maximum dllovfa )le su façe tciisiOfl foL’ riiurk tor ongoing czL1I l ice.
Foam Thickness Parameter Development : If the foam additive thickness was monitored
during the performance test, the facility operator should use the lessor of either (1) the foam
thickness parameter measured during the source test; or (2) the 1 inch foam thickness as specified
in the NESHAP. If the foam thickness was not monitored during the source test, then the facility
should use 1 inch foam thickness as the minimum allowable thickness parameter for monitoring
ongoing compliance.
6 Flowrate monitoring is not possible and therefore not applicable for those plating
baths without ventilation systems (surfactant additive only controls/surface tension
regulated plating baths).
6

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Attachment 2 Continued
Chrome Plating Source Test Review Criteria
The following criteria are to be used for those chrome plater and anodizer performance tests
conducted in the State of California prior to July 24, 1997. If the source test cannot be evaluated
using these criteria, then the facility owner/operator should contact Kingsley Adeduro, EPA
Region LX at (415) 744-1177 for guidance.
(1) Compliance with the NESIJAP Standards Demonstrated ?
Y: Goto(2)
N: Evaluate operation/make necessary changes then perform retest according to
40 CFR 63.344.
(2) Was source test conducted under close approximation of normal operating
conditions’ ?
Y: Go to (3)
N: Retest according to 40 CFR part 63.344.
(3) Correct Use of Approved Test Method 8 [ CARB 425, EPA 306, EPA 306A (conducted
after 12/9 1), SCAQMD 205.1 (total chrome only)]
Y: Go to (4)
N: Retest ac ordirg to 40 CFR part 63.344.
(4) Number of Sampling Runs
(a) 3 or more runs: Go to (5)
(b) I or 2 runs: Go to (6)
7 Normal operating conditions defined as normal bath temperatures (± 10 deg), normal
bath composition range (within 5 percent), within normal rectifier amperage range, normal
agitation rates, voltage loadings, etc. Normal operating conditions can include conditions
required to meet the specific source test requirements such as the use of “dummy parts” to be
plated andlor increased length of plating run.
8 Verify that the source test was conducted properly according to established protocols
identified in the source test method. Specific requirements include sample point locations, use of
EPA method 5 source test train, impinger solution compositions, isokinetic ratios, sample
handling, sampling times, sample volume, catch mass requirements, etc.
7

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Attachment 2 Continued
(5) Catch Mass Requirements (at least 5 times the limit of detection for the analytical method)
Hex Chrome Analysis Methods Diphenylcarbazide Colorimetric Test
Ion Chromatography with Post-Column Reactor (ICPCR)
Total Chrome Analysis Methods: Atomic Absoiption Graphite Furnace (AAGF)
Inductively Coupled Argon Plasmography (ICAP)
Y: SIT is acceptable
N: Go to (6)
(6) Source Test Emission Results <20 precut (1/5) of the NESHAP Emission Limit ?
Y: SIT is acceptable
N: Retest according to 40 CFR part 63.344.
8

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Attachment 2 Continued
Establishing Monitoring Parameters to Ensure Ongoing Compliance
(A) Were normal operating conditions 1 employed during source test performance?
Y: Goto(B)
N: Retest according to source testing and operating parameter development guidelines of
40 CFR part 63.344.
(B) Were appropriate operating parameters monitored/recorded during the source test?
Y: Use measured parameter values to establish ranges for ongoing compliance
monitoring.
N: (a) If bath emissions controlled by bath controls (surfactant additive or foam) only
go to (E).
(b) If bath emissions controlled by bath controls downstream control device go
to (C) and (E).
(c) If bath emission controlled by downstream control device(s) go to (C).
(C) Was control device outlet flow rate recorded during the source test?
Y: Go to (D).
N: Retest according to source testing and operating parameter rang . development
guidelines of 40 CFR part 63.344.
(D) Deter 1 nine inlet velocity pressure compliant range as follows : (for PBS 2 only)
Collect concurrent data on facility’s inlet velocity pressure, and scrubber outlet flow
rate. If the current scrubber outlet flow rate is within 10 percent of the outlet flow rate
measured during the source testing, then the current inlet velocity pressure value can be
used to establish the compliant range for continuous monitoring.
Determine control device pressure drop complaint range as follows : (for CMP, FB Mist
Eliminator, PBS, HEPA Filter)
‘Normal operating conditions defined as normal bath temperatures (± 10 deg), normal
bath composition range (within 5 percent), within normal rectifier amperage range, normal
agitation rates, voltage loadings, etc. Normal operating conditions can include conditions
required to meet the specific source test requirements such as the use of “dummy parts” to be
plated and/or increased length of plating run.
2 PBS = Packed Bed Scrubber, CMP = Composite Mesh Pad, FB Mist Eliminator =
Fiberbed Mist Eliminator, HEPA Filter = High Efficiency Particulate Abatement Filter.
9

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Attachment 2 Continued
Collect concurrent data on pressure drop across the control device, and outlet flow rate.
If the outlet flow rate is within 10 percent of the outlet flow rate recorded during the
source testing, then the current pressure drop value can be used to establish the
compliant range for continuous monitoring if the controls are visually inspected and the
work practice standards are conducted immediately prior to collecting current pressure
drop data.
(E) Surfactant Additive Surface Tension : If surface tension was monitored during the
source test, use the higher of either (1) the surface tension developed during the source
test or (2) 45 dyne/cm surface tension for demonstration of ongoing compliance. If no
surface tension monitoring during source test, use 45 dyne/cm as surface tension
parameter for demonstration of ongoing compliance.
Foam Thickness : If foa.m thickness was monitored during the source test, use the
minimum thickness parameter for demonstration of ongoing compliance. If no foam
thickness monitoring during source test, use 1 inch foam blanket as parameter for
demonstration of ongoing compliance.
10

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY e,fr q..i
____ WASHINGTON, D.C. 20480
% PRIVILEGED AND CONFIDENTIAL
DELIBERATIVE DOCUMENT
ATTORNEY-CLIENT COMMUNICATION
MEMORANDUM LIAfl — 6 200ö GENERAL COUNSEL
TO: Granta Nakayama
Assistant Administrator
Office of Enforcement and Compliance Assistance
Susan Bodine
Assistant Administrator
Office of Solid Waste and Emergency Response
Regional Administrators, Regs. 1-X
Regional Counsel, Regs. 1-X
FROM: Ann R. Klee
General Counsel
SUBJECT: Applicability of Clean Air Act Section 11 2(r)(1) General Duty Clause and Section
11 2(r)(7) Risk Management Program to Liquefied Natural Gas Facilities
A number of EPA regions are involved in the review and licensing of proposed on- and
off-shore liquefied natural gas (LNG) distribution facilities. The Office of General Counsel
(OGC) has been working with regional and headquarter offices to coordinate the Agency’s
response to legal issues raised by these facilities. An issue that has arisen is the applicability of
the “general duty clause” of Clean Air Act (CAA) section 11 2(r)( I) and the Risk Management
Program (RMP) regulations under CAA section 1 12(r)(7). The purpose of this memorandum is
to clarify that the language of the statute and the legislative history demonstrate that Congress did
not intend the general duty clause and the RMP regulations to apply to LNG facilities to the
extent they transport, or store incident to transportation, extremely hazardous substances,
including methane.’ This memorandum supercedes all previous memoranda and opinions on
this topic. -
LNG facilities at which “extremely hazardous substances” are present for reasons other
than transportation or storage incident to transportation are subject to the general duty clause with
respect to those substances LNG facilities at which substances listed under CAA section
11 2(r)(3) are present in more than threshold quantities for reasons other than transportation or
storage incident to transportation are subject to the RMP regulations with respect to those
substances. Thus, for example, a LNG facility that stores ammonia for use at the terminal above
the applicable threshold would be subject to the general duty clause and the RMP for the
ammonia it stores.
Internet Address (URL) • httpJ/www epa.gov
Recycled/Recyclable . Prinled wih Vegetable Oil Based Inks on Recycled Paper (Minimum 20% Posiconsumer)

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Statutory Background
CAA section 112(r) establishes a two-tier system for preventing accidental releases of
“extremely hazardous substances” from “stationary sources.” The section 112(r)(l) general duty
clause requires stationary sources storing or using any extremely hazardous substance to identify
hazards associated with such substance and design and maintain a safe facility. RMP regulations
under section 11 2(r)(7) require stationary sources having more than a “threshold quantity” of a
‘regu1ated substance” to develop and implement “risk management programs” and submit “risk
management plans” describing those programs. “Regulated substances” are the chemicals
identified by EPA under section 1 12(r)(3) as posing the greatest risk to public health and the
environment in the event of an accidental release.
Both section 1 12(r)(l) and section 1 12(r)(7) apply to “stationary sources” Section
112(r)(2)(C) defines “stationary source” for the purpose of section 112(r) as “any buildings,
structures, equipment, installations or substance emitting stationary activities (i) which belong to
the same industrial group, (ii) which are located on one or more contiguous properties, (iii) which
are under the control of the same person (or persons under common control), and (iv) from which
an accidental release may occur.” This definition is similar but not identical to other CAA
definitions of “stationary source.”
The legislative history of section 112(r) indicates that Congress did not intend the term
“stationary source” to include transportation facilities (eg., LNG facilities) for purposes of either
section 112(r)(1) or section 1 12(r)(7). Members of the Conference Committee for the Clean Air
Act Amendments of 1990, which added section 112(r), stated that “ [ t]he conferees do not intend
the term ‘stationary source’ to apply to transportation, including the storage incident to such
transportation, of any regulated substance or other extremely hazardous substance under the
provisions of this subsection,” referring to Section 112(r). Joint Explanatory Statement of the
Committee of the Conference at 340 (emphasis added). 2
Section 112(r) provides both discretionary and mandatory regulatory authority. Under
section 1 12(r)(7)(A), the Agency “is authorized” to issue “release prevention, detection, and
correction requirements” that “may make distinctions between various types, classes, and kinds
of facilities.” Section 112(r)(7)(B)(i), by contrast, requires EPA to issue regulations “to provide,
2 This conference statement is particularly enlightening given the scope of the Senate’s
original version of 112(r), which sought to apply 1 12(r) to the “broadest set of activities.
including, but not limited to, transportation. . . activities” (emphasis added). The conference
made it clear that it was adopting a position contrary to the Senate’s original verswn.
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to the greatest extent practicable, for the prevention and detection of accidental releases of
regulated substances and for response to such releases. . . .“ It further stipulates that “ [ t]he
regulations shall cover storage.” The regulations must meet other criteria set forth in section
1 12(r)(7)(B)(ii), which provides, among other things, that the “regulations. . . shall require the
owner or operator of stationary sources at which a regulated substance is present in more than a
threshold quantity to prepare and implement a risk management plan to detect and prevent or
minimize accidental releases of such substances from the stationary source . .
j3 .gulatory History
In 1994, EPA issued a rule under section 1 12(r)(3) listing toxic and flammable chemicals
as “regulated substances” for purposes of the regulations EPA was required to issue under
section 1 12(r)(7)(B). As part of that rulemaking, EPA promulgated a definition of “stationary
source” that excluded “transportation, including storage incident to transportation, of any
regulated substance or any other extremely hazardous substance under the provisions of this part,
provided that such transportation is regulated under [ specified DOT regulations regulating LNG
terminals and pipelines].” 59 Fed. Reg. 4478, 4493 (January 31, 1994). EPA explained in the
rule’s preamble that “ [ f]or purposes of regulations under section 112(r), the term stationary
source does not apply to transportation conditions, which would include storage incident to such
transportation, of any 112(r) regulated substance. Pipelines, transfer stations, and other activities
already covered under DOT as transportation of hazardous substances by pipeline, or incident to
such transportation [ under the specified regulations} would not be covered.” Id at 4490.
In 1996, EPA proposed to revise the definition to clarify that exempt transportation
includes, but is not limited to, transportation activities subject to the DOT regulations specified
in the promulgated definition. The Agency explained that it “intended to exclude from the
definition of stationary source all transportation and storage incident to transportation to be
consistent with EPCRA [ the Emergency Planning and Coniniunity Right-to-Know Act].” 61 Fed.
Reg. 16,598, 16,601 (April 15, 1996). The Agency viewed CAA section 112(r) as an extension
of EPCRA, which excludes transportation and storage incident to transportation. See, e.g., 58
Fed. Reg. 5,102 (January 19, 1993). The legislative history of section 112(r) confirms that
Congress considered section 112(r) as building on EPCRA’s requirements that covered facilities
inform local and state officials of extremely hazardous chemicals at the facilities and that local
and state officials plan for responding to a release of those chemicals. See, e.g, S. Rept. 101-228
at250.
In 1998, EPA promulgated a revised definition of “stationary source” that remains in
effect today. 63 Fed. Reg. 640, 642-43 (January 6, 1998). It clarified, among other things, that
the exemption for regulated substances in transportation, or in storage incident to such
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transportation, is not limited to LNG tenninals and pipelines subject to the DOT regulations cited
in the definition. Id at 642. One commenter on the proposed rule noted that in proposing to
revise the definition to more broadly exclude transpoi-tation, including storage incident to
transportation, EPA was “following the wishes of Congress,” citing the legislative history
discussed above The commenter requested that EPA provide a written confirmation of its
interpretation of congressional intent. EPA responded as follows:
EPA agrees that the exclusion of transportation and storage incident to
transportation from the definition of stationary source is consistent with
Congressional intent. The definition of stationary source that EPA is
promulgating reflects the language of the Congressional report quoted by
one of the commenters.
List of Substances and Thresholds for Accidental Release Prevention, Proposed Amendments:
Summary and Response to Comments (hereinafter RTC), December 1997, p. 21.
In 1996, EPA issued its R1vlP regulations under section 1 12(r)(7)(B), thereby discharging
its mandatory duty to issue regulations under that provision. The RMP regulations added the
substantive requirements that apply to “stationary sources,” as defined by the list rule, at which
“regulated substances” are present above applicable threshold quantities. When the “stationary
source” definition was revised in 1998, it clarified the scope of the RMP regulations.
R&guhition of LNG Facilities
On-shore LNG facilities are subject to Department of Transportation (DOT) safety
standards. See 49 C.F.R. part 193 (Liquefied Natural Gas Facilities: Federal Safety Standards);
33 C.F.R. part 127 (Waterfront Facilities Flandling Liquefied Natural Gas and Liquefied
Hazardous Gas). DOT’s regulations compreliensively prescribe safety, design, siting,
construction, equipment, operations, maintenance, training, fire protection, and security
requirements for all on-shore LNG facilities. LNG facilities must be designed and located to
minimize the hazards to persons and offsite property resulting from leaks and spills of natural
gas. In particular, on-shore LNG facilities must have a “thermal exclusion zone” around the
facility, which is determined by conducting modeling using parameters specified by DOT
(analogous to EPA’s off-site consequence analyses)
Off-shore LNG facilities are regulated by DOT’s Maritime Administration (MARAD)
and the Coast Guard under the Deepwater Port Act and the Maritime Transportation Security Act
of 2002 (MTSA). See 33 U.S.C. § 1503; 46 U.S.C. § 210; 33 C.F.R. parts 148, 149, and 150.
Off-shore facilities currently are subject to “interim” regulations. These regulations contain
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standards for facility licensing, siting, construction, design, operations, inspection, personnel
training and qualifications, vessel navigation and safety zones, fire protection, emergency plans
and operations, and workplace safety and health. The MTSA mandates that permanent standards
be adopted “as soon as practicable.” The Coast Guard expects to finalize permanent standards in
2006.
Analysis
A. Clean Air Act Section 112(r)(7) RMP Regulations Do Not Apply to On- or Off-shore
LNG Facilities
EPA has expressly provided that the RMP regulations do not apply to on-shore LNG
facilities to the extent they transport or store incident to such transport regulated substances. In
1996, EPA defined “stationary source,” the legal prerequisite for being subject to the RMP
regulations, as “excluding transportation, including storage incident to transportation, provided
such transportation is regulated under 49 CFR part 192, 193, or 195... . as well as transportation
subject to natural gas or hazardous liquid programs for which a state has in effect a certification
under 49 U.S.C. section 60105.” 61 Fed. Reg. at 16,601. In 1998. EPA clarified that the
“transportation exemption” was not limited to just sources regulated by DOT, but included
transportation and storage incident to transportation generally. 63 Fed. Reg. at 642. It also
reiterated that the exemption “applies to liquefied natural gas (LNG) facilities subject to [ DOT]
oversight or regulation.. . or a state natural gas or hazardous liquid program.” Jd EPA made
clear that it promulgated such a definition of “stationary source,” i e., one that excludes
transportation and storage incident to transportation, including LNG facilities, to be “consistent
with Congressional intent.” See RTC at 21. As discussed in greater detail below, EPA did not
suggest that it was narrowly interpreting the statutory definition of “stationary source” for RMIP
regulatory purposes.
The above-cited preamble discussions addressed on-shore LNG facilities only; at the time
there were no existing or proposed off-shore LNG facilities. The revised definition of “stationary
source” and the accompanying preamble discussions, however, make clear that off-shore LNG
facilities also qualify for the transportation exemption and thus are not subject to the RMP
regulations. Consistent with Congress’s express intent to exempt all transportation facilities
from 112(r), EPA broadened the transportation exemption to all transportation, including storage
incident to transportation. There is no doubt that off-shore LNG facilities are transportation
facilities, since they are fi.rnctionally equivalent to on-shore LNG facilities. Although off-shore
facilities are not subject to 49 C.F.R. parts 192, 193, or 195, as discussed above, they are subject
to comprehensive regulation by MARAD and the Coast Guard. Sec 33 C.F.R. parts 148, 149,
and 150. Thus, there is no legal or policy reason to subject off-shore LNG facilities to the RMP
5

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PRIVILEGED AND CONFIDENTIAL
DELII3ERAT1VE DOCUMENT
ATTORNEY-CLiENT COMMUNICATION
regulations.
B. Clean Air Act 112(r)(1) General Duty Clause Does Not Apply to On- or Off-shore
LNG Facilities
1. Congress unambiguously exempted transportation facilities from the
definition of “stationary source”
As discussed above, Congress expressed its intent that “stationary source’ not apply to
transportation, including the storage incident to transportation. of any regulated substance or
other extremely hazardous substance under the provisions” of section 112(r) (emphasis added).
The conference ‘s use of the phrase “provisions of section 112(r)” indicates that it intended to
exempt transportation facilities from all of section 112(r), not just 11 2(r)(7). Had Congress
intended to exempt transportation facilities only from certain subsections or subparagraphs,
presumably it would have said so. Elsewhere in the CAA and its legislative history, Congress
made such distinctions.
The Committee’s reference to “any regulated substance or other extremely hazardous
substance ‘ (emphasis added) further evidences that it was addressing section 1 12(r) generally,
not Just the section 1 12(r)(7)(B) RMP program. Section 1 12(r)(7)(B) applies only to the more
limited universe of “regulated substances,” whereas other section 112(r) provisions, including
section 11 2(r)( 1), apply to both “regulated substances” and “other extremely hazardous
substances.” Had Congress not intended to exempt transportation facilities from the entirety of
section 112(r), or, stated differently, had it intended to exempt such facilities only from the RIvIP
regulations, it would not have referenced “other extremely hazardous substances,” since
I l2(r)(7)(B) regulates only “regulated substances.”
Taken together, the Conference Committee’s references to “provisions of section 112(r)”
and “extremely hazardous substances,” demonstrate unequivocally that Congress intended to
exempt transportation facilities from 112(r) generally, including the ii 2(r)( 1) general duty
clause.
2. Because LNG facilities are not “stationary sources,” they cannot be subject
to either the “general duty” clause or the RMP regulations
Section 1 12(r)(7)(B) and section II 2(r)(l) both apply to “stationary sources,” and section
I 12(r)(2)(C) defines “stationary source” for purposes of section 112(r) generally. Neither section
1 12(r)(7)(B) nor section 1 12(r)(1) authorizes EPA to narrow the meaning of “stationary source”
as it is used in that provision. Section 1 12(r)(7)(B) requires EPA to regulate only those
“stationary sources” having more than a threshold quantity of a regulated substance, but the
6

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PRiVILEGED AND CONFIDENTIAL
DELIBERATIVE DOCUMENT
ATTORNEY-CL LENT COMMUNICATION
statutory definition of “stationary source” otherwise governs the applicability of the regulations.
Section l12(r)(l) directly imposes a general duty of care on “stationary sources” with no
narrowing of the universe of covered facilities, in implementing both section 1 l2(r (7)(B) arid
section 112(r)(l), EPA is thus applying the statutory definition of “stationary source.”
Under standard rules of statutory construction, the Agency’s ability to interpret the
statutory definition of “stationary source” one way for section 1 12(r)(7)(B) and another way for
section 1 12(r)(1) is limited. For EPA to adopt different interpretations of “stationary source” for
different provisions of section 112(r). there must be statutory support for different interpretations
and a reasonable explanation for the difference. No such support or explanation exists here.
Nothing in the statute or its legislative history suggests that Congress intended “stationary
source” as defined by section 1 12(r)(2)(C) to be interpreted differently for different provisions of
section 112(r). In fact, as discussed above, the legislative history indicates just the opposite.
Moreover, in promulgating, and later revising, the regulatory definition of “stationary
source,” EPA did not suggest that it was narrowly interpreting the statutory definition of that
term for purposes of the RMP regulations. The Agency explained that excluding transportation
and storage incident to transportation would make CAA section 112(r) consistent with EPCRA,
its legislative antecedent. In response to a commeuter, EPA expressly acknowledged that the
regulatory definition of “stationary source” was consistent with congressional intent. EPA
provided no explanation of why, as a policy matter, transportation and storage incident to
transportation should be excluded from the RMP regulations arid not from the other provisions of
section 112(r), including the general duty clause.
Presumably, such an explanation would have been critical in light of the section
I 12(r)(7)(B) requirements that the RIvIP regulations cover “storage” and “provide, to the greatest
extent practicable” for the prevention and mitigation of accidental releases from “stationary
sources” A regulatory definition of “stationary source” that excluded transportation and storage
incident to transportation arguably would have been inconsistent with those statutory directives,
and thus would have required a reasoned explanation to provide an adequate basis for the
regulatory exemption. The only explanation EPA gave of the legal basis for the regulatory
definition of “stationary source” was that it is consistent with congressional intent as revealed in
legislative history. Thus, there is no basis in the rulemaking record of the RMP regulations to
suggest now that EPA intended to narrowly interpret the statutory definition of “stationary
source” only for regulatory purposes. 3 As such, the Agency cannot now advance such an
Thus, this situation is distinguishable from the Resource Conservation and Recovery
Act (RCRA) context in which EPA defined the term “solid waste” for regulatory purposes more
7

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PRiVILEGED AND CONFIDENTIAL
DELIBERATIVE DOCUMENT
ATTORNEY-CLIENT COMMUNICATION
argument simply to support an effort to justify subjecting LNG facilities to the 112(r) general
duty clause. Even assuming that the CAA afforded EPA the discretion to define “stationary
source” differently for purposes of sections 1 l2(r)(1) and I 12(r)(7), the Agency would have to
undertake rulemaking to accomplish what effectively would be a reversal of its initial
interpretation of section 1 12(r)(C)(2).
Conclusion
To the extent LNG facilities transport, or store incident to transport, regulated substances
or extremely hazardous substances, they are exempt from CAA section 112(r), including the
section 1 12(r)(1) general duty clause and the Section 1 12(r)(7) RMP regulations. The legislative
history of section 112(r) is clear that Congress intended to exclude from the statutory definition
of “stationary source,” and thus from regulation under 112(r) generally, facilities, like LNG
facilities, that transport, or store incident to such transport, extremely hazardous substances. If
you have any questions, please call me, Chet Thompson, or Nancy Ketcham-Colwi!l of my staff
narrowly than the statutory definition. See RCRA § 1004(27) and 40 C.F.R. pt 261.2. In that
situation, EPA was exercising its regulatory discretion to more narrowly define a statutory term
for regulatory purposes. Here, by contrast, EPA adopted for regulatory purposes the statutory
definition of stationary source. Had EPA adopted a regulatory definition of stationary source that
includcd transportation facilities, it would have effectively expanded the statutory definition, not
narrowed it.
8

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3
5 -

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Printe from Enforceability Requirements for Limiting PTE (29-May-96)
= == = = == = = == = = = = = = = == = = = = = = = == = = = = = = = = = = = = = = = == = = == = = == = = = = = == == = = == = = = = = = =
<> Enforceability Requirements for Limiting PTE
hrough SIP and 112 Rules
!IRES REF#: P6175
DOCUMENT: CAAA
DATE ISSUED: 01/25/95; 950125
LAW AND SECTION:
REGULATION:
U S CODE:
DATE EXPIRED:
REPLACED BY:
TEXT:
‘Mfl J 4
SUBJECT: Guidance on Enforceability Requirements for Limiting Potential
to Emit through SIP and 112 Rules and General Permits
FROM: Kathie A. Stein, Director
Air Enforcement Division
TO: Director, Air, Pesticides and Toxics
Management Division, Regions I and IV
Director, Air and Waste Management Division,
Region II
Director, Air, Radiation and Toxics Division,
Region III
Director, Air and Radiation Division,
Region V
Director, Air, Pesticides and Toxics Division,
Region VI
Director, Air and Toxics Division,
Regions VII, VIII, IX, and X
Attached is a guidance document developed over the past year by the
former Stationary Source Compliance Division in coordination with the
Air Enforcement Division, Office of Air Quality Planning and Standards,
OAR’s Office of Policy Analysis and Review, and the Office of General
unsel, as well as with significant input from several Regions.
A number of permitting authorities have begun discussions with or
have submitted programs for review by EPA that would provide alternative
mechanisms for limiting potential to emit. Several authorities have
submitted SIP rules and at least one State has been developing a State
general permit approach. We believe that this guidance is important to

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assi t th EPA Regions as well as States in approving and developing
such approaches.
For additional information regarding this guidance, please contact
me or Clara Poffenberger of my staff at (202) 564-8709.
; John Rasnic, Director
Manufacturing, Energy, and Transportation Division
Office of Compliance
Air Branch Chiefs, Regions I - X
-1-
Enforceability Requirements for Limiting Potential to Emit Through IP
and 112 Rules and General Permits
Introduction
As several EPA guidances describe, there are several mechanisms
available for sources to limit potential to emit. EPA guidances have
also described the importance of practical enforceability of the means
ed to limit potential to emit. This guidance is intended to provide
itional guidance on practical enforceability for such limits. We
jvide references for guidances on practical enforceability for permits
and rules in general and provide guidance in this document for
application of the same principles to “limitations established by rule
or general permit,” as described in the guidance document issued January
25, 1995, entitled “Options for Limiting Potential to Emit (PTE) of a
Stationary Source under section 112 and Title V of the Clean Air Act
(Act).” The description is as follows:
Limitations established by rules. For less complex plant
sites, and for source categories involving relatively few
operations that are similar in nature, case-by-case permitting
may not be the most administratively efficient approach to
establishing federally enforceable restrictions. One approach
that has been used is to establish a general rule which
creates federally enforceable restrictions at one time for
many sources (these rules have been referred to as
“prohibitory” or ‘exclusionary” rules /5/ ) . The concept of
exclusionary rules is described in detail in the November 3,
1993 memorandum (“Approaches to Creating Federally Enforceable
Emissions Limits,” from John S. Seitz]. A specific suggested
approach for VOC limits by rule was described in EPA’s
memorandum dated October 15, 1993 entitled “Guidance for State
Rules for Optional Federally-Enforceable Emissions Limits
Based Upon Volatile Organic Compound (VOC) Use.” An example
of such an exclusionary rule is a model rule developed for use
in California. (The California model rule is attached, along
with a discussion of its applicability to other situations- -
see Attachment 2) . Exclusionary rules are included in a
State’s SIP or 112 program and generally become effective upon
approval by the EPA.
/5/ The EPA prefers the term “exclusionary rule” in that
this phrase is a less ambiguous description of the overall

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•purpQse of these rules.
General permits. A concept similar to the exclusionary rule
is the establishment of a general permit for a given source
type. A general permit is a single permit that establishes
terms and conditions that must be
-2-
complied with by all sources subject to that permit. The
establishment of a general permit could provide for emission
limitations in a one-time permitting process, and thus avoid
the need to issue separate permits for each source. Although
this concept is generally thought of as an element of Title V
permit programs, there is no reason that a State or local
agency could not submit a general permit program as a SIP
submittal aimed at creating synthetic minor sources.
Additionally, FESOP [ Federally Enforceable State Operating
Permit, usually referring to Title I State Operating Permit
Programs approved under the criteria established by EPA in the
June 28, 1989 Federal Register notice, 54 FR 27274] programs
can include general permits as an element of the FESOP program
being approved into the SIP. The advantage of a SIP general
permit, when compared to an exclusionary rule, is that upon
approval by the EPA of the State’s general permit program, a
general permit could be written for an additional source type
without triggering the need for the formal SIP revision
process. (January 25, 1995, Seitz and Van Heuvelen memorandum,
page 4.)
SIP or 112 Rules
Source-category standards approved in the SIP or under 112, if
enforceable as a practical matter, can be used as federally enforceable
limits on potential to emit. Such provisions require public
participation and EPA review. Once a specific source qualifies undet
the applicability requirements of the source- category rule, additional
public participation is not required to make the limits federally
enforceable as a matter of legal sufficiency since the rule itself
underwent public participation and EPA review. The rule must still be
enforceable as a practical matter in order to be considered federally
enforceable. A source that violates this type of rule limiting potential
to emit below major source thresholds or is later determined not to
qualify for coverage under the rule, could be subject to enforcement
action for violation of the rule and for constructing or operating
without a proper permit (a part 70 permit, a New Source Review permit,
or operating without meeting 112 requirements, or any combination
thereof).
General Permits
The Title V regulations set Out provisions for general permits
ering numerous similar sources. The primary purpose of general
mits is to provide a permitting alternative where the normal
permitting process would be overly burdensome, such as f or area sources
under section 112. General permits may be issued to cover any category
of numerous similar sources, including major sources, provided that such
sources meet certain criteria laid out in 40 CFR part 70. Sources may
be issued general permits strictly for the purpose of avoiding

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-3-
classification as a major source. In other words, general permits may
be used to limit the potential to emit for numerous similar sources.
However, general permits must also meet both legal and practical federal
enforceability requirements.
With respect to legal sufficiency, the operating permit regulations
provide that once the general permit has been issued after opportunity
for public participation and EPA and affected State review, the
permitting authority nay grant or deny a source s request to be covered
by a general permit without further public participation or EPA or
affected State review. The action of granting or denying the source s
request is not subject to judicial review. A general permit does not
carry a permit shield. A source may be subject to enforcement action for
operating without a part 70 permit if the source is later determined not
to qualify for coverage under the general permit. Sources covered by
general permits must comply with all part 70 requirements.
State SIP or 112(1) General Permits
Another mechanism available to limit potential to emit is a gen ral
permit program approved into the SIP or under section 112 (1), the
hazardous air pollutant program authority. This mechanism allows
mitting authorities to issue and revise general permits consisten
h SIP or 112(1) program requirements without going through the SI or
(1) approval process for each general permit or revision of a general
ermit. The program is also separate from title V, like title I state
operating permits, and issuance and revisions of the permits are not
required to Comply with title V procedures.
Once a program is approved, issuing and revising general permits
should be significantly less burdensome and time-consuming for State
legislative and rulemaking authorities. The EPA review should also be
less burdensome and time-consuming. After a program is approved,
permitting authorities have the flexibility to submit and issue general
permits as needed rather than submitting them all at once as part of a
SIP submittal. Given the reduced procedural burden, permitting
authorities should be able to issue general permits to small groups or
categories or sources rather than attempt to cover broad categories with
a generic rule, We anticipate that specific permit requirements for
general permits may be readily developed with the assistance of
interested industry groups.
The State general permit approach may allow sources to meet the
federal enforceability requirements more easily than other approaches.
However, to use this approach, States must have a federally enforceable
program that provides the State the authority to issue such permits; to
accomplish this, EPA must approve the program into the SIP or pursuant
to section 112(1) of the Clean Air Act.
4

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Enforceabi lity Principles
In 1989, in response to challenges from the Chemical Manufacturers
Association and other industry groups, EPA reiterated its position that
controls and limitations used to limit a source’s potential to emit must
federally enforceable. See 54 FR 27274 (June 28, 1989) . Federally
orceable limits can be established by Clean Air Act programs such as
- t S, NESHAPs, MACTs, and SIP requirements. However, source-specific
limits are generally set forth in permits. Generally, to be considered
federally enforceable, the permitting program must be approved by EPA
into the SIP and include provisions for public participation. In
addition, permit terms and conditions must be practicably enforceable to
be considered federally enforceable. EPA provided specific guidance n
federally enforceable permit conditions in a June 13, 1989 policy merdo
Limiting Potential to Emit in New Source Permitting from John Seitz and
in the June 28, 1989 Federal Register notice (54 FR 27274) . Additional
guidance can also be found in United States v. Louisiana Pacific, 682 F.
Supp. 1122 (D. Cob. 1987), 682 F. Supp 1141 (D. Cob. 1988) , which l ed
to these guidance statements and a number of other memoranda covering
practicable enforceability as it relates to rolling averages, short- erm
averages, and emission caps. See Use of Long Term Rolling Averages ‘to
Limit Potential to Emit, from John B. Rasnic to David Kee, February 24,
1992; Limiting Potential to Emit from Mamie Miller to George Czerniak,
August 5, 1992; Policy Determination on Limiting Potential to Emit for
Koch Refining Company’s Clean Fuels Project , from John B. Rasnic to
David Kee, March 13, 1992; and 3M Tape Manufacturing Division Plant,
St. Paul, Minnesota from John B. Rasnic to David Kee, July 14, 1992.
In 1997, EPA laid out enforceability criteria that SIP rules must
meet. See Review of State Implementation Plans and Revisions for
Enforceability and Legal Sufficiency from Michael Alushin, Alan Eckert,
and John Seitz, September 3, 1987 (1987 SIP memo) . The criteria include
- ar statements as to applicability, specificity as to the standard
,t must be met, explicit statements of the compliance time frames
g. hourly, daily, monthly, or 12-month averages, etc.), that the time
trame and method of compliance employed must be sufficient to protect
the standard involved, recordkeeping requirements must be specified, and
equivalency provisions must meet certain requirements.
Based on these precedents, this guidance describes six
enforceability criteria which a rule or a general permit must meet td
make limits enforceable as a practical matter. In general, practical’
enforceability for a source-specific permit term means that the
provision must specify (1) a technically accurate limitation and the
portions of the source subject to the limitation; (2) the time period
for the limitation (hourly, daily, monthly, annually); and (3) the
method to determine compliance including appropriate monitoring,
recordkeeping and
-5-
reporting. For rules and general permits that apply to categories of
sources, practical enforceability additionally requires that the
provision (4) identify the categories of sources that are covered by the
a. le; (5) where coverage is optional, provide for notice to the
mitting authority of the source’s election to be covered by the rule;
• (6) recognize the enforcement consequences relevant to the rule.
This guidance will address requirements (4) and (5) first as they
are concepts that are unique to rules and general permits.

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A. Speci 1 fic Applicability
Rules and general permits designed to limit potential to emit must
be specific as to the emission units or sources covered by the rule or
ermit. In other words, the rule or permit must clearly identify th
egory(ies) of sources that qualify for the rule s coverage. The rule
t apply to categories of sources that are defined specifically or
ri rrowly enough so that specific limits and compliance monitoring
techniques can be identified and achieved by all sources in the
categories defined.
A rule or general permit that covers a homogeneous group of sources
should allow standards to be set that limit potential to emit and
provide the specific monitoring requirements. (Monitoring is more fully
addressed in section D.) The State can allow for generic control
efficiencies where technically sound and appropriate, depending on the
extent of the application and ability to monitor compliance with
resultant emission limits. Similarly, specific and narrow applicability
may allow generic limits on material usage or limits on hours of
operation to be sufficient. For example, a rule or general permit that
applies to fossil-fuel fired boilers of a certain size may allow for
limits on material usage, such as fuel-type and quantity. A rule or
general permit that applies only to standby diesel generators or
emergency generators may allow restrictions on hours of operation to
limit potential to emit. The necessary compliance terms (i.e.,
monitoring or recordkeeping) associated with any of these limits, such
as with hours of operation, can readily be specified in the rule or the
general permit itself.
General permits under Title V are assumed to include this
enforceability principle because the Part 70 regulations set out
cific criteria that States should consider in developing their
eral permit provisions (See 57 FR 32278). These factors include
uirements that
categories of sources covered by general permits should be
generally homogenous in terms of operations, processes, and
emissions. All sources in the category should have
essentially similar operations or processes and emit
pollutants with similar characteristics.
-6-
Another factor stated is sources should be subject to the same or
substantially similar requirements governing operation, emissions,
monitoring, reporting, or recordkeeping. Examples of source categories
appropriate for general permits include: degreasers, dry cleaners, small
heating systems, sheet fed printers, and VOC storage tanks (see 57 FR
32278)
B. Reporting or Notice to Permitting Authority
The rule or general permit should provide specific reporting
uirements as part of the compliance method. Although the compliance
method for all sources must include recordkeeping requirements, the
permitting authority may make a determination that reporting
requirements for small sources would provide minimal additional
compliance assurance. Where ongoing reporting requirements are
determined not to be reasonable for a category of sources, the rule Or

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general permit should still provide that the source notify the
permitting authority of its coverage by the rule or the permit. In the
limited situation where all the sources described in a source category
are required to comply with the all of the provisions of a rule or
general permit, notice is not needed. However, where there are no
reporting requirements and no opt-in provisions, the permitting
hority must provide the public with the names and locations of
irces subject to the rule or permit.
For Title V general permits, Part 70 requires sources to submit an
application for a general permit which must be approved or disapproved
by the permitting authority. For SIP or 112 rules and SIP or 112
general permits, in response to receiving the notice or application, the
permitting authority may issue an individual permit, or alternativelZ, a
letter or certification. The permitting authority may also determine
initially whether it will issue a response for each individual
application or notice, and may initially specify a reasonable time
period after which a source that has submitted an application or noti’ce
will be deemed to be authorized to operate under the general permit r
SIP or 112 rule.
-7-
C. Specific Technically Accurate Limits
The rule or general permit issued pursuant to the SIP or 112 must
cify technically accurate limits on the potential to emit. The rule
general permit must clearly specify the limits that apply, and
;lude the specific associated compliance monitoring. (The compliance
monitoring requirements are discussed further in the next section.) The
standards or limits must be technically specific and accurate to limit
potential to emit, identifying any allowed deviations.
The 1987 policy on SIP enforceability states that limitations must
be sufficiently specific so that a source is fairly on notice as to the
standard it must meet. For example, alternative equivalent technique
provisions should not be approved without clarification concerning the
time period over which equivalency is measured as well as whether the
equivalency applies on a per source or per line basis or is facility-
wide.
Further, for potential to emit limitations, the standards set must
be technically sufficient to provide assurance to EPA and the public
that they actually represent a limitation on the potential to emit fdr
the category of sources identified. Any presumption for control
efficiency must be technically accurate and the rule must provide th
specific parameters as enforceable limits to assure that the control
efficiency will be met. For example, rules setting presumptive
efficiencies for incineration controls applied to a specific or broad
category must state the operating temperature limits or range, the ai 1 r
flow, or any other parameters that may affect the efficiency on which
the presumptive efficiency is based. Similarly, material usage limits
such as fuel limits, as stated above, require specifying the type of
el and may require specifying other operating parameters.
A rule that allows sources to submit the specific parameters and
associated limits to be monitored may not be enforceable because the
rule itself does not set specific technical limits. The submission of
these voluntarily accepted limits on parameters or monitoring
requirements would need to be federally enforceable. Absent a source-

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specific permit and appropriate review and public participation of tl e
limits, such a rule is not consistent with the EPA s enforceability
principles.
D. Specific Compliance Monitoring
The rule must specify the methods to determine compliance.
Specifically, the rule must state the monitoring requirements,
recordkeeping requirements, reporting requirements, and test methods as
appropriate for each potential to emit limitation; and clarify which
methods are used for making a direct determination of compliance with
the potential to emit limitations. Monitoring refers to many different
types of data collection, including continuous emission or opacity
monitoring, and
-8-
measurements of various parameters of process or control devices (e.g.
temperature, pressure drop, fuel usage) and recordkeeping of parameters
that have been limited, such as hours of operation, production levels,
or raw material usage. Without a verifiable plantwide emission limit,
verifiable emission limits must be assigned to each unit or group of
units subject to the rule or general permit. Where monitoring cannot be
used to determine emissions directly, limits on appropriate operatin
parameters must be established for the units or source, and monitoriI g
must verify compliance with those limits. The monitoring must be
ficient. to yield data from the relevant time period that is
cesentative of the source s compliance with the standard or limit.
binuous emissions monitoring, especially in the case of smaller
sources, is not required.
E. Practicably Enforceable Averaging Times
The averaging time for all limits must be practicably enforceabl e.
In other words, the averaging time period must readily allow for
determination of compliance. EPA policy expresses a preference toward
short term limits, generally daily but not to exceed one month.
However, EPA policy allows for rolling limits not to exceed 12 months or
365 days where the permitting authority finds that the limit provides an
assurance that compliance can be readily determined and verified. See
June 13, 1989 Guidance on Limiting Potential to Emit, February 24,
1992 Memorandum Use of Long Term Rolling Averages to Limit Potential to
Emit from John Rasnic to David Kee, and March 13, 1992 Policy
Determination on Limiting Potential to Emit for Koch Refining Company s
Clean Fuels Project from John B. Rasnic to David Kee, stating that
determinations to allow an annual rolling average versus a shorter term
limit must be made on a case by case basis. Various factors weigh in
favor of allowing a long term rolling average, such as historically
unpredictable variations in emissions. Other factors may weigh in favor
of a shorter term limit, such as the inability to set interim limits
during the first year. The permitting agency must make a determination
as to what monitoring and averaging period is warranted for the
particular source-category in light of how close the allowable emissions
uld be to the applicability threshold.
Clearly Recognized Enforcement
Violations of limits imposed by the rule or general permit that
limit potential to emit constitute violations of major source

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requirements. In other words, the source would be violating a synthetic
minor requirement which may result in the source being treated as a
major source under Titles I and V. The 1989 Federal Register Notice
provides for separate enforcement and permitting treatment depending on
whether the source subsequently chooses to become major or remain minor.
Tjius, violations of the rule or general permit or violation of the
cific conditions of the rule or general permit subjects the
9.
source to potential enforcement under the Clean Air Act and state law.
The operating permit rule states that notwithstanding the shield
provisions of part 70, the source subject to a general permit may be
subject to enforcement action for operating without a part 70 permit if
the source is later determined not to qualify for the conditions and
terms of the general permit. Moreover, violation of any of the
conditions of the rule or general permit may result in a different
determination of the source s potential to emit and thus may subject the
source to major source requirements and to enforcement action for
failure to comply with major source requirements from the initial
determination.
Rule Requirements for State General Permit Programs
As discussed above, general permit programs must be submitted to
EPA for approval under SIP authority or under section 112(1), or both,
ending on its particular pollutant application. SIP and 112(1)
royal and rulemaking procedures must be met, including public notice
comment. The specific application of the enforceability principles
or establishing State SIP or 112(1) general permit programs require
that the rule establishing the program set out these principles as rule
requirements. In other words, these principles must be specific rule
requirements to be met by each general permit.
The rule establishing the program must require that (1) general
permits apply to a specific and narrow category of sources; (2) sources
electing coverage under general permits, where coverage is not
mandatory, provide notice or reporting to the permitting authority; (3)
general permits provide specific and technically accurate (verifiable)
limits that restrict the potential to emit; (4) general permits contain
specific compliance monitoring requirements; (5) limits in general
permits are established based on practicably enforceable averaging
times; and (6) violations of the permit are considered violations of the
State and federal requirements and may result in the source being
subject to major source requirements.
In addition, since the rule establishing the program does not
provide the specific standards to be met by the source, each general
permit, but not each application under each general permit, must be
issued pursuant to public and EPA notice and comment. The 1989 Federal
Register notice covering enforceability of operating permits requires 1
that SIP operating permit programs issue permits pursuant to public and
EPA notice and comment. Title V requires that permits, including
eral permits, be issued subject to EPA objection.
Finally, sources remain liable for compliance with major source
requirements if the specific application of a general permit to the
source does not limit the source s potential to emit below major source
or major modification thresholds. (The limits provided in these
mechanisms may actually limit the potential to emit of sources but may

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not limit the potential to
- 10 -
emit for some sources to below the threshold necessary to avoid majo
source requirements. For example, a general permit for industrial I
boilers may in fact provide limits that are sufficient to bring a source
with only two or three boilers to below the subject thresholds, but
source with more than three boilers may have a limited PTE but not
limited below the major source threshold.) Also, where the source is
required to use another mechanism to limit potential to emit, i.e., a
construction permit, the general permit may not be relied upon by the
source or the State to limit potential to emit.
Permits issued pursuant to the approved program, meeting the above
requirements, are adequate to provide federally enforceable limits on
potential to emit for New Source Review, title V, and section 112
programs as long as they are approved pursuant to SIP (section 110) and
section 112(1) authorities.
* End of Document *

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
MEMORANDUM
WASHINGTON, D.C. 20460
SEP 12 1984
SUBJECT:
FROM:
TO:
Clean Air Act Stationary
Penalty Policy
Source Civil
Courtney M. Price
Assistant Administrator f r Enforcement
nd Comp)4ane-e’ Monitorir )
I-, _—e’_ C . - --- /
- Riseph A. Cannon, Assistant Administrator
for Air and Radiation
Address e e s
Attached is a copy of the new Clean Air Act Stationary Source
Civil Penalty Policy. Thank you for the thoughtful comments sub-
mitted on our June 5, 1984 draft. The final policy was greatly
improved by your comments. The policy is effective thirty days
from the date of this memorandum and will apply to all enforcement
actions referred to the Department of Justice after that date.
The Air Enforcement Division will soon start to address the
related issue of State penalties, as required by the June 26,
1984 policy on State/Federal Enforcement agreements. We look
forward to working with State and Regional representatives on that
sensitive issue.
Attachment
Addressees:
Regional Administrators, Regions I - X
Regional Counsels, Regions I - X
Directors, Air Management Divisions
Regions I, III, V, IX
Directors, Air & Waste Management Divisions
Regions II, IV, VI, VII, VIII, X
Richard Mays
Rich Robinson, OLEP
Thomas Gallagher, NEIC
Gerald Emison, OAQPS
Steve Ramsey, DOJ
Bill Becker, STAPPA-ALAPCO

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CLEAN AIR ACT
STAT I ONARY SOURCE
CIVIL PENALTY POLICY
SEPTEMBER 12, 19814

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Table of Contents
I. Introduction ..... .... ......... . ...... ....... . . •... 1
II. PreliminaryDeterrenceAmount.....................2
A. Benefit Component . . . . . 3
1.Beriefittromdelayedcosts..................3
2.Benefitfromavoidedcosts . .4
3. Settling cases for an amount less than the
economic benefit ............................ 5
a. Benefit component involves insignificant
amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
b.Compellingpublicconcerns ...............6
c.Litigationpracticalities ..........6
d.Concurrent l20action 7
B. Gravity Component ...................••.•••••••. 7
l.Actualorpossibleharin..’...................9
a. Amount of pollutant
b. Toxicity of the pollutant
b. Sensitivity of environment
c. Length of time of violation
2. Importance to regulatory scheme ............. 10
3. Size of violator ... •..... ... .. . ... ... . 10
III. AdjustingtheGravityComporient......
A. Degree of willfulness or negligence 12
B. Degree of cooperation/noncooperation .... . 14
1. Prompt reporting of noncompliance
2. Prompt correction of environmental problems
C.Historyofnoncompliance.......................l5
D . Ability to pay ............. . 17
E.OtheruniquefactorS 18
I V. Credit Projects . •.. . 18
V. Examples • . •.... . . . . . . . . . . . . • •...•••I• ........ . . . . . 21
VI. Conclusion . . .. 29

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—2—
VII. Appendices
I. Permit Penalty Policy
II. Vinyl Chloride Penalty Policy
III. Asbestos Penalty Policy
IV. VOC Penalty Policy
V. Air Civil Penalty Worksheet

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Clean Air Act Stationary Source Penalty Policy
I. INTRODUCTION
Section 113(b) of the Clean Air Act, 42 U.S.C. §7413(b),
provides the Administrator of EPA with the authority to
commence a civil action against certain violators of the
Clean Air Act to recover a civil penalty of up to $25,000 per
day of violation. Since July 8, 1980, EPA has been assessing
civil penalties for Clean Air Act violations under Section
113(b) based on the considerations enumerated in the statute
and the guidance provided in the Civil Penalty Policy issued
on that date.
On February 16, 1984, EPA issued a new set of civil
penalty policy documents: a Policy on Civil Penalties arid a
Framework for Statute—Specific Approaches to Penalty
Assessments . The Policy focuses on the general philosophy
behind the penalty program. The Framework provides guidance
to each program on how to develop medium—specific penalty
policies. The Air Enforcement program has followed the
Policy and the Framework in drafting the Clean Air Act
Stationary Source Penalty Policy. The Air Policy will be
supplemented as necessary.
This document provides guidance to be used in calculating
the civil penalty EPA will require in settlement of enforce-
ment actions taken pursuant to Title I of the Clean Air Act.
It reflects the considerations enumerated in §113(b) of the
Clean Air Act. It applies only to initial enforcement actions
in district court and is not meant to control the penalty
amount requested in actions to enforce existing consent
ciecrees.’! The required use of this guidance is also limited
to pre—trial settlement of enforcement actions. Once a
case proceeds to trial, EPA attorneys are not bound by this
document, except the policy on credit projects in Section IV.
The guidance applies to most Clean Air Act violations.
There are some kinds of violations, however, that have
characteristics which make the use of the general policy
inappropriate. These are treated in separate guidance,
included as appendices. Separate guidance is provided for
violations of permit requirements (Appendix I). This policy
applies to NESUAPs violations except where separate guidance
is developed. To date, separate guidance has been developed
l/In these actions, EPA will normally seek the penalty
amount dictated by the stipulated penalty provisions of the
consent decree. If a consent decree contains no stipulated
penalty provisions, the case development team should propose
penalties suitable to vindicate the authority of the court.

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—2—
for the gravity component for vinyl chloride violations
(Appendix II) and for the benefit and gravity components for
asbestos demolition and renovation violations (Appendix III).
This policy applies to violations of volatile organic compound
regulations where the compliance plan involves installation
of control equipment. Separate guidance is provided for VOC
violators which comply through reformulation (Appendix IV).
This penalty policy contains two sections. The first
section describes how to achieve the goal of deterrence
through penalty components that 1) remove the economic benefit
of noncompliance and 2) reflect the gravity of the violation.
The second section provides adjustment factors so that both
a fair and equitable penalty will result and there will be a
swift resolution to the environmental problem. Only in
extraordinary conditions, however, will the adjustment factors
apply to the economic benefit component of the penalty calcu-
lations. In most instances, they will apply only to the
gravity component. Except in extraordinary circumstances,
as described below, the lowest possible settlement penalty
will be the calculated economic benefIt of noncompliance.
This guidance tells how to calculate minimum settlement
figures for the internal use of Agency negotiators. Conse-
quently, the penalty figures in negotiations should not neces-
sarily be as low as the minimum figure. The final settlement
amount should go no lower than the calculated minimum unless
the reasons for the deviation are proper and documented.
The procedures set out in this document are intended
solely for the guidance of government personnel. They are
not intended and cannot be relied upon to create rights,
substantive or procedural, enforceable by any party in
litigation with the United States. The Agency reserves the
right to act at variance with this policy and to change it at
any time without public notice.
This penalty policy is effective thirty days from the
date of signature. All enforcement actions referred to the
Department of Justice after that date will be covered by this
policy. For all enforcement actions already referred to DOJ
by EPA, the Agency will continue to use the July 1980 Civil
Penalty Policy.
II. THE PRELIMINARY DETERRENCE AMOUNT
The February 16, 1984 Policy on Civil Penalties
establishes deterrence as an important goal of penalty assess-
ment. More specifically, it says that any penalty should, at
a minimum , remove any significant benefits resulting from
noncompliance. In adaition, it shoulu include an amount
beyond removal of economic benefit to reflect the seriousness
of the violation. That portion of the penalty which removes
the economic benefit of noncompliance is referred to as the

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—3—
“berietit component;” that part ot the penalty which retlects
the seriousness ot the violation is referred to as the “gravity
component.” When combined, these two components yield the
“preliminary deterrence amount.”
This section ot the document provides guidelines for
calculating the benefit component and the gravity component.
It will also discuss the limited circumstances which Justity
settling for less than the benefit component. The uses ot
the preliminary deterrence amount will be explained in subse-
quent portions of this document.
A. THE BENEFIT COMPONENT
In order to ensure that penalties remove any signiticant
economic benetit ot noncompliance, it is necessary to have
reliable methods to calculate that benefit. The existence ot
reliable methods also strengthens the Agency’s position in
both litigation and negotiation. This section sets out
guidelines for computing the benetit component. It tirst
addresses costs which are delayed by noncompliance. Then it
addresses costs which are avoided completely by noncompliance.
It also identities issues to be considered when computing the
benefit component tor those violations where the benetit ot
noncompliance results tram factors other than cost savings.
This section concluaes with a discussion or the proper use ot
the benetit component in developing penalty figures and in
settlement negotiations.
In enforcement actions against nonprotit public entities
such as municipalities or publicly—ownea utilities, the
economic benefit should be calculated. The tull economic
benefit component need not be automatically used in computing
the penalty, however. Treatment ot the economic benefit
component in determining appropriate penalties in actions
against municipalities and publicly—owned utilities is discussed
further in Section II.A.3.b of this policy dealing with
settling cases for an amount less than the economic benetit
because of compelling public concerns.
1. Benefit from delayed costs
In many instances, the economic advantage to be derivea
trom noncompliance is the ability to delay making the expend-
itures necesssary to achieve compliance. For example, a
tacility which fails to install a scrubber will eventually
have to spend the money neeaea to install the scrubber in
order to achieve compliance. But, by deferring these capital
costs until EPA or a State takes an entorcement action, that
facility has achieved an economic benefit. Among the types
ot violations which may result in savings trom deterred cost
are the following:

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—4—
o Failure to install equipment needed to meet emission
control standards.
o Failure to effect process changes needed to lessen
pollution.
o Testing violations, where the testing still must be
done to demonstrate achieved compliance.
The economic benefit of delayed compliance should be
computed using the Methodology for Computing the Economic
Benefit of Noncompliance . This document, which is under
development, provides a method for computing the economic
benefit of noncompliance based on a detailed economic analysis.
The method will largely be a refined version of the method
used in the previous Civil Penalty Policy issued July 8,
1980, for the Clean Water Act and Title I of the Clean Air
Act. A computer program will be available to the Regions to
perform the analysis, together with instructions for its use.
Until the Methodology is issued, the economic model contained
in the July 8, 1980 Civil Penalty Poli,cy should be used. It
should be noted that the Agency recently modified this guidance
to reflect changes in the tax law.
2. Benefit from avoided costs
Many kinds of violations enable a violator to avoid
permanently certain costs associated with compliance. These
include cost savings for:
o Operation arid maintenance of equipment that the violator
failed to install.
o Failure to properly operate and maintain existing
control equipment (or process equipment if it affects
pollution control).
o Failure to employ a sufficient number of adequately
trained staff.
o Failure to establish or follow precautionary methods
required by regulations or permits.
o Process, operational, or maintenance savings from
removing pollution equipment.
o Failure to conduct testing which was once necessary
but is not any longer.

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—5—
The benefit from avoided costs must be computed using
the Methodology for Computing the Economic Benefit of
Noncompliance . Again, until the Methodology is issued, the
method contained in the July 8, 1980, Civil Penalty Policy
should be used as modified to reflect changes in the tax law.
3. Settling cases for an amount less than the economic
benefit
As noted above, settling for an amount which does not
remove the economic benefit of noncompliance can encourage
people to wait until EPA or the State begins an enforcement
action before complying. For this reason, it is general
Agency policy not to settle for less than this amount. There
are three general areas (described below) where settling for
less than the economic benefit may be appropriate. However,
in any individual case where the Agency decides to settle for
less than the economic benefit, the case development team
must detail those reasons in the case file and in any memoranda
accompanying the settlement. Following are circumstances
where EPA can settle for less than the economic benefit:
a. Benefit component .nvolves insignificant amount
It is clear that assessing the benefit component and
negotiating over it will often represent a substantial
commitment of resources. Such a commitment of resources may
not be warranted in cases where the magnitude of the benefit
component is not likely to be significant, (e.g., not likely
to have a substantial financial impact on the violator. ) For
this reason, the case development team has the discretion
not to seek the benefit component where it appears that the
amount of that component is likely to be less than $5,000.
In exercising that discretion, the case development team
should consider the following factors:
o Impact on violator : The likelihood that assessing
the benefit component as part of the penalty will
have a noticeable effect on the violator’s competitive
position or overall profits. If no such effect
appears likely, the benefit component should probably
not be pursued.
o The size of the gravity component : If the gravity
component is relatively small, it may not provide a
sufficient deterrent, by itself, to achieve the goals
of this policy. In situations like this, the case
development team should insist on including the benefit
component in order to develop an adequate penalty.

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—6—
In certain classes of violations, the penalty will
contain no economic benefit component. Most of these classes
of violations are handled in the appendices to this penalty
policy. However, in a case of a non—recurring operation and
maintenance violation which is being handled under this
policy, the most appropriate way to settle the matter is
often a small penalty. It makes little sense to assess in
detail the economic benefit for each individual violation
beause the benefit is likely to be so small. Therefore, for
these violations, the economic benefit component need not be
computed.
b. Compelling public concerns
The Agency recognizes that there may be some instances
where there are compelling public concerns that would not be
served by taking a case to trial. In such instances, it may
become necessary to consider settling a case for less than
the benefit component. This may be done only if it is
absolutely necessary to preserve the countervailing public
interests. Such settlements might be appropriate where the
following circumstances occur:
o There is very substantial risk of creating precedent
which will have a significant adverse effect upon the
Agency’s ability to enforce the law or clean up
pollution if the case is taken to trial.
o Removal of the economic benefit would result in plant
closings, bankruptcy, or other extreme financial
burden, and there is an important public interest in
allowing the firm to continue in business. Alter-
native payment plans should be fully explored before
resorting to this option. Otherwise, the Agency will
give the perception that shirking one’s environmental
responsibilities is a way to keep a failing enterprise
afloat. This exemption does not apply to situations
where the plant was likely to close anyway, or where
there is a likelihood of continued harmful noncompliance.
o In enforcement actions against nonprofit public entities
such as municipalities and publicly—owned utilities,
assessment of the civil penalty threatens to disrupt
continued provision of essential public services.
c. Litigation practicalities
Regardless of the type of violations a defendant has
committed or a particular defendant’s reprehensible conduct,
EPA can never demand more in civil penalties than the statutory
maximum (twenty—five thousand dollars a day) multiplied by

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—7—
the number of days of violation for each violation. Note
that for purposes of computing both the statutory maximum
penalty and the minimum settlement amount, the period of
noncompliance begins with the earliest provable day of vio-
lation and ends with the projected date of compliance. The
Agency realizes that in certain cases, it is highly unlikely
the EPA will be able to recover the full economic benefit in
litigation. This may be due to applicable precedent,
competing public interest considerations, or the specific
facts, equities, evidentiary issues or legal problems pertain-
ing to a particular case. In such a situation it is unrealistic
to expect EPA to obtain a penalty settlement which it could
not achieve through litigation. The case development team
then may pursue a lower penalty amount. The case development
team must consult with EPA Headquarters and receive the
approval of the Associate Enforcement Counsel for Air in
order to propose settling for less than the economic benefit
because of litigation practicalities.
d. Concurrent §120 action
EPA will not usually seek to recover the economic benefit
of noncompliance from one violation under both §113 and §120.
Therefore, if a §120 action is pending or has been concluded
against a source for a particular violation and a §113 penalty
settlement amount is being calculated for that same violation,
the economic benefit component should not be included for the
period from the date of issuance of the §120 Notice of
Noncompliance to the date of compliance. Economic benefit
should be assessed from the date of the earliest provable
violation to the date the NON was issued.
In these cases, EPA should not automatically settle for
less than the economic benefit. The statute allows dual
recovery for the economic benefit, and so each case must be
considered on its individual merits. Thus the Agency may
settle for less than the economic benefit in the §113 action
if the case development team determines such a settlement
equitable and justifiable.
B. THE GRAVITY COMPONENT
As noted above, the Policy on Civil Penalties specifies
that a penalty, to achieve deterrence, should remove any
economic benefit of noncompliance, and should also include an
amount reflecting the seriousness of the violation. Section
113(b) instructs EPA to take these factors into consideration
in setting the appropriate penalty amount. These factors
are referred to as the “gravity component.” The purpose of
this section of the document is to establish an approach to
quantifying the gravity component.

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-8-
Assigning a dollar figure to represent the gravity of
violation is an essentially subjective process. Nevertheless,
the relative seriousness of different violations can be fairly
accurately determined in most cases. This can be accomplished
by reference to the goals of the Clean Air Act to protect and
enhance the quality of the nation’s air resources and the
facts of each particular violation. Thus, linking the dollar
amount of the gravity component to these objective factors is
a useful way of insuring that violations of approximately
equal seriousness are treated the same way. The objective
factors are designed to reflect considerations enunieruated
in §113(b) of the Clean Air Act as those appropriate for the
court in determining the amount of a civil penalty. The
considerations set out in the statute are: size of the
business, economic impact of the penalty on the business,
and seriousness of the violation (as well as any other
factors.)
The specific objective factors in this civil penalty
policy designed to measure the seriousness of the violation
and reflecting the considerations of t ie Clean Air Act are
as follows:
o Actual or possible harm : This factor focuses on
whether (and to what extent) the activity of the
defendant actually resulted or was likely to result
in the emission of a pollutant in violation of the
level allowed by an applicable State Implementation
Plan or federal regulation.
o Importance to the regulatory scheme : This factor
focuses on the importance of the requirement to
achieving the goal of the Clean Air Act and its
implementing regulations. For example, the NSPS
regulations require owners and operators of new
sources to do emissions testing and report the
results within a certain time after start up.
If a source owner or operator does not report the
test results, EPA would have no way of knowing
whether that source is complying with NSPS
requirements.
o Size of violator : The gravity component should be
increased, in proportion to the size of the violator’s
business.

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The assessment of the first gravity factor listed above,
actual or possible harm arising from a violation, is a complex
matter. For purposes of ranking violations according to
seriousness, it is possible to distinguish violations within
a category on the basis of certain considerations, including
the following:
o Amount of pollutant : Adjustments for the amount
of the pollutant are appropriate.
o Sensitivity of the environment : This factor focuses
on the location where the violation was committed.
For example, excessive emissions in a r onattainment
area are usually more serious than excessive
emissions in an attainment area.
o Toxicity of the pollutant : Violations involving highly
toxic pollutants are more serious and should result in
relatively larger penalties.
o The length of time a violation continues : The longer
a violation continues uncorrected, the greater is the
risk of harm.
The following dollar amounts assigned to each factor
should be added together to arrive at the total gravity
component:
1. Actual or possible harm
a. Level of violation:
0-30% above standard $4,000
30-70% “ 8,000
70-100% “ 12,000
101-300% “ “ 15,000
over 301% “ “ 30,000
Normally the highest documented level of violation should
be used for this factor. If that level, in the opinion of the
case development team, is not representative of the period of
violation, an average of violations may be used instead.
b. Toxicity of the pollutant: Violations of NESHAPs
regulations not handled by separate guidance or violations
involving other toxic pollutants: $15,000.
c. Sensitivity of environment
i. Primary non-attainment area $15,000
ii. Secondary nonattainment area 10,000

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iii. Attainment area Class I $ 5,000
iv. Attainment area Class II or III 2,000
d. Length of time of violation
0-6 mo. $ 2,000
7-12 mo. 4,000
13-18 mo. 6,000
19-24 mo. 8,000
25-30 mo. 10,000
31-36 mc. 12,000
37-42 mo. 14,000
43-48 mc. 16,000
more than 48 mo. 20,000
2. Importance to regulatory scheme
Violations so important to regulatory scheme that
additional penalties must ensue:
Reporting requirements violations. $15,000.
Operation and maintenance practices which result in
violations. $15,000.
3. Size of violator
Net current assets:
under $100,000: $1 ,000
$100,001 - $1,000,000: $2,000
$1 ,000,001 - $5,000,000: $8,000
$5,000,001 - $20,000,000: $12,000
over $20,000,000: $20,000
The process by which the gravity component was computed
must be memorialized in the case file. Combining the benefit
component with the gravity component yields the preliminary
deterrence amount.
III. ADJUSTING THE GRAVITY COMPONENT
The second goal of the Policy on Civil Penalties is the
equitable treatment of the regulated community. One important
mechanism for promoting equitable treatment is to include the
benefit component discussed above in a civil penalty assessment.
This approach would prevent violators from benefiting econo-
mically from their noncompliance relative to parties which
have complied with environmental requirements.

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—1 •l —
In addition, in order to promote equity, the system for
penalty assessment must have enough flexibility to account
for the unique facts of each case. Yet it still must produce
consistent enough results to treat similarly-situated violators
similarly. This is accomplished by identifying many of the
legitimate differences between cases and providing guidelines
for how to adjust the preliminary deterrence amount when
those facts occur. The application of these adjustments to
the preliminary deterrence amount prior to the commencement
of negotiation yields the initial minimum penalty settlement
amount. During the course of negotiation, the case develop-
ment team may further adjust this figure to yield the adjusted
minimum penalty amount.
Nevertheless, it should be noted that equitable treatment
is a two-edged sword. While it means that a particular
violator will receive no higher penalty than a similarly
situated violator, it also means that the penalty will be no
lower.
The purpose of this section of the document is to
establish additional adjustment factors to promote flexibility
and to identify management techniques that will promote
consistency. This section sets out guidelines for adjusting
the gravity component to account for some factors that fre-
quently distinguish different cases. Those factors are:
degree of willfulness or negligence, degree of cooperation!
noncooperation, history of noncompliance, ability to pay, and
other unique factors. These adjustment factors will apply
only to the gravity component and not to the economic benefit
component. Violators bear the burden of justifying mitigation
adjustments they propose based on these factors.
Within each factor there are three suggested ranges of
adjustment. The first, typically a 0-30% adjustment of the
gravity component, is within the absolute discretion of the
case development team. 2 ! The second, typically a 31-40%
adjustment, is only appropriate in unusual circumstances.
2 /Absolute discretion means that the case development team
m y make penalty development decisions independent of EPA
Headquarters. Nevertheless it is understood that in all
judicial matters, the Department of Justice can still review
these determinations if they so desire. Of course the
authority to exercise the Agency’s concurrence in final
settlements is covered by the applicable delegations.

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The third range, typically beyond 40% adjustment, is only
appropriate in extraordinary circumstances. Adjustments in
the latter two ranges, unusual and extraordinary circumstances,
will be subject to scrutiny in any performance audit. The
case development team may wish to reevaluate these adjustment
factors as the negotiations progress. This allows the team
to reconsider evidence used as a basis for the penalty in
light of new information.
The adjustment factors can, potentially, add up to more
than 100%. The gravity component may only be adjusted down
to zero for a maximum of 100% adjustment for all factors
combined. If a case development team assigns a 100% adjust-
ment to less than the total number of factors, then the
remaining factors may not be used to lower the penalty further.
The adjustment factors cannot be used to mitigate the economic
benefit component.
% here the Region develops the penalty figure, the
application of adjustment factors will be part of the planned
Regional audits. Headquarters will’be responsible for proper
application of these factors in nationally—managed cases. A
detailed discussion of these factors follows.
A. DEGREE OF WILLFULNESS OR NEGLIGENCE
Although the Clean Air Act is a strict liability statute
for civil actions, this does not render the violator’s will-
fulness or negligence irrelevant. Knowing or willful viola-
tions can give rise to criminal liability, and the lack of
any negligence or willfulness would indicate that no addition
to the penalty based on this factor is appropriate. Between
these two extremes, the willfulness or negligence of the
violator should be reflected in the amount of the penalty.
In assessing the degree of willfulness or negligence,
all of the following points should be considered:
o How much control the violator had over the events
constituting the violation.
o The foreseeability of the events constituting the
violation.
O The level of sophistication within the industry in
dealing with compliance issues or the accessibi—
lity of appropriate control technology (if this infor-
mation is readily available). This should be balanced
against the technology—forcing nature of the statute,
where applicable.

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—13—
Whether the violator in fact knew of the legal
requirement which was violated.
It should be noted that this last point, lack of knowledge
of the legal requirement, should never be used as a basis to
reduce the penalty. To do so would encourage ignorance of
the law. Rathe’r, knowledge of the law should serve only to
enhance the penalty.
The amount of control which the violator had over how
quickly the violation was remedied is also relevant in certain
circumstances. Specifically, if correction of the environmental
problem was delayed by factors which the violator can clearly
show were not reasonably foreseeable and were out of its control,
the penalty may be reduced.
The Clean Air Act was conceived by Congress as a technology—
forcing statute and so unavailability of applicable control
technology is not an excuse for not complying with emission
requirements. If appropriate pollution control equipment is
not readily available on the commerci l market, a source
owner or operator must enlist skilled engineers to devise new
kinds of pollution control equipment that will do the job.
The uniqueness and difficulty presented by the requirement to
control the emissions from a particular source, however, will
affect the size of penalty the Agency deems appropriate. If
a source owner has been spending money and effort in a good
faith, documentable program to install equipment that will
control the source’s air pollution but the source remains out
of compliance even after these efforts, the case development
team may decide to reduce the gravity component. The
technological efforts chosen for compliance must be viewed as
having a good chance for compliance in order to have this
factor count toward mitigation.
Ordinarily, a contractor’s failure to perform as required
by the contract is not considered to be a factor out of a
source’s control. A source must bear the responsibility of
selecting a contractor reliable enough to perform the required
tasks satisfactorily.
The case development team has absolute discretion to
adjust the penalty up or down by 30% of the gravity component.
Adjustments in the + 31—40% range should only be made in
unusual circumstances. Adjustments for this factor beyond ±
40% should be made only in extraordinary circumstances.
Adjustments in the unusual or extraordinary circumstance
range will be subject to scrutiny in any audit of performance.

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B. DEGREE OF COOPERATION/NONCOOPERATION
The degree of cooperation or noncooperation of the
violator in remedying the violation is an appropriate factor
to consider in adjusting the penalty. Such adjustments are
mandated by both the goals of equitable treatment and swift
resolution of environmental problems. There are two areas
where this factor is relevant.
1. Prompt Reporting of Noncompliance
Cooperation can be manifested by the violator promptly
reporting its noncompliance. Assuming such self-reporting is
not required by law, such behavior should result in the
mitigation of any penalty.
The suggested ranges of adjustment are as follows. The
case development tean has absolute discretion on any adjust-
ments up to + 30% of the gravity component for cooperation!
noncooperation. In extraordinary circumstances, the case
development team may adjust the penalty beyond the ± 30%
range.
2. Prompt Correction of Environmental Problems
The Agency should provide incentives for the violator to
commit to correcting the problem promptly. This correction
must take place before litigation is begun, except in
extraordinary circumstances. 3 ! But since these incentives
must be consistent with deterrence, they must be used
judiciously.
The circumstances under which the penalty is reduced
depend on the type of violation involved and the source’s
response to the problem. A straightforward reduction in the
amount of the gravity component of the penalty is most appro-
priate in those cases where either: 1) the environmental
problem is actually corrected prior to initiating litigation,
or 2) ideally, immediately upon discovery of the violation.
Under this approach, the reduction typically should be a
substantial portion of the unadjusted gravity component.
3 /For the purpose of this document, litigation is deemed to
b gin when an Assistant United States Attorney files a complaint
in court.

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—15-
In general, the earlier the violator instituted corrective
action after discovery of the violation and the more complete
the corrective action instituted, the larger the penalty
reduction EPA will consider. Swift resolution of environmental
problems will be encouraged if the violator clearly sees that
it will be financially disadvantageous for the violator to
litigate without remedying noncompliance. At the discretion
of the case development team, the unadjusted gravity component
may be reduced up to 50%. This would depend on how long the
environmental problem continued before correction and the
amount of any environmental damage. If a violator begins
voluntarily and promptly to correct its violations upon being
informed by EPA or a State that it is in violation of Clean
Air Act regulations, the case development team should be more
likely to decide that the gravity component should be reduced.
Adjustments greater than 50% are permitted, but will be the
subject of close scrutiny in auditing performance.
In all instances, the facts and rationale justifying the
penalty reduction must be recorded in the case file and included
in any memoranda accompanying settlement.
C. HISTORY OF NONCOMPLIANCE
Where a party has violated a similar environmental
requirement before, this is usually clear evidence that the
party was not deterred by a previous governmental enforcement
response. Unless one of the violations was caused by factors
entirely out of the control of the violator, this is an
indication that the penalty should be adjusted upwards.
In deciding how large these adjustments should be, the
case development team should consider the following points:
o How similar the previous violation was.
o How recent the previous violation was.
o The number of previous violations.
o Violator’s response to previous violation(s) in regard
to correction of the previous problem and attempts to
avoid repetition.
Nevertheless a violation should generally be considered
“similar” if a previous enforcement response should have
alerted the party to a particular type of compliance problem.
Some facts that indicate a “similar violation” was
committed are as follows:

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-16-
o The same permit was violated.
o The same substance was involved.
o The same process points were the source of the violation.
o The same statutory or regulatory provision was violated.
o A similar act or omission (e.g. same kind of emission
limitation from same piece of equipment.)
For purposes of this section, a “prior violation” includes
any act or omission for which a formal state, local, or federal
enforcement response has occurred (e.g., notice of violation,
warning letter, complaint, consent decree, consent agreement,
or final order). It also includes any act or omission for
which the violator has previously been given written notifi-
cation, however informal, that the Agency believes a violation
exists.
In the case of large corporations with many divisions or
wholly-owned subsidiaries, it is sometimes difficult to
determine whether a previous instance of noncompliance should
trigger the adjustments described in this section. New
ownership often raises similar problems. In making this
determination, the case development team should ascertain who
in the organizational unit had or reasonably should have had
control or oversight responsibility for violative conduct.
In those cases where there is a close relationship between
defendants, the violation will be considered part of the
compliance hi story.
In general, the case development team should begin with
the assumption that if the same corporation was involved, the
adjustments for history of noncompliance should apply. In
addition, the case development team should be wary of a party
changing operators or shifting responsibility for compliance
to different groups as a way of avoiding increased penalties.
The Agency may find a consistent pattern of noncompliance by
many divisions or subsidiaries of a corporation even though
the facilities are at different geographic locations. This
often reflects, at best, a corporate-wide indifference to
environmental protection. Consequently, the adjustment for
history of noncompliance should probably apply unless the
violator can demonstrate that the other violating corporate
facilities are under totally independent control.

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The following are the Framework’s suggested adjustment
ranges. If the pattern is one of “dissimilar” violations,
relatively few in number, the case development team has
absolute discretion to raise the penalty amount by 35%. For
a relatively large number of dissimilar violations, the
gravity component can be increased up to 70%. If the pattern
is one of “similar” violations, the case development team has
absolute discretion to raise the penalty amount up to 35% for
the first repeat violation, and up to 70% for further repeated
similar violations.
D. ABILITY TO PAY
The Agency will generally not request penalties that are
clearly beyond the means of the violator. Therefore EPA
should consider the ability to pay a penalty in arriving at a
specific final penalty assessment. (With regard to the Benefit
Component, this consideration is given under Section II. A.3.b.)
At the same time, it is important that the regulated community
not see the violation of environmental requirements as a way
of aiding a financially-troubled business. EPA reserves the
option, in appropriate circumstances, of seeking a penalty
that might contribute to a company going out of business.
For example, it is unlikely that EPA would reduce a
penalty where a facility refuses to correct a serious violation.
The same could be said for a violator with a long history of
previous violations. That long history would demonstrate
that less severe measures are ineffective.
The financial ability adjustment will normally require a
significant amount of financial information specific to the
violator. The case development team should assess this
factor after commencement of negotiation with the source if
the source raises it as an issue.
The burden to demonstrate inability to pay, as with the
burden of demonstrating the presence of any mitigating
circumstances, rests on the defendant. If the violator fails
to provide sufficient information, then the case development
team should disregard this factor in adjusting the penalty.
The National Enforcement Investigations Center (NEIC) has
developed the capability to assist the Regions in determining
a firm’s ability to pay. Further information on this system
will be made available shortly under separate cover.
When it is determined that a violator cannot afford the
penalty prescribed by this policy, a next step is to consider
a delayed payment schedule. Such a schedule might even be
contingent upon an increase in sales or some other indicator
of improved business. This approach is a real burden on the
Agency and should only be considered on rare occasions.

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Consider straight penalty reductions as a last recourse :
If this approach is necessary, the reasons for the case
development team’s conclusion as to the size of the necessary
reduction should be made a part of the formal enforcement
file and the memorandum accompanying the settlement. 4 !
Consider joinder of the violator’s individual owners :
This is appropriate if joinder is legally possible and
justified under the circumstances. Joinder is not legally
possible unless the prerequisites of §113 of the Clean Air
Act have been met -- issuance of an NOV to the person and
documentation of violation thirty days after NOV issuance.
The circumstances where individual joinder is appropriate
should be considered to be present only when intensive
discovery shows that stockholders have used the corporate
form as a subterfuge to avoid personal liability.
Regardless of the Agency’s determination of an appropriate
penalty amount to pursue based on ability to pay considerations,
the violator is still expected to comply with the law.
E. OTHER UNIQUE FACTORS
The case development team has absolute discretion to
adjust penalties up or down by 10% of the gravity component
for unanticipated factors which might affect the penalty in
each case. Adjustments beyond the absolute discretion range
will be subject to scrutiny during audits. In addition, they
will be allowed primarily for compelling public policy concerns
or litigation practicalities as discussed in Section II.A.3.c.,
above. The rationale for the reduction must be expressed in
writing in the case file and in any memoranda accompanying
the settlement.
IV. CREDIT PROJECTS IN SETTLEMENT OF GOVERNMENT CLAIMS
In the past, the Agency has accepted various environmentally
beneficial expenditures in settlement of a case and chosen
not to pursue more severe penalties. In general, the regulated
community has been very receptive to this practice. In many
4 /if a firm fails to pay the agreed-to penalty in a judicial
final order, then the Agency must follow the Federal Claims
Collection Act, 31 U.S.C. §3701 et seq., procedures for
obtaining the penalty amount.

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-19-
cases, violators have found “credit projects” to be more
attractive than a traditional penalty. Many useful projects
have been accomplished with such funds. But in some instances,
EPA has accepted for credit certain expenditures whose actual
environmental benefit has been somewhat speculative.
Generally, these credit projects should be reserved as
an incentive to settlement before trial begins. For this
reason, such arrangements will be allowed only in pretrial
agreements except in extraordinary circumstances. Moreover,
certain EPA policies place additional limitations on the use
of credit projects. For sources in nonattaininent areas,
credit projects will never be allowed to mitigate the require-
ment for payment of a substantial cash penalty. Any credit
project in these cases, whether agreed to before or after
trial begins, must be in addition to the substantial cash
penalty.
In situations where they are allowed, the acceptance of
credit projects for environmentally betieficial expenditures
is subject to certain conditions. The Agency has designed
these conditions to prevent the abuse of this procedure.
Most of the conditions below applied in the past, but some
are new. All of these conditions must be met before credit
projects may be accepted: 5 !
o No credits can be given for activities that
currently are or will be required under current
law or are likely to be required under existing
statutory authority in the forseeable future
(e.g., through upcoming rulemaking).
o The majority of the project’s environmental
benefit should accrue to the general public
rather than to the source or any particular
governmental unit.
5 /In extraordinary circumstances, the Agency may choose not
t6 pursue the full calculated penalty and, instead, give
credit for “alternative” work done prior to commencement of
negotiations. In order for EPA to forgo seeking higher
penalties, the violator must prove that it has met the other
conditions herein stated. If the violator fails to prove
this in a satisfactory manner, the case development team has
the discretion to completely disallow the credit project.
As with all alternative projects, the case development team
has the discretion to still pursue some cash penalties in
settlement.

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-20-
o The project cannot be something which the
violator otherwise could reasonably be expected
to do as part of sound business practices.
o Projects must be for an environmentally beneficial
purpose which is in furtherance of the statutory goals
of the Clean Air Act.
Once the trial has commenced, credit projects must
fulfill an additional requirement. Such projects must address
amelioration of the same pollutant as the pollutant involved
in the violation which forms the basis for EPA’s claim for
civil penalties.
In all cases where credit projects are allowed, the
case file should contain doc .nnentation showing that each of
the conditions listed above have been met in that particular
case. In addition, when considering penalty credits, Agency
negotiators should take into account the following points:
o EPA must not lower the amount it decides to
accept in credit projects by mote than the after-
tax amount the violator spends on the project.
o The project should not require a large amount
of EPA oversight for its completion. In general,
the less oversight the proposed credit project
would require from EPA to ensure proper comple-
tion, the more receptive EPA can be toward
accepting the project in settlement.
o The project should receive stronger consideration
if it will result in the abatement of. existing
pollution, and involve an activity that could be
ordered by a judge as equitable relief.
o The project should receive stronger consideration
if undertaken at the facility where the violation
took place.
o The company should agree that any publicity it
disseminates regarding its funding of the project
must include a statement that such funding is
in settlement of an enforcement proceeding brought
by EPA.
Each credit project must entail an identified project
to be completely performed by the defendant. Under the
plan, EPA must not hold any funds which are to be spent at
EPA’s discretion. The final order, decree or judgment should
state what financial penalty the violator is actually paying
and describe as precisely as possible the credit project the
violator is expected to perform. It should describe the

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—21--
basis for the bargain between the Government and the defendant
in terms of a “settlement” or a “compromise” of the Government’s
claim for civil penalties and injunctive relief. If any fund
is to be created to guarantee the defendant’s faithful perfor-
mance of an agreement to undertake or to fund a credit project,
such a fund should be called a “security account” and should be
held by a party other than the U.S. Government.
V. EXAMPLES
Example 1:
I. Facts:
Company A runs its manufacturing operations with power
produced by its own coal—fired boilers. The boilers are major
sources of sulfur dioxide. The State Implementation Plan has a
sulfur dioxide emission limitation for each boiler of .68 lbs.
per million B.T.U. The boilers were inspected by EPA on
March 19, 1983, and the SO 2 emission rate was 2.53 lbs. per
million B.T.U. A NOV was issued for, the SO 2 violations on
April 10, 1983. EPA again inspected Company A on June 2, 1983
and found the SO 2 emission rate to be unchanged, in excess of
the allowable emission rate. Company A had never installed any
pollution control equipment on its boilers, even though
personnel from the state pollution control agency had contacted
Company A and informed it that the company was subject to state
air pollution regulations. The state had issued an adminis-
trative order on September 1, 1981 for SO 2 emission violations
at the same boilers. The order required compliance with appli-
cable regulations, but Company A had never complied with the
state order. Company A is located in a nonattainment area.
Company A has net current assets of $760,000.
II. Computation of penalty
A. Economic benefit component
EPA used the computer model in the July 1980 Civil Penalty
Policy to find the economic benefit component. To use this
computer model, the Region had to input values for each of
eighteen parameters. These are:
1. Initial Capital Investment
2. Initial Annual O&M Expense
3. Investment Tax Credit Rate
4. Income Tax Rate
5. Inflation Rate
6. Discount Rate
7. Interest Rate
8. Preferred Stock Dividend Rate

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—22—
9. Equity Share of Investntent
10. Preferred Stock Share
11. Debt Share of Investment
12. Depreciation Method
13. Depreciation Life
14. Useful Life
15. First Month of Noncompliance
16. Compliance Date
17. Penalty Payment Date
18. Percent Financed with Industrial Development Bonds
The economic benefit component calculated by the computer
model was $243,500.
B. Gravity component
1. Actual or possible harm
a. Amount of pollutant: over 100% above standard
Sl5 1000
b. Toxicity of pollutant:. No penalty for this
component.
C. Sensitivity of the environment: Sl5,000
d. Length of time of violation.
Measured from state order issuance on September 1,
1981 to compliance date in consent decree,
September 1, 1985. (If consent decree or
judgment order is filed at a later date, this
element, as well as well as elements in economic
benefit component must be recomputed.)
48 mon. — $16,000
2. Importance to regulatory scheme.
No penalty for this component because violation is
not reporting requirement or operation & maintenance
problem.
3. Net current assests: $2,000.
All the parts of the gravity component are now added:
$15,000
15 ,000
16,000
2,000
$48,000

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—23—
This is added to the economic benefit component:
$243,500 economic benefit
48,000 gravity
$291,500
C. Adjustment Factors
1. Degree of willfulness/negligence
Because Company A was on notice of its violations and,
moreover, disregarded the state administrative order
to comply with applicable regulations, the gravity
component is increased 30%.
30% of $48,000 = $14,400
2. Degree of Cooperation/Noncooperation
No adjustments were made in the category because
Company A was not cooperative.
3. History of noncompliance
Gravity component increased 30% here because Company
A violated state order issued for same violation.
30% of $48,000 = $14,400.
4. Ability to pay
No adjustment here because Company A did not provide
EPA with financial information indicating inability
to pay.
Total penalty: $291,500 initial penalty
28,800 adjustments
S 320 , 300
Company A paid the U.S. Treasury $320,300.

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—24--
Example 2:
I. Facts:
Company B produces charcoal from wood waste at its
plant, located in an attainment Class II area. Company B is
a major source of particulate emissions. It has current net
assets of $74,000. Regulations in the State Implementation
Plan limit particulate emissions to 3.39 lbs per hour.
Company B installed a fume incinerator at its plant in 1978.
On November 1, 1982, EPA inspected Company B and found the
particulate emission rate to be 4.27 lbs per hour. EPA
issued an NOV on January 5, 1983. An EPA inspection on
March 10, 1983, showed that Company B continued to be in
violation.
Company B had discovered, when it initially began to try
to control the emissions at its charcoal plant in 1975, that
no appropriate control equipment was available for sale
anywhere. It had to design and build all the pollution
control equipment it needed to install. Company B began
doing research and planning and testing various configurations
of fume incinerators to try to find the solution to its
particulate emission problem. In 1978, Company B finally
believed it had come up with an effective control system and
that it was in compliance with state regulations. In 1983,
off—the—shelf technology to control emissions from Company
B’s charcoal operation still did not exist. As soon as the
Company received its NOV, however, it hired engineering
consultants to design a more effective duct system for the
fume incinerator. These consultants were successful in
designing a system which was installed in January, 1984.
Company B performed an EPA—observed stack test on
February 1, 1984 which showed a particulate emission rate
of 3.05 lbs. per hour.
Company B has been in a very strained financial situation
for the last three years. The company’s management has been
considering filing for Chapter 11 bankruptcy protection.
Company B has not made a profit for the past two years.
II. Computation of penalty
A. Benefit component
The economic benefit was calculated by running the
computer model provided for in the July 1980 Civil
Penalty Policy (See Example 1 for inputs.)

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—25—
The economic benefit derived from the computer
calculation was: $43,480.
B. Gravity component
1. Actual or possible harm
a. M ount above the standard:
4.27 lbs./hr. is approximately 20% above 3.39
lbs./hr. so this component is $4,000
b. Toxicity of pollutants: No penalty here.
c. Sensitivity of environment; Class II - attainment
area $2,000
d. Length of time of violation
November 1, 1982 - February 1, 1984: 15 months
of violation: $6,000
2. Importance to regulatory scheme
No penalty here because violation not connected
with operation and maintenance practices or
reporting requirements
3. Size of violator
Net current assets - $74,000 = $1 ,000
Total gravity factors: $13,000;
Initial Penalty 43,480
+13,000
$56 ,480
C. Flexibility - Adjustment Factors
1. Degree of willfulness or negligence
The gravity component was mitigated by 40% here
because Company B, unlike Company A in the pre-
vious example, had made good efforts to comply
and did not know it was in violation and also
because of the uniqueness and difficulty of
controlling the emissions from Company B.
$13,000
- 5,200
$ 7,800

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—26—
2. Degree of Cooperation/Noncooperation
Because Company B was so prompt in correcting its
problem once it received the NOV, unlike Company
A, the gravity component was mitigated by 30%.
30% of $13,000 = $3,900
$ 7,800
— 3,900
$ 3,900
3. History of noncompliance
No adjustment here because Company B had no previous
history of noncompliance.
4. Ability to Pay
Because of Company B’s financial situation, the
gravity component was reduced 30%.
$ 3,900
— 3,900
$ 0
The gravity component, in this case, is reduced
to 0.
The initial penalty presented at settlement negotiation
is, therefore, $43,480. If Company B raises its ability to
pay during settlement negotiations, the case development team
will consider it at that time in the context of Section
II.A.3.b. That adjustment factor has already been given full
consideration with regard to the Gravity Component.
Example 3:
I. Facts:
Company C, located in a primary nonattainment area,
commenced construction in January 1982. It began its operations
in April 1983. It runs a coal—fired boiler subject to the
NSPS regulations for fossil—fuel—fired steam generators (40
CFR Part 60 Subpart D). The boiler is a major source of
particulates and SO 2 . Subpart D requires that boiler emissions
not exceed 1.2 lbs. per million BTU. General NSPS regulations
require that a source owner or operator subject to NSPS
fulfill certain notification and recordkeeping functions (40
CFR §60.7), conduct performance tests (40 CFR §60.8) and
conduct specified continuous monitoring (40 CFR §60.13).

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—27—
Company C is believed to be in compliance for SO 2
based on coal—sampling data and the fact that it has installed
the proper pollution control equipment. However, although
§60.8 requires Company C to test within 180 days of startup,
or by October 1983, the company had not conducted performance
tests as of September 1, 1984.
Company C also failed to notify EPA of the date it
commenced construction within 30 days after such date
(February, 1982) or the date of anticipated startup between
30—60 days prior to such date (March, 1983) or the date of
actual startup within 15 days after such date (April, 1983)
(40 CFR §60.7). Continuous emission monitoring equipment
was installed, but continuous monitoring certification has
never been done, and so the requirement that it be done
within 30 days after performance testing (November, 1983)
was not fulfilled either. Company C is now sending EPA CEM
reports.
Company C ignored two letters from EPA, one dated
November, 1983 and one dated March, 1984 informing it that
it was subject to NSPS requirements. It did negotiate with
EPA after the complaint was filed on September 1, 1984, and
agreed to a consent decree requiring all testing and reporting
to be done by December 1, 1984. Company C has assets of
$7,000,000.
II. Computation of penalty
A. Benefit component
The Region determined that the economic benefit component
was very likely to be less than $5,000. Therefore,it was not
calculated.
B. Gravity component
1. Actual or possible harm
a. Amount of pollutant: not over standard — 0
b. Toxicity of pollutant: No penalty for this
component

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—28—
c. Sensitivity of the environment: $15,000
d. Length of time of violation
1) Performance testing: October, 1983 —
December 1984: 14 months
2) Failure to report commencement of construc-
tion February 1982 — November 1983: 21
months (date of EPA’S first letter to Company)
3) Failure to report actual startup April, 1983 —
November 1983: 7 months
4) Failure to perform CEM certification November
1983 — December 1984: 13 months
Total: 14+21+7+13=55months=
$20,000
2. Importance to regulatory scheme
Reporting requirements violations: $15,000
3. Size of violator: $12,000
All the parts of the gravity component are now added:
0
0
15,000
20,000
15,000
12,000
62,000
This is added to the economic benefit component
0 economic benefit
62,000 gravity
$62,000 initial penalty
C. Adjustment factors
1. Degree of willfulness/negligence

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—29—
Because Company C was on notice of its violations
and disregarded the requirements to comply, even
though it would have been easy for them to do
so, the gravity component is increased 30%
30% of $62,000 = $18,600
2. Degree of Cooperation/Noncooperation
No adjustnients were made in this category
because Company C was not cooperative.
3. History of noncompliance
No past history of noncompliance
4. Ability to pay
No adjustment here because Company C did not
provide EPA with financial information indicating
inability to pay.
Total penalty
$62,800 initial penalty
18,600 adjustment
$80,600
Company C paid the U.S. Treasury $80,600.
VI. CONCLUSION
Treating similar situations in a similar fashion is
central to the credibility of EPA’s enforcement effort and to
the success of achieving the goal of equitable treatment.
This document has established several mechanisms to promote
such consistency. Yet it still leaves enough flexibility for
tailoring the penalty to particular circumstances. Perhaps
the most important mechanisms for achieving consistency are
the systematic methods for calculating the benefit component
and gravity component of the penalty. Together, they add up
to the preliminary deterrence amount. The document also sets
out guidance on uniform approaches for applying adjustment
factors to arrive at an initial penalty amount prior to
beginning settlement negotiations or an adjusted penalty
amount after negotiations have begun.

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—30—
Nevertheless, if the Agency is to promote consistency,
it is essential that each case file contain a complete
description of how each penalty was developed. This descrip-
tion should cover how the preliminary deterrence amount was
calculated and any adjustments made to the preliminary
deterrence amount. It should also describe the facts and
reasons which support such adjustments. Only through such
complete documentation can enforcement attorneys, program
staff and their managers learn from each other’s experience
and promote the fairness required by the Policy on Civil
Penalties.
C t M
Assistant Administrator for Enforcement
and Compliance Monitoring
C 7
Jo eph A. Cannon I’ -‘
‘Assistant Administrator for Air and Radiation

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APPENDIX I
Penalty Policy tor Violations of Certain Clean Air Act
Permit Requirements for the Construction or
Moditication of Major Stationary Sources of Air Pollution
I. Introduction
EPA’s Clean Air Act Stationary Source Civil Penalty
Policy, dated September 1984, applies generally to stationary
sources of air pollution which violate requirements enforce-
able under Section 113 of the Clean Air Act when such viola-
tions are the result of a failure to make capital expenditures
and/or railure to employ operation and maintenance procedures
which are necessary to achieve compliance. The general
policy does not, however, specifically address violations of
permit requirements related to the construction or modification
or major stationary sources unoer the prevention of significant
deterioration (PSI)) program and the nonattainment area new
source review progam (including the Offset Interpretative
Ruling and Section 173).
This document outlines a penalty policy which applies to
certain permit—related violations of the Clean Air Act and
provides a method of calculating a minimum settlement amount
for such violations. This “Permit Penalty Policy” was
originally issued in February 1981 to deal with a subject
area not covered by the 1980 penalty policy. It has been
slightly revised for inclusion in the 1984 policy, but the
substance is virtually identical.
As illustrated by the examples, the failure of a source
to satisfy a new source requirement may result in one viola-
tion subject to this Permit Penalty Policy, and a second
violation subject to the general policy. If this is the
case, the Permit Penalty Policy should be used to find the
minimum settlement figure for the permit violation(s) and
the general policy should be used to establish a penalty
amount for the other violation(s). These two figures should
be aoded together to produce an appropriate overall settlement
amount. It is also important to note that the policy outlined
in this document, like the general stationary source civil
penalty policy, is usea to set a minimum settlement figure.
Therefore, the penalty actually negotiated for can always be
higher than the figure derived through use of this Permit
Penalty Policy.

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—2—
II. The Permit Penalty Policy
The Permit Penalty Policy covers cases involving sources
which begin construction or operation without tirst obtaining
the required PSD or nonattainment new source permit, as well
as those which construct or operate in violation of such
valid permits. Construction proceeding in compliance with an
invalia permit is considered to be, in the context of this
penalty policy, construction without a permit.
In these cases, when the source is operating and has
enjoyed an economic benefit, that benefit should be calcu—
latea as directed in the general stationary source civil
penalty policy. As directed by the general policy, however,
the Regional Office may decide not to calculate the economic
benetit it that ottice decides that the economic benefit is
likely to be below S,000. The gravity component is then
calculated based on the matrix contained in this permit
penalty policy. Construction in the absence of a permit or
in violation of a permit has been ass .gned a scale of dollar
values on a matrix. The matrix also provides for the assess-
ment ot an additional penalty for certain specified violations
ot substantive permit preconditions or requirements. The
appropriate dollar value for a violation is dependent on an
estimate of the total cost of air pollution control at those
tacilities ot the source for which the permit is required.l/
This value is then multiplied by the number of months of
violation. 2 ’ When there are multiple permit—related violations,
1/ “Total cost of air pollution control” should include, where
relevant, pollution control equipment costs, design costs,
operation and maintenance costs, differential cost of complying
tuel v. noncomplying fuel, and other costs pertaining to
adequate control of the new source. Total cost is to be
determined by examination of what would have been required as
BACT (ror a PSD violation) or LAER (in the case of an Offset
Policy or Part D violation) . When construction is done in
phases, the operative amount is the total cost ot air pollution
controls for the entire project.
/ Month—by—month accrual of penalties was selected for
purposes of convenience and tor consistency with the general
policy. Any traction ot a month in violation is counted as a
tull month ot violation unless circumstances present a case
tor mitigation of this rule.

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—3—
a penalty tigure is calculated for each violation and the
indivioual penalty figures are added together to produce one
minimum settlement tigure. In those cases where a source
subject to a valid permit violates only the requirements of
Section 173(1) and/or Section 173(3) (requirements for con-
struction permits in nonattainment areas), or the corresponding
requirements under the Offset Policy,, the appropriate penalty
amount is determined by reference only to the matrix column(s)
citing the violation(s).
The economic benefit component and the gravity component
are added together to determine the initial minimum civil
penalty settlement amount. This initial amount should then
be adjusted, using the general stationary source civil penalty
policy factors which take into consideration individual
equitable considerations (Part III of the general policy.)
The period of civil penalty liability will, of course,
depend upon the nature and circumstances of the violation.
or example, if a source has begun acçual construction without
a required permit or under an invalid permit, the penalty
period begins on the date the source began construction and
continues either until the source obtains a valid permit or
notities the State or EPA that it has permanently ceased
construction and the project has been abandoned. / A temporary
cessation in construction does not toll the runnTng of the
penalty period. The Agency may, however, consider mitigation
ot the calculated civil penalty if a source ceases construction
within a reasonable time atter being notified of the violtion
and does not resume construction until a valid permit is
issued. It a source violates a permit condition, the period
of penalty liability for purposes ot calculating a settlement
figure begins on the first date the violation can be documented
ana will cease when the violation is corrected.
EPA realizes that. in certain cases, it is highly unlikely
that the Agency will be able to recover the full amount of
the calculated penalty in litigation. This may be due to
applicable precedent, competing public interest considerations,
3 /The period of liability is not be be confused with the
period ot continuing violation for Section 113 notice of
violation (NOv) purposes. A source which constructs without
a valid permit is in continuing violation of the Clean Air
Act for NOV purposes until it receives a valid permit or it
dismantles the new construction.

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or the specific facts, equities, or evidentiary issues
pertaining to a particular case. In such a situation it is
unrealistic to expect EPA to obtain a penalty settlement
which it could not achieve through litigation. The case
ievelopment team must consult with EPA Headquarters and
receive the approval of the Associate Enforcement Counsel for
Air in order to propose settling tor less than the minimum
penalty amount from the matrix because of litigation
practicalities.

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PERMIT PENALTY POLICY MATRIX
MINIMUM SETTLEMENT FIGURES
(per month of violation)
PSD SOURCES
TOTAL COST OF AIR
POLLUTON CONTROL FOR
NEW OR MODIFIED
SOURCE ($ THOUSANDS)
CONSTRUCTION OR
OPERATION WITHOUT
A PERMIT OR IN
VIOLATION OF A
VALID PERMIT
INCREMENT
EXCEEDED
less than 50
50-150
150-500
500-1 ,500
1 ,500-5,000
5,000-15,000
15,000-50,000
over 50,000
$ 2,000
4,000
7 ,000
11 ,000
16,000
22,000
29,000
37 ,000
$ 7,000
11 ,000
16,000
22,000
29,000
37 ,000
47,000
56,000
PART D AND OFFSET INTERPRETATIVE RULING SOURCES
TOTAL COST OF AIR
POLLUTION CONTROL
FOR NEW OR MODIFIED
SOURCE ($ THOUSANDS)
CONSTRUCTION
OR OPERATION
WITHOUT A
PERMIT OR
IN VIOLATION
OF A VALID
PERMIT
FAILURE TO
SATISFY
§173(1) OR
OBTAIN
OFFSETS
VIOLATION OF
SECTION 173(3)
OR CONDITION 2
less than 50
$ 2,000
$ 9,000
$ 5,000
50-150
5,000
14,000
9,000
150-500
9,000
20,000
14,000
500-1 ,500
14,000
27,000
20,000
1,500-5,000
20,000
35,000
27,000
5,000-15,000
27,000
44,000
35,000
15,000-50,000
35,000
54,000
44,000
over 50,000
44,000
65,000
54,000
( Add numbers when multiple categories apply )

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-6-
EXAMPLE CASES
The following hypothetical cases illustrate how the matrix is
used to calculate a minimum settlement figure.
PSD SOURCE
On July 1 , 1980, an existing major source began construc-
tion of a modification to its plywood manufacturing plant.
The modification will result in a significant net emission
increase of particulate matter. The source had not obtained
or filed for a PSD permit as of the date construction began.
On July 2, 1980, EPA investigators discovered the
construction during a routine inspection of the plywood plant.
The EPA Regional Office determined that the modification was
subject to PSD review and issued a Notice of Violation on
August 1, 1980. The NOV cited the PSD regulations and outlined
possible enforcement alternatives.
The source received the NOV on August 5, 1980, and
contacted the Regional Office on August 10, 1980. On
August 30, 1980, the Region and the source held a conference
at which the source stated that it had been aware of the need
for PSD review and permitting prior to construction. The
source also stated that it would file an application for a
permit but that it would not cease construction during the
review process.
On October 1 , 1980, the source filed a PSD application.
During the review process the Region discovered that the
source had no plans to install pollution control devices.
The Region also determined that without BACT, the modification’s
particulate emissions wuld result in an exceedance of the
particulate matter increment in the source’s area of impact.
The source, when informed of the BACT problem, indicated it
would install the necessary controls.
However, throughout the review process the source
continued construction of the modification. On December 1
1980, the source began operation of the modified source
without the required permit and without controls.
On January 15, 1981 , the source was issued a PSD permit.
On February 28, 1981, the source ceased operation of the
plywood plant to connect the pollution control equipment
called for in the PSD permit. The source resumed operation
on March 15, 1981 , in a manner Consistent with the PSD permit
conditions.

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—7—
The penalty calculation for this example begins with an
assessment of the total cost of air pollution control equipment
at the modification. For purposes of this example, assume
BACT costs $140,000.
Next, the type and number of matrix categories must be
determined. In this example the source (1) began construction
without a permit, (2) operated the plant without a PSD permit
and (3) exceeded the growth increment for particulate matter.
Therefore, this source is subject to both of the columns of
dollar values under the heading “PSD Sources.”
Once the type, number and dollar values of the penalty
are determined, these figures are multiplied by the number of
months in violation. The sums are then added together to
produce the matrix penalty amount.
In this example, the source’s period of construction
without a permit runs from July 1 , 198p, until the valid
permit was issued in January of 1981 (7 months). The period
of operation without a permit runs from the time the source
began operation (December 1 , 1980) to the date the source
received a permit (January 15, 1981) (2 months). The source
also exceeded the area growth increment for particulate
matter during the period of operation from December 1 , 1980,
to February 28, 1981 (3 months) .4/
The matrix penalty figure for this source’s PSD related
violations, based on a $140,000 total cost of control estimate,
iS:
- for the 7 month period of construction without a permit,
7 x $4,000 = $28,000
- for the 2 month period of operation without a permit,
2 x $4,000 = $8,000
4/ It is important to note that some aspects of the matrix do
not necessarily crack the statutory provisions regarding
violations. For example, there is no Clean Air Act provision
which makes increment exceedance, in and of itself, a violation
by an individual source. (The SIP must protect the increment.
The method used is PSD review with permit conditions such as
BACT, fuel use limitations, etc.) However, as a portion of
the gravity component, considering the seriousness of the
violation if a source operates and thereby violates a State’s
increment due to failure to go through PSD review as required,
an added penalty in appropriate.

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-8-
- for the 3 month period of operation during which the
increment was exceeded,
3 x $11 ,000 = $33,000
- matrix penalty figure =
$28,000 + $8,000 + $33,000 = $69,000
As noted in this policy, this figure represents a minimum
settlement figure. EPA may, at any time, negotiate for a
higher settlement figure. A lower minimum settlement figure
may also be available depending on the circumstances of the
particular case. See the general stationary source penalty
policy adjustment factors.
In addition to the permit violations described above,
commencement of operation prior to the installation of BACT
constitutes a separate violation subject to the general
stationary source civil penalty policy. The general policy
should be used to determine an additional appropriate minimum
settlement amount for the economic benefit during the period
of time the source operated without BACT.
Section 173 and Offset Policy Sources
On December 1 , 1980, a plywood manufacturing company
began operation of a modification at its plant which is
located in a nonattainment area for particulate matter. The
modification is subject to Section 173 review permitting arid,
in fact, the source has obtained a valid Section 173 permit
from the State. The permit specifies 1) that the applicant
has demonstrated that all other major stationary sources
owned or operated by the applicant in the State are in
compliance with the Act, 2) what constitutes required LAER,
and 3) what offsets (internal) 5 ! would be required to be
obtained prior to start-up or commencement of operation.
In March of 1981 , the Regional Office learned that the
source did not install controls on a certain piece of process
equipment and therefore did not actually “obtain” the offsets
as specified in the State permit. On April 1, 1981 , the
5/ In light of the Supreme Court decision in Chevron U.S.A.
I c. v. NRDC , ___ U.S. ___ , 104 S. Ct. 2778 (1984) , a state may
choose to adopt a plant-wide definition of source in nonattain-
ment areas. In such instances, sources obtaining internal
offsets may be exempt from nonattainment new source review
requirements.

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—9--
Region issued an NOV for failure to comply with the terms of
the permit by not obtaining offsets prior to start-up. At an
April 15, 1981 , conference between EPA and the source, the
source agreed to meet the terms of its permit and to certify
compliance. On May 15, 1981 , the offsets were finally obtained.
In this example, the violation covered by the matrix is
the source’s failure to obtain the required offsets (because
the source had obtained the requisite permit and its only
violation of the permit consisted of a failure to obtain the
offsets by start-up). The failure to obtain offsets, however,
is covered by both the Permit Penalty Policy (for the failure
of the new source to obtain offsets prior to start-up) and
the general stationary source civil penalty policy (for the
failure of the existing source to comply with the offset
requirement).
The calculation of the minimum settlement figure in this
case under the Permit Penalty Policy begins with an assessment
of the total cost of air pollution control equipment at the
modification. For purposes of this example, assume LAER
costs $110,000. Since the source operated from start-up on
December 1, 1980, until May 15, 1981, without the necessary
offsets, the period of violation was six months. Under these
circumstances, the matrix yields a penalty figure of $84,000.
(6 x $14,000 = $84,000).
As in the PSD example above, this matrix figure is a
minimum settlement number. EPA is free to negotiate for a
higher amount. There is also the opportunity for a reduction
of this figure based upon the surrounding circumstances in
accordance with the adjustment procedures outlined in the
general policy.
The minimum settlement figure for the violation subject
to the general stationary source civil penalty policy is then
calculated. Because the offsets were obtained from a facility
owned by the new source, a total minimum civil penalty settle-
ment figure is calculated by adding the amounts obtained
under the Permit Penalty Policy and the general stationary
source civil penalty policy.

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
s, / WAS)4INGTON. D.C. 20460
4 L p t
DEC 1 8 1918
OFFICE OF D FORCEMtNT
H E !ORANDUM
SUBJECT: Interpretation of “Constructed” as it Applies to
Activities Undertaken Prior to Issuance of a PSD
Permit
FRO 1: Director
Division of Stationary Source Enforcement
TO: Enforcement Division Directors
Regions I—X
Air and Hazardous Materials Division Directors
Regions I—X
The issue addressed in this memorandum is where on the
continuu’n from planning to operati’on of a major emitting
facility does a coi1 pany or other entity violate the PSD
regulations if it has not yet received a PSD permit. (It is
assumed here that such a permit is required by the PSD
regulations.) This question has arisen several times in
particular cases arid general guidance now appears necessary.
The statute arid regulations do not answer this
question. The Clean Air Act states simply that, “(n3o T ajo
emitting facility... may be constructed... unless—Cl)
a permit has been issued... [ and various other conditions
have been satisfied).” Section 165(a). Similarly, the PSD
regulations state that, “ [ n]o najor stationary source or
major modification shall be constructed unless the [ various
PSD require.nents are met).” 40 CFR 52.21(i) (1), 43 FR
26406. “Construction” is defined in the regulations as
“fabrication, erection, installation, or modification of a
source.” 40 CFR 52.21(b) (7), 43 FR 26404. This accords
with Section 169(2) (C) of the Act, but it does not explicitly
ans%zer the question po3ed above. To our knowledge, the
legislarive history of the Act does not treat this issue.
Thus the ter n “constructed” seems to be open to further
interpretation by EPA.

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—2—
Co ’ience,nent of construction is quite specifically
defined in both Section 169(2) (A) of the Clean ir Act and
40 CFR 52.21(b) (a), 43 FR 26404. Howeier, that definition
is for the purpose of deciding the threshold question of the
applicability of the PSD regulations. Therefore, we are not
bound by it in deciding what activities may be conducted
• prior to receiving a necessary PSD permit.
DSSE’s response to date has been that the permitting
authority should make the deteri inatjon on a case—by—case
basis, after considering all the facts of the individual
situation. For example, we said that site clearing might be
inappropriate for a source proposed to be constructed in a
heavily forested Class I area, but permissible for a source
proposed to be constructed on a sunk—strewn 13t- in a heavily
industrialized Class III area.
After consulting with the Office of General Counsel, we
are now arnending this policy in order to minilrlize the
administrative burden on the permitting authority and to
adopt what we believe now to be the better legal interpreta-
tion. The new policy is that certain limited activities will
be allowed in all cases. These allowable activities are
planning, ordering of equipment an materials, site—clearing,
grading, and on—site storage of equipment and materials.
Any activities undertaken prior to issuance of a PSD permit
would, of course, be solely at the owner’s or operator’s
risk. That is, even if considerable expense were incurred
in site—clearing and purchasing equipment, for example,
there would be no guarantee that a PSC permit would ‘be
forthcoming.
All on—site activities of a permanent nature aimed at
completing a PSD source for which a permit has yet to be
obtained are prohibited under all circumstances, These
prohibited activities include installation of building
supports and foundations, paving, laying of underground pipe
work, construction of permanent storage structures, and
activities of a similar nature.
The new policy has several advantages. First, it will
be easy to administer, since case—by—case determinations
will not be required. Ioreover, it assures national consis-
tency and permits no abuse of discretion. Finally, it
appears to be the most legally correct position. The policy
.has the undeniable disadvantage of allowing a good deal of

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—3—
activity at sites which i ay be highly susceptible to envi-
ronmental impact. We feel that on balance, however, the
advantages of the policy outweigh the disadvantage.
If you have any questions, please feel free to contact
David Rochlin of my staff, at 755—2542.
Edward E. Reict ,
cc: Peter Wyckoff, 0CC
Richard Rhoad.s, OAQPS
Linda Murphy, Region I
Ken Eng, Region II
Jin Sydnor, Region III
Winston Smith, Region IV
Steve Rothblatt, Region V
Don Harvey, Region VI
Bob Chanslor, Region VII
Dave Joseph, Region VIII
Bill Wick, Region IX
Mike Johnston, Region X

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APPENDIX II
Vinyl Chloride Civil Penalty Policy
The following factors should be used to determine a
penalty settlement figure:*
— economic savings of noncompliance (if a specific
piece of equipment can be identified as a necessary
remedial measure) (economic benefit component)
— seriousness of violation (gravity component)
— degree of willfulness or negligence
— degree of cooperation or non—cooperation
— history of non—compliance
— ability to pay
— other unique factors.
The chart below is to be used to assess the gravity
component of the penalty:
Relief Valve Discharges, Manual Vent Valve Discharges, Violations
of 10 ppm Standards
Emissions
Pounds of VC released Penalty
0—1000 S 1000
1—2000 2000
2—3000 3000
3—4000 4000
4—5000 5000
5—7500 10,000
7500—10 ,000 15,000
10—12,500 20,000
over 12,500 25,000
Failure to Report
Start with:
Size of Release not Reported (ibs) Penalty
0—100 2000
100—500 5000
500—1000 10,000
1000—2000 20,000
over 2000 25,000
*All factors except the gravity component should be treated
in accordance with the general Clean Air Act Stationary Source
Civil Penalty Policy.

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—2—
Graduated scale for late reporting (if not in response to
direct request from State or EPA) — 10—day discharge reports
Within 2 months (from discharge) 25% of penalty
2—4 months 50% “
4—6 months 75% “
over 6 months 100% “ ti
Stripping Violations and Reactor Opening Loss Violations
Stripping
Magnitude of Violation Penalty
Suspension/Latex Dispersion
400—500 ppm 2000—2500 ppm S 1000
500—600 2500—3000 2000
600—700 3000—3500 3000
700—800 3500—4000 4000
800—900 4000—4500 5000
900—1200 4500—6t 00 10000
1200—1400 6000—7000 15000
1400—1600 7000—8000 20000
over 1600 over 8000 25000
Reactor Opening Loss
Penalty = $1000/violation (for each reactor)
Failure to Measure
Penalty = Maximum penalty amount for each type of violation
= $25000 (stripping)
= Sl000 (reactor opening loss)
Failure to Submit Complete Semiannual Report
Penalty = $25000
Graduated scale for late reporting (if not in response
to direct request from State or EPA)
Within 2 months 25% of penalty
2—4 months 50% ii ii
4—6 months 75% “
Over 6 months 100% “ II
Generally, the vinyl chloride penalty policy should be adhered
to (with relatively minor adjustments) for the majority of
cases. When a source would be subject to an unusually large
penalty (e.g., $500,000 for a single type of violation),
Regional Offices will have greater discretion in setting
penalties provided that the figure is at least $500,000.

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—3—
EPA realizes that in certain cases, it is highly unlikely
that the Agency will be able to recover the full amount of the
calculated penalty in litigation. This may be due to appli-
cable precedent, competing public interest considerations,
or the specific facts, equities, or evidentiary issues
pertaining to a particular case. In such a situation it is
unrealistic to expect EPA to obtain a penalty settlement which
it could not achieve through litigation. The case development
team must consult with EPA Headquarters and receive the approval
of the Associate Enforcement Counsel for Air in order to propose
settling for less than the minimum penalty amount from the
matrix because of litigation practicalities.

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APPENDIX III
Asbestos Demolition and Renovation Civil Penalty Policy
The Clean Air Act Stationary Source Civil Penalty Policy
provides guidance for determining the amount of civil penalties
EPA will seek in pre—trial settlement of enforcement actions
under Title I of the Act. Due to certain unique aspects of
asbestos demolition and renovation cases, separate guidance
is provided here for determining the gravity and economic
benefit components of the penalty. All other aspects of the
penalty determination, including flexibility adjustment
factors, should be treated in accordance with the general
penalty policy.
If the Region is referring a civil action under Section
113(b) against a demolition or renovation source, it should
recommend a civil penalty settlement amount. Consistent with
the general penalty policy, the Region should determine a
“preliminary deterrence amount” by assessing an economic
benefit component and a gravity component. This amount may
then be adjusted upward or downward by consideration of other
factors, such as degree of willfulness or negligence, history
of noncompliance, and ability to pay’. Since there is a wide
variation in the size of demolition contractors, ability to
pay may be an important adjustment factor in some instances.
The “gravity” component should account for factors such
as the environmental harm resulting from the violation, the
importance of the requirement to the regulatory scheme, and
the size of the violator. Since asbestos is a hazardous air
pollutant, the gravity factor associated with substantive
violations (i.e., failure to adhere to work practices or to
prevent visible emissions from waste disposal) should be
high. Also, since notification is essential to Agency
enforcement, a notification violation should also warrant a
high gravity component.
Whenever a source fails to give notice prior to commencing
demolition or renovation, the Agency should seek a S25,000
penalty unless clear mitigating factors make a reduction appro-
priate. As a legal matter, the Agency can arguably seek up to
$25,000 per day for each day that the source fails to remedy
the notification violation. As a matter of policy, however,
an initial notification violation will be considered a single
day of violation, but the full $25,000 should be sought except
in compelling circumstances which favor the source’s equitable
position. In case of recurring violations or ones involving
very large projects, the Region should consider seeking greater
penalties. Where notification is made late, the Region should

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—2—
seek a lesser penalty, reflecting to a large extent the degree
to which the Region’s ability to evaluate substantive compli-
ance has been ham 1 ered. For example, if notification is late
but still precedes commencement of the project, a small
penalty is warranted. If notification is given such that the
Region cannot inspect the project until it is half complete,
a 512,500 penalt ’ may be appropriate. We consider notifica-
tion violations, particularly failure to notify, sufficiently
serious by itself to justify a civil referral if the Region
chooses to proceed with that option.
For substantive violations, the Region should attempt to
estimate the economic benefit derived by the source in failing
to comply with the regulations. One way to estimate the
benefit is to compare the dollar amount of the demolition or
renovation contract to an estimate of the cost to do the job
in compliance with the regulations. Headquarters will inves-
tigate whether a consultant or in—house expert can provide
general guidance concerning the determination of economic
savings. The gravity component for substantive violations
shoulc:1 be related to the amount of asbestos to be removed in
the project, since that is a rough measure ot the potential
environmental harm associated with the activity. At a minimum,
tor a source which barely meets the threshold for applicability
of substantive requirements (the amount of friable asbestos
materials is at least 80 linear meters on pipes or at least
15 square meters on other facility components), the penalty
should be 55,000. The penalty should be an additional $5,000
tor each additional 80 linear meters or 15 square meters of
friable asbestos material, up to a statutory maximum of
525,000 for each day of documented violation of work practice
or “no visible emissions” requirements.
To illustrate application of these principles, assume
that a source is removing approximately 45 square meters of
rriable asbestos material. The source failed to notify EPA
prior to commencing the demolition. An EPA inspector went to
the site on one day and observed that the source was failing
to wet the friable asbestos during stripping. EPA estimates
that the incremental cost of properly removing and stripping
the asbestos would be about $20 per square meter. The “pre-
liminary deterrence amount” associated with this hypothetical
situation would be 525,000 for failure to notify, $15,000 for
the gravity component assigned to the substantive violation,
anu 5900 tor the economic benefit component, or a total of
$40,900. This figure could then be adjusted upward or downward
it appropriate in accordance with the adjustment factors in
the general policy.

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—3—
EPA realizes that in certain cases, it is highly unlikely
that the Agency will be able to recover the full amount of
the calculated penalty in litigation. This may be due to
applicable precedent, competing public interest considerations,
or the specific facts, equities, or evidentiary issues
pertaining to a particular case. In such a situation it is
unrealistic to expect EPA to obtain a penalty settlement which
it could not achieve through litigation. The case development
team must consult with EPA Headquarters and receive the approval
of the Associate Enforcement Counsel for Air in order to
propose settling for less than the minimum penalty amount
from this policy because of litigation practicalities.

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APPENDIX IV
CLEAN AIR ACT PENALTY POLICY AS APPLIED TO
STATIONARY SOURCES OF VOLATILE ORGANIC COMPOUNDS
WHERE REFORMULATION TO LOW SOLVENT TECHNOLOGY
IS THE APPLICABLE METHOD OF COMPLIANCE
Introduc tion
This addendum provides guidance for calculating the civil
penalties EPA will require in pre-trial settlement of district
court enforcement actions, pursuant to Title I of the Clean Air
Act (CAA), against sources of volatile organic compounds (VOC’s)
in violation of State Implementation Plan emission limitations,
where low solvent technology (LST) is an acceptable control
strategy for achieving compliance. If compliance using LST is
the control strategy chosen by the source and if it can be im-
plemented expeditiously, the penalty analysis methodology set
forth in this appendix must be used. If compliance using LST
is not the compliance strategy chosen by the source, or if LST
cannot be accomplished expeditiously or is not available, the
penalty must be calculated according to the general Clean Air
Act Stationary Source Civil Penalty Policy , (hereinafter CAA
Penalty Policy ) , based on the costs of add-on controls.
A separate policy for arriving at a penalty figure in VOC
cases where LST is an acceptable control strategy is necessary
because penalties calculated pursuant to the general CM Penalty
Policy in such instances are insufficient to deter violations.’!
The general CM Penalty Policy focuses upon recapturing
1/ Penalties must be high enough to have the desired specific
and general deterrent effects. They must also be, to the
extent possible, objective in order to ensure fairness. The
general CM Penalty Policy , relying on the cost of pollution
control equipment, does not provide such penalties in the case
of VOC sources using LST. Indeed VOC penalties have been much
smaller than the penalties collected in other CM cases. A
sample of VOC sources, with total sales in the $10,000,000
range, have had civil penalties ranging from $2,000 to $45,000.
By comparison, a company cited for TSP violations, with sales
in 1983 of $4,656,000, will be asked to pay a minimum of $75,000
in penalties.

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the economic savings of non-compliance based upon the typically
substantial capital expenditures and operation and maintenance
costs of the necessary pollution control equipment. The capital
costs of implementing LST are by comparison relatively small, and
in many cases LST actually results in a net economic savings. 2 !
This guidance, therefore, sets forth an objective methodology
for arriving at a substantial cash penalty figure in cases not
requiring the expenses associated with add-on technology. Specif-
ically, in all VOC cases including those where a source may
choose to come into compliance using LST as a control option,
Regions must base their pre-negotiation penalty calculations for
the Economic Benefit Component on the cost of add-on controls.
Once negotiations begin, the Region may recalculate the penalty
figure using the alternative methodology in this Appendix where
applicable based on information to be supplied by the source.
The Economic Benefit Component will be re-calculated based on the
cost of LST as a control option. An additional penalty component
(hereinafter referred to as the Production Component) must there-
after be calculated by multiplying the dollar amount of sales
on the non-complying lines as reported’by the source, by the
average return on sales for the industry, to be supplied by
NEIC. The average return on sales is the norm for the industry
for net profits after taxes divided by total sales. Industry-
specific average return on sales multipliers are available from
the Information Services Office at NEIC in Denver, FTS 776-5124
(contact Charlene Swibas). NEIC will require the following
information from the Region to calculate the average return on
sales multiplier for an individual source: (1) type of VOC
source, (2) total assets or number of employees, and (3) dollar
amount of sales produced on the non-complying lines by year. In
this regard, EPA should advise sources that it is to their benefit
2/ Although substantial capital expenditures are required for VOC
sources using add-on technology to come into compliance, sour-
ces having the option of using low solvent or water-based techno-
logy derive economic savings by coming into compliance.
For example, reformulation to LST generally involves only minor
mechanical and process modifications costing less than $10,000.
( See note 4 infra.) These small outlays are recaptured by subse-
quent cost savings. For example, water-based coatings are usually
less expensive. Similarly, high solid emulsion-LSTs, although
perhaps more expensive on a volume basis, are more efficient
when properly applied, requiring fewer coatings. Reduced VOC
emissions result in further indirect savings in the form of
lower employee health problems and absenteism, reduction in the
cost and amount of OSHA-required ventilation, and lower fire insu-
rance rates. Finally, the vast majority of VOC sources having
LST as a readily available option for compliance make only small
investments in R&D, expenditures which are, moreover, fully tax
deductible.
-2-

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to supply EPA with detailed information such as a plant specific
breakdown of assets rather than company-wide reports, and line-
by-line sales figures. This will help ensure that the penalty
is limited to sales from production on their non-complying
lines as opposed to their total sales. When verifiable line-by-
line production information is not available, the Regions must
base their estimates on sources’ total sales as reported in
company books and annual reports. In addition, the Production
Component figure may be adjusted to reflect the source’s actual
return on sales where this figure can be established from reliable
information.
The total of the Production and Economic Benefit Components
should be compared to the penalty that would have been imposed were
the source coming into compliance using add-on controls. In no
event should the total of the Economic Benefit and Production
Components exceed the penalty amount based solely on the cost of
add-on controls.
This policy may be used in all situations involving LST as an
acceptable compliance option, including those where the source is
granted an expeditious schedule to continue development of LST,
but may ultimately have to comply using add-on controls. In
those situations where the source will comply through a combination
of LST and add-on controls, the penalty may be adjusted in accordance
with this Appendix only to the extent the two compliance options
and the source’s financial data are segregable on a line-by-line
basis.
No other adjustments to the Economic Benefit and Production
Components may be made other than as contemplated in the general
CAA Penalty Policy . These adjustments are described in
Section II.A.3. of the general policy. In addition, in all cases
the Gravity Component should be estimated in accordance with the
general CAA Penalty Policy . This policy is based upon the principles
established by the CA.A Penalty Policy and general Agency policies.
The Production Component formula produces penalties which
automatically account for the size of the source and correlate
with the emissions volume from non-complying lines. Moreover,
attaching a source’s after tax net profits on noncomplying produc-
tion helps to ensure a meaningful penalty without impinging on
employee salaries, necessary operating costs, or tax deductions
for good faith pollution control expenditures such as R & D on
LST.
—3—

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Removing the profitability of non-complying production is
particularly appropriate in cases where LST is an acceptable con-
trol strategy due to the ease with which many such sources could
have come into compliance, as well as the competitive advantage
some VOC sources obtain from non-compliance. For example, many
paper coating concerns have continued to use high solvent coatings
due to the versatility such solutions afford in meeting customer
preferences such as color brightness. Such VOC sources are,
thus, probably able to capture a larger share of the market due
to their noncompliance. Similarly, metal furniture coaters have
had high solid etnulsion-LSTs available for many years. Many
sources have, however, delayed the minimal costs and process
changes necessary to come into compliance, perhaps enabling these
businesses, in the short run, to offer their products at a slightly
reduced price. 3 /
What follows is the specific methodology to be applied in
calculating civil penalty settlement amounts in actions against
sources of VOC where LST is an acceptable control strategy.
3/ Use of high solid emulsion-LST requires installation of a
$5-7,000 emulsion heater, retraining of employess to apply
the thicker emulsion, and installation of a larger or more effi-
cient metal washing system to prevent pitting. As is noted
above, however, these costs are in the long run recaptured by
the economic savings associated with high solid ernulsion-LST.
( See note 2 supra.)
-4-

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Alternative Methodology for Calculating VOC Penalties Where LST
is the Applicable Method of Compliance
ECONOMIC BENEFIT COMPONENT*
÷
PRODUCTION COMPONENT
total sales from production on non-complying lines
x industry norm return on sales
Compare this figure to the penalty based on the
cost of add-on controls as the control option. Use the
lower of the two figures.
+
Settlement Adjustments to Production Component**
substitute the source’s actual return on sales
for the average industry return on sales
+
GRAVITY COMPONENT*
+
Settlement Adjustments to Gravity Component*
ADJUSTED MINIMUM PENALTY FIGURE
* See, Clean Air Act Civil Penalt r Policy for the procedures to
fallow in making these calculations. Note, however, that
the CAA Penalty Policy permits Regions in their discretion not
to seek to recover the Benefit Component when it is likely to be
less than $5,000. This Appendix contemplates including the
Economic Benefit Component along with the Production Component
even where the Economic Benefit is estimated to be less than
$5,000. If the combination of both the Economic Benefit and
Production Components is estimated to be less than $5,000, it is
not necessary for the case development team to include either
one in the minimum settlement penalty amount.
** Note that the considerations described in Section II.A.3 of
the general policy may also be applied in adjusting the Production
Component, as well as the Economic Benefit Component.
—5—

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APPENDIX V
Air Civil Penalty Worksheet
A. Benefit Component:
(enter from computer calculation)
B. Gravity Component:
1. Actual or possible harm
a. Amount above standard:
b. Toxicity of pollutant: ________
c. Sensitivity of environment
d. Length of time of violation ________
2. Importance to regulatory scheme:
3. Size of violator:
Total gravity component:
Preliminary deterrence amount:
(sum of benefit and gravity compo ents)
C. Flexibility—Adjustment Factors:
1. Degree of willfulness or negligence:
total gravity component x any mitigation
or augmentation percentage
2. Degree of cooperation/noncooperation:
total gravity component x any mitigation
or augmentation percentage
3. History of noncompliance:
total gravity component x any
augmentation percentage
4. Ability to pay:
any mitigation amount

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—2—
5. Other unique factors:
total gravity component x any mitigation
or augmentation percentage
All augmentation (+) and mitigation (—)
amounts added: (if negative, cannot
exceed total gravity component)
D. Initial Minimum Settlement Amount
Preliminary Deterrence Amount + or —
Sum of Flexibility Adjustment Factors:

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, 0 C 20460
AUG 15 2001
C ri ;)
OFFICE OF
ENFORCEMENT AND
COMPLIANCE ASSURANCE
SUBJECT:
FROM:
-TO:
Combined Enfor ment Policy for CAA Section 112(r) Risk Management
Pro 9J
Eric V. Schaeffe to
Office of Regu1ato 1 Enforcement
Regional Counsels, Regions I - X
Regional Enforcement Coordinators, Regions I - X
Regional Enforcement Division Directors, Regions I, H, IV, VI, \TflJ
Over the past year, the Office of Regulatory Enforcement and Regional offices have
developed the attached Combined Enforcement Policy for violations of the Clean Air Act
Section 1 12(r)(7) Risk Management Program. The attached Combined Enforcement Policy
combines two policies, a penalty policy and enforcement response policy, that will govern civil
enforcement actions for violations of the risk management program as found in 40 CFR Part 68.
This Combined Enforcement Policy enumerates enforcement responses for violations of Part 68,
provides a basis to calculate penalty figures for internal negotiation for civil judicial enforcement
actions and for pleading administrative cases alleging violations of Part 68. The Combined
Enforcement Policy is effective immediately, but may be evaluated after one year to determine if
any modifications are needed.
Thank you for your assistance in developing the Combined Enforcement Policy. If you
have any questions please contact Leslie Oif in the RCRA Enforcement Division
at (202) 564-2291.
Attachment
Internet Address (URL) • http Ih ww epa gov
d with Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer)

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cc: Deborah Brown, Region I
John Higgins, Region H
Dave Wright, Region ifi
Beverly Spagg, Region IV
Mark Horwitz, Region V
Charlie Gazda, Region VI
Joanne Heiman, Region VII
Doug Skie, Region VIII
Michael Feeley, Region IX
Chris Field, Region X
Jim Makris, CEPPO
Bruce Gelber, DOJ

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Combined Enforcement Policy
for Section 112(r) of the Clean Air Act
Office of Regulatory Enforcement
Office of Enforcement and Compliance
Assurance
U.S. Environmental Protection Agency

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Combined Enforcement Policy
for § 112(r) of the Clean Air Act
Office of Enforcement and Compliance Assurance
United States Environmental Protection Agency
Introduction 2
Summary of Statutory Requirements & Authorities 2
Statutory Requirements 2
Statutory Penalty Authorities 3
Enforcement Response Policy 3
Non-penalty Actions (Warning Letter, Finding of Violation, Preliminary Determination,
or Administrative Order 3
Penalty Actions 4
Criminal Sanctions 5
Penalty Policy
Determination of Economic Benefit 5
Determination of the Gravity Component 7
Settlement of Penalties 16
Documentation of Penalty Settlement Amount 17
Other Policies 17
Conclusion 17

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2
I Introduction
In recent years, the large number of catastrophic accidents in the chemical industry (and
associated facilities) due to the use, handling, production, or storage of highly toxic or flammable
chemicals has drawn attention to the safety of these facilities. In an effort to eliminate or
mitigate the consequences of such accidents to public health and the environment, on
November 15, 1990, Congress passed the Clean Air Act (CAA) Amendments of 1990. The
amendments added section 112(r) to the CAA which required the Environmental Protection
Agency (“EPA” or “Agency”) to promulgate programs and regulations preventing accidental
hazardous chemical releases from stationary sources and minimizing the consequences of the
accidental releases that do occur. In accordance with CAA § I 12(r)(7) EPA promulgated the
Risk Management Program (“Program”). This program established regulations codified at
40 C.F.R. Part 68 that are designed to prevent accidental releases of certain regulated substances
from stationary sources.
This document is composed of two policies that govern civil enforcement actions for
Program violations: the Enforcement Response Policy and the Penalty Policy. EPA is issuing
these policies, jointly referred to as the Combined Enforcement Policy (CEP), to ensure that
enforcement actions for the CAA § 112(r) are legally justifiable, uniform and consistent; that the
enforcement response is appropriate for the violations committed; and that stationary sources will
be deterred from committing such violations in the future. This CEP may be used to develop
internal negotiation penalty figures for civil judicial enforcement actions and for pleading
administrative cases. This CEP does not constitute a statement of EPA policy regarding the
prosecution of criminal violations of CAA.
These policies are effective upon issuance and will assist staff in determining the
appropriate response to Program violations, in calculating proposed penalties for civil
administrative actions, and for settling actions concerning CAA § I 12(r)(7). The policies and
procedures set forth herein are intended solely for the guidance of employees of the EPA. They
are not intended to, nor do they, constitute a rulemaking by the EPA. They may not be relied
upon to create a right or a benefit, substantive or procedural, enforceable at law or in equity, by
any person. EPA reserves the right to act at variance with these policies and to change them at
any time without public notice.
II Summary of Statutory Requirements & Authorities
A. Statutory Requirements
The CAA § I 12(r)(7) authorizes the Administrator to promulgate release prevention,
detection, and correction requirements which may include monitoring, record keeping, reporting,
training, vapor recovery, secondary containment, and other design, equipment, work practice, and
operational requirements. These regulations are codified in 40 C.F.R. Part 68, the Chemical
Accident Prevention Provisions. The regulations require covered stationary sources to submit a

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3
Risk Management Plan (RMP) that contains three main elements: a hazard assessment, a
prevention program, and an emergency response program.
B. Statutory Penalty Authorities
The CAA § 113(d) authorizes the Administrator to issue an administrative order
assessing an administrative penalty of not more than $25,000 per day for each violation of
CAA § 112(r) and the implementing regulations found in 40 C.F.R. Part 68. As a result of the
Debt Collection Improvement Act of 1996, and the subsequent Civil Monetary Penalty Inflation
Adjustment Rule, 40 C.F.R. Part 19, violations of CAA § 112(r) which occur after January 30,
1997, are subject to the new statutory maximum civil penalty of $27,500 per day for each
violation. The CAA § 113 authorizes EPA to assess civil administrative penalties and
establishes penalty factors. These penalty factors are addressed in Section IV of this document
and in the CAA Stationary Source Civil Penalty Policy. Both documents take these factors into
consideration in the assessment of any penalty.
III Enforcement Response Policy
When an owner or operatori is found to be in violation of Program requirements, EPA
should take an appropriate course of action. An appropriate response will achieve a timely return
to compliance and serve as a deterrent to future non-compliance by eliminating any economic
benefit received by the violator. All enforcement responses will follow the established
guidelines for timely and appropriate action. 2 An appropriate enforcement response may include
non-penalty actions (warning letter, finding of violation or preliminary determination), penalty
actions (civil administrative action, civil judicial referrals) and criminal sanctions.
A. Non-penalty Actions (Warning Letter, Finding of Violation, Preliminary
Determination, or Administrative Order)
A warning letter is a document EPA may issue in the event that problems are found with
a source’s RMP. No additional penalties are attached to a warning letter. Warning letters may be
an appropriate response for easily correctable deficiencies which do not warrant further action.
In the event that a source does not address the deficiencies noted in a warning letter, EPA will
generally pursue an elevated enforcement response.
The term “owner or operator” means any person who owns, leases, operates, controls, or supervises a
stationary source, including the technician who operates a stationary source, as well as the individual, corporation,
partnership, association, State, municipality, political subdivision of a State, and any Agency, department, or
instrumentality of the United States who employs the technician or employee.
2 See The Timely and Appropriate (T&A) Enforcement Response To High Priority Violations (HPVs),
March 16, 1999, http //www epa gov/oecalore/aed/comp/bcomp/hpvguide pdf This guidance document establishes
time periods for addressing violations of certain requirements of the Clean Air Act. For Part 68, the requirement to
file an RMP is addressed in this policy

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4
Similarly, Regions may issue a finding of violation (FOV) when any Program violation is
found. FOVs are an appropriate response to violations of a more significant nature but which do
not rise to the level of a penalty action. An FOV may be crafted similarly to the notice of
violation which is required by CAA § 1 13(a)(l) to address state implementation plan violations.
Failure to address deficiencies identified in an FOV should result in a penalty action.
A preliminary determination is issued as a result of an audit conducted pursuant to
40 C.F.R. § 68.220. This provision requires the implementing agency to periodically audit RMPs
in order to review their adequacy and to require necessary revisions. The determination consists
of a written notice detailing any deviations from statutory or regulatory requirements, describing
deficiencies in a source’s RMP and an explanation for the basis of the findings, reflecting, if
applicable, industry standards and guidelines. A preliminary determination should only be issued
to address discrepancies found as a result of a 40 C.F.R. § 68.220 audit. In the event that the
discrepancies uncovered by the audit warrant a more severe enforcement response, Regions may
concurrently or subsequently pursue other enforcement options.
An administrative order (AO) pursuant to CAA § 11 3(a)(3)(B) is a formal action ordering
compliance with the CAA. As with an FOV, an AO cites the relevant statutory or regulatory
requirements not being met. Similarly, failure to address deficiencies identified in an AO will
also result in a penalty action.
EPA’s enforcement response may consist only of a warning letter, preliminary
determination, FOV or AO, or the response may consist of a combination of these documents in
addition to penalty actions. Issuing only a warning letter, preliminary determination, FOV, or
AO is the appropriate enforcement response for easily correctable violations including easily
correctable violations uncovered during an audit pursuant to 40 C.F.R. § 68.220(f)-(h) if it can be
documented that they are likely to have minimal adverse health and safety implications. Owners
or operators of facilities who fail to return to compliance following receipt of an FOV or AO (per
40 C.F.R. § 68.220) should have their violations escalated to civil administrative enforcement
level.
B. Penalty Actions
Penalty actions are appropriate for owners or operators of facilities which have significant
violations of the regulations or of CAA § 11 2(r)(7). Noncompliance that caused actual exposure
or a substantial likelihood of exposure to accidentally released hazardous chemicals is a
significant violation. The actual or substantial likelihood of exposure should be evaluated using
facility-specific environmental and exposure information whenever possible in order to establish
the magnitude of the potential or actual release. This may include evaluating potential exposure
pathways and the mobility and toxicity of the released substance. Finally, the litigation team
should determine whether owners or operators of Program facilities are chronic or recalcitrant
violators.

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5
If the nature of the violation lends itself to be classified as a significant violation then it
should be addressed through a penalty action. This response should initiate a civil judicial or
administrative process which results in an enforceable agreement or order. The formal
enforcement response should ensure that the non-compliant owner or operator of the facility
expeditiously returns the facility to full compliance.
The Administrator of EPA, under CAA § 113(b), may refer civil judicial cases to the
United States Department of Justice (DOJ) for assessment and/or collection of the penalty in the
appropriate U.S. District Court. EPA may also refer to DOJ an action for permanent or
temporary injunction. In addition, EPA must refer to DOJ cases which result in penalties greater
than $220,000 or for which the first alleged date of violation occurred more than 12 months prior
to initiation of the administrative action. EPA may, however, seek a waiver from DOJ to address
these cases administratively.
C. Criminal Sanctions
This policy does not address criminal sanctions EPA may impose. Matters involving
possible criminal behavior by individuals or organizations should be referred to the Regional
Criminal Enforcement Counsel.
IV Penalty Policy
The factors relevant to setting an appropriate penalty appear in CAA § 113(e). These
factors are: the size of the business; the economic impact of the penalty on the business; the
violator’s full compliance history and good faith efforts to comply; the duration of the violation
as established by any credible evidence; payment by the violator of penalties previously assessed
for the same violation, the economic benefit of noncompliance; the seriousness of the violation;
and other factors as justice may require. The purposes of this Penalty Policy are to ensure that:
(I) civil penalties are assessed in accordance with the CAA and in a fair and consistent manner;
(2) penalties are appropriate for the gravity of the violation; (3) economic incentives for non-
compliance are eliminated; (4) penalties are sufficient to deter persons from committing
violations; (5) and compliance is expeditiously achieved and maintained.
Penalties assessed are composed of two components: (1) the amount equal to the
economic benefit of the noncompliance, and (2) an amount reflective of the gravity of the
violation. These components should be calculated using the most aggressive assumptions
supportable (i.e., assumptions most protective of the environment). This policy allows a penalty
to be mitigated or aggravated, depending on the circumstances. However, pleading must always
include the full economic benefit component. As a general rule, the gravity component of the
penalty should not be mitigated, although this policy does allow for mitigation as discussed
below.
The proposed penalty amount is the result of the following formula:

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6
Penalty [ Economic Benefit ± adjustment factors] + [ Gravity Component (senousness of violation + duration
of violation + slzc of violator) ± adjustment factors]
A. Determination of Economic Benefit
1. Factors for Determining the Economic Benefit
The preliminary economic benefit component is based on the economic savings from
delayed and/or avoided costs required to comply with the regulations and any benefits other than
cost savings. The economic benefit of delayed compliance and from avoided costs should
generally be computed using the methodology given in “Detailed Calculations,” Appendix A of
the BEN User’s Manual , September 1999 . (See also “Calculation of the Economic Benefit of
Noncompliance in EPA’s Civil Penalty Enforcement Cases,” 64 FR 32,948 (June 18, 1999) and
“A Framework for Statute-Specific Approaches to Penalty Assessments,” #GM-22 (1984), U.s.
EPA General Enforcement Policy Compendium.) The benefit other than cost savings should be
computed when the BEN methodology either cannot compute or will fail to capture the actual
economic benefit of noncompliance. In those instances, it will be appropriate for EPA to include
in its penalty analysis a calculation of the economic benefit in a maimer other than that provided
for in the BEN methodology.
(a) Delayed Cost Benefit
An economic benefit derived from noncompliance is the ability to delay expenditures
necessary to achieve compliance. For example, a owner or operator who fails to implement
necessary changes to process instrumentation and equipment (e.g., monitoring systems such as
high temperature, pressure, level, and flow indicators and alarms) which are necessary to safely
operate the facility has achieved an economic benefit by avoiding the costs associated with those
changes. The BEN methodology can be used to calculate this figure.
(b) Avoided Cost Benefit
Another type of economic benefit derived from noncompliance is the ability to avoid
entirely expenditures necessary to achieve compliance. An owner or operator avoids costs if he
or she fails to, for example: train operators on new instrumentation and equipment; update and
change piping and instrumentation diagrams; or revise operating procedures. Additionally, an
owner or operator of a facility, who fails to establish or follow precautionary procedures (e.g., a
pre start-up review [ 40 C.F.R. § 68.77]), as required by regulations has achieved the avoided cost
benefit of less down time and greater production.
http://www.epa.gov/oecalmodels/ben.pdf
http //frwebgate access gpo gov/cgi-binlgetdoc.cgi?dbname= 1 999_register&docidfrl 8jn99- 1 8] pdf

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7
2. Adjustment to the Economic Benefit Component
Normally, general EPA policy is not to adjust for or mitigate the economic benefit
component of noncompliance. However, three general circumstances exist where EPA has
discretion to mitigate the economic benefit component. The following are the limited
circumstances in which EPA can, if determined to be appropriate, mitigate the economic benefit
component of the penalty:
• Economic benefit component involves an insignificant amount;
• Compelling public concerns exist; and/or
• Litigation Risks.
The Stationary Source Civil Penalty Policy indicates that the litigation team may elect not
to assess an economic benefit component in enforcement actions where the violator’s economic
benefit is less than $5,000 (see p. 7 of the general policy). Regions are, however, encouraged to
assess an economic benefit component if the circumstances warrant unless the benefit is less than
$500.
B. Determination of the Gravity Component
1. Factors for Determining the Gravity Component
The statutory considerations relevant in determining the gravity component are the size
of the business, the economic impact of the penalty on the business, the violator’s full compliance
history and good faith efforts to comply, the duration of the violation, payment by the violator of
penalties previously assessed for the same violation, and the seriousness of the violation. Three
of the factors (seriousness of the violation, duration of the violation, and size of the violator) are
incorporated into Tables I, II, and III. The other statutory factors are discussed below in section
IV.B.2., Adjustments To The Gravity Component.
(a) Seriousness of the Violation
The seriousness of a violation depends in part on the risk posed to the surrounding
population and the environment as a result of the violation. Risk is a function of the extent of the
deviations from the requirements, the likelihood of a release, and the sensitivity of the
environment around the facility. The extent of the deviations depends on the degree and nature
of the violations of the relevant requirements and their cumulative effect. The greater the extent
of deviation the more likely that the owner or operator of the facility has compromised the safe
operation of the facility and the safe management of the chemicals. The sensitivity of the
environment can be characterized by considering the potential impact of the violation on the
surrounding population and the environment from a worst-case release at the facility.
In determining the seriousness component of a penalty, Regions should first determine an
initial figure from the following table. Within each range, Regions should choose an appropriate

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8
Major
Not less than
$25,001
$60,000
$25,001
$30,000
$15,001
Moderate
$50,000
$12,001
$25,000
s12;oo l
$15,000
$6,001
Minor
$20,000
$5,000
$12,000
$5,000
$6,000
$2,000
To determine the extent of deviation from a particular Program requirement use the
following guidelines:
Major: Cumulatively, the violations essentially undermine the ability of the facility to prevent or
respond to releases through the development and implementation of the RMP.
Moderate: Cumulatively, the violations have a significant effect on the ability of the facility to
prevent or respond to releases through the development and implementation of the RMP.
Minor: Cumulatively, the violations have only a minor effect on the ability of the facility to
prevent or respond to releases through the development and implementation of the RMP.
Regions should understand that the statutory maximum for penalties under the Clean Air
Act is $27,500 per day per violation. Some of the penalty amounts in the matrix above exceed
the statutory maximum. Penalties in excess of the statutory maximum may only be used if the
Agency alleges that more than one violation has occurred.
Regions should consider the circumstances surrounding the violation(s) to arrive at a
specific penalty within the range for a given cell. Some examples of relevant factors are:
5 The facilities subject to part 68 faIl into one of three categories: Program 1 .2 or 3. The program levels
are delmed in the RM? regulations are a based upon the level of risk posed by processes subject to the risk
management program.
figure, considering the type of the facility and the extent of deviation only, since other
considerations are incorporated in later steps.
Table I
Penalty Assessment Matrix
for violations which occurred after June 22, 1999
_____________ Type of Facility ____________
___________ Program 3 Program 2 Program 1
Extent of Deviation

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9
• Amount of pollutant
• Toxicity of the pollutant — Violations involving toxic pollutants regulated by a National
Emissions Standard for Hazardous Air Pollutants (NESI-IAP) or listed under Section
1 l2(b)(l) of the Act are more serious and should result in larger penalties.
• The potential for emergency personnel, the community, and the environment, to be
exposed to hazards;
• The relative proximity of the surrounding population;
• The extent of community evacuation required or potentially required;
• The effect noncompliance has on the community’s ability to plan for chemical
emergencies; and,
• Any actual problems that first responders and emergency managers encountered because
of the facility’s violation.
After choosing an appropriate number from Table 1, Regions should adjust the number to
reflect the actual or potential environmental consequences of the actual or worst-case release. In
order to do this, choose the most serious applicable category:
Major Impact: A release would likely have a significant effect on human health, a sensitive
ecosystem, or wildlife (especially endangered species). Upward adjustment of 25% to 50%.
Moderate Impact: A release would likely have an effect on the surrounding, non-sensitive
ecosystem. Upward adjustment of up to 25%.
Minor Impact: No adjustment.
(b) Duration of Violation
For the purposes of determining the duration of a violation, violations should be assumed
to be continuous from the first provable date of the violation until the source demonstrates
compliance. 6 Table 11 is to be used in determining the duration component of a penalty.
Table II
Duration of a Violation Component for
Violations Which Occurred after June 22, 1999
Months Penalty
0-12 $500/month
13-24 $1,000/month
25-36 $1,500/month
37 + $2,000/month
6 In accordance with the October 25, 1991, CAA Stationary Source Civil Penalty Policy which intended
“continuous” to apply to monitoring, maintenance, and implementing violations.

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10
For example, if a violation is found to have a duration of 30 months, the duration
component would be:
$6,000 ($500/month for the first 12 months) + $12,000 ($1,000/month for the second 12 months)
+ $9,000 ($1,500/month for the final 6 months) = $27,000
(c) Size of Violator
EPA will scale the penalty to the size of the violator. 7 The size of the violator is
determined from an individual’s or company’s net worth. In the case of a company with more
than one facility, the size of the violator is determined based on the company’s entire operation,
not just the violating facility. With regard to parent and subsidiary corporations, generally only
the size of the entity sued should be considered. If the Region is unable to determine a
company’s net worth, it may determine the size of the violator based on gross revenues from all
revenue sources during the prior calendar year. If the revenue data for the previous year appears
to be unrepresentative of the general performance of the business or the income of the individual,
an average of the gross revenues for the prior three years may be used. The case development
team should consider reducing the size of violator component if the initial penalty calculation
could lead to an inequitable result of a large penalty due to the size of violator component and a
comparatively small gravity component. Where the size of the violator figure (as determined in
Table III) represents over 50% of the total penalty, the litigation team may, but need not, reduce
the size of the violator figure to an amount equal to the rest of the penalty without the size of
violator figure included. For example, suppose an initial penalty of $100,000, with $70,000 for
size of violator and $30,000 for the remaining penalty elements. Since the $70,000 size of
violator component is more than 50% of the $100,000 total penalty, the size of violator
component can be reduced to $30,000 -- an amount equal to the rest of penalty ($30,000). With
this reduction, the final resulting penalty will be $60,000, and the size of violator component will
be 50% of this amount. For further information on the size of violator component, see the Clean
Air Act Stationary Source Civil Penalty Policy dated October 25, 1991.
Table III
Size of Violator Component
Net Worth $70,000,001 —$100,000,000
Under $1,000,000 Over $100,000,001
$1,000,000 —$5,000,000
$5,000,001 — $20,000,000
$20,000,001 — $40,000,000
$40,000,001 — $70,000,000
7 Regional personnel should also consult the Small Busmess Policy and the Policy on Incentives for Self-
Policing Discovery, Disclosure, Correction and Prevention of Violations, if applicable, when assessing the size of
violator component in penalty calculations.

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11
Size Adjustment
$0
$10,000
$20,000
$35,000
$50,000
$70,000
$70,000 + $25,000 for every additional
$30,000,000
2. Adjustments To The Gravity Component
The purpose of this section is to establish adjustment factors which promote flexibility
while maintaining national consistency. Those factors are: degree of willfulness or negligence,
degree of cooperation, history of noncompliance, and environmental damage. These adjustment
factors apply only to the gravity component and not to the economic benefit component.
Violators bear the burden of justifying mitigation adjustments they propose. The gravity
component may be mitigated only for degree of cooperation as specified in the CA.A Stationary
Source Civil Penalty Policy. The gravity component may be aggravated by as much as 100% for
the other factors discussed below: degree of willfulness or negligence, history of noncompliance,
and environmental damage.
In order to promote equity, the system for penalty assessment must have enough
flexibility to account for the unique facts of each case, yet must produce results consistent
enough to ensure that similarly-situated violators are treated similarly. This is accomplished by
identifying the legitimate differences between cases and adjusting the gravity component in light
of those facts. The application of these adjustments to the gravity component prior to the
commencement of negotiation yields the initial minimum settlement amount. During the course
of negotiation, the litigation team may further adjust this figure based on new information
learned during negotiations and discovery to yield the adjusted minimum settlement amount.
The litigation team is required to base any adjustment of the gravity component on the
factors mentioned and to carefully document the reasons justifying its application in the
particular case. The entire litigation team must agree to any adjustments to the preliminary
deterrence amount. Members of the litigation team are responsible for ensuring their
management also agrees with any adjustments to the penalty proposed by the litigation team.
(a) Degree of Willfulness or Negligence
This factor may only be used to raise the penalty. The CAA is a strict liability statute for
civil actions, so that willfulness, or lack thereof, is irrelevant to the determination of legal
liability. However, some adjustment may be made for a violator’s degree of culpability. The

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12
violator’s willfulness and/or negligence are relevant in assessing an appropriate penalty. The four
principal criteria for assessing culpability are:
• The violator’s familiarity with the particular requirement;
• The degree of the violator’s control over the events constituting the violation;
• The ability to foresee the events constituting the violation; and
• The level of sophistication within the industry in dealing with compliance issues or the
availability of appropriate control technology to mitigate the violation.
To arrive at an appropriate adjustment, Regions should consider the degree to which the
respondent should have been able to prevent the violation, considering the sophistication of the
respondent and the resources and information available to it, and any history of regulatory staff
explaining to the respondent its legal obligations or notifying the respondent of violations.
Depending upon the degree of culpability, the litigation team may increase the amount from
Table 1 by as much as 75%.
In cases where the violator knowingly committed an act that he or she knew to be a
violation, potential criminal action may be warranted and should be considered.
(b) Degree of Cooperation
The degree of cooperation of the violator in remedying the violation is an appropriate
factor to consider in adjusting the penalty. In some cases, this factor may justify aggravation of
the gravity component because the source is not making efforts to come into compliance and is
negotiating with the Agency in bad faith or refusing to negotiate. This factor may justify
mitigation of the gravity component in the circumstances specified below where the violator
institutes comprehensive corrective action after discovery of the violation. Prompt correction of
violations will be encouraged if the violator clearly sees that it will be financially
disadvantageous to litigate without remedying noncompliance. EPA expects all sources in
violation to come into compliance expeditiously and to negotiate in good faith. Therefore,
mitigation based on this factor is limited to no more than 30% of the gravity component and is
allowed only in the following three situations:
1. Prompt reporting of noncompliance — The gravity component may be mitigated when a source
promptly reports its noncompliance to EPA or the state or local air pollution control agency
where there is no legal obligation to do so.
2. Prompt correction of noncompliance — The gravity component may also be mitigated where a
source makes extraordinary efforts to avoid violating an imminent requirement or to come into
compliance after learning of a violation. Such efforts may include paying for extra work shifts or
a premium on a contract to have control equipment installed sooner or shutting down the facility
until it is operating in compliance.

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13
3. Cooperation during pre-fihing investigation — Some mitigation may also be appropriate in
instances where the defendant is cooperative during EPA’s pre-filing investigation of the source’s
compliance status or a particular incident.
(c) History of Noncompliance
The penalty amounts reflected in the gravity component penalty matrix apply to first time
violators. Where a violator has demonstrated a history of prior violations, the penalty may need
to be adjusted upward. The need for such an upward adjustment derives from the violator not
having been sufficiently motivated to comply by the penalty assessed for the previous violation
or not ensuring continuous compliance after a non-penalty informal enforcement response.
Another reason for penalizing repeat violators more severely than first time violators is the
increased resources that are spent on the same violator. Therefore, this factor may be used only
to raise a penalty.
For the purposes of determining the history of noncompliance, the litigation team should
check for and consider prior violations of CAA § I 12(r)(7) and/or prior violations of any of the
provisions of 40 C.F.R. Part 68 that have occurred. In addition, the litigation team is encouraged
to check for and consider prior violations under all environmental statues enforced by EPA in
determining the amount of the adjustment to be made under this factor. The following criteria
apply in evaluating history of prior violations:
(I) Regardless of whether an owner or operator admits to the violation, evidence of a prior
violation may be: a consent agreement and final order/consent order, a federal court judgment, a
default judgment, a consent decree, an FOV, an AO, or a warning letter. A prior violation refers
collectively to all the violations which may have been described in any of the documents listed
above.
(2) Companies with multiple facilities, or wholly or partly owned subsidiaries with a parent
corporation, may be considered as one when determining history of prior violations, however,
two facilities may not necessarily affect each other’s violation history if they are in substantially
different lines of business, or if they are substantially independent of one another in their
management and in the functioning of their Boards of Directors.
In determining the size of the adjustment, the litigation team should consider the
following points: (1) similarity of the violation in question to prior violations; (2) time elapsed
since the prior violation; (3) the number of prior violations; (4) violator’s response to prior
violations with regard to correcting the previous violation and attempts to avoid future violations;
and (5) the extent to which the gravity component was already increased to reflect the repeated
violation.
A history of noncompliance may reflect an owner’s or operator’s indifference to protection
of the environment. Therefore, upward adjustments to the base penalty are warranted and may be

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14
calculated in the following manner: for second or subsequent violations of CAA § 112(r) or 40
C.F.R. Part 68, the gravity based component may be increased up to 100% provided that the final
penalty does not exceed the $27,500 per day per violation statutory maximum.
(d) Environmental Damage
The gravity component already reflects the extent or potential extent of environmental
damage, taking into account such factors as the toxicity of the pollutant, the sensitivity of the
environment, the length of time the violation continues, and the degree to which the source has
deviated from a requirement. However, there may be cases where the actual environmental
damage caused by the violation is so severe that the gravity component alone is not a sufficient
deterrent, for example, in the case of a significant release of a toxic air pollutant in a populated
area. In these cases, aggravation of the gravity component may be warranted.
(e) Other Adjustment Factors
In settling cases brought under this Penalty Policy, EPA may consider other adjustment
factors (besides the gravity adjustment factors above) when establishing an appropriate penalty.
Statutory adjustment factors that may apply are the economic impact of the penalty on the
business and payments made by the violator of penalties previously assessed for the same
violation. In addition, EPA may consider litigation risks and supplemental environmental
projects in any potential adjustments.
(i) Economic Impact of the Penalty (Ability to Pay)
The Agency will generally not request penalties that are clearly beyond the means of the
violator. Therefore, EPA should consider the ability to pay a penalty in adjusting the preliminary
figure, both gravity component and economic benefit component, using any economic
information available at the time 8 . At the same time, it is important that the regulated community
not see the violation of environmental requirements as a way of aiding a financially-troubled
business. EPA reserves the option, in appropriate circumstances, of seeking a penalty that might
contribute to a company going out of business. For example, it is unlikely that EPA would
reduce a penalty where a facility refuses to correct a serious violation. The same could be said
for a violator with a long history of previous violations. That long history would demonstrate
that less severe measures are ineffective.
Enforcement personnel should conduct a preliminary inquiry into the financial status of
the party against whom a proposed penalty is being assessed. This inquiry may include a review
of publicly available information through services such as Dun & Bradstreet. Should the
violator raise the Ability to Pay issue after commencement of negotiations, the litigation team
8 See “Interim Guidance on Administrative and Civil Judicial Enforcement Following Recent Amendments
to the Equal Access to Justice Act,” 5/28/96.

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15
should assess the factor only if the violator provides the necessary financial information to
evaluate the claim. If the violator fails to provide sufficient information, then the litigation team
should rely on the information it has in adjusting the penalty or disregard this factor entirely (as
appropriate). The violator’s ability to pay should be determined according to the December 16,
1986, Guidance on Determining a Violator’s Ability to Pay a Civil Penalty , codified as PT 2-1 in
the General Enforcement Policy Compendium (previously codified as GM-56). The relevant
computer models used for determining the ability to pay are ABEL 9 , used for businesses, and
INDIPAY’°, used for individuals. In the case of municipalities or other local governmental
bodies, the litigation team should assess the ability to pay using the MUNIPAY model)’
Regions may also consider obtaining the services of a financial analyst for assistance in
determining a violator’s ability to pay.
If an alleged violator raises the ability to pay argument as a defense in its answer, or in the
course of settlement negotiations, EPA should request the following types of information:
• 3 -5 years of signed tax returns plus schedules
• Balance sheets
• Income statements
• Statements of changes in financial position
• Statement of operations
• Retained earnings statements
• Loan applications, financing agreements, security agreements, business plans, financial
projections
• Annual and quarterly reports to shareholders and the SEC, including 10K reports
• If a closely held corporation, the W-2 for the corporate officers
The burden of proof in ability to pay situations varies depending upon the forum in which
the Agency finds itself. In judicial cases, the burden of proof is on the violator, in
Administrative Procedures Act (APA) type hearings, the burden is on the Agency.’ 2 In informal
administrative hearings, the burden is arguably on the violator. While discovery is readily
available in federal district court, it is much less available in APA hearings. It is essential that
ABEL is found at http //www epa.gov/oeca/models/abel.html.
10 ThIDIPAY is found at http.//www.epa gov/oecalmodels/indipay.html.
“MIJNIPAY is found at http //www.epa.gov/oecaJmodels/munipay.html.
12 In re New Waterbury. Ltd 5 E.A D 529 (1994). In this case, the Environmental Appeals Board (EAB)
included a detailed discussion regarding the burdens on the parties to present evidence of the Respondent’s ability
to pay a penalty. The EAB refined this analysis in In re: Robert Wallin (slip opinion, May 30, 2001) by requiring
the Respondent to present specific inability-to-pay mformation once EPA has satisfied its initial burden of
producing general financial information regarding Respondent’s financial status (e.g., its sales volume or apparent
solvency) sufficient to support the inference that the penalty assessment need not be reduced.

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16
the litigation team make the presiding officer aware of what financial records the Agency needs
in order to perform a professional ability to pay analysis early in the proceedings.’ 3
Finally, in the event that the violator is a small business, Regions should refer to and
apply all relevant factors given in EPA’s Small Business Compliance Policy’ 4 . For reference, the
Small Business Compliance Policy contains the following definition of a small business:
A small business is a person, corporation, partnership, or other
entity that employs 100 or fewer individuals (across all facilities
and operations owned by the small business). Entities, as defined
under SBREFA, also include small governments and small
organizations. Facilities that are operated by municipalities or
other local governments may be covered under the Small
Communities Policy (see http ://www.epa.gov/oeca/scpolcy .html).
Facilities that are disclosing violations involving multiple facilities
should refer to the sections on multiple facilities in the Policy on
Incentives for Self-Policing: Discovery, Disclosure, Correction and
Prevention of Violations (the Audit Policy) of April 11, 2000.
(ii) Litigation Risks
Both the economic benefit and gravity components of the penalty may be mitigated in
appropriate circumstances based on the risk of litigation. The following list briefly describes
some of the types of litigation risks which should be considered in each case:
• Indications by the Court that it is prepared to recommend a penalty below the minimum
settlement amount;
• Credibility of government witnesses;
• Specific facts, equities, evidentiary issues or other legal problems of a particular case; and
• Adverse legal precedent affirmatively argued by the violator which is indistinguishable
from the current enforcement action.
Cases raising legal issues of first impression (i.e., new statutory laws or new regulations,
such as the Program regulations) should be carefully chosen to present the issues fairly in a
factual context EPA is prepared to litigate. Consequently, in such cases, penalties should
generally not be mitigated due to the risk the court may rule against EPA. Mitigation based on
litigation risk should be carefully documented and explained in particular detail in each case.
For further guidance in this area, see Appendix A of the ability to pay case memorandum, available
from the Multimedia Enforcement Division of the Office of Regulatory Enforcement, (202) 564-2230
‘ 4 The Small Business Policy can be found at http //www e a gov/oeca/sbcp2000 pdf and applies to
violations which have been disclosed and corrected the by facility.

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17
(iii) Offsetting Penalties Paid to State and Local Governments
or Citizen Groups for the Same Violations
Under Section 1 13(e)(l), the court in a civil judicial action or the Administrator in a civil
administrative action must consider in assessing a penalty “payment by the violator of penalties
previously assessed for the same violation.” While EPA will not automatically subtract any
penalty amount paid by a source to a State or local agency in an enforcement action or to a
citizen group in a citizen suit for the same violation that is the basis for EPA’s enforcement
action, the litigation team may do so if circumstances suggest that it is appropriate. The litigation
team should consider primarily whether the remaining penalty is a sufficient deterrent.
(iv) Supplemental Environmental Projects (SEPs)
To further the goals of the EPA to protect and enhance public health and the environment,
certain environmentally beneficial projects, or Supplemental Environmental Projects (SEPs),
may be included in the settlement.’ 5 SEPs are environmentally beneficial projects which an
owner or operator agrees to undertake in settlement of an environmental enforcement action, but
which the violator is not otherwise legally required to perform. In return, some percentage of the
cost of the SEP is considered as a factor in establishing the final penalty to be paid by the owner
or operator.
EPA has broad discretion to settle cases with appropriate penalties. Evidence of a
violator’s commitment and ability to perform a SEP is a relevant factor for EPA to consider in
establishing an appropriate settlement penalty. The commitment to perform a SEP may indicate
an owner’s or operator’s new or extraordinary efforts to be a good environmental citizen. While
SEPs may not be appropriate in settlement of all cases, they are an important part of EPA’s
enforcement program. EPA’s litigation team has the sole discretion to include a SEP as part of a
settlement of an enforcement action. EPA should ensure that the inclusion of a SEP in the
settlement is consistent with EPA’s SEP Policy in effect at the time of the settlement. While the
cost of a SEP may be used to mitigate a penalty for the purposes of settlement, it is not to be used
as an adjustment factor in litigation.
C. Settlement of Penalties
This Penalty Policy is immediately applicable and should be used to calculate penalties
sought in all Program administrative complaints or accepted in settlement of both administrative
and judicial civil enforcement actions brought under the statute after the date of the policy,
regardless of the date of the violation. To the maximum extent practicable, the policy shall also
apply to the settlement of administrative and judicial enforcement actions instituted prior to but
not yet resolved as of the date the policy is issued.
15 EPA ’s May 1, 1998. Supplemental Environmental Projects Policy can be found at
http://www.epa.gov/oeca/sep/sepfinal.html.

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18
D. Documentation of Penalty Settlement Amount
Until settlement discussions or the pre-hearing information exchanges are held with the
owner or operator, mitigating and equitable factors and overall strength of EPA ’s enforcement
case may be difficult to assess. Accordingly, preparation of a penalty calculation worksheet for
purposes of establishing EPA’s settlement position on penalty amount may not be feasible prior
to the time that negotiations with the violator commence. Once the violator has presented the
Region with its best arguments relative to penalty mitigation, the Region may, at its discretion,
complete a penalty calculation worksheet to establish its initial bottom line settlement position.
However, at a minimum, prior to final approval of any settlement, whether administrative or
judicial, enforcement personnel should complete a final worksheet and narrative explanation
which provides the rationale for the final settlement amount to be included in the case file for
internal management use and oversight purposes only. As noted above, enforcement personnel
may, in arriving at a penalty settlement amount, deviate significantly from the penalty amount
sought in an administrative complaint, provided such discretion is exercised in accordance with
the provisions of this policy.
V Other Policies
Regions should consult the following policies, some of which have already been
mentioned in this CEP, as appropriate. Also, distributing a SBREFA information sheet is
required at the time of the first enforcement action (which includes an inspection):
• CAA Stationary Civil Penalty Policy, October 25, 1991.
• Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of
Violations (Audit Policy)’ 6 , effective May 11, 2000.
• Small Business Compliance Policy
• Policy on Flexible State Enforcement Responses to Small Community Violations,
November 199517
• Supplemental Environmental Projects Policy
• Timely and Appropriate (T&A) Enforcement Response To High Priority Violations
(HPVs)
• Equal Access to Justice Act
Note that both the audit and the small business policies control where facilities meet the
conditions of those policies.
VI Conclusion
16 Found at http.Ilwww.epa gov/oecalfinalpolstate.pdf
‘ http.//www.epa gov/oeca/scpolicy html

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19
Establishing fair, consistent, and sensible guidelines for addressing violators is central to
the credibility of the EPA’s enforcement effort of the CAA § 112(r) and to the success of
achieving the goal of equitable treatment. This policy establishes several mechanisms to
promote consistency and flexibility when determining significant violations of the regulations.
Also, the systematic methods for calculating the economic benefit and gravity component base
penalties, which add up to the preliminary deterrence amount, both have the consistency and
flexibility to address any issue fairly (tailored to the specific circumstances of the violation).
Furthermore, this policy sets out guidance on uniform approaches for applying adjustment factors
to arrive at an initial amount after negotiations have begun.
In order to ensure that EPA promotes consistency, it is essential that each case file contain
a complete description of how each penalty was calculated as required by the August 9, 1990,
Guidance on Documenting Penalty Calculations and Justification in EPA Enforcement Actions’ 8 .
This description should cover how the preliminary deterrence amount was calculated and any
adjustments made to the preliminary deterrence amount. Furthermore, it should explain the facts
and reasons which support such adjustments.
8 Imp //www.epa gov/oecalore/rcralcmp/080990.pdf

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MEMORANDUM
DATE: October 31, 2001
SUBJECT. Procedures for Tracking Information Requests and Notices of Violation
FROM: Enc V Schaeffer, Director
Office of Regulatory Enforcement
TO: Addressees
This memorandum summarizes new procedures for tracking outgoing information
requests and notices of violation issued under the Clean Air Act, the Clean Water Act, and the
Resource Conservation and Recovery Act. It reflects earlier direction given at the national
enforcement managers meeting in July18 of this year, the senior managers enforcement call on
September 18, and the August 29, 2001 Bruce Buckheit memorandum circulating OECA’s
response to earlier requests for Senator Inhofe for an inventory of Section 114 information
requests. This guidance should improve the accuracy and speed of our responses to any future
Congressional inquiries, but also should help managers and staff better track the use of
information request authority and violation notices.
1. Indexing of Information Requests and Notices of Violation
Effective October 1, 2001, all new information requests and Notices of Violation should
be indexed. The index system should be capable of generating a list of outgoing requests
or notices by statute and requirement (e.g., NSR, NSPS, SSO, NPDES), date, company
name, and Status of the response. The index should be accessible to both managers and
staff within the region. Region 6 has circulated an excellent example, prepared on Lotus
Notes, to regions for review. For more information, please call Kara Mckoy-Belle. The
Integrated Compliance Information System (ICIS) should ultimately make tracking this
information easier, but do not plan on waiting until it is fully operational. When ICIS is
fully operational and meets our needs, we will provide you with instructions for ensuring a
smooth transition to the new system.
1. Document Storage and Retrieval
In order to make the information retrieval process universal, and to facilitate computerized
searching, we recommend scanning and storing your files using the PDF format (If you
keep them as WP files, the signature and date information is lost, and there is no guarantee
that the file copy is the same as the one that actually went out. PDF files are preferable)
The PDF files should be catalogued in a uniform pattern. The file information available
for use in the PDF format includes the following fields (found by going to File: Document
Info General in Adobe Acrobat)

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Title: The title field should include the lead program office (e g., Region 5 or
AED), and indicate whether it is part of an initiative (e g , Wood Products
14’s)
Subject: Identify the company or individual receiving the document
Author: Name the person who ultimately signs the letter/I 14
request/NOV/Complaint. Remember to follow the delegation rules, e g.,
114 requests may only be signed by division directors.
Keywords: Key in the statute first (i e.: CAA), specific requirement (i.e.: PSD), the
type of document (i.e: 114, NOV), then the Issuing Office (i e Region 1),
then the company name (i.e.: Pacific Gas & Electric or PG&E), then
whatever other terms are pertinent and would assist a search (i.e.. NSR,
PSD, routine maintenance, purchase orders, requisitions, emissions data,
e Ec) You should include a keyword indicating whether the response has
been received
It is our understanding that the Region 6 system can accommodate embedded PDF files in
a Lotus Notes-friendly framework This is probably the best system to use, though the
scanning and stoi age can take place without the framework We are aware that you may
face some costs (scanner, CD-burner, Adobe software) setting up this system, but these
should be small and readily accommodated in your iT budget.
Please keep in mind that ORE and Regions should already be consulting on specific
information requests and NOV’s for nationally significant and multistate cases ORE will
be following the same procedures to keep track of any such documents generated by
headquarters, to facilitate information sharing with regions.
2. Data Submittal
Since ICIS will be coming online eventually, we are not requesting that such information
be submitted to OECA on a regular basis. It should be reasonably accessible, however, so
that it can be retrieved by staff researching a particular company, or to respond to
Congressional requests or FOJA’s.
3. Master Files
Each program or division should maintain a master file of its information requests and
Notices of Violation. For example, the water enforcement branch should have signed
copies of 308 requests consolidated in one filing system. If you can electronically scan
and store signed copies, please do so. That will eliminate the need to create a separate
paper storage system (e.g., the electronic files can serve as your repository) These files
should be readily available to managers and staff for reference, and may be critical to

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preparing future requests that affect the same company. A central file will also make it
much easier to respond to Congressional inquires, as it is incredibly time consuming to try
to pull such data together from individual staff files
4. CAA-Specific Document Handling
You should have copies of all 114 Clean Air Act requests and Notices of Violation issued
since 1998 inde ed and consolidated, as we may receive additional requests from Senator
Inhofe and would like our response to be prompt and accurate. The Buckheit
memorandum of August 29, 2001 provided an index of all energy-sector outgoing 114
requests and NOVs from 1998 to the spring, which should help you in this effort.
If you have not read the response to Senator Inhofe (circulated on August 3, 2001), please
take the time to do so. I have attached it and the appropriate appendices for your
convenience You should observe and follow the distinctions it makes between use of
formal written requests and Inspections to gather information, as these distinctions are
reflected in both the Clean Air Act and in actual practice.
We believe that environmental enforcement in general will remain in the spotlight Not
only Congress, but oversight agencies such as OIG and GAO, as well as interest groups and the
public, continually request these documents. Accordingly, we should be taking the steps noted
above quickly. We recognize this may impose a short-term burden, but expect that it will
ultimately save time responding to inquiries and improve management of information requests and
violation notices If you have any questions, please call Mario Jorquera at AED, who is
coordinating this effort in my behalf His telephone number is (202) 564-1079.
Addressees Regional Enforcement Division Directors
Regional Counsel
Regional Coordinators
Regional Air Division Directors
Regional Water Division Directors
Regional Hazardous Waste Division Directors
Office of Regulatory Enforcement
Sylvia Lowrance, Acting Assistant Administrator, OECA
Michael Stahl, Deputy Assistant Administrator, OECA
Frederick Stiehl, Director, EPTD/OC

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l jOO2I00b
• .Lytl 541
1 :3 3
. O St4
UNITED STA ES ENVIRONMENTAL PROTECTION AGENCY
Oftice o Air Quality Planning and Standards
______ Research Triangle Park. Noth Carolina 2771 1
FEB 1994
SUBJECT: Procedures l or Processing Bump Ups and Extension
Requests for Marginal Ozone Nonattainment Areas
FROM: D. Kent Beriy, Acting Director
Air Quality Management Division (MD—15)
TO: Director, Air, Pesticides and Toxics
Management Division, Regions I and IV
Director, Air and Waste Management Division,
Region II
Director, Air, Radiation and Toxics Division,
Region III
Director, Air and Radiation Division,
Region V
Director, Air, Pesticides and Toxics Division,
Region VI
Director, Air and Toxics Division,
Regions VII, VIII, I X, and X
PURPOSE
This memorandum provides guidance to the Environmental
Protection Agency (EPA) Regional Offices and States on two
important sections of ti e 1990 Clean Air-Act Amendments (Act)
that currently impact marginal ozone nonattairunent areas. The
provisions cover bump ups for failure to attain the national
ambient air quality staniards (NAAQS) and attainment date
extension requests. Additionally, this memorandum clarifies the
impact that bump ups have on ozone rtonattainiuent ru äl transport
areas, and discusses State submittals of air quality data on an
accelerated schedule. FLnally, this memorandum outlines th
steps States need to takE• when requesting volunta bump up or
attainment date extensior s and the process for EPA action on such
requests.
BACl GROUND
Section 181(b) (2) of the Act states that within 6 months
following the applicable attainment date for ozone nonattaininent
areas, the Administrator 3hall determine whether the area
attained the standard by that date. For areas that have not
attained the standard, thE Act states that they shall be
reclassified by operation of law (bumped up) to the higher of:
i. the next higher classification; or

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d .”O . Dl l UO ’+
2
2. the classification associated with the area’s design
value.
The Act requires the Administrator to publish a notice in
the Federal Register identifying the areas that have not attained
the standard no later than 6 months following the attainment
date. Section 181(a) (5) of the Act gives the Administrator the
discretion to grant up to two 1—year extensions of the attainment
dates specified in section 181(a) upon application by any State
if:
1. the State has complied with all requirements and
commitments pertaining to the area in the applicable State
implementation plan (SIP ; and
2. no more than on! measured exceedance of the NAAQS for
ozone has occurred in th? area in the year preceding the
extension year (e.g., in marginal areas no more than one measured
exceedance of the MQS could occur in 1993). This requirement
does not preclude areas that have more than one measured
exceedance of the standard in a year preceding 1993 from
requesting and receiving an extension.
P LICY SUMMARY
This policy statement is directed to bump ups, extension
requests, rural transport: areas (RTA’s), air quality data, and
submittal and processing.
Bump Ups
When making the determination as to whether an area has
attained the NAAQS, EPA will use the most recently available,
quality-assured air quaLity data covering the 3-year period up to
and including the attainment date. For ozone, the average number
of exceedances per year shall be used to determine whether the
area has attained. For marginal ozone nonattainment areas, this
means that the air quality data for the period 1991 to 1993 will
be used to determine whether the area attained by November 15,
1993.
Extension Requests
When requesting an extension, States should consider the
consequences of eventually not attaining the NAAQS. Although
areas can request two i—year extensions, those that ultimately
fail to attain the NAAQS will be bumped up to at least a moderate
classification by operation of law upon a determination of
nonattainment. Areas that are bumped up will be subject to the
SIP requirements applicable to the new classification (see
subpart 2 of the Act). Section 182(i) of the Act states that the
attainment dates for r c1assified areas cannot be adjusted. For

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u ,ug, jo .i:’ 41 (i EI’A-UL(JN} -Co) I JOO4/OO6
3
moderate areas, the attainment date specified in table 1 of
section 181 is November 15, 1996. Consequently, areas that are
bumped up will be under very tight timeframes to implement the
new SIP requirements, in addition to achieving the reductions to
meet the new attainment dat e. If a newly classified moderate
area does not attain the N AQS by November 15, 1996, it could
then be bumped up to a serious or severe classification, which
would impose even more stringent requirements for the area to
meet.
The EPA, therefore, encourages any State that believes it
has an area that will be wiable to attain by its applicable
deadline to voluntarily request bump up early to maximize the
available time for implementing the requirements of the next
higher nonattaininent level. Early bump up will help areas avoid
sanctions and/or Federal implementation plans that could result
from failure to meet SIP submittal requirements.
Thus, marginal areas that request extensions under section
18 1(a) (5) should document that they have initiated rule
development activities in order to meet the Act’s requirements
associated with the new classification. The following are
examples of such activities, but States should not necessarily
limit themselves to these:
1. Documentation that the State has planned or begun the
necessary monitoring activities to develop information for the
modeling analysis that will be required for the new
classification.
2. For certain control measures such as
inspection/maintenance, dc’cumentatjon that the State has examined
its legislative authority and regulatory procedures to determine
whether or not it can quic:kly adopt and implement the emissions
controls needed to meet the new attainment date.
3. A plan to meet the SIP subrnittals and attainment date
required by the higher c1 issification.
The EPA is interpreting the requirement that the State is
complying with the commitments and requirements in the applicable
implementation plan, as referenced in section 181(a) (5) of the
Act pertaining to extensions, to mean that the State is
implementing the EPA—approved SIP (see section 302(q)]. Thus, in
any request, the States must also certify that they are
implementing the EPA—approved SIP.
Rural Transport Area ;
In the November 6, 1991 designations and classifications
final rule (57 FR 56694), a number of areas were designated rural
transport. Under section 182(h) of the Act, RTA’s are treated as

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t xteiided 1’a
4
meeting section 182 requirements if they make the submissions
required of marginal areas in section 182(a) of the Act. The
provisions for bump ups.in section 181(b) (2) and extension
requests in section 181(a) (5) are applicable to any RTA that
fails to meet its attainment date. Thus, RTA’s that are bumped
up will be subject to the attainment date for the higher
classification, but will be subject only to the SIP submittal
requirements for marginal areas. However, if the characteristics
of an area drastically ch inge 1 the Administrator has the
discretion to revise an area’s treatment as an RTA, and if that
occurs, the area will be E.ubject to the new SIP requirements
associated with that classification.
Air quality Data
States that have marçtinal ozone nonattairunent azeas have
been asked to submit to the EPA Regions their ozone air quality
data on an accelerated time schedule. (Please refer to the
memorandum entitled, “AccE 1erated Reporting of 1993 Ozone
Monitoring Data in Hargina.l Nonattairunent Areas” dated
December 21, 1993 from D. Kent serry and Robert icellam which
describes the requirements for submission of air quality data on
an accelerated schedule.) Early reporting of data will enable
EPA to make attainment anc bump up decisions in a timeframe
consistent with the Act. It will also alert the State and EPA to
the need to begin developing and adopting the additional measures
for the appropriate highet classification.
SUBMITTAL AND PROCESSING
State requests for a 1—year attainment date extension or
voluntary bump up, as appropriate, should be made coinciding with
the submittal of the air qiia.lity data. Requests for extensions
of the attainment date should be submitted as soon as possible in
order to avoict contusion and allow EPA to expeditiously process
the extension requests at the sane time the bump up decisions are
made.
When requesting an extension, the following materials must
be included in the submittal:
1. letter from the Governor or the Governor’s designee
requesting a 1—year extension of the attainment date;
2. certification that only one or fewer measured
exceedances of the ozone standard occurred at any valid site in
the nonattainment area in 1993, supported by the final, complete
quality-assured 1993 ozone monitoring data;
3. certification that the State is implementing the EPA—
approved SIP; and

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- - 4 J UVU/ tJUU
5
4. documentation that the State has initiated rule
development activities associated with the moderate
classification
Upon submittal of these extension requests, the EPA Regional
Office will be responsible for review and evaluation to determine
if all of the elements described above are included. The
Regional Office will also be responsible for making the initial
determination on the extension request.
Bump ups and extension determinations must go through notice
and comment rulemaking, Consequently, bump up decisions and
attainment date extensions will be published in the Federal
T qister . Our intent .is to publish the bump up determinations
and attainment date extension requests in a national notice to be
signed by the Admjnjst -ator and to process it as a direct fina]
rulemaking.
If you have any questions on bump ups or attainment date
extension requests, plI?ase contact either Sharon Reinders
(919/541—5284) or Deni 3e Gerth (919/541—5550) of my staff.
cc: Alan Eckert
Bill Becker

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40

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iD
-ISY1D15 .TMP
<> CAA Admin Assessment of Civil Penalties Against Federal Agencies
ENVIRES REF #: P0258
DOCUMENT: FFEO
DATE ISSUED: 07/16/1997
LAW AND SECTION: CAA
REGULATION:
U S CODE: 42 USC 7401. et seq.
DATE EXPIRED:
REPLACED BY:
TEXT:
-1-
U. S. Department of Justice
Office of Legal Counsel
July 16 1997
MEMORANDUM FOR:
JONATHAN Z. CANNON
GENERAL COUNSEL
ENVIRONMENTAL PROTECTION AGENCY
JUDITH A. MILLER
GENERAL COUNSEL
DEPARTMENT OF DEFENSE
From: Dawn E. Johnsen
Acting Assistant Attorney General
office of Legal Counsel
Re: Administrative Assessment of Civil Penalties
Against Federal Agencies Under the Clean Air Act
You have asked for our opinion resolving a dispute between the
Environmental Protection Agency (“EPA”) and the Department of Defense
(“DoD”) concerning whether the Clean Air Act (“the Act”). 42 u.s.c. DU
7401-7671q (1994), authorizes EPA administratively to assess civil
penalties against federal agencies for violations of the Act or its
implementing regulations, and if so, whether this authority can be
exercised consistent with the Constitution. /1/ Applying the “clear
statement” rule of statutory construction, which is applicable where a
particular interpretation or application of an Act of Congress would
raise separation of powers concerns, we conclude that the Act does
provide EPA such authority. we also conclude that these separation of
powers concerns do not bar EPA’S exercise of this authority because it
can be exercised consistent with the Constitution.
/1/ See Letter for waiter Dellinger, Assistant Attorney
Page 1

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—ISY1D15 .mIP
General, Office of Legal Counsel, from Jonathan Z. Cannon,
Assistant Administrator (General Counsel). EPA (Oct. 3, 1995),
enclosing Memorandum on Assessment of Administrative
Penalties Against Federal Facilities under the Clean
Air Act (Sept. 11, 1995) (“EPA Memorandum”); Letter for
Waiter Dellinger from Judith A. Miller, General counsel, DOD
(Dec. 15, 1995). enclosin9 DOD Response Memorandum:
Assessment of Administrative Penalties against Executive
Branch Agencies under Section 113(d) of the Clean Air Act
(Dec. 13, 1995) (“DOD Response”); Letter for Christopher
Schroeder, Acting Assistant Attorney General, Office of
Legal Counsel, from Jonathan Z. Cannon (Oct. 18, 1996)
enclosing EPA Memorandum in Reply to Department of Defense
Concerning Administrative Assessment of Civil Penalties
Against Federal Facilities Under the Clean Air Act (Sept.
16, 1996) (“EPA Reply” ).
—2—
I.
A.
EPA’s authority to initiate enforcement proceedings under the clean
Air Act is set forth -in section 113 of the Act, entitled “Federal
Enforcement.” 42 U.S.C. II 7413 C 1994). As summarized in section
113(a)(3). /2/ section 113 provides that when EPA finds that “any person
has violated, or is in violation of” the ct or its implementing
regulations, EPA may issue an administrative penalty order or a
compliance order, bring a civil action, or request the Attorney General
to commence a criminal action. The questions presented to us are whether
the Act authorizes EPA to issue an administrative penalty order to a
federal agency under section 113(d). and if so, whether that authority
can be exercised consistent with the Constitution. /3/
/2/ See 42 U.S.C. 0 7413(s)(3) (1994) (where it finds a
violation, EPA may “(A) issue an administrative penalty order
in accordance with subsection Cd) of this section, (B) issue an
order requiring such person to comply with such requirement or
prohibition, (C) bring a civil action in accordance with
subsection (b) of this section or section 7605 of this title,
or CD) request the Attorney General to commence a criminal
action in accordance with subsection Cc) of this section”).
/3/ we intend that our resolution of the questions
concerning section 113(d) will also apply to the comparable
authority, provided to EPA with respect to mobile sources by
sections 205(c)and 211(d)(i) of the Act. 42 U.S.C. 00
7524(c), 7545(d)C1)(1994). See EPA Memorandum at 2-3.
The Act authorizes EPA to issue two kinds of administrative
penalty orders. Section 113(d)(l) authorizes EPA to “issue an
administrative order against any person assessing a civil administrative
penalty of up to $25,000, per day of violation” when EPA “finds that
such person” has violated the Act or its implementing regulations. 42
u.s.c. 0 7413(d)(1) (1994). Such a penalty may be assessed only after
opportunity for a hearing on the record in accordance with the
Administrative Procedure Act (“APA”), 5 U.S.C. IJU 554, 556 (1994). Id.
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—ISY1D15 .TMP
ii 7413(d)(2).
In addition, section 113(d)(3) authorizes EPA to implement a field
citation program under which “persons” who commit minor violations of
the Act or the regulations may receive field citations assessing civil
penalties not to exceed $5,000 per day. 0 7413(d}(3). Field citations
may be issued without a hearing, but persons who have received citations
may request a hearing. “Such hearing shall not be subject to [ the APA],
but shall provide a reasonable opportunity to be heard and to present
evidence.” Id. The Act provides for the two types of administrative
penalty orders to be litigated in the courts in a variety of ways.
Persons against whom either kind of penalty is imposed may seek judicial
review in federal district court, and in any such proceedin 9 the united
States may seek an order requiring that the penalties be paid. Id. 0
7413(d)(4). In addition, if a person fails to pay any penalty after
receiving an order or’ assessment from EPA, “the Administrator shall
request the Attorney General to bring a civil action in an appropriate
district court to enforce the order or to recover the amount ordered or
assessed.” Id. a 7413(d)(5).
—3—
B.
EPA presents a si:raightforward position that section 113(d)
authorizes EPA to assess administrative penalties against federal
agencies, That subsection authorizes EPA to assess penalties against
“persons.” Although the term “person” is not defined in section 113.
which is the Act’s federal enforcement section, the term is defined in
the Act’s general definitions section, section 302(e), which provides
that the term includes “any agency, department, or instrumentality of
the united States and any officer, agent or employee thereof.” 42 u.s.c.
0 7602(e) (1994). EPA concludes that “ [ s]ince federal facilities
expressly fall within the Act’s definition of person. [ section 113(d)]
unambiguously demonstrate [ s] that EPA ha5 authority to issue
administrative penalties against federal facilities.” EPA Memorandum at
3.
DOD argues in response that EPA’s interpretation would raise
significant separation of powers concerns, because it would authorize
civil litigation proceedings between federal agencies, and therefore it
can be adopted only if there is an express statement of congressional
intent to provide such authority that is sufficient to meet the high
standard applied by the courts and this office with respect to statutory
interpretation questions involving separation of powers concerns. /4/
DOD argues that “ [ s]ection 113(d) fails to provide clear and express
authority for EPA to impose administrative penalties against Executive
Branch agencies.” DOD Response at 4. DOD rejects EPA’S argument that the
inclusion of federal agencies in the Act’s general definition of
“person” constitutes “a sufficiently express statement to allow [ EPA] to
exercise enforcement authority against other Executive Branch agencies.”
Id. at 5.
/4/ See DOD Response at 4 (“The assessment of
administrative penalties against Executive Branch agencies b
EPA is based on a statutory scheme that contemplates judicia
intervention into what should be a purely Executive Branch
function, thus raising significant constitutional separation
of powers concerns, warranting the high standard of review,”),
Page 3

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-.ISY1D1S .TMP
citing Memorandum for James S. Gilliland, General Counsel,
Department of Agriculture, from waiter Dellinger, Assistant
Attorney General, Office of Legal counsel. Re: Enforcement.
Proceedings Against Executive Branch Agencies under the Fair
Housing Act (May 17, 1994) (“Fair Homing Act Opinion”).
II.
we agree with DOD that the interpretation of the Clean Air Act
advanced by EPA -- that EPA is authorized to initiate enforcement
proceedings under section 113(d) against federal agencies -- raises
substantial separation of powers concerns, thus warranting application
of the clear statement principle.
In 1994, this Office was asked whether the Department of Housing
and urban Development (“HUD”) has the authority under the Fair Housing
Act to initiate enforcement proceedin9s against other federal agencies.
we concluded that such an interpretation of the Fair Housing Act would
raise substantial separation of powers concerns “relat [ ing] to both the
President’s authority under Article II of the Constitution to supervise
and direct executive
-4-
branch agencies and the Article III limitation that the jurisdiction of
the federal courts extends only to actual cases and controversies.”
Fair Housing Act Opinion, at 6. we stared that “ [ w]ith respect to the
Article iii issue, this Office has consistently said that lawsuits
between two federal agencies are not generally justiciable,” Id.
(quotin9 Constitutionality of Nuclear Regulatory Commission’s
Imposition of civil Penalties on the Air Force, 13 Op. O.L.C. 131, 138
(1989) (“NRC Opinion”)), and that “ [ with respect to Article II. we have
indicated that construing a statute to authorize an executive branch
agency to obtain judicial resolution of a dispute with another executive
branch agency implicates the President’s authority under Article II of
the Constitution to supervise his subordinates and resolve disputes
among them .. . .“ Fair Housing Act Opinion, at 6-7 (quoting Review of
Final Order in Alien Employer Sanctions Cases. 13 Op. O.L.C. 370, 371
(1989)).
we observed in our Fair Housing Act opinion that these separation
of powers Concerns
are the essential backdrop for our analysis of whether the Fair
Housing Act authorizes HUD to initiate enforcement proceedings
against other executive branch agencies. Like the Supreme Court, we
are “loath to conclude that Congress intended to press ahead into
dangerous constitutional thickets in the absence of firm evidence
that it courted those perils.”
Id. at 7 (quoting public Citizen v. Department of Justice., 491 U.S.
440, 466 (1989)). Accordingly. we applied a clear statement rule and
concluded that the statute did not provide HUD this authority:
Applying the standard the Supreme Court has used when a
particular interpretation or application of an Act of Congress
would raise separation of powers or federalism concerns, we
believe that because substantial separation of powers concerns
Page 4

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ISY1D15 .TMP
would be raised by construin9 the Act to authorize HUD to
initiate enforcement proceedings against other executive
branch agencies, we cannot so construe the Act unless it
contains an express statement that Congress intended HUD to
have such authority. Because the Act does not contain such an
express statement, we conclude that it does not grant HUD this
authority.
Id. at 1.
Our insistence in the Fair Housing Act Opinion that the statute
must “contain [ ] an express statement that Congress intended HUD to have
such authority” was consistent with a long line of opinions of the
supreme Court and this Office that require a clear statement of
congressional intent when separation of powers or federalism concerns
would be raised. Many of these opinions are cited in an opinion that we
issued subsequent to the Fair Housing Act Opinion. See Memorandum for
Jack Quinn, Counsel to the President, from waiter Deilinger, Assistant
Attorney General, office of Legal Counsel, Re: Application of 28
—5—
U.S.C. 0 458 to Presidential Appointments of Federal Judges (Dec. 18,
1995) (concluding that 28 U.S.c. Li 458 (1994), which prohibits
appointment or employment of relatives of judges in same court, does not
apply to presidential appointments of judges). we stated in that
opinion that “ [ g]iven the central position that the doctrines of
federalism and separation of powers occupy in the Constitution’s design.
[ the clear statement rule] serves to assure [ ] that the le9isiature has
in fact faced, and intended to bring into issue, the critical matters
of the balance of power between the three branches of the federal
government, in the context of separation of powers, and between the
federal and state governments, in the context of federalism.” Id. at 4
(quoting Gre ory v. Ashcroft, 501 U.S. 452,461 (1991)). Sea also Will v.
Michigan Dep t of State Police, 491 U.S. 58, 65 (1989): United States v.
Bass, 404 U.S. 336, 349 (1971).
III.
Based on the foregoing discussion, we must find a clear statement
of con9ressional intent before we can conclude that the Clean Air Act
authorizes EPA to initiate enforcement proceedings against other
executive branch agencies. As discussed below, we believe that the
statutory text provides a very stron 9 basis for finding a clear
statement of such intent and that this conclusion is fully supported by
the legislative history of the Act, particularly the 1977 amendment of
the definition of “person” to include federal agencies.
A straightforward review of the relevant provisions of the Clean
Air Act’s statutory text supports EPA’S position that the statute gives
EPA authority to assess civil penalties against federal agencies
administratively. EPA’s authority under section 113(d) is available with
respect to “persons” who violate the Act. /5/ The term “person” is
defined in section 302(e): “when used in [ the clean Air Act] . . . [ the
term “person” includes an individual , corporation, partnership,
association, state, municipality, political subdivision of a State, and
any agency, department, or instrumentality of the united States and any
officer, agent, or employee thereof.” 42 U.S.C. 11 7602(e) (1994.)
(emphasis added).
Page 5

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-ISY1D15 . IMP
/5/ Section t 113(d)(l) provides for assessment of civil
penalties a9ainst “persons”: ‘The Administrator may issue an
administrative order against any person .... “ 42 U.S.C. El
7413(d)(l) (1994). Section 113(d)(3) achieves the same result,
but uses indirect language: “The Administrator may implement...
& field citation program . . . [ under] which field citations.
may be issued by officers or employees designated by the
Administrator, Any person to whom a field citation is assessed
may . . . elect to pay the penalty assessment or to request a
hearing on the Field citation.” Id. U 7413(d)(3). The plain
language of these provisions refutes DOD’s position that this
language “cannot fairly be read to constitute an affirmative
grant of authority to issue a field citation against any
person.’” DOD Response at 5.
EPA rests its argument on the plain meaning of these two
provisions. EPA does so with good justification, because read together
sections 113(d) and 302(e) expressly provide that EPA may issue
administrative penalty assessments against federal agencies, we have
also reviewed the evolution of the relevant provisions of the Clean Air
Act as reflected by various amendments to the Act over the years. As
discussed below, that history
-6-
fully supports the conclusion that congress contemplated EPA enforcement
against other federal agencies.
The administrative enforcement provisions set forth in section
113(d) were enacted as part of the Clean Air Act Amendments of 1990
(“the 1990 Amendments”). Pub. L. No. 101-549. 0 701, 104 Stat. 2399,
2677-70. we have reviewed the legislative history of the 1990 Amendments
and have found no discussion of the application of those provisions to
federal agencies. we have not limited our legislative history review to
the 1990 Amendments, however, because the administrative enforcement
authorities provided by those amendments merely supplemented the
enforcement authorities EPA already had with respect to “persons” under
the other provisions of section 113. Thus, Congress’s intent in
providing EPA those other authorities is controlling.
EPA’S other enforcement authorities under section t 13 originated
with the clean Air Act Amendments of 1970 (“the 1970 Amendments ), Pub.
L. No. 91-604, 0 4(a), 84. Stat, 1676, 1686-87. AS with the current
version of section 113, the 1970 version authorized federal enforcement
against “persons.” However, at that time the Act’s definition of
“person” did not include agencies of the federal government. /6/ The
1970 Amendments also revised section 118 of the Act to make federal
agencies subject to the substantive requirements of the Act: “ [ Federal
agencies] shall comply with Federal, State, interstate, and local
requirements respecting control and abatement of air pollution to the
same extent that any person is subject to such requirements.” Id. 0 5,
84 Star. at 1689. /7/ Thus, the 1970 version of section 118 referred
only to federal agencies complying with substantive requirements: it did
not contain any language subjecting federal agencies to enforcement
authority.
/6/ “Person” was limited to “an individual,
page 6

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- .ISY1D15 .TMP
corporation, partnership, association, State, municipality,
and political subdivision of a State.” Pub. L. No. 88-506. 0
9(e), 77 Stat. 392, 400 (1903).
/7/ The previous version of section 118, enacted in 1959,
merely requested federal agencies to “cooperate” with air
pollution enforcement control agencies. See Act of Sept. 22,
1959 C “the 1959 Amendments”). Pub, L. No, 86-365, 0 2, 73
stat. 646 (“It is hereby declared to be the intent of the
Congress that any Federal department or agency . . . shall, to
the extent practicable and consistent with the interests of the
United States and within any available appropriations,
cooperate with the Department of Health, Education, and
welfare, and with any interstate agency or any State or local
government air pollution control agency in preventing or
controlling the pollution of the air ....
In 1977. the definition of “person” was expanded to include “any
agency, department, or instrumentality of the united States.” Clean Air
Act Amendments of 1977 (“the 1977 Amendments”). Pub. L. No. 95-95, 0
301(b), 91 Star, 685, 770. This amendment was contained in the
House-passed version of the 1977 Amendments, which was accepted by the
conference committee. See H.R. 6161, El 113(d), 95th Cong., 1st Sess.
(1977) (“House Bill”): H.R. Conf. Rep. No. 95-564. at 137. 172 (1977).
reprinted in 1977 U.S.C.C.A.N. 1502. 1517-18. 1552-53, The committee
report accompanying the House bill expressly
-7—
stated that the specific purpose of the expansion of the definition of
“person” was to make it clear that section 113 enforcement was available
with respect to federal agencies:
Finally, in defining the term “person” for the purpose of section
113 of the act to include Federal agencies, departments,
instrumentalities, officers, agents, or employees, the committee is
expressing its unambiguous intent that the enforcement authorities
of section 113 may be used to insure compliance and/or to impose
sanctions against any Federal violator of the act.
H.R. Rep. No. 95-294, at 200 (1977). reprinted in 1977 U.S.C.C.A.N.
1077. 1279 (“House Report”). /8/
/8/ The quotation from the House Report indicates that the
House Bill “defin [ ed] the term “person” for the purpose of
section 113.” The House Bill accomplished that purpose by
amending the Act’s general definition of “person.” not by
creating a special definition applicable only to section 113.
See H.R. 6161, supra. U 113(d).
In sum, the expansion of the definition of “person” to include
federal agencies, together with the statement in the House Report that
the definitional change was for the express purpose of subjecting
federal agencies to F,,PA enforcement under section 113, leave no room
for doubt that Congress clearly indicated in 1977 its intent to
authorize EPA to use its section 113 enforcement authorities against
federal agencies.
Page 7

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Iv.
EPA takes the position that its authority under the Clean Air Act
to assess civil penalties against federal agencies administratively can
be exercised consistent with Articles II and Ill of the, constitution,
E, PA bases its position on the view that the Act
provides sufficient discretion to the affected parties so that
complete resolution of the dispute may occur within the Executive
Branch, up to and including referral to the President of any issues
that are not otherwise resolved, and the President is not deprived
of his opportunity to review the matter in dispute.
EPA Memorandum at 1. we agree with EPA’s PoS tiOfl. we will discuss the
Article II and Article III issues separately.
A.
EPA asserts that it can exercise its administrative enforcement
authority under the Act in a way that is consistent with the President’s
supervisory authority under Article II. EPA emphasizes that the Act
-8-
provides a federal facility with the fight to a hearing before
final assessment of a penalty, and therefore . . . provides federal
facilities with sufficient opportunity to raise any dispute to the
President where considered appropriate. Nothing in the Act would
prevent a federal facility from exercising this opportunity to
raise any dispute to the President.
Id. at 5 (footnote omitted). Nor are federal agencies limited to using
the hearing process to raise a dispute to the appropriate level within
the executive branch: federal agencies will have the opportunity to
consult with the EPA Administrator before any assessment is final, see
id. and the Attorney General could seek to resolve the matter if either
EPA or the respondent federal agency sought to litigate the matter, ace
Id. at 6.
The critical point for constitutional purposes is that the Act does
not preclude the President from authorizing any process he chooses to
resolve disputes between EPA and other federal agencies regarding the
assessment of administrative penalties. “ [ I]t is not inconsistent with
the constitution for an executive agency to impose a penalty on another
executive agency pursuant to its statutory authority so long as the
President is not deprived of his opportunity to review the matter.” NRC
Opinion, 13 Op. O.L.C. at 136-37.
DOD attempts to distinguish our NRC opinion, which concluded that
the administrative enforcement authority of the Nuclear Regulatory
Commission (“NRC”) under the Atomic Energy Act. see 42 U.S.C. 0 2282
(1994), could be exercised against federal agencies consistent with
Article II. DOD suggests that the statutory regimes are different.
arguing principally that they differ with respect to the Attorney
General’s authority to resolve a dispute. It notes that the Atomic
Energy ct contains an express authorization to the Attorney General, in
circumstances where the NRC has requested that the Attorney General
institute a civil action to collect a penalty, “to compromise, mitigate,
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—ISY 1D 1S . TMP
or remit such civil penalties.” 42 u.s.c. o 2282(c) (1994). See DOD
Memorandum at 10-11. DOD then asserts that the Clean Air Act is
different because it “limits the discretion of the Attorney General to
compromise, mitigate or remit a penalty assessment.” Id. DOD apparently
bases that assertion on the language in section 113(d)(5) stating that
in any civil action “the validity, amount, and appropriateness of such
order or assessment shall not be subject to review.” 42 u.s.c. El
7413 Cd) (5) (1994),
DOD’s assertion that the Clean Air Act limits the Attorney
General’s discretion is incorrect. section 113(d)(s) acts as a
limitation only on the authority of the courts in any action that is
brought before the courts. It is not a limitation on the Attorney
General acting under Executive Order 12146 or any litigation review
process, or -- more to the point -- the President acting through
whatever executive branch process he may authorize. The absence of any
limitation on the President’s discretion is the dispositive factor for
constitutional purposes, and in that respect the two statutory regimes
are the same. Neither statute
-9-
precludes resolution within the executive branch, including resolution
by the President, of disputes between the enforcement agency and other
federal agencies. /9/
/9/ Nor does the Clean Air Act’s citizen suit provision
operate to preclude resolution within the executive branch.
Section 304 provides that “any person may commence a civil
action on his own behalf. . . against any person (including...
the united States . . .) who is alleged . . . to be in violation
of... (B) an order issued by [ EPA] . . . with respect to [ an
emission] standard or limitation” under the ct. 42 u.s.c. 0
7604(a)(l)( 1994) The filing of a citizen suit during the
pendency of a dispute between EPA and a federal agency would
not prevent the President from directing EPA to suspend,
withdrew or modify the order it had issued to the agency. Such
direction could be provided specifically in individual cases or
generally by operation of a standing directive setting forth
procedures for resolution of enforcement proceedings under
section 113.
B.
EPA acknowledges that the civil action provisions contained in
sections 113(d)(4) and 113(d)(5) of the ct, see 42 u.s.c. uiJ
7413(d)(4), 7413(d)(5) (1994), “raise the possibility of one
executive branch agency suing another in federal court over the
administrative penalty,’ EPA Memorandum at 9. but -it takes the
position that “ [ t]he constitutional concerns . . . could be avoided by
an interpretation that the general reference to review in federal
district court reasonably means only judicial review that was otherwise
constitutional .“ Id. In particular, EPA emphasizes that “nothing in
the Clean Air Act mandates that two executive branch agencies end up in
federal court. There is at most an opportunity for an agency to seek
judicial review, and a requirement that EPA ‘request’ that the
Attorney General file a collection action.” Id. EPA concludes that
“the mere possibility that an interagency lawsuit might result does not
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-ISY1D15 .TMP
invalidate an agency’s ability to assess civil penalties against another
executive branch agency, where the Attorney General has adequate
discretion to control the filing of such a lawsuit.” Id. at 10.
As stated in Section II of this opinion, “this Office has
consistently said that lawsuits between two federal agencies are not
generally justiciable.’” Fair Housing Act Opinion, at 6 (quoting NRC
Opinion, 13 Op. O.L.C. at 138). “We have reasoned that federal courts
may adludicate only actual cases and controversies, that a lawsuit
involving the same person as both plaintiff and defendant does not
constitute an actual controversy, and that this principle applies to
suits between two agencies of the executive branch.” Id. we agree with
EPA, however, that this Article III barrier to use of the civil action
remedies of section 1.13(d) is not a barrier to EPA’S exercise of its
administrative enforcement authority under the Act. Put another way. we
agree that the administrative authority can be exercised consistent with
Article III. The Act does not requite that civil actions be brought in
the event of a dispute of an assessment by EPA; it merely authorizes the
bringing of such actions,
Thus, as is the case with the comparable enforcement provisions
contained in the Atomic Energy Act. which we concluded in our NRC
opinion could be applied consistent with Article iii “this
constitutional issue need not arise, because the framework of the Act
- 10 -
clearly permits [ a] dispute over civil penalties to be resolved within
the executive branch. and without recourse to the judiciary.” NRC
Opinion. 13 Op. O.L.C. at 141. /10/ To the extent that the civil action
provisions of the two statutes are parallel, in that the Attorney
General rather than the enforcement agency has control over whether to
bring the civil action. our analysis in the NRC Opinion is directly
controlling here:
It is therefore clear that the Attorney General may exercise
[ her] discretion to ensure that no lawsuits are filed by [ EPA]
against other agencies of the executive branch. If the Attorney
General and the President determine that no civil penalties should
be collected, the Attorney General may simply refrain from bringing
a lawsuit. If the Attorney General determines that certain civil
penalties are appropriate, however, the Attorney General would
still not bring a lawsuit because of the constitutional problems
noted above. Rather, procedures internal to the executive branch
are adequate to resolve the dispute through the determination that
[ the federal agency responsible for the federal facility] is
ii abl e.
Id. at 143.
/10/ See also Id. at 143 (“We thus conclude that a lawsuit
between two agencies of the executive branch would involve
substantial constitutional problems, but that the statutory
scheme permits resolution of the interagency dispute within the
executive branch.”),
The only difference between the two statutes that is relevant to
the Article III question is that section 113(d)(4) of the clean Air
Page 10

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—ISY1D15 .TMP
Act would also authorize the agency responsible for the federal facility
to initiate a civil action to contest an F,,PA administrative order. See
42 u.s.c. ii 7413(d)(4) (1994). The difference is not significant for
constitutional purposes. however, because, as we have explained, the Act
is permissive only and does not require any federal agency to bring a
civil action. Moreover, the Attorney General and the President possess
the authority to forestall liti9ation between executive branch entities.
The Attorney General is responsible for conducting litigation on behalf
of most federal agencies and therefore can ensure that no civil action
is filed by those agencies against another federal entity. we would
expect that the relatively few federal agencies that have relevant
independent litigatin9 authority similarly would decline to file civil
actions, consistent with the conclusions set forth in this memorandum.
In any event, the President could direct the agency head not to bring an
action or to withdraw any action that might be filed.
* End of Document *
Page 11

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41

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Fact Sheet
CLEAN AIR INTERSTATE RULE (CAIR)
Cleaner Air, Healthier Lives, and a Strong America
3//o/2 e’o
On March 10, 2005, the Environmental Protection Agency (EPA) announced the Clean Air
Interstate Rule (CAIR), a rule that will achieve the largest reduction in air pollution in more than
a decade. This action, called the “Interstate Air Quality Rule” when it was proposed in January
2004, offers steep and sustained reductions in air pollution as well as dramatic health benefits at
more than 25 times greater than the cost by 2015.
• Through the use of the proven cap and trade approach, CAIR achieves substantial reductions
of sulfur dioxide (SO 2 ) and nitrogen oxides (NOr) emissions and is a powerful component of
the Admmistration’s plan to help over 450 counties m the eastern U.S. meet EPA’s protective
air quality standards for ozone or fine particles.
• SO 2 and NO contribute to the formation of fine particles and NOx contributes to the
formation of ground-level ozone. Fine particles and ozone are associated with thousands of
premature deaths and illnesses each year. Additionally, these pollutants reduce visibility and
damage sensitive ecosystems.
By the year 2015, the Clean Air Interstate Rule will result in:
-- nearly $100 billion in annual health benefits, annually preventing 17,000 premature deaths,
millions of lost work and school days, and tens of thousands of non-fatal heart attacks and
hospital admissions.
-- nearly $2 billion in annual visibility benefits in southeastern national parks, such as Great
Smokey and Shenandoah.
-- significant regional reductions in sulfur and nitrogen deposition, reducing the number of acidic
lakes and streams in the eastern U.S.
• CAIR covers 28 eastern states and the District of Columbia. In this rule, EPA finds that S02
and NOx emissions from 23 states and the District of Columbia contribute to unhealthy
levels of fine particles in downwind states In addition, NOx emissions in 25 eastern states
and the District of Columbia contribute to unhealthy levels of 8-hour ozone in other
downwind states. (See list of affected states below.)
Based on an assessment of the emissions contributing to interstate transport of air pollution and
available control measures, EPA has determined that achieving required reductions in the
identified states by controlling emissions from power plants is highly cost effective
• States must achieve the required emission reductions using one of two compliance options:
1) meet the state’s emission budget by requiring power plants to participate in an EPA-
administered interstate cap and trade system that caps emissions in two stages, or 2) meet an
individual state emissions budget through measures of the state’s choosing.

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• CAIR provides a Federal framework requiring states to reduce emissions of S02 and NOx.
EPA anticipates that states will achieve this primanly by reducmg emissions from the power
generation sector. These reductions will be substantial and cost-effective, so in many areas,
the reductions are large enough to meet the air quality standards. The Clean Air Act requires
that states meet the new national, health-based air quality standards for ozone and PM2.5
standards by requiring reductions from many types of sources. Some areas may need to take
additional local actions. CAIR reductions will lessen the need for additional local controls.
• This final rule provides cleaner air while allowing for contmued economic growth. By
enabling states to address air pollutants from power plants in a cost effective fashion, this
rule will protect public health and the environment without interfering with the steady flow
of affordable energy for American consumers and businesses.
• If states choose to meet their emissions reductions requirements by controlling power plant
emissions through an interstate cap and trade program, EPA’s modeling shows that
) In 2010, CAIR will reduce SO 2 emissions by 4.3 million tons -- 45% lower than 2003
levels, across states covered by the rule. By 2015, CAIR will reduce SO 2 emissions by
5.4 million tons, or 57%, from 2003 levels in these states. At full implementation, CAIR
will reduce power plant SO 2 emissions in affected states to Just 2.5 million tons, 73%
below 2003 emissions levels.
‘ CAIR also will achieve significant NOx reductions across states covered by the rule In
2009, CAIR will reduce NOx emissions by 1.7 million tons or 53% from 2003 levels. In
20 15, CAIR will reduce power plant NOx emissions by 2 million tons, achieving a
regional emissions level of 1.3 million tons, a 61% reduction from 2003 levels.
In 1990, national SO 2 emissions from power plants were 15.7 million tons compared to
3.5 million tons that will be achieved with CAIR. In 1990, national NOx emissions from
power plants were 6.7 million tons, compared to 2.2 million tons that will be achieved
with CAIR.
• In upcoming but closely related action, EPA will impose the first ever federally-mandated
requirements that coal-fired electric utilities reduce their emissions of mercury. Together the
Clean Air Mercury Rule and the Clean Air Interstate Rule create a multi-pollutant strategy to
reduce emissions throughout the United States.
• The Bush Administration continues to believe that the President’s Clear Skies legislation is a
more efficient, effective, long-term mechanism to achieve large-scale national reductions.
Clear Skies legislation applies nationwide and is modeled on the highly successful Acid Rain
Program The Agency remains committed to working with Congress to pass legislation.
2

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Coverage of the Clean Air Interstate Rule
States listed are required to control for both fine particle pollution and ozone transport
unless otherwise noted
Alabama Mississippi
Arkansas (ozone only) Missouri
Connecticut (ozone only) New York
Florida New Jersey (ozone only)
Delaware (ozone only) North Carolina
Georgia (fme particle pollution only) Ohio
Illinois Pennsylvania
Indiana South Carolina
Iowa Tennessee
Kentucky Texas (fine particle pollution only)
Louisiana Virginia
Maryland West Virginia
Massachusetts (ozone only) Wisconsin
Michigan Distnct of Columbia
Minnesota (fine particle pollution only)
For More Information
For information on the Clean Air Interstate Rule, visit www.eDa.gov/cair
3

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Cheryl
Mcmenamin/R4/USEPA/US
03/14/2005 12:32 PM
To Patricia StrougalIR4/USEPAIUS EPA, Lee
GoldbergIR4/USEPA/US EPA
cc
bcc
Subject Fw New Clean Air Interstate Rule
fyi
— Forwarded by Cheryl Mcmenamin/R4/USEPNUS on 03/14/2005 12:31 PM —
Nancy
Tomme lleo/R4/LJSEPA/US
03/14/2005 11:26 AM
To Mary-Kay Lynch/R4/USEPAIUS@EPA, Bill
Anderson/R4/LJSEP AfUS@EPA
cc Richard Leahy/R4/USEPAIUS@EPA, R4 OEA Staff
Subject New Clean Air Interstate Rule
Below is information on a major new Air Rule just issued by EPA. The Rule (whose preamble alone is
777 pages) is meant to address the problem of transport (across state lines and regionally) of emissions
that contribute to ozone and fine particulate matter pollution The Rule focuses reduction efforts on the
power plant sector The Fact Sheet for the Clean Air Interstate Rule, signed by EPA on March 10, 2005,
is attached.
Right click and open with Adobe
cair_IinaL act pdl

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42

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i /v
Cheryl To Patricia StrougaI/R4/USEPAIUS EPA, Lee
Mcmenamin /R4/USEPNUS Goldberg/R4/USEPNU 5 EpA
03/16/2005 09:16 AM CC
bcc
Subject Fw Another Major AIR Rule Issued Today - EPA’s Mercury
Rule
— Forwarded by Cheryl Mcmenamin/R4IUSEPA US on 03/16/2005 09.15 AM —
Nancy
Tommelleo/R4/USEPAIUS To R4 OEA Staff
03/15/2005 04 23 PM cc
Subject Another Major AIR Rule Issued Today - EPA’s Mercury Rule
Basic Information
On March 15, 2005, EPA issued the first-ever federal rule to permanently cap and reduce mercury
emissions from coal-fired power plants. This rule makes the United States the first country in the
world to regulate mercury emissions from coal-fired power plants.
• The Clean Air Mercury Rule will build on EPA’s Clean Air Interstate Rule (CAIR) to
significantly reduce emissions from coal-fired power plants -- the largest remaining sources
of mercury emissions in the country. When fully implemented, these rules will reduce utility
emissions of mercury from 48 tons a year to 15 tons, a reduction of nearly 70 percent.
• CAIR and the Clean Air Mercury Rule are important components of the Bush Administration’
s plan to improve air quality. The Administration remains committed to working with
Congress to help advance the President’s Clear Skies legislation in order to achieve greater
certainty and nationwide emission reductions, but believes the U.S. needs regulations in
place now.
• EPA believes it makes sense to address mercury, S02 and NOx emissions simultaneously
through CAIR and the Clean Air Mercury Rule. These rules will protect public health and the
environment without interfering with the steady flow of affordable energy for American
consumers and business.
• The Clean Air Mercury Rule establishes ustandards of performance” limiting mercury
emissions from new and existing coal-fired power plants and creates a market-based
cap-and-trade program that will reduce nationwide utility emissions of mercury in two
distinct phases. The first phase cap is 38 tons and emissions will be reduced by taking
advantage of co-benefit” reductions — that is, mercury reductions achieved by reducing
sulfur dioxide (S02) and nitrogen oxides (NOx) emissions under CAIR. In the second
phase, due in 2018, coal-fired power plants will be subject to a second cap, which will
reduce emissions to 15 tons upon full implementation.
• New coal-fired power plants (anew” means construction starting on or after Jan. 30, 2004)
will have to meet stringent new source performance standards in addition to being subject
to the caps.
• Mercury is a toxic, persistent pollutant that accumulates in the food chain. Mercury in the air
is a global problem. While fossil fuel-fired power plants are the largest remaining source of
human-generated mercury emissions in the United States, they contribute only a small
amount (about 1 percent) of total annual mercury emissions worldwide.

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• EPA’s modeling shows that CAIR will significantly reduce the majority of the coal-fired
power plant mercury emissions that deposit in the United States, and those reductions will
occur in areas where mercury deposition is currently the highest. The Clean Air Mercury
Rule is expected to make additional reductions in emissions that are transported regionally
and deposited domestically, and it will reduce emissions that contribute to atmospheric
mercury worldwide.
Mercury Emissions - A Global Problem
• Mercury emitted from coal-fired power plants comes from mercury in coal, which is released
when the coal is burned. While coal-fired power plants are the largest remaining source of
human-generated mercury emissions in the United States, they contribute very little to the
global mercury pool. Recent estimates of annual total global mercury emissions from all
sources -- both natural and human-generated -- range from roughly 4,400 to 7,500 tons per
year. Human-caused U S. mercury emissions are estimated to account for roughly 3
percent of the global total, and U.S coal-fired power plants are estimated to account for
only about 1 percent.
• EPA has conducted extensive analyses on mercury emissions from coal-fired power plants
and subsequent regional patterns of deposition to U.S. waters. Those analyses conclude
that regional transport of mercury emission from coal-fired power plants in the U.S. is
responsible for very little of the mercury in U.S. waters. That small contribution will be
significantly reduced after EPA’s Clean Air Interstate Rule and Clean Air Mercury Rule are
implemented.
• U.S. coal-fired power plants emit mercury in three different forms: oxidized mercury
(likely to deposit within the U.S.), elemental mercury, which travels hundreds and
thousands of miles before depositing to land and water; and mercury that is in
particulate form.
• Because mercury can be transported thousands of miles in the atmosphere, and
because many types of fish are caught and sold globally, effective exposure
reduction will require reductions in global emissions.
• The United States is leading an effort within the United Nations Environment
Programme to create a program that would establish partnerships designed to help
developing countries reduce mercury emissions. The partnerships will leverage
resources, technical expertise, technology transfer, and information exchanges to
provide immediate effective action that will result in tangible reductions of mercury
use and emissions. It accelerates the work of the UNEP Mercury program, originally
proposed by the U.S. at the 2003 UNEP Governing Council meeting.
Mercury and Fish
• Concentrations of mercury in the air are usually low. However, atmospheric mercury falls to
Earth through rain, snow and dry deposition and enters lakes, rivers and estuanes. Once
there, it can transform into, methylmercury, and can build up in fish tissue.
• Americans are exposed to methylmercury primarily by eating contaminated fish. Because
the developing fetus is the most sensitive to the toxic effects of methylmercury, women of
childbearing age are regarded as the population of greatest concern. Children who exposed
to methylmercury before birth may be at increased risk of poor performance on
neurobehavioral tasks, such as those measuring attention, fine motor function, language
skills, visual-spatial abilities and verbal memory.
Revison of December 2000 Finding
. Also on March 15, 2005, in a separate but related action, EPA revised and reversed its

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December 2000 finding that it was “appropriate and necessary” to regulate coal- and
oil-fired coal-fired power plants under section 112 of the Clean Air Act. We are taking this
action because we now believe that the December 2000 finding lacked foundation and
because recent information demonstrates that it is not appropnate or necessary to regulate
coal- and oil-fired utility units under section 112.
• EPA nevertheless believes it is important to regulate mercury emissions from coal-fired
power plants. For that reason EPA has signed two complementary rules — CAIR and the
Clean Air Mercury Rule, issued under sections 110(a)(2)(D) and 111 of the law,
respectively. These rules will allow us to more effectively limit mercury emissions from these
plants.
Cap-and-Trade Basics
• Today’s rule establishes a cap-and-trade system for mercury that is based on EPA’s proven
Acid Rain Program. The Acid Rain Program has produced remarkable and demonstrable
results, reducing 502 emissions faster and at far lower costs than anticipated, and resulting
in wide-ranging environmental improvements.
• In the Clean Air Mercury Rule, EPA has assigned each state and two tribes an emissions
“budget” for mercury, and each state must submit a State Plan revision detailing how it will
meet its budget for reducing mercury from coal-fired power plants. Iwo tribes that have
coal-fired power plants that will be affected by this rule also have been assigned a mercury
emissions budget.
• Today’s rule includes a model cap-and-trade program that states can adopt to achieve and
maintain their mercury emissions budgets. States may join the trading program by adopting
the model trading rule in state regulations, or they may adopt regulations that mirror the
necessary components of the model trading rule.
• Although states and tribes are not required to adopt the EPA-administered cap-and-trade
program, the Agency believes most will do so. The state and tribal emission budgets are
permanent, regardless of growth in the electric sector.
• The mandatory declining emissions caps in the Clean Air Mercury Rule, coupled with
significant penalties for noncompliance, will ensure that the rule’s mercury reduction
requirements are achieved and sustained. At the same time, stringent emission monitoring
and reporting requirements ensure that monitored data are accurate, that reporting is
consistent among sources — and that the emission reductions occur. The flexibility of
allowance trading creates financial incentives for coal-fired power plants to look for new and
low-cost ways to reduce emissions and improve the effectiveness of pollution control
equipment.
The Benefits of Cap-and-Trade Regulation over MACT
• For both a cap-and-trade system and a MACT, emissions limits are established and must
be achieved.
• However, under a cap-and-trade system reductions and caps emissions are capped
permanently and nationwide emissions can only go down. The ability to bank unused
allowances for future use can lead to early reductions of mercury. A trading approach is
forward-looking in its assessment of technology because it provides a continuous incentive
for technology innovation.
• A traditional Section 112(d) MACT approach sets standards based on technology
performance. Each plant subject to a MACI must meet a specific emissions limit. However,
benefits of MACI are not always permanent: With shifts in coal use and with economic
growth, nationwide emission reductions could erode over time. In addition, a MACI
approach would not create as much continuous incentive for the development of new
mercury control technology.

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For More Information
• More information about mercury, EPA’s efforts to reduce mercury emissions, and today’s
rule is available at www.eDa.clov/mercurv .
• More information about EPNFDA’s fish advisory go to website
www.cfsan.fda.gov/ .-frf/sea-mehg.htm l

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43

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.?D ST 4 ,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
MEMORANDUN
SUBJECT: SIP Processing Ref orin Effort
FROM:
L
c\-.
L
51
-
I 0 I ’r
____ /
James B. Weigold, Policy Analys } ’
Off ice of Air Quality Planning and
Standards (MD-li)
TO: See Addressees
The SIP processing reform Federal Register notices have been
signed by the Administrator and are being sent to the Federal
Register for publication. I am enclosing both notices for your
files. I am also enclosing a fact sheet for use in answering
questions, and a letter from Don Clay to James MacRae of 0MB
which should be self-explanatory (0MB agreed to our proposal).
I am confident that these important reforms will be a
success and will substantially improve the efficiency and timeli-
ness of EPA SIP review. Everyone on the work group is to be
congratulated for their dedication and effort in making this
major change in basic EPA operations happen (in, comparatively
speaking, a remarkably short period of time). I want to express
my sincere appreciation to you all--well done!
Enclosures
Addressees :
Donna 1 brams, Reg III
Bill Baker, Reg II
John Crocker, Reg VI
Myra Cypser, OAQPS
Curt Devereux, OAQPS
Tom Eagles, OPAR
Liz Edmonds, OECM
Denise Gerth, OAQPS
Gary Gulezian, Reg V
‘1
‘V
GA.

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2
Ad. ressees (continued i :
Lee Hanley, Reg VIII
Dave Kircher, Reg X
Barry Korb, OPPE
Joe Kunz, Reg III
Wayne Leidwanger, Reg VII
Nancy Mayer, OAQPS
Bob Miller, Reg V
Marcia Mulkey, Reg III
Johnnie Pearson, OAQPS
Stuart Perry, Reg IV
Julie Rose, Reg IX
Joe Sableski, OAQPS
Sara Schneeberg, OGC
John Silvasi, OAQPS
Michael Smith, Reg V
Marcia Spink, Reg I
cc: Don Clay (w/o atch)
Gerald Einison (w/o atch)
John Calcagni (w/o atch)
Air Directors, Regions I-X
Air Branch Chiefs, Regions I-X
Regional Counsels (Air Contact)

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U. S. EPA, December 27, 1988
FACT SHEET ON SIP PROCESSING REFORN
• More than 1600 SIP actions processed since 1983,
averaging 350 per year.
• Many more per year are expected in the near term, in
response to ozone, carbon monoxide, particulate matter
and stack height requirements.
• Concerned about SIP backlogs and lengthy EPA review
times, then Deputy Administrator Barnes established in
June 1987 a senior level task group, composed of EPA and
State air pollution professionals, to identify problems
and recommend solutions.
• The task group presented its recommendations to the
Deputy Administrator in October 1987, and they were
accepted fully.
• The recommendations basically addressed two fundamental
problems: excessive EPA review time and uncertainty
concerning the outcome of the SIP review process.
• Shortly thereafter, a work group composed of appropriate
Headquarters offices and all ten EPA Regional Offices was
formed.
• As a result, two Federal Register notices are being
published. One is a notice describing the full range of
SIP processing reforms, which were either already in
place or became effective upon publication. The second
proposes rulemaking to establish an Agency-wide
completeness test for SIP submittals. Notice and comment
will be taken on both documents, and EPA will respond to
the comments in the final rulemaking on the completeness
review procedure.
• As noted, the reforms address the problems of excessive
review time and uncertainty of outcome of the review
process. Excessive review time is being dealt with by
tailoring the intensity of review to the siqnificance of
the SIP submittal, establishing a hierarchy of review:
Completeness review : Incoming SIPS are screened
against established criteria to determine
adequacy for review and decision; incomplete
subinittals are to be promptly corrected or
returned to the State. Interim guidance on

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2
completeness review has been in effect since
March 1988, to be superceded by final
rulemaking.
Letter Notice : Actions which are of no public
interest (e.g., renumbering of State regs,
routine changes to reference updated EPA
guidance documents), will be approved by letter
notice instead of full notice and comment
processing. To inform the public, a summary of
letter notice actions taken will be published
periodically in the Federal Register by the
Regional Office.
Direct Final : More SIP actions for which no
adverse comment is expected will be processed as
“direct final,” a procedure in use at EPA since
1982. Under direct final, a SIP decision is
published as a final action (no proposal) in the
Federal Register . If notice of adverse comment
is received, the notice is withdrawn and the
standard proposal/final processing procedure is
followed.
Delegation of Decision Authority : Centerpiece of
the reforms. Decision authority is being
delegated to the Regional Administrators for
about half of all SIP submittals. For most
delegated actions, all Headquarters review is
waived, substantially shortening SIP review
time. Actions being delegated are of local
concern, thereby appropriately focusing the
decision at the Regional Office level. (The
list of delegated SIPS are shown on Tables 2 and
3 of the SIP reform notice.)
Full Review of Nationally Significant Actions :
All SIP actions of national significance (ozone,
PM-b, CO attainment plans, generic State regs
or programs, etc.) will continue to receive full
Regional Office and Headquarters review, and be
signed by the Administrator. Those SIP cate-
gories requiring full EPA review are shown on
Table 1 of the notice.
• Uncertainty will be addressed by:
Adherence to Formal Procedures : Revised SIP
processing procedures will be followed more
closely, emphasizing prompt decisionmaking, and
more formal notification to the States.

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3
Grandfathering : Where appropriate, SIP submittals
will be reviewed in accordance with guidance and
policy in effect at the time the State adopts a
potential SIP revision, provided the State acts
in good faith.
Improved Guidance and Communication : A variety of
initiatives will be undertaken to ensure timely
exchange of information, including a more
comprehensive SIP tracking system, policy
hotlines, periodic conference calls on SIP
issues, and possibly an electronic “SIP bulletin
board.”
• To maintain oversight and to keep senior management
informed of SIP reform implementation, an expanded
management system is being put in place; this system will
include formal periodic audits of both EPA Headquarters
and Regional Office performance.
• For more information, contact:
Johnnie Pearson, OAQPS [ (919) 541—5691; FTS 629—5691]
Jim Weigold, OAQPS [ (919) 541—5642; FTS 629—5642]

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,. %
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHU GTON,D.C.2046o
16 DEC 989
O flCL OF
*11 AXD
Mr. James B. MacRae, Jr.
Deputy Administrator
Office of Information and Regulatory Affairs
Office of Management and Budget
New Executive Office Building, Room 3236
Washington, DC 20502
Dear Mr.)W iae:
We have recently been discussing the SIP processing reform
package that is now undergoing 0MB review. Pursuant to these
discussions, I request that 0MB waive for a 2-year period the
requirement that certain disapproval actions be reviewed by 0MB
prior to sign-off at EPA. Thus, the package can be released for
publication in the Federal Register essentially unchanged, and
these important reforms can be put in place as soon as possible.
Specifically, the actions for which 0MB would waive review
are those SIP disapproval actions for categories of SIPS which
are being delegated to the EPA Regional Administrators for final
decision (i.e., those categories listed on Tables 2 and 3 of the
omnibus Federal Register notice). It is understood that dis-
approval of nationally significant SIP submittals (those
requiring the Administrator’s signature as shown on Table 1 of
the notice) will continue to be Bent to 0MB for review prior to
final action.
To assure that 0MB will be fully informed concerning the
implementation of the reform measures, EPA staff will brief 0MB
staff quarterly during the waiver period. During these brief-
ings, we viii discuss overall progress and any trends in SIP
review activity (e.g., changes in numbers or type of actions,
changes in review time, quality of package preparation, etc.).
We will also discuss any issues or problems that may arise, and
the nature of action being taken by EPA to address them. At the
end of the 2-year waiver period, we will jointly evaluate the
implementation of the reforms and consider any adjustments that
may be needed.

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2
I think that the proposed approach provides an opportunity
to assure that these badly needed SIP processing reforms get of f
to a good start, and viii assist in building confidence in their
effectiveness. Thanks to you and your staff for your interest,
and your constructive comments on the reforms.
Sincerely yours,
La
Actin As stant Administrator
for Air and Radiation
cc: Gerald Emison
Eileen Claussen
John Calcagni

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6560-50

ENVIRONMENTAL PROTECTION AGENCY
[ 40 CFR Part bi]
STATE IMPLEMENTATION PLAN COMPLETENESS REVIEW
[ FRL ]
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Proposed Rulemaking
SUMMARY: This notice describes the procedure for assessing whether
a State implementation plan (SIP) submittal is adequate to trigger the
Clean Air Act requirement that EPA review and take action on the submittal.
The notice describes, among other things, the criteria for determining the
“completeness” of the submittal. EPA is concerned that uncertainty and
excessive delays in reviewing SIPs frustrate the development of an optimum
State/Federal partnership, cause confusion for sources regarding applicable
regulations, and generally dampen initiative in State regulatory programs.
Prompted by this concern, EPA is instituting a wide ranye of SIP processing
reforms as described elsewhere in this FEDERAL REGISTER. The proposed
rulemaking described below is one of these retorms.
EPA’s previous SIP processing procedures provided no mechanism to
reject or otherwise eliminate essentially unreviewable SIP submittals
(i.e., those missing information necessary to make a reasonable decision as
to their procedural and environmental adequacy). Heretofore, SIP subrnittals
that lacked required basic information such as evidence of legal authority
or of properly conductea public hearings, or technical support information

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sufficient to describe a proposed change, generally went through full
notice and comment rulemaking (proposed and final) before being rejected.
Today’s proposal provides a procedure and screening criteria to enable
States to prepare adequate SIP submittals, and to enable EPA reviewers to
promptly screen SIP submittals, identify those that are incomplete, and
return them to the State for corrective action without having to go through
rulemaki fly.
EPA believes that this change, together with those descriDed elsewhere
in this FEDERAL REGISTER, should enable SIP submittals to be prepared and
processed more efficiently and, overall, should improve the quality of SIP
submittals.
DATES: All comments should be submitted to EPA at the address shown
below by [ date 45 days from the date of publication of the FEDERAL REGISTER
notice].
ADDRESSES: Interested parties may submit written comments in dupli-
cate to Public Docket No. A—88-18 at: Central Docket Section (A-130),
South Conference Center, Room 4, U. S. Environmenta1 Protection Agency,
Attention: Docket No. A-88—18, 401 M. Street, S. W., Washington, U. C.
20460.
Materials relevant to this rulemaking have been placed in Docket
No. A—88-18 by EPA and are available for inspection at the above address
between 8:00 a.m. and 3:30 p.m., Monday through Friday. The EPA may
charge a reasonable fee for copying.
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FOR FURTHER INFORMATION CONTACT: Mr. James Weigold, Office of Air
Quality Planning and Standards (MD—li), U. S. Environmental Protection
Agency, Research Triangle Park, North Carolina 27711; Telephone (919)
541—5642 or (FTS) 629—5642.
SUPPLEMENTARY INFORMATION:
Background
The 1970 Clean Air Act (CAA) established the air quality
management process as a basic philosophy for air pollution control in
this country. Under this system, EPA establishes air quality goals
(National Ambient Air Quality Standards — NAAQS) for common pollutants.
There are now standards for 6 pollutants: ozone, carbon monoxide, sulfur
dioxide, nitrogen dioxide, particulate matter (PM 10 ), and lead. States then
develop control programs to attain and maintain these NAAQS. These proyrams
are defined by State Implementation Plans (SIPs) which are approved formally
by EPA and are legally enforceable by the Agency. Under Section 11U(a)(2),
a SIP must demonstrate attainment, describe a control strategy, contain
legally enforceable regulations, include an emission inventory and procedures
for new source review, outline a program for monitoring, and show adequate
resources. In addition, there can be many other requirements specific to
the pollutant being considered. Under Section 110(a) (3), revisions to a SIP
must not interfere with the SIPs ability to meet these requirements. The
consequences of State failure to yet SIP approval may be serious; they include
Federal promulgation of control regulations and economic sanctions.
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Affirmative action is required by EPA on essentially all aspects of
every SIP and SIP revision. Since EPA’s final decision comes after a
regulation already is adopted and implemented at the State level, excessive
delay in the review process often is a major source of friction in EPA’s
relations with State and local agencies. SIP processing at EPA has a
schedule goal of 5/2-5/2 for final action. That is, the Regions nominally
have 5 months to review submittals in both the proposal and promulgation
phases; Headquarters nominally has 2 months in each phase. However, SIP
actions often take considerably longer than the total 14 months allocated
to publish a final decision. 1
The lenythy decision process has resulted in strong criticism from
sources both inside and outside the EPA. In response, the Deputy
Administrator commissioned in July 1987 a senior level task group to
assess the problems inherent in the process and to recomend solutions.
The task group conducted its assessment and presented recommendations to
the Deputy Administrator. The recommendations were approved fully and
are described in a companion notice in today’s FEDERAL REGISTER. One of
these recommendations concerns a procedure and criteria for identifying
a “complete” SIP package, thereby providing States with guidance on preparing
‘Note that Section 11O(a)(2) of the Clean Air Act requires that “The
Administrator shall, within four months after the date required for sub-
mission of a [ SIP], approve, or disapprove such [ SIP] for each portion
thereof.” Under the Agency’s present processing workload, such a time
limit is literally impossible to meet for all but the most trivial of
actions. EPA maintains that this deadline does not apply to SIP revi-
sions, but rather only to the initial SIP, submitted after EPA promul-
gates a NAAQS. Some courts have supported EPA’s position; other courts
have held that a 4—month review period applies to a SIP revision.
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adequate SIP revisions and EPA with a clearly defined mechanism to keep
essentially unreviewable SIP revisions out of the review process.
This is important because if a State submits a SIP change without
properly stated emission limits, legal authority or compliance schedules,
or which contains other obvious deficiencies, it can enter the full EPA
review system. Such a SIP either will be eventually disapproved, or
languish while the State is required (perhaps months later) to supply
essential data. Heretofore, EPA’S procedures did not provide in any
comprehensive way tor prompt rejection for incompleteness. Independently,
however, some Regional Offices have tried to deal with this problem, and
have developed procedures wherein SIP submittals are judged against a set
of completeness criteria. The purpose of these procedures has been to keep
incomplete packages out of the more extensive review system, thereby saving
both EPA and the State valuable time and resources. Today, EPA is proposing
to institute an EPA-wide procedure for completeness review of all SIP sub—
mittals.
Completeness Review
In order to free EPA resources that would otherwise be consumed in
processing incomplete and inherently unapprovable SIPs, EPA has created a
completeness review process. Under this process, EPA will review a SIP for
completeness when it is initially submitted to determine if all the necessary
components have been included to allow the agency to properly review and
act on the substance of the SIP revision. This will be a quick screen
that will assess the reviewability of a SIP submittal, not its ultimate
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approvability. EPA will then promptly inform the submitting State whether
the agency will proceed to process the SIP revision or if it must be
modified by the State because it is incomplete.
There are several benefits to an early determination of completeness.
First, the State is informed promptly as to the reviewability of the
submittal, a current source of uncertainty in the SIP process. Second, SIP
subrnittals that are inadequate tor processing are returned to the State to
be corrected, rather than going through the review process only to be
disapproved because of a lack of information. Third, unreviewable SIPs are
removed from the process early so that resources at the Federal level are
allocated to processing only SIPs that are adequate for review. Finally,
the completeness criteria provide the States with guidelines on how to
prepare reviewable SIPs. It is expected that once the agencies involved
(State and local, EPA) become accustomed to the completeness review process,
the number of unreviewable submittals will diminish sharply.
Screening criteria have been developed that define the essential
elements of an acceptable package, that wifl avoid obvious inadequacies,
and that can be applied uniformly with limited subjective judgement and
review. The criteria were developed by EPA Regional Offices already
using a list of criteria to determine completeness of SIP packages in an
informal way. On March 18, 198 a policy for determining completeness of
SIP submittals was issued by Gerald A. Emison, Director, Office of Mr
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Quality Planning and Standards (OAQPS), to the Regional Offices (a copy
has been placed in the docket as item II-B—4). The policy includes basic
criteria for determining completeness, and sample letters for accepting and
rejecting SIP submittals. This policy will be followed by EPA until today’s
proposed regulation is made final.
As part of this action, the Administrator is proposing to add these
criteria for determining the completeness of State submittals to 40 CFR
Part 51 as Appendix V. In addition, EPA proposes to modify Section
51.103(a) such that State submissions that do not meet the criteria are not
considered official plan submissions for purposes of meeting the require-
ments of Part 51. In order to be considered as a complete SIP submission
or an official submission for Part 51, each plan must meet the criteria
described below and in Appendix V. The basic criteria are adaptable for
use in parallel processing of State regulations by EPA. 2
EPA is creating this completeness review process under the authority
of Section 301 of the Clean Air Act, which authorizes the Administrator to
prescribe such regulations as are necessary to carry out his functions
under the Act. EPA is interpretiny the terms “plan” in Section 110(a)(1)
and (2) and “revision” in Section 11O(a)(3) to be only those plans and
revisions that contain all of the components necessary to allow EPA to
2 Parallel processing is a procedure by which EPA processes, as a proposal,
State rules which have not yet been fully adopted by the State in order
to expedite the final review process.
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adequately review and take action on such plan or revision under Section
110 (and, where applicable, Part D). EPA believes that Congress would
not have intended to require EPA to review and take action on SIP sub—
mittals that were simply not reviewable because they were lacking important
components. Therefore, the Administrator concludes that Section 110(a)
requires him to act only on complete State subniittals.
Completeness Criteria
The criteria for determining whether a submittal by the State is
complete have been separated into two categories: (a) administrative
information and (b) technical support information. Administrative
information includes the documentation necessary to demonstrate that the
basic administrative procedures have been adhered to by the State during
the adoption process. Technical support information includes the documen-
tation that adequately identifies all of the required technical components
of the plan submission.
Administrative Information
The administrative information required by the criteria are those
basic documents that demonstrate that the State has properly followed the
administrative requirements called for by the Clean Air Act for the adoption
of State implementation plans. These include a letter from the Governor or
his designee requesting that EPA approve the SIP revision, and evidence that
the revision has been adopted by the State in final form, eittier as part
of the State code if the revision is a regulation, or as appropriate source
specific documentation in the form of a permit, order, or a consent agreement.
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The State also must provide documentation that the necessary legal
authority exists within the State to adopt and implement the plan revision,
must include the requisite copies of the actual revision (regulation,
permit, order, etc.), and must indicate that the revision is enforceable by
the State. Finally, the State must submit information indicating that the
program administrative procedures have been followed, including evidence
of public notice and hearings, a compilation of the public comments, and
the State’s response to these comments.
Technical Support
The purpose of the technical support information is to identify the
State’s view of the impact of the revision on the environment. The compo-
nents are intended to demonstrate that the applicable requirements, such as
those for attainment and maintenance of ambient standards, increment con-
sumption, and control technology, are in conformance with basic statutory
and EPA requirements. In order for EPA to make a reasonable decision
concerning the adequacy of a proposed SIP revision, certain information at
a minimum must be included in each submittal. Therefore, for purposes of
determining the completeness of a SIP submission the implementation plan
revision must include an adequate description of the:
(a) pollutants involved;
(b) source location and attainment status of the area;
(c) emissions changes;
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(d) demonstration that standards/increments are protected;
Ce) information used for any mode1iny demonstration;
(f) evidence of continuous emissions controls;
(g) evidence of emissions limitations and other restrictions necessary
to ensure emission levels;
(h) compliance strategies; and
(1) technological and economic justification for the change where
applicable.
Upon receipt of the plan revision, the Regional Office will objectively
examine the revision for inclusion of the administrative and technical support
information. When the revision is determined complete, the formal review of
the adequacy of the information and the approvability of the revision will
proceed. In those situations where the submission does not meet the basic
criteria as discussed above and set forth in Part 51, Appendix V, the
submission will be returned to the State with a letter indicatiny the
deficiencies found. In accordance with the change proposed in 40 CFR
bl.103(a), any submission that does not meet the criteria of Appendix
V will not be considered an official submission triggering the Act’s
requirements for EPA review and action. The basic requirements are similar
for sequential and paraflel processing, varying only in form dictated by
the method of processing. In order to be effective, the determination of
completeness should be made expeditiously. The Regional Offtce generally
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will make a determination of completeness within 45 days of receiving a SIP
revision, using the criteria to make an objective decision.
After the decision has been made on completeness, the Regional Offices
will process the SIP revision if the submission is complete, or return the
SIP revision to the State if it is incomplete. A letter will be sent to
the State, informing the State of the completeness status of the SIP
revision. If a SIP submittal is incomplete, the deficiencies will be
detailed in the letter to the State. If a SIP submittal is complete, the
Regional Office will include EPA’s expected processing schedule in the
letter to the State.
ADMINISTRATIVE REQUIREMENTS
The docket is an organized and complete file of all the information
considered by EPA in the development of these SIP processing changes.
The docket is a dynamic file because material is added throughout the notice
preparation and comment process. The docketing system is intended to allow
members of the public and industries involved to identify and locate docu-
ments so that they can effectively participate in the process. Along with
the statement of basis and purpose of the SIP processing changes and EPA
responses to significant comments, the contents of the docket, except for
interagency review materials, will serve as the record in case of judicial
review (see Clean Air Act, Section 307(d)(7)(A), 42 U.S.C. 7607(d)(7)(A)).
The effective date of these changes is [ insert the date of publication
in the FEDERAL REGISTERJ.
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Section 317(a) of the Clean Air Act, 42 U.S.C. 7617(a), states that
economic impact assessments are required for revisions to standards or
regulations when the Administrator determines such revisions to be sub-
stantial. The changes described today do not change the substantive
requirements for preparing and submittiny an adequate SIP package. No
increase in cost as a result of complying with the changes described
today is expected; moreover, the monitoring, recordkeeping, and reporting
requirements have been determined to be insubstantial. Because the
expected economic effect of the changes is not substantial, no detailed
economic impact assessment has been prepared.
The information collection requirements of these changes are considered
to be no different than those currently required by the Clean Air Act and
EPA procedures. Thus, the public reporting burden resulting from today’s
notice is estimated to be unchanged from existing requirements. The public
is invited to send comments regarding the burden estimate or other aspect
of information collection, including suggestions for reducing any burden,
to the docket and the following: Chief, Information Policy Branch, PM—223,
U. S. Environmental Protection Agency, 401 M Street, S. W., Washington, D.C.
20460; and to the Office of Information and Regulatory Affairs, Office
of Management and Budget, Washington, D. C. 20503, marked “Attention: Desk
Officer for EPA.”
Under Executive Order 12291, EPA is required to judge whether an
action is “major” and therefore subject to the requirement of a regulatory
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impact analysis (RIA). The Agency has determined that the SIP process-
ing changes announced today would result in none of the significant
adverse economic effects set forth in Section 1(b) of the Order as grounds
for a finding of “major. The Agency has, therefore, concluded that this
action is not a “major” action under Executive Order 12291.
This rule was submitted to 0MB for review consistent with Section
307(d) of the Clean Air Act. A copy of the draft rule as submitted to
0MB, any documents accompanying the draft, any written comment received
from other agencies (including 0MB), and any written responses to those
comments have been included in the docket.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601—612, requires the
identification of potentially adverse impacts of Federal actions upon small
business entities. The Act requires the completion of a regulatory flexi-
bility analysis for every action unless the Administrator certifies that
the action will not have a significant economic impact on a substantial
number of small entities. For reasons described above, I hereby certify
that the final rule will not have a significant economic impact on a sub-
stantial number of small entities.
Date Administrator
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For the reasons set out in the preamble, 40 CFR Part 51 is proposed to
be amended as follows:
1. The Authority Citation for Part 51 continues to read as follows:
Authority: This rulemaking is promulgated under authority of
Sections i01(b)(1), lit), 160—69, 171-178, and 3(J1(a) of the Clean
Air Act, 42 U.S.C. 74U1(b)(1), 7410, 7420—7429, 7501—7508, and 7601(a).
2. Section 51.103 is proposed to be amended by revising paragraph
(a) as follows:
§51.10.3 Submission of plans, preliminary review of plans.
(a) The State makes an official plan submission to EPA when the
plan conforms to the requirements of Appendix V to this part, and the
State delivers five copies of the plan to the appropriate Regional
office, with a letter giving notice of such action. The State must
adopt the plan and the Governor or his designee must submit it
to EPA as follows:
3. Part 51 is proposed to be amended by adding Appendix V to
read as follows:
Appendix V — Criteria for Determining the Conpieteness of Plan
Submissions.
1.0. Purpose
This Appendix V sets forth the minimum criteria for determining
whether a State implementation plan submitted for consideration by
EPA is an official submission for purposes of review under §51.103.

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1.1. The EPA shall return to the submitting official any plan
or revision thereof which fails to meet the criteria set forth in
this Appendix V, or otherwise request corrective action, identifying
the component(s) absent or insufficient to perform a review of the
submitted plan.
1.2. The EPA shall inform the submitting official when a plan
submission meets the requirements of this Appendix V, such determina-
tion resulting in the plan being an official submission for purposes
of §51.103.
2.0. Criteria
The following shall be included in plan submissions for review
by EPA:
2.1. Administrative Materials
(a) A formal letter of submittal from the Governor or his
designee, requesting EPA approval of the plan or revision thereof
(hereafter “the plan”).
(b) Evidence that the State has adopted the plan in the State
code or body of regulations; or issued the permit, order, consent
agreement (hereafter document) in final form. That evidence shall
include the date of adoption or final issuance as well as the
effective date of the plan if different from the adoption/issuance
date.
(c) Evidence that the State has the necessary legal authority
under State law to adopt and implement the plan.
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(d) A copy of the actual regulation, or document submitted for
approval and incorporation by reference into the plan, including
indication of the changes made to the existing approved plan, where
applicable. The submittal shall be a copy of the official State
regulation/document signed, stamped, dated by the appropriate State
official indicating that it is fully enforceable by the State. The
effective date of the regulation/document shall, whenever possible,
be indicated in the document itself.
(e) Evidence that the State followed all of the procedural
requirements of the State’s laws and constitution in conducting and
completing the adoption/issuance of the plan.
(f) Evidence that public notice was given of the proposed change
consistent with procedures approved by EPA, including the date of
publication of such notice.
(g) Certification that public hearing(s) were held in accordance
with the information provided in the public notice and the State’s laws
and constitution, if applicable.
(h) Compilation of public coments and the State’s response
thereto.
2.2. Technical Support
(a) Identification of all regulated pollutants affected by the
plan.
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(b) Identification of the locations of affected sources including
the EPA attainment/nonattainrnent designation of the locations and the
status of the attainment plan for the affected areas(s).
(c) Quantitication of the changes in plan allowable emissions
from the affected sources; estimates of changes in current actual
emissions from affected sources or, where appropriate, quantification
of changes in actual emissions from affected sources through calcu-
lations of the differences between certain baseline levels and
allowable emissions anticipated as a result of the revision.
(d) The State’s demonstration that the National Ambient Air
Quality Standards, prevention of significant deterioration increments,
reasonable further progress demonstration, and visibility, are protected
if the plan is approved and implemented.
Ce) Modeling information required to support the proposed
revision, including input data, output data, models used, justifi-
cation of model selections, ambient monitoring data used, meteoro- .
logical data used, justification for use of offsite data (where
used), modes of models used, assumptions, and other information
relevant to the determination of adequacy of the modeling analysis.
(f) Evidence, where necessary, that emission limitations are
based on continuous emission reduction technology.
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(g) Evidence that the plan contains emission limitations, work
practice standards and recordkeeping/reportiny requirements, where
necessary, to ensure emission levels.
(h) Compliance/enforcement strategies, including how compliance
will be determined in practice.
(I) Special economic and technological justifications required
by any applicable EPA policies.
2.3. Exceptions
2.3.1. The EPA, for the purposes of expediting the review of
the plan, has adopted a procedure referred to as “paral1el processing.”
Parallel processing allows a State to submit the plan prior to actua1
adoption by the State and provides an opportunity for the State to
consider EPA comments prior to submission of a final plan for final
review and action. Under these circumstances the plan submitted will
not be able to meet all of the requirements of paragraph 2.1 (all
requirements of paragraph 2.2 will apply). As a result, the following
exceptions apply to plans submitted explicitly for parallel processing:
(a) The letter required by paragraph 2.1(a) shall request that
EPA propose approval of the proposed plan by parallel processing.
(b) In lieu of paragraph 2.1(b) the State shall submit a
schedule for final adoption or issuance of the plan.
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(c) In lieu of paragraph 2.1(d) the plan shall include a copy
of the proposed/draft regulation or document.
(d) The requirements of paragraphs 2.1(e)—2.1(h) shall not
apply to plans submitted for parallel processing.
2.3.2. The exceptions granted in paragraph 2.3.1 shal1 apply
only to EPA ’s determination of proposed action and all requirements of
paragraph 2.1 shall be met prior to publication of EPA ’s final deter-
mination of plan approvability.
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6 6O-bU
LC
ENVIRONMENTAL PROTECTION AGENCY
STATE IMPLEMENTATION PLAN PROCESSINCi REFORM
LFRL
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Procedural Changes.
SUMMARY: This notice describes changes being implemented in the way
State implementation plans (SIPs) are processed at EPA. The Act requires
States to develop plans for attairliny and maintaining the six national
ambient air quality standards established by EPA. These SIPs, including
all revisions to such plans, are reviewed and approved or disapproved by
EPA. This process of State plan preparation, submittal to EPA, ana
subsequent EPA review has been very time-consuming and resource—intensive.
The EPA is concerned that uncertainty and excessive delays in processing
SIPs frustrate the development of an optimum State/Federal partnership,
cause confusion for sources regarding applicable regulations, and generally
dampen initiative in State regulatory programs. Prompted by this concern,
the Deputy Administrator called for an assessment by senior officials of
the processing of SIPs at EPA. The purpose of the assessment was to
identify problems and propose solutions.
The problems identified centered on an excessive concern by EPA for
the potential precedent-setting value of individual SIP revisions, mani-
fested by excessive delay in reaching decisions on many SIP actions and
in uncertainty on the part of sources and State/local agencies as to the

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outcome of the SIP review process. The changes being implemented, described
in detail below, focus on tailoring EPA review to the significance of the
action, and adhering to established procedures for processing SIPs within
EPA in order to promptly identify problems with SIP submittals and to
generally improve the certainty of the process itself. These changes
include, among others: review of SIP submittals for completeness against
specific criteria, and requiring prompt modification of incomplete sub—
mittals; delegation of SIP decision authority to EPA Regional Admini-
strators for a range of SIP actions which are not nationally significant;
and providing for the option to “grandfather” SIP submittals that were
prepared in good faith by a State but which may become deficient to some
degree because of a change in EPA policy subsequent to State adoption.
EPA believes that these changes will produce a number of important
benefits. SIP submittals should be processed more efficier tly and review
decisions made more quickly and equitably; overall, the quality of SIP
submittals should be improved. By working more closely, relations between
EPA Regional Offices and State/local agencies will be improved, enhancing
the effectiveness of air quality management programs generally. Finally,
the changes should result in a more accessible and accountable system,
enabling parties outside EPA to determine more easily the status of SIP
submittals.
DATES: This action will be effective [ insert date of-publication in
the FEDERAL RE(ilSTER]. All comments should be submitted to EPA at the
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address shown below by [ insert date 45 days after the date of publica-
tion in the FEDERAL REGISTER].
ADDRESSES: Interested parties may submit written con nents in dupli-
cate to Public Docket No. A-88—18 at: Central Docket Section (A—130),
South Conference Center, Room 4, U. S. Environmental Protection Agency,
Attention: Docket No. A—88—18, 401 M. Street, S. W., Washington, 0. C.
20460.
Materials relevant to this notice have been placed in Docket No.
A—88—16 by EPA and are available for inspection at the above address
between 8:OU a.m. and 3:30 p.m., Monday through Friday. The EPA may
charge a reasonable fee for copying.
FOR FURTHER INFORMATION CONTACT: Mr. James Weigold, Office of Air
Quality Planning and Standards (MD—il), U. S. Environmental Protection
Agency, Research Triangle Park, North Carolina 27711; Telephone (919)
541—5642 or (FTS) 629-5642.
SUPPLEMENTARY INFORMATION:
Background
The 1970 Clean Air Act (CM) established the air quality management
process as a basic philosophy for air pollution control in this country.
Under this system, EPA establishes air quality goals (National Ambient
Air Quality Standards - NAAQS) for conii on pollutants. There are now
standards for 6 pollutants: ozone (03), carbon monoxide (CO), sulfur
dioxide (SO 2 ), nitrogen dioxide, particulate matter (PM 10 ), and lead.
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States then develop control programs to attain and maintain these NAAQS.
These programs are defined by State Implementation Plans (SIPs) which are
approved or disapproved formally by EPA and, to the extent they are
approved, are legally enforceable by EPA. A SIP must demonstrate attain-
ment and maintenance of the applicable NAN. S, describe a control strategy,
contain legally enforceable regulations, include an emission inventory
and procedures for the preconstruction review of new pollution sources,
outline a program for monitoring, arid show adequate resources for the State
to implement the SIP. In addition, there can be many other requirements
specific to the pollutant being considered. The consequences of State
failure to get SIP approval may be serious, including Federal promulgation
of control regu1ations and sanctions.
Affirmative action is required by EPA on essentially all aspects of
every SIP action. Since EPA’s final decision comes after a regulation
already is adopted and implemented at the State level, excessive delay in
the review process often is a major source of friction in EPA’s relations
with State and local agencies.
There can also be differences of opinion between EPA’s Regional Offices
and Headquarters. Regions provide guidance and support to States in
writing SIPs and then must review them and reconi end approval or disapproval.
The need for flexibility in deaflng with each State and situation is
important to the Regions. On the other hand, Headquarters’ offices have
a major responsibility to ensure basic national consistency on legal,
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policy, and technical issues. Thus, SIP decisions are under constant
pressure because they are visible and quantitative tests of the elusive
balance sought between State flexibility and the firmness and consistency
provided by national directives.
More than 1600 SIP related actions have been processed from 1983 to
the present, averaging almost 350 per year. Many of these involved
multiple issues. About 75 percent of the actions fell into three categories:
attainment demonstrations, single source actions, and (although technically
not SIP revisions) actions involving redesignation of attainment status.
Most of the remainder involved new source review actions and emission
trades.
A rough assessment has been made of the future SIP load. With the
promulgation of a national ambient air quality standard for PM 10 , and the
proposed post-1987 ozone and CO attainment policy, the number of SIP
submittals will increase significantly over the next few years. About
100 attainment SIPs and more than 160 “committal” type actions for PM 10
will have to be reviewed. Shortly thereafter, attainment SIPs for ozone
(60—70 areas) and for CO (another bO—60 areas) will be submitted. Potential
revisions to EPA’s 1985 stack height regulations resulting from the court
decision in NRDC v. Thomas , 838 F. 2d 1224 (D.C. Cir. 1988), could require
review of SIP emission limits for as many as 200 stationary sources.
In addition, it is possible that about 30 Section 111(d) SIPs on control
of municipal waste combustors will be developed during this period. The
preceding are in addition to the average load of 350 submittals per year.
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The Current Review Process at EPA
A comprehensive system has been set up for processing SIPs at EPA,
involving full notice and con iient rulemaking. The major steps are sum-
marized below.
1) State prepares the SIP, gets necessary approvals under State law,
provides justification and documentation, and submits it to the
Regional Office from the Governor or his designee. The SIP can
range in size from a few to hundreds of pages.
2) EPA Regions comprehensively evaluate the submittal for policy,
legal and technical adequacy, prepare a Technical Support Document
(ISO), and prepare a proposed/final rule indicating approval or
disapproval of the action. The rule is signed by the Regional
Administrator, if it is a proposal, and sent on for review by EPA
Headquarters. The Headquarters’ offices thereupon undertake an
evaluation of the Regional Office package, regardless of the
significance of the SIP action.
3) The Office of Air Quality Planning and Standards (OAQPS) in Durham,
North Carolina manages the Headquarterss review, coordinating
the technical, policy and legal evaluation with all relevant
Headquarters offices. These may include the Office of General
Counsel and the Office of Policy, Planniny and Evaluation, as
well as several groups within the Office of Air and Radiation
(OAR).
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Each group concurs, concurs with comment, or nonconcurs. Negotia-
tion with the Regions over SIP issues or interpretation frequently
is a part of Headquarters’ review.
4) Proposals are sent to the Assistant Administrator for Air and
Radiation for concurrence. Disapprovals and partial approvals of
SIPs must undergo Office of Management and Budget review (under
Executive Order 12291) before being sent to the Office of the
Federal Register (OFR) for publication.
5) After review by the Assistant Administrator for OAR, all final
actions go to the Administrator for signature and then are sent
to the OFR.
SIP processing at EPA has a schedule goal of 5/2—5/2 for final action.
That is,, the Regions nominafly have 5 months to review submittals in both
the proposal and pronbilgation phases; Headquarters nominally has 2 months
in each phase. However, SIP actions often take considerably longer than
the total 14 months allocated to publish a final decision. 1
The lengthy decision process has resulted in strong criticism from
sources both inside and outside the EPA. In response, the Deputy
1 Note that Section 11O(a)(2) of the Clean Air Act requires that “The
Administrator shall, within four months after the date required for sub-
mission of a [ SIP], approve, or disapprove such [ SIP] for each portion
thereof.” Under the Agency’s present processing workload, such a time
limit is literally impossible to meet for all but the most trivial of
actions. EPA maintains that this deadline does not apply to SIP revisions,
but rather only to the initial SIP, submitted after EPA promulgates a
NAA S. Some courts have supported EPA’s position; other courts have held
that a 4-month review period applies to a SIP revision.
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Administrator commissioned in July, 1987 a senior level task group to
assess the problems inherent in the process and to recommend solutions,
The task group conducted its assessment and presented recommendations to
the Deputy Administrator. 2 The recommendations were approved fully and
are described herein. However, before discussing the steps being taken
by EPA to reform its SIP processing procedures, it is useful to examine
the approach taken by the task group, and the prob1ems uncovered.
The Assessment
The project involved a three-level approach. It included (1) formation
of a senior-level task group on SIP Processing which met throughout the
four—month project, (2) direct discussions with staff intimately involved
In SIP processing, both individually (or in small groups) and at a day-long
Headquarters/Regional Office workshop, and (3) interviews with senior
executives (Deputy Regional Administrators, Office Directors) now at
EPA, and former policy makers with EPA and State air agencies. In addition,
a few limited analytical assessments (e.g., historical SIP activity, number
and distribution of SIPs currently at EPA) were done to better characterize
the issue.
The task group consisted of senior officials from EPA’s Regional
Offices, Headquarters’ groups associated with SIP processing, and State
air agencies. The group met three times, first to discuss the general
problem to be addressed, agree on a course of action, and a5sign special
2 The report on the project is entitled uFinal Report of the Task Group
on SIP Processing,” October 1987. A copy is located in the docket as
Item II-B-6.
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short—tern projects. The second meeting was primarily concerned with
progress update and with presentations by Regional Office and State
agency representatives to give their unique perspectives on the issues.
Finally, at the third meeting, results of analytic studies were presented,
and the range of options for improving the process was discussed. These
meetings led to the SIP processing changes that are being announced today.
The work of the task group was reinforced by discussions with
people directly involved with SIP review in order to get an operations
view of the issues. This included a comprehensive one-day workshop
attended by approximately 50 EPA staff personnel. This group, intimately
familiar with the processing and review of SIP packages, exchanged ideas
on both issues and potential solutions during the workshop.
To gain yet another perspective, a series of interviews was con-
ducted with persons currently or recently involved with SIP processing
from a broader policy sense. For example, the persons interviewed included
a former EPA Deputy Administrator, the former heads of State and local
air programs, senior industry officials, several past EPA Assistant
Administrators, and four current Deputy Regional Administrators. (The
complete list of persons interviewed and their summarized views are
contained in an appendix to the task group report.)
Significantly, there was a noticeable degree of consistency among
those interviewed both in terms of their perception of major problems and
in terms of the general thrust of solutions to be pursued. Almost all
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believed that EPA is too cautious in making SIP decisions, that SiPs vary
widely in importance and EPA should tailor its review accordingly, and
that the current SIP review system is operated too informally. They also
believed that the “moving target” problem (a change in the technical or
policy basis ror EPA decisions after a SIP has been submitted) needed to
be addressed.
Problems Identified
It is clear that the process of reviewing and judging SIPs has been
a constant struggle for EPA and the States and is a source of increasing
tension. Concerns voiced by participants during the assessment indicated
problems at each level of SIP preparation and review. Some cited abuse
of the system by the States to relax source limits. Others believed EPA
was too inflexible and overzealous, resulting in major processing delays
for minor benefits.
It is likely that present problems, if left unattended, will become
worse because of continuing resource constraints and plans that call for
significant increases in SIP activity over the next few years, particularly
in the complex areas of ozone, GO, and PM 10 . In a relatively recent develop-
ment, some enforcement actions have been affected by courts which have
ruled that EPA cannot enforce the current federally approved SIP against
a source for violations occurring more than four months after a SIP
revision affecting the source has been submitted to EPA, unless EPA has
finally acted on the submittal.
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As a result of the discussions and projects described earlier, it
was possible to identify a number of fundamental problems that appear to
be associated with SIP processing. Some of these problems are concerned
primarily with the procedural aspects of SIP review, while others relate
more to the underlying philosophy of the SIP review process (i.e., what is
the process supposed to accomplish), and the attitudes of the SIP reviewers.
For example, there is within EPA a strong concern for consistency in SIP
decisions, and a fear that each decision may have important consequences
in terms of establishing national precedent. However, such concern may
be appropriate for only a small percentage of actions reviewed. Moreover,
it appears that the SIP process has been depended upon as a vehicle to
identify, resolve, and articulate national policy issues, often at the
expense of timely decision making.
The issues identified fall into three basic categories: inordinate
concern for the consequences of individual decisions; excessive EPA
review, including full review for minor or clearly deficient actions; and
uncertainty concerning the outcome of review. These problem categories
are discussed briefly below.
A. Inordinate Concern for Individual Actions
As noted, the current process places a premium on consistency,
stemming in large part from a fear that a decision statement or explanation
concerning a specific State or source may force similar decisions in
other States for similar sources. Although there is a need for consistency
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at some level (e.g., concerning the basic components of an ozone attainment
program or a new PM 10 SIP), it may not be necessary for the results of
all decisions to be similar State to State and source to source. It must
be remembered that SIPs are intended to be tailored by the States to
their specific air quality problems, and the mix of sources from which
emissions reductions can be obtained, within the constraints of the Clean
Air Act (such as the requirement for reasonably available control tech-
nology in nonattainment areas). Although it is important for policy and
broad technical requirements to be applied consistently, it is not necessary
that the result of their application to localized problems turn out the
same.
Because of the emphasis on consistency and the fear of setting pre-
cedent with individual decisions, SIP reviewers have been reluctant to
risk making mistakes on any SIP change; this, considering the number of
actions EPA must review, inhibits rapid review and decision making. There
needs to e a greater willingness on the part of all concerned with the
process to risk an occasional noncritical mistake in return for more
rapid processiny and earlier identification of the outcome of the review.
B. Excessive Review
Some SIP packages deserve the full attention of EPA staff and
management; as noted, certainly the basic State programs for post-1987
ozone attainment and programs to achieve the newly promulgated PM 13
ambient air quality standard will need such review. Similarly, SIP
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revisions for new programs that dictate consistent national implernen-
tation, or that involve complex and evolving policy issues, such as
generic bubble regulations, should receive review and sign-off by EPA
Headquarters. But the same cannot be said for changes to an emission
limit on a local printing plant, composition of State boards, or negative
declarations under Section 111(d). Under EPA’s current approach to SIP
review, all changes receive Regional Office and Headquarters’ review
prior to both proposal and final approval (except for those SIPs, about
20 percent of the total, processed as direct final 3 ). All final actions,
no matter how trivial, currently are signed by the Administrator.
There are several problems with this multiple review for all actions:
it inherently takes longer than processing only at the Regional Office
level; it ties up the scarce Headquarters’ resources available for SIP
review (thus making a long process even longer); and by introducing more
reviewers into the process, it increases the chance of rejection for
procedural or other reasons which have no impact on air quality.
There are other aspects to the excessive review problem. If a
State submits a SIP change without properly stated emission limits, legal
authority or compliance schedules, or which contains other obvious defi-
ciencies, it can enter the system and be subject to complete EPA review
SUnder this procedure, EPA publishes a single FEDERAL REGISTER notice
which indicates that the SIP action will be final in 60 days unless an
interested party requests the opportunity to provide adverse comment.
If a party does wish to provide adverse comment, EPA then follows the
normal SIP processing procedure of notice of proposal and subsequent
final rulemaking.
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and disapproval. EPA’s procedures did not provide in any comprehensive
way for immediate rejection for incompleteness. Independently, however,
some Regional Offices have tried to deal with this problem. For example,
Region I has developed a set of completeness criteria their States must
follow; Region VII provides States with an extensive checklist describing
the information the Region will look for in a wide range of SIP actions.
The purpose is to keep incomplete packages out of the more extensive
review system.
On the other hand, even if the submittal is prepared correctly,
some actions seem unsuited for full review. Examples include simple
recodification of regulations, address changes, or changing modeling or
stack ‘test methods to conform to revised EPA yuidelines. In such actions,
the State is doing exactly what is required and appropriate. Although
such changes can be processed as direct final, even that is probably more
resource intensive than they are worth. However, there is presently no
better way to treat such changes administratively, or keep them out of
the system entirely.
Finally, several members of the Task Group believed that, in addition
to being concerned with SiP processing, EPA should also examine the SIP
process in a more basic way. Specifically, there was debate and interest
expressed by some in promoting direct acceptance of operating permits or
other State single source emission limits. This would be conditioned on
EPA approval of the State’s overall framework and strategy for achieving
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an ambient air quality standard. EPA’s continuing role would be to track
a State’s overall progress and periodically audit the State’s implementa-
tion of the permit process, taking corrective action as necessary. Some
initial steps are being taken in this direction. For example, in response
to the “federal enforceability” issue contained in the Chemical Manufacturers
Association (CMA) consent agreement concerning challenges to EPA’s new
source review regulations, EPA is considering the possibility of allowing
State operating permits to be deemed federally enforceable in certain situa-
tions provided that the State’s operating permits program has been incor-
porated into the SIP and approved by EPA. However, full implementation
of a system involving direct acceptance of State permits or other limits
requires much conceptual discussion concerning State/EPA relations and
fundamental changes to other parts of the national air program, and may
require changes to the Clean Air Act.
C. Uncertainty Concerning the Outcome of the Process
It might be expected that processing a revision to a SIP, given
the EPA’s years of experience, would be a fairly routine process.
However, that often is not the case. The fate of a given SIP revision,
in terms of both the nature and timing of the ultimate decision, can be
uncertain for a number of reasons. Important information necessary for
decision making may be left out of a SIP package, or the format and
justification for the change may be deficient. This can result not only
from inexperience and lack of training at the State and local level, but
also from a lack of clear policy guidance from EPA and timely issue
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resolution. Policies important to SIP preparation and approval may be
unstated or poorly documented. In some cases, there may be no policy at
all to address a specific SIP issue, and the SIP process itself, through
the aggregation of a series of similar actions, is used to evolve a
policy. This situation, in part, derives from sporadic management involve-
ment in the SIP process. Constant attention is needed to assure that
packages are moved through the system, that problems are promptly identi-
fied, and that policy issues are discussed and resolved.
An overt manifestation of uncertainty in the outcome of SIP review
is the moving target syndrome. Under current practice, a SIP may be under
review atEPA for months and eventually be deemed inappropriate because
it doesn’t conform to a newly evolved policy, even though it conformed to
the policy in place when it was submitted. This not only frustrates the
State but results in confusion for the source because until the State
actually changes its submittal, it often continues to implement the regu-
lations disapproved by EPA.
Another factor contributing to uncertainty and delay is the reliance
on informal communication in processing SIPs. The system traditionally has
been characterized by nurturing, not judgmental, interactions. Head-
quarters and Regional Office personnel are reluctant to formally reject
packages, but rather try to work with their colleagues in the processing
chain by phone calls and often protracted negotiation. This stems 1fl
part from reluctance to compromise others that may have acted in good
faith. Also, the documentation needed to support a more formal process
16

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on a large number of SIP actions can become an excessive burden. Unfor-
tunately, in many cases the informal process prolongs the review time
substantially and results in poor documentation for use In similar situa-
tions. In addition, the informal process frequently is criticized by
States and sources because they can’t adequately track the progress of
the change once it gets into EPA review.
Solutions Devised
Based on the task group assessment and the problems identified, EPA has
devised a number of changes to the SIP processing system which it will
begin implementing today. The changes are designed to tailor SIP review to
the significance of the action involved, and to improve the certainty of
the SIP review process. The changes, including the legal rationale sup-
porting them, are described briefly below and in depth in the next section
of this notice.
A. Tailor Review to Significance of Action
EPA has devised a SIP review system under which increasingly intense
review procedures will be applied to increasingly significant actions.
Minor actions will undergo relatively little review while major actions
will continue to receive full Regional Office and Headquarters review. By
tailoring the intensity of review to the significance of the action, this
hierarchy of procedures will generally decrease SIP processing times by
dramatically shortening review periods for minor SIPs and freeing EPA
resources to enable major SIP processing to proceed without existing delays.
1. Completeness Criteria
EPA found that many SIP revision submittals were processed through
full EPA review despite the fact that they were missing major components
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which effectively prevented EPA approval. For example, a State night
submit an emission limitation without compliance testing procedures.
To free EPA resources that would otherwise be consumed processing such
deficient SIPs, EPA has created a completeness review process which is
being proposed for public comment in an accompanying notice in today’s
FEDERAL REGISTER. Under this process, a SIP will be reviewed for complete-
ness against certain basic criteria when it is initially submitted to
determine if all the necessary components have been included to allow
proper review and an ultimate decision on the substance of the SIP revision.
This will be a quick process that will look at the reviewability of a SIP
submittal, not its approvability. EPA will then promptly inform the sub-
mitting State by letter whether EPA will proceed to process the SIP revision
or whether it must be returned to the State because it is incomplete.
EPA is creating this completeness review process under the authority
of Section 301 of the Clean Air Act which authorizes the Administrator to
prescribe such regulations as are necessary to carry out his functions
under the Act. EPA is interpreting the terms “plan” in Section 11u(a)(1)
and (2) and “revision” in Section 110(a)(3) to be only those plans and
revisions that contain all of the components necessary to allow EPA to
adequately review and take action on such plan or revision. EPA believes
that Congress would not have intended to require EPA to review and take
action on SIP submittals that were simply not reviewable because they
were lackiny important components. Therefore, the Administrator concludes
that Section 110(a) requires him to act only on complete State submittals.
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EPA recently issued a guidance memorandum to the Regional Offices
establishing this completeness review procedure, including a list of com-
pleteness criteria, on an interim basis pending notice and comment rule-
making. See Memorandum, Gerald A. Emison, Director, Office of Air Quality
Plannin9 and Standards, to Regional Oftice Air Division Directors, March
18, 1988 (a copy is included in the docket as item II-B—4). The Regional
Offices are currently using this guidance to conduct completeness reviews.
However, elsewhere in today’s FEDERAL REGISTER, EPA is proposing to codify
these criteria in regulatory form to provide clear benchmarks for States in
preparing complete SIP submittals. Specifically, EPA proposes to add the
completeness criteria to 40 CFR Part 51 as Appendix V. EPA also proposes
to amend Section 51.103(a) to specify that State submissions will not be
considered official SIP submissions upon which EPA is required to act under
Section 110(a) unless they meet the requirements of Appendix V. The details
of the completeness criteria are described fully in the accompanying notice.
2. Letter Notice
EPA is creating a new SIP processing procedure for relatively insigni-
ficant SIP revisions that the EPA believes are of essentially no interest
to the general public. Historically EPA has processed all SIP revisions
through full notice and comment rulemaking in the FEDERAL REGISTER. For
insignificant actions of no public interest, this has been costly and time
consuming with no apparent benefit. Under the new letter notice procedure
for such insignificant revisions, EPA will simply inform the State and
directly affected parties by letter that the submitted SIP revision has
been approved. The EPA may not publish a notice of proposed rulemaking
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and opportunity for public comment or an individual notice of final rule-
making in the FEDERAL REGISTER.
EPA’S duties to publish proposed and final rulemaking notices and
provide opportunity for public comment stem from the Administrative
Procedures Act (APA). However, the APA specifically provides that an
agency need not provide notice of proposed rulemaking or opportunity for
public comment when the agency for good cause finds that it is impracticable,
unnecessary, or contrary to the public interest. See 5 U.S.C. Section 553(b).
EPA concludes that it is unnecessary to provide for comment on insignificant
SIP revisions because they are of no interest to the general public. Further,
in such cases, the delays associated with providing for comment where none
would be forthcoming would be contrary to the public interest in expediting
SIP processing.
The legislative history of Section 553 indicates that the good cause
exemption from notice and comment requirements appropriately applies to
insignificant SIP revisions. See Senate Corn, on the Judiciary, Administra-
tive Procedure Act: Legislative History, S. Doc. No. 248, 78th Cong., 2nd
Sess. 2UU (1946) (“unnecessary” means unnecessary so far as the public is
concerned, as would be the case if a minor or merely technical amendment
in which the public is not particularly interested were involved. “Public
interest” supplements the terms “impracticable” or “unnecessary”; it
requires that public rulemaking procedures shall not prevent an agency
from operating and that, on the other hand, lack of public interest in
rulemaking warrants an agency to dispense with public procedure). A
number of courts have also held that notice and comment procedures
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a e not required in analagous circumstances. See, e.g., National
Nutritional Foods Association v. Kennedy , 572 F.2d 377, 385 (2d Cir. 1978);
Texaco, Inc. v. FPC , 412 F.2d 740, 743 (3d Cir. 1979); United States v.
U.S. Trucking Co. , 317 F. Supp. 69, 71 (S.D.N.Y. 1970).
Although EPA will not seek comment on letter notice actions or
publish individual notices of final rulemaking, in order to keep the
general public informed of all SIP actions EPA will publish periodically
in the FEDERAL REGISTER a summary list of all actions taken under the
letter notice procedure. The effective date of all letter notice actions
will, however, be the date of the letter itself rather than that of the
subsequent summary FEDERAL REGISTER notice.
EPA will only use the letter notice procedure for insignificant SIP
actions such as recodifications or minor technical amendments that EPA
feels confident are of no interest to the general public. Further discussion
of the SIP categories to be processed under letter notice can be found
below in the implementation section of this notice.
3. Increased Use of Direct Final
For some time EPA has used a SIP processiny procedure referred to
as direct final rulemaking. In the past, EPA has generally used this
procedure mostly for insignificant actions that it considered noncontro-
versial and on which EPA did not anticipate receiving any adverse comment.
EPA is now expanding the use of this historically effective direct final
procedure to speed processing for a wider range of such minor SIP actions.
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Under the direct final procedure EPA still continues to offer the opportunity
for public comment as required by the APA. As before, the procedure merely
provides a shortcut for final action where no comment is expected. Moreover,
those insignificant SIP actions which are truly of no interest to the
public will now be processed under the letter notice procedure described
immediately above. Further discussion of the potential categories of SIPS
to be processed under the expanded use of direct final procedures is included
below in the implementation section.
4. SIP Decision Authority
Historically, all SIP revision actions have been thoroughly reviewed
at both the Regional Offices and Headquarters, whether or not the action
involved was truly of national significance. This has led to the greatest
delays in the SIP processing system, and the task group assessment indicated
that overall such duplicative review did not appear to contribute substantially
to improved SIP content in many cases. The EPA has concluded that all SIP
actions that are not nationally significant, and for which Headquarters has
prepared guidance for SIP processing, will now be reviewed only at the
Regional Offices, Consequently, the Administrator is delegating his authority
under Section 110(a) of the Clean Air Act to act on such SIP submittals to the
Regional Administrators. Both proposed and final FEDERAL REGISTER notices
for these actions will henceforth be signed by the Regional Administrators.
Section 301(a)(1) of the Act authorizes the Administrator to delegate
any of his powers and duties under the Act to other EPA employees except
11 the making of regulations.” In an early interpretation of this statutory
22

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provision EPA concluded that, while proposed SIP rulemaking did not constitute
“the making of regulations”, any final action on a SIP would fall within
this prohibition. Upon further reflection, EPA now concludes that the
prohibition on delegation applies only to regulations initially promulgated
by EPA, not to plans prepared by States that EPA merely approves or disapproves.
The natural reading of the statutory phrase “the making of regulations”
extends only to regulations that the Administrator himself promulgates.
Although in approving a SIP revision the Administrator does incorporate State
promulgated regulations into tne federally enforceable SIP, he still cannot
properly be said to be “making” regulations within the meaning of the Section
301(a) prohibition on delegation. As a practical matter, EPA has acquiesced
in those judicial decisions holding that EPA must follow the rulemaking pro-
cedures of the Administrative Procedures Act (APA), 5 U.S.C. §553, when it
approves or disapproves State implementation plans. However, even if SIP
review is “rulemaking” under the APA, EPA believes these actions do not
constitute “the making of regulations . . .“ Thus, while Section 301(a)(1)
of the Clean Air Act prohibits the Administrator from delegating his authority
to make federal regulations, it does not prohibit delegation of his authority
to act upon regulations made at the State level.
The implementation section of this notice contains a detailed listing
of those categories of SIP actions that the Administrator currently is
delegating to the Regional Administrators, those categories the Administrator
is delegating but which should still receive some input from Headquarters
at this time, and those categories that will continue to receive full
Headquarters review for the time being. These categories may change over
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time as Headquarters prepares additional guidance and Regional Offices
become more familiar with new issues.
B. Improve Certainty of Process
The second major focus of EPA’s changes in the SIP processing system
is to improve processing procedures so that individual actions can be
handled with greater certainty. These changes involve increased management
control and clarified processing guidelines.
1. Adherence to Formal Procedures
EPA has for some time had detailed procedures tor processing SIPs
through the existing SIP review system. These procedures include time
schedules, default provisions, and issue resolution mechanisms. However,
for a number of reasons these procedures have often not been followed
precisely in the past. With the adoption of the processing reforms described
herein, EPA will be revising its procedures to establish guidelines for
each type of SIP review mechanism. When the new guidelines are issued,
senior management will make clear that in the future they are to be adhered
to more rigorously. This will ensure that State subrnittals move quickly
through EPA’s review process, with any major issues being raised promptly
for resolution.
2. Grandfathering Policy
In the past, a number of States have submitted SIP revisions that
were consistent with EPA requirements (regulations, policies, legal inter—
pretations, etc.) in effect at the time of State adoption of the revision.
However, in some cases, because of processing delays and policy evolution,
the applicable requirements would change before the revisions received EPA
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approval. The EPA’s past procedure was to return the plan to the State
for revision or disapprove the action. Not only did this add more time to
an a ready lengthy process, it also strained EPA/State/local agency rela-
tions. Moreover, there was the basic question of fairness involved. In
such cases, the State submitted the revision in good faith and in accordance
with the rules and policies in effect at the time of submission, only to
see months go by and find out the chanye was rejected due to factors totally
beyond its control.
EPA has determined that in general it would better serve the States
and the interests of the SIP processing system to continue to process most
State submittals based on the requirements in effect at the time the State
adopted the change to the SIP. To this end, EPA recently issued guidance
on grandfathering entitled “Grandfatheriny of Requirements for Pending SIP
Revisions”, sent from Gerald Emison, Director, OAQPS, to EPA Regional
Office Air Division Directors, June 27, 1988 (a copy is included in the
docket as item II—B-5).
The guidance provides a structure for grandfathering pending SIP
actions to the extent allowed by law. The law in this area indicates that
whenever a new requirement is created by Congress (via statute) or by EPA
(via regulation or policy), it becomes generally applicable unless the
authority establishing the requirement provides otherwise. When Congress
enacts a new statute, it applies to all matters then pending before an
agency unless Congress specifically provides otherwise in the statute. The
EPA has no authority to grandfather any matter from the new statutory
requirements without explicit provisions in the statute.
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When EPA issues new regulations, they are also generally applicable
unless the regulations themselves include grandfathering provisions. If
grandfathering provisions are not explicit in the regulations, courts will
apply the new rules to matters pending before EPA. Thorpe v. Housing
Authority of Durham , 393 U.S. 268 (1969). However, an agency does have
some flexibility to provide grandfathering provisions in new regulations.
Such provisions are usually appropriate where they meet a four-part test.
First, the new rule represents an abrupt departure from well—established
practice. Second, affected parties have relied on the old rule. Third,
the new rules impose a large burden on those affected. Fourth, there is
no strong statutory interest in applying the new rule generally. Sierra
Club v. EPA, 719 F.2d 436 (D.C. Cir. 1982), cert. den. 468 U.S. 1204 (1984).
In the past, EPA has included explicit grandfatheriny provisions in new
regulations where appropriate.
An agency has broad authority to decide how and when to issue
new guidance, since as a purely legal matter guidance is not absolutely
binding on subsequent proceedings. Pacific Gas and Electric Co . v. FPC,
506 F.2d 33 (D.C. Cir. 1974). Historically, however, EPA has provided
only limited grandfathering from significant guidance primarily due to
the importance of the new guidance to EPA’s control programs.
EPA’s expanded grandfathering guidance states that complete pending
SIP actions generally should be subject only to the requirements in effect
at the time the State submittal was prepared. However, the guidance
includes a number of exceptions to the general rule. The EPA would
not grandfather a pending action where a court ruling has changed a
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requirement, where a court has convinced EPA that a requirement is no
longer supportable, where the Administrator determines that yrandfathering
is not appropriate, where an imminent and substantial adverse environmental
impact would result, where grandfathering would foreclose EPA’s ability to
exercise its authority under the Clean Air Act, or where the State has not
acted in good faith in submitting a plan.
The guidance also states the EPA will analyze the need for grandfather—
ing provisions in all new EPA requirements, and will include such provisions
in all cases to the extent appropriate.
3. Improved Guidance and Communication
In order to facilitate implementation of the various SIP processing
changes EPA is instituting, existing guidance will be upgraded and
new guidance prepared wherever needed. Headquarters offices have committed
to provide adequate guidance to Regional Offices and to be available for
consultation to assist the Regions in implementing the new programs.
EPA will also be improving communications between Headquarters and
Regional Offices, and among different Regional Offices, to effectively
implement the decentralized SIP processing system. Improved communication
techniques, described in the implementation section, include identifying
regional SIP contacts, the “regional staff expert” concept, a SIP clearing-
house, a computerized tracking system, periodic conference calls, and
national meetings.
4. SIP Processing Management System
The final change EPA is instituting in the SIP processing system
is a new SIP processing management system. Under this system EPA managers
will maintain close supervision over the SIP processing system to ensure
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that SIPs move smoothly tflrough the new procedures. The new management
system, described in full in the final section of today’s notice, includes
both an internal and external audit system, an expanded computerized track-
ing system, and a SIP processing deviation review system.
Implementation of the Changes
The following discussion focuses on the more significant aspects of
the implementation of the SIP processing changes announced today; the final
portion addresses improvements in the management system which are being
instituted to assure the announced changes are properly implemented.
A. Tailor Review to Significance of Action
1. Completeness Criteria
Screening criteria have been developed that define the essential
elements of an acceptable SIP package, that will avoid obvious inadequacies,
and that can be applied uniformly with limited subjective judgment and
review. The criteria were developed by EPA Regional Offices already
using a list of criteria to determine completeness of SIP packages in an
informal way. The benefits of using completeness criteria to reject
deficient packages include improved consistency and quality in the State
submittals received for processing, fewer SIPs disapproved for fundamental
Inadequacies, more effective use of limited resources at both the Federal
and State level, and improved guidelines for new State personnel on how to
prepare adequate SIPs. As noted earlier, an interim policy for determining
completeness of SIP submittals was issued to the EPA Regional Offices. The
policy includes basic criteria for determining completeness, and sample
letters for accepting and rejecting SIP submittals.
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In a separate notice in today’s FEDD(AL i EGISTER, the Administrator
is proposing to add these criteria and procedure for determining the
completeness of State submittals to 40 CFR Part 51. EPA will continue to
use the interim policy to assess SIP submittals until final rulemaking
action is taken on today’s accompanying proposal.
The criteria for determining whether a submittal by the State is
complete have been separated into two categories: (a) administrative
information and (b) technical support information. Administrative infor-
mation includes the documentation necessary to demonstrate that the basic
administrative procedures have been adhered to by the State during the
adoption process. Technical support information includes the documentation
that adequately identifies the technical components of the plan submission.
2. Letter Notice
Using a letter notice for non—substantial actions, which EPA will
begin doing after today, is a new process wherein EPA will merely inform
a State and directly affected parties by letter that EPA has approved a
given SIP revision. The objective of the letter notice approach is to
achieve prompt action by EPA on non—substantial actions where the public
interest is not served by full notice and comment processing. By using
letter notices, EPA’s limited resources can be allocated to the expedi-
tious processing of more significant SIP actions.
Under letter notice, as soon as a revision has been deemed approvable,
the Regional Administrator or his designee will send a letter to the State
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and affected parties, informing them of the approval. The EPA may not
publish a notice of proposal and provide an opportunity for public comment
beyond that already provided for by the State. In order to keep the
public informed of these actions, EPA will publish periodically (annually
at a minimum) in the FEDERAL REGISTER a summary list of all letter notice
actions recently taken, with information concerning the change and the
sources affected, as appropriate. These actions will be effective from
the date of the letter notice, rather than the eventual summary publication
date. The Regional Offices will make the decision whether to process a
SIP revision as a letter notice.
EPA intends to use discretion in the application of letter notice
processing to insignificant SIP revisions. The following are examples of such
revisions. Frequently, States/local agencies will recodify existing
regulations into a new structure or to improve the understanding of the
program. These changes are superficial from the perspective of the air
quality management program and are of little interest to the general
public. Other revisions to implementation plans incorporate amended or
revised national guidance documents pursuant to EPA directives and are
made merely to conform to revised requirements. In other cases, many
States have programs using renewable operating permits for the purpose of
source regulation. Usually, the permit is renewed without change and the
permit action is of little public interest.
Technical amendments, administrative actions, and minor wording changes
are further examples of SIP revisions that are suitable for processing by
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letter notice. It is expected that the list of SIP revisions that can be
processed by letter notice will be expanded as experience is gained with the
process. EPA specifically requests comment on the appropriateness of using
letter notice processing for these and other potential categories.
3. Increased Use of Direct Final
On June 23, 1982 (47 FR 27073), EPA announced procedures to shorten
and streamline the SIP review process. One of these procedures was the
direct final rulemaking approach. This program has been shown to reduce
the SIP processing review time by about 50 percent. Since its inception,
many revisions have been published as direct final rules with very few
receiving notice from the public of the desire to comment. The following
are some types of SIPs that have been processed successfully as direct
finals:
o Amendments to definitions to conform to EPA requirements
o Changes in monitoring/modeling procedures to reference new EPA
guidelines
o Revisions to incorporate new test methods by reference
o Single source SIP revisions that make a State’s requirements more
stri ngent
o Public availability of emissions data
o Permit fees
o Compliance schedules for Section 111(d) plans
o Visibility plans
O Volatile organic compound (VOC) consent orders
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o Prevention of significant deterioration (PSD) modeling regulations
o Minor changes to inspection and maintenance (I/M) programs
o New opacity regulations
o Variances
o Operating permits for lead SIPs
Of 134 SIP revisions processed most recently as direct finals, only two
required republishing as proposed rules because of public comment. This
history of very little public comment on direct final rules suggested
tflat EPA could use this effective tool more often to speed up the SIP
process.
For this reason, EPA issued a memorandum dated December 23, 1987
entitled “Expanded Use of Direct Final SIP Processing,” from Gerald A.
Emison, Director, OAQPS, to EPA’s Regional Offices (a copy is included in
the docket as item II—B—2). For the reasons stated above, this memorandum
recommended that the direct final rulemaking approach could be used more
frequently by the Regional Offices. It is possible that EPA’s plan to
expand the application of the direct final rulemaking approach may result
in an increase in the number of SIPS being withdrawn and subjected to
full notice and comment rulemaking because of the desire by the public to
comment. However, any increase in the number of direct final actions
withdrawn and converted to proposals should be more than offset by the
overall improvement in timely processing of total SIP actions.
4. SIP Decision Authority
A cornerstone of the recommendations of the SIP processing task group
is the tailoring of review to the significance of the change. To this end,
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the Administrator is today delegating signature authority for those SIP
revisions that are not of national significance to the EPA Regional Admin-
i strators.
Eliminating the serial review by the Regional and Headquarters
offices for selected categories of SIPs is potentially the most effective
recommendation made by the task group. This recommendation is designed
to delegate approval/disapproval authority for tile majority of SIPs to
the Regional Administrators. As noted earlier, all SIP revisions have
received both Regional Office and Headquarters review in the past. The
Regional Office would review the State submittal and prepare a recommenda-
tion to Headquarters either ap .iroviny or disapproving a rulemaking action.
The implementation plan revision would then be forwarded to EPA Headquarters
for another round of technical, legal, and policy review. Except for
those SIPs processed as direct final rules, all proposed and final rules
receive the full Regional Office and Headquarters review. Historically,
the second level Headquarters review rarely changed the final recommendation
of the Regional Office, although it often contributed to the legal and
technical rationale for an action.
Certain plan revisions clearly can have a significant impact on the
implementation of national programs, such as basic strategies for demon-
strating attainment with ambient standards. In addition, there are
programs where a high level of national consistency is important, or which
involve emerging programs where major issues on program implementation may
as yet be unresolved. Such actions should receive both a Regional Office
and a Headquarters review; the latter will ensure consistent policy appli-
cation for these nationally significant SIPs. SIP actions which initially
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will continue to be decided by the Administrator are listed in Table 1.
This 1ist and the other lists described below are not intended to be permanent——
that is, SIP categories may be shitted among them over time. For example,
it is EPA’s intention to delegate some of the SIP categories on Table 1 to
the Regional Administrators as experience with the new process is gained
and policies mature. Conversely, if the Regional Offices have difficulty with
a delegated category, such SIP actions may be withdrawn from deleyation and
be subject to full Headquarters review.
A second category of SIP revisions, listed in Table 2, are actions
where some Headquarters review is deemed appropriate prior to final
action. This category was developed to address those SIPs where guidance
is relatively new and thus it is prudent for Headquarters to monitor the
decision process at the Regional Office level. This category serves as a
transition between Headquarters review and Regional Office review and will
provide an opportunity for Headquarters oversight without addiny a signi-
ficant review requirement. Although the Regional Administrators will
have decision authority for these SIPs, the Headquarters offices will
have 30 days from the date the SIP revision package (including the draft
FEDERAL REGISTER notice and support material) is received at Headquarters,
to prepare and send coments to the Regional Office. This review is not
intended to be a veto authority by Headquarters but rather to provide
Headquarters reviewers an opportunity to provide coments to Regional
Office decisionmakers.
Decision authority for all remaining SIPs is being delegated to the
Regional Administrators, with no requirement for consultation with
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TABLE 1
The following SIP actions must undergo full Regiona1
Office and Headquarters review, with decision and
signoff by the Administrator (proposed and final):
o 03 redesignations and 03 attainment plans (including I&M programs)
o CO attainment plans dealing with area—wide problems
o CO redesignations except those relating to point—source only
problems or hot spots
o Group I PM 10 plans (attainment demonstrations) including those
resulting from commital SIPs
o New area-wide VOC regulations (e.g., per CTG requirements, or Post-87
requl rements)
o VOC revisions with long—term averaging (i.e., greater than 24-hour)
o SO 2 revisions involving (a) unresolved national issues (e.g., stack
height remand, statistical attainment demonstrations, expected
exceedances methods); (b) more than one Regional Office; (c)
international issues.
o sip revisions proposing or revising State—developed air quality
dispersion model yuidelines, and SIP revisions based on the use of
non-approved models or deviations from EPA ’s modeling guidance.
0 SIP revisions where EPA is under a court-ordered schedule (e.g.,
Indiana SO 2 SIP)
° so 2 Statewide plans (all elements)
° SIPs for new generic State-wide programs (e.g., bubbles, PSD/NSR)
° PSD/NSR SIPs submitted to comply with Post—Si 0 3 /CO policy
° PSD/NSR SIPs for PM 10 group I areas
0 PSD/NSR SIPs submitted to comply with Alabama Power decisions
o Bubbles which trade off growth allowances
0 Visibility plans that address existing impairment
° Any FtP
o Any action proposing or imposing a sanction
° Any SIP revision, approval/disapproval of which would significantly
deviate from national policy
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TABLE 2
The following SIP actions are delegated for Regional
Administrator decision and signoff (proposed and final)
but require a 30—day opportunity for Headquarters’
review before signoft.
o Particulate matter emissions relaxations
o voc revisions with extended compliance schedules affecting
nonattainment areas
o Co attainment plans dealiny with hotspots
0 Co redesignations relating to point—source only problems
and hot spots
0 502 area-wide and source—specific SIP revisions and redesigna-
tions, where the source(s) or background sources in the aggregate
have allowable emissions of 25,000 TPY or more (except primary
nonferrous smelters or emission trading)
o 502 revisions with (a) averaying times greater than the short-term
SOZ NAAQS; (b) revised emission limits due to changes in stack
height credits
o Visibility SIPs involving regional haze
o Direct final rulemaking in categories identified for Administrator
siynoff (See Table 1)
0 Any other action not listed elsewhere
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Headquarters prior to signoff. The primary criterion used to judge which
SIPs could be delegated to the Regional Administrator for decision was
the significance of the action. Another criterion was the availability
of appropriate policy memoranda/guidance to the Regions for making decisions
on the approvability of a SIP. The categories of SIPS initially to be
delegated to the Regional Administrator for final approval authority are
listed in Table 3. Although these revisions are being delegated for the
Regional Administrator’s signature, the Headquarters SIP reviewers will
be available for discussions with the Regional Offices on any of the
categories of SIP revisions. The Regional Offices also have the option
of sending SIP submissions which come under any of these categories to
Headquarters for the full review, especially where the Regional Office
reviews indicate that national issues may be of concern.
SIP issues (and revisions) in categories of potential national signifi-
cance will continue to be reviewed in Headquarters and signed by the
Administrator. The categories of SIPs delegated to the Regional Administrator
for decision and sign—off are inherently localized in scope and do not
have potential for national impact. (Obviously, an unusual SIP revision
in a delegated category could involve broad issues; the changes in procedure
announced today provide for full consultation between the Regional Office
and Headquarters, and even for the forwarding of such an unusual action
for full Headquarters review.) Thus, except for unusual cases, decisions
made by a Regional Administrator will be based on local factors, reflect
local issues, and may indeed yield varying results, although Regional
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TABLE 3
The following SIP actions are delegated for Re9ional
Administrator decision and signoff (proposed and final).
Headquarters review is not required but may be requested
by the Regional Office.
0 All other bubbles and all other single-source regs.
° VOC extended conpliance schedules (except
those affecting nonattainment areas)
o PM 10 Group II and III SIPs
0 TSP redesignations
° Lead attainment plans and revisions
o All other SO 2 SIPs, including redesignations; ambient
monitoring plans; malfunction rules; State AAQS
0 State stack height regulations and negative declarations
0 All other PSD/NSR SIPs
0 All other visibility plans
0 111(d) plans/negative declarations
0 All other direct final rulemaking
o All letter notice actions
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Offices will apply policies consistently. Such decisions are, therefore,
intended to be non-transferable, i.e., do not set precedents for other
Regions. For example, an emission limit for a particulate matter source in
a State may require a specific value to conform to the Statess demonstra-
tion of attainment. The same type of plant in another State, however,
might have a different limit imposed based on its location and
site—specific factors. In short, it is expected that the outcome of the
decision process for similar SIP actions can vary from Region to Region.
Each such local action must be judged on its own merits. This is acceptable,
provided that national policy and guidance applicable to such actions are
applied consistently by all Regions involved.
To provide the Regional Office with the necessary support, EPA is
completing a comprehensive compilation of policy statements, guidance, and
memoranda applicable to those actions where significant Ueadquarters review
is being eliminated. Moreover, to maintain oversight of this decentralized
process, EPA will institute more intensive management systems, designed
to ensure national consistency in policy application (see discussion on
Management Systems later in this notice).
B. Improve Certainty of the Process
1. Adherence to Formal Procedures
Detailed procedures exist for processing and reviewing SIP revisions.
Among other things, the procedures provide for firm schedules, default pro-
visions, and mechanisms for issue resolution. The procedures frequently
are not followed for a variety of reasons. In some cases, a Regional
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Office may believe that informally working/negotiating with the State would
provide information or result in changes to the submission that would
enable EPA to approve the plan revisions. This can occur because there is an
inherent reluctance by reviewers to disapprove a plan into which a State
or local agency has put considerable effort. The goal of this informal
approach was to enhance the relationship with the State, although the
ultimate effect may have been the opposite.
The current guidance and procedures for SIP processing are being
reviewed, modified as necessary to stress the need for more formal imple-
mentation, and will be republished with a clear senior management directive
on their importance. Further, the management system described below will
help ensure that the reviewing offices follow the formal procedures.
This, along with increased management attention to the SIP process,
should enable those interested in the results of the SIP review process,
internally and externally to EPA, to follow more effectively the progress
of individual actions.
2. Grandfathering Guidance
EPA issued yrandfathering guidance to the Regional Offices as described
earlier. The guidance is to be considered in each rulemaking action on a
SIP revision and in all new or revised requirements for SIPs issued by
EPA. EPA believes that it deals with the fairness issue, will not have
noticeable environmental impact and will strengthen EPA’s working relation-
ships with the States and local agencies. Under the guidance, a SIP
revision may remain subject to the requirements in effect generally on
the date of State adoption of the change. The decision to grandfather
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will be made by either the Administrator or the appropriate Regional
Administrator where decision authority has been delegated.
All SIP revisions potentially subject to grandfathering will be
reviewed to determine to what extent the submission complies with the new
and revised requirements. For such revisions, EPA will address the
impact of the grandfathering decision (positive or negative) in the SIP
rulemaking action. In addition, the basis for grandfathering future
submittals will be described in all new requirements issued by EPA,
addressing the impact on previously a .iproved, pending, and newly sub-
mitted SIPs. Such grandfathering provisions generally will have
effective dates which are 60 days from the date of signature to allow
States to have a reasonab1e time to complete processing and submit revisions
to EPA that may be subject to grandfathering.
Although grandfathering will be considered whenever possible, balancing
equity considerations and short-term environmental impacts, it is not
automatic and may not be appropriate in all circumstances. These include
situations where:
1. the State has not acted in good faith in submitting a
plan;
2. a court ruling has changed a federal requirement or has con-
vinced EPA that a previous requirement is no longer supportable;
3. the Administrator determines that it is not appropriate to
grandfather under a new EPA policy;
4. a decision to grandfather would have an imminent and substantial
adverse environmental impact or foreclose the ability of EPA to
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exercise its authority under the Clean Air Act (e.g., apply
sanctions under Part D).
This guidance builds on existing grandfatflering guidance (e.g., air quality
dispersion modeling) to establish the general concept of grandfathering
where equity dictates such action.
Where yrandfathering would render the SIP as a whole substantially
inadequate to protect the NAAQS or otherwise to comply with the Act,
grandfathering may be allowed only if justified by an individual analysis
under the four—part Sierra Club test described earlier, and the grand-
fathered action would have only a limited life (generally two years).
Within that time, the grandfathered revision must terminate (e.g., expira-
tion of a temporary variance), or the State must submit a complete, approv-
able revision to the SIP to bring it into full compliance with all statutory
requi rements.
3. Improved Guidance and Communication
Improved guidance and communication is basic to improved certainty
in SIP decisionmaking. Many of the recoimiendations of the task group on
SIP processing required new guidance from EPA Headquarters before they
could be implemented. These include: the completeness criteria; increased
use of direct final; letter notice for nonsubstantial actions; and signa-
ture authority for the Regional Administrators. All of these items are
discussed elsewhere in this notice.
Loyically, when the final sign-off authority is delegated to the
Regional Administrator, up-to—date policy and guidance pertinent to the
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specific categories of SIPs should be assembled and made available to
Regional Office reviewers (see section on “SIP Approval Authority” for
categories of SIPs). The necessary guidance is being assembled for those
categories of SIPs for use by the Regional Offices in the absence of
Headquarters review. In addition, alternatives for more timely and
systematic update of such guidance are being explored.
Complete and up-to-date guidance is a traditional form of communica-
tion between EPA Headquarters and the Regional Offices. EPA recognizes
that effective communication will become more important with the implemen-
tation of the SIP processing reforms announced today, not only between
Headquarters and the Regional Offices, but also between the Regional Offices
themselves. It is essential that information on SIP review activities,
prob’ems and problem resolution be shared promptly by Headquarters and
the Regions so that consistent application of policy and guidance can be
assured. Several actions are underway in this regard.
The existing SIP tracking system, “SIP TRAX,” which presently only
follows SIP submittals from their receipt at Headquarters, is being expanded
to track a SIP submittal from receipt by the Regional Office to ultimate
disposition,(see further discussion under the “Management System” below).
Data contained in the system will be refined and adjusted as experience is
gained under the new .irocedures. In parallel with this tracking system
change, greater emphasis will be placed on the “key SIP contact” persons
in the Regional Offices. Already in place, these persons will have
expanded responsibility as the Regional Offices do more of the decision
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making on SIP submittals. It is expected that more frequent use of conference
calls, between some or all Regions, will be made, and a workshop on SIP
processing issues will be instituted in conjunction with the Headquarters/
Regional Office air program staff conference he1d annually in North Carolina.
To assure that effective dialoyue takes place periodically, EPA
is examining the establishment of a Regional Office SIP Council. Such
a Council would be composed of Regional Office SIP review staff, chaired
on a rotating basis by one of the offices. The chair would establish a
meetiny frequency (by teleconference) which could be monthly or at some
similar regular period. The purpose of the meetings would be for each
Region to discuss SIP processing activities for the period, to highlight
unusual issues that arose, and to identify/resolve points of contention
between Regions. Headquarters staff would participate in these Council
meetings as advisors and to provide policy/technical expertise. Signi-
ficant results of such meetings would be posted on an electronic bulletin
board for future reference and guidance.
Other initiatives are being considered. These include creation of
“policy flotlines” establishing Headquarters experts in various program
areas to provide quick response to Regional Office inquiries. As an
extension of this concept, Regional Office “experts” are expected to
emerge over time who would serve the same function for their colleagues.
Although the full scope of improved coninunications techniques has not been
fully defined at this time (indeed, should never be finalized since
conii unications flow inherently should be dynamic), EPA is aware of the
importance of this function and is giving it high priority.
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4. SIP Processing Management System
Effective management of the SIP review process within EPA, including
review by both the Regional Offices and Headquarters, is vital to ensure
that implementation plans submitted by States are processed expeditiously.
As part of this action to improve SIP processing within EPA, the management
system is being revised to monitor the processing of implementation plan
revisions under the changes described today. A basic goal of this revised
management system is to ensure an appropriate degree of consistency between
all reviewers in interpreting and implementing the SIP processing guidance
and air quality management program policy. The management system will also
evaluate the reviewers’ conformance to estab1ished review procedures. In
addition, an outgrowth of the management system will be the identification
of issues and problems in implementation plan guidance, policies, and
procedures at both Headquarters and Regional Offices. With such information,
EPA can ensure the timely update of policy and processing guidance.
The management program is designed to ensure the adequacy of the
processing procedures and to facilitate the review of implementation plans.
Identification of program deficiencies is not intended to result in
recriminations but to improve the process. The effect of the improved
management program should be increased public confidence in the air quality
management program, and more certainty on the part of States and industry
regarding the operation of the SIP review process.
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Audits
A key feature of the management system is the development of an audit
program. The audit program is designed to review actions, generally after
processing is complete and final action is taken, to determine whether
processing procedures and program policy have been adhered to during the
review of the implementation plan. It is not the intent of the management
program to review, or second-guess, every SIP action that is processed
within EPA.
The frequency of program audits will be based upon several factors.
One factor is the total number of implementation plan revisions processed by
a particular office. This is important because significant processing
deviations are more likely to result when the number of actions is high.
A second factor to be considered in determining the frequency of the audit
cycle is the type of actions processed—-newly implemented programs with a
significant level of complexity should receive greater attention than
programs which are well established. Another element in determining the
frequency of audits will be the prior performance of the reviewing office.
Those that have demonstrated problems should receive greater attention and
thus more frequent audit than areas with demonstrated capabilities. As a
corollary, in addition to examining performance of specific organizations,
the audit program will identify program areas where several organizations
are demonstrating a lack of understanding, indicating the possible need for
improved guidance.
The audit program must be designed such that the interval between
audits is not too lengthy. With reasonable frequency, the management
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system must be able to obtain an overview of the basic program and the
personnel responsib’e for implementing the program. Such a review is
necessary to ensure that the skills and knowledge to effectively process
all types of plan revisions are maintained; this is necessary even where
few a id/or routine plan revisions are received.
The audit program will employ two basic sources of information:
(1.) records and documents submitted or prepared as part of the formal
submittal and review process; and (2) discussions with the individuals in
Headquarters and/or Regional Offices involved with processing of plans in
general and associated with specific SIP actions. Through review of the
processing documentation and the implementation plan submittal, the auditor
can determine independently the procedures followed, how specific policies
were applied, conformance to national policy and guidance, etc. Discussions
with the individual responsible for the processing and review of SIP actions
will provide information related to deficiencies that exist in the processing
guidance, difficulties in conforming to program policy for specific actions,
and elements missing from EPA guidance that should receive attention at the
national level.
The Regional Offices will need to maintain the full documentation and
history of each SIP action processed. In the majority of cases this will
not result in any extra work load since most of this information is contained
in the files already maintained by the appropriate Regional Office. In
addition to the currently maintained manual records, EPA intends to expand
an operational microcomputer-based system for maintaining the status of
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currently active implementation plans. The current system tracks SIP
revisions for maintaining the status of SIP actions upon receipt of the
package by Headquarters and contains no information on plan revisions at
the Regional Office; the system will be expanded to maintain information
on the status of SIP actions under review by any EPA organizational element.
This will permit the rapid transfer of information between Regional Offices
and Headquarters on the status of all actions which are active within EPA.
There are two types of audit functions anticipated by this program-—
internal and external. An internal program audit involves the routine
audit of the SIP review process by those individuals within the reviewing
organization who are directly responsible for the review of the SIP. This
internal audit will occur at both Headquarters and the Regional Offices on
an ongoing basis. Rather than mandate the procedures to be used by each
Regional Office and appropriate Headquarters office for the internal audit,
each office will establish audit procedures that are appropriate based upon
resources, capabilities, and the nature of SIP revisions processed. For
example, it may consist of senior staff familiar with the program require-
ments reviewing a selected portion of the revisions processed by the SIP
review staff. The Regional Offices will focus their internal audit efforts
on those actions to be signed by the Regional Administrators.
The external audit is designed to obtain an independent overview
of the program. This audit will be conducted by Headquarters individuals
with experience in SIP review but who do not take an active role in the
process. The external audit will address all facets of the program including
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adherence to processing procedures, interpretation of EPA policy, the
impact on air quality management, and the effectiveness of the revised
procedures in expediting the processing of State submissions. In addition,
Headquarters offices will be audited on how well new policy is distributed
and explained to the Regional Offices. Audit guidelines will be developed
and distributed to all offices responsible for SIP review, identifying in
advance the major points of emphasis in the audit program. The external
audit will examine not only program deficiencies but also the positive
aspects of implementation of the program, providing a report both on how
program deficiencies can be improved and on how innovative solutions have
increased the efficiency of the SIP review process. An important output of
the audit program is the identification of training needs for those indivi-
duals responsible for SIP review.
Recordkeeping System
As previously mentioned, EPA has implemented a microcomputer based data
system for tracking the progress of SIPs during Headquarters review. This
system, “SIP TRAX,” currently tracks specific milestones of the Headquarters
review process. These inc1ude:
(1) when the revision was received in Headquarters;
(2) date of staff concurrence;
(3) date of approval by the Assistant Administrator/Administrator;
(4) date published in the FEDERAL REGISTER.
The system is accessible by the Regional Offices through a microcomputer-
based bulletin board system and is updated on a weekly basis. SIP TRAX
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will be expanded to incorporate the initial phases of SIP review that occur
in the Regional Offices before the implementation plan is forwarded to
Headquarters for review. This is important since the process of transfer
of SIP decision responsibilities will result in many SIP actions not coming
to Headquarters and thus would not be entered in a system tracking only
Headquarters review.
There are several reasons for maintaining such a system. In order for
the various Headquarters offices responsible for program development to
maintain a sense of the major SIP issues being addressed, a method of
summarizing SIP actions processed is necessary. The development of a data
base system that can provide such information will reduce the resource
burden of soliciting input from the Regional Offices. In addition, EPA is
frequently asked about the specific status of implementation plan revisions
in process by the public, industries, and members of Congress. Since
the system will be regularly updated to contain information on all SIP
actions, the data base will be more complete and accurate than one
solely relying on Regional Offices’ responses to periodic inquiries.
Overall, an integrated system will allow EPA to determine more accurately
the status of, and time and resource commitments allocated to, SIP review
wherever it occurs.
Processing Deviations
In addition to the basic program oversight, an important function of
the audit will be to identify those circumstances where deviations from
processing guidance have occurred. These processing deviations will be

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examined from the perspective of the potential impact of the action. The
identification of processing deviations could result in varying responses,
ranging from simple improvements in the review process to those few cases
expected where the State may be required to submit a corrective SIP action
to resolve a deficiency. The specific corrective action to be taken will
be determined on a case—by—case basis.
The majority of implementation plan revisions submitted by States are
associated with source specific actions, are administrative in nature, or
are in direct response to EPA mandates to incorporate explicit regulatory
provisions or language. In most cases, the environmental effect of SIP
processing deviations are expected to be insignificant, and thus there
should be no need to require the State to submit additional information or
to make further revisions to a specific submittal. However, for recurring
problems, the State will be notified that a particular aspect of submitting
implementation plan revisions should be modified to avoid the problems
I denti fled.
More important deviations may include actions where the potential
exists for significant environmental impact. As previously stated, SIP
actions that are likely to affect the program on a national basis will
receive full EPA review and decision by the Administrator. As a result,
the actual number of environmentally significant deviations should be
limited. Nevertheless, the audit process is designed to identify such
situations so that appropriate actions to limit the impact can be taken
promptly. In these cases, corrective action will depend on the problem.
51

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For proposed actions, EPA may need to withdraw the proposal and reverse the
proposed approval/disapproval action. Alternatively, where EPA has fully
processed and approved a revision to the implementation plan, it may be
necessary to issue a notice of SIP deficiency requiring the State to submit
a revision to correct the identified problem. The response to each case
will be decided based upon the specific merits of the plan revision involved
and the potential environmental impact.
ADMINISTRATIVE REQUIREMENTS
The docket is an organized and coi plete file of all the information
considered by EPA in the development of these SIP processing chanyes.
The docket is a dynamic file because material is added throughout the notice
preparation and comment process. The docketing system is intended to allow
members of the public and industries involved to identify and locate docu-
ments so that they can effectively participate in the process. Along with
the statement of basis and purpose of the SIP processing changes and EPA
responses to significant comments, the contents of the docket, except for
interagency review materials, will serve as the record in case of judicial
review (see Clean Air Act, Section 307(d)(7)(A), 42 U.S.C. 7607(d)(7)(A)).
The effective date of these changes is [ insert the date of publication
in the FEDERAL REGISTER].
Section 317(a) of the Clean Air Act, 42 U.S.C. 7617(a), states that
economic impact assessments are required for revisions to standards or
regulations when the Administrator determines such revisions to be sub-
stantial. The changes described today do not change the substantive
52

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requirements for preparing and submitting an adequate SIP package. No
increase in the cost as a result of complying with the changes described
today is expected; moreover, the monitoring, recordkeeping, and reporting
requirements have been determined to be insubstantial. Because the
expected economic effect of the changes is not substantial, no detailed
economic impact assessment has been prepared.
The information collection requirements of these changes are considered
to be no different than those currently required by the Clean Air Act and
EPA procedures. Thus, the public reporting burden resulting from today’s
notice is estimated to be unchanged from existing requirements. The public
is invited to send coninents regardiny the burden estimate or other aspect
of information collection, including suggestions for reducing any burden,
to the docket and to the following: Chief, Information Policy Branch,
PM—223, U. S. Environmental Protection Agency, 401 M Street, S. W., Washing-
ton, 0. C. 20460; and to the Office of Information and Regulatory Affairs,
Office of Management and Budget, Washington, 0. C. 20503, marked “Attention:
Desk Officer for EPA.”
Under Executive Order 12291, EPA is required to judge whether an
action is “major” and therefore subject to the requirement of a regula-
tory Impact analysis (RIA). The Agency has determined that the SIP
processing changes announced today would result in none of the significant
adverse economic effects set forth in Section 1(b) of the Order as grounds
for a finding of “major.” The Agency has, therefore, concluded that this
action is not a “major” action under Executive Order 12291.
53

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This notice was submitted to 0MB for review consistent with Section
307(d) of the Clean Air Act. A copy of the draft notice as submitted to 0MB,
any documents accompanying the draft, any written convuent received from other
agencies (including 0MB), and any written responses to those coments have
been included in the docket.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601—612, requires the
identification of potentially adverse impacts of Federal actions upon small
business entities. The Act requires the completion of a regulatory flexi-
bility analysis for every action unless the Administrator certifies that
the action will not have a significant economic impact on a substantial
number of small entities. For reasons described above, I hereby certify
that the final rule will not have a significant economic impact on a sub-
stantial number of small entities.
Date Administrator
54

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44

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SUBJECT: CH fige ,to
Initially
FROM:
TO:
—UNjTED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
iG I 6 1990
Categories of State Implementation Plan (SIP) Actions
Published on January 19, 1989
William G. Rosenberg, Assistant , 1 at
for Air and Radiation (ANR-44 y
Regional Administrator, Regions I-X
The SIP reform initiatives were implemented in order to reduce the delays
in the SIP process and, thereby, improve the certainty of the process itself
(54 FR 2214, January 19, 1989). A cornerstone of the reform initiatives was
the delegation of final decision authority on selected categories of SIP
actions to the Regional Administrators From the start, these categories were
not intended to be permanent. Rather, it has been our intent to revise them,
as appropriate, especially when additional categories of SIP revisions could
be delegated for final decision authority.
Several Regional Offices have requested that we review the issue of
reclassifying final SIP actions where no adverse comments have been received.
Upon examination, we have determined that it would be approprip to
reclassify Table 1 actions that did not receive adverse comme nts on the
roposed rule as Table 2 final rule . Attached is a memorandum dated May 3,
19 rom Jo n a cagni to the Regional Air Division Directors entitled
“Supplemental Guidance on Processing Procedures for Final Rulemaking Actions,”
which outlines the reclassification process.
The delegation to the Regional Administrators was approved by the
Administrator on April 3, 1989. It states that the Assistant Administrator
for Air and Radiation will document any changes to the categories of SIP
actions by a memorandum to the Regional Administrators. By this memorandum,
I am approving this change to the SIP categories and fulfilling the
require,IJen in the delegation. Attached are the revised categories of SIP
actions--Tables i, 2, and 3. Specifically, an entry has been added to Table 2
which reads, STable I proposed actions can be processed as final Table 2 onji
when no adverse coninents were received on the proposed rule.”
If you have any questions on the reclassification, please contact
John Calcagni at (FTS) 629-5621.
&
;
MEMORANbLJM
OmcEop
AIR AND
,1
Attachments

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 2771 1
4j jmo t
MAY
MEMORANDUM
SU8JECT: Supple ce on Processing Procedures
FROM: for Calcagn
‘Mr Quality anage ,t Division (110-15)
TO: Director, Al>Ma .agement Division, Region III
Director, Air and Waste Management Division, Region 11
Director, Air, Pesticides, and Toxics Management Division
Regions I, IV, and VI
Director, Air and Radiation Division, Region V
Director, Air and Toxics Division
Regions VII, VIII, IX, and X
A basic purpose of the State implementation plan (SIP) reform Initiatives
• Is to reduce excessive EPA review and expedite the processing of revisions to
the basic SIP. It has recently been suggested that this goal might be further
achieved by reclassifying final SIP actions where little or no public coavnent
has been received.
Since the initiation of the SIP reforms on January 19, 1989, proposed and
final’ actions have been processed in the same category. Several Regional
Offices have requested that these procedures be reviewed where no adverse
public co ent was received on the notice of proposed rulemaking. The
question Is whether SIP actions which did not receive adverse coninents on the
proposal could be treated differently during processing of the final action.
After examining the issue of reclassifying final SIP actions, I believe
that It Is appropriate to permit Table 1 actIons that did not receive adverse
conaents to be processed as a Table 2 at final. As you are aware, Table 2 SIP
actions are required to be submitted to Headquarters for a 30-day review.
ConsequenUy, the Headquarters reviewing offices will still review the final
rule; however, review will be expedited.
This action Implements the basic intent of the SIP processing reforms.
After the Clean Air Act Amendments are passed and we gain experience with
current Regional Office procedures through the process’ program review, I feel
that a thorough review of the Tables will be in order. As appropriate, the
Tables will be revised at that time.

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2
In order to ens ire full public awareness of our action, the following
statement must be included In the final action:
Today’s action makes final the action proposed at ( Federal Register
citation). As noted elsewhere In this notice, EPA received no adverse public
coment on the proposed action. As a direct result, the Regional
Administrator has reclassified this action from Table 1 to Table 2 under the
processing procedures established at 54 FR 2214, January 19, 1989.”
Additionally, when you reclassify an action from Table 1 to Table 2,
please include a brief statement in the Action Memorandum under Procedural
Review to that effect.
Should you have any questions regarding the above, please call Johnnie
Pearson (FTS/629-5691) or Denise Gerth (FTS/629-5550).
cc: HQ SIP Reviewers
Chief, Air Branch, Regions I-X
Tom Helms
Bob Bauman
Steve Hitte
Ed Lulls
Johnnle Pearson
Denise Gerth

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Table 1
The following SIP actions must undergo full Regional Office and
Headquarters review 1th final decfsion and signoff by the Administrator.
Note that the authority to sign off on proposed rules has been delegated to
the Regional Administrators.
- 03 redesignations and 03 attainment plans (including I&tI programs)
- CO attainment plans dealing with areawide problems
- CO redesignations except those relating to point source-only problems or
hot spots
- Group I P 1 1-10 plans (attainment demonstrations) including those resulting
from coninittal SIP’s
- New areawide VOC regulations (e.g., per CTG requirements, or post-87
requirements)
- VOC revisions with long-term averaging (i.e., greater than 24-hour)
- SO, revisions involving (a) unresolved national issues (e.g., stack height
remand, statistical attainment demonstrations, expected exceedances methods);
(b) more than one Regional Office; (c) international issues
- SIP revisions proposing or revising State-developed air quality dispersion
model guidelines, and SIP revisions based on the use of nonapproved models or
deviations from EPA’s mode’ing guidance
- SIP revisions where EPA is under a court-ordered schedule (e.g., Indiana
SO 2 SIP)
- SO 2 Statewide plans (all elements)
- SIP’s for new generic Statewide programs (e.g., bubbles, PSD/NSR)
- PSD/NSR SIP’s submitted to comply with post-87 0 3 /CO policy
- PSO/NSR SIP’s for P11-10 Group I areas
- PSD/NSR SIP’s submitted to comply with Alabama Power decisions
- Bubbles which trade off growth allowances
- Visibility plans that address existing impairment
- Any FtP
- Any action proposing or imposing a sanction
- Any SIP revision, approval/disapproval of which would significantly deviate
from national policy

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lable 2
The following StP actions are delegated for Regional Administrator
decision and signoff (proposed and final) but require a 30-day opportunity for
Headquarters review before signoff.
- Particulate matter emissions relaxations
- VOC revisions with extended compliance schedules affecting nonattainment
areas
- Co attainment plans dealing with hotspots
- CO redesignations relating to point source-only problems and hot spots
- SO 2 areawide and source-specific SIP revisions and redesignations, where
the source(s) or background sources in the aggregate have allowable emissions
of 25,000 TPY or more (except primary nonferrous smelters or emission trading)
- SO 2 revisions with: (a) averaging times greater than the short-term SO 2
NAAQS; (b) revised emission limits due to changes in stack height credits
- Visibility SIP’s involving regional haze
- Direct final rulemaking in categories identified for Administrator signoff
(See Table 1)
- Table 1 proposed action& can be processed as final Table 2 only when no
adverse coninents were received on the proposed rule
- Any other action not listed elsewhere

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Table 3
The following SIP actions are delegated for Regional Administrator
decision and signoff proposed and final). Headquarters review is not
required but may be requested by the Regional Office.
- All other bubbles and all other single-source regulations
- VOC extended compliance schedules (except those affecting nonattainment
areas)
- PM-IO Group II and III SIP’s
- TSP redesignations
- Lead attainment plans and revisions
- All other SO 2 SIP’s, including redesignations, ambient monitoring plans,
malfunction rules, State AAQS
- State stack height regulations and negative declarations
- All other PSD/NSR SIP’s
- All other visibility plans
- 111(d) plans/negative declarations
- All other direct final rulemaking
- All letter notice actions

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C
SECTION C
SECTION 110:
STATE IMPLEMENTATION PLANS

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1
SECTION C DOCUMENT I
Energy Emergency Task Force
Implementation of Section
110(f) of the Clean Air Act
03/06/79

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GM- siD(4 .7 ? (. - 0Oj
UN1T STATES 4VIRCNM TAL PROTECTTON AG c’t’
WASH INGTQN, D.C. 20460 4
Ma.rc 6, 1979
-fl4E ACMINI M
r iv.-
Regional Adrninistrators, e ions I—X
S 3JECT: Res onse to Energy £nerge cy; I p1e er tat1or of
Section 110(f) of the Cl2an Air Act, as ei ded
The e 1ànzj. ff ices z ou1d ‘1ace i; est ‘riorit7 on
r s cndinc to any energy emergency ic ay ari e and
i 1 tj EPA’s r sponsibil.jtjes under section 110(f) of
the Clean Air Act.. Eae . aegional ,A&ninistrator stiould take
action to i lemen.t the guidance and recom endatjo set
forth in the attached nencrandum to ne frog : r. ur ing and
Mr.. !a kir.s
The Clean Air Act provides that I nay disa ;rove any
SIP suspension which t determine d e not comply vitn
Section 110(f) (2) (A) and (3) of the Clean Air Act. To
assure that disa roval.z of thappro rjate Suspensions are
ex;edited, I bereby de1 gate to the Regional ? d inistrators
iv authority under Section 110 CE) (3) to disapprove sus en—
sions- issued by- Gcveriors. This authority nay be exercised
by the Regional Administrators only with the prior concur-
rence of the Assistant Administrator for Enforcement and
the Assistant Adnini tratcr for Air, noise and RadLatjan.
Concurrence from the Office of Enforcement and the Office of
Air, Noise and Radiation s ould be requested and will be
given by te1e bone th:ougb. the desig iated EPA headquarters
contact.. I ave designated Ms. artha ?rothro ( S 75 —2523)
of the Division of Stationary Source Enforcement as the EPA
!eadquartegs contact on all. Section 110(f) oatters.
Xs. Proth:o’s alternate is tr. Weldon 31ake (FTS 753 —2 542).
ac Regional. Administrator s ou1d designate a regional.
contact end alternate and the contact s ioui4 call.
4s. Prothro as soon as possible.

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-2-
In a di ion th this energy e ergency 1art to i plex ent
Section 110(f), we a e initiating the deve1opc ent of an
emergency 1an to minii ize adverse erwiron enta1 effects
whicn could resu.l t from a gasoline shortage. I will fo a d
the gasoline plan with i ple’ tation guidance (if a rcpri —
ate) in the future.
Couglas .. Costle
tach eiit
cc: e art ent of Energy

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V ôo/
I
1 ZJ STATZ ENVIRONMENTAL PROTECTiON AGENCY
WAS .4lNG7 N. D.C. 20460
March 6, 1979
Energy Energency Task Force; L p1 entation of
Section 110(f) of the Clean Air Act
—;c Io ‘o zw
A istant 3 inist:atcr for enent’ ’fr wv ) tq w
Assi3tant ? d. ini trator far Air, Noise
and Radiation
TO: The Aduini.st:ator
3u ari: d bel3v is hac c;round infor atjon and ro osed
ragiona.1. iaidance on rez onding to an energy emergency under
Section U (f). We are also initiating deveio ent of an
ei ergency plan and ?1e ’ tation gui ance• (as a ;ropr ate)
to r ini ize adverse envicc.: anta1 effects which could result
•fro a gasoline shortage. e viii forward the gaaoline
e er;ency 1an to you in the future.
I. DOE/EPA Workin Relations
The De art ent of Enery (DOE) has established an
Eflergy Emergency Cencer to cocr inate the federal ;over rtent’s
res cnse to crisis sit ationz resulting frog ener;y ecer;encie .
Although the center was Lnitiated under the izn et’.is of the
:i strike, it would be the coordinating agent in any energy
emergency. EPA has also estabLished an ad hoc Energy
Emergency Task Force to coordinate EP A’s res;cnse to a
crisis. EPa’s - Offices of Cnforca ent, Air, Noise and
Radiation, General Counsel,. and Federal. P cti7ities are
re resented on the task force. EPA’S c’ rxtact with DOE’s
£n2r;y e:gency Center is ! rs.. !vonne Alien, Director of
the Center (2O2—252—51 5). DOE’S Contact with ZPA’s Energy
- E e:;ency ask Force is 4s..:!artha ?vothro (alternate:
Mr. e1don 3lakeL. .of the Di7ision of Stationary Source
Enforcement ( SSE FS 755 2523)

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s. Allen has advised that coal supply thfor at ion
(quantit7i quality, and number of days of fuel. supply) will
be available from DOE: (1) weekly for util4ties on a State
wide basis (approximately 10—day—old data) (2 ) daily fo
specific utilities that DOE has deter irted to have a crit’i —
cal.ly short coal supply; and (3) weekly for industrial coal.
burners on a State—wide basis. In addition, DOE can advise
EPA of State act on5 to conserve and mini.nize cor1sun tion of
the fuel, in short supply and federaL actions to provide f
interconnections to assure that electrical power will be
transferred to areas most in need. Although this inforna—
tion is specific for coal, this guidance is to be used in
any ener5y emergency. Coal. availability in fcr aticn would
be useful for sources presently burning oil, or gas but which
have coal. burning capabilitY in the event of a shortage of
oil or gas.
DOE has established a fo a.L day—to—day contact in. Jack
Watson’s office during energy emergencies in. order to
exedite the flow of infor atiOfl. between EPA, DOE, and the
White Ecuse. DOE and EPA have also agreed to maintain daily
contact during such emergencies.
IL. petitions for Ene -cV Emercenc! Declarations und
5eC .On 110(f) of ne. Clean Air Ac
Section 110 ( f) provides that emergency SIP suspens io
may be granted in accordance with the following
(1 .) The owner or operator of fuel burn m c stationary
source appLies to the state for relief.
(2) The GoveC gives notice and opportunitY for
public hearing on the Qposed petition..
(3) Tb. Gover Or find. that:
(a) an emergency exist3 in the vi init7 of the sourc
involving high levels of unemployment or
loss of neceSsary energy supplies for resi-
dential dwellings ; and.
(b) such unemployment or loss can be totally or
partially alleviated by an emergencY suspefl
..on of State Implementation Plan requirements
applicable to that source.

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(4) The verr or petitions the President to declare
that a national or regional energy energency exists
of such severity that:
(a) a temoorarv suspension of ny part of .he
aPplicable im;ementatjon plan may be neces—
sa y; and
(b) àt er means of responding to the energy
emergency may be inadequate.
(5) The President dete ujnes that a national o re’ioriaj.
energy energency exists. (This authority may not be
redelegated.)
(6) The Governor may issue an emergency suspension to
the source w ich may take effect imnediately. ot
more than one such suspension may be issued to a.
source based on the same set of circ’.stances or on
the basis of the same emergency. Suspensions are
limited in duration by any time limit the Preside.nt
places on his deteination, and in any case may
not. exceed four months.
(7) EPA Administ±ator may review the Governor’s suspen—
siort and disapprove it if he detei es that it
does not satisfy the criteria setforth in (3)
anove. If the EPA Administrator issues a disan-’
prcva.l, order, he will, specify therein the date on
which the Governor’ s susper.s ion snail no longer be
effectiv*..
(8) This procedure does not apply to a plan revision
prulgated by the Administrator pursuant to
Section 110(c) (sucn as for sulfur oxides in Ohio).
The President,. however, may grant up to a four
month suspension of a State I. nplementation Plan
promulgated by the Administrator i be makes the
findings in (3) and (4) above..
Whenever a Governor petitions the -President for a
declaration of an energy emergency- under Section 110(f), we
sucgest that EPA make the following recommendations:

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—4—
&. Conservation measures :
It is essentjal• that emphasis be placed on the need f
• energy conservat .on thro .igh means other than turning off
• pollution Controls, which cou.id involve violations of
health—protective regulations. COE has determined th
there is no federal authority to mandate conservation
measures and only a. few States have such authority. Since
Section 110(f) includes a. provision for consideration of the
• adeç acy of ‘other means’ of responding to the emergency
(item #4(b) above), EPA should recommend to the President
that his declaration of an energy emergency for pur?oses of
Section 1.10(f) be c nditio ed on (1) the Governor’s recuiring
that souxces covered by suspensions demonstrate they have
implemented or will, implement all possible conservation
measures, and (2) where the Governor can mandate conservation
measur , that he do so in addition to granting relief under
Section 1.10(f) If he cannot mandate conservation measures
he would be required to ask for voluntary conservatio
measures in the areas affected.. Lf conservation measures
would be adequate by themselves, no declaration invcl ing
110(f) would be appropriate.
B.. S ecific reference to Section 303 emer encv ’ oowers
EPA should rec end that the President specific fly
mention the continued responsibility of the EPA to take
action under Section 303 of the Clean Air Act where air
pollution may result in an 1 inent and substantial endan—
qerment to human bea.lth . . Although Section 303 would not be
suspended in any event, a specific reference will help to
ensure tb.at States and sources arc en notIce of EPA’s
intention to monitor the potentially severe health impacts
of any increases in emissions resulting ir SIP suspension.
C.. Rrf r, c to possible case by case dis royal b EPA :
This is necessary to impress upon States the need to
make . case by case findings as required by Section 1.10(f).
If this is not dcne at the State level, EPA should dIsapprove
wherever it determines that the Governor could not have made
the necessary findings far the source. (For example,
sus en ions of compliance schedules would generally be
ina prcpriate since they would be .Lunhi)caly to alleviate any
unemployment a: residential energy loss..)

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D. Li. itations on tire and area covered ‘by e er en v
declarati.cn :
EPA shculd recommend that emergency declarations be a
precise as pcssi le, especially as to the area affected, to
allow both an adequate response to true emergencies -and an
adequate opportunity to reevaluate the sTituation as events
develop.
III. EPA Res onse to SIP Susrensions Issued by Governors
under ec:icn UU( ) c tne Clean Air Act
A. P blie hearincs :
e strongly urge- that. whenever possible, the .ecionai.
O f ice actively participate in any public hearing hel under
llO( ). EPA’s participation viii. be useful for two reasons.
First, it will. help to ensure that the public health impacts
of alternative nitigative measured will, be considered in the
decision making process. Second, it will, give us the
opportunity to establish on the record early in the process
that blanket IP suspensions tbrcizghout a State nay not oe
acceptable and that the findings required by
Section llO(f)(l)(A and (3)cf the Act ‘ust be made fo
each source to be covered by the suspension. Therefore,
Regional Offices should testify generally that EPA recogni:es
and will cooperate in attempting to ease the impact of fuel
siiortages but that, because the health problem.s which could
result frc’ suspending air quality standards are a grave
concern, suspensions should not be granted lightly. The
spokesperson should also advise that te nporary energy
emergency suspensions should be issued on a source—specific
basis and only where the findings required by Section
llO(f)(2)(A) and (3) have been made.
.
The purpose of the public bearing required in Section
110(f) is, in part, to provide a factual, record for the
Governor and EPA to use in dete ining whether tem2orary
suspens ion of portions of the implementat cn plan are
justified. As a minimum, the public bearing should cover
the foLlowing:
(1.) the nature .and extent of the energy emergency;
(2) current and projected unemployi ent impacts essoCi
ated with the energy emergency;

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(3) current and projected loss of necessary energy
supplies for residential use associated wjt the
energy emergency;
(4) alternative strategies for reducing the a4verse
impacts of the energy emergency and the co ise—
quences of these strategies on uz emp1oy ent
and on residential. energy, supply;
(5) amount of energy savings expected to result fr
temporary suspension f portions of the implemen-
tation plan;
(6) to the extent possible, pollutant emission levels
both before and after the proposed t2mporary
suspen iori of portions of the implementation plan;
and
(7) to the extent possible,. preliminary assessment of
the air quality and health effect impacts of the
proposed temporary suspension of portions of the
implementation plan.
Infor aticn provided an. items (5) through (7) should,
whenever possible, include source by source data for those
scurccs which, because of their location, the nature and
quantity of their emissions, the density of population in
the area, cm other reasons, we might reasonably anticipate
would have an unacceptably adverse impact on public health
should they be included under a temporary zuspens ion deter —
mination.
Eecause of the emergency nature of this process, it is
unliicei.v that the public will be given much notice (prob blv
less than one week) prior to a bearing. Accordingly, it
will, be useful for those Regions likely to be affected to
begin to prepare a position on SIP suspensions on a priority
basis for eacn State within the Region. Effortz should
begin immediately to evaluate possible adverse air qualit”
impacts within States expected to initiate the Section
110(f) process as soon as necessary. Clearly, any air
auality analyses done as part of this effort will be cursory
and can only be intended to aegin a screening process.
Unless recent a ospneric dispersion modeling analyses.€or
particular areas or sources has been donefor other reasons,
simple rollback (roliforward) esti. nates wjjj, have to suff .C

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—7.-
for prc ecting air quality im;acts. Areas should be screened
on the bas .s of recent ambient monitoring data and further
on the basis of alert episode days. Source impacts snou
‘be screened on the basis of size, degree of reliance on
affected fuel, emission density, stack heights, etc.
The general purpose of this analysis is to identify
those specific areas or pa:tic’.ilar sources where a se .spensjo
of the SIP would be most likely to nave severe air çuality
impacts and resultant severe public health effects. It
would be most desirable to coordinate this effort to the
maximum extent possible with the appropriate State aqency
since the State wifl made the initial decision on the
case-by—case SI? suspensions.
3. ecional Res cnsibili ies Followina SIP Sus ensicn
Decis i.on :
The Regional Office should maintain a c’. rrent listing
of all individual sources that are granted a suspension on a
day-tc—iay basis. Each source granted a suspension should
be contacted by the Regional Office to deternine the specific
_course of action which the source intends to t&ce in response
to the suspe.nsion. Such in foration will facilitate a
netter assessment of the potential air quality impacts that.
can be expected.
The Regional Office should ensure that every effort is
made to process at least daily data from all avi2.able
ambient monitoring networks in and around those areas where
SIP suspensions have been granted... To the extent that
resource constraints limit this effort, highest priority
should be placed on those areas that are most likely to
reach episode levels based upcri.historical ambient air
.çual.ity and the number, concentration, and size of sources
granted SIP suspensions in the area. The Regional Of f ict
should notify the Division of Stationary Source Enforcement
(DSSE) and. the Office of Air uai,ity Planning and Standards
(OAQPS) when air pollution concentrations in areas affected
bT SIP suspensions are exceeding dangerous levels (i.e.,
episode alert levels and higher). . It £s likely that timely
air quality nonitoring data will provide the single most
imoortant basis for supporting a deterrnination by the
Administrator to take an emergency action under Section 303
of the Clean Air Act or to recommend that the pres .cent
rescind or not extend his emergency declarations for a.
specific area.

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The EPA Administrator ay disapprove a suspension
issued by a Covernor only in those limited situations i
wh .cn the suspension does not neet the reçuirements o
Section U.O(f)(2)(A) and (B) of the Clean Air Act (i.e.,
unere hign levels of unemoloyment and loss of necessary
energy supplies for residential dwellings do not exist
the unemployment or loss cannot be totally or partially
a.lleviatec by the SIP suspension). In order to assure that
suspensions apply only to sources experiencing an emergency,
- EPA should act quickly to disapprove suspensions covering
sources for wnich the necessary findings cannot be-made.
The author .ty to disapprove suspensions should be delegated
to the Reçicnai . Administrators, with EPA headquarters
concurrence, in order to assure expedited action. (A
delegation of Section ll0(f)(3) authority is included in the
attached nemorandum to the Regional Administrators for your
signature.)
Regional. Offices should give high priority to reviewing
any actual suspension issued by Governors to assure that
they are consistent with the criteria set forth in Section
110(f) (2) (A) and (B). Reviews shou.Ld focus on source5 in
those areas (and, where known, a or sources) for wnich DOE
has deter ined,- based on available Eupplies and possible
interconnections, that the emergency is less critical. DS
will keep the Regional Offices thfor ed of DOE’S deternina
tions and will request DQE determinations as necessary to
enable Regional Offices to set proper priorities for reviews
of SIP suspensions.
The memorandum attached for your signature directs each
Regional. Ad iniStratC to designate a. contact for energy
emergency infor atiOn . DSS!’S Regional Programs section
will. contact Regional Office designees each day to obtain
infoati©n fork inclusion in a daily status chart. DSSE
will, be primarily responsible for contacting the Regional
Offices tO request specifiC tn or atiOn, for answering any
Regional. questions, and for receiving and disseminating
necessary data to appropriate Regional and headquarters
Of fices.
IV. A Resoonse to Incuiries from States arid SourceS
Generally, inçuiries can be expected to fall within the
categories listed below. .Suggested Regional Of f ce respcflS
are indicated.

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A. Source inquiries about possible suspension of State
1 romuigated i 1e entation plan:
Response: Only the Governor can suspend such a sip.
Source may petition Gcvertcr to cetition the President a
5110(f) ex erency declaration. E P 1 , viii. not concur in
reIa ation of environmental regulations prior to a declara
tion under 1lO(L) .
3. Source inquiries about possible suspension of federally
prcnulgated SIP:
Respons : The President has not delegated his au.thority
to suspend such a SIP. Sources may direct petitions to the
President but should send cocies to the Adninistrator and
egional Administrator to assure quick response. S urce
must present information to allow the President to determine:
(1) that an energy emergency existS in the vicinity of the
source of such severity that a temporary suspension of any
part of the SIP may be necessary and other means of re-
sponding may be inadequate; (2) that there existS in the
vicinity of such source a temporary energy emergency in-
volvLag high levels of unem 1oyment or loss of necessary
energy su pliee fcr residential dwellings; and (3) that such
loss or unemployment can be totally or partially alleviated
by a SIP suspension. (DSSE should be notifIed i nediateiy
of any exected petitions for suspens ion of federally
prulgated SIP’s.)
C. Source or State inquiries about possible suspension of
non—SIP federal air pollution control requirementS e.g.,
New Source Performance S tandards, interim requirements in
federal orders or consent decrees, etc.):
esponse: There is no statutory authority for emergency
suspension of non—51P requirements, since Sli0(f) relates
only to SIP’s. 12, however, a determination of an emergency
has been made under llQ(f) relative to SIP’S, !PA will
exercise enforcement discretion on a case—by—case basis in
dealing with non—SIP situations. Where the findIngs neces-
sary for a SIP suspension could not have been made in a
z eci.fic case, CPA will enforce the applicable requirements
and will seek appropriate penalties. Where those findings
could be made for a source subject to non-’SIP federal
recuirements, EPA wL.1.l generally ref ra .n fr= enforcing or
seeJcing penalties based on a source’s noncompliance “nere

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-l0l..
afl. other pass thie steps are being taken to comply and w
violation :esu.lts from efforts to minimize the impacts o an
- emergency on high levels of unemployment or loss of necessary
• energy supplies to residences. A co i ent not to en force
• may be made only in writing to a specific source and-only
with the concurrence of the Division of Stationary Source
Enforcement. In no event may a source be exempt from possible
action under Section 303 of the Clean Air Act. It is
• unlikely that any relaxation of incremental compliance
schedules will be appropriate.
B. Source. or State thq iries about possible suspension of
federal requirements for water pollution contol;
Response If, based en the provisions of Section
110(f) of the Clean Air Act, a proclamation is made and
petitions for relief from NPDES requirements. are received,
the Regional Office should. iediately contact the Office of
Water Enforcement for guidance.. .The following conditions
for temporary modification of individual, discharge peits
will generally apply:
1... On a case-bYCa3e basis, EPA will review written
applications for relief from individual. permit
conditions to determi’ *:
a, the specific permit conditions which the
discharger wishes to Fave amended temporarily;
b. the specific energy savings f:.. each suspen-
sion. of water eaent activity; ’
c ’. additional steps the permittee is taking to
reduce totaL plant energy cons ption;
4.. the anticipated envirOnmefltal damage which
will. result from the cessation of all or
portions of the treaent process;
• ether area wide energy conservation measures.
I
2. Except where a balancing test would dictate a
centazy result, written requests will be diSaP
proved if. they petition for relief fr the fol-
lowing:

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-‘11—
a. a requirement which, if suspended, wou.id
result in short-term suspension of curr t
trea ent activity and which would result
lcng-te envirc mental d a nage7
b.. a requirement limiting the discharge of tcxjc
s .thsta.nces (NRDC, etc.);
c. the C struction steps which are in their
c pi.iance schedules;
d. disinf ection requirements where water is used
for swinming or food processing, etc.
In all cases, relief may be granted using prosecutoriai..
discretion and the Regions viii. issue lega.Uy enforceable
dcc entn. which require fuLl compliance at the end of the
emergency period.. These doci.ent will also require in-
creased levels of monitoring and reporting in order to
safeguard the enviroz ment.
V.. Reendatica
We reccend that yo sign the attached memorand to
the Regicnal A’ iainistrators which emph4s izes that EPA’ s-
response to an emergency must be handled a.s the highest
Agency priority.
7Pt e
Marvia 8. Durning David G. Eawkins
Attachments
cc: DO!, attn: Ms. Yvonne Alien

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(€ (,H-I’c - 7 - -2-oc, .
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C 20460
THE ADMINTRj TQ
JUL 21979
MEMORANDUM
TO: Regional Administrators, Regions I—X
SUBJECT: Supplement to the Memorandum of March 6, 1979, Regarding
tmplementation of Section 110(f) of the Clean Air Act
On March 6, 1979 I sent to the Regional Mminfstrators guidance on
implementing Section 110(f) of the Clean Air Act. Since that time
headquarter’s staff has clarified the informational requtremerEts for
adequately addressing Section llO(.f) is.sues and has also developed a
policy concerning the use of price differentials between low and high
sulfur., fuel oils in Section 110(f) proceedings. Each Regional
Administrator should take action to implement the supplemental guidance
and recommendations set forth In the attached memorandum to me fruit
tb. Durning and Mr. Hawkins.
I have designated Mr. Paul Stolpman (phone: 426-Z482) as the
headquarters contact on the analysis needed to support all 110(f)
actions. Mr. Stolp an’s alternate is Mr. George Sugtyama
(phone: 426-2482). Action on the 110(f) applications re iains as
set forth in previous guidance.
id Douglas K. Costle
Attactrent

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SECTION C DOCUMENT 2
Supplemental Guidance Regarding
Implementation of Section 110(f)
of the Clean Air Act
06/1 9/79

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____ UNITED STATES ENVIRONMENTAL PRO1 -Ec -rioN AGENCY
WASHINGTON.D 20460
JUN .19197 9
ThE AaMIN,sT Tcft
SUBJECT: Supplemental Guidance Regarding Implementation of Section 110(f)
of the Clean Air Act - ACTION MEMORANDUM
FR l : Assistant Administrator for Air, Noise, and Radiation
Assistant Administrator for Enforcement
TO : The Administrator
Regional guidance on responding to an energy emergency under Section
110(f) was issued on March 6, 1979. Since that time the President has
declared a regional energy emergency In Florida; Connecticut and Mew York
have held hearings on low sulfur fuel oil availability; and the President
has instnjcted EPA to use full authority to take price differentials into
account In making recon iiendatj n on Section 110(f) waiver requests. Based
on ir experience subsequent to the Section 110(f) regIonal c!uidance we now
propose the following supplemental guidance detailing 1nforma. j necessary
for determining the existence of an energy emergency and poflcy guidance on
the extent to which price differentials are to be incorporat in a waiver
rec tinendatf on.
I. Policy on Price Differentials
The President, in his April 5, 1979, energy address, directed the
Administrator to ‘consider unusually large increases in the price
differential between complying and non-complying fuels as a basis for
recomending approval of state suspension ‘requests’ and to ‘use his
full authority to take into account price differerrtials and to provide
the President with information on price differential increases when making
rec nendatfons to him on such requests.’ This directive does not imply
that states must make a price differential case when petitioning for
Section 110(f) waivers. it does allow the Administrator to consider
price differentials whenever a state makes such a case.
June 7, 1979, the State of New York held hearings on a request by a
public utility for a Section 110(f) SIP suspension of the low sulfur fuel
oil, requirement. The issue before New York was not based on an actual
unavailability of complying low sulfur fuel oil but was based on whether
the high price of complying fuel oil relative to non—ccnplying fuel oil
was sufficient justification for a SIP suspension. EPA was requested
by flew York to provide policy guidance on this Issue.

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—2.
Price differentials between complying and non—complying fuel oils may
provide a sufficient justification for a SIP suspension only when such
differentials actually cause (or are anticipated to causa) the effects -
of an energy emergency listed in Section llO(f)(2), I.e. , high levels of
unemployment or a loss of necessary energy supplies for residential
dwellings and such effects could be totally or partially alleviated by
an emergency suspension.
Whenever it appears that price differentials may becaue part of the
basis or the basis of a Governor’s petition to the President for a
declaration of an energy emergency, Regional Administrators should make
every effort to assure that the state develops an adequate record on the
impact of price differentials. Recommendations to the President concerning
petitions for an energy emergency shall not be based on price differentials
in the absence of an adequate record establishing the impact of such price
differentials. Further, in exercising the Section 1l0(f)(3) disapproval
authority EPA shall examine the pricedifferential impact of a SIP
suspension to determine Its continued validity and act accordingly.
During the period of a suspension, price differentials and the Impacts -
of price differentials will be monitored by EPA to determine the continued
validity of a price differential basis for a SIP suspension.
II. Information Necessary to Doctm ent the Existence of M Enerçy Emergency
The following list of information needs Is an expansion of those general
items listed in paragraph 111(A) on pages 5 and S of the March 6, 1979.
regional guidance. As the record of any EPA decision or recomendation
regarding a Section 110(f) waiver request will be primarily the states
record, a concerted effort should be made to assure that such record
contains the following Information as well as any available information
on the Issues listed in paragraph 111(A). Although EPA should provide
assistance in developing the state’s record, the responsibility of providing
this informatiãn rests with the state and the source.
1. IdentIties of affected or potentially affected parties. Including;
(a) parties claiming a shortage together with the bas s of
their claims,
(b) a fected customers (ul timate users), and
(c) suppliers (potential or actual) to parties experiencing
shortages or cutbacks.
2. Information concerning the amount and duration of an expected
shortage Including:
(a) monthly demand for two calendar quarters before and after
a SIP suspension,

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(b) projected shortfall of conforming fuel for the period in
Item. (a).
(c) any circumstances affecting a shortage, such as abnormal
weather conditions
Cd) unanticipated changes In supply, demand, or availabIlity of
transportation.
3. A surrmary of the current Inventorfes of the various parties
affected, Including the following Information:.
(a) by type and sulfur content
(b) storage capacity/blending capacity
(c) historical comparison of supplies/Inventory over last
2 years
(d) desulfurizatlon capacity and a historical suninary
of such capability, Including any recent (3 year) changes
in desulfurizatlon capacity.
4. InformatIon on alternative supplies of available conforming fuel
and documentation of those steps taken to locate such fuels. An adequate
documentation will Include a list of all suppliers contacted (Including
date of contact and mode of contact), the response of each supplier
contacted, copies of correspondence with the suppliers (including telephone
logs), and any other memoranda, notes, or reports evidencing the
availability or unavailability of fuel oil.
5. Information on the availability of other fuel supplIes whtcJz
though not conforming represent a minimal Increase In sulfur levels
(i.e., 1% sulfur content versus 0.3% sulfur content)..
6. A suninary of the contractual arrangements between various parties,
suppliers and users and a description of the available options In the
event of a fuel oil shortage.
7. What actions have been taken or considered to mitigate the
environmental, energy, and employment impacts of the shortage situation
or to conserve conforming fuel (mandatory or voluntary)? Examples of
such measures may be conservation measures, voltage reductions,
thermostat reductions, wheeling and the substitution of natural gas for
oil. The amount of conforming fuel oil saved by each measure should be
detailed.
8. Which facilities may have to close down as a result of the
shortages? What Is the potential Impact on employment In the area?
9; WhIch facilities can convert to alternate fuels? What Is the
lead time necessary for these facilities to convert?

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-4 -
10. How will SIP Suspensions alleviate the shortage?
(a) what is the present SIP limitation on fuel use
(b) what would the new requirement be If the SEP is suspended.
Cc) how much conforming fuel would be saved.
(d) can anything within the existing SIP be done to wholly or
partially alleviate the shortage.
Ce) What steps will the state und rtake to mitigate environ-
mental impacts,
(f) can a fuel user blend conforming and non.’conforming fuels
to minimize any local environmental impact of using non-
conforming fuels?
11. Which sources would violate NAAQS if the enissions limitations
are suspended? What Is the present attainment status in the affected areas?
With regard to a request for a 110(f) suspension based on prf
differentials the following additional Information would be requir :
1. A discussion of fuel prices, Including:
(a) a one year history of prices paid for conforming fuel,
under contract or on the spot market.
(b) the prices of non-conforming fuels by sulfur content.
(c) the prices of any available alternative fuels the use of
which wOuld not !e Iire a suspension.
2. The Impact of price differentials of complying fuels relative to
non-complying fuels (at various sulfur levels) on unemployment (e.g.. layoffs,
plant closures) and residential energy supplies, including:
(a) a examination of various sulfur content fuels and alternative
fuels.
(b) the mitigating effects of conservation measures and the
substitution of natural gas for oil.
III. Recomnendat Ion
recomnend that you sign the attached menorandum to the Regional
dm1 S ators.
(
David G. Hawkins Marvin B. Durning

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SECTiON C DOCUMENT 3
Alternate Procedure for Section 110(f) Relief of Localized
Short Term Energy Emergencj
01/10/80
3

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
January io, 1980
OFFICE O ENFORcz lE r(r
MEMORANDUM
Subject: Alternate Procedure for Section 110(f)
Relief in Localized, Short Term Energy
Emergencies
From: Acting Assistant Administrator for
En for cement
Assistant Administrator for Air, Noise
and Radiation
To: Regional Administrators
Regions i—x
Recent discussions with various state environ-
mental and energy personnel have focused our
attention on the inappropriateness of our current
Section 110(f) guidance on procedures for obtaining
Presidential emergency declarations and subsequent
suspension of State Implementatjo Plan requirements
necessitated by short term, localized situations
where no alternative action appears to be ade-
quate (e.g., harbor disruptions, unanticipated
distributor delivery delays). The Section 110(f)
mechanism is the only manner in which the Clean Air
Act permits suspension of State Implementation Plan
requirements, with the attendant release from federal
liability for their violation, under energy emergency
circumstances. Some of our existing procedures for
handling Section 110(f) requests have occasionally
proved too cumbersome relative to the immediacy of
these short—term, localized energy problems.
Our staffs, in coordination with several
regional and State officials, have developed the
following procedures which we believe mitigate the
existing problems while complying with the intent of
Section 110(f) for these limited emergency situa-
tions. National or regional energy emergencies which
are ineligible for the expedited approach described

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-2—
below, remain subject to earlier guidance of March 6,
and July 2, 1979. (Copies of these memoranda, as
well as a amp1e Presidential declaration for short
term emergencies falling within the scope of- this
guidance, are attached for your convenience.)
Applicability of Expedited Procedures
Expedited procedures are available only where
relief necessary as a result of the emergency is
anticipated to last less than 30 days, and is limited
to a localized problem due to unavailability of con-
forming fuel. This expedited procedure may not be
used for 110(f) petitions based on unusually high
price differentials between conforming and noncon-
forming fuels; these petitions must conform to
earlier guidance. All other energy emergency
situations (e.g., a regional problem anticipated to
last 2 or 3 months) require literal compliance with
the statutory procedures of Section 110(f).
EPA will recommend that any Presidential dec-
laration granted under these expedited procedures
expire, by its own terms, no later than 30 days from
issuance, and permit suspensions of SIP requirements
only for those sources (including distributors where
applicable) affected by the unavailability of
conforming fuel. These expedited procedures are
generally inappropriate where gubernatorial
suspensions across an entire state or industry
category are necessary.
I. Procedures for Expedited Relief
A. State Notice and Opportunity for Hearing Prior
to Petition
Due to the short reaction time and short
possible effective period of any suspension, public
notice end opportunity for a hearing prior to a
petition, while strongly encouraged, are not required
for EPA to recommend a Presidential declaration.
Such hearings are held to consider both the existence
and extent of the emergency and the impacts of any
suspensions which may be granted should an energy

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—3—
emergency be declared. Where no opportunity for a
hearing was offered prior to the Governor’s petition
to the President, EPA will recommend that any
declaration be conditioned on the requirement that
such hearings being held within 10 days after the
declaration, and that such a declaration expire by
its own terms if a hearing is not held within that
t ime.
Should the state later determine that the
emergency situation will or is likely to last longer
than the 30 days covered by the declaration, an
additional hearing, prior to the Governor’s
request for an extension of the presidential declara-
tion, is required.
B. The Governor’s petition to the President and
Supporting Documentation
Due to the short time period for 110(f) relief
effectiveness under these expedited procedures, an
extensive petition to the President from the Governor
is not needed; however, a written or telegraphic
request from the Governor for the declaration, based
on consultation with both State energy and environ-
mental personnel, is required. A prior telephone
communication from State staff to the appropriate EPA
Regional Office, explaining the circumstances of the
emergency and the forthcoming request, will expedite
the procedure. A brief statement of the basis for
the request, including the approximate number and
types of sources affected, the apparent cause of the
emergency, efforts made to alleviate the situation
through other means and why those efforts are in-
sufficient, a summary of available information on
possible unemployment and/or loss of necessary
residential energy supplies, and (wherever possible)
a discussion of potential air quality impacts of
anticipated suspensions, should accompany the
Governor’s request. A brief discussion of alternate
measures for alleviation of the difficulty without
emission increases (e.g., load shifting,
conversion) should be included. If the petition is
made without prior notice and opportunity for a
hearing, the request should indicate why such notice
and hearings could not be held prior to the request.

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—4—
II. Subsequent Documentation and Air Quality
Considerations
Additional documentation, including that
collected through the public hearing, should be sub-
mitted to EPA as soon as possible after the hearing.
This documentation should include detailed infor-
mation on the topics addressed briefly in the
petition as well as any air quality information, such
as monitoring data and records of emissions from
facilities granted suspensions during the period of
the declaration. In addition, where unavailability
of conforming fuel is involved, written documentation
of source/distributor efforts to obtain conforming
fuel must be submitted.
Many states have the capability of producing
ambient air quality projections in a tight time
frame, or have modeled sources and know the maximum
allowable emissions which will protect air quality.
States should be urged to perform any necessary air
quality modeling and other environmental impact
analyses before an energy emergency arises, in order
to have this information quickly available.
III. EPA Involvement
EPA has two roles in the 110(f) process —— the
statutory authority to disapprove gubernatorial
suspensions and the responsibility for recommending
action to the President on petitions for declarations
of energy emergencies. To adequately perform its
responsibilities, the Agency must maintain close
communication with the state involved. The following
communication patterns should be followed to assure
expeditious EPA action:
1. Earliest possible telephone notification of
the emergency should be made by the State
to the EPA Regional office. The energy
contact in the Regional office should
immediately inform Jean Vernet of DSSE (F’TS
755—2553) of this communication from the
State, in order to expedite any response,
Providing headquarters with names and
telephone numbers of the involved State
personnel (e.g., energy, evironmental, and
public utility commission staff) has proven
to be extremely useful, especially where
the immediacy of the situation requires
speedy information gathering.

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—5—
2. A copy of the petition to the President
should be sent to the Administrator,
Attention: Edward Reich, Director,
Division of Stationary Source Enforcement,
at the same time as it is submitted to the -
President. A copy of the petition and all
supporting data should be sent to the EPA
Regional Office. This will eliminate the
delay involved in transmittal from the
White House, and will permit EPA to quickly
prepare a recommendation and draft a
declaration for signature of the
President.
3. The EPA Regional office should be given
notice of any state hearing. EPA will
attend and participate to the extent a
state requests and the Agency is able.
Copies of transcripts of all hearings
should be sent to the EPA Regional office.
4. Copies of all gubernatorial suspensions of
sIp requirements, together with any sup-
porting materials, should be sent to the
EPA Regional office.
5. Copies of all source/distributor submittals
should be sent to the EPA Regional Office
directly by the source/distributor, if
possible or by the State.
6. The State environmental and energy offices
and the EPA Regional Office should maintain
close communication throughout the energy
emergency period, to monitor the existing
situation and hopefully to foresee any
additional, longer term or broader
problems.
7. The energy emergency contact in the
Regional Office should maintain close
communication with DSSE to facilitate any
necessary headquarters actions on the
emergency.
achment ) .
/ e%i . 4i 4 2 a
je z ey 9. !‘liller -David C. Hawkins

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SAMPLE
MEMORANDUM FOR THE ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCy
Based on a request submitted to me by the
Governor of —, I hereby declare that
a regional, energy emergency exists in the State of
_______ of such severity that temporary suspension of
certain air pollution control regulations which apply
to under
the _______ Air Quality Implementation Plan may be
necessary, and that other means of responding to the
energy emergency may be inadequate. This deter-
mination shall. expire ( 30 days from issuance) , and is
made upon condition that the necessary hearings be
held with ten days. If hearings are not held, this
determination will expire ( ten days from issuance) .
If, during the emergency, I find that a regional
energy emergency no longer exists in I will
direct that this determination be rescinded, and that
all suspension orders issued by the Governor be

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—2—
terminated on the day of that rescission. Please
continue to work with State officials to monitor,
carefully the situation in — and to inform me if
the emergency should cease to exist. You will
continue to retain full authority to disapprove
temporary suspension of regulations in _______ and to
exercise your emergency powers authority under Section
303 of the Clean Air Act, when and if necessary.
While my determination permits the temporary
suspension of certain emission limiting requiremen ,
I urge Governor — to exercise caution in
granting these su pensions, in order to protect, to
the fullest extent possible, the public health and
welfare. (This determination shall be published in
the Federal Register. )

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SECTION C DOCUMENT 4
Clarification of Requirements for Inclusion of CEM
Provisions in SIPs
05/09/80
4

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_____ 99J (7ô ,L
MEMORANDUM MAY 9
SUBJECT: Clarification of Requirements for Incluaj 0
of Continuous Emissjc Monitoring
Provisions in State Implementation Plans
FROM: Director, Division of Stationary Source
- Enforcement
TO: Enforcement Division Directors,
Regions i—x
Air and Uazardous Materials Division Directors,
Regions I—x
During the course of a recent survey of state continuous
emission monitoring (CEM) re ulatjons for existing stationary
sources, the following question arose concerning the aprlicahiljty
of 40 CFR Part 51, Appendix P, which requires CEM at four
categories of existing sources (power plants, sulfuric acid
plants, nitric acid plants, and fluid bed catalytic cracking unit
catalyst regenerators at petroleum refineries):
Appendix P requires CEM at the four listed
sources if they exceed certain size threshholds
and, in the case of NOx CErj, power plants and
nitric acid plants if they are located in
areas designated nonattajnment for nitrocyen
dioxide. If a state, due to the size threshholds,
has no Appendix P sources, or if a state has no
areas designated nonattainment for nitrocyen
dioxide, must the state nonetheless promulgate
a CEM regulatjo pursuant to 40 CFR 51.19(e) in
case a source exceeding the threshhold is
subsequently constructed in that state or in
the event an area is later designated nonattainnent
for nitrogen dioxide?
The question arose because amona the reasons some states have
given for not having complete Appendix P regulations are that the
sourCes in those states do not meet the size threabbolcis or t1 at
there are no areas in the states designated nonattairiment for
nitrogen dioxide.
It is our view that a state need not oromulgate C ’ regu-
lations to apply to Appendix P sourc s not yet in existence in the
state. Appendix p by its tern s permits states, in their CEr!
regulations, to exe pt from its coverage sources which would he
subject to any t SPs requiring CEM. All four of the source

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—2—
categories covered by Appendix P would, if new 1 be subject to sips
continuous monitoring requirements. Should a source meeting th
Appendix P size threshhold be subsequently constructed in state
it would be governed by the CEM provisions of the applicable NSPS
Coverage under Appendix P would therefore be unnecessary to *
assuring the continuous monitoring of thatnew source.
With regard to the absence within a state of areas designated
noriattainment for nitrogen dioxide, a state need not require NOx
monitoring under Appendix P for power plants or nitric acid plants
where there are currently no nonattainirent areas for nitrogen
dioxide. A reading of SectionB 2.1.3 and 2.2 of Appendix P
reveals that the presence of a nonattainment area for nitrogen
dioxide is so much a part of the description of the covered source
categories that the absence of such an area would preclude
existing power plants and nitric acid plants from Appendix P
coverage for NOx monitoring. There being no covered sources for
NOx monitoring, no regulations need be enacted to require such
monitoring.
In order, however, to encourage states to assess their CEM
regulations and to examine those sources covered by them, we will
suggest to the working group presently involved in further
developing the AgencyB CEll requirements that 40 CFR 51.19(e) a
Appendix P be amended to include a provision requiring a state
certify, in a manner similar to 40 CFR 60.23(h) for NSPS, that i
has no existing sources of the type covered by the CEM require-
ments and therefore need not have complete Appendix P regulations.
A procedure of this sort would enable the Agency to better monitor
both source and state compliance with CEll regulations for existing
sources.
If you have any questions on this matter, please feel free to
contact Mark Silvert tintz (FTS 755—2570) in this Division.
Edward E. Reich
cc Richard 1 oads
Director, CPDD
Joseph Sableski, .CPDD
bcc: Lou Paley

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SECTION C DOCUMENT 5
Policy on Excess Emissions During Startup, Shutdown,
Maintenance and Malfunctions
NOTE: Clarifies memorandum of same title, dated
09/28/82 (attached)
02/15/83 09/28/82
5

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a UNITED STATES ENVIROt MEP TAL PROTECTION AGENCY
WASHiNGTON, D.C. 20460
FEB 15t983
OFFICE OF
AIR, NOISE AND RADIATION
MEMORANDUM
SUBJECT: Policy on Excess Emissions During Startup, Shutdown,
Main, nance, and ons
FROM: Kati’” ennett, Assistant Administrator
for Air, Noise and Radiation
TO: Regional Administrators, Regions I—X
I have been asked to clarify my memorandum of
September 28, 1982, concerning policy on excess emissions .during
startup and shutdown.
Specifically, I stated that startup and shutdown of
process equipment are part of the normal operation of a source
and should be accounted for in the design and implementation of
the operating procedure for the process and control equipment.
Accordingly, it is reasonable to expect that careful planning
will eliminate violations of emission limitations during such
periods.N I further stated that (ilf excess emissions occur
during routine startup and shutdown of such equipment, they
will be considered as having resulted from a malfunction only
if the source can demonstrate that such emissions were actually
caused by a sudden and unforeseeable breakdown in the equipment.
A question has been posed as to whether there can be
situations in which it is unreasonable to expect that careful
planning can eliminate violations of emission limitations
during startup and shutdown. I believe that there can be such
situations. One such situation, which was already mentioned
in the policy, is a malfunction occurring during these periods.
A malfunction during startup or shutdown is to be handled as
any other malfunction in accordance with the policy as
presently written.
Another situation is one in which careful and prudent planning
and design will not totally eliminate infrequent short periods
of excesses during startup and shutdown. An example of this
situation would be a source that starts up or shuts down once or
twice a year and during that period there are a few hours when
the temperature of the effluent gas is too low to prevent harmful

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2
orinatiOn of chemicals which would cause severe damage to
control equipment if the effluent were allowed to pass through
the control equipment.
Therefore, during this latter situation, if effluent gases -
are bypassed which cause an emission limitation to be exceeded,
this excess need not be treated as a violation If the source
can show that the excesses could not have been prevented through
careful and prudent planning and design and hat bypassing was
unavoidable to prevent loss of life, personal injury, or severe
property damage.
I have clarified the policy concerning this issue. A copy
is attached.
At t a C hme nt

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Attachment
POLICY ON EXCESS EMISSIONS DURING STARTUP, SHUTDOWN,
MAINTENANCE, AND MALFUNCTIONS
IntroduCti0fl
Several of the existing State implementation plans (SIPS)
provide for an automatic emission limitation exemption during
periods of excess emission due to startup, shutdown, maintenance,
or malfunctiofl.* Generally, EPA agrees that the imposition of
a penalty for sudden and unavoidable malfunctions caused by
circumstances entirely beyond the control of the owner and/or
operator is not appropriate. However, any activity which can
be foreseen and avoided, or planned, is not within the definition
of a sudden and unavoidable breakdown. Since the SIPs must
provide for attainment and maintenance of the national ambient
air quality standards, SIP provisions on malfunctions must be
narrowly drawn. SIPs may, of course, omit any provisions on
malfunctions. (For more specific guidance on malfunction
provisions for RACT SIPs, see the April 1978 workshop manual
for preparing nonattainment plans].
I. EXCESS EMISSION FROM MALFUNCTIONS
A. AUTOMATIC EXEMPTION APPROACH
If a SIP contains a malfunction provision, it cannot be
the type that provides for automatic exemption where a malfunction
is alleged by a source. Automatic exemptions might aggravate
air quality so as not to provide for attainment of the ambient
air quality standards. Additional grounds for disapproving a
SIP that includes the automatic exemption approach are discussed
in more detail at 42 FR 58171 (November 8, 1977) and 42 FR
21372 (April 27, 1977). As a result, EPA cannot approve any
SIP revisions that provides automatic exemptions for malfunctions.
* The term excess emission means an air emission rate which
exceeds any applicable emission limitation, and malfunction
means a sudden and unavoidable breakdown of process or
control equipment.

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2
B. ENFORCEMENT DISCRETION APPROACH--SIP EMISSION
LIMITATION ADEQUATE TO ATTAIN AMBIENT STANDARDS
EPA cart approve SIP revisions which incorporate the
enforcemeflt discretion approach. Such an approach can requite
the source to demonstrate to the appropriate State agency that
the excess emissions, though constituting a violation, were due
to an unavoidable malfunction. Any malfunction provision must
provide for the commencement of a proceeding to notify the
source of its violation and to determine whether enforcement
action should be undertaken for any period of excess emissionS.
In determining whether an enforcement action is appropriate,
satisfaction of the following criteria should be considered.
1. To the maximum extent practicable the air pollution
control equipment, process equipment, or processes were maintained
and operated in a manner consistent with good practice for
minimizing emissions;
2. Repairs were made in an expeditious fashion when the
operator knew or should have known that applicable emission
limitations were being exceeded. Off—shift labor and overtime
must have been utilized, to the extent practicable, to ensure
that such repairs were made as expeditiously as practicable;
3. The amount and duration of the excess emissions
(including any bypass) were minimized to the maximum extent
practicable during periods of such emissions;
4. All possible steps were taken to minimize the impact
of the excess emissions on ambient air quality; and
5. The excess emissions are not part of a recurring
pattern indicative of inadequate design, operation, or maintenance.
II. EXCESS EMISSIONS DURING STARTUP, SHUTDOWN, AND
MAINTENANCE
Any activity or event which can be foreseen and avoided,
or planned, falls outside of the definition of sudden and
unavoidable breakdown of equipment. For example, a sudden
breakdown which could have been avoided by better operation and
maintenance practice is not a malfunction. In such cases, the
control agency must enforce for violations of the emission
limitation. Other such common events are startup and shutdown
of equipment, and scheduled maintenance.

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3
Startup and shutdown of process equipment are part of the
normal operation of a source and should be accounted for in the
planning, design and implementation of operating procedures for
the process and control equipment. Accordingly, it is reasonable
to expect that careful and prudent planning and design will
eliminate violations of emission limitations during such periods.
However, for a few sources there may exist infrequent short
periods of excess emissions during startup and shutdown which
cannot be avoided. Excess emissions during these infrequent
short periods need not be treated as violations providing that
the source adequately shows that the excess could not have been
prevented through careful planning and design and that bypassing
of control equipment was unavoidable to prevent loss of life,
personal injury, or severe property damage.
If excess emissions occur during routine startup and
shutdown due to a malfunction, then those instances will be
treated as other malfunctions which are subject to the malfunction
provisions of this policy. (Reference Part I above).
Similarly, scheduled maintenance is a predictable event
which can be scheduled at the discretion of the operator, and
which can, therefore, be made to coincide with maintenance on
production equipment, or other source shutdowns. Consequently,
excess emissions during periods of scheduled maintenance should
be treated as a violation unless a source can demonstrate that
such emissions could’ have been avoided through better scheduling
for maintenance or through better operation and maintenance
practices.

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. $DI ;?.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
____ WASHINGTON, D.C. 20460
Ll’mO
C l
S 28
OFFICE OF
AIR. NOISE AND RADIATION
MEMORANDUM
SUBJECT: Policy on Excess Emissions During Startup, Shutdown,
Maintenance, and Malfunctions -
‘ .1 F 4 -J . Is.I
FROM: Kathleen M. Bennett .
Assistant Admlnistrat”o for Air, Noise and Radiation
TO: Regional Administrators, Regions I—X
This memorandum is in response to a request for a
clarification of EPA’S policy relating to excess emissions
during startup, shutdown, maintenance, and malfunctions.
Excess emission provisions for startup, shutdown,
maintenance, and malfunctions were often included as part of
the original SIPs approved in 1971 and 1972. Because the
Agency was inundated with proposed SIPS and had limited
experience in processing them, not enough attention was given
to the adequacy, enforceability, and consistency of these
provisions. Consequently, many SIPS were approved with broad
and loosely—defined provisions to control excess emissions.
j l978, EPA adopted an excess emissfons policy after
many, le i fective attempts to rectify problems that existed
with these provisions. This policy disallowed automatic
exemptions by defining all periods of excess emissions as
violations of-the applicable standard. States can , of course,
Consider any demonstration by the source that the excess
emissions were due to an unavoidable occurrence in determining
whether any enforcement action is required.
The rationale for establishing these emissions as
violations, as opposed to granting automatic exemptions, is
that SIPS are ambient—based standards and any emissions above
the allowable may cause or contribute to violations of the
national ambient air quality standards. Without clear
definition and limitations, these automatic exemption
provisions could effectively shield excess emissions arising
from poor operation and maintenance or design, thus precluding
attainment. Additionally, by establishing an enforcement
discretion approach and by requiring the source to demonstrate
the existence of an unavoidable malfunction on the source, good
maintenance procedures are indirectly encouraged.
C

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—2—
Attached is a document stating EPA’s present policy-on
excess emissions. This d p cument basically reiterates the
earlier policy, yzith some refinement of the policy regarding
excess emissions during periods ot scheduled maintenance .
A question has also been raised as to what extent
operating permits can be used to address excess emissions in
cases where the SIP is silent on this issue or where the SIP is
deficient, yJhere the SIP is silent on excess emissions, the
operating permit may contain excess emission provisions which
should be consistent with the attached policy . Where the SIP
1s deficient, the SIP should be made to conform to the present
policy. Approval of the operating permit as part of the SIP
would accomplish that result.
If you have any questions concerning this policy, please
contact Ed Reich at (382—2807).
Attachment

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Attachment
POLICY ON EXCESS EF ISSIONS DURING STAFtT—UP, SHUTEOfl ,
MAINTENANCE, AND t ALFUNCTIONS.
Several of the existing State ir plen€ntation plans (SIPs)
provide for an automatic emission limitation exemption durinc
periods of excess emission due to start—up, shutdown,
maintenance, or mralfunction.* Generally, EPA-agrees that the
imposition of a penalty for sudden and unavoidable
malfunctions caused by circumstances entirely beyond the
control of the owner and/or operator is not appropriate .
However, any activity which can be foreseen and avoided, or
planned is not within the definition of a sudden and
unavoidable breakdown. since the i s must provide for
attainment and raintenance of the national ambient air quality
standards, 51P provisions on malfunctions must be narrowly
drawn. SIPs may, of course, omit any provision on
malfunctions. [ For more specific guidance on malfunction
provisions for RACT SIPs, see the April 1978 workshop manual
for preparing nonattainment plans.]
I. AUTOf4ATIC EXEMPTION APPROACH
If a SIP contains a malfunction provision, it cannot be-
the type that provides for automatic exemption where a
malfunction is alleged by a source. Automatic exemptions
might aggravate air quality so as not to pfovide for
attainment of the ambient air quality standards. Additional
grounds for disapproving a SIP that includes the automatic
exemption approach are discussed in more detail at 42 FR 58171
(November 8, 1977) and 42 FR 21372 (April 27, 1977). As a
result, EPA cannot approve any SIP revision that provides
automatic exemptions for malfunctions .
II. ENFORCEMENT DISCRETION APPROACH—-SIP EMISSION LIMITATION
ADEQUATE TO ATTAIN AMBIENT STANDARDS
EPA can approve SIP revisions which incorporate the
“ enforcement discretion approach” . Such an approach can
require the source to demonstrate to the appropriate State
agency that the excess emissions, though constituting a..
v-iolatiOn, were due to an unavoidable malfunction . Any
malfunction provision must provide for the commencement of a
proceeding to notify the source of its violation and to
determine whether enforcement action should be undertaken for
any period of excess emissions. In determining whether an
enforcement action is appropriate, satisfaction of the
following criteria should be considered :
* The term “excess emission” means an air emission rate which
exceeds any applicable emission limitation, and
“malfunction” means a sudden and unavoidable breakdown of
process or control equipment.

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1. To the maximum extent practicable the air pollution
control equipment, process equipment, or processes were
maintained and operated in a manner consistent with good -
practice for minimizing emissions;
2. Repairs were made in an expeditious fashion when the
operator knew or should have known that applicable emission
limitations were being exceeded. Off—shift labor and overtime
must have been utilized, to the extent practicable, to ensure
that such repairs were made as expeditiously as practicable;
3. The amount and duration of the excess emissions
(including any bypass) were minimized to the maximum extent
practicable during periods of such emissions;
4. All possible steps were taken to minimize the impact
of the excess emissions on ambient air quality; and
5. The excess emissions are not part of a recurring
pattern indicative of inadequate design, operation, or
maintenance.
III. EXCESS EMISSIONS DURING START—UP, SHUTDOWN, AND
MAINTENANCE
Any activity or event which can be foreseen and avoided,
or planned, falls outside of the definition of sudden and
unavoidable breakdown of equipment. For example, a sudden
breakdown which could have been avoided by better operation
and maintenance practices is not a malfunction. In such
cases, the control agency must enforce for violations of the
emission limitation. Other such common events are start—up
and shutdown of equipment, and scheduled maintenance.
Start—up and shutdown of process equipment are part of
the normal operation of a source and should be accounted for
Tn the design and implementation of the operating procedure
for the process and control equipment. Accordingly, it is
reasonable to expect that careful planning will eliminate
VIolations of emission limitations curing sucn perloas .
If excess emissions occur during routine start—up and
shutdown of such equipment, they will be considered as having
resulted front a malfunction only if the source can demonstrate
that such emissions were actually caused by a sudden and
unforeseeable breakdown in the equipment.
Similarly, scheduled maintenance is a predictable event
which can be scheduled at the discretion of the operator, arid
which can therefore be made to coincide with maintenance on

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produCtiOT equipment, or other source shutdowns.
onseqUefltlY , excess em1S510flS Uriflg perioøsof scheduled
maintenance should be treated asa vi Ti 1on unless a source
ih demonstrate that uch etnissf nS Could not have been
avoided through better scheduling for maintenance or through
better operation and maintenance practices.

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SECTION C DOCUMENT 6
Source Specific SIP Revisions
07129183
6

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Tj UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
____ WASHINGTON. 0 C. 20460
C,,
O ICE O
AIR, NOISE. ANO RA0IA1 PQN
MEMORANDUM
SUBJECT: Source Specific SIP Revisions
FROM: Sheldon Meyers, Director
Office of Air Quality Planning and Standards (ANR-443)
T0: Director, Air and Waste Management Division
Regions II—IV, VI-VITI, X
Director, Air Management Division, Regions I, V, IX
We have recently noticed a significant increase in the number of
source specific SIP revisions being processed. While no single reason can
explain the increase entirely, It appears that the improved ability of
Regions to process such actions as well as the passage of compliance dates
has led to the increase. It is imperative that Regions determine whether
SIP revisions are the appropriate administrative mechanism to deal with
these actions and that these submittals be adequately supported. In this
regard I am making the following recommendations:
Many of these subinittals consist of relaxations for individual
sources-in nonattainment areas. Presumably, the States want not only EPA
approval of .these relaxations, but also maintenance of the overall approval
status of their SIP’s. Hence, they are not asking for EPA to approve
the relaxations if that would mean that the construction ban would come
Into or continue in effect. f r a State to secure EPA approval nf p
relaxation arid continue overall approva1 status, however, the Stat wnul
ti how that the SIP as a whole des ite the relaxation would
continue to rovid - 0 in the case of
nonextension areas or as expeditiously as practicable., u no r han
B7 in extension areas. For VOC this generally will require a data bise
and modeling demonstration consistent with that applied in extensiofl
aceas For TSP and this will require a modeling demonstration using
reference modeling techniques and best available data. I recommend that
the g ions return to the States as incomplete any _ Sj tnittal that does
not include the above demonstration .
o Each Region that Is currently experiencing an increase in the number
of source specific SIP revisions f or areas In attainment, or where the
attainment date has not passed, should discuss with Its States whether
individual SIP revisions are the most appropriate means to deal with an
action. Where alternative administrative mechanisms exist or can be
developed without adversely Impacting the Federal enforceability of the
SIP, these mechanisms should be employed. For example, Regions coul4
negotiate with States to bundle source specific revisions into a more
mprehensive submittal rather than submit a number of individual actions.

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2
Where the State is considering submitting a revision of a temporary
nature, such as a compliance date extension for e limited period of time
(e.g., less than the time it would reasonably take to process the submittal),
Regions should evaluate whether processing the action will serve any
tangible public interest. Where the Region does not find any such circum-
stances exist, States should be discouraged from using the SIP process
for such actions.
I believe these recommendations should help you in your review of
future SIP revisions and help Regions maintain the excellent record for
SIP processing. If -ycu have any questions regarding these recommendations,
please contact 6. 1. Helms at FTS 629-5526 oc-4t*ru R snlc dt-P 2
cc: Air Branch Chief, Regions I-X
Darryl Tyler
Ed Reich
Bill Pedersen
Mike Alushin
Chuck Elkins
Jack Hidinger

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SECTION C DOCUMENT 7
Policy on SIP Revisions Requesting Compliance Date
ExtensiO”S for voc Sources
08/07/86
7

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6;. ,,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFflCEOF
All AND RADIATION
MEMORANDUM
SUBJECT: Policy on SIP Revisions Requesting Compliance Date
Extensions for VOC Sources
FROM: s t 7 istrator
for Air and Radiation ,/7’ ,7
TO: Regional Administrators V 7
Regions I—X
A nurtber of States have asked EPA to approve SIP revisions
granting compliance date extensions for individual VOC sources
in ozone nonattajnment areas. The attached Dolicy sets forth
EPA’s position on when approval of such SIP revisions is
appropriate and what the States must demonstrate in order for
EPA to approve them. Regional Offices should review the
requests for SIP revisions for conformance to this policy.
SIP revisions now pending at Headquarters will also need to
be reviewed by the Regions in light of this policy.
Attachment
cc: Richard H. Mays, OECM
Gerald A. Emison, OAOPS
Alan Eckert, OGC
Air Division Directors, Regions i—x
Regional Counsels, Regions I—X

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policy on SIP Revisions Requesting COmI)liaflCe Date
Extensions for VOC Sources
In order to approve a source—specific compliance date
extensiOn, two tests must be met. First, a State must
demonstrate that the extension will not interfere with timely
attainment (attainment by the formally established attainment -
date) and maintenance of the ozone standard and, where relevant
reasonable further progress” (RFP) towards timely attainment. 1/
The attainment date will generally be December 31, 1982, or the
date established under Section 110 where the State has adequate-
ly responded to a request for SIP revisions under §].1O(a)(2)(H),
or December 31, 1987 in ozone extension areas. The demonstra—
tion may be based on a comparison between the margin for
attainment predicted by the demonstration submitted with the
approved ozone SIP 2/ and the increased emissions that would
result under the prooosed compliance date extension. 3/ If
there is an adequate margin to absorb the increased emissions
(and the extension would not interfere with RFP), then EPA
may conclude that the compliance date extension will not
interfere with the attainment and continued maintenance of
the ozone standard.
1/ The reference to a demonstration of RFP towards timely
attainment is not intended to redefine RFP but only reaffirms
that an RFP analysis is recuired.
2/ For areas where revisions to the Part 0 SIP are required
(such as 1987 extension areas or SIP call areas) and those
revisions have not been fully approved, the State would have
to submit a demonstration the eguivalent of that required
for EPA approval of the ozone SIP. Without an approvable
demonstration EPk cannot determine whether the individual
compliance date extension will interfere with timely attain-
ment and vmaintenanCe of the standard, or with RFP. A
de minim$s showing would not be acceptable, since in the
aggregate even very small sources would contribute signifi-
cantly to ozone formation.
3/ In making such a comParison it will he necessary to
termine what, if any, portion of the margin has been utilized
by new sources of VOCs that may have located in the area
since the SIP was anproved, as well as by existing S /DC sources
that may have already been granted,crr sp1ianCe date extensions.

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—2--
If the State or EPA believes that there has been a substantial
change in the inventory of VOC sources or total V )C emissions
since the ozone SIP was approved so that the margin of attain-
ment has chanaeci significantly, a revised de st çation in
support of the source—specific SIP revision1 j ouj jbe submit-
ted. 4/
Second, time extensions also must he consistent with the
requirement that nonattainrnent area SIPs provide for “imolemen-
tation of all reasonably available control measures as
expeditiously as Dracticable” ( l72(b)(2)]. Expeditiousness
should he demonstrated by determining when the source was
first put on notice of the applicable requirement (e.g.,
adoption of the current reiulation by the State) and the time
that has elapsed since then. EPA has generally determined
that for most ‘i C sources this period is less than three
years. 5/ Any source—spec .;ic SIP revision for a compliance
date extension within these timeframes may he presumed to be
expeditious. Compliance date extensions for periods longer
than these timeframes, however, should be closely scrutinized
to determine whether or not they are truly expeditious. 6/
This should include an examination of the compliance sta s of
other sources nationally in the same VOC source cateoory
(this examination would be the responsibility of the State),-
and the most expeditious means of compliance available (includ-
ing add on control equipment, process change, or raw material
improvement) irrespective of the method proposed in the SIP
4/ Such a demonstration would he necessary, for example, in
areas originally demonstrating attainment by 1q82, hut for
which post—1982 monitoring data are indicating exceedances of
the ozone standard or raisinq serious questions about the
original nredictjon of attainment.
5/ For three source categories (can coating onerations,
graphic arts printing and automotive assembly plant paint
shop operations), based on industry experience EPA has
through policy statements concluded that expeditiousness may
be longer than three years.
6/ The same holds true for re”iew of individual compliance
date extensions incorporated in any area—wide ozone SI
revisions •submitted by a State (such as those bein submitted
pursuant to an EPA SIP call under Section llO(a)(2)(M)). n”
change in the original deadline for an individual VOC source
incorporated in an area—wide ozone SIP revision must be
demonstrated to be expeditious (as well as not interfere with
timely attainment and maintenance).

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—3—
revi 10fl. Unless it can he shown that the original timefrarne
approved in the SIP did not allow sufficient time for an
economically and technologically feasible compliance plan to
be implemented, a SIP revision for a compliance date extension
beyond the timeframes set forth above should be denied.
In conclusion, both the demonstration of timely attainment
(including RFP where relevant) and maintenance and the
expeditiousness tests must be met before a State SIP revision
can be approved.
3. pp ig Pott’r
Asé(stant Add i.nistrator
for Air and Radiation
iS T O6

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SECTION C DOCUMENT 8
Review of State Implementation Plans and Revisions for
Enforceability and Legal Sufficiency
09/23/87

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o
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
SEP 23 987
MEMORANDUM
SUBJECT: Review of State Implementation Plans and Revisions
for Enforceability and Legal Sufficiency
FROM: 3. Craig Potter ,./ 2 1
Assistant Administrator
for Air and Radiation )
Thomas L. Adams Jr. L.
Assistant Administrator for Enforcement
and Compliance Monitoring
Francis S. Blak ( hL_.
General Counsel
Office of General Counsel
TO: Addressees
One critical function that your offices perform is to
assure that regulations developed for stationary sources
by the States under the Clean Air Act are enforceable and
legally sufficient. Our regulations require that the state
implementation plans (“SIPs”) must “be adopted as rules and
regulations enforceable (emphasis added) by the State agency”
(40 C.F.R. S51.28]. (1987)). We are concerned that review of
SIPS for enforceability has not been receiving adequate atten—
tion. The Agency sometimes experiences difficulties in its
efforts to enforce the current rules because they are not
sufficiently clear. The Regional Offices are at the forefront
of the federal SIP approval process. The purpose of this
memorandum is to remind you of the importance of doing the
review necessary to assure that all SIP plans and revisions
are enforceable and in conformance with the Act. Please do not
forward for approval SIPs which fail to satisfy the enforce-
ability criteria in this memorandum.
Background
Recent information indicates that the attention being paid
to SIP approvals is declining, particularly for enforceability.
The Office of General Counsel reviews regulations as to their
adequacy under applicable law and Agency policy, but not for
nforceability. This void is not being filled by other offices.
ten, the problems with enforcing the regulations are not
;fllediately obvious and only become known where a case or issue
cuses on the particular regulation. At the October 1986

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—2-
Annapolis meeting of Air Program Directors and Regional Counsel
Air Branch Chiefs, a number of problems in recent enforcement
cases due to difficulty in interpreting and enforcing regula-
tions were discussed. With the recent work being-done to
address the nonattainment problem, it is even more critical
that regulations be clear and enforceable.
It is appropriate that the Regional air compliance staff
and the Regional Counsel’s Office have primary responsibility
for this enforceability review because they have the most direct
experience in compliance and rule interpretation. They also
have resources allocated through their workload models specifi-
cally for SIP review.
Timing of Review
The Regions should try to review developing State SIP
provisions prior to final approval by the State, when the
provisions are at their most malleable stage. In line with
this, each Region should provide its States with a copy of the
implementing guidance associated with this memorandum and a
briefing which outlines the enforceability requirements for new
SIP submittals. If we provide the States with more explicit
guidance and make earlier contacts to resolve problems, we can
avoid instances where EPA is pressured to settle for a flawed
regulation only because it is better than its predecessor.
Enforceability Criteria
Your review should ensure that the rules in question are
clearly worded and explicit in their applicability to the
regulated sources. Vague, poorly defined rules must become a
thing of the past. SIP regulations that deviate from this
policy are to be disapproved pursuant to Section 110(a) of the
Clean Air Act, with appropriate references in the C.F.R. Speci-
fically, we are concerned that the following issues be directly
addressed. The rule should be clear as to who must comply and
by what date. The effect, if any, of changed conditions (e.g.,
redesignation to attainment) should be set forth. The period
over which compliance is determined and the relevant test
method to be used should be explicitly noted. Provisions which
exempt facilities under certain sizes or emission levels must
identify explicitly how such size or level is determined.
Also, provisions which allow for “alternate equivalent techniques”
or “bubbles” or any other sort of variation of the normal mode
of compliance must be completely and explicitly defined and must
make clear whether or not EPA case—by—case approval is required
to make such a method of compliance federally effective.

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—3—
Con ci U Si On
sr? revisions shoulff be wri tên clearly, with explicit
language to implement their intent. The plain languaae of all
rules, as well as the related Federal Register notices, should
be complete, clear and consistent with the intended purpose of
the rules. Specific review for enforceability will be a further
step in improving the overall SIP process and structure.
We have attached detailed guidance to assist you in
implementing this memorandum.
Attachment
Addressees:
Regional Administrators
Regions I—K
Regional Counsels
Regions I—K
Air Management Division Directors
Regions I, III and IX
Air and Waste Management Division Director
Region II
Air, Pesticides, and Toxics Management Division
Directors
Regions IV and VI
Air and Radiation Division Director
Region V
Air and Toxics Division Directors
Regions VII, VIII and X
cc: Deputy Regional Administrators
Regions I—X
Regional Counsel
Air Contacts
Regions I—X
Air Compliance Branch Chiefs
Regions II, III, IV, V 1 VI, IX
Air Program Branch Chiefs
Regions I—X
Darryl Tyler, Director
Control Programs Development Division
Gerald Emison, Director
Office of Air Quality Planning and Standards

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—4—
cc: John S. Seitz, Director
Stationary Source Compliance Division
Office pf Air Quality Planning and Standards
Alan W. Eckert
Associate General Counsel
Air Division
Michael S. Alushin
Associate Enforcement Counsel
Air Enforcement Division

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1 tO S?4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
SEP 2 3 1987
MEMORANDUM
SUBJECT:
FROM:
Review of State Implementation Plans and Revisions
for Enforceability and Legal Suffici ncy
Michael S. Alushin 411
Associate Enforcement Counsel
for Air Enforcement
Alan W. Eckert
Associate Gener Co nsel
Air and Radiation Division
John S. Seitz, Director
Stationary Source Compliai
Office of Air Quality P1
TO: Addressees
ng and Standards
This is to provide implementing guidance on the memorandum
issued by J. Craig Potter, Thomas Adams and Francis Blake
on this date relatina to review of SIP plans and revisions
for enforceability and legal sufficiency. we urge you to
provide copies of these memoranda to your State Agency Directors.
Applicability
This guidance applies to all SIP proposals which have
not completed the state or local agency legal and procedural
requirements for SIPs. For proposals that have not yet
been submitted to the Regional office for action, the state
and local agencies have forty—five (45) days from the date
of this guidance to submit such proposals for review in order
for the proposal to be considered under previous procedures.
SIP packages currently in Headquarters will undergo the usual
review but will be returned to the Regions if they contain
deficiencies which raise significant Questions as to whether
the regulation would be enforceable.
Enforceability Criteria
The notion of enforceability encompasses several concepts.
At the most basic level, a regulation must be within the statutory
authority of the promulgating agency. For example, some states
have Statutory restrictions or prohibitions on the promulgation
of regulations more restrictive than the federal counterpart.

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—2—
Although we should generally defer to a State’s interpretation of
the scope of its authority, when there is reaL doubt we
should, at a minimum, consult the responsible State Attorney to
be certain the issue has been considered and resolved. When
appropriate, an opinion letter should be obtained from the
State Attorney General.
Please ensure that the following additional issues are
directly addressed.
App licability
It should be clear as to whom the regulation applies. The
SIP should include a description of the types of affected
facilities. The rule should also state in which ais the rule
a 1T (entire state, specific counties, nonattaininent, etc.)
and advise the reader that State administrative changes require
a formal SIP revision. Also, some regulations might require a
certain percentage reduction from sources. The regulation
should be clear as to how the baseline from which such a reduction
is to be accomplished is set. In some cases it may be necessary
for enforcement purposes and independent of Clean Air Act
requirements for the SIP to include an inventory of allowable
and actual emissions from sources in the affected categories in
order to set the above baseline.
o Time
The regulation should specify the r u ired date of
compliance. Is it upon promulgation, or approval by EPA, or a
£üYè te certain? Future effective dates beyond the
approved or proposed attainment date should not be allowed
unless the related emissions reductions are not needed for
attainment. Also, the regulation should specify the important
dates required of any qc pliance schedule which is required to
bes .i iitt . by the source to the state.
o Effect of Changed Conditions
If changed circumstances affect an emission limit or other
requirement, the effect of changed conditions should be clearly
specified. However, you should not approv& state regulations
which tie the applicability of VOC control requirements to the
noriattainment status of the area and allow for automatic nullifi-
cation of the regulations if the area is redesignated to an
attainment status. Such regulations should continue to apply
if an area is redesignated from nonattainment to attainment
status unless a new maintenance demonstration supporting a change
in the rule’s applicability is submitted and approved by EPA.

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.3 : - ..
Standard of Conduct
The regulation must be sufficiently specific so that a
source is fairly on notice as to the standard it must meet.
For example, “alternative equivalent technique” provisions
should not be approved without clarification concerning the
time period over which equivalency is measured as well as
whether the equivalency applies on a per source or per line
basis or is facility wide.
o Incorporation by Reference
Some federal regulations are inappropriate for adoption
by reference. For example, a state intending to enforce PSD
regulations adopted by reference must adopt 40 C.F.R. S52.21,
not 40 C.F.R. S51..166, as only the former is written in a form
imposing obligations on permit applicants. Even then, changes
may have to be made to take into account the difference between
the State’s situation and EPA’S.
o Transfer Efficiency
Some states have attempted to provide particular VOC
sources with relaxations of compliance limits in return for
improvements in the efficiency with which the sources use the
pollutant producing material. Any rules allowing transfer
efficienc to be used in rmij ingç jiip1i nce must be expjj it
w en and under what circumstances a source may use improved
transfer efficiency as a substitute for meeting the SIP limit.
Such provisions must state wh her EPA a proval is required on
a e—by—case basis . Also, such provisions may not simply
reference the NSPS auto coating tables for the transfer
efficiency. The improvement should be demonstrated through
testing and an appropriate test method should be set forth.
Implied improvements noted by the NSPS auto coating TE
table are not to be accepted at face value.
O Compliance Periods
SIP rules should describe explicitly the coapliance time
frame associated with each emission limit (e.g. instantaneous,
stack test, 3 hour average or daily). The Regions should not
assume that a lack of specificity implies instantaneous compliance.
The time frame or method employed must be sufficient to protect
the standard involved.
O Equivalency Provisions and Discretionary Emission Limits
Certain provisions allow sources to comply via “bubbles”
or “alternate ecuivalent techniaues” or through mechanisms
“as approved by the Director.” These provisions must make it

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—4—
_ , •
clear as to w ther EPA approval of state granted alternative
compliance techniques is recuired on a case—by—case basis in
order for the changed mode of compliance to replace the existing
federally enforceable requirement. If EPA case—by—case approval
wj)J not be required, then specific. ohj. ctive and replicab.l.
crf èria must be set forth for determining whether the new
arrangement is truly equivalent in terms of emission rates and
ambient impact. Such procedures must be consistent with the
control levels specified in the overall SIP control strategy
and must meet other EPA policy requirements, including the
“Emissions Trading Policy tt , 51 Fed. Reg. 43814 (1986), in
relevant instances.
Recordkeeping
The SIP must state explicitly those cQ s which sources
are required to keep to assess compliance for the time frame
specified in the rule. Records must be commensurate with regula-
tory requirements, and m t be avpil .b1e lor exajnijia ion n
re. ie . The SIP must give reporting schedules and reporting
formats. For example, these rules must require daily records
if the SIP requires daily compliance. Additionally, the reç.ord-
keeping must be required such that failure to do so would bea
separate violation in itself.
o Test Methods
Each compliance provision must list how compliance is
to be determined and the appropriate test method to be used.
The allowable averagin 9 times should be explicit . Both the
test method and averaging times employed must be sufficient
to protect the ambient standard involved.
o Exemptions
If sources under a certain size are e pted from control
requirements, the regulatioh must identify how the size of a
particular source is to be determined .
o MalfunctiOn and Variance Provisions
Any malfunction or variance exemptions must be ç. r in
their sub tantive application andin ho ithey are triggered.
The rule must specity wliat exceedances may be excused, how the
standard is to be applied, and who makes the determination.
Conclusion
We appreciate your attention to this matter and hope
that the specific review for enforceability will be a further
step in improving the overall SIP process and structure.
To assist you, we have attached an enforceability checklist.
This checklist should be included as part of your technical
support packages in all future SIP packages.

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—5—
Please contact the appropriate staff attorney in the Office
of General Counsel or the Office of Enforcement and Compliance-
Monitoring should you have any questions concerning issues of
enforceability in particular instances. Please contact Tom
Helms, OAQPS, FTS—629—5526, for other questions concerning
implementation of this guidance.
Attachment
Addressees:
Regional Administrators
Regions I—X
Regional Counsels
Regions I—X
Air Management Division Directors
Regions I, III and IX
Air and Waste Management Division Director
Region II
Air, Pesticides, and Toxics Management Division
Directors
Regions IV and VI
Air and Radiation Division Director
Region V
Air and Toxics Division Directors
Regions VII, VIII and X
cc: Deputy Regional Administrators
Regions I—X
Regional Counsel
Air Contacts
Regions I—X
Air Compliance Branch Chiefs
Regions II, III, IV, V , VI, IX
Air Program Branch Chiefs
Regions I—X
Darryl Tyler, Director
Control Programs Development Division
Gerald Emison, Director
Office of Air Quality Planning
and Standards

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Attachment
SIP APPOVABILITY cHEcKLIsT— ENFORCEABILITY
SIP Package No. - Date Rec. Date Due _____________
STATE: _________________________________
Subject Matter:
( Specific Provision and Dèicription) -
Enforceability Analysis - State Submittal EPA Requirement Approvabjljty (Approvable or Not)
- - ( list responses )
1. Applicability
-a. What sources are being Clarity
regulated?
b. What are criteria for Clarity
exempt ion?
C. Is calculation Example calculation or
procedure for exemption clear explanation of
clearly specified? how to determine
exemption (line by line,
etc.)
d. Is emission inventory Inventory including
listed in the allowable and actual
background document emissions in source
of the attainment category should be
demonstration? included, for enforce-
ment purposes and
independent of any Clean
Air Act requirements,
in the attainment demon—
stration’if such data is
necessary for d4ermin—
inq baselines in regula—
3.

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Enforceahi ii tv 1 na1ysis
State Submittal EPA Reauireinent
rovability (Approvable or Not
e. Is the averaqing time(s)
used in the rule differ-
ent from that of the
ambient standard?
f. What are the units of
compliance (lbs VOC per
gallon of solids
applied less water,
grains per standard
cubic foot?)
g. Is bubbling or averag-
ing of any type
allowed? If yes,
state criteria.
Could a U.S. EPA
inspector independently
determine If the
criteria were met? Does
EPA have to approve
each case?
The averaging time in the
rule must be consistent
with protecting the ambient
standard In question.
Normally, it should be equal
to or shorter than the
time associated with the
standard. Longer term
averaging is available
only in limited instances
provided that the ambient
standard is not compromised.
Clearly
rule
stated in the
Explicit description of
how averaging, bubbling,
or eauivalency is to be
determined. VOC
eauivalency must be on
a “solids applied”
basis. Any method must
be independently re-
producible. Provision
must be explicit as to
whether EPA case-by—
case approval required.
If provision intended
to be “generic” then EPA
bubble policy must be
met.

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Enforceability Analysis
h. If there Is a redesigna—
tion, will this change
the emission limita-
tions? If yes, which
ones and how?
State Submittal
EPA Requirement
Regulation may not
automatically allow for
self nullification upon
redesignat ion of area
to attainment. New
maintenance demonstra-
tion required in order
to drop regulation.
Approvability (Approvable or Not
2. Compliance Dates
a. What is
date?
,b. What is
date?
compl lance
the attainment
Must not be later than
approved or about to
be approved date of
attainment unless
emission reductions not
necessary for attain-
ment. In some cases,
it will be necessary
for the regulation to
specify dates in compli-
ance schedules that are
required to be submitted
by source to state.
3. Specificity of Conduct
a. What test method is
required?
b. What Is the averaging
time in compliance
test method?
c. Is a compliance
calculation or
evaluation required?
(i.e., daily weighted
average for VOC).
ii. If yes to “C,” list
he formula, period of
ompliance, and/or
evaluation method.
Test method must be
explicitly stated.
Averaging time and
application of limit
must be explicit.
rmula must be
licit.

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Enforceability Analysis
State Submittal EPA Reauirement
lApprovability (AnDrovable or Not)
4. Incorporation by Reference
a. What is state authority
for rulemaking?
b. Are methods/rules
incorporated by
reference in the
right manner.
5. Recordkeeping
a. What records are
required to determine
conipliance?
b. In what form or units
(lbs/gal, qr/dscf,
etc.) must the
records be kept? On
what time basis
(instantaneously,
hourly, daily)?
c. Does the rule affirm-
atively recuire the
records be kept?
Clarity
Records to be kept
must be consistent
with units of
compliance in the per—
for mance requirements,
includinq the appli-
cable time period.
There must be a clear
separately enforceable
provision that requires
records to be kept.

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Enforceability Analysis State Submittal EPA Recuirement - -- Approvability (Approvable or Not)
6. Exemptions
a. List any exemptions Must be clearly defined
allowed, and distinguishable from
what constitutes a
b. Is the criteria for violation.
application clear?
7. Malfunction Provisions Rule must specify what
exceedances may be
excused, how the
standard is to be
applied, and who makes
the determination.

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SECTION C DOCUMENT 9
Revised Guidance on Enforcement During Pending State
Implementation Plan Revisions
9
revised 03/01/91

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8?4
r 1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
M4R
OFFICE OF ENFORCEMENT
MEMORANDUM
SUBJECT: Revised Guidance on Enforcement During Pending SIP
Revisions
FROM: Michael S.
Associate Enforcement Counsel for Air
Office of Enforcement
John B. Rasnic, Acting
Stationary Source Compliance D isbn
Office of Air Quality Planning and Standards
TO: Addressees
Attached is final guidance on the above-referenced subject.
We issued this guidance in draft on December 19, 1990. The final
policy attempts to reflect comments received from several of the
Regions submitted in response to that draft.
Existing guidance (Aug. 29, 1989) attempted to adapt Agency
policy to the unsettled judicial landscape which prompted the
Supreme Court to grant certiorari to hear the General Motors
case. Now that the Supreme Court has overturned unfavorable
precedents which had restricted EPA authority, and the Clean Air
Act Amendments of 1990 have added a new twelve month SIP revision
review deadline, we have developed this guidance to encourage
more vigorous federal enforcement of state implementation plans.
Some commenters asked for clarification of the meaning of
“high probability” in Subpart D of the new policy. The draft has
been amended to make clear that only SIP revisions which have
been formally proposed by the State may have a high probability
of approval. Assessing the likelihood of approval, prior to
reviewing the supporting data contained in a formal application
by the State, in most instances would be inherently difficult.
Moreover, timely submittal of complete SIP revision applications
should be encouraged.
One cominenter asked that we define “adverse environmental
impacts” in Part I, Subpart C, to include non-quantifiable
impacts such as damage to the Agency’s integrity. We have done
so. This same cotnmenter asked that we remove the paragraph
discussing the old guidance to avoid confusion. Since the new
Pnr7te 0 ,7 Recyc’ed caper

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2
guidance supersedes the old, we are in agreement that inclusion
of this paragraph would be surplusage and potentially confusing
to cursory readers. We, therefore, have removed it.
Another commenter suggested that we expand the discussion on
factors contributing to prejudice to defendants. In response we
have asked that Regions consider, among other added factors,.
whether the existence of a collateral suit indicates the
defendant has been prejudiced.
In conclusion, the need for more vigorous SIP enforcement
has been amplified by our continuing ozone nonattainment problem
and an anticipated increase in the number of proposed SIP
revisions resultant from the 1990 Amendments. We are hopeful
this document will provide valued assistance to the Regions in
their efforts to enforce state implementation plans.
This guidance supersedes the “Revised Guidance on
Enforcement of State Implementation Plan Violations Involving
Proposed SIP Revisions,” dated August 29, 1989. Please insert
this document in its place at Part E, Document #32 of the Clean
Air Act Policy Compendium.
Attachment
Addressees:
Regional Counsels
Regions I—X
Regional Counsel Air Contacts
Regions I-X
Air and 1 Waste Management Division Director
Region II
Air Management Division Directors
Regions I, III, and IX
Air and Radiation Division Director
Region V
Air, Pesticides, and Toxics Management Division Directors
Regions IV and v i
Air and Toxics Division Directors
Regions VII, VIII, and X
Air Compliance Branch Chiefs
Regions I-X

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3
Alan Eckert
Off ice of General Counsel
Robert Van Heuvelen, Acting Chief
Environmental Enforcement Section
U.S. Department of Justice
cc: James H. Strock
Assistant Administrator for Enforcement
William G. Rosenberg
Assistant Administrator for Air and Radiation

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UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY
WASHINGTON, D.C. 20460
MAR - 1991
OFFICE OF ENFORCEMENT
MEMORANDUM
SUBJECT: Revised Guidance On Enforcement During Pending SIP
Revisions
FROM: Michael S. Alushin , ‘J 4i ’
Associate Enforcement Counsel f
Off ice of Enforcement
John B. Rasnic, Acting Di.
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
TO: Addressees
Less than a year following our last guidance document
addressing the above subject (August 29, 1989) the United States
Supreme Court handed down its decision in General Motors Corp. v.
United States (Qj ), — U.S. —, 110 S. Ct. 2528 (1990), which
affirmed the Agency’s authority to bring enforcement actions even
after EPA review of proposed State Implementation Plan (SIP)
revisions has exceeded four months. In addition, the Clean Air
Act was amended in October, 1990 to include, inter alia , a new 12
month review period for proposed SIP revisions.
In the wake of both this ruling and the recent amendments 1
to the Act, this revised guidance is intended to assist the
Regions in deciding when to bring enforcement actions while SIP
1 §110(a) (3), 42 U.S.C. §7410, of the amended Act imposes
a twelve month deadline for EPA SIP revision review:
Within 12 months of a determination by the
Administrator (or a determination deemed by operation
of law) under paragraph (1) that a State has submitted
a plan or plan revision (or, in the Administrator’s
discretion, part thereof) that meets the minimum
criteria established pursuant to paragraph (1), if
applicable (or, if those criteria are not applicable,
within 12 months of submission of the plan or
revision), the Administrator shall act on the
submission in accordance with paragraph (3).
Printed on Recycled Paper

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2
revisions are pending. It should be emphasized from the outset
that the Supreme Court’s ruling in has substantially lowered
the level of caution which must be exercised in deciding whether
to bring cases involving proposed SIP revisions, even in those
instances where the new 12 month period has been exceeded.
This document begins with a statement of the Agency’s new
policy on SIP enforcement during the pendency of proposed
revisions. Background material and a summary of the Supreme
Court ruling in Q follow the policy statement.
I. POLICY
The Supreme Court’s recent ruling in in conjunction with
the 1990 amendments to the Clean Air Act, have resulted in a
marked shift in the law regarding EPA’s enforcement authority
during the review of proposed SIP revisions. The ruling in
affirms the Agency’s authority to enforce existing SIPs, even
when the Agency has unreasonably delayed the review of proposed
revisions. The remedy for unreasonable Agency delay is a suit to
compel Agency action or a diminution in penalties depending on
the degree of prejudice caused to the defendant. Although the-
amendments create a presumption that Agency review beyond 12
months constitutes unreasonable delay, our authority to enforce
the existing SIP, through penalties or injunctive relief, remains
after that date. In short, has effectively reduced, but not
eliminated, the level of caution to be exercised when the Agency
has consumed more than 12 months in reviewing SIP revisions.
This guidance encourages Regions to vigorously pursue
violators of existing SIPS with a sensitivity for the particular
facts of individual cases. The guidance sets forth factors to
consider, in addition to those enumerated in the Qcto er 10,
1990, memorandum on Enhanced Regional Case Screening, in
selecting appropriate enforcement responses to SIP violations
involving pending review of proposed SIP revisions. The list has
been developed in consideration of ‘s holding on the issue of
the appropriate remedy for unreasonable Agency delay in reviewing
proposed SIP revisions. The holding is two-fold; (1) a defendant
may obtain reductions in penalties commensurate with a trial
court’s determination of the degree of prejudice caused to a
defendant by EPA’s delay; and, (2) EPA will be subject to
collateral citizen suits to compel Agency action for unreasonable
delays in reviewing SIP revisions. Following is a list of
factors Regions should consider in determining appropriate
enforcement responses in SIP cases affected by proposed revisions
which have been pending before the Agency for more than 12
months.

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3
A. Need For In-junctive Relief In Cases of Ongoing
Noncomp 1 lance
Despite the existence of unreasonable Agency delay in
reviewing a particular SIP revision for more than 12 months, if a
case justifies injunctive relief for an ongoing violation, the
Region should proceed with civil enforcement. Since the primary
purpose of such cases is to compel compliance, the risk of any
diminution in penalties is of secondary concern. Cases involving
compliance with a proposed revised SIP, which is likely to be
approved, are discussed in Subpart C of this Part.
B. Penalty—Only Cages Involving A Long Period of
Noncompliance In Comparison To The Length of Agency
Delay
In the wake of trial courts in enforcement actions will
take into consideration the degree of prejudice caused to
defendants by Agency delay in reviewing proposed SIP revisions
for longer than the 12 months allotted by the Act. Therefore,
the utility of proceeding with penalties-only actions diminishes
in proportion to the degree of prejudice caused to defendant.-
Regions should consider the period of noncompliance in relation
to the period of unreasonable EPA delay in reviewing SIP
revisions beyond 12 months in deciding whether to pursue a
penalties-only action.
Therefore, in those cases which involve a comparatively long
period of noncompliance in relation to the length of EPA’s delay
in reviewing a proposed SIP revision beyond 12 months, the Region
should proceed, absent other factors militating against the suit.
If, however, the period of noncompliance is short in comparison
to the period of EPA delay, and other factors which would tend to
increase the penalty (ie. significant environmental impact and
economic benefit) are absent, Regions may want to consider
withholding the action. The anticipated penalty recovery in such
cases may not justify the resource burden placed on the Agency
and the Department of Justice to litigate the case. Once again,
if there exists a need for injunctive relief, Regions should
proceed irrespective of any elevated risk that the penalty will
2 Please note that the Clean Air Act Amendments of 1990
amended paragraph (e) of §113, 42 U.S.C. §7413, to effectively
shift the burden of proof to defendants on the issue of ongoing
violations. New S1l3(e) states that, for the purposes of
determining the number of days of violation for which a penalty
may be assessed, once the Government makes a prima facie showing,
the days of violation shall be presumed to include the date of
notice issued to the source of the violation, and each and every
day thereafter until the violator establishes continuous, or
intervening, compliance.

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4
be reduced.
C. Cases Involving A High Probability That The Proposed
SIP Revision Will Be Approved
In instances where the source is in compliance with a
proposed SIP revision, submitted in a formal application by the
State, and which has a high probability of approval, the need for
injunctive relief does not exist. However, there may still exist
a justification for pursuing penalties, particularly where the
source has been in violation of the existing SIP for a
substantial period.
Therefore, where there exists a high probability that the
proposed SIP revision will be approved, the Region should once
again consider the length of noncompliance in relation to the
length of unreasonable Agency delay in reviewing the proposed
revision. If the length of noncompliance is substantial in
relation to the length of EPA delay, the Region may still wish to
pursue a penalties-only claim despite imminent approval of the
pending SIP revision.
However, as in any case, the Region should weigh the
particular equities of each case in deciding whether a penalties-
only claim is merited. If the source’s noncompliance with the
existing SIP is technical in nature, and does not have adverse
environmental impacts , a penalties—only action may be
inappropriate notwithstanding a lengthy period of noncompliance.
Alternatively, in those rare cases where a source obtains relief
through a SIP revision which allows it to gain some economic
advantage with adverse environmental consequences, a penalties-
only claim may be warranted; especially if the period of
noncompliance with the existing SIP is lengthy. 4
Adverse environmental impacts are not limited solely to
quantifiable environmental impacts. They also may include damage
to the Agency’s broader deterrence aims in the regulated
community which may result from unaddressed noncompliance with
the existing SIP.
An example is an emission violation caused by the
source turning of f control equipment prior to obtaining the SIP
revision allowing it to do so. In this case, the source has
obtained an economic benefit from noncompliance, while causing
adverse environmental impact. A penalties-only action is merited
for the regulatory process violation.

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5
D. Whether The Existence of A Collateral Suit Compelling
Agency Action On A Proposed SIP Revision Indicates
Prejudice
An additional remedy available to regulated entities for
Agency delays in reviewing proposed SIP revisions is a collateral
suit to compel the Agency to act. Although the Supreme Court in
clearly ruled that the existing SIP remains enforceable
regardless of the pendency of any proposed revisions, 5 the
existence of a collateral suit to compel Agency action on a
pending SIP revision may affect the selection of the enforcement
response to the extent that it indicates the source is being
prejudiced by the delay.
Therefore, the Regions should consider whether the defendant
has sought to compel Agency action on the proposed revision when
evaluating whether the defendant is suffering any actual
prejudice from EPA’s delay on the SIP revision.
E. Assessing The Degree of Prejudice To The Defendant
Additional considerations may bear on the extent of possible
prejudice to the defendant. Clearly, if a defendant is not in
compliance with the proposed SIP revision, then little prejudice
has resulted. However, if the defendant is in compliance with
the proposed revised SIP, and the revisions to the SIP will
significantly reduced the defendant’s compliance costs, then EPA
delay in processing the proposed revision may very well cause
prejudice to the defendant. In this case, the Region should
wei 9 h the period of noncompliance against the period of EPA delay
as outlined above. Related factors which may support a decision
to bring a SIP enforcement action include whether the defendant
failed to make a good faith effort to comply with the existing
SIP or failed to plan for the possibility that the SIP revision
could be denied.
The Court recognized that the existing SIP remains
enforceable despite delay in review of a proposed revision. “The
language of the [ CAAJ plainly states that EPA ma r bring an action
for penalties or injunctive relief whenever a person is in
violation of any requirement of an ‘applicable implementation
plan’... [ t)here can be little doubt that the existing SIP remains
the ‘applicable implementation plan’ even after the State has
submitted a proposed revision... [ t]here is nothing in the statute
that limits EPA’s authority to enforce the ‘applicable
implementation plan’ solely to those cases where EPA has not
unreasonably delayed action on a proposed SIP revision.” 110
S.Ct. at 2533—34.

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6
F. Pre—Amendments Cases
Certain cases may involve a period of noncompliance, and a
now completed review of a proposed revision, both of which
occurred prior to the 1990 Amendments to the Act. Since the new
12 month period cannot be applied retroactively, EPA’s conduct in
reviewing proposed SIP revisions will be subject to the standard
existing before the amendments. In other words, the
reasonableness standard set forth in is applicable. Under
that standard, the court will look to the particular
circumstances surrounding EPA’s review of the proposed SIP
revision to determine if the length of time taken by the Agency
was “reasonable” pursuant to the mandates of the APA. If the
Agency can demonstrate that the length of time consumed in
reviewing the SIP revision was reasonable, then fortiori a
defendant cannot be prejudiced by that delay and a district court
cannot reduce penalties on this ground.
Factors which may support a decision to bring a SIP
enforcement action under these rather limited circumstances
include whether: (1) the notice and comment period has been
extended; (2) significant comments on proposed SIP revisions were
received after the comment period ended; (3) the Office of
Management and Budget reviewed the disapproval; (4) negotiations
between the Region and the State occurred to resolve issues in
advance; (5) the proposed revision required a complex equivalency
determination; and, (6) the proposed revision required a
determination of “Reasonable Further Progress” in a nonattainment
area.
II. Background
EPA currently reviews approximately 150 to 200 SIP revisions
each calendar year. Although the projected review time for such
revisions is fourteen months, in fact less than half of these
revisions are processed within this time period. Moreover, in
some instances, SIP revisions have taken four to five years to
review. Even with the administrative steps taken by EPA to
streamline the process ( State Implementation Plan Processing
Reform: Notice of Procedural Changes, 54 FR 2214, January, 19,
1989), and legislation establishing a longer deadline, SIP
enforcement cases will continue to be affected by SIP revisions.
In the past several years, the number of SIP enforcement
cases has declined substantially. This drop-off is cause for
some concern since the number of SIP violations during this
period has probably remained constant or even increased.
Although there are a number of reasons for this diminution, a
principal reason is that recent lower court decisions have ruled
against the agency in SIP enforcement actions for what was deemed
unreasonable agency delay when review of proposed SIP revisions
exceeded four months. The Agency is hopeful, however, that the

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7
Supreme Court’s recent decision in , in conjunction with the
amendments, will result in an increase in the number of SIP
enforcement actions in the coming months.
In the near future, proposed SIP revisions -are also expected
to increase substantially. With the amendments, SIP calls for
ozone nonattaininent, and new SIPS resulting from NAAQS revisio is
( e.g. , PM 10 ), the Agency’s workload will no doubt become heavier.
Thus the need for effective new guidance on exercising
enforcement discretion in cases involving proposed SIP revisions
has been magnified.
In recent years, a number of regulated parties successfully
argued in SIP enforcement actions that the four month limitation
on EPA review of original SIP submittals likewise applied to the
Agency’s review of proposed SIP revisions. In light of these
adverse opinions, we promulgated revised guidance on August 29,
1989 in an attempt to adapt agency policy to the unsettled
judicial landscape.
The combined effect of and the amendments have largely -
superseded our existing policy guidance on this issue. We have
therefore determined that a summary of Qj and the amendments is
needed to clarify the current law and provide a guidepost for
deciding when to bring SIP enforcement actions while proposed SIP
revisions are pending.
III. Summary of General Motors
In order to fully understand the significant shift in the
law governing SIP enforcement, it is helprul to examine the
Supreme Court’s opinion in in light of the new 12 month review
period for proposed SIP revisions.
A. No Statutory Deadline
In gf, the Supreme Court ruled that EPA review of proposed
6 See Duguesne Light v. EPA , 698 F.2d 456 (D.C. Cir.
1983); Council of Commuter Organizations v. Thomas , 799 F.2d 879
(2d Cir. 1986); American Cyanamid v. EPA , 810 F.2d 493 (5th Cir.
1987); United States v. General Motors , 876 F.2d 1060 (1st Cir.
1989); United States v. Alcan Foil , 889 F.2d 1513 (6th Cir.
1989)
In United States v. General Motors Corp. , 876 F.2d 1060
(1st Cir. 1989), the First Circuit construed §110(a) (3) to
implicitly contain the same four month deadline set forth in
§110(a) (2) governing EPA review of original SIPS. Apparently
concerned that EPA’S institutional interest in enforcing existing

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8
SIP revisions was not limited to a four month period. GM’s
principal argument was that since §110(a) (3) pertaining to SIP
revision review requires EPA to approve such revisions if they
meet the requirements of S110(a) (2), the four month deadline -
contained in §110(a) (2) also applies to proposed SIP revision
review. In disposing of GM’s argument, the Court concluded that
§110(a)(3)’s reference to the “requirements of §110(a) (2)” was
only directed to the substantive aspects of the proposed SIP
revision, not the procedural. A contrary conclusion, stated the
Court, would obviate the need for the additional procedural
requirements of §110(a)(3). Since §110(a) (3), like §110(a) (2),
mandated that proposed SIP revisions required reasonable notice
and public hearings at the state level, to incorporate the
procedures of (a) (2) into (a) (3) would be duplicative and result
in a discordant reading of the statute.
Moreover, the Court marshalled further support for this
conclusion by pointing to numerous other provisions in the
statute which expressly imposed the same type of deadlines GM
argued existed implicitly in §110(a)(3). Applying the rule of
statutory construction which posits that the “expression of one
is the exclusion of all others” the Court decided that, had
Congress intended a four month deadline for review of proposed
SIP revisions to apply, it would have said so.
GM’s final argument was grounded on the language of §110(g),
which gives the Governor of any state the authority to suspend
any part of an existing SIP that would result in severe economic
disruption if EPA has failed to act on a proposed SIP revision
(which would alleviate the economic disruption) “within the
required four month period”. In summarily disposing of this
contention, the Court concluded that reference to any required
four month period in §110(g) did not by itself impose on EPA a
general requirement to process all proposed revisions within four
months. Rather, it merely authorized the Governor in such
instances to suspend that portion of the existing SIP. “Whatever
may be the correct interpretation of §1lO(g)...we do not think
this passing mention can be inflated into a requirement that the
[ EPA] process each and every proposed revision within four
months.” 110 S. Ct. at 2538.
B. No Enforcement Bar
After deciding that no statutory deadline governed EPA
review of proposed SIP revisions, the Court next held that rather
than an enforcement bar, the appropriate remedy for unreasonable
SIPs conflicted with its responsibility to approve SIP revisions,
the court stated: “we think it dangerous to defer in a situation
such as this where the Agency has a substantial institutional
interest in not imposing constraints on itself.” I at 1066.

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9
Agency delay in processing proposed SIP revisions was either a
citizen suit pursuant to §304, compelling agency action, or a
reduction in penalties by the district court in those cases where
the source is prejudiced by the unreasonable delay. 8 The Court
grounded its ruling on the absence of any reference to an
enforcement bar in the statute, as well as §113(b)(2)’s express
authorization of actions for penalties or injunctive relief
whenever a source is in violation of the applicable SIP.
CONCLUSION
With the recent amendments to the Act, Congress expressly
determined that 12 months is a reasonable period to review
proposed SIP revisions. Therefore, the amendments have probably
created a statutory presumption that failure to review a proposed
SIP revision within the allotted 12 months is unreasonable. The
Q ruling makes clear, however, that notwithstanding this new 12
month statutory period, enforcement of existing SIPs is
authorized even when the Agency has exceeded its statutory review
deadline. In determining whether to bring SIP enforcement -
actions involving proposed SIP revisions which have been reviewed
beyond 12 months, Regions should consider the factors enumerated
in this document on a case-by-case basis.
Our staff will be available to discuss specific cases with
you. Please contact Peter Fontaine of the Air Enforcement
Division if you have any questions regarding this policy.
8 According to the First Circuit, in those cases where
the Agency’s unreasonable delay has resulted in prejudice to the
defendant, the District Court is endowed with the authority to
reduce penalties. “If, for example, .a trial court finds that the
review process should have taken ten months rather than two
years, it may decline to award penalties for the fourteen months
of unwarranted delay.” , 876 F.2d at 1068.

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10
Addressees
Regional Counsels
Regions I-X
Regional Counsel Air Contacts
Regions I—X
Air and Waste Management Division Director
Region II
Air Management Division Directors
Regions 1,111, and IX
Air and Radiation Division Director
Region V
Air, Pesticides, and Toxics Management Division Directors
Regions IV and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
Air Compliance Branch Chiefs
Regions I—X
Alan Eckert
Office of General Counsel
Robert Van Heuvelen, Acting Chief
Environmental Enforcement Section
U.S. Department of Justice
cc: James M. Strock
Assistant Administrator for Enforcement
William G. Rosenberg
Assistant Administrator for Air and Radiation

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SECTION C DOCUMENT 10
Clarification of Policy on Enforcement of Visible
Emission Violations for SIP Sources Meeting Applicable
Mass Emission Standards
06/24/91

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Attachment 1
MEMORANDUM
,
SUBJECT: Approaches to Creating
Emissions Limits
FROM: / John S. Seitz, Dire
9 t_fice of Air Quality
Director, Air, Pesticides and Toxics
Management Division, Regions I and IV
Director, Air and Waste Management Division,
Region II
Director, Air, Radiation and Toxics Division,
Region III
Director, Air and Radiation Division,
Region V
Director, Air, Pesticides and Toxics Division,
Region VI
Director, Air and Toxics Division,
Regions VII, VIII, IX, and X
(MD—1O)
The new operating permits program under title V of the Clean
Air Act (Act), combined with the additional and lower thresholds
for “major” sources also provided by the 1990 Amendments to the
Act, has led to greatly increased interest by State and local air
pollution control agencies, as veil as sources, in obtaining
federally—enforceable limits on source potential to emit air
pollutants. Such limits entitle sources to be considered “minor”
for the purposes of title V permitting and various other
requirements of the Act. Numerous parties have identified this
as a high priority concern potentially involving thousands of
sources in each of the larger States.
The issue of creating federally-enforceable emissions limits
has broad implications throughout air programs. Although many of
the issues mentioned above have arisen in the context of the
title V permits program, the same issues exist for other
programs, including those under section 112 of the Act. As
discussed below, traditional approaches to creating federally—
enforceable emissions limits may be unnecessarily burdensome and
time—consuming for certain types and sizes of sources. In
addition, they have been of limited usefulness with respect to
creating such limits for emissions of hazardous air pollutants
(HAP’s).
The purpose of this memorandum is to respond to these needs
by announcing the availability of two further approaches to
creating federally-enforceable emissions limits: the . tenSiOn
of existing criteria pollutant program mechanisms for HAP program
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
TO:

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2
purposes, and the creation of certain classes of standardized
emissions limits by rule. We believe that these options are
responsive to emerging air program implementation issues and
•provide a reasonable balance between the need for administrative
streamlining and the need for emissions limits that are
technically sound and enforceable. -
Backaround
Various regulatory options already exist for the creation of
federally-enforceable limits on potential to emit. These were
summarized in a September 18, 1992 memorandum from John Calcagni,
Director, Air Quality Management Division. That memorandum
identified the five regulatory mechanisms generally seen as
available. These are: State major and minor new source review
(NSR) permits (if the NSR program has been approved into the
State implementation plan (SIP) and meets certain procedural
requirements); operating permits based on programs approved into
the SIP pursuant to the criteria in the June 28, 1989 £ gr J.
gister (54 FR 27274); and title V permits (including general
permits). Also available are SIP limits for individual sources
and limits f or HAP’s created through a State program approved
pursuant to section 112(1) of the Act.
Regional- Office and State air program officials realize that
these five options are generally workable, but feel that the
programs emerging from the 1990 Amendments present certain
further needs that are not veil met. They note that NSR is not
always available, title V permitting can be more rigorous than
appropriate for those sources that are in fact quite small, and
that general permits have limitations in their usefulness. The
use of State operating permits approved into the SIP pursuant to
the June 28, 1989 Federal Register is generally considered to be
a promising option for some of these transactions; however, these
programs do not regulate toxics directly.
State ODeratina Permits for poth Criteria Pollutants
and RAP’S
As indicated above, State operating permits issued by
programs approved into the SIP pursuant to the process provided
in the June 28, 1989 Federal Reaister are recognized as federally
enforceable. This is a useful option, but has historically been
viewed as limited in its ability to directly create emissions
limits for HAP’S because of the SIP focus on criteria pollutants.
Since that option was created, however, section 112 of the
Act has been rewritten, creating significant new regulatory
requirements and conferring additional responsibilities and
authorities upon the Environmental Protection Agency (EPA) and
the States. Section 112 now mandates a wide range of activities:

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3-
source—specific preconstruction reviews, areawide approaches to
controlling risk, provisions for permitting pursuant to the
title V permitting program, and State program provisions in
section 112(1) that are similar to aspects of the SIP program. A
result of these changes is that implementation of toxics programs
will entail the use of many of the same administrative mechanisms
as have been in use for the criteria pollutant programs.
Upon further analysis of these new program mandates and
corresponding authorities, EPA concludes that section 112 of the
Act, including section 112(1), authorizes it to recognize these
same State operating permits programs for the creation of
federally-enforceable emissions limits in BuppOrt of the
implementation of section 112. Congress recognized, and
longstanding State practice confirms, that operating permits
are core-implementing mechanisms for air quality program
requirements. This was EPA’s basis for concluding that
section 110 of the Act authorizes the recognition and approval
into the SIP of operating permits pursuant to the June 28, 1989
promulgation, even though section 110 did not expressly provide
for such a program. Similarly, broad provision of section 112(1)
for “a program for the implementation and enforcement . . . of -
emission standards and other requirements for air pollutants
subject to this section” provides a sound basis for EPA
recognition of State operating permits for implementation and
enforcement of section 112 requirements in the same manner
as these permitting processes were recognized pursuant to
section 110.
In implementing this authority to approve State operating
permits programs pursuant to section 112, it should be noted that
the specific criteria for what constitutes a federally—
enforceable permit are also the same as for the existing SIP
programs. The June 28, 1989 Federal Reaister essentially
addressed in a generic sense the core criteria for creating
federally—enforceable emissions limits in operating permits:
appropriate procedural mechanisms, including public notice and
opportunity for comment, statutory authority for EPA approval of
the State program, and enforceability as a practical matter. The
EPA did this in the context of SIP development, not because these
criteria are specific to the SIP, but because section 110 of the
Act was seen as our only certain statutory basis for this prior
to the 1990 Amendments. Based on the discussion above, States
can extend or develop State operating permits programs for toxics
pursuant to the criteria set forth in the June 28, 1989 Federal
Register . The EPA is also evaluating analogous opportunities to
enhance State NSR programs to address toxics and will address
this in future guidance.
This is a significant opportunity to limit directly the
emissions of HAp’s. It also offers the advantage of t. .
administrative efficiencies that arise from using existing

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4
administrative mechanisms, as opposed to creating additional
ones.
States are encouraged to consult with EPA Regional Offices
to discuss the details of adapting their current programs to
carry out these additional functions. The EPA will consider
State permitting programs meeting the criteria in the June 28,
1989 Federal Register as being appróvable for MAP program
functions as well • States may’ submit their programs for
implementing this process with their part 70 program submittals,
or at such other time as they choose. The EPA has various
options for administratively recognizing these State program
submittals. The EPA plans initially to review these State
programs as SIP review actions, but with official recognition
pursuant to authorities in both sections 110 and 112. Once
rulemaking pursuant to section 112(1) of the Act is completed,
EPA expects to use the process developed in that rule for
approving State programs for HAP’s. The section 112(1) process
may be especially useful prior to EPA approval and implementation
of the State title V programs. The reader may wish to refer to
the process f or certain section 112(1) approvals proposed on May
19, 1993 (58 FR 29296) (see section 63.91).
The General Provisions (40 CFR part 63) establish the
applicability framework for the implementation of section 112.
In the final rule, EPA will indicate that State operating permits
programs which meet the procedural requirements of the June 28,,
1989 Federal Register can be used to develop federally—
enforceable emissions limits for HAP’s, thereby limiting a
source’s potential to emit. In addition, after we gain
implementation experience, EPA will be evaluating the usefulness
of further rulemaking to define more specific criteria by which
this process may be used in the implementation of programs under
section 112 of the Act. Any such rulemaking could similarly be
incorporated into the General Provisions in part 63.
$tate-Standardi zed Processes Created by Rule to Estab1is
5ource—Specific Federally—Enforceable Emissions Limits
State air program officials have highlighted specific types
of sources that are of particular administrative concern because
of their nature and number. These include sources whose
emissions are primarily volatile organic compounds (VOC) arising
from use of solvents or coatings, such as automobile body shops.
Another example is fuel-burning sources that have low actual
emissions because of limited hours of operation, but with the
potential to emit sulfur dioxide in amounts sufficient to cause
them to be classified as major sources.
The EPA recognizes that emissions limitations for some
processes can be created through standardized protoco .. For
example, limitations on potential to emit could be established

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5
for certain voc sources on the basis of limits on solvent use,
backed up by recordkeeping and by periodic reporting. Similarly,
limitations on sulfur dioxide emissions could be based on
specified sulfur content of fuel and the source’s obligation to
limit usage to certain maximum amounts. Limits on hours of
operation may be acceptable for certain others sources, such as
standby boilers. In all cases, of course, the technical
requirements would need to be supported by sufficient compliance
procedures, especially monitoring and reporting, to be considered
enforceable.
The EPA concludes that such protocols could be relied on to
create federally-enforceable limitations on potential to emit if
adopted through rulemaking and approved by EPA. Although such an
approach is appropriate I or only a limited number of source
categories, these categories include large numbers of sources,
such as dry cleaners, auto body shops, gas stations, printers,
and surface coaters. If such standardized control protocols are
sufficiently reliable and replicable, EPA and the public need not
be involved in their application to individual sources, as long
as the protocols themselves have been subject to notice and
opportunity to comment and have been approved by EPA into the
SIP. -
To further illustrate this concept and to provide
implementation support to the States, EPA has recently released
guidance on one important way of using this process. This
document, entitled “Guidance for State Rules for Optional
Federally-Enforceable Emissions Limits Based on Volatile Organic
Compound Use,” was issued by D. Kent Berry, Acting Director, Air
Quality Management Division, on October 15, 1993. It describes
approvable processes by which States can create federally—
enforceable emissions limits for VOC for large numbers of sources
in a variety of source categories.
States have flexibility in their choice of administrative
process for implementation. In some cases, it may be adequate
for a State to apply these limits to individual sources through a
registration process rather than a permit. A source could simply
submit a certification to the State committing to comply with the
terms of an approved protocol. Violations of these
certifications would constitute SIP violations, in the case of
protocols approved into the SIP, and be subject to the same
enforcement mechanisms as apply in the case of any other SIP
violation. Such violations would, of course, also subject the
source to enforcement for failure to comply with the requirements
that apply to major sources, such as the requirement to obtain a
title V permit or comply with various requirements of section 112
of the Act.
Some States have also indicated an interest in m,..
expansive approaches to implementing this concept, such as making

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6
presumptive determinations of control equipment efficiency with
respect to particular types of sources and pollutants. While
such approaches are more complicated and present greater numbers
of concerns in the EPA review process, they offer real potential
if properly crafted. The EPA will evaluate State proposals and
approve them if they are technically sound and enforceable as a
practical matter.
States may elect to use this approach to create federally—.
enforceable emissions limits for sources of HAP’s as well. Based
on the same authorities in section 112 of the Act, as cited above
in the case of operating permits, EPA can officially recognize
such State program submittals. As with the operating permits
option discussed in the preceding section, EPA plans initially to
review these activities as SIP revisions, but with approval
pursuant to both sections 110 and 112 of the Act, and approve
them through the section 112(1) process when that rule is final.
Implementation Guidance
As indicated above, the creation of federally—enforceable
limits on a source’s potential to emit involves the
identification of the procedural mechanisms for these efforts,
including the statutory basis for their approval by EPA, and the
technical criteria necessary for their implementation. Today’s
guidance primarily addresses the procedural mechanisms available
and the statutory basis f or EPA approval.
The EPA will be providing further information with respect
to the implementation of these concepts. As described above, the
first portion of this guidance, addressing limits on VOC
emissions, was issued on October 15, 1993. My office is
currently working with Regional Offices and certain States in
order to assist in the development of program options under
consideration by those States. We will provide technical and
regulatory support to other State programs and will make, the
results of these efforts publicly available through the Office of
Air Quality Planning and Standards (OAQPS) Technology Transfer
Network bulletin board.
We will provide further support through the release of a
document entitled “Enforceability Requirements for Limiting
Potential to it Through SIP Rules and General Permits,” which
is currently undergoing final review within EPA. In addition,
EPA will be highlighting options for use of. existing technical
guidance with respect to creating sound and enforceable emissions
limits. An important example of such guidance is the EPA “Blue
Book,” vhich has been in use by States for the past 5 years as
part of their VOC control programs.

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Attachment 2
California empls Rule
Backaround
State agencies and local agencies (such as- the Air Pollution
Control Districts in California) can adopt rules which place
emissions limitations on a category of sources through a
combination of limitations and compliance requirements. These
rules, if practicably enforceable, adopted with adequate public
process and approved into the SIP, can validly limit potential to
emit. Moreover, because State or local rules can cover many
sources with a singl. regulatory action, they are well-suited to
cover large populations of smaller sources. Many States are
finding that a combination of SIP rule . or general permits for
smaller sources combined with individual permits for larger
sources provides the simplest means of ensuring that minor source
emissions are adequately limited.
Discussion of California Rule
The EPA, the California Air Pollution Control Officer.
Association and the California Air Resources Board recently
completed development of a nodal rule for us. by the California
Air Pollution Control Districts. Becaus, th rule contains
several innovations, including covering all source categories,
and should prove to be an inexpensiv, and efficient means of
limiting the potential emissions of thousand, of sources in
California, the EPA believes that parts of the rule nay be
helpful for other States to review and consider.
The proposed rul. is designed to place smaller sources under
annual emissions limits which restrict their “potential to emit”
and thus their exposure to “major source” requirements of the
Clean Air Act. Th. rule ensures compliance with the annual li.it
through a series of r.cordk.eping and reporting requirements.
These requirements are tap.red to reduce burden. as source size
decreases. Th. rule creates three level, of responsibility. The
first tier requires both r.cordkeeping and reporting. The second
tier requires only r.cordkeaping with no reporting. For
instance, sources that emit only attainment pollutants which
limit their emissions to below 25 tons per year hav, no reporting
r.quirew t. For sources under 5 tons p.r year (or 2 tons per
year for a single hazardous air pollutant), there is no specified
recordkeeping or reporting requirement, although these sources
must st ill maintain sufficient records tO demonstrate their
compliance with th. rule.
To the extent possible, the r.cordkeeping requirements are
itemized by source category and are designed to take advantage of

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records that sources are already likely to maintain. Th±ough
these measures, the rule should assure the public that the
sources subject to the rule are properly maintaining their
emissions below major source levels, while maximizing source -
flexibility and minimizing paperwork.
There are other safeguards built into the rule and in
California’s overall regulatory scheme which add to the EPA’s
confidence that the proposal can work. The rule applies only to
sources that agree to limit their emissions to 50 percent or less
of the major source threshold. Sources with emissions above this
level must either comply with all applicable ‘major source’
requirements or secure a source—specific, federally—enforceable
Air Poliution Control District permit that properly limits
emissions to levels below major source thresholds. Some sources
may be able to qualify for an “alternative operation limit” which
places simple operating limits on a source’s combustion of fuel,
sale of gasoline or use of a solvent. Because of the ease with
which compliance can be tracked with operational limits, the rule
allows sources using these limits to go up to 80 percent of the
major source threshold. Either way, EPA believes that the rule
creates a sufficient compliance buffer.
Moreover, California has an extensive permit and inspection
infrastructur, that increases EPA’ . confidence that the rule will
prov, adequate for limiting emissions. California law requires
that, upon annual renewal, each permit be reviewed to determine
that the permit conditions are adequate to assur. compliance with
district rules and other applicable requirements. In addition,
most California Air Pollution Control Districts have an extensive
inspection program which means that compliance with the rule will
be spot checked by inspectors visiting the source
Finally, the rule is designed to provide smaller sources
with a federally-enforceable means of limiting their potential
emissions. The rule excludes sources that already have a
federally enforceable operating permit, and it cannot be used to
avoid complying with an permit required by the Air Pollution
Control Districts.
Mide from these general observations, EPA did have a number
of comments regarding specific language included in the rule.
The three most significant comments are set forth below.
However, States interested in using this rule as a model should
be aware that it was specifically designed to fit with California
State law and existing SIP provisions and that States may wish to
consider making other changes to reflect their individual needs
and requirements.

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Section 2.7: In a PM-b nonattaininent area, PM—b
precursors may need to be included when determining whether
a source is major as required by section 189(e) of the Clean
Air Act. Districts adopting this model rule should consider
whether the definition of “Major Source” in section 2.7—
should be augmented to include sources of P11-10 precursors.
Section 4.2(D): The rule allows sources using air
pollution control equipment to demonstrate compliance
through the maintenance of general records on the unit and
its operations. EPA has always been concerned with this
provision since many pollution control unit . are only
effective if specific operating procedures are followed.
These specifics are best set and tracked in a source-
specific, federally enforceable permit. Før this reason,
section 1.3 sunsets the applicability of the draft rule,
after January 1, 1999, to pollution control equipment. For
the coverage to continue beyond that date, a district must
extend the provision. The EPA will disapprove the extension
if the experience with the rule demonstrates that more
specific conditions are needed to ensure that pollution
control devices are being used properly and continuously.
Section 4.2(E): In general, EPA does not favor the use of
generic or catch-all recordkeeping requirements for
compliance purposes • There is a fear that the records
necessary to show compliance for individual source
categories will not be specified by th . generic provision
and thus will not be maintained. For this reason, EPA urges
the Board and the Districts to evaluate regularly whether
specific recordkeeping requirements should be developed for
additional categories. As we noted during our negotiations,
EPA will evaluate thi, question after the rule is in effect
for three year. and the EPA may seek -- through a SIP call
or through other me h nisas -- to require additional
recordkeeping requiremrn ts if there are implementation
problems with this generic category. The districts may wish
to add to the rule a provision which would authorize them to
add recordkeepinq requirements for additional source
categories without a further SIP revision.

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Attachtnerit 2
State of California I
Proposed Rule to Limit
Potential to Emit
January 11, 1995
1.0 APPLICABILITY
1. 1 General Applicability: This rule shall apply to any stationary source which would, if it did
not comply with the limitations set forth in this rule, have the potential to emit air
contaminants equal to or in excess of the threshold for a major source of regulated air
pollutants or a major source of hazardous air pollutants (HAPs) and which meets one of the
following conditions:
A. In every 12-month period, the actual emissions of the stationary source are less than
or equal to the emission limitations specified in section 3. 1 below; or
B In every 12-month penod, at least 90 percent of the emissions from the stationary
source are associated with an operation limited by any one of the alternative
operational limits specified in section 6. 1 below.
1.2 Stationary Source with De Minimis Emissions: The recordkeeping and reporting provisions
in sections 4.0, 5.0 and 6.0 below shall not apply to a stationary source with de minimis
emissions or operations as specified in either subsection A or B below:
A. In every 12-month period, the stationary source emits less than or equal to the
following quantities of emissions:
1. 5 tons per year of a regulated air pollutant (excluding HAPs),
2. 2 tons per year of a single HAP,
3. 5 tons per year of any combination of HAPs, and
4. 20 percent of any lesser threshold for a single HAP that the United States
Environmental Protection Agency (U.S. EPA) may establish by rule.
B. In every 12-month period, at least 90 percent of the stationary source’s emissions are
associated with an operation for which the throughput is less than or equal to one of
the quantities specified in subsections 1 through 9 below:
1. 1 ,400 gallons of any combination of solvent-containing materials but no more
than 550 gallons of any one solvent-containing material, provided that the
materials do not contain the following: methyl chloroform (1,1,1-
trichloroethane), methylene chloride (dichloromethane), tetrachloroethylene
(perchioroethylene), or trichioroethylene;
2. 750 gallons of any combination of solvent-containing materials where the
1

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matenals contain the following: methyl chloroform (l,1,l-trichloroethane),
methyiene chloride (dichioromethane), tetrachloroethylene (perchioroethylene),
or trichioroethylene, but not more than 300 gallons of any one solvent-
containing material;
3. ____ gallons of solvent-containing (or volatile organic compound containing)
matenal used at a paint spray unit(s);’ -
4. 4,400,000 gallons of gasoline dispensed from equipment with Phase I arid II
vapor recovery systems;
5. 470,000 gallons of gasoline dispensed from equipment without Phase I and II
vapor recovery systems;
6. 1,400 gallons of gasoline combusted;
7. 16,600 gallons of diesel fuel combusted;
8. 500,000 gallons of distillate oil combusted, or
9. 71,400,000 cubic feet of natural gas combusted.
Within 30 days of a written request by the District or the U.S. EPA, the owner or operator
of a stationary source not maintaining records pursuant to sections 4.0 or 6.0 shall
demonstrate that the stationary source’s emissions or throughput are not in excess of the
applicable quantities set forth in subsection A or B above.
1.3 Provision for Air Pollution Control Equipment: The owner or operator of a stationary
source may take into account the operation of air pollution control equipment on the capacity
of the source to emit an air contaminant if the equipment is required by Federal, State, or
District rules and regulations or permit terms and conditions. The owner or operator of the
stationary source shall maintain and operate such air pollution control equipment in a manner
consistent with good air pollution control practice for minimizing emissions. This provision
shall not apply after January 1, 1999 unless such operational limitation is federally
enforceable or unless the District Board specifically extends this provision and it is submitted
to the U.S. EPA. Such extension shall be valid unless, and until, the U.S. EPA disapproves
the extension of this provision.
1.4 Exemption, Stationary Source Subject to Rule ____ (District Title V rule): This rule shall not
apply to the following stationary sources:
A. Any stationary source whose actual emissions, throughput, or operation, at any time
after the effective of this rule, is greater than the quantities specified in sections 3.1
or 6.1 below and which meets both of the following conditions:
‘To be determined based on district SIP rules
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1. The owner or operator has notified the District at least 30 days pnor to any
exceedarice that s/he will submit an application for a Part 70 permit, or
otherwise obtain federally-enforceable permit limits, and
2. A complete Part 70 permit application is received by the District, or the
permit action to otherwise obtain federally-enforceable limits is completed,
within 12 months of the date of notification.
However, the stationary source may be immediately subject to applicable federal
requirements, including but not limited to, a maximum achievable control technology
(MACI) standard.
B. Any stationary source that has applied for a Part 70 permit in a timely manner and in
conformance with Rule ____ (the District’s Title V rule), and is awaiting final action
by the Distnct and U.S. EPA.
C. Any stationary source required to obtain an operating permit under Rule ____ (the
District’s Title V rule) for any reason other than being a major source.
D. Any stationary source with a valid Part 70 permit.
Notwithstanding subsections B and D above, nothing in this section shall prevent any
stationary source which has had a Part 70 permit from qualifying to comply with this rule in
the future in lieu of maintaining an application for a Part 70 permit or upon rescission of a
Part 70 permit if the owner or operator demonstrates that the stationary source is in
compliance with the emissions limitations in section 3. 1 below or an applicable alternative
operational limit in section 6. 1 below.
1.5 Exemption, Stationary Source with a Limitation on Potential to Emit: this rule shall not apply
to any stationary source which has a valid operating permit with federally-enforceable
conditions or other federally-enforceable limits limiting its potential to emit to below the
applicable threshold(s) for a major source as defined in sections 2.7 and 2.8 below.
1.6 Within three years of the effective date of Rule ____ (District Title V rule), the District shall
maintain and make available to the public upon request, for each stationary source subject to
this rule, information identifying the provisions of this rule applicable to the source.
1.7 This rule shall not relieve any stationary source from complying with requirements pertaining
to any otherwise applicable preconstruction permit, or to replace a condition or term of any
preconstruction permit, or any provision of a preconstruction permitting program. 2 This
does not preclude issuance of any preconstruction permit with conditions or terms necessary
to ensure compliance with this rule.
2 For example, PSD, NSR, and ATC
3

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2.0 DEFINITIONS
All terms shall retain the definitions provided under 40 CFR Part 70.2 [ alternatively, the
District Title V rule] unless otherwise defined herein.
2.1 12-month period: A period of twelve consecutive months determined on a rolling basis with
a new 12-month period beginning on the first day of each calendar month.
2.2 Actual Emissions: The emissions of a regulated air pollutant from a stationary source for
every 12-month period. Valid continuous emission monitoring data or source test data shall
be preferentially used to determine actual emissions. In the absence of valid continuous
emissions monitoring data or source test data, the basis for determining actual emissions shall
be: throughputs of process materials; throughputs of materials stored; usage of materials;
data provided in manufacturer’s product specifications, material volatile organic compound
(VOC) content reports or laboratory analyses; other information required by thiS rule and
applicable District, State and Federal regulations; or information requested in writing by the
Distnct. All calculations of actual emissions shall use U.S. EPA, California Air Resources
Board (CARB) or District approved methods, including emission factors and assumptions.
2.3 Alternative Operational Limit: A limit on a measurable parameter, such as hours of
operation, throughput of matenals, use of materials, or quantity of product, as specified in
Section 6.0, Alternative Operational Limit and Requirements.
2.4 Emission Unit: Any article, machine, equipment, operation, contrivance or related
groupings of such that may produce and/or emit any regulated air pollutant or hazardous a r
pollutant.
2.5 Federal Clean Air Act: The federal Clean Air Act (CAA) as amended in 1990 (42 U.S.C.
section 7401 et seq.) and its implementing regulations.
2.6 Hazardous Air Pollutant: Any air pollutant listed pursuant to section 112(b) of the federal
Clean Air Act.
2.7 Major Source of Regulated Air Pollutants (excluding HAPs): A stationary source that emits
or has the potential to emit a regulated air pollutant (excluding HAPs) in quantities equal to
or exceeding the lesser of any of the following thresholds:
A. 100 tons per year (tpy) of any regulated air pollutant;
B. 50 tpy of volatile organic compounds or oxides of nitrogen for a federal ozone
nonattainment area classified as serious, 25 tpy for an area classified as severe, or 10
tpy for an area classified as extreme; and
C. 70 tpy of PM 10 for a federal PM 10 nonattainment area classified as serious.
Fugitive emissions of these pollutants shall be considered in calculating total emissions for
stationary sources in accordance with 40 CFR Part 70.2 “Definitions- Major source(2).”
4

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2.8 Major Source of Hazardous Air Pollutants: A stationary source that emits or has the
potential to emit 10 tons per year or more of a single HAP listed in section 1 12(b) of the
CAA, 25 tons per year or more of any combination of HAPs, or such lesser quantity as the
U.S. EPA may establish by rule. Fugitive emissions of HAPs shall be considered in
calculating emissions for all stationary sources. The definition of a major source of
radionuclides shall be specified by rule by the U.S. EPA
2.9 Part 70 Permit: An operating permit issued to a stationary source pursuant to an inferim,
partial or final Title V program approved by the U.S. EPA.
2. 10 Potential to Emit: The maximum capacity of a stationary source to emit a regulated air
pollutant based on its physical and operational design. Any physical or operational limitation
on the capacity of the stationary source to emit a pollutant, including air pollution control
equipment and restrictions on hours of operation or on the type or amount of material
combusted, stored, or processed, shall be treated as part of its design only if the limitation is
federally enforceable.
2.11 Process Statement: An annual report on permitted emission units from an owner or operator
of a stationary source certifying under penalty of perjury the following: throughputs of
process materials; throughputs of materials stored; usage of materials; fuel usage; any
available continuous emissions monitoring data; hours of operation; and an other
information required by this rule or requested in writing by the District.
2.12 Regulated Air Pollutant: The following air pollutants are regulated:
A. Oxides of nitrogen and volatile organic compounds;
B. Any pollutant for which a national ambient air quality standard has been promulgated;
C. Any Class I or Class II ozone depleting substance subject to a standard promulgated
under Title VI of the federal Clean Air Act;
D. Any pollutant that is subject to any standard promulgated under section 111 of the
federal Clean Air Act; and
E. Any pollutant subject to a standard or requirement promulgated pursuant to section
112 of the federal Clean Air Act, including:
1. Any pollutant listed pursuant to section 112(r) (Prevention of Accidental
Releases) shall be considered a regulated air pollutant upon promulgation of
the list.
2. Any HAP subject to a standard or other requirement promulgated by the U.S.
EPA pursuant to section 112(d) or adopted by the District pursuant to 112(g)
and (j) shall be considered a regulated air pollutant for all sources or
categories of sources: 1) upon promulgation of the standard or requirement,
or2) 18 months after the standard or requirement was scheduled to be
promulgated pursuant to section 1 12(e)(3).
5

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3. Any HAP subject to a District case-by-case emissions limitation determination
for a new or modified source, prior to the U.S. EPA promulgation or
scheduled promulgation of an emissions limitation shall be considered a
regulated air pollutant when the determination is made pursuant to section
1 12(g)(2). In case-by-case emissions limitation determinations, the HAP shall
be considered a regulated air pollutant only for the individual source for which
the emissions limitation determination was made. -
3.0 EMISSION LIMITATIONS
3. 1 Unless the owner or operator has chosen to operate the stationary source under an alternative
operational limit specified in section 6.1 below, no stationary source subject to this rule
shall emit in every 12-month period more than the following quantities of emissions:
A. 50 percent of the major source thresholds for regulated air pollutants (excluding
HAPs),
B. 5 tons per year of a single HAP,
C. 12.5 tons per year of any combination of HAPs, arid
D. 50 percent of any lesser threshold for a single HAP as the U.S. EPA may establish
by rule.
3.2 The APCO shall evaluate a stationary source’s compliance with the emission limitations in
section 3. 1 above as part of the District’s annual permit renewal process required by Health
& Safety Code section 42301(e). In performing the evaluation, the APCO shall consider any
annual process statement submitted pursuant to Section 5.0, Reporting Requirements. In the
absence of valid continuous emission monitoring data or source test data, actual emissions
shall be calculated using emissions factors approved by the U.S. EPA , CARB, or the
APCO.
3.3 Unless the owner or operator has chosen to operate the stationary source under an alternative
operational limit specified in section 6.1 below, the owner or operator’of a stationary source
subject to this rule shall obtain any necessary permits prior to commencing any physical or
operational change or activity which will result in actual emissions that exceed the limits
specified in section 3.1 above.
4.0 RECORDKEEPING REQUIREMENTS
Immediately after adoption of this rule, the owner or operator of a stationary source subject
to this rule shall comply with any applicable recordkeeping requirements in this section.
However, for a stationary source operating under an alternative operational limit, the owner
or operator shall instead comply with the applicable recordkeeping and reporting
requirements specified in Section 6.0, Alternative Operational Limit and Requirements. The
recordkeeping requirements of this rule shall not replace any recordkeeping requirement
6

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contained in an operating permit or in a District, State, or Federal rule or regulation.
4. 1. A stationary source previously covered by the provisions in section 1.2 above shall comply
with the applicable provisions of section 4.0 above and sections 5.0 and 6.0 below if the
stationary source exceeds the quantities specified in section 1.2.A above.
4.2 The owner or operator of a stationary source subject to this rule shall keep and maintain
records for each permitted emission unit or groups of permitted emission units 3 suffi6ient to
determine actual emissions. Such information shall be summarized in a monthly log,
maintained on site for five years, and be made available to District, CARB, or U.S. EPA
staff upon request.
A. Coating/Solvent Emission Unit
The owner or operator of a stationary source subject to this rule that contains a
coating/solvent emission unit or uses a coating, solvent, ink or adhesive shall keep
and maintain the following records:
1. A current list of all coatings, solvents, inks and adhesives in use. This list
shall include: information on the manufacturer, brand, product name or code,
VOC content in grams per liter or pounds per gallon, HAPS content in grams
per liter or pounds per gallon, or manufacturer’s product specifications,
material VOC content reports or laboratory analyses providing this
information;
2. A description of any equipment used during and after coating/solvent
application, including type, make arid model; maximum design process rate or
throughput; control device(s) type and description (if any); and a descnption of
the coating/solvent application/drying method(s) employed;
3. A monthly log of the consumption of each solvent (including solvents used in
clean-up and surface preparation), coating, ink and adhesive used; and
4. All purchase orders, invoices, and other documents to support information in
the monthly log.
B. Organic Liquid Storage Unit
The owner or operator of a stationary source subject to this rule that contains a
permitted organic liquid storage unit shall keep and maintain the following records:
1. A monthly log identifying the liquid stored and monthly throughput; and
3 1n some cases it may be appropriate to keep records on groups of emission units
which are connected in series. Examples are internal combustion engines in the oil fields
with a common fuel line, or a series of paint spray booths with a common feed.
7

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2. Information on the tank design and specifications including control eqwpment.
C. Combustion Emission Unit
The owner or operator of a stationary source subject to this rule that contains a
combustion emission unit shall keep and maintain the following records:
1. Information on equipment type, make and model, maximum design process
rate or maximum power input/output, minimum operating temperature (for
thermal oxidizers) and capacity, control device(s) type and descnption (if any)
and all source test information; and
2. A monthly log of hours of operation, fuel type, fuel usage, fuel heating value
(for non-fossil fuels; in terms of BTU/lb or BTU/gal), percent sulfur for fuel
oil and coal, and percent nitrogen for coal.
D. Emission Control Unit
The owner or operator of a stationary source subject to this rule that contains an
emission control unit shall keep and maintain the following records:
1. Information on equipment type and description, make and model, and emission
units served by the control unit;
2. Information on equipment design including where applicable: pollutant(s)
controlled; control effectiveness; maximum design or rated capacity; inlet and
outlet temperatures, and concentrations for each pollutant controlled; catalyst
data (type, material, life, volume, space velocity, ammonia injection rate and
temperature); baghouse data (design, cleaning method, fabnc material, flow
rate, air/cloth ratio); electrostatic precipitator data (number of fields, cleaning
method, and power input); scrubber data (type, design, sorbent type, pressure
drop); other design data as appropriate; all source test information; and
3. A monthly log of hours of operation including notation of any control
equipment breakdowns, upsets, repairs, maintenance and any other deviations
from design parameters.
E. General Emission Unit
The owner or operator of a stationary source subject to this rule that contains
an emission unit not included in subsections A, B or C above shall keep and
maintain the following records:
I. Information on the process and equipment including the following:
equipment type, description, make and model; maximum design process
rate or throughput; control device(s) type and descnption (if any);
2. Any additional information requested in writing by the APCO;
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3. A monthly log of operating hours, each raw material used and its
amount, each product produced and its production rate; and
4. Purchase orders, invoices, and other documents to support information
in the monthly log.
,5.O REPORTING REQUIREMENTS
5.1 At the time of annual renewal of a permit to operate under Rule _____ (the District’s
general permitting rule), each owner or operator of a stationary source subject to this rule
shall submit to the District a process statement. The statement shall be signed by the owner
or operator and certify that the information provided is accurate and true.
5.2 For the purpose of determining compliance with this rule, this requirement shall not apply to
stationary sources which emit in every 12-month period less than or equal to the following
quantities:
A. For any regulated air pollutant (excluding HAPs),
1. 25 tons per year including a regulated air pollutant for which the District has a
federal area designation of attainment, unclassified, transitional, or moderate
nonattain ment,
2. 15 tons per year for a regulated air pollutant for which the District has a
federal area designation of serious nonattainment,
3. 6.25 tons per year for a regulated air pollutant for which the District has a
federal area designation of severe nonattainment,
B. 2.5 tons per year of a single HAP,
C. 6.25 tons per year of any combination of HAPs, and
D. 25 percent of any lesser threshold for a single HAP as the U.S. EPA may establish by
rule.
5.3 A stationary source previously covered by provisions in section 5.2 above shall comply with
the provisions of section 5.1 above if the stationary source exceeds the quantities specified in
section 5.2.
5.4 Any additional information requested by the APCO under section 5.1 above shall be
submitted to the APCO within 30 days of the date of request.
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6.0 ALTERNATIVE OPERATIONAL LLMIT AND REQUIREMENTS
[ The District may propose additional alternative operational limits]
The owner or operator may operate the permitted emission units at a stationary source
subject to this rule under any one alternative operational limit, provided that at least 90
percent of the stationary source’s emissions in every 12-month period are associated with the
operation(s) limited by the alternative operational limit. -
6.1 Upon choosing to operate a stationary source subject to this rule under any one alternative
operational limit, the owner or operator shall operate the stationary source in compliance
with the alternative operational limit and comply with the specified recordkeeping and
.reporting requirements.
A. The owner or operator shall report within 24 hours to the APCO any exceedance of
the alternative operational limit.
B. The owner or operator shall maintain all purchase orders, invoices, and other
documents to support information required to be maintained in a monthly log.
Records required under this section shall be maintained on site for five years and be
made available to District or U.S. EPA staff upon request.
C. Gasoline Dispensing Facility Equipment with Phase I and II Vapor Recovery Systems
The owner or operator shall operate the gasoline dispensing equipment in compliance
with the following requirements:
1. No more than 7,000,000 gallons of gasoline shall be dispensed in every 12-
month period.
2. A monthly log of gallons of gasoline dispensed in the preceding month with a
monthly calculation of the total gallons dispensed in the previous 12 months
shall be kept on site.
3. A copy of the monthly log shall be submitted to the APCO at the time of
annual permit renewal. The owner or operator shall certify that the log is
accurate and true.
D. Degreasing or Solvent-Using Unit
The owner or operator shall operate the degreasing or solvent-using unit(s) in
compliance with the following requirements:
1. a. If the solvents do not include methyl chloroform (1,1,1-
trichioroethane), methylene chloride (dichioromethane),
tetrachioroethylene (perchloroethylene), or trichloroethylene, no more
than 5,400 gallons of any combination of solvent-containing materials
and no more than 2,200 gallons of any one solvent-containing material
10

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shall be used in every 12-month period,.
b. If the solvents include methyl chloroform (1,1,l-trichloroethane),
methylene chloride (dichioromethane), tetrachioroethylene
(perchioroethylene), or trichioroethylene, no more than 2,900 gallons of
any combination of solvent-containing materials and no more than
1,200 gallons of any one solvent-containing material shall be used in
every 12-month period. -
2. A monthly log of amount and type of solvent used in the preceding month with
a monthly calculation of the total gallons used in the previous 12 months shall
be kept on site.
3. A copy of the monthly log shall be submitted to the APCO at the time of
annual permit renewal. The owner or operator shall certify that the log is
accurate and true.
E. Paint Spraying Unit 4
The owner or operator shall operate the paint spraying unit(s) in compliance with the
following requirernents
1. The total usage rate of all VOC-containing materials, including but not limited
to, coatings, thinners, reducers, and cleanup solution shall not exceed ______
gallons in every 12-month period.
2. A monthly log of the gallons of VOC-containing matenals used in the
preceding month with a monthly calculation of the total gallons used in the
previous 12 months shall be kept on site.
3. A copy of the monthly log shall be submitted to the APCO at the time of
annual permit renewal. The owner or operator shall certify that the log is
accurate and true.
F. Diesel-Fueled Emergency Standby Engine(s) with Output Less Than 1,000 Brake
Horsepower
[ Depending on the District’s federal ozone attainment status, the District will adopt
either subsection 1.a, 1.b, or 1.c below.]
The owner or operator shall operate the emergency standby engine(s) in compliance
with the following requirements:
1. a. For a federal ozone area designation of attainment, unclassified,
transitional, or moderate nonattainment, the emergency standby
4 To be determined based on District SIP rules
11

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engine(s) shall not operate more than 5,200 hours in every 12-month
period and shall not use more than 265,000 gallons of diesel fuel in
every 12-month period.
b. For a federal ozone nonattainment area classified as serious, the
emergency standby engine(s) shall not operate more than 2,600 hours in
every 12-month period and shall not use more than 133,000 gallons of
diesel fuel in every 12-month period. -
c. For a federal ozone nonattainment area classified as severe, the
emergency standby engine(s) shall not operate more than 1,300 hours in
12-month period and shall not use more than 66,000 gallons of diesel
fuel in every 12-month period.
2. A monthly log of hours of operation, gallons of fuel used, and a monthly
calculation of the total hours operated and gallons of fuel used in the previous
12 months shall be kept on site.
3. A copy of the monthly log shall be submitted to the APCO at the time of
annual permit renewal. The owner or operator shall certify that the log is
accurate and true.
6.2 The owner or operator of a stationary source subject to this rule shall obtain any necessary
permits prior to commencing any physical or operational change or activity which will result
in an exceedance of an applicable operational limit specified in section 6. 1 above.
7.0 VIOLATIONS
7. 1 Failure to comply with any of the applicable provisions of this rule shall constitute a
violation of this rule. Each day during which a violation of this rule occurs is a separate
offense.
7.2 A stationary source subject to this rule shall be subject to applicable federal requirements for
a major source, including Rule ____ (District Title V rule) when the conditions specified in
either subsections A or B below, occur:
A. Commencing on the first day following every 12-month penod in which the stationary
source exceeds a limit specified in section 3. 1 above and any applicable alternative
operational limit specified in section 6.1, above, or
B. Commencing on the first day following every 12-month period in which the owner or
operator can not demonstrate that the stationary source is in compliance with the
limits in section 3.1 above or any applicable alternative operational limit specified in
section 6.1 above.
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Attachinei t 3
r 1 / ft
Si 4 , L_—
j ‘ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
RESEARCH TRIANGLE PARK NC 27711

OFFICE OF
AIR QUALITY PLANNING
AND STANDARDS
NOV 21994
Mr. Jason Gruinet
Executive Director, Northeast States
for Coordinated Air Use Management
129 Portland Street
Boston, Massachusetts 02114
Dear Mr. Grumet:
This is in response to Mr. Michael Bradley’s March 22, 1994
letter to Mary Nichols seeking clarification of the Federal
enforceability of State’s existing minor new source review (NSR)
programs. It is my understanding that some of the NESCAUN States
are interested in using their existing minor NSR programs to
limit a source’s potential to emit so as to allow sources to
legally avoid being considered a major source for title V
purposes.
In my November 3, 1993 memorandum entitled “Approaches to
Creating Federally-Enforceable Emission Limits,” I described
approaches that States could use to limit a source’s potential to
emit for title V purposes. While a number of approaches are
acceptable, the Environmental Protection Agency (EPA) has
promoted the use of State operating permits programs approved
under sections 110 and 112(1), pursuant to the criteria set forth
in the June 28, 1989 Federal Register . Among other things, these
criteria include an opportunity for public and EPA review and
require that permit conditions be practically enforceable.
Several States have followed EPA’s recommendation and have either
adopted these requirements or are in the process of doing So.,
The Agency recognizes the use of other approaches as well.
In response to your question, EPA’S position is that minor NSR
permits issued under programs that have already been approved
into the State implementation plan (SIP) are federally
enforceable. Thus, EPA allows the use of federally-enforceable
minor NSR permits-to limit a source’s potential to emit provided
that the scope of a State’s program allows for this and that the
minor NSR permits are in fact enforceable as a practical matter.
Because minor NSR programs are essentially preconstruction
review programs for new sources and modifications to existing
sources, minor NSR programs can generally be used to limit a

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2
source’s potential emissions when such limits are taken in
conjunction with a preconstruction permit action. In addition,
please note that the term “modification” generally encompasses
both physical changes and changes in the method of operation at
an existing source (see Clean Air Act section lll(a)(4)). Thus,
the scope of some, though not all, minor NSR programs is broad
enough to be used to also limit a source’s potential to emit for
nonconstruction-related events. This occurs where the
modification component of State programs extends to both physical
changes and changes in the method of operation. In these cases,
where a voluntary reduction in the method of operation (e.g.,
limit in hours of operation or production rate) by itself is
considered a modification for minor NSR permitting, a source may
reduce its hours of operation or production rate and make such a
change federally enforceable through limits in its minor NSR
permit.
Some States’ minor NSR programs are written so as to
preclude a source from limiting its potential to emit absent an
increase in emissions. There may be other limitations on the
scope of these programs as well. Since there is considerable
variation among State minor NSR programs, a review of any
individual State program would be necessary to determine its
ability to limit a source’s potential to emit. It may be
beneficial for States to contact the appropriate EPA Regional
Office if there are questions about the scope of the SIP-approved
minor NSR program.
Minor NSR programs have generally been used in the past to
limit a source’s potential to emit for criteria pollutants.
There is a growing need for sources to limit their potential to
emit for toxic pollutants as veil. The EPA is currently
considering ways in which a State may limit the potential to emit
of toxic pollutants, including possible uses of existing minor
NSR programs. I plan to keep you and others aware of our efforts
In this regard.
You should also be aware that a recent court ruling has
called into question the Federal enforceability of a State minor
NSR permit that does not meet the public participation
requirements of current EPA regulations despite SIP approval of
the State’s program [ see United States v. Marine Shale
Processors , No. 90—1240 (E.D. La.) (bench ruling), June 15,
1994]. In that case involving extensive alleged violations of
the permit terms, the court held that EPA could not enforce the
terms of the minor NSR permit. The court subsequently ruled that
the company could not rely on the permit to limit its potential
to emit, and thus was liable for having failed to obtain a major

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Finally, sources remain liable for compliance with major
source requirements if the specific, application of a general
permit to the source does. not limit the source’s potential to
emit below major source or major modification thresholds. (The
limits provided in these mechanisms may a ctually limit the
potential to emit of sources but may not limit the potential to
emit for some sources to below the threshold necessary to avoid
maj or source requirements. For example, a genera I permit for
industrial boilers may in fact provide limits that are sufficient
to bring a source with only two or three boilers to below the
subject thresholds, but a source with more than three boilers may
have a limited PTE but not limited below the major source
threshold.) Also, where the source is required to use another
mechanism to limit potential to emit, i.e., a construction
permit, the general permit may not be relied upon by the source
or the State to limit potential to emit.
Permits issued pursuant to the approved program, meeting the
above requirements, are adequate to provide federally enforceable
limits on potential to emit for New Source Review, title V 1 and
section 112 programs as long as they are approved pursuant to SIP
(section 110) and section 112(1) authorities.
11

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Attach er t 5
Yãdersl R l U O9Z FbIá end R gu adons 59931
imdwtakin without a permit antsd by
olationofany
adItIcc imposed by ich u lt. A y
denial of such a permit any.
conditions Impoeed In s the peált -
ahal lberev lewsblebytbeDos*d ln
arrl.. wis with section 40 of heAd.”
Section 9.1 d.3 thus requires that
State permlf v rnply with the
provisions of the CAA and federal -.
regulations adopted pursuant to the
CAA. To Issues permit with a limit less
stringent than federal requirements er a
State SIP rule is not allowed by the Stats
Act. Permits revlewabla by the IP( In
rdanoa with sectIon 40 osn only
have their limits changed If the WC
finds tbatl PA has made an u. .
Section 40 does not have provisions
•whlch allow altering emission limits
other than to cerrect clerical error by the
I ’A.There1snosuthority1nsection
40 of the State Act to grant a waiver
from a permit limit. Based on these
provisions. US ’Abu determined that
the State authority to Vent permits is
• properly restrained by the terms of the
SE ’, required by the third aiteria.
Fourth Cz lter lc m -
1b limitations, controls, and
requirements In the operating permits
ere permanent, quantifieble end
otherwise en.foroaable us prectlcai
matter. • - -
USEPA has reviewed the flhlnots
operating permit program and Is
utisfled that It requirse the state to
Issue permits which meet the
requirements of this provision. While
the permits do expire the conditions
they Impose must be complied with
during the entire term of the permit as
wellasdurlngthetranslt lonto l -
renewal permit Seàtlon 9.IU) of the -
Stale Act states that, TM lf a complete
application for a permit renewal Is
submitted to the Agency it least 90 di
prior to expiration of the permIt, .11 ci
the terms and conditions of the permli
flremslnineffectuntilflnal.
eItTT tIilJ4?5liVe action has been t e c
the app&atioxi” This ruv1aSon of the
Stats Act jses lan2u e tl fl*r to the
federeI roP t le V operating-.
permit eswhlcharelntendedto -
pr v1de permanency to the limits In U
V permits, which have expiration data
This approach to n b1ng permit limits
permanent Is thus s 1 proveble by
n fU s
cbare teristkz]1y rItthñio that iha?
ere’quantifiable and àf&ceeble’ii i
- practical matter. Llxiilts iizd averi gIn
limes are consistent with tes methods
and procedures. U US ’A in the future
determine, that an lpdlvldual permnl$.
condlticm Is * quantifiable or
practically enforcasbis. It oso deem the l3 A wi erofoze,WA will
permit oat bdershlj anfor bW’ - - auidsr .fl operatln permits Issued
withIn hememscftbeN - ; : wbithwreprcaedlna ” er.
fegulatlons. Tb. State’s current e ctia d tent with both the State
• and regulatory provisions meet the regulations sod the five mitmia to be
fourth fterion for permit program -. derafly sofwcnabl. with the
approvaL . . •• - — promulgation of this rule provided that
— _ _
-...-. any permits that the State wishes to
Fifth Qilerlon - rege federally enfoscoable w -
Ths permits aie Is SUed subject tO hmftted to USDA and .r1,ompenled
public pertidpetlon.” 1 1s means that. by documentation that the procedure,
the Slate a ees. as past of ha program - approved today have been followed.
to provide 1.JSD’A and the pubUc iv th - U EPA will expeditiously review any
timely notica of the prupoesl and Individual permits so submitted to
luuanca of such permits, md to provide ensure their conformity to the program
USEPA ,enstirDeIybuIi.w lth
of each proposed (or dreft3 and
permit Intended to be federally t program for the
enfosoaeble. This procais might also -.• federally enformable
provide for an opportunity for public Is Intended es a
comment on the permit application z 0 iaHng the operating
prior to the Issuanca of the final perralL permits u ,ed to Implement the
On September 25.1985. USDA . -7 im ts of the Act, Inchading
approved Illinois’ rules a0 nlng - !-,- sectIon 110 and pelt D of title I federally
public pertldpatlon in the air permIt .- - enforraable. After the effective date of -
program for major sowoas In .. -‘ this ruJe etlng permits Issued by.,
Dbnattalnment el 5. Thea. ruls -. -‘. linais In u,nformanca with the five
provide fur public nctiftcnlioo prior I D listed above will be considered
permit Iaauanca and an opportunity fot federally enforceable. Additionally,
public n” ent . - - - . - - ocorsting permits Issued subsequent to
The public comment procedure and ottbe Illinois
commitments to follow them In Issuing - operating permit program Into the SIP
Operating permits which were submitted bid before the effe ve dati of this nil.
by IIPA rnnPnvahle as meetina the jfl also be considered federally -
juiw. - . -.- - Emforceeble lfth 5Ststasuhmltsthlmt o
In the preamble to the regulations that U5EPA along with documentation that
USEPA promulgated on June 28. 1989’ . j q q e Igs’jggj In conformance with -
(54 FR 27274). whIch set forth the five L - fly. áftwi lImed .i e.
a’iteria outlined above k a federally - ,1orto the ggo Amendments of the
enforceable operating permit program, ‘ w- o press federal * -
USEPA Indicated that It would ‘ccnsult quIremeot ssw to Include an .. - -
with States on methods by wliith .‘ -
existing operating permits could hi
made federally enforceable under a niineis and
subsequently approved State states vàluntarlly Included
“(54FR27284).Thi permitnro mbthefr 2
rogr .: - - -
means of ____s e. Th .’ pemtJn8
- - :. permit program coven all .nth on
..aourceszegardleesofthesourca’5
UWA as a revision or reissuing_ :pc ntial to emaiL Ia contrast, all states
ext ngp e rthttonasco n*by eon e ‘.rerequh redbyt lt le voftbeAd - - -‘
bas . Id. Thes. two options w.winc*: - - end er ts of 1990 to adopt sod -
Intended to be a complete hetd . .? to U A so operating permIt -.
ihaniatives. Rather they were iu es ea - program by Ndvunber 15.1993, -.
- as two possible ways bj which a d : - regulating the kllow1ng Major sources,
could make pzevloua!jluuod Cperatlnj Ibwons subject toe haurdons afr
- permits federally enforceable. Because ‘ . oll tent st ndud under sectIon 112 of
both options a uld requim the , - --- to new eouz-
spend considerable reeow In -- rf inirice standards und& on
Ivph4 55$fl5 otherwise valid b er 1 lU áf the Act, rces affictod nn
pUSEPAbudVáJuated e.cldi! p stora3óftIthIVOith!..
rejuLticnsto b.’cocSlstent 1thfede to .the privàatlon of stg 1 nt *
- equIrements. If the State followed It tatlorstionIPSI)3 or program. - -
own pr P 4 d tle lof the Act. ii addition, ‘,‘. . -
th slegnt”ti”O w* $ jsct 0 add or exani$ from the --
or tleVpermkUngprograms J other

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l4onitoring ” refers to many different types of data collection,
including continuous emission or opacity monitoring, and
measurements of various parameters of process or control devices
(e.g. temperature, pressure drop, fuel usage) and recordkeeping
of parameters that have been limited, such as hours of operation,
production levels, or raw material usage. Without a verifiable
plantwide emission limit, verifiable emission limits must be
assigned to each unit or group of units subject to the rule or
general permit. Where monitoring cannot be used to determine
emissions directly, limits on appropriate operating parameters
must be established for the units or source, and monitoring must
verify compliance with those limits. - The monitoring must be
sufficient to yield data from the relevant time period that is
representative of the source’s compliance with the standard or
limit. Continuous emissions monitoring, especially in the case
of smaller sources, is not required.
E. Practicably Enforceable Averaging Tjmes
The averaging time for all limits must be practicably
enforceable. In other words, the averaging time period must
readily allow for determination of compliance. EPA policy
expresses a preference toward short term limits, generally daily
but not to exceed one month. However, EPA policy allows for
rolling limits not to exceed 12 months or 365 days where the
permitting authority finds that the limit provides an assurance
that compliance can be readily determined and verified. See June
13, 1989 ‘Guidance on Limiting Potential to Emit,” February 24,
1992 ) emorandum ‘TJse of Long Term Rolling Averages to Limit
Potential to Emit” from John Rasnic to David Kee, and March 13,
1992 ‘Policy Determination on Limiting Potential to Emit for Koch
Refining Company’s Clean Fuels Project” from John B. Rasnic to
David Kee, stating that determinations to allow an annual rolling
average versus a shorter term limit must be made on a case by
case basis.- Various factors weigh in favor of allowing a long
term rolling average, such as historically unpredictable
variations in emissions. Other factors. may weigh in favor of a
shorter term limit, such as the inability to set interim limits
during the first year. The permitting agency must make a
determination as to what monitoring and averaging: period is
warranted for the particular source—category in light of how
close the allowable emissions would be to the applicability
threshold. - -
F. ‘ Clearly Recognized Enforcement
Violations of limits imposed by the rule or general permit
that limit potential to emit constitute violations of major
source requirements. In other words, the source would be
violating a ‘synthetic minor” requirement which may result in the
source being treated as a major source under Titles I and V. The
1989 Federal Register Notice provides for separat enforcement
9,

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and permitting treatment depending on whether the source
subsequently chooses to become major or remain minor. Thus,
violations of the rule or general permit or violation of the
specific conditions of the rule or general permit subjects the
source to potential enforcement under the “Clean Air Act and state
law. The operating permit rule states that notwithstanding the
shield provisions of part 70, the source subject to a general
permit may be subject to enforcement action for operating without
a part 70 permit if the source is later determined not to qualify
for the conditions and terms of the general permit. Moreover,
violation of any of the conditions of the rule or general permit
may result in a different determination of the source’s potential
to emit and thus may subject the source to major source
requirements and to enforcement action for failure to comply with
major source requirements from the initial determination.
Rule Reauireinents for State General Permit Proarams
As discussed above, general permit programs must be
submitted to EPA for approval under SIP authority or under
section 112(1), or both, depending on its particular pollutant
application. SIP and 112(1) approval and rulemaking procedures
must be met, including public notice and comment. The specific
application of the enforceability principles for establishing
State SIP or S112 (1) general permit programs require that the
rule establishing the program set out these principles as rule
requirements. In other words, these principles must be specific
rule requirements to be met by each general permit.
The rule establishing the program must require that (1)
general permits apply to a specific and narrow category of
sources; (2) sources electing coverage under general permits,
where coverage is not mandatory, provide notice or reporting to
the permitting authority; (3) general permits provide specific
and technically accurate (verifiable) limits that restrict the
potential to emit; (4) general permits contain specific
compliance monitoring requirements; (5) limits in general permit
are established based on practicably enforceable averaging times;
and (6) violations of the permit are considered violations of the
State and federal requirements and may result in the source being
subject to maj or - source requirements.
In addition, since the rule establishing the program does’
not provide the specific standards to be met by the source, each
general permit, but not each application under each general
permit, must be issued pursuant to public and EPA notice an
comment. The 1989 Federal Register notice covering
enforceability of operating permits requires that SIP operating
permit programs issue permits pursuant to public and EPA notice
and comment. Title V requires that permits, including general
permits, be issued subject to EPA objection.
10

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enforceability principle, because the Part 70 regulations set out
specific criteria that States should consider in developing their
general permit provisions (See 57 FR 32278). These factors
include requirements that
categories of sources covered by general permits
should be generally homogenous in terms of operations,
processes, and emissions. All sources in the category
should have essentially similar operations or processes
and emit pollutants with similar characteristics.”
Another factor stated is sources should be subject to the same
or substantially similar requirements governing operation,
emissions, monitoring, reporting, or recordkeeping.’ Examples of
source categories appropriate for general permits include:
degreasers, dry cleaners, small beating systems, sheet fed
printers, and VOC storage tanks (see 57 FR 32278).
B. Reporting or Notice to Per ijttjng Authority
The rule or general permit should provide specific reporting
requirements as part of the compliance method. Although the
compliance method for all sources must include recordkeeping
.requirements, the permitting authority may make a determination
that reporting requirements for small sources would provide
minimal additional compliance-assurance. Where ongoing reporting
requirements are determined not to be reasonable for a category
of sources, the rule or general permit should still provide that
the source notify the permitting authority of its coverage by the
rule or the permit. In the limited situation where all the
sources described in a source category are required to comply
with the all of the provisions of a rule or general permit,
notice is not needed. However, where there are no reporting
requirements and no opt-in provisions, th permitting authority
must provide the public with the names and locations of sources
subject to the rule or permit.
For Title V general permits, .Part 70 requires sources to
submit an application for a general permit which must be approved
or disapproved by the permitting authority. For SIP or §112
rules and SIP or §112 general permits, in response to receiving
the notice or application, the permitting authority may issue an
individual permit, or alternatively, a letter or certification.
The permitting authority may also determine initially whether it
will issue a response for each individual application or notice,
and may initially specify a reasonable time period after which a
source that has submitted an application or notice will be deemed
to be authorized to operate under the general permit or SIP or
S112 rule.
7

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C. Specific Technically Accurate Limits
The rule or general permit issued pursuant to the SIP or
S112 must specify technically accurate li,mits on the potential to
emit. The rule or general permit must clearly specify the limits
that apply, and include the specific associated compliance
monitoring. (The compliance monitoring requirements are
discussed further in the next section.) The stai dards or limits
must be technically specific and accurate to limit potential to
emit, identifying any allowed deviations.
The 1987 policy on SIP enforceability states that
limitations must be sufficiently specific so that a source is
fairly on notice as to the standard it must meet.” For example,
alternative equivalent technique” provisions should not be
approved without clarification concerning the time period over
which equivalency is measured as well as whether the equivalency
applies on a per source or per line basis or is facility—wide.
Further, for potential to emit limitations, the standards
set must be technically sufficient to provide assurance to EPA
and the public that they actually represent a limitation on the
•potential to emit for the category of sources identified. Any
presumption for control efficiency must be technically accurate,
- and the rule must provide the specific parameters as enforceable
limits to assure that the control efficiency will be met. For
example, rules setting presumptive efficiencies for incineration
controls applied to a specific or broad category must state the
operating temperature limits or range, the air flow, or any other
parameters that may affect the efficiency on which the
presumptive efficiency is based. Similarly, material usage
limits such as fuel limits, as stated above, require specifying
the type of fuel and may require specifying other operating
parameters. -
A rule that allows sources to submit the specific parameters
and associated limits to be monitored may. not be enforceable
because the rule itself does not set specific technical limits.
The submission of these voluntarily accepted limits on parameters
or monitoring requirements would need to be federally
enforceable. Absent a source—specific permit and appropriate
review and public participation of the limits, such a rule is not
consistent with the EPA’S enforceability principles.
D. Specific Compliance Monitoriri
The rule must specify the methods to determine compliance.
Specifically, the rule must state the monitOring, requirements,
recordkeeping requirements, reporting requirements, and test
methods as appropriate for each potential to emit limitation; and
clarify which methods are used for making a direct determination
of compliance with the potential to emit limitations.
8

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7
States are encouraged to discuss program needs with their
EPA Regiohal Offices. The OAQPS will work with them in
addressing approvals. As indicated, additional technical
guidance for implementing these approaches is underway and will
be made publicly available soon. For further information, please
call Kirt Cox at (919) 541—5399.
cc: Air Branch Chief, Regions I—X
Regional Counsel, Regions I—X
OAQPS Division Directors
A. Eckert
M. Winer
A. Schwartz
E. Hoerath

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Li
WASHD GTON, D C. 20460
.:J: 2 - 199i
OFFICE OF
AIR AND RADIATION
MEMORANDUM
SUBJECT: Clarification of Policy on Enforcement of Visible
Emission Violations for SIP Sources Meeting Applicable
Mass Emission Standards
FROM: William G. Rosenberg, Assist , t A 1i, 1 tor
Off ice of Air and Radiation// ’J ”
TO: Regional Administrators, Regions I—X
The purpose of this memorandum is to clarify previous EPA.
policy (May 4, 1982, Kathleen Bennett Memorandum) relative to
existing sources in compliance with applicable mass emission
standards but in violation of visible emission standards.
Compliance with a mass emission standard does not exempt a
source from the visible emission standard established in the SIP
for that source. Unless otherwise stated in the SIP, EPA
considers the visible emission and the mass emission standards as
independently enforceable limitations. In other words, a source
must demonstrate compliance with both standards using the
approved test methods (i.e. the SIP or E?A reference methods,
whichever is applicable). Failure to do so ma result in EPA or
the State bringing an enforcement action. against the source.
Some situations may, exist when a. SIP source. demonstrates and
documents its compliance with the mass emission standard. on a
consistent basis using the approved test method. and provides the
required data. to indicate that it has taken every step to achieve
compliance, but continues to exceed the opacity standard. In
these special cases, and only if the State agency and Regional
Office agree that no further improvements can be made in the
control and. process equipment for that source, the regulating
agency may choose to revise the visible emis ion standard in the
SIP. Pending EPA approval of any SIP revision, the existing
visible emission standard will remain in effect and continue to
be Federally enforceable.

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cc: John Seitz, Director, OAQPS
John Calcagni, Director, AQMD
Air Management Division Directors,
Regions I, III and IX
Air and Waste Management Division Director,
Region II
Air, Pesticides and Toxics Management Division Directors,
Regions IV and VI
Air and Radiation Division Director,
Region V
Air and Toxics Division Directors,
Regions, VII, VIII and X

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ml

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i O Sr 4 , ‘ 9 _ __ _
T UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
RESEARCH TRIANGLE PARK NC 27711
0
, C,

OFFICE OF
AIR QUALITY PLANNING
AND STANDARDS
APR 2 4 1995
MEMORANDUM
SUBJECT: Revised Guidance on the Treatment of Federal
Implementation Plan Clocks Following Section 179
Findings
FROM: “Director
Air Quality Stracegies and Standards Division (MD-15)
TO: Director, Air, Pesticides and Toxics Management
Division, Regions I and IV
Director, Air and Waste Management Division,
Region II
Director, Air, Radiation and Toxics Division,
Region III
Director, Air and Radiation Division,
Region V
Director, Air, Pesticides and Toxics Division,
Region VI
Director, Air and Toxics Division,
Regions VII, v iii, IX, and X
Memoranda issued in 1992 and 1993 provided guidance on,
among other things, how the sanctions and Federal implementation
plan (FIP) clocks operate following section 179 findings of
nonsubmittal, incompleteness, and SIP disapproval. t
Additionally, on August 4, 1994, EPA issued a rule prescribing
the sequence of section 179 mandatory sanctions (59 FR 39832)
In the preamble to the rule, EPA described a revised policy for
how the sanctions clocks operate following section 179 findings.
The purpose of this memorandum is to revise the 1992 and 1993
guidance on how the FIP clocks operate to be as consistent as
possible with the revised sanctions clock policy EPA adopted via
the sanctions rule.
1 The two memoranda are: July 9, 1992 memorandum from John
Calcagni to the Air Division Directors entitled “Processing of
State Implementation Plan (SIP) Submittals,” and a July 14, 1993
memorandum from Kent Berry to the Air Division Directors entitled
“Impact of Conditional Approvals on Sanctions and Federal
Implementation Plan (FIP) Clocks.”

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2
Background
The two memoranda :eferenced above provided guidance on how
the sanctions and FIP c iocks function. The July 9, 1992
memorandum indicated that to stop the sanctions clock, following
a section 179 finding, the State must correct the deficiency
prompting the finding. A finding of failure to submit a plan or
complete plan is corrected when the State submits a plan to EPA
that EPA finds complete. A SIP disapproval is Corrected when EPA
takes final rulemaking action fully approving the plan.
Concerning FIP clocks, the guidance indicated that section
110(c) (1) requires that EPA promulgate a FIP within 2 years of
findings of failure to submit, incompleteness, or SIP disapproval
unless two conditions are met: the State corrects the
deficiency, and EPA approves the plan.
The July 1993 guidance memorandum addressed the effect of
conditional approval on sanctions and FIP clocks initiated by
findings of nonsubmittal or incompleteness. The guidance
reiterated that when EPA finds that a State has failed to submit
a plan, or a complete plan, the sanctions clock permanently stops
when EPA finds the plan complete. If the EPA then takes final
rulemaking action to Conditionally approve the same plan, the FIP
clock will temporarily stop. The guidance further indicated that
the FIP clock will stop permanently if the State fulfills its
commitment, and the EPA then takes final action fully approving
the plan. However, the clock resumes where it stopped (and the
EPA remains under its FIP obligation) if the conditional approval
becomes a disapproval.
In the preamble to the sanctions sequence rule, in response
to public comments, EPA revised the sanctions clock policy
described in the July 1992 memorandum (see 59 FR at 39837-52)
The EPA retained the previously stated policy that in order to
permanently stop a sanctions clock and permanently lift
sanctions, EPA must finally determine that the State has
corrected the deficiency prompting the finding. However, the
revised policy indicates that EPA recognizes that it is
inequitable for sanctions to apply where EPA has made an initial
determination that the deficiency has been corrected and the
State, therefore, has presumptively corrected the deficiency.
Therefore, the policy and the rule provide that, following SIP
disapprovals, when EPA proposes to fully or conditionally approve

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3
the revised sip, EPA may also make an interim final determination
that the deficiency has been corrected. 2 This interim final
determination shall have the effect of temporarily deferring
and/or staying sanctions. 3 Sanctions are temporarily deferred
and/or stayed unless and until EPA reverses the proposed approval
and proposes or takes final action disapproving the SIp. The
purpose of this memorandum is to revise the July 1992 and July
1993 guidance to make the treatment of the FIP clock following
section 179 findings roughly consistent with this revised
sanctions clock policy.
Revised FIP Clock Poliçy
Overall Policy
By this memorandum, the FIP clock policy is being revised to
provide for the deferral of the FIP requirement following
findings of nonsubmittal and incompleteness and SIP disapprovals
where EPA has finally determined prior to 2 years from the date
of the finding that the plan is Conditionally approvable. Note,
like the revised sanctions clock policy, the conditional approval
will not temporarily or permanently stop the FIP clock. Rather,
the FIP clock will continue to run when EPA issues its
conditional approval, but the FIP requirement will be deferred
unless and until such time as the conditional approval converts
to a disapproval. Of course, if the State fulfills the
Conditional approval commitment and EPA fully approves the
revised sIp, then the FIP obligation is fully satisfied and the
FIP clock stops.
2 With respect to a conditional approval, EPA’s interim -
final determination can be made at the time of a proposed or
final conditional approval. The EPA will not take final action
on the interim final determination until the State has met its
commitment and EPA has issued a final full approval. For a
further discussion of interim final rules, see the sequence of
sanctions rule, 59 FR at 39832-52.
The policy and rule make similar provision following
findings of nonimplementation where the application of sanctions
is temporarily deferred and/or stayed if and when EPA makes an
initial determination that the nonimplementation deficiency has
been corrected. However, the policy and rule do not provide for
the temporary deferral and/or staying of sanctions following
findings of:nonsubmjttal and incompleteness because EPA’s
determination as to whether the deficiency has been corrected in
these cases consists of a completeness review. Completeness
reviews are not subject to notice-and-comment rulemaking for the
reasons discussed in the preamble to the sanction rule and thus
there is no initial finding of completeness on which to base a
temporary deferral and/or staying of sanctions.

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4
How the Policy Works
Findings of Nonsubmjttal and Incompleteness
Following findings of flonsubmjttal and incompleteness the
sanctions clock stops when EPA finds the SIP complete. Finding
the SIP complete also satisfies the first condition of stopping
the FIP clock as mentioned above. Regarding the second condition
that EPA approve the SIP, if EPA subsequently Conditionally
approves the SIP, then EPA’s obligation to promulgate a FIP 2
years from the finding will be deferred unless and until the
conditional approval converts to a disapproval (see footnote 1).
SIP Disapprovals
Following si disapprovals, regarding the first condition
for deferring the FIP obligation, if EPA subsequently
conditionally approves the submittal and makes an interim final
determination the deficiency has been corrected (as is done to
defer and stay sanctions), then EPA’s obligation to promulgate a
FIP at 2 years will be deferred unless and until the conditional
approval becomes a disapproval. In addition, the Conditional
approval also addresses the second Condition for deferring the
FIP obligation, namely that EPA approve the SIP.
Policy Rationale
The EPA’s policy rationale for deferring the FIP requirement
in the cases described above is that it is duplicative for EPA to
promulgate a FIP when after public notice and comment the State’s
plan has been determined to be conditionally adequate. Faced
with limited resources, the Agency believes it is more
appropriate for it to put its FIP development efforts on hold
where the State has submitted a substantive si with commitments
for filling the submittal’s gaps within the relatively short
period provided for a conditionally approved plan.
Legal Rationale
Section 110(c) (1) provides that the Administrator must
promulgate a FIP at any time within 2 years after the
Administrator makes a finding of nonsubmittal, incompleteness, or
SIP disapproval “unless the State corrects the deficiency and the
Administrator approves the plan or plan revision before the
Administrator promulgates” the FIP. The EPA believes that the
term “approyal” can apply to conditional approval, as well as to
full approval, since there is no disapproval element associated
or a discussion of how to make interim final
determinations, see the preamble to the sequence of sanctions
rule (August 4, 1994, 59 Federal Register 39837)

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5
with a conditional approval. However, since a Conditional
approval may convert to a disapproval, EPA does not believe that
a conditional approval should fully discharge the PIP obligation
as does a full approval. Therefore, during the time that the
conditional approval is in place, no FIP obligation will come
due, although any clock will continue to run. However, if the
conditional approval is converted to a disapproval and the FIP
clock has run out, the FIP obligation will then be re-triggered
and EPA would need to fulfill its FIP obligation as quickly as
practicable.
General questions on this clarification Should be directed
to Chris Stoneman of the Air Quality Strategies and Standards
Division (919-541-0823). Questions regarding application to
specific programs should be directed to the appropriate program
group within OAQPS or OMS.
Attachments
CC: Phillip Lorang, OMS
Rich Ossias, OGC
Lydia Wegman, OAQPS
Air Branch Chief, Regions i-x
Regional Air Counsel, Regions i-x

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Figure 1: FIP Clock Following
Findings of
Yes
Conditional
Approval Becomes
Disapproval - FIP
Obligation No
Longer Deferred and
is Now Due
Fl ? Clock Continues
But First Condition
for Stopping FIP
Clock Satisfied
(Sanction Clock
Stops)
EPA Conditionally
Approves sx Prior
to 2 Years From
Date.cf Finding

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Figure 2:
SIP IJisapprovals
FIP Clock Following
Yes
Conditional
Approval Becomes
Disapproval - FIP
Obligation No
Longer Deferred and
is Now Due
EPA Conditionally
Approves SIP Prior
to 2 Years From
Date of Finding and
Makes Interim Final
Finding that
Deficiency
Corrected
i3SHflo 11 n;
4 •.u-j r2 J.w,_.
I •II qj LJ :I 3
‘ U?S.j

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12

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e4 - 1 -
APPENDIX VI

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
• Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
4SEP 1 2
MEMORANDUM
SUBJECT: Procedures for Areas
to Attainment
FROM: John Calcagni, Dir4
Air Quality Management ivis
TO: Director, Air, Pestic es and
Division, Regions I and IV
Director, Air and Waste Management Division,
Region II
Director, Air, Radiation and Toxics Division,
Region III
Director, Air and Radiation Division,
Region V
Director, Air, Pesticides and Toxics Division,
Region VI
Director, Air and Toxics Division,
Regions VII, VIII, IX, and X
Purpose
The Office of Air Quality Planning and Standards (OAQPS)
expects that a number of redesignation requests will be submitted
in the near future. Thus, Regions will need to have guidance on
the applicable procedures for handling these requests, including
maintenance plan provisions. This memorandum, therefore,
consolidates the Environmental Protection Agency’s (EPA’s)
guidance regarding the processing of requests for redesignation
of nonattairunent areas to attainment for ozone (03), carbon
monoxide (CO), particulate matter (PM—b), sulfur dioxide (SO 2 ),
nitrogen dioxide (NO ), and lead (Pb). Regions, should use this
guidance as a general framework for drafting Federal Register
notices pertaining to redesignation requests. Special concerns
for areas seeking redesignation from unclassifiable to attainment
will be addressed on a case-by-case basis.
Background
Section 107(d)(3)(E) of the Clean Air Act, as amended,
states that an area can be redesignated to attainment if the
following conditions are met:
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1. The EPA has determined that the national ambient air
quality standards (NAAQS) have been attained.
2. The applicable implementation plan has been fully
approved by EPA under section 110(k).
3. The EPA has determined that the improvement in air
quality is due to permanent and enforceable reductions in
emissions.
4. The State has met all applicable requirements for the
area under section iio and Part D.
5. The EPA has fully approved a maintenance plan, including
a contingency plan, for the area under section 175A.
Each of these criteria is discussed in more detail in the
following paragraphs. Particular attention is given to
maintenance plan provisions at the end of this document since
maintenance plans constitute a new requirement under the amended
Clean Air Act. Exceptions to the guidance will be considered on
a case—by-case basis.
1. Attainment of the Standard
The State must show that the area is attaining the
applicable NAAQS. There are two components involved in making
this demonstration which should be considered interdependently.
The first component relies upon ambient air quality data. The
data that are used to demonstrate attainment should be the
product of ambient monitoring that is representative of the area
of highest concentration. These monitors should remain at the
same location for the duration of the monitoring period required
for demonstrating attainment. The data should be collected and
quality-assured in accordance with 40 CFR 58 and recorded in the
Aerometri.c Information Retrieval System (AIRS) in order for it to
be available to the public for review. For purposes of
redesignation, the Regional Office should verify that the
integrity of the air quality monitoring network has been
preserved.
For PM—b, an area may be considered attaining the NAAQS if
the number of expected exceedances per year, according to 40 CFR
50.6, is less than or equal to 1.0. For 03, the area must show
that the average annual number of expected exceedances, according
to 40 CFR 50.9, is less than or equal to 1.0 based on data from
all monitoring sites in the area or its affected downwind
environs. In making this showing, both PM—b and 03 must rely on
3 complete, consecutive calendar years of quality-assured air
quality monitoring data, collected in accordance with 40 CFR 50,
Appendices H and K. For CO, an area may be considered attaining
the NAAQS if there are no violations, as determined in accordance
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with 40 CFR 50.8, based on 2 complete, consecutive calendar years
of quality-assured monitoring data. For SO 2 , according to 40 CFR
50.4, an area must show no more than one exceedance annually and
for Pb, according to section 50.12, an area may show no
exceedances on a quarterly basis.
The second component relies upon supplemental EPA-approved
air quality modeling. No such supplemental modeling is required
for 03 nonattainment areas seeking redesignation. Modeling may
be necessary to determine the representativeness of the monitored
data. For pollutants such as 502 and CO , a small number of
monitors typically is not representative of areawide air quality
or areas of highest concentration. When dealing with SO 2 , Pb,
PM-b (except for a limited number of initial moderate
nonattainment areas), and Co (except moderate areas with design
values of 12.7 parts per million or lower at the time of passage
of the Clean Air Act Amendments of 1990), dispersion modeling
will generally be necessary to evaluate comprehensively sources’
impacts and to determine the areas of expected high
concentrations based upon current conditions. Areas which were
designated nonattainment based on modeling will generally not be
redesignated to attainment unless an acceptable modeling analysis
indicates attainment. Regions should consult with OAQPS for
further guidance addressing the need for modeling in specific
circumstances.
2. State Imp1ementatjo Plan (SIP) Approval
Th SIP for the area must be fully approved under section
110(k), and must satisfy all requirements that apply to the
area. It should be noted that approval action on SIP elements
and the redesignation request may occur simultaneously. An area
cannot be redesignated if a required element of its plan is the
subject of a disapproval; a finding of failure to submit or to
implement the SIP; or partial, conditional, or limited approval.
However, this does not mean that earlier issues with regard to
the SIP will be reopened. Regions should not reconsider those
things that have already been approved and for which the Clean
Air Act. Amendments did not alter what is required. In contrast,
to the extent the Amendments add a requirement or alter an
existing requirement so that it adds something more, Regions
should consider those issues. In addition, requests from areas
known to be affected by dispersion techniques which are
inconsistent with EPA guidance will continue to be considered
unapprovable under section 110 and will not qualify for
redesignation.
‘Section 110(k) contains the requirements for EPA action on
plan submissions. It addresses completeness, deadlines, full and
partial approval, conditional approval, and disapproval.
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3. Permanent and Enforceable Improvement in Air Quality
The State must be able to reasonably attribute the
improvement in air quality to emission reductions which are
permanent and enforceable. 2 Attainment resulting from temporary
reductions in emission rates (e.g., reduced production or
shutdown due to temporary adverse economic conditions) or
unusually favorable meteorology would not qualify as an air
quality improvement due to permanent and enforceable emission
reductions.
In making this showing, the State should estimate the
percent reduction (from the year that was used to determine the
design value for designation and classification) achieved from
Federal measures such as the Federal Motor Vehicle Control
Program and fuel volatility rules as well as control measures
that have been adopted and implemented by the State. This
estimate should consider emission rates, production capacities,
ajid other related information to clearly show that the air
quality improvements are the result of implemented controls. The
analysis should assume that sources are operating at permitted
levels (or historic peak levels) unless evidence is presented
that such an assumption is unrealistic.
4. Section 110 and part D Requirements
For the purposes of redesignation, a State must meet all
requirements of section 110 and Part D that were applicable prior
to submittal of the complete redesignation request. When
evaluating a redesignation request, Regions should not consider
whether the State has met requirements that come due under the
Act after submittal of a complete redesignation request. 3
2 This is consistent with EPA’s existing policy on
redesignations as stated in an April 21, 1983 memorandum titled
“Section 107 Designation Policy Summary.” This memorandum states
that in order for an area to be redesignated to attainment, the
State must- show that “actual enforceable emission reductions are
responsible for the recent air quality improvement.” This
element of the policy retains its validity under the amended Act
pursuant to section 193. (Note: other aspects of the April 21,
1983 memorandum have since been superseded by subsequent
memorandums; interested parties should consult with OAQPS before
relying on these aspects, e.g. those relating to required years
of air quality data.]
3 under section 175A(c), however, the requirements of Part D
remain in force and effect for the area until such time as it is
redesignated. Upon redesignation to attainment, the requirements
that became due under section 175A(c) after submittal the
complete redesignation request would no longer be applicable.
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However,., any requirements that came due prior to submittal of the
redesignation request must be fully approved into the plan at or
before the time EPA redesignates the area.
To avoid confusion concerning what requirements will be
applicable for purposes of redesignation, Regions should
encourage States to work closely with the appropriate Regional
Office early in the process. This will help to ensure that a
redesignation request submitted by the State has a high
likelihood of being approved by EPA. Regions should advise
States of the practical planning consequences if EPA disapproves
the redesignation request or if the request is invalidated
because of violations recorded during EPA’S review. Under such
circumstances, EPA does not have the discretion to adjust
schedules for implementing SIP requirements. As a result, an
area may risk sanctions and/or Federal implementation plan
implementation that could result from failure to meet SIP
submittal or implementation requirements.
a. Section 110 Requirements
Section ll0(a)(2) contains general requirements for
nonattainnient plans. Most of the provisions of this section are
the same as those contained in the pre-amended Act. We will
provide guidance on these requirements as needed. 4
b. Part D Requirements
Part D consists of general requirements applicable to all
areas which are designated nonattainment based on a violation of
the NAAQS. The general requirements are followed by a series of
subparts specific to each pollutant. The general requirements
appear in subpart 1. The requirements relating to 03, CO, PM-b,
SO 2 , NO , and Pb appear in subparts 2 through 5. In those
instances where an area is subject to both the general
nonattainment provisions in subpart 1 as well as one of the
pollutant-specific subparts, the general provisions may be
subsumed within, or superseded by, the more specific requirements
of subparts 2 through 5.
If an area was not classified under section 181 for 03? or
section 186 for CO, then that area is only subject to the
provisions of subpart 1, “Nonattainment Areas in General.” In
addition to relevant provisions in subpart 1, an 03 and CO area,
which is classified, must meet all applicable requirements in
subpart 2, “Additional Provisions for Ozone Nonattainment Areas,”
and subpart 3, “Additional Provisions for Carbon Monoxide
4 ceneral guidance regarding the requirements for SIP’s may
be found in the “General Preamble to Title I of the 1990 Clean
Air Act Amendments,” 57 FR 13498 (April 16, 1992).
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Nonattaininent Areas,” respectively, before the area may be
redesignated to attainment. All PM—b nonattajnment areas
(whether classified as moderate or serious) must similarly meet
the applicable general provisions of subpart i and the specific
PM—b provisions in subpart 4, “Additional Provisions for
Particulate Matter Nonattainment Areas.” Likewise, so 2 , NO ,, and
Pb nonattainment areas are subject to the applicable genera!
nonattainment provisions in subpart 1 as well as the more
specific requirements in subpart 5, “Additional Provisions for
Areas Designated Nonattainment for Sulfur Oxides, Nitrogen
Dioxide, and Lead.”
1. Section l72(c Requirements
This section contains general requirements for nonattainment
plans. A thorough discussion of these requirements may be found
in the General Preamble to Title I [ 57 FR 13498 (April 16,
1992)]. The EPA anticipates that areas will already have met
most or all of these requirements to the extent that they are not
%uperseded by more specific Part D requirements. The
requirements for reasonable further progress, identification of
certain emissions increases, and other measures needed for
attainment will not apply for redesignatjons because they only
have meaning for areas not attaining the standard. The
requirements for an emission inventory will be satisfied by the
inventory requirements of the maintenance plan. The requirements
of the Part D new source review program will be replaced by the
prevention of significant deterioration (PSD) program once the
area has been redesignated. However, in order to ensure that the
PSD program will become fully effective immediately upon
redesignatjon,.ejt e the State must be delegated the Federal PSD
program or the State must make any needed modifications to its
rules to have the approved PSD program apply to the affected area
upon redesignation.
ii. Conformity
The State must work with EPA to show that its SIP
provisions are consistent with section 176(c)(4) conformity
requiremeTrts. The redesignation request should include
conformity procedures, if the State already has these procedures
in place. Additionally, we currently interpret the conformity
requirement to apply to attainment areas. However, EPA has not
yet issued its conformity regulations specifying what areas are
subject to the conformity requirement. Therefore, if a State
does not have conformity procedures in place at the time that it
submits a redesignation request, the State must commit to follow
EPA’s conformity regulation upon issuance, as applicable. If the
State submits the redesignation request subsequent to EPA’s
issuance of the conformity regulations, and the conformity
requirement became applicable to the area prior to submission,
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the State must adopt the applicable conformity requirements
before EPA can redesignate the area.
5. Maintenance Plans
Section 107(d)(3)(E) of the amended Act stipulates that for
an area to be redesignated, EPA must fully approve a maintenance
plan which meets the requirements of section 175A. A State may
submit both the redesignation request and the maintenance plan at
the same time and rulemaking on both may proceed on a parallel
track. Maintenance plans may, of course, be submitted and
approved by EPA before a redesignation is requested. However,
according to section 175A(c), pending approval of the maintenance
plan and redesignation request, all applicable nonattainment area
requirements shall remain in place.
Section 175A defines the general framework of a maintenance
plan. The maintenance plan will constitute a SIP revision and
must provide for maintenance of the relevant NAAQS in the area
for at least 10 years after redesignation. Section 175A further
states that the plan shall contain such additional measures, if
any, as may be necessary to ensure such maintenance. Because the
Act requires a demonstration of maintenance for 10 years after an
area is redesignated (not 10 years after submittal of a
redesignation request), the State should plan for some lead time
for EPA action on the request. In other words, the maintenance
demonstration should project maintenance for 10 years, beginning
from a date which factors in the time necessary for EPA review
and approval action on the redesignation request. In determining
the amount of lead time to allow, States should consider that
section 107(d)(3)(D) grants the Administrator up to 18 months
from receipt of a complete submittal to process a redesignation
request. The statute also requires the State to submit a
revision of the SIP 8 years after the original redesignation
request is approved to provide for maintenance of the NAAQS for
an additional 10 years following the first 10-year period (see
section 175A(b)].
In addition,.the maintenance plan shall contain such
contingency measures as the Administrator deems necessary to
ensure prompt correction of any violation of the NAAQS [ see
section 175A(d)]. The Act provides that, at a minimum, the
contingency measures must include a requirement that the State
will implement all measures contained in the nonattainment SIP
prior to redesignation. Failure to maintain the NAAQS and
triggering of the contingency plan will not necessitate a
revision of the SIP unless required by the Administrator, as
stated in section 175A(d).
The following is a list of core provisions that we
anticipate will be necessary to ensure maintenance of the
relevant NAAQS in an area seeking redesignation from
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nonattajnment to attainment. We therefore recommend that States
seeking redesignation of a nonattainnient area consider these
provisions. However, ‘any final EPA determination regarding the
adequacy of a maintenance plan will be made following review of
the plan submittal in light of the particular circumstances
facing the area proposed for redesignatjon and based on all
relevant information available at the time.
a. Attainment Inventory
The State should develop an attainment emissions inventory
to identify the level of emissi ns in the area which is
sufficient to attain the NAAQS. ’ This inventory should be
consistent with EPA’s most recent guidance on emission
inventories for nonattajiunent areas available at the time and
should include the emissions during the tine period associated
with the monitoring data showing attainment. 6
Source size thresholds are 100 tons/year for SO ,, NOT,, and
PM 2 1O areas, and 5 tons/year for Pb based upon 40 CF 51.!oo(k)
and 51.322, as well as established practice for AIRS data. The
source Si2e threshold for serious PM-b areas is 70 tons/year
5 where the State has made an adequate demonstration that air
quality has improved as a result of the SIP (as discussed
previously), the attainment inventory will generally be the
actual inventory at the tine the area attained the standard.
6 The EPA’s current guidance on the preparation of emission
inventories for O and Co nonattajnment areas is contained in the
following documen€s: “Procedures for the Preparation of Emission
Inventories for Carbon Monoxide and Precursors of Ozone: Volume
I” (EPA-45Q/4—9l Oj 6 ), “Procedures for the Preparation of
Emission Inventories for Carbon Monoxide and Precursors of Ozone:
Volume II” (EPA—450/4—91—0 14 ), “Emission Inventory Requirements
for Ozone State Implementation Plans” (EPA-450/4-9 1 ... 010 )
“Emission Inventory Requirements for Carbon Monoxide
Implementation Plans”- (EPA-450/4—91-Oj1), “Guideline for
Regulatory Application of the Urban Airshed Model” (EPA-450/4...9j...
013), “Procedures for Emission Inventory Preparation: Volume iv,
Mobile Sources” (EPA—450/4—81—026d), and “Procedures for
Preparing Emission Inventory Projections” (EPA—450/4-91...Olg).
The EPA does not currently have specific guidance on attainment
emissions inventories for SO 2 . In lieu thereof, States are
referred to the guidance on emissions data to be used as input to
modeling demonstrations, contained in Table 9.1 of EPA’s
“Guideline on Air Quality Models (Revised)” (EPA-450/2—78—027R)
July 1987, which is generally applicable to all criteria
pollutants. Emission inventory procedures and requirements
documents are currently being prepared by OAQPS for PM-jo and Pb;
these documents are due for release by summer 1992.

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according to Clean Air Act section l89(b)(3). However, the
inventory should include sources below these size thresholds if
these smaller sources were included in the SIP attainment
demonstration. Where sources below the 100, 70, and 5 tons/year-
size thresholds (e.g., areas with smaller source size
definitions) are subject to a State’s minor source permit
program, these sources need only be addressed in the aggregate to
the extent that they result in areawide growth.
For 03 nonattainment areas, the inventory should be based on
actual “typical summer day” emissions of 03 precursors (volatile
organic compounds and nitrogen oxides) during the attainment
year. This will generally correspond to one of the periodic
inventories required fot nonattainment areas to reconcile
milestones. For CO nonattainment areas, the inventory should be
based on actual “typical CO season day” emissions for the
attainment year. This will generally correspond to one of the
periodic inventories required for nonattainment areas.
b. Maintenance Demonstration
A State may generally demonstrate maintenance of the NAAQS
by either showing that future emissions of a pollutant or its
precursors will not exceed the level of the attainment inventory,
or by modeling to show that the future mix of sources and
emission rates will not cause a violation of the NAAQS. Under
the Clean Air Act, many areas are required to submit modeled
attainment demonstrations to show that proposed reductions in
emissions will be sufficient to attain the applicable NAAQS. For
these areas, the maintenance demonstration should be based upon
the same level of modeling. In areas where no such modeling was
required, the State should be able to rely on the attainment
inventory approach. In both instances, the demonstration should
be for a period of 10 years following the redesignation.
Where modeling is relied upon to demonstrate maintenance,
each plan should contain a summary of the air quality
concentrations expected to result from application of the control
strategy. In the process, the plan should identify and describe
the dispersion model or other air quality model used to project
ambient concentrations (see 40 CFR 51.46).
In either case, to satisfy the demonstration requirement the
State should project emissions for the 10-year period following
redesignation, either for the purpose of showing that emissions
will not jncrease over the attainment inventory or for conducting
modeling.’ The projected inventory should consider future
growth, including population and industry, should be consistent
7 Guidance for projecting emissions may be found in the
emissions inventory guidance cited in footnote 6.

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with the attainment inventory, and should document data inputs
and assumptions. All elements of the demonstration (e.g.,
emission projections, new source growth, and ln9deling) Should be
consistent with current EPA modeling guidance.° For O and co,
the projected emissions should reflect the expected actual
emissions based on enforceable emission rates and typical
production rates.
For CO, a State should address the areawjde component of the
maintenance demonstration either by showing that future Co
emissions will not increase or by conducting reawide modeling.
Preferably, the State should carry out hot—spot modeling that is
consistent with the Ude1jne on Air Ouality ModeJ (Revised), in
order to demonstrate maintenance of the NAAQS. In particular, if
the nonattajnment problem is related to a pattern of hot-spots
then hot-spot modeling should generally be conducted. However,
hot-spot modeling is not automatically required. For example, if
the nonattainment problem was related solely to stationary point
--sources, or if highway improvements have been implemented and the
associated emission reductions and travel characteristics can be
qualitatively documented, then hot-spot modeling is not required.
In such cases, adequate documentation as well as the concurrence
of Headquarters is needed.
Any assumptions Concerning emission rates must reflect
permanent, enforceable measures. In other words, a State
generally cannot take credit in the maintenance demonstration for
reductions unless there are regulations in place requiring those
reductions or the reductions are otherwise shown to be permanent.
Therefore, the State will be expected to maintain its implemented
control strategy despite redesignation to attainment, unless such
measures are shown to be unnecessary for maintenance or are
replaced with measures that achieve equivalent reductions (see
additional discussion under “Contingency Plan”). Emission
reductions from source shutdowns can be considered permanent and
enforceable to the extent that those shutdowns have been
reflected in the SIP and all applicable permits have been
modified accordingly.
Modeling used to demonstrate attainment may be relied upon
in the maintenance demonstration where the modeling conforms to
current EPA guidance and where the State has projected no
significant changes in the modeling inputs during the intervening
time. Where the original attainment demonstration may no longer
be relied upon, States will be expected to remodel using current
. 8 The EPA—approved modeling guidance may be found in the
following documents: “Guideline on Air Quality Models
(Revised),” OAQPS, RTP, NC (EPA—450/2-78-027R), July 1986; and
“PM-b SIP Development Guideline,” OAQPS, RTP, NC (EPA-450/2-86—
001), June 1987.
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EPA referenced techniques. 9 This may be necessary where, for
example, there has been a change in emissions or a change in the
siting of new sources or modifications such that air quality may
no longer be accurately represented by the existing modeling.
c. Monitorina Network
Once an area has been redesignated, the State should
continue to operate an appropriate air quality monitoring
network, in accordance with 40 CFR Part 58, to verify the
attainment status of the area. The maintenance plan should
contain provisions for continued operation of air quality
monitors that will provide such verification. In cases where
measured mobile source.parameters (e.g., vehicle miles traveled
congestion) have changed over time, the State may also need to
perform a saturation monitoring study to determine the need for,
and location of, additional permanent monitors.
d. Verification of Continued Attainment
Each State should ensure that it has the legal authority to
implement and enforce all measures necessary to attain and to
maintain the NAAQS. Sections ll0(a)(2)(B) and (F) of the Clean
Air Act, as amended, and regulations promulgated at 40 CFR
51.110(k), suggest that one such measure is the acquisition of
ambient and source emission data to demonstrate attainment and
maintenance.
Regardless of whether the maintenance demonstration is based
on a showing that future emission inventories will not exceed the
attainment inventory or on modeling, the State submittal should
indicate how the State will track the progress of the maintenance
plan. This is necessary due to the fact that the emission
projections made for the maintenance demonstration depend on
assulnption3 of point and area source growth.
One option for tracking the progress of the maintenance
demonstration, proyided here as an example, would be for the
State to-periodically update the emissions inventory. In this
case, the maintenance plan should specify the frequency of any
planned inventory updates. Such an update could be based, in
part, on the annual AIRS update and could indicate new source
growth and other changes from the attainment inventory (e.g.,
changes in vehicle miles travelled or in traffic patterns). As
an alternative to a complete update of the inventory, the State
may choose to do a comprehensive review of the factors that were
used in developing the attainment inventory to show no
significant change. If this review does show a significant
change, the State should then perform an update of the inventory.
9 See references for modeling guidance cited in footnote 8.
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Where the demonstration is based on modeling, an option for
tracking progress would be for the State to periodically
(typically every 3 years) reevaluate the modeling assumptions and
input data. In any event, the State should monitor the
indicators for triggering contingency measures (as discussed
below).
e. Contingency Plan
Section 175A of the Act also requires that a maintenance
plan include contingency provisions, as necessary, to promptly
correct any violation of the NAAQS that occurs after
redesignatjon of the area. These contingency measures are
distinguished from those generally required for nonattajnment
areas under section 172(c)(9) and those specifically required for
O. and CO nonattajnxnent areas under sections 182(c)(9) and
l 7(a)(3), respectively. For the purposes of section 175A, a
State is not required to have fully adopted contingency measures
that will take effect without further action by the State in
grder for the maintenance plan to be approved. However, the
contingency plan is Considered to be an enforceable part of the
SIP and should ensure that the contingency measures are adopted
expediently once they are triggered. The plan should clearly
identify the measures to be adopted, a schedule and procedure for
adoption and implementation, and a specific time limit for action
by the State. As a necessary part of the plan, the State should
also identify specific indicators, or triggers, which will be
used to determine when the contingency measures need to be
implemented.
Where the maintenance demonstration is based on the
inventory, the State may, for example, identify an “action level”
of emissions as the indicator. If later inventory updates show
that the inventory has exceeded the action level, the State would
take the necessary steps to implement the contingency measures.
The indicators would allow a State to take early action to
address potential violations of the NAAQS before they occur. By
taking early action, States may be able to prevent any actual
violations of the NAAQS and, therefore, eliminate the need on the
part of EPA to redesignate an area to nonattainment.
Other indicators to consider include monitored or modeled
violations of the NAAQS (due to the inadequacy of monitoring data
in some Situations). It is important to note that air quality
data in excess of the NAAQS will not automatically necessitate a
revision of the SIP where implementation of contingency measures
is adequate to address the cause of the violation. The need for
a SIP revision is subject to the Administrator’s discretion.
The EPA will review what constitutes a contingency plan on a
case—by-case basis. At a minimum, it must require that the State
will implement all measures contained in the Part D nonattainment
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plan for-the area prior to redesignation (see section 175A(d)].
This language suggests that a State may submit a SIP revision at
the time of its redesignatiori request to remove or reduce the
stringency of control measures. Such a revision can be approved
by EPA if it provides for compensating equivalent reductions. A
demonstration that measures are equivalent would have to include
appropriate modeling or an adequate justification. Alterna-
tively, a State might be able to demonstrate (through
EPA-approved modeling) that the measures are not necessary for
maintenance of the standard. In either case, the contingency
plan would have to provide for implementation of any measures
that were reduced or removed after redesignation of the area.
Silnunary
As stated previously, this memorandum consolidates EPA’s
redesignation and maintenance plan guidance and Regions should
rely upon it as a general framework in drafting Federal Register
.,notices. It is strongly suggested that the Regional Offices
share this document with the appropriate States. This should
give the States a better understanding of what is expected from a
redesignation request and maintenance plan under existing policy.
Any necessary changes to existing Agency policy will be made
through our action on specific redesignation requests and the
review of section 175A maintenance plans for these particular
areas, both of which are subject to notice and comment rulemaking
procedures. Thus, in applying this memorandum to specific
circumstances in a rulemaking, Regions should consider the
applicability of the underlying policies to the particular facts
and to comments submitted by any person. If your staff members
have questions which require clarification, they may contact
Sharon Reinders at (919) 541-5284 for O3 and CO-related issues,
and Eric Ginsburg at (919) 541—0877 for SO 2 —, PM—b—, and
Pb—related issues.
cc: Chief, Air Branch, Regions I-X
John Cabaniss, OMS
Denise Devoe; OAQPS
Bill Laxton, TSD
Rich Ossias, OGC
John Rasnic, SSCD
John Seitz, OAQPS
Mike Shapiro, OAR
Lydia Weginan, OAQPS

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DRAFT
MEMORANDUM
SUBJECT: Deterrence in Clean Air Act Enforcement: Takinq
Federal Action When State or Local Penalties are
Insufficient
FROM: Courtney M. Price
Assistant Administrator for Enforcement
and Compliance Monitoring
Charles Elkins
Acting Assistant Administrator
for Air and Radiation
TO: Regional Administrators
Regions I—X
I. Introduction
The “Timely and Appropriate Guidance” (issued by Joseph
Cannon on June 28, 1984) requires that a “cash penalty of
sufficient magnitude appropriate to the violation” be
collected by State and local agencies in certain of their
enforcement actions. This policy statement attempts to
facilitate the implementation of the “Timely and Appropriate
Guidance” by explaining how EPA should review State and
local penalties to decide whether a federal enforcement
action for penalties is necessary in addition to the State
or local action.
II. Goal of Guidance
This guidance describes when EPA will seek to recover
penalties to ensure adequate deterrence as part of the Clean
Air Act enforcement program. By defining the size of the
penalties EPA expects the appropriate State or local agency
(hereinafter “State”) to collect, this guidance will allow
States and Regions to have a joint understanding of when EPA
is likely to take federal enforcement action. This guidance
also describes the process for EPA review of State penalties

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-2- DRAFT
through which EPA will determine the cases that need federal
action. The Agency will review both State administrative and
judicial actions. In reviewing State penalties, EPA does not
expect States to use EPA’s Clean Air Act Stationary Source
Civil Penalty Policy or to collect the full amount of a
penalty EPA would calculate. However, the Agency views many
aspects of the Federal policy to be appropriate factors for
State consideration.
III. Scope of Guidance
This guidance applies to State enforcement actions
against the universe of sources subject to the “Timely and
Appropriate Guidance” and to NESHAPs violators. The sources
subject to the penalty provisions of the “Timely and
Appropriate” Guidance are: (1) Class A SIP violators in
nonattainment areas in violation for the pollutant for which
the area is nonattainment... (2) violators of Part D, PSD,
and NSPS requirements which continue to operate after failure
to demonstrate initial compliance; (3) sources which violate
State or Federal administrative or judicial schedules; and
(4) repeat violators. NESHAPs violators are source owners
or operators violating hazardous pollutant standards promul-
gated under Sll2 of the Clean Air Act. These sources were
not subject to the “Timely and Appropriate Guidance” because
EPA determined that more expeditious action might be necessary
against them than that mandated by the guidance. However,
given the significant environmental impact of violations of
those standards, penalties are generally appropriate.
IV. Criteria for Evaluating State Penalties
EPA will review State enforcement actions against sources
subject to this policy (See paragraph III above) to make
sure each one imposes an appropriate cash penalty based on
the following factors:
A. a source’s economic benefit from delayed or avoided
costs associated with compliance
B. environmental harm (actual or potential)
C. degree of willfulness or negligence
D. cooperation/noncooperation in returning to compliance
E. history of noncompliance
F. ability to pay
C. non—cash penalty aspects of a State case resolution
which have financial impact on the source, e.g.,
suspending of operating permits, halting of
construction, or requiring a source to install
controls beyond regulatory requirements
H. after—tax effect of final State penalty

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3 DRAFT
I. whether regulation violated by the source Is a
“national standard” (NSPS, NESHAP)
J. other non—economic deterrence taken by State, e.g.,
effective publicity and mobilization of public
pressure
K. credit projects of the type that are acceptable
under EPA’s Clean Air Act Stationary Source Civil
Penalty Policy
V. EPA Procedure for Evaluating State Penalties
A. EPA Regional Offices should institute routine
consultations (once or twice a year) between EPA air
program and Regional Counsel personnel and appropriate
State personnel (both air programs and State Attorney
General’s offices) to discuss penalties in State
cases. EPA’s review of State penalties will take
the form of a random selection of a certain percentage
of the cases (such as 10%) which will be discussed
with State personnel to determine considerations
used in arriving at the penalty amount. This process
should be oral, requiring no additional reports to
be made by State personnel.
B. Selected concluded cases will be discussed, In
addition to or as a part of this routine consultation,
during Regional review of State programs under the
National Air Audit System.
C. Between the consultations, a State may contact EPA
Regional Offices while the State is in active settle-
ment negotiations with a source to ask EPA what
penalty amount EPA would consider appropriate.
Should a State make this inquiry, EPA will respond
with a figure it considers appropriate within thirty
days. If the State concludes a settlement which
contains a penalty EPA has stated it considers appro-
priate, the Agency will not take federal enforcement
action against that source for additional penalties.
D. EPA may, in the period between the routine consultations,
overfile in federal court after consultation with the
State in a case or take other appropriate federal
enforcement action. EPA may only do so if a State
has not exercised its option to make an inquiry to EPA
with respect to an appropriate penalty figure and
then concluded the State case for this amount.

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4 DRAFT
VI. EPA Considerations In Determining What Level of Oversight
to Utilize In A Particular State Enforcement Action
When EPA reviews a penalty in a State enforcement action,
the Agency will consider several factors to determine to what
degree EPA will defer to a State penalty determination or,
conversely, will need to assess a penalty consistent with
the EPA penalty policy. These factors are:
A. Whether the violating source is subject to EPA’s
Post—82 Enforcement Policy.
B. Whether the violating source is emitting a NESHAP
pollutant. (EPA has penalty policies for sources of
asbestos and vinyl chloride which allow the Agency to
determine very specifically what the penalty should
be.)
C. The environmental significance of the source’s-
violations.
1. Is the source located in a nonattainment area?
2. What is the level of emissions?
3. How populated Is the surrounding area?
D. The stringency of the compliance proqram, including
the expeditiousness of the compliance schedule and
any interim control requirements imposed.
VII. EPA Response to Insufficient State Penalties
A. The Regional Office should notify a State as soon as
it determines a penalty in an ongoing case to be
inadequate.
For concluded or ongoing State cases, the Region
should notify the State as soon as it determines
that federal action for penalties is appropriate
(when Region plans to refer a case to EPA Headquarters
or to DOJ, if direct referral, or when Region plans
to take administrative enforcement action under
Section 120). EPA will not take federal action for
penalties in a concluded State case (as set forth in
Paragraph V (B) above) if the State has consulted EPA
during penalty negotiations and has settled for a
penalty EPA determined to be appropriate.

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DRAFT
B. When EPA notifies the State that we have referred a
case or taken action under Section 120, the Agency
and DOJ will file the complaint or proceed with the
Section 120 action in all cases unless the State
increases the penalty to the amount EPA has determined
to be sufficient.
cc: Regional Counsels
Regions I—X
Directors, Air and Waste Management Divisions
Regions II and VI
Directors, Air Management Divisions
Regions I, III, V and IX
Director, Air, Pesticides, and Toxics Management
Divisions
Regions IV and VII
Director, Air and Toxics Management Divisions
Regions VIII and X

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I
—
1985
anc
FROM
Mike A1USh1-n1 a 1 nd Ed F eich
CONTROL NO
QRC-3-3
SUBJECT AND DATE DATE REC D
Deterrence in Clean Air Act Enforcement: 3/14
Taking Federal Action When State or Local Penalties
are Insufficient
DUE DATE
COMMENTS ON DRAFT GUIDANCE
REFERRED I 1) (2)
JHS MTN
REPLY SENT TO
REMARKS
ACKNOWLEDGED. DATE
0
NO ANSWER NEEDED
o (Explain in remarks)
a
,
!fl 5180-1 (6-72)
CflRM 72 AND
- “SEQ
(Rernoue this copy only, do not separate remainder.)
MAIL CONTROL SCHEDULE

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( fqJ
4RC APR 041985
MEMORANDUM
SUBJECT: Comments on Draft Guidance on Deterrence in Clean
Air Act Enforcement
FROM: Joan B. Boilen
Chief, Air & Tdx s Law Branch
TO: James H. Sargent
Regional Counsel
The following are comments concerning the Draft Guidance
on “Deterrence in Clean Air Act Enforcement: Taking Federal
Action When State of Local Penalties are Insufficient.”
1. It’s a good policy in general. It is recommended
that the state not only notify EPA of the penalty to be
sought, but also send EPA a copy of the proposed consent
decrees and keep EPA abreast of settlement negotiations.
2. Section IV k — This suggests EPA accepts credit
projects. Aren’t credit projects out?
3. Section V - Why not require discussion of penalties
during the monthly conference calls? Routine discussion of
penalties and the rationale for them will enable EPA and the
states to better undrestand each others interests/expectations.
4. I don’t see how we can determine whether a penalty
assessed by a state is based upon the factors listed in para-
graph IV, as we are supposed to, unless the state “itemizes”
the penalty. Yet in section II, the guidance says states
are not expected to use EPA’s policy.
5. Contrary to the expressed goal of the guidance in
Section III, this document does not-define the size of penalty
required to avoid EPA action. All this covers are factors to
consider. The only way a state can determine if EPA will
file is to ask if the penalty is acceptable. That would be
o.k. if there was some guidance, for whoever it is at EPA that
will be making these judgments, as to what is acceptable.
There is none. Who will be making these judgments?
6. Section VII B-I seriously question the wisdom of
paragraph B on page 5 of this draft. How can EPA justify using
CAA §120 as a retractable threat against states when the CAA
makes §120 actions mandatory in the first place? The practice
of withdrawing §120 actions could seriously damage the credibility
of the §120 enforcement effort.

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U. S. ENVIRONMENTAL PROTECTION AGENCY
REGION IV - ATLANTA, GEORGIA
DATE: April 5, 1985
SUBJECT: Deterrence in Clean Air Act Enforcement: Taking
Federal Action When State or Local penalties are
Insufficient
FROM: Director, Air, pesticides & Toxics
Management Division
TO: Judy Katz
Air Enforcement Division
(LE—134A)
Staff members of the Air Compliance Section in Region IV have
reviewed the above referenced document in draft form, and we are
providing the following comments:
1. Regarding “III. Scope of Guidance”, Region IV firmly believes
that this guidance applies to only a small percentage of the
total number of noncomplying sources within some regions.
Therefore the agency’s definition of significant violator
should be expanded to include all major noncomplying air
pollution sources regardless of attainment status or appli—
cable air program. This would expand the scope of the above
referenced penalty guidance to also cover all major noncomply-
ing air pollution sources.
2. Regarding “IV. Criteria for Evaluating State Penalties”, it
will be necessary for the state/local programs to maintain
their answers/responses/considerations associated with
each of these criteria factors in their files in order for
EPA to adequately overview state/local penalty assessments.
If adequate justification and documentation is not available
in the state/local files, then EPA could not carry out their
overview role in a timely and efficient manner.
3. Regarding “V. EPA procedure for Evaluating State Penalties”,
EPA should not rely only upon routine consultations (once or
twice per year) during the first full year or two after the
policy is implemented. EPA should have the option to overview
and critique each penalty assessment within a state or local
program until we feel confident that a particular program is
adequately implementing the policy. Also, where concluded
cases are discussed as part of the National Air Audit System
annual review, pertinent conclusions should be included in
the national report as well as individual state reports.

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—2—
4. Regarding “VI. EPA Considerations in Determining What Level
of oversight to Utilize in a Particular State Enforcement
Action”, it is a little unclear how the factors in Part VI.
are to be considered apart from the €actors in Part IV. This
should be clarified.
Winston A. Smith
cc: Edward E. Reich, Director
Stationary Source Compliance Division
Michael S. Alushin
Associate Enforcement Counsel
Air Enforcement Division

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1-
/
MEMORANDUM
SUBJECT: Comments on Draft Guidance on
Deterrence in Clean Mr Act Enforcement
FROM: James H. Sargent
Regional Counsel — Region IV
TO: Judy Katz
Air Enforcement Division LE-134A
A. First some general observations concerning the
guidance:
1. The goal of being able to say to a state that it may
assure that EPA won’t overfile by getting advance i PA approval
of a penalty is laudable. However, it’s difficult to see how
this guidance will help a state agency distinguish between
slavish adherence to EPA’s C A civil penalty policy (which it
isn’t expected to do) and coming up with an appropriate penalty
under the criteria set out in ara1rap1t fl’ of the draft. If,
as it appears to me, the auidance is intended to imply without
boldly stating that EPA intends to use its civil penalty
policy as a yardstick by which to t easure the appropriateness
(i.e., ai e) of the state’s penalty, then I tbink we’d be
better off saying that in a straightforward manner.
2. I believe the scope of the guidance is entirely too
narrow. I agree with the applicable comment (#1) au’ mitted
by the region’s Air Director.
T3. Some specific suggestions:
1. In addition to checking with us vis—a—vis the
appropriateness of the penalty, in order to get a t1 no overfiling”
commitment, the state should also be required to subr’it any
credit projects for advance approval, since an EPA OK on a
gross penalty figure can leave EPA holding an empty bag if
the penalty is largely set off by a meaningless credit project.
Also, in view of the recent pronouncement concerning the
unavailability of credit projects in EPP ’s l2() ctions,
should we defer a §120 action to state act .on which allows a
credit project as paragraph Ill—B suggests?

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—2—
3. I agree with the regional program’s comment #3 and
think the first sentence of paragraph iv of the draft
comtemp].ates what they’re suggesting. Perhaps that could be
accomplished in the context of our monthly conference calls.
4. While I don’t have any reason to doubt the applicability
of the factors set forth in paragraph vi to the issue of
deferral, it isn’t immediately apparent to me the manner in
which it is intended that the factors be applied. This should
be clarified.
cc: Mike Alushjri

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SECTION D
SECTION 111: STANDARDS OF PERFORMANCE
FOR NEW STATIONARY SOURCES (NSPS)
D

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I
c am1inaI®
SECTION D DOCUMENT 1
Enforcement of NSPS Requireme
04/26/76

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.s’
___ UNiTED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C. 20460
4 L . t
April 26, 1976
SC33tCr: iforc rent of NSPS Rjjr
‘ 10: Jay Sargent, Chief
Legal Erazi h, ifor erent Division
Region IV
Ed ar Reich, Q ief, En.fcrc nt Prceeaings
Divisj of Stationary Souxce for -r
This is in response to your inquiry 1cerning the steam ger.e at
st ject to NSPS at the 1’bnsartto Ch icaJ. Ccrpany in Decatur,
we arsi n the faces, cns2flto plans to use l , sulfur a,al
to ac .ieve carr,liance with the erLission 1iznitatj provisj of 40 R
850 • 43. H ever, I. onsanto has asked to b n a high sulfur fuel for 1.80
days after start- ,, but before the fonrance test re uir by 40 CFR
£50.8. D rir. this peric , the ca y will be operath g at less than
the ra d dt j rate. Your inquiry onnoez what enfoc
cpi , if any, the region can pursue to prevent r1santo f u ing
a hig ar sulfur coal after start-t but before the rf xra test
r .iired by 40 CFR 860.8.
The above cfrc tancas s) ld r t precl e the regi office
f. Czn using tever enforce nt nechan.ts it feels will insure
ca p1iaz ce with ?S r uir ts fr n the of erathm.
forca ant cpticrs incl x1e an a&th istzatjve order to bt curj lyir
1o i sulfur coal or, if appropriate, a civil or imina1 actj
The rationale for this a ,zoath is as fo11c ’s. Section 111(e) of the
Clean Air Act provides that it shall be 1 fu1 to operate a z s ce
in violaH of standards of rforrn anc a pUc bie to s h sauce. Also,
40 CE . 60.8(a) provides:
860.8 Perfonra tests.
(a) Within 60 days after achieving the na3d
production rate at which the a.ffected facility will be

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cperated, but rot later than 130 days after in.itial
start- of such facility a d at suc other tirres as
rray be reujred by the
of the iz cz,* the r e.r or operator of such facility shall
co uct .rfcra..’-.ce test Cs) a.r4 furn.jsh the Adrathistrator
a written re rt of the results of such perfor .&’ ce
test Cs). ( :- asis ar w’.)
The intent of 40 R §60.8 was to provide a short period of t± e
after start- during diich an affecteã facility could adjust and
fine ttz-. co tzol egui re -± before the perfo .a test. This
provisiofl rerely sets forth in regulatory form, those Ci stanc s
where A will exercise its eriforc nt isored to 11cw for
reasone le S 
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c ,di, r
SECTION D DOCUMENT 2
Enforcement of NSPS Requirements
05/03/76
2
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? • - Ti
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON DC. 20460 /9
e
May 3, 1976
?Z’2DP N
SL J CT: force nt of NSPS BWzei ents
TO: forc rent Division Directors
Regiona I-X
Fr 4: Director, Division of Stationazy Source Th forc r.ent
The attached orand n concerns an ? SPS enforc nent prob1 n which
occurred recently in Region IV.
T nsanto Cher .ica1 had planned to use low sulfur coal in a ste n
g nerat r subject to N S to achieve ca çliance with the e nission
1i. tation provision of 40 ‘R S60.43. ?tnsanto had asked to barn high
s 1 fuel for 180 days after start-up, before the perfo riance test
rui.- ...i by S60. 8. The issue was what enforce nt options e
to the regional office to prevent )bnsanto fran birning a
high 1fur coal. upon start—up.
T:: conclusion reached in the n crand zn was that the 180-day period
r.tovi for in 40 R S60. 8 is r t a grace period during which a urce
r’ d :. ce r attt to achieve a. liance with NSPS. Rather, it is a
e-do period, which ay be t necessazy, to allow for fine twiing of
c .itrol equ. ent. When a sit tion like the one in Region IV arises,
the regional office siculd pursue whatever enforcanent n chani n it feels
will insure e çeditious xxnpliance with N S ra uira nts. forcarent
options inc1i e an ac nnistrdtive order to b i rr lying low sulfur
coal or, if appropriate, a civil or oriminal action.
We have revi d these issues with the Office of General C w sel
ith con rs in the approach endorsed in the rorazid jn. Sh uld you
hi±ve any questions, please contact Barry isseU (202-755-2542) of my staff.
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SECTION D DOCUMENT 3
NSPS Determination - Subpart D 3
NOTE: Pertains to soot blowing
03/06/79
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S Ni BYWSEPA ; 6—30—94 ; 1:03PM ARIX-’ 703 306 5739# 6
5 i
MEl1ORA DUM
SUBJECT: SPS Determination — subpart P
FROM: Director
Division of Stationary Source Enforcement
TO: Enforcement Division Directors, Regions l—X
Air and Hazardous Materials Division irectors
Regions I—X
Surveillance and Analysis Division Directors
Regions I—X
This is a clarification of DSSE’s June 29, 1977, memo
on including the effect of noh—continuous, non—auto natic
soot biowin when performance testing steam generators that
are subject to SPS.
Unite which do not blow Boot continuously may have the
effect of soot blowing included by performance testing irt
the normal ner, provided that the follo ,ing precautions
are taken: 1) soot blowing is permitted only during one of
the test runs,* and 2) the soot blowing performance test
run ahould include as much of the soot blowing cycle as
ossS.ble.
When a short duration soot blowing period limits the
number of points which will be sampled during the portion
of the teat run that the soot blowers are on, then all of the
sampling points lyinçj on at least one stack or duct diameter
should be sampled while the soot blowers are on, if possible.
Single point sampling should always be avoided but may be
necessitated at sources with very short durat-ion soot
blowing periods. Ideally, a point of representative velocity
should be selected when single point aanplin9 is required,
if possible.
The representative average pounds of particulate emissions
per million TU (E) must be calculated by the following
• If it is expected that >50% of particulate •miasiona
occur during soot blowing periods, then soot blowiflg should
be required during 2 test runs.
E p r
• .MA ’ 1
qi u VLL ILL, lfa()
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SENT BY:USEpA 6—30—
94 1.O3PM ARTX-. 703 308 8739; 7
generaltzed equation rather than by simple averaging as
outlined in 40 CFR 60.8(f). This equation insures proper
weighting of a soot blowing performance test run regardless
of whether the aoot blowing ).ests the entire time of the
te6t run, and also regardless of the number nd duration of
the non-soot blowing test runs made while performance
testing a steam gene ator.
B E ( A+8) S + E ( R _ S — BS)
SB AR NO 3 R AR
wheres
pounds of particulate emissions per million BTU heat
input (lb/ *t STU or ng/ifl
average B for daily operating time
average S of sanpie(s) containing soot blowing
B average E of sample(s) wLth no soot blowing
I’ OSB
A hours soot blowing during sample(s)
B hours not soot blowing during sample(s) containing
Boot blowing
• R average hours of operation per 24 hQurs
S — average hours of soot blowing per 24 hours
Fo almost all steax generators with intermittent soot
blowing practices, the quantity of excess air is not expected
to vary significantly between periodi of normal operation
and periods of soot blowing. However, if significant
• variation in the quantity of excess air is expected, then an
additional method 3 analysis should be conducted, as out-
lined in 40 CFR CO. 46(f)(ii) with soot blowers on in order
to determine the SO while soot blowing. The SO., ot the
soot blowing run ca be deterz ined from the following equa—
t ions
502 • (%O )B + (SO )k
SBR OSB 2 s3
- B+A
wheres
502 the SO of the sample(s) containing oOt blowing
SBR 2
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SENI BY:USEPA ; 6—30—94 ; 1:04PM ; ARIX-’ 703 308 8739;# 8
— the %02 while not blowing soot
SB the % 02 while blowing soot
A ? oura oot blowing during sample(s)
1 . l i not soot blowing during aah ple(&) containing soot
blowing -
Then the %02 should be used to calculate E as outlined
SBR SBR
in 40 CFR 60.46(f)
If you should have any further questions on this
determination, please contact craig Cobert (FTS 755—0103)
of my staff. -
Edward E. Reich
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SECTION D DOCUMENT 4
Integration of Soot—Blowing Emissions with Routine
Operating Data for Existing Facilities
03/12/79
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SENT BY:USEpA 6—30—94 1 :02PM ARTX 703 308 8739;# 4
£ fr
l AR 12 79
SU8 ECT: Integration of soot—Blowing Emissions with Routine
Operating Data for Existing Facii.ities
FROMs Director, Divi8ion of Stationary Source Cnforcement
TO t cslLe Carothera, Director
F nforcet ent Division, Region I
This is in response to your memo of January25, 1979,
concerning the effect of soot—blowing emissions on determining
compliance with particulate emission limitations. We have
extensively examinod the soot—blowing issue and its imp3.i—
cationa when determining coriplianco with the new source
perforz ince standard (NSPS) for fossil fuel—fired steam
generators. We have determined that soot—blowing emissions
must be included when performance tests are conducted to
satisfy the requirements of the NSPS Subpart D. See attached.
memo for details on treatment of soot—blowing emissions.
The determination to include soot—blowing emissions under
? SPS were significantly affected by the language in Part 60
which requires ‘...no owner or operator subject to the
provisio a of this subpart shall cause to be discharged into
the atmosphere from arty affected facility any gas which...
This language provides us with the justification to include
all emissions which are considered representative of the
operation of the affected facility. Since aoot—blowLn(
occurs at re9uler intervals, these emissions canno be
discarded as being a result of an upset condition.
4e do not know whether the language contained in the
Z aine state implementation plan (SIP) is consictent with
the SPS language in that it provides for a never to exceed
emission limit. Any decision to include or exclude soot—
blowing emissions must be judged by the language in a
tate’s SIP. Bowever, we believe that if the state SiP is
silent on the Ls ue of soot—blowing emissions in determining
compliance of a source it would appropriate to Interpret
the never to exceed emission limit as requiring control f
soot—blowing emissions.
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SENT y:USEpA
94 1.O2PM ARTX 703 308 8739; 5
bis approach in dealing with existing sources ay
be r.ore stringent than the averaging approach (i ee attached)
we; have elected to use in ac 3rcssing ne sources. There—
tore, unless the SIP in a state specifica3i Y requires
controlling soot—blowing emissions at all times, then we are
recortunending that the si me i ethod for determining conpli nce
with new sour e3 be used or existincj aourCes.
The approach for including soot—blowing emissions as
described in the attached determination is to be used for
conpliance deterninatioriS for all new sourcea and al]..
existing sources unless otherwise provided in- the state SIP
for existing sources.
If you have any additional questions or conu ent5, please
give me a call.
Edward E. RQLCh
ccx Don Goodwin
Enforce1 eflt Divisiofl
Director8 II—X
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G j,din jI®
SECTION D DOCUMENT 5
Postponement of Enforcement Action During
NSPS Review
04/22/82
5
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. vi,c Jr M NTAL PRQTECflON AGENCY I )
A z2 1982
! . ‘ cT Ar DtJ ? t
FostFonerncnt of E’nforce ent Action ruring N PS Pcvie j
F O z Kathleen . Fennett ___
Assistant Adriinistrator for Air, Noise and 1 adiM
TO: Directors, Air & waste Panagc cnt ivisions
Regions I—IV, VI—VIlI, X
Directors, Air anagenent Divisions
Regions V and IX
his e orandu is in response to a cec’ucGt frou Region IV
asking for claritication of the gency’s policy cn erfcrcc cnt
during a review r challcnge of a pron ulgetcd NiPS or test
s ethod.
During the reriod of judicial, adirinistrative or internal
qency review, a standard or test tethod rerains in effect and
focceable . Any change in a çroinulgeted stanc ard or test methor
n only be accorni’lished through rulewe}ing j rocedurcs. There ay
a point , however, here it i necessary for the Agency to delay
an enforcernent procec ing .
Unfortunately, every dispute over an NSPS or test n ct od wil].
have uniçue circumstances, so specific criteria for deferring
cnforcer cnt are not generally available. Factors such as tLe
nature and scope of the challenge or review, the likelihood of
chanacs to the reguletion and whett er any irreparable injury
would occur by proceeding or fai1in to proceed ith enforcing the
current regulations should be considered on a case—by—case basis.
In general, d tecrai should be considered only where the standard
or method is likely to be chanc ed and significant cxr.ense would be
incurred in meeting the existing regulations which would not
likely be required under the revised regulations. Let me
reiterate that the rere existence of a challenge or review is not
in itself a reason for deferring enforcement.
Any questions regarding this memo or imrlementatiOn of its
content should be directed to Ed Reich, Director, DSSE at
322—2807.
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SECTION D DOCUMENT 6
Guidance on Policy for Enforcement of VE Violations
Against Sources Which are Meeting an Applicable Mass
Emission Standard
05/04/82
c m I®
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
, , % .I..1
WASHINGTON D.C. 20460
OFFICE OF
AIR. NOISE AND RAD$AT
SUBJECT: Guidance on Policy for Enforcement of VE Violations
Against Sources Which are Meeting an Applicable Mass
Emission Standard
FROM: Kathleen M. Bennett/
Assistant Administrator for Air, Noise and Radiation
TO: Regional Administrators, Regions I—X
The following guidance presents EPA policy for enforcement of
VE violations against sources which are meeting applicable mass
emission standards.
A Headquarters guidance memorandum issued on June 2, 1981..
states that where a power plant is in violation of a visible
emission limit, but concurrently achieved the mass emission
requirements, a revision of the visible emission limit for that
source may be an appropriate regulatory response and this might
justify giving lower priority to enforcing the VE limit in the
interim while the limit is being revised. The June 2nd guidance
was initially written to address oil—fired power plants, but has
been expanded to include other stationary sources which are
subject to both mass emission and visible emission standards.
Regional response to that memo requested clarification concerning
what criteria should be used, in determining when this guidance is
applicable. The policy presented below supersedes the previous
guidance issued on this subject .
Please note that this guidance is not intended to address
whether or not VE requirements are an independent, enforce b1e
part of a SIP. We believe they should be and, absent somet ing in
the SIP to the contrary, we believe they are. In addition, we are
not suggesting enforcement action against VE violations be taken
only when accompanied by a fully documented mass violation.
Rather, there are circumstances as identified below where yE is
basically a surrogate for mass emissions and consequently it would
be a waste of scarce resources to proceed with a VE enforcement
action when we believe mass standards are being met .
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Most visible emission standards were developed as a practical
and economjc means for determining whether emission control
equipment, necessary for a source to meet a mass emission limit,
is continuously maintained and properly operated. n instances
where no mass emission limit is applicable, such as fugitive
process emission sources, or where accurate emission testingis
not possible, visible emission standards are the vehicle for
irectly regulatjng particulate emissions and are not subject to
the guidance provided in this memo.
It is our policy not to pursue visible emission violations
where we believe it is probable that the source is in compliance
with the mass standard . If a source has documented its compliance
with the mass standard, we should evaluate the case to determine
if there is reason to believe that there have been any changes in
operating conditions or in the performance of the control system
to suggest that the prior determination is not an accurate
representation of its current compliance status with respect to
the mass standard , If there have been no such changes, the policy
stated in this memorandum would be effective. If there have been
any significant changes, further action might be appropriate.
Only after these areas have been investigated should
considera ion be given to revising the visible emission standard.
Of course, it will be necessary to consider the effect of any
relaxation of visible emission limits on attainment ana
maintenance of the ambient standards where VE was relied upon in
the State’s control strategy evaluation. Where appropriate, this
option should be discussed with the State agency as an acceptable
means of resolving the violation. However, the State may have
reasons for not wanting to change the standard and it is
appropriate ly the State’s decision to make . In any case, under
this condition, pursuit of an enforcement action by EPA would not
normally be a 3ustified use of resources.
If you have any questions or comments about this issue or
application of this policy, please feel free to call Richard
Wilson at 755—2977 or Edward Reich at 382—2807.
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SECTION D DOCUMENT 7
Restatement of Guidance on Emissions
Associated with SOOt-Blowing
05/07/82
7
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—; s 4
1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCy
WASHINGTON D.C. 20460 .
— 7 ,, OFFICE0F
I I LZ. AIR. NOISE AND RADIATION
MEMORANDUM
SUBJECT: Restatement of Guidance on Emissions Associated with
Soot-blowing
FROM: Kathleen M. Bennett
Assistant Administrator “for Air, noise arid Radiation
TO: Directors, Air & Waste Management Divisions
Regions i—iv, yr—yIn, x
Directors, Air Management Divisions
Regions V and IX
This memorandum restates EPA’s guidance on emissions
associated with soot—blowing as it relates to sources undij New
Source Performance Standards (NSPS) Subparts D and Da and State
mplementatjon Plans (SIPs) . Soot—blowers remove ash adhering to
heat transfer surfaces in boilers . In new and larger boilers
subject to Subparts D and Da, automatic, seznicontjnuous soot—
blowers are used; while in smaller and older boilers subject to
the SIP’s, periodic Soot—blowing is the dominant practice.
As required in 40 CFR 60.8(c), “performance tests shall be
conducted under such Conditjori 5 as the Administrator shall specify
to the plant operator based on representative performance of the
affected facility.” Since Soot—blowing occurs at regular
intervals for each generator, these emissions cannot be discarded
as being a result of an upset condition.
Recent data obtained for periodic soot—blowing for smaller
.pulverjzed and spreader stoker boilers show that uncontrolled
emissions increase significantly during soot—blowing, while
emissions controlled to levels of 0.1 lb/b 6 Btu or less by
fabric filters and scrubbers are unaffected by soot—blowing. This
would indicate that the fraction of very fine particles is
relatively unaffected by Soot—blowing and that other control
devices such as “cold side” electrostatic precipitators should be
unaffected, while less efficient systems such as mechanical
collectors may be affected.
For a source which blows soot on a semi—continuous basis,
emissions can be adequately represented by three sampling runs.
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2
For units which do not blow soot semi—continuously, data suggest
that the source’s ability to comply using fabric filters,
high—energy scrubbers, and medium to high efficiency ‘cold side’
ESP’s commonly used to meet design emission levels comparable to
Subparts D or Da should not be adversely affected by the inclusion
of soot—blowing. Testing should thus be done in accordance with
previous guidance issued by DSSE. A copy of this guidance, dated
March 6, 1979 and sent to all Regions, is attached for your
information.
Relative to SIP limits, demonstrations of attainment and
maintenance of National Ambient Air Quality Standards (NAAQS) are
normally based upon continuously achieving the emission levels
prescribed in State Implementation Plans, and the compliance
determinations should be based upon the performance of control
devices over the normal range of boiler operation. For fabric
filters, electrostatic precipitators, and wet scrubbers, the most
stringent test of their performance occurs at maximum boiler load.
For mechanical collectors, the most stringent test occurs at low
boiler loads. Therefore, it is recommended that SIP compliance
tests be made at both high and low loads, and include
soot—blowing per the March 6, 1979 guidance.
The attached March 12, 1979 guidance noted that it is
appropriate to interpret a never—to—exceed emission limit as
requiring control of soot—blowing emissions. This assumes that
the individual SIP does not specifically address the issue of
soot—blowing. If soot—blowing provisions are included in the SIP,
these SIP provisions will, of course, take precedence; if
provisions are not included, existing sources should be handled
using the same approach as the attached March 6, 1979
determination provides for handling new sources. (Of course,
inclusion of provisions in SIPs which provide exemptions in the
nass standard for soot—blowing presupposes a demonstration that
such exceptions will not interfere with the attainment and
maintenance of NAAQS.)
Sources which are in violation of emission limits during
soot—blowing operations and have not been exempted by the
applicable SIP provisions should be treated as violating sources
in accordance with other guidance. (See, for example, the
definition of a significant violator in my memorandum of
December 29, 1981 entitled aEPA Accountability System——OANR Policy
Guidance.’)
Should you have any questions, please contact this office.
Attachments
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SECTION D DOCUMENT 8
Timely and Appropriate Guidance and
Asphaft Plants
07/09/85
8
Q h jI®
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L7 I I’EI) ST \TES E \ !FtU \1I.Vl \L I’lt FF C I R)\ (, [ • (‘
V ‘IIL\ [ ’..I ( . O4( ()
pi 9
JL OFFICE
IR ’.DR C’
MEMORANDUM
SUBJECT: Timely and Appropriate Guidance and Asphalt Plants
FROM: Director
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
TO: William A. Spratlin, Director
Air and Toxics Division, Region VII
This is in response to your memo of April 22, 1985 concerning
the application of the timely and appropriate guidance to asphalt
concrete plants subject to NSPS. In your memo, you describe a
situation where an asphalt concrete plant ceases operation for
the year within 180 days of the initial startup without ever
achieving maximum production, and without conducting a performance
test. This results in a violation of the testing requirements
during the period of inoperation. This is compounded by the
impracticality of conducting a performance test during the winter
months. In addition, the timely and appropriate guidance would
prompt the commencement of an enforcement action including the
assessment of a cash penalty prior to the re—startup of the plant.
Your proposed resolution would require the asphalt concrete plants
to test within 30—60 days of their next initial startup which
would be enforced with a State or EPA order.
Your proposal appears reasonable where the failure to test
is beyond the ability of the source to conduct such a test.
However, it is our understanding that most asphalt plants can
achieve maximum production within 60-90 days of initial startup.
Since the regulations provide for a maximum of 180 days to demon-•
strate compliance, there is some responsibility upon the source
owner or operator to conduct the tests in a timely manner. It
appears that it should be possible, in most cases, to achieve
maximum production and conduct the necessary tests prior to
cessation of operation, but that the source owners or operators
may be choosing not to operate in that fashion in order to postpone
the need for testing. This should be investigated prior to
implementing your proposed strategy.
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2
Sources unable to achieve maximum production can also be tested
at a lesser rate if those tests will provide an indication of
their ability to achieve compliance under all conditions.
We have become increasingly sensitive to the application
of the NSPS to the asphalt concrete industry and in particurar
the application of the testing requirements. Increasing
evidence appears to indicate that a significant percentage of
affected facilities are not meeting the NSPS emission lim.ita—
tions or the testing requirements. In light of this situation,
it is essential that EPA take a consistent approach when
dealing with this industry, and that national guidance be
followed to the maximum extent practical.
If you have any questions regarding this memo, please
contact Rich Biondi at 382—2831.
Edward E. Reich
cc: Steve Hitte
Bob Ajax
Earl Salo
Tracy Gipson
Air and Waste Management Division Directors
Regions II and VI
Air Management Division Directors
Region I, III, V. and IX
Air, Pesticides, and Toxics Management Division Director
Region V
Air and Toxics Division Directors
Regions VII, VIII, and IX
Air Program Branch Chiefs, I egions I—X
Air Compliance Branch Chiefs, Regions II, III, V IX
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SECTION D DOCUMENT 9
Inclusion of Soot-Blowing Emissions in
Subpart D Compliance Testing
08/27/87
9
-------
REGTfl J S
Tfl : t2—
lfl:lfl iflfl3 P
— I , •
SUBJECT:
FROM:
TO
S/f
V - ,/‘ f
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASH GToN, D.C, O46O
AUG 3 1987
AIR AriD AaIATlON OIVIS ON
U.S. EPA, REG$ON V
MEMORANDUM
Incluslon of Soot-Blowing Emissions in Subpart D
Compli.arice Testing
John S. Seitz, Director. ______
Stationaxy Source Ccmp2(je nca D vision ,
Of jca of Air Quality Planning and Standards
D vjd Xes, Director -
Air Management Division, Region V
In response to your conCerns, we have completed a reanalysis
of the method for evaluating soot-blowing emisaio in compli ce
tBsting. The stack test data submitted, by your office shows that
the effect of soot blowing is negligible for sot ce contjj .
by a high efficiency ESP or bag house, but is dramatic for
u.ncorltrollsd sources. This confirms our original information
that the only sources for which the method of Soot-blowing
averaging could affect compliance determinations are sources
which do not blow soot continuously and which do not have a high
efficiency control device. Unfortunately, from the data
ubmjtt d we cannot assess the relative effects of the soot—
blowing averaging tethods (i.e., time weighted vs. arithmetic) on
compliance daterm natjons because the data does not iflclud.
information concerning- two varjthles necessary to complete the
time weighted. averaging equation:
(1) average hours of operation per 24 hour day;
(2) average hours of Soot-blowing per 24 hour day.
Nevertheless it is our belief that depending on the number
of non soot-blowing test runs and whether soot—blowing lasts the
entire time of the soot-blowing test run, arithmetic averaging
can be a more stringent method of determining compliance. While
C,
oP, a,
Afl4AUc
-------
CS EPP REGION 5 PEE ID312—353—8289 PUG 15’94 10:10 No .003 P.31
2
this may be t.rua and, thare ore, may be good from the standpoint
that more uncontrolled sources woul.d be induced to use better
control devices, it may only be true for sources which do not
blow soot continuOUSlY. This could have the unintended ef act of
pena .i1ing sourceS for not blowing soot continuously, The time
weighted averaging equation stated in the March 6, 1979 memo
(attached) was des .gnad to ensure a uniform compliance
determination method which would. not be affected by the number
and duration of non soot-blowing runs. It is because a strict
reading of §60.8 arguably does not provide for tasting of soot-
blowing in any of the three required test rune that the March 6,
1979 determinatiOn was made. Based on this reanalysis it
continues to be this division’s policy that the inclusion of
soot-blowing for Subpart D compliance tasting be consistent with
that stated in our March 6, 1979 memorandum.
This, however, may not fully address the problem where this
concern arises in the context of State Implementation Plans.
while the technical and policy considerations may be identical
from the Federal viewpoint, there may be some difficulties
associated w .th State interpretations. Where these interpreta-
tions have an adverse impact upon an area’s ability to attain and
maintain MAAQS, than it would be more appropriate to address it
through the SIP process.
I want to thank you for your cooperation in assisting us
in our efforts to reach a national policy on this issue.
Should you have any additional quest ons, please contact Jim
nge1 of my staff at 392-2877.
httachment
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10
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u / / i ijiu ii:i mA 5b4 UU STATIONARY SOURCE I OO2
-
UNITED STAlES ENVIRONMEPrrAc. PROTECTiON AGENCY
j WASHlNGTO i, D.C. 20460
4 t
- FC OF EP4FO EMEJ,rr
PRIVILEGED AND CONFIDENTI
ATTO N j WO X PRODUCT
ENFORCEMENT SENSITIVE
DO NOT RELEASE UNDER POIA
! 4EMORkNDtJM
\ZSUBJEcT: Paperwork Re .ctier Act ICR Lap5es end 0MB Control
Number Display for Clean Air Act Regulations
/ FROM: Kath ie A. Ste in Af ’t J Q’
Entorcement Counsel for Air
TO; Re jiQnal Counssl, Re9ions I-X
The attached y7 ,_ 9 93 memorandum from Tom Kelly,
Director of the Office of Poli Panning and Evaluation’s
Office of Regulatory Management and Evaluation, provides
information regarding current and historical ICR lapses and 0MB
coi olTJi umbèr display for 25 Clean Air Act stationary source
r.egul&ti ns. As noted in the attachment, the Kelly memorandum
uses “ splay 11 as a synonym for “cite” or “publish,” and offers
no conclusions as to the legal sufficiency under the Paperwork
Reduction Act (PRA) of the referenced appearance of the control
number. The attached memorandum updates, corrects, and
supersedes the Kelly memorandum dated April 7, 1993. You should
use the information in the May 7, 1993 memorandum to assess the
impact of the PRA on your enforcement actions involving these 25
regulations.
If you have questions regarding either the attached
memorandum or the effect of the PR.A on your Clean Air Act cases,
please call me or have your staff call Steven Viggjanj of my
staff at (202) 260—2842.
Attachment
cc: (u/attachment)
Scott C. Pulton, Acting Av. i;tant Administrator
Robert Van ifeuvelen, Acting Deputy Assistant Administrator
Fred Stiehl, Acting Director, Office of Civil Enforcement
Steven Chester, Deputy Enforcement Counsel for RCRA
John Seitz, Dircotor Office of Air Quality Planning and
Standards
P tn R M Pipe
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uQ’ # £K1 J .Ll.J..J r t LU UVUO Ui ALL .)ULIX t ,fl IQJUUJ
—2—
John Rasnic, Director, Stationary Source Compliance Division
OE-Air At.torneys
Kathleen Hughes, Acting Chief, Office of Criminal
Enforcement Counsel
Frank Covington, Director, National Enforcement
Investigations Center -
Howard Corco an, Office of General Counsel
Alan Eckert, Office of General Counsel
Tom Kelly, Office of Policy, Planning and Eval .iaticn
Regional Counsel Air Branch Chiefs, Regions I-X
John Cruden, Chief, Environmental. Enforcement Section,
Environment and Natural Resources Division, tT.S.
Department of Justice
ruce Celber, Deputy Chief, Environmental Enforcement
Section, Environment and Natural Resources Division, u.s.
Department of Justice
Joel Gross, Deputy Chief, Environmental Enforcement Section,
Environment and Natural Rosouroes Di.vicion, U.S.
Department of Justice
Neil Cartu cjej.l.o, Chic , EnvirQnmenta . Crimes Section,
Environment and Natural Resources Division, U.S.
Department of Justice
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U /?. /IJ7 Hill 11 1J kAA ZU b4 UUU ,1A11UINAKk bUUKI fl ‘ JUU4
J - *
UNITED STATES ENVIRONMENTAL. rROTEC 4 FIØN AGENCY
WASP4INGTON.D.G. 20460
‘ 4 . 1 lot
OFFICE OF
PQLICV. PLANNING AND VALUATICN
HAY 7I9 3
4ORANO X
S1 B7ECT: Clean Air Act Regulat a I v
Th Kelly, Directo 4
Office of Regul.atorYf anage en d Ev lu tion
TO: Kathie A. Stein
Enforcement Counsel for Air
Office of Enforcemefl
I have attached the informatiOn you requested relating to
Office of Management and Budget (0MB) clearance of information
collection requests (I cR) for se1ecte clean Air Act (CA&)
regulations. The attacb ent includes all su.bparts identified in
yourmemoranda of March 25, April 9, and April 14, 1993. It 1s
ir cludes infor iatioft on those CAA sectionS listed in the undated
multi-media memorandum from the Office of Enforcement.
Although my April 7th memorandum provided information on
lap c5 in clearance for the su.b arts listed in your March 25th
memorandum, those subparts are repeated here with corrections
made after reviewing information received from 0MB in a printout
of their database. None of the subparts listed on the attachment
have partial clearances fro,n 0M5.
The attachmei t al;o includes information on the display of
the:OMB approval number in the Federal Register and the Code of
Federal Requ4atiOfls. This information was compiled by Steven
viggiarLi of you office.
Attachment
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£U OU’e VUDO 1ttILviNMt1 UUAt ,fl tgjuu
Attach ment
__________________ p 4 .
tRLBCtED CLEAN Pifl ACT _ ICRS E
Notes: (1) As used below, the term p4isp].ay” refers only /
to correct 0 M B control number display, in eith r the Federal
Register or the C.F.R. tncorrect number displays are not
included unless noted. Mote also that “display” is used only as
a synonym for “cite” or “publish”, pot as a legal conclusion
regarding the adequacy or inadequacy of the display under the
Paperwork Reduction Act. (2) Federal Register displays have
teen checked back to 1985, but not earlier unless noted.
(3) The earliest Federal Register publication of a control
number was counted as the “first display”, whether in the
preamble or text of a proposed or final rule, or in an Agency
notice of 0MB consiSeration or final action on an ICR renewal or
other ICR submission. (4) C.F.R. displays have been checked
back to 1985, but not earlier unless noted. (5) All lapses have
been checked against information contained in 0MB database
printouts. (6) None of these subparts currently has a partial
0MB clearance.
3. N8PS SUBPART A’ GIG Control No. 2060-0207
* Summary report form requirements contained in 5 60.7(c)
and (d).
C. t . .R. DisD 1ay
No display in the 1991 edition (the first edition to publish
the anended NSPS Subpart A regulations containing the new suinary
report form requirements) or 1992 edition.
Federa . Regist sr DisDlay
First displayed on April 22, 1991 (56 FR 16332), in a notice
of 0MB approval.
Histox ical tec es in 0 KB Approval .
No lapses.
2. liSPS SUflZBT Db OIG control No. 2060—0072
C..t.R, DisDifty
First displayed in the 1987 edition, at the end of 55 6O.48b
and 60.49b. In the 1988 edition, the correct number is still
displayed at the end of S 6O.48b, but an incorrect number appears
at the end of § 60.49b. This correct/incorrect number split
continues through the 1992 edition.
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UO/ O1VI mu ii;i & AA b4 UUIi8 S1A1IUNARY SOURCH l ooe
2
P dera1 P egist r T3isnl..p.y
First displayed on Hover 25, 1986 51 PR 42788), in the
textofthefinalX 1e.
Historica1 tapSes ii cB _ ADpro a1
01/01/93 — 04/21/93 111 days
3. NBPB 8 Bfl3T c O Coutrol No. 206D 0202
ç .R. DinDlay
First displayed in the 1991. edition, at the end of 60.48c.
Same display in 1992 edition.
. F dera1 R.e i ter Dts 1ay
First displayed on Septe. er 12, 1990 (55 PR 37682), in text
of the final rule.
Histoñcal La aes In 0MB i preva1 .
No lapses.
4. NSPS 8U P1flT P 010 Control No. 2060-0025
ffl pIav
Pir t di p1ayed In 1989 edition, at the end of §5 60.63 and
60.65. Same display in 1990 to 1992 editions.
£ederal Reaister Distlav
First displayed on December 14, 1988 (53 PR 50354), in the
text of the final. r ai..
Uistcr ica1 La àes inOKB 1 pprov l
01/01/85 — 12/05/00 1,430 days
01/01/92 — 05/2.1/92 3.32 days
5. •NSPS 8 BP RT I 010 Control NO. 20600003
C.F.1 . DiB;1a
No &tsplay in 1985 to 2.992 editions.
Federal .aister Displav
First displayed on anuary 3, 1.985 (50 FR 343), in a notice
of 0MB approval.
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UQ LQfUt mu ss.so tftA hU 004 UU0O 1A1IU1NA1U bUL IM,fl I JUQ7
3
Historical Lap ns in ONBJ oorova1
- 01/01/88 — 01/05/88 5 days
. flPS SUBPART .7 0MB Control No. 3060e0023
J ,R. tsptay
No correct num ar has been displayed in the CS.R. An
incorrect number (2060—0063.) was published in an August 11, 1989
subpart .7 amcndaent (54 YR 34029) • and has appearnd in the 1990
to 1.992 editions.
frgera l ReaistetDisnl 2
First displayed on July 22, 1985 (50 PR 29757), ma notice
of 0MB approval,
Hisitorical _ Lapses in ONLapPr oval
02/01/85 — 06/3.9/85 139 days
04/01/86 — 12/25/86 239 days
03/01/90 — 06/12/90 104 days
01/01/93 — 03/17/93’ 76 days
* This lapse applies to the fluid catalytic cracking unit
amendaents only.
7. NSPS SUBPART K
No ICR.
8. lISPS SUBPART 1* OHS Control No. 2060e9122.
ç.F.R. Uisy lav
•-‘No display of either current control number (2060-0121) or
original control ni.S$er (20 0—0207) in the 1983 to 19!2 editions.
Federal Register _ Display
Current control number (2060—0121) first displayed on August
19, 1985 (50 FR 33411), in a notics of 0 approval.
ffj&torical la pses in 0MB Ap ron1 .
02/01/85 — 07/25/85 175 days
08/01/88 — 11/17/80 109 days
12/01/91 05/29/92 3.81 days
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Ub/ /U7 ltiU 17:i kA . UZ b4 UUU 1A1iUtiALU UUKI.,ti WJUUO
4
- t apa s P 0MB Control No. 2060—0074
ç 1 y.R. Diop1 M
No display in tha 3.987 •dition (the first edition that
published this rule) to the 3.992 editiOn.
de ra1 RegistiS1 la’L
First displayed ort April 8, 1987 (52 FR 11420), in the
preamble to th final rule. -
Historical Lasses in 0MB _ A1 prOva] .
09/01/90 06/06/91 279 day
10. NSPB SVBflIT 0 o n Control No. 2050—003!
ç,P.R. Distlay
No display in the 3.985 to 3.992 editionS.
çdera1 Reaister Di.SDta
First displayed on January 6, 3.986 (51 YR 444), in a notica
of 0MB approval.
Hiotoric4 Ln 0M A x Th1
05/01/86 — 3.2/3.1/85 225 days
12/01/91 — 07/09/92 222 days
ji. SP8 $VDP1 ? TI 0MB Control. No. 2060—0081
c.P.R. Displ.8Y
No display in. the 1985 to..1992 editions.
federal Reajeter nisp1 -
First displayed on January 3, 1985 (50 YR 343), in a notice
of 0MB apprval.
Historical LapSes In 0M roVft1
01/01/98 — 01/05/88 5 day5
05/01/91 05/23/91 23 days
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uoi ot,, mu . i;io r b4 uu S1A1iUNA.K SUUk(( H I JOO9
5
ws;s SUBPART VT 014B Control No. 2060-0012
is lav
First displayed in 1984 edition (the first year that this
regulation was published in the C.F.R.), at the end of § 60.486
and 60.487. Sane displays in 1905 to L992 editions.
? era1 Re ietQr Di pla
First displayed on Oetob4r 18, 1983 (48 FR 48328), in the
text of the final rule.
Historical...Lapses in 0MB AtrnroVa] .
06/01/86 06/20/86 20 days
07/01/89 — 01/23/90 207 days
13. NaPS 8USP IT C) Control No. 2060—0001
C.F.R. Di5plav
First displayed. in 3.984 edition (the first cditioit that
pi.thlished this regulation), at the end of § 60.493, 60.494 and
60.495. Sane displays in 1985 to 1992 editions.
der al Reçistpr Display
First displayed on August 25, 1983 (48 R 38737), in the
text of the final rule.
Nistorical Lapses in O! Ap rova .
11/0l/8S — 05/14/86 195 days
£4. NSPS SUBPART u o 3 Control No. 2060—0006
irst displayed •i the 1984 edition, at th. end of § 60.502
and 60.505. Sane displays in 1985 to 1992 editions.
Fe d ra1 _ Register OisplaM
First displayed en June 3, 1986 (51 FR 19594), in notice of
Ol th approval.
HiBtprical T.apses jn O1i M røval
11/0lf8 — 05/02/86 103 days
06/01/89 — 10/16/89 138 days
02/01/93 — 03/03/93 31 days
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i/:io FAA ZUZ b4 ooiia STATIONARY SOURC H ( O1O
6
15. NBfl OflflflT as Cottrol No. 2060-0197
ç.T.R. Di rilav
No display of the correct number (2060—0197) in the 1.990
edition (the first edition that published this regulation) to the
present. An incorrect ntxmber (2060-0055) has been displayed at
the end of 5 60.666 in the 1990 to 2.992 editions.
edera1 Reqlster _ Disvla
Pint displayed on september 13, 1990 (55 PR 37756), in
notice of 0KB approval.
Historical tavses in 0NB AVtrOYfl
No lapoes.
16. N8?8 SUBPART 000 0N3 control. No. 2000—0050
C ,F.R . flisø lsy
rirdt displayed in the 1986 edition (the first edition that
published this rifle), at the end of § 60.676. Same display in
1987 to 1992 editions.
Federal Register Display
First displayed on August 1, 1985 (52. PR 31337), in text of
final rule.
Hiztor%cal tansos in 0MB ApnrDva l
08/02./SO — 01/13/89 2.66 days
02/01/92 — 05/11/92 2.01 days
17. NZSflY SUBPART &
N OIQ
18. $flflP SUBPUT 3 0KB Control No. 2060-0097
çjj.R. Display
Not displayed in the 1985 and 1986 editions. First
displayed in the 1987 edition, at the end of S 61.55. Same
display in 1988 to 1992 editions.
-------
O8/ 8/ 7 thU 1’T:ib FAA 4 uu i 1LUI ftZU UU1t fl . IuL L
7

First displayed on December 3, 1986 t5 . FR 43662), in ncti e
of 0MB approVal. AlSO displayed on March 3.9, 3.987 (53 TR 0727),
in text of final rule.
HistOd. 1 t#Dses in 0MB Approval
02/01/82 — 08/06/82 187 days
08/01/85 — 10/24/86* 450 ‘ays
02/02.190 — 06/3.4/90 3.34 days
* 01 (3’s d tabase shows this lapse as starting with 08/01/86, but
it appears to be a data entzy error.
19. 1iE2 P 8U8ThR1 J
This regulation makes various equipment in benzene serv ice
3ubj cot to NESHAP Subpart V. Accordingly, see di5cussiQfl for
NES1(AP Subpart V.
20. NB8 P 8UBflRT L O B Control V . 2060 —0185
DisP1 yL
First displayed in the 1990 edition (the first edition that
pi bli h d this rule), at the end of 5 61.138. The 1991 edition
contained this same display. The 2.992 editiOn displays the
w.2mber at the end of both 5 61.138 and § 61.139.
Federal Re is.t r I3i p1aV
First displayed on September 2.4, 1989 (55 FR 39073), in text
of final rule.
Historica2. tpse i O tB Ap rOVa] .
04/01/93 present
21. NEBThP 8UBP BT X’ O1 control o. 2060-0101
*Thc1ude 40 CP 61.150 frOm multi-media memo
C.F.. R. isolay
The current 0MB control number (2060-0101) ha5 not been
displayed in any edition fron 1985 to 1992. In the 1984 editiafl,
the then-correct control nu er (2000-0264) waS displayed at the
end of § 61.146, 61.148 and 61.155. 01 changed the control
n .ambOr from 2000—0264 to 2060—0101 on October 29, 1984. Control
number 2000-0264 has continued to be displayed at the end of
-------
US/2 / 7 I’liU 17:17 FA! 202 564 0068 STATlONAI’ Y SUURCH t i012
8
var ous sections in the l98 tO 1992 itioxis. No control
at all was displayed in the 1982 and 1983 editions.
Tederal Rec ist er Di.st 1ay
The current control number (2060-0101) was first d.tsplayed
on August 25, 1986 (52. F 30267), in a notice of 0MB approval.
The previous control number (2000—3264) was first displayed on
July 13, 1983 (48 YR 32126), in a notice of propo5ed rule.
gj torieal i MB A vvOVal
08/01/82 — 08/06/82 6 days
11/01/15 — 08/il/U 284 days
11/01/88 — 04/27/89 2.78 days
07/01/92. — 08/14/91* 45 days
* This lapse only for additional infor atien require ents
added by 1990 a end ents.
22. NE8 ) 8UBPAB T 0KB Control No. 2O60 O068
C.,LLR. Dis 1a j
The correct number (2060—0068) was first displayed in the
1984 edition (the first edition that pu 1ished this rule) at the
end of § 61.246. The 1985 to 1992 editions also contain this
display. Note that an iricor ect number appears at the end of
§ 61.247.
T deral e ist.er Disp].
First displayed on ‘une 6, 1984 (49 FR 23519), in text of
the final rule.
Histoical Lapses iriOMB A t,tCVal
-08/01/87— 09/16/87 _47 days
10/01/89 — 12/12/90 438 days
23. NE8 P B22T w 0KB Control NO. 2060-0191
C F.R. D1s$ay
pirct displayed in the 1990 edition (the first edition that
published this rule) at the end of § 61.254. Same display in
2 .991 and 1992 editions.
dera1 Registar Dis 1av
Fir5t di p1ayod on ece bor is, 1959 (54 FR 51654), in text
of the final rule.
-------
1 11W 17:17 AA 5 UUb8 S’1A11UNAR SUUKUi
9
Ii -stor1.cal Lapses i.rLOMB .Ar0 a J
3.2/01/92 — 02/22/93 84 days
34. )TES 1 S BP)B ! Y o Control NO, 2060—02 .85
Die 1a
The correct 0t9 control number (2060—0195) was first
displayed in the 1990 edition (the first edition that publiBbed
this rule) at the and of H 61.274, 6l.27S and 61276. sane
display in 1991 and 1992 editions.
e 3e a1 Req ister Display
First displayed on september 14, 1989 (54 FR 38077), in the
text of the Zinal rule.
h15 Or1ca1 i s in PMZ A pt.ov al
04/01/93 — present
25. NBR/PBD* O) control No. 2060-0003
*Includes 40 CYR Part 51, Su.tpart I, and 52.21 fron tha
u3.ti-sedia nano.
Dis’ ].a3
First displayed in the 1989 edition, at the end of S 51.166
in Part 51, Subpart I, and at the Grid of 5 52.21 in i’art 52,
Su pa t A. Sane display in 1990 to 1992 editions.
P.ed a1 Recti t r Dis 1ay
0MB control numb x 2060-0003 was displayed en ugust 19,
2.985 (50 FR 33411), in the first Federal Register notice of 0MB
pprova1 for the ao bined N5 /PSfl ! under this control nwther.
Historical Lapee iri OX! A’oprovaL
03/01/04 — 07/26/85 for NS
02/01/85 07/2 /85 for PSD
08/01/92 — 08/10/92 for $B/PSD
-------
A
-------
08/28/97 THU 17:18 FAX 202 564 0068
STATIONARY SOL’RCH
UNITED STATES ENVIRONMENTAL PRQTECflON AGENCY
WASHINGTON, D.C. 20460
I JO14
/
“ OCT 29 !993
FncEoF
y. ?LMq474Q N VAWAT
5
Office
g Revi*W
Air Act
!.
of Regli1atO ’y1 k ge 1eflt and
Evaluation
athie A. Stein
Enforcement Counsel. for Air
Off ic* of Enfor emGnt
Wo have completed the review f all information collection
jrequests ( IC , ) asscciat d with Clean Air Act st tionary source
reg 1ati hc, relating to Office of Manã ment and Budget (0MB)
I clé iñ Bunder the Papervor3c Reduction Act (PRA) and display of
ho 0MB Control )u .r. The attachment to this emorandun gives
the information you requested for all Phase III regulations that
originated in the Off ice of Air Quality Planning and Standards
(OAQPS).
The infor aticn provided includes the date of display of the
0MB Control Nu iber in the Cods of Federal Reg .ilations and the
Federal Register, lapses in clearance, and partial clearances.
Along vjth the information on Phaee ! and Phase IT stationary
source regulations previously provided in y tezoranda of ay 7,
1993, and . u3.y 7, 1993, thie completes the PRA c n plianc. reviav
of all OAQPS’ regulations.
Attacb ent
cc: Torn Eagles
1l SY4 p,
w)
i7 ( NdtCd
v’GIYBJBC?Z
Clean
v PRox:
TO!
Pw—,p . .ci.cj4 P
-------
08/28/97 THU 17:18 FAX 202 564 0068 JA hsvnnn&
pass Ifl PSA ZAPS! ANALYSIS — OAQPO’ flSGULtflONfl
40 OR PAR? 53 SUBPART Q (flDB) C i a Cottrot No. 2060e0080
EPA I fl No. 0916
CY R fl sPD !
2.993
! !!it&1rRtflttSt’ Di nity
06/03/85 (50 FR 73359)
fliatorlttl Zapsi&iA,O$B ADpV*va1
07/01/83 — 10/20/83 112 days
02/01/90 — 07/03/90 153 days
40 OR PART 52. SCBflRT Q (CtS) ww control Nø. 2060-4096
EPA I R No. 0101
fl Display
• Not in CER
Pedez s1 Rsgister bin1a
12/03/86 (52. FR 43662)
gjjtoriea l Ltpses in _ Ce Appt V*1
• 12/01/81 — 03/15/82 105 days
05/01/83 — 05)13/83 13 days
07/01/83 — 10/20/83 112 days
02/01/87 — 02/19/87 19 days
06/01/90 — 07/02/90 32 days
10/01 ,93 — 10 119/93 19 days
io CPU fl2.711. a Chiesqo PIP 0MB Control No. 2060—0303
EPA I R No. 1565
cfl P S - P J ’ !
1993
! .4.n l fl.gjstey misplay
05/26/93 (58 PR 30165)
ttoriaa li€aps.s in OX! Aporova l ,
02/01/93 a 05/19/93 108 days
io e lk win 55 CX ! Control NO. 2010—0249
EPA IQ NO. 1601
aa Dinltj
1993
! ,d.rat Pegbtsr fliselti
09/04/92 (57 FR 40806)
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08/28/97 TilT] 17:19 FAX 202 564 0068
STATIONARY SOURCH
I j016
PEIBE II PRA LAPSE AJ)IYSXS - OAQPS’ RE ULATZO)l9
! istoriç.aLLaDSeS i! 0MB pprov&1
NO 1ap3e5.
40 CTR PART SI
Cfl Dti 1av
1.993
ye&sral Reqi,4 r Di ii1a
05/06/85 (50 PR 1.9086)
Nistor. [ cai. La SJS in 0MB Ap rov*1
04/01/83 — 06/09/83 70 days
09/01/83 — 1.0/22/83 52 days
1.2/01/90 — 05/23/91. 17 & d y5
40 CPR PART 60 (NSPB) 8UBPART
0MB Cont ø]. No. 2060-0084
EPA I R NO. 0940
0MB ContrOl No. 2060—0026
EPA I R No. 1052
cy : bis 1aV
1.993
! i.tori ca1.
01/01/84 —
01/10/85 —
08/01/88 —
09/01/93 —
1 .993
04/05/84
07/25/85
08/07/90
09/09/93
Ap roval
96 ‘days
206 days
737 days
9 days
R.ai5terDi3t’l1
08/1.1/86 (51 PR 28756)
Historical La s. in 0)
02/01/85 — 07/22/86
08/01/89 09/05/90
40 CPR PART 60 (MOPS) 8UBPA&T 3
ADDroVa1
537 days
401 days
0MB Control NO. 2900-0040
EPA ICR No. 1051
1993
paderal Re ist&r flisP1.a7
08/19/85 (50 FR 33411)
40 CPR PART 60 (NIPS) 5UBPAR Da
0MB control No. 2060-0023
PA ICR No. 10 3
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08/28/97 ThU 17:19 FAX 202 564 0088 STATIONARy SOURCft
P B! UI PRA LAPS3 ANALYBIB — C QP8’ R2GULATIONB 3
Psd.r*1 R.gi.Lt.er ie 1t7
08/3.9/85 (50 FR 3343.1)
E4ttoriaal Lapi.s in 0) ). o va3 .
04/01/85 — 07/25/85 13.6 days
08/03./88 12/16/B8 3.38 days
01/01/92 — 04/22/92 13.3 days
40 CPR PART 60 (NBPB) BtTDPJR!r 3* - ONE Control NO. 2060 —0210
EPA I R No. 15Q6
C pi D,.3 1V
2.993
! ! m? 1 i t _ pi,D1a !
03/3.7/93 (58 FR 2.4397)
toriea1Laps.s in 0 )43 ADpr w ] ,
05/01/93 — 05/20/93 20 days
40 CP PAR? 60 (N9PS) 8 BPAR? G ONE Cøntrol  0 . 2060—0019
EPA I R No. 1056
PR Djs 1py
3.993
Pe4o a1 Roqi5t.r DI*D1 y
06/03/86 (51. FR 19894)
iste i a1L ps.s i. ONE _ ADPrO!51 .
Q /01/83 — 05/09/96 435 days
09/01/85 — 09/16/88 16 days
1 .0/03./91 — 12/22/91 73 dayS
40 P* pith 60 (2IUPB) 3P .RT 0143 Control NO. 2060—0041
EPA ICR No. 2057
CPR Dis ai
1.993
d ra1 1I.cU te bi3p1a’ r
2.2/03/86 (53. FR 43662)
D ro *1
02/01/95 — 2.2/16/05 31 days
07/01/86 3.0/17/86 109 days
Q2/Q1/90 06/12/90 132 days
-------
08/28/97 THU 17:20 FAX 202 564 0068 S’1ATIUNAR SUUR H
IQ1s
ITI PU LAPSE IALYHg OAQP$’ RELM’ o p 4
40 Cfl PART 60 (NSPS) SUBPART L 0MB Control No. 2060-0050
EPA I R No. 112b-
r1
1993
P144rp1 R’ ist.r bts D1&y
01/03/85 (50 PR 343) -
Eistoricai Lana., in
01/01/ga — 01/12/88 12 days
40 CPR PART 60 (Naps) 8 BPART K 0KB Control No. 2Q60—O lo
EPA I R No. 1604
1993
r.4eral Ragists pjani.v
02/11/85 (50 FR 5671)
Hi torjca aps., in 0MB
— 12/15/57 15 days
04/01/91 — 09/09/91 162 days
40 CPR PART 60 (NOPS) BUBPARTS N, Na 0MB Co tro1 No. 2060-0039
EPA ICR No. 1069
1986
P.ederal Reg iatj’ Di p1a !
01/02/86 (51 PR 130)
Ii3torieIL______________________
07/01/85 12/11/85 164 days
01/01/99 — 09/29/59 271. da
10/01/92 — 12/14/92 75 days
40 CPR PART 60 (NRB) 0MB Cont o1 No. 2060—0037
8O 3PART8 ?, U, I, W, I EPA I R No. 1061
CPR t 1ay
1993
7.d.t a ri.t.p P p 1 jr
08/19J83 (50 FR 33411)
! istorieal in
05/02./eS — 07125/85 86 d4ys
08/01/89 — 11/17/59 109 dat,
12/01/91 — 06/22/92 205 days
-------
08/28/97 THU 17:20 FAX 202 564 0068
STA1’IUNAI SUUICCH
WJUi
P 8E X I I PRA LAPSE 11 ALYBX8 — OAQPS’ REGULATXONB
5
Partial
The requirement to record daily the amount of stored P 2 o 5 is
not approved.
40 CT2 PA2T 60 (NOPS) SCEPART T
1993
0MB Co tro1 No. O600122
EPA ICR No. 1062
? e& r *1 P qk,t.r t j ri1ay
8/19J85 (50 FR 33411)
o ., 01/85
08 / 01/88
02/01/92
— 07/25/85
— 01/30/89
— 06/0 2 ./ 9 2
206 daye
183 days
121 dayc
40 CYR PART 80 (N8P8) CUEPARTS AX, ‘Ma
M 1992
A 1 a 1985
Ped.xa1 .gist.rDisp1a7
02/05/88 (Z3 FR 3444)
0) co t:et Nb. 2060—0035
EPA I R No. 1060
,tc rjcaL Lap$es in 0MB
10/01/86 — 10/13/87
12/01/85 — 11706/89
06/01/90 — 04/24/91.
378 days
342. days
328 days
40 1 PART 60 () 8PB) SUBPART BE

1986
lad.xal R•g ster Di 2 1a7
05/13/87 (52 FR 18021)
EistorieaLLa sss j 0MB App ov4 ,
03/01/87 — 04/15/87 46 days
08/01/90 — 08/17/90 1.7 days
09/01/93 — 09/09/93 9 days
40 E PART 60 (NSP8) SUBPART CC
0MB Co t OL No. 2060—0054
EPA t No. 1131
C R D i p1;y
3istoric 1 Laps.s . M3 _ J 1
0MB Control No. 2060—0021
EPA ic No. 2.055
1993
-------
08,28/97 TItU 17:21 FAA 2U2 5 4 U06S srAr1uNAK SOUR(.U I JU U
P BE ZI PRA L PB! ANILYIZI — O*QP8 REL TIo$a 6
jd.ra1 Ragi t i 1av
05/3 .3/07 (52 FR. 18021)
03/01/97 — 04/15/87 46 days
00/01/90 — 08/17/90 17 days
40 C7R P T 60 (NaPs) 8 3PA.RT r i o — oxn Control We. 2060—0082
EPA ICR We. 1130
1993
lpd.ral Ragist.r DtIp) ..
01/03/85 (50 PR 343)
! i3torical L5p3.3 in 0) A ,pro a
01/01/88 — 01/12/88 12day
40 CPR PART 60 (NSPB) SU3PA.RT ZE 0MB Control No. 060—o2 .os
• EPA ICR Ho. 0649
cPR Di pl,ay
1991
Pedez a1 Re i.ter 0ispl.
04/14/86 (51. FR 12643)
E i o rica 1. _ La ses in O fl DDrova1
11/01/85 — 03/15/86 135 days
11/01/92 — 04/21/93 1.72 days
40 CPR PAR? 60 ( 8PB) 8 BPART G 0MB Control. No 2060-0021
EPA ICR Ho. 107 ].
CYR Disnlav•
1993
ed.ra1 R. ist.r Di 1av
06/03/86 (53. FR 19894)
Etiterteal Lan.. . in O) rovpj
11/01/85 — 05/09/86 3.90 days
08/01/88 — 09/02/88 33 days
40 Cfl PART 60 (N8PB) 81 8P1R? EN 0MB Control. No. 2060—0013
EPA ICR No. 1167
C bisn lay
1985-1988, 1993 MOTE: The correct 0MB Control Nu.n r
was dropped fr the 1989-1992 edition..
-------
U / *f I1 IIIU .L( i FAA b4 UUL1
S1AI1UNAI SUIIkCCII
I O21
02/1.1/85 (50 FR 5671)
12/02/87 — 02/19/58
06/01/91 05/10/92
40 fl PM 60 ($BPB) DPART
O1 Control No. 2O 5Q—0Q .4
EPA ICR No. 0982
OM Control No. 2040—0034
EPA ICR Nc. 1064
O) CQ trQl Z(Q. 2060-01.11
EPA IcR No. 1078
7&d4ral Rigist. Display
04/14/86 (51 FR 1.2643)
7
PK1 ! X I I PR& LAP Z JI LY8IB O QP6’
Pad.ra1 Rs Lst.r pisplay
05/13/87 (52 PR 18021.)
.
listoriesi Laps.s L 0MB
pprova1
No lapseo.
40
CIR PM? 60 (NBPB) SUBPaRT LL
CPR’bii 1 y
i as
P sd.r 1 R ist.
Di!p1av
08/04/86 (51 PR 27912)
Eistor’jcal Lapse, in
O p rov
08/01/89 — 12/29/99 151. days
40
CPR PART 60 (NSPS) av8 awr NX
R Dis 1p’
1992. -
Fe ara1 Register
bis 1ky
01/06/86 (51 FR 444)
B stericai La.p8e3 in_OMB
Appro
— 2.2/13/05 1.96 days
10
CPR PAR? 60 (NaPa) I DPA T N
CPR Dip tav
199-3
01 days
345 days
QQ
CP i ap p,
1993
O)th Control No. 204 —01o3
EPA zca No. 0657
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08/28/97 THU 17:21 FAX 202 564 0068
STATIONARY SOURCI4
I J IJZZ
PEASE III Uk LAPW AZ AL 8I8 OAQP8’ ZG LATZoNg
Ki torica1 La 3s! in OflBApprova2 .
3 ,1/01,85 - 03/15/86 135 days
04/01/89 — 06/21/8 82 days
07/01/92 —08/3.8/92 49 days
40 CY’R PART 60 (NSPB) SUBPART U
çP
1985
y _ sdsral _ R*aLltsV Display
04/14/86 (51. FR 12643)
4 .4it 4 ‘.a1 4n
1
3 ,2.,’0l/85 — 03/2 .5/86
40 CPA PART 60 (lISPS) SUBPART
135 days
88
0MB Control lb. 2060-0108
EPA I R No. 0659
Ps,dera3. e i t.r Display
05/09/86 (51 FR 17230)
. orieai La is ii fl) i
11/01/85 — 04J 5/86
40 CPA PART 60 (11BPS) SUBPART
1992.
yaderal _ Rapist.r DisD
05/09/86 (51 FP. 17230)
Hi&torieal La .!i.
11/01/85 — 04/24/86
40 CPA PART 60 (lISPS) SUBPART
I .
:_
--.
aPR p4 .sp1a c
1993
Ysderal Raclistar Lupl&y
04/14/86 (51 FR 12643)
8
0113 Control Wa. 2060—0004
EPA ICR NO. 0658
evi tsplay
1992.
Appx.p ! IL
176
days
0MB Control No. 2060—01.07
EPA ICR 0. 0660
0113 ControL No. 2060—0002
EPA ica No. 0661
Approval
175 days
-------
U / / I itiu ii:T i r o’& uuoo tiiuruu uL’zwn
1SB XX! PRA LAPS! MThLYSIa — OAQPI’ RZGULATXO 5 9
Historical Lap saija .0)CR _ Approva] .
11/01/85 03/15/86 235 days
04/01/89 — 06/29/89 90 days
40 CYR P11? 60 (NBPS) SUBPART AlA 0) Central No. 2060 —0161
EPA I 1 No. 117
m isD lay
1993
1t&tril Register Dis1 a
02/26/88 (53 FR 5860)
Ristorica1Lap .s i 0) A rova1
05/01/91 0R/O7/92. 99 days
Part i
The requirements for quality assurance emission testing and
recordkeeping are not approves.
40 CPR P121 SO (NSPR) IP1 PPB 0X Control No. 206Q-Q .$(
EPA ICR No. 1158
CYR Dis .ay
1988
! 4! !1 R. ist.r bLspl*y
09/15/87 (52 FR 34868)
Ri tQi 5.LLap .I in _ OX Approval
04/01/9 — 07/10/92 101 days
Partial Cl.siaae
The requirements for nonthly performance testing and
oc ted reaox dkoeping ax d teportin re not vsii.
These requirements are only approved on a se iannua1 basis.
40 CPR PAl? 60 (NSPS) BU3PJRT DD 0X3 Co tro]. No. 2060—014S
EPA I C R No. l1 0
çvR .sp1ay
1993
7 ed.ra3. _ R.gist.r Display
06/21/90 (55 P 25454)
icp i in 0)43 Appra’ a]
No lapses.
-------
U / / I( mU ii: r A O’ UUOO 1LtLLUL 1tI 1 UL’LW fl I JU l
PBAB! IXI PU LAPB! M(ILY88 — OAQPO’ ZG LATXQNg 10
40 CPR PART 60 (NBP8) 8UBPART flY 0MB Ccntrol No. 2060—0073
PA rc W . 13.57
PLR jip1ay
1985
F•di ra1 fljg i1 y
07/21/87 (52 PR 27452)
K.( torici1Lap • i flWB ).p ?ev ]
10/01/87 — 10/02/87 2 days
02/01/91 — 05/23/91 12.2 days
40 CPR PAR? 60 (NBPB) SUBPART G G 0MB Control No. 2@d0-0067
EPA ICR No. 0983
çzR pj ap i. *v
1993
2.q . *t*?Di#p1o
08/2.0/87 (52 PR 29564)
Ei totica1 Lapses in 0143 App Qv4
06/01/87 — 07/23/87 53 days
40 crE PART 60 (NOPO) 0 DPM? 0MB Control NQ 2969—0059
EPA I R No. 2.2.56
CPR Displey
1985
Y.d.ral R.gistsz Di3p1 y
05/2.3/87 (52 FR 2.8021)
Kiitorical i _ Oj pprov8] .
03/01/87 — 04/21/87 52 days
40 C Ia PART 60 (NSPB) • PAZT l IZ O D Cont g1 No. 2060—0197
EPA X R No. 0998
1993
7.d Itegj t.r _ Di 5p1 ay
09/13/90 (55 FR 37756)
Eistorieal. taD9s9 in 0MB o rova1
o lapses.
-------
uoi i i mu i : r t Z D4 uuo
1 t1iUP IU . UL’LV fl
I J UL )
PHIBZ T!X PR LAP9Z A L Xa - OAQPS’ RZGVZATZQ)ju 12.
40 CYR PART 60 LCP9) 8DflPAZ%T JJ 01 CO tro1 No. 2060—0079
EPA ICR No. 0997
CTR Display
1985
PdaraLR.!j,j .r Di8 2. y
02/05/88 (53 FR 3444)
Historical. LjsaJ o 1 reva2
10/01/87 — 2.0/06/87 6 days
2.1/01/90 — 12/10/90 40 day*
40 CYR PART 60 (NCPS) 8 EPART8 XXX, LLL 0MB Control. No. 206O .uo o
EPA XcR No. 1086
1985 for 1Q
1986 tor LLL
Pedira], Re jjter Disp
06/24/85. (50 FR 26122) for 2C3 K
07/22/85 (50 FR 29757) for LLL
Nistoric&1 LapJ•3 in 0MB_A Drova1
07/01/88 — 04/12/90 652. days
40
CPR PART 60 (N8PS) SUBPART PPP
C Dis 1 y
1993
Ped.r a1 Repi&t.r Diapj.
04/15/85 (50 FR 14755)
Nislorical La; .s i _0X3 7 revp1
02/01/87 — 06/12/87 2.32 days
10/01/90 05/23/91 235 days
40
dR PAZ! 60 (NSPS) SUBPART QQQ
CPR Dii 1ay
1989
7e era1 Rig t.rpieilay
11/23/83 (53 FR 47616)
Historical Lap .*a..in OMBAp ova1
12/01/92. — 01/14/92 45 days
0MB Co tro1 No. 2060.0114
EPA I cR No. 1160
01 Control No. 2060—0172
EPA No, 1136
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IJ / I $I 1±11’ ii: FAA U4 UU 1A11UNAKX bU1IK( li t JU26
PEAS! III PM LAPS! A !P .LYBZU — OAQP8’ REOVLATIoNS 3.2
40 CT! PtRT 60 (N3P8) 8U3PA T 888 ONB Control No. 2060-03.73.
EPA R No. 3.135
3.989
Yedarpl RI iitarDjipjp’
10/03/88 (53 FR 30892)
NiLtD. riei1 _ Laps.. in ON 2 r va1
NO lapses.
40 Cfl PART 10 ( SP8) 8 BPUT TTT C Control No. 2060w0162
EPA ICR No. 3.093
CT! fli p1;y
1988
Ps.4•ral .gists pj.p1*v
01/29/85 (53 FR 2672)
istoriea1J .jp . i 010 App ovp1
05/01/91— 05/23/91 23 days
40 CT! PART 0 (N8P5) 8D3PAR O) Contr L No. 20 0—o352,
EPA I cR No. 0746
1993
Pedera3.R.gj,t. Di$o1$
02/09/93 (58 FR 7780)
K .storica1 Lap5Ig _ A vp1
No 1 p3.a.
40 CT! PART 69 (NDP8) C PART VVV O2 Co tx ] No. 2069—93.11
EPA I R Me. 1214
1990
.dgz 1 R iat.r Di lsi
09/11/89 (54 FR 37534)
Ri.torien1L*p ts in p App ova ]
Mo 1ap3S3.
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08/28/97 THU 17:23 FAA 202 §b4 U0b8 SIAIIUNAI(i bUU1U. fi WJU21
Pfl83 I n PU LAPS3 A2aLTsra - OAQPB’ RouraTtoNa
13
40 c i a PART 61 SUBPART C
C i a Di SD 1 6 V
1993
PsdnalRsgjat.r Difllt7
09/15/86 (52. FR 22681)
at.storieai taman in an
OXB Coflrol No. 2060—0092
EPA XtR N . Ol9
Partial O lprancs
The information required under 40 CFR 61.64 and 61.65
ralatjytq to repQrta Q all anua1 discharges and re usE
valve discharges within 1.0 days of their occurrenc, is not
approved.
40 C i a PART 61 SUBPART N
1987
redsraixegjst pj s a u l
08/04/55 (51 FR 27956)
0MB Control No. 2060—fl4$
EPA ICR No, lost
4
02/01/82 —
11/01/as — 08/21/86
187
294
days
09/01/88 — 12/16/88
1.07
days
days
01/01/92 — 05/04/93
125
days
40 C i a PART 61
e n P in lav
1993
Federa l Rsgjnt.r Display
07/10/sq (55 FR 28286)
0MB Coatro2. No. 2910e0071
EPA IQ No. 0186
E l stgrica 1
03/01/82 —
08/01/85 a
10/01/01 —
Lapses in 0MB lp provg
00/06/82 6 days
09/25/90 1,882 days
03/24/92 176 days
ttstoricai.
10/01/86
Lapses jppfl
2.1/03/86
Approval
34 days
02/01/90
—
06/14/90
134
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UQI Of)3i 1U1 iiT 4 tñA O’ UVOO 1t Lur ItXc VVA’ fl I JU O
P1DB! III ma LIPS! A I iii — 02QPe ‘.. P. 5,TJL&TzoxB 14-
40 cm PIE? ft OI Co trQ2. NO. 2060—Olg a
EPA I c R No. 1354
cm pi
1990
7d.pp aqf. t r Dil,2 j
03/07/90 (55 ER 8292) -
Hi .j9ri ca3 L ap cB p provq
01/01/93 — 0 ] ./22/9 22 days
61 OU!PAZT n 0X3 Control. No. 20400253
EPA ICR No. 354].
1990
7.d.r.1 !.gist.r Di pl.*y
03/07/90 (55 FR 8292)
Historieni Lapl.i i O1 I pr aI
07/01/93 — 08/10/93 41 days
40 cTI PA1T S3 BUSPMT D 01 Contro3 o. 3060 0222
EPA ICR No. 158
1993
Ze .ra1 R.ai!t.r Diw 1ay
12/29/92 (57 FR 61970)
Eia oyjp&j. Lapssp.in 01W* Drevpl
No lapses,
40 YR 70 ON! Control. No. 2060—0243
EPA I No. 1U7
C Di 1ay
1993
tod.zal _ R. tstitDj ipi ay
12/04/92 (57 PP. 57347)
Listorteal Lapsas _ in ON! ApDrov*1
No laps.s.
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ti “ — V
UO/hQfUI Int l 1t. ’e rAtS UL OQ’e UUUO SflZLVL ’Ltfl1
Pflfl I I I PAt LAPSE AflLtSIB — OAQPB’ REGULATIONs 1 !
40 Cfl PM? 749 SflPAST D 01(3 Control No. 2060e0 193
EPA ICR No. 1420
1993
7fl .rfl Rniste; Di jay
01103/90 (55 PR 233)
Riflort c a l. Lapns tnpxz vrov 1
01/01/93 05/24/Ga 144 days
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