&EPA
GOOD PRACTICES MANUAL
FOR DELEGATION OF
NSPS AND NESHAPS
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GOOD FOR
OF NSPS AND
U. S. PROTECTION AGENCY
OFFICE OF AIR QUALITY AND
TRIANGLE PARK, NORTH CAROLINA 27711
February 1983
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CONTENTS
1. Introduction • 1
2. Statement on NSPS and NESHAP Delegation 2
— s»
3. 'Background 3
3.1 Standards of performance for new stationary sources 4
3.2 National emission standards for hazardous air
pollutants 5
3.3 Authority for delegation ,- 5
.v
4. Requirements for Transfer of Authority 6
4,1 Emission limits consistent with Federal regulations 7
4,2 Test methods consistent with Federal regulations 7
4.3 Reporting and monitoring requirements 7
4,4 Enforcement against noncomplying sources 7
4.5 Waiver procedures 8
4.6 Surveillance 8
4.7 Public notification and disclosure of information 8
4.8 Resources 9
4.9 Reporting (to EPA) 9
5. Mechanics of Delegation 11
5.1 Program assumption 11
5.2 Local program delegation 15
5.3 Questions and answers concerning delegation 16
Appendix A New Source Performance Standards -
November 15, 1982 17
Appendix B National Emission Standards for Hazardous Air
Pollutants - November 15, 1982 23
Appendix C Examples of Regional Office Correspondence and
Submittals 25
Appendix D Questions and answers concerning delegation 39
n
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SECTION 1
INTRODUCTION
The Clean Air Act, as amended, requires under Section 111 that perform-
ance standards be set for source categories which in the judgement of the
Administrator cause or contribute significantly to air pollution. Section 112
requires that emission standards be established for hazardous air pollutants.
Sections 111 and 112 also provide the Administrator of.the Environmental Pro-
tection Agency (EPA) with the authority to delegate to State agencies the
implementation and enforcement of both these "standards.
This guideline provides some recommendations on the items a Regional
Office (RO) should consider in evaluating a State's request for delegation.
The specific documentation necessary for a RO to demonstrate that a State
agency is ready and able to assume the authority for the program will vary
and depend on the past relationship between the MO and State agency. This
guideline also discusses the mechanisms used in the past by some RO's and
provides a series of sample letters and Federal^ Rejirte'r notices. This
guideline incorporates and updates the guidance with respect to New Source
Performance Standards (NSPS) and National Emission Standards for Hazardous
Air Pollutants (NESHAPS) in the 1973 Division of Stationary Source Enforce-
ment (DSSE) Guideline $-13—Delegation of Authority to the States - NSPS and
NESHAPS and portions of the Office of Air Quality Planning Standards (OAQPS)
Guideline 1.2-045 dealing with NSPS and NESHAPS delegation.
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SECTION 2
STATEMENT ON NSPS AND NESHAP DELEGATION
The Clean Air Act precisely states that the States should have the
primary authority for implementing the NSPS and the NESHAPS programs. The
Clean Air Act very few conditions on the transfer of this authority (see
*m» •**$
Section 3,3). The transfer of this authority or "delegation" of these pro-
grams can and should be a simple and flexible process because for each NSPS
and NESHAPS there exists an unambiguous, enforceable Federal emission regula-
tion that is both legally binding on a source and ultimately enforceable by
EPA. The transfer of NSPS and NESHAPS authority, to a State in no way precludes
EPA from-enforcing NSPS or NESHAPS in Federal court should the State fail or
be unable to pursue legal action in their own State court system.
Therefore, delegation of NSPS and NESHAPS should be viewed as EPA trans-
ferring to the State agency the primary authority for implementing these
programs. This transfer can include the entire program, individual standards,
or portions of individual standards." The criteria to be used by the EPA RO's
in determining when they should transfer these programs are flexible. The
major requirement is that the State must affirm their intent to implement and
enforce the programs and show that they are able to do so both legally and
programmatically. The specific documentation necessary for a RO to convince
itself that the State is ready and able to assume the responsibility for the
program will vary and depend on the past relationship between the RO and the
State. Each RO will review their delegation decisions periodically through
program audits. To avoid ambiguity and confusion, EPA will publish a notice
in the £edg.r*l. Register indicating the standards for which the State has been
delegated authority.
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SECTION 3
BACKGROUND
On August 17, 1972, under EPA Order 1150.18, the Administrator delegated
to the Regional Administrators responsibility for approving State procedures
for, Implementing and enforcing NSPS and MESHAPS and for delegating authority
to the States to implement and enforce NSPS and NESHAPS. In 1973, DSSE
issued Guideline S-13—Delegation of Authority to the States - NSPS and
NESHAPS. This guideline provided information to the Regional Administrators
on the requirements for approval of State requests for delegation of authority,
This guideline established agency policy on delegation and provided a sample
cover letter and sample Federal Register notice to facilitate the delegation
of programs. The guideline indicated that it was the Agency's policy
to encourage and facilitate requests for delegation to the maximum extent per-
missible under the Clean Air Act. The RO personnel were encouraged to work
closely with their States to develop adequate delegation procedures. It was
the Agency's intent in issuing the guideline to allow the States to implement
and enforce the NSPS and NESHAPS in whatever manner they considered the most
effective, as long as the procedures were appropriately designed to assure
compliance and the procedures were consistent with the Act and the associated
NSPS and NESHAPS regulations.
In March of 1976, OAQPS issued Guideline 1,2-045 on delegation of new
source review authority to State and local agencies. The main purpose of this
guideline was to set forth procedures for delegation of authority to enforce
EPA regulations for the review of new and modified sources. The new source
review regulations subject to delegation included those promulgated to imple-
ment Sections 110, 111, and 112 of the Clean Air Act, as amended. This guide-
line incorporated the S-13 guideline and made some additional modification to
the policies and procedures set forth in S-13, These included the ability to
delegate directly to the local agencies if the State did not accept delegation
and the development of "automatic" delegation of authority to avoid the
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requirement for States to request new delegation of authority each time new
NSPS (or NESHAPS) were issued.
OAQPS Guideline 1.2-045 also stated that it was EPA's policy to encourage
State agencies to request and accept delegation because it would: (1) relieve
EPA of the resource requirements for enforcing the MSPS and NESHAP.S require-
ments, (2) avoid duplication of effort in many cases, and (3) put enforcement
in the hands of the States where the Clean Air Act intended it to be. Thus,
the delegation of the NSPS and NESHAPS programs has and continues to be
a priority item in EPA's program plans and it is the Agency's goal to delegate
thez*NSPS and NESHAPS programs to all the States as soon as possible.
There are no regulations defining whether a submitted State procedure
should be considered adequate for the purpose of delegation of NSPS or NESHAPS.
Approval of a State's NSPS or NESHAPS procedures should be based on an evalu-
ation of the State's ability to implement and -enforce the NSPS and NESHAPS
'-a-
programs. Flexibility is the key to delegation.
3.1 STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES
Section 111 of the Act, "Standards of Performance of New Stationary
Sources," requires EPA to establish Federal emission standards for source
categories which cause or contribute significantly to air pollution. These
standards, established for both new and modified stationary sources, reflect
the degree of emission reduction achievable through the application of the
best system of continuous emission reduction which* taking into account the
cost of achieving such reduction and any nonair quality, healths and environ-
mental impact and energy requirements, the Administrator has determined to
be adequately demonstrated. Since December 23, 1971, the Administrator has
promulgated a number of NSPS regulations (40 CFR 60) pursuant to Section 111
(see Appendix A). Both the pollutants regulated and their associated emission
limits vary for each NSPS promulgated and include particulate matter (PM),
sulfur dioxide (S07), carbon monoxide (CO), nitrogen oxides (N0y), volatile
&> * A
organic compounds (VOC)» acid mist, total reduced sulfur (TRS), and fluorides
(F).
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3,2 NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
Section 112 of the Act, "National Emission Standards for Hazardous Air
Pollutants," requires EPA to establish Federal emission standards for non-
criteria air pollutants which in the judgment of the Administrator cause or
contribute to air pollution which may reasonably be anticipated to result in
an increase in mortality or an increase in serious irreversible! or incapaci-
tating reversible, illness. These standards apply to new, modified, and
existing sources and are set at levels to protect public heilth with an ample
margin of safety.
On April 6, 1973, the Administrator promulgated the first NESHAPS regu-
lations (40 CFR Part 61) pursuant to Section 112 for regulating asbestos,
beryllium, and mercury. On October 26» 1976, the Administrator promulgated a
national emission standard for vinyl chloride. . To date, these standards
regulate emissions from 20 source categories (see Appendix B).
3.3 AUTHORITY FOR DELEGATION
The authority for delegation, for both the implementation and enforcement
of NSPS and NESHAPS is contained in lll(c) and 112(d), respectively, of the
Clean Air Act.
Section lll(c) of the Clean Air Act, as amendedf provides that:
"(1) Each State may develop and submit to the Administrator a
procedure for implementing and enforcing standards of performance -
for new sources luv-wsd in such State, If the Administ. stor finds
the State procedure is adequate, he shall delegate to such State
any authority he has under this Act to implement and enforce such
standards,"
Section 112(d) of the Act provides that:
!l(d)(l) Etch State may develop and suteit to the Administrator
a procedure for implementing and enforcing emission standards for
hazardous air pollutants for stationary sources located in 'such
State. If the Administrator finds "the State procedure 1s ade-
quate, he shall delegate to such State any authority he has under
this Act to implement and enforce such standards."
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SECTION 4
REQUIREMENTS FOR TRANSFER OF AUTHORITY
In order to delegate its authority, EPA must make a finding that the
State's procedures for implementing and enforcing NSPS and NESHAPS are ade-
quate. While delegation is a serious legal responsibility, the Agency,
nonetheless, should adopt a flexible approach in evaluating delegation requests,
For example* EPA should not demand that the program be administered in pre-
cisely the same way in each State, nor should EPA necessarily insist that the
States use the same procedures that EPA would use. Rather, the focus should
be on environmental results and the potential--for each State's program to.
work.
The nine elements listed below must be considered in order to support a
finding that a State agency can indeed implement and enforce the NSPS and
NESHAPS programs effectively. These program elenents need not be discussed
in exhaustive detail in a State's request for delegation. In many cases a
reference to the specific regulation* legal authority, or procedure will be
sufficient evidence to enable the RO to substantiate the adequacy of the
State's program. This section discysses these elements and any associated
conditions that roust be considered by the RO in making a finding of adequacy.
These elements are:
o Emission limits consistent with Federal regulations
o Test methods consistent with Federal regulations
o Reporting and monitoring requirements
o Enforcenent
o Waivers (variance) procedures
o Surveillance
o Public notification and disclosure of information
• o Resources
o Reporting (to EPA)
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4.1 EHISSION LIMITS CONSISTENT WITH FEDERAL REGULATIONS
State regulations dealing with NSPS and NESHAPS must be consistent with
the Federal regulations as outlined in 40 CFR Parts 60 and 61. Emission limits
or standards must be at least as stringent as NSPS and NESHAPS, Inrounities
not granted by Federal regulations must not be granted by the State agency.
4.2 TEST METHODS CONSISTENT WITH /
The State must agree to use the published in 40 CFR 60 and
61 j>£ any equivalent or alternative test that has approved by
EPA. If a State agency has adopted its own test that they consider
to be equivalent to the methods in 40 CFR 60 and 61 or adequate for determining
compliance with the standards in 40 CFR 60 and 61, then theses methods nay be .
submitted to EPA for approval under the provisions of 40 CFR The EPA
methods roust be used until formal approval of the methods is issued by EPA.
To ensure uniformity and technical quality in the enforcement of national
-standardsf EPA will not delegate the authority for approving any equivalent
or alternative test methods. In some cases, a State agency may find that
design or operating conditions at a given site may preclude the use of the
exact procedures set forth in 40 CFR 60 and 61. In these cases the State may
need to make some modifications to the procedures on a case-by-case basis in
order to. conduct the required test. EPA may delegate the provisions in
40 CFR 60.8{b)(l) and (f) where some adjustment in the test method procedure
is warranted.
4,3 REPORTING AND MONITORING
State agencies should have a mechanism to implement the reporting and
monitoring retirements set forth in the NSPS and NESHAPS. In many cases,
the States ha¥€ adequate reporting procedures, and these should be used wher-
ever possible to avoid duplicating reporting requirements for NSPS and NESHAPS.
4,4 ENFORCEMENT AGAINST NONCOMPLYING SOURCES
The enforcement authority portion of the delegation must indicate that
the agency has the authority to enforce NSPS and NESHAPS in its State court
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system. The agency should also have the authority to levy penalties and seek
injunctive relief. Because of the wide variation in State laws, the RO's are
encouraged to work closely with the States and their respective Attorneys
General in making their determination that the State agency has adequate
enforcement provisions.
4.5 WAIVER PROCEDURES
The NESHAPS program provides for waivers (variances) in the compliance
dates for meeting future standards. The authority to evaluate and grant
these waivers can be delegated to the State agency if enforcement and imple-
mentation procedures are adequate.
4.6 SURVEILLANCE
'* 5.T
The State procedure must, as a minimum, provide for monitoring, record-
keeping, and reporting as required by Federal regulations. Required reports
and notices from sources will be submitted to States to which authority has
been delegated. A notice of address change must be published 1n the Federal
Re£i_s_ter_. In addition, an adequate State procedure must include a field
investigation system for detecting violations and for conducting or observing
source emission tests. The State procedure may require sources to keep
records and make reports not required by Federal regulations. The RO must
make a finding concerning the adequacy of surveillance procedures and resources
before delegating the NSPS and NESHAPS programs. Upon delec-"* ., all results
of performance tests conducted by the affected sources and excess emission
reports completed by the affected sources should be submitted directly to the
delegated agency. Test results and excess emission reports should be filed
in such a way ts to be readily accessible for future reference.
4.7 PUBLIC NOTIFICATION AND DISCLOSURE OF INFORMATION
The Agency's request for delegation should provide for making all emis-
sion data as well as all other nonconfidential source information available
to the public. If State law does not allow for the disclosure of this infor-
mation, EPA may delegate Section 114 authority to a State along with the NSPS
or NESHAPS delegation. The Federal Register notice designating NSPS or
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NESHAPS transfer of authority should also include the delegation of Section
114 authority where applicable. If the State cannot accept Section 114
authority, the NSPS or NESHAPS transfer of authority can be conditioned upon
a cooperative effort between EPA and the State agency whereby the State can
release the information to EPA, and EPA can then release the information
requested by the public.
4.8 RESOURCES
To the extent that current State NSR regulations apply to the
soufces as the NSPS and NESHAPS regulations and that many of these State
regulations have similar regulatory requirements as the NSPS and NESHAPS,
there should be, in general, no additional resource burden as a result of the
delegation of NSPS or NESHAPS programs. The R0» however, must be assured
that there will be sufficient resources to^perfo'nu the required reviews and
to take the appropriate action necessary to implement and enforce NSPS and/or
NESHAPS.
In the past, resource-oriented problems were frequently noted as a main
reason for not accepting .delegation, and this problem can be expected in the
future. To ensure that adequate resources are available, it is appropriate
to condition a portion of a State's grant based on the acceptance of the NSPS
and NESHAPS programs. In addition to the direct grant mechanism, contractual
assistance can al'so be provided by EPAjon an as-needed basis to alleviate re-
source constraints. Contractual assistance can take the form of direct
resources to assist in such activities as '"''-Drying stack tests or indirect
resources in the form of workshops ind seminars to assist the State agency
in incorporating NSPS and NESHAPS requirements into their program. Workshops
can address artis such as procedural requirements, technical review and
permitting, ssn*¥iil lance, and implementation of specific standards,
4.9 REPORTING (TO EPA)
All State agencies receiving grant funds and delegated program authority
must currently report on the status of their funds or programs according to
a schedule established by the RO's. The Federal regulations (40 CFR 51) re-
quire a quarterly report as a minimum, however, many States report to the RO
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on a monthly basis. Current reporting practices should be modified to include
NSPS and/or NESHAPS sources.
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SECTION 5
MECHANICS OF DELEGATION
The following is a brief discussion of the items that should be considered
with respect to delegating the NSPS and NESHAPS programs. Basic procedural
retirements for program assumption are presented in this section along with
various mechanisms that can be used to facilitate the delegation of future
standards, i.e., automatic delegation, adoption by reference, and use of per-
mit conditions. Also presented in this section is a discussion of delegation
to local agencies. In addition, Appendix C contains example correspondence
anc' fS^SESJL B§£l§!§JL notices for accomplishing a number of the actions
described in this chapter. These examples are provided to assist the States
and RO's in requesting and granting the delegation of NSPS and NESHAPS pro-
grams .
Examples are provided for the following:
o Letter notifying the State agency of delegation of NSPS and NESHAPS.
o Automatic delegation letter notifying the State agency of new
Federal standards.
o Letter notifying the State agency of delegation of new Federal
standards after the State requested deles?*4*" for* the new standards.
0 f£4££§L R§2i£ter notice for delegation of NSPS and NESHAPS to a
State agency.
0 ZMSJll BSilSML notice for supplemental delegation of NSPS and
ftESfiWPS" to a State agency published as an informational notice
(no- proposal necessary),
5.1 PROGRAM ASSUMPTION
Certain steps must be followed for a State to assume the NSPS and NESHAPS
programs. These steps are:
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1. The Governor of the State or his designee shall submit to the
appropriate Regional Administrator of the Environmental Protection
Agency a written request for delegation of authority pursuant to
Section lll(c) or 112(d) or both. The request must describe the
State procedure that will bt followed in implementing and enforcing
one or more NSPS or NESHAPS, Identify the State officers or agencies
responsible for carrying out the State procedure* and demonstrate
the adequacy of the State with respect to the "criteria
set forth in this statement of requirements,
2. The request may a delegation of authority to implement and
enforce any NSPS or NESHAPS which has been finally promulgated at
the time of the request. If automatic delegation is to be imple-
mented, see Section 5,1.2. The request should specify the source
categories for which delegation is sought and may be approved with
respect to one or more such categories and denied with respect to
others,
3. The Regional Administrator shall notify the Governor or his designee
in writing whether and to what the request has approved
or disapproved. If the request ds disapproved in whole or in part,
the notification to the Sovernor shall specify the reasons for sych
disapproval.
4. If the request is approved in whole or in part, the Regional
Administrator shall delegate to the Sovernor or his designee
authority to carry out the approved portions of the State procedure.
Such delegation shall be effective upon receipt by the Sovernor or
his designee of a written Notice of Delegation. The Notice of
Delegation shall identify the approved State procedure by reference
to the request and to any additional submission by the Sovernor or
his designee supplementing or modifying the State procedure and
shall specify which portions of the proposed State procedure, if
any, are disapproved. The Notice of Delegation will subsequently
be published in the Federal._ Retlster.
5. A delegation of authority pursuant to Section lll(c) or 112(d) shall
not authorize implementation and enforcement of NSPS or NESHAPS
according to a State procedure which is different from the approved
State procedure identified in the Notice of Delegation unless a
revised State procedure is submitted by the Sovernor or his designee
and approved by the Regional Administrator. Notice of the approval
of any revised State procedure will be published in the £ederaj_
Register. This provision applies only to the adequacy of State
procedures for implementing and enforcing Federal standards, and
is not meant to be in derogation of State authority pursuant to
Section 116.
6, As additional or are promulgated, EPA nay notify the
Governor or his designee of the new standards and their delegation
to the State or the State may submit additional requests for dele-
gation of authority in accordance with the foregoing procedure.
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5.1.1 Extent of De1eg_at1on
Although EPA encourages the State agencies to accept full delegation of
all aspects of the implementation and enforcement of NSPS and NESHAPS, there
are situations where States are either unwilling or unable to assume all
responsibility for implementing these programs. In these'cases, EPA may
grant partial delegations to requesting agencies indicating one of the
following:
...» 1. Delegation of authority way be given for only a portion of the
State or regulatory area.
2. Delegation of authority may be given for only the applicable
portion of the source categories Involved. Specific source cate-
gories or parts thereof might be omitted (e.g., NSPS for petroleum
refineries in Iowa, since no refineries are in Iowa,
Likewise, authority may be delegated for only certain facilities
covered by a particular standard (e.g.* States have not
accepted delegation of the demolition standard under the
NESHAP).
3. Authority may be delegated for selected of the procedural
responsibility in imp! ting with EPA acting .as a
partner in completing the remaining actions. For example, delega-
tion of authority can be provided with regard to the administrative/
technical portion of the Implementation, with EPA providing the
enforcement should action necessary. The administrative/
technical portion of the review includes reception of the soyrct's
request for approval and evaluation of that request. It may also
involve advising the source of the results of that evaluation. The
actual approval/disapproval action would be performed by the EPA
RO, Enforcement actions, including litigation* undt. t-.iese dele-
gations, would be initiated by EPA,
5.1.2 Automatic Delegation
Automatic delegation refers to a process where agencies assume responsi-
bility for the Implementation and enforcement of current and future NSPS and
NESHAPS. Without automatic delegation, a separate request for delegation is
needed every time a standard is promulgated. In order to promote the delegation
of the NSPS and NESHAPS programs to the State and local agencies, an automatic
delegation process was introduced to avoid individual requests for delegation
for each standard that would be promulgated. Automatic delegation simplifies
the role of the State agency in obtaining authority for newly promulgated
NSPS and NESHAPS.
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Automatic delegation is initially accomplished by State agencies request-
ing the authority to review and enforce all future.NSPS and NESHAPS standards.
A notice of automatic delegation is then issued in the federaj_ Rg2lj$ter_ when
new standards are developed. This notification delegates the standards to the
State based on the previous request for automatic delegation. This does not
require response by the State agency and if no negative declaration is received
from the State the delegation is final. The purpose of this Federal Register
notice is to inform the public that the delegation has taken place and to
indicate where the source notification and other reports should be sent. EPA
,. -*
will notify the State agencies of the promulgation of additional standards
through correspondence similar to that in Appendix C. .
5.1.3 Adop_11 on by Reference
One alternative for those States with ^problems in accepting automatic
delegation would be delegation by reference. Under this procedure, newly
promulgated NSPS and NESHAPS would be adopted directly into the State codes
by reference to the Federal law. This would considerably decrease the ad-
ministrative and economic burdens associated with major regulatory changes.
5.1.4 Use of Permit Conditions
A third approach to delegating the NSPS and NESHAPS programs is through
the use of permit conditions as part of a State agency's preconstraction and
operating permit program. This approach may be used where there are obstacles
to other types of delegation,
If a State or local agency has an approved preconstruction and operating
permit program, the State or local agency can impose the emission limits and
other requirements consistent with the NSPS or NESHAPS programs as a legally
enforceable permit condition* but only if the agency has the legal authority
to enforce those permit conditions. By imposing these requirements as a
permit conditions the State agency would not necessarily have to formally
adopt the NSPS or NESHAPS emission limits or requirements. They could,
however, impose the NSPS or NESHAPS requirements almost automatically after
they have been promulgated without any formal changes to their existing
permit programs.
To implement this type of delegation procedure, a State agency would
notify the RO of its intent to use their existing permit programs to ensure
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that the applicable NSPS or NESHAPS requirements were being implemented and
enforced. The State would indicate how they intended to impose the permit
conditions and how they would enforce the permit conditions if a source
failed to comply with these conditions. All other requirements for delegation
(i.e., consistent test methods, reporting, and monitoring, etc.) would have
to be satisfied as well.
5.1.5 ReguTatory_Revision,
In some areas neither automatic delegation nor delegation by reference
may^be available to a State agency because of legal or political constraints,
If the legal and procedural Issues cannot be resolved, additional NSPS and
NESHAPS source categories must be delegated on a case-by-case basis through
revisions to State regulations. This approach is the least desirable because
of the increased economic and administrative"requirements. If, on the other
hand, this is the only technique a State agency can use to assume responsi-
bility for newly promulgated NSPS and NESHAPS, the State should be encouraged
to seek delegation through the regulatory revision approach. If the State
chooses this approach, parallel processing can be used to process these
regulatory revisions to eliminate duplication of effort and decrease the
overall processing time for the.revision,
This technique for assuming responsibility of a newly promulgated MSPS
or NESHAPS entails submitting an additional delegation request for each new
NSPS or NESHAPS as well as incorporating the Federal regulations directly
into the State or local regulations.
5.2 LOCAL PROGRAM DELEGATION
Although Section 111 does not specifically authorize it, conwon practice
has been to delegate to local agencies where they are adequately qualified.
Three possible local agency delegation request mechanisms for NSPS and NESHAPS
exist: (1) a State agency can request delegation on behalf of a local agency,
(2) a local agency can request delegation directly with the written consent
of the State agency, and (3) a local agency can request delegation directly
without the consent of the State agency.
When a State has no objection to direct delegation to a .local agency, as
in the first two cases, there is little impediment to the delegation process.
1 C
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EPA retains the ultimate responsibility to implement and enforce the NSPS and
NESHAPS. Therefore, if a court rules that EPA lacks the authority to delegate
to a local agency, the local agency delegations can be revoked and EPA would
once again, have sole responsibility for the delegated programs,
The third case, where a State is opposed to EPA delegation to a local
agency* can potentially cause a problem with respect to EPA's ability to work
with an individual State, Because of the wording of Subsections lll(c) and
112(d), a State may raise the issue of EPA',s legal authority to delegate the
NSPS and NESHAPS programs to a local agency, the State's objections to hav-
ing a local agency accept the authority-'for delegation should be thoroughly
- I* .
investigated to determine if the objections have merit or if the delegation
would cause significant problems that would make the delegation inappropriate.
Because EPA's clear authority lies in delegation to the State, a State sub-
mittal (or proposed imminent subroittal) of a satisfactory request for delega-
•&*-
tion must be granted over a direct EPA delegation to local agency. This
authority also warrants the revocation of a local agency delegation once the
State submits an adequate request for delegation. Thus, any objection from
the State with respect to a local agency's delegation must be carefully con-
sidered, and the State should be urged to either request delegation itself
or withdraw its objections. If, however, the State neither accepts delegation
nor withdraws its objections, the local agency may receive the delegation as
long as it understands that a future delegation by EPA to the State could by
its terms transfer any delegated authority from the local agency to the
State.
5.3 QUESTIONS AND ANSWERS CONCERNING DELEGATION
Over the past several months a number of questions have been raised con-
cerning the delegation of the NSPS and NESHAPS programs. A compilation of
these questions and the corresponding answers is presented in Appendix D,
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APPENDIX A
NEW SOURCE - 15, 1982
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APPENDIX A -
SOURCE PERFORMANCE STANDARDS, NOVEHBER 15, 1902
Source. J.Subpartl,
Pollutant
1. Fossil-Fuel Fired Steam
Generators (D)
2. Fossil-Fuel Fired Steam
Generators (Da)
3. Incinerators (municipal)
(E)
4. Portland Cement Plants
(F)
5. Nitric Acid Plants (G)
6. SulfuHc Acid Plants (H)
7. Asphalt Concrete Plants
(I)
Greater than 250 x 10 Btu/h (Construction
commenced after August 17,'1971 and prior to
September 19, 1978) (§ 60.40)
Greater than 250 x 106Btu/h (Construction
coeroenced after September 18, 1978) (§ 60.40a)
Greater than 45 metric tons per day charging rate
(I 60.50)
K11n» clinker cooler, raw will system, finish mill
x/stem, raw mill dryer, raw material storage,
clinker storage, finished product storage, conveyor
transfer points, bagging and bulk loading and un-
loading systems (5 60.60)
Any facility producing weak nitric add by either
the pressure or atmospheric pressure process
{§ 60.70)
Any facility producing sulfurlc add by the contact
process by burning elemental sulfur, alkylatlon
acid, hydrogen sylfide* organic sulfides and roer-
captans, or acid sludge, but not Include
facilities where conversion to sulfyric acid 1s
utilized primarily as a means of preventing emls-
$4ons to the atmosphere of sulfur dioxide or other
sulfur compounds (S 60,80)
Dryers; systems for screening, handling» storing,
and weighing hot aggregate; systems for loading,
transferring, and storing mineral filler; systems
for mixing asphalt concrete; and the loading,
transfer, and storage systems associated with
emission control systems {§ 60.90)
PM, S02»
PMS S0r
PM
PH
NO,
S02, Add Mist
(continued)
-------
APPENDIX A (continued)
8. Petroleum Refineries (J)
9. Storage Vessels for
Petroleum Liquids (K)
10, Storage Vessels for
Petroleum Liquids (Ka)
11. Secondary Lead Smelters
(L)
12. Secondary Brass and
Bronze Ingot Production
Plants (M)
13. Iron and Steel Plants (N)
14. Sewage Treatment Plants
(0)
15. Primary Copper Smelters
(P)
16. Primary Zinc Smelters (Q)
Affected Jqcjjlty.
*. Fluid catalytic cracking unit catalyst
regenerators,
b. Fluid catalytic cracking unit incinerator -
waste heat boilers,
c. .Fuel gas combustion device (I 60,100)
d. 'Clays sulfyr recovery plants (> 20 LTD/day)
Storage capacity greater than 151,412 liters
(Construction commenced after June 11, 1973 and
prior t© Hay 19, 1978) (I 60.110)
Storage capacity greater than 151,412 liters
(Construction commenced after May 18S 1978)
(S 60.110a)
Pot furnaces greater than 250 kg charging capacity;
Blast (cupola) furnaces", and reverberatory
furnaces (§ 60.120) r
Reverberatory and electric furnaces greater than or
to 1000 kg production capacity and blast
furnaces greater than or equal to 250 kg/h produc-
tion capacity 11 60.130)
#
Basic oxygen process furnace (i 60.140)
Incinerator which burns the sludge produced by
municipal sewage treatment facilities. (§ 60.150)
Dryer, roaster, smelting furnace* copper con-
verter, (reverberatory furnaces processing high
impurity feed are exempt from S02 std.) (§ 60.160)
Sinter machine, roaster (§ 60.170)
Pollutant
a, PM. CO
b. PH
c. S0?
d. SO^
voc
voc
PM
PH
PH
PM
PM, opacity.
PH, opacity,
S02
(continued)
-------
APPENDIX A (continued)
ro
o
_Source_J_Subgart}_
17. Primary Lead Smelter (R)
18. Primary Aluminum Reduction
Plants (S)
19. Wet Process Phosphoric
Acid Plants (T)
20. Superphosphorlc Add Plants
(U)
21. Diamnonium Phosphate Plants
(V)
22, Triple Superphosphate
Plants (W)
23. Granular Triple Super-
phosphate Storage
Facilities (X)
24. Steel Plants: Electric
Arc Furnaces (AA)
25. Coal Preparation Plants
(V)
26. Ferroalloy Production
Facilities (I)
(continued)
Affected facility
Blast or reverberatory furnace, sintering1
machine discharge, and sintering machine
electric smelting furnace, converter (§ 60.120)
Potroom group, anode bake plants (§ 60.190)
Reactors, filters, evaporators and hot wells
(S 60.200)
Evaporators, hotwells* acid sumps and cooling
tanks (§ 60.210)
Reactors, granulators. dryers, coolers, screens
and mills {§ 60,220)
rfixers, cyHn§ (dens), reactors, granulators,
dryers, cookers, screens, mills and facilities
which store run-of-pile triple superphosphate
(§ 60,230)
Storage or curing piles, conveyors, elevators,
screens and mills (i 60.240)
Electric arc furnaces; dust-handling equipment
{§ 60.270)
Thermal dryer, pneumatic coal cleaning equipment,
processing and conveying equipment, storage
systems, transfer and loading systems (§ 60.250)
Electric submerged arc furnaces, dust handling
equipment (§ 60.260)
Pollutant
PMS opacity
S02
Opacity, F
F
F
F
F
PM, opacity
PM» opacity
PM» opacity, CO
-------
APPENDIX A (continued)
.Source (Subpart)
27. Kraft Pulp Hills (BB)
28. Grain Elevators (DO)
29. Stationary Gas Turbine fGG)
30, L1me Manufacturing (HH)
31. Sewage Treatment Plants (0)
32. Ayto and light-duty Truck
Surface Coating
Operations (HM)
33. Glass Plants (CC)
34. Lead Acid Battery Plants
(KK)
35. Phosphate Rock Plants (UN)
36. Ammonium Sulfate Manu-
facturing (PP)
37, Industrial Surface
Coating: Large
Appliances (SS)
(continued)
.AffectedfacljUy.
Recovery furnaces* smelt 'dissolve tank, lime kiln,
digester* brown stock washer, evaporator, oxida-
tion or stripper systems (§ 60,280)
Column and rack dryers, process equipment and
other dryers, loading and handling (§ 60.300)
a. Gas turbines, >_ 10 x I06 Btu/h
b. Gas turbines, ^ 100 x 106 Btu/h (§ 60.330)
Rotary lime kiln, Time hydrator (I 60,340)
Incinerator, > 2205 Ib/day (dry sludge) (§ 60.150)
Surface coating of metal parts (I 60,390)
r
Furnace (I 60,290)
Lead oxide production, grid casting, paste mixing,
three-process operation, lead reclamation, other
{§ 60.370)
Dryers, calciners, grinders, handling and
storage {§ 60.400)
Dryer (i 60.420)
Surface coating operations within large appliance
assembly plants (S 60.450)
Pollutant
PM, opacity,
TRS
PM, opacity
a. S02, N0
b. H0x
PM, opacity
PM, opacity
VOC
PM
Pb, opacity
PH8 opacity
PMS opacity
VOC
-------
APPENDIX A (continued)
Source ..(Subgart)_
Pollutant
38. Surface Coating of Metal
furniture (EE)
39. Metal Col] Surface Coating
(TT)
40. Graphic Arts Industry:
Publication Rotogravure
Printing (QQ)
Metal furniture surface coating facilities
(S 60.310)
Metal coil surface coating operations (§ 60,460)
Publication rotogravure printing presses
(i 60.430)
voc
voc
voc
l\3
-------
APPENDIX B
FOR AIR
POLLUTANTS - IS, 1982
23
-------
NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
Pollutant
.Affected_faclli|y
Asbestos
Beryllium
Mercury
Vinyl Chloride
1. Asbestos mills - waste disposal
2. The manufacture of buildings and structures in which
the following operations are conducted or directly
from any of the following operations if they are
conducted outside of buildings or structures
3. The fabrication of -
(a) cloth* cord, wicks, tubings or other textile
materials
(b) products
(c) fireproofing and insulating materials
(d) friction products
(e) paper, ml11 board, and felt
(f) floor tile
(g) paints, coating, caulks, adhesives and sealants
(h) plastics and rubber materials
(i) chlorine v
4. Buildings or structure which will be constructed
using asbestos insulating products (I 61,20}
5. Specified demolition and renovation activities
{§ 61.22(d))
6. Waste disposal sites (§ 61.25)
7. Spraying (§ 61.22)
1. *Extraction plants
2. *Ceramic plants
3. *Foundries
4. *lneinerators
5, *Propellant plants
6. Machine which process beryllium oxides or any
alleys v/hsn such alloy contains mo -e than 5 percent
beryllium by weight {§ 61.30)
7. Rocket motor sites {§ 61.40)
1, Facilities processing ore to recover mercury
2. Facilities using mercury chlor-alkali cells to
produce chlorine gas and alkali metal hydroxide
3. Facilities which incinerate or dry wastewater
treatment plant sludge (§ 61.50)
1. Ethylene dichloride plants
2. Vinyl chloride "plants
3. Polyvinyl chloride plants (§ 61.60)
'...which process beryllium ore, beryllium oxide, beryllium alloys, or
beryllium containing wastes. (S 61.30)
24
-------
APPENDIX C
EXAMPLES OF REGIONAL OFFICE AND
SUBMITTALS
25
-------
EXAMPLE 1
DELEGATION LETTER
Dear
This; is in response to your letter of ^.m,.,.-* requesting authority
to"implement and enforce the Standards of Performance for New Stationary
Sources (NSPS} and the National Emission Standards for Hazardous Air Pollu- '
tants (NESHAPS) programs.
We have reviewed the pertinent laws of the State of and the
rules and regulations thereof, and have determined that they provide an
adequate and effective procedure for implementation of the NSPS and NESHAPS
by the State of _. Therefore, pursuant to Section III of P.L.
31-504 (1970) as~amehSed~5y~P^-. 95-95 (1977), the Clean Air Act (CM) as
amended and 40 CFR. Part 60 and Part 61, we hereby delegate our primary
authority for implementation and enforcement of NSPS and NESHAPS, respective-
ly, to the State of :_ _ as follows:
A. Responsibility for all sources located or to be located in the State
0-f -___-___-_«_-»_ subject to the standards of performance for new sta-
tionary sources promulgated in 40 CFR Part 60 and thereto
as published in the Federal Register^ as of the of your request
letter on _________________27™~^*^* categories of new sources covered by this
responsibility are: ,
B. Responsibility for all sor T'Tted 3F to be located in the 54ate
of subject to the national emission standards for hazardous
ai>*^oTTTJtaritF promulgated in 40 CFR Part 61 and thereto as
published in the Federal Register as of the of your request letter.
The four hazardous air poTTutaritiF covered by this authority are asbestos,
beryllium, mercury* and vinyl chloride.
C. This delegation is based upon the following conditions:
1, Existing monthly "CDS" reports normally submitted to EPA through
program plan reporting will be expanded to contain pertinent
information relating to the status of sources subject to 40 CFR
Parts 60 and 61. As a minimum, the following information should
be provided to EPA: the name, address, type and size of
facility, that operation at the facility and
of most recent stack test, the compliance status of each facility
with accompanying explanations of noncompliance where applicable;
26
-------
notice of enforcement actions brought against facilities subject
to 40 CFR Part 60 or 61; surveillance actions undertaken for each
facility; and the results of all reports relating to emissions
data.
2. Enforcement of NSPS and NESHAPS in the State of ______ will
be the primary responsibility of the .
If the State determines that such enforcement is not feasible and
so notifies EPA, or where the State acts in a manner inconsistent
with the terms of this granted authority, EPA mil exercise its
concurrent enforcement authority pursuant to Section 113 of the
Clean Air Act, as amended, with respect to sources within the
State of __________ subject to the NSPS and NESHAPS.
3, Acceptance of this delegation of presently promulgated NSPS and
NESHAPS does not commit the State to request or enforcement
responsibility of future standards and requirements. A new request
for enforcement responsibility will be required for any standards
not Included in Paragraphs A and B above,
^fx -•
4. If at any time there is a conflict between a State regulation
and a Federal regulation (40 CFR Parts 60 and 61), the Federal
regulation must be applied If 1t 1s more stringent than that of
the State, If the State does not have the authority to enforce a
Federal regulation, the pertinent portion of the delegation may be
revoked.
5. , Performance tests shall be scheduled and conducted in accordance
with the procedures set forth In 40 CFR Parts 60 and 61 unless
alternate methods or procedures are approved by the EPA Administra-
tor. Although the Administrator the exclusive right to
approve equivalent and alternative methods as specified in
40 CFR 60.8(b) (2) and (3), and 64.14, the may approve
minor changes in methodology provided are reported
. to EPA Region . The Administrator a1sr. retains the right to
change an opacity standard as specified in 40 CFR 60'.ll(e).
6. Additionally, the State of must require reporting of
all excess emissions from any~lSFs source in accordance with 40
CFR 60.7(c).
7. Alternatives to continuous monitoring procedures or reporting
requirements, ts outlined in 40 CFR 60.13(1), may be approved by
the State with the prior concurrence o-f the EPA Administrator,
f— {Zct^a -£?!; -£"£*&? ff o.n cyafrv isf I
B, If a source proposed to modify its operation or facility which
may cause the source to be subject to NSPS requirements, the
State shall notify EPA Region and obtain a determination
on the applicability of the NSPS regulations.
77
-------
If the Administrator determines that the State procedure for
enforcing or implementing the NSPS or NESHAPS is inadequate,
or is not being effectively carried out» his delegation may be
revoked in whole or part. Any such revocation shall be effective
as of the specified in a Notice of Revocation to the
10. Information shall be available to the public in accordance
with 40 CFR 80.9 and 61.15(b). Any records* reports, or infor-
mation provided to, or otherwise obtained by» the State in accord-
ance with the provisions of these regulations shall be availa-
ble to the designated representatives of EPA request.
The State and EPA will develop a system of communication sufficient to
guarantee a program that includes the items described below:
a. Each agency is informed of the current compliance status of
subject sources in the State of .
b. Prior EPA concurrence is obtained on. any matter involving
interpretation of 40 CFR Parts 60 and 61 {including unique
questions of applicability of the standards); and
c. Enforcement actions (including requests for information and
enforcement actions based thereon) already Initiated by EPA
prior to this delegation, shall be completed by EPA.
A notice announcing actions will be published in the Federal Register
in the near future. The notice will -state, other things* that, effect-
ive immediately, all reports required pursuant to NSPS and NESHAPS, by sources
located in _____________ should be submitted to the _______^ ____•
Any such reports which have or may be recei>eFliy~EPAV~Re9iorr^_-_, wiTT
be promptly transmitted to this agency.
Since this action is effective immediately, there is no requirement that the
State of'___ notify EPA of its ar"»-•*•»"'•* Unless -EPA receives from
the State of __ written notice of objections within ten (10) days
of the date of receipt of this letter, the State will be deemed to have
accepted all of the terms as stated herein.
Sincerely yours,
Regional Administrator
28
-------
EXAMPLE 2
AUTOMATIC DELEGATION LETTER
Dear
On we delegated to the State of the authority for
impTSnentaHorTand enforcement of the Standards~oTTer7oniiance for New Sta-
tionary Sources (NSPS) and the National Emission Standards for A1r
Pollutants (NESHAPS) that had promulgated by EPA as of _________«
On ^_____________^ EPA promulgated NSPS for ijo-mg._::
As stated in our letter of ___^_____^_^_^^ we have reviewed the pertinent
laws of the State of _g^ ____ ,,..,,„„„ and your rules and regulations, and have
determined that they provide an and effective procedure for imple-
menting and enforcing the NSPS in the State* of .__________• Therefore* we
hereby delegate our authority for the implementation and enforcement of
NSPS to the State of ______ as follows:
Authority for all sources located or to be located in the State of
_ subject to the Standards of Performance for New Stationary
Sources for _ _ _ promulgated in 40 CFR Part 60 as of the date
of this letter.
This delegation is upon the same conditions as those stated in our
letter of ^ ^ ^ ...... ^ ..... t ..... ^.t condition 4, relating to Federal facili-,
ties, has voided by the Clean Air Act of 1977. A copy of
the , letter was published in the notices section of the fMerjLL
--— j- PR ^ _ |^ ^n associated -ulemaking was
^ ^^ ^ _
pubTTsted on .______-_____,^-^^ FR _ _ Jt to notify the public that
certain reporW*TH3:"appti'citfons required from operators of new sources
shall be syteitted to the of _ ). A notice announcing this
delegation will be published in the*"^^eHT Re2iste£ in the near future.
Since this delegation is effective immediately, there is no need for the
State to notify EPA of its acceptance. Unless we receive from you written
notice of objections within ten days of the date on which you receive this
letter, the State of _ will be deemed to have accepted all of the
terms of the delegation.
Sincerely yours,
Regional Administrator
-------
EXAMPLE 3
DELEGATION AFTER STATE REQUEST
Dear Mr. _ __:
On , we delegated to the State of _:T:rT:rr._^ the authority
f orTiipTeienHtTorTa nd enforcement of the Standards of Performance for Niw
Stationary Sources (NSPS) and the National Emission Standards for Hazardous
Air Pollutants (NESHAPS) that had promulgated by EPA as of
On s » »
_ _ _ __ „____ ., ______ -..-.- ....... .^.
for ^ ....... ^ ........... : ..... ^ ....... , t" » and __________,.» respectively; on
EPA"l>romuTgati
-------
Since this delegation is effective inmediatelys there is no for the
State to notify EPA of its acceptance. Unless we receive from you written
notice of objections within ten days of the on which you receive this
letter, the State of will be to have accepted all of
the terms of the deleptTonT""™"
Sincerely yours,
Regional Administrator
31
-------
EXAMPLE 4
FEDERAL REGISTER NOTICE FOR DELEGATION
of NSPS and NESHAPS
32
-------
Standards o1 Performance for New
Stationary and
£rtiis*ion for
Air
Drt^atfofl of Authority to of
Missouri
Through December 1.1579, pursuant
to Sections ill and 112 of the Qean Air
Act as amended the of
the EavtronmentaJ Agency
(EPA) has promulgated
establisoing standards of
for 30 of aew stationary
sources, and national
standards for five hazardous air
pollutants. Sections lll(c) and 112|d]
direcuhe Admiffistrator to delegate Ms
authority to implement and enforce the
NSPS and NESHAPS to any state which
has submitted adequate procedures.
Nevertheless, the retains
concurrent authority to mad
enforce the foUowfef
dtlegition of authority to the state.
Oa April 18. the of the
Mljoari of Ht
submitted to the
EPA « for
of In that
wen of tie of
Missouri which
by tht
standard* and Hi
for* is 40 CTR 60 and SL with
certain exception*, Alto were
copies of statutes which provide the
state with the requisite authority to
the NSPS uad After
a thorough review of that request the-
EPA reffaoaJ has that
for the set to
paragntpim A tad B of the
letter to the ©I the
MDNR. delegation is subject
to the conditions Ml forth is paragraphs
1 through 8 of
Therefore, in a dated December
IS, ike notified
the MDNH that Its request
had Tta letter
is reproduced below*
December 18, 1980.
Fred A. Lttttt, Difvetaf. Mitsouri
Dgparmmt off/atuntJ Attoutces, P.O.
Seat 179, /nffitfsan City, Mo.
Detr Mr, Laf»«K Tim m m r«tpoa»t to your
letttf of April m w^atsttog dalegttian
of authority for iaspiaaaeautioa «od
enforccmeat of the Stairfjjdi of J%fa«j«nce
for N*w $tatioa«y Soor«$ (NSPS) and the
National Esaiioe Stanciaros for Hazardous
Air Potttttaaii (NESHAPS) to the «*» of
MtMOttfl Tou IsttKf sispercedes ibs
dcleg lentf July 28, It ,
tantaisj A aew $«t of conditioas atf atkted
in aad with
your staff sioct that d«t«.
Wt hav« revicwtd the Itwi of
Lh« SUM of Mij-Kmn. «sd tb« fiiies sad
regoUitioitt of ttt Ar GMsawfvttioa
Rd« 10 10-ftJjro aad l&~
and hsvt d^ssraLLned that tbty provids
cffscav® proc«
-------
AA
Plants: Btctric
« Kraft Pulp Milk. Subpart BB
* Grain Qtvcten. S«bp*rt 00
• Gas Turbine Stcsric Generators. Subpart
GG
* Urn* Manufaeturinf Plants. Sobpart HH
• Appendix A
9 Appendix B
S, Authority for til soorets looted In the
State of Mwoari aubfect to lit NESHAPS
promulgated in 40 CFR Part 61 a of
December 1. J97E, as follow*
« C«nerai Provision*. Subpan A
« Aabtstoi, Subp«« S
« BeryiJiujn, Sufepan C
* Btt-yUittio Eoeket Motor Fuel Sobpart D
* Mercury, Subp*rt E
o Vlnyi QJorid*. Sttbpart f
» Appendix A
TbrEPA Is ia th« preets* ef
f*p»a>uJg«tIag the work practice itasdards
ti i result of litigation. Until this
repromolgation it finiahed. the work practise
standard* art not enforceable under S«etloa
113 of the dean A» Aa M amended Asftm
1977,
Th* ddef »doa for tad NISHAPS Is
b»»«3 upon the following eeaditioss:
L All seurets ia the e»t*goritt
«lxms sludJ provide tfi a@ee»«y
aotificatiom aad eemdwet pwforamfia*
ffl f^^** *** *•
tt «OTl Pwi 80 Sabpart A aod 40 CFR Pm
« 5ttbp«rt A, The M»w«ri Department of
NutuntJ Reaourew «kall only
the w* of itstteg aethocU or JJ»^B»I
specified in eaeb appUeabie Sobpm^Qf Part
« and Put «. s»l«8» dj® B>A b*» giv«& prior
*ppreviJ to an «Jt«ra«tJv» or •owtvtkot
method
2. The MDM1 will lutroct each
affected by Uu NSPS or ,0 p^jg
copi« of all required aettBeaiioa*. punuaat
« Subpart A. to tat Ol«c*or el the
Enforcement Oiviaioa. EPA. Refisjt ¥tt 324
East 11 tb Street Kitnaaj Qry, MO SliGi.
3. All sources iubject ta Uie anil
NESHAK must monitor efflitskm* sa
specified by the applicable Sabp«rt la
additioa contoaoat mociteri«f taslmm«ista
must be tcsited »ce«nilnt to the pwfonaaaoi
sptcificatiofta at 40 C3X ftm a& Appendix a
if she MDNR Cadi thai * method for
emission monJtorinf ether than
that specified te th« pen ef 40 CFR
Pan W or Part ei it iMeataaiy, lh« BWs
cs«aar«iice shaO be ebitteed prier t®
notifying the owner or apwsfor of the
aceeptanct of the alternative test method
*, L'poa pr,or •ppravaj of the Director of
we Air and Hazardswi Materials Division of
me EPA. Eegion V1L the Dk«tor of Us*
J-rONH ai*y sub-delefile the tuthsrity lo
impJemem and enforce the NSPS aad"
MESH APS to local air pollution control
i»p«!ncies in the *ute, when such agencies
b»v<» demonseraied that they have equivalent
or won itnngent program* in force. '
S, Hit MDNR «h»Q notify At EPA of »oy
request for t vMianee from the NSPS *nd
.VE5HAPS «qulnncat» pnor to a»y ietioa on
s«<± fwquwt, aad the MONK mO at no em«
jrant » vtriaaot from any of At reqtaremeati
of At or without the
approval of the EPA.
S. Any reqaests for WarmatioB pertaining
to iOttt-ctn swbjec: to the NSPS or K*E5HAP5
with waich the MDM1 caaaei comply
btesttf* of its cs»Jld«aii»Iit^ requtrements.
moat bt forwarded to the EPA,
*, A new r«qB«3t for deiegaa'00 will be
for any f tawiwds aos wdudttl la
At aute'i request «rf A|ffi! 18. 1S8Q. Aay
NSPS md/9t NESHAPS promulgated by
EPA. bat aot yet «dopt«i by tha »«», wffl be
eBforwd by tha EPA,
i. If tha Director el th« Air &r>d Haxardom
Ma ten sis Di vision det*raia« that * it«tt
proctdaft for tsfoteinf or tmplameatini tha
NSK or NESHAPS it iaadaquata. or ia aot
betas effectively camtd «rt,
nay b« twoktd la whole or te part If
deficiencies art found ta tht MDNTR. prograo,
the *iB the ^ffiNl of the»e
will tpecify appropriate
csaam. and will allow the
MON1 * na.Ksi.bh tine to Implem«st ihcse
- measiirea, If thws defideades con Sin u« to
*xi*t after the afiotttd tiat*. th* EPA »*y
thea nwakt thia delegation. Tb« IPA wfll
not% tit* state of It* iateot to (wvdbt tiais
dslegsoon, and tht fteMM fwicvooitiaa. tl
lettt IS days prior to th* *ffteti«* dste of tb«
revocaooa. Asy f «eh nmentioa ihjdl bt
effective aa of lt«t datt tpacifiad ta a •ttotfea
of R® vocation" to tht Statt ef MUaourL
Tke MDNR siteuld tha «B«arrtaca
cf th* EPA pnor to iasvlaf any ditermiiwiioa
of th* tppiieability of tit er
when, there it no detr pmoideot tad it i»
necet»ary te utttrpnt tlie rtfoktioM.
A notici? snnQuncinf Ait dc!e-gaUon will be
pubtiviwd is A« f*d*»i Ra^rtv la te near
future.
Tii« d*)*gation to effeetiv* temediately;.
Rew« «doBOwl«d|« »ec*pt»wt of thia
delegation, ia writinf. witMa tee ftQJ days of ,
nccipf of thfai letter.
If the MDN1 dsttisaimts that it can ao
longer tnforw or ti* NSK aad/or
it may rtfwui that the EPA
thia delegation under Couditiofi t,
If you bs v« tny question*. plttM canssct
mt at alB/374>W71. Th« »«moef of my ataff
who i* molt familiar with thia wbject Mr.
Craig W. Smitk fl«/3?4-eS2S, caa also
pro v id® Additional lafomatioa.
Sincsrdy yours.
Dsvid- A. Wagoner.
Dinaer. Aif and hazaxdaui Materials
Divisions
-------
Copies of the request for delegation of
authority art available for public
inspection at the Environmental
Protection Agency, Region VH. 324 East
llth Street Kansaj City. Missouri
Effective immediately. *H reports,
request*. and
ether required pwrsraaat
to th« NSPS and
listed in the above letter should b®
submitted to tbe Missouri Department of
Natural Resources, P.O. Box 1368.
Jeffenon City, MUtouii 85101.
Copies of nstifieatlosss required
punmani to 40 CFE Part SO, Subpart A
and 40 CFR Part 61, Subpsrt A si»U sko
be stibmitted to tb® Director.
Eaforeanest Division at the EPA
regional office rot nuoaded,gbove,
^Thb Notice is issued under th«
au&ority of Sactioos 111 asd 112 of the
QMUB Air Act as .tmimded (42
7411 «ad 7412).
VH,
FIM I~ti8-tt; &4* sssa,'
35
-------
5
FOR
OF SSPS ASD
-
36
-------
Startdsrsi* of Psrformane* lor New
Sources; Delegation of
Authority to the @i South
Cam*1**
AOH4CY; Eavtrojusseatal Protection
Agency.
ACTION: Information notice.
: Section lll(c) el the Gets •.
Air Act permits EPA to delegate to the
States the authority to and
At standards let oat in 40 GFE
Part 60. Staad&rtts of Perfomjiuaw for
New On
23, the Of
CamMaa asked S>A to to It
•othonty for NSPS categoric*
promuiiated between October IS,
and January 29, 1981. EPA the
request on Mardi 1?, 1881. The
sow ha* authority to'tmpieaeof
enforce NSPS for fwromUoy produjciioa
facilities kraft mffls, Bss«
majerofaetiaiaf plait*, elevators,
utility bofle*. *t*ti0a&ry gu
^ turbine*.
* t u.lfate pkau, and
•atomobilt «>«tof fadlttes,
Application* tad
tbes« bt to the
Sute't of AJt QaidJty Control
to EP A Region IV.
17,
AppIiotHoas «ad
all
categories prior to
17, lihouid be to Ac
Sooth Caroliaa DepErtatat of Health
Contttsl Bureaa of
Air Coatrei lufl Street
Goiurabm, South CaroIiJM rather
to IV,
Ray of the EPA IV, Air
404/881-
On
October IS, EPA to
South Carolms authority to
•ad the «ad
«s of October 18, (set
,42 PR }«mafy 24* Oa
'ja»tt*ry 29* the Slate ttquetttd that
EPA delegate to it authority for the
NSPS promu% a ted between October li,
ism and January 29, 1981. Delegation of
these ttaadard* w«s madt by the
foEowing letter on March 17, 2981:
Mr. waika G. Crosby.
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This deJtfation u b»«J apon the saint
cottdtfiooa *« them sated Sa our letter of
October 19, 1978, exetpt for condition 4
fejirfffig federal faoHHes, A copy of this
letter wm» pahUiaed in the Notices section of
the Fedecai R*f»«r of January 24. 1SJT |4*
FR 4iBa>, with the associaitd
fttksmktag noarnng the public that ceraia
reports sad applications required from
operators of new sources wiail b« submitted
to fSs Slats of South Caniisa (42 FH 4124).
AJJ the esndiagss Ustsd La the janusjy 24
1977 F*detmi 1fat$aiut txa^jt coodilioD 4 we
h*r«fay incorpo rased into tM$ daitfatioa by
nfcnucc. A aotics announcing tfals
dotcptlea will b« publisht d io tht f ederet
Rrpstsr IB the a«ar fctore.
tils; delef ttion Is effective
imsediatdy, tfaere u so need for tht Stilt Is
es»t% EPA of to *6eept«a!. Unless we
meeiw frem ya« writtea note of obfections
within tea days of tilt da is on whjdi you
rtctivcd tfal> tatter, the State of
Quniios wfQ b« to have accepted all
of dat of tli* d«J«f mtisa,
Regime! AdrnMstmtoe.
Effective Immediately, all
applicaUoos, reports, and oth«
carrespoodence required under the
NSre for f«To«loy ftcilJties,
Strait pulp silk. Erne manufacturing
plants, elevators,, electric utility
boilers, stationary gas torblB«s.
plants, ammonium
luifate plants, and sulombile surface
facilities should be $«nt fq. the
South DepartecsS of Healtli
and En¥iroa»cotal Confrol (set address
above) rather to the EPA legion IV
In Atlanta.
(Sfe, iilfe). Qe«a Mr Act (42 U.S.C 74ll(c)J
Dated: May & im.
l@hnA.yttk,
Acting Regtoiml ' Adamistmtor,
38
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APPENDIX D
QUESTIONS AND
39
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QUESTIONS AND ANSWERS CONCERNING DELEGATION
I. Preliminary Requirements for Assumption of Authority for NSPS and/or
NESHAPS
A. Before delegation to a State or local agency could take place
,. .»• would it be necessary for the agency to demonstrate adequacy of
their program to:
(1) perform surveillance?
A delegation request would not be required to be detailed
concerning surveillance. The Regional Office may consider
surveillance for other approved activities such as surveil-
lance for existing sources subject to requirements contained
in the SIP when making a determination on the delegation
request. The State should have sufficient resources to
perform surveillance and the RO should carefully review
this aspect of the delegation,
(2) allow public disclosure of emissions data?
If the State or local agency cannot make such data avail-
able to the public, they must be able and willing to make
it available to EPA upon request.
(3) report on a routine basis to EPA the status of NSPS and/or .
NESH^?S sources?
It would be necessary for the State to report routinely, but
these requirements would be the same as already listed in
40 CFR 51.
(4) provide adequate resources by listing in detail the resource
allocation for the NSPS and NESHAPS programs?
It may be that the resources are adequate if the State's
general air program resources are adequate, however, this may
depend on the source population for the delegated programs, A
review of the agency resources is necessary prior to delegation,
Delegation is high priority and if the State or local agency
or EPA feels the resources are inadequate, the grant mechanism
shall be used to encourage reallocation of resources for these
delegation activities.
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(5) enforce NSPS and/or NESHAPS in detail?
If the agency has an adequate enforcement program for SIP
sources then the enforcement program is probably adequate for
NSPS and/or NESHAPS sources. The delegated must signify
their intent and capability to carry out enforcement for the *
delegated programs.
(6) have equivalent regulatory standards for NSPS and/or NESHAPS?
The State or local regulation for sources covered by NSPS
and/or NESHAPS must be at least as. stringent as the Federal
standards or the agency may adopt the Federal standards by
reference.
B". ' Can a State that has been delegated NSPS or NESHAPS:
(1) waive a performance test after demonstration by the owner or
operator of a source that the affected facility is in compli-
ance with the standard as allowed under Section 60.8(b)(4}?
Yes, but the State must notify the appropriate EPA Regional
Office of the waiver.
(2) determine representative conditions for purposes of conducting
performance tests specified in Section 60.8(c)?
Yes, however, EPA most be informed of the conditions at
which all performance tests were run if different than those
normally used.
(3) make determinations of confidentiality?
Yes, however, a determination by the State agency that infor-
mation is confidential under State law does not bind EPA to
a similar determination. EPA will continue to follow the
procedures of 40 CFR Part 2 in determining the confidentiality
of requested information under Federal law,
{4} approve smaller sampling times or sampling volumes under the
conditions specified in Sections 60.46(b) or (d)?
Yes» however, for the purpose of uniform enforcement of
standards, any changes made in the test methods must be
reported to EPA.
(5) authorize the use of wet collectors in accordance with the
specifications of Section 61.23(b)?
Yes9 because control specifications are detailed. However,
EPA must be informed of all such authorizations*
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C. May delegations be made directly to local programs even if the
State has not received delegation? Is -State approval necessary for
delegation to a local agency?
(1) Delegations may be made directly to local agencies if they
meet all the necessary conditions for delegations and are
recognized by EPA.
(2) State approval for delegation to a local program may not be
necessary unless the State has statutory restrictions
that would prevent the local program from enforcing the
delegated standards without State approval.
--»D. Is it necessary for the request for delegation from the State or
local agency to include the date of Federal approval for all
applicable SIP revisions?
No, only the applicable SIP provisions must be cited.
E. Is a public hearing or public comment period required prior to
delegation for a State to enforced given NSPS or NESHAPS standard?
Because the NSPS or NESHAPS regulations have undergone public
comment when they were as Federal regulations, and the
delegation not affect the regulations or their applicability
to sources there is no Federal requirement for a public hearing.
Therefore, a public hearing is not necessary unless the State has
statutory requirements to meet.
F. What is needed from the State or local agency to initiate the
delegation process?
A request from the Governor or a designated local agency official"
requesting authority to implement and enforce the NSPS and/or
NESHAPS program.
G- Is a £M§i Register proposal necessary prior to delegation to a
S ta te"tto~
No» Immediate final rulenaking may be used. Then a notice is
published in the federal^ B®£iSl§L to notify the public.
H. Is it possible to delegate NSPS and/or to a State or local
agency that does not have written- standards for the applicable
sources covered and has not adopted the standards by reference?
42
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Yes, if the State or local agency has an enforceable permit system,
and they agree to specify the appropriate standards In the operating
permit, it is possible for the agency to the NSPS and/or
NESHAPS programs. The issued permits do not have to be conditioned
based on any EPA approval because EPA still retains concurrent
enforcement authority for these standards.
I. If a test method or methods inconsistent with those approved by the
Administrator of EPA are submitted by a State requesting dele-
gation, can delegation still be granted?
No, the State must agree to use EPA methods or an equivalent or
alternate test method as approved by the Administrator for all
,-_» sources subject to NSPS and NESHAPS. If a State believes that its
methods are equivalent to EPA methods or are adequate for demon-
strating compliance with standards, then the State may submit those
methods to EPA for approval. Until they are. approved, however, the
State must agree to use the approved reference methods.
II. Reserved Areas of Delegation
* f'je:
A. What specific areas of the NSPS program are reserved for the Admini-
strator because they require rulemaking and would impact on National
consistency? These specific areas cannot be delegated to the State
agency.
(1) The approval of equivalency for design, equipment, or work place
standards that will achieve a reduction in emissions as allowed
for in Section lll(h)(3) of the CAA. An example of this type
of regulation is 60.114a.
(2) The approval of a waiver based on innovative technology as
allowed for in Section lll(j)^of the CAA.
(3) Approval of equivalent and alternate test methods [60.8(b)(2)
and (3)].
(4) The authority to establish alternative opacity standards
[60.11(e)3.
(5) Th® authority to issue commercial demonstration permits under
.lybpart Da [60.45(a)].
(6) Approval of alternative testing times for primary aluminum
reduction plants [60.195(d)l.
(7) Certain portions of the Stationary Gas Turbines Standards
dealing with nitrogen fuel allowance [60.332{a)] and ambient
condition correction factors [60.335(a)(ii)3.
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(8) The authority to applicability determinations pertaining
to sources subject to the NSPS and NESHAPS. The delegated
State agency may exercise judgement on the Compendium of
Applicability determinations issued by EPA annually, and
updated quarterly. Any applicability determinations not
explicitly treated in the EPA Compendium must be referred to
EPA for a determination. Also, any determinations by the
State agency on the Compendium roust be sent to EPA for
informational purposes' in order for EPA to 'maintain National
consistency.
B. The following questions discuss other areas not reserved for the
Administrator that may be delegated to the State agency.
" " (1) May a State authorize the use of filtering equipment as
explained in Section 61.23(c)?
Yes, however, EPA must be informed of all such authorizations,
(2) May a State approve sampling techniques as specified in
Section 61.43(a)? *
Yes, however, EPA must be informed of all such authorizations.
(3) May a State use reference methods with minor modifications of
methodology like those specified in Section 60.8(b)(l}?
Yes, however* to ensure consistent use of the test methods,
all minor changes in methodology must be reported to the
appropriate EPA Regional Office. This should be done only
when site specific conditions preclude the exact use of the
test procedures.
(4) May a State, which has been delegated NESHAPS enforcement
authority, grant waivers of compliance like those specified
in Section 61.11?
Yes, delegation to a State that has a provision to grant
waivers must be conditioned to allow the granting of sych
waivers only for new standards. The 90 day limit for granting
wtivers has expired for existing standards, waivers
be granted within 90 days of their effective date for
ne^ standards, the State must be granted the authority in the
delegation.
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III. Implementation of NSPS and/or NESHAPS
A. Does a State or local agency have the authority to enforce NSPS
and/or NESHAPS type regulations in their own regulatory framework
even if they have not received delegation from EPA?
Yes, nothing in the CAA restricts the State or local agencies from
promulgating and enforcing their own regulations.
B. If a State cannot or will- not use EPA test methods or equivalent
methods* what recourse does EPA have?
EPA may exercise its concurrent enforcement authority and require
a source to use the EPA test method to demonstrate compliance.
An agreement to use EPA test for all sources subject to
the delegated programs should be before the are
delegated.
C. Should a State which has adopted standards more stringent than
EPA's new source performance standards be allowed to grant vari-
ances to meet the more stringent StaW requirement?
Yes, as long as the variances do not prevent compliance with the
specified Federal standards.
D. Is a State prohibited from enforcing NSPS or NESHAP against a
source which commenced construction before the effective date
of the delegation?
There is no Federal restriction on enforcing the standards. When
ta program 1s delegated, the State responsibility for all
'activities pertaining to implementation and enforcement of the
program, including any ongoing actions. However, States may
have grandfathering statutes which would allow the State to enforce
standards only against sources construction after the
State assvas responsibility. In cases, the Agency can
develop a cooperative with the State for division of
authority for enforcing the standards.
IV. Future Actions
A. Wtetritetlons woyld be necessary for future standards or changes
proiwfgated by EPA in the delegation process:
(1) if the standards are revised by EPA?
If the State adopted the standards by reference or used auto-
matic delegation, no action would be necessary on the part of
the State.
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(2) if a new or revised test method is promulgated?
The State need only adopt the new method or an equivalent
method.
B. Would a proposal for an automatic delegation be necessary each time
a new standard is promulgated?
No, immediate final rulemaking may be used because the standards
have already been proposed for public comnent.
C. Does a delegation to a State or local agency expire?
Nos delegation of authority has no expiration date and therefore
does not expire.
0. Is it necessary for a State or local agency to request delegation
each time a new standard is promulgated?
Not if an automatic delegation procedure is in effect. The Regional
Office may notify the State or Iota! program of the promulgation and
concurrently publish a notice in the fsdera^ Re£i_ste£ with no action
required by the State or local program. If automatic delegation
is not in effect, the State has to follow the procedures for assuming
delegation of the standards.
E. Would redelegation ever be necessary?
There is no appropriate provision for redalegation of a standard.
The only time this might occur Is if delegation were withdrawn
from an agency for just cause, or because some legislative changes
in the State that would not allow the delegated agency to implement
or enforce the standards. In this case, EPA would assume responsi-
bility for the programs.
Redelegation would not apply when standards are revised or new
standards promulgated, since the State agency would request dele-
gation, only for the new or revised standards and the previously
delegated authority would remain in effect.-
F. If EPA revises an NSPS or NESHAP after delegation has been given,
does the standard have to be redelegated to the State?.
No, once a State has been delegated a program, it has the program
until such time as EPA may determine that the State is no longer
capable of implementing or enforcing the program. When regulations
are revised, it is EPA's responsibility to notify the State of the
changes, to work with the State, to provide any necessary assistance,
and to ensure that the legal authority to implement and enforce the
revised rules is maintained.
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