EPA Process Manual for Responding to Requests Concerning
Applicability and Compliance Requirements of
Certain Clean Air Act Stationary Source Programs:
New Source Performance Standards (NSPS)
under CAA section 111(b) and 40 CFR part 60
National Emission Standards for Hazardous Air Pollutants (NESHAP)
under CAA section 112 and 40 CFR parts 61 and 63
Emission Guidelines for Federal Plans and State Plans
under CAA section 111(d) and 40 CFR parts 60 and 62
Solid Waste Incinerator Rules
under CAA section 129 and 40 CFR parts 60 and 62
July 2020
Office of Air Quality Planning and Standards
Office of Air and Radiation
U.S. Environmental Protection Agency
This document is intended for internal use only. It is not intended, nor can it be relied on, to
create any rights enforceable by any party in litigation with the United States. This document
may be revised without public notice to reflect changes in EPA's policy. An up-to-date
version of this document will be available at https://www.epa.gov/sites/production/files/2020-
07/documen rocess manual.pdf.
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CONTENTS
Section 1. Overview 1
1.1 Background: Context and Scope of this Manual 1
1.2 Overview of Requests Addressed in this Manual 2
1.3 Overview of Delegations of Authority 3
1.4 EPA's Tiering System 6
1.5 Overview of Procedures for Addressing Formal Written Requests 11
Section 2. Distinguishing Incoming Requests 12
2.1 Applicability Determinations 12
2.2 Regulatory Interpretations 18
2.3 Alternative Test Methods 20
2.4 Alternative Monitoring 26
2.5 Other Alternatives, Extensions, and Waivers 30
2.6 Other Requests NOT Covered by this Manual 35
Section 3. EPA Procedures for Addressing Formal Written Requests 36
3.1 Submitting and receiving a request 36
3.2 Confirming details about the request 37
3.3 Tracking the request (through the National Tracking System on SharePoint) 38
3.4 Tiering and assigning a lead office 39
Box 3.1 Consultation Overview 40
3.5 Preparing for consultation 41
3.6 Researching the issue(s) 42
3.7 Drafting EPA's response 42
3.8 Consultation and review of EPA's response 44
3.9 Finalizing EPA's response/ signing by delegated EPA official 45
3.10 Distributing EPA's response 45
3.11 Uploading the response and other materials to the National Tracking System 46
3.12 Publishing to ADI and the Federal Register 46
Box 3.2 Example of the Process for Issuing a Tier 3 Applicability Determination 47
APPENDIX A. Responding to Informal Inquiries A-l
APPENDIX B. Interface with Title V Operating Permits B-l
APPENDIX C: Relevant Regulations and Definitions C-l
APPENDIX D: Delegations of Authority D-l
APPENDIX E: Checklist of Information Relevant for Consultation E-l
APPENDIX F: Process Flow Charts F-l
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Section 1. Overview
1.1 Background: Context and Scope of this Manual1
This manual addresses certain types of requests from regulated entities, state, local, and tribal air
pollution control agencies (air agencies),2 and other stakeholders concerning the applicability of
and compliance with stationary source regulations issued pursuant to sections 111,112, and 129
of the Clean Air Act (CAA). Under section 111(b), the Environmental Protection Agency (EPA
or Agency) establishes New Source Performance Standards (NSPS) for new stationary sources.
Under section 111(d), EPA establishes Emission Guidelines for State Plans and Federal Plans for
existing sources. Under section 112, EPA establishes National Emissions Standards for
Hazardous Air Pollutants (NESHAP). Under sections 129 and 111, EPA establishes NSPS and
Emission Guidelines for State and Federal Plans applicable to solid waste incineration units.3
The regulations implementing these provisions are set forth in Title 40 of the Code of Federal
Regulations (CFR):
• 40 CFR part 60 contains NSPS and Emission Guidelines issued under sections
11 l(b)/l 29(a) and 11 l(d)/l 29(b) of the CAA, respectively;
• 40 CFR part 61 contains NESHAP originally issued under section 112 prior to the 1990
amendments to the CAA;
• 40 CFR part 62 identifies EPA-approved State Plans and contains Federal Plans issued
under sections 111(d) and 129(b) of the CAA; and
• 40 CFR part 63 contains NESHAP issued under section 112 after passage of the 1990
amendments to the CAA.
The development, implementation, and enforcement of these regulations is a shared
responsibility among multiple EPA offices, along with delegated air agencies. Within EPA, the
Office of Air and Radiation (OAR) is the lead office for developing the regulations, the Regional
Offices oversee their administration, and the Office of Enforcement and Compliance Assurance
(OECA) ensures compliance through a variety of means, including compliance monitoring,
compliance assistance, and enforcement. The Office of General Counsel (OGC) and Offices of
Regional Counsel (ORC) provide legal support in the development, implementation, and
enforcement of the regulations.
1 This manual supersedes EPA's 1999 guidance titled, "How to Review and Issue Clean Air Act Applicability
Determinations and Alternative Monitoring," EPA 305B-99-004 (February 1999) (the "1999 Manual").
2 The CAA defines "air pollution control agency" to include air agencies of state, local, and tribal governments. 42
U.S.C. § 7602(b).
3 The NSPS and NESHAP programs under CAA sections 111(b) and 112 establish emission standards for certain
pollutants and/or source categories that apply directly to sources and are immediately implemented by EPA (or a
delegated air agency). Regulations under section 111(d) and section 129 function slightly differently. As noted
above, section 129 rules include both a section 111(b) NSPS component (which functions the same as other NSPS)
as well as a section 111(d) component. Under section 111(d), EPA first promulgates Emission Guidelines. The
Emission Guidelines do not themselves establish requirements directly applicable to sources. Instead, states are
required to submit State Plans (which are based on the Emission Guidelines) for EPA approval; the provisions of
each State Plan establish the applicable requirements for sources. EPA also promulgates Federal Plans, which
similarly establish the applicable requirements for sources located in areas not covered by an approved State Plan.
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The Agency endeavors to develop clear and understandable regulations that are effective and
meet their intended purpose when implemented. However, technological advances in processes
and emission controls and modern emissions detection and pollution monitoring equipment may
lead regulated entities or air pollution control agencies to request assistance in understanding the
applicability or application of rule requirements. Also, regulated entities or air pollution control
agencies may require assistance with regard to certain inherently complex rule provisions or a
facility may require a site-specific response from the Agency as a result of specific activities
unique to the affected facility.
EPA receives many different types of requests related to these programs, including requests for
applicability determinations, regulatory interpretations, alternative test methods, and alternative
monitoring. The different types of requests addressed in this manual are discussed in more depth
in Sections 1.2 and 2.
Depending on the type and content of an incoming request, different offices within EPA will
participate in the development of a response to the request. The lead office is the office
responsible for responding to a given request and it is usually identified in a delegation of
authority from the EPA Administrator or subsequent redelegations of authority. EPA has devised
a system of tiers that help determine which office will take the lead in responding to a request
and which offices need to be consulted in developing a response to each type of request. Sections
1.3 and 1.4 further discuss delegations and the tiering system.
EPA's written responses to the requests discussed in this manual will be developed in accordance
with the Agency procedures discussed in Sections 1.5 and 3 of this manual.
1.2 Overview of Requests Addressed in this Manual
This manual addresses certain types of requests related to CAA sections 111,112, and 129 and
EPA's implementing regulations at 40 CFR parts 60, 61, 62, and 63.4 In other words, this manual
is restricted to NSPS, NESHAP, section 111(d) rules, and section 129 rules.5 This manual does
not address issues arising from other statutory or regulatory programs that EPA administers.
The requests addressed in this manual can be directly answered or granted by an EPA official
with delegated authority (or a delegated air agency official) without additional notice-and-
comment rulemaking procedures.6
This manual focuses on formal, written requests (i.e., signed letters) from a regulated entity or air
agency (or other stakeholder) to EPA, and on EPA's written responses to such requests, signed
4 The implementing regulations could also include provisions at 40 CFR parts 65 to the extent they are expressly
referenced by a regulation under part 60, 61, 62, or 63.
5 In the context of section 111(d) rules and the section 111(d) portion of section 129 rules, this manual addresses
requests related to EPA's Emission Guidelines, Federal Plans, and, in certain circumstances, State Plans.
6 Requests requiring additional procedures are not covered by this manual. For example, this manual does not
address requests for alternative emission limitations under CAA sections 111(h)(3) and 112(h)(3) and 40 CFR
63.6(g) and (h), as these requests involve additional procedures specified in the statute and regulations.
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by an EPA official with delegated authority. The tiering system and procedures described in
Sections 1.4, 1.5, and 3 of this manual do not apply to informal responses, advice,
recommendations, or analysis (e.g., phone discussions or email correspondence) provided by
EPA to air agencies or the regulated community, nor to other informal communications between
EPA and these entities. However, given that these informal inquiries are relatively common, and
because they sometimes develop into a more formal written request, informal inquiries are
discussed in Appendix A.
The types of requests addressed in this manual are discussed in more detail in Section 2. They
include the following:
1. Applicability determination (Section 2.1): An "applicability determination" is a final,
formal, written EPA decision issued in response to a request from a regulated entity
concerning the applicability of a regulation or portion of a regulation issued pursuant to
CAA sections 111, 112, or 129 to a specific source or facility owned and operated by the
requesting entity. Applicability determinations are based on consideration of the actual
site-specific operating conditions at the facility at issue, not on hypothetical operating
scenarios.
2. Regulatory interpretation (Section 2.2): A "regulatory interpretation" provides EPA's
interpretation of existing regulatory provisions issued pursuant to CAA sections 111,112,
or 129. A regulatory interpretation may be issued in response to a request from a
regulated entity, air agency, or other stakeholder. In addition, EPA may on its own
initiative determine that a regulatory interpretation is necessary to clarify a specific
provision in response to repeated questions.
3. Alternative test method (Section 2.3): An "alternative test method" is a requested
alternative to a test method designated in regulations issued pursuant to sections 111,
112, or 129 as the primary means of determining compliance with a standard. Requests
for alternative test methods are similar to, but must be carefully distinguished from,
requests for alternative monitoring.
4. Alternative monitoring (Section 2.4): "Alternative monitoring" refers to a requested
alternative to a monitoring requirement in regulations issued pursuant to sections 111,
112, or 129 that supplements a primary test method in order to assure continuous
compliance with a standard.
5. Other types of requests that adapt regulatory requirements to site-specific conditions
(Section 2.5). These requests take various forms and are based on either the NSPS or
NESHAP general provisions or a specific regulatory subpart. Some examples include
alternative recordkeeping and reporting requirements, alternative reporting schedules, test
plan review and approval, performance test waivers, performance test extensions (force
majeure), and technical compliance extensions, among others.
1.3 Overview of Delegations of Authority
EPA's regulations provide the EPA Administrator with authority for responding to various types
of requests related to the regulations discussed in this manual. In most cases, authority to respond
to these requests has been delegated (and often re-delegated) to the appropriate EPA official(s) or
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to other air agencies. Delegations of authority identify the EPA officials who are authorized to
respond to incoming requests, and thus the delegations are generally used to determine the office
that will take the lead in responding to an incoming request. Based on the delegations of
authority, EPA has developed a system of "tiers" to categorize incoming requests in order to
establish the appropriate lead office and consultation roles of other offices. Given that the
procedures described in this manual (including the tiering system discussed in Section 3) are
largely derived from the delegations of authority discussed in further detail below, any future
delegations of authority or revisions to existing delegations may impact such procedures.
1.3.1 Delegations of Authority Within EPA
The EPA Administrator has delegated the authority to respond to most NSPS or NESHAP -
related requests to regional or headquarters offices. Many of these delegations have been
redelegated, generally to the level of branch chief or equivalent. The procedures discussed within
this manual primarily relate to requests delegated within EPA. Appendix D contains
reproductions of the most relevant within-EPA delegations (identified in Table 1.1), along with a
list with hyperlinks to other relevant delegations (available to EPA employees on the EPA
intranet). Additional resources related to within-EPA delegations for different types of requests
can be found on EPA's intranet site at httvs://intranet.eva.gov/ohr/rmnolicy/ads/delegat.htm.
Table 1.1. Most Relevant Current Delegations of Authority
Within EPA (as of July 2020)
Authority
Delegation #
Agency Office Delegated
Applicability Determinations
EPA 7-127 (6/29/20)
OAR
Regional Offices
Alternative Test Methods (Minor)
EPA 7-119 (4/2/02)
Regional Offices
Alternative Test Methods (Major)
EPA 7-121 (4/2/02)
OAR
Alternative Monitoring
EPA 7-121 (4/2/02)
Regional Offices
1.3.2 Delegations Outside EPA
CAA sections 111(c) and 112(1) provide states the ability to request delegation of EPA's
authority to implement and enforce the NSPS and NESHAP programs. In practice, responsibility
for implementing and enforcing many aspects of the NSPS and NESHAP programs (and, in
slightly different ways, regulations under CAA sections 111(d) and 1298) has been delegated to
most air pollution control agencies. Procedures for EPA's delegation of part 63 NESHAP
authorities are detailed in 40 CFR part 63, subpart E. See, e.g., 40 CFR § 63.91.
The exact scope of each delegation varies by jurisdiction and is reflected in the delegation
agreement(s) between the EPA Region and the delegated air agency. A list of the state and local
7 There is no formal EPA delegation concerning regulatory interpretations.
8 Section 111(d) rules (that is, Emission Guidelines promulgated by EPA) are directly implemented by states
following EPA's approval of a section 111(d) State Plan. Alternatively, states may be delegated authority to
implement an EPA-issued Federal Plan. Section 129 rules are delegated or implemented in the same manner as
NSPS and section 111(d) rules, because section 129 rules contain both NSPS and 111(d) components.
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agencies that have been delegated authority to implement aspects of the NSPS and NESHAP
programs, along with information about which authorities or regulations have been delegated, is
provided in 40 CFR §§ 60.4(b)(1) and 63.99. However, these lists are in some cases outdated and
do not in every case specify the precise authorities that have been delegated to the listed air
agencies. Notices of delegations published by EPA in the Federal Register further clarify the
scope of these delegations, but these notices may have been superseded by later delegations.
EPA's Regional Office websites may have more up-to-date information about the current status
of relevant delegations, as noted in the following table. In order to determine the current
delegation status of a particular subpart or general provision, outside parties should contact the
appropriate EPA Regional Office.
Table 1.2. Regional Office Webpages with Delegation Information
Region 1
Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont
Region 2
New Jersev, New York, Puerto Rico, U.S. Virgin Islands
Region 3
(to be developed)
Region 4
(to be developed)
Region 5
Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin
Region 6
Arkansas, Louisiana, Oklahoma, New Mexico, Texas
Region 7
Iowa, Kansas, Missouri, Nebraska
Region 8
Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming, Southern Ute
Region 9
Arizona, California, Hawaii, Nevada
Region 10
Alaska, Idaho, Oregon, Washington
Many of these delegations provide the delegated air agency with the authority to respond to
certain types of routine requests discussed in this manual. In general, EPA does not delegate to
air agencies the authority to make decisions that are likely to be nationally significant, that
require additional rulemaking to implement, or that are specifically identified as nondelegable
within EPA regulations. For the part 63 NESHAP program, a list of delegable and nondelegable
authorities is codified at 40 CFR §§ 63.91(g)(1) and (2). Individual NSPS, NESHAP, section
111(d), and section 129 rules often further restrict the authorities that are delegable to air
agencies.
For all delegations of NSPS and NESHAP rules, EPA retains oversight and enforcement
authorities. Decisions that delegated air agencies make are not binding on EPA, and EPA retains
the authority for resolving and enforcing even those issues that have been delegated to air
agencies. Part 63 subpart E further specifies EPA's oversight of delegated NESHAP programs.
See 40 CFR § 63.91.
Additional resources related to delegations of authority to air agencies can be found on EPA's
public website at https: \\'\\'\\'.epa.2(>v caa-per milling delegation-clean-air-act-authority.
Historical EPA guidance documents may also provide helpful background on these topics,
although they should not be relied upon for current information regarding the delegation of a
specific general provision, subpart, or type of request. These documents include Good Practices
Manual for Delegation of NSPS and NESHAPS (1983) (available at
https: '/www3.epa.gov/ttn/atw 112(1) goodpracticesmanaal081009.pdf) and a series of five
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memoranda from 1982-1986 discussing part 60 and 61 delegable authorities (included as
Attachment 2 to the now-superseded 1999 Manual).
1.4 EPA's Tiering System
In order to ensure consistency in the development and oversight of EPA formal written responses
to requests related to NSPS, NESHAP, section 111(d), and section 129 rules, EPA developed a
system of "tiers" to categorize different types of incoming requests. Tiering is derived from the
delegations discussed in Section 1.3.
Each tier establishes the lead responsive office (whether headquarters, Region, or delegated air
agency) and consultation obligations (required or as-needed).9 Because most tiers accommodate
multiple types of requests, the precise office (e.g., OAR or OECA) with lead or consultation
roles will depend on the type of request, as discussed further in Section 2 (request-specific
discussion). Table 1.3 at the end of this Section further summarizes these lead office and
consultation roles for each type of request.
A single type of request (e.g., an applicability determination or alternative test method request)
may be associated with multiple different tiers, depending on the nature of the request.
Nationally significant requests are associated with lower-numbered tiers, and routine requests are
associated with higher-numbered tiers. In general, the tiering structure is as follows:
• Tier 1: Nationally significant or multi-regional responses, led by a HQ office, with
required consultation of other headquarters and Regional Offices.
• Tier 2: Responses led by a HQ office with as-needed consultation with other offices.
• Tier 3: Complex source-specific or region-specific requests, led by Regional Offices,
with required consultation with headquarters.
• Tier 4: Routine source-specific requests handled by EPA Regional Offices, with as-
needed consultation with headquarters.
• Tier 5: Routine source-specific requests delegated to and handled exclusively by
delegated air agencies, with optional consultation of Regional Offices.
The subsections below describe these tiers in more detail.
1.4.1 Tier 1
Summary: Multi-regional or nationally significant responses issued by a headquarters office
with required consultation of other offices.
Criteria: Tier 1 responses include both applicability determinations and regulatory
interpretations that are either multi-regional or nationally significant, as well as multi-regional or
nationally significant compliance extensions. Sections 2.1 and 2.2 discuss the differences
9 Even in cases where consultation is not required, good governance would in many instances call for reaching out
and obtaining input from other EPA offices.
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between the first two types of requests and criteria for determining whether a request is
nationally significant. In general, EPA anticipates that a relatively small proportion of
applicability determinations will meet Tier 1 criteria, whereas a relatively large proportion of
regulatory interpretations will meet Tier 1 criteria.
Lead Office and Consultation Roles: Tier 1 responses are issued by an EPA headquarters
office (OAR for most types of responses) with required consultation with other EPA
headquarters and Regional Offices. For example, nationally significant applicability
determinations are issued by OAR in consultation with OECA, OGC, and the affected Regional
Office(s).10 Specific lead office and consultation roles for each type of request are discussed
further in Sections 2.1 and 2.2.
1.4.2 Tier 2
Summary: Responses issued by a headquarters office with as-needed consultation of other
offices.
Criteria: Currently, the only types of requests that are included within Tier 2 are major (and
some intermediate) changes to test methods. See Section 2.3 for more information on
distinguishing requests for alternative test methods from other types of requests (e.g., alternative
monitoring) and determining whether such a request is major, intermediate, or minor.
Lead Office and Consultation Roles: EPA responses to Tier 2 requests are led by an EPA
headquarters office (OAR in the case of alternative test method determinations) and involve
consultation with other relevant offices on an as-needed basis. For example, OAR will consult
with OECA and the relevant regional Enforcement and Compliance Assurance Division (ECAD)
when an alternative test method response may have broader enforcement implications. See
Section 2.3 for more specific discussion of lead office and consultation roles related to changes
to test methods.
1.4.3 Tier 3
Summary: Complex source-specific or region-specific responses issued by Regional Offices,
with required consultation with headquarters.
Criteria: Many different types of requests considered by Regional Offices may be considered
Tier 3. In general, Tier 3 responses are not multi-regional or nationally significant (unlike the
headquarters-issued responses in Tiers 1 and 2), but are more complex and may have more
precedential significance than the routine responses issued by Regional Offices under Tier 4.
For example, Tier 3 applicability determinations (or, less frequently, regulatory interpretations)
issued by a Regional Office are those that do not rise to the Tier 1 level (i.e., are region-specific
and not nationally significant), but nonetheless raise complex issues or may not involve a
10 As noted in Section 2.1, such consultation with the Regional Office(s) is to include the opportunity for input from
ARD, ECAD, and ORC, although one of these offices (generally ARD) may coordinate the Regional Office's
collective feedback.
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straightforward application of existing EPA precedent. Additional examples of Tier 3 requests
are presented in Table 3.1. A more detailed discussion of the criteria for identifying Tier 3
requests is contained in the Section 2 discussions of each respective type of request.
Lead Office and Consultation Roles: Regional Offices are responsible for issuing Tier 3
responses in consultation with other offices. Most Tier 3 responses will be issued by the regional
Air and Radiation Division (ARD), with intra-office coordination with ECAD and ORC, but
specific roles and responsibilities within a Regional Office may vary depending on the type of
request and internal delegations and procedures. All Tier 3 responses involve required inter-
office consultation with EPA headquarters office(s). However, the precise consultation roles vary
for each type of request and are discussed further in the Section 2 discussions of each respective
type of request.
1.4.4 Tier 4
Summary: Routine source-specific responses handled by EPA Regional Offices, with as-needed
consultation with headquarters.
Criteria: As with Tier 3 requests, many different types of requests considered by Regional
Offices may be included within Tier 4. Often, the same type of request could be considered
either Tier 3 or Tier 4. In general, Tier 4 is reserved for routine requests that do not raise any
novel or complex issues that would warrant (or benefit from) headquarters involvement under
Tiers 1 or 3, respectively.
For example, minor changes to test methods or monitoring—to the extent they are approved by
EPA instead of a delegated air agency—are considered Tier 4 responses. Additional examples of
Tier 4 requests are presented in Table 3.1. A more detailed discussion of the criteria for
identifying Tier 4 requests is contained in the Section 2 discussions of each respective type of
request.
Lead Office and Consultation Roles: Tier 4 requests are handled by the EPA Regional Office
where the facility is located, without required consultation of other EPA offices. Coordination
within each Regional Office may vary region-by-region, according to internal regional
delegations and procedures.
Although consultation with other EPA offices is not required for Tier 4 requests, EPA Regional
Offices are encouraged to consult headquarters offices on a case-by-case basis if there is any
question as to whether the request should be considered Tier 4, when seeking additional
technical expertise or national perspective, and to confirm consistency with precedent. In such
cases, and provided the offices agree that the response is appropriately considered a Tier 4
response, the Regional Office remains the lead office responsible for developing and issuing the
response.
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1.4.5 Tier 5
Summary: Routine source-specific requests handled by delegated state, local, or tribal air
agencies, with optional consultation of their Regional Offices.
Criteria: The defining feature of a Tier 5 request is that it has been delegated to a state, local, or
tribal air pollution control agency. Any type of request that can be delegated to an air agency
could potentially be a Tier 5 request. However, not all requests are delegated or delegable to air
agencies. As discussed in Section 1.3.2, certain types of requests are expressly identified as non-
delegable in the NSPS or NESHAP general provisions, or by individual NSPS or NESHAP
subparts. EPA may also decide not to delegate certain other types of requests on a case-by-case
basis. Authority for responding to requests dealing with nationally significant, multi-regional,
controversial, or complex issues (i.e., requests meeting Tier 1-3 criteria) are generally not
delegated. However, the vast majority of routine requests (i.e., requests meeting Tier 4 criteria)
are delegated to air agencies.
Lead Office and Consultation Roles: Delegated state, local, and tribal air agencies are the first
point of contact for facilities with questions or requests pertaining to a NSPS, NESHAP, section
111(d), or section 129 rule. In responding to an appropriately-delegated request, these air
agencies need not follow any specific procedures (such as the procedures discussed in Section 3
of this manual, which exclusively relate to requests answered by EPA), although air agencies
may find some of EPA's procedures instructive. Delegated air agencies are also not required to
consult with EPA for routine Tier 5 requests. However, air agencies are welcome to, and often
do, reach out to the appropriate EPA Regional Office for assistance with Tier 5 requests. Such
consultation is often informal.
Delegated air agencies may also determine, in consultation with an EPA Regional Office, that it
would be more appropriate for EPA to respond to the request. If the facility and/or air agency
prefers a formal EPA response, the air agency should direct the facility to formally submit a
letter to EPA requesting an EPA response. Requests handled by EPA in this manner will be
treated according to the appropriate tier (1-4) for EPA responses.
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Table 1.3 Summary of Tiering. Lead Office, and Consultation Roles
Tier
Criteria: Type and Nature of Request
Lead Office
Consultation
1
Applicability determinations that are multi-
regional or nationally significant
OAR/OAQPS/
AQPD/OPG
(w/ SPPD)
Required: OECA, OGC,
affected Region(s)
Regulatory interpretations that are multi-regional
or nationally significant
OAR/OAQPS/SPPD
or OECA
Required: OECA (or
OAQPS), OGC, affected
Region(s) (where applicable)
Compliance extensions that are multi regional or
nationally significant
OECA
Required. OAQPS
As needed: OGC, affected
Region(s)
2
Alternative test methods: major (and some
intermediate)
OAR/OAQPS/
AQAD/MTG
As needed: OECA, OGC,
affected Region(s)
Performance test extensions that are nationally
significant
OECA
As needed: OAQPS, OGC,
affected Region(s)
3
Applicability determinations that are region-
specific and not nationally significant, but which
raise complex technical, policy, or legal issues
Region (if ARD,
with ECAD and
ORC input)
Required: OAQPS, OECA
As needed: OGC
Regulatory interpretations that are not Tier 1
Alternative test methods: some intermediate
Required: OAQPS
As needed: OECA, OGC
Alternative monitoring: major (and some
intermediate)
Required: OECA, OAQPS
As needed: OGC
Alternative recordkeeping/reporting: major
Performance test extensions (force majeure) that
are regionally-applicable but complex
Required: OECA
As needed: OAQPS, OGC
Compliance extensions that are regionally-
applicable but complex
4
Applicability determinations that are region-
specific and do not raise novel or complex issues
Region
As needed
Alternative test methods: intermediate, minor
Alternative monitoring: intermediate, minor
Alternative recordkeeping/reporting: minor
Alternative reporting schedules
Test plan approvals
Performance test waivers
Performance test extensions (force majeure)
that are routine and consistent with precedent
Compliance extensions that are routine and
consistent with precedent
Other general provision or subpart-specific
requests that are delegated to a Regional Office
5
Any Tier 4 items (routine requests including
applicability determinations, minor and
intermediate changes to test methods and
monitoring, test methods and monitoring waivers,
and other requests) that have been specifically
delegated to an air agency.
Delegated
air agency
As needed
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1.5
Overview of Procedures for Addressing Formal Written Requests
Formal written requests related to a NSPS, NESHAP, section 111(d), or section 129 rule that are
submitted to EPA should be processed according to the procedures summarized in this section
and discussed in Section 3. The procedures in this manual do not apply to informal inquiries (see
Appendix A), requests that require notice-and-comment rulemaking to fulfill, requests related to
other regulatory programs, or requests to which delegated air agencies respond.
Phase 1: Receiving, Tracking, Tiering, and Assigning Incoming Requests.
The first phase begins with EPA's receipt of a written request. The EPA office receiving a
request is responsible for confirming some basic details about the request, including whether the
request is something to which EPA should formally respond in writing.
Upon receipt, the recipient office is also responsible for adding the request to the National
Tracking System housed on SharePoint, which is managed by OAR and accessible to relevant
staff agencywide. Through the National Tracking System, the recipient office (and potentially
other offices) will determine the appropriate tier and lead office for the request. Any decisions
during this process should be made consistent with this manual and current delegations of
authority. Once a final decision on the lead office assignment has been made, the request and all
supporting information should then be transmitted to the appropriate lead office.
The final tiering decision will also establish any necessary consultation roles. At this time, the
lead office should identify staff contacts from all consulting offices and, for more involved
responses, should establish a temporary staff workgroup to facilitate consultation.
Phase 2: Developing EPA's Response.
Once the appropriate lead office staff is assigned to the request, the lead staff should begin
researching the issue(s). Other lead staff responsibilities include developing an initial written
response consistent with the guidelines presented in this manual, ensuring that consultation
within and among EPA offices is conducted consistent with this manual, and updating EPA's
National Tracking System. After consultation is completed, the lead staff will develop a final
written response that addresses, as appropriate, input obtained during the consultation process,
and will ensure that EPA's final response is signed by the EPA official with delegated authority.
Phase 3: Post-Signature Procedures. The lead office should distribute the signed response to
the requestor, with electronic cc's to the consulting offices, other interested EPA offices, and
delegated air agency. In most cases, the lead office should also prepare and upload certain
material necessary for OAQPS to post the response to EPA's Applicability Determination Index
(ADI). OAQPS will coordinate periodic updates to the AD I, along with periodic Federal
Register notices announcing recent EPA responses.
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Section 2. Distinguishing Incoming Requests
As discussed in Section 1.2, this manual addresses the process for responding to certain types of
requests, but not others. To summarize, the scope of this manual is limited to:
• Requests related to NSPS, NESHAP, section 111(d), and section 129 rules, but not
requests related to other statutory or regulatory programs;
• Requests that can be directly answered or granted by an EPA official with delegated
authority or delegated air agency, but not requests that require additional notice-and-
comment procedures;
• Formal written requests from a source, air agency, or other stakeholder requesting EPA
input, but not informal inquiries (informal inquiries are discussed in Appendix A).
The four most common types of requests that fit these criteria—applicability determinations,
regulatory interpretations, alternative test methods, and alternative monitoring—are discussed in
detail below, followed by a brief discussion of other types of commonly-received requests that
should also generally follow the procedures specified in this manual.
This Section describes each type of request (including key characteristics that distinguish one
type of request from another, as well as examples), the regulatory authority governing each
request, and the delegations and tiering system that establish the lead EPA office with primary
responsibility for responding to each type of request.
2.1 Applicability Determinations
Description: Applicability determinations11 are source-specific, fact-based (non-hypothetical),
written responses concerning whether a particular NSPS, NESHAP, section 111(d), or section
129 rule12 (or a portion of such a rule) applies to a given source or activity. Applicability
determinations are issued by an Agency official with authority delegated from the EPA
Administrator, in response to a request from a source owner/operator, and conclusively define
the applicability of a rule or part of a rule to a given source or activity. Formal written
applicability determinations issued by EPA are enforceable final agency actions, subject to
judicial review under CAA section 307(b)(1).
11 The term "applicability determination" has been used informally in the past as a shorthand term to refer to other
requests or responses that do not have the same legal effect as a formal written applicability determination. Use of
the term "applicability determination" in this manual refers exclusively to the formal written requests and EPA
responses described in this subsection. Most applicability-related requests and responses that are not technically
"applicability determinations" will be considered regulatory interpretations, as discussed below. Informal inquiries
(emails and phone calls) discussed in Appendix A are also not considered applicability determinations, even though
they may concern applicability issues.
12 In the section 111(d) context (and in the context of the section 111(d) portion of section 129 rules), applicability
determinations typically relate to the applicability of the rule as a whole (i.e., whether a source is subject to the
Emission Guidelines and, by extension, the State or Federal Plan implementing them), or to the applicability of a
specific provision in a Federal Plan. As discussed further below, care must be taken when responding to
applicability determination requests that relate in whole or in part to an Emission Guideline.
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Care must be taken to distinguish an applicability determination from a regulatory interpretation,
which may also concern issues related to the applicability of a rule (as discussed in Section 2.2).
The primary difference is that an applicability determination is site-specific and fact-specific,
based on detailed and non-hypothetical factual information about the source, in response to an
explicit request from a source, and conclusively resolves the applicability issue for that specific
source. By contrast, regulatory interpretations may be more broadly applicable, based on limited
or hypothetical information, or based on an inquiry from a delegated state or other interested
stakeholders. Regulatory interpretations are not binding; only formal applicability determinations
directly resolve questions of applicability with respect to a particular source. A request from a
source nominally described as an applicability determination may ultimately be treated and
clarified by EPA as a regulatory interpretation if, for example, the source is unable to provide
sufficient factual information for EPA's consideration or if EPA determines that a more broadly-
applicable interpretation is warranted. On the other hand, a request that is initially characterized
as a regulatory interpretation may eventually be more appropriately handled as an applicability
determination if sufficient facts become available to EPA (and if the source explicitly requests a
determination).
Because applicability may be based on different criteria, applicability determinations may
involve different types of issues:
First, applicability determinations may relate to whether a particular activity would trigger
applicability of a rule. Applicability of section 111,112, and 129 rules is based on when a source
began operations or commenced construction, reconstruction, or (for certain rules) modification.
Accordingly, some applicability determinations consider whether a planned or past action by a
source would constitute construction, reconstruction, or modification, or the commencement
thereof. For example, EPA has considered whether the installation of a new boiler to replace a
refinery's two existing boilers constituted construction of a new fuel gas combustion device,
subject to NSPS subpart J.13 As another example, EPA has considered whether the conversion of
an external floating roof oil storage tank to an internal floating roof tank would constitute
reconstruction, subject to NSPS subpart Kb.14 Additionally, the date that construction,
reconstruction, or modification is commenced may determine which rules apply to a facility. For
example, applicability determinations under section 129 rules may address whether a facility is
considered a new source subject to the NSPS portion of the 129 rule or an existing source
covered by the Emission Guidelines.
Second, applicability determinations may relate to whether a source or activity is subject to a
specific rule. Each section 111,112, and 129 rule applies to a specifically defined type (or types)
of source—the "affected facility" for NSPS, "designated facility" for section 111(d) rules,
"affected source" for NESHAP, or other terms used in individual subparts. Accordingly, many
13 Kern County Refinery, Inc., ADI Control Number J017 (July 7, 1981), available at
https://cfpub.epa.sov/adi/index.cfm? fuseaction=home.dsp show file contents&CFlD=126082776&CFTOKEN= 72
435197&id=JQ]7 "
14 Chevron Products Company, ADI Control No. 0600037 (June 7, 1999), available at
https://cfpub.epa.sov/adi/index.cfm?fuseaction=home.dsp show file contents&CFlD=127293407&CFTOKEN=46
051444& id=060003 7
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applicability determinations address the threshold question of whether the source falls within the
scope of the affected facility, designated facility, or affected source, as defined in a source
category-specific regulation or combination of regulations. For example, EPA has considered
whether a trash tank at a rice processing plant was an affected facility, subject to NSPS subpart
DD.15 As another example, EPA has considered whether certain valves at a compressor station
were part of an affected facility, subject to NSPS subpart OOOOa.16
Third, applicability determinations may relate to the applicability of a specific provision within a
regulation to which a source is subject. Regulations often contain multiple distinct regulatory
requirements that only apply to sources or activities meeting specified criteria. This type of
applicability determination—concerning whether a source is subject to a specific regulatory
requirement within an applicable subpart—must be carefully distinguished from regulatory
interpretations, which may ask similar questions concerning how a specific requirement applies
to a source.
Special care must be taken when responding to—or considering whether to respond to—
applicability determination requests in certain circumstances. In each of the situations described
in the following paragraphs, determining whether and how to proceed will involve case-by-case
consideration and, in most situations, consultation with other offices. As a general principle,
EPA is not obligated to respond to a request exactly as framed by the requestor and has
flexibility to tailor a response to the circumstances.
First, as noted above, certain requests that nominally pertain to a single source may involve more
broad-ranging EPA policies or interpretations. For these requests, EPA may consider addressing
the underlying issues through a different mechanism than a source-specific applicability
determination, such as a regulatory interpretation or change to the regulatory text.
Second, care should be taken when addressing requests for applicability determinations related to
section 111(d) or 129 rules for existing sources. Such requests typically concern EPA's Federal
Plans or Emission Guidelines. Because EPA's Emission Guidelines do not themselves establish
binding requirements, care should be taken in issuing applicability determinations for existing
sources where a State Plan has not been approved and a Federal Plan has not been promulgated.
For example, such an applicability determination could speak to whether the facility is the type
of "affected facility" addressed by the Emission Guidelines, or to the applicability of a specific
provision within EPA's Emission Guidelines.17 Provided that circumstances do not change at the
facility, such a determination may be relevant to whether the source is subject to a future-
promulgated Federal Plan, or whether the source should be included in a future State Plan
15 Producers Rice Mill, ADI Control No. 0000016 (February 23, 2000), available at
https://cfpub.epa.sov/cidi/index.cfin?fuseaction=home.dsp show file contents&CFlD=126084534&CFTOKEN=53
273318&id=00000.16.
16 Thomaston Compressor Station (August 19, 2019) (upload to ADI forthcoming).
17 See, e.g., MaxWest Environmental Systems, Inc., ADI Control No. FP0004 (December 19, 2013), available at
https://cfpub.epa.sov/adi/index.cfm?fuseaction=home.dsp show file contents&CFlD=126652990&CFTOKEN=98
981573& id=FP00004.
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submitted for EPA approval.18 Relatedly, EPA is not aware of any prior requests explicitly
asking EPA to determine whether a specific State Plan (or a provision within a specific State
Plan) applies to a specific source. In the event EPA receives such a request, the lead office will
consult with OGC/ORC to determine whether and/or what type of EPA response would be
appropriate.
Third, applicability determinations may be issued either before or after a regulated entity has
undertaken an action related to the construction, reconstruction, or modification of the equipment
in question. However, the means for responding to inquiries after the action in question has
occurred (sometimes referred to as a post hoc request) requires special consideration given the
potential for an enforcement action. For these post-hoc requests—and particularly those where
EPA concludes that a particular regulation is applicable—it is important to consider alternatives
to issuing an applicability determination, such as: a letter of acknowledgment to the source of
their inquiry, pending further action; a preliminary warning letter to the source that puts the
source on notice that the action as described may constitute a violation, without finally deciding
the issue; or proceeding directly with an enforcement action.
Fourth, and relatedly, when EPA receives an applicability determination request, the lead office
will notify the regional EC AD and OECA to determine whether there is an ongoing or pending
enforcement action involving the same facility or involving the same issue at other facilities. If
there is no enforcement action that encompasses or otherwise involves the issue(s) raised in the
applicability determination request, the lead office may move forward with developing EPA's
response following the inter-office consultation process. If the applicability determination
request is related to an ongoing or potential enforcement action where EPA or the delegated air
agency has provided notice of a potential violation (e.g., through a Notice of Violation, Notice of
Potential Violation, in-person meeting, conference call, letter of concern, etc.), the lead office
(regional ARD or OAR) will discuss with the relevant enforcement office (regional EC AD or
OECA) the appropriate next steps. The lead office will obtain concurrence from the relevant
enforcement office before issuing the applicability determination. If concurrence cannot be
achieved at the staff level, issuance of the applicability determination will be elevated to higher
management.
Authority: The general provisions of the NSPS (40 CFR § 60.5) and part 61 NESHAP (40 CFR
§ 61.06)19 provide that a source owner or operator can request a determination of whether certain
actions constitute construction (including reconstruction), modification, or the commencement
thereof, and accordingly whether a particular NSPS or NESHAP is applicable to the source. The
part 62 general provisions incorporate section 60.5 by reference, and therefore provide the same
opportunity for section 111(d) and section 129 State and Federal Plans. See 40 CFR
§ 62.02(b)(2); 66 FR 32484, 32494 (June 14, 2001). In addition to construction/ reconstruction/
modification issues under parts 60, 61, and 62, facilities routinely ask other questions concerning
the applicability of NSPS, NESHAP (including part 63), section 111(d), and section 129 rules. It
18 Please note that 40 CFR §§ 60.25(a) and 60.25a(a) require that: "(a) Each plan shall include an inventory of all
designated facilities, including emission data for the designated pollutants and information related to emissions as
specified in appendix D to this part."
19 The part 63 NESHAP regulations do not contain a similar provision.
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has been longstanding EPA practice to be responsive to these incoming questions and provide
the requested compliance assistance.
Delegation and Tiering: EPA Delegation 7-127 (June 29, 2020) provides the Assistant
Administrator of OAR and the Regional Administrators with authority to respond to applicability
determinations for regulations issued under CAA sections 111,112, or 129 (i.e., 40 CFR parts
60, 61, 62, and 63). The appropriate lead office for responding to an applicability determination
will depend on the complexity and significance of the request and the potential response.
Accordingly, applicability determinations may be categorized as a Tier 1, 3, 4, or 5 action, as
discussed below.
Applicability determinations that meet one of the following criteria are considered multi-regional
or nationally significant:20
1. Multi-regional: Responses that either explicitly relate to multiple sources in different
EPA Regions,21 or that nominally involve a single facility but are likely to have
implications for similar facilities located in other states and regions;
2. Precedential character: Responses that are likely to impact sources beyond the source
that is the subject of the request; raising either significant novel positions or positions
contrary to prior precedent;
3. Substantial external interest: Responses that are expected to generate substantial
external interest, e.g., due to significant environmental/health impacts of the facility
addressed;
4. Contentious: Responses that are expected to be highly contentious or controversial, e.g.,
by industry (such responses may be better received if issued by a headquarters office)
OAR has been delegated authority from the EPA Administrator to respond to applicability
determinations that are either of a multi-regional nature or of national significance (Tier 1). This
authority has been redelegated to the Director of the Office of Air Quality Planning and
Standards (OAQPS). The Operating Permits Group within the Air Quality Policy Division
(AQPD) will lead development of all Tier 1 applicability determinations, in coordination with
the appropriate standard-setting group in the Sector Policies and Programs Division (SPPD) of
OAQPS (such intra-office discussions are referred to as "coordination" throughout this manual).
Tier 1 applicability determinations also require inter-office consultation with OECA, OGC, and
the affected Region.22
20 Determining whether an applicability determination meets these criteria may not always be readily apparent to the
office receiving a request (generally the Regional Office). As discussed in Section 3.4, the office in receipt of an
applicability determination request may solicit input from headquarters as to the appropriate tier.
21 Applicability determinations are, by definition, source-specific, but could potentially address multiple sources in
different locations.
22 Consultation with the Regional Office(s) should include the opportunity for input from all relevant portions of the
office, including ARD, ECAD, and ORC, although one of these offices (generally ARD) may coordinate the
Regional Office's collective feedback.
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The EPA Regional Administrators have been delegated authority to respond to determinations
that are region-specific and not nationally significant. Redelegations within each Region may
vary, but this authority is usually redelegated within either ARD or EC AD.23
Regional responses that raise complex technical, policy, or legal issues are Tier 3 responses.
When Tier 3 responses are issued by the regional ARD, such responses are to be coordinated
with EC AD (to confirm that there are no ongoing or pending enforcement actions related to the
facility) and ORC. Tier 3 responses also require inter-office consultation with OAR/OAQPS and
OECA. For Tier 3 responses, ORC (or another office, including OAR or OECA) may consult
with OGC at its discretion.
Regional responses that contain no novel or complex issues and consistently apply existing
precedent are Tier 4 responses. Although Tier 4 applicability determinations may not involve the
same level of intra-office coordination or inter-office consultation as a Tier 3 request, when the
regional ARD is responsible for issuing an applicability determination, ARD should confirm
with EC AD that there are no ongoing or pending enforcement actions related to the facility. For
Tier 4 responses, Regional Offices may also extend consultation to other offices on an as-needed
basis. Consultation is encouraged if any questions arise during the process that might benefit
from additional technical expertise or national perspective, or to ensure consistency with
precedent.
Externally, authority to respond to routine applicability questions meeting Tier 4 criteria may
also be specifically delegated to air pollution control agencies (Tier 5) that take delegation of the
program.24 As noted in Section 1.3.2, applicability-related findings made by delegated air
agencies are not binding on EPA. These applicability-related findings made by delegated air
agencies are typically established through less formal mechanisms, including the permitting
process, as discussed in Appendix B.
Table 2.1. Tiering of Applicability Determinations
Criteria
Tier
Lead Office
Consultation
Multi-regional or nationally significant
(Multi-regional, precedential,
substantial external interest, contentious)
1
OAR/OAQPS/AQPD/OPG
(w/ SPPD)
OECA, OGC,
affected Region
Region-specific and not nationally significant,
but complex technical/ policy/ legal issues
3
Region (usually ARD w/
ECAD, ORC)
OAQPS, OECA
(as needed, OGC)
Routine; no novel or complex issues
4
Region25
(As needed)
Routine; delegated to air agency
5
Delegated air agency
(As needed)
23 For most of the requests addressed in this manual, roles and responsibilities are based on the assumption that ARD
will take the lead, coordinating (when appropriate) with ECAD. Where ECAD takes the lead, ARD should receive
similar opportunities for input.
24 As explained above, the term "applicability determinations" refers only to EPA-issued determinations meeting
certain criteria. Thus, for purposes of this manual, similar determinations by delegated air agencies are not referred
to as applicability determinations, but instead as "findings" related to applicability.
25 As noted above, if ARD is responsible for issuing an applicability determination, ARD should confirm with
ECAD that there are no ongoing enforcement actions related to the facility.
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2.2 Regulatory Interpretations
Description: Regulatory interpretations clarify regulatory requirements or policies concerning
existing regulatory provisions, and may relate to a broad range of topics associated with a NSPS,
NESHAP, section 111(d), or section 129 rule.26 EPA may issue regulatory interpretations by, for
example, letter or memoranda, usually in response to a written request from a regulated entity, an
industry group, or air agency. Some regulatory interpretations may be considered "guidance
documents" or "significant guidance documents" subject to additional requirements based on
Executive Order 13891 (Oct. 9, 2019) and regulations that implement this EO.
Regulatory interpretations often concern questions related to the applicability of a rule or portion
of a rule. Thus, care must be taken to distinguish regulatory interpretations from applicability
determinations. When compared to an applicability determination, a regulatory interpretation
will either be more broadly applicable (e.g., concerning an entire source category or type of
technology, not just a single source) and/or based on hypothetical or limited factual information
(although purely hypothetical questions are generally addressed informally). Also, as explained
above, while applicability determinations may address whether a source is subject to a specific
regulatory requirement within an applicable subpart, regulatory interpretations may address
similar questions concerning how a specific requirement applies to a source. Unlike applicability
determinations, regulatory interpretations are not binding, do not constitute final agency action,
and do not directly resolve questions of applicability for a specific source.
Regulatory interpretations may also concern issues beyond applicability and can relate to
essentially any portion of a regulation. For example, regulatory interpretations could involve
questions about the type of testing, monitoring, recordkeeping, or reporting that applies to the
source category, such as how often sources are required to sample fuel, or how monitoring data
must be reported. The key difference between such regulatory interpretations and alternative test
methods or monitoring is that regulatory interpretations only explain existing regulatory
requirements and do not provide for alternatives or changes to existing requirements.
For example, EPA has issued a regulatory interpretation clarifying how to determine compliance
with a limit in the part 61 subpart F NESHAP for Vinyl Chloride.27
EPA occasionally issues letters or memoranda that are not characterized as regulatory
interpretations, but which address aspects of a regulation under CAA sections 111, 112, or 129 in
a manner similar to a regulatory interpretation. In issuing these other types of responses, EPA
should follow similar internal procedures as it would when issuing a regulatory interpretation.
Authority: EPA's authority to provide interpretations of its regulations and to develop policies,
technical documents, and other compliance assistance materials related to the implementation of
these regulations is an inherent aspect of the Agency's rulemaking authority and is not based on
26 Regulatory interpretations issued by EPA with regard to a section 111(d) rule (including the 111(d) portion of a
section 129 rule) are limited to Emission Guidelines and Federal Plans; EPA does not issue regulatory
interpretations regarding the provisions of an EPA-approved State Plan.
27 Memorandum from Ken Gigliello, Acting Director, Compliance Assessment and Media Programs Division,
Office of Compliance, EPA (November. 6, 2008).
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any specific statutory or regulatory provisions. EPA issues regulatory interpretations of NSPS,
NESHAP, section 111(d), and section 129 rules in accordance with EPA's responsibilities to
provide compliance assistance.
Delegation and Tiering: Although delegated air agencies often answer routine questions about a
NSPS, NESHAP, section 111(d), or section 129 rule, only EPA may clarify the Agency's
interpretations and policies related to these rules.28 Thus, the regulatory interpretations discussed
in this manual are issued exclusively by EPA. Regulatory interpretations are not governed by a
specific EPA internal delegation.
Multi-regional or nationally significant regulatory interpretations—determined using the same
criteria as for applicability determinations (multi-regional, precedential, substantial external
interest, or contentious)—are Tier 1 responses led by an EPA headquarters office. Given that
regulatory interpretations, by their nature, clarify the requirements of nationally-applicable
regulations, most will be nationally significant and issued by an EPA headquarters office.
Regulatory interpretations are most commonly issued by the relevant standard-setting group
within OAR/OAQPS/SPPD, with required consultation with OECA, OGC, and, in circumstances
where the interpretation is especially relevant to a Region or Regions, the affected Region(s).
In certain circumstances, a different HQ office may take the lead in developing and issuing a
regulatory interpretation, with similar consultation obligations. For example, OECA may issue a
regulatory interpretation that primarily concerns compliance-related provisions of a regulation—
such as monitoring, recordkeeping, or reporting requirements—in consultation with OAR, OGC,
and any affected Region(s).
Although less common, a Regional Office may also issue a regulatory interpretation in limited
cases where the interpretation concerns issues that are not multi-regional or nationally
significant. For example, a letter that addresses the meaning of a regulatory requirement in a
manner relevant to a specific facility—but which does not definitively resolve the applicability
issue, and which accordingly would not be considered an applicability determination—could be
considered a Tier 3 regulatory interpretation. Such Tier 3 responses are to include input from
ECAD and ORC and require consultation with OAR/OAQPS and OECA. For Tier 3 responses,
ORC may determine whether consultation with OGC is necessary. Criteria for tiering are
included in the table below.
28 States may provide interpretations of EPA-approved State Plans implementing a section 111(d) or section 129
rule, provided such interpretation is not contrary to EPA's Emission Guidelines or conditions upon which EPA
approved a State Plan.
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Table 2.2. Tiering of Regulatory Interpretations
Criteria
Subcriteria
Tier
Lead Office
Consultation
Multi-regional or
nationally significant
(Multi-regional,
precedential,
substantial external
interest, contentious)
Related to
applicability or most
other topics
1
OAR/OAQPS/
SPPD
OECA, OGC
(where applicable,
affected Region(s))
Compliance or
enforcement-related
(uncommon)
OECA
OAR OGC
(where applicable,
affected Region(s))
Not multi-regional or
nationally significant
All
3
Region
(w/ ECAD, ORC)
OAQPS, OECA
(as needed, OGC)
2.3 Alternative Test Methods
Description: Requests for alternative test methods (including major, intermediate, and minor
changes29) involve changes to a test method or testing procedures designated in a NSPS,
NESHAP, section 111(d), or section 129 rule30 as the primary means for determining compliance
with an emission standard.
EPA regulations define "test method" as "the validated procedure for sampling, preparing, and
analyzing for an air pollutant specified in a relevant standard as the performance test procedure."
40 CFR § 63.2. Test methods are designated in each NSPS, NESHAP, section 111(d), or section
129 rule as the primary means for determining compliance with an emission standard. An initial
or periodic performance test that directly measures emissions is the most common form of test
29 The definitions contained in the part 63 (NESHAP) general provisions related to test methods are more detailed
than similar definitions in the part 60 general provisions (to the extent part 60 has such definitions). Therefore, EPA
applies the principles in the relevant part 63 definitions to discussions of changes to test methods under all of the
regulatory programs addressed in this manual, including NESHAP, NSPS, section 111(d), and section 129 rules. For
example, while part 60 describes changes in a test methodology as a minor change, an equivalent method, or an
alternative method (see 40 CFR § 60.8(b)), part 63 describes the changes as major, intermediate, or minor, as
defined at 40 CFR § 63.90. For purposes of determining the lead office and consultation roles according the process
set forth in this manual, each request for a change to a test method, whether under a section 111, 112, or 129 rule,
will be evaluated as a "major change to test method," "intermediate change to test method," or a "minor change to
test method" as defined at 40 CFR § 63.90.
30 Care must be taken when considering whether to respond to a request for an alternative test method that would
replace a provision in a section 111(d) or section 129 State Plan. This should involve a case-by-case evaluation of
whether the State Plan allows for such an alternative and should always involve consultation with ORC and/or OGC.
Additionally, because EPA's Emission Guidelines do not themselves establish binding requirements on sources, in
cases where a State Plan has not been approved and a Federal Plan has not been promulgated, care should be taken
in responding to alternative test method requests related to a section 111(d) or section 129 rule. EPA's response
could speak to permissible alternatives to the testing requirements contained in EPA's Emission Guidelines, but the
relevance of such a response to a future-approved State Plan or future-promulgated Federal Plan would need to be
assessed on a case-by-case basis. Alternatively, in certain situations (e.g., when EPA's Emission Guidelines provide
for flexibility on alternative test methods, or when a State Plan includes a different limit than EPA's Emission
Guidelines), alternative test methods could be embodied within an EPA-approved State Plan itself, obviating the
need for later case-specific alternative test method requests.
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method specified in NSPS, NESHAP, section 111(d), and section 129 rules. However, some
regulations specifically identify CEMS procedures as the performance test method (e.g., where
CEMS procedures are used for the initial stack test). Additionally, when a default test method is
replaced by something that might otherwise be considered monitoring (as discussed below), this
would be considered a change to a test method. See 40 CFR § 63.8(f)(4)(i). So, as a rule of
thumb, a change or modification to the procedures for any initial performance test, or any
substitute for such a performance test, would be considered an alternative test method.
EPA must differentiate between requests for alternative test methods and alternative monitoring.
Although some aspects of alternative test methods and alternative monitoring are similar, there
are important differences in how these requests are processed. Notably, unless waived by the
Administrator, the definition of alternative methods in part 63 specifies that alternative methods
must be validated using EPA Method 301,31 whereas major and intermediate changes to
monitoring do not; changes to monitoring must nonetheless also be accompanied by a
demonstration that the alternative would not decrease stringency. Additionally, only
OAR/OAQPS has been delegated the authority to approve major changes to test methods, while
EPA Regions have been delegated the authority to approve major changes to monitoring.
As noted above, test methods are identified as the primary means of determining compliance
with a standard. By contrast, additional means of determining compliance that supplement a test
method are considered monitoring. Monitoring provisions are usually longer-term and designed
to assure ongoing, continuous compliance with a standard after the completion of an initial
performance test or in between periodic performance tests. For example, where a standard
specifies that, in addition to a specific test method, a CEMS or parametric monitoring system
will be used to determine compliance with a standard, the CEMS or parametric monitoring
would be considered monitoring, not a test method. (As this example and the example in Section
2.4 show, a CEMS could be considered a test method, monitoring, or both, depending on how it
functions in relation to other requirements.) EPA Regional Offices are encouraged to consult
with the Measurement Technology Group (MTG) within the Air Quality Assessment Division
(AQAD) of OAQPS for assistance in determining whether a request concerns an alternative test
method or alternative monitoring.
For purposes of this document, changes or alternatives to test methods are classified as either
major, intermediate, or minor, as defined in 40 CFR § 63.90(a) and summarized in Table 2.3.
31 See 40 CFR § 63.7(f)(2)(ii). Although the part 60 general provisions were established prior to the development of
Method 301 and accordingly do not explicitly reference Method 301, the validation procedures in Method 301 are
also appropriate to demonstrate the suitability of alternative test methods under part 60, which requires that an
alternative method be "demonstrated to . . . produce results adequate for [the EPA Administrator's] determination of
compliance." 40 CFR § 60.2; see Section 1.0 of Method 301. Note that the Administrator may waive the
requirement for a Method 301 demonstration under Section 17.0 of Method 301.
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Table 2.3. Major, Intermediate, and Minor Changes to Test Methods32
Major*
Intermediate *
Minor (& reduced sampling
times/volumes)
Any of the following:
• Uses unproven technology
or procedures or
• Entirely new method or
• Broadly applicable (not
site-specific)
All of the following:
• Uses proven technology
• Within an existing method
• Site-specific
Plus, any of the following:
• Potential to set national
precedent or
• Potential to decrease
stringency of standard
All of the following:
• Uses proven technology
• Within an existing method
• Site-specific,
accommodating site-
specific constraints
• No national significance or
precedent
• No potential to decrease
stringency of standard
* Must be validated using EPA Method 301
Examples of major, intermediate, and minor changes to test methods are found in 40 CFR
§ 63.90(a), and include the following:33
Examples of major changes to a test method include, but are not limited to:
• Use of an unproven analytical finish;
• Use of a method developed to fill a test method gap;
• Use of a new test method such as one developed to apply to a control technology not
contemplated in the applicable regulation; and
• Combining two or more sampling/analytical methods (at least one unproven) into one for
application to processes emitting multiple pollutants.
Examples of intermediate changes to a test method include, but are not limited to:
• Modifications to a test method's sampling procedure including substitution of sampling
equipment that has been demonstrated for a particular sample matrix, and use of a
different impinger absorbing solution;
• 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
• "Combining" a federally required method with another proven method for application to
processes emitting multiple pollutants.
Examples of minor changes to a test method include, but are not limited to:
• Field adjustments in a test method's sampling 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
32 Note that the same criteria distinguishing between major, intermediate, and minor changes to test methods also
apply to distinguish between major, intermediate, and minor changes to monitoring, discussed in Section 2.4.
33 Similar examples of major, intermediate, and minor changes to monitoring (also found in 40 CFR § 63.90(a)) are
presented in Section 2.4.
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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.
Requests for shorter sampling times and smaller sampling volumes when necessitated by process
variables, as they relate to a primary test method, are similar to and processed in the same
manner as minor changes to test methods.
Note that sources may also request waivers from performance testing requirements in certain
circumstances. Performance test waivers are discussed separately in Section 2.5.4.
Requests for alternative test methods under NSPS and NESHAP are usually source-specific in
nature. However, EPA/OAR has given broad (national) approval to some alternative test
methods for use by any source that meets defined criteria. These broadly applicable approved
alternative test methods may be used without an additional request for EPA approval (the source
need only indicate the broadly applicable alternative in its pre-test plan and post-test report). For
a list of broadly applicable approved alternative test methods, see
httns:/Avww.ena.gov/emc/broadlv-anvlicable-anvroved-alternative-test-methods.
Substantive and procedural guidance on the submission and approval of requests for alternative
test methods can be found in the following document: hips://www 3.epa.gov/ltn/emc/guuBnd/gd-
022.pdf Note that minor changes to NESHAP test methods may be requested, and approved,
through the submission of a site-specific test plan, as discussed in Section 2.5.3. See 40 CFR
§ 63.7(e)(2)(i).
Authority: The general provisions of EPA's NSPS and NESHAP regulations authorize the EPA
Administrator to approve changes and alternatives to the test methods specified in NSPS and
NESHAP standards (these authorities also discuss requests for shorter sampling times and
smaller sampling volumes). See 40 CFR §§ 60.8(b), 61.13(h), 63.7(e)(2), 63.7(f). The part 62
general provisions incorporate section 60.8(b) by reference, and therefore provide the same
opportunity for section 111(d) and section 129 State and Federal Plans. See 40 CFR
§ 62.02(b)(2); 66 FR 32484, 32494 (June 14, 2001). Provisions in subpart E of part 63 further
provide for EPA's delegation of, and oversight over, state-issued alternative test method
decisions. See 63.91(g)(l)(i)-(ii). Definitions of relevant terms are included in 40 CFR §§ 60.2,
61.02, 63.2, and 63.90(a).
Delegation and Tiering: The EPA Administrator's authority to approve alternative test methods
has been delegated both within and outside EPA, depending on the nature of the change. The
delegated office with lead responsibility for responding to requests for alternative test methods
depends on whether the changes to a test method are considered major, intermediate, or minor,
as summarized in Table 2.3 above and defined in 40 CFR § 63.90(a) (reproduced in Appendix
C). EPA offices receiving a request for an alternative test method may consult with
OAR/OAQPS/AQAD/MTG to confirm whether the request constitutes a major, intermediate, or
minor change in test method.
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Internally, per «I1 \ relegation I J I the Assistant Administrator for OAR has authority over
all major changes to test methods (Tier 2). This authority has been further redelegated from the
OAR Assistant Administrator through the Director of OAQPS to the Group Leader of the
Measurement Technology Group in OAQPS. Although no consultation is required for these Tier
2 requests, OAR will consult with other offices (including OECA, OGC, or the affected Regional
Office) on an as-needed basis. For example, if an alternative test method request has the potential
for broader enforcement impacts, OAR will consult with OECA and the regional ECAD before
issuing a response.
Intermediate changes to test methods may be processed by either OAR (Tier 2), a Regional
Office (Tier 3 or 4), or a delegated air agency (Tier 5).34 Determining whether an intermediate
test method change should be considered Tier 2 (OAR) or Tier 3/4 (Region) largely depends on
the nature of the request as well as who receives the incoming request, and is contingent upon
internal agreement as to the appropriate lead office. Thus, the recipient of a request for an
intermediate change should, at a minimum, consult with the other relevant office to determine
the appropriate lead office. Further consultation shall be offered depending on the assigned tier.
Specifically, Tier 2 intermediate changes to test methods will be issued by OAR, with case-by-
case consultation with OECA, OGC, and/or the affected Region (similar to the procedures for
major changes to test methods discussed above). Tier 3 intermediate changes to test methods that
involve more complicated or potentially precedent-setting issues will be issued by the Regional
Office after intra-office coordination with ECAD and ORC (assuming ARD issues the response),
required inter-office consultation with OAQPS, and as-needed consultation with OECA and/or
OGC. Tier 4 intermediate changes to test methods that are more routine may be issued by a
Regional Office with as-needed consultation of other offices (or, as noted below, these routine
intermediate changes may be issued by a delegated air agency). EPA Regional Offices are
encouraged to consult with OAR/OAQPS/AQAD/MTG on an as-needed basis when complex
questions arise regarding alternative test method requests.
EPA Delegation I I '} specifies that Regional Administrators have authority over minor changes
to test methods and reduced sampling times or volumes (Tier 4). As with Tier 4 intermediate
changes, consultation for minor changes are not required.
Externally, minor changes to test methods (and reduced sampling times or volumes) are typically
delegated to air agencies (Tier 5), and intermediate changes to test methods are delegated as
appropriate (Tier 5). EPA's oversight over delegations of NESHAP to air agencies is specified in
40 CFR part 63, subpart E. Notably, EPA's regulations require that:
[T]he State must maintain a record of all approved alternatives to all monitoring,
testing, recordkeeping, and reporting requirements and provide this list of
34 Currently, Delegation 7-121 delegates authority to approve "alternative test methods"—a term which
encompasses both major and intermediate changes to test methods—to the Assistant Administrator of OAR.
Delegation 7-119 delegates authority to respond to "minor changes in test methodology"—a term which
encompasses minor changes to test methods—as well as shorter sampling times and smaller sampling volumes when
necessitated by process variables, to the Regional Administrators. See 1999 Manual at 17 n.5 (superseded by this
manual). EPA is currently working on revisions to Delegations 7-119 and 7-121 to more explicitly address
intermediate changes to test methods, and to align these delegations with the roles and responsibilities reflected in
this manual.
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alternatives to its EPA Regional Office at least semi-annually, or on a more frequent
basis if requested by the Regional Office. The Regional Office may audit the State-
approved alternatives and disapprove any that it determines are inappropriate, after
discussion with the State. If changes are disapproved, the State must notify the
source that it must revert to the original applicable monitoring, testing,
recordkeeping, and/or reporting requirements (either those requirements of the
original section 112 requirement, the alternative requirements approved under
[subpart E], or the previously approved site-specific alternative requirements).
Also, in cases where the source does not maintain the conditions which prompted
the approval of the alternative to the monitoring, testing, recordkeeping, and/or
reporting requirements, the State (or EPA Regional Office) must require the source
to revert to the original monitoring, testing, recordkeeping, and reporting
requirements, or more stringent requirements, if justified.
40 CFR § 63.91(g)(l)(ii).
Table 2.4. Tiering of Changes to Test Methods
Type
Criteria
Subcriteria
Tier
Lead
Office
Consultation
Major
Any of the following:
• Uses unproven technology or
procedures or
• Entirely new method or
• Broadly applicable (not site-
specific)
All major
2
OAR
(as needed,
OECA, OGC,
affected
Region(s))
Inter.
All of the following:
• Uses proven technology
• Within an existing method
Plus, any of the following:
• Potential to set national precedent or
• Potential to decrease stringency of
standard
Precedential/
complex
Precedential/
complex
3
Region
(w/ ECAD,
ORC)
OAQPS
(as needed,
OECA, OGC)
Routine
4/5
Region/
Delegated
Air Agency
(As needed)
Minor
All of the following:
• Uses proven technology
• Within an existing method
• Site-specific, accommodating site-
specific constraints
• No national significance or
precedent
• No potential to decrease stringency
of standard
All minor
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2.4 Alternative Monitoring
Description: Requests for alternative monitoring (including major, intermediate, and minor
changes35) involve changes to requirements that supplement a primary test method in order to
ensure continuous compliance with a NSPS, NESHAP, section 111(d), or Sectionl29 rule.36
Monitoring is defined in 40 CFR § 63.2, and used throughout this manual, to refer to the
collection and use of measurement data or other information to control the operation of a process
or pollution control device or to verify a work practice standard relative to assuring compliance
with applicable requirements. Monitoring is composed of four elements: (1) indicator(s) of
performance; (2) measurement techniques; (3) monitoring frequency, and (4) averaging time.
Each of these concepts is described further in section 63.2, reproduced in Appendix C.
As noted above, care must be taken to differentiate between requests for alternative monitoring
and requests for alternative test methods. Monitoring provisions may assure compliance with a
standard, but they are always secondary to and supplement an explicitly designated performance
test method. Monitoring provisions are usually longer-term, and they are designed to assure
ongoing, continuous compliance with an emission standard after the completion of an initial or
periodic performance test. Unlike test methods, which always provide direct evidence of
compliance, some monitoring methods may not provide direct evidence of compliance. EPA
Regional Offices are encouraged to consult with OAR/OAQPS/AQAD/MTG for assistance in
determining whether a request concerns an alternative test method or alternative monitoring.
Monitoring must also be distinguished from work practice or operational standards, which are
included in various NSPS, NESHAP, section 111(d), and section 129 regulations where emission
standards are infeasible. In some cases, a work practice standard—such as a requirement to
35 As noted above with respect to test methods, the definitions contained in the part 63 (NESHAP) general
provisions related to monitoring are more detailed than similar definitions in the part 60 general provisions (to the
extent part 60 has such definitions). Therefore, EPA applies the principles in the relevant part 63 definitions to
discussions of changes to monitoring under all of the regulatory programs addressed in this manual, including
NESHAP, NSPS, section 111(d), and section 129 rules. For example, while part 60 describes multiple different
examples of alternatives to monitoring requirements (see 40 CFR § 60.13(i)), part 63 describes the changes as
major, intermediate, or minor, as defined at 40 CFR § 63.90. For purposes of determining the lead office and
consultation roles according the process set forth in this manual, each request for a change to monitoring, whether
under a section 111, 112, or 129 rule, will be evaluated as a "major change to monitoring," "intermediate change to
monitoring," or a "minor change to monitoring" as defined at 40 CFR § 63.90.
36 Care must be taken when considering whether to respond to a request for alternative monitoring that would
replace a provision in a section 111(d) or section 129 State Plan. This should involve a case-by-case evaluation of
whether the State Plan allows for such an alternative and should always involve consultation with ORC and/or OGC.
Additionally, because EPA's Emission Guidelines do not themselves establish binding requirements on sources, in
cases where a State Plan has not been approved and a Federal Plan has not been promulgated, care should be taken
in responding to alternative monitoring requests related to a section 111(d) or section 129 rule. EPA's response
could speak to permissible alternatives to the monitoring requirements contained in EPA's Emission Guidelines, but
the relevance of such a response to a future-approved State Plan or future-promulgated Federal Plan would need to
be assessed on a case-by-case basis. Alternatively, in certain situations (e.g., when EPA's Emission Guidelines
provide for flexibility on alternative test methods, or when a State Plan includes a different limit than EPA's
Emission Guidelines), alternative test methods could be embodied within an EPA-approved State Plan itself,
obviating the need for later case-specific alternative test method requests.
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check for (and repair) leaks on a specified schedule, or the periodic inspection of tank seals—
could be mistaken for a monitoring requirement. However, work practice standards should be
located in the "standards," "design," or "emissions control" section of the relevant regulation
(and should be specifically identified in the preamble to the rule as a work practice standard),
whereas monitoring should be located in the "monitoring" section of the regulation. Also,
monitoring provisions are usually associated with (and assure compliance with) an emission limit
and test method, or a control standard for a process or pollutant, whereas work practice standards
take the place of such an emission limit or control standard. Distinguishing between these types
of requests is important because changes to work practice or operational standards may not be
reviewed through the streamlined provisions of alternative monitoring, but instead must meet the
statutory requirements and, if provided in the applicable rule(s), the regulatory requirements for
approving alternative means of establishing emission limitations. See Section 2.6 below.
For purposes of this document, changes to monitoring are classified as either major,
intermediate, or minor, as defined in 40 CFR § 63.90(a) and summarized in Table 2.5.
Table 2.5. Major, Intermediate, and Minor Changes to Monitoring37
Major
Intermediate
Minor
Any of the following:
• Uses unproven technology
or procedures or
• Entirely new method or
• Broadly applicable (not
site-specific)
Must demonstrate no
decrease in stringency.
All of the following:
• Uses proven technology
• Within an existing method
Plus, any of the following:
• Potential to set national
precedent or
• Potential to decrease
stringency of standard
Must demonstrate no
decrease in stringency.
All of the following:
• Uses proven technology
• Within an existing method
• Site-specific,
accommodating site-
specific constraints
• No national significance or
precedent
• No potential to decrease
stringency of standard
Examples of major, intermediate, and minor changes to monitoring are found in 40 CFR
§ 63.90(a), and include the following:38
Examples of major changes to monitoring include, but are not limited to:
• Use of a new monitoring approach developed to apply to a control technology not
contemplated in the applicable regulation;
• Use of a predictive emission monitoring system (PEMS) in place of a required
continuous emission monitoring system (CEMS);
• Use of alternative calibration procedures that do not involve calibration gases or test
cells;
37 Note that the same criteria distinguishing between major, intermediate, and minor changes to monitoring also
apply to distinguish between major, intermediate, and minor changes to test methods, discussed in Section 2.3.
38 Similar examples of major, intermediate, and minor changes to test methods (also found in 40 CFR § 63.90(a)) are
presented in Section 2.3.
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• Use of an analytical technology that differs from that specified by a performance
specification;
• Decreased monitoring frequency for a continuous emission monitoring system,
continuous opacity monitoring system, predictive emission monitoring system, or
continuous parameter monitoring system;
• Decreased monitoring frequency for a leak detection and repair program; and
• Use of alternative averaging times for reporting purposes.
Examples of intermediate changes to monitoring include, but are not limited to:
• Use of a CEMS in lieu of a parameter monitoring approach;
• Decreased frequency for non-continuous parameter monitoring or physical inspections;
• Changes to quality control requirements for parameter monitoring; and
• Use of an electronic data reduction system in lieu of manual data reduction.
Examples of minor changes to monitoring include, but are not limited to:
• Modifications to a sampling procedure, such as use of an improved sample conditioning
system to reduce maintenance requirements;
• Increased monitoring frequency; and
• Modification of the environmental shelter to moderate temperature fluctuation and thus
protect the analytical instrumentation.
Changes to monitoring requirements are often accompanied by corresponding changes to
recordkeeping and reporting requirements, and changes to recordkeeping or reporting have
previously been discussed under the blanket term "alternative monitoring." Changes to
recordkeeping or reporting may also be pursued independent of changes to monitoring if allowed
under the applicable rule. This manual separately discusses changes to recordkeeping and
reporting requirements in Section 2.5.1.
Authority: As with alternative test methods, general provisions of EPA's NSPS and NESHAP
regulations authorize the EPA Administrator to approve alternatives to the monitoring specified
in NSPS and NESHAP rules. See 40 CFR §§ 60.13(i), 61.14(g), 63.8(b)(1), and 63.8(f). The part
62 general provisions incorporate § 60.13 by reference, and therefore provide the same
opportunity for section 111(d) and section 129 State and Federal Plans. See 40 CFR
§ 62.02(b)(2); 66 FR 32484, 32494 (June 14, 2001). Provisions in subpart E of part 63 further
provide for EPA's delegation of, and oversight over, certain state-issued alternative monitoring
decisions. See 63.91(g)(l)(i)-(ii). Definitions of relevant terms are included in 40 CFR §§ 60.2,
63.2, and 63.90(a).
Delegation and Tiering: The EPA Administrator's authority to approve alternative monitoring
has been delegated both within and outside EPA. Internally, per EPA Delegation I, the
Regions have authority over all changes to monitoring. Determining the appropriate consultation
roles for alternative monitoring turns on whether the requested changes to monitoring are
considered major, intermediate, or minor, as summarized in Table 2.5 above. Full definitions of
these terms, as used in this document, are found in 40 CFR § 63.90(a) and reproduced in
Appendix C.
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Major changes to monitoring are considered Tier 3. These responses are issued by the Regional
Office after intra-office coordination with EC AD and ORC, required inter-office consultation
with OECA and OAQPS, and as-needed consultation with OGC. Notably, major changes to
monitoring cannot be delegated to air pollution control agencies.
Intermediate changes to monitoring approved by EPA may be considered either Tier 3 or Tier 4,
depending on the nature of the change. Tier 3 intermediate changes to monitoring that involve
more complicated or potentially precedent-setting issues will be issued by the Regional Office
after intra-office coordination with EC AD and ORC, required inter-office consultation with
OECA and OAQPS, and as-needed consultation with OGC. Tier 4 intermediate changes to
monitoring that are more routine may be issued by a Regional Office with as-needed consultation
of other offices (or, as noted below, these routine intermediate changes may be issued by a
delegated air agency).
All EPA-issued minor changes to monitoring are considered Tier 4, issued by a Regional Office
with as-needed consultation of other offices.
Externally, minor changes to monitoring are typically delegated to air agencies (Tier 5), and
intermediate changes to monitoring are delegated as appropriate (Tier 5). EPA's oversight over
these delegations is specified in 40 CFR part 63, subpart E. Notably, EPA's regulations require
that:
[T]he State must maintain a record of all approved alternatives to all monitoring,
testing, recordkeeping, and reporting requirements and provide this list of
alternatives to its EPA Regional Office at least semi-annually, or on a more frequent
basis if requested by the Regional Office. The Regional Office may audit the State-
approved alternatives and disapprove any that it determines are inappropriate, after
discussion with the State. If changes are disapproved, the State must notify the
source that it must revert to the original applicable monitoring, testing,
recordkeeping, and/or reporting requirements (either those requirements of the
original section 112 requirement, the alternative requirements approved under
[subpart E], or the previously approved site-specific alternative requirements).
Also, in cases where the source does not maintain the conditions which prompted
the approval of the alternatives to the monitoring, testing, recordkeeping, and/or
reporting requirements, the State (or EPA Regional Office) must require the source
to revert to the original monitoring, testing, recordkeeping, and reporting
requirements, or more stringent requirements, if justified.
40 CFR § 63.91(g)(l)(ii).
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Table 2.6. Tiering of Changes to Monitoring
Type
Criteria
Subcriteria
Tier
Lead
Office
Consultation
Major
Any of the following:
• Uses unproven technology or
procedures or
• Entirely new method or
• Broadly applicable (not site-
specific)
(all major)
3
Region
(w/ ECAD,
ORC)
OECA,
OAQPS
(as needed,
OGC)
Inter.
All of the following:
• Uses proven technology
• Within an existing method
Plus, any of the following:
• Potential to set national precedent or
• Potential to decrease stringency of
standard
Precedential/
complex
Routine
4/5
Region/
Delegated
Air Agency
(As needed)
Minor
All of the following:
• Uses proven technology
• Within an existing method
• Site-specific, accommodating site-
specific constraints
• No national significance or
precedent
• No potential to decrease stringency
of standard
(all minor)
2.5 Other Alternatives, Extensions, and Waivers
Both the general provisions governing NSPS and NESHAP rules (and, by incorporation, the
section 11 l(d)/129 general provisions), as well as certain individual NSPS and NESHAP rules
and section 11 l(d)/129 rules, contain additional opportunities for sources to request alternatives
in order to adapt regulatory requirements to site-specific conditions. These alternatives take
numerous forms, and an exhaustive treatment of all possible alternatives is beyond the scope of
this manual. Nonetheless, some of the more frequently encountered requests for alternatives that
are addressed in the tiering system and procedures discussed in this manual include:
• Alternative recordkeeping and reporting requirements (EPA. Delegate )
• Alternative reporting schedules (7-122)
• Test plans and performance evaluation test plans ( II , I A})
• Performance test waivers ( )
• Performance test extensions (force majeure) and rescheduling ( )
• Compliance deadline extensions ( )
• Other subpart-specific requests (e.g., alternative monitoring or operating parameters)
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As with other types of requests, delegations of authority both within and outside EPA dictate
which office has authority to respond to these requests. EPA Regional Offices and delegated air
agencies are responsible for responding to most of these requests (Tiers 3, 4, and 5). The method
for application and approval varies, but the method is usually specified in the relevant
regulations or guidance.
2.5.1 Alternative Recordkeeping and Reporting Requirements
As noted in Section 2.3, changes to monitoring requirements are often accompanied by
corresponding changes to recordkeeping and reporting requirements. Sources may also
independently request changes to recordkeeping or reporting requirements (i.e., without also
requesting alternative monitoring). The part 63 general provisions expressly provide for waiver
and changes to recordkeeping and reporting requirements separate and apart from changes to
monitoring. 40 CFR § 63.10(f). While there is no such provision in the Part 60, 61, or 62 general
provisions, EPA believes that the provisions for making changes to monitoring in the Part 60, 61,
and 62 general provisions also authorize changes to recordkeeping and reporting even where
there is no change to the underlying monitoring requirement. After all, recordkeeping and
reporting requirements are themselves forms of monitoring to assure compliance with the
underlying substantive standards. Whether accompanied by changes to monitoring or not,
requests for changes to recordkeeping or reporting are treated in a similar manner as requests for
alternative monitoring. For processing and intra-agency delegation purposes, requests for
changes to recordkeeping or reporting are classified as major or minor (there is no intermediate
classification), as defined in 40 CFR § 63.90(a) and summarized in Table 2.7.
Table 2.7. Major and Minor Changes to Recorc
keeping or Reporting
Major
Minor
Any of the following:
All of the following:
• Broadly applicable (not site-specific) or
• Site-specific
• Has national significance or
• No national significance or precedent
• Potential to decrease stringency of
• No potential to decrease stringency of
standard
standard
Examples of major and minor changes to recordkeeping and reporting are found in 40 CFR
§ 63.90(a), and include the following:
Examples of major changes to recordkeeping and reporting include, but are not limited to:
• Decreases in the record retention for all records;
• Waiver of all or most recordkeeping or reporting requirements;
• Major changes to the contents of reports; or
• Decreases in the reliability of recordkeeping or reporting (e.g., manual recording of
monitoring data instead of required automated or electronic recording, or paper reports
where electronic reporting may have been required).
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Examples of minor changes to recordkeeping or reporting include, but are not limited to:
• Changes to recordkeeping necessitated by alternatives to monitoring;
• Increased frequency of recordkeeping or reporting, or increased record retention periods;
• Increased reliability in the form of recording monitoring data, e.g., electronic or
automatic recording as opposed to manual recording of monitoring data;
• Changes related to compliance extensions granted pursuant to section 63.6(i);
• Changes to recordkeeping for good cause shown for a fixed short duration, e.g., facility
shutdown;
• Changes to recordkeeping or reporting that is clearly redundant with equivalent
recordkeeping/reporting requirements; and
• Decreases in the frequency of reporting for area sources to no less than once a year for
good cause shown, or for major sources to no less than twice a year as required by title V,
for good cause shown.
Authority for approving alternative recordkeeping and reporting requirements for part 63
standards is contained in 40 CFR § 63.10(f). Definitions of relevant terms are included in 40
CFR§ 63.90(a).
Determining the appropriate lead office and consultation roles for alternative recordkeeping and
reporting turns on whether the requested changes are major or minor, as summarized above.
Major changes to recordkeeping or reporting are considered Tier 3, issued by Regional Offices in
coordination with EC AD and ORC, required consultation with OECA and OAQPS, and as-need
consultation with OGC.
Minor changes to recordkeeping handled by EPA Regional Offices are considered Tier 4 (with
optional headquarters consultation). Minor changes to recordkeeping may also be handled by
delegated air agencies (Tier 5). Provisions in subpart E of part 63 provide for EPA's delegation
of, and oversight over, state-issued alternative recordkeeping, and reporting decisions. See
63.91 (g)( 1 )(i)—(ii).
2.5.2 Alternative Reporting Schedules
Sources may request to adjust the submittal date(s) for required NSPS and NESHAP reports,
without changing the frequency of required reporting. See 40 CFR §§ 60.19(c)-(f), 61.10(g)—(j),
63.9(i), 63.10(a)(5)-(7).
Per i "P \ relegation IJ J, EPA's approval of alternative reporting schedules has been delegated
to the Regional Offices, which may act without headquarters consultation (Tier 4). In most cases,
state and local agencies have been further delegated authority to approve alternative reporting
schedules (Tier 5).
2.5.3 Test Plans
Sources are required to develop, and, upon request from EPA or a delegated agency, to submit
for EPA or delegated agency approval a site-specific test plan prior to conducting performance
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testing for aNESHAP. See 40 CFR § 63.7(c).39 Similarly, as required by a relevant NESHAP
standard, and upon request from EPA or delegated agency, sources may be required to conduct a
performance evaluation of a continuous monitoring system used as monitoring or a test method.
See 40 CFR § 63.8(e)(1). As part of a performance evaluation, sources must submit a site-
specific performance evaluation test plan for EPA or delegated agency approval. 40 CFR §
63.8(e)(3).
Sources may request minor changes to test methods through submission of a site-specific test
plan, provided the same air agency is delegated authority to approve both minor changes to test
methods as well as test plans. See 40 CFR § 63.7(e)(2)(i); see also § 63.7(c)(3)(ii)(B).40 Any
other changes to test methods (i.e., major or intermediate changes) need to be separately
approved by the appropriate delegated authority prior to being included in a source-specific test
plan.
Per i "P \ relegation ^ I I (performance test plans) and I A) (performance evaluation test
plans for CEMSs), EPA's approval of site-specific test plans for NESHAP has been delegated to
the Regional Offices, which may act without headquarters consultation (Tier 4). In most cases,
air pollution control agencies have been further delegated authority to approve these test plans
(Tier 5).
2.5.4 Performance Test Waivers
A source may request waivers of NSPS and NESHAP performance testing requirements if the
source can demonstrate by other means to the Administrator's satisfaction that the source is in
compliance with the relevant standard, and for other reasons provided in the regulations. See 40
CFR §§ 60.8(b)(4), 61.13(h)( 1 )(iii), 63.7(e)(2)(iv), 63.7(h). Often, performance test waivers are
issued where multiple identical emission units (e.g. engines, turbines, or package boilers) are
similarly operated at a single facility. Occasionally, test waivers are issued for other reasons,
such as where a unit is infrequently used or where there are other ways to demonstrate
compliance.41
1 T \ Delegation I r" provides EPA Regional Offices the authority to approve requests for
performance test waivers (along with minor changes to test methodology, shorter sampling times
and smaller sampling volumes, and performance test conditions). Responding to such requests
does not require consultation with headquarters (Tier 4), but consultation with
OAR/OAQPS/AQAD/MTG is encouraged if the test waiver request raises complicated technical
issues, and consultation with OECA is encouraged if there are potential enforcement
39 Test plans may incorporate other site-specific elements related to assuring compliance with particular standards,
such as site-specific monitoring parameters or operating limits. See, e.g., Delegation 7-128: see also Section 2.5.7
below.
40 Regardless of the vehicle used to request a minor change to a test method (i.e. whether through a standalone
request or through a test plan), only air agencies with delegated authority to grant minor changes to test methods
may grant minor changes to test methods, and only air agencies with delegated authority to approve test plans may
approve test plans.
41 For additional information about performance test waivers, see EPA's National Stack Test Guidance (April 27,
2009), available at https://www.epa.sov/sites/production/ftles/2013-09/documents/stacktestins l.pdf
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implications. In most cases, air pollution control agencies have been further delegated authority
to approve performance test waivers (Tier 5).
2.5.5 Performance Test Extensions (Force Majeure)
Required performance tests may be rescheduled in certain circumstances. Sources may
reschedule performance tests within existing deadlines in certain circumstances. See 40 CFR §§
60.8(d) and 63.7(b)(2). Sources may also request extensions of performance test deadlines based
on a claim of force majeure; such extensions require EPA approval. See 40 CFR §§ 60.8(a)(1)-
(4), 61.13(a)(3)-(6), 63.7(a)(4).
1 T \ Delegation I -n provides OECA with authority to approve or disapprove force majeure
performance test rescheduling in multi-regional cases or cases of national significance (Tier 2);
however, this authority is infrequently exercised. More commonly, EPA Regions evaluate force
majeure performance test extensions. EPA-issued performance test extensions based on claims of
force majeure may be classified either as Tier 3 (requiring consultation with OECA) or Tier 4.
When delegated, air agencies may also grant some force majeure test extensions (Tier 5). See 72
FR 27437, 27438 (May 16, 2007).
2.5.6 Compliance Deadline Extensions
In certain circumstances, sources may request a 1-year extension of the compliance deadlines
listed in a NESHAP when necessary for an existing source to install pollution controls. See CAA
§ 112(i)(3)(B); 40 CFR § 63.6(i). These are often referred to as "technical compliance
extensions." Under EPA. Delegation 7-116. OECA has authority to approve such extensions in
multi-regional cases or cases of national significance; however, this authority is infrequently
exercised. For nationally significant compliance deadline extensions, OECA will consult with
OAQPS, and with other offices (e.g., OGC) on an as-needed basis (Tier 1). Per Delegation 7-
116, EPA Regions have authority to respond to all other compliance deadline extension requests.
Depending on the complexity, these may be treated either as Tier 3 (requiring consultation with
OECA, and other offices as needed) or Tier 4 (without required consultation). Air pollution
control agencies have been further delegated to respond to these routine requests (Tier 5). Non-
routine compliance extensions that are not expressly provided for in CAA section 112(i)(3)(B)
and 40 CFR § 63.6(i) generally involve the exercise of enforcement discretion and are not
addressed in this manual.
2.5.7 Other Subpart-Specific Requests
In addition to the requests discussed above—all of which are based on either the NSPS and/or
NESHAP general provisions—some individual NSPS, NESHAP, section 111(d), and section 129
rules include similar opportunities or requirements for sources to submit requests to EPA (or a
delegated air agency) for approval. These requests may take numerous forms, including, for
example:
• Requests for Alternative Compliance Timelines (ACTs) and Higher Operating Values
(HOVs) under the Landfill NSPS (subparts WWW and XXX);
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• Requests for site-specific operating limits under the NSPS and Emission Guidelines for
Commercial and Industrial Solid Waste Incineration (CISWI) Units (subpart CCCC and
subpart DDDD)
• Requests for site-specific monitoring parameters under the pulp and paper NESHAP
(subpart S; 40 CFR § 63.453(g)) or the NESHAP for halogenated solvent cleaning
(subpart T; 40 CFR § 63.463(f)(l)(ii)) (see EPA Delegation 8).
• Requests for site-specific fenceline monitoring plans under the petroleum refinery
NESHAP (subpart CC; 40 CFR § 63.658(i)(l)).
In some cases, the individual subpart may specifically reserve EPA's authority to respond to
certain requests in the Implementation and Enforcement section of a subpart. For example, the
EPA regulations expressly prohibit petitions for site-specific operating limits under the CISWI
NSPS from being delegated to state, local, or tribal agencies. 40 CFR § 60.2030(c)(1). In such
situations and provided such authority has been internally delegated to the EPA Regions, EPA
Regions are responsible for responding to such requests, without required consultation (Tier 4).
Where not expressly reserved in the relevant rule, authority to respond to many subpart-specific
requests has been delegated to state, local, or tribal agencies along with the general delegation of
the subpart (Tier 5). Again, when determining the appropriate office for responding to such a
request, consult the regulatory language to determine whether the authority is specifically
reserved to EPA or is delegable to an air agency.
2.6 Other Requests NOT Covered by this Manual
The following requests may appear similar to those discussed in this manual, but they are not
subject to the same tiering system or EPA response procedures. These include:
• Alternative means of emission limitation under CAA sections 111(h) and 112(h)
• Innovative technology waivers for NSPS under CAA section 11 l(j)
Alternative Means of Emission Limitation
Requests for alternative means of emission limitation (AMEL), also known as alternative
nonopacity emission standards, are based on CAA sections 111(h)(3) and 112(h)(3), 40 CFR §
63.6(g), and other provisions in source category-specific subparts. Unlike the requests discussed
in this manual, requests for AMEL involve changes to the NSPS or NESHAP standards
themselves. Responding to such requests requires following additional statutory requirements
and applicable regulatory requirements, as contained in either the relevant general provisions
and/or the specific subpart at issue. Thus, these requests are not included in this manual and are
not subject to the same tiering system or EPA response procedures. EPA Delegation 7-121
provides OAR the responsibility for responding to AMEL requests.
Innovative Technology Waivers
Similar to AMEL, innovative technology waivers under section 11 l(j) require additional
procedures dictated by statutory requirements and are not addressed in this manual.
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Section 3. EPA Procedures for Addressing Formal Written Requests
State, local, and tribal air pollution control agencies are the first stop for most routine questions
involving section 111,112, and 129 rules. However, certain types of requests are addressed by
EPA—such as where an air agency has not been delegated the authority to respond to the
request, or where the request is novel or complex and EPA's input is requested. The procedures
discussed below relate to formal requests that are transmitted to, and responded to by, EPA. A
roughly chronological list of each step is summarized below, divided into three phases. This list
can serve as a checklist to guide the process, and gauge the progress, of EPA's responses to
incoming requests.
Phase 1: Receiving, Tracking, Tiering, and Assigning a Request
1. Submitting and receiving a request
2. Confirming details about the request
3. Tracking the request (through the National Tracking System on SharePoint)
4. Tiering and assigning a lead office
5. Preparing for consultation and/or establishing an informal workgroup
Phase 2: Developing EPA's Response
6. Researching the issue(s)
7. Drafting EPA's response
8. Consultation and review of EPA's response
9. Finalizing EPA's response/signing by delegated EPA official
Phase 3: Post-Signature Procedures
10. Distributing EPA's response
11. Uploading the response and other materials to the National Tracking System
12. Publishing to ADI and the Federal Register
Phase 1: Receiving, Tracking, Tiering, and Assigning a Request
3.1 Submitting and receiving a request
Requests for applicability determinations, regulatory interpretations, alternative test methods or
monitoring procedures, and many other types of formal requests (and informal inquiries) come to
different EPA offices in a variety of ways. Consistently tracking and processing formal requests
in an efficient manner has been a longstanding challenge that EPA intends to address in this
manual. The initial steps in the first phase of the process are critical to effectively and
consistently managing incoming requests.
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The first step in the process involves EPA's receipt of an incoming request. Until EPA's
centralized electronic system is operational,42 requests from the public—whether from owners or
operators of regulated entities or air agencies—should generally be sent to the appropriate EPA
Regional Office in the first instance.43 EPA is working on providing a list of appropriate regional
contacts on its external-facing website.
As a best practice, the EPA recipient of a formal written request should acknowledge receipt of
the request within 5 business days of receipt. This receipt acknowledgement may be shared via
email. As part of this initial communication, it may be helpful to notify the requestor of the
possibility that additional information may be necessary for EPA to evaluate the request.
3.2 Confirming details about the request
The EPA office receiving the request should first confirm that the request is a formal written
request for EPA's written feedback, as opposed to an informal inquiry. Many incoming requests
are informally communicated via phone or in the body of an email and would not be considered
formal written requests. Refer to Appendix A for information on distinguishing formal requests
from informal inquiries. Some requests that begin as informal inquiries later develop into formal
written requests. Only requests that are (or become) formal written requests need to follow the
procedures discussed in this section. (However, some of the steps discussed below may also be
relevant to responding to informal inquiries, as discussed further in Appendix A.)
The EPA office receiving the request should also confirm that the request is generally
appropriate for EPA (as opposed to a delegated air agency) to consider and respond to. For
example, requests related to routine issues over which an air pollution control agency has been
delegated authority, or requests relating to the content of a section 111(d) or section 129 State
Plan that is not language adopted from the applicable emissions guidelines by EPA, may be more
appropriately handled by the delegated (or EPA-approved) air agency. In these situations, the
EPA office in receipt of an incoming request is encouraged to reach out to the delegated air
agency to determine whether the air agency—as the authority with primary responsibility for
implementing and enforcing standards under CAA sections 111, 112, and 129—would prefer to
issue such a response.44
At this stage, if it is unclear whether the request is a formal request that EPA (as opposed to a
delegated air agency) should respond to, the receiving office will need to request a clarification
or additional information from the requestor. The receiving office may conduct these preliminary
information-gathering tasks prior to tracking the request or reaching out to other offices.
42 OAR has taken lead responsibility (with input from other offices, e.g., OECA, Regions) for developing a
centralized electronic system through which the public will be able to submit the various types of formal requests
discussed in this manual to EPA. This manual will be updated to reflect the use of such a system once it becomes
operational. The system is expected to become operational by early 2021.
43 Requests for regulatory interpretations that are not Region-specific may be transmitted directly to the relevant
EPA headquarters office.
44 If it is determined for any reason that EPA will not issue a response to a formal request, the requestor may
withdraw the request by written letter or email. If this happens later in the process, the lead office will update the
National Tracking System (discussed in the following sections) to indicate withdrawal.
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For all incoming written requests—particularly those to which EPA will respond—it is a best
practice for the office that receives the request (or the Regional Office, for requests sent directly
to a headquarters office) to reach out to the air agency in which the source is located to inform
the air agency of the incoming request. This communication may be done informally (e.g., by
phone or email), following the standard practices of the Regional Office.
3.3 Tracking the request (through the National Tracking System on SharePoint)
Until an automated electronic tracking system is operational, the Group Leader of the Operating
Permits Group in OAQPS (the OAQPS tracking coordinator) will oversee tracking of incoming
requests by maintaining a National Tracking System housed on the following SharePoint site:
httm://usei)Q. sharevoint. com/sites/OAR Custom Jsi.s/R.emesi.%2 0 Tracker/A llltems. asm.
This National Tracking System is used to track the following types of incoming requests and
EPA-issued responses:
• Applicability determinations;
• Regulatory interpretations;
• Region-issued alternative test methods;
• Alternative monitoring decisions;
• Alternative recordkeeping and reporting;
• Alternative reporting schedules;
• Performance test waivers;
• Performance test extensions (force majeure);
• Technical compliance extensions; and
• Other requests for alternatives, such as those provided for in individual subparts.45
The following types of requests, although discussed in this manual, will not be tracked:
• OAQPS-issued alternative test methods;46
• Test plans (including test plans that include minor changes to test methods)
• Other requests that do not involve changes to regulatory requirements promulgated in
EPA regulations.
After determining that a request warrants a formal written response that must be tracked, the
EPA office that received the request is responsible for creating an entry in the National Tracking
System in the SharePoint site to begin tracking the request as soon as practicable, but no later
45 Importantly, this only includes requests for alternatives, extensions, and waivers that would change existing
regulatory requirements established in individual subparts. This does not include requests to approve site-specific
operating conditions when such site-specific approval is a basic requirement of a regulation.
46 OAQPS/AQAD/MTG will separately track all OAQPS-issued alternative test method decisions.
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than 5 business days after receiving the request.47 Responsibility for updating the tracking
information may later transfer to a different EPA office if it is determined that another office
should be the lead office for a given request. However, the EPA office receiving the request
should always initiate this tracking process and add basic information about the request through
the forms on the tracking system.48 The recipient office will upload a copy of the incoming
request as part of the tracking form that the recipient office will complete.
3.4 Tiering and assigning a lead office
When creating an entry for an incoming request in the National Tracking System, the recipient
office will, among other things, identify the type of request and suggest a Tier and lead office
based on the criteria described in Sections 2 and 3 of this manual. For example, the Regional
Office that receives an incoming request could add it to the tracking system and suggest that it be
considered a Tier 3 applicability determination for which the Regional Office will take the lead
in developing a response. If the recipient office has any questions about the appropriate tier, it
may raise these questions to the OAQPS tracking coordinator at this time.
The OAQPS tracking coordinator (and, depending on the type of request, certain other offices)
will automatically receive notifications when new items are added to the tracking system and
may evaluate whether incoming entries are appropriately identified or tiered. Absent any
communication from the OAQPS tracking coordinator(s) within 5 business days, the recipient
office may move forward with processing the request according to the proposed tier (or may
forward the request to the proposed lead office, if it has not done so already).
In some cases, characterizing the request (e.g., whether it is an applicability determination or a
regulatory interpretation) and determining the appropriate tier (e.g., whether it is nationally
significant) may be complicated. In these situations, either at the request of the receiving office
(usually a Regional Office) or a headquarters office, the OAQPS tracking coordinator will
convene an ad hoc tiering committee to help determine the appropriate tier. This committee will
comprise staff from the relevant EPA region (presumably the recipient office) and
OAR/OAQPS/AQPD (the OAQPS tracking coordinator), along with other offices, depending on
the type of request:
• For applicability determinations, OAQPS/SPPD will be included in the tiering
committee. Shortly after convening, the tiering committee will provide OECA and
relevant EC AD an opportunity to provide information relevant to national enforcement
significance within 5 business days.
• For regulatory interpretations, OAQPS/SPPD will be part of the tiering committee.
• For alternative test methods, OAQPS/AQAD will be part of the tiering committee.
47 For requests received solely through paper mail, determining the date of receipt may be more difficult, but
generally should reflect the date the request is stamped "received" and/or provided to an appropriate manager or
staff.
48 Staff in all relevant EPA offices will have access to the National Tracking System and the ability to create and edit
entries in the tracking system. Additional guidance on the use of this tracking system is available on the SharePoint
site. For questions about how to use the tracking system, contact the OAQPS tracking coordinator.
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• For alternative monitoring, OECA will be part of the tiering committee.
During the tiering process, it may be necessary to request additional information from the
requestor to determine the scope and intent of the request. Once all necessary information has
been received, the tiering committee should work to complete the tiering exercise within one
week. Note that formation of an ad-hoc committee to resolve complicated tiering issues is
intended as a resource for Regional Offices, and as an oversight tool for headquarters offices.
However, in most cases, this committee will not be necessary, and the recipient office may either
begin processing the request or may forward the request to the appropriate lead office.
Resolution of the tiering exercise will define the appropriate lead office and consultation roles. If
the lead office is different from the office that initially received the request, the request and all
supporting materials should be transmitted to the lead office. A list of appropriate lead office
contacts is available internally at THIS LINK. The lead office will coordinate the majority of the
steps described below. At this stage, the lead office will update the National Tracking System to
indicate the final tier, final tier date, lead office, and lead office staff fields of the tracker.
Note that some tiering decisions—whether made by the receiving office or by an ad-hoc tiering
committee—may need to be revisited later in the process in certain situations. For example, after
researching the issues and beginning to develop EPA's response, the lead office and consulting
offices might determine that the request presents a more novel or nationally significant issue than
initially apparent, or the offices might determine that a different type of response (e.g., a
regulatory interpretation instead of an applicability determination) is more appropriate. In such
cases, lead office and consultation roles should be transferred as soon as practicable.
Box 3.1 Consultation Overview
Many EPA responses will involve coordination within different divisions of an EPA lead
office, as well as consultation with other EPA offices. The specific coordination and
consultation roles associated with each type of request are detailed in Section 2 of this manual.
This box provides a basic overview of consultation; additional details about the process for
engaging in consultation is provided in Sections 3.5 through 3.8 (particularly Section 3.8).
First, the lead group or division within a lead office may need (or want) to coordinate with
other groups or divisions within the lead office. This type of within-office coordination will
depend on the nature of the request (as discussed in Section 2) and may be further governed by
the lead office's internal delegations and procedures. For example, although the Operating
Permits Group in the Air Quality Policy Division within OAQPS will lead the development of
nationally significant applicability determinations (Tier 1), responding to such requests will
always involve coordination with staff from the relevant standard-setting group within the
Sectors Policies and Programs Division within OAQPS. For another example, depending on
the structure of a Regional Office (and any within-office delegations), an applicability
determination related to a NSPS or NESHAP may be led by either the ARD or ECAD branch
of the Regional Office. For Tier 3 requests, the lead group or division within a Region is to
coordinate with (or at a minimum, notify and provide an opportunity for feedback from) other
relevant divisions (including those named above, as well as the PRC) in developing EPA's
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response. Even for Tier 4 requests, if ARD is the lead division, it is to notify/check with
ECAD regarding any possible enforcement implications.
Second, for certain types of requests (Tier 1 and Tier 3), inter-office consultation with other
offices is mandatory. This type of consultation is sometimes embodied as a condition of the
relevant delegation agreement.49 For requests where consultation is optional (Tier 2 and Tier
4), the lead office is encouraged to consult on a case-by-case basis with other EPA offices
when seeking additional technical expertise or national perspective, and to ensure consistency
with precedent and that there are no ongoing/potential enforcement actions that may be
impacted by responding to the request.
The means by which coordination and consultation are conducted may vary depending on the
complexity of the request and the number of offices involved. In general, and unless otherwise
specified in a specific delegation, consultation is often satisfied with staff-level participation
from consulting offices. For routine or straightforward responses that require little intra-office
coordination or inter-office consultation, the lead office has the discretion to determine the
appropriate procedures to obtain all necessary input from the offices involved. For
complicated responses coordinated between multiple offices, the most effective way to offer
consultation is to form an informal response-specific workgroup with staff representatives
from each consulted office (along with staff from different divisions within the lead office).50
3.5 Preparing for consultation
Shortly after a lead office is assigned an incoming request, the lead office is responsible for
identifying and reaching out to the relevant staff from other divisions within the lead office, as
well as from consulting offices (e.g., organizing the workgroup, if one is formed). To determine
the appropriate staff from each consulting office to involve in deliberations, the lead staff should
either consult the EPA staff contact list available internally at THIS LINK or contact the first-line
supervisor of the relevant office. Standing workgroups that comprise EPA staff familiar with
relevant subject matter (e.g., the section 129 workgroup) may facilitate the process of identifying
relevant staff or establishing a response-specific workgroup.
49 Although consultation is the most common restriction placed on delegations of authority, individual delegation
agreements may place different restrictions on the exercise of delegated authority, including requirements that the
lead office "notify" another office, or that another office "concur" in the lead office's decision. See
httvs://intranet, eva. zov/ohr/rmvolicv/ads/dm/intro. htm. Notification requires informing the named office when
exercising the delegated authority. Concurrence requires approval from the other office before exercising the
authority. Consultation, by contrast, requires discussing an action with other EPA officials (generally through staff
representatives) before exercising the delegated authority. In practice, even though consultation does not require
concurrence, the lead office should strive to obtain concurrence from all offices whenever possible before moving
forward.
511 The manner by which a lead office coordinates internally may vary depending on the internal procedures of the
lead office. For example, representatives from different divisions of the lead office may participate in the same staff
workgroup as staff from outside consulting offices, or the lead office may choose to coordinate internally through
other, less formal mechanisms outside of the workgroup process.
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Phase 2: Developing the Response
3.6 Researching the issue(s)
Once the appropriate lead office staff is assigned to the request, staff should begin researching
the issues, which would include reviewing: applicable statutory and regulatory provisions; the
preambles to proposed and final rules, response to comments document, and technical support
documents associated with a rule; EPA precedent (e.g., through the AD I); relevant compliance
and enforcement history; and factual information provided by the requestor.
If necessary, the lead office staff may also request additional factual information and
documentation from the requestor. Once all relevant information has been received from the
requestor, the lead office will update the National Tracking System to reflect the date a complete
request has been submitted.
During this early stage, the lead office staff should consult with staff in other offices as
necessary. For example, for applicability determinations, the lead office staff will reach out to
ECAD and/or OECA to determine whether there are any ongoing or potential enforcement
actions related to the request. The lead office staff may also consult with other offices to gather
additional information on topics about which the consulting offices may have additional
experience or expertise.
Depending on the complexity of the issues addressed and the level of consultation involved, after
researching the issues, the lead office may choose to develop written materials summarizing the
issues and/or outlining the lead office's preferred approach. These documents may facilitate
workgroup discussions of novel or complex issues and may also be used as a starting point for
drafting EPA's response.
3.7 Drafting EPA's response
The lead office staff will typically draft EPA's response, with input from consulting offices. For
more straightforward responses, the draft response may be the first (and only) document shared
with consulting offices in the workgroup. For more complicated or contentious issues with
significant involvement from other offices, the lead office may want to hold off on drafting the
response until after all consulting offices have discussed the proposed approach (e.g., through
workgroup meetings) and after any necessary management input has been received, as discussed
further in Section 3.8.
Staff drafting a response should review prior EPA responses (such as those available on the ADI)
for examples/templates to use as a starting point. In order to ensure uniformity and completeness
in EPA responses across multiple offices, drafters should also follow the drafting guidelines
below.
• Follow the conventions in EPA's style manual, available here:
httvs: //intranet.ena.gov/agcvintr/manual/index.html.
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• Label draft versions of EPA's response, such as those distributed to the workgroup for
review, with a header reading "DRAFT, INTERNAL, DELIBERATIVE," etc.
• Restate the question. Only EPA's response (and not the incoming question) will be
posted on the ADI. To make determinations and decisions useful for future reference, it is
necessary that the question be accurately restated or summarized. If necessary, additional
technical information related to the incoming question may be included as an attachment
to EPA's response.
• Identify the applicable subpart and regulations. Reiterate in the response the relevant
regulation(s) at issue, including general citations to the relevant subpart and specific
citations to the CFR provisions at issue. If responding to a question concerning a section
111(d) or section 129 rule, be explicit about whether EPA's response concerns Emission
Guidelines, a State Plan, or a Federal Plan.51
• Clearly state what is being determined, interpreted, or approved (or denied).
o The form of EPA's response may sometimes differ from that which was requested
(e.g., EPA may issue a regulatory interpretation even though an applicability
determination was requested). Thus, it is important to explicitly identify the
nature of EPA's response, along with a concise explanation of why EPA is issuing
that type of response, particularly when issuing an applicability determination or
regulatory interpretation. For non-binding responses (e.g., regulatory
interpretations or any responses to delegated air agencies), EPA's letter should
clearly state that the Agency's position is not binding and not a final agency
action. Consult with ORC or OGC for appropriate disclaimer language,
o For EPA responses approving a request for an alternative test method, alternative
monitoring, compliance extension, or other type of request, it is essential to
clearly state the new requirements. The reader may not have the same
interpretation of the proposed or approved alternative as does EPA. For example,
if the test method or monitoring frequency is changing, reiterate the name of the
method or the new frequency in EPA's response letter. If the alternative protocol
is very lengthy and is being approved in its entirety, attach or specifically cite the
new method. It is also important to use the correct terminology to describe the
change.52
51 Care should be taken when addressing issues related to Emission Guidelines or EPA-approved State Plans.
Particularly, when responding to an applicability determination request related to Emission Guidelines (e.g., when
neither a State or Federal Plan is yet in effect), such an applicability determination could speak to whether the
facility is the type of "affected facility" addressed by the Emission Guidelines, or to the applicability of a specific
provision within EPA's Emission Guidelines. Provided that circumstances do not change at the facility, such a
determination may be relevant to whether the source is subject to a future-promulgated Federal Plan, or whether the
source should be included in a future State Plan submitted for EPA approval. When responding to a request related
to an EPA-approved State Plan, the lead staff should always consult with ORC and/or OGC in determining whether
and how to respond to such a request.
52 For example, when approving an alternative test method or monitoring, it is important to use the correct
terminology from the relevant regulations to describe the change, which may differ depending on whether the
change is processed under part 60 or 63.
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• Explain why. State the rationale for the determination, approval, or disapproval.
o If concurring with the position of another EPA office, delegated agency, or the
requestor, be specific as to what information is particularly compelling. Be more
specific than "based on your submission" or "it is acceptable upon review."
o Cite and summarize documents and technical information that support the
determination.
o Cite the appropriate statutory and regulatory provisions, guidance documents,
policy statements, determinations, and interpretations. When referring to a
previous determination, cite at a minimum the date, author, and origin (office) of
the determination. Where preamble language exists that is on point, identify,
quote or paraphrase the Federal Register notice, along with a citation,
o If a previous determination seems to contradict our current determination, explain
how the current case is different.
• In conclusion, EPA's response must include enough information that the question, the
answer, the rationale, and the effect of the determination are all clear from reading the
response alone.
• As applicable, EPA's response should also identify the EPA offices that were consulted
in developing the response.
3.8 Consultation and review of EPA's response
Consultation53 can occur at multiple points in the process, beginning shortly after a lead office is
assigned and continuing until final approval and signature of EPA's response. Appendix E
contains a checklist of specific items or information the lead office should consider sharing
throughout the consultation process.
The level of engagement with consulting offices during the early stages of the response process
will vary on a case-by-case basis. At a minimum, for all responses, the lead office will share a
copy of the incoming request and other associated documents with all consulting offices. As
described in Section 3.6, the lead office may need or want to engage in consultation while
researching the issues. When relevant, the lead office should also share a copy of any pre-
decisional materials developed by the lead office (e.g., issues papers, etc.). For more complex
responses, it may be helpful for the lead office to discuss the issues and the lead office's
proposed response with other offices prior to developing the draft response. These discussions
will generally occur through workgroup meetings, organized by the lead office as necessary (or
when requested by another office).
For all EPA responses involving consultation, the lead office should share a copy of the draft
response and solicit written feedback from staff in all consulting offices. In addition to this email
distribution, an optional but effective way to encourage feedback during this stage is to schedule
53 The consultation procedures discussed in this section are primarily related to the lead office's engagement with
other EPA offices. Intra-office coordination within different divisions of the lead office may—but do not necessarily
need to—follow the same procedures.
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a short workgroup call to discuss the response and all consulting offices' plans for providing
written feedback. Consultees intending to provide comments on the draft response will engage in
best efforts to do so within 10 calendar days after receiving the lead office request. If the lead
office has not heard from a consulting office within this time period, the lead office should reach
out to confirm whether the consulting office intends to provide feedback before proceeding. If a
consultee requires additional time to review the draft response, the lead office and consultee will
agree upon a date by when to provide comment.
The lead office should work collaboratively with all other offices to address feedback and should
strive to achieve consensus (e.g., through additional workgroup meetings, as necessary). Issues
that cannot be resolved at the staff level shall be expeditiously elevated to management for
resolution. Appropriate levels of management from each consulted office will be given the
opportunity to weigh in during this process.
3.9 Finalizing EPA's response/ signing by delegated EPA official
Once EPA's draft final written response has been reviewed by staff from all participating
consulting offices (e.g., the staff workgroup) and all outstanding issues have been resolved (or
elevated to management for resolution), the lead office will prepare the final written response for
management review. The level of necessary management review within the lead office will
depend on the nature of the response, but usually will not exceed the EPA official that has been
(re-)delegated authority to respond to the request. In addition to management from the lead
office, management from other offices may also review EPA's written response, upon request.
The lead staff should follow the internal routing procedures within the Region/Office for
signature packages and final approval of the response. The final EPA response must be signed by
an EPA official with delegated authority.54
Phase 3: Post-Signature Procedures
3.10 Distributing EPA's response
As soon as EPA's final response letter is signed, the lead office will send the signed response
letter to the requestor in the format generally used by the lead office. When transmitting an
electronic copy of EPA's signed letter via email, consider requesting a return receipt from the
requestor.
Delegated air agencies and/or regulated entities should be cc'd, as appropriate, and may be sent
an electronic copy of EPA's response.
Copies of EPA's response will also be distributed electronically to other relevant EPA offices
(including offices that may be interested in the outcome, but which were not consulted or
54 This includes EPA officials serving in an acting capacity, as well as EPA officials up the chain of command from
the official who has been redelegated authority (which should also have delegated authority).
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declined to participate). Typically, key staff from relevant consulting offices are cc'd, but they
may also be bcc'd depending on the preference of the lead office. When appropriate,
management from consulting offices may also be cc'd in addition to or instead of staff. As noted
in Section 3.7, regardless of whether individual staff are listed as cc's in EPA's response, the
body of EPA's response letter should acknowledge which other EPA offices were involved in
developing the response.
For example, for a Tier 1 applicability determination issued by OAQPS, the signed copy would
be transmitted to the facility requesting the determination, and copies would be shared with the
relevant delegated air agency, EPA Regional Office staff, OECA staff, and OGC staff (as cc's).
3.11 Uploading the response and other materials to the National Tracking System
For all responses that were initially tracked through SharePoint (see Section 3.3 for a list of the
relevant response types), the lead office will update the National Tracking System to reflect the
distribution date of EPA's response and any other relevant updates or information that was not
previously included in the tracking system (e.g., which offices were consulted). The lead office
should also upload a PDF copy of the final EPA response, any supporting documents attached to
EPA's response, and (if not previously uploaded) the incoming request letter, to a designated
location on SharePoint.55
For these responses tracked through SharePoint (again, see Section 3.3), in addition to EPA's
response, the lead office must prepare an abstract and a header, and then upload these documents
to the SharePoint site (these documents will eventually be posted to the ADI by OAQPS). Each
of these documents should be included in a separate Word file.
The abstract should contain a high-level summary of the issues addressed in the request,
including: the type of request; the question/issue presented; the type of source or equipment
addressed; the applicable subparts or specific regulatory citations; and the name and location of
the facility. The abstract should generally not provide a summary of EPA's response or the basis
for EPA's response (as such a summary may not be able to capture important nuances or
limitations to EPA's decision).
The header should list the name of the person who signed the EPA response letter, the date of
EPA's response, the subject line, the affected subpart, and any relevant regulatory citations.
3.12 Publishing to ADI and the Federal Register
For the responses identified in Section 3.3, the OAQPS tracking coordinator is responsible for
ensuring that EPA's response, along with other relevant materials uploaded by the lead office to
55 If issues arise uploading documents to SharePoint, the lead office can also email documents directly to the
OAQPS tracking coordinator.
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SharePoint, are uploaded to AIS and periodically published on the ADI website.56 The OAQPS
tracking coordinator is also responsible for providing notice of such responses in the Federal
Register on a periodic basis. Federal Register publication of final actions like applicability
determinations is particularly important, as such publication starts a 60-day period for judicial
challenges to EPA's decision. For broadly-applicable alternative test method approvals,
OAR/OAQPS/AQAD/MTG is responsible for publishing EPA's responses on the EPA Air
Emission Measurement Center website at www.epa.gov/emc and for providing notice of such
responses in the Federal Register on a yearly basis.
Box 3.2 Example of the Process for Issuing a Tier 3 Applicability Determination
A regulated entity wants EPA's input on whether a proposed new process line would be
subject to the subpart ABCD NSPS. After informally discussing the issue with the delegated
state air agency, the state and the facility realize that the issue is fairly complex, and the state
advises the facility to reach out to EPA.
The facility sends its request in the body of an email to the Regional Office air program staff
contact that it finds on EPA's website.
The facility's emailed request is somewhat hypothetical and relatively short. Upon receiving
the request, the Regional Office staff observes that it is not clear whether the facility is asking
for a formal applicability determination from EPA, or whether it simply wants informal
feedback on some of the general questions in the email. The Regional Office staff asks the
facility to clarify whether it desires a formal, determinative decision by EPA as to the
applicability of the ABCD NSPS to the proposed activity. The Region indicates that if so, the
facility would need to send a more formal written signed request for an applicability
determination, accompanied by sufficient factual information for EPA's consideration.
The facility responds by submitting an explicit request for an EPA applicability determination,
accompanied by comprehensive factual information about the proposed process design.
Upon receiving the request, the Regional Office acknowledges receipt with an e-mail
confirmation to the requestor and also forwards a copy of the incoming request to the relevant
delegated state agency. The Regional Office promptly adds a short entry to the SharePoint
National Tracking System on SharePoint, indicating some basic information about the request
and a suggestion that it be considered a Tier 3 applicability determination (to which the
Region would respond). The Regional Office also uploads the incoming request to the
National Tracking System.
The OAQPS tracking coordinator is automatically notified of the new entry to the National
Tracking System. Appreciating that the request raises some novel issues, the Regional Office
staff proactively reaches out to the OAQPS tracking coordinator to confirm that the request
should be considered Tier 3 (and, consequently, that the Region is the appropriate lead office).
The OAQPS tracking coordinator notifies the coordinator in SPPD, who, together with the
56 The OAQPS tracking coordinator is responsible for updating the tracking database to reflect the dates the
documents were added to AIS and ADI.
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Regional Office (the ad hoc tiering committee), confer as to the tiering decision. Although the
request appears to raise a somewhat novel issue, it appears unique to the facility's design and
unlikely to be nationally significant or precedential, so the tiering committee ultimately agrees
that Tier 3 is appropriate. The Regional Office is now officially the lead office.
The first line supervisor (branch chief/group leader) of the Regional Office's air permitting
branch assigns a lead staff for the project. Given the complexity of the project, the branch
chief decides that a temporary workgroup should be formed to facilitate the consultation
process. Either the branch chief or lead staff reaches out to colleagues in the regional ECAD
and ORC offices to notify them of the incoming request and confirm whether these offices
would like to participate in the process. The lead office also checks with ECAD to make sure
there are no active/potential enforcement proceedings related to the facility. After checking the
master contact list on the SharePoint site, the lead office also reaches out to the appropriate
contacts in the relevant standard-setting group of OAQPS/SPPD and in OECA. ORC suggests
that OGC should be looped in due to complex legal issues in the request, so the lead office
also reaches out to the appropriate OGC subject matter expert.
The lead staff circulates a copy of the incoming request to all staff workgroup members from
different offices and identifies a rough timeline for future correspondence or meetings to
discuss the request.
The lead staff begins researching the issues underlying the request, checking the regulatory
text of subpart ABCD; scanning the proposal and final preambles, response to comments, and
technical support document associated with the rule; searching the ADI to determine whether
similar issues have been previously addressed. The lead staff realizes that the technical
information submitted by the facility omits key pieces of information relevant to the
applicability of the subpart, so the staff reaches out to the facility to request additional
information on the missing aspect of the process design. Once all information/documentation
has been provided by the requestor, the lead staff updates the National Tracking System to
indicate the date all information was received.
After evaluating all information and informally discussing the issue with his or her branch
chief/group leader, the lead staff drafts a short 1-pager outlining a preliminary position and
suggested EPA response. The lead staff shares this 1-pager with the other workgroup members
and sets up a teleconference meeting to discuss the issues with the workgroup.
During the workgroup call, staff from one of the consulting headquarters offices indicates
disagreement with how the lead staff has interpreted a regulatory provision, and the workgroup
discusses both sides of the issue. The workgroup staff are unable to reach consensus on the
issue during the initial workgroup call, so the lead office schedules another call for one week
later. Staff from all offices invite their branch chiefs/group leaders to join the call, during
which the group successfully reaches consensus on a viable path forward.
The lead staff drafts EPA's response letter, using prior letters as a template and following the
drafting guidelines presented in Section 3.7 of this Process Manual.
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The lend stall" circulates a draft of ihe response letter lo the workgroup. requesting feedback
williin in calendar days After sendinu a reminder email a lew days helbre the deadline, staff
from another office requests a few more days to re\ iew. and the lead office agrees. The written
feedback from the workgroup is all conslriicti\e. and staff in all offices are comfortable with
I'lWs draft response
The lead staff cleans lip the draft response and shares it with his or her supers isor for re\ iew
One consulting office requests that a clean copy of the letter be shared with his or her
supers isor. so the lead stall"shares it with him or her too
Aller this round of res iess. the lead stall" prepares the document (plus a routinu memo required
by that specific Rcuional Office s protocols) for transmission to the dis ision director, sslio has
the delegated authority to issue applicability determinations in the Region.
The Reuional dis ision director siuns the letter The same day. staff mail a hard copy of the
letter to the requestor, and the lead staff emails scanned copies of the letter to the requestor,
the state air agency, and all staff that participated in the ssorkuroup
The lead staff updates the National Tracking System 011 SharePoint to reflect the status of
I'lWs response and the completed consultation, as ssell as lo update any other relesant
information in the database related lo this request and NWs response
The lead stall"realizes that he or she needs lo prepare an abstract summarizing l-IWs
response After preparing the abstract, the lead staff uploads the final letter, abstract, and
header information to the SharePoint site The lead staffs obligations are noss concluded
Subsequently, as part of its periodic effort to update the Al)l. the OAOPS trackinu coordinator
ensures that the letter, abstract, and header information from this applicability determination
(alonu with a dozen other recently-issued l-PA responses) are uploaded into the ADI. and
prepares a I cdcru/ Register Notice announcinu the asailability of these decisions
No one files a lawsuit within the on-day judicial res iess period challcnuinu l l'A's
applicability determination The state air auency (sshich also scrs es as the stale permitlinu
authority) issues a preconstruction permit authorizing the construction of the ncss process
equipment, and then a title V permit authorizing the operation of the ncss process equipment
The title V permit incorporates all of the relesant AIK'I) NI-SIIAP requirements that l-PA
identified as applicable in l-P.\"s recent response letter, and the facility operates in compliance
ssith these requirements
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APPENDIX A. Responding to Informal Inquiries
Regulated entities, air pollution control agencies, and other stakeholders often contact EPA by
telephone or e-mail to informally raise questions concerning regulations under CAA sections
111,112, and 129 ("informal inquiries"). It is important to distinguish these informal inquiries
from the formal signed written requests and formal EPA responses from Agency officials with
delegated authority discussed in this manual, and to clearly communicate this distinction.
Distinguishing Informal Inquiries from Formal Signed Written Requests
All discussions by telephone are inherently informal. Most email correspondence will also be
considered informal. However, because formal requests may be transmitted by email, and
because both informal inquiries and formal requests may involve similar questions or topics, it is
particularly important to understand the differences between informal and formal email
communications, as described below and summarized in Table A.l.
The format of the incoming request should provide helpful context as to the request's formality.
Informal inquiries are generally contained as text in the body of an email, whereas formal
requests should be reflected in a separate letter signed by a representative for the company
(formal request letters may be electronically signed and included as an attachment to an email).
The content of an incoming request should also be examined. Informal inquiries may seek
additional information or ask questions related to the applicability of a rule or the availability of
alternative compliance measures, but such requests are often more hypothetical and less fully
developed than a formal request. Formal requests should also explicitly identify the nature of the
request (e.g., "Company A requests an applicability determination for its planned construction of
..." or "Company A requests EPA's approval for the alternative test method specified below.").
As discussed further below, if it is unclear whether the requestor intended to submit a formal
request, EPA should ask the requestor for a clarification.
Distinguishing between informal inquiries and formal requests is particularly important when it
comes to EPA's responses. Informal inquiries may be handled by the EPA staff with technical
expertise, including those that have not been delegated the authority to issue formal responses or
speak officially on behalf of the Agency. Correspondence from EPA staff may be informative,
but it does not reflect an "official" EPA position. By contrast, formal EPA responses must be
signed by an EPA official with delegated authority to respond to a particular type of request.
Formal responses are dispositive and reflect EPA's official position on the matter at hand.57
57 This description primarily applies to applicability determinations, alternative test methods, alternative monitoring,
and EPA responses to other source-specific requests. As discussed in Section 2.2 of this manual, regulatory
interpretations may be based on some hypothetical facts, are generally not site-specific or dispositive, and should not
be relied on in the same manner.
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Table A.l. Distinguishing Informal Inquiries from Formal Requests and Responses
Informal Inquiries
Formal Requests/ Responses58
Format
Telephone or email discussion
Formal signed letter (may be
transmitted via email)
Request
Content
Asks questions or seeks additional
information; may be somewhat
hypothetical
Explicitly requests EPA's position
based on full and complete facts
EPA
Response
Communication handled by EPA staff
without authority to bind the Agency
Letter signed by an EPA official with
delegated authority to speak on behalf
of the Agency
Effect of
Response
May be informative, but should not
be relied upon as an official EPA
position
Dispositive, official EPA position for
the specific issue addressed
How to Approach Informal Inquiries
Many of the procedures associated with responding to formal requests may also be relevant to
EPA's consideration of informal inquiries. References within the following paragraphs to
Section 3 of this manual are intended to provide helpful parallels, but do not establish mandatory
procedures that must be followed when addressing informal inquiries.
In some cases, a request that begins as an informal inquiry may ultimately turn into a formal
request. In other cases, a request that begins as a formal written request may be resolved to the
requestor's satisfaction through informal discussions, and the formal request may be withdrawn.
As with formal requests, informal inquiries arrive at EPA through various channels (see Section
3.1). Upon receiving an informal inquiry from an outside party, EPA staff should first consider
whether EPA is best suited to address the issues posed, or whether the inquiry could be
addressed by the delegated air agency (see Section 3.2). Even where informal discussions are
principally between an outside party and EPA, it is often a best practice to notify the delegated
air agency of the outcome of these communications. The EPA staff receiving the inquiry should
consider which EPA office or staff may be best suited to address the issues (and which other
EPA offices should be involved in deliberations and communications) (see Sections 3.4. and 3.5.
When determining the most appropriate EPA office or staff to address an informal inquiry, the
lead office designations associated with different types of formal requests (discussed in Section 2
of this manual) may be a helpful starting point. More specific staff contacts associated with
different types of requests or particular subparts may be found on EPA's internal SharePoint site
at THIS LINK. Responding to informal inquiries may involve significant resource commitments
from EPA staff, including substantial research and coordination/consultation within and between
EPA offices (see Sections 3.6 and 3.8). When coordinating EPA's informal responses within
EPA offices, EPA staff should not publicly release internal, deliberative emails or documents to
outside parties.
58 As explained in note 51, not all elements of this table relate to regulatory interpretations.
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Outside parties may not be aware of the differences between informal inquiries and formal
requests, nor of the precise means by which they must request a formal EPA response.
Accordingly, some incoming requests are not clear as to whether the requestor is interested in an
informal inquiry or a formal EPA response. In such cases, EPA staff should ask for clarification
of the requestor's intent. If the requestor intended (or later decides) to request a formal EPA
response, EPA staff should inform the requestor of the appropriate means by which to formally
request an EPA response. This will generally involve a more formal letter (which may be
attached to an email) explicitly requesting the relevant EPA response, supported by sufficient
factual information upon which EPA can base its decision.
Informal inquiries should generally be restricted to questions about section 111, 112, or 129
regulations that can be answered by referring the inquirer to relevant regulatory text or prior EPA
statements (e.g., prior formal response letters in the ADI). EPA staff should avoid speaking to
novel or unresolved issues of policy or interpretation during informal discussions. It is also
important to clearly explain that EPA's feedback provided during informal discussions—
including emails from EPA staff directly answering a question or expressing an opinion—do not
reflect formal, determinative EPA responses. EPA staff should also be careful not to refer to an
informal EPA communication as an "applicability determination," "regulatory interpretation,"
"alternative test method," alternative monitoring," or similar labels that correspond to the formal,
written responses discussed in this manual.
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APPENDIX B. Interface with Title V Operating Permits
Background
Stationary sources subject to NSPS and NESHAP regulations (along with other types of large
sources) are generally required to obtain operating permits under title V of the Act. See CAA
§ 502(a); 40 CFR § 70.3(a). For these sources, the applicable requirements of NSPS, NESHAP,
section 111(d), and section 129 rules are included in title V permits and are implemented and
enforced primarily through the title V permitting program.
In most cases, the air agencies that have been delegated authority to implement NSPS, NESHAP,
section 111(d), and section 129 rules also administer EPA-approved title V operating permit
programs (known as "part 70 programs").59 Although the same administrative agency may be
responsible for implementing NSPS/ NESHAP/ 111(d)/ 129 and title V permitting programs,
these two roles are distinct, albeit related.60 Accordingly, delegations associated section 111,112,
and 129 rules, and EPA's responses to the requests discussed in this manual, generally occur
outside of the title V permitting process. However, as discussed further below, the final decisions
addressed in this manual must at some point be reflected in the title V permit to assure the permit
contains and assures compliance with all applicable requirements.
In consolidating and assuring compliance with all applicable requirements, title V permits serve
as an important compliance and enforcement tool. First, title V permits must include all CAA
requirements that are applicable to a source in a single permit document. See CAA § 504(a); 40
CFR § 70.2 (definition of "applicable requirement" includes standards under CAA sections 111,
112, and 129). Thus, determining which requirements are applicable to a source is critical to the
permitting process. This creates an area of overlap with applicability determinations and
applicability-related regulatory interpretations, as discussed further below.
Second, title V permits must also assure compliance with all applicable requirements and permit
terms. CAA §§ 504(a), (c); 40 CFR § 70.6(c)(1). Testing, monitoring, recordkeeping, and
59 In limited circumstances, EPA acts as the title V permitting authority under regulations in 40 CFR part 71, or
delegates this federal part 71 authority to a state, local, or tribal air agency. 40 CFR §71.10. However, the vast
majority of state and local agencies administer their own EPA-approved programs. Importantly, these EPA-
approved programs are not described as "delegated" federal programs.
60 Each state with an EPA-approved part 70 permitting program is required to have the authority to issue permits that
include and assure compliance with all applicable section 111, 112, and 129 requirements. CAA §§ 502(b)(5)(A),
(d)(1), 504(a), (c); 40 CFR §§ 70.4(b)(3)(i), (ii), (iv), (v), 70.4(c)(l)(iii), (d)(3)(ii)(A), 70.6(a)(1). The means by
which a state permitting agency obtains this authority to include such requirements in title V permits is a matter of
state law and does not necessarily require delegation of EPA's section 111,112, or 129 authority to the state.
However, as a practical matter, most states have taken delegation at least with respect to such standards applicable to
title V sources, because delegation offers certain practical benefits over implementing these requirements solely
through the title V permit program. For further information, see Memorandum from Thomas C. Curran (June 12,
1997), available at https://www.epa.gov/sites/production/files/2015-08/documents/interfac.pdfi Memorandum from
Karen L. Blanchard (October 6, 1994), available at https://virmv.epa.gov/sttes/production/1ites/2015-
08/documents/sectionl.pdf Memorandum from John S. Seitz (December 10, 1993), available at
https://mvw.epa.gov/sites/production/files/2015-08/documents/delegate.pdf
and Memorandum from John S. Seitz, Director, (April 13, 1993), available at
https://www.epa.sov/sites/production/files/2015-08/documents/t5-l 12.pdf.
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reporting provisions associated with individual section 111,112, and 129 rules must be included
in title V permits. Additionally, the title V permitting process may also be used to establish
additional testing, monitoring, recordkeeping, and reporting provisions when necessary to assure
compliance with an applicable requirement or permit term.
Due to the unique procedural requirements associated with title V permits, issues related to
NSPS, NESHAP, section 111(d), and section 129 rules may arise during multiple stages of the
permitting process, including when title V permits are first issued, renewed (every 5 years), or, in
certain cases, modified or reopened. In each permit action, a regulated entity may work with the
permitting authority either before or after submitting a permit application to determine which
requirements should be included in the source's permit. Once a state issues a draft permit, the
public is afforded (at least) 30 days to comment on the permit terms. States are also required to
submit a proposed permit (along with the state's response to public comments, as applicable) to
EPA for a 45-day review period, during which time EPA can object to the permit if, for example,
the permit does not contain or assure compliance with all applicable requirements. If EPA does
not object to a permit, the public has a 60-day period to petition EPA to object to the permit. At
any time after a final permit is issued, either the permitting authority or EPA can reopen a permit
that does not comply with the Act.
Applicability Determinations and Title V Operating Permits
As noted above, a primary function of title V operating permits is to consolidate all existing
applicable requirements into a single permit document. Determining which requirements (e.g.,
which NSPS, NESHAP, section 111, or section 129 regulations) apply to a source is therefore an
important part of the permitting process. Thus, air agencies with approved title V programs make
decisions similar to "applicability determinations"61 when they determine which CAA
requirements must be included in a draft permit.62 These state permitting decisions concerning
applicability must then go through a public comment period and an EPA review period where the
public and EPA have an opportunity to evaluate the air agency's determinations of applicability.
In this regard, the state title V decisions are different than the formal EPA-issued applicability
determinations addressed in this manual.
In preparing a title V permit application, a source must identify all of the requirements that apply
to the source. During this stage of the permitting process, owners or operators may find it useful
to request an applicability determination from EPA or the delegated state or local agency (which,
as noted above, may be different from the state or local permitting authority). As noted above,
the process for seeking such a formal applicability determination from EPA occurs outside of the
permitting process. Because formal EPA-issued applicability determinations are reviewable final
agency actions that conclusively resolve questions of applicability for a particular source, these
61 As noted above, supra note 24, such decisions are not referred to as "applicability determinations" as this term is
defined in this manual.
62 To the extent that the state, local, or tribal air agency with delegated authority to implement a section 111, 112, or
129 rule differs from the agency with an EPA-approved title V permitting program, the delegated air agency should
be the first stop for resolving issues related to applicability of a delegated rule. However, as noted above, the
permitting authority must also have the authority to issue title V permits that contain all applicable section 111,112,
and 129 requirements.
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applicability determinations define the "applicable requirements" for title V purposes; therefore,
issues related to the applicability of a regulation for which a formal EPA applicability
determination has already been issued would not be substantively reviewed during the title V
process.63 By contrast, applicability issues that are addressed for the first time in a title V permit
could generally be substantively reviewed through the title V permitting process.
Absent a formal EPA applicability determination, facilities interested in additional certainty may
apply for a title V permit shield. See CAA § 504(f); 40 CFR § 70.6(f). Under these provisions, a
permitting authority may expressly include in a title V permit a provision stating that compliance
with the title V permit "shall be deemed compliance with any applicable requirements as of the
date of permit issuance, provided that... such applicable requirements are included and are
specifically identified in the permit." 40 CFR § 70.6(f)(l)(i). Otherwise, the permitting authority
can only provide a shield from non-applicable requirements if it, "in acting on the permit
application or revision, determines in writing that other requirements specifically identified are
not applicable to the source, and the permit includes the determination or a concise summary
thereof." 40 CFR § 70.6(f)(l)(ii). The permit shield may only extend to requirements that exist
(or are determined not to exist) as of the date of permit issuance, and does not apply to
requirements that become applicable after issuance of a title V permit (whether due to EPA's
promulgation of such a requirement, or a change at the source that renders the source subject to a
requirement). Additionally, the content of a permit shield may be reviewed by the public and
EPA, and EPA may object or reopen a permit if a permit shield is erroneously included in the
title V permit.64
New sources are generally required to apply for a title V permit containing all applicable
requirements within 12 months of becoming subject to the permitting program, or, in certain
circumstances, within 12 months of beginning operation. 40 CFR § 70.5(a)(l)(i) and (ii). When
new requirements become applicable to an existing source, these requirements must also be
added to the source's title V permit. For permits with a remaining term of three or more years,
new requirements that will become effective before the permit expires must be added to the
permit within 18 months after promulgation of the applicable requirement. CAA § 502(b)(9); 40
CFR § 70.7(f)(l)(i) (reopening for cause). For permits with less than three years until expiration,
such requirements may be incorporated during the next permit renewal.
Testing, Monitoring, Recordkeeping, Reporting, and Title V Operating Permits
Title V permits must contain testing, monitoring, recordkeeping, and reporting conditions
sufficient to assure compliance with all applicable requirements and permit terms. As relevant to
the NSPS, NESHAP, section 111(d), and section 129 rules discussed in this manual, this entails
three basic steps:
63 If a permit does not include a requirement that EPA formally determined was applicable, that would be properly
raised through the permitting process, including through an EPA objection or reopening for cause.
64 See Memorandum from Thomas C. Curran (June 12, 1997), available at
https://mvw.epa.gov/sites/production/ftles/2015-08/documentMnterfac.pdf.
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First, title V permits must include all applicable testing, monitoring, recordkeeping, and
reporting provisions included within the NSPS, NESHAP, section 111(d), or section 129 rule.
See CAA § 504(a); 40 CFR § 70.6(a)(3)(i)(A).65 If an alternative compliance assurance
requirement has been approved following the mechanisms described in this manual, the
alternative can be included in the title V permit in the place of the default provisions established
in EPA's rule (the statement of basis accompanying the title V permit should summarize the
reason for this change).
Second, if the underlying regulation does not contain any testing, monitoring, or recordkeeping
requirements, then periodic testing, monitoring, or recordkeeping requirements sufficient to
assure compliance must be added to the title V permit. 40 CFR § 70.6(a)(3)(i)(B). This should
not be necessary for most post-1990 NSPS, NESHAP, section 111(d), and section 129 rules
promulgated by EPA, each of which should include compliance assurance requirements.
Third, even when an underlying requirement contains some testing, monitoring, recordkeeping,
or reporting requirements, a permitting authority or EPA may determine that additional
conditions are necessary to assure compliance, and any such conditions must be incorporated
into the title V permit. See CAA § 504(c); 40 CFR § 70.6(c)(1); Sierra Club v. EPA, 536 F.3d
673 (D.C. Cir. 2008). Although determining the adequacy of monitoring provisions is necessarily
a case-by-case inquiry depending on various factors, most post-1990 NSPS, NESHAP, section
111(d), and section 129 rules should generally not require supplementation.
The procedures used to incorporate the appropriate testing, monitoring, recordkeeping, and
reporting requirements into a title V permit may vary. Such provisions should generally be
incorporated into a permit at the same time as the underlying emission standard(s) is included.
For any changes or additions to compliance assurance provisions, EPA's regulations specify that
permit revisions that require more frequent monitoring or reporting may be processed as an
administrative amendment. 40 CFR § 70.7(d)(l)(iii). EPA's regulations also specify that minor
permit modification procedures may be used for changes that do not involve significant changes
to existing monitoring, recordkeeping, or reporting requirements. 40 CFR § 70.7(e)(2)(i)(A)(2).
EPA's longstanding position is that alternatives approved through the NSPS and NESHAP
procedures discussed in this manual may generally be incorporated in a title V permit using
minor modification procedures, but a state title V program may differ on the required procedure
for incorporating such requirements.66 Regulated entities should consult with their title V
permitting authority to determine the appropriate procedures for modifying a title V permit.
65 Additionally, any requirements based on EPA's Compliance Assurance Monitoring (CAM) regulations in 40 CFR
part 64 must be included in a title V permit. Where a source is subject to multiple potentially overlapping testing or
monitoring requirements, the permit may specify a streamlined set of testing or monitoring provisions, provided
such streamlined provisions assure compliance at least to the same extent as the provisions that are not included as a
result of the streamlining. 40 CFR 70.6(a)(3)(i)(A); see also White Paper Number 2 for Improved Implementation of
the Part 70 Operating Permits Program, 6-20 (March 5, 1996).
66 See 1999 Manual at 12 (superseded by this manual).
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APPENDIX C: Relevant Regulations and Definitions
Note: the text reproduced below is a verbatim copy of the regulations as of July 2020.
Note: most citations to part 60 general provisions will also apply in the part 62 (State/Federal
Plan) context, per 40 CFR § 62.02(b)(2),67 which states:
(2) The part 60 subpart A of this chapter general provisions and appendices to part 60
apply to part 62, except as follows: 40 CFR 60.7(a)(1), 60.7(a)(3), and 60.8(a) and where
special provisions set forth under the applicable subpart of this part shall apply instead of
any conflicting provisions.
Applicability Determinations
40 CFR § 60.5 Determination of construction or modification.
(a) When requested to do so by an owner or operator, the Administrator will make a
determination of whether action taken or intended to be taken by such owner or operator
constitutes construction (including reconstruction) or modification or the commencement
thereof within the meaning of this part.
(b) The Administrator will respond to any request for a determination under paragraph (a)
of this section within 30 days of receipt of such request.
40 CFR § 61.06 Determination of construction or modification.
• An owner or operator may submit to the Administrator a written application for a
determination of whether actions intended to be taken by the owner or operator constitute
construction or modification, or commencement thereof, of a source subject to a standard.
The Administrator will notify the owner or operator of his determination within 30 days
after receiving sufficient information to evaluate the application.
Alternative Test Methods (and Waivers)
40 CFR § 60.8(b):
(b) Performance tests shall be conducted and data reduced in accordance with the test methods
and procedures contained in each applicable subpart unless the Administrator
(1) specifies or approves, in specific cases, the use of a reference method with minor
changes in methodology,
(2) approves the use of an equivalent method,
(3) approves the use of an alternative method the results of which he has determined to be
adequate for indicating whether a specific source is in compliance,
67 See 66 FR 32484, 32494 (June 14, 2001).
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(4) waives the requirement for performance tests because the owner or operator of a
source has demonstrated by other means to the Administrator's satisfaction that the
affected facility is in compliance with the standard, or
(5) approves shorter sampling times and smaller sample volumes when necessitated by
process variables or other factors. Nothing in this paragraph shall be construed to
abrogate the Administrator's authority to require testing under section 114 of the Act.
40 CFR § 61.13(h)(1):
(1) Emission tests shall be conducted as set forth in this section, the applicable subpart and
appendix B unless the Administrator -
(i) Specifies or approves the use of a reference method with minor changes in
methodology; or
(ii) Approves the use of an alternative method; or
(iii) Waives the requirement for emission testing because the owner or operator of a
source has demonstrated by other means to the Administrator's satisfaction that the
source is in compliance with the standard.
40 CFR § 63.7(e)(2):
(2) Performance tests shall be conducted and data shall be reduced in accordance with the test
methods and procedures set forth in this section, in each relevant standard, and, if required, in
applicable appendices of parts 51, 60, 61, and 63 of this chapter unless the Administrator -
(i) Specifies or approves, in specific cases, the use of a test method with minor changes in
methodology (see definition in § 63.90(a)). Such changes may be approved in
conjunction with approval of the site-specific test plan (see paragraph (c) of this section);
or
(ii) Approves the use of an intermediate or major change or alternative to a test method
(see definitions in § 63.90(a)), the results of which the Administrator has determined to
be adequate for indicating whether a specific affected source is in compliance; or
(iii) Approves shorter sampling times or smaller sample volumes when necessitated by
process variables or other factors; or
(iv) Waives the requirement for performance tests because the owner or operator of an
affected source has demonstrated by other means to the Administrator's satisfaction that
the affected source is in compliance with the relevant standard.
40 CFR § 63.7(f): Use of an alternative test method
(1)General. Until authorized to use an intermediate or major change or alternative to a test
method, the owner or operator of an affected source remains subject to the requirements of this
section and the relevant standard.
(2) The owner or operator of an affected source required to do performance testing by a relevant
standard may use an alternative test method from that specified in the standard provided that the
owner or operator -
(i) Notifies the Administrator of his or her intention to use an alternative test method at
least 60 days before the performance test is scheduled to begin;
(ii) Uses Method 301 in appendix A of this part to validate the alternative test method.
This may include the use of specific procedures of Method 301 if use of such procedures
are sufficient to validate the alternative test method; and
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(iii) Submits the results of the Method 301 validation process along with the notification
of intention and the justification for not using the specified test method. The owner or
operator may submit the information required in this paragraph well in advance of the
deadline specified in paragraph (f)(2)(i) of this section to ensure a timely review by the
Administrator in order to meet the performance test date specified in this section or the
relevant standard.
40 CFR § 63.7 (h) Waiver of performance tests.
(1) Until a waiver of a performance testing requirement has been granted by the Administrator
under this paragraph, the owner or operator of an affected source remains subject to the
requirements of this section.
(2) Individual performance tests may be waived upon written application to the Administrator if,
in the Administrator's judgment, the source is meeting the relevant standard(s) on a continuous
basis, or the source is being operated under an extension of compliance, or the owner or operator
has requested an extension of compliance and the Administrator is still considering that request.
(3) Request to waive a performance test.
(i) If a request is made for an extension of compliance under § 63.6(i), the application for
a waiver of an initial performance test shall accompany the information required for the
request for an extension of compliance. If no extension of compliance is requested or if
the owner or operator has requested an extension of compliance and the Administrator is
still considering that request, the application for a waiver of an initial performance test
shall be submitted at least 60 days before the performance test if the site-specific test plan
under paragraph (c) of this section is not submitted.
(ii) If an application for a waiver of a subsequent performance test is made, the
application may accompany any required compliance progress report, compliance status
report, or excess emissions and continuous monitoring system performance report [such
as those required under § 63.6(i), § 63.9(h), and § 63.10(e) or specified in a relevant
standard or in the source's title V permit], but it shall be submitted at least 60 days before
the performance test if the site-specific test plan required under paragraph (c) of this
section is not submitted.
(iii) Any application for a waiver of a performance test shall include information
justifying the owner or operator's request for a waiver, such as the technical or economic
infeasibility, or the impracticality, of the affected source performing the required test.
(4) Approval of request to waive performance test. The Administrator will approve or deny a
request for a waiver of a performance test made under paragraph (h)(3) of this section when
he/she -
(i) Approves or denies an extension of compliance under § 63.6(i)(8); or
(ii) Approves or disapproves a site-specific test plan under § 63.7(c)(3); or
(iii) Makes a determination of compliance following the submission of a required
compliance status report or excess emissions and continuous monitoring systems
performance report; or
(iv) Makes a determination of suitable progress towards compliance following the
submission of a compliance progress report, whichever is applicable.
(5) Approval of any waiver granted under this section shall not abrogate the Administrator's
authority under the Act or in any way prohibit the Administrator from later canceling the waiver.
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The cancellation will be made only after notice is given to the owner or operator of the affected
source.
40 CFR § 63.2 Definitions:
"Test method means the validated procedure for sampling, preparing, and analyzing for an air
pollutant specified in a relevant standard as the performance test procedure. The test method may
include methods described in an appendix of this chapter, test methods incorporated by reference
in this part, or methods validated for an application through procedures in Method 301 of
appendix A of this part."
"Alternative test method means any method of sampling and analyzing for an air pollutant that is
not a test method in this chapter and that has been demonstrated to the Administrator's
satisfaction, using Method 301 in appendix A of this part, to produce results adequate for the
Administrator's determination that it may be used in place of a test method specified in this part."
"Performance test means the collection of data resulting from the execution of a test method
(usually three emission test runs) used to demonstrate compliance with a relevant emission
standard as specified in the performance test section of the relevant standard."
40 CFR § 63.90(a) Definitions
"Major change to test method means a modification to a federally enforceable test method that
uses "unproven technology or procedures" (not generally accepted by the scientific community)
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 sources or
source categories, and will almost always 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 emitting multiple pollutants."
"Intermediate change to test method means 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. Though
site-specific, an intermediate change may set a national precedent for a source category and may
ultimately result in a revision to the federally enforceable test method. In order to be approved,
an intermediate change must be validated according to EPA Method 301 (part 63, appendix A) to
demonstrate that it provides equal or improved accuracy and precision. Examples of intermediate
changes to a test method include, but are not limited to:
1. Modifications to a test method's sampling procedure including substitution of sampling
equipment that has been demonstrated for a particular sample matrix, and use of a
different impinger absorbing solution;
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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."
"Minor change to test method means:
1. A modification to a federally enforceable test method that:
i. Does not decrease the stringency of the emission limitation or standard;
ii. 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); and
iii. Is site-specific, made to reflect or accommodate the operational characteristics,
physical constraints, or safety concerns of an affected source.
2. Examples of minor changes to a test method include, but are not limited to:
i. Field adjustments in a test method's sampling 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
ii. 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."
Alternative Monitoring
40 CFR § 60.13(i):
(i) After receipt and consideration of written application, the Administrator may approve
alternatives to any monitoring procedures or requirements of this part including, but not limited
to the following:
(1) Alternative monitoring requirements when installation of a continuous monitoring
system or monitoring device specified by this part would not provide accurate
measurements due to liquid water or other interferences caused by substances in the
effluent gases.
(2) Alternative monitoring requirements when the affected facility is infrequently
operated.
(3) Alternative monitoring requirements to accommodate continuous monitoring systems
that require additional measurements to correct for stack moisture conditions.
(4) Alternative locations for installing continuous monitoring systems or monitoring
devices when the owner or operator can demonstrate that installation at alternate
locations will enable accurate and representative measurements.
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(5) Alternative methods of converting pollutant concentration measurements to units of
the standards.
(6) Alternative procedures for performing daily checks of zero and span drift that do not
involve use of span gases or test cells.
(7) Alternatives to the A.S.T.M. test methods or sampling procedures specified by any
subpart.
(8) Alternative continuous monitoring systems that do not meet the design or
performance requirements in Performance Specification 1, appendix B, but adequately
demonstrate a definite and consistent relationship between its measurements and the
measurements of opacity by a system complying with the requirements in Performance
Specification 1. The Administrator may require that such demonstration be performed for
each affected facility.
(9) Alternative monitoring requirements when the effluent from a single affected facility
or the combined effluent from two or more affected facilities is released to the
atmosphere through more than one point.
40 CFR § 61.14(g):
(1) Monitoring shall be conducted as set forth in this section and the applicable subpart unless
the Administrator -
(i) Specifies or approves the use of the specified monitoring requirements and procedures
with minor changes in methodology; or
(ii) Approves the use of alternatives to any monitoring requirements or procedures.
(2) If the Administrator finds reasonable grounds to dispute the results obtained by an alternative
monitoring method, the Administrator may require the monitoring requirements and procedures
specified in this part.
40 CFR § 63.8(b)(1):
(1) Monitoring shall be conducted as set forth in this section and the relevant standard(s) unless
the Administrator -
(i) Specifies or approves the use of minor changes in methodology for the specified
monitoring requirements and procedures (see § 63.90(a) for definition); or
(ii) Approves the use of an intermediate or major change or alternative to any monitoring
requirements or procedures (see § 63.90(a) for definition).
40 CFR § 63.8(f) Use of an alternative monitoring method:
(1) General. Until permission to use an alternative monitoring procedure (minor, intermediate, or
major changes; see definition in § 63.90(a)) has been granted by the Administrator under this
paragraph (f)(1), the owner or operator of an affected source remains subject to the requirements
of this section and the relevant standard.
(2) After receipt and consideration of written application, the Administrator may approve
alternatives to any monitoring methods or procedures of this part including, but not limited to,
the following:
(i) Alternative monitoring requirements when installation of a CMS specified by a
relevant standard would not provide accurate measurements due to liquid water or other
interferences caused by substances within the effluent gases;
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(ii) Alternative monitoring requirements when the affected source is infrequently
operated;
(iii) Alternative monitoring requirements to accommodate CEMS that require additional
measurements to correct for stack moisture conditions;
(iv) Alternative locations for installing CMS when the owner or operator can demonstrate
that installation at alternate locations will enable accurate and representative
measurements;
(v) Alternate methods for converting pollutant concentration measurements to units of the
relevant standard;
(vi) Alternate procedures for performing daily checks of zero (low-level) and high-level
drift that do not involve use of high-level gases or test cells;
(vii) Alternatives to the American Society for Testing and Materials (ASTM) test
methods or sampling procedures specified by any relevant standard;
(viii) Alternative CMS that do not meet the design or performance requirements in this
part, but adequately demonstrate a definite and consistent relationship between their
measurements and the measurements of opacity by a system complying with the
requirements as specified in the relevant standard. The Administrator may require that
such demonstration be performed for each affected source; or
(ix) Alternative monitoring requirements when the effluent from a single affected source
or the combined effluent from two or more affected sources is released to the atmosphere
through more than one point.
(3) If the Administrator finds reasonable grounds to dispute the results obtained by an alternative
monitoring method, requirement, or procedure, the Administrator may require the use of a
method, requirement, or procedure specified in this section or in the relevant standard. If the
results of the specified and alternative method, requirement, or procedure do not agree, the
results obtained by the specified method, requirement, or procedure shall prevail.
(4)
(i) Request to use alternative monitoring procedure. An owner or operator who wishes to
use an alternative monitoring procedure must submit an application to the Administrator
as described in paragraph (f)(4)(ii) of this section. The application may be submitted at
any time provided that the monitoring procedure is not the performance test method used
to demonstrate compliance with a relevant standard or other requirement. If the
alternative monitoring procedure will serve as the performance test method that is to be
used to demonstrate compliance with a relevant standard, the application must be
submitted at least 60 days before the performance evaluation is scheduled to begin and
must meet the requirements for an alternative test method under § 63.7(f).
(ii) The application must contain a description of the proposed alternative monitoring
system which addresses the four elements contained in the definition of monitoring in §
63.2 and a performance evaluation test plan, if required, as specified in paragraph (e)(3)
of this section. In addition, the application must include information justifying the owner
or operator's request for an alternative monitoring method, such as the technical or
economic infeasibility, or the impracticality, of the affected source using the required
method.
(iii) The owner or operator may submit the information required in this paragraph well in
advance of the submittal dates specified in paragraph (f)(4)(i) above to ensure a timely
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review by the Administrator in order to meet the compliance demonstration date specified
in this section or the relevant standard.
(iv) Application for minor changes to monitoring procedures, as specified in paragraph
(b)(1) of this section, may be made in the site-specific performance evaluation plan.
(5) Approval of request to use alternative monitoring procedure.
(i) The Administrator will notify the owner or operator of approval or intention to deny
approval of the request to use an alternative monitoring method within 30 calendar days
after receipt of the original request and within 30 calendar days after receipt of any
supplementary information that is submitted. If a request for a minor change is made in
conjunction with site-specific performance evaluation plan, then approval of the plan will
constitute approval of the minor change. Before disapproving any request to use an
alternative monitoring method, the Administrator will notify the applicant of the
Administrator's intention to disapprove the request together with -
(A) Notice of the information and findings on which the intended disapproval is
based; and
(B) Notice of opportunity for the owner or operator to present additional
information to the Administrator before final action on the request. At the time the
Administrator notifies the applicant of his or her intention to disapprove the
request, the Administrator will specify how much time the owner or operator will
have after being notified of the intended disapproval to submit the additional
information.
(ii) The Administrator may establish general procedures and criteria in a relevant
standard to accomplish the requirements of paragraph (f)(5)(i) of this section.
(iii) If the Administrator approves the use of an alternative monitoring method for an
affected source under paragraph (f)(5)(i) of this section, the owner or operator of such
source shall continue to use the alternative monitoring method until he or she receives
approval from the Administrator to use another monitoring method as allowed by §
63.8(f).
(6) Alternative to the relative accuracy test. An alternative to the relative accuracy test for CEMS
specified in a relevant standard may be requested as follows:
(i) Criteria for approval of alternative procedures. An alternative to the test method for
determining relative accuracy is available for affected sources with emission rates
demonstrated to be less than 50 percent of the relevant standard. The owner or operator of
an affected source may petition the Administrator under paragraph (f)(6)(ii) of this
section to substitute the relative accuracy test in section 7 of Performance Specification 2
with the procedures in section 10 if the results of a performance test conducted according
to the requirements in § 63.7, or other tests performed following the criteria in § 63.7,
demonstrate that the emission rate of the pollutant of interest in the units of the relevant
standard is less than 50 percent of the relevant standard. For affected sources subject to
emission limitations expressed as control efficiency levels, the owner or operator may
petition the Administrator to substitute the relative accuracy test with the procedures in
section 10 of Performance Specification 2 if the control device exhaust emission rate is
less than 50 percent of the level needed to meet the control efficiency requirement. The
alternative procedures do not apply if the CEMS is used continuously to determine
compliance with the relevant standard.
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(ii) Petition to use alternative to relative accuracy test. The petition to use an alternative
to the relative accuracy test shall include a detailed description of the procedures to be
applied, the location and the procedure for conducting the alternative, the concentration
or response levels of the alternative relative accuracy materials, and the other equipment
checks included in the alternative procedure(s). The Administrator will review the
petition for completeness and applicability. The Administrator's determination to approve
an alternative will depend on the intended use of the CEMS data and may require
specifications more stringent than in Performance Specification 2.
(iii) Rescission of approval to use alternative to relative accuracy test. The Administrator
will review the permission to use an alternative to the CEMS relative accuracy test and
may rescind such permission if the CEMS data from a successful completion of the
alternative relative accuracy procedure indicate that the affected source's emissions are
approaching the level of the relevant standard. The criterion for reviewing the permission
is that the collection of CEMS data shows that emissions have exceeded 70 percent of the
relevant standard for any averaging period, as specified in the relevant standard. For
affected sources subject to emission limitations expressed as control efficiency levels, the
criterion for reviewing the permission is that the collection of CEMS data shows that
exhaust emissions have exceeded 70 percent of the level needed to meet the control
efficiency requirement for any averaging period, as specified in the relevant standard.
The owner or operator of the affected source shall maintain records and determine the
level of emissions relative to the criterion for permission to use an alternative for relative
accuracy testing. If this criterion is exceeded, the owner or operator shall notify the
Administrator within 10 days of such occurrence and include a description of the nature
and cause of the increased emissions. The Administrator will review the notification and
may rescind permission to use an alternative and require the owner or operator to conduct
a relative accuracy test of the CEMS as specified in section 7 of Performance
Specification 2. The Administrator will review the notification and may rescind
permission to use an alternative and require the owner or operator to conduct a relative
accuracy test of the CEMS as specified in section 8.4 of Performance Specification 2.
40 CFR § 63.2 Definitions:
"Monitoring means the collection and use of measurement data or other information to control
the operation of a process or pollution control device or to verify a work practice standard
relative to assuring compliance with applicable requirements. Monitoring is composed of four
elements:
• Indicator(s) of performance - the parameter or parameters you measure or observe for
demonstrating proper operation of the pollution control measures or compliance with the
applicable emissions limitation or standard. Indicators of performance may include direct
or predicted emissions measurements (including opacity), operational parametric values
that correspond to process or control device (and capture system) efficiencies or
emissions rates, and recorded findings of inspection of work practice activities, materials
tracking, or design characteristics. Indicators may be expressed as a single maximum or
minimum value, a function of process variables (for example, within a range of pressure
drops), a particular operational or work practice status (for example, a damper position,
completion of a waste recovery task, materials tracking), or an interdependency between
two or among more than two variables.
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• Measurement techniques - the means by which you gather and record information of or
about the indicators of performance. The components of the measurement technique
include the detector type, location and installation specifications, inspection procedures,
and quality assurance and quality control measures. Examples of measurement
techniques include continuous emission monitoring systems, continuous opacity
monitoring systems, continuous parametric monitoring systems, and manual inspections
that include making records of process conditions or work practices.
• Monitoring frequency - the number of times you obtain and record monitoring data over a
specified time interval. Examples of monitoring frequencies include at least four points
equally spaced for each hour for continuous emissions or parametric monitoring systems,
at least every 10 seconds for continuous opacity monitoring systems, and at least once per
operating day (or week, month, etc.) for work practice or design inspections.
• Averaging time - the period over which you average and use data to verify proper
operation of the pollution control approach or compliance with the emissions limitation
or standard. Examples of averaging time include a 3-hour average in units of the
emissions limitation, a 30-day rolling average emissions value, a daily average of a
control device operational parametric range, and an instantaneous alarm.
40 CFR § 63.90(a) Definitions:
Major change to monitoring means a modification to federally required monitoring that uses
"unproven technology or procedures" (not generally accepted by the scientific community) or is
an entirely new method (sometimes necessary when the required monitoring is unsuitable). A
major change to monitoring may be site-specific or may apply to one or more source categories
and will almost always set a national precedent. Examples of major changes to monitoring
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
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;
5. Decreased monitoring frequency for a continuous emission monitoring system,
continuous opacity monitoring system, predictive emission monitoring system, or
continuous parameter monitoring system;
6. Decreased monitoring frequency for a leak detection and repair program; and
7. Use of alternative averaging times for reporting purposes.
Intermediate change to monitoring means a modification to federally required monitoring
involving "proven technology" (generally accepted by the scientific community as equivalent or
better) that is applied on a site-specific basis and that may have the potential to decrease the
stringency of the associated emission limitation or 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 required monitoring. Examples of intermediate changes to
monitoring include, but are not limited to:
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i. Use of a continuous emission monitoring system (CEMS) in lieu of a parameter
monitoring approach;
ii. Decreased frequency for non-continuous parameter monitoring or physical inspections;
iii. Changes to quality control requirements for parameter monitoring; and
iv. Use of an electronic data reduction system in lieu of manual data reduction.
Minor change to monitoring means:
1. A modification to federally required monitoring that:
i. Does not decrease the stringency of the compliance and enforcement measures for
the relevant standard;
ii. Has no national significance (e.g., does not affect implementation of the
applicable regulation for other affected sources, does not set a national precedent,
and individually does not result in a revision to the monitoring requirements); and
iii. Is site-specific, made to reflect or accommodate the operational characteristics,
physical constraints, or safety concerns of an affected source.
2. 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;
ii. Increased monitoring frequency; and
iii. Modification of the environmental shelter to moderate temperature fluctuation
and thus protect the analytical instrumentation.
Alternative Recordkeeping and Reporting
40 CFR § 63.90(a) Definitions:
Major change to recordkeeping/reporting means:
1. A modification to federally required recordkeeping or reporting that:
i. May decrease the stringency of the required compliance and enforcement
measures for the relevant standards;
ii. May have national significance (e.g., might affect implementation of the
applicable regulation for other affected sources, might set a national precedent);
or
iii. Is not site-specific
2. Examples of major changes to recordkeeping and reporting include, but are not limited
to:
i. Decreases in the record retention for all records;
ii. Waiver of all or most recordkeeping or reporting requirements;
iii. Major changes to the contents of reports; or
iv. Decreases in the reliability of recordkeeping or reporting (e.g., manual recording
of monitoring data instead of required automated or electronic recording, or paper
reports where electronic reporting may have been required).
Minor change to recordkeeping/reporting means:
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1. A modification to federally required recordkeeping or reporting that:
i. Does not decrease the stringency of the compliance and enforcement measures for
the relevant standards;
ii. 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 recordkeeping or reporting
requirement); and
iii. Is site-specific.
2. Examples of minor changes to recordkeeping or reporting include, but are not limited to:
iv. Changes to recordkeeping necessitated by alternatives to monitoring;
v. Increased frequency of recordkeeping or reporting, or increased record retention
periods;
vi. Increased reliability in the form of recording monitoring data, e.g., electronic or
automatic recording as opposed to manual recording of monitoring data;
vii. Changes related to compliance extensions granted pursuant to § 63.6(i);
viii. Changes to recordkeeping for good cause shown for a fixed short duration, e.g.,
facility shutdown;
ix. Changes to recordkeeping or reporting that is clearly redundant with equivalent
recordkeeping/reporting requirements; and
x. Decreases in the frequency of reporting for area sources to no less than once a
year for good cause shown, or for major sources to no less than twice a year as
required by title V, for good cause shown.
Alternative Reporting Schedules
40 CFR § 60.19 General notification and reporting requirements:
(c) Notwithstanding time periods or postmark deadlines specified in this part for the submittal of
information to the Administrator by an owner or operator, or the review of such information by
the Administrator, such time periods or deadlines may be changed by mutual agreement between
the owner or operator and the Administrator. Procedures governing the implementation of this
provision are specified in paragraph (f) of this section.
(d) If an owner or operator of an affected facility in a State with delegated authority is required to
submit periodic reports under this part to the State, and if the State has an established timeline for
the submission of periodic reports that is consistent with the reporting frequency(ies) specified
for such facility under this part, the owner or operator may change the dates by which periodic
reports under this part shall be submitted (without changing the frequency of reporting) to be
consistent with the State's schedule by mutual agreement between the owner or operator and the
State. The allowance in the previous sentence applies in each State beginning 1 year after the
affected facility is required to be in compliance with the applicable subpart in this part.
Procedures governing the implementation of this provision are specified in paragraph (f) of this
section.
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(e) If an owner or operator supervises one or more stationary sources affected by standards set
under this part and standards set under part 61, part 63, or both such parts of this chapter, he/she
may arrange by mutual agreement between the owner or operator and the Administrator (or the
State with an approved permit program) a common schedule on which periodic reports required
by each applicable standard shall be submitted throughout the year. The allowance in the
previous sentence applies in each State beginning 1 year after the stationary source is required to
be in compliance with the applicable subpart in this part, or 1 year after the stationary source is
required to be in compliance with the applicable 40 CFR part 61 or part 63 of this chapter
standard, whichever is latest. Procedures governing the implementation of this provision are
specified in paragraph (f) of this section.
(f)
(1)
(i) Until an adjustment of a time period or postmark deadline has been approved
by the Administrator under paragraphs (f)(2) and (f)(3) of this section, the owner
or operator of an affected facility remains strictly subject to the requirements of
this part.
(ii) An owner or operator shall request the adjustment provided for in paragraphs
(f)(2) and (f)(3) of this section each time he or she wishes to change an applicable
time period or postmark deadline specified in this part.
(2) Notwithstanding time periods or postmark deadlines specified in this part for the
submittal of information to the Administrator by an owner or operator, or the review of
such information by the Administrator, such time periods or deadlines may be changed
by mutual agreement between the owner or operator and the Administrator. An owner or
operator who wishes to request a change in a time period or postmark deadline for a
particular requirement shall request the adjustment in writing as soon as practicable
before the subject activity is required to take place. The owner or operator shall include in
the request whatever information he or she considers useful to convince the
Administrator that an adjustment is warranted.
(3) If, in the Administrator's judgment, an owner or operator's request for an adjustment
to a particular time period or postmark deadline is warranted, the Administrator will
approve the adjustment. The Administrator will notify the owner or operator in writing of
approval or disapproval of the request for an adjustment within 15 calendar days of
receiving sufficient information to evaluate the request.
(4) If the Administrator is unable to meet a specified deadline, he or she will notify the
owner or operator of any significant delay and inform the owner or operator of the
amended schedule.
61.10 Source reporting and waiver request:
(g) Notwithstanding time periods or postmark deadlines specified in this part for the submittal of
information to the Administrator by an owner or operator, or the review of such information by
the Administrator, such time periods or deadlines may be changed by mutual agreement between
the owner or operator and the Administrator. Procedures governing the implementation of this
provision are specified in paragraph (j) of this section.
(h) If an owner or operator of a stationary source in a State with delegated authority is required to
submit reports under this part to the State, and if the State has an established timeline for the
submission of reports that is consistent with the reporting frequency(ies) specified for such
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source under this part, the owner or operator may change the dates by which reports under this
part shall be submitted (without changing the frequency of reporting) to be consistent with the
State's schedule by mutual agreement between the owner or operator and the State. The
allowance in the previous sentence applies in each State beginning 1 year after the source is
required to be in compliance with the applicable subpart in this part. Procedures governing the
implementation of this provision are specified in paragraph (j) of this section.
(i) If an owner or operator supervises one or more stationary sources affected by standards set
under this part and standards set under part 60, part 63, or both such parts of this chapter, he/she
may arrange by mutual agreement between the owner or operator and the Administrator (or the
State with an approved permit program) a common schedule on which reports required by each
applicable standard shall be submitted throughout the year. The allowance in the previous
sentence applies in each State beginning 1 year after the source is required to be in compliance
with the applicable subpart in this part, or 1 year after the source is required to be in compliance
with the applicable part 60 or part 63 standard, whichever is latest. Procedures governing the
implementation of this provision are specified in paragraph (j) of this section.
G)
(1)
(i) Until an adjustment of a time period or postmark deadline has been approved
by the Administrator under paragraphs (j)(2) and (j)(3) of this section, the owner
or operator of an affected source remains strictly subject to the requirements of
this part.
(ii) An owner or operator shall request the adjustment provided for in paragraphs
(j)(2) and (j)(3) of this section each time he or she wishes to change an applicable
time period or postmark deadline specified in this part.
(2) Notwithstanding time periods or postmark deadlines specified in this part for the
submittal of information to the Administrator by an owner or operator, or the review of
such information by the Administrator, such time periods or deadlines may be changed
by mutual agreement between the owner or operator and the Administrator. An owner or
operator who wishes to request a change in a time period or postmark deadline for a
particular requirement shall request the adjustment in writing as soon as practicable
before the subject activity is required to take place. The owner or operator shall include in
the request whatever information he or she considers useful to convince the
Administrator that an adjustment is warranted.
(3) If, in the Administrator's judgment, an owner or operator's request for an adjustment
to a particular time period or postmark deadline is warranted, the Administrator will
approve the adjustment. The Administrator will notify the owner or operator in writing of
approval or disapproval of the request for an adjustment within 15 calendar days of
receiving sufficient information to evaluate the request.
(4) If the Administrator is unable to meet a specified deadline, he or she will notify the
owner or operator of any significant delay and inform the owner or operator of the
amended schedule.
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63.9(i) Adjustment to time periods or postmark deadlines for submittal and review of
required communications:
(1)
(i) Until an adjustment of a time period or postmark deadline has been approved by the
Administrator under paragraphs (i)(2) and (i)(3) of this section, the owner or operator of
an affected source remains strictly subject to the requirements of this part.
(ii) An owner or operator shall request the adjustment provided for in paragraphs (i)(2)
and (i)(3) of this section each time he or she wishes to change an applicable time period
or postmark deadline specified in this part.
(2) Notwithstanding time periods or postmark deadlines specified in this part for the submittal of
information to the Administrator by an owner or operator, or the review of such information by
the Administrator, such time periods or deadlines may be changed by mutual agreement between
the owner or operator and the Administrator. An owner or operator who wishes to request a
change in a time period or postmark deadline for a particular requirement shall request the
adjustment in writing as soon as practicable before the subject activity is required to take place.
The owner or operator shall include in the request whatever information he or she considers
useful to convince the Administrator that an adjustment is warranted.
(3) If, in the Administrator's judgment, an owner or operator's request for an adjustment to a
particular time period or postmark deadline is warranted, the Administrator will approve the
adjustment. The Administrator will notify the owner or operator in writing of approval or
disapproval of the request for an adjustment within 15 calendar days of receiving sufficient
information to evaluate the request.
(4) If the Administrator is unable to meet a specified deadline, he or she will notify the owner or
operator of any significant delay and inform the owner or operator of the amended schedule.
63.10(a) Recordkeeping and reporting requirements:
(5) If an owner or operator of an affected source in a State with delegated authority is required to
submit periodic reports under this part to the State, and if the State has an established timeline for
the submission of periodic reports that is consistent with the reporting frequency(ies) specified
for such source under this part, the owner or operator may change the dates by which periodic
reports under this part shall be submitted (without changing the frequency of reporting) to be
consistent with the State's schedule by mutual agreement between the owner or operator and the
State. For each relevant standard established pursuant to section 112 of the Act, the allowance in
the previous sentence applies in each State beginning 1 year after the affected source's
compliance date for that standard. Procedures governing the implementation of this provision are
specified in § 63.9(i).
(6) If an owner or operator supervises one or more stationary sources affected by more than one
standard established pursuant to section 112 of the Act, he/she may arrange by mutual agreement
between the owner or operator and the Administrator (or the State permitting authority) a
common schedule on which periodic reports required for each source shall be submitted
throughout the year. The allowance in the previous sentence applies in each State beginning 1
year after the latest compliance date for any relevant standard established pursuant to section 112
of the Act for any such affected source(s). Procedures governing the implementation of this
provision are specified in § 63.9(i).
(7) If an owner or operator supervises one or more stationary sources affected by standards
established pursuant to section 112 of the Act (as amended November 15, 1990) and standards
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set under part 60, part 61, or both such parts of this chapter, he/she may arrange by mutual
agreement between the owner or operator and the Administrator (or the State permitting
authority) a common schedule on which periodic reports required by each relevant (i.e.,
applicable) standard shall be submitted throughout the year. The allowance in the previous
sentence applies in each State beginning 1 year after the stationary source is required to be in
compliance with the relevant section 112 standard, or 1 year after the stationary source is
required to be in compliance with the applicable part 60 or part 61 standard, whichever is latest.
Procedures governing the implementation of this provision are specified in § 63.9(i).
Test Plans
40 CFR § 63.7(c) Quality assurance program:
(1) The results of the quality assurance program required in this paragraph will be considered by
the Administrator when he/she determines the validity of a performance test.
(2)
(i) Submission of site-specific test plan. Before conducting a required performance test,
the owner or operator of an affected source shall develop and, if requested by the
Administrator, shall submit a site-specific test plan to the Administrator for approval. The
test plan shall include a test program summary, the test schedule, data quality objectives,
and both an internal and external quality assurance (QA) program. Data quality
objectives are the pretest expectations of precision, accuracy, and completeness of data.
***
(iv) The owner or operator of an affected source shall submit the site-specific test plan to
the Administrator upon the Administrator's request at least 60 calendar days before the
performance test is scheduled to take place, that is, simultaneously with the notification
of intention to conduct a performance test required under paragraph (b) of this section, or
on a mutually agreed upon date.
(v) The Administrator may request additional relevant information after the submittal of a
site-specific test plan.
(3) Approval of site-specific test plan.
(i) The Administrator will notify the owner or operator of approval or intention to deny
approval of the site-specific test plan (if review of the site-specific test plan is requested)
within 30 calendar days after receipt of the original plan and within 30 calendar days
after receipt of any supplementary information that is submitted under paragraph
(c)(3)(i)(B) of this section. Before disapproving any site-specific test plan, the
Administrator will notify the applicant of the Administrator's intention to disapprove the
plan together with -
(A) Notice of the information and findings on which the intended disapproval is
based; and
(B) Notice of opportunity for the owner or operator to present, within 30 calendar
days after he/she is notified of the intended disapproval, additional information to
the Administrator before final action on the plan.
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(ii) In the event that the Administrator fails to approve or disapprove the site-specific test
plan within the time period specified in paragraph (c)(3)(i) of this section, the following
conditions shall apply:
(A) If the owner or operator intends to demonstrate compliance using the test
method(s) specified in the relevant standard or with only minor changes to those
tests methods (see paragraph (e)(2)(i) of this section), the owner or operator must
conduct the performance test within the time specified in this section using the
specified method(s);
(B) If the owner or operator intends to demonstrate compliance by using an
alternative to any test method specified in the relevant standard, the owner or
operator is authorized to conduct the performance test using an alternative test
method after the Administrator approves the use of the alternative method when
the Administrator approves the site-specific test plan (if review of the site-specific
test plan is requested) or after the alternative method is approved (see paragraph
(f) of this section). However, the owner or operator is authorized to conduct the
performance test using an alternative method in the absence of notification of
approval 45 days after submission of the site-specific test plan or request to use an
alternative method. The owner or operator is authorized to conduct the
performance test within 60 calendar days after he/she is authorized to demonstrate
compliance using an alternative test method. Notwithstanding the requirements in
the preceding three sentences, the owner or operator may proceed to conduct the
performance test as required in this section (without the Administrator's prior
approval of the site-specific test plan) if he/she subsequently chooses to use the
specified testing and monitoring methods instead of an alternative.
(iii) Neither the submission of a site-specific test plan for approval, nor the
Administrator's approval or disapproval of a plan, nor the Administrator's failure to
approve or disapprove a plan in a timely manner shall -
(A) Relieve an owner or operator of legal responsibility for compliance with any
applicable provisions of this part or with any other applicable Federal, State, or
local requirement; or
(B) Prevent the Administrator from implementing or enforcing this part or taking
any other action under the Act.
63.8(e) Performance evaluation of continuous monitoring systems:
(1) General. When required by a relevant standard, and at any other time the Administrator may
require under section 114 of the Act, the owner or operator of an affected source being
monitored shall conduct a performance evaluation of the CMS. Such performance evaluation
shall be conducted according to the applicable specifications and procedures described in this
section or in the relevant standard.
(2) Notification of performance evaluation. The owner or operator shall notify the Administrator
in writing of the date of the performance evaluation simultaneously with the notification of the
performance test date required under § 63.7(b) or at least 60 days prior to the date the
performance evaluation is scheduled to begin if no performance test is required.
(3)
(i) Submission of site-specific performance evaluation test plan. Before conducting a
required CMS performance evaluation, the owner or operator of an affected source shall
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develop and submit a site-specific performance evaluation test plan to the Administrator
for approval upon request. The performance evaluation test plan shall include the
evaluation program objectives, an evaluation program summary, the performance
evaluation schedule, data quality objectives, and both an internal and external QA
program. Data quality objectives are the pre-evaluation expectations of precision,
accuracy, and completeness of data.
(ii) The internal QA program shall include, at a minimum, the activities planned by
routine operators and analysts to provide an assessment of CMS performance. The
external QA program shall include, at a minimum, systems audits that include the
opportunity for on-site evaluation by the Administrator of instrument calibration, data
validation, sample logging, and documentation of quality control data and field
maintenance activities.
(iii) The owner or operator of an affected source shall submit the site-specific
performance evaluation test plan to the Administrator (if requested) at least 60 days
before the performance test or performance evaluation is scheduled to begin, or on a
mutually agreed upon date, and review and approval of the performance evaluation test
plan by the Administrator will occur with the review and approval of the site-specific test
plan (if review of the site-specific test plan is requested).
(iv) The Administrator may request additional relevant information after the submittal of
a site-specific performance evaluation test plan.
(v) In the event that the Administrator fails to approve or disapprove the site-specific
performance evaluation test plan within the time period specified in § 63.7(c)(3), the
following conditions shall apply:
(A) If the owner or operator intends to demonstrate compliance using the
monitoring method(s) specified in the relevant standard, the owner or operator
shall conduct the performance evaluation within the time specified in this subpart
using the specified method(s);
(B) If the owner or operator intends to demonstrate compliance by using an
alternative to a monitoring method specified in the relevant standard, the owner or
operator shall refrain from conducting the performance evaluation until the
Administrator approves the use of the alternative method. If the Administrator
does not approve the use of the alternative method within 30 days before the
performance evaluation is scheduled to begin, the performance evaluation
deadlines specified in paragraph (e)(4) of this section may be extended such that
the owner or operator shall conduct the performance evaluation within 60
calendar days after the Administrator approves the use of the alternative method.
Notwithstanding the requirements in the preceding two sentences, the owner or
operator may proceed to conduct the performance evaluation as required in this
section (without the Administrator's prior approval of the site-specific
performance evaluation test plan) if he/she subsequently chooses to use the
specified monitoring method(s) instead of an alternative.
(vi) Neither the submission of a site-specific performance evaluation test plan for
approval, nor the Administrator's approval or disapproval of a plan, nor the
Administrator's failure to approve or disapprove a plan in a timely manner shall -
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(A) Relieve an owner or operator of legal responsibility for compliance with any
applicable provisions of this part or with any other applicable Federal, State, or
local requirement; or
(B) Prevent the Administrator from implementing or enforcing this part or taking
any other action under the Act.
Performance Test Extensions
40 CFR § 60.8(a):
(a) Except as specified in paragraphs (a)(1),(a)(2), (a)(3), and (a)(4) of this section, within 60
days after achieving the maximum production rate at which the affected facility will be operated,
but not later than 180 days after initial startup of such facility, or at such other times specified by
this part, and at such other times as may be required by the Administrator under section 114 of
the Act, the owner or operator of such facility shall conduct performance test(s) and furnish the
Administrator a written report of the results of such performance test(s).
(1) If a force majeure is about to occur, occurs, or has occurred for which the affected
owner or operator intends to assert a claim of force majeure, the owner or operator shall
notify the Administrator, in writing as soon as practicable following the date the owner or
operator first knew, or through due diligence should have known that the event may
cause or caused a delay in testing beyond the regulatory deadline, but the notification
must occur before the performance test deadline unless the initial force majeure or a
subsequent force majeure event delays the notice, and in such cases, the notification shall
occur as soon as practicable.
(2) The owner or operator shall provide to the Administrator a written description of the
force majeure event and a rationale for attributing the delay in testing beyond the
regulatory deadline to the force majeure; describe the measures taken or to be taken to
minimize the delay; and identify a date by which the owner or operator proposes to
conduct the performance test. The performance test shall be conducted as soon as
practicable after the force majeure occurs.
(3) The decision as to whether or not to grant an extension to the performance test
deadline is solely within the discretion of the Administrator. The Administrator will
notify the owner or operator in writing of approval or disapproval of the request for an
extension as soon as practicable.
(4) Until an extension of the performance test deadline has been approved by the
Administrator under paragraphs (a)(1), (2), and (3) of this section, the owner or operator
of the affected facility remains strictly subject to the requirements of this part.
60.8(d):
(d) The owner or operator of an affected facility shall provide the Administrator at least 30 days
prior notice of any performance test, except as specified under other subparts, to afford the
Administrator the opportunity to have an observer present. If after 30 days notice for an initially
scheduled performance test, there is a delay (due to operational problems, etc.) in conducting the
scheduled performance test, the owner or operator of an affected facility shall notify the
Administrator (or delegated State or local agency) as soon as possible of any delay in the original
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test date, either by providing at least 7 days prior notice of the rescheduled date of the
performance test, or by arranging a rescheduled date with the Administrator (or delegated State
or local agency) by mutual agreement.
61.13(a):
(a) Except as provided in paragraphs (a)(3), (a)(4), (a)(5), and (a)(6) of this section, if required to
do emission testing by an applicable subpart and unless a waiver of emission testing is obtained
under this section, the owner or operator shall test emissions from the source:
(1) Within 90 days after the effective date, for an existing source or a new source which
has an initial startup date before the effective date.
(2) Within 90 days after initial startup, for a new source which has an initial startup date
after the effective date.
(3) If a force majeure is about to occur, occurs, or has occurred for which the affected
owner or operator intends to assert a claim of force majeure, the owner or operator shall
notify the Administrator, in writing as soon as practicable following the date the owner or
operator first knew, or through due diligence should have known that the event may
cause or caused a delay in testing beyond the regulatory deadline specified in paragraphs
(a)(1) or (a)(2) of this section or beyond a deadline established pursuant to the
requirements under paragraph (b) of this section, but the notification must occur before
the performance test deadline unless the initial force majeure or a subsequent force
majeure event delays the notice, and in such cases, the notification shall occur as soon as
practicable.
(4) The owner or operator shall provide to the Administrator a written description of the
force majeure event and a rationale for attributing the delay in testing beyond the
regulatory deadline to the force majeure; describe the measures taken or to be taken to
minimize the delay; and identify a date by which the owner or operator proposes to
conduct the performance test. The performance test shall be conducted as soon as
practicable after the force majeure occurs.
(5) The decision as to whether or not to grant an extension to the performance test
deadline is solely within the discretion of the Administrator. The Administrator will
notify the owner or operator in writing of approval or disapproval of the request for an
extension as soon as practicable.
(6) Until an extension of the performance test deadline has been approved by the
Administrator under paragraphs (a)(3), (a)(4), and (a)(5) of this section, the owner or
operator of the affected facility remains strictly subject to the requirements of this part.
63.7(a):
(2) Except as provided in paragraph (a)(4) of this section, if required to do performance testing
by a relevant standard, and unless a waiver of performance testing is obtained under this section
or the conditions of paragraph (c)(3)(ii)(B) of this section apply, the owner or operator of the
affected source must perform such tests within 180 days of the compliance date for such source.
***
(4) If a force majeure is about to occur, occurs, or has occurred for which the affected owner or
operator intends to assert a claim of force majeure:
(i) The owner or operator shall notify the Administrator, in writing as soon as practicable
following the date the owner or operator first knew, or through due diligence should have
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known that the event may cause or caused a delay in testing beyond the regulatory
deadline specified in paragraph (a)(2) or (a)(3) of this section, or elsewhere in this part,
but the notification must occur before the performance test deadline unless the initial
force majeure or a subsequent force majeure event delays the notice, and in such cases,
the notification shall occur as soon as practicable.
(ii) The owner or operator shall provide to the Administrator a written description of the
force majeure event and a rationale for attributing the delay in testing beyond the
regulatory deadline to the force majeure; describe the measures taken or to be taken to
minimize the delay; and identify a date by which the owner or operator proposes to
conduct the performance test. The performance test shall be conducted as soon as
practicable after the force majeure occurs.
(iii) The decision as to whether or not to grant an extension to the performance test
deadline is solely within the discretion of the Administrator. The Administrator will
notify the owner or operator in writing of approval or disapproval of the request for an
extension as soon as practicable.
(iv) Until an extension of the performance test deadline has been approved by the
Administrator under paragraphs (a)(4)(i), (a)(4)(ii), and (a)(4)(iii) of this section, the
owner or operator of the affected facility remains strictly subject to the requirements of
this part.
63.7(b)(2):
(2) In the event the owner or operator is unable to conduct the performance test on the date
specified in the notification requirement specified in paragraph (b)(1) of this section due to
unforeseeable circumstances beyond his or her control, the owner or operator must notify the
Administrator as soon as practicable and without delay prior to the scheduled performance test
date and specify the date when the performance test is rescheduled. This notification of delay in
conducting the performance test shall not relieve the owner or operator of legal responsibility for
compliance with any other applicable provisions of this part or with any other applicable Federal,
State, or local requirement, nor will it prevent the Administrator from implementing or enforcing
this part or taking any other action under the Act.
Compliance Extensions
CAA § 112(i)(3)(B), 42 USC § 7412(i)(3)(B):
(B) The Administrator (or a State with a program approved under subchapter V) may issue a
permit that grants an extension permitting an existing source up to 1 additional year to comply
with standards under subsection (d) if such additional period is necessary for the installation of
controls. An additional extension of up to 3 years may be added for mining waste operations, if
the 4-year compliance time is insufficient to dry and cover mining waste in order to reduce
emissions of any pollutant listed under subsection (b).
40 CFR § 63.6(i) Extension of compliance with emission standards
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(1) Until 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.
(2) Extension of compliance for early reductions and other reductions -
(i) Early reductions. Pursuant to section 112(i)(5) of the Act, if the owner or operator of
an existing source demonstrates that the source has achieved a reduction in emissions of
hazardous air pollutants in accordance with the provisions of subpart D of this part, the
Administrator (or the State with an approved permit program) will grant the owner or
operator an extension of compliance with specific requirements of this part, as specified
in subpart D.
(ii) Other reductions. Pursuant to section 112(i)(6) of the Act, if the owner or operator of
an existing source has installed best available control technology (BACT) (as defined in
section 169(3) of the Act) or technology required to meet a lowest achievable emission
rate (LAER) (as defined in section 171 of the Act) prior to the promulgation of an
emission standard in this part applicable to such source and the same pollutant (or stream
of pollutants) controlled pursuant to the BACT or LAER installation, the Administrator
will grant the owner or operator an extension of compliance with such emission standard
that will apply until the date 5 years after the date on which such installation was
achieved, as determined by the Administrator.
(3) Request for extension of compliance. Paragraphs (i)(4) through (i)(7) of this section concern
requests for an extension of compliance with a relevant standard under this part (except requests
for an extension of compliance under paragraph (i)(2)(i) of this section will be handled through
procedures specified in subpart D of this part).
(4)
(i)
(A) The owner or operator of an existing source who is unable to comply with a
relevant standard established under this part pursuant to section 112(d) of the Act
may request that the Administrator (or a State, when the State has an approved
part 70 permit program and the source is required to obtain a part 70 permit under
that program, or a State, when the State has been delegated the authority to
implement and enforce the emission standard for that source) grant an extension
allowing the source up to 1 additional year to comply with the standard, if such
additional period is necessary for the installation of controls. An additional
extension of up to 3 years may be added for mining waste operations, if the 1-year
extension of compliance is insufficient to dry and cover mining waste in order to
reduce emissions of any hazardous air pollutant. The owner or operator of an
affected source who has requested an extension of compliance under this
paragraph and who is otherwise required to obtain a title V permit shall apply for
such permit or apply to have the source's title V permit revised to incorporate the
conditions of the extension of compliance. The conditions of an extension of
compliance granted under this paragraph will be incorporated into the affected
source's title V permit according to the provisions of part 70 or Federal title V
regulations in this chapter (42 U.S.C. 7661), whichever are applicable.
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(B) Any request under this paragraph for an extension of compliance with a
relevant standard must be submitted in writing to the appropriate authority no
later than 120 days prior to the affected source's compliance date (as specified in
paragraphs (b) and (c) of this section), except as provided for in paragraph
(i)(4)(i)(C) of this section. Nonfrivolous requests submitted under this paragraph
will stay the applicability of the rule as to the emission points in question until
such time as the request is granted or denied. A denial will be effective as of the
date of denial. Emission standards established under this part may specify
alternative dates for the submittal of requests for an extension of compliance if
alternatives are appropriate for the source categories affected by those standards.
(C) An owner or operator may submit a compliance extension request after the
date specified in paragraph (i)(4)(i)(B) of this section provided the need for the
compliance extension arose after that date, and before the otherwise applicable
compliance date and the need arose due to circumstances beyond reasonable
control of the owner or operator. This request must include, in addition to the
information required in paragraph (i)(6)(i) of this section, a statement of the
reasons additional time is needed and the date when the owner or operator first
learned of the problems. Nonfrivolous requests submitted under this paragraph
will stay the applicability of the rule as to the emission points in question until
such time as the request is granted or denied. A denial will be effective as of the
original compliance date.
(ii) The owner or operator of an existing source unable to comply with a relevant
standard established under this part pursuant to section 112(f) of the Act may request that
the Administrator grant an extension allowing the source up to 2 years after the standard's
effective date to comply with the standard. The Administrator may grant such an
extension if he/she finds that such additional period is necessary for the installation of
controls and that steps will be taken during the period of the extension to assure that the
health of persons will be protected from imminent endangerment. Any request for an
extension of compliance with a relevant standard under this paragraph must be submitted
in writing to the Administrator not later than 90 calendar days after the effective date of
the relevant standard.
(5) The owner or operator of an existing source that has installed BACT or technology required
to meet LAER [as specified in paragraph (i)(2)(ii) of this section] prior to the promulgation of a
relevant emission standard in this part may request that the Administrator grant an extension
allowing the source 5 years from the date on which such installation was achieved, as determined
by the Administrator, to comply with the standard. Any request for an extension of compliance
with a relevant standard under this paragraph shall be submitted in writing to the Administrator
not later than 120 days after the promulgation date of the standard. The Administrator may grant
such an extension if he or she finds that the installation of BACT or technology to meet LAER
controls the same pollutant (or stream of pollutants) that would be controlled at that source by
the relevant emission standard.
(6)
(i) The request for a compliance extension under paragraph (i)(4) of this section shall
include the following information:
(A) A description of the controls to be installed to comply with the standard;
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(B) A compliance schedule, including the date by which each step toward
compliance will be reached. At a minimum, the list of dates shall include:
(1) The date by which on-site construction, installation of emission control
equipment, or a process change is planned to be initiated; and
(2) The date by which final compliance is to be achieved.
(3) The date by which on-site construction, installation of emission control
equipment, or a process change is to be completed; and
(4) The date by which final compliance is to be achieved;
(C)-(D)
(ii) The request for a compliance extension under paragraph (i)(5) of this section shall
include all information needed to demonstrate to the Administrator's satisfaction that the
installation of BACT or technology to meet LAER controls the same pollutant (or stream
of pollutants) that would be controlled at that source by the relevant emission standard.
(7) Advice on requesting an extension of compliance may be obtained from the Administrator (or
the State with an approved permit program).
(8) Approval of request for extension of compliance. Paragraphs (i)(9) through (i)(14) of this
section concern approval of an extension of compliance requested under paragraphs (i)(4)
through (i)(6) of this section.
(9) Based on the information provided in any request made under paragraphs (i)(4) through (i)(6)
of this section, or other information, the Administrator (or the State with an approved permit
program) may grant an extension of compliance with an emission standard, as specified in
paragraphs (i)(4) and (i)(5) of this section.
(10) The extension will be in writing and will -
(i) Identify each affected source covered by the extension;
(ii) Specify the termination date of the extension;
(iii) Specify the dates by which steps toward compliance are to be taken, if appropriate;
(iv) Specify other applicable requirements to which the compliance extension applies
(e.g., performance tests); and
(v)
(A) Under paragraph (i)(4), specify any additional conditions that the
Administrator (or the State) deems necessary to assure installation of the
necessary controls and protection of the health of persons during the extension
period; or
(B) Under paragraph (i)(5), specify any additional conditions that the
Administrator deems necessary to assure the proper operation and maintenance of
the installed controls during the extension period.
(11) The owner or operator of an existing source that has been granted an extension of
compliance under paragraph (i)(10) of this section may be required to submit to the
Administrator (or the State with an approved permit program) progress reports indicating
whether the steps toward compliance outlined in the compliance schedule have been reached.
The contents of the progress reports and the dates by which they shall be submitted will be
specified in the written extension of compliance granted under paragraph (i)(10) of this section.
(12)
(i) The Administrator (or the State with an approved permit program) will notify the
owner or operator in writing of approval or intention to deny approval of a request for an
extension of compliance within 30 calendar days after receipt of sufficient information to
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evaluate a request submitted under paragraph (i)(4)(i) or (i)(5) of this section. The
Administrator (or the State) will notify the owner or operator in writing of the status of
his/her application, that is, whether the application contains sufficient information to
make a determination, within 30 calendar days after receipt of the original application
and within 30 calendar days after receipt of any supplementary information that is
submitted. The 30-day approval or denial period will begin after the owner or operator
has been notified in writing that his/her application is complete.
(ii) When notifying the owner or operator that his/her application is not complete, the
Administrator will specify the information needed to complete the application and
provide notice of opportunity for the applicant to present, in writing, within 30 calendar
days after he/she is notified of the incomplete application, additional information or
arguments to the Administrator to enable further action on the application.
(iii) Before denying any request for an extension of compliance, the Administrator (or the
State with an approved permit program) will notify the owner or operator in writing of
the Administrator's (or the State's) intention to issue the denial, together with -
(A) Notice of the information and findings on which the intended denial is based;
and
(B) Notice of opportunity for the owner or operator to present in writing, within
15 calendar days after he/she is notified of the intended denial, additional
information or arguments to the Administrator (or the State) before further action
on the request.
(iv) The Administrator's final determination to deny any request for an extension will be
in writing and will set forth the specific grounds on which the denial is based. The final
determination will be made within 30 calendar days after presentation of additional
information or argument (if the application is complete), or within 30 calendar days after
the final date specified for the presentation if no presentation is made.
(i) The Administrator will notify the owner or operator in writing of approval or intention
to deny approval of a request for an extension of compliance within 30 calendar days
after receipt of sufficient information to evaluate a request submitted under paragraph
(i)(4)(ii) of this section. The 30-day approval or denial period will begin after the owner
or operator has been notified in writing that his/her application is complete. The
Administrator (or the State) will notify the owner or operator in writing of the status of
his/her application, that is, whether the application contains sufficient information to
make a determination, within 15 calendar days after receipt of the original application
and within 15 calendar days after receipt of any supplementary information that is
submitted.
(ii) When notifying the owner or operator that his/her application is not complete, the
Administrator will specify the information needed to complete the application and
provide notice of opportunity for the applicant to present, in writing, within 15 calendar
days after he/she is notified of the incomplete application, additional information or
arguments to the Administrator to enable further action on the application.
(iii) Before denying any request for an extension of compliance, the Administrator will
notify the owner or operator in writing of the Administrator's intention to issue the denial,
together with -
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(A) Notice of the information and findings on which the intended denial is based;
and
(B) Notice of opportunity for the owner or operator to present in writing, within
15 calendar days after he/she is notified of the intended denial, additional
information or arguments to the Administrator before further action on the
request.
(iv) A final determination to deny any request for an extension will be in writing and will
set forth the specific grounds on which the denial is based. The final determination will
be made within 30 calendar days after presentation of additional information or argument
(if the application is complete), or within 30 calendar days after the final date specified
for the presentation if no presentation is made.
(14) The Administrator (or the State with an approved permit program) may terminate an
extension of compliance at an earlier date than specified if any specification under paragraph
(i)(10)(iii) or (iv) of this section is not met. Upon a determination to terminate, the Administrator
will notify, in writing, the owner or operator of the Administrator's determination to terminate,
together with:
(i) Notice of the reason for termination; and
(ii) Notice of opportunity for the owner or operator to present in writing, within 15
calendar days after he/she is notified of the determination to terminate, additional
information or arguments to the Administrator before further action on the termination.
(iii) A final determination to terminate an extension of compliance will be in writing and
will set forth the specific grounds on which the termination is based. The final
determination will be made within 30 calendar days after presentation of additional
information or arguments, or within 30 calendar days after the final date specified for the
presentation if no presentation is made.
(15) [Reserved]
(16) The granting of an extension under this section shall not abrogate the Administrator's
authority under section 114 of the Act.
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APPENDIX D: Delegations of Authority
Delegation 7-127. Applicability Determinations
1200 TN 406
06/29/2020
1. AUTHORITY. To issue determinations pertaining to applicability of 40 CFR Parts 60, 61,
62, and 63, and pursuant to the Clean Air Act, including Sections 111(b), 111(d), 111(f),
111(h), 112(d), 112(f), 112(h), and 129 to a source.
2 TO WHOM DELEGATED.
a. The authority to issue applicability determinations of a multiregional nature or are of
national significance is delegated to the assistant administrator for the Office of Air
and Radiation.
b. The authority to issue applicability determinations that are region-specific is
delegated to regional administrators.
3 LIMITATIONS.
a. Prior to exercising the authority in 2.a, the OAR AA will consult with the AA in the
Office of Enforcement and Compliance Assurance, the Office of General Counsel,
and the affected regions.
b. Prior to exercising the authority in 2.b, regional administrators will consult, as
necessary, with the OAR AA and OECA AA, and with OGC. Regional administrators
must provide to OAR, on a quarterly basis and through a medium determined by
OAR, a summary and copies of their applicability determinations.
4 REDELEGATION AUTHORITY.
a. The authority delegated to the OAR AA may be redelegated to the branch chief level,
or equivalent, and no further.
b. The authority delegated to the regional administrators may be redelegated within each
individual region, respectively, to the branch chief level, or equivalent, and no
further.
c. An official who redelegates an authority retains the right to exercise or withdraw the
authority. Redelegated authority may be exercised by any official in the chain of
command to the official to whom it has been specifically delegated.
d. A copy of any redelegation of this authority must be provided to the OAR AA.
5 ADDITIONAL REFERENCES.
a. 40 CFR 60.5 and 61.06.
b. "How to Review and Issue Clean Air Act Applicability Determinations and
Alternative Monitoring for New Source Performance Standards and National
Emission Standards for Hazardous Air Pollutants" (February 1999), and any
superseding or related guidance.
c. This delegation, Applicability Determinations, supersedes Delegation 7-127 dated
January 18, 2017, (1200 TN406).
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Delegation 7-119. Performance Test
1200 TN 548
04/02/2002
1. AUTHORITY. To approve the use of a reference method with minor changes in test
methodology, to approve shorter sampling times and smaller sampling volumes when
necessitated by process variables, to specify the conditions of the performance test, to waive
the requirement for a performance test pursuant to Sections 111(f), 111(h), 112(d), 112(f) and
112(h) of the Clean Air Act if the owner or operator of an affected source has demonstrated
by other means that the affected source is in compliance.
2. TO WHOM DELEGATED. Regional Administrators.
3 LIMITATIONS. None
4. REDELEGATION AUTHORITY. This authority may be redelegated to the Branch Chief
level, or equivalent, and no further.
5 ADDITIONAL REFERENCES.
a. 40 CFR 63.7(e)(2)(i), 40 CFR 63.7(e)(2)(iii), 40 CFR 63.7(e)(2)(iv), and 63.7(h).
b. 40 CFR 61.13(h)(l)(i) and 40 CFR 61.13(h)(l)(iii).
c. 40 CFR 60.8(b)(1), 40 CFR 60.8(b)(4), and 40 CFR 60.8(b)(5).
d. 40 CFR 65.157(b), 40 CFR 65.158(a)(2)(i), and 40 CFR 65.158(a)(2)(iv).
e. 40 CFR 60.8(c), 61.13(e), 63.7(e)(1), 40 CFR 65.158(a)(1), 40 CFR 65.159(a), and 40
CFR 65.160(a).
6. SUPERSESSION. This delegation, Performance Test, and EPA Delegation 7-121,
Alternative Methods, supersede EPA Delegation 7-14, Specification or Approval of Changes
to Testing and Monitoring Methods and Procedures.
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Delegation 7-121. Alternative Methods
1200 TN 548
04/02/2002
1 AUTHORITY
a. To approve or disapprove alternatives to any monitoring methods required under 40
CFR Part 60, 61, 63, or 65 pursuant to Sections 111(f), 111(h), 112(d), 112(f) and
112(h) of the Clean Air Act.
b. To approve or disapprove alternative test methods, equivalent methods, alternative
standards, or procedures required under 40 CFR Part 60, 61, 63, or 65 pursuant to
Sections 111(f), 111(h), 112(d), 112(f) and 112(h) of the Clean Air Act.
2 TO WHOM DELEGATED.
a. Authority la. is delegated to Regional Administrators.
b. Authority lb. is delegated to the Assistant Administrator of the Office of Air and
Radiation.
3 LIMITATIONS. None
4 REDELEGATION AUTHORITY.
a. The authority in 2a. may be redelegated to the Branch Chief level, or equivalent, and
no further.
b. The authority in 2b. May be redelegated to the Director of the Office of Air Quality
Planning and Standards. This authority may be further redelegated to the Branch
Chief level, or equivalent, and it may not be redelegated further.
5 ADDITIONAL REFERENCES.
a. 40 CFR 60.8(b)(2), 40 CFR 60.8(b)(3), and 40 CFR 60.13(i).
b. 40 CFR 61.13(h)( 1 )(ii) and 40 CFR 61.14(g).
c. 40 CFR 63.6(g), 40 CFR 63.7(e)(2)(ii), 40 CFR 63.7(f), 40 CFR 63.8(b)(1), and 40
CFR 63.8(f).
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Other Relevant EPA Internal Delegations
Delegation 7-1: Approval of State NSPS Plans:
httns://intranet.ena.gov/ohr/rmnolicy/ads/dm/7-2.htm
Delegation 7-1: New Hazardous Source Review
https://intranet.eDa.sov/ohr/rmpolicy/ads/dm/7-3.htm
Delegation 7-5: Enforcement of Hazardous Emission Standards:
httm://intranetei)a.20v/ohr/rmi)olicy/ads/dm/7-5.htm
Delegation 7-7: Enforcement of Residential Wood Heater NSPS
https://intranet.eDa.sov/ohr/rmpolicy/ads/dm/7-7.htm
Delegation 7-10: Approval/Disapproval of State Implementation Plans [and 111(d) Plans]
httm://intramt.ei)a.2ov/ohr/rmm)licy/ads/dm/7-10.htm
Delegation 7-116: Compliance Extensions:
https://intranet.eDa.sov/ohr/rmpolicy/ads/dm/7-l 16.pdf
Delegation 7-117: Approval of Site-Specific Test Plans:
https://intrane t. epa. sov/ohr/rmpolicy/ads/drr, Mm
Delegation 7-120: Approval of Site-specific Performance Evaluation Test Plan:
https://intranet.eDa.sov/ohr/rmpolicy/ads/dTr, Mm
Delegation 7-122: Adjustment to Time Periods for Submitting Reports:
httDs://intmmt.eDQ.soy/ohr/rmDolicy/uds/drr> Mm
Delegation 7-139 Implementation and Enforcement of 111(d)(2) and 11 l(d)/(2)/l29(b)(3)
Federal Plans:
https://intranei.epasov/ohr/rmpolicv/ads/dm/7-139.htm
Delegation 7-156: Performance Test Rescheduling:
https://intramt.epasov/ohr/rmpolicy/ads/dm/7-156.pdf
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Authorities Retained by EPA:
Note: The following list reflects provisions that EPA has historically not delegated to air
agencies.68 This list is included for general information purposes only. To determine whether a
particular general provision has been delegated to a specific air agency, always consult the
relevant delegation document itself.
NSPS (part 60V
• 40 CFR § 60.4(b)
• 60.8(b)(2) & (3) (to the extent these involve major changes to/ alternative/ equivalent test
methods)
• 60.9
• 60.11(b) (with respect to alternative methods)
• 60.11(e)(7) & (8)
• 60.13(a)
• 60.13(d)(2)
• 60.13(g)
• 60.13(i) (to the extent these involve major changes to monitoring)
• Any other provisions specifically identified as non-delegable in each individual subpart.
Emissions Guidelines (parts 60 and 62):
• Part 60 subparts B, Ba, and C (requirements for states to adopt and submit plans, and
EPA review and approval)
• Other provisions specifically identified in individual Part 60 Emission Guidelines or Part
62 Federal Plans.
NESHAP (part 61):
61
04(b)
61
04(c)
61
05(c)
61
11
61
12(d)
61
13(h)(l)(ii)
61
14(d)
61
14(g)(l)(ii)
61
16
NESHAP (part 63):
• The following provisions of subpart A:
o 63.6(g) (Approval of Alternative Non-Opacity Emission Standards)
68 For background on EPA's policies concerning delegation of these provisions, see the Good Practices Manual for
Delegation of NSPS andNESHAPS (1983) (available at
https://www3.epa.gov/ttn/atw/] 12(l)/goodpracticesmanual081009.pdf) and a series of five memoranda from 1982-
1986 discussing part 60 and 61 delegable authorities (included as Attachment 2 to the now-superseded 1999
Manual).
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o 63.6(h)(9) (Approval of Alternative Opacity Standards)
o 63.7(e)(2)(ii) and (f) (Approval of Major Alternatives to Test Methods)
o 63.8(f) (Approval of Maj or Alternatives to Monitoring)
o 63.10(f) (Approval of Maj or Alternatives to Recordkeeping and Reporting)
• All of subparts B, C, D, and E
• Any other provisions specifically identified as non-delegable in each individual subpart.
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APPENDIX E: Checklist of Information
Relevant for Consultation
This checklist provides examples of the information that may be helpful for lead offices to
provide to consultees during the development of responses addressed in this manual.
For all types of formal requests, always include:
• Purpose of the consultation
• Facility's basic information (name, location)
• Description of unit(s), process(es), and control(s)
• Incoming request letter
• Draft EPA response (in the absence of a draft, include a summary of the request, an
outline of the response, or other relevant written materials)
• Relevant regulatory text and preamble language, as appropriate
On a case-by-case basis (as needed):
• Relevant agency guidance and policy documents
• Relevant previously issued formal responses (including conflicting ones)
• Inspection report or site visit memo
• Notes (including emails) related to conversations with facility and/or air agency
• Level of priority and urgency
• Political or public interest in the outcome
• Possible industry adverse reaction to a response, such as likelihood that the requestor
would seek judicial review
For Applicability Determinations:
• Facility's potential to emit or major/minor/area source status, if relevant
• Other site-specific information relevant to applicability
For Alternative Test Methods:
• Facility's current required test methods/procedures, with regulatory citations and any
relevant terms of the facility's permit(s)
• Previous stack test protocol and results
• Proposed alternative method(s) or method changes
• Detailed procedures for proposed alternative(s) or changes
• Justification for the proposed alternative(s) or changes, including design obstacles for
following EPA published methods
• Test data performed following EPA-approved method and proposed method or other
relevant data/information
For Alternative Monitoring Plans:
• Facility's current monitoring practices and parameters, with regulatory citations and any
relevant terms of the facility's permit(s)
• Monitoring data following current and proposed monitoring practices
• Facility's requested monitoring alternative
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• Standard operating practices for the proposed alternative
For Performance Test Waivers:
• Reason/justification for the waiver, including technical or economic infeasibility or
impracticality
For Compliance Extensions:
• Requested extension timeline
• Reason for the extension
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APPENDIX F: Process Flow Charts
Please see the following pages for flow charts outlining the procedures discussed in this manual.
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Process Manual for Responding to Requests Under CAA Sections 111. 112. and 129
Chart 1: Characterizing the Request
(References: Sections 2, 3, Appx A)
All of the following:
Written, signed letter
(can be PDF)
Explicit request for EPA
determination or approval
Based on full/complete facts
Receive Request
Determine if request
is formal or informal
Any of the following:
Telephone or email communication
Asks questions butno specific
request for EPA action
Hypothetical, not fully developed
All of the following:
• Explicitly requests
detemiination re: applicability
of a rule or portion of rule
• Site-specific
• Full/complete facts
• Request from source
•'Applka hilit\
Determination
(Chart 2.1)
Question related to any aspect
of a rule, including applicability
Usually broadly applicable
(not source-specific)
May be from source, delegated
air agency, or otha' stakeholders
Request from source for alternative
or change to the primary
compliance demonstration method
specified in a mle
Request from source for alta'native
or change to a compliance
demonstration method that
supplements a primary test method
OTHER REQUESTS:
Alternative Recordkeeping/Reporting
Alternative Reporting Schedule
Test Plan Submittal
Test Waiver
Test Extension (Force Majeure)
Compliance Deadline Extension
Other sub part-specific requests
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Process Manual for Responding to Requests Under CAA Sections 111. 112. and 129
Chart 2.1: Tiering Applicability Determinations
(References: Section 2.1)
CReceive Request^
Determine Tier,
Lead Office,
Consulting Offices
Multi-regional or
nationally significant
(precedential, substantial
external interest, or contentious)
Region-specific,
not nationally significant,
but complex technical/policy/
legal issues
Region-specific and routine
Lead: OAROAQPS/AQPD/OPG
Consult: OECA, OGC, Region
Lead: Region
(usually ARD w/ ECAD & ORC)
Consult: OAR/OAQPS. OECA
(as needed, OGC)
Lead: Region (usually ARD)
Consult: Otha' offices, asneeded
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Process Manual for Responding to Requests Under CAA Sections 111. 112. and 129
Chart 2.2: Tiering Regulatory Interpretations
(References: Section 2.2)
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Process Manual for Responding to Requests Under CAA Sections 111. 112. and 129
Chart 2.3: Tiering Alternative Test Methods
(References: Section 2.3)
Determine Type,
Tier, Lead Office,
Consulting Offices
Any of the following:
Uses unproven technology or
procedures, or
Entirely new method, or
Broadly applicable
Lead: OAR/OAQPS/AQAD/MTG
Consult: as needed, OECA, OGC, Region
LTses proven technology and is
within an existing test method,
but:
Potential to set national
precedent or
Potential to decrease
stringency of standard
Precedential/
complex
Routine
Lead: Region
Consult: OAR/OAQPS/AQAD/MTG
(as needed. OECA. OGC)
All of the following:
• LTses proven technology
• Within an existing meiiod
• Site-specific
• Not nationally significant or
precedential
• No potential to decrease
stringency of standard
Lead: Region
Consult: Other offices, asneeded
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Process Manual for Responding to Requests Under CAA Sections 111. 112. and 129
Chart 2.4: Tiering Alternative Monitoring
(References: Section 2.4)
Determine Type,
Tier, Lead Office,
Consulting Offices
Any of the following:
Uses unproven technology or
procedures, or
Entirely new method, or
Broadly applicable
Lead: Region
Consult: OECA. OAR/OAQPS/AQAEVMTG\
(as needed, OGC)
LTses proven technology and is
within an existing test method,
but:
• Potential to set national
precedent or
• Potential to decrease
stringency of standard
Precedential/
complex
Routine
All of the following:
• LTses proven technology
• Within an existing meiiod
• Site-specific
• Not nationally significant or
precedential
• No potential to decrease
stringency of standard
Lead: Region
Consult: Other offices, asneeded
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Process Manual for Responding to Requests Under CAA Sections 111. 112. and 129
Chart 3.1: Processing a Request: Initial Steps (Phase 1 of 3)
(References: Sections 3.1-3.5)
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Process Manual for Responding to Requests Under CAA Sections 111. 112. and 129
Chart 3.2: Processing a Request: Developing EPA's Response (Phase 2 of 3)
(References: Sections 3.6-3.9)
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Process Manual for Responding to Requests Under CAA Sections 111. 112. and 129
Chart 3.3: Processing a Request: Post-Signature Tasks (Phase 3 of 3)
(References: Sections 3.10-3.12)
Lead Office Responsibilities
r
To requestor
cc state/local
air agency
cc/bccEPA
consultees
Upload response,
abstract, heads' to
SharePoint
OAQPS
Responsibilities
Update AIS/ADI
(periodically)
FR Notice
announcing
ADI update
(periodically)
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