09/23/87

Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency

                            September 23, 1987


MEMORANDUM


SUBJECT:      Review of State Implementation Plans and Revision for
              Enforceability and Legal Sufficiency

FROM:         J. Craig Potter
              Assistant Administrator
                 for Air and Radiation

              Thomas L. Adams Jr.
              Assistant Administrator for Enforcement
                 and Compliance Monitoring

              Francis S. Blake
              General Counsel
              Office of General Counsel

TO:           Addressees


    One critical function that your offices perform is to assure that
regulations developed for stationary sources by the States under the Clean
Air Act are enforceable and legally sufficient.  Our regulations require
that the state implementation plans ( "SIPs" ) must "be adopted as rules and
regulations enforceable ( emphasis added ) by the State agency" ( 40 C.F.R.
Section 51.281 (1987) ).  We are concerned that review of SIPs for
enforceability has not been receiving adequate attention.  The Agency
sometimes experiences difficulties in its efforts to enforce the current
rules because they are not sufficiently clear.  The Regional Offices are at
the forefront of the federal SIP approval process.  The purpose of this
memorandum is to remind you of the importance of doing the review necessary
to assure that all SIP plans and revisions are enforceable and in
conformance with the Act.  Please do not forward for approval SIPs which
fail to satisfy the enforceability criteria in this memorandum.


Background

    Recent information indicates that the attention being paid to SIP
approvals is declining, particularly for enforceability.  The Office of
General Counsel review regulations as to their adequacy under applicable
laws and Agency policy, but not for enforceability.  This void is not being
filled by other offices.  Often, the problems with enforcing the regulations
are not immediately obvious and only become known where a case or issue
focuses on the particular regulation.  At the October 1986 Annapolis

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meeting of Air Program Directors and Regional Counsel Air Branch Chiefs, a
number of problems in recent enforcement cases due to difficulty in
interpreting and enforcing regulations were discussed.  With the recent work
being done to address the nonattainment problem, it is even more critical
that regulations be clear and enforceable.

    It is appropriate that the Regional air compliance staff and the
Regional Counsel's Office have primary responsibility for this
enforceability review because they have the most direct experience in
compliance and rule interpretation.  They also have resources allocated
through their workload models specifically for SIP review.


Timing of Review

    The Regions should try to review developing State SIP provisions prior
to final approval by the State, when the provisions are at their most
malleable stage.  In line with this, each Region should provide its States
with a Copy of the implementing guidance associated with this memorandum and
a briefing which outlines the enforceability requirements for new SIP
submittals.  If we provide the States with more explicit guidance and make
earlier contacts to resolve problems, we can avoid instances where EPA is
pressured to settle for a flawed regulation only because it is better than
its predecessor.


Enforceability Criteria

    Your review should ensure that the rules in question are clearly worded
and explicit in their applicability to the regulated sources.  Vague, poorly
defined rules must become a thing of the past.  SIP regulations that deviate
from this policy are to be disapproved pursuant to Section 110(a) of the
Clean Air Act, with appropriate references in the C.F.R.  Specifically, we
are concerned that the following issues be directly addressed.  The rule
should be clear as to who must comply and by what date.  The effect, if any,
of changed conditions ( e.g., redesignation to attainment ) should be set
forth.  The period over which compliance is determined and the relevant test
method to be used should be explicitly noted.  Provisions which exempt
facilities under certain sizes or emission levels must identify explicitly
how such size or level is determined.  Also, provisions which allow for
"alternate equivalent techniques" or "bubbles" or any sort of variation of
the normal mode of compliance must be completely and explicitly defined and
must make clear whether or not EPA case-by-case approval is required to make
such a method of compliance federally effective.

                                    -3-


Conclusion

    SIP revisions should be written clearly, with explicit language to
implement their intent.  The plain language of all rules, as well as the
related Federal Register notices, should be complete, clear and consistent
with the intended purpose of the rules.  Specific review for enforceability
will be a further step in improving the overall SIP process and structure.

    We have attached detailed guidance to assist you in implementing this
memorandum.

Attachment

Addressees:

         Regional Administrators
         Regions I-X

         Regional Counsels
         Region I-X

         Air Management Division Directors
         Regions I, III and IX

         Air and Waste Management Division Director
         Region II

         Air, Pesticides, and Toxic Management Division
         Directors
         Regions IV and VI

         Air and Radiation Division Director
         Region V

         Air and Toxic Division Directors
         Regions VII, VIII and X


cc:      Deputy Regional Administrators
         Regions I-X

         Regional Counsel
         Air Contacts
         Regions I-X

         Air Compliance Branch Chiefs
         Regions II, III, IV, V, VI, IX

         Air Program Branch Chiefs
         Region I-X

         Darryl Tyler, Director
         Control Programs Development Division

         Gerald Emison, Director
         Office of Air Quality Planning and Standards

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cc:      John S. Seitz, Director
         Stationary Source Compliance Division
         Office of Air Quality Planning and Standards

         Allan W. Eckert
         Associate General Counsel
         Air Division

         Michael S. Alushin
         Associate Enforcement Counsel
         Air Enforcement Division


Deputy Regional Administrators, Regions I-X; Regional Counsel, Air
Contacts, Regions I-X; Air Compliance Branch Chiefs, Regions II, III, IV, V,
VI, IX; Air Program Branch Chiefs, Region I-X; Director, Control Programs
Development Division; Director, Office of Air Quality Planning and
Standards; Director; Stationary Source Compliance Division; Office of Air
Quality Planning and Standards; Associate General Counsel, Air Division;
Associate Enforcement Counsel, Air Enforcement Division