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 Revisions for
Enforceability and Legal Sufficiency
FROM: Michael S. Alushin
Associate Enforcement Counsel
for Air Enforcement
Alan W. Eckert
Associate General Counsel
Air and Radiation Division
John S. Seitz, Director
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
TO: Addressees
This is to provide implementing guidance on the memorandum issued by J.
Craig Potter, Thomas Adams and Francis Blake on this date relating to review
of SIP plans and revisions for enforceability and legal sufficiency. We
urge you to provide copies of these memoranda to your State Agency
Directors.
Applicability
This guidance applies to all SIP proposals which have not completed the
state or local agency legal and procedural requirements for SIPs. For
proposals that have not yet been submitted to the Regional office for
action, the state and local agencies have forty-five (45) days from the date
of this guidance to submit such proposals for review in order for the
proposal to be considered under previous procedures. SIP packages currently
in Headquarters will undergo the usual review but will be returned to the
Regions if they contain deficiencies which raise significant questions as to
whether the regulation would be enforceable.
Enforceability Criteria
The notion of enforceability encompasses several concepts. At the most
basic level, a regulation must be within the statutory authority of the
promulgating agency. For example, some states have statutory restrictions
or prohibitions on the promulgation of regulations more restrictive than the
federal counterpart.
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Although we should generally defer to a State's interpretation of the scope
of its authority, when there is real doubt we should, at a minimum, consult
the responsible State Attorney to be certain the issue has been considered
and resolved. When appropriate, an opinion letter should be obtained from
the State General.
Please ensure that the following additional issues are directly
addressed.
o Applicability
It should be clear as to whom the regulations applies. The SIP should
include a description of the types of affected facilities. The rule should
also state in which areas the rule applies ( entire state, specific
counties, nonattainment, etc. ) and advise the reader that State
administrative changes require a formal SIP revision. Also, some
regulations might require a certain percentage reduction from sources. The
regulation should be clear as to how the baseline from which such a
reduction is to be accomplished is set. In some cases it may be necessary
for enforcement purposes and independent of Clean Air Act requirements for
the SIP to include an inventory of allowable and actual emissions from
course in the affected categories in order to set the above baseline.
o Time
The regulation should specify the required date of compliance. Is it
upon promulgation, or approval by EPA, or a future data certain? Future
effective dates beyond the approved or proposed attainment date should not
be allowed unless the related emissions reductions are not needed for
attainment. Also, the regulation should specify the important dates
required of any compliance schedule which is required to be submitted by the
source to the state.
o Effect of Changed Conditions
If changed circumstances affect an emission limit or other requirement,
the effect of changed conditions should be clearly specified. However, you
should not approve state regulations which tie the applicability of VOC
control requirements to the nonattainment status of the area and allow for
automatic nullification of the regulations if the area is redesignated to an
attainment status. Such regulations should continue to apply if an area is
redesignated from nonattainment to attainment status unless a new
maintenance demonstration supporting a change in the rule's applicability is
submitted and approved by EPA.
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o Standard of Conduct
The regulation must be sufficiently specific so that a source is fairly
on notice as to the standard it must meet. For example, "alternative
equivalent technique" provisions should not be approved without
clarification concerning the time period over which equivalency is measured
as well as whether the equivalency applies on a per source or per line basis
or is facility wide.
o Incorporation by Reference
Some federal regulations are inappropriate for adoption by reference.
For example, a state intending to enforce PSD regulations adopted by
reference must adopt 40 C.F.R. Section 52.21, not 40 C.F.R. Section 51.166,
as only the former is written in a form imposing obligations on permit
applicants. Even then, changes may have to be made to take into account the
difference between the State's situation and EPA's.
o Transfer Efficiency
Some states have attempted to provide particular VOC sources with
relaxations of compliance limits in return for improvements in the
efficiency with which the source use the pollutant producing material. Any
rules allowing transfer efficiency to be used in determining compliance must
be explicit as to when and under what circumstances a source may use
improved transfer efficiency as a substitute for meeting the SIP limit.
Such provisions must state whether EPA approval is required on a case-by-
case basis. Also, such provisions may not simply reference the NSPS auto
coating tables for the transfer efficiency. The improvement should be
demonstrated through testing and an appropriate test method should be set
forth. Implied improvements noted by the NSPS auto coating TE table are not
to be accepted at face value.
o Compliance Periods
SIP rules should describe explicitly the compliance time frame
associated with each emission limit ( e.g., instantaneous, stack test, 3
hour average or daily ). The Regions should not assume that a lack of
specificity implies instantaneous compliance. The time frame or method
employed must be sufficient to protect the standard involved.
o Equivalency Provisions and Discretionary Emission Limits
Certain provisions allow source to comply via "bubbles" or "alternate
equivalent techniques" or through mechanisms "as approved by the Director."
These provisions must make it clear as to whether EPA approval of state
granted alternative compliance techniques is required on a case-by-case
basis in order for the changed mode of compliance to replace the existing
federally enforceable requirement. If EPA case-by-case approval will not be
required, then specific, objective and replicable criteria must be set forth
for determining whether the new arrangement is truly equivalent in terms of
emission rates and ambient impact. Such procedures must be consistent with
the control levels specified in the overall SIP control strategy and must
meet other EPA policy requirements, including the "Emissions Trading
Policy," 51 Fed. Reg. 43814 (1986), in relevant instances.
o Recordkeeping
The SIP must state explicitly those records which sources are required
to keep to assess compliance for the time frame specified in the rule.
Records must be commensurate with regulatory requirements, and must be
available for examination on request. The SIP must give reporting schedules
and reporting formats. For example, these rules must require daily records
if the SIP requires daily compliance. Additionally, the recordkeeping must
be required such that failure to do so would be a separate violation in
itself.
o Test Methods
Each compliance provision must list how compliance is to be determined
and the appropriate test method to be used. The allowable averaging times
should be explicit. Both the test method and averaging times employed must
be sufficient to protect the ambient standard involved.
o Exemptions
If sources under a certain size are exempted from control requirements,
the regulation must identify how the size of a particular source is to be
determined.
o Malfunction and Variance Provision
Any malfunction or variance exemptions must be clear in their
substantive application and in how they are triggered. The rule must
specify what exceedance may be excused, how the standard is to be applied,
and who makes the determination.
Conclusion
We appreciate your attention to this matter and hope that the
specific review for enforceability will be a further step in improving the
overall SIP process and structure. To assist you, we have attached an
enforceability checklist. This checklist should be included as part of your
technical support packages in all future SIP packages.
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Please contact the appropriate staff attorney in the Office of General
Counsel or the Office of Enforcement and Compliance Monitoring should you
have any questions concerning issues of enforceability in particular
instances. Please contact Tom Helms, OAQPS, FTS-629-5526, for other
questions concerning implementation of this guidance.
Attachment
Addressees:
Regional Administrators
Regions I-X
Regional Counsels
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
Attachment
SIP APPROVABILITY CHECKLIST - ENFORCEABILITY
SIP Package No. ___________ Date Rec. ___________ Date Due _______________
STATE: ______________________________________________________________
SUBJECT MATTER: _____________________________________________________
_____________________________________________________________________
(Specific Provision and Description)
! State ! !
Enforceability !Submittal ! EPA ! Approvability
Analysis !( list ! Requirement !( Approvable or Not )
! responses )! !
______________________!____________!__________________!_____________________
! ! !
1. Applicability ! ! !
! ! !
a. What sources are! !Clarity !
being regulated?! ! !
! ! !
b. What criteria ! ! !
for exemption? ! !Clarity !
! ! !
c. Is calculation ! !Example !
procedure for ! !calculation or !
exemption ! !clear explanation !
clearly ! !how to determine !
specified? ! !exemption ( line !
! !by line, etc. ) !
! ! !
d. Is emission ! !Inventory !
inventory ! !including !
listed in the ! !allowable and !
background ! !actual emissions !
document of the ! !in source category!
attainment ! !should be !
demonstration? ! !included, for !
! !enforcement !
! !purposes and !
! !independent of any!
! !Clean Air Act !
! !requirements, in !
! !the attainment !
! !demonstration if !
! !such data is !
! !necessary for !
! !determining !
! !baselines in !
! !regulations. !
! ! !
e. Is the averaging! !The averaging !
time(s) used in ! !time in the rule !
the rule ! !must be consistent!
different from ! !with protecting !
that of the ! !the ambient !
ambient ! !standard in !
standard? ! !question. !
! !Normally, it !
! !should be equal to!
! !or shorter than !
! !the time !
! !associated with !
! !the standard. !
! !Longer term !
! !averaging is !
! !available only in !
! !limited instances !
! !provided that the !
! !ambient standard !
! !is not !
! !compromised. !
! ! !
! ! !
! ! !
! ! !
! ! !
f. What units of ! !Clearly stated in !
compliance ( lbs! !the rule !
VOC per gallon ! ! !
of solids ! ! !
applies less ! ! !
water, grains ! ! !
per standard ! ! !
cubic foot? ) ! ! !
! ! !
g. Is bubbling ! !Explicit !
or averaging ! !description of how!
of any type ! !averaging, !
allowed? If ! !bubbling, or !
yes, state ! !equivalency is to !
criteria. ! !be determined. !
Could a U.S. ! !VOC equivalency !
EPA inspector ! !must be on a !
independently ! !"solids applied" !
determine if the! !basis. Any method!
criteria were ! !must be !
met? Does ! !independently !
EPA have to ! !reproducible. !
approve each ! !Provision must be !
case? ! !explicit as to !
! !whether EPA !
! !case by case !
! !approval required.!
! !If provision !
! !intended to be !
! !"generic" then EPA!
! !bubble policy must!
! !be met. !
! ! !
! ! !
! ! !
! ! !
h. If there is a ! !Regulation may not!
redesignation, ! !automatically !
will this ! !allow for self !
change the ! !nullification upon!
emission ! !redesignation of !
limitations? ! !area to !
If yes, which ! !attainment. New !
ones and how? ! !maintenance !
! !demonstration !
! !required in order !
! !to drop !
! !regulation. !
2. Compliance ! ! !
Dates ! ! !
! ! !
a. What is ! !Must not be later !
compliance date?! !than approved or !
! !about to be !
b. What is the ! !approved date of !
attainment ! !attainment unless !
date? ! !emission !
! !reductions not !
! !necessary for !
! !attainment. In !
! !some cases, it !
! !will be necessary !
! !for the regulation!
! !to specify dates !
! !in compliance !
! !schedules that are!
! !required to be !
! !submitted by !
! !source to state !
! ! !
3. Specificity ! ! !
of Conduct ! ! !
! ! !
a. What test ! !Test method must !
method is ! !be explicitly !
required? ! !stated. !
! ! !
b. What is the ! !Averaging time and!
averaging time ! !application of !
in compliance ! !limit must be !
test method? ! !explicit. !
! ! !
c. Is a compliance ! ! !
calculation or ! ! !
evaluation ! ! !
required ( i.e.,! ! !
daily weighted ! ! !
average for ! ! !
VOC ). ! ! !
! ! !
d. If yes to "c," ! !Formula must be !
list the ! !explicit. !
formula, period ! ! !
of compliance, ! ! !
and/or ! ! !
evaluation ! ! !
method. ! ! !
! ! !
! ! !
! ! !
4. Incorporation by ! ! !
Reference ! ! !
! ! !
a. What is state ! ! !
authority for ! ! !
rulemaking? ! ! !
! ! !
b. Are methods/ ! ! !
rules ! ! !
incorporated by ! ! !
reference in the! ! !
right manner? ! ! !
! ! !
! ! !
5. Recordkeeping ! ! !
! ! !
a. What records are! !Clarity !
required to ! ! !
determine ! ! !
compliance? ! ! !
! ! !
b. In what form or ! !Records to be kept!
units ( lbs/gal,! !must be consistent!
gr/dscf, etc. ) ! !with units of !
must the records! !compliance in the !
be kept? On ! !performance !
what time basis ! !requirements, !
( instantaneous,! !including the !
hourly, ! !applicable time !
daily )? ! !period. !
! ! !
! ! !
c. Does the rule ! !There must be a !
affirmatively ! !clear separately !
require the ! !enforceable !
records to be ! !provision that !
kept? ! !requires records !
! !to be kept. !
! ! !
! ! !
6. Exemptions ! ! !
! ! !
a. List any ! !Must be clearly !
exemptions ! !defined and !
allowed. ! !distinguishable !
! !from what !
b. Is the criteria ! !constitutes a !
for application ! !violation. !
clear? ! ! !
! ! !
! ! !
7. Malfunction ! !Rule must specify !
Provisions ! !what exceedances !
! !may be excused, !
! !how the standard !
! !is to be applied, !
! !and who makes the !
! !determination. !
______________________!____________!__________________!_____________________
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