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Delegation of Clean Air Act Authority

What is delegation for 40 CFR Parts 60, 61 and 63 Standards?
After individual NSPS and NESHAPs are promulgated, EPA may implement and enforce the requirements. State and local regulatory agencies often implement and enforce similar requirements by adopting analogous regulations under state or local authority. In addition, Clean Air Act sections 111 and 112 allow EPA to transfer primary implementation and enforcement authority for most of the federal standards to state, local, or tribal regulatory agencies. This transfer of authority is called delegation. Upon delegation of a standard, sources must send any required notifications or reports directly to the delegated agency. The delegated agency may also receive authority to make certain source-specific decisions that reflect flexibility allowed by the standard.

What is delegation for 40 CFR Part 60 Emission Guidelines and Part 62 State/Federal Plans?
Though 111(d)/129 delegations are similar to NSPS and NESHAP delegations, a primary difference is once individual Part 60 Emission Guidelines are promulgated, EPA or State and local regulatory agencies need a Federal Plan or State Plan approved in Part 62 to implement and enforce the requirements. EPA strongly encourages state and local agencies in states that do not submit approvable state plans to request delegation of the federal plan so that they can have primary responsibility.

What authorities does an agency receive with delegation?
The delegated agency becomes the primary implementation and enforcement authority for the delegated standard. In addition, the NSPS and NESHAPs programs provide some flexibility from the promulgated requirements in a number of ways, as specified in individual rules, General Provisions regulations, and the statute itself. Examples of authorities that may be delegated to State, local, or tribal agencies include the ability to issue or approve certain applicability determinations, compliance schedule extensions, or alternatives to testing or monitoring requirements. The level of EPA review for this flexibility is reflected in EPA's delegations of authority. The method for application and approval of this flexibility varies as specified in guidance or regulations.

How does delegation occur under 40 CFR Parts 60, 61 and 63 Standards?
In general, a state, local, or tribal agency must demonstrate adequate legal authorities and resources to receive delegation of federal standards. EPA Region 9 typically delegates NSPS and NESHAPs to state, local, or tribal agencies by letter. The delegation action is subsequently announced in the Federal Register and codified into 40 CFR 60.4(b), 61.04(b), or 63.99, as appropriate. Letters of delegation are posted if available in digital format.

How does delegation occur under 40 CFR Part 60 Emissions Guidelines and Part 62 State/Federal Plans?
There are two mechanisms for transferring implementation authority to State or Tribal agencies: (1) EPA approval of a State Plan; and (2) if a State does not submit or obtain approval of its own plan, EPA delegation to a State of the authority to implement certain portions of the Federal plan to the extent appropriate in a Memorandum of Agreement. The delegation action is approved in the Federal Register and codified into 40 CFR Part 62.

What authorities are not delegated?
In general, EPA does not delegate to state or local agencies the authority to make decisions that are likely to be nationally significant, or alter the stringency of the underlying standard. See Specific Authorities Retained by EPA.


Specific Authorities Retained By EPA

In general, EPA does not delegate to state or local agencies the authority to make decisions that are likely to be nationally significant, or alter the stringency of the underlying standards.

As additional assurance of national consistency, state and local agencies must send to the EPA Region's Air Enforcement program a copy of any written decisions made pursuant to the following delegated authorities:

  • Applicability determinations that state a source is not subject to a rule or requirement;
  • Approvals or determination of construction, reconstruction or modification;
  • Minor or intermediate site-specific changes to test methods or monitoring requirements; or
  • Site-specific changes or waivers of performance testing requirements.

40 CFR Part 60 NSPS

The following provisions of Subpart A are not delegated:

  • Sections 60.4(b),
  • 60.8(b),
  • 60.9,
  • 60.11(b),
  • 60.11(e),
  • 60.13(a),
  • 60.13(d)(2),
  • 60.13(g), and
  • 60.13(i).

40 CFR Part 60 Emission Guidelines and Part 62 Federal and State Plans

40 CFR Part 60 Subpart B and Subpart C discuss the Adoption and Submittal of State Plans for Designated Facilities and the Emission Guidelines and Compliance Times. They have not been delegated to state and local agencies. They describe requirements for states to adopt and submit plans for designated facilities. These State Plans must be reviewed and approved by EPA. The authority to approve State Plans cannot be delegated to states.  Each Emission Guideline under 40 CFR Part 60 and each Federal Plan under Part 62 lists specific authorities retained by EPA.  Please refer to each one for more information.

40 CFR Part 61 NESHAP

The following provisions of Subpart A are not delegated:

  • Sections 61.04(b),
  • 61.04(c),
  • 61.05(c),
  • 61.11,
  • 61.12(d),
  • 61.13(h)(1)(ii),
  • 61.14(d),
  • 61.14(g)(1)(ii), and
  • 61.16.

40 CFR Part 63 NESHAP for Source Categories (MACT Standards)

The following provisions of Subpart A are not delegated:

  • Section 63.6(g), Approval of Alternative Non-Opacity Emission Standards,
  • Section 63.6(h)(9), Approval of Alternative Opacity Standards,
  • Sections 63.7(e)(2)(ii) and (f), Approval of Major Alternatives to Test Methods
  • Section 63.8(f), Approval of Major Alternatives to Monitoring,
  • Section 63.10(f), Approval of Major Alternatives to Recordkeeping and Reporting
  • plus any other provisions specifically identified as non-delegable in each individual standard.

Subparts B, C, D, and E are not delegated to state and local agencies.