[Federal Register Volume 75, Number 227 (Friday, November 26, 2010)]
[Rules and Regulations]
[Pages 72719-72727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29628]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2008-0482; FRL-9231-1]
Approval and Promulgation of Implementation Plans; Idaho
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving numerous revisions to the Idaho State
Implementation Plan that were submitted to EPA by the State of Idaho on
May 22, 2003, April 2, 2004, July 13, 2005, May 5, 2006, April 16,
2007, May 12, 2008, and June 8, 2009. The revisions were submitted in
accordance with the requirements of section 110 and part D of the Clean
Air Act (hereinafter the Act or CAA). EPA is taking no action in this
rulemaking on a number of submitted rule revisions that are unrelated
to the purposes of the implementation plan.
DATES: This action is effective on December 27, 2010.
ADDRESSES: Copies of the State's SIP revision and other information
supporting this action are available for inspection at EPA Region 10,
Office of Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Suite
900, Seattle, Washington 98101.
FOR FURTHER INFORMATION CONTACT: Donna Deneen, EPA Region 10, Office of
Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Seattle,
Washington 98101, or at (206) 553-6706.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'',
``us'' or ``our'' are used, we mean EPA. Information is organized as
follows:
Table of Contents
I. Background for This Action
A. What revisions to the Idaho SIP does this action address?
B. What comments did we receive on our proposal for these
revisions?
1. Section 110(l)
a. Summary of Comments Regarding Section 110(l)
b. EPA Response to Section 110(l)-Related Comments
2. Section 193
a. Summary of Comments Regarding Section 193
b. EPA Response to Section 193-Related Comments
II. Final Action
A. Rules To Approve Into the Idaho SIP
B. Rules on Which No Action Is Taken
C. Scope of Action
III. Statutory and Executive Order Reviews
I. Background for This Action
Title I of the CAA, as amended by Congress in 1990, specifies the
general requirements for states to submit State Implementation Plans
(SIPs) to attain and/or maintain the National Ambient Air Quality
Standards (NAAQS) and EPA's actions regarding approval of those SIPs.
On May 22, 2003, April 2, 2004, July 13, 2005, May 5, 2006, April 16,
2007, May 12, 2008, and June 8, 2009, the Idaho Department of
Environmental Quality (IDEQ) submitted numerous revisions to the SIP
for the State of Idaho. On March 18, 2010, EPA solicited public comment
on a proposal to approve all of the revisions submitted by IDEQ, except
the identified provisions on which EPA proposed to take no action. 75
FR 13058. This final action will update the federally approved SIP to
reflect changes to the Rules for the Control of Air Pollution in Idaho
(IDAPA 58.01.01) that were made by IDEQ and reviewed and deemed
approvable into the Idaho SIP (Code of Federal Regulations part 52,
subpart N).
A. What revisions to the Idaho SIP does this action address?
Table 1 below identifies each SIP submittal addressed in this
action, including the submittal date, title and sections of IDAPA
58.01.01 that are revised. The submittals include Idaho's annual
incorporation by reference of various portions of the Code of Federal
Regulations (CFR), revised new source review (NSR) requirements,
revised permit to construct exemptions, updates and clarifications to
the State's permitting program, revisions related to the definition of
``regulated air pollutant,'' modified definitions for the State's major
and minor source permitting programs, procedures for transferring
permits, clarifications to sulfur content of fuels provisions, and
various editorial changes. The submittals also included provisions we
are taking no action on, including an electric generating unit
construction prohibition, demonstration of preconstruction compliance
with toxic standards, permit fee provisions, appeal provisions,
provisions relating to Tier 1 operating permits, facility emissions
cap, standards of performance of certain types of waste incinerators,
and various definition revisions. More information about each SIP
submittal, including a summary of the submittal and relevant background
information and analysis supporting our action, can be found in our
proposed approval. 75 FR 13058 (March 18, 2010).
Table 1--IDEQ SIP Submittals Addressed in This Action
------------------------------------------------------------------------
Sections of IDAPA
Date of submittal Title (with IDEQ 58.01.01 revised
Docket No.) or amended
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05/22/2003 \1\.................. Soil Vapor 58.01.01.210.
Extraction (58-
0101-0102).
2001 IBR of 58.01.01.008 and
Federal 107.
Regulations (58-
0101-0103).
Hospital/Medical/ 58.01.01.861.
Infectious Waste
Incinerators (58-
0101-0103).
[[Page 72720]]
Permit 58.01.01.209, 213,
Clarification (58- 228, 313, 317,
0101-0202). 395, 410, 511,
581, 700 and 710-
724.
2002 IBR of 58.01.01.008 and
Federal 107.
Regulations (58-
0101-0202).
Permitting Fees 58.01.01.01.006,
(58-0101-0104). 007, 200-202,
209, 224-228, 400-
402, 404, 407-
410, 470, 800-
802.
Title V Operating 58.01.01.387-399.
Permit Fees (58-
0101-0203).
04/02/2004...................... 2003 IBR of 58.01.01.008 and
Federal 107.
Regulations (58-
0101-0301).
07/13/2005...................... New Source Review 58.01.01.006, 200,
(58-0101-0304). 202, 204, 205,
206, 209, 225 and
401.
Permit To 58.01.01.220 and
Construct 222.
Exemptions (58-
0101-0401).
2004 IBR of 58.01.01.008, 107,
Federal 200, 204 and 205.
Regulations (58-
0101-0402).
05/05/2006 \2\.................. Regulated Air 58.01.01.006-008,
Pollutants (58- 133-135, 155,
0101-0503). 213, 220, 440-
442, 460, 511-
513, 560-561,
575, 581, and
679.
2005 IBR of 58.01.01.008, 107,
Federal 200, 204 and 205.
Regulations (58-
0101-0505).
Procedure for 58.01.01.006, 007,
Transfer of 209, and 404.
Permit To
Construct and
Tier II permits
(58-0101-0506).
Permit To 58.01.01.222.
Construct
Exemptions (58-
0101-0507).
04/16/2007...................... 2006 IBR of 58.01.01.008, 107,
Federal 200, 204, 205.
Regulations (58-
0101-0602).
Mercury (58-0101- 58.01.01.199.
0603).
05/12/2008...................... 2007 IBR of 58.01.01.008, 107,
Federal 200, 204, 205.
Regulations (58-
0101-0701).
06/08/2009 \1\.................. Sulfur Content of 58.01.01.725.
Fuels (58-0101-
0703).
2008 IBR of 58.01.01.008 and
Federal Rules (58- 107.
0101-0802).
------------------------------------------------------------------------
\1\ The May 22, 2003 and June 8, 2009 SIP submittals included IDEQ SIP
revisions for the control of nonmetallic mineral processing plants
(IDEQ Docket 58-0101-0002 and a portion of Docket 58-0101-0802), which
will be acted on in a separate action.
\2\ The May 6, 2006 submittal included IDEQ's SIP revision for the
facility emissions cap (IDEQ Docket 58-0101-0508) which will be acted
on in a separate action.
B. What comments did we receive on our proposal for these revisions?
National Resource Defense Council (NRDC) commented on EPA's
proposal to approve changes to Idaho's permitting programs for major
stationary sources, specifically the prevention of significant
deterioration (PSD) permit program and the nonattainment area (Part D)
permit program that incorporate EPA's ``2002 NSR Reform Rules.'' NRDC
primarily commented on the requirements of the Federal NSR rules, not
Idaho's application of the Federal requirements in its own rules.
Notably, NRDC participated in litigation challenging EPA's promulgation
of the 2002 NSR Reform Rules, where similar arguments were made by NRDC
and dismissed by the DC Circuit Court. New York v. EPA, 413 F.3d 3 (DC
Cir. 2005). NRDC's comments in this action, including exhibits, do not
raise any specific concerns with Idaho's rules, but rather, reiterate
arguments made by NRDC to the DC Circuit regarding Sections 110(l) and
193 of the Clean Air Act.\1\
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\1\ NRDC notes that, ``[t]he 2002 rule provisions considered by
the DC Circuit in New York v. EPA were EPA regulations, not state
ones. The court thus had no occasion to decide whether EPA could
approve any state's versions of any of the 2002 rule provisions
consistently with section 110(1) of the Act.'' NRDC Comments at 4.
The Idaho rules at issue here track the federally approved rules, as
upheld by the DC Circuit (which NRDC admits--NRDC Comments at 4-5)
and NRDC supported all its comments with information related to the
challenge of EPA's 2002 NSR Reform Rules. NRDC provided no Idaho-
specific suppport for its comments.
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Although NRDC's comments provide citations to nine sections of the
Idaho rules, the comments make no attempt to specifically explain or
demonstrate how those identified provisions are inconsistent with
either Section 110(l) or Section 193 of the CAA. Furthermore, NRDC
provides no evidence supporting its allegations that approval of the
specific provisions would result in a violation of the CAA or otherwise
be ``arbitrary, capricious, an abuse of discretion, and otherwise not
in accordance with law.'' NRDC Comments at 2. The NRDC comments include
a list of 31 exhibits which the comment letter incorporates by
reference into the comments. NRDC Comments at 1 and 11-12. The 31
exhibits appear to all be related to the DC Circuit Court case New York
v. EPA, and were either submitted to that Court for review, or are
relevant to that adjudication. In any event, none of the 31 exhibits
provides EPA with any comments specific to the Idaho rules at issue.
Despite the lack of Idaho-specific discussion in NRDC's letter, EPA has
responded to the few comments that appear related to the March 18,
2010, proposal to approve Idaho's SIP revisions pertaining to EPA's
2002 NSR Reform Rules.
1. Section 110(l)
a. Summary of comments regarding Section 110(l):
NRDC asserts that ``[t]he 2002 NSR Reform Rule provisions that were
not vacated by the DC Circuit in New York v. EPA [citation omitted]
allow previously-prohibited emissions-increases to occur.'' NRDC
Comments at 4. As a result, NRDC states that, ``it cannot be said of
Idaho's plan that it `will cause no degradation of air quality' '' and
``Idaho has made no `demonstration that the emissions that are allowed
by its revised rule but are prohibited by the current SIP would not
interfere with attainment or other applicable requirements.' '' NRDC
Comments at 5. Further, NRDC states that ``EPA has never made, or even
proposed to make, a finding that revisions to Idaho's permit provisions
so that they track the non-vacated provisions of the 2002 rule `will
cause no degradation of air quality' [citations omitted] or avoid
`interfering with any applicable requirements concerning attainment and
reasonable further progress toward attainment of the [NAAQS], or any
other applicable requirement of the Act,'' and that ``EPA fails to even
cite CAA Section 110(l) in the proposal.'' NRDC Comments at 5. Finally,
NRDC concludes that ``finalizing the EPA rulemaking proposal at issue
here would violate section 110(l) of the Act.'' NRDC Comments at 5.
b. EPA response to Section 110(l)-related comments:
EPA's 2002 NSR Reform Rules were upheld by the DC Circuit Court
which
[[Page 72721]]
reviewed them, with the exception of the pollution control project and
clean unit provisions (and the remanded matters). The three significant
changes in the 2002 NSR Reform Rules that were upheld by the DC Circuit
were (1) plantwide applicability limits (PALs), (2) the 2-in-10
baseline, and (3) the actual-to-projected actual emission test. The
Supplemental Environmental Analysis of the Impact of the 2002 Final NSR
Improvement Rules (November 21, 2002) (Supplemental Analysis) discussed
each of these three changes individually, and addresses some of the
issues raised by NRDC.
With regard to PALs, the Supplemental Analysis explains, ``The EPA
expects that the adoption of PAL provisions will result in a net
environmental benefit. Our experience to date is that the emissions
caps found in PAL-type permits result in real emissions reductions, as
well as other benefits.'' Supplemental Analysis at 6. EPA further
explained that,
Although it is impossible to predict how many and which sources
will take PALs, and what actual reductions those sources will
achieve for what pollutants, we believe that, on a nationwide basis,
PALs are certain to lead to tens of thousands of tons of reductions
of VOC from source categories where frequent operational changes are
made, where these changes are time-sensitive, and where there are
opportunities for economical air pollution control measures. These
reductions occur because of the incentives that the PAL creates to
control existing and new units in order to provide room under the
cap to make necessary operational changes over the life of the PAL.
Supplemental Analysis at 7. The Supplemental Analysis, and particularly
Appendix B, provides additional details regarding EPA's analysis of
PALs and anticipated associated emissions decreases.
With regard to the 2-in-10 baseline, EPA concluded that, ``The EPA
believes that the environmental impact from the change in baseline EPA
is now finalizing will not result in any significant change in benefits
derived from the NSR program.'' Supplemental Analysis at 13. This is
mainly because ``the number of sources receiving different baselines
likely represents a very small fraction of the overall NSR permit
universe, excludes new sources and coal fired power plants, and because
the baseline may shift in either direction, we conclude that any
overall consequences would be negligible.'' Supplemental Analysis at
14. Additional information regarding the 2-in-10 baseline changes is
available in the Supplemental Analysis, Appendix F.
With regard to the actual-to-projected actual test, EPA concluded,
``we believe that the environmental impacts of the switch to the
actual-to-projected actual test are likely to be environmentally
beneficial. However, as with the change to the baseline, we believe the
vast majority of sources, including new sources, new units, electric
utility steam generating units, and units that actually increase
emissions as a result of a change, will be unaffected by this change.
Thus, the overall impacts of the NSR changes are likely to be
environmentally beneficial, but only to a small extent.'' Supplemental
Analysis at 14 (see also Supplemental Analysis Appendix G).\2\
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\2\ For more information on the 2002 NSR Reform Rules, and its
supporting technical documents, see http://www.epa.gov/nsr/actions.html#2002 (last visited November 21, 2008).
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Section 110(l) of the CAA states that ``[t]he Administrator shall
not approve a revision of a plan if the revision would interfere with
any applicable requirement concerning attainment and reasonable further
progress * * * or any other applicable requirement of this chapter.''
Clean Air Act, 42 U.S.C. 7410(l). In ``Approval and Promulgation of
Implementation Plans; New Source Review; State of Nevada, Clark County
Department of Air Quality and Environmental Management,'' 69 FR 54006
(September 7, 2004), the EPA stated that Section 110(l) does not
preclude SIP relaxations. The Agency stated that Section 110(l) only
requires that the ``relaxations not interfere with specified
requirements of the Act including requirements for attainment and
reasonable further progress,'' and that, therefore, a state can relax
its SIP provisions if it is able to show that it can ``attain or
maintain the [National Ambient Air Quality Standards (NAAQS)] and meet
any applicable reasonable further progress goals or other specific
requirements.'' 69 FR at 54011-12.
As the commenter acknowledges, the Idaho PSD/NSR rules track the
Federal 2002 NSR Reform Rules. EPA did evaluate Idaho's rules
consistent with its evaluation of the Federal rules, and determined
that Idaho's rules were equivalent to the 2002 NSR Reform Rules.
Overall, as summarized above, EPA expects that changes in air quality
as a result of implementing Idaho's PSD/NSR rules will be consistent
with EPA's position on the Federal 2002 NSR Reform Rules--that there
will be somewhere between neutral and providing modest contribution to
reasonable further progress when the 2002 NSR Reform Rules are compared
to the pre-reform provisions. EPA's analysis for the environmental
impacts of these three components of the 2002 NSR Reform Rules is
informative of how Idaho's adoption of NSR Reform (based on the Federal
rules) will affect emissions. EPA has no reason to believe that the
environmental impacts will be different from those discussed in the
Supplemental Analysis for the 2002 NSR Reform Rules, and, thus,
approval of Idaho's SIP revision would not be contrary to Section
110(l) of the CAA.
As discussed above, NRDC cites to nine general sections of Idaho's
rules as provisions that would violate Section 110(l).\3\ Without
further specificity, however, it is not clear why or how NRDC believes
approval of these provisions would violate Section 110(l). Moreover,
NRDC has provided no Idaho-specific documentation that indicates that
EPA's analysis and conclusions regarding the impact of the 2002 NSR
Reform Rules, in the Supplemental Analysis, are not applicable to
Idaho's rules which mirror the Federal rules.
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\3\ While NRDC has not identified the specific provisions within
these sections in Idaho's submittal that they contend prevent the
State's revised plan from meeting the criteria in Section 110(l), by
its many references to EPA's 2002 NSR Reform Rules, EPA presumes
that NRDC is referring to the changes to the applicability
provisions for determining when modifications to existing major
stationary sources are subject to review (i.e., when a major
modification would occur). The responses to NRDC's comments that
follow are based on that presumption.
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EPA evaluated Idaho's rules in comparison with the existing Federal
rules, and determined that Idaho's rules were equivalent to the 2002
NSR Reform (Federal) Rules. EPA also considered the Supplemental
Analysis in reviewing NRDC's comments. EPA concluded that approval of
Idaho's SIP revision would not be contrary to Section 110(l) of the CAA
because they implement Federal provisions. This comparison was
discussed in the proposal to approve Idaho's SIP revision. Absent more
explicit information demonstrating that Idaho's plan for implementation
of a specific provision of its rules would interfere with any
applicable requirement of the Clean Air Act and thus should be
disapproved under Section 110(l), Idaho's SIP submission and the
Supplemental Analysis support approval and there is no basis to
determine that approval of Idaho's rules would violate Section 110(l).
Although NRDC has not identified the specific provisions within
these sections in Idaho's submittal that they contend prevent the
State's revised plan from meeting the criteria in Section 110(l), EPA
presumes that NRDC is referring to
[[Page 72722]]
the changes to the applicability provisions for determining when
modifications to existing major stationary sources are subject to
review (i.e., when a major modification would occur) because those
provisions of the 2002 NSR Reform Rules differ most from PSD and Part D
NSR rules currently approved in the Idaho SIP. With respect to major
modifications, IDEQ has informed EPA that it issued only one PSD permit
for a major modification in the ten years prior to adopting the 2002
NSR Reform Rules and has not issued a PSD permit for a major
modification in the five years since adopting the NSR Reform changes.
Given this permitting record, EPA does not believe that there is any
evidence that the change to the major modification applicability
provisions in the Idaho SIP resulting from Idaho's adoption of the 2002
NSR Reform Rules would interfere with any applicable requirement
concerning attainment or reasonable further progress or any other
applicable requirement of the CAA.
In addition, EPA does not believe that the change to the definition
of major modification has interfered, or will interfere, with Idaho's
ability to ensure reasonable further progress in any nonattainment
area. Of the five areas in Idaho that were designated nonattainment in
response to the 1990 Clean Air Act Amendments, all five have now
attained the applicable NAAQS. Three have been formally redesignated to
attainment, two before and one after Idaho revised its NSR rules
(Boise-Ada County CO, 67 FR 65713 (October 28, 2002; eff. December 27,
2002); Ada County (Boise) PM10, 68 FR 61106 (October 27, 2003, eff.
November 26, 2003); and Portneuf Valley (Pocatello) PM10, 71 FR 39574
(July 13, 2006, eff. August 14, 2006)). Two have been determined to
have attained the applicable NAAQS, one before and one after Idaho
revised its NSR rules (Pinehurst (Shoshone County) PM10, 66 FR 44304
(August 23, 2001, eff. October 22, 2001) and Sandpoint PM10, 75 FR
35302 (June 22, 2010, eff. August 23, 2010)). Since all nonattainment
areas have successfully attained the NAAQS, some before and some after
the revision to the NSR rules, EPA finds no basis to conclude that the
change to the rules would interfere with Idaho's ability to ensure
reasonable further progress in any nonattainment area. There are no
existing major sources of PM2.5 or PM2.5 precursors in the newly
designated Franklin County (Cache Valley) PM2.5 nonattainment area, so
the change to the Part D NSR rule will not affect Idaho's ability to
ensure reasonable further progress when it develops and submits the
attainment plan for that newly designated area.
Moreover, although NRDC acknowledges that ``110(l) requires * * * a
determination that the specific revision, when considered in the
context of the SIP elements already in place, can meet the Act's
attainment requirements,'' (citing Hall v. EPA, 273 F.3d 1146, 1152,
1159 (9th Cir. 2001) (emphasis added), NRDC's comments fail to consider
the other permitting rules in the Idaho SIP along with the revisions to
those rules that EPA is proposing to approve in this action. The Idaho
SIP includes a single ``permit to construct'' program (IDAPA
58.01.01.200 through 228) that includes requirements for the
construction and modification of stationary sources, including major
stationary sources in nonattainment areas (IDAPA 58.01.01.204) and
attainment or unclassifiable areas (IDAPA 58.01.01.205). Importantly,
the Idaho rules require that changes to existing major stationary
sources that are not subject to review under the provisions for major
sources are subject to the nonmajor source requirements of IDAPA
58.01.01.200 through 228 (see IDAPA 58.01.01.204.03 and
58.01.01.205.04). The nonmajor source requirements include the
requirement that no permit to construct shall be granted unless the
applicant shows that the stationary source or modification would not
cause or significantly contribute to a violation of any ambient air
quality standard (IDAPA 58.01.01.203.02). Thus, changes at existing
major stationary sources that would have undergone review as major
modifications under Idaho's existing PSD SIP but now may not be
reviewed as major modifications under Idaho's adoption of the 2002 NSR
Reform Rules must still undergo review as nonmajor changes and cannot
be constructed if they would cause or significantly contribute to a
violation of the NAAQS. Idaho's nonmajor new source review requirements
provide additional assurance that Idaho's adoption of the 2002 NSR
Reform rules will not interfere with the Idaho SIP's ability to attain
and maintain the NAAQS, and the commenter has provided no information
to the contrary.
2. Section 193
a. Summary of comments regarding Section 193:
NRDC states that NSR is a ``control requirement'' and thus the
requirements of Section 193 apply to the NSR rules at issue in the
Idaho SIP revision. NRDC Comments at 8. NRDC further alleges that
Idaho's revisions ``ensure that emissions will not be reduced as much
as under the preexisting rules. In fact, the modifications allow
emissions to increase in Idaho's nonattainment areas.'' NRDC Comments
at 9. Finally, NRDC states that ``because section 193 lies within part
D,'' ``if EPA approves Idaho's revised plan, that action will
additionally exceed the agency's authority under section 110(k)(3) and
violate section 100(l) [this appears to be a typo and should read
110(l)].'' NRDC Comments at 10.
b. EPA response to Section 193-related Comments:
The response to the Section 193 issues raised by NRDC involves many
of the same elements of the response above to the Section 110(l)
comments, which is also incorporated by reference here.
Section 193 states (in relevant part) that ``[n]o control
requirement in effect, or required to be adopted by an order,
settlement agreement, or plan in effect before November 15, 1990, in
any area which is a nonattainment area for any air pollutant may be
modified after November 15, 1990, in any manner unless the modification
insures equivalent or greater emission reductions of such air
pollutant.''
Assuming for purposes of this discussion that Section 193 does
apply to the instant action, as was discussed earlier in this notice,
EPA has previously determined and explained in the Supplemental
Analysis that implementation of the 2002 NSR Reform Rules still in
effect (that is, those not vacated by the D.C. Circuit in its New York
I decision) are expected to have at least a neutral environmental
benefit. Therefore, even if Section 193 did apply to this action, EPA
does not agree with commenter's assertions that the SIP submissions
approved in this action raise a Section 193 concern.
In addition, the core of NRDC's argument seems to revolve around
the DC Circuit Court decision in South Coast Air Quality Management
District v. EPA, 472 F.3d 882 (D.C. Cir. 2006) (finding that NSR
associated with the 1-hour ozone standard included control
requirements). At issue in South Coast was EPA's determination
regarding the revocation of the entire 1-hour ozone program (and
corresponding SIP elements), including all the 1-hour nonattainment NSR
elements, and whether such elements would continue to be required as
part of SIPs implementing the new (at that time) 8-hour ozone standard.
The facts in the South Coast case are thus distinguishable from the
instant matter where the Idaho SIP is merely being updated to include
changes to the 2002 Federal NSR Rules and, as discussed
[[Page 72723]]
above, those changes insure equivalent or greater emission reductions.
EPA is not removing the entirety of its Part D NSR program from the
Idaho SIP as it pertains to a particular NAAQS. Rather, EPA is simply
approving Idaho's SIP revisions that implement rules equivalent to
Federal rules; and as discussed earlier in this notice, EPA developed a
Supplemental Analysis to support adoption of the Federal rules. The
Idaho SIP will continue to operate with the full suite of NSR related
elements.\4\
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\4\ EPA also notes that there are only three nonattainment areas
in Idaho where the Part D NSR rules apply. There are no existing
major stationary sources within any of these nonattainment areas so
the rule provisions that define when a modification to an existing
major source would be subject to review do not actually apply to any
sources.
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II. Final Action
EPA is taking final action to approve all of the amendments to the
Rules for the Control of Air Pollution in Idaho as submitted by the
Director of IDEQ on May 22, 2003, April 2, 2004, July 13, 2005, May 5,
2006, April 16, 2007, May 12, 2008, and June 8, 2009, except for
certain sections listed below. This action will result in changes to
the Idaho SIP in 40 CFR part 52, subpart N.
A. Rules To Approve into the Idaho SIP
EPA approves into the SIP at 40 CFR part 52, subpart N, the Idaho
regulations listed in Table 2. It is important to note that in those
instances where IDEQ submitted multiple revisions to a single section
of IDAPA 58.01.01, the most recent version of that section (based on
state effective date) is incorporated into the SIP because it
supersedes all previous revisions.
Table 2--Idaho Regulations for Proposed Approval
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective date Explanation
----------------------------------------------------------------------------------------------------------------
58.01.01--Rules for the Control of Air Pollution in Idaho
----------------------------------------------------------------------------------------------------------------
006................................... General Definitions........... 4/11/2006 Except Section 006.66(b)
(re: state air toxics
in definition of
``modification'').
007................................... Definitions for the Purposes 4/11/2006
of Sections 200 through 225
and 400 through 461.
107................................... Incorporations by Reference... 5/8/2009 Except Section 107.03(g)
through (n) and (p).
133................................... Start-up, Shutdown and 4/11/2006
Scheduled Maintenance
Requirements.
134................................... Upset, Breakdown and Safety 4/11/2006
Requirements.
135................................... Excess Emission Reports....... 4/11/2006
155................................... Circumvention................. 4/11/2006
200................................... Procedures and Requirements 4/2/2008
for Permits to Construct.
201................................... Permit to Construct Required.. 7/1/2002
202................................... Application Procedures........ 4/6/2005
204................................... Permit Requirements for New 4/2/2008
Major Facilities or Major
Modifications in
Nonattainment Areas.
205................................... Permit Requirements for New 4/2/2008
Major Facilities or Major
Modifications in Attainment
or Unclassifiable Areas.
206................................... Optional Offsets for Permits 4/6/2005
to Construct.
209................................... Procedures for Issuing Permits 4/11/2006
213................................... Pre-Permit Construction....... 4/11/2006
220................................... General Exemption Criteria for 4/11/2006
Permit to Construct
Exemptions.
222................................... Category II Exemptions........ 4/11/2006
400................................... Procedures and Requirements 7/1/2002
for Tier II Operating Permits.
401................................... Tier II Operating Permit...... 4/6/2005 Except 401.01.a
(bubbles) and 401.04
(compliance date
extension).
402................................... Application Procedures........ 7/1/2002
404................................... Procedure for Issuing Permits. 4/11/2006
460................................... Requirements for Emission 4/11/2006
Reduction Credits.
511................................... Applicability................. 4/11/2006 ........................
512................................... Definitions................... 4/11/2006
513................................... Requirements.................. 4/11/2006
560................................... Notification to Sources....... 4/11/2006
561................................... General Rules................. 4/11/2006
575................................... Air Quality Standards and Area 4/11/2006
Classification.
581................................... Prevention of Significant 4/11/2006
Deterioration (PSD)
Increments.
679................................... Averaging Period.............. 4/11/2006
700................................... Particulate Matter Process 5/3/2003 More recent state rule
Weight Limitations. effective date.
725................................... Rules for Sulfur Content of 5/8/2009
Fuels.
----------------------------------------------------------------------------------------------------------------
B. Rules on Which No Action Is Taken
EPA is taking no action on the following rules:
58.01.01.008, Definitions for Purposes of Section 300 through 386
58.01.01.199, Electric Generating Unit Construction Prohibition
58.01.01.210, Demonstration of Preconstruction Compliance with Toxic
Standards
[[Page 72724]]
58.01.01.225, Permit to Construct Processing Fee
58.01.01.228, Appeals
58.01.01.313, 317, 387-399, 395, Procedures and Requirements for Tier I
Operating Permits
58.01.01.410, Appeals
58.01.01.175-181, Procedures and Requirements for Permits Establishing
a Facility Emissions Cap
58.01.01.861, Standards of Performance of Hospital/Medical/Infectious
Waste Incinerators
C. Scope of Action
Idaho has not demonstrated authority to implement and enforce IDAPA
Chapter 58 within ``Indian Country'' as defined in 18 U.S.C. 1151.\5\
Therefore, EPA proposes that this SIP approval not extend to ``Indian
Country'' in Idaho. See CAA sections 110(a)(2)(A) (SIP shall include
enforceable emission limits), 110(a)(2)(E)(i) (State must have adequate
authority under State law to carry out SIP), and 172(c)(6)
(nonattainment SIPs shall include enforceable emission limits). This is
consistent with EPA's previous approval of Idaho's PSD program, in
which EPA specifically disapproved the program for sources within
Indian Reservations in Idaho because the State had not shown it had
authority to regulate such sources. See 40 CFR 52.683(b). It is also
consistent with EPA's approval of Idaho's title V air operating permits
program. See 61 FR 64622, 64623 (December 6, 1996) (interim approval
does not extend to Indian Country); 66 FR 50574, 50575 (October 4,
2001) (full approval does not extend to Indian Country).
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\5\ ``Indian country'' is defined under 18 U.S.C. 1151 as: (1)
All land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running through
the reservation, (2) all dependent Indian communities within the
borders of the United States, whether within the original or
subsequently acquired territory thereof, and whether within or
without the limits of a State, and (3) all Indian allotments, the
Indian titles to which have not been extinguished, including rights-
of-way running through the same. Under this definition, EPA treats
as reservations trust lands validly set aside for the use of a Tribe
even if the trust lands have not been formally designated as a
reservation. In Idaho, Indian country includes, but is not limited
to, the Coeur d'Alene Reservation, the Duck Valley Reservation, the
Reservation of the Kootenai Tribe, the Fort Hall Indian Reservation,
and the Nez Perce Reservation as described in the 1863 Nez Perce
Treaty.
---------------------------------------------------------------------------
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the state,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by January 25, 2011. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: November 10, 2010.
Dennis J. McLerran,
Regional Administrator Region 10.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart N--Idaho
0
2. In Sec. 52.670(c), the table in paragraph (c) is amended:
0
a. By revising entries 006 and 007.
0
b. By revising entry 107.
0
c. By revising entry 200.
0
d. By revising entries 133 though 135.
0
e. By revising entry 155.
0
f. By revising entries 201 and 202.
0
g. By revising entries 204 through 206.
0
h. By revising entry 209.
0
i. By revising entry 213.
0
j. By revising entry 220.
0
k. By revising entry 222.
0
l. By revising entries 400 through 402.
[[Page 72725]]
0
m. By revising entry 404.
0
n. By revising entry 460.
0
o. By revising entries 511 through 513.
0
p. By revising entries 560 and 561.
0
q. By revising entry 575.
0
r. By revising entry 581.
0
s. By revising entry 679.
0
t. By revising entry 700.
0
u. By revising entry 725.
Sec. 52.670 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Idaho Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
State citation Title/subject State effective date EPA approval date Explanations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Idaho Administrative Procedures Act (IDAPA) 58.01.01--Rules for the Control of Air Pollution in Idaho
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
006............................. General Definitions 4/11/06, 7/1/02, 4/5/00, 11/26/2010 [Insert page number where Except Section
3/20/97, 5/1/94..................... the document begins] 006.55(b) (re:
state air toxics
in definition of
``modification'').
007............................. Definitions for the 4/11/06, 4/5/00, 6/30/95, 11/26/2010 [Insert page number where
Purposes of 5/1/95, 5/1/94...................... the document begins]
Sections 200
through 225 and
400 through 461.
* * * * * * *
107............................. Incorporations by 5/8/09, 3/30/07, 3/20/04, 11/26/2010 [Insert page number where Except Section
Reference. 7/1/97, 5/1/94...................... the document begins] 107.03(g) through
(n) and (p).
* * * * * * *
133............................. Start-up, Shutdown 4/11/06, 4/5/00, 3/20/97............. 11/26/2010 [Insert page number where
and Scheduled the document begins]
Maintenance
Requirements.
134............................. Upset, Breakdown 4/11/06, 4/5/00, 3/20/97............. 11/26/2010 [Insert page number where
and Safety the document begins]
Requirements.
135............................. Excess Emission 4/11/06, 4/5/00, 3/20/97............. 11/26/2010 [Insert page number where
Reports. the document begins]
* * * * * * *
155............................. Circumvention...... 4/11/06.............................. 11/26/2010 [Insert page number where
the document begins]
* * * * * * *
200............................. Procedures and 4/2/2008............................. 11/26/2010 [Insert page number where
Requirements for the document begins]
Permits to
Construct.
201............................. Permit to Construct 7/1/02............................... 11/26/2010 [Insert page number where
Required. the document begins]
202............................. Application 4/6/05, 7/1/02, 4/5/00, 11/26/2010 [Insert page number where
Procedures. 5/1/94.............................. the document begins]
* * * * * * *
204............................. Permit Requirements 4/2/08, 3/30/07, 4/6/05, 11/26/2010 [Insert page number where
for New Major 4/5/00, 5/1/94...................... the document begins]
Facilities or
Major
Modifications in
Nonattainment
Areas.
205............................. Permit Requirements 4/2/08, 3/30/07, 4/6/05.............. 11/26/2010 [Insert page number where
for New Major the document begins]
Facilities or
Major
Modifications in
Attainment or
Unclassifiable
Areas.
206............................. Optional Offsets 4/6/05............................... 11/26/2010 [Insert page number where
for Permits to the document begins]
Construct.
[[Page 72726]]
* * * * * * *
209............................. Procedures for 4/11/06, 4/6/05, 5/3/03, 11/26/2010 [Insert page number where
Issuing Permits. 7/1/02, 4/5/00, 3/19/99,............ the document begins]
3/23/98, 5/1/94.....................
* * * * * * *
213............................. Pre-Permit 4/11/06, 5/3/03, 4/5/00, 11/26/2010 [Insert page number where
Construction. 3/23/98............................. the document begins]
* * * * * * *
220............................. General Exemption 4/11/06, 4/5/00...................... 11/26/2010 [Insert page number where
Criteria for the document begins]
Permit to
Construct
Exemptions.
* * * * * * *
222............................. Category II 4/11/06, 4/5/00, 5/1/94, 11/26/2010 [Insert page number where
Exemptions. 7/1/97.............................. the document begins]
* * * * * * *
400............................. Procedures and 7/1/02............................... 11/26/2010 [Insert page number where
Requirements for the document begins]
Tier II Operating
Permits.
401............................. Tier II Operating 4/6/05, 7/1/02, 4/5/00, 11/26/2010 [Insert page number where Except 401.01.a
Permit. 5/1/94.............................. the document begins] (bubbles) and
401.04 (compliance
date extension).
402............................. Application 7/1/02, 5/1/94, 4/5/00, 11/26/2010 [Insert page number where
Procedures. 7/1/02.............................. the document begins]
* * * * * * *
404............................. Procedure for 4/11/06, 4/5/00, 5/1/94, 11/26/2010 [Insert page number where
Issuing Permits. 7/1/02.............................. the document begins]
* * * * * * *
460............................. Requirements for 4/11/06, 4/5/00, 5/1/94.............. 11/26/2010 [Insert page number where
Emission Reduction the document begins]
Credits.
* * * * * * *
511............................. Applicability...... 4/11/06.............................. 11/26/2010 [Insert page number where
the document begins]
512............................. Definitions........ 4/11/06, 5/1/94, 4/5/00.............. 11/26/2010 [Insert page number where
the document begins]
513............................. Requirements....... 4/11/06.............................. 11/26/2010 [Insert page number where
the document begins]
* * * * * * *
560............................. Notification to 4/11/06.............................. 11/26/2010 [Insert page number where
Sources. the document begins]
[[Page 72727]]
561............................. General Rules...... 4/11/06, 5/1/94, 3/15/02............. 11/26/2010 [Insert page number where
the document begins]
* * * * * * *
575............................. Air Quality 4/11/06.............................. 11/26/2010 [Insert page number where
Standards and Area the document begins]
Classification.
* * * * * * *
581............................. Prevention of 4/11/06, 5/3/03, 7/1/97, 5/1/94...... 11/26/2010 [Insert page number where
Significant the document begins]
Deterioration
(PSD) Increments.
* * * * * * *
679............................. Averaging Period... 4/11/06, 5/1/94...................... 11/26/2010 [Insert page number where
the document begins]
* * * * * * *
700............................. Particulate Matter 5/3/03, 4/5/00....................... 11/26/2010 [Insert page number where
Process Weight the document begins]
Limitations.
* * * * * * *
725............................. Rules for Sulfur 5/8/09, 5/1/94....................... 11/26/2010 [Insert page number where
Content of Fuels. the document begins]
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2010-29628 Filed 11-24-10; 8:45 am]
BILLING CODE 6560-50-P