Approval and Promulgation of Implementation Plans; Idaho: Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient Air Quality Standard; Prevention of Significant Deterioration Greenhouse Gas Permitting Authority and Tailoring Rule, 21702-21714 [2012-8706]
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Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Proposed Rules
of CAA section 172(c)(3) and 40 CFR
51.915;
2. The reasonably available control
measures demonstration as meeting the
requirements of CAA section 172(c)(1)
and 40 CFR 51.912(d);
3. The reasonable further progress
demonstration as meeting the
requirements of CAA section 172(c)(2)
and 40 CFR 51.910;
4. The attainment demonstration as
meeting the requirements of CAA
section 172(c)(1) and 40 CFR 51.908;
5. The contingency measures for
failure to make RFP or to attain as
meeting the requirements of CAA
section 172(c)(9); and
6. The motor vehicle emission
budgets for the attainment year of 2008,
which are derived from the attainment
demonstration, as meeting the
requirements of CAA section 176(c) and
40 CFR part 93, subpart A.
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VI. 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
proposes to approve state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this proposed 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);
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• 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 proposed 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Ozone, Nitrogen
Dioxide, Volatile Organic Compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 30, 2012.
Keith Takata,
Acting Regional Administrator, EPA Region
IX.
[FR Doc. 2012–8729 Filed 4–10–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2010–0724, FRL–9657–3]
Approval and Promulgation of
Implementation Plans; Idaho:
Infrastructure Requirements for the
1997 8-Hour Ozone National Ambient
Air Quality Standard; Prevention of
Significant Deterioration Greenhouse
Gas Permitting Authority and Tailoring
Rule
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
the State Implementation Plan (SIP)
submittals from the State of Idaho
demonstrating that the Idaho SIP meets
the requirements of section 110(a)(1)
and (2) of the Clean Air Act (CAA) for
the National Ambient Air Quality
Standard (NAAQS) promulgated for
ozone on July 18, 1997. EPA is
SUMMARY:
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proposing to find that the current Idaho
SIP meets the following 110(a)(2)
infrastructure elements for the 1997
8-hour ozone NAAQS: (A), (B), (C),
(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K),
(L), and (M). EPA is taking no action on
CAA section 110(a)(2)(E)(ii) at this time.
We will address the requirements of this
sub-element in a separate action. EPA is
also proposing to approve a SIP revision
that applies Idaho’s Prevention of
Significant Deterioration (PSD) Program
to greenhouse gas (GHG) emitting
sources above certain thresholds,
updates Idaho’s SIP to incorporate by
reference revised versions of specific
federal regulations, and removes
unnecessary language from the SIP due
to the incorporation by reference of the
federal NAAQS and PSD regulations. In
addition, EPA is proposing to rescind
the Federal Implementation Plan (FIP)
put in place to ensure the availability of
a permitting authority for greenhouse
gas emitting sources in Idaho.
DATES: Comments must be received on
or before May 11, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R10–
OAR–2010–0724, by any of the
following methods:
• www.regulations.gov: Follow the
on-line instructions for submitting
comments.
• Email: R10–
Public_Comments@epa.gov.
• Mail: Kristin Hall, EPA Region 10,
Office of Air, Waste and Toxics (AWT–
107), 1200 Sixth Avenue, Suite 900,
Seattle, WA 98101.
• Hand Delivery/Courier: EPA Region
10, 1200 Sixth Avenue, Suite 900,
Seattle, WA 98101. Attention: Kristin
Hall, Office of Air, Waste and Toxics,
AWT–107. Such deliveries are only
accepted during normal hours of
operation, and special arrangements
should be made for deliveries of boxed
information.
Instructions: Direct your comments to
Docket ID No. EPA–R10–OAR–2010–
0724. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or email. The www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
which means EPA will not know your
identity or contact information unless
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you provide it in the body of your
comment. If you send an email
comment directly to EPA without going
through www.regulations.gov your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy
during normal business hours at the
Office of Air, Waste and Toxics, EPA
Region 10, 1200 Sixth Avenue, Seattle,
WA 98101.
FOR FURTHER INFORMATION CONTACT:
Kristin Hall at telephone number: (206)
553–6357, email address:
hall.kristin@epa.gov, or the EPA Region
10 address located in the ADDRESSES
section.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we’’, ‘‘us’’ or ‘‘our’’ are used, we mean
EPA. Information is organized as
follows:
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Table of Contents
I. What action is EPA proposing?
II. What is the background for the action that
EPA is proposing?
a. Section 110(a)(1) and (2)
b. Greenhouse Gas (GHG) Component of
PSD Programs
c. Annual Incorporation by Reference (IBR)
of Federal Regulations
III. What infrastructure elements are required
under sections 110(a)(1) and (2)?
IV. What is the scope of action on
infrastructure submittals?
V. What is EPA’s analysis of Idaho’s
submittal?
VI. Scope of Proposed Action
VII. Proposed Action
VIII. Statutory and Executive Order Reviews
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I. What action is EPA proposing?
EPA is proposing to approve the State
Implementation Plan (SIP) submittals
from the State of Idaho demonstrating
that the SIP meets the requirements of
section 110(a)(1) and (2) of the Clean Air
Act (CAA) for the National Ambient Air
Quality Standard (NAAQS) promulgated
for ozone on July 18, 1997. Section
110(a)(1) of the CAA requires that each
state, after a new or revised NAAQS is
promulgated, review their SIPs to
ensure that they meet the requirements
of the ‘‘infrastructure’’ elements of
section 110(a)(2). The Idaho Department
of Environmental Quality (DEQ)
submitted a certification to EPA on
September 15, 2008, certifying that
Idaho’s SIP meets the infrastructure
obligations for the 1997 8-hour ozone
and 1997 PM2.5 NAAQS. The
certification included an analysis of
Idaho’s SIP as it relates to each section
of the infrastructure requirements with
regard to the 1997 8-hour ozone and
1997 PM2.5 NAAQS. Subsequently, on
June 24, 2010, Idaho submitted an
updated certification to EPA for CAA
sections 110(a)(2)(D) and 110(a)(2)(G)
for multiple NAAQS, including the
1997 8-hour ozone NAAQS. EPA is
proposing to find that the Idaho SIP
meets the following 110(a)(2)
infrastructure elements for the 1997 8hour ozone NAAQS: (A), (B), (C), (D)(ii),
(E)(i), (E)(iii), (F), (G), (H), (J), (K), (L),
and (M). This action does not address
infrastructure requirements with respect
to the 1997 PM2.5 NAAQS which EPA
intends to act on at a later time.
EPA is also proposing to approve
portions of a SIP revision submitted by
Idaho DEQ on June 20, 2011. This SIP
revision includes updates to the
incorporation by reference of certain
federal regulations, changes to Idaho’s
rules on the sulfur content of fuels, and
revisions to sections of the Idaho SIP
that have become unnecessary due to
the incorporation by reference of federal
NAAQS and PSD regulations. In this
action, EPA is proposing to approve a
portion of the June 20, 2011, SIP
revision that applies Idaho’s Prevention
of Significant Deterioration (PSD)
Program to greenhouse gas (GHG)
emitting sources at the emissions
thresholds and in the same time frames
as those specified in the PSD and Title
V GHG Tailoring Final Rule (Tailoring
Rule) (75 FR 31514, June 3, 2010). This
proposed revision addresses the flaws
discussed in EPA’s SIP call to states
which found that several state SIPs,
including Idaho’s, did not apply PSD to
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GHG-emitting sources.1 EPA
subsequently issued a FIP which
included Idaho.2 Upon final approval of
this GHG-related PSD program revision,
EPA is proposing to rescind the FIP at
40 CFR 52.37 which provides for EPA
to be the PSD permitting authority for
GHG-emitting sources in Idaho.
EPA is also proposing to approve the
portion of the June 20, 2011, revision
that updates the incorporation by
reference of the following regulations
revised as of July 1, 2010: Requirements
for Preparation, Adoption, and
Submittal of Implementation Plans, 40
CFR part 51; National Primary and
Secondary Ambient Air Quality
Standards, 40 CFR part 50; Approval
and Promulgation of Implementation
Plans, 40 CFR part 52; Ambient Air
Monitoring Reference and Equivalent
Methods, 40 CFR part 53; and Ambient
Air Quality Surveillance, 40 CFR part
58. EPA is also proposing to approve the
addition of the incorporation by
reference of the final rule for the
Primary National Air Quality Standards
for Sulfur Dioxide (75 FR 35520, June
22, 2010). EPA is not acting on the
portions of the June 20, 2011, SIP
revision that are not related to the
criteria pollutants regulated under title
I of the CAA or the requirements for
SIPs under section 110 of the Act.
Finally, EPA is proposing to approve the
portions of the June 20, 2011, revision
that remove language from the Idaho SIP
that has become unnecessary due to
Idaho’s incorporation by reference of the
federal NAAQS at 40 CFR part 50 and
the federal PSD regulations at 40 CFR
52.21. Specifically, EPA is proposing to
approve the removal of the subsections
of IDAPA 58.01.01.577 ‘‘Ambient Air
Quality Standards for Specific
Pollutants’’ that relate to pollutants for
which EPA has promulgated a NAAQS,
and which are now unnecessary because
Idaho has incorporated the federal
NAAQS by reference into the state SIP
at IDAPA 58.01.01.107. EPA is also
proposing to approve the changes to
Idaho’s PSD regulations at IDAPA
58.01.01.581.01 to remove the
increments table in its entirety, and to
instead reference the federal PSD
increment requirements contained in 40
CFR 52.21(c), which are incorporated by
reference in the Idaho SIP at IDAPA
58.01.01.107. EPA is not acting on the
revision to IDAPA 58.01.01.008 because
1 Action to Ensure Authority to Issue Permits
Under the PSD Program to Sources of GHG
Emissions: Finding of Substantial Inadequacy and
SIP Call (75 FR 77698, Dec. 13, 2010).
2 Action to Ensure Authority to Issue Permits
under the PSD Program to Sources of GHG
Emissions: Federal Implementation Plan (75 FR
82246, Dec. 30, 2010).
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it is related to Idaho’s Tier I Operating
Permit Program required under title V of
the CAA and is not part of the SIP. In
addition, EPA is not acting on the
revision to IDAPA 58.01.01.751 because
it is related to a non-criteria pollutant
and is not part of the SIP. The proposed
revisions to Idaho’s rules for the sulfur
content of fuels are not being acted on
at this time. EPA intends to address the
remainder of the June 20, 2011, SIP
revision in a subsequent rulemaking.
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II. What is the background for the
action that EPA is proposing?
a. Section 110(a)(1) and (2)
On July 18, 1997, EPA promulgated a
new NAAQS for ozone. EPA revised the
ozone NAAQS to provide an 8-hour
averaging period which replaced the
previous 1-hour averaging period, and
the level of the NAAQS was changed
from 0.12 parts per million (ppm) to
0.08 ppm (62 FR 38856).
The CAA requires SIPs meeting the
requirements of sections 110(a)(1) and
(2) be submitted by states within 3 years
after promulgation of a new or revised
standard. Sections 110(a)(1) and (2)
require states to address basic SIP
requirements, including emissions
inventories, monitoring, and modeling
to assure attainment and maintenance of
the standards, so-called ’’infrastructure’’
requirements. States were required to
submit such SIPs for the 1997 8-hour
ozone NAAQS to EPA no later than June
2000. However, intervening litigation
over the 1997 8-hour ozone standard
created uncertainty about how to
proceed, and many states did not
provide the required infrastructure SIP
submissions for the newly promulgated
standard.
To help states meet this statutory
requirement for the 1997 ozone NAAQS,
EPA issued guidance to address
infrastructure SIP elements under
section 110(a)(1) and (2).3 This guidance
provides that to the extent an existing
SIP already meets the section 110(a)(2)
requirements, states need only to certify
that fact via a letter to EPA. Section
110(a) imposes the obligation upon
states to make a SIP submission to EPA
for a new or revised NAAQS, but the
contents of that submission may vary
depending upon the facts and
circumstances. In particular, the data
and analytical tools available at the time
the state develops and submits the SIP
for a new or revised NAAQS affects the
3 William T. Harnett, Director, Air Quality Policy
Division, Office of Air Quality Planning and
Standards. ‘‘Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 1997 8-hour
Ozone and PM2.5 National Ambient Air Quality
Standards.’’ Memorandum to EPA Air Division
Directors, Regions I–X, October 2, 2007.
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content of the submission. The contents
of such SIP submissions may also vary
depending upon what provisions the
state’s federally-approved SIP already
contains. In the case of the 1997 8-hour
ozone NAAQS, states typically have met
the basic program elements required in
section 110(a)(2) through earlier SIP
submissions in connection with
previous ozone standards.
b. Greenhouse Gas (GHG) Component of
PSD Programs
This section briefly summarizes EPA’s
recent GHG-related actions that provide
the background for this action. Please
see the preambles for these GHG-related
actions for more background.
EPA has recently undertaken a series
of actions pertaining to the regulation of
GHGs that, although for the most part
are distinct from one another, establish
the overall framework for the proposed
action on the Idaho SIP. Four of these
actions include, as they are commonly
called, the ‘‘Endangerment Finding’’
and ‘‘Cause or Contribute Finding,’’
which EPA issued in a single final
action (74 FR 66496, Dec. 15, 2009), the
‘‘Johnson Memo Reconsideration’’ (75
FR 17004, Apr. 2, 2010), the ‘‘Light-Duty
Vehicle Rule’’ (75 FR 25324, May 7,
2010), and the ‘‘Tailoring Rule’’ (75 FR
31514, June 3, 2010). Taken together
and in conjunction with the CAA, these
actions established regulatory
requirements for GHGs emitted from
new motor vehicles and new motor
vehicle engines; determined that such
regulations, when they took effect on
January 2, 2011, subjected GHGs
emitted from stationary sources to PSD
requirements; and limited the
applicability of PSD requirements to
GHG sources on a phased-in basis. EPA
took this last action in the Tailoring
Rule, which more specifically,
established appropriate GHG emission
thresholds for determining the
applicability of PSD requirements to
GHG-emitting sources.
c. Annual Incorporation by Reference
(IBR) of Federal Regulations
Idaho incorporates by reference
various portions of Federal regulations
codified in the Code of Federal
Regulations (CFR). However, when a
Federal regulation originally
incorporated by reference into the Idaho
SIP at IDAPA 58.01.01 on a specific date
is subsequently changed, IDAPA
58.01.01 becomes out of date, and in
some cases, inconsistent with the
revised version of the Federal
regulation. To avoid potential
inconsistencies and keep IDAPA
58.01.01 up to date with changes in
Federal regulations, Idaho submits a
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revision to its SIP on an annual basis,
updating the IBR citations in IDAPA
58.01.01 so they reflect any changes
made to the Federal regulations during
that year. Idaho’s current SIP includes
the approved incorporation by reference
of specific federal regulations revised as
of July 1, 2008. In Idaho’s June 20, 2011,
SIP revision, the state has included the
2009 and 2010 annual IBR updates. The
updates for the 2009 annual IBR update
are superseded by the 2010 annual IBR
update which revises the citation dates
for specific federal regulations as of July
1, 2010.
III. What infrastructure elements are
required under sections 110(a)(1) and
(2)?
Section 110(a)(1) provides the
procedural and timing requirements for
SIP submissions after a new or revised
NAAQS is promulgated. Section
110(a)(2) lists specific elements that
states must meet for ‘‘infrastructure’’ SIP
requirements related to a newly
established or revised NAAQS. These
requirements include SIP infrastructure
elements such as modeling, monitoring,
and emissions inventories that are
designed to assure attainment and
maintenance of the NAAQS. The
requirements, with their corresponding
CAA subsection, are listed below:
• 110(a)(2)(A): Emission limits and
other control measures.
• 110(a)(2)(B): Ambient air quality
monitoring/data system.
• 110(a)(2)(C): Program for
enforcement of control measures.
• 110(a)(2)(D): Interstate transport.
• 110(a)(2)(E): Adequate resources.
• 110(a)(2)(F): Stationary source
monitoring system.
• 110(a)(2)(G): Emergency power.
• 110(a)(2)(H): Future SIP revisions.
• 110(a)(2)(I): Areas designated
nonattainment and meet the applicable
requirements of part D.
• 110(a)(2)(J): Consultation with
government officials; public
notification; and Prevention of
Significant Deterioration (PSD) and
visibility protection.
• 110(a)(2)(K): Air quality modeling/
data.
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/
participation by affected local entities.
EPA’s October 2, 2007, guidance
clarified that two elements identified in
section 110(a)(2) are not governed by the
3 year submission deadline of section
110(a)(1) because SIPs incorporating
necessary local nonattainment area
controls are not due within 3 years after
promulgation of a new or revised
NAAQS, but rather are due at the time
the nonattainment area plan
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requirements are due pursuant to CAA
section 172. These requirements are:
(i) Submissions required by section
110(a)(2)(C) to the extent that subsection
refers to a permit program as required in
part D Title I of the CAA, and (ii)
submissions required by section
110(a)(2)(I) which pertain to the
nonattainment planning requirements of
part D, Title I of the CAA. As a result,
this action does not address
infrastructure elements related to
section 110(a)(2)(C) with respect to
nonattainment new source review (NSR)
or 110(a)(2)(I).
This action also does not address the
requirements of 110(a)(2)(D(i) for the
1997 8-hour ozone NAAQS which have
been addressed by two separate actions
issued by EPA. On November 26, 2010,
EPA approved the SIP submittal from
the Idaho Department of Environmental
Quality to address provisions of CAA
section 110(a)(2)(D)(i) for the 1997 8hour ozone NAAQS (75 FR 72705). The
provisions approved in this action
included three prongs of 110(a)(2)(D)(i):
significant contribution to
nonattainment of these NAAQS in any
other state (prong 1); interference with
maintenance of these NAAQS by any
other state (prong 2); and interference
with any other state’s required measures
to prevent significant deterioration
(PSD) of its air quality with respect to
these NAAQS (prong 3). Subsequently,
on June 22, 2011, EPA approved
portions of a SIP revision submitted by
Idaho as meeting the requirements of
the fourth prong of CAA section
110(a)(2)(D)(i) as it applies to visibility
for the 1997 8-hour ozone NAAQS
(prong 4) (76 FR 36329, June 22, 2011).
This action also does not address the
requirements of CAA section
110(a)(2)(E)(ii) regarding state boards.
EPA will address the requirements of
this sub-element in a separate action.
Furthermore, EPA interprets the section
110(a)(2)(J) provision on visibility as not
being triggered by a new NAAQS
because the visibility requirements in
part C are not changed by a new
NAAQS.
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IV. What is the scope of action on
infrastructure submittals?
EPA is currently acting upon SIPs that
address the infrastructure requirements
of CAA section 110(a)(1) and (2) for
ozone and PM2.5 NAAQS for various
states across the country. Commenters
on EPA’s recent proposals for some
states raised concerns about EPA
statements that it was not addressing
certain substantive issues in the context
of acting on those infrastructure SIP
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submissions.4 The commenters
specifically raised concerns involving
provisions in existing SIPs and with
EPA’s statements in other proposals that
it would address two issues separately
and not as part of actions on the
infrastructure SIP submissions: (i)
existing provisions related to excess
emissions during periods of start-up,
shutdown, or malfunction at sources,
that may be contrary to the CAA and
EPA’s policies addressing such excess
emissions (‘‘SSM’’); and (ii) existing
provisions related to ‘‘director’s
variance’’ or ‘‘director’s discretion’’ that
purport to permit revisions to SIP
approved emissions limits with limited
public process or without requiring
further approval by EPA, that may be
contrary to the CAA (‘‘director’s
discretion’’). EPA notes that there are
two other substantive issues for which
EPA likewise stated in other proposals
that it would address the issues
separately: (i) Existing provisions for
minor source new source review
programs that may be inconsistent with
the requirements of the CAA and EPA’s
regulations that pertain to such
programs (‘‘minor source NSR’’); and (ii)
existing provisions for Prevention of
Significant Deterioration programs that
may be inconsistent with current
requirements of EPA’s ‘‘Final NSR
Improvement Rule’’ (67 FR 80186, Dec.
31, 2002), as amended by 72 FR 32526
(June 13, 2007) (‘‘NSR Reform’’). In light
of the comments, EPA believes that its
statements in various proposed actions
on infrastructure SIPs with respect to
these four individual issues should be
explained in greater depth. It is
important to emphasize that EPA is
taking the same position with respect to
these four substantive issues in this
action on the infrastructure SIP for the
1997 8-hour ozone NAAQS submittal
from Idaho.
EPA intended the statements in the
other proposals concerning these four
issues merely to be informational, and
to provide general notice of the
potential existence of provisions within
the existing SIPs of some states that
might require future corrective action.
EPA did not want states, regulated
entities, or members of the public to be
under the misconception that the
Agency’s approval of the infrastructure
SIP submission of a given state should
4 See, Comments of Midwest Environmental
Defense Center, dated May 31, 2011. Docket # EPA–
R05–OAR–2007–1179 (adverse comments on
proposals for three states in Region 5). EPA notes
that these public comments on another proposal are
not relevant to this rulemaking and do not have to
be directly addressed in this rulemaking. EPA will
respond to these comments in the appropriate
rulemaking action to which they apply.
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be interpreted as a reapproval of certain
types of provisions that might exist
buried in the larger existing SIP for such
state. Thus, for example, EPA explicitly
noted that the Agency believes that
some states may have existing SIP
approved SSM provisions that are
contrary to the CAA and EPA policy,
but that ‘‘in this rulemaking, EPA is not
proposing to approve or disapprove any
existing State provisions with regard to
excess emissions during SSM of
operations at facilities.’’ EPA further
explained, for informational purposes,
that ‘‘EPA plans to address such State
regulations in the future.’’ EPA made
similar statements, for similar reasons,
with respect to the director’s discretion,
minor source NSR, and NSR Reform
issues. EPA’s objective was to make
clear that approval of an infrastructure
SIP for these ozone and PM2.5 NAAQS
should not be construed as explicit or
implicit reapproval of any existing
provisions that relate to these four
substantive issues. EPA is reiterating
that position in this action on the 1997
8-hour ozone infrastructure SIP for
Idaho.
Unfortunately, the commenters and
others evidently interpreted these
statements to mean that EPA considered
action upon the SSM provisions and the
other three substantive issues to be
integral parts of acting on an
infrastructure SIP submission, and
therefore that EPA was merely
postponing taking final action on the
issues in the context of the
infrastructure SIPs. This was not EPA’s
intention. To the contrary, EPA only
meant to convey its awareness of the
potential for certain types of
deficiencies in existing SIPs, and to
prevent any misunderstanding that it
was reapproving any such existing
provisions. EPA’s intention was to
convey its position that the statute does
not require that infrastructure SIPs
address these specific substantive issues
in existing SIPs and that these issues
may be dealt with separately, outside
the context of acting on the
infrastructure SIP submission of a state.
To be clear, EPA did not mean to imply
that it was not taking a full final agency
action on the infrastructure SIP
submission with respect to any
substantive issue that EPA considers to
be a required part of acting on such
submissions under section 110(k) or
under section 110(c). Given the
confusion evidently resulting from
EPA’s statements in those other
proposals, however, we want to explain
more fully the Agency’s reasons for
concluding that these four potential
substantive issues in existing SIPs may
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be addressed separately from actions on
infrastructure SIP submissions.
The requirement for the SIP
submissions at issue arises out of CAA
section 110(a)(1). That provision
requires that states must make a SIP
submission ‘‘within 3 years (or such
shorter period as the Administrator may
prescribe) after the promulgation of a
national primary ambient air quality
standard (or any revision thereof)’’ and
that these SIPS are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. Section
110(a)(2) includes a list of specific
elements that ‘‘[e]ach such plan’’
submission must meet. EPA has
historically referred to these particular
submissions that states must make after
the promulgation of a new or revised
NAAQS as ‘‘infrastructure SIPs.’’ This
specific term does not appear in the
statute, but EPA uses the term to
distinguish this particular type of SIP
submission designed to address basic
structural requirements of a SIP from
other types of SIP submissions designed
to address other different requirements,
such as ‘‘nonattainment SIP’’
submissions required to address the
nonattainment planning requirements of
part D, ‘‘regional haze SIP’’ submissions
required to address the visibility
protection requirements of CAA section
169A, new source review permitting
program submissions required to
address the requirements of part D, and
a host of other specific types of SIP
submissions that address other specific
matters.
Although section 110(a)(1) addresses
the timing and general requirements for
these infrastructure SIPs, and section
110(a)(2) provides more details
concerning the required contents of
these infrastructure SIPs, EPA believes
that many of the specific statutory
provisions are facially ambiguous. In
particular, the list of required elements
provided in section 110(a)(2) contains a
wide variety of disparate provisions,
some of which pertain to required legal
authority, some of which pertain to
required substantive provisions, and
some of which pertain to requirements
for both authority and substantive
provisions.5 Some of the elements of
section 110(a)(2) are relatively
straightforward, but others clearly
require interpretation by EPA through
5 For example, section 110(a)(2)(E) provides that
states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; section 110(a)(2)(C) provides
that states must have a substantive program to
address certain sources as required by part C of the
CAA; section 110(a)(2)(G) provides that states must
have both legal authority to address emergencies
and substantive contingency plans in the event of
such an emergency.
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rulemaking, or recommendations
through guidance, in order to give
specific meaning for a particular
NAAQS.6
Notwithstanding that section 110(a)(2)
provides that ‘‘each’’ SIP submission
must meet the list of requirements
therein, EPA has long noted that this
literal reading of the statute is internally
inconsistent, insofar as section
110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met
on the schedule provided for these SIP
submissions in section 110(a)(1).7 This
illustrates that EPA must determine
which provisions of section 110(a)(2)
may be applicable for a given
infrastructure SIP submission.
Similarly, EPA has previously decided
that it could take action on different
parts of the larger, general
‘‘infrastructure SIP’’ for a given NAAQS
without concurrent action on all
subsections, such as section
110(a)(2)(D)(i), because the Agency
bifurcated the action on these latter
‘‘interstate transport’’ provisions within
section 110(a)(2) and worked with states
to address each of the four prongs of
section 110(a)(2)(D)(i) with substantive
administrative actions proceeding on
different tracks with different
schedules.8 This illustrates that EPA
may conclude that subdividing the
applicable requirements of section
110(a)(2) into separate SIP actions may
sometimes be appropriate for a given
NAAQS where a specific substantive
action is necessitated, beyond a mere
submission addressing basic structural
aspects of the state’s SIP. Finally, EPA
notes that not every element of section
110(a)(2) would be relevant, or as
relevant, or relevant in the same way,
6 For example, section 110(a)(2)(D)(i) requires
EPA to be sure that each state’s SIP contains
adequate provisions to prevent significant
contribution to nonattainment of the NAAQS in
other states. This provision contains numerous
terms that require substantial rulemaking by EPA in
order to determine such basic points as what
constitutes significant contribution. See, e.g., ‘‘Rule
To Reduce Interstate Transport of Fine Particulate
Matter and Ozone (Clean Air Interstate Rule);
Revisions to Acid Rain Program; Revisions to the
NOX SIP Call; Final Rule’’ (70 FR 25162, May 12,
2005) (defining, among other things, the phrase
‘‘contribute significantly to nonattainment’’).
7 See, e.g., 70 FR 25162 (May 12, 2005)
(explaining relationship between timing
requirement of section 110(a)(2)(D) versus section
110(a)(2)(I)).
8 EPA issued separate guidance to states with
respect to SIP submissions to meet section
110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5
NAAQS. See, ‘‘Guidance for State Implementation
Plan (SIP) Submissions to Meet Current
Outstanding Obligations Under Section
110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards,’’ from
William T. Harnett, Director Air Quality Policy
Division OAQPS, to Regional Air Division Director,
Regions I–X, dated August 15, 2006.
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for each new or revised NAAQS and the
attendant infrastructure SIP submission
for that NAAQS. For example, the
monitoring requirements that might be
necessary for purposes of section
110(a)(2)(B) for one NAAQS could be
very different than what might be
necessary for a different pollutant. Thus,
the content of an infrastructure SIP
submission to meet this element from a
state might be very different for an
entirely new NAAQS, versus a minor
revision to an existing NAAQS.9
Similarly, EPA notes that other types
of SIP submissions required under the
statute also must meet the requirements
of section 110(a)(2), and this also
demonstrates the need to identify the
applicable elements for other SIP
submissions. For example,
nonattainment SIPs required by part D
likewise have to meet the relevant
subsections of section 110(a)(2) such as
section 110(a)(2)(A) or (E). By contrast,
it is clear that nonattainment SIPs
would not need to meet the portion of
section 110(a)(2)(C) that pertains to part
C, i.e., the PSD requirements applicable
in attainment areas. Nonattainment SIPs
required by part D also would not need
to address the requirements of section
110(a)(2)(G) with respect to emergency
episodes, as such requirements would
not be limited to nonattainment areas.
As this example illustrates, each type of
SIP submission may implicate some
subsections of section 110(a)(2) and not
others.
Given the potential for ambiguity of
the statutory language of section
110(a)(1) and (2), EPA believes that it is
appropriate for EPA to interpret that
language in the context of acting on the
infrastructure SIPs for a given NAAQS.
Because of the inherent ambiguity of the
list of requirements in section 110(a)(2),
EPA has adopted an approach in which
it reviews infrastructure SIPs against
this list of elements ‘‘as applicable.’’ In
other words, EPA assumes that Congress
could not have intended that each and
every SIP submission, regardless of the
purpose of the submission or the
NAAQS in question, would meet each
of the requirements, or meet each of
them in the same way. EPA elected to
use guidance to make recommendations
for infrastructure SIPs for these ozone
and PM2.5 NAAQS.
On October 2, 2007, EPA issued
guidance making recommendations for
the infrastructure SIP submissions for
both the 1997 8-hour ozone NAAQS and
9 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
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the 1997 PM2.5 NAAQS.10 Within this
guidance document, EPA described the
duty of states to make these submissions
to meet what the Agency characterized
as the ‘‘infrastructure’’ elements for
SIPs, which it further described as the
‘‘basic SIP requirements, including
emissions inventories, monitoring, and
modeling to assure attainment and
maintenance of the standards.’’ 11 As
further identification of these basic
structural SIP requirements,
‘‘attachment A’’ to the guidance
document included a short description
of the various elements of section
110(a)(2) and additional information
about the types of issues that EPA
considered germane in the context of
such infrastructure SIPs. EPA
emphasized that the description of the
basic requirements listed on attachment
A was not intended ‘‘to constitute an
interpretation of’’ the requirements, and
was merely a ‘‘brief description of the
required elements.’’ 12 EPA also stated
its belief that with one exception, these
requirements were ‘‘relatively self
explanatory, and past experience with
SIPs for other NAAQS should enable
States to meet these requirements with
assistance from EPA Regions.’’ 13 For the
one exception to that general
assumption, however, i.e., how states
should proceed with respect to the
requirements of section 110(a)(2)(G) for
the 1997 PM2.5 NAAQS, EPA gave much
more specific recommendations. But for
other infrastructure SIP submittals, and
for certain elements of the submittals for
the 1997 PM2.5 NAAQS, EPA assumed
that each State would work with its
corresponding EPA regional office to
refine the scope of a State’s submittal
based on an assessment of how the
requirements of section 110(a)(2) should
reasonably apply to the basic structure
of the State’s SIP for the NAAQS in
question.
On September 25, 2009, EPA issued
guidance to make recommendations to
states with respect to the infrastructure
10 See, ‘‘Guidance on SIP Elements Required
Under Section 110(a)(1) and (2) for the 1997 8-hour
Ozone and PM2.5 National Ambient Air Quality
Standards,’’ from William T. Harnett, Director Air
Quality Policy Division, to Air Division Directors,
Regions I–X, dated October 2, 2007 (the ‘‘2007
Guidance’’).
11 Id., at page 2.
12 Id., at attachment A, page 1.
13 Id., at page 4. In retrospect, the concerns raised
by commenters with respect to EPA’s approach to
some substantive issues indicates that the statute is
not so ‘‘self explanatory,’’ and indeed is sufficiently
ambiguous that EPA needs to interpret it in order
to explain why these substantive issues do not need
to be addressed in the context of infrastructure SIPs
and may be addressed at other times and by other
means.
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SIPs for the 2006 PM2.5 NAAQS.14 In the
2009 Guidance, EPA addressed a
number of additional issues that were
not germane to the infrastructure SIPs
for the 1997 8-hour ozone and 1997
PM2.5 NAAQS, but were germane to
these SIP submissions for the 2006
PM2.5 NAAQS, e.g., the requirements of
section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure
elements for those specific 1997 ozone
and PM2.5 NAAQS. Significantly,
neither the 2007 Guidance nor the 2009
Guidance explicitly referred to the SSM,
director’s discretion, minor source NSR,
or NSR Reform issues as among specific
substantive issues EPA expected states
to address in the context of the
infrastructure SIPs, nor did EPA give
any more specific recommendations
with respect to how states might address
such issues even if they elected to do so.
The SSM and director’s discretion
issues implicate section 110(a)(2)(A),
and the minor source NSR and NSR
Reform issues implicate section
110(a)(2)(C). In the 2007 Guidance and
the 2009 Guidance, however, EPA did
not indicate to states that it intended to
interpret these provisions as requiring a
substantive submission to address these
specific issues in existing SIP provisions
in the context of the infrastructure SIPs
for these NAAQS. Instead, EPA’s 2007
Guidance merely indicated its belief
that the states should make submissions
in which they established that they have
the basic SIP structure necessary to
implement, maintain, and enforce the
NAAQS. EPA believes that states can
establish that they have the basic SIP
structure, notwithstanding that there
may be potential deficiencies within the
existing SIP. Thus, EPA’s proposals for
other states mentioned these issues not
because the Agency considers them
issues that must be addressed in the
context of an infrastructure SIP as
required by section 110(a)(1) and (2),
but rather because EPA wanted to be
clear that it considers these potential
existing SIP problems as separate from
the pending infrastructure SIP actions.
The same holds true for this action on
the 1997 8-hour ozone infrastructure SIP
for Idaho.
EPA believes that this approach to the
infrastructure SIP requirement is
reasonable, because it would not be
feasible to read section 110(a)(1) and (2)
to require a top to bottom, stem to stern,
review of each and every provision of an
14 See, ‘‘Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 2006 24Hour Fine Particle (PM2.5) National Ambient Air
Quality Standards (NAAQS),’’ from William T,
Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I–X, dated
September 25, 2009 (the ‘‘2009 Guidance’’).
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existing SIP merely for purposes of
assuring that the state in question has
the basic structural elements for a
functioning SIP for a new or revised
NAAQS. Because SIPs have grown by
accretion over the decades as statutory
and regulatory requirements under the
CAA have evolved, they may include
some outmoded provisions and
historical artifacts that, while not fully
up to date, nevertheless may not pose a
significant problem for the purposes of
‘‘implementation, maintenance, and
enforcement’’ of a new or revised
NAAQS when EPA considers the overall
effectiveness of the SIP. To the contrary,
EPA believes that a better approach is
for EPA to determine which specific SIP
elements from section 110(a)(2) are
applicable to an infrastructure SIP for a
given NAAQS, and to focus attention on
those elements that are most likely to
need a specific SIP revision in light of
the new or revised NAAQS. Thus, for
example, EPA’s 2007 Guidance
specifically directed states to focus on
the requirements of section 110(a)(2)(G)
for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA
regulations for emergency episodes for
this NAAQS and an anticipated absence
of relevant provisions in existing SIPs.
Finally, EPA believes that its
approach is a reasonable reading of
section 110(a)(1) and (2) because the
statute provides other avenues and
mechanisms to address specific
substantive deficiencies in existing SIPs.
These other statutory tools allow the
Agency to take appropriate tailored
action, depending upon the nature and
severity of the alleged SIP deficiency.
Section 110(k)(5) authorizes EPA to
issue a ‘‘SIP call’’ whenever the Agency
determines that a state’s SIP is
substantially inadequate to attain or
maintain the NAAQS, to mitigate
interstate transport, or otherwise to
comply with the CAA.15 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.16
15 EPA has recently issued a SIP call to rectify a
specific SIP deficiency related to the SSM issue.
See, ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revision,’’ 74 FR 21,639
(April 18, 2011).
16 EPA has recently utilized this authority to
correct errors in past actions on SIP submissions
related to PSD programs. See, ‘‘Limitation of
Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule’’
(75 FR 82536, Dec. 30, 2010). EPA has previously
used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency
determined it had approved in error. See, e.g., 61
FR 38664 (July 25, 1996) and 62 FR 34641 (June 27,
1997) (corrections to American Samoa, Arizona,
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Significantly, EPA’s determination that
an action on the infrastructure SIP is not
the appropriate time and place to
address all potential existing SIP
problems does not preclude the
Agency’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action at a later time. For
example, although it may not be
appropriate to require a state to
eliminate all existing inappropriate
director’s discretion provisions in the
course of acting on the infrastructure
SIP, EPA believes that section
110(a)(2)(A) may be among the statutory
bases that the Agency cites in the course
of addressing the issue in a subsequent
action.17
V. What is EPA’s analysis of Idaho’s
submittal?
The Idaho SIP submittal cites an
overview of the Idaho air quality laws
and regulations including portions of
the Idaho Environmental Protection and
Health Act (EPHA) and the Rules of the
Control of Air Pollution in Idaho. Idaho
Department of Environmental Quality
(DEQ) annually updates and refers to
EPA for incorporation by reference of all
NAAQS and updates to 40 CFR part 51,
Appendix W—Guidelines on Air
Quality Models. The Idaho submittal
addresses the elements of section
110(a)(2) as described below. A more
detailed review and analysis of the
Idaho infrastructure SIP elements is
provided in the Technical Support
Document (TSD), which is found in the
docket for this proposed rulemaking.
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110(a)(2)(A): Emission Limits and Other
Control Measures
Section 110(a)(2)(A) requires SIPs to
include enforceable emission limits and
other control measures, means, or
techniques, as well as schedules and
timetables for compliance. EPA notes
that the specific nonattainment area
plan requirements of Section 110(a)(2)(I)
are subject to the timing requirement of
Section 172, not the timing requirement
of Section 110(a)(1).
Idaho’s submittal: The Idaho SIP
submittal cites several laws and
regulations including Idaho Code
Section 39–105(3)(d) which provides
Idaho DEQ with the broad power to
California, Hawaii, and Nevada SIPs); 69 FR 67062
(November 16, 2004) (corrections to California SIP);
and 74 FR 57051 (November 3, 2009) (corrections
to Arizona and Nevada SIPs).
17 EPA has recently disapproved a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 (July 21,
2010) (proposed disapproval of director’s discretion
provisions); 76 FR 4540 (Jan. 26, 2011) (final
disapproval of such provisions).
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supervise and administer a system to
safeguard air quality. In addition, Idaho
Code Section 39–115 provides Idaho
DEQ with specific authority for the
issuance of air quality permits and to
charge and collect permit fees. Rules
relating to air quality permits are found
at IDAPA 58.01.01.200 through 228, 300
through 399 and 400 through 410.
Estimates of ambient concentrations are
based on air quality models, databases
and other requirements specified in 40
CFR part 51, Appendix W (Guideline on
Air Quality Models). Idaho DEQ
annually updates and refers to EPA for
incorporation by reference of all
national ambient air quality standards
and updates to 40 CFR part 51,
Appendix W. IDAPA 58.01.01.401.03
provides DEQ with the authority to
require a Tier II permit if it determines
emission rate reductions are necessary
to attain or maintain any ambient air
quality standard or applicable
prevention of significant deterioration
(PSD) increments. Specific requirements
for major sources in attainment or
unclassifiable areas are listed in IDAPA
58.01.01.202, 205, and 209. Specific
requirements for major sources in
nonattainment areas are listed in
58.01.01.202, 204, and 209. Federal NSR
requirements are incorporated in both
IDAPA 58.01.01.204 and 205. Please see
the TSD in the docket for this action for
a detailed description of the abovereferenced Idaho provisions.
EPA analysis: EPA most recently
approved IDAPA 58.01.01.107, which
incorporates by reference EPA
regulations at 40 CFR part 50 for the
National Primary and Secondary
Ambient Air Quality Standards, revised
as of July 1, 2008, on November 26,
2010 (75 FR 72719). We are proposing
to concurrently approve the portion of
the June 20, 2011, SIP revision which
updates the incorporation by reference
of 40 CFR part 50, 40 CFR part 51, 40
CFR part 52, 40 CFR part 53, and 40
CFR part 58 at IDAPA 58.01.01.107.03
as of July 1, 2010. Idaho has no areas
designated nonattainment for the 1997
8-hour ozone NAAQS. Idaho regulates
emissions of ozone and its precursors
through its SIP-approved major and
minor source permitting programs.
Therefore, EPA is proposing to approve
the Idaho SIP as meeting the
requirements of section 110(a)(2)(A) for
the 1997 8-hour ozone NAAQS.
In this action, EPA is not proposing to
approve or disapprove any existing state
provisions with regard to excess
emissions during startup, shutdown, or
malfunction (SSM) of operations at a
facility. EPA believes that a number of
states may have SSM provisions that are
contrary to the CAA and existing EPA
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guidance 18 and the Agency plans to
address such state regulations in the
future. In the meantime, EPA
encourages any state having a deficient
SSM provision to take steps to correct
it as soon as possible.
In this action, EPA is not proposing to
approve or disapprove any existing state
rules with regard to director’s discretion
or variance provisions. EPA believes
that a number of states may have such
provisions that are contrary to the CAA
and existing EPA guidance (52 FR
45109), November 24, 1987, and the
Agency plans to take action in the future
to address such state regulations. In the
meantime, EPA encourages any state
having a director’s discretion or
variance provision that is contrary to the
CAA and EPA guidance to take steps to
correct the deficiency as soon as
possible.
110(a)(2)(B): Ambient Air Quality
Monitoring/Data System
Section 110(a)(2)(B) requires SIPs to
include provisions to provide for
establishment and operation of ambient
air quality monitors, collecting and
analyzing ambient air quality data, and
making these data available to EPA
upon request.
Idaho’s submittal: The Idaho SIP
submittal references IDAPA
58.01.01.107 and IDAPA
58.01.01.576.05 in response to this
requirement. These rules incorporate by
reference 40 CFR part 50 National
Primary and Secondary Air Quality
Standards, 40 CFR part 52 Approval and
Promulgation of Implementation Plans,
40 CFR part 53 Ambient Air Monitoring
Reference and Equivalent Methods, and
40 CFR part 58 Appendix B Ambient
Air Quality Surveillance Quality
Assurance Requirements for Prevention
of Significant Deterioration. These rules
give Idaho authority to implement
ambient air monitoring surveillance
systems in accordance with the
requirements of referenced sections of
the CAA.
Idaho DEQ collects and reports to
EPA ambient air quality data for PM2.5,
PM10, NOX, CO, ozone and SOX. These
data are reviewed, verified and
validated prior to being submitted to
EPA’s Air Quality System, or AQS, no
later than 90 days from the end of the
calendar quarter from which the data
was collected. On July 1 of each year,
18 Steven Herman, Assistant Administrator for
Enforcement and Compliance Assurance, and
Robert Perciasepe, Assistant Administrator for Air
and Radiation. ‘‘State Implementation Plans (SIPs):
Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown.’’
Memorandum to EPA Air Division Directors,
August 11, 1999.
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the previous year’s ambient air
monitoring data is certified by the Idaho
DEQ Air Division Administrator as
being true, accurate and complete.
EPA analysis: A comprehensive air
quality monitoring plan, intended to
meet requirements of 40 CFR part 58
was submitted by Idaho to EPA on
January 15, 1980 (40 CFR 52.670) and
approved by EPA on July 28, 1982. This
air quality monitoring plan has been
subsequently updated, with the most
recent submittal dated July 1, 2011. EPA
approved the plan on September 6,
2011. This plan includes, among other
things, the locations for the ozone
monitoring network. Idaho makes this
plan available for public review on
Idaho DEQ’s Web site at https://
www.deq.idaho.gov/air-quality/
monitoring/monitoring-network.aspx.
The Web site also includes an
interactive map of Idaho’s air
monitoring network. We are proposing
to concurrently approve the portion of
the June 20, 2011, SIP revision which
updates the incorporation by reference
of 40 CFR part 50, 40 CFR part 51, 40
CFR part 52, 40 CFR part 53, and 40
CFR part 58 at IDAPA 58.01.01.107.03
as of July 1, 2010. Based on the
foregoing, EPA proposes to approve the
Idaho SIP as meeting the requirements
of CAA section 110(a)(2)(B) for the 1997
8-hour ozone NAAQS.
110(a)(2)(C): Program for Enforcement
of Control Measures
Section 110(a)(2)(C) requires states to
include a program providing for
enforcement of all SIP measures and the
regulation of construction of new or
modified stationary sources, including a
program to meet PSD and
nonattainment NSR requirements.
Idaho’s submittal: The Idaho SIP
submittal refers to Idaho Code Section
39–108 which provides DEQ with the
authority to enforce both
administratively and civily the Idaho
Environmental Protection and Health
Act (EPHA), or any rule, permit or order
promulgated pursuant to the EPHA.
Criminal enforcement is authorized at
Idaho Code Section 39–109. Emergency
order authority, similar to that under
section 303 of the CAA, is located at
Idaho Code Section 39–112. The Idaho
submission also refers to laws and
regulations requiring stationary source
compliance with the NAAQS discussed
in their response to 110(a)(2)(A). Please
see the TSD in the docket for this action
for a detailed description of the abovereferenced Idaho provisions.
EPA analysis: To generally meet the
requirements of section 110(a)(2)(C), a
state is required to have PSD,
nonattainment NSR, and minor NSR
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permitting programs adequate to
implement the 1997 8-hour ozone
NAAQS. As explained above, in this
action EPA is not evaluating
nonattainment related provisions, such
as the nonattainment NSR program
required by part D of the CAA. In
addition, Idaho has no nonattainment
areas for the 1997 ozone NAAQS.
EPA believes Idaho code provides
DEQ with the authority to enforce the
Idaho EPHA, air quality regulations,
permits, and orders promulgated
pursuant to the EPHA. Idaho DEQ staffs
and maintains an enforcement program
to ensure compliance with SIP
requirements. Idaho DEQ may issue
emergency orders to reduce or
discontinue emission of air
contaminants where air emissions cause
or contribute to imminent and
substantial endangerment. Enforcement
cases may be referred to the state
Attorney General’s Office for civil or
criminal enforcement. EPA therefore
proposes to approve the Idaho SIP as
meeting the requirements of 110(a)(2)(C)
related to enforcement for the 1997 8hour ozone NAAQS.
EPA most recently approved revisions
to Idaho’s PSD program on November
26, 2010 (75 FR 72719). Idaho’s PSD
program includes NOx as a precursor for
ozone. However, EPA previously noted
that Idaho’s PSD program had a
deficiency because the state did not
have the authority to implement the
PSD permitting program with respect to
GHG emissions (75 FR 77698, Dec. 13,
2010). Since that time, Idaho undertook
rule revisions and submitted a SIP
revision to EPA on June 20, 2011, which
addresses this deficiency. The Idaho SIP
revision includes an update to the
state’s incorporation by reference of
federal PSD program regulations at 40
CFR part 52, including 40 CFR 52.21, as
of July 1, 2010, and adds a new
incorporation by reference of the
Tailoring Rule because it became
effective after the July 1, 2010, citation
date. These federal rules are
incorporated by reference into Idaho
rules at IDAPA 58.01.01.107.03. As a
result of EPA’s approval of the SIP
revision, Idaho’s SIP will apply to GHG
emitting sources as specified in the
amended definition of ‘‘subject to
regulation’’ in 40 CFR 52.21(b)(49).
Idaho’s SIP will also phase in PSD
program applicability to sources at the
emissions thresholds and time frames
laid out in the Tailoring Rule. In this
action EPA is proposing to approve the
portion of Idaho’s June 20, 2011, SIP
revision to apply Idaho’s PSD program
to greenhouse gas emitting sources at
the emissions thresholds and in the
same time frames as those specified in
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the Tailoring Rule. In conjunction with
this proposed approval of Idaho’s PSD
program for GHG-emitting sources, EPA
is proposing to rescind the FIP at 40
CFR 52.37 which provides for EPA to be
the PSD permitting authority for GHGemitting sources in Idaho. As a result,
EPA is proposing to approve Idaho’s SIP
as consistent with the requirements of
element 110(a)(2)(C) as it relates to PSD
for the 1997 8-hour ozone NAAQS.
In this action, EPA is not proposing to
approve or disapprove any state rules
with regard to NSR Reform
requirements for major sources. EPA
most recently approved changes to
Idaho’s NSR program, including NSR
Reform, on November 26, 2010 (75 FR
72719). In addition, EPA has
determined that Idaho’s minor NSR
program adopted pursuant to section
110(a)(2)(C) of the Act regulates
emissions of ozone and its precursors.
In this action, EPA is not proposing to
approve or disapprove the state’s
existing minor NSR program itself to the
extent that it is inconsistent with EPA’s
regulations governing this program. EPA
believes that a number of states may
have minor NSR provisions that are
contrary to the existing EPA regulations
for this program. EPA intends to work
with states to reconcile state minor NSR
programs with EPA’s regulatory
provisions for the program. The
statutory requirements of section
110(a)(2)(C) provide for considerable
flexibility in designing minor NSR
programs, and EPA believes it may be
time to revisit the regulatory
requirements for this program to give
the states an appropriate level of
flexibility to design a program that
meets their particular air quality
concerns, while assuring reasonable
consistency across the country in
protecting the NAAQS with respect to
new and modified minor sources.
Based on the foregoing, EPA is
proposing to approve the Idaho SIP as
meeting the requirements of CAA
section 110(a)(2)(C) for the 1997 8-hour
ozone NAAQS.
110(a)(2)(D): Interstate Transport
Section 110(a)(2)(D) requires SIPs to
include provisions prohibiting any
source or other type of emissions
activity in one state from contributing
significantly to nonattainment, or
interfering with maintenance of the
NAAQS in another state, or from
interfering with measures required to
prevent significant deterioration of air
quality or to protect visibility in another
state.
As noted above, this action does not
address the requirements of
110(a)(2)(D)(i) for the 8-hour ozone
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NAAQS which have been addressed by
two separate findings issued by EPA on
November 26, 2010 (75 FR 72705) and
June 22, 2011 (76 FR 36329). Section
110(a)(2)(D)(ii) requires SIPs to include
provisions insuring compliance with the
applicable requirements of sections 126
and 115 (relating to interstate and
international pollution abatement).
Specifically, section 126(a) requires new
or modified major sources to notify
neighboring states of potential impacts
from the source.
EPA analysis: EPA most recently
approved revisions to Idaho’s PSD
program on November 26, 2010 (75 FR
72719). Idaho’s PSD regulations provide
for notice consistent with the
requirements of the EPA PSD program.
Idaho issues notice of its draft permits
and neighboring states consistently
receive copies of those drafts. The state
also has no pending obligations under
section 115 or 126(b) of the Act. EPA is
proposing to approve the Idaho SIP as
meeting the requirements of CAA
Section 110(a)(2)(D)(ii) for the 1997
8-hour ozone NAAQS.
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110(a)(2)(E): Adequate Resources
Section 110(a)(2)(E) requires states to
provide (i) necessary assurances that the
state will have adequate personnel,
funding, and authority under state law
to carry out the SIP (and is not
prohibited by any provision of Federal
or state law from carrying out the SIP or
portion thereof), (ii) requires that the
state comply with the requirements
respecting state boards under CAA
Section 128 and (iii) necessary
assurances that, where the state has
relied on a local or regional government,
agency, or instrumentality for the
implementation of any SIP provision,
the state has responsibility for ensuring
adequate implementation of such SIP
provision.
Idaho’s submittal: The Idaho SIP
submittal addresses 110(a)(2)(E)(i)
regarding adequate personnel, funding
and authority and refers to specific
Idaho statute including Idaho Code
Section 39–106 which gives the Idaho
DEQ Director the authority to hire
personnel to carry out duties of the
department. In addition, Idaho Code 39–
105 lays out the powers and duties of
Idaho DEQ’s director and gives the
director the power to utilize any federal
aid and grants. Finally, Idaho Code
Section 39–107B establishes the
Department of Environmental Quality
Fund which receives appropriated
funds, transfers from the general fund,
federal grants, fees for services,
permitting fees and other program
income.
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With regard to the state boards
requirements under CAA Section 128,
Idaho indicated in its submission that
the state’s Board of Environmental
Quality, established pursuant to Idaho
Code Section 39–107, meets the
requirements of Section 128. Idaho
refers to the State’s Ethics in
Government Act of 1990 at Idaho Code
Section 59–701, et seq. which lays out
the ethics requirements for public
officials including acting in the public
interest, disclosure of conflicts of
interest, and procedures for excusing
board members where conflicts exist.
With regard to assurances that the
state has responsibility for ensuring
adequate implementation of the plan
where the state has relied on local or
regional government agencies, DEQ
addressed the agreements with locals on
nonattainment plans. On certain
nonattainment plans, DEQ has entered
into agreements for local
implementation and enforcement of
measures such as wood stove and street
sweeping ordinances. When DEQ relies
on local enforcement it also is able to
enforce the local ordinance under its
own authorities. For instance, failure to
street sweep when required may
constitute a violation of the requirement
to control fugitive dust, IDAPA
58.01.01.650–651. If a resident failed to
comply with a woodstove ordinance,
then DEQ could issue the resident a Tier
II permit and enforce the ordinance
terms then included in the permit.
Please see the TSD in the docket for this
action for a detailed description of the
above-referenced Idaho provisions.
EPA analysis: EPA is proposing to
find that the above-listed laws and
regulations provide Idaho DEQ with
adequate authority and resources to
carry out SIP obligations with respect to
the requirements of CAA section
110(a)(2)(E)(i) for the 1997 8-hour ozone
NAAQS. EPA is also proposing to find
that Idaho has provided necessary
assurances that, where the state has
relied on a local or regional government,
agency, or instrumentality for the
implementation of any SIP provision,
the state has responsibility for ensuring
adequate implementation of the SIP
with regards to the 1997 8-hour ozone
NAAQS. Therefore EPA is proposing to
approve the Idaho SIP as meeting the
requirements of CAA section
110(a)(2)(E)(i) and (E)(iii) for the 1997
8-hour ozone NAAQS. Idaho’s SIP
submission did not address all of the
requirements of CAA Section 128,
specifically the provision which
requires a SIP to specify that a board or
body which approves permits or
enforcement orders under the CAA to
have at least a majority of members who
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represent the public interest and do not
derive any significant portion of their
income from persons subject to permits
or enforcement orders under the CAA.
EPA is taking no action on CAA section
110(a)(2)(E)(ii) at this time and will
address these requirements in a separate
action.
110(a)(2)(F): Stationary Source
Monitoring System
Section 110(a)(2)(F) requires (i) the
installation, maintenance, and
replacement of equipment, and the
implementation of other necessary steps
by owners or operators of stationary
sources to monitor emissions from such
sources, (ii) periodic reports on the
nature and amounts of emissions and
emissions-related data from such
sources, and (iii) correlation of such
reports by the state agency with any
emission limitations or standards
established pursuant to the CAA, which
reports shall be available at reasonable
times for public inspection.
Idaho’s submittal: The Idaho SIP
submittal states that DEQ’s air quality
permits are practically enforceable and
contain requirements to (i) install,
maintain and replace equipment, (ii)
monitor emissions, and (iii) submit
reports. IDAPA 58.01.01.121 provides
authority to Idaho DEQ to require
monitoring, recordkeeping and periodic
reporting where sources may violate air
quality provisions, orders or rules. In
addition, the Idaho DEQ may issue
information orders including
requirements to conduct emissions
monitoring, record keeping, reporting
and other requirements. IDAPA
58.01.01.157 specifies test methods and
procedures for source testing and
reporting to the Idaho DEQ. Records are
available for public inspection under
Idaho’s Public Records Act. Please see
the TSD in the docket for this action for
a detailed description of the abovereferenced Idaho provisions.
EPA analysis: The provisions cited by
Idaho’s SIP submittal provide authority
for monitoring, recordkeeping and
reporting requirements for sources
subject to major and minor source
permitting. EPA is proposing to approve
the Idaho SIP as meeting the
requirements of CAA Section
110(a)(2)(F) for the 1997 8-hour ozone
NAAQS.
110(a)(2)(G): Emergency Episodes
Section 110(a)(2)(G) requires states to
provide for authority to address
activities causing imminent and
substantial endangerment to public
health, including contingency plans to
implement the emergency episode
provisions in their SIPs.
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Idaho’s submittal: The Idaho SIP
submittal cites Idaho Code 39–108
which provides emergency order
authority comparable to that in CAA
Section 303. In addition, the Idaho
submittal cites several Idaho regulations
that comprise Idaho’s Air Pollution
Emergency Rules (IDAPA 58.01.01.550–
562) the purpose of which is ‘‘to define
criteria for an air pollution emergency,
to formulate a plan for preventing or
alleviating such an emergency, and to
specify rules for carrying out the plan.’’
Please see the TSD in the docket for this
action for a detailed description of the
above-referenced Idaho provisions.
EPA analysis: As noted in EPA’s
October 2, 2007, guidance, the
significant harm level for the 8-hour
ozone NAAQS shall remain unchanged
at 0.60 ppm ozone, 2-hour average, as
indicated in 40 CFR 51.151. EPA
believes that the existing ozone-related
provisions of 40 CFR 51 Subpart H
remain appropriate. Idaho’s regulations
listed above, which were previously
approved by EPA on January 16, 2003
(68 FR 2217), continue to be consistent
with the requirements of 40 CFR 51.151.
Accordingly, EPA is proposing to
approve the Idaho SIP as meeting the
requirements of CAA section
110(a)(2)(G) for the 1997 8-hour ozone
NAAQS.
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110(a)(2)(H): Future SIP Revisions
Section 110(a)(2)(H) requires that SIPs
provide for revision of such plan (i)
from time to time as may be necessary
to take account of revisions of such
national primary or secondary ambient
air quality standard or the availability of
improved or more expeditious methods
of attaining such standard, and (ii),
except as provided in paragraph
110(a)(3)(C), whenever the
Administrator finds on the basis of
information available to the
Administrator that the SIP is
substantially inadequate to attain the
NAAQS which it implements or to
otherwise comply with any additional
requirements under the CAA.
Idaho’s submittal: The Idaho SIP
submittal refers to Idaho Code Section
39–105(3)(d) which provides DEQ with
the broad authority to revise rules, in
accordance with Idaho administrative
procedures for rulemaking, to meet
national ambient air quality standards
as incorporated by reference in IDAPA
58.01.01.107. Idaho also refers to
provisions cited in their submittal
related to permitting at CAA Section
110(a)(2)(A) discussed above to
demonstrate that the Idaho SIP satisfies
this requirement. Please see the TSD in
the docket for this action for a detailed
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description of the above-referenced
Idaho provisions.
EPA analysis: EPA finds that Idaho
has adequate authority to regularly
update the state SIP to take into account
revisions of the NAAQS and other
related regulatory changes. In practice,
Idaho regularly submits SIP revisions to
EPA in order to revise the SIP for recent
federal regulatory changes. EPA most
recently approved revisions to Idaho’s
SIP on November 26, 2010 (75 FR
72719). Accordingly, EPA is proposing
to approve the Idaho SIP as meeting the
requirements of section 110(a)(2)(H) for
the 1997 8-hour ozone NAAQS.
110(a)(2)(I): Nonattainment Area Plan
Revision Under Part D
There are two elements identified in
section 110(a)(2) not governed by the
3-year submission deadline of section
110(a)(1) because SIPs incorporating
necessary local nonattainment area
controls are not due within 3 years after
promulgation of a new or revised
NAAQS, but rather due at the time of
the nonattainment area plan
requirements pursuant to section 172.
These requirements are: (i) submissions
required by section 110(a)(2)(C) to the
extent that subsection refers to a permit
program as required in part D Title I of
the CAA, and (ii) submissions required
by section 110(a)(2)(I) which pertain to
the nonattainment planning
requirements of part D, Title I of the
CAA. As a result, this action does not
address infrastructure elements related
to section 110(a)(2)(C) with respect to
nonattainment NSR or section
110(a)(2)(I).
110(a)(2)(J): Consultation With
Government Officials
Section 110(a)(2)(J) requires states to
provide a process for consultation with
local governments and Federal Land
Managers carrying out NAAQS
implementation requirements pursuant
to section 121. Section 110(a)(2)(J)
further requires states to notify the
public if NAAQS are exceeded in an
area and to enhance public awareness of
measures that can be taken to prevent
exceedances. Lastly, section 110(a)(2)(J)
requires states to meet applicable
requirements of Part C related to
prevention of significant deterioration
and visibility protection.
Idaho’s submittal: The Idaho SIP
submittal cites laws and regulations
relating to public participation
processes for SIP revisions and
permitting programs. Idaho DEQ
consults with other state agencies, local
agencies, and nongovernmental
organizations, as well as with the
environmental agencies of other states
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21711
regarding air quality issues. Idaho refers
to Idaho Code Section 39–105.03(c)
which promotes outreach with local
governments and Idaho Code Section
39–129 which provides authority for
Idaho DEQ to enter into agreements
with local governments. In addition,
Idaho refers to its transportation
conformity rules, and states that Idaho
DEQ generally incorporates by reference
the federal PSD and Nonattainment new
source review programs. Please see the
TSD in the docket for this action for a
detailed description of the abovereferenced Idaho provisions.
EPA analysis: Idaho’s SIP includes
specific provisions for consulting with
local governments and Federal Land
Managers as specified in CAA section
121, including the Idaho rules for major
source PSD permitting and Tier II
operating permits. Idaho DEQ routinely
coordinates with local governments,
states, federal land managers and other
stakeholders on air quality issues and
provides notice to appropriate agencies
related to permitting actions. Idaho
regularly participates in regional
planning processes including the
Western Regional Air Partnership which
is a voluntary partnership of states,
tribes, federal land managers, local air
agencies and the US EPA whose
purpose is to understand current and
evolving regional air quality issues in
the West. Therefore, EPA is proposing to
approve the Idaho SIP as meeting the
requirements of CAA section 110(a)(2)(J)
for consultation with government
officials for the 1997 8-hour ozone
NAAQS.
Idaho actively participates and
submits information to EPA’s AIRNOW
and Enviroflash Air Quality Alert
programs. Idaho also provides the daily
air quality index to the public on their
Web site at https://www.deq.idaho.gov/
air/aqindex.cfm, as well as measures
that can be taken to prevent
exceedances. Therefore, EPA is
proposing to approve the Idaho SIP as
meeting the requirements of CAA
section 110(a)(2)(J) for public
notification for the 1997 8-hour ozone
NAAQS.
Turning to the requirement in section
110(a)(2)(J) that the SIP meet the
applicable requirements of part C of title
I of the CAA, EPA has evaluated this
requirement in the context of section
110(a)(2)(C) with respect to permitting.
EPA most recently approved revisions
to Idaho’s PSD program on November
26, 2010 (75 FR 72719). Idaho’s PSD
program regulates NOX as a precursor
for ozone. Idaho has no nonattainment
areas for the 1997 8-hour ozone
standard. EPA believes that,
conditioned upon the finalization of the
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rescission of the GHG FIP and approval
of the SIP revision pertaining to the
application of PSD permitting to the
specified GHG sources that is part of
this action, Idaho’s SIP meets the
requirements of CAA section 110(a)(2)(J)
for PSD for the 1997 8-hour ozone
NAAQS. As referenced in the analysis
for section 110(a)(2)(C), EPA previously
noted that Idaho’s PSD program had a
deficiency because the state did not
have the authority to implement the
PSD permitting program with respect to
GHG emissions (75 FR 77698, Dec. 13,
2010). Since that time, Idaho undertook
rule revisions and submitted a SIP
revision to EPA on June 20, 2011, a
portion of which addresses this
deficiency. The Idaho SIP revision
includes an update to the state’s
incorporation by reference of 40 CFR
part 52, including federal PSD program
regulations at 40 CFR 52.21 as of July 1,
2010, and adds a new incorporation by
reference of the Tailoring Rule because
it became effective after the July 1, 2010
citation date. These federal rules are
incorporated by reference into Idaho
rules at IDAPA 58.01.01.107.03. As a
result, Idaho’s SIP will apply to GHG
emitting sources as specified in the
amended definition of ‘‘subject to
regulation’’ in 40 CFR 52.21(b)(49). In
this action EPA proposes to approve the
portion of Idaho’s June 20, 2011, SIP
revision to apply Idaho’s PSD program
to GHG emitting sources at the
emissions thresholds and in the same
time frames as those specified in the
Tailoring Rule. In conjunction with this
proposed approval of Idaho’s PSD
program for GHG-emitting sources, EPA
is proposing to rescind the FIP at 40
CFR 52.37 which provides for EPA to be
the PSD permitting authority for GHGemitting sources in Idaho. As a result,
EPA is proposing to approve the Idaho
SIP as meeting the requirements of
section 110(a)(2)(J) with regard to PSD
for the 1997 8-hour ozone NAAQS.
With regard to the applicable
requirements for visibility protection,
EPA recognizes that states are subject to
visibility and regional haze program
requirements under part C of the CAA.
In the event of the establishment of a
new NAAQS, however, the visibility
and regional haze program requirements
under part C do not change. Thus we
find that there is no new visibility
obligation triggered under section
110(a)(2)(J) when a new NAAQS
becomes effective.
Based on the above, EPA is proposing
to approve the Idaho SIP as meeting the
requirements of section 110(a)(2)(J) for
the 1997 8-hour ozone NAAQS.
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110(a)(2)(K): Air Quality and Modeling/
Data
Section 110(a)(2)(K) requires that SIPs
provide for (i) the performance of such
air quality modeling as the
Administrator may prescribe for the
purpose of predicting the effect on
ambient air quality of any emissions of
any air pollutant for which the
Administrator has established a national
ambient air quality standard, and (ii) the
submission, upon request, of data
related to such air quality modeling to
the Administrator.
Idaho’s submittal: Air quality
modeling is conducted during
development of revisions to the SIP, as
appropriate for the state to demonstrate
attainment with required air quality
standards. Modeling is also addressed in
Idaho’s source permitting process as
discussed at Section 110(a)(2)(A) above.
Estimates of ambient concentrations are
based on air quality models, data bases
and other requirements specified in 40
CFR 51, Appendix W (Guidelines on Air
Quality Models) which is incorporated
by reference under IDAPA
58.01.01.107.03. Please see the TSD in
the docket for this action for a detailed
description of the above-referenced
Idaho provisions.
EPA analysis: EPA previously
approved Idaho regulations on air
quality modeling into the SIP. EPA most
recently approved IDAPA 58.01.01.107,
which incorporates by reference EPA
regulations at 40 CFR part 51, Appendix
W (Guidelines on Air Quality Models)
revised as of July 1, 2008, on November
26, 2010 (75 FR 72719).
We are proposing to concurrently
approve the portion of the June 20,
2011, SIP revision which updates the
incorporation by reference of 40 CFR
part 50, 40 CFR part 51, 40 CFR part 52,
40 CFR part 53, and 40 CFR part 58 at
IDAPA 58.01.01.107.03 as of July 1,
2010, as previously discussed above.
While Idaho has no nonattainment areas
for ozone, Idaho has submitted
modeling data to EPA related to other
pollutants. For example, Idaho
submitted to EPA the PM10 Maintenance
Plan for Ada County/Boise Idaho Area
which was supported by air quality
modeling data. The maintenance plan
was approved by EPA as a SIP revision
on October 27, 2003 (68 FR 61106). EPA
is proposing to approve the Idaho SIP as
meeting the requirements of CAA
Section 110(a)(2)(K) for the 1997 8-hour
ozone NAAQS.
110(a)(2)(L): Permitting Fees
Section 110(a)(2)(L) requires SIPs to
require each major stationary source to
pay permitting fees to cover the cost of
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reviewing, approving, implementing
and enforcing a permit, until such time
as the SIP fee requirement is superseded
by EPA’s approval of the state’s title V
operating permit program.
Idaho’s submittal: The Idaho SIP
submittal states that CAA section
110(a)(2)(L) requires owners and
operators of major stationary sources to
pay to the permitting authority fees to
cover the costs of review,
implementation and enforcement until a
fee requirement is superseded with
respect to such sources by the
Administrator’s approval of a fee
program under title V. EPA approved
Idaho’s title V permitting program on
October 4, 2001 (66 FR 50574) with an
effective date of November 5, 2001. EPA
regularly reviews DEQ’s title V fee
program to determine if the fee structure
is adequate to pay for the program and
assure the funding is only going toward
title V implementation.
EPA analysis: EPA approved Idaho’s
title V permitting program on October 4,
2001 (66 FR 50574) with an effective
date of November 5, 2001. While Idaho’s
operating permit program is not
formally approved into the state’s SIP, it
is a legal mechanism the state can use
to ensure that Idaho DEQ has sufficient
resources to support the air program,
consistent with the requirements of the
SIP. Before EPA can grant full approval,
a state must demonstrate the ability to
collect adequate fees. Idaho’s title V
permitting program included a
demonstration that the state will collect
a fee from title V sources above the
presumptive minimum in accordance
with 40 CFR 70.9(b)(2)(i). Idaho collects
sufficient fees to administer the title V
permit program. Therefore, EPA is
proposing to conclude that Idaho has
satisfied the requirements of CAA
Section 110(a)(2)(L) for the 1997 8-hour
ozone NAAQS.
110(a)(2)(M): Consultation and
Participation by Affected Local Entities
Section 110(a)(2)(M) requires states to
provide for consultation and
participation in SIP development by
local political subdivisions affected by
the SIP.
Idaho’s submittal: Consultation with a
variety of different state and local
organizations is a regular part of Idaho
DEQ’s process of developing SIP
revisions. The requirements for plan
preparation and public process include
40 CFR part 51, incorporated by
reference under IDAPA
58.01.01.107.03.a. Idaho also referenced
rules cited under 110(a)(2)(J) above.
Please see the TSD in the docket for this
action for a detailed description of the
above-referenced Idaho provisions.
E:\FR\FM\11APP1.SGM
11APP1
Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Proposed Rules
EPA analysis: EPA most recently
approved IDAPA 58.01.01.107, which
incorporates by reference EPA
regulations at 40 CFR part 51—
Requirements for Preparation,
Adoption, and Submittal of
Implementation Plans—on November
26, 2010 (75 FR 72719). As previously
discussed above, we are proposing to
approve portions of the June 20, 2011,
SIP revision which update the
incorporation by reference of 40 CFR
part 51 as of July 1, 2010, among other
federal regulations. EPA most recently
approved Idaho permitting rules at
IDAPA 58.01.01.209 and 58.01.01.404
which provide opportunity and
procedures for public comment and
notice to appropriate federal, state and
local agencies on January 16, 2003 (68
FR 2217). EPA is proposing to approve
Idaho’s SIP as meeting the requirements
of CAA Section 110(a)(2)(M) for the
1997 8-hour ozone NAAQS.
wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
VI. Scope of Proposed Action
Idaho has not demonstrated authority
to implement and enforce IDAPA
Chapter 58 within ’’Indian Country’’ as
defined in 18 U.S.C. 1151.19 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 (December 6, 1996) (interim
approval does not extend to Indian
19 ’’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.
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15:20 Apr 10, 2012
Jkt 226001
Country); 66 FR 50574 (October 4, 2001)
(full approval does not extend to Indian
Country).
VII. Proposed Action
EPA is proposing to approve the SIP
submittal from the State of Idaho
demonstrating that the Idaho SIP meets
the requirements of section 110(a)(1)
and (2) of the CAA for the NAAQS
promulgated for ozone on July 18, 1997.
EPA is proposing to approve in full the
following section 110(a)(2)
infrastructure elements for Idaho for the
1997 ozone NAAQS: (A), (B), (C), (D)(ii),
(E)(i), (E)(iii), (F), (G), (H), (J), (K), (L),
(M). EPA is taking no action on CAA
section 110(A)(2)(E)(ii) at this time. EPA
will address the requirements of this
sub-element in a separate action. EPA is
also proposing to approve a portion of
Idaho’s June 20, 2011, SIP submittal that
applies Idaho’s PSD Program to GHGemitting sources at the emissions
thresholds and in the same time frames
as those specified in the Tailoring Rule.
In conjunction with this proposed
approval of Idaho’s PSD program for
GHG-emitting sources, EPA is proposing
to rescind the FIP at 40 CFR 52.37
which provides for EPA to be the PSD
permitting authority for GHG-emitting
sources in Idaho.
EPA is also proposing to approve
portions of Idaho’s June 20, 2011,
annual IBR SIP update to revise the
incorporation by reference of federal
regulations revised as of July 1, 2010, in
order to ensure Idaho’s SIP is up to date
with changes to federal regulations. EPA
is not acting on the portions of the SIP
revision that are not related to the
criteria pollutants regulated under title
I of the Act or the requirements for SIPs
under section 110 of the Act. Finally,
EPA is proposing to approve the
removal of language from the Idaho SIP
that has become unnecessary due to
Idaho’s incorporation by reference of the
federal NAAQS and the federal PSD
regulations. Specifically, EPA is
proposing to approve the removal of the
subsections of IDAPA 58.01.01.577
‘‘Ambient Air Quality Standards for
Specific Pollutants’’ that relate to
pollutants for which EPA has
promulgated a NAAQS, and which are
now unnecessary because Idaho has
incorporated the federal NAAQS by
reference into the state SIP. EPA is also
proposing to approve the changes to
Idaho’s PSD regulations at IDAPA
58.01.01.581.01 to remove the
increments table in its entirety, and to
instead reference the federal PSD
increment requirements contained in 40
CFR 52.21(c), which are incorporated by
reference in the Idaho SIP. This action
PO 00000
Frm 00030
Fmt 4702
Sfmt 4702
21713
is being taken under section 110 and
part C of the CAA.
VIII. Statutory and Executive Order
Reviews
Under the CAA, 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 CAA. Accordingly, this proposed
action merely approves the state’s law
as meeting Federal requirements and
does not impose additional
requirements beyond those imposed by
the state’s law. For that reason, this
proposed 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 CAA; 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 Idaho, and EPA notes that it
E:\FR\FM\11APP1.SGM
11APP1
21714
Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Proposed Rules
will not impose substantial direct costs
on tribal governments or preempt tribal
law.
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.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 27, 2012.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2012–8706 Filed 4–10–12; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Parts 172, 173, and 175
[Docket No. PHMSA–2009–0095 (HM–224F)]
RIN 2137–AE44
Hazardous Materials: Transportation of
Lithium Batteries
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Notice of proposed rulemaking;
request for additional comment.
AGENCY:
In this document, PHMSA is
seeking comment on the impact of
changes to the requirements for the air
transport of lithium cells and batteries
that have been adopted into the 2013–
2014 International Civil Aviation
Organization Technical Instructions on
the Transport of Dangerous Goods by
Air (ICAO Technical Instructions).
PHMSA is considering whether to
harmonize with these requirements and
is publishing this notice to allow
interested persons an opportunity to
supplement comments to our January
11, 2010, Notice of Proposed
Rulemaking (NPRM).
DATES: Comments Due Date: May 11,
2012.
wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
SUMMARY:
You may submit comments
by identification of the docket number
(PHMSA–2009–0095) by any of the
following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
• Fax: 1–202–493–2251.
ADDRESSES:
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15:20 Apr 10, 2012
Jkt 226001
• Mail: Docket Operations, U.S.
Department of Transportation, West
Building, Ground Floor, Room W12–
140, Routing Symbol M–30, 1200 New
Jersey Avenue SE., Washington, DC
20590.
• Hand Delivery: To Docket
Operations, Room W12–140 on the
ground floor of the West Building, 1200
New Jersey Avenue SE., Washington,
DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal
holidays.
Instructions: All submissions must
include the agency name and docket
number for this notice at the beginning
of the comment. To avoid duplication,
please use only one of these four
methods. All comments received will be
posted without change to the Federal
Docket Management System (FDMS),
including any personal information.
Docket: For access to the dockets to
read background documents or
comments received, go to https://www.
regulations.gov or DOT’s Docket
Operations Office (see ADDRESSES).
Privacy Act: Anyone is able to search
the electronic form of any written
communications and comments
received into any of our dockets by the
name of the individual submitting the
document (or signing the document, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (Volume
65, Number 70; Pages 19477–78).
Asking for Confidential Treatment: If
you want PHMSA to give your comment
confidential treatment, you must file it
in paper form and take the following
steps in accordance with 49 CFR 105.30:
(1) Mark ‘‘confidential’’ on each page
of the original document you would like
to keep confidential.
(2) Send us, along with the original
document, a second copy of the original
document with the confidential
information deleted.
(3) Explain why the information you
are submitting is confidential (for
example, it is exempt from mandatory
public disclosure under the Freedom of
Information Act, 5 U.S.C. 552 or it is
information referred to in 18 U.S.C.
1905).
PHMSA will decide whether or not to
treat your information as confidential.
We will notify you, in writing, of a
decision to grant or deny confidentiality
at least five days before the information
is publicly disclosed, and give you an
opportunity to respond.
FOR FURTHER INFORMATION CONTACT:
Kevin A. Leary, Standards and
Rulemaking Division, Pipeline and
PO 00000
Frm 00031
Fmt 4702
Sfmt 4702
Hazardous Materials Safety
Administration, telephone (202) 366–
8553, or Michael Locke, Program
Development Division, Pipeline and
Hazardous Materials Safety
Administration, telephone (202) 366–
1074.
Background
On January 11, 2010 (75 FR 1302),
PHMSA, in coordination with the
Federal Aviation Administration (FAA),
published a Notice of Proposed
Rulemaking (NPRM) to address the air
transportation risks posed by lithium
cells and batteries. Some of the
proposals in the NPRM were intended
to harmonize provisions in the
Hazardous Materials Regulations (HMR;
49 CFR parts 171–180) with provisions
in the ICAO Technical Instructions;
other proposals in the NPRM were
intended to address safety concerns
arising from research findings from the
FAA Technical Center suggesting that
current aircraft systems and procedures
may not be sufficient to combat a fire
involving lithium batteries (from either
an external cargo fire or internal source
from manufacturing defects).1 The FAA
Technical Center issued an additional
report in 2010 that supplements the
previous studies. All of these reports are
available in the public docket of this
rulemaking. Many of the commenters to
the NPRM urged PHMSA to adopt
lithium battery transport safety
standards identical to those in the 2011–
2012 edition of the ICAO Technical
Instructions.
Since PHMSA published the NPRM,
the ICAO Dangerous Goods Panel has
met several times and devoted
considerable discussion to the
provisions applicable to the air
transport of lithium cells and batteries.
As a result, there have been many
changes in the ICAO standards
applicable to the air transport of lithium
cells and batteries. Given the increased
efficiency and clarity in having a
uniform global standard, PHMSA
considers harmonization with
international standards when there is no
adverse impact to safety. Therefore,
consistent with 49 U.S.C. 5120, PHMSA
is now considering harmonizing the
HMR with lithium battery provisions
recently adopted by ICAO and which
will become effective on January 1,
2013.
1 Flammability Assessment of Bulk-Packed, Non
rechargeable Lithium Primary Batteries in Transport
Category Aircraft; June 2004 (DOT/FAA/AR–04/26);
and Flammability Assessment of Bulk-Packed,
Rechargeable Lithium-Ion Cells in Transport
Category Aircraft; April 2006 (DOT/FAA/AR–06/
38).
E:\FR\FM\11APP1.SGM
11APP1
]]>Agencies
[Federal Register Volume 77, Number 70 (Wednesday, April 11, 2012)]
[Proposed Rules]
[Pages 21702-21714]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8706]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2010-0724, FRL-9657-3]
Approval and Promulgation of Implementation Plans; Idaho:
Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient
Air Quality Standard; Prevention of Significant Deterioration
Greenhouse Gas Permitting Authority and Tailoring Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve the State Implementation Plan
(SIP) submittals from the State of Idaho demonstrating that the Idaho
SIP meets the requirements of section 110(a)(1) and (2) of the Clean
Air Act (CAA) for the National Ambient Air Quality Standard (NAAQS)
promulgated for ozone on July 18, 1997. EPA is proposing to find that
the current Idaho SIP meets the following 110(a)(2) infrastructure
elements for the 1997 8-hour ozone NAAQS: (A), (B), (C), (D)(ii),
(E)(i), (E)(iii), (F), (G), (H), (J), (K), (L), and (M). EPA is taking
no action on CAA section 110(a)(2)(E)(ii) at this time. We will address
the requirements of this sub-element in a separate action. EPA is also
proposing to approve a SIP revision that applies Idaho's Prevention of
Significant Deterioration (PSD) Program to greenhouse gas (GHG)
emitting sources above certain thresholds, updates Idaho's SIP to
incorporate by reference revised versions of specific federal
regulations, and removes unnecessary language from the SIP due to the
incorporation by reference of the federal NAAQS and PSD regulations. In
addition, EPA is proposing to rescind the Federal Implementation Plan
(FIP) put in place to ensure the availability of a permitting authority
for greenhouse gas emitting sources in Idaho.
DATES: Comments must be received on or before May 11, 2012.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2010-0724, by any of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
Email: R10-Public_Comments@epa.gov.
Mail: Kristin Hall, EPA Region 10, Office of Air, Waste
and Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle, WA 98101.
Hand Delivery/Courier: EPA Region 10, 1200 Sixth Avenue,
Suite 900, Seattle, WA 98101. Attention: Kristin Hall, Office of Air,
Waste and Toxics, AWT-107. Such deliveries are only accepted during
normal hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-
2010-0724. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless
[[Page 21703]]
you provide it in the body of your comment. If you send an email
comment directly to EPA without going through www.regulations.gov your
email address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy during normal business hours at the Office of Air, Waste
and Toxics, EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101.
FOR FURTHER INFORMATION CONTACT: Kristin Hall at telephone number:
(206) 553-6357, email address: hall.kristin@epa.gov, or the EPA Region
10 address located in the ADDRESSES section.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'',
``us'' or ``our'' are used, we mean EPA. Information is organized as
follows:
Table of Contents
I. What action is EPA proposing?
II. What is the background for the action that EPA is proposing?
a. Section 110(a)(1) and (2)
b. Greenhouse Gas (GHG) Component of PSD Programs
c. Annual Incorporation by Reference (IBR) of Federal
Regulations
III. What infrastructure elements are required under sections
110(a)(1) and (2)?
IV. What is the scope of action on infrastructure submittals?
V. What is EPA's analysis of Idaho's submittal?
VI. Scope of Proposed Action
VII. Proposed Action
VIII. Statutory and Executive Order Reviews
I. What action is EPA proposing?
EPA is proposing to approve the State Implementation Plan (SIP)
submittals from the State of Idaho demonstrating that the SIP meets the
requirements of section 110(a)(1) and (2) of the Clean Air Act (CAA)
for the National Ambient Air Quality Standard (NAAQS) promulgated for
ozone on July 18, 1997. Section 110(a)(1) of the CAA requires that each
state, after a new or revised NAAQS is promulgated, review their SIPs
to ensure that they meet the requirements of the ``infrastructure''
elements of section 110(a)(2). The Idaho Department of Environmental
Quality (DEQ) submitted a certification to EPA on September 15, 2008,
certifying that Idaho's SIP meets the infrastructure obligations for
the 1997 8-hour ozone and 1997 PM2.5 NAAQS. The
certification included an analysis of Idaho's SIP as it relates to each
section of the infrastructure requirements with regard to the 1997 8-
hour ozone and 1997 PM2.5 NAAQS. Subsequently, on June 24,
2010, Idaho submitted an updated certification to EPA for CAA sections
110(a)(2)(D) and 110(a)(2)(G) for multiple NAAQS, including the 1997 8-
hour ozone NAAQS. EPA is proposing to find that the Idaho SIP meets the
following 110(a)(2) infrastructure elements for the 1997 8-hour ozone
NAAQS: (A), (B), (C), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J),
(K), (L), and (M). This action does not address infrastructure
requirements with respect to the 1997 PM2.5 NAAQS which EPA
intends to act on at a later time.
EPA is also proposing to approve portions of a SIP revision
submitted by Idaho DEQ on June 20, 2011. This SIP revision includes
updates to the incorporation by reference of certain federal
regulations, changes to Idaho's rules on the sulfur content of fuels,
and revisions to sections of the Idaho SIP that have become unnecessary
due to the incorporation by reference of federal NAAQS and PSD
regulations. In this action, EPA is proposing to approve a portion of
the June 20, 2011, SIP revision that applies Idaho's Prevention of
Significant Deterioration (PSD) Program to greenhouse gas (GHG)
emitting sources at the emissions thresholds and in the same time
frames as those specified in the PSD and Title V GHG Tailoring Final
Rule (Tailoring Rule) (75 FR 31514, June 3, 2010). This proposed
revision addresses the flaws discussed in EPA's SIP call to states
which found that several state SIPs, including Idaho's, did not apply
PSD to GHG-emitting sources.\1\ EPA subsequently issued a FIP which
included Idaho.\2\ Upon final approval of this GHG-related PSD program
revision, EPA is proposing to rescind the FIP at 40 CFR 52.37 which
provides for EPA to be the PSD permitting authority for GHG-emitting
sources in Idaho.
---------------------------------------------------------------------------
\1\ Action to Ensure Authority to Issue Permits Under the PSD
Program to Sources of GHG Emissions: Finding of Substantial
Inadequacy and SIP Call (75 FR 77698, Dec. 13, 2010).
\2\ Action to Ensure Authority to Issue Permits under the PSD
Program to Sources of GHG Emissions: Federal Implementation Plan (75
FR 82246, Dec. 30, 2010).
---------------------------------------------------------------------------
EPA is also proposing to approve the portion of the June 20, 2011,
revision that updates the incorporation by reference of the following
regulations revised as of July 1, 2010: Requirements for Preparation,
Adoption, and Submittal of Implementation Plans, 40 CFR part 51;
National Primary and Secondary Ambient Air Quality Standards, 40 CFR
part 50; Approval and Promulgation of Implementation Plans, 40 CFR part
52; Ambient Air Monitoring Reference and Equivalent Methods, 40 CFR
part 53; and Ambient Air Quality Surveillance, 40 CFR part 58. EPA is
also proposing to approve the addition of the incorporation by
reference of the final rule for the Primary National Air Quality
Standards for Sulfur Dioxide (75 FR 35520, June 22, 2010). EPA is not
acting on the portions of the June 20, 2011, SIP revision that are not
related to the criteria pollutants regulated under title I of the CAA
or the requirements for SIPs under section 110 of the Act. Finally, EPA
is proposing to approve the portions of the June 20, 2011, revision
that remove language from the Idaho SIP that has become unnecessary due
to Idaho's incorporation by reference of the federal NAAQS at 40 CFR
part 50 and the federal PSD regulations at 40 CFR 52.21. Specifically,
EPA is proposing to approve the removal of the subsections of IDAPA
58.01.01.577 ``Ambient Air Quality Standards for Specific Pollutants''
that relate to pollutants for which EPA has promulgated a NAAQS, and
which are now unnecessary because Idaho has incorporated the federal
NAAQS by reference into the state SIP at IDAPA 58.01.01.107. EPA is
also proposing to approve the changes to Idaho's PSD regulations at
IDAPA 58.01.01.581.01 to remove the increments table in its entirety,
and to instead reference the federal PSD increment requirements
contained in 40 CFR 52.21(c), which are incorporated by reference in
the Idaho SIP at IDAPA 58.01.01.107. EPA is not acting on the revision
to IDAPA 58.01.01.008 because
[[Page 21704]]
it is related to Idaho's Tier I Operating Permit Program required under
title V of the CAA and is not part of the SIP. In addition, EPA is not
acting on the revision to IDAPA 58.01.01.751 because it is related to a
non-criteria pollutant and is not part of the SIP. The proposed
revisions to Idaho's rules for the sulfur content of fuels are not
being acted on at this time. EPA intends to address the remainder of
the June 20, 2011, SIP revision in a subsequent rulemaking.
II. What is the background for the action that EPA is proposing?
a. Section 110(a)(1) and (2)
On July 18, 1997, EPA promulgated a new NAAQS for ozone. EPA
revised the ozone NAAQS to provide an 8-hour averaging period which
replaced the previous 1-hour averaging period, and the level of the
NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR
38856).
The CAA requires SIPs meeting the requirements of sections
110(a)(1) and (2) be submitted by states within 3 years after
promulgation of a new or revised standard. Sections 110(a)(1) and (2)
require states to address basic SIP requirements, including emissions
inventories, monitoring, and modeling to assure attainment and
maintenance of the standards, so-called ''infrastructure''
requirements. States were required to submit such SIPs for the 1997 8-
hour ozone NAAQS to EPA no later than June 2000. However, intervening
litigation over the 1997 8-hour ozone standard created uncertainty
about how to proceed, and many states did not provide the required
infrastructure SIP submissions for the newly promulgated standard.
To help states meet this statutory requirement for the 1997 ozone
NAAQS, EPA issued guidance to address infrastructure SIP elements under
section 110(a)(1) and (2).\3\ This guidance provides that to the extent
an existing SIP already meets the section 110(a)(2) requirements,
states need only to certify that fact via a letter to EPA. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's federally-approved SIP
already contains. In the case of the 1997 8-hour ozone NAAQS, states
typically have met the basic program elements required in section
110(a)(2) through earlier SIP submissions in connection with previous
ozone standards.
---------------------------------------------------------------------------
\3\ William T. Harnett, Director, Air Quality Policy Division,
Office of Air Quality Planning and Standards. ``Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-
hour Ozone and PM2.5 National Ambient Air Quality
Standards.'' Memorandum to EPA Air Division Directors, Regions I-X,
October 2, 2007.
---------------------------------------------------------------------------
b. Greenhouse Gas (GHG) Component of PSD Programs
This section briefly summarizes EPA's recent GHG-related actions
that provide the background for this action. Please see the preambles
for these GHG-related actions for more background.
EPA has recently undertaken a series of actions pertaining to the
regulation of GHGs that, although for the most part are distinct from
one another, establish the overall framework for the proposed action on
the Idaho SIP. Four of these actions include, as they are commonly
called, the ``Endangerment Finding'' and ``Cause or Contribute
Finding,'' which EPA issued in a single final action (74 FR 66496, Dec.
15, 2009), the ``Johnson Memo Reconsideration'' (75 FR 17004, Apr. 2,
2010), the ``Light-Duty Vehicle Rule'' (75 FR 25324, May 7, 2010), and
the ``Tailoring Rule'' (75 FR 31514, June 3, 2010). Taken together and
in conjunction with the CAA, these actions established regulatory
requirements for GHGs emitted from new motor vehicles and new motor
vehicle engines; determined that such regulations, when they took
effect on January 2, 2011, subjected GHGs emitted from stationary
sources to PSD requirements; and limited the applicability of PSD
requirements to GHG sources on a phased-in basis. EPA took this last
action in the Tailoring Rule, which more specifically, established
appropriate GHG emission thresholds for determining the applicability
of PSD requirements to GHG-emitting sources.
c. Annual Incorporation by Reference (IBR) of Federal Regulations
Idaho incorporates by reference various portions of Federal
regulations codified in the Code of Federal Regulations (CFR). However,
when a Federal regulation originally incorporated by reference into the
Idaho SIP at IDAPA 58.01.01 on a specific date is subsequently changed,
IDAPA 58.01.01 becomes out of date, and in some cases, inconsistent
with the revised version of the Federal regulation. To avoid potential
inconsistencies and keep IDAPA 58.01.01 up to date with changes in
Federal regulations, Idaho submits a revision to its SIP on an annual
basis, updating the IBR citations in IDAPA 58.01.01 so they reflect any
changes made to the Federal regulations during that year. Idaho's
current SIP includes the approved incorporation by reference of
specific federal regulations revised as of July 1, 2008. In Idaho's
June 20, 2011, SIP revision, the state has included the 2009 and 2010
annual IBR updates. The updates for the 2009 annual IBR update are
superseded by the 2010 annual IBR update which revises the citation
dates for specific federal regulations as of July 1, 2010.
III. What infrastructure elements are required under sections 110(a)(1)
and (2)?
Section 110(a)(1) provides the procedural and timing requirements
for SIP submissions after a new or revised NAAQS is promulgated.
Section 110(a)(2) lists specific elements that states must meet for
``infrastructure'' SIP requirements related to a newly established or
revised NAAQS. These requirements include SIP infrastructure elements
such as modeling, monitoring, and emissions inventories that are
designed to assure attainment and maintenance of the NAAQS. The
requirements, with their corresponding CAA subsection, are listed
below:
110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control measures.
110(a)(2)(D): Interstate transport.
110(a)(2)(E): Adequate resources.
110(a)(2)(F): Stationary source monitoring system.
110(a)(2)(G): Emergency power.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.
110(a)(2)(J): Consultation with government officials;
public notification; and Prevention of Significant Deterioration (PSD)
and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
EPA's October 2, 2007, guidance clarified that two elements
identified in section 110(a)(2) are not governed by the 3 year
submission deadline of section 110(a)(1) because SIPs incorporating
necessary local nonattainment area controls are not due within 3 years
after promulgation of a new or revised NAAQS, but rather are due at the
time the nonattainment area plan
[[Page 21705]]
requirements are due pursuant to CAA section 172. These requirements
are: (i) Submissions required by section 110(a)(2)(C) to the extent
that subsection refers to a permit program as required in part D Title
I of the CAA, and (ii) submissions required by section 110(a)(2)(I)
which pertain to the nonattainment planning requirements of part D,
Title I of the CAA. As a result, this action does not address
infrastructure elements related to section 110(a)(2)(C) with respect to
nonattainment new source review (NSR) or 110(a)(2)(I).
This action also does not address the requirements of
110(a)(2)(D(i) for the 1997 8-hour ozone NAAQS which have been
addressed by two separate actions issued by EPA. On November 26, 2010,
EPA approved the SIP submittal from the Idaho Department of
Environmental Quality to address provisions of CAA section
110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS (75 FR 72705). The
provisions approved in this action included three prongs of
110(a)(2)(D)(i): significant contribution to nonattainment of these
NAAQS in any other state (prong 1); interference with maintenance of
these NAAQS by any other state (prong 2); and interference with any
other state's required measures to prevent significant deterioration
(PSD) of its air quality with respect to these NAAQS (prong 3).
Subsequently, on June 22, 2011, EPA approved portions of a SIP revision
submitted by Idaho as meeting the requirements of the fourth prong of
CAA section 110(a)(2)(D)(i) as it applies to visibility for the 1997 8-
hour ozone NAAQS (prong 4) (76 FR 36329, June 22, 2011).
This action also does not address the requirements of CAA section
110(a)(2)(E)(ii) regarding state boards. EPA will address the
requirements of this sub-element in a separate action. Furthermore, EPA
interprets the section 110(a)(2)(J) provision on visibility as not
being triggered by a new NAAQS because the visibility requirements in
part C are not changed by a new NAAQS.
IV. What is the scope of action on infrastructure submittals?
EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across the country.
Commenters on EPA's recent proposals for some states raised concerns
about EPA statements that it was not addressing certain substantive
issues in the context of acting on those infrastructure SIP
submissions.\4\ The commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements in other
proposals that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction at sources, that may be contrary to the CAA
and EPA's policies addressing such excess emissions (``SSM''); and (ii)
existing provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (``director's
discretion''). EPA notes that there are two other substantive issues
for which EPA likewise stated in other proposals that it would address
the issues separately: (i) Existing provisions for minor source new
source review programs that may be inconsistent with the requirements
of the CAA and EPA's regulations that pertain to such programs (``minor
source NSR''); and (ii) existing provisions for Prevention of
Significant Deterioration programs that may be inconsistent with
current requirements of EPA's ``Final NSR Improvement Rule'' (67 FR
80186, Dec. 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR
Reform''). In light of the comments, EPA believes that its statements
in various proposed actions on infrastructure SIPs with respect to
these four individual issues should be explained in greater depth. It
is important to emphasize that EPA is taking the same position with
respect to these four substantive issues in this action on the
infrastructure SIP for the 1997 8-hour ozone NAAQS submittal from
Idaho.
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\4\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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EPA intended the statements in the other proposals concerning these
four issues merely to be informational, and to provide general notice
of the potential existence of provisions within the existing SIPs of
some states that might require future corrective action. EPA did not
want states, regulated entities, or members of the public to be under
the misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a reapproval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing State provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
reapproval of any existing provisions that relate to these four
substantive issues. EPA is reiterating that position in this action on
the 1997 8-hour ozone infrastructure SIP for Idaho.
Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issues in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements in those other proposals, however, we want to explain
more fully the Agency's reasons for concluding that these four
potential substantive issues in existing SIPs may
[[Page 21706]]
be addressed separately from actions on infrastructure SIP submissions.
The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)'' and
that these SIPS are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, new source review
permitting program submissions required to address the requirements of
part D, and a host of other specific types of SIP submissions that
address other specific matters.
Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\5\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\6\
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\5\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
\6\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's SIP contains adequate provisions to prevent
significant contribution to nonattainment of the NAAQS in other
states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See, e.g.,
``Rule To Reduce Interstate Transport of Fine Particulate Matter and
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule'' (70 FR 25162,
May 12, 2005) (defining, among other things, the phrase ``contribute
significantly to nonattainment'').
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Notwithstanding that section 110(a)(2) provides that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\7\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\8\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the state's SIP.
Finally, EPA notes that not every element of section 110(a)(2) would be
relevant, or as relevant, or relevant in the same way, for each new or
revised NAAQS and the attendant infrastructure SIP submission for that
NAAQS. For example, the monitoring requirements that might be necessary
for purposes of section 110(a)(2)(B) for one NAAQS could be very
different than what might be necessary for a different pollutant. Thus,
the content of an infrastructure SIP submission to meet this element
from a state might be very different for an entirely new NAAQS, versus
a minor revision to an existing NAAQS.\9\
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\7\ See, e.g., 70 FR 25162 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\8\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See, ``Guidance for State
Implementation Plan (SIP) Submissions to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' from
William T. Harnett, Director Air Quality Policy Division OAQPS, to
Regional Air Division Director, Regions I-X, dated August 15, 2006.
\9\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these ozone and PM2.5 NAAQS.
On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and
[[Page 21707]]
the 1997 PM2.5 NAAQS.\10\ Within this guidance document, EPA
described the duty of states to make these submissions to meet what the
Agency characterized as the ``infrastructure'' elements for SIPs, which
it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \11\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \12\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \13\ For the one exception to that general assumption,
however, i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS, EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
State would work with its corresponding EPA regional office to refine
the scope of a State's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the State's SIP for the NAAQS in question.
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\10\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
\11\ Id., at page 2.
\12\ Id., at attachment A, page 1.
\13\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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On September 25, 2009, EPA issued guidance to make recommendations
to states with respect to the infrastructure SIPs for the 2006
PM2.5 NAAQS.\14\ In the 2009 Guidance, EPA addressed a
number of additional issues that were not germane to the infrastructure
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but
were germane to these SIP submissions for the 2006 PM2.5
NAAQS, e.g., the requirements of section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure elements for those specific
1997 ozone and PM2.5 NAAQS. Significantly, neither the 2007
Guidance nor the 2009 Guidance explicitly referred to the SSM,
director's discretion, minor source NSR, or NSR Reform issues as among
specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance and the
2009 Guidance, however, EPA did not indicate to states that it intended
to interpret these provisions as requiring a substantive submission to
address these specific issues in existing SIP provisions in the context
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007
Guidance merely indicated its belief that the states should make
submissions in which they established that they have the basic SIP
structure necessary to implement, maintain, and enforce the NAAQS. EPA
believes that states can establish that they have the basic SIP
structure, notwithstanding that there may be potential deficiencies
within the existing SIP. Thus, EPA's proposals for other states
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from the pending infrastructure SIP actions. The same holds
true for this action on the 1997 8-hour ozone infrastructure SIP for
Idaho.
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\14\ See, ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
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EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or otherwise to comply with the CAA.\15\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\16\
[[Page 21708]]
Significantly, EPA's determination that an action on the infrastructure
SIP is not the appropriate time and place to address all potential
existing SIP problems does not preclude the Agency's subsequent
reliance on provisions in section 110(a)(2) as part of the basis for
action at a later time. For example, although it may not be appropriate
to require a state to eliminate all existing inappropriate director's
discretion provisions in the course of acting on the infrastructure
SIP, EPA believes that section 110(a)(2)(A) may be among the statutory
bases that the Agency cites in the course of addressing the issue in a
subsequent action.\17\
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\15\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21,639 (April 18, 2011).
\16\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule'' (75 FR 82536, Dec. 30, 2010). EPA
has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\17\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., 75 FR 42342 (July 21, 2010) (proposed
disapproval of director's discretion provisions); 76 FR 4540 (Jan.
26, 2011) (final disapproval of such provisions).
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V. What is EPA's analysis of Idaho's submittal?
The Idaho SIP submittal cites an overview of the Idaho air quality
laws and regulations including portions of the Idaho Environmental
Protection and Health Act (EPHA) and the Rules of the Control of Air
Pollution in Idaho. Idaho Department of Environmental Quality (DEQ)
annually updates and refers to EPA for incorporation by reference of
all NAAQS and updates to 40 CFR part 51, Appendix W--Guidelines on Air
Quality Models. The Idaho submittal addresses the elements of section
110(a)(2) as described below. A more detailed review and analysis of
the Idaho infrastructure SIP elements is provided in the Technical
Support Document (TSD), which is found in the docket for this proposed
rulemaking.
110(a)(2)(A): Emission Limits and Other Control Measures
Section 110(a)(2)(A) requires SIPs to include enforceable emission
limits and other control measures, means, or techniques, as well as
schedules and timetables for compliance. EPA notes that the specific
nonattainment area plan requirements of Section 110(a)(2)(I) are
subject to the timing requirement of Section 172, not the timing
requirement of Section 110(a)(1).
Idaho's submittal: The Idaho SIP submittal cites several laws and
regulations including Idaho Code Section 39-105(3)(d) which provides
Idaho DEQ with the broad power to supervise and administer a system to
safeguard air quality. In addition, Idaho Code Section 39-115 provides
Idaho DEQ with specific authority for the issuance of air quality
permits and to charge and collect permit fees. Rules relating to air
quality permits are found at IDAPA 58.01.01.200 through 228, 300
through 399 and 400 through 410. Estimates of ambient concentrations
are based on air quality models, databases and other requirements
specified in 40 CFR part 51, Appendix W (Guideline on Air Quality
Models). Idaho DEQ annually updates and refers to EPA for incorporation
by reference of all national ambient air quality standards and updates
to 40 CFR part 51, Appendix W. IDAPA 58.01.01.401.03 provides DEQ with
the authority to require a Tier II permit if it determines emission
rate reductions are necessary to attain or maintain any ambient air
quality standard or applicable prevention of significant deterioration
(PSD) increments. Specific requirements for major sources in attainment
or unclassifiable areas are listed in IDAPA 58.01.01.202, 205, and 209.
Specific requirements for major sources in nonattainment areas are
listed in 58.01.01.202, 204, and 209. Federal NSR requirements are
incorporated in both IDAPA 58.01.01.204 and 205. Please see the TSD in
the docket for this action for a detailed description of the above-
referenced Idaho provisions.
EPA analysis: EPA most recently approved IDAPA 58.01.01.107, which
incorporates by reference EPA regulations at 40 CFR part 50 for the
National Primary and Secondary Ambient Air Quality Standards, revised
as of July 1, 2008, on November 26, 2010 (75 FR 72719). We are
proposing to concurrently approve the portion of the June 20, 2011, SIP
revision which updates the incorporation by reference of 40 CFR part
50, 40 CFR part 51, 40 CFR part 52, 40 CFR part 53, and 40 CFR part 58
at IDAPA 58.01.01.107.03 as of July 1, 2010. Idaho has no areas
designated nonattainment for the 1997 8-hour ozone NAAQS. Idaho
regulates emissions of ozone and its precursors through its SIP-
approved major and minor source permitting programs. Therefore, EPA is
proposing to approve the Idaho SIP as meeting the requirements of
section 110(a)(2)(A) for the 1997 8-hour ozone NAAQS.
In this action, EPA is not proposing to approve or disapprove any
existing state provisions with regard to excess emissions during
startup, shutdown, or malfunction (SSM) of operations at a facility.
EPA believes that a number of states may have SSM provisions that are
contrary to the CAA and existing EPA guidance \18\ and the Agency plans
to address such state regulations in the future. In the meantime, EPA
encourages any state having a deficient SSM provision to take steps to
correct it as soon as possible.
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\18\ Steven Herman, Assistant Administrator for Enforcement and
Compliance Assurance, and Robert Perciasepe, Assistant Administrator
for Air and Radiation. ``State Implementation Plans (SIPs): Policy
Regarding Excess Emissions During Malfunctions, Startup, and
Shutdown.'' Memorandum to EPA Air Division Directors, August 11,
1999.
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In this action, EPA is not proposing to approve or disapprove any
existing state rules with regard to director's discretion or variance
provisions. EPA believes that a number of states may have such
provisions that are contrary to the CAA and existing EPA guidance (52
FR 45109), November 24, 1987, and the Agency plans to take action in
the future to address such state regulations. In the meantime, EPA
encourages any state having a director's discretion or variance
provision that is contrary to the CAA and EPA guidance to take steps to
correct the deficiency as soon as possible.
110(a)(2)(B): Ambient Air Quality Monitoring/Data System
Section 110(a)(2)(B) requires SIPs to include provisions to provide
for establishment and operation of ambient air quality monitors,
collecting and analyzing ambient air quality data, and making these
data available to EPA upon request.
Idaho's submittal: The Idaho SIP submittal references IDAPA
58.01.01.107 and IDAPA 58.01.01.576.05 in response to this requirement.
These rules incorporate by reference 40 CFR part 50 National Primary
and Secondary Air Quality Standards, 40 CFR part 52 Approval and
Promulgation of Implementation Plans, 40 CFR part 53 Ambient Air
Monitoring Reference and Equivalent Methods, and 40 CFR part 58
Appendix B Ambient Air Quality Surveillance Quality Assurance
Requirements for Prevention of Significant Deterioration. These rules
give Idaho authority to implement ambient air monitoring surveillance
systems in accordance with the requirements of referenced sections of
the CAA.
Idaho DEQ collects and reports to EPA ambient air quality data for
PM2.5, PM10, NOX, CO, ozone and
SOX. These data are reviewed, verified and validated prior
to being submitted to EPA's Air Quality System, or AQS, no later than
90 days from the end of the calendar quarter from which the data was
collected. On July 1 of each year,
[[Page 21709]]
the previous year's ambient air monitoring data is certified by the
Idaho DEQ Air Division Administrator as being true, accurate and
complete.
EPA analysis: A comprehensive air quality monitoring plan, intended
to meet requirements of 40 CFR part 58 was submitted by Idaho to EPA on
January 15, 1980 (40 CFR 52.670) and approved by EPA on July 28, 1982.
This air quality monitoring plan has been subsequently updated, with
the most recent submittal dated July 1, 2011. EPA approved the plan on
September 6, 2011. This plan includes, among other things, the
locations for the ozone monitoring network. Idaho makes this plan
available for public review on Idaho DEQ's Web site at https://www.deq.idaho.gov/air-quality/monitoring/monitoring-network.aspx. The
Web site also includes an interactive map of Idaho's air monitoring
network. We are proposing to concurrently approve the portion of the
June 20, 2011, SIP revision which updates the incorporation by
reference of 40 CFR part 50, 40 CFR part 51, 40 CFR part 52, 40 CFR
part 53, and 40 CFR part 58 at IDAPA 58.01.01.107.03 as of July 1,
2010. Based on the foregoing, EPA proposes to approve the Idaho SIP as
meeting the requirements of CAA section 110(a)(2)(B) for the 1997 8-
hour ozone NAAQS.
110(a)(2)(C): Program for Enforcement of Control Measures
Section 110(a)(2)(C) requires states to include a program providing
for enforcement of all SIP measures and the regulation of construction
of new or modified stationary sources, including a program to meet PSD
and nonattainment NSR requirements.
Idaho's submittal: The Idaho SIP submittal refers to Idaho Code
Section 39-108 which provides DEQ with the authority to enforce both
administratively and civily the Idaho Environmental Protection and
Health Act (EPHA), or any rule, permit or order promulgated pursuant to
the EPHA. Criminal enforcement is authorized at Idaho Code Section 39-
109. Emergency order authority, similar to that under section 303 of
the CAA, is located at Idaho Code Section 39-112. The Idaho submission
also refers to laws and regulations requiring stationary source
compliance with the NAAQS discussed in their response to 110(a)(2)(A).
Please see the TSD in the docket for this action for a detailed
description of the above-referenced Idaho provisions.
EPA analysis: To generally meet the requirements of section
110(a)(2)(C), a state is required to have PSD, nonattainment NSR, and
minor NSR permitting programs adequate to implement the 1997 8-hour
ozone NAAQS. As explained above, in this action EPA is not evaluating
nonattainment related provisions, such as the nonattainment NSR program
required by part D of the CAA. In addition, Idaho has no nonattainment
areas for the 1997 ozone NAAQS.
EPA believes Idaho code provides DEQ with the authority to enforce
the Idaho EPHA, air quality regulations, permits, and orders
promulgated pursuant to the EPHA. Idaho DEQ staffs and maintains an
enforcement program to ensure compliance with SIP requirements. Idaho
DEQ may issue emergency orders to reduce or discontinue emission of air
contaminants where air emissions cause or contribute to imminent and
substantial endangerment. Enforcement cases may be referred to the
state Attorney General's Office for civil or criminal enforcement. EPA
therefore proposes to approve the Idaho SIP as meeting the requirements
of 110(a)(2)(C) related to enforcement for the 1997 8-hour ozone NAAQS.
EPA most recently approved revisions to Idaho's PSD program on
November 26, 2010 (75 FR 72719). Idaho's PSD program includes NOx as a
precursor for ozone. However, EPA previously noted that Idaho's PSD
program had a deficiency because the state did not have the authority
to implement the PSD permitting program with respect to GHG emissions
(75 FR 77698, Dec. 13, 2010). Since that time, Idaho undertook rule
revisions and submitted a SIP revision to EPA on June 20, 2011, which
addresses this deficiency. The Idaho SIP revision includes an update to
the state's incorporation by reference of federal PSD program
regulations at 40 CFR part 52, including 40 CFR 52.21, as of July 1,
2010, and adds a new incorporation by reference of the Tailoring Rule
because it became effective after the July 1, 2010, citation date.
These federal rules are incorporated by reference into Idaho rules at
IDAPA 58.01.01.107.03. As a result of EPA's approval of the SIP
revision, Idaho's SIP will apply to GHG emitting sources as specified
in the amended definition of ``subject to regulation'' in 40 CFR
52.21(b)(49). Idaho's SIP will also phase in PSD program applicability
to sources at the emissions thresholds and time frames laid out in the
Tailoring Rule. In this action EPA is proposing to approve the portion
of Idaho's June 20, 2011, SIP revision to apply Idaho's PSD program to
greenhouse gas emitting sources at the emissions thresholds and in the
same time frames as those specified in the Tailoring Rule. In
conjunction with this proposed approval of Idaho's PSD program for GHG-
emitting sources, EPA is proposing to rescind the FIP at 40 CFR 52.37
which provides for EPA to be the PSD permitting authority for GHG-
emitting sources in Idaho. As a result, EPA is proposing to approve
Idaho's SIP as consistent with the requirements of element 110(a)(2)(C)
as it relates to PSD for the 1997 8-hour ozone NAAQS.
In this action, EPA is not proposing to approve or disapprove any
state rules with regard to NSR Reform requirements for major sources.
EPA most recently approved changes to Idaho's NSR program, including
NSR Reform, on November 26, 2010 (75 FR 72719). In addition, EPA has
determined that Idaho's minor NSR program adopted pursuant to section
110(a)(2)(C) of the Act regulates emissions of ozone and its
precursors. In this action, EPA is not proposing to approve or
disapprove the state's existing minor NSR program itself to the extent
that it is inconsistent with EPA's regulations governing this program.
EPA believes that a number of states may have minor NSR provisions that
are contrary to the existing EPA regulations for this program. EPA
intends to work with states to reconcile state minor NSR programs with
EPA's regulatory provisions for the program. The statutory requirements
of section 110(a)(2)(C) provide for considerable flexibility in
designing minor NSR programs, and EPA believes it may be time to
revisit the regulatory requirements for this program to give the states
an appropriate level of flexibility to design a program that meets
their particular air quality concerns, while assuring reasonable
consistency across the country in protecting the NAAQS with respect to
new and modified minor sources.
Based on the foregoing, EPA is proposing to approve the Idaho SIP
as meeting the requirements of CAA section 110(a)(2)(C) for the 1997 8-
hour ozone NAAQS.
110(a)(2)(D): Interstate Transport
Section 110(a)(2)(D) requires SIPs to include provisions
prohibiting any source or other type of emissions activity in one state
from contributing significantly to nonattainment, or interfering with
maintenance of the NAAQS in another state, or from interfering with
measures required to prevent significant deterioration of air quality
or to protect visibility in another state.
As noted above, this action does not address the requirements of
110(a)(2)(D)(i) for the 8-hour ozone
[[Page 21710]]
NAAQS which have been addressed by two separate findings issued by EPA
on November 26, 2010 (75 FR 72705) and June 22, 2011 (76 FR 36329).
Section 110(a)(2)(D)(ii) requires SIPs to include provisions insuring
compliance with the applicable requirements of sections 126 and 115
(relating to interstate and international pollution abatement).
Specifically, section 126(a) requires new or modified major sources to
notify neighboring states of potential impacts from the source.
EPA analysis: EPA most recently approved revisions to Idaho's PSD
program on November 26, 2010 (75 FR 72719). Idaho's PSD regulations
provide for notice consistent with the requirements of the EPA PSD
program. Idaho issues notice of its draft permits and neighboring
states consistently receive copies of those drafts. The state also has
no pending obligations under section 115 or 126(b) of the Act. EPA is
proposing to approve the Idaho SIP as meeting the requirements of CAA
Section 110(a)(2)(D)(ii) for the 1997 8-hour ozone NAAQS.
110(a)(2)(E): Adequate Resources
Section 110(a)(2)(E) requires states to provide (i) necessary
assurances that the state will have adequate personnel, funding, and
authority under state law to carry out the SIP (and is not prohibited
by any provision of Federal or state law from carrying out the SIP or
portion thereof), (ii) requires that the state comply with the
requirements respecting state boards under CAA Section 128 and (iii)
necessary assurances that, where the state has relied on a local or
regional government, agency, or instrumentality for the implementation
of any SIP provision, the state has responsibility for ensuring
adequate implementation of such SIP provision.
Idaho's submittal: The Idaho SIP submittal addresses
110(a)(2)(E)(i) regarding adequate personnel, funding and authority and
refers to specific Idaho statute including Idaho Code Section 39-106
which gives the Idaho DEQ Director the authority to hire personnel to
carry out duties of the department. In addition, Idaho Code 39-105 lays
out the powers and duties of Idaho DEQ's director and gives the
director the power to utilize any federal aid and grants. Finally,
Idaho Code Section 39-107B establishes the Department of Environmental
Quality Fund which receives appropriated funds, transfers from the
general fund, federal grants, fees for services, permitting fees and
other program income.
With regard to the state boards requirements under CAA Section 128,
Idaho indicated in its submission that the state's Board of
Environmental Quality, established pursuant to Idaho Code Section 39-
107, meets the requirements of Section 128. Idaho refers to the State's
Ethics in Government Act of 1990 at Idaho Code Section 59-701, et seq.
which lays out the ethics requirements for public officials including
acting in the public interest, disclosure of conflicts of interest, and
procedures for excusing board members where conflicts exist.
With regard to assurances that the state has responsibility for
ensuring adequate implementation of the plan where the state has relied
on local or regional government agencies, DEQ addressed the agreements
with locals on nonattainment plans. On certain nonattainment plans, DEQ
has entered into agreements for local implementation and enforcement of
measures such as wood stove and street sweeping ordinances. When DEQ
relies on local enforcement it also is able to enforce the local
ordinance under its own authorities. For instance, failure to street
sweep when required may constitute a violation of the requirement to
control fugitive dust, IDAPA 58.01.01.650-651. If a resident failed to
comply with a woodstove ordinance, then DEQ could issue the resident a
Tier II permit and enforce the ordinance terms then included in the
permit. Please see the TSD in the docket for this action for a detailed
description of the above-referenced Idaho provisions.
EPA analysis: EPA is proposing to find that the above-listed laws
and regulations provide Idaho DEQ with adequate authority and resources
to carry out SIP obligations with respect to the requirements of CAA
section 110(a)(2)(E)(i) for the 1997 8-hour ozone NAAQS. EPA is also
proposing to find that Idaho has provided necessary assurances that,
where the state has relied on a local or regional government, agency,
or instrumentality for the implementation of any SIP provision, the
state has responsibility for ensuring adequate implementation of the
SIP with regards to the 1997 8-hour ozone NAAQS. Therefore EPA is
proposing to approve the Idaho SIP as meeting the requirements of CAA
section 110(a)(2)(E)(i) and (E)(iii) for the 1997 8-hour ozone NAAQS.
Idaho's SIP submission did not address all of the requirements of CAA
Section 128, specifically the provision which requires a SIP to specify
that a board or body which approves permits or enforcement orders under
the CAA to have at least a majority of members who represent the public
interest and do not derive any significant portion of their income from
persons subject to permits or enforcement orders under the CAA. EPA is
taking no action on CAA section 110(a)(2)(E)(ii) at this time and will
address these requirements in a separate action.
110(a)(2)(F): Stationary Source Monitoring System
Section 110(a)(2)(F) requires (i) the installation, maintenance,
and replacement of equipment, and the implementation of other necessary
steps by owners or operators of stationary sources to monitor emissions
from such sources, (ii) periodic reports on the nature and amounts of
emissions and emissions-related data from such sources, and (iii)
correlation of such reports by the state agency with any emission
limitations or standards established pursuant to the CAA, which reports
shall be available at reasonable times for public inspection.
Idaho's submittal: The Idaho SIP submittal states that DEQ's air
quality permits are practically enforceable and contain requirements to
(i) install, maintain and replace equipment, (ii) monitor emissions,
and (iii) submit reports. IDAPA 58.01.01.121 provides authority to
Idaho DEQ to require monitoring, recordkeeping and periodic reporting
where sources may violate air quality provisions, orders or rules. In
addition, the Idaho DEQ may issue information orders including
requirements to conduct emissions monitoring, record keeping, reporting
and other requirements. IDAPA 58.01.01.157 specifies test methods and
procedures for source testing and reporting to the Idaho DEQ. Records
are available for public inspection under Idaho's Public Records Act.
Please see the TSD in the docket for this action for a detailed
description of the above-referenced Idaho provisions.
EPA analysis: The provisions cited by Idaho's SIP submittal provide
authority for monitoring, recordkeeping and reporting requirements for
sources subject to major and minor source permitting. EPA is proposing
to approve the Idaho SIP as meeting the requirements of CAA Section
110(a)(2)(F) for the 1997 8-hour ozone NAAQS.
110(a)(2)(G): Emergency Episodes
Section 110(a)(2)(G) requires states to provide for authority to
address activities causing imminent and substantial endangerment to
public health, including contingency plans to implement the emergency
episode provisions in their SIPs.
[[Page 21711]]
Idaho's submittal: The Idaho SIP submittal cites Idaho Code 39-108
which provides emergency order authority comparable to that in CAA
Section 303. In addition, the Idaho submittal cites several Idaho
regulations that comprise Idaho's Air Pollution Emergency Rules (IDAPA
58.01.01.550-562) the purpose of which is ``to define criteria for an
air pollution emergency, to formulate a plan for preventing or
alleviating such an emergency, and to specify rules for carrying out
the plan.'' Please see the TSD in the docket for this action for a
detailed description of the above-referenced Idaho provisions.
EPA analysis: As noted in EPA's October 2, 2007, guidance, the
significant harm level for the 8-hour ozone NAAQS shall remain
unchanged at 0.60 ppm ozone, 2-hour average, as indicated in 40 CFR
51.151. EPA believes that the existing ozone-related provisions of 40
CFR 51 Subpart H remain appropriate. Idaho's regulations listed above,
which were previously approved by EPA on January 16, 2003 (68 FR 2217),
continue to be consistent with the requirements of 40 CFR 51.151.
Accordingly, EPA is proposing to approve the Idaho SIP as meeting the
requirements of CAA section 110(a)(2)(G) for the 1997 8-hour ozone
NAAQS.
110(a)(2)(H): Future SIP Revisions
Section 110(a)(2)(H) requires that SIPs provide for revision of
such plan (i) from time to time as may be necessary to take account of
revisions of such national primary or secondary ambient air quality
standard or the availability of improved or more expeditious methods of
attaining such standard, and (ii), except as provided in paragraph
110(a)(3)(C), whenever the Administrator finds on the basis of
information available to the Administrator that the SIP is
substantially inadequate to attain the NAAQS which it implements or to
otherwise comply with any additional requirements under the CAA.
Idaho's submittal: The Idaho SIP submittal refers to Idaho Code
Section 39-105(3)(d) which provides DEQ with the broad authority to
revise rules, in accordance with Idaho administrative procedures for
rulemaking, to meet national ambient air quality standards as
incorporated by reference in IDAPA 58.01.01.107. Idaho also refers to
provisions cited in their submittal related to permitting at CAA
Section 110(a)(2)(A) discussed above to demonstrate that the Idaho SIP
satisfies this requirement. Please see the TSD in the docket for this
action for a detailed description of the above-referenced Idaho
provisions.
EPA analysis: EPA finds that Idaho has adequate authority to
regularly update the state SIP to take into account revisions of the
NAAQS and other related regulatory changes. In practice, Idaho
regularly submits SIP revisions to EPA in order to revise the SIP for
recent federal regulatory changes. EPA most recently approved revisions
to Idaho's SIP on November 26, 2010 (75 FR 72719). Accordingly, EPA is
proposing to approve the Idaho SIP as meeting the requirements of
section 110(a)(2)(H) for the 1997 8-hour ozone NAAQS.
110(a)(2)(I): Nonattainment Area Plan Revision Under Part D
There are two elements identified in section 110(a)(2) not governed
by the 3-year submission deadline of section 110(a)(1) because SIPs
incorporating necessary local nonattainment area controls are not due
within 3 years after promulgation of a new or revised NAAQS, but rather
due at the time of the nonattainment area plan requirements pursuant to
section 172. These requirements are: (i) submissions required by
section 110(a)(2)(C) to the extent that subsection refers to a permit
program as required in part D Title I of the CAA, and (ii) submissions
required by section 110(a)(2)(I) which pertain to the nonattainment
planning requirements of part D, Title I of the CAA. As a result, this
action does not address infrastructure elements related to section
110(a)(2)(C) with respect to nonattainment NSR or section 110(a)(2)(I).
110(a)(2)(J): Consultation With Government Officials
Section 110(a)(2)(J) requires states to provide a process for
consultation with local governments and Federal Land Managers carrying
out NAAQS implementation requirements pursuant to section 121. Section
110(a)(2)(J) further requires states to notify the public if NAAQS are
exceeded in an area and to enhance public awareness of measures that
can be taken to prevent exceedances. Lastly, section 110(a)(2)(J)
requires states to meet applicable requirements of Part C related to
prevention of significant deterioration and visibility protection.
Idaho's submittal: The Idaho SIP submittal cites laws and
regulations relating to public participation processes for SIP
revisions and permitting programs. Idaho DEQ consults with other state
agencies, local agencies, and nongovernmental organizations, as well as
with the environmental agencies of other states regarding air quality
issues. Idaho refers to Idaho Code Section 39-105.03(c) which promotes
outreach with local governments and Idaho Code Section 39-129 which
provides authority for Idaho DEQ to enter into agreements with local
governments. In addition, Idaho refers to its transportation conformity
rules, and states that Idaho DEQ generally incorporates by reference
the federal PSD and Nonattainment new source review programs. Please
see the TSD in the docket for this action for a detailed description of
the above-referenced Idaho provisions.
EPA analysis: Idaho's SIP includes specific provisions for
consulting with local governments and Federal Land Managers as
specified in CAA section 121, including the Idaho rules for major
source PSD permitting and Tier II operating permits. Idaho DEQ
routinely coordinates with local governments, states, federal land
managers and other stakeholders on air quality issues and provides
notice to appropriate agencies related to permitting actions. Idaho
regularly participates in regional planning processes including the
Western Regional Air Partnership which is a voluntary partnership of
states, tribes, federal land managers, local air agencies and the US
EPA whose purpose is to understand current and evolving regional air
quality issues in the West. Therefore, EPA is proposing to approve the
Idaho SIP as meeting the requirements of CAA section 110(a)(2)(J) for
consultation with government officials for the 1997 8-hour ozone NAAQS.
Idaho actively participates and submits information to EPA's AIRNOW
and Enviroflash Air Quality Alert programs. Idaho also provides the
daily air quality index to the public on their Web site at https://www.deq.idaho.gov/air/aqindex.cfm, as well as measures that can be
taken to prevent exceedances. Therefore, EPA is proposing to approve
the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(J)
for public notification for the 1997 8-hour ozone NAAQS.
Turning to the requirement in section 110(a)(2)(J) that the SIP
meet the applicable requirements of part C of title I of the CAA, EPA
has evaluated this requirement in the context of section 110(a)(2)(C)
with respect to permitting. EPA most recently approved revisions to
Idaho's PSD program on November 26, 2010 (75 FR 72719). Idaho's PSD
program regulates NOX as a precursor for ozone. Idaho has no
nonattainment areas for the 1997 8-hour ozone standard. EPA believes
that, conditioned upon the finalization of the
[[Page 21712]]
rescission of the GHG FIP and approval of the SIP revision pertaining
to the application of PSD permitting to the specified GHG sources that
is part of this action, Idaho's SIP meets the requirements of CAA
section 110(a)(2)(J) for PSD for the 1997 8-hour ozone NAAQS. As
referenced in the analysis for section 110(a)(2)(C), EPA previously
noted that Idaho's PSD program had a deficiency because the state did
not have the authority to implement the PSD permitting program with
respect to GHG emissions (75 FR 77698, Dec. 13, 2010). Since that time,
Idaho undertook rule revisions and submitted a SIP revision to EPA on
June 20, 2011, a portion of which addresses this deficiency. The Idaho
SIP revision includes an update to the state's incorporation by
reference of 40 CFR part 52, including federal PSD program regulations
at 40 CFR 52.21 as of July 1, 2010, and adds a new incorporation by
reference of the Tailoring Rule because it became effective after the
July 1, 2010 citation date. These federal rules are incorporated by
reference into Idaho rules at IDAPA 58.01.01.107.03. As a result,
Idaho's SIP will apply to GHG emitting sources as specified in the
amended definition of ``subject to regulation'' in 40 CFR 52.21(b)(49).
In this action EPA proposes to approve the portion of Idaho's June 20,
2011, SIP revision to apply Idaho's PSD program to GHG emitting sources
at the emissions thresholds and in the same time frames as those
specified in the Tailoring Rule. In conjunction with this proposed
approval of Idaho's PSD program for GHG-emitting sources, EPA is
proposing to rescind the FIP at 40 CFR 52.37 which provides for EPA to
be the PSD permitting authority for GHG-emitting sources in Idaho. As a
result, EPA is proposing to approve the Idaho SIP as meeting the
requirements of section 110(a)(2)(J) with regard to PSD for the 1997 8-
hour ozone NAAQS.
With regard to the applicable requirements for visibility
protection, EPA recognizes that states are subject to visibility and
regional haze program requirements under part C of the CAA. In the
event of the establishment of a new NAAQS, however, the visibility and
regional haze program requirements under part C do not change. Thus we
find that there is no new visibility obligation triggered under section
110(a)(2)(J) when a new NAAQS becomes effective.
Based on the above, EPA is proposing to approve the Idaho SIP as
meeting the requirements of section 110(a)(2)(J) for the 1997 8-hour
ozone NAAQS.
110(a)(2)(K): Air Quality and Modeling/Data
Section 110(a)(2)(K) requires that SIPs provide for (i) the
performance of such air quality modeling as the Administrator may
prescribe for the purpose of predicting the effect on ambient air
quality of any emissions of any air pollutant for which the
Administrator has established a national ambient air quality standard,
and (ii) the submission, upon request, of data related to such air
quality modeling to the Administrator.
Idaho's submittal: Air quality modeling is conducted during
development of revisions to the SIP, as appropriate for the state to
demonstrate attainment with required air quality standards. Modeling is
also addressed in Idaho's source permitting process as discussed at
Section 110(a)(2)(A) above. Estimates of ambient concentrations are
based on air quality models, data bases and other requirements
specified in 40 CFR 51, Appendix W (Guidelines on Air Quality Models)
which is incorporated by reference under IDAPA 58.01.01.107.03. Please
see the TSD in the docket for this action for a detailed description of
the above-referenced Idaho provisions.
EPA analysis: EPA previously approved Idaho regulations on air
quality modeling into the SIP. EPA most recently approved IDAPA
58.01.01.107, which incorporates by reference EPA regulations at 40 CFR
part 51, Appendix W (Guidelines on Air Quality Models) revised as of
July 1, 2008, on November 26, 2010 (75 FR 72719).
We are proposing to concurrently approve the portion of the June
20, 2011, SIP revision which updates the incorporation by reference of
40 CFR part 50, 40 CFR part 51, 40 CFR part 52, 40 CFR part 53, and 40
CFR part 58 at IDAPA 58.01.01.107.03 as of July 1, 2010, as previously
discussed above. While Idaho has no nonattainment areas for ozone,
Idaho has submitted modeling data to EPA related to other pollutants.
For example, Idaho submitted to EPA the PM10 Maintenance
Plan for Ada County/Boise Idaho Area which was supported by air quality
modeling data. The maintenance plan was approved by EPA as a SIP
revision on October 27, 2003 (68 FR 61106). EPA is proposing to approve
the Idaho SIP as meeting the requirements of CAA Section 110(a)(2)(K)
for the 1997 8-hour ozone NAAQS.
110(a)(2)(L): Permitting Fees
Section 110(a)(2)(L) requires SIPs to require each major stationary
source to pay permitting fees to cover the cost of reviewing,
approving, implementing and enforcing a permit, until such time as the
SIP fee requirement is superseded by EPA's approval of the state's
title V operating permit program.
Idaho's submittal: The Idaho SIP submittal states that CAA section
110(a)(2)(L) requires owners and operators of major stationary sources
to pay to the permitting authority fees to cover the costs of review,
implementation and enforcement until a fee requirement is superseded
with respect to such sources by the Administrator's approval of a fee
program under title V. EPA approved Idaho's title V permitting program
on October 4, 2001 (66 FR 50574) with an effective date of November 5,
2001. EPA regularly reviews DEQ's title V fee program to determine if
the fee structure is adequate to pay for the program and assure the
funding is only going toward title V implementation.
EPA analysis: EPA approved Idaho's title V permitting program on
October 4, 2001 (66 FR 50574) with an effective date of November 5,
2001. While Idaho's operating permit program is not formally approved
into the state's SIP, it is a legal mechanism the state can use to
ensure that Idaho DEQ has sufficient resources to support the air
program, consistent with the requirements of the SIP. Before EPA can
grant full approval, a state must demonstrate the ability to collect
adequate fees. Idaho's title V permitting program included a
demonstration that the state will collect a fee from title V sources
above the presumptive minimum in accordance with 40 CFR 70.9(b)(2)(i).
Idaho collects sufficient fees to administer the title V permit
program. Therefore, EPA is proposing to conclude that Idaho has
satisfied the requirements of CAA Section 110(a)(2)(L) for the 1997 8-
hour ozone NAAQS.
110(a)(2)(M): Consultation and Participation by Affected Local Entities
Section 110(a)(2)(M) requires states to provide for consultation
and participation in SIP development by local political subdivisions
affected by the SIP.
Idaho's submittal: Consultation with a variety of different state
and local organizations is a regular part of Idaho DEQ's process of
developing SIP revisions. The requirements for plan preparation and
public process include 40 CFR part 51, incorporated by reference under
IDAPA 58.01.01.107.03.a. Idaho also referenced rules cited under
110(a)(2)(J) above. Please see the TSD in the docket for this action
for a detailed description of the above-referenced Idaho provisions.
[[Page 21713]]
EPA analysis: EPA most recently approved IDAPA 58.01.01.107, which
incorporates by reference EPA regulations at 40 CFR part 51--
Requirements for Preparation, Adoption, and Submittal of Implementation
Plans--on November 26, 2010 (75 FR 72719). As previously discussed
above, we are proposing to approve portions of the June 20, 2011, SIP
revision which update the incorporation by reference of 40 CFR part 51
as of July 1, 2010, among other federal regulations. EPA most recently
approved Idaho permitting rules at IDAPA 58.01.01.209 and 58.01.01.404
which provide opportunity and procedures for public comment and notice
to appropriate federal, state and local agencies on January 16, 2003
(68 FR 2217). EPA is proposing to approve Idaho's SIP as meeting the
requirements of CAA Section 110(a)(2)(M) for the 1997 8-hour ozone
NAAQS.
VI. Scope of Proposed Action
Idaho has not demonstrated authority to implement and enforce IDAPA
Chapter 58 within ''Indian Country'' as defined in 18 U.S.C. 1151.\19\
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 (December 6, 1996) (interim approval does not
extend to Indian Country); 66 FR 50574 (October 4, 2001) (full approval
does not extend to Indian Country).
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\19\ ''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.
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VII. Proposed Action
EPA is proposing to approve the SIP submittal from the State of
Idaho demonstrating that the Idaho SIP meets the requirements of
section 110(a)(1) and (2) of the CAA for the NAAQS promulgated for
ozone on July 18, 1997. EPA is proposing to approve in full the
following section 110(a)(2) infrastructure elements for Idaho for the
1997 ozone NAAQS: (A), (B), (C), (D)(ii), (E)(i), (E)(iii), (F), (G),
(H), (J), (K), (L), (M). EPA is taking no action on CAA section
110(A)(2)(E)(ii) at this time. EPA will address the requirements of
this sub-element in a separate action. EPA is also proposing to approve
a portion of Idaho's June 20, 2011, SIP submittal that applies Idaho's
PSD Program to GHG-emitting sources at the emissions thresholds and in
the same time frames as those specified in the Tailoring Rule. In
conjunction with this proposed approval of Idaho's PSD program for GHG-
emitting sources, EPA is proposing to rescind the FIP at 40 CFR 52.37
which provides for EPA to be the PSD permitting authority for GHG-
emitting sources in Idaho.
EPA is also proposing to approve portions of Idaho's June 20, 2011,
annual IBR SIP update to revise the incorporation by reference of
federal regulations revised as of July 1, 2010, in order to ensure
Idaho's SIP is up to date with changes to federal regulations. EPA is
not acting on the portions of the SIP revision that are not related to
the criteria pollutants regulated under title I of the Act or the
requirements for SIPs under section 110 of the Act. Finally, EPA is
proposing to approve the removal of language from the Idaho SIP that
has become unnecessary due to Idaho's incorporation by reference of the
federal NAAQS and the federal PSD regulations. Specifically, EPA is
proposing to approve the removal of the subsections of IDAPA
58.01.01.577 ``Ambient Air Quality Standards for Specific Pollutants''
that relate to pollutants for which EPA has promulgated a NAAQS, and
which are now unnecessary because Idaho has incorporated the federal
NAAQS by reference into the state SIP. EPA is also proposing to approve
the changes to Idaho's PSD regulations at IDAPA 58.01.01.581.01 to
remove the increments table in its entirety, and to instead reference
the federal PSD increment requirements contained in 40 CFR 52.21(c),
which are incorporated by reference in the Idaho SIP. This action is
being taken under section 110 and part C of the CAA.
VIII. Statutory and Executive Order Reviews
Under the CAA, 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 CAA. Accordingly, this
proposed action merely approves the state's law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by the state's law. For that reason, this proposed 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 CAA; 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
Idaho, and EPA notes that it
[[Page 21714]]
will not impose substantial direct costs on tribal governments or
preempt tribal law.
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.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 27, 2012.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2012-8706 Filed 4-10-12; 8:45 am]
BILLING CODE 6560-50-P
