Approval and Promulgation of Implementation Plans; Idaho: Infrastructure Requirements for the 1997 and 2006 Fine Particulate Matter and 2008 Ozone National Ambient Air Quality Standards, 16711-16722 [2014-06664]
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Federal Register / Vol. 79, No. 58 / Wednesday, March 26, 2014 / Proposed Rules
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[FR Doc. 2014–06731 Filed 3–25–14; 8:45 am]
BILLING CODE 4000–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2010–0715, FRL–9908–68–
Region 10]
Approval and Promulgation of
Implementation Plans; Idaho:
Infrastructure Requirements for the
1997 and 2006 Fine Particulate Matter
and 2008 Ozone National Ambient Air
Quality Standards
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to find that
the Idaho SIP meets the infrastructure
requirements of the Clean Air Act (CAA)
for the National Ambient Air Quality
Standards (NAAQS) promulgated for
fine particulate matter (PM2.5) on July
18, 1997 and October 17, 2006, and for
ozone on March 12, 2008. The EPA is
also proposing to find that the Idaho SIP
meets the interstate transport
requirements of the CAA related to
prevention of significant deterioration
and visibility for the 2006 PM2.5 and
2008 ozone NAAQS.
DATES: Comments must be received on
or before April 25, 2014.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R10–
OAR–2010–0715, by any of the
following methods:
• www.regulations.gov: Follow the
on-line instructions for submitting
comments.
• Email: R10-Public_Comments@
epa.gov.
SUMMARY:
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• 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 Mailroom, 9th floor, 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–
0715. The 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
the disclosure of which 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 the EPA will not know
your identity or contact information
unless you provide it in the body of
your comment. If you send an email
comment directly to the 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, the 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 the EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
the 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
the disclosure of which 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
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Federal Register / Vol. 79, No. 58 / Wednesday, March 26, 2014 / Proposed Rules
Region 10, 1200 Sixth Avenue, Seattle,
WA 98101.
FOR FURTHER INFORMATION CONTACT:
Kristin Hall at (206) 553–6357,
hall.kristin@epa.gov, or the above EPA,
Region 10 address.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, it is
intended to refer to the EPA.
Information is organized as follows:
Table of Contents
I. Background
II. CAA Sections 110(a)(1) and (2)
Infrastructure Elements
III. EPA Approach To Review of
Infrastructure SIP Submittals
IV. Analysis of the State Submittals
V. Proposed Action
VI. Statutory and Executive Order Reviews
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I. Background
On July 18, 1997, the EPA
promulgated a new 24-hour and a new
annual NAAQS for fine particulate
matter (PM2.5) (62 FR 38652). More
recently, on October 17, 2006, the EPA
revised the standards for fine particulate
matter, tightening the 24-hour PM2.5
standard from 65 micrograms per cubic
meter (m/m3) to 35 m/m3, and retaining
the current annual PM2.5 standard at 15
m/m3 (71 FR 61144). Subsequently, on
March 12, 2008, the EPA revised the
levels of the primary and secondary 8hour ozone standards to 0.075 parts per
million (73 FR 16436).
The CAA requires that states submit
SIPs meeting the requirements of CAA
sections 110(a)(1) and (2) within three
years after promulgation of a new or
revised standard. CAA 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. To help states meet this
statutory requirement, the EPA issued
guidance to states. On October 2, 2007,
the EPA issued guidance to address
infrastructure SIP elements for the 1997
ozone and 1997 PM2.5 NAAQS.1
Subsequently, on September 25, 2009,
the EPA issued guidance to address SIP
infrastructure elements for the 2006 24hour PM2.5 NAAQS.2 Finally, on
1 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.
2 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 2006 24-
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September 13, 2013, the EPA issued
guidance to address infrastructure SIP
elements for the 2008 ozone NAAQS.3
As noted in the guidance documents, to
the extent an existing SIP already meets
the CAA section 110(a)(2) requirements,
states may certify that fact via a letter to
the EPA.
The State of Idaho made multiple
submittals for purposes of meeting the
requirements of CAA sections 110(a)(1)
and (2). On September 15, 2008, Idaho
submitted a certification that Idaho’s
SIP meets the infrastructure
requirements for the 1997 8-hour ozone
and 1997 PM2.5 NAAQS. On June 28,
2010, Idaho submitted the Idaho
Interstate Transport State
Implementation Plan, in addition to an
updated certification that Idaho’s SIP
meets the infrastructure requirements
for the 1997 and 2006 PM2.5 NAAQS,
and the 1997 and 2008 ozone NAAQS.
Finally, on August 10, 2011, Idaho
submitted a certification confirming
how Idaho’s SIP meets the infrastructure
requirements for the 2006 PM2.5
NAAQS.
We note that this action does not
address the infrastructure requirements
of the CAA with respect to the 1997
ozone NAAQS which were previously
approved on July 17, 2012 (77 FR
41916). This action also does not
address the interstate transport
requirements of certain portions of CAA
section 110(a)(2)(D)(i). The EPA
previously approved Idaho’s submittal
to address CAA section 110(a)(2)(D)(i)
for the 1997 ozone and 1997 PM2.5
NAAQS on November 26, 2010 (75 FR
72705) and June 22, 2011 (76 FR 36329).
Finally, we will address the interstate
transport requirements of CAA section
110(a)(2)(D)(i)(I) for the 2006 PM2.5 and
2008 ozone NAAQS in a separate action.
II. CAA Sections 110(a)(1) and (2)
Infrastructure Elements
CAA section 110(a)(1) provides the
procedural and timing requirements for
SIP submissions after a new or revised
NAAQS is promulgated. CAA 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
hour Fine Particle (PM2.5) National Ambient Air
Quality Standards (NAAQS).’’ Memorandum to
Regional Air Division Directors, Regions I–X,
September 25, 2009.
3 Stephen D. Page, Director, Office of Air Quality
Planning and Standards. ‘‘Guidance on
Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1)
and 110(a)(2).’’ Memorandum to EPA Air Division
Directors, Regions 1–10, September 13, 2013.
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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.4
• 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.
The EPA’s guidance clarified that two
elements identified in CAA section
110(a)(2) are not governed by the three
year submission deadline of CAA
section 110(a)(1) because SIPs
incorporating necessary local
nonattainment area controls are not due
within three years after promulgation of
a new or revised NAAQS, but rather due
at the time the nonattainment area plan
requirements are due pursuant to CAA
section 172 and the various pollutant
specific subparts 2–5 of part D. These
requirements are: (i) Submissions
required by CAA 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 CAA section 110(a)(2)(I)
4 In accordance with the panel of the U.S. Court
of Appeals for the D.C. Circuit opinion, the EPA at
this time is not treating the 110(a)(2)(D)(i)(I) SIP
submission from the State of Idaho as a required SIP
submission. See EME Homer City Generation, L.P.
v. EPA, 696 F .3d 7 (D.C. Cir. 2012), cert. granted,
2013 U.S. Lexis 4801 (2013). However, even if the
submission is not considered to be ‘‘required,’’ the
EPA must act on the 110(a)(2)(D)(i)(I) SIP
submission from Idaho because section 110(k)(2) of
the CAA requires the EPA to act on all SIP
submissions. Unless the EME Homer City decision
is reversed or otherwise modified by the Supreme
Court, which granted review of the case on June 24,
2013, and held oral argument on December 10,
2013, states are not required to submit
110(a)(2)(D)(i)(I) SIPs until the EPA has quantified
their obligations under that section. The portions of
the SIP submission relating to 110(a)(2)(D)(i)(II) and
110(a)(2)(D)(ii), in contrast, are required. In this
notice, we are proposing to act on Idaho’s
submission relating to 110(a)(2)(D)(i)(II) and
110(a)(2)(D)(ii). We will address Idaho’s submission
relating to 110(a)(2)(D)(i)(I) in a separate action.
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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 CAA section 110(a)(2)(C) with
respect to nonattainment new source
review (NSR) or CAA section
110(a)(2)(I). Furthermore, the EPA
interprets the CAA section 110(a)(2)(J)
provision on visibility as not being
triggered by a new NAAQS because the
visibility requirements in part C, title I
of the CAA are not changed by a new
NAAQS.
III. EPA Approach To Review of
Infrastructure SIP Submittals
The EPA is acting upon the SIP
submission from Idaho that addresses
the infrastructure requirements of CAA
sections 110(a)(1) and 110(a)(2) for the
1997 PM2.5, 2006 PM2.5, and 2008 ozone
NAAQS. The requirement for states to
make a SIP submission of this type
arises out of CAA section 110(a)(1).
Pursuant to section 110(a)(1), states
must make SIP submissions ‘‘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 these SIP
submissions are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
the EPA’s taking any action other than
promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of
specific elements that ‘‘[e]ach such
plan’’ submission must address.
The EPA has historically referred to
these SIP submissions made for the
purpose of satisfying the requirements
of CAA sections 110(a)(1) and 110(a)(2)
as ‘‘infrastructure SIP’’ submissions.
Although the term ‘‘infrastructure SIP’’
does not appear in the CAA, the EPA
uses the term to distinguish this
particular type of SIP submission from
submissions that are intended to satisfy
other SIP requirements under the CAA,
such as ‘‘nonattainment SIP’’ or
‘‘attainment plan SIP’’ submissions to
address the nonattainment planning
requirements of part D of title I of the
CAA, ‘‘regional haze SIP’’ submissions
required by the EPA rule to address the
visibility protection requirements of
CAA section 169A, and nonattainment
new source review permit program
submissions to address the permit
requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing
and general requirements for
infrastructure SIP submissions, and
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section 110(a)(2) provides more details
concerning the required contents of
these submissions. 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 program
provisions, and some of which pertain
to requirements for both authority and
substantive program provisions.5 The
EPA therefore believes that while the
timing requirement in section 110(a)(1)
is unambiguous, some of the other
statutory provisions are ambiguous. In
particular, the EPA believes that the list
of required elements for infrastructure
SIP submissions provided in section
110(a)(2) contains ambiguities
concerning what is required for
inclusion in an infrastructure SIP
submission.
The following examples of
ambiguities illustrate the need for the
EPA to interpret some section 110(a)(1)
and section 110(a)(2) requirements with
respect to infrastructure SIP
submissions for a given new or revised
NAAQS. One example of ambiguity is
that section 110(a)(2) requires that
‘‘each’’ SIP submission must meet the
list of requirements therein, while the
EPA has long noted that this literal
reading of the statute is internally
inconsistent and would create a conflict
with the nonattainment provisions in
part D of title I of the CAA, which
specifically address nonattainment SIP
requirements.6 Section 110(a)(2)(I)
pertains to nonattainment SIP
requirements and part D addresses
when attainment plan SIP submissions
to address nonattainment area
requirements are due. For example,
section 172(b) requires the EPA to
establish a schedule for submission of
such plans for certain pollutants when
the Administrator promulgates the
designation of an area as nonattainment,
and section 107(d)(1)(B) allows up to
two years, or in some cases three years,
for such designations to be
5 For example: Section 110(a)(2)(E)(i) 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 SIP-approved program to
address certain sources as required by part C of title
I of the CAA; and section 110(a)(2)(G) provides that
states must have legal authority to address
emergencies as well as contingency plans that are
triggered in the event of such emergencies.
6 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, at 25163–65 (May 12, 2005) (explaining
relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
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16713
promulgated.7 This ambiguity illustrates
that rather than apply all the stated
requirements of section 110(a)(2) in a
strict literal sense, the EPA must
determine which provisions of section
110(a)(2) are applicable for a particular
infrastructure SIP submission.
Another example of ambiguity within
sections 110(a)(1) and 110(a)(2) with
respect to infrastructure SIPs pertains to
whether states must meet all of the
infrastructure SIP requirements in a
single SIP submission, and whether the
EPA must act upon such SIP submission
in a single action. Although section
110(a)(1) directs states to submit ‘‘a
plan’’ to meet these requirements, the
EPA interprets the CAA to allow states
to make multiple SIP submissions
separately addressing infrastructure SIP
elements for the same NAAQS. If states
elect to make such multiple SIP
submissions to meet the infrastructure
SIP requirements, the EPA can elect to
act on such submissions either
individually or in a larger combined
action.8 Similarly, the EPA interprets
the CAA to allow it to take action on the
individual parts of one larger,
comprehensive infrastructure SIP
submission for a given NAAQS without
concurrent action on the entire
submission. For example, the EPA has
sometimes elected to act at different
times on various elements and subelements of the same infrastructure SIP
submission.9
7 The EPA notes that this ambiguity within
section 110(a)(2) is heightened by the fact that
various subparts of part D set specific dates for
submission of certain types of SIP submissions in
designated nonattainment areas for various
pollutants. Note, e.g., that section 182(a)(1) provides
specific dates for submission of emissions
inventories for the ozone NAAQS. Some of these
specific dates are necessarily later than three years
after promulgation of the new or revised NAAQS.
8 See, e.g., ‘‘Approval and Promulgation of
Implementation Plans; New Mexico; Revisions to
the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of
Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR) Permitting,’’ 78 FR
4339 (January 22, 2013) (the EPA’s final action
approving the structural PSD elements of the New
Mexico SIP submitted by the State separately to
meet the requirements of the EPA’s 2008 PM2.5 NSR
rule), and ‘‘Approval and Promulgation of Air
Quality Implementation Plans; New Mexico;
Infrastructure and Interstate Transport
Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR
4337) (January 22, 2013) (the EPA’s final action on
the infrastructure SIP for the 2006 PM2.5 NAAQS).
9 On December 14, 2007, the State of Tennessee,
through the Tennessee Department of Environment
and Conservation, made a SIP revision to the EPA
demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). The EPA proposed
action for infrastructure SIP elements (C) and (J) on
January 23, 2012 (77 FR 3213) and took final action
on March 14, 2012 (77 FR 14976). On April 16,
2012 (77 FR 22533) and July 23, 2012 (77 FR
42997), the EPA took separate proposed and final
actions on all other section 110(a)(2) infrastructure
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Ambiguities within sections 110(a)(1)
and 110(a)(2) may also arise with
respect to infrastructure SIP submission
requirements for different NAAQS.
Thus, the 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. The states’ attendant
infrastructure SIP submissions for each
NAAQS therefore could be different. For
example, the monitoring requirements
that a state might need to meet in its
infrastructure SIP submission for
purposes of section 110(a)(2)(B) could
be very different for different pollutants,
for example because the content and
scope of a state’s infrastructure SIP
submission to meet this element might
be very different for an entirely new
NAAQS than for a minor revision to an
existing NAAQS.10
The EPA notes that interpretation of
section 110(a)(2) is also necessary when
the EPA reviews other types of SIP
submissions required under the CAA.
Therefore, as with infrastructure SIP
submissions, the EPA also has to
identify and interpret the relevant
elements of section 110(a)(2) that
logically apply to these other types of
SIP submissions. For example, section
172(c)(7) requires that attainment plan
SIP submissions required by part D have
to meet the ‘‘applicable requirements’’
of section 110(a)(2). Thus, for example,
attainment plan SIP submissions must
meet the requirements of section
110(a)(2)(A) regarding enforceable
emission limits and control measures
and section 110(a)(2)(E)(i) regarding air
agency resources and authority. By
contrast, it is clear that attainment plan
SIP submissions required by part D
would not need to meet the portion of
section 110(a)(2)(C) that pertains to the
PSD program required in part C of title
I of the CAA, because PSD does not
apply to a pollutant for which an area
is designated nonattainment and thus
subject to part D planning requirements.
As this example illustrates, each type of
SIP submission may implicate some
elements of section 110(a)(2) but not
others.
Given the potential for ambiguity in
some of the statutory language of section
110(a)(1) and section 110(a)(2), the EPA
believes that it is appropriate to
interpret the ambiguous portions of
section 110(a)(1) and section 110(a)(2)
in the context of acting on a particular
SIP submission. In other words, the EPA
SIP elements of Tennessee’s December 14, 2007
submittal.
10 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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assumes that Congress could not have
intended that each and every SIP
submission, regardless of the NAAQS in
question or the history of SIP
development for the relevant pollutant,
would meet each of the requirements, or
meet each of them in the same way.
Therefore, the EPA has adopted an
approach under which it reviews
infrastructure SIP submissions against
the list of elements in section 110(a)(2),
but only to the extent each element
applies for that particular NAAQS.
Historically, the EPA has elected to
use guidance documents to make
recommendations to states for
infrastructure SIPs, in some cases
conveying needed interpretations on
newly arising issues and in some cases
conveying interpretations that have
already been developed and applied to
individual SIP submissions for
particular elements.11 The EPA most
recently issued guidance for
infrastructure SIPs on September 13,
2013 (2013 Guidance).12 The EPA
developed this document to provide
states with up-to-date guidance for
infrastructure SIPs for any new or
revised NAAQS. Within this guidance,
the EPA describes the duty of states to
make infrastructure SIP submissions to
meet basic structural SIP requirements
within three years of promulgation of a
new or revised NAAQS. The EPA also
made recommendations about many
specific subsections of section 110(a)(2)
that are relevant in the context of
infrastructure SIP submissions.13 The
guidance also discusses the
substantively important issues that are
germane to certain subsections of
section 110(a)(2). Significantly, the EPA
11 The EPA notes, however, that nothing in the
CAA requires the EPA to provide guidance or to
promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and
requires the submission of infrastructure SIP
submissions, regardless of whether or not the EPA
provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in
order to assist states, as appropriate.
12 ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2),’’
Memorandum from Stephen D. Page, September 13,
2013.
13 The EPA’s September 13, 2013, guidance did
not make recommendations with respect to
infrastructure SIP submissions to address section
110(a)(2)(D)(i)(I). The EPA issued the guidance
shortly after the U.S. Supreme Court agreed to
review the D.C. Circuit decision in EME Homer
City, 696 F.3d7 (D.C. Cir. 2012) which had
interpreted the requirements of section
110(a)(2)(D)(i)(I). In light of the uncertainty created
by ongoing litigation, the EPA elected not to
provide additional guidance on the requirements of
section 110(a)(2)(D)(i)(I) at that time. As the
guidance is neither binding nor required by statute,
whether the EPA elects to provide guidance on a
particular section has no impact on a state’s CAA
obligations.
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interprets sections 110(a)(1) and
110(a)(2) such that infrastructure SIP
submissions need to address certain
issues and need not address others.
Accordingly, the EPA reviews each
infrastructure SIP submission for
compliance with the applicable
statutory provisions of section 110(a)(2),
as appropriate.
As an example, section 110(a)(2)(E)(ii)
is a required element of section
110(a)(2) for infrastructure SIP
submissions. Under this element, a state
must meet the substantive requirements
of section 128, which pertain to state
boards that approve permits or
enforcement orders and heads of
executive agencies with similar powers.
Thus, the EPA reviews infrastructure
SIP submissions to ensure that the
state’s SIP appropriately addresses the
requirements of section 110(a)(2)(E)(ii)
and section 128. The 2013 Guidance
explains the EPA’s interpretation that
there may be a variety of ways by which
states can appropriately address these
substantive statutory requirements,
depending on the structure of an
individual state’s permitting or
enforcement program (e.g., whether
permits and enforcement orders are
approved by a multi-member board or
by a head of an executive agency).
However they are addressed by the
state, the substantive requirements of
section 128 are necessarily included in
the EPA’s evaluation of infrastructure
SIP submissions because section
110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section
128.
As another example, the EPA’s review
of infrastructure SIP submissions with
respect to the PSD program
requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the
structural PSD program requirements
contained in part C and the EPA’s PSD
regulations. Structural PSD program
requirements include provisions
necessary for the PSD program to
address all regulated sources and NSR
pollutants, including greenhouse gases.
By contrast, structural PSD program
requirements do not include provisions
that are not required under the EPA’s
regulations at 40 CFR 51.166 but are
merely available as an option for the
state, such as the option to provide
grandfathering of complete permit
applications with respect to the 2012
PM2.5 NAAQS. Accordingly, the latter
optional provisions are types of
provisions the EPA considers irrelevant
in the context of an infrastructure SIP
action.
For other section 110(a)(2) elements,
however, the EPA’s review of a state’s
infrastructure SIP submission focuses
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on assuring that the state’s SIP meets
basic structural requirements. For
example, section 110(a)(2)(C) includes,
inter alia, the requirement that states
have a program to regulate minor new
sources. Thus, the EPA evaluates
whether the state has an EPA-approved
minor new source review program and
whether the program addresses the
pollutants relevant to that NAAQS. In
the context of acting on an
infrastructure SIP submission, however,
the EPA does not think it is necessary
to conduct a review of each and every
provision of a state’s existing minor
source program (i.e., already in the
existing SIP) for compliance with the
requirements of the CAA and EPA’s
regulations that pertain to such
programs.
With respect to certain other issues,
the EPA does not believe that an action
on a state’s infrastructure SIP
submission is necessarily the
appropriate type of action in which to
address possible deficiencies in a state’s
existing SIP. These issues include: (i)
Existing provisions related to excess
emissions from sources during periods
of startup, shutdown, or malfunction
that may be contrary to the CAA and the
EPA’s policies addressing such excess
emissions (‘‘SSM’’); (ii) existing
provisions related to ‘‘director’s
variance’’ or ‘‘director’s discretion’’ that
may be contrary to the CAA because
they purport to allow revisions to SIPapproved emissions limits while
limiting public process or not requiring
further approval by the EPA; and (iii)
existing provisions for PSD programs
that may be inconsistent with current
requirements of the EPA’s ‘‘Final NSR
Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007). Thus, the EPA
believes it may approve an
infrastructure SIP submission without
scrutinizing the totality of the existing
SIP for such potentially deficient
provisions and may approve the
submission even if it is aware of such
existing provisions.14 It is important to
note that the EPA’s approval of a state’s
infrastructure SIP submission should
not be construed as explicit or implicit
re-approval of any existing potentially
deficient provisions that relate to the
three specific issues just described.
The EPA’s approach to review of
infrastructure SIP submissions is to
14 By contrast, the EPA notes that if a state were
to include a new provision in an infrastructure SIP
submission that contained a legal deficiency, such
as a new exemption for excess emissions during
SSM events, then the EPA would need to evaluate
that provision for compliance against the rubric of
applicable CAA requirements in the context of the
action on the infrastructure SIP.
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identify the CAA requirements that are
logically applicable to that submission.
The EPA believes that this approach to
the review of a particular infrastructure
SIP submission is appropriate, because
it would not be reasonable to read the
general requirements of section
110(a)(1) and the list of elements in
110(a)(2) as requiring review of each
and every provision of a state’s existing
SIP against all requirements in the CAA
and the EPA regulations 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. These provisions,
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 the EPA
evaluates adequacy of the infrastructure
SIP submission. The EPA believes that
a better approach is for states and the
EPA to focus attention on those
elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP
revision due to the promulgation of a
new or revised NAAQS or other factors.
For example, the EPA’s 2013
Guidance gives simpler
recommendations with respect to
carbon monoxide than other NAAQS
pollutants to meet the visibility
requirements of section
110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As
a result, an infrastructure SIP
submission for any future new or
revised NAAQS for carbon monoxide
need only state this fact in order to
address the visibility prong of section
110(a)(2)(D)(i)(II).
Finally, the EPA believes that its
approach with respect to infrastructure
SIP requirements is based on a
reasonable reading of sections 110(a)(1)
and 110(a)(2) because the CAA provides
other avenues and mechanisms to
address specific substantive deficiencies
in existing SIPs. These other statutory
tools allow the EPA to take
appropriately tailored action, depending
upon the nature and severity of the
alleged SIP deficiency. Section 110(k)(5)
authorizes the EPA to issue a ‘‘SIP call’’
whenever the EPA determines that a
state’s SIP is substantially inadequate to
attain or maintain the NAAQS, to
mitigate interstate transport, or to
otherwise comply with the CAA.15
15 For example, the EPA issued a SIP call to Utah
to address specific existing SIP deficiencies related
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Section 110(k)(6) authorizes the EPA to
correct errors in past actions, such as
past approvals of SIP submissions.16
Significantly, the EPA’s determination
that an action on a state’s infrastructure
SIP submission is not the appropriate
time and place to address all potential
existing SIP deficiencies does not
preclude the EPA’s subsequent reliance
on provisions in section 110(a)(2) as
part of the basis for action to correct
those deficiencies 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 an infrastructure SIP
submission, the EPA believes that
section 110(a)(2)(A) may be among the
statutory bases that EPA relies upon in
the course of addressing such deficiency
in a subsequent action.17
IV. Analysis of the State Submittals
110(a)(2)(A): Emission Limits and Other
Control Measures
CAA section 110(a)(2)(A) requires
SIPs to include enforceable emission
limits and other control measures,
means or techniques (including
economic incentives such as fees,
marketable permits, and auctions of
emissions rights), as well as schedules
and timetables for compliance, as may
be necessary or appropriate to meet the
applicable requirements of the CAA.
State submittals: The Idaho submittals
cite an overview of the State air quality
laws and regulations including portions
of the Idaho Environmental Protection
and Health Act (EPHA) and the Rules
for the Control of Air Pollution located
to the treatment of excess emissions during SSM
events. See ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revisions,’’ 74 FR 21639
(April 18, 2011).
16 The EPA has used 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 (December 30, 2010). The EPA has
previously used its authority under CAA section
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 See, e.g., the EPA’s disapproval of 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 at 42344 (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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in the Idaho Administrative Procedures
Act (IDAPA) 58.01.01. Relevant laws
cited include Idaho Code Section 39–
105(3)(d) which provides Idaho
Department of Environmental Quality
(DEQ) authority to supervise and
administer a system to safeguard air
quality, and Idaho Code Section 39–115
which provides Idaho DEQ with specific
authority for the issuance of air quality
permits. Specific regulations referenced
in Idaho’s submittals include IDAPA
58.01.01.107.03 (incorporation by
reference of federal regulations), IDAPA
58.01.01.200–228 (permit to construct
rules), IDAPA 58.01.01.400–410
(operating permit rules), IDAPA
58.01.01.600–623 (control of open
burning), IDAPA 58.01.01.650–651
(control of fugitive emissions), IDAPA
58.01.01.625 (visible emissions
requirements and testing), and IDAPA
58.01.01.460–461 (banking of
emissions). 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 the 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 Idaho DEQ
with the authority to require a Tier II
source operating 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.
EPA analysis: Idaho’s SIP meets the
requirements of section 110(a)(2)(A) for
the 1997 PM2.5 NAAQS, 2006 PM2.5
NAAQS, and 2008 ozone NAAQS,
subject to the following clarifications.
First, this infrastructure element does
not require the submittal of regulations
or emission limitations developed
specifically for attaining these
particulate matter and ozone standards.
Furthermore, the State has no areas
designated nonattainment for the 1997
PM2.5 NAAQS or the 2008 ozone
NAAQS. The State has one area
designated nonattainment for the 2006
PM2.5 NAAQS (portion of Franklin
County), however, the EPA does not
consider SIP requirements triggered by
the nonattainment area mandates in part
D, title I of the CAA to be governed by
the submission deadline of section
110(a)(1). Regulations and other control
measures for purposes of attainment
planning under part D, title I of the CAA
are due on a different schedule than
infrastructure SIPs.
Idaho’s SIP incorporates by reference
a number of Federal regulations,
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including the Federal NAAQS at 40 CFR
part 50, revised as of July 1, 2012. The
EPA most recently approved the
incorporation by reference of these
regulations at IDAPA 58.01.01.107
‘‘Incorporations by Reference’’ on March
3, 2014 (79 FR 11711). Idaho has
incorporated by reference the 1997
PM2.5, 2006 PM2.5, and 2008 ozone
NAAQS into Idaho regulations.
Idaho generally regulates emissions of
PM2.5, PM2.5 precursors, and ozone
precursors through its SIP-approved
NSR permitting programs, in addition to
operating permit regulations, and rules
for the control of open burning, fugitive
dust, activities that generate visible
emissions, and emissions banking. The
EPA most recently approved revisions
to Idaho’s major and minor NSR
permitting programs on March 3, 2014
(79 FR 11711). Idaho’s NSR rules
incorporate by reference the Federal
non-attainment NSR regulations and
Federal PSD regulations at IDAPA
58.01.204 and IDAPA 58.01.01.205
respectively. Idaho’s SIP regulates
nitrogen oxides (NOX) and sulfur
dioxide (SO2) as precursors to PM2.5,
and NOX and volatile organic carbons
(VOCs) as precursors to ozone.
In addition to Idaho’s NSR permitting
regulations, Idaho’s Tier II operating
permit regulations at IDAPA
58.01.01.400–410 require that to obtain
an operating permit, the applicant must
demonstrate the source will not cause or
significantly contribute to a violation of
any ambient air quality standard.
IDAPA 58.01.01.401.03 provides Idaho
DEQ with authority to require a Tier II
source operating permit if Idaho DEQ
determines emission rate reductions are
necessary to attain or maintain any
ambient air quality standard or
applicable PSD increment.
In addition to the permitting rules
described above, Idaho has promulgated
rules to limit and control emissions of
particulate matter resulting from open
burning (IDAPA 58.01.01.600–623),
fugitive dust (IDAPA 58.01.01.650–651),
and activities that generate visible
emissions (IDAPA 58.01.01.625). These
rules include emission limits, control
measures, and opacity limits. Idaho has
also promulgated rules addressing
banking of emissions at IDAPA
58.01.01.460–461. Based on the above
analysis, we are proposing to approve
the Idaho SIP as meeting the
requirements of CAA section
110(a)(2)(A) for the 1997 PM2.5, 2006
PM2.5, and 2008 ozone NAAQS.
We note that, in this action, we are
not proposing to approve or disapprove
any existing State provisions with
regard to excess emissions during
startup, shutdown, or malfunction
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(SSM) of operations at a facility. The
EPA believes that a number of states
may have SSM provisions that are
contrary to the CAA and existing EPA
guidance and the EPA has proposed
action to address such state
regulations.18
In addition, we are not proposing to
approve or disapprove any existing
State rules with regard to director’s
discretion or variance provisions. The
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 EPA plans to take action
in the future to address such state
regulations. In the meantime, we
encourage 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
CAA 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.
State submittals: The Idaho submittals
reference 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 51,
Requirements for Preparation,
Adoption, and Submittal of
Implementation Plans; 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. The State
submittals indicate that these rules give
the State authority to implement
18 For further description of the EPA’s SSM
Policy, see, e.g., a memorandum dated September
20, 1999, titled, ‘‘State Implementation Plans:
Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown,’’ from
Steven A. Herman, Assistant Administrator for
Enforcement and Compliance Assurance, and
Robert Perciasepe, Assistant Administrator for Air
and Radiation. Also, the EPA issued a proposed
action on February 12, 2013, titled ‘‘State
Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy;
and SIP Calls To Amend Provisions Applying to
Excess Emissions During Periods of Startup,
Shutdown and Malfunction.’’ This rulemaking
responds to a petition for rulemaking filed by the
Sierra Club that concerns SSM provisions in 39
states’ SIPs (February 22, 2013, 78 FR 12460).
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ambient air monitoring surveillance
systems in accordance with the
requirements of referenced sections of
the CAA.
The Idaho submittals state that Idaho
DEQ collects and reports to the EPA
ambient air quality data for PM2.5, PM10,
NOX, carbon monoxide, ozone and SO2.
These data are reviewed, verified and
validated prior to being submitted to the
EPA’s Air Quality System no later than
90 days from the end of the calendar
quarter from which the data was
collected. On July 1 of each year, 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 the requirements of 40 CFR part 58
was submitted by Idaho on January 15,
1980 (40 CFR 52.670) and approved by
the EPA on July 28, 1982. This air
quality monitoring plan has been most
recently updated and approved by the
EPA on March 10, 2014.19 The plan
includes, among other things, the
locations for the particulate matter and
ozone monitoring networks. Idaho
makes the plan available for public
review on the Idaho DEQ 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. Based on the
foregoing, we are proposing to approve
the Idaho SIP as meeting the
requirements of CAA section
110(a)(2)(B) for the 1997 PM2.5, 2006
PM2.5, and 2008 ozone NAAQS.
110(a)(2)(C): Program for Enforcement
of Control Measures
CAA 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.
State submittals: The Idaho submittals
refer to Idaho Code Section 39–108
which provides Idaho DEQ with
authority to enforce both
administratively and civilly the Idaho
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
submittals also refer to laws and
regulations requiring stationary source
19 Idaho Air Monitoring Network Plan Approval
Letter, dated March 10, 2014.
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compliance with the NAAQS discussed
in their response to CAA section
110(a)(2)(A) above.
The Idaho submittals also refer to the
annual incorporation by reference (IBR)
rulemaking which updates Idaho’s SIP
to include Federal changes to the
NAAQS and PSD program. The Idaho
submittals state that the annual IBR
updates along with IDAPA sections
200–288 (permitting requirements for
new and modified sources) and 575–587
(air quality standards and area
classification) provide Idaho DEQ with
authority to implement the PSD and
NSR program.
EPA analysis: With regard to the
requirement to have a program
providing for enforcement of all SIP
measures, we are proposing to find that
the State code provisions described
above provide Idaho DEQ with 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. Therefore, we are
proposing to approve the Idaho SIP as
meeting the requirements of CAA
section 110(a)(2)(C) related to
enforcement for the 1997 PM2.5, 2006
PM2.5, and 2008 ozone NAAQS.
To generally meet the requirements of
CAA section 110(a)(2)(C) with regard to
the regulation of construction of new or
modified stationary sources, a state is
required to have PSD, nonattainment
NSR, and minor NSR permitting
programs adequate to implement the
1997 PM2.5, 2006 PM2.5 and 2008 ozone
NAAQS. Idaho has no designated
nonattainment areas for the 1997 PM2.5
and 2008 ozone NAAQS, and one
nonattainment area for the 2006 PM2.5
NAAQS (portion of Franklin County).
However as explained above, we are not
in this action evaluating nonattainment
related provisions, such as the
nonattainment NSR program required
by part D, title I of the CAA.
We most recently approved revisions
to Idaho’s PSD program on March 3,
2014, updating the Idaho PSD program
for purposes of regulating fine
particulate matter implementation in
attainment and unclassifiable areas (79
FR 11711). Previously on July 17, 2012,
we approved a revision to the Idaho SIP
to provide authority to implement the
PSD permitting program with respect to
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greenhouse gas emissions (77 FR
41916). Idaho’s PSD program
implements the 1997 PM2.5, 2006 PM2.5
and 2008 ozone NAAQS and
incorporates by reference the Federal
PSD program requirements at 40 CFR
52.21 as of July 1, 2012. As a result, we
are proposing to approve the Idaho SIP
as meeting the requirements of CAA
section 110(a)(2)(C) with regard to PSD
for the 1997 PM2.5, 2006 PM2.5 and 2008
ozone NAAQS.
The EPA notes that on January 4,
2013, the U.S. Court of Appeals in the
District of Columbia, in Natural
Resources Defense Council v. EPA, 706
F.3d 428 (D.C. Cir.), issued a judgment
that remanded two of the EPA’s rules
implementing the 1997 PM2.5 NAAQS,
including the ‘‘Implementation of New
Source Review (NSR) Program for
Particulate Matter Less Than 2.5
Micrometers (PM2.5),’’ (73 FR 28321,
May 16, 2008) (2008 PM2.5 NSR
Implementation Rule). The Court
ordered the EPA to ‘‘repromulgate these
rules pursuant to subpart 4 consistent
with this opinion.’’Id. at 437. Subpart 4
of part D, title I of the CAA establishes
additional provisions for particulate
matter nonattainment areas. The 2008
PM2.5 NSR Implementation Rule
addressed by the Court’s decision
promulgated NSR requirements for
implementation of PM2.5 in both
nonattainment areas (nonattainment
NSR) and attainment/unclassifiable
areas (PSD). As the requirements of
subpart 4 only pertain to nonattainment
areas, the EPA does not consider the
portions of the 2008 PM2.5 NSR
Implementation Rule that address
requirements for PM2.5 attainment and
unclassifiable areas to be affected by the
Court’s opinion. Moreover, the EPA
does not anticipate the need to revise
any PSD requirements promulgated in
the 2008 PM2.5 NSR Implementation
Rule in order to comply with the Court’s
decision. Accordingly, the EPA’s
proposed approval of elements
110(a)(2)(C), (D)(i)(II), and (J), with
respect to the PSD requirements, does
not conflict with the Court’s opinion.
The EPA interprets the CAA section
110(a)(1) and (2) infrastructure
submittals due three years after
adoption or revision of a NAAQS to
exclude nonattainment area
requirements, including requirements
associated with a nonattainment NSR
program. Instead, these elements are
typically referred to as nonattainment
SIP or attainment plan elements, which
are due by the dates statutorily
prescribed under subparts 2 through 5
under part D, extending as far as ten
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years following designations for some
elements.
In addition, on January 22, 2013, the
U.S. Court of Appeals for the District of
Columbia, in Sierra Club v. EPA, 703
F.3d 458 (D.C. Cir. 2013), issued a
judgment that, inter alia, vacated the
provisions adding the PM2.5 Significant
Monitoring Concentration (SMC) to the
Federal regulations, at 40 CFR
51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c),
that were promulgated as part of the
‘‘Prevention of Significant Deterioration
(PSD) for Particulate Matter Less Than
2.5 Micrometers (PM2.5)—Increments,
Significant Impact Levels (SILs) and
Significant Monitoring Concentration
(SMC); Final Rule,’’ (75 FR 64864,
October 10, 2010) (2010 PSD PM2.5
Implementation Rule). In its decision,
the Court held that the EPA did not
have the authority to use SMCs to
exempt permit applicants from the
statutory requirement in section
165(e)(2) of the CAA that ambient
monitoring data for PM2.5 be included in
all PSD permit applications. Thus,
although the PM2.5 SMC was not a
required element of a state’s PSD
program, were a state PSD program that
contains such a provision to use that
provision to issue new permits without
requiring ambient PM2.5 monitoring
data, such application of the vacated
SMC would be inconsistent with the
Court’s opinion and the requirements of
section 165(e)(2) of the CAA. This
decision also, on the EPA’s request,
vacated and remanded to the EPA for
further consideration the portions of the
2010 PSD PM2.5 Implementation Rule
that revised 40 CFR 51.166 and 40 CFR
52.21 related to Significant Impact
Levels (SILs) for PM2.5. The EPA
requested this vacatur and remand of
two of the three provisions in the EPA
regulations that contain SILs for PM2.5,
because the wording of these two SIL
provisions (40 CFR 51.166(k)(2) and 40
CFR 52.21(k)(2)) is inconsistent with the
explanation of when and how SILs
should be used by permitting authorities
that we provided in the preamble to the
Federal Register publication when we
promulgated these provisions. The third
SIL provision (40 CFR 51.165(b)(2)) was
not vacated and remains in effect. The
Court’s decision does not affect the PSD
increments for PM2.5 promulgated as
part of the 2010 PSD PM2.5
Implementation Rule.
Because of the vacatur of the EPA
regulations as they relate to the PM2.5
SILs and SMC, in our previous action on
March 3, 2014, we disapproved Idaho’s
incorporation by reference of the
vacated provisions into the Idaho SIP
(79 FR 11711). This proposed action
would take no additional action with
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respect to those SIP provisions that were
previously disapproved. In this action
we are proposing to approve the Idaho
SIP as meeting the requirements of CAA
section 110(a)(2)(C), (D)(i)(II) and (J) as
those elements relate to a
comprehensive PSD program. The EPA
recently amended its regulations to
remove the vacated PM2.5 SILs and SMC
provisions from the PSD regulations
(December 9, 2013, 78 FR 73698). The
EPA will initiate a separate rulemaking
in the future regarding the PM2.5 SILs
that will address the Court’s remand. In
the meantime, the EPA is advising states
to begin preparations to remove the
vacated provisions from state PSD
regulations.
With regard to the minor NSR
requirement of this element, we have
determined that Idaho’s minor NSR
program regulates direct PM2.5 and NOX
and SO2 as precursors. In addition, we
have determined that Idaho’s minor
NSR program regulates NOX and VOCs
as precursors to ozone. Based on the
foregoing, we are proposing to approve
the Idaho SIP as meeting the
requirements of CAA section
110(a)(2)(C) for the 1997 PM2.5, 2006
PM2.5, and 2008 ozone NAAQS.
110(a)(2)(D): Interstate Transport
CAA section 110(a)(2)(D)(i) requires
state 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 (CAA section 110(a)(2)(D)(i)(I)).
Further, this section requires state SIPs
to include provisions prohibiting any
source or other type of emissions
activity in one state from interfering
with measures required to prevent
significant deterioration (PSD) of air
quality, or from interfering with
measures required to protect visibility
(i.e. measures to address regional haze)
in any state (CAA section
110(a)(2)(D)(i)(II)).
As noted above, this action does not
address the requirements of CAA
section 110(a)(2)(D)(i) for the 1997 PM2.5
NAAQS which we previously approved
on November 26, 2010 (75 FR 72705)
and June 22, 2011 (76 FR 36329). This
action also does not address the
requirements of CAA section
110(a)(2)(D)(i)(I) for the 2006 PM2.5 and
2008 ozone NAAQS, which we will
address in a future action. In this
proposal, we are proposing to act on
Idaho’s submission relating to
110(a)(2)(D)(i)(II) and 110(a)(2)(D)(ii).
State submittals: On June 28, 2010,
Idaho DEQ submitted the Idaho
Interstate Transport State
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Implementation Plan for the 1997 and
2006 PM2.5 NAAQS, and the 1997 and
2008 ozone NAAQS (Interstate
Transport SIP). Idaho’s Interstate
Transport SIP addressed
110(a)(2)(D)(i)(II) by referencing Idaho’s
SIP-approved PSD program, revisions to
which were approved on November 26,
2010 and Idaho’s Regional Haze SIP
submitted to the EPA on October 25,
2010.
EPA analysis: The EPA believes that
the CAA section 110(a)(2)(D)(i)(II) PSD
sub-element may be met by the State’s
confirmation in the submittal that new
major sources and major modifications
in the State are subject to a SIPapproved PSD program. We most
recently approved revisions to Idaho’s
PSD program on March 3, 2014,
updating the Idaho PSD for purposes of
fine particulate matter NAAQS
implementation in attainment and
unclassifiable areas (79 FR 11711). On
July 17, 2012, we approved a revision to
the Idaho SIP to provide authority to
implement the PSD permitting program
with respect to greenhouse gas
emissions (77 FR 41916). Idaho’s PSD
program implements the 2006 PM2.5 and
2008 ozone NAAQS and incorporates
the Federal PSD program regulations at
40 CFR 52.21 by reference. Idaho’s SIPapproved PSD program regulates NOX
and VOCs as precursors to ozone. As
discussed above in section 110(a)(2)(C),
Idaho’s Federally-approved PSD
program reflects PM2.5 regulatory
requirements the EPA has established
for major NSR in attainment and
unclassifiable areas. We believe that our
proposed approval of element
110(a)(2)(D)(i)(II) is not affected by
recent court vacaturs of Federal PSD
implementing regulations. Please see
our discussion at section 110(a)(2)(C).
Therefore, we are proposing to approve
the Idaho SIP as meeting the
requirements of CAA section
110(a)(2)(D)(i)(II) with regards to PSD
for the 2006 PM2.5 and 2008 ozone
NAAQS.
The EPA believes that, for the CAA
section 110(a)(2)(D)(i)(II) visibility subelement, the requirement could be
satisfied by an approved SIP addressing
regional haze. The EPA’s reasoning is
that the development of the regional
haze SIPs was intended to occur in a
collaborative environment among the
states, and that through this process
states would coordinate on emissions
controls to protect visibility on an
interstate basis.
The Idaho submittal references the
Idaho Regional Haze SIP, submitted to
the EPA on October 25, 2010, which
addresses visibility impacts across states
within the region. On June 9, 2011, we
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approved a SIP revision which provides
Idaho DEQ authority to address regional
haze and to implement best available
retrofit technology (BART) requirements
(76 FR 33651). Subsequently on June 22,
2011, we approved portions of the Idaho
Regional Haze SIP, including the
requirements for BART (76 FR 36329).
Finally, on November 8, 2012, we
approved the remainder of the Idaho
Regional Haze SIP, including those
portions that address CAA provisions
that require states to set Reasonable
Progress Goals for their Class I areas,
and to develop a Long Term Strategy to
achieve these goals (77 FR 66929).
The EPA is proposing to find that, as
a result of the prior approval of the
Idaho Regional Haze SIP, including
BART requirements, the Idaho SIP
contains adequate provisions to address
110(a)(2)(D)(i)(II) visibility requirements
with respect to the 2006 PM2.5 and 2008
ozone NAAQS. Therefore, we are
proposing to approve the Idaho SIP as
meeting the requirements of CAA
section 110(a)(2)(D)(i)(II) as it applies to
visibility for the 2006 PM2.5 and 2008
ozone NAAQS.
Interstate and international transport
provisions: CAA section 110(a)(2)(D)(ii)
requires SIPs to include provisions
insuring compliance with the applicable
requirements of CAA sections 126 and
115 (relating to interstate and
international pollution abatement).
Specifically, CAA section 126(a)
requires new or modified major sources
to notify neighboring states of potential
impacts from the source.
EPA analysis: We most recently
approved revisions to Idaho’s PSD
program on March 3, 2014, updating the
program for purposes of fine particulate
matter NAAQS implementation in
attainment and unclassifiable areas (79
FR 11711). On July 17, 2012, the EPA
approved a revision to the Idaho SIP to
provide authority to implement the PSD
permitting program with respect to
greenhouse gas emissions (77 FR
41916). Idaho’s PSD program
implements the 1997 PM2.5, 2006 PM2.5,
and 2008 ozone NAAQS and
incorporates the Federal PSD program
regulations at 40 CFR 52.21 by reference
as of July 1, 2012. IDAPA 58.01.01.209
(procedures for issuing permits)
includes required procedures for issuing
permits for new sources, including
procedures for public processes, and
notice to appropriate Federal, state and
local agencies, consistent with the
requirements of the Federal PSD
program. Idaho issues notice of its draft
permits and neighboring states
consistently receive copies of those
drafts. In addition, Idaho has no
pending obligations under CAA section
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115 or 126(b) of the CAA. Therefore, we
are proposing to approve the Idaho SIP
as meeting the requirements of CAA
section 110(a)(2)(D)(ii) for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone
NAAQS.
110(a)(2)(E): Adequate Resources
CAA 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) requirements that the state comply
with the requirements respecting state
boards under 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.
State submittals: The Idaho submittals
refer to specific Idaho statute including:
Idaho Code 39–105, which lays out the
powers and duties of Idaho DEQ’s
director and gives the director the
power to utilize any Federal aid and
grants; Idaho Code Section 39–106,
which gives the Idaho DEQ Director
authority to hire personnel to carry out
duties of the department; Idaho Code
39–107, which establishes the State’s
Board of Environmental Quality; and
Idaho Code Section 39–107B, which
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. The Idaho
submittals also cite agreements with
local agencies on nonattainment plans.
On certain nonattainment plans, Idaho
DEQ has entered into agreements for
local implementation and enforcement
of measures such as wood stove and
street sweeping ordinances. When Idaho
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 Idaho DEQ could issue
the resident a Tier II source operating
permit and enforce the ordinance terms
included in the permit.
EPA analysis: We are proposing to
find that the above-referenced
provisions provide Idaho DEQ with
adequate authority to carry out SIP
obligations with respect to the 1997
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16719
PM2.5, 2006 PM2.5, and 2008 ozone
NAAQS as required by CAA section
110(a)(2)(E)(i). With respect to subelement (E)(ii), on October 24, 2013 we
approved a revision to the Idaho SIP for
purposes of meeting CAA section 128
and CAA section 110(a)(2)(E)(ii) for
criteria pollutants (78 FR 63394). We are
also proposing to find that the State 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 PM2.5, 2006 PM2.5, and 2008
ozone NAAQS as required by CAA
section 110(a)(2)(E)(iii). Therefore we
are proposing to approve the Idaho SIP
as meeting the requirements of CAA
sections 110(a)(2)(E) for the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS.
110(a)(2)(F): Stationary Source
Monitoring System
CAA 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.
State submittals: The Idaho submittals
state that Idaho 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. The submittals reference the
following regulatory provisions: IDAPA
58.01.01.121, which outlines the
authority of Idaho DEQ to require
monitoring, recordkeeping and periodic
reporting related to source compliance;
IDAPA 58.01.01.122, which provides
Idaho DEQ authority to issue
information orders and orders to
conduct source emissions monitoring,
record keeping, reporting and other
requirements; and IDAPA 58.01.01.157,
which outlines 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.
EPA analysis: The provisions cited by
the Idaho submittals establish
compliance requirements for sources
subject to major and minor source
permitting to monitor emissions, keep
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and report records, and collect ambient
air monitoring data. The provisions
cited also provide Idaho DEQ authority
to issue orders to collect additional
information as needed for Idaho DEQ to
ascertain compliance. In addition,
IDAPA 58.01.01.211 (conditions for
permits to construct) and 58.01.01.405
(conditions for tier II operating permits)
provide Idaho DEQ authority to
establish permit conditions requiring
instrumentation to monitor and record
emissions data, and instrumentation for
ambient monitoring to determine the
effect emissions from the stationary
source or facility may have, or are
having, on the air quality in any area
affected by the stationary source or
facility. This information is made
available to the public through public
processes outlined at IDAPA
58.01.01.209 (procedures for issuing
permits) for permits to construct and
58.01.01.404 (procedures for issuing
permits) for Tier II operating permits.
Additionally, Idaho is required to
submit emissions data to the EPA for
purposes of the National Emissions
Inventory (NEI). The NEI is the EPA’s
central repository for air emissions data.
The EPA published the Air Emissions
Reporting Rule (AERR) on December 5,
2008, which modified the requirements
for collecting and reporting air
emissions data (73 FR 76539). All states
are required to submit a comprehensive
emissions inventory every three years
and report emissions for certain larger
sources annually through the EPA’s
online Emissions Inventory System.
States report emissions data for the six
criteria pollutants and their associated
precursors—nitrogen oxides, sulfur
dioxide, ammonia, lead, carbon
monoxide, particulate matter, and
volatile organic compounds. Many
states also voluntarily report emissions
of hazardous air pollutants. The EPA
compiles the emissions data,
supplementing it where necessary, and
releases it to the general public through
the Web site https://www.epa.gov/ttn/
chief/eiinformation.html.
Based on the analysis above, we are
proposing to approve the Idaho SIP as
meeting the requirements of CAA
section 110(a)(2)(F) for the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS.
emergency order authority comparable
to that in CAA section 303. In addition,
the submittals cite the Idaho 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.’’
EPA analysis: CAA section 303
provides authority to the EPA
Administrator to restrain any source
from causing or contributing to
emissions which present an ‘‘imminent
and substantial endangerment to public
health or welfare, or the environment.’’
We find that Idaho Code Section 112
provides the Idaho DEQ Director with
comparable authority.
The Idaho air pollution emergency
rules at IDAPA 58.01.01.550–562 were
previously approved by the EPA on
January 16, 2003 (68 FR 2217). Idaho’s
air pollution emergency rules include
PM2.5 and ozone, establish stages of
episode criteria, provide for public
announcement whenever any episode
stage has been determined to exist, and
specify emission control actions to be
taken at each episode stage, consistent
with the EPA emergency episode SIP
requirements set forth at 40 CFR part 51
subpart H (prevention of air pollution
emergency episodes, sections 51.150
through 51.153) for particulate matter
and ozone. Therefore, we are proposing
to approve the Idaho SIP as meeting the
requirements of CAA section
110(a)(2)(G) for the 1997 PM2.5, 2006
PM2.5, and 2008 ozone NAAQS.
110(a)(2)(H): Future SIP Revisions
CAA 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
110(a)(2)(G): Emergency Episodes
requirements under the CAA.
State submittals: The Idaho submittals
CAA section 110(a)(2)(G) requires
states to provide for authority to address refer to Idaho Code Section 39–105(3)(d)
which provides Idaho DEQ with the
activities causing imminent and
broad authority to revise rules, in
substantial endangerment to public
accordance with Idaho administrative
health, including adequate contingency
procedures for rulemaking, to meet
plans to implement the emergency
national ambient air quality standards
episode provisions in their SIPs.
State submittals: The Idaho submittals as incorporated by reference in IDAPA
cite Idaho Code 39–112, which provides 58.01.01.107. Idaho also refers to their
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submittal for CAA section 110(a)(2)(A)
above.
EPA analysis: We find that Idaho has
adequate authority to regularly update
the SIP to take into account revisions of
the NAAQS and other related regulatory
changes. In practice, Idaho regularly
updates the SIP for purposes of NAAQS
revisions and other regulatory changes.
We most recently approved revisions to
the Idaho SIP on March 3, 2014 (79 FR
11711), April 3, 2013 (78 FR 20001), and
March 19, 2013 (78 FR 16790). Idaho
has incorporated by reference the 1997
PM2.5, 2006 PM2.5, and 2008 ozone
NAAQS into the Idaho SIP. Therefore,
we are proposing to approve the Idaho
SIP as meeting the requirements of CAA
section 110(a)(2)(H) for the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS.
110(a)(2)(I): Nonattainment Area Plan
Revision Under Part D
There are two elements identified in
CAA section 110(a)(2) not governed by
the three year submission deadline of
CAA section 110(a)(1) because SIPs
incorporating necessary local
nonattainment area controls are not due
within three 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 and the various pollutant specific
subparts 2–5 of part D. These
requirements are: (i) Submissions
required by CAA 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 CAA 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 CAA section 110(a)(2)(C) with
respect to nonattainment NSR or CAA
section 110(a)(2)(I).
110(a)(2)(J): Consultation with
government officials: CAA 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 CAA section 121. CAA 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,
CAA section 110(a)(2)(J) requires states
to meet applicable requirements of part
C, title I of the CAA related to
prevention of significant deterioration
and visibility protection.
State submittals: The Idaho submittals
refer to laws and regulations relating to
public participation processes for SIP
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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.
The submittals refer 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’s
submittals reference the Idaho
transportation conformity rules, and
states that Idaho DEQ generally
incorporates by reference the Federal
PSD and nonattainment new source
review programs.
EPA analysis: The Idaho 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. The 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
November 26, 2010 (75 FR 47530) and
January 16, 2003 (68 FR 2217)
respectively. We approved Idaho’s rules
that define transportation conformity
consultation on April 12, 2001 (66 FR
18873). In practice, Idaho DEQ routinely
coordinates with local governments,
states, Federal Land Managers and other
stakeholders on air quality issues
including permitting action,
transportation conformity, and regional
haze. Therefore, we are proposing to
find that the Idaho SIP meets the
requirements of CAA section 110(a)(2)(J)
for consultation with government
officials for the 1997 PM2.5, 2006 PM2.5,
and 2008 ozone NAAQS.
CAA section 110(a)(2)(J) also requires
the public be notified if NAAQS are
exceeded in an area and to enhance
public awareness of measures that can
be taken to prevent exceedances. The
EPA calculates an air quality index for
five major air pollutants regulated by
the Clean Air Act: Ground-level ozone,
particulate matter, carbon monoxide,
sulfur dioxide, and nitrogen dioxide.
The EPA AIRNOW program provides
this air quality index daily to the public,
including health effects and actions
members of the public can take to
reduce air pollution. Idaho actively
participates and submits information to
the AIRNOW program, in addition to
the EPA’s Enviroflash Air Quality Alert
program. Idaho DEQ also provides the
daily air quality index to the public on
the DEQ Web site at https://
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well as measures that can be taken to
prevent exceedances. Therefore, we are
proposing to find that the Idaho SIP
meets the requirements of CAA section
110(a)(2)(J) for public notification for
the 1997 PM2.5, 2006 PM2.5, and 2008
ozone NAAQS.
Turning to the requirement in CAA
section 110(a)(2)(J) that the SIP meet the
applicable requirements of part C, title
I of the CAA, we have evaluated this
requirement in the context of CAA
section 110(a)(2)(C) with respect to
permitting. The EPA most recently
approved revisions to the Idaho’s PSD
program on March 3, 2014, updating the
PSD program for purposes of fine
particulate matter NAAQS
implementation in attainment and
unclassifiable areas (79 FR 11711). On
July 17, 2012, we approved a revision to
the Idaho SIP to provide authority to
implement the PSD permitting program
with respect to greenhouse gas
emissions (77 FR 41916). Idaho’s PSD
program implements the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS
and incorporates by reference the
Federal PSD program regulations at 40
CFR 52.21 as of July 1, 2012. We believe
that our proposed approval of element
110(a)(2)(J) is not affected by recent
court vacaturs of EPA PSD
implementing regulations. (Please see
our discussion at section 110(a)(2)(C).)
Therefore, we are proposing to approve
the Idaho SIP as meeting the
requirements of CAA section 110(a)(2)(J)
with respect to PSD for the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS.
With regard to the applicable
requirements for visibility protection,
the EPA recognizes that states are
subject to visibility and regional haze
program requirements under part C, title
I 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 applicable requirement
relating to visibility triggered under
CAA section 110(a)(2)(J) when a new
NAAQS becomes effective. Based on the
above analysis, we are proposing to
approve the Idaho SIP as meeting the
requirements of CAA section 110(a)(2)(J)
for the 1997 PM2.5, 2006 PM2.5, and 2008
ozone NAAQS.
110(a)(2)(K): Air Quality and Modeling/
Data
CAA 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
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16721
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.
State submittals: The Idaho submittals
state that 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 Part
51, Appendix W (Guidelines on Air
Quality Models) which is incorporated
by reference at IDAPA 58.01.01.107.
EPA analysis: We most recently
approved revisions to IDAPA
58.01.01.107 (Incorporations by
Reference) on March 3, 2014 (79 FR
11711). This rule incorporates by
reference the following EPA regulations:
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 revised as of July 1,
2012. Idaho has incorporated by
reference the 1997 PM2.5, 2006 PM2.5,
and 2008 ozone NAAQS into State
regulations. Idaho models estimates of
ambient concentrations based on 40
CFR part 51 Appendix W (Guidelines on
Air Quality Models). To cite an example
of a SIP supported by substantial
modeling, the EPA approved the PM10
Maintenance Plan for Northern Ada
County/Boise Idaho Area on October 27,
2003 (68 FR 61106). Therefore, we are
proposing to approve the Idaho SIP as
meeting the requirements of CAA
section 110(a)(2)(K) for the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS.
110(a)(2)(L): Permitting Fees
CAA 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.
State submittals: The Idaho submittals
state 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
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Federal Register / Vol. 79, No. 58 / Wednesday, March 26, 2014 / Proposed Rules
emcdonald on DSK67QTVN1PROD with PROPOSALS
by the Administrator’s approval of a fee
program under title V. The EPA
approved Idaho’s title V permitting
program on October 4, 2001 (66 FR
50574) with an effective data of
November 5, 2001.
EPA analysis: We approved Idaho’s
title V 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 Idaho can use to
ensure that Idaho DEQ has sufficient
resources to support the air program,
consistent with the requirements of the
SIP. Before the EPA can grant full
approval, a state must demonstrate the
ability to collect adequate fees. Idaho’s
title V program included a
demonstration the State will collect a
fee from title V sources above the
presumptive minimum in accordance
with 40 CFR 70.9(b)(2)(i). In addition,
Idaho regulations require fees for
purposes of major and minor NSR
permitting, as specified in IDAPA
58.01.01.224–227. Therefore, we are
proposing to conclude that Idaho has
satisfied the requirements of CAA
section 110(a)(2)(L) for the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS.
consultation on April 12, 2001 (66 FR
18873). Therefore, we are proposing to
approve the Idaho SIP as meeting the
requirements of CAA section
110(a)(2)(M) for the 1997 PM2.5, 2006
PM2.5, and 2008 ozone NAAQS.
V. Proposed Action
The EPA is proposing to find that the
Idaho SIP meets the following CAA
section 110(a)(2) infrastructure elements
for the 1997 PM2.5, 2006 PM2.5, and 2008
ozone NAAQS: (A), (B), (C), (D)(ii), (E),
(F), (G), (H), (J), (K), (L), and (M). We are
also proposing to find that the Idaho SIP
meets the requirements of CAA section
110(a)(2)(D)(i)(II) as it applies to
prevention of significant deterioration
and visibility for the 2006 PM2.5 and
2008 ozone NAAQS.
VI. 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, the
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
110(a)(2)(M): Consultation/Participation action merely approves the state’s law
as meeting Federal requirements and
by Affected Local Entities
does not impose additional
CAA section 110(a)(2)(M) requires
requirements beyond those imposed by
states to provide for consultation and
the state’s law. For that reason, this
participation in SIP development by
proposed action:
local political subdivisions affected by
• Is not a ‘‘significant regulatory
the SIP.
State submittals: The Idaho submittals action’’ subject to review by the Office
of Management and Budget under
state that consultation with a variety of
different state and local organizations is Executive Order 12866 (58 FR 51735,
October 4, 1993);
a regular part of Idaho DEQ’s process of
• Does not impose an information
developing SIP revisions. The
collection burden under the provisions
requirements for plan preparation and
of the Paperwork Reduction Act (44
public process include 40 CFR part 51,
U.S.C. 3501 et seq.);
incorporated by reference at IDAPA
• Is certified as not having a
58.01.01.107. Idaho also references rules
significant economic impact on a
cited under CAA section 110(a)(2)(J)
substantial number of small entities
above.
under the Regulatory Flexibility Act (5
EPA analysis: The EPA most recently
U.S.C. 601 et seq.);
approved IDAPA 58.01.01.107
• Does not contain any unfunded
(incorporations by reference), which
mandate or significantly or uniquely
incorporates by reference 40 CFR part
affect small governments, as described
51, Requirements for Preparation,
in the Unfunded Mandates Reform Act
Adoption, and Submittal of
Implementation Plans, on March 3, 2014 of 1995 (Pub. L. 104–4);
• Does not have Federalism
(79 FR 11711). In addition, we most
implications as specified in Executive
recently approved Idaho permitting
Order 13132 (64 FR 43255, August 10,
rules at IDAPA 58.01.01.209 and
1999);
58.01.01.404, which provide
• Is not an economically significant
opportunity and procedures for public
regulatory action based on health or
comment and notice to appropriate
safety risks subject to Executive Order
Federal, state and local agencies, on
13045 (62 FR 19885, April 23, 1997);
January 16, 2003 (68 FR 2217) and
November 26, 2010 (75 FR 47530).
• Is not a significant regulatory action
Finally, we approved the Idaho rules
subject to Executive Order 13211 (66 FR
that define transportation conformity
28355, May 22, 2001);
VerDate Mar<15>2010
16:14 Mar 25, 2014
Jkt 232001
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• Is not subject to the requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
this action does not involve technical
standards; and
• Does not provide the EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the State, and the 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, Incorporation by
reference, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and
recordkeeping requirements, Sulfur
oxides, and Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 13, 2014.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2014–06664 Filed 3–25–14; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2012–0183, FRL–9908–67–
Region 10]
Approval and Promulgation of
Implementation Plans; Idaho:
Infrastructure Requirements for the
2008 Lead National Ambient Air Quality
Standards
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
the February 14, 2012, State
Implementation Plan (SIP) submittal
from Idaho demonstrating that the SIP
meets the infrastructure requirements of
the Clean Air Act (CAA) for the National
Ambient Air Quality Standards
(NAAQS) promulgated for lead (Pb) on
October 15, 2008. The CAA requires that
each state, after a new or revised
NAAQS is promulgated, review their
SUMMARY:
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[Federal Register Volume 79, Number 58 (Wednesday, March 26, 2014)]
[Proposed Rules]
[Pages 16711-16722]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-06664]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2010-0715, FRL-9908-68-Region 10]
Approval and Promulgation of Implementation Plans; Idaho:
Infrastructure Requirements for the 1997 and 2006 Fine Particulate
Matter and 2008 Ozone National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to find
that the Idaho SIP meets the infrastructure requirements of the Clean
Air Act (CAA) for the National Ambient Air Quality Standards (NAAQS)
promulgated for fine particulate matter (PM2.5) on July 18,
1997 and October 17, 2006, and for ozone on March 12, 2008. The EPA is
also proposing to find that the Idaho SIP meets the interstate
transport requirements of the CAA related to prevention of significant
deterioration and visibility for the 2006 PM2.5 and 2008
ozone NAAQS.
DATES: Comments must be received on or before April 25, 2014.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2010-0715, 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 Mailroom, 9th floor,
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-
2010-0715. The 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 the
disclosure of which 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 the EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to the 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, the 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 the EPA cannot read your comment due
to technical difficulties and cannot contact you for clarification, the
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
the disclosure of which 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
[[Page 16712]]
Region 10, 1200 Sixth Avenue, Seattle, WA 98101.
FOR FURTHER INFORMATION CONTACT: Kristin Hall at (206) 553-6357,
hall.kristin@epa.gov, or the above EPA, Region 10 address.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, it is intended to refer to the EPA.
Information is organized as follows:
Table of Contents
I. Background
II. CAA Sections 110(a)(1) and (2) Infrastructure Elements
III. EPA Approach To Review of Infrastructure SIP Submittals
IV. Analysis of the State Submittals
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background
On July 18, 1997, the EPA promulgated a new 24-hour and a new
annual NAAQS for fine particulate matter (PM2.5) (62 FR
38652). More recently, on October 17, 2006, the EPA revised the
standards for fine particulate matter, tightening the 24-hour
PM2.5 standard from 65 micrograms per cubic meter ([mu]/
m\3\) to 35 [micro]/m\3\, and retaining the current annual
PM2.5 standard at 15 [mu]/m\3\ (71 FR 61144). Subsequently,
on March 12, 2008, the EPA revised the levels of the primary and
secondary 8-hour ozone standards to 0.075 parts per million (73 FR
16436).
The CAA requires that states submit SIPs meeting the requirements
of CAA sections 110(a)(1) and (2) within three years after promulgation
of a new or revised standard. CAA 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. To help states meet this statutory requirement, the EPA
issued guidance to states. On October 2, 2007, the EPA issued guidance
to address infrastructure SIP elements for the 1997 ozone and 1997
PM2.5 NAAQS.\1\ Subsequently, on September 25, 2009, the EPA
issued guidance to address SIP infrastructure elements for the 2006 24-
hour PM2.5 NAAQS.\2\ Finally, on September 13, 2013, the EPA
issued guidance to address infrastructure SIP elements for the 2008
ozone NAAQS.\3\ As noted in the guidance documents, to the extent an
existing SIP already meets the CAA section 110(a)(2) requirements,
states may certify that fact via a letter to the EPA.
---------------------------------------------------------------------------
\1\ 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.
\2\ 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 2006 24-
hour Fine Particle (PM2.5) National Ambient Air Quality
Standards (NAAQS).'' Memorandum to Regional Air Division Directors,
Regions I-X, September 25, 2009.
\3\ Stephen D. Page, Director, Office of Air Quality Planning
and Standards. ``Guidance on Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2).'' Memorandum to EPA Air Division Directors, Regions 1-10,
September 13, 2013.
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The State of Idaho made multiple submittals for purposes of meeting
the requirements of CAA sections 110(a)(1) and (2). On September 15,
2008, Idaho submitted a certification that Idaho's SIP meets the
infrastructure requirements for the 1997 8-hour ozone and 1997
PM2.5 NAAQS. On June 28, 2010, Idaho submitted the Idaho
Interstate Transport State Implementation Plan, in addition to an
updated certification that Idaho's SIP meets the infrastructure
requirements for the 1997 and 2006 PM2.5 NAAQS, and the 1997
and 2008 ozone NAAQS. Finally, on August 10, 2011, Idaho submitted a
certification confirming how Idaho's SIP meets the infrastructure
requirements for the 2006 PM2.5 NAAQS.
We note that this action does not address the infrastructure
requirements of the CAA with respect to the 1997 ozone NAAQS which were
previously approved on July 17, 2012 (77 FR 41916). This action also
does not address the interstate transport requirements of certain
portions of CAA section 110(a)(2)(D)(i). The EPA previously approved
Idaho's submittal to address CAA section 110(a)(2)(D)(i) for the 1997
ozone and 1997 PM2.5 NAAQS on November 26, 2010 (75 FR
72705) and June 22, 2011 (76 FR 36329). Finally, we will address the
interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for
the 2006 PM2.5 and 2008 ozone NAAQS in a separate action.
II. CAA Sections 110(a)(1) and (2) Infrastructure Elements
CAA section 110(a)(1) provides the procedural and timing
requirements for SIP submissions after a new or revised NAAQS is
promulgated. CAA 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.\4\
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\4\ In accordance with the panel of the U.S. Court of Appeals
for the D.C. Circuit opinion, the EPA at this time is not treating
the 110(a)(2)(D)(i)(I) SIP submission from the State of Idaho as a
required SIP submission. See EME Homer City Generation, L.P. v. EPA,
696 F .3d 7 (D.C. Cir. 2012), cert. granted, 2013 U.S. Lexis 4801
(2013). However, even if the submission is not considered to be
``required,'' the EPA must act on the 110(a)(2)(D)(i)(I) SIP
submission from Idaho because section 110(k)(2) of the CAA requires
the EPA to act on all SIP submissions. Unless the EME Homer City
decision is reversed or otherwise modified by the Supreme Court,
which granted review of the case on June 24, 2013, and held oral
argument on December 10, 2013, states are not required to submit
110(a)(2)(D)(i)(I) SIPs until the EPA has quantified their
obligations under that section. The portions of the SIP submission
relating to 110(a)(2)(D)(i)(II) and 110(a)(2)(D)(ii), in contrast,
are required. In this notice, we are proposing to act on Idaho's
submission relating to 110(a)(2)(D)(i)(II) and 110(a)(2)(D)(ii). We
will address Idaho's submission relating to 110(a)(2)(D)(i)(I) in a
separate action.
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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.
The EPA's guidance clarified that two elements identified in CAA
section 110(a)(2) are not governed by the three year submission
deadline of CAA section 110(a)(1) because SIPs incorporating necessary
local nonattainment area controls are not due within three years after
promulgation of a new or revised NAAQS, but rather due at the time the
nonattainment area plan requirements are due pursuant to CAA section
172 and the various pollutant specific subparts 2-5 of part D. These
requirements are: (i) Submissions required by CAA 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 CAA
section 110(a)(2)(I)
[[Page 16713]]
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 CAA section 110(a)(2)(C) with
respect to nonattainment new source review (NSR) or CAA section
110(a)(2)(I). Furthermore, the EPA interprets the CAA section
110(a)(2)(J) provision on visibility as not being triggered by a new
NAAQS because the visibility requirements in part C, title I of the CAA
are not changed by a new NAAQS.
III. EPA Approach To Review of Infrastructure SIP Submittals
The EPA is acting upon the SIP submission from Idaho that addresses
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2)
for the 1997 PM2.5, 2006 PM2.5, and 2008 ozone
NAAQS. The requirement for states to make a SIP submission of this type
arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1),
states must make SIP submissions ``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 these SIP submissions are to provide for the
``implementation, maintenance, and enforcement'' of such NAAQS. The
statute directly imposes on states the duty to make these SIP
submissions, and the requirement to make the submissions is not
conditioned upon the EPA's taking any action other than promulgating a
new or revised NAAQS. Section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address.
The EPA has historically referred to these SIP submissions made for
the purpose of satisfying the requirements of CAA sections 110(a)(1)
and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, the EPA uses the
term to distinguish this particular type of SIP submission from
submissions that are intended to satisfy other SIP requirements under
the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP''
submissions to address the nonattainment planning requirements of part
D of title I of the CAA, ``regional haze SIP'' submissions required by
the EPA rule to address the visibility protection requirements of CAA
section 169A, and nonattainment new source review permit program
submissions to address the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. 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 program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\5\ The EPA therefore
believes that while the timing requirement in section 110(a)(1) is
unambiguous, some of the other statutory provisions are ambiguous. In
particular, the EPA believes that the list of required elements for
infrastructure SIP submissions provided in section 110(a)(2) contains
ambiguities concerning what is required for inclusion in an
infrastructure SIP submission.
---------------------------------------------------------------------------
\5\ For example: Section 110(a)(2)(E)(i) 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 SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
---------------------------------------------------------------------------
The following examples of ambiguities illustrate the need for the
EPA to interpret some section 110(a)(1) and section 110(a)(2)
requirements with respect to infrastructure SIP submissions for a given
new or revised NAAQS. One example of ambiguity is that section
110(a)(2) requires that ``each'' SIP submission must meet the list of
requirements therein, while the EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of title I of the
CAA, which specifically address nonattainment SIP requirements.\6\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires the EPA to establish a schedule for submission of such plans
for certain pollutants when the Administrator promulgates the
designation of an area as nonattainment, and section 107(d)(1)(B)
allows up to two years, or in some cases three years, for such
designations to be promulgated.\7\ This ambiguity illustrates that
rather than apply all the stated requirements of section 110(a)(2) in a
strict literal sense, the EPA must determine which provisions of
section 110(a)(2) are applicable for a particular infrastructure SIP
submission.
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\6\ 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, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\7\ The EPA notes that this ambiguity within section 110(a)(2)
is heightened by the fact that various subparts of part D set
specific dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
---------------------------------------------------------------------------
Another example of ambiguity within sections 110(a)(1) and
110(a)(2) with respect to infrastructure SIPs pertains to whether
states must meet all of the infrastructure SIP requirements in a single
SIP submission, and whether the EPA must act upon such SIP submission
in a single action. Although section 110(a)(1) directs states to submit
``a plan'' to meet these requirements, the EPA interprets the CAA to
allow states to make multiple SIP submissions separately addressing
infrastructure SIP elements for the same NAAQS. If states elect to make
such multiple SIP submissions to meet the infrastructure SIP
requirements, the EPA can elect to act on such submissions either
individually or in a larger combined action.\8\ Similarly, the EPA
interprets the CAA to allow it to take action on the individual parts
of one larger, comprehensive infrastructure SIP submission for a given
NAAQS without concurrent action on the entire submission. For example,
the EPA has sometimes elected to act at different times on various
elements and sub-elements of the same infrastructure SIP submission.\9\
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\8\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (the EPA's final action approving the
structural PSD elements of the New Mexico SIP submitted by the State
separately to meet the requirements of the EPA's 2008
PM2.5 NSR rule), and ``Approval and Promulgation of Air
Quality Implementation Plans; New Mexico; Infrastructure and
Interstate Transport Requirements for the 2006 PM2.5
NAAQS,'' (78 FR 4337) (January 22, 2013) (the EPA's final action on
the infrastructure SIP for the 2006 PM2.5 NAAQS).
\9\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to the EPA demonstrating that the State meets the
requirements of sections 110(a)(1) and (2). The EPA proposed action
for infrastructure SIP elements (C) and (J) on January 23, 2012 (77
FR 3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), the
EPA took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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[[Page 16714]]
Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise
with respect to infrastructure SIP submission requirements for
different NAAQS. Thus, the 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. The states' attendant
infrastructure SIP submissions for each NAAQS therefore could be
different. For example, the monitoring requirements that a state might
need to meet in its infrastructure SIP submission for purposes of
section 110(a)(2)(B) could be very different for different pollutants,
for example because the content and scope of a state's infrastructure
SIP submission to meet this element might be very different for an
entirely new NAAQS than for a minor revision to an existing NAAQS.\10\
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\10\ 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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The EPA notes that interpretation of section 110(a)(2) is also
necessary when the EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, the
EPA also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submissions required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the PSD program required in part C of title I of the CAA,
because PSD does not apply to a pollutant for which an area is
designated nonattainment and thus subject to part D planning
requirements. As this example illustrates, each type of SIP submission
may implicate some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), the EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, the EPA assumes that Congress could not
have intended that each and every SIP submission, regardless of the
NAAQS in question or the history of SIP development for the relevant
pollutant, would meet each of the requirements, or meet each of them in
the same way. Therefore, the EPA has adopted an approach under which it
reviews infrastructure SIP submissions against the list of elements in
section 110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, the EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\11\ The
EPA most recently issued guidance for infrastructure SIPs on September
13, 2013 (2013 Guidance).\12\ The EPA developed this document to
provide states with up-to-date guidance for infrastructure SIPs for any
new or revised NAAQS. Within this guidance, the EPA describes the duty
of states to make infrastructure SIP submissions to meet basic
structural SIP requirements within three years of promulgation of a new
or revised NAAQS. The EPA also made recommendations about many specific
subsections of section 110(a)(2) that are relevant in the context of
infrastructure SIP submissions.\13\ The guidance also discusses the
substantively important issues that are germane to certain subsections
of section 110(a)(2). Significantly, the EPA interprets sections
110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need
to address certain issues and need not address others. Accordingly, the
EPA reviews each infrastructure SIP submission for compliance with the
applicable statutory provisions of section 110(a)(2), as appropriate.
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\11\ The EPA notes, however, that nothing in the CAA requires
the EPA to provide guidance or to promulgate regulations for
infrastructure SIP submissions. The CAA directly applies to states
and requires the submission of infrastructure SIP submissions,
regardless of whether or not the EPA provides guidance or
regulations pertaining to such submissions. EPA elects to issue such
guidance in order to assist states, as appropriate.
\12\ ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
\13\ The EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). The EPA issued the guidance
shortly after the U.S. Supreme Court agreed to review the D.C.
Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which
had interpreted the requirements of section 110(a)(2)(D)(i)(I). In
light of the uncertainty created by ongoing litigation, the EPA
elected not to provide additional guidance on the requirements of
section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither
binding nor required by statute, whether the EPA elects to provide
guidance on a particular section has no impact on a state's CAA
obligations.
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As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, the
EPA reviews infrastructure SIP submissions to ensure that the state's
SIP appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains the EPA's
interpretation that there may be a variety of ways by which states can
appropriately address these substantive statutory requirements,
depending on the structure of an individual state's permitting or
enforcement program (e.g., whether permits and enforcement orders are
approved by a multi-member board or by a head of an executive agency).
However they are addressed by the state, the substantive requirements
of section 128 are necessarily included in the EPA's evaluation of
infrastructure SIP submissions because section 110(a)(2)(E)(ii)
explicitly requires that the state satisfy the provisions of section
128.
As another example, the EPA's review of infrastructure SIP
submissions with respect to the PSD program requirements in sections
110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD
program requirements contained in part C and the EPA's PSD regulations.
Structural PSD program requirements include provisions necessary for
the PSD program to address all regulated sources and NSR pollutants,
including greenhouse gases. By contrast, structural PSD program
requirements do not include provisions that are not required under the
EPA's regulations at 40 CFR 51.166 but are merely available as an
option for the state, such as the option to provide grandfathering of
complete permit applications with respect to the 2012 PM2.5
NAAQS. Accordingly, the latter optional provisions are types of
provisions the EPA considers irrelevant in the context of an
infrastructure SIP action.
For other section 110(a)(2) elements, however, the EPA's review of
a state's infrastructure SIP submission focuses
[[Page 16715]]
on assuring that the state's SIP meets basic structural requirements.
For example, section 110(a)(2)(C) includes, inter alia, the requirement
that states have a program to regulate minor new sources. Thus, the EPA
evaluates whether the state has an EPA-approved minor new source review
program and whether the program addresses the pollutants relevant to
that NAAQS. In the context of acting on an infrastructure SIP
submission, however, the EPA does not think it is necessary to conduct
a review of each and every provision of a state's existing minor source
program (i.e., already in the existing SIP) for compliance with the
requirements of the CAA and EPA's regulations that pertain to such
programs.
With respect to certain other issues, the EPA does not believe that
an action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction that may be contrary to the CAA and the EPA's
policies addressing such excess emissions (``SSM''); (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by the EPA; and (iii)
existing provisions for PSD programs that may be inconsistent with
current requirements of the EPA's ``Final NSR Improvement Rule,'' 67 FR
80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007).
Thus, the EPA believes it may approve an infrastructure SIP submission
without scrutinizing the totality of the existing SIP for such
potentially deficient provisions and may approve the submission even if
it is aware of such existing provisions.\14\ It is important to note
that the EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
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\14\ By contrast, the EPA notes that if a state were to include
a new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then the EPA would need to evaluate that
provision for compliance against the rubric of applicable CAA
requirements in the context of the action on the infrastructure SIP.
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The EPA's approach to review of infrastructure SIP submissions is
to identify the CAA requirements that are logically applicable to that
submission. The EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in 110(a)(2) as requiring review of
each and every provision of a state's existing SIP against all
requirements in the CAA and the EPA regulations 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. These provisions, 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 the EPA evaluates adequacy of the infrastructure
SIP submission. The EPA believes that a better approach is for states
and the EPA to focus attention on those elements of section 110(a)(2)
of the CAA most likely to warrant a specific SIP revision due to the
promulgation of a new or revised NAAQS or other factors.
For example, the EPA's 2013 Guidance gives simpler recommendations
with respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
Finally, the EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes the EPA to issue a ``SIP
call'' whenever the EPA determines that a state's SIP is substantially
inadequate to attain or maintain the NAAQS, to mitigate interstate
transport, or to otherwise comply with the CAA.\15\ Section 110(k)(6)
authorizes the EPA to correct errors in past actions, such as past
approvals of SIP submissions.\16\ Significantly, the EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude the EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies 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 an infrastructure SIP submission, the EPA believes that section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\17\
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\15\ For example, the EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
\16\ The EPA has used 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 (December 30, 2010). The EPA has
previously used its authority under CAA section 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\ See, e.g., the EPA's disapproval of 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 at 42344 (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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IV. Analysis of the State Submittals
110(a)(2)(A): Emission Limits and Other Control Measures
CAA section 110(a)(2)(A) requires SIPs to include enforceable
emission limits and other control measures, means or techniques
(including economic incentives such as fees, marketable permits, and
auctions of emissions rights), as well as schedules and timetables for
compliance, as may be necessary or appropriate to meet the applicable
requirements of the CAA.
State submittals: The Idaho submittals cite an overview of the
State air quality laws and regulations including portions of the Idaho
Environmental Protection and Health Act (EPHA) and the Rules for the
Control of Air Pollution located
[[Page 16716]]
in the Idaho Administrative Procedures Act (IDAPA) 58.01.01. Relevant
laws cited include Idaho Code Section 39-105(3)(d) which provides Idaho
Department of Environmental Quality (DEQ) authority to supervise and
administer a system to safeguard air quality, and Idaho Code Section
39-115 which provides Idaho DEQ with specific authority for the
issuance of air quality permits. Specific regulations referenced in
Idaho's submittals include IDAPA 58.01.01.107.03 (incorporation by
reference of federal regulations), IDAPA 58.01.01.200-228 (permit to
construct rules), IDAPA 58.01.01.400-410 (operating permit rules),
IDAPA 58.01.01.600-623 (control of open burning), IDAPA 58.01.01.650-
651 (control of fugitive emissions), IDAPA 58.01.01.625 (visible
emissions requirements and testing), and IDAPA 58.01.01.460-461
(banking of emissions). 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 the 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 Idaho DEQ with the authority to require a Tier
II source operating 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.
EPA analysis: Idaho's SIP meets the requirements of section
110(a)(2)(A) for the 1997 PM2.5 NAAQS, 2006 PM2.5
NAAQS, and 2008 ozone NAAQS, subject to the following clarifications.
First, this infrastructure element does not require the submittal of
regulations or emission limitations developed specifically for
attaining these particulate matter and ozone standards. Furthermore,
the State has no areas designated nonattainment for the 1997
PM2.5 NAAQS or the 2008 ozone NAAQS. The State has one area
designated nonattainment for the 2006 PM2.5 NAAQS (portion
of Franklin County), however, the EPA does not consider SIP
requirements triggered by the nonattainment area mandates in part D,
title I of the CAA to be governed by the submission deadline of section
110(a)(1). Regulations and other control measures for purposes of
attainment planning under part D, title I of the CAA are due on a
different schedule than infrastructure SIPs.
Idaho's SIP incorporates by reference a number of Federal
regulations, including the Federal NAAQS at 40 CFR part 50, revised as
of July 1, 2012. The EPA most recently approved the incorporation by
reference of these regulations at IDAPA 58.01.01.107 ``Incorporations
by Reference'' on March 3, 2014 (79 FR 11711). Idaho has incorporated
by reference the 1997 PM2.5, 2006 PM2.5, and 2008
ozone NAAQS into Idaho regulations.
Idaho generally regulates emissions of PM2.5,
PM2.5 precursors, and ozone precursors through its SIP-
approved NSR permitting programs, in addition to operating permit
regulations, and rules for the control of open burning, fugitive dust,
activities that generate visible emissions, and emissions banking. The
EPA most recently approved revisions to Idaho's major and minor NSR
permitting programs on March 3, 2014 (79 FR 11711). Idaho's NSR rules
incorporate by reference the Federal non-attainment NSR regulations and
Federal PSD regulations at IDAPA 58.01.204 and IDAPA 58.01.01.205
respectively. Idaho's SIP regulates nitrogen oxides (NOX)
and sulfur dioxide (SO2) as precursors to PM2.5,
and NOX and volatile organic carbons (VOCs) as precursors to
ozone.
In addition to Idaho's NSR permitting regulations, Idaho's Tier II
operating permit regulations at IDAPA 58.01.01.400-410 require that to
obtain an operating permit, the applicant must demonstrate the source
will not cause or significantly contribute to a violation of any
ambient air quality standard. IDAPA 58.01.01.401.03 provides Idaho DEQ
with authority to require a Tier II source operating permit if Idaho
DEQ determines emission rate reductions are necessary to attain or
maintain any ambient air quality standard or applicable PSD increment.
In addition to the permitting rules described above, Idaho has
promulgated rules to limit and control emissions of particulate matter
resulting from open burning (IDAPA 58.01.01.600-623), fugitive dust
(IDAPA 58.01.01.650-651), and activities that generate visible
emissions (IDAPA 58.01.01.625). These rules include emission limits,
control measures, and opacity limits. Idaho has also promulgated rules
addressing banking of emissions at IDAPA 58.01.01.460-461. Based on the
above analysis, we are proposing to approve the Idaho SIP as meeting
the requirements of CAA section 110(a)(2)(A) for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
We note that, in this action, we are 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. The EPA believes that a number of states may have SSM
provisions that are contrary to the CAA and existing EPA guidance and
the EPA has proposed action to address such state regulations.\18\
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\18\ For further description of the EPA's SSM Policy, see, e.g.,
a memorandum dated September 20, 1999, titled, ``State
Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown,'' from Steven A. Herman,
Assistant Administrator for Enforcement and Compliance Assurance,
and Robert Perciasepe, Assistant Administrator for Air and
Radiation. Also, the EPA issued a proposed action on February 12,
2013, titled ``State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown and Malfunction.'' This rulemaking responds to a
petition for rulemaking filed by the Sierra Club that concerns SSM
provisions in 39 states' SIPs (February 22, 2013, 78 FR 12460).
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In addition, we are not proposing to approve or disapprove any
existing State rules with regard to director's discretion or variance
provisions. The 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 EPA plans to take action in the
future to address such state regulations. In the meantime, we encourage
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
CAA 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.
State submittals: The Idaho submittals reference 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 51, Requirements for Preparation,
Adoption, and Submittal of Implementation Plans; 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. The State
submittals indicate that these rules give the State authority to
implement
[[Page 16717]]
ambient air monitoring surveillance systems in accordance with the
requirements of referenced sections of the CAA.
The Idaho submittals state that Idaho DEQ collects and reports to
the EPA ambient air quality data for PM2.5, PM10,
NOX, carbon monoxide, ozone and SO2. These data
are reviewed, verified and validated prior to being submitted to the
EPA's Air Quality System no later than 90 days from the end of the
calendar quarter from which the data was collected. On July 1 of each
year, 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 the requirements of 40 CFR part 58 was submitted by Idaho on
January 15, 1980 (40 CFR 52.670) and approved by the EPA on July 28,
1982. This air quality monitoring plan has been most recently updated
and approved by the EPA on March 10, 2014.\19\ The plan includes, among
other things, the locations for the particulate matter and ozone
monitoring networks. Idaho makes the plan available for public review
on the Idaho DEQ 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. Based on the
foregoing, we are proposing to approve the Idaho SIP as meeting the
requirements of CAA section 110(a)(2)(B) for the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS.
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\19\ Idaho Air Monitoring Network Plan Approval Letter, dated
March 10, 2014.
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110(a)(2)(C): Program for Enforcement of Control Measures
CAA 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.
State submittals: The Idaho submittals refer to Idaho Code Section
39-108 which provides Idaho DEQ with authority to enforce both
administratively and civilly the Idaho 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 submittals also refer to laws and regulations
requiring stationary source compliance with the NAAQS discussed in
their response to CAA section 110(a)(2)(A) above.
The Idaho submittals also refer to the annual incorporation by
reference (IBR) rulemaking which updates Idaho's SIP to include Federal
changes to the NAAQS and PSD program. The Idaho submittals state that
the annual IBR updates along with IDAPA sections 200-288 (permitting
requirements for new and modified sources) and 575-587 (air quality
standards and area classification) provide Idaho DEQ with authority to
implement the PSD and NSR program.
EPA analysis: With regard to the requirement to have a program
providing for enforcement of all SIP measures, we are proposing to find
that the State code provisions described above provide Idaho DEQ with
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. Therefore, we are proposing to approve the Idaho
SIP as meeting the requirements of CAA section 110(a)(2)(C) related to
enforcement for the 1997 PM2.5, 2006 PM2.5, and
2008 ozone NAAQS.
To generally meet the requirements of CAA section 110(a)(2)(C) with
regard to the regulation of construction of new or modified stationary
sources, a state is required to have PSD, nonattainment NSR, and minor
NSR permitting programs adequate to implement the 1997
PM2.5, 2006 PM2.5 and 2008 ozone NAAQS. Idaho has
no designated nonattainment areas for the 1997 PM2.5 and
2008 ozone NAAQS, and one nonattainment area for the 2006
PM2.5 NAAQS (portion of Franklin County). However as
explained above, we are not in this action evaluating nonattainment
related provisions, such as the nonattainment NSR program required by
part D, title I of the CAA.
We most recently approved revisions to Idaho's PSD program on March
3, 2014, updating the Idaho PSD program for purposes of regulating fine
particulate matter implementation in attainment and unclassifiable
areas (79 FR 11711). Previously on July 17, 2012, we approved a
revision to the Idaho SIP to provide authority to implement the PSD
permitting program with respect to greenhouse gas emissions (77 FR
41916). Idaho's PSD program implements the 1997 PM2.5, 2006
PM2.5 and 2008 ozone NAAQS and incorporates by reference the
Federal PSD program requirements at 40 CFR 52.21 as of July 1, 2012. As
a result, we are proposing to approve the Idaho SIP as meeting the
requirements of CAA section 110(a)(2)(C) with regard to PSD for the
1997 PM2.5, 2006 PM2.5 and 2008 ozone NAAQS.
The EPA notes that on January 4, 2013, the U.S. Court of Appeals in
the District of Columbia, in Natural Resources Defense Council v. EPA,
706 F.3d 428 (D.C. Cir.), issued a judgment that remanded two of the
EPA's rules implementing the 1997 PM2.5 NAAQS, including the
``Implementation of New Source Review (NSR) Program for Particulate
Matter Less Than 2.5 Micrometers (PM2.5),'' (73 FR 28321,
May 16, 2008) (2008 PM2.5 NSR Implementation Rule). The
Court ordered the EPA to ``repromulgate these rules pursuant to subpart
4 consistent with this opinion.''Id. at 437. Subpart 4 of part D, title
I of the CAA establishes additional provisions for particulate matter
nonattainment areas. The 2008 PM2.5 NSR Implementation Rule
addressed by the Court's decision promulgated NSR requirements for
implementation of PM2.5 in both nonattainment areas
(nonattainment NSR) and attainment/unclassifiable areas (PSD). As the
requirements of subpart 4 only pertain to nonattainment areas, the EPA
does not consider the portions of the 2008 PM2.5 NSR
Implementation Rule that address requirements for PM2.5
attainment and unclassifiable areas to be affected by the Court's
opinion. Moreover, the EPA does not anticipate the need to revise any
PSD requirements promulgated in the 2008 PM2.5 NSR
Implementation Rule in order to comply with the Court's decision.
Accordingly, the EPA's proposed approval of elements 110(a)(2)(C),
(D)(i)(II), and (J), with respect to the PSD requirements, does not
conflict with the Court's opinion. The EPA interprets the CAA section
110(a)(1) and (2) infrastructure submittals due three years after
adoption or revision of a NAAQS to exclude nonattainment area
requirements, including requirements associated with a nonattainment
NSR program. Instead, these elements are typically referred to as
nonattainment SIP or attainment plan elements, which are due by the
dates statutorily prescribed under subparts 2 through 5 under part D,
extending as far as ten
[[Page 16718]]
years following designations for some elements.
In addition, on January 22, 2013, the U.S. Court of Appeals for the
District of Columbia, in Sierra Club v. EPA, 703 F.3d 458 (D.C. Cir.
2013), issued a judgment that, inter alia, vacated the provisions
adding the PM2.5 Significant Monitoring Concentration (SMC)
to the Federal regulations, at 40 CFR 51.166(i)(5)(i)(c) and
52.21(i)(5)(i)(c), that were promulgated as part of the ``Prevention of
Significant Deterioration (PSD) for Particulate Matter Less Than 2.5
Micrometers (PM2.5)--Increments, Significant Impact Levels
(SILs) and Significant Monitoring Concentration (SMC); Final Rule,''
(75 FR 64864, October 10, 2010) (2010 PSD PM2.5
Implementation Rule). In its decision, the Court held that the EPA did
not have the authority to use SMCs to exempt permit applicants from the
statutory requirement in section 165(e)(2) of the CAA that ambient
monitoring data for PM2.5 be included in all PSD permit
applications. Thus, although the PM2.5 SMC was not a
required element of a state's PSD program, were a state PSD program
that contains such a provision to use that provision to issue new
permits without requiring ambient PM2.5 monitoring data,
such application of the vacated SMC would be inconsistent with the
Court's opinion and the requirements of section 165(e)(2) of the CAA.
This decision also, on the EPA's request, vacated and remanded to the
EPA for further consideration the portions of the 2010 PSD
PM2.5 Implementation Rule that revised 40 CFR 51.166 and 40
CFR 52.21 related to Significant Impact Levels (SILs) for
PM2.5. The EPA requested this vacatur and remand of two of
the three provisions in the EPA regulations that contain SILs for
PM2.5, because the wording of these two SIL provisions (40
CFR 51.166(k)(2) and 40 CFR 52.21(k)(2)) is inconsistent with the
explanation of when and how SILs should be used by permitting
authorities that we provided in the preamble to the Federal Register
publication when we promulgated these provisions. The third SIL
provision (40 CFR 51.165(b)(2)) was not vacated and remains in effect.
The Court's decision does not affect the PSD increments for
PM2.5 promulgated as part of the 2010 PSD PM2.5
Implementation Rule.
Because of the vacatur of the EPA regulations as they relate to the
PM2.5 SILs and SMC, in our previous action on March 3, 2014,
we disapproved Idaho's incorporation by reference of the vacated
provisions into the Idaho SIP (79 FR 11711). This proposed action would
take no additional action with respect to those SIP provisions that
were previously disapproved. In this action we are proposing to approve
the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(C),
(D)(i)(II) and (J) as those elements relate to a comprehensive PSD
program. The EPA recently amended its regulations to remove the vacated
PM2.5 SILs and SMC provisions from the PSD regulations
(December 9, 2013, 78 FR 73698). The EPA will initiate a separate
rulemaking in the future regarding the PM2.5 SILs that will
address the Court's remand. In the meantime, the EPA is advising states
to begin preparations to remove the vacated provisions from state PSD
regulations.
With regard to the minor NSR requirement of this element, we have
determined that Idaho's minor NSR program regulates direct
PM2.5 and NOX and SO2 as precursors.
In addition, we have determined that Idaho's minor NSR program
regulates NOX and VOCs as precursors to ozone. Based on the
foregoing, we are proposing to approve the Idaho SIP as meeting the
requirements of CAA section 110(a)(2)(C) for the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS.
110(a)(2)(D): Interstate Transport
CAA section 110(a)(2)(D)(i) requires state 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 (CAA section
110(a)(2)(D)(i)(I)). Further, this section requires state SIPs to
include provisions prohibiting any source or other type of emissions
activity in one state from interfering with measures required to
prevent significant deterioration (PSD) of air quality, or from
interfering with measures required to protect visibility (i.e. measures
to address regional haze) in any state (CAA section
110(a)(2)(D)(i)(II)).
As noted above, this action does not address the requirements of
CAA section 110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS which
we previously approved on November 26, 2010 (75 FR 72705) and June 22,
2011 (76 FR 36329). This action also does not address the requirements
of CAA section 110(a)(2)(D)(i)(I) for the 2006 PM2.5 and
2008 ozone NAAQS, which we will address in a future action. In this
proposal, we are proposing to act on Idaho's submission relating to
110(a)(2)(D)(i)(II) and 110(a)(2)(D)(ii).
State submittals: On June 28, 2010, Idaho DEQ submitted the Idaho
Interstate Transport State Implementation Plan for the 1997 and 2006
PM2.5 NAAQS, and the 1997 and 2008 ozone NAAQS (Interstate
Transport SIP). Idaho's Interstate Transport SIP addressed
110(a)(2)(D)(i)(II) by referencing Idaho's SIP-approved PSD program,
revisions to which were approved on November 26, 2010 and Idaho's
Regional Haze SIP submitted to the EPA on October 25, 2010.
EPA analysis: The EPA believes that the CAA section
110(a)(2)(D)(i)(II) PSD sub-element may be met by the State's
confirmation in the submittal that new major sources and major
modifications in the State are subject to a SIP-approved PSD program.
We most recently approved revisions to Idaho's PSD program on March 3,
2014, updating the Idaho PSD for purposes of fine particulate matter
NAAQS implementation in attainment and unclassifiable areas (79 FR
11711). On July 17, 2012, we approved a revision to the Idaho SIP to
provide authority to implement the PSD permitting program with respect
to greenhouse gas emissions (77 FR 41916). Idaho's PSD program
implements the 2006 PM2.5 and 2008 ozone NAAQS and
incorporates the Federal PSD program regulations at 40 CFR 52.21 by
reference. Idaho's SIP-approved PSD program regulates NOX
and VOCs as precursors to ozone. As discussed above in section
110(a)(2)(C), Idaho's Federally-approved PSD program reflects
PM2.5 regulatory requirements the EPA has established for
major NSR in attainment and unclassifiable areas. We believe that our
proposed approval of element 110(a)(2)(D)(i)(II) is not affected by
recent court vacaturs of Federal PSD implementing regulations. Please
see our discussion at section 110(a)(2)(C). Therefore, we are proposing
to approve the Idaho SIP as meeting the requirements of CAA section
110(a)(2)(D)(i)(II) with regards to PSD for the 2006 PM2.5
and 2008 ozone NAAQS.
The EPA believes that, for the CAA section 110(a)(2)(D)(i)(II)
visibility sub-element, the requirement could be satisfied by an
approved SIP addressing regional haze. The EPA's reasoning is that the
development of the regional haze SIPs was intended to occur in a
collaborative environment among the states, and that through this
process states would coordinate on emissions controls to protect
visibility on an interstate basis.
The Idaho submittal references the Idaho Regional Haze SIP,
submitted to the EPA on October 25, 2010, which addresses visibility
impacts across states within the region. On June 9, 2011, we
[[Page 16719]]
approved a SIP revision which provides Idaho DEQ authority to address
regional haze and to implement best available retrofit technology
(BART) requirements (76 FR 33651). Subsequently on June 22, 2011, we
approved portions of the Idaho Regional Haze SIP, including the
requirements for BART (76 FR 36329). Finally, on November 8, 2012, we
approved the remainder of the Idaho Regional Haze SIP, including those
portions that address CAA provisions that require states to set
Reasonable Progress Goals for their Class I areas, and to develop a
Long Term Strategy to achieve these goals (77 FR 66929).
The EPA is proposing to find that, as a result of the prior
approval of the Idaho Regional Haze SIP, including BART requirements,
the Idaho SIP contains adequate provisions to address
110(a)(2)(D)(i)(II) visibility requirements with respect to the 2006
PM2.5 and 2008 ozone NAAQS. Therefore, we are proposing to
approve the Idaho SIP as meeting the requirements of CAA section
110(a)(2)(D)(i)(II) as it applies to visibility for the 2006
PM2.5 and 2008 ozone NAAQS.
Interstate and international transport provisions: CAA section
110(a)(2)(D)(ii) requires SIPs to include provisions insuring
compliance with the applicable requirements of CAA sections 126 and 115
(relating to interstate and international pollution abatement).
Specifically, CAA section 126(a) requires new or modified major sources
to notify neighboring states of potential impacts from the source.
EPA analysis: We most recently approved revisions to Idaho's PSD
program on March 3, 2014, updating the program for purposes of fine
particulate matter NAAQS implementation in attainment and
unclassifiable areas (79 FR 11711). On July 17, 2012, the EPA approved
a revision to the Idaho SIP to provide authority to implement the PSD
permitting program with respect to greenhouse gas emissions (77 FR
41916). Idaho's PSD program implements the 1997 PM2.5, 2006
PM2.5, and 2008 ozone NAAQS and incorporates the Federal PSD
program regulations at 40 CFR 52.21 by reference as of July 1, 2012.
IDAPA 58.01.01.209 (procedures for issuing permits) includes required
procedures for issuing permits for new sources, including procedures
for public processes, and notice to appropriate Federal, state and
local agencies, consistent with the requirements of the Federal PSD
program. Idaho issues notice of its draft permits and neighboring
states consistently receive copies of those drafts. In addition, Idaho
has no pending obligations under CAA section 115 or 126(b) of the CAA.
Therefore, we are proposing to approve the Idaho SIP as meeting the
requirements of CAA section 110(a)(2)(D)(ii) for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
110(a)(2)(E): Adequate Resources
CAA 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) requirements that the state comply with the
requirements respecting state boards under 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.
State submittals: The Idaho submittals refer to specific Idaho
statute including: Idaho Code 39-105, which lays out the powers and
duties of Idaho DEQ's director and gives the director the power to
utilize any Federal aid and grants; Idaho Code Section 39-106, which
gives the Idaho DEQ Director authority to hire personnel to carry out
duties of the department; Idaho Code 39-107, which establishes the
State's Board of Environmental Quality; and Idaho Code Section 39-107B,
which 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.
The Idaho submittals also cite agreements with local agencies on
nonattainment plans. On certain nonattainment plans, Idaho DEQ has
entered into agreements for local implementation and enforcement of
measures such as wood stove and street sweeping ordinances. When Idaho
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 Idaho DEQ could issue the
resident a Tier II source operating permit and enforce the ordinance
terms included in the permit.
EPA analysis: We are proposing to find that the above-referenced
provisions provide Idaho DEQ with adequate authority to carry out SIP
obligations with respect to the 1997 PM2.5, 2006
PM2.5, and 2008 ozone NAAQS as required by CAA section
110(a)(2)(E)(i). With respect to sub-element (E)(ii), on October 24,
2013 we approved a revision to the Idaho SIP for purposes of meeting
CAA section 128 and CAA section 110(a)(2)(E)(ii) for criteria
pollutants (78 FR 63394). We are also proposing to find that the State
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
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS as
required by CAA section 110(a)(2)(E)(iii). Therefore we are proposing
to approve the Idaho SIP as meeting the requirements of CAA sections
110(a)(2)(E) for the 1997 PM2.5, 2006 PM2.5, and
2008 ozone NAAQS.
110(a)(2)(F): Stationary Source Monitoring System
CAA 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.
State submittals: The Idaho submittals state that Idaho 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. The submittals reference the following
regulatory provisions: IDAPA 58.01.01.121, which outlines the authority
of Idaho DEQ to require monitoring, recordkeeping and periodic
reporting related to source compliance; IDAPA 58.01.01.122, which
provides Idaho DEQ authority to issue information orders and orders to
conduct source emissions monitoring, record keeping, reporting and
other requirements; and IDAPA 58.01.01.157, which outlines 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.
EPA analysis: The provisions cited by the Idaho submittals
establish compliance requirements for sources subject to major and
minor source permitting to monitor emissions, keep
[[Page 16720]]
and report records, and collect ambient air monitoring data. The
provisions cited also provide Idaho DEQ authority to issue orders to
collect additional information as needed for Idaho DEQ to ascertain
compliance. In addition, IDAPA 58.01.01.211 (conditions for permits to
construct) and 58.01.01.405 (conditions for tier II operating permits)
provide Idaho DEQ authority to establish permit conditions requiring
instrumentation to monitor and record emissions data, and
instrumentation for ambient monitoring to determine the effect
emissions from the stationary source or facility may have, or are
having, on the air quality in any area affected by the stationary
source or facility. This information is made available to the public
through public processes outlined at IDAPA 58.01.01.209 (procedures for
issuing permits) for permits to construct and 58.01.01.404 (procedures
for issuing permits) for Tier II operating permits.
Additionally, Idaho is required to submit emissions data to the EPA
for purposes of the National Emissions Inventory (NEI). The NEI is the
EPA's central repository for air emissions data. The EPA published the
Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified
the requirements for collecting and reporting air emissions data (73 FR
76539). All states are required to submit a comprehensive emissions
inventory every three years and report emissions for certain larger
sources annually through the EPA's online Emissions Inventory System.
States report emissions data for the six criteria pollutants and their
associated precursors--nitrogen oxides, sulfur dioxide, ammonia, lead,
carbon monoxide, particulate matter, and volatile organic compounds.
Many states also voluntarily report emissions of hazardous air
pollutants. The EPA compiles the emissions data, supplementing it where
necessary, and releases it to the general public through the Web site
https://www.epa.gov/ttn/chief/eiinformation.html.
Based on the analysis above, we are proposing to approve the Idaho
SIP as meeting the requirements of CAA section 110(a)(2)(F) for the
1997 PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
110(a)(2)(G): Emergency Episodes
CAA section 110(a)(2)(G) requires states to provide for authority
to address activities causing imminent and substantial endangerment to
public health, including adequate contingency plans to implement the
emergency episode provisions in their SIPs.
State submittals: The Idaho submittals cite Idaho Code 39-112,
which provides emergency order authority comparable to that in CAA
section 303. In addition, the submittals cite the Idaho 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.''
EPA analysis: CAA section 303 provides authority to the EPA
Administrator to restrain any source from causing or contributing to
emissions which present an ``imminent and substantial endangerment to
public health or welfare, or the environment.'' We find that Idaho Code
Section 112 provides the Idaho DEQ Director with comparable authority.
The Idaho air pollution emergency rules at IDAPA 58.01.01.550-562
were previously approved by the EPA on January 16, 2003 (68 FR 2217).
Idaho's air pollution emergency rules include PM2.5 and
ozone, establish stages of episode criteria, provide for public
announcement whenever any episode stage has been determined to exist,
and specify emission control actions to be taken at each episode stage,
consistent with the EPA emergency episode SIP requirements set forth at
40 CFR part 51 subpart H (prevention of air pollution emergency
episodes, sections 51.150 through 51.153) for particulate matter and
ozone. Therefore, we are proposing to approve the Idaho SIP as meeting
the requirements of CAA section 110(a)(2)(G) for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
110(a)(2)(H): Future SIP Revisions
CAA 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.
State submittals: The Idaho submittals refer to Idaho Code Section
39-105(3)(d) which provides Idaho 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
their submittal for CAA section 110(a)(2)(A) above.
EPA analysis: We find that Idaho has adequate authority to
regularly update the SIP to take into account revisions of the NAAQS
and other related regulatory changes. In practice, Idaho regularly
updates the SIP for purposes of NAAQS revisions and other regulatory
changes. We most recently approved revisions to the Idaho SIP on March
3, 2014 (79 FR 11711), April 3, 2013 (78 FR 20001), and March 19, 2013
(78 FR 16790). Idaho has incorporated by reference the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS into the
Idaho SIP. Therefore, we are proposing to approve the Idaho SIP as
meeting the requirements of CAA section 110(a)(2)(H) for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
110(a)(2)(I): Nonattainment Area Plan Revision Under Part D
There are two elements identified in CAA section 110(a)(2) not
governed by the three year submission deadline of CAA section 110(a)(1)
because SIPs incorporating necessary local nonattainment area controls
are not due within three 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 and the various pollutant specific
subparts 2-5 of part D. These requirements are: (i) Submissions
required by CAA 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 CAA 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 CAA section 110(a)(2)(C) with respect to nonattainment NSR
or CAA section 110(a)(2)(I).
110(a)(2)(J): Consultation with government officials: CAA 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 CAA section 121. CAA 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, CAA section 110(a)(2)(J)
requires states to meet applicable requirements of part C, title I of
the CAA related to prevention of significant deterioration and
visibility protection.
State submittals: The Idaho submittals refer to laws and
regulations relating to public participation processes for SIP
[[Page 16721]]
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. The submittals refer 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's submittals reference the Idaho
transportation conformity rules, and states that Idaho DEQ generally
incorporates by reference the Federal PSD and nonattainment new source
review programs.
EPA analysis: The Idaho 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. The 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 November 26, 2010 (75 FR 47530) and
January 16, 2003 (68 FR 2217) respectively. We approved Idaho's rules
that define transportation conformity consultation on April 12, 2001
(66 FR 18873). In practice, Idaho DEQ routinely coordinates with local
governments, states, Federal Land Managers and other stakeholders on
air quality issues including permitting action, transportation
conformity, and regional haze. Therefore, we are proposing to find that
the Idaho SIP meets the requirements of CAA section 110(a)(2)(J) for
consultation with government officials for the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS.
CAA section 110(a)(2)(J) also requires the public be notified if
NAAQS are exceeded in an area and to enhance public awareness of
measures that can be taken to prevent exceedances. The EPA calculates
an air quality index for five major air pollutants regulated by the
Clean Air Act: Ground-level ozone, particulate matter, carbon monoxide,
sulfur dioxide, and nitrogen dioxide. The EPA AIRNOW program provides
this air quality index daily to the public, including health effects
and actions members of the public can take to reduce air pollution.
Idaho actively participates and submits information to the AIRNOW
program, in addition to the EPA's Enviroflash Air Quality Alert
program. Idaho DEQ also provides the daily air quality index to the
public on the DEQ Web site at https://www.deq.idaho.gov/air/aqindex.cfm,
as well as measures that can be taken to prevent exceedances.
Therefore, we are proposing to find that the Idaho SIP meets the
requirements of CAA section 110(a)(2)(J) for public notification for
the 1997 PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
Turning to the requirement in CAA section 110(a)(2)(J) that the SIP
meet the applicable requirements of part C, title I of the CAA, we have
evaluated this requirement in the context of CAA section 110(a)(2)(C)
with respect to permitting. The EPA most recently approved revisions to
the Idaho's PSD program on March 3, 2014, updating the PSD program for
purposes of fine particulate matter NAAQS implementation in attainment
and unclassifiable areas (79 FR 11711). On July 17, 2012, we approved a
revision to the Idaho SIP to provide authority to implement the PSD
permitting program with respect to greenhouse gas emissions (77 FR
41916). Idaho's PSD program implements the 1997 PM2.5, 2006
PM2.5, and 2008 ozone NAAQS and incorporates by reference
the Federal PSD program regulations at 40 CFR 52.21 as of July 1, 2012.
We believe that our proposed approval of element 110(a)(2)(J) is not
affected by recent court vacaturs of EPA PSD implementing regulations.
(Please see our discussion at section 110(a)(2)(C).) Therefore, we are
proposing to approve the Idaho SIP as meeting the requirements of CAA
section 110(a)(2)(J) with respect to PSD for the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS.
With regard to the applicable requirements for visibility
protection, the EPA recognizes that states are subject to visibility
and regional haze program requirements under part C, title I 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 applicable requirement
relating to visibility triggered under CAA section 110(a)(2)(J) when a
new NAAQS becomes effective. Based on the above analysis, we are
proposing to approve the Idaho SIP as meeting the requirements of CAA
section 110(a)(2)(J) for the 1997 PM2.5, 2006
PM2.5, and 2008 ozone NAAQS.
110(a)(2)(K): Air Quality and Modeling/Data
CAA 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.
State submittals: The Idaho submittals state that 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 Part 51, Appendix
W (Guidelines on Air Quality Models) which is incorporated by reference
at IDAPA 58.01.01.107.
EPA analysis: We most recently approved revisions to IDAPA
58.01.01.107 (Incorporations by Reference) on March 3, 2014 (79 FR
11711). This rule incorporates by reference the following EPA
regulations: 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 revised as of July 1,
2012. Idaho has incorporated by reference the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS into State regulations.
Idaho models estimates of ambient concentrations based on 40 CFR part
51 Appendix W (Guidelines on Air Quality Models). To cite an example of
a SIP supported by substantial modeling, the EPA approved the
PM10 Maintenance Plan for Northern Ada County/Boise Idaho
Area on October 27, 2003 (68 FR 61106). Therefore, we are proposing to
approve the Idaho SIP as meeting the requirements of CAA section
110(a)(2)(K) for the 1997 PM2.5, 2006 PM2.5, and
2008 ozone NAAQS.
110(a)(2)(L): Permitting Fees
CAA 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.
State submittals: The Idaho submittals state 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
[[Page 16722]]
by the Administrator's approval of a fee program under title V. The EPA
approved Idaho's title V permitting program on October 4, 2001 (66 FR
50574) with an effective data of November 5, 2001.
EPA analysis: We approved Idaho's title V 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 Idaho can use to ensure that Idaho
DEQ has sufficient resources to support the air program, consistent
with the requirements of the SIP. Before the EPA can grant full
approval, a state must demonstrate the ability to collect adequate
fees. Idaho's title V program included a demonstration the State will
collect a fee from title V sources above the presumptive minimum in
accordance with 40 CFR 70.9(b)(2)(i). In addition, Idaho regulations
require fees for purposes of major and minor NSR permitting, as
specified in IDAPA 58.01.01.224-227. Therefore, we are proposing to
conclude that Idaho has satisfied the requirements of CAA section
110(a)(2)(L) for the 1997 PM2.5, 2006 PM2.5, and
2008 ozone NAAQS.
110(a)(2)(M): Consultation/Participation by Affected Local Entities
CAA section 110(a)(2)(M) requires states to provide for
consultation and participation in SIP development by local political
subdivisions affected by the SIP.
State submittals: The Idaho submittals state that 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 at IDAPA 58.01.01.107. Idaho also references
rules cited under CAA section 110(a)(2)(J) above.
EPA analysis: The EPA most recently approved IDAPA 58.01.01.107
(incorporations by reference), which incorporates by reference 40 CFR
part 51, Requirements for Preparation, Adoption, and Submittal of
Implementation Plans, on March 3, 2014 (79 FR 11711). In addition, we
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) and November 26, 2010 (75 FR 47530).
Finally, we approved the Idaho rules that define transportation
conformity consultation on April 12, 2001 (66 FR 18873). Therefore, we
are proposing to approve the Idaho SIP as meeting the requirements of
CAA section 110(a)(2)(M) for the 1997 PM2.5, 2006
PM2.5, and 2008 ozone NAAQS.
V. Proposed Action
The EPA is proposing to find that the Idaho SIP meets the following
CAA section 110(a)(2) infrastructure elements for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS: (A),
(B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). We are
also proposing to find that the Idaho SIP meets the requirements of CAA
section 110(a)(2)(D)(i)(II) as it applies to prevention of significant
deterioration and visibility for the 2006 PM2.5 and 2008
ozone NAAQS.
VI. 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, the 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 the requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because this action does not involve technical standards; and
Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and the 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, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, and Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 13, 2014.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2014-06664 Filed 3-25-14; 8:45 am]
BILLING CODE 6560-50-P
