05-19615. Approval and Promulgation of Implementation Plans; Idaho; Correcting Amendment

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

In this final action, EPA is correcting an error in the incorporation by reference provisions in the approval of revisions to the Rules for the Control of Air Pollution in Idaho (IDAPA 58.01.01) published on January 16, 2003 (68 FR 2217). This correction removes the list of State toxic air pollutants from the definition of “regulated air pollutant” in the EPA-approved Idaho State implementation plan.

DATES:

This action is effective on November 7, 2005.

ADDRESSES:

Copies of the State's request and other supporting information used in developing this action are available for inspection during normal business hours at the following locations: EPA, Office of Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Seattle, Washington 98101. Interested persons wanting to examine these documents should make an appointment with the appropriate office at least 24 hours before the visiting day. A reasonable fee may be charged for copies.

FOR FURTHER INFORMATION CONTACT:

David C. Bray, Office of Air, Waste and Toxics, AWT-107, Environmental Protection Agency, Region 10, 1200 Sixth Ave., Seattle, WA 98101; phone: [phone].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. This Action

A. What Comments Did We Receive on the Proposed Action?

B. What Is the Basis for This Action?

C. What Is our Final Action?

III. Statutory and Executive Order Reviews

I. Background

On January 16, 2003 (68 FR 2217), EPA approved numerous changes to the Idaho Department of Environmental Quality (IDEQ) rules as revisions to the Idaho State implementation plan (SIP). In that rulemaking, EPA did not approve the IDEQ rules for toxic air pollutants or TAP's and specifically excluded the toxic air pollutant provisions (IDAPA 58.01.01.203.03, 210, 223, 585, and 586) from its incorporation by reference. See 40 CFR 52.670(c)(37); 68 FR at 2224 (January 16, 2003); 67 FR 52666, 52668, 52672-73 (August 13, 2002). However, EPA inadvertently incorporated a cross reference to the toxic air pollutant provisions (Sections 585 and 586) within the IDEQ definition of “regulated air pollutant” (IDAPA 58.01.01.006(84)). It was EPA's intention to exclude all aspects of the IDEQ toxic air pollutant program from the federally-approved SIP.

EPA also received a request from the IDEQ to correct the inadvertent incorporation by reference. In an October 20, 2004 letter to EPA, the Administrator of the IDEQ Air Quality Division requested that EPA clarify or correct its approval of the Idaho SIP.

On July 20, 2005, EPA proposed to correct this error by amending the incorporation by reference of the Idaho SIP to exclude paragraph (f) from the definition of “regulated air pollutant” at IDAPA 58.01.01.006(84).

II. This Action

A. What Comments Did We Receive on the Proposed Action?

EPA provided a 30-day review and comment period on the proposal published in the Federal Register on July 20, 2005. 70 FR 41652. We received no comments on our proposed rulemaking.

B. What Is the Basis for This Action?

Under section 110(k)(6) of the Clean Air Act, whenever EPA determines that its action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, EPA may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the state. Such determination and the basis thereof shall be provided to the state and public. Pursuant to section 110(k)(6), EPA proposed a revision to the Idaho SIP to correct the inadvertent incorporation by reference of the Idaho toxic air pollutant provisions within the definition of “regulated air pollutant.”

C. What Is Our Final Action?

EPA is taking final action to correct the incorporation by reference of the Idaho toxic air pollutant provisions so that IDEQ's list of toxic air pollutants will not be considered to be “regulated air pollutants” for purposes of the federally-approved SIP. All of the air pollutants regulated under the federal Clean Air Act will still be “regulated air pollutants” for SIP purposes in accordance with the IDEQ definition. The corrected definition meets or exceeds the requirements of the federal Clean Air Act and EPA's regulations for State implementation plans. The corrected definition is also consistent with IDEQ's SIP submittal and EPA's January 16, 2003 approval action which specifically excluded IDEQ's toxic air pollutant rules from the EPA-approved SIP.

III. Statutory and Executive Order Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this final action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely corrects the incorporation by reference of the list of toxic air pollutants used in regulatory provisions that are not part of the EPA-approved SIP and does not impose any additional requirements on state, local or tribal governments or the private sector. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely corrects the incorporation by reference of the list of State toxic air pollutants as initially requested by the State and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 5, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Reporting and recordkeeping requirements

Dated: September 20, 2005.

Julie M. Hagensen,

Acting Regional Administrator, Region 10.

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for Part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart N—Idaho

2. In § 52.670(c), the table is amended by revising the entry for 006 to read as follows:

§ 52.670

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Idaho Regulations

State citation	Title/subject	State effective date	EPA approval date	Explanations
Idaho Administrative Procedures Act (IDAPA) Chapter 58, Rules for Control of Air Pollution in Idaho, Previously Codified at IDAPA Chapter 39 (Appendix A.3)
58.01.01—RULES FOR THE CONTROL OF AIR POLLUTION IN IDAHO
*         *         *         *         *         *         *
006	General Definitions	4/5/00, 3/20/97, 5/1/95, 5/1/94	01/16/03, 68 FR 2217 10/6/05 [Insert page number where the document begins]	Except (84)(f)
*         *         *         *         *         *         *