[Federal Register Volume 61, Number 236 (Friday, December 6, 1996)]
[Rules and Regulations]
[Pages 64622-64635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31121]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5657-5]
Clean Air Act Final Interim Approval of Operating Permits
Program, State of Idaho; Clean Air Act Proposed Delegation of National
Emission Standards for Hazardous Air Pollutants as They Apply to Title
V Sources and Approval of Streamlined Mechanism for Future Delegations,
State of Idaho
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval and delegation.
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SUMMARY: EPA is promulgating final interim approval of the Operating
Permits Program submitted by the Idaho Division of Environmental
Quality (IDEQ) for the purpose of complying with Federal requirements
for an approvable State program to issue operating permits to all major
stationary sources and to certain other sources. EPA is also
promulgating final interim approval of IDEQ's request for delegation of
authority to implement and enforce State-adopted hazardous air
pollutant regulations, which adopt by reference the Federal National
Emission Standards for Hazardous Air Pollutants (NESHAP) contained
within 40 CFR parts 61 and 63 as in effect on April 1, 1994, as these
regulations apply to sources that are required to obtain a Federal
operating permit. EPA is also approving a mechanism for Idaho to
receive delegation of future NESHAP standards that the State adopts by
reference into State law.
EFFECTIVE DATE: January 6, 1997.
ADDRESSES: Copies of the State's submittal and other supporting
information used in developing the final interim approval are available
for inspection during normal business hours at the following location:
U.S. Environmental Protection Agency, Region 10, 1200 Sixth Avenue,
Seattle, Washington.
FOR FURTHER INFORMATION CONTACT: Elizabeth Waddell, 1200 Sixth Avenue,
OAQ-107, Seattle, WA 98101, (206) 553-4303.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
1. Title V
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (``the Act'')), and implementing regulations at 40
Code of Federal Regulations (CFR) Part 70 require that States develop
and submit operating permits programs to EPA by November 15, 1993, and
that EPA act to approve or disapprove each program within 1 year after
receiving the submittal. The EPA's program review occurs pursuant to
section 502 of the Act and the part 70 regulations, which together
outline criteria for approval or disapproval. Where a program
substantially, but not fully, meets the requirements of part 70, EPA
may grant the program interim approval for a period of up to 2 years.
If EPA has not fully approved a program by 2 years after the November
15, 1993, date, or by the end of an interim program, it must establish
and implement a Federal program.
On October 27, 1995, EPA proposed disapproval of Idaho's title V
operating permits program because of deficiencies in the State's
provisions for excess emissions and administrative amendments. In the
alternative, EPA proposed interim approval of Idaho's program provided
Idaho revised its regulations to address these deficiencies and
submitted the revisions to EPA before final action on Idaho's
submittal. See 60 FR 54990. EPA received a single letter of public
comment which addressed sources located on Tribal lands and Idaho's
insignificant activities list. On January 12, 1996, Idaho submitted
program revisions addressing EPA's two proposed grounds for
disapproving Idaho's program.
On June 17, 1996, EPA reproposed action on two aspects of Idaho's
title V program. 61 FR 30570. First, EPA proposed that one of the four
deficiencies EPA initially noted in the October 27, 1996, Federal
Register in Idaho's general permitting regulations be eliminated as an
interim approval issue. 61 FR 30571. Second, EPA identified additional
reasons it believed that the audit immunity provisions of the Idaho
Environmental Audit Protection Act 1, Idaho Code 9-801 to 9-811,
required interim rather than full approval and proposed that Idaho also
be required to revise or address the audit privilege provisions of the
Idaho Audit Act as a condition of full approval. 61 FR 30571-30573. EPA
did not address the single comment it received on the October 27, 1995,
proposal or the effect of the State's revisions to its title V program
on the two disapproval issues because neither the comment nor the
State's program revisions involved the two title V issues on which EPA
reproposed action in the June 17, 1996, Federal Register document.
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\1\ In the October 27, 1995, and June 17, 1996, Federal Register
notices, EPA referred to the legislation as the ``Idaho
Environmental Audit Statute.'' The comments submitted by IDEQ and
the Idaho Attorney General refer to the legislation as the ``Idaho
Environmental Audit Protection Act,'' shortened to the ``Idaho Audit
Act.'' EPA will refer to this legislation by the latter title in
this notice.
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2. Section 112
Section 112(l) of the Clean Air Act authorizes EPA to approve State
air toxic programs or rules that operate in place of the Federal air
toxic program or rules. The Federal air toxic program implements the
requirements found in section 112 of the Act pertaining to the
regulation of hazardous air pollutants. Approval of an air toxic
program is granted by EPA if the Agency finds that: (1) The State
program is ``no less stringent'' than the corresponding Federal program
or rule, (2) the State has adequate authority and resources to
implement the program, (3) the schedule for implementation and
compliance is sufficiently expeditious, and (4) the program is
otherwise in compliance with Federal guidance. Once approval is
granted, the air toxic program can be implemented and enforced by State
or local agencies, as well as EPA.
On September 15, 1995, Idaho requested delegation of authority to
implement and enforce specific NESHAP regulations in 40 CFR parts 61
and 63 that Idaho had adopted as a matter of Idaho law on April 1,
1994. On December 14, 1995, Idaho also requested approval of its
mechanism for receiving automatic delegation of future NESHAP standards
as promulgated. In the June 17, 1996, limited reproposal on Idaho's
title V submittal, EPA also proposed interim approval of Idaho's
request for delegation under section 112(l) and requested public
comment on this action. Additionally, EPA proposed approval of a
mechanism for Idaho to receive delegation of the NESHAP standard which
the State may adopt by reference into State law in the future. See 61
FR 30570.
Idaho received numerous comments on the June 17, 1996, reproposal,
all addressing Idaho's title V submittal and all except for one
addressing the Idaho
[[Page 64623]]
Audit Act. None of the comments addressed EPA's proposed action under
section 112(l). In this document, EPA is taking final action to
promulgate interim approval of the operating permits program for the
State of Idaho, to delegate the NESHAPs as adopted by Idaho as they
apply to title V sources and as in effect on April 1, 1994 2, and
to approve a streamlined mechanism for future NESHAP delegations. EPA
is also responding to comments received on the October 27, 1995,
proposal and the June 17, 1996, reproposal.
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\2\ With the exception of the radionuclide NESHAP regulations in
40 CFR part 61, subparts B, H, I, Q, R, T, and W.
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II. Final Action and Implications
A. Analysis of Idaho's Title V Submission and Response to Public
Comments
1. Changes to Idaho's Regulations
Through an emergency rulemaking effective November 20, 1995, the
Idaho Division of Environmental Quality (IDEQ) repealed all of the
excess emission provisions in its title V regulations (IDAPA
16.01.01.326 through .332) except for IDAPA 16.01.01.332, which
provides an affirmative defense comparable to that provided in part 70
for violations of technology-based emission limits due to an
``emergency.'' See 40 CFR 70.6(g). These revisions adequately address
EPA's concerns that Idaho's excess emissions program for title V
sources did not assure compliance with all applicable requirements.
Idaho also made revisions to the excess emissions provisions that apply
to all sources in Idaho. See IDAPA 16.01.01.130 through .136. EPA will
review these changes as a revision to Idaho's State Implementation
Plan, which has been submitted to EPA for approval.
The emergency rulemaking also made revisions to Idaho's permit to
construct procedures applicable to title V sources. See IDAPA
16.01.01.209. These revisions ensure that the terms of preconstruction
permits incorporated into title V permits by administrative amendment
will contain compliance requirements substantially equivalent to the
requirements of a title V permit and adequately address the proposed
grounds for disapproval identified by EPA in the October 27, 1995,
Federal Register document.
IDEQ has made two other revisions to its title V permitting
regulations, neither of which affect the approvability of Idaho's title
V program. First, Idaho extended the deadline for the submission of
title V permit applications for sources existing on May 1, 1994, from
January 1, 1996, to June 1, 1996. See IDAPA 16.01.01.313.01.a. This
date will still ensure that all permit applications are submitted
within 12 months of when a source becomes subject to Idaho's title V
program, as required by 40 CFR 70.5(a)(1). Second, Idaho has made minor
revisions to the regulation specifying the information required in a
permit application. See IDAPA 16.01.01.314. These changes do not affect
the approvability of Idaho's permit application requirements.
2. Response to Public Comment
EPA received a single public comment on the October 27, 1995,
Federal Register document. The commenter disagreed with EPA's proposed
decisions regarding the geographic scope of the proposed approval and
insignificant activities. EPA received numerous comments on the June
17, 1996, reproposal. One commenter stated generally that it supports
full approval of the Idaho title V program, but did not explain why it
believed Idaho was entitled to full rather than interim approval. EPA
continues to believe that interim approval is appropriate for the
reasons set forth in the October 27, 1995, proposal (60 FR 54990), the
June 17, 1996, reproposal (61 FR 30570) and this document. All other
comments on the June 17, 1996, reproposal addressed the Idaho Audit
Act.
a. Geographic Scope of Idaho Program--Tribal Lands. EPA proposed to
exclude from the Idaho title V program title V sources located within
the exterior boundaries of Indian Reservations in Idaho 3 because
the State did not establish that it had authority to issue permits to
and enforce permits against such sources. The commenter expressed
concern over the complexity of the jurisdiction issue and that EPA's
proposal might cause hardships to sources on Indian Reservations, but
did not elaborate on what these hardships might be. EPA continues to
believe that the State of Idaho has not made a sufficient showing to
obtain title V approval for sources located within Indian Country in
Idaho and, therefore, is taking final action to exclude such sources
from the scope of this interim approval.
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\3\ Although the October 27, 1995, Federal Register notice used
the term ``within the exterior boundaries of Indian Reservations,''
EPA's position is that State's generally do not have civil
jurisdiction within ``Indian Country,'' as defined in 18 USC 1151.
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To obtain title V program approval, a State must demonstrate that
it has adequate authority to issue permits and to assure compliance by
all sources required to have permits under title V with each applicable
requirement under the Act. See Section 502(b)(5) of the Act; 40 CFR
70.4(b)(3)(i). The authority must include:
A legal opinion from the Attorney General from the State or the
attorney for those State, local, or interstate air pollution control
agencies that have independent counsel, stating that the laws of the
State, locality, or interstate compact provide adequate authority to
carry out all aspects of the program. This statement shall include
citations to the specific sta[tut]es, administrative regulations,
and, where appropriate, judicial decisions that demonstrate adequate
authority.
40 CFR 70.4(b)(3). Thus, the Act requires States to support their title
V program submittals with a specific showing of adequate legal
authority over all regulated sources, including sources located on
lands within Indian Country.
In its title V program submittal, Idaho made no attempt either to
claim or to show authority over sources located within Indian Country.
Indeed, the State clarified on April 5, 1995, that its submittal ``was
not an attempt to address jurisdictional issues over tribal lands.''
Furthermore, the Shoshone-Bannock Tribes and the Kootenai Tribe of
Idaho wrote to EPA on April 11, 1995, and March 22, 1995, respectively,
asserting that the State had ``not demonstrate[d] authority to
institute an air permitting program on reservations as is required
under title V of the Act.'' Accordingly, EPA concludes that Idaho has
not demonstrated authority to regulate title V sources in Indian
Country and, therefore, does not grant program approval to the State
for these sources.
b. Insignificant activities. The commenter also disagreed with
EPA's proposal to grant interim rather than full approval to Idaho's
insignificant activities list. The commenter referred to the EPA
guidance document entitled White Paper for Streamlined Development of
Part 70 Permit Applications, from Lydia N. Wegman, Deputy Director,
Office of Air Quality Planning and Standards, to the Air Division
Directors (July 10, 1995), as supporting the development of
insignificant activities lists. The commenter believes that EPA should
encourage IDEQ to develop the proper regulatory guidance to go with
Idaho's list and that such guidance would give Idaho and the regulated
community further time to evaluate the list and to propose any changes
that may be warranted.
EPA agrees with the commenter and fully intended this outcome by
granting
[[Page 64624]]
Idaho interim approval of its program for insignificant activities. By
granting Idaho interim approval on this issue, Idaho will have 18
months to submit changes that address EPA's concerns. In the interim,
IDEQ and the regulated community may use the lists as currently
promulgated by the State. This time period will allow Idaho and the
regulated community the time that the commenter requests to develop
guidance and evaluate and revise the list as required by EPA as a
condition of full approval. Accordingly, EPA will continue to require
that Idaho address the issues identified in Section II.A.6. below as a
condition of full approval.
c. Idaho Audit Act. In the June 17, 1996, Federal Register document
reproposing action on Idaho's title V program, EPA explained in great
detail why EPA believed that the Idaho Audit Act impermissibly
interfered with the enforcement requirements of title V and part 70 and
thus posed a bar to full approval. EPA received four comment letters
strongly opposing EPA's proposal with respect to the Idaho Audit Act.
These included comments jointly submitted by IDEQ and the Idaho
Attorney General's Office; comments submitted by the Idaho Association
of Commerce & Industry, which represents members of the Idaho business
community; and comments from two law firms representing nationwide
trade organizations and industries. EPA also received three comment
letters from environmental and public interest organizations agreeing
with EPA that the Idaho Audit Act was inconsistent with the enforcement
requirements of title V and part 70 and urged interim approval or
disapproval.\4\
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\4\ EPA has recently received a copy of rules promulgated by
IDEQ under the Idaho Audit Act. See IDAPA 16.01.10.000-018. EPA does
not believe that these rules remedy the problems identified with the
Idaho Audit Act in the June 17, 1996, Federal Register notice and
this notice. EPA notes with concern, however, the provision of IDAPA
16.01.10.015.03(b) which defines a violation disclosed within 60
days after discovery through an environmental audit as a violation
disclosed in a ``timely manner'' and thus entitled to immunity. EPA
is concerned that this lengthy time period would not require prompt
reporting of violations involving a potential of imminent and
substantial endangerment as a condition of immunity.
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i. Comments that the Idaho Audit Act does not pose a bar to full
title V approval. (A) Effect of the Idaho Audit Act on Idaho's
enforcement authority. The commenters opposing EPA's action with
respect to the Idaho Audit Act raise numerous issues. As an initial
matter, several of the commenters stated that nothing in the Clean Air
Act or part 70 contains a prohibition against State audit protection
and/or immunity laws or precludes a State from determining that
criminal or civil prosecution is inappropriate in certain defined
situations, such as those specified in the Idaho Audit Act.
Section 502(b)(5)(E) of the Clean Air Act lays out the minimum
enforcement authorities which Congress required a State to have in
order to secure Federal approval to implement and enforce a title V
operating permits program. That section requires, as a condition of
Federal approval, that a State have adequate authority to issue permits
and assure compliance; to terminate or revoke such permits for cause;
and to enforce permits, permit fee requirements, and the requirement to
obtain a permit, including authority to recover civil penalties of at
least $10,000 per day for each violation and to provide appropriate
criminal penalties. The part 70 implementing regulations, at 40 CFR
70.11, elaborate upon those authorities. Part 70 requires a State to
have authority to issue emergency orders and seek injunctive relief (40
CFR 70.11(a) (1) and (2)) and to assess civil and criminal penalties in
a maximum amount of not less than $10,000 per day per violation (40 CFR
70.11(a)(3)). Although neither title V nor part 70 expressly prohibits
State audit privilege and/or immunity laws, the analysis in the June
17, 1996, Federal Register document shows how the Idaho Audit Act
interferes with the requirements for civil and criminal penalty
authority set forth in title V and the part 70 implementing regulations
so as to preclude full approval of Idaho's operating permits program.
For example, as EPA explained in the June 17, 1996, Federal Register
document, the immunity provisions of the Idaho Audit Act alter and in
fact eliminate the State's authority to recover any civil or criminal
penalties under the circumstances identified in the Idaho Audit Act.
See 61 FR 30571-30573. The immunity provision of the Idaho Audit Act
bars prosecution of intentional and knowing violations that would
otherwise be a basis for criminal liability unless the source has
previously and repeatedly violated the same requirements within the
past three years. Moreover, the provisions of the Idaho Audit Act
preventing the compelled disclosure of environmental audit reports
prevents the State from obtaining potentially important information on
whether a violation was knowing or whether a violation has been
corrected. If the State, by virtue of such laws, surrenders its ability
to thoroughly investigate potential violations or its discretion to
take appropriate enforcement action in the face of violations, then the
State's fundamental enforcement authority is compromised. EPA believes
that this is the case with the Idaho Audit Act.
In a similar vein, the commenters argue that the State of Idaho has
the general authorities enumerated in section 502(b)(5)(E) of the Clean
Air Act and 40 CFR 70.11 to enforce permits, permit fee requirements
and the requirement to obtain a permit and to recover civil and
criminal penalties in a maximum amount of not less than $10,000 per day
of violation, and that nothing in the text of section 502(b)(5)(E) of
the Act or the part 70 regulations authorizes EPA to consider the
effect of State laws of general applicability on a State's title V
civil and criminal enforcement authorities. The commenters further
argue that the logical corollary of EPA's proposed action with respect
to the Idaho Audit Act is that every State procedural and evidentiary
rule must be evaluated and amended whenever EPA believes that it could
in some fashion, directly or indirectly, interfere with environmental
enforcement.
Laws of general applicability are an appropriate subject for EPA
review as is evident from the language of the part 70 regulations
themselves. The regulations require that a State applying for a title V
operating permits program include copies of ``all applicable State or
local statutes and regulations including those governing State
administrative procedures that either authorize the part 70 program or
restrict its implementation.'' 40 CFR 70.4(b)(2) (emphasis added). The
regulations also require a legal opinion from the State Attorney
General asserting that the laws of the State provide adequate authority
to carry out ``all aspects of the program.'' 40 CFR 70.4(b)(3). It is
certainly EPA's expectation that, in issuing such a legal opinion, the
Attorney General is certifying that no State laws, even laws of general
applicability or laws of evidence, interfere with the State's authority
to administer and enforce the title V program. See 59 FR 47105, 47108
(September 14, 1994) (requiring Oregon to revise or clarify meaning of
criminal statute appearing to limit criminal liability of corporations
as a condition of full title V approval); 59 FR 61820, 61825 (December
2, 1994) (accepting Oregon Attorney General's opinion regarding effect
of statute).\5\
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\5\ One commenter argues that section 116 of the Clean Air Act
bars EPA from seeking to preempt State audit privilege and/or
immunity laws. Section 116 states that, subject to limited
exceptions, nothing in the Clean Air Act shall preclude or deny the
right of any State to adopt or enforce emissions standards or
limitations or requirements respecting the control or abatement of
air pollution ``except where such emission standard or limitation is
less stringent than required by the Clean Air Act.'' Such an
interpretation would mean that EPA has no authority to disapprove
any State enforcement provisions as a condition of title V approval.
Section 502(b)(5)(E), which requires EPA to promulgate minimum
enforcement authorities required for approval of a State title V
program, clearly belies such an argument.
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[[Page 64625]]
Several commenters also argued that the Idaho Audit Act does not
interfere with the enforcement requirements of title V because it is
qualified in a number of important respects. The commenters note in
particular that the Idaho Audit Act, like most other State audit
privilege and/or immunity legislation, does not offer immunity or
protection from disclosure for information required by law to be
collected, developed, reported or otherwise made available to a
government agency. See Idaho Code 9-805, 9-807, 9-809(5). One commenter
stated that the Idaho Audit Act covers ``almost every conceivable
disclosure affected by a Title V Clean Air Act permit * * * In fact, it
is difficult to conceive of a situation under a Title V program in
which there was not a specific permit condition to make the disclosure
voluntary.''
EPA noted in the June 17, 1996, Federal Register document that the
Idaho Audit Act does contain provisions which narrow its scope, and
noted particularly the provisions which exclude from the scope of the
immunity and protection from disclosure information that is required to
be collected, developed, or reported under State or Federal law. 61 FR
60572-73. Therefore, EPA agrees with the commenters that in many cases
disclosure of a violation discovered during an audit would not be
considered ``voluntary'' and thus would not be entitled to immunity
under the Idaho Audit Act. Similarly, EPA agrees that in many cases the
information necessary to bring an enforcement action will be
information that a facility is required to collect, develop, report, or
otherwise make available to the government and therefore not subject to
the protection from disclosure provided by the Idaho Audit Act. At
least one other State has issued an opinion stating that its audit
immunity statute does not apply to title V sources because the statute
does not apply to violations that are required to be reported by the
source and because of the extensive monitoring, recordkeeping, and
reporting requirements of that State's title V operating program. See
61 FR 42224-42225 (August 14, 1996) (proposed interim approval of New
Hampshire title V program); 61 FR 51370 (October 2, 1996) (final
interim approval of New Hampshire title V program). It is not clear,
however, as a matter of Idaho law, that all evidence of violations of
title V permits and permit requirements would be required to be
reported to the State of Idaho under its title V regulations, thus
excluding such violations from the immunity of Idaho Code 9-809 and
from the prohibition against compelled disclosure of Idaho Code 9-804.
The Idaho Attorney General's Office has not provided EPA with such an
opinion, and EPA must therefore infer that there could be violations at
a title V source discovered through an environmental audit that would
be entitled to immunity or protection against compelled disclosure
under the Idaho Audit Act. Therefore, the concerns raised by EPA in the
June 17, 1996, Federal Register document remain.
The commenters also take issue with EPA's interpretation of the
title V and part 70 requirements for enforcement authority, as
evidenced in the April 5, 1996, memorandum entitled ``Effect of Audit
Immunity/Privilege Laws on States' Ability to Enforce Title V
Requirements'' (hereinafter, the ``April 5 Title V Memorandum'') and
the June 17, 1996, Federal Register document reproposing action on the
Idaho title V program. The commenters argue that EPA's interpretation
and application of the title V enforcement requirements improperly
interferes with the States' role as independent sovereigns, improperly
divests States of their primary responsibility for implementing and
enforcing the Clean Air Act, and conflicts with the Clinton
Administration's stated policy to allow States to experiment with
alternative approaches to achieve environmental protection. The
commenters further argue that the determination of the Idaho
legislature that criminal or civil penalties are inappropriate under
the circumstances set forth in the Idaho Audit Act is within the
statutory boundaries and flexibility provided by the Clean Air Act. The
commenters continue that the immunity provisions of the Idaho Audit Act
reflect the Idaho legislature's judgment as to the ``appropriate''
penalty for companies that voluntarily disclose and correct instances
of environmental noncompliance and reflect a reasonable allocation of
the State's enforcement resources.
EPA agrees that, in enacting the Clean Air Act, Congress believed
that States and local governments should have the primary
responsibility for controlling air pollution at its source. See Section
101(a)(3) of the Clean Air Act. EPA also agrees with the commenters
that the States are to be given broad flexibility to select alternative
means to achieve the minimum Federal requirements established in the
Act by Congress and by EPA in the part 70 regulations and fully
supports State experimentation to achieve greater compliance with
environmental laws. Such flexibility and experimentation, however, must
be, as the commenters' acknowledge, within the bounds of the statutes
enacted by Congress and the implementing regulations promulgated by
EPA. It cannot cancel out the requirement that States must meet some
minimum Federal requirements as a condition of Federal approval of
their programs.
In the case of the Clean Air Act operating permits program, those
minimum Federal requirements are set forth in title V and the part 70
regulations. It is these requirements that EPA is insisting that the
State of Idaho meet as a condition of full approval of its title V
program. In short, EPA does not believe that the Idaho title V program
is within the statutory boundaries established by Congress or the
flexibility provided by the Clean Air Act because the Idaho Audit Act
would limit the enforcement authority Congress and EPA required States
to have as a condition of Federal approval.
Moreover, the commenters' argument that the Idaho Audit Act governs
areas of law traditionally committed to States in their role as
independent sovereigns--if taken to its logical conclusion--would mean
that a State could not be required to have any civil or criminal
penalty authority to get full title V approval. It is an argument that
goes to the validity of section 502(b)(5)(E) and 40 CFR 70.11
themselves and therefore is untimely in this context. As stated above,
Congress through title V, and EPA through the part 70 implementing
regulations, required States to satisfy certain minimum requirements
for enforcement authority as a condition of Federal approval of a Clean
Air Act operating permits program. By conditioning full approval of the
Idaho title V program on changes to the Idaho Audit Act or a
demonstration by the State satisfactory to EPA that the Idaho Audit Act
does not interfere with the enforcement requirements of title V, EPA is
simply seeking to assure that Idaho has the required enforcement
authorities before receiving Federal approval of its program. Cf.
Commonwealth of Virginia v. Browner, 80 F.3d 869, 880 (4th Cir. 1996)
(in rejecting Virginia's argument that requiring State to change its
judicial standing rules as a condition of title V
[[Page 64626]]
approval violated State's sovereignty, the Court stated: ``Even
assuming arguendo the accuracy of Virginia's assertion that its
standing rules are within the core of its sovereignty, we find no
constitutional violation because federal law `may, indeed, be designed
to induce state action in areas that would otherwise be beyond
Congress' regulatory authority,' '' citing FERC v. Mississippi, 456
U.S. 742, 766 (1982)).
The commenters also assert that EPA's use of its title V program
approval authority to ``force'' States to modify their audit privilege
and/or immunity legislation is contrary to Congress' general expression
of intent against the automatic use of audit reports for enforcement of
the Clean Air Act, as expressed in the Joint Explanatory Statement of
the Conference Committee Report for the 1990 Amendments. S. Conf. Rep.
101-952, 101st Cong. 2d Sess. 335, 348 (Oct. 26, 1990), reprinted in
Legislative History at 941-42, 955, 1798. The commenters further assert
that Idaho's decision to provide qualified audit immunity is consistent
with that Congressional intent.
As an initial matter, EPA disagrees that it is using the title V
approval process to ``force'' States to modify their audit legislation.
Instead, as stated above, EPA is simply analyzing to what extent the
audit privilege and/or immunity laws of a particular State compromise
the enforcement authorities required by Congress in title V, as
interpreted by EPA through the part 70 regulations, as a condition of
Federal approval of the State's operating permits program.
With respect to the issue of Congress' intent, the language from
the Conference Report cited by the commenters does not clearly express
a desire that audit reports not be used for enforcement of the Clean
Air Act requirements. Rather, the text expresses some general support
for the concept of auditing and a desire that the criminal penalties of
section 113(c) ``should not be applied in a situation where a person,
acting in good faith, promptly reports the results of an audit and
promptly acts to correct any deviation. Knowledge gained by an
individual solely in conducting an audit or while attempting to correct
deficiencies identified in an audit or the audit report should not
ordinarily form the basis for intent which results in criminal
penalties.'' (emphasis added). The legislative history merely indicates
that the circumstances involving violations discovered through an audit
report and voluntarily disclosed by a company will generally not meet
the requirements for criminal liability. Importantly, Congress did not
in any way suggest that a company which self-disclosed violations
discovered through an environmental audit should be immune from civil
penalties. In any case, when Congress amended the Clean Air Act in
1990, there were no audit privilege and/or immunity laws on the books
in any State. Any legislative history on auditing and enforcement from
that period must be read in light of that reality. EPA does not believe
Congress intended that the growth of environmental auditing--in itself
a laudable goal fully supported by EPA--come at the expense of the
enforcement of environmental laws.\6\ If Congress had wished to give
special status to self-disclosed violations detected during an
environmental compliance audit or to prohibit the use for general
enforcement purposes of audits conducted under the Clean Air Act and
EPA approved programs, Congress could have done so in the language of
the 1990 amendments. If anything, the legislative history of the Act is
evidence of Congress' intent that such incentives for audits should be
a basis for the exercise of prosecutorial discretion, and not a
legislative grant of immunity or protection from disclosure.
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\6\ That distinction is also reflected in ``Incentives for Self-
Policing; Discovery, Disclosure, Correction and Preventions of
Violations,'' 60 FR 66706 (December 22, 1995) (hereinafter, ``EPA's
Self-Disclosure Policy''), which offers significant incentives for
businesses to audit and self-disclose violations, while at the same
time retaining safeguards to ensure the protection of public health
and the environment.
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The commenters also argue that Congress intended to vest the States
with discretion in enforcing title V permit requirements and that the
part 70 regulations merely provide that penalties assessed under a
title V program must be ``appropriate'' to the violation. Nothing
requires a State to obtain a penalty for every violation or prohibits a
State from rewarding good actors who identify, disclose, and correct
violations, the commenters continue.
EPA agrees that a State is not required to collect a penalty for
every violation and is not precluded from using its discretion to
reward companies that conduct environmental audits and disclose and
correct any violations discovered through such an audit. EPA disagrees,
however, that the only inquiry for title V approval is whether a State
has authority to assess ``appropriate'' penalties. The part 70
regulations first state that civil and criminal fines must be
recoverable ``in a maximum amount of not less than $10,000 per day per
violation.'' 40 CFR 70.11(a)(3)(i)-(iii) (emphasis added).\7\ Section
70.11(c) then provides that ``[a] civil penalty or criminal fine
assessed, sought, or agreed upon by the permitting authority under
paragraph (a)(3) of this section shall be appropriate to the
violation.'' (emphasis added). By interpreting title V and part 70 to
require only that States have authority to assess ``appropriate''
penalties, the commenters are reading out of the regulations the
independent requirement that States have the authority to assess civil
and criminal penalties in a maximum amount of not less than $10,000 per
day per violation. Read together, 40 CFR 70.11(a)(3) and 70.11(c)
require that a State have authority to assess a civil or criminal
penalty of up to $10,000 per day per violation and that, in addition,
the penalty assessed in any particular case be ``appropriate'' to the
violation at issue. Thus, EPA agrees with the commenters that it is
within Idaho's discretion to impose a penalty less than the statutory
maximum if a lesser penalty is appropriate under the facts and
circumstances of a particular case or to determine that criminal or
civil prosecution is inappropriate under the facts and circumstances of
a particular case so long as the State has the authority to assess
penalties for each day of violation. The legislative history cited by
the commenters in support of their position is, in fact, consistent
with EPA's position on this issue. See Legislative History at 5815
(``states are not going to be required to impose these minimum fines of
$10,000 for permit violations. Instead, the bill is revised to make
clear that states shall ensure that they have the authority to impose
this. It is not mandated, it is authority.'') (emphasis added).
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\7\ One commenter appears to assert that a State need only have
the authority to assess ``appropriate'' criminal penalties. In doing
so, the commenter ignores the clear language of the part 70
regulations. Section 502(b)(5)(E) requires States to have authority
to ``recover civil penalties in a maximum amount of not less than
$10,000 per day for each violation, and provide appropriate criminal
penalties.'' In promulgating part 70, EPA determined that to provide
``appropriate criminal penalties'' for purposes of title V approval,
a State must have authority to issue criminal penalties in a maximum
amount of not less than $10,000 per day per violation. See 40 CFR
70.11(a)(3) (ii) and (iii). If the commenter believes that the
enforcement authorities enumerated in the part 70 regulations,
including the requirement for criminal penalty authority of up to
$10,000 per day per violation, are excessive or in any way
inconsistent with the statutory authorities, the commenter should
have challenged the part 70 regulations at the time of promulgation
in 1992.
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Several commenters stated that section 113(e) of the Clean Air Act
only sets forth penalty factors that EPA or a Federal court must
consider in imposing
[[Page 64627]]
civil penalties for noncompliance with the Act, that it has no bearing
on EPA's authority to approve or disapprove State title V programs, and
that nothing in section 113, title V, or part 70 authorizes EPA to
condition approval of a State's title V permit program on the State's
ability to consider penalty factors comparable to those set out in
section 113(e). The commenters further assert that, although section
113(e) is inapplicable, section 113(a) authorizes EPA in certain
defined circumstances to take appropriate action, namely, filing an
action against a facility where EPA believes the State's response was
inadequate. This back-up authority, and not wholesale invalidation of a
State's title V permits program, the commenters continue, is EPA's tool
for ensuring to its own satisfaction that State audit legislation does
not allow egregious Clean Air Act violations to go unsanctioned. In any
event, the commenters assert, the Idaho Audit Act does take the section
113(e) factors into account.
EPA agrees that the purpose of section 113(e) is, as the commenters
assert, to set forth factors which EPA and the Federal courts must
consider in assessing civil penalties under the Clean Air Act. EPA
believes, however, that the section 113(e) factors can also serve as
guidance in determining what civil penalty authority is minimally
necessary in a State title V program.
In order for a State to have the authority to assess penalties that
are ``appropriate'' to the violation in any particular case as required
by 40 CFR 70.11(c), a State must have, in addition to the authority to
assess a penalty of at least $10,000 per day per violation, the
authority to consider mitigating or aggravating factors. In enacting
section 113(e), Congress set forth factors it believed EPA and Federal
judicial and administrative courts should consider in determining an
appropriate penalty under the specific facts and circumstances before
it. Although EPA believes that the factors enumerated by Congress in
section 113(e) are the most fundamental, EPA believes that States may
consider other factors as well. To the extent that a State has
surrendered its ability to consider factors such as those set forth in
section 113(e), EPA believes that a State does not have adequate
authority, on a case-by-case basis, to collect penalties that are
``appropriate'' to the violation, as required by 40 CFR 70.11(c).
Industry commenters argue that, because the section 113(e) factors
do not apply to State programs, it must follow that Congress did not
prescribe factors a State must apply in assessing ``appropriate''
penalties under title V, and that a State must therefore be given full
approval as long as it possesses ``appropriate'' enforcement authority.
There are two flaws in this reasoning. The commenters misunderstand the
purpose of EPA's reference to section 113(e). As explained above, the
question for EPA at the program approval stage is not how the State
will exercise its enforcement discretion to assess penalties in any
particular case. Rather, it is whether the State has sufficient
authority to assess appropriate penalties in every case. Before
granting full approval to a title V program, EPA must ensure, first,
that the State has the general authority to assess penalties up to the
amounts specified in section 70.11. EPA must also ensure that the State
has authority to consider factors similar to those in section 113(e)
such that the penalty actually assessed in any case may be appropriate
to the violation. Because the immunity provisions of the Idaho Audit
Act preclude the State from considering the factors set forth in
section 113(e) or any other factors in determining an ``appropriate''
penalty in cases in which the source has disclosed and corrected
violations discovered in an environmental audit, Idaho lacks this
authority.
EPA also disagrees with the commenters' assertion that EPA's sole
remedy where EPA believes a State does not have adequate enforcement
authority is to take its own enforcement actions to address violations
in that State. Although EPA does file Federal actions where the State
fails to take enforcement action or where State action is inadequate to
address a particular violation, before approving a State title V
program EPA must also ensure that the State has demonstrated the
capacity to administer and fully enforce a delegated program as
required by law and regulation. If Federal action were the only remedy
for situations in which a State does not possess adequate enforcement
authority, there would have been no need for Congress to direct EPA to
promulgate rules setting forth minimum enforcement requirements for
Federal approval of a State operating permits program. See 59 FR 61825
(rejecting similar comment in acting on Oregon's title V program).
Finally, EPA disagrees with the commenters' contention that the
Idaho Audit Act does give consideration to the penalty factors set
forth in section 113(e). As EPA stated in the June 17, 1996, Federal
Register document and has reiterated above, the immunity provisions of
the Idaho Audit Act prevent the State from considering all but one of
the factors set forth in section 113(e) of the Clean Air Act. For
example, the Idaho Audit Act precludes the assessment of civil
penalties for violations voluntarily disclosed in an environmental
audit even if the violations resulted in serious harm or risk of harm
to the public or the environment or resulted in substantial economic
benefit to the violator. To the extent the Idaho Audit Act prevents
consideration of these factors, EPA believes that Idaho has surrendered
its authority to assess appropriate penalties as required by section
502(b)(5)(E) of the Clean Air Act and 40 CFR 70.11. See 61 FR 30572.
Several commenters stated that EPA's approach on State audit
privilege and/or immunity laws is bad policy and not supported by
empirical evidence. The commenters expressed strong support for
environmental auditing as a means of obtaining compliance with
increasingly complex environmental requirements. These commenters argue
that EPA's reaction against such audit statutes is a ``knee-jerk''
reaction that ignores the potentially huge benefits that these laws
offer. EPA has wrongly concluded, the commenters continue, that the
existence of a limited and qualified affirmative defense to penalties
for violations discovered through environmental audits and protection
for information in audit reports weakens Idaho's authority to enforce
the law or to ensure compliance and that the evidence to date, both in
Idaho and in other States with such laws, shows in fact that audit
privilege and/or immunity legislation encourages self-correction and
increased compliance. At the same time, the commenters argue, EPA has
not cited any specific instance in which the Idaho Audit Act or some
other State audit privilege and/or immunity law has compromised or
inhibited enforcement of the Clean Air Act or a title V permit
program.8
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\8\ One commenter noted that private industry has been in the
forefront of environmental auditing, and that governmental agencies
that are also subject to environmental regulation have in some
instances lagged behind in implementing auditing programs. This
commenter went on to express concern that EPA has used the title V
approval process as a mechanism to limit environmental auditing when
Federal and State agencies are not conducting environmental audits.
EPA agrees that private industry has played an important role in the
development and implementation of environmental auditing programs
and that government entities should follow the example of many
private industries in conducting environmental audits.
---------------------------------------------------------------------------
EPA has expressed strong support for incentives which encourage
responsible companies to audit to prevent noncompliance and to disclose
and correct any violations that do occur. See, e.g., EPA's Self-
Disclosure Policy.
[[Page 64628]]
The issue involved in this Federal Register action, however, is not
whether environmental auditing is good or bad policy. Rather, the issue
is whether the Idaho Audit Act, in offering immunity and protection
against compelled disclosure to companies conducting environmental
audits, so deprives the State of its authority to take enforcement
action for violations of title V requirements that the State does not
have the necessary authority required for full title V approval.
Moreover, EPA believes that it is premature at this point to expect
significant empirical evidence to document whether environmental audit
privilege and/or immunity laws enhance or impede environmental
compliance. Most of the State audit statutes, such as Idaho Audit Act,
are little more than one year old and only a few States have issued
permits under approved title V programs. In any event, EPA is aware of
at least one on-going environmental enforcement action in a State with
an audit privilege and/or immunity law in which the audit privilege
appears to be interfering with prosecutors' efforts to obtain and
utilize certain evidence.9
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\9\ The confidentiality prerequisites that attach to all on-
going enforcement actions prevent the Agency from revealing
additional details at this time.
---------------------------------------------------------------------------
The commenters go on to argue that the reasoning set forth in the
April 5 Title V Memorandum and the June 17, 1996, Federal Register
document could have far-reaching and unintended effects on the
relationship between EPA and States in the implementation of the Clean
Air Act and other environmental laws such as approvals of State
Implementation Plans and State programs under the Clean Water Act and
Resource Conservation and Recovery Act.
EPA agrees that the rationale behind the April 5 Title V Memorandum
and EPA's action on the Idaho title V program has implications for
other Federal programs delegated to the States. Because of that, the
Agency has for some months been analyzing the effects of State audit
privilege and/or immunity laws on enforcement authorities under the
Clean Water Act, the Resource Conservation and Recovery Act, and other
statutes. The rationale behind the April 5 Title V Memorandum and EPA's
action on the Idaho title V program as it relates to the Idaho Audit
Act, however, is dictated not by political or policy considerations,
but rather by statutes and regulations that were finalized after public
notice and comment.
Several commenters also stated that EPA's proposed interim approval
of Idaho's program based on the Idaho Audit Act is inconsistent with
existing EPA and Department of Justice enforcement policies, which
reflect the appropriateness of limiting enforcement discretion. The
commenters point to ``Factors in Decisions on Criminal Prosecutions for
Environmental Violations in the Context of Significant Voluntary
Compliance or Disclosure Efforts by the Violator,'' DOJ, July 1, 1991;
``The Exercise of Investigative Discretion,'' EPA, January 12, 1994;
``Policy on Flexible State Enforcement Responses to Small Community
Violations'' EPA, November 1995 (``EPA Policy on Small Communities'')
10; ``Policy on Compliance Incentives for Small Businesses,'' EPA,
May 1996; and EPA's Self-Disclosure Policy.
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\10\ One commenter describes EPA's ``Policy on Flexible State
Enforcement Responses to Small Community Violations'' (hereinafter,
``EPA's Policy on Small Community Violations'') as one that
``encourages states to give small communities an unqualified waiver
of civil penalties--regardless of any economic benefit or the
seriousness of the violation--as an incentive to compliance.'' EPA
disagrees with this characterization. Although the policy does
encourage States to provide small communities an incentive to
request compliance assistance by waiving all or part of a penalty
under certain circumstances, it does not encourage States to give
small communities ``an unqualified waiver of civil penalties,'' as
the commenter asserts. For example, the EPA Policy on Small
Community Violations is directed at a very narrowly defined class of
potential violators--non profit, government entities with fewer than
2,500 residents that are unable to satisfy all applicable
environmental mandates without the State's compliance assistance.
The policy directs States to assess a small community's good faith
and compliance status before granting any relief from penalties and
identifies a number of factors that a State should consider in
determining whether relief from civil penalties is appropriate in
the particular circumstances. Contrary to the commenter's assertion,
EPA's Policy on Small Community Violations does direct a State to
consider the seriousness of the violation. See EPA's Policy on Small
Community Violations, page 4. Although the policy does not direct
the State to consider economic benefit in determining the
appropriate enforcement response, the policy is available only to
those small communities that are financially unable to satisfy all
applicable environmental mandates without the State's compliance
assistance.
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There is an important distinction between the policies cited by the
commenters, which adopt an ``enforcement discretion'' approach, and the
Idaho Audit Act. EPA and the Department of Justice have announced
policies guiding the exercise of their enforcement discretion under
certain narrowly defined circumstances, while preserving the underlying
statutory and regulatory authority. State audit privilege and/or
immunity laws, such as the Idaho Audit Act, by contrast, constrain
enforcement discretion as a matter of law, impermissibly surrendering
the underlying statutory and regulatory enforcement authorities
required for Federal approval of State programs.
Several commenters stated that EPA's proposed action on the Idaho
program is inconsistent with several previous title V approvals where
audit privilege and/or immunity legislation has not posed a bar to full
approval. As examples of previous title V approvals which the
commenters believe are inconsistent with EPA's proposed action on the
Idaho program, as it relates to the Idaho Audit Act, the commenters
point to EPA's action on the Oregon, Kansas, and Colorado title V
programs. Relying on the recent Ninth Circuit decision in Western
States Petroleum Association v. EPA, 87 F.3d 280 (9th Cir. 1996)
(``WSPA''), the commenters state that, where EPA is departing from a
prior course of action, more is required of the Agency than conclusory
statements concerning the potential impact of the Idaho Audit Act on
the State's title V enforcement authority. Instead, the commenters
argue that EPA must provide a basis for deviating from its earlier
approaches in Oregon, Kansas, and Colorado.
As an initial matter, EPA notes its action on Idaho's title V
program is consistent with its approach with respect to the Texas title
V program, 61 FR 32693, 32696-32699 (June 25, 1996) (final interim
approval), and the Michigan title V program. 61 FR 32391, 32394-32395
(June 24, 1996) (proposed interim approval). Moreover, EPA has notified
the States of Arizona, Florida and Ohio that audit privilege and/or
immunity laws that these States have enacted, or were contemplating
enacting, could interfere with the enforcement requirements of title V
and part 70.
With respect to the three programs cited by the commenters as
inconsistent with EPA's proposed action on the Idaho program, EPA is
still in the process of reviewing the audit privilege and/or immunity
statutes in Oregon, Kansas, and Colorado, and their effects on the
title V enforcement requirements in those States, in order to determine
whether EPA acted inconsistently in approving those programs. If EPA
determines that it acted inconsistently in acting on those programs,
EPA intends to take appropriate action to follow the WSPA Court's
mandate that EPA act consistently or explain any departures.
Finally, the commenters challenge the April 5 Title V Memorandum
itself arguing that the memorandum imposes requirements on EPA approval
of a State
[[Page 64629]]
operating permits program in addition to those required by section
502(b)(5)(E) of the Act and the part 70 rules. Because the April 5
Title V Memorandum sets additional substantive and binding standards
for approval of State title V operating permits programs not included
in the part 70 regulations, the commenters continue, the memorandum is
a rule disguised as guidance and must be promulgated in accordance with
the Administrative Procedures Act. This requires, among other things,
public notice and comment.
EPA disagrees. The April 5 Title V Memorandum does not, as the
commenters assert, ``purport to change fundamentally the requirements
in section 70.11 by adding provisions that (1) effectively prohibit a
state from adopting an audit protection or immunity law and (2) impose
at least four new penalty criteria.'' Rather, the memorandum simply
recounts and reiterates existing statutory and regulatory requirements
for enforcement authority under the title V program and shows how audit
privilege and/or immunity laws may prevent a State from meeting those
requirements. It creates no new ``substantive and binding standards''
for approval of title V programs, and therefore is not subject to
notice and comment rulemaking of the Administrative Procedures
Act.11 Moreover, in explaining why the Idaho Audit Act precludes
full approval, EPA is relying on the requirements of title V and part
70 themselves, and not the April 5 Title V Memorandum. Moreover, EPA's
application of the title V and part 70 enforcement requirements to the
specific circumstances before EPA in the case of the Idaho Audit Act is
subject to notice and comment rulemaking.12
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\11\ One commenter also stated that EPA expressly recognized in
its earlier approval of the Oregon title V program that EPA would
have to use rulemaking to modify its part 70 rules before EPA could
prohibit States from adopting audit privilege and/or immunity laws.
The commenter misstates the Agency's position. As an initial, the
Oregon audit statute, Oregon Revised Statute 468.963, contains only
an audit privilege and does not contain an immunity provision. In
proposing interim approval of the Oregon title V program, EPA stated
it was in the process of developing a national position regarding
EPA approval of environmental programs in States that have
environmental audit privileges, and that, therefore, EPA proposed to
take no action on the Oregon audit provision in the context of the
Oregon title V approval. EPA noted, moreover, that it might consider
such a privilege grounds for withdrawing program approval under 40
CFR 70.10(c) in the future if EPA later determined that the Oregon
audit provision interfered with Oregon's enforcement
responsibilities under title V and part 70. 59 FR 47105, 47106
(September 14, 1994). During the public comment period on EPA's
proposal, one commenter stated that EPA's suggestion that a State
audit privilege could be grounds for interim approval or withdrawal
was bad policy and that Oregon's audit privilege statute was
consistent with the Clean Air Act. In addition to responding to the
merits of the comment, EPA stated that the commenter's concerns were
premature because, as the commenter acknowledged, EPA had not
proposed to take any action on Oregon's environmental audit
privilege statute in the context of final interim approval of the
Oregon program. EPA further stated that any such concerns about
EPA's position on the Oregon audit privilege statute would be
properly made if EPA later proposed to withdraw Oregon's title V
approval based on Oregon's audit privilege or if EPA ``revised part
70 to prohibit environmental audit provisions such as Oregon's.'' 59
FR 61820, 61824 (December 2, 1994). EPA did not say in that Federal
Register document that a rulemaking would be required in order for
the Agency to disapprove a title V program in a State with an
environmental audit privilege and/or immunity statute.
\12\ EPA also disagrees with one commenter's assertion that the
Congressional review provisions of Subtitle E of the Small Business
Regulatory Enforcement Fairness Act of 1996, P.L. 104-121 (SBREFA),
require EPA to submit the April 5 Title V Memorandum to Congress.
EPA does not believe that the April 5 Title V Memorandum is subject
to Congressional review under SBREFA because it is not a rule and it
does not substantially affect the rights or obligations of a
nonagency party. Even if the Memorandum were subject to review, EPA
has not relied on that Memorandum as a basis for this action, but
has instead relied on the requirements of title V and part 70.
Therefore, any procedural defect with respect to the April 5 Title V
Memorandum is irrelevant to the legal sufficiency of this action.
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(B) Effect of the immunity provisions of the Idaho Audit Act on
Idaho's ability to issue emergency orders and seek injunctive relief.
In the June 17, 1996, Federal Register document, EPA expressed concern
that the Idaho Audit Act could be interpreted to interfere with the
State's authority to issue emergency orders and seek injunctive relief,
as required by section 502(b)(5)(E) and 40 CFR 70.11(a) (1) and (2).
First, EPA was concerned with the subsection of the immunity provision
of the Idaho Audit Act stating:
Except as specifically provided, this section does not affect
any authority of an environmental agency to require remedial action
through a consent order or action in district court or to abate an
imminent hazard, associated with the information disclosed in any
voluntary disclosure of an environmental violation.
Idaho Code 8-809(7). EPA queried what might be included within the
``Except as specifically provided'' clause of that provision and
whether the provision specifically authorizing persons to enter into
voluntary settlements (Idaho Code section 9-809(4)) could be
interpreted to mean that Idaho would be prevented from issuing a
unilateral order or seeking a court order requiring an owner or
operator to correct a violation on a specified schedule, at least where
the violation did not involve an imminent hazard. 61 FR 30570, 30572.
In the comments jointly submitted by IDEQ and the Idaho Attorney
General, Idaho stated that no specific provision of the Idaho Audit Act
affects the State's authority to issue emergency orders or seek
injunctive relief and that these authorities are therefore
uncompromised by the Idaho Audit Act. Several of the other commenters
agreed with the Attorney General that the immunity provision of the
Idaho Audit Act only prohibits the State from recovering civil and
criminal penalties from an owner or operator who discovers violations
during a voluntary audit and meets the other conditions of the law.
EPA remains concerned regarding why the Idaho legislature included
the ``Except as specifically provided'' clause in the provision
affirming the State's continued ability to issue emergency orders and
seek injunctive relief. EPA is willing to defer, however, to the
opinion of the Idaho Attorney General's office that no provision of the
Idaho Audit Act does specifically create an exception to the State's
ability to issue emergency orders and seek injunctive relief. If,
however, during program implementation, EPA determines that the Idaho
Audit Act does compromise the State's authority to issue emergency
orders and seek injunctive relief as required by title V and part 70,
EPA will consider this grounds for withdrawing program approval in
accordance with 40 CFR 70.10(c).
Second, EPA expressed concern with the subsection of the immunity
provision of the Idaho Audit Act stating that ``appropriate efforts to
correct the noncompliance'' for purposes of immunity ``may be
demonstrated by the submittal of a permit application or equivalent
document within a reasonable time.'' Idaho Code 9-809(3). EPA was
concerned that this subsection appeared to allow an owner or operator
to continue an unlawful activity for which a permit was required
without being subject to penalty or the State's emergency authority or
injunctive relief.
The comments submitted by the Idaho Attorney General do not address
the effect of Idaho Code 9-809(3) on the State's ability to assess
penalties against an owner or operator for the failure to obtain a
permit. EPA therefore continues to believe that this issue must be
addressed as a condition of full approval. See Section II.A.2.c.i.A
above. The Idaho Attorney General did, however, directly address EPA's
concern that Idaho Code 9-809(3) might also preclude the State from
seeking an emergency order or injunctive relief against an owner or
operator who had failed to obtain a permit. The Attorney General
unequivocally stated that the Idaho Audit Act does not under any
[[Page 64630]]
circumstances alleviate the owner's or operator's responsibility to
correct any violations identified in an audit or restrict the State's
ability to take an action to abate any noncompliance. Other commenters
agreed with this interpretation. EPA is willing to defer to the opinion
of the Idaho Attorney General on this issue, subject to the
qualification discussed above that EPA will closely monitor the impact
of the Idaho Audit Act on the State's ability to issue emergency orders
and obtain injunctive relief during program implementation.
(C) Additional concerns regarding the effect of the disclosure
provisions of the Idaho Audit Act on the State's enforcement authority.
Several of the commenters, including IDEQ and the Idaho Attorney
General, disagreed with EPA's statement that the Idaho Audit Act
contains a privilege for environmental audit reports which
impermissibly interferes with the enforcement requirements of title V
and part 70. The commenters first take issue with EPA's
characterization of Idaho Code 9-804 as a ``privilege'' for
environmental audit reports arguing that in Idaho such a privilege on
the disclosure of information in a judicial action can only be created
by constitution, a statute implementing a constitutional right, or by
rules of the Idaho Supreme Court. See Idaho Rules of Evidence, Rule
501; Idaho Code 9-808. EPA has again reviewed Idaho Code 9-804 and, on
further reflection, agrees that the Idaho statute does not create a
true evidentiary privilege--that is, a privilege to refuse to disclose
an environmental audit report in a judicial action. Rather, the statute
prohibits any State agency from requiring an owner or operator to
disclose the contents of an environmental audit report to the State
agency.13 EPA accurately described the effect of the Idaho Audit
Act in its June 17, 1996, Federal Register document, but incorrectly
characterized it as a ``privilege.'' 14
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\13\ One commenter interprets Idaho Code 9-804 as not preventing
the State from obtaining environmental audit reports, but only
preventing the State from disclosing to the public environmental
audit reports that are voluntarily disclosed to the State. EPA
disagrees. Idaho Code 9-804 clearly prevents the State from
requiring an owner or operator to disclose an environmental audit
report to the State. Section 9-340 additionally prevents the State
from disclosing to the public an environmental audit report that has
been voluntarily provided by an owner or operator to the State.
\14\ EPA notes that the Idaho legislature also used the term
``privilege'' to describe the intent of the Idaho Audit Act. See
Idaho Code 9-802(2) (``the legislature of the state of Idaho
recognizes that an environmental audit privilege is necessary'').
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The commenters next assert that the Idaho Audit Act does not
interfere with IDEQ's authority to seek or use an environmental audit
report as evidence in a judicial action because the Idaho Audit Act
does not create an evidentiary privilege. Although the Idaho Audit Act
is a prohibition on the compelled disclosure of information and not a
true evidentiary privilege, EPA still believes that the disclosure
provisions of the Idaho Audit Act impermissibly interfere with the
enforcement requirements of title V and part 70. The commenters do not
controvert the basic fact that the Idaho Audit Act prevents a State
agency, such as IDEQ, from requiring an owner or operator to produce an
environmental audit report to the State agency under the State's
general information gathering authority. Where an audit report produces
evidence of noncompliance, the Idaho Audit Act would prevent the State
from reviewing that evidence, short of filing an enforcement action in
court, to determine whether the violation will be corrected and
compliance assured. When a case is far enough advanced that litigation
is necessary, little flexibility remains for assuring that compliance
is achieved in a timely and efficient manner. Similarly, where an
environmental audit reveals evidence of criminal intent on the part of
managers or employees, Idaho would be barred from obtaining and using
such information unless Idaho otherwise has sufficient information to
first file an enforcement action in State court. Although, as the Idaho
Attorney General points out, a source must voluntarily disclose the
relevant portions of the audit report in order to obtain immunity from
civil or criminal penalties, an owner or operator can elect not to
disclose violations in an audit report in the hopes that the violations
will not otherwise come to the attention of the State agency.
Similarly, a facility could elect to disclose the fact of a violation,
but not the related evidence of whether the violation was intentional.
The decision of whether to disclose all or any part of an environmental
audit report to the State rests solely with the owner or operator. EPA
therefore believes that, although the Idaho Audit Act does not create a
true evidentiary privilege, it still so interferes with the State's
information gathering authority as to deprive the State from obtaining
appropriate criminal penalties and assuring compliance with the Clean
Air Act, as required by section 502(b)(5)(E) of the Act and 40 CFR
70.11.
One commenter also stated that adequate title V enforcement
authority cannot depend on access to voluntarily prepared audit
reports. If such were the case, the commenter reasoned, State
regulators would necessarily lack adequate enforcement authority over
those entities which do not conduct audits voluntarily.
EPA agrees that access to voluntarily prepared audit reports is not
per se a prerequisite for adequate enforcement authority for title V
approval. However, such access is important if the report exists and it
contains information on criminal intent or whether the violation has
been promptly corrected. The lack of such access can adversely affect
the adequacy of enforcement authority, at least with respect to the
ability to enforce against criminal violations and to verify
compliance.
One commenter also stated that State audit protection legislation
does not inhibit whistle blowers but instead merely prohibits
unauthorized disclosure of an audit report because whistle blowers are
free to disclose any ``non-audit'' information to support their
allegations without fear of violating the laws.
As an initial matter, EPA notes that this concern is irrelevant in
EPA's action on Idaho's title V program. To EPA's knowledge, neither
the Idaho Audit Act nor any other provision of Idaho law specifically
restricts the information that a whistle blower may disclose to a State
agency, and EPA therefore did not raise this as a concern in proposing
action on Idaho's title V program.
The commenter appears to be responding to an issue discussed in the
April 5 Title V Memorandum. In that memorandum, EPA expressed concern
with State audit privilege and/or immunity statutes that impose special
sanctions upon persons who disclose privileged information. See April 5
Title V Memorandum, pp. 5-6. Although irrelevant to action on Idaho's
title V program, EPA believes, as stated in the memorandum, that the
Clean Air Act provision which gives explicit protection to whistle
blowers makes no distinctions with respect to the source of the
information relied upon by the whistle blower. EPA believes that it is
inconsistent with section 322 of the Clean Air Act for States to remove
audit reports from the universe of information which employees may rely
upon in reporting violations to local or State authorities.
ii. Comments that the Idaho Audit Act poses a bar to full title V
approval. EPA received three comment letters from environmental and
public interest groups agreeing with that the Idaho Audit Act is
incompatible with the
[[Page 64631]]
enforcement requirements of title V and part 70. Several of these
organizations also argued that the prohibition against the compelled
disclosure of audit reports in the Idaho Audit Act ``is incompatible
with the [Clean Air Act's] mandate for public participation in
permitting.''
EPA agrees that the prohibition against compelled disclosure
contained in the Idaho Audit Act is an unfortunate hindrance to public
access to potentially useful and important information affecting public
health and the environment. EPA does not believe, however, that the
Idaho statute interferes with the public access requirements of title V
and part 70 (as opposed to the enforcement requirements) because, by
its terms, the Idaho statute does not allow documents and other
information which must be collected, developed, and reported pursuant
to Federal and State law to be withheld from the State or the public.
See Idaho Code 9-805. As noted in the October 27, 1995, Federal
Register document proposing action on Idaho's title V program, EPA
believes that Idaho's general statutory and regulatory confidentiality
provisions allow far more information to be kept confidential from the
public than is authorized under part 70 and section 114 of the Clean
Air Act. See 60 FR 54999. EPA has required, as a condition of full
approval, that Idaho revise these provisions or demonstrate to EPA's
satisfaction that they meet the requirements of title V and part 70.
EPA does not believe, however, that the Idaho Audit Act independently
interferes with the title V requirements for public access to
information.
One commenter also stated that the Idaho Audit Act precludes
interim approval and requires disapproval. Section 70.4(d)(3)(vii)
states that to qualify for interim approval the State must have
``authority to enforce permits, including the authority to assess
penalties against sources that do not comply with their permits or with
the requirement to obtain a permit.'' EPA believes that to qualify for
interim approval a State must have basic authority to enforce permits
and the requirement to obtain a permit, including the authority to
assess penalties, during the interim approval period. EPA has stated,
however, that interim approval can be appropriate, for example, even
though a permitting authority does not have the authority to assess
civil penalties at the full $10,000 per day per violation required by
section 70.11(a)(3)(i) or does not have any criminal authority. See
Memorandum from John S. Seitz, Director, Office of Air Quality Planning
and Standards, to Regional Air Division Directors, entitled ``Interim
Title V Approval Issues,'' dated August 2, 1993. Similarly, EPA has
granted or proposed to grant interim approval to States that have
affirmative defenses to liability that EPA believed exceeded the
defenses allowed as a matter of Federal law, and thus must be revised
as a condition of full approval, as long as the State has the general
authority to assess civil penalties for violations. See 59 FR 61824-
61825 (conditioning full approval of Oregon's title V program on
changes to or clarifications regarding the effect of Oregon's criminal
bypass statute) 15; 61 FR 32394 (proposing to condition full
approval of Michigan's title V program on revisions to or
clarifications regarding the effect of its startup, shutdown, and
malfunction provisions). EPA believes that the situation in Idaho is
similar in that the State of Idaho does have authority to assess civil
and criminal penalties for violations of title V permit requirements in
many cases. The Idaho Audit Act creates a limited, although, EPA
believes, impermissible, exception to that authority. If, during the
interim approval period, Idaho's enforcement authority proves
inadequate to address a particular violation, EPA always has concurrent
authority to enforce permit terms and conditions and the requirement to
obtain a permit. See section 113 of the Act (civil and criminal
liability provisions under the Clean Air Act). EPA therefore does not
believe that the Idaho Audit Act precludes interim approval.
---------------------------------------------------------------------------
\15\ Oregon ultimately established to EPA's satisfaction that
its affirmative defense to criminal liability for upsets and
bypasses was consistent with Federal law and thus received full
approval of its program. See 60 FR 50106, 50107 (September 28,
1995).
---------------------------------------------------------------------------
Two commenters did not urge disapproval, but instead commented
that, because the Idaho Audit Act contains a sunset provision by which
it expires at the end of 1997, the Idaho legislature must address
renewal of the law in its next regular session at the beginning of
1997. The commenters therefore argue that EPA should not grant Idaho
the full two-year interim approval period in which to address this
issue, but should instead give Idaho only until April 15, 1997, which
is presumably the date by which the commenters believe the 1997
legislative session will have concluded. Although EPA does have the
authority to allow States less than two years to correct interim
approval issues, EPA has thus far allowed all States the full two years
within which to address the initial interim approval issues. EPA
believes that Idaho should receive the same benefits as other
permitting authorities in having the full two years to respond to this
initial interim approval issue. EPA has identified 27 other interim
approval issues that the State of Idaho must address during the two
year interim approval period and proposed to give Idaho the full two
years to address these other issues. EPA received no other comments on
this proposal. Even if Idaho could address the interim approval issue
relating to the Idaho Audit Act in less than two years, EPA believes
that having the same interim approval period for all of the 28
identified interim approval issues will lessen the administrative
burden on the State.
iii. Summary. In summary, based on the opinion of the Idaho
Attorney General, EPA is satisfied that the immunity provisions of the
Idaho Audit Act do not compromise the State's ability to issue
emergency orders and seek injunctive relief to assure compliance with
title V requirements. EPA will closely monitor the Idaho title V
program during implementation to assure that this is the case. If,
during program implementation, EPA determines that the Idaho Audit Act
does compromise the State's authority to issue emergency orders and
seek injunctive relief as required by title V and part 70, EPA will
consider this grounds for withdrawing program approval in accordance
with 40 CFR 70.10(c).
EPA continues to believe, however, that the immunity provisions as
well as the disclosure provisions of the Idaho Audit Act impermissibly
interfere with the enforcement authorities required for full title V
approval. Accordingly, Idaho must revise both the immunity and
disclosure provisions of the Idaho Audit Act, Idaho Code title 9,
chapter 8, to ensure that it does not interfere with the requirements
of section 502(b)(E)(5) of the Clean Air Act and 40 CFR 70.11
identified in the June 17, 1996, Federal Register document and this
notice for adequate authority to pursue civil and criminal penalties
and otherwise assure compliance. Alternatively, Idaho must demonstrate
to EPA's satisfaction, through an Attorney General's opinion that these
required enforcement authorities are not impaired by the Idaho Audit
Act.
B. Section 112(l) Submittal
There were no comments on EPA's proposed delegation of the NESHAPs
as adopted by Idaho and as they apply to title V sources and EPA's
proposed
[[Page 64632]]
approval of a streamlined mechanism for future NESHAP delegations.
III. Final Action
A. Title V
EPA is promulgating final interim approval of the operating permits
program submitted by Idaho on January 20, 1995, and supplemented on
July 14, 1995, September 15, 1995, and January 12, 1996. The State must
make the following changes to receive full approval:
1. Applicability
Idaho must demonstrate to EPA's satisfaction by the end of the
interim approval period that its program covers all sources required to
be permitted under part 70. EPA has proposed a change to the part 70
rules that would make the definition of ``major source'' in 40 CFR 70.2
consistent with the August 7, 1980, limitation in the Idaho rule. See
59 FR 44460, 44527 (August 29, 1994). However, EPA has not yet taken
final action on that proposed change. If EPA finalizes its proposed
revision to the definition of ``major source'' before the end of
Idaho's interim approval period, Idaho will not be required to revise
its definition of ``major facility'' to delete the ``August 7, 1980''
limitation. In any case, however, Idaho must revise the reference to
``fugitive emissions'' in IDAPA 16.01.01.008.14.h.iii to refer instead
to any ``air pollutant'' and must otherwise make any changes needed to
demonstrate that its program covers all required sources.
2. Temporarily Exempt Sources
Idaho must demonstrate to EPA's satisfaction that the application
and permitting deadlines for Phase II sources and sources with solid
waste incineration units meet the requirements of part 70.
3. New Sources
Idaho must demonstrate to EPA's satisfaction that all sources in
Idaho applying for a title V permit for the first time are required to
submit a permit application within 12 months after becoming subject to
title V.
4. Option To Obtain Permit
Idaho must demonstrate to EPA's satisfaction that it has the
authority required by 40 CFR 70.3(b)(3).
5. Fugitive Emissions
Idaho must address the requirement of 40 CFR 70.3(d) that fugitive
emissions from title V sources be included in permit applications and
permits in the same manner as stack emissions regardless of whether the
source category in question is included in the list of sources
contained in the definition of major source.
6. Insignificant Activities
Idaho must define by regulation or guidance the terms used in IDAPA
16.01.01.317, provide documentation that the units and activities are
appropriate for inclusion as insignificant, assure that all activities
that are insignificant based on size or production rate be listed in
each permit, and remove any director's discretion provision that would
allow the State to determine that an activity not previously reviewed
by EPA is insignificant (except for clearly trivial activities).
7. Permit Content
Idaho must eliminate the qualification in IDAPA 16.01.01.322.01 and
16.01.01.322.03 that requires inclusion of only those requirements that
are ``identified in the application'' at the time of permit issuance
because this restriction impermissibly relieves the permitting
authority from including in a permit applicable requirements that are
not identified in a permit application. Alternatively, Idaho must
otherwise demonstrate to EPA's satisfaction that it has the authority
to include in a title V permit all applicable requirements consistent
with 40 CFR 70.6.
8. Exemption From Applicable Requirements
Idaho must eliminate the provision in IDAPA 16.01.01.325.01.c that
allows Idaho to exempt sources from otherwise applicable requirements
or, alternatively, must demonstrate to EPA's satisfaction that this
provision is consistent with the requirements of part 70.
9. Emissions Trading
Idaho must demonstrate that its emissions trading provisions meet
the requirements of 40 CFR 70.4(b)(12)(iii) and 40 CFR 70.6(a)(8). EPA
also recommends that the requirement of IDAPA 16.01.01.322.05 that a
company contemporaneously record in a company log a change from one
trading scenario to another should be specifically referred to in the
list of requirements a source must meet in IDAPA 16.01.01.383.03 in
order to make a ``Type II'' permit deviation.
10. Alternative Emission Limits
Idaho must demonstrate to EPA's satisfaction that its operating
permit program meets the requirement of 40 CFR 70.6(a)(1)(iii) that a
permit with an allowable alternative emission limit contain provisions
to ensure that any resulting emissions limit has been demonstrated to
be quantifiable, accountable, enforceable and based on replicable
procedures.
11. Reporting of Permit Deviations
Consistent with 40 CFR 70.6(a)(3)(iii)(B), the Idaho program must
be revised to require prompt reporting of deviations from all permit
requirements, not just those deviations attributable to startup,
shutdown, scheduled maintenance, upset, or breakdown.16
---------------------------------------------------------------------------
\16\ The Idaho regulations use the term ``permit deviation'' to
refer to certain changes authorized by the permit flexibility
provisions contained in 40 CFR 70.6(9) and (10) and section
502(b)(10) of the Act. See IDAPA 16.01.01.383. The part 70
regulations use the term ``permit deviation'' to refer to permit
violations. See 40 CFR 70.6(a)(3)(iii)(B). This notice uses the term
``permit deviation'' in the same way as the part 70 regulations.
---------------------------------------------------------------------------
12. Acid Rain Provisions
Idaho must demonstrate to EPA's satisfaction that its program
includes the provision of 40 CFR 70.6(a)(4)(i) that no permit revision
is required for increases in emissions that are authorized by
allowances acquired pursuant to the acid rain program, provided that
such increases do not require a permit revision under any other
applicable requirement.
13. State-Only Enforceable Requirements
Idaho must demonstrate to EPA's satisfaction that its regulations
define ``State Only'' requirements in a manner consistent with the
provisions of 40 CFR 70.6(b)(2), namely, that no requirement that is
required under the Act or under any of its applicable requirements may
be ``State Only.''
14. General Permits
Idaho must revise its regulations authorizing general permits to be
consistent with 40 CFR 70.6(d), including provisions that: (a) Require
the permitting authority to grant the conditions and terms of a general
permit to sources that qualify; (b) require specialized general permit
applications to meet the requirements of title V; and (c) govern
enforcement actions for operation without a permit if the source is
later determined not to qualify for the conditions and terms of the
general permit. As discussed above, EPA now believes that IDAPA
16.01.01.335.05, which provides that the issuance of authorization to
operate under a general operating permit is a final agency action for
purposes of administrative and judicial review, is consistent with the
requirements of 40 CFR 70.6(d)(2) and
[[Page 64633]]
no revisions to this provision are required.
15. Operational Flexibility
Idaho must address to EPA's satisfaction the requirement in 40 CFR
70.4(b)(12) that the permitting authority attach a copy of the notice
of a permitted operational change to the relevant permit.
16. Off-Permit Provisions
Idaho must revise its regulations to require a source to record an
off-permit change in a log at the facility on the same day that the
change is made.
17. Permit Renewals
Idaho must revise its regulations to ensure that an application for
a permit renewal will not be considered timely if it is filed more than
18 months before permit expiration.
18. Completeness Determination
Idaho must revise its regulations to ensure that applications will
be deemed complete within 60 days of receipt for all sources, or
establish to EPA's satisfaction that no sources will in fact fall
within the exception of IDAPA 16.01.01.361.02.a.ii.
19. Administrative Amendments
Idaho must delete from the list of changes in IDAPA
16.01.01.384.01.a that may be accomplished by administrative amendment
the following categories: compliance orders (IDAPA
16.01.01.384.01.a.vi) and applicable consent orders, judicial consent
decrees, judicial orders, administrative orders, settlement agreements,
and judgments (IDAPA 16.01.01.384.01.a.vii).
20. Minor Permit Modifications
Idaho must revise its rules to prohibit the issuance of any permit
until after the earlier of expiration of EPA's 45-day review period or
until EPA has notified the permitting authority that EPA will not
object to issuance of the permit modification.
21. Group Processing of Minor Permit Modifications
Idaho must delete the ``director's discretion'' provision of IDAPA
16.01.01.385.07.b.iv or make a showing consistent with 40 CFR
70.7(e)(3)(i)(B) for alternative thresholds. In addition, as with
Idaho's procedures for minor modifications, Idaho must revise its rules
to prohibit the issuance of any permit until after the earlier of
expiration of EPA's 45-day review period or until EPA has notified the
permitting authority that EPA will not object to issuance of the permit
modification.
22. Reopenings
Idaho must revise its regulations to require that the EPA notice
contain no more information than that specified by 40 CFR 70.7(g)(1).
23. Public Participation
Idaho must demonstrate to EPA's satisfaction that its restrictions
on the release to the public of permits, permit applications, and other
related information under its laws governing confidentiality do not
exceed those allowed by 40 CFR 70.4.(b)(3)(viii) and section 114(c) of
the Clean Air Act.
24. Permits for Solid Waste Incineration Units
Idaho must ensure that no permit for a solid waste incineration
unit may be issued by an agency, instrumentality, or person that is
also responsible, in whole or in part, for the design and construction
or operation of the unit.
25. Maximum Criminal Penalties
Idaho must demonstrate to EPA's satisfaction that it has sufficient
authority to recover criminal penalties in the maximum amount of not
less than $10,000 per day per violation, as required by 40 CFR
70.11(a)(3)(ii).
26. False Statements and Tampering
Idaho must demonstrate to EPA's satisfaction that it has the
criminal enforcement authorities required by 40 CFR 70.11(a)(3)(iii),
which require that criminal fines be recoverable in a maximum amount of
$10,000 per day per violation against any person who knowingly makes
any false material statement, representation, or certification in any
form, in any notice or report required by a permit, or who knowingly
renders inaccurate any required monitoring device or method.
27. Environmental Audit Statute
Idaho must revise both the immunity and disclosure provisions of
the Idaho Audit Act, Idaho Code title 9, chapter 8, to ensure that they
do not interfere with the requirements of section 502(b)(E)(5) of the
Clean Air Act and 40 CFR 70.11 that EPA identified in the June 17,
1996, Federal Register document and this notice for adequate authority
to pursue civil and criminal penalties and otherwise assure compliance.
Alternatively, Idaho must demonstrate to EPA's satisfaction through an
Attorney General's opinion that these required enforcement authorities
are not compromised by the Idaho Audit Act.
28. Correction of Typographical Errors and Cross-References
Idaho must correct the following typographical errors and erroneous
cross references:
a. IDAPA 16.01.01.006.31: The reference in the definition of
``emissions unit'' should be to 42 U.S.C. sections 7561 through 7561o
rather than to 42 U.S.C. sections 7561 through 7561.
b. IDAPA 16.01.01.008.05.f: The reference in subsection (f) to the
definition of ``applicable requirement'' should be to 42 U.S.C. section
7661c(b), rather than to section 7661a(b) (ie., to section 504(b) of
the Clean Air Act rather than to section 502(b)).
c. IDAPA 16.01.01.008.12: The reference to the general permit
regulation in the definition of ``general permit'' should be to section
335 (ie., IDAPA 16.01.01.335), rather than to section 322.
d. IDAPA 16.01.01.008.14: The reference in the definition of
``major facility'' to the definition of ``facility'' should be to
section 006.35 (i.e., IDAPA 16.01.01.006.35), rather than to 006.34.
e. IDAPA 16.01.01.322.10.1.i: The reference in the requirements for
the initial compliance plan should be to ``a verifiable sequence of
actions'' rather than to ``a variable sequence of actions.''
f. IDAPA 16.01.01.384.01.a.vi: The reference to compliance schedule
in this subsection should be to section 322.12.d (i.e., IDAPA
16.01.01.322.12.d), rather than to section 322.13.d.
g. IDAPA 16.01.01.385.01.a.iv: The words ``of title I of the Clean
Air Act'' or some other description of the type of provisions being
referred to appears to have been omitted after the phrase ``as a
modification under any provision.''
h. IDAPA 16.01.01.387.02.a.iii: The word ``least'' appears to have
been omitted from the phrase ``shall be sent at one (1) day.''
The scope of the Idaho title V program approved in this notice
applies to all title V sources (as defined in the approved program)
within the State of Idaho except any sources within Indian Country.
This interim approval, which may not be renewed, extends until
January 6, 1999. During this interim approval period, Idaho is
protected from sanctions, and EPA is not obligated to promulgate,
administer, and enforce a Federal operating permits program in Idaho.
Permits issued under a program with interim approval have full standing
with respect to title V and part 70. In addition, the 1-year time
period under State law for submittal of permit applications by subject
sources and the 3-year time period for processing the
[[Page 64634]]
initial permit applications begin upon the effective date of this
interim approval.
If Idaho fails to submit a complete corrective program for full
approval by July 6, 1998, EPA will start an 18-month clock for
mandatory sanctions. If Idaho then fails to submit a corrective program
that EPA finds complete before the expiration of that 18-month period,
EPA will be required to apply one of the sanctions in section 179(b) of
the Act, which will remain in effect until EPA determines that Idaho
has corrected the deficiency by submitting a complete corrective
program. Moreover, if the Administrator finds a lack of good faith on
the part of Idaho, both sanctions under section 179(b) will apply after
the expiration of the 18-month period until the Administrator
determines that Idaho has come into compliance. In any case, if, six
months after application of the first sanction, Idaho still has not
submitted a corrective program that EPA has found complete, a second
sanction will be required.
If EPA disapproves Idaho's complete corrective program, EPA will be
required to apply one of the section 179(b) sanctions on the date 18
months after the effective date of the disapproval, unless prior to
that date Idaho has submitted a revised program and EPA has determined
that it corrected the deficiencies that prompted the disapproval.
Moreover, if the Administrator finds a lack of good faith on the part
of Idaho, both sanctions under section 179(b) shall apply after the
expiration of the 18-month period until the Administrator determines
that Idaho has come into compliance. In all cases, if, six months after
EPA applies the first sanction, Idaho has not submitted a revised
program that EPA has determined corrects the deficiencies, a second
sanction is required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if Idaho
has not timely submitted a complete corrective program or EPA has
disapproved its submitted corrective program. Moreover, if EPA has not
granted full approval to Idaho program by the expiration of this
interim approval and that expiration occurs after November 15, 1995,
EPA must promulgate, administer and enforce a Federal permits program
for Idaho upon interim approval expiration.
B. Section 112(l)
With this interim approval EPA is delegating Idaho the authority to
implement and enforce 40 CFR part 61, subparts A, C, D, E, F, J, L
through P, V, Y, BB, and FF, and 40 CFR part 63, subparts A, D, L, and
M, as these rules apply to title V sources.17 EPA will retain
implementation and enforcement authority for these rules as they apply
to non-part 70 sources. EPA has reconsidered its proposed action to
delegate the radionuclide NESHAP regulations found under 40 CFR part 61
and has determined that Idaho does not have adequate resources to
implement and enforce these regulations at present. In this respect,
EPA is retaining authority to implement and enforce 40 CFR part 61
subparts B, H, I, K, Q, R, T, and W as these regulations apply to all
sources in Idaho.
---------------------------------------------------------------------------
\17\ With the exception of the radionuclide NESHAP regulations
found in part 61, subparts B, H, I, K, Q, R, T, and W.
---------------------------------------------------------------------------
EPA is also granting approval under the authority of section
112(l)(5) and 40 CFR 63.91 of a mechanism for receiving delegation of
section 112 standards that are unchanged from the Federal standards,
but only as these standards apply to title V sources (See section
5.1.2.b of EPA's ``Interim Enabling Guidance for the Implementation of
40 CFR Part 63,'' Subpart E, EPA-453/R-93-040, November 1993). Under
this streamlined approach, once Idaho adopts a new or revised NESHAP
standard into State law, Idaho will only need to send a letter of
request to EPA requesting delegation for the NESHAP standard. EPA would
in turn respond to this request by sending a letter back to the State
delegating the appropriate NESHAP standards as requested. No further
formal response from the State would be necessary at this point, and,
if a negative response from the State is not received by EPA within 10
days of this letter of delegation, the delegation would then become
final. Notice of such delegations will periodically be published in the
Federal Register.
Because EPA has determined that Idaho's enforcement authorities do
not meet the requirements of 40 CFR 70.11, EPA is promulgating interim,
rather than full, approval of Idaho's request for delegation. In this
respect, it is important to note that, although EPA is delegating
authority to Idaho on an interim basis to enforce the NESHAP
regulations as they apply to title V sources, EPA retains oversight
authority for all sources subject to these Federal Clean Air Act
requirements. EPA has the authority and responsibility to enforce the
Federal regulations in those situations where the State is unable to do
so or fails to do so.
III. Administrative Requirements
A. Docket
Copies of the State's submittal and other information relied upon
for the final interim approval, including the letters of public comment
received and reviewed by EPA on the proposal, are contained in the
Idaho title V docket maintained at the EPA Regional Office. The docket
is an organized and complete file of all the information submitted to,
or otherwise considered by, EPA in the development of this final
action. The docket is available for public inspection at the location
listed under the ADDRESSES section of this document.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
C. Regulatory Flexibility Act
EPA's actions under section 502 of the Act do not create any new
requirements, but simply address operating permits programs submitted
to satisfy the requirements of 40 CFR part 70. Similarly, NESHAP rule
or program delegations approved under the authority of section 112(l)
of the Act do not create any new requirements, but simply confer
Federal authority for those requirements that Idaho is already
imposing. Because this action does not impose any new requirements, EPA
has determined it does not have a significant impact on a substantial
number of small entities.
D. Unfunded Mandates Reform Act
EPA has determined that the action promulgated today under section
502 and section 112(l) of the Act does not include a Federal mandate
that may result in estimated costs of $100 million or more to either
State, local, or tribal governments in the aggregate, or to the private
sector. This Federal action approves pre-existing requirements under
State or local law and imposes no new Federal requirements.
Accordingly, no additional costs to State, local, or tribal
governments, or to the private sector, result from this action.
E. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A), as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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
General Accounting Office prior to publication of the rule in
[[Page 64635]]
today's Federal Register. This rule is not a ``major rule'' as defined
by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 70
Administrative practice and procedure, Air pollution control,
Environmental protection, Hazardous substances, Intergovernmental
relations, Operating permits, Reporting and recordkeeping requirements.
Dated: November 21, 1996.
Chuck Clarke,
Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding the entry for Idaho
in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Idaho
(a) Idaho Division of Environmental Quality: submitted on
January 20, 1995, and supplemented on July 14, 1995, September 15,
1995, and January 12, 1996; interim approval effective on January 6,
1997; interim approval expires January 6, 1999.
(b) Reserved.
* * * * *
[FR Doc. 96-31121 Filed 12-5-96; 8:45 am]
BILLING CODE 6560-50-P
