01-9353. Approval and Promulgation of State Implementation Plans: Idaho

AGENCY:

Environmental Protection Agency.

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA) approves revisions to Idaho's State Implementation Plan (SIP) relating to permit requirements for new major facilities or major modifications in the former PM-10 Northern Ada County nonattainment area. These revisions were submitted to EPA on February 9, 2001, by the Director of the Idaho Department of Environmental Quality (DEQ).

DATES:

This direct final rule is effective on June 18, 2001 without further notice, unless EPA receives adverse comment by May 17, 2001. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Written comments should be addressed to: Ms. Donna Deneen (OAQ-107), Office of Air Quality, EPA, 1200 Sixth Avenue, Seattle, Washington 98101.

Documents incorporated by reference are available for public inspection at the Air and Radiation Docket and Information Center, Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460. Copies of material submitted to EPA may be examined during normal business hours at the following locations: EPA, Region 10, Office of Air Quality, 1200 Sixth Avenue (OAQ-107), Seattle, Washington 98101, and the Idaho Department of Environmental Quality, 1420 North Hilton, Boise, Idaho 83706-1255.

FOR FURTHER INFORMATION CONTACT:

Ms. Donna Deneen (OAQ-107), Office of Air Quality, EPA, Seattle, Washington 98101, [phone].

SUPPLEMENTARY INFORMATION:

I. Background

Northern Ada County was designated as a nonattainment area for PM-10 in the Clean Air Act Amendments of 1990. However, in March of 1999, EPA determined that the nonattainment designation and PM-10 National Ambient Air Quality Standards would no longer apply for this area. 64 FR 12257. As a result of this action, the Clean Air Act requirements for Title I, Part D (nonattainment area) new source review (NSR) rules no longer applied to new and modified major stationary sources of PM-10 in Northern Ada County. EPA was subsequently sued for determining that the nonattainment designation and the PM-10 standards for Northern Ada County would no longer apply (Clean Air Force et al. v. EPA et al., nos. 99-70289 and 70576 (9th Cir.)). This lawsuit resulted in a settlement which, among other things, required DEQ to submit a negotiated rule to EPA as a SIP revision to ensure that Federally enforceable Part D NSR rules for PM-10 apply to Northern Ada County until the area either is designated as attainment or again becomes nonattainment. On February 9, 2001, DEQ submitted IDAPA 58.01.01.204 to EPA in fulfillment of this requirement.

II. Discussion of Rule

IDAPA 58.01.01.204 contains rule language that EPA believes would ensure that Part D NSR rules for PM-10 apply to new major facilities and major modifications in the former PM-10 Northern Ada County nonattainment area. Approval of this rule as a SIP revision would assure maintenance of acceptable air quality in the area, while DEQ works to complete a PM-10 maintenance plan for Northern Ada County and submit a request that the area be redesignated to attainment. Failure to approve this rule would likely result in a restoration of the PM-10 standards and nonattainment designation for Northern Ada County. That result would also reinstate the federally-approved NSR requirements that apply to new major facilities or major modifications in Northern Ada County.

EPA approves IDAPA 58.01.01.204 as it relates to the former PM-10 Northern Ada County nonattainment area because it establishes new source permitting requirements beyond what would otherwise be federally required for Northern Ada County now that it is no longer designated nonattainment for PM-10, and because it strengthens the PM-10 emissions-related requirements in the Idaho SIP. In addition, IDAPA 58.01.01.204 as it relates to the former PM-10 Northern Ada County nonattainment area reflects an agreement with stakeholders, representing environmental, state, and local interests, who have indicated broad support for these revisions.

It is important to note that the Idaho permitting provisions for preventing significant deterioration (PSD) will also apply to PM-10 emissions from new major facilities or major modifications in the Northern Ada County area. Under the Clean Air Act and EPA's regulations (40 CFR 51.166(i)(5)), a PSD source can only be exempted from the PSD requirements for a particular pollutant if it is located in a area that is designated nonattainment for that pollutant. Since the Northern Ada County area is not currently designated as nonattainment under section 107 of the Act, PSD requirements continue to apply to new and modified major stationary sources of PM-10 and, after today's action, will continue to apply along with the newly-approved Part D NSR rules.

III. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective June 18, 2001 unless EPA receives adverse written comments by May 17, 2001.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 18, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

Dated: March 26, 2001.

Charles E. Findley,

Acting Regional Administrator, Region 10.

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

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

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

Subpart N—Idaho

2. Section 52.670 is amended by adding paragraphs (c)(34) to read as follows:

§ 52.670

Identification of plan.

* * * * *

(c) * * *

(34) On February 9, 2001, the Idaho Department of Environmental Quality submitted amendments to State of Idaho's Rules and Regulations for the Control of Air Pollution in Idaho as revisions to the Idaho state implementation plan as follows: Section 58.01.01.204.

(i) Incorporation by Reference.

(A) IDAPA 58.01.01.204 Permit Requirements for New Major Facilities or Major Modifications in Nonattainment Areas and in the Former PM-10 Northern Ada County Nonattainment Area (as Defined in Section 582), state adopted January 26, 2001.