2011-14204. Approval and Promulgation of Implementation Plans; ID

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving revisions to the Idaho State Implementation Plan (SIP) that were submitted to EPA by the State of Idaho on April 16, 2007. This SIP submittal includes new and revised rules which provide the Idaho Department of Environmental Quality (IDEQ) the regulatory authority to address regional haze and to implement Best Available Retrofit Technology (BART) requirements.

DATES:

This action is effective on July 11, 2011.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R10-OAR-2007-0406. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at EPA Region 10, Office of Air, Waste, and Toxics, AWT-107, 1200 Sixth Avenue, Seattle, Washington 98101. EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Steve Body at telephone number: [phone], e-mail address: [e-mail], or the above EPA, Region 10 address.

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever “we,” “us,” or “our” is used, we mean the EPA.

Information is organized as follows:

Table of Contents

I. Background

II. Public Comments on the Proposed Action

III. Final Action

IV. Limitations in Indian Country

V. Statutory and Executive Order Reviews

I. Background

On January 5, 2011, EPA published in the Federal Register, a proposal to approve new and revised Idaho administrative rules: IDAPA58.01.01.006.04.a,b,c; 006.14.a through z; 006.16; 006.28; 006.42; 006.63.d; 006.65; 006.67; 006.81; 006.91; 006.92.b; 006.99; 006.101.b; 006.124; 006.125; 007.02a.iv; 007.02.d; 651; 665; 666; 667; and 668. These rules provide the Idaho Department of Environmental Quality (IDEQ) the regulatory authority to address regional haze and to implement Best Available Retrofit Technology (BART) requirements. See 76 FR 508. Included in Idaho's SIP revision submittal were several other visibility-related rule revisions which are not specifically related to regional haze or BART requirements. One revision related to open burning is not being addressed in this action because it was superseded by a subsequent SIP revision on May 28, 2008, which was approved in a separate rulemaking on August 1, 2008. Other revisions related to permitting are not being addressed in this action because they were superseded by subsequent SIP revisions on May 12, 2008, and June 8, 2009, which were approved in a separate rulemaking on November 26, 2010.

The rule revisions were submitted in accordance with the requirements of section 110 and part D of the Clean Air Act.

II. Public Comments on the Proposed Action

EPA provided a 30-day review and comment period and solicited comments on our proposal published in the January 5, 2011, Federal Register (76 FR 508). EPA received no comments on this proposed action.

III. Final Action

Pursuant to section 110 of the CAA, EPA is approving as a SIP revision Idaho rules: IDAPA58.01.01.006.04.a,b,c; 006.14.a through z; 006.16; 006.28; 006.42; 006.63.d; 006.65; 006.67; 006.81; 006.91; 006.92.b; 006.99; 006.101.b; 006.124; 006.125; 007.02a.iv; 007.02.d; 651; 665; 666; 667; and 668, that provide the State of Idaho authority to impose the BART provisions of 40 CFR 51.308(e). These revisions are described in detail in EPA's proposed action, published in the Federal Register on January 5, 2011, (76 FR 508).

IV. Limitations in Indian Country

Idaho has not demonstrated authority to implement and enforce IDAPA chapter 58 within “Indian Country” as defined in 18 U.S.C. 1151.^[1] Therefore, this SIP approval does not extend to “Indian Country” in Idaho. See CAA sections 110(a)(2)(A) (SIP shall include enforceable emission limits), 110(a)(2)(E)(i) (State must have adequate authority under State law to carry out SIP), and 172(c)(6) (nonattainment SIPs shall include enforceable emission limits). This is consistent with EPA's previous approval of Idaho's SIP revisions, in which EPA specifically disapproved the program for sources within Indian Reservations in Idaho because the State had not shown it had authority to regulate such sources. See 40 CFR 52.683(b). It is also consistent with EPA's approval of Idaho's title V air operating permits program. See 61 FR 64622, 64623 (December 6, 1996) (interim approval does not extend to Indian Country); 66 FR 50574, 50575 (October 4, 2001) (full approval does not extend to Indian Country).

V. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and the EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

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. The EPA will submit a report containing this action 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).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 8, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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, and Reporting and recordkeeping requirements

Dated: May, 25, 2011.

Dennis J. McLerran,

Regional Administrator, Region 10.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

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

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

Subpart N—Idaho

2. In § 52.670(c), the table in paragraph (c) is amended:

a. By revising entries 006 and 007.

b. By revising entry 651.

c. By adding entries 665 through 668.

§ 52.670

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Idaho Regulations

State citation	Title/subject	State effective date	EPA approval date	Explanations
Idaho Administrative Procedures Act (IDAPA) 58.01.01—Rules for the Control of Air Pollution in Idaho
*         *         *         *         *         *         *
006	General Definitions	3/30/07 4/11/06, 7/1/02, 4/5/00, 3/20/97, 5/1/94	6/9/11 [Insert page number where the document begins]	Except Section 006.55(b) (re: state air toxics in definition of “modification”).
007	Definitions for the Purposes of Sections 200 through 225 and 400 through 461	3/30/07, 4/11/06, 4/5/00, 6/30/95, 5/1/95, 5/1/94	6/9/11 [Insert page number where the document begins]
*         *         *         *         *         *         *
651	General Rules	3/30/07, 5/1/94	6/9/11 [Insert page number where the document begins]
665	Regional Haze Rules	3/30/07	6/9/11 [Insert page number where the document begins]
666	Reasonable Progress Goals	3/30/07	6/9/11 [Insert page number where the document begins]
667	Long-Term Strategy for Regional Haze	3/30/07	6/9/11 [Insert page number where the document begins]
668	BART Requirement for Regional Haze	3/30/07	6/9/11 [Insert page number where the document begins]
*         *         *         *         *         *         *

Footnotes

1.  “Indian country” is defined under 18 U.S.C. 1151 as: (1) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (2) all dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State, and (3) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way through the same. Under this definition, EPA treats as reservations trust lands validly set aside for the use of a Tribe even if the trust lands have not been formally designated as a reservation. In Idaho, Indian country includes, but is not limited to, the Coeur d'Alene Reservation, the Reservation of the Kootenai Tribe, the Fort hall Indian Reservation, and the Nez Perce Reservation as described in the 1863 Nez Perce Treaty.