05-14279. Approval and Promulgation of Implementation Plans; Idaho; Correcting Amendment

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

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

DATES:

Written comments must be received by August 19, 2005.

ADDRESSES:

Submit your comments, identified by Docket ID No. R10-OAR-2005-ID-0002, by one of the following methods:

1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

2. Agency Web site: http://www.epa.gov/​edocket. EDOCKET, EPA's electronic public docket and comment system, is EPA's preferred method for receiving comments. Follow the on-line instructions for submitting comments.

3. Mail: Office of Air, Waste, and Toxics, Environmental Protection Agency, Attn: David C. Bray, Mailcode: AWT-107, 1200 Sixth Avenue, Seattle, WA 98101.

4. Hand Delivery: Environmental Protection Agency Region 10, Attn: David C. Bray (AWT-107), 1200 Sixth Ave., Seattle, WA 98101, 9th floor mail room. Such deliveries are only accepted during EPA's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. R10-OAR-2005-ID-0002. EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The EPA EDOCKET and the Federal regulations.gov Web site are an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through EDOCKET or regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the EDOCKET index at http://www.epa.gov/​edocket. Although listed in the index, some information may not be publicly available, such as CBI 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 in EDOCKET or in hard copy at EPA Region 10, Office of Air Quality, 1200 Sixth Avenue, Seattle, Washington, from 8 a.m. to 4:30 p.m. Monday through Friday, excluding legal holidays. Please contact the individual listed in the For Further Information Contact section to schedule your inspection.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. This Action

A. What Correction Is EPA Proposing?

B. What Is the Basis for This Action?

C. What Will be the Effect of This Correction?

III. Statutory and Executive Order Requirements

I. Background

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

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

II. This Action

A. What Correction Is EPA Proposing?

EPA made an error by inadvertently including a cross reference to the toxics provisions within the IDEQ definition of “regulated air toxic”. EPA is proposing to correct this error by amending the incorporation by reference of the Idaho SIP to exclude paragraph (f) from the definition of “regulated air pollutant” at IDAPA 58.01.01.006(84).

B. What Is the Basis for This Action?

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

C. What Will Be the Effect of This Correction?

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

III. Statutory and Executive Order Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this proposed action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely corrects the incorporation by reference of the list of toxic air pollutants used in regulatory provisions that are not part of the EPA-approved SIP and does not impose any additional requirements on state, local or tribal governments or the private sector. Accordingly, the Administrator certifies that this proposed 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 proposes to approve 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 proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This proposed action merely corrects the incorporation by reference of the list of State toxic air pollutants as initially requested by the State and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

Dated: July 7, 2005.

Julie Hagensen,

Acting Regional Administrator, Region 10.