ENVIRONMENTAL PR OTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2008-0482] Approval and Promulgation of Implementation Plans; Idaho

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve numer ous revisions to the Idaho State Implementation Plan (SIP) that were submitted to EPA by the State of Idaho on May 22, 2003, April 2, 2004, July 13, 2005, May 5, 2006, Apr il 16, 2007, May 12, 2008, and June 8, 2009. The revisions were submitted in accordance with the requirements of section 110 and part D of the Clean Air Act (hereinafter the Act or CAA). EPA is taking no action in this rulemaking on a number of submitted rule revisions that are unrelat ed to the purposes of the implementation plan.

DATES: Comments must be received on or before [insert date 30 days after publication in the Federal Register ].

ADDRESSES : Submit your comments, identified by Docket ID No. EPA-R10-OAR-2008-0482, by any of the following methods:

 www.regulations.gov : Follow the on-line instructions for submitting comments.

 Email: R10-Public_Comments@epa.gov2  Mail: Donna Deneen, EPA Region 10, Office of Air, Waste and Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle WA, 98101

 Hand Delivery / Courier: EPA Region 10, 1200 Sixth Avenue, Suite 900, Seattle WA, 98101. Attention: Donna Deneen, Office of Air, Waste and Toxics, AWT - 107. Such deliveries are only accepted during normal hour s of operation, and sp ecial arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to DocketID No. EPA-R10-OAR-2008-0482. EPA’s policy is that all comments received will be in cluded in the public docket without change and may be made available online at www.regulations.gov , including any personal information provided, unless the comment includes informa tion claimed to be Confidential Business Information (CBI) or other information whose disc losure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact inform ation unless you provide it in the body of your

comment. If you send an e-mail comment direc tly to EPA without going through www.regulations.gov your e-mail address will be automatical ly captured and included as part of the comment that is placed in the public doc ket and made available on the Internet. If you submit an electronic comment, EPA recommends th at 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 a void the use of special characters, any form of encryption, and be free of any defects or viruses.3 Docket: All documents in the doc ket are listed in the www.regulations.gov index. Although listed in the index, some information is not pub licly available, e.g., 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. Publicly available docket materials are availabl e either electronically in www.regulations.gov or in hard copy during normal business hours at the Office of Air, Waste and Toxics, EPA Region 10, 1200 Sixth Avenue, Seattle WA, 98101.

FOR FURTHER INFORMATION CONTACT: Donna Deneen at telephone number: (206) 553-6706, e-mail address: deneen.donna@epa.gov , or the above EPA, Region 10 address.

SUPPLEMENTARY INFORMATION: Throughout this document wherever “we”, “us” or “our” are used, we mean EPA. Information is organized as follows:

Table of Contents I. Purpose of Proposed Action II. Background for Proposed Action III. Idaho SIP Revisions A. Annual Incorporation by Referen ce (IBR) of Federal Regulations B. New Source Review (NSR) Regulations C. Permit to Construct Exemptions D. Permitting Fees E. Soil Vapor Extraction F. Hospital/Medical/Infectious Waste Incinerators G. Permit Clarifications H. Title V Operating Permit Fees I. Regulated Air Pollutants J. Procedure for Transfer of Permits to Construct and Tier II Operating Permits K. Mercury4 L. Sulfur Content of Fuels IV. EPA’s Proposed Action A. Rules to Approve into SIP B. Rules on which No Action is Taken C. Scope of Proposed Action V. Statutory and Executive Order Reviews
I. Purpose of Proposed Action

The purpose of this action is to propose approva l of multiple revisions to Idaho’s SIP that were submitted to EPA by the State of Idaho De partment of Environmental Quality (IDEQ) on May 22, 2003, April 2, 2004, July 13, 2005, May 5, 2006, April 16, 2007, May 12, 2008 and June 8, 2009. The SIP submittals revise and amend IDEQ’s Rules for the Control of Air Pollution in Idaho (IDAPA 58.01.01) currently in the federally approved Idaho SIP (Code of Federal Regulations Part 52, subpart N). This action will update the federally approved SIP to reflect changes to IDAPA 58.01.01 that were made by IDEQ and reviewed and deemed approvable into the SIP. The proposed SIP revi sions are explained in more detail below along with our evaluation of how these rules comply wi th the requirements for SIPs and the basis for our action.

II. Background for Proposed Action

Title I of the CAA, as amended by Congress in 1990, specifies the general requirements for states to submit SIPs to attain and/or ma intain the National Ambient Air Quality Standards (NAAQS) and EPA’s actions regarding approval of those SIPs. With this action we are proposing approval of multiple SIP submittals a nd further background for each one is provided5 in the section below. We are taking no action on some of the provisions in some submittals because they are not related to the criteria po llutants regulated under titl e I of the Act or the requirements for SIPs under section 110 of the Act.

III. Idaho SIP Revisions

Table 1 includes a list of each SIP submitta l including the submittal date, title and sections of IDAPA 58.01.01 that are revised. The pa ragraphs that follow Table 1 include further information for each SIP submittal including a summary of the submittal with relevant background information and analysis to support our action.

Table 1: IDEQ SIP Submittals addressed in this action

Date of Submittal Title (with IDEQ Docket No.) Sections of IDAPA 58.01.01 revised or amended Soil Vapor Extraction (58- 0101-0102) 58.01.01.210

2001 IBR of Federal Regulations (58-0101-0103) 58.01.01.008 and 107 Hospital/Medical/Infectious Waste Incinerators (58-0101- 0103) 58.01.01.861

Permit Clarification (58-0101- 0202) 58.01.01.209, 213, 228, 313, 317, 395, 410, 511, 581, 700 and 710-724 2002 IBR of Federal Regulations (58-0101-0202) 58.01.01.008 and 107 Permitting Fees (58-0101-0104) 58.01.01.01.006, 007, 200-202, 209, 224-228, 400-402, 404, 407-410, 470, 800-802. 05/22/2003 1

Title V Operating Permit Fees (58-0101-0203) 58.01.01.387-399
04/02/2004 2003 IBR of Federal Regulations (58-0101-0301) 58.01.01.008 and 107
07/13/2005 New Source Review (58-0101- 0304) 58.01.01.006, 200, 202, 204, 205, 206, 209, 225 and 4016 Permit to Construct Exemptions (58-0101-0401) 58.01.01.220 and 222
2004 IBR of Federal Regulations (58-0101-0402) 58.01.01.008, 107, 200, 204 and 205 Regulated Air Pollutants (58- 0101-0503) 58.01.01.006-008, 133-135, 155, 213, 220, 440-442, 460, 511-513, 560-561, 575, 581, and 679 2005 IBR of Federal Regulations (58-0101-0505) 58.01.01.008, 107, 200, 204 and 205
Procedure for Transfer of Permit to Construct and Tier II permits (58-0101-0506) 58.01.01.006, 007, 209, and 404 05/05/2006 2

Permit to Construct Exemptions (58-0101-0507) 58.01.01.222
2006 IBR of Federal Regulations (58-0101-0602) 58.01.01.008, 107, 200, 204, 205 04/16/2007 Mercury (58-0101-0603) 58.01.01.199 05/12/2008 2007 IBR of Federal Regulations (58-0101-0701) 58.01.01.008, 107, 200, 204, 205 Sulfur Content of Fuels (58- 0101-0703) 58.01.01.725 06/08/2009 1 2008 IBR of Federal Rules (58- 0101-0802) 58.01.01.008 and 107

1 The May 22, 2003 and June 8, 2009 SIP submittals included IDEQ SIP revisions for the control of nonmetallic mineral processing plants (IDEQ Docket 58-0101-0002 and a portion of Docket 58-0101-0802), which will be acted on in a separate action. 2 The May 6, 2006 submittal included IDEQ’s SIP revisi on for the facility emissions cap (IDEQ Docket 58-0101- 0508) which will be acted on in a separate action.
A. Annual Incorporation by Referen ce (IBR) of Federal Regulations

IDAPA 58.01.01 incorporates by reference variou s portions of Federal regulations codified in the Code of Federal Regulations (CFR). However, when a Federal regulation originally incorporated by reference into IDAPA 58.01.01 on a specific date is subsequently changed, IDAPA 58.01.01 becomes out of date and, in some cas es, inconsistent with the revised version of the Federal regulation. To avoid potential in consistencies and keep IDAPA 58.01.01 up to date with changes in Federal regula tions, IDEQ submits a revision to its SIP on an annual basis7 updating the IBR citations in IDAPA 58.01.01 so they reflect any changes made to the Federal regulations during that year.

Annual Incorporation of Federal Regulations by Reference SIPs for the years 2001 through 2008 were submitted to EPA on May 22, 2003, April 2, 2004, July 13, 2005, May 5, 2006, April 16, 2007, May 12, 2008 and June 8, 2009, respectively. Because the most recent annual IBR submittals of May 12, 2008 (including the 2007 Annual IBR) and June 8, 2009 (including the 2008 Annual IBR) supersede the Annual IBR update s for 2001 through 2006, they are the most recent and only versions of certa in sections of IDAPA 58.01.01 that need to be incorporated into the SIP. The 2007 Annual IBR changed the wa y Federal regulations are incorporated by reference into IDAPA 58.01.01.200, 204 and 205. Speci fically, rather than listing the IBR of Federal regulations in each of these three sections, IDAPA 58.01.01.200, 204 and 205 now include language stating that th e applicable Federal regulation s are incorporated by reference into the rules at section 107. This revision simplifies future annual IBR updates by minimizing the sections of IDAPA 58.01.01 th at need to be revised each year. The 2008 Annual IBR includes the most recent revisions to IDAP A 58.01.01.107 incorporating Federal regulations updated as of July 1, 2008.

The 2007 Annual IBR was subject to a public hearing on September 6, 2007, adopted by the Board of Environmental Quality on Oc tober 10, 2007, and became effective on April 2, 2008. The revisions to IDAPA 58.01.01.200, 204 and 205 with the effective date of April 2, 2008 are proposed for incorporati on into the SIP. The 2008 Annua l IBR was subject to a public hearing on September 9, 2008, adopted by the Board of Environmental Quality on October 9,8 2008, and became effective on May 8, 2009. Th e revisions to IDAPA 58.01.01.107 with an effective date of May 8, 2009 are proposed to be approved into the SIP with the exception of subsections 107.03 (g) through (n) and (p) which are not related to the criteria pollutants regulated under title I of the Ac t or the requirements for SIPs under section 110 of the Act (see prior discussion in 67 FR 52666). Similarly, the revisions to IDAP A 58.01.01.008 are not being acted on since they are related to Idaho’s Tier I Operating Permit Program required under title V of the Act and are not part of the SIP.

B. New Source Review (NSR) Regulations

Parts C and D of title I of the CAA, 42 U.S.C. 7470-7515, set forth preconstruction review and permitting programs applicable to ne w and modified stationary sources of air pollutants regulated under the CAA, known as “major New Source Review” or “major NSR.” The major NSR programs of the CAA include a combination of air quality planning and air pollution control technology program requirements. States adopt major NSR programs as part of their SIP. Part C is the “Prevention of Si gnificant Deterioration” or “PSD” program, which applies in areas that meet the NAAQS (i.e., “attain ment” areas) as well as in areas for which there is insufficient information to determ ine whether the area meets the NAAQS (i.e., “unclassifiable” areas). Part D is the “Nonattainment New Source Review” or the “NNSR” program, which applies in areas that are not in attainment of the NAAQS (i.e., “nonattainment areas”). EPA regulations implementing thes e programs are contai ned in 40 CFR 51.165, 51.166, 52.21, 52.24, and part 51, appendix S.9 On December 31, 2002, EPA published final rule changes to the PSD and NNSR programs (67 FR 80186) and on November 7, 2003, EPA published a notice of final action on the reconsideration of the December 31, 2002 final rule changes (68 FR 63021). In the November 7, 2003 final action, EPA added the defin ition of “replacement un it,” and clarified an issue regarding plantwide applicability lim itations (PALs). The December 31, 2002 and the November 7, 2003, final actions, are collectively referred to as the “2002 NSR Reform Rules.”

The 2002 NSR Reform Rules made changes to fi ve areas of the major NSR programs. In summary, the 2002 Rules: (1) provide a new met hod for determining baseline actual emissions; (2) adopt an actual-to-projected-actual methodology for determining whether a major modification has occurred; (3) allow major statio nary sources to comply with PALs to avoid having a significant emissions increase that trig gers the requirements of the major NSR program; (4) provide a new applicability pr ovision for emissions units that are designated clean units; and (5) exclude pollution control projec ts (PCPs) from the definition of “physical change or change in the method of operation.”

After the 2002 NSR Reform Rules were fina lized and effective (M arch 3, 2003), various petitioners challenged numerous aspects of the 2002 NSR Reform Rules, along with portions of EPA's 1980 NSR Rules (45 FR 5276, August 7, 1980) . On June 24, 2005, the DC Circuit Court issued a decision on the challenges to the 2002 NSR Reform Rules. See New York v. United
States , 413 F.3d 3 (DC Cir. 2005). In summary, the DC Circuit Court vacated portions of the 2002 NSR Reform Rules pertaining to clean units and PCPs, remanded a portion of the rules regarding recordkeeping (40 CFR 52.21(r)(6) and 40 CFR 51.166(r)(6)), and either upheld or did10 not comment on the other provisions included as part of the 2002 NSR Reform Rules. On June 13, 2007 (72 FR 32526), EPA took final action to revi se the 2002 NSR Reform Rules to remove from Federal law all provisions pertaining to clean units and the PCP exemption that were vacated by the D.C. Circuit Court.

With regard to the remanded portions of the 2002 NSR Reform Rules related to recordkeeping, on December 21, 2007, EPA took final action to establish that a “reasonable possibility” applies where sour ce emissions equal or exceed 50 percent of the CAA NSR significance levels for any pollutant (72 FR 72607). The “reasonable possibility” provision identifies for sources and review ing authorities the circumstances under which a major stationary source undergoing a modification that does not trigger major NSR must keep records.

The 2002 NSR Reform Rules require that Stat e agencies adopt and submit revisions to their SIP permitting programs implementing the minimum program elements of the 2002 NSR Reform Rules no later than January 2, 2006. On July 13, 2005, IDEQ submitted revisions to its NSR rules to incorporate EPA’s NSR re form provisions. Specifically, IDAPA 58.01.01.006, 200, 202, 204, 205, 206, 209, 225 and 401 were revised to incorporate EPA’s major NSR reform measures into the existing rules. The revisions were subject to a public hearing on June 8, 2004, adopted by the Board of Environmental Quality on October 20, 2004, and became effective in Idaho on April 6, 2005. Idaho developed these late st revisions by comparing the Federal major NSR regulations in 40 CFR parts 51 and 52 to the existing State rules. The primary sections revised include IDAPA 58.01.01.204 and 205. Rather th an delineate the entire Federal major NSR rules, Idaho chose to incorporate by refere nce the appropriate NSR reform portions of the11 Federal program requirements maintaining the re mainder of its previously approved NSR rules not affected by the NSR reform. As noted in section III.A above, ID EQ submits an annual update to its rules that IBR Fede ral regulations, thus keeping the State’s rules up to date with changes in the Federal rules.

For a discussion of our approval of IDEQ ’s NSR rules not changed by IDEQ’s NSR Reform SIP revision, see EPA’s January 16, 2003 approval of IDEQ ’s NSR rules (68 FR 2217). A discussion of IDEQ’s July 13, 2005 SIP revisions to IDAPA 58.01.01.006, 200, 202, 204, 205, 206, 209, 225 to meet the specific requirements of NSR reform measures follows. IDAPA 58.01.01.006 General Definitions, was revised to re move definitions for Major Facility and Major Modification from the General De finitions and IDAPA 58.01.01.200 Procedures and Requirements for Permits to Construct, was revise d to specify that a Ma jor Facility is a Major Stationary Source as defined in 40 CFR 52.21( b) and a Major Modification is a Major Modification as defined in 40 CFR 52.21(b). IDAPA 58.01.01.202 A pplication Procedures, was revised to remove the exceptions for Major Faci lities and Major Modifications consistent with the definitional changes in 58.01.01.200. I DAPA 58.01.01.204 Permit Requirements for New Major Facilities or Major Modifica tions in Nonattainment Areas, was revised to expressly state the intent of the rule is to incorporate the Federal nona ttainment NSR rule requirements and includes a table of the sec tions of 40 CFR 51.165 and 52.21, as revised through November 7,
2003 1 that are incorporated by reference including 2 : 40 CFR 51.165(a)(1) regarding definitions;

1 IDEQ annually submits updates to its IBR of Federal rules. Subsequent to the July 13, 2005 SIP revisions, annual IBR updates have occurred as outlined in section III.A, making Idaho’s rules consistent with the changes that have occurred in the Federal rules through July 2007. 2 The July 13, 2006 submittal also incorporated by reference 40 CFR.165(c) regarding Clean Unit Test for Emission Units that are Subject to LAER (Lowest Achievable Emissions Rate), 40 CFR 165(d) regarding Clean Unit Provisions for Emission Units that Achieve an Emission Limitation Comparable to LAER and 40 CFR 52.21 (z)(1)- (3) and (5) regarding PCP Exclusion Procedural Requirements. However, on July 24, 2006, IDEQ amended the July12 40 CFR 51.165(a)(2)(ii) through 51.165( a)(3) regarding applicability 3 ; 40 CFR 51.165(a)(6)(i)- (iv) regarding applicability; and 40 CFR 52.21( aa) regarding Actual PALs, which meets the provisions of 51.165(f). IDAPA 58.01.01.205 Permit Re quirements for New Major Facilities or Major Modifications in Attainment or Unclassifi able Areas, was revised to expressly state that the intent of the rule is to incorporate the Fede ral PSD rule requirements and includes a table of the sections of 40 CFR 52.21, as revised through November 7, 2003 4 that are incorporated by reference including 5 : 40 CFR 52.21(a)(2) Applicabil ity Procedures; 40 CFR 52.21(b) Definitions; 40 CFR 52.21(i) Exemptions; 40 CFR 52.21(j) Control Technology Review; 40 CFR 52.21(k) Source Impact Analysis; 40 CFR 52.21(r) Source Obligation; 40 CFR 52.21(v) Innovative Control Technology; 40 CFR 52.21(w) Permit Rescis sion; and 40 CFR 52.21(aa) Actuals PALs. IDAPA 58.01.01.205.02 specifies, wh ere appropriate, those section of incorporated 40 CFR 52.21 where the use of the word “Administrator” m eans the “Department” and IDAPA 58.01.01.205.03 specifies existing require ments for non-major sources that are exempted or excluded from 40 CFR 52.21. IDAPA 58.01.01.206 Optiona l Offsets for Permits to Construct, was revised to change cross-references to subsections for consistency with the above

13, 2005 SIP revision requesting that EPA not act on the clean unit and PCP provisions since these provisions were being removed from the State rule consistent with th e vacature of these provisions from the Federal rule. 3 Note this IBR citation was incorrectly cited in the SIP revision submitted to EPA on July 13, 2005, and IDEQ has confirmed that that reference was intended to inco rporate by reference 40 CFR 51.165(a)(2)(ii)(A) through 51.165(a)(3)(ii)(J). Section 51.165(a)(2)(ii) includes su b-paragraphs (A) through (F) and state plans must also include the provisions in 165(a)(3)(i) and (ii) (A) through (J). On September 15, 2008, IDEQ submitted a letter to EPA stating that the reference in IDAPA 58.01.01.204 to 40 CFR 51.165(a)(2)(ii)(A)-(J) in IDEQ’s original submittal was in error and had been administratively corrected to incorporate by reference 40 CFR 51.165(a)(2)(ii) through 51.165(a)(3). 4 IDEQ annually submits updates to its IBR of Federal rules. Subsequent to the July 13, 2005 SIP revisions, annual IBR updates have occurred as outlined in section III.A abov e making Idaho’s rules consistent with the changes that have occurred in the Federal rules through July 2007. 5 The July 13, 2006 submittal also incorporated by reference 40 CFR 52.21(x) Clean Unit Test for Emissions Units that are Subject to Best Available Co ntrol Technology (BACT) or LAER, 40 CFR 52.21(y) Clean Unit Provisions for Emissions Units that Achieve an Emission Limitation Co mparable to BACT and 40 CFR 52.21(z)(1)-(3) and (6) PCP Exclusion Procedural Requirements. However, on July 24, 2006 IDEQ amended the July 13, 2005 SIP revision by requesting that EPA not act on the clean unit and PCP provisions since these provisions were being removed from the State rule consistent with the vacature of these provisions from the Federal rule13 changes. IDAPA 58.01.01.209 Procedures for Issuing Permits, was revised to remove the exceptions for Major Facilities and Major Modifica tions consistent with the definitional changes in IDAPA 58.01.01.200. IDAPA 58.01.01.225 Permit to C onstruct Processing Fee, was revised for consistency with definitional changes in IDAPA 58.01.01.205. And IDAPA 58.01.01.401 Tier II Operating Permit, was revised fo r consistency with changes to IDAPA 58.01.01.204.

Idaho’s major NSR SIP submission meets th e EPA NSR reform requirements for SIPapproved NSR programs in 40 CFR 51.165 and 166 and 40 CFR 52.21. The revised rules address baseline actual emissions, actual-to-project ed actual applicability tests, PALs, and other currently applicable provisions of EPA’s 2002 NSR Reform Rules. In fact, the majority of the Federal NSR Reform provisions in 40 CFR 51.165 and 52.21 are incorporated by reference directly into Idaho regulations and, as noted in section III.A above, IDEQ annually updates its IBR of Federal rules to keep the State’s rules c onsistent with changes to the Federal NSR rules and the most recent IBR update revision includes c itations to Federal NSR regulations revised as of July 1, 2007 with a State e ffective date of April 2, 2008.

C. Permit to Construct Exemptions

EPA last approved revisions to Idaho’s Permit to Construct 6 Exemptions on January 16, 2003 (68 FR 2217) and we provided a detailed disc ussion of our analysis in the August 13, 2002 Proposed Rule (67 FR 52666). In brief, when we approved IDEQ’s minor NSR exemption provisions in IDAPA 58.01.01.220 through 222, we not ed that we based our approval on our determination that the emission levels and s ource categories specified in the rules are14 appropriately exempted from minor NS R. While IDAPA 58.01.01.220.01.a.iii included additional provisions that require d modeling the impact of a source’ s uncontrolled potential to emit to be exempt from minor NSR permitting in Idaho, we specifically noted that our approval was not based on the requirement for modeling since such modeling is part of the permitting process itself and, therefore, not typically included as criteria a source must meet to qualify for an exemption from the permitting process. Our August 13, 2002 Proposed Rule (67 FR 52666) and January 16, 2003 Final Rule (68 FR 2217) also noted that the “dir ector’s discretion” provisions in IDAPA 58.01.01.222.03 and 222.01.f do not meet the requirements of section 110 of the CAA and, therefore, we did not a pprove these provision into the SIP.

In response to our actions in the prior rulemaking (67 FR 52666 and 68 FR 2217) discussed above, IDEQ removed the modeling requireme nts from IDAPA 58.01.01.220 and the “director’s discretion” provisions from I DAPA 58.01.01.222 and submitted two sepa rate SIP revisions to its Permit to Construct Exemption Rules IDAP A 58.01.01.220 and 222 for approval into the SIP on July 13, 2005 and May 5, 2006. The July 13, 2005 re visions were subject to a public hearing on October 4, 2004, adopted by the Board of Envi ronmental Quality on November 18, 2004, and became effective on April 6, 2005. The May 5, 2006 re visions were subject to a public hearing on October 11, 2005, adopted by the Board of Environmental Quality on November 17, 2005, and became effective on April 11, 2006.

The July 13, 2005 and May 5, 2006 SIP submittals revised IDAPA 58.01.01.220 to strike-out the modeling provisions in cluded in IDAPA 58.01.01.220.01.a .iii and revised 58.01.01.222 to strike out the “director’s disc retion” provisions in IDAPA 58.01.01.222.01.f and

6 NSR permits are referred to as “permits to construct” or “PTC”s in Idaho.15 222.03. IDEQ’s May 5, 2006 SIP also revised 58.01.01.222.1.d to change the criteria for internal combustion engines operating for emer gency purposes from operating for less than 200 hours to operating less than 500 hours and revi sed IDAPA 58.01.01.222.2.c to add biogas as an allowable fuel for fuel-burning equipment with capacity less than 50 million BTU per hour used for indirect heating and heating or reheati ng furnaces, providing that the hydrogen sulfide concentration is below 200 parts per million by vol ume. In addition, three new paragraphs were added to exempt additional sources. IDAPA 58.01.01.222.2.i exempts multiple chamber crematories providing they use natural gas ex clusively, have a maximum average charge capacity of 200 pounds of remains per hour a nd minimum secondary combustion chamber temperature of 1500 degrees Fahrenhe it; IDAPA 58.01.01.222.2.j exempts petroleum environmental remediation source by vapor extr action providing the opera tion life is less than five years and the short term adjustment factor for air toxics (IDAPA 58.01.01.210.15) is not used if source is within 500 feet of a sensitive re ceptor; and IDAPA 58.01.01.222.2.k exempts dry cleaning facilities providing they are not major under, but are subject to, 40 CFR part 63 subpart M.

IDEQ’s July 13, 2005 and May 5, 2006 rule revisi ons address the “directors discretion” and modeling issues previously raised by EPA ( 67 FR 52666, 68 FR 2217) and are proposed to be approved into the SIP. IDEQ’s May 5, 2006 re visions expanding the Permit to Construct Exemptions for certain sources are also pr oposed to be approved into the SIP.

It is important to note that in order for any source to qualify for a source-category exemption under IDAPA 58.01.01.222, it must first sati sfy the criteria set forth in IDAPA16 58.01.01.220 which includes the general exemption crit eria for permits to construct, further limiting the scope of IDEQ’s source-cat egory exemptions. IDAPA 58.01.01.220.01.a requires that the maximum capacity of a source to emit an air pollutant under its physical and operational design without consideration of limitations on emi ssion such as air pollution control equipment, restrictions on hours of operation and restrictions on the type a nd amount of material combusted, stored or processed would not equal or exceed on e hundred (100) tons per year of any regulated air pollutant and would not cause an increase in the emissions of a major facility that equals or exceeds the significant emissions rates. In additi on, IDEQ retains the legal authority pursuant to IDAPA 58.01.01.401.03 to require a source to obtain an air quality permit to ensure compliance with applicable rule s, including the NAAQS.

D. Permitting Fees
On May 22, 2003 IDEQ, submitted revisions to IDAPA 58.01.01.224 through 228, 407 through 410, 470 and 800 through 802 revising its regulations pertaining to permit fees associated with IDEQ’s Permit to Construct and Tier I and II Operating Permits programs. The revisions were subject to a public heari ng on October 9, 2001, adopted by the Board of Environmental Quality on November 8, 2001, and became effective on July 1, 2002. While IDEQ submitted the permit fee rules to EPA, it sp ecifically noted the revisi ons that establish or revise permitting fees were only included in the SIP submittal for informational purposes and that IDEQ did not intend that EP A include the fee relate d rules into the SIP. We are proposing to take no action on IDAPA 58.01.01.224-228, 408-410 and 800- 802 which deal with the collection of various fees associated with IDEQ’s Permit to Construct and Tier I and II Operating Permits. The Tier I permits are not related to the criteria po llutants regulated under title I of the CAA or to17 the requirements for SIPs under se ction 110 of the Act. While the fee provisions associated with Permits to Construct and Tier II permits are rela ted to criteria pollutant programs under title I of the Act, IDEQ has requested that these provisi ons not be included in the SIP because of the frequency of revisions to the fee rules.

IDEQ’s May 22, 2003 SIP submittal included minor editorial changes IDAPA 58.01.01.006, 007, 200-202, 209, 400-402 and 404, that were made concurrent with the revisions to the fee rules. We reviewed the editorial changes to IDAPA 58.01.01.006, 007, 200-202, 209, 400-402 and 404 and found them to be appropriate and we propose to approve them into the SIP to update the SIP which includes previously approve d versions of these rules. In addition, the revision to IDAPA 58.01.01.470 strikes the exis ting fee language making IDAPA 58.01.01.470 a reserved paragraph and we propose to a pprove this change in the SIP.

E. Soil Vapor Extraction

On May 22, 2003 IDEQ submitted revisi ons to IDAPA 58.01.01.210 to add paragraph 16.c, which allows IDEQ to waive the requirements of IDAPA 58.01.01.513 for any environmental remediation source that functions to remediate or recover any release, spill, leak, discharge or disposal of any pe troleum product. The revisions we re subject to a public hearing on February 6, 2001, adopted by the Board of Environmental Quality on October 18, 2001, and became effective on March 15, 2002. This portion of the May 22, 2003 SIP submittal deals with IDEQ’s air toxic regulations and is not currently in the Idaho SIP. Becau se this regulation does18 not relate to the criteria pollutants regulated under title I of the CAA or to the requirements for SIPs under section 110 of the Act, EPA is propos ing to take no action on this provision.

F. Hospital/Medical/Infectious Waste Incinerators

On May 22, 2003 IDEQ submitted revisi ons to IDAPA 58.01.01.861, Standards of Performance of Hospital/Medical/Infectious Wast e Incinerators, to clarify that owners or operators of hospital/medical/infectious wast e incinerators subject to IDAPA 58.01.01.861 must comply with the provisions of section 39-128. Th e revisions were subjec t to a public hearing on August 8, 2001, adopted by the Board of Environmental Quality on October 18, 2001, and became effective on March 15, 2002. Although this portion of the May 22, 2003 SIP submittal rule is an important part of IDEQ’s overal l air program, IDAPA 58.01.01.861 is not currently in the Idaho SIP and is not related to requireme nts for SIPs under section 110 of the Act. Therefore, EPA is not taking any action on these provisions.

G. Permit Clarifications

On May 22, 2003 IDEQ submitted its Perm it Clarification SIP submittal including revisions to IDAPA 58.01.01.209, 213, 228, 313, 317, 395, 410, 511, 581, 700, and 710-724 to update and clarify the rules. The revisions we re subject to a public hearing on October 8, 2002, adopted by the Board of Environmental Quality on November 13, 2002, and became effective on May 3, 2003. The revisions to IDAPA 58.01.01.209.01.c, 700.01 and 710-724 reversed earlier revisions IDEQ made to these pa rticulate matter process weight limitations in response to EPA’s19 determination that the earlier revisions were less stringent than those currently in the SIP. In effect, the revisions to IDAPA 58.01.01.209.01.c , 701.01 and 710-724 change the regulatory language in these rules back to reflect the existing language in the SIP approved rules. To maintain consistency between the federally approve d rules and State rules, specifically regarding the State rule effective dates, IDAPA 58.01.01.700 with a State effective date of May 3, 2003 is proposed to be approved into the SIP. Th e revisions to IDAPA 58.01.01.313 and 317 revise the Tier I operating permit rules and the revi sions to IDAPA 58.01.01.228, 395 and 410 revise the timeframes, from 30 to 35 days, for appealing fees associated with Permits to Construct and Tier I and II Operating Permits. We are proposing to take no action on IDAPA 58.01.01.313, 317, 228, 395, and 410 as these rules deal with IDEQ’s Tier I operating permit program and the collection of various fees associ ated with IDEQ’s Permit to Cons truct and Tier I and II Operating Permits. As noted in III.D above, the Tier I perm its are not related to the criteria pollutants regulated under title I of the CAA or to the requirements for SIPs under section 110 of the Act and, while the fee provisions associ ated with Permits to Construct and Tier II permits are related to criteria pollutant programs under title I of the Act, IDEQ has requested that these fee provisions not be included in the SIP because of the frequency of revisions to the fee rules.

IDEQ’s May 22, 2003 Permit Clarification SIP submittal also included editorial revisions to IDAPA 58.01.01.213 and 511 and 581 for clarification and to correct cross-referencing section numbers. We reviewed the editorial changes to IDAPA 58.01.01. 213 and 511 and 581, found them to be appropriate and propose to approve thes e revision with the State effective date of May 3, 2003 into the SIP, thereby updating the SIP to reflect the revi sed State rules.20 H. Title V Operating Permit Fees

On May 22, 2003, IDEQ submitted its title V Operating Permit Fees SIP including revisions to IDAPA 58.01.01.387-399. The revisions were subject to a public hearing on October 8, 2002, adopted by the Board of Envi ronmental Quality on November 13, 2002, and became effective on April 2, 2003. In its submittal IDEQ clarified that it was submitting these rule revisions to EPA for informational purposes only and it did not intend to have the title V Operating Permit Fee rules incor porated into the SIP. We ar e proposing to take no action on IDAPA 58.01.01.387-399 as these rules deal with ID EQ’s Tier I operating permit program and the collection of various fees asso ciated with IDEQ’s Tier I Oper ating Permits. The IDEQ’s Tier I permit program is the operating permit program requi red under title V of th e Act and is not part of the criteria pollutants regulat ed under title I of the CAA or the requirements for SIPs under section 110 of the Act.

I. Regulated Air Pollutants

On May 5, 2006 IDEQ submitted revisions to IDAPA 58.01.01.006-008, 133-135, 155, 213, 220, 440-442, 460, 511-513, 560-561, 575, 581, and 679 to incorporate a new definition for “regulated air pollutant” to be consistent with Federal requirements with respect to the treatment of fugitive emissions in determining applicability for operating permits and permits to construct. The revisions were subject to a public heari ng on September 7, 2005, adopted by the Board of Environmental Quality on November 17, 2005, and became effective on April 11, 2006. A separate public hearing was held on December 5, 2005, regarding changes to Idaho Code 39-11521 that were part of the SIP revision containing th e regulatory changes to IDAPA 58.01.01. The specific regulatory changes that EPA is proposing to approve into the SIP are discussed below.

IDAPA 58.01.01.006 was revised to modify the defi nition of “regulated air pollutant” to be consistent with Federal rules and to modify th e definition of “modifica tion” by adding language stating that “fugitive emissions shall not be c onsidered in determining whether a permit is required for a modification unless required by federal law.” The revi sions make the treatment of fugitive emissions in determining major source and major modification thresholds consistent with Federal major NSR rules. On Decembe r 19, 2008, EPA promulgated its final rulemaking regarding its reconsideration of the inclusion of fugitive emissions in the NSR program (73 FR 77882). In this rulemaking, EPA made the treatmen t of fugitive emissions for determining major modifications consistent with the treatment of fugitive emissions for determining major source thresholds. In brief, this rulemaking requires that fugitive emissions be included in determining whether a physical change or change in ope ration results in a majo r modification only for sources in source categories de signated through rulemaking pursuant to section 302(j) of the Act (i.e., “listed sources”). The change to the treatment of fugitive emissions became effective in the Federal NSR program on January 20, 2009 and became effective in the Federal PSD program on February 17, 2009. However, on February 17, 2009, EPA received a petition from the Natural Resources Defense Council to reconsider and stay the December 19, 2008, final fugitive emissions final rule. EPA granted the peti tion on April 24, 2009 and published a Federal Register notice on September 30, 2009 establishing a three-month administrativ e stay of the rule (74 FR 50115). Because IDEQ’s program now treat s fugitive emissions in the same manner as “required by federal law,” these changes ar e also effective in the IDEQ major NSR22 It is important to note that in its final rulemaking on the reconsideration of fugitive emissions (73 FR 77882), EPA noted th at a state has considerable la titude to customize its minor NSR program regarding the treatment of fugitiv e emissions and that state authorities should explicitly indicate how fugitive em issions are to be accounted for in all aspects of the state’s minor NSR (see page 77890). The definition of “major modification” used in IDEQ’s major NSR rules is distinctly different from the revised definition for modification in IDAPA 58.01.01.006 which applies to IDEQ’s “minor” NSR rule s. The statement in IDEQ’s definition of “regulated air pollutant” that “fugitive emissions shall not be considered in determining whether a permit is required for a modification un less required by federal law” therefore created a potential lack of clarity regarding the treatment of fugitive emissions in Idaho’s minor source program. EPA therefore requested that IDEQ cl arify this issue. On September 25, 2009 IDEQ, submitted additional information to EPA explicitly stating that fugitive emissions in IDEQ’s minor source program are treated the same way th ey are in its major NSR program, i.e., fugitive emissions at minor sources of listed source catego ries are included in determining the source’s potential to emit and whether ther e is a modification. In light of IDEQ’s clarific ation regarding the treatment of fugitive emissions in its mi nor NSR program, EPA proposes to approve the revisions to IDAPA 58.01.01.006 with the exception of subsection (b) of the definition of “modification” (codified as IDAPA 58.01.01.006.55.b in this submission, and subsequently renumbered). This subparagraph (b) in the defini tion of “modification pertains to the “state only” toxics air pollutant program and is not related to the criteria pollutants regulated under title I of the CAA or to the requirements for SIPs under section 110 of the Act. Therefore, EPA is not taking any action on this subparagraph.23 The May 5, 2006 SIP included additional editorial revisions to IDAPA 58.01.01.006, 007, 133, 134, 135, 155, 213, 220, 460, 511, 512, 513, 560, 561, 575, 581, and 679 to make those sections consistent with the defi nitional changes to “modification” and “regulated air pollutant.” EPA reviewed these changes and proposes to appr ove them. Similar editorial changes were also made to sections IDAPA 58.01.01.008, 440 and 441; however, EPA is taking no action on IDAPA 58.01.01.008, 440 and 441. The rationa le is provided in detail in our previous action on Idaho’s SIP (67 FR 52666).

J. Procedure for Transfer of Permits to Construct and Tier II Operating Permits

On May 5, 2006 IDEQ submitted revisions to IDAPA 58.01.01.006, 007, 209 and 404 modifying definitions for its major and minor source air quality permitting programs and submitted two new rule subsections allowing for the transfer of permits to construct and Tier II operating permits. The revisions were subject to a public hearing on September 7, 2005, adopted by the Board of Environmental Quality on Oc tober 12, 2005, and became effective on April 11, 2006. The specific regulatory changes that EPA is proposing to approve into the SIP are discussed below.

The revisions to IDAPA 58.01.01.006 change the de finition of “modification” to refer to an “emissions increase” as defined in IDAPA 58.01.01.007. The revisions to IDAPA 58.01.01.007 include new definitions for “baseline actual emissions,” “begin actual construction,” “emissions increase,” and “proj ected actual emissions,” as well as editorial24 revisions to other definitions to maintain consis tency with the new definitions. The revisions to IDAPA 58.01.01.209 add a new section IDAPA 58.01.01.209.06 titled, Transfer of Permits to Construct, which includes the requirements for transferring a permit to construct to a new owner or operator of the source. Similarly, th e revisions to IDAPA 58.01.01.404 add a new section IDAPA 58.01.01.404.05 titled, Transfer of Tier II Pe rmits, which includes the requirements for transferring a Tier II permit to a new owner or operator of the s ource. The definition revisions in IDAPA 58.01.01.006 and 007 are consistent with a nd, in many instances, identical to the definitions in 40 CFR 52.21(b) (definitions for Federal PSD program) and we are proposing to approve these revisions into Ida ho’s SIP. The new procedures fo r the transfer of permits in IDAPA 58.01.01.209.6 and 58.01.01.404.5 clarify existing pr actices and we propose to approve these revisions into the SIP as well.

K. Mercury

On April 16, 2007, IDEQ submitted a new section IDAPA 58.01.01.199 requiring that no owner or operator shall construc t or operate an electric genera ting unit, as defined in 40 CFR 60.24, with a potential to emit mercury emissions. The rule was subject to a public hearing on November 3, 2006, adopted by the Board of E nvironmental Quality on November 16, 2006, and became effective on March 30, 2007. While this ru le is an important part of IDEQ’s air program, IDAPA 58.01.01.199 is not related to the crit eria pollutants regula ted under title I of the CAA or to the requirements for SIPs under se ction 110 of the Act and, therefore, EPA is not taking any action on this provision.25 L. Sulfur Content of Fuels

On June 8, 2009 IDEQ submitted revisions to IDAPA 58.01.01.725 thru 729 reorganizing and clarifying the exis ting rules for the sulfur content of fuels. The revisions were subject to a public hearing on June 10, 2008, adopt ed by the Board of Environmental Quality on October 9, 2008, and became effective on May 8, 2009. IDAPA 58.01.01.725 thru 729 were combined into a single section 58.01.01.725 Rules fo r the Sulfur Content of Fuels. Section 726 was revised to become paragraph 725.01 while retain ing all of the relevant definitions specific to sections 725 thru 729. Sections 727, 728 and 729 were revised to become paragraphs 725.02. 725.03, and 725.04, while retaining all of the relevant pr ovisions for residual fuel oils, distillate fuel oils and coal, respectively. The revisions simplify the existing re gulations and we propose to approve these revisions into the SIP.

IV. EPA’s Proposed Action

Consistent with the discussion above, EPA proposes to approve most of the submitted SIP provisions and to take no acti on on certain other provisions, as discussed below. This action will result in proposed changes to the Id aho SIP in 40 CFR part 52, subpart N.

A. Rules to Approve into SIP

EPA proposes to approve into the SIP at 40 CF R part 52, subpart N, the Idaho regulations listed in Table 2. It is important to note that in those instances wher e IDEQ submitted multiple26 revisions to a single section of IDAPA 58.01.01, the most recent vers ion of that section (based on state effective date) is proposed to be incorporated into th e SIP since it supersedes all previous revisions.
Table 2: Idaho Regulations for Proposed Approval State Citation Title/Subject State Effective Date Explanation

58.01.01 – Rules for the Control of Air Pollution in Idaho 006 General Definitions 4/11/2006 Except Section 006.66(b) (re: state air toxics in definition of “modification”) 007 Definitions for the Purposes of Sections 200 through 225 and 400 through 461 4/11/2006 107 Incorporations by Reference 5/8/2009 Except Section 107.03(g) through (n) and (p). 200 Procedures and Requirements for Permits to Construct 4/2/2008 133 Start-up, Shutdown and Scheduled Maintenance Requirements 4/11/2006 134 Upset, Breakdown and Safety Requirements 4/11/2006 135 Excess Emission Reports 4/11/2006 155 Circumvention 4/11/2006 201 Permit to Construct Required 7/1/2002 202 Application Procedures 4/6/2005 204 Permit Requirements for New Major Facilities or Major Modifications in Nonattainment Areas. 4/2/2008
205 Permit Requirements for New Major Facilities or Major Modifications in Attainment or Unclassifiable Areas. 4/2/2008
206 Optional Offsets for Permits to Construct 4/6/2005 209 Procedures for Issuing Permits 4/11/2006 213 Pre-Permit Construction 4/11/2006 220 General Exemption Criteria for Permit to Construct Exemptions 4/11/2006 222 Category II Exemptions 4/11/2006 400 Procedures and Requirements for Tier II Operating Permits 7/1/2002 401 Tier II Operating Permit 4/6/2005 Except 401.01.a27 (bubbles) and 401.04 (compliance date extension). 402 Application Procedures 7/1/2002 404 Procedure for Issuing Permits 4/11/2006 460 Requirements for Emission Reduction Credits 4/11/2006 511 Applicability 4/11/2006 512 Definitions 4/11/2006 513 Requirements 4/11/2006 560 Notification to Sources 4/11/2006 561 General Rules 4/11/2006 575 Air Quality Standards and Area Classification 4/11/2006 581 Prevention of Significant Deterioration (PSD) Increments 4/11/2006 679 Averaging Period 4/11/2006 700 Particulate Matter Process Weight Limitations 5/3/2003 More recent state rule effective date 725 Rules for Sulfur Content of Fuels 5/8/2009

B. Rules on which No Action is Taken

58.01.01.008, Definitions for Purposes of Section 300 through 386 58.01.01.199, Electric Generating Unit Construction Prohibition 58.01.01.210, Demonstration of Preconstruction Compliance with Toxic Standards 58.01.01.225, Permit to Construct Processing Fee 58.01.01.228, Appeals 58.01.01.313, 317, 387-399, 395, Procedures and Requireme nts for Tier I Operating Permits 58.01.01.410, Appeals 58.01.01.175-181, Procedures and Requirements for Perm its Establishing a Facility Emissions Cap 58.01.01.861, Standards of Performance of Hospital/ Medical/Infectious Waste Incinerators28 C. Scope of Proposed Action
Idaho has not demonstrated authority to implement and enforce IDAPA Chapter 58 within “Indian Country” as defined in 18 U.S.C. 1151. 7 Therefore, EPA proposes that this SIP approval 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 sha ll include enforceable emission limits). This is consistent with EPA's previ ous approval of Idaho's PSD program, in which EPA specifically disapproved the program for sources within Indian Rese rvations 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

7 “Indian country” is defined unde r 18 U.S.C. 1151 as: (1) all land within the limits of any Indian reservation under the juri sdiction of the United States Government, notwithstanding the issuance of any patent, and in cluding rights-of-way running th rough the reservation, (2) all dependent Indian communities w ithin the borders of the United States, whether within the original or subsequently acquired territory thereof, and whether within or wit hout the limits of a State, and (3) all Indian allotments, the Indi an titles to which have not been extinguished, including rights-of-way runni ng 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 Duck Valle y Reservation, the Reservation of the Kootenai Tribe, the Fort Hall Indian Reservation, and th e Nez Perce Reservation as described in the 1863 Nez Perce Treaty.29 Under the CAA, the Administrator is requi red to approve a SIP submission that complies with the provisions of the Ac t and applicable Federal regulat ions. 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. Acco rdingly, this proposed actio n merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

 is not a "significant regulato ry 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 bu rden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

 is certified as not having a si gnificant economic impact on a substantial number of small entities under the Regulatory Fl exibility 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 (Public Law 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 act ion 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) ofthe 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 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 EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements,
Sulfur oxides, Volatile organic compounds.

Dated:

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30 Denn i s J. tk:Lerran**e~** i ana I Adn in i strater Region 10.