[Federal Register Volume 75, Number 227 (Friday, November 26, 2010)]
[Rules and Regulations]
[Pages 72719-72727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29628]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2008-0482; FRL-9231-1]


Approval and Promulgation of Implementation Plans; Idaho

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving numerous revisions to the Idaho State 
Implementation Plan that were submitted to EPA by the State of Idaho on 
May 22, 2003, April 2, 2004, July 13, 2005, May 5, 2006, April 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 unrelated 
to the purposes of the implementation plan.

DATES: This action is effective on December 27, 2010.

ADDRESSES: Copies of the State's SIP revision and other information 
supporting this action are available for inspection at EPA Region 10, 
Office of Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Suite 
900, Seattle, Washington 98101.

FOR FURTHER INFORMATION CONTACT: Donna Deneen, EPA Region 10, Office of 
Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Seattle, 
Washington 98101, or at (206) 553-6706.

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

Table of Contents

I. Background for This Action
    A. What revisions to the Idaho SIP does this action address?
    B. What comments did we receive on our proposal for these 
revisions?
    1. Section 110(l)
    a. Summary of Comments Regarding Section 110(l)
    b. EPA Response to Section 110(l)-Related Comments
    2. Section 193
    a. Summary of Comments Regarding Section 193
    b. EPA Response to Section 193-Related Comments
II. Final Action
    A. Rules To Approve Into the Idaho SIP
    B. Rules on Which No Action Is Taken
    C. Scope of Action
III. Statutory and Executive Order Reviews

I. Background for This Action

    Title I of the CAA, as amended by Congress in 1990, specifies the 
general requirements for states to submit State Implementation Plans 
(SIPs) to attain and/or maintain the National Ambient Air Quality 
Standards (NAAQS) and EPA's actions regarding approval of those SIPs. 
On May 22, 2003, April 2, 2004, July 13, 2005, May 5, 2006, April 16, 
2007, May 12, 2008, and June 8, 2009, the Idaho Department of 
Environmental Quality (IDEQ) submitted numerous revisions to the SIP 
for the State of Idaho. On March 18, 2010, EPA solicited public comment 
on a proposal to approve all of the revisions submitted by IDEQ, except 
the identified provisions on which EPA proposed to take no action. 75 
FR 13058. This final action will update the federally approved SIP to 
reflect changes to the Rules for the Control of Air Pollution in Idaho 
(IDAPA 58.01.01) that were made by IDEQ and reviewed and deemed 
approvable into the Idaho SIP (Code of Federal Regulations part 52, 
subpart N).

A. What revisions to the Idaho SIP does this action address?

    Table 1 below identifies each SIP submittal addressed in this 
action, including the submittal date, title and sections of IDAPA 
58.01.01 that are revised. The submittals include Idaho's annual 
incorporation by reference of various portions of the Code of Federal 
Regulations (CFR), revised new source review (NSR) requirements, 
revised permit to construct exemptions, updates and clarifications to 
the State's permitting program, revisions related to the definition of 
``regulated air pollutant,'' modified definitions for the State's major 
and minor source permitting programs, procedures for transferring 
permits, clarifications to sulfur content of fuels provisions, and 
various editorial changes. The submittals also included provisions we 
are taking no action on, including an electric generating unit 
construction prohibition, demonstration of preconstruction compliance 
with toxic standards, permit fee provisions, appeal provisions, 
provisions relating to Tier 1 operating permits, facility emissions 
cap, standards of performance of certain types of waste incinerators, 
and various definition revisions. More information about each SIP 
submittal, including a summary of the submittal and relevant background 
information and analysis supporting our action, can be found in our 
proposed approval. 75 FR 13058 (March 18, 2010).

          Table 1--IDEQ SIP Submittals Addressed in This Action
------------------------------------------------------------------------
                                                       Sections of IDAPA
        Date of submittal          Title (with IDEQ    58.01.01 revised
                                      Docket No.)         or amended
------------------------------------------------------------------------
05/22/2003 \1\..................  Soil Vapor          58.01.01.210.
                                   Extraction (58-
                                   0101-0102).
                                  2001 IBR of         58.01.01.008 and
                                   Federal             107.
                                   Regulations (58-
                                   0101-0103).
                                  Hospital/Medical/   58.01.01.861.
                                   Infectious Waste
                                   Incinerators (58-
                                   0101-0103).

[[Page 72720]]

 
                                  Permit              58.01.01.209, 213,
                                   Clarification (58-  228, 313, 317,
                                   0101-0202).         395, 410, 511,
                                                       581, 700 and 710-
                                                       724.
                                  2002 IBR of         58.01.01.008 and
                                   Federal             107.
                                   Regulations (58-
                                   0101-0202).
                                  Permitting Fees     58.01.01.01.006,
                                   (58-0101-0104).     007, 200-202,
                                                       209, 224-228, 400-
                                                       402, 404, 407-
                                                       410, 470, 800-
                                                       802.
                                  Title V Operating   58.01.01.387-399.
                                   Permit Fees (58-
                                   0101-0203).
04/02/2004......................  2003 IBR of         58.01.01.008 and
                                   Federal             107.
                                   Regulations (58-
                                   0101-0301).
07/13/2005......................  New Source Review   58.01.01.006, 200,
                                   (58-0101-0304).     202, 204, 205,
                                                       206, 209, 225 and
                                                       401.
                                  Permit To           58.01.01.220 and
                                   Construct           222.
                                   Exemptions (58-
                                   0101-0401).
                                  2004 IBR of         58.01.01.008, 107,
                                   Federal             200, 204 and 205.
                                   Regulations (58-
                                   0101-0402).
05/05/2006 \2\..................  Regulated Air       58.01.01.006-008,
                                   Pollutants (58-     133-135, 155,
                                   0101-0503).         213, 220, 440-
                                                       442, 460, 511-
                                                       513, 560-561,
                                                       575, 581, and
                                                       679.
                                  2005 IBR of         58.01.01.008, 107,
                                   Federal             200, 204 and 205.
                                   Regulations (58-
                                   0101-0505).
                                  Procedure for       58.01.01.006, 007,
                                   Transfer of         209, and 404.
                                   Permit To
                                   Construct and
                                   Tier II permits
                                   (58-0101-0506).
                                  Permit To           58.01.01.222.
                                   Construct
                                   Exemptions (58-
                                   0101-0507).
04/16/2007......................  2006 IBR of         58.01.01.008, 107,
                                   Federal             200, 204, 205.
                                   Regulations (58-
                                   0101-0602).
                                  Mercury (58-0101-   58.01.01.199.
                                   0603).
05/12/2008......................  2007 IBR of         58.01.01.008, 107,
                                   Federal             200, 204, 205.
                                   Regulations (58-
                                   0101-0701).
06/08/2009 \1\..................  Sulfur Content of   58.01.01.725.
                                   Fuels (58-0101-
                                   0703).
                                  2008 IBR of         58.01.01.008 and
                                   Federal Rules (58-  107.
                                   0101-0802).
------------------------------------------------------------------------
\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 revision for the
  facility emissions cap (IDEQ Docket 58-0101-0508) which will be acted
  on in a separate action.

B. What comments did we receive on our proposal for these revisions?

    National Resource Defense Council (NRDC) commented on EPA's 
proposal to approve changes to Idaho's permitting programs for major 
stationary sources, specifically the prevention of significant 
deterioration (PSD) permit program and the nonattainment area (Part D) 
permit program that incorporate EPA's ``2002 NSR Reform Rules.'' NRDC 
primarily commented on the requirements of the Federal NSR rules, not 
Idaho's application of the Federal requirements in its own rules. 
Notably, NRDC participated in litigation challenging EPA's promulgation 
of the 2002 NSR Reform Rules, where similar arguments were made by NRDC 
and dismissed by the DC Circuit Court. New York v. EPA, 413 F.3d 3 (DC 
Cir. 2005). NRDC's comments in this action, including exhibits, do not 
raise any specific concerns with Idaho's rules, but rather, reiterate 
arguments made by NRDC to the DC Circuit regarding Sections 110(l) and 
193 of the Clean Air Act.\1\
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    \1\ NRDC notes that, ``[t]he 2002 rule provisions considered by 
the DC Circuit in New York v. EPA were EPA regulations, not state 
ones. The court thus had no occasion to decide whether EPA could 
approve any state's versions of any of the 2002 rule provisions 
consistently with section 110(1) of the Act.'' NRDC Comments at 4. 
The Idaho rules at issue here track the federally approved rules, as 
upheld by the DC Circuit (which NRDC admits--NRDC Comments at 4-5) 
and NRDC supported all its comments with information related to the 
challenge of EPA's 2002 NSR Reform Rules. NRDC provided no Idaho-
specific suppport for its comments.
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    Although NRDC's comments provide citations to nine sections of the 
Idaho rules, the comments make no attempt to specifically explain or 
demonstrate how those identified provisions are inconsistent with 
either Section 110(l) or Section 193 of the CAA. Furthermore, NRDC 
provides no evidence supporting its allegations that approval of the 
specific provisions would result in a violation of the CAA or otherwise 
be ``arbitrary, capricious, an abuse of discretion, and otherwise not 
in accordance with law.'' NRDC Comments at 2. The NRDC comments include 
a list of 31 exhibits which the comment letter incorporates by 
reference into the comments. NRDC Comments at 1 and 11-12. The 31 
exhibits appear to all be related to the DC Circuit Court case New York 
v. EPA, and were either submitted to that Court for review, or are 
relevant to that adjudication. In any event, none of the 31 exhibits 
provides EPA with any comments specific to the Idaho rules at issue. 
Despite the lack of Idaho-specific discussion in NRDC's letter, EPA has 
responded to the few comments that appear related to the March 18, 
2010, proposal to approve Idaho's SIP revisions pertaining to EPA's 
2002 NSR Reform Rules.
1. Section 110(l)
    a. Summary of comments regarding Section 110(l):
    NRDC asserts that ``[t]he 2002 NSR Reform Rule provisions that were 
not vacated by the DC Circuit in New York v. EPA [citation omitted] 
allow previously-prohibited emissions-increases to occur.'' NRDC 
Comments at 4. As a result, NRDC states that, ``it cannot be said of 
Idaho's plan that it `will cause no degradation of air quality' '' and 
``Idaho has made no `demonstration that the emissions that are allowed 
by its revised rule but are prohibited by the current SIP would not 
interfere with attainment or other applicable requirements.' '' NRDC 
Comments at 5. Further, NRDC states that ``EPA has never made, or even 
proposed to make, a finding that revisions to Idaho's permit provisions 
so that they track the non-vacated provisions of the 2002 rule `will 
cause no degradation of air quality' [citations omitted] or avoid 
`interfering with any applicable requirements concerning attainment and 
reasonable further progress toward attainment of the [NAAQS], or any 
other applicable requirement of the Act,'' and that ``EPA fails to even 
cite CAA Section 110(l) in the proposal.'' NRDC Comments at 5. Finally, 
NRDC concludes that ``finalizing the EPA rulemaking proposal at issue 
here would violate section 110(l) of the Act.'' NRDC Comments at 5.
    b. EPA response to Section 110(l)-related comments:
    EPA's 2002 NSR Reform Rules were upheld by the DC Circuit Court 
which

[[Page 72721]]

reviewed them, with the exception of the pollution control project and 
clean unit provisions (and the remanded matters). The three significant 
changes in the 2002 NSR Reform Rules that were upheld by the DC Circuit 
were (1) plantwide applicability limits (PALs), (2) the 2-in-10 
baseline, and (3) the actual-to-projected actual emission test. The 
Supplemental Environmental Analysis of the Impact of the 2002 Final NSR 
Improvement Rules (November 21, 2002) (Supplemental Analysis) discussed 
each of these three changes individually, and addresses some of the 
issues raised by NRDC.
    With regard to PALs, the Supplemental Analysis explains, ``The EPA 
expects that the adoption of PAL provisions will result in a net 
environmental benefit. Our experience to date is that the emissions 
caps found in PAL-type permits result in real emissions reductions, as 
well as other benefits.'' Supplemental Analysis at 6. EPA further 
explained that,

    Although it is impossible to predict how many and which sources 
will take PALs, and what actual reductions those sources will 
achieve for what pollutants, we believe that, on a nationwide basis, 
PALs are certain to lead to tens of thousands of tons of reductions 
of VOC from source categories where frequent operational changes are 
made, where these changes are time-sensitive, and where there are 
opportunities for economical air pollution control measures. These 
reductions occur because of the incentives that the PAL creates to 
control existing and new units in order to provide room under the 
cap to make necessary operational changes over the life of the PAL.

Supplemental Analysis at 7. The Supplemental Analysis, and particularly 
Appendix B, provides additional details regarding EPA's analysis of 
PALs and anticipated associated emissions decreases.
    With regard to the 2-in-10 baseline, EPA concluded that, ``The EPA 
believes that the environmental impact from the change in baseline EPA 
is now finalizing will not result in any significant change in benefits 
derived from the NSR program.'' Supplemental Analysis at 13. This is 
mainly because ``the number of sources receiving different baselines 
likely represents a very small fraction of the overall NSR permit 
universe, excludes new sources and coal fired power plants, and because 
the baseline may shift in either direction, we conclude that any 
overall consequences would be negligible.'' Supplemental Analysis at 
14. Additional information regarding the 2-in-10 baseline changes is 
available in the Supplemental Analysis, Appendix F.
    With regard to the actual-to-projected actual test, EPA concluded, 
``we believe that the environmental impacts of the switch to the 
actual-to-projected actual test are likely to be environmentally 
beneficial. However, as with the change to the baseline, we believe the 
vast majority of sources, including new sources, new units, electric 
utility steam generating units, and units that actually increase 
emissions as a result of a change, will be unaffected by this change. 
Thus, the overall impacts of the NSR changes are likely to be 
environmentally beneficial, but only to a small extent.'' Supplemental 
Analysis at 14 (see also Supplemental Analysis Appendix G).\2\
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    \2\ For more information on the 2002 NSR Reform Rules, and its 
supporting technical documents, see http://www.epa.gov/nsr/actions.html#2002 (last visited November 21, 2008).
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    Section 110(l) of the CAA states that ``[t]he Administrator shall 
not approve a revision of a plan if the revision would interfere with 
any applicable requirement concerning attainment and reasonable further 
progress * * * or any other applicable requirement of this chapter.'' 
Clean Air Act, 42 U.S.C. 7410(l). In ``Approval and Promulgation of 
Implementation Plans; New Source Review; State of Nevada, Clark County 
Department of Air Quality and Environmental Management,'' 69 FR 54006 
(September 7, 2004), the EPA stated that Section 110(l) does not 
preclude SIP relaxations. The Agency stated that Section 110(l) only 
requires that the ``relaxations not interfere with specified 
requirements of the Act including requirements for attainment and 
reasonable further progress,'' and that, therefore, a state can relax 
its SIP provisions if it is able to show that it can ``attain or 
maintain the [National Ambient Air Quality Standards (NAAQS)] and meet 
any applicable reasonable further progress goals or other specific 
requirements.'' 69 FR at 54011-12.
    As the commenter acknowledges, the Idaho PSD/NSR rules track the 
Federal 2002 NSR Reform Rules. EPA did evaluate Idaho's rules 
consistent with its evaluation of the Federal rules, and determined 
that Idaho's rules were equivalent to the 2002 NSR Reform Rules. 
Overall, as summarized above, EPA expects that changes in air quality 
as a result of implementing Idaho's PSD/NSR rules will be consistent 
with EPA's position on the Federal 2002 NSR Reform Rules--that there 
will be somewhere between neutral and providing modest contribution to 
reasonable further progress when the 2002 NSR Reform Rules are compared 
to the pre-reform provisions. EPA's analysis for the environmental 
impacts of these three components of the 2002 NSR Reform Rules is 
informative of how Idaho's adoption of NSR Reform (based on the Federal 
rules) will affect emissions. EPA has no reason to believe that the 
environmental impacts will be different from those discussed in the 
Supplemental Analysis for the 2002 NSR Reform Rules, and, thus, 
approval of Idaho's SIP revision would not be contrary to Section 
110(l) of the CAA.
    As discussed above, NRDC cites to nine general sections of Idaho's 
rules as provisions that would violate Section 110(l).\3\ Without 
further specificity, however, it is not clear why or how NRDC believes 
approval of these provisions would violate Section 110(l). Moreover, 
NRDC has provided no Idaho-specific documentation that indicates that 
EPA's analysis and conclusions regarding the impact of the 2002 NSR 
Reform Rules, in the Supplemental Analysis, are not applicable to 
Idaho's rules which mirror the Federal rules.
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    \3\ While NRDC has not identified the specific provisions within 
these sections in Idaho's submittal that they contend prevent the 
State's revised plan from meeting the criteria in Section 110(l), by 
its many references to EPA's 2002 NSR Reform Rules, EPA presumes 
that NRDC is referring to the changes to the applicability 
provisions for determining when modifications to existing major 
stationary sources are subject to review (i.e., when a major 
modification would occur). The responses to NRDC's comments that 
follow are based on that presumption.
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    EPA evaluated Idaho's rules in comparison with the existing Federal 
rules, and determined that Idaho's rules were equivalent to the 2002 
NSR Reform (Federal) Rules. EPA also considered the Supplemental 
Analysis in reviewing NRDC's comments. EPA concluded that approval of 
Idaho's SIP revision would not be contrary to Section 110(l) of the CAA 
because they implement Federal provisions. This comparison was 
discussed in the proposal to approve Idaho's SIP revision. Absent more 
explicit information demonstrating that Idaho's plan for implementation 
of a specific provision of its rules would interfere with any 
applicable requirement of the Clean Air Act and thus should be 
disapproved under Section 110(l), Idaho's SIP submission and the 
Supplemental Analysis support approval and there is no basis to 
determine that approval of Idaho's rules would violate Section 110(l).
    Although NRDC has not identified the specific provisions within 
these sections in Idaho's submittal that they contend prevent the 
State's revised plan from meeting the criteria in Section 110(l), EPA 
presumes that NRDC is referring to

[[Page 72722]]

the changes to the applicability provisions for determining when 
modifications to existing major stationary sources are subject to 
review (i.e., when a major modification would occur) because those 
provisions of the 2002 NSR Reform Rules differ most from PSD and Part D 
NSR rules currently approved in the Idaho SIP. With respect to major 
modifications, IDEQ has informed EPA that it issued only one PSD permit 
for a major modification in the ten years prior to adopting the 2002 
NSR Reform Rules and has not issued a PSD permit for a major 
modification in the five years since adopting the NSR Reform changes. 
Given this permitting record, EPA does not believe that there is any 
evidence that the change to the major modification applicability 
provisions in the Idaho SIP resulting from Idaho's adoption of the 2002 
NSR Reform Rules would interfere with any applicable requirement 
concerning attainment or reasonable further progress or any other 
applicable requirement of the CAA.
    In addition, EPA does not believe that the change to the definition 
of major modification has interfered, or will interfere, with Idaho's 
ability to ensure reasonable further progress in any nonattainment 
area. Of the five areas in Idaho that were designated nonattainment in 
response to the 1990 Clean Air Act Amendments, all five have now 
attained the applicable NAAQS. Three have been formally redesignated to 
attainment, two before and one after Idaho revised its NSR rules 
(Boise-Ada County CO, 67 FR 65713 (October 28, 2002; eff. December 27, 
2002); Ada County (Boise) PM10, 68 FR 61106 (October 27, 2003, eff. 
November 26, 2003); and Portneuf Valley (Pocatello) PM10, 71 FR 39574 
(July 13, 2006, eff. August 14, 2006)). Two have been determined to 
have attained the applicable NAAQS, one before and one after Idaho 
revised its NSR rules (Pinehurst (Shoshone County) PM10, 66 FR 44304 
(August 23, 2001, eff. October 22, 2001) and Sandpoint PM10, 75 FR 
35302 (June 22, 2010, eff. August 23, 2010)). Since all nonattainment 
areas have successfully attained the NAAQS, some before and some after 
the revision to the NSR rules, EPA finds no basis to conclude that the 
change to the rules would interfere with Idaho's ability to ensure 
reasonable further progress in any nonattainment area. There are no 
existing major sources of PM2.5 or PM2.5 precursors in the newly 
designated Franklin County (Cache Valley) PM2.5 nonattainment area, so 
the change to the Part D NSR rule will not affect Idaho's ability to 
ensure reasonable further progress when it develops and submits the 
attainment plan for that newly designated area.
    Moreover, although NRDC acknowledges that ``110(l) requires * * * a 
determination that the specific revision, when considered in the 
context of the SIP elements already in place, can meet the Act's 
attainment requirements,'' (citing Hall v. EPA, 273 F.3d 1146, 1152, 
1159 (9th Cir. 2001) (emphasis added), NRDC's comments fail to consider 
the other permitting rules in the Idaho SIP along with the revisions to 
those rules that EPA is proposing to approve in this action. The Idaho 
SIP includes a single ``permit to construct'' program (IDAPA 
58.01.01.200 through 228) that includes requirements for the 
construction and modification of stationary sources, including major 
stationary sources in nonattainment areas (IDAPA 58.01.01.204) and 
attainment or unclassifiable areas (IDAPA 58.01.01.205). Importantly, 
the Idaho rules require that changes to existing major stationary 
sources that are not subject to review under the provisions for major 
sources are subject to the nonmajor source requirements of IDAPA 
58.01.01.200 through 228 (see IDAPA 58.01.01.204.03 and 
58.01.01.205.04). The nonmajor source requirements include the 
requirement that no permit to construct shall be granted unless the 
applicant shows that the stationary source or modification would not 
cause or significantly contribute to a violation of any ambient air 
quality standard (IDAPA 58.01.01.203.02). Thus, changes at existing 
major stationary sources that would have undergone review as major 
modifications under Idaho's existing PSD SIP but now may not be 
reviewed as major modifications under Idaho's adoption of the 2002 NSR 
Reform Rules must still undergo review as nonmajor changes and cannot 
be constructed if they would cause or significantly contribute to a 
violation of the NAAQS. Idaho's nonmajor new source review requirements 
provide additional assurance that Idaho's adoption of the 2002 NSR 
Reform rules will not interfere with the Idaho SIP's ability to attain 
and maintain the NAAQS, and the commenter has provided no information 
to the contrary.
2. Section 193
    a. Summary of comments regarding Section 193:
    NRDC states that NSR is a ``control requirement'' and thus the 
requirements of Section 193 apply to the NSR rules at issue in the 
Idaho SIP revision. NRDC Comments at 8. NRDC further alleges that 
Idaho's revisions ``ensure that emissions will not be reduced as much 
as under the preexisting rules. In fact, the modifications allow 
emissions to increase in Idaho's nonattainment areas.'' NRDC Comments 
at 9. Finally, NRDC states that ``because section 193 lies within part 
D,'' ``if EPA approves Idaho's revised plan, that action will 
additionally exceed the agency's authority under section 110(k)(3) and 
violate section 100(l) [this appears to be a typo and should read 
110(l)].'' NRDC Comments at 10.
    b. EPA response to Section 193-related Comments:
    The response to the Section 193 issues raised by NRDC involves many 
of the same elements of the response above to the Section 110(l) 
comments, which is also incorporated by reference here.
    Section 193 states (in relevant part) that ``[n]o control 
requirement in effect, or required to be adopted by an order, 
settlement agreement, or plan in effect before November 15, 1990, in 
any area which is a nonattainment area for any air pollutant may be 
modified after November 15, 1990, in any manner unless the modification 
insures equivalent or greater emission reductions of such air 
pollutant.''
    Assuming for purposes of this discussion that Section 193 does 
apply to the instant action, as was discussed earlier in this notice, 
EPA has previously determined and explained in the Supplemental 
Analysis that implementation of the 2002 NSR Reform Rules still in 
effect (that is, those not vacated by the D.C. Circuit in its New York 
I decision) are expected to have at least a neutral environmental 
benefit. Therefore, even if Section 193 did apply to this action, EPA 
does not agree with commenter's assertions that the SIP submissions 
approved in this action raise a Section 193 concern.
    In addition, the core of NRDC's argument seems to revolve around 
the DC Circuit Court decision in South Coast Air Quality Management 
District v. EPA, 472 F.3d 882 (D.C. Cir. 2006) (finding that NSR 
associated with the 1-hour ozone standard included control 
requirements). At issue in South Coast was EPA's determination 
regarding the revocation of the entire 1-hour ozone program (and 
corresponding SIP elements), including all the 1-hour nonattainment NSR 
elements, and whether such elements would continue to be required as 
part of SIPs implementing the new (at that time) 8-hour ozone standard. 
The facts in the South Coast case are thus distinguishable from the 
instant matter where the Idaho SIP is merely being updated to include 
changes to the 2002 Federal NSR Rules and, as discussed

[[Page 72723]]

above, those changes insure equivalent or greater emission reductions. 
EPA is not removing the entirety of its Part D NSR program from the 
Idaho SIP as it pertains to a particular NAAQS. Rather, EPA is simply 
approving Idaho's SIP revisions that implement rules equivalent to 
Federal rules; and as discussed earlier in this notice, EPA developed a 
Supplemental Analysis to support adoption of the Federal rules. The 
Idaho SIP will continue to operate with the full suite of NSR related 
elements.\4\
---------------------------------------------------------------------------

    \4\ EPA also notes that there are only three nonattainment areas 
in Idaho where the Part D NSR rules apply. There are no existing 
major stationary sources within any of these nonattainment areas so 
the rule provisions that define when a modification to an existing 
major source would be subject to review do not actually apply to any 
sources.
---------------------------------------------------------------------------

II. Final Action

    EPA is taking final action to approve all of the amendments to the 
Rules for the Control of Air Pollution in Idaho as submitted by the 
Director of IDEQ on May 22, 2003, April 2, 2004, July 13, 2005, May 5, 
2006, April 16, 2007, May 12, 2008, and June 8, 2009, except for 
certain sections listed below. This action will result in changes to 
the Idaho SIP in 40 CFR part 52, subpart N.

A. Rules To Approve into the Idaho SIP

    EPA approves into the SIP at 40 CFR part 52, subpart N, the Idaho 
regulations listed in Table 2. It is important to note that in those 
instances where IDEQ submitted multiple revisions to a single section 
of IDAPA 58.01.01, the most recent version of that section (based on 
state effective date) is incorporated into the SIP because it 
supersedes all previous revisions.

                                Table 2--Idaho Regulations for Proposed Approval
----------------------------------------------------------------------------------------------------------------
                                                                             State
            State citation                       Title/subject          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         4/11/2006
                                         of Sections 200 through 225
                                         and 400 through 461.
107...................................  Incorporations by Reference...        5/8/2009  Except Section 107.03(g)
                                                                                         through (n) and (p).
133...................................  Start-up, Shutdown and               4/11/2006
                                         Scheduled Maintenance
                                         Requirements.
134...................................  Upset, Breakdown and Safety          4/11/2006
                                         Requirements.
135...................................  Excess Emission Reports.......       4/11/2006
155...................................  Circumvention.................       4/11/2006
200...................................  Procedures and Requirements           4/2/2008
                                         for Permits to Construct.
201...................................  Permit to Construct Required..        7/1/2002
202...................................  Application Procedures........        4/6/2005
204...................................  Permit Requirements for New           4/2/2008
                                         Major Facilities or Major
                                         Modifications in
                                         Nonattainment Areas.
205...................................  Permit Requirements for New           4/2/2008
                                         Major Facilities or Major
                                         Modifications in Attainment
                                         or Unclassifiable Areas.
206...................................  Optional Offsets for Permits          4/6/2005
                                         to Construct.
209...................................  Procedures for Issuing Permits       4/11/2006
213...................................  Pre-Permit Construction.......       4/11/2006
220...................................  General Exemption Criteria for       4/11/2006
                                         Permit to Construct
                                         Exemptions.
222...................................  Category II Exemptions........       4/11/2006
400...................................  Procedures and Requirements           7/1/2002
                                         for Tier II Operating Permits.
401...................................  Tier II Operating Permit......        4/6/2005  Except 401.01.a
                                                                                         (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            4/11/2006
                                         Reduction Credits.
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       4/11/2006
                                         Classification.
581...................................  Prevention of Significant            4/11/2006
                                         Deterioration (PSD)
                                         Increments.
679...................................  Averaging Period..............       4/11/2006
700...................................  Particulate Matter Process            5/3/2003  More recent state rule
                                         Weight Limitations.                             effective date.
725...................................  Rules for Sulfur Content of           5/8/2009
                                         Fuels.
----------------------------------------------------------------------------------------------------------------

B. Rules on Which No Action Is Taken

    EPA is taking no action on the following rules:

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

[[Page 72724]]

58.01.01.225, Permit to Construct Processing Fee
58.01.01.228, Appeals
58.01.01.313, 317, 387-399, 395, Procedures and Requirements for Tier I 
Operating Permits
58.01.01.410, Appeals
58.01.01.175-181, Procedures and Requirements for Permits Establishing 
a Facility Emissions Cap
58.01.01.861, Standards of Performance of Hospital/Medical/Infectious 
Waste Incinerators

C. Scope of Action

    Idaho has not demonstrated authority to implement and enforce IDAPA 
Chapter 58 within ``Indian Country'' as defined in 18 U.S.C. 1151.\5\ 
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 shall include enforceable emission limits). This is 
consistent with EPA's previous approval of Idaho's PSD program, 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).
---------------------------------------------------------------------------

    \5\ ``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 running 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 Valley 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.
---------------------------------------------------------------------------

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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 Clean Air Act. 
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:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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 Clean Air Act; and
    <bullet> 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.
    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 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 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 January 25, 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: November 10, 2010.
Dennis J. McLerran,
Regional Administrator Region 10.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart N--Idaho

0
2. In Sec.  52.670(c), the table in paragraph (c) is amended:
0
a. By revising entries 006 and 007.
0
b. By revising entry 107.
0
c. By revising entry 200.
0
d. By revising entries 133 though 135.
0
e. By revising entry 155.
0
f. By revising entries 201 and 202.
0
g. By revising entries 204 through 206.
0
h. By revising entry 209.
0
i. By revising entry 213.
0
j. By revising entry 220.
0
k. By revising entry 222.
0
l. By revising entries 400 through 402.

[[Page 72725]]

0
m. By revising entry 404.
0
n. By revising entry 460.
0
o. By revising entries 511 through 513.
0
p. By revising entries 560 and 561.
0
q. By revising entry 575.
0
r. By revising entry 581.
0
s. By revising entry 679.
0
t. By revising entry 700.
0
u. By revising entry 725.


Sec.  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  4/11/06, 7/1/02, 4/5/00,               11/26/2010 [Insert page number where   Except Section
                                                        3/20/97, 5/1/94.....................   the document begins]                   006.55(b) (re:
                                                                                                                                      state air toxics
                                                                                                                                      in definition of
                                                                                                                                      ``modification'').
007.............................  Definitions for the  4/11/06, 4/5/00, 6/30/95,              11/26/2010 [Insert page number where
                                   Purposes of          5/1/95, 5/1/94......................   the document begins]
                                   Sections 200
                                   through 225 and
                                   400 through 461.
 
                                                                      * * * * * * *
107.............................  Incorporations by    5/8/09, 3/30/07, 3/20/04,              11/26/2010 [Insert page number where   Except Section
                                   Reference.           7/1/97, 5/1/94......................   the document begins]                   107.03(g) through
                                                                                                                                      (n) and (p).
 
                                                                      * * * * * * *
133.............................  Start-up, Shutdown   4/11/06, 4/5/00, 3/20/97.............  11/26/2010 [Insert page number where
                                   and Scheduled                                               the document begins]
                                   Maintenance
                                   Requirements.
134.............................  Upset, Breakdown     4/11/06, 4/5/00, 3/20/97.............  11/26/2010 [Insert page number where
                                   and Safety                                                  the document begins]
                                   Requirements.
135.............................  Excess Emission      4/11/06, 4/5/00, 3/20/97.............  11/26/2010 [Insert page number where
                                   Reports.                                                    the document begins]
 
                                                                      * * * * * * *
155.............................  Circumvention......  4/11/06..............................  11/26/2010 [Insert page number where
                                                                                               the document begins]
 
                                                                      * * * * * * *
200.............................  Procedures and       4/2/2008.............................  11/26/2010 [Insert page number where
                                   Requirements for                                            the document begins]
                                   Permits to
                                   Construct.
201.............................  Permit to Construct  7/1/02...............................  11/26/2010 [Insert page number where
                                   Required.                                                   the document begins]
202.............................  Application          4/6/05, 7/1/02, 4/5/00,                11/26/2010 [Insert page number where
                                   Procedures.          5/1/94..............................   the document begins]
 
                                                                      * * * * * * *
204.............................  Permit Requirements  4/2/08, 3/30/07, 4/6/05,               11/26/2010 [Insert page number where
                                   for New Major        4/5/00, 5/1/94......................   the document begins]
                                   Facilities or
                                   Major
                                   Modifications in
                                   Nonattainment
                                   Areas.
205.............................  Permit Requirements  4/2/08, 3/30/07, 4/6/05..............  11/26/2010 [Insert page number where
                                   for New Major                                               the document begins]
                                   Facilities or
                                   Major
                                   Modifications in
                                   Attainment or
                                   Unclassifiable
                                   Areas.
206.............................  Optional Offsets     4/6/05...............................  11/26/2010 [Insert page number where
                                   for Permits to                                              the document begins]
                                   Construct.

[[Page 72726]]

 
 
                                                                      * * * * * * *
209.............................  Procedures for       4/11/06, 4/6/05, 5/3/03,               11/26/2010 [Insert page number where
                                   Issuing Permits.     7/1/02, 4/5/00, 3/19/99,............   the document begins]
                                                        3/23/98, 5/1/94.....................
 
                                                                      * * * * * * *
213.............................  Pre-Permit           4/11/06, 5/3/03, 4/5/00,               11/26/2010 [Insert page number where
                                   Construction.        3/23/98.............................   the document begins]
 
                                                                      * * * * * * *
220.............................  General Exemption    4/11/06, 4/5/00......................  11/26/2010 [Insert page number where
                                   Criteria for                                                the document begins]
                                   Permit to
                                   Construct
                                   Exemptions.
 
                                                                      * * * * * * *
222.............................  Category II          4/11/06, 4/5/00, 5/1/94,               11/26/2010 [Insert page number where
                                   Exemptions.          7/1/97..............................   the document begins]
 
                                                                      * * * * * * *
400.............................  Procedures and       7/1/02...............................  11/26/2010 [Insert page number where
                                   Requirements for                                            the document begins]
                                   Tier II Operating
                                   Permits.
401.............................  Tier II Operating    4/6/05, 7/1/02, 4/5/00,                11/26/2010 [Insert page number where   Except 401.01.a
                                   Permit.              5/1/94..............................   the document begins]                   (bubbles) and
                                                                                                                                      401.04 (compliance
                                                                                                                                      date extension).
402.............................  Application          7/1/02, 5/1/94, 4/5/00,                11/26/2010 [Insert page number where
                                   Procedures.          7/1/02..............................   the document begins]
 
                                                                      * * * * * * *
404.............................  Procedure for        4/11/06, 4/5/00, 5/1/94,               11/26/2010 [Insert page number where
                                   Issuing Permits.     7/1/02..............................   the document begins]
 
                                                                      * * * * * * *
460.............................  Requirements for     4/11/06, 4/5/00, 5/1/94..............  11/26/2010 [Insert page number where
                                   Emission Reduction                                          the document begins]
                                   Credits.
 
                                                                      * * * * * * *
511.............................  Applicability......  4/11/06..............................  11/26/2010 [Insert page number where
                                                                                               the document begins]
512.............................  Definitions........  4/11/06, 5/1/94, 4/5/00..............  11/26/2010 [Insert page number where
                                                                                               the document begins]
513.............................  Requirements.......  4/11/06..............................  11/26/2010 [Insert page number where
                                                                                               the document begins]
 
                                                                      * * * * * * *
560.............................  Notification to      4/11/06..............................  11/26/2010 [Insert page number where
                                   Sources.                                                    the document begins]

[[Page 72727]]

 
561.............................  General Rules......  4/11/06, 5/1/94, 3/15/02.............  11/26/2010 [Insert page number where
                                                                                               the document begins]
 
                                                                      * * * * * * *
575.............................  Air Quality          4/11/06..............................  11/26/2010 [Insert page number where
                                   Standards and Area                                          the document begins]
                                   Classification.
 
                                                                      * * * * * * *
581.............................  Prevention of        4/11/06, 5/3/03, 7/1/97, 5/1/94......  11/26/2010 [Insert page number where
                                   Significant                                                 the document begins]
                                   Deterioration
                                   (PSD) Increments.
 
                                                                      * * * * * * *
679.............................  Averaging Period...  4/11/06, 5/1/94......................  11/26/2010 [Insert page number where
                                                                                               the document begins]
 
                                                                      * * * * * * *
700.............................  Particulate Matter   5/3/03, 4/5/00.......................  11/26/2010 [Insert page number where
                                   Process Weight                                              the document begins]
                                   Limitations.
 
                                                                      * * * * * * *
725.............................  Rules for Sulfur     5/8/09, 5/1/94.......................  11/26/2010 [Insert page number where
                                   Content of Fuels.                                           the document begins]
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2010-29628 Filed 11-24-10; 8:45 am]
BILLING CODE 6560-50-P