1 of 27 

## State Implementation Plan (SIP) Revisions to Idaho’s Air Quality Control Regulations 58.01.01

Technical Support Document

February 2010

Prepared By Dan Brown State and Tribal Air Programs Unit

Office of Air, Waste and Toxics

EPA Region 10, Seattle WA2 of 27 

### State Implementation Plan (SIP) Revisions to Idaho’s Air Quality Control Regulations 58.01.01 - Technical Support Document

Table of Contents

I. Purpose

II. SIP Submittals

III. Editorial Changes

IV. SIP Background, Summary, and Analysis

a. Annual Incorporation By Reference
b. New Source Review

c. Permit to Construct Exemptions
d. Permitting Fees

e. Soil Vapor Extraction
f. Hospital/Medical/Infectious Waste Incinerators

g. Nonmetallic Mineral Processing Plants
h. Permit Clarifications
i. Title V Operating Permit Fees j. Regulated Air Pollutants
k. Procedure for Transfer of Permits to Construct and Tier II Operating Permits
l. Facility Emissions Cap

m. Mercury

n. Sulfur Content of Fuels

V. Proposed Action

a. Rules to Approve into SIP
b. Rules to Remove from SIP

c. Rules to Take No Action on
d. Scope of Proposed Action3 of 27 I. Purpose

This Technical Support Document (TSD) s upports EPA’s action on a number of State Implementation (SIP) revisions the Idaho De partment of Environmental Quality (IDEQ) submitted to EPA Region 10 for approval into the Idaho SIP. Specifically, it describes the changes to Idaho Regulation 58.01.01, doc uments EPA’s evaluation of how these rules comply with EPA’s minimum requirements for SIPs, and explains the basis for EPA’s proposed action.

II. SIP Submittals

Table 1 includes a list of each SIP submittal including the date of submittal, brief description, date of state’s publ ic hearing and state rule eff ective date. Section IV below provides a more detailed description of each submittal along with EPA’s review and
recommended action.



### Table 1: SIP Submittals addressed in this TSD

SIP Submittal State Dates Date Title (Idaho Docket #) [Rules Revised] Public Hearing Board Adopted State
Effective

05/22/2003 Soil Vapor Extraction (58-0101-0102) [58.01.01.210] 02/06/01 10/18/01 03/15/02

05/22/2003 Incorporation Of Federal Regulations by Reference (58-0101-0103) [58.01.01.008 and 107] 08/08/01 10/18/01 03/15/02

05/22/2003 Hospital/Medical/Infectious Waste Incinerators (58-0101-0103) [58.01.01.861] 08/08/01 10/18/01 03/15/02

05/22/2003 Nonmetallic Mineral Processing Plants (58-0101-0002)[58.01.01.011, 201, 790- 799] 09/05/01 10/18/01 03/15/02

05/22/2003 Permit Clarification (58-0101-0202) [58.01.01.209, 213, 228, 313, 317, 395, 410, 511, 581, 700 and 710-724] 10/08/02 11/13/02 05/03/03

05/22/2003 Incorporation of Federal Regulations by Reference (58-0101-0202) [58.01.01.008 and 107] 10/08/02 11/13/02 05/03/03

05/22/2003 Permitting Fees (58-0101-0104) [58.01.01.01.224-228, 407-410, 470, 800-802 and editorial changes to IDAPA 58.01.01.006, 007, 200-202, 209, 400- 402 and 404] 10/09/01 11/08/01 07/01/024 of 27 05/22/2003 Title V Operating Permit Fees (58-0101- 0203)[58.01.01.387-399] 10/08/02 11/13/02 04/02/03

04/02/2004 Incorporation By Reference (58-0101- 0301)[58.01.01.008 and 107] 09/08/03 10/22/03 03/20/04

07/13/2005 New Source Review (58-0101-0304) [58.01.01.006, 200, 202, 204, 205, 206, 209, 225 and 401] 06/08/04 10/20/04 04/06/05

07/13/2005 Permit to Construct Exemptions (58- 0101-0401) [58.01.01.220 and 222] 10/04/04 11/18/04 04/06/05

07/13/2005 Incorporation By Reference (58-0101- 0402) [58.01.01.008, 107, 200, 204 and 205] 09/08/04 11/18/04 04/06/05

05/05/2006 Regulated Air Po llutants (58-0101-0503) [58.01.01.006-008, 133-135, 155, 213, 220, 440-442, 460, 511-513, 560-561, 575, 581, and 679] 09/07/05 11/17/05 04/11/06

05/05/2006 Incorporation By Reference (58-0101- 0505) [58.01.01.008, 107, 200, 204 and 205] 09/07/05 11/17/05 04/11/06

05/05/2006 Procedure for transfer of Permit to Construct and Tier II permits (58-0101- 0506)[58.01.01.006, 007, 209, and 404] 09/07/05 10/12/05 04/11/06

05/05/2006 Permit to Construct Exemptions (58- 0101-0507)[58.01.01.222] 10/11/05 11/17/05 04/11/06

05/05/2006 Facility Emissions Cap (58-0101- 0508)[58.01.01.175-181, 201 and 401] 11/04/05 11/17/05 04/11/06

04/16/2007 Incorporation By Reference (58-0101- 0602)[58.01.01.008, 107, 200, 204, 205] 10/10/06 11/16/06 03/30/07

04/16/2007 Mercury (58-0101-0603) [IDAPA 58.01.01.199] 11/03/06 11/16/06 03/30/07

05/12/2008 Incorporation by Reference (58-0101- 0701)[IDAPA 58.01.01.008, 107, 200, 204, 205] 09/06/07 10/10/07 04/02/08

06/08/2009 Sulfur Content of Fuels (58-0101-0703) [IDAPA 58.01.01.725] 6/10/08 10/09/08 05/08/09

06/08/2009 Incorporation by Reference (58-0101- 0802) [IDAPA 58.01.01.008,107] 09/09/08 10/09/08 05/08/09

III. Editorial Changes

It is important to note that in the years sinc e the last EPA approval of the Idaho Rules for
the Control of Air Pollution in Idaho, IDAPA 58.01.01, many se ctions of the rules have been revised to some degree. Many of these revisions have been minor editorial changes, re-numbering changes to citations for cross- referenced rules or statutes, changes in5 of 27 terminology (e.g., “air pollutant” instead of “ai r contaminant”) or grammatical
corrections. Section IV notes the various editorial changes in the SIP revisions submitted
to EPA. Section V notes the version of the state rule submitted to EPA that is proposed to be incorporated into the SIP, where appropri ate. This version incorporated into the SIP is generally the most recent version that includes all the previously submitted editorial
revisions.

IV. SIP Background, Summary, and Analysis

(a) Annual Incorporation by Reference

Background
IDAPA 58.01.01 – Rules for the Control of Air Pollution in Idaho incorporate by reference (IBR) various portions of federal regulation that have been 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, the original IBR in IDAPA 58.01.01 becomes out of date and, in some cases,
inconsistent with the revised version of the fede ral regulation in the CFR. To avoid potential inconsistencies and keep IDAPA 58.01.01 up to date with changes in federal regulations, IDEQ submits a revision to its SIP on an annual basis that updates IBR citations to reflect any changes that were made to the federal regulations during that year. The summary of submittals below includes the sections of IDAPA 58.01.01 that were updated each year with citations to the most cu rrent federal regulations as of the date of
the submittal.

Summary of SIP Submittals 2001 Annual Incorporation By Reference (IDAPA Docket 58-0101-0103) On May 22, 2003, IDEQ submitted revi sions to IDAPA 58.01.01.008 and 107 for approval into the SIP. The revisions update citations to federal regulations that are incorporated by reference to include those re vised as of July 1, 2001. The revisions were subject 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. It should be noted that these revisions were included with a rulemaking for Hospital/Medical/Infectious Waste Incinerato rs as noted in paragraph (f) below.

2002 Annual Incorporation By Reference (IDAPA Docket 58-0101-0202) On May 22, 2003, IDEQ submitted revi sions to IDAPA 58.01.01.008 and 107 for approval into the SIP. The revisions update citations to federal regulations that are incorporated by reference to include those re vised as of July 1, 2002. The revisions were subject to a public hearing on October 8, 2002, adopted by the Board of Environmental Quality on November 13, 2002, and became eff ective on May 3, 2003. It should be noted
that these revisions were incl uded with a rulemaking for Permit Clarifications as noted in paragraph (h) below.

2003 Annual Incorporation By Reference (IDAPA Docket 58-0101-0301)6 of 27 On April 2, 2004, IDEQ submitted re visions to IDAPA 58.01.01.008 and 107 for approval into the SIP. The revisions update citations to federal regulations that are incorporated by reference to include those re vised as of July 1, 2003. The revisions were subject to a public hearing on September 8, 2003, adopted by the Board of Environmental Quality on October 22, 2003, and became effective on March 20, 2004.

2004 Annual Incorporation By Reference (IDAPA Docket 58-0101-0402) On July 13, 2005, IDEQ submitted revisions to IDAPA 58.01.01.008, 107, 200, 204 and 205 for approval into the SIP. The revisions update citations to federal regulations that are incorporated by reference to include t hose revised as of July 1, 2004. The revisions were subject to a public hearing on Se ptember 9, 2004, adopted by the Board of Environmental Quality on November 18, 2004, and became effective on April 6, 2005.

2005 Annual Incorporation By Reference (IDAPA Docket 58-0101-0505) On May 5, 2006, IDEQ submitted revisions to IDAPA 58.01.01.008, 107, 200, 204 and 205 for approval into the SIP. The revisions update citations to federal regulations that are incorporated by reference to include t hose revised as of July 1, 2005. The revisions
also make an editorial correction to 58.01.01.209.05.a .iv. The revisions were subject to a public hearing on September 7, 2005, adopted by the Board of Environmental Quality on November 17, 2005, and became effective on April 11, 2007.

2006 Annual Incorporation By Reference (IDAPA Docket 58-0101-0602) On April 16, 2007, IDEQ submitted revisions to IDAPA 58.01.01.008, 107, 200, 204 and 205 for approval into the SIP. The revisions update citations to federal regulations that are incorporated by reference to include t hose revised as of July 1, 2006. The revisions
also strike out IBR of Implementation Plan for the Control of Air Pollution in the State of Idaho (SIP), Department of Environmental Quality, November 1996 . The revisions were subject to a public hearing on October 10, 2006, adopted by the Board of Environmental Quality on November 16, 2006, and became effective on March 30, 2007.

2007 Annual Incorporation By Reference (IDAPA Docket 58-0101-0701) On May 12, 2008, IDEQ submitted revisions to IDAPA 58.01.01.008, 107, 200, 204 and 205 for approval into the SIP. The revisions update citations to federal regulations that are incorporated by reference to include t hose revised as of July 1, 2007. The revisions also change the way federal regulatio n are IBR into IDAPA 58.01.01.200, 204 and 205. Rather than listing the IBR of federal regula tions in these three sections, each section now includes language stating that the applicab le federal regulations are incorporated by
reference into the rules at section 107. This revision will simplify future annual IBR updates by eliminating the need to update IBR in sections 200, 204 and 205. The revisions were subject to a public hearing on September 6, 2007, adopted by the Board of Environmental Quality on October 10, 2007, and became effective on April 2, 2008.

2008 Annual Incorporation By Reference (IDAPA Docket 58-0101-0802) On June 8, 2009, IDEQ submitted revisions to IDAPA 58.01.01.008 and 107 for approval into the SIP. The revisions update citations to federal regulations th at are incorporated by
reference to include those re vised as of July 1, 2008. The revisions were subject to a7 of 27 public hearing on September 9, 2008, adopted by the Board of Environmental Quality on October 9, 2008, and became effective on May 8, 2009.

Analysis The SIP revisions discussed above update on an annual basis Idaho’ s incorporation by
reference of the most recent federal re gulation references in IDAPA 58.01.01 and meet the requirements for approval into the SIP. Since the 2008 Annual Incorporation by Reference SIP supersedes the previous Annual IBR updates from 2001 through 2006, it
includes the most recent versions of IDAPA 58.01.01.008 and 107 that need to be incorporated into the SIP. Therefore, except as noted below, IDAPA 58.01.01.008 and
107 with a state effective date of May 8, 2008 are proposed for incorporation into the SIP at 40 CFR part 52. The 2007 Annual I BR revised IDAPA 58.01.01.200, 204 and 205 to change the way federal regulation are IBR in to those sections and, therefore, IDAPA 58.01.01.200, 204 and 205 with the effective date of April 2, 2008 are proposed for incorporation into the SIP at 40 CFR part 52. The revisi ons to IDAPA 58.01.01.008, Definitions for Purposes of Section 300 th rough 386, were included as part of the SIP submittal but are not part of the SIP and are not proposed for approval here since they are related to Idaho’s Tier I Operating Permit Program required under Title V of the Clean Air Act (Act or CAA).

As noted in our last approval of IDAPA 58.01.01.107, Documents Incorporated by Reference (68 FR 2217), EPA took no acti on on certain subsections of IDAPA 58.01.01.107.03 since they were not rela ted to the criteria pollu tants regulated under title I of the Act or the requirements for SIPs under section 110 of the Act (see proposed approval 67 FR52666). While the exact numberi ng/lettering of those subsections has changed pursuant to the revisions discusse d above, EPA is again taking no action on those sections previously identified as subsections 107.03 (h)-(o) and identified in the
most recent 2007 IBR rule as subsections 107.03 (g)-(n). In addition, EPA is taking no action on subsection 107.03 (p) fo r the same reason. Below is the regulatory text from IDAPA 58.01.01.107.03 with the appropriate sections struck out as they will be in the

SIP:

107. INCORPORATIONS BY REFERENCE.

***** 03. Documents Incorporated by Reference. Th e following documents are incorporated by reference into these rules: (5-1-94) a. Requirements for Preparatio n, Adoption, and Submittal of Implementation Plans and Appendix W to Part 51--Guideline on Air Quality Models. 40 CFR Part 51 revised as of July 1, 2008. The following portions of 40 CFR Part 51 are expressly excluded from any incorporation by reference into these rules: (5-8-09) i. All sections included in 40 CFR Part 51, Subpart P, Protection of Visibility, except that 40 CFR 51.301, 51.304(a), 51.307, and 51.308 are incorporated by reference into these rules; and (3-30-07) ii. Appendix Y to Part 51, Guidelines for BART Determinations Under the Regional Haze Rule. (3-30-07) b. National Primary and Secondary Ambient Air Qua lity Standards, 40 CFR Part 50, revised as of July 1, 2008. (5-8-09) c. Requirements for Preparation, Adoption, and Submittal of Implementation Plans, Protection of Visibility, 40 CFR 51.301, 51.304(a), 51.307, and 51 .308, revised as of July 1, 2008. (5-8-09)8 of 27 d. Approval and Promulgation of Implementation Plans, 40 CFR Part 52 revised as of July 1, 2008. (5-8-09) e. Ambient Air Monitoring Reference and Equivalent Methods, 40 CFR Part 53, revised as of July 1, 2008. (5-8-09) f. Ambient Air Quality Surveillance, Quality Assurance Requirements for Prevention of Significant Deterioration (PSD Air Monitoring), 40 CFR Part 58, Appendix B, revised as of July 1, 2008. (5-8-09)

g . Standards of Performance for New Stationary Sources, 40 CFR Part 60, revised as of July 1,
200 8 . ( 5

- 8

- 0 9 )
h. National Emission Standards for Hazardous Air Po llutants, 40 CFR Part 61, revised as of July 1, 200 8 . ( 5

- 8

- 0 9 )
i. National Emission Standards f or Hazardous Air Pollutants for Source Categories, 40 CFR Part 63, revised as of July 1, 200 8 . ( 5

- 8

- 0 9 ) j. Compliance Assurance Monitoring, 40 CFR Par t 64, revised as of July 1, 2008 . ( 5

- 8

- 0 9 ) k. Permits, 40 CFR Part 72, revised as of July 1, 200 8 . ( 5

- 8

- 0 9 ) l. Sulfur Dioxide Allowance System, 40 CFR Part 73, revised as of July 1, 200 8 . ( 5

- 8

- 0 9 ) m. Protection of Stratospheric Ozone, 40 CFR Part 82, revised as of July 1, 200 8 . ( 5

- 8

- 0 9 ) n. Clean Air Act, 42 U.S.C. Sections 7401 through 7671g (1997). (3

- 19

- 99) o. Determining Conformity of Federal Actions to State or Federal Implementation Plans: Conformity to State or Federal Implementation Plans of Transportation Plans, Programs and Projects Developed, Funded or Approved Under Title 23 U.S.C. or the Fe deral Transit Laws, 40 CFR Part 93, Subpart A, Sections 93.100 through 93.129, revised as of July 1, 2008, except that Sections 93.102(c), 93.104(d), 93.104(e)(2), 93.105, 93.109(c)-(f), 93.118(e), 93.119(f)(3), 93.120(a)(2), 93.121(a)(1), and 93.124(b) are expressly omitted from the incorporation by reference. (5-8-09) p. The final rule for Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units, 70 Fed. Reg. 28,606 (May 18, 2005), corrected at 70 Fed. Reg.
5 1,266 the final rule for Standards of Performance for Electric Utility Steam Generating Units,
Industrial

- Commercial

- Institutional Steam Generating Units, and Small Industrial

- Commercial

Institutional Steam Generating Units, only as it applies to coal fire d electric steam generating units as defined in 40 CFR 60.24, 71 Fed. Reg. 98 65 (February 27, 2006); Re vision of December 2000 Clean Air Act Section 112(n) Finding Regardin g Electric Utility Steam Generating Units; and
Standards of Performance for New and Existing Electric Utility Steam Generating Units: Reconsideration, 71 Fed. Reg. 33,388 (June 9, 2006) are expressly excluded from any incorporation by reference into these rules. (3

- 30

- 07)

(b) Major New Source Review (major NSR) regulations (IDAPA Docket 58-0101- 0304)

Background 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 cont rol technology program requirements. States adopt major NSR programs as part of their SIP.

Part C of title I of the CAA, 42 U.S.C. 7470-7492, is the “Prevention of Significant Deterioration” or “PSD” program, which appl ies in areas that meet the NAAQS (i.e., “attainment” areas) as well as in areas for which there is insufficient information to determine whether the area meets the NAAQS (i .e., “unclassifiable” areas). Part D of9 of 27 title I of the CAA, 42 U.S.C. 7501-7515, is called the “Nonattainment New Source Review” or the “NNSR” program, which applies in areas that ar e not in attainment of the NAAQS (i.e., “nonattainment areas”). EPA re gulations implementing these programs are contained in 40 CFR 51.165, 51.166, 52.21, 52.24, and part 51, appendix S.

On December 31, 2002, EPA published final rule changes to the PSD and NNSR programs. 67 FR 80186. 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 that November 7, 2003 final action, EPA added th e definition of “replacement unit,” and clarified an issue regarding plantwide applicability limitations (PALs). The December 31, 2002 and the November 7, 2003, final actions, ar e collectively referre d 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 method for determining baseline actual emissions; (2) adopt an actual-to-projected -actual methodology for determining whether a major modification has occurred; (3) allow major stationary sources to comply with plant-wide applicability limits to avoid having a significant emissions increase that triggers the requirements of the major NS R program; (4) provide a new applicability provision for emissions units that are desi gnated clean units; and (5) exclude pollution control projects from the definition of “phys ical 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 ch allenges 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 Ru les pertaining to clean units and pollution control projects, remanded a portion of th e rules regarding recordkeeping (40 CFR 52.21(r)(6) and 40 CFR 51.166(r)(6)), and either upheld or did not comment on the other provisions included as part of the 2002 NS R Reform Rules. On June 13, 2007 (72 FR 32526), EPA took final action to revise the 2002 NSR Reform Rules to remove from federal law all provisions pert aining 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 source emissions equal or exceed 50 percent of the CAA major NSR significance levels for any pollutant (72 FR 72607). The ``reasonable possibility'' provision identifies for sources and reviewing authorities the circumstances under which a major stationary source undergoing a modification that does not trigger major NSR must keep records.10 of 27 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.

Summary of Idaho’s Submittal Idaho’s major NSR program has been revised over the years and the state rule with a state effective date of April 5, 2000 is the version currently approved into the SIP. EPA determined this version of IDEQ’s major NS R rules met the requirements of 40 CFR part 51, subpart I, in effect at that time, a nd approved the rule on January 16, 2003 (68 FR 2217) with an EPA effective date of February 18, 2003. On July 13, 2005, IDEQ submitted revisions to its major NSR rules to incorporate EPA’s major NSR reform provisions. Specifically, I DAPA 58.01.01.006, 200, 202, 204, 205, 206, 209, 225 and 401were 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 Octobe r 20, 2004, and became effective in Idaho on April 6, 2005. Idaho developed these latest revisions by comparing the federal major NSR regulations in 40 CFR Part 51 and 52 to the existing state rules. The primary
sections revised include IDAPA 58.01.01.204 and 205. Rather than delineate the entire federal major NSR rules, Idaho chose to in corporate by reference the appropriate major NSR reform portions of the federal program requirements maintaining the remainder of its previously approved major NSR rules not affected by major NSR reform. IDEQ’s newly revised regulations and July 13, 2005 SI P revision were analyzed for meeting the specific requirements of major NSR reform meas ures as discussed further below. Please see EPA’s January 16, 2003 approval of IDEQ ’s major NSR rules (68 FR 2217) for a discussion of our approval of the portions of the rules that were not changed by major NSR reform. As noted in paragraph IV(a) above, IDEQ submits an annual update to its rules that IBR federal regulati ons, thus keeping the state rule s up to date with changes in
the federal rules.

58.01.01.006 General Definitions , was revised to remove definitions for Major Facility and Major Modification from the General Defi nitions and to revise the numbering of subsequent definitions.

58.01.01.200 Procedures and Requirements for Permits to Construct , was revised to specify that a Major Facility is a Major Stat ionary Source as define d in 40 CFR 52.21(b) and a Major Modification is the same as a Major Modification as defined in 40 CFR 52.21(b).

58.01.01.202 Application Procedures , was revised to remove the exceptions for Major Facilities and Major Modifi cations consistent with the definitional changes in
58.01.01.200.

58.01.01.204 Permit Requirements for New Major F acilities or Major Modifications in
Nonattainment Areas , was revised to expressly state that the intent of the rule is to incorporate the federal nonattainment NSR rule requirements. IDAPA 58.01.01.204.01
includes a table of the sections of 40 CFR 51.165 and 52.21, as revised through11 of 27 November 7, 2003, 1 that are incorporated by re ference. IDAPA 58.01.01.204.02 and 03
include minor additional revisions for consis tency with these changes. Below are the federal rules incorporated by reference in IDAPA 58.01.01.204:

 40 CFR 51.165(a)(1) regarding definitions.

 40 CFR 51.165(a)(2)(ii) through 51.165( a)(3) regarding applicability. 2

 40 CFR 51.165(a)(6)(i)-(iv) regarding applicability.

 40 CFR.165(c) regarding Clean Unit Test for Emission Units that are Subject to LAER. However, on July 24, 2006, ID EQ amended the July 13, 2005 SIP revision by requesting that EPA not act on the clean unit and pollution control project provisions included in IDAPA Docket 58-0101-0304 since these provisions were being removed from the state rule consistent with the vacature of these provisions from the federal rule. This citation was removed from IDAPA Ch. 58 by subsequent annual IBR update SIP revisions (see paragraph IV(a) above).

 40 CFR 165(d) regarding Clean Unit Provi sions for Emission Units that Achieve an Emission Limitation Comparable to LAER. However, on July 24, 2006, IDEQ amended the July 13, 2005 SIP revision by requesting that EPA not act on the clean unit and pollution control project pr ovisions included in IDAPA Docket 58- 0101-0304 since these provisions were be ing removed from the state rule consistent with the vacature of these provi sions from the federal rule. This citation was removed from IDAPA Ch. 58 by subs equent annual IBR upda te SIP revisions (see paragraph IV(a) above).

 40 CFR 52.21 (z)(1)-(3) and (5) rega rding 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 pollution control project provisions included in IDAPA Docket 58-0101-0304 since these provisions were being removed from the state rule consistent with the vacature of these provisions from the federal rule. This citation was removed from IDAPA Ch. 58 by subsequent annual IBR update SIP revisions (see paragraph IV(a) above).

 40 CFR 52.21(aa) Regarding Actual PA Ls, which meets the provisions of 51.165(f).

58.01.01.205 Permit Requirements for New Major F acilities or Major Modifications in
Attainment or Unclassifiable Areas , was revised to expressly st ate that the intent of the rule is to incorporate the federal PSD rule requirements. IDAPA 58.01.01.205.01

1 IDEQ annually submits updates to its Incorporation By Reference (IBR) of federal rules. Subsequent to the July 13, 2005 SIP revisions, annual IBR updates have occurred as outlined in paragraph IV(a) above, making Idaho’s rules consistent with the changes that have occurred in the federal rules through July 2008.

2 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 incorporate by reference 40 CFR 51.165(a)(2)(ii)(A) through 51.165(a)(3)(ii)(J). Section 51.165(a)(2)(ii) includes sub-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 st ating 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 CF R 51.165(a)(2)(ii) through 51.165(a)(3). ]12 of 27 includes a table of the sections of 40 CFR 52.21, as revised through November 7, 2003, 3
incorporated by reference and replace prev ious state specific provisions in IDAPA 58.01.01.205.01–04. IDAPA 58.01.01.205.02 specifies, wher e appropriate, those section of incorporated 40 CFR 52.21 where the use of the word “Administrator” means the “Department” and IDAPA 58.01.01.205.03 specifies existing requirements for non-major sources that are exempted or excluded fr om 40 CFR 52.21. Below are the federal rules incorporated by reference into IDAPA 58.01.01.205:

 40 CFR 52.21(a)(2) Appli cability 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) Innovativ e Control Technology

 40 CFR 52.21(w) Permit Rescission

 40 CFR 52.21(x) Clean Unit Te st for Emissions Units th at are Subject to BACT or LAER. However, on July 24, 2006 IDEQ amended the July 13, 2005 SIP revision by requesting that EPA not act on the clean unit and pollution control project provisions included in IDAPA Docket 58-0101-0304 since these provisions were being removed from the state rule consistent with the vacature of these provisions from the federal rule. This citation was removed from IDAPA Ch. 58 by subsequent annual IBR update SIP revisions (see paragraph IV(a) above).

 40 CFR 52.21(y) Clean Unit Provisions for Emissions Units that Achieve an Emission Limitation Comparable to BA CT. However, on July 24, 2006 IDEQ amended the July 13, 2005 SIP revision by requesting that EPA not act on the clean unit and pollution control project pr ovisions included in IDAPA Docket 58- 0101-0304 since these provisions were be ing removed from the state rule
consistent with the vacature of these provisions from the federal rule. This
citation was removed from IDAPA Ch. 58 by subsequent annual IBR update SIP revisions (see paragraph IV(a) above).

 40 CFR 52.21(z)(1)-(3) and (6) PCP Excl usion Procedural Requirements. However, on July 24, 2006 IDEQ amended the July 13, 2005 SIP revision by requesting that EPA not act on the cl ean unit and pollution control project provisions included in IDAP A Docket 58-0101-0304 since these provisions were being removed from the state rule consistent with the vacature of these provisions
from the federal rule. This citation was ultimately removed from IDAPA Ch. 58 by subsequent annual IBR update SIP re visions (see paragraph IV(a) above).

 40 CFR 52.21(aa) Actuals PALs

3 IDEQ annually submits updates to its Incorporation By Reference (IBR) of federal rules. Subsequent to the July 13, 2005 SIP revisions, annual IBR updates have occurred as outlined in paragraph IV(a) above making Idaho’s rules consistent with the changes that have occurred in the federal rules through July 2008.13 of 27 58.01.01.206 Optional Offsets for Permits to Construct , was revised to change crossreferences to subsections for consistency with the above changes.

58.01.01.209 Procedures for Issuing Permits , was revised to remove the exceptions for Major Facilities and Major Modifications cons istent with the definitional changes in
IDAPA 58.01.01.200.

58.01.01.225 Permit to Construct Processing Fee , was revised for consistency with definitional changes in IDAPA 58.01.01.205. 58.01.01.401 Tier II Operating Permit , was revised for consistency with changes to
IDAPA 58.01.01.204.

Analysis
The MAJOR NSR SIP submission described above meets the EPA MAJOR NSR reform requirements for SIP-approved MAJOR NS R programs in 40 CFR 51.165 and 166 and
52.21. The revised rules address baseline actua l emissions, actual-to-projected actual applicability tests, PALs, and other current ly applicable provisions of EPA’s 2002 NSR Reform Rules. In fact, as described a bove, the majority of the federal MAJOR NSR Reform provisions in 40 CFR 51.165 and 52.21 are incorporated by reference directly into Idaho regulations. Also as noted above, several of these sections (related to Clean Unit and PCP provisions) have been vacated by the court and removed from both the federal and state regulations. As discussed in the “Annual Incorporation by Reference” section above, IDEQ has submitted additional annual IBR updates to keep the state rules consistent with changes to the federal MAJOR NSR rules. As described in section IV(a) above, IDEQ’s most recent IBR update revision includes citations to federal regulations revised as of July 1, 2008 with a st ate effective date of May 8, 2009.

(c) Permit to Construct Exemptions (IDAPA Docket 58-0101-0401) and (IDAPA Docket 58.0101-0507).

Background

EPA’s previous actions to approve revisions to Idaho’s Permit to Construct Exemptions
included a detailed discussion of EPA’s an alysis in the August 13, 2002 Proposed Rule (67 FR 52666) and the January 16, 2003 Final Rule (68 FR 2217). Portions of this discussion are discussed below as they relate to these newly proposed SIP revisions.

In the August 13, 2002 Proposed Rule (67 FR 52666), EPA noted that IDAPA 58.01.01.220.01.a.iii requires that, to be exempt from minor NSR permitting in Idaho, the

source must not cause or cont ribute to a NAAQS violation as determined by modeling the impact of a source’s uncontrolled potential to emit. However, this requirement was only
one of several criteria sour ces must meet to be a non-major source exempt from permitting requirements. Other criteria include: (1) the source’s uncontrolle d potential to emit must be less than 100 tpy (IDAPA 58.010.0.220.01.a.i);14 of 27 (2) the source’s uncontrolled potential to emit must not increase emissions of a major facility by more than the significant emission rates (IDAPA 58.01.01.220.01.a.ii); (3) the modeled impact of the source’s uncontrolled potential to emit must not cause or contribute to a NAAQS violation (IDAP A 58.01.01.220.01.a.iii); (4) the source cannot be part of a new ma jor facility or a major modification of an existing major facility (IDAPA 58.01.01.220.01.b); and (5) either the controlled potential emissi ons must be “below regulatory concern,” which is generally defined as less than 10% of the significant emission rates (IDAPA 58.01.01.221) or the source must be on a list of categorically exempt sources (IDAPA.58.01.01.222).

EPA further noted that the modeling requirement is usually an element of the permitting process itself and, therefore, is not typically included as cr iteria a source must meet to qualify for an exemption from the permitting process. As a result, Idaho’s requirement for self-modeling as an additional exemption criterion only further narrows exemption provisions which would be approvable even without the modeling provision. Therefore, when EPA approved these minor new source re view exemption provisions as part of Idaho’s SIP, it noted in the Final Rule (68 FR 2217) that it did not base its approval on this modeling requirement, but rather on its de termination that the emission levels and source categories are appropriately exempt ed from minor new source review. EPA further noted that the requirement in IDAPA 58.01.01.220.01.a.iii that a source conduct modeling to show that its uncontrolled potential to emit will not cause or contribute to a NAAQS violation is a determination that is initially made by th e source and is not submitted to IDEQ unless specifically requested.

The August 13, 2002 Proposed Rule (67 FR 52666) and January 16, 2003 Final Rule (68 FR 2217) also discussed the provision in IDAPA 58.01.01.222.03 allowing Idaho to add
individual sources to the categorical insignificant list without rulemaking (or SIP revision). EPA noted that the “direc tor’s discretion” provisions in IDAPA 58.01.01.222.03 and 222.01.f do not meet the requireme nts of section 110 of the CAA and, therefore, did not appr ove these provision into th e SIP (see 68 FR 2217).

In response to EPA’s actions discussed a bove and upon further review of the modeling provision in the context Section 110 of the Clean Air Act, IDEQ removed the modeling requirements from IDAPA 58.01.01.220, noting th at the federal gove rnment provides States with the primary responsibility to es tablish minor air quality permitting programs to ensure that air quality attains and maintains the NAAQS and thus, by removing the modeling provision, Idaho’s rule achieves this purpose, with out being “broader in scope or more stringent than federal law or regul ation,” consistent with Idaho Code 39-107D. IDEQ has submitted this change as a SIP re vision. IDEQ also removed the director discretion provisions consistent with the discussion above and has submitted these
revisions to its rule s as a SIP revision.

Summary of IDEQ SIP Submittals15 of 27 On July 13, 2005 (58-0101-0401) and May 5, 2006 (58-0101-0507), IDEQ submitted two separate SIP revisions to its Permit to Construct Exemption Rules IDAPA 58.01.01.220 and 222 for approval into the SIP. The July 13, 2005 revisions were subject to a public hearing on October 4, 2004, adopted by th e Board of Environmental Quality on November 18, 2004, and became effective on April 6, 2005. The May 5, 2006 revisions 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 revisions to IDAPA 58.01.01.220 and 222 deta iled below were made to address certain criteria for permit to construct ex emptions that EPA highlighted in its 2003 approval of the Idaho SIP discussed above.

58.01.01.220 – General Exemption Criteria fo r Permit to Construct Exemptions , was revised to strike-out the modeling pr ovisions included in IDAPA 58.01.01.220.01.a.iii.

58.01.01.222 – Category II Exemptions , was revised to strike out the “director’s discretion” provisions in IDAPA 58.01.01.222.01.f and 222.03. In addition to addressing the issues raised by EPA regarding “Direct or’s discretion,” 58.01.01.222 is revised at paragraph 1.d, to change the criteria for internal combusti on engines (ICEs) operating for emergency purposes from operating for less than 200 hours to operating less than 500 hours. Paragraph 2.c is changed to add bi ogas as an allowable fuel for fuel burning equipment with capacity less than 50 million BTU per hour used for indirect heating and heating or reheating furnaces, providing that the hydrogen sulfide concentration is below 200 ppmv. Three new paragraphs were al so added to other exempt sources:

 paragraph 2.i adding multiple chamber crematories providing they use natural gas exclusively, have a maximum average ch arge capacity of 200 pounds of remains per hour and minimum secondary com bustion chamber temperature of 1500 degrees Fahrenheit;

 paragraph 2.j adding petroleum enviro nmental remediation source by vapor extraction providing the operati on life is less than five years and the short term adjustment factor for air toxics (I DAPA 58.01.01.210.15) is not used if source is within 500 feet of a sensitive receptor; and

 paragraph 2.k adding dry cleaning facilitie s providing they are not major under, but are subject to, 40 CFR Part 63 Subpart M.

Analysis Idaho’s July 13, 2005 rule revisions were revi ewed in the context of EPA’s previous statements (67 FR 52666, 68 FR 2217) th at the modeling pr ovisions in IDAPA 58.01.01.220.01.a.iii are not a necessary part of th e permit to construct exemptions and EPA’s approval of those exemptions did not rely on the modeling provisions; and, that provisions for “director’s discretion” are not appropriate for appr oval into a SIP.

Idaho’s July 13, 2005 revisions address, in pa rt, issues raised by EPA and should be approved. It is important to note that , although Idaho is removing the modeling requirement from its permit to construct exemptions, IDEQ retains the legal authority pursuant to IDAPA 58.01.01.401.03 to require a source to obtain an air quality permit to16 of 27 ensure compliance with applicable rules, including the national ambient air quality
standards.

Idaho’s May 5, 2006 revisions address the re maining issues rega rding “director’s discretion” and expand the Permit to Construct Exemptions for certain sources. In an email from Michael Simon, IDEQ, to Dan Br own, EPA Region 10, dated December 2, 2008, IDEQ further explained the rational fo r exempting these sources as follows:

Crematories were added based on IDEQ’s historical permitting of these sources which found that if they were built to good combustion standards, the units never
caused or contributed to a violation of the NAAQS. Th erefore, the source was a good candidate for being a listed as an exempt source if they met the design
criteria established in IDAPA 58.01.01.222.2.i.

Soil vapor extraction units for petroleum remediation activities were also historically permitted by IDEQ and never required modeling to ensure compliance with the NAAQS (and never contributed to a NAAQS violation) since the main emissions were toxic air pollutants. Ther efore, they were good candidates to list as exempt sources providing they met th e criteria for air toxics specified in IDAPA 58.01.01.222.2.j.

Similarly, dry cleaners were added as an exempt source since they are a toxic air pollutant source never requiring modeling to ensure compliance with the NAAQS (and never contributed to a NAAQS).

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 IDAPA 58.01.01.220 which includes the general exemption criteria for PTC, further limiting the scope of IDEQ’s source-category exemp tions. Section 220.01.a requires that the maximum capacity of a source to emit an ai r pollutant under its phys ical and operational design without consideration of limitations on emission such as air pollution control equipment, restrictions on hours of operation and restrictions on th e type and amount of material combusted, stored or processed woul d not: i. Equal or ex ceed one hundred (100) tons per year of any regulated air pollutant. ii. Cause an increase in the emissions of a major facility that equals or exceeds the significant emissions rates set out in the definition of significant at Section 006.

(d) Permitting Fees (58-0101-0104)

Background In its May 22, 2003 SIP revision, IDEQ submitted several rule revision (see Table 1) and noted that some of the rules, including those revisions that establish or revise permitting fees, were only included in the SIP submittal for informational purposes and that IDEQ
does not intend that EPA include the fee related rules into the SIP. However, concurrent with the revisions to fee rules, minor editorial changes have b een made to certain sections17 of 27 of IDAPA 58.01.01 that are already part of the SIP and, ther efore, the SIP will be revised to include the updated sections noted below.

Summary of IDEQ SIP Submittal On May 22, 2003 IDEQ, submitted revisions to IDAPA 58.01.01.224 through 228, 407 through 410, 470 and 800 through 802. In addi tion, editorial changes were made to IDAPA 58.01.01.006, 007, 200-202, 209, 400-402 and 404. The revisions were subject to a public hearing on October 9, 2001, adopted by the Board of Environmental Quality on November 8, 2001, and became effective on July 1, 2002.

The revisions to IDAPA 58.01.01.224-228, 407-410 a nd 800-802 deal with the collection of various fees associated with IDEQ’s Pe rmit to Construct and Tier I and II Operating Permits programs and are not being incorporat ed into the SIP per IDEQ’s request.

IDAPA 58.01.01.470 was revised to become a “res erved” paragraph as the provisions for Permit Application Fees for Tier II Perm its previously in this paragraph were incorporated into IDAPA 58.01.01.407 Tier II Operating Permit Processing Fee.

Analysis The editorial changes to IDAP A 58.01.01.006, 007, 200-202, 209, 400-402 and 404 are appropriate and should be incorporated into the SIP, updating the current version of those sections in the SIP. In addition, the revision to IDAPA 58.01.01.470, striking the existing language and making this a reserved paragra ph should be reflected in the SIP by striking this paragraph from the SIP.

EPA is taking no action on IDAPA 58.01.01.224-228, 407-410 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 pollutants regulated under title I of the CAA or to the requirements for SIPs under section 110 of the Act. While the fee provisions associated with Permits to C onstruct and Tier II permits are related to criteria pollutant pr ograms under title I of the Act, IDEQ has requested that these provisions not be included in the SIP because of the frequency of
revisions to the fee rules.

(e) Soil Vapor Extraction (58-0101-0102)

Background In its May 22, 2003 SIP revision, IDEQ submitted revisions to IDAPA 58.01.01.210, Demonstration of Preconstruction Compliance wi th Toxic Standards, to resolve potential conflicts with IDADA 58.01.01.513 regarding good engineering practices and dispersion techniques in permitting sources with stacks. The primary purpose of the change was to allow IDEQ’s petroleum remediation policy to continue.

Summary of IDEQ SIP Submittal On May 22, 2003 IDEQ submitted revisions 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 any18 of 27 environmental remediation source that functi ons to remediate or recover any release, spill, leak, discharge or disposal of any petr oleum product. The revisions were 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.

Analysis This portion of the May 22, 2003 submittal deals with IDEQ’s air toxic regulations and is not currently in the Idaho SIP. Because this regulation does 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 not taki ng any action on this provision.

(f) Hospital/Medical/Infectious Waste Incinerators (58-0101-0103)

Background/Summary of IDEQ SIP Submittal In its May 22, 2003 SIP revision, IDEQ submitted revisions to IDAPA 58.01.01.861, Standards of Performance of Hospital/Medica l/Infectious Waste Incinerators, to clarify that owners or operators of hospital/medical/infectious waste incinerators subject to IDAPA 58.01.01.861 must comply with the provi sions of Section 39-128. The proposed rule also included IDEQ’s annual IBR submitta l which is discussed in paragraph IV (a) above. The revisions were subject to a public hearing on August 8, 2001, adopted by the Board of Environmental Quality on Oct ober 18, 2001, and became effective on March 15, 2002.

Analysis Although this rule is an important part of IDEQ’s overall air program, IDAPA 58.01.01.861 is not currently in the Idaho SIP and is not related to requirements for SIPs under section 110 of the Act. Therefore, EPA is not taking any action on these provisions.

(g) Nonmetallic Mineral Processing Pl ants (58-0101-0002 and a portion of 58-0101- 0703)

At this time we are taking no action on the Nonmetallic Mineral Processing Plants portion of IDEQ’s May 22, 2003 SIP submittal or the revision to the Nonmetallic Mineral Processing Plants portion of the June 8, 2009 submittal. We will take action on the Nonmetallic Mineral Processing Plant SIP in a separate rulemaking.

(h) Permit Clarific ation (58-0101-0202)

Background IDEQ’s May 22, 2003 SIP revision included revi sions to numerous rules as noted in
Table 1. In the Permit Clarification rule making IDEQ submitted 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.19 of 27 As noted below, some of the rule revisions included in the submittal are not appropriate to incorporate into the SIP because they are not directly related to criteria pollutants. The proposed rule making also included IDEQ’s annual IBR submittal which is discussed in paragraph IV(a) above.

Summary of IDEQ SIP Submittal On May 22, 2003 IDEQ submitted revisions to IDAPA 58.01.01.209, 213, 228, 313, 317, 395, 410, 511, 581, 700 and 710-724. The revisions we re subject to a public hearing on October 8, 2002, adopted by the Board of E nvironmental 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 essentially delete previous revisions made to particulate matter process weight limitations. IDAPA 58.01.01.209.01.c and 701.01 were changed back to re flect existing lang uage in the SIP
and Section 710 was struck entire ly leaving Sections 710-724 as reserved sections. IDEQ made these revisions to IDAPA 58.01.01 because EPA had determined that changes IDEQ had made to its particulate matter pro cess weight limitations were less stringent than those currently in the SIP. Esse ntially, these rule re visions make IDAPA 58.01.01.209, 700 and 710 consistent the currently approved SIP.

The revisions to IDAPA 58.01.01.213 and 511 and 581 include minor editorial changes for clarification and/or correcting cr oss-referencing section numbers.

The revisions to IDAPA 58.01.01.313 and 317 revi se the Tier I operating permit rules which are not part of the SIP. Sim ilarly, the revisions 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 pe rmits. Since EPA does not incorporate the operating permit or permit fees into the SIP, no action is required on this submittal.

It should be noted that the original rulemaking proposal fr om IDEQ included additional changes to IDAPA 58.01.01.106, 203, 401, 404, 405, 585 and 586, which where withdrawn form the rulemaking as a re sult of the public comment process.

Analysis
The editorial revisions to IDAPA 58 .01.01.213, 511, and 581, updating those sections of the SIP, should be approved.

The following revisions are not related to criteria polluta nts or precursors and are otherwise not appropriate for inclusion into the SIP: IDAPA 58.01.01.331 and 317 regarding Tier I Operating Permits and IDAPA 58.01.01.228, 395 and 410 regarding appeals of permit fees.

As noted above, the rule revisions related to particulate matter process weights were made to delete those provisions from IDAPA 58.01.01.209, 700 and 710, making those
sections consistent with those that are al ready approved into the SIP and, therefore, no SIP action is necessarily need ed on that portion of the SIP. However, to maintain20 of 27 consistency between the federally approved rule s and state rules, specifically regarding the state rule effective dates, IDAPA 58.01.01.700 with a state effective date of May 3, 2003 should be approved into the SIP. A mo re recently updated version of IDAPA 58.01.01.209 is being approved into the SIP in accordance with the SIP revisions discussed in paragraph (k) below.

(i) Title V Operating P ermit Fees (58-0101-0203)

Background/ Summary of IDEQ SIP Submittal On May 22, 2003, IDEQ submitted revisions to IDAPA 58.01.01.387-399. The revisions were subject to a public hearing on Oc tober 8, 2002, adopted by the Board of Environmental Quality on November 13, 2002, and became effective on April 2, 2003. In its submittal IDEQ noted that some of the re vised rules, particularly those related to its operating permit program, would not be incorporat ed into the SIP. The revisions to deal with the implementation of ID EQ’s Tier I operating permit program under Title V of the Clean Air Act and are not being in corporated into the SIP.

Analysis
IDAPA 58.01.01.387-399 is not related to the criteria pollutants regulated under title I of the CAA or to the requirements for SIPs unde r section 110 of the Act and, therefore, EPA is not taking any action on these provisions.

(j) Regulated Air Pollutants (58-0101-0503)

Background In its May 5, 2006 SIP revision, IDEQ submitte d revisions to several of its rules to incorporate a new definition for “regulated air pollutant.” These revisions were in response to Idaho Code 39-115, which requires that the term “regulated air pollutant”
under Idaho law be consistent with federal re quirements with respect to the treatment of fugitive emissions in determining applicability for operating permits and permits to construct (i.e. major and minor NSR permits). IDEQ published a Notice of Intent to Promulgate Rules announcing a May 10, 2005 ki ck-off for a negotiated rulemaking. The text of the proposed and final rule re visions was drafted through the negotiated rulemaking process.

Summary of IDEQ SIP Submittal 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. The revisions were subject to a public hearing 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 rega rding the submission of the rule as a SIP revision. On September 25, 2009, IDEQ submitted supplemental information for this SIP clarifying how fugitive emissions are treated in its minor source program and transmitting the December 5, 2005 hearing report.21 of 27 IDAPA 58.01.01.006 was revised to modify the defi nition of “regulated air pollutant” to
be consistent with federal rules. In addition, IDEQ revise d the definition of “modification” by adding language stating “Fugiti ve emissions shall not be considered in determining whether a permit is required fo r a modification unless required by federal law,” and breaking out the definiti on into subsections. IDAPA 58.01.01.006.55.b pertains to the “state only” toxics air pollutant program and is not appropriate to incorporate into the SIP.

Additional editorial revisions we re made 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 definitional changes to “m odification” and “regulated air pollutant.” Similar editorial changes were ma de to sections IDAPA 58.01.01.008, 440 and 441, although these sections are not in the SIP 4

.

Analysis
The revisions to the definitions have been re viewed and determined to be approvable. The revisions make the treatment of fugitive emissions in determining major source and major modification thresholds c onsistent with federal NSR rules. The rule change also means that IDEQs treatment of fugitive emissions will change when changes are made to federal rules, even in the absence of state rule changes. On December 19, 2008, EPA promulgated a final rulemaking regarding its reconsideration of the inclusion of fugitive emissions in the NSR program (73 FR 77882). In this “fugitive emissions” rulemaking EPA responded to a petition for reconsider ation by Newmont Mini ng Corporation and made the treatment of fugitive emissions for determining major modifications consistent with the treatment of fugitive emissions fo r determining major source thresholds. In brief, this rulemaking required that fugitive emissions be included in determining whether a physical change or change in operation resu lts in a major modification only for sources in source categories designate d through rulemaking pursuant to 302(j) of the Act (i.e., “listed sources”). The change to treatment of fugitive emissions became effective in the federal NSR program on January 20, 2009 a nd 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 petition on April 24, 2009 and published a Federal Register notice on Se ptember 30, 2009 establishing a three month administrative stay of the rule (74 FR 50115).

Since the IDEQ’s program treat s fugitive emissions in the same manner as “required by federal law,” these changes to the treatment of fugitive emissions in the federal program resulted in changes to the treatment of fug itive emissions in the IDEQ program. In fact, since the April 11, 2006 effective date of ID EQ’s regulated air pollutant rules, the implementation of IDEQ’s NSR program was directly modified by the changes to the federal rules discussed above. This emphasizes a need for IDEQ to closely track changes to federal rules and provide timely guidance to its permit writers and permit holders so

4 See August 13, 2002, proposed rulemaking (67 FR 52666) regarding EPA not approving Section 440, Requirements for Alternative Emission Limits (Bubble s) and Section 441, Demonstration of Ambient Equivalence.22 of 27 they are aware of how changes to the fede ral rules have immediate consequences on implementation of IDEQ’s permit program.

It’s important to note that in its final rulemaking on the reconsideration of fugitive emissions (73 FR 77882), EPA noted that a stat e has considerable latitude to customize its minor NSR program regarding the treatment of fugitive emissions. Furthermore, in the final rule, EPA required that state au thorities explicitly indicate how fugitive
emissions are to be accounted for in all as pects of the state’s minor NSR program. On September 25, 2009 IDEQ submitted a supplement to its May 5, 2006 SIP submittal explicitly stating that fugitive emissions in IDEQ’s minor source program are treated the same way they are in its major source progr am (i.e., any and all sources required to include fugitive emissions under major source ap plicability also need to include fugitive emissions in minor source applicability). This means that the treatment of fugitive emissions at minor sources also changes when any changes are made to the treatment of fugitive emissions in the federal major source NSR rules.

It should also be noted that IDEQ receive d adverse comments regarding the process followed for this SIP. Specifically, in a le tter dated September 7, 2005, Advocates for the West commented that the passage of House Bill 230 and Senate Bill 1228, which revised Section 39-115 of the Idaho Code, did not comply with the Clean Air Act notice requirements for SIP revisi ons (40 CFR 51.102). In response to this comment, on December 5, 2005, IDEQ held a separate public hearing on the changes to Idaho Code 39-115 that were part of the SIP revision containing the re gulatory changes to IDAPA 58.01.01. IDEQ submitted evidence that this publ ic hearing was held on September 25,
2009.

The editorial revisions to IDAPA 58.01.01.006, 007, 008, 133, 134, 135, 155, 213, 220, 460, 511, 512, 513, 560, 561, 575, 581, and 679 should also be approved.

EPA is taking no action on IDAPA58.01.01.440 and 441 related to the trading of emissions. The rationale is pr ovided in detail in our prev ious action on Idaho’s SIP (67 FR 52666). Similarly, IDAPA 58.01.01.006.55.b, pertaining to the “state only” toxics air pollutant program, should not be incorporated into the SIP.

(k) Procedure for transfer of Permits to Construct (PTC) and Tier II permits (58- 0101-0506)

Background In its May 5, 2006 SIP revision, IDEQ submitted revisions to 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.

Summary of IDEQ SIP Submittal On May 5, 2006 IDEQ submitted revisions to IDAPA 58.01.01.006, 007, 209 and 404. The revisions were subject to a public hearing on September 7, 2005, adopted by the23 of 27 Board of Environmental Quality on Oct ober 12, 2005, and became effective on April 11,

2006.

IDAPA 58.01.01.006, General Definitions , was revised, changi ng paragraph (56), definition of Modification, to refer to an “emi ssions increase” as defined in section 007.

IDAPA 58.01.01.007, Definitions for purposes of Section 200 through 228 and 400 through 461 , was revised to include new defin itions for “baseline actual emissions,” “begin actual construction,” “emissions increa se,” and “projected actual emissions,” as
well as editorial revisions to other definition to maintain consistency with the new
definitions.

IDAPA 58.01.01.209, Procedure for Issuing Permits [Permits to Construct], was revised to add a new section IDAPA 58.01.01.209.06, Transfer of Permits to Construct. This new section includes the requirements for tran sferring a PTC to a new owner or operator
of the source.

IDAPA 58.01.01.404 Procedures for Issuing Permits [Tier II Operating Permits], was revised to add a new section IDAPA 58.01.01.404.05, Tr ansfer of Tier II Permits. This new section includes the requirements for transf erring a Tier II permit to a new owner or operator of the source.

Analysis
The definition revisions in IDAPA58 .01.01.006 and 007 are consistent and, in many instances, identical to the definitions in 40 CFR Part 52.21( b) (definitions for federal PSD program) and are recommended for approval. Similarly, the new procedures for the transfer of permits in IDAPA 58.01.01.209.6 and 58.01.01.404.5 clarify existing practices and should be approved into the SIP.

(l) Facility Emissi ons Cap (58-0101-0508)

At this time we are taking no action on this portion of IDEQ’s May 5, 2006 SIP submittal. We will take action on the Facility Emissions Cap SIP in a separate rulemaking.

(m) Mercury (58-0101-0603)

Background/Summary of IDEQ SIP Submittal On April 16, 2007, IDEQ submitted a new section IDAPA 58.01.01.199 requiring that no owner or operator shall constr uct or operate an electric gene rating unit, as defined in 40 CFR 60.24, with a potential to em it mercury emissions. The ru le was subject to a public hearing on November 3, 2006, adopted by th e Board of Environmental Quality on November 16, 2006, and became effective on March 30, 2007.

Analysis24 of 27 While this rule is an important part of IDEQ’s air program, IDAPA 58.01.01.199 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 and, ther efore, EPA is not taking any action on this provision. (n) Sulfur Content of Fuels (58-0101-0703)

Background In its June 8, 2009 SIP revision, IDEQ submitted revisions to rules for sulfur content of
fuels. The revisions are for clarification purposes and are not substantive in nature.

Summary of IDEQ SIP Submittal On June 8, 2009 IDEQ submitted revisions to IDAPA 58.01.01.725 thru 729. The revisions were subject to a public hear ing on June 10, 2008, adopted 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
for the Sulfur Content of Fuels. Secti on 726 was revised to become paragraph 725(a) while retaining all of the relevant definitions specific to section 725 thru 729. Sections 727, 728 and 729 were revised to become paragr aphs 725(b), (c) and (d) while retaining all of the relevant provisions for residential fuel, distillate fuel and coal, respectively.

Analysis
The revisions to these sections are minor editori al changes. All of the existing definitions and regulatory requirements were retained a nd reorganized into a single section using paragraphs to beak out the various requireme nts. The revisions should be approved into
the SIP.

V. Proposed Action Consistent with the discussion and analysis in Section IV, EPA proposes to approve most of the submitted SIP provisions and take no action on certain ot her provisions, as
discussed below. This action will result in proposed changes to the Idaho 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 where IDEQ submitted multiple revisions to a single section of I DAPA 58.01.01, the most recen t version of that section (based on State Effectiv e Date) is proposed to be inco rporated into the SIP since it supersedes all previous revisions.

Table 2: Idaho Regulations for Proposed Approval

State
Citation Title/Subject State
Effective

Date Explanation25 of 27 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) (40 CFR part 60, 61, 63, 64, 72, 73, 82; 42 USC 7401 to 7671g) and (p) (coal fired
electric steam generating units). 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.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 Reduction 4/11/200626 of 27 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
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 effective
date

725 Rules for Sulfur Content of Fuels 5/8/2009

(b) Rules to Remove from the SIP: 58.01.01.470, Reserved (Formerly Permit Applic ation Fees for Tier II Permits)

(c) 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 Requi rements 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

(d) 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. 5 Therefore, EPA proposes that

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 with in the original or subsequently acquired territory thereof, and whether within or without the limits of a St ate, 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 rese rvations 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 Reserva tion, and the Nez Perce Reservation as described in the 1863 Nez Perce Treaty.27 of 27 this SIP approval not extend to “Indian Country” in Idaho. See CAA sections 110(a)(2)(A) (SIP shall include enforceable em ission 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 whic h 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).