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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 WA 
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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 Action 
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I. Purpose

This Technical Support Document (TSD) supports EPA’s action on a number of State 

Implementation (SIP) revisions the Idaho Department 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, documents 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 public hearing and state rule effective 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 07/01/02
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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 Pollutants (58-0101-0503) 

[58.01.01.006-008, 133-135, 155, 213, 

220, 440-442, 460, 511-513, 560-561, 

575, 581, and 679] 

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 since the last EPA approval of the Idaho Rules for 

the Control of Air Pollution in Idaho, IDAPA 58.01.01, many sections 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 in 
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terminology (e.g., “air pollutant” instead of “air 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 appropriate. 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 federal 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 current 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 revisions 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 revised 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 Incinerators as noted in paragraph (f) below. 

2002 Annual Incorporation By Reference (IDAPA Docket 58-0101-0202) 

On May 22, 2003, IDEQ submitted revisions 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 revised 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 effective on May 3, 2003. It should be noted 

that these revisions were included with a rulemaking for Permit Clarifications as noted in 

paragraph (h) below. 

2003 Annual Incorporation By Reference (IDAPA Docket 58-0101-0301) 
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On April 2, 2004, IDEQ submitted revisions 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 revised 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 those revised as of July 1, 2004. The revisions 

were subject to a public hearing on September 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 those 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 those 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 those revised as of July 1, 2007. The revisions 

also change the way federal regulation are IBR into IDAPA 58.01.01.200, 204 and 205. 

Rather than listing the IBR of federal regulations in these three sections, each section 

now includes language stating that the applicable 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 that are incorporated by 

reference to include those revised as of July 1, 2008. The revisions were subject to a 
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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 regulation 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 IBR revised IDAPA 58.01.01.200, 204 and 205 to 

change the way federal regulation are IBR into 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 revisions to IDAPA 58.01.01.008, 

Definitions for Purposes of Section 300 through 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 action on certain subsections of IDAPA 

58.01.01.107.03 since they were not related to the criteria pollutants 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 numbering/lettering of those subsections has 

changed pursuant to the revisions discussed 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) for 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. The following documents are incorporated by 

reference into these rules: (5-1-94) 

a. Requirements for Preparation, 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 Quality 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) 
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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, 

2008. (5-8-09) 

h. National Emission Standards for Hazardous Air Pollutants, 40 CFR Part 61, revised as of July 

1, 2008. (5-8-09) 

i. National Emission Standards for Hazardous Air Pollutants for Source Categories, 40 CFR Part 

63, revised as of July 1, 2008. (5-8-09) 

j. Compliance Assurance Monitoring, 40 CFR Part 64, revised as of July 1, 2008. (5-8-09) 

k. Permits, 40 CFR Part 72, revised as of July 1, 2008. (5-8-09) 

l. Sulfur Dioxide Allowance System, 40 CFR Part 73, revised as of July 1, 2008. (5-8-09) 

m. Protection of Stratospheric Ozone, 40 CFR Part 82, revised as of July 1, 2008. (5-8-09) 

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 Federal 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. 

51,266 the final rule for Standards of Performance for Electric Utility Steam Generating Units, 

Industrial-Commercial-Institutional Steam Generating Units, and Small Industrial-CommercialInstitutional Steam Generating Units, only as it applies to coal fired electric steam generating units 

as defined in 40 CFR 60.24, 71 Fed. Reg. 9865 (February 27, 2006); Revision of December 2000 

Clean Air Act Section 112(n) Finding Regarding 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 new and modified stationary sources of air 

pollutants regulated under the CAA, known as “major New Source Review” or “major 

NSR.” The major NSR programs of the CAA include a combination of air quality 

planning and air pollution control technology program requirements. States adopt major 

NSR programs as part of their SIP. 

Part C of title I of the CAA, 42 U.S.C. 7470-7492, is the “Prevention of Significant 

Deterioration” or “PSD” program, which applies 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 of 
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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 are not in attainment of the 

NAAQS (i.e., “nonattainment areas”). EPA regulations 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 the definition of “replacement unit,” and 

clarified an issue regarding plantwide applicability limitations (PALs). The December 31, 

2002 and the November 7, 2003, final actions, are collectively referred to as the “2002 

NSR Reform Rules.” 

The 2002 NSR Reform Rules made changes to five 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 NSR program; (4) provide a new applicability 

provision for emissions units that are designated clean units; and (5) exclude pollution 

control projects from the definition of “physical change or change in the method of 

operation.” 

After the 2002 NSR Reform Rules were finalized and effective (March 3, 2003), various 

petitioners challenged numerous aspects of the 2002 NSR Reform Rules, along with 

portions of EPA's 1980 NSR Rules (45 FR 5276, August 7, 1980). On June 24, 2005, the 

DC Circuit Court issued a decision on the challenges to the 2002 NSR Reform Rules. See 

New York v. United States, 413 F.3d 3 (DC Cir. 2005). In summary, the DC Circuit Court 

vacated portions of the 2002 NSR Reform Rules pertaining to clean units and pollution 

control projects, remanded a portion of the rules regarding recordkeeping (40 CFR 

52.21(r)(6) and 40 CFR 51.166(r)(6)), and either upheld or did not comment on the other 

provisions included as part of the 2002 NSR Reform Rules. On June 13, 2007 (72 FR 

32526), EPA took final action to revise the 2002 NSR Reform Rules to remove from 

federal law all provisions pertaining to clean units and the PCP exemption that were 

vacated by the D.C. Circuit Court. 

With regard to the remanded portions of the 2002 NSR Reform Rules related to 

recordkeeping, on December 21, 2007, EPA took final action to establish that a 

``reasonable possibility'' applies where 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. 

 
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The 2002 NSR Reform Rules require that State 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 NSR rules met the requirements of 40 CFR part 

51, subpart I, in effect at that time, and 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, IDAPA 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 October 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 incorporate 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 SIP revision were analyzed for meeting the 

specific requirements of major NSR reform measures 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 regulations, thus keeping the state rules 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 Definitions 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 Stationary Source as defined 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 Modifications consistent with the definitional changes in 

58.01.01.200. 

58.01.01.204 Permit Requirements for New Major Facilities 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 through 
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November 7, 2003,1 that are incorporated by reference. IDAPA 58.01.01.204.02 and 03 

include minor additional revisions for consistency 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, 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 165(d) regarding Clean Unit Provisions 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 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 (z)(1)-(3) and (5) regarding 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 PALs, which meets the provisions of 

51.165(f). 

58.01.01.205 Permit Requirements for New Major Facilities or Major Modifications in 

Attainment or Unclassifiable Areas, was revised to expressly state 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 stating that the reference in IDAPA 58.01.01.204 to 

40 CFR 51.165(a)(2)(ii)(A)-(J) in IDEQ’s original submittal was in error and had been administratively 

corrected to incorporate by reference 40 CFR 51.165(a)(2)(ii) through 51.165(a)(3). ] 
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includes a table of the sections of 40 CFR 52.21, as revised through November 7, 2003,3

incorporated by reference and replace previous state specific provisions in IDAPA 

58.01.01.205.01–04. IDAPA 58.01.01.205.02 specifies, where 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 from 40 CFR 52.21. Below are the federal rules 

incorporated by reference into IDAPA 58.01.01.205: 

 40 CFR 52.21(a)(2) Applicability Procedures 

 40 CFR 52.21(b) Definitions 

 40 CFR 52.21(i) Exemptions 

 40 CFR 52.21(j) Control Technology Review 

 40 CFR 52.21(k) Source Impact Analysis 

 40 CFR 52.21(r) Source Obligation 

 40 CFR 52.21(v) Innovative Control Technology 

 40 CFR 52.21(w) Permit Rescission 

 40 CFR 52.21(x) Clean Unit Test for Emissions Units that 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 BACT. 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(z)(1)-(3) and (6) PCP Exclusion Procedural Requirements. 

However, on July 24, 2006 IDEQ amended the July 13, 2005 SIP revision by 

requesting that EPA not act on the clean unit and 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 ultimately removed from IDAPA Ch. 58 

by subsequent annual IBR update SIP revisions (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 consistent 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 NSR programs in 40 CFR 51.165 and 166 and 

52.21. The revised rules address baseline actual emissions, actual-to-projected actual 

applicability tests, PALs, and other currently applicable provisions of EPA’s 2002 NSR 

Reform Rules. In fact, as described above, 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 state 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 analysis 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 contribute 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 sources must meet to be a non-major source exempt from 

permitting requirements. Other criteria include: 

(1) the source’s uncontrolled potential to emit must be less than 100 tpy (IDAPA 

58.010.0.220.01.a.i); 
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(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 (IDAPA 58.01.01.220.01.a.iii); 

(4) the source cannot be part of a new major facility or a major modification of an 

existing major facility (IDAPA 58.01.01.220.01.b); and 

(5) either the controlled potential emissions 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 criteria 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 review 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 determination that the emission levels and 

source categories are appropriately exempted 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 the 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 “director’s discretion” provisions in IDAPA 

58.01.01.222.03 and 222.01.f do not meet the requirements of section 110 of the CAA 

and, therefore, did not approve these provision into the SIP (see 68 FR 2217). 

In response to EPA’s actions discussed above 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 that the federal government provides 

States with the primary responsibility to establish 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, without being “broader in scope 

or more stringent than federal law or regulation,” consistent with Idaho Code 39-107D. 

IDEQ has submitted this change as a SIP revision. IDEQ also removed the director 

discretion provisions consistent with the discussion above and has submitted these 

revisions to its rules as a SIP revision. 

Summary of IDEQ SIP Submittals 
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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 the 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 detailed below were made to address 

certain criteria for permit to construct exemptions that EPA highlighted in its 2003 

approval of the Idaho SIP discussed above. 

58.01.01.220 – General Exemption Criteria for Permit to Construct Exemptions, was 

revised to strike-out the modeling provisions 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 “Director’s discretion,” 58.01.01.222 is revised at 

paragraph 1.d, to change the criteria for internal combustion 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 biogas as an allowable fuel for fuel burning 

equipment with capacity less than 50 million BTU per hour used for indirect heating and 

heating or reheating furnaces, providing that the hydrogen sulfide concentration is below 

200 ppmv. Three new paragraphs were also added to other exempt sources: 

 paragraph 2.i adding multiple chamber crematories providing they use natural gas 

exclusively, have a maximum average charge capacity of 200 pounds of remains 

per hour and minimum secondary combustion chamber temperature of 1500 

degrees Fahrenheit; 

 paragraph 2.j adding petroleum environmental remediation source by vapor 

extraction providing the operation life is less than five years and the short term 

adjustment factor for air toxics (IDAPA 58.01.01.210.15) is not used if source is 

within 500 feet of a sensitive receptor; and 

 paragraph 2.k adding dry cleaning facilities 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 reviewed in the context of EPA’s previous 

statements (67 FR 52666, 68 FR 2217) that the modeling provisions in IDAPA 

58.01.01.220.01.a.iii are not a necessary part of the 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 approval into a SIP. 

Idaho’s July 13, 2005 revisions address, in part, 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 to 
16 of 27

ensure compliance with applicable rules, including the national ambient air quality 

standards. 

Idaho’s May 5, 2006 revisions address the remaining issues regarding “director’s 

discretion” and expand the Permit to Construct Exemptions for certain sources. In an email from Michael Simon, IDEQ, to Dan Brown, EPA Region 10, dated December 2, 

2008, IDEQ further explained the rational for 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. Therefore, 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. Therefore, they were good candidates to list 

as exempt sources providing they met the 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 satisfy 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 exemptions. Section 220.01.a requires that the 

maximum capacity of a source to emit an air pollutant under its physical and operational 

design without consideration of limitations on emission such as air pollution control 

equipment, restrictions on hours of operation and restrictions on the type and amount of 

material combusted, stored or processed would not: i. Equal or exceed 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 been made to certain sections 
17 of 27

of IDAPA 58.01.01 that are already part of the SIP and, therefore, 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 addition, 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 and 800-802 deal with the collection 

of various fees associated with IDEQ’s Permit to Construct and Tier I and II Operating 

Permits programs and are not being incorporated into the SIP per IDEQ’s request. 

IDAPA 58.01.01.470 was revised to become a “reserved” paragraph as the provisions for 

Permit Application Fees for Tier II Permits previously in this paragraph were 

incorporated into IDAPA 58.01.01.407 Tier II Operating Permit Processing Fee. 

Analysis 

The editorial changes to IDAPA 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 paragraph 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 Construct and Tier II 

permits are related to criteria pollutant programs 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 with 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 any 
18 of 27

environmental remediation source that functions to remediate or recover any release, 

spill, leak, discharge or disposal of any petroleum 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 taking 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/Medical/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 provisions of Section 39-128. The proposed 

rule also included IDEQ’s annual IBR submittal 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 October 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 Plants (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 Clarification (58-0101-0202) 

Background 

IDEQ’s May 22, 2003 SIP revision included revisions to numerous rules as noted in 

Table 1. In the Permit Clarification rulemaking 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 were subject to a public hearing on 

October 8, 2002, adopted by the Board of Environmental Quality on November 13, 2002, 

and became effective on May 3, 2003. 

The revisions to IDAPA 58.01.01.209.01.c, 700.01 and 710-724 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 reflect existing language in the SIP 

and Section 710 was struck entirely 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 process weight limitations were less stringent 

than those currently in the SIP. Essentially, these rule revisions 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 cross-referencing section numbers. 

The revisions to IDAPA 58.01.01.313 and 317 revise the Tier I operating permit rules 

which are not part of the SIP. Similarly, 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 permits. 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 from 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 result 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 pollutants 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 already approved into the SIP and, therefore, no 

SIP action is necessarily needed on that portion of the SIP. However, to maintain 
20 of 27

consistency between the federally approved rules and state rules, specifically regarding 

the state rule effective dates, IDAPA 58.01.01.700 with a state effective date of May 3, 

2003 should be approved into the SIP. A more 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 Permit 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 October 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 revised rules, particularly those related to its 

operating permit program, would not be incorporated into the SIP. The revisions to deal 

with the implementation of IDEQ’s Tier I operating permit program under Title V of the 

Clean Air Act and are not being incorporated 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 under 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 submitted 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 requirements 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 kick-off for a negotiated rulemaking. The 

text of the proposed and final rule revisions 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 regarding 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. 
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IDAPA 58.01.01.006 was revised to modify the definition of “regulated air pollutant” to 

be consistent with federal rules. In addition, IDEQ revised the definition of 

“modification” by adding language stating “Fugitive emissions shall not be considered in 

determining whether a permit is required for a modification unless required by federal 

law,” and breaking out the definition 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 were 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 “modification” and “regulated air pollutant.” 

Similar editorial changes were made to sections IDAPA 58.01.01.008, 440 and 441, 

although these sections are not in the SIP4

. 

Analysis 

The revisions to the definitions have been reviewed and determined to be approvable. 

The revisions make the treatment of fugitive emissions in determining major source and 

major modification thresholds consistent 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 reconsideration by Newmont Mining Corporation and 

made the treatment of fugitive emissions for determining major modifications consistent 

with the treatment of fugitive emissions for determining major source thresholds. In 

brief, this rulemaking required that fugitive emissions be included in determining whether 

a physical change or change in operation results in a major modification only for sources 

in source categories designated 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 and became effective in the federal PSD 

program on February 17, 2009. However, on February 17, 2009, EPA received a petition 

from the Natural Resources Defense Council to reconsider and stay the December 19, 

2008, final fugitive emissions final rule. EPA granted the petition on April 24, 2009 and 

published a Federal Register notice on September 30, 2009 establishing a three month 

administrative stay of the rule (74 FR 50115). 

Since the IDEQ’s program treats 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 fugitive emissions in the IDEQ program. In fact, 

since the April 11, 2006 effective date of IDEQ’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 (Bubbles) and Section 441, Demonstration of Ambient 

Equivalence.
22 of 27

they are aware of how changes to the federal 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 state has considerable latitude to customize 

its minor NSR program regarding the treatment of fugitive emissions. Furthermore, in 

the final rule, EPA required that state authorities explicitly indicate how fugitive 

emissions are to be accounted for in all aspects 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 program (i.e., any and all sources required to 

include fugitive emissions under major source applicability 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 received adverse comments regarding the process 

followed for this SIP. Specifically, in a letter 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 revisions (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 regulatory changes to IDAPA 

58.01.01. IDEQ submitted evidence that this public 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 provided in detail in our previous 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 the 
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Board of Environmental Quality on October 12, 2005, and became effective on April 11, 

2006. 

IDAPA 58.01.01.006, General Definitions, was revised, changing paragraph (56), 

definition of Modification, to refer to an “emissions 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 definitions for “baseline actual emissions,” 

“begin actual construction,” “emissions increase,” 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 transferring 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, Transfer of Tier II Permits. This 

new section includes the requirements for transferring 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 Emissions 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 construct or operate an electric generating unit, as defined in 40 

CFR 60.24, with a potential to emit mercury emissions. The rule was subject to a public 

hearing on November 3, 2006, adopted by the Board of Environmental Quality on 

November 16, 2006, and became effective on March 30, 2007. 

 

Analysis 
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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, therefore, 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 hearing 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. Section 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 paragraphs 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 editorial changes. All of the existing definitions 

and regulatory requirements were retained and reorganized into a single section using 

paragraphs to beak out the various requirements. 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 other 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 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 proposed to be incorporated into the SIP since 

it supersedes all previous revisions. 

Table 2: Idaho Regulations for Proposed Approval 

State 

Citation 

Title/Subject State 

Effective 

Date 

Explanation 
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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 4/11/2006 
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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 Application 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 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 

(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 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. 
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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).