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[Federal Register Volume 79, Number 7 (Friday, January 10, 2014)]
[Proposed Rules]
[Pages 1795-1799]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-00274]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2013-0418, FRL-9905-30-Region 10]

Approval and Promulgation of Implementation Plans; Idaho

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
partially approve the May 9, 2013, State Implementation Plan (SIP) 
submittal from Idaho to revise the SIP to update the incorporation by 
reference of Federal air quality regulations into the SIP and make 
minor edits and clarifications. The EPA is proposing to grant limited 
approval, as SIP strengthening, to a portion of the submittal that 
incorporates by reference updates to the Federal nonattainment new 
source review (nonattainment NSR) requirements that have been recently 
remanded to the EPA by a court. In addition, the EPA is proposing to 
partially disapprove Idaho's incorporation by reference of two 
provisions of the Federal prevention of significant deterioration (PSD) 
permitting rules that have been recently vacated in a separate decision 
by a court. Finally, we are proposing to take no action on Idaho's 
incorporation by reference of another provision of the Federal PSD 
permitting rules that has been the subject of a court action. Upon 
final action, the Idaho SIP would incorporate by reference certain 
Federal regulations as of July 1, 2012.

DATES: Comments must be received on or before February 10, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2013-0418, by any of the following methods:
    www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: R10-Public_Comments@epa.gov.
     Mail: Kristin Hall, EPA Region 10, Office of Air, Waste 
and Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle WA, 98101.
     Hand Delivery: EPA Region 10 Mailroom, 9th floor, 1200 
Sixth Avenue, Suite 900, Seattle WA, 98101. Attention: Kristin Hall, 
Office of Air, Waste and Toxics, AWT--107. Such deliveries are only 
accepted during normal hours of operation, and special arrangements 
should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-
2013-0418. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through 
www.regulations.gov or email. The www.regulations.gov Web site is an 
``anonymous access'' system, which means the EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to the EPA without 
going through www.regulations.gov your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, the EPA recommends that you include your 
name and other contact information in the body of your comment and with 
any disk or CD-ROM you submit. If the EPA cannot read your comment due 
to technical difficulties and cannot contact you for clarification, the 
EPA may not be able to consider your comment. Electronic files should 
avoid the use of special characters, any form of encryption, and be 
free of any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
the disclosure of which is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy. Publicly available 
docket materials are available either electronically in 
www.regulations.gov or in hard copy during normal business hours at the 
Office of Air, Waste and Toxics, EPA Region 10, 1200 Sixth Avenue, 
Seattle WA, 98101.

FOR FURTHER INFORMATION CONTACT: Kristin Hall at: (206) 553-6357, 
hall.kristin@epa.gov, or the above EPA, Region 10 address.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'', 
``us'' or ``our'' is used, it is intended to refer to the EPA. 
Information is organized as follows:

Table of Contents

I. Background
II. Analysis of State Submittal
    A. Summary of Submittal
    1. PM2.5 PSD IBR Update
    2. 2011 Federal Rule IBR Update
    3. Housekeeping Revisions
    4. 2012 Federal Rule IBR Update
    B. Effect of Court Decisions Vacating and Remanding Certain 
Federal Rules
    1. PM2.5 Nonattainment NSR Provisions
    2. PM2.5 PSD Provisions
    3. PSD Deferral of Certain Emissions From Biogenic Sources
III. Proposed Action
IV. Statutory and Executive Order Reviews

I. Background

    Section 110 of the Clean Air Act (CAA) specifies the general 
requirements for states to submit SIPs to attain and maintain the 
National Ambient Air Quality Standards (NAAQS) and the EPA's actions 
regarding approval of those SIPs. On May 9, 2013, the State of Idaho 
submitted a SIP revision to the EPA to account for regulatory changes 
adopted by Idaho on several different dates. Idaho incorporates by 
reference (IBR) various portions of Federal regulations codified in the 
Code of Federal Regulations (CFR) into the Rules for the

[[Page 1796]]

Control of Air Pollution in Idaho (IDAPA 58.01.01). Idaho then submits 
parts of IDAPA 58.01.01 to the EPA for approval into the Federally-
approved Idaho SIP (generally those provisions that relate to the 
criteria pollutants regulated under section 110 of the CAA for which 
the EPA has promulgated NAAQS or other specific requirements of section 
110). To ensure that its rules remain consistent with the EPA 
requirements, Idaho generally updates the IBR citations in IDAPA 
58.01.01 on an annual basis and submits a SIP revision to reflect any 
changes made to the Federal regulations during that year. Idaho's 
current SIP includes the approved incorporation by reference of 
specific Federal regulations, revised as of July 1, 2010, at IDAPA 
58.01.01.107 ``Incorporation by Reference.''

II. Analysis of State Submittal

A. Summary of Submittal

    On May 9, 2013, Idaho submitted several state dockets (rulemakings) 
for approval by the EPA. We note that the dockets also include 
revisions to Idaho's regulations relating to its title V operating 
permits program, hazardous air pollutants (referred to as ``toxic air 
pollutants'' in Idaho regulations), and other air quality-related 
requirements that do not implement section 110 of the CAA. Idaho 
submitted the revisions to these regulations for information purposes 
only, in order to provide a complete record of the rule revisions in 
each of the identified dockets. In the cover letter to the May 9, 2013, 
submittal Idaho specifically stated that the identified provisions were 
not being submitted to update Idaho's SIP. Below, we describe the rule 
changes submitted to the EPA for approval and provide our analysis of 
the revisions.
1. PM2.5 PSD IBR Update
    Docket 58-0101-1101 ``PM2.5 PSD IBR'' revises IDAPA 
58.01.01.107.03 ``Documents Incorporated by Reference'' to add the EPA 
final rule for Prevention of Significant Deterioration for Particulate 
Matter Less than 2.5 Micrometers (PM2.5)--Increments, 
Significant Impact Levels and Significant Monitoring Concentration 
(2010 PSD PM2.5 Implementation Rule) (October 20, 2010, 75 
FR 64864) codified at 40 CFR parts 51 and 52. Idaho incorporated these 
Federal requirements by reference separately from its annual IBR update 
because the EPA's final rule became effective after the State's annual 
IBR update in 2010, but before its annual IBR update in 2011. Although 
Idaho requested approval of this docket, it has been superseded by the 
annual IBR updates for 2011 and 2012, described below. Therefore, we 
are acting on only the most recently adopted and submitted version of 
Idaho's regulations (namely, the 2012 Federal Rule IBR Update). Further 
action on this docket is not necessary because this version of the 
regulations is no longer in effect.
2. 2011 Federal Rule IBR Update
    Docket 58-0101-1103 ``2011 Federal Rule IBR'' revises IDAPA 
58.01.01.107.03 ``Documents Incorporated by Reference'' to update the 
citation dates for specific provisions incorporated by reference into 
the Idaho SIP as of July 1, 2011. Although Idaho requested approval of 
this docket, it has been superseded by the annual IBR update for 2012, 
described below. Therefore, we are acting on only the most recently 
adopted and submitted version of Idaho's regulations (namely, the 2012 
Federal Rule IBR Update). Further action on this docket is not 
necessary because this version of the regulations is no longer in 
effect.
3. Housekeeping Revisions
    Docket 58-0101-1201 ``Housekeeping Revisions'' revises IDAPA 
58.01.01.006 ``General Definitions'' to clarify the definition of 
``Modification'' with respect to the use of an alternative fuel or raw 
material, if the stationary source is specifically designed to 
accommodate such fuel or raw material before January 6, 1975 and use of 
such fuel or raw material is not specifically prohibited in a permit. 
The EPA is proposing to approve this revision because it has been 
clarified by adding the specific date of January 6, 1975, and aligns 
with the Federal definition of ``major modification'' at 40 CFR 
51.166(b)(2)(i).
    Docket 58-0101-1201 also revises the definition of ``Significant'' 
at IDAPA 58.01.01.006 ``General Definitions'' to include 
PM2.5. Specifically, the revision defines a net emissions 
increase or the potential of a source to emit PM2.5 as 
``significant'' if the rate of emissions would equal or exceed 10 tons 
per year of direct PM2.5 emissions; or, with respect to 
specific precursors to PM2.5, 40 tons per year of sulfur 
dioxide emissions, or 40 tons per year of nitrogen oxides emissions. 
The EPA is proposing to approve this revised definition because it is 
the same as the Federal definition of significant at 40 CFR 
51.166(b)(23)(i).
    Docket 58-0101-1201 also revises the definition of ``Significant 
Contribution'' in IDAPA 58.01.01.006 ``General Definitions'' to include 
an increase in ambient concentrations of PM2.5 which would 
exceed 0.3 micrograms per cubic meter, annual average, and 1.2 
micrograms per cubic meter, twenty-four hour average. The EPA is 
proposing to approve this revision because it adopts the Federal 
``significant impact levels'' for PM2.5 as set forth in 40 
CFR 51.165(b)(2) and, as a definition, has a legal affect only as 
otherwise provided in regulations. As discussed in Section II.B.2 
below, certain Federal regulations related to significant impact levels 
were recently vacated by a court. However, 40 CFR 51.165(b)(2) was not 
vacated and remains in effect. Please see Section II.B.2 for a detailed 
discussion.
    It is important to note that since we most recently approved 
revisions to IDAPA 58.01.01.006 ``General Definitions,'' new 
definitions have been added at paragraphs (49), (50), (51), (66), (67), 
(114), and (116). As a result, the paragraphs in this section have been 
renumbered. We are not at this time acting on these new definitions 
because they were not part of the submittal, but we are proposing to 
approve the renumbering of the section to reflect the current paragraph 
numbers for ``Modification'' (68), ``Significant'' (106), and 
``Significant Contribution'' (107), and for all previously approved 
definitions in this section.
    The docket also makes minor changes to IDAPA 58.01.01.220 ``General 
Exemption Criteria for Permit to Construct Exemptions'' and IDAPA 
58.01.01.222 ``Category II Exemptions'' to clarify the applicability of 
these provisions. The revision to IDAPA 58.01.01.220 is approvable 
because it makes clear that an exemption under IDAPA 58.01.01.220 may 
be used by Category I sources if they meet the criteria in both IDAPA 
58.01.01.221 and 223. Similarly, an exemption under IDAPA 58.01.01.220 
may be used by Category II sources if they meet the criteria in both 
IDAPA 58.01.01.222 and 223. The revision to IDAPA 58.01.01.222 
``Category II Exemptions'' is approvable because it clarifies the 
additional criteria that a pilot plant in subparagraph (01)(e) must 
meet in order to satisfy the exemption criteria. Therefore, we are 
proposing to approve the submitted revisions to IDAPA 58.01.01.220 and 
IDAPA 58.01.01.222.
    Finally, this docket revises IDAPA 58.01.01.792 ``Emissions 
Standards for Nonmetallic Mineral Processing Plants Subject to 40 CFR 
60 Subpart OOO'' and IDAPA 58.01.01.794 ``Permit Requirements'' as they 
relate to nonmetallic mineral processing plant. Idaho submitted a 
previous version of IDAPA 58.01.01.792 and 58.01.01.794 to the EPA as a 
SIP revision, but the EPA has not yet taken action on that SIP 
revision. See 75 FR 72719 (November

[[Page 1797]]

26, 2010). The EPA intends to take action on both submitted revisions 
to IDAPA 58.01.01.792 and 58.01.01.794 in a separate rulemaking.
4. 2012 Federal Rule IBR Update
    Docket 58-0101-1203 ``2012 Federal Rule IBR Update'' revises IDAPA 
58.01.01.107 ``Incorporations by Reference'' in several ways. First, 
the revision updates to July 1, 2012 the citation dates of specific 
provisions incorporated by reference in IDAPA 58.01.01.107.03 
``Documents Incorporated by Reference.'' Second, the revision repeals 
certain provisions that are no longer necessary to incorporate by 
reference. Finally, the revision adds the incorporation by reference of 
40 CFR part 70 (State Operating Programs) and renumbers the 
subparagraphs in the rule.
    Subparagraph (a) of IDAPA 58.01.01.107.03 incorporates by reference 
the Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans, 40 CFR part 51, with the exception of certain 
visibility-related provisions, revised as of July 1, 2012. Idaho's 
update to the incorporation by reference of 40 CFR part 51 includes 
nonattainment NSR requirements at 40 CFR 51.165. For the reasons 
discussed in Section II.B.1 below, the EPA is proposing to grant 
limited approval, as SIP strengthening, to the portion of Idaho's 
submittal that incorporates by reference updates to the Federal 
nonattainment NSR requirements at 40 CFR 51.165.
    Subparagraphs (b) through (e) and (o) as renumbered, incorporate by 
reference the following provisions revised as of July 1, 2012: (b) 
National Primary and Secondary Ambient Air Quality Standards, 40 CFR 
part 50; (c) Approval and Promulgation of Implementation Plans, 40 CFR 
part 52, including the Federal PSD permitting rules at 40 CFR 52.21; 
(d) Ambient Air Monitoring Reference and Equivalent Methods, 40 CFR 
part 53; (e) Ambient Air Quality Surveillance, 40 CFR part 58; and (o) 
Determining Conformity of Federal Actions to State or Federal 
Implementation Plans, 40 CFR part 93, Subpart A, Sections 93.100 
through 93.129, although certain subsections are specifically excluded 
from the State's incorporation by reference. These provisions relate to 
the criteria pollutants regulated under section 110 of title I of the 
CAA or other specific requirements of section 110 and, with the 
exceptions discussed in Section II.B.2 below, make the Idaho SIP 
consistent with Federal law. The EPA is proposing to approve the 
revisions to IDAPA 58.01.01.107.03 (b) through (e) and (o) as 
renumbered, with the following exceptions. We are proposing to 
disapprove Idaho's incorporation by reference of two provisions of the 
Federal PSD permitting rules at 40 CFR 52.21 revised by the 2010 PSD 
PM2.5 Implementation Rule (October 20, 2010, 75 FR 64864). 
Provisions of this rule were recently vacated by a court, as discussed 
in Section II.B.2 below. We are also proposing to take no action on 
Idaho's incorporation by reference of a provision of 40 CFR 52.21 
revised by the Biogenic Carbon Dioxide (CO2) Deferral Rule 
that is currently the subject of a judicial challenge, as described in 
Section II.B.3 below (July 20, 2011, 76 FR 43490).
    This docket also repealed subparagraphs (o), (p), and (q) (prior to 
renumbering) of IDAPA 58.01.01.107.03. Subparagraph (o) incorporated by 
reference the final rule for Primary National Ambient Air Quality 
Standards for Sulfur Dioxide, now codified at 40 CFR part 50, 40 CFR 
part 53, and 40 CFR part 58. Subparagraph (p) incorporated by reference 
the final rule for Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule, now codified at 40 CFR part 51, 40 CFR 
part 52, and 40 CFR part 70. Subparagraph (q) incorporated by reference 
the 2010 PSD PM2.5 Implementation Rule, now codified at 40 
CFR part 51 and 40 CFR part 52. Idaho's annual IBR update has since 
captured the CFR changes made by these three Federal rules, and Idaho 
has therefore repealed these subparagraphs. We are proposing to approve 
the repeal of IDAPA 58.01.01.107.03 subparagraphs (o), (p), and (q) 
(prior to renumbering).
    Subparagraphs (f) through (m) of IDAPA 58.01.01.107.03 as 
renumbered, incorporate by reference the following provisions as of 
July 1, 2012: (f) Standards of Performance for New Stationary Sources, 
40 CFR part 60; (g) National Emission Standards for Hazardous Air 
Pollutants, 40 CFR part 61; (h) National Emission Standards for 
Hazardous Air Pollutants for Source Categories, 40 CFR part 63; (i) 
Compliance Assurance Monitoring, 40 CFR part 64; (j) State Operating 
Permit Programs, 40 CFR part 70; (k) Permits, 40 CFR part 72; (l) 
Sulfur Dioxide Allowance System, 40 CFR part 73; and (m) Protection of 
Stratospheric Ozone, 40 CFR part 82. Consistent with past approvals of 
the Idaho SIP, we are proposing to not approve the portion of the May 
9, 2013, submittal that revises IDAPA 58.01.01.107.03(f) through (m) as 
renumbered, because these provisions implement other CAA requirements 
that are not requirements of a SIP under section 110 of the CAA.

B. Effect of Court Decisions Vacating and Remanding Certain Federal 
Rules

1. PM2.5 Nonattainment NSR Provisions
    On January 4, 2013, the U.S. Court of Appeals in the District of 
Columbia, in Natural Resources Defense Council (NRDC) v. EPA, 706 F.3d 
428 (DC Cir.), issued a decision that remanded the EPA's 2007 and 2008 
rules implementing the 1997 PM2.5 NAAQS. Relevant here, the 
EPA's 2008 implementation rule addressed by the Court decision, 
``Implementation of New Source Review (NSR) Program for Particulate 
Matter Less Than 2.5 Micrometers (PM2.5)'' (the 2008 NSR 
PM2.5 Rule),\1\ promulgated NSR requirements for 
implementation of PM2.5 in both nonattainment areas 
(nonattainment NSR) and attainment/unclassifiable areas (PSD). The 
Court concluded that the EPA had improperly based the implementation 
rule for the 1997 PM2.5 NAAQS solely upon the requirements 
of part D, subpart 1 of the CAA, and had failed to address the 
requirements of part D, subpart 4, which establishes additional 
provisions for particulate matter nonattainment areas. The Court 
ordered the EPA to ``repromulgate these rules pursuant to Subpart 4 
consistent with this opinion.'' Id. at 437. As a result of the Court's 
decision, the EPA withdrew its guidance for implementing the 2006 
PM2.5 NAAQS\2\ because the guidance was based largely on the 
remanded rule promulgated to implement the 1997 PM2.5 
NAAQS.\3\ The EPA is currently engaged in rulemaking to address the 
remand from the Court.
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    \1\ 73 FR 28321 (May 16, 2008).
    \2\ Memorandum from Stephen D. Page, Implementation Guidance for 
the 2006 24-Hour Fine Particulate (PM2.5) National 
Ambient Air Quality Standards (Mar. 2, 2012).
    \3\ Memorandum from Stephen D. Page, Withdrawal of 
Implementation Guidance for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (Jun. 6, 
2013).
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    In the interim, however, states and the EPA still need to proceed 
with implementation of the PM2.5 NAAQS in a timely and 
effective fashion in order to meet statutory obligations under the CAA 
and to assure the protection of public health intended by those NAAQS. 
In light of the Court's remand of the 2008 NSR PM2.5 Rule, 
the EPA is not prepared at this time to grant full approval to Idaho's 
incorporation by reference into the Idaho SIP of the Federal 
nonattainment NSR requirements at 40 CFR 51.165, but instead proposes 
to grant limited

[[Page 1798]]

approval, as SIP strengthening, of this aspect of Idaho's submittal.
    The EPA is in the process of evaluating the requirements of subpart 
4 as they pertain to nonattainment NSR. In particular, subpart 4 
includes section 189(e) of the CAA, which requires the control of major 
stationary sources of PM10 precursors (and hence under the 
Court decision, PM2.5 precursors) ``except where the 
Administrator determines that such sources do not contribute 
significantly to PM10 levels which exceed the standard in 
the area.'' The evaluation of which precursors need to be controlled to 
achieve the standard in a particular area is typically conducted in the 
context of the State's preparing and the EPA's reviewing of an area's 
attainment plan SIP. In this case, there is only one designated 
PM2.5 nonattainment area in Idaho, the portion of Franklin 
County which is part of the cross border Logan, Utah-Idaho 
nonattainment area for the 2006 24-hour PM2.5 NAAQS. Idaho 
submitted an attainment plan for this area in Idaho (referred to here 
as ``Franklin County'') on December 14, 2012. On December 26, 2013, the 
EPA proposed limited approval of the road sanding and woodstove control 
measures in this plan (78 FR 78315).
    In light of the Court's decision in NRDC v. EPA, and the need to 
evaluate Idaho's submittal for Franklin County in conjunction with the 
SIP submittal for the Utah portion of the Logan Utah-Idaho 
nonattainment area, the EPA is not proposing to make a determination 
regarding whether Idaho's December 2012 SIP submittal for Franklin 
County satisfies all of the statutory nonattainment planning 
requirements for the 2006 PM2.5 NAAQS. For similar reasons, 
and because the EPA is not evaluating in this action Idaho's analysis 
as to which precursors need to be controlled in the Idaho portion of 
the Logan Utah-Idaho nonattainment area, the EPA cannot approve as 
fully complying with the CAA a nonattainment NSR SIP that may address 
only a subset of the scientific precursors recognized by the EPA. On 
the other hand, while we have not yet determined if Idaho's submittal 
for Franklin County contains all of the elements necessary to satisfy 
the CAA requirements for PM2.5 nonattainment areas when 
evaluated under subpart 4, the revisions proposed in this action to 40 
CFR 51.165 (including without limitation the regulation of 
PM10 and PM2.5 condensable emissions) represent a 
strengthening of the currently approved Idaho SIP. Therefore, the EPA 
is proposing to grant limited approval of the nonattainment NSR 
provisions in Idaho's 2012 IBR Update.
    Because the EPA has not yet proposed revisions to the nonattainment 
NSR permitting requirements in response to the remand, the EPA is not 
evaluating at this time whether Idaho's submittal for Franklin County 
will require additional revisions to satisfy the subpart 4 
requirements. Once the EPA repromulgates the Federal PM2.5 
regulations with respect to nonattainment NSR permitting in response to 
the NRDC v. EPA remand, the EPA will consider whether a limited 
disapproval should also be finalized.\4\
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    \4\ As discussed above, Idaho's submittal also includes 
revisions to the Idaho SIP to update the incorporation by reference 
of the Federal PSD permitting rule at 40 CFR 52.21. Because the 
requirements of subpart 4 only pertain to nonattainment areas, the 
EPA does not consider the portions of the 2008 NSR PM2.5 
Rule that address requirements for PM2.5 attainment and 
unclassifiable areas (including PSD permitting rules) to be affected 
by the court's opinion in NRDC v. EPA.
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2. PM2.5 PSD Provisions
    As discussed above in Section II.A.4, IDAPA 58.01.01.107.03(c) 
incorporates by reference the Federal PSD permitting rules at 40 CFR 
52.21. The current Idaho SIP incorporates 40 CFR 52.21 by reference as 
of July 1, 2010. Docket Number 58-0101-1203 updates the incorporation 
by reference date of the PSD permitting rules to July 1, 2012, and thus 
includes revisions to 40 CFR 52.21(i) (relating to the significant 
monitoring concentration (SMC)) and 40 CFR 52.21(k) (relating to the 
significant impact level (SIL)) that added a SMC and SIL for 
PM2.5 as part of the 2010 PSD PM2.5 
Implementation Rule.
    On January 22, 2013, the U.S. Court of Appeals for the District of 
Columbia, in Sierra Club v. EPA, 703 F.3d 458 (D.C. Cir. 2013), issued, 
with respect to the SMC, a judgment that, inter alia, vacated the 
provisions adding the PM2.5 SMC to the Federal regulations 
at 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c). In its decision, the Court 
held that the EPA did not have the authority to use SMCs to exempt 
permit applicants from the statutory requirement in section 165(e)(2) 
of the CAA that ambient monitoring data for PM2.5 be 
included in all PSD permit applications. Thus, although the 
PM2.5 SMC was not a required element of a state's PSD 
program, where a state PSD program contains such a provision and allows 
issuance of new permits without requiring ambient PM2.5 
monitoring data, such application of the vacated SMC would be 
inconsistent with the Court's opinion and the requirements of section 
165(e)(2) of the CAA.
    At the EPA's request, the decision also vacated and remanded to the 
EPA for further consideration the portions of the 2010 PSD 
PM2.5 Implementation Rule that revised 40 CFR 51.166 and 40 
CFR 52.21 related to SILs for PM2.5. The EPA requested this 
vacatur and remand of two of the three provisions in the EPA 
regulations that contain SILs for PM2.5 because the wording 
of these two SIL provisions (40 CFR 51.166(k)(2) and 40 CFR 
52.21(k)(2)) is inconsistent with the explanation of when and how SILs 
should be used by permitting authorities that we provided in the 
preamble to the Federal Register publication when we promulgated these 
provisions. The third SIL provision (40 CFR 51.165(b)(2)) was not 
vacated and remains in effect. We also note that the Court's decision 
does not affect the PSD increments for PM2.5 promulgated as 
part of the 2010 PSD PM2.5 Implementation Rule. The EPA 
recently amended its regulations to remove the vacated PM2.5 
SILs and SMC provisions from the PSD regulations (December 9, 2013, 78 
FR 73698). The EPA will initiate a separate rulemaking in the future 
regarding the PM2.5 SILs that will address the Court's 
remand. In the meantime, the EPA is advising states to begin 
preparations to remove the vacated provisions from state PSD 
regulations.
    In response to the vacatur of the EPA regulations as they relate to 
the PM2.5 SMC and the PM2.5 SILs, Idaho submitted 
a letter to the EPA, dated October 18, 2013, clarifying that it will 
not apply either the PM2.5 SMC provisions at 40 CFR 
52.21(i)(5)(i)(c) or the PM2.5 SIL provisions at 40 CFR 
52.21(k)(2) in Idaho's implementation of the PSD program. In addition, 
the October 18, 2013 letter states that Idaho intends to remove the 
vacated provisions to ensure consistency with Federal law as soon as 
practicable. Therefore, we are proposing to partially disapprove the 
Idaho submittal with respect to the incorporation by reference at IDAPA 
58.01.01.107.03(c) of the vacated provisions of 40 CFR 52.21 (namely, 
40 CFR 52.21(i)(5)(i)(c) and 40 CFR 52.21(k)(2)).
3. PSD Deferral of Certain Emissions From Biogenic Sources
    In 2011, the EPA revised the definition of ``subject to 
regulation'' at 40 CFR 52.21(b)(49)(ii)(a) to defer for three years 
(until July 21, 2014) PSD permitting requirements to CO2 
emissions from bioenergy and other biogenic stationary sources 
(Deferral for CO2 Emissions from Bioenergy and Other 
Biogenic Sources under the Prevention of Significant Deterioration 
(PSD) and Title V Programs; Final Rule

[[Page 1799]]

(July 20, 2011, 76 FR 43490) (Biogenic CO2 Deferral Rule). 
Idaho's update to incorporate by reference the EPA's PSD permitting 
rules as of July 1, 2012, includes this revision to 40 CFR 
52.21(b)(49)(ii)(a). On July 12, 2013, the U.S. Court of Appeals for 
the District of Columbia, in Center for Biological Diversity v. EPA, 
No. 11-1101 (D.C. Cir. July 12, 2013), vacated the Biogenic 
CO2 Deferral Rule. At this time, the Court has not issued 
the mandate in this case and the vacatur is therefore not in effect. In 
light of this situation, we are proposing to take no action on Idaho's 
incorporation by reference of the revision to 40 CFR 
52.21(b)(49)(ii)(a) at this time.
    The EPA is proposing to approve all other aspects of Idaho's 
incorporation by reference of 40 CFR 52.21 as of July 1, 2012 in IDAPA 
58.01.01.107.03(c), other than those discussed in Sections II.B.2 and 
II.B.3 of this proposal.

III. Proposed Action

    The EPA is proposing to partially approve the May 9, 2013, 
submittal from Idaho to update the incorporation by reference of 
Federal air quality regulations into the SIP and make minor edits and 
clarifications. Specifically, we are proposing to approve the revisions 
to IDAPA 58.01.01.107.03 ``Incorporations by Reference,'' except as 
noted below; IDAPA 58.01.01.006 ``General Definitions;'' IDAPA 
58.01.01.220 ``General Exemption Criteria for Permit to Construct 
Exemptions;'' and IDAPA 58.01.01.222 ``Category II Exemption.'' The EPA 
is proposing to grant limited approval, as SIP strengthening, to a 
portion of the submittal that incorporates by reference updates to the 
Federal nonattainment NSR requirements at 40 CFR 51.165 that have been 
recently remanded to the EPA by a court.
    We are proposing to partially disapprove the revision to IDAPA 
58.01.01.107.03(c) as it relates to the incorporation by reference of 
specific vacated provisions at 40 CFR 52.21 (namely, 40 CFR 
52.21(i)(5)(i)(c) and 40 CFR 52.21(k)(2)). We are proposing to take no 
action on the revision to IDAPA 58.01.01.107.03(c) as it relates to the 
incorporation by reference of the vacated revision to 40 CFR 
52.21(b)(49)(ii)(a). Upon final action, the Idaho SIP would incorporate 
by reference specific Federal regulations as of July 1, 2012.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to the requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because this action does not involve technical standards; and
     does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and the EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Particulate matter, and Reporting and recordkeeping 
requirements.

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

    Dated: December 30, 2013.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.
[FR Doc. 2014-00274 Filed 1-9-14; 8:45 am]
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