# Received

STATE OF IDAHO 

## SEP 282009 DEPARTMENT OF ENVIRONMENTAL QUALITY 

## office OfAir,.\I\Jaste And 

## Toxles



# -- ,----.-..**~,-~-~-~'~.'" ~"'''.~.,--~--~** **,~,** 1410 North Hilton. Boise, Idaho 83706· (208) 373-0502 C.L. "Butch" Otter, Governor Toni Hardesty, Director 

### September 25,2009

Mahbubul Islam, Unit Manager Office ofAir, Waste and Toxics USEPA

- Region 10 

### 1200 Sixth Avenue

- AWT-I07 Seattle, W A 98101

Dear Mr. Islam,

I am writing to provide you with the supplemental information you requested in order to complete your review ofldaho's May 5, 2006 "Regulated Air Pollutants" SIP Submittal (IDEQ Docket number 58-0101-0503).

The following three paragraphs are intended to meet the federal requirement (FR 77882) that Idaho specify howfugitive emissions will be treated in its minorNSRprogram:

The intent of Idaho's Rules is to treat fugitive emissions in applicability determinations in
a manner consistent with current federal regulations. To that end, Idaho's rules require fugitive emissions from certain sources (40 CFR subparts 51.165,51.166, Appendix S to Part 51, and52.21) to be includedwhen makingmajor source or modificationpermit to construct PSD andNSR applicability determinations.

Idaho's rules require any new source or modification, major or minor, to obtain apermit to construct (201) unless it

### qualifies for an exemption in accordance with Sections 220­ 223. To maintainprogram consistency, Idaho requires fugitive emissions to be included in determining whether a new source or modification qualifies for apermit to construct exemption only for those sources specifically required to include them in the PSD and NSRprograms.

Once it

### has been determinedthat a source (major orminor) reqUires apermit to construct, the applicant mustprovide information (for both fugitive andpointsource emissions):

o 

### Regarding the nature andamount of emissions (including secondary emissions);


### o Regarding the manner in which it will be operatedandcontrolled;
o 

### Demonstrating the stationary source or modification wouldcomply with all applicable local, state or federal emission standards; and

### o Demonstrating the stationarysource ormodification wouldnot cause or significantly contribute to a violation of any ambient air qualitystandard



### In addition, I have attached evidence ofthe December 5,2005 public hearing on "Proposed Revision to Idaho State Implementation Plan." This evidence includes the hearing transcript, the hearing officer's statement, comments submitted, and the sign-in roster.

Please let me know ifyou need any additional information.
Sincerely,

# 7J/~'~ Martin Bauer Administrator Air Quality Division

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## DepartmentofEnvironmental Quality

PUBLIC HEARING ON Docket No. PROPOSED REVISION 58-0000-0509
TO IDAHO STATE
IMPLEMENTATION PLAN ) )



## BEFORE LARRY WEEKS HearingOfficer

Held onDecember 5, 2005 3:02 p.m.

Reported by Patricia

### J. Terry
No. 653 

# TUCKER

and

### ASSOCIATES. LLC 

## Court Reporters
When excellence is an obligation P.O. Box 1625 605 West Fort Street Boise, ID 83701

Voice 2083453704 Fax 2083453713 Toll free 800 424 2354 Web www.etucker.net E-mail info@etucker.net



# ORIGINAL

### ~------------------------------------------------------------2--~


# APPEARANCES

ForDEQ

PAULA WILSON and LISA KRONBERG

ForIACI

RICHARD RUSH

For ICL

BILL EDDIE


# I For Givens Pursley, LLP 

### . I

HUGH O'RIORDAN

For Agri BeefCo.

RICK STOTT

For Idaho CattleAssociation

LLOYD KNIGHT

# EXHIBITS

EXHIBIT: PAGE:



## A CommentsbyIdaho Association ofCommerce and Industry 10 B 

### Commentsby Idaho ConservationLeague 16 C 

### Sign-In Roster 16

### Public Hearing onProposed Revision 

### 12/5/2005
Page 1
Department ofEnvironmental Quality

PUBLIC HEARING ON ) DocketNo. PROPOSED REVISION ) 58-0000-0509 TO IDAHO STATE IMPLEMENTATION PLAN

BEFORE LARRY WEEKS Hearing Officer Held on December 5, 2005 3:02 p.m.

Reported by Patricia J. Terry No. 653 Page 2
1 2 ForDEQ APPEARANCES

3 PAULA WILSON 4 and LISA KRONBERG 5 6 ForIACI 7 RICHARD RUSH 8 ForICL 

# 110 9

11 12 13 For Givens Pursley, LLP BILL EDDIE

14 

# 115 HUGH O'RIORDAN i 16 17 1 18 For Agri BeefCo. 19 120 RICKSTOTI 

## I 21 122 For Idaho Cattle Association 

## I 23 

# 124 LLOYD KNIGHT 

### I 25 Page 3

EXIDBITS

EXIDBIT:
PAGE:

A Comments byIdaho Association ofCommerce and IndustlO

B Comments byIdaho Conservation League 16

C Sign-In Roster 16

Page 4 BOISE, IDAHO Monday, December 5,2005,3:02 p.m.

HEARING OFFICER: Let the record show that I
am Larry Weeks, the hearing officer appointed to conduct this proceeding. Itis 3:02 p.m. on the 5th day ofDecember 2005. This is the time and place set to receive oral comments on the proposed revisions to the Idaho State ImplementationPlan. We are in the DEQ conference center in Boise, Idaho. Notice ofthis hearing appeared in the Idaho Administrative Bulletin onNovember 2nd, 2005. All those interested persons attending this proceeding are asked to sign in on the roster by the entrance indicating a desire ifany to make
an oral presentation. After a briefstatement made by DEQ, each person will be given an opportunity to provide comment. Since these proceedings are being recorded, I ask that those who make oral presentations state their name and provide the spelling ifnecessary. At this time DEQ, Paula, will make its statement. MS. WILSON: Okay. Thank you. Mr. Hearing 1 (Pages 1 to 4) 

### Tucker and Associates, Boise, Idaho, (208) 345-3704 www.etucker.net

### Public Hearing onProposed Revision 

### 12/5/2005
Page 5 Page 7

1 Officer, ladies and gentlemen, my name is 1 ofopposing environmental rules more stringent 2 Paula Wilson. I am the Idaho Department of 2 than federal requirements. In fact, there are 3 Environmental Quality hearing coordinator. 3 currently, I think I'm right, seven statutes in 4 The purpose ofthis hearing is to 4 Idaho code which limit the Idaho Board of 5 gatherpublic comments on aproposed SIP revision 5 Environmental Quality from adopting rules more 6 that DEQ intends to submit to the Environmental 6 stringent than federal requirements. 7 Protection Agency. The revision includes a change 7 Further, the state requires that a 8 made to Idaho Code Section 39-115 ofthe 8 statement ofexplanation be part ofany rule 9 Environmental Protection and Health Actpursuant 9 promUlgated by the Board ofEnvironmental Quality, 10 to House Bill 230 and its trailerbill, Senate 10 which is more stringent than federal law. And yet 11 Bill 1228, passed by the 2005 Idaho legislature 11 the court interpretation would have required DEQ 12 and signed by the governor. 12 to dramatically exceed federal requirements when 13 This statute change directed DEQ to 13 issuing an air quality permit to construct. 14 develop rules that define the term "regulated air 14 The result ofthis court action was to 15 pollutant" as it applies to the various Clean Air 15 unnecessarily increase the workload ofDEQ and 16 Actprograms and ensure fugitive emissions are 16 increase costs and delays to Idaho businesses when 17 only included in permit applicability 17 building new facilities. Our members vividly 18 determinations as required by federal law. 18 remember the outcry a few years ago caused by 19 Pending rule docket No. 58-0101-0503 19 delays in DEQ issuing air quality permits. DEQ 20 contains the rule changes developed as a result of 20 has worked hard to correct this problem and reduce 21 the legislation. The pending rule was adopted by 21 the permitbacklog. Adding additional 22 the Board ofEnvironmental Quality on November 17 22 requirements would add unneeded delays to this 23 2005 and will become final and effective upon 123 programjust like in the past. The legislature 24 adjournment ofthe 2006 legislative session if 24 had good reason to pass the legislation. 25 approved by the legislature. Thank you. 125 One ofthe main changes brought about**.-----~,-~--,-,-,-.----~ p~;;-~T------"-------------'-'-**  Page 8

1 HEARING OFFICER: Thank you, Paula. We'll 

# I 1 bythe court decision was a requirement to include 2 call in order those who have indicated they wish 1 2 fugitive emissions in the permit process. 3 to testify. Mr. Rush. 

# I 3 Fugitive means those emissions that are not 4 MR. RUSH: YourHonor, for the record my 

# I 4 emitted from a stack and include construction 5 name is Dick Rush, and I'm vice president for 

### I 5 dust, mining dust, dirt roads, livestock 6 natural resources for the Idaho Association of 

# I' 6 operations, and field tilling. House 230 repaired 7 Commerce and Industry, commonly called lAC!. Ou 7 this expansion ofregulation by requiring DEQ to 8 organization represents businesses and business 8 develop fugitive emission rules that match federal 9 associations ofall types and all sizes from 9 law. 10 throughout Idaho. Many ofour members are 10 Otherparts ofthe bill referred to 11 regulated under the Idaho and federal air quality 111 specific sections ofthe federal Clean Air Act and 12 statutes and regulations. 112 required that state air rules have the same 13 As mentioned in the official 13 requirements and meaning as those rules. House j 14 announcement by this hearing and by Paula, the 

# 114 Bill 230 was designed to clarify existing law, not 15 purpose is to consider proposed State 15 change it. It allowed DEQ to issue air permits as 16 Implementation Plan revisions resulting from 116 they have in the past and as the legislature 17 legislation passed during the 2005 session ofthe 117 intended. 18 Idaho legislature, commonly known an House Bill 118 The second bill, Senate Bi111228, also 19 230 and Senate Bill 1228. 119 passed during the 2005 legislative session. It 20 The reason for this air quality 

### i 20 was written at the request ofthe federal 21 legislation during the 2005 legislative session 121 Environmental Protection Agency and the Idaho 22 was a court decision that interpreted portions of 

# ! 22 Department ofEnvironmental Quality to provide 23 the Idaho air rules in a manner that exceeded 123 technical clarifications to portions ofHouse 230. 24 federal requirements. 

### i 24 Senate 1228 passed the Idaho Senate by a vote of 25 The Idaho legislature has a long record 125 28 to 8 and the Idaho House ofRepresentatives by 2 (Pages 5 to 8) 

### Tucker and Associates, Boise, Idaho, (208) 345-3704 www.etucker.net

### Public Hearing on Proposed Revision 

### 12/5/2005
Page 9
1 a vote of60 to nothing. 2 Finally,just a few weeks ago, the 3 Board ofEnvironmental Quality adoptedrules to 4 implement the above-mentioned legislation. 5 Interestingly, the final version ofthe docket 6 included an amendment made at the request ofthe 7 federal Environmental Protection Agency. 8 Because ofthe close working 9 relationship between the Idaho Department of 10 Environmental Quality and the federal 11 Environmental Protection Agency during the 12 drafting oflegislation during the 2005 13 legislative session and in writing the rules to 14 implement the legislation, there is no reason to 15 believe that EPA will oppose these revisions to 16 the Idaho State ImplementationPlan. 17 IACI strongly supports these revisions 18 to the state SIP. Theresult is that DEQ will 19 continue as they have in the past to administer 20 the air quality program according to federal law. 21 HEARING OFFICER: Thank you, Mr. Rush. 22 Would you like to submit that as an exhibit or 23 have you something else you propose? 24 MR. RUSH: Your Honor, I do have an extra 25 copy**o~!'!:J.td** be happy to**giv~.!~at** 

## !?l0U as Page 10
1 part ofthe record. 2 HEARING OFFICER: Mr. Rush's written 3 comments will be admitted as Exhibit A. 4 (Exhibit Amarked.) 5 HEARING OFFICER: Mr. Eddie. 6 MR. EDDIE: Thank you. My name is 7 Bill Eddie. I'm here on behalfofIdaho 8 Conservation League. I'm an attorney representing 9 them. I previouslyprovided written comments in 10 this docket. Ibelieve it's the same docket. I 11 provided them September 7,2005. I have another 12 copy for the record ifthat's necessary. 13 Idaho Conservation League is the 14 state's largest and oldest conservation 15 organization representing 3300 plus members around 16 the state. And 

### I'lljust walk through ourmajor 17 points ofconcern. 18 We appreciate DEQ convening this 19 hearing, but as we laid out in ourcomments and as 20 I've laid out to the Board ofEnvironmental 21 Quality, we don't think that it's possible for DEQ 22 as an agency to cure the regulatory or the 23 procedural defect that thus far is burdening this 24 SIP revision proposal. Basically the Clean Air 25 Act and the federal regulations under it require Page 11
1 the state to have the full notice and comment 2 procedures before, prior to both adoption and 3 submission ofa SIP revision. 4 And while I agree that we've come half 5 that way by having this hearing and otherDEQ 6 proceedings before submission ofthe SIP, adoption 7 ofthis SIP revision happened when the legislature 8 enacted House Bill 230 and Senate Bill 1228. It's 9 not possible for DEQ legally to do anything 10 besides what the legislature specifically ordered 11 it to do back in March and April ofthis year. 12 So in one sense I'm hopeful that DEQ 13 will respond to my concerns, but all I can do, I 14 said this at the board a few weeks ago, is hope 15 thatDEQ will advocate for, lobby for an amendment 16 orrevision ofHouse Bill 230 and Senate Bill 17 1228. Because ifDEQ does not do so, it is 18 powerless to address the substantive comments that 19 I have. 20 So in summary, the procedural error 21 incumbent upon this or that's burdening the SIP 22 revision is not cured in our mind and continues to 23 be a legal barrier to these rule changes and the 24 statutes which were submitted to EPA for approval 25 as part ofthe SIP

.

..**~~---~--~** Page 12
1 Turning to the substantive comments, 2 just I'llbriefly walk through mywritten comments 3 to make sure that thepoints are clear. The 4 federal regulations require that DEQ make a 5 demonstration andprovide a basis for the SIP and 6 basis for which its determination ofwhich 7 facilities will beregulated and subject to review 8 under the permitting requirements. In this case, 9 the basis for the SIP revision and the basis for 10 narrowing the scope ofthe SIP is the 11 legislature'S determination that it should be a 12 narrower group offacilities. 13 It's notbeen a scientific approach, if 14 you will, determining which facilities actually 15 cause air quality concerns here in the Treasure 16 Valley oraround the state. It's been a political 17 decision that we should tie ourselves with the 18 federal minimum and not actually address the 19 concerns. And what are the most recent air 20 quality concerns that have come up, and what has 21 DEQ said about what's causing those problems? 22 Back in 2004 a feedlot in Weiser, 23 obviously a fugitive source ofdust, caused 24 exceedences ofparticulate matter standards for 25 health. DEQ was, ofcourse, able to take after3 (Pages 9 to 12) 

### Tucker and Associates, Boise, Idaho, (208) 345-3704 www.etucker.net

### Public Hearing onProposed Revision 12/5/2005
Page 13 Page 15
1 the-fact authority enforcement action, which I 1 VOCs, ifthis SIP revision is submitted to EPA and 2 hope has corrected the problem. But that feedlot 2 it's approved, we will beputting ourselves behind 3 to my knowledge has never been subjectto a permit 3 the curve and allowing the growing body ofscience 4 to construct. And so therefore, there's no 4 to perhaps get ahead ofus and creating problems 5 upfront authority within DEQ after these rules 5 for air quality, creating problems for maintenance 6 have come down to prevent a feedlot or another 6 ofNAAQS. Because ifthe SIP revision is 7 fugitive source ofdust or VOCs for that matter 7 approved, DEQ will have no authority to regulate 8 from causing a violation ofthe NAAQS. 8 fugitive emissions ofVOCs from livestock 9 On the issue ofammonia, what we have 9 operations or any other fugitive source. 10 is a rapidly developing both scientific suite of 10 And again, the final pointwe made in 11 information and a growing regulation ofammonia 11 ourcomments was that we ask for a review by DEQ 12 aprecursor for PM-2.5. EPA this year has been 12 as to whetherthis SIP revision will constitute 13 ruling outfederal rules governing implementation 13 backsliding from the Treasure Valley Maintenance 14 ofPM-2.5 standard both on a transportation 14 Plan for PMl0 because the maintenanceplan refers 15 conformitybasis and on a general implementation 15 to and I believe incorporates the Rules 200 ofthe 16 basis for permitting situations. Both ofthose 16 SIP, which are the permit to construct 17 officially designate ammonia as a precursor for 17 requirements. And ifthose rules are 18 PM-2.5, albeit in certain situations. But the 18 substantially weakened orrevised, I think you 19 point is that the treatment ofammonia as a 19 have a backsliding issue. So we ask for that 20 precursor is an emerging issue. 20 review to ensure thatpart ofthe Clean Air Act is 21 And by submitting this SIP revision, 21 notviolated. 22 which will clearly take ammonia out ofthe 22 That's all I have. 23 permitting program except in very, very narrow 23 HEARING OFFICER: Mr. Eddie, would you like 24 situations where it's applicable under Section 24 to submit that as an exhibit? 25 Il2R ofthe Clean Air Act, we are putting 25 MR. EDDIE: Sure, although they are Page 14 Page 16
1 ourselves basically behind the ball. Instead of 1 in the docket, but go for it. 2 staying infront ofthe curve, the regulatory 2 HEARING OFFICER: Mr. Eddie's document will 3 curve and the scientific curve by at least 3 be admitted as Exhibit B. 4 preserving the authority to regulate ammonia unde 4 (Exhibit B marked.) S the permitting programs, we're deciding to put 5 HEARING OFFICER: And let's go offthe 6 ourselves behind the curve. I thinkthat's a 6 record a minute. 7 mistake from a policyperspective. 7 (Discussion held offthe record.) 8 Clearlyunder the SIP as it's currently 8 HEARING OFFICER: Anybody else wish to 9 drafted, DEQ has the authorityto regulate 9 testify orretestify? Lisa? No? 10 ammonia, not only from fugitive operations but 10 MS. KRONBERG: No. 11 from point source operations. And myreading of 11 HEARING OFFICER: I think we will then go 12 the SIP revision ifit's been submitted to EPA and 12 back offthe record and give it another 10 or 15 13 approved is that that authority will disappear. 13 minutes and see ifanyone else appears. So we'll 14 Another emerging issue is VOCs, 14 be off. 

### lS fugitive sources ofVOCs, precursors regulated as 15 (Recess.) 16 ozone. Again, the growing body ofscientific 16 HEARING OFFICER: We'll be back on the 17 information is highlighting livestock operations 17 record. The sign-in roster from the proceeding 18 as a source ofVOCs. In Califomia, the 18 will be admitted as Exhibit C. 19 San Joaquin Valley Air QualityDistrict adopted an 19 (Exhibit C marked.) 20 emission factor for dairy emissions ofVOCs. 20 HEARING OFFICER: No otherpersons have 21 Logically there's also VOCs emissions from other 21 appeared whose names are not on the roster, and it 22 livestock operations such as feedlots. 22 is now 3:35 p.m., and the hearing is now closed. 23 And again, instead ofputting ourselves 23 (The hearing concluded at 3:35 p.m.) 24 at least withthe curve, ifnot ahead ofthe 24 -00000­ 2S curve, onthe growing scientific information on 25 4 (Pages 13 to 16) 

### Tucker and Associates, Boise, Idaho, (208) 345-3704 www.etucker.net

### Public Hearing onProposed Revision 12/5/2005 Page 17

A able 12:25 above-mentioned9:4 Act 5:9,168:11 10:25 13:25 15:20 action 7:1413:1 add7:22 Adding 7:21 additional7:21 address 11:1812:18 adjournment5:24 administer9: 19 Administrative4: 12 admitted 10:316:3,18 adopted5:21 9:3 14:19 adopting7:5 adoption 11 :2,6 advocate 11: 15 agency 5:78:219:7,11 10:22 ago7:189:211:14 agree 11:4 Agri 2:18 ahead 14:2415:4 air 5:14,156:11,20,23

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### Tucker and Associates, Boise, Idaho, (208) 345-3704 www.etucker.net

### Public Hearing on Proposed Revision 

### 12/5/2005 Page 18

NAAQS 13:8 15:6 point 13:1914:11 15:10 .J regulate 14:4,9 15:7 session 5:246:17,21 8:19 name4:21 5:1 6:5 10:6 points 10:1712:3 regulated5:146:1112:7 9:13 J 1:24 names 16:21 policy 14:7 14:15 set 4:8 Joaquin 14:19 narrow 13:23 political 12: 16 regulation 8:7 13: 11 seven 7:3 narrower 12:12 pollutant5: 15 regulations 6:1210:25 show 4:4 K narrowing 12:10 portions6:22 8:23 12:4 sign 4:15 KNIGBT2:25 natural6:6 possible 10:21 11:9 regulatory 10:22 14:2 signed 5:12 knowledge 13:3 necessary4:2210:12 powerless 11: 18 relationship9:9 sign-in 3:1316:17 known 6:18 never 13:3 precursor 13: 12,17,20 remember7: 18 SIP5:59:1810:2411:3,6 KRONBERG 2:416:10 new 7:17 precursors 14:15 repaired 8:6 11:7,21,25 12:5,9,10 notice4:11 11:1 presentation4: 17 Reported 1:23 13:21 14:8,12 15:1,6,12 I November4: 12 5:22 presentations4:21 Representatives8:25 15:16 ladies 5: I preserving 14:4 representing 10:8,15 situations 13:16,18,24 laid 10:19,20 

## o president6:5 represents6:8 sizes 6:9 largest 10: 14 prevent 13:6 obviously 12:23 request 8:209:6 source 12:2313:714:11 Larry 1:9 4:5 previously 10:9 require 10:25 12:4 officer I: I 04:4,5 5: I 6: I 14:1815:9 law 5:187:10 8:9,14 9:20 prior 11:2 9:21 10:2,5 15:23 16:2 required5:187:118:12 sources 14:15 League3:12 10:8,13 problem7:20 13:2 16:5,8,11,16,20 requirement8: I specific 8: 11 legal 11:23 problems 12:21 15:4,5 requirements6:247:2,6 official 6: 13 specifically 1I: 10 legally 11:9 procedural 10:23 11 :20 officially 13: 17 7:12,228:13 12:815:17 spelling4:22 legislation 5:21 6: 17,21 procedures 11 :2 Okay4:25 requires7:7 stack 8:4 7:249:4,12,14 proceeding4:6,1516:17 requiring8:7 oldest 10: 14 standard 13: 14 legislative 5:24 6:21 8: 19 proceedings4:20 11:6 resources 6:6 0000016:24 standards 12:24 9:13 process 8:2 operations 8:6 14:10,11 respond 11:13 state 1:3 4:9,21 6: 157:7 legislature 5: 11,256:18 program7:23 9:20 13:23 14:17,2215:9 result5:20 7: 14 9: 18 8:129:16,1810:1611:1 6:257:238:1611:7,10 programs5:16 14:5 opportunity4: 19 resulting6: 16 12:16 legislature's 12: II promulgated7:9 retestify 16:9 oppose 9:15 statement4: 17,24 7:8 let's 16:5 proposal I 0:24 opposing7: I review 12:7 15:11,20 state's 10: 14 limit 7:4 propose9:23 oral4:8, 17,21 revised 15:18 statute 5:13 Lisa 2:4 16:9 proposed 1:3 4:8 5:5 6:15 order6:2 revision 1:35:5,710:24 statutes 6:12 7:311:24 livestock 8:5 14:17,22 Protection 5:7,98:21 9:7 11:3,7,16,2212:913:21 ordered 11:10 staying 14:2 15:8 9:11 14:1215:1,6,12 organization6:8 10:15 STOTT 2:20 LLOYD 2:25 provide4: 19,22 8:2212:5 revisions4:96: 169:15, 17 outcry 7:18 stringent7: I ,6,10 LLP 2:13 provided 10:9,11 ozone 14:16 RICHARD2:7 strongly 9: 17 lobby 11:15 public 1:25:5 RICK2:20 O'RIORDAN 2: 15 subject 12:7 13:3 Logically 14:21 purpose5:4 6: 15 right 7:3 submission 11:3,6 long 6:25 P Pursley2: 13 roads 8:5 submit5:6 9:22 15:24 pursuant5:9 roster 3:13 4: 15 16: 17,21 submitted 11:2414:12 P2:1,1 M put 14:5 rule5:19,20,21 7:8 1I:23 15:1 PAGE 3:9 main 7:25 putting 13:25 14:23 15:2 rules 5:14 6:237:1,58:8 submitting 13:21 part7:8 10:1 1l:25 15:20 maintenance 15:5,13,14 p.m 1:11 4:2,616:22,23 8:12,139:3,1313:5,13 substantially 15:18 particulate 12:24 major 10:16 15:15,17 substantive 11:1812:1**--~~.--.----** parts 8:10 manner6:23 Q ruling 13:13 suite 13:10 pass 7:24 March 11:11 Rush 2:7 6:3,4,5 9:21,24 summary 11 :20 quality I: I 5:3,22 6: 11,20 passed5:11 6:178:19,24 marked 10:416:4,19 Rush's 10:2 supports 9: 17 7:5,9,13,198:229:3,10 Patricia 1:24 match 8:8 sure 12:3 15:25 9:2010:21 12:15,20 Paula2:44:23 5:2 6:1,14 matter 12:24 13:7 S_

.. 14:19 15:5 pending5: 19,21 meaning 8: 13 T S 2:1 permit5:17 7:13,218:2 means 8:3 R San 14:19 take 12:25 13:22 13:315:16 members6: 10 7:1710:15 science 15:3 technical 8:23 permits7: 19 8: 15 R2:1 mentioned6: 13 scientific 12: 13 13: 10 term 5:14 permitting 12:813:16,23 rapidly 13: 10 mind 11:22 14:3,16,25 Terry 1:24 14:5 reading 14:11 minimum 12:18 scope 12:10 testify 6:3 16:9 person 4:18 reason 6:207:249:14 mining 8:5 second 8:18 Thank4:25 5:25 6:19:21 persons4: 14 16:20 receive 4:8 minute 16:6 Section 5:8 13:24 10:6 perspective 14:7 Recess 16: 15 minutes 16:13 sections 8: II the-fact 13: 1 place4:8 record 4:4 6:4,25 10: 1,12 mistake 14:7 see 16:13 think7:3 10:21 14:6 plan 1:44:96:169:16 16:6,7,12,17 Monday4:2 Senate5: 10 6: 198:18,24 15:1816:11 15:14,14 recorded4:20 8:2411:8,16 tie 12:17 plus 10:15 reduce7:20 N sense 11 :12 tilling 8:6 PM-2.S 13:12,14,18 referred 8: 10 N2:1 September 10: II time4:7,23 PMIO 15:14 refers 15: 14



### Tucker and Associates, Boise, Idaho, (208) 345-3704 www.etucker.net----------- 

### Public Hearing on Proposed Revision 12/5/2005 Page 19

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# REPORTER'S CERTIFICATE

STATE OF IDAHO ) ) 

### CountyofAda )

l; 

### Patricia

# J. Terry! CourtReporter ProTempore! Countyof
Ada! State ofIdaho! hereby certify:
ThatI am the reporterwho took the proceedings hadinthe
above-entitled actioninmachine shorthand and thereafter the same was
reduced intotypewritingundermydirect supervision; and
Thattheforegoing reporter's tanscript contains a fult true!
and accurate record of the proceedingshad in the above and foregoing
cause! which was heard atBoise, Idaho.
INWITNESS WHEREOF, I have hereunto setmyhand this 1J!!dayof

# ~ha._r 

# ,2005.**o~Tempore**

### HEARING OFFICER'S STATEMENT Public Hearing on Proposed Revision to Idaho SIP



### LOCATION: DEQ Conference Center, Boise, Idaho. DATE: December 5, 2005

Let the record show that I am Larry Weeks, the hearing officer appointed to conduct this proceeding. It is p.m. on the 5th 

### day of December 2005. This is the time and place set to receive oral comments on the proposed revisions to the Idaho State Implementation Plan.

We are in the DEQ Conference Center in Boise, Idaho. Notice ofthis hearing appeared in the Idaho Administrative Bulletin on November 2, 2005.

All those interested persons attending this proceeding are asked to sign in on the roster by the entrance, indicating a desire, if any, to make an oral presentation. After a brief statement made by DEQ, each·person will be given an opportunity to provide comment. Since these proceedings are being recorded, I ask that those who make oral presentations state their name and provide the spelling if necessary. 

### DEQ Statement At this time, DEQ will make its statement.

**************ORAL PRESENTATIONS *****



### Closing Statement It is p.m. and the hearing is now closed.

### Statement ofthe Department of Environmental Quality Proposed Revision to the Idaho State Implementation Plan, Changes to Idaho Code Section 39-115

Mr. Hearing Officer, ladies and gentlemen, my name is Paula Wilson. I am the Idaho Department of Environmental Quality Hearing Coordinator.

The purpose ofthis hearing is to gather public comments on a proposed SIP revision that DEQ 

### intends to submit to the Environmental Protection Agency. The revision includes a change made to Idaho Code 

## § 39-115 ofthe Environmental Protection and Health Act pursuant to HB 230 and its trailer bill, Senate Bill 1228, passed by the 2005 Idaho Legislature and signed by the Governor. This statute change directed DEQ 

### to develop rules that define the term regulated air pollutant as it applies to the various federal Clean Air Act programs, and ensure fugitive emissions are only included in permit applicability determinations as required byfederal law. Pending Rule Docket No. 58-0101-0503 contains the rule changes developed as a result ofthe legislation. The pending rule was adopted bythe Board of Environmental Quality on November 17, 2005 and will become final and effective upon adjournment ofthe 2006 legislative session if approved by the Legislature.



# I I

# December 5, 2005 Talking Points: DEQ Public Hearing Revision to the State Implementation Plan (SIP) H230, S1228 Air Quality Docket 58-0101-0503 By: Richard Rush, Vice President for Natural Resources, IACI

Forthe record, myname is DickRush and I am Vice President for Natural Resources for the Idaho Association ofCommerce and Industry, IAC!. Ourorganization represents businesses and business associations ofall types and sizes from throughout Idaho. Many ofour members are regulated under the Idaho and Federal AirQuality Statutes and Regulations.

Asmentioned in the official announcement for this hearing, the purpose is to considerproposed SIP revisions resulting from legislationpassed during the 2005 session ofthe Idaho Legislature, known as H230 and S1228.

The reason for this air quality legislation during the 2005 legislative session was a court decision that interpreted portions of the Idaho air rules in a Inanner that exceeded federal requirements.

The Idaho legislature has a long record ofopposing environmental rules more stringentthan Federal requirements. In fact, there are currently seven statutes in Idaho code, which limitthe Idaho Board ofEnvironmental Quality from adopting rules more stringent than federal requirements. Further, the state requires that a statement of explanation bepartofany rule pronlulgatedby the Board of Environmental Quality, more stringentthan federal law

. Andyet, the court interpretation would have required DEQ to dramatically exceed federal requirements when issuing an air quality, permit to construct (PTC).

# The result ofthis court action was to unnecessarily increase the workload ofDEQ and increase costs and delays to Idaho businesses when building new facilities.

Our members vividly remember the outcry a few years ago caused by delays in DEQ issuing air quality permits. DEQ has worked hard to correct this problem and reduce the permitbacklog. Adding additional requirements would add unneeded delays in this program

- just like in the past. The legislaturehad good reason to pass the legislation.

One ofthe main changes brought about by the court decision was a requirement to include "fugitive" emissions in the permitprocess. Fugitive means those emissions that are not emitted from a stack, and include construction dust, mining dust, dirtroads, livestock operations and field tilling.

H230 repaired this expansion ofregulation by requiring DEQ to develop fugitive emission rules that match federal law

. Otherparts ofthe bill referred to specific sections ofthe federal clean air act, and required that state airrules have the same requirements and meaning as those rules.

H230 was designed to clarify existing law, not change it. It 

# allowed DEQ to issue airpermits as they have in the past, and as the legislature intended.

Senate Bill 1228, also passed during the 2005 legislative session,
was written at the request ofthe federal Enviromnental Protection Agency and the Idaho Department ofEnviromnental Quality to provide technical clarifications to portions ofH230. S1228 passed the Idaho Senate by a vote of28-8 and the Idaho House of Representatives by a vote of66-0.

# Finally,just a few weeks ago, the Board ofEnvironmental Quality adopted rules to implement the above-mentioned legislation. Interestingly, the final version ofthe docket included an amendment made at the request ofthe federal Environmental ProtectionAgency.

Because ofthe close working relationship between the Idaho Department ofEnvironmental Quality and the federal Environmental Protection Agency during the drafting oflegislation during the 2005 legislative session, and in writing the rules to implementthe legislation, there is no reason to believe thatEPA will oppose these revisions to the Idaho State Implementation plan.

lACI strongly supports these revisions to the State Implementation 

# 1 plan. The result is that DEQ will continue, as they have in the , ) past, to adlninister the air quality program according to federal law

.

# ADVOCATES:].sWEST

Public Interest Environmental Law EXHIBIT. 

# 1$

September 7,2005

PaulaWilson DEQ State Office 1410 N. Hilton Boise, Idaho 83706

Re: DEQ Rulemaking Docket 58-0I01-0503 (Rules implementing H230 and S1228)

DearMs. Wilson:

These comments are submitted onbehalfofIdaho Conservation League in reference to DEQ Rulemaking Docket 58-0101-0503. 

# I . I 

### The Idaho Conservation League ("ICL") is Idaho's largest and oldest organization devoted to the protection ofIdaho's cleanwater, wilderness and quality oflife. Its community conservation program works to protect communityhealth, clean water and clean air. ICL's 3300 members work, live andrecreate throughoutthe entire state of Idaho. ICL has a directinterestin this rulemaking docketbecause itimplements laws that have weakened air qualityprotections, and therefore pose a threatto thehealth of ICLmembers, as well as to the ability ofICLand its members to protectpublic health andthe environment from airpollution.



### UnlawfulProcedure

The Clean Air Act and its implementingregulations require the State to follow certain specific procedures before adopting a revision to a State Implementation Plan ("SIP") and later submitting it to the U.S. Environmental Protection Agency ("EPA") for approval. The specific procedures are found at 40 C.F.R. 

### § 51.102. The State is required to hold a public hearing after "reasonable notice." The term "reasonablenotice" means that at least "30 days priorto the date ofsuch hearing" the Statemust display a "prominent advertisement inthe area affected announcing the date, time andplace ofthe hearing," among othernotice andrecordkeeping requirements, such as noticeto EPA ofthe hearing. 40 C.F.R. 

### § 51.102(a) and (d).

This rulemaking's history begins with the Idaho federal court's decision published at Idaho ConservationLeague v. Boer, 362 F.Supp. 2d 1211 (D.Idaho 2004). That decision inspiredthe 

### lda40 Association ofCommerce and Industry (lACI) to draft and lobbythe

. legislature to adopt significant changesto Idaho's air quality program. TheIACI bill first emerged as H230 witWn theHouse.8tate Affairs committee for printing onFebruary 16,2005. OnFebruary 24,2005, the House Environment, Energy andTechnology Committeeheld a hearing and recommendedpassage ofH230.

At some point inthe process, lACI then drafted and soughtpassage ofa "trailerbill" (SB 1228) to significantly modify H230by adding a definition of"regulated air pollutant" to

P.O. Box 1612, Boise.ID 8370I 208-342-7024 Fax: 208-342"8286 www.AdvocatesWest.org

### ICL Comments on H230/S1228 

### Implementation Page 2 of6
include the federal list ofhazardous airpollutants. The ftrst public mention ofS1228 of which ICL is aware occurred on March 16,2005, at the Senate Health andWelfare Committee hearing. Even at that committee meeting, IACI spokesman DickRush did not have an offtcial "RS"draft ofthe trailerbill to provide to the Committee. A few days later (March 21,2005), the Senate Judiciary and Rules Committee voted to print RS 15168 (which became SI228), butthe minutes reflect thatthis print hearing was not even onthe Committee's agenda for that day. The very next day (March 22, 2005), at the Senate Health andWelfare Committee hearing on S1228, the Committee chair allowed IACI to present the bill, butthen immediately called a vote on the bill without any opportunity for public comment. The Governorultimately signedthe H230/S 1228 

### package on April 6, 2005.

Ofcourse, in this rushedprocess to adopt H230 and S1228, the State never even attempted to comply with the Clean Air Act notice requirements for SIP revisions. Committee meetings surely are open to the public, but in some cases the relevant committees provided only same-daynotice (orno notice at all) that they would consider H230/S

### 1228. Neither DEQ nor any state agency circulated any document to explain the full impact ofH230 or S1228 on the airprogram orair quality. DEQ's comments at committee meetings were very limited, andgenerally made in response to questions from legislators.

This haphazardprocess signiftcantlyprejudiced ICL's interests and the interests ofits members. One ofICL's fundamental purposes is to inform its members around the state ofimportant changes inpolicythat might impact theirhealth and enjoyment oftheir property, and to facilitate citizen involvement in those changes. ICL's goals in that regard parallel the intent ofthe Clean Air Act's regulations requiring healthypublic participation for SIP revisions.

.
Because ofthe inadequate notice and information provided for H230 and SI228, ICL was unable to provide adequa.te informationto its members onwhat the impact ofthe bills on the overall airprogrammightbe, when the bills wouldbe considered at committee meetings, to whomwritten comments shouldbe directed to, and whether oral comments would evenbe**re~eived** 

### bythe committees. For S1228, the public was essentially in the dark onthe hill's very.language until the day before it was taken up the Senate Health and Welfare Committee; and then thatthe Committee took no public comment at all. This politicalprocess maybethe ordinary course ofaffairs for other changes in state law. Butit surely is notthe ordinary orlegal course for adopting a change in a SIP.

Forpresentpurposes, ICL is submitting these comments to protectits rightto appeal and seekjudicialreview oftheproposedrule changes. However, we recognize that H230 and S1228 accordDEQ no discretion to make any changes to any ofthe substantive provisions in those newprovisions ofIdaho Code, norto the regulations nowproposed to 

### implement them. For example, evenifa team ofNobel prize winning scientists were to submithighlypersuasive, science-backed comments in this docket stating, for example, that fugitive emissions ofvolatile organic compounds shouldbe counted toward applicability determinations fOfpermittingpurposes so as to protect human health, DEQ

### ICL Comments on H230/S1228 Implementation Page 3 of6
would bepowerless to change the fact that H230 and S1228 demand such emissionsbe excluded.

In short, these changes were adopted and fixed when the governor signed H230 and S1228. DEQ's issuance ofthese rules is nothing more than a ministerial action incumbentupon the agencyperH230- and S1228; and thepublic commentperiod provided for these proposedrules is a pro forma exercise which cannotpossiblyresult in
a substantive change inthe rules. Nor can DEQ's commentperiod correct the State's violations of40 C.F.R. § 51.102.
Inadequate Authority To Ensure Maintenance OfNAAQS



### ICLhas the following comments on the substantive impact ofH230 and S1228, although
werecognize DEQ is powerless to address these comments.

The State must make a demonstration that its rules "are adequate to provide for the timely attainment and maintenance ofthe national standardthat it implements." 40 C.F.R. 

### § 51.112(a). The State also is required tojustifythe application ofits "legallyenforceable procedures" for reviewingnew sources:
Theseprocedures must identify types and sizes offacilities, building, structures, orinstallations which will be subject to review underthis section. Theplan must discuss thebasis for determinmg which facilities will be subjectto review.

40 C.F.R. § 51.160(e).

Dust From Animal Operations

.As DEQ is aware, dust emitted from animal feeding operations can result in the exceedance of NAAQS. DEQ brought an enforcement action in 2004 against Seth Matthews dba Matthews SunnysideFeedlotpreciselybecause air quality data collected
near the feedlot showed particulate levels ofapproximately "twicethe level offederal health-based standards." DEQNews Release 

### (4/22/04). Unfortunately, excessive dust from feedlot**operation~** 

### is a commonproblem in manyparts ofthe state.

Underthe current SIP, DEQ has the authorityto require feedlots to obtainpermits to construct, and thus provide assurance that dust managementplans are in-place. Yet after H230 and S1228, that authoritywillbe stripped from DEQ. DEQ will have onlythe limited, after-the-fact enforcement authorities provided atRules 650 and 651 ofthe Idaho AirRules and the Idaho Protection and HealthAct. As demonstrated inthe Matthews case, such after-the-fact authorities are grossly inadequate, s!nce they alloweq the public tobeexposed to levels ofparticulates atdouble the health-based standard.

Because there willbeno SIP-basedpermitting for fugitive dust sources (exceptin the rare case where federal law requires it), DEQ will notbe able to require fugitive dust

# I 1 

### ICL Comments on H230/S1228 Implementation Page 4 of6 managementplans atthe construction oroperation stage to

### prevent feedlots and similar fugitive sources ofdust from causing exceedances ofNAAQS. Rather DEQ will onlybe able to take enforcement action after such exceedances have already occurred. The new SJP, ifapproved byEPA, will be inadequate to ensure new and existing sources of fugitive dust do not cause exceedances ofNAAQS.

Ammonia FromAnimal Operations In rules governing transportation conformity issues, EPA recently formally recognized ammonia as a precursorto PM-2.S production. 70 Fed.Reg. 24,280 (May 6, 200S). This rulerequires consideration ofammonia in PM-2.S SIPs (fornonattainment and maintenance areas) in areas whereon-road emissions ofamnioniaare a significant contributor to PM-2.5 production. It

### is reasonable to anticipate ammonia will betreated
as a precursor in the forthcoming PM-2.S NAAQS implementationrule.

As DEQ is aware, ammonia plays a significant factor in episodes ofhigh PM-2.S levels in the TreasUre Valley:

.
Oxides ofnitrogen, sulfurdioxide, and ammonia are precursors, or ingredients, ofsecondaryparticulate matter. Ammonia gas forms ammonium nitrate particulate matter when itreacts with nitric acid in the· air. Ammonia gas forms ammonium sulfateparticulate matter when it reacts with sulfuric acid in the air. On the mostpolluted days, approximately48% ofPM2.5 is made up of ammonium nitrate and ammonia sulfate.

DEQresearch indicates that other "ingredients" (NOx and S02), or**precursor~,** 

### are less abundant than ammonia inthe Treasure Valley, and therefore limitthe formation ofsecondaryparticulates. However, increases in anyone ofthe precursor emissions increases the potential for additional secondary aerosol formation. Increases to ammonia emissions should be considered equally along with those ofthe other precursors.

Idaho DEQ, Treasure ValleyAir Quality Issues: Ammonia. Particulate Matter. andVOC Emissions at 5 (2003) (internal citations omitted). See also National Research Council, AirEmissions from Animal Feeding Operations at S2 (2003).

The 2002 NASS Census ofAgriculture found there were approximately 266,000 cattle in Ada, Canyon, and Payette counties, some 62,000 ofwhich were milk cows. Ammonia emissions from milkcows canbemeasured with reasonable accuracyusing the thresholds recently submitted to DEQ byICL and the IndependentDairy Environmental Action League. The lowest emissionrate for ammonia specifiedin the thresholds agreement was about 100 tons ofammoniaper SOOO head (on drylot dairies).Flush and scrape dairies have muchhigher ammonia emission rates. Even assuming (for illustrative purposes) that all Treasure Valleymilk cattle are housed on drylots, their ammonia

### ICL Comments onH230/S1228 Implementation Page 5 of6
emissions would total over 1,200 tons peryear. Adding beefcattle ammonia emissions,
evenunderultra-conservative assumed emission factor of20 pounds perheadper year, would take the total ammonia emissions from animal feeding operations to well over 3000 tons per year.
Under the current SIP, ammonia is a regulated air pollutantbecause it is a pollutant regulatedunderSection 112(r) ofthe Clean AirAct. DEQ therefore has ,the authorityto regulate ammonia emissions from dairies and feedlots underthe SIP'spermitto construct prograin. That SIP authority is stripped by H230 and S1228. DEQ's ongoing rulemaking for air quality control at dairies is not [mal. Moreover, ICL understands DEQ does not intend the new rules for dairies to bepart ofthe federally enforceable SIP at all. Therefore the new rules cannot makeup for-this deficiency. Thenew SIP, if approved byEPA, will be inadequate to ensure new and existing sources ofammonia (fugitive or stack) do not cause exceedances ofNAAQS.

VOCs FromAnimal Operations

Emissions ofvolatile organic compounds ("VOC") from livestock operations are significant, andmany such emissions are from fugitive sources. VOCs are a precursor to the formation ofozone. 

### IntheTreasure Valley, Idaho DEQ reports that air quality monitors inbothAda and Canyon Counties detected exceedances ofthe federal standards for ozone during summer 2002, noting:

These exceedances raise the possibility ofozone and/or PM2.s nonattainment designation for the Treasure Valley. Moreover, continued degradation ofair quality willjeopardizepublic health and could severelyimpactthe economy and development ofthe region. '
http://www.deq.state.id.us/air/datareports/monitoring/bro.cfin

The San Joaquin Valley Air Pollution Control District recently adopted a final emission factor for VOC emissions from dairies in the amount of 19.3 pounds/head/year. Although ICL is notaware ofthe [mal adoption ofany emission factor for VOC emissions from beefcattle, such emissions surely are not zero. For conservative estimation, for beefcattle we will use the figure 6.8 pounds/head/year, which researchers atUC Davis found for enteric emissions from dairy cattle (actual emissions are surely much higher).
Using the animal numbers in the 2002 NASS Census ofAgriculture, dairy cattle in Ada, Canyon, and Payette counties account for about 1.2 million pounds or about 600 tons of VOC emissions in the Treasure Valley each year (and growing). Using the conservative estimatenoted above, beefcattle would also account for nearly 700 tons ofVOC emissions. Payette Countyrecently approved a dairyof 11,000 animals, thus adding approximately 106 tons ofVOC emissions to the Treasure Valley airshed without any analysis or assessment ofthe impacts ofsuch emissions on our currentlytenuous attainment status for ozone.

## !**~** . j 

### ICL Comments on 

### H230/S1228 Implementation Page 6 of6

DEQ presently canregulate dairies underthe PTCprogram to ensure applicable NAAQS
are not violated. The SIP changes adoptedbyH230 and S1228 will eliminate that authority. DEQ will have no authorityto regulate new fugitive sources ofVOCs to
ensure they do not cause violations ofNAAQS. Thenew SIP, ifapprovedbyEPA, will be inadequate to ensure new and existing fugitive sources ofVOCs do not cause exceedances cifNAAQS.
Backsliding



### ICL is concerned that the H230 and S1228 changes constitute backsliding and violate requirements under the Treasure ValleyMaintenance Plan and any othernonattainment
or maintenance plan. For example, Section 6.6 ofthe Maintenance Plan specifically cites Rules 200 et seq. as part ofthe State's "PermittingProgramto Ensure thatNew Sources will not Jeopardize ContinuedMaintenance." As set forth above, H230 and S1228 significantlyreduce DEQ's authorities under Rules 200 et seq., and therefore its abilityto regulate emissions ofparticulates and precursors to particulate formation. This change in law calls into question DEQ's abilityto fulfill the Maintenance Plan and other obligations in maintenance and nonattainment areas.
Conclusion



### Dueto the procedural defects identified above, the proposedrules are not approvable by EPAas federally enforceable revisions to Idaho' State Implementation Plan. Moreover, the proposed rules strip DEQ ofany meaningful authorityto preventexceedances of NAAQS for particulates and ozone causedbyanimal feeding operations and other fugitive sources ofparticulates, ammonia, and VOCs.

William M. Eddie On behalfofIdaho Conservation League

./ (

## SIGN-IN ROSTER FOR PUBLIC HBARING Proposed Revision to Idaho SIP



### LOCATION: DEQ Conference Center, 1410 N. Hilton, Boise, Idaho 

### DATE: December 5, 2005



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# jQ';?-OS]i'Docket Number: 58-0101-0503 Effective Date: 2006 Sine die Rules Title: Rules for the Control ofAir Pollution in Idaho Agency Contact and Phone: Martin Bauer, 373-0440

Descriptive Summary: House Bill 230 and Senate Bill 1228 require the Department of Environmental Quality (DEQ) to adopt rules that define the term "regulated air pollutant" as it applies to various Clean Air Act (CM) permit to construct and operating permit programs. In addition, these bills require DEQ to adopt rules that are consistent with the CM and its implementing regulations in regard to the permit applicability treatment offugitive emissions.

Revisions to the Rules for the Control ofAir Pollution in Idaho will clarify certain rule sections and permit requirements to ensure consistency with federal CM requirements.
One public comment was received. The proposed rule has not been revised in response to that comment. However, the definition of Modification at Subsection 006.56 has been revised to clarify the intent of H230 and S1228 and to ensure the state only toxic air pollutant program continues to operate as it has since inception. DEQ recommends that the Board adopt the rule. as presented in the final proposal. as a pending rule with a final effective date coinciding with the adjournment 

### sine die ofthe Second Regular Session of the Fifty-eighth Idaho Legislature. The rule is subject to review by the Legislature before becoming final and effective. Public Notice Negotiated Rule Making: [XI Yes [INo Groups Involved: sign-in sheet attached

Hearings: [XI Yes [ INo Locations and Dates: Boise, 917105

Written Comment Deadline: 917105

Cost Impact Agency: There will be no additional costs to the agency due to these rule changes. Regulated Community: These rule revisions may potentially save money and resources for certain industries.

Relevant Statutes: Idaho Code ,H 39-105 and 107. House Bill 230 and Senate Bill 1228 (codified at Idaho Code;) 39­ 115). Idaho Code 339-1070 Statement: This rule does not regulate an activity not regulated by the federal government. nor is it broader in scope or more stringent than federal regulations.

Idaho Code 3 67-5221(c) Fiscal Impact Statement: No negative impact occurs from this rulemaking; provision is not applicable.

Rulemaking and Public Comment Summary

- Page 1Temporary Rule [] Necessary to protect public health, safety or welfare [ ] Compliance with deadlines in amendments to governing law orfederal programs [ ] Conferring a benefit

Docket Number: 58-0101-0503

Section Existing Rule Summary I Temporary and/or Proposed Rule Summary Summary of Rule Changes Based on Public Comment Outstanding Issues

006 General Definitions. Definition of Best Available Control Technology deleted. Other definitions revised pursuant to H230 and S1228. The definition of Modification at Subsection 006.56 has been revised. The sponsors of H230 and its trailer bill, S1228, acknowledged and agreed that the legislation did not alter the state's existing state only toxic air pollutant program. In revising the definition of Regulated Air Pollutant as a result ofthe legislation, and in revising the definition of Modification to make the state's minor permitting program consistent with the major program, the state only toxic air pollutant review was inadvertently removed. Proposed Subsection 006.56.b clarifies the intent of H230 and S1228 and ensures the state only toxic air pollutant program continues to operate as it has since inception.

The remaining sections of proposed rule have not been revised. See attached Response to Comments. None.

007 Definitions forthe Purposes of Sections 200 through 228 and 400 through 461. Definition of Reasonable Further Progress revised by deleting the word "regulated" before the phrase "air pollutant." 008 Definitions for the Purposes of Sections 300 through 386. Definition of Major Facility revised by deleting incorrect internal cross-reference citation. 133 Startup, Shutdown and Scheduled Maintenance Requirements. Subsection 133.02.b revised by deleting reference to "regulated air pollutant" and replacing with "emissions." 134 Upset, Breakdown and Safety Requirements. Subsection 134.04.b revised by deleting reference to "regulated air pollutant" and replacing with "emissions." 135 Excess Emissions Reports. Subsection 135.02.d revised by deleting reference to "regulated air pollutant" and replacing with "emissions." 155 Circumvention. Revised Section 155 by deleting reference to "regulated air pollutant" and replacing with "emissions." 213 Pre-permit Construction. Revised Subsection 213.01.c by adding "and toxic air pollutants" after "regulated air pollutants."

Rulemaking and Public Comment Summary

- Page 2Docket Number: 58-0101-0503

Section Existing Rule Summary Temporary and/or Proposed Rule Summary Summary of Rule Changes Based on Public Comment Outstanding Issues



### 220 General Exemption Criteria for Permit to Construct Exemptions. Revised Subsection 220.01 by adding the following sentence: For purposes ofSections 220 through 223, fugitive emissions shall not be considered in determining whether a source meets the applicable exemption criteria unless required by federal law. 

### 440 Requirements forAlternative Emission Limits (Bubbles). Section 440 revised by deleting the word "regulated" before the phrase "air pollutant." 

### 441 Demonstration ofAmbient Equivalence. Section 441 revised by deleting the word "regulated" before the phrase "air pollutant." 

### 460 Requirements for Emission Reduction Credit. Section 460 revised by deleting the word "regulated" before the phrase "air pollutant." 

### 511 Applicability

. Section 511 revised by adding "or toxic" between the words "regulated" and "air pollutant." 

### 512 Definitions. For the purposes of Sections 500 through 516. Section 512 revised by adding "or toxic" between the words "regulated" and "air pollutant." 

### 513 Requirements. Section 513 revised by adding "or toxic" between the words "regulated" and "air pollutant." 

### 560 Notification to Sources. Section 560 revised by replacing the word "regulated" with "the applicable" air pollutants. 

### 561 General Rules. Subsection 561.04.d revised by replacing the word "regulated" with "the applicable" air pollutants. 

### 575 Air Quality Standards and Area Classification. Section 575 revised by deleting the phrase "of regulated air pollutants." 

### 581 Prevention of Significant Deterioration (PSD) Increments. Subsection 581.03.dJ revised by replacing the words "regulated air" with "the applicable" pollutant.

Rulemaking and Public Comment Summary

- Page 3Docket Number: 58-0101-0503

Section Existing Rule Summary Temporary and/or Proposed Rule Summary Summary of Rule Changes Based on Public Comment Outstanding Issues



### 679 Averaging Period. Subsection 679.02 revised by replacing the phrase "regulated air pollutants" with "particulate matter."

DEQ'S RESPONSE TO COMMENTS

Commenter: Advocates forthe West
- submittedon behalfof Idaho Conservation League OCL}

Comment 1: The legislative process to adopt H230 and S1228 did not comply with Clean Air Act requirement 40 CFR Part 51.102 for SIP revisions. "DEO's issuance ofthese rules is nothing more than a ministerial action incumbent upon the agency per H230 and S1228; and the public comment period provided for these proposed rules is a pro forma exercise which cannot possibly result in a substantive change in the rules. Nor can DEO's comment period correct the state's violations of40 CFR 

### § 51.102." Response: DEQ followed appropriate and lawfulprocedures in developing this rule. Docket 58-0101-0503 was a negotiated rule with ample ability forpublic input, including a negotiated rule making meetings held on May 10, 2005 and May 31, 2005. Meetings were noticed in the administrative bulletin as required bystate procedure and via e-mail to ICL andAdvocates of the West, among many others. This rule complies with all the state procedures, including a September7, 2005 hearing which was noticed on July 1,2005, and requirements as outlined in 40 CFR 51.102.

Comment 2: Substantive impact of H230 and S1228 results in inadequate authority to ensure maintenance of the NMOS.

Comment 

### 2a. Dust from animal operations. Currently DEO has authority to require feedlots to obtain permits to construct (PTC) and thus provide assurance that dust management plans are in place. As a result of H230 and S1228, this authority is stripped from DEO and they now only have "after the fact" authorities under 650-651. Response: A permitto constructis notrequired to ensure compliance with the requirement to reasonably control fugitive dust. Sections 650 and651 are stand alone, state implementation plan (SIP) approved, legal requirements. DEQ brought an enforcementaction against

### a feedlot ownerfor failure to reasonably control fugitive dust in violation ofIDAPA 58.01.01.650-651. The feedlot ownerentered into 

### a consent orderand corrected the violations using bestmanagementpractices to reasonably control fugitive dust. DEQ did notrequire, and the ownerdid not obtain, an airqualitypermit. Ensuring compliance with Sections 650 and 651 is not an afterthe fact authority. Compliance is required atall times, even during construction ofthe feedlot itself. DEQ's authority to ensure dust from animaloperations is reasonably controlled and, therebymaintenance ofthe nationalambient airqualitystandards (NAAQS), has notbeen stripped from DEQ.

Comment 2b. Ammonia from animal operations. H230 and S1228 eliminate DEO's authority to regulate ammonia emissions under the PTC program to ensure applicable NMOS are not violated.

Rulemaking and Public Comment Summary

- Page 4

### Response: The PTCprogram is but one tool used to ensure the 

### state's airquality

### meets, orstays below, the NAAQS. DEQ's ongoing rulemaking fordairies 

### uses bestmanagementpractices to controlammonia emissions, similar to control offugitive dust emissions from feedlots. On 

### a federal level, EPA is currently working with owners andoperators ofvarious types andsizes ofCAFOs 

### to develop emissions information. Upon completion, 

### a federalprogram will likelybe developed. Additionally, ifEPA identifies ammonia to be 

### a precursorto PM2.5 forpermittingpurposes, then ammonia will become 

### a regulated newsource review (NSR) pollutant forattainmentandnonattainment

### areas. See 40 CFR 52.21(b)(50)(i) and

### 51. 165(a)(1)xxxvii.


### Comment 

### 3: H230 and S1228 constitute backsliding and will violate the requirements under the Treasure Valley Maintenance Plan and other non-attainment and maintenance plans. 

### Response: The rules promulgatedpursuant to H230 and

### S1228 clarifyhow the definition ofregulated airpollutant fits in, andis applied to, various Clean AirAct permitprograms. In addition, these rules require DEQ to ensure treatment offugitive emissions forpermitapplicability determinations 

### is consistent with the Clean AirAct. The various state maintenance plans conform to Clean AirActrequirements. Clarifying Clean AirAct definitions andapplicabilitydeterminations 

### does not result in 

### a violation of

### a plan written pursuant to Clean AirActrequirements.



### Rulemaking and Public Comment Summary

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