Received 

STATE OF IDAHO SEP 282009 

DEPARTMENT OF 

ENVIRONMENTAL QUALITY office Of Air,.\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 how fugitive emissions will be treated in its minor NSR program: 

The intent ofIdaho'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, and 52.21) to be included when making major source or modification permit to 

construct PSD and NSR applicability determinations. 

Idaho's rules require any new source or modification, major or minor, to obtain a permit 

NSR 

to 

exemption 

223. 

in 

construct 

determining 

programs. 

To maintain 

only 

(201) 

whether 

for 

program 

unless 

those 

a 

sources 

it 

new 

qualifies 

consistency, 

source 

specifically 

for 

or 

an 

modification 

Idaho 

exemption 

required 

requires 

qualifies 

in 

to 

fugitive 

accordance 

include 

for 

emissions 

them 

a permit 

with 

in the 

Sections 

to 

to 

PSD 

be 

construct 

included 

and 

220­

Once it has been determined that a source (major or minor) reqUires a permit to 


construct, the applicant must provide information (for both fugitive andpoint source 


emissions) : 


o 	 Regarding the nature and amount ofemissions (including secondary emissions); 

o 	 Regarding the manner in which it will be operated and controlled; 

o 	 Demonstrating the stationary source or modification would comply with all 

applicable local, state or federal emission standards; and 
o 	 Demonstrating the stationary source or modification would not cause or 

significantly contribute to a violation ofany ambient air quality standard 

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 if you need any additional information. 

Sincerely, 

7J/~'~ Martin Bauer 

Administrator 

Air Quality Division 
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~----------------------------------------------------------1---

Department of Environmental Quality 

PUBLIC HEARING ON Docket No. 

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 

TUCKER 


andASSOCIATES. 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 Beef Co. 


RICK STOTT 


For Idaho Cattle Association 


LLOYD KNIGHT 

EXHIBITS 


EXHIBIT: PAGE: 

A Comments by Idaho Association of Commerce and Industry 10 


B Comments by Idaho Conservation League 16 


C Sign-In Roster 16 

Public Hearing on Proposed Revision 12/5/2005 

Page 1 

Department of Environmental Quality 

PUBLIC HEARING ON ) Docket No. 

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 1109 

11 

12 

13 

For Givens Pursley, LLP 

BILL EDDIE 

14 115 

HUGH O'RIORDAN i 16 

17 

118 For Agri Beef Co. 19 

120 RICKSTOTI I 21 

122 

For Idaho Cattle Association I 23 124 

LLOYD KNIGHT I 25 

Page 3 

EXIDBITS 

EXIDBIT: 

PAGE: 

A Comments by Idaho Association ofCommerce and IndustlO 

B Comments by Idaho 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. It is 3:02 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 of this hearing appeared in the 

Idaho Administrative Bulletin on November 2nd, 

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. 

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 on Proposed Revision 12/5/2005 

Page 5 Page 7 

1 Officer, ladies and gentlemen, my name is 1 of opposing 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 of this hearing is to 4 Idaho code which limit the Idaho Board of 

5 gather public comments on a proposed 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 of the 8 statement of explanation be part of any rule 

9 Environmental Protection and Health Act pursuant 9 promUlgated by the Board of Environmental Quality, 

10 to House Bill 230 and its trailer bill, 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 of this court action was to 

15 pollutant" as it applies to the various Clean Air 15 unnecessarily increase the workload ofDEQ and 

16 Act programs 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 permit backlog. Adding additional 

22 the Board of Environmental Quality on November 17 22 requirements would add unneeded delays to this 

23 2005 and will become final and effective upon 123 program just like in the past. The legislature 

24 adjournment of the 2006 legislative session if 24 had good reason to pass the legislation. 

25 approved by the legislature. Thank you. 125 One of the main changes brought about .-----~,-~--,-,-,-.----~ p~;;-~T------"-------------'-'- Page 8 

1 HEARING OFFICER: Thank you, Paula. We'll I 1 by the 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: Your Honor, 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 of regulation by requiring DEQ to 

8 organization represents businesses and business 8 develop fugitive emission rules that match federal 

9 associations of all types and all sizes from 9 law. 

10 throughout Idaho. Many of our members are 10 Other parts of the bill referred to 


11 regulated under the Idaho and federal air quality 111 specific sections of the federal Clean Air Act and 


12 statutes and regulations. 112 required that state air rules have the same 


13 As mentioned in the official j 13 requirements and meaning as those rules. House


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 of the 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 of the 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 of Environmental Quality to provide 

23 the Idaho air rules in a manner that exceeded 123 technical clarifications to portions of House 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 of Representatives 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 of 60 to nothing. 

2 Finally, just a few weeks ago, the 

3 Board ofEnvironmental Quality adopted rules to 

4 implement the above-mentioned legislation. 

5 Interestingly, the final version of the docket 

6 included an amendment made at the request of the 

7 federal Environmental Protection Agency. 

8 Because of the 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 Implementation Plan. 

17 IACI strongly supports these revisions 

18 to the state SIP. The result 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 of the record. 

2 HEARING OFFICER: Mr. Rush's written 

3 comments will be admitted as Exhibit A. 

4 (Exhibit A marked.) 

5 HEARING OFFICER: Mr. Eddie. 

6 MR. EDDIE: Thank you. My name is 

7 Bill Eddie. I'm here on behalf of Idaho 

8 Conservation League. I'm an attorney representing 

9 them. I previously provided written comments in 

10 this docket. I believe it's the same docket. I 

11 provided them September 7,2005. I have another 

12 copy for the record if that'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'll just walk through our major 

17 points of concern. 

18 We appreciate DEQ convening this 

19 hearing, but as we laid out in our comments and as 

20 I've laid out to the Board of Environmental 

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 of a SIP revision. 

4 And while I agree that we've come half 

5 that way by having this hearing and other DEQ 

6 proceedings before submission of the SIP, adoption 

7 of this 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 of this 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 that DEQ will advocate for, lobby for an amendment 

16 or revision of House Bill 230 and Senate Bill 

17 1228. Because if DEQ 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 of the SIP . ..~~---~--~ 

Page 12 

1 Turning to the substantive comments, 

2 just I'll briefly walk through my written comments 

3 to make sure that the points are clear. The 

4 federal regulations require that DEQ make a 

5 demonstration and provide a basis for the SIP and 

6 basis for which its determination of which 

7 facilities will be regulated 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 of the SIP is the 

11 legislature'S determination that it should be a 

12 narrower group of facilities. 

13 It's not been a scientific approach, if 

14 you will, determining which facilities actually 

15 cause air quality concerns here in the Treasure 

16 Valley or around 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 of dust, caused 

24 exceedences of particulate matter standards for 

25 health. DEQ was, of course, able to take after3 (Pages 9 to 12) 

Tucker and Associates, Boise, Idaho, (208) 345-3704 

www.etucker.net 
Public Hearing on Proposed Revision 12/5/2005 

Page 13 Page 15 

1 the-fact authority enforcement action, which I 1 VOCs, if this SIP revision is submitted to EPA and 

2 hope has corrected the problem. But that feedlot 2 it's approved, we will be putting ourselves behind 

3 to my knowledge has never been subject to a permit 3 the curve and allowing the growing body of science 

4 to construct. And so therefore, there's no 4 to perhaps get ahead of us 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 if the SIP revision is 

7 fugitive source of dust or VOCs for that matter 7 approved, DEQ will have no authority to regulate 

8 from causing a violation of the NAAQS. 8 fugitive emissions of VOCs from livestock 

9 On the issue of ammonia, what we have 9 operations or any other fugitive source. 

10 is a rapidly developing both scientific suite of 10 And again, the final point we made in 

11 information and a growing regulation of ammonia 11 our comments was that we ask for a review by DEQ 

12 a precursor for PM-2.5. EPA this year has been 12 as to whether this SIP revision will constitute 

13 ruling out federal rules governing implementation 13 backsliding from the Treasure Valley Maintenance 

14 ofPM-2.5 standard both on a transportation 14 Plan for PMl 0 because the maintenance plan refers 

15 conformity basis and on a general implementation 15 to and I believe incorporates the Rules 200 of the 

16 basis for permitting situations. Both of those 16 SIP, which are the permit to construct 

17 officially designate ammonia as a precursor for 17 requirements. And if those rules are 

18 PM-2.5, albeit in certain situations. But the 18 substantially weakened or revised, I think you 

19 point is that the treatment of ammonia as a 19 have a backsliding issue. So we ask for that 

20 precursor is an emerging issue. 20 review to ensure that part of the Clean Air Act is 

21 And by submitting this SIP revision, 21 not violated. 

22 which will clearly take ammonia out of the 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 of the 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 in front of the 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 off the 

6 ourselves behind the curve. I think that's a 6 record a minute. 

7 mistake from a policy perspective. 7 (Discussion held off the record.) 

8 Clearly under the SIP as it's currently 8 HEARING OFFICER: Anybody else wish to 

9 drafted, DEQ has the authority to regulate 9 testify or retestify? Lisa? No? 

10 ammonia, not only from fugitive operations but 10 MS. KRONBERG: No. 

11 from point source operations. And my reading of 11 HEARING OFFICER: I think we will then go 

12 the SIP revision if it's been submitted to EPA and 12 back off the record and give it another 10 or 15 

13 approved is that that authority will disappear. 13 minutes and see if anyone 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 of scientific 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 Quality District adopted an 19 (Exhibit C marked.) 

20 emission factor for dairy emissions ofVOCs. 20 HEARING OFFICER: No other persons 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 of putting ourselves 23 (The hearing concluded at 3:35 p.m.) 

24 at least with the curve, ifnot ahead of the 24 -00000­

2S curve, on the growing scientific information on 25 

4 (Pages 13 to 16) 

Tucker and Associates, Boise, Idaho, (208) 345-3704 

www.etucker.net 
Public Hearing on Proposed Revision 12/5/2005 

Page 17 

A 

able 12:25 

above-mentioned 9:4 

Act 5:9,168:11 10:25 

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add 7:22 

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address 11:1812:18 

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administer 9: 19 

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adoption 11 :2,6 

advocate 11:15 

agency 5:78:219:7,11 

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13:2214:4,10 

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appeared 4: 11 16:21 

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applicability 5: 17 

applicable 13:24 

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appointed 4:5 

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approved5:25 14:13 15:2 

15:7 

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associations 6:9 

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___B__________ 

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bill 2:10 5:10,10,116:18 continues 11 :22 

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11:8,8,16,16 coordinator 5:3 

board 5:22 7:4,9 9:3 copy 9:25 10:12 

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body 14:1615:3 corrected 13:2 

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come 11:4 12:20 13:6 develop 5:14 8:8 

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concerns 11:1312:15,19 District 14:19 

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concluded 16:23 10:1016:1 

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14:20,21 15:8 

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exceed 7:12 

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exceedences 12:24 

exhibit 3:89:2210:3,4 

15:2416:3,4,18,19 

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existing 8:14 

expansion 8:7 

explanation 7:8 

extra 9:24 

facilities 7:1712:7,12,14 

fact 7:2 

factor 14:20 

far 10:23 

federal 5:18 6:11,24 7:2,6 

7:10,128:8,11,209:7 

9: I 0,20 10:25 12:4,18 

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feedlot 12:22 13:2,6 

feedlots 14:22 

field 8:6 

final 5:23 9:515:10 

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increase 7: 15,16 

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information 13: II 14: 17 

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issue 8:1513:9,2014:14 

15:19 

issuing 7: 13,19 

Tucker and Associates, Boise, Idaho, (208) 345-3704 

www.etucker.net 
Public Hearing on Proposed Revision 12/5/2005 

Page 18 

.J NAAQS 13:8 15:6 point 13:1914:11 15:10 regulate 14:4,9 15:7 session 5:246:17,21 8:19 

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Tucker and Associates, Boise, Idaho, (208) 345-3704 

www.etucker.net 
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Public Hearing on Proposed Revision 12/5/2005 

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REPORTER'S CERTIFICATE 


STATE OF IDAHO ) 

) 

County of Ada ) 

l; Patricia J. Terry! Court Reporter Pro Tempore! County of 

Ada! State of Idaho! hereby certify: 

That I am the reporter who took the proceedings had in the 

above-entitled action in machine shorthand and thereafter the same was 

reduced into typewriting under my direct supervision; and 

That the foregoing reporter's tanscript contains a fult true! 

and accurate record of the proceedings had in the above and foregoing 

cause! which was heard at Boise, Idaho. 

IN WITNESS WHEREOF, I have hereunto set my hand this 

1J!!day of ~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 of this 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 of the 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 of this 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 of the 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 by federal law. Pending Rule Docket No. 

58-0101-0503 contains the rule changes developed as a result of the legislation. The 

pending rule was adopted by the Board of Environmental Quality on November 17, 

2005 and will become final and effective upon adjournment of the 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 

For the record, my name is Dick Rush and I am Vice President for 

Natural Resources for the Idaho Association ofCommerce and 

Industry, IAC!. Our organization represents businesses and 

business associations of all types and sizes from throughout Idaho. 

Many of our members are regulated under the Idaho and Federal 

Air Quality Statutes and Regulations. 

As mentioned in the official announcement for this hearing, the 

purpose is to consider proposed SIP revisions resulting from 

legislation passed during the 2005 session ofthe Idaho Legislature, 

known as H230 and S 1228. 

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 of opposing environmental 

rules more stringent than Federal requirements. In fact, there are 

currently seven statutes in Idaho code, which limit the Idaho Board 

of Environmental Quality from adopting rules more stringent than 

federal requirements. Further, the state requires that a statement of 

explanation be part of any rule pronlulgated by the Board of 

Environmental Quality, more stringent than federal law . 

And yet, 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 permit backlog. 

Adding additional requirements would add unneeded delays in this 

program - just like in the past. The legislature had good reason to 

pass the legislation. 

One of the main changes brought about by the court decision was a 

requirement to include "fugitive" emissions in the permit process. 

Fugitive means those emissions that are not emitted from a stack, 

and include construction dust, mining dust, dirt roads, livestock 

operations and field tilling. 

H230 repaired this expansion ofregulation by requiring DEQ to 

develop fugitive emission rules that match federal law . 

Other parts ofthe bill referred to specific sections ofthe federal 

clean air act, and required that state air rules have the same 

requirements and meaning as those rules. 

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

allowed DEQ to issue air permits 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 of Enviromnental Quality to 

provide technical clarifications to portions ofH230. S1228 passed 

the Idaho Senate by a vote of 28-8 and the Idaho House of 

Representatives by a vote of 66-0. 
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 of the federal Environmental 

Protection Agency. 

Because of the close working relationship between the Idaho 

Department ofEnvironmental Quality and the federal 

Environmental Protection Agency during the drafting of legislation 

during the 2005 legislative session, and in writing the rules to 

implement the legislation, there is no reason to believe that EPA 

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 

Paula Wilson 


DEQ State Office 


1410 N. Hilton 


Boise, Idaho 83706 


Re: DEQ Rulemaking Docket 58-0 I 01-0503 (Rules implementing H230 and 

S1228) 

Dear Ms. Wilson: 

These comments are submitted on behalfof Idaho 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 clean water, wilderness and quality of life. Its 

community conservation program works to protect community health, clean water and 

clean air. ICL's 3300 members work, live and recreate throughout the entire state of 

Idaho. ICL has a direct interest in this rulemaking docket because it implements laws 

that have weakened air quality protections, and therefore pose a threat to the health of 

ICL members, as well as to the ability ofICL and its members to protect public health 

and the environment from air pollution. 

Unlawful Procedure 

The Clean Air Act and its implementing regulations 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 "reasonable notice" means that at 

least "30 days prior to the date of such hearing" the State must display a "prominent 

advertisement in the area affected announcing the date, time and place ofthe hearing," 

among other notice and recordkeeping requirements, such as notice to 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 Conservation League v. Boer, 362 F.Supp. 2d 1211 (D.Idaho 2004). That decision 

inspired the lda40 Association ofCommerce and Industry (lACI) to draft and lobby the . 

legislature to adopt significant changes to Idaho's air quality program. The IACI bill 

first emerged as H230 witWn the House.8tate Affairs committee for printing on February 

16,2005. On February 24,2005, the House Environment, Energy and Technology 

Committee held a hearing and recommended passage ofH230. 

At some point in the process, lACI then drafted and sought passage of a "trailer bill" (SB 

1228) to significantly modify H230 by adding a definition of "regulated air pollutant" to 

P.O. Box 1612, Boise.ID 8370 I 208-342-7024 Fax: 208-342"8286 www.AdvocatesWest.org 
ICL Comments on H230/S1228 Implementation 

Page 2 of6 

include the federal list of hazardous air pollutants. The ftrst public mention ofS1228 of 

which ICL is aware occurred on March 16,2005, at the Senate Health and Welfare 

Committee hearing. Even at that committee meeting, IACI spokesman Dick Rush did not 

have an offtcial "RS" draft ofthe trailer bill 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), but the minutes reflect that this print hearing was not even 

on the Committee's agenda for that day. The very next day (March 22, 2005), at the 

Senate Health and Welfare Committee hearing on S1228, the Committee chair allowed 

IACI to present the bill, but then immediately called a vote on the bill without any 

opportunity for public comment. The Governor ultimately signed the H230/S 1228 

package on April 6, 2005. 

Of course, in this rushed process to adopt H230 and S 1228, 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-day notice (or no 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 S 1228 on the air program or air quality. DEQ's comments at 

committee meetings were very limited, and generally made in response to questions from 

legislators. 

This haphazard process signiftcantly prejudiced ICL's interests and the interests of its 

members. One ofICL's fundamental purposes is to inform its members around the state 

ofimportant changes in policy that might impact their health and enjoyment of their 

property, and to facilitate citizen involvement in those changes. ICL's goals in that 

regard parallel the intent of the Clean Air Act's regulations requiring healthy public 

participation for SIP revisions. . 

Because ofthe inadequate notice and information provided for H230 and SI228, ICL was 

unable to provide adequa.te information to its members on what the impact ofthe bills on 

the overall air program might be, when the bills would be considered at committee 

meetings, to whom written comments should be directed to, and whether oral comments 

would even be re~eived by the committees. For S1228, the public was essentially in the 

dark on the hill's very. language until the day before it was taken up the Senate Health 

and Welfare Committee; and then that the Committee took no public comment at all. 

This political process may be the ordinary course of affairs for other changes in state law. 

But it surely is not the ordinary or legal course for adopting a change in a SIP. 

F or present purposes, ICL is submitting these comments to protect its right to appeal and 

seek judicial review ofthe proposed rule changes. However, we recognize that H230 and 

S 1228 accord DEQ no discretion to make any changes to any of the substantive 

provisions in those new provisions ofIdaho Code, nor to the regulations now proposed to 

implement them. For example, even if a team ofNobel prize winning scientists were to 

submit highly persuasive, science-backed comments in this docket stating, for example, 

that fugitive emissions of volatile organic compounds should be counted toward 

applicability determinations fOf permitting purposes so as to protect human health, DEQ 
ICL Comments on H230/S1228 Implementation 

Page 3 of6 

would be powerless to change the fact that H230 and S 1228 demand such emissions be 

excluded. 

In short, these changes were adopted and fixed when the governor signed H230 and 

S1228. DEQ's issuance of these 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 DEQ's comment period correct the State's 

violations of40 C.F.R. § 51.102. 

Inadequate Authority To Ensure Maintenance Of NAAQS 

ICL has the following comments on the substantive impact ofH230 and S1228, although 

we recognize 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 standard that it implements." 40 C.F.R. § 

51.112( a). The State also is required to justify the application of its "legally enforceable 

procedures" for reviewing new sources: 

These procedures must identify types and sizes of facilities, building, 

structures, or installations which will be subject to review under this section. 

The plan must discuss the basis for determinmg which facilities will be 

subject to 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 Sunnyside Feedlot precisely because air quality data collected 

near the feedlot showed particulate levels of approximately "twice the level of federal 

health-based standards." DEQ News Release (4/22/04). Unfortunately, excessive dust 

from feedlot operation~ is a common problem in many parts ofthe state. 

Under the current SIP, DEQ has the authority to require feedlots to obtain permits to 

construct, and thus provide assurance that dust management plans are in-place. Yet after 

H230 and S 1228, that authority will be stripped from DEQ. DEQ will have only the 

limited, after-the-fact enforcement authorities provided at Rules 650 and 651 of the Idaho 

Air Rules and the Idaho Protection and Health Act. As demonstrated in the Matthews 

case, such after-the-fact authorities are grossly inadequate, s!nce they alloweq the public 

to be exposed to levels ofparticulates at double the health-based standard. 

Because there will be no SIP-based permitting for fugitive dust sources (except in the rare 

case where federal law requires it), DEQ will not be able to require fugitive dust 
I 

1 

ICL Comments on H230/S1228 Implementation 

Page 4 of6 

management plans at the construction or operation stage to prevent feedlots and similar 

fugitive sources of dust from causing exceedances ofNAAQS. Rather DEQ will only be 

able to take enforcement action after such exceedances have already occurred. The new 

SJP, if approved by EPA, will be inadequate to ensure new and existing sources of 

fugitive dust do not cause exceedances ofNAAQS. 

Ammonia From Animal Operations 

In rules governing transportation conformity issues, EPA recently formally recognized 

ammonia as a precursor to PM-2.S production. 70 Fed.Reg. 24,280 (May 6, 200S). This 

rule requires consideration of ammonia in PM-2.S SIPs (for nonattainment and 

maintenance areas) in areas where on-road emissions ofamnionia are a significant 

contributor to PM-2.5 production. It is reasonable to anticipate ammonia will be treated 

as a precursor in the forthcoming PM-2.S NAAQS implementation rule. 

As DEQ is aware, ammonia plays a significant factor in episodes of high PM-2.S levels 

in the TreasUre Valley: . 

Oxides of nitrogen, sulfur dioxide, and ammonia are precursors, or 

ingredients, of secondary particulate matter. Ammonia gas forms 

ammonium nitrate particulate matter when it reacts with nitric acid in the· 

air. Ammonia gas forms ammonium sulfate particulate matter when it 

reacts with sulfuric acid in the air. On the most polluted days, 

approximately 48% of PM2.5 is made up ofammonium nitrate and 

ammonia sulfate. 

DEQ research indicates that other "ingredients" (NOx and S02), or 

precursor~, are less abundant than ammonia in the Treasure Valley, and 

therefore limit the formation of secondary particulates. 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 of the other 

precursors. 

Idaho DEQ, Treasure Valley Air Quality Issues: Ammonia. Particulate Matter. and VOC 

Emissions at 5 (2003) (internal citations omitted). See also National Research Council, 

Air Emissions 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 milk cows can be measured with reasonable accuracy using the 

thresholds recently submitted to DEQ by ICL and the Independent Dairy Environmental 

Action League. The lowest emission rate for ammonia specified in the thresholds 

agreement was about 100 tons of ammonia per SOOO head (on drylot dairies ).Flush and 

scrape dairies have much higher ammonia emission rates. Even assuming (for illustrative 

purposes) that all Treasure Valley milk cattle are housed on drylots, their ammonia 
ICL Comments on H230/S1228 Implementation 

Page 5 of6 

emissions would total over 1,200 tons per year. Adding beef cattle ammonia emissions, 

even under ultra-conservative assumed emission factor of 20 pounds per head per 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 pollutant because it is a pollutant 

regulated under Section 112(r) of the Clean Air Act. DEQ therefore has ,the authority to 

regulate ammonia emissions from dairies and feedlots under the SIP's permit to 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 be part ofthe federally enforceable SIP 

at all. Therefore the new rules cannot make up for-this deficiency. The new SIP, if 

approved by EPA, will be inadequate to ensure new and existing sources of ammonia 

(fugitive or stack) do not cause exceedances ofNAAQS. 

VOCs From Animal Operations 

Emissions of volatile organic compounds ("VOC") from livestock operations are 

significant, and many such emissions are from fugitive sources. VOCs are a precursor to 

the formation of ozone. In the Treasure Valley, Idaho DEQ reports that air quality 

monitors in both Ada and Canyon Counties detected exceedances ofthe federal standards 

for ozone during summer 2002, noting: 

These exceedances raise the possibility of ozone and/or PM2.s nonattainment 

designation for the Treasure Valley. Moreover, continued degradation of air 

quality will jeopardize public health and could severely impact the economy 

and development of the 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 not aware ofthe [mal adoption of any emission factor for VOC 

emissions from beef cattle, such emissions surely are not zero. For conservative 

estimation, for beef cattle we will use the figure 6.8 pounds/head/year, which researchers 

at UC 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 

estimate noted above, beef cattle would also account for nearly 700 tons ofVOC 

emissions. Payette County recently approved a dairy of 11,000 animals, thus adding 

approximately 106 tons ofVOC emissions to the Treasure Valley airshed without any 

anal ysis or assessment of the impacts ofsuch emissions on our currently tenuous 

attainment status for ozone. 
! 

~ . j 

ICL Comments on H230/S1228 Implementation 

Page 6 of6 

DEQ presently can regulate dairies under the PTC program to ensure applicable NAAQS 

are not violated. The SIP changes adopted by H230 and S1228 will eliminate that 

authority. DEQ will have no authority to regulate new fugitive sources ofVOCs to 

ensure they do not cause violations ofNAAQS. The new SIP, if approved by EPA, 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 Valley Maintenance Plan and any other nonattainment 

or maintenance plan. For example, Section 6.6 of the Maintenance Plan specifically 

cites Rules 200 et seq. as part of the State's "Permitting Program to Ensure that New 

Sources will not Jeopardize Continued Maintenance." As set forth above, H230 and 

S1228 significantly reduce DEQ's authorities under Rules 200 et seq., and therefore its 

ability to regulate emissions of particulates and precursors to particulate formation. This 

change in law calls into question DEQ's ability to fulfill the Maintenance Plan and other 

obligations in maintenance and nonattainment areas. 

Conclusion 

Due to the procedural defects identified above, the proposed rules are not approvable by 

EPA as federally enforceable revisions to Idaho' State Implementation Plan. Moreover, 

the proposed rules strip DEQ of any meaningful authority to prevent exceedances of 

NAAQS for particulates and ozone caused by animal feeding operations and other 

fugitive sources ofparticulates, ammonia, and VOCs. 

William M. Eddie 

On behalf of Idaho 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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Docket Number: 58-0101-0503 

Effective Date: 2006 Sine die 

Rules Title: Rules for the Control of Air 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 of fugitive emissions. 

Revisions to the Rules for the Control of Air 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 of the 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 1 

Temporary Rule 	 [] Necessary to protect public health, safety or welfare 

[ ] Compliance with deadlines in amendments to governing law or federal 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 of the 

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 for the 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 2 

Docket 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 of Sections 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 for Alternative 

Emission Limits (Bubbles). 

Section 440 revised by deleting 

the word "regulated" before the 

phrase "air pollutant." 

441 Demonstration of Ambient 

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 3 

Docket 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 for the West - submitted on behalf ofIdaho 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 of these 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 of 40 CFR § 51.102." 

Response: DEQ followed appropriate and lawful procedures in developing this rule. Docket 58-0101-0503 was a negotiated rule with ample ability for public 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 by state 

procedure and via e-mail to ICL and Advocates ofthe West, among many others. This rule complies with all the state procedures, including a September 7, 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 permit to construct is not required to ensure compliance with the requirement to reasonably control fugitive dust. Sections 650 and 651 are stand 

alone, state implementation plan (SIP) approved, legal requirements. DEQ brought an enforcement action against a feedlot owner for failure to reasonably control 

fugitive dust in violation of IDAPA 58.01.01.650-651. The feedlot owner entered into a consent order and corrected the violations using best management practices 

to reasonably control fugitive dust. DEQ did not require, and the owner did not obtain, an air quality permit. Ensuring compliance with Sections 650 and 651 is not 

an after the fact authority. Compliance is required at all times, even during construction of the feedlot itself. DEQ's authority to ensure dust from animal operations 

is reasonably controlled and, thereby maintenance ofthe national ambient air quality standards (NAAQS), has not been 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 PTC program is but one tool used to ensure the state's air quality meets, or stays below, the NAAQS. DEQ's ongoing rulemaking for dairies uses 

best management practices to control ammonia emissions, similar to control of fugitive dust emissions from feedlots. On a federal level, EPA is currently working 

with owners and operators of various types and sizes of CAFOs to develop emissions information. Upon completion, a federal program will likely be developed. 

Additionally, if EPA identifies ammonia to be a precursor to PM2.5 for permitting purposes, then ammonia will become a regulated new source review (NSR) 

pollutant for attainment and nonattainment 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 promulgated pursuant to H230 and S1228 clarify how the definition ofregulated air pollutant fits in, and is applied to, various Clean Air Act 

permit programs. In addition, these rules require DEQ to ensure treatment offugitive emissions for permit applicability determinations is consistent with the Clean 

AirAct. The various state maintenance plans conform to Clean Air Act requirements. Clarifying Clean AirAct definitions and applicability determinations does not 

result in a violation ofa plan written pursuant to Clean AirAct requirements. 

Rulemaking and Public Comment Summary - Page 5