[Federal Register Volume 61, Number 117 (Monday, June 17, 1996)]
[Proposed Rules]
[Pages 30570-30575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15281]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5521-3 ]


Clean Air Act Proposed Interim Approval and in the Alternative 
Disapproval of Operating Permits Program, State of Idaho; Clean Air Act 
Proposed Delegation of National Emission Standards for Hazardous Air 
Pollutants as They Apply to Part 70 Sources and Approval of Streamlined 
Mechanism for Future Delegations, State of Idaho

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed action.

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SUMMARY: The EPA is reproposing action on two limited aspects of the 
Operating Permits Program submitted by the Idaho Division of 
Environmental Quality for the purpose of complying with Federal 
requirements for an approvable State program to issue operating permits 
to all major stationary sources and to certain other sources. The first 
element involves the changes EPA believes are necessary as a condition 
of full approval to the State's regulations dealing with general 
permits. The second element involves the effect of the State's 
environmental audit statute on the State's enforcement obligations 
under title V of the Clean Air Act.
    In addition, if EPA grants interim approval of Idaho's title V 
operating permits program, EPA proposes to delegate the National 
Emission Standards for Hazardous Air Pollutants (NESHAP) as adopted by 
the State and as they apply to part 70 sources. EPA also proposes to 
approve a streamlined mechanism for future NESHAP delegations.

DATES: Comments must be submitted by July 17, 1996.

ADDRESSES: Comments must be submitted to Elizabeth Waddell, at EPA 
Region 10, 1200 Sixth Avenue, M/D-108, Seattle, WA 98101. Copies of the 
State's submittal and other supporting information used in developing 
this proposed action are available for inspection during normal 
business hours at the following location: U.S. Environmental Protection 
Agency, Region 10, 1200 Sixth Avenue, Docket # 10V100, Seattle, 
Washington.

FOR FURTHER INFORMATION CONTACT: Elizabeth Waddell, 1200 Sixth Avenue, 
M/D-108, Seattle, WA 98101, (206) 553-4303.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

1. Title V
    Title V of the 1990 Clean Air Act Amendments (sections 501-507 of 
the Clean Air Act (``the Act'')), and implementing regulations at 40 
Code of Federal Regulations (CFR) Part 70 require that States develop 
and submit operating permits programs to EPA by November 15, 1993, and 
that EPA act to approve or disapprove each program within 1 year after 
receiving the submittal. The EPA's program review occurs pursuant to 
section 502 of the Act and the part 70 regulations, which together 
outline criteria for approval or disapproval. Where a program 
substantially, but not fully, meets the requirements of part 70, EPA 
may grant the program interim approval for a

[[Page 30571]]

period of up to 2 years. If EPA has not fully approved a program by 2 
years after the November 15, 1993 date, or by the end of an interim 
program, it must establish and implement a Federal program.
2. Section 112
    Section 112(l) of the Act established new, more stringent 
requirements upon a State or local agency that wishes to implement and 
enforce an air toxics program pursuant to section 112 of the Act. Prior 
to November 15, 1990, delegation of NESHAP regulations to the State and 
local agencies could occur without formal rulemaking by EPA. However, 
the new section 112(l) of the Act requires EPA to approve State and 
local toxics rules and programs under section 112 through formal notice 
and comment rulemaking. State and local air agencies that wish to 
implement and enforce a Federally-approved air toxic program must make 
a showing to EPA that they have adequate authorities and resources. 
Approval is granted by EPA through the authority contained in section 
112(l), and implemented through the Federal rule found in 40 CFR part 
63, subpart E if the Agency finds that: (1) the State or local program 
or rule is ``no less stringent'' than the corresponding Federal rule or 
program, (2) adequate authority and resources exist to implement the 
State or local program or rule, (3) the schedule for implementation and 
compliance is sufficiently expeditious, and (4) the State or local 
program or rule is otherwise in compliance with Federal guidance.
3. Prior Action on Idaho's Title V Submittal
    On October 27, 1995, EPA proposed disapproval of Idaho's operating 
permits program because of deficiencies in the State's provisions for 
excess emissions and administrative amendments. In the alternative, EPA 
proposed interim approval of Idaho's program provided Idaho revised its 
regulations to address these deficiencies and submitted the revisions 
to EPA before final action on Idaho's submittal. See 60 FR 54990. EPA 
also proposed to grant interim approval under section 112(l)(5) of the 
Act and 40 CFR 63.91 of Idaho's program for receiving delegation of 
section 112 standards that are unchanged from Federal standards as 
promulgated, but only as they apply to part 70 sources, if EPA granted 
interim approval to Idaho's title V program. The EPA received a single 
letter of public comment on the proposal. The commenter disagreed with 
EPA's proposal to approve Idaho's program only for sources located 
outside the exterior boundaries of Indian Reservations and with EPA's 
failure to grant full approval to Idaho's insignificant activities 
list. In addition, Idaho has submitted program revisions addressing 
EPA's two proposed grounds for disapproving Idaho's program. Neither 
the comments submitted in response to the October 25, 1995, proposal 
nor the program revisions submitted by the State involve the two issues 
on which EPA is reproposing action in this notice. Accordingly, EPA 
will address the comment, any additional comments it receives in 
response to this reproposal and the effect of the State's program 
revisions when EPA takes final action after the close of the public 
comment period on this notice.

II. Discussion

A. Reconsideration of General Permit Requirements

    In the October 27, 1995, Federal Register notice proposing action 
on Idaho's title V submission, EPA identified four deficiencies in 
Idaho's general permitting regulations which EPA believed must be 
addressed as a condition of full approval. See 60 FR 54990 (October 27, 
1995). One such deficiency identified by EPA was that the Idaho 
Administrative Procedures Act (IDAPA) 16.01.01.335.05 states that 
issuance of authorization to operate under a general operating permit 
is a final agency action for purposes of administrative and judicial 
review of the authorization. EPA stated that this provision was in 
conflict with the requirements of 40 CFR 70.6(d)(2), which allows a 
permitting authority to grant a source's request for authorization to 
operate under a general permit without repeating the public 
participation procedures, but provides that such grant shall not be 
final agency action for purposes of judicial review. Upon further 
reflection, EPA believes that part 70 does not prevent a permitting 
authority from subjecting a decision to grant or deny a general permit 
to judicial review, but instead merely states that a permitting 
authority is not required to make such a decision subject to judicial 
review. In this respect, the Idaho program does not conflict with the 
requirements of part 70, but instead merely requires more public 
participation than required by part 70. Accordingly, EPA believes the 
Idaho program does not conflict with the requirements of part 70 by 
subjecting to administrative and judicial review the State's decision 
that a particular source meets or fails to meet the applicability 
requirements for a general permit. EPA therefore proposes that Idaho 
not be required to eliminate this provision as a condition of full 
approval.

B. Idaho's Environmental Audit Statute

    The Clean Air Act sets forth the minimum elements required for 
approval of a State operating permits program, including the 
requirement that the permitting authority has adequate authority to 
assure that sources comply with all applicable CAA requirements as well 
as authority to enforce permits through recovery of minimum civil 
penalties and appropriate criminal penalties. Section 502(b)(5) (A) and 
(E) of the CAA. EPA's implementing regulations, which further specify 
the required minimum elements of State operating permits programs (40 
CFR part 70), explicitly require States to have certain enforcement 
authorities, including authority to seek injunctive relief to enjoin a 
violation, to bring suit to restrain violations imposing an imminent 
and substantial endangerment to public health or welfare, and to 
recover appropriate criminal and civil penalties. 40 CFR 70.11. In 
addition, section 113(e) of the Clean Air Act sets forth penalty 
factors for EPA or a court to consider for assessing penalties for 
civil and criminal violations of title V permits. EPA is concerned 
about the potential impact of some State privilege and immunity laws on 
the ability of such States to enforce federal requirements, including 
those under title V of the Clean Air Act. Based on review and 
consideration of the statutory and regulatory provisions discussed 
above, EPA issued guidance on April 5, 1996, entitled, ``Effect of 
Audit Immunity/Privilege Laws on States' Ability to Enforce Title V 
Requirements'' to address these concerns. This guidance outlines 
certain elements of State audit immunity and privilege laws which, in 
EPA's view, may so hamper the State's ability to enforce as to preclude 
approval the State's title V operating permits program.
    In the October 27, 1995, Federal Register notice proposing action 
on Idaho's title V submission, which was published prior to issuance of 
the April 5, 1996, guidance, EPA discussed the impact of Idaho's 
environmental audit statute, Idaho Code Title 9, Chapter 8, on the 
approvability of Idaho's title V operating permits program. EPA 
expressed concern with two aspects of Idaho's environmental audit 
statute. See 60 FR 55000. First, EPA was concerned with the provision 
prohibiting the State from compelling a source, with certain limited 
exceptions, to provide the State

[[Page 30572]]

a report that meets the definition of an ``environmental audit report'' 
(referred to here as the ``audit privilege''). See Idaho Code 9-804 to 
-807. Although EPA was concerned that the audit privilege could be used 
to shield bad actors and frustrate access to crucial factual 
information, however, EPA stated it did not believe that Idaho's audit 
privilege posed a bar to full title V approval. Second, EPA was 
concerned with the provision which grants a source immunity from civil 
or criminal liability for any violations voluntarily disclosed by the 
source to the State in an environmental audit report (referred to here 
as the ``audit immunity provision''). See Idaho Code 9-809. EPA stated 
that the audit immunity provision of the Idaho environmental audit 
statute appeared to impermissibly interfere with the requirement that 
States have authority to collect a penalty for each day of violation. 
Therefore, EPA proposed to require, as a condition of full approval, 
that Idaho eliminate the audit immunity provision of Idaho Code 9-809 
or demonstrate to EPA's satisfaction that the provision does not 
impermissibly interfere with the enforcement requirements of title V.
    Since publishing the October 27, 1995, proposal acting on Idaho's 
title V program, EPA has reviewed the audit immunity and audit 
privilege provisions of Idaho's audit immunity statute in light of the 
April 5, 1996, guidance. After further consideration of the enforcement 
requirements of title V and the Idaho environmental audit statute in 
light of this guidance, EPA believes that both the immunity and 
privilege provisions of the Idaho environmental audit statute deprive 
the State of Idaho of adequate authority to enforce the requirements of 
title V of the Clean Air Act. Accordingly, EPA proposes that Idaho be 
required to revise both the audit immunity and audit privilege 
provisions of its environmental audit statute or demonstrate to EPA's 
satisfaction that these provisions do not impermissibly impair the 
enforcement authorities required for full title V approval.
1. Audit Immunity Provision
    EPA continues to believe that the Idaho immunity statute (Idaho 
Code 9-809) impermissibly interferes with the enforcement requirements 
of title V and part 70. In addition, EPA has identified additional ways 
in which the Idaho audit immunity provision appears problematic. The 
Idaho statute provides that any person who makes a voluntary disclosure 
of an environmental audit report identifying circumstances that may 
constitute a violation of State environmental laws to the appropriate 
agency shall be immune from civil or criminal penalties or 
incarceration for the underlying associated acts. Idaho Code 9-809(1). 
This provision does contain some restrictions. First, the immunity does 
not apply to the extent the disclosure is required by law or a specific 
permit condition or order because such a disclosure is not considered 
``voluntary'' under the Idaho statute. Idaho Code 9-809(5). Because of 
the recordkeeping, reporting and compliance certification requirements 
of 40 CFR 70.6, which Idaho has adopted as part of its title V program 
(see IDAPA 16.01.01.322), the scope of the audit immunity should be 
greatly restricted with respect to title V sources in Idaho. Second, 
the immunity is not available if the person has committed ``serious 
violations that constitute a pattern of continuous or repeated 
violations of environmental laws, regulations, permit conditions, 
settlement agreements, consent orders, and were due to separate and 
distinct events giving rise to the violations within the three (3) year 
period prior to the date of the disclosure.'' Idaho Code 9-809(6). 
These restrictions do diminish the scope of the immunity to some 
extent. Nevertheless, the Idaho statute appears to bar prosecution of 
``knowing'' violations of title V requirements unless the source has 
previously and repeatedly violated the same requirements within the 
past three years. EPA believes, such a restriction on criminal penalty 
authority deprives the State of authority to recover ``appropriate'' 
penalties for criminal conduct, as required by section 502(b)(5)(E) of 
the Act and 40 CFR 70.11(a)(3)(ii), 70.11(a)(3)(iii) and 70.11(c). 
Moreover, the Idaho statute would preclude the assessment of civil 
penalties for violations voluntarily disclosed in an environmental 
audit even if the violations resulted in serious harm or risk of harm 
to the public or the environment or resulted in substantial economic 
benefit to the violator. Section 113(e) of the Clean Air Act requires 
EPA or the court to consider these factors in assessing penalties. To 
the extent the Idaho statute prevents consideration of these factors, 
EPA believes that Idaho does not have adequate authority to assess 
appropriate penalties as required by section 502(b)(5)(E) of the Clean 
Air Act and 40 CFR 70.11(c).
    In addition to the impermissible restrictions on criminal and civil 
penalties, EPA also believes that the Idaho immunity statute unduly 
interferes with the State's authority to issue emergency orders and 
seek injunctive relief. Title V requires a State to have clear 
authority to restrain or enjoin immediately activities that present an 
imminent and substantial endangerment to public health or welfare or 
the environment and to seek injunctive relief where necessary to stop a 
violation, correct noncompliance and prevent its recurrence. See 
section 502(b)(5)(E); 40 CFR 70.11(a) (1) and (2). The Idaho audit 
immunity provision could be interpreted to interfere with these 
requirements in two respects. First, Idaho Code 9-809(7) states that 
the audit immunity does not affect the authority of the State to 
require remedial action through a consent order or action in district 
court or to abate an imminent hazard ``[e]xcept as specifically 
provided,'' but the exception to the immunity provision also states 
that ``[a] person may, but is not required, to enter into a voluntary 
consent order with the environmental regulatory agency to achieve 
compliance.'' Idaho Code 9-809(5). This provision suggests that the 
State may be precluded from issuing a unilateral order or seeking a 
court order requiring a source to correct a violation on a specified 
schedule, at least where the violation does not involve an imminent 
hazard.
    Second, Idaho Code 9-809(3) states that ``where audit evidence 
shows the noncompliance to be the failure to obtain a permit or other 
governmental permission, appropriate efforts to correct the 
noncompliance may be demonstrated by the submittal of a permit 
application or equivalent document within a reasonable time.'' A source 
must generally demonstrate that it has achieved compliance within a 
reasonable period in order to demonstrate that an audit was voluntary 
and thus a basis for seeking immunity. See Idaho Code 9-809(2)(c). It 
is unclear, however, whether Idaho Code 9-809(3) was intended to allow 
a source to continue the unlawful activity for which a permit was 
required (for example, construction of a new major source without a 
permit) without being subject to penalty or other enforcement action or 
whether it was merely intended to give the source immunity for its past 
activities of constructing without a permit. As noted above, EPA 
believes that the Idaho audit immunity provision does not comport with 
the title V requirements for penalty authority to the extent it grants 
immunity for criminal violations and for civil violations resulting in 
serious harm or risk of harm or a substantial economic benefit. If 
Idaho Code 9-809(3) would also prevent the State from issuing or 
seeking an order

[[Page 30573]]

enjoining the violation (for example, an order halting construction), 
EPA believes that the Idaho law would also impermissibly interfere with 
the enforcement requirements of title V and part 70. In short, EPA 
believes that the effect of Idaho's audit immunity provision on the 
requirements of 40 CFR 70.11(a) (1) and (2) for emergency orders and 
injunctive relief is unclear and must be clarified by the State as a 
condition of full approval.
2. Audit Privilege
    The part 70 regulations governing program approval do not 
specifically address the scope of privileges available in State 
enforcement actions. Nonetheless, EPA believes that where a State 
adopts a very broad privilege law specifically directed at evidence 
related to environmental violations, that privilege could go so far as 
to render the overall State enforcement program inadequate even if 
other authorities are nominally available (such as injunctive relief 
and penalty authority). An excessively broad privilege could so 
interfere with the exercise of these nominal enforcement authorities as 
to render them meaningless by depriving the State of the ability to 
gather evidence needed to establish a violation.
    The Idaho audit privilege (Idaho Code 9-804 to -807) broadly 
prohibits the State from requiring a source to disclose an 
``environmental audit report,'' thus depriving the State of potentially 
important information for determining whether a source is in violation, 
whether a violation was knowing and whether the source took prompt 
action to correct the violation. The Idaho legislation does contain 
some restrictions on the scope of this privilege. Importantly, the law 
makes clear that ``[d]ocuments, data and other information which must 
be collected, developed and reported pursuant to federal and state law, 
rule and regulation must be disclosed in accordance with the applicable 
law, rule or regulation.'' Idaho Code 9-805; See also Idaho Code 9-807. 
Because of the recordkeeping, reporting and compliance certification 
requirements of 40 CFR 70.6, which Idaho has adopted as part of their 
title V program (see IDAPA 16.01.01.322), the scope of the audit 
privilege should be greatly restricted with respect to title V sources 
in Idaho. In addition, the audit privilege does not apply if an 
environmental agency or a court, after in camera review, determines 
that the environmental audit privilege is asserted for a fraudulent 
purpose or that the material sought to be withheld is not an 
appropriate subject for an environmental audit. Idaho Code 9-806(2). 
Nonetheless, where an audit produces evidence of noncompliance, the 
Idaho privilege would prevent the State from reviewing that evidence to 
determine whether the violation will be corrected and compliance 
assured. Similarly, where an audit reveals evidence of prior criminal 
conduct on the part of managers and employees, Idaho would be barred 
from obtaining and using such information. As a result, the State would 
be prevented from obtaining appropriate criminal penalties. In these 
respects, EPA believes that the Idaho audit privilege set forth in 
Idaho Code 9-804 to -807 is so broad so as to deprive the State of its 
ability to obtain appropriate criminal penalties and assure compliance, 
as required by section 502(b)(5)(E) of the Clean Air Act and 40 CFR 
70.11.

C. Proposed Action on Section 112(l) Submittal

    As stated above, the requirements for title V approval, specified 
in 40 CFR 70.4(b), encompass section 112(l)(5) requirements for 
approval of a State program for delegation of section 112 standards as 
promulgated by EPA as they apply to part 70 sources. Section 112(l)(5) 
requires that the State's program contain adequate authorities, 
adequate resources for implementation, and an expeditious compliance 
schedule, which are also requirements under part 70. On October 27, 
1995, EPA proposed to grant interim approval under Section 112(l)(5) of 
the Act and 40 CFR 63.91 of the State of Idaho's program for receiving 
delegation of 112 standards that are unchanged from Federal standards 
as promulgated but only as they apply to Part 70 sources, if EPA 
granted interim approval to Idaho's operating permits program.
    By letter dated December 14, 1995, Idaho also requested that EPA 
approve its use of the automatic delegation mechanism for delegation of 
future section 112 standards unchanged from the Federal standards as 
described in section 5.1.2.a of EPA's ``Interim Enabling Guidance for 
the Implementation of 40 CFR Part 63'', Subpart E, EPA-453/R-93-040, 
November 1993 (Subpart E Enabling Guidance). After reviewing Idaho's 
legal authorities, EPA has determined that Idaho does not meet the 
criteria set forth in the Subpart E Enabling Guidance to receive 
automatic delegation of future section 112 standards because it cannot 
immediately implement and enforce future section 112 standards without 
additional rulemaking at the State level.
    Although Idaho has the authority to include Federal standards in 
part 70 permits without adopting such standards by reference, the 
section 112 requirements for some part 70 sources will take effect (or 
already have taken effect) prior to the issuance of their part 70 
permits. To obtain approval of the delegation of section 112 standards, 
Idaho must be able to implement and enforce those standards upon 
approval and assure compliance by all sources within the State with 
each applicable regulation promulgated under section 112. EPA is 
therefore denying Idaho's request for automatic delegation as described 
by the State's December 14, 1995 letter.
    However, in IDAPA 16.01.107, Idaho has adopted by reference all 
Federal standards contained in 40 CFR part 61 and part 63 as in effect 
on April 1, 1994. In addition, Idaho has the authority to implement and 
enforce those 112 standards that it has adopted by reference. 
Therefore, if EPA grants interim approval to Idaho's operating permits 
program, EPA proposes to interimly delegate the section 112 standards 
contained in 40 CFR parts 61 and 63 which were in effect on April 1, 
1994, and as those rules apply to part 70 sources. Those standards 
consist of 40 CFR part 61, subparts A through F, H through R, V, W, Y, 
BB, and FF; and 40 CFR part 63, subparts A, D, L, and M. EPA would 
retain implementation and enforcement authority for these rules as they 
apply to non-part 70 sources. EPA recommends that by the time of final 
interim approval of this submittal, Idaho should adopt by reference 40 
CFR part 61 and 63 at least as in effect June 1, 1996, and continue to 
update its incorporation by reference as the federal 112 standards are 
revised and new Federal standards are issued.
    In addition, EPA proposes to approve the mechanism described in 
Section 5.1.2.b of the Subpart E Enabling Guidance for those Federal 
standards that Idaho adopts by reference unchanged, if EPA grants 
interim approval to Idaho's operating permits program. Using this 
streamlined approach, upon adoption of a NESHAP(s) by reference, Idaho 
will only need to send a letter of request to EPA. EPA would in turn 
respond to this request by sending a letter back to the State 
delegating the appropriate NESHAP(s) as requested. No further formal 
response from the State would be necessary at this point, and if a 
negative response from the State is not received within 10 days of this 
letter of delegation from EPA, the delegation would then become final.
    Although EPA is proposing to delegate authority to Idaho to enforce 
the NESHAP regulations as they apply

[[Page 30574]]

to part 70 sources, it is important to note that EPA will retain 
oversight authority for all sources subject to these federal CAA 
requirements. EPA has the authority and responsibility to enforce the 
Federal regulations in those situations where the State is unable to do 
so or fails to do so.

III. Proposed Action and Implications

    EPA is reopening the public comment on two conditions EPA proposed 
in the October 27, 1995, Federal Register notice (60 FR 54990) as 
conditions that Idaho must meet to obtain full approval of its 
operating permits program. First, upon further reflection, EPA believes 
that IDAPA 16.01.01.335.05, which states that issuance of authorization 
to operate under a general operating permit is a final agency action 
for purposes of administrative and judicial review of the 
authorization, does not conflict with the requirements of 40 CFR 
70.6(d)(2), but instead merely requires more public participation than 
required by part 70. If EPA takes final action on this proposal, 
condition ``n. General Permits'' of Section II.B.2 of the October 27, 
1995 Federal Register notice (60 FR 54997) would be revised to read as 
follows:

n. General Permits

    Idaho must revise its regulations authorizing general permits to 
be consistent with 40 CFR 70.6(d), including provisions requiring: 
(a) that if a permitting authority has issued a general permit, the 
authority must grant the conditions and terms of the general permit 
to sources that qualify; (b) specialized general permit applications 
meet the requirements of title V; and (c) that the State may take 
enforcement action for operation without a permit if the source is 
later determined not to qualify for the conditions and terms of the 
general permit.

    Second, EPA believes that Idaho's environmental audit privilege, as 
well as Idaho's environmental audit immunity provision, interfere with 
the enforcement requirements of title V and part 70 and must be revised 
or otherwise shown to be consistent with title V and part 70 
requirements. If EPA takes final action on this proposal, condition 
``aa. Environmental Audit Statute'' of Section II.B.2 of the October 
27, 1995 Federal Register notice (60 FR 54997) would be revised to read 
as follows:

aa. Environmental Audit Statute

    Idaho must revise both the immunity and audit provisions of the 
Idaho environmental audit statute, Idaho Code title 9, chapter 8, to 
ensure that it does not interfere with the requirements of section 
502(b)(E)(5) of the Clean Air Act and 40 CFR 70.11 for adequate 
authority to pursue appropriate criminal and civil penalties, issue 
emergency orders, obtain injunctive relief and otherwise assure 
compliance. In the alternative, Idaho must demonstrate to EPA's 
satisfaction that these required enforcement authorities are not 
impaired by Idaho's environmental audit statute.

    Also, if EPA grants interim approval of Idaho's operating permits 
program, in addition to approving the program submitted by the State of 
Idaho for the purpose of implementing and enforcing the hazardous air 
pollutant requirements under section 112 of the Clean Air Act, EPA 
proposes to delegate all federal NESHAPs adopted by the State, as they 
apply to part 70 sources and to approve the streamlined mechanism for 
delegation described in Section 5.1.2.b of the Subpart E Enabling 
Guidance.

IV. Administrative Requirements

A. Request for Public Comments

    EPA is requesting comments on the three issues addressed in this 
notice, namely, (1) conditioning full approval of the Idaho title V 
operating permits program on specified changes to Idaho's regulations 
addressing general permits (IDAPA 16.01.01.335); (2) conditioning full 
approval of the Idaho title V operating permits program on specified 
changes to Idaho's environmental audit statute (Idaho Code title 9, 
chapter 8) or a satisfactory explanation of why the statute does not 
interfere with title V enforcement requirements; and (3) EPA's proposal 
to delegate all federal NESHAPs adopted by the State, as they apply to 
part 70 sources and to approve the streamlined mechanism for delegation 
described in Section 5.1.2.b of the Subpart E Enabling Guidance. All 
other aspects of EPA's October 27, 1996 Federal Register notice (60 FR 
54990), including all other conditions on interim and full approval of 
Idaho's operating permits program, remain unchanged by this reproposal 
and are no longer open for public comment. Copies of the State's 
submittal and other information relied upon for this proposed action 
and notice are contained in a docket maintained at the EPA Regional 
Office. The docket is an organized and complete file of all the 
information submitted to, or otherwise considered by, EPA in the 
development of this proposed action. The principal purposes of the 
docket are:
    (1) to allow interested parties a means to identify and locate 
documents so that they can effectively participate in the approval 
process, and
    (2) to serve as the record in case of judicial review.
    The EPA will consider any comments received by July 17, 1996.

B. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.

C. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. Sec. 600 et. seq., 
EPA must prepare a regulatory flexibility analysis assessing the impact 
of any proposed or final rule on small entities. 5 U.S.C. Secs. 603 and 
604. Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    EPA actions under section 502 of the Act do not create any new 
requirements, but simply address operating permits programs submitted 
to satisfy the requirements of 40 CFR part 70. NESHAP rule or program 
delegations approved under the authority of section 112(l) of the Act 
also do not create any new requirements, but simply confer Federal 
authority for those requirements that the State of Idaho is already 
imposing. Because this action does not impose any new requirements, it 
does not have a significant impact on a substantial number of small 
entities.

D. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, EPA must prepare a budgetary impact 
statement to accompany any proposed or final rule that includes a 
Federal mandate that may result in estimated costs to State, local, or 
tribal governments in the aggregate; or to the private sector, of $100 
million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives 
of the rule and is consistent with statutory requirements. Section 203 
requires EPA to establish a plan for informing and advising any small 
governments that may be significantly or uniquely impacted by the rule.
    EPA has determined that the proposed approval action promulgated 
today does not include a federal mandate that may result in estimated 
costs of $100 million or more to either State, local, or tribal 
governments in the aggregate, or to the private sector. This Federal 
action approves pre-existing requirements under State or local, and 
imposes no new federal requirements. Accordingly, no additional costs 
to State, local, or tribal governments, or to the private sector, 
result from this action.

[[Page 30575]]

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements, Hazardous substances.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: June 6, 1996.
Phil Millam,
Acting Regional Administrator.
[FR Doc. 96-15281 Filed 6-14-96; 8:45 am]
BILLING CODE 6560-50-P