[Federal Register Volume 66, Number 156 (Monday, August 13, 2001)]
[Proposed Rules]
[Pages 42490-42496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20215]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[FRL-7031-7]
Clean Air Act Full Approval of Operating Permits Program in Idaho
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to fully approve the operating permits program
submitted by the State of Idaho. Idaho's operating permits program was
submitted in response to the directive in the Clean Air Act that
permitting authorities develop, and submit to EPA, programs for issuing
operating permits to all major stationary sources and to certain other
sources within the permitting authority's jurisdiction. EPA granted
interim approval to Idaho's air operating permits program on December
6, 1996. Idaho has revised its program to satisfy the conditions of the
interim approval and EPA therefore proposes to approve those revisions.
Idaho has also made several other changes to its program and EPA
proposes, with one exception, to approve these additional changes.
DATES: Comments on this proposal must be received in writing by
September 12, 2001.
ADDRESSES: Written comments should be addressed to Denise Baker,
Environmental Protection Specialist (OAQ-107), Office of Air Quality,
at the EPA Regional Office listed below. Copies of Idaho's submittal,
and other supporting information used in developing this action, are
available for inspection during normal business hours at the U.S.
Environmental Protection Agency, Region 10, 1200 Sixth Avenue, Seattle,
Washington, 98101. Interested persons wanting to examine these
documents should make an appointment with the appropriate office at
least 24 hours before the visiting day.
FOR FURTHER INFORMATION CONTACT: Denise Baker, Office of Air Quality
(OAQ-107), EPA, 1200 6th Avenue, Seattle, WA 98101, (206) 553-8087.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. What Is the Title V Air Operating Permits Program?
B. What Is the Status of Idaho's Title V Air Operating Permits
Program?
II. What Changes Has Idaho Made To Address the Interim Approval
Issues?
A. Applicability
B. Temporarily Exempt Sources
C. New Sources
D. Option To Obtain Permit
E. Fugitive Emissions
F. Insignificant Emission Units
G. Permit Content
H. Exemption From Applicable Requirements
I. Emission Trading
J. Alternative Emission Limits
K. Reporting of Permit Deviations
L. Acid Rain Provision
M. State-Only Enforceable Requirements
N. General Permits
O. Operational Flexibility
P. Off-Permit Provisions
Q. Permit Renewals
R. Completeness Determination
S. Administrative Amendments
T. Minor Permit Modifications
U. Group Processing of Minor Permit Modifications
V. Reopenings
W. Public Participation
X. Permits for Solid Waste Incineration Units
Y. Maximum Criminal Penalties
Z. False Statements and Tampering
AA. Environmental Audit Statue
BB. Correction of Typographical Errors and Cross-References
III. What Other Changes Has Idaho Made to its Program--Outside of
Addressing the Interim Approval Issues?
A. Designation of the Department of Environmental Quality
B. Recodification
C. Permit Fees
D. Permit Revision Procedures
E. Compliance Certification Requirements
F. Deferral of Minor Sources
IV. Proposed Final Action
V. Request for Public Comment
VI. Are There any Administrative Requirements that Apply to this
Action?
I. Background
A. What Is the Title V Air Operating Permits Program?
The Clean Air Act (CAA) Amendments of 1990 required all state and
local permitting authorities to develop operating permits programs that
meet certain Federal criteria. In implementing the operating permits
programs, the permitting authorities require certain sources of air
pollution to obtain permits that contain all applicable requirements
under the CAA. The focus of the operating permits program is to improve
enforcement by issuing each source a permit that consolidates all the
applicable CAA requirements into a Federally-enforceable document. By
consolidating all the applicable requirements for a source in a single
document, the source, the public, and regulators can more easily
determine what CAA requirements apply to the source and whether the
source is in compliance with those requirements.
Sources required to obtain operating permits under the title V
program include ``major'' sources of air pollution and certain other
sources specified in the CAA or in EPA's implementing regulations. For
example, all sources regulated under the acid rain program, regardless
of size, must obtain operating permits. Examples of major sources
include those that have the potential to emit 100 tons per year or more
of volatile organic compounds, carbon monoxide, lead, sulfur dioxide,
nitrogen oxides, or particulate matter; those that emit 10 tons per
year or more of any single hazardous air pollutant (specifically listed
under the CAA); or those that emit 25 tons per year or more of a
combination of hazardous air
[[Page 42491]]
pollutants (HAPs). In areas that are not meeting the National Ambient
Air Quality Standards for ozone, carbon monoxide, or particulate
matter, major sources are defined by the gravity of the nonattainment
classification. For example, in ozone nonattainment areas classified as
``serious,'' major sources include those with the potential to emit 50
tons per year or more of volatile organic compounds or nitrogen oxides.
B. What Is the Status of Idaho's Title V Air Operating Permits Program?
The State of Idaho (Idaho or State or IDEQ) originally submitted
its application for the title V air operating permits program to EPA in
1993. Where an operating permits program substantially, but not fully,
meets the criteria outlined in the implementing regulations codified in
40 Code of Federal Regulations (CFR) part 70, EPA is authorized to
grant interim approval contingent on the state revising its program to
correct the deficiencies. Because the operating permits program
originally submitted by Idaho in 1993 substantially, but not fully, met
the requirements of part 70, EPA granted interim approval to Idaho's
program in an action published on December 6, 1996 (61 FR 64622). The
interim approval notice identified the conditions that Idaho must meet
in order to receive full approval of its title V air operating permits
program.
This document describes the changes Idaho has made to its program
in response to the interim approval issues identified by EPA,
additional changes Idaho has made to its program since we granted
Idaho's program interim approval, and the action EPA proposes to take
in response to those changes.
II. What Changes Has Idaho Made To Address the Interim Approval
Issues?
On July 9, 1998, the State of Idaho sent a letter to EPA addressing
the interim approval issues, transmitting its revised title V statutes
and rules, and requesting full approval of Idaho's air operating
permits program. EPA received additional submittals from Idaho
addressing the interim approval issues and transmitting additional
changes in its statutes and rules on May 25, 1999, and March 15, 2001.
In these submittals, the State also discussed other changes it has made
to its operating permits program since it obtained interim approval and
requested approval of these changes. These changes include designating
the Idaho Division of Environmental Quality, which was the permit
issuing authority at the time of interim approval, as a State
Department, now entitled the Idaho Department of Environmental Quality
(IDEQ). These changes also include a renumbering and recodification of
all of Idaho's air quality regulations.
EPA has reviewed the program revisions submitted by the State of
Idaho and has determined that the Idaho program now qualifies for full
approval. This section describes the interim approval issues identified
by EPA in granting the Idaho program interim approval and the changes
Idaho has made to address those issues.\1\
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\1\ Where an IDEQ rule has simply been moved from Chapter 16 to
Chapter 58, but retains the same section number, this notice simply
cites to the current codification in Chapter 58. Where the section
number has also changed, this notice cites to both the section
number at the time Idaho received interim approval and the current
section number.
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A. Applicability
In granting Idaho interim approval, EPA stated that Idaho must
demonstrate that its program covers all sources required to be
permitted under part 70. First, EPA stated that Idaho must revise its
definition of ``major facility'' to delete the ``August 7, 1980''
limitation unless EPA had finalized its proposal to change the
definition of ``major source'' in the part 70 rules to include the
August 7, 1980, limitation. Second, EPA stated that Idaho must revise
the reference to ``fugitive emissions'' in the definition of ``major
facility'' (then codified at IDAPA 16.01.01.008.14.h.iii (1994)) to
refer instead to any ``air pollutant'' and must otherwise make any
changes needed to demonstrate that its program covers all required
sources. See 61 FR at 64632.
Idaho has addressed these issues. First, IDEQ has deleted the
``August 7, 1980'' limitation from its definition of ``major
facility,'' which is now codified at IDAPA 58.01.01.008.10.c.ii.
Second, IDEQ revised the definition of major facility so that fugitive
emissions from listed categories must be considered in determining if a
facility is major if those air pollutants are regulated by the
identified federal standards. The Idaho Attorney General's office has
confirmed that, with these changes, IDEQ has authority to issue
operating permits to all air pollution sources in Idaho that are
required to have title V operating permits under title V of the Clean
Air Act and the part 70 regulations.
B. Temporarily Exempt Sources
In granting Idaho interim approval, EPA stated that Idaho must
demonstrate that the application and permitting deadlines for Phase II
sources and sources with solid waste incineration units meet the
requirements of part 70. 61 FR at 64632. At the time of its original
program submittal, Idaho rules allowed the State to defer permitting
these sources and had a later permit application date for solid waste
incineration units. See 60 FR 54990, 54994 (October 27, 1995) (proposal
to grant interim approval to Idaho's operating permits program).
Idaho has revised its rules to make the permitting and application
deadlines for Phase II sources and sources with solid waste
incineration units consistent with the requirements of part 70. See
IDAPA 58.01.01.301.02.b; 58.01.01.313.b, -313.c, and -313.d.
C. New Sources
As a condition of full approval, EPA stated that Idaho must
demonstrate that all sources in Idaho applying for a title V permit for
the first time are required to submit a permit application within 12
months after becoming subject to title V. See 61 FR at 64632. Idaho's
rules now make clear that any source that becomes subject to title V
after May 1, 1994 (the effective date of Idaho's title V program) must
submit an application for a title V permit within 12 months after
becoming a title V source or commencing operation. See IDAPA
58.01.01.313.01.b.
D. Option To Obtain Permit
In granting Idaho interim approval, EPA stated that the Idaho
program must allow certain exempt sources to obtain a title V permit if
they so requested. See 61 FR at 64632. Idaho has revised its
regulations to include such a provision. See IDAPA 58.01.01.302.
E. Fugitive Emissions
As a condition of full approval, EPA stated that Idaho must address
the requirement of 40 CFR 70.3(d) that fugitive emissions from title V
sources be included in permit applications and permits in the same
manner as stack emissions regardless of whether the source category in
question is included in the list of sources contained in the definition
of major source. See 61 FR at 64632. IDEQ regulations now make clear
that fugitive emissions must be included in title V operating permit
applications and permits in the same manner as stack emissions. See
IDAPA 58.01.01.314.04.a. and 58.01.01.322. EPA is satisfied that
Idaho's action resolves this issue.
F. Insignificant Emission Units
In granting Idaho interim approval, EPA stated that Idaho must make
several changes in its provisions for ``insignificant emission units''
or ``IEUs.'' EPA stated that Idaho must
[[Page 42492]]
define by regulation or guidance the terms used in its regulations
addressing IEUs, provide documentation demonstrating that the units and
activities identified as IEUs are appropriately defined as
insignificant, assure that all activities that are defined as
insignificant based on size or production rate be listed in the permit
application, and remove any director's discretion provision that would
allow the State to determine that an activity not previously reviewed
by EPA is insignificant (except for clearly trivial activities). See 61
FR at 64632.
Idaho has better defined the terms used to implement its IEU
provisions, refined the list of units and activities that qualify as
IEUs, and provided additional documentation to support the list of
units and activities. See IDAPA 58.01.01.317.01. Idaho has also revised
its rules to clarify that all activities that are defined as
insignificant based on size or production rate must be listed in the
permit application. See IDAPA 58.01.01.317.01.a and -.b. Finally, Idaho
has deleted the director's discretion provision from its list of IEUs.
With these changes, EPA believes that Idaho's IEU provisions qualify
for full approval. In doing so, EPA notes that the part 70 provisions
and Idaho's rules provide only an exemption for IEUs from certain
permit application requirements, and not from permit content
requirements.
G. Permit Content
Idaho's rules previously stated that the permit must contain all
applicable requirements ``identified in the application at the time the
* * * permit is issued'' and must contain a permit term for every
applicable requirement ``identified in the application.'' See IDAPA
16.01.01.322.01 and -.03 (1994). In granting Idaho interim approval,
EPA stated that this restriction impermissibly relieved the permitting
authority from including in a permit applicable requirements that are
not identified in a permit application, contrary to the requirement of
40 CFR 70.6 that each permit contain all applicable requirements. See
61 FR 64632. Idaho has revised these provisions to clarify that IDEQ
can also include in the permit all applicable requirements ``determined
by the Department to be applicable to the source.'' See IDAPA
58.01.01.322.01 and -.03. These revisions resolve this interim approval
issue.
H. Exemption From Applicable Requirements
At the time EPA granted Idaho interim approval, Idaho's rules
allowed IDEQ to exempt sources from otherwise applicable requirements.
See IDAPA 16.01.01.322.01.c (1994). EPA stated that, as a condition of
full approval, Idaho must delete this provision. See 61 FR at 64632.
Idaho has deleted this provision. See IDAPA 58.01.01.322.
I. Emission Trading
In granting Idaho interim approval, EPA stated that Idaho must
demonstrate that its emissions trading provisions meet the requirements
of part 70. See 61 FR at 64632. EPA also recommended that the
requirement of IDAPA 16.01.01.322.05 (1994) (now codified at IDAPA
58.01.01.322.05) that a company contemporaneously record in a company
log a change from one trading scenario to another should be
specifically referred to in the list of requirements a source must meet
in IDAPA 16.01.01.383.03 (1994) in order to make a ``Type II'' permit
deviation.''
IDEQ has made revisions to IDAPA 58.01.01.314.11.c and
58.01.01.322.05.a to ensure that a permit applicant requesting a permit
with emission trading provisions propose replicable procedures and
permit terms that ensure the emissions trades are quantifiable and
enforceable and that emissions trades for which the emissions are not
quantifiable or for which there are no replicable procedures to enforce
the emissions trade will not be approved. In addition, IDAPA
58.01.01.322.05.b now requires that each operating permit state that no
permit revision shall be required under approved economic incentives,
marketable permits, emissions trading, and other similar programs or
processes for changes that are provided for in the permit.
IDEQ did attempt to respond to EPA's recommendation regarding IDAPA
58.01.01.322.05, but the cross-reference to section 383 added to IDAPA
58.01.01.322.05.c appears to be in error. EPA believes that the cross-
reference should be to section 385. Because this change was a
recommendation, and not required by the part 70 regulations, this error
does not pose a bar to full approval. Nonetheless, to avoid unnecessary
confusion, EPA urges the IDEQ to address this minor error in its next
rulemaking.
With these changes, EPA is satisfied that Idaho has resolved the
interim approval issues identified by EPA in connection with emission
trading.
J. Alternative Emission Limits
EPA stated that as a condition of full approval, IDEQ must
demonstrate that its operating permits program meets the requirement of
40 CFR 70.6(a)(1)(iii) that a permit with an allowable alternative
emission limit contain provisions to ensure that any resulting
emissions limit has been demonstrated to be quantifiable, accountable,
enforceable and based on replicable procedures. See 61 FR at 64632.
Under the Idaho rules, alternative emission limits authorized by IDAPA
58.01.01.440 are subject to the same requirements as emission trading
provisions, namely, that any resulting emissions limit must be
demonstrated to be quantifiable, accountable, enforceable and based on
replicable procedures. See IDAPA 58.01.01.314.11.a and .c; IDAPA
58.01.01.322.05a. Therefore, the changes made by IDEQ to address the
interim approval issues for emission trading also address the interim
approval issues identified by EPA for alternative emission limits.
K. Reporting of Permit Deviations
As a condition of full approval, EPA stated that IDEQ must revise
its rules to require prompt reporting of deviations from all permit
requirements, not just those deviations attributable to startup,
shutdown, scheduled maintenance, upset, or breakdown. See 61 FR at
64632. IDEQ has added IDAPA 58.01.01.322.15.q which requires the
reporting of permit deviations attributable to excess emission events
in the time periods specified by Idaho's excess emission rules
(generally within 24 hours of occurrence) and the reporting of all
other permit deviations every six months unless a shorter time period
is specified. EPA is satisfied that Idaho's action resolves this issue.
L. Acid Rain Provisions
In granting Idaho interim approval, EPA stated that Idaho must
demonstrate that its program includes the provision of 40 CFR
70.6(a)(4)(i) that no permit revision is required for increases in
emissions that are authorized by allowances acquired pursuant to the
acid rain program, provided that such increases do not require a permit
revision under any other applicable requirement. See 61 FR at 64632.
IDEQ has revised IDAPA 58.01.01.322.12.b to include this provision.
M. State-Only Enforceable Requirements
In granting Idaho interim approval, EPA stated that Idaho must
demonstrate that its regulations define ``State-Only'' requirements in
a manner consistent with the provisions of 40 CFR 70.6(b)(2), namely,
that no requirement may be ``State-Only'' if it is required under the
Act or under any of its applicable requirements. See 61 FR at 64632.
IDEQ has revised its regulations to specify which provisions may be
designated as ``State Only'' and the definition is
[[Page 42493]]
consistent with the requirements of part 70. IDAPA 58.01.01.322.15.k.
Therefore, EPA is satisfied that Idaho's action resolves this issue.
N. General Permits
EPA stated that, as a condition of full approval, Idaho must revise
its regulations authorizing general permits to be consistent with 40
CFR 70.6(d), including provisions that: (a) Require the permitting
authority to grant the conditions and terms of a general permit to
sources that qualify; (b) require specialized general permit
applications to meet the requirements of title V; and (c) govern
enforcement actions for operation without a permit if the source is
later determined not to qualify for the conditions and terms of the
general permit. See 61 FR at 64632.
IDEQ has revised IDAPA 58.01.01.335.04 to require IDEQ to grant the
conditions and terms of a general permit to sources that qualify. IDAPA
58.01.01.335.03.c now requires that specialized general permit
applications must meet the requirements of title V. IDAPA 58.01.01.316
now provides that, not withstanding the permit shield provisions, an
owner or operator is subject to enforcement action for operating a
source without a title V permit if the source is later determined not
to qualify for coverage under the terms and conditions of its title V
permit. These revisions address the interim approval issues identified
by EPA for general permits.
O. Operational Flexibility
In granting Idaho interim approval, EPA stated that IDEQ must
ensure that the permitting authority attach a copy of the notice of a
permitted operational change to the relevant permit, as required by 40
CFR 70.4(b)(12), as a condition of full approval. See 61 FR at 64633.
IDEQ has revised IDAPA 58.01.01.364.02 to include this requirement.
P. Off-Permit Provisions
Part 70 authorizes an approved permit program to include certain
``off-permit'' provisions whereby a permittee can make a change at its
facility without the need for a permit revision provided the permittee
keeps a record at the facility of each off-permit change and provides
notice of each such change to EPA and the permitting authority. See 40
CFR 70.4(b)(14) and (15). At the time EPA granted Idaho interim
approval, Idaho's rules allowed a permittee seven days within which to
record such a change in a log at its facility. See 16.01.01.382.02
(1994). EPA stated that this seven-day time frame was not consistent
with the requirements of 40 CFR 70.4(b)(14)(iv) and must be changed as
a condition of full approval. See 61 FR at 64633.
Idaho has deleted the provision stating that a source has seven
days in which to record the change and the language in Idaho's rules is
now consistent with part 70. See IDAPA 58.01.01.385.02.b. Therefore,
EPA believes that IDEQ has addressed this interim approval issue.
Q. Permit Renewals
EPA stated that Idaho must revise its regulations to ensure that an
application for a permit renewal will not be considered timely if it is
filed more than 18 months before permit expiration. See 61 FR at 64633.
Idaho has revised its rules to specify that an owner or operator must
submit its renewal application at least six months before, but no
earlier than 18 months before, the permit expiration date. See IDAPA
58.01.01.313.03.
R. Completeness Determination
In granting Idaho interim approval, EPA stated that Idaho must
revise its regulations to ensure that applications will be deemed
complete within 60 days of receipt for all sources. See 61 FR at 64633.
IDEQ has revised IDAPA 58.01.01.361.02 so that it is now clear that if,
within 60 days of receiving the application, IDEQ fails to send written
notice to the applicant regarding whether the application is complete,
the application shall be deemed complete.
S. Administrative Amendments
As a condition of full approval, EPA stated that Idaho must delete
from the list of changes that may be accomplished by administrative
amendment the categories of compliance orders and applicable consent
orders, judicial consent decrees, judicial orders, administrative
orders, settlement agreements, and judgments. See 61 FR at 64633. Idaho
has revised these provisions and IDAPA 58.01.01.381.01 (previously
codified at IDAPA 16.01.01.384.01.a (1994)) no longer lists compliance
orders and applicable consent orders, judicial consent decrees,
judicial orders, administrative orders, settlement agreements, and
judgments as changes that may be accomplished by administrative
amendment. EPA is satisfied that this revision resolves this issue.
T. Minor Permit Modifications
EPA stated that, as a condition of full approval, Idaho must revise
its rules to prohibit the issuance of any permit until after the
earlier of expiration of EPA's 45-day review period or until EPA has
notified the permitting authority that EPA will not object to issuance
of the permit modification. See 61 FR at 64633. Idaho has amended IDAPA
58.01.01.383.03.d (previously codified at IDAPA 16.01.01.385 (1994)) to
expressly prohibit the issuance of any minor permit modification until
after the earlier of expiration of EPA's 45-day review period or until
EPA has notified the permitting authority that EPA will not object to
the issuance of the permit. Therefore, EPA believes that Idaho has
addressed this issue.
U. Group Processing of Minor Permit Modifications
As a condition of full approval, EPA stated that Idaho must delete
the ``director's discretion'' provision in its group processing
procedures or make a showing consistent with 40 CFR 70.7(e)(3)(i)(B)
for alternative thresholds. In addition, as with Idaho's procedures for
minor modification, EPA stated that Idaho must revise its rules to
prohibit the issuance of any permit until after the earlier of
expiration of EPA's 45-day review period or until EPA has notified the
permitting authority that EPA will not object to issuance of the permit
modification. See 61 FR at 64633.
To address the first issue, IDEQ has deleted the language regarding
``director's discretion'' in its provisions regarding group processing
of minor permit modifications. See IDAPA 58.01.01.383 (previously
codified at IDAPA 16.01.01.385 (1994)). With respect to the second
issue, Idaho has revised its group processing provisions so that they
now prohibit the issuance of any minor permit modification until after
the earlier of expiration of EPA's 45-day review period or until EPA
has notified the permitting authority that EPA will not object to the
issuance of the permit. See IDAPA 58.01.01.383.03.d.
V. Reopenings
Idaho's provisions for reopenings originally stated that, in the
case of a reopening for cause initiated by EPA, the notice sent by EPA
to the permittee and IDEQ must contain more information than required
by the part 70 regulations. In granting Idaho interim approval, EPA
stated that Idaho must revise its regulations to ensure that the EPA
notice was only required to contain the information specified by 40 CFR
70.7(g)(1). See 61 FR 64633. IDEQ has revised the notice provisions,
IDAPA 58.01.01.386.02.c (previously codified at IDAPA 16.01.01.387
(1994)), to be
[[Page 42494]]
consistent with the requirements of part 70.
W. Public Participation
In granting Idaho interim approval, EPA stated that Idaho must
demonstrate to EPA's satisfaction that its restrictions on the release
to the public of permits, permit applications, and other related
information under its laws governing confidentiality do not exceed
those allowed by 40 CFR 70.4(b)(3)(viii) and section 114(c) of the
Clean Air Act. See 61 FR 64633. In 1998, Idaho revised its provisions
regarding the disclosure of information submitted to the Department and
claimed as ``confidential.'' State law now provides authority to make
available to the public any permit application, compliance plan, permit
and monitoring and compliance criteria report except for information
which qualifies for confidential treatment as a trade secret, which
shall be kept confidential. See Idaho Code sections 9-342A; 39-111.
State law also provides that the contents of an operating permit shall
not be entitled to confidential treatment. Idaho Code section 9-
342A(1)(b). The Idaho Attorney General's office has clarified that
Idaho interprets the definition of the term ``air pollution emissions
data'' consistent with section 114(c) of the CAA and 40 CFR
2.301(2)(a). Thus, EPA believes that Idaho's laws governing public
assess to title V records meet the requirements of 40 CFR
70.4(b)(3)(viii) and section 114(c) of the CAA.
X. Permits for Solid Waste Incineration Units
EPA stated that, as a condition of full approval, Idaho must ensure
that no permit for a solid waste incineration unit may be issued by an
agency, instrumentality, or person that is also responsible, in whole
or in part, for the design and construction or operation of the unit,
as required by 40 CFR 70.4(b)(3)(iv). See 61 FR 64633. EPA was
concerned because, at the time of interim approval, the Idaho
Department of Health and Welfare, the agency that issued title V
permits in Idaho, was also responsible for the design, construction,
and operation of a small number of solid waste incineration units.
During the 2000 legislative session, the Division of Environmental
Quality became a separate department rather than a division of the
Idaho Department of Health and Welfare, which remained a separate
department. The Department of Environmental Quality is not responsible
for the design, construction, or operation of any solid waste
incineration units. Therefore, no permit for a solid waste incineration
unit will be issued by an agency, instrumentality, or person that is
also responsible, in whole or in part, for the design and construction
or operation of the unit.
Y. Maximum Criminal Penalties
EPA stated that, as a condition of full approval, Idaho must
demonstrate to EPA's satisfaction that it has sufficient authority to
recover criminal penalties in the maximum amount of not less than
$10,000 per day per violation, as required by 40 CFR 70.11(a)(3)(ii).
See 61 FR 64633. During the 1998 legislative session, the Idaho
Legislature revised Idaho Code section 39-117(2) to clarify that
criminal fines may be recoverable in a maximum amount of $10,000 per
day per violation, by stating that:
Any person who knowingly violates any of the provisions of the
air quality public health or environmental protection laws or the
terms of any lawful notice, order, permit, standard or rule issued
pursuant thereto shall be guilty of misdemeanor and upon conviction
thereof, shall be punished by a fine of not more than ten thousand
dollars ($10,000) per day per violation.
EPA is satisfied that Idaho's action resolves this issue.
Z. False Statements and Tampering
In granting Idaho interim approval, we stated that Idaho must
revise State law to provide for criminal penalties of up to $10,000 per
day per violation against any person who knowingly makes any false
material statement, representation or certification in any form, in any
notice or report required by a permit or who knowingly renders
inaccurate any required monitoring device or method, as required by 40
CFR 70.11(a)(3)(iii). See 61 FR at 64633.
To address this issue, Idaho added IDAPA 58.01.01.125 and 126,
which specifically prohibit a person from knowingly making a false
statement, representation, or certification in any form, notice, or
report required under any permit, or any applicable rule or order in
force pursuant thereto, or from knowingly rendering inaccurate any
required monitoring device or method required. The Idaho Attorney
General's office has confirmed that the criminal penalties described in
Idaho Code section 39-117 apply to those who knowingly violate IDAPA
58.01.01.125 or 126.
AA. Environmental Audit Statute
In granting Idaho interim approval, EPA stated that Idaho must
revise both the immunity and disclosure provisions of the Idaho Audit
Act, Idaho Code title 9, chapter 8, to ensure that they do 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 civil and
criminal penalties and otherwise assure compliance. Alternatively, EPA
stated that Idaho must demonstrate to EPA's satisfaction through an
Attorney General's opinion that these required enforcement authorities
are not compromised by the Idaho Audit Act. See 61 FR 64633.
The Environmental Audit Protection Act lapsed by its terms on
December 31, 1997 and the implementing rules were repealed in 1998. EPA
is therefore satisfied that Idaho has resolved this issue.
BB. Correction of Typographical Errors and Cross-References
EPA also noted several typographical errors and erroneous cross
references that Idaho must address to obtain full approval. Idaho has
made each of the changes.
III. What Other Changes Has Idaho Made to Its Program--Outside of
Addressing the Interim Approval Issues?
Idaho has made several other changes to its operating permits
program since EPA granted Idaho interim approval in 1996. These
changes, as well as EPA's action on the changes, are discussed below.
A. Designation of the Idaho Department of Environmental Quality
As discussed above, during the 2000 legislative session, the
Division of Environmental Quality became a separate department rather
than a division of the Idaho Department of Health and Welfare, which
remained a separate department. See Idaho Code sections 39-102A and 39-
104. At the same time, the Department of Environmental Quality was
given the title V authorities previously held by the Department of
Health and Welfare. See Idaho Code sections 39-108 to 39-118D. EPA
proposes to approve as a revision of Idaho's title V program the
transfer of the program from the Department of Health and Welfare,
Division of Environmental Quality, to the Department of Environmental
Quality.
B. Recodification
As discussed above, Idaho has also renumbered and recodified all of
its air quality regulations. Idaho's title V rules are now codified in
IDAPA Chapter 58. EPA proposes to approve this renumbering and
recodification as a revision to Idaho's title V program.
C. Permit Fees
Idaho has revised its fee rules to allow payment of fees based on
actual annual
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emissions, an estimate of actual annual emissions, or/and allowable
emissions based on permit limitations. See IDAPA 58.01.01.530 through
538. The per ton fee is $30. IDEQ stated in its submittal that it
recognized the $30 per ton fee may need adjustment once IDEQ better
understands the amount of fees it collects under its revised rules and
the amount it costs to run a successful title V program.
The sufficiency of Idaho's fee rules was not identified by EPA as
an interim approval issue. EPA will be conducting a review of Idaho's
title V fees to determine whether the fees collected are sufficient to
cover its title V permit program costs and whether title V fees are
used solely for title V permit program costs, as required by 40 CFR
70.9. Therefore, EPA is taking no action on Idaho's fee rules at this
time and defers its determination of the sufficiency of Idaho's fee
rules until the fee review is completed.
D. Permit Revision Procedures
Since obtaining interim approval, IDEQ has revised the following
regulations of IDAPA 58.01.01 governing permit revision procedures in
an attempt to clarify these requirements: section 209.05 (permit to
construct procedures for Tier 1 sources); section 380 (changes to Tier
1 permits); section 381 (administrative permit amendments); section 382
(significant permit modifications); section 383 (regarding minor permit
modifications); section 384 (section 502(b)(10) changes and certain
emission trades); section 385 (off-permit changes and notices); and
section 386 (permit reopenings for cause). The goal of the revisions
was to clarify, consistent with the requirements of part 70, what kinds
of changes qualify for each type of permit revision procedure and make
them easier to apply by phrasing the rules in the positive as opposed
to the negative (i.e., what changes qualify for a specific permit
revision procedure, instead of what changes do not qualify for a
certain permit revision procedure), as is currently the case in several
of the part 70 permit revision provisions. EPA has reviewed IDEQ's
revised permit revision procedures and believes they meet the
requirements of part 70. Therefore, EPA proposes to approve Idaho's
revised permit revision procedures as a revision to Idaho's part 70
program.
E. Compliance Certification Requirements
IDEQ has revised its rules so that the compliance certification
requirements are consistent with the revised compliance certification
requirements of part 70. See IDAPA 58.01.01.314.11. EPA proposes to
approve Idaho's revised compliance certification procedures as a
revision to Idaho's part 70 program.
F. Deferral of Minor Sources
IDEQ has revised its rules to defer the permitting of nonmajor
sources that are not affected sources under the acid rain program, are
not required to obtain a permit under section 129(e) of the CAA, and
are not subject to a standard under section 111 or 112 of the CAA
promulgated after July 21, 1992. See IDAPA 58.01.01.301.02.b.iv. EPA is
proposing to approve this revision.
IV. Proposed Final Action
EPA proposes full approval of the operating permits program
submitted by IDEQ based on the revisions submitted on July 9, 1998, May
25, 1999, and March 15, 2001, which satisfactorily address the program
deficiencies identified in EPA's December 6, 1996 Interim Approval
Rulemaking. See 61 FR 64622. In addition, EPA is proposing to approve,
as a title V operating permit program revision, IDEQ's designation as a
department and the Idaho title V permitting authority; the
recodification and renumbering of Idaho's title V rules; and Idaho's
revised regulations for permit revision procedures, compliance
certification, and the deferral of permitting nonmajor sources
submitted on the same dates. EPA is not proposing to take action on
Idaho's revised fee rules. As previously discussed, EPA will be
conducting a review of Idaho's title V fees to determine whether the
fees collected are sufficient to cover its title V permit program costs
and whether title V fees are used solely for title V permit program
costs.
Consistent with EPA's action granting Idaho interim approval, 61 FR
at 64623, this approval does not extend to ``Indian Country'', as
defined in 18 U.S.C. 1151. See 64 FR 8247, 8250-8251 (February 19,
1999); 59 FR 42552, 42554 (August 18, 1994).
V. Request for Public Comment
We are soliciting public comment on all aspects of this proposal.
These comments will be considered before taking final action. To
comment on today's proposal, you should submit comments by mail or in
person (in triplicate if possible) to the ADDRESSES section listed in
the front of this document. Your comments must be received by September
12, 2001 to be considered in the final action taken by EPA.
VI. Are There any Administrative Requirements That Apply to This
Action?
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this proposed action is not a ``significant
regulatory action'' and therefore is not subject to review by the
Office of Management and Budget. Under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.) the Administrator certifies that this proposed
rule will not have a significant economic impact on a substantial
number of small entities because it merely approves state law as
meeting federal requirements and imposes no additional requirements
beyond those imposed by state law. This rule does not contain any
unfunded mandates and does not significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Public Law 104-4) because it proposes to approve pre-existing
requirements under state law and does not impose any additional
enforceable duties beyond that required by state law. This rule also
does not have tribal implications because it will not have a
substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175,
``Consultation and Coordination with Indian Tribal Governments'' (65 FR
67249, November 9, 2000). This rule also does not have Federalism
implications because it will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132,
``Federalism'' (64 FR 43255, August 10, 1999). The rule merely proposes
to approve existing requirements under state law, and does not alter
the relationship or the distribution of power and responsibilities
between the State and the Federal government established in the Clean
Air Act. This proposed rule also is not subject to Executive Order
13045, ``Protection of Children from Environmental Health Risks and
Safety Risks'' (62 FR 19885, April 23, 1997) or Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001), because it
is not a significantly regulatory action under
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Executive Order 12866. This action will not impose any collection of
information subject to the provisions of the Paperwork Reduction Act,
44 U.S.C. 3501 et seq., other than those previously approved and
assigned OMB control number 2060-0243. For additional information
concerning these requirements, see 40 CFR part 70. An agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
In reviewing State operating permit programs submitted pursuant to
title V of the Clean Air Act, EPA will approve State programs provided
that they meet the requirements of the Clean Air Act and EPA's
regulations codified at 40 CFR part 70. In this context, in the absence
of a prior existing requirement for the State to use voluntary
consensus standards (VCS), EPA has no authority to disapprove a State
operating permit program for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews an operating
permit program, to use VCS in place of a State program that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Operating permits, Reporting and recordkeeping requirements.
Dated: August 1, 2001.
Ronald A. Kreizenbeck,
Acting Regional Administrator, Region 10.
[FR Doc. 01-20215 Filed 8-10-01; 8:45 am]
BILLING CODE 6560-50-P