Clean Air Act Proposed Disapproval or in the Alternative, Proposed Interim Approval Operating Permits Program; State of Idaho

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5319-9]

Clean Air Act Proposed Disapproval or in the Alternative,

Proposed Interim Approval Operating Permits Program; State of Idaho

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed disapproval or in the alternative, proposed interim

approval

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SUMMARY: EPA proposes alternative actions on the operating permits

program submitted by the Idaho Department of Health and Welfare,

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.

EPA proposes disapproval of the Idaho program based on existing

deficiencies in Idaho's excess emissions and administrative amendments

regulations. The State has advised EPA, however, that it intends to

adopt and submit to EPA revised regulations that address these

deficiencies before EPA takes final action on this proposal. Therefore,

EPA proposes in the alternative that, if these deficiencies are

addressed to EPA's satisfaction before EPA takes final action on this

proposal, the Idaho program be granted interim approval.

DATES: Comments on this proposed action must be received in writing by

November 27, 1995.

ADDRESSES: Comments must be submitted to Elizabeth Waddell at the

address indicated. Copies of the State's submittal and other supporting

information used in developing this action are available for inspection

during normal business hours at the following location: U.S.

Environmental Protection Agency, Region 10, 1200 Sixth Avenue, Seattle,

Washington.

FOR FURTHER INFORMATION CONTACT: Elizabeth Waddell, 1200 Sixth Avenue,

AT-082, Seattle, WA 98101, (206) 553-4303.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Background

As required under title V of the 1990 Clean Air Act Amendments

(sections 501-507 of the Clean Air Act (``the Act'')), EPA has

promulgated rules which define the minimum elements of an approvable

State operating permits program and the corresponding standards and

procedures by which the EPA will approve, oversee, and withdraw

approval of State operating permits programs (see 57 FR 32250 (July 21,

1992)). These rules are codified at 40 Code of Federal Regulations

(CFR) part 70. Title V requires States to develop, and submit to EPA,

programs for issuing these operating permits to all major stationary

sources and to certain other sources.

The Act requires that States develop and submit these programs to

EPA by November 15, 1993, and that EPA act to approve or disapprove

each program within 1 year after receiving the submittal. 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 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.

B. Federal Oversight and Sanctions

EPA must apply sanctions to a State for which 18 months have passed

since EPA disapproved the program. In addition, discretionary sanctions

may be applied any time during the 18 month period following the date

required for program submittal or program revision. If the State has no

approved program 2 years after the date required for submission of the

program, EPA will impose additional sanctions, where applicable, and

EPA must promulgate, administer, and enforce a Federal permits program

for the State. EPA has the authority to collect reasonable fees from

the permittees to cover the costs of administering the program.

II. Proposed Action and Implications

A. Analysis of State Submission

1. Support Materials

On November 15, 1993, the Idaho Department of Health and Welfare,

Division of Environmental Quality (referred to herein as ``IDEQ,''

``the Department,'' ``Idaho'' or ``the State''), submitted a title V

program for EPA review. EPA notified the State in writing on January

13, 1994, that the submittal was incomplete and advised the State of

the changes needed for EPA to find the submittal complete. On January

20, 1995, Idaho resubmitted the State's title V program and requested

approval of

[[Page 54991]]

the program. EPA notified Idaho by letter dated March 14, 1995, that

this submittal was complete. The State submitted additional information

to EPA to supplement its January 1995 submittal on July 14, 1995, and

September 15, 1995. Although EPA considers these supplemental

submittals to be material changes to Idaho's January 1995 program

submittal, EPA has chosen not to extend its review period beyond the

initial 1 year.

Section 2 of the Idaho submittal addresses the requirement of 40

CFR 70.4(b)(1) by describing how the State intends to carry out its

responsibilities under the part 70 regulations. An implementation

agreement is currently being developed between Idaho and EPA. EPA has

deemed the program description to be sufficient for meeting the

requirement of 40 CFR 70.4(b)(1).

Section 3 of the Idaho submittal includes a legal opinion from the

Attorney General of Idaho addressing the thirteen program elements set

forth in 40 CFR part 70 that are specifically required by title V and

40 CFR part 70, as well as several additional program elements.

Together with a supplemental opinion submitted on July 20, 1995, these

opinion letters demonstrate adequate legal authority to implement all

aspects of the title V operating permit program in Idaho.

Appendix V of the Idaho submittal contains the relevant permitting

program documentation which is not contained in regulations, such as

permit application forms, permit forms and relevant guidance to assist

in the State's implementation of its permit program, as required by

Sec. 70.4(b)(4). EPA has determined that the forms meet the

requirements of 40 CFR 70.5(c) for standard permit application forms.

In summary, EPA believes that Idaho's title V operating permits

program substantially meets the requirements of 40 CFR part 70,

Secs. 70.2 and 70.3 for applicability; Secs. 70.4, 70.5, and 70.6 for

permit content, including operational flexibility; Sec. 70.7 for public

participation and minor permit modifications; Sec. 70.8 for permit

review by EPA and affected States; Sec. 70.5 for criteria which define

insignificant activities; Sec. 70.11 for requirements for enforcement

authority; and Sec. 70.5 for complete application forms. The issues

that EPA proposes the State must address in order to obtain interim

approval and full approval are discussed below under ``Options for

Program Approval and Implications.''

The full program submittal and the Technical Support Document (TSD)

are contained in the docket at the address noted above and provide more

detailed information on the State's program.

2. Regulations and Program Implementation

a. Regulations

The Idaho title V operating permit program, known as the Tier I

operating permit program, is authorized by the Environmental Protection

and Health Act (EPHA), Idaho Code 39-101, et seq.. The State of Idaho

revised its Rules for the Control of Air Pollution in Idaho, Volume 16,

Title 1, Chapter 1 of the Idaho Administrative Code (IDAPA) to

implement the requirements of 40 CFR part 70. These revisions were

adopted on April 8, 1994, and became effective May 1, 1994. Additional

revisions to IDAPA 16.01.01 and to 39 of the Idaho Code were made by

the legislature in March of 1995 and by the Department in June of 1995

and are currently in effect. These rules and statute, as well as other

rules and statutes governing State permitting and administrative

actions, were submitted by Idaho with evidence of procedurally correct

adoption as required by 40 CFR 70.4(b)(2).

IDAPA 16.01.01 contains regulations pertaining to both title V and

non-title V sources. Therefore, this notice proposes to approve certain

regulations within IDAPA 16.01.01 as part of Idaho's title V program.

The Technical Support Document identifies the regulations approved in

this rulemaking. The remainder of IDAPA 16.01.01 has been submitted by

the State as a revision to the Idaho State Implementation Plan (SIP)

and will be approved or disapproved as part of the Idaho SIP.

b. Scope of Proposed Action

The Governor's January 20, 1995, letter to EPA contains the

statement that IDEQ is ``the sole implementing agency in the State of

Idaho and will provide coverage to all geographic regions state-wide.''

The State also submitted a list of title V sources in Idaho which

included sources within the exterior boundaries of several Indian

reservations in Idaho. The Shoshone-Bannock Tribes and the Kootenai

Tribe of Idaho interpreted the State's submittal as an assertion by

Idaho of permitting authority over sources on Tribal lands and have

requested EPA to deny Idaho authority to implement Idaho's operating

permits program within the exterior boundaries of Indian reservations

in Idaho. These letters and EPA's response are contained in the docket.

An April 5, 1995, letter from Wally N. Cory, IDEQ Administrator, to EPA

clarified that Idaho did not intend for its submittal to address

jurisdictional issues over Tribal lands.

Because Idaho has neither claimed nor demonstrated authority to

implement and enforce its operating permits program for sources located

within the exterior boundaries of Indian Reservations, EPA proposes

that interim approval of the Idaho operating permits program not extend

to any lands within the exterior boundaries of any Indian Reservation

in Idaho.1 See 59 FR 55813, 55815-55817 (Nov. 9, 1994) (detailed

discussion of EPA's views on implementation of title V programs on

Tribal lands). Title V sources located within the exterior boundaries

of Indian Reservations in Idaho will be subject to the Federal

operating permits program, to be promulgated at 40 CFR part 71

(proposed at 60 FR 20804 (April 27, 1995)), or subject to the operating

permits program of any Tribe approved after issuance of regulations

under 301(d) of the Clean Air Act authorizing EPA to treat Tribes in

the same manner as States for appropriate Clean Air Act provisions

(proposed at 59 FR 43956 (August 25, 1994)).2

\1\This is not a determination that Idaho could not possibly

demonstrate jurisdiction over sources within the exterior boundaries

of Indian Reservations in Idaho. The State has made no such showing,

however. In addition, a December 18, 1985, memorandum from Cheryl

Koshuta, Deputy Attorney General of Idaho, to Ken Brooks, Air

Quality Bureau Chief, states that ``only the federal government and

the Indian tribes have jurisdiction to enforce environmental

regulations on Indian reservations; state regulations do not

apply.''

\2\Tribes may also have inherent sovereign authority to regulate

air pollutants from sources on Tribal lands.

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c. Program Implementation

There are several areas where the Idaho program does not directly

address certain requirements of part 70, but EPA believes either that:

(1) The Idaho program, as a whole, satisfies the requirements of part

70 in that particular respect, or (2) no changes are currently required

to the Idaho program to comply with part 70, but that changes will

likely be required some time in the future.

i. Applicability. With one exception discussed below in the list of

proposed interim approval issues, the Idaho operating permits program

currently meets the requirements of 40 CFR 70.2 and 70.3 regarding

sources subject to the program. See IDAPA 16.01.01.006.99 (definition

of ``Tier I source''); 16.01.01.008.14 (definition of ``major

facility''); 16.01.01.006.35 (definition of ``facility''). EPA notes,

however, two additional areas in which Idaho's rules regarding

applicability differ from the

[[Page 54992]]

requirements of part 70 and will require revision at some later date.

First, part 70's definition of ``major source'' includes a ``major

source'' of radionuclides, as specified by EPA by rule. The Idaho

definition of ``major facility'' in IDAPA 16.01.01.008.14 does not

include a comparable provision. EPA has not yet promulgated a rule

defining a ``major source'' of radionuclides. This deficiency in

Idaho's program will therefore have no immediate effect on the

applicability of Idaho's title V operating permits program. At such

time as EPA promulgates a definition of a ``major source'' of

radionuclides, however, Idaho must revise its rules to incorporate the

EPA definition.

In addition, part 70 requires the permitting of any source in a

source category designated by EPA pursuant to 40 CFR 70.3. See

70.3(a)(5). The Idaho rules require the permitting of any source in a

source category designated by the Department. See IDAPA

16.01.01.006.99.e. At this time, EPA has not designated any additional

sources for permitting under 40 CFR 70.3. At such time as EPA makes

such a designation, however, Idaho will be required to revise its

program to cover sources so designated in order to maintain title V

approval.

ii. Applicable requirements. Part 70 requires all ``applicable

requirements'' to be included in a permit application and permit, and

defines ``applicable requirement'' to include, among other things, any

standard or other requirement provided for in the applicable

implementation plan approved or promulgated by EPA through rulemaking

under title I of the Clean Air Act that implements the relevant

requirements of the Act. See 40 CFR 70.2. Idaho has defined

``applicable requirements'' to include ``Any standard or other

requirement provided for in the applicable state implementation plan,

including any revisions to that plan that are specified in 40 CFR Parts

52.70 though 52.690.'' See IDAPA 16.01.01.008.05.b. EPA interprets this

definition as including as applicable requirements all provisions

promulgated by EPA under title I of the Act (known as Federal

Implementation Plans or ``FIPs''), because it references all of the

plan provisions applicable in Idaho, not just 40 CFR 52.679, which only

lists the provisions of the Idaho SIP. In any event, there is currently

only one FIP in effect in Idaho, a control strategy for sulfur oxides

that applies to The J.R. Simplot Company's facility in Power County,

Idaho. See 40 CFR 52.675. If, during program implementation, Idaho

issues a permit to the Simplot facility that does not include the

applicable provisions of 40 CFR 52.675, EPA would have the authority to

object to issuance of the permit on the grounds that the permit was not

in compliance with applicable requirements. See 40 CFR 70.8(c).

iii. Acid rain permits. The Idaho program does not specifically

require a title V permit to include a statement that, where an

applicable requirement of the Act is more stringent than an applicable

requirement of regulations promulgated under title IV (the acid rain

program), both provisions shall be incorporated into the permit and

shall be enforceable by EPA. See 40 CFR 70.6(a)(1)(ii). IDAPA

16.01.01.322.03, however, specifically requires that a title V

operating permit in Idaho contain at least one permit term or condition

for every applicable requirement specifically identified in the

application. In addition, IDAPA 16.01.01.322.16.m.iv requires a title V

permit to specifically state that nothing in the permit shall alter or

affect the applicable requirements of the acid rain program consistent

with 42 U.S.C. 7651g(a). EPA believes that these provisions are

together adequate to meet the requirement of 40 CFR 70.6(a)(1)(ii).

iv. Group processing of minor permit modifications. Part 70 allows

a permitting authority to process as a group certain categories of

applications for minor permit modifications at a single source. See 40

CFR 70.7(e)(3). 70.7(e)(3)(iii) requires the permitting authority to

notify EPA and affected States of requested permit modifications on a

quarterly basis or within five business days of receipt of an

application demonstrating that the aggregate of a source's pending

applications equals or exceeds the approved threshold levels. The Idaho

program contains procedures for group processing of minor permit

modifications. See IDAPA 16.01.01.385.07. Idaho regulations, however,

give the Department five business days in which to identify the permit

modifications that will be processed as a group and then requires the

Department to notify EPA and affected States of the modifications

``promptly thereafter.'' See IDAPA 16.01.01.385.07.d. EPA proposes to

give full approval to this aspect of Idaho's group processing

procedures because EPA believes that Idaho's regulations are

substantially equivalent to the requirements of part 70 in this

respect, as required by 40 CFR 70.7(e)(1). EPA will review the Idaho

program during implementation, however, to ensure that Idaho is

``promptly notifying'' EPA and affected States of minor modifications

processed as a group.

v. Variances. IDAPA 16.01.01.140 to -.149 establish procedures for

the granting of variances under certain conditions from compliance with

State air pollution control rules. EPA has previously disapproved these

provisions as part of the Idaho SIP. See 58 FR 39466 (July 23, 1993).

EPA regards IDAPA 16.01.01.140 to -.149 as wholly external to the

program submitted by the State of Idaho for approval under part 70, and

consequently proposes to take no action on these provisions of State

law in this rulemaking. EPA does not recognize the ability of a

permitting authority to grant relief from the duty to comply with a

Federally-enforceable title V permit, except where such relief is

granted through procedures allowed by part 70. In other words, a

variance does not affect the title V source until the title V permit is

modified pursuant to procedures approved under part 70. EPA reserves

the right to enforce the terms of the title V permit where the

permitting authority purports to grant relief from the source's duty to

comply with a title V permit in a manner inconsistent with procedures

approved under part 70. A title V permit may also incorporate, via part

70 permit issuance or modification procedures, a schedule of compliance

incorporated into a variance. EPA reserves the right, however, to

pursue enforcement of applicable requirements notwithstanding the

existence of a compliance schedule in a permit to operate. This is

consistent with 40 CFR 70.5(c)(8)(iii)(C), which states that a schedule

of compliance ``shall be supplemental to, and shall not sanction

noncompliance with, the applicable requirements on which it is based.''

3. Permit Fee Demonstration

Section 502(b)(3) of the Clean Air Act requires each permitting

authority to collect fees sufficient to cover all reasonable direct and

indirect costs necessary for the development and administration of its

title V operating permit program. Each title V program submittal must

contain either a detailed demonstration of fee adequacy or a

demonstration that aggregate fees collected from title V sources meet

or exceed $25 per ton of emission per year (adjusted from 1989 by the

Consumer Price Index). See 40 CFR 70.4(b)(7); 40 CFR 70.9. The adjusted

amount is currently $30.07. The $30.07 per ton is presumed, for

purposes of program approval, to be sufficient to cover all reasonable

program costs and is thus referred to as the ``presumptive minimum.''

[[Page 54993]]

The Idaho fee program requires that title V sources pay an annual

registration fee of thirty dollars per ton of oxides of sulfur, oxides

of nitrogen, particulate matter, volatile organic compounds, and five

dollars per curie of radionuclides. There is relief from fees for

fugitive emissions and for hazardous air pollutants (other than

radionuclides) but no relief for emissions in excess of 4,000 tons per

year. See IDAPA 16.01.01.525 to .538. The State submittal included a

demonstration that this program will result in the collection of fees

equivalent to $31.58 per ton of regulated air pollutant and, therefore,

meets the presumptive minimum requirement of 40 CFR 70.9.

The State also included in their submittal a detailed resource

needs and financial analysis study for Idaho's Air Quality Program

which includes its title V program. This study concluded that permit

fees should be set at between $55 and $71 per ton of pollutant in order

to meet the full cost of the title V program. 40 CFR 70.9(5) directs

the Administrator to require the State to provide a detailed accounting

that its fee schedule will cover the permit program costs if there are

serious questions regarding the sufficiency of the fee program to cover

all permit program costs. Since there were many uncertainties in the

State study, EPA has not concluded that this study alone is sufficient

to raise serious questions. However, EPA will closely monitor the

adequacy of the State's fee program during implementation to assure

that adequate fees are collected.

4. Provisions Implementing the Requirements of Other Titles of the Act

a. Authority for Section 112 Implementation

In its program submittal, Idaho demonstrates adequate legal

authority to implement and enforce all section 112 requirements through

the title V permit. Idaho defines the term ``applicable requirement''

to include, among other things, all standards under section 112 of the

Clean Air Act. IDAPA 16.01.01.008.05.d. All title V permit applications

are required to cite and describe all applicable requirements and all

title V permits issued by the State are required to include conditions

that assure compliance with all applicable requirements. IDAPA

16.01.01.314.06; 16.01.01.322.01.

b. Program for Delegation of 112 Standards as Promulgated

The requirements for part 70 program 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 promulgated by

EPA as they apply to title V 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. Therefore, EPA also proposes to grant

approval, under section 112(l)(5) and 40 CFR 63.91, of Idaho's program

for receiving delegation of section 112 standards that are unchanged

from the Federal standards as promulgated. This approval applies to

future standards but is limited to sources covered by Idaho's title V

program. In addition, EPA proposes delegation of all existing standards

and programs under 40 CFR parts 61 and 63 for title V sources.3

Under this approval, Idaho will automatically assume delegation of

future section 112 standards for title V sources. Details of this

delegation mechanism will be set forth in an implementation agreement

to be negotiated before final program approval.

\3\The radionuclide National Emission Standards for Hazardous

Air Pollutant (NESHAP) is a section 112 regulation and therefore,

also an applicable requirement under the State operating permits

program for part 70 sources. There is not yet a Federal definition

of ``major'' for radionuclide sources. Therefore, until a major

source definition for radionuclide is promulgated, no source would

be a major section 112 source solely due to its radionuclide

emissions. However, a radionuclide source may, in the interim, be a

major source under part 70 for another reason, thus requiring a part

70 permit. EPA will work with the State in the development of its

radionuclide program to ensure that permits are issued in a timely

manner.

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c. Implementation of Title IV of the Act

In its program submittal, Idaho demonstrates adequate legal

authority to implement title IV of the Clean Air Act through the title

V permit. Idaho defines the term ``applicable requirement'' to include,

among other things, any standard or other requirement of the acid rain

program under title V of the Act. IDAPA 16.01.01.008.05.e. As discussed

above, all title V permit applications are required to cite and

describe all applicable requirements and all title V permits issued by

the State are required to include conditions that assure compliance

with all applicable requirements.

As discussed below under ``Options for Program Approval and

Implications,'' IDAPA 16.01.01.301.02.b.ii does not require Phase II

sources to obtain a title V permit until June 1, 1999, in direct

conflict with the Federal requirement that Phase II sources obtain

permits by December 31, 1997 (See section 408(d)(3) of the Act).

Because Idaho has the discretion to issue permits to Phase II sources

prior to June 1, 1999, and has committed to meeting the Federal

permitting deadline, EPA does not consider this conflict between the

State and Federal permitting deadlines to be a disapproval issue. EPA

proposes, however, that Idaho must correct this inconsistency as a

condition of full approval.

B. Options for Program Approval and Implications

1. Proposed Disapproval

EPA believes that the excess emissions provisions and

administrative amendment provisions of Idaho's title V program require

disapproval of the program for the following reasons.

a. Excess Emissions

IDAPA 16.01.01.326 to .332 establishes procedures and requirements

related to excess emissions for title V sources in Idaho. With the

exception of IDAPA 16.01.01.332, which provides an affirmative defense

for emissions in excess of a technology-based permit limit due to

``emergency'' as authorized by 40 CFR 70.6(g), Idaho's excess emissions

provisions for title V sources go well beyond what is authorized by

part 70. For example, IDAPA 16.01.01.328 requires Idaho to incorporate

into a permit all startup, shutdown and scheduled maintenance

procedures if it determines that such procedures are consistent with

good air pollution control practices, will minimize emissions during

such period to the extent practicable and that no adverse health impact

on the public will occur. IDAPA 16.01.01.329 contains a similar

provision for excess emissions due to upsets and breakdowns. IDAPA

16.01.01.327.02 then allows a permittee to exceed emission limits in

applicable requirements if the permittee demonstrates that the excess

emissions were caused by startup, shutdown, scheduled maintenance,

upset or breakdown and follows certain other procedures. Because the

Idaho program requires that these provisions be included in title V

permits, EPA believes that title V permits in Idaho will not assure

compliance with all applicable requirements. This is a requirement for

interim approval of a State operating permits program. See 40 CFR

70.4(c)(1) and 70.4(d)(3)(ii). EPA therefore believes that it must

disapprove Idaho's program unless it demonstrates that its excess

emissions provisions for title V sources are consistent with the

requirements of part 70.

[[Page 54994]]

b. Administrative Amendments

Part 70 allows the requirements of a preconstruction permit to be

incorporated into a title V permit by administrative amendment,

provided that such a preconstruction permit is issued under an EPA-

approved program that meets procedural requirements substantially

equivalent to the part 70 procedures for public, affected State and EPA

review that apply to permit modifications and compliance requirements

substantially equivalent to those required for part 70 permits. See 40

CFR 70.7(d)(1)(v). The Idaho program allows the incorporation of terms

of preconstruction permits by administrative amendment. See IDAPA

16.01.01.384.01.a.v. There is no requirement, however, that

preconstruction permits incorporated by administrative amendment

contain compliance requirements substantially equivalent to the

requirements of a title V permit. Therefore, title V permits modified

by administrative amendments through the incorporation of

preconstruction permits would not be required to assure compliance with

all applicable requirements, which is a requirement for interim

approval of a State operating permits program. See 40 CFR 70.4(c)(1)

and 70.4(d)(3)(ii). Accordingly, EPA believes that it must disapprove

Idaho's program unless Idaho demonstrates that terms of preconstruction

permits incorporated into a title V permit by administrative amendment

must contain compliance requirements substantially equivalent to the

requirements of a title V permit.4

\4\As discussed below, an additional change appears to be

necessary to the Idaho provision authorizing administrative

amendments, IDAPA 16.01.01.01.01.384, before EPA can give full

approval to the Idaho program.

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2. Proposed Interim Approval

Idaho has advised EPA that it intends to revise its regulations

governing excess emissions and administrative amendments in order to

make them consistent with the requirements of part 70 before EPA takes

final action on this proposal. Based on this assurance, EPA is

proposing in the alternative to grant interim approval to the Idaho

program. If promulgated, Idaho must address to EPA's satisfaction the

following issues in order to receive full approval.

a. Applicability

The definition of major source in 40 CFR 70.2 requires that

fugitive emissions of a stationary source be considered in determining

if a source is a major stationary source under section 302(j) of the

Clean Air Act if the source is in a source category regulated by a

standard promulgated under section 111 or 112 of the Act, but only with

respect to those air pollutants that have been regulated for that

category. The comparable provision of Idaho's regulations requires that

fugitive emissions of such sources be counted only if the source

category was regulated by such a standard promulgated as of August 7,

1980, and then only to the extent that the fugitive emissions of such

sources are regulated in those source categories. See IDAPA

16.01.01.008.14.h.iii. Although EPA has proposed a change to the part

70 rules that would make the definition of ``major source'' in 40 CFR

70.2 consistent with the August 7, 1980, limitation in the Idaho rule,

see 59 FR 44460, 44527 (August 29, 1994), EPA has not yet taken final

action on that proposed change. If EPA finalizes its proposed revision

to the definition of ``major source'' before the end of Idaho's interim

approval period, Idaho will no longer be required to revise its

definition of ``major facility'' to delete the ``August 7, 1980,''

limitation. In any case, however, Idaho must revise the reference to

``fugitive emissions'' in IDAPA 16.01.01.008.14.h.iii to refer instead

to any ``air pollutant.'' As currently drafted, the Idaho definition

would require that fugitive emissions be considered in determining

whether a source is a title V source only if the standard in question

regulates fugitive emissions at that source, whereas part 70 requires

fugitive emissions to be considered if the standard in question

regulates any air pollutant from that source.

The State of Idaho has stated that it is ``not aware of any

sources'' that would be considered a major source, and thus a title V

source under part 70, but would not be required to obtain a permit

under Idaho's title V program. In addition, one of the deficiencies in

Idaho's definition of ``major facility'' may be eliminated through

proposed revisions to part 70 in the next 2 years. EPA therefore

believes that Idaho's program may be granted source category-limited

interim approval, rather than disapproval, based on the deficiency in

the Idaho definition of ``major facility.'' See 57 FR 32250, 32270

(July 21, 1992). If EPA takes final action on this proposal, Idaho must

demonstrate to EPA's satisfaction by the end of the interim approval

period that its program covers all sources required to be permitted

under part 70.

b. Temporarily Exempt Sources

Part 70 allows States to defer the permitting of sources that would

otherwise be subject to part 70 but that are not major sources,

affected sources (sources subject to the acid rain provisions of title

IV of the Act) or solid waste incineration units required to obtain a

permit under section 129(e) of the Act until such time as EPA conducts

additional rulemaking. See 40 CFR 70.3(b)(1). Idaho rules, however,

allow the State to defer the permitting of acid rain sources (known as

``Phase II sources'' in Idaho) and sources subject to title V solely

because of a solid waste incineration unit until June 1, 1999. See

IDAPA 16.01.01.301.02.b. Idaho rules also allow sources subject to

title V solely because of a solid waste incineration unit until January

1, 1998, to file an application for a title V permit. See IDAPA

16.01.01.313.01.b. Idaho's submittal states that this deferral will

have a minimal impact in Idaho for several reasons. With respect to

Phase II sources, IDAPA 16.01.01.313.01.3 requires permit applications

for such sources to be submitted by January 1, 1996, for sulfur dioxide

and by January 1, 1998, for nitrogen oxides and IDAPA 16.01.01.367.05

provides that the permitting of Phase II sources shall occur in

accordance with the deadlines specified in the Clean Air Act. The

Attorney General has opined that IDAPA 16.01.01.367 gives Idaho the

discretion to issue permits to Phase II sources within the time periods

required by part 70. The State has advised EPA that there is currently

only one Phase II source in Idaho, that the facility intends to submit

a timely application to receive an operating permit prior to the

Federally-mandated date of December 31, 1997, and that the State

intends to meet the permitting deadlines required by part 70 for Phase

II sources notwithstanding IDAPA 16.01.01.301.02.b.ii.

With respect to sources subject to title V solely because of a

solid waste incineration unit, the Attorney General opines that the

State has the authority under IDAPA 16.01.01.313.01 to require earlier

submittal of title V applications for such sources. In addition, Idaho

has advised EPA that there are no sources in Idaho which are currently

subject to any solid waste incineration rules promulgated pursuant to

section 129 of the Act and that, if any such sources are discovered,

Idaho intends to meet the application and permitting deadlines required

under part 70 for such sources.

Based on these opinions and commitments, EPA agrees that the impact

of the difference between Idaho law and part 70 with respect to the

permitting of Phase II sources and sources with solid waste

incineration units is likely to be minimal during the

[[Page 54995]]

interim approval period and that these difference to do not pose a bar

to interim approval. As a condition of full approval, however, EPA

proposes that Idaho be required to demonstrate to EPA's satisfaction

that the application and permitting deadlines for Phase II sources and

sources with solid waste incineration units meet the requirements of

part 70.

c. New Sources

Part 70 requires title V sources applying for a permit for the

first time to submit a permit application within 12 months after the

source becomes subject to the permit program or on or before such

earlier date as the permitting authority may establish. See 40 CFR

70.5(a)(1)(i). IDAPA 16.01.01.313 ties the date by which a title V

source is required to submit an application to whether the source was

in existence on or before May 1, 1994. Sources existing before that

date are, subject to certain exceptions, required to submit an

application by the earlier of January 1, 1996, and 12 months after EPA

approval of Idaho's program. Sources that become title V sources ``due

to construction, reconstruction or modification'' after May 1, 1994,

are, subject to certain extensions, required to submit an application

within 12 months of commencing operation. IDAPA 16.01.01.313.01. The

Idaho regulations do not appear to include a permit application date

for sources that become subject to title V after May 1, 1994, by means

other than construction, reconstruction or modification, such as

relaxation of a limit on potential to emit or by EPA lowering a

threshold for determining major source status.

Again, Idaho asserts that this gap will have a minimal impact in

Idaho because there are few sources that will become subject to title V

through something other than construction, reconstruction or

modification, the State is authorized to set permit application

deadlines for sources and the State intends to require a permit

application from any source that becomes subject to title V in this

manner within 12 months after such source becomes subject to title V.

Based on these assurances, EPA believes that this gap in the

application submission dates does not pose a bar to interim approval of

the Idaho program, but that, in order to receive full approval, Idaho

must demonstrate to EPA's satisfaction 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.

d. Option to Obtain Permit

Part 70 requires States to allow any source exempt under 40 CFR

70.3(b) to opt to obtain a part 70 permit. See 40 CFR 70.3(b)(3). Idaho

has no comparable provision and the State has not demonstrated that it

has authority to issue title V permits to exempt sources. Few, if any,

exempt sources would be expected to apply for a title V permit in

Idaho, however, because Idaho's Tier II operating permit program

provides sources with a mechanism for obtaining Federally-enforceable

operating permit limits through a means other than a title V permit.

See 16.01.01.400-.499. As a condition of full approve, EPA proposes

that Idaho demonstrate to EPA's satisfaction that it has the authority

required by 40 CFR 70.3(b)(3).

e. Fugitive Emissions

Part 70 requires that fugitive emissions from part 70 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 40 CFR 70.3(d). The Idaho regulations do not contain such a

provision, and EPA proposes that Idaho address this requirement of part

70 as a condition of full approval.

f. Insignificant Activities

Part 70 authorizes EPA to approve as part of a State program a list

of insignificant activities and emissions levels which need not be

included in the permit application, provided that an application may

not omit information needed to determine the applicability of, or to

impose, any applicable requirement, or to evaluate the fee amount

required under the EPA-approved schedule. IDAPA 16.01.01.317 contains

criteria for identifying insignificant activities and consists of one

list of units and activities that are defined as ``categorically

exempt'' and may be omitted from the permit application, and another

list of units and activities that are defined as ``insignificant''

based on size or production rate, but must be listed in the permit

application. Importantly, that provision includes a so-called

``gatekeeper,'' which expressly states that no emission unit or

activity subject to an applicable requirement, such as an opacity

standard, may qualify as an insignificant emission unit or activity

under Idaho's rules. See IDAPA 16.01.01.317.01.

EPA believes that, notwithstanding the gatekeeper, full approval of

the lists contained in IDAPA 16.01.01.317 is inappropriate for several

reasons. First, the lists use many terms and acronyms that do not

appear to be defined in regulation or in guidance and Idaho has

provided insufficient documentation that the units and activities

included on the lists are appropriate for industries in Idaho. This

will make the regulation very difficult, if not impossible, to

implement. As an example, IDAPA 16.01.01.317.01.a.52 lists as a

categorically insignificant activity ``materials and equipment used by,

and activity related to operation of infirmary; infirmary is not the

source's business activity.'' This provision could be interpreted to

apply to and thus impermissibly exclude from the permit application

activities subject to the radionuclide NESHAP. Similarly, IDAPA

16.01.01.317.01.a.54.d. and -317.01.a.65 define as categorically exempt

certain units and activities with ``de minimis'' emissions. Again, the

term ``de minimis'' is not defined. Second, IDAPA

16.01.01.317.01.a.54.d., -317.01.a.65 and -317.01.a.122 must be moved

to IDAPA 16.01.01.317.01.b, which requires the identified units and

activities to be listed in the application, because whether these units

and activities are ``insignificant'' depends on size or production

rate. Finally, IDAPA 16.01.01.317.01.b.29 defines as insignificant

``[a]ny other activity that is requested to be listed as insignificant

by the applicant and agreed to by the department.'' Such a ``director's

discretion'' provision is contrary to the requirement of 40 CFR 70.5(c)

that EPA approve the activities and emissions limits defined as

``insignificant'' by the State because it gives the Director completes

discretion to determine on a case-by-case basis that a particular

activity is ``insignificant.'' EPA does not believe that these problems

with Idaho's list of insignificant activities preclude interim approval

of the Idaho program, however, because the ``gatekeeper'' provision of

IDAPA 16.01.01.317.01 adequately assures that Idaho has authority to

issue permits that assure compliance with all applicable requirements

to subject sources during the interim approval period, as required by

40 CFR 70.4(d)(3)(ii) and 70.6(a)(1). EPA proposes that Idaho must

address these identified issues with its designation and definition of

insignificant activities, however, as a condition of full approval.

g. Permit Content

Part 70 requires that the permitting authority include in a title V

permit all emission limitations and standards, including those

operational

[[Page 54996]]

requirements and limitations that assure compliance with all applicable

requirements at the time of permit issuance. See 40 CFR 70.6(a)(1).

IDAPA 16.01.01.322.01 and 16.01.01.322.03 qualify this requirement in

that they require inclusion of only those requirements that are

``identified in the application'' at the time of permit issuance. This

qualification impermissibly relieves the permitting authority from

including in a permit applicable requirements that are not identified

in a permit application. EPA believes that this qualification must be

revised before the Idaho program qualifies for full approval. EPA does

not believe this deficiency precludes interim approval, however,

because sources are obligated under the Idaho program to include all

applicable requirements affecting the source in the permit application,

IDAPA 16.01.01.314.06, and are obligated to supplement and correct a

permit application upon becoming aware that an application contains

incorrect information or omits necessary information. EPA believes that

these provisions minimize the likelihood that applicable requirements

will be omitted from the permit during the interim approval period and

that the Idaho program therefore provides the State with adequate

authority to issue permits that assure compliance with the requirements

of 40 CFR 70.4(c)(1), as required by 40 CFR 70.4(d)(3)(ii).

h. Exemption From Applicable Requirements

IDAPA 16.01.01.325.01.c allows Idaho to exempt sources from

otherwise applicable requirements provided the source submits specified

information, the exemption is included in the title V permit, the

Department has determined in writing that the permittee should be

exempted and the title V permit includes a concise summary of the

Department's determination. Although part 70 authorizes a permitting

authority to determine that a certain requirement is inapplicable to a

source and to provide a source with a shield from a later determination

that the source was subject to such requirement, part 70 does not

authorize a permitting authority to exempt a source from otherwise

applicable requirements. EPA proposes that, as a condition of full

approval, Idaho must eliminate this provision or demonstrate to EPA's

satisfaction that this provision is consistent with the requirements of

part 70. EPA does not believe this deficiency precludes interim

approval, however, because the State is not required to grant such

exemptions and EPA believes it would have the authority to veto any

title V permit issued by Idaho that purported to exempt a source from

an otherwise applicable requirement. See 40 CFR 70.8(c)(EPA will object

to the issuance of any proposed permit determined by EPA not to be in

compliance with applicable requirements).

i. Emissions Trading

Part 70 requires a permitting authority, if a permit applicant so

requests, to issue permits allowing for the trading of increases and

decreases within the permitted facility solely for the purposes of

complying with a Federally-enforceable emissions cap that is

established in the permit independent of otherwise applicable

requirements. See 40 CFR 70.4(b)(12)(iii). The Idaho program authorizes

the permitting authority to issues permits containing emissions trading

provisions. See IDAPA 16.01.01.322.05 and 16.01.01.383.01.a.iii. The

Idaho program does not require, however, an applicant requesting a

permit with emissions trading provisions to include in its permit

application proposed replicable procedures and permit terms that ensure

emission trades are quantifiable and enforceable, as required by 40 CFR

70.4(b)(12)(iii). Nor does the Idaho program require the permitting

authority to include in the emissions trading provisions only those

emission units for which emissions are quantifiable and for which there

are replicable procedures to enforce the emissions trades, as is also

required by that section. Finally, the Idaho regulations do not appear

to require each permit to state that no permit revision is required,

under any approved economic incentives, marketable permits, emissions

trading or other similar programs or processes for changes that are

provided for in the permit, as is required by 40 CFR 70.6(a)(8). As a

condition of full approval, EPA proposes that Idaho be required to

demonstrate that its emissions trading provisions meet the requirements

of 40 CFR 70.4(b)(12)(iii) and 40 CFR 70.6(a)(8). EPA also recommends

that the requirement of IDAPA 16.01.01.322.05 that the company

contemporaneously record in a company log a change from one trading

scenario to another be specifically referred to in the list of

requirements a source must meet in IDAPA 16.01.01.383.03 in order to

make a ``Type II'' permit deviation.

j. Alternative Emission Limits

Part 70 requires that, if an applicable implementation plan allows

a determination of an alternative emission limit, equivalent to that

contained in the plan, to be made in the permit issuance, renewal or

significant modification process and the State elects to use such

process, any permit containing such an equivalency determination shall

contain provisions to ensure that any resulting emissions limit has

been demonstrated to be quantifiable, accountable, enforceable and

based on replicable procedures. See 40 CFR 70.6(a)(1)(iii). Although

the Idaho regulations require such permit terms for permits with

emission trading provisions, see IDAPA 16.01.01.322.05, there is no

such requirement for permits in which alternative emission limits are

established. As a condition of full approval, EPA proposes that the

State be required to demonstrate to EPA's satisfaction that its

operating permit program meets the requirements of 40 CFR

70.6(a)(1)(iii).

k. Reporting of Permit Deviations

Part 70 requires that each permit require the prompt reporting of

deviations5 from permit requirements, including those attributable

to upset conditions as defined in the permit, the probable cause of

such deviations and any corrective actions or preventative measures

taken, and authorizes the permitting authority to define ``prompt'' in

relation to the degree and type of deviation likely to occur and the

applicable requirement. See 40 CFR 70.6(a)(3)(iii)(B). Although the

Idaho regulations contain detailed requirements for defining, limiting,

and reporting permit deviations due to excess emissions caused by

startup, shutdown, scheduled maintenance, upset or breakdown, see IDAPA

16.01.01.326 to -332, they do not address other permit deviations. In

order to receive full approval, EPA proposes that the Idaho program

must be revised to require prompt reporting of deviations from all

permit requirements.

\5\The Idaho regulations use the term ``permit deviation'' to

refer to certain changes authorized by the permit flexibility

provisions contained in 40 CFR 70.6 (9) and (10) and section

502(b)(10) of the Act. See IDAPA 16.01.01.383. The part 70

regulations use the term ``permit deviation'' to refer to permit

violations. See 40 CFR 70.6(a)(3)(iii)(B). This notice uses the term

``permit deviation'' in the same way as the part 70 regulations.

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l. Acid Rain Provisions

Part 70 requires a permit to state that no permit revision is

required for increases in emissions that are

[[Page 54997]]

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 40 CFR 70.6(a)(4)(i). The Idaho

regulations do not appear to contain a comparable provision. EPA

proposes that Idaho must revise its regulations to address the

requirements of 40 CFR 70.6(a)(4)(i) in order to obtain full approval.

m. State-Only Enforceable Requirements

Part 70 requires the permitting authority to specifically designate

as not being Federally enforceable under the Clean Air Act any terms

and conditions included in the permit that are not required under the

Act or under any of its applicable requirements. See 40 CFR 70.6(b)(2).

The Idaho regulations require a permit to state that provisions

specifically identified as ``State Only'' are enforceable only by the

Department and not by EPA. See 16.01.01.322.16.k. The Idaho

regulations, however, do not specify which provisions shall be

designated as ``State Only,'' that is, that Idaho shall designate as

``State Only'' those provisions that are not required under the Act or

under any of its applicable requirements. In order to receive full

approval, EPA proposes that Idaho be required to revise its regulations

to define ``State Only'' provisions in a manner consistent with 40 CFR

70.6(b)(2).

n. General Permits

Part 70 allows States to issue a ``general permit,'' which is a

permit issued after notice and opportunity for public participation,

that covers numerous similar sources. See 40 CFR 70.6(d). The Idaho

program includes regulations authorizing the issuance of general

permits. See IDAPA 16.01.01.335. These regulations fail to comply with

the requirements of part 70, however, in several respects. First, part

70 requires that, if a permitting authority has issued a general

permit, the permitting authority must grant the conditions and terms of

the general permit to sources that qualify. See 40 CFR 70.6(d)(1). The

Idaho program does not contain a comparable requirement. Second, part

70 allows permitting authorities to provide for applications for

general permits which deviate from the requirements of 40 CFR 70.5,

provided that such applications otherwise meet the requirements of

title V. The Idaho regulations allow for specialized applications for

general permits, but do not require that such specialized applications

meet the requirements of title V. See IDAPA 16.01.01.335.02.c. Third,

part 70 allows the permitting authority to grant a source's request for

authorization to operate under a general permit without repeating the

public participation procedures, provided that such grant shall not be

a final permit action for purposes of judicial review. See 40 CFR

70.6(d)(2). IDAPA 16.01.01.335.05, however, provides that the issuance

of authorization to operate under a general operating permit is a final

agency action for purposes of administrative and judicial review. This

directly conflicts with the requirements of 40 CFR 70.6(d)(2). Finally,

section 70.6(d)(1) provides that, notwithstanding the shield provisions

of 40 CFR 70.6(f), a source shall be subject to 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. IDAPA

16.01.01.335.06 limits this requirement by stating that the source is

subject to enforcement action in such a case only if the source

submitted an incomplete or inaccurate application. In order to receive

full approval, EPA proposes that Idaho must revise its regulations

authorizing general permits to be consistent with 40 CFR 70.6(d).

o. Operational Flexibility

Part 70 requires permit programs to include certain ``operational

flexibility'' provisions and authorizes permit programs to include

certain other ``operational flexibility'' provisions in an approved

title V program. See 40 CFR 70.4(b)(12). These provisions allow a

source to make certain types of changes without a permit modification

but require the permittee to provide notice of the change to EPA and

the permitting authority, and require the permittee, the permitting

authority and EPA to each attach a copy of such notice to the relevant

permit. The Idaho program meets all of the requirements of 40 CFR

70.4(b)(12), except that neither the Idaho regulations nor the rest of

the program submittal require or commit the State of Idaho to attach a

copy of any such notice to the relevant permit. In order to receive

full approval, EPA proposes that Idaho address this requirement to

EPA's satisfaction.

p. Off-Permit Provisions

Part 70 authorizes an approved permit program to include certain

``off-permit'' provisions whereby a source can make a change at the

permitted facility without the need for a permit revision. See 40 CFR

70.4(b)(14) and (15). These provisions require the permittee to keep a

record at the facility describing each off-permit change and to provide

``contemporaneous'' notice of each off-permit change to EPA and the

permitting authority. See 40 CFR 70.4(b)(14). The Idaho program

authorizes off-permit changes, and allows a source seven days in which

to make a record at the facility describing the change and to provide

written notice to Idaho and EPA. See IDAPA 16.01.01.382.02. EPA

believes that seven days qualifies as ``contemporaneous,'' within the

meaning of 40 CFR 70.4(b)(14)(ii), and is an acceptable period of time

to allow a source to report an off-permit change to EPA and the

permitting authority. EPA also believes, however, that 40 CFR

70.4(b)(14)(iv) requires a source to record an off-permit change in a

log at the time the change is being implemented and does not allow a

permitting authority to afford a source seven days in which to record

an off-permit change in the facility log. EPA therefore proposes that,

in order to receive full approval, Idaho must revise its regulations to

require a source to record an off-permit change in a log at the

facility on the same day that the change is made.

q. Permit Renewals

Part 70 defines a timely application for a permit renewal as one

that is submitted at least six months prior to the date of permit

expiration or such longer time as may be approved by EPA, but not to

exceed 18 months. See 40 CFR 70.5(a)(iii). The Idaho regulations define

a timely application for a permit renewal as one that is submitted at

least nine months prior to the date of permit expiration. See IDAPA

16.01.01.313.03. The Idaho regulations do not place a limit, however,

on how long before permit expiration a source may submit an application

for a permit renewal. EPA agrees that nine months prior to permit

expiration is an appropriate deadline for the submission of renewal

applications in the State of Idaho. In order to receive full approval,

however, EPA proposes that Idaho be required to 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.

r. Completeness Determination

Part 70 requires that a permit application be deemed complete

within 60 days of receipt unless the permitting authority determines in

that period that the application is not complete or requests additional

information. See 40 CFR 70.5(a)(2) and 70.7(a)(3). The Idaho

regulations meet this requirement except for permit applications which

were due before the effective date of

[[Page 54998]]

EPA approval of Idaho's program but were not subject to a specific

deadline established by the Department under IDAPA 16.01.01.313.01. See

IDAPA 16.01.01.361.02.a.ii. The Department is required to make

completeness determinations for these permit applications as promptly

as practicable or within 90 days of EPA approval of Idaho's title V

program, whichever is earlier, but Idaho's regulations do not specify a

date by which such applications will be deemed complete. In order to

obtain full approval, EPA proposes that Idaho be required to revise its

regulations to ensure that applications will be deemed complete within

60 days of receipt for all sources or establish to EPA's satisfaction

that no sources will in fact fall within the exception of IDAPA

16.01.01.361.02.a.ii.

s. Administrative Amendments

In addition to the deficiency in Idaho's administrative amendment

procedures discussed above, which EPA believes compels disapproval if

not addressed before final action, there is one other deficiency in

Idaho's administrative amendment procedures which EPA believes must be

addressed for full approval. 40 CFR 70.7(d)(1)(vi) authorizes EPA to

approve as appropriate for incorporation by administrative amendment

other types of changes which are similar to those specifically

enumerated in 40 CFR 70.7(d)(1). The Idaho program allows sources to

incorporate into a title V permit by administrative amendment terms and

conditions consistent with a compliance schedule developed in

accordance with IDAPA 16.01.01.322.13.d.6 and the terms and

conditions of an applicable consent order, judicial consent decree,

judicial order, administrative order, settlement agreement or

judgement. See IDAPA 16.01.01.384.01.a.vi and -vii. EPA does not

believe that compliance orders, judicial consent decrees and

administrative orders are similar to the other truly ``administrative''

types of changes specified in part 70 as appropriate for administrative

amendment, such as a change in name or correction of a typo. See 40 CFR

70.7(d)(1). In addition, compliance schedules, which are required to be

at least as stringent as judicial consent decrees and administrative

orders, become additional ``applicable requirements'' once incorporated

into a title V permit. Like any other change to an applicable

requirement, they must therefore be processed as a permit modification.

Accordingly, EPA proposes to require Idaho to delete these items from

the list of changes in IDAPA 16.01.01.384.01.a that may be accomplished

by administrative amendment in order to receive full approval.

\6\The reference in IDAPA 16.01.01.384.01.a.vi to IDAPA

16.01.01.322.13.d appears to be in error. The reference should

instead be to IDAPA 16.01.01.322.12.d.

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t. Minor Permit Modifications

Part 70 requires States to establish procedures for minor permit

modifications which are substantially equivalent to those set forth in

40 CFR 70.7(e). The Idaho program contains such procedures, but fails

to meet the requirements of part 70 in one respect. 70.7(e)(2)(iv)

prohibits a permitting authority from issuing a final 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 issuance of the permit modification, although

the permitting authority can approve the minor permit modification

prior to that time. IDAPA 16.01.01.385.04.c, however, requires Idaho to

issue minor permit modifications prior to the end of EPA's 45-day

review period if more than 60 days have elapsed since receipt of a

complete permit application. As a condition for full approval, EPA

proposes 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.

u. Group Processing of Minor Permit Modifications

Part 70 allows a permitting authority to process as a group certain

categories of applications for minor permit modifications at a single

source. See 40 CFR 70.7(e)(3). 70.7(e)(3)(i) establishes standard

thresholds for determining whether requests for permit modifications

can be grouped, but allows EPA to approve alternative thresholds, if

the permitting authority can justify the alternative thresholds based

on two specified criteria. In addition to establishing emissions

thresholds for group processing of minor permit modification that are

consistent with the Federal program, IDAPA 16.01.01.385.7.b.iv gives

the Director of the Department the discretion to establish any limit,

on a case-by-case basis, for which minor permit modifications may be

processed as a group. The State has provided no information, however,

showing that it considered the factors identified in section

70.7(e)(3)(i)(B) in setting this standard. EPA does not believe that a

provision which gives the permitting authority complete discretion to

establish any threshold for group processing on a case-by-case basis

could ever be approvable under 40 CFR 70.7(e)(3)(i)(B). At a minimum,

however, such a provision must be supported by a showing consistent

with 40 CFR 70.7(e)(3)(i)(B) for alternative thresholds. In order to

receive full approval, EPA proposes that Idaho be required to delete

the ``director's discretion'' provision of IDAPA 16.01.01.385.07.b.iv

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 modifications,

Idaho's regulations regarding group processing of minor modifications

fail to contain the prohibition on issuance of any such 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 issuance of the permit modification. EPA

therefore proposes that Idaho be required to address this requirement

as a condition of full approval.

v. Reopenings

Part 70 establishes minimum requirements a State must meet where

EPA determines that cause exists to terminate, modify or revoke and

reissue a permit. See 40 CFR 70.7(g). The Idaho program meets these

requirements, with one exception. IDAPA 16.01.01.387.02.b requires that

EPA initiate permit reopenings7 for cause by providing written

notification to the Department and the permittee that cause exists to

reopen the permit, as required by 40 CFR 70.7(g)(1). That regulation

goes on, however, to require that EPA include certain information in

the notice that is not required by part 70, such as a brief summary of

all the alterations recommended by EPA. Under the Supremacy Clause of

the United States Constitution, a State regulation is invalid if it

regulates the United States directly, North Dakota v. United States,

495 U.S. 423, 435 (1990), as the Idaho regulation does here by

directing the EPA notice to contain certain information. EPA does not

consider itself bound to issue a notice in the form and containing the

information specified by IDAPA 16.01.01.387.01.b and therefore proposes

to require, as a condition of full approval, that Idaho

[[Page 54999]]

revise its regulations to require that the notice contain no more

information than that specified by 40 CFR 70.7(g)(1).

\7\IDAPA 16.01.01.387.01.a defines ``reopening'' to include

permit termination, revocation, revision or revocation and

reissuance.

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w. Public Participation

Part 70 requires that the permitting authority make available to

the public any permit application, compliance plan, permit, and

monitoring and compliance certification report pursuant to section

503(e) of the Clean Air Act, except for information entitled to

confidential treatment pursuant to section 114(c) of the Act, and

expressly provides that the contents of a title V permit are not be

entitled to confidential treatment. See 40 CFR 70.4(b)(3)(viii). EPA

has carefully reviewed Idaho's statutory and regulatory provisions and

the opinion of the Idaho Attorney General regarding confidentiality.

See Idaho Code 9-301 to -350; Idaho Code 39-111; IDAPA 16.01.01.126;

IDAPA 16.01.01.365.02; Letter from Curt A. Fransen, Deputy Attorney

General, to Jon Sandoval, Acting Administrator, Division of

Environmental Quality, dated January 17, 1995. Based on this review,

EPA believes that Idaho's confidentiality provisions allow far more

information to be kept confidential from the public than is authorized

under part 70 and section 114 of the Act. First, there is no assurance

under Idaho law that the terms and conditions of a title V permit will

not be entitled to confidential treatment. Second, there is no

assurance under Idaho law that ``emission data,'' which is defined very

broadly under 40 CFR 2.301(a)(2), will not be entitled to confidential

treatment. To the contrary, any such information appears to be entitled

to confidential treatment under Idaho law if it relates ``to production

or sales figures or to processes or production unique to the owner or

operator or which tend[s] to affect adversely the competitive position

of such owner or operator'' and the owner or operator follows the

procedures for having such information held by the State as

confidential. Finally, the Idaho standard also appears to be broader

than the standard under the Clean Air Act for what information, other

than emission data and permit terms, may be entitled to confidential

treatment. Section 114(c) of the Clean Air Act allows a source to claim

as confidential only that information which, if made public, would

divulge methods or processes entitled to protection as trade secrets.

EPA is very concerned that the Idaho confidentiality provisions

could substantially interfere with the public's right to participate in

the issuance of title V permits to Idaho sources. EPA believes that the

Idaho program can nonetheless qualify for interim approval at this

time, notwithstanding its potentially restrictive confidentiality

provisions. Part 70 provides that EPA will grant interim approval to

any program that, among other requirements, provides for adequate

public notice of and an opportunity for public comment and a hearing on

draft permits and revisions, except for permits qualifying for minor

permit modification. See 40 CFR 70.4(d)(3)(iv). EPA believes that the

Idaho program meets all of the public participation requirements of

part 70 except with respect to the treatment of confidential

information.

In addition, there are three checks on the possibility that Idaho's

confidentiality provisions will unduly interfere with the public

participation requirements of part 70. First, 40 CFR 70.8(c)(1)

authorizes EPA to object to the issuance of any proposed permit

determined by EPA not to be in compliance with applicable requirements

or the requirements of part 70. EPA intends to exercise its authority

to object to issuance of a proposed permit if a source's

confidentiality claims under Idaho law interfere with the public's

access to information required to be available to the public under 40

CFR 70.4(b)(3)(viii). Second, pursuant to 40 CFR 70.5(a)(3), Idaho law

requires sources to submit directly to EPA any information claimed as

confidential under State law in connection with a title V operating

permit or application. See IDAPA 16.01.01.126. Once in the hands of

EPA, such information will be kept confidential only if it is entitled

to confidential treatment under the Clean Air Act. This safety valve

will provide additional assurance that the public will have access

during the interim approval period to all information that the public

would be able to obtain from the State of Idaho if its confidentiality

provisions were consistent with the Clean Air Act. Finally, 40 CFR

70.10(c)(1)(ii) allows EPA to withdraw approval of an approved title V

operating permit program if the operation of the State program fails to

comply with the requirements of part 70, including failure to comply

with the public participation requirements. If, during the interim

approval period, Idaho's confidentiality provisions are interfering

with the public's right to review and comment on permits, EPA will

consider whether to withdraw program approval on this basis. In any

event, in order to obtain full approval, Idaho must demonstrate to

EPA's satisfaction that its restrictions on the release to the public

of permits, permit applications and other related information do not

exceed those allowed by 40 CFR 70.4(b)(3)(viii) and 114(c) of the Clean

Air Act.

x. Permits for Solid Waste Incineration Units

Part 70 requires an opinion from the Attorney General stating 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. See

40 CFR 70.4(b)(3)(iv). The opinion of the Idaho Attorney General

states, however, that the Idaho Department of Health and Welfare, the

agency that issues title V permits in Idaho, is responsible for the

design, construction and operation of a limited number of solid waste

incineration units, namely, units in mental hospitals and other

institutions run by the Department. As stated previously, however,

there are currently no solid waste incineration units in Idaho that are

now subject to a standard under Section 129 of the Act, and therefore

subject to the title V program in Idaho. EPA therefore does not see

this issue as a bar to interim approval in Idaho, but proposes to

require, as a condition of full approval, that Idaho 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.

y. Maximum Criminal Penalties

Part 70 requires a State to have authority to recover criminal

penalties for violation of any applicable requirement; any permit

condition; any fee or filing requirement; any duty to allow or carry

out inspections, entry or monitoring activities; or any regulation or

orders issued by the permitting authority in the maximum amount of not

less than $10,000 per day per violation. See 40 CFR 70.11(a)(3)(ii).

Idaho law authorizes criminal penalties for such violations but states

that such violations are punishable by ``a fine of not more than ten

thousand dollars ($10,000) for each separate violation or for each day

of continuing violation.'' See Idaho Code 39-117(2). This appears to

limit penalties to a maximum of $10,000 per day even when there is more

than one violation on each day. As a condition of full approval, EPA

proposes that Idaho be required to demonstrate that it has sufficient

authority to recover criminal penalties in the maximum amount of not

less than

[[Page 55000]]

$10,000 per day per violation, as required by 40 CFR 70.11(a)(3)(ii).

z. False Statements and Tampering

Part 70 also requires that criminal fines be recoverable in a

maximum amount of $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. See 40 CFR 70.11(a)(3)(iii). Idaho law does not

appear to contain such authority. The Idaho Attorney General has stated

that the Department has the authority to include such a prohibition in

each permit and intends to do so. This authority, coupled with the

general criminal provisions of Idaho Code 39-117(2), could provide

sufficient authority for making knowing violations of such requirements

subject to criminal liability, but only if the Department is

specifically required to include such prohibitions in each title V

permit. As a condition of full approval, the State must demonstrate to

EPA's satisfaction that it has the criminal enforcement authorities

required by 40 CFR 70.11(a)(3)(iii).

aa. Environmental Audit Statute

In 1995, the Idaho legislature enacted an environmental audit

statute, which prohibits the State from compelling a source, with

certain limited exceptions, to provide the State a report that meets

the definition of an ``environmental audit report.'' See Idaho Code 9-

804. The statute also 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. See Idaho Code 9-809.

Although EPA is concerned that the audit privilege of Idaho Code 9-

804 could be misused to shield bad actors and frustrate access to

crucial factual information, EPA does not believe that the statute

poses a bar to full approval of Idaho's operating permit program. As

EPA has recently stated, however, EPA intends to scrutinize enforcement

more closely in States, such as Idaho, with broad audit privileges to

ensure such statutes do not prevent States from pursuing appropriate

enforcement action and obtaining appropriate penalties. See 60 CFR

16875 (April 3, 1995) (Voluntary Environmental Self-Policing and Self-

disclosure Interim Policy Statement). If, during program

implementation, EPA determines that Idaho Code 9-804 unduly interferes

with Idaho's enforcement responsibilities under part 70, EPA will

consider this grounds for withdrawing program approval in accordance

with 40 CFR 70.10(c).

EPA believes, however, that Idaho Code 9-809, which grants a source

immunity from civil or criminal prosecution for violations discovered

during an environmental audit which are voluntarily disclosed, does

impermissibly interfere with the Idaho's enforcement requirements under

40 CFR 70.11 and thus poses a bar to full approval. Part 70 requires a

State to have authority to recover penalties for each day of violation.

By granting a source absolute immunity for certain voluntarily

disclosed violations, the State has restricted its authority to collect

penalties for each day of violation. EPA therefore proposes to require,

as a condition of full approval, that Idaho eliminate the immunity

currently granted under Idaho Code 9-809 for voluntarily disclosed

violations discovered through an environmental audit report or to

demonstrate to EPA's satisfaction that Idaho Code 9-809 does not

impermissibly interfere with the enforcement requirements of part 70.

bb. Correction of Typographical Errors and Cross-references

The operating permit regulations submitted by the State of Idaho

contain several typographical errors and erroneous cross references

that could interfere with application and implementation of the Idaho

operating permits program. In reviewing the Idaho program, EPA has made

the following assumptions in interpreting the Idaho regulations and

proposes to require, as a condition of full approval, that Idaho be

required to correct these errors in order to obtain full approval.

i. IDAPA 16.01.01.006.31: The reference in the definition of

``emissions unit'' should be to 42 U.S.C. sections 7561 through 7561o

rather than to 42 U.S.C. sections 7561 through 7561.

ii. IDAPA 16.01.01.008.05.f: The reference in subsection (f) of the

definition of ``applicable requirement'' should be to 42 U.S.C. section

7661c(b), rather than to section 7661a(b) (i.e. to section 504(b) of

the Clean Air Act rather than to section 502(b)).

iii. IDAPA 16.01.01.008.12: The reference to the general permit

regulation in the definition of ``general permit'' should be to section

335 (i.e., IDAPA 16.01.01.335), rather than to 322.

iv. IDAPA 16.01.01.008.14: The reference in the definition of

``major facility'' to the definition of ``facility'' should be to

section 006.35 (i.e., IDAPA 16.01.01.006.35), rather than to 006.34.

v. IDAPA 16.01.01.322.10.1.i: The reference in the requirements for

the initial compliance plan should be to ``a verifiable sequence of

actions'' rather than to ``a variable sequence of actions.''

vi. IDAPA 16.01.01.384.01.a.vi: The reference to compliance

schedule in this subsection should be to section 322.12.d (i.e., IDAPA

16.01.01.322.12.d), rather than to section 322.13.d.

vii. IDAPA 16.01.01.385.01.a.iv: The words ``of Title I of the

Clean Air Act'' or some other description of the type of provisions

being referred to appears to have been deleted after the phrase ``as a

modification under any provision.''

viii. IDAPA 16.01.01.387.02.a.iii: The word ``least'' appears to

have been deleted from the phrase ``shall be sent at one (1) day.''

3. Effect of Proposed Action

a. Effect of Disapproval

If EPA were to take final action disapproving the State of Idaho's

title V submittal, EPA would be required to apply one of the sanctions

in section 179(b) of the Clean Air Act on the date 18 months after the

effective date of the disapproval, unless prior to that date the State

had submitted a revised program and EPA had determined that the revised

program corrected the deficiencies that prompted the disapproval.

Moreover, if the Administrator found a lack of good faith on the part

of the State, both sanctions under section 179(b) would apply after the

expiration of the 18-month period until the Administrator determined

that the State had come into compliance. In all cases, if, six months

after EPA applied the first sanction, the State had not submitted a

revised program that EPA had determined corrected the deficiencies that

prompted disapproval, a second sanction would be required.

In addition, discretionary sanctions may be applied where warranted

any time after EPA has disapproved a State program. Moreover, if EPA

were to disapprove the State program and had not granted full approval

to a corrective submittal by November 15, 1995, EPA must promulgate,

administer and enforce a Federal permits program for Idaho.

b. Effect of Interim Approval

Final interim approval may be granted for up to 2 years following

the effective date of final interim approval, and can not be renewed.

During the interim approval period, Idaho would be protected from

sanctions, and EPA would not be obligated to promulgate, administer and

enforce a Federal permits program for the State of Idaho.

[[Page 55001]]

Permits issued under a program with interim approval have full standing

with respect to part 70. In addition, the 1-year time period for

submittal of permit applications by subject sources and the 3-year time

period for processing the initial permit applications begins upon the

effective date of interim approval.

If, following the grant of interim approval, Idaho were to fail to

submit a complete corrective program for full approval by the date 6

months before expiration of the interim approval, EPA would start an

18-month clock for mandatory sanctions. If Idaho then failed to submit

a corrective program that EPA found complete before the expiration of

that 18-month period, EPA would be required to apply one of the section

179(b) sanctions, which would remain in effect until EPA determined

that Idaho had corrected the deficiency by submitting a complete

corrective program. Moreover, if the Administrator finds a lack of good

faith on the part of the State, both sanctions under section 179(b)

would apply after the expiration of the 18-month period until the

Administrator determined that the State had come into compliance. In

any case, if, six months after application of the first sanction, Idaho

still had not submitted a corrective program that EPA found complete, a

second sanction would be required.

If, following final interim approval, EPA were to disapprove

Idaho's complete corrective program, the consequences would be the same

as if EPA were to disapprove, rather than to grant interim approval to,

Idaho's submittal.

4. Scope of Proposed Interim Approval

If EPA grants final interim approval to the Idaho program, EPA

proposes that the program would apply to all title V sources (as

defined in the approved program) within Idaho, except for any sources

within the exterior boundaries of Indian Reservations in Idaho. See,

e.g., 59 FR 55813, 55815-18 (Nov. 9, 1994).

5. Proposed Action on Section 112(l) Submittal

Requirements for title V approval, specified in 40 CFR 70.4(b),

encompass section 112(l)(5) requirements for approval of a program for

delegation of section 112 standards as promulgated by EPA as they apply

to title V 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. Therefore, if EPA grants interim approval to Idaho's

operating permits program, EPA also proposes to grant 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 section 112 standards that are

unchanged from Federal standards as promulgated. This program for

delegations would apply only to sources covered by Idaho's title V

operating permits program.

III. Administrative Requirements

A. Request for Public Comments

EPA is requesting comments on all aspects of this proposed action.

Copies of the State's submittal and other information relied upon for

the proposed action 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 process, and

(2) To serve as the record in case of judicial review.

EPA will consider any comments received by November 27, 1995.

B. Executive Order 12866

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

C. Regulatory Flexibility Act

EPA's 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. 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

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 action proposed 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 law, 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.

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.

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

Dated: October 17, 1995.

Chuck Clarke,

Regional Administrator.

[FR Doc. 95-26658 Filed 10-26-95; 8:45 am]

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