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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5521-3 ]

Clean Air Act Proposed Interim Approval and in the Alternative

Disapproval of Operating Permits Program, State of Idaho; Clean Air Act

Proposed Delegation of National Emission Standards for Hazardous Air

Pollutants as They Apply to Part 70 Sources and Approval of Streamlined

Mechanism for Future Delegations, State of Idaho

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed action.

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SUMMARY: The EPA is reproposing action on two limited aspects of the

Operating Permits Program submitted by the Idaho Division of

Environmental Quality for the purpose of complying with Federal

requirements for an approvable State program to issue operating permits

to all major stationary sources and to certain other sources. The first

element involves the changes EPA believes are necessary as a condition

of full approval to the State's regulations dealing with general

permits. The second element involves the effect of the State's

environmental audit statute on the State's enforcement obligations

under title V of the Clean Air Act.

In addition, if EPA grants interim approval of Idaho's title V

operating permits program, EPA proposes to delegate the National

Emission Standards for Hazardous Air Pollutants (NESHAP) as adopted by

the State and as they apply to part 70 sources. EPA also proposes to

approve a streamlined mechanism for future NESHAP delegations.

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

ADDRESSES: Comments must be submitted to Elizabeth Waddell, at EPA

Region 10, 1200 Sixth Avenue, M/D-108, Seattle, WA 98101. Copies of the

State's submittal and other supporting information used in developing

this proposed action are available for inspection during normal

business hours at the following location: U.S. Environmental Protection

Agency, Region 10, 1200 Sixth Avenue, Docket # 10V100, Seattle,

Washington.

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

M/D-108, Seattle, WA 98101, (206) 553-4303.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

1. Title V

Title V of the 1990 Clean Air Act Amendments (sections 501-507 of

the Clean Air Act (``the Act'')), and implementing regulations at 40

Code of Federal Regulations (CFR) Part 70 require that States develop

and submit operating permits programs to EPA by November 15, 1993, and

that EPA act to approve or disapprove each program within 1 year after

receiving the submittal. The EPA's program review occurs pursuant to

section 502 of the Act and the part 70 regulations, which together

outline criteria for approval or disapproval. Where a program

substantially, but not fully, meets the requirements of part 70, EPA

may grant the program interim approval for a

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period of up to 2 years. If EPA has not fully approved a program by 2

years after the November 15, 1993 date, or by the end of an interim

program, it must establish and implement a Federal program.

2. Section 112

Section 112(l) of the Act established new, more stringent

requirements upon a State or local agency that wishes to implement and

enforce an air toxics program pursuant to section 112 of the Act. Prior

to November 15, 1990, delegation of NESHAP regulations to the State and

local agencies could occur without formal rulemaking by EPA. However,

the new section 112(l) of the Act requires EPA to approve State and

local toxics rules and programs under section 112 through formal notice

and comment rulemaking. State and local air agencies that wish to

implement and enforce a Federally-approved air toxic program must make

a showing to EPA that they have adequate authorities and resources.

Approval is granted by EPA through the authority contained in section

112(l), and implemented through the Federal rule found in 40 CFR part

63, subpart E if the Agency finds that: (1) the State or local program

or rule is ``no less stringent'' than the corresponding Federal rule or

program, (2) adequate authority and resources exist to implement the

State or local program or rule, (3) the schedule for implementation and

compliance is sufficiently expeditious, and (4) the State or local

program or rule is otherwise in compliance with Federal guidance.

3. Prior Action on Idaho's Title V Submittal

On October 27, 1995, EPA proposed disapproval of Idaho's operating

permits program because of deficiencies in the State's provisions for

excess emissions and administrative amendments. In the alternative, EPA

proposed interim approval of Idaho's program provided Idaho revised its

regulations to address these deficiencies and submitted the revisions

to EPA before final action on Idaho's submittal. See 60 FR 54990. EPA

also proposed to grant interim approval under section 112(l)(5) of the

Act and 40 CFR 63.91 of Idaho's program for receiving delegation of

section 112 standards that are unchanged from Federal standards as

promulgated, but only as they apply to part 70 sources, if EPA granted

interim approval to Idaho's title V program. The EPA received a single

letter of public comment on the proposal. The commenter disagreed with

EPA's proposal to approve Idaho's program only for sources located

outside the exterior boundaries of Indian Reservations and with EPA's

failure to grant full approval to Idaho's insignificant activities

list. In addition, Idaho has submitted program revisions addressing

EPA's two proposed grounds for disapproving Idaho's program. Neither

the comments submitted in response to the October 25, 1995, proposal

nor the program revisions submitted by the State involve the two issues

on which EPA is reproposing action in this notice. Accordingly, EPA

will address the comment, any additional comments it receives in

response to this reproposal and the effect of the State's program

revisions when EPA takes final action after the close of the public

comment period on this notice.

II. Discussion

A. Reconsideration of General Permit Requirements

In the October 27, 1995, Federal Register notice proposing action

on Idaho's title V submission, EPA identified four deficiencies in

Idaho's general permitting regulations which EPA believed must be

addressed as a condition of full approval. See 60 FR 54990 (October 27,

1995). One such deficiency identified by EPA was that the Idaho

Administrative Procedures Act (IDAPA) 16.01.01.335.05 states that

issuance of authorization to operate under a general operating permit

is a final agency action for purposes of administrative and judicial

review of the authorization. EPA stated that this provision was in

conflict with the requirements of 40 CFR 70.6(d)(2), which allows a

permitting authority to grant a source's request for authorization to

operate under a general permit without repeating the public

participation procedures, but provides that such grant shall not be

final agency action for purposes of judicial review. Upon further

reflection, EPA believes that part 70 does not prevent a permitting

authority from subjecting a decision to grant or deny a general permit

to judicial review, but instead merely states that a permitting

authority is not required to make such a decision subject to judicial

review. In this respect, the Idaho program does not conflict with the

requirements of part 70, but instead merely requires more public

participation than required by part 70. Accordingly, EPA believes the

Idaho program does not conflict with the requirements of part 70 by

subjecting to administrative and judicial review the State's decision

that a particular source meets or fails to meet the applicability

requirements for a general permit. EPA therefore proposes that Idaho

not be required to eliminate this provision as a condition of full

approval.

B. Idaho's Environmental Audit Statute

The Clean Air Act sets forth the minimum elements required for

approval of a State operating permits program, including the

requirement that the permitting authority has adequate authority to

assure that sources comply with all applicable CAA requirements as well

as authority to enforce permits through recovery of minimum civil

penalties and appropriate criminal penalties. Section 502(b)(5) (A) and

(E) of the CAA. EPA's implementing regulations, which further specify

the required minimum elements of State operating permits programs (40

CFR part 70), explicitly require States to have certain enforcement

authorities, including authority to seek injunctive relief to enjoin a

violation, to bring suit to restrain violations imposing an imminent

and substantial endangerment to public health or welfare, and to

recover appropriate criminal and civil penalties. 40 CFR 70.11. In

addition, section 113(e) of the Clean Air Act sets forth penalty

factors for EPA or a court to consider for assessing penalties for

civil and criminal violations of title V permits. EPA is concerned

about the potential impact of some State privilege and immunity laws on

the ability of such States to enforce federal requirements, including

those under title V of the Clean Air Act. Based on review and

consideration of the statutory and regulatory provisions discussed

above, EPA issued guidance on April 5, 1996, entitled, ``Effect of

Audit Immunity/Privilege Laws on States' Ability to Enforce Title V

Requirements'' to address these concerns. This guidance outlines

certain elements of State audit immunity and privilege laws which, in

EPA's view, may so hamper the State's ability to enforce as to preclude

approval the State's title V operating permits program.

In the October 27, 1995, Federal Register notice proposing action

on Idaho's title V submission, which was published prior to issuance of

the April 5, 1996, guidance, EPA discussed the impact of Idaho's

environmental audit statute, Idaho Code Title 9, Chapter 8, on the

approvability of Idaho's title V operating permits program. EPA

expressed concern with two aspects of Idaho's environmental audit

statute. See 60 FR 55000. First, EPA was concerned with the provision

prohibiting the State from compelling a source, with certain limited

exceptions, to provide the State

[[Page 30572]]

a report that meets the definition of an ``environmental audit report''

(referred to here as the ``audit privilege''). See Idaho Code 9-804 to

-807. Although EPA was concerned that the audit privilege could be used

to shield bad actors and frustrate access to crucial factual

information, however, EPA stated it did not believe that Idaho's audit

privilege posed a bar to full title V approval. Second, EPA was

concerned with the provision which grants a source immunity from civil

or criminal liability for any violations voluntarily disclosed by the

source to the State in an environmental audit report (referred to here

as the ``audit immunity provision''). See Idaho Code 9-809. EPA stated

that the audit immunity provision of the Idaho environmental audit

statute appeared to impermissibly interfere with the requirement that

States have authority to collect a penalty for each day of violation.

Therefore, EPA proposed to require, as a condition of full approval,

that Idaho eliminate the audit immunity provision of Idaho Code 9-809

or demonstrate to EPA's satisfaction that the provision does not

impermissibly interfere with the enforcement requirements of title V.

Since publishing the October 27, 1995, proposal acting on Idaho's

title V program, EPA has reviewed the audit immunity and audit

privilege provisions of Idaho's audit immunity statute in light of the

April 5, 1996, guidance. After further consideration of the enforcement

requirements of title V and the Idaho environmental audit statute in

light of this guidance, EPA believes that both the immunity and

privilege provisions of the Idaho environmental audit statute deprive

the State of Idaho of adequate authority to enforce the requirements of

title V of the Clean Air Act. Accordingly, EPA proposes that Idaho be

required to revise both the audit immunity and audit privilege

provisions of its environmental audit statute or demonstrate to EPA's

satisfaction that these provisions do not impermissibly impair the

enforcement authorities required for full title V approval.

1. Audit Immunity Provision

EPA continues to believe that the Idaho immunity statute (Idaho

Code 9-809) impermissibly interferes with the enforcement requirements

of title V and part 70. In addition, EPA has identified additional ways

in which the Idaho audit immunity provision appears problematic. The

Idaho statute provides that any person who makes a voluntary disclosure

of an environmental audit report identifying circumstances that may

constitute a violation of State environmental laws to the appropriate

agency shall be immune from civil or criminal penalties or

incarceration for the underlying associated acts. Idaho Code 9-809(1).

This provision does contain some restrictions. First, the immunity does

not apply to the extent the disclosure is required by law or a specific

permit condition or order because such a disclosure is not considered

``voluntary'' under the Idaho statute. Idaho Code 9-809(5). Because of

the recordkeeping, reporting and compliance certification requirements

of 40 CFR 70.6, which Idaho has adopted as part of its title V program

(see IDAPA 16.01.01.322), the scope of the audit immunity should be

greatly restricted with respect to title V sources in Idaho. Second,

the immunity is not available if the person has committed ``serious

violations that constitute a pattern of continuous or repeated

violations of environmental laws, regulations, permit conditions,

settlement agreements, consent orders, and were due to separate and

distinct events giving rise to the violations within the three (3) year

period prior to the date of the disclosure.'' Idaho Code 9-809(6).

These restrictions do diminish the scope of the immunity to some

extent. Nevertheless, the Idaho statute appears to bar prosecution of

``knowing'' violations of title V requirements unless the source has

previously and repeatedly violated the same requirements within the

past three years. EPA believes, such a restriction on criminal penalty

authority deprives the State of authority to recover ``appropriate''

penalties for criminal conduct, as required by section 502(b)(5)(E) of

the Act and 40 CFR 70.11(a)(3)(ii), 70.11(a)(3)(iii) and 70.11(c).

Moreover, the Idaho statute would preclude the assessment of civil

penalties for violations voluntarily disclosed in an environmental

audit even if the violations resulted in serious harm or risk of harm

to the public or the environment or resulted in substantial economic

benefit to the violator. Section 113(e) of the Clean Air Act requires

EPA or the court to consider these factors in assessing penalties. To

the extent the Idaho statute prevents consideration of these factors,

EPA believes that Idaho does not have adequate authority to assess

appropriate penalties as required by section 502(b)(5)(E) of the Clean

Air Act and 40 CFR 70.11(c).

In addition to the impermissible restrictions on criminal and civil

penalties, EPA also believes that the Idaho immunity statute unduly

interferes with the State's authority to issue emergency orders and

seek injunctive relief. Title V requires a State to have clear

authority to restrain or enjoin immediately activities that present an

imminent and substantial endangerment to public health or welfare or

the environment and to seek injunctive relief where necessary to stop a

violation, correct noncompliance and prevent its recurrence. See

section 502(b)(5)(E); 40 CFR 70.11(a) (1) and (2). The Idaho audit

immunity provision could be interpreted to interfere with these

requirements in two respects. First, Idaho Code 9-809(7) states that

the audit immunity does not affect the authority of the State to

require remedial action through a consent order or action in district

court or to abate an imminent hazard ``[e]xcept as specifically

provided,'' but the exception to the immunity provision also states

that ``[a] person may, but is not required, to enter into a voluntary

consent order with the environmental regulatory agency to achieve

compliance.'' Idaho Code 9-809(5). This provision suggests that the

State may be precluded from issuing a unilateral order or seeking a

court order requiring a source to correct a violation on a specified

schedule, at least where the violation does not involve an imminent

hazard.

Second, Idaho Code 9-809(3) states that ``where audit evidence

shows the noncompliance to be the failure to obtain a permit or other

governmental permission, appropriate efforts to correct the

noncompliance may be demonstrated by the submittal of a permit

application or equivalent document within a reasonable time.'' A source

must generally demonstrate that it has achieved compliance within a

reasonable period in order to demonstrate that an audit was voluntary

and thus a basis for seeking immunity. See Idaho Code 9-809(2)(c). It

is unclear, however, whether Idaho Code 9-809(3) was intended to allow

a source to continue the unlawful activity for which a permit was

required (for example, construction of a new major source without a

permit) without being subject to penalty or other enforcement action or

whether it was merely intended to give the source immunity for its past

activities of constructing without a permit. As noted above, EPA

believes that the Idaho audit immunity provision does not comport with

the title V requirements for penalty authority to the extent it grants

immunity for criminal violations and for civil violations resulting in

serious harm or risk of harm or a substantial economic benefit. If

Idaho Code 9-809(3) would also prevent the State from issuing or

seeking an order

[[Page 30573]]

enjoining the violation (for example, an order halting construction),

EPA believes that the Idaho law would also impermissibly interfere with

the enforcement requirements of title V and part 70. In short, EPA

believes that the effect of Idaho's audit immunity provision on the

requirements of 40 CFR 70.11(a) (1) and (2) for emergency orders and

injunctive relief is unclear and must be clarified by the State as a

condition of full approval.

2. Audit Privilege

The part 70 regulations governing program approval do not

specifically address the scope of privileges available in State

enforcement actions. Nonetheless, EPA believes that where a State

adopts a very broad privilege law specifically directed at evidence

related to environmental violations, that privilege could go so far as

to render the overall State enforcement program inadequate even if

other authorities are nominally available (such as injunctive relief

and penalty authority). An excessively broad privilege could so

interfere with the exercise of these nominal enforcement authorities as

to render them meaningless by depriving the State of the ability to

gather evidence needed to establish a violation.

The Idaho audit privilege (Idaho Code 9-804 to -807) broadly

prohibits the State from requiring a source to disclose an

``environmental audit report,'' thus depriving the State of potentially

important information for determining whether a source is in violation,

whether a violation was knowing and whether the source took prompt

action to correct the violation. The Idaho legislation does contain

some restrictions on the scope of this privilege. Importantly, the law

makes clear that ``[d]ocuments, data and other information which must

be collected, developed and reported pursuant to federal and state law,

rule and regulation must be disclosed in accordance with the applicable

law, rule or regulation.'' Idaho Code 9-805; See also Idaho Code 9-807.

Because of the recordkeeping, reporting and compliance certification

requirements of 40 CFR 70.6, which Idaho has adopted as part of their

title V program (see IDAPA 16.01.01.322), the scope of the audit

privilege should be greatly restricted with respect to title V sources

in Idaho. In addition, the audit privilege does not apply if an

environmental agency or a court, after in camera review, determines

that the environmental audit privilege is asserted for a fraudulent

purpose or that the material sought to be withheld is not an

appropriate subject for an environmental audit. Idaho Code 9-806(2).

Nonetheless, where an audit produces evidence of noncompliance, the

Idaho privilege would prevent the State from reviewing that evidence to

determine whether the violation will be corrected and compliance

assured. Similarly, where an audit reveals evidence of prior criminal

conduct on the part of managers and employees, Idaho would be barred

from obtaining and using such information. As a result, the State would

be prevented from obtaining appropriate criminal penalties. In these

respects, EPA believes that the Idaho audit privilege set forth in

Idaho Code 9-804 to -807 is so broad so as to deprive the State of its

ability to obtain appropriate criminal penalties and assure compliance,

as required by section 502(b)(5)(E) of the Clean Air Act and 40 CFR

70.11.

C. Proposed Action on Section 112(l) Submittal

As stated above, the requirements for title V approval, specified

in 40 CFR 70.4(b), encompass section 112(l)(5) requirements for

approval of a State program for delegation of section 112 standards as

promulgated by EPA as they apply to part 70 sources. Section 112(l)(5)

requires that the State's program contain adequate authorities,

adequate resources for implementation, and an expeditious compliance

schedule, which are also requirements under part 70. On October 27,

1995, EPA proposed to grant interim approval under Section 112(l)(5) of

the Act and 40 CFR 63.91 of the State of Idaho's program for receiving

delegation of 112 standards that are unchanged from Federal standards

as promulgated but only as they apply to Part 70 sources, if EPA

granted interim approval to Idaho's operating permits program.

By letter dated December 14, 1995, Idaho also requested that EPA

approve its use of the automatic delegation mechanism for delegation of

future section 112 standards unchanged from the Federal standards as

described in section 5.1.2.a of EPA's ``Interim Enabling Guidance for

the Implementation of 40 CFR Part 63'', Subpart E, EPA-453/R-93-040,

November 1993 (Subpart E Enabling Guidance). After reviewing Idaho's

legal authorities, EPA has determined that Idaho does not meet the

criteria set forth in the Subpart E Enabling Guidance to receive

automatic delegation of future section 112 standards because it cannot

immediately implement and enforce future section 112 standards without

additional rulemaking at the State level.

Although Idaho has the authority to include Federal standards in

part 70 permits without adopting such standards by reference, the

section 112 requirements for some part 70 sources will take effect (or

already have taken effect) prior to the issuance of their part 70

permits. To obtain approval of the delegation of section 112 standards,

Idaho must be able to implement and enforce those standards upon

approval and assure compliance by all sources within the State with

each applicable regulation promulgated under section 112. EPA is

therefore denying Idaho's request for automatic delegation as described

by the State's December 14, 1995 letter.

However, in IDAPA 16.01.107, Idaho has adopted by reference all

Federal standards contained in 40 CFR part 61 and part 63 as in effect

on April 1, 1994. In addition, Idaho has the authority to implement and

enforce those 112 standards that it has adopted by reference.

Therefore, if EPA grants interim approval to Idaho's operating permits

program, EPA proposes to interimly delegate the section 112 standards

contained in 40 CFR parts 61 and 63 which were in effect on April 1,

1994, and as those rules apply to part 70 sources. Those standards

consist of 40 CFR part 61, subparts A through F, H through R, V, W, Y,

BB, and FF; and 40 CFR part 63, subparts A, D, L, and M. EPA would

retain implementation and enforcement authority for these rules as they

apply to non-part 70 sources. EPA recommends that by the time of final

interim approval of this submittal, Idaho should adopt by reference 40

CFR part 61 and 63 at least as in effect June 1, 1996, and continue to

update its incorporation by reference as the federal 112 standards are

revised and new Federal standards are issued.

In addition, EPA proposes to approve the mechanism described in

Section 5.1.2.b of the Subpart E Enabling Guidance for those Federal

standards that Idaho adopts by reference unchanged, if EPA grants

interim approval to Idaho's operating permits program. Using this

streamlined approach, upon adoption of a NESHAP(s) by reference, Idaho

will only need to send a letter of request to EPA. EPA would in turn

respond to this request by sending a letter back to the State

delegating the appropriate NESHAP(s) as requested. No further formal

response from the State would be necessary at this point, and if a

negative response from the State is not received within 10 days of this

letter of delegation from EPA, the delegation would then become final.

Although EPA is proposing to delegate authority to Idaho to enforce

the NESHAP regulations as they apply

[[Page 30574]]

to part 70 sources, it is important to note that EPA will retain

oversight authority for all sources subject to these federal CAA

requirements. EPA has the authority and responsibility to enforce the

Federal regulations in those situations where the State is unable to do

so or fails to do so.

III. Proposed Action and Implications

EPA is reopening the public comment on two conditions EPA proposed

in the October 27, 1995, Federal Register notice (60 FR 54990) as

conditions that Idaho must meet to obtain full approval of its

operating permits program. First, upon further reflection, EPA believes

that IDAPA 16.01.01.335.05, which states that issuance of authorization

to operate under a general operating permit is a final agency action

for purposes of administrative and judicial review of the

authorization, does not conflict with the requirements of 40 CFR

70.6(d)(2), but instead merely requires more public participation than

required by part 70. If EPA takes final action on this proposal,

condition ``n. General Permits'' of Section II.B.2 of the October 27,

1995 Federal Register notice (60 FR 54997) would be revised to read as

follows:

n. General Permits

Idaho must revise its regulations authorizing general permits to

be consistent with 40 CFR 70.6(d), including provisions requiring:

(a) that if a permitting authority has issued a general permit, the

authority must grant the conditions and terms of the general permit

to sources that qualify; (b) specialized general permit applications

meet the requirements of title V; and (c) that the State may take

enforcement action for operation without a permit if the source is

later determined not to qualify for the conditions and terms of the

general permit.

Second, EPA believes that Idaho's environmental audit privilege, as

well as Idaho's environmental audit immunity provision, interfere with

the enforcement requirements of title V and part 70 and must be revised

or otherwise shown to be consistent with title V and part 70

requirements. If EPA takes final action on this proposal, condition

``aa. Environmental Audit Statute'' of Section II.B.2 of the October

27, 1995 Federal Register notice (60 FR 54997) would be revised to read

as follows:

aa. Environmental Audit Statute

Idaho must revise both the immunity and audit provisions of the

Idaho environmental audit statute, Idaho Code title 9, chapter 8, to

ensure that it does not interfere with the requirements of section

502(b)(E)(5) of the Clean Air Act and 40 CFR 70.11 for adequate

authority to pursue appropriate criminal and civil penalties, issue

emergency orders, obtain injunctive relief and otherwise assure

compliance. In the alternative, Idaho must demonstrate to EPA's

satisfaction that these required enforcement authorities are not

impaired by Idaho's environmental audit statute.

Also, if EPA grants interim approval of Idaho's operating permits

program, in addition to approving the program submitted by the State of

Idaho for the purpose of implementing and enforcing the hazardous air

pollutant requirements under section 112 of the Clean Air Act, EPA

proposes to delegate all federal NESHAPs adopted by the State, as they

apply to part 70 sources and to approve the streamlined mechanism for

delegation described in Section 5.1.2.b of the Subpart E Enabling

Guidance.

IV. Administrative Requirements

A. Request for Public Comments

EPA is requesting comments on the three issues addressed in this

notice, namely, (1) conditioning full approval of the Idaho title V

operating permits program on specified changes to Idaho's regulations

addressing general permits (IDAPA 16.01.01.335); (2) conditioning full

approval of the Idaho title V operating permits program on specified

changes to Idaho's environmental audit statute (Idaho Code title 9,

chapter 8) or a satisfactory explanation of why the statute does not

interfere with title V enforcement requirements; and (3) EPA's proposal

to delegate all federal NESHAPs adopted by the State, as they apply to

part 70 sources and to approve the streamlined mechanism for delegation

described in Section 5.1.2.b of the Subpart E Enabling Guidance. All

other aspects of EPA's October 27, 1996 Federal Register notice (60 FR

54990), including all other conditions on interim and full approval of

Idaho's operating permits program, remain unchanged by this reproposal

and are no longer open for public comment. Copies of the State's

submittal and other information relied upon for this proposed action

and notice are contained in a docket maintained at the EPA Regional

Office. The docket is an organized and complete file of all the

information submitted to, or otherwise considered by, EPA in the

development of this proposed action. The principal purposes of the

docket are:

(1) to allow interested parties a means to identify and locate

documents so that they can effectively participate in the approval

process, and

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

The EPA will consider any comments received by July 17, 1996.

B. Executive Order 12866

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

C. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. Sec. 600 et. seq.,

EPA must prepare a regulatory flexibility analysis assessing the impact

of any proposed or final rule on small entities. 5 U.S.C. Secs. 603 and

604. Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

EPA actions under section 502 of the Act do not create any new

requirements, but simply address operating permits programs submitted

to satisfy the requirements of 40 CFR part 70. NESHAP rule or program

delegations approved under the authority of section 112(l) of the Act

also do not create any new requirements, but simply confer Federal

authority for those requirements that the State of Idaho is already

imposing. Because this action does not impose any new requirements, it

does not have a significant impact on a substantial number of small

entities.

D. Unfunded Mandates Reform Act

Under section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, EPA must prepare a budgetary impact

statement to accompany any proposed or final rule that includes a

Federal mandate that may result in estimated costs to State, local, or

tribal governments in the aggregate; or to the private sector, of $100

million or more. Under section 205, EPA must select the most cost-

effective and least burdensome alternative that achieves the objectives

of the rule and is consistent with statutory requirements. Section 203

requires EPA to establish a plan for informing and advising any small

governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the proposed approval action promulgated

today does not include a federal mandate that may result in estimated

costs of $100 million or more to either State, local, or tribal

governments in the aggregate, or to the private sector. This Federal

action approves pre-existing requirements under State or local, and

imposes no new federal requirements. Accordingly, no additional costs

to State, local, or tribal governments, or to the private sector,

result from this action.

[[Page 30575]]

List of Subjects in 40 CFR Part 70

Environmental protection, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Operating permits,

Reporting and recordkeeping requirements, Hazardous substances.

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

Dated: June 6, 1996.

Phil Millam,

Acting Regional Administrator.

[FR Doc. 96-15281 Filed 6-14-96; 8:45 am]

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