[Federal Register Volume 60, Number 208 (Friday, October 27, 1995)]
[Proposed Rules]
[Pages 54990-55001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26658]



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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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