[Federal Register Volume 67, Number 15 (Wednesday, January 23, 2002)]
[Rules and Regulations]
[Pages 3106-3113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1119]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 61 and 63

[FRL -7126-3]


Approval of the Clean Air Act, Section 112(l), Delegation of 
Authority to the Idaho Department of Environmental Quality

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency, Region 10 (EPA) approves 
the Idaho Department of Environmental Quality's (IDEQ) request for 
program approval and delegation of authority to implement and enforce 
specific National Emission Standards for Hazardous Air Pollutants 
(NESHAPs) as they apply to major sources in Idaho required to obtain an 
operating permit under Title V of the federal Clean Air Act (CAA or 
Act). Pursuant to the authority of section 112(l) of the Act, this 
approval is based on EPA's finding that Idaho State law, regulations, 
and resources meet the requirements for program approval and delegation 
of authority specified in regulations pertaining to the criteria for 
straight delegation common to all approval options, and in applicable 
EPA guidance.
    The purpose of this delegation is to acknowledge IDEQ's ability to 
implement a NESHAP program and to transfer primary implementation and 
enforcement responsibility from EPA to IDEQ for Title V sources, also 
referred to as ``major sources.'' Although EPA will look to IDEQ as the 
lead for implementing the NESHAPs delegated to IDEQ at major sources in 
Idaho, EPA retains authority under section 112(l)(7) of the Act to 
enforce any applicable emission standard or requirement for major 
sources, if needed. EPA also retains authority to implement and enforce 
these standards for non-Title V sources. With program approval, IDEQ 
may choose to request newly promulgated or updated standards and expand 
its program to include non-Title V sources by-way-of a streamlined 
request and approval process, described below.
    Concurrent with this direct final rule, EPA is publishing a 
proposed rule in today's Federal Register. If no adverse comments are 
received in response to the direct final rule, no further activity is 
contemplated. If EPA receives adverse comments, this direct final rule 
will be withdrawn and all public comments received will be addressed in 
a subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period. Any parties interested in commenting 
on this action should do so at this time.

DATES: This direct final rule is effective on March 25, 2002 without 
further notice, unless EPA receives adverse comment by February 22, 
2002. If adverse comment is received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Written comments should be submitted to the address below:
    Tracy Oliver, Office of Air Quality (OAQ-107), EPA, Region 10, 1200 
Sixth Avenue, Seattle, Washington 98101, (206) 553-1172.
    Copies of delegation requests and other supporting documentation 
are available for public inspection at US EPA, Region 10 office during 
normal business hours. Please contact Tracy Oliver to make an 
appointment.

FOR FURTHER INFORMATION CONTACT: Tracy Oliver, Office of Air Quality 
(OAQ-107), EPA, Region 10, 1200 Sixth Avenue, Seattle, Washington 
98101, (206) 553-1172.

SUPPLEMENTARY INFORMATION:

Contents

I. Background and Purpose
    a. What are the requirements for NESHAP delegation?
    b. What is the history of this delegation?
    c. How has IDEQ satisfied the requirements for NESHAPs 
delegation?
II. EPA Action
    a. What specific emission standards is EPA delegating to IDEQ?
    b. What specific standards does EPA not delegate?
    c. What General Provisions authorities are automatically granted 
as part of Idaho's Title V operating permits program approval?
    d. What General Provisions authorities is EPA delegating in this 
action?
    e. What General Provisions authorities are not delegated?
III. Implications
    a. How will this delegation affect the regulated community?
    b. Where will the regulated community send notifications and 
reports?
    c. How will this delegation affect Indian country?
    d. What will be IDEQ's reporting requirements to EPA?
    e. How will IDEQ receive delegation of future and revised 
standards?
    f. How frequently should IDEQ update their delegation?
IV. Summary
V. Administrative Requirements
    a. Executive Orders 12866 and 13045
    b. Executive Order 13132
    c. Executive Order 13084
    d. Regulatory Flexibility Act
    e. Unfunded Mandates
    f. Submission to Congress and the Comptroller General
    g. Petitions for Judicial Review

I. Background and Purpose

    Hazardous air pollutants are defined in the Act as pollutants that 
present or may present the threat of adverse human health effects 
through inhalation or other type of exposure. These pollutants are 
commonly referred to as ``air toxics'' and are listed in section 
112(b)(1) of the Act. National Emission Standards for Hazardous Air 
Pollutants (NESHAPs) control emissions of hazardous air pollutants from 
specific source categories and implement the requirements of section 
112 of the Act. These standards, found in 40 CFR Parts 61 and 63, 
constitute the Federal Air Toxics Program.

[[Page 3107]]

    Section 112(l) of the Act enables EPA to approve state and local 
air toxics programs or rules such that these entities can accept 
delegation of authority for implementation and enforcement. Typically, 
a state or local agency requests delegation based on federal rules 
adopted unchanged into state or local rules.
    On June 18, 2001, IDEQ requested program approval and delegation of 
authority to implement and enforce certain NESHAPs as they apply to 
``major sources'' \1\ required to obtain an operating permit under 
Title V of the Act. A ``major source'' of hazardous air pollutants is 
defined in the Act as any stationary source--or group of stationary 
sources in a contiguous area and under common control--that emit, or 
have the potential to emit: (1) 10 tons per year or more of any 
hazardous air pollutant; or (2) 25 tons or more of any combination of 
hazardous air pollutants.
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    \1\ For the purposes of this action: (1) A source that is 
required to obtain an operating permit under Title V of the federal 
Clean Air Act may be considered a ``major source,'' as defined in 40 
CFR Part 70.2; (2) ``Title V source'' and ``major source'' may be 
considered equivalent; and (3) ``Title V program'' and ``Part 70 
permit program'' may be considered equivalent.
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    Pursuant to the authority of section 112(l) of the Act, EPA is 
approving IDEQ's NESHAP program and delegating authority to implement 
and enforce certain NESHAPs adopted unchanged into state law, as they 
apply to major sources. The purpose of this action is to acknowledge 
IDEQ's ability to implement and enforce a NESHAP program and to 
transfer primary responsibility from EPA to IDEQ for certain NESHAPs as 
they apply to Title V sources. Although EPA will look to IDEQ as the 
lead to implement and enforce delegated NESHAPs at Title V sources in 
Idaho, EPA retains authority under section 112(l)(7) of the Act to 
enforce any applicable emission standard or requirement for these 
sources, if needed. EPA also retains authority to implement and enforce 
these standards for non-Title V sources. With today's NESHAP program 
approval, IDEQ may update its delegation status in the future by way of 
a streamlined process. This will simplify the delegation of additional, 
newly promulgated, or revised standards as they apply to Title V 
sources, as well as non-Title V sources.

a. What Are the Requirements for NESHAP Delegation?

    EPA may delegate authority for NESHAPs if the requesting agency is 
able to satisfy requirements of 40 CFR 63.91(b), including the ability 
to demonstrate:
    (1) The state or local program is not less stringent than the 
corresponding federal program or rule;
    (2) The state or local has adequate authority and resources to 
implement and enforce the program;
    (3) The schedule for compliance is sufficiently expeditious;
    (4) The program is otherwise in compliance with federal guidance.
    Once approval is granted, the agency's air toxics program can be 
implemented and enforced by the requesting agency. EPA also retains 
enforcement authority.
    If--as in this case--an agency with an approved operating permit 
program under Title V of the Act is requesting NESHAP delegation for 
major sources only, it is presumed that they already meet section 
112(l) delegation requirements for major sources. This is because the 
authority and enforcement requirements for Part 70 program approval are 
equivalent to the authority and enforcement requirements for section 
112(l) delegation found in 40 CFR 63.91(d). And, the approval of a 
Title V program already confers the responsibility to implement and 
enforce all requirements applicable to sources subject to the Title V 
program, including section 112.
    In addition to meeting the delegation criteria implicit in Title V 
program approval, IDEQ has submitted documents to demonstrate it 
satisfies 40 CFR 63.91(d) approval requirements for delegation for all 
sources. Because IDEQ has satisfied these requirements, it will only 
need to reference this demonstration and reaffirm that it continues to 
meet these criteria if it asks for delegation of new and updated 
standards, or requests broader applicability of its delegation to 
include non-Title V sources. These changes can be made in IDEQ's 
delegation status by-way-of a streamlined request and approval process, 
described below.

b. What Is the History of This Delegation?

    On September 15, 1995, IDEQ requested delegation of authority to 
implement and enforce specific NESHAP regulations that IDEQ had adopted 
unchanged into Idaho law as they apply to major sources. On December 
14, 1995, IDEQ also requested approval of its mechanism for receiving 
automatic delegation of future NESHAP standards, as promulgated.
    On June 17, 1995, EPA proposed interim approval of IDEQ's request 
for delegation under section 112(l) of the Act and requested public 
comment on the action. EPA also proposed approval of a mechanism for 
IDEQ to receive delegation of future NESHAPs. (See 61 FR 30570) No 
comments were received on EPA's proposed action, and on December 6, 
1996, EPA promulgated final interim approval of the delegation. (See 61 
FR 64622) EPA granted interim rather than full approval because it 
determined that IDEQ's enforcement authorities substantially, but not 
fully, met the requirements of 40 CFR 70.11.
    In granting Idaho interim approval of its NESHAPs program for major 
sources, EPA delegated authority for implementing and enforcing the 
following NESHAPs as they applied to Title V sources: (1) 40 CFR Part 
61, subparts A, C, D, E, F, J, L through P, V, Y, BB, and FF; and (2) 
40 CFR Part 63, subparts A, D, L, and M. EPA granted interim approval 
of a streamlined mechanism for receiving future delegation of NESHAPs 
which were adopted unchanged into Idaho law and as they applied to 
Title V sources.
    On July 9, 1998, May 25, 1999, and March 15, 2001, the State of 
Idaho submitted to EPA materials addressing the Part 70 enforcement 
authority issues which had previously prevented full approval of its 
Title V program and NESHAP delegation, as well as all other issues that 
previously precluded full approval of Idaho's Title V program. These 
submittals requested full approval of Idaho's air operating permits 
program, transmitted the State's revised Title V statutes and rules, 
and discussed changes made to the State's operating permits program 
since interim approval was granted.
    Based on EPA's review of the Title V program revisions submitted by 
the State of Idaho, EPA proposed full approval of Idaho's operating 
permits program on August 13, 2001. EPA determined that the State 
corrected the deficiencies and requested public comments on the 
proposed action. (See 66 FR 42490) On October 4, 2001, EPA promulgated 
final approval of Idaho's Title V program. (See 66 FR 50574)
    On June 18, 2001, IDEQ requested final full delegation of authority 
for specific NESHAPs as they apply to Title V sources. This request was 
for delegation of Part 61 and 63 subparts in effect on July 1, 2000 and 
adopted unchanged into Idaho rules on March 30, 2001.

c. How Has IDEQ Satisfied the Requirements for NESHAP Delegation?

    40 CFR 63.91 contains requirements that an Agency must meet for 
NESHAP delegation. If this request is for authority to implement and 
enforce the standards for all sources, the agency must demonstrate that 
it has adequate

[[Page 3108]]

enforcement authority, legal authority, resources, and schedule for 
expeditious compliance. If the State already has an approved Title V 
program and the request is for Title V sources only, it is presumed 
that they have already met the requirements needed to implement and 
enforce NESHAPs for these sources.
    Idaho's Title V approval was promulgated as an interim approval in 
1997 because EPA determined that Idaho's authorities did not meet all 
of the requirements in 40 CFR part 70. Its request for NESHAP 
delegation also received interim approval because EPA determined that 
Idaho's enforcement authorities did not meet all of the requirements in 
40 CFR 70.11, as required by 40 CFR 63.91(5)(6).
    In the Federal Register notice that granted interim approval, EPA 
outlined several changes Idaho needed to make before it could receive 
final approval. The three changes that affected NESHAP delegation 
pertained to maximum criminal penalties, false statements and 
tampering, and the environmental audit statute. (See 61 FR 62622) These 
issues were all adequately addressed by Idaho in their subsequent Title 
V program application, which was approved by EPA. (See 66 FR 42490 and 
66 FR 50574) .
    IDEQ has shown by way of Title V program approval, that IDEQ has 
adequate statutes, rules, authority, and program capacity to: (1) meet 
the requirements of Part 70.11 to address violations; (2) request 
information from regulated sources regarding compliance status; and (3) 
inspect sources and records to determine compliance status. These 
requirements of Title V are also requirements for section 112(l) 
delegation. Also, as a condition of its Title V program approval, EPA 
has determined that IDEQ has the ability to implement and enforce all 
applicable requirements for sources subject to the part 70 permit 
program, including section 112 requirements. As a result, EPA finds 
that IDEQ meets the requirements for NESHAP delegation for major 
sources. (See 40 CFR 63.91(d)(3))
    With regard to program approval, in addition to demonstrating the 
enforcement authorities described above, Idaho met the following 
criteria for approval listed in 63.91(b):
    (1) A copy of state statutes, regulations, and requirements that 
grant authority to implement a NESHAP program upon approval;
    (2) a demonstration that the agency has the capacity to implement a 
NESHAP program, supported by a description of their program, a 
description of the implementing agency (including such things as budget 
and staffing);
    (3) a schedule demonstrating expeditious implementation upon 
approval;
    (4) a plan that ensures expeditious compliance by all sources 
subject to the delegated standards upon approval.
    All of these requirements were met with IDEQ's submittal. These 
documents are available for public review and inspection at the address 
listed above.

II. EPA Action

a. What Specific Emission Standards Is EPA Delegating to IDEQ?

    EPA is delegating certain part 61 and 63 Subparts to IDEQ based on 
its ability to carry out implementation and enforcement 
responsibilities for Title V sources subject to these standards. The 
following subparts--also summarized in the part 61 and 63 tables at the 
end of this rule--are delegated: (1) 40 CFR part 61 Subparts A, C, D, 
E, F, J, L, M, N, O, P, T, V, Y, and BB in effect July 1, 2000; (2) 40 
CFR part 63 Subparts A, D, F, G, H, I, L, M, N, O, Q, R, S, T, U, W, X, 
Y, AA, BB, CC, DD, HH, EE, GG, II, JJ, KK, LL, OO, PP, QQ, RR, TT, UU, 
VV, WW, YY, CCC, DDD, EEE, GGG, HHH, III, JJJ, LLL, MMM, NNN, OOO, PPP, 
RRR, TTT, VVV, and XXX in effect July 1, 2000.

b. What Specific Standards Does EPA Not Delegate?

    EPA does not delegate all the 40 CFR part 61 subparts pertaining to 
radon or radionuclides. Typically, EPA delegates all standards adopted 
(and requested) by an air agency and in effect as of a certain date, 
regardless of whether or not there are any applicable sources within 
that agency's jurisdiction. As an exception, EPA is not delegating 
several 40 CFR part 61 subparts pertaining to radon or radionuclides 
which include: subparts B, Q, H, I, K, R, and W. EPA has determined 
that there are either no sources in Idaho (and that no new sources are 
likely to emerge), or if there are sources, the IDEQ does not have 
sufficient expertise to implement these NESHAPs.
    Additionally, EPA is not delegating the regulations that implement 
CAA sections 112(g) and 112(j), codified at 40 CFR part 63, Subpart B, 
to IDEQ. EPA has determined that Subpart B need not be delegated under 
the section 112(l) approval process. When promulgating the regulations 
implementing CAA section 112(g), EPA stated its view that ``the Act 
directly confers on the permitting authority the obligation to 
implement section 112(g) and to adopt a program which conforms to the 
requirements of this rule. Therefore, the permitting authority need not 
apply for approval under section 112(l) in order to use its own program 
to implement section 112(g)'' (See 61 FR 68397). Similarly, when 
promulgating the regulations implementing section 112(j), EPA stated 
its belief that ``section 112(l) approvals do not have a great deal of 
overlap with the section 112(j) provision, because section 112(j) is 
designed to use the Title V permit process as the primary vehicle for 
establishing requirements'' (See 59 FR 26447). Therefore, state or 
local agencies implementing the requirements under sections 112(g) and 
112(j) of the Act do not need approval under section 112(l).

c. What General Provisions Authorities Are Automatically Granted as 
Part of Idaho's Title V Operating Permits Program Approval?

    Certain General Provisions authorities are automatically granted to 
IDEQ as part of its part 70 operating permits program approval. These 
are 40 CFR 63.6(i)(1), ``Extension of Compliance with Emission 
Standards,'' and 63.5(e) and (f), ``Approval and Disapproval of 
Construction and Reconstruction.'' \2\ Additionally, for 40 CFR 
63.6(i)(1), IDEQ does not need to have been delegated a particular 
standard or have issued a part 70 operating permit for a particular 
source to grant that source a compliance extension. However, IDEQ must 
have authority to implement and enforce the particular standard against 
the source in order to grant that source a compliance extension.
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    \2\ Sections 112(i)(1) and (3) state that ``Extension of 
Compliance with Emission Standards'' and ``Approval and Disapproval 
of Construction and Reconstruction'' can be implemented by the 
``Administrator (or a State with a permit program approved under 
Title V).'' EPA interprets that this authority does not require 
delegation through Subpart E and, instead, is automatically granted 
to States as part of its Title V operating permits program approval 
provided the State has authority to implement those NESHAP standards 
in the Title V permit.
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d. What General Provisions Authorities Is EPA Delegating in This 
Action?

    In a memorandum from John Seitz, Office of Air Quality Planning and 
Standards, dated July 10, 1998, entitled, ``Delegation of 40 CFR part 
63 General Provisions Authorities to State and Local Air Pollution 
Control Agencies,'' EPA clarified which of the authorities in the 
General Provisions may and may not be delegated to state and local 
agencies under 40 CFR part 63, subpart E. Based on this memo, EPA is 
delegating to IDEQ the part 63, subpart A, sections that are listed 
below.

[[Page 3109]]

    Delegation of these General Provisions authorities will enable IDEQ 
to carry out the EPA Administrator's responsibilities in these sections 
of subpart A. In delegating these authorities, EPA grants IDEQ the 
authority to make decisions which are not likely to be nationally 
significant or alter the stringency of the underlying standard. The 
intent is that these agencies will make decisions on a source-by-source 
basis, not on a source category-wide basis.

 Table 1.--Part 63, Subpart A, General Provisions Authorities Which EPA
                            Delegates to IDEQ
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              Section                            Authorities
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63.1..............................  Applicability Determinations
63.6(e)...........................  Operation and Maintenance
                                     Requirements--Responsibility for
                                     Determining Compliance
63.6(f)...........................  Compliance with Non-Opacity
                                     Standards--Responsibility for
                                     Determining Compliance
63.6(h) [except 63.6(h)(9)].......  Compliance with Opacity and Visible
                                     Emissions Standards--Responsibility
                                     for Determining Compliance
63.7(c)(2)(i) and (d).............  Approval of Site-Specific Test Plans
63.7(e)(2)(i).....................  Approval of Minor Alternatives to
                                     Test Methods
63.7(e)(2)(ii) and (f)............  Approval of Intermediate
                                     Alternatives to Test Methods
63.7(e)(2)(iii)...................  Approval of Shorter Sampling Times
                                     and Volumes When Necessitated by
                                     Process Variables or Other Factors
63.7(e)(2)(iv) and (h)(2), (3)....  Waiver of Performance Testing
63.8(c)(1) and (e)(1).............  Approval of Site-Specific
                                     Performance Evaluation (monitoring)
                                     Test Plans
63.8(f)...........................  Approval of Minor Alternatives to
                                     Monitoring
63.8(f)...........................  Approval of Intermediate
                                     Alternatives to Monitoring
63.9 and 63.10 [except 63.10(f)]..  Approval of Adjustments to Time
                                     Periods for Submitting Reports
------------------------------------------------------------------------

    In delegating 40 CFR 63.9 and 63.10, ``Approval of Adjustments to 
Time Periods for Submitting Reports,'' IDEQ has the authority to 
approve adjustments to the timing of the reports that are due, but do 
not have the authority to alter the contents of the reports. For Title 
V sources, semiannual and annual reports are required by part 70 and 
nothing herein will change that requirement.

e. What General Provisions Authorities Are Not Delegated?

    In general, EPA does not delegate any authorities that require 
implementation through rulemaking in the Federal Register, or where 
Federal overview is the only way to ensure national consistency in the 
application of the standards or requirements of CAA section 112. The 
types of authorities that EPA retains are: equivalency determinations, 
approval of alternative test methods, decisions where federal oversight 
is needed to ensure national consistency, and any decision that 
requires rulemaking to implement. The authorities listed in the table 
below (also mentioned in the footnotes of the parts 61 and 63 
delegation tables at the end of this rule) are the specific General 
Provisions authorities that cannot be delegated to any state or local 
agency, which EPA therefore retains sole authority to implement.\3\
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    \3\ For authorities in 40 CFR parts 61 and 63 that are not 
addressed in this rulemaking and not otherwise identified as 
authorities that cannot be delegated, one may assume that they are 
delegated.

   Table 2.--Part 61 and 63, Subpart A, General Provisions Authorities
         Which EPA Cannot Delegate to State and Local Agencies.
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                  Section                            Authorities
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61.04(b)..................................  Waiver of Recordkeeping
61.12(d)(1)...............................  Approval of Alternative
                                             Means of Emission
                                             Limitation
61.13(h)(1)(ii)...........................  Approval of Major
                                             Alternatives to Test
                                             Methods
61.14(g)(1)(ii)...........................  Approval of Major
                                             Alternatives to Monitoring
61.16.....................................  Availability of Information
61.53(c)(4)...............................  List of Approved Design,
                                             Maintenance, and
                                             Housekeeping Practices for
                                             Mercury Chlor-alki Plants
63.6(g)...................................  Approval of Alternative Non-
                                             Opacity Emission Standards
63.6(h)(9)................................  Approval of Alternative
                                             Opacity Standard
63.7(e)(2)(ii) and (f)....................  Approval of Major
                                             Alternative to Test Methods
63.8(f)...................................  Approval of Major
                                             Alternatives to Monitoring
63.10(f)..................................  Waiver of Recordkeeping--all
------------------------------------------------------------------------

III. Implications

a. How Will This Delegation Affect the Regulated Community?

    Once a state or local agency has been delegated the authority to 
implement and enforce a NESHAP, the delegated agency (in this case, 
IDEQ) becomes the primary point of contact with respect to that NESHAP. 
As a result of today's action, Title V sources in Idaho should direct 
questions and compliance issues to IDEQ.
    For those authorities that are NOT delegated--those noted in Table 
2 or any section of 40 CFR 61 and 63 that specifically indicates that 
authority may not be delegated--affected Title V sources should 
continue to work with EPA as their primary contact and submit materials 
directly to EPA for Administrator decision. In these specific cases, 
the delegated agency should be copied on all submittals, questions, and 
requests.
    EPA continues to have primary responsibility to implement and 
enforce Federal regulations that do not have current state or local 
agency delegations. In this action, Idaho is receiving delegation for 
NESHAPs as they apply to Title V sources only. Therefore, EPA is the 
only agency that can implement and enforce NESHAPs as they apply to 
Idaho's area sources (non-Title V sources).

b. Where Will the Regulated Community Send Notifications and Reports?

    Sources subject to delegated NESHAPs (specified in the part 61 and 
part 63 tables at the end of the rule) will now send required 
notifications and reports to IDEQ for their action, and send copies to 
EPA. Sources should

[[Page 3110]]

continue to send to EPA--with a copy to IDEQ--notifications, reports, 
and requests required by authorities not delegated to IDEQ in this 
action.

c. How Will This Delegation Affect Indian Country?

    This delegation to IDEQ to implement and enforce NESHAPs does not 
extend to sources or activities located in Indian country, as defined 
in 18 U.S.C. 1151. ``Indian country'' is defined under 18 U.S.C. 1151 
as: (1) All land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through the 
reservation, (2) all dependent Indian communities within the borders of 
the United States, whether within the original or subsequently acquired 
territory thereof, and whether within or without the limits of a State, 
and (3) all Indian allotments, the Indian titles to which have not been 
extinguished, including rights-of-way running through the same. Under 
this definition, EPA treats as reservations trust lands validly set 
aside for the use of a Tribe even if the trust lands have not been 
formally designated as a reservation. Consistent with previous federal 
program approvals or delegations, EPA will continue to implement the 
NESHAPs in Indian country because IDEQ has not adequately demonstrated 
its authority over sources and activities located within the exterior 
boundaries of Indian reservations and other areas in Indian country.

d. What Will Be IDEQ's Reporting Requirements to EPA?

    In delegating the authority to implement and enforce these rules, 
EPA requires that IDEQ submit the following to EPA:
    (1) IDEQ must input all minimum reportable requirements into the 
AIRS Facility Subsystem (AFS) of the Aerometric Information Retrieval 
System (AIRS) for both point and area sources. IDEQ must enter the 
information into the AIRS/AFS system by September 30 of each year;
    (2) IDEQ must report to EPA all reportable requirements for MACTRAX 
semiannually (MACTRAX provides the summary data for each implemented 
NESHAP that EPA uses to evaluate the Air Toxics Program);
    (3) IDEQ must also provide any additional compliance related 
information to EPA as agreed upon in the Compliance Assurance Agreement 
between EPA and IDEQ;
    (4) IDEQ must submit to EPA copies of determinations issued 
pursuant to delegated General Provisions authorities, listed in Table 1 
above;
    (5) IDEQ must also forward to EPA copies of any notifications 
received pursuant to 40 CFR 63.6(h)(7)(ii) pertaining to the use of a 
continuous opacity monitoring system; and
    (6) IDEQ must submit to EPA's Emission Measurement Center of the 
Emissions Monitoring and Analysis Division copies of any approved 
intermediate changes to test methods or monitoring. (For definitions of 
major, intermediate, and minor alternative test methods or monitoring 
methods, see the July 10, 1998, memorandum from John Seitz, referenced 
above). These intermediate test methods or monitoring changes should be 
sent via mail or facsimile to: Chief, Source Categorization Group A, 
U.S. EPA (MD-19), Research Triangle Park, NC 27711, Facsimile telephone 
number: (919) 541-1039.

e. How Will IDEQ Receive Delegation of Future and Revised Standards?

    IDEQ will receive delegation of future standards by the following 
process:
    (1) IDEQ will send a letter to EPA requesting delegation for future 
NESHAP standards adopted by reference into Idaho regulations;
    (2) EPA will send a letter of response back to IDEQ granting this 
delegation request (or explaining why EPA cannot grant the request);
    (3) IDEQ does not need to send a response back to EPA;
    (4) If EPA does not receive a negative response from IDEQ within 10 
days of EPA's letter to IDEQ, then the delegation will be final 10 days 
after the date of the letter from EPA; and
    (5) Periodically, EPA will publish a notice in the Federal Register 
informing the public of the updated delegation.

f. How Frequently Should IDEQ Update Its Delegation?

    IDEQ should update its incorporations by reference of 40 CFR parts 
61 and 63 standards and request updated delegation annually, as current 
standards are revised and new standards are promulgated. Preferably, 
IDEQ should adopt federal regulations effective as of the most recent 
publication date of 40 CFR parts 61 and 63, which is July first of each 
year.

IV. Summary

    EPA approves IDEQ's request for program approval and delegation of 
authority to implement and enforce specific NESHAPs as they apply to 
major sources required to obtain a part 70 operating permit in Idaho. 
Pursuant to the authority of section 112(l) of the Act, this approval 
is based on EPA's finding that Idaho state law, regulations, and 
resources meet the requirements for program approval and delegation of 
authority specified in 40 CFR 63.91 and applicable EPA guidance.
    The purpose of this delegation is to acknowledge IDEQ's ability to 
implement a NESHAP program and to transfer primary implementation and 
enforcement responsibility from EPA to IDEQ for major sources. Although 
EPA will look to IDEQ as the lead for implementing delegated NESHAPs at 
major sources in Idaho, EPA retains authority under Section 112(l)(7) 
of the Act to enforce any applicable emission standard or requirement 
for major sources, if needed. EPA also retains authority to implement 
and enforce these standards for non-major sources. With program 
approval, IDEQ may choose to request newly promulgated or updated 
standards and expand its program to include non-major sources by way of 
a streamlined process.
    Sources subject to delegated NESHAPs (specified in the part 61 and 
part 63 tables at the end of the rule) will now send required 
notifications and reports to IDEQ for their action, and send a copy to 
EPA. Sources should continue to send notifications, reports, requests, 
etc. pursuant to Authorities not delegated to Idaho to EPA for our 
action, and send a copy to IDEQ.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to grant full delegation of NESHAP 
standards to IDEQ for major sources should adverse comments be filed. 
This rule will be effective March 25, 2002 without further notice 
unless the Agency receives adverse comments by February 22, 2002.
    If the EPA receives such comments, then EPA will publish a notice 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on March 25, 2002 and no 
further action will be taken on the proposed rule.

[[Page 3111]]

V. Administrative Requirements

a. Executive Orders 12866 and 13045

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from review under Executive Order 12866, entitled 
``Regulatory Planning and Review.''
    This rule is not subject to Executive Order 13045, entitled, 
``Protection of Children from Environmental Health Risks and Safety 
Risks,'' because it is not an ``economically significant'' action under 
Executive Order 12866.

b. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by state and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by state and local governments, or EPA 
consults with state and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts state law unless the 
Agency consults with state and local officials early in the process of 
developing the proposed regulation.
    This rule does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it merely approves a state 
program and rules implementing a Federal standard, and does not alter 
the relationship or the distribution of power and responsibilities 
established in the CAA. Thus, Executive Order 13132 does not apply to 
this rule.
    Although Section 6 of the Executive Order does not apply to this 
rule, EPA did consult with representatives of state government in 
developing this rule, and this rule is in response to the State's 
delegation request.

c. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    This rule does not significantly or uniquely affect the communities 
of Indian tribal governments. This action does not involve or impose 
any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

d. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq., 
EPA must prepare a regulatory flexibility analysis assessing the impact 
of any rule on small entities. 5 U.S.C. 603 and 604. Alternatively, EPA 
may certify that the rule will not have a significant economic impact 
on a substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small government 
entities with jurisdiction over populations of less than 50,000.
    Delegation of authority to implement and enforce unchanged federal 
standards under section 112(l) of the CAA does not create any new 
requirements but simply transfers primary implementation authorities to 
the state (or local) agency. Therefore, because this action does not 
impose any new requirements, I certify that it does not have a 
significant impact on any small entities affected.

e. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), 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 
annual costs to state, local, or tribal governments in the aggregate, 
or to 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 delegation action promulgated does not 
include a Federal mandate that may result in estimated annual 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.

f. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major'' rule as defined by 5 U.S.C. 804(2).

g. Petitions for Judicial Review

    Under Section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by March 25, 2002. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it

[[Page 3112]]

extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements (see Section 307(b)(2)).

List of Subjects

40 CFR Part 61

    Environmental protection, Air pollution control, Arsenic, Asbestos, 
Benzene, Beryllium, Hazardous substances, Mercury, Reporting and 
recordkeeping requirements, Vinyl chloride.

40 CFR Part 63

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

    Dated: December 13, 2001.
L. John Iani,
Regional Administrator, Region 10.

    Title 40, chapter I, of the Code of Federal Regulations is amended 
as follows:

PART 61--[AMENDED]

    1. The authority citation for Part 61 continues to read as follows:

    Authority:  42 U.S.C. 7401, 7412, 7413, 7414, 7416, 7601 and 
7602.

Subpart A--General Provisions

    2. Section 61.04 is amended by revising the table in paragraph 
(c)(10) to read as follows:


Sec. 61.04  Address.

* * * * *
    (c) * * *
    (10) * * *

                                                   Delegation Status for Part 61 Standards--Region 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                  AK        ID           Oregon                                            Washington
                              --------------------------------------------------------------------------------------------------------------------------
           Subpart              A D E C   I D E Q   O D E Q   L R A P  E c o l o   B C A A   N W A P   O A P C   P S C A  S C A P C  S W A P C   Y R C A
                                  \1\       \2\       \3\      A \4\    g y \5\      \6\      A \7\     A \8\     A \9\     A \10\     A \11\    A \12\
--------------------------------------------------------------------------------------------------------------------------------------------------------
A. General Provisions \13\...        X     X \2\   ........  ........         X         X         X         X         X          X          X         X
B. Radon from Underground      ........  ........  ........  ........  .........  ........  ........  ........  ........  .........  .........  ........
 Uranium Mines...............
C. Beryllium.................  ........    X \2\   ........  ........         X         X         X         X         X          X          X         X
D. Beryllium Rocket Motor      ........    X \2\   ........  ........         X         X         X         X         X          X          X         X
 Firing......................
E. Mercury...................        X     X \2\   ........  ........         X         X         X         X         X          X          X         X
F. Vinyl Chloride............  ........    X \2\   ........  ........         X         X         X         X         X          X          X         X
H. Emissions of Radionuclides  ........  ........  ........  ........  .........  ........  ........  ........  ........  .........  .........  ........
 other than Radon from Dept
 of Energy facilities........
I. Radionuclides from Federal  ........  ........  ........  ........  .........  ........  ........  ........  ........  .........  .........  ........
 Facilities other than
 Nuclear Regulatory
 Commission Licensees and not
 covered by Subpart H........
J. Equipment Leaks of Benzene        X     X \2\   ........  ........         X         X         X         X         X          X          X         X
K. Radionuclides from          ........  ........  ........  ........  .........  ........  ........  ........  ........  .........  .........  ........
 Elemental Phosphorus Plants.
L. Benzene from Coke Recovery  ........    X \2\   ........  ........         X         X         X         X         X          X          X         X
M. Asbestos..................    X \1\     X \2\   ........  ........     X \5\     X \6\         X     X \8\         X          X          X         X
N. Arsenic from Glass Plants.  ........    X \2\   ........  ........         X         X         X         X         X          X          X         X
O. Arsenic from Primary        ........    X \2\   ........  ........         X         X         X         X         X          X          X         X
 Copper Smelters.............
P. Arsenic from Arsenic        ........    X \2\   ........  ........         X         X         X         X         X          X          X         X
 Production Facilities.......
Q. Radon from Dept of Energy   ........  ........  ........  ........  .........  ........  ........  ........  ........  .........  .........  ........
 facilities..................
R. Radon from Phosphogypsum    ........  ........  ........  ........  .........  ........  ........  ........  ........  .........  .........  ........
 Stacks......................
T. Radon from Disposal of      ........    X \2\   ........  ........  .........  ........  ........  ........  ........  .........  .........  ........
 Uranium Mill Tailings.......
V. Equipment Leaks...........        X     X \2\   ........  ........         X         X         X         X         X          X          X         X
W. Radon from Operating Mill   ........  ........  ........  ........  .........  ........  ........  ........  ........  .........  .........  ........
 Tailings....................
Y. Benzene from Benzene              X     X \2\   ........  ........         X         X         X         X         X          X          X         X
 Storage Vessels.............
BB. Benzene from Benzene       ........    X \2\   ........  ........         X         X         X         X         X          X          X         X
 Transfer Operations.........
FF. Benzene Waste Operations.        X   ........  ........  ........         X         X         X         X         X          X          X        X
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Alaska Department of Environmental Conservation (1/18/97)
Note: Alaska received delegation for Sec.  61.145 and Sec.  61.154 of Subpart M (Asbestos), along with other sections and appendices which are
  referenced in Sec.  61.145, as Sec.  61.145 applies to sources required to obtain an operating permit under Alaska's regulations. Alaska has not
  received delegation for Subpart M for sources not required to obtain an operating permit under Alaska's regulations.
\2\ Idaho Department of Environmental Quality (7/1/00)
Note: Delegation of these Part 61 subparts applies only to those sources in Idaho required to obtain an operating permit under Title V of the Clean Air
  Act.
\3\ Oregon Department of Environmental Quality
\4\ Lane Regional Air Pollution Authority
\5\ Washington Department of Ecology (7/1/00)
Note: Delegation of Part 63 Subpart M applies only to sources required to obtain an operating permit under Title V of the Clean Air Act, including
  Hanford. (Pursuant to RCW 70.105.240, only Ecology can enforce regulations at Hanford)
\6\ Benton Clean Air Authority (7/1/00)
Note: Delegation of Part 63 Subpart M applies only to sources required to obtain an operating permit under Title V of the Clean Air Act, excluding
  Hanford.
\7\ Northwest Air Pollution Authority (7/1/99)
\8\ Olympic Air Pollution Control Authority (July 1, 2000)
Note: Delegation of Part 63 Subpart M applies only to sources required to obtain an operating permit under Title V of the Clean Air Act
\9\ Puget Sound Clean Air Agency (7/1/99)
\10\ Spokane County Air Pollution Control Authority (7/1/00)
\11\ Southwest Air Pollution Control Authority (8/1/98)
\12\ Yakima Regional Clean Air Authority (7/1/00)
\13\ Authorities which are not delegated include: Secs.  61.04(b); 61.12(d)(1); 61.13(h)(1)(ii) for approval of major alternatives to test methods; Sec.
   61.14(g)(1)(ii) for approval of major alternatives to monitoring; Sec.  61.16; Sec.  61.53(c)(4); any sections in the subparts pertaining to approval
  of alternative standards (i.e., alternative means of emission limitations), or approval of major alternatives to test methods or monitoring; and all
  authorities identified in the subparts (i.e., under ``Delegation of Authority'') that cannot be delegated. For definitions of minor, intermediate, and
  major alternatives to test methods and monitoring, see memorandum from John Seitz, Office of Air Quality Planning and Standards, dated July 10, 1998,
  entitled, ``Delegation of 40 CFR Part 63 General Provisions Authorities to State and Local Air Pollution Control Agencies.''

    Note to paragraph (c)(10): Dates in parenthesis indicate the 
effective date of the federal rules that have been adopted by and 
delegated to the state or local air pollution control agency. 
Therefore, any amendments made to these delegated rules after this 
effective date are not delegated to the agency.

PART 63--[AMENDED]

    1. The authority citation for part 63 continues to read as follows:

    Authority: 42 U.S.C. 7401, 7412, 7413, 7414, 7416, 7601 and 
7602.

Subpart E--Approval of State Programs and Delegation of Federal 
Authorities

    2. Section 63.99 is amended by adding paragraph (a)(12) to read as 
follows:

[[Page 3113]]

Sec. 63.99  Delegated federal authorities.

* * * * *
    (a) * * *
    (12) Idaho.
    (i) The following table lists the specific part 63 subparts that 
have been delegated unchanged to the Idaho Department of Environmental 
Quality. The (X) symbol indicates that all or part of the subpart is 
delegated, subject to the conditions and limits in EPA's action:

        Delegation Status of Part 63 NESHAPS--State of Idaho \1\
------------------------------------------------------------------------
                             Subpart                               IDEQ
------------------------------------------------------------------------
A. General Provisions...........................................      X
D. Early Reductions.............................................      X
F. HON-SOCMI....................................................      X
G. HON-Process Vents............................................      X
H. HON-Equipment Leaks..........................................      X
I. HON-Negotiated Leaks.........................................      X
L. Coke Oven Batteries..........................................      X
M. Perchloroethylene Dry Cleaning...............................      X
N. Chromium Electroplating......................................      X
O. Ethylene Oxide Sterilizers...................................      X
Q. Industrial Process Cooling Towers............................      X
R. Gasoline Distribution........................................      X
S. Pulp and Paper...............................................      X
T. Halogenated Solvent Cleaning.................................      X
U. Polymers and Resins I........................................      X
W. Polymers and Resins II--Epoxy................................      X
X. Secondary Lead Smelting......................................      X
Y. Marine Tank Vessel Loading...................................      X
AA. Phosphoric Acid Manufacturing Plants........................      X
BB. Phosphate Fertilizers Production Plants.....................      X
CC. Petroleum Refineries........................................      X
DD. Off-Site Waste and Recovery.................................      X
EE. Magnetic Tape Manufacturing.................................      X
GG. Aerospace Manufacturing & Rework............................      X
HH. Oil and Natural Gas Production Facilities...................      X
II. Shipbuilding and Ship Repair................................      X
JJ. Wood Furniture Manufacturing Operations.....................      X
KK. Printing and Publishing Industry............................      X
LL. Primary Aluminum............................................      X
OO. Tanks--Level 1..............................................      X
PP. Containers..................................................      X
QQ. Surface Impoundments........................................      X
RR. Individual Drain Systems....................................      X
SS. Closed Vent Systems, Control Devices, Recovery Devices and    ......
 Routing to a Fuel Gas System or Process........................
TT. Equipment Leaks--Control Level 1............................      X
UU. Equipment Leaks--Control Level 2............................      X
VV. Oil-Water Separators and Organic-Water Separators...........      X
WW. Storage Vessels (Tanks)--Control Level 2....................      X
YY. Source Categories: Generic MACT.............................      X
CCC. Steel Pickling--HCl Process Facilities and Hydrochloric          X
 Acid Regeneration Plants.......................................
DDD. Mineral Wool Production....................................      X
EEE. Hazardous Waste Combustors.................................      X
GGG. Pharmaceuticals Production.................................      X
HHH. Natural Gas Transmission and Storage Facilities............      X
III. Flexible Polyurethane Foam Production......................      X
JJJ. Polymers and Resins IV.....................................      X
LLL. Portland Cement Manufacturing..............................      X
MMM. Pesticide Active Ingredient Production.....................      X
NNN. Wool Fiberglass Manufacturing..............................      X
OOO. Manufacture of Amino Phenolic Resins.......................      X
PPP. Polyether Polyols Production...............................      X
RRR. Secondary Aluminum Production..............................      X
TTT. Primary Lead Smelting......................................      X
VVV. Publicly Owned Treatment Works.............................      X
XXX. Ferroalloys Production: Ferromanganese & Silicomanganese...     X
------------------------------------------------------------------------
\1\ Delegation is for major sources only and subject to all federal law,
  regulations, policy and guidance.

    (ii) [Reserved]
* * * * *
[FR Doc. 02-1119 Filed 1-22-02; 8:45 am]
BILLING CODE 6560-50-P