[Federal Register Volume 70, Number 193 (Thursday, October 6, 2005)]
[Rules and Regulations]
[Pages 58311-58313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19615]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R10-OAR-2005-ID-0002; FRL-7977-5]


Approval and Promulgation of Implementation Plans; Idaho; 
Correcting Amendment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this final action, EPA is correcting an error in the 
incorporation by reference provisions in the approval of revisions to 
the Rules for the Control of Air Pollution in Idaho (IDAPA 58.01.01) 
published on January 16, 2003 (68 FR 2217). This correction removes the 
list of State toxic air pollutants from the definition of ``regulated 
air pollutant'' in the EPA-approved Idaho State implementation plan.

DATES: This action is effective on November 7, 2005.

ADDRESSES: Copies of the State's request and other supporting 
information used in developing this action are available for inspection 
during normal business hours at the following locations: EPA, Office of 
Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Seattle, 
Washington 98101. Interested persons wanting to examine these documents 
should make an appointment with the appropriate office at least 24 
hours before the visiting day. A reasonable fee may be charged for 
copies.

FOR FURTHER INFORMATION CONTACT: David C. Bray, Office of Air, Waste 
and Toxics, AWT-107, Environmental Protection Agency, Region 10, 1200 
Sixth Ave., Seattle, WA 98101; phone: (206) 553-4253.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. This Action
    A. What Comments Did We Receive on the Proposed Action?
    B. What Is the Basis for This Action?
    C. What Is our Final Action?
III. Statutory and Executive Order Reviews

I. Background

    On January 16, 2003 (68 FR 2217), EPA approved numerous changes to 
the Idaho Department of Environmental Quality (IDEQ) rules as revisions 
to the Idaho State implementation plan (SIP). In that rulemaking, EPA 
did not approve the IDEQ rules for toxic air pollutants or TAP's and 
specifically excluded the toxic air pollutant provisions (IDAPA 
58.01.01.203.03, 210, 223, 585, and 586) from its incorporation by 
reference. See 40 CFR 52.670(c)(37); 68 FR at 2224 (January 16, 2003); 
67 FR 52666, 52668, 52672-73 (August 13, 2002). However, EPA 
inadvertently incorporated a cross reference to the toxic air pollutant 
provisions (Sections 585 and 586) within the IDEQ definition of 
``regulated air pollutant'' (IDAPA 58.01.01.006(84)). It was EPA's 
intention to exclude all aspects of the IDEQ toxic air pollutant 
program from the federally-approved SIP.
    EPA also received a request from the IDEQ to correct the 
inadvertent incorporation by reference. In an October 20, 2004 letter 
to EPA, the Administrator of the IDEQ Air Quality Division requested 
that EPA clarify or correct its approval of the Idaho SIP.
    On July 20, 2005, EPA proposed to correct this error by amending 
the incorporation by reference of the Idaho SIP to exclude paragraph 
(f) from the definition of ``regulated air pollutant'' at IDAPA 
58.01.01.006(84).

II. This Action

A. What Comments Did We Receive on the Proposed Action?

    EPA provided a 30-day review and comment period on the proposal 
published in the Federal Register on July 20, 2005. 70 FR 41652. We 
received no comments on our proposed rulemaking.

B. What Is the Basis for This Action?

    Under section 110(k)(6) of the Clean Air Act, whenever EPA 
determines that its action approving, disapproving, or promulgating any 
plan or plan revision (or part thereof), area designation, 
redesignation, classification, or reclassification was in error, EPA 
may in the same manner as the approval, disapproval, or promulgation 
revise such action as appropriate without requiring any further 
submission from the state. Such determination and the basis thereof 
shall be provided to the state and public. Pursuant to section

[[Page 58312]]

110(k)(6), EPA proposed a revision to the Idaho SIP to correct the 
inadvertent incorporation by reference of the Idaho toxic air pollutant 
provisions within the definition of ``regulated air pollutant.''

C. What Is Our Final Action?

    EPA is taking final action to correct the incorporation by 
reference of the Idaho toxic air pollutant provisions so that IDEQ's 
list of toxic air pollutants will not be considered to be ``regulated 
air pollutants'' for purposes of the federally-approved SIP. All of the 
air pollutants regulated under the federal Clean Air Act will still be 
``regulated air pollutants'' for SIP purposes in accordance with the 
IDEQ definition. The corrected definition meets or exceeds the 
requirements of the federal Clean Air Act and EPA's regulations for 
State implementation plans. The corrected definition is also consistent 
with IDEQ's SIP submittal and EPA's January 16, 2003 approval action 
which specifically excluded IDEQ's toxic air pollutant rules from the 
EPA-approved SIP.

III. Statutory and Executive Order Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
final action is not a ``significant regulatory action'' and therefore 
is not subject to review by the Office of Management and Budget. For 
this reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely corrects the incorporation by reference of the list of toxic air 
pollutants used in regulatory provisions that are not part of the EPA-
approved SIP and does not impose any additional requirements on state, 
local or tribal governments or the private sector. Accordingly, the 
Administrator certifies that this rule will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule 
approves pre-existing requirements under state law and does not impose 
any additional enforceable duty beyond that required by state law, it 
does not contain any unfunded mandate or significantly or uniquely 
affect small governments, as described in the Unfunded Mandates Reform 
Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action merely corrects the 
incorporation by reference of the list of State toxic air pollutants as 
initially requested by the State and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. section 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. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by December 5, 2005. 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 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 in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements.

    Dated: September 20, 2005.
Julie M. Hagensen,
Acting Regional Administrator, Region 10.

0
Chapter I, title 40 of the Code of Federal Regulations is amended as 
follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart N--Idaho

0
2. In Sec.  52.670(c), the table is amended by revising the entry for 
006 to read as follows:


Sec.  52.670  Identification of plan.

* * * * *
    (c) * * *

[[Page 58313]]



                                         EPA-Approved Idaho Regulations
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                                                        State effective
         State citation              Title/subject            date         EPA approval date     Explanations
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 Idaho Administrative Procedures Act (IDAPA) Chapter 58, Rules for Control of Air Pollution in Idaho, Previously
                                   Codified at IDAPA Chapter 39 (Appendix A.3)
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                            58.01.01--RULES FOR THE CONTROL OF AIR POLLUTION IN IDAHO
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                                                  * * * * * * *
006.............................  General Definitions   4/5/00, 3/20/97,  01/16/03, 68 FR     Except (84)(f)
                                                          5/1/95, 5/1/94   2217 10/6/05
                                                                           [Insert page
                                                                           number where the
                                                                           document begins].
 
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[FR Doc. 05-19615 Filed 10-5-05; 8:45 am]
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