[Federal Register Volume 82, Number 91 (Friday, May 12, 2017)]
[Rules and Regulations]
[Pages 22083-22086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09542]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2016-0584; FRL-9960-43-Region 10]


Air Plan Approval; ID, Updates to Incorporations by Reference

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve, and incorporate by reference, portions of 
Idaho's April 28, 2016, State Implementation Plan submittal (SIP 
submittal) that update the incorporation by reference of federal air 
quality regulations. We note that this action does not address the 
changes

[[Page 22084]]

Idaho withdrew related to transportation conformity requirements.

DATES: This rule is effective July 11, 2017, without further notice, 
unless the EPA receives adverse comment by June 12, 2017. If the EPA 
receives adverse comment, we will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2016-0584 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e. on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Randall Ruddick at (206) 553-1999, or 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, it is intended to refer to the EPA.

Table of Contents

I. Background
II. Analysis of Rule Updates
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Orders Review

I. Background

    Section 110 of the Clean Air Act (CAA) governs the process by which 
a state submits air quality protection requirements to the EPA for 
approval into the State Implementation Plan (SIP). The SIP is the 
state's plan to implement, maintain, and enforce National Ambient Air 
Quality Standards (NAAQS) set by the EPA. Idaho regularly updates the 
Rules for the Control of Air Pollution in Idaho (IDAPA 58.01.01) to 
reflect changes to the NAAQS and to improve implementation, 
maintenance, and enforcement of those standards. We note that Idaho 
incorporates by reference portions of certain federal regulations 
directly into the SIP. The state generally submits an annual update to 
the EPA to keep rules consistent with federal requirements.

II. Analysis of Rule Updates

A. Incorporations by Reference

    On April 28, 2016, Idaho submitted revisions to state air quality 
rules at IDAPA 58.01.01 to the EPA for approval into the SIP. Idaho 
revised section .03 of IDAPA 58.01.01.107 Incorporations by Reference 
by updating the citation dates that incorporate federal provisions and 
the effective dates of the incorporated federal provisions from July 1, 
2014 to July 1, 2015. IDAPA 58.01.01.107.03.a incorporates by reference 
40 CFR part 51, Requirements for Preparation, Adoption, and Submittal 
of Implementation Plans, with the exception of certain visibility-
related provisions, effective as of July 1, 2015. We note that Idaho 
did not submit updates to the incorporation of federal provisions 
relied on as part of the State's nonattainment area major stationary 
source preconstruction permitting program.
    IDAPA 58.01.01.03.b, .d, and .e incorporate the following 
provisions effective as of July 1, 2015: National Primary and Secondary 
Ambient Air Quality Standards, 40 CFR part 50; Ambient Air Monitoring 
Reference and Equivalent Methods, 40 CFR part 53; and Ambient Air 
Quality Surveillance, 40 CFR part 58. We find that paragraphs .b, .d, 
and .e are consistent with CAA requirements.
    IDAPA 58.01.01.03.c incorporates the Approval and Promulgation of 
Implementation Plans, 40 CFR part 52, subparts A and N, and appendices 
D and E. This includes the federal Prevention of Significant 
Deterioration (PSD) permitting rules at 40 CFR 52.21 and 52.22, as 
effective July 1, 2015. The EPA promulgated revisions to 40 CFR 52.21 
and repealed 52.22 since July 1, 2015 in response to a court remand and 
vacatur. Specifically, on June 23, 2014, the United States Supreme 
Court, in Utility Air Regulatory Group (UARG) v. EPA,\1\ issued a 
decision addressing the application of PSD permitting to greenhouse gas 
(GHG) emissions. The Supreme Court said the EPA may not treat GHGs as 
air pollutants for purposes of determining whether a source is a major 
source (or modification thereof) required to obtain a PSD permit. The 
Court also said the EPA could continue to require that PSD permits, 
otherwise required based on emissions of pollutants other than GHGs, 
contain limits on GHG emissions based on the application of Best 
Available Control Technology (BACT). In response to the UARG decision, 
and the subsequent Amended Judgment issued by the D.C. Circuit (Amended 
Judgment),\2\ the EPA revised the federal PSD rules to allow for the 
rescission of PSD permits that are no longer required under these 
decisions, 80 FR 26183 (May 7, 2015), and to remove the regulatory 
provisions that were specifically vacated by the Amended Judgment, 80 
FR 50199 (August 19, 2015) (removing 40 CFR 51.166(b)(48)(v), 
52.21(b)(49)(v), 52.22, 70.12, and 71.13). In addition, the EPA has 
proposed to revise provisions in the PSD permitting regulations 
applicable to GHGs to fully conform with UARG and the Amended Judgment, 
but those revisions have not been finalized. 81 FR 68110 (Oct. 3, 
2016).
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    \1\ 134 S.Ct. 2427 (2014).
    \2\ Coalition for Responsible Regulation v. EPA, Nos. 09-1322, 
10-073, 10-1092, and 10-1167 (April 15, 2015).
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    Idaho's adoption by reference of 40 CFR 52.21 and 52.22 as of July 
1, 2015 included the May 7, 2015 revisions to 40 CFR 52.21(w),\3\ 
providing a mechanism for Idaho to rescind PSD permits that are no 
longer required in light of UARG and the Amended Judgment, but did not 
include the August 19, 2015 revisions to the federal PSD program 
removing the PSD provisions vacated by the Amended Judgment. The Idaho 
SIP currently contains the vacated GHG provisions (through the 
incorporation by reference of a previous version of 40 CFR 52.21), so 
the EPA's approval of the CFR incorporation by reference update to July 
1, 2015 does not change the Idaho SIP with respect to the vacated 
provisions. However, the now-vacated portions of 40 CFR 52.21 
incorporated into the Idaho SIP-approved PSD program are no longer 
enforceable. The EPA believes this portion of the Idaho SIP should be 
revised in light of the D.C. Circuit's Amended Judgment, but the EPA 
also notes that these provisions may not be implemented even prior to 
their removal from the Idaho SIP because the court decisions described 
above have determined these parts of the EPA's regulations are 
unlawful. Further, Idaho has advised the EPA that

[[Page 22085]]

it is not currently enforcing these provisions in light of the Supreme 
Court decision and that the Idaho Department of Environmental Quality 
has adopted an update to its incorporation by reference of the CFR, 
including the August 19, 2015 revisions to 40 CFR 52.21 and 52.22, 
which update awaits final approval by the Idaho Legislature, likely to 
occur in March of 2017. We are therefore approving paragraph .c with 
the understanding that the GHG provisions vacated by the court 
decisions cannot be implemented and are not being enforced by Idaho. We 
are also approving Idaho's revisions to IDAPA 58.01.01.03.a, .b, .d, 
and .e as described in this section.
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    \3\ Idaho's 2015 adoption by reference did not include the 
additional revisions to the permit rescission provisions in 40 CFR 
52.21(w) published on November 7, 2016. 81 FR 78043. These revisions 
did not specifically relate to GHGs.
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B. Procedures and Requirements for Permits To Construct

    Idaho revised IDAPA 58.01.01.200 Procedures and Requirements for 
Permits to Construct to clarify that the state incorporates the federal 
definitions of ``major stationary source'' and ``major modification'' 
applicable in attainment and unclassifiable areas, in addition to the 
federal definitions of those terms applicable in nonattainment areas, 
effective as of the citation date in IDAPA 58.01.01.107, which is July 
1, 2015. We are approving the clarification.

III. Final Action

    The EPA is approving and incorporating by reference the following 
revisions to the Idaho SIP submitted on April 28, 2016:
     IDAPA 58.01.01.107 Incorporations by Reference, except 
.03.f through .p, and with respect to .a, the incorporation by 
reference of 40 CFR 51.165 (State effective March 25, 2016); and
     IDAPA 58.01.01.200 Procedures and Requirements for Permits 
to Construct (State effective March 25, 2016).
    We note that this action does not address the changes to IDAPA 
58.01.01.107.q, .563, and .564 related to transportation conformity 
requirements. Idaho withdrew these three revisions.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference as described 
in the amendments to 40 CFR part 52 set forth below. These materials 
have been approved by the EPA for inclusion in the State Implementation 
Plan, have been incorporated by reference by the EPA into that plan, 
are fully federally-enforceable under sections 110 and 113 of the CAA 
as of the effective date of the final rulemaking of the EPA's approval, 
and will be incorporated by reference by the Director of the Federal 
Register in the next update to the SIP compilation.\4\ The EPA has 
made, and will continue to make, these materials generally available 
through http://www.regulations.gov and/or at the EPA Region 10 Office 
(please contact the person identified in the FOR FURTHER INFORMATION 
CONTACT section of this preamble).
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    \4\ 62 FR 27968 (May 22, 1997).
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V. Statutory and Executive Orders Review

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because this action does not involve technical standards; and
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian Tribe 
has demonstrated that a Tribe has jurisdiction. In those areas of 
Indian country, the rule does not have Tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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. The EPA will submit a report containing this action 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. 
804(2).
    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 July 11, 2017. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides.

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

    Dated: February 7, 2017.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.

    For the reasons set forth in the preamble, 40 CFR part 52 is 
amended as follows:

[[Page 22086]]

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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, the table in paragraph (c) is amended by revising 
entries ``107'' and ``200'' to read as follows:


Sec.  52.670  Identification of plan.

* * * * *
    (c) * * *

                                   EPA-Approved Idaho Regulations and Statutes
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      State citation           Title/subject     State effective date    EPA approval date       Explanations
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      Idaho Administrative Procedures Act (IDAPA) 58.01.01--Rules for the Control of Air Pollution in Idaho
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                                                  * * * * * * *
107......................  Incorporation by      3/25/2016, 3/20/      5/12/2017, [insert    Except Section
                            Reference.            2014, 3/30/2007, 7/   Federal Register      107.03.f through
                                                  1/1997, 5/1/1994.     citation].            107.03.p, and with
                                                                                              respect to
                                                                                              107.03.a the
                                                                                              incorporation by
                                                                                              reference of 40
                                                                                              CFR 51.165.
 
                                                  * * * * * * *
200......................  Procedures and        3/25/2016...........  5/12/2017, [insert    ...................
                            Requirements for                            Federal Register
                            Permits to                                  citation].
                            Construct.
 
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[FR Doc. 2017-09542 Filed 5-11-17; 8:45 am]
 BILLING CODE 6560-50-P