Approval and Promulgation of Air Quality Implementation Plans; Idaho; Revised Format for Materials Being Incorporated by Reference

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; notice of administrative change.

SUMMARY:

EPA is revising the format of 40 CFR part 52 for materials submitted by the State of Idaho that are incorporated by reference (IBR) into its State Implementation Plan (SIP). The regulations affected by this format change have all been previously submitted by Idaho and approved by EPA.

Effective Date:

This action is effective January 25, 2005.

ADDRESSES:

SIP materials which are incorporated by reference into 40 CFR part 52 are available for inspection at the following locations: US Environmental Protection Agency, Region 10, Office of Air, Waste, and Toxics (OAWT-107), 1200 Sixth Avenue, Seattle, Washington 98101; U.S. Environmental Protection Agency Docket Center, EPA West, 1301 Constitution Avenue, NW., Room B102, Washington, DC 20004; and the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

FOR FURTHER INFORMATION CONTACT:

Donna Deneen at the above Region 10 address or at (206) 553-6706.

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever “we” or “our” is used it means the EPA.

Table of Contents

I. Change of Incorporation by Reference (IBR) Format

A. Description of a SIP

B. How EPA Enforces the SIP

C. How the State and EPA Update the SIP

D. How EPA Compiles the SIP

E. How EPA Organizes the SIP Compilation

F. Where You Can Find a Copy of the SIP Compilation

G. The Format of the New Identification of Plan Section

H. When a SIP Revision Becomes Federally Enforceable

I. The Historical Record of SIP Revision Approvals

II. What EPA is Doing in This Action

III. Good Cause Exemption

IV. Statutory and Executive Order Review

A. General Requirements

B. Submission to Congress and the Comptroller General

C. Petitions for Judicial Review

I. Change of Incorporation by Reference (IBR) Format

This format revision will affect the “identification of plan” section of 40 CFR part 52, as well as the format of the SIP materials that will be available for public inspection at NARA; Air and Radiation Docket and Information Center; and the EPA Region 10 Office. The sections of 40 CFR part 52, pertaining to provisions promulgated by EPA or state-submitted materials not subject to IBR review, remain unchanged.

A. Description of a SIP

Each state has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring network, attainment demonstrations, and enforcement mechanisms.

B. How EPA Enforces the SIP

Each SIP revision submitted by a state must undergo reasonable notice and public hearing at the state level, and SIPs submitted to EPA to attain or maintain the NAAQS must include enforceable emission limitations and other control measures, schedules and timetables for compliance.

EPA evaluates submitted SIPs to determine if they meet the Clean Air Act's requirements. If a SIP meets the Clean Air Act's requirements, EPA will approve the SIP. EPA's notice of approval is published in the Federal Register and the approval is then codified in the Code of Federal Regulations (CFR) at 40 CFR part 52. Once EPA approves a SIP, it is enforceable by EPA and citizens in federal district court.

The full text of the state regulation approved by EPA is not reproduced in its entirety in 40 CFR part 52, but is incorporated by reference (“IBR”). This means that EPA has approved a given state regulation with a specific effective date. The public is referred to the location of the full text version should they want to know which measures are contained in a given SIP (see “I.F. Where You Can Find a Copy of the SIP Compilation”). The information provided allows EPA and the public to monitor the extent to which a state implements the SIP to attain and maintain the NAAQS and to take enforcement action if necessary.

C. How the State and EPA Update the SIP

The SIP is a living document which the state can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference Federally-approved SIPs.

EPA began the process of developing: (1) A revised SIP document for each state that would be incorporated by reference under the provisions of 1 CFR part 51; (2) a revised mechanism for announcing EPA approval of revisions to an applicable SIP and updating both the IBR document and the CFR; and (3) a revised format of the “identification of plan” sections for each applicable subpart to reflect these revised IBR procedures.

The description of the revised SIP document, IBR procedures, and “identification of plan” format are discussed in further detail in the May 22, 1997, Federal Register document.

D. How EPA Compiles the SIP

The Federally-approved regulations and source-specific permits (entirely or portions thereof) submitted by each state agency have been organized by EPA into a SIP compilation. The SIP Compilation contains the updated regulations and source-specific requirements approved by EPA through previous rulemaking actions in the Federal Register. The compilations are in hard copy and will be updated, primarily on an annual basis.

E. How EPA Organizes the SIP Compilation

Each compilation contains two parts. Part 1 contains the state regulations and Part 2 contains the source-specific requirements that have been approved as part of the SIP. Each part has a table of contents identifying each regulation or each source-specific requirement. The effective date in the tables indicates the date of the most recent revision to a particular regulation. The table of contents in the compilation corresponds to the table of contents published in 40 CFR part 52 for each state. The EPA Regional Offices have the primary responsibility for ensuring accuracy and updating the compilations.

F. Where You Can Find a Copy of the SIP Compilation

EPA Region 10 developed and will maintain the annually updated hard copy of the compilation for Idaho. The hard copy of the annually updated compilation will also be maintained at the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, Room B-108 (Mail Code 6102T), 1301 Constitution Ave., NW., Washington, DC 20460; and NARA. For information on the availability of this material at NARA, call 202-741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html . Copies of Idaho regulations approved by EPA are also available on the following web page: www.epa.gov/r10earth/sips.htm.

G. The Format of the New Identification of Plan Section

In order to better serve the public, EPA revised the organization of the “identification of plan” section and included additional information to clarify the enforceable elements of the SIP.

The revised identification of plan section contains five subsections:

(a) Purpose and scope;

(b) Incorporation by reference;

(c) EPA-approved regulations;

(d) EPA-approved source-specific requirements; and

(e) EPA-approved nonregulatory provisions such as transportation control measures, statutory provisions, control strategies, monitoring networks, etc.

H. When a SIP Revision Becomes Federally Enforceable

All revisions to the applicable SIP become Federally enforceable as of the effective date of the revisions to paragraphs (c), (d) or (e) of the applicable identification of plan found in each subpart of 40 CFR part 52.

I. The Historical Record of SIP Revision Approvals

To facilitate enforcement of previously approved SIP provisions and to provide a smooth transition to the new SIP processing system, we are retaining the original identification of plan section (see 40 CFR 52.677). This section previously appeared in 40 CFR 52.670. After an initial two-year period, EPA will review its experience with the new system and its ability to enforce previously approved SIP measures, and will decide whether or not to retain the identification of plan appendices for some further period.

II. What EPA Is Doing in This Action

Today's action constitutes a “housekeeping” exercise to ensure that all previous revisions to the state SIP-approved regulations and source-specific requirements are accurately reflected in 40 CFR part 52. When EPA receives a formal SIP revision request, the Agency must publish the proposed revision in the Federal Register and provide for public comment before approval.

Note that the revisions in today's rule include State source-specific requirements that may no longer be appropriate for inclusion in the Idaho SIP. These permits, some of which were issued by the State as early as 1979, are listed in section (d) because EPA previously approved them as state source-specific requirements and they continue to be a part of the Federally-approved SIP until the Idaho Department of Environmental Quality submits a SIP revision meeting Clean Air Act requirements requesting that such permits be removed from the SIP and EPA approves the SIP revision. EPA does not have the authority to remove these permits in the absence of a demonstration that their removal would not interfere with attainment or maintenance of the NAAQS, violate any prevention of significant deterioration increment or result in visibility impairment. Idaho Department of Environmental Quality may request removal by submitting such a demonstration to EPA as a SIP revision. EPA will take action on Idaho's request after providing for public comment.

III. Good Cause Exemption

EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs.

Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by updating citations.

IV. Statutory and Executive Order Review

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does 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), nor will it 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 rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. This rule does not involve technical standards; 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. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). EPA's compliance with these statutes and Executive Orders for the underlying rules are discussed in previous actions taken on the State's rules.

B. 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. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. Today's action simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of January 25, 2005. 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. These corrections to the identification of plan for Idaho is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

EPA has also determined that the provisions of section 307(b)(1) of the Clean Air Act pertaining to petitions for judicial review are not applicable to this action. Prior EPA rulemaking actions for each individual component of the Idaho SIP compilation had previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA sees no need in this action to reopen the 60-day period for filing such petitions for judicial review for these “identification of plan” reorganization actions for Idaho.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides

Part 52 of chapter I, title 40, Code of Federal Regulations, is amended as follows:

PART 52—[AMENDED]

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

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

Subpart N—Idaho

2. Section 52.670 is redesignated as § 52.677 and the heading and paragraph (a) are revised to read as follows:

3. A new § 52.670 is added to read as follows:

4. Remove and reserve § 52.679.