Delegation of Authority: State of Idaho To Implement or Enforce Additional or Revised National Emission Standards for Hazardous Air Pollutants and New Source Performance Standards

Delegation of Authority to the State of Idaho To Implement or Enforce Additional or Revised National Emission Standards for Hazardous Air Pollutants and New Source Performance Standards

Dates

On May 10, 2023, the EPA sent Idaho two letters acknowledging that Idaho's delegation of authority to implement and enforce certain Federal NSPS and NESHAP had been updated.

Supplementary Information

I. Delegation of NESHAP

Section 112(l) of the Clean Air Act (CAA) provides for the regulation of hazardous air pollutants through the promulgation of NESHAP. Those NESHAP promulgated prior to the CAA Amendments of 1990 are found in 40 Code of Federal Regulations (CFR) part 61. Those NESHAP promulgated subsequent to the CAA Amendments of 1990 are found in 40 CFR part 63. 40 CFR part 63 subpart E contains the criteria and procedures for "straight delegation" (delegation of unchanged standards) of NESHAP. See 40 CFR 63.91.

On April 20, 2023, Idaho notified the EPA that the State had updated its incorporation by reference of Federal NSPS and NESHAP to include many such standards, as they were published in final form in the CFR dated July 1, 2022. On May 10, 2023, the EPA sent Idaho a letter acknowledging that Idaho now has the authority to implement and enforce the NESHAP as specified by Idaho in its notice to the EPA, as provided for under previously approved delegation mechanisms. All notifications, applications, reports, and other correspondence required pursuant to the delegated NESHAP must be submitted to both the EPA Region 10 and to the Idaho Department of Environmental Quality, unless the delegated standard specifically provides that such submittals may be sent to the EPA or a delegated State. In such cases, the submittals should be sent only to the Idaho Department of Environmental Quality. A copy of the EPA's letter to Idaho follows:

Ms. Tiffany Floyd

Air Quality Division Administrator

Idaho Department of Environmental Quality

1410 North Hilton

Boise, Idaho 83706

Re: Approval of the Idaho Department of Environmental Quality's Request for Updated Delegation of Authority for National Emissions Standards for Hazardous Air Pollutants

Dear Ms. Floyd:

This letter is in response to your April 20, 2023, request to update and continue the delegation of certain National Emission Standards for Hazardous Air Pollutants. Consistent with the approved mechanism for streamlined delegation as described in 67 FR 3106 (January 23, 2002), the U.S. Environmental Protection Agency hereby grants this updated delegation request, as described below, to the Idaho Department of Environmental Quality for those sources under your jurisdiction for the identified NESHAP in effect on July 1, 2022.

Delegation Request

You have requested to update delegation of the 40 CFR parts 61 and 63 NESHAP standards that were previously delegated to IDEQ and to obtain delegation of new standards that the EPA has promulgated since your last delegation.

1. Your request for delegation of 40 CFR part 61, subpart M was limited to sources required to obtain permits under title V of the Clean Air Act.

2. Your request for delegation excluded subparts under 40 CFR part 61 regulating radon or radionuclides, specifically: subparts B, H, I, K, Q, R, T, and W.

3. Your request for delegation of all subparts of 40 CFR part 63 except N, AAAA, ZZZZ, BBBBBB, HHHHHH, JJJJJJ, WWWWWW, XXXXXX, and DDDDDDD, was limited to sources required to obtain permits under title V of the Clean Air Act.

IDEQ demonstrated that on March 28, 2023, IDEQ adopted the identified provisions of 40 CFR parts 61 and 63 unchanged and as in effect on July 1, 2022, into IDEQ's regulations in IDAPA 58.01.01.107.03(g) and (i).

Delegation of Authority

The EPA has determined that IDEQ's regulations continue to provide adequate and effective procedures for implementing and enforcing the NESHAP. Accordingly, the EPA hereby approves your request for an updated delegation of authority to implement and enforce the NESHAP standards identified in Enclosures A and B, subject to the following terms and conditions:

1. As requested by IDEQ:

a. The delegation of 40 CFR part 61, subpart M and all subparts of 40 CFR part 63 except N, AAAA, ZZZZ, BBBBBB, HHHHHH, JJJJJJ, WWWWWW, XXXXXX, and DDDDDDD is limited to implementation and enforcement of the NESHAP as of July 1, 2022, and is limited to sources that are required to obtain a permit under Idaho's title V program, regardless of whether a permit has yet been issued.

b. The delegation of all other requested NESHAP is limited to implementation and enforcement of the NESHAP as of July 1, 2022.

2. The EPA is not delegating the following provisions under 40 CFR part 63 to IDEQ:

a. Subpart B, which implements sections 112(g) and 112(j) of the Clean Air Act. The EPA has previously stated that a part 70 permitting authority does not need to apply for approval in order to use its own program to implement section 112(g). Furthermore, section 112(j) is designed to use the title V permit process as the primary vehicle for establishing requirements. Therefore, delegation is not required to implement sections 112(g) and 112(j) and 40 CFR subpart B. See 59 FR 26429, 26447 (May 20, 1994) and 61 FR 68384, 68397 (December 27, 1996).

b. Subpart C, which lists hazardous air pollutants that have been deleted or refined. This subpart grants no authority that is necessary to implement or enforce the program and is therefore not delegable.

c. Subpart D, which implements section 112(d) of the Clean Air Act. Because this subpart explicitly states that it applies to a state or local agency acting pursuant to a permit program approved under title V of the Clean Air Act, delegation is unnecessary.

d. Subpart E, which establishes procedures for the EPA approval of state rules, programs, or other requirements to implement and enforce section 112 Federal rules and is not delegable.

3. The EPA is not delegating the provisions of the Consolidated Air Rule under 40 CFR part 65. As proposed on October 28, 1998 (63 FR 57748, 57784-57786) and promulgated on December 14, 2000, (65 FR 78268, 78272), the CAR comprises alternative compliance approaches to referencing subparts in 40 CFR parts 60 and 63. Therefore, formal delegation of the CAR is not required provided the state has received formal delegation of the referencing subpart.

4. Note that certain authorities are automatically granted to you because you have an approved part 70 program (see for example, 40 CFR 63.6(i)(1)). See 66 FR 48211, 48213 (September 19, 2001). However, you must have authority to implement and enforce the particular standard against the source as a matter of state law in order to implement this authority as a matter of Federal law.

5. The EPA is delegating the identified Federal standards as in effect on July 1, 2022. New NESHAP or NESHAP that are revised substantively after that date are not delegated to your agency; these remain the responsibility of the EPA.

a. Acceptance of this delegation does not commit your agency to request or accept delegation of future NESHAP standards and requirements.

b. The EPA encourages your agency to update your NESHAP delegation on an annual basis. This could coincide with the updating of the adoption by reference of the Federal NESHAP standards, which is important for maintaining the EPA's approval of your part 70 permitting program.

6. The EPA is not delegating authorities under 40 CFR parts 61 and 63 that specifically indicate they cannot be delegated, that require rulemaking to implement, that affect the stringency of the standard, equivalency determinations, or where national oversight is the only way to ensure national consistency.

7. The EPA is not delegating standards that have been vacated as a matter of Federal law.

8. This delegation is subject to the terms and conditions of the EPA's previous NESHAP delegations to IDEQ, 61 FR 64622 (December 6, 1996) and 67 FR 3106 (January 23, 2002), as updated by this letter.

9. Implementation and enforcement of the delegated NESHAP are subject to the CAA 105 Air Base Grant Agreement Workplan agreement between the state of Idaho and the EPA and its successor documents. The Agreement defines roles and responsibilities, including timely and appropriate enforcement response and the maintenance of the Integrated Compliance Information System for Air via the Exchange Network.

10. Enforcement of these delegated NESHAP in your jurisdiction will be the primary responsibility of your agency. Nevertheless, the EPA may exercise its concurrent enforcement authority pursuant to sections 112(l)(7) and 113 of the Clean Air Act and 40 CFR 63.90(d)(2) with respect to sources that are subject to the NESHAP.

11. Your agency and the EPA should communicate sufficiently to ensure that each is fully informed and current regarding interpretation of regulations (including any unique questions about applicability) and the compliance status of subject sources in your jurisdiction.

a. Any records or reports provided to or otherwise obtained by your agency should be made available to the EPA upon request.

b. In accordance with 40 CFR 61.16 and 63.15, the availability to the public of information provided to or otherwise obtained by the EPA in connection with this delegation shall be governed by 40 CFR part 2.

12. Your agency will be the recipient of all notifications and reports and be the point of contact for questions and compliance issues for these delegated NESHAP. The EPA may request notifications and reports from owners/operators and/or your agency, if needed.

13. Your agency will work with owners and operators of affected facilities subject to a NESHAP subpart to ensure all required information is submitted to your agency. Your assistance is requested to ensure that this information, including excess emission reports and summaries, is submitted to the EPA upon request, if needed.

14. Your agency will require affected facilities to use the methods specified in 40 CFR parts 61 and 63, as applicable, in performing source tests pursuant to the regulations. See 40 CFR 61.7 and 63.7.

15. Changes and alternatives:

a. For part 61 standards, your agency is not delegated the authorities under 40 CFR 61.04(b), 61.04(c), 61.05(c), 61.11, 61.12(d), 61.13(h)(1)(ii), 61.14(d), 61.14(g)(1)(ii), and 61.16. Such authorities and approvals remain the responsibility of the EPA.

b. For part 63 standards, your agency is not delegated the Category II authorities in 40 CFR 63.91(g)(2)(ii). Such authorities and approvals remain the responsibility of the EPA.

c. Your agency must maintain a record of all approved alternatives to monitoring, testing, and recordkeeping/reporting requirements and provide this list of alternatives to the EPA semi-annually or more frequently if requested by the EPA. The EPA may audit any approved alternatives and disapprove any that it determines are inappropriate, after discussion with your agency. If changes are disapproved, your agency must notify the owner/operator that it must revert to the original applicable monitoring, testing, recordkeeping, and/or reporting requirements. Also, in cases where the owner/operator does not maintain the conditions which prompted the approval of the alternatives to the monitoring, testing, recordkeeping, and/or reporting requirements, your agency must require the source to revert to the original monitoring, testing, recordkeeping, and reporting requirements, or more stringent requirements, if justified.

16. Your agency's authority to implement and enforce NESHAP under this delegation does not extend to sources or activities located in Indian Country, as defined in 18 U.S.C. 1151. Consistent with previous Federal program approvals or delegations, the EPA will continue to implement the NESHAP in Indian Country because your agency has not demonstrated that it has authority over sources and activities located within the exterior boundaries of Indian reservations and in other areas of Indian Country.

17. The EPA Administrator delegated to the EPA, Region 10 the authority to delegate the NESHAP to any state or local agency. A state or local agency that receives delegation from the EPA, Region 10 does not have the federally recognized authority to further delegate the NESHAP.

18. 40 CFR 63.96(b) contains the applicable procedures governing withdrawal of this delegation by the EPA or from this delegation by IDEQ, as applicable.

Unless we receive negative comments from you within ten days, this delegation is final and will be effective ten days from the date of this letter. Otherwise, no further correspondence to the EPA is needed from IDEQ to make this delegation effective. We will periodically publish a notice in the Federal Register informing the public of IDEQ's updated delegation. If you have any questions, please contact Geoffrey Glass of my staff at (206) 553-1847 or [email protected].

Sincerely,

Krishna Viswanathan, Director

Air and Radiation Division

II. Delegation of NSPS

Section 111(b) of the CAA requires the EPA to establish standards of performance for new stationary sources of air pollution through the promulgation of NSPS. These NSPS are found in 40 CFR part 60. According to section 111(c) of the CAA and 40 CFR 60.4(b), States may submit plans for approval by the Administrator to implement and enforce NSPS. Neither section 111 of the CAA nor 40 CFR part 60, however, prescribe a mechanism for such a delegation of authority.

On April 20, 2023, Idaho notified the EPA that the State had updated its incorporation by reference of Federal NSPS to include many such standards, as they were published in final form in the Code of Federal Regulations (CFR) dated July 1, 2022. On May 10, 2023, the EPA sent Idaho a letter acknowledging that Idaho now has the authority to implement and enforce the NSPS as specified by Idaho in its notice to the EPA, as provided for under previously approved delegation mechanisms. All notifications, applications, reports, and other correspondence required pursuant to the delegated NSPS must be submitted to both the EPA Region 10 and to the Idaho Department of Environmental Quality, unless the delegated standard specifically provides that such submittals may be sent to the EPA or a delegated State. In such cases, the submittals should be sent only to the Idaho Department of Environmental Quality. A copy of the EPA's letter to Idaho follows:

Ms. Tiffany Floyd

Air Quality Division Administrator

Idaho Department of Environmental Quality

1410 North Hilton

Boise, Idaho 83706

Re: Approval of the Idaho Department of Environmental Quality's Request for Updated Delegation of Authority for New Source Performance Standards

Dear Ms. Floyd:

This letter is in response to your April 20, 2023, request to update and continue the delegation of authority to implement and enforce certain New Source Performance Standards, 40 CFR part 60. After review of your request, the U.S. Environmental Protection Agency hereby grants this updated delegation request, as described below, to the Idaho Department of Environmental Quality for those sources under your jurisdiction for the identified NSPS in effect on July 1, 2022.

Delegation Request

You have requested to update delegation of the 40 CFR part 60 NSPS that were previously delegated to IDEQ and to obtain delegation of new standards that the EPA has promulgated since your last delegation.

IDEQ demonstrated that on March 28, 2023, IDEQ adopted the identified provisions of 40 CFR part 60 unchanged and as in effect on July 1, 2022, into IDEQ's regulations in IDAPA 58.01.01.107.03(f).

Delegation of Authority

The EPA has determined that IDEQ's regulations continue to provide adequate and effective procedures for implementing and enforcing the NSPS. Accordingly, the EPA hereby approves your request for an updated delegation of authority to implement and enforce the NSPS identified in Enclosure A, subject to the following terms and conditions:

1. As requested by IDEQ the delegation of all requested NSPS is limited to implementation and enforcement of the NSPS as of July 1, 2022.

2. The EPA is not delegating the following provisions under 40 CFR part 60 to IDEQ:

a. Subparts B and Ba, which apply to the adoption and submittal of state plans and actions taken to approve or disapprove such plans by the Administrator of the EPA. These subparts are not delegable.

b. Subpart C, which states that several other subparts contain emission guidelines and compliance times for the control of certain designated pollutants in accordance with section 111(d) and section 129 of the Clean Air Act and subpart B of 40 CFR part 60. This subpart establishes no authority that is necessary to implement or enforce the program and is not delegable.

c. Subparts Cb, Cc, Cd, Ce, Cf, BBBB, DDDD, FFFF, MMMM, and UUUUa. These subparts specify the requirements for approval of state plans for the control of certain designated pollutants in accordance with section 111(d) and section 129 of the Clean Air Act and subpart B or Ba of 40 CFR part 60.

3. The EPA is not delegating the provisions of the Consolidated Air Rule under 40 CFR part 65. As proposed on October 28, 1998, (63 FR 57748, 57784-57786) and promulgated on December 14, 2000, (65 FR 78268, 78272), the CAR comprises alternative compliance approaches to referencing subparts in 40 CFR parts 60 and 63. Therefore, formal delegation of the CAR is not required provided the state has received formal delegation of the referencing subpart.

4. The EPA is delegating the identified Federal standards as in effect on July 1, 2022. New NSPS or NSPS that are revised substantively after that date are not delegated to your agency; these remain the responsibility of the EPA.

a. Acceptance of this delegation does not commit your agency to request or accept delegation of future NSPS standards and requirements.

b. The EPA encourages your agency to update your NSPS delegation on an annual basis. This could coincide with the updating of the adoption by reference of the Federal NSPS standards, which is important for maintaining the EPA's approval of your part 70 permitting program.

5. The EPA is not delegating authorities under 40 CFR part 60 that specifically indicate they cannot be delegated, that require rulemaking to implement, that affect the stringency of the standard, equivalency determinations, or where national oversight is the only way to ensure national consistency.

6. The EPA is not delegating standards that have been vacated as a matter of Federal law.

7. Implementation and enforcement of the delegated NSPS are subject to the CAA 105 Air Base Grant Agreement Work Plan between the state of Idaho and the EPA and its successor documents. The agreement defines roles and responsibilities, including timely and appropriate enforcement response and the maintenance of the Integrated Compliance Information System for Air via the Exchange Network. Your agency will ensure that all relevant source notification and report information is entered as provided in the agreement into the specified EPA database system to meet your recordkeeping/reporting requirements.

8. Enforcement of these delegated NSPS in your jurisdiction will be the primary responsibility of your agency. Nevertheless, the EPA may exercise its concurrent enforcement authority pursuant to sections 111(d)(2) and 113 of the Clean Air Act with respect to sources that are subject to the NSPS.

9. Your agency and the EPA should communicate sufficiently to ensure that each is fully informed and current regarding interpretation of regulations (including any unique questions about applicability) and the compliance status of subject sources in your jurisdiction.

a. Any records or reports provided to or otherwise obtained by your agency should be made available to the EPA upon request.

b. In accordance with 40 CFR 60.9, the availability to the public of information provided to or otherwise obtained by the EPA in connection with this delegation shall be governed by 40 CFR part 2.

10. Your agency will be the recipient of all notifications and reports and be the point of contact for questions and compliance issues for these delegated NSPS. The EPA may request notifications and reports from owners/operators and/or your agency, if needed.

11. Your agency will work with owners and operators of affected facilities subject to an NSPS subpart to ensure all required information is submitted to your agency. Your assistance is requested to ensure that this information, including excess emission reports and summaries, is submitted to the EPA upon request, if needed.

12. Your agency will require affected facilities to use the methods specified in 40 CFR part 60, as applicable, in performing source tests pursuant to the regulations. See 40 CFR 60.8.

13. Changes and alternatives:

a. Your agency is not delegated the authorities under 40 CFR 60.4(b), 60.8(b) (terms 2 and 3, to the extent that the change represents an alternative or equivalent method or a major change to testing as defined in 40 CFR 63.90), 60.9, 60.11(b) (with respect to alternative methods), 60.11(e)(7)&(8), 60.13(a), 60.13(d)(2), and 60.13(g). Such authorities and approvals remain the responsibility of the EPA.

b. Your agency is not delegated the authority to approve a major change to monitoring under 40 CFR 60.13(i). A major change to monitoring is defined in 40 CFR 63.90.

c. Your agency must maintain a record of all approved alternatives to monitoring, testing, and recordkeeping/reporting requirements and provide this list of alternatives to the EPA semi-annually or more frequently if requested by the EPA. The EPA may audit any approved alternatives and disapprove any that it determines are inappropriate, after discussion with your agency. If changes are disapproved, your agency must notify the owner/operator that it must revert to the original applicable monitoring, testing, recordkeeping, and/or reporting requirements. Also, in cases where the owner/operator does not maintain the conditions which prompted the approval of the alternatives to the monitoring, testing, recordkeeping, and/or reporting requirements, your agency must require the owner/operator to revert to the original monitoring, testing, recordkeeping, and reporting requirements, or more stringent requirements, if justified.

14. Your agency's authority to implement and enforce NSPS under this delegation does not extend to sources or activities located in Indian Country, as defined in 18 U.S.C. 1151. Consistent with previous Federal program approvals or delegations, the EPA will continue to implement the NSPS in Indian Country because your agency has not demonstrated authority over sources and activities located within the exterior boundaries of Indian reservations and in other areas of Indian Country.

15. The EPA Administrator delegated to the EPA, Region 10 the authority to delegate the NSPS to any state or local agency. A state or local agency that receives delegation from the EPA, Region 10 does not have the federally recognized authority to further delegate the NSPS.

16. If the EPA determines that your agency's procedures for implementing or enforcing the NSPS are inadequate or are not being effectively carried out, this delegation may be revoked in whole or in part by written notice of the revocation. Any such revocation will be effective as of the date specified in the notice.

Unless we receive negative comments from you within ten days, this delegation is final and will be effective ten days from the date of this letter. Otherwise, no further correspondence to the EPA is needed from IDEQ to make this delegation effective. We will periodically publish a notice in the Federal Register informing the public of IDEQ's updated delegations. If you have any questions, please contact Geoffrey Glass of my staff at (206) 553-1847 or [email protected].

Sincerely,

Krishna Viswanathan, Director

Air and Radiation Division

This notice acknowledges the update of Idaho's delegation of authority to implement and enforce NSPS and NESHAP.

[FR Doc. 2024-15395 Filed 7-12-24; 8:45 am]

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