2005 Legislation
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HOUSE BILL NO. 230 – Air pollution, permit requirements


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Bill Status

H0230......................................................by STATE AFFAIRS
AIR POLLUTION - Amends existing law to clarify that certain air quality
rules and permit requirements can be no more stringent than those provided
by the federal government.
02/16    House intro - 1st rdg - to printing
02/17    Rpt prt - to Env
02/25    Rpt out - rec d/p - to 2nd rdg
02/28    2nd rdg - to 3rd rdg
03/04    3rd rdg - PASSED - 53-13-4
      AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
      Bedke, Bell, Bilbao, Black, Block, Bolz, Bradford, Cannon,
      Chadderdon, Clark, Collins, Deal, Denney, Edmunson, Ellsworth,
      Eskridge, Field(18), Field(23), Garrett, Hart, Harwood, Henderson,
      Jones, Kemp, Lake, Mathews, McGeachin, McKague, Miller, Moyle,
      Nielsen, Nonini, Raybould, Ring, Roberts, Rydalch, Sali, Shepherd(2),
      Shepherd(8), Shirley, Skippen, Smith(24), Smylie, Snodgrass,
      Stevenson, Wills, Wood
      NAYS -- Boe, Henbest, Jaquet, LeFavour, Martinez, Mitchell,
      Pasley-Stuart, Pence, Ringo, Rusche, Sayler, Smith(30), Trail
      Absent and excused -- Crow, Loertscher, Schaefer, Mr. Speaker
    Floor Sponsor - Edmunson
    Title apvd - to Senate
03/07    Senate intro - 1st rdg - to Health/Wel
03/18    Rpt out - rec d/p - to 2nd rdg
03/21    2nd rdg - to 3rd rdg
03/31    3rd rdg - PASSED - 25-9-1
      AYES -- Andreason, Brandt, Broadsword, Bunderson, Burtenshaw,
      Cameron, Compton, Corder, Darrington, Davis, Fulcher, Gannon, Geddes,
      Goedde, Hill, Jorgenson, Keough, Little, Lodge, McGee, McKenzie,
      Richardson, Stegner, Sweet, Williams
      NAYS -- Burkett, Coiner, Kelly, Langhorst, Malepeai, Marley,
      Schroeder, Stennett, Werk
      Absent and excused -- Pearce
    Floor Sponsor - McGee
    Title apvd - to House
03/31    To enrol - Rpt enrol - Sp signed
04/01    Pres signed
04/04    To Governor
04/06    Governor signed
         Session Law Chapter 292
         Effective: 07/01/05

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                              IN THE HOUSE OF REPRESENTATIVES
                                     HOUSE BILL NO. 230
                                 BY STATE AFFAIRS COMMITTEE
  1                                        AN ACT
  6        SIONS.
  7    Be It Enacted by the Legislature of the State of Idaho:
  8        SECTION  1.  STATEMENT OF LEGISLATIVE INTENT. The definition of "regulated
  9    air pollutant" for purposes of determining whether permit to construct or per-
 10    mit to operate requirements apply, was intended to comply with but not  exceed
 11    federal  clean  air act requirements. The Legislature intends that the Depart-
 12    ment of Environmental Quality uniformly apply Idaho law in an effort  to  con-
 13    form with but not differ from federal definitions of regulated air pollutants.
 14    Nevertheless,  the United States District Court for Idaho has applied portions
 15    of rules of the Department of Environmental Quality for  air  pollution  in  a
 16    manner  which substantially exceeds federal requirements. This act is meant to
 17    clarify that Idaho law in this regard has always been intended to comply  with
 18    but not exceed federal law and should not be construed as a change in the law,
 19    but rather a clarification of what the existing law has consistently meant.
 20        SECTION  2.  That  Section  39-115, Idaho Code, be, and the same is hereby
 21    amended to read as follows:
 22        39-115.  POLLUTION SOURCE PERMITS.
 23        (1)  (a) The director shall have the authority to issue  pollution  source
 24        permits in compliance with rules established hereunder.
 25        (b)  To  determine  the applicability of permit requirements for any major
 26        or minor air pollution source in Idaho, the department shall  develop  and
 27        recommend to the board for adoption, rules that define "regulated air pol-
 28        lutant" as follows:
 29             (i)   For purposes of a major source permit to operate issued or mod-
 30             ified  by  the  department  in accordance with title V of the federal
 31             clean air act amendments of 1990,  "regulated  air  pollutant"  shall
 32             have  the  same  meaning  as  in title V of the federal clean air act
 33             amendments of 1990, and any applicable  federal  regulations  promul-
 34             gated  pursuant to title V of the federal clean air act amendments of
 35             1990;
 36             (ii)  For purposes of any other operating permit issued  or  modified
 37             by  the  department, the federal definition of "regulated air pollut-
 38             ant" as defined in subsection (1)(b)(i) of this  section  shall  also
 39             apply;
 40             (iii) For  purposes  of any permit to construct issued or modified by
 41             the department pursuant to part D of  subchapter  I  of  the  federal
 42             clean  air  act,  "regulated  air  pollutant"  shall  mean  those air
  1             contaminants that are regulated pursuant to part D of subchapter I of
  2             the federal clean air act and applicable federal regulations  promul-
  3             gated  pursuant  to  part  D of subchapter I of the federal clean air
  4             act; and
  5             (iv)  For purposes of any other major or minor  permit  to  construct
  6             issued or modified by the department, "regulated air pollutant" shall
  7             mean  those air contaminants that are regulated pursuant to part C of
  8             subchapter I of the federal clean air act and any applicable  federal
  9             regulations  promulgated  pursuant  to  part C of subchapter I of the
 10             federal clean air act.
 11        (c)  To determine the applicability of any permit to construct  or  permit
 12        to  operate  requirement  to  any  air pollution source in Idaho, fugitive
 13        emissions shall not be included in any applicability  calculation,  unless
 14        expressly  required  by 42 U.S.C. section 7401 et seq.  The director shall
 15        develop and the board shall adopt rules that provide that, for both  major
 16        and  minor  source permit applicability determinations, fugitive emissions
 17        shall be included only as expressly required by federal law.
 18        (d)  The director shall develop and recommend to the  board  for  adoption
 19        through  rulemaking,  criteria  to  determine insignificant activities and
 20        such sources or modification with emissions at or  below  the  de  minimis
 21        level  which shall not require either a permit to construct or a permit to
 22        operate; provided however,  that  a  registration  of  the  activities  or
 23        sources may be required.
 24        (2)  The  director  shall have the authority to sue in competent courts to
 25    enjoin any threatened or continuing:
 26        (a)  Violations of pollution source permits or conditions thereof  without
 27        the necessity of a prior revocation of the permit; or
 28        (b)  Construction  of  an  industrial  or  commercial air pollution source
 29        without a permit required under this chapter or rules adopted hereunder.
 30        (3)  The department is authorized to charge and collect a fee for process-
 31    ing applications for industrial or commercial air pollution source permits  in
 32    accordance  with  a  fee  schedule  established by the board  pursuant to this
 33    chapter.  For fees charged for operating permits under title V of the  federal
 34    clean air act amendments of 1990, the department shall not charge a fee on any
 35    hazardous  air pollutant other than those listed under section 112 of the fed-
 36    eral clean air act. The fee schedule shall be structured to provide an  incen-
 37    tive for emission reduction.
 38        (4)  The  director  may  issue  air emission source permits to construct a
 39    facility  to  incinerate  any  waste   or   waste   item   contaminated   with
 40    polychlorinated biphenyls (PCBs) only if the director finds:
 41        (a)  The  facility  will  not be sited in complex valley terrain where the
 42        valley floor is less than five (5) miles wide and the  valley  walls  rise
 43        more than one thousand (1,000) feet;
 44        (b)  The  facility  has  complied  with local planning and zoning require-
 45        ments;
 46        (c)  There has been an opportunity for public participation; and
 47        (d)  The facility will employ best available technology  and  instrumenta-
 48        tion.
 49        Subsection  (4) of this section shall not apply to incineration activities
 50    existing on or before January 1, 1987.

Statement of Purpose / Fiscal Impact

                       STATEMENT OF PURPOSE

                             RS 15004

Under Idaho law, air pollution source permits are to be
issued in conformity with federal programs established under the
Clean Air Act.  Recently, the U.S. District Court for the
District of Idaho interpreted portions of the Idaho air rules in
a manner which exceeds federal requirements.  This legislation
requires the Department of Environmental Quality to adopt rules
that conform the state law to the Clean Air Act (and its
regulations) with respect to the scope of "regulated air
pollutants" included for pollution source permit applicability.

The air contaminants included in determining whether
pollution source construction or operating permit requirements
apply for programs administered by the Department must be
consistent with, and no more stringent than, the air contaminants
included for such permitting determinations under the Clean Air
Act and its regulations.  Further, the legislation conforms state
law to the federal Clean Air Act and regulations so fugitive
emissions are not included in calculations to determine the
applicability of construction or operating permit requirements
unless expressly designated under the Clean Air Act by the EPA

                           FISCAL NOTE

There should be no fiscal impact as this clarifies that the
permitting requirements DEQ has used traditionally are correct. 
Not passing this legislation (or something similar) will cause a
significant increase in permitting costs at DEQ.

Name:  Mr. Dick Rush 
Phone: 208-343-1849