[Federal Register Volume 75, Number 158 (Tuesday, August 17, 2010)]
[Rules and Regulations]
[Pages 50708-50711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20180]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2010-0529; FRL-9189-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Indiana; Transportation Conformity Consultation Requirement

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
Indiana State Implementation Plan (SIP) submitted on June 4, 2010. This 
revision consists of criteria and procedures related to the State's 
interagency consultation and certain control and mitigation measures 
addressing ``Transportation Conformity.'' This approval will meet a 
requirement of the Clean Air Act (Act) and EPA's Transportation 
Conformity regulations.

DATES: This direct final rule will be effective October 18, 2010, 
unless EPA receives adverse comments by September 16, 2010. If adverse 
comments are received, EPA will publish a timely withdrawal of the 
direct final rule in the Federal Register informing the public that the 
rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2010-0529, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (312) 692-2054.
    4. Mail: Jay Elmer Bortzer, Chief, Air Programs Branch (AR-18J), 
U.S. Environmental Protection Agency, 77 West Jackson Boulevard, 
Chicago, Illinois 60604.
    5. Hand Delivery: Jay Elmer Bortzer, Chief, Air Programs Branch 
(AR-18J), U.S. Environmental Protection Agency, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted 
during the Regional Office normal hours of operation, and special 
arrangements should be made for deliveries of boxed information. The 
Regional Office official hours of business are Monday through Friday, 
8:30 a.m. to 4:30 p.m., excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2010-0529. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, Region 5, Air and Radiation Division, 77 West 
Jackson Boulevard, Chicago, Illinois 60604. This Facility is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal 
holidays. We recommend that you telephone Patricia Morris, 
Environmental Scientist, at (312) 353-8656 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Patricia Morris, Environmental 
Scientist, Control Strategies Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 353-8656, [email protected].

[[Page 50709]]


SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What is Transportation Conformity?
II. What is the Background for This Action?
III. What Did the State Submit and How Did We Evaluate It?
IV. What Action is EPA Taking?
V. Statutory and Executive Order Reviews

I. What is Transportation Conformity?

    Transportation Conformity is required under Section 176(c) of the 
Act to ensure that Federally supported highway, transit projects, and 
other activities are consistent with (conform to) the purpose of the 
approved SIP. Transportation Conformity currently applies to areas that 
are designated nonattainment and those areas redesignated to attainment 
after 1990 (maintenance areas), with maintenance plans developed under 
section 175A of the Act for the following transportation-related 
criteria pollutants: Ozone, particulate matter (PM2.5 and 
PM10), carbon monoxide (CO), and nitrogen dioxide 
(NO2). Conformity to the purpose of the SIP means that 
transportation activities will not cause new air quality violations, 
worsen existing violations or delay timely attainment of the relevant 
National Ambient Air Quality Standards (NAAQS). The Federal 
Transportation Conformity regulations (Federal Rule) are found in 40 
CFR part 93 subpart A, and provisions related to conformity SIPs are 
found in 40 CFR 51.390.

II. What is the Background for This Action?

    On August 10, 2005, the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 
109-59) was signed into law. SAFETEA-LU revised certain provisions of 
section 176(c) of the Act, related to Transportation Conformity. Prior 
to SAFETEA-LU, States were required to address all of the Federal 
Rule's provisions in their conformity SIPs. After SAFETEA-LU, SIPs were 
required to contain all or portions of only the following three 
sections of the Federal Rule, modified as appropriate to each State's 
circumstances: 40 CFR 93.105 (consultation procedures); 40 CFR 
93.122(a)(4)(ii) (written commitments to implement certain kinds of 
control measures); and 40 CFR 93.125(c) (written commitments to 
implement certain kinds of mitigation measures). Pursuant to SAFETEA-
LU, States are no longer required to submit conformity SIP revisions 
that address the other sections of the Federal Rule.

III. What Did the State Submit and How Did We Evaluate It?

    A public hearing on the Transportation Conformity SIP was held on 
May 11, 2010 in Indianapolis, Indiana. Also, a 30-day public comment 
period was announced which closed on May 14, 2010. No comments were 
received from the public. EPA, however, made comments on three items 
which needed clarification.
    On June 4, 2010, the Indiana Department of Environmental Management 
(IDEM) submitted a revision to its SIP for Transportation Conformity 
purposes. Indiana provided the requested clarifications in the cover 
letter.
    The SIP revision consists of nine Metropolitan Planning 
Organization (MPO) board resolutions, one MPO Memorandum of 
Understanding (MOU), one State and Federal agency statewide MOU and an 
interagency consultation group conformity consultation guidance 
document, which will constitute the Indiana SIP for transportation 
conformity purposes. The MPO board resolutions are for the Delaware-
Muncie Metropolitan Plan Commission, the Evansville Metropolitan 
Planning Organization, the Indianapolis Metropolitan Planning 
Organization, the Michiana Area Council of Governments, the Madison 
County Council of Government, the Northeastern Indiana Regional 
Coordinating Council, the Northwestern Indiana Regional Planning 
Commission, the Ohio-Kentucky-Indiana Regional Council of Governments, 
and the West Central Indiana Economic Development District. The 
Kentuckiana Regional Planning and Development Agency is the MPO that 
has a signed MOU as the consultation agreement.
    The resolutions and MOUs were executed among the State of Indiana, 
the MPOs in nonattainment and maintenance areas, and the Federal 
agencies which have responsibility for undertaking transportation 
conformity in conjunction with transportation planning activities. The 
statewide MOU adopts the individual MPO resolutions, covers rural 
nonattainment and maintenance areas and provides for consultation among 
and between State and Federal agencies. These resolutions and 
agreements which make up the SIP revision address the three provisions 
of the Federal Rule required under SAFETEA-LU: 40 CFR 93.105 
(consultation procedures); 40 CFR 93.122(a)(4)(ii) (certain control 
measures); and 40 CFR 93.125(c) (mitigation measures). Each of the 
individual MPO resolutions and the MOUs provide detailed consultation 
procedures specific to each MPO area and adopted by the participants in 
that MPO area.
    Indiana has included several bi-State areas. The Louisville area is 
a bi-State Indiana/Kentucky area and the MOU for this area provides for 
consultation with all parties in both States. The MOU has been 
submitted by Kentucky as part of the Kentucky transportation conformity 
SIP, and EPA approved the SIP on April 21, 2010 (75 FR 20780). The same 
MOU has been submitted by Indiana as part of the Indiana transportation 
conformity SIP.
    The Cincinnati area is also a bi-State area with portions of 
Indiana and Kentucky included in the Cincinnati, Ohio ozone and PM 
nonattainment areas. The resolution passed by the MPO board for this 
area provides for consultation between Ohio State and local agencies 
and Indiana State agencies and Federal agencies in both Indiana and 
Ohio. The MPO has a separate agreement for the Kentucky portion to 
provide for consultation on Kentucky conformity determinations. A 
separate agreement is acceptable because the SIPs provide separate 
motor vehicle emissions budgets for the Kentucky portion of the 
Cincinnati area. The Ohio and Indiana portions of the Cincinnati area 
have combined motor vehicle emissions budgets and thus must work 
together for conformity determinations.
    EPA has evaluated this SIP revision including the nine MPO board 
resolutions, the one MPO MOU, and the one statewide MOU, and has 
determined that the nine MPO board resolutions and the MOU for KIPDA 
have met the requirements of the Federal transportation conformity 
rules as described in 40 CFR Part 51, Subpart T, and 40 CFR Part 93, 
Subpart A. As EPA has previously informed Indiana, there were three 
wording clarifications needed for consistency between the State and 
Federal agency MOU and the Conformity Rule. EPA believes that the State 
of Indiana has satisfactorily addressed these concerns, as follows.
    First, the statewide MOU seemed to have inadvertently left off a 
sentence in the conflict resolution section that would allow the 
Governor of Indiana to delegate the decision on conflicts. In response, 
IDEM has agreed to incorporate the recommended language into a future 
revision of the MOU; and, in the interim, IDEM agrees to resolve 
conflicts in accordance with language provided by EPA.

[[Page 50710]]

    In addition, the statewide MOU did not address the cost of 
documents to the public (if there is a cost) in accordance with EPA's 
fee schedule in 49 CFR 7.43. IDEM responded by citing Indiana's 
statutory authority which it believes is consistent with the Federal 
fee rule, and agreed to also clarify this matter in a future MOU 
revision.
    Finally, EPA noted that IDEM had not provided sufficient detail 
about the public process for ``hot spot analysis'' reviews. Indiana 
responded by citing a specific policy document, the ``INDOT Public 
Involvement Manual,'' which details the public participation process.
    Indiana has satisfied the public participation and comprehensive 
interagency consultation requirement during development and adoption of 
the resolutions at the MPO level and also with a public hearing and 
public comment on the entire SIP on May 11, 2010 and public comment 
period until May 14, 2010. EPA's rule requires the States to develop 
their own processes and procedures to be followed by the MPO, State 
Departments of Transportation (DOTs), and United States Department of 
Transportation (USDOT) in consulting with the State and local air 
quality agencies and EPA before making conformity determinations.
    The conformity SIP revision must also include processes and 
procedures for the State and local air quality agencies and EPA to 
coordinate the development of applicable SIPs with MPOs, State DOTs, 
and USDOT.
    EPA has reviewed the submittal to assure consistency with the CAA 
as amended by SAFETEA-LU and EPA regulations (40 CFR Part 93 and 40 CFR 
51.390) governing State procedures for transportation conformity and 
interagency consultation. Our review used the document ``Guidance for 
Developing Transportation Conformity SIPs'' dated January 2009, 
including ``Appendix A: Checklist for Developing a Conformity SIP'', 
and has concluded that the submittal is approvable.

IV. What Action is EPA Taking?

    For the reasons set forth above, EPA is taking action under section 
110 of the Act to approve the Indiana SIP revision for Transportation 
Conformity, which was submitted on June 4, 2010.
    We are publishing this action without prior proposal because we 
view this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the State plan if relevant adverse 
written comments are filed. This rule will be effective October 18, 
2010 without further notice unless we receive relevant adverse written 
comments by September 16, 2010. If we receive such comments, we will 
withdraw this action before the effective date by publishing a 
subsequent document that will withdraw the final action. All public 
comments received will then be addressed in a subsequent final rule 
based on the proposed action. EPA will not institute a second comment 
period. Any parties interested in commenting on this action should do 
so at this time. If we do not receive any comments, this action will be 
effective October 18, 2010.

V. Statutory and Executive Order Reviews

    Under the Act, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve State choices, 
provided that they meet the criteria of the Act. 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 Order 
12866 (58 FR 51735, October 4, 1993);
     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 application of those requirements would be inconsistent 
with the Act; and
     Does not provide 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, this rule does not have Tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the State, 
and EPA notes that it will not impose substantial direct costs on 
Tribal governments or preempt Tribal law.
    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. 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 Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 18, 2010. 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. 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, Carbon monoxide,

[[Page 50711]]

Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: August 5, 2010.
Bharat Mathur,
Acting Regional Administrator, Region 5.

0
40 CFR part 52 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 P--Indiana

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2. Part 52 is amended by adding a new Sec.  52.799 to read as follows:


Sec.  52.799  Transportation conformity.

    On June 4, 2010, Indiana submitted the Transportation Conformity 
Consultation SIP consisting of Metropolitan Planning Organization 
resolutions and Memorandums of Understanding to address interagency 
consultation and enforceability of certain transportation related 
control measures and mitigation measures. EPA is approving the 
Transportation Conformity SIP from Indiana.

[FR Doc. 2010-20180 Filed 8-16-10; 8:45 am]
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