[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
0
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]
BILLING CODE 6560-50-P