Approval and Promulgation of Implementation Plans; Indiana

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IN80-1a; FRL-5929-5]

Approval and Promulgation of Implementation Plans; Indiana

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: This action approves a State Implementation Plan (SIP)

revision for the State of Indiana which was submitted January 23, 1997,

pursuant to the Environmental Protection Agency (EPA) general

conformity rules set forth at 40 Code of Federal regulations (CFR) part

51, subpart W--Determining Conformity of General Federal Actions to

State or Federal Implementation Plans. Section 51.851(a) of the general

conformity rules requires each State to submit to EPA a revision to its

applicable SIP which contains criteria and procedures for assessing

conformity of Federal actions to applicable SIPs. The general

conformity rules, except for the 40 CFR 51.851(a) language requiring

State submission of a SIP revision, are repeated at 40 CFR part 93,

subpart B. Indiana's SIP submission incorporates by reference the

criteria and procedures set forth at 40 CFR part 51, subpart W. This

general conformity SIP revision will enable the State of Indiana to

implement and enforce the Federal general conformity requirements in

the nonattainment and maintenance areas at the State and local level.

This approval is limited only to the general conformity SIP

revision submitted pursuant to 40 CFR part 51, subpart W. Indiana

submitted additional rules under 40 CFR part 51, subpart T, relating to

conformity of Federal transportation actions funded or approved under

Title 23 U.S.C. or the Federal Transit Act, which will be addressed in

a separate notice. This action provides the rationale for today's

approval.

DATES: The ``direct final'' is effective on March 16, 1998, unless EPA

receives written adverse or critical comments by February 13, 1998. If

the effective date is delayed, timely notice will be published in the

Federal Register.

ADDRESSES: Copies of the revision request are available for inspection

at the following address:

U.S. Environmental Protection Agency, Region 5, Air and Radiation

Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. (It is

recommended that you telephone Ryan Bahr, Environmental Engineer, at

(312) 353-4366 before visiting the Region 5 Office.)

Written comments should be sent to:

J. Elmer Bortzer, Chief, Regulation Development Section, Air

Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West

Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Ryan Bahr, Environmental Engineer, at

(312) 353-4366.

SUPPLEMENTARY INFORMATION:

I. Background

Section 176(c) of the Clean Air Act (Act), 42 U.S.C. 7506(c),

provides that no Federal department, agency, or instrumentality shall

engage in, support in any way or provide financial assistance for,

license or permit, or approve any activity which does not conform to a

SIP that has been approved or promulgated pursuant to the Act.

``Conformity'' is defined in section 176(c) of the Act as conformity to

the SIP's purpose of eliminating or reducing the severity and number of

violations of the National Ambient Air Quality Standards (NAAQS) and

achieving expeditious attainment of such standards. Section 176(c)

further states that such activities will not: (1) cause or contribute

to any new violation of any standard in any area, (2) increase the

frequency or severity of any existing violation of any standard in any

area, or (3) delay timely attainment of any standard or any required

interim emission reductions or other milestones in any area.

Section 176(c)(4)(A) of the Act requires EPA to promulgate criteria

and procedures for determining conformity of all Federal actions to

applicable SIPs. Criteria and procedures for determining conformity of

Federal actions related to transportation projects funded or approved

under Title 23 U.S.C. or the Federal Transit Act are set forth at 40

CFR part 93, subpart A. The criteria and procedures for determining

conformity of other Federal actions, the ``general conformity'' rules,

were published in the November 30, 1993, Federal Register and codified

at 40 CFR part 51, subpart W--Determining Conformity of General Federal

Actions to State or Federal Implementation Plans.

II. Evaluation of the State's Submittal

Pursuant to the requirements under section 176(c)(4)(C) of the Act,

the Indiana Department of Environmental Management (IDEM) submitted its

general conformity SIP revision to the EPA on January 23, 1997. In its

submittal, the State provided rules codified at 326 Indiana

Administrative Code (IAC) 16-3 which incorporated the Federal general

conformity requirements by reference (40 CFR part 51, subpart W). EPA

found the submittal complete in a letter dated June 24, 1997. Under 40

CFR 51.853 (b), general conformity is required for all areas which are

designated nonattainment or maintenance for any NAAQS criteria

pollutant. The Indiana area designations are listed in 40 CFR 81.315.

IDEM gave public notice and opportunity for comment on the general

conformity submittal on January 11, 1996, February 7, 1996, and April

3, 1996. No adverse comments were received on this rule.

III. EPA Criteria for General Conformity Submittal

The State's SIP revision must contain criteria and procedures that

are no less stringent than the Federal rule. The revision incorporated

the provisions of the entire Federal general conformity rule, Subpart

W: 40 CFR 51.850 to 51.860 with the exception of Sec. 51.851. Section

51.851 requires that the State incorporate the provisions of the

Federal rule into the State code and, therefore, does not need to be

incorporated into the State Code.

IV. EPA Rulemaking Action

The EPA is approving the general conformity SIP revision for the

State of Indiana. The EPA has evaluated this SIP revision and has

determined that the State has fully adopted the provisions of the

Federal general conformity rules set forth at 40 CFR part 51, subpart

W. The appropriate public participation and comprehensive interagency

consultations were undertaken during development and adoption of this

SIP revision. Because EPA considers this action to be noncontroversial

and routine, EPA is approving it without prior proposal. This action

will become

[[Page 2147]]

effective on March 16, 1998. However, if EPA receives adverse written

comments by February 13, 1998, EPA will publish a document that

withdraws this action.

V. Miscellaneous

A. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from executive order 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C.603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D of the

Clean Air Act do not create any new requirements but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP approval does not impose any new requirements, the

Administrator certifies that it does not have a significant impact on

any small entities affected. Moreover, due to the nature of the

Federal-State relationship under the Act, preparation of a flexibility

analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.

EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

private sector, of $100 million or more. Under section 205, EPA must

select the most cost-effective and least burdensome alternative that

achieves the objectives of the rule and is consistent with statutory

requirements. Section 203 requires EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted 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

General Accounting Office prior to publication of the rule in the

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by March 16, 1998. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule 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. 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,

General conformity, Hydrocarbons, Intergovernmental relations, Lead,

Nitrogen Oxides, Ozone, Particulate matter, Sulfur dioxide, Volatile

organic compounds.

Dated: November 14, 1997.

David A. Ullrich,

Acting Regional Administrator, Region V.

40 CFR part 52, is amended as follows:

PART 52--[AMENDED]

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

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

Subpart P--Indiana

2. Section 52.770 is amended by adding paragraph (c)(121) to read

as follows:

Sec. 52.770 Identification of plan.

* * * * *

(c) * * *

(121) On January 23, 1997, the Indiana Department of Environmental

Management submitted a revision to the State Implementation Plan (SIP)

for the general conformity rules. The general conformity SIP revision

enables the State of Indiana to implement and enforce the Federal

general conformity requirements in the nonattainment and maintenance

areas at the State and local level in accordance with 40 CFR part 51,

subpart W--Determining Conformity of General Federal Actions to State

or Federal Implementation Plans.

(i) Incorporation by reference. 326 Indiana Administrative Code 16-

3: General Conformity, Section 1: Applicability; incorporation by

reference of Federal standards. Adopted by the Indiana Air Pollution

Control Board April 3, 1996. Filed with the Secretary of State June 6,

1996. Published at the Indiana Register, Volume 19, Number 11, August

1, 1996 (19 IR 3050). Effective July 6, 1996.

[FR Doc. 98-932 Filed 1-13-98; 8:45 am]

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