### IDEM INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT We Protect Hoosiers andOurEnvironment. Mitchell E. Daniels Jr. 100 North Senate Avenue Governor Indianapolis, Indiana 46204 (317) 232-8603 Thomas W: Easterly Toll Free (800) 451-6027 Commissioner www.idem.IN.gov

August 18, 2008 Ms. Louise Gross Legislation/Clean Air Act U.S. Environmental Protection Agency Region V 77 West Jackson Boulevard Chicago,IL 60604-3950 Re: Supplemental Information Clean Air Act Section 110(1) Demonstration and State Implementation Plan Revisions for Clark and Floyd Counties, Indiana Dear Ms. Gross:

The Indiana Department ofEnvironmental Management (IDEM) has performed a legal review ofthe applicable statutory procedure for implementation ofa vehicle inspection and maintenance (I1M) program in Clark and/or Floyd counties. This review was conducted at your request in order to further explain how this procedure works in conjunction with the Clean Air Act Section 110(1) Demonstration and State Implementation Plan (SIP) Revision, such that I/M would be a viable contingency measure for the applicable attainment and maintenance SIPs (fine particles and ozone). Based on this legal review, Indiana statute does in fact permit the State of Indiana the authority to timely implement a vehicle 

### 11Mprogram whenever necessary as a contingency measure in conjunction with the federal sanctions process. Enclosed for your review, please find supplemental information prepared by IDEM's legal staffthat supports Indiana's interpretation ofits statutory authority to reinstitute 

### 11M whenever necessary as a contingency measure. IDEM believes that this supplemental information in conjunction with the Clean Air Act 110(1) demonstration, provides the necessary weight ofevidence to demonstrate that IIM is a viable contingency measure for the applicable attainment and maintenance SIPs. IDEM also believes that its non-interference demonstration submitted to the U.S. EPA with a request for parallel processing on October 10, 2006 and a final submission on November 15, 2006 to SUppOlt the discontinuation ofthe liM program in Clark and Floyd Counties, Indiana remains valid, with no adverse impacts evident for the area.

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### @ An Equal Opportunity Employer Please Recycle 

### 0Ms. Louise Gross Page 2

Theretore, 

### IDEM hereby respectfully requests that the U.S. 

### EPA proceed with final review and approval ofthe Clean Air Section 

### 110(1) Demonstration for Clark and Floyd Counties. 

### Ifyou have any questions or need additional information, please contact Scott Deloney,**Chiet~** Air Programs Branch, at (317) 233-5694 or sdeloneyCtV,idem.in.gov 01' Ann Long, Attorney, Office of Legal Counsel, at (317) 232-8551 or along@idem.in.gov,

DM/sd/ghf Attachments cc: Cheryl Newton, U.S. 

### EPA John Mooney, U.S. EPA Scott Deloney, IDEM Chris Pedersen, IDEM Gale Ferris, IDEM Ann Long, IDEMState Form 4336 

### DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
INDIANAPOLIS 

### OFFICE MEMORANDUM

The applicable statutory procedure is contained in Indiana Code (IC) 13-17-5-9(d). We believe that this statute authorizes Indiana to timely implement 

### IJM whenevernecessary as a contingency measure, andprovide the following analysis. IDEM has been asked by EPA to explain how the applicable statutoryprocedure for implementation ofa vehicle inspection and maintenance (lIM) program for Clark and/or Floyd counties works in conjunction with the SIP submittal to satisfy the requirements of 40 CFR 51.372(c)(l) through (c)(4), such that liM would be an viable contingency measure for the attainmentmaintenanceplan.

IC 13-17-5-9(a) and (b) state that after December 31, 2006 the Indiana AirPollution Control Board maynot adopt a rule thatrequires the inspection and maintenance ofmotor vehicles in Clark and Floyd counties. Therule language at 326 IndianaAdministrative Code (IAC) 13-1.1 that required inspection and maintenance ofmotorvehicles in those two counties was voided by the statute. The I/M program rule was formally amended to exclude Clark and Floyd counties in 2007.

To: From: Through: Copy:
Subject:

. Date: August 18, 2008

Dan Murray, Assistant Commissioner, OAQ Ann Long, Attorney, OLC

# ~V Robert Keene, Assistant Commissioner, OLC and

# rill!.

ScottDeloney, Branch Chief, AirPrograms, OAQ; PatTroth, Section Chief,·OAQ

.CLARKaild FLOYD COUNTIES, INDIANA CLEAN AIR ACT 110(1) DEMONSTRATION; LEGAL AUTHORITY FOR lIM PROGRAMTO BE RE-IMPLEMENTED AS A CONTINGENCY MEASURE i 

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# I I I-.IC 13-17-5-9 (c) and (d) set out theprocedure underwhich the state budget agencymay approve [re-]implementation ofa

### JJM program in the one orboth ofthe counties. JIM in Clark and/orFloyd counties can only be implemented afterthe budget agency determines that implementation ofalIM program is necessary to avoid a loss offederal highway funding for the state or a political subdivision. Thephrase "loss offederal highway funding" refers to a sanction imposed under 40 CFR 52.31, (a sequence ofnotifications and ensuing mandatory sanctions for deficiency findings made pursuant to section 179 of the CleanAirAct), which outlines the consequences to the states for, among other possible findings ofdeficiency, an EPA finding that any requirement ofan approved SIP revision is not being implemented. 40 CFR 51.372 (c) states that any nonattainment areathat EPA determines would otherwise qualify for redesignation from nonattainmentto attainment shall receive full approval ofa SIP submittal ifthe submittal contains the following elements: (1) Legalauthority to implementa basic11M program as requiredby this subpart. The legislative authority for a 11M program shall allow the adoption of implementingregulations without requiringfurther legislation. IC 13-17-5-9 (d) complies with this element. Subsection (d) is selfexecuting in that the state budget agency is delegated authority to approve implementation ofan I/M program upon making a determination that certain conditions exist. Thebudget agency approval will triggerrulemaking and contractualprocesses within IDEM for which the departmenthas long standing statutory authority. No return to the legislature for additional authorityto implement

### JJM is required orneeded. (2) A request toplace the 11M plan (ifno 11M program is currently inplace or 

### if an 11M program has been terminated) into the contingency measuresportion of the maintenanceplan upon redesignation. As an example ofsuch a request, in 2006 IDEM revised the 8-HourRedesignation Petition andMaintenance Plan for Clark and Floyd counties in orderto move the lIM program from Section 6.2 where it was listed as a measure to remain inplace overthe course ofthe maintenance plan, to Section 8.0 where it is listed as a contingency measure. Within the request, IDEM statedthat the revision resulted from the amendment onc 13-17-5 eliminating the lIM program, which amendment is the subject ofthis letter. Thatrequest and Indiana's SIP revision was approved effective July 9,2007.
IDEM will continue to make this request in the appropriate submittals for Clark and Floyd counties. 

### (3) A contingencymeasure consisting of a commitment by the Governor orthe Governor's designee to adopt orconsideradopting regulations to implementan 11M program to correct a violation of the ozone or COstandardorotherair qualityproblem, in accordance with theprovisions of the maintenanceplan. The IC 13-17-5-9 (d) procedure allows this commitment to be successfully made in a SIP submittal. The state budget agency has been statutorily designated to consider 

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.and approve implementation ofa IIM plan for Clark and/orFloyd counties when needed to avoid a loss offederal highway funding. A violation ofthe criteriapollutant standard as described in the Commitment for ContingencyMeasures within the IDEM submittal is the event that would prompt an Action Level response, induding consideration ofadopting rules/making contracts to implementlIM. IfIIM is found to be an appropriate and effective measure, IDEM would notifythe budget agency ofthe need to consider and approve implementation ofllM to avoid losing federal highway funding, and provide the sanction clock timeline of40 CFR 52.31 as well as the IDEM rulemaking and contractual process timeline and the commitment made in the submittal (see 18 month deadline discussion below), to the budget agency. This ensures that the budget agency's approval is made timely so as' to avoid imposition ofthe highway funding sanction. (4) A contingency commitment that includes an enforceable schedule for adoption

. and implementation of the JIM program, andappropriate milestones. The schedule shall include the datefor submission of a SJP meeting all of the requirements of this subpart. Schedule milestones shall belistedin months from the date EPA notifies the state that it is in violation of the ozone or CO standard orany earlierdate specified in the stateplan. Unless the state, in accordance with theprovisions of the maintenanceplan, chooses not to implementJIM, itmustsubmita SJP revision containing an JIM program no more than 

### 18 months afternotification byEPA. IC13-17-5-9 (d) allows compliance with this elementthrough the contingency commitment. This wouldbe accomplished by a state action timeline, with milestones, that would proceed from the date ofthe EPA notification to the date of adoption ofa rule to implement lIM. The eighteen month deadline for the SIP revision dictates that the highway funding sanction will be avoided. Under40 CFR 52.31 (d), a sanction clock is started by a (c)(4) finding by EPA. 40 CFR (d) provides that an offset sanction shall apply in an affected area 18 months from the date w.hen the administratormakes a finding under (c). The loss offederal highway funding sanction applies 6 months from the date the offset sanction applies. Forfindings under (c) (4), the date ofthe finding is the effective date as defined in the final action triggering the sanction clock. This is a two yearplus process as compared to the 18 month SIP revision process set out in (4). 

### In summary, the Indiana statute authorizes Indiana to timely implement IIM whenever necessary as a contingency measure. Understanding this is amatter oflooking at the specific language ofthe statute and the relevant federal regulations for the steps that would be taken by IDEM after the decision to implementIIM as a contingency measure in conjunction with the federal sanctions process. 

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