Approval of the State Implementation Plan; Wisconsin

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WI55-02-7015; FRL-5289-5]

Approval of the State Implementation Plan; Wisconsin

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: On January 10, 1995, the United States Environmental

Protection Agency (USEPA) proposed approval of the State Implementation

Plan (SIP) revision request for the Milwaukee ozone nonattainment area

(Kenosha, Milwaukee, Ozaukee, Racine, Washington, and Waukesha

counties), as submitted by the State of Wisconsin. The purpose of the

revision is to offset any growth in emissions from growth in vehicle

miles traveled (VMT), or number of vehicle trips, and to attain

reduction in motor vehicle emissions, in combination with other

measures, as needed to comply with Reasonable Further Progress (RFP)

milestones of the Clean Air Act (Act). Wisconsin submitted the

implementation plan revision to satisfy the statutory mandates, found

in section 182 of the Act, which requires the State to submit a SIP

revision that identifies and adopts specific enforceable Transportation

Control Measures (TCM) to offset any growth in emissions from growth in

VMT, or number of vehicle trips, in severe ozone nonattainment areas.

The USEPA received no public comments on the above proposed approval.

On May 5, 1995, USEPA finalized the first element of the VMT offset

program for the Milwaukee area. This rule finalizes the approval of the

second element of the VMT offset program for the Milwaukee area.

EFFECTIVE DATE: This action will be effective October 11, 1995.

ADDRESSES: Copies of the SIP revision, public comments and USEPA's

responses are available for inspection at the following address: (It is

recommended that you telephone Michael Leslie at (312) 353-6680 before

visiting the Region 5 Office.) United States Environmental Protection

Agency, Region 5, Air and Radiation Division, 77 West Jackson

Boulevard, Chicago, Illinois 60604.

A copy of this SIP revision is available for inspection at the

following location: Office of Air and Radiation (OAR) Docket and

Information Center (Air Docket 6102), room M1500, United States

Environmental Protection Agency, 401 M Street SW., Washington, D.C.

20460, (202) 260-7548.

FOR FURTHER INFORMATION CONTACT: Michael G. Leslie, Regulation

Development Section (AT-18J), Air Toxics and Radiation Branch, Air and

Radiation Division, United States Environmental Protection Agency,

Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, Telephone

Number (312) 353-6680.

SUPPLEMENTARY INFORMATION:

I. Background Information

Section 182(d)(1)(A) of the Act requires States that contain severe

ozone nonattainment areas to adopt transportation control measures and

transportation control strategies to offset growth in emissions from

growth in VMT or number of vehicle trips and to attain reductions in

motor vehicle emissions (in combination with other measures) as needed

to comply with the Act's RFP milestones and attainment requirements.

The requirements for establishing a VMT Offset program are set forth in

182(d)(1)(A) and discussed in the General Preamble to Title I of the

Act (57 FR 13498 April 16, 1992).

As described in the proposal, section 182(d)(1)(A) sets forth three

elements that must be met by a VMT Offset SIP. Under USEPA's

alternative interpretation, the three required elements of section

182(d)(1)(A) are separable, and can be divided into three separate

submissions that could be submitted on different dates. Section 179(a)

of the Act, in establishing how USEPA would be required to apply

mandatory sanctions if a State fails to submit a full SIP, also

provides that the sanctions clock starts if a State fails to submit one

or more SIP elements, as determined by the Administrator. The USEPA

believes that this language provides USEPA the authority to determine

that the different elements of the SIP submissions are separable.

Moreover, given the continued timing problems addressed above, USEPA

believes it is appropriate to allow States to separate the VMT Offset

SIP into three elements, each to be submitted at different times: (1)

The initial requirement to submit TCMs that offset growth in emissions;

(2) the requirement to comply with the 15 percent periodic reduction

requirement of the Act; and 3) the requirement to comply with the post-

1996 periodic reduction and attainment requirements of the Act.

As noted in the January 10, 1995, proposal, the USEPA would not

take final action on the second element until the State has submitted a

complete 15 percent ROP plan. On July 13, 1995, the State of Wisconsin

submitted a 15 percent ROP plan with fully enforceable rules that have

been subject to public hearing. No TCMs were utilized in the ROP plan

to meet the 15 percent reduction in emissions. On July 18, 1995, the

USEPA determined that this ROP plan was complete.

II. Final Rulemaking Action

In this action, USEPA is approving the second element of the VMT

offset SIP revision submitted by the State of Wisconsin. The third

element of the Wisconsin VMT offset SIP will also be the subject of a

future rulemaking.

This action has been classified as a Table 3 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from Executive Order 12866 review.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to any SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

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

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, USEPA may certify that the rule will not have a

significant economic 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.

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

the 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, I certify

that it does not have a significant impact on small entities affected.

[[Page 47089]]

Moreover, due to the nature of the Federal-State relationship under the

Act, preparation of a regulatory flexibility analysis would constitute

Federal inquiry into the economic reasonableness of State action. The

Act forbids USEPA to base its actions concerning SIPs on such grounds.

Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (1976).

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 November 13, 1995. 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)).

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995,

EPA must assess whether various actions undertaken in association with

proposed or final regulations include a Federal mandate that may result

in estimated costs of $100 million or more to the private sector, or to

State, local, or tribal governments in the aggregate.

EPA's final action will relieve requirements otherwise imposed

under the Clean Air Act and, hence does not impose any federal

intergovernmental mandate, as defined in section 101 of the Unfunded

Mandates Act. This action also will not impose a 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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Ozone.

Dated: August 17, 1995.

Valdas V. Adamkus,

Regional Administrator.

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 7401-7671q.

Subpart YY--Wisconsin

2. Section 52.2585 is amended by adding paragraph (h) to read as

follows:

Sec. 52.2585 Control strategy: Ozone.

* * * * *

(h) Approval--On November 15, 1993, the Wisconsin Department of

Natural Resources submitted a revision to the ozone State

Implementation Plan. The submittal pertained to a plan for forecasting

VMT in the severe ozone nonattainment area of southeastern Wisconsin

and demonstrated that Transportation Control Measures would not be

necessary to meet the 15 percent Rate-of-Progress milestone.

[FR Doc. 95-22144 Filed 9-8-95; 8:45 am]

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