Clean Air Act Approval and Promulgation of Employee Commute Options Program; Wisconsin

ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 52

[WI43-01-6261a; AMS-FRL-5139-1]

Clean Air Act Approval and Promulgation of Employee Commute

Options Program; Wisconsin

AGENCY: Environmental Protection Agency (EPA)

ACTION: Direct final rule.

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SUMMARY: The EPA is approving a State Implementation Plan (SIP)

revision submitted by the State of Wisconsin on November 15, 1993 for

the purpose of establishing an Employee Commute Options (ECO) program

in the Milwaukee, severe-17, ozone nonattainment area. Wisconsin

submitted the SIP to satisfy the provisions of the Clean Air Act (Act),

that require that an ECO Program be established for employers with 100

or more employees for the purpose of reducing the number of vehicle

trips being made to the worksite during the peak commuting period. The

rationale for the approval is set forth in this document; additional

information is available at the address indicated below.

DATES: This final rule is effective April 3, 1995 unless someone

submits adverse comments by March 2, 1995. If the effective date is

delayed, timely notice will be published in the Federal Register.

ADDRESSES: Copies of the SIP revision and EPA's technical support

documents are available at the following address: United States

Environmental Protection Agency, Region 5, Air and Radiation Division,

Air Toxics and Radiation Branch, Regulation Development Section, 77

West Jackson Boulevard, Chicago, Illinois 60604.

Written comments can be mailed to: Carlton Nash, Chief, Regulation

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

Radiation, U.S. Environmental Protection Agency, 77 West Jackson

Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: John M. Mooney, (312) 886-6043. Anyone

wishing to come to the Region 5 offices should contact John M. Mooney

first.

SUPPLEMENTARY INFORMATION:

I. Background

Implementation of the provisions of the Act will require employers

with 100 or more employees in the seven county Milwaukee Severe-17

ozone nonattainment area to participate in a trip reduction program.

The concerns that lead to the inclusion of this Employee Commute

Options (ECO) provision in the Act are that more people than ever

before are driving and they are driving longer distances. The increase

in the number of drivers and the increase in the number of vehicle

miles traveled (VMT) currently offset a large part of the emissions

reductions achieved through the production and sale of vehicles that

operate more cleanly. It is widely accepted that shortly after the year

2000, without limits on increased travel, the increased emissions

caused by more vehicles being driven more miles under more congested

conditions will outweigh the benefits derived from the fact that each

new vehicle pollutes less, resulting in an overall increase in

emissions from mobile sources. The ECO provision in the Act outlines

the requirements for a program designed to minimize the use of single

occupancy vehicles in order to gain emissions reductions beyond those

obtained via stricter tailpipe and fuel standards.

Section 182(d)(1)(B) of the Act requires that employers submit

their compliance plans to the State 2 years after the SIP revision is

submitted to EPA. These employer developed compliance plans are

designed to convincingly demonstrate an increase in the average

passenger occupancy (APO) rates of employees who commute to work during

the peak period by no less than 25 percent above the average vehicle

occupancy (AVO) of the nonattainment area. These compliance plans must

``convincingly demonstrate'' that the employers will meet the target no

later than 4 years after the SIP is submitted. The target APO must be

at least 25 percent higher than the AVO for the nonattainment area.

On November 15, 1993 the State of Wisconsin submitted a SIP

revision to [[Page 5868]] the EPA to satisfy the requirements of

section 182(d)(1)(B) of the Act. In order to receive approval, the

State submittal must contain each of the following ECO Program

elements: (1) The AVO for each nonattainment area; (2) the target APO

which is no less than 25 percent above the AVO; (3) an ECO program that

includes a process for compliance demonstration; and (4) enforcement

procedures to ensure submission and implementation of compliance plans

by subject employers. Pursuant to section 108(f) of the Act, the EPA

issued guidance on December 17, 1992 interpreting various aspects of

the statutory requirements (Employee Commute Options Guidance, December

1992). A copy of this guidance has been included in this rulemaking

docket.

II. Analysis

The State has met the requirements of section 182(d)(1)(B) by

submitting a SIP revision that implements all required ECO Program

elements as discussed below.

1. The Average Vehicle Occupancy

Section 182(d)(1)(B) requires that the State determine the AVO at

the time the SIP revision is submitted. The State has met this

requirement by determining that the AVO for the Milwaukee area, at the

time of SIP submittal, was 1.14, based on a home interview survey

conducted by the Southeast Wisconsin Regional Planning Commission. The

EPA concludes that this survey accurately represents the Milwaukee

ozone nonattainment area AVO.

2. The Target APO

Section 182(d)(1)(B) indicates that the target APO must be at least

25 percent above the AVO for the nonattainment area. An approvable SIP

revision for this program must include the target APO. The State has

met this requirement by setting the target APO at 1.40 which is 25

percent above the AVO of 1.14.

3. ECO Program

State or local law must establish ECO Program requirements for

employers with 100 or more employees at a worksite within severe and

extreme ozone nonattainment areas. In the ECO Program Guidance issued

in December 1992 the EPA states that automatic coverage of employers of

100 or more should be included in the law. In addition, States should

develop procedures for notifying subject employers regarding the ECO

Program requirements.

States and/or local laws must require that initial compliance plans

``convincingly demonstrate'' prospective compliance. Approval of the

SIP revision depends on the ability of the State/local regulations to

ensure that the Act requirement that initial compliance plans

``convincingly demonstrate'' compliance will be met. This demonstration

can take on any of four forms or any combination of these.

One option is for the State to provide evidence that State agency

resources are available for the effective plan-by-plan review of

employer-selected measures to ensure the high quality of compliance

plans, and demonstrate that plans that are not convincing will be

rejected.

As explained more fully in the EPA's Technical Support Document,

the State of Wisconsin has met this requirement by providing evidence

in the SIP that agency resources are available to implement the ECO

program in an effective manner. Section 144.3712 of the Wisconsin

Statutes authorizes the WDNR to administer the ECO program in the

Milwaukee area. Administrative and training costs for the program will

be provided by the State, as well as through monies received through

Congestion Mitigation and Air Quality (CMAQ) provisions of the

Intermodal Surface Transportation Efficiency Act (ISTEA). To ensure

compliance, State regulations establish requirements for the WDNR to

notify employers of the ECO program requirements, as well as

prescribing schedules for the submittal of compliance plans by

employers. Also contained in Wisconsin's ECO rule is a requirement that

employers designate and register at least one employee transportation

coordinator for purposes of administering the ECO program at individual

worksites. Wisconsin's ECO rule requires that employers submit

compliance plans by November 15, 1994 with full compliance with the

program requirements by November 15, 1996. The EPA believes that the

State's demonstration that adequate resources are available to

implement the program is acceptable and sufficient to achieve the

effective plan-by-plan review of employer-selected measures to ensure

the high quality of compliance plans.

4. Enforcement Procedures

States and local jurisdictions must include in their ECO

regulations penalties and/or compliance incentives for an employer who

fails to submit a compliance plan or an employer who fails to implement

an approved compliance plan according to the compliance plan's

implementation schedule. Penalties should be sufficient to provide an

adequate incentive for employers to comply and be no less than the

expected cost of compliance. Wisconsin's ECO SIP has met this

requirement by including in its ECO regulations severe penalties for

failure to comply with provisions of the regulation. A violator may be

subject to fines of up to $25,000 per day per violation.

III. Final Rulemaking Action

The State of Wisconsin has submitted a SIP revision that includes

each of the ECO Program elements required by section 182(d)(1)(B) of

the Act and EPA guidance issued pursuant to section 108(f) of the Act.

The SIP includes a verifiable estimate of the areawide AVO at the time

that the SIP was submitted and a target APO that is at least 25 percent

above the areawide AVO. Employers with more than 100 employees are

required to submit compliance plans to the State that convincingly

demonstrate that the plan will increase the APO per vehicle in

commuting trips between home and the worksite during peak travel

periods to a level not less than 25 percent above the areawide AVO for

all such trips. EPA is, therefore, approving this submittal.

IV. Procedural Background

Because EPA considers this action noncontroversial and routine, we

are approving it without prior proposal. The action will become

effective on April 3, 1995. However, if the EPA receives adverse

comments by March 2, 1995, then the EPA will publish a document that

withdraws this action, and will address the comments received in

response to the requested SIP revision which has been proposed for

approval in the proposed rules section of this Federal Register.

Comments will be addressed in the final rule on the proposal. The EPA

will not initiate a second comment period on this action.

This action has been classified as a Table 2 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. A future document will inform the general public of

these tables. On January 6, 1989, the Office of Management and Budget

(OMB) waived Table 2 and Table 3 SIP revisions (54 FR 2222) from the

requirements of section 3 of Executive Order 12291 for 2 years. The EPA

has submitted a request for a permanent waiver for Table 2 and Table 3

SIP revisions. The OMB has agreed to continue the temporary waiver

until such time as it rules on EPA's request. This request continues in

effect under Executive Order 12866, which superseded Executive Order

12291 on [[Page 5869]] September 30, 1993. The 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 State Implementation Plan. Each request for revision to

any State Implementation Plan 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., 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 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 any small entities affected. 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 EPA to base its actions concerning SIPs on such grounds.

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

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Nitrogen oxide, Ozone, Volatile organic compounds.

Dated: December 19, 1994.

David A. Ullrich,

Acting 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 52.2570 is amended by adding paragraph (c)(77) to read

as follows:

Sec. 52.2570 Identification of plan.

* * * * *

(c) * * *

(77) On November 15, 1993, the State of Wisconsin submitted a

revision to the State Implementation Plan (SIP) for the implementation

of an employee commute options (ECO) program in the Milwaukee-Racine,

severe-17, ozone nonattainment area. This revision included Chapter NR

486 of the Wisconsin Administrative Code, effective October 1, 1993,

and Wisconsin Statutes sections 144.3712, enacted on April 30, 1992 by

Wisconsin Act 302.

(i) Incorporation by reference.

(A) Chapter NR 486 of the Wisconsin Administrative Code, effective

October 1, 1993.

(B) Wisconsin Statutes, section 144.3712, enacted on April 30, 1992

by Wisconsin Act 302.

[FR Doc. 95-2284 Filed 1-30-95; 8:45 am]

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