Approval and Promulgation of Implementation Plan; Wisconsin

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WI67-01-7276; FRL-5501-5]

Approval and Promulgation of Implementation Plan; Wisconsin

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: This notice proposes approval of a revision to the Wisconsin

State Implementation Plan (SIP) to meet the requirements of the EPA

transportation conformity rule set forth at 40 CFR part 51 subpart T--

Conformity to State or Federal Implementation Plans of Transportation

Plans, Programs, and Projects Developed, Funded or Approved Under Title

23 U.S.C. or the Federal Transit Act. The transportation conformity SIP

revision will enable the State of Wisconsin to implement and enforce

the Federal transportation conformity requirements at the State or

local level in accordance with 40 CFR 51.396(b). This notice of

approval is limited only to 40 CFR part 51, subpart T (transportation

conformity). SIP revisions submitted under 40 CFR part 51, subpart W,

relating to conformity of general Federal actions, will be addressed in

a separate EPA notice. This notice provides the rationale for the

proposed approval and other information.

DATES: Comments on this proposed action must be received by June 10,

1996.

ADDRESSES: Written comments should be sent to: Carlton T. Nash, Chief,

Regulation Development section, Air Programs Branch (AR-18J), USEPA,

Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-3590.

Copies of the SIP revision, public comments and EPA's responses are

available for inspection at the following address: United States

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

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

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

Region 5 Office.)

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 S.W., Washington, D.C.

20460, (202) 260-7548.

FOR FURTHER INFORMATION CONTACT: Michael G. Leslie, Regulation

Development Section (AR-18J), Air Programs 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

Section 176(c) of the Clean Air Act (CAA), 42 U.S.C. Sec. 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 which has been approved or promulgated pursuant to the CAA.

Conformity is defined as conformity to the SIP's purpose of eliminating

or reducing the severity and number of violations of the National

Ambient Air Quality Standards and achieving expeditious attainment of

such standards, and 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 CAA requires EPA to promulgate criteria

and procedures for determining conformity of all Federal actions

(transportation and general) to applicable SIPs. The EPA published the

final transportation conformity rules in the November 24, 1993, Federal

Register and codified them at 40 CFR part 51 subpart T--Conformity to

State or Federal Implementation Plans of Transportation Plans,

Programs, and Projects Developed, Funded or Approved Under Title 23

U.S.C. or the Federal Transit Act. The conformity rules require States

and local agencies to adopt and submit to the EPA a transportation

conformity SIP revision not later than November 24, 1994. This notice

does not address the conformity requirements applicable to general

Federal actions which are set forth at 40 CFR part 51 subpart W. The

EPA will take action on SIP revisions

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relating to those requirements in a separate notice.

II. Evaluation of the State's Submittal

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

the Wisconsin Department of Natural Resources (WDNR) submitted a SIP

revision to the EPA on November 23, 1994, and supplemented this

submittal on June 14, 1995. In its submittal, the State included

provisions required by the EPA transportation conformity rule (40 CFR

part 51, subpart T), and Memoranda of Agreements (MOA) between the

affected agencies.

Transportation conformity is required for all areas which are

designated nonattainment or maintenance for any transportation related

criteria pollutants. The State of Wisconsin currently has 11 counties

designated as nonattainment for ozone. The areas for which

transportation conformity determinations are required and which are

included as part of Wisconsin's submittal include the following

nonurbanized counties: Door, Keewaunee, and Manitowoc. The urbanized

areas include: Milwaukee-Racine Consolidated Metropolitan Statistical

Area (MSA) (Kenosha, Milwaukee, Ozaukee, Racine, Walworth, Washington,

and Waukesha Counties), and Sheboygan MSA (Sheboygan County).

The WDNR held a public hearing on its transportation conformity

submittal on January 11 and 12, 1995. Minor modifications were made in

response to the comments and addressed in the final submittal.

The consultation section of the EPA transportation conformity rule

(40 CFR 51.402) requires that the SIP revision include procedures for

interagency consultation among the Federal, State, and local agencies

and for resolution of conflicts in accordance with the criteria set

forth in 40 CFR 51.402. Specifically, the SIP revision must include

processes and procedures to be undertaken by Metropolitan Planning

Organizations (MPO), State departments of transportation, and the

United States Department of Transportation (USDOT) with State and local

air quality agencies and EPA before making a conformity determination,

and by State and local air quality agencies and EPA with MPOs, State

departments of transportation, and USDOT in developing applicable SIPs.

In order to satisfy these requirements, the WDNR developed an ad

hoc multi-agency committee, which included representatives from the

WDNR, Wisconsin Department of Transportation (WDOT), USDOT, and MPOs.

This group developed the final consultation rule by integrating the

requirements of 40 CFR 51.402 and 23 CFR part 450 with the local

procedures and processes. Wisconsin's final consultation rule outlines

the roles and responsibilities of each of the affected agencies for the

process for determining conformity. The consultation rule further

outline the procedures for conflict resolution in the transportation

conformity process, for implementation of the public participation

process, and for the submission of documentation relating to a

conformity determination. The conformity SIP revision submitted by

Wisconsin has adequately addressed all provisions of 40 CFR 51.402 and

thus meets the EPA SIP requirements.

Section 51.396(c) of the transportation conformity rule states that

to be approvable by the EPA, the SIP revision submitted to EPA must

address all requirements of the transportation conformity rule in a

manner which gives them full legal effect. In particular, the revision

must incorporate the provisions of the following sections of the rule

in verbatim form, except insofar as needed to give effect to a stated

intent in the revision to establish criteria and procedure more

stringent than the requirements stated in these sections: 51.392,

51.394, 51.398, 51.400, 51.404, 51.410, 51.412, 51.414, 51.416, 51.418,

51.420, 51.422, 51.424, 51.426, 51.428, 51.430, 51.432, 51.434, 51.436,

51.438, 51.440, 51.442, 51.444, 51.446, 51.448, 51.450, 51.460, and

51.462. The State of Wisconsin submittal incorporated all of the above

sections in verbatim form, except for Secs. 51.424, 51.434, 51.442,

51.444, and 51.446. The omitted sections apply only to criteria and

procedures for localized Carbon Monoxide hot spots, Particulate Matter

areas, and Nitrogen Dioxide areas. Noting this, these sections of the

transportation conformity rule are not applicable to the State of

Wisconsin, which contains nonattainment areas for ozone.

On August 7, 1995, EPA finalized an amendment to section 51.448. It

should be noted that additional sections of the conformity rule are

scheduled to be amended. The EPA cannot approve sections into the SIP

where inconsistencies exist between the submittal and the final rule.

After EPA further amends the conformity rule, the State of Wisconsin

will be required to update the SIP to address the rule changes.

The WDNR and the WDOT concluded that this SIP revision in the form

of a MOA will be enforceable through section 144.31(1)(e) and section

144.371, Wis. Stats. The MOA, which is a binding agreement among the

affected agencies, outlined each agency's roles and responsibilities in

the transportation conformity process. A total of three MOA were

included in the SIP revision; two MOAs between the local MPO, MDOT and

MDNR for the two metropolitan areas, and one MOA between WDOT and WDNR

for the remaining rural areas.

Section 85.02, Wis. Stats. requires all agencies involved in

transportation related activities to follow the recommendations of the

WDOT. The WDOT has the authority over the approval of all

Transportation Improvement Programs (TIP) and the approval of Federal

and State funds for transportation projects, programs, or plans. The

WDOT will not approve any MPO TIP that contains a nonconforming project

in the State TIP. Furthermore, the WDOT will not approve Federal or

State funding for any nonconforming projects, programs, or plans and

may withhold moneys for failure to follow conformity procedures.

Section 30.12(4), Wis. Stats., gives the transportation conformity

agreements between WDNR and WDOT full legal effect in Wisconsin. This

law requires WDOT to follow its agreement with WDNR or be subject to

the prohibitions or permit or approval requirements under sections

29.29, 30.11, 30.12, 30.123, 30.195, 30.20, 59.971, 61.351, 62.231,

87.30 and chapters 144 and 147, Wis. Stats.

Section 1.11, Wis. Stats., the Wisconsin Environmental Policy Act,

may be enforced by citizens with regard to activities of WDNR and WDOT.

III. EPA Action

The EPA is proposing approval the transportation conformity SIP

revision for the State of Wisconsin. The EPA has evaluated this SIP

revision and has determined that the State has fully adopted the

provisions of the Federal transportation conformity rules in accordance

with 40 CFR part 51 subpart T. The appropriate public participation and

comprehensive interagency consultations have been undertaken during

development and adoption of this SIP revision.

IV. Miscellaneous

A. Applicability to Future SIP Decisions

Nothing in this action should be construed as permitting, allowing

or establishing a precedent for any future request for revision to any

SIP. The EPA shall consider each request for revision to the SIP in

light of specific technical, economic, and environmental factors

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and in relation to relevant statutory and regulatory requirements.

B. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget has exempted

this regulatory action from E.O. 12866 review.

C. Regulatory Flexibility

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.

This approval does not create any new requirements. Therefore, I

certify that this action 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 the regulatory

flexibility analysis would constitute Federal inquiry into the economic

reasonableness of the 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).

Under section 202 of the Unfunded Mandates Reform Act of 1995

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

the private sector, of $100 million or more. Under section 205, the 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 the EPA to establish a

plan for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

The EPA has determined that the approval action promulgated today

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 Federal requirements. Accordingly, no

additional costs to State, local, or tribal governments, or the private

sector, result from this action.

D. Petitions for Judicial Review

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 July 9, 1996. 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, Hydrocarbons,

Intergovernmental relations, Ozone, Transportation conformity,

Transportation-air quality planning, Volatile organic compounds.

Authority: 42 U.S.C. 7401-7671q.

Dated: April 26, 1996.

David A. Ullrich,

Acting Regional Administrator.

[FR Doc. 96-11759 Filed 5-9-96; 8:45 am]

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