[Federal Register Volume 60, Number 20 (Tuesday, January 31, 1995)]
[Rules and Regulations]
[Pages 5867-5869]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2284]
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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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