[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21412-21414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11759]
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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
[[Page 21413]]
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
[[Page 21414]]
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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