[Federal Register Volume 60, Number 6 (Tuesday, January 10, 1995)]
[Proposed Rules]
[Pages 2565-2568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-551]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[WI45-01-6501; FRL-5136-3]


Approval and Promulgation of Implementation Plans; Wisconsin

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: USEPA proposing to approve the State Implementation Plan (SIP) 
revision, 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 rationale for this proposed approval is set forth below; 
additional information is available at the address indicated below.

DATES: Comments on this proposed rule must be received on or before 
February 9, 1995.

ADDRESSES: Written comments should be sent to: Carlton T. Nash, Chief, 
Regulation Development Section, Air Toxics and Radiation Branch (AT-
18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, 
Chicago, Illinois 60604.
    Copies of the Wisconsin SIP revision request and USEPA's analysis 
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.) U.S. Environmental Protection Agency, 
Region 5, Air and Radiation Division, 77 West Jackson Boulevard, 
Chicago, Illinois 60604.
    A copy of the Wisconsin SIP revision request is available for 
inspection at the office of: Jerry Kurtzweg (ANR-443), U.S. 
Environmental Protection Agency, 401 M Street, S.W., Washington, D.C. 
20460.

FOR FURTHER INFORMATION CONTACT: Michael G. Leslie, Air Toxics and 
Radiation Branch, Regulation Development Section (AT-18J), U.S. 
Environmental Protection Agency, Region 5, Chicago, Illinois 60604, 
(312) 353-6680.

SUPPLEMENTARY INFORMATION:

I. Background

    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).
    For certain program required under the Act (including VMT-Offset), 
USEPA had earlier adopted a policy pursuant to section 110(k)(4) of the 
Act to conditionally approve SIPs that committed to provide the USEPA 
by a [[Page 2566]] date certain. That interpretation was challenged in 
the Natural Resources Defense Council v. Browner consolidated lawsuits 
brought in the United States Court of Appeals for the District of 
Columbia Circuit. In a full opinion dated May 6,1994 (and in a March 8, 
1994 and April 22, 1994 Amended order issued earlier) the court found 
that USEPA's conditional approval interpretation exceeded USEPA's 
statutory authority. While the court opinion did not specifically 
address the VMT offset program in its opinion or orders, USEPA believes 
that the courts general conclusion that the Agency's construction of 
the conditional approval provision was unlawful, and precludes USEPA 
from taking action to approve any submitted VMT offset committal sip 
revision request.
    On October 4, 1993 the USEPA published a proposed rule (58 FR 
51593) to conditionally approve Wisconsin's commitment for the VMT 
Offset requirement. In light of the court opinion, USEPA has decided 
not to go forward with the conditional approval of the VMT Offset 
committal SIPs, but believes that it would be appropriate to interpret 
the VMT Offset provisions of the Act to account for how States can 
practicably comply with each of the provision's elements, as discussed 
in detail below.
    The VMT Offset provision requires that States submit by November 
15, 1992 specific enforceable TCMs and Strategies to offset any growth 
in emissions from growth VMT or number of vehicle trips, sufficient 
enough to allow total area emissions to comply with the RFP and 
attainment requirements of the Act. The USEPA has observed that these 
three elements (i.e. offsetting growth in mobile source emissions, 
attainment of the RFP reduction, and attainment of the ozone National 
Ambient Air Quality Standard (NAAQS) create a timing problem of which 
Congress was perhaps not fully aware. As discussed in USEPA's April 16, 
1992 General Preamble to Title I, ozone areas affected by this 
provision were not otherwise required to submit SIPs that show 
attainment of the 1996 15 percent Rate-of-Progress (ROP) milestone 
until November 15, 1993 and likewise are not required to demonstrate 
post-1996 RFP and attainment of the NAAQS until November 15, 1994. The 
SIP revisions due on November 15, 1993 and November 15, 1994 are 
broader in scope than growth in VMT or vehicle trips in that they 
necessarily address emissions trends and control measures for non motor 
vehicle emissions sources and, in the case of attainment 
demonstrations, complex photochemical modeling studies.
    The USEPA does not believe that Congress intended the VMT Offset 
provisions to advance the dates for these broader submissions. Further, 
USEPA believes that the November 15, 1992 date would not allow 
sufficient time for States to have fully developed specific sets of 
measures that would comply with all of the elements of the VMT Offset 
requirements of section 182(d)(1)(A) over the long term. Consequently, 
USEPA believes it would be appropriate to interpret the Act to provide 
the following alternative set of staged deadlines for submittal of the 
elements of the VMT Offset SIP.

II. Review Criteria

    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.
    Under this approach, the first element, the emissions growth offset 
element, was due on November 15, 1992. The USEPA believes this element 
is not necessarily dependent on the development of the other elements. 
The State could submit the emissions growth offset element independent 
of an analysis of that element's consistency with the RFP or attainment 
requirements of the Act. Emissions trends from other sources need not 
be considered to show compliance with this offset element. As 
submitting this element does not implicate the timing problem of 
advancing the deadlines for RFP and attainment demonstrations, USEPA 
does not believe it is necessary to extend the statutory deadline for 
submittal of the emissions growth offset element. The first element 
requires that a State submit a revision that demonstrates the trend in 
motor vehicle emissions from a 1990 baseline to the year for attaining 
the NAAQS for ozone. As described in the General Preamble, the purpose 
is to prevent growth in motor vehicle emissions from canceling out the 
emissions reduction benefits of the federally mandated programs in the 
Act. The USEPA interprets section 182(d)(1)(A) to require that 
sufficient measures be adopted so that projected motor vehicle VOC 
emissions will never be higher during the ozone season in 1 year, than 
during the ozone season in the year before. When growth in VMT and 
vehicle trips would otherwise cause a motor vehicle emissions upturn, 
this upturn must be prevented. The emissions level at the point of 
potential upturn becomes a ceiling on motor vehicle emissions. This 
requirement applies to projected emissions in the years between the 
submission of the SIP revision and the attainment deadline and is above 
and beyond the separate requirements for the RFP and attainment 
demonstration.
    The ceiling is therefore defined, up to the point of upturn, as 
motor vehicle emissions that would occur in the ozone season of that 
year, with VMT growth, if all measures for that area in that year were 
implemented as required by the Act. When this curve begins to turn up 
due to growth in VMT or vehicle trips, the ceiling becomes a fixed 
value. The ceiling would include the effects of Federal measures such 
as new motor vehicle standards, Phase II Reid Vapor Pressure (RVP) 
controls, and reformulated gasoline, as well as Act mandated SIP 
requirements such as enhanced inspection and maintenance, the clean-
fuel vehicle fleet program, and the employee commute options (ECO) 
program. The ceiling would also include the effect of forecasted growth 
in VMT and vehicle trips in the absence of new discretionary measures 
to reduce them. Any VMT reduction measures or other actions to reduce 
motor vehicle emissions adopted since November 15, 1990 that are not 
specifically required for the area by another provision of the Act 
would not be included in the calculation of the ceiling.
    If projected motor vehicle emissions for the ozone season in 1 year 
are not higher than the projected motor vehicle emissions during the 
previous year's ozone season, given the control measures in the SIP, 
the VMT offset requirement is satisfied. [[Page 2567]] 
    Projected motor vehicle emissions must be held at or below the 
level of the ceiling. Offset measures implemented earlier than required 
and sufficient to prevent an emissions upturn, will be viewed as a 
temporary reduction in emissions to a level below the ceiling required 
by this provision. In this case, the forecasted motor vehicle emissions 
could increase from 1 year to the next, as long as forecasted motor 
emissions never exceed the ceiling.
    Under the staged submittal approach, the second element, which 
requires the VMT offset SIP to be consistent with the 15 percent ROP 
reduction requirements of the Act, was due on November 15, 1993 which 
is the same date on which the 15 percent ROP SIP was due under section 
182(b)(1) of the Act. USEPA believes that it is reasonable to extend 
the deadline of this element to the date on which the entire 15 percent 
periodic reduction SIP was due under section 182(b)(1)(A) of the Act, 
since this allows States to develop a more comprehensive strategy to 
address the ROP requirement and assure that the TCM elements of that 
strategy required under section 182(d)(1)(A) are consistent with the 
remainder of the ROP demonstration.
    The third element requires the VMT offset SIP to comply with the 
post-1996 RFP and attainment requirements of the Act and to identify 
and adopt specific enforceable transportation control strategies and 
TCMs. The due date for submittal of this element is extended to 
November 15, 1994 under the staged submittal approach. USEPA believes 
that the deadline for this element can be reasonably extended to 
November 15, 1994 because the broader post-1996 RFP and attainment SIP 
demonstrations are not due until that date. This extension will enable 
the State to ensure that the TCM elements of the broader submittals are 
consistent with the States' overall post-1996 RFP and attainment 
strategies. Indeed, it is arguably impossible for a State to make the 
showing for the third element until the broader demonstrations have 
been developed by the State, and extending the submittal date will 
result in a better program for reducing emissions in the long term.

III. Summary of State Submittal

    The State of Wisconsin has submitted a SIP revision implementing 
the first two required elements contained in section 182(d)(1)(A) of 
the Act.
    Mobile source emissions are a function of many specific factors 
including vehicle fleet, age and mix, the Reid Vapor Pressure ((RVP) 
fuel volatility), and temperature. The magnitude of mobile source 
emissions is particularly a function of vehicle speeds and the amount 
of VMT. To obtain mobile source emissions, the usual process is to 
multiply VMT by an appropriate emission factor to derive an estimate of 
total motor vehicle emissions.
    The State has met the requirement of the first element of section 
182(d)(1)(A) by forecasting VMT from the year 1990 to the year 2007, 
and then estimating mobile source emissions by applying USEPA's 
required mobile source emissions factor model MOBILE5a to generate the 
appropriate emissions factors for the analysis. This analysis shows a 
continued decrease in emissions throughout the analysis period without 
the implementation of additional TCMs.
    In developing the VMT offset program, WDNR modeled a mobile source 
control program for the offset analysis which included: the Federal 
Motor Vehicle Control Program, Phase II RVP controls, Reformulated 
gasoline, VMT reductions due to the implementation of the ECO program, 
a Enhanced Inspection/Maintenance (I/M) program, and an Anti-Tampering 
Program (ATP). WDNR generated Emissions Factors (EF) for the analysis 
using the USEPA mobile source emissions factor model MOBILE5a.
    The first step in the analysis of projected mobile source emissions 
was to project the area's VMT from the 1990 levels to 2007. The 1990 
level of VMT (estimated to be 37,988,300 miles per day) was developed 
for the 1990 base year inventory, and was submitted to USEPA on July 
16, 1993 was prepared by the Southeastern Wisconsin Regional Planning 
Commission (SEWRPC), the Metropolitan Planning Organization for the 
severe ozone nonattainment area. The aggregate 1990 VMT level was then 
projected to year 2007 level by using a 2.0 percent growth rate. This 
growth rate corresponds to the growth rate used in the ROP plan. The 
2.0 percent per year increase in VMT will result in a total VMT growth 
of 40 percent for the analysis period.
    The aggregate VMT was adjusted for the implementation of the ECO 
program. In years 1996 and 1997 the ECO program was assumed at two-
thirds effectiveness, yielding a 2-percent reduction of VMT. In years 
1998 through 2007 the ECO program was assumed at full effectiveness, 
yielding a 3-percent reduction of VMT.
    The next step in the analysis was to develop an aggregate EF for 
each analysis year. Four speeds were modeled to obtain EFs for the 
analysis: 15 mph, 25 mph, 40 mph, and 62 mph. These speeds were used to 
represent the varied operating conditions which exist for the severe 
ozone nonattainment area roadway system. The percentages of aggregate 
VMT for the speeds of 15 mph, 25 mph, 40 mph, and 62 mph, were 10 
percent, 30 percent, 39 percent, and 21 percent, respectively. These 
VMT percentages can be directly translated into EF percentages, i.e., 
EF15 mph = 0.10 EFtotal, EF25 mph = 0.30 EFtotal, 
EF40 mph = 0.39 EFtotal, EF62 mph = 0.21 EFtotal. 
Each of the generated emissions factors were multiplied by the 
appropriate EF percentage and then added to yield an aggregate 
emissions factor. The percentage of breakdown in VMT as a percentage of 
total VMT is based on the information included in the 1990 base year 
inventory.
    The aggregate average was multiplied by an inventory adjustment 
factor of 1.0207 yielding a Final Emissions Factor (FEF). This 
inventory adjustment was performed so that the 1990 level of total 
emissions in the VMT offset analysis was consistent with 1990 base year 
inventory (a total of 147.2 tons/day for the six severe ozone 
nonattainment counties). Finally, the amount of VOC emissions per year 
was calculated by multiplying the FEF and the aggregate VMT adjusted 
for ECO implementation.
    The State of Wisconsin's submittal predicts that the growth in VMT 
in the Milwaukee severe ozone area will not result in a mobile source 
emissions upturn. This prediction of a continued decline in mobile 
source emissions beyond the attainment year demonstrates satisfaction 
of the first element.
    Wisconsin submitted a 15-percent ROP SIP for Milwaukee severe ozone 
to the USEPA in November 1993, but the submittal was found incomplete 
in a letter dated January 21, 1994. Although the ROP SIP contained 
feasible measure that could add up to the required 15 percent reduction 
in emissions, the SIP submittal was found incomplete because it lacked 
enforceable regulations. In the submittal, the State indicated it would 
attain its 15 percent reduction in VOCs by 1996 without relying on 
TCMs. Consequently, Wisconsin has shown that it does not plan to submit 
specific enforceable TCMs for the second VMT offset SIP element.
    The State is in the process of developing fully enforceable 
regulations that achieve a 15-percent reduction in VOCs. The USEPA is 
proposing approval of the second VMT offset SIP element, but will not 
take final action on this element until the State has submitted a 
complete 15 percent ROP plan and the USEPA is certain that it 
[[Page 2568]] need not evaluate these TCMs for purposes of the second 
element.
    WDNR is currently working with the State Department of 
Transportation, SEWRPC, and the Lake Michigan Regional States to assess 
the emissions reductions and the need to implement TCMs to meet the 
post-1996 RFP and attainment demonstration for the area. The State is 
required to submit a list of TCMs used to meet the post-1996 and 
attainment requirements of the Act by November 15, 1994. This third 
element of the VMT offset SIP will be the subject of a future 
rulemaking.

II. Proposed Rulemaking

    In this action, USEPA is proposing to approve the first two 
elements of the VMT offset SIP revision submitted by the State of 
Wisconsin. It is noted that the USEPA will not take final action on the 
second element until the State has submitted a complete 15 percent ROP 
plan. The third element of the Wisconsin VMT offset SIP will be the 
subject of a future rulemaking. Public comment is solicited on the 
request SIP revision and USEPA's proposed action. Comments received by 
February 9, 1995 will be considered in the development of USEPA's final 
rule.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. USEPA shall consider each request for revision to the SIP in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

Procedural Background

    This document 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 Shapiro, Acting Assistant 
Administrator for Air and Radiation.

Administrative 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 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 this does 
not have a significant impact on 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 USEPA to base its actions concerning SIPs on such grounds. 
See Union Electric CO. v. U.S.E.P.A. , 427 U.S. 246, 256-66 (1976); 42 
U.S.C. 7410(a)(2).

Executive Order 12866

    The Office of Management and Budget has exempted this rule from the 
requirements of Executive Order 12866.

List of Subjects in 40 CFR Part 52

    Environmental Protection, Air Pollution Control, Ozone.

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

    Dated: December 19, 1994.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 95-551 Filed 1-9-95; 8:45 am]
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