[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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