[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Rules and Regulations]
[Pages 9639-9642]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5735]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WI64-01-7148a; FRL-5416-8]
Approval and Promulgation of State Implementation Plan;
Wisconsin; Clean-Fuel Fleet Program
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Direct final rule.
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SUMMARY: In this action, U.S. Environmental Protection Agency (USEPA)
is approving a revision to the Wisconsin State Implementation Plan
(SIP) for the purpose of establishing a Clean-Fuel Fleet Program.
Wisconsin submitted the SIP revision request to satisfy a federal
mandate, found in the Clean Air Act, requiring certain states to
establish Clean-Fuel Fleet Programs. This revision establishes and
requires the implementation of a Clean-Fuel Fleet Program in the
Milwaukee ozone nonattainment area.
DATES: This ``direct final'' rule is effective May 10, 1996, unless
USEPA receives adverse or critical comments by April 10, 1996. If the
effective date is delayed, timely notice will be published in the
Federal Register.
ADDRESSES: Comments may be mailed to: Carlton T. Nash, United States
Environmental Protection Agency, Region 5, Air and Radiation Division,
Air Programs Branch (AP-18J), 77 West Jackson Boulevard, Chicago,
Illinois, 60604.
Copies of the documents relevant to this action are available at
the above address for public inspection during normal business hours.
FOR FURTHER INFORMATION CONTACT: Brad J. Beeson at (312) 353-4779.
SUPPLEMENTARY INFORMATION:
I. Background
On November 15, 1990, Congress enacted amendments to the 1977 Clean
Air Act (CAA), codified at 42 U.S.C. 7401-7671q. The Clean-Fuel Fleet
Program (CFFP) is contained under Part C, entitled ``Clean Fuel
Vehicles,'' of Title II of the Clean Air Act. Part C was added to the
CAA to establish two programs, a clean-fuel vehicle pilot program in
the state of California (the California Pilot Test Program) and a
federal CFFP in certain ozone and carbon monoxide (CO) nonattainment
areas.
The CFFP will introduce lower pollution emitting vehicles, ``clean-
fuel vehicles'' (CFVs), into centrally-fueled fleets by requiring
covered fleet operators to include a percentage of CFVs in their new
fleet purchases. The goal of the CFFP is to reduce emissions of non-
methane organic gasses (NMOG), oxides of nitrogen (NOx), and CO through
the introduction of CFVs into the covered areas. Both NMOG and NOx are
precursors of ozone and, in most areas, their reduction will reduce the
concentration of ozone in covered ozone nonattainment areas. Reductions
of vehicular CO emissions will reduce the
[[Page 9640]]
concentration of CO in covered CO nonattainment areas.
Congress chose centrally-fueled fleets because operators of these
fleets have more control over obtaining fuel than the general public.
Additionally, the control that operators maintain over their fleets
simplifies maintenance and refueling of these vehicles. Finally,
because fleet vehicles typically travel more miles on an annual basis
than do non-fleet vehicles, they provide greater opportunity to improve
air quality on a per vehicle basis.
Section 182(c)(4) of the CAA allows states to opt-out of the CFFP
by submitting, for EPA approval, a SIP revision consisting of a
substitute program resulting in as much or greater long term emission
reductions in ozone producing and toxic air emissions as the CFFP. The
EPA may approve such a revision ``only if it consists exclusively of
provisions other than those required under the [CAA] for the area.''
II. Program Requirements
Unless a state chooses to opt-out of the CFFP under section
182(c)(4) of the CAA, section 246 of the CAA directs a state containing
covered areas to revise its SIP, within 42 months after enactment of
the CAA, to establish a CFFP. The CFFP shall require a specified
percentage of all newly acquired vehicles of covered fleets, beginning
with model year (MY) 1998 and thereafter, to be CFVs and such vehicles
shall use the fuel on which the vehicle was certified to be a CFV (or
to use a fuel that will result in even fewer emissions than the fuel
that was used for certification), when operating in the covered area.
III. State Submittal
The state of Wisconsin did not choose to opt-out of the CFFP
pursuant to section 182(c)(4) of the CAA and, therefore, submitted a
SIP revision on May 12, 1994, to implement a CFFP. However, because
this submittal did not include a fully adopted rule establishing a
CFFP, EPA deemed the submittal incomplete. On June 7, 1995, the state
made a supplemental submittal that included a fully adopted CFFP rule.
On July 20, EPA determined that the state's SIP submittal for a CFFP
was complete.
IV. EPA's Analysis of the State's Clean Fuel Fleet Program
EPA has reviewed the state's submittal for consistency with the
requirements of EPA regulations. A summary of EPA's analysis is
provided below. More detailed support for approval of the state's
submittal is contained in a Technical Support Document (TSD), dated
September 6, 1995, which is available from the Region 5 Office, listed
above.
A. Covered Areas
The SIP revision needs to list those areas where the CFFP will be
implemented, as required by section 246(a)(2) of the CAA. In Wisconsin,
the applicable areas defined by section 246(a)(2) include Kenosha,
Milwaukee, Ozaukee, Racine, Washington, and Waukesha counties.
Section NR 487.01(1) of the Wisconsin Administrative Code defines
the covered area to include Kenosha, Milwaukee, Ozaukee, Racine,
Washington, and Waukesha counties. These are the same counties as
required by the CAA.
B. Definitions
Sections 241(1) to (7) of the CAA, and 40 CFR 88.302-94, define
specific terms that are to be used in the state regulations.
NR 487.02 contains definitions of the terms used by Wisconsin in
the CFFP rule. The revision's definitions are consistent with section
241(1) to (7) of the CAA as well as 40 CFR 88.302-94.
C. Covered Fleets
Section 241(5) of the CAA defines a ``covered fleet'' as 10 or more
motor vehicles that are owned or operated by a single person.
NR 487.01(1) and 487.02, taken together, identify the vehicles/
fleets that are included in Wisconsin's CFFP, and are consistent with
section 241(5) of the CAA.
D. Vehicles Classes Covered
Sections 242 and 243 of the CAA and 40 CFR part 88, subpart C,
define the vehicle classes covered by the CFFP. Additionally, section
245(a) of the CAA exempts from the CFV standards vehicles having a
Gross Vehicle Weight Rating (GVWR) of more than 26,000 pounds.
NR 487.02(6) and (7) define the vehicle classes covered by the
Wisconsin CFFP. The classes of vehicles included in the Revision are
identical to those set forth in sections 242 and 243 of the CAA and 40
CFR part 88, subpart C, including the 26,000 pound GVWR exemption.
E. Clean-Fuel Vehicles (CFVs)
Section 241(7) of the CAA defines a CFV to mean a vehicle in a
class or category of vehicles that has been certified to meet for any
model year the applicable CFV standards. 40 CFR 88.104-94 and 40 CFR
88.306-94 establish three categories of increasingly stringent CFV
standards, which are referred to as low-emission vehicle (LEV)
standards, ultra low-emission vehicle (ULEV) standards, and zero-
emission vehicle (ZEV) standards. In addition, a vehicle certified by
the EPA to meet the inherently low-emission vehicle (ILEV) standard,
found in 40 CFR 88.311-93, is also considered a CFV.
NR 487.02(6) defines a CFV as a vehicle which has been certified to
meet, for any model year, a set of emission standards, contained in
Table I of the CFFP rule. The standards specified in the rule are the
same as those established in 40 CFR 88.104-94, 40 CFR 88.311-93, and 40
CFR 88.306-944.
F. Percentage Requirements
Section 246(b) of the CAA establishes phase-in requirements for
covered fleets applicable to new vehicle acquisitions.
NR 487.03 contains the CFV purchase requirements for the
Wisconsin's CFFP. The phase-in schedule in Wisconsin's rule is
identical to the schedule in the CAA.
G. Credit Program
Section 246(f) of the CAA and 40 CFR 88.304-94 require the state to
implement a credit program as part of the CFFP. Briefly, the Clean-Fuel
Fleet (CFF) credit program establishes a market-based mechanism that
allows fleet owners some flexibility in complying with the CFF purchase
requirement. Fleet owners may meet the purchase requirements in any of
several ways: (1) By the purchase of more CFVs than the minimum
required by a CFFP; (2) by the purchase of CFVs which meet more
stringent emission standards than the minimum required by the CFFP; (3)
by the purchase of CFVs otherwise exempt from the CFFP; and (4) by the
purchase of CFVs before MY 1998.
The credits generated may be used by a covered fleet operator to
satisfy the purchase requirements of a CFFP or may be traded by one
covered fleet operator to another, provided the credits were generated
and used in, and both operators are located in, the same nonattainment
area. Certain restrictions on the trading of the credits between
classes must be observed. The credits do not depreciate with time and
are to be freely traded without interference by the state.
NR 487.09 establishes a credit program that provides credits for
operators who: (1) acquire more CFVs than the Wisconsin CFFP requires
in any year; (2) acquire CFVs which meet more stringent emission
standards than the minimum requirements; (3) acquire
[[Page 9641]]
CFVs in exempted vehicle categories; or (4) acquire CFVs after November
15, 1990, but prior to MY 1998. These eligibility requirements are
consistent with section 246(f) of the CAA.
NR 487 includes Tables 3, 4, 6, and 7, which set forth the amount
of credit granted for the various ways of meeting the purchasing
requirements explained above. These tables are identical to Tables C94-
2, C94-2.2, C94-4, and C94-4.2 of 40 CFR part 88, subpart C.
The revision requires credits for LDV and HDV to be kept separate.
Trading of credits between LDV and LDT is permitted. However, trading
is not allowed between HDV and LDV or LDT or in an upward direction.
These limitations and restrictions are consistent with those specified
in section 246(f)(2) of the CAA.
H. Fuel Use
40 CFR 88.304-94(b)(3) requires that the fuel on which a dual fuel/
flexible fuel CFV was certified to be used at all times when the
vehicle is in the covered area.
NR 487.03(3) requires that for any dual-fuel/hybrid electric
vehicle to be considered a CFV (and therefore capable of generating
credit), the vehicle must be operated, while in the covered area, on
the fuel or power source, for which it was certified to meet applicable
emission standards.
I. Fuel Availability
Section 246(e) of the CAA requires the SIP revision to require fuel
providers to make clean alternative fuel available to the covered
fleets at central locations.
NR 487.12 requires fuel providers to make clean alternative fuels
available to covered fleet operators at central locations where
technically and economically feasible.
J. Consultation
Section 246(a)(4) of the CAA requires that the SIP revision must be
developed in consultation with fleet operators, vehicle manufacturers,
fuel producers, distributors of motor vehicle fuel, and other
interested parties, taking into consideration operational range,
specialty uses, vehicle and fuel availability, costs, safety, resale
values, and other relevant factors.
The Wisconsin Department of Natural Resources (WDNR) organized a
consultation committee, called the Clean-Fuel Fleet Committee. The
Committee met several times and included representatives from fleet
owners, fleet operators, fuel providers, and environmentalists. The
Committee took into consideration the factors specified in section
246(a)(4) of the CAA.
K. Recordkeeping and Monitoring
No specific recordkeeping and monitoring requirements are found in
section 246 of the CAA or 40 CFR 88.304-94. However, EPA ensures that a
number of questions are answered in order to determine the adequacy of
a CFFP. 60 FR 54305 (Oct. 23, 1995).
(1) Does the SIP revision provide a reasonable process for the
state to determine which fleets should report data to the state,
consistent with the state's approach to ``operated in the covered
area''?
(2) Is there a process for updating this list of potentially
covered fleet operators?
(3) Does the SIP revision include a process for the state agency to
receive at least the following data from fleet operators:
(a) Numbers, categories, and fueling patterns of vehicles in the
fleet?
(b) Numbers, engine family names, categories, and fueling patterns
of new acquisitions?
(c) Numbers, engine family names, categories, and fueling patterns
of CFV acquisitions?
(d) For dual-fuel/flexible-fuel vehicles, data on fuel usage
sufficient to demonstrate that the proper fuel was used when the
vehicle was operated in the covered area?
(4) Does the SIP revision describe how the data will be processed,
maintained, updated, and used to confirm compliance by fleets?
(5) Does the SIP revision provide for oversight of the data
acquisition process?
Information and actions responsive to these questions are provided
as follows:
NR 487.05 requires any person who operates a fleet of 10 or more
CFVs to register with the WDNR.
NR 487.05 also requires the registration to include some
information responsive to the questions above. In addition, NR 487.06
requires covered fleet operators to submit annual compliance plans to
WDNR. All information required in 3(a) to 3(d) above, as well as other
information, is included in these requirements. The information is
reported on balance sheets and item sheets which allows the WDNR to
monitor the performance of the operators. WDNR will review the annual
compliance plans for approval or disapproval in keeping with NR 487.08.
L. Enforcement
The state must be able to adequately enforce the requirements of
the regulations adopted for implementation of the CFFP. 60 FR 54305
(Oct. 23, 1995).
NR 487.14 is the enforcement section of the Wisconsin CFFP. This
section states that fleet operators are subject to WDNR enforcement
procedures and penalties if they fail to comply with any requirement of
NR 487.
M. Transportation Control Measure Exemptions
40 CFR 88.307-94(a) requires states to exempt any CFV, required by
law to participate in a CFFP, from temporal-based (e.g., time-of-day or
day-of-week) transportation control measures (TCM) existing for air
quality reasons as long as the exemption does not create a clear and
direct safety hazard. In the case of high occupancy vehicle (HOV)
lanes, this exemption only applies to CFVs that are certified to be
ILEVs pursuant to 40 CFR 88.313-93.
NR 487.10 exempts CFVs from temporal based TCMs as long as the CFV
is in compliance with applicable emission standards. In addition, NR
487.10(3) specifically exempts ILEVs from HOV restrictions. These TCM
restrictions are consistent with those provided for in 40 CFR 88.307-94
and 40 CFR 88.313-93.
N. Concluding Statement
The EPA has reviewed the Wisconsin CFFP SIP revision submitted to
the EPA as described above. The materials contained in the SIP revision
represent an acceptable approach to the CFFP requirements and meet all
the criteria required for approvability.
V. Action
The EPA approves Wisconsin's CFFP SIP submittal. With this action,
EPA incorporates Wisconsin's CFFP SIP revision into the SIP, making it
federally enforceable.
Because EPA considers this action noncontroversial and routine, we
are approving it without prior proposal. This action will become
effective on May 10, 1996. However, if we receive significant adverse
comments by April 10, 1996, EPA will publish a document that modifies
or withdraws this action.
VI. 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 and in
relation to relevant statutory and regulatory requirements.
[[Page 9642]]
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 May 10, 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,
Incorporation by reference, Intergovernmental relations, Ozone, Motor
vehicle pollution, Reporting and recordkeeping requirements.
Dated: January 17, 1996.
Valdas V. Adamkus,
Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations 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)(87) to read
as follows:
Sec. 52.2570 Identification of plan.
* * * * *
(c) * * *
(87) The state of Wisconsin requested a revision to the Wisconsin
State Implementation Plan (SIP). This revision is for the purpose of
establishing and implementing a Clean-Fuel Fleet Program to satisfy the
federal requirements for a Clean Fuel Fleet Program to be part of the
SIP for Wisconsin.
(i) Incorporation by reference.
(A) Chapter 487 of the Wisconsin Administrative Code, effective
June 1, 1995.
(B) Wisconsin Statutes, section 144.3714, enacted on April 30,
1992, by Wisconsin Act 302.
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[FR Doc. 96-5735 Filed 3-8-96; 8:45 am]
BILLING CODE 6560-50-P