[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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