[Federal Register Volume 59, Number 135 (Friday, July 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17302]
[[Page Unknown]]
[Federal Register: July 15, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CT15-1-6080; A-1-FRL-5013-5]
Approval and Promulgation of Air Quality Implementation Plans;
Approval of the Employee Commute Options Program Submitted by the State
of Connecticut Pursuant to Title I, Section 182(d)(1)(B)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The EPA proposes to approve the State Implementation Plan
(SIP) revision submitted by the State of Connecticut for the purpose of
establishing an Employee Commute Options Program (Program). Connecticut
submitted this SIP revision to satisfy the requirement in Section
182(d)(1)(B) of the Clean Air Act (CAA) that, for severe ozone
nonattainment areas, states establish programs under which employers
with 100 or more employees must develop compliance plans which
convincingly demonstrate an increase in the average passenger occupancy
(APO) of commute trips by their employees by no less than 25% above the
average vehicle occupancy (AVO) of the nonattainment area. This action
is being taken under Section 110 of the Clean Air Act. The rationale
for the approval is included in this notice; additional information is
available at the address indicated below.
DATES: Comments on this proposed action must be received in writing by
August 15, 1994. Public comments on this document are requested and
will be considered before taking final action on this SIP revision.
ADDRESSES: Comments may be mailed to Linda M. Murphy, Director, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region I, JFK Federal Bldg. (AAA), Boston, MA 02203.
Copies of the state's submittal and EPA's technical support document
are available for inspection during normal business hours, by
appointment at the U.S. Environmental Protection Agency, Jerry
Kurtzweg, ANR-443, 401 M Street, SW, Washington, D.C. 20460; the Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region I, One Congress Street, 10th floor, Boston,
MA 02203; and the Bureau of Air Management, Department of Environmental
Protection, 79 Elm Street, Hartford, CT 06106.
FOR FURTHER INFORMATION CONTACT: Daniel J. Brown, (617) 565-9048, of
the U.S. Environmental Protection Agency in Boston, MA.
SUPPLEMENTARY INFORMATION: On January 12, February 1, and July 27,
1993, the Connecticut Department of Environmental Protection (DEP)
submitted a revision to its State Implementation Plan (SIP) for air
quality. The revision is designed to satisfy the requirements of
Section 182(d)(1)(B) of the Clean Air Act, as amended in 1990 (CAA).
I. Background
Section 182(d)(1)(B) of the CAA requires that states, in which all
or part of a severe ozone nonattainment area is located, must submit a
SIP revision requiring employers in such areas to reduce work related
trips and miles travelled by employees. Such employee commute option
(ECO) programs are required to minimize the use of single occupant
vehicles for work-related trips, thereby achieving emission reductions
beyond what can be obtained through stricter tailpipe and fuel
standards. Because parts of Connecticut's Fairfield and Litchfield
Counties are in the New York-New Jersey-Connecticut severe
nonattainment area, Connecticut was required to submit an ECO program
covering those parts of the two counties.
Under Section 182(d)(1)(B), Connecticut was required to submit its
ECO SIP revision by November 15, 1992. Connecticut submitted its ECO
SIP on January 12, 1993, and supplemented the program with submittals
on February 1 and July 27, 1993. ECO SIP revisions must, at a minimum,
require that each employer of 100 or more employees increase average
passenger occupancy (APO) per vehicle in commuting trips during peak
travel periods by not less than 25% above the AVO for all such trips in
the area at the time the revision is submitted. To achieve this goal,
the revision must require subject employers to submit compliance plans
to the state two years after the SIP revision is submitted to EPA.
These compliance plans, developed by each subject employer, shall
convincingly demonstrate an increase in the APO of their employees who
commute to work during the morning peak travel period by no less than
25% above the average vehicle occupancy (AVO) of the nonattainment
area. These compliance plans must ``convincingly demonstrate'' that the
employers will meet the target APO (at least 25% above the AVO) not
later than four years after the SIP is submitted. Where there are
important differences in terms of commute patterns, land use, or AVO,
the States may establish different zones within the nonattainment area
for purposes of calculation of the AVO.
EPA is also requesting comments on Connecticut's plan to modify its
SIP submission by revising the definition of ``average vehicle
occupancy'' to replace the requirement that it be calculated on or
before November 15, 1992 with the requirement that it be calculated
using a method acceptable to EPA; revising the definition of
``employer'' to include the State of Connecticut and any political
subdivision of the State rather than a government department; and
revising the dates by which employers of two hundred or more are
required to submit compliance plans. Employers of two hundred or more
will have additional time to submit compliance plans while still being
required to submit plans no later than two years from the date of the
SIP revision. Proposed amendments to the ECO legislation reflecting
these changes are currently before the Connecticut legislature. EPA
agrees with Connecticut that these are minor ``technical'' changes to
the legislation that will not affect the approvability of the ECO SIP.
Therefore, upon Connecticut's submission of a revised ECO SIP
containing these revisions, EPA proposes to approve these revisions to
the SIP in the final rulemaking on this proposal.
Section 110(k) of the CAA contains provisions governing EPA's
review of SIP submittals. Section 110(k) specifies that if the
submittal satisfactorily addresses all of the required Program
elements, EPA shall grant full approval.
II. Analysis
The State of Connecticut has submitted a SIP revision to EPA in
order to satisfy the requirements of Section 182(d)(1)(B). EPA issued
the Employee Commute Options Guidance on December 17, 1992 interpreting
various aspects of the statutory requirements. Under this guidance, to
gain approval, the State submittal must contain each of the following
program elements: (1) the AVO for each nonattainment area or for each
zone if the area is divided into zones; (2) the target APO which is no
less than 25% above the AVO(s); (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.
Connecticut has met the requirements of Section 182(d)(1)(B) by
submitting a SIP revision that implements all required program
elements.
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. Connecticut has met this
requirement by establishing an AVO for the entire Connecticut portion
of the severe nonattainment area. The AVO was calculated to be 1.19
based on the most recent census data and was included as part of the
Connecticut SIP submittal on January 12, 1993. Connecticut has affirmed
that this AVO is representative of the AVO at the time of submittal as
required by Section 182(d)(1)(B).
2. The Target APO
Section 182(d)(1)(B) indicates that the target APO must be not less
than 25% above the AVO for the nonattainment area. An approvable SIP
revision for this program must include the target APO. Connecticut has
met this requirement in the SIP submittal on January 12, 1993, by
including a target APO which is no less than 25% above the AVO.
Connecticut provided EPA with the state regulation describing the
methodology required to be followed by an employer when calculating the
APO for the worksite. This method is consistent with EPA guidance and
is binding on employers. Connecticut specifically requested that the
calculation methodology not be included in the SIP revision since it is
subject to change pending EPA guidance on allowable credit for
alternatively fueled vehicles. EPA has agreed to withhold the APO
calculation from the SIP revision and will audit any revisions to
current methodology for consistency with EPA guidance. In the event
that EPA finds revisions to the APO calculation methodology that are
inconsistent with EPA guidance, EPA will issue a SIP call pursuant to
Section 110(k)(5) of the Act, requiring the appropriate APO calculation
methodology to be incorporated into an ECO SIP revision.
3. ECO Program
State or local law must establish ECO requirements for employers
with 100 or more employees at a worksite within severe and extreme
ozone nonattainment areas and serious carbon monoxide areas. In the ECO
Guidance issued December 1992, 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 requirements.
State and/or local law 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 CAA requirement that initial compliance plans
``convincingly demonstrate'' compliance will be met.
Connecticut has met these requirements, in the February 1, and July
27, 1993 SIP revisions, by including enacted legislation revising the
General Statutes of Connecticut to provide for automatic coverage of
employers of 100 or more located in the portion of Connecticut's
Fairfield and Litchfield Counties which are in the New York-New Jersey-
Connecticut severe nonattainment area. The SIP revision sets forth time
schedules for notifying affected employers and requiring the submittal
and implementation of compliance plans which convincingly demonstrate
an increase in the APO of not less than 25%. The schedule for
submission varies by employer size, but in any event all subject
employers are required to submit a compliance plan, within two years
from the date of the SIP revision, increasing the APO by 25% within
four years from the date of the SIP revision, as required by the CAA.
To ensure that compliance plans ``convincingly demonstrate''
compliance, the Connecticut Department of Transportation, or designated
regional planning agency, shall within 120 days of a plan submittal
evaluate the plan for its ability to convincingly demonstrate
compliance. Employers whose compliance plan does not convincingly
demonstrate compliance will be required to submit, within 60 days of
notification, a revised compliance plan which convincingly demonstrates
compliance. Connecticut will impose financial penalties for employers
who do not submit a compliance plan, or a revised compliance plan,
which convincingly demonstrates compliance. The penalties should be
large enough to result in a significant prospective incentive for the
employer to design and implement an effective initial compliance plan.
The Connecticut ECO legislation includes a provision allowing an
employer's compliance plan to be deemed approved in the absence of a
response following the 120 day evaluation period. EPA believes that
this provision is intended to expedite the approval process for only
those plans which convincingly demonstrate compliance, thereby
promoting early implementation of such plans. EPA is concerned that
such a provision could result in a compliance plan which does not
convincingly demonstrate compliance, being deemed approved in the event
that a notice of inadequacy on such a plan is not provided within the
120 day evaluation period. It is therefore important that the state, or
designated regional planning agency, review and take action promptly on
submitted employer compliance plans. EPA intends to audit Connecticut's
ECO program to assure that compliance plans are being evaluated as
required, and notice is provided to employers whose compliance plans do
not convincingly demonstrate compliance. If EPA finds that such
requirements are not being complied with, EPA will issue a SIP call
pursuant to Section 110(k)(5) of the Act, requiring Connecticut to
submit a revision to the ECO SIP eliminating the provision for approval
of compliance plans based on a 120 day time lapse.
EPA has similar concerns regarding the definition of employee as
described in the ECO legislation. The definition includes a provision
which would exempt a person whose mode of transportation for performing
such person's responsibilities is the same vehicle in which such person
commuted to the employer's work location. EPA believes that this
provision is intended for a limited classification of employees who
require the use of a vehicle for such responsibilities as sale of
products and also require the employee to commute to a worksite to
obtain such products or samples thereof, eliminating the possibility
for such an employee to not use their vehicle for commuting to the
worksite. EPA will audit the Connecticut ECO program and in the event
that EPA finds this provision to exclude employees which otherwise
could commute to the worksite by a means which would assist the
worksite to achieve the target APO, EPA will issue a SIP call pursuant
to Section 110(k)(5) of the Act, requiring Connecticut to submit a
revision to the ECO SIP eliminating this provision from the definition
of employee.
4. Enforcement Procedures
States and local jurisdictions need to include penalties and/or
compliance incentives in their ECO regulations 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 severe enough to
provide an adequate incentive for employers to comply and be no less
than the expected cost of compliance. Connecticut has met this
requirement, in the February 1, and July 27, 1993 SIP revisions, by
including enacted legislation revising the General Statutes of
Connecticut to provide penalties for an employer who fails to submit
compliance plans, revised compliance plans, compliance reports,
maintenance plans, and/or fails to implement such compliance and
maintenance plans.
Proposed Action
EPA is proposing to approve the SIP revision submitted by the State
of Connecticut. The State of Connecticut submitted a SIP revision
implementing each of the program elements required by Section
182(d)(1)(B) of the CAA.
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 notice 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 revisions (54 FR 2222) from the
requirements of Section 3 of Executive Order 12291 for a period of two
years. The U.S. 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 September 30, 1993.
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 CAA
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 CAA,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
CAA 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 (S.Ct. 1976);
42 U.S.C. 7410(a)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Ozone.
Authority: 42 U.S.C. 7401-7671q.
Dated: June 27, 1994.
John P. DeVillars,
Regional Administrator, Region I.
[FR Doc. 94-17302 Filed 7-14-94; 8:45 am]
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