[Federal Register Volume 59, Number 159 (Thursday, August 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19909]
[[Page Unknown]]
[Federal Register: August 18, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 52
[IN39-1-6337A; FRL-5012-1]
Clean Air Act Approval and Promulgation of Employee Commute
Options Program; Indiana
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: The United States Environmental Protection Agency (USEPA)
approves the State Implementation Plan (SIP) revision request submitted
by the State of Indiana on February 25, 1994, for the purpose of
establishing an Employee Commute Options Program (ECO Program) in Lake
and Porter Counties. The SIP request was submitted by Indiana to
satisfy the statutory mandate that an ECO Program be established for
employers in severe and extreme ozone nonattainment areas with 100 or
more employees. Compliance plans developed by these employers must be
designed to convincingly demonstrate an increase in the average
passenger occupancy (APO) of vehicles used by their 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. The
rationale for the approval is set forth in this final rule; additional
information is available at the address indicated in the Addresses
section. In the proposed rules section of this Federal Register, USEPA
is proposing approval of and soliciting public comment on this
requested SIP revision. If adverse comments are received on this direct
final rule, USEPA will withdraw this final rule and address the
comments received in response to this final rule in a final rule on the
related proposed rule which is being published in the proposed rules
section of this Federal Register.
DATES: This action will be effective October 17, 1994, unless notice is
received by September 19, 1994, that someone wishes to submit adverse
comments. If the effective date is delayed, timely notice will be
published in the Federal Register.
ADDRESSES: Copies of the ECO Program SIP revision request and USEPA's
analysis are available for inspection at the following address: (It is
recommended that you telephone Jessica Radolf at (312) 886-3198 before
visiting the Region 5 Office.)
U.S. Environmental Protection Agency, Region 5, Air and Radiation
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Written comments can be mailed to: J. Elmer Bortzer, Chief,
Regulation Development Section (AR-18J), Regulation Development Branch,
Air and Radiation Division, U.S. Environmental Protection Agency, 77
West Jackson Boulevard, Chicago, Illinois 60604.
A copy of the ECO Program SIP revision is available for inspection
at: Office of Air and Radiation (OAR), Docket and Information Center
(Air Docket 6102), room 1500, U.S. Environmental Protection Agency, 401
M Street, SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Jessica Radolf (312) 886-3198.
SUPPLEMENTARY INFORMATION:
I. Background
Implementation of the section 182(d)(1)(B) of the Clean Air Act, as
amended in 1990 (amended Act), requires employers with 100 or more
employees in Lake and Porter Counties to participate in a trip
reduction program. The concerns that lead to the inclusion of this ECO
provision in the amended Act are that more people are driving than ever
before 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 fact that each new vehicle pollutes less,
resulting in an overall increase in emissions from mobile sources. The
ECO provision outlines the requirements for a program designed to
minimize the use of single occupancy vehicles in commuting trips in
order to gain emissions reductions beyond what can be and will be
obtained via stricter tailpipe and fuel standards.
Section 182(d)(1)(B) of the amended Act requires that employers in
severe and extreme ozone and serious carbon monoxide (CO) nonattainment
areas submit their compliance plans to the State two years after the
SIP is submitted to USEPA. These compliance plans developed by
employers are designed to convincingly demonstrate an increase in the
APO of vehicles used by their employees who commute to work during the
peak period by no less than 25 percent above the 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. 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.
Section 110(k) of the amended Act contains provisions governing
USEPA's action on SIP submittals. The USEPA can take one of three
actions on ECO Program SIP submittals. If the submittal satisfactorily
addresses all of the required ECO Program elements, the USEPA shall
grant full approval. If the submittal contains approvable commitments
to implement all required ECO Program elements, but the State does not
yet have all of the necessary regulatory authority to do so, the USEPA
may grant conditional approval. Finally, if the submittal fails to
adequately address one or more of the mandatory ECO Program elements,
the USEPA shall issue a disapproval.
On February 25, 1994, the State of Indiana submitted a SIP revision
request including Rule 326 IAC 19-1 to USEPA in order to satisfy the
requirements of section 182(d)(1)(B) of the amended Act in Lake and
Porter Counties. The Indiana ECO regulations include a number of
definitions that USEPA has determined to be consistent with section
182(d)(1)(B).
In order to gain approval, the State submittal must contain each of
the following ECO 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 percent 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. The USEPA 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) of the
amended Act 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 Lake and Porter Counties at
the time of SIP submittal was 1.17.
2. The Target APO
Section 182(d)(1)(B) indicates that the target APO must be not less
than 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 1.46, which is 25
percent above the AVO of 1.17.
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 and serious carbon monoxide areas. In
the ECO Program Guidance issued December 1992, USEPA states that
automatic coverage of employers of 100 or more should be included in
the law.1 In addition, States should develop procedures for
notifying subject employers regarding the ECO Program requirements.
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\1\The December 17, 1992, ECO guidance developed by USEPA allows
that a de minimis exemption may be made at the State's option where
by employers with worksites at which fewer than 33 employees report
to work during the peak travel period are not subject to the ECO
requirements.
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State 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 include in the SIP 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 that plans that are not convincing will be
rejected.
A second option is for the regulations in the SIP to contain a
convincing minimum set of measures that all employers must implement.
These measures will be subject to review and approval by USEPA as
adequate when the SIP is processed.
A third option is for the regulations in the SIP to provide that
failure by the employer to meet the target APO will result in
implementation of a regulation-specified, multi-measure contingency
plan. This plan will be reviewed by USEPA for adequacy when the SIP is
processed.
A fourth option is for the regulations in the SIP to include
financial penalties for employers who fail to meet the target APO and/
or compliance incentives that are large enough to result in a
significant prospective incentive for the employer to design and
implement an effective initial compliance plan of its own.
Indiana has met these requirements by providing evidence in the SIP
that Indiana Department of Environmental Management resources are
available to implement the first option. Indiana will contract with the
Northwestern Indiana Regional Planning Commission (NIRPC) to implement
the ECO program in Lake and Porter Counties. One year after the
effective date of the ECO regulations, November 29, 1994, NIRPC will
begin requesting compliance plans from the approximately 170 employers
in Lake and Porter Counties with 100 or more employees at a worksite.
Upon receiving written notice by certified mail, employers meeting the
applicability requirements of the regulations will submit to NIRPC a
compliance plan within one hundred twenty (120) days of receipt of
notification. The ECO plan will be implemented within one year of the
plan's approval by NIRPC.
4. Enforcement Procedures
States and local jurisdictions need to 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 no less than the
expected cost of compliance. Indiana's ECO SIP has met this requirement
by including in its ECO regulations substantial penalties for failure
to comply with any provision of the regulation. A violator may be
subject to a fine of up to $25,000 per day per violation as provided
under the authority of Indiana Code (IC) 13-7-13-1(a). Violations
include: 1) failure to submit an approvable plan or approvable plan
update; 2) failure to implement an approvable plan or approvable plan
update; 3) failure to provide any measure in an approved plan or
approved plan update; 4) falsification of information on employment;
and, 5) failure to respond to an order to comply. If an employer
complies with all provisions of the approved ECO plan or plan update,
but fails to meet the target APO, such failure is not a violation of
this rule.
5. Clarifications of Indiana ECO Regulations
Because USEPA found some parts of Indiana's submittal unclear, a
letter of clarification was requested from the State. This letter was
submitted to USEPA on June 29, 1994, from Timothy J. Method, Assistant
Commissioner, Office of Air Management, Indiana Department of
Environmental Management (IDEM). The contents of this letter are
summarized below. The letter is available for public inspection in the
docket for this action at the Region 5 address listed above:
(1) Definition (b)(1) of the ``applicable employee population''
excludes for the purpose of calculating the APO employees who are off
work because of jury duty, work action, vacation or sick leave;
definition (m), the ``verifiable estimate of average passenger
occupancy'', includes these same employees in the employee trip record
surveys used to calculate the APO. There is effectively no
inconsistency between definitions (b) and (m). Definition (m) requires
that employees who are off work because of jury duty, work action,
vacation or sick leave must be included in the documentation of the
employee trip surveys that are used to calculate the APO. However,
because these employees are not reporting to the worksite between 6:00
a.m. and 10:00 a.m., they are recorded as zero persons arriving in zero
vehicles and are, therefore, effectively excluded in the calculation of
the APO.
(2) Definition (d) of the ``average vehicle occupancy'' requires
that the survey used to determine the AVO, must be conducted during a
period that excludes any holidays and occurs during a time without
holidays bordering the weekend on either side of the selected week.
Definition (c) of the ``average passenger occupancy'' states only that
national holidays may be excluded from the survey period. The survey
periods for the APO and the AVO should have the same restrictions. The
State program guidance instructs employers to conduct their APO survey
during a week that excludes holidays and that does not have a holiday
bordering the weekend on either side of the selected week.
(3) The definition for ``employee'' refers to any full-time or
part-time person working ten or more days per thirty day period who
report to work or is assigned primarily to a worksite on a regular
schedule over a thirty day period. A regular schedule refers to the
total number of days per 30 day period worked regularly. Regardless of
how the hours are scheduled, employees who work regularly ten or more
days per thirty day period are included in the employee definition.
(4) Definition (o) of a ``worksite'' means (1) and (2) or (1) or
(2). If worksite means (1) or (2) then is it required that buildings
owned or operated by the same employer or by employers under common
control must be in the same nonattainment area. Indiana has confirmed
that the definition of a worksite means (1) and (2). Therefore, to be
considered a worksite a building or group of buildings must be in the
same nonattainment area.
(5) Sections (3)(d) and (5) (a) and (d) do not state a limit on the
amount of time that could be granted to an employer for an extension or
postponement of a plan submittal. IDEM intends to allow another 30 to
60 days maximum for extensions or postponements of plan submittals.
(6) Both Section (3)(e) and Section (5)(d), regarding the submittal
of initial compliance plans and plan updates, respectively, state that
failure by IDEM to respond to a plan, in writing, within 60 days, would
result in automatic approval of the plan. It is IDEM's intention to
review all plans and to send out letters to all employers within the 60
day period. The affected worksites in Northwest Indiana will be
notified in 4 staggered periods that are 60 days apart. Because
employers must submit their plan 120 days after notification, there
will be minimal overlap of submissions by the four groups and responses
by IDEM will be spread over a ten month period. It is expected that it
will take no longer than one day to review a plan and two staff
persons, one at 75% time and one at 50% time, will be reviewing the
plans.
It should be noted that the Indiana 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.
USEPA believes that this provision is intended to expedite the approval
process for only those plans which 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. The USEPA intends to audit Indiana'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 USEPA finds that such requirements are not
being complied with, USEPA will issue a SIP Call pursuant to Section
110(k)(5) of the amended Act, requiring Indiana to submit a revision to
the ECO SIP eliminating the provision for approval of compliance plans
based on a 120 day time lapse.
III. Final Rulemaking Action
The USEPA approves the SIP revision submitted by the State of
Indiana. The State of Indiana has submitted a SIP revision that
includes each of the ECO Program elements required by Section
182(d)(1)(B) of the amended 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 that 25 percent above the
areawide AVO for all such trips. Employee notification will begin on
November 27, 1994 and initial compliance plans are due 120 days after
notification is received. The plan must be implemented within one year
of approval by the State. Substantial penalties that will provide an
adequate incentive for employers to comply and are no less than the
expected cost of compliance are included in the regulation. USEPA is,
therefore, approving this submittal.
Procedural Background
Because USEPA considers this action noncontroversial and routine,
we are approving it without prior proposal. The action will become
effective on October 17, 1994. However, if the USEPA receives adverse
comments by September 19, 1994. Then the USEPA will publish a document
that withdraws the action, and will address the comments received in
response to this final rule in the final rule on the requested SIP
revision which has been proposed for approval in the proposed rules
section of this Federal Register. The comment period will not be
extended or reopened.
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 SIP revisions (54 FR 2222) from the
requirements of Section 3 of Executive Order 12291 for 2 years. The
USEPA 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 USEPA's request. This request
continues in effect under Executive Order 12866 which superseded
Executive Order 12291 on 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., 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.
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 USEPA 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,
Incorporation by reference, Ozone.
Dated: June 30, 1994.
David A. Ullrich,
Acting Regional Administrator.
For the reasons stated in the preamble, 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 P--Indiana
2. Section 52.770 is amended by adding paragraph (c)(92) to read as
follows:
Sec. 52.770 Identification of plan.
* * * * *
(c) * * *
(92) On February 25, 1994, Indiana submitted an employee commute
option rule intended to satisfy the requirements of section
182(d)(1)(B) of the Clean Air Act Amendments of 1990.
(i) Incorporation by reference.
(A) Title 326 of the Indiana Administrative Code, Article 19 MOBILE
SOURCE RULES, Rule 1, Employee Commute Options. Filed with the
Secretary of State, October 28, 1993. Effective November 29, 1993.
* * * * *
[FR Doc. 94-19909 Filed 8-17-94; 8:45 am]
BILLING CODE 6560-50-P
