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)

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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