Clean Air Act Approval and Promulgation of Employee Commute Options Program; Indiana

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.

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(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.

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[FR Doc. 94-19909 Filed 8-17-94; 8:45 am]

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