Approval and Promulgation of an Implementation Plan for Vehicle Miles Traveled; Indiana

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IN22-3-6576; FRL-5096-9]

Approval and Promulgation of an Implementation Plan for Vehicle

Miles Traveled; Indiana

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The United States Environmental Protection Agency (USEPA)

proposes to approve a request for a State Implementation Plan (SIP)

revision, addressing the Lake and Porter County ozone nonattainment

area, submitted by the State of Indiana for the purpose of offsetting

any growth in emissions from growth in vehicle miles traveled (VMT) or

number of vehicle trips, and to attain reduction in motor vehicle

emissions, in combination with other emission reduction requirements,

as necessary to comply with Reasonable Further Progress (RFP)

milestones and attainment requirements of the Clean Air Act (Act). The

rationale for this proposed approval is set forth below; additional

information is available at the address indicated below.

DATES: Comments on this proposed rule must be received on or before

December 2, 1994.

ADDRESSES: Written comments should be sent to: J. Elmer Bortzer, Chief,

Regulation Development Section, Regulation Development Branch (AR-18J),

USEPA, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-

3590.

Copies of the documents relevant to this action are available for

inspection during normal business hours at the following location:

Regulation Development Section, Regulation Development Branch (AR-18J),

U.S. Environmental Protection Agency, Region 5, 77 West Jackson

Boulevard, Chicago, Illinois, 60604.

Please contact Patricia Morris at (312) 353-8656 before visiting

the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Patricia Morris, Regulation

Development Section, Regulation Development Branch (AR-18J), U.S.

Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,

Chicago, Illinois 60604, (312) 353-8656.

SUPPLEMENTARY INFORMATION:

I. Background

Section 182(d)(1)(A) of the Act, as amended in 1990 (Act), requires

States containing ozone nonattainment areas classified as ``severe''

pursuant to section 181(a) of the Act to adopt transportation control

measures (TCMs) and transportation control strategies to offset any

growth in emissions from growth in VMT or number of vehicle trips, and

to attain reductions in motor vehicle emissions (in combination with

other emission reduction requirements) as necessary to comply with the

Act's RFP milestones and attainment requirements. The requirements for

establishing a VMT Offset program are discussed in the April 16, 1992,

General Preamble to title I of the Act (57 FR 13498), in addition to

section 182(d)(1)(A) of the Act.

For certain programs required under the Act (including VMT-Offset),

USEPA had earlier adopted a policy pursuant to section 110(k)(4) of the

Act to conditionally approve SIPs that committed to provide the USEPA

with specific enforceable measures by a date certain. That

interpretation was challenged in Natural Resources Defense Council v.

Browner, consolidated lawsuits brought in the United States Court of

Appeals for the District of Columbia Circuit. In a full opinion, dated

May 6, 1994 (and in a March 8, 1994 Order and April 22, 1994 Amended

Order issued earlier), the Court found that USEPA's conditional

approval interpretation exceeded USEPA's statutory authority. While the

Court did not specifically address the VMT Offset program in its orders

or opinions, USEPA believes that the Court's general conclusions that

the USEPA's construction of the conditional approval provision was

unlawful precludes USEPA from taking action to approve any submitted

VMT Offset committal SIPs.

On September 10, 1993, the USEPA published a proposed rule (58 FR

47701) to conditionally approve Indiana's commitment for the VMT-Offset

requirement. In light of the Court opinion, Indiana has withdrawn the

committal SIP in a letter dated July 5, 1994.

In light of the outcome of the litigation, USEPA has decided that

it would be appropriate to interpret the VMT Offset provision of the

Act to account for how States can practicably comply with each of the

provision's elements. The VMT Offset provision requires that States

submit by November 15, 1992, specific enforceable TCMs and strategies

to offset any growth in emissions from growth in VMT or number of

vehicle trips sufficient to allow total area emissions to comply with

the RFP and attainment requirements of the Act.

The USEPA has observed that these three elements (i.e., offsetting

growth in mobile source emissions, attainment of the RFP reduction, and

attainment of the ozone National Ambient Air Quality Standards (NAAQS)

create a timing problem of which Congress was perhaps not fully aware.

As discussed in USEPA's April 16, 1992, General Preamble to title I,

ozone nonattainment areas affected by this provision were not otherwise

required to submit SIPs that show attainment of the 1996 15% RFP

milestone until November 15, 1993, and likewise are not required to

demonstrate post-1996 RFP and attainment of the NAAQS until November

15, 1994. The SIP demonstrations due on November 15, 1993, and on

November 15, 1994, are broader in scope than growth in VMT or trips in

that they necessarily address emission trends and control measures for

non motor vehicle emission sources and, in the case of attainment

demonstrations, complex photochemical modeling studies.

The USEPA does not believe that Congress intended the VMT Offset

provision to advance the dates for these broader submissions. Further,

USEPA believes that the November 15, 1992, date would not allow

sufficient time for States to have fully developed specific sets of

measures that would comply with all of the elements of the VMT Offset

requirements of section 182(d)(1)(A) over the long term. Consequently,

USEPA believes it would be appropriate to interpret the Act to provide

the following alternative set of staged deadlines for submittal of

elements of the VMT Offset SIP.

Under this interpretation, the three required elements of section

182(d)(1)(A) are separable, and can be divided into three separate

submissions that could be submitted on different dates. Section 179(a)

of the Act, in establishing how USEPA would be required to apply

mandatory sanctions if a State fails to submit a full SIP also provides

that the sanctions clock starts if a State fails to submit one or more

SIP elements, as determined by the Administrator. The USEPA believes

that this language provides USEPA the authority to determine that the

different elements of a SIP submission are separable. Moreover, given

the continued timing problems addressed above, USEPA believes it is

appropriate to allow States to separate the VMT Offset SIP into three

elements, each to be submitted at different times: (1) The initial

requirement to submit TCMs that offset growth in emissions; (2) the

requirement to comply with the 15% periodic reduction requirement of

the Act; and (3) the requirement to comply with the post-1996 periodic

reduction and attainment requirements of the Act.

Under this approach, the first element, the emissions offset

element, was due on November 15, 1992. The USEPA believes this element

is not necessarily dependent on the development of the other elements.

The State could submit the emissions growth offset element independent

of an analysis of that element's consistency with the periodic

reduction and attainment requirements of the Act. Emissions trends from

other sources need not be considered to show compliance with this

offset requirement. As submitting this element in isolation does not

implicate the timing problem of advancing deadlines for RFP and

attainment demonstrations, USEPA does not believe it is necessary to

extend the statutory deadline for submittal of the emissions growth

offset element.

The second element, which requires the VMT Offset SIP to comply

with the 15% RFP requirement of the Act, was due on November 15, 1993,

which is the same date on which the 15% RFP SIP itself was due under

section 182(b)(1) of the Act. The USEPA believes it is reasonable to

extend the deadline for this element to the date on which the entire

15% SIP was due, as this allows States to develop the comprehensive

strategy to address the 15% reduction requirement and assure that the

TCM elements required under section 182(d)(1)(A) are consistent with

the remainder of the 15% demonstration. Indeed, USEPA believes that

only upon submittal of the broader 15% plan can a State have had the

necessary opportunity to coordinate it's VMT strategy with it's 15%

plan.

The third element, which requires the VMT Offset SIP to comply with

the post-1996 RFP and attainment requirements of the Act, will be due

on November 15, 1994, the statutory deadline for those broader

submissions. The USEPA believes it is reasonable to extend the deadline

for this element to the date on which the post-1996 RFP and attainment

SIPs are due for the same reasons it is reasonable to extend the

deadline for the second element. First, it is arguably impossible for a

State to make the showing required by section 182(d)(1)(A) for the

third element until the broader demonstrations have been developed by

the State. Moreover, allowing States to develop the comprehensive

strategy to address post-1996 RFP and attainment by providing a fuller

opportunity to assure that the TCM elements comply with the broader RFP

and attainment demonstrations, will result in a better program for

reducing emissions in the long term.

On November 17, 1993, Indiana submitted to USEPA documentation to

fulfill the first and second elements of the VMT-Offset SIP. A public

hearing was held on December 14, 1993, and documentation on the public

hearing was submitted to complete the SIP revision request. Indiana

does not at this time anticipate the need for additional TCMs to meet

the attainment demonstration requirement but will submit any necessary

TCMs with the attainment demonstration SIP.

Evaluation of the State Submittal

Section 182(d)(1)(A) of the Act requires the State to offset any

growth in emissions from growth in VMT. As discussed in the General

Preamble, the purpose is to prevent a growth in motor vehicle emissions

from canceling out the emission reduction benefits of the federally

mandated programs in the Act. The USEPA interprets this provision to

require that sufficient measures be adopted so that projected motor

vehicle volatile organic compound (VOC) emissions will never be higher

during the ozone season in one year than during the ozone season in the

year before. When growth in VMT and vehicle trips would otherwise cause

a motor vehicle emissions upturn, this upturn must be prevented. The

emissions level at the point of upturn becomes a ceiling on motor

vehicle emissions. This requirement applies to projected emissions in

the years between the submission of the SIP revision and the attainment

deadline and is above and beyond the separate requirements for the RFP

and the attainment demonstrations. The ceiling level is defined

therefore, up to the point of upturn, as motor vehicle emissions that

would occur in the ozone season of that year, with VMT growth, if all

measures for that area in that year were implemented as required by the

Act. When this curve begins to turn up due to growth in VMT or vehicle

trips, the ceiling becomes a fixed value. The ceiling line would

include the effects of Federal measures such as new motor vehicle

standards, phase II RVP controls, and reformulated gasoline, as well as

the Act mandated SIP requirements.

The State of Indiana has demonstrated in its submittal of November

17, 1993, that the predicted growth in VMT in Lake and Porter Counties,

Indiana, is not expected to result in a growth in motor vehicle

emissions that will negate the effects of the reductions mandated by

the Act. Further, Indiana has projected motor vehicle emissions to the

year 2007 and, using the most current socioeconomic data, has not

predicted an upturn in motor vehicle emissions. In the event that the

projected socioeconomic data and associated VMT grow more rapidly than

currently predicted, Indiana is required by section 182(c)(5) to track

actual VMT starting with 1996 and every three years there after to

demonstrate that the actual VMT is equal to or less than the projected

VMT. TCMs will be required to offset VMT that is above the projected

levels (section 182(c)(5)).

The VMT offset submittal from Indiana dated November 17, 1993,

contains the final report ``TCMs to Offset Emissions from VMT Growth in

Northwestern Indiana.'' The report used the most current socioeconomic

data and the travel network model in conjunction with the MOBILE5a to

estimate mobile source emissions to the attainment year of 2007.

This report also documents the progress Indiana has made in

evaluating TCMs to reduce growth in VMT and thus reduce emissions.

Indiana may choose to take credit for TCM emission reductions as part

of the post 1996 RFP requirement or to meet the attainment requirement.

Not only has Indiana evaluated the effectiveness and predicted impact

of a number of TCMs but actual implementation of selected TCMs has been

ongoing. For example, a new inter city bus route to link the cities of

Hammond, East Chicago and Gary, Indiana has been started. These three

cities have operated established intra city bus routes for many years

and this is the first route to link the already existing transit

services for these cities.

These specific TCMs however, are not a part of the current SIP

revision request and are not a required portion of this SIP revision.

Thus, Indiana is not currently taking credit for the emission

reductions from these TCM measures and the State is not bound to

implement or continue to implement any specific TCMs. These measures,

however, illustrate Indiana's work in evaluating and implementing TCMs

to meet the requirements of the Act. Also, the TCMs may be used in

subsequent SIP submittals as necessary to meet the post 1996 RFP

requirement or the attainment requirement.

Additionally, Indiana is implementing TCMs to complement the

employee commute options (ECO) program which requires a 25 percent

reduction in single occupancy vehicle usage for home to work trips for

employers of 100 or more persons. Activities include: Planning and

promotion, new bus routes, improved transit service, and carpooling

match-up services. A number of TCMs have been implemented in Lake and

Porter Counties through use of the Department of Transportation's

congestion mitigation and air quality funds under the Intermodal

Surface Transportation Efficiency Act. These projects have included:

purchasing clean fueled buses, operation of new bus service, improved

transit service and ECO activities. In conclusion, Indiana is

evaluating and implementing TCMs as expeditiously as possible even when

the emissions projections indicate that mobile source emissions will

continue to decline without additional TCMs.

Indiana submitted a 15 percent RFP SIP for northwest Indiana to the

USEPA in November 1993, but the submittal was found incomplete in a

letter dated January 25, 1994. The RFP SIP lacked enforceable

regulations and a public hearing. The public hearing was held on March

29, 1994. Although the RFP SIP is still incomplete due to the lack of

enforceable regulations. Indiana's submittal does indicate that TCM's

would not be necessary to attain the 15% reduction required by 1996.

The RFP SIP asserts that a 15% reduction in emissions could be achieved

by 1996 through the feasible measures detailed in the SIP submittal.

Under the approach contained in the submittal, the State would achieve

the 15% reduction in VOCs through measures other than relying on TCMs.

The majority of the reduction would be obtained from stationary source

shut downs. Other measures include enhanced vehicle inspection and

maintenance and reformulated gasoline. For the attainment demonstration

which is due November 14, 1994, Indiana has indicated that it will

include TCMs as necessary to reach attainment.

Summary of Findings

In the requested SIP revision submittal, Indiana has projected

motor vehicle emissions until the statutory attainment year of 2007

using the most recent population and economic growth projections. These

projections went through public hearing and comment on December 14,

1993. Using current VMT forecasts, these projections show that motor

vehicle emissions are not expected to rise above the ceiling level

through the year 2007.

In addition, Indiana has identified and evaluated a number of

specific TCMs to reduce single occupancy vehicle usage. Several of

these identified TCMs are currently being implemented. The VMT offset

submittal from Indiana dated November 17, 1993, contains the final

report ``TCMs to Offset Emissions from VMT Growth in Northwestern

Indiana.'' This report documents the progress Indiana has made in

evaluating TCMs to reduce growth in VMT and thus reduce emissions.

Indiana has evaluated the effectiveness and predicted impact of a

number of TCMs through actual implementation of selected TCMs, although

these TCMs are not a part of the SIP revision and Indiana is not taking

emission reduction credit for these TCMs.

Indiana has met the first and second requirements of the VMT offset

plan. Indiana has identified and evaluated TCMs to reduce VMT.

Regarding the first requirement, Indiana has demonstrated in the

November 17, 1993, submittal that projected growth in VMT is not

expected to result in an increase in emissions from motor vehicles and

is not expected to negate the progress in emissions reductions required

to meet attainment of the standard by 2007. Regarding the second

element, Indiana listed in its incomplete 15% RFP submittal feasible

measures intended to meet the 15% reduction by 1996 without relying on

TCMs and has shown that further TCMs are not necessary to meet the

second element of section 182(d)(1)(A). The third requirement is for

Indiana to use TCMs as necessary to meet the attainment of the

standard. This third requirement will be submitted with the attainment

demonstration SIP and will be addressed in future proposed and final

rules.

III. Proposed Rulemaking Action and Solicitation of Comments

Based on the submittal accompanying the State's SIP revision

request, USEPA proposes to approve the SIP revision submitted by the

State of Indiana as satisfying the first two of the three VMT offset

plan requirements. Public comments are solicited on the requested SIP

revision and on USEPA's proposed rulemaking action. Comments received

by December 2, 1994, will be considered in the development of USEPA's

final rule.

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. The Office of Management and Budget 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 SIP. Each request for revision to any SIP 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 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.

See 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, Ozone.

Authority: 42 U.S.C. 7401-7671q.

Dated: September 30, 1994.

Valdas V. Adamkus,

Regional Administrator.

[FR Doc. 94-27174 Filed 11-1-94; 8:45 am]

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