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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 52

[IL98-1-6589; FRL-5117-5]

Approval and Promulgation of an Implementation Plan for Vehicle

Miles Traveled; Illinois

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 Chicago, Illinois ozone nonattainment area,

submitted by the State of Illinois 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) milestone

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

January 5, 1995.

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.

SUPPLEMENTAL 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 it's orders or

opinions, USEPA believes that the court's general conclusion that the

Agency's construction of the conditional approval provision was

unlawful precludes USEPA from taking action to approve any submitted

VMT Offset committal SIPs.

On November 26, 1993, the USEPA published a proposed rule (58 FR

62309) to conditionally approve Illinois's commitment for the VMT-

Offset requirement.

In light of the decision reached in Natural Resources Defense

Council v. Browner, USEPA has decided not to go forward with

conditional approvals of VMT committal SIPs, but 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 (57

FR 13498), 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 the Agency 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 July 14, 1994, Illinois submitted to USEPA a SIP submittal to

fulfill the first portion of the VMT-Offset SIP. A public hearing had

been held on the submittal on June 22, 1994. The SIP submittal was

found to be complete in a letter dated August 4, 1994.

Illinois submitted a 15 percent plan SIP on November 15, 1993. In

the 15 percent plan Illinois uses TCMs amounting to 2 tons per day for

credit toward the 15 percent reduction. The Illinois 15 percent plan

SIP revision request is not yet complete. The USEPA is proposing to

approve the second portion of the VMT Offset submittal after final TCM

commitments are submitted and USEPA makes a favorable finding of

completeness on the Illinois 15 percent plan.

Illinois will submit TCMs as necessary to meet post-1996 RFP and

attainment at the same time as the post-1996 RFP and attainment

demonstration SIPs.

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 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 Illinois has demonstrated in its submittal of July 14,

1994, that the predicted growth in VMT in the Chicago, Illinois

nonattainment area 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, Illinois has projected motor vehicle

emissions to the year 2007 and has not predicted an upturn in motor

vehicle emissions. The nonattainment area includes the counties of

Cook, DuPage, Kane, Lake, McHenry, Will and the townships of Aux Sable

and Goose Lake in Grundy County and Oswego in Kendall County. The

MOBILE5a model was used to calculate fleetwide on-highway motor vehicle

emission factors for future years. The average summer weekday VMT for

1990 has been estimated to be 140.35 million miles for the baseline

inventory.

For the years 1990 to 1996, Illinois used a VMT growth rate of 2.7

percent per year for the Chicago nonattainment area. There are

indications that VMT growth may be slowing. Since the future VMT growth

can be difficult to predict, Illinois used three different possible VMT

growth rates to project mobile source emissions and demonstrate

compliance. Illinois estimated mobile source emissions at a VMT growth

rate of 1 percent, 2 percent and 2.7 percent per year for 1996 to 2007.

The July 14, 1994, submittal lists the predicted average summer weekday

VMT for the years 1990, 1996, 1999, 2004 and 2007 at each of the three

VMT growth rates.

The MOBILE5a model was used to estimate motor vehicle emission

rates for the specified years as mandatory control measures become

effective. The control measures whose effects were modeled were: The

Federal motor vehicle control program; volatility controls for gasoline

and reformulated gasoline; and the inspection and maintenance program

(both the current program to 1996 and the enhanced program from 1996 to

2007). There were no benefits taken for the employee commute options

program.

Even at the 2.7 percent per year VMT growth rate, no upturn in

mobile source emissions is predicted. The July 14, 1994, submittal

demonstrates that emissions will continue to decline through the year

2010. This demonstration meets the first requirement of the 3 part

submittal.

On November 15, 1993, Illinois submitted the 15 percent reasonable

further progress plan. This submittal relies on a 2 ton per day credit

from transportation control measures (TCMs) to meet the 15 percent

reduction. A listing of TCMs was submitted with the SIP submittal. On

December 9, 1993, the Chicago Area Transportation Study's policy

committee officially adopted this package of TCMs as a component of the

Illinois 15 percent plan. Many of the TCMs have already been

implemented and all of the TCMs have been included in the Chicago

area's transportation improvement program. The USEPA requires further

documentation on these TCMs before the second element can be fully

approved. The further requirements for Illinois' TCM package are

discussed in a May 20, 1994, letter from the USEPA Regional

Administrator to the Director of the Illinois Environmental Protection

Agency. At this time, Illinois has met the VMT Offset requirement by

using TCMs as necessary in the 15 percent plan. The USEPA is proposing

to approve the second element when a favorable finding of completeness

on the 15 percent plan is made.

The attainment demonstration and the post-1996 RFP SIPs are due on

November 15, 1994. Illinois will address any necessary TCMs to reach

attainment and meet the post-1996 RFP in those SIP submittals.

Summary of Findings

In the requested SIP revision submittal, Illinois 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 June 22, 1994.

Using a VMT forecast of 2.7 percent per year, these projections show

that motor vehicle emissions are not expected to rise above the ceiling

level through the year 2010.

In addition, Illinois has identified and evaluated a number of

specific TCMs to reduce single occupancy vehicle usage. Several of

these identified TCMs are currently being implemented.

Illinois has met the first requirement of the VMT offset plan.

Illinois has demonstrated in the July 14, 1994, 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. In addition, Illinois has used TCMs as necessary to

meet the 15% RFP requirements by 1996. The third requirement is for

Illinois to use TCMs as necessary to meet the post - 1996 RFP and

attainment of the standard. This third requirement will be submitted

with the post - 1996 RFP and attainment demonstration SIPs and will be

addressed in a future rule.

III. Proposed Rulemaking Action

Based on the submittal accompanying the State's SIP revision

request, USEPA is proposing to approve the SIP revision submitted by

the State of Illinois as satisfying the first and second elements of

the three VMT offset plan requirements.

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 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: November 22, 1994.

Michelle D. Jordan,

Deputy Regional Administrator.

[FR Doc. 94-29986 Filed 12-5-94; 8:45 am]

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