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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 52

[IL97-1-6575; FRL-5158-6]

Clean Air Act Approval and Promulgation of Employee Commute

Options Program; Illinois

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Proposed rule.

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SUMMARY: The USEPA is proposing to approve the State Implementation

Plan (SIP) revision request submitted by the State of Illinois on July

8, 1994, for the purpose of establishing an Employee Commute Options

Program (ECO Program) in the Chicago area, including the counties of

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

Sable and Gooselake in Grundy County and Oswego in Kendall County. The

rationale for the 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

March 30, 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 ECO Program SIP revision request and USEPA's

analysis are available for inspection at the following address: U.S.

Environmental Protection Agency, Region 5, Air and Radiation Division,

77 West Jackson Boulevard, Chicago, Illinois 60604.

(It is recommended that you telephone Jessica Radolf at (312) 886-3198

before visiting the Region 5 Office.)

FOR FURTHER INFORMATION CONTACT: Jessica Radolf, Regulation Development

Section, Regulation Development Branch, (AR-18J) USEPA, Region 5, 77

West Jackson Boulevard, Chicago, Illinois 60604-3590, (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 the counties of Cook, Lake, Dupage, McHenry, Kane, and

Will and the townships of Aux Sable and Gooselake in Grundy County and

Oswego in Kendall County to participate in a trip reduction program.

The concerns that lead to the inclusion of this Employee Commute

Options (ECO) provision in the amended Act are that more people are

driving 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 through stricter tailpipe and fuel standards.

Section 182(d)(1)(B) of the amended Act requires that employers in

severe and extreme ozone and 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 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. 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 [[Page 10824]] 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 July 8, 1994, the State of Illinois submitted a SIP revision

request including Title 92 of the Illinois Administrative Code Part

600: Employee Commute Options to USEPA in order to satisfy the

requirements of section 182(d)(1)(B) of the amended Act in the counties

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

Sable and Gooselake in Grundy County and Oswego in Kendall County,

Illinois. The USEPA issued a finding of completeness on this submittal

on July 14, 1994.

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 establishing an AVO for the entire Chicago severe ozone

nonattainment area. The AVO was determined to be 1.092 based on the

most recent census data and was included as part of the Illinois SIP on

July 8, 1994. Illinois has affirmed that this AVO is representative of

the AVO at the time of submittal as required by section 182(d)(1)(B).

The Chicago area AVO was calculated using a methodology that did

not include transit ridership in the numerator of the AVO calculation,

resulting in a lower AVO than if transit riders had been included.

Transit ridership is, however, included in the APO calculation. USEPA

staff had informed Illinois on November 19, 1992, that USEPA could

approve a definition of AVO that did not include transit. Final ECO

guidance was issued on December 17, 1992, that would not allow for this

type of AVO calculation.

Illinois' position is that including transit ridership in the AVO

calculation would require a 25 percent increase above the average

vehicle occupancy over existing conditions, which already relies very

heavily on transit ridership, and this would penalize the Chicago area

for having invested heavily in an extensive public transit

infrastructure.

The State points out that the Illinois program has the support of

affected employers that feel that the Illinois AVO target is

attainable. It is the State's position that adoption of a transit

oriented definition, with a much higher target, would be perceived by

employers as unattainable and would erode their support.

In a June 10, 1994, letter from Administrator Carol M. Browner to

Senator Frank R. Lautenberg, USEPA affirmed that ``our continuing

effort here at EPA is to make the ECO Program work in ways that make

sense at the local level.'' USEPA believes that Illinois' calculation

of the AVO baseline without transit ridership reflects local concerns,

recognizes the already significant investment in local and Federal

dollars to develop and operate an existing major public transit

infrastructure, and is approvable because it is consistent with Clean

Air Act section 182 (d)(1)(B) language that allows for average vehicle

occupancy rates, ``* * * reflecting existing occupancy rates and the

availability of high occupancy modes.'' Illinois correctly points out

that if transit ridership is included in the AVO baseline then cities

like Chicago will have a much higher target AVO than some other cities

simply because there is an efficient rail system already in place.

In light of USEPA's prior indication to Illinois that it could

approve the AVO calculation, and the agency expressed desire to allow

flexibility in implementing the ECO program, USEPA proposes to approve

the AVO calculation.

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. Illinois has

met this requirement by setting the target APO at 1.36 which is 25

percent above the AVO of 1.092.

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. In addition, States should develop procedures for notifying

subject employers regarding the ECO Program requirements.

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's requirement that initial compliance plans

convincingly demonstrate compliance will be met. This demonstration can

have 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.

Illinois has met these requirements by providing evidence in the

SIP that Illinois Department of Transportation resources are available

to implement the first option. Illinois has contracted with several

consulting firms to administer and monitor the program, to develop a

training program for employers, and to prepare informational and

educational materials. [[Page 10825]]

Illinois will begin to notify the approximately 5,400 employers in

the Chicago area with 100 or more employees in three staggered groups.

Beginning in January 1995, registration packages were to be sent to the

largest 250 employers representing approximately one third of all

affected employees. Registration packages will be mailed to the second

and third groups of employers in April 1995, and July 1995,

respectively. Registration packages will include a complete guidance

document, all necessary forms, information regarding training and

information regarding how to withdraw from the program if the number of

employees at the worksite falls below 100. Registration, APO surveys,

and compliance or maintenance plans will be required from employers 30,

90, and 240 days, respectively, following receipt of the registration

packet.

Each affected employer will receive program guidance that explains

the requirements of the program and provides guidelines for developing

approvable compliance plans for two phases of the program. In Phase 1--

Start-Up (1994 to 1996) employers have the option of developing initial

compliance plans using one of 14 start-up packages or the option of

utilizing the value-added system. In Phase 2--Compliance (1996 to 1998)

employers that have implemented their initial compliance plan for two

years, must develop a renewal compliance plan using the value-added

approach.

Phase 1--Start-Up (1994 to 1996)

Option A, ECO Start-up packages, allows employers to choose one of

14 start-up packages, each of which contains a fixed set of support

measures that must be implemented. The required measures are minimum

requirements and employers may supplement these packages by

implementing additional strategies.

The start-up packages include: (1) Rideshare with Support; (2)

Ride-share with Guaranteed Ride Home; (3) Rideshare with On-Site

Amenities; (4) Rideshare with Vanpool Support; (5) Transit with

Guaranteed Ride Home; (6) Transit with On-Site Transit Pass/Token

Sales; (7) Transit with Transit Check Participation; (8) Transit with

Shuttle Service; (9) Bicycle/Walk Program; (10) Telecommuting; (11)

Compressed Work Week; (12) Parking Cash Out; (13) Transportation

Allowance; and, (14) Episodic Program. Each of these packages requires

that a trained employee transportation coordinator be hired by the

employer to develop and implement the package. USEPA believes that

initial employer compliance plans that include any of thes start-up

packages could convincingly demonstrate compliance during the first

four years of the program.

Option B, the Value-Added System, would allow employers to develop

an initial compliance plan that is customized to the worksite.

Employers would work through a series of steps for building up the

value of a compliance plan to a level that will ensure compliance by

selecting from a menu of trip reduction strategies that each has a

designated vehicle reduction value. These steps include: (1) Work hour

programs (telecommuting and compressed work week); (2) trip reduction

support functions for carpool, vanpool, transit, bicycle, and walk

programs; and (3) use of financial incentives and disincentives.

Vehicle reduction estimates were developed for each support function

and financial incentive and disincentive for three APO ranges and three

transportation environments. These values are applied using a series of

worksheets to estimate both the singular and additive effects of the

proposed trip reduction strategies.

Phase 2--Compliance (1996-1998)

After employers have implemented their initial compliance plan for

two years, they must develop and implement a renewal compliance plan

based on the value-added approach that is designed to attain the target

APO.

The Illinois Department of Transportation shall within 90 days of a

plan submittal evaluate the compliance plan. An employer whose

compliance plan is not approved will be required to submit a revised

plan within 60 days of notification.

USEPA proposes to accept the Illinois program as a viable ECO

Program that will reduce vehicle miles traveled (VMT) in the Chicago

severe ozone nonattainment area. The June 10, 1994, letter from

Administrator Carol Browner to Senator Frank R. Lautenberg stresses

USEPA's commitment to policies that demonstrate ongoing flexibility in

the ECO Program. USEPA will allow ``states to grant employers credit

for any measure that reduces employee commute vehicle trips in

gasoline-fueled vehicles.'' Further, the letter provides that States

may approve employer plans that include seasonal components if the

plans will achieve the trip reduction goal as determined by the State.

USEPA believes approval of the Illinois' episodic Start-up package

provides full flexibility in establishing a viable, longterm ECO

Program in Illinois. The Illinois Episodic Start-up package is a

temporary, seasonal option in a program that phases-in increasingly

stringent requirements in which employers must achieve the State's trip

reduction goals four years after the SIP submittal. Employer's may

implement the episodic start-up package only during the first two years

of the ECO Program. After which, all employers must switch to the

value-added approach and be in compliance by July 8, 1998. For these

reasons the episodic start-up package is being proposed for approval as

part of Phase 1 of the Illinois ECO Program. During the Phase 1 period

USEPA expects the episodic start-up package to serve as a demonstration

project and for the purpose of collecting information on its

effectiveness. The episodic strategy is not being proposed for approval

for the period after the first two years of the ECO Program and all

employers must meet the requirements associated with the value-added

approach.

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.

Illinois' ECO SIP has met this requirement by including in its ECO

legislation substantial penalties for failure to comply with any

provision of the regulation. A violator may be subject to a fine of up

to $10,000 and up to $1000 per day for each violation. Violations

include: (1) Knowingly failing to register or to submit a survey, or a

compliance plan for an affected worksite; (2) knowingly falsifying or

misrepresenting information provided in an employer survey or

compliance plan; (3) failing to make a good faith effort to implement a

compliance plan. Affected employers who make a good faith effort to

implement their approved compliance plans, but fail to achieve the

target APO will not be subject to penalties.

III. Proposed Rulemaking Action and Solicitation of Comments

The USEPA proposes to approve the ECO SIP revision submitted by the

State of Illinois. The State of Illinois 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 [[Page 10826]] 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

than 25 percent above the areawide AVO for all such trips. Employer

notification was scheduled to begin in January 1995. Registration

forms, APO surveys, and compliance or maintenance plans will be

required from employers 30, 90, and 240 days, respectively, following

receipt of the registration packet. Mailing of renewal notices will

begin in January 1997.

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,

proposing to approve this submittal. Public comments are solicited on

the requested SIP revision and on USEPA's proposed rulemaking action.

Comments received by March 30, 1995 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,

memoran dum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. The Office of Management and Budget (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, Ozone.

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

Dated: February 10, 1995.

David A. Ullrich,

Acting Regional Administrator.

[FR Doc. 95-4789 Filed 2-27-95; 8:45 am]

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