Clean Air Act Approval and Promulgation of Title I, Section 182(d)(1)(B), Employee Commute Options/Employer Trip Reduction Program for Texas

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-21-1-6634; FRL-5134-6]

Clean Air Act Approval and Promulgation of Title I, Section

182(d)(1)(B), Employee Commute Options/Employer Trip Reduction Program

for Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, the EPA is approving the State Implementation

Plan (SIP) revision submitted by the State of Texas for the purpose of

establishing an Employee Commute Options (ECO) program (also known as

the Employer Trip Reduction (ETR) program). Pursuant to Section

182(d)(1)(B) of the Clean Air Act (CAA), as amended in 1990, the SIP

was submitted by Texas to satisfy the statutory mandate that an ETR

Program be established for employers with 100 or more employees, such

that compliance plans developed by such employers are designed to

convincingly demonstrate an increase in the average passenger occupancy

(APO) of 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.

EFFECTIVE DATE: This action will be effective on April 6, 1995.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the

following locations. The interested persons wanting to examine these

documents should make an appointment with the appropriate office at

least 24 hours before the visiting day.

U.S. Environmental Protection Agency, Region 6, Air Programs Branch

(6T-A), 1445 Ross Avenue, Dallas, Texas 75202-2733.

The Air and Radiation Docket and Information Center, U.S. Environmental

Protection Agency, 401 M Street, SW., Washington, DC 20460.

Texas Natural Resource Conservation Commission, 12124 Park 35 Circle,

Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Hal D. Brown, Planning Section

(6T-AP), Air Programs Branch, USEPA Region 6, 1445 Ross Avenue, Dallas,

Texas 75202-2733, telephone (214) 665-7248.

SUPPLEMENTARY INFORMATION:

I. Background

Implementation of the provisions of the CAA will require employers

with 100 or more employees in the Houston-Galveston ozone nonattainment

area to participate in a trip reduction program. Section 182(d)(1)(B)

requires that employers submit ETR compliance plans to the State two

years after the SIP is submitted to the EPA. These compliance plans

must ``convincingly demonstrate'' that within four years after the SIP

is submitted, the employer will achieve an increase in the APO of its

employees who commute to work during the peak period by not less than

25 percent above the AVO of the nonattainment area. 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.

For an approvable ETR SIP, 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 percent above the AVO(s); (3) an ETR program

that includes a process for compliance demonstration; and, (4)

enforcement procedures to ensure submission and implementation of

compliance plans by subject employers. The EPA issued guidance on

December 17, 1992, interpreting various aspects of the statutory

requirements [Employee Commute Options Guidance, December 1992].

On November 13, 1992, the EPA received from the Governor of Texas a

SIP revision to incorporate the ETR regulation which was adopted by the

State on October 16, 1992. On October 18, 1993, the EPA proposed

approval of the Texas ETR SIP in the Federal Register (FR) because it

meets the requirements of section 182(d)(1)(B) of the CAA and the

criteria listed above (see 58 FR 53693). The proposed rulemaking action

provides a detailed discussion of the EPA's rationale for proposing

approval of the State's ETR SIP, and should be referred to. The EPA

requested public comments on all aspects of the proposal. A summary of

the comments received and the EPA's response to them are provided

below. A more detailed response to comments is available from the EPA

Region 6 office.

II. Response to Comments

The EPA received three comment letters, one from the State of Texas

which supported the EPA's action, one from a local citizen which raised

concerns with the Texas program, and one from a local environmental

group which objected to EPA's proposed approval.

Comment 1--The Texas Natural Resource Conservation Commission

(TNRCC) supported the EPA's proposed approval of the Texas ETR SIP. In

addition, the State pointed out a correction to our notice. On page

53695, part D under ``Enforcement Procedures,'' the EPA states that

violators may be subject to up to $10,000 in administrative penalties

and up to $25,000 in civil penalties. The State commented that this

provision should instead read, ``may subject the violator up to $10,000

in administrative penalties or up to $25,000 in civil penalties per

violation.''

EPA Response--The EPA agrees with the State's comment. Violators

may be subject to either administrative or civil penalties for a given

violation. The penalty provisions of the Texas program are approvable.

Comment 2--A local citizen and the environmental group commented

that the emphasis of the ETR program should be on reducing work-related

trips. In addition, the environmental group commented that it would be

illegal to also emphasize reductions in vehicle miles travelled (VMT).

EPA Response--The EPA agrees that the intent of the section

182(d)(1)(B) of the CAA is to reduce work-related commute trips. We

feel that Texas' program will accomplish this goal. The ETR regulation

subjects employers to a [[Page 12443]] violation for not achieving the

target APO. The SIP clearly provides for sufficient penalties to deter

non-compliance. In addition to this ``penalty-based'' approach, the

State regulation also requires employers to sufficiently plan to ensure

that they meet their target APO. Employers are required to register

with the State, submit ETR compliance plans, implement their plan, and

monitor their progress towards meeting their target APO.

The EPA disagrees that it would be illegal to also emphasize

reductions in VMT. Section 182(d)(1)(B) of the CAA states that States

``shall submit a revision requiring employers in such area to implement

programs to reduce work-related vehicle trips and miles traveled by

employees.'' It is clear that the intent of this provision is to

accomplish a reduction in both trips and VMT associated with commuting.

Therefore, we do not believe it would be illegal to incorporate

reductions in VMT as part of the ETR program, as long as other

provisions of section 182(d)(1)(B) are met. While Texas currently does

not include VMT considerations in its ETR program, the EPA believes

that the State is not precluded from subsequently revising its ETR rule

to allow for VMT considerations.

Comment 3--One local citizen and the environmental group objected

to ETR trading or banking.

EPA Response--The current State ETR regulation does not allow for

ETR trading although the EPA's Employee Commute Options Guidance,

issued in December 1992, does allow employers in the same nonattainment

area to aggregate APO credits through averaging, banking and trading

(see page 16 of that guidance). We understand that the State may

consider establishing a trading program, which would require a

subsequent SIP revision.

The current State ETR rule does allow companies to bank ETR credits

for only one year. As explained in the EPA's ECO Guidance (see page

19), the EPA believes that in terms of public health benefits, early

reductions achieved through banking of APO credits offset later

application of banked credits because as the fleet turns over and

cleaner fuels are employed, each vehicle trip generates less emissions.

The TNRCC restricts the use of banked credits to one year. The EPA

believes that the use of the banked APO credits complies with the

intent of the statute and will not materially affect attainment by the

required date of 2007.

Comment 4--The environmental group commented that the term

``regular basis'' must be defined in the definition of ``carpool,''

otherwise a loophole will be created.

EPA Response--The EPA disagrees with this comment. The term

``carpool'' is defined in the SIP narrative to help clarify what types

of trip reduction measures may be effective in achieving compliance

with the target APO. The ETR regulation, however, does not define the

term ``carpool.'' The EPA does not believe that a loophole will be

created by not defining ``regular basis'' in the definition of

``carpool'' in the SIP. Compliance with the target APO is not

determined by the use of carpools, but rather through specific

calculations of actual occupancy based on travel commute data collected

through the employee surveys.

Comment 5--The environmental group commented that it is their

understanding that the definition of employer would not allow different

companies located at one common location to submit one ETR plan.

Instead, each company would have to submit its own ETR plan.

EPA Response--The EPA agrees with this comment, and believes that

the State regulation is unambiguous in requiring different companies

that occupy a common worksite to submit individual company plans.

Comment 6--The environmental group commented that they believe

motorcycles should be included in the definition of ``single occupancy

vehicle'' (SOV).

EPA Response--The EPA agrees but believes that the SIP narrative is

unambiguous in including motorcycles as part of the definition for a

SOV.

Comment 7--The environmental group commented that the amount of

credit given for alternative trip reduction strategies (e.g.,

alternative fuels) must be included in the ETR SIP. Currently, the SIP

states that such credit will be calculated in accordance with

procedures and formulas provided by the TNRCC.

EPA Response--It is our understanding that the State will not grant

credit for alternative trip reduction strategies unless and until the

protocols for granting such credit are adopted into the regulation. In

addition, the EPA will need to approve any credit for alternative trip

reduction strategies as part of the SIP. We understand that the State

plans to revise the ETR SIP through the full rulemaking process, to

incorporate appropriate credit for various alternative trip reduction

strategies.

Comment 8--The environmental group asked for clarification of the

term ``common control'' as used in the definition for ``worksite.''

EPA Response--In the definition of ``worksite,'' the State makes

clear that the term ``common control'' is further defined under the

definition of ``employer.'' We believe that the definition found under

``employer,'' is consistent with the EPA's guidance and is sufficiently

clear as to what types of organizations are intended.

Comment 9--The environmental group objected to the use of two

target APOs for the rural and urbanized areas. The group argued that

all employers in the nonattainment area should be required to meet a

1.46 target APO, rather than giving those in outlying areas ``a

break.''

EPA Response--Section 182(d)(1)(B) of the CAA states that, ``The

guidance of the Administrator may specify average vehicle occupancy

rates which vary for locations within a nonattainment area (suburban,

center city, business district) or among nonattainment areas reflecting

existing occupancy rates and the availability of high occupancy

modes.'' The EPA believes that Congress intended to provide States with

the flexibility to set different target APOs in a nonattainment area

based on varying existing occupancy rates and the availability of

alternative transportation modes.

In addition, as articulated in the EPA's ECO guidance (see page

16), the statutory phrase ``commuting trips between home and the

workplace'' can be interpreted to refer to the trips by any employees

in the area rather than only the employees of a specific employer.

Although the rural areas are required to meet a target that is less

than 25 percent above the AVO, the urbanized areas are required to meet

a target greater than 25 percent above the AVO. Therefore, across the

entire nonattainment area, the State of Texas is complying with the 25

percent increase requirement. The EPA's guidance explicitly allows for

averaging and trading between employers such that an employer who did

not achieve the target APO may still be in compliance if it obtains

sufficient credit from another employer who exceeded the target. The

TNRCC's two target area program is an institutionalized form of

averaging between employers.

Comment 10--The environmental group argued that there was not

adequate public participation in the development of the ETR regulation.

EPA Response--Section 110(a)(2) of the CAA provides that each

implementation plan submitted by a State must be adopted after

reasonable [[Page 12444]] notice and public hearing.1 Section

110(l) of the CAA similarly provides that each revision to an

implementation plan submitted by a State under the CAA must be adopted

by such State after reasonable notice and public hearing. 40 CFR 51.102

defines adequate public notice and comment to include: (1) Public

notification of the proposed SIP revision in a major newspaper in the

affected area; (2) a comment period of at least 30 days; (3) public

hearing; and (4) State analysis and response to the public comments.

The TNRCC met these requirements. Public notice on the proposed ETR

regulation was published in the Houston ozone nonattainment area on May

30, 1992, in the Houston Chronicle, and on May 31, 1992, in the Baytown

Sun, in accordance with the State of Texas's public notice

requirements. Public notice was also published in the Texas Register on

June 5, 1992 (see 17 Texas Register (TexReg) 4067). The State held a

public hearing on the proposed regulations on June 30, 1992, and the

comment period closed on July 8, 1992. Following the public hearing,

the ETR regulation was adopted by the State on October 16, 1992. The

publication of the final ETR regulation in the Texas Register on

November 27, 1992 (see 17 TexReg 8297), includes an extensive analysis

by the State of the comments received during the public comment period

and the State's recommended action. The EPA therefore disagrees with

this comment.

\1\Also Section 172(c)(7) of the CAA requires that plan

provisions for nonattainment areas meet the applicable provisions of

Section 110(a)(2).

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Comment 11--This environmental group argued that the term

``approvable ETR Plans'' is not defined, and recommended that the

phrase ``plans that meet all ETR plan requirements under the CAAA,'' be

used instead. The group also stated that the term ``convincingly

demonstrate'' must be defined.

EPA Response--The term ``approvable ETR plans'' is clarified on

page 28 of the SIP narrative, which states that the TNRCC ``will review

ETR plans based on completeness and accuracy of information

requested.'' We do not believe that the phrase ``plans that meet all

ETR plan requirements under the CAAA'' provides any additional

clarification because the CAA only requires that plans ``convincingly

demonstrate'' prospective compliance. As to a definition of

``convincingly demonstrate,'' as described in more detail in our

proposed approval of the Texas ETR SIP (see 58 FR 53694), the EPA

provided four options for States to meet the requirement that plans

``convincingly demonstrate'' prospective compliance. The TNRCC met this

requirement by selecting our fourth option by imposing significant

penalties for not meeting the target APO.

Comment 12--The environmental group challenged the adequacy of the

tracking and auditing procedures, and the current implementation of the

SIP.

EPA Response--The EPA disagrees that the tracking and auditing

procedures contained in the SIP are inadequate. Even though the EPA's

ECO guidance did not require specific tracking and auditing procedures,

the State's ETR SIP narrative and regulation address these provisions.

The SIP and the regulation specify numerous recordkeeping and reporting

requirements for affected employers. For example, Sec. 114.21(g) of the

regulation requires employers to maintain complete and accurate records

for at least two years, and details seven types of information which

must be included as part of those records. Section 114.21(h) details

the specific reports that employers must submit to the TNRCC. Section

8.c. of the SIP specifies the State's ETR quality assurance procedures,

which include auditing of employee surveys, announced and unannounced

site visits, and auditing of the required employer records. We believe

the TNRCC's procedures included in the SIP are fully adequate to ensure

proper implementation of the ETR program.

As to the commenter's concerns about current implementation of the

SIP, we do not believe that the TNRCC has fallen short of its

responsibility to implement the SIP. During 1994, the TNRCC has

increased the ETR staff, both in its headquarters office in Austin, and

in its Regional office in Houston. The TNRCC has implemented the

registration of affected employers, initiated training programs, and

developed the necessary forms and systems to implement the ETR employer

plans. The EPA believes that Texas's implementation of the ETR program

to date does not indicate that the EPA should hesitate to approve the

program.

Comment 13--The environmental group argued that allowing employers

to demonstrate compliance with the target APO up to two years after the

date of their plan submission deadline gave the employers too much

time.

EPA Response--The EPA disagrees since the TNRCC regulation is fully

consistent with the time frames specified in section 182(d)(1)(B) of

the CAA, which requires that employer plans convincingly demonstrate

compliance within two years of plan submittal.

Comment 14--The environmental group argued that records should by

kept by affected employers for five years, rather than only two years.

EPA Response--This comment was also provided to the TNRCC during

the State's public comment period. In response, the TNRCC stated that

they believed two years of information appears to be adequate to assess

compliance with the ETR requirements. The EPA agrees with the State

because the primary driving force behind compliance with the target APO

in Texas's program is the fact that substantial financial penalties may

be imposed on an employer for not meeting the target APO.

Comment 15--The environmental group commented that the SIP

narrative should state that ``falsifying or failing to maintain

appropriate records will be considered a violation of [TNRCC]

Regulation IV,'' rather than ``may be.''

EPA Response--This comment was submitted to the State during its

public comment period. The State responded that it is understood that

falsifying and failing to maintain required records are considered to

be violations of the regulation. The EPA agrees with the State since

section 114.21(g) of the ETR regulation clearly establishes mandatory

requirements for all employers to maintain complete and accurate

records for at least two years. In considering whether to issue a

notice of violation for falsifying or failing to maintain records, the

State looks at all facts and evaluates any possible mitigating

circumstances before committing State resources to take an enforcement

action. Therefore, the language contained in the SIP narrative is

consistent with the State's enforcement discretion over when it is

appropriate for the State to commit resources to initiate an

enforcement action.

Comment 16--This environmental group argued that the SIP should not

be approved because it does not detail the specific quality assurance

procedures that will be carried out by the State. The group also

commented that the SIP should state that audits will be conducted and

site visits will be conducted, rather than ``may be.''

EPA Response--Please see our response to comments 12 and 15 above

with respect to quality assurance and enforcement discretion.

Comment 17--The environmental group argued that the certification

of training programs procedures and the public information program must

be specified in the SIP. Also, the group asked that ``comprehensive

training course'' be defined and that the training should include a

discussion of the [[Page 12445]] health, welfare effects, and costs due

to air pollution.

EPA Response--While the EPA agrees that these items would be

beneficial to include in the SIP, we do not believe that the integrity

of the ETR program is threatened by not including these items since the

TNRCC ETR SIP fully meets the requirements of the CAA.

Comment 18--The environmental group argued that the SIP narrative

should read, ``failure to attain the appropriate target APO will be

considered violations of [TNRCC] Regulation IV,'' rather than ``may

be.''

EPA Response--Similar to our response to comment 15, we believe

that section 114.21(j)(4) of the State's ETR regulation clearly

establishes mandatory requirements for all employers to achieve final

compliance with the target APO no later than two years after the

applicable ETR plan submission deadline. It is therefore understood

that not complying with this requirement would be considered to be a

violation of the regulation. In considering whether to issue a notice

of violation for not achieving the target, however, the State looks at

all facts and evaluates any possible mitigating circumstances before

committing State resources to take an enforcement action. Therefore,

the language contained in the SIP narrative is consistent with the

State's enforcement discretion over when it is appropriate for the

State to commit resources to initiate an enforcement action.

Comment 19--This environmental group objected to the provision in

the SIP narrative that ``[i]n formulating an enforcement policy, the

[TNRCC] may consider any good faith effort made by the employer to

achieve compliance.''

EPA Response--An enforcement policy is developed to cover the

implementation and enforcement of a rule, not just the enforcement of a

particular case. The policy would discuss the appropriate enforcement

response that the State would take at each level of violation and might

also discuss what and how much penalty, if any, to assess. Any

enforcement policy of this type may always consider the good faith

efforts made to comply. In addition, as discussed above, in considering

whether to issue a notice of violation for not achieving the target,

the State looks at all facts and evaluates any possible mitigating

circumstances before committing State resources to take an enforcement

action. For these reasons, we believe the language contained in the SIP

narrative, is consistent with the State's enforcement discretion over

when it is appropriate for the State to commit resources to initiate an

enforcement action.

Comment 20--This environmental group commented that the methodology

to estimate the emission reductions from the ETR program should be

included in the SIP.

EPA Response--The EPA disagrees that the emission reduction

estimates must be included in this SIP submittal. The estimates need to

be included only to the extent that the State takes credit for the

reductions to meet a Reasonable Further Progress or attainment

demonstration requirement. In that case, the emissions estimates would

need to be included in that SIP submittal.

III. Final Action

In this action, the EPA is approving the ETR SIP revision adopted

by the State of Texas on October 16, 1992, and submitted to the EPA on

November 13, 1992. The State of Texas has submitted a SIP revision

implementing each of the ETR program elements required by section

182(d)(1)(B) of the CAA.

On February 23, 1994, the TNRCC adopted revisions to the ETR

regulation, revising the compliance deadlines for affected employers to

submit the ETR plans and comply with the target APO. These revisions

were submitted to the EPA on March 9, 1994.

In this FR document, the EPA is approving only the ETR SIP revision

which was submitted by the State of Texas on November 13, 1992. The EPA

will act upon the subsequent ETR SIP revision submitted by the State on

March 9, 1994, in a separate rulemaking action in the near future.

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 the SIP shall be

considered separately in light of specific technical, economical, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

Regulatory Process

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the 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, the 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 the 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)). The Office of Management and Budget has exempted

this action from review under Executive Order 12866.

Under section 307(b)(1) of the CAA, petitions for judicial review

of this action must be filed in the U.S. Court of Appeals for the

appropriate circuit by May 8, 1995. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule for the purposes of judicial review nor does

it extend the time within which a petition for judicial review may be

filed, and shall not postpone the effectiveness of such rule or action.

This action may not be challenged later in proceedings to enforce its

requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Incorporation by reference, Ozone.

Dated: December 23, 1994.

Jane N. Saginaw,

Regional Administrator.

40 CFR part 52 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 SS--Texas

2. Section 52.2270 is amended by adding paragraph (c)(91) to read

as follows:

Sec. 52.2270 Identification of plan.

* * * * *

(c) * * *

(91) Revisions to the TNRCC Regulation IV, concerning the Employer

Trip Reduction program, were submitted by the Governor on November 13,

1992.

(i) Incorporation by reference. [[Page 12446]]

(A) Revisions to the TNRCC Regulation IV (31 TAC Sec. 114.21,

Employer Trip Reduction Program), as adopted by the TACB on October 16,

1992.

(B) TACB Order 92-14 as adopted on October 16, 1992.

(C) SIP narrative entitled, ``Employer Trip Reduction Program,

Houston-Galveston Area,'' adopted by the TACB on October 16, 1992,

pages 31-38, addressing: 8.c. Quality Assurance Measures; 9. Training

and Information Assistance; 11. Enforcement; and 12. Notification of

Employers.

(ii) Additional material.

(A) SIP narrative entitled, ``Employer Trip Reduction Program,

Houston-Galveston Area,'' adopted by the TACB on October 16, 1992.

(B) The TACB certification letter dated November 10, 1992, signed

by William R. Campbell, Executive Director, TACB.

[FR Doc. 95-5439 Filed 3-6-95; 8:45 am]

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