Approval and Promulgation of State Implementation Plan: Employee Commute Options (Employer Trip Reduction) Program for Texas

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-21-1-7345a; FRL-5894-4]

Approval and Promulgation of State Implementation Plan: Employee

Commute Options (Employer Trip Reduction) Program for Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: In this action, EPA is removing the Texas Employee Commute

Options (ECO) rule from the State Implementation Plan (SIP) revision

submitted by the State of Texas for the purpose of establishing an ECO

program (also known as the Employer Trip Reduction (ETR) program). This

action relieves the State from mandatory implementation of the ECO

program in the Houston-Galveston ozone nonattainment area. The

authority for this removal action is based on Public Law 104-70 and the

subsequent EPA policy issued on April 23, 1996. This legislation allows

the states to remove such provisions from the SIP, or withdraw their

submission, if the state notifies the Administrator, in writing, that

the state has undertaken, or will undertake, one or more alternative

methods that will achieve emission reductions equivalent to those to be

achieved by the removed or withdrawn provisions.

DATES: This action is effective on November 18, 1997, unless adverse or

critical comments concerning this action are submitted and postmarked

by October 20, 1997. If the effective date is delayed, timely notice

will be published in the Federal Register.

ADDRESSES: Comments must be submitted to Mr. J. Behnam, P.E., Air

Planning Section (6PDL), Environmental Protection Agency,Region 6, 1445

Ross Avenue, Dallas, Texas 75202-2733.

Copies of the State ECO withdrawal request are available for

inspection during normal business hours at the following locations.

Interested persons wanting to examine these documents should make an

appointment with the appropriate office at least 24 hours before the

visiting day.

Air Planning Section (6PDL), Multimedia Planning and Permitting

Division, Environmental Protection Agency, Region 6, 1445 Ross Avenue,

Dallas, Texas 75202-2733, telephone: (214) 665-7214.

Air and Radiation Docket and Information Center, Environmental

[[Page 49153]]

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. J. Behnam, P.E., Air Planning

Section (6PDL), Environmental Protection Agency, Region 6, 1445 Ross

Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7247.

SUPPLEMENTARY INFORMATION:

I. Background

Implementation of the provisions of the 1990 Clean Air Act (the

Act) required 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) required that employers submit ETR

compliance plans to the State two years after the SIP is submitted to

the EPA. These compliance plans were intended to ``convincingly

demonstrate'' that within four years after the SIP is submitted, the

employer will achieve an increase in the average passenger occupancy of

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

than 25 percent above the average vehicle occupancy of the

nonattainment area.

On November 13, 1992, the Governor of Texas submitted a SIP

revision for approval of the ECO regulation which was adopted by the

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

of the Texas ECO SIP in the Federal Register (FR) because it met the

requirements of section 182(d)(1)(B) of the Act. The EPA issued its

final approval of the original Texas ECO SIP revision in a Federal

Register action on March 7, 1995.

Public Law 104-70 allows states to remove provisions for ECO

programs from their SIPs. The state must notify the appropriate EPA

Regional Administrator, in writing, that it will exercise this option

and will use alternative methods to achieve emission reductions

equivalent to those which would be achieved in the ECO program. The

April 23, 1996, EPA policy memorandum specifies that the state's letter

requesting removal of its ECO program from an approved SIP must include

an estimate of the emission reductions to have been provided by the ECO

program and explain the basis for this estimate. Also, the state is

required to give the estimated emission reduction from the state's

substitute measures to be used in place of its ECO program.

II. State Submission and EPA Evaluation

Pursuant to section 182(d)(1)(B) of the Act, the SIP was submitted

by Texas to satisfy the statutory mandate that an ECO 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

of their employees who commute to work during the peak period, by no

less than 25 percent above the average vehicle occupancy of the

nonattainment area. In a letter dated September 23, 1996, Governor

George W. Bush requested removal of the ECO provisions from the SIP.

This request was based on Public Law 104-70, signed by President

Clinton on December 23, 1995, which amended the 1990 Clean Air Act so

that previously mandated ECO programs are now at the option of the

states. The removal of the ECO SIP revision and the associated ECO plan

submission date depends on identifying equivalent emissions reductions.

The State's request for removal of the ECO program indicated that

the State would use the emission reductions from its motor vehicle

inspection/maintenance (I/M) program, called Texas Motorist's Choice

(TMC), as the emission offset. The reductions produced by the I/M

program were to offset the volatile organic compound (VOC) emission

reductions attributed to the ECO program in the 15 percent and 9

percent rate-of-progress (ROP) SIP revisions for the Houston/Galveston

ozone nonattainment area. According to the State's modeling, the TMC

program would have produced excess emission reductions of 8.30 tons per

day in 1996 for the 15 percent ROP SIP and 10.52 tons per day in 1999

for the 9 percent ROP SIP. These reductions were intended to offset the

1.81 tons per day and 1.02 tons per day, respectively, which were

claimed in the original ROP SIPs for the ECO program. However, the I/M

rule (60 FR 48029) allows the State flexibility to design an I/M

program that would meet the EPA's mandated low enhanced performance

standards. The TMC I/M program meets the I/M flexible rule and is the

federally mandated program for the State of Texas. Use of the excess

emissions credits from the TMC I/M program is not consistent with EPA's

interpretation of the I/M rule. The I/M rule at 40 CFR 51.351(g)

entitled ``Alternate Low Enhanced I/M Performance Standard'' (60 FR

48035) specifies as a requirement that in order to be eligible for the

low enhanced program, this program must provide sufficient reduction to

allow for approval of the State's 15 and 9 percent SIPs. The Texas' 15

and 9 percent SIPs take emissions credits for the TMC I/M program, and

therefore, there is no excess emissions from the TMC I/M program to

offset the emissions reductions claimed for the ECO program in the

original 15 and 9 percent ROP SIPs.

Subsequently, EPA conferred with the State to clarify the Texas

emission offset approach. The State submitted a letter (received on

March 28, 1997) which clarified the State emissions offset approach in

the ROP SIPs. Based on this clarification, the State's offset for

emissions reductions from the ECO program will come from the total

excess emissions reductions identified from all control measures in the

15 percent and 9 percent ROP SIPs (23.73 tons per day and 10.69 tons

per day, respectively). These reductions offset the ECO emissions

reductions of 1.81 tons per day and 1.02 tons per day claimed in the

original 15 percent and 9 percent ROP SIPs, respectively.

The EPA believes that it was necessary to offset the ECO emissions

by non-federally-mandated control measures, and emissions reductions

from the TMC I/M program, which is a federally mandated program as

discussed above, cannot be used to offset the emissions reductions

claimed in the original ROP SIPs. The EPA has determined that Texas'

approach has adequately offset the ECO emissions reductions and meets

the intended purpose of the EPA ECO Policy memorandum. Therefore, EPA

is removing the Texas ECO rule, incorporated by reference, from Code of

Federal Regulations and relieves the State of Texas from implementation

of Texas ECO program, approved on March 7, 1995.

III. Final Action

In this action, EPA is removing the Texas ECO rule, which was

submitted by the Governor to EPA on November 13, 1992, and approved by

EPA on March 7, 1995, from the Code of Federal Regulations. The EPA has

determined that the State of Texas has satisfied the requirements of

the EPA ECO policy by offsetting the ECO emissions reductions claimed

in the original 15 and 9 percent ROP SIPs by the excess emissions

reductions form non-federally-mandated control measures.

The EPA is publishing this final approval action without advanced

notice of proposal because EPA views this as a noncontroversial

amendment and anticipates no adverse comments. However, in a separate

document in this

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Federal Register publication, EPA is simultaneously proposing to

approve this SIP revision should adverse or critical comments be filed.

This action will be effective November 18, 1997, unless adverse or

critical comments concerning this action are submitted and postmarked

by October 20, 1997.

If EPA receives such comments, this action will be withdrawn before

the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received concerning this

action will then be addressed in a subsequent final rule based on this

action serving as a proposed rule. The EPA will not institute a second

comment period on this action. Any parties interested in commenting on

this action should do so at this time. If no such comments are received

on this action, the public is advised that this action will be

effective November 18, 1997.

Nothing in this action shall be construed as permitting, allowing,

or establishing a precedent for any future request for a revision to

any SIP. Each request for revision to the SIP shall be considered

separately in light of specific technical, economic, and environmental

factors and in relation to relevant statutory and regulatory

requirements.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from Executive Order 12866 review.

B. Regulatory Flexibility

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. See 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. See 46 FR

8709. Small entities include small businesses, small not-for-profit

enterprises, and governmental entities with jurisdiction over

populations of less than 50,000.

The 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. 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 EPA from

basing 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).

C. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, the EPA must prepare a budgetary

impact statement to accompany any proposed or final rule that includes

a Federal mandate that may result in estimated costs to State, local,

or tribal governments in the aggregate; or to private sector, of $100

million or more. Under section 205, the EPA must select the most cost-

effective and least burdensome alternative that achieves the objectives

of the rule and is consistent with statutory requirements. Section 203

requires the EPA to establish a plan for informing and advising any

small governments that may be significantly or uniquely impacted by the

rule.

The EPA has determined that the approval action promulgated does

not include a Federal mandate that may result in estimated costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. This Federal action approves

preexisting requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, the EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in the

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

E. Petition for Judicial Review

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

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by November 18, 1997. Filing a petition for

reconsideration of this final rule by the Regional Administrator does

not affect the finality of this rule for purposes of judicial review;

nor does it extend the time within which a petition for judicial review

may be filed, or postpone the effectiveness of this rule. 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,

Hydrocarbons, Nitrogen dioxide, Ozone, Volatile organic compounds.

Dated: August 12, 1997.

Jerry Clifford,

Acting 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

Sec. 52.2270 [Amended]

2. Section 52.2270 is amended by removing and reserving paragraph

(c)(91).

[FR Doc. 97-24843 Filed 9-18-97; 8:45 am]

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