[Federal Register Volume 59, Number 135 (Friday, July 15, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-17302] [[Page Unknown]] [Federal Register: July 15, 1994] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [CT15-1-6080; A-1-FRL-5013-5] Approval and Promulgation of Air Quality Implementation Plans; Approval of the Employee Commute Options Program Submitted by the State of Connecticut Pursuant to Title I, Section 182(d)(1)(B) AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The EPA proposes to approve the State Implementation Plan (SIP) revision submitted by the State of Connecticut for the purpose of establishing an Employee Commute Options Program (Program). Connecticut submitted this SIP revision to satisfy the requirement in Section 182(d)(1)(B) of the Clean Air Act (CAA) that, for severe ozone nonattainment areas, states establish programs under which employers with 100 or more employees must develop compliance plans which convincingly demonstrate an increase in the average passenger occupancy (APO) of commute trips by their employees by no less than 25% above the average vehicle occupancy (AVO) of the nonattainment area. This action is being taken under Section 110 of the Clean Air Act. The rationale for the approval is included in this notice; additional information is available at the address indicated below. DATES: Comments on this proposed action must be received in writing by August 15, 1994. Public comments on this document are requested and will be considered before taking final action on this SIP revision. ADDRESSES: Comments may be mailed to Linda M. Murphy, Director, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region I, JFK Federal Bldg. (AAA), Boston, MA 02203. Copies of the state's submittal and EPA's technical support document are available for inspection during normal business hours, by appointment at the U.S. Environmental Protection Agency, Jerry Kurtzweg, ANR-443, 401 M Street, SW, Washington, D.C. 20460; the Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region I, One Congress Street, 10th floor, Boston, MA 02203; and the Bureau of Air Management, Department of Environmental Protection, 79 Elm Street, Hartford, CT 06106. FOR FURTHER INFORMATION CONTACT: Daniel J. Brown, (617) 565-9048, of the U.S. Environmental Protection Agency in Boston, MA. SUPPLEMENTARY INFORMATION: On January 12, February 1, and July 27, 1993, the Connecticut Department of Environmental Protection (DEP) submitted a revision to its State Implementation Plan (SIP) for air quality. The revision is designed to satisfy the requirements of Section 182(d)(1)(B) of the Clean Air Act, as amended in 1990 (CAA). I. Background Section 182(d)(1)(B) of the CAA requires that states, in which all or part of a severe ozone nonattainment area is located, must submit a SIP revision requiring employers in such areas to reduce work related trips and miles travelled by employees. Such employee commute option (ECO) programs are required to minimize the use of single occupant vehicles for work-related trips, thereby achieving emission reductions beyond what can be obtained through stricter tailpipe and fuel standards. Because parts of Connecticut's Fairfield and Litchfield Counties are in the New York-New Jersey-Connecticut severe nonattainment area, Connecticut was required to submit an ECO program covering those parts of the two counties. Under Section 182(d)(1)(B), Connecticut was required to submit its ECO SIP revision by November 15, 1992. Connecticut submitted its ECO SIP on January 12, 1993, and supplemented the program with submittals on February 1 and July 27, 1993. ECO SIP revisions must, at a minimum, require that each employer of 100 or more employees increase average passenger occupancy (APO) per vehicle in commuting trips during peak travel periods by not less than 25% above the AVO for all such trips in the area at the time the revision is submitted. To achieve this goal, the revision must require subject employers to submit compliance plans to the state two years after the SIP revision is submitted to EPA. These compliance plans, developed by each subject employer, shall convincingly demonstrate an increase in the APO of their employees who commute to work during the morning peak travel period by no less than 25% above the average vehicle occupancy (AVO) of the nonattainment area. These compliance plans must ``convincingly demonstrate'' that the employers will meet the target APO (at least 25% above the AVO) not later than four 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. EPA is also requesting comments on Connecticut's plan to modify its SIP submission by revising the definition of ``average vehicle occupancy'' to replace the requirement that it be calculated on or before November 15, 1992 with the requirement that it be calculated using a method acceptable to EPA; revising the definition of ``employer'' to include the State of Connecticut and any political subdivision of the State rather than a government department; and revising the dates by which employers of two hundred or more are required to submit compliance plans. Employers of two hundred or more will have additional time to submit compliance plans while still being required to submit plans no later than two years from the date of the SIP revision. Proposed amendments to the ECO legislation reflecting these changes are currently before the Connecticut legislature. EPA agrees with Connecticut that these are minor ``technical'' changes to the legislation that will not affect the approvability of the ECO SIP. Therefore, upon Connecticut's submission of a revised ECO SIP containing these revisions, EPA proposes to approve these revisions to the SIP in the final rulemaking on this proposal. Section 110(k) of the CAA contains provisions governing EPA's review of SIP submittals. Section 110(k) specifies that if the submittal satisfactorily addresses all of the required Program elements, EPA shall grant full approval. II. Analysis The State of Connecticut has submitted a SIP revision to EPA in order to satisfy the requirements of Section 182(d)(1)(B). EPA issued the Employee Commute Options Guidance on December 17, 1992 interpreting various aspects of the statutory requirements. Under this guidance, to gain approval, 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% 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. Connecticut has met the requirements of Section 182(d)(1)(B) by submitting a SIP revision that implements all required program elements. 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. Connecticut has met this requirement by establishing an AVO for the entire Connecticut portion of the severe nonattainment area. The AVO was calculated to be 1.19 based on the most recent census data and was included as part of the Connecticut SIP submittal on January 12, 1993. Connecticut has affirmed that this AVO is representative of the AVO at the time of submittal as required by Section 182(d)(1)(B). 2. The Target APO Section 182(d)(1)(B) indicates that the target APO must be not less than 25% above the AVO for the nonattainment area. An approvable SIP revision for this program must include the target APO. Connecticut has met this requirement in the SIP submittal on January 12, 1993, by including a target APO which is no less than 25% above the AVO. Connecticut provided EPA with the state regulation describing the methodology required to be followed by an employer when calculating the APO for the worksite. This method is consistent with EPA guidance and is binding on employers. Connecticut specifically requested that the calculation methodology not be included in the SIP revision since it is subject to change pending EPA guidance on allowable credit for alternatively fueled vehicles. EPA has agreed to withhold the APO calculation from the SIP revision and will audit any revisions to current methodology for consistency with EPA guidance. In the event that EPA finds revisions to the APO calculation methodology that are inconsistent with EPA guidance, EPA will issue a SIP call pursuant to Section 110(k)(5) of the Act, requiring the appropriate APO calculation methodology to be incorporated into an ECO SIP revision. 3. ECO Program State or local law must establish ECO 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 Guidance issued December 1992, EPA 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 requirements. State and/or local law 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 CAA requirement that initial compliance plans ``convincingly demonstrate'' compliance will be met. Connecticut has met these requirements, in the February 1, and July 27, 1993 SIP revisions, by including enacted legislation revising the General Statutes of Connecticut to provide for automatic coverage of employers of 100 or more located in the portion of Connecticut's Fairfield and Litchfield Counties which are in the New York-New Jersey- Connecticut severe nonattainment area. The SIP revision sets forth time schedules for notifying affected employers and requiring the submittal and implementation of compliance plans which convincingly demonstrate an increase in the APO of not less than 25%. The schedule for submission varies by employer size, but in any event all subject employers are required to submit a compliance plan, within two years from the date of the SIP revision, increasing the APO by 25% within four years from the date of the SIP revision, as required by the CAA. To ensure that compliance plans ``convincingly demonstrate'' compliance, the Connecticut Department of Transportation, or designated regional planning agency, shall within 120 days of a plan submittal evaluate the plan for its ability to convincingly demonstrate compliance. Employers whose compliance plan does not convincingly demonstrate compliance will be required to submit, within 60 days of notification, a revised compliance plan which convincingly demonstrates compliance. Connecticut will impose financial penalties for employers who do not submit a compliance plan, or a revised compliance plan, which convincingly demonstrates compliance. The penalties should be large enough to result in a significant prospective incentive for the employer to design and implement an effective initial compliance plan. The Connecticut ECO legislation includes a provision allowing an employer's compliance plan to be deemed approved in the absence of a response following the 120 day evaluation period. EPA believes that this provision is intended to expedite the approval process for only those plans which convincingly demonstrate compliance, thereby promoting early implementation of such plans. EPA is concerned that such a provision could result in a compliance plan which does not convincingly demonstrate compliance, being deemed approved in the event that a notice of inadequacy on such a plan is not provided within the 120 day evaluation period. It is therefore important that the state, or designated regional planning agency, review and take action promptly on submitted employer compliance plans. EPA intends to audit Connecticut's ECO program to assure that compliance plans are being evaluated as required, and notice is provided to employers whose compliance plans do not convincingly demonstrate compliance. If EPA finds that such requirements are not being complied with, EPA will issue a SIP call pursuant to Section 110(k)(5) of the Act, requiring Connecticut to submit a revision to the ECO SIP eliminating the provision for approval of compliance plans based on a 120 day time lapse. EPA has similar concerns regarding the definition of employee as described in the ECO legislation. The definition includes a provision which would exempt a person whose mode of transportation for performing such person's responsibilities is the same vehicle in which such person commuted to the employer's work location. EPA believes that this provision is intended for a limited classification of employees who require the use of a vehicle for such responsibilities as sale of products and also require the employee to commute to a worksite to obtain such products or samples thereof, eliminating the possibility for such an employee to not use their vehicle for commuting to the worksite. EPA will audit the Connecticut ECO program and in the event that EPA finds this provision to exclude employees which otherwise could commute to the worksite by a means which would assist the worksite to achieve the target APO, EPA will issue a SIP call pursuant to Section 110(k)(5) of the Act, requiring Connecticut to submit a revision to the ECO SIP eliminating this provision from the definition of employee. 4. Enforcement Procedures States and local jurisdictions need to include penalties and/or compliance incentives in their ECO regulations 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 severe enough to provide an adequate incentive for employers to comply and be no less than the expected cost of compliance. Connecticut has met this requirement, in the February 1, and July 27, 1993 SIP revisions, by including enacted legislation revising the General Statutes of Connecticut to provide penalties for an employer who fails to submit compliance plans, revised compliance plans, compliance reports, maintenance plans, and/or fails to implement such compliance and maintenance plans. Proposed Action EPA is proposing to approve the SIP revision submitted by the State of Connecticut. The State of Connecticut submitted a SIP revision implementing each of the program elements required by Section 182(d)(1)(B) of the CAA. 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 revisions (54 FR 2222) from the requirements of Section 3 of Executive Order 12291 for a period of two years. The U.S. EPA 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 EPA's request. This request continues in effect under Executive Order 12866 which superseded Executive Order 12291 on September 30, 1993. Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., 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, 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 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). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Ozone. Authority: 42 U.S.C. 7401-7671q. Dated: June 27, 1994. John P. DeVillars, Regional Administrator, Region I. [FR Doc. 94-17302 Filed 7-14-94; 8:45 am] BILLING CODE 6560-50-P