[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]



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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.

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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]
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