[Federal Register Volume 59, Number 159 (Thursday, August 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19909]


[[Page Unknown]]

[Federal Register: August 18, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 52

[IN39-1-6337A; FRL-5012-1]

 

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

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The United States Environmental Protection Agency (USEPA) 
approves the State Implementation Plan (SIP) revision request submitted 
by the State of Indiana on February 25, 1994, for the purpose of 
establishing an Employee Commute Options Program (ECO Program) in Lake 
and Porter Counties. The SIP request was submitted by Indiana to 
satisfy the statutory mandate that an ECO Program be established for 
employers in severe and extreme ozone nonattainment areas with 100 or 
more employees. Compliance plans developed by these 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. The 
rationale for the approval is set forth in this final rule; additional 
information is available at the address indicated in the Addresses 
section. In the proposed rules section of this Federal Register, USEPA 
is proposing approval of and soliciting public comment on this 
requested SIP revision. If adverse comments are received on this direct 
final rule, USEPA will withdraw this final rule and address the 
comments received in response to this final rule in a final rule on the 
related proposed rule which is being published in the proposed rules 
section of this Federal Register.

DATES: This action will be effective October 17, 1994, unless notice is 
received by September 19, 1994, that someone wishes to submit adverse 
comments. If the effective date is delayed, timely notice will be 
published in the Federal Register.

ADDRESSES: Copies of the ECO Program SIP revision request and USEPA's 
analysis are available for inspection at the following address: (It is 
recommended that you telephone Jessica Radolf at (312) 886-3198 before 
visiting the Region 5 Office.)

U.S. Environmental Protection Agency, Region 5, Air and Radiation 
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.

    Written comments can be mailed to: J. Elmer Bortzer, Chief, 
Regulation Development Section (AR-18J), Regulation Development Branch, 
Air and Radiation Division, U.S. Environmental Protection Agency, 77 
West Jackson Boulevard, Chicago, Illinois 60604.
    A copy of the ECO Program SIP revision is available for inspection 
at: Office of Air and Radiation (OAR), Docket and Information Center 
(Air Docket 6102), room 1500, U.S. Environmental Protection Agency, 401 
M Street, SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Jessica Radolf (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 Lake and Porter Counties to participate in a trip 
reduction program. The concerns that lead to the inclusion of this ECO 
provision in the amended Act are that more people are driving than ever 
before 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 via stricter tailpipe and fuel standards.
    Section 182(d)(1)(B) of the amended Act requires that employers in 
severe and extreme ozone and serious 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 are designed to convincingly demonstrate an increase in the 
APO of vehicles used by their employees who commute to work during the 
peak period by no less than 25 percent above the 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 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 February 25, 1994, the State of Indiana submitted a SIP revision 
request including Rule 326 IAC 19-1 to USEPA in order to satisfy the 
requirements of section 182(d)(1)(B) of the amended Act in Lake and 
Porter Counties. The Indiana ECO regulations include a number of 
definitions that USEPA has determined to be consistent with section 
182(d)(1)(B).
    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 determining that the AVO for Lake and Porter Counties at 
the time of SIP submittal was 1.17.

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. The State 
has met this requirement by setting the target APO at 1.46, which is 25 
percent above the AVO of 1.17.

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.1 In addition, States should develop procedures for 
notifying subject employers regarding the ECO Program requirements.
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    \1\The December 17, 1992, ECO guidance developed by USEPA allows 
that a de minimis exemption may be made at the State's option where 
by employers with worksites at which fewer than 33 employees report 
to work during the peak travel period are not subject to the ECO 
requirements.
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    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 requirement that initial compliance plans 
convincingly demonstrate compliance will be met. This demonstration can 
take on 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.
    Indiana has met these requirements by providing evidence in the SIP 
that Indiana Department of Environmental Management resources are 
available to implement the first option. Indiana will contract with the 
Northwestern Indiana Regional Planning Commission (NIRPC) to implement 
the ECO program in Lake and Porter Counties. One year after the 
effective date of the ECO regulations, November 29, 1994, NIRPC will 
begin requesting compliance plans from the approximately 170 employers 
in Lake and Porter Counties with 100 or more employees at a worksite. 
Upon receiving written notice by certified mail, employers meeting the 
applicability requirements of the regulations will submit to NIRPC a 
compliance plan within one hundred twenty (120) days of receipt of 
notification. The ECO plan will be implemented within one year of the 
plan's approval by NIRPC.

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. Indiana's ECO SIP has met this requirement 
by including in its ECO regulations substantial penalties for failure 
to comply with any provision of the regulation. A violator may be 
subject to a fine of up to $25,000 per day per violation as provided 
under the authority of Indiana Code (IC) 13-7-13-1(a). Violations 
include: 1) failure to submit an approvable plan or approvable plan 
update; 2) failure to implement an approvable plan or approvable plan 
update; 3) failure to provide any measure in an approved plan or 
approved plan update; 4) falsification of information on employment; 
and, 5) failure to respond to an order to comply. If an employer 
complies with all provisions of the approved ECO plan or plan update, 
but fails to meet the target APO, such failure is not a violation of 
this rule.

5. Clarifications of Indiana ECO Regulations

    Because USEPA found some parts of Indiana's submittal unclear, a 
letter of clarification was requested from the State. This letter was 
submitted to USEPA on June 29, 1994, from Timothy J. Method, Assistant 
Commissioner, Office of Air Management, Indiana Department of 
Environmental Management (IDEM). The contents of this letter are 
summarized below. The letter is available for public inspection in the 
docket for this action at the Region 5 address listed above:
    (1) Definition (b)(1) of the ``applicable employee population'' 
excludes for the purpose of calculating the APO employees who are off 
work because of jury duty, work action, vacation or sick leave; 
definition (m), the ``verifiable estimate of average passenger 
occupancy'', includes these same employees in the employee trip record 
surveys used to calculate the APO. There is effectively no 
inconsistency between definitions (b) and (m). Definition (m) requires 
that employees who are off work because of jury duty, work action, 
vacation or sick leave must be included in the documentation of the 
employee trip surveys that are used to calculate the APO. However, 
because these employees are not reporting to the worksite between 6:00 
a.m. and 10:00 a.m., they are recorded as zero persons arriving in zero 
vehicles and are, therefore, effectively excluded in the calculation of 
the APO.
    (2) Definition (d) of the ``average vehicle occupancy'' requires 
that the survey used to determine the AVO, must be conducted during a 
period that excludes any holidays and occurs during a time without 
holidays bordering the weekend on either side of the selected week. 
Definition (c) of the ``average passenger occupancy'' states only that 
national holidays may be excluded from the survey period. The survey 
periods for the APO and the AVO should have the same restrictions. The 
State program guidance instructs employers to conduct their APO survey 
during a week that excludes holidays and that does not have a holiday 
bordering the weekend on either side of the selected week.
    (3) The definition for ``employee'' refers to any full-time or 
part-time person working ten or more days per thirty day period who 
report to work or is assigned primarily to a worksite on a regular 
schedule over a thirty day period. A regular schedule refers to the 
total number of days per 30 day period worked regularly. Regardless of 
how the hours are scheduled, employees who work regularly ten or more 
days per thirty day period are included in the employee definition.
    (4) Definition (o) of a ``worksite'' means (1) and (2) or (1) or 
(2). If worksite means (1) or (2) then is it required that buildings 
owned or operated by the same employer or by employers under common 
control must be in the same nonattainment area. Indiana has confirmed 
that the definition of a worksite means (1) and (2). Therefore, to be 
considered a worksite a building or group of buildings must be in the 
same nonattainment area.
    (5) Sections (3)(d) and (5) (a) and (d) do not state a limit on the 
amount of time that could be granted to an employer for an extension or 
postponement of a plan submittal. IDEM intends to allow another 30 to 
60 days maximum for extensions or postponements of plan submittals.
    (6) Both Section (3)(e) and Section (5)(d), regarding the submittal 
of initial compliance plans and plan updates, respectively, state that 
failure by IDEM to respond to a plan, in writing, within 60 days, would 
result in automatic approval of the plan. It is IDEM's intention to 
review all plans and to send out letters to all employers within the 60 
day period. The affected worksites in Northwest Indiana will be 
notified in 4 staggered periods that are 60 days apart. Because 
employers must submit their plan 120 days after notification, there 
will be minimal overlap of submissions by the four groups and responses 
by IDEM will be spread over a ten month period. It is expected that it 
will take no longer than one day to review a plan and two staff 
persons, one at 75% time and one at 50% time, will be reviewing the 
plans.
    It should be noted that the Indiana 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. 
USEPA believes that this provision is intended to expedite the approval 
process for only those plans which 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. The USEPA intends to audit Indiana'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 USEPA finds that such requirements are not 
being complied with, USEPA will issue a SIP Call pursuant to Section 
110(k)(5) of the amended Act, requiring Indiana to submit a revision to 
the ECO SIP eliminating the provision for approval of compliance plans 
based on a 120 day time lapse.

III. Final Rulemaking Action

    The USEPA approves the SIP revision submitted by the State of 
Indiana. The State of Indiana 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 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 that 25 percent above the 
areawide AVO for all such trips. Employee notification will begin on 
November 27, 1994 and initial compliance plans are due 120 days after 
notification is received. The plan must be implemented within one year 
of approval by the State. 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, approving this submittal.

Procedural Background

    Because USEPA considers this action noncontroversial and routine, 
we are approving it without prior proposal. The action will become 
effective on October 17, 1994. However, if the USEPA receives adverse 
comments by September 19, 1994. Then the USEPA will publish a document 
that withdraws the action, and will address the comments received in 
response to this final rule in the final rule on the requested SIP 
revision which has been proposed for approval in the proposed rules 
section of this Federal Register. The comment period will not be 
extended or reopened.
    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 SIP revisions (54 FR 2222) from the 
requirements of Section 3 of Executive Order 12291 for 2 years. The 
USEPA 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 USEPA's request. This request 
continues in effect under Executive Order 12866 which superseded 
Executive Order 12291 on September 30, 1993. The 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, Carbon monoxide, 
Incorporation by reference, Ozone.

    Dated: June 30, 1994.
David A. Ullrich,
Acting Regional Administrator.

    For the reasons stated in the preamble, part 52, chapter I, title 
40 of the Code of Federal Regulations 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 P--Indiana

    2. Section 52.770 is amended by adding paragraph (c)(92) to read as 
follows:


Sec. 52.770  Identification of plan.

* * * * *
    (c) * * *
    (92) On February 25, 1994, Indiana submitted an employee commute 
option rule intended to satisfy the requirements of section 
182(d)(1)(B) of the Clean Air Act Amendments of 1990.
    (i) Incorporation by reference.
    (A) Title 326 of the Indiana Administrative Code, Article 19 MOBILE 
SOURCE RULES, Rule 1, Employee Commute Options. Filed with the 
Secretary of State, October 28, 1993. Effective November 29, 1993.
* * * * *
[FR Doc. 94-19909 Filed 8-17-94; 8:45 am]
BILLING CODE 6560-50-P