[Federal Register Volume 59, Number 211 (Wednesday, November 2, 1994)]
[Proposed Rules]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27174]


[[Page Unknown]]

[Federal Register: November 2, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IN22-3-6576; FRL-5096-9]

 

Approval and Promulgation of an Implementation Plan for Vehicle 
Miles Traveled; Indiana

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The United States Environmental Protection Agency (USEPA) 
proposes to approve a request for a State Implementation Plan (SIP) 
revision, addressing the Lake and Porter County ozone nonattainment 
area, submitted by the State of Indiana for the purpose of offsetting 
any growth in emissions from growth in vehicle miles traveled (VMT) or 
number of vehicle trips, and to attain reduction in motor vehicle 
emissions, in combination with other emission reduction requirements, 
as necessary to comply with Reasonable Further Progress (RFP) 
milestones and attainment requirements of the Clean Air Act (Act). The 
rationale for this proposed approval is set forth below; additional 
information is available at the address indicated below.

DATES: Comments on this proposed rule must be received on or before 
December 2, 1994.

ADDRESSES: Written comments should be sent to: J. Elmer Bortzer, Chief, 
Regulation Development Section, Regulation Development Branch (AR-18J), 
USEPA, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-
3590.

    Copies of the documents relevant to this action are available for 
inspection during normal business hours at the following location: 
Regulation Development Section, Regulation Development Branch (AR-18J), 
U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois, 60604.
    Please contact Patricia Morris at (312) 353-8656 before visiting 
the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Patricia Morris, Regulation 
Development Section, Regulation Development Branch (AR-18J), U.S. 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 353-8656.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 182(d)(1)(A) of the Act, as amended in 1990 (Act), requires 
States containing ozone nonattainment areas classified as ``severe'' 
pursuant to section 181(a) of the Act to adopt transportation control 
measures (TCMs) and transportation control strategies to offset any 
growth in emissions from growth in VMT or number of vehicle trips, and 
to attain reductions in motor vehicle emissions (in combination with 
other emission reduction requirements) as necessary to comply with the 
Act's RFP milestones and attainment requirements. The requirements for 
establishing a VMT Offset program are discussed in the April 16, 1992, 
General Preamble to title I of the Act (57 FR 13498), in addition to 
section 182(d)(1)(A) of the Act.
    For certain programs required under the Act (including VMT-Offset), 
USEPA had earlier adopted a policy pursuant to section 110(k)(4) of the 
Act to conditionally approve SIPs that committed to provide the USEPA 
with specific enforceable measures by a date certain. That 
interpretation was challenged in Natural Resources Defense Council v. 
Browner, consolidated lawsuits brought in the United States Court of 
Appeals for the District of Columbia Circuit. In a full opinion, dated 
May 6, 1994 (and in a March 8, 1994 Order and April 22, 1994 Amended 
Order issued earlier), the Court found that USEPA's conditional 
approval interpretation exceeded USEPA's statutory authority. While the 
Court did not specifically address the VMT Offset program in its orders 
or opinions, USEPA believes that the Court's general conclusions that 
the USEPA's construction of the conditional approval provision was 
unlawful precludes USEPA from taking action to approve any submitted 
VMT Offset committal SIPs.
    On September 10, 1993, the USEPA published a proposed rule (58 FR 
47701) to conditionally approve Indiana's commitment for the VMT-Offset 
requirement. In light of the Court opinion, Indiana has withdrawn the 
committal SIP in a letter dated July 5, 1994.
    In light of the outcome of the litigation, USEPA has decided that 
it would be appropriate to interpret the VMT Offset provision of the 
Act to account for how States can practicably comply with each of the 
provision's elements. The VMT Offset provision requires that States 
submit by November 15, 1992, specific enforceable TCMs and strategies 
to offset any growth in emissions from growth in VMT or number of 
vehicle trips sufficient to allow total area emissions to comply with 
the RFP and attainment requirements of the Act.
    The USEPA has observed that these three elements (i.e., offsetting 
growth in mobile source emissions, attainment of the RFP reduction, and 
attainment of the ozone National Ambient Air Quality Standards (NAAQS) 
create a timing problem of which Congress was perhaps not fully aware. 
As discussed in USEPA's April 16, 1992, General Preamble to title I, 
ozone nonattainment areas affected by this provision were not otherwise 
required to submit SIPs that show attainment of the 1996 15% RFP 
milestone until November 15, 1993, and likewise are not required to 
demonstrate post-1996 RFP and attainment of the NAAQS until November 
15, 1994. The SIP demonstrations due on November 15, 1993, and on 
November 15, 1994, are broader in scope than growth in VMT or trips in 
that they necessarily address emission trends and control measures for 
non motor vehicle emission sources and, in the case of attainment 
demonstrations, complex photochemical modeling studies.
    The USEPA does not believe that Congress intended the VMT Offset 
provision to advance the dates for these broader submissions. Further, 
USEPA believes that the November 15, 1992, date would not allow 
sufficient time for States to have fully developed specific sets of 
measures that would comply with all of the elements of the VMT Offset 
requirements of section 182(d)(1)(A) over the long term. Consequently, 
USEPA believes it would be appropriate to interpret the Act to provide 
the following alternative set of staged deadlines for submittal of 
elements of the VMT Offset SIP.
    Under this interpretation, the three required elements of section 
182(d)(1)(A) are separable, and can be divided into three separate 
submissions that could be submitted on different dates. Section 179(a) 
of the Act, in establishing how USEPA would be required to apply 
mandatory sanctions if a State fails to submit a full SIP also provides 
that the sanctions clock starts if a State fails to submit one or more 
SIP elements, as determined by the Administrator. The USEPA believes 
that this language provides USEPA the authority to determine that the 
different elements of a SIP submission are separable. Moreover, given 
the continued timing problems addressed above, USEPA believes it is 
appropriate to allow States to separate the VMT Offset SIP into three 
elements, each to be submitted at different times: (1) The initial 
requirement to submit TCMs that offset growth in emissions; (2) the 
requirement to comply with the 15% periodic reduction requirement of 
the Act; and (3) the requirement to comply with the post-1996 periodic 
reduction and attainment requirements of the Act.
    Under this approach, the first element, the emissions offset 
element, was due on November 15, 1992. The USEPA believes this element 
is not necessarily dependent on the development of the other elements. 
The State could submit the emissions growth offset element independent 
of an analysis of that element's consistency with the periodic 
reduction and attainment requirements of the Act. Emissions trends from 
other sources need not be considered to show compliance with this 
offset requirement. As submitting this element in isolation does not 
implicate the timing problem of advancing deadlines for RFP and 
attainment demonstrations, USEPA does not believe it is necessary to 
extend the statutory deadline for submittal of the emissions growth 
offset element.
    The second element, which requires the VMT Offset SIP to comply 
with the 15% RFP requirement of the Act, was due on November 15, 1993, 
which is the same date on which the 15% RFP SIP itself was due under 
section 182(b)(1) of the Act. The USEPA believes it is reasonable to 
extend the deadline for this element to the date on which the entire 
15% SIP was due, as this allows States to develop the comprehensive 
strategy to address the 15% reduction requirement and assure that the 
TCM elements required under section 182(d)(1)(A) are consistent with 
the remainder of the 15% demonstration. Indeed, USEPA believes that 
only upon submittal of the broader 15% plan can a State have had the 
necessary opportunity to coordinate it's VMT strategy with it's 15% 
plan.
    The third element, which requires the VMT Offset SIP to comply with 
the post-1996 RFP and attainment requirements of the Act, will be due 
on November 15, 1994, the statutory deadline for those broader 
submissions. The USEPA believes it is reasonable to extend the deadline 
for this element to the date on which the post-1996 RFP and attainment 
SIPs are due for the same reasons it is reasonable to extend the 
deadline for the second element. First, it is arguably impossible for a 
State to make the showing required by section 182(d)(1)(A) for the 
third element until the broader demonstrations have been developed by 
the State. Moreover, allowing States to develop the comprehensive 
strategy to address post-1996 RFP and attainment by providing a fuller 
opportunity to assure that the TCM elements comply with the broader RFP 
and attainment demonstrations, will result in a better program for 
reducing emissions in the long term.
    On November 17, 1993, Indiana submitted to USEPA documentation to 
fulfill the first and second elements of the VMT-Offset SIP. A public 
hearing was held on December 14, 1993, and documentation on the public 
hearing was submitted to complete the SIP revision request. Indiana 
does not at this time anticipate the need for additional TCMs to meet 
the attainment demonstration requirement but will submit any necessary 
TCMs with the attainment demonstration SIP.

Evaluation of the State Submittal

    Section 182(d)(1)(A) of the Act requires the State to offset any 
growth in emissions from growth in VMT. As discussed in the General 
Preamble, the purpose is to prevent a growth in motor vehicle emissions 
from canceling out the emission reduction benefits of the federally 
mandated programs in the Act. The USEPA interprets this provision to 
require that sufficient measures be adopted so that projected motor 
vehicle volatile organic compound (VOC) emissions will never be higher 
during the ozone season in one year than during the ozone season in the 
year before. When growth in VMT and vehicle trips would otherwise cause 
a motor vehicle emissions upturn, this upturn must be prevented. The 
emissions level at the point of upturn becomes a ceiling on motor 
vehicle emissions. This requirement applies to projected emissions in 
the years between the submission of the SIP revision and the attainment 
deadline and is above and beyond the separate requirements for the RFP 
and the attainment demonstrations. The ceiling level is defined 
therefore, up to the point of upturn, as motor vehicle emissions that 
would occur in the ozone season of that year, with VMT growth, if all 
measures for that area in that year were implemented as required by the 
Act. When this curve begins to turn up due to growth in VMT or vehicle 
trips, the ceiling becomes a fixed value. The ceiling line would 
include the effects of Federal measures such as new motor vehicle 
standards, phase II RVP controls, and reformulated gasoline, as well as 
the Act mandated SIP requirements.
    The State of Indiana has demonstrated in its submittal of November 
17, 1993, that the predicted growth in VMT in Lake and Porter Counties, 
Indiana, is not expected to result in a growth in motor vehicle 
emissions that will negate the effects of the reductions mandated by 
the Act. Further, Indiana has projected motor vehicle emissions to the 
year 2007 and, using the most current socioeconomic data, has not 
predicted an upturn in motor vehicle emissions. In the event that the 
projected socioeconomic data and associated VMT grow more rapidly than 
currently predicted, Indiana is required by section 182(c)(5) to track 
actual VMT starting with 1996 and every three years there after to 
demonstrate that the actual VMT is equal to or less than the projected 
VMT. TCMs will be required to offset VMT that is above the projected 
levels (section 182(c)(5)).
    The VMT offset submittal from Indiana dated November 17, 1993, 
contains the final report ``TCMs to Offset Emissions from VMT Growth in 
Northwestern Indiana.'' The report used the most current socioeconomic 
data and the travel network model in conjunction with the MOBILE5a to 
estimate mobile source emissions to the attainment year of 2007.
    This report also documents the progress Indiana has made in 
evaluating TCMs to reduce growth in VMT and thus reduce emissions. 
Indiana may choose to take credit for TCM emission reductions as part 
of the post 1996 RFP requirement or to meet the attainment requirement. 
Not only has Indiana evaluated the effectiveness and predicted impact 
of a number of TCMs but actual implementation of selected TCMs has been 
ongoing. For example, a new inter city bus route to link the cities of 
Hammond, East Chicago and Gary, Indiana has been started. These three 
cities have operated established intra city bus routes for many years 
and this is the first route to link the already existing transit 
services for these cities.
    These specific TCMs however, are not a part of the current SIP 
revision request and are not a required portion of this SIP revision. 
Thus, Indiana is not currently taking credit for the emission 
reductions from these TCM measures and the State is not bound to 
implement or continue to implement any specific TCMs. These measures, 
however, illustrate Indiana's work in evaluating and implementing TCMs 
to meet the requirements of the Act. Also, the TCMs may be used in 
subsequent SIP submittals as necessary to meet the post 1996 RFP 
requirement or the attainment requirement.
    Additionally, Indiana is implementing TCMs to complement the 
employee commute options (ECO) program which requires a 25 percent 
reduction in single occupancy vehicle usage for home to work trips for 
employers of 100 or more persons. Activities include: Planning and 
promotion, new bus routes, improved transit service, and carpooling 
match-up services. A number of TCMs have been implemented in Lake and 
Porter Counties through use of the Department of Transportation's 
congestion mitigation and air quality funds under the Intermodal 
Surface Transportation Efficiency Act. These projects have included: 
purchasing clean fueled buses, operation of new bus service, improved 
transit service and ECO activities. In conclusion, Indiana is 
evaluating and implementing TCMs as expeditiously as possible even when 
the emissions projections indicate that mobile source emissions will 
continue to decline without additional TCMs.
    Indiana submitted a 15 percent RFP SIP for northwest Indiana to the 
USEPA in November 1993, but the submittal was found incomplete in a 
letter dated January 25, 1994. The RFP SIP lacked enforceable 
regulations and a public hearing. The public hearing was held on March 
29, 1994. Although the RFP SIP is still incomplete due to the lack of 
enforceable regulations. Indiana's submittal does indicate that TCM's 
would not be necessary to attain the 15% reduction required by 1996. 
The RFP SIP asserts that a 15% reduction in emissions could be achieved 
by 1996 through the feasible measures detailed in the SIP submittal. 
Under the approach contained in the submittal, the State would achieve 
the 15% reduction in VOCs through measures other than relying on TCMs. 
The majority of the reduction would be obtained from stationary source 
shut downs. Other measures include enhanced vehicle inspection and 
maintenance and reformulated gasoline. For the attainment demonstration 
which is due November 14, 1994, Indiana has indicated that it will 
include TCMs as necessary to reach attainment.

Summary of Findings

    In the requested SIP revision submittal, Indiana has projected 
motor vehicle emissions until the statutory attainment year of 2007 
using the most recent population and economic growth projections. These 
projections went through public hearing and comment on December 14, 
1993. Using current VMT forecasts, these projections show that motor 
vehicle emissions are not expected to rise above the ceiling level 
through the year 2007.
    In addition, Indiana has identified and evaluated a number of 
specific TCMs to reduce single occupancy vehicle usage. Several of 
these identified TCMs are currently being implemented. The VMT offset 
submittal from Indiana dated November 17, 1993, contains the final 
report ``TCMs to Offset Emissions from VMT Growth in Northwestern 
Indiana.'' This report documents the progress Indiana has made in 
evaluating TCMs to reduce growth in VMT and thus reduce emissions. 
Indiana has evaluated the effectiveness and predicted impact of a 
number of TCMs through actual implementation of selected TCMs, although 
these TCMs are not a part of the SIP revision and Indiana is not taking 
emission reduction credit for these TCMs.
    Indiana has met the first and second requirements of the VMT offset 
plan. Indiana has identified and evaluated TCMs to reduce VMT. 
Regarding the first requirement, Indiana has demonstrated in the 
November 17, 1993, submittal that projected growth in VMT is not 
expected to result in an increase in emissions from motor vehicles and 
is not expected to negate the progress in emissions reductions required 
to meet attainment of the standard by 2007. Regarding the second 
element, Indiana listed in its incomplete 15% RFP submittal feasible 
measures intended to meet the 15% reduction by 1996 without relying on 
TCMs and has shown that further TCMs are not necessary to meet the 
second element of section 182(d)(1)(A). The third requirement is for 
Indiana to use TCMs as necessary to meet the attainment of the 
standard. This third requirement will be submitted with the attainment 
demonstration SIP and will be addressed in future proposed and final 
rules.
III. Proposed Rulemaking Action and Solicitation of Comments

    Based on the submittal accompanying the State's SIP revision 
request, USEPA proposes to approve the SIP revision submitted by the 
State of Indiana as satisfying the first two of the three VMT offset 
plan requirements. Public comments are solicited on the requested SIP 
revision and on USEPA's proposed rulemaking action. Comments received 
by December 2, 1994, will be considered in the development of USEPA's 
final rule.
    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. The Office of Management and Budget 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 SIP. Each request for revision to any SIP 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 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. 
See 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, Ozone.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: September 30, 1994.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 94-27174 Filed 11-1-94; 8:45 am]
BILLING CODE 6560-50-P