[Federal Register Volume 59, Number 233 (Tuesday, December 6, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29974]
[[Page Unknown]]
[Federal Register: December 6, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region II Docket No.137; NJ 18-1-6474, FRL-5116-9]
Approval and Promulgation of Implementation Plans; New Jersey
Employee Commute Options Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA proposes to approve a State Implementation Plan (SIP)
revision submitted by the State of New Jersey for the purpose of
establishing an Employee Commute Options Program. This SIP revision was
submitted by the State of New Jersey to satisfy the statutory mandate
that an Employee Commute Options Program be established for employers
with 100 or more employees. Under the New Jersey program, compliance
plans must be developed by these employers. These plans are to be
designed to convincingly demonstrate an increase in the average
passenger occupancy (APO) of their employees who commute to work during
the peak period of no less than 25 percent above the average vehicle
occupancy (AVO) of the nonattainment area. AVO is defined as the number
of employees reporting to all worksites in the program area from 6 a.m.
to 10 a.m., divided by the number of vehicles driven by these employees
during a typical work week. APO is defined as the number of employees
reporting to a specific site from 6 a.m. to 10 a.m., divided by the
number of vehicles driven by these employees.
DATES: Comments must be received on or before January 5, 1995.
ADDRESSES: All comments should be addressed to: William S. Baker,
Chief, Air Programs Branch, Environmental Protection Agency, Region II
Office, 26 Federal Plaza, New York, New York 10278.
Copies of the state submittal are available at the following
addresses for inspection during normal business hours:
Environmental Protection Agency, Region II Office, Air Programs Branch,
26 Federal Plaza, room 1034A, New York, New York 10278.
New Jersey Department of Environmental Protection, Office of Air
Quality Management, Bureau of Air Quality Planning, 401 East State
Street, CN418, Trenton, New Jersey 08625.
FOR FURTHER INFORMATION CONTACT: Jeffrey S. Butensky, Air Programs
Branch, Environmental Protection Agency, 26 Federal Plaza, room 1034A,
New York, New York 10278, (212) 264-2517.
SUPPLEMENTARY INFORMATION:
I. Background
The Clean Air Act as amended in 1990 requires employers with 100 or
more employees in severe and extreme ozone nonattainment areas to
participate in a trip reduction program. This includes 18 of the 21
counties in New Jersey, excluding the counties of Warren, Atlantic, and
Cape May. EPA issued guidance on December 17, 1992 interpreting various
aspects of the statutory requirements (Employee Commute Options
Guidance, December 1992). Although the federal program has been named
``Employee Commute Options,'' or ``ECO'', the State of New Jersey has
opted for the name ``Employer Trip Reduction,'' or ``ETR''. The program
shall be referred to as ``ETR'' for the remainder of this document.
The concern that led to the inclusion of the ETR provision in the
amended Clean Air Act is that people are driving more than ever before.
In addition, the distances driven per trip have increased considerably.
This has resulted in a rapid increase in the number of vehicle miles
traveled (VMT) and has 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 within a decade, the increased emissions
caused by increased VMT and congestion will outweigh the benefits
derived from new less polluting vehicles. Unless this increase in VMT
is mitigated, there will be an overall increase in emissions from motor
vehicles. The ETR provision is designed to decrease the use of single
occupancy vehicles and to reduce emissions--beyond what can be and will
be obtained via stricter tailpipe and fuel standards.
Section 182(d)(1)(B) of the amended Clean Air Act requires that
employers submit their compliance plans to a state within two years of
the date the State submits its trip reduction plan to EPA. The
compliance plans should be designed to ``convincingly demonstrate'' an
increase in the APO for their employees who commute to work during the
peak period by no less than 25 percent above the AVO of the area. New
Jersey has established different zones within its nonattainment areas
for the purpose of calculating the AVO. The compliance plans must
``convincingly demonstrate'' that the employers will meet the target
within two years of submitting a compliance plan, or by November 15,
1996 for New Jersey.
In order to gain approval, a state's submittal must contain each of
the following program elements: (1) The AVO for each zone if the area
is divided into zones; (2) the target APO(s) which is(are) no less than
25 percent above the AVO(s); (3) an ETR program that includes a process
for compliance demonstration; and (4) enforcement procedures to ensure
submission and implementation of compliance plans by employers. The
acceptability of these elements as submitted by New Jersey is discussed
below.
State Submissions
The final State regulation, containing AVO zones, was due to be
submitted to EPA on November 15, 1992. New Jersey submitted an
incomplete program on this date. On January 15, 1993, EPA notified the
Governor of New Jersey that the ETR program was incomplete and
sanctions would be implemented under Clean Air Act section 179 if a
complete program was not submitted within 18 months. On November 15,
1993, New Jersey submitted a SIP revision request containing the
required aspects of the program, including APO/AVO zones and measures
to enforce the program. EPA found the submittal complete on December
29, 1993, and thereby stopped the section 179(a)(1) sanction process.
II. Analysis
The following items are the basis for proposed approval of the SIP
revision. The State 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. The State has met this
requirement. In 1992, AVO was established by a telephone survey, and
based on demographic characteristics, the State has been divided into
two distinct AVO zones. The urban area zone includes the counties of
Bergen, Essex, Hudson, Union, and part of Passaic (municipalities of
Clifton, Paterson, and Passaic), and has an established AVO of 1.22.
The AVO of the suburban zone is 1.10 and includes the counties of
Burlington, Camden, Cumberland, Gloucester, Hunterdon, Mercer,
Middlesex, Morris, Ocean, Somerset, Salem, Sussex, and the remainder of
Passaic county.
2. The Target APO
Section 182(d)(1)(B) requires 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 fulfilled this requirement by computing target APOs that meet the
25 percent mandate. The suburban zone maintains a single area AVO and
APO, but the single urbanized zone has been divided into three distinct
target areas.
Urban area zones:
Sub-area 1: Urban Core including the Newark central
business district, Jersey City central business district, and Hoboken:
Target APO = 1.97
Sub-area 2: Remainder of Hudson County: Target APO = 1.73
Sub-area 3: The counties of Bergen, Union, the remainder
of Essex and the urbanized area of Passaic (municipalities of Clifton,
Paterson, Passaic): Target APO = 1.46
These three target zones averaged together produce an increase of
25 percent of the AVO as required by the Clean Air Act.
Suburban area zone (area described above): Target APO = 1.38
3. ETR Program
Based on the requirements of the Clean Air Act, state or local law
must establish ETR requirements for employers with 100 or more
employees at a worksite within severe and extreme ozone nonattainment
areas. In the ETR Guidance issued December 1992, EPA states that
automatic coverage of employers of 100 or more should be included in
the provision. In addition, states should develop procedures for
notifying employers of the ETR requirements. The State of New Jersey
has fulfilled these requirements.
EPA will allow New Jersey to provide additional time to employers
that request an extension. The rule requires employers to comply by
1996 but allows an extension for the penalties for noncompliance until
1997. This is allowed because the Clean Air Act states that employers
must comply within four years of program submittal by the State. Since
the program was submitted on November 15, 1993, the State may allow
employers until November 15, 1997 to comply with the program.
The rule specifies that a contract employee is defined as working
at a location for a least six months over the course of a year.
Employees that work less that six months are not incorporated into the
program. The State believes that this is appropriate since an employee
that works less than six months at one location is likely to work more
than six months at another location. Although in concurrence, EPA is
not comfortable with a six month period and would prefer a period of
shorter duration.
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 regulations to ensure that
the Clean Air Act requirement to ``convincingly demonstrate''
compliance will be met. This demonstration can take on any of four
forms or any combination of these.
One option is for a state to include in the SIP evidence that
agency resources are available for a plan-by-plan review of employer
selected measures to ensure the high quality of compliance plans.
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 EPA as
adequate when the SIP is processed.
A third option is for the regulations in the SIP to provide that
failure of 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 EPA for adequacy when the SIP is
processed.
A fourth option is for the regulations in the SIP to include
financial penalties and/or compliance incentives for non-compliant
employers that are effective enough to result in a significant
incentive for the employer to design and implement an effective
compliance plan.
The New Jersey program is essentially a combination of options 1
and 4, or plan review and penalty assessment. New Jersey has instituted
a certification procedure that utilizes a list of several State
approved outside certification organizations. This list of outside
certifiers consists of several private firms and self-employed
certifiers, and employers may choose from this list. The certifiers
will review employer plans to assure that they ``convincingly
demonstrate'' compliance. Certifiers will look for completeness and
other program attributes, but the New Jersey Department of
Transportation will ultimately have the rights to final approval of an
employer plan. An employer plan is automatically approved after 180
days if the certification process has not been completed.
In addition, a detailed schedule of financial penalties will be
enforced on employers that do not register or comply. Although the rule
provides a means to assess fines which EPA believes are sufficient to
deter non-compliance, waivers are available if an employer shows a good
faith effort towards compliance.
4. Enforcement Procedures
States and local jurisdictions must include enforcement provisions
in their ETR regulations such as penalties and/or compliance incentives
for an employer who fails to submit a compliance plan or an employer
who fails to meet the APO targets. Penalties should be severe enough to
provide an adequate incentive for employers to comply and be no less
than the expected cost of compliance. A state may meet this requirement
by developing a procedure for tracking and fining non-complying
employers. New Jersey's penalties for noncompliance are as follows:
1--Maximum of $250 for the first two months and $500 for each month
thereafter for each work location that fails to submit a registration
form.
2--Maximum of $1000 per month for each work location that fails to file
a plan or report.
3--Maximum of $5000 per month for each work location that fails to
achieve the APO target (actual assessment of this penalty for an
employer may be waived if a good faith effort is shown).
The rule allows for extensions but does not limit the time period
for which they could be granted. The State has indicated that it has
and will continue to limit extensions to six months in duration. EPA is
proposing to approve the plan contingent on the State limiting
extensions in this manner. Should EPA find that New Jersey is issuing
extension for longer periods, the agency proposes to initiate the
process to disapprove the SIP.
The rule allows hardship waivers but does not limit the duration of
the waiver. However, good faith waivers are limited to one year. In
addition, the rule indicates that hardship waivers are to be assessed
through the procedures for assessing good faith waivers. The State has
indicated that it interprets the rule as requiring through this
provision a one year limit on hardship waivers also. EPA proposes to
approve the program based on this understanding.
III. Other Issues
1. Shifting Commuters Out of the Peak Period
New Jersey rule allows for shifting commuters out of the peak
period while continuing to count the commuters (people but not their
vehicles) as if they arrived during the 6:00 a.m. to 10:00 a.m. peak
period, which is the most critical time for emissions which lead to
ground level ozone formation. This raises the vehicle occupancy rate
because the number of employees remains stable while the number of
vehicles arriving at the workplace is decreased by the number which
arrive outside of the peak period. EPA's policy has been to require
employers to calculate their vehicle occupancy rate by reducing both
the number of employees and the number of vehicles so that only those
arriving during the peak period are included in the calculation.
EPA believes that most employers will not be able to take advantage
of this to any significant degree because most will not be able to have
employees start outside of the peak period. For those that do take
advantage of this provision, the trips will have at least been shifted
out of the most congested periods of the day and the emissions from
these trips will have been shifted out of the key 6:00 a.m. to 9:00
a.m. period. Therefore, EPA proposes to accept this approach by New
Jersey.
2. Trading Credits Between Nonattainment Areas
New Jersey's rule allows trading of credits between employers in
the two different severe nonattainment areas in the State. However,
EPA's ECO guidance only allows for trades within the same nonattainment
area. EPA's guidance is based on ECO applying specifically to discrete
nonattainment areas; therefore, the trading of APO credits across
nonattainment area boundaries should not be accepted based on an
interpretation that the term, ``area,'' in section 182(d)(1)(B) should
only be construed to mean ``nonattainment area.''
Under this interpretation, facilities located within two miles from
one another, but in different contiguous nonattainment areas, could not
trade credits with one another, but could trade credits with a facility
located 100 miles away in the same nonattainment area. This is not
consistent with the policy relating to stationary sources, which can
trade offsets between one nonattainment area and another in the
northeast ozone transport region. This policy was established in a
March 31, 1993 letter from John Seitz, the Director of the Office of
Air Quality Planning and Standards to Bruce S. Carhart, the Executive
Director of the Ozone Transport Commission. Furthermore, EPA has no
reason to believe that trading would not be equitable across the two
nonattainment areas. Therefore, the Region's position is that since the
New Jersey program exists in two contiguous severe nonattainment areas
within the State, trading should be allowed across the nonattainment
area boundaries in the New Jersey program, and EPA proposes to accept
this provision of the New Jersey rule.
3. Giving Full Credit for Alternative Fuel Vehicles
The State's rule allows for not including alternatively fueled
vehicles as a vehicle in the calculation of occupancy rates. EPA's
policy has been that alternatively fueled vehicles may be exempted from
counting as a full vehicle.
EPA believes that this provision of the New Jersey rule will have a
minor impact on the program's effectiveness since it is unlikely that
many employees will have access to alternative fueled passenger cars.
It is more likely that some multi-passenger vans or buses will be
alternatively fueled and these will be excluded from the count of
vehicles because of their capacity even without the exclusion for
alternative fuels. Therefore, EPA proposes to accept this provision of
the New Jersey Rule.
4. Giving Full Credit for Seven and Eight Passenger Vehicles
The State's rule counts vanpools arriving at the worksite with
seven or eight employees as ``zero vehicles arriving.'' EPA's policy
allows only nine passenger and greater vehicles not to be counted as a
vehicle arriving at a worksite.
EPA believes that although this provision in the rule will allow
some smaller vans and larger station wagons carrying seven or eight
employees to be excluded from the count of vehicles arriving at a
worksite, that this will not be a significant number of vehicles beyond
those already excluded by EPA's policy and will allow employers the
flexibility to arrange for vehicles of a size which best fits their
needs. Therefore, EPA proposes to accept this provision of the New
Jersey Rule.
IV. Conclusion
In this proposal, EPA is proposing to approve the SIP revision
submitted by the State of New Jersey which contains the ETR program.
This submittal addresses and implements each of the program elements
required by section 182(d)(1)(B) of the Clean Air Act. As a result, EPA
is proposing to approve this submittal.
Nothing in this proposed rule 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
the 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.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air 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 Clean Air Act, preparation of a regulatory flexibility
analysis would constitute federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v US
EPA, 427 US 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
The Office of Management and Budget has exempted this action from
review under Executive Order 12866.
List of Subjects in 40 CFR Part 52
Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation
by reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C 7401-7671q.
Dated: November 17, 1994.
William J. Muszynski, P.E.,
Deputy Regional Administrator.
[FR Doc. 94-29974 Filed 12-5-94; 8:45 am]
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