[Federal Register Volume 59, Number 233 (Tuesday, December 6, 1994)]
[Unknown Section]
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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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