[Federal Register Volume 60, Number 39 (Tuesday, February 28, 1995)]
[Proposed Rules]
[Pages 10823-10826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4789]



-----------------------------------------------------------------------


ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 52

[IL97-1-6575; FRL-5158-6]


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

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The USEPA is proposing to approve the State Implementation 
Plan (SIP) revision request submitted by the State of Illinois on July 
8, 1994, for the purpose of establishing an Employee Commute Options 
Program (ECO Program) in the Chicago area, including the counties of 
Cook, Lake, DuPage, McHenry, Kane and Will and the townships of Aux 
Sable and Gooselake in Grundy County and Oswego in Kendall County. The 
rationale for the 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 
March 30, 1995.

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 ECO Program SIP revision request and USEPA's 
analysis are available for inspection at the following address: U.S. 
Environmental Protection Agency, Region 5, Air and Radiation Division, 
77 West Jackson Boulevard, Chicago, Illinois 60604.

(It is recommended that you telephone Jessica Radolf at (312) 886-3198 
before visiting the Region 5 Office.)

FOR FURTHER INFORMATION CONTACT: Jessica Radolf, Regulation Development 
Section, Regulation Development Branch, (AR-18J) USEPA, Region 5, 77 
West Jackson Boulevard, Chicago, Illinois 60604-3590, (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 the counties of Cook, Lake, Dupage, McHenry, Kane, and 
Will and the townships of Aux Sable and Gooselake in Grundy County and 
Oswego in Kendall County to participate in a trip reduction program. 
The concerns that lead to the inclusion of this Employee Commute 
Options (ECO) provision in the amended Act are that more people are 
driving 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 through stricter tailpipe and fuel standards.
    Section 182(d)(1)(B) of the amended Act requires that employers in 
severe and extreme ozone and 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 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. 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 [[Page 10824]] 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 July 8, 1994, the State of Illinois submitted a SIP revision 
request including Title 92 of the Illinois Administrative Code Part 
600: Employee Commute Options to USEPA in order to satisfy the 
requirements of section 182(d)(1)(B) of the amended Act in the counties 
of Cook, Lake, DuPage, McHenry, Kane and Will and the townships of Aux 
Sable and Gooselake in Grundy County and Oswego in Kendall County, 
Illinois. The USEPA issued a finding of completeness on this submittal 
on July 14, 1994.
    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 establishing an AVO for the entire Chicago severe ozone 
nonattainment area. The AVO was determined to be 1.092 based on the 
most recent census data and was included as part of the Illinois SIP on 
July 8, 1994. Illinois has affirmed that this AVO is representative of 
the AVO at the time of submittal as required by section 182(d)(1)(B).
    The Chicago area AVO was calculated using a methodology that did 
not include transit ridership in the numerator of the AVO calculation, 
resulting in a lower AVO than if transit riders had been included. 
Transit ridership is, however, included in the APO calculation. USEPA 
staff had informed Illinois on November 19, 1992, that USEPA could 
approve a definition of AVO that did not include transit. Final ECO 
guidance was issued on December 17, 1992, that would not allow for this 
type of AVO calculation.
    Illinois' position is that including transit ridership in the AVO 
calculation would require a 25 percent increase above the average 
vehicle occupancy over existing conditions, which already relies very 
heavily on transit ridership, and this would penalize the Chicago area 
for having invested heavily in an extensive public transit 
infrastructure.
    The State points out that the Illinois program has the support of 
affected employers that feel that the Illinois AVO target is 
attainable. It is the State's position that adoption of a transit 
oriented definition, with a much higher target, would be perceived by 
employers as unattainable and would erode their support.
    In a June 10, 1994, letter from Administrator Carol M. Browner to 
Senator Frank R. Lautenberg, USEPA affirmed that ``our continuing 
effort here at EPA is to make the ECO Program work in ways that make 
sense at the local level.'' USEPA believes that Illinois' calculation 
of the AVO baseline without transit ridership reflects local concerns, 
recognizes the already significant investment in local and Federal 
dollars to develop and operate an existing major public transit 
infrastructure, and is approvable because it is consistent with Clean 
Air Act section 182 (d)(1)(B) language that allows for average vehicle 
occupancy rates, ``* * * reflecting existing occupancy rates and the 
availability of high occupancy modes.'' Illinois correctly points out 
that if transit ridership is included in the AVO baseline then cities 
like Chicago will have a much higher target AVO than some other cities 
simply because there is an efficient rail system already in place.
    In light of USEPA's prior indication to Illinois that it could 
approve the AVO calculation, and the agency expressed desire to allow 
flexibility in implementing the ECO program, USEPA proposes to approve 
the AVO calculation.

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. Illinois has 
met this requirement by setting the target APO at 1.36 which is 25 
percent above the AVO of 1.092.

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. In addition, States should develop procedures for notifying 
subject employers regarding the ECO Program requirements.
    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's requirement that initial compliance plans 
convincingly demonstrate compliance will be met. This demonstration can 
have 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.
    Illinois has met these requirements by providing evidence in the 
SIP that Illinois Department of Transportation resources are available 
to implement the first option. Illinois has contracted with several 
consulting firms to administer and monitor the program, to develop a 
training program for employers, and to prepare informational and 
educational materials. [[Page 10825]] 
    Illinois will begin to notify the approximately 5,400 employers in 
the Chicago area with 100 or more employees in three staggered groups. 
Beginning in January 1995, registration packages were to be sent to the 
largest 250 employers representing approximately one third of all 
affected employees. Registration packages will be mailed to the second 
and third groups of employers in April 1995, and July 1995, 
respectively. Registration packages will include a complete guidance 
document, all necessary forms, information regarding training and 
information regarding how to withdraw from the program if the number of 
employees at the worksite falls below 100. Registration, APO surveys, 
and compliance or maintenance plans will be required from employers 30, 
90, and 240 days, respectively, following receipt of the registration 
packet.
    Each affected employer will receive program guidance that explains 
the requirements of the program and provides guidelines for developing 
approvable compliance plans for two phases of the program. In Phase 1--
Start-Up (1994 to 1996) employers have the option of developing initial 
compliance plans using one of 14 start-up packages or the option of 
utilizing the value-added system. In Phase 2--Compliance (1996 to 1998) 
employers that have implemented their initial compliance plan for two 
years, must develop a renewal compliance plan using the value-added 
approach.
Phase 1--Start-Up (1994 to 1996)
    Option A, ECO Start-up packages, allows employers to choose one of 
14 start-up packages, each of which contains a fixed set of support 
measures that must be implemented. The required measures are minimum 
requirements and employers may supplement these packages by 
implementing additional strategies.
    The start-up packages include: (1) Rideshare with Support; (2) 
Ride-share with Guaranteed Ride Home; (3) Rideshare with On-Site 
Amenities; (4) Rideshare with Vanpool Support; (5) Transit with 
Guaranteed Ride Home; (6) Transit with On-Site Transit Pass/Token 
Sales; (7) Transit with Transit Check Participation; (8) Transit with 
Shuttle Service; (9) Bicycle/Walk Program; (10) Telecommuting; (11) 
Compressed Work Week; (12) Parking Cash Out; (13) Transportation 
Allowance; and, (14) Episodic Program. Each of these packages requires 
that a trained employee transportation coordinator be hired by the 
employer to develop and implement the package. USEPA believes that 
initial employer compliance plans that include any of thes start-up 
packages could convincingly demonstrate compliance during the first 
four years of the program.
    Option B, the Value-Added System, would allow employers to develop 
an initial compliance plan that is customized to the worksite. 
Employers would work through a series of steps for building up the 
value of a compliance plan to a level that will ensure compliance by 
selecting from a menu of trip reduction strategies that each has a 
designated vehicle reduction value. These steps include: (1) Work hour 
programs (telecommuting and compressed work week); (2) trip reduction 
support functions for carpool, vanpool, transit, bicycle, and walk 
programs; and (3) use of financial incentives and disincentives. 
Vehicle reduction estimates were developed for each support function 
and financial incentive and disincentive for three APO ranges and three 
transportation environments. These values are applied using a series of 
worksheets to estimate both the singular and additive effects of the 
proposed trip reduction strategies.
Phase 2--Compliance (1996-1998)
    After employers have implemented their initial compliance plan for 
two years, they must develop and implement a renewal compliance plan 
based on the value-added approach that is designed to attain the target 
APO.
    The Illinois Department of Transportation shall within 90 days of a 
plan submittal evaluate the compliance plan. An employer whose 
compliance plan is not approved will be required to submit a revised 
plan within 60 days of notification.
    USEPA proposes to accept the Illinois program as a viable ECO 
Program that will reduce vehicle miles traveled (VMT) in the Chicago 
severe ozone nonattainment area. The June 10, 1994, letter from 
Administrator Carol Browner to Senator Frank R. Lautenberg stresses 
USEPA's commitment to policies that demonstrate ongoing flexibility in 
the ECO Program. USEPA will allow ``states to grant employers credit 
for any measure that reduces employee commute vehicle trips in 
gasoline-fueled vehicles.'' Further, the letter provides that States 
may approve employer plans that include seasonal components if the 
plans will achieve the trip reduction goal as determined by the State.
    USEPA believes approval of the Illinois' episodic Start-up package 
provides full flexibility in establishing a viable, longterm ECO 
Program in Illinois. The Illinois Episodic Start-up package is a 
temporary, seasonal option in a program that phases-in increasingly 
stringent requirements in which employers must achieve the State's trip 
reduction goals four years after the SIP submittal. Employer's may 
implement the episodic start-up package only during the first two years 
of the ECO Program. After which, all employers must switch to the 
value-added approach and be in compliance by July 8, 1998. For these 
reasons the episodic start-up package is being proposed for approval as 
part of Phase 1 of the Illinois ECO Program. During the Phase 1 period 
USEPA expects the episodic start-up package to serve as a demonstration 
project and for the purpose of collecting information on its 
effectiveness. The episodic strategy is not being proposed for approval 
for the period after the first two years of the ECO Program and all 
employers must meet the requirements associated with the value-added 
approach.

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.
    Illinois' ECO SIP has met this requirement by including in its ECO 
legislation substantial penalties for failure to comply with any 
provision of the regulation. A violator may be subject to a fine of up 
to $10,000 and up to $1000 per day for each violation. Violations 
include: (1) Knowingly failing to register or to submit a survey, or a 
compliance plan for an affected worksite; (2) knowingly falsifying or 
misrepresenting information provided in an employer survey or 
compliance plan; (3) failing to make a good faith effort to implement a 
compliance plan. Affected employers who make a good faith effort to 
implement their approved compliance plans, but fail to achieve the 
target APO will not be subject to penalties.

III. Proposed Rulemaking Action and Solicitation of Comments

    The USEPA proposes to approve the ECO SIP revision submitted by the 
State of Illinois. The State of Illinois 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 [[Page 10826]] 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 
than 25 percent above the areawide AVO for all such trips. Employer 
notification was scheduled to begin in January 1995. Registration 
forms, APO surveys, and compliance or maintenance plans will be 
required from employers 30, 90, and 240 days, respectively, following 
receipt of the registration packet. Mailing of renewal notices will 
begin in January 1997.
    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, 
proposing to approve this submittal. Public comments are solicited on 
the requested SIP revision and on USEPA's proposed rulemaking action. 
Comments received by March 30, 1995 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, 
memoran dum from Michael H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (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, Ozone.

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

    Dated: February 10, 1995.

David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 95-4789 Filed 2-27-95; 8:45 am]
BILLING CODE 6560-50-P