[Federal Register Volume 60, Number 44 (Tuesday, March 7, 1995)]
[Rules and Regulations]
[Pages 12442-12446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5439]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[TX-21-1-6634; FRL-5134-6]


Clean Air Act Approval and Promulgation of Title I, Section 
182(d)(1)(B), Employee Commute Options/Employer Trip Reduction Program 
for Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, the EPA is approving the State Implementation 
Plan (SIP) revision submitted by the State of Texas for the purpose of 
establishing an Employee Commute Options (ECO) program (also known as 
the Employer Trip Reduction (ETR) program). Pursuant to Section 
182(d)(1)(B) of the Clean Air Act (CAA), as amended in 1990, the SIP 
was submitted by Texas to satisfy the statutory mandate that an ETR 
Program be established for employers with 100 or more employees, such 
that compliance plans developed by such employers are designed to 
convincingly demonstrate an increase in the average passenger occupancy 
(APO) of 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.

EFFECTIVE DATE: This action will be effective on April 6, 1995.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
following locations. The interested persons wanting to examine these 
documents should make an appointment with the appropriate office at 
least 24 hours before the visiting day.

U.S. Environmental Protection Agency, Region 6, Air Programs Branch 
(6T-A), 1445 Ross Avenue, Dallas, Texas 75202-2733.
The Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, 401 M Street, SW., Washington, DC 20460.
Texas Natural Resource Conservation Commission, 12124 Park 35 Circle, 
Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Hal D. Brown, Planning Section 
(6T-AP), Air Programs Branch, USEPA Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202-2733, telephone (214) 665-7248.

SUPPLEMENTARY INFORMATION:

I. Background

    Implementation of the provisions of the CAA will require employers 
with 100 or more employees in the Houston-Galveston ozone nonattainment 
area to participate in a trip reduction program. Section 182(d)(1)(B) 
requires that employers submit ETR compliance plans to the State two 
years after the SIP is submitted to the EPA. These compliance plans 
must ``convincingly demonstrate'' that within four years after the SIP 
is submitted, the employer will achieve an increase in the APO of its 
employees who commute to work during the peak period by not less than 
25 percent above the AVO of the nonattainment area. 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.
    For an approvable ETR SIP, the State submittal must contain each of 
the following 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 ETR program 
that includes a process for compliance demonstration; and, (4) 
enforcement procedures to ensure submission and implementation of 
compliance plans by subject employers. The EPA issued guidance on 
December 17, 1992, interpreting various aspects of the statutory 
requirements [Employee Commute Options Guidance, December 1992].
    On November 13, 1992, the EPA received from the Governor of Texas a 
SIP revision to incorporate the ETR regulation which was adopted by the 
State on October 16, 1992. On October 18, 1993, the EPA proposed 
approval of the Texas ETR SIP in the Federal Register (FR) because it 
meets the requirements of section 182(d)(1)(B) of the CAA and the 
criteria listed above (see 58 FR 53693). The proposed rulemaking action 
provides a detailed discussion of the EPA's rationale for proposing 
approval of the State's ETR SIP, and should be referred to. The EPA 
requested public comments on all aspects of the proposal. A summary of 
the comments received and the EPA's response to them are provided 
below. A more detailed response to comments is available from the EPA 
Region 6 office.

II. Response to Comments

    The EPA received three comment letters, one from the State of Texas 
which supported the EPA's action, one from a local citizen which raised 
concerns with the Texas program, and one from a local environmental 
group which objected to EPA's proposed approval.
    Comment 1--The Texas Natural Resource Conservation Commission 
(TNRCC) supported the EPA's proposed approval of the Texas ETR SIP. In 
addition, the State pointed out a correction to our notice. On page 
53695, part D under ``Enforcement Procedures,'' the EPA states that 
violators may be subject to up to $10,000 in administrative penalties 
and up to $25,000 in civil penalties. The State commented that this 
provision should instead read, ``may subject the violator up to $10,000 
in administrative penalties or up to $25,000 in civil penalties per 
violation.''
    EPA Response--The EPA agrees with the State's comment. Violators 
may be subject to either administrative or civil penalties for a given 
violation. The penalty provisions of the Texas program are approvable.
    Comment 2--A local citizen and the environmental group commented 
that the emphasis of the ETR program should be on reducing work-related 
trips. In addition, the environmental group commented that it would be 
illegal to also emphasize reductions in vehicle miles travelled (VMT).
    EPA Response--The EPA agrees that the intent of the section 
182(d)(1)(B) of the CAA is to reduce work-related commute trips. We 
feel that Texas' program will accomplish this goal. The ETR regulation 
subjects employers to a [[Page 12443]] violation for not achieving the 
target APO. The SIP clearly provides for sufficient penalties to deter 
non-compliance. In addition to this ``penalty-based'' approach, the 
State regulation also requires employers to sufficiently plan to ensure 
that they meet their target APO. Employers are required to register 
with the State, submit ETR compliance plans, implement their plan, and 
monitor their progress towards meeting their target APO.
    The EPA disagrees that it would be illegal to also emphasize 
reductions in VMT. Section 182(d)(1)(B) of the CAA states that States 
``shall submit a revision requiring employers in such area to implement 
programs to reduce work-related vehicle trips and miles traveled by 
employees.'' It is clear that the intent of this provision is to 
accomplish a reduction in both trips and VMT associated with commuting. 
Therefore, we do not believe it would be illegal to incorporate 
reductions in VMT as part of the ETR program, as long as other 
provisions of section 182(d)(1)(B) are met. While Texas currently does 
not include VMT considerations in its ETR program, the EPA believes 
that the State is not precluded from subsequently revising its ETR rule 
to allow for VMT considerations.
    Comment 3--One local citizen and the environmental group objected 
to ETR trading or banking.
    EPA Response--The current State ETR regulation does not allow for 
ETR trading although the EPA's Employee Commute Options Guidance, 
issued in December 1992, does allow employers in the same nonattainment 
area to aggregate APO credits through averaging, banking and trading 
(see page 16 of that guidance). We understand that the State may 
consider establishing a trading program, which would require a 
subsequent SIP revision.
    The current State ETR rule does allow companies to bank ETR credits 
for only one year. As explained in the EPA's ECO Guidance (see page 
19), the EPA believes that in terms of public health benefits, early 
reductions achieved through banking of APO credits offset later 
application of banked credits because as the fleet turns over and 
cleaner fuels are employed, each vehicle trip generates less emissions. 
The TNRCC restricts the use of banked credits to one year. The EPA 
believes that the use of the banked APO credits complies with the 
intent of the statute and will not materially affect attainment by the 
required date of 2007.
    Comment 4--The environmental group commented that the term 
``regular basis'' must be defined in the definition of ``carpool,'' 
otherwise a loophole will be created.
    EPA Response--The EPA disagrees with this comment. The term 
``carpool'' is defined in the SIP narrative to help clarify what types 
of trip reduction measures may be effective in achieving compliance 
with the target APO. The ETR regulation, however, does not define the 
term ``carpool.'' The EPA does not believe that a loophole will be 
created by not defining ``regular basis'' in the definition of 
``carpool'' in the SIP. Compliance with the target APO is not 
determined by the use of carpools, but rather through specific 
calculations of actual occupancy based on travel commute data collected 
through the employee surveys.
    Comment 5--The environmental group commented that it is their 
understanding that the definition of employer would not allow different 
companies located at one common location to submit one ETR plan. 
Instead, each company would have to submit its own ETR plan.
    EPA Response--The EPA agrees with this comment, and believes that 
the State regulation is unambiguous in requiring different companies 
that occupy a common worksite to submit individual company plans.
    Comment 6--The environmental group commented that they believe 
motorcycles should be included in the definition of ``single occupancy 
vehicle'' (SOV).
    EPA Response--The EPA agrees but believes that the SIP narrative is 
unambiguous in including motorcycles as part of the definition for a 
SOV.
    Comment 7--The environmental group commented that the amount of 
credit given for alternative trip reduction strategies (e.g., 
alternative fuels) must be included in the ETR SIP. Currently, the SIP 
states that such credit will be calculated in accordance with 
procedures and formulas provided by the TNRCC.
    EPA Response--It is our understanding that the State will not grant 
credit for alternative trip reduction strategies unless and until the 
protocols for granting such credit are adopted into the regulation. In 
addition, the EPA will need to approve any credit for alternative trip 
reduction strategies as part of the SIP. We understand that the State 
plans to revise the ETR SIP through the full rulemaking process, to 
incorporate appropriate credit for various alternative trip reduction 
strategies.
    Comment 8--The environmental group asked for clarification of the 
term ``common control'' as used in the definition for ``worksite.''
    EPA Response--In the definition of ``worksite,'' the State makes 
clear that the term ``common control'' is further defined under the 
definition of ``employer.'' We believe that the definition found under 
``employer,'' is consistent with the EPA's guidance and is sufficiently 
clear as to what types of organizations are intended.
    Comment 9--The environmental group objected to the use of two 
target APOs for the rural and urbanized areas. The group argued that 
all employers in the nonattainment area should be required to meet a 
1.46 target APO, rather than giving those in outlying areas ``a 
break.''
    EPA Response--Section 182(d)(1)(B) of the CAA states that, ``The 
guidance of the Administrator may specify average vehicle occupancy 
rates which vary for locations within a nonattainment area (suburban, 
center city, business district) or among nonattainment areas reflecting 
existing occupancy rates and the availability of high occupancy 
modes.'' The EPA believes that Congress intended to provide States with 
the flexibility to set different target APOs in a nonattainment area 
based on varying existing occupancy rates and the availability of 
alternative transportation modes.
    In addition, as articulated in the EPA's ECO guidance (see page 
16), the statutory phrase ``commuting trips between home and the 
workplace'' can be interpreted to refer to the trips by any employees 
in the area rather than only the employees of a specific employer. 
Although the rural areas are required to meet a target that is less 
than 25 percent above the AVO, the urbanized areas are required to meet 
a target greater than 25 percent above the AVO. Therefore, across the 
entire nonattainment area, the State of Texas is complying with the 25 
percent increase requirement. The EPA's guidance explicitly allows for 
averaging and trading between employers such that an employer who did 
not achieve the target APO may still be in compliance if it obtains 
sufficient credit from another employer who exceeded the target. The 
TNRCC's two target area program is an institutionalized form of 
averaging between employers.
    Comment 10--The environmental group argued that there was not 
adequate public participation in the development of the ETR regulation.
    EPA Response--Section 110(a)(2) of the CAA provides that each 
implementation plan submitted by a State must be adopted after 
reasonable [[Page 12444]] notice and public hearing.1 Section 
110(l) of the CAA similarly provides that each revision to an 
implementation plan submitted by a State under the CAA must be adopted 
by such State after reasonable notice and public hearing. 40 CFR 51.102 
defines adequate public notice and comment to include: (1) Public 
notification of the proposed SIP revision in a major newspaper in the 
affected area; (2) a comment period of at least 30 days; (3) public 
hearing; and (4) State analysis and response to the public comments. 
The TNRCC met these requirements. Public notice on the proposed ETR 
regulation was published in the Houston ozone nonattainment area on May 
30, 1992, in the Houston Chronicle, and on May 31, 1992, in the Baytown 
Sun, in accordance with the State of Texas's public notice 
requirements. Public notice was also published in the Texas Register on 
June 5, 1992 (see 17 Texas Register (TexReg) 4067). The State held a 
public hearing on the proposed regulations on June 30, 1992, and the 
comment period closed on July 8, 1992. Following the public hearing, 
the ETR regulation was adopted by the State on October 16, 1992. The 
publication of the final ETR regulation in the Texas Register on 
November 27, 1992 (see 17 TexReg 8297), includes an extensive analysis 
by the State of the comments received during the public comment period 
and the State's recommended action. The EPA therefore disagrees with 
this comment.

    \1\Also Section 172(c)(7) of the CAA requires that plan 
provisions for nonattainment areas meet the applicable provisions of 
Section 110(a)(2).
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    Comment 11--This environmental group argued that the term 
``approvable ETR Plans'' is not defined, and recommended that the 
phrase ``plans that meet all ETR plan requirements under the CAAA,'' be 
used instead. The group also stated that the term ``convincingly 
demonstrate'' must be defined.
    EPA Response--The term ``approvable ETR plans'' is clarified on 
page 28 of the SIP narrative, which states that the TNRCC ``will review 
ETR plans based on completeness and accuracy of information 
requested.'' We do not believe that the phrase ``plans that meet all 
ETR plan requirements under the CAAA'' provides any additional 
clarification because the CAA only requires that plans ``convincingly 
demonstrate'' prospective compliance. As to a definition of 
``convincingly demonstrate,'' as described in more detail in our 
proposed approval of the Texas ETR SIP (see 58 FR 53694), the EPA 
provided four options for States to meet the requirement that plans 
``convincingly demonstrate'' prospective compliance. The TNRCC met this 
requirement by selecting our fourth option by imposing significant 
penalties for not meeting the target APO.
    Comment 12--The environmental group challenged the adequacy of the 
tracking and auditing procedures, and the current implementation of the 
SIP.
    EPA Response--The EPA disagrees that the tracking and auditing 
procedures contained in the SIP are inadequate. Even though the EPA's 
ECO guidance did not require specific tracking and auditing procedures, 
the State's ETR SIP narrative and regulation address these provisions. 
The SIP and the regulation specify numerous recordkeeping and reporting 
requirements for affected employers. For example, Sec. 114.21(g) of the 
regulation requires employers to maintain complete and accurate records 
for at least two years, and details seven types of information which 
must be included as part of those records. Section 114.21(h) details 
the specific reports that employers must submit to the TNRCC. Section 
8.c. of the SIP specifies the State's ETR quality assurance procedures, 
which include auditing of employee surveys, announced and unannounced 
site visits, and auditing of the required employer records. We believe 
the TNRCC's procedures included in the SIP are fully adequate to ensure 
proper implementation of the ETR program.
    As to the commenter's concerns about current implementation of the 
SIP, we do not believe that the TNRCC has fallen short of its 
responsibility to implement the SIP. During 1994, the TNRCC has 
increased the ETR staff, both in its headquarters office in Austin, and 
in its Regional office in Houston. The TNRCC has implemented the 
registration of affected employers, initiated training programs, and 
developed the necessary forms and systems to implement the ETR employer 
plans. The EPA believes that Texas's implementation of the ETR program 
to date does not indicate that the EPA should hesitate to approve the 
program.
    Comment 13--The environmental group argued that allowing employers 
to demonstrate compliance with the target APO up to two years after the 
date of their plan submission deadline gave the employers too much 
time.
    EPA Response--The EPA disagrees since the TNRCC regulation is fully 
consistent with the time frames specified in section 182(d)(1)(B) of 
the CAA, which requires that employer plans convincingly demonstrate 
compliance within two years of plan submittal.
    Comment 14--The environmental group argued that records should by 
kept by affected employers for five years, rather than only two years.
    EPA Response--This comment was also provided to the TNRCC during 
the State's public comment period. In response, the TNRCC stated that 
they believed two years of information appears to be adequate to assess 
compliance with the ETR requirements. The EPA agrees with the State 
because the primary driving force behind compliance with the target APO 
in Texas's program is the fact that substantial financial penalties may 
be imposed on an employer for not meeting the target APO.
    Comment 15--The environmental group commented that the SIP 
narrative should state that ``falsifying or failing to maintain 
appropriate records will be considered a violation of [TNRCC] 
Regulation IV,'' rather than ``may be.''
    EPA Response--This comment was submitted to the State during its 
public comment period. The State responded that it is understood that 
falsifying and failing to maintain required records are considered to 
be violations of the regulation. The EPA agrees with the State since 
section 114.21(g) of the ETR regulation clearly establishes mandatory 
requirements for all employers to maintain complete and accurate 
records for at least two years. In considering whether to issue a 
notice of violation for falsifying or failing to maintain records, the 
State looks at all facts and evaluates any possible mitigating 
circumstances before committing State resources to take an enforcement 
action. Therefore, the language contained in the SIP narrative is 
consistent with the State's enforcement discretion over when it is 
appropriate for the State to commit resources to initiate an 
enforcement action.
    Comment 16--This environmental group argued that the SIP should not 
be approved because it does not detail the specific quality assurance 
procedures that will be carried out by the State. The group also 
commented that the SIP should state that audits will be conducted and 
site visits will be conducted, rather than ``may be.''
    EPA Response--Please see our response to comments 12 and 15 above 
with respect to quality assurance and enforcement discretion.
    Comment 17--The environmental group argued that the certification 
of training programs procedures and the public information program must 
be specified in the SIP. Also, the group asked that ``comprehensive 
training course'' be defined and that the training should include a 
discussion of the [[Page 12445]] health, welfare effects, and costs due 
to air pollution.
    EPA Response--While the EPA agrees that these items would be 
beneficial to include in the SIP, we do not believe that the integrity 
of the ETR program is threatened by not including these items since the 
TNRCC ETR SIP fully meets the requirements of the CAA.
    Comment 18--The environmental group argued that the SIP narrative 
should read, ``failure to attain the appropriate target APO will be 
considered violations of [TNRCC] Regulation IV,'' rather than ``may 
be.''
    EPA Response--Similar to our response to comment 15, we believe 
that section 114.21(j)(4) of the State's ETR regulation clearly 
establishes mandatory requirements for all employers to achieve final 
compliance with the target APO no later than two years after the 
applicable ETR plan submission deadline. It is therefore understood 
that not complying with this requirement would be considered to be a 
violation of the regulation. In considering whether to issue a notice 
of violation for not achieving the target, however, the State looks at 
all facts and evaluates any possible mitigating circumstances before 
committing State resources to take an enforcement action. Therefore, 
the language contained in the SIP narrative is consistent with the 
State's enforcement discretion over when it is appropriate for the 
State to commit resources to initiate an enforcement action.
    Comment 19--This environmental group objected to the provision in 
the SIP narrative that ``[i]n formulating an enforcement policy, the 
[TNRCC] may consider any good faith effort made by the employer to 
achieve compliance.''
    EPA Response--An enforcement policy is developed to cover the 
implementation and enforcement of a rule, not just the enforcement of a 
particular case. The policy would discuss the appropriate enforcement 
response that the State would take at each level of violation and might 
also discuss what and how much penalty, if any, to assess. Any 
enforcement policy of this type may always consider the good faith 
efforts made to comply. In addition, as discussed above, in considering 
whether to issue a notice of violation for not achieving the target, 
the State looks at all facts and evaluates any possible mitigating 
circumstances before committing State resources to take an enforcement 
action. For these reasons, we believe the language contained in the SIP 
narrative, is consistent with the State's enforcement discretion over 
when it is appropriate for the State to commit resources to initiate an 
enforcement action.
    Comment 20--This environmental group commented that the methodology 
to estimate the emission reductions from the ETR program should be 
included in the SIP.
    EPA Response--The EPA disagrees that the emission reduction 
estimates must be included in this SIP submittal. The estimates need to 
be included only to the extent that the State takes credit for the 
reductions to meet a Reasonable Further Progress or attainment 
demonstration requirement. In that case, the emissions estimates would 
need to be included in that SIP submittal.

III. Final Action

    In this action, the EPA is approving the ETR SIP revision adopted 
by the State of Texas on October 16, 1992, and submitted to the EPA on 
November 13, 1992. The State of Texas has submitted a SIP revision 
implementing each of the ETR program elements required by section 
182(d)(1)(B) of the CAA.
    On February 23, 1994, the TNRCC adopted revisions to the ETR 
regulation, revising the compliance deadlines for affected employers to 
submit the ETR plans and comply with the target APO. These revisions 
were submitted to the EPA on March 9, 1994.
    In this FR document, the EPA is approving only the ETR SIP revision 
which was submitted by the State of Texas on November 13, 1992. The EPA 
will act upon the subsequent ETR SIP revision submitted by the State on 
March 9, 1994, in a separate rulemaking action in the near future.
    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 the SIP shall be 
considered separately in light of specific technical, economical, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

Regulatory Process

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA 
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, the EPA 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 
CAA 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 CAA, 
preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
CAA forbids the EPA 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)). The Office of Management and Budget has exempted 
this action from review under Executive Order 12866.
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the U.S. Court of Appeals for the 
appropriate circuit by May 8, 1995. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Ozone.

    Dated: December 23, 1994.
Jane N. Saginaw,
Regional Administrator.

    40 CFR part 52 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 SS--Texas

    2. Section 52.2270 is amended by adding paragraph (c)(91) to read 
as follows:


Sec. 52.2270  Identification of plan.

* * * * *
    (c) *  *  *
    (91) Revisions to the TNRCC Regulation IV, concerning the Employer 
Trip Reduction program, were submitted by the Governor on November 13, 
1992.
    (i) Incorporation by reference. [[Page 12446]] 
    (A) Revisions to the TNRCC Regulation IV (31 TAC Sec. 114.21, 
Employer Trip Reduction Program), as adopted by the TACB on October 16, 
1992.
    (B) TACB Order 92-14 as adopted on October 16, 1992.
    (C) SIP narrative entitled, ``Employer Trip Reduction Program, 
Houston-Galveston Area,'' adopted by the TACB on October 16, 1992, 
pages 31-38, addressing: 8.c. Quality Assurance Measures; 9. Training 
and Information Assistance; 11. Enforcement; and 12. Notification of 
Employers.
    (ii) Additional material.
    (A) SIP narrative entitled, ``Employer Trip Reduction Program, 
Houston-Galveston Area,'' adopted by the TACB on October 16, 1992.
    (B) The TACB certification letter dated November 10, 1992, signed 
by William R. Campbell, Executive Director, TACB.

[FR Doc. 95-5439 Filed 3-6-95; 8:45 am]
BILLING CODE 6560-50-P