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Clean Air Act Approval and Promulgation of Title I, Section 182(d)(1)(B), Employee Commute Options/Employer Trip Reduction Program for Texas Publication: Federal Register Agency: Environmental Protection Agency Byline: Jane N. Saginaw Date: 7 March 1995 Subject: American Government  • The Environment
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[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