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Approval and Promulgation of an Implementation Plan for Vehicle Miles Traveled; Indiana
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[Federal Register: November 2, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IN22-3-6576; FRL-5096-9]
Approval and Promulgation of an Implementation Plan for Vehicle
Miles Traveled; Indiana
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The United States Environmental Protection Agency (USEPA)
proposes to approve a request for a State Implementation Plan (SIP)
revision, addressing the Lake and Porter County ozone nonattainment
area, submitted by the State of Indiana for the purpose of offsetting
any growth in emissions from growth in vehicle miles traveled (VMT) or
number of vehicle trips, and to attain reduction in motor vehicle
emissions, in combination with other emission reduction requirements,
as necessary to comply with Reasonable Further Progress (RFP)
milestones and attainment requirements of the Clean Air Act (Act). The
rationale for this 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
December 2, 1994.
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 documents relevant to this action are available for
inspection during normal business hours at the following location:
Regulation Development Section, Regulation Development Branch (AR-18J),
U.S. Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois, 60604.
Please contact Patricia Morris at (312) 353-8656 before visiting
the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Patricia Morris, Regulation
Development Section, Regulation Development Branch (AR-18J), U.S.
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353-8656.
SUPPLEMENTARY INFORMATION:
I. Background
Section 182(d)(1)(A) of the Act, as amended in 1990 (Act), requires
States containing ozone nonattainment areas classified as ``severe''
pursuant to section 181(a) of the Act to adopt transportation control
measures (TCMs) and transportation control strategies to offset any
growth in emissions from growth in VMT or number of vehicle trips, and
to attain reductions in motor vehicle emissions (in combination with
other emission reduction requirements) as necessary to comply with the
Act's RFP milestones and attainment requirements. The requirements for
establishing a VMT Offset program are discussed in the April 16, 1992,
General Preamble to title I of the Act (57 FR 13498), in addition to
section 182(d)(1)(A) of the Act.
For certain programs required under the Act (including VMT-Offset),
USEPA had earlier adopted a policy pursuant to section 110(k)(4) of the
Act to conditionally approve SIPs that committed to provide the USEPA
with specific enforceable measures by a date certain. That
interpretation was challenged in Natural Resources Defense Council v.
Browner, consolidated lawsuits brought in the United States Court of
Appeals for the District of Columbia Circuit. In a full opinion, dated
May 6, 1994 (and in a March 8, 1994 Order and April 22, 1994 Amended
Order issued earlier), the Court found that USEPA's conditional
approval interpretation exceeded USEPA's statutory authority. While the
Court did not specifically address the VMT Offset program in its orders
or opinions, USEPA believes that the Court's general conclusions that
the USEPA's construction of the conditional approval provision was
unlawful precludes USEPA from taking action to approve any submitted
VMT Offset committal SIPs.
On September 10, 1993, the USEPA published a proposed rule (58 FR
47701) to conditionally approve Indiana's commitment for the VMT-Offset
requirement. In light of the Court opinion, Indiana has withdrawn the
committal SIP in a letter dated July 5, 1994.
In light of the outcome of the litigation, USEPA has decided that
it would be appropriate to interpret the VMT Offset provision of the
Act to account for how States can practicably comply with each of the
provision's elements. The VMT Offset provision requires that States
submit by November 15, 1992, specific enforceable TCMs and strategies
to offset any growth in emissions from growth in VMT or number of
vehicle trips sufficient to allow total area emissions to comply with
the RFP and attainment requirements of the Act.
The USEPA has observed that these three elements (i.e., offsetting
growth in mobile source emissions, attainment of the RFP reduction, and
attainment of the ozone National Ambient Air Quality Standards (NAAQS)
create a timing problem of which Congress was perhaps not fully aware.
As discussed in USEPA's April 16, 1992, General Preamble to title I,
ozone nonattainment areas affected by this provision were not otherwise
required to submit SIPs that show attainment of the 1996 15RFP
milestone until November 15, 1993, and likewise are not required to
demonstrate post-1996 RFP and attainment of the NAAQS until November
15, 1994. The SIP demonstrations due on November 15, 1993, and on
November 15, 1994, are broader in scope than growth in VMT or trips in
that they necessarily address emission trends and control measures for
non motor vehicle emission sources and, in the case of attainment
demonstrations, complex photochemical modeling studies.
The USEPA does not believe that Congress intended the VMT Offset
provision to advance the dates for these broader submissions. Further,
USEPA believes that the November 15, 1992, date would not allow
sufficient time for States to have fully developed specific sets of
measures that would comply with all of the elements of the VMT Offset
requirements of section 182(d)(1)(A) over the long term. Consequently,
USEPA believes it would be appropriate to interpret the Act to provide
the following alternative set of staged deadlines for submittal of
elements of the VMT Offset SIP.
Under this interpretation, the three required elements of section
182(d)(1)(A) are separable, and can be divided into three separate
submissions that could be submitted on different dates. Section 179(a)
of the Act, in establishing how USEPA would be required to apply
mandatory sanctions if a State fails to submit a full SIP also provides
that the sanctions clock starts if a State fails to submit one or more
SIP elements, as determined by the Administrator. The USEPA believes
that this language provides USEPA the authority to determine that the
different elements of a SIP submission are separable. Moreover, given
the continued timing problems addressed above, USEPA believes it is
appropriate to allow States to separate the VMT Offset SIP into three
elements, each to be submitted at different times: (1) The initial
requirement to submit TCMs that offset growth in emissions; (2) the
requirement to comply with the 15aeriodic reduction requirement of
the Act; and (3) the requirement to comply with the post-1996 periodic
reduction and attainment requirements of the Act.
Under this approach, the first element, the emissions offset
element, was due on November 15, 1992. The USEPA believes this element
is not necessarily dependent on the development of the other elements.
The State could submit the emissions growth offset element independent
of an analysis of that element's consistency with the periodic
reduction and attainment requirements of the Act. Emissions trends from
other sources need not be considered to show compliance with this
offset requirement. As submitting this element in isolation does not
implicate the timing problem of advancing deadlines for RFP and
attainment demonstrations, USEPA does not believe it is necessary to
extend the statutory deadline for submittal of the emissions growth
offset element.
The second element, which requires the VMT Offset SIP to comply
with the 15RFP requirement of the Act, was due on November 15, 1993,
which is the same date on which the 15RFP SIP itself was due under
section 182(b)(1) of the Act. The USEPA believes it is reasonable to
extend the deadline for this element to the date on which the entire
15SIP was due, as this allows States to develop the comprehensive
strategy to address the 15reduction requirement and assure that the
TCM elements required under section 182(d)(1)(A) are consistent with
the remainder of the 15 10emonstration. Indeed, USEPA believes that
only upon submittal of the broader 15alan can a State have had the
necessary opportunity to coordinate it's VMT strategy with it's 15
plan.
The third element, which requires the VMT Offset SIP to comply with
the post-1996 RFP and attainment requirements of the Act, will be due
on November 15, 1994, the statutory deadline for those broader
submissions. The USEPA believes it is reasonable to extend the deadline
for this element to the date on which the post-1996 RFP and attainment
SIPs are due for the same reasons it is reasonable to extend the
deadline for the second element. First, it is arguably impossible for a
State to make the showing required by section 182(d)(1)(A) for the
third element until the broader demonstrations have been developed by
the State. Moreover, allowing States to develop the comprehensive
strategy to address post-1996 RFP and attainment by providing a fuller
opportunity to assure that the TCM elements comply with the broader RFP
and attainment demonstrations, will result in a better program for
reducing emissions in the long term.
On November 17, 1993, Indiana submitted to USEPA documentation to
fulfill the first and second elements of the VMT-Offset SIP. A public
hearing was held on December 14, 1993, and documentation on the public
hearing was submitted to complete the SIP revision request. Indiana
does not at this time anticipate the need for additional TCMs to meet
the attainment demonstration requirement but will submit any necessary
TCMs with the attainment demonstration SIP.
Evaluation of the State Submittal
Section 182(d)(1)(A) of the Act requires the State to offset any
growth in emissions from growth in VMT. As discussed in the General
Preamble, the purpose is to prevent a growth in motor vehicle emissions
from canceling out the emission reduction benefits of the federally
mandated programs in the Act. The USEPA interprets this provision to
require that sufficient measures be adopted so that projected motor
vehicle volatile organic compound (VOC) emissions will never be higher
during the ozone season in one year than during the ozone season in the
year before. When growth in VMT and vehicle trips would otherwise cause
a motor vehicle emissions upturn, this upturn must be prevented. The
emissions level at the point of upturn becomes a ceiling on motor
vehicle emissions. This requirement applies to projected emissions in
the years between the submission of the SIP revision and the attainment
deadline and is above and beyond the separate requirements for the RFP
and the attainment demonstrations. The ceiling level is defined
therefore, up to the point of upturn, as motor vehicle emissions that
would occur in the ozone season of that year, with VMT growth, if all
measures for that area in that year were implemented as required by the
Act. When this curve begins to turn up due to growth in VMT or vehicle
trips, the ceiling becomes a fixed value. The ceiling line would
include the effects of Federal measures such as new motor vehicle
standards, phase II RVP controls, and reformulated gasoline, as well as
the Act mandated SIP requirements.
The State of Indiana has demonstrated in its submittal of November
17, 1993, that the predicted growth in VMT in Lake and Porter Counties,
Indiana, is not expected to result in a growth in motor vehicle
emissions that will negate the effects of the reductions mandated by
the Act. Further, Indiana has projected motor vehicle emissions to the
year 2007 and, using the most current socioeconomic data, has not
predicted an upturn in motor vehicle emissions. In the event that the
projected socioeconomic data and associated VMT grow more rapidly than
currently predicted, Indiana is required by section 182(c)(5) to track
actual VMT starting with 1996 and every three years there after to
demonstrate that the actual VMT is equal to or less than the projected
VMT. TCMs will be required to offset VMT that is above the projected
levels (section 182(c)(5)).
The VMT offset submittal from Indiana dated November 17, 1993,
contains the final report ``TCMs to Offset Emissions from VMT Growth in
Northwestern Indiana.'' The report used the most current socioeconomic
data and the travel network model in conjunction with the MOBILE5a to
estimate mobile source emissions to the attainment year of 2007.
This report also documents the progress Indiana has made in
evaluating TCMs to reduce growth in VMT and thus reduce emissions.
Indiana may choose to take credit for TCM emission reductions as part
of the post 1996 RFP requirement or to meet the attainment requirement.
Not only has Indiana evaluated the effectiveness and predicted impact
of a number of TCMs but actual implementation of selected TCMs has been
ongoing. For example, a new inter city bus route to link the cities of
Hammond, East Chicago and Gary, Indiana has been started. These three
cities have operated established intra city bus routes for many years
and this is the first route to link the already existing transit
services for these cities.
These specific TCMs however, are not a part of the current SIP
revision request and are not a required portion of this SIP revision.
Thus, Indiana is not currently taking credit for the emission
reductions from these TCM measures and the State is not bound to
implement or continue to implement any specific TCMs. These measures,
however, illustrate Indiana's work in evaluating and implementing TCMs
to meet the requirements of the Act. Also, the TCMs may be used in
subsequent SIP submittals as necessary to meet the post 1996 RFP
requirement or the attainment requirement.
Additionally, Indiana is implementing TCMs to complement the
employee commute options (ECO) program which requires a 25 percent
reduction in single occupancy vehicle usage for home to work trips for
employers of 100 or more persons. Activities include: Planning and
promotion, new bus routes, improved transit service, and carpooling
match-up services. A number of TCMs have been implemented in Lake and
Porter Counties through use of the Department of Transportation's
congestion mitigation and air quality funds under the Intermodal
Surface Transportation Efficiency Act. These projects have included:
purchasing clean fueled buses, operation of new bus service, improved
transit service and ECO activities. In conclusion, Indiana is
evaluating and implementing TCMs as expeditiously as possible even when
the emissions projections indicate that mobile source emissions will
continue to decline without additional TCMs.
Indiana submitted a 15 percent RFP SIP for northwest Indiana to the
USEPA in November 1993, but the submittal was found incomplete in a
letter dated January 25, 1994. The RFP SIP lacked enforceable
regulations and a public hearing. The public hearing was held on March
29, 1994. Although the RFP SIP is still incomplete due to the lack of
enforceable regulations. Indiana's submittal does indicate that TCM's
would not be necessary to attain the 15reduction required by 1996.
The RFP SIP asserts that a 15reduction in emissions could be achieved
by 1996 through the feasible measures detailed in the SIP submittal.
Under the approach contained in the submittal, the State would achieve
the 15reduction in VOCs through measures other than relying on TCMs.
The majority of the reduction would be obtained from stationary source
shut downs. Other measures include enhanced vehicle inspection and
maintenance and reformulated gasoline. For the attainment demonstration
which is due November 14, 1994, Indiana has indicated that it will
include TCMs as necessary to reach attainment.
Summary of Findings
In the requested SIP revision submittal, Indiana has projected
motor vehicle emissions until the statutory attainment year of 2007
using the most recent population and economic growth projections. These
projections went through public hearing and comment on December 14,
1993. Using current VMT forecasts, these projections show that motor
vehicle emissions are not expected to rise above the ceiling level
through the year 2007.
In addition, Indiana has identified and evaluated a number of
specific TCMs to reduce single occupancy vehicle usage. Several of
these identified TCMs are currently being implemented. The VMT offset
submittal from Indiana dated November 17, 1993, contains the final
report ``TCMs to Offset Emissions from VMT Growth in Northwestern
Indiana.'' This report documents the progress Indiana has made in
evaluating TCMs to reduce growth in VMT and thus reduce emissions.
Indiana has evaluated the effectiveness and predicted impact of a
number of TCMs through actual implementation of selected TCMs, although
these TCMs are not a part of the SIP revision and Indiana is not taking
emission reduction credit for these TCMs.
Indiana has met the first and second requirements of the VMT offset
plan. Indiana has identified and evaluated TCMs to reduce VMT.
Regarding the first requirement, Indiana has demonstrated in the
November 17, 1993, submittal that projected growth in VMT is not
expected to result in an increase in emissions from motor vehicles and
is not expected to negate the progress in emissions reductions required
to meet attainment of the standard by 2007. Regarding the second
element, Indiana listed in its incomplete 15RFP submittal feasible
measures intended to meet the 15reduction by 1996 without relying on
TCMs and has shown that further TCMs are not necessary to meet the
second element of section 182(d)(1)(A). The third requirement is for
Indiana to use TCMs as necessary to meet the attainment of the
standard. This third requirement will be submitted with the attainment
demonstration SIP and will be addressed in future proposed and final
rules.
III. Proposed Rulemaking Action and Solicitation of Comments
Based on the submittal accompanying the State's SIP revision
request, USEPA proposes to approve the SIP revision submitted by the
State of Indiana as satisfying the first two of the three VMT offset
plan requirements. Public comments are solicited on the requested SIP
revision and on USEPA's proposed rulemaking action. Comments received
by December 2, 1994, 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,
memorandum from Michael H. Shapiro, Acting Assistant Administrator for
Air and Radiation. The Office of Management and Budget 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 SIP. Each request for revision to any SIP 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 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.
See 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: September 30, 1994.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 94-27174 Filed 11-1-94; 8:45 am]
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