This document was prepared by a subgroup of members of the Base Programs Analyses and Policies Work Group as part of the Federal Advisory Committee Act (FACA) Subcommittee process. It is not an EPA document. It is subject to work group discussion. Interested people should forward their comments to a member of the Base Programs Analyses and Policies Work Group or to the contact person shown below.

Contact: Richard Chastain 205/257-6664

Date: May 9, 1997

TREATMENT OF AREAS IN WHICH AIR QUALITY TRENDS INDICATE THE RISK OF BECOMING AN AREA OF VIOLATION (AOV).

Background

For purposes of designating air quality with respect to criteria pollutants, the Clean Air Act divides the country into attainment, nonattainment, and unclassifiable areas. Attainment and unclassifiable areas have very minimal requirements under the Act, regardless of how close they may be to nonattainment status. Once an area slips into nonattainment, however, it carries the stigma associated with that designation and is subject to difficult, and in many cases unpopular, requirements for planning and implementing a control strategy to attain the National Ambient Air Quality Standard (NAAQS). Among other elements, the plan must address emissions from existing sources and include more prescriptive control technology requirements and emission offsets for any new sources.

The premise of this issue paper is that it is preferable for areas that are not violating a standard, but are in danger of doing so, to act affirmatively to avoid further deterioration in air quality that would result in designation as a nonattainment area or area of violation (AOV). Actions taken to avoid nonattainment -- such as "ozone action days" on which drivers and businesses voluntarily take actions to reduce their ozone precursor emissions-- may be more cost-effective than the prescriptive measures associated with nonattainment. In addition, they tend to educate the public about its role in contributing to air pollution and the role that individuals can play in reducing it, concepts that become increasingly important for the public to accept as standards become more stringent. Moreover, not permitting air quality to degenerate to the point that a violation of the standard occurs is obviously desirable from a public health perspective. It may also be appropriate for such areas to begin acquiring data and performing studies that could later be necessary for compliance planning. This paper considers whether current incentives to act are sufficient or whether there should be a more formalized policy to encourage or require such actions.

While there is general agreement within the Work Group that it is desirable to identify areas that are at risk of violating a NAAQS and to seek to avoid such violations, the Work Group has not reached agreement on how this should be done and, most importantly, whether efforts to identify and address such areas should be voluntary or mandatory. A wide spectrum of approaches to identifying and acting on areas at risk could be considered, but for purposes of this paper a limited set of representative options will be discussed. These will be divided into the broad categories of voluntary and mandatory with two options identified for each. (It should be noted that traditionally all such efforts have been voluntary and that prior to adoption of any mandatory program, the legal authority for such a program would have to be explored.)

It should also be noted that this issue paper is addressing an area that is presently in attainment but that is experiencing a trend of deteriorating air quality. Identifying such a trend when using actual data will generally be confounded by the year-to-year fluctuations in monitored air quality that result from short-term variations in meteorology. Such meteorological variations have previously been identified as possibly causing areas to flip between attainment and nonattainment and statistical techniques have been discussed to address this problem. Similar approaches could also be useful in better understanding emission trends when identifying areas at risk of violating a standard, but these are beyond the scope of this paper.

Voluntary Approaches

Voluntary approaches would have the advantage of imposing no new regulatory requirements and giving the state or other appropriate body maximum flexibility to select methods for determining which areas may be in danger of violating the standards and for selecting the appropriate response in such areas. It is therefore suited to a variety of regulatory institutional structures and permits tailoring a response to the particular situation. The primary disadvantage of a voluntary approach is that it may not be pursued effectively. If air quality then continues to deteriorate, the area may eventually be saddled with the public health and economic consequences of violating the standard.

Option 1a - No New Programs

While this option would not involve initiating any new programs, it does not mean that the issue would be ignored. Some states and areas have already recognized that they were close to the line of ozone nonattainment and taken proactive steps such as instituting "ozone action days" and other measures. Under this option there would be freedom for such actions to be taken unilaterally or through ad hoc agreements with EPA. EPA has demonstrated a willingness to work with areas that take the initiative to avoid or minimize violations and has the flexibility to reach agreements that can be carefully tailored to each particular circumstance and include benefits for acting early. (Attachments A and B are agreements that EPA has with Kootenai County, Idaho and Corpus Christi, Texas that represent two examples.) With the current increase in awareness of air quality issues and the problems of nonattainment, it is likely that more areas will take advantage of existing opportunities to avoid violations.

It should also be noted that, while the most obvious incentive to be proactive is for the area which would become an AOV, nearby areas that could fall within the associated AOI would have an incentive to work with the potential AOV to avoid the disadvantages that would come with being in an AOI.

Option 1b. - Initiate Programs to Encourage and Guide Voluntary Efforts

Within the framework of a voluntary approach, EPA could take actions to encourage and assist States to identify and develop programs for areas that are believed to be tending toward air quality that violates a standard. For example, EPA could provide guidance to States and other planning bodies on available approaches for tracking air quality trends and assessing whether an area is sufficiently close to a standard violation to warrant development of a remedial program. EPA could also develop and provide information to states on air quality trends, although the states or other planning bodies would be left discretion about how to respond to this information.

Finally, EPA could provide States with incentives for adopting programs in areas that are determined to be at risk of violating a standard. For example, EPA could indicate that if the State or other planning body will pursue voluntary emission reduction measures in conjunction with an effort to develop appropriate data on emissions and speculation, then EPA would allow some flexibility in timing and/or control requirements in the event the standard is subsequently exceeded. Some elements of the agreements EPA has with Kootenai County, Idaho and Corpus Christi, Texas (Attachments A and B) could be considered for use in such an incentive program. It has also been suggested that other examples of possible incentives may be found in some maintenance plans.

Mandatory Approaches

A mandatory program would provide EPA with greater authority in areas with deteriorating air quality. It would prevent States and local planning bodies from ignoring or placing a low priority on areas in which air quality is deteriorating. It might be better suited to address deteriorating air quality resulting from emissions outside the local jurisdiction because it would not depend on the cooperation of the source areas.

On the other hand, a mandatory program would bring greater federal involvement in air quality management, traditionally primarily a State responsibility. In addition, a mandatory program would likely be limited in its flexibility for addressing differing problems. Finally, a mandatory program could subject an area with declining air quality to the very types of mandatory control requirements and stigma associated with nonattainment.

Option 2a. - Partial Mandatory Program

Various approaches could be envisioned which would have some mandatory features and thus ensure that areas do not ignore warning signs, while recognizing that the area was still in attainment with the applicable standards. This could, for example, involve requiring an area that met specified "at risk" criteria to compile more complete inventory information and develop a "contingency plan" that could be quickly implemented if the area did become an AOV (or AOI). Immediate control actions would not be required but areas might find it prudent to institute some steps voluntarily.

Option 2b. - Fully Mandatory Program

A fully mandatory program would have precise, federally established procedures for determining when an area was at risk of becoming an AOV, would have a procedure for identifying the potential AOI, and would require that specific control measures be implemented within such areas to avoid reaching the violation level. Although the requirements may be somewhat less than if a violation occurred, this could be viewed as effectively reducing the level of the ambient standard.

Relation To Other Issue Papers

The concepts discussed in this issue paper intersect with several of the other issue papers. For example, a discretionary program would overlap with the rewards and sanctions paper. In addition, some of the concepts in this paper relate to the issue of "safe harbors." Furthermore, if the concepts of AOVs and AOIs are pursued, it will be necessary to consider what planning body or bodies should be responsible for implementing any program for areas tending towards nonattainment. Other papers that have some overlapping considerations are Economic Incentives, Contingencies, and Classifications. It is not believed that any of those papers involve considerations that are outside of the range presented here.

Conclusions

A review of this paper by the Base Programs Analyses and Policies Work Group and a preliminary presentation to the full subcommittee showed that there was widespread agreement that areas should look for signs that they may be approaching nonattainment and, if so, should at least institute additional data collection and planning measures. A sharp difference of opinion was found, however, about whether this should be within a voluntary or a mandatory context. Most members favored a voluntary approach, possibly involving some guidance and incentives from EPA. The environmental community members, however, strongly favored mandating specific measures in areas at risk and opposed a dependence on incentives.

ATTACHMENT A

Summary of Kootenai County Memorandum of Understanding

In 1994, United States Environmental Protection Agency (EPA), the State of Idaho Division of Environmental Quality (IDEQ), and the Kootenai County Air Quality Advisory Committee (KCAQAC) entered into a memorandum of understanding (MOU). The MOU outlines the expectations, activities, products, and completion dates for the development and implementation of an Air Quality Improvement Plan (Plan) for Kootenai County.

In 1992, EPA proposed to designate the City of Coeur D'Alene nonattainment for particulate matter (PM-10). However, before this action was final, violations were recorded at a second monitoring site in the County, and the IDEQ requested that the entire County be designated nonattainment. Such designation would require the State to submit a plan that provides for the implementation of reasonably available control measures (RACM), including implementation of reasonably available control measures (RACT) and that shows whether attainment within six years of redesignation is practicable.

The County and State proposed an alternative approach to improving air quality in the area. In signing the MOU, EPA agreed to support this unique and innovative approach in the belief that an aggressive control strategy will result in a greater improvement in air quality in a shorter period of time than using traditional measures. At the same time, EPA is obligated to continue the traditional designation process. However, EPA will defer final action on the redesignation to allow the IDEQ and KCAQAC to prepare, adopt, submit, and implement an air quality plan that meets the requirements of the Clean Air Act and those set forth below. The EPA will only take final action on the redesignation proposal (1) if the IDEQ and local agencies fail to meet any one of the requirements, milestones, or due dates without prior written approval from EPA; (2) if EPA determines that the control measures adopted by IDEQ are inadequate to achieve a net environmental benefit in addition to attainment and maintenance of the NAAQS; or (3) if EPA's discretion to defer final action is constrained by judicial or Congressional action.

The IDEQ and the KCAQAC agreed to make a series of commitments, including implementing a public awareness program, completing a base year inventory, performing receptor modeling, and adopting Interim Control Measures as RACM for agricultural burning, open burning, residential woodburning, and winter road dust sanding. They also agreed to establish enhanced PM-10 and meteorological monitoring networks and conduct dispersion modeling. They are required to adopt a control strategy that includes Interim Control Measures and any additional measures to demonstrate attainment as expeditiously as practicable, but no later than December 31, 1999, and that demonstrates maintenance for an additional three years. They must then adopt the above measures as an Air Quality Improvement Plan and submit it to EPA as a revision to the State Implementation Plan by September 30, 1997. In general, both plans must meet EPA PM-10 SIP development guidelines and all control measures must implement RACM and RACT.

ATTACHMENT B

Flexible Attainment Region Agreement Corpus Christi, Texas

What is it?

The Flexible Attainment Region (FAR) approach is a new concept that was developed in order to recognize and encourage the efforts of local areas to maintain levels of ground level ozone below the National Ambient Air Quality Standard and thus remain in attainment. In the event of an ozone violation, the agreement will allow time for the area's control program to work, similar to contingency measures in a maintenance agreement, prior to the U.S. Environmental Protection Agency (EPA) issuing a call for a State Implementation Plan (SIP) revision or nonattainment redesignation. Corpus Christi developed a Memorandum of Agreement (MOA) which defined a detailed plan to improve Corpus Christi's air quality and formalized each respective agency's roles and responsibilities.

Who is involved in the Corpus Christi FAR?

The MOA was negotiated and signed by the City of Corpus Christi, San Patricio County, Nueces County, Port of Corpus Christi Authority, Regional Transportation Authority, U.S. EPA, and the Texas Natural Resource Conservation Commission (TNRCC).

What is in the Action Plan?

The agreement involves a number of air pollution control measures impacting both stationary (industrial and commercial) and mobile (automobiles) sources on a voluntary basis in order to reduce emissions of ozone precursors. None of the controls or initiatives are presently required by any regulations and many require substantial investments. Working in collaboration with the Air Quality Committee, the local representatives have agreed to immediately implement the following list of voluntary items:

1) Reid vapor pressure of gasoline sold by local suppliers will be lowered to 7.8 during the ozone season (May - September);

2) Vapor recovery and control systems will be installed at marine loading facilities;

3) The use of alternative fuels will be encouraged through the Clean Cities Program;

4) The use of reformulated gasoline in large fleets and retail sale of reformulated gasoline to the public will be promoted; and

5) The Ozone Action Day program will continue.

How Does It Work?

If ozone exceedances occur after the implementation of the above voluntary control measures, then the agreement calls for the implementation of additional voluntary measures. The list of possible control measures to be implemented after exceedances occur includes:

1) Substantially increase the number of businesses notified on Ozone Action Days;

2) Increase the number of public announcements about ozone;

3) Set up an ozone hotline;

4) Expand access to ozone information through computer network systems; and

5) Implement an employee commute awareness program for businesses with 25 or more employees.

If there is a continued deterioration of air quality as evidenced by a violation of the ozone standard, then additional enforceable SIP control measures will be identified. The SIP will be revised to include one or more of the following measures:

1) A regulation which establishes a maximum Reid vapor pressure of gasoline, to reduce the maximum from 9.0 to 7.8;

2) Mandatory implementation of vapor recovery and control systems at marine loading facilities;

3) Mandatory implementation of Stage I vapor recovery systems at gasoline retail outlets; and

4) Any other measure of equal consequence that may be identified.

If after the above SIP measures have been implemented, another violation occurs in the following year, then the SIP will be amended to enforce one or more of the following additional control strategies:

1) A regulation which establishes a maximum Reid vapor pressure of gasoline, to reduce the maximum from 7.8 to 7.2;

2) Utilize reformulated gasoline, in the event such is permitted by law or regulation; and

3) Any other measure of equal consequence that may be identified.

Adequate time will be allowed for the measures to be fully implemented and evaluated and in the event of an ozone violation, the EPA has agreed to allow the SIP measures an adequate opportunity to work before identifying additional control measures.