This is a document prepared for 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 was presented at the October 1997 FACA Subcommittee meeting and is not subject to further work group discussion.

Integration of Contingency Measures Issues With

Control Strategies and the President's Directive

Date: November 19, 1997 (Draft #4)

Contact: Eric Skelton	Phone: (509) 456-4727, x-121

FAX: (509) 459-6828

Email: scapca@iea.com

Background

The President's Directive (the Directive) of July 16, 1997, on Implementation of Revised Air Quality Standards for Ozone and Particulate Matter calls for common sense, flexible, and cost effective approaches toward implementation of the revised National Ambient Air Quality Standards (NAAQS)for ozone and particulate matter (PM) while maintaining progress toward cleaner air. The Directive also recognizes the provisions of Subpart 1 of Part D of Title I of the Federal Clean Air Act (FCAA) as governing the ultimate implementation and attainment of the revised NAAQS. Thus, the concepts of attainment dates [§172(a)(2)], reasonable further progress [§172(c)(2)], control strategies [§172(c)(6)], and contingency measures [§172(c)(9)] remain as fundamental elements of attainment planning under the law and under the Directive.

The Control Strategies Subgroup's issue paper on Control Strategies proposes an alternative framework for SIP development and implementation, in light of the principles in the Directive, to address those nonattainment areas which cannot rely on regional measures alone for attainment of the revised NAAQS. This framework allows for the implementation of innovative and nontraditional measures (e.g., economic incentives, voluntary measures) as long as the SIP includes specific rate-of-progress targets (customized for the specific nonattainment area) and deadlines, an attainment demonstration by the statutory deadline, and a set of prescribed contingency measures as "backstops" which would automatically take effect, in the event rate-of-progress requirements are not met. These contingency measures would be designed to ensure timely attainment of the NAAQS by achieving quantifiable emission reductions.

For a more thorough discussion of contingency measures issues, the reader should refer to the July 28, 1997 version of the Implementation Strategies for Contingency Measures issue paper which is attached as Appendix A.

Premise

The BPAPWG, in its September 24, 1997, teleconference, agreed to the premise that all areas of the United States that ultimately are declared nonattainment or Transitional, relative to the revised NAAQS, need to make real, quantifiable progress toward attainment, with the goal of meeting the statutory attainment deadlines identified under Subpart 1 of Part D of Title I of the FCAA, as expeditiously as practicable. Therefore, the contingency measures, identified in the SIPs, must be true "backstops", as conceived by the Control Strategies Subgroup, sustaining rate of progress requirements and ensuring timely attainment of the NAAQS by achieving quantifiable emission reductions. For those areas of the United States which fail to attain the revised NAAQS by the statutory deadlines, despite strict adherence to an implementation plan which projected attainment, the consequences of such continued nonattainment will be addressed according to the provisions of §179(d).

Contingency Measure Issues and Options

Under the Alternative Framework

In light of the Directive, the Subgroup's proposal on the alternative framework for SIP development, and the above premise, the BPAPWG is prepared to make recommendations on how the various issues and options contained in the July 28, 1997, draft of the issue paper on Contingency Measures can best fulfill the need for "backstops" under the alternative framework for SIP development.

Episodic Measures (Issue #1)

Episodic measures should be allowed as contingency measures to the extent that emission reductions are quantifiable and enforceable, and the measures satisfy the restrictions of 40 CFR Part 51 regulations. Serious consideration should be given to the premise that if episodic measures are part of a full seasonal effort to reduce emissions, then they are not excluded from consideration.

Voluntary Measures (Issue #2)

Voluntary measures should be given consideration as the contingency measures of last resort (i.e., all identifiable and feasible mandatory measures have been implemented). Additionally, they would initially receive less emission reduction credit than enforceable measures. In order for a voluntary measure to be accepted as a contingency measure, once implemented, there must be an ongoing analysis of its actual emission reductions. Determination of initial credit must be conservative so as not to overestimate the actual emission reduction benefit or air quality improvement. More credit should be given retrospectively after such measures have "proven" their emission reductions. (See the Issue Paper on Reasonable Further Progress for a more detailed discussion of this concept.) As a means of increasing the initial available credit, states are encouraged to implement voluntary measures early (i.e., before contingency measure requirements are triggered).

There should be a distinction made between voluntary measures which are part of an economic incentive program and those measures which are strictly voluntary. If there is an "enforceable" incentive (e.g., economic incentive, time or convenience incentive, etc.), then more initial emission reduction credit could be granted.

Timeframe for Adoption (Issue #3)

Contingency measures need to be adopted when the SIP is first developed, such that they can be implemented quickly (i.e., within one year) once it is determined that an area has failed to make reasonable further progress.

Required Emission Reduction/Air Quality Improvement (Issue #7)

The contingency measures must be able to keep the nonattainment area on track toward attainment, according to the customized rate of progress identified in the Subgroup's alternative framework or according to the nationally standardized "RFP metric" identified in the issue paper on Reasonable Further Progress. There must be sufficient collective credit from the menu of contingency measures to replicate at least one year's worth of emission reductions needed to achieve timely progress and attainment. In the case of voluntary contingency measures, more than one year's worth of emission reductions would be required in order to account for the inherent uncertainty.

Substitution of Measures (Issue #8)

As the state of knowledge increases as to the emission sources which primarily contribute to the nonattainment problem, it may be determined that contingency measures, other than the ones initially adopted in the SIP, would be more effective in achieving reasonable further progress and timely attainment of the revised NAAQS. Therefore, there should be an opportunity to substitute equally or more effective contingency measures for the original contingency measures. An assured opportunity for substitution may relieve some of the anxiety associated with having to identify "up-front" contingency measures in the SIP (Issue #3).

Measures for Areas Unable to Demonstrate Attainment (Issue #11)

SIPs for these areas must still include contingency measures. Cost-effectiveness bench marks may be used in order to draw the line between core SIP measures and contingency measures, keeping in mind that all reasonably available control measures must be implemented as core measures. The opportunity for substitution (Issue #8) is available to these areas. The problem remains for these areas that an implementation plan under Subpart 1 of the FCAA cannot be approved unless it demonstrates attainment of the NAAQS. The BPAPWG requests the Subcommittee to consider possible remedies, other than sanctions, for these areas.

Planning Requirements as "Contingency Measures" (Issue #13)

A commitment merely to do planning mid-course would not be an acceptable contingency measure. This concept would go against the principle of having enforceable, quantifiable reductions in the SIP to ensure rate of progress. However, this principle would not preclude a mid-course reassessment and substitution of other measures.

Contingency Measure Principles for Transitional Areas

The EPA Administrator will make nonattainment designations in the year 2000 for areas not meeting the revised ozone NAAQS. The Directive makes available a new Transitional classification for areas attaining the 1-hour NAAQS by 2000 but not meeting the revised NAAQS, as long as states agree to submit attainment plans by 2000 and/or have the ability to rely on regional measures to bring about early attainment of the revised ozone NAAQS.

There will be three different scenarios under which areas qualify for the Transitional classification:

Areas show attainment solely from the emission reductions achieved through implementation of the regional (OTAG) transport strategy.

Areas must rely on a combination of local measures and the regional transport strategy.

Areas achieve minimal or no benefit from the regional transport strategy and must rely solely on local measures.

The advantages of the Transitional classification include minimal planning requirements, streamlined attainment demonstrations, minimal revisions required for existing Conformity and New Source Review programs, and opportunity to rely on regional measures for the necessary emission reductions. For areas able to attain the revised NAAQS, based on regional measures alone, the simplified attainment planning process is an advantage that probably makes up for the difficulties of having to plan three years early.

The Transitional classification carries with it implementation date (2004) and assessment date (2007) requirements consistent with the schedule for OTAG states. There are 4 circumstances under which a Transitional area could fail to meet its deadlines. The BPAPWG discussed possible options to remedy such failure, but did not have time to explore the full range of options. Some possible remedies are presented below, but should not be construed as necessarily the best remedies:

1.	EPA failed to implement national measures in a timely manner and states were relying on the emission reductions to meet rate of progress requirements.

Possible Remedy: EPA implements preadopted national contingency measures.

2.	EPA implemented the national measures, but these measures failed to achieve the projected emission reduction or air quality benefit.

Possible Remedy: EPA implements preadopted national contingency measures.

3.	The state failed to implement measures in a timely manner which were part of the attainment plan or regional strategy.

Possible Consequence: Sanctions or preadopted Federal Implementation Plan goes into effect.

4.	The state/local measures failed to achieve the projected emission reduction or air quality benefit.

Possible Remedy: State implements preadopted contingency measures.

Contingency Measure Principles For Areas Not

Attaining The 1-Hour Or The 8-Hour Ozone Standard

Severe (1-hour) ozone nonattainment areas not meeting the revised NAAQS by the year 2000 will be designated nonattainment under both standards and will not be eligible for the Transitional classification. The following schedules will apply to these areas and are presented for the purpose of illustrating the integration of planning and control requirements for both ozone standards:

2000: Nonattainment designation for 8-hour standard. The 1-hour nonattainment designation, severe area classification, and severe area attainment plan requirements remain in effect.

2003: Attainment plan for meeting the 8-hour standard is due. The plan can either show attainment of the 8-hour standard simultaneous with meeting the 1-hour standard (relying on severe area emission reductions) or use additional core and contingency measures to demonstrate attainment of the 8-hour standard after attaining the 1-hour standard. The measures for attaining the 8-hour standard may be in accordance with the alternative frame work for SIP development, as described above.

2005/2007: Attainment date for 1-hour standard. If necessary, this is the effective date for beginning to implement the core 8-hour attainment plan. If the 1-hour standard has not been attained, the following occur:

Consideration of 1-year extension or sanctions.

§172(c)(9) 1-hour contingency measures take effect.

§181(b)(4) measures take effect.

Note that three different sets of control measures potentially begin to take effect all at once.

2005/2010: Attainment date for 8-hour standard. If the 8-hour standard has not been attained, the contingency measures in the 8-hour attainment plan take effect. There are now 5 sets of applicable control requirements in effect: 1-hour core, 1-hour contingency, §181(b)(4) measures, 8-hour core, and 8-hour contingency.

Appendix A

July 28, 1997 Version of the Contingency Measures Issue Paper

This is a preliminary document prepared by a subgroup member 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. This document has not been reviewed by the work group and is subject to further work group discussion. Interested people should forward their comments to a member of the Base Programs Analyses and Policies (BP&P) work group.

Phase II Implementation Strategies for Contingency Measures

Date: July 28, 1997

Status: Draft #5 - Incorporates discussions from the FACA subcommittee meeting June 11, 1997.

Contact: Eric Skelton, representing the BP&P work group @ (509) 456-4727 x 121, FAX: (509) 459-6828

Introduction

This paper addresses contingency measures in both attainment and nonattainment areas under the new/revised ozone and PM national ambient air quality standards (NAAQS) as well as the regional haze program.

Background

There are two purposes for contingency measures used in a SIP program. First, contingency measures are used to promptly correct a violation of the NAAQS in a maintenance area after attaining the standard. Second, contingency measures are used to assist a nonattainment area in meeting reasonable further progress (RFP) or to attain the NAAQS by a certain date [sec. 172(c)(9) and sec. 182(c)(9)]. The contingency provisions in Subpart 1 [sec. 172(a)(9)] are the general contingency measures and apply to all SIPs for criteria pollutants. The contingency provisions found in Subpart 2 [sec. 182(c)(9)] were part of the Clean Air Act Amendments of 1990 (CAAA) and apply only to those SIPs for ozone nonattainment areas under the current 1-hour standard. Subpart 2 was very specific as to the attainment dates and rate of progress to be achieved under the attainment plans for ozone nonattainment areas, but the 1990 CAAA did not specify how many contingency measures were needed or the magnitude of emissions reductions to be provided by these measures. The general preamble to implement Title I of the CAAA (57 FR 13498) provided the necessary specificity to enable areas to develop approvable plans with appropriate contingency measures. According to the general preamble, contingency measures were required to ensure, at a minimum, that an appropriate level of emissions reduction progress would continue to be made if attainment of RFP was not achieved. Under the worst case scenario, if there was a complete failure to achieve RFP (i.e., 3 percent per year), then the contingency measures needed to be sufficient to make up the entire increment. In the more likely case of only partial failure, the state could then select for the slate of contingency measures, those measures which would make up the shortfall.

It is clear that Subpart 1 applies to all criteria pollutants, including those for which standards are promulgated after the effective date of the 1990 CAAA. It is less clear as to the applicability of Subpart 2 to new/revised standards. In fact, the case could be made that Subpart 2 and the current general preamble, with their reference to progress by specific dates which have already elapsed, could not possibly be applied to a new/revised ozone standard, and that rate of progress and attainment dates under new/revised standards must be addressed by new rule making.

Contingency Measures for Nonattainment Areas or Areas of Violation

Historically contingency measures have been defined as specific measures to be undertaken if a nonattainment area fails to make RFP, or to attain the NAAQS (i.e., ozone or PM-10) by the applicable attainment date. These contingency measures are included in a State's SIP. Reductions must be achieved promptly (i.e., in the year following that in which the failure was identified).

For ozone, under Subpart 2, contingency measures must be fully adopted rules or measures. The measures do not have to be implemented unless and until they are triggered, either by failure to meet a milestone in RFP or to attain the NAAQS. The SIP should clearly state the trigger mechanisms, a schedule of the implementation of the measures, and an indication that the measures will be implemented with no further action by the State or EPA. Contingency measures prior to November 15, 1996 (pre-1996), had to address VOC reductions while post-1996 contingency measures could address reductions for VOC and/or NOx. EPA allows for the post-1996 contingency measures to provide for less than 3 percent in VOC reductions as long as the difference is made up in NOx reductions. Examples of ozone contingency measures include, but are not limited to, Stage II vapor recovery, enhanced inspection/maintenance programs, and VOC control on minor (i.e., less than 100 tons per year) new sources.

PM-10 contingency measures generally have no set rules other than allowing the area to regain RFP or attain the PM-10 NAAQS. Examples of PM-10 contingency measures include, but are not limited to, substituting liquid deicers for sand and/or road salt, and implementing residential wood combustion (RWC) curtailment programs.

Contingency Measures for Attainment Areas

1. Areas Redesignated as Attainment for the NAAQS

When a State submits a request to EPA to redesignate a nonattainment area to attainment for a particular pollutant, the package must contain an approvable maintenance plan. The maintenance plan constitutes a SIP revision and must provide for maintenance of the NAAQS in the area for at least 10 years after redesignation. Eight years after the original redesignation request is approved, the area must submit a revision to the SIP to provide for maintenance of the NAAQS for an additional 10 years following the first 10-year period. The maintenance plan contains contingency measures to ensure prompt correction of any violation of the NAAQS that might occur after redesignation to attainment.

When the redesignated area has violated the relevant NAAQS, contingency measures listed in the maintenance plan are invoked to make prompt corrections that will bring the area back into attainment. There are two types of contingency measures which can be used in the maintenance plan.

The first types of contingency measures are statutorily-mandated control programs that were not implemented prior to submittal of the redesignation request. In this case, EPA allows the State to move these measures from the implemented SIP to the contingency measures portion of the SIP provided the State demonstrates that such measures are not needed for maintaining the NAAQS. These contingency measures can then be folded into the maintenance plan for the area. Certain specific programs, such as basic I/M, were required to be adopted by the state and approved by EPA in order for the State to have a fully approved SIP. EPA will accept, in lieu of actual adoption, legislative authority for such programs and allow such measures to be placed as contingency measures in the maintenance plan, provided the State demonstrates such measures are not needed to maintain the NAAQS.

The second type of contingency measures initially do not need to be fully adopted and can simply be listed. However, the contingency measures in the maintenance plan are considered an enforceable part of the SIP, and the measures must be adopted expediently once they are triggered. The maintenance plan identifies the specific triggers or indicators used, the specific measure(s) to be adopted, a schedule and procedure for adoption and implementation of the measure, and a specific time limit for action by the State.

2. Areas Always in Attainment with the NAAQS

These are the areas that have always attained the standard and are included in the maintenance SIPs submitted to EPA in 1972. As a rule, these SIPs do not include contingency measures to correct any violation of the standard.

ISSUES

1. Should contingency measures be episodic? Should episodic contingency measures be included in the core measures for the SIP? In the past, episodic measures were part of "emergency episode" plans during the 1960's and 1970's. These measures were designed primarily for point sources during higher levels of air quality alerts. Since then many of the point sources have continuous emission controls as a result of the CAA. Thus today, episodic measures have a better potential to obtain additional emission reductions when applied to area and mobile sources of emissions than to point sources of emissions. This does not preclude the use of episodic control strategies (e.g., production curtailment or temporary process shut-down) on a point source especially if the source is well controlled to start with and the next level of continuous control should prove to be cost prohibitive.

Ozone strategies, according to EPA guidance, were required to be real, permanent, quantifiable, and enforceable. Episodic strategies traditionally have not been viewed as providing real, permanent, quantifiable, and enforceable emissions reductions, and therefore have not been considered as approvable for the contingency measure requirement under the existing NAAQS. Section 123 of the Clean Air Act forbids credit being given in a SIP demonstration when the emission stack height exceeds good engineering practices or the source uses other dispersion techniques such as episodic controls.

Currently, many western states have seasonal residential wood combustion (RWC) curtailment programs that curtail all wood burning except for sole-source heating as a means of controlling particulate matter emissions. Such seasonal programs have proved successful and have been subsequently adopted in the SIP. These programs are generally triggered by the ambient concentration of PM-10 reaching a certain threshold (approximately 90 to 110 g/m3) and generally last for 24 hours or until temperature inversion conditions dissipate. An exemption from the current interpretation of section 123 for this use of an episodic control strategy as well as emissions from agricultural and silvicultural prescribed burning, and open burning is provided in the definitions of "EPA Regulations on Preparation of Implementation Plans" [40 CFR 51.100(hh)(2)(iii) and (iv)].

Episodic area source measures, as described above, are behavior based; meaning that their success hinges to a significant extent on the degree to which public behavior can be modified and the infrastructure is in place to facilitate the modified behavior. It often takes years of effort to successfully modify public behavior to the point that such programs can be relied upon to provide the desired emission reductions on a consistent and quantifiable basis. To use the example of open burning programs, if burning was suddenly to be banned or otherwise restricted through implementation of a contingency measure, the success of the program would depend on the extent to which nonburning disposal alternatives were available, the effort to get the word out to the public on the availability of the alternatives, and the extent to which the public was willing to change its behavior. Even a supposedly enforceable burn ban could have a low compliance rate (and low emission reduction potential) if tens of thousands of citizens were suddenly impacted but the regulatory agency had not laid the ground work ahead of time for a successful program. The dilemma is whether to expend resources to lay ground work for a prospective program (reserved as a contingency measure and therefore possibly never implemented) or to wait until the measure is triggered and then live with a low compliance rate, at least in the short term.

Does Section 123 therefore preclude the use of episodic controls except for the source categories referenced in 40 CFR 51? This matter is subject to legal interpretation, but it may be possible to make a case for the legitimacy of episodic control for non-point sources. The primary context of Section 123 is point source stack height, and so the case could be made that it doesn't apply to non-point sources. However, EPA has contended that the prohibition on other dispersion techniques (i.e., "any intermittent or supplemental control of air pollutants varying with atmospheric conditions") causes Section 123 to apply to non-point sources as well.

As a counterpoint to this interpretation of Section 123, Section 182(g)(4) provides for an economic incentive program as a contingency for serious and severe ozone nonattainment areas which have failed to meet attainment milestones. The economic incentive program may include any of the transportation control measures identified in Section 108(f). Section 108(f)(1)(B) includes "methods and strategies that will contribute to the reduction of mobile source related pollutants during periods in which any primary ambient air quality standard will be exceeded and during episodes for which an air pollution alert, warning, or emergency has been declared". It therefore appears that certain mobile source measures may be exempted from the Section 123 prohibition against episodic measures.

The Reasonable Further Progress (RFP) issue paper discusses the use of seasonal measures for the purpose of meeting RFP, and treats these measures different from strictly episodic controls. The implication is that if a control program is in effect for an entire season, then the Section 123 prohibition would not apply to seasonal controls, even if their primary purpose is to protect air quality during the episodes that occur over the season. For example, a residential wood combustion curtailment program may start in October and run through the following March, even though there may be only a few episodes which trigger wood stove bans over the course of the cold weather months. But the program consists of more than just calling bans. There are daily reports to the media on particulate air quality conditions, public service announcements, and education/outreach efforts occurring throughout the winter. The result is that emissions are reduced at all times by practicing "burning cleanly" (thereby reducing the number of times that bans are necessary), and the public knows how to respond in the event of a real episode. It could therefore be argued that any program which is similar in its seasonal approach to an otherwise episodic air quality problem is deserving of the same type of exemption from Section 123 as is the case with the programs specifically identified in 40 CFR 51.

Pros: Episodic measures should be used to supplement permanent contingency measures. Episodic measures can achieve desired results in a more cost effective manner than what could be achieved with year round controls. Some episodic measures may prove effective over time as public attitudes/awareness changes. Episodic measures may be beneficial to small businesses in lieu of permanent control measures.

Cons: There is some difficulty in predicting when episodic control measures are needed. In order to respond in a timely fashion, the threshold ambient concentration has to be set relatively low. This can result in a number of false positives (i.e., an area predicts a potential exceedance of the standard and episodic measures are implemented when the standard would not have been exceeded if the area did not take any actions). In most cases, if the standard is not exceeded after the episodic measure is implemented, the area cannot say with certainty that implementation of episodic measures kept the area in attainment or whether other factors (i.e., meteorology) prevented the violation.

2. To what degree should voluntary measures be included as contingency measures? For each AOI/AOV or nonattainment area, there is a core set of prescribed measures that are designed to bring the area into attainment with the standard. There may be some circumstances in which these measures may not get the area to attainment but rather close to attaining the standard. In this situation, voluntary measures may provide enough reductions to bring the area the rest of the way to attaining the standard. Should there be a progressively stricter test, depending on status of area (e.g., always attainment, redesignated attainment, or nonattainment), to determine the extent of credit to be claimed in the SIP for voluntary measures. Examples of voluntary measures include, but are not limited to, no-drive days on ozone alert days.

The same issue of laying the groundwork in advance of implementing certain episodic measures also applies to the successful implementation of voluntary measures. Most voluntary measures discussed in the context of ozone and PM attainment and maintenance involve voluntary actions by the public in order to achieve the desired emission reductions. In the short term, the reductions may be minimal and difficult to quantify, until the necessary infrastructure is in place and the public builds its understanding and commitment towards the voluntary program. The Reasonable Further Progress issue paper's Issue #8 poses the question of whether emission reductions that are not fully enforceable can be credited towards RFP. The point is made that while reductions may not be enforceable or quantifiable prospectively, they may be so retrospectively, after several years of implementation, and although such reductions may have no value for RFP purposes, they may be useful in a maintenance plan. The RFP issue paper also made the suggestion that such voluntary measures could be backed up by fully adopted enforceable measures which would be implemented to make up the extent of the reduction shortfall attributed to the voluntary contingency measures.

Pros: Voluntary measures should be used to supplement enforceable contingency measures. Voluntary measures can achieve desired results in a more cost effective manner than what could be achieved with mandatory controls. Some voluntary measures may prove effective over time as public attitudes/awareness changes. Voluntary measures can increase the public's understanding of their role in abatement as people make conscious choices to "buy into" the programs.

Cons: One of the work group members suggested that voluntary measures are "window dressing" serving only to make people feel good. States cannot tell ahead of time how effective a voluntary measure would be. Voluntary measures are not enforceable. Providing credit for voluntary programs may not be permissible under the Act. In fact, the emission reductions from contingency measures should have to meet a higher test of proof than the core SIP measures, because by the time that contingencies are implemented, the nonattainment area has already fallen behind on its commitment, due to some degree of failure of the core plan.

Option 1. Allow voluntary contingency measures to be used and give full emission reduction credit with an assumption that at some point, these measures will achieve their full potential.

Option 2. Allow voluntary contingency measures to be used, but with a discounted prospective credit which may be increased retrospectively when full potential is proven in the future.

Option 3. Allow voluntary contingency measures to be used, but back them up with fully adopted enforceable measures which must be implemented to the degree that their emission reductions are needed to make up for the partial or total failure of the voluntary measures.

Option 4. Allow voluntary contingency measures to be used, but back them up with enforceable commitment to adopt measures which must be implemented to the degree that their emissions reductions are needed to make up for the partial or total failure of the voluntary measures.

Option 5. Do not allow the use of voluntary measures as contingency measures.

3. What is the time frame for adoption of contingency measures in newly designated nonattainment areas? In the past, ozone SIPs were required to be submitted by November 1993. EPA allowed the States to submit contingency measures by November 1994. Will comparable separate submittal dates be allowed for the new/revised standards for ozone and PM-FINE as well as regional haze?

Option 1. Allow a longer period of time.

Pros: Allow the area to determine what is needed for contingency measures. The area may not know the effect of the core SIP measures until they have been implemented, given the current state of understanding of secondary pollutant formation. Until the area knows the effectiveness of these measures, the area cannot develop contingency measures with certainty as to their effectiveness to solve the problem.

Cons: If the areas are allowed a long lead time and contingency measures are not in place, the area will have nothing to fall back on if it violates the standard or misses a RFP milestone.

Option 2. Allow a shorter period of time.

Pros: Contingency measures would be ready in a short period of time. This would provide the area with a fall back position if the area violates the standards or misses a RFP milestone.

Cons: The area may adopt contingency measures which may not provide enough emission reductions or the wrong type of emission reductions.

Option 3. Allow the use of voluntary and/or episodic measures as the ones to be implemented in the short term, and then develop mandatory/permanent measures to be implemented in the long term, according to a specified schedule, in conjunction with a thorough analysis of why the area violated the NAAQS or failed to make RFP.

Pros: Area would have measures to fall back on if the short term voluntary and/or episodic measures fail.

Cons: Additional resources would be expended on long term measures that may not be needed by the area.

Option 4. List the voluntary and episodic contingency measures in the plan, but do not adopt them until the requirement for contingency measures has been triggered. By this time, there may be a better understanding of the nonattainment problem, the possible solutions, and whether voluntary and/or episodic measures are a viable part of the solution.

4. Is an area that implements contingency measures early, to avoid a violation of the new/revised standard, required to backfill with additional contingency measures? [Note: The Helms memorandum suggested that nonattainment areas should not have to backfill. EPA has applied this reasoning to both maintenance and nonattainment areas.]

Option 1. The area is required to backfill with additional contingency measures.

Pros: Contingency measures would be ready to implement if needed by the area.

Cons: There will be additional resources expended to develop additional contingency measures. The area may develop contingency measures that may not be needed.

Option 2. The area is not required to backfill with additional contingency measures.

Pros: The area can use the resources that would have been used to develop additional contingency measures for other attainment issues.

Cons: The area may not have contingency measures available as a fall back position if there is a violation of the standard or a missed RFP milestone.

5. Could a contingency measure be used to broaden the applicability of the control measures within the AOI? The State during the SIP development process would apply a control measure to those sources closest (e.g., within a mile radius) to the AOV. The contingency measure would specify that the control measure will apply to: (1) an increased radius of applicability from the AOV (e.g., increase to a 2 mile radius); (2) apply the control measure to the predominant upwind area from the AOV; or (3) an AOI-wide applicability of the control measure.

Pros: This would allow the expeditious implementation of control measures on applicable new sources in the expanded area inside of the AOI.

Cons: All the control measures in the original portions of the AOI may not be necessary for the sources in the expanded area within the AOI. This may result in the AOI over controlling the sources included in the area and could result in delays in implementing initial reductions to increase the area from which to obtain reductions and lessen the burden on sources in the original area.

6. Will contingency measures be required for Class I areas for visibility purposes? Areas that do not achieve the reasonable progress goal will have specific measures and a time frame to meet the goal. Contingency measures may be a means to get the area back on track if it deviates from the implementation plan. This issue is not addressed in the Regional Haze issue paper. To the extent that regional haze, ozone, and PM programs are integrated, the policies and requirements governing contingency measures for ozone and PM would have an indirect benefit on meeting regional haze goals.

The current regional haze program requires Best Available Retrofit Technology (BART) on major sources (250 tons per year)of "any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility" in a mandatory Federal Class I area. The extent to which the regional haze program is strengthened by upcoming regulations remains to be seen. The regional haze issue paper includes several options under "BART and/or Alternatives". Some of these options could be retained as contingencies, such as:

Option 1. Continue to pursue existing sources on a source-by-source basis (i.e., major source or not) where impairment is "reasonably attributable."

Option 2. Pursue existing sources on a source-category-by-source-category basis where impairment is "reasonably attributable."

Option 3. Eliminate the "reasonably attributable" test and provide regulations specifying BART as a floor for retrofits.

Option 4. Allow the process to consider a broader range of sources contributing to regional haze and to determine the appropriateness of BART in the context of other requirements.

7. How much emission reduction or air quality improvement is required for contingency measures? In practice, contingency measures have basically required the implementation of some new reductions that at face value seem sufficient to correct the problem. The Reasonable Further Progress issue paper attempts to address this issue, but the selection of a "RFP metric" is still at issue (i.e., should RFP be determined according to emission reductions, administrative actions, or actual air quality improvement). The final selection will help to clarify the role of contingency measures in correcting a RFP failure. The following options will have more or less utility, depending on the outcome of the RFP discussions:

Option 1. The contingency measure with unspecified emissions reduction or air quality improvement credit. Cannot quantify the amount of emissions reduction or air quality improvement, but continues progress in the right direction.

Pros: Very simple to develop a contingency measure that can claim progress.

Cons: No accountability. The contingency measure may not make much progress to attain the standard. The area may develop a contingency measure that in effect achieves little or no real progress.

Option 2. The contingency measure must achieve some quantifiable percentage of emission reductions, reduction of some portion of VMT growth, or air quality improvement. In keeping with the traditional concept of implementing contingency measures to correct a shortfall condition (e.g., attainment date, reasonable further progress, new violation of the NAAQS), the attainment plan or maintenance plan would need to specify both the timing and the magnitude of the correction required by the contingency measure(s). In addition, in the event it is determined that the slate of contingency measures is insufficient to make up the shortfall, then the plan should outline a process (including a timeline) for identifying and implementing additional measures to make up the remainder of the shortfall which the previously identified contingency measures failed to correct.

Pros: Progress is real and quantifiable. The contingency measure would result in specific measurable progress sufficient to correct the short fall.

Cons: Areas may be hard pressed to develop measures that will demonstrate quantifiable progress, given the difficulty in developing the core measures.

Option 3. The choice of option 1 or 2 is left to the planning body at the AOI/AOV level.

8. Should there be a mechanism to allow substitution of equivalent measure(s) in lieu of SIP-planned contingency measures? Potential equivalent measures could include, but may not be limited to, Inspection and Maintenance (I/M) 240 program, national measures such as the acid rain program. Measures developed at the state or local level as substitutes would be given equal consideration. The burden should be placed on the planning body to demonstrate that the substitute measure(s) achieve equivalent or better reductions in as timely or more timely a manner as would have been the case with implementation of the original contingency measure(s).

Pros: Substitution of equivalent measures would provide additional flexibility and allow areas to defer the contingency measure until implementation of the contingency measures becomes absolutely necessary. At the time that contingency measures are initially submitted as part of the attainment/maintenance plan, there may be considerable uncertainty as to the measures' potential effects. Substitution at the time the requirement for contingency measures is triggered, may afford the opportunity to implement a measure or measures with a more certain effect.

Cons: Substitution of equivalent measures has the potential of becoming an equity issue. There is the possibility that some areas that will be able to take advantage of this option while other areas, through no fault of their own, will be unable to substitute equivalent measures. Substitute measures may not even be available at the time they are needed.

New national measures are going to have a greater or lesser effect on emissions from area to area, depending on the source mix in a given area. It is quite possible that a given measure would provide emission reductions which are equivalent to or exceed the emission reductions of the originally contemplated contingency measure in one area, but have little to no effect in another area. With contingency measures tending to be the measure of last resort, due to cost and/or difficulty in implementation, the area with the "wrong" source mix to take advantage of the national measure is placed in the inequitable position of having to proceed with the more costly and/or difficult measure.

The situation may arise where an area needs both the "substitute" and the original contingency measure(s) in order to attain the standard as expeditiously as practicable. Given the present gap in knowledge, years could go by before the planners realize that in hindsight, attainment could have been achieved sooner with simultaneous implementation of the "substitute" and the original measure. If substitution is allowed, attainment may take longer than would be the case if the area had proceeded with both types of measures.

Option 1. Allow substitution of enforceable, permanent, and quantifiable measures.

Option 2. Allow substitution of voluntary and/or episodic measures.

Option 3. Do not allow substitution.

Option 4. Allow substitution only as part of maintenance planning (i.e., not for RFP purposes in attainment planning).

9. Should measures that were used by an area to bring it into attainment be dropped from the maintenance plan? If an area drops a measure from a maintenance plan, the area must roll the measure over as a contingency measure and provide a technical demonstration showing the measure is no longer needed for maintenance. If a nonattainment area contingency measure(s) [under sec. 172(c)(9)] helps bring an area to attainment, the measure(s) should continue to be used in the maintenance plan in the event the area wishes to redesignate to attainment. If the State shows the measure is not needed to maintain the standard, it can be rolled over as a contingency measure in the maintenance plan.

10. Should there be federally prescribed contingency measures for attainment and/or maintenance plans? Not referring to the rolling over of unimplemented prescribed measures into the contingency category, but rather the EPA formulation of measures that should be used as contingencies.

Pros: Federally prescribed contingency measures will provide national consistency. This will level playing field between nonattainment areas.

Cons: The contingency measures promulgated by EPA may not be the right measures for all areas. To correct this EPA will need to incorporate the concept of "rebuttable presumption" in each contingency measure.

[Note: Refer to flow chart for the NAAQS Implementation Process under "Promulgate National Measures."]

11. How should contingency measures be addressed in the situation where the SIP is unable to show attainment and there are no feasible core measures available to bring the area into attainment?

Option 1. Implement all feasible measures, including those measures which had been contemplated as contingencies.

Option 2. Reserve some measures as contingencies, but commit to a comprehensive review of available options at a predetermined point in the future planning cycle.

12. Should contingency measures be implemented early if it is determined that, in the spirit of attainment "as expeditiously as practicable", the contingencies will cause the area to attain sooner than if just the core measures had been implemented?

Option 1. Implement contingency measures as core measures.

Pros: Expeditious attainment.

Cons: The contingency measures may not be as reasonable, economically feasible, or practical as the core measures. Because of their higher cost, the contingency measures are often measures of last resort.

Option 2. Reserve contingency measures unless triggered by missing RFP or the attainment date, or for new violations after attainment.

Pros: This is a more cost effective and practical approach.

Cons: Attainment and/or RFP is delayed.

Option 3. Establish cost effectiveness bench marks to distinguish between core measures and contingency measures and in effect, defining the "practicable" side of "expeditious".

Option 4. Implement all feasible measures, and require contingency measures for maintenance planning only.

13. Should the only contingency measures be planning requirements (i.e., no additional control requirements)? Under this option, the failure to attain or to make RFP or the failure to stay in attainment is viewed as a flaw in the planning process (i.e., not a failure of control measures). The "contingency measure" is then a requirement to restart the planning process or to initiate mid-course corrections. See issue #7 in the RFP issue paper.

Pros: Requires assessment of the failure and presumably initiates the process to find solutions.

Cons: There is no firm commitment to fix the problem with additional emission reductions or air quality improvements.

14. Should alternative contingency measures be developed to account for various air quality outcomes? For example, a slate of VOC or NOx measures would be triggered depending on whether the nonattainment problem turned out to be VOC limited or NOx limited, respectively. See the "Customized Process" in the RFP issue paper.

Pros: Area would have measures available to use regardless of the limiting factors.

Cons: Additional resources would be expended developing alternative contingency measures.