Working Draft – Do Not Cite or Quote

This is a preliminary document prepared by a subgroup of members of the National and Regional Strategies Work Group as part of the Federal Advisory Committee Act (FACA) Subcommittee process. It is not an EPA document. It is subject to further work group discussion. Interested people should forward their comments to a member of the National and Regional Strategies Work Group.

Institutional Mechanism for Development and Implementation of Regional Strategies.

Date: February 13, 1997

Status:	Discussed at NRS Work Group meeting January 30-31; revised per

discussion – Revised Draft Issue Paper (Revision #6)

Contact:	Christine Shaver, representing N&RS work group

Telephone: (303)440-4901, Fax (303)440-8052, email chriss@edf.org

DESCRIPTION: In many areas where regional transport is significant, the current nonattainment area approach is not an adequate institutional mechanism to deal with the regional nature of the pollutants of concern. New institutional mechanisms may be needed to ensure development and implementation of strategies to reduce regional transport of ozone, particulate matter, and regional haze, and their precursors. To develop an effective and equitable regional strategy, it will likely be necessary for a number of states, tribes, local governments, existing regional institutions, and EPA to work in concert to assure consistency, efficiency, and broad public participation in the process. Some regional institutions may already exist that may be appropriate fora for developing regional strategies.

The options and recommendations presented in this paper recognize that states and tribes have primary responsibility for developing, implementing, and enforcing air quality programs, with EPA guidance and oversight. Similarly, states and tribes should have maximum flexibility to develop institutional mechanisms for carrying out their collective responsibility when interstate transport contributes to local or regional air quality problems. The proposed recommendations regarding structure, operations and functions of regional institutions are intended to provide the participants with the flexibility to design an agenda tailored to the nature and scope of the regional problem and to develop a process that is consistent with the stated principles. This may result in different approaches being used in various regions.

The options and recommendations presented in this paper are intended to be consistent with and build from the RAMP/AOI issue paper (2/13/97).

Overview of The Institutional Mechanism for Development and Implementation of Regional Strategies

An overview of the proposed approach for establishing such institutional mechanisms follows:

1. Establishment of the institutional mechanism. The Clean Air Act gives EPA authority to establish transport commissions (TCs) and air quality control regions (AQCRs). EPA could establish "Regional Air Management Partnerships" (RAMPs) using this statutory authority; EPA could rely on its general rulemaking authority to provide direction and timeframes to the RAMPs. RAMPs could be set up by modifying the charter of existing regional organizations (e.g., GCVTC and OTAG) or by creating new regional institutions. Two to six RAMPs could be established initially, with the potential for the establishment of additional or alternative regional institutions as AOIs are identified.

2. Structure and Operations of the RAMP. RAMPs, and any subsequently established AOI-based institutions, should include representation from all levels of government with regulatory authority over sources contributing to an air quality problem, but should not become so large as to impair efficient functioning of the organization. Regional institutions (RAMPs and their progeny) should strive to reach consensus, using appropriate technical data and opportunity for public comment. All states located within a region would be voting members of the organization. States and tribes would negotiate tribal representation. Federal cabinet level resource managers (or their designees) might also have a vote. EPA would participate as a full partner but would not vote on recommendations that require EPA rulemaking. Stakeholders (e.g., major industrial participants, business/economic interests, and environmental organizations) would participate in the consensus-building process.

3. Authority of the RAMP. The RAMP would mainly act as a forum for consensus-building to reach agreement and develop recommendations. The RAMP could rely on the use of interstate compacts or negotiated cooperative agreements to meet clean air requirements; engage in concurrent state rulemaking consistent with negotiated recommendations; or develop independent SIP revisions in response to EPA regulations or SIP calls. EPA will provide underlying enforcement for implementation and compliance with clean air standards by using existing rulemaking authority to establish appropriate performance standards and timeline parameters for the RAMP. Regardless of whether the RAMP is able to reach consensus on acceptable emissions management programs, EPA would issue SIP calls to insure that appropriate control strategies are implemented and enforced by the pertinent parties.

4. Role of the RAMP in air quality management. The RAMPs role in regional air quality management will depend on the nature and geographic scope of the interstate/multi-state air quality concerns that need to be addressed. At a minimum, the RAMPs would identify preliminary AOIs based on possible AOVs and would assist states and tribes in developing regionally integrated plans. If AOI-based regional institutions are established, the RAMPs may serve an integrating function or continue to provide technical assistance (e.g., oversee emission inventories, regional modeling protocols, and regional control programs; maintain an information clearinghouse). RIPs would be prepared by states and tribes within each AOI (which may encompass the entire RAMP planning domain for some air quality problems or only a portion of it).

5. Role of the RAMP in emission trading. The RAMP's role will depend on its overall authority and the nature and extent of emissions trading necessary or desirable to meet air quality standards. The RAMP would determine what role it wished to play in emissions trading programs, e.g., it could develop and oversee trading programs, while the emission trading program would be implemented by other institutions with expertise in banking, credit transactions, and commodity trading. If market-based approaches are to be used within the RAMP (or in any AOIs within the RAMP), regional guidelines and protocols will be needed to assure consistency in interstate/tribal transactions (e.g., comparable methods for quantifying and qualifying emissions and emission reductions).

ISSUES, PRINCIPLES, AND OPTIONS:

1.	WHO ESTABLISHES THE INSTITUTIONAL MECHANISM FOR REGIONAL AIR QUALITY PLANNING AND ON WHAT BASIS?

PRINCIPLES:

Institutional mechanisms are needed to address multi-jurisdictional air quality issues. The method used to establish the institutional mechanism must be adequate to ensure that planning and implementation occur in a timely manner.

New institutional mechanism should compliment, supplement or replace functions served by existing institutions. Existing institutional mechanisms may be adequate to carry out regional planning functions in some areas.

OPTIONS:

Option 1: Use existing regional organizations: Existing multistate institutional structures might provide useful models or mechanisms for regional planning and implementation efforts. Numerous regional organizations have been formed by states, tribes, and local governments to discuss, and in some cases address, air quality issues of shared concern. Most of these organizations are voluntary and involve cooperative activities; some exist as formal transport commissions, with more specific objectives and a prescribed relationship with EPA. Whether one or more of these existing organizations provides an appropriate institutional mechanism for carrying out regional air quality planning depends on whether the existing institutions (1) are operating effectively and efficiently; (2) have characteristics consistent with those outlined in this issue paper; and (3) are able to assume responsibility related to the development and implementation of regional emissions management programs needed to comply with new NAAQS.

The advantages of such an approach are that these organizations exist and have a history of working together on various issues. Their structure and operating procedures are already defined. The disadvantages of using existing institutions are that they may have been established for different or more limited purposes, and may not have the necessary characteristics. Modifying their charters could disrupt ongoing initiatives and may prove more difficult than establishing a new institutional mechanism.

Option 2: Establish new institutional mechanisms: Establishing new regional (and perhaps, subregional) institutional mechanisms may be preferable to trying to make existing institutions adapt to new roles and responsibilities. The advantage of such an approach is that the new institutions could be designed from the outset to have the characteristics necessary to develop and implement regional emission management programs to meet new NAAQS. The disadvantages are that the new institutions might, in some respects, be duplicative of ongoing efforts and could stretch scarce resources too thinly for participating agencies and parties. If a new institutional mechanism is created, then its relationship to existing regional institutions as well as individual states/tribes/local districts will need to be clearly outlined. Assuming existing institutions with related responsibilities and interests continue to exist, agreements and protocols regarding coordination, allocation of responsibility, and procedural interactions (e.g., decisionmaking chain) will need to be established. The nature and extent of coordination will depend on the authority imbedded in the new regional institution. On the other hand, the new institution could actually replace and thereby eliminate one or more existing regional institutions.

In addition to these general pros and cons, there are other advantages and disadvantages depending upon the method used to establish regional institutions. Alternative methods, including the authority and requirements for establishment as well as the advantages and disadvantages, are outlined below:

Option 2.a: EPA could establish formal transport commissions: EPA could establish "transport commissions" using the authority provided by section 176A, which provides general authority to establish transport commissions (TCs), and 169B, which provides general authority to establish TCs for regional haze. EPA could also rely on section 184 to the extent the Ozone Transport Commission remains in existence.

Procedurally, the Administrator (on her own or pursuant to petition submitted by a governor) may establish a transport commission whenever she determines interstate pollution from one or more states "contribute significantly" to a violation of the NAAQS in one or more other states or "contributes significantly" to visibility impairment in a class I area located in another state. If petitioned to create an area, EPA must approve or disapprove the petition within 18 months of receipt. FACA does not apply to transport commissions, but FACA applicability may become an issue if the TC exceeds the scope of tasks provided under 176A(b)(2) or 169B(d)(1).

Substantively, the TCs are charged with carrying out certain tasks. Under section 176A, interstate transport commissions are required to assess the degree of interstate transport of pollutant or precursor; assess strategies for mitigating transport; and recommend measures necessary to ensure SIPs meet 110(a)(2)(D). There is no set timeline for developing recommendations, but the Administrator has 18 months to respond. A TC may request that the EPA Administrator issue a SIP call. Under section 169B, visibility TCs are required to: assess the scientific and technical data, studies and other currently available information about current, potential or projected visibility impairment in affected class I areas; and issue a report within 4 years of establishment recommending any necessary measures to mitigate adverse impacts. EPA is required to issue regulations in response to the report within 18 months, and States are required to revise their SIPs within 12 months of issuance of regulations.

EPA cannot force states to actively participate in a TC (e.g., EPA cannot use section 179 sanctions or 110(c) FIP authority); however, EPA can include a state within the TC, and EPA may make recommendations proffered by the TC binding on a non-participating state through a SIP call. EPA would use SIP calls to require State submission of appropriate control programs (and inventories, monitoring plans etc.). In addition, EPA may encourage the TC to perform the identified functions by taking its own action in the absence of any specific recommendation from the TC. For example, EPA could provide that it will take a certain action by a specified date and will consider recommendations of TC submitted before that time. EPA could also promulgate default plans/contingency regulations upfront that would be imposed expeditiously or by some date certain if the TC fails to submit an acceptable plan. EPA could also use its FIP authority or sanction states that fail to make submissions.

The advantages of establishing transport commissions are that the structure, functions and recommendation development process are delineated in the CAA. On the other hand, it may be desirable to have the regional institutions performing functions other than those outlined in the law. Satisfying the statutory criterion for inclusion in a TC ("contributes significantly") might also be difficult particularly early in the process and for the largest regional bodies (e.g., East/West planning bodies). However, EPA could arguably, rationally rely on a "daisy-chaining" approach to encompass a broader region. Also, if the TC is for PM, ozone and visibility, the number of states that could be included could increase. Other factors, such as economics and administrative ease may be difficult to factor in since the sole criterion listed is "contributes significantly." Therefore, if two states both "contribute significantly" to a violation in another state, it may be difficult to only have one of those states in the transport region (based on administrative or economic concerns) with the state suffering the violation.

Option 2.b: EPA could establish air quality control regions: EPA has very broad authority under section 107(c) of the CAA to create "air quality control regions". An AQCR is defined as "any interstate area or intrastate area" the Administrator "deems necessary and appropriate for the attainment and maintenance of ambient air quality standards." EPA may provide financial support to AQCRs under section 106. EPA has broad rulemaking authority under section 301(a) to "prescribe regulations necessary to carry out [EPA's] functions under this Act." Using these authorities to create, fund and provide direction to regional institutions would be consistent with the general purposes of the CAA. Under section 101(a)(1) of the CAA, Congress specifically recognized that air pollution is a transboundary problem. Under 101(b)(4), one of the purposes of title I of the Act is "to encourage and assist the development and operation of regional air pollution prevention and control programs." Section 103, which focuses on research and other activities, may provide additional general support for creating regional groups.

Procedurally, the requirement to establish AQCRs was triggered by the 1970 CAA. There was a deadline associated with the initial designations, and procedures for governors to adjust the AQCR boundaries (with EPA approval and other affected states consent)(107(e)). Arguably, EPA could tap this authority to define new AQCRs (or renew/combine existing ones). Current regulations —40 CFR Part 81, App. B—would need to be revised. FACA might apply to any such AQCRs, depending on what role EPA plays (i.e., does EPA set the agenda) and whether there are more than (federal, state, tribal) governmental bodies represented.

Substantively, there are no statutory requirements related to planning deadlines for AQCRs. EPA could use its general rulemaking authority to provide direction and set deadlines.

EPA cannot use the section 179 sanctions or 110(c) FIP authority or other means to force a state to actively participate in an AQCR; however, like a TC, this group may be able to make recommendations which EPA would consider in deciding whether to issue a SIP call. In addition, to encourage the group of states to perform the identified functions, EPA may provide an incentive by taking its own action in the absence of any specific recommendation from the group. This could be done through prior publication (through EPA rulemaking) of default plans/contingency regulations that would be imposed expeditiously or at some date certain in the event the AQCR fails to produce an acceptable alternative plan. EPA would use SIP calls to require State submission of control requirements (and inventories, monitoring plans, etc.) and can FIP and sanction states that fail to make such submissions.

The advantages of this option are that EPA has very broad authority to include states and other jurisdictions in an AQCR ("necessary and appropriate for attainment and maintenance" vs. "significantly contributes to violations") which should allow expediting the creation of regional planning bodies – or "regional air management partnerships" (RAMPs). EPA also has broad authority to provide direction, funding, and deadlines to ensure that the RAMPs develop necessary plans. Sanction and FIP authority would be available to deal with recalcitrant states. Using the AQCR authority to establish the RAMPs – planning bodies for large geographic scales – might also provide flexibility to develop appropriate, broad-scale emission management programs without automatically and immediately triggering mandatory programs required in "nonattainment areas". The AQCR-RAMP could be directed to further delineate subregional AOVs/AOIs, including areas within which nonattainment area requirements might apply. The disadvantages of this option is that EPA would have rather broad discretion to set requirements and deadlines. The lack of statutorily-prescribed requirements could lead to delays and challenges. The potential applicability of FACA to the AQCR-RAMPs might also be viewed as a disadvantage.

Option 2.c: EPA could use FACA to establish regionally-based advisory committees: EPA could use authority provided by the FACA to establish regional subcommittees to provide advice and recommendations on regional strategies needed to attain and maintain NAAQS and comply with regional haze program requirements. EPA would not need a firm scientific basis for creating FACA groups, and the group's charter and deadlines could be established at the time of creation. As with other options, EPA could not use sanction or FIP authority to force a state to participate actively in regional FACA. However, like a TC, this group may be able to make recommendations which EPA would consider in deciding whether to issue a SIP call to certain states. In addition, to encourage the FACA to provide recommendations, EPA may provide an incentive by taking its own action in the absence of any specific recommendation from the FACA. This could be done through prior publication (through EPA rulemaking) of default plans/contingency regulations that would be imposed expeditiously or at some date certain in the event the FACA fails to produce an acceptable alternative plan. Although it may be difficult to use the FACA authority to require the group to perform any analytical functions, monitoring, data collection, etc., EPA could use SIP calls to require State submission of control requirements (and inventories, monitoring plans etc.) and could FIP and sanction states that fail to make such submissions.

Option 2.d: Use interstate compacts: Under the Compacts clause of the constitution, States can enter into interstate agreements. This authority is expressly recognized and encouraged through section 102 of the CAA. Section 102(a) provides that "[t]he Administrator shall ... encourage the making of agreements and compacts between States for the prevention and control of air pollution." Furthermore, section 102(c) expressly provides that "the consent of Congress" is given for these compacts to the extent that they do not conflict with federal laws or treaties. It also provides consent for establishing "agencies, joint or otherwise" for making such agreements effective. This section also expressly states that such compacts shall not provide for participation by a state that is not included in the relevant air quality control region. The AQCRs are listed in part 81 and currently are quite narrow (similar to nonattainment areas). However, EPA has the authority to revise AQCRs and could define them more broadly.

Procedurally, this option would require no action by EPA but would rely on states and tribes entering into a compact that included creation of a regional institution. In short, this option represents a state-initiated (and controlled?) version of option 2.c. Like a FACA-based group or TC, this group may be able to make recommendations which EPA would consider in deciding whether to issue a SIP call to certain states. In addition, to encourage state action leading to and pursuant to the compact, EPA could provide notice of its intent to take action by a set date in the absence of any specific recommendation. Sanctions, SIP calls and FIP authority would be available if the compact failed to produce timely action.

RECOMMENDATION:

EPA should use its AQCR authority to form RAMPs as soon as possible (e.g. early 1998) to expedite planning efforts. Existing institutions may be willing and able to become the RAMP (perhaps by modifying existing charter) or to carry out some of the functions. The process for identifying and forming RAMPs is spelled out in the RAMP/AOI issue paper. EPA should use its general rulemaking authority to outline RAMP activities and timeframes. Once RAMPs have identified possible "areas of violation" and associated "areas of influence", formation of transport commissions may be appropriate.

2.	WHAT ENTITIES NEED TO BE INCLUDED IN REGIONAL AIR QUALITY MANAGEMENT INSTITUTIONS AND WHAT OPERATIONAL RULES SHOULD THEY FOLLOW?

PRINCIPLES

Regional air quality institutions should include: representation from all levels of government with regulatory authority over sources contributing to an air quality problem; and participation by stakeholders to facilitate the development of understanding between regulators, the regulated community, environmental organizations, academia and the general public. Regional institutions should be viewed as a partnership for policy development.

Membership in regional institutions should be structured in a manner that will facilitate the integration of air quality programs dealing with effects that are created by "the same pollutants from the same sources". Pollutants that cause health impacts, visibility impairment, and damage to plants and animals, are often from the same sources and should be dealt with by having all players at the same table.

The size and structure of a regional institution should not become so large and unwieldy that it would interfere with the efficient functioning of the organization.

Membership will be influenced by the option selected in 1) above (e.g., certain minimum requirements apply to transport commissions and FACA committees; existing organizations may have defined membership). In addition, membership would be a function of the size of RAMPs/AOIs, the degree of overlap between RAMPs/AOIs, the number of AOIs delineated within a RAMP, and the roles (per section 5) assumed by the organization. Membership may vary depending on the scope and nature of the air quality problem to be addressed, and the amount of integration desired.

The decisionmaking process used by a regional institution must ensure that necessary and appropriate regional strategies are developed and implemented. Consensus-based decisionmaking (including adoption of recommendations) is the preferred approach. (Note: "Consensus" needs to be defined, including whether it is based on the views of all participants or only voting members.) Regional processes should be seen as a path to collaborative actions and, optimally, as replacements for inefficient strings of independent agency actions. To the degree it is legally possible, decisions or recommendations concurred to by affected parties should be considered "final" (i.e., state/tribal regulatory authorities would proceed to adopt conforming regulations; EPA would give substantial deference to the consensus decision/ recommendation in any subsequent federal rulemaking/SIP call). Voting should be viewed as a mode of last resort, with the result of the democratic process being given appropriate deference by EPA.

Regional institutions must conduct their processes in a manner transparent to the general public and must provide for public participation in the development of policy. Public review and comment should be integrated into both the formulative and final phases of policy development.

The development of regional strategies must be made with full understanding of their costs and technical validity. All technical and cost data must be subject to a rigorous quality assurance/quality control process. These processes must be stakeholder based and be subject to periodic peer review from independent third parties.

OPTIONS:

Option 1. All states, federal agencies with resource management responsibilities, local air quality agencies, tribes, major industrial sectors, the transportation sector and major environmental organizations within a defined region (to be determined by process outlined in RAMP/AOI issue paper) would be invited to participate in the organization (at the RAMP level, as well as in any subsequent activities leading to development of regionally integrated plan for AOIs).

All policy and programmatic decisions would be made by individuals having statutory authority for controlling air pollution and who must bear responsibility for the consequences associated with the failure to meet statutory requirements, i.e., states, tribes and EPA. Nevertheless, stakeholders should be integrally involved in the policy development process and technical support processes. This inclusive approach would ensure full representation of affected parties in the regional organization. Whereas this approach may work well in regions with small or few AOIs it would likely be too large and unwieldy for regions with large and multiple AOIs.

Option 2. All states in a defined region would be included in the organization. States and tribes would negotiate tribal representation based on unique regional factors. EPA and other federal cabinet level officers with resource management responsibilities (or his/her designee) would become participants along with representatives from local air pollution authorities, major industrial sectors, major environmental organizations and the transportation sector.

Federal cabinet officers with resource protection responsibilities, or their designees, would be included in the process for making final policy and programmatic decisions (along with states and tribes), and may be given voting rights. However, EPA would not vote on recommendations if federal rulemaking would be required to ensure implementation of the recommendations, because EPA would need to follow its rulemaking process prior to adopting regulations. Notwithstanding EPA's legal responsibility to make an independent judgment about the adequacy of state/tribal implementation plans, EPA would be expected to participate as a full partner, identifying any technical or legal concerns as early as possible and streamlining its decision process where possible (e.g., parallel administrative process; direct final actions). This option would not be as democratic as Option 1, but would create a more manageable process.

Option 3. Inclusive participation per option 1 or 2, with voting membership extended to include (in addition to states, tribes and federal cabinet-level officials) all governmental officials with direct responsibility for managing class I areas (e.g, park superintendents, forest supervisor, refuge managers) and/or a select group of representative stakeholders.

RECOMMENDATION: Option 2, with the voting status of federal cabinet-level officials determined by the institution based on the issue being addressed. In addition, criteria and a process must be established that would allow States and tribes: (1) to opt out of a RAMP (or to-be-established AOI-specific institution) if they have been erroneously included, or their participation is no longer useful or necessary (preponderance of the evidence test has been suggested); and (2) to petition EPA for inclusion of additional states or tribes in a RAMP (or AOI-based institution).

3.	WHAT AUTHORITY SHOULD THE REGIONAL INSTITUTION HAVE?

PRINCIPLES:

The authority of the regional institution must be clearly defined. The most essential principle is that the institutional mechanism must be adequate to ensure (directly or indirectly) the timely development, implementation and enforcement of regional strategies.

Duplication of effort must be avoided. States should retain primacy (subject to EPA oversight and FIP authority) to the greatest extent consistent with air quality goals, with responsibility assigned at the lowest level of government practicable. Phased implementation of a new institutional mechanism should be considered.

New institutional mechanism should involve EPA in a collaborative decisionmaking process, including EPA's early and continuing participation, rather than the more iterative current model where EPA often does not weigh in formally until after plans have been developed. This should include developing protocols upfront between EPA and the regional institution outlining criteria, objectives, and technical approach to be used.

OPTIONS:

Factors to be considered in determining an appropriate and efficient allocation of responsibility among state, tribal and regional institutions, and EPA may include: efficiency, consistency, capacity, accountability, sovereignty and enforceability.

Option 1: The institutional mechanism could be designed to convey quasi-regulatory authority to the regional institution. This could be done through interstate/intertribal compacts, entered into voluntarily by the member states and tribes. Congress has already consented to the creation of air quality-related interstate compacts (section 102, CAA); agreements affecting tribal lands would require approval by the Secretary of the Interior and Commission of Indian Affairs (25 U.S.C. 81 (1996)). In order for a compact to become valid and binding on the affected jurisdictions, commitment and consent from all states and tribes that would be subject to the terms of the agreement would also be required. Interstate compacts could specify the strategies to be implemented and the penalties associated with failure to implement (e.g., taxes or embargoes imposed on goods and services exported by non-complying state).

The idea of relying on interstate compacts to ensure implementation and enforcement of regional strategies, thereby potentially avoiding federal regulatory action, may be attractive. If a significant consensus among states and tribes emerges during the regional planning process, then the benefits of each jurisdiction ceding authority to a regional body might include more efficient use of administrative resources, more expeditious actions to reduce pollution, and improved federal/state relationships.

However, this option presents several problems if pursued in lieu of any other options. Obtaining consent from each state and tribe may be difficult, with different legal, political, and administrative processes in each jurisdiction, as well as overarching issues associated with retaining sovereignty. The time needed to perfect the agreement within and between states could exceed time allowed for getting enforceable plans in place. The public's ability to participate in the process, particularly, citizens' ability to seek judicial review or enforcement of the agreement, may be compromised unless the plan ultimately agreed to is incorporated into state or federal implementation plan. Many states cannot include strategies in the federally enforceable air quality plan unless EPA –not other states-- has required those strategies, and few states have citizen suit provisions comparable to the Clean Air Act.

Option 2: Non-regulatory mechanisms could be used to encourage implementation and compliance on a multi-jurisdictional basis, including, negotiation and consensus-building that results in each jurisdiction proceeding to adopt, implement and enforce substantially similar regulations without federal mandates or "approval". The advantages of this approach is that it would be based on voluntary cooperation and could result in more efficient use of resources, more expeditious actions and improved federal/state relationships. However, the disadvantages are similar to those identified for Option 1, particularly if the regulations developed by each state are not incorporated into a federally enforceable plan.

Option 3: The current SIP/FIP approach could be used to ensure implementation and compliance. This would not preclude pursuing Options 1 or 2 on a parallel track, but would give EPA the responsibility to issue SIP calls by some date certain (i.e., establish requirements for state and tribal implementation plans based on or in lieu of recommendations adopted by the regional institutions) and to impose a FIP or other sanctions if one or more jurisdictions fail to take timely action. This approach would be necessary in those states where the existence of a federal requirement is a statutory prerequisite to the adoption of state regulations or the inclusion of a plan or regulation in the federally-enforceable SIP. The RAMPs (and any to-be-established AOI-specific institutions) could provide a forum for consensus-building, with certain timeframes allowed to reach agreement and develop recommendations. If the RAMPs (or evolutionary institutions) are set up as formal transport commissions, certain timelines, substantive and procedural requirements might apply—to both the member jurisdictions and EPA. In any event, EPA would need to make an independent determination regarding the adequacy of the plan, through a public process, before the plan would be federally-enforceable.

The advantages of this approach is that it is consistent with the current statutory scheme, assuming EPA is able (from a technical, political, practical and legal standpoint) to impose and enforce regionally-developed strategies on affected states/tribes.

PROPOSED RECOMMENDATION:

Option 3, with incentives for early collaboration (options 1 and 2) within the RAMPs.

4. WHAT ROLE SHOULD REGIONAL INSTITUTIONS HAVE IN AIR QUALITY MANAGEMENT?

A regional institution formed primarily for the purpose of addressing multi-jurisdictional air quality issues (e.g., multi-state, state-tribal) may have any of a number of responsibilities. At one extreme, the institution may have a very limited role such as providing a forum for states and tribes to discuss shared problems. At the other extreme, the regional institution could allocate emission reduction responsibilities between jurisdictions, require the implementation of specific regional control strategies, and further obligate states or tribes to achieve emission reductions. In any event, the regional institution should have a role in ensuring that a regionally integrated plan is developed for air quality problems that involve interstate transport of pollution.

It is anticipated that many air quality problems within the region will be limited in scope, involving as few as one or two jurisdictions. This paper does not directly address air quality problems where the AOI boundary is completely within one state, and that state assumes full responsibility for solving the problem. Under such circumstances, ad hoc multi-jurisdictional groups are likely to emerge, if necessary, (or may have already emerged) specifically in response to the problem. Consistent with the principle that problems should be solved at the lowest level possible, in cases like this the role of the RAMP in the allocation of responsibilities would be limited. Instead the RAMP would defer to the state and rely on EPA to ensure the adequacy of the state plan. However, the RAMP, as one of its clearinghouse functions, could provide technical assistance, as well as advice and examples to the jurisdictions on different forms this smaller organization may take (e.g., including sample agreements).

It is also anticipated that there will be AOI-scale issues involving interstate transport that could and should be resolved at an AOI (instead of RAMP) level. The RAMP, with EPA concurrence, will assess whether an AOI-based organization should perform some or all the functions described below, and if so, whether they could be performed by existing institutions (e.g., Ozone Transport Commission). If existing institutional mechanisms are not adequate to address AOI-specific issues, the RAMP would recommend the establishment of new organizations. If necessary or appropriate, EPA could act on such a recommendation, e.g., by establishing transport commissions to formalize an AOI institutional mechanism.

If AOI-scale planning is advisable, the RAMP would recommend an appropriate allocation of planning functions between the RAMP and any AOI-scale institution, including an overall emission reduction target. As indicated in the RAMP/AOI issue paper, States and tribes within the AOI (as preliminarily identified by the RAMP) would be responsible for preparing a regionally integrated plan. [Note: if the AOI encompasses the entire RAMP for one or more air quality issues, then the states and tribes within the RAMP would be responsible for RIP preparation]. EPA would provide guidance to the RIP preparers upfront, and use the RIP, if it is available in a timely manner and includes necessary strategies, to issue SIP calls. Otherwise, EPA would base SIP calls on the best information available at the time plans are required. The RAMP could: (1) maintain a role in integrating various AOI RIPs and be poised to make recommendations to EPA promptly as to the appropriate allocation of responsibility should the jurisdictions fail to reach agreement; or (2) defer to EPA to ensure the adequacy of the plans. The RAMP, as one of its clearinghouse functions, could also provide advice and examples to the jurisdictions on the different forms this smaller organization may take, including informal agreements, MOA's, and interstate compacts.

The planning process described above provides a overall procedural mechanism for initiating and completing the RIPs. The remainder of this section outlines specific roles that the RAMP or AOI-based institutions could perform.

POTENTIAL ROLES OF A REGIONAL INSTITUTION

Oversee development of emission inventories: A regional institution may identify appropriate emission inventory protocols, emission reduction credits, and emission factor assumptions to be used by member jurisdictions. The principle purpose would be to ensure that inventories were consistent and comparable.

Oversee regional modeling: A regional institution may identify appropriate modeling protocols to be used by member jurisdictions for the purpose of aggregating results into a regional scale model.

Determine AOV/AOI boundaries: The RAMPs would be expected to identify preliminary AOIs based on guidance from EPA. As part of the RIP development process, final AOIs, which would constitute the control region, would be identified. As explained in the RAMP/AOI paper, EPA would be required to act in the event preliminary and final AOIs are not identified within the prescribed timeframes.

Information clearinghouse: In addition to providing a central repository for technical data (emissions inventories, model results, meteorological data, monitoring data, special study results, etc.), the clearinghouse could ensure the coordinated development of key information needed by member jurisdictions in the identification and implementation of control strategies (e.g., the cost effectiveness of control strategies).

Provide a forum for negotiation and mediation: Regional air quality issues, by their very nature, require agreement between jurisdictions on several important issues, such as the identification of boundaries within which emission reductions will be required, and the allocation of responsibilities for achieving emission reductions. The regional institution can provide a forum to facilitate these discussion.

Develop regional control programs: The regional institution's role could include identifying common local air pollution problems that affect multiple jurisdictions within the region, whether or not the problem itself is regional in scope, and centralizing or coordinating technical support related to strategy development. Further, the institution may have a role in the development of a regionally integrated plan and implementation of regional programs or local programs being implemented to address regional transport.

Recommend reasonable progress objectives for Class I areas: Everyone shares in the enjoyment and ownership of the nation's parks and wilderness areas, but much of the burden to protect the visibility of a Class I area will be on local sources. The regional institution could participate in the setting of reasonable progress objectives, representing the "non-local" interests.

Allocate emission reduction responsibilities: The regional institution could allocate emission reduction responsibilities between the region's jurisdictions, and recommend appropriate EPA regulatory actions. Emission reduction responsibilities could be allocated as the complete solution to an air quality problem (AOV or reasonable progress objective in a Class I area), or as an adjunct to local control strategies addressing the background component of the problem.

OPTIONS

Option 1: Regional institutions with significant roles: RAMPs (two to six) would be formed fairly immediately (e.g., by January 1, 1998), either based on existing organizations/institutional arrangements or by creating new ones. While each RAMP would have similar overall responsibilities, the organizations may differ significantly in terms of charter, by-laws, and scope of authority since each organization should be formed with the region's air quality problems, source mix, physical attributes, and politics in mind. The RAMP would undertake all activities which it deems appropriate to identify AOIs within the planning domain and to provide a foundation and mechanism for RIP development. The RAMP or any subsequently established AOI-based institutions would have a comprehensive role in all aspects of regional air quality management.

The RAMP could play a significant role in establishing control targets for RIPs if the AOI encompasses the entire RAMP or if transport between AOIs affects the ability to achieve air quality objectives. Otherwise control targets would be determined at the AOI level. The RAMP may also be active in the development and implementation of regional strategies that have potential benefits in more than one AOI or RAMP (e.g., an emissions trading program) and in assisting states and tribes in RIP development (e.g., to the extent jurisdictions within the RAMP share common air quality problems.

Principle responsibilities (of the RAMP, with potential delegation to institutions formed for specific AOIs) would include:

•	oversee development of emission inventories

•	oversee regional modeling

•	determine preliminary AOIs/final AOIs and control region boundaries

•	provide an information clearinghouse

•	provide a forum for negotiation and mediation

.	assess feasibility and desirability of integrated analysis and planning

•	develop RIP

•	recommend reasonable progress objectives for Class I areas

•	allocate emission reduction responsibilities

Option 2: Regional institutions with limited roles: Under this option, the regional institution's role would be primarily technical -- e.g., information collection and dissemination, database development, and analytical support. Regional institutions would be formed based on a combination of physical and political factors. Physical considerations would include meteorological and other air pollutant transport factors. Each regional organization would need to be formed initially to develop an adequate technical basis upon which to make timely AOV/AOI evaluations, and to ensure that information from member jurisdictions is kept up-to-date. Principle responsibilities would include:

•	oversee development of emission inventories

•	oversee regional modeling

•	determine AOV/AOI boundaries

•	information clearinghouse

•	provide a forum for negotiation and mediation

PROPOSED RECOMMENDATION

Option 1: Regional institutions (two to six initial RAMPs) with significant roles, with the understanding that some or many functions (other than the preliminary identification of AOIs) may be assigned to AOI-based regional institutions.

5.	WHAT ROLE WILL A REGIONAL INSTITUTION PLAY IN EMISSION TRADING?

PRINCIPLES:

Assuming that the preferred approach to implementing new NAAQS and the regional haze program involves establishment of regional emissions caps and trading programs, regional institutions should oversee the orderly transfer of emission credits between jurisdictions, including developing protocols for tracking, verifying, recording, and otherwise overseeing the conditions of, interstate and other inter-jurisdictional emission reduction credit transactions.

Institutional mechanisms should also be structured to support development and implementation of incentive- and market-based approaches to managing regional pollution problems, including developing positive incentives for upwind areas to reduce precursor emissions. Possible elements to consider include having downwind areas/sources defray some of the control costs at upwind locations in exchange for not having to implement the most costly controls in their area, use of performance goals rather than specific measures, and providing a "bonus credit" for early implementation.

OPTIONS

The regional institution's role will depend upon (1) the nature and extent of regional emissions trading that may be authorized or needed to meet NAAQS or comply with regional haze program requirements; and (2)its overall authority vis-a-vis the participating jurisdictions and EPA.

Option #1: Develop and implement trading program: The regional institution could have a major and central role in an emissions trading program (e.g., designing program, ensuring consistency among states/tribes, certifying and tracking interstate trades, monitoring compliance).

Option #2: Develop trading program implemented by others: The regional institution could establish a framework (e.g., emission targets or caps; allocation/distribution of credits or emission reduction responsibilities) for an emissions trading program, and assign responsibility for managing interstate transactions to a private or public entity.

Option #3: Manage bank for independently implemented programs: The regional institution could provide technical support to independent state/tribal trading programs and manage an interstate emissions credit bank.

Option #4: Refrain from undertaking an active role in emissions trading: The regional institution would not undertake an active role in the emissions trading program. Instead, EPA would develop the framework and components of the program, and manage its implementation.

PROPOSED RECOMMENDATION

The RAMP should initiate discussions concerning potential market-based emission management programs within the RAMP. If RAMP-wide markets are determined to be necessary or appropriate, then the RAMP would decide what role it will play, but at a minimum would develop protocols and a system for quantification and qualification of emission reduction credits to facilitate and assure consistency in inter-jurisdictional transactions. If RAMP-wide markets are not deemed necessary or appropriate, then AOI based institutions would determine whether market-based approaches should be incorporated in the RIP. If the RIP includes market-based programs, the AOI institution would determine its role in overseeing or managing such a program, including developing protocols to insure inter-jurisdictional consistency.