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

Contact: Richard Chastain 205/257-6664

Date: June 1, 1997

TREATMENT OF AREAS IN WHICH AIR QUALITY TRENDS INDICATE THE RISK OF VIOLATING AN AMBIENT STANDARD

Background

For purposes of designating air quality with respect to criteria pollutants, the Clean Air Act divides the country into attainment, nonattainment, and unclassifiable areas. Although State Implementation Plans must provide for "implementation, maintenance, and enforcement" of primary National Ambient Air Quality Standards, the Act specifies only very minimal steps that States must take in attainment and unclassifiable areas that do not contribute significantly to nonattainment elsewhere, regardless of how close those areas may be to nonattainment status. Once an area slips into nonattainment, however, it carries the stigma associated with that designation and is subject to difficult, and in many cases unpopular, requirements for planning and implementing a control strategy to attain the National Ambient Air Quality Standard (NAAQS). Among other elements, the plan must address emissions from existing sources and include more prescriptive control technology requirements and emission offsets for any new sources.

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

In a preliminary review of this issue, the Work Group and the Subcommittee readily agreed that it is desirable to identify areas that are at risk of violating a standard and to seek to avoid such violations. There was a significant difference of opinion, however, about how this should be done and, most importantly, whether efforts to identify and address such areas should be voluntary or mandatory. To focus further discussion on this key issue, the paper has identified a limited set of options that is representative of the spectrum of approaches available for identifying and acting on areas at risk. These are divided into the broad categories of voluntary and mandatory with two options identified for each. (It should be noted that traditionally all such efforts have been voluntary and that prior to adoption of any mandatory program, the legal authority for such a program would have to be explored.)

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

Voluntary Approaches

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

Option 1a - No New Programs

While this option would not involve initiating any new programs, it does not mean that the issue would be ignored. Some states and areas have already recognized that they were close to the line of ozone nonattainment and taken proactive steps such as instituting "ozone action days" and other measures. Business leaders who understand the consequences of nonattainment have been important participants in promoting such activities. Under this option there would be freedom for such actions to be taken unilaterally or through ad hoc agreements with EPA. EPA has demonstrated a willingness to work with areas that take the initiative to avoid or minimize violations and has the flexibility to reach agreements that can be carefully tailored to each particular circumstance and include benefits for acting early. (Attached is a copy of an agreement that EPA has with Corpus Christi, Texas that represents an example.) With the current increase in awareness of air quality issues and the problems of nonattainment, it is likely that more areas will take advantage of existing opportunities to avoid violations.

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

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

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

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

Mandatory Approaches

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

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

Option 2a. - Partial Mandatory Program

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

Option 2b. - Fully Mandatory Program

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

Relation to Other Issue Papers

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

Conclusions

The work group recognizes that states have an obligation to maintain air quality standards and the majority favors EPA undertaking to notify a state if any area in that state appears to be trending toward violation of the standards, advise such state of the types of programs that other states have adopted in similar circumstances to reverse the trend, and provide other information and support as agreed to between the state and EPA. While members of the work group from the environmental community believe that a state s obligation to maintain the standards requires going beyond this and should involve mandatory action to avoid future standard violations, most of the work group opposes such a federal mandate, indicating that it might even be counterproductive. The approach favored by the majority of the work group is generally captured by Option 1b above, and while the environmental representatives would have preferred stronger action, they agreed that Option 1b represents an improvement from the status quo and is therefore preferable to taking no action.

ATTACHMENT

Flexible Attainment Region Agreement Corpus Christi, Texas

What is it?

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

Who is involved in the Corpus Christi FAR?

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

What is in the Action Plan?

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

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

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

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

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

5) The Ozone Action Day program will continue.

How Does It Work?

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

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

2) Increase the number of public announcements about ozone;

3) Set up an ozone hotline;

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

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

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

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

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

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

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

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

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

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

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

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