AN EVALUATION 0? SECTION 208
AS A MODEL FOR AIR QUALITY PLANNING AND MANAGEMENT
Prepared for the Office of Transportation and
Land Use Policy,
U. S, Environmental Protection Agency
by
Elizabeth H. Haskell
Second Draft
July 6, 1975
The views contained in this paper are those of the author and
not necessarily those of the Environmental Protection Agency.
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CONTENTS
The Paper's Approach 1
Summary and Conclusions 1
Issue 1. The Scope of Planning/Ma:iagement:
Definition of Comprehensive, Areawide
Approaches 11
Issue 2. Planning/Management Goals and Criteria 16
Issue 3. The Relationship of Planning to Management 19
Issue 4. Duration of Planning: A One-Time Effort
to Produce "A Plan" or a Continuing
Planning Process? 23
Issue 5. The Time Horizon for Planning 27
Issue 6. Who Should Do Areawide Planning? The Role
of State Governments, Local Governments,
Regional Agencies in the Areawide Planning
Process 30
Issue 7. The "Non-Designation" Option 49
Issue 8. Where Does Regional Air Quality Planning and
Management Need to be Done? 49
Issue 9. Time and Money for the Initial Phase of
Planning 52
Issue 10. Management Agencies 57
Issue 11. Public Participation 61
Issue 12. Inducing Institutional Change 63
Issue 13. Role of Sanctions 65
Issue 14. The Impacts of Areawide Planning on Other
Federal and State Air Quality Program
Elements: On Other Types of Federal and
State Programs 67
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The Paper's Approach.
This paper examines Section 208, the areawide water quality planning
and implementation program, to determine its use as a model for the air
quality program.
Section 208 was incorporated into the Federal Water Pollution Control
Act as an amendment in 1972 to structure and help fund a mechanism by
which local governments comprehensively plan and direct management of
wat-»r quality. While 208's implementation is just beginning, it has
already shown effects that can help design a planning/management mechanism
to be incorporated into the Clean Air Act.
Many members of Congress are considering including 208 language
into the Clean Air Act, and this paper intends to show which provisions
could be carried over usefully to the air program and what language needs
to be adjusted to better fit the clean air effort. It is assumed here that
comprehensive, areawide planning is needed for improved air quality manage-
ment:, just as it is essential to water quality management.
The paper compares the water and air quality programs their functions,
the types of organizations involved, the environmental problems they address
and the level of expertise and de_ta for planning. Key legislative and adminis-
trative issues are identified for 208, and then applied to the air program.
Summary and Conclusions.
Section 208 is intended to integrate various federal, state and local
water quality requirements in a manner designed by local governments to solve
locally-identified problems. P. L. 92-500 and EPA guidelines define the
planning process, and the federal and state water quality standards and
technology requirements set the planning goals. Within this framework localities
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2
are given considerable flexibility to design and carry out a management
system.
All water pollution sources and possible solutions are to be considered
in planning. The plan sets policy and devises regulatory and management
programs and the Governor designates state, regional and local management
agencies to carry out the plan. The plan must identify 20 year construction
needs and federal and state funding priorities, set conditions for waste-
water discharge permits, and devise land use and wastewater regulatory con-
trols and management practices, among other key decisions.
208 planning is to be done everywhere in every state. Where there are
substantial water quality problems, the Governor designates the boundaries of
a planning area, and a planning agency which is "a single representative
organization, including elected officials from local governments," which
in almost every case has been a council of government (COG). If the
Governor chooses, he can give local governments the option to initiate their
own 208 designation.
EPA expects that 149 areawide water quality planning areas, in which
95% of Americans live, will be designated by Governors and funded by EPA
by the end of fiscal 1975. These planning agencies will receive $1 million
each, on the average, in federal funds to cover the full costs of two years
of comprehensive water quality planning.
Outside designated planning areas, the states are to perform 208-level
planning, including non-point source analysis and development of land use
and other regulatory and management programs. To date, no 208 funds have
been made available to the states, but a recent Court decision* has said
*Ruling of the U. S. District Court for the District of Columbia, June 5,
1975 (Natural Resources Defense Council v. Train, No. 74-1485).
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3
they are eligible for these federal grants. So far, states have performed
no 208 planning, and EPA has not spelled out their role in regulations.
At the end of the initial two-year planning period, 208 planners are
expected to produce a plan that can meet Section 201 water quality goals, which
include "best practicable waste treatment technology," management on an area-
wide basis, waste treatment management that results in construction of revenue
producing facilities, integrated municipal/industrial treatment facilities,
open space and recreation protection, and other requirements.
This plan must be recommended for approval locally, certified by the
Governor as being consistent with state-drafted basin plans, and submitted
to EPA, along with the Governorrs designation of one or more state, local
and regional agencies that, as a whole, can carry out the plan.
EPA then approves the plan and the Governor's management agency designa-
tions, and, thereafter, conditions for NPDES permits must conform to the 208
plan and construction grants to affected areas are awarded only to 208 manage-
ment, agencies and to conform with the plan.
Each year, the Governor recertifies 208 plans and the EPA Administrator
approves them.
Section 208 authorized federal funding to cover 100% of planning costs
for three years, in which for one year the planning process is developed and
for two years planning is conducted. The authorized funds are $50, $100
and $150 million for FY 1973, 1974 and 1975. Because of EPA delays in
starting the 208 program, the first year's money was lost when it was not
requested. FY 1974 obligations totaled $13.2 million of the $100 million
authorized and the full $150 million will be used in 1975. Thus, while
three years of full federal funding was authorized for designated planning
agencies, two years has actually been made available. Continuing planning
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4
costs are to be funded at a federal grant level of 75%. To assure
availability of funds, EPA provides planning grants through contract
authority, rather than through authorization, and appropriations.
This 208 process can be a model in many ways for inclusion in the
Clean Air Act. The air program needs a carefully structured, federally
mandated, continuing planning process to guide management within designated
regions that are keyed to air pollution as well as political jurisdictional
boundaries. Planning needs to be comprehensive and prepared by politically
accountable officials within a specified, brief period. Deadlines for
planning, sanctions to promote plan implementation and state and federal
plan approvals are all important elements of 208 that fit an air planning
program.
Public participation in air planning should be structured and meaningful,
just as it is intended to be in 208. A one-year period for organization
of the planning process could also be allowed and then time for initial
planning.
As in 208, at the end of this initial planning period, the plan would
be subject to local, state and EPA approvals. The Governor would then
designate one or more management agencies that, on the whole, could carry
out the plan. The plan would guide management, and sanctions would be
applied to ensure compliance with the plan. Federal funding would be avail-
able to conduct the planning in its initial phase and to support the continuing
planning process.
However, should 208 be applied to the clean air program, some adjustments
in t.ie process might be appropriate. Some changes are suggested by difficulties
to date in the implementation of Section 208. Other adjustments appear
necessary because the present and liko.ly future institutional arrangements
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for protection of clean air are somewhat different than for clean water.
Agencies involved, their histories and functions performed compel some
changes from 208.
The first major change recommended here is that local elected officials,
working through their COGs, not be the lead areawide planners in all cases,
as :hey are in almost all 208s. To be sure, local participation is vital.
Local elected officials' involvement in the planning process will help
" *' -r
gain local commitment to plan implementation, in such matters as land use
control and growth management, as they relate to air or water quality. In
the water program, local officials' participation is essential because much
wastewater management is conducted locally. The 208 planning process can
be a way to educate local officials and gain their approval for improved
wastewater collection, treatment, disposal or reuse on a cost-effective
regional basis.
In the air program there is no similar local operational activity, but
planning can be a way to gain local commitment to better transportation
decisions to promote air quality. Regional air plans must deal with sta-
tionary, mobile and areawide emissions, which are regulated by the states
and some localities, but will need to focus heavily on land use and trans-
portation matters, which will be carried out largely by local governments.
Participation of local elected officials who are directly accountable
to their voters for their decisions is important to ensure,public accounta-
bility of 208 and air quality planning decisions.
However, 208 turns the areawide planning process over completely to
regional associations of local officials in designated regions, whether or
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not they are the most effective, responsible planners. State agencies,
which must approve and carry out many aspects of 208 plans, are not included
in any significant way. In only two instances, in Connecticut and Rhode
Island, does the state play a lead role in planning for designated regions.
In the other states, the state water pollution control agencies will carry
out its own planning programs (208 planning in non-designated areas and
303(e) basin planning), as well as issuing permits, setting standards,
approving construction grants and monitoring. Consequently, there are two
water quality planning programs one areawide conducted by local officials
and one state-wide conducted by the state. How, or if, the two are integrated
Into an efficient and effective plan and management system, is not yet clear.
How local officials and their COGs can dictate to the state, without the
state's participation, is not yet determined, and will most likely be decided
on a case-by-case basis over the ensuing years.
This paper recommends a somewhat different approach for the air program
not two planning programs but one integrated, intergovernmental planning
process in designated areas. All major affected state, local, regional and
federal agencies would take significant part, with the lead role in planning
being assigned by the Governor to a local, regional or state agency.
Unlike 208, where the planning process, if not the management process,
is dictated by federal statute, the Governors would design the integrated
air planning system, to conform to general, federal statutory criteria. EPA
must approve the Governor's system. This would make the air quality planning/
management program a more flexible system, that could vary from state to state
Co accommodate varying levels of expertise, types of governmental institutions,
and air pollution problems. The Governors would design an areawide planning/
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7
management process to fit their own states' needs. They would select
planning regions and a lead planning agency for each. The lead planner
could vary, even within a state, depending on the source of the air pollution
problem, existing institutional arrangements and planning expertise. However,
the Governor must provide for participation in an active and structured
way for all levels of government that would likely be implementing agencies.
The stress in these matters would be placed on which agency is likely to be
able to see that the plans are carried out. In 208, while areawide planning
is intended to lead directly to management and plan implementation, this is
not assured and many COG planners will have difficulty ensuring implementation.
In some instances, the Governor may select a large city agency to be
the lead planning agency, or a COG, or in some instances a state air pollution
control agency or a state planning office. Some COGs will not desire or
be able to handle areawide air quality planning. Others will.
After areawide air plans are drafted, initially and annually revised, EPA,
the states and affected local governments must approve the plan. The approved
plans would constitute revisions to the states' implementation plans (SIPs).
The Governor designates management agencies, subject to EPA approval, and to
meet federal criteria.
This intergovernmental, cooperative planning process will be more difficult
initially to structure and start than 208 and more politically strenuous to
achieve than the 208 planning process. The difficult political decisions
in air planning would come at the beginning and during the planning process.
In 208 the tough decisions and fall-out will occur after the initial area-
wide plan is written and awaits local, state and federal approvals. The
link between planning and implementation could be stronger on air planning
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than water quality planning^, with intergovernmental planning and flexibility
in possible lead planning agencies.
This paper suggests other changes in 208, if it is applied to the
air program:
* The Governors in selecting regions for planning would not be
given the "non designation" option. This would be a check on the
power of the states to design the planning/management system.
The Governors could select regions, but not eliminate areas from
the planning process, if the local governing bodies on their own
initiative applied to EPA for a planning area designation and
a planning grant.
* A clearer statement would be included in any air planning bill
that areawide plans are to guide management.
* A clearer statement would be included in such a bill that planning
is to be a continuing planning process, not a one time effort.
Interim outputs could be required after the first year and each
year thereafter.
* A planning horizon of 20 years for long-range planning and a
detailed program planning component for a three to five year
cycle would be directed to be closely coordinated with DOT and
state transportation planning and 208 planning.
* Plans and management systems devised by states and localities
would be reviewed by EPA and need to meet federal, statutory
criteria of economic and administrative efficiency, equity and
political responsiveness in meeting and maintaining air quality
standards.
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This paper recommends several adjustments to 208> so that air quality
plaaning will proceed on a more limited and realistic timetable and in
priority areas. The art of air quality planning is in an undeveloped state.
The 208 process shows that bureaucratic difficulties occur when planning is
to commence everywhere immediately. Also, there is a need to focus time,
money and public attention on air quality problem areas, so a phased air
planning program is recommended.
* Areawide planning would not be done everywhere, as in 208, but
only in regions designated by the Governor with EPA approval.
Areas would be selected because of current or potential pollution
problems, the number of people affected, and a high degree of
complexity of the pollution problem to be planned and managed.
About 100-150 areas would be involved, at least in the first
years of planning. Most of these areas would likely be selected
from the 170 state and EPA list of Air Quality Maintenance Areas.
The 20 to 50 remaining AQMAs would still need plans developed for
them by the state agencies, which would likely be much less complex
and costly than planning in designated regions.
* The initial round of areawide plans would begin immediately.
One year would be allowed for process.development and two to three
years for planning, varying with existing data and planning expertise
and subject to EPA approval.
* 100% federal funding of the initial planning phase should be accorded
the 100-150 planning areas for the period of planning process develop-
ment and initial 2-3 years of operation. The grant would be shared by
all state, local and regional agencies planning for an area, with the
lead planning agency receiving the most money. An additional authorization
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10
would support a major EPA technical assistance program to aid
in development of air quality planning methodology and help designated
agencies set up planning processes. An initial award of 5% of the
planning grant would be given designated planning agencies after
designation, but before a work plan is drafted and the planning
grant awarded. These "front-end" funds would be used to acquire
the skills to draft a proper work plan. Continuing funds would be
needed, probably at a higher level than 208 continuing planning
money.
Several adjustments to 208 are aimed at making' the move from air planning
to air management more assured and yet more realistic.
* Sanctions would be authorized, such as denial of permits to construct
and operate facilities that emit air pollutants, and denial of
highway construction funds or other public works funds, for failure
of states and communities to implement the plan. Unlike 208,
sanctions would clearly apply to secure plan approval, as well as
to carry out the plan.
* More than one management agency should be possible, as under 208,
but a condition of an acceptable plan should be identification of
the lead management agency, and a means and an agency to coordinate
the plan with management, and ensure compliance with the plan.
* Unlike the 208 process, EPA would be authorized to grant partial
or conditional approval of air quality plans before all programs and
powers called for in the plan are authorized. Partial start-up of
management agencies would be possible through conditional approval of
management agency designations, before all powers are accorded,
if the authority is actively being sought. If authority is not
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11
granted in a reasonable time, plans would be disapproved and
need to be redrafted. This will prevent the situation that
may occur in 203, where areavide plans and management agencies
take several years to gain EPA approval.
Issue 1. The Scope of Plann_ing/Il£naj;e:nent; Definition of Comprehensive
Areawide Approaches.
What should be the geographical scope and subject matter covered in the
planning process and in management? Section 208 planning is comprehensive
and areawide, and the air quality program today needs planning of a similar
scope.
By 1972, water quality management had become a complex matter involving
many public organizations, performing many functions to address a variety
of governmental and private water pollution sources. Congress recognized that
some problems, such as non-point sources, and some solutions, particularly the
non-structural ones involving management and land use matters, were not being
adequately considered, and that the various actors were not being coordinated.
The 1972 amendments themselves added many new complex requirements with many
interacting elements and deadlines.
Section 208 was the key program authorized to integrate these various
actors and actions in the water quality management system. All relationships
are to be examined in a planning context and implementation agencies and
actions orchestrated on an areawide basis.
Section 208 is comprehensive by:
* function regulation of discharges and land use is to be
devised. Operation, maintenance, construction and
financing of facilities, technical assistance, research,
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12
monitoring, and enforcement are to be addressed.
Structural solutions to water pollution problems
continue to be emphasized, through construction of
treatment works and technological requirements
for effluent treatment; however, non-structural
solutions are also to be included for the first
time, such as management alternatives and land use
controls.
* sources of pollution all municipal and industrial point
sources and for the first time non-point sources
are to be addressed in both planning and management
phases. Urban runoffs, stormwaters, agricultural,
forestry, mining runoffs and polluted flows from
construction sites and salt water intrusions and
residual wastes disposal are all mentioned. Section
208 is the only provision of the 1972 amendments
that addresses such non-point sources.
* actors all public agencies involved in water pollution and its
control are to be included in the plan (federal, state,
local, regional) and private individuals and groups.
However, after initial planning, the Governor cannot
designate federal management agencies, only state,
local and regional ones.
* technical planning and management planning are both required.
Air planning done to date has been limited mostly to stationary sources,
to be controlled by the application of technological devices, required by
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regulation. Attainment and not maintenance of air quality standards was the
goal of planning, which was conducted mostly by the state air pollution
control agencies in preparation of the initial State Implementation Plans.
Now, air planning needs to be comprehensive, in a manner similar to
208. It would be comprehensive by:
* source stationary, mobile and areawide. All pollutants for
which there are standards should be studied, not just
those violating or threatening national ambient standards,
which is the strategy of AQMP ^ir Quality Maintenance Planning)
* actors all affected federal, state, local and regional agencies
and their assignments need to be examined.
* function planning would consider various alternatives by which
governmental agencies can achieve their goal regulation,
technical assistance, subsidy and tax policy, planning,
land use controls, monitoring and information systems,
construction, operation and maintenance of facilities.
Prevention, as well as control, should be stressed. Technical, as
well as management planning, addressed, with management planning beginning
very early in the planning process.
In the air program there is a constraint to the degree of comprehensive-
ness for planning that can be achieved at the sub-national level. The
federal preemption of pollution controls on new cars (except in California)
eliminates this option as a possible variable for state or local control
to be studied in the planning process.
The geographical focus for 208 planning is areawide, rather than local
or the river basin focus of previous state water quality planning. A
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regional, rather than local, focus is intended to achieve cost-
effectiveness, economies of scale in financing, construction, operation
and maintenance of facilities, in monitoring and other management
responsibilities. An areawide perspective cau also devise equitable
distribution of costs and benefits in water quality management. It is
also intended to generate political cooperation among governmental
units within a metropolitan area, overcoming fragmentation of local
governments. All local political jurisdictions significantly affecting
a watershed are to work together to devise common solutions to common
problems.
While 208 planning is areawide within substate or interstate
regions, the 1972 amendments also provided for statewide water quality
planning to be keyed to river basins. Section 303(e) requires that the
state water pollution control agencies have continuing planning programs
and Section 208 requires the state to certify that regional 208 plans
conform to 303(e) basin plans. As a practical matter, the state will
need also to integrate designated 208 plans with 208 plans prepared by
the state.
EPA-approved designations of 208 regions follow political jurisdictional
boundaries. Most designated planning agencies are COGs or regional planning
agencies which represent most local governments in a metropolitan or rural
region. These organizations were the intended recipients of 208 planning
funds, and usually are the only ones that can meet the law's criteria for
planning agencies to be "a single representative organization, including
elected officials from local governments or their designees...." However,
these COG boundaries in many cases are slightly adjusted for water quality
problems, for instance, to include a significant estuary that lies outside
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13
the COG's boundaries or a lake that serves as public water supply for
the region, or a stretch of river info which the area's wastes flow.
In Virginia, for example, some 208 regions include two regional planning
districts. In a few instances, a single-purpose regional agency has
been designated, Seattle Metro, for example. The idea is to make the
planning and management boundaries match the nature of the water pollution
problem, both in water resources and political jurisdictional terms.
It should be noted here, however, that resultant 208 boundaries are
relevant to water quality problems, but many will not match the region in
which air pollution occurs.
Various existing regions have been mentioned as possible air quality
planning regions. There are reasons pro and con for selecting each:
* 208 areas. A reason for selecting 208 areas to be the air
quality regions is to be able to use land use and growth data
developed in the 208 process, and in many instances, call on
the same regional COG organization to perform the planning.
There is also a need to avoid merely shifting pollutants from
air to water and vice versa. The difficulty with selecting
these areas, however, is that the natural boundaries in which
water pollution problems occur is different from air pollution
problems. Chart 1 shows counties that are both in 208 designated
areas as of July, 1975, arid in a state/EPA approved Air Quality
Maintenance Area. In many cases, center city jurisdictions
in metropolitan areas are in both air and water pollution "problem
sheds" but the boundaries of the problem sheds differ in the
surrounding suburbs. Of the designated 208 areas, 88 contain
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counties that are also AQ.iAs and of these only 26 have identical
boundaries.
* Transportation planning regions, DOT's Metropolitan Planning
Organization boundaries, could be a useful area for planning
if air pollutants are transportation related, but such regions
may not be significant for other air pollutants or for emission
controls by traditional state and local governments.
* Air Quality Control Regions. These areas have been used for
air quality analysis in the past and are relevant to air pollution
sources. However, they do not always account for local governmental
or state boundaries and so are not particularly management-oriented.
* Air Quality Maintenance Areas. These some 170 areas, keyed to
boundaries of Standard Metropolitan Statistical Areas, are relevant
to air quality management systems^ to the boundaries of general
purpose local governments. There is not much data nor planning
experience to date for these regions, but there is not a great
deal for other areas either.
208 provides a good model for the geographical scope of air planning
regions geared primarily to local governmental political boundaries which
must solve the problem, but slightly adjusted to reflect the way air pollution
occurs in land use and transportation patterns.
Issue 2. Planning/Management Goals and Criteria.
Section 208 does not set forth general evaluation criteria by which
208 plans or 208 management agency designations are to be judged by EPA.
Rather, the law specifies the types of problems that must be addressed and
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the various solutions that must be considered. The plans "shall contain
alternatives for waste treatment management and be applicable to all wastes
generated within the area involved,"* and then goes on to specify the point
and non-point sources that must be addressed. The 208 planning process
must also be consistent with Section 201 of the Act, which favors "best
practicable waste treatment technology" for all discharges, consideration
of advanced waste treatment techniques, waste treatment management on an
areawide basis control or treatment of all point and non-point sources of
pollution, construction of revenue producing facilities for recycling,
confined disposal, wastewater reclamation, proper sludge disposal,
municipal/industrial facilities that integrate wastewater management with
solid waste and other waste forms, management which includes open space
and recreational considerations.
Before 208 management agency designations can be approved by EPA,
they must be able to meet nine specific requirements. Most of these
apply to wastewater treatment agencies, such as ability to accept grants,
raise revenues and assess waste treatment charges, assure that each partici-
pating community pays its proportionate share of treatment costs, accept
industrial wastes for treatment. There are two more general requirements,
"management effectively waste treatment works and related facilities," and
"carry out appropriate portions of an areawide waste treatment management
plan."
The general goals of PL 92-500 set forth in Section 101 also apply
to 208 planning and management, as well as all other sections. These
*Section 208(b)(l)
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include "discharge of pollutants into the navigable waters be eliminated
by 1985," "wherever attainable, an interim goal of water quality which
provides for the protection and propagation of fish, shellfish and wildlife
and provides for recreation in and on the waters be achieved by July 1,
1983."
EPA has not set out additional detailed requirements for acceptable
208 plans, calling instead for "implementation feasibility and reliability"
and "public acceptability." The Natural Resources Defense Council has
criticized EPA's "Draft Guidelines for Areawide Waste Treatment Management
Planning," saying that the federal agency should have prescribed details of
an acceptable plan, such as inclusion of a "use permit system" to govern
land management and development practices. However, if the criteria for
an acceptable plan are that specific, within the law or in administrative
regulations, the benefit of localized planning to design a highly individual
management system will be lost. For an air planning/management program general
goals and evaluative criteria need to be statutorily specified, but not highly
specific ones, which would limit the flexibility of the planning program.
The goals for the planning and management system might be attainment
and maintenance of primary and secondary air quality standards. Another
goal would be to prevent significant increase in air pollutants that are
not now a problem in those regions chosen for comprehensive areawide planning.
In addition to stating goals, a law authorizing a regional air planning/
management process would probably want to define general criteria by which
plans and management agency designations will be judged acceptable. These
criteria would be general ones, that are commonly used in evaluating govern-
mental organizations. The plans and management system would need to be able
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to achieve the above goals with:
* Economic efficiency (achievement of the air quality goals at the
lowest economic cost to government and the private
sector)
* Administrative efficiency (the system is achievable or "doable"
by the affected governmental agencies, is adequately
funded, is efficiently organized, and makes doing
business with the government as convenient as possible
for public and private individuals; the system is able
to achieve interagency and intergovernmental cooperation)
* Political accountability (the decision-makers are controlled by
and responsive to the individual citizens who are
affected by the decision. Active and meaningful
opportunities are provided for citizen participation)
* Social equity (the costs and benefits of air quality planning and
management are fairly distributed among affected
geographical areas and among affected individuals.
Negative effects to other social goals, such as trans-
portation, housing, employment are minimized in the process
of achieving the air quality goals)
* Environmental quality (in achieving air quality goals, impacts on
other sectors of the environment will be minimized, such
as water pollution, solid waste problems)
Issue 3. The Relationship of Planning to Management:_.
Planning, no matter how comprehensive and well done, is useless, or
worse, a waste of public time and money, if it is not implemented. Much
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federally sponsored planning has had little impact on public or private
actions and may never have been intended to be carried out. Rather, some
planning has been intended to describe an "ideal" world in planners' terms,
not address "hard" decisions that set budgets, impact regulations and
otherwise affect operational activities.
208 is not intended to be this kind of planning. Rather, it is
planning for management. Implementation of approved plans is clearly
mandated by Congress, both in actual language of Section 208 and other
sections, as well as the spirit of the law. 208 planning is not intended
to be an idle exercise but rather to actually guide management.
Federal sanctions the loss of federal construction grants and
permits are the key statutory devices to ensure compliance with 208
plans. Mandamus proceedings brought either by private citizens or EPA
against non-complying state or local agencies are also possible.
EPA has stressed implementation in the designation of 208 planning
agencies, requiring participating local governmental officials to sign
letters of intent to support a planning and implementation process. In
addition, EPA has stressed that 208 plans must be "doable" politically
and financially.
In the 208 process, planning should be the designing phase, the policy-
setting element of the system, while management is the operational phase,
when policies are translated into action and implemented by one or more
agencies on a day-to-day basis.
The two activities should be performed in tandem, with planning
giving continuous guidance to all management agencies involved in areawide
water clean-up and protection. The 208 plan is the controlling set of
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policies for 208 management.
This same relationship of planning for policy and programming
operations which guide management agencies should prevail in air quality,
too. However, this is not the typical model of governmental behavior,
and as 208 shows there will be difficulties ensuring this relationship.
Despite the statutory and administrative stress on implementation,
many local elected officials do not believe that 208 plans will actually
be implemented. At least at this juncture, some local officials believe
that 208 is just another federally-sponsored water quality planning program,
that will continue only as long as federal funds are available to produce
"A Plan," that may or may not be carried out. This attitude reflects the
history of much planning in this country and the suspicion or hostility
toward planning that dares to become more than merely an advisory exercise.
Typically in the water program, planning has been considered a separate
program function, such as grants or permits, and not regarded as a truly
integrative management tool. In water, many studies and plans have been
drafted over the years, sponsored by a variety of federal and state
agencies, many of which have had little, if any, impact on water quality
or use. The most used plans tend to be the HUD sewer and water facility
plans, and the Bureau of Reclamation and Corps of Engineers multi-purpose
water project plans. Other plans have been made under the comprehensive
water quality planning program authorized by Section 3-C of the pre-1972
water quality law. Other water planners include, the Water Resources Council
and river basin commissions, the U. S. Geological Survey, Soil Conservation
Service, and a variety of state agencies.
The hostility toward comprehensive planning is shared by many persons
within EPA. Consequently, local officials and the states have not received
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a strong and united federal message that 208 plans will be enforced.
The role of sanctions and implementation difficulties are related issues
and will be discussed later in this paper. Suffice it to say here that
policy and program planning are needed in the water program, as in air,
but will be difficult to perform and implement.
There will also likely be resistance within EPA, state and local air
pollution agencies toward comprehensive air planning to lead management
actions, although the history of planning in the air program has been
somewhat different than in water. Not much planning has been conducted and
what has been completed has been done by state and some local air pollution
control agencies in preparation of the initial State Implementation Plans.
These plans, which are not plans in the conventional sense, but rather a
state implementation strategy, a series of processes, that includes
regulations, emission standards, point source controls and permit programs.
Such air planning has been program planning, rather than the resource
planning, that much water planning has been. SIPs have been management-
oriented and the key program tool. They have been implemented more than water
plans. The SIPs have actually directed state and local clean-up efforts.
If an areawide planning provision is included in the Clean Air Act,
it should be clearly stated that it is to drive the clean air programs.
Otherwise, it will just be a waste of time and money. Incentives, such
as sanctions and funds, discussed later, must be strong.
Air quality management plans, federally funded and prepared under the
lead of state, regional or local agencies, would be incorporated as a legally
enforceable component of the SIPs. The plan would be the revision to the
SIP for attainment and/or maintenance.
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Areawide air quality plans would be used to evaluate growth and
development for air quality implications. The plan should direct state,
local and regional management, set policy for enforcement, emissions
standards, control programs on existing sources, new source performance
standards, land use decisions on siting, timing and impact of new stationary
and indirect sources, tax policy and other air quality relevant actions.
In those areas where comprehensive air quality planning is to
occur, the existing AQM and no significant deterioration requirements
would be minimum conditions for planning, but areawide planning would
investigate more issues more thoroughly than is proposed under the existing
regulations.
Outside the comprehensive air quality planning regions, the states
would continue to be responsible for revisions to the SIP for attainment
and to perform Air Quality Maintenance Planning and meet "no significant
deterioration" requirements, as set forth in existing EPA regulations.
The products of these various activities would also be incorporated into
the SIPs. Thus, the SIP would be the overall state strategy for meeting
and maintaining ambient air quality standards and preventing significant
deterioration throughout the state.
Issue 4. Duration of Planning: A. One-Time Effort to Produce "A Plan"
or a Continuing Planning Process.
If planning is an essential element of the clean water and air programs,
then it should not be an effort to produce one document or set of maps
"The Plan" which could quickly become outdated, but be a dynamic and
continuing process to have periodic outputs and impacts.
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A continuing planning process, rather than a one-time activity to
produce a plan,is needed in the air quality program, for the same reasons
that it is needed for water quality management to direct and evaluate
operational units. The planning process should be geared directly to
management, producing usable plans and not merely "wish lists." The plans
would define specific and rational modes of governmental behavior in the
air quality field.
Section 208 calls for a continuing planning program. It says that
"not later than one year after the date of designation of any organization
(to be the 208 planning agency), such organization shall have in operation
a continuing areawide waste treatment management planning process...."
Furthermore, 208 areawide plans shall be certified annually by the
Governor or his designee for consistency with basin plans. EPA has also
required designated 208 planning agencies to identify their continuing
sources of funds.
Although the planning process is to be continued, confusion has arisen
because the specifics of the section call for two years of planning and an
approval process and management agency designation to come at the end of
this period. Furthermore, 100% federal funding is provided for only the
initial two years of planning.
As a consequence, ir.any designated 208 planning agencies are expecting a
major effort to draft the first plan and then nothing more than a minor
effort to revise and maintain it. Some 208 planners have been hired for
only two years.
If 208 planning is to provide the policy guidance to 208 management
systems, it needs to be a continuing planning process, not a two-year
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affair that concludes with the completion of the first plan. This document
will rather quickly become outdated. The major federal funding at the
initial planning phase should be viewed not as most of the financial commit-
ment, but only the initial spur to continuing and more essential planning
in the long term. A clearer statement of this principle could have been
incorporated into Section 208.
A continuing planning process each year assesses new problems and new
perception of old problems, measures resources and directs operating agencies,
It should set specific measurable goals, and then at the end of each year,
evaluate performance of the management system and, with better data and
knowledge, improve the plan each year. In the early years of planning,
the easier issues are addressed or matters handled that demand immediate
attention, such as activities relating to municipal facilities planning in
208. Then in succeeding years, more subtle issues are studied, as well as
earlier conclusions re-evaluated and revised. The shift will be from the
easier engineering type studies to the more difficult policy analysis and
trade-offs affecting land use, pricing policies, transportation policies
and incentives to reduce waste generation.
Chart 2 shows the relationship of 208 planning to management and the
two activites over time.
In its administration of 208, EPA has called for interim outputs from
208 agencies after the first nine months of operations. These outputs would
address those issues that need immediate attention, particularly matters
relating to municipal wastewater facilities construction. Interim outputs
must have the approval of the state water pollution control agency and the
Regional Director of EPA. The idea is that planning will begin to improve
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RELATIONSHIP OF 208 PLANNING TO 208 MANAGEMENT
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the management system as soon as possible and not wait until initial plans
are completed. Each year the management system will be increasingly strengthened and
in some cases changed, as a result of continuing areawide planning. However,
there is no clear legislative mandate for interim outputs from 208 and this
has caused some confusion within EPA on whether such a policy is possible.
Interim outputs from a regional air quality planning process would be
useful, as in 208. New statutory language could be included in the Clean
Air Act that directs a continuing planning program with interim outputs
before the initial plan is completed and approved. 208 also shows that if
planning at a significant level is to continue beyond the initial period in
which full federal funding is available, an assured continuing source of funds
is vital. Provision of such funds, although not the specific state and local
funding mechanism, needs to be required in the law, as an element of an acceptable
planning process.
A difficulty with a dynamic planning process that reevaluates strategies
and goals each year is that it may create the reality, or at least the
impression, of moving targets, periodically changing goals and regulations.
Regulated parties may be reluctant to invest large sums in air pollution
controls if they think state and local rules and requirements might change
quickly. It may be necessary for the planning or regulatory bodies to provide
some assurance to companies and individuals that if a major investment is
made and compliance with existing air quality standards is achieved, that new
and stricter requirements will net be levied on them for a reasonable period
of time.
Issue 5. The Time Horizons for Planning.
Much urban planning, particularly comprehensive land use planning, has
focused so far intt> the future, such as twenty years or for the Year 2000,
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that its assumptions have been wrong about growth patterns, lifestyles and
public values. Wastewater treatment facilities and interceptors have
frequently been designed for a 50 year future and, as a result, induced
unwanted growth to finance the project. Other public works and private
facilities planning, on the other hand, has tended to be too short-sighted,
and the size or placement of such facilities has become outmoded.
Hopefully, both extremes caa be avoided in any regional air quality
plaaning program. Currently the only mention of time horizon in the air
planning program is a ten year focus set out in AQMP regulations. While
a ten year horizon may be more realistic in terms of planning premises, there
are overriding arguments that favor a twenty year time horizon for air
planning.
208 planners use a twenty yiaar time frame, and if air planning follows
this time period, it could more easily use data gathered in the water quality
planning process. It would also facilitate integration of the 208 and air
planning processes, which is a desirable goal.
The mention of time in Section 208 of the Act is that the plan must
identify "treatment works necessary to meet anticipated municipal and
industrial waste treatment needs of the area over a twenty-year period,
annually updated."
A twenty year time frame would also encourage integration of air quality
and transportation planning and nanagement. Federal and state departments
of transportation planning programs operate on a three-to-five year scope
for short-range transportation planning, and a twenty year horizon for
long-range planning. To achieve compatability of air quality with transportation
data and to allow air planning to guide the location and design of transportation
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facilities, a similar time approach Is recommended.
There could be two time levels within the air quality planning
process a three-to-five year planning program tied into a longer-
range projection for twenty years. Whether the short range perspective
was three, four or five years would depend on the time frame of transporta-
tion planning in the particular designated region. The longer range
activities could address transportation and basic land use and growth
assumptions, and offer and evaluate several basic growth alternatives.
Long-term transportation guidance would be provided. The short-range
effort would guide management agencies on a year to year basis. A three-to-
five year cycle to match transportation planning could be used also, in
which strategies and outputs are set with less firmness for each succeeding
year. The planning would revolve around key identified issues pertinent
at that time. At the end of each year, the planning process would evaluate
outputs and progress and revise and make more firm the guidance for the
next years, adding a new year on the end.
There is one final argument in support of the twenty year time frame.
Facilities placement, particularly highways, has been a major growth inducer
in the past in sometimes undesirable ways, at least from an air pollution
standpoint. However, with proper planning, such facilities could be located
to induce desirable growth patterns, to give long term incentives to
satisfying environments. In this way, planning does not just respond to
changing lifestyles, but could actually guide that process.
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Issue 6. Who Should Do Areavide Plarmiup? The Role of State Governments,
LOGal Governments, Regional Agencies in the Areawide Planning Process.
If air quality needs to be planned by regions, should this be done
primarily by the state air pollution control agency, as in the past? Or
should an additional expertise ba built at the local level? Does local
governmental participation mean traditional, general purpose local governments
or rather areawide associations of local elected officials, such as COGs or
regional planning agencies? What should be the role of special purpose
planning and management agencies, such as metropolitan transportation planning
organizations?
Who should do areawide planning is closely tied with the next issue,
who should do management. The current role of state, local and regional
agencies is relevant, but this institutional arrangement can be changed, if
some other division of powers is desirable for future air quality management.
Today, air quality planning expertise is slight, but what exists is
contained mostly within the state air pollution control regulatory agencies.
However, when it receives substantial funds for planning, the recipient
planning organization will acquire the expertise and data, and build an
institutional capability. There may also be an incentive for designated
planning organizations to move into the management field, either in emission
regulation, or land use and transportation management.
In any event, if the areawide planning/management process works as
devised here, who plans will set policy. Some local governments may not
want the air quality planning jo'3, but Congress should decide that they
must participate, because of the need to involve local land use and trans-
portation decision-makers. The issue here is to decide on the degree of
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institutional change desired for planning and management. Then, how to
induce such institutional change is another issue discussed later in this
paper.
The existing institutional arrangements foe air quality planning and
management are somewhat different than they are for water quality.
Much less air quality planning has been conducted by any agency at
any level of government than in water, which is a much older, more established
governmental responsibility. Considerable water planning for water quality,
quantity and various uses preceeded 208. State agencies, as well as federal
agencies, COGs and traditional local governments had all been involved.
For example, some designated 208 planning agencies are considered to be
as much as 40% completed with facilities planning because of previous planning
work, although not with land use and non-point source planning.
By contrast, little air quality planning has been conducted and what
has been done in preparation of SIPs has been the type to direct emission
regulatory programs. It has been done mostly by the state anti-pollution
agencies. Very few local governments and COGs have conducted air quality
planning, nor even included air quality as an element of a comprehensive
lane use plan.
Overall, there is much less expertise and data for planning air quality
than was available at the start cf 208. The ability to predict the impact of
land use and transportation patterns on present and future air pollution
levels is still in its formative stages. One of the major purposes of
setting up a federally funded regional air quality planning program is to
develop this capability.
On the management side, water pollution control has always included a
major local role in sewage collection and treatment. In the last several
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years, numy local governments have assigned this function to a regional
special purpose agency. Water pollution regulation has been a state and
more recently a federal responsibility, along with construction subsidies.
State agencies regulate local governments' wastewater discharges and also
are the principal decision-makers as to which localities receive federal
construction subsidies. Consequently, local officials had incentives to
direct 208 planning, if that planning would transfer regulatory and subsidy
decisions, at least in part, from the state to localities.
Existing incentives to encourage local participation in the air
program are not so strong. There is no public works feature, and allocation
of federal dollars is not at stake. Traditionally, state air regulations
have impacted fewer local decisions than water rules. Local incinerators,
open burning, land fill operations and heating in public buildings have
been affected. However, more recently, with the development of new air
programs, such as significant deterioration, indirect source permits,
transportation controls and AQl-IP, local land use and transportation decisions
will be affected in a major way, although the impact of these new regulations
is not yet clear to most local elected officials. The siting and timing of
growth and development that affects air quality, such as industries, power
plants, shopping centers, parking lots, highways and airports, could be
controlled by the state or other regulatory agencies.
Today, in most areas, the state is the main air pollution regulator,
issuing emission standards, permits, variances, and performing monitoring and
enforcement. There are some major exceptions to this rule, however. In
several big, heavily polluted cities such as Los Angeles, Chicago, New York
and Detroit the local control agency does have a significant amount of
experience and expertise.
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Many local governments have had 110 wish to be involved -in controversial
air regulation, particularly the newer transportation controls and indirect
source reviev.'s, which are not accompanied by the politically popular public
works sweeteners that make water pollution regulation palatable. For
example, Arlington County, Virginia, and Milwaukee, Wisconsin, have gone
out of the local air regulation business and turned their programs over to
the state. In Portland, Oregon, a multi-jurisdictional air pollution control
agency ceased to exist, due to lack of local support and interjurisdictional
feuding.
In the Twin Cities, the areawide Metropolitan Council declined to take
over the air quality responsibilities that the Minnesota and St. Paul
air pollution agencies sought to havn them acquire. The Council calculated
that only headaches and no rewards would flow from air pollution responsi-
bilities, particularly regulation.
The interest of local elected officials in air quality planning would
be limited mainly to their desire to retain control of land use decisions,
zoning and such, and not lose these powers to a state agency in the performance
of areawide air planning. Some COG staff, as opposed to COG policy boards,
may be interested in air planning, if it is a way to secure implementation
of regionally devised land use plans. Many others, however, reflect the
attitude of local officials and are not eager to take on air pollution
headaches.
Consequently, if it is cons^dere.d vital for local governments to
participate in air planning, stronger directives and incentives than are
available in Section 208 will be needed.
Section 208 envisions a substantial amount of institutional change
for water quality planning, shifting responsibility for comprehensive water
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quality planning for i.-r.iy areas from the state water pollution control agencies,
where it had resided, to regional associations of local governments. Planning
decisions are to be made on a sub-state or interstate areawide basis, but to
pro-note regional interests and not parochial local concerns.
The incentives for local participation are the statutory requirement
that 208 planning be accomplished, 100% federal planning money to designated
208 areas and application of sanctions if approved plans are not carried out.
The states also have a role in these designated areas, but not a major
one, and not in the planning process, per se. Governors designate the 208
regions and planning agencies. States set water quality standards and
EPA and/or the states issue NPDES waste discharge permits. The states continue
to set statewide priorities for construction dollars. The state reviews and
certifies areawide grant applications and certifies final plans for consistency
with 303(e) basin plans. Outside designated 208 regions the state must perform
208-level planning, although to date there have been no federal planning funds
for this and no EPA regulations to guide the process. The state may also
perform all non-point source planning statewide, at the Governor's option.
The state coordinates all areawide planning and incorporates 208 plans prepared
by designated agencies into the State's 303(e) plans.
EPA has stressed state involvement in local planning, although it is not
specified in the law. For example, the agency has tried to have every
regional 208 agency include as a full-time or half-time staff member a repre-
sentative from the state water pollution control agency, to be funded by the
EPA 208 grant. This has not always taken place, however, or meant significant
state contributions.
Despite these state powers, the state water pollution control agencies
have resisted the 208 program fearing loss of control over the planning
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process to lower levels of government, whom they believe are unable to
handle the task of proper planning.
The first non-interest or hostility of the states was expressed
in the 208 designation process. The law gave the Governors three choices
in the designation of 208 planning areas: (1) to specifically designate
areas that met EPA's criteria, (.2) to specifically nondesignate 208
planning areas, even though the criteria may be met (this did not preclude
an area's later designation by the Governor), or (3) to remain silent,
allowing local officials at their own initiative to join together to form
a regional 208 planning agency.
Initially, almost all the Governors chose to "non designate" their
whole state. Virginia and Maine were two exceptions. There were several
reasons for this state reaction. In the early days of the 208 program,
the planning guidelines and grant regulations, which later defined the
planning process, had not been issued and the Qovernors were uncertain about
the content of the 208 program. Furthermore, EPA then considered 208 planning
optional and low-priority, so that the states did not feel compelled to make
208 designations where they were not eager to relinquish power to localities.
Subsequently, EPA has called 208 planning mandatory and assigned it the
highest priority among water quality planning activities, and has secured
designations in all but seven states. Only in Rhode Island and Connecticut
will the state be the lead planning agency for every area within the state,
but this will be conducted for regions and with local elected officials
participating.
Another policy that helped secure designations was that EPA, with
outside persuasion, determined that 208 planning must be done everywhere in
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every state. It also told the states that only ]ocal designated agencies
would receive 208 planning money. Thus, if the state undertook its own
208 planning rather than making designations it would have to do so with
state money, or with its federal Section 106 water pollution program grant.
Furthermore, the states would hav^e to have involvement of local elected
officials, and receive the local recommendation of the plans, just as
designated areas would.
To date, state water pollution control agencies are not participating
in any significant way in the 203 planning process in designated agencies,
although state representatives typically serve on 208 advisory committees
and task forces. Yet, they must approve the plans and will likely be
identified in 208 plans as a key management agency, whose powers must be
used to implement the 208 plans.
To what extent local officials will participate in state-directed 208
planning outside designated regions is not clear, since none is occurring.
Thus, the state and local roles are not clearly defined and integrated
in the language of Section 208 and throughout the 1972 water quality
amendments. In part, this results from two different models for planning
contained in the Senate and House versions of the 1972 bill. The Senate
language, which dominates Section 208, followed the pattern of much previous
urtan legislation, favoring a metropolitan agency as the lead planning
agency. The House, on the other hand, used the model of much other nature
resource legislation, giving the lead role to the state agencies. The
final law, in Sections 208 and 303(e) and the permit and construction
grants sections, includes major roles for both, and today the matter of
who is to lead and who is the final decision-maker is unclear.
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Basically, two water quality planning processes are occurring, one
at the state level, directed by state water pollution agencies, and one
at the areawide level, conducted by regional associations of local officials.
It is too early to tell how or if these two processes will be integrated.
These matters will undoubtedly be resolved, either favorably or unfavorably,
on a case-by-case basis as plans are completed and await approvals.
The political difficulty and loss of support for areawide management will
surely occur when plans are written and must be approved at local, state
and federal levels. The Act does not specify at what time or in what way
the two planning processes will be integrated, if at all. But the responsibilities
for linking the various plans seem to lie with the state, and EPA has stressed
this integrating role for the state. Nor does the Act address the political
and legal difficulty that 208 planning agencies will have directing state
implementation actions. Sanctions are directed more at localities than the
states. If the states and localities are deadlocked on some issues, such
as permits or construction grants:, the role of resolving conflicts and
integrating plans will devolve on EPA, probably its Regional Administrators.
What is the ideal role for various levels of government in regional air
quality planning?
The Section 208 program helps show that there are good reasons for major
state involvement, as well as local involvement, in the regional air quality
planning process. Who should lead and be the ultimate control on the process
is the key matter, and implementation of 208 may show that this should vary
froir state to state, involve a stronger role for the state in areawide
planning, a strong local role in state-directed planning, and provide greater
flexibility within the planning and management process.
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The following are arguments for and against the state, regional and
local agencies directing the areawide air quality planning.
State as the Lead Planner
The state air pollution control agencies could have the lead role in
plaining. These agencies have had the principal responsibility for carrying
out the State Implementation Plans and will be the major, and in some states,
the only, implementing agency for emission controls set forth in the regional
plan. Established state emission Units, variance procedures, control
programs, and permit programs would be used. The conduct of planning by
operational agencies provides a high degree of certainty that the plans they
develop will be carried out, at least to the extent that their powers are
involved.
State agencies can ensure that various areas within one state are
treated in a fair and even-handed manner, whereas local action could be
highly variable throughout the state.
A lead state role is also compatible with our federal/state/local
governmental system, wherein local governments do not make policy for the
state. As a practical matter, if local agencies are smaller and less expert
than the state, it is a difficult situation for them to direct the larger
agencies. Furthermore, local governments in the United States receive their
police powers from the state by delegation, and the states could reassume
those powers if they were dissatisfied with local actions.
The difficulty with assigning the lead planning role to the state is
that the local governments and not the states are the main decision-makers for
matters affecting growth and development. Local and regional organizations
also have a key role in transportation planning. While a close tie-in
between planning and implementation for emission controls is possible with
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a lead state role, implementation of any land-use related plans would
likely be handled mostly by traditional local governments or regional
special purpose agencies. It could be that only land use plans drafted
by local officials can ever expect to be implemented locally. If the
state is the lead planner, they -nay not adequately provide for local
contribution to the plan.
Land use decisions, such as the placement of transportation networks,
the direction and type of industrial and commercial development, and the
location, type and timing of residential development, are traditionally local
matters, handled through zoning, subdivision ordinances and the like. Such
solutions could be an important part of many regional air quality plans.
Operation of mass transit facilities are also key local matters in many
areas.
Regional air quality plans even more than regional water quality
plans would likely stress land u;>e solutions. Regional air plans would
probably include emission controls, land use arrangements and transportation
requirements. Many water quality plans will likely stress structural
solutions wastewater treatment facilities but also will need to include
land use matters.
It was also considered very important for local officials to direct
watar quality planning in designated regions, in order to gain their
comidtment to building the necessary wastewater treatment facilities to
serve the region. Local officia.ls would be called upon in the implementation
process to approve bond issues and construction schedules, and assigning
them the planning job was expected to increase chances for implementation.
As the 208 process has developed, it has become increasingly clear that
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better local land use decisions, as they relate to water quality, should
also be a major element of 208 plans. Hopefully, local leaders will be
persuaded in the planning process to carry out needed growth management
and land use measures specified by the 208 plan.
For air planning, there are few articulated growth and land use goals
to which a lead state planner could refer to guide the regional air quality
planning process without local participation. State agencies are reluctant,
and properly so, to adopt any growth policies for local areas without a
local articulation of such values.
There are, however, a few states that have a major capacity to compre-
hensively plan and manage growth, such as Maine and Vermont, but these are
very fev; and even their land use powers are currently politically uncertain.
Another problem is that state air pollution control agencies will have
difficulty integrating air quality with other functional responsibilities,
such as transportation, energy conservation, water quality and open space
plans, although some state environmental departments now handle all these
matters and can achieve integration. Few environmental agencies have any
expertise in transportation decision-making, however.
Local Governments as the Lead Air Quality Planner
The need to integrate air quality with other governmental goals, and
the need for a strong local involvement in land use and transportation
related matters, could argue for a local governmental lead in the air
planning process. Local elected officials also have a high degree of
accountability to the public. Thus, if they decide major trade-offs among
social values, political accountability could be high. General purpose
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local governments cities and counties can meet these needs, but
are limited to their own political boundaries. In those instances where
the city program is larger and stronger than the states, the local agency
will have more expertise to plan for its own area. Unfortunately, the
regional nature of the air qualify problem and the benefits of addressing
growth issues on a regional basi:5 would be lost if planning were strictly
local. Furthermore, many local governments do not have the interest or
expertise to handle air quality monitoring, data gathering, modeling of
future air pollutants and dispersion in the atmosphere. Many will show
hostility to such air pollution alternatives as transportation controls.
lowtiver, for matters relating to land use that are finally included in the
:>lan, there would be substantially greater likelihood of implementation
than if those land use decisions are made by state or regional agencies.
legional Agencies as Lead Planner
Another option is to assign regional air quality planning to either
a regional air pollution control agency, a metropolitan planning agency
responsible for transportation plans or a general purpose regional planning
and coordination body (a COG or state established regional planning
commission).
Single purpose regional agencies are able to provide close coordination
Detveen planning and implementation and throughout the region for their single
func.tion, such as transportation, but are usually unable to integrate air
quality with other governmental concerns. Decision-makers on these regional
sodJes are usually appointed either by the Governor or local governing bodies,
and their political accountability to the general public is low. However,
If the appointees are local elected officials, accountability would increase.
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The multiple purpose planning agencies are able to integrate air
quality, water quality, comprehensive land use, and in some cases trans-
portation, but only in the planning context. They usually perform HUD 701
comprehensive planning and open space planning. Some metropolitan
planning organizations, which conduct regional transportation planning,
are also COGs, but nearly all designated 208 agencies are COGs.
These COGs are staffed by professional planners who, as a rule, have
more comprehensive planning skills than the engineers which staff state air
pollution control agencies. However, most COGs have no specific expertise
in air quality planning, but could acquire this with federal funds.
The major drawback of COGs as planners is that they have only advisory
powers to local governments and no operational responsibilities to help
ensure that their plans are implemented. They are not accustomed to "hard
planning" involving budgets and regulations and direction for operational
agencies, although 208, highway planning and other federal activities are
involving COGs more now in real world planning. Where COGs planning involved
federal or state expenditures, such as for highways and open space, some of
their plans have been used. However, COGs have not been successful in
securing implementation of plans that depend on strictly local action, such
as carrying out of land use and growth objectives. In many areas COGs were
formed in response to federal and state pressure for such regional associations,
and the participating local officials harbor suspicions and resistance toward
the regional bodies, believing them to be competing with and taking powers
away from traditional local governments. In such areas, the assumption that
COGs should do planning because they can speak for local elected officials
is not correct.
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Areawide water quality planning, vhich is being conducted by COGs,
is a. highly relevant experience to air planning in which the regional
planning organizations must sort out management roles for states, local
and regional agencies and devise ways to ensure that the plan is carried
out. Both 208 and regional air plan;; must be based on the same land use
and growth data and projections. Thus, if 208 agencies do the air planning,
coordination is likely to increase.
Some councils of government, particularly in large metropolitan areas,
have been criticized as responding only to the interests of the elected
officials that serve on their boards, and neglecting participation and
interests of the overall citizenry of the region. Since COGs are a
composite of localized interests, in some instances they may not be able
to achieve a truly regional perspective, but only prescribe the lowest
common denominator among affected local interests, the least controversial
solution.
The arguments for state, regional and local involvement are sufficiently
compelling to make the case for involvement of all three levels. In some
areas, federal involvement may also be warranted. Variations in govern-
mental styles from state to state and in capabilities, institutions and
histories argue for flexibility in designating the lead agency for areawide
air quality planning. The tie between planning and implementation should
be very strong, but how this is achieved institutionally will vary greatly.
In most cases, local governments will implement zoning or building permit
reviews and local road programs. Regional agencies and the states will be
involved in transportation decisions, and the state air pollution controls
will most likely be the main regulator of emissions, with much regulation by
big cities as well.
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The 208 approach is that all areas with substantial water quality
problems will be designated as 203 areas by the Governor and the lead
planning agency in each case will be a regional association of local
elected officials. While EPA has tried to structure a state role in
these areas, the law does not provide one. For all areas outside designated
regions, the state will perform 208 level planning. Each level of govern-
ment has its own, separate assignment, its expressed role. By contrast,
in air quality planning, an intergovernmental approach to planning is
recommended a stronger state role in planning within designated regions,
and a more carefully structured local role when the state is the lead
planning agency. Additional flexibility would be allowed in designating
regional planning areas and lead agencies.
In some selected air quality regions, the lead planning agency should
be the state air pollution control agency, for example, in Rhode Island.
In this state there are no strong local air pollution control agencies,
and the state has experience in regulatory activities as well as planning.
It is preparing the transportation control plan for Providence.
In other areas the lead agercy iray be a large, experienced and
powerful city or county air pollution agency that has a permit program and
large surveillance staff. Chicago and Dade County might be examples of this.
In still other areas a metropolitan planning agency for transportation
might be the lead agency, particularly if automotive pollutants are the major
problem. In the Twin Cities area the Metropolitan Council could be the lead
planner. A COG might be the lead planning agency in some regions. For
exairple, in the Washington, D. C. area, the Washington Metropolitan Council
of Governments might be the best selection because this is an interstate
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location and no one state can adequately lead. Also WASHCOG has considerable
experience and expertise in land use, transportation and other regional
planning that relates to air quality.
It is likely that, within one state, there will be a mix of lead
governmental agencies for different areas. Whatever the choice of lead
planning agency, the emphasis should be on which organization is most likely
to develop effective plans, and be able to ensure plan implementation.
Growth and development decisions should be retained at the lowest practicable
level, while attaining and maintaining air quality standards.
No matter who leads planning, participation of other affected govern-
mental levels in the region must be structured and meaningful. Participation
means more than A-95 reviews or other grant and permit certifications. It
means more than public hearings £.nd commenting procedures. It goes beyond
service on advisory groups that meet once every month or two and comment,
briefly, on decisions made elsewhere. It must mean real participation in
policy decision-making early in and throughout the planning process. Also,
the federal planning grant would be shared by all affected governmental
ager.cies.
An appropriate way to ensure flexibility may be to allow the states to
select planning areas and planning system?, to conform to federal statutory
criteria, and subject to EPA review. The Governor could be required to
subtrit to EPA his selection of lead planning agencies and describe the
structured roles for all other affected governments in the area. The
Governor's submission could set out details of' the planning process to
conform to federally specified criteria. Criteria which the Governor must
meet in selecting a planning system and lead planning agencies might include
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those listed in Issue 2. Those that specifically relate to planning
include:
* ability to establish and operate an effective, efficient and
equitable continuing planning program to meet and maintain
national ambient air qualLty standards, prevent significant
deterioration of air qualLty,
* ability to link planning and implementation,
* political accountability in planning,
* public involvement in planning,
* source of continuing planning funds,
* ability to achieve intergovernmental cooperation with major
involvement of relevant federal, state, local and significant
regional organizations,
* ability to achieve interagency coordination in planning, including
ability to link air quality, water quality, transportation, solid
wastes, energy conservation, open space and other economic, social
and environmental objectives.
"he process should provide that locally or regionally developed plans will
leed to be approved and coordinated at the state level.
As 208 designations show, there is a risk that some Governors may
;eek to foreclose local governmental participation in planning, if given
:oo much flexibility. Statutory language and EPA directives and reviews
:ould be provided that would guarantee local participation, even in those
,nst:ances where the lead planner is the state agency. A possibility might
e. to require plans adopted at state direction to be subject to approval by
majority of affected local governing bodies.
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As in 208, special provision should be made for designating
interstate regions where air pollution problems flow across state
lines such as in New York, Philadelphia and Washington. In 208, the
Governors of the respective states cooperate to designate boundaries
having common water quality problems and a single representative
organization to plan for the area. For example, WASHCOG has been
designated on its own initiative a 208 planning agency for the Washington
metropolitan area. All affected Governors must certify completed plans
and designate waste treatment management agencies.
Unlike 208, in some designated air quality planning regions, it may
be useful and necessary to structure a federal role in the planning process.
If federal installations are major air pollution sources, or federal trans-
portation and environmental planning is significant, or if federal goals
and programs are largely affected, the Governor may choose to include
federal agency participation in planning. A federal employee could serve
ful.\-time or part-time on the planning team, funded either by his or her
agency or by the EPA air planning grant.
While Governors have been very reluctant to designate 208 planning
regions, they would likely have & much greater willingness to take part
in the proposed air quality planning system for these reasons:
* The states devise the planning strategy and thus will have a greater
role in air planning than ir< 208 planning, plus the states will feel
that the planning system fits their individual circumstances,
* Federal funds for regional fir quality planning will be available for
use only in designated areavide zones,
* The states must continue to meet the requirements of existing AQMA
regulations for non-designated areas that appear on the list of 170
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selected areas, but without special federal planning funds. Section
105 air program grant funds would be used. In the water program,
Section 303(e) state planning, funds have been available to the
states, and now 208 planning funds must be made available to the
states, as well as Section 105 water quality program grants.
The regional air planning process, both designation of planning agencies
as well as conduct of the planning process, will be more politically
difficult for all parties, particularly EPA, than the 208 water quality
process is. There is no separate, specific assignment for each level of
government as in 208 no separate turf. Parties will be required to work
together, to work out intergovernmental differences at the beginning and
during the planning process. The Governors, in devising their states'
systems, will have to define the process, rather than taking it as a given
from the federal statute. The tough decisions the integration of the
state and local planning processes and goals will be made during planning,
not when separate state and areawide plans are written and must be meshed,
in some unspecified way, either by the state or EPA, as in 208. If these
various role assignments and differences cannot be resolved among levels
of government, much of the 208 or air plans will not likely be implemented.
Thus, the tough decisions on air management will be up-front in an inter-
governmental process, not postponed for some future possible resolution.
It should be noted that intergovernmental planning, rather than separate
roles for each level of government, is not the typical legal model in the
United States, and may require new thinking and innovative program manage-
ment, making this approach a special challenge for federal, state and local
agencies. Of currently authorized programs, the federal coastal zone
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management planning program administered by the National Oceanic and
Atmospheric Agency is most akin to the intergovernmental model. In this
program the opportunity, but not the requirement, for intergovernmental
planning exists. In some areas it is occurring, in others not.
Issue 7. The "Non-Designation" Option.
One way to ensure flexibility in the air quality planning process and
maintain local options as a check on the states' power is to disallow the
"noi-designation" option given Governors in designating 208 planning areas.
In this way, if the Governor does not provide .for planning in a region
tha: wishes to do it, a majority of affected local governing bodies could
ini:iate their own designation. They would apply, in effect, to EPA,
appealing the Governor's decision to leave them out. In this instance, EPA
would decide if the local area meets the federal criteria and if it does,
grant them a planning designation anc planning grant. However, locally
initiated planning processes wil] netd .state participation.
Issue 8. Where Does Regional Ait Qua lity^ Planning and Management Need to
be
In devising an air quality planr.ing program for his or her state,
should the Governor be required to provide for either state or local
planning everywhere? Section 20£ provides, and a recent NRDC initiated
court case confirms, that comprehensive water quality and related land
use planning shall be done everywhere in every state.
For every area which "as a result of urban-industrial concentrations
or ether factors, has substantial water quality control problems," a 208
area shall be designated. For every area outside a designated area the
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state shall act as the planning agnrxcy and meet the same planning
requirements as the designated planning organizations. Initially,
EPA limited designations to urban/?'titustrial areas (SMSAs) that already
had water pollution, defined as "viator quality limited" segments in
the 303(e) planning process. Then, as additional types of designations
cams in and Congressional and local pressures built, EPA expanded
designations to include clean areas threatened by pollution and rural
regLons.
EPA is now revising the 303(e) basin planning requirements to provide
for states to do 208-level planning and may issue state 208 regulations
soon. To date, such comprehensive water quality planning has not begun
at the state level. No federal rioney has been provided the states under
Section 208, but the NRDC court decision said that the states are entitled
to Section 208 grants.
Comprehensive planning everywhere is intended to prevent pollution
problems in clean areas, as well as cleaning up already polluted ones. The
"wall-to-wall" planning requireme-.nt vill certainly consume considerable
time and money within federal, state and local agencies and dilute public
atte-.ntion from the more critical polluted areas. The benefit of such
planning outside designated regions is not yet clear. Non-point sources
must be planned for, as well as point sources, technical and management
planning conducted and construction and regulatory programs devised, despite
the degree of pollution that results and despite the impact on human beings.
208 language expected complicated areawide planning to begin everywhere,
immediately, and to be completed in two years after planning begins. The
"wall-to-wall" requirement when combined with these deadlines was a completely
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unrealistic expectation of large bureaucracies. To be sure, EPA delayed
its own action on 208 for a full year, not moving on the planning designations
until Congressional and interest group pressure grew strong. Chart 3 shows
how EPA actions compared to deadlines provided in the Act. However, had EPA
begun to implement 208 immediately, it is unlikely EPA would have met the
statutory deadlines, and provided for planning everywhere.
Areas chosen for air planning initially could be selected on the basis
of three criteria:
* Severity of pollution which already exists or is threatened in
the near future by growth. Areas where primary or secondary
national ambient air quality standards may be violated within
the next ten years for any pollutant for which there is a
standard would be eligible by this criteria. The highest
priority would be those areas where primary standards are not
attained by July, 1975.
* Numbers of people exposed to the pollution. This usually means
urban areas defined as standaid metropolitan statistical areas
(SMSAs).
* Complexity of the pollution problem. For instance, an area may
meet the first two criteria be'cause there is a severe sulfur
dioxide problem in an urben area, affecting many people, but the
solution is technically incomplicated. A few fuel-burning
sources need to install controls or switch fuels. Such an area
would not qualify for areawide planning.
The first two of these criteria for selection of planning areas were
used by the states in picking most AQMAs. About 170 areas have been
selected as AQMAs by the states and EPA. This number includes some clean
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CHART 3
Task
208 designation guidelines
iss led
Governors' identification
of 208 areas
Governors designate local
planning area and its
organization
208 planning process in
operation
208 plans submitted to
Administrator
Date Specified
by ^Section 208
Jan. 10, 1973
Mid Mar., 1973*
Mid July, 1973
Mid July, 1974
Mid July, 1976
EPA accepts or rejects
Governors' designations
of waste treatment
management agency
Mid Nov., 1976
Date Accomplished
or projected to be
completed by EPA
Sept. 14, 1973
(effective date)
March, 1974, initial
designations and "non-
designations"
149 designations
submitted to EPA and
approved by July, 1975
EPA expects by
July 1979 that all
plans will be locally
and state certified
and submitted to
Administrator
Not yet determined
*The Governors were never asked Try EPA to list eligible 208 areas, apart
fron. actual designations. EPA assumed that all "water quality limited"
segnents of waterways were eligible as 208 planning areas.
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rural areas threatened by energy-related pollutants, but most are SMSAs.
A number of lesser populated regions with severe or threatened pollution
problems may have been left out of this number. Similarly, a number of
areas may have been included that do not require a complicated planning
process. About 100-150 regions would likely be selected in the beginning
years of the air planning process. Most would come from the list of 170
AQM\s.
Issue 9. Time and Money for the Initial Phase of Planning.
Section 208 deadlines for designating planning areas and agencies,
awarding planning grants, completing plans within two years, and securing
management agency start-up are quite unrealistic for water and also for
air planning.
The air planning program should proceed somewhat slower and, hopefully,
as a result, less chaotically. First, EPA should be given a short but
reasonable time to issue program guidelines, defining the criteria
Governors must use in designating planning areas and devising the inter-
governmental planning and management program within each state. Then,
the Governors should be asked to designate areas, based on the federal
criteria, and to set up planning processes that match the needs of their
own states, as well as federal guidelines. One year may be adequate here
for development of the planning process, since the states have begun the
first steps to a planning process in the identifying of AQMAs and initial
AQMA planning. However, the political difficulties of establishing an
intergovernmental process may require additional time in some cases. A
way to handle this uncertainty is to allow a state a small amount of extra
time for process development which EPA riust approve.
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The time required to complete the initial plan will vary, but about
two to three years seems practical, varying with the complexity of the
plf.nning problem, the existing data base and institutions involved. EPA
could decide, within statutory limits, v?hether two or three years is more
reesonable on a case-by-case basis.
»
208 planning agencies, even those that have a major established water
quality planning expertise, believe that two years is not enough time to
do the planning job well. On the other hand, planners may prefer more time
than the nation can afford to wait for improved water and air quality
management, so some deadlines are needed.
In any event, interim outputs would be required from air planners and
partial EPA approval of those products will occur, so that planning can
improve management from the first year, and not have to await completion
of the three-to-four year process.
100% federal grants should be awarded to cover state, local, regional
and, in some instances, federal costs for one year in which the continuing
planning program is developed, and for the first two-to-three years of the
planning process. This will be a major, necessary incentive to state and
local governments to begin areawide air planning. The funds should be
available for use until used, for the beginning years of every region's
planning process, no matter when it begins, and not limited to specific
identified years following enactment.
208 authorization was limited to FY 1973 - 1975, which resulted in
loss; of fund availability when EPA did not initiate the. 208 program
immediately. It also resulted ir a great rush to designate agencies by
the end of 1975 so as not to lose 10C% funding. Those unfortunate 208
plarning agencies that did not receive sn EPA grant by June 30, 1975 will
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only receive 75% aid, as compared to those with 100% approved prior to the
end of the fiscal year. While limiting 100,£ funding to the first 3 years
does legislate deadlines and provide an incentive to federal, state and
local bureaucracies to move, there ace limits to how fast large organizations
can move and how effective the results will be.
The costs of adequate, comprehensive water quality planning are not
yet apparent. About $1 million will be granted to each of 149 designated
ageicies. What will be bought with this money is not yet clear. EPA lost
the first year's authorization of $50 million for failure to request
an appropriation. Program inactivity accounted for obligations of only
$13.2 million of the $100 million authorized in FY 1974. The full authoriza-
tion of $150 million is expected to be spent in FY 1975. For FY 1976 $53
mill.ion was requested for 75% grants.
Since 208 plans are just now beginning to be drafted, none are available
for evaluation. However, it is already apparent that while comprehensive,
brotd-scoped planning is needed, the more comprehensive it becomes, the
more public participation is included, and the weaker the existing data
base, then the more expensive and tiire-consuming planning will be. For
instance, non-point source analysis, which has not been performed for most
areas to date, will take planning agencies considerable time and money as
agencies monitor water quality and dispersed flows, predict future pollution
levels and evaluate alternative solutions. EPA tried to limit the use of
208 funds for original data collection. Existing information sources must
be used, although in some instances there is no existing data.
Hopefully, in the air program, Land use and growth data developed in
the 208 program can be used, as well as 701 and transportation data. However,
in many areas data needed for air quality planning will be weak and time and
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money will be needed to develop it. The methodology of planning and
predicting is also weak and will take considerable time and money to
develop and use. There is a scarcity of planners able to integrate all
sources and functional alternatives. There is .difficulty relating land
use patterns to either water pollution or air pollution.
On the other hand, 208 or an air planning process is designed to
build new institutions, including the new pJ.anners and skills for an
areiwide approach to planning. Until the planning has been done and
federal aid granted, there will be little such comprehensive planning
expertise. Thus, it must be recognized that, building institutions is
expensive, and in many instances money will not be well spent. Also,
considerable time is needed, but it need not be fully accomplished in
tv;o or three years, if the planning process is a continuing one.
208 shov:s that EPA needs to have funded a major technical assistance
program to accompany the planning program to help planning regions with
methodology. With a specific authorization, a team of EPA officials
could be formed to develop, evaluate and disseminate information on such
matters as prediction modeling, carrying capacities techniques and
other planning tools. The team voulc both evaluate existing methodologies
and planning systems, and develop improved ones, as well as disseminate the
information to planning regions in writing, and in person. Team members
could visit designated regions, at the request of the lead planning agency,
to help review methodologies and set up planning processes. This technical
assistance unit would be most helpful in the beginning five years of the
planning/management program. 208 shows that funding of the continuing planning
process is a .key issue and needs to be .assured, in part, by statutory require-
ment. 208 shows that if planning at a significant level is to continue
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beyond the initial period in which full federal funding is available, a
continuing source of funds is vital and the provision of such funds,
although not the state and local funding mechanism, needs to be specified
by Law. EPA regulations say that the 208 planning process is to be
financially self-sustaining. Section 208 authorizes 75% federal funding
of -.he. continuing process. However, financing of the local share of
continuing 208 planning is unclear. Alternatives being considered are a
percentage of user charges imposed by waste treatment management agencies,
ad_ valorem taxes, or EPA could require that a percentage of construction
grants to the operating agency go to planning, .at least until such funds
are exhausted. 208 planning agencies indicate that unless there is an
expressed requirement for management agencies to automatically include
Claiming funds in their budgets, such money will not be made available.
Financing of the state and local shares in the continuing air quality
slanning process will be even more difficult, since there are no public
treatment agencies and no user fees to tap. A possible source of funds
might be to tap a small increment of air quality-related construction funds,
such as the highway trust fund, cr non-air-related construction funds, such
as any federal public works grants.
Certainly, continuing EPA grants fcr state and local participation
in the planning process will be needed, perhaps at a higher percentage
thar. the 75% planning funds provided in 208.
While flexibility should be maintained as to the exact source of
continuing state and local planning funds, it should be statutorily and
administratively mandated that a clear and continuing source of funds be
identified and made available. This is particularly true if planning is
to address controversial issues, be conducted intergovernmentally, and
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provide policy direction to management agencies, all of which will lead
to some unpopularity of that process.
Also, a small portion such as 5% of the federal planning grant for
state or local areawide planning sho-ild be provided after planning agency
designations are approved, but bafore the planning grant is awarded. These
"fr:>nt-end" monies will be used by the planning agencies to acquire staff
expertise to prepare an adequate work statenent.
This initial funding has not been available in 208, and planning
ageicies have consumed more time than was otherwise necessary to write
the work plan and receive the EPA planning grant. Also some agencies had
to rewrite the work plan after the grant was awarded and water quality
experts hired.
Issue 10. Management Agencies.
Key management issues involve the type of management agencies, how and
by whom are they decignated, how is it ensured that management agencies comply
with the plan, and what is involved in getting from planning to management.
Section 208 is quite specific about areawide planning, but unclear
about what a management agency ir> or the relationship of planning to manage-
men: after management agencies are set up, or in what way management agencies
are to get their needed powers, or how several management agencies will be
coordinated. These matters should be more clearly specified if the model is
applied to the air program. Flexibility should be preserved for the
planning process to define the management system. However, the key questions
of partial as well as full EPA approval of management agencies, and the
requirement that all air management be geared to plans and that a lead management
agency be defined should be made in the law.
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In addressing these issues, the weakness of COGs as 208 planning agencies
become clear. They are likely to have difficulties bridging the gap between
planning and management and ensuring that operational agencies comply with
plans.
In 208, the Governor designates state, local and regional management
agencies, one or more, new or existing, which as a whole must be able to
imp Lenient the plan. Most 20S management requirements in the Act pertain to
treatment agencies, but other agencies //ill need to be designated as well.
Theoretically, management agencies might include land use planning and
zoning agencies, state agricultural, forestry, park and other land manage-
nen: agencies, as well as local and regional sanitary districts and regula-
tory agencies. The 208 planners must suggest management agencies, although
the Governor is the one to actually designate these and can deviate from
those recommended in the plan.
EPA has said that 208 plans should include measures to ensure that plan
compliance is monitored and enforced. A coordinator should be identified
for the whole water quality system and given powers to provide for linkages
among several management agencies and between management and the planning
agency. The continuing planning agency may be the initial 208 planning
agency, or the Governor may designate another agency either operational
or planning to be the continuing lead planning agency. The difficulty
with making the lead operational agency the lead planning agency, particularly
if r.hat agency is a treatment agency, i.s that the planner may be persuaded
to recommend treatment solutions over non-structural ones, even if the latter
are better.
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The planning consortium may be granted powers to ensure plan implementation,
In the 208 case the planning agency could have A-95 review powers, but could
alsD be given new powers, such as certification over permits and grants.
Granting operational powers to COGs vill be a difficult process and unlikely
to accur in 208 or regional air planning.
As previously stated, air qialii:y -nanagement agencies are likely to be
the state and some local air pollution agencies for emission controls; state,
regional and local transportation agencies; regional multi-purpose planning
agencies; local land use planning and control agencies for such items as
emission density zoning; and local solid waste management agencies. There
will be no comparable public treatment agencies for air quality that exist
in the water quality field. Powers In -he air field to ensure plan implemen-
tation might include issuance of indirect source permits, or certification
of any pollution source before it could be granted a state permit to construct
and operate a source. Certification for highway funds is another possible
way to ensure compliance with the plan. The other existing powers of state/
loc^.l agencies would also be used.
In 208 there will be difficulties getting from regional planning within
COGf. to management by state, locr.l and regional special purpose agencies.
In many instances, the likely cocrdir.ator for the water quality management
system will have to be the state water pollution control agencies, which may
be c.ifficult, since those agencies are not taking an active part in planning.
The transition from planning to management is inflexible in the 208
statute. The law is not clear, tut implies that management agencies designa-
tior.s cannot be approved by EPA until they have all the powers needed to
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implement the plan. However, some powers, such as new regulatory systems
over land use, new construction prograns to control non-point sources,
or repeal of such constitutional measures a:> Water Rights Law in the
West,-may take man}' years to acquire.
Acquisition of such powers nay take legislative action, voter or
local governmental approval. In the meantine, EPA believes it cannot
grant conditional or partial approval of 208 plans and cannot grant partial
start-up of management agencies. A continuing planning process would assume
management, agencies may undertaki new power*; and actions each year. This
policy is particularly difficult, because EI'A's view on use of sanctions
is that sanctions apply only after the plan is approved and cannot be used
to Induce initial plan approval.
The failure to provide for partial management start-up is particularly
unrealistic when combined with 208 deadlines. The 208 statutory deadlines
are too short to allow any extended political process that will be necessary
to change institutions in a major way, such as shifting powers among levels
of government, passing new laws and building a planning and management
capability.
In the air program, authority for -he FPA Administrator to partially
approve plans or conditionally approve nanagenent agency designations could
be authorized, as long as the stC'ps Lava been initiated to secure the needed
new authority. If the needed approval .is net secured within a specified
reasonable period of time, the regional plan would be deemed disapproved and
would need to be revised, so that it would be implementable as well as able
to achieve the desired air qualjty objectives.
The difficulty with partial approval of management agency start-up,
as veil as the requirement for EFA approval of interim outputs and annual
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areawide plan revisions, is that the^e changes constitute revisions to
the SIPs. This requires public hearings ami a number of time-consuming
procedures for the states and EPA. While i". constitutes an administrative
annual burden, it can also be an opportunity to structure meaningful public
participation in the planning/management process.
Issae 11. Public Participation.
Public participation requirements for Section 208, as well as all other
aspects of PL 92-500 are some of the strongest in federal law, and would
ser/e the Clean Air Act well. The provisions come from Section 101(e)
which says:
"Public participation in th>i development, revision, and enforce-
ment of any regulation, standard, 'iffIt.eat limitation, plan or
program established by the Administratcr (of EPA) or any State
under this Act shall be provided for, encouraged and assisted
by the Administrator and th<> States. The Administrator, in
cooperation with the states, shall develop and publish regula-
tions specifying minimum guidelines for public participation in
such processes."
The subsequent regulations specify these minimum standards for public
participation:
1. Develop a program that will provide informational materials
for public use. at the earliest possible time.
2. Make sure that such information which is to include water
quality data and other pertinent information is conveniently
accessible to the public: at informational "depositories" in ap-
propriate locations.
3. Provide technical and informational assistance "to public groups
for citizen education, community workshops, training, and
dissemination of information to communities."
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4. Develop mechanisms that will ellow interested or affected
individuals and organizations to h ive early consultation
with the agencies on progra-u iratte-s,
5. Work up and maintain lists of individuals who wish to
receive information fron the agency on a regular basis.
In addition, the regulations have Language on the holding of public
hearings. If the state agency's own prjcedires on public hearings are
relitively loose, the agency must fo.^lo-7 th« EPA regulations. A hearing
sho-ild be conducted whenever there is significant public interest.
The regulations also require the s:ate agencies to give the public
at .east 30 days' notice of when a hcsar !.ng i s to take place.
As for the enforcement process, regulations offer a special opportunity
for public participation by requxrinj, the state agencies to:
1. Provide an opportunity Jor pub..ic comment before any settlement
with a pollution source is regutiated.
2. Encourage the public to repcrt violations of water-quality laws.
3. Develop procedures for the. coru.ideration of evidence submitted
by the public.
Any applicant for a federal grant nust submit a summary of the public
participation activity involved in the cevelopment of the proposal.
Many 208 planning agencies rave goi e be/ond EPA regulatory requirements.
Most have established advisory ccirrr.ittec s, o.i which private citizens serve,
that represent a broad spectrum cf public interests. To varying degrees
thes-eadvisory bodies have real irpact or the selection of management alterna-
tives, growth projections and other key plan ling issues.
Perhaps the most substantial way private citizens have molded the
208 process is through the citizen lawsuit. Section 505 of PL 92-500 says
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that "any citizen may comnen.ce a civ Li action on his own behalf" against
any person or government for violation of an effluent standard or limitation
or an order issued by the Administrator or < state. The citizen may also
sue the Administrator of EPA where the ;idmii istrat.or has failed to "perform
any act or duty under this Act w'.iich is not discretionary with the Adminis-
tra:or."
These latter mandamus proceedings lave been the vehicle by which
the Natural Resources Defense Council recently secured the ruling that 208
planning must be done everywhere in eve -y state, and that state 208 planning
mus : be at a comparable level of complexity as designated planning agencies.
The court decision also mandates EPA regulations governing state 208 planning
and calls for 205 grants to states.
EPA water planners admit rather candidly that a key enforcement tool to
secure local approval of drafted 208 plans and implementation of those plans
will be initiation of citizen lavsuils - mandamus proceedings. This makes
Section 505 not only vital to tht administration of 208, but a constantly
used aspect of EPA policy-making for the. program. One can only conclude,
however, that if NRDC and such public interest lav; groups are to be a
chief enforcer of 208, that consideration should be given to federal funding
of these organizations.
Issie 12. Inducing Institutional Change .
If the ideal pattern for ait quality planning and management differs
substantially from the existing arrangements of governmental agencies and
powtrs, how can the change be brought about?
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There are two different approaches to Institutional change induced
from the top down, by federal requirements and federal sanctions for failure
to meet those requirements.
The opposite is a bottom-up approach, 01 which local governmental
officials, state officials and tie general public whoever must be invoJ' ~;
in the change is brought aloni in ths planning process, given planning
and management funds and encouraged ':o participate, and educated about
position in the process of planning. A; the end of the process, they wi]J
see the wisdom of the best implenentation solution and on their own volitic:
car-y it out.
208 language tends toward the top-.lcvm approach, although provision of
local official participation, puMic participation, and planning grants ccu.c.
fron the second. EPA has stressed the second strategy, in part, because it
see;, the role of sanctions as United. Also, EPA has had the unpleasant
and unproductive experience of fcderail^ imposed transportation controls,
which is an example of the top-dcwn strategy.
If EPA continues to pursue its curi ent 208 sanctions policy, institute:
charge will only come about through education and persuasion. Local institu
tioral change is likely to occur only wVere "he need for it is already
perceived and an area is already on the brin<. of such change. In these
instances 208 would be a bottom-up educational, data-generating action. j'i .
degree to which State decision-making over s'ich matters as construction gran
priorities and permit conditions will be sup..reeded by local and regional
decisions is not yet clear.
In the air program, both bottom-up and '.op-down strategies need to be
combined. Federal sanctions and requirement;; to plan and implement the
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>lan need to be conibino.d with fl^xibUity for state and local governments to
espond and federal grants for iaitial and continuing planning.
-SSJe 13. Role of Sanctions.
Congress intended that sanctions -- the denial of permits and grants
>e 3 major force to securing sue:ess of the 208 process. EPA has interpreted
;he Act to say that sanctions ap>ly only afier the plan is recommended for
ipproval by local governments, and approved by the State and EPA. It does
:ot apply before plan approval a~. any Irvel to induce institutional change,
Icwrver, a plan cannot be approved until alj powers called for in the plan
ire authorized. As a result, this fallout will occur at plan approval stage,
jhe.i local and state officials finally see the recommendations, and if they
io not like them, simply refuse ;:o approve the plan, without federal impact.
EPA sees as its only forcing tool before plan approval, to be mandamus
5roi-.eedings against the government that fails to approve the plan, brought
iither by EPA or more likely by citizen groups, such as NRDC.
While some interpreters disagree: with FPA, seeing that sanctions apply
jy general construction of the law to the plan approval process, the law is
:ert:ainly not specific on this point. [f sanctions are authorized under
:he Clean Air Act, they should bo. clc.arly authorized for use before plan
approval, to secure approval of a workable plan.
What should sanctions be in the air program? There are no construction
grants such as contained in the vatei program, which have the most direct
impact on governmental units. Denial or permits to construct and/or operate
fac-.lities which the states and <,ome localities issue could be used. This,
of course, is an indirect effect, hofinj; to.cause industrial and other
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de\ elopers to brir:;; pressure on the noi -com 3lylng government. There is an
eqi-ity question hvre of punishing a pollution source, even if it proposes
to fully control its emissions, because of '.he failure, for example, of a
local government to revise its zoning ordinances. Loss of state and local
105 air program grants is another possible sanction.
Sanctions should be as closely Linked \o the source of the problem as
possible. Loss of permits and funds that §( to the offending town or state
sho ild he the affected items. Loss of federal highway construction funds
could meet this criteria. Other funds :oulc' be affected, such as open
spa-:e and recreation funds, but all BUGi impacts will constrain achievement
of one governmental objective, for example, recreation, for air pollution
corr:rol.
While sanctions are requires, they are in most cases only a negative
force. They can be used to stop undesirable actions, but are very difficult
to :.nduce positive action on the part o:" a state, community or individual.
For example, denial of permits or highway funds are usually not adequate to
persuade a community to fund and construct and operate needed mass transit
facilities. Thus, the educations 1 process o£ planning will be important for
botl local and state officials.
The force of sanctions will be determined by EPA and the states, and
it is unclear how much sanctions will be used even after 208 plans are
approved. Many EPA officials are not e&ger to deny construction grants
or permits, for failure to comply with & 208 plan, even after it is approved.
This policy will be developed, undoubtedly, on a case-by-case basis. Should
no sanctions be regularly applied in the 208 process, 208 plans may be just
another round of federally sponsored plaaninj;, such as 701 planning has become
in IT.any regions.
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l/, ____ The Impacts of Ar fcawi j e P lav ain on Other Federal and State Air
Qii£ UJi. j_± 112 rarn El^'-'-nts: On Ot TO r__ Cyp as_ _o_ Federal and State Pro grams .
Approving a 208 plan, and applying sanctions limits the actions not
onl/ of Jocal governments, but also state and federal agencies. In the
cas2 of water, discharge permits and construction grants will be affected.
In lir, emission standards, permit condLtiois and variances may need to be
revised ba^-ed on the regional pi, ins.
There will be political and adruxnistrat ive difficulties with this,
siri.ze many actions have preceded watc.r Duality planning and will have
preceded air quality planning. .'.OS cam? after many regulatory and construction
dec .sions have been wade. Discharge pe 'mitt have been issued and priorities
set for a3 location of federal ant1 state cons tiuction dollars. There will be
inertia within state and federal agencies tc revise these earlier decisions
basod on planning products. An exception to this, in the water program, is
thaf permits must be reissued periodically and administrators are looking to
208 to provide numbers and justii icat ion for the next round of permits.
In the air program, since 1972 vhen the original State Implementation
Plats were completed, states have set and enforced emission limits, issued
perrits, granted variances, and lequirec' and overseen programs to control
emissions from stationary sources, l^ow these state agencies may have to go
bacl and set stricter requirements or e: isti'ig stationary sources, set
tighter stationary source requirements rnd revise transportation control
pros rams.
Furthermore, when state and federaJ agencies approve plans either
drai ted locally or by the state, those ipprO'/ing agencies are committing them-
sel\es to perform the responsibilities assigned them in the plan. While
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Governors cannot designate federal a^en^ies as 208 management agrncies,
EPA approval of construction priorities, permit conditions and the like
may bs construed locally to be a proiaiss th; t EPA will provide the needed
funis and regulatory actions thac the plan cirects.
Sinilarly, in the air program, if regienal air plans call for
construction and operation of ma.;s transit systems or other transportation
actions, EPA and state approval of thosa pl^ris may be thought to bs a fedn
?nd state funding conmitment and other leeded actions to carry out the pla
In "his way, anti-pollution agencies may be seen as committirg dsijartruuits
of r.ransportation, v;hich may prove to b>> politically and administratively
difficult, unless those agencies take part in air planning. Alternately
state and local transportation departments could review plans and comrnit
thenselves to transportation actions in an approval process.
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