EPA-450/3-75-079
June 1975
EMISSION DENSITY
AND ALLOCATION PROCEDURES
FOR MAINTAINING
AIR QUALITY
w
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Air and Wasle Management
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
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EPA-450/3-75-079
EMISSION DENSITY
AND ALLOCATION PROCEDURES
FOR MAINTAINING
AIR QUALITY
by
R. K. Brail, D. R. Mandelker, T. A. Sherry,
and G. Hagevik
Center for Urban Policy Research
Rutgers University
New Brunswick, New Jersey 08903
Contract No. 68-02-0278
EPA Project Officer: John Robson
Prepared for
ENVIRONMENTAL PROTECTION AGENCY
Office of Air and Waste Mangement
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
June 1975
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This report is issued by the Environmental Protection Agency to report
technical data of interest to a limited number of readers. Copies are
available free of charge to Federal employees, current contractors and
grantees, and nonprofit organizations - as supplies permit - from the
Air Pollution Technical Information Center, Environmental Protection
Agency, Research Triangle Park, North Carolina 27711; or, for a fee,
from the National Technical Information Service, 5285 Port Royal Road,
Springfield, Virginia 22161.
This report was furnished to the Environmental Protection Agency by
Center for Urban Policy Research, New Brunswick, New Jersey 08903,
in fulfillment of Contract No. 68-02-0278. The contents of this report
are reproduced herein as received from Center for Urban Policy Research.
The opinions, findings, and conclusions expressed are those of the
author and not necessarily those of the Environmental Protection Agency.
Mention of company or product names is not to be considered as an endorsement
by the Environmental Protection Agency.
Publication No. EPA-450/3-75-079
11
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ACKNOWLEDGEMENTS
This monograph was prepared under Contract No. 68-02-0278
between the United States Environmental Protection Agency and
Rutgers University, entitled Contribution of Urban Planning to Air
Quality. Richard K. Brail, Associate Professor of Urban Planning,
Livingston College, Rutgers University, edited the monograph and
contributed to Chpt. 1, k and 5- Daniel R. Mandelker, Howard A.
Stamper Professor of Law, Washington University, and Thea A. Sherry,
J.D., Washington University, 197\ directed the legal research,
contributing to Chpt. 1, 2, 3 and 5- The legal research for the
project was conducted at Washington University School of Law
(St. Louis). Washington University law students participating in
the study in addition to Thea Sherry were Gary Feder, Elizabeth Levine,
David Miller, Stephen Pressman, and Lawrence Singer. Claire Halpern,
J.D., Washington University, 1975, provided additional editorial
assistance. George Hagevik, Chief, Environmental Division, Association
of Bay Area Governments, Berkeley, California, contributed the section
on California in Chpt. 2. John Robson, Project Officer, deserves a
special note of appreciation for his editorial and production assistance.
II
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CONTENTS
Chapter
EMISSION QUOTA STRATEGIES 1-1
Emission Quota Strategies 1-3
Emission Allocation Planning 1-4
Floating Zone Emission Quotas 1-7
District Emission Quotas 1-8
Emission Density Zoning 1-9
APPLICATIONS OF EMISSION QUOTA STRATEGIES 2-1
Cook County Emission Density Zoning 2-2
Jefferson County Floating Zone Emission Quotas 2-3
Jurisdictional Problems in Cook and Jefferson
Counties 2-6
Emission Allocation Planning in California 2-9
The Approach 2-9
Developments from 1973 through mid 1975 2-13
Emission Allocation as a Legislative
Mandate 2-16
California's Approach to Air Quality
Maintanance Planning 2-16
Conclusion 2-17
LEGAL ISSUES 3-1
The Quota Problem 3~3
The Taking Issue 3"8
Conclusions on the Legal Issues 3~13
METHODOLOGICAL CONCERNS 4-1
Current Proportions Allocation 4-2
Future Configurations Allocation 4-5
Earlier Work 4-6
Land Use Planning 4-9
Integrating Land Use Planning and Emission
Quotas 4-12
The Emissions Inventory 4-13
Future Land Use and Transportation
Configurations 4-14
The Development of Emission Factors 4-17
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Source Configurations A-25
Stack Height A-25
Stack Location '4-26
Mobile and Indirect Sources k-27
Conclusion 4-3o
THE FUTURE USE OF EMISSION QUOTA STRATEGIES 5-1
Problems and Prospects 5*1
Recommendations 5~^
Appendix
A IMPACT OF SB 98 - AIR POLLUTION EMISSION LIMITS A-l
B GLOSSARY OF LEGAL TERMS B-i
Technical Report Data Sheet c-1
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CHAPTER ONE
EMISSION QUOTA STRATEGIES
Congressional enactment of the Clean Air Amendments of 1970
significantly strengthened the federal air quality program. As re-
quired by the Act, the federal Environmental Protection Agency (EPA),
2
has adopted national ambient air quality standards, and implementation
plans to achieve and maintain these standards have been prepared by all
the states. State implementation plans contain the enforcement
strategies required by the Clean Air Act, and while emission limitations
i, c
on pollution sources are their principal enforcement technique-^ the
states are also authorized to include land use controls in their im-
plementation plans. These controls may supplement the use of emission
limitation measures that the statute requires.
Emission quota strategies are important as an air pollution control
technique because they provide a link between the control of emissions
at the source through emission limitation measures and the attainment
and maintenance of the air quality standards at regional levels. The
emission quota strategy designates the maximum amount of pollution
allowable in any one area of the air quality region based on an analysis
of present air quality and the assimilative capacity of the air to absorb
additional pollution without violating air quality standards. New
sources of pollution are approved only so long as they meet all
applicable performance standards and related air pollution control
regulations, and the emission quota for the area in which they are
located is not exhausted. Once the emission quota for an area is
exhausted no additional sources of pollution are allowed within that
area.
1-1
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Theoretically, emission quota strategies can be applied to all
pollutants for which ambient air quality standards exist. Practically,
they are best used for particulates and sulfur oxides resulting from
stationary sources. The legal, methodological, and administrative aspects
discussed here will focus on land use and stationary sources. It is in
the controlling of particulates and sulfur oxides from stationary sources
that the few examples of emission quota strategies exists.
Basic to the implementation of any emission quota strategy are:
(1) translation of existing and proposed land use activities into
equivalent pollution emissions; (2) the determination of the maximum
amount of emissions which the air quality standards allow; and (3) the
establishment of constraints on new development which will keep pollution
levels within these limits. While theoretically simple to conceptualize,
this process creates many technical problems of execution which may be diffi-
cult to overcome in practice. One problem arises from the difficulty of trans-
lating land use activities into expected pollutant emission rates. Some technical
work has been done in this area; a basic discussion will follow.
Problems also arise in determining the impact on ambient air quality
standards of a given level of emissions in any one regional sub-area.
This determination can be made through the use of proportional or
dispersion models which relate emissions output to air quality levels.
Difficulties particularly arise in disaggregating data collected on a
Q
regional level to sub-areas within air quality regions. Unless this
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step can be executed, a data base for emission quotas cannot be
provided, since these quotas ape necessarily applied at the sub-area
level.
The completion of these three steps involves the preparation of
a set of emission quotas for each sub-area of an air quality control
region. If the emissions from a parcel of land are known, a basis is
established for the regulation of the emissions through direct controls
applied to stationary sources. Simply, if in a given sub-area a
designated increase in emissions will lead to a violation of the air
quality standards, land development controls can be exercised to prevent
the approval of a new source if that source will encrease new emissions
to a level in excess of the permitted maximum. It is this linkage
between new source approval, pollutant emissions, and maintenance of
air quality standards that sets the stage for emission quota strategies.
Emission Quota Strategies
The recent EPA document on control strategies for air quality
9
maintenance planning and analysis includes a discussion of emission allocation
planning and emission density zoning. Both strategies limit emissions
to prescribed levels within defined areas, and have implications for
land use patterns. These two strategies, along with two others, are
all different techniques for developing and enforcing emisson quotas.
The four emission quota strategies which will be discussed are:
1. Emission allocation planning
(Jurisdictional emission quotas)
2. District emission quotas
3. Floating zone emission quotas
k. Emission density zoning
(Unit area emission quotas)
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The attempt has been to develop a set of new labels for tnese
emission quota strategies because of the ambiguities which exist over
what the terms "emission allocation planning (or procedures)" and
"emission density zoning" mean. As will be seen, the land use planning
implications of these four different strategies vary. As each strategy
is discussed, it is important to remember that they are best used for
stationary source pollutants such as sulfur dioxide and particulates.
The basic elements in an emission quota strategy are the translation
of ambient air quality standards into maximum emission quotas
for each sub-area of the air quality control region, and the application
of the quota on a case-by-case basis to new stationary sources of
pollution as approval for construction or modification of these sources
is requested. In practice, at least four methods exist through which
emission quotas can be applied. The first method does not tie the quota
to a zoning district or specially designated emission quota district
within a municipality, but applies the quota to entire local government
jurisdictions. Each of the other three methods applies the quota to an
area smaller than a local government jurisdiction, but these methods
differ in the way in which these areas are defined.
Emission Allocation Planning (EAP). The most broadly conceived of
the emission limitation techniques centers on placing lids on the amount
of pollutants emitted within defined political boundaries, including
municipalities, and counties. While one work has referred to
this jurisdictional emission quota concept as emission density
zoning, this strategy has been usually referred to as emission allo-
cation procedures or emission allocation planning (EAP). California
has been the most advanced in its thinking about emission allocation
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planning, where a ceiling would be established on the total amount of
emissions in an air basin and this total allocated to sub-areas within
the basin. Extrapolating from the California experience, it becomes
apparent that EAP is a flexible tool which allows local political
jurisdictions a great deal of latitude in dealing with air quality
problems.
Under this procedure the air pollution control agency allocates
permissible emission quotas by local government jurisdiction within its
region. No attempt is made directly to apply the emission quota to
new stationary sources. Instead, each local government may meet its
assigned quota any way it wishes, whether by stationary source controls
or otherwise. This system is attractive because the emission quota
does not necessarily freeze development out of any one sub-area. Each
governmental unit must decide how to allocate its assigned emissions.
This flexibility should allow each local government to meet its emission
quota without adopting overstringent regulations that raise legal
problems (unless, of course, the area has not yet attained air quality standards)
It is this flexibility which is appealing and, at the same time,
potentially dangerous. The allocation of a quota in itself provides no
guidance to the local area, and EAP may be such a loosely-drawn concept
that it would be ineffectual in maintaining air quality. Regulations
would have to be developed to mandate compliance by jurisdictions with
the quotas assigned, and might include mandatory review of land use and
transportation plans as well as monitoring of zoning and subdivision
regulations, including variances. There is no doubt that EAP has appeal
as an air quality maintenance strategy.
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Land use planning is an important component of EAR. The
jurisdiction must be able to determine the kind and magnitude of growth
which can be allowed within the total quality of emissions generated
from different land use and transportation configurations. The
jurisdiction will then be able to make reasonable judgements about what
kind of industrial, commercial, residential, institutional and trans-
portation activities should be encouraged or discouraged.
Clearly, the amount and nature of growth which can be allowed
takes on another dimension when the region is already in violation of
primary standards. In this situation, achievement of standards
necessarily implies stronger controls on existing sources and activities
before growth can be permitted.
The presumption here, of course, is that there exists some fixed
amount of a pollutant which may be generated by sources within the
jurisdiction. However, there exists no suitable mathematical model of
air shed assimilative capacity to derive the fixed emissions ceiling.
Some type of proportional or dispersion model utilizing monitoring data
has to be used to relate expected emissions to ambient air quality. In
1A
the California situation, current shares of total regional emissions
of a pollutant ,are carried forward to future years for each jurisdiction.
Land use planning, then, operates in EAR as a basic reference point
from which emissions in future years are estimated. By knowing aggregate
amounts of future activity, planners can apply emission factors to convert
land use projections into jurisdictional emission levels. These
projected levels can be compared with the quotas, and a determination
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made about the viability of the projected development of the area.
Floating Zone Emission Quotas (FZEOJ. As the name implies, the
"floating zone emission quota" concept refers to limitations on
pollutants generated within an area of specified size which can be drawn
about any specific location within the metropolitan area. For example,
air quality maintenance objectives might include a limiting of emissions
to 2,000 tons of particulates within any one square mile of the air
quality maintenance area. The quotas may be uniform throughout an air
quality maintenance area, or they may vary according to location. The
use of floating zone emission quotas is best seen when evaluating the impact
of a new industrial facility. Given this 2,000 ton per year limitation on
particulates within a square mile, then a circle, containing an area of a
square mile, could be placed about the proposed location of the new
industry, the center of the circle. Thus, if the new industry is estimated
to emit 200 tons of particulates per year, then the one square mile
surrounding the industry must have existing total emissions of no more than
1,800 tons of particulates. The FZEQ concept was developed for use in
Jefferson County, Kentucky.
This variant of an emission quota system has the advantage that there
need be no advance detailed designation of districts within which the
emission quota is to be applied. Any decision to deny approval of a
new stationary source will be deferred until such time as the emission
quota is exceeded. New sources of pollution will be disallowed only
if the quota is exceeded within the prescribed radius of the new
facility. So long as the site on which a source is denied can be
put to some other use, the legal problems that are likely to arise
will be mi t igated.
Unfortunately, the floating zone emission quota system relies in
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part on adequate spacing between sources to avoid over-saturation of
emission quota control areas. If the denial of a permit under the
floating zone emission quota system occurs in an area that is zoned
locally for industry, and in which no other type of development is
feasible, legal problems may arise. These will be discussed in more
detail below.
District Emission Quotas (DEO.). A step down from EAR is a
strategy which limits the amount of pollutants to be emitted during
some time perood from a planning district within a jurisdiction. Thus,
the amount of emissions generated by an industrial zone of 100 acres
might be limited to no more than 200 tons of particulates per year.
Once the emission limitations had been established for a particular
district, new polluting sources would only be allowed if the quota had
not been exceeded. The emission quota districts established could
have the same boundaries as zoning districts. Different kinds of
districts, e.g., residential, commercial, and industrial, would be
permitted varying amounts of emissions. Through this strategy, "hot
spots" could be avoided and air quality possibly maintained.
This approach to emission quota controls can lead to individual
hardships and legal complexities because decisions to allocate permits
for new sources will presumably be made on a first-come basis. Hence,
each proposed source will be allowed until the full quota has been
exhausted.
Assume, for example, that a facility is proposed which will utilize
90 per cent of the emissions allocated to an emission quota zoning
district in a relatively small area of that district. The air pollution
control agency might well take the position that the allocation of
1-8
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emissions to this facility is "unfair". First, the allocation to this
single facility will exhaust too much of the quota. Second, the
emission quota ought to be more evenly distributed among polluters
located within the district. This position will be very hard for the
control agency to defend without some supportable criteria under which
it can be made, and those criteria are difficult to discern. In
particular, there is no guarantee that a refusal of approval to a
"heavy" polluter guarantees the arrival, soon thereafter, of a series of
"light" and area-extensive polluters that would utilize the emission
quota in smaller increments. The market cannot be relied upon to behave
in so precise a fashion.
Therefore, the control agency will of necessity be forced to dis-
tribute available emissions on a first-come basis. In the case discussed
above, if an early entrant exhausts a substantial portion of the emission
quota he will foreclose entry by other, and possibly lighter, polluters.
In this situation, legal problems may arise due to the manner in which
the emission quota has been allocated. The question is whether a first-
come basis for allocating the emission quota is legally defensible.
Even more serious legal problems will be presented if the next-in-line
polluters find that they can make no reasonable use of their land if
they are denied the polluting facility they had proposed. These legal
questions will be discussed below.
Emission Density Zoning (EDZ). This phrase, "emission density
zoning," has been used to cover a widely varying group of different land
use-based air quality management strategies. For example, Bosselman,
et al. uses the term to encompass both emission allocation planning
and district emission quotas. For our purposes here, emission density
1-9
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zoning (EDZ) will be defined as an air quality maintenance strategy which
requires that emissions of a pollutant be limited to prescribed levels
for a selected unit area. Thus, EDZ might be more properly labelled
"unit area emission quotas."
It is important to understand that EDZ is perhaps best conceptualized
as an emission quota assignment to a fixed unit of land in single
ownership. The pollutant limit could be developed in terms of an amount
per unit area per time period specific to a particular land use category.
For example, an EDZ regulation might specify that a heavy industrial
facility seeking to construct in a municipality must emit no more than
two tons of particulates per acre of lot size per year. Hence, a 100
acre establishment classified as heavy industry would have to certify
that it would emit less than 200 tons of particulates yearly before being
allowed to construct.
It Is not necessary to tie EDZ to land use zoning, as is done
in this example, but it may be advisable for enforcement reasons.
In this example compliance can be achieved within the existing zoning
framework by each source as requests for approval are presented, since
each source can comply with the quota by purchasing the necessary
amount of additional land. Practical problems of implementation may
arise, however, if no land is available for purchase near the site of
the stationary source, or if owners of available land hold out for
premium prices. Unwanted dispersal of new sources may result.
Alternatively, low density development may be produced by heavy polluters
forced to buy large amounts of land in order to meet the emission limitation.
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NOTES
1. 42 U.S.C. Sec. 1857 et seq. (1970).
2. 42 U.S.C. Sec. 1857C-4 (1970).
3. 42 U.S.C. Sec. l857c-5 (1970).
4. See 42 U.S.C. Sec. 1857C-6 (1970), authorizing EPA to set performance
standards for new stationary sources of pollution.
5. See Natural Resources Defense Council v. EPA, 489 F.2d 390 (5th Cir.
1974).
6. For discussion see F. P. Bosselman, D.A. Feurer, £ D. L. Callies, EPA
Authority Affecting Land Use, Ch. Ill (1974) C Hereinafter cited as
Bosselman 3; Mandelker & Rothschild, The Role of Land-Use Controls in
Combating Air Pollution Under the Clean Air Act of 1970, 3 Ecology
L.Q. 235 (1973).
7- See United States Environmental Protection Agency, Guidelines for
Air Quality Maintenance Planning and Analysis, Vol. 3- Control
Strategies, II-3 to 11-10 (1974) C Hereinafter cited as Guidelines,
Vol. 33-
8. See United States Environmental Protection Agency, Guidelines for
Air Quality Maintenance Planning and Analysis, Vol. 13: Allocating
Projected Emissions to Sub-County Areas (1974), for a discussion of
a methodology for sub-county allocations.
9. Guidelines, Vol. 3-
10. Guidelines, Vol. 3., H-1 to 11-14.
11. Bosselman.
12. Livingston and Blayney, Report on Guidelines for Relating Air
Pollution Control to Land Use and Transportation Planning in the
State of California (1973) C Hereinafter cited as Livingston and
Blayney 3-
13. Guidelines, Vol. 3, I 1-1-
14. Livingston and Blayney.
15- Bosselman.
16. This technique has been explored in work done at the Argonne National
Laboratory. A. S. Kennedy et al., Final Report on Air Pollution/Land
Use Planning Project (1973).
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CHAPTER TWO
APPLICATIONS OF EMISSION QUOTA STRATEGIES
There are a limited number of applications of emission quota
strategies. Two case studies of actually implemented emission quota
strategies will be discussed. Jefferson County, Kentucky and Cook
County, Illinois have used emission quota systems. However, while
Jefferson County Air Pollution Control District has maintained and
improved its emission quota system, the Cook County Environmental
Control Department has now abandoned its emission density zoning
exper iment.
Local experimentation with air pollution control techniques has been
possible in these two states, Kentucky and Illinois, because local
agencies have been given enforcement powers, partly because of
difficulties in enforcement programs at the state level. In Illinois,
the state air pollution control agency did not delegate enforcement
responsibility to each county but assumed control over implementation
2
programs. Cook County, however, had already developed an environ-
mental control department and air pollution ordinance, so that both
the state and county agencies have enforcement authority within the
county. Control over air pollution in Kentucky had been centered in
the state Air Pollution Board with limited local enforcement provisions.
Kentucky's implementation plan modified the enforcement structure by
authorizing the Kentucky Air Pollution Board to create air pollution
districts with concurrent enforcement powers. The plan had also pro-
posed a set of exceedingly stringent pollution standards, but after
/,
widespread protest these standards were dropped. The application
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of emission quota strategies in Cook County and Jefferson County will
be discussed in detail, followed by an examination of the proposed use
of emission allocation planning in California.
Cook County Emission Density Zoning
Cook County was one of the first in the country to set local air
pollution performance standards for industry. For more than ten years,
the Cook County Environmental Control Department had performance stan-
dards which measured pollution in pounds/acre/year. In this way, the
standards combined the measurement of pollutant emissions by each
plant source with pollutant density by area. This approach is an
emission density zoning system to the extent that emissions are measured
on an acreage basis. Plants could reduce their unit area output by
acquiring more acreage, thus foreclosing the possibility that additional
plants would locate nearby and use up the pollutant allocation for that
area.
In 1973 this EDZ technique was abandoned, and the county
ordinance now measures emissions through stack sampling and a
process weight rate approach. This system estimates stationary
source emissions by plant input and output, and no longer uses land
Q
area as a component of the performance standard. Monitoring
stations in the county measure ambient concentrations 30 feet above
Q
ground level. Since emissions are not related to a fixed
land area, the Chicago ordinance can no longer be classified as
emission density zoning. By changing to process weight rate measurement
and removing the spatial factor, the county turned away from an emission
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density concept and has, in fact, abandoned it.
Cook County abandoned the earlier EDZ technique because the burden
of compliance fell more heavily on smaller stationary sources. In
theory, any plant, large as well as small, could meet the EDZ standards
of the old ordinance without problems so long as it acquired a large
enough site to control its emissions. The more land owned by the
industry, the more a plant could emit. While any polluter theoretically
could buy enough land to meet the EDZ unit area quota the system in
practice was biased toward the larger sources. A larger source usually
had the funds to buy more land if necessary, and larger sources usually
10
had easier access to additional land for purchase. Hence, the
Department believes that the old ordinance was unfair to small polluters.
The new process weight approach places a heavier compliance burden on
larger sources. They emit more pollutants and so must adopt more
stringent measures to reduce pollution emissions.
Jefferson County Floating Zone Emission Quotas
The emergence of an environmenta' concern in Jefferson County is no
surprise. Jefferson County is the home of the first Ecology Court in the
country, ecology has been an important political issue, and the county
has had an air pollution control district since 1971 to administer its
11
air pollution control program. The air pollution control ordinance
enacted by the district is generally similar to those enacted by other
air pollution agencies, although it does not include the detail found in
12
some other air pollution codes. What is innovative in the ordinance
is the section authorizing emission quotas.
This section grew out of an emissions inventory conducted by the
district, which indicated that the industrial pollutants, sulphur dioxide
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and particulates, were the major source of pollution. While the
district Board found that compliance with emission limitations could
be achieved on an industry basis, this approach did not produce an
acceptable region-wide ceiling on air pollution. Using the year 1975
as a target, the Board sought to develop a plan to overcome this problem,
and to determine the maximum tolerable levels of industrial pollution
for the county. Working with atmospheric dispersion models (principally
EPA's Air Quality Display Model), the Board established maximum limits for
particulates and sulphur oxides. Once these limits were calculated, the
Board partitioned the entire district into sections, and imposed area
18
limitations on pollution output on each section. Using this method-
ology, the Board concluded that a circular area of one mile radius in a
heavily industrialized area could not exceed emission limits of four
thousand tons of particulates per year and eight thousand tons of sulphur
19
dioxides. If no area exceeded these limits, it was estimated that
federal ambient air quality standards would not be violated. The Board
realized that it was proposing an unusual approach to air pollution
control. The proposed emission quota standard is more far-reaching
than the conventional emission limitation strategies contemplated by the
C1ea n Air Ac t.
Originally, the Board planned to use an atmospheric dispersion
model as the basis for setting different emission quota standards for
20
different sections. This approach was dropped, and the controlling
provision of the district's ordinance establishes a four thousand ton
particulate and eight thousand ton sulphur dioxide limit for all circular
areas of one mile radius. (This translates into 1270 and 2550 tons per
sauare mile, respectively). The decision of the Board to impose the quota
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in this manner avoids the possibility that the emission quota might have
been challenged as inequitable. Developers could have argued that differential
emission standards for different sections of the district were not justified.
In addition, varying emission quota standards by sections would have en-
couraged the shifting of existing polluters into less polluted areas,
21
thus dispersing but not reducing pollution in the district.
Although the district Board takes pride in its emission quota standard,
it must be observed that the district's success to date in reducing air
pollution is due primarily to very tough enforcement of traditional stack
and point source regulation.22 Moreover, the emission quota has been
used and enforced in practice without a major protest.
As each new source comes up for approval, its effect on the emission
quota is determined by estimating its emissions in an area within
one mile of the proposed facility. New sources can be approved so
long as the established uniform quota for the district is not violated
within this radius. This system is an example of the floating emission
density zoning concept.
Two industries have so far been denied the right to build or expand,
but the denials were not challenged and in one case the industry relocated
2/1
to another area of the district. There is potential for a test case.
Along the Ohio River there are 2000 acres of undeveloped land which have
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been purchased by a local public Riverport Authority. The Authority is
determined to use these acres to build a riverport and to develop new
industry around it. However, the land in question is part of a larger
area in which no future growth is permissible under the emission quota
25
ordinance. The scene is set for the Board's denial of the Authority's
26
request for a permit to build.
Jur.isdictional Problems in Cook and Jefferson Counties
In both Louisville and Cook County, jurisdictional conflicts have
arisen between the pollution control and zoning agencies. Emission
quotas in their purest form require more than the traditional air
quality enforcement effort. To function at their optimum, emission
quotas require the coordination of air pollution standards with land
use planning and controls. These functions by definition are delegated
to the planning and land use control agencies.
In Chicago, the Cook County Building and Zoning Department has
jurisdiction over the unincorporated portions of the county. About
127 municipalities make up the incorporated area of the county, and
have been granted the power to zone within their own areas by state
enabling legislation. The Cook County Environmental Control Department
(ECD) has jurisdiction over both incorporated and unincorporated areas
in the air pollution control program, but the ECD program must take
27
account of and be coordinated with local zoning regulations. To
maintain air quality, all county departments must also cooperate to
28
keep up the emission inventory on an industry by industry basis. In
addition, the county Board and Zoning Department enforces the zoning
29
ordinance, which also contains zoning performance standards. However,
the ECD enforces the county's air pollution control performance
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standards as well as those required by the EPA.
Construction of a new industry begins with submission of a de-
tailed plan indicating where it will locate, the manufacturing process
to be used, and proof of compliance with air pollution control standards.
The plan is reviewed by the County Zoning Department to determine zoning
31 32
compliance and is then sent to ECD. Air pollution controls are en-
forced through a permit system which reviews plant operation, not land
use. ECD determines what plant controls will be necessary to ensure
compliance with national ambient air quality standards and compliance
with the county air pollution control ordinance. In order to obtain a
location and construction permit from ECD, the industry must show that
it can meet the required standards. When the plant is completed it
must also meet air pollution control operating standards before it can
receive an operations permit from ECD.
ECD cannot direct either the county or the municipalities on how
to zone for industrial, residential or business uses, and must accept
present and future land use patterns as determined by the county and
municipal zoning ordinances. Without direct control over the use of
land, the Environmental Control Department has little influence over
the zoning pattern. The result is that the Environmental Control De-
partment has the scientific knowledge to determine what areas are too
heavily zoned for industry, but has no means of preventing a municipality
34
from zoning for industry if this zoning is not indicated. In
addition, although ECD has enforcement powers in its permit system, it
has not used its permit process to prohibit construction at locations
considered undesirable from an air pollution standpoint. One
observer believes that emission density control with these limitations
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is after-the-fact regulation.
In Louisville, emission quota standards are not considered a
zoning device, and the Board avoids even mentioning the word zoning in
its ordinance. Furthermore, the Board willingly accepts the lack of
professional planners on its staff. Planning and zoning powers are
exercised by the Jefferson County Planning and Zoning Commission; this
agency agrees that as emission quota standards are actively enforced
these standards will preempt local zoning ordinances. Both the
Commission and the Board also agree that a super-agency should be
created to achieve the necessary coordination, with existing agencies
merely providing the information needed for regulation. There are other
problems. First, even if court approyed, the air pollution district's
reliance on atmospheric dispersion models as the basis for the numeric
estimates of emission quotas may be misplaced. These models are not
completely reliable. Second, the district has never bothered to
38
deal with industries whose stack heights are less than 30 meters.
Third, in order not to completely discourage growth, the county-wide
39
limits on pollution are set at rather high levels. The result, of
course, is that pollution must be tolerated in areas where currently
there is very little.
The emission quota controls implemented by the Jefferson County
Air Pollution Control Board are limited as a land use measure. The
Lousiville area will not provide a good model for combining land use
and air pollution control functions until land use impacts are more
explicitly considered in the emission quota strategy. Nevertheless,
the Louisville system remains as the best example of an emission
quota system currently in use.
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Emission Allocation Planning in California
The emission allocation planning (EAR) approach developed in the
state of California has evolved over the last three years. A discussion
of the development of the approach in California is found in other
publications and will not be reviewed in detail here. " Suffice it to
say that the approach originated with an interest in introducing air
pollution control into the planning activities of cities and counties.
It was initially thought that an air pollution control element could
be added to the general plan of all cities and counties in the state.
It was quickly decided, however, that such a local, qualitative
approach would not be adequate for dealing with a problem that is region-
wide in scope. The California Air Resources Board recognized that an air
basin-wide planning effort would be necessary-
The Approach. Although related to emission density zoning, emission
allocation planning should be viewed as a more generalized technique
concerned with regional air pollution problems. The focus is on the
comprehensive land use plan as the basic document from which future lev-
els of air quality are estimated. The purpose of emission allocation is
to utilize land based emission factors to evaluate the air pollution
potential of comprehensive land use plans within a defined region. The
land use plans, therefore, need to be viewed as an accurate represen-
tation of the future development that can be expected in the region
under study and thus assume a position of importance in estimating
future levels of air quality.
The basic concept behind emission allocation is that there should
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be some relationship established between total air pollutant emissions
in a region and the assimilative capacity of the ambient air in the
region, and that this relationship should be projected into the
future to establish the total amount of emissions that can be allowed
at some future point in time. The assumption is made that there is a
fairly close relationship between urban growth and increasing levels
of air pollution. Thus, if we had a picture of the future levels of
land development in a region, one could select the type of air quality
maintenance strategies that would be necessary to ensure that air
quality standards will not be violated. The comprehensive land use
plan provides this picture of future development. Thus, emission
allocation planning is both an air quality management and land use
planning technique.
The recognition of the potential importance of land use planning
as a technique for maintaining air quality standards led the California
legislature in 1973 to direct the California Air Resources Board (ARB)
to prepare a report on proposed guidelines for the preparation of an
air pollution control element in city and county general plans. In
response to this mandate, the ARB let a contract to the consulting firm
of Livingston and Blayney to prepare such a report in cooperation with
the ARB staff. ^ However, as the study progressed in early 1973, it
became apparent that air quality management can be effectively inte-
grated with land use and transportation planning only on an air basin-
wide basis. Accordingly, the procedures which the consultant recom-
mended would vest responsibility for allocating air pollutant emissions
limits within each air basin in the state in a regional agency.
Six steps were proposed in the consultant's report to integrate
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air quality goals into the land use and transportation planning process
under the emission allocation procedures.
1) Compile detailed inventories of air pollution emissions in
planning sub-areas of an air basin. The assumption is made
that present inventories for counties and the air basin are too
generalized for detailed air quality planning.
2) Designate maximum emissions allowable in each planning sub-area
to achieve and maintain air quality standards, based on an
analysis of present air quality and the assimilative capacity
of the air to absorb pollutants and still maintain air quality
standards.
3) Project planning sub-area emissions likely to be generated
by sources indicated in land use and transportation plans for
designated future time periods and compare these emissions
with the allowable emission limits.
A) Evaluate and revise land use and transportation plans so that
prescribed emission limits would not be exceeded.
5) Adopt and implement land use and transportation plans which
are prepared to meet air quality goals and standards.
6) Monitor public and private development through a refined
environmental impact assessment process in which emissions
projected directly or indirectly from proposed projects are
accounted for in environmental impact reports.
The key to this process is the concept of allocating air pollutant
.emissions within an air basin. The emissions were to be allocated
based on a proportional model which compared current ambient air
concentrations, as monitored, and current emissions in the air basin
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with federal air quality standards and future emissions allowable in
meeting the standards. The planning sub-areas of the air basin would
then be allocated the same percentage of current air basin emissions
in the future. For example, assuming attainment of federal standards,
then current emissions of sulfur dioxide might be increased by 10 per-
cent in the air basin while still maintaining the standard. If the
planning sub-area currently has 5 percent, or 100 tons of the total
2,000 tons of sulfur dioxide emissions in the air basin, then the
sub-area could have 5 percent of the total allowable emissions in
the future. The total allowable is 2,200 (a 10 percent increase),
and the sub-area would be allocated 110 tons (5 percent of the total).
This is an example of "current proportions allocation," discussed in
Chapter A.
As long as plans and projects conform to prescribed emission
limits air quality standards will be maintained. An appeal process
would permit deviation from prescribed limits where technical infor-
mation is available to ensure that air quality standards will not be
exceeded by the proposed deviation.
The designated regional agency in the air basin would compile the
planning sub-area emissions inventory and then designate the emissions
limits for each planning sub-area. City and county planning agencies
would make emissions projections based on their land use and transpor-
tation plans, using emission factors provided by the Air Resources
Board and the Environmental Protection Agency, and then adjust their
plans to meet prescribed emission limits. Transportation planning
agencies likewise would make projections of the emissions that would
be generated by their proposed plans, and revise them accordingly.
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A significant amount of interaction between the agencies involved would
be necessary before all plans throughout an air basin met the prescribed
1imits.
Appeals to exceed emissions limits would be decided by the desig-
nated regional agency. Once the plans had been approved by this agency,
the responsibility for implementing them would rest with the cities and
counties. However, the designated regional agency would continue to
monitor development through the environmental impact assessment
process to ensure that emission limits would not be violated.
Developments from 1973 through mid-1975. In August of 1973, the Air
Resources Board transmitted a "Report to the Legislature on Guidelines
for Relating Air Pollution Control to Land Use and Transportation Plan-
ning in the State of California." This report contains, as an
appendix, a report to the Air Resources Board by the consulting firm
42
of Livingston and Blayney, city and regional planners. The report
and the appendix contain the basic elements of the emission allocation
planning process. The Air Resources Board circulated these documents
widely within the state of California, asking for comments from a
variety of agencies, including air pollution control and land use
planning agencies. At about the same time, Senate Bill 15^3 was
introduced in the legislature. This bill contained the basic elements
of the emission allocation process. Like the material mentioned
above, copies of SB 15^*3 were also widely reviewed within the state.
Over the next year, most of the discussion of the bill dealt with
the role of various governmental institutions in implementing the
process. Comparatively little discussion was addressed to the mechanics
of implementing the process. The interest in the institutional aspects
2-13
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of the bill can be traced in part to the designation of the basin-wide
coordinating councils as the organization to carry out the emission
allocations process. In California, basin-wide coordinating councils
are groups of air pollution control districts within an air basin which
come together to cooperatively deal with problems behond their juris-
dictional boundaries. If the air pollution control district already has
a region-wide jurisdiction, as is the case with the Bay Area Air
Pollution Control District (BAAPCD), the district is then also the
coordinating council. Thus, in the Bay Area, the BAAPCD would be the
agency which would have implemented SB 15^3-
Much of the opposition to the designation of the coordinating
councils as the planning and implementing organization came from
councils of governments (COGs). The COGs felt that the emission alloca-
tion approach was one more example of single purpose regional planning
in California and that it would be more appropriate for the COGs to be
the planning organization, with appropriate coordination with the air
pollution control districts. Cities and counties, to a lesser extent,
also expressed reservations about a new regional planning process
which might result in the removal of some of their authority over land
use and transportation decisions. During 1973 and 197^, the Reagan
administration did not take a position on the bill.
The bill reappeared as SB 98 in December 197^ and was amended
on January Ik, 1975. The basic elements of the amended bill are found
in Appendix A. This appendix, which describes the impact of SB 98 on
the San Francisco Bay Area, contains the basic elements of the bill
in what is presently its final form. One of the last amendments to
the b'ill was the addition of a section which would authorize the Air
2-14
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Resources Board to transfer the responsibility for allocating emission
limits from a basin-wide coordinating council to a multi-functional
regional organization encompassing an air basin if that organization
has the responsibility for planning for air quality in the region. This
amendment was added because of the criticisms noted above.
Another criticism of both SB 15^3 and SB 98 is that the Air
Resources Board maintains the authority to determine the emission limits
within each air basin. Local air pollution control districts, in par-
ticular, wished to keep this authority within the regions and not have
it reside in Sacramento. Discussion of this issue, however was minor
compared to the concern with the institutional aspects of the bills.
With the arrival of SB 98, discussion finally started to focus on
procedural issues. Support for the bill was usually qualified with
a statement that the emission allocation approach as outlined is little
more than a general framework that raises more questions than it
answers. Requests were made to ARB that a major test of the procedures
should be undertaken before full scale adoption of the approach state-
wide. For example, the choice of subdivisions to which emissions would
be allocated within air basins is not discussed in the legislation.
Would they be political subdivisions or rectangular grid cells? To representa
tives of local governments a question such as this is one of major
importance.
In part, because of the lack of detail in the bill, SB 98 died
in the Senate Local Government Committee in May 1975- The new
administration of Governor Brown refused to support the bill. One
reason suggested for this lack of support is that the implications
of the bill could not be adequately understood. Until the Brown
2-15
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Administration reached a point where the impact of the bill could be
better determined, it seemed likely that support would not be forth-
com i ng.
Emission Allocation As A Legislative Mandate. Although the death
of SB 98 probably can be ascribed to a number of causes, one of the
major reasons is that the bill would have mandated a uniform approach
to air quality maintenance in all of the critical air basins within
the state. A distinction must be made between a legislative mandate
and a planning procedure which can be modified to suit local conditions.
Thus, the lack of a legislative mandate does not mean that the emission
allocation process will not be attempted within California. Even
without a legislative mandate it seems likely that the Air Resources
Board will actively seek to use the emission allocation approach or
some derivative as the basis for air quality maintenance planning
within California.
California's Approach to Air Quality Maintenance Planning. En-
vironmental planning in California is somewhat unique in the United
States since the National Environmental Protection Act of 1969(NEPA),
is complemented by the California Environmental Quality Act of 1970
(CEQA), which requires environmental impact statements on private
developments. These two project-by-project approaches to environ-
mental analysis produce tremendous amounts of data, but these data
lack a framework within which they can be effectively utilized. Some
progress has been made in projecting levels of non-reactive pollutants
associated with individual projects, but ARB staff often point out
that there is no methodology for relating precursors of oxidant from
individual projects to future oxidant levels in the individual air
2-16
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basins within the state. Indeed, there is a steadily growing frustra-
tion with the lack of utility of the massive amounts of data being
accumulated on individual projects which theoretically are to be a
useful guide to decision making. The most reasonable technique for
relating individual projects to region-wide air quality problems in the
minds of the ARB staff is the emission allocation technique.
It is therefore very likely that the emission allocation technique
will be refined by the ARB staff as part of the "plan development
program" (PDF). The POP is a two-phase approach for meeting EPA's
requirements for the preparation of an air quality maintenance plan.
As presently proposed, the POP approach seems to be the appropriate
vehicle for determining whether emission allocation planning is a
viable technique to be utilized as the basis for an air quality main-
tenance plan. Without the structures of a legislative mandate, the
emission allocation approach can be modified and adapted to local needs
within the state.
Conclusion. The emission allocation approach as proposed in the
state of California is designed to deal with the area-wide oxidant
problem. Although the approach has been suggested to be more suitable
for non-reactive pollutants, the California Air Resources Board is
primarily concerned with using the approach for evaluating the impact
of individual projects on area-wide oxidant levels. The
secondary objective is to use emission allocation as an overall frame-
work for the air quality maintenance planning process. Although it is
anticipated that the approach will be very useful in dealing with long-
term issues of urban growth, the present dilemma of making effective
utilization of information created under the NEPA and CEQA process
2-17
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remains paramount. Since CEQA type legislation covering private
development does not exist in most other states, one would have to
raise the question of whether the emission allocation approach is
appropriate for other parts of the country. The more or less self-
contained airsheds within California gives any air basin-wide approach
some validity. The difficulty of determining and controlling back-
ground concentrations in other parts of the country suggests that the
emissions allocation model might not be as appropriate. However,
without actual experience in attempting to apply the technique, ques-
tions raised concerning its effectiveness must remain hypothetical.
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NOTES
1. Interview with Robert Offutt, Secretary Treasurer,Jefferson Air
Pollution Control District, July 1973-
2. Interview with Dennis Hawker, Deputy, State of Illinois, Institute
of Environmental Control, July, 1973; Interview with Mario Tonel1i,
Administrator, Cook County ECD, July, 1973-
3. This pattern of enforcement was primarily due to the absence of
county or regional pollution agencies within the state.
4. The reaction to a tightening of pollution standards was quite
negative, some critics claiming that growth in the area would be
cut by three-quarters. As a result, the Kentucky implementation
plan which was finally submitted to and approved by the EPA
deleted any promise of stronger-than-minimum controls.
5. Cook County includes an area of 400 square miles but excludes the
city of Chicago. Chicago has its own environmental control
department.
6. See Salzenstein, Industrial Performance Standards, ASPO Planning
Advisory Service, Rept. No. 272 (1971).
7- According to Mario Tonelli, the new ordinance is more in tune with
the state, which has adopted stricter regulations. The ordinance
was changed in April, 1973- Point sources are usually defined as
a function of plant size which is sufficient for particulates
process control. The Jefferson County Air Pollution Control
Ordinance defines a point source as "any air contaminant source
which emits 25 tons per year or more of either particulate matter
or sulphur dioxide." Sec. 1.13.1-
8. Art. VI, Sec. 6.2-l(c) provides:
For purposes of the regulation, the total process
weight from all similar process units at a plant
or premises shall be used for determining the
maximum allowable emission of particulate matter
that passes through a stack or stacks.
9- Interview with Mario Tonelli.
10. By acquiring additional land the large industry can avoid violation
of the emission density controls. On the other hand, if industries
are forced to acquire additional land in order to comply with
emission density controls they may have to locate in areas subject
to non-degradation controls. The Illinois Institute of Environmental
Control stated that the non-degradation issue was the reason why the
state stayed away from emission density zoning. Interview with
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Dennis Hawker, July, 1973.
11. Jefferson County is the only district that has been set up in
Kentucky in recent years.
12. The Jefferson County ordinance is very short and broadly stated.
According to one of its draftsmen, it was intended to inform industry
of the basic requirements and to work through a tough enforcement
policy.
13. Revised Ordinances of the City of Louisville, Ch. 3^ Sec. 12 (1970).
14. These pollutants are of primary concern in Cook County and Louisville
as they are the main pollutants produced by industrial plants.
Louisville has a wide variety of industrial pollutants: synthetic
rubber, whiskey, paint, tobacco, and coal. The coal industry, which
has been traditionally a rural operation, had moved part of its
operation to the Louisville area and had become especially trouble-
some from a pollution standpoint. Industry alone was creating
approximately 788,000 tons of pollutants across the region per year.
In addition, there are "hot spots" in certain areas in which rubber
factories and power plants are located.
15- Interview with Robert Offutt.
16. The year 1975 was used as a working date because the district has
set 1975 as a goal for meeting the Clean Air Act's primary and
secondary standards for particulates.
17- Partitioning the county was done as part of the development of the
Board's program. The sections were each 2 kilometers on a side.
18. That is, an emission quota would be enforced as an overlay upon
point source standards. The number of proposed sections was fed
into the diffusion model- The information gathered through the
Emission Inventory enabled the Board to take existing as well as
target pollution levels into account.
19- Ordinance, Sees. 1.13-3 (A) (1); 1.13.3(A)(2)
20. E.g., the downtown quadrant would not have the same area standards
as the east-county quadrant, which is virtually undeveloped, or
the so-called "rubbertown" section, where much pollution is
orig inating.
21. Public hearings were held prior to the enactment of the emission
quota ordinance. To the surprise of the Board, there was little
local protest over the proposal although three groups, land
speculators, large property owners, and of course some industries,
did complain that emission quota limits were too stringent.
State officials were also skeptical.
22. As an example, the Board has required an industry like B. F. Good-
rich to include in an annual report to the Board a review of 120
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different functions carried on in its plant which can potentially
produce pollutants. If the Board is dissatisfied with the industry's
efforts in controlling any of these functions, it requires an im-
provement before allowing a permit to be renewed. By the summer of
1973 the Board reported that of 245 individual industries which in
1971 were producing an excessive amount of industrial pollution
only 18 sources remained which had not sufficiently reduced their
output. The Board attributes its success to its willingness to go
to court to force industries to comply with point standards.
Although the Board suggests that nearly 3,000 pollution cases have
been heard by the District's Ecology Court it also dismisses all
of these cases as minor.
23. One reason may be the leniency of the standard. Although perhaps
acceptable in "rubbertown," 2550 tons per square mile per year of
sulphur dioxide is hardly a desirable addition to a previously unpolluted area
24. Telephone interview with Robert Offutt, April, 1975-
25. Two major power plants in that area have preempted the emission quota.
26. To date, the Board has worked with the Authority and has helped it
to modify its plans to avoid this confrontation. Telephone inter-
view with Robert Offutt, supra note 24.
27. Interview with Mario Tonelli; Interview with Dan Ferrone, Department
of Planning, Cook County, July, 1973- Coordination is monitored by
keeping up to date a grid map which pinpoints the sample stations.
The grid map partitions the county into areas of high and low pol-
lution concentrations. The Cook County Environmental Control Depart-
ment will not approve a plant If it will cause a violation of primary
or secondary air quality standards, but whether the location is
beneficial or at least adequate from a land planning perspective is
not within its jurisdiction to resolve.
28. The inventory is maintained through monitoring the sample stations
dispersed throughout the area. If a station registers a high
reading, inspectors are sent into the area to determing the
polluting industry. Thus the ECD deals directly with each plant
at its stack or cluster level.
29. Interview with Dan Ferrone. See also G. Hagevik, D. R. Mandelker,
and R. K. Brail,The Contribution of Urban Planning to Air Quality,
6-1 to 6-29 (1974).
30. The zoning ordinance includes certain standards not necessarily
2-21
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identical to the Environmental Control department standards for
manufacturing, as well as noise control provisions. The county
Zoning Department, however, did not appear to be very clear about
the ordinance of the Environmental Control Department (and vice
versa). It was unsure whether the requirements were identical,
whether the unit of measurement was the same, or if either one
preempted the other. It was confident, however, that the ordinances
conformed. The ECD deals not only with the Zoning Department but
also with the 127 municipalities of Cook County.
31. The Zoning Department has jurisdiction only over the unincorporated
part of the county. In contrast, the Environmental Control Depart-
ment has jurisdiction over the entire county, excluding the city of
Chicago, which has set up its own environmental control department.
32. This Department has the scientific knowledge and the inspectors to
accurately assess whether industry can meet the necessary performance
standards established by the county.
33- After this, the plant is subject to regular inspections.
3^. Both the Environmental Control Department in Cook County and the
Air Pollution Control District in Jefferson County are staffed
entirely by chemists and engineers. In neither are there plans to
bring in attorneys or urban planners. Fred P. Bosselman, a
prominent Chicago land use attorney, believes that the establishment
of a centralized agency combining air pollution and land use control
functions could be helpful. Interview, July, 1973. Mario Tonel1i
concur. The Cook County Environmental Control Department also
agreed that an agency combining land use zoning and environmental
control standards would be desirable. However, zoning as such was
not applauded; basically, performance standards were considered
separately from land use.
35- Interview with Mario Tonel1i. The department will cite an industry
for a violation or delay the appropriate permit until the standards
are satisfied.
36. Interview with Marvin Salzenstein, President of Polytechnic, Inc.,
July, 1973.
37. Yet Dan Ridings, the Planning Commissioner, concedes that the Pol-
lution Board is far better equipped than his agency to make such
quasi-zoning decisions. Interview, July, 1973.
38. As a result, the numerous small industries presently being ignored
may ultimately produce enough pollution to create a-_substantial
increase in pollution levels.
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39. Interview with Robert Offutt.
kO. See, in particular, Hageyik, fta.ndelker, and Brail, supra rioL._ 2'^, Chpt.
41. Livingston and Blayney, Report on Guidelines for Relating
Air Pollution Control to Land Use and Transportation Planning
in the State of California (1973).
k2. Livingston and Blayney, supra note 41.
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CHAPTER THREE
LEGAL ISSUES
This report has outlined some of the control and enforcement
possibilities that are available in emission quota strategies, and has
followed this analysis with a review of emission quota controls in the
Chicago and Louisville metropolitan areas. We should now look more
closely at some of the legal problems that are likely to arise in the
use of emission quota procedures.
Legal issues in the emission quota context are likely to focus on
two common constitutional restraints on the exercise of regulatory
powers by public agencies, the equal protection and the due process
clauses. The equal protection clause requires that public programs of
regulation be administered fairly and equally among those affected,
subject to criteria that distinguish reasonably among those subject
to the program's controls and restraints. The due process clause
prohibits any land use or associated regulation which has the effect
of so restricting individual rights in property that no reasonable
use may be made of the land. In this event, courts commonly find
that the restriction is unconstitutional as a "taking" of property.
On their face, there is nothing inherently unconstitutional in
the method of regulations utilized in emission quota regulations.
These regulations rely on well-established principles of constitutional
law which generally support any regulatory control that leads to
cleaner air, improved atmospheric conditions, and improved public
health. Problems may arise, however, because the regulatory assump-
tions underlying conventional zoning controls may not fully accommodate
3-1
-------
the restraints on the private use of land which emission quotas
impose. In conventional zoning, densities and uses are allocated
throughout the community with the assumption that every parcel of
land affected by the zoning regulation will be allowed some permitted
use that will survive a constitutional attack. That is, every parcel
is assigned a permitted use and density which is sufficiently per-
missive to avoid a due process "taking." Fairness of treatment and
thus equal protection objections are avoided in conventional zoning
through thevuse of criteria that allocate land uses and densities
throughout the community on the basis of development policies that
can be uniformly and consistently applied.
Emission limitation quotas proceed on a different premise,
since the quota places a threshold limit on allowable emissions with-
in the air quality region as assigned to specific geographic sub-areas.
New stationary sources of pollution will be approved so long as these
threshold limits are not exceeded. The difficulty is that the pollution
holding capacity of a region or sub-area may not be altered, as density
and use restrictions may be altered in conventional zoning, to afford
greater leniency to individual sources in order to forestall constitu-
tional attacks. The time must come when additional sources of pollution
must be prohibited so that emission quotas will not be exceeded. As
long as the emission quota does not unconstitutionally restrict new
development, no constitutional problems are presented by their
application to land development projects. Constitutional objections
are raised when the application of air quality standards leaves the
landowner with no constitutionally acceptable alternatives for the
development of his land.
3-2
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The Quota Problem
These issues can best be viewed from the vantage point of the
applicant whose source has been disapproved under the circumstances
that have just been outlined above. Let us take his equal protection
argument first. Our unsuccessful applicant will allege that his appli-
cation has been denied only because he was last in line, and that other
sources with no greater merit than his have been approved merely
because they were presented to the air pollution control agency earlier.
We have indicated that emission quota controls will probably have to be
administered on a first-come basis. Now we are suggesting that serious
constitutional problems can be raised by the applicant who comes after
the emission quota for an area has been filled, and who challenges
the administration of emission quota controls solely on a first-come
approach. His principal point is that a system of land use regulation
that distributes development opportunities on this basis is unconstitu-
tional because the criterion utilized to make the allocation--priority
of application—cannot be sustained as a reasonably appropriate
criterion under the equal protection clause.
Unfortunately, there is very little legal precedent on this issue.
As Professor Krasnowiecki has pointed out, "there was a sense running
through standard zoning that you cannot establish regulations for an
area that would allow one landowner to deprive the other of a pro-rata
share of permissible development." In other words, as applied in the
emission quota context, there seems to be acceptance of the principle
that the quota cannot be filled on a first-come basis if development
will be prohibited on any land subject to the quota after the quota
has been exhausted. This problem does not arise under traditional
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zoning ordinances. Traditional residential zoning assigns a density
limitation to all zoning districts, but each parcel of land within the
district is entitled to the allowable density. The density is not
exhausted under a quota system for the district at a time prior to the
time at which all land in the district has been developed.
2
There has been little judicial consideration of the quota problem.
Recently adopted no-growth ordinances in many municipalities which
utilize a quota approach will no doubt test the constitutionality of
the quota strategy, at least as applied to the limitation of residen-
tial growth. The issue has not yet been settled and will probably be
extensively litigated. Our impression, however, is that courts will
be hostile to explicit quota programs that foreclose last-come
developers from areas in which, but for the quota, they would have
been allowed to develop their land.
As applied in the emission quota context, the possible adverse
constitutional implications of a quota system are most serious in the
fixed district form of emission quota zoning (DEQ). Under this kind
of emission quota control, the quota is assigned by district and is
capable of being exhausted before the last-come developer can get
approval to build or modify his source. Quota problems are less
serious under the emission allocation planning (EAR) procedure, since
zoning agencies subject to EAR quotas can presumably adjust their
zoning ordinances to meet the requirements of the quota allocation
without using quota programs on a district basis. While some
communities may find that they cannot stay within their assignments
without adopting potentially over-restrictive regulations, a number
of those may well be smaller residential suburbs in which no
-------
development with a serious pollution potential is planned.
Problems may still arise under this system. For example, the
emission allocation planning process does not contain a method to force
communities to zone up to their emission threshold. Some communities
may then adopt land development control policies that do not exhaust
their emission quota. In this situation, pressure may be placed on
other municipalities to accept development that is not allowed in the
recalcitrant localities. Other problems may arise if some communities
are so committed to heavily-polluting industrial development that
they are unable to meet their assigned quota without adopting re-
strictions that raise constitutional problems.
Emission allocation planning may produce development inconsistent
with comprehensive regional planning policies even if all communities
in the region cooperate wholeheartedly in the EAR strategy. This
problem arises because EAR bases the distribution of allowable emissions
on the need to maintain afr quality standards. When the
regional emission quota is assigned to local governments, the quota
assignments for each locality may force artificial development
decisions in order to meet these assignments. Since the quota will
be allocated by governmental area, each local government will be
restricted to allowing development within the quota assigned to it.
Distortions in land development may result that otherwise would be
avoided if the quota could be absorbed more flexibily within the
region. Allocating the emission quota assigned under EAR to each
government in the region may therefore produce a haphazardly dispersed
development pattern. Industry will locate in a random pattern in
order to comply with the assigned governmental quotas.
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Most probably, in view of these limitations, emission allocation
planning will work best in araas in which governmental units are
sufficiently large so that the emission quota assigned to each will
not force distortion of the land development patterns that otherwise
would be adopted. Alternatively., some method might be found for
transferring emission allocations between communities so that planning
policies are not distorted by the need to comply with the emission
4
quota. Finally, the comprehensive development plan for the region
could be used as the basis for the assignment of emissions to juris-
dictions. This presumes the availibility of such a regional plan and
the acceptance by the counties and municipalities of the plan. Given
the use of EAR in this way, the emission allocations can act as
another element in a comprehensive urban development guidance system
approach to ensuring rational regional development plans. This
guidance system approach will be discussed more fully in the next
chapter.
The quota problem will be easier to handle under the floating
zone emission quota system as developed in Louisville. This variant
of emission quota control has the advantage that it does not require
the mapping of emission quota zoning districts in advance. Neither
does it require the prior assignment of emission quotas to specific
local government units. An application for a new source need not be
denied unless the pollution it emits exceeds the quota for the area
within which it is tested. Since the emission quota is not assigned
to districts mapped in advance of applications for approval, the
area in which a violation of the emission quota is tested varies as
each new source is proposed. The margin of safety for each new
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source thus increases the greater its distance from existing sources
of pollution. As a result, there is less likelihood that new sources
will be disapproved. Legal difficulties are likely to arise only if
the application of the floating quota leads to disapproval of a new
source on leftover land in an area in which existing development pre-
cludes any other reasonable use. This possibility may arise, but
it is less likely to occur than under the district emission quota
procedure. The problem is that the dispersal of stationary sources
which the floating zone emission quota may require may not be com-
patible with existing and planned land development patterns.
The emission density zoning approach does not raise an equal pro-
tection problem. Individual polluters can comply with the emission
quota simply by buying enough additional land to bring their emissions
within the quota limits. No polluter will therefore be denied
approval under this system because his application is presented after
earlier approvals have exhausted an emission quota that is applied to
a planning or zoning district, or governmental jurisdiction. Although
the amount of land needed by a facility will vary with the amount of
pollution emitted, the emission quota can be uniform for a particular
zoning classification, such as heavy industrial, throughout the
jurisdiction. The amount of land required varies proportionately
with the amount of pollution emitted so that the uniform standard will
not be exceeded. The emission density zoning system may present due
process taking problems, however, if a polluter is required to purchase
an excessive amount of additional land over the amount currently owned
simply to absorb his pollution load.
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The Taking Issue
A second legal problem arising under emission quota strategies is
the so-called taking issue. A point may be reached in the application
of emission quotas at which a last-come developer will be prohibited
from constructing his facility but may not be able to put his land to
any other reasonable use. An illustration using the district emission
quota will indicate the nature of the problem:
Assume a heavily industrialized area which is also
designated as an emission quota zone under a district
emissions quota (DEQ). Several undeveloped parcels re-
main in this area. New development is allowed to proceed
for a time as the emission quota in the area is not exhaust-
ed. A point is then reached at which a new facility is
approved which exhausts the quota. The next application is
then denied. This application covered a plot of ground in
the middle of the industrial area. Since the application
for industrial use was denied, no other use is reasonable
under the circumstances since non-industrial uses in a
heavily industrialized area are out of the question. In
effect, no further development of this parcel is allowable
under the district emission quota.
Comparable restrictions on land development can arise, though under
somewhat different circumstances, under the other emission quota
strategies.
The question here is whether this restriction on the de-
velopment of the last-come applicant's land is serious enough to
warrant a finding by a court that the restriction is unconstitutional
as a "taking" of property. Again, there is no clearcut law on this
issue. Zoning ordinances have been held unconstitutional when they
have frozen the uses on land at a level so low that no development is
permitted. The theory is that the right to restrict development so
completely must be acquired and paid for by the zoning agency if it
is to withstand constitutional attack. In one leading case, a local
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zoning ordinance restricted an existing private parking facility in
a built-up downtown area so that it could only be used for parking
purposes. The effect of this restriction was to prohibit any develop-
ment of the land, and to force the owner of the parking area to main-
tain it in an undeveloped state for the use of adjacent buildings.
For this reason, the ordinance was held unconstitutional.
In this case of the private parking facility there were no
reasons of public health and welfare that justified so restrictive a
limitation on the use of the landowner's property. What if the pur-
pose of a highly restrictive regulation of land use is to conserve and
protect land which otherwise might be damaged environmentally? For
example, land in a flood plain might be restricted from substantial
development. Or property located in a wetland adjacent to a lake or
stream might also be restricted to its existing undeveloped use to
avoid any damage to the adjacent lake or stream from pollution or
storm water run-off. Even in this situation, some courts have found
the restriction unconstitutional, although the trend is now in the
other direction.
The question is whether the cases upholding environmentally
restrictive land use regulations of this type would justify the
restrictive application of the district emission quota in the example
given above. In the flood plain and wetlands zoning cases, the courts
were able to find that a restrictive land use regulation prohibiting
all new development contributed to the protection of a critical
natural resource. A restrictive wetlands control regulation, for
example, will help protect ecologically sensitive wetlands in the area
adjacent to the restricted property.
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Just as in the wetland control situation, emission quotas
attempt to restrict development in order to protect a common resource,
the air rather than a water and water-related environment. There
is, however, an important distinction between wetlands and flood plain
restrictions and emission quotas. Under the wetlands and flood plain
controls all of the land in a given area is totally restricted from
development in order to protect the natural resource. Under emission
quota strategies, new development is allowed until the quota is ex-
hausted, and later development is denied in order to protect the air
resource. To be comparable to wetlands and flood plain controls,
emission quotas would have to restrict all development in a given area
in order to implement the air pollution control objective. If the
emission quota technique were used in the wetlands and flood plain
examples cited above, a similar constitutional problem might arise.
If some development were allowed in wetlands areas until pollution
threatened, and if all development were thereafter prohibited, the
owner whose land was restricted might also have a due process argument
if the character of the surrounding development precluded any
reasonable use of his land in its undeveloped state.
Superficially, due process objections are not as apparent
under the emission density zoning technique. This technique does not
permit the disapproval of a pollution source provided the owner of the
source can acquire enough additional land to bring his pollution
level under the quota. A similar compliance problem arises under the
residential density controls contained in zoning ordinances. Enough
land must be purchased by any would-be developer to bring his density
within the allowable limits. The difference in the density control
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situation is that the residential density policy is applied uniformly
to all developers within the density control district, and does not
vary with the nature of the residential development. Each unit of
residential development requires the same amount of land. In emission
density zoning, the emission limitation standard is uniformly applied,
but the amount of land each source must own will vary with the
emissions produced. Each unit of pollution requires the same amount
of land, but the amount of land required by different polluters will
not be proportionately related to the sizes of the sources. The
question that arises is whether emission density zoning is vulnerable
because the land assembly requirement is disproportionate to the size
of the source even though it is proportionate to the amount of pol-
lution the source emits. If emission density zoning is vulnerable on
this ground, there is a risk that a court would find it unconstitu-
tional on due process taking grounds if the amount of land required
for any one source is excessively disproportionate to its size.
There is little direct legal precedent that can provide
an answer to this question, although some guidance is furnished by the
cases considering the constitutionality of official map restrictions
and subdivision control dedications. An official map is a land use
control through which a state or municipality can temporarily prohibit
land from development in areas such as rights-of-way that are intended
for future acquisition for highway purposes. As in emission density
zoning, the criteria for the application of the official map technique
are uniform throughout the area in which it is applied, but the effect
of the official map on different landowners will vary. In some
instances, the official map may restrict an excessive amount of land
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belonging to a sirjle property owner. The courts have generally
sustained official maps against an argument that the temporary re-
striction on development is unconstitutional as a taking. However,
there is an undercurrent in the cases suggesting that an official map
will be held unconstitutional as applied if an excessive amount of
land belonging to one property owner is temporarily restricted from
o
development by the offical map reservation.
Subdivision control dedications are literally donations of
land by subdivision developers to the community, to be used as sites
9
for roadways, parks, and schools. While the case law on subdivision
dedications is not yet fully settled, the recent cases appear to have
accepted subdivision dedications as constitutional whenever the purpose
to which the dedicated land will be put meets a public service need
10
generated by the subdivision. Here, as in the official map cases,
there is also some judicial indication that a subdivision dedication
that is unduly burdensome to a particular developer will likewise be
found unconstitutional.
These official map and subdivision control cases dealing
with excessive land reservation and dedication requirements may have
equal protection as well as due process overtones. They nevertheless
suggest that a land use control may serve some constitutionally
acceptable community-wide purpose, such as air quality improvement or
the protection of highway rights-of-way in advance of acquisition, but
may nonetheless be held unconstitutional as applied if the burden it
places on a single landowner is excessive. The difficulty of emission
density zoning in this context is that the emerging test appears to
be one of proportionality. Large emission sources will be able to
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absorb the costs of additional land assembly without having to make a
disproportionate expense, while the small but heavily polluting emission
source will not. If a small factory with high levels of emissions is
required to make a disproportionately excessive investment in additional
land in order to comply with the emission density zoning requirement,
the risk that emission density zoning will be found unconstitutionally
12
burdensome as applied to that landowner is a possibility.
Conclusions on the Legal Issues
The legal problems discussed in this section can be alleviated
to some extent through appropriate administration of the emission
quota system. As one possibility, only enough land could be zoned
industrial in a given area to use up in full the quota that has been
i
allocated. Under this approach, no last-come developer would be
prohibited from development because there would be enough allocated
emissions to allow all development up until the point at which the
quota is exhausted. The trouble with this approach is that it is
very difficult in advance to match emission allocations with zoning
categories. Each new facility will have a different pollution potential.
Another way to avoid legal problems is through a conditional
approval procedure which would amount to another variant of the
emission quota strategy. No emission quota districts and no industrial
or other similar local zoning districts would be designated .in advance.
Instead, new local zoning for industrial and other polluting facilities
would be granted as new applications are made. When the emission
quota is exhausted, the zoning agency could prohibit any new develop-
ment. This approach could be incorporated into the floating zone
emission quota procedure discussed above, and has respectable
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precedent in the local floating zone procedures that have been adopted
13
in many communities. Again, however, if the conditional approval
procedure results in the creation of an industrialized area in one
section of the air pollution control region, and if new industrial
development is prohibited in this area after the emissions quota is '
exhausted, constitutional questions similar to those already discussed
would be presented.
On balance, the emission allocation planning procedure appears
to present fewer legal problems than the other, more directive,
emission quota strategies. Under EAR, each municipality is allowed
to provide a mixture of land uses in its discretion, provided its EAP
allocation is not violated. Through careful planning, situations can
be avoided in which either equal protection or due process objections
can be raised through the application of the EAP technique. Even
under the EAP approach the municipality will have to be very careful
to avoid the creation of a zoning and planning framework in which
last-come developers will be prohibited from development because the
EAP allocation has been exhausted. Prohibition of development because
of quota exhaustion will always raise legal problems if the prohibition
so restricts the land that no other reasonable use is possible.
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NOTES
1. Krasnowiecki, Legal Aspects of Planned Unit Development in
Theory and Practice, in Frontiers of Planned Unit Development
99, 104 (R. W. Burchell, ed., 1973).
2. But cf. DeMaria v. Enfield Planning & Zonning Comm'n., 159
Conn. 534, 271 A.2d 105 (1970).
3. The issues are extensively discussed in Potomac Institute, Inc.,
Local Growth Management Policy: A Legal Primer (1975).
We should also note here that equal protection problems
created by quota restrictions may also arise under other control
strategies that have been adopted to implement the Clean Air
Act. EPA's no significant deterioration rules place a quota on
air pollution emitted by designated new stationary sources in
Class I and Class II deterioration areas. See 39 Fed. Reg.
42510 (1974). Presumably, equal protection problems similar to
those discussed here may arise in areas designated Class I or
Class II by the no significant deterioration regulations. The
problem is not likely to occur, however. Emission quotas are
often applied to local industrial "hot spots" in which much
industrial development has already occurred and in which any
restriction on new industrial development appears arbitrary.
Class I and Class II areas are likely to be areas in which little
industrial development has taken place. The disapproval of a
new stationary source in these areas is not likely to happen at
a location already committed to industrial use. In addition,
the states may always reclassify to Class I I I an area in which
they wish to allow new growth.
State implementation plans must also contain a procedure
authorizing the denial of a new stationary source at any "loca-
tion" at which it would violate a national ambient air quality
standard. 42 U.S.C. Sec. l857c-5 (1970). This provision would
authorize the disapproval of a stationary source under
circumstances that could raise equal protection and due process
problems similar to those discussed in the text. Apparently
the states have not yet used this provision to disapprove new
sources solely on the basis of their location. If they did,
the constitutional problems discussed in the text are again not
likely to arise. The applicable standard under this provision
is the air quality standard, so that a new stationary
source may search the entire region for a location where a new
plant will not violate the standards. However, if at
some point the threat to air quality demands a total
ban on any new industrial or other new stationary source
throughout the region, the constitutional problems raised by
emission quotas may arise. In this situation, however, any
ban on new development is justified by the threat to the health
standard for the entire region, and not by the exhaustion of a
quota applied to a limited geographic area whose allocation
depends explicitly on a priority of application. This distintion
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may make a difference.
4. Development rights transfer techniques have been advanced as
one method of dealing with this problem. See Baker, Development
Rights Transfer and Landmarks Preservation--Providing a Sense
of Orientation, 9 Urban Law Ann. 131. (1975).
5. Vernon Park Realty v. City of Mount Vernon, 307 N.Y. 493, 121
N.E. 2d 507 (195^).
6. The leading favorable case is Just v. Marinette County, 56 Wis.
2d 7, 201 N.W. 2d J6l (1972), noted, 86 Harv. L. Rev. 1582 (1973).
See also Plater, The Takings Issue in a Natural Setting: Flood-
lines and the Police Power, 52 Tex. L. Rev. 201 (1974).
In Just, new residential development in a lake shore wetland
was prohibited under the state's shoreline zoning act. The
Wisconsin court held that the land could be regulated to maintain
its "natural use" since any development of the property would
disturb the ecology of the wetland area. Whatever the merit of
the court's conceptual analysis, the effect of the ordinance upheld
by the court is to restrict all development in the wetland area, as
any development will be detrimental to the natural resource. As
compared with wetlands regulation, emission quotas require an allo-
cation strategy rather than total prohibition. New sources of
pollution are allowed up to a threshold, and the question is
how the emission allocation is to be awarded. The last-come
polluter who is denied a permit for the development of his land
can argue that no reason exists for the refusal other than
quota exhaustion. Even though the reason for the restriction--
to prevent air pollution—is appropriate, his argument is that
his land cannot be fully deprived of all its development value
for any public purpose unless compensation is paid. See the
discussion in the text, infra.
It should be noted parenthetically that floodplain regulations may
allow some development to occur so long as it is constructed to avoid
danger from flooding. For example, in the outer area of the floodplain
it may be possible to construct buildings on elevated platforms which
will keep them over expected flood levels. This option may help protect
the floodplafn regulation from charges of unconstitutionality. See
Vartelas v. Water Resources Comm'n, 146 Conn. 650, 153A.2d 822 (1959).
7. See Mandelker, Planning the Freeway: Interim Controls in Highway
Projects, 1964 Duke L.J. 439 (1964).
8. A variance from the official map may be granted if the map is
over-restrictive because it covers an excessive portion of the
affected property. Rochester Business Institute Inc. v. City
of Rochester, 25 App. Div. 2d 97, 267 N.Y.S. 2d 274 (1966).
See Mandelker, supra note 7 , at 465.
9. See Note, Subdivision Land Dedication: Objectives and Objections
27 Stanf. L. Rev. 419 (1975).
10. Just what next must be proved between the service need generated
by the subdivision and the dedication or in-lieu money payment
demanded from the developer has not yet been determined. For an
expansive view of this requirement see Associated Home Builders of
Greater East Bay, Inc. v. City of Walnut Creek, 4 Cal. 3rd 663,
484 P.2d 606, appeal dismissed, 404 U.S. 878 (1971).
-------
11. See East Neck Estates, Lt. v. Luchsinger, 61 Misc. 2d 619, 305
N.Y.S. 2d 922 (Sup. Ct. 1969) (requirement of excessive amount
of land for beach front dedication held unconstitutional). See
also Zampierie v. Township of River Vale, 29 N.J. 599, 152 A.2d
28 (1959) (building setback line held unconstitutional as applied).
12. Additional Due Process taking issues may arise under emission
quota strategies when the impact of other emission control'techniques
are considered in the context of the emission quota limit. Assume
that a prospective developer will exceed his emission quota even
though he will comply with all applicable new source performance
standards. Suppose further that he can show that by using tall
stacks, by switching fuel on meteorologically poor days, and by
implementing other supplementary control techniques—all at his
additional expense over and above the usual cost of source controls—
he will not violate applicable air quality standards even though his
emissions still exceed the quota. Now assume that unless the develop-
ment can be built no reasonable use can be made of the land. Should
the developer be given a variance? If no variance is given there
may be a Due Process taking. If he is given a variance equal pro-
tection objections may be raised by smaller developers who cannot
afford the same supplementary control techniques.
The Equal Protection objections can be considered first. These
objections have been dismissed in comparable situations when cost of
compliance would arguably exclude developers unable to meet re-
quirements of the regulations. Planned unit development ordinances
are a case in point. Developers usually need to assemble com-
paratively large tracts of land in order to take advantage of these
procedures because these ordinances usually apply only to develop-
ment tracts of more than a minimum size. Courts have not found
these ordinances objectionable even though the effect of the
ordinance is to exclude the smaller developer who cannot assemble
a tract that meets the minimum size requirement. They reason that
the planned unit development process is open to all on the same
terms. C. F. Chrinko v. South Brunswick Township Planning Bd.,
77 N.J. Super 594, 187 A.2d 221 (L. 1963).
Whether a developer subject to an emission quota should be
given a variance under the circumstances described above depends
on how the emission quota strategy is constructed. If the
methodology used to determine the emission quota relates the quota
to the attainment and maintenance of air quality standards then
perhaps a variance can be given if it can be shown that the supple-
mentary methods of control will not lead to a violation of that
standard by the prospective developer even though the emission
quota is exceeded. The acceptability of supplementary control
techniques under the Clean Air Act has been questioned, however.
NRDC v EPA, 489 F.2d 390 (5th Cir. 1974) ( Georgia state implementa-
tion plan) .
Another problem is raised if supplementary control techniques
are allowed as the basis for a variance from the emission quota,
since in this event operating permits will be required and these
must be periodically reviewed to determine if the supplementary
controls remain adequate to avoid air quality standard violations.
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Presumably, it can be a condition of the variance that the
supplementary controls be maintained and implemented during the
life of the new source, with permanent or temporary shutdown of
the facility as the remedy in case of noncompliance.
Whether emission quotas will have to recognize nonconforming
sources also raises Due Process issues. Immediate retroactive
elimination of nonconforming uses has not been allowed under
zoning ordinances, but this principle may not apply in the air
quality context because air quality regulations implement health
standards. Local ordinances such as housing codes which impose
health standards on nonconforming buildings have usually been
applied retroactively. In the alternative, nonconforming sources
may either be counted toward the permissible emission quota limit
or gradually amortized out-of existence over a reasonable period
of time, a regulatory technique that has usually been upheld in
the zoning context.
13. However, floating zone procedures have not been universally
validated. See Haar & Hering, The Lower Gynedd Township Case:
Too Flexible Zoning or an Inflexible Judicary?, Ik Harv. L. Rev.
1552 (1961)-
3-18
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CHAPTER FOUR
METHODOLOGICAL CONCERNS
Beyond the legal issues which surround the use of emission quota
strategies are the methodological concerns over how these quota systems
would be developed. One of the primary questions centers on how the
numeric values of the quota would be established. It will be recalled
that in the Jefferson County case an atmospheric dispersion model was
run to determine the emission ceiling for the floating zones. Also,
the emission allocation planning (EAP) proposal recommended in
California suggested the use of a proportional model to determine an
air basin emission ceiling.
Depending on the kind of emission quota strategy used there are
different approaches to determining the numeric values to be inserted.
The most obvious relationship-occurs between quota values and ambient
air quality. Regardless of the particular emission quota strategy
chosen, the numeric values inserted as quotas theoretically should
produce air quality which meets federal ambient air quality standards.
This implies, in turn, that atmospheric dispersion modeling, which
takes meteorology into account, could be used to connect emissions
generated within a quota system to an estimate of the air quality pro-
duced. Of course, as the California proposal indicated, proportional
modeling, utilizing monitoring data and emissions generated, has also
been considered a viable alternative.
The question of what numeric values to insert, however, is more
complex than whether one uses an atmospheric dispersion or proportional
model. In particular, it is important to determine the emissions gen-
4-1
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eration framework within which quotas will be established. Consider,
for example, how a municipality or county would be assigned a quota of
a particular pollutant for a given year. Let us focus, then, on
emission allocation planning and the development of quotas. There are
two basic choices. The emission quotas can be allocated in terms of
the existing land use configurations and emission characteristics.
Or, the emissions can be allocated based on expected future development
patterns. We shall examine these two alternatives, directing our
attention initially to emission allocation planning.
Current Proportions Allocation
Following the work on EAR in California, a proportional model can
be used to assign emission ceilings to jurisdictions. The jurisdictions
would then be charged with shaping development to fit the pre-established
quota. The difficulty here is that the original allocation to the
jurisdiction would have to be based on some reasonable criterion. The
California proposal used the criterion of extrapolating existing shares
of region-wide emissions into future years. For example, if
Hooverville had 10 percent of total sulfur oxide emissions in the
base year, then the town could keep its share into future years
regardless of the total regional amount of the pollutant. Clearly,
this immutable fixing of a percentage penalized those jurisdictions
at the metropolitan fringe which had little or no development in the
base year.
To provide some flexibility in quotas variances could be granted
to permit growth in formerly sparsely-developed jurisdictions. Variance
procedures could be developed to handle the situations in which the
freezing of emission quota percentages would not be in accordance with
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equity considerations or sound regional development objectives.
Assuming that the choice would be made to follow the California
example of extrapolating base year percentages into the future, a
portion of the total allowable regional emissions could be reserved
for variance situations. For example, 10 percent of total sulfur
oxide emissions might be reserved for use by air pollution control
officials in variances. In this way, the flexibility of the EAP
process might avoid legal challenge. As discussed in the previous
section, EAP may minimize legal problems exactly because of its
discretionary nature.
However, it must also be recognized that, although the focus of
this study is on maintenance, the attainment of ambient air quality
standards is also at issue. In the California study, the proportional
model developed was of a "rollback" variety. Air basin emissions in
.the base year were to be rolled back to the total allowable which met
standards.
Assuming that attainment of standards meant a rollback of 20 per-
cent, for example, in total sulfur oxide emissions, then a reserving
of another 10 percent for potential variances would impose 30 percent
total rollback on the region. This extra 10 percent would be an
additional hardship. Depending on whether or not EAP would be utilized
in situations where attainment of standards was necessary before long-
term maintenance could be considered, this use of a variance reserve
might be a viable option.
At this point, it is important to recall that the focus here is
on the determination of how the numeric values are to be inserted into
an emission quota strategy. The initial discussion has been of EAP,
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and the determination of ceilings for jurisdictions within a region.
The first strategy suggested the use of current base year emission
proportions for jurisdictions and carried these figures forward to
future years. A variance procedure could be instituted to provide
flexibility in allocations to jurisdictions. Also, emission rights
might be exchanged or sold among jurisdictions.
It is also possible to develop a current proportions analysis
for district emission quotas and emission density zoning. The
determination of quotas in EDZ would follow the preceding discussion
about EAP: current district proportions of a fixed total would be
carried forth into future years.
Emission density zoning would operate differently. In EDZ, the
current proportions concept would mean that the future unit area
emission quotas would be based on what exists currently, subject to air
quality maintenance considerations. For example, if heavy industry
contributes ^0 percent of total sulfur dioxide emissions currently,
then heavy industry would be allowed ^»0 percent of future allowable
emissions. This ^0 percent would then be converted to appropriate
unit area emission quotas.
However, as will be seen in the next section, unit area emission
quotas vary by the amount of land developed into polluting activities.
If this kQ percent figure, say 1,000 tons, of the total allowable
emissions is spread over 200 acres of heavy industry, then the unit
area emission quota is 5 tons per acre per year. If, however, the
1,000 tons are spread over 500 acres, then the unit area quota is
only 2 tons.
This example of a current proportions analysis indicates the
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need in EDZ to consider the amount of development which will exist in
the future. And in fact, current proportions analysis as a basis to
developing emission quotas does not adequately handle the question
of future activities and future sources. There is an alternative, the
examination of future development.
Future Configurations Allocation
Rather than using current base year proportions of total regional
emissions, allocations could also be based on future regional develop-
ment configurations. The coherent growth and development of a region
could be jeopardized by an EAR strategy which freezes development in
terms of base year emissions. It seems appropriate to consider the
dynamics of regional structure as an important element in air quality
maintenance. Following this argument, projections of future regional
development became the basis upon which emission quotas would be
established. Current EPA publications on guidelines for air quality
maintenance planning include discussions on projecting growth patterns
2
into future years.
Land use and transportation plans for the region provide one
basis for determining future growth. While EAR has been discussed
primarily thus far, the connections between land use planning and
emission quota strategies also exist for emission density zoning and
district emission quotas. In the discussion of emission density
zoning in the guidelines series there is an analysis of the role of
land use plans in developing the unit area emission rates.
The connections between land use planning and air quality roanage-
Jf
ment have been examined in a number of recent publications. Although
different In emphases and format, the works in the area are all
4-5
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basically concerned with the analysis of land use plans in terms of air
quality objectives. In order to perform such an analysis, the planning
data must be connected to emissions data through the aid of an
emissions inventory. This emissions data is then fed into an atmos-
pheric dispersion or proportional model, and the resulting data
analyzed to determine whether the land use plan will violate air
quality standards. Note that the evaluation of the air quality
implications of a land use plan is based on the connections between
planning data and emissions. As will be discussed subsequently,
there are difficulties in estimating the amount of emissions from
sources which do not yet exist. Before discussing the integration
of land use planning and emission quota strategies into a coherent
air quality maintenance strategy, it is important to understand the
nature of earlier work in this area.
Earl ier Work. As is discussed in a recent EPA publication,-3
there have been a number of research attempts at field testing
various ramifications of the land use and air quality interface. Two
of the research efforts are of particular interest, and important to
the discussion here. Argonne National Laboratory has done the great-
est amount of empirical research on emission quota strategies. In
particular, Argonne examined the air quality implications of emission
density zoning. Argonne was interested in determining if emission
density zoning would be potentially useful in controlling "hot spots,"
and in maintaining air quality within standards.
The conclusions which can be drawn from the work at Argonne are
interesting. First, emission density zoning can act as an air quality
maintenance strategy. By establishing appropriate emission rates
k-6
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(e.g., tons/square mile/day), and including both currently developed
land as well as land zoned by different categories, air quality can
be maintained within standards. This assumes, of course, that there
are no large-scale shifts in zoning such that formerly low emission
areas become populated with heavy polluters. Simply, large low-
density residential areas could not be re-zoned as a heavy industrial
section without re-evaluating the emission rates.
Second, experimental work indicated that air quality standards
could be met by using emission density zoning in place of point
source regulations. Argonne, by estimating the amount of reduction
in pollutants emitted from the uncontrolled situation, compared the
two different strategies. By attaching an economic cost to the point
source regulations and the emission density zoning strategies, an
analysis could be made in terms of dollars. Argonne concludes that
although the amount of control cost through the two strategies vary
by SIC, this variation is not significant. Basically, according to
their calculations and their analytic framework, there are relatively
minor differences between the economic cost of point source regulations
and emission density zoning procedures.
Third, the Argonne research clearly points out the difficulty
of using two-digit, and even four-digit, SIC codes as a basis to
estimating emissions generated from industrial sources. There are
simply too many different kinds of industrial plants and processes
involved at both the two-digit and four-digit levels to allow the
use of the SIC system in predicting emissions. The variance about
mean estimates of pollutant emissions by two-digit SIC code is
extremely high in many cases.
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The difficulty, then, centers on what kind of planning variables
could be used to estimate emissions from future sources. Planners
often have some sense of expected industrial development, and may be
able to project with some accuracy the SIC codes for future industries.
However, Argonne argues that knowledge of SIC codes may not provide
a reasonable basis for estimating emissions.
Environmental Research and Technology, Inc., (ERT) has also
puzzled over the land use and air quality interface question. ERT
was given a contract to determine the air quality impacts of four
land use plans for the Hackensack Meadowlands in New Jersey. ERT
developed the Air Quality for Urban and Industrial Planning (AQUIP)
system which used land use data directly as a basis for projecting
emissions. For illustration purposes, ERT developed a set of emission
o
factors related directly to land use categories. For example, under
certain fuel assumptions, ten dwelling units per acre would generate
twenty-five pounds of total suspended particulates per year. Also,
on acre of heavy manufacturing would generate five thousand four
hundred pounds of total suspended particulates per year. These
figures are Illustrative only, but suggest the kind of framework
within which ERT was working. They recognized, as did Argonne, that
there are wide variations in the amount of emissions by industrial
plants and processes even within such detailed levels of information
as foui—digit SIC codes.
Both Argonne and ERT were concerned with land use and air
quality. Both were very clearly concerned with the serious problems
of estimating emissions from any future land use data. They differ
primarily in terms of general approach. Argonne focused on industrial
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growth and change and evaluated two alternative strategies, point
source regulations and emission density zoning. ERT, on the other
hand, attempted to systematically relate land use planning to air
quality estimates. Both provided large amounts of information which
to this day represent important contributions to understanding the
connections between land use planning and air quality management.
Land Use Planning. The emission quotas assigned to jurisdictions
in EAR could be a direct product of a regional land use and trans-
portation development plan. By connecting up planning data with
emissions generation data, the viability of a regional plan could be
tested. In such a framework, the focus would be on average annual,
or possibly seasonal, pollutant concentrations.
It must be remembered that there are trade-offs between
technology, in the form of stationary and mobile source performance
standards, and the nature and quantity of land use and transportation
activities. The simplest situation, then, would be one where the
set of land use and transportation configurations which violate
long-term air quality standards, under certain technological assump-
tions, were determined. The task of the policy-makers, planners and
air pollution control specialists would be to avoid these land use
and transportation configurations, or if reasonable, change the
technological parameters.
This first method of maintaining air quality basically makes
the metropolitan area a laboratory where unacceptable configurations
of land use and transportation activities are discarded. In more
general terms, what is being developed is an "envelope" of possible
likely futures within which air quality is maintained. Alternate
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futures could be developed within the envelope and evaluated by
decision-makers. From such analysis, a range of potential emission
quotas could be developed for a jurisdiction in EAR and a set of
emission rates developed for a land use class in EDZ.
The process by which emissions could be estimated from land use
plans will be described in a succeeding section. At this point, it
is important to understand only that alternative land use configurations
will mean alternative emissions generation and dispersion. Through
dispersion modeling, ambient air quality concentrations can be pro-
jected. The quotas then act as "lids" within which emissions
generation takes place. The envelope, of likely futures, then, would
provide a negotiation platform within which emission quotas could be
established by jurisdictions in EAP, or set among different land uses
in EDZ.
However, the development of an envelope of possible likely
futures is unrealistic. Most planners and air pollution control
specialists will simply not have the resources available to undertake
such a large task. At best, information might be developed which
would indicate the future air quality impacts of a limited number of
alternative regional land use patterns. It is possible to perform
air quality analyses of a selected set of land use plans for a region.
Middlesex County, New Jersey has done an air quality study to 1985
and 2000 for two different land use plans.^ ERT, in the Hackensack
Meadowlands project, among others, has also done such studies.
The second use of land use plans in emission quota development,
then, involves the more limited objective of using selected land use
plans in the development of emission quotas. In spite of the
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apparent complexities involved in estimating future air quality as
an element in air quality maintenance, experience has shown that certain
wel1-defined studies can be done. Most planners know the local area
well enough to make reasonably informed judgements as to what kinds or
magnitudes of growth will occur in the future. Usually, they have
inventoried land use, population and employment, and are often basing
judgements of future development on past local experience and expected
regional trends. Clearly, the planner cannot predict the future with
any certainty. However, when it is realized that, in many metropolitan
areas, the already-existing physical, social and economic structure is
not going to change much in the foreseeable future, then this difficulty
in predicting changes is not as important as might be thought.
Local air pollution control specialists also know a great deal
about the nature and extent of polluting sources and the type of control
programs which will be implemented. What is needed is a process by
which the information from the various knowledgeable sources can be
systematized within a common framework. In the Middlesex County study,
a technical advisory board was created including individuals from
local and state air pollution control agencies, public utilities, the
regional planning commission and local environmental groups. The infor-
mation gleaned from this advisory board was invaluable, exactly because
communication was established among individuals and groups who
singularly have a great deal of knowledge in different, sometimes over-
lapping areas. The question then becomes: how do you take the
available knowledge from the local area and develop a set of emission
quotas which is based on desirable future land use configurations as
represented in a regional development plan?
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Integrating Land Use Planning and Emission Quotas
The four emission quota strategies form a simple typology by
spatial level. As seen below, the name of the strategy generally
Strategy Spatial Definition
Emission allocation planning (EAR) Political jurisdiction:
metropolitan area, county,
mun icipali ty
District emission quotas (DEQ) Zoning or planning districts
Floating zone emission quotas (FZEQ) Areas drawn about point source
Emission density zoning (EDZ) Unit areas: acre, square
kilometer or mile
relates directly to the spatial unit for which the. emission quota is
developed. All the strategies are conceptually simple variations of
an emissions limitation framework. However, even these basic air
quality maintenance strategies raise interesting methodological
questions when related to land use planning. The four emission quota
strategies can all be placed within a common methodological framework.
This common core of methodological considerations, however, must be
thought of as a framework within which each technique is viewed, and
not as a prescribed way of proceeding. Basically, there are six
areas of importance:
1. The development of an accurate emission inventory and
the collection of monitoring data.
2. The selection of the future land use and transportation
configurations which will be analyzed.
3. The development of emission factors to be used with
land use and transportation data.
4. The calculation of future emissions from the land use
and transportation configurations.
5. The determination of whether a particular land use and
transportation configuration will maintain air quality
standards, through a proportional or dispersion model.
k-n
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6. The development of policy and programs, including emission
quotas, which reflect the findings of the investigation,
including the possible testing of altered land use and
transportation systems.
The six steps outlined above are a straightforward extension of
the current work in the area. In order to. more fully understand the
connection between emission quota strategies and land use planning we
will discuss the emissions inventory, future land use and transportation
configurations, and the development of emission factors in more
detail.
The Emissions Inventory. The development of an accurate emissions
inventory is essential for a number of reasons. First, it operates as
a base point from which future air quality projections are made. The
high level of uncertainty about future land development and transporta-
tion system patterns, accompanied by potentially highly inaccurate
emission estimations, give the inventory a very influential role in
air quality maintenance. The projection of emissions generated at some
future year is tautologically the summation of current emissions and
changes in emission levels between the current and future years. If,
as has been suggested, the estimation of changes in emission levels
between present and future years is highly error-prone, then the
accuracy of current emission estimates becomes even more important.
The process by which emission levels are projected to future years
will be discussed in the section which follows. The important point
here is to realize that sufficient resources must be expended on the
emission inventory to ensure that it adequately reflects the pattern
of pollution generation within the region. It has been suggested by
12
Hi 1st that emission inventories are systematically biased because
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some number of sources are always missed, but rarely, if.ever, are
sources double counted.
Beyond the emission inventory operating as a base upon which
future emissions are projected, the inventory serves a second purpose —
a data source for the calculation of land use related emission factors.
For example, the projection of emissions from future industrial
activity may be conceived of in terms of an emission per employee
ratio. The emission per employee ratio may be totally, or only
partially, derived from the particular emission inventory data for the
study area. The inventory would provide information on the amount of
pollutants generated, and surveys of the firms could be used to ascer-
tain current employees. These ratios, constructed on local data, could
provide a basis for projecting future emissions, assuming that economic
activity projections of future employment by industry type are
available. Obviously, one could also use information collected on
emission levels and employee numbers from other study areas to
supplement local data.
Future Land Use and Transportation Configurations^. Air quality
maintenance strategies, including emission quotas, implies a concern
about the future. A ten year air quality maintenance plan implies
knowledge of emissions which will be generated by yet-to-exist
metropolitan configurations. The EPA work in air quality maintenance
planning does contain procedures for projecting aggregate regional
Ik
growth patterns and allocating this growth to sub-areas. However,
in most instances these procedures will not yield all the land use and trans1
ortation projections needed for the development of emission quotas
at the municipality level, required in EAP, or by unit area, as in EDZ.
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The development of future land use and transportation data as a
base to emission projections will often require direct involvement of
urban and regional planners. It is particularly important that the need
for a reasonable estimate of future land use and transportation activity
be available. However, there is a basic distinction which should be
kept in mind in projecting emissions from such land use and transporta-
tion system activity.
This distinction is between planned requirements and computer
simulation approaches to developing future land use plans. The planned
requirements approach describes traditional land use planning method-
ology, best detailed in Chapin. Population and employment forecasts
are developed. Aggregate amounts of different land use categories
needed to accomodate the population and employment forecasts are
estimated. For example, an expected growth of 25,000 new residents and
10,000 new jobs will create the need for add!tonal amounts of land
use devoted to residential, commercial, institutional, and industrial
activities. These aggregate amounts of different land use categories
must then be allocated to specific geographic locations within the
study area by an intuitive process based on the consideration of
locational criteria specific to the various land use categories. For
example, of an estimated need for 100 new acres of commercial activity
a planner might decide that 20 acres would go to a particular census
tract or planning district based on access, sales potential and the
availability of vacant land in an appropriate zoning category.
Obviously, there are other locational considerations which might have
been considered, but a fundamental fact emerges whatever set of criteria
are used: the land use pattern developed is, at best, a reasonable
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approximation of what might happen.
Traditionally, comprehensive land use plans have been produced
through a planned requirements approach. These land use plans are
normative documents, outlining what should happen. The recognition
that these land use plans would be little more than pieces of paper
without some attempt at shaping urban growth has led to the creation
of the "urban development guidance system" approach. Such an
approach would utilize instruments like zoning, subdivision regulations,
and the location of highways and sewers within an integrated framework
to shape urban development.
The use of emission quota strategies for air quality management
depends on the linkages between future land use and transportation
system development and the quantity of pollutants emitted. The planned
requirements approach for developing future land use plans, coupled to
programmatic attempts at carrying out the plan through the use of such
concepts as the urban development guidance system approach, can at
best present a fuzzy image of future development. There is simply too
much complexity in non-deterministic urban systems to predict
accurately.
The realization by planners of the complexity of urban processes,
particularly in larger metropolitan areas, led to the development
of computerized simulation models. These computer simulation models
predicted future urban development patterns by encapsulating elements
and connections between elements from the real world. ' The models
developed during the past two decades vary widely in their attempts at
simulating reality and in their mathematical structure. However,
these models all share the common failing that they have not become
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integrated into the decision-making processes of the great majority of
land use planning agencies.
It has been argued that one can view computer simulation models
as a logical extension of the planned requirements approach by
systematizing the intuitive processes in locating new land use
activities which are found in the planned requirements approach.^" This
view, whatever its merits, has not been sufficiently persuasive in
convincing many planning agencies to actively seek to develop simulation
models as a more systematic alternative to the planned requirements
approach. From the point of view of air quality management, emission
quota strategies require reasonable projections of future land use and
transportation patterns. At this time, these projections will
generally be based on a planned requirements approach.
The Development of Emission Factors. Emission factors are the
linkages between measures of land use and transportation activities
and the amount of pollutants generated. Basically, the total amount
of pollutants emitted by a stationary or mobile source is a joint
function of the number of units of the activity and the amount of
emissions per unit of activity. This can be stated as follows;
E.= A,* F,
where:
E. : Total amount of a pollutant emitted by a source i during some
1 time period
A. : Numbers of units of the ith activity comprising the source
F. : The amount of emissions, or emission factor, for each unit
1 of the ith activity during the time period
This simple multiplicative equation encompasses a wide range of
analytic procedures by which emissions can be estimated from a source.
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For purposes here, it will only be important to sketch out the range
of options available for estimating emissions as a base to understanding
the potential utilization of the various emission quota strategies.
There are a number of different approaches to estimating emissions
from future land use and transportation configurations. The general
approaches can be classified into the following:
1. Direct employment of land use data in estimating emissions
2. Use of process and space-heating data for industrial, commercial,
residential, and institutional activities
3. Use of surrogate planning data, such as employment and population
projections
In the following discussion, the focus will be on the estimation of
process emissions from industrial sources. Projection of space-heating
emissions from residential, commercial and institutional activities is
19
not as difficult as emissions from industrial processes.
First, the land use and transportation data can be utilized
directly. For example, Environmental Research and Technology, Inc.,
developed a set of emission factors which related land use directly to
emissions. As an illustration, it was estimated that one acre of
light manufacturing would generate IjlOO pounds of sulfur dioxide
20
per year. A simple conversion could then be made from projected
land use acreage to emissions.
Obviously, there is a host of assumptions required to relate land
area directly to emissions. These include such items as the type and
size of structure which is on the lot as well as the kind of
activity being carried out. A basic review of the literature on
air pollutant emission factors will quickly show that the most
widely-known approach to estimating emissions from industrial sources
4-18
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21
utilizes the level of industrial activity in the establishment. For
example, a secondary aluminum operations plant, making lightweight
metal alloys for industrial castings, is estimated to emit 14.5
pounds of particulates per ton of output in the sweating furnace
when the process is uncontrolled. The use of a "baghouse" will reduce
22
the emissions to 3-3 pounds per ton.
The second technique, then, for estimating emissions from future
sources involves knowledge of industrial processes. Although the
air pollution emission factors based on industrial activity are very
useful in estimating pollutants generated from existing sources, they
are less useful in estimating emissions from projected sources.
There are two reasons why future industrial emissions are difficult
to project. First, as suggested earlier, projections of the location
of polluting land uses is an uncertain proposition. Since emissions
vary widely by type of industrial process involved, it is important
to determine the location of future industrial activity accurately by type.
Second, even given a relatively accurate industrial location
projection methodology, it is not clear that emissions can be
satisfactorily determined. For example, as noted earlier, work at
Argonne National Laboratory indicated that using two-digit, or even four-digit,
Standard Industrial Classification system (SIC) codes does not ensure
that emissions will be accurately estimated.
Hence, the estimation of future emissions through the determination
of the kinds and levels of industrial activity projected to occur is
not usually a viable approach. It is difficult to determine where
different types of future industrial activity will occur. Even if one
4-19
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could accurately ascertain the location and nature of future industries,
existing work suggests that there are serious inaccuracies in
estimating emissions from similar industrial plants and processes.
Since there are potentially serious errors in the use of industrial
activity emission factors, it makes sense to consider an alternative
method.
The third method which will be discussed is the use of surrogate
planning variables. Basically, these include employment and population
data. Thus, an emission per employee ratio can be developed which
utilizes future employment projections. This technique was employed
in Middlesex County, New Jersey.
In a study performed jointly by the Middlesex County Planning
Board and an environmental consultant, air quality estimates were
23
obtained for 1985 and 2000 for particulates and sulfur dioxide.
The planning board staff had developed land use plans for these
two years. These plans were sufficiently detailed, including
employment, land use and transportation data for 89 analysis areas
2A
within the study area. The current (1972) emissions were estimated
from an existing inventory. Emissions from industrial growth between
1972 and the years of 1985 and 2000 were estimated from surveys and
planning information. The major polluters in the study area were
interviewed to ascertain plans for expansion and to determine future
pollution abatement plans. Finally, emission per employee ratios,
derived from analysis of local industries, were used to develop
emissions from projected industries. The study recognized the varying
pollutant characteristics of different industrial classes. Separate
employee projections, and emission per employee calculations, were
^-20
-------
done in each analysis area for the following S.I.C. categories:
chemicals (28); petroleum (29); primary metals (33); power plants (49);
and al1 others.
To summarize the approach developed in Middlesex County, a three-
fold strategy was developed to estimate future emissions. First,
current emissions from existing sources were derived from an emissions
inventory. Second, future emissions from existing sources were
estimated by surveys of expansion plans and pollution abatement intentions.
Local air pollution control officials provided important information.
Third, future emissions from non-existing sources were derived using
emission per employee ratios and projections of future employment.
The Middlesex County study is a model of what can be done in
estimating emissions from land use and transportation planning data.
The projected emissions of particulates and sulfur dioxide were entered
into an atmospheric dispersion model, and ambient air concentrations
calculated for 1985 and 2000 for two different land use plans.
The study indicated that high concentrat ions,exceed ing federal standards,
could be expected in future years in Mi idlesex County. From such analyses,
emission quotas could be developed to ensure that future air quality
would be maintained within federal standards.
The U.S. Environmental Protection Agency has published two
documents that substantially aid in the process of developing emission
factors and in calculating emissions from land use and transportation
configurations. Volume 7, Projecting County Emissions, of the Guidelines
for Air Quality Maintenance Plannirig'and Analysis presents techniques for
projecting emissions for each county located within an air quality maintenance
k-2]
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area at five-year intervals. Volume 13, Allocating Projected Emissions to
Sub-County Areas presents a set of techniques for determining emissions
from municipalities, census tracts, and planning districts within a county.
The report sets out a framework for determining emissions from residential,
transportation, commercial, institutional, industrial, solid waste disposal,
and other miscellaneous sources. It is an important basis reference
document for any agency faced with the problem of determining sub-county
emissions.
It is important at this point to differentiate between the various
emission quota strategies in terms of their use of emission factors.
If emission quotas were assigned to jurisdictions based on analyses
such as carried out in Middlesex County, then EAR becomes a straight-
forward extension of the interaction between land use planning and air
quality maintenance.
Should the original land use plan prove unacceptable because of the
projected ambient air pollutant concentrations, then the plan can
be re-designed. The revised emissions generation data resulting could
be fed into the dispersion model again. When an acceptable plan, in
terms of air quality and other dimensions such as economic viability
and political feasibility, is found, the plan then becomes the basis
upon which emission quotas are developed for each jurisdiction.
In EAR, then, the emission factors are developed using the three
general approaches outlined at the beginning of this section. District and
floating zone emission quotas could be derived in a similar fashion.
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Emission density zoning, however, presents a different type of
problem. The emission factors for projected development would
25
actually be the proposed emission quotas per unit area. Thus, if
the quota were 2 tons of particulates per acre of lot size per year
for heavy industry, this 2 ton quota would be inserted as an emission
factor. It would be important, then, to know the amount and location
of the projected acreage of the various land use categories controlled
by EDZ regulations.
Future air quality would be estimated utilizing the selected EDZ
emission quotas for new sources, the emissions inventory for existing
sources, and ambient background concentrations. The emissions generated
would be fed into a dispersion model, following the process outlined
above. Should projected ambient air pollutant concentrations exceed
federal standards, then the emission quotas in the EDZ strategy
would have to be altered.
There is an essential point here which must be clearly understood.
Assuming an average fixed assimilative capacity within the region over
the long run, then the unit area emission quotas in an EDZ strategy
will vary with the amount of projected development.
Empirical work at Argonne National Laboratory demonstrates the
connection between EDZ emission rates and the amount of area under
26
development by a particular class of polluters. Using Chicago as
a study area, particulate concentrations were estimated through an
atmospheric dispersion model for two different situations. First,
all current land use in heavy and light industrial categories was
placed within an EDZ unit area quota. The optimum emission rates were
3.3 tons per day per square mile for heavy industry, and .85 tons
-------
for light industry. When the analysis was run for land currently
zoned for heavy and light industry, the emission rates dropped to
2.5 tons and .55 tons. Note that in both cases federal air quality
standards operated as an upper boundary: ambient concentrations were
kept within the standards. The particular emission rates chosen were
selected from an infinite set of alternatives based on minimizing the
annualized cost incurred by existing sources for the purchase of
pollutant control devices necessary to meet the unit area emission rates.
The emission rates were reduced by 2k percent for heavy industry
and 35 percent for light industry when currently zoned land was used
rather than current land use. This connection between unit area emission
quotas and the amount of land in development shows the difficulty of
basing EDZ quotas on the maintenance of projected ambient air concentrations
within federal standards. As the amount of development varies so also
the emission rates can vary. Emission density zoning faces tH-3
difficulty that there 's a large degree of uncertainty in any projection
of a metropolitan development pattern for a giyen year. Eyen more, the
metropolitan area changes over time. Developing unit area emission
quotas for particular land use and transportation plans means that
deviations from the plan may result in ambient air quality standards
not being maintained. It may not be realistic to base EDZ unit area
quotas on a fixed development pattern, unless one were to argue that
27
these rates could be altered in the future.
Of course, there may be a way of avoiding the direct connection
between the unit area emission quotas and the amounts of developed
-------
land. Unit area quotas could be assigned without regard to type of
land use, and a market could be established for the exchange of emission
rights among land owners. Alternatively, unit area quotas assigned
according to type of land use could vary according to the location of
that land use. Another possibility is to assign the quotas according
to type of land use, but base the quotas on anticipated ability of land
owners to comply, rather than on the need to maintain air quality standards
The possibilities are many. Although this report is written with the
implied assumption that EDZ must be tied to traditional land use zoning
in order to be effective, this need not be the case. Some communities,
particularly those with ineffectual land use zoning, may wish to sidestep
the problems inherent in maintaining unit area quotas while still granting
variances, rezonings, and special use permits under land use zoning
regulations.
In summary, the emission factors attached tq^projected development
are essential elements in determining the viability of air quality
maintenance objectives in future years. In EAP and district and
floating zero emission quotas, the emission factors used may be
derived directly from land use data, from process and space-heating
information, and from surrogate data such as employment projections.
In emission density zoning, the unit area emission quotas are the emission
factors for new sources.
Source Configurations
In the examination of emission quota strategies the focus has
centered on their use in controlling stationary sources. There are a
number of issues which should be examined given this stationary source
orientation. First, what can be said at this time about the connection
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between stack height regulations and emission quotas? Second, how
would the location of a stack within a parcel affect emission quotas?
Finally, under what conditions could mobile and indirect sources be
treated within an emissions quota framework?
Stack Height. Other than the use of stack height requirements in
2g
the Cook County EDZ regulations there has been little discussion of
the topic. Since tall stacks can reduce pollutant concentrations in
the vicinity of the source, EDZ regulations could contain quotas
which vary with the height of the stack. This assumes, however, the
sources are isolated enough that the tall stacks which distribute pol-
lutants over a larger area, are not increasing concentrations exces-
29
sively at distant points removed from the source. Since air quality
maintenance areas typically are in highly-polluted metropolitan locations
it is not clear that tall stacks should be allowed to pollute more per
unit area than short stacks. Clearly, there are complex micrometeoro-
logical effects which might argue for a connection between EDZ regula-
tions and stack heights, but this would be a case-by-case decision and
not a general rule.
A similar argument holds for floating zone and district emission
quotas. Only if the sources are isolated should the FZEQ. or DEQ
ceilings take stack height into consideration. Emission allocation
planning, as a more broadly drawn tool, is not directly connected
to stack height regulation except in terms of two administrative
issues. First, are tall stacks from other regions upwind causing
high background concentrations? Second, should emission ceilings be
raised in jurisdictions where tall stacks are being used?
k-26
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Stack Location. The location of the stack on the lot is of
concern for two reasons. First, a heavy polluter can cause high
ground level concentrations near the source depending on meteorological
conditions. Second, land use based emission factors, and in particlar
unit area emission quotas, often view polluters as area sources.
On the first issue, it is not clear exactly how the site location of
the stack can be handled in some of the emission quota strategies,
such as EDZ and EAR. In EDZ the emission ceiling is set for the
particular size of lot chosen, and does not vary by location of the
stack. It does not seem reasonable to develop a connection between
the emission ceiling and stack location without some logical basis.
The clearest rationale for concern with stack location would be the
avoidance of high pollutant concentrations in sensitive areas.
Fugitive emissions are also important. These are emissions that
escape to the atmosphere through windows, doors, vents, etc., but not
through a primary exhaust system, such as a stack, flue, or control
system. Fugitive emission often have a greater effect on air quality
in the Immediate vicinity of a source than do stack emissions. Thus,
stack location probably should not be considered in setting emission
cei1 ings.
Floating zone emission quotas, however, may be another matter.
Since the zone is circumscribed around the source, it would be quite
easy to place the center of the zone at the primary stack location.
Although again there is no direct connection between stack location
and ambient pollutant concentrations, the FZEQ. is at least partially
sensitive to the placement of the stack on the lot. As the center
of the floating zone shifts the total amounts of emissions within the
zone will vary.
4-27
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The second issue regarding stack location centers on the use of
area source emission rates to replicate future point sources. For
example, in the determination of EDZ emission rates future development
is simulated as area sources, emitting, for example, 5 tons per acre
over the entire lot. Clearly, large point sources will not emit
exactly as area sources. The question, not answerable here, is how
much distortion could one expect by substituting area for point
sources, particularly where these point sources are located at one
extreme end of the lot? There are examples in simulating future
30
development where area sources have been substituted for point sources.
In the situation where one is already dealing with crude data inputs
and expects crude output this decision is perfectly reasonable.
Mobile and Indirect Sources. As discussed earlier, emission
quota strategies have been analyzed in this study in terms of stationary
source applicability. The question now centers on the use of emission
quotas for mobile sources and pol1ution-inducing indirect sources.
It is clearly possible tp use emission quotas for mobile sources,
although the framework of analysis differs considerably from stationary
sources.
Two emission quota devices, emission allocation planning and
district emission quotas, can be used. Emission allocation planning
is more amenable to oxidant control because both are regional in
effect. Basically, emission ceilings would be placed on jurisdic-
tions in terms of the formation of hydrocarbon precursors of oxidants.
In all likelihood, until adequate models of oxidant formulation
and transport are developed a proportional model framework would be
used to compare concentrations-current monitored data and federal
limits—with region-wide emissions—current levels and proposed
ceilings.
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me tMf quotas could then become a component of any transportation
control plan developed for the region. The determination of the
ceilings for the different jurisdictions would follow the current
proportions allocation methodology outlined earlier. Given the
development of an adequate oxidant dispersion model there is the
potential of using future configurations allocation based on a regional
development plan.
The purpose of using EAR for mobile sources would depend on the
allocation process utilized. Under a current proportions allocation,
EAR could ensure that jurisdictions each would be given a fixed share
of total emissions and, under a roll-back, a fixed share of required
regional emission reductions. This fixed share would distribute
the emission reductions on an equal percentage basis, thus equalizing
the impacts. Under a future configurations allocation, the EAP limits
could be used to foster a regional development plan. In controlling
emissions levels we are, of course, indirectly controlling vehicle-miles
traveled.
The use of district emission quotas would be directed at localized
concentrations of carbon monoxide (CO). A central business district
(CBD) could be treated under a DEQ_ strategy. A proportional model,
relating current CBD monitored CO concentrations and federal standards
31
to current and allowable emissions, could be used. Although crude,
such a method could provide rough estimates of needed emission reduc-
tions for attainment of standards or the emission ceilings for maintenance.
Indirect sources, those pollution-inducing land use activities
such as shopping centers and stadiums, are handled under an emission
quota framework in a fashion similar to mobile sources. On the regional
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level, EAR provides a framework within which indirect sources can be
evaluated. Attached to the development of an indirect source are
the emissions from the land use activity as well as emissions from
induced mobile sources. Emission allocation planning can encompass a
vector of pollutants, establishing jurisdictional ceilings across
the entire vector. In its broadest context, EAR would contain quotas
for a range of pollutants under federal control, such as particulates,
sulfur oxides, hydrocarbons and carbon monoxide. Indirect sources
could then be evaluated in terms of their contributions to the full
range of pollutant totals for the jurisdiction. This use of EAR
32
could supplant any indirect source regulations existing at the time,
providing a larger regional perspective.
It may also be possible to use district emission quotas in areas
where indirect sources will locate. By placing localized concentrations
of capbon monoxide within a DEQ ceiling indirect source emissions can
be evaluated. This use of DEQ for indirect sources is not a recommended
approach at this time. The connections between the use of DEQ. and
current indirect source regulations require careful analysis beyond
the scope of this study.
Conclusion
This chapter on the methodological aspects of emission quota
strategies has examined alternative methods for determining the numeric
values to be inserted into the various emission ceilings. There
is the particular issue which must be faced regarding the choice of
a regional development pattern. Do we extrapolate emission ceilings
from current situations or from future expectations?
In the next chapter we will analyze the prospects ancl problems
with emission quota strategies. We should keep in mind the discussions
above about the similarities and differences of the four different
strategies with regard to the development of numeric estimates of quotas.
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NOTES
1. Livingston and Blayney, Report on Guidelines for Relating Air
Pollution Control to Land Use and Transportation Planning in the
State of California (1973).
2. See United States Environmental Protection Agency, Guidelines for
Air Quality Maintenance Planning and Analysis, Vol. 2: Plan
Preparation, Vol. k: Land Use and Transportation Considerations,
Vol. 5: Case Studies in Plan Development, Vol.13: Allocating
Projected Emissions to Sub-County Areas (197*0 C Hereinafter
cited as Guidelines, Vol. 2,k,5 or 13}.
3. Guidelines, Vol. 3, I 1-29 to 11-35.
*t. See Guidelines, Vol. k; A.M. Voorhees and Associates, Inc.,
A Guide for Reducing Air Pollution through Urban Planning (1971);
and A.H. Epstein, et al., A Guide for Considering Air Quality in
Urban Planning (197*0.
5. Guidelines, Vol. *t.
6. A.S. Kennedy, et al., Air Pollution/Land-Use Planning Project,
Phase II Final Report (1973) C Hereinafter cited as Kennedy].
7- Environmental Research and Technology, Inc., Hackensack Meadowlands
Air Pollution Study (1972) [Hereinafter cited as Environmental Re-
search and Technology, Inc.}.
8. Guidelines, Vol. k, 58 to 61 and B-l to B-7; and B.H. Willis and
J.R. Mahoney, Planning for Air Quality, paper presented at the
annual meeting of the Amer. Inst. of Planners (November 1972).
9. TRW, Inc. and Middlesex County Planning Board, Air Quality
Management and Program Recommendations (197**) H Hereinafter
cited as TRW, Inc. and Middlesex County Planning Board 1.
10. Environmental Research and Technology, Inc.
11. See Guidelines, Vol. k, 53, and J.J. Roberts, E.J. Croke, and
S. Booras, A Critical Review of the Effect of Air Pollution
Control Regulations on Land Use Planning, 25 J. Air Pollution
Control Ass'n 500 (1975).
12. G.R. Hilst, Sensitivities of Air Quality Prediction to Errors and
Uncertainties in Proceedings of Symposium on Multiple-Source
Urban Diffusion Models (A.C. Stern, ed., 1970).
13. TRW, Inc. and Middlesex County Planning Board; and Guidelines,
Vol. 13, 87 to 115-
H. Guidelines, Vol. 2 and 13.
4-31
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15. F.S. Chapjn, Jr., Urban Land Use Planning (1965).
16. See E.J. Kaiser, et al., Promoting Environmental Quality through
Urban Planning and Controls (1973) and G. Hagevik, D. Mandelker,
and R. BraM, The Contribution of Urban Planning to Air Quality,
7-6 to 7-13 (197*0 C Hereinafter cited as Hagevik, Mandelker,
and Brai 1 3 .
17- For an overview, see H.J. Brown, et al., Empirical Models of
Urban Land Use: Suggestions on Research Objectives and Organization
(1972) and D.A. Krueckeberg and A. Silvers, Urban Planning Analysis:
Methods and Models, Chpts. 9 and 10 (197^). C Hereinafter cited
as Krueckeberg and Silvers}. For a basic discussion of the relation-
ship of land use and transportation models to air quality see
R.K. Brail, Modeling the Interface between Land Use, Transportation
and Air Pollution in The Relationship of Land Use and Transportation
Planning to Air Quality Management (G. Hagevik, ed., 1972)
18. Krueckeberg and Silvers, Chapter 9-
19- See the discussion in Hagevik, Mandelker, and Brail, Chpt. 7-
20. Hagevik, Mandelker, and Brail, 7~20.
21. Hagevik, Mandelker and Brail, 7-21 to 7-25.
22. U.S. Environmental Protection Agency, Compilation of Air Pollutant
Emission Factors, (Pub. No. AP-^2, 1972).
23. TRW, Inc. and Middlesex County Planning Board.
2k. The study area consisted of all of Middlesex County and Franklin
Township in adjacent Somerset County.
25. See Guidelines, Vol. 3, I 1-29 to 11-35.
26. Kennedy, Vol. 3, 18 to 29.
27. Guidelines, Vol. 3, I 1-35.
28. Kennedy, Vol. 3,19 to 21.
29. Guidelines, Vol. 3, I I 1-51.
30. TRW, Inc. and Middlesex County Planning Board;and Kennedy, Vol. 3
31. TRW, Inc. and Middlesex County Planning Board, Chpt. 2.
32. See Comment, Control of Complex Emission Sources - A Step Toward
Land Use Planning, k Ecology L.Q. 693 (1975).
4-32
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CHAPTER FIVE
THE FUTURE USE OF EMISSION QUOTA STRATEGIES
Problems and Prospects
In general, emission quota strategies hold promise as a technique
for advancing air pollution objectives. However, this study indicates
that emission limitation techniques present some serious problems
in adoption and implementation. Let us briefly indicate some general
objections to emission quota strategies as currently developed.
First, emission quota strategies deal best with non-reactive pollutants
from stationary sources, such as particulates and sulfur dioxide.
Although the last chapter indicates that mobile and indirect sources
might be encompassed within emission quota strategies, particularly
EAP and DEQ., more work needs to be done to integrate these vehicular-
related pollution sources with emission quota strategies. This
problem is an important one, since location decisions about stationary
sources of industrial pollution which are made within an emission
quota strategy will necessarily affect the location of indirect sources,
such as commercial establishments and large apartment developments.
Second, the emission quota technique may require an extremely
controlled type of regulation which may be difficult to implement.
Because of the legal problems created, air pollution control and zoning
agencies may not be able to implement emission quotas on a self-
regulating first-come basis. However, the adoption and enforcement
of stringent emission quota controls that attempt to match the emission
quota in advance with specific types of land use are very difficult to
5-1
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implement. Stringent controls of this type mgy lead to serious
distrubances in the local land market because the controlling
agencies simply cannot force the right facility with the proper
emission level to appear in the right area, at the right place, at
the right time. Of the four emission quota strategies, emission allo-
cation planning appears the easiest to implement, affords the most
flexibility, and raises fewer legal issues than the other strategies
that have been discussed.
At the same time, EAR is such a generalized approach that it is
not clear that direct enforcement of the ceilings would be feasible.
The California experience, as summarized in Chapter Two, indicates the
difficulty which EAR has had in that state. Emission allocation
planning can only work with the designation of administering agencies
which have authority to sanction wayward jurisdictions. For example,
can regional councils be developed to administer EAR which have appro-
priate representation from air pollution control and planning agencies
and reasonable authority to deny permits to construct?
Emission density zoning has been proposed by Roberts, Croke and
1
Booras as the central land use control device for air quality manage-
ment. It does represent a clearly-delineated connection between
land use and pollutant emissions. As such, EDZ is easier to comprehend
than EAR and is possibly easier to administer. Roberts, Croke and
Booras develop an interesting integrated framework which utilizes both
EDZ and transferable emission rights. The use of emission rights
provides flexibility, permitting polluters requiring more land under
EDZ regulations to purchase the rights to pollute from other adjacent
landowners.
5-2
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The proposal by the three authors deseryes serious consideration.
Howeyer, some of the objections raised earlier about EDZ should be
mentioned. First, there is the potential legal problem of the taking
issue. As argued earlier in Chapter Three, courts may find EDZ
unconstitutionally burdensome if excessive investment in additional
land were required in order to comply with the emission quota.
Such a situation is likely to occur with land-intensive heavily-
polluting sources. It seems also reasonable to assume that the require-
ment of purchasing an excessive amount of emission rights from nearby
landowners will meet similar constitutional objections.
Second, EDZ may lead to increased dispersal of activities because
polluters will seek large enough quantities of vacant land to satisfy
emission quotas. Often, large amounts of vacant land are available
on the fringe of metropolitan areas. Accompanying this spreading of
development may be a corollary increase in vehicle-miles traveled.
This increase in vehicle-miles, and the emissions generated, will
occur if the journey-to-work average trip length of workers in the
establishment is larger than would have occurred if the establishment
were not located based on EDZ regulations. Correspondingly, vehicle-
miles would also increase if automobiles rather than mass transit were
more likely to be used at the site chosen because of EDZ regulations.
Finally, EDZ faces the issue of how the unit area emission quotas
would be estimated. Earlier discussion in Chapter Four suggests
that there is no easy resolution. It is not enough to say that the
unit area quotas will be based on some estimate of future growth
without clearly specifying on what basis the growth will be estimated
and how the emission rates can be changed in the future if it is
5-3
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determined that air quality (s not being maintained,
Thusfar, the prospects and problems of emission allocation planning
and emission density zoning have been discussed. The minimal attention
given to district and floating zone emission quotas reflects their
relatively weak role in air quality attainment and maintenance.
Both DEQ and FZEQ. face legal problems, as outlined in Chapter Three.
Although DEQ may be useful as an indirect source control mechanism,
additional research should be carried out before attempting implementa-
tion. Floating zone emission quotas may prove helpful in controlling
hot spots. Additional experience with FZEQ, such as Jefferson County,
Kentucky, would be necessary before the success of the device could
be assessed in terms of hot spot control and legal viability.
Recommend at ions
There are two basic recommendations of this study. First,
communities wishing to use one of the emission quota strategies
discussed here should take great care to develop a technically
sound, equitable, regulation that is well understood by the
community. Until more experience is gained in the use of emission
quota strategies, each success and each failure will be in the
spotlight. Hastily prepared regulations can be harmful not just to
the community that tries them, but to others that may be deterred
from trying emission quota strategies because of the failure of the
hastily prepared regulations.
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The second recommendation is that additional research be carried
out into the use of EAR and EDZ. Such research should focus on
selected metropolitan areas which have: (1) strong planning efforts,
including a we11-developed data base on population, employment and
land use, and (2) solid air quality data, including a we 11-developed
monitoring network and a recent reliable emissions inventory. The
purpose of the research would be to carry out an actual EAP and EDZ
analyses which would include the numeric quotas to be assigned to
jurisdictions and unit areas. Evaluation would be a necessary component
of the research, including an analysis of the economic and political
feasibility of the strategies. Only through the actual development
of the quotas for a region within an integrated framework encompassing
air quality objectives and land use planning can these two maintenance
strategies, emission allocation planning and emission density zoning,
be properly evaluated.
In summary, air quality maintenance may well require the kind of
linkages between urban activity and pollutant emissions found in
EAP and EDZ. More work needs to be done, but it is already apparent
from this study that there are problems and prospects with the two
strategies. Only through intensive continued research will the future
of emission density zoning and emission allocation planning as air
quality maintenence strategies be determined.
5-5
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NOTES
1. J.J. Roberts, E.J. Croke, and S. Booras, A Critical Review of the
Effect of Air Pollution Control Regulations on Land Use Planning,
25 J. Air Pollution Control Ass'n 500 (1975) C Hereinafter cited
as Roberts, Croke, and Booras 3.
5-6
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APPENDIX A
SUMMARY OF IMPACT OF SB 98 - AIR POLLUTION EMISSION LIMITS
THE SAN FRANCISCO BAY AREA
As Amended January Ik, 1975
A. ESTABLISHMENT
1. By act of the Legislature
B. REVISED POWERS OF THE STATE AIR RESOURCES BOARD
1. By July 1, 1976, the board must declare Basinwide Air Pollution
Control Coordinating Councils throughout the State as active.
(In the Bay Area, the Bay Area Air Pollution Control District
Board is the council.)
2. The board shall establish air quality goals for each basin to
achieve and maintain air quality "at or better" than State and
Federal standards.
a. If the board finds, after a public hearing, that maintenance
of air quality is not compatible with State and basinwide
social and economic goals, it may specify less stringent
air quality goals.
b. These less stringent goals must not be less than the health
warning levels defined in the State Emergency Episode
Contingency Plan.
3. By July 1, 1977, the board shall establish allowable emission
limits for each air basin for 10- and 20-year periods.
k. The board shal1:
a. Prepare information on the quantity and type of air pollution
emissions and their relationship to the type, category,
density and extent of land use and development.
b. Prepare and distribute guidelines for projecting air pollution
emissions from land use categories and densities in land use
plans and from transportation modes in transportation plans.
C. DUTIES OF THE BAY AREA AIR POLLUTION CONTROL DISTRICT (BAAPCD)
1. By December 31, 1977, the district shall subdivide the air basin
and allocate emission limits to each subdivision.
2. The district board shall revise its orders, rules and regula-
tions to be consistent with the allocation of emission limits.
a. Revised regulations shall include those aimed at preventing
the construction or operation of facilities directly or
indirectly generating emissions that would cause allocated
limits to be exceeded.
b. Complex sources are defined to include but are not limited
to airports, highways, shopping centers, and sports
faci1i ties.
3- The board shall require the developer of any major project (in-
cluding housing) inducing growth or having a significant impact
on air quality to obtain a permit for the project from the air
pollution control officer.
4. The air pollution control officer shall not issue a permit for
construction, alteration or operation of a project:
A-1
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a. In a city or county that does not have a general plan
approved by the district board.
b. For which emissions projected after December 31 > 1986 will
cause the emission limits allocated to the air basin sub-
division, city or county to be exceeded.
5. The district must:
a. Provide technical assistance to cities, counties, councils
of government and regional transportation agencies on the
preparation of general and transportation plans that con-
form to emission limits allocated to the Bay Area.
b. Define projects likely to have a significant impact on air
quality or are growth inducing.
c. Review environmental impact reports.
d. Review city and county general plans and regional land use
and transportation plans, and approve those that it judges
will maintain projected emissions within limits allocated
to the city, county or air basin subdivision.
e. Review applications to local agency formation commissions
and notify the commissions of any expected violations of
air quality standards that will result from approval of
applicat ions.
f. Appoint an advisory committee of experts in air resources,
public health, land use and transportation planning, trans-
portation operations, and industry, and agriculture.
6. The board may also establish bench mark years for the prepara-
tion of city and county general plans and regional land use
and transportation plans.
D. IMPACT ON REGIONAL AND LOCAL AGENCIES
1. The Regional Transportation Plan of the Metropolitan Trans-
portation Commission (MTC) must be consistent with the emission
limits allocated for the air basin and its subdivisions.
a. The plan's environmental impact statement must contain a
report projecting emissions resulting from the proposed
transportation system.
b. MTC must obtain a statement from BAAPCD that emissions
projected from the proposed transportation system will not
cause the emission limits allocated to the air basin or
its subdivisions to be exceeded.
2. Land use and circulation elements of city and county general
plans must be amended within 1 year of the receipt of allocated
emissions limits from BAAPCD so that projected land uses and
transportation facilities shall not cause the emission limits
allocated to the city, county or air basin subdivision to be
exceeded.
3. If a city or county general plan is disapproved by the BAAPCD
for failure to meet emission limits, the city or county shall
submit within 3 months a revised plan and projection of emissions
to BAAPCD for review.
4. Cities and counties are required to deny approval of final or
tentative subdivision maps if it finds that the subdivision will
cause emission limits allocated to the air basin subdivision
within the city or county to be exceeded.
5. Local agency formation commissions would be required to consider
the impact on air quality of any proposed city incorporation,
A-2
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annexation or formation of special districts, and to submit
to BAAPCD an air quality impact report on such proposals.
6. Public agency procedures for evaluating projects and pre-
paring environmental impact reports shall cover emissions
generated by proposals and whether they will cause emission
limits to be exceeded.
REGIONAL AGENCY REORGANIZATION
1. When the State Air Resources Board determines that a multifunc-
tional regional organization encompasses substantially an
entire air basin and has responsibility for planning for air
quality for the region, the multifunctional regional organiza-
tion shall assume the responsibility for allocating emission
limits from a basinwide council.
A-3
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APPENDIX B
GLOSSARY OF LEGAL TERMS
DUE PROCESS; TAKING: The Due process requirement means that state
and local regulations must serve some reasonably acceptable purpose
under federal and state constitutions. Otherwise, the regulation
will be held unconstitutional as a "taking" without Due Process of
Law. As applied in the land regulation situation, a regulation
that violates Due Process is a taking because it "takes" from the
landowner without compensation the value of his land for the use
which is prohibited by the regulation.
DELEGATION OF POWER: State and county administrative agencies and
local governments may not exercise regulatory powers unless these
powers have been conferred by state legislation. The term applied
to the process through which state legislation confers these powers
is known as "delegation of power."
PREEMPTION: This term refers to the displacement of the regulatory
powers exercised at one level of government by comparable regulatory
powers exercised by a higher level of government. Thus, the Clean
Air Act provides that any air quality regulations adopted by EPA
"preempt" any less stringent air quality regulations adopted by
state and local governments.
B-1
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TECHNICAL REPORT DATA
(Please read Instruclions on the reverse before completing)
REPORT NO.
EPA-450/3-75-079
3. RECIPIENT'S ACCESSION-NO.
TITLE AND SUBTITLE
Emission Density and Allocation Procedures
for Maintaining Air Quality
5. REPORT DATE
June 1Q75
6. PERFORMING ORGANIZATION CODE
AUTHOR(S)
R.K. Brail, D.R. Mandel.ker, T.A. Sherry and
G. Hagevik
8. PERFORMING ORGANIZATION REPORT NO.
PERFORMING ORGANIZATION NAME AND ADDRESS
Center for Urban Policy Research
Rutgers University
New Brunswick, New Jersey 08903
10. PROGRAM ELEMENT NO.
11. CONTRACT/GRANT NO.
68-02-02-78
2. SPONSORING AGENCY NAME AND ADDRESS
Environmental Protection Agency
Office of Air and Waste Management
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
13. TYPE OF REPORT AND PERIOD COVERED
14. SPONSORING AGENCY CODE
15. SUPPLEMENTARY NOTES
16. ABSTRACT
The ratio of the mass of an air pollutant emitted per unit of land area in
any given time interval forms the basis of emission control regulations
based on land area. This report examines four types of such regulations:
emission allocations, floating zone emission quotas, district emission quotas,
and emission density zoning. Experience with floating zone emission quotas
in Jefferson County, Kentucky and with emission density zoning in Cook County,
Illinois is examined. Legal issues relating to equal protection and due
process, and methodological concerns relating to the integration of land use
planning and air pollution control, are discussed.
KEY WORDS AND DOCUMENT ANALYSIS
DESCRIPTORS
b.lDENTIFIERS/OPEN ENDED TERMS
COSATI Field/Group
Planning and Zoning
Area Emission Allocations
Land Use
Emission Standards
Emission Density Zoning
Emission Allocation Plann
Emission Quota Strategies
ing
13. DISTRIBUTION STATEMENT
Unlimited
19. SECURITY CLASS (This Report)
Unclassified
20. SECURITY CLASS (This page)
Unclassified
21. NO. OF PAGES
100
EPA Form 2220-1 (9-73)
C-l
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