[Senate Hearing 106-152]
[From the U.S. Government Publishing Office]
S. Hrg. 106-152
CONFORMITY UNDER THE CLEAN AIR ACT
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HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
JULY 14, 1999
__________
Printed for the use of the Committee on Environment and Public Works
U.S. GOVERNMENT PRINTING OFFICE
59-363 cc WASHINGTON : 1999
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred sixth congress
JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire DANIEL PATRICK MOYNIHAN, New York
JAMES M. INHOFE, Oklahoma FRANK R. LAUTENBERG, New Jersey
CRAIG THOMAS, Wyoming HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri BOB GRAHAM, Florida
GEORGE V. VOINOVICH, Ohio JOSEPH I. LIEBERMAN, Connecticut
MICHAEL D. CRAPO, Idaho BARBARA BOXER, California
ROBERT F. BENNETT, Utah RON WYDEN, Oregon
KAY BAILEY HUTCHISON, Texas
Jimmie Powell, Staff Director
J. Thomas Sliter, Minority Staff Director
(ii)
C O N T E N T S
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Page
JULY 14, 1999
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 4
Bond, Hon. Christopher S., U.S. Senator from the State of
Missouri....................................................... 6
Charts....................................................... 12-14
Letters, submitted for the record............................ 14-22
Statements:
Associated General Contractors of America................ 22
EPA's Statements on Conformity in the Federal Register... 9
Summary, environmental lawsuits.............................. 24
Text of S. 1053, a bill to amend the Clean Air Act to
incorporate certain provisions of the transportation
conformity regulations, as in effect on March 1, 1999...... 10
Boxer, Hon. Barbara, U.S. Senator from the State of California... 67
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island 1
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 4
Lautenberg, Hon. Frank R., U.S. Senator from the State of New
Jersey......................................................... 25
Voinovich, Hon. George V., U.S. Senator from the State of Ohio... 2
WITNESSES
Carlson, E. Dean, Secretary of Transportation, Kansas Department
of Transportation.............................................. 45
Prepared statement........................................... 82
Responses to additional questions from:
Senator Chafee........................................... 86
Senator Lieberman........................................ 86
Kinstlinger, Jack, Vice Chairman, American Road and
Transportation Builders Association............................ 64
Charts......................................................108-114
Prepared statement........................................... 104
Linton, Gordon J., Administrator, Federal Transit Administration,
Department of Transportation................................... 33
Prepared statement........................................... 80
Perciasepe, Robert, Assistant Administrator, Office of Air and
Radiation, Environmental Protection Agency..................... 26
Prepared statement........................................... 68
Responses to additional questions from:
Senator Boxer............................................ 76
Senator Lieberman........................................ 73
Pisano, Mark, Executive Director, Southern California Association
of Governments................................................. 51
Prepared statement........................................... 93
Responses to additional questions from Senator Lieberman..... 95
Replogle, Michael, Federal Transportation Director, Environmental
Defense Fund................................................... 61
Chart, grandfathered projects in Atlanta region.............. 98
Fact sheet................................................... 100
Letter, opposition to S. 1053, several environmental
organizations.............................................. 99
Questions and answers on conformity.......................... 101
Prepared statement........................................... 96
Snow, Jacob L., General Manager, Clark County, Nevada, Regional
Transportation Commission...................................... 49
Prepared statement........................................... 89
Stephens, Jack, Jr., Executive Vice President, Customer
Development, Metro Atlanta Rapid Transit Authority............. 47
Prepared statement........................................... 87
Wykle, Kenneth R., Administrator, Federal Highway Administration,
Department of Transportation................................... 32
Prepared statement........................................... 80
ADDITIONAL MATERIAL
Articles:
Dead End for State's Road Builders, Atlanta Journal-
Constitution............................................... 116
Ruling May Halt Metro Roads, Atlanta Journal-Constitution.... 116
Atlanta Fights the Downside of Prosperity, USA Today......... 117
Letters:
AFL-CIO, Building and Construction Trades Department......... 21
American Association of State Highway and Transportation
Officials.................................................. 14
American Automobile Association.............................. 17
American Highway Users Alliance.............................. 19
American Road and Transportation Builders Association........ 19
Associated General Contractors of America.................... 18
Defenders of Wildlife........................................ 99
Earthjustice Legal Defense Fund.............................. 99
Environmental Defense Fund................................... 99
Environmental Working Group.................................. 99
Friends of the Earth......................................... 99
International Union of Operating Engineers................... 22
Izaak Walton League.......................................... 99
League of Conservation Voters................................ 99
National Association of Regional Councils.................... 15
National Environmental Trust................................. 99
Natural Resources Defense Council............................ 99
Physicians for Social Responsibility......................... 99
Sierra Club.................................................. 99
Zero Population Growth....................................... 99
Statements:
Coverdell, Hon. Paul, U.S. Senator from the State of Georgia. 29
Associated General Contractors of America.................... 22
Association of Metropolitan Planning Organizations........... 16
Joyner, Jim, Chairman, Board of Commissioners, Henry County,
Georgia.................................................... 29
Mills, Brian A., Commissioner, Cass County, Missouri......... 114
CONFORMITY UNDER THE CLEAN AIR ACT
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WEDNESDAY, JULY 14, 1999
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 9:30 a.m. in room
406, Senate Dirksen Building, Hon. John H. Chafee (chairman of
the committee) presiding.
Present: Senators Chafee, Inhofe, Bond, Voinovich, Baucus,
and Lautenberg.
OPENING STATEMENT OF HON. JOHN H. CHAFEE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Chafee. I want to welcome everyone to this
oversight hearing on transportation conformity. I want to thank
our witnesses.
We have made significant progress in reducing
transportation-related emissions. Transportation emissions,
however, are still a significant portion of the air quality
problem in many areas. Transportation conformity, the topic of
today's hearing, is an odd sounding phrase, I must confess that
it is. It is part of the enforcement mechanism in the Clean Air
Act designed to ensure that transportation projects fit within
an area's plan for clean air.
The problem with making conformity work is most acute in
those areas that most need it to work; namely, high growth
communities that simultaneously face the need for a more
extensive transportation system and the need to improve air
quality. Today's transportation decisions in these high growth
areas will affect air quality for decades to come.
The transportation conformity process was designed to
ensure that transportation projects and plans fit within an
area's mobile source budget; that is, the emissions that come
from automobiles and trucks. These emission budgets are
determined by State and local governments as part of a State's
implementation plan, the so-called SIP.
It is important to recognize that transportation conformity
does not pre-judge the important policy decisions of how an
area will reduce air pollution. An area may decide to focus its
air quality improvements on stationary sources, or on a mobile
source reduction strategy such as vehicle inspection and
maintenance programs that identify heavily polluting vehicles,
or on nontraditional transportation improvements such as
transit or HOV lanes.
It is important to recognize that transportation conformity
is not designed to stop highway projects. Its goal is to ensure
that transportation projects and plans are consistent with an
area's overall plan for achieving clean air. Failure to do so
would mean that other means of reducing emissions will need to
bear a greater share of the emissions reductions burden because
transportation emissions have exceeded the agreed upon plan.
In my view, transportation conformity is an important
budget enforcement mechanism that is available at the State and
local level. Even when a conformity lapse occurs, projects are
halted only temporarily until the issue causing the lapse is
resolved.
Now one of the key purposes of today's hearing is to
examine what impact a recent court decision and subsequent
Federal guidance will have on the conformity process and its
implications for transportation projects. I hope we will
address some of these questions, as follows:
1. At what point should a project be considered to
be able to proceed regardless of the status of an
area's air quality problems? The new conformity
guidance sets the funding agreement as a grandfathering
point whereas the old guidance allowed grandfathering
after completion of the National Environmental Policy
Act process, the NEPA process.
2. Many on the transportation side of this issue
have complained about the so-called timing mismatch
which stems from the fact that air quality plans only
look a few years into the future, while transportation
plans are for 20 years.
3. What other areas of the conformity process can
be improved.
So we look forward to the witnesses today.
Does anybody want to make a statement? Now is the chance.
Senator Voinovich?
OPENING STATEMENT OF HON. GEORGE V. VOINOVICH,
U.S. SENATOR FROM THE STATE OF OHIO
Senator Voinovich. Mr. Chairman, first of all I would like
to thank you for conducting this hearing today on
transportation conformity under the Clean Air Act.
It seems to me following the most recent court decision on
the issue that we are left with a system of uncertainty for
transportation planning. In the Subcommittee on Transportation
and Infrastructure, I have held a series of hearings on
streamlining of project delivery. I am concerned that this
recent court decision may cause delay or impact projects
already in the pipeline.
What has developed is an uncertain, unpredictable
environment for highway projects in this country which is not
conducive to good public policy. For this reason, we may need
to look at re-implementing the grandfathering provision which
existed prior to the recent court decision and then make it
clear as to what the rules will be in the future in regard to
the issue of conformity. I think that Senator Bond's bill is a
reasonable and balanced approach to allowing transportation
projects to move forward.
Now some may be concerned that we are trying to get around
air standards. This is not the case. What S. 1053 does is
simply codify the rules that EPA previously implemented which
offered increased flexibility with no negative impact on health
or environmental benefits. Under this bill, the States would
still be required to meet the current maximum standards. I
think that is important. In other words, my understanding is
that we would allow regions to go forward to right-of-way and
to project design, but they could not go forward to
construction without being in conformity with the State
Implementation Plan.
While I was Governor of Ohio, we took great strides to meet
air quality standards. When I first entered office, most of the
urban areas had not attained the 1-hour ozone standard. Today
in the State all of our areas have achieved the current ambient
air quality standards. That took a lot of sacrifice on our
part. I think that it is important for people who are
representing various States, Mr. Chairman, to understand that
many regions in this country compete with each other. For
example, the people in the Research Triangle are always trying
to move businesses out of Ohio to the Research Triangle. If
they can go ahead and put in their highway projects and
infrastructure projects and not be in conformity with air
standards, then it puts us in the State of Ohio in a
noncompetitive position. I think that everyone should be
required to meet those standards.
Second of all, when communities don't meet the conformity
standards and they pollute the air, and we have a major problem
like we have in the northeast corridor, and people are unhappy
about it and they are looking around for somebody to blame,
they turn to the west and to Ohio and other places. And so my
feeling is that if the rules are in place, they ought to impact
upon everybody in this country and there ought not to be
anybody that should be exempted from it. So I really think it
is important that we have some rules that we understand, that
we comply with.
And one last thing I would like to mention, Mr. Chairman,
and that is that a lot of the communities in this country are
going to have a dickens of a time meeting the conformity
standards under the current ambient air standards. Two years
ago when we got involved in the new ambient air standards, no
one seemed to be concerned about what it was; it was something
that was in a vacuum, and they did not really get it. Well,
they ought to get it. This is a chickens come home to roost
hearing. If we move to the new standards that the court has
struck down temporarily, we don't know where they are going to
go, I can tell you one thing, it is going to be very difficult
in this country to move forward with infrastructure projects
that are important to the transportation well-being of the
United States of America.
So we have got some real tough problems ahead of us. I am
hopeful that we can deal with this current problem, but we
ought also to be looking about what does the future look like
in terms of where are we going as a Nation.
Senator Chafee. Thank you.
Senator Baucus?
OPENING STATEMENT OF HON. MAX BAUCUS,
U.S. SENATOR FROM THE STATE OF MONTANA
Senator Baucus. Thank you, Mr. Chairman. First of all, I
compliment you on holding this hearing this morning involving
the issues surrounding conformity.
Air quality and transportation planning must go hand-in-
hand. I think there is no doubt about that. All of us who are
involved in these issues know that. The Clean Air Act
Amendments of 1990 reemphasize that and strengthen that.
Basically, by that I mean, the connection between the two.
But we have to make sure that they work together in a
common-sense and reliable way. We do not want the increased
funding we provided in TEA-21 to go to waste. And we certainly
do not want to worsen air quality or public health.
The recent court decision and the Administration's new
regulations on conformity, however, seem to be causing some
uncertainty, and I hope we can clear that up today. If not
today, at least chart a course that makes the conformity
process work for everybody all around the country. And I am
committed to making sure that it can, and that it does.
Mr. Chairman, I am also reminded of a meeting I held in
Montana this last week with the State Department of
Transportation, along with the official wildlife service,
contractors, and others just as sort of taking stock of how
TEA-21 is working in Montana. One of the issues that came up at
the meeting was the potential delays caused by a listing of new
species under the Endangered Species Act. The upshot of the
meeting, however, was one that was very solid; it was a tone of
cooperation, of working these matters out, making sure that the
Fish and Wildlife Service had sufficient resources.
We set up teams with the Department of Transportation in
Montana to get ahead of the curve so that in that environmental
matter, a very important matter--we do want to preserve and
protect species, but, just like here, we want to make sure the
air is clean--we do not deteriorate air quality. In that case,
a problem that could have been confrontational, an issue where
people could have ``demagogued'' it on both sides, didn't
happen. People sat around the table and said, hey, we have got
to do both here.
That is what I hope we can accomplish here. We have to do
both. We have to find a way to get these projects out in a way
that conforms with the National Ambient Air Quality Standards
and also the basic provisions of the Clean Air Act. We will get
it done, just so long as people do not demagogue and look for
newspaper headlines. I am not suggesting anybody here is.
Nobody here is. But I am just suggesting that if we work
together we can get this done.
I compliment you, Mr. Chairman, on bringing everybody
together.
Senator Chafee. Thank you.
Senator Inhofe?
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Mr. Chairman. Like the rest of
them, I appreciate your having this hearing. A lot of what I
was going to say in an opening statement has been said by the
Senator from Ohio, so I will just submit my statement.
I do, however, want to express my concern for the way that
the Administration has been treating and responding to these
court decisions. In March, when they had a decision where the
court struck down the grandfathering regulations to the Clean
Air Act, the EDF versus EPA, this is a split decision, I
requested that the Administration appeal this decision. They
did not do it. Then in May when the decision came down in a
split decision on the NAAQS, before the ink was dry the
Administrator appealed the decision. So this is of great
concern to me.
I also want to say that I support the Bond bill and I am a
co-sponsor of it. But to put this in an historic perspective as
to some of my attitudes toward this type of thing, Mr.
Chairman, I will share with you that back in 1966, when my very
close friend in Oklahoma and my predecessor here in the Senate,
David Boren and I were elected to the State legislature, 1966,
a month later, in January 1967, he and I came to Washington to
testify before this committee in objecting to Lady Bird's
Highway Beautification Act of 1965. We based that on the idea
that you cannot withhold moneys in order to coerce the States
to do different things. So I think that kind of shows that we
have come a long way since that time and I am not sure we have
come the right direction.
I would ask unanimous consent that my entire statement be
made a part of the record, Mr. Chairman.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. James M. Inhofe, U.S. Senator from the State of
Oklahoma
I would like to thank the Chairman for calling today's hearing.
This is a very important issue, millions of dollars of highway funds
are at stake and thousands of jobs across the country. Let me summarize
why I think we are here today.
On March 2, 1999, in a split decision, the Court struck down the
grandfathering regulations under the Clean Air Act, in EDF v. EPA. I
requested that the Administration appeal the decision. They decided not
to appeal, even though it was a split decision. In May, the court
struck down the NAAQS decision, also by a split decision, and Carol
Browner announced, before the ink was dry, that she was recommending an
appeal. The biggest difference, in my opinion, was the plaintiff. In
the NAAQS case the plantiffs were the States and industry, for
conformity the plaintiff was an environmental group.
The Administration has now come out with new conformity guidance
which creates uncertainty for the States, will jeopardize highway
projects across the country, increase air pollution, and according to
the Unions and Highway Builders will lead to thousands of people losing
their jobs.
The court recommended that Congress address this issue and I am
prepared to move forward with legislation. I expect to hear today from
the Administration whether they will support legislation.
My colleague Senator Bond has introduced legislation which
basically codifies the regulations which the court struck down. This
was the Administration's position prior to the March 2 court ruling.
Does the Administration support this Bill?
I am announcing today that I will cosponsor the Bond Bill. I do
think that both my Air Subcommittee and Senator Voinovich's
Transportation Subcommittee should take a close look at the Bill to see
if any changes should be made in the conformity process. I think this
is something that we can do fairly quickly and I call on my colleagues
and the Administration to join us in moving the Bill.
Senator Chafee. Who was chairman of the committee at that
time?
Senator Inhofe. I think it was John Chafee.
[Laughter.]
Senator Chafee. He has been around a long time, but not
that long. I think it was probably Jennings Randolph.
Senator Inhofe. I think it was.
Senator Chafee. Senator Bond?
OPENING STATEMENT OF HON. CHRISTOPHER S. BOND,
U.S. SENATOR FROM THE STATE OF MISSOURI
Senator Bond. Mr. Chairman, I thank you very much for
having this hearing. I certainly appreciate the thoughtful
comments of all my colleagues on this very important, complex
question.
My staff and I have put together a packet that is being
handed out and will be handed out to all the members on Senate
Bill 1053, including support letters from labor unions,
metropolitan planning organizations, the American Association
of State Highway and Transportation officials, and others,
along with charts explaining the conformity process prior to
the March 2 court decision, and some additional information.
On May 14, I introduced S. 1053, a copy of which you now
have. I introduced this bill because the court's decision puts
local governments, metropolitan planning organizations, State
governments in an unacceptable position. It is unacceptable
because it delays vitally important highway projects that are
needed in areas across the country that were approved prior to
that time by the Federal Government under the NEPA process and
all of the other required processes before they can go forward.
These highway projects are designed to save lives, reduce
congestion, and thereby reduce air pollution. These projects
have gone through the process which required an air quality
analysis. This bill is a very simple one. The only thing it
does is to give EPA and DOT the flexibility back that they lost
as a result of that March 2 court decision.
In 1996, in formulating the regulation that was struck
down, EPA received more than 50 comments from interest groups,
including MPOs, State and local air quality officials,
transportation officials, environmentalists including the EDF.
Mr. Chairman, I have read the testimony provided by the
representative of the Environmental Defense Fund. His first two
sentences are: ``A vital provision of the Clean Air Act is
today under attack. Senate Bill 1053 would reopen a loophole to
let those who profit from building roads at taxpayer expense
avoid accountability for the effects of their projects on
public health and air quality.'' Those comments I believe are
unfounded and outrageous. EPA, which promulgated the rules we
seek to reinstate, had said about the rule when it issued it,
``While these changes clarify the rule and in some cases offer
increased flexibility, they will not result in any negative
change in health and environmental benefits.''
Furthermore, the statement does not understand the
situation that is faced in many States across the country. We
have heard of some already today. In my home State of Missouri,
the Kansas City area is impacted. Missouri's highway fatality
rate is above the national average. From 1992 to 1996, poor
highway conditions contributed to the deaths of more than 5,000
on Missouri highways. According to data from the Federal
Highway Administration, more than 50 percent of Missouri roads
are ranked ``poor'' or ``mediocre.'' There is a bridge in
Kansas City that is in dangerous condition and its replacement
has been held up. Indeed, other needed improvements in the
Kansas City area are delayed as a result of the EDF and the
court decision.
The EDF's written testimony disappoints me but does not
surprise me. Unfortunately, we have to work through the
difficult situation and deal with the facts before us. The
facts are that this bill will simply allow regulations that
went through formal notice and public comment, negotiated,
finalized, and implemented by the Environmental Protection
Agency under the 1990 Clean Air Act Amendments to go forward.
The same regulations that EPA defended in court until, as my
colleague from Oklahoma testified, they decided not to appeal
this decision although they had won a previous decision.
Nothing more. The bill does not propose to change EPA's
practice which has been in place. This is not an attack on the
Clean Air Act.
Now included in your package are copies of the larger
charts that I have here. These charts come from DOT material
and list the countless requirements and steps which the
regulations overturned by the court required. Those charts
reflect what my bill does. No new charts need to be made. The
executive director of the Southern California Association of
Governments will be talking about these with some good advice.
The road builders also have suggestions for statutory changes
in conformity. We need to look at the entire conformity
process. I want to work with my colleagues to do that.
Just in closing, let me point out that the 15 building
trades unions and the AFL-CIO have endorsed S. 1053 because
``Not only are thousands of good paying construction jobs at
stake, but the safety of the traveling public and future
economic growth may be adversely effected if this decision is
allowed to stand.'' And we have quotes from other organizations
supporting this measure and this effort.
I look forward to working with you, Mr. Chairman, the
ranking member, and my colleagues to find a solution to the
problem that is bringing vitally needed highway construction
projects to a halt across the country. Thank you.
[The prepared statement, letters, and material submitted
for the record by Senator Bond follow:]
Statement of Hon. Christopher S. Bond, U.S. Senator from the State of
Missouri
Mr. Chairman--Thank you for having this hearing. My staff and I put
together the packet that is now being handed out to the committee
members. The information includes a copy of Senate Bill 1053, support
letters from the labor unions, the Metropolitan Planning Organizations,
and the American Association of State Highway and Transportation
Officials, etc., charts explaining the conformity process prior to the
March 2 court decision, and some additional information for each of
you.
On May 14, I introduced S. 1053, a copy of which you now have. I
introduced this bill because the court's decision is unacceptable. It
is unacceptable because it delays vitally important highway projects
that are needed in areas across the country. These projects will save
lives, reduce congestion, and these projects have already gone through
the NEPA process which requires an air quality analysis.
My bill is simple. The ONLY thing it does is give EPA and DOT the
flexibility back that they lost as a result of a March 2 court
decision.
In 1996, EPA received more than 50 comments from interest groups--
including MPOs, state and local air quality and transportation
officials, and environmentalists, including the Environmental Defense
Fund on the regulations affected by the court decision.
Mr. Chairman, I have read the testimony provided by Mr. Replogle of
the Environmental Defense Fund. His first two sentences are, ``A vital
provision of the Clean Air Act is today under attack. Senate Bill 1053
would reopen a loophole to let those who profit from building roads at
taxpayer expense avoid accountability for the effects of their projects
on public health and air quality.''
These comments are unfounded and outrageous. EPA--which promulgated
the rule we seek to reinstate--said about the rule: ``While these
changes clarify the rule and ins some cases offer increased
flexibility, they will not result in any negative change in health and
environmental benefits. ``
Furthermore, he doesn't understand the everyday situation in
Missouri, specifically Kansas City. Missouri's highway fatality rate is
above the national average. From 1992 to 1996, poor highway conditions
contributed to the deaths of more than 5,000 people in Missouri.
According to data from the Federal Highway Administration, more than 50
percent of Missouri's roads are ranked poor or mediocre. Needed
transportation improvements in the Kansas City area are delayed as a
result of the EDF and the court decision.
Mr. Replogle's written testimony disappoints me, but does not
surprise me. Unfortunately, this has become standard practice for too
many of the environmental groups. The facts are that my bill will
simply allow the regulations that went through formal notice and public
comment, negotiated, finalized, and implemented by the Environmental
Protection Agency as a result of the 1990 Clean Air Act amendments to
go forward. The same regulations that EPA defended in court! NOTHING
MORE. My bill doesn't propose to change EPA's practice which has been
in place for many years and was found to work! This is NOT an attack on
the Clean Air Act.
Included in your packets are copies of the large charts that I have
here. These charts come from DOT material and list the countless
requirements and steps which the regulations overturned by the courts
required. These charts reflect what my bill does. No new charts will
need to be made.
The testimony of Mark Pisano, Executive Director of the Southern
California Association of Governments says, ``. . . that since the
process of conformity was reinforced by the 1990 Clean Air Act, we have
found it to be a major tool in our efforts to plan transportation
improvements while at the same time meeting the requirements of the
Clean Air Act. It has provided us with a structured and flexible
process that permits innovative policy making in the preparation of
both our transportation and air quality plans.'' This is from a group
that actually has to go through the conformity process--and work
through with all sorts of groups on the local level.
Mr. Pisano's testimony also lists, along with the testimony of the
Road Builders, some changes that they believe should be made to the
underlying statutory provision in the Clean Air Act on conformity. I
want to review these in further detail, but several of the suggestions
seem to make a lot of sense.
Let me be clear, S. 1053 is not the final answer on conformity. We
need to work on rewriting the underlying Clean Air Act conformity
provisions. I want to work with my colleagues and do just that.
However, we have a problem as a result of the March 2 court
decision and the guidance that came from it. We have projects that are
delayed and maybe halted altogether. The 15 Building Trade Unions have
endorsed S. 1053 because ``Not only are thousands of good-paying
construction jobs at stake, but the safety of the traveling public and
future economic growth may be adversely affected if this decision is
allowed to stand.'' State Transportation officials have endorsed 1053
because they believe the guidance ``would create a safety hazard and an
air quality `hot spot'. . .'' The National Association of Regional
Councils and Association of Metropolitan Planning Organizations support
S. 1053 because ``. . . no regionally significant federally funded or
non-federally funded project can proceed regardless of how far along in
the project development process it is.''
Mr. Chairman, we have a problem. I hope that this hearing will lead
to the consensus that we must provide the relief that areas across the
country need by passing S. 1053. S. 1053 is not an attack on the
environment or the Clean Air Act. It is a reasonable and responsible
proposal to address the situation. My bill is an attempt to give EPA
and DOT the legal backing to allow us to finish what we start when it
comes to making our highways safer. In addition, I want to work with
those here today and my colleagues in possibly reworking the underlying
conformity provision of the Clean Air Act.
______
What has EPA said about the conformity process prior to the court
decision?
federal register: august 15, 1997
1. ``Completion of the NEPA process is the step EPA has selected
historically for grandfathering transportation projects for several
reasons. Making a determination under NEPA is clearly an action to
support or approve an activity, and the Clean Air Act does not allow a
Federal agency to take such an action without a conformity
determination. In addition, an air quality analysis is already required
by NEPA. To require this analysis again at a later date may create
redundancies in the transportation process and cause state and local
resources to be used less efficiently. ``
2. ``The conformity rule changes promulgated today result from the
experience that EPA, the Department of Transportation (DOT), and state
and local air and transportation officials have had with implementation
of the rule since it was first published in November 1993. While these
changes clarify the rule and in some cases offer increased flexibility,
they will not result in any negative change in health and environmental
benefits.
respondents' brief: june 10, 1998
3. ``EPIC's rule reflects its rational judgment that Congress
intended a more reasoned approach to transportation planning during
periods in which there is no applicable SIP, that Congress intended
that there be an attempt to balance the general pollution-reduction
requirements of the Act with the needs of state and local planning
organizations for certainty and finality in their transportation
planning processes.
4. ``EPA explained that it has always believed that there should
only be one point in the transportation planning process at which a
project-level conformity determination is necessary. This maintains
stability and efficiency in the transportation planning process.
______
Letters Sent to Senator Bond in Support of S. 1053
American Association of State Highway and Transportation
Officials,
Washington, DC, June 22, 1999.
Hon. John H. Chafee, Chairman,
Committee on Environment and Public Works,
Dirksen Senate Office Building,
Washington, DC 20510-6175.
Dear Mr. Chairman: We are writing to express AASHTO's support for
S. 1053 as introduced by Senator Christopher Bond and to request that
your Committee take timely action on this important legislation. This
legislation would simply amend the Clean Air Act to incorporate certain
provisions of the EPA air quality conformity regulations that were in
effect on March I, 1999. These are provisions that were struck down or
remanded in the March 2 decision of the U.S. Court of Appeals for the
District of Columbia in the case of the Environmental Defense Fund v.
EPA. These provisions are part of the transportation conformity
regulations that EPA adopted following discussions with stakeholders,
and subsequently defended during the EDF lawsuit.
We believe that Senator Bond's bill provides an effective approach
to restore the provisions involved in the March 2 decision. It would
allow ``grandfathered'' projects that have been in development for many
years and have met all regulatory requirements to proceed to
construction and receive Federal funding.
AASHTO believes that this legislation is necessary because the
administrative approach to dealing with the March 2 Court decision as
proposed by U.S. DOT and EPA in their respective May 7 and May 14
guidance does not provide a workable remedy.
AASHTO is available to testify regarding S. 1053 should you need us
to do so. Thank you for your consideration of our request.
Sincerely,
Dan Flowers, President.
______
National Association of Regional Councils
Washington, DC 20006, June 25, 1999.
Hon. Christopher Bond,
United States Senate,
Russell Senate Office Building,
Washington, DC 20510-2503.
Dear Senator Bond: On behalf of the Board of Directors and Members
of the National Association of Regional Councils (NARC) and the
Association of Metropolitan Planning Organizations (AMPO). we are
writing to express our support of S. 1053, which amends the Section
176(c) of the Clean Air Act to incorporate certain provisions of the
transportation conformity regulations as hi effect on March 1, 1999. We
applaud your leadership in addressing this very challenging and complex
issue.
The March 2 decision of the United States Court of Appeals for the
District of Columbia. which overturns key provisions of the U.S.
Environmental Protection Agency's third set of transportation
conformity amendments, will impact all non-attainment areas. We are
concerned with the consequences of this decision for several reasons:
The elimination of the ``grandfathering'' provision means
that in any nonattainment area where transportation conformity has
lapsed, no regionally significant federally funded or non-federally
funded project can proceed regardless of how far along in the project
development process it is. In other words, projects can proceed only if
actual construction has begun.
Some areas, which had previously demonstrated conformity
using submitted emissions budgets, will be forced to again demonstrate
conformity of their transportation plans using the Build/No Build test
In developing the third set of conformity regulation amendments, there
was general consensus that the Build/No Build test was flawed and
should be replaced with adherence to mobile source emissions budgets.
Some of the flexibility granted through the three sets of
conformity regulation amendments will be lost.
If enacted, S. 1053 will codify into law the transportation
conformity regulations established by the U.S. EPA prior to the March 2
Circuit Court decision and will restore stability and flexibility to a
complex and rigid set of regulations. We believe that this is essential
to ensuring consistency and continuity to the transportation plan and
program development process.
We also want to call to your attention to another systemic issue
related to the transportation conformity regulations. More
specifically, the air quality ``mismatch'' issue. The current
conformity rule requires a demonstration of conformity for the entire
20 years of the long range transportation plan. However, this extends
at least 10 years beyond the horizon year for the attainment
demonstration and/or maintenance plan included in the State
Implementation Plan (SIP). Thus, the SIP's attainment or maintenance
year budgets act as a cap for future mobile source emissions, denying
policy officials the ability to negotiate tradeoffs among stationary
area and mobile source emissions.
We have attached a copy of our position paper titled
``Transportation Air Quality Conformity--Timeframe Mismatch'' and a
proposal for resolving this problem, which includes suggested
legislative language to amend the MPO planning provisions in both the
highway and transit law. While we understand the difficulties of re-
opening this issue, we respectfully urge you to continue your
leadership on the issue of transportation conformity and to begin the
examination of the mismatch of time horizons issue.
Once again, we want to express our support of S. 1053 and would
lilac to thank clink for velour efforts to restore continuity to the
Federal air quality program.
Sincerely,
John Selph, President,
National Association of Regional Councils.
Brian Mills, Chairman,
Association of Metropolitan Planning Organizations.
______
Association of Metropolitan Planning Organizations
transportation air quality conformity timeframe mismatch
Issue: Inconsistent timeframe requirements for SIP documents and
transportation plans and programs are creating situations where
conformity may be difficult to achieve. This is because control
measures, which are beyond the control of transportation officials--but
which are critical for reducing mobile source emissions--are not in
place for years beyond the SIP timeframe. AMPO supports a more
integrated process in which transportation conformity is tied directly
to state implementation plan dates.
Discussion: Metropolitan Planning Organizations (MPOs), which are
designated to conduct transportation planning and programming in the
nation's metropolitan areas, are responsible for demonstrating that
transportation plans and programs conform to air quality goals and
strategies. The 1990 enactment of amendments to the Clean Air Act
explicitly defines ``transportation conformity,'' and the U.S.
Environmental Protection Agency (EPA) subsequently issued extensive,
detailed regulations outlining the conformity process. Despite 8 years
of experience and three sets of modifications to the conformity
regulation, some technical aspects of the conformity analysis process
Still remain problematic. One of the most difficult of the technical
issues relates to Incompatible time horizons for the State
Implementation Plan (SIP) and the Long Range Transportation Plan.
Under the existing regulations, there is a mismatch between SIP
timeframes (or deadlines) for attainment or maintenance, and the
horizon for Long Range Transportation Plans. The Long Range
Transportation Plan must focus on a 20-year future horizon, while the
SIP, including its strategies and emissions budgets do not extend that
far into the future. Under the Clean Air Act, the SIP must have a time
horizon that corresponds to the non-attainment area's attainment date,
which is always less than 20 year. Moreover, once attainment is
reached, the Clean Air Act requires a maintenance SIP, which must have
a 10-year horizon. The result of this mismatch is that for the purpose
of conforming the Long Range Transportation Plans, the Transportation
emissions budget for the years beyond the SIP horizons is a presumed
projection rather than the result of a negotiated agreement that
considers tradeoffs between mobile and non-mobile source sectors. This
disjointed process prevents integrated planning to achieve both
transportation and air quality goals. It also results in the
transportation agencies essentially becoming the long term air quality
planning organization, but without the authority to implement the types
of programs (e.g., I/M, RFG) needed to substantially reduce mobile
source emissions.
Recommendation: In determining conformity of the Long Range
Transportation Plan, the plan should demonstrate consistency with the
operative SIP emissions budget out to the time horizon for the SIP,
unless or until the adoption of a negotiated strategy that considers
mobile and non-mobile tradeoffs for the out-years that extend beyond
the timeframe of any applicable attainment or maintenance plan. The
process is necessary to achieve an integrated transportation and air
quality planning process as required by the Clean Air Act.
conformity
Discussion
Metropolitan Planning Organizations, which are designated to
conduct transportation planning and programming in the Nation's
metropolitan areas, are responsible for demonstrating that
transportation plans and programs conform to air quality goals and
strategies. The 1990 enactment of amendments to the Clean Air Act
explicitly defines ``transportation conformity,'' and the U.S.
Environmental Protection Agency (EPA) subsequently issued extensive,
detailed regulations outlining the conformity process. Despite 8 years
of experience and three sets of modifications to the conformity
regulation, some technical aspects of the conformity analysis process
still remain problematic. One of the most difficult of the technical
issues relates to incompatible time horizons for the State
Implementation Plan (SIP) and the Long Range Transportation Plan.
Under the existing regulations, there is a mismatch between SIP
timeframes (or deadlines) for attainment or maintenance, and the
horizon for Long Range Transportation Plans. The Long Range
Transportation Plan must focus on a 20-year future horizon, while the
SIP, including its strategies and emission budgets do not extend that
far into the future. The result of this mismatch is that for the
purpose of conforming the Long Range Transportation Plans, the
transportation emissions budget for the years beyond the SIP horizons
is a presumed projection rather than the result of a negotiated
agreement that considers tradeoffs between mobile and non-mobile source
sectors.
Proposal
In determining conformity of the Long Range Transportation Plan,
the plan should demonstrate consistency with the operative SIP
emissions budget, unless or until the adoption of a negotiated strategy
which considers mobile and non-mobile tradeoffs for the out-years which
extend beyond the timeframe of any applicable attainment or maintenance
plan.
We believe statutory changes may be necessary to address these
problems.
Legislative Language
Amend Section 1 34(i) by adding a sentence at the end of subsection
(2)(A) as follows:
``For the purpose of determining conformity under Section 176 (c)
of the Clean Air Act, only the impact of that part of the long
range transportation plan that is coincidental with the term of the
applicable rate of progress, attainment or maintenance state
implementation plan for the non-attainment area shall be evaluated,
except that the entire twenty-year period of the transportation
plan shall be the term for evaluating plan conformity if such
applicable state implementation plan provides for emission
reductions during such twenty-year period from both mobile and non-
mobile sources, which together meet or sustain Federal air quality
standards for the non-attainment area during such twenty-year
period.''
______
American Automobile Association,
Washington, DC 20005-6001, July 8, 1999
Hon. Christopher Bond,
United States Senate,
Washington, DC 20510
Dear Senator Bond: AAA is pleased to support your legislation S.
1053, which addresses the March 2 Federal appeals court decision in
Environmental Defense Fund v. U.S. Environmental Protection Agency
(EPA). By codifying the so-called grandfather clause, S. 1053 will
prevent any unreasonable disruptions in highway safety funding, and AAA
appreciates your leadership on this important issue.
AAA is concerned that the court decision jeopardizes public health
and safety. The grandfather provision was developed by the EPA, in
conjunction with the Department of Transportation (DOT), to allow
highway projects to proceed if they have been approved as part of an
earlier demonstration of conformity with clean air standards. In
particular, this decision has an immediate and significant impact on
the Atlanta area, which had some 60 projects operating under the
grandfather provision, alone.
At the same time, the court decision yields similar safety
repercussions for important highway projects across the nation. It is
our understanding that there could be up to one dozen areas in the
country facing a lapse in conformity. Road conditions are a factor in
an estimated 30 percent of traffic fatalities. Highway improvements
such as wider lanes and shoulders will not only reduce congestion, but
will reduce traffic fatalities. Your legislation is a vital step toward
correcting this situation.
AAA is a not-for-profit federation with a membership of 42 million.
AAA strongly believes that local officials need the ability and
regulatory stability to make informed decisions in the best interests
of their region. Without the grandfather provision, local authorities
will have their hands tied in the face of growing congestion and safety
concerns.
As this issue receives further consideration in the Senate, AAA
looks forward to working with you to develop positive solutions to
highway traffic safety issues. Please do not hesitate to call if AAA
can be of assistance in this matter.
Sincerely,
James L. Kolstad.
______
Associated General Contractors of America--Basic Trades
Committee,
July 2, 1999
Hon. Christopher Bond,
United States Senate,
Russell Senate Office Building,
Washington, DC 20510.
Dear Senator Bond: The Associated General Contractors of America-
Basic Trades Committee is a joint labor management committee made up of
the nation's leading union-sector general contractors and the general
presidents of the seven basic trade unions. Our mission is to improve
labor-management communication and cooperation to advance the interests
of the construction industry as a whole.
The Committee urges you to support S. 1053 and H.R. 1876,
legislation that would reinstate EPA's grandfather clause. The
grandfather clause allowed projects in attainment of clean air
standards to go forward under new models.
On March 2, 1999, the Environmental Defense Fund (EDF) successfully
sued the Environmental Protection Agency (EPA) to eliminate EPA's
regulation. EPA chose not to appeal, and subsequent guidance has been
issued by Federal Highway Administration and EPA that details when and
how projects can go forward. This new guidance will disrupt areas that
have a ``conformity lapse,'' meaning a timely state implementation plan
has not been approved.
The Committee supports the goals of the Clean Air Act. Moreover,
the success of the Act is demonstrated by the fact that our nation's
air is getting cleaner. Tailpipe emissions have decreased 95 percent
since 1970. The automobile industry is entering Phase II of improving
the tailpipe technology for the vehicles on our roads. Technology has
largely eliminated the culprits of clean air. Congestion, however, is
increasingly becoming a prominent clean air concern. Building adequate
roads to relieve bottlenecks will do more to improve the air around
congested cities than sanctioning highway funds.
Passing S. 1053 and H.R. 1876 simply reinstates EPA's own
regulation that it did not vigorously defend. In many cases, the EPA
has approved these previously grandfathered road projects. The lawsuits
represent an extreme environmental view and second-guessing from
outside the process. They do not have an interest in relieving
congestion, improving motorist safety, and creating jobs.
Please co-sponsor S. 1053 and H.R. 1876.
Sincerely,
Frank Hanley, Co-Chairman, Basic Trades, General President,
Int'l Union of Operating Engineers.
Thomas T. Rollers, Co-Chairman,
Associated General Contractors of America.
______
Associated General Contractors of America,
Washington, DC. 20006, June 30, 1999.
Hon. Christopher ``Kit'' Bond,
Russell Senate Office Building,
Washington, DC 20510,
Dear Senator Bond: The Associated General Contractors of America
(AGC) supports S. 1053 and appreciates your strong leadership in this
critical matter. Your legislation will allow much needed highway safety
improvements to go forward.
AGC supports the goals of the Clean Air Act. Moreover, the success
of the Act is demonstrated by the fact that our nation's air is getting
cleaner. Tailpipe emissions have decreased 95 percent since 1970. The
automobile industry is entering Phase II of improving the tailpipe
technology for the vehicles on our roads. Technology has largely
eliminated the culprits of clean air. Increasingly, congestion is
becoming a prominent clean air concern. Building adequate roads to
relieve bottlenecks will do more to improve the air around congested
cities than any other action.
Your legislation simply reinstates EPA's own regulation. EPA, FHWA
as well as state and local governments have approved these road
projects in previous state implementation plans. The lawsuits that have
blocked these highway projects represent an extreme environmental view
and second-guessing national environmental groups. They do not have an
interest in relieving congestion, improving motorist safety, and
creating jobs.
Thank you for working to improve our nation's highway safety.
Sincerely,
Jeffrey D. Shoaf, Executive Director, Congressional
Relations.
______
American Highway Users Alliance,
Washington, DC 20036, June 30, 1999
Hon. Kit Bond,
United States Senate,
Washington, DC 20510.
Dear Senator Bond: Last month, you introduced S. 1053, a bill to
codify Environmental Protection Agency (EPA) rules that were struck
down or remanded in a recent court decision. Without swift
congressional action reinstating the EPA rules, hundreds of important
highway projects projects that will save lives, prevent injures and
reduce congestion--could be halted across America. The American Highway
Users Alliance, which represents over 40 million motorists, truckers
and businesses. strongly Supports your legislation and respectfully
urges the Congress to approve S. 1053 promptly.
In Environmental Defense Fund v. Environmental Protection Agency,
the U.S. Court of Appeals for the District of Columbia struck down EPA
rules that allowed states to proceed with approved highway projects
that had previously conformed to national air quality standards even
though circumstances, such as new Federal regulations, had later
changed that state's air quality rating. As a result of the court's
decision, previously approved highway projects in at least 10 regions
have been stopped.
Because most of He affected projects are aimed primarily at
improving safety or relieving congestion, further delays will mean more
traffic fatalities and injuries and worsened congestion. Ironically,
the air quality in those areas will suffer because cars emit more
pollutants idling in traffic than when moving.
More regions of the country will be adversely Impacted with each
passing week. Congressional action is needed now The Highway Users
greatly appreciates your leadership on this important issue.
Sincerely,
Wlliam D. Fay, President and CEO.
______
American Road and Transportation Builders Association,
Washington, DC 20001, June 1999.
Dear Senator: If a proposed highway improvement project has passed
every environmental test required by the Federal Government once--a
necessary yet very expensive process that takes many months, even
years, to complete--should it have to go through the same process over
and over again? That's the key question raised by a March 2 Federal
court decision in a suit brought by the Environmental Defense Fund
(EDF) against a common sense rule implemented several years ago by the
Clinton Administration's Environmental Protection Agency (EPA).
The transportation construction industry believes once should be
enough. The EDF, not surprisingly, doesn't. Their agenda on highway
projects can be summed up in one word: delay. The problem is that
delaying highway improvements hurts and kills people.
According to U.S. Department of Transportation research, poor road
conditions or obsolete road and bridge alignments are a factor in
12,000 highway-related deaths each year. That's four times the number
of Americans killed in accidental fires and a third more than die
annually of asthma and bronchitis combined. How many more die
needlessly because congested road conditions impede emergency vehicles?
Those are public health issues the EDF chooses to ignore.
Regrettably, two of three judges on the court panel agreed with EDF
that the 1990 Clean Air Act (CAA) transportation conformity provisions
are so rigid that under a number of circumstances, proposed road
projects can be put back into the expensive and complex environmental
approval process over and over again. The conformity law ties road
project approval to regional and state attainment of Federal air
quality goals. Conformity sets up a ``Catch-22'' situation that the EDF
and its no-growth allies use routinely to stop and delay needed road
improvements.
Their approach, of course, not only has public health consequences,
but also suggests a disturbing lack of concern for American citizens
and businesses who are being forced to waste millions of hours and
billions of dollars each year in unnecessary traffic congestion.
For these reasons, we urge you to support S. 1053, legislation
introduced by Senator Kit Bond (R-MO). S. 1053 simply restores the
EPA's common sense rule that was thrown out in the March 2,1999, EDF
vs. EPA decision.
In 1997, when EPA proposed the rule in question, it said: ``The
conformity rule changes promulgated today result from the experience
that the EPA, the Department of Transportation, and state and local air
and transportation officials have had with implementation of the rule
since it was first published in November 1993. While these changes
clarify the rule and in some cases offer increased flexibility. They
will not result in any negative change in health and environmental
benefits.''
S. 1053 reinstates the rules that localities, regions, states and
the Clinton Administration's environment and transportation teams
negotiated, finalized, and practiced with success. We urge to sponsor
this ``common sense legislation.
Sincerely,
T. Peter Ruane, President & CEO.
______
Statement of the Associated General Contractors of America
Background
The Associated General Contractors of America (AGC) supports S.
1053, legislation to reinstate Environmental Protection Agency's (EPA)
``grandfather clause.'' It is a targeted amendment to the Clean Air Act
to allow for the full implementation of the Transportation Equity Act
for the 21st Century (TEA-21). This change is necessary in light of
judicial action striking down the ``grandfather clause.'' The
``grandfather clause'' assured that each transportation project
received an air quality assessment once. Without EPA's ``grandfather
clause,'' there is uncertainty in transportation and construction
planning.
On March 2, 1999 the US District Court of Appeals for the DC
Circuit nullified the Environmental Protection Agency's ``grandfather
clause.'' (Environmental Defense Fund (EDF) v. EPA, USCADC No. 97-
1637). The ``grandfather clause'' had permitted highway projects that
were included in state transportation plans that met clean air
conformity standards to go forward. If the project was later included
in a nonconforming state transportation plan, then the project was
``grandfathered'' and allowed to proceed. EPA developed this regulation
to allow these projects to go forward in the spirit of ``flexibility.''
The Court held that this ``flexibility'' did not exist under the Clean
Air Act. The court called on Congress to amend the act saying, ``If
this legislative scheme is too onerous, it is up to Congress to provide
relief, not this court.'' On March 16, 1999, EPA announced they would
not appeal the case.
AGC calls on Congress today to amend the Clean Air Act as requested
by the courts and consistent with the EPA's statements in support of
the ``grandfather clause.''
Over 8,274 AGC members are potentially impacted by the March 2,
1999 US District Court ruling in EDF v. EPA. Twelve areas of the
country face a conformity lapse of which many of our members own and
operate businesses. These include 256 companies in Maine; 156 in
Connecticut; 685 companies in Pennsylvania; 641 in Georgia; 915 in
Kentucky; 936 in Louisiana; 580 in Utah; 654 in Colorado; 451 in
Nevada; 308 in Arizona; 1,658 in California; and 1,034 in Missouri.
How ``grandfather clause'' Impacts Construction Projects and Disrupts
the Implementation of TEA-21
The ``grandfather clause'' provided certainty and predictability to
building essential highway and bridge construction projects. Last year,
every member of this committee supported the goals of the
Transportation Equity Act for the 21st Century (TEA-21). TEA-21 made a
commitment to investing in America's transportation infrastructure. In
the construction industry it is imperative that we have the equipment,
the manpower and a certain and predictable schedule to build these
needed improvements. By eliminating the ``grandfather clause,'' the
goals of TEA-21 will not be fully realized as important construction
projects will be halted or continually delayed.
Clean Air Act Improving Air Quality
The Clean Air Act (CAA) has been successful in improving our
nation's air quality. Tailpipe emissions have decreased by 95 percent
since the enactment of the Clean Air Act in 1970. Both the CAA and TEA-
2 1 require that air quality be monitored. Air quality is a deciding
factor when road projects are considered. TEA-21 continues the planning
processes of the State Transportation Improvement Plan (STIP) and the
Transportation Improvement Program (TIP), requiring states to develop
their transportation construction plans over three to 20 year periods.
Every highway and transit project is part of a long-range statewide
plan.
The Guidance and Regulations Are Not the Answer
The guidance issued by the Federal Highway Administration (June 18,
1999) does not provide certainty to the states. Under the guidance,
project phases of segmented projects that had not been started before
the ``grandfather clause'' was vacated cannot proceed. Phased projects
that have already begun can create serious highway safety problems. For
example, a two lane highway being expanded to a four lane highway that
was let in three phases could create a situation where the middle
remains two lanes because that portion of the project cannot be
completed. This would cause traffic to move from four lanes to two-
lanes back to four lanes causing serious congestion and safety
problems. EPA's regulations will be proposed by the end of this year.
Even then, these regulations could be subject to another lawsuit.
Codifying the ``grandfather clause'' creates certainty for local
entities and stops this ongoing legal battle regarding the
``grandfather clause.''
Legislative History of the Clean Air Act Amendments of 1990
The Clean Air Act was last reauthorized in 1990. Congressional
Quarterly described the reauthorization in the following words, ``after
more than a decade of stalemate over the nation's clean air laws, the
senate on October 27 cleared sweeping legislation to impose stricter
Federal standards on urban smog, automobile exhaust, toxic air
pollution and acid rain. . . it capped nearly two full years of work. .
. previous efforts had been bottled up since at least 1981.'' Now
remember, the rewrite of this legislation had been overdue since 1982.
It was not until President Bush offered his own proposal in 1989 that
the process was able to finish. In short, without Presidential
leadership the bill would not have passed. A major rewrite of the Clean
Air Act does not seem possible in the current political climate.
The Benefits From Passing S. 1053
The benefits from passing S. 1053 are a predictable implementation
schedule for construction projects. It will eliminate the threat of
litigation either against the EPA or the states on highway projects
that have already received Federal approval. There will be no wholesale
assault on the environment from the passage of S. 1053.
The simple truth is that Maine; Connecticut; Pennsylvania; Georgia;
Kentucky; Louisiana; Utah; Colorado; Nevada; Arizona; California; and
Missouri will be able to breathe a little easier. They will not have to
worry about projects being halted at partial completion or leaving a
necessary highway project on the drawing board because some other
element of a state's plan pushes the plan out of conformity.
Even EPA supports the ``grandfather clause'' as codified by S.
1053.
``EPA has always believed that there should only be one point in
the transportation planning process at which a project-level
conformity determination is necessary. This maintains stability and
efficiency in the transportation planning process.
Completion of the NEPA process is the step EPA has selected
historically for grandfathering transportation projects for several
reasons. Making a determination under NEPA is clearly an action to
support or approve an activity, and the Clean Air Act does not
allow a Federal agency to take such an action without a conformity
determination. In addition, an air quality analysis is already
required by NEPA. To require this analysis again at a later date
may create redundancies in the transportation process and cause
state and local resources to be used less efficiently.''
EPA Comments In the Federal Register August 15, 1997
Judge Williams agreed with this in his dissent in EDF v. EPA
stating, ``The statutory test permits EPA's view, and the agency's
interpretation is reasonable in light of its goal of protecting
localities from disruption caused by conformity lapses, which appear
frequently to be beyond local control.''
The only downside risk of moving S. 1053 is that you will return
the country to the days preceding March 2, 1999, prior to the court
ruling in EDF v. EPA.
Please take this opportunity to pass this legislation. Return some
reliability to the transportation planning and construction process
before trying to tackle the mammoth chore of updating the Clean Air
Act.
Attached is a summary of lawsuits challenging EPA actions and other
lawsuits attempting to halt highway safety projects in several states.
______
Environmental Lawsuits Summary
updated july 12,1999
Environmental Defense Fund v. EPA
Decided: March 2, 1999
United States Court of Appeals for the District of Columbia
Holding: Nullifies the Environmental Protection Agency's
``grandfather clause.'' The ``grandfather clause'' had allowed highway
projects that were included in state transportation plans that did not
meet clean air conformity standards to go forward. If the project met
previous clean air models, then the project was ``grandfathered'' into
the current clean air models. EPA claimed that would allow these
projects to go forward in the spirit of flexibility. The Court held
that this flexibility did not exist according to the Clean Air Act.
``If this legislative scheme is too onerous, it is up to Congress to
provide relief, not this court.'' On March 16, 1999, EPA announced they
would not appeal the case.
Sierra Club v. Browner
Filed: November 1998
United States Court of Appeals for the District of Columbia
Pleading: The Sierra Club claims EPA Administrator Carol Browner
did not have discretionary authority to allow Missouri to go forward
with road building since St. Louis was not in attainment with the ozone
standard. The Sierra Club is asking that the court instruct the Federal
Government to withhold Missouri's entire Federal highway apportionment
until the city reaches conformity (complies with the ozone standard.)
AGC of Missouri, AGC of St. Louis, and Heavy Contractors of Kansas City
have filed as interveners to the case.
Sierra Club v. EPA
Filed: March 1999
United States Court of Appeals for the 9th District
Pleading: On March 12, 1999 the EPA published a final rule in the
Federal Register stating Ada County reached particulate matter
attainment. On March 15, 1999 the Sierra Club asked the court to vacate
Ada County, Idaho's attainment status for particulate matter. The
Sierra Club is asking the court to rule that EPA's attainment
designation was ``not in accordance with law or arbitrary and
capricious.'' Prior to this attainment finding, Ada County's road
program was on hold. Current estimates are that $21 million of roadwork
is on hold with $10 million affected annually for the next few years.
AGC Idaho Branch has been given permission to submit an intervener
brief with the Ada Planning Association (the city's metropolitan
planning organization).
Sierra Club v. U.S. Army Corps of Engineers
Filed: March 1999
U.S. District Court in Jacksonville
Pleading: Permits for a 41.6-mile toll road are being challenged by
the Sierra Club. The Suncoast Highway stretches across west central
Florida. The Sierra Club believes the Corps of Engineers' environmental
impact statement required by the National Environmental Policy Act
(NEPA) does not adequately address Clean Water Act, Clean Air Act, and
Endangered Species Act requirements.
Georgians for Transportation Alternatives v. Slater
Decided: June 1999
U.S. District Court for the Northern District of Georgia
As expected, this case settled June 1999. The key issue in the case
dealt with the use of the ``grandfather clause'' in the Atlanta area.
The case was essentially decided when the EDF decision vacated the
``grandfather clause.'' After this decision, the outstanding issues
included environmental justice claims and complaints about the Atlanta
area transportation planning process. The settlement authorizes a study
to be conducted focusing on how transportation projects affect minority
communities.
American Trucking Association v. Environmental Protection Agency
Decided: May 1999
United States Court of Appeals for the District of Columbia
The court vacated the Environmental Protection Agency's (EPA)
rulemaking on particulate matter and ozone under the National Ambient
Air Quality Standards (NAAQS). In a strongly worded decision, the Court
stated that EPA promulgated the ozone regulations in an
``unconstitutional delegation of legislative power.'' Regarding
particulate matter (PM), the Court stated that the EPA's setting of
PM10 was ``arbitrary and capricious.'' In a later decision,
the Court allowed the PM2.5 standard to remain in effect,
but left the door open to another legal challenge. EPA has petitioned
for a rehearing and failing that will appeal to the Supreme Court.
Michigan v. EPA
Decided: June 1999
United States Court of Appeals for the District of Columbia
The Court issued a stay to the September state implementation plan
(SIP) call that mandated twenty-two states submit plans to reduce
nitrogen oxide (NOx) emissions to the EPA. EPA contends that NOx
emissions emanating from coal fired electricity plants and other
sources in the mid-west cause an ozone problem in the northeast. The
Court delayed the September deadline for these state plans
indefinitely. Michigan v. EPA asked the court to overturn the rule as
scientifically unsupportable.
Senator Chafee. Senator Lautenberg?
OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Thanks, Mr. Chairman. Again, I add my
compliments to you for holding a hearing on this topic.
I think we run a serious risk in trying to balance air
quality standards with transportation needs. I think there is a
risk. A major concern of mine is that the Senate has been
finding ways to relieve congestion by investing in
transportation projects. However, we do not know necessarily
what the outcome is going to be in terms of quality of air. I
think there is a challenge that has to be answered.
Too much time is spent, obviously, in traffic commuting to
work. In the past decade alone, traffic has increased by 30
percent in metropolitan areas; 10 years. The number of cars on
the road is expected to increase by 50 percent over the next
decade. It is an awesome prospect. In my home State of New
Jersey, commuters waste a full 40-hour workweek sitting in
traffic. Across the country, traffic gridlock cost nearly $50
billion a year in lost time and wasted fuel.
But there is something else at stake here, and that is our
air quality. The air we breath is about as fundamental an issue
as we ever face in Congress. In New Jersey we have a serious
problem with air pollution. Poor air quality affects the health
and safety of everyone, even those who do not drive. And it is
a financial issue as well. More pollution sends more people to
the emergency room, which means that all of us wind up paying
increased health costs.
What we need to remember here is that we have to challenge
new thoughts as to whether or not it makes sense to create a
transportation plan if it adds to the pollution in a State or
region already with a conformity lapse. We have got to work
together. And I commend Senator Bond for trying to work out the
problem that we have with stalled projects. On the other hand,
I think we have to make sure that there is compatibility
between expanded highways and clean air. Simply put, new roads
without a concern for improved air quality is a double
negative. It fouls the air and creates perhaps even more
congestion.
Some of the facts from the University of California study
tell us that for every 1 percent increase in lane miles, we
have generated a 0.9 percent increase in traffic within 5
years. So we can conclude that new roads do not always ease
congestion. We need to make sure that we are not abandoning air
quality standards before we start grandfathering transportation
projects. I would like us to work together at the local, State,
Federal levels to develop plans and projects that look at a
range of transportation alternatives, not simply the projects
that might impair our air quality.
I appreciate the fact that we have qualified witnesses here
with us today, and I look forward to hearing from all of them,
Mr. Chairman. Thank you.
Senator Chafee. Thank you very much.
We will now proceed with the witnesses. Mr. Robert
Perciasepe, Assistant Administrator for the Office of Air and
Radiation, Environmental Protection Agency.
Mr. Administrator, go to it.
STATEMENT OF ROBERT PERCIASEPE, ASSISTANT ADMINISTRATOR, OFFICE
OF AIR AND RADIATION, ENVIRONMENTAL PROTECTION AGENCY
Mr. Perciasepe. Thank you, Mr. Chairman and members of the
committee, for the invitation today. I am going to use these
charts very quickly to keep me on track here. And I apologize
to the folks behind, we will take them down as soon as we are
done. I think we have handed them out to all of you. And I
would ask, Mr. Chairman, that my full statement, since I am
just going to summarize here, be entered into the record.
I want to put a point on some of the issues that were
already brought up in the opening statements about the air
quality problem. We have 38 areas in the United States that
still do not meet the 1-hour ozone standard, representing
almost 100 million people. I think in many of these urban areas
the mobile source emissions are around 50 percent; the national
average is probably in the 30's, but in some of the urban areas
it is around 50, some even higher, like perhaps Atlanta or
Charlotte. So this is an important component of the air quality
planning process.
Another way to mention what Senator Lautenberg said in his
opening statement, in 1970, when the original Clean Air Act was
being considered, the American motorist drove about a trillion
miles a year. Today, 30 years later, the American motorist
drives 2 trillion miles a year, and that is due to more
distance per trip and also more vehicles. So, clearly, it is an
issue that has to be addressed.
The purpose of conformity, and the reason I think it was in
the Clean Air Act in 1977 and then enhanced, as you said, Mr.
Chairman, in 1990, is to consider the air quality impacts of
transportation improvements before they are built as opposed to
chasing our tail both in the transportation planning world and
in the air quality planning world. Common sense, good
government kinds of thoughts. Transportation and air quality
planning is coordinated. And this works both ways. It provides
the input to the transportation planning process that is
needed, and it also provides a way for the air quality planning
to take into account what happens in the transportation sector.
It works quite simply. And I understand all the issues that
we have talked about and that we will get into in the question
and answer. But in its simplest operation, the air quality plan
sets a target for the emissions from the transportation and
mobile sector, but they do it by coordinating the planning
processes. I have to say that is also further coordinated in
the air quality planning process by what controls would be
placed on other sources, like utilities, or industrial sources,
or other area sources in the metropolitan area. So there is a
balancing act that is made both in the transportation planning
and in the air quality planning to come up with the answer. And
then once the answer is derived through the local planning and
the State planning, the system is supposed to stay within that
emissions budget.
One of the things that I think we are talking about here
and is the focus I think of a lot of the questions and answers
that we will get into is, what happens if this does not work?
Where this works everybody is happy. What happens when it does
not work? And how many places has it not worked, and why
doesn't it work, and how can we fix it? Transportation projects
are not delayed if they are in these plans and the plans
conform to each other. No problem. It is when they do not work,
when these plans are not coordinated that we have the problem.
The question is what do we need to do to make that happen so
that we do not have this problem.
Just quickly, some of the things that have been going on
around the country related to conformity, and I think you will
have some testimony on some of this during the course of the
morning. In Atlanta, it has spurred quite a debate on growth
and traffic and air quality. New institutions have been
created, and the private sector is getting involved in solving
the problem. I could talk about Bell South trying to
consolidate its employees in a way that reduces air quality
impacts, the Georgia Regional Transit Authority that has been
created, and a lot of activity there.
Charlotte has prompted a new transit plan. I was just in
Charlotte a couple of weeks ago with the mayor and the business
community, and they are keenly aware and way ahead of the curve
now on how they deal with the emerging issue. They are growing
at twice the national rate in Charlotte and they are committed
to staying ahead of the problem, and they are doing a very good
job.
In Denver, it has stimulated a very large debate about what
should be in the air plan, what should be the transportation
growth, and Denver is in conformity. And Portland developed an
air plan that deals with this 20-year planning horizon problem,
which I think this is an important issue that we should discuss
during the question and answer.
The air quality plans, while they are targeted to get into
attainment in a certain period of time, that attainment must be
maintained. And so the question is how do you coordinate the
long-term maintenance of the air quality, which does require
looking at a long horizon, and the transportation plans which
are looking at a 20-year horizon. This is another thing that
makes sense and is perhaps an area where we can improve how
these things are coordinated.
The last thing I want to mention, because I think this is
equally important and obviously related, is what is our
response to this court decision. Again, I will just touch
quickly here in the opening statement. We think that what we
have come up with in interpreting the court's decision is very
workable. Projects that are started can continue, projects that
have funding commitments can continue. I want to point out, I
know Senator Bond brought this up in his opening statement,
safety projects are exempt from this. Congestion projects that
are already receiving funding commitments can continue during a
lapse period.
Again, we are only talking about the areas where there has
been a failure of the plans, not everywhere. Right now, we only
have seven areas. I think the Administrator will go into some
detail on which areas those are. But we think most of these
seven areas that are in a lapse will be able to fix it very
quickly.
We think that what we have done, now that it has gone
through court, is legally defensible. Maybe what we have done
before wasn't, now it is. So, can we make it work. We think it
achieves the goals that Congress set out in being
environmentally protective. It achieves the air quality goals,
it achieves the transportation planning goals, it pushes
resolution of these issues so these plans do conform, and it
manages the pipeline during a lapse in a way that you don't
exacerbate either your long-term transportation planning or air
quality planning.
I am going to stop there and let my colleagues continue,
and then I will be pleased to answer questions.
Senator Chafee. All right.
At this point, I would like to put a statement into the
record from Senator Coverdell and some attached testimony that
he has asked that I submit at this time.
[The prepared statement of Senator Coverdell and
accompanying material follow:]
Statement of Hon. Paul Coverdell, U.S. Senator from the State of
Georgia
nonconformity
Mr. Chairman, I appreciate your willingness to hold this hearing
and to address the issue of nonconformity with the Clean Air standards.
I look forward to working with the Chairman and the distinguished
members of this committee to find a solution to this dilemma. I hope
that with the help of today's hearing and the hard work of the
committee members, we can address this issue in an expedited fashion as
it could have serious implications not only for Georgia and the
Southeast, but for the entire country.
Thank you to Jack Stevens for being here this morning to testify on
behalf of Georgia and the Metropolitan Atlanta Rapid Transportation
Authority (known to us Georgians as MARTA). I appreciate his dedication
to this issue and hope that he may in some way assist the committee in
working toward a solution.
I believe that the commissioners of the 13 counties in Georgia
affected by the nonattainment status of the Clean Air standards have
unique concerns, and I request that the testimony of Jim Joyner,
Chairman of the Henry County Board of Commissioners, be added to the
record. The counties, which bear the brunt of this dilemma, are
struggling to deal with public safety problems created by the delay in
road projects.
Again, I thank the Chairman and the members of the Committee for
their dedication and hard work toward finding a solution to this
problem. I am confident that we will be able to find a balance between
future air quality and the needs of nonattainment counties to continue
to adjust to the rapidly growing and changing Southeast.
______
Statement of Jim L. Joyner, Chairman, Board of Commissioners, Henry
County, Georgia
Good morning Mr. Chairman and members of the Committee. My name is
Jim Joyner, and I am Chairman of the Board of Commissioners of Henry
County, Georgia, which is located south of Atlanta. Henry County is one
of many counties in the Atlanta area where road construction projects
essential for the safety and prosperity of the residents have been
stopped as a result of the air quality ``conformity'' issues the
Committee is discussing today. My testimony is presented on behalf of
Henry County and four other Atlanta area counties that are experiencing
similar problems: Cherokee, Clayton, Coweta and Fayette Counties. We
thank you for this opportunity to address the Committee on these issues
of critical importance to the future of our counties and their
citizens. We believe that many other counties throughout the Nation
currently are facing these issues as well.
My primary purpose here today is to request the Subcommittee's
assistance in obtaining approval to proceed with our road projects as
soon as possible, through adoption of appropriate legislation if
necessary. But first, let me describe some of our projects and the
vital role they will play in protecting and enhancing the public
health, safety and welfare of our communities.
the atlanta area road projects
Approximately 44 road construction projects in 18 Atlanta area
counties, with approved funding around $700 million, have been stopped
as a result of conformity issues and related litigation. Many of these
are so-called ``grandfathered'' projects, but I would like to correct a
misconception commonly applied to these projects. They are not totally
exempt from the air quality conformity analyses, but generally have
been included in prior analyses or will be included in future analyses.
The issue is not whether the long-term air quality impacts of these
projects will be considered, but simply when and how. The Commissioners
of Henry County and the other counties joining in this testimony have
and will continue to support an orderly and reasonable process for
ensuring that current road construction does not jeopardize future air
quality.
However, we desperately need a process that strikes a reasonable
balance between future air quality concerns and current public safety
hazards. Many of the Atlanta area projects that have?been stopped under
the current rules are critical to the safety and efficiency of the
Counties' surface transportation system. For example, one vital project
which has been affected in Henry County is the widening of Jonesboro
Road. This is a heavily used east/west arterial route for the area, and
is currently a two-lane road. Average daily traffic counts taken in
1998 ranged as high as 15,526. From June 1, 1996 to March 23, 1999 a
total of 478 accidents were recorded on Jonesboro in Henry County,
including a tragic accident which occurred on June 12, 1997, when a van
for the Henry County Mental Retardation Center collided with a truck,
resulting in the deaths of the truck driver and two disabled clients of
the Mental Retardation Center. This project would vastly improve safety
and reduce congestion by expanding this roadway into a four-lane road.
A second example is the widening of Highway 34 in Coweta County, a
series of projects which have been identified by the Coweta County
Planning Department, Georgia DOT, the Coweta County Public Safety
Departments (including E-911, the Fire Department, and the Sheriff's
Department), the ambulance provider for Coweta County, and the Georgia
State Patrol as essential projects. Correspondence discussing these
issues is attached to my testimony. Highway 34 is currently a two lane
road that conveys traffic between Newnan and the Shenandoah Industrial
Park at Interstate 85 to and from the Peachtree City area in Fayette
County. This roadway also serves as access to Interstate 85 for
residential areas that lie East of Interstate 85. The 1998 average
daily traffic county was 16,176 vehicles. There is a chronic problem
with accidents on this roadway. From late 1994 through March 1999 there
have been 615 traffic related incidents along this roadway, of which
495 were medical calls. In addition, absent the Highway widening
project, the response time to those living in the area from emergency
vehicles is greatly protracted because of traffic congestion and,
because the existing highway allows no emergency access on shoulders or
medians, police fire and ambulance services cannot access the densely
populated portions of the county during peak traffic flows.
Similarly, the high volume of traffic at the interchange at the
Interstate 75/Eagles Landing Parkway poses a threat to the citizens of
Henry County. This section of Interstate 75 is highly congested,
averaging over 120,000 vehicles per day. The interchange includes the
overpass bridge which connects much of Henry County to the Henry County
Medical Center, a County owned hospital and regional medical center.
Due to the heavy congestion, emergency vehicles, ambulances and fire
trucks are often caught in the traffic for as long as 20 minutes en
route to the Medical Center, a dangerous situation which cannot be
remedied unless the project to widen this interchange is allowed to
proceed.
As you can see, rapid completion of projects such as these is vital
to the safety and security of our citizens. Further, substantial
amounts of county funds already have been spent in reliance on
completion of these projects. Henry County has spent approximately
$700,000 to relocate various utilities to accommodate the roadway
improvements associated with the State Route 20/State Route 81 project.
In addition, the Georgia Department of Transportation has spent
approximately $8,000,000 to date for the construction of this project.
In reliance upon the inclusion of the Henry County projects in the
Atlanta Regional Transportation Improvement Program (``Atlanta Regional
TIP''), and its approval by the Georgia Department of Transportation
(``Georgia DOT''), Henry County has entered into participation
agreements with the Georgia DOT-to facilitate the design, right-of-way
acquisition and construction of these projects. Pursuant to these
agreements, Henry County has committed over $5,000,000 to these
projects, and to date it has spent $700,000 on these projects. Neither
the Department of Transportation nor the Georgia DOT will be
reimbursing the county for any of these expenditures.
In reliance upon the inclusion of these projects in the Atlanta
Regional TIP, and its approval by Georgia DOT, Henry County has already
begun work on several coordinating projects. These projects were
approved by the citizens of Henry County through a referendum vote, and
are being funded through a sales tax. These coordinating projects will
not operate as intended if the federally funded projects are not
completed.
Similarly, in coordination with and reliance upon these projects,
Coweta County has recently constructed a new fire station and ambulance
center on Highway 34 (at Ebenezer Church Road) at a cost of
$333,836.57. The County is also in the process of improving Ebenezer
Church Road to allow for the new station and center at a cost to the
County of $365, 556.46. Coweta County has entered into a Local
Government Project Agreement for the relocation of utilities on Highway
34, has spent $961,639 to date and will spend an estimated $243,000
more on this utility relocation project. Also, the County has made
plans to participate in both the continuation of the widening project
beyond the scope of the federally funded project discussed here, and
signalization at the improved intersections.
These and many other similar projects are of vital necessity to
Atlanta area counties due, in great part, to increased traffic flows on
Interstate 75 and Interstate 85. From 1996 to 1997 alone, traffic on
Interstate 75 increased 45 percent from the south Henry County line to
the State Route 20 interchange. For every day that these projects are
delayed, the excessive congestion in these areas, and the resulting
public safety problems, simply become worse.
dot regulations and guidance
Federal funding for the Atlanta area projects originally was
approved properly under the Federal conformity regulations issued by
EPA in 1997. After the D.C. Circuit invalidated related portions of
those regulations in March of this year, DOT issued guidance on May 7
that would have allowed completion of currently approved project phases
prior to adoption of a conforming TIP that includes the projects. For
example, if an approved project was in the design phase, that phase
could be completed while the revised TIP was being prepared. The effect
of this guidance on the projects in our counties was not expected to be
extremely harsh. A new, conforming TIP for the Atlanta area was
scheduled to be submitted this fall, and the currently approved phases
of the existing projects could proceed to completion while the TIP was
being prepared. It did not appear that a great deal of time would be
lost.
However, on June 18, 1999, the Department of Transportation issued
new guidance requiring immediate cessation of work on all projects
approved under the prior grandfather rules, except for projects in the
construction phase. Federal funding for projects that the Department of
Transportation has already approved but are in the design or right-of-
way acquisition phases will now be withheld, forcing those projects to
stop in mid-phase pending completion of the conformity process. This
new guidance represents a significant departure from the guidance
issued on May 7 and will cause serious disruption of highway planning
in major metropolitan areas throughout the Nation, including Atlanta.
Far from being required by the court's decision, the Department's new
guidance is not necessary to address the court's concern about an open
ended loophole for exemption of future projects, and is inconsistent
with the court's desire to avoid placing a retroactive burden on
previously approved projects.
In addition, the manner in which the new DOT guidance was issued is
deeply troubling. To my knowledge, the Department has provided no
public explanation of the basis for departing from the guidance issued
in May, and did not solicit prior comment or participation from the
public or affected state or local governments, such as the Henry County
Board. It appears that the new guidance was hastily prepared behind
closed doors to appease the plaintiffs in litigation, settled the same
day the new guidance was issued, over the projects in Atlanta. In
taking such action, the Department of Transportation appears to have
sacrificed the interests of both Henry County and the Nation to those
of the plaintiffs in the Atlanta litigation. Such an approach to public
safety and commerce issues of major national importance is singularly
inappropriate.
We perceive no air quality benefit to be gained from immediate
cessation of project activities involving design or right-of-way
acquisition. On the other hand, as explained above, many of these
projects are essential to improve safety conditions on overly crowded
highways with high accident rates, and to ensure ready access for
police, fire and emergency medical services to all parts of the
affected communities. Although the Federal conformity regulations
include a safety exemption, this exemption has been construed so
narrowly that many essential projects do not qualify. While we support
an orderly process for demonstration of air quality conformity, we do
not believe that the Department of Transportation's new guidance is
necessary to attain that objective, and the resulting delay will only
exacerbate serious public safety problems.
epa activities
One response we have heard to these concerns is that EPA intends to
publish notices later this summer correcting conformity lapses in many
areas, after which the projects currently stopped under the DOT
guidance will be allowed to proceed. If that happens, it will indeed
improve the situation in many areas. However, we have heard recently
that EPA does not intend quickly to correct the conformity lapse in the
Atlanta area. If that is true, we do not understand the reasons for it,
and intend to contact EPA shortly to discuss how correction of the
Atlanta lapse can be expedited. We are hopeful that we can work with
EPA to correct the Atlanta lapse, and secure approval of our projects,
as quickly as possible.
conclusion
The recent delays in the Atlanta area road projects caused by the
conformity issue do nothing to improve air quality, but will exacerbate
serious public safety problems on overly crowded roads. We urge the
Committee to recommend a process that strikes a more reasonable balance
between these important public concerns. We believe that the process
embodied in the 1997 EPA regulations, on which most of the affected
parties had agreed following rigorous public debate, was reasonable and
should be reinstated, through legislation to overturn the DC Circuit
decision if necessary. Failing that, the Committee should take the
following actions:
1. Require DOT to abandon the June 18 guidance and return to the
policy issued in May, under which previously grandfathered projects
may be completed through the approved phase.
2. Require EPA to take the necessary actions to correct conformity
lapses, including the lapse in the Atlanta area, as quickly as
possible.
3. Require DOT to adopt a conformity exemption or other expedited
procedure for approval of projects that are necessary to alleviate
public safety hazards but do not fall within the current exemption
for safety projects. On behalf of my colleagues in the Atlanta area
and others facing similar issues throughout the Nation, I thank you
for listening to our concerns.
Senator Chafee. General Wykle?
STATEMENT OF KENNETH R. WYKLE, ADMINISTRATOR, FEDERAL HIGHWAY
ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
Mr. Wykle. Thank you, Mr. Chairman and members of the
committee, for this opportunity to discuss with you today
conformity under the Clean Air Act. Mr. Linton and I have
submitted our joint statement for the record. We each would
like to make brief oral statements and then answer any
questions you may have.
As you know, under the Clean Air Act, Federal approvals for
transportation projects in nonattainment and maintenance areas
may be given only when those projects conform to the air
quality goals and priorities established in a State's air
quality implementation plan, or SIP. The EPA regulations
implementing the Clean Air Act had two provisions that are of
interest to us. One provision allowed projects that had
previously been found to conform to the State SIP and had
completed the NEPA process to continue to receive necessary
Federal approvals even in the absence of a currently conforming
plan or a transportation improvement program. This provision
was useful for transportation projects that may take years to
build and which for funding and other reasons are approved and
constructed in phases. This grandfather provision allowed
projects that had previously been found to conform to continue
to receive Federal funding even though there may have been
subsequent conformity lapses.
The second provision allowed conformity determinations to
be made based on the SIP emissions budget that had been
submitted to EPA but had not yet been approved or found
adequate. So you can make the assumption that it was going to
be approved and proceed as if you were in conformity.
The March 2 D.C. Appeals Court decision struck down both of
these provisions. We are no longer allowed to make approvals or
authorize Federal funding for most projects in areas where
there is a conformity lapse. As of July 12, the loss of the
grandfather provision affects seven areas of the country, about
158 surface transportation projects, with a construction phase
value of approximately $2 billion.
Two other areas are adversely effected by the loss of the
submitted budget provision, impacting a lot fewer projects. We
expect the latter two areas to reestablish conformity by
September, and all the first seven, except for Atlanta, to
reestablish conformity by the end of the year. We understand
Atlanta, which is the most affected by the decisions, will
expect to reach conformity by about March of 2000.
The list of affected areas is not static, however. Other
areas are likely to fall out of conformity at certain points.
The Federal Highway Administration will not be able to approve
a project in any nonattainment or maintenance area which is in
lapse unless the construction phase of the project had received
plan specification and estimate or equivalent approval prior to
conformity lapse, or is otherwise exempt from conformity. And
so, there are certain exempt categories--traffic control
devices, those types of things--which are not constrained by
this decision.
The Federal Highway Administration has worked closely with
the Federal Transit Administration and others in the Department
of Transportation and EPA to develop and issue guidance for
operating under the March 2 decision until the EPA can revise
its conformity regulations. We will work closely with the State
and local officials when any community faces a conformity
lapse. We are working with EPA as it develops its revised
conformity regulations. And certainly, Mr. Chairman, we look
forward to working with you and members of this committee to
advance needed transportation projects while improving the air
quality.
Thank you for this opportunity to testify. We look forward
to your questions.
Senator Chafee. OK.
Mr. Linton, do you have any statement you would like to
make?
Mr. Linton. Yes, Mr. Chairman, just very brief.
Senator Chafee. Fine. Go to it.
STATEMENT OF GORDON J. LINTON, ADMINISTRATOR, FEDERAL TRANSIT
ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
Mr. Linton. Thank you very much. Mr. Chairman and members
of the committee, let me join my colleagues this morning in
coming before you. I just want to say very briefly that we have
worked to try to make sure that we come up with rules and
regulations that meet the test of the court decision.
Obviously, we and you face challenges in meeting both our air
quality issues that confront our Nation as well as trying to
make sure that we provide both access and mobility to the
promise of America for those throughout our country.
We think that we have tried to both meet that test, to both
strike the very delicate balance between clean air for
Americans, and at the same time, building both highways and
transit projects that ensure continued access and mobility.
Clearly, FTA and FHWA have different points in our process
where we convey Federal funds to our recipients. In responding
to the court decision though we think we have struck a very
good compromise position. In responding to that decision, it is
important that both FHWA and FTA establish a roughly equivalent
point in our project development processes where we protect our
major projects from delays by a conformity lapse. We think we
have done that. The point for protecting a project on the
highway side of the equation is at the approval of plans and
specifications and estimates for the highway project. For the
transit projects, the approval point is at the approval of a
full funding grant agreement, which is our major contractual
agreement with our major transit projects. We have strived to
strike a balance, a balance that allows us, even after the
conformity lapse, to have these projects go forward when we
have made those types of major Federal commitments at that
point in the process.
Obviously, the challenge that we face of maintaining and
improving our air while continuing to have access to mobility
is going to be one that we will continually have to struggle
with within the Congress as well as the Administration. We look
forward to working with you, the members of the committee, Mr.
Chairman, so that we can continue to strike that balance, by
working out an agreement that ensures high quality of life for
the American public.
I look forward, Mr. Chairman and members of the committee,
to your questions. We stand before you willing to do so.
Senator Chafee. OK. Fine. Thank you very much, Mr. Linton.
Mr. Perciasepe, I guess you could say that this court case
on March 2 has caused a good deal of chaos within your
department.
Mr. Perciasepe. Which court case was that?
[Laughter.]
Mr. Perciasepe. I have a sense of humor. On the conformity
court case, obviously, it goes without saying that it required
the Department of Transportation and the Environmental
Protection Agency, in consultation with States, to sit down and
figure out how would our worlds work in this area to achieve
the goals I mentioned in my opening statement with the reality
of this court case. Where we came down on that as a team was
that we could put together a program that we feel pretty
comfortable with in terms of its ability to be workable and
achieve the goals that Congress set out and at the same time be
workable in the transportation world. And so that is what we
have been endeavoring to implement as a subsequent matter from
that court case.
That required looking at both the transportation and
transit construction pipeline, but it also required looking at
the air quality planning side of this and how can we expedite
what needs to be done in the air quality planning part. Half of
this planning game is not just a transportation plan, but
getting the air quality plan to be in good order as well. Some
of these lapses, obviously, are due to the fact that the air
quality plan or EPA's need to approve the budgets that are in
the plan, et cetera, need to be expedited. So we are also
working on that as well.
So, yes, it created turmoil. We have gotten to it to come
up with a program that we think is workable.
Senator Chafee. General Wykle, what do you say to what
Senator Bond was suggesting, that the conformity lapses could
be responsible for loss of life because of inability to proceed
with some of the safety measures. What would you say to that?
Mr. Wykle. Well, as was pointed out, the current rules
provide for certain exemptions and certain projects that you
are able to proceed on. Safety is one of those, emergency run-
off areas for trucks, as an example, is excepted, traffic
control devices--signage, signalling, those types of things--
are excepted. So there are quite a few provisions that permit
proceeding with projects that improve or correct deficient
areas in the infrastructure that might contribute to accidents
or crashes.
Senator Chafee. Senator Baucus?
Senator Baucus. Thank you, Mr. Chairman.
I am still unclear as to what went wrong in Atlanta. It
sounds like, and I am not there so I don't know, that the
Department of Transportation had these projects and the State
Department, and as State Departments of Transportation do and
should do, pushing them through. At the same time, it sounds
like the air pollution in the Atlanta region was starting to
get worse. And that, too, is they just were not talking to each
other very much.
I am really trying to find a solution to these kinds of
problems, an approach that will obviate court litigation and
things like that. I say that in part because that is my
experience in Montana, that State DOTs do not talk enough to,
say, Fish and Wildlife Service. Finally, we are getting the two
of them to talk and work things out to get ahead of the curve,
like apparently Portland is, Denver is, and I think it is
Charlotte, I have forgotten the name of the other town you
mentioned, Mr. Perciasepe.
But what did go wrong, and how could it have been avoided?
Anybody can answer, anybody who knows.
Mr. Perciasepe. Let me start and then others can fill in. I
think probably you hit the simple answer, that not getting
ahead of the development process and the air quality planning
process, so that they are coordinated, is the primary reason
that there was a problem in Atlanta.
One of the things that also happened is, as a lead up to
the lapse determination over a couple-month period, there was
NEPA approvals for six to 10 years worth of highway projects.
So it is clear that the existing regulations at least allowed
a, one might say, very generous ability to grandfather projects
even in the face of a significant coordination issue between
air quality planning and transportation planning. I think these
coordination issues are probably the primary cause for
precipitating what happened. I think there will be people here
from Atlanta who can probably talk in more detail about that.
What can we do to have that not happen again. We have been
working with DOT to come up with a Memorandum of Understanding
between the two of us, particularly EPA and the Federal Highway
Administration, to have a process in place with our field folks
so that long before it gets to that point we can work together
with the State and the local government to try to solve the
problem.
Senator Baucus. Part of the problem though, looking at it
from the Department's point of view or the contractor's point
of view, there is too much ambiguity from EPA or from the air
quality standards. For example, another court decision, as you
know, struck down the ozone regulations because, as I take it,
of ambiguity, or excessive use of authority, or whatnot. That
causes some problems I would guess at the other end; that is,
as to what they can and cannot do.
Mr. Perciasepe. The plans that we are working on with
States now are all based on the 1-hour standard. We won't get
to planning on the 8-hour standard until if and when the court
process ever gets completed, and then the States get into a
planning process sometime early in the next decade. So that is
something in the future. It will pose challenges, but it is in
the future. What we currently face right now is the issue of
the 1-hour standard. And that is what the issue was in Atlanta.
Senator Baucus. General Wykle, maybe you could speak from
the other point of view.
Mr. Wykle. Sure. I think Atlanta is truly an exceptional
case. There was a combination of factors, in my opinion, that
kind of all came together down there at the same time. You
certainly hit on one of the key ones, in terms of coordination,
talking, communication between the various groups and
activities and organizations involved. And then you have this
issue that was addressed in the Chairman's statement as well as
by Bob, in terms of planning horizons and the disconnect
between the transportation improvement plan timing horizon and
the SIP planning horizon.
Senator Baucus. How much of a problem is that? Is that half
of the problem, a quarter of the problem, a third?
Mr. Wykle. I don't know that I could----
Senator Baucus. Guess. Life is priorities, we have to
decide to what we are going to devote our time and attention.
Mr. Wykle. I do not know if it is quantifiable, per se, but
a significant piece of the disconnect is caused by that. And
then just a large surge in the number of projects--54 highway
projects, 37 design projects, and 21 right-of-way projects--
were grandfathered there. So you have a large number of
projects. So all these factors coming together, plus the
interest groups taking various positions cause the disconnect.
Senator Baucus. How easily could the State have amended its
SIP or addressed the increased congestion problems in Atlanta?
Mr. Wykle. How easily?
Senator Baucus. Yes. Could that have been done without too
much difficulty or not?
Mr. Linton. Senator, if I can add to the comments that were
made, and then I will answer your question as best I can. But
let me just say that Atlanta has only once, in the last 20
years, met the air quality standard. So I think we need to
understand that there has been a long history of problems
there, and that is with even the changes in EPA standards, only
once in the last 20 years have they met that.
Senator Baucus. So that should put the transportation
planners on notice.
Mr. Linton. That is correct. Clearly, as we examine
Atlanta, they have the largest per capita travel miles anywhere
in the world, at this point. I think there have been a lot of
people talking but there has not been a real commitment from
those who have met to really address this problem and look at
all the elements that affect it.
To that end, Governor Barnes has had to work very
diligently to create, in essence, a super agency in that
region. Once again, the effort there is to try to draw everyone
locally together and develop a real commitment to begin to
examine both their transportation projects, the impacts of
those projects, as well as the sprawl and the land use issues
that relate to those projects, and to how they improve or
become even more detrimental to the air quality. There has not
been a willingness for everyone to sincerely sit down and work
with that clear mission and clear objective.
I think, unfortunately, sometimes it has kind of taken, as
my grandmother used to say, you have got to hit them with a 2 x
4.
You have had the Wall Street Journal that has written
articles about the Atlanta situation, you have the Chamber of
Commerce that has weighed in with the business interest, you
have real estate interests concerned about what is going on
there. I think the magnitude of the problem has finally gotten
everybody to the table to begin to realistically approach the
problem.
Senator Baucus. Thank you. Thank you, Mr. Chairman.
Senator Chafee. Senator Voinovich.
Senator Voinovich. I have no questions.
Senator Chafee. Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman.
General Wykle, your June 18 guidance document replaced the
previous regulations. I would ask if the guidance document
underwent a notice and comment period?
Mr. Wykle. The initial guidance that went out did not
include a notice and comment period. It was an interpretation
of the court decision and providing guidance to our field staff
as to how to go about implementing the court decision.
Senator Inhofe. Well, but the original regulations
underwent a notice and comment period and this replaced it.
This is what I am getting to, is if you had an opportunity to
go through that process with your guidance document.
Mr. Wykle. If I am understanding the question correctly, it
is EPA's regulation. The court made a decision in terms of
provisions in that regulation which they struck down which
pertained to the grandfathering clause and the budget
submissions. And so we took that court decision and provided
guidance to our field. The revision and the rewriting of the
regulation will go through the normal comment period, but EPA
is responsible for doing that.
Senator Inhofe. But the guidance that we have right now
would not have gone through that? I am not saying this
critically, I am just trying to find out who was involved in
this thing.
Mr. Wykle. Right. It is just our interpretation in the
implementation of the court's decision and providing that
information to our field staff.
Senator Inhofe. I have been informed by different staff
members that the guidance document was worked out with the
Environmental Defense Fund. Is that correct, were they involved
in this document?
Mr. Wykle. Let me provide that answer for the record. I do
not know factually whether they were or not. I will have to
check on that.
[The information to be provided follows:]
The FHWA/FTA guidance was developed jointly by the two agencies, in
consultation with EPA. Input was obtained from some of our field staff,
but no outside stakeholder groups were involved. Stakeholder input will
be obtained as part of EPA's rulemaking process, when they amend the
conformity regulation to incorporate the changes resulting from the
Court decision.
Senator Inhofe. Mr. Perciasepe, do you have an answer to
that?
Mr. Perciasepe. I think the people who were party to the
litigation, and I do not know all of them who were involved,
had at least some input to whether or not this was an
appropriate interpretation of the court case. But, again, I
would also suggest that----
Senator Inhofe. In terms of the guidance document though,
EDF was in consultation?
Mr. Wykle. I was just slipped a note from my staff. No, it
was not.
Senator Inhofe. They were not?
Mr. Wykle. No. It was coordinated with EPA. So we worked
with EPA, not EDF.
Senator Inhofe. So the information I have is incorrect then
that this was----
Mr. Wykle. Based on the note I have here. But I certainly
want to go back and double check since you have raised that
issue. I will provide you the answer for the record.
Senator Inhofe. But would EPA have done it with EDF, Mr.
Perciasepe?
Mr. Perciasepe. Again, I think our attorneys were involved
in interpreting the opinion of the court and we had access to
the interpretations of the court that the other litigants have.
So whether there was a consultation or not, I do not know the
answer to that.
Senator Inhofe. Were the parties to the lawsuit involved?
Mr. Perciasepe. Only to the extent that they provided
papers to the court. I would have to determine if there was any
other.
Senator Inhofe. OK.
Mr. Perciasepe. But I want to reiterate what the
Administrator said, and that is that we needed to get some
initial guidance out to say what this court opinion means. But
we do have to go through a rulemaking to modify our rules,
which we will do.
Senator Inhofe. Was there any consultation, either one of
you, any consultation with the highway users, the State and
regional transportation officials, the builders association,
the unions during the development of this guidance?
Mr. Linton. Let me say, and I think we all would probably
like to get some further information to the committee and
submit it to the record, but since I was engaged with fairly
intense discussions with my counsel during the development of
the guidance, at no point did I know of any discussions with
outside----
Senator Inhofe. Including EDF?
Mr. Linton. That is correct. All the conversations that I
recall were between EPA and FHWA and FTA in terms of working up
guidance that responded----
Senator Inhofe. I think you have answered the question. I
am sorry I have to cut you off because I am running out of time
here and there are several areas I want to get into.
Will the Administration support the Bond bill? Anybody.
Mr. Wykle. Well, from our standpoint, the initial guidance
that we put out we believe is certainly legally defensible in
terms of going back and reviewing work that has been done. It
will be effective. We are certainly willing to work with the
committee on issues that you would like to address. But we
think that we need to be very careful in terms of taking any
actions that might reopen the Clean Air Act.
Senator Inhofe. I know my time is about up, but the Bond
bill actually codifies, goes back to where we were prior to
March 2. So my question then would be, would the Administration
support going back to that? And if not, if it was good enough
prior to March 2, why would it not be good now?
Mr. Wykle. I think I would just have to kind of come back
and reiterate that the court took a look at this, found some
weaknesses in it, we responded to that in terms of putting out
guidance that we think is legally defensible based upon review
of TEA-21. As an example, TEA-21 has in there that when PS&E is
approved, that is a legally binding contract, in essence those
are the words. So we think we have a very strong basis for the
current guidance and that it will be effective.
Senator Inhofe. Thank you.
Senator Chafee. Thank you.
One point I would make here. It is my understanding that in
the whole Nation there are only seven areas that we have got
this problem with.
Mr. Wykle. That is correct.
Senator Chafee. And so this is a serious problem obviously
with those seven, and they are: Ashland, Kentucky, Atlanta,
Kansas City, Kansas and Missouri, Monterey, Paducah, Raleigh,
and Santa Barbara County. That is seven out of I don't know how
many areas.
Mr. Wykle. It depends on how you count, Mr. Chairman,
because there is some overlap in the various areas. It could be
around 266 or so.
Senator Inhofe. It could be around what? I am sorry, Mr.
Chairman.
Mr. Wykle. That was 266.
Senator Chafee. So that is 266 areas in the country, but
there are only 7 where we have got a problem.
Mr. Wykle. There is some double counting depending on which
contaminant you are looking at.
Senator Chafee. Senator Bond?
Senator Bond. Thank you very much, Mr. Chairman.
First, General Wykle, if a bridge falls in with cars on it,
that is a safety problem, isn't it? If there is traffic on a
two-lane highway that would normally require four lanes and
somebody is killed in a head-on collision, that is a safety
problem, isn't it? And if a car goes off a road because it is
too narrow, that is a safety problem, isn't it? Doesn't that
kill people? We are talking about highway safety here. I think
you said safety projects are exempt. But Kansas City can't go
ahead and let contracts to build a new bridge which is in
dangerous condition. Now, where do you say that is not safety?
Mr. Wykle. Certainly, safety is important, and the
Secretary has indicated safety is his North Star, and we
support that. We are working hard to improve safety within the
Federal Highway Administration across many areas. When you get
into a definition of the projects you have described, there are
various options you can perhaps take.
Senator Bond. Options? We do not want options. They bought
the right-of-way, they started the projects, the Federal
Government approved them, and now they are stopped, we are
going to miss the construction season, and people can be killed
or die. Really, when you talk about safety, you are talking
about people losing their lives in the transportation process.
Mr. Wykle. Sure. When you are talking about safety you
definitely want to preclude people from losing their lives. As
you look at the Kansas City situation, there are some
alternatives there for the area to take to get back in
compliance relatively quickly. We expect them to be back in
compliance by the end of the year, if not sooner. That is not a
very long time, in my estimation, to get back in compliance.
And so preliminary type work can be ongoing that is not
expending Federal funds directly on this project. But in terms
of planning to get back in compliance, I think Kansas City will
make it by the end of the year.
Senator Bond. Kansas City, I am sure, will be moving
forward on meeting the standards. But you said $2 billion in
projects are on hold. When you miss a construction season in
our area, that is a further year delay. We kill over 1,500
people a year on the highways in Missouri. The Department of
Transportation has statistics indicating that maybe as many as
30 percent of those deaths are from inadequate highways. So you
are looking at putting people's lives at risk.
The Federal Government has approved these projects in the
process. The grandfathering provision was adequate according to
EPA in terms of assuring the air quality. What the court said
was there isn't legal authority for them to issue that.
I would ask you, Mr. Perciasepe, if you went through the
process, and you did, and you had everybody involved in the
process when you issued the initial grandfather rule, the court
says there is a lack of statutory authority, why is it that the
rule that was good enough from a clean air standpoint, from a
factual basis on how we proceed with highways is all of a
sudden not good simply because there is not statutory
authority? Shouldn't we give you statutory authority to do what
the EPA said was a responsible way of handling highway
projects? You have had the opportunity to go through the
process in approving these.
Mr. Perciasepe. Let's talk about that for a minute. I also
want to get back to the other question about safety. I want to
make it absolutely clear, because I am very nervous about the
way you are approaching that, we need to make it clear that we
are in no way looking for ways to reduce the implementation of
projects that are designed to prevent the loss of life on
highways. I understand what you are saying about how some
projects have multiple purposes including improving safety, and
that is an important factor that needs to be taken into
account.
And I would agree with the Administrator that the No. 1
answer is to get the areas into conformity. We do think in the
case of Kansas City, because I have talked to both Governors in
the last couple of days, that they can do this within months,
within weeks if we work out what they are going to do.
Senator Bond. I am about to run out of time. So let me just
ask you to comment on why they shouldn't continue to work on
air quality improvements and not miss a construction season on
projects that are designed to limit deaths on the highways.
Mr. Perciasepe. The projects that were given funding
commitment can proceed.
Senator Bond. Other new contracts cannot on those same
projects.
Mr. Perciasepe. If they have funding commitment, they are
not going to miss the construction season because they can
proceed. And if we can get them back into conformity fairly
quickly, they won't miss a construction season.
Mr. Wykle. What the Senator is getting at is segmented
projects, I believe. And so if you have a segment that is
approved, it can continue. It has PS&E on it or has funds on
it. But if you haven't reached PS&E on another segment of the
project, that is the issue the Senator is raising, the project
is delayed.
Senator Bond. Mr. Chairman, I will have questions for the
record or later on.
Senator Chafee. OK.
Senator Lautenberg?
Senator Lautenberg. Thank you, Mr. Chairman.
Obviously, we are facing kind of a complicated situation
here. I don't know whether any of you saw today's front page in
The New York Times where Salt Lake City was continuing to build
highways with the prospect of fairly significant congestion
problems anticipated in the future, and Milwaukee, Wisconsin,
is taking $20 million to destroy a half or semi-completed
highway project there because they have decided that sprawl,
congestion, et cetera, is not something that they want and they
are willing to pull back and say highways are not the only way
out of things.
So, when we look at definitions of safety, and Senator
Voinovich said in his comments that sometimes we in the east
are the recipients of unwanted gifts that flow from the west
through the air, if an accident takes place in one State, it is
a problem within that State, but there is no reason why people
in New Jersey, Connecticut, and Rhode Island have to import
health problems that are as damaging to one's safety as
accidents. And so we have to deal with the reality that this
isn't just a pell mell race to get something done because there
is a situation that could be a little compromised. I think
General Wykle said it, there are alternatives in Atlanta that
could be used.
The question therefore comes up, what do we do with the
half or semi-completed projects that are out there, knowing
full well that what can be expected in the future is more foul
air? What do we do with those things? How would any of you
suggest that we deal with it? Are we simply to march along
saying, look, this is something you started, and there is a
case there to be made, or do you say we are governed by rules
that protect more people than just those traveling in that
particular part of the country.
Mr. Perciasepe. I will take a very quick stab, and this may
not help enlighten too much the dilemma that State and local
governments face in their planning efforts. But from a
perspective of the air quality act and of the conformity part
of it, if the air quality plan and the transportation plan are
working in concert with each other, whether it is finishing
that stage or not finishing that stage is subject to that, and
that is a decision that goes on in the transportation
implementation planning process that every metropolitan
government undertakes.
The air quality can be handled depending on what kind of
decisions they would make. Right now, as I think the Chairman
mentioned, there are only seven areas in the country facing
this dilemma and we are working very hard in concert with the
Department of Transportation to get those people into
conformity so that there aren't any of these dilemmas.
Senator Lautenberg. Do you feel comfortable saying that out
of the 266 programs or projects that are now underway, only 7
are going to be problems? Or are we going to discover that
problems occur at a later time?
Mr. Wykle. First of all, sir, that was areas that are in
conformity lapse, not projects. So there are seven areas that
are in conformity lapse. We are confident, as I mentioned, that
we are going to get six of those seven back in conformity by
the end of the year. Atlanta has a projected date of by about
March 2000. But that does not mean that there will not be
others that may go out of conformity during this next 6 months,
because it depends upon their SIP and their conformity plans
and whether or not they maintain their conformity. So the
number will vary at a given time.
Senator Lautenberg. So what would each of you say to the
conformity requirement, do you think that we can universally
meet that requirement without abandoning or stopping any of the
projects that are currently underway or committed for?
Mr. Wykle. I think we can. I think we have demonstrated
that in the past. None of these court decisions is changing the
standard. It is a requirement to meet the standard and how you
meet the standard and the process for doing that. So I think it
has been demonstrated that we can meet the standard with the
projects that we need to construct. We will continue to meet
the standard. The debate I believe is over the process for
determining whether or not the standard is met. And so those
are the areas that we need to work together on to ensure that
we have a process that is agreeable to all of us and that we
understand. Then the communities can understand, and working
together, we can move forward to meet the standards and get the
projects completed.
Senator Lautenberg. That is what I think we all felt we
were doing before the court reviewed the situation.
Mr. Wykle. Sure. To me, informally, it is kind of like the
rules of the game changed during the game. The court decision
changed the rules by striking down the two provisions, one on
the budget submission, the other on the grandfathering. So now
we have put out some interim guidance as to how to operate with
that court decision. And EPA is in the process now of designing
and writing a new regulation that will go out for public
comment and input to implement that.
Mr. Perciasepe. It is important to note that the rules are
for when there is a failure to do the planning coordination.
Again, out of the 200 and some-odd areas that have to look at
this or that are regional planning areas, those are your MPOs I
guess that you all work with on transportation implementation
plans, there are seven that we are currently working with. I
think we have already said what we think will happen over the
next 4 or 5 months to try to resolve most of those.
And so the question is, if there is a failure of the
planning processes to be coordinated, what happens? What gets
to remain to sustain some continuity both in the transportation
and the air quality area, and what has to be fixed and how
quickly can it be fixed? To me, those are the central
questions. It isn't a matter of conformity, of stopping all the
highway projects in the United States. It is where has there
been a failure of the air quality planning and the
transportation planning to be coordinated, what do we do when
that happens to fix the problem and get it back on track, and
what happens while that fixing is taking place, do we have
adequate things in the pipeline going so that the adjustments
can be made by the local MPOs and States in terms of their
transportation planning and air quality planning. It seems to
me that is the area that we are focusing on, is how do we
manage that process. And more importantly, and I think this is
vital, how do we manage ourselves and working with the States
and the local governments so that we can get ahead of that
before it happens.
And so I think the decision you started off with in terms
of the what do you do about these phased projects, it really is
a matter of how does the local MPO and State transportation
planning want to handle that in the combination of the air
quality and transportation implementation plans.
Senator Lautenberg. Thank you, Mr. Chairman.
Senator Chafee. Senator Inhofe had one more question.
Senator Inhofe. I did, Mr. Chairman. I appreciate the
indulgence of the Chair.
Going back to the question that I asked about the
consultation in the guidance document, I heard your answer and
it was very specific that there were none that were involved.
There was a staff briefing on April 20th where DOT and EPA
briefed the staff and made a commitment that the EPA and DOT
will work with stakeholders to formalize the approach in the
conformity rule. Now this is a statement that was made by the
two of you. Was this done? Are there stakeholders that----
Mr. Wykle. Well, as I understood the statement, they will
be during the development of the conforming rule. That is yet
to be developed. And that is what EPA will be doing now in
light of the court decision. We put out some guidance to the
field in terms of our interpretation and the implementation of
the court decision. So when the rule is written, certainly EPA
will coordinate with the interested stakeholders.
Mr. Perciasepe. And we will do that while----
Senator Inhofe. You were talking about the guidance
document at the time. In fact, I am reading from your own
document here. It says ``EPA and DOT will issue more detailed
conformity guidance''--conformity guidance--``in the near
future.'' And it says that they would work with stakeholders at
that time. Now, I would assume that this has already happened.
Are you saying that you have not worked with stakeholders?
Mr. Wykle. I want to provide that answer for the record,
sir. I do not know. I have not personally talked to them. I
need to check with my staff to see whether or not they have in
fact done that. The note I received during the testimony was
that we have not coordinated with EDF.
Senator Inhofe. But you do both agree that both the EPA and
DOT did make this statement?
Mr. Perciasepe. Whatever piece of paper you have----
Senator Inhofe. Well, the two people who made the statement
and conducted the briefing are here in the room today, Margo
Oge and Jim Shrouds. Why don't you ask them.
Mr. Perciasepe. Margo Oge, who is the director of the
Office of Mobile Sources, is here with me today. But let me
just say some of this may be between the initial guidance that
we put out and how we are going to formalize it in the
rulemaking process. I can assure you we are going to work with
every stakeholder as we start to do the rulemaking process.
Before we even put out a proposal, we will be working with all
the stakeholders to put a finer plan. But we will formalize
whatever the interpretations are in the rulemaking process.
There will have to be some formalizing of the guidance.
Senator Inhofe. So there will be some consultation with
stakeholders, not limited to but including the ones that I
asked in my question, is that correct?
Mr. Perciasepe. States, MPOs, AASHTO, everybody who has an
interest in this will be involved in that process as we
formalize these interpretations.
Senator Chafee. Mr. Bond, if you could make it brief.
Senator Bond. I will make it very brief, Mr. Chairman.
I believe I have heard all three of you say that you are
working together, EPA, DOT, with the local officials to make
sure they come into conformity. That is very important. And you
have also said, I think I heard you say, Mr. Perciasepe, there
is no reason to stop projects which are 12, 15 year projects if
you are going to continue to get into conformity. And as I
understood General Wykle, the grandfathering approach worked
because the Federal Government had a cut at approving the
plans, if subsequent activities bring them out of conformity,
you continue to work to get the areas back into conformity.
These guidelines, the guidance is supposed to be
implemented by the MPOs and the State transportation officials.
That is correct, isn't it? They have written to me saying that
they are not workable. Is it your view that these State and
local officials are just wrong?
Mr. Perciasepe. Who is wrong and who isn't? As you know, as
in many of the issues we all deal with, it is in how you look
at it. These have to be tested as to whether they are wrong or
not. This assumption that they won't work has got to be based
on a number of factors that may be different than the factors
that we are considering.
Senator Bond. But the old system did work.
Mr. Perciasepe. One could argue that in Atlanta it did not
work. When you grandfather six to 10 years of projects without
any consideration of how that is going to impact air quality, I
think one might say maybe EPA's regulations sometimes are not
right.
Senator Bond. Yes. And maybe you were wrong in approving
them in Atlanta.
Senator Chafee. All right. Thank you all very much.
Senator Chafee. We will now ask the next panel to come
forward, which consists of Mr. Dean Carlson, Secretary of
Transportation from Kansas; Mr. Jack Stephens, Executive Vice
President of the Metro Atlanta Rapid Transit Authority; Mr.
Jacob Snow, General Manager of the Nevada Regional
Transportation Commission; and Mr. Pisano, Executive Director
of the Southern California Association of Governments. If
everybody could take his seat.
We are going to move right along now. We will start with
Mr. Carlson.
STATEMENT OF E. DEAN CARLSON, SECRETARY OF TRANSPORTATION,
KANSAS DEPARTMENT OF TRANSPORTATION
Mr. Carlson. Mr. Chairman, members of the committee, I am
Dean Carlson. I am here to testify on behalf of the American
Association of State Highway and Transportation Officials. I am
the Secretary of Transportation in Kansas. I want to thank you,
sir, for your bold leadership in holding this hearing to
address the critical problems that are associated with this
very complicated issue called transportation conformity.
On June 18, the Federal Highway Administration and the
Federal Transit Administration called a halt to Federal funding
for a dozen projects in eight States, according to our records,
adding up to hundreds of millions of dollars. This is the
result of the March 2 court decision which overturned
grandfathering, the ability for projects that have received all
environmental approvals to proceed if an area later cannot
demonstrate conformity.
Mr. Chairman, AASHTO supports the national goal of
improving air quality. We strongly believe that environmental
stewardship is very much a part of our fundamental
transportation mission, and we continue to seek innovative,
multimodal strategies to achieve these two goals. However, we
are extremely concerned that the agreement reached by EPA and
DOT to implement the March 2 court decision is burdensome and
unworkable. To this end, we strongly urge your support of S.
1053, recently introduced by Senator Christopher ``Kit'' Bond.
S. 1053 would reinstate the transportation conformity
process as it existed prior to the March 2 decision. While it
does not solve all the problems we have with conformity, it
would permit us to return to rules that were adopted after
lengthy negotiation and debate within the transportation and
environmental communities. We strongly support enactment of S.
1053.
The current transportation conformity regulations were
drafted by EPA to implement the provisions of the Clean Air Act
Amendments of 1990. As we gain practical experience, three sets
of amendments were negotiated to improve their effectiveness.
Unfortunately, this was completely undone by the March 2
decision. In its decision, the court remanded several key
adjustments made by EPA which were designed to bring some
flexibility and common sense to the conformity process.
Essentially, the court eliminated the grandfathering provision,
prohibited the use of submitted budgets as a basis for making
conformity determinations, and eliminated the 12-month grace
period that was available to newly designated nonattainment
areas to technically prepare for conducting conformity
analysis.
Despite our urging, EPA chose not to appeal, instead,
crafting with DOT an administrative agreement which from their
perspective would soften the impact of the court decision and
would avoid uncertainty that might have occurred during an
appeal. We believe the June 18th guidance released by DOT and
EPA does not mitigate the impacts of the decision. It is even
more restrictive and burdensome than earlier guidance issued
soon after the court's decision. Nor does this administrative
action ensure that additional court challenges will not
continue to disrupt transportation programs.
In essence, what we now have is an agreement between EPA
and DOT which is intended to mitigate the impacts of the
court's ruling but actually allows highway project development
to be disrupted right up until the day construction begins. In
fact, DOT has informed States that in the event of a conformity
lapse, they will immediately stop payment for ongoing design
work and right-of-way acquisition. These are not new projects
but, rather, ones that are the product of a rigorous and
lengthy regional transportation planning process and that have
already passed previous conformity tests. This is work
undertaken under a formal project agreement, essentially a
contract between the State and Federal Government. The court's
action effectively abrogates those contracts. The decision not
to appeal essentially means that unilaterally one half of the
parties to the contract decided not to try to keep the contract
in force.
Mr. Chairman, the court itself recognized the burdensome
nature of its ruling, stating: ``If this legislative scheme is
too onerous, it is up to Congress to provide relief.'' Such
relief is needed and the legislation introduced by Senator Bond
would statutorily reinstate the conformity status quo that
existed prior to March 2.
In my own State of Kansas, we have determined that in order
to maintain air quality, 10 years from now the Kansas City
metropolitan area will need to begin using reformulated
gasoline. Ten years from now. This 10 year horizon would give
us the time to put in place the necessary distribution
infrastructure to ensure a smooth transition and effective
implementation of this air emission reduction strategy.
However, EPA is insisting that in order to take credit for
this strategy in Kansas City's Long Range Plan, we must have
enforceable mechanisms in place to begin using reformulated
gasoline within 1 year despite the fact that it is not needed
for 10 years. Without the ability to take credit for this
effective emission reducing strategy in the long-range plan,
Kansas City's transportation conformity demonstration has
lapsed and our transportation program has come to a halt. Both
highway and new transit capacity projects have been stopped.
We are not alone. Other areas face similar problems. In the
Raleigh, North Carolina metropolitan area, the court's decision
affected some $72 million worth of projects. Other projects are
on hold in Kentucky, California, Georgia, and Missouri, and
others. My written testimony includes examples of how some
metropolitan areas are already experiencing problems due to the
court decision.
To understand how convoluted and difficult this issue is, I
have attached an example of what could happen to a project
under the conformity regulations that are now covered since the
June 18th direction. However, these problems, while they are
restricted right now to either seven or eight areas, depending
on how you count, these problems will spread throughout the
country to other nonattainment and maintenance areas, the
numbers of which will increase with the new ozone and
particulate matter standards.
Mr. Chairman, AASHTO's member States share the national
goal of improving the air quality and believe that we should
work cooperatively with the Federal Government and
environmental community to find and implement practical and
effective procedures and strategies to help us meet our mutual
goal. The D.C. Circuit Court decision has placed the States in
an impossible situation that leaves project funding facing an
uncertain future, right up to the point at which the shovel
goes into the ground. EPA and DOT attempted to mitigate the
effects of the decision but, unfortunately, each successive
release of guidance became ever more restrictive. Legislative
action I believe is now required, and we applaud Senator Bond's
efforts on this issue and urge your support of S. 1053.
I am prepared to answer any questions, and request that my
written testimony be included in the hearing record. Thank you.
Senator Chafee. Yes, that will be done. Thank you very
much.
And now Mr. Jack Stephens from the Metro Atlanta Rapid
Transit Authority.
STATEMENT OF JACK STEPHENS, JR., EXECUTIVE VICE PRESIDENT,
CUSTOMER DEVELOPMENT, METRO ATLANTA RAPID TRANSIT AUTHORITY
Mr. Stephens. Thank you, Mr. Chairman, members of the
committee. I appreciate the opportunity to appear before you
today. I am Jack Stephens, Executive Vice President at the
Metropolitan Atlanta Rapid Transit Authority in Atlanta. You
have my written testimony. My message to the committee is very
simple. The Clean Air Act and the resulting regulations and
court actions are serving as change agents in our community to
focus our attention on our health and traffic congestion
problems and solutions to those.
Although I am a strong advocate for public transit in the
transportation conformity discussions within all areas of our
government, that is not the reason I appear before this
committee today. I hopefully am able to offer you some insights
as to what is going on in Atlanta as a unique experiment, if
you will, in terms of these conformity regulations and give you
our experiences down there.
Atlanta is extremely successful as an overall community. We
are very, very pro-business, but we have a couple of problems.
We have few natural barriers to growth; no great rivers to
cross, no mountain ranges or valleys, no sea coast. We have a
history of weak land-use laws. These are generally assigned to
local governments. And like water poured onto a flat surface,
we can, and do, grow freely in any direction that we desire.
Without natural boundaries and with competition for growth
strong among local governments, our region has become the
poster child for sprawl.
As recently as today, the Newsweek Magazine, the latest of
many, is touting Atlanta as the ``sprawl capital,'' not
something our civic boosters or our business leaders would like
to have touted to the rest of the world. And it explains our
problems pretty well. Sprawl has results in Atlanta residents
traveling more in their automobiles than anyplace in the world
we believe, more than 100 million miles a day, representing
36.5 miles per person, including every man, woman, and child
below driving age. Our average commute now is almost 51
minutes.
The result is that the Atlanta region has been classified
as serious for nonattainment, I think obviously so. Federal
sanctions placed on my community are undoubtedly causing
difficulty. The response to these sanctions has brought out the
worst and the best in our public servants and our citizens. Let
me give you one example, one we have been talking about a
little bit today already.
When the Federal sanctions were imposed on our region for
failing to meet conformity, more than 100 road projects were
considered for grandfathering under conformity regulations.
Most of these would have greatly increased single occupant
vehicle use in the region and exacerbated the problems of
cleaning the air. These were not necessarily bad projects, and
all were projects individual local governments advocated and
the Georgia DOT supported for local development and increased
mobility. However, even if Federal sanctions remained in place,
for any new road projects, estimates were that these projects
would take up to 10 years to complete--at a time when we were
in serious nonattainment for ozone. Was this the intent of
Congress? I certainly hope not.
But the system worked in this case--difficultly, ugly, but
it worked. Subsequent negotiations among Federal and State
agencies paired this list nearly in half. Then a lawsuit was
filed and settled out of court that reduced the number of
projects to 16. Although not everyone, and perhaps no one, was
totally satisfied with the result, I think it is clear that it
took the region in the right direction for solving its clean
air problems. I am convinced that this result would never have
been achieved without the law and the court's insistence that
the will of Congress be obeyed.
Congress' intent expressed through the Clean Air Act,
Federal agencies' willingness to impose sanctions, and the
Federal court's willingness to uphold the law have
significantly changed the dynamics of decisionmaking in the
Atlanta region. Unquestionably, that was the reason our newly
elected Governor Roy Barnes was able to convince the State
legislature to create a new State agency, the Georgia Regional
Transportation Authority. We call it GRETA, and it is empowered
to withhold State support for transportation and other projects
if local governments are not responsible in planning and
addressing issues of transportation conformity and congestion.
The transportation conformity requirements and ultimately
the threat of successful litigation are forcing communication
among all levels of government charged with transportation and
environmental planning. If we want more roads, then we must
support other transportation alternatives that will allow us to
achieve conformity. Meaningful land use planning to better
support our transportation decisions and smart growth policies
are now being debated as clear elements in preserving our
quality of life and continued regional success.
In conclusion, I would ask Congress and this committee to
move cautiously in considering changes to the transportation
conformity provisions of the Clean Air Act. Change is occurring
in our communities challenged with achieving conformity and
meeting the national air quality standards. We continue to need
help from our Federal partners as we seek to meet this
challenge, but we must solve our own problems at the State,
local, and regional level. Sadly, it is unlikely that this will
happen without the continued insistence of the Congress in this
matter. Thank you, sir.
Senator Chafee. Thank you, Mr. Stephens. I must say, those
statistics you gave us, did you say that the Atlanta people
travel 100 million miles a day?
Mr. Stephens. Yes, sir. That is the latest from our State
Implementation Plan.
Senator Baucus. I believe it. I have two relatives down
there and they drive a lot.
Mr. Stephens. Yes, sir.
Senator Chafee. And every man, woman, and child, as it
works out, travels 36.5 miles per day.
Mr. Stephens. Yes, sir. Correct.
Senator Chafee. Incredible.
Mr. Snow?
STATEMENT OF JACOB L. SNOW, GENERAL MANAGER, CLARK COUNTY,
NEVADA REGIONAL TRANSPORTATION COMMISSION
Mr. Snow. Mr. Chairman, members of the committee, my name
is Jacob Snow, I am General Manager of the Regional
Transportation Commission of Clark County, Nevada. We call it
RTC for short.
The RTC does three things: We administer about $50 million
annually of locally generated fuel taxes for street and highway
construction; we serve as the transit service provider for the
greater Las Vegas area; as well as serve as the metropolitan
planning organization for the greater Las Vegas area and for
Clark County. That means that we are responsible for preparing
a regional transportation plan and a transportation improvement
program through which all Federal funds for street and highways
must flow.
Mr. Chairman, you and I jointly share a mutual friend in
Elaine Roberts, who is the chief administrator of T.F. Greene
International Airport in Warwick, Rhode Island. She is a very
fine airport administrator. The reason I mention her is that
she preceded me as the chair of the environmental committee of
the American Association of Airport Executives. And ever since
1993 when the air quality conformity regulations were
promulgated, it has been a significant issue for airports.
Speaking of this case in Atlanta, we have talked about how
the consequence of that is that Federal funds cannot be spent
on highways projects right now. Well, think of the Atlanta
airport. They have a major expansion program going on with a
new runway, a new international terminal involving hundreds of
millions of dollars and Federal funds are involved in that
project. You would think that the logical corollary would be
that those funds and those approvals would also be held up. But
they are not.
And I am here to tell this committee that not all
transportation related to air quality conformity determinations
are created equally. Because for airports, they fall under a
different rule called ``general conformity.'' I am going to try
to use this high-tech visual aid here, this balloon, to
demonstrate that. We have talked about emission budgets today.
The amount of air in this balloon would represent the
amount of hazardous air pollutants that could be generated with
100 million miles of roadway travel in Atlanta per day. Now the
airport projects will also have additional emissions associated
with them, and they must be accounted for in an air quality
conformity determination. Roughly, airports in a municipality,
a large urban area is about 10 percent of the total. So what we
have got to do is we have got to take this total of air
pollutants and add about 10 percent to it. Roughly, for
airports.
[Laughter.]
Mr. Snow. Now these airport projects can go forward
because, under the general conformity rules, airports can
provide project level mitigation. They can go out in the
community and acquire emission reduction credits or they can
reduce emissions on the airport through a number of ways. They
can thus reduce that 10 percent down to meet the emission
budget.
We in the surface transportation industry do not enjoy that
kind of flexibility. We do not have it because of the way the
regulations are written. We cannot provide project level
conformity for street and highway projects. We should be able
to. We think, Senator Lautenberg, you mentioned Salt Lake City
and Milwaukee where they are choosing to go in different
directions based on local choice and preference, we think that
local municipalities ought to have that preference to
prioritize how their transportation projects ought to proceed
and not have the Federal Government micromanage transportation
policy at the local level.
So what we would suggest would be that, even though there
are legislative solutions out there to this problem which have
their merits and need to be debated by Congress, the statute
would allow a change in the regulations so that for
transportation conformity the local governments also have the
option to provide project level mitigation so they can decide
if their street and highway projects are really important to
the community.
What is worse is that, as a result of this new case, there
are very beneficial projects for transit--and when I say very
beneficial, I mean very beneficial to air quality--but we
cannot use Federal funds if our TIP lapses to acquire new
busses which will take cars off the road, put the people in a
high occupancy vehicle, and thereby reduce emissions
significantly. Same thing for a new start with a fixed guideway
project. We will not be able to use Federal funds to clean the
air.
So, in essence, the Federal Government is telling us is in
Las Vegas you have got an air quality problem, we have got the
way to help you solve it with Federal funds, but we are not
going to. Solve your own air quality problem first even though
we have the means to help you do it. Well, we don't think that
makes much sense.
Our suggestion to this committee would be that through the
regulatory process, if you go ahead and allow local governments
the option to choose, give them the ability to provide project
level mitigation, that they, in and of themselves, with the
Federal Government's help, can reduce the amount of pollutants.
That is our suggestion to this committee.
In conclusion, Mr. Chairman, I want to also state that I
would like to submit my written testimony for the record. I
want to read this final paragraph because Section 7506 of the
United States Code states that ``Any Federal project that will
contribute to eliminating or reducing the severity and number
of violations of the National Ambient Air Quality Standards is
a conforming project.'' Now, that is a true statement.
Ostensibly, projects such as enhanced bus service, high
occupancy vehicle only lanes, and new and expanded fixed
guideway systems that can demonstrably show a reduction in
hazardous air pollutants in association with their
implementation should be allowed to proceed forward and be
federally approved and funded. Thank you.
Senator Chafee. Thank you very much, Mr. Snow.
Mr. Pisano?
STATEMENT OF MARK PISANO, EXECUTIVE DIRECTOR, SOUTHERN
CALIFORNIA ASSOCIATION OF GOVERNMENTS
Mr. Pisano. Chairman Chafee and members of the committee,
my name is Mark Pisano, the Executive Director of the Southern
California Association of Governments. We are the MPO for six
counties in southern California, 186 cities, which makes us the
largest MPO in the Nation. Not only is the region the largest
MPO, but we cover four air basins and five air districts. One
of those air districts and basins is the South Coast Basin,
which is an extreme, and the only extreme, nonattainment area
in the Nation. Consequently, we have a keen interest in the
subject matter before the committee today.
At the outset, I would like to state that since the process
of conformity was introduced in 1990, we have found it to be a
major tool in our efforts to plan transportation improvements
and to meet air quality within our basin. The conformity
requirements coupled with the financial constraints and the 16
factors have led to a process that has caused us to change and
transform the way transportation decisions are made in our
basin. I would be happy in the question period to explain the
changes that have occurred and what the fundamental impact of
these provisions have been in our region.
Not only has there been a change, but we have also during
that time period successfully made two transportation plan and
four transportation improvement plan conformities plus a major
amendment to our transportation improvement plan within our
region despite an increase of 12 percent in our population
within the region. However, it is also very important to note
that making conformity findings is becoming increasingly
problematic for us, which could put in jeopardy our ability to
carry out the $24 billion in projects currently contained in
our transportation improvement plan.
Simply put, the process works and conformity works, but the
process is complex and cumbersome, and it is also expensive. We
believe that there are streamlining and simplifications and
improvements that can be made to process, and I would like to
offer a few suggestions.
The first relates to the issue of the budget contained in
the air quality plan and the time period for the transportation
plans. Let me give you a specific example. Our current approved
State Implementation Plan, which was approved in 1994, has a
2010 date and it has a budget for that date. But our
transportation plan that we adopted goes to the year 2020 and
we are now considering a 2025 plan. The time period between
2010 and 2020, we have to meet the same budget. There is no
provision to take into account technological changes or the
potential for rules to be introduced post-2010.
As a result, we perceive a difficulty in providing for
growth in the region. I might note that growth in our region is
substantial and one of our most significant issues. In fact,
our population will grow by 6 million residents on top of the
current 16.7 million that we have in the region, for a total of
almost 22.5-23 million people by the year 2020.
I have suggested a number of mechanisms that could be
considered to deal with this change in budget issues, such as a
build or no-build test, or allowing historical demonstrated
technology to be introduced into the budget.
The second issue is timing cycles. As I said, conformity is
expensive. We have a transportation plan that is adopted every
3 years, an air quality plan that is adopted every 3 years,
they are not necessarily on the same cycle, and then we have
transportation improvement cycles that are every 2 years. We
need to find mechanisms in which we can more effectively couple
and only conduct conformity requirements when they are needed,
and furthermore, that we minimize the number of conformity
findings.
The third issue is EPA's approval process on plans. We
currently are operating off of a 1994 State Implementation
Plan. We approved in 1997 an AQMP at the local level but,
because of difficulty between EPA, the environmental groups, et
cetera, that plan has not yet been approved. We need to improve
the consultation process so that we do not get to the end of a
plan and find difficulties with our approving agencies.
The next issue that I would like to discuss is the question
of the impact of sanctions for nonattainment status. Currently,
as the statute is written, we have difficulty in balancing, and
this is based on experience from other areas, not from our own
area, but we have difficulty in balancing the impacts between
transportation and other sectors. Once a region is declared out
of transportation conformity, it is unable to restore its
conformity through measures taken in other areas. Each sector
is treated as a closed system and there is difficulty in
balancing the provision and timing of implementation of
measures in different sectors. This cannot cross the borders of
the various sectors.
I might also note that the impact of sanctions in the
various sectors is uneven. There is a very strong motivating
force in the transportation area. I ask whether or not the same
forces exist in the other sectors so that every one can come to
the table and make the agreements necessary.
Which brings me to my last point, and that is a large
sector in our region involves Federal actions under both
general conformity provisions, as has been stated, and also
federally controlled and regulated sources. The first part of
that issue is the interagency consultation process. We
constructed our own process, it was not provided for in the
regulations. We are suggesting that provision be incorporated
into the regulations upon their next revision.
With respect to the issue of general conformity, we have a
very strong working relationship with DOD and FAA where we make
findings on conformity on base closures and on airports. But
those are the only Federal agencies in our region that we have
general conformity findings made. EPA on their own programs, of
water, waste water, solid waste, does not make general
conformity findings, as well as HUD, Commerce, Interior, and
there are significant actions that those agencies take within
our region. A more consistently applied general conformity
would be helpful for attainment, as well as the more active
involvement of the federally regulated sources like diesel
engines, trains, ports, and airports are important for meeting
attainment in our region and enabling us to continue to
maintain our conformity findings.
This concludes my remarks. I would be pleased to address
any questions that you may have. Thank you.
Senator Chafee. Thank you very much, Mr. Pisano.
I have a question for Mr. Snow. You made the point in your
testimony when you had that little bus out there that transit
projects will be delayed during a conformity lapse and that is
bad for the environment. But wouldn't the best thing for the
environment be to make sure that the highway emissions fit
within your goals?
Mr. Snow. Absolutely. And also in my testimony, Mr.
Chairman, I wanted to emphasize that it needs to be up to the
community to have the option to provide project level
mitigation. And so, for example, if a new street or highway
project were proposed, it could go forward if that community
were able to reduce emissions from the overall budget in some
other area. At least that way the community would have the
option to prioritize what was important for them and at the
same time meeting air quality goals but also meeting
transportation demand.
Senator Chafee. Mr. Carlson, I am not sure that I
understood you. Is it your contention that emissions from cars
and trucks have been reduced so much in past years that you
don't need to make any effort to control them in the future?
That probably wasn't what you said.
Mr. Carlson. Not exactly. No, what I said was that we are
in conformity until 2010, which is the period of the SIP
budget, but we would be out of conformity beyond 2010 and
reformulated gasoline would solve that problem. But EPA will
not let us wait until 2010 to impose that. We have to have an
opt-in letter from both of our Governors immediately with a 1-
year phase-in even though we do not need that correction until
after 2010 to conform Kansas City's plan.
Senator Chafee. All right.
Mr. Stephens, this conformity business, do you think it has
been helpful in making Atlanta rethink its regional
transportation strategies?
Mr. Stephens. Yes, sir, no question about it in my mind.
The issue of conformity is extremely difficult for the
implementing agency, whether it be a highway department, or a
transportation department, or a transit organization, or a
local government. There is no question about the complexity--
the changing of the rules when the regulations change, and what
is going on with the law, an amendment here and what kind of
impact does it have, a court decision. Everything changes, just
like it did on the new guidance we recently received.
Ultimately though, if it is the will of Congress and a
commitment to keep your eye on the prize, which in this case is
clean air for our citizens, then all of these other things are
what we are paid to deal with, to argue about, to go through to
get to our ultimate goal, which is clean air for our citizens.
I think the Clean Air Act and all of the resulting issues
that we have been discussing here today are directing us to
that point and will help us achieve that goal. I wish that we
could be extremely reasonable and insightful and wise and go
about it just because it is the right thing to do.
Unfortunately, the way that our government is put together at
all levels does not always allow for that to occur simply
because it is something that we would like to occur.
Senator Chafee. Senator Baucus?
Senator Baucus. Thank you, Mr. Chairman.
As I perceive this problem, it seems that the courts are
trying to follow the law, and there is a law here. Basically,
we are dealing with the 1990 Clean Air Act, an act which passed
this Congress overwhelmingly, very few votes against it, lots
of different problems worked out, but which did include a
provision on the conformity standards that we are basically
addressing today. And I also understand there is a little bit
of a disconnect between surface transportation and airport
projects and so forth. Nothing is perfect.
There is a law there, and I think Mr. Perciasepe made a
good point that the regulations are designed for when there is
a problem. We are trying to avoid problems. So my question is,
how much latitude do you have within your communities to put a
plan together that includes transportation projects and so
forth without statutory change? That is, if you were to be
really creative--and I know you have got a timing problem here,
a cycle problem, you have got 2020 for one plan and 2010 for
another, I know that is kind of a problem that exists in each
of your areas--but if people got together and said we just want
to solve this thing, build highways and build our
transportation projects but we also want to adhere to the
provisions of the Clean Air Act, and even though the SIP date
is different than the transportation plan date and so on, how
much can you do this on your own without having to get approval
from Washington? Where there is a will I generally think there
is a way. But can you do that or what assistance do you need?
Mr. Pisano?
Mr. Pisano. We have the capacity, and have in fact done it.
I indicated in the first part of my testimony that we in
southern California, with an extreme basin and several other
basins that are serious basins, we have put together programs
that get us to attainment, both attainment for air quality and
transportation plans that conform. We have had to radically
change the mix of program strategies and projects within our
region. Over the past 20 years, there has been a transformation
and that transformation continues. And the provisions in the
statute, as I have noted, have been an encouragement for us to
do that.
Senator Baucus. I don't think you can do it.
Mr. Pisano. Pardon?
Senator Baucus. You think you can do it?
Mr. Pisano. Well, we have done it. Now we have to continue
moving forward and making progress in those strategies. We are
going to need your help on those strategies, no question about
it.
Senator Baucus. Mr. Snow?
Mr. Snow. I would just like to add on to that. It can be
done. We have done it in Las Vegas. But the regulations say
that we have got to update our regional transportation plan at
least every 3 years. So while we may be able to demonstrate
conformity in one 3-year interval, we may have so much growth
and so much increase in vehicular miles travelled that when it
comes time to update that transportation improvement program
and that regional transportation plan that looks out 20 years,
we may not be able to do it and we may be in a lapsing
situation.
Senator Baucus. But in talking to EPA about all this, maybe
talking to your congressional delegation, can you work out that
problem?
Mr. Snow. Yes.
Senator Baucus. Mr. Stephens?
Mr. Stephens. Yes, Senator. We are the ones that are the
longest away from it I guess, March of 2000 is when we are
aiming at it now. But we fully expect to achieve that under the
current statutes and regulations as they exist. It is extremely
difficult, as you know, but it is achievable.
Senator Baucus. But in a way that does not delay projects?
Mr. Stephens. Projects are certainly going to be delayed.
We cannot build everything we want to build. We cannot lay down
every road we want to lay down, we cannot build every transit
line we would like to build under the current regulations. We
can argue about that a lot about what we should do and
shouldn't do. But it can be achieved under the current
guidelines, with difficulty.
Senator Baucus. I assume you would all give the same
answer, that some projects are delayed. The question is, are
the delays unreasonable in your view?
Mr. Pisano?
Mr. Pisano. If I might note, we are not delaying any
projects within our region, Senator. The issue of attainment is
one that is not only supported by this Congress but also
supported by the residents in our region. They want attainment
programs.
Senator Baucus. Mr. Snow?
Mr. Snow. We could benefit and projects would not be
delayed if we had more flexibility under the current regulatory
process.
Senator Baucus. Who has to give you that flexibility?
Mr. Snow. The Environmental Protection Agency through the--
--
Senator Baucus. And didn't you say you could work that out?
Mr. Snow. Well, we think it is a cooperative process.
Senator Baucus. I understand. I understand.
Mr. Carlson?
Mr. Carlson. We were a nonattainment area in the 1970's and
1980's. We are now a maintenance area. The problem really is
that the start and stop character of these regulations that
have been put out in June have actually a discriminatory effect
against the States. No one is saying we have to stop design,
right-of-way acquisition. What they are saying is we won't pay
for it. It seems strange to me.
Senator Baucus. I see my time has expired. But my guess is
that in most cases, with a little foresight, a little
creativity, these things can be worked out without any
unreasonable delay in projects. That is my guess. But it takes
work. Thank you.
Senator Chafee. Senator Voinovich?
Senator Voinovich. Mr. Carlson, if I hear you correctly in
terms of the reformulated gas situation, basically they are
anticipating probably higher standards that you are going to
have to comply with and therefore want you to get started with
doing the initial things that are necessary to make it happen.
It appears to me that the State Implementation Plan and the
negotiation over it has a lot to do with the whole business of
conformity. If you cannot work that out with the EPA, then you
are not going to be conformed to the standards. Would you care
to comment on that?
Mr. Carlson. Our difficulty is in the 10-year period beyond
2010 when we will essentially have our transportation plan
being the conformity vehicle to stay within the SIP budget.
Reformulated gasoline at any time during the first 10 years
will do that.
Senator Voinovich. My other question is, how does the Bond
bill do a better job than what the agency has done in terms of
their new regulations?
Mr. Carlson. The Bond bill would put the conformity
determination back to where it was before the March 2 court
decision. What we really had then was the ability to have a
continuous program of improvements, including preliminary
engineering design and right-of-way acquisition, that we are
really kept from doing with Federal funds. Those States that
have enough money of their own can continue to advance
projects, those States that rely on the Federal Government for
a match for all their activities in the highway area cannot do
that. So it would put the conformity process back to where it
was negotiated before the March 2 court decision.
Senator Voinovich. Does anyone else want to comment on
that?
[No response.]
Senator Voinovich. Fine. Thank you, Mr. Chairman.
Senator Chafee. Senator Inhofe?
Senator Inhofe. [assuming the Chair]. Thank you, Mr.
Chairman.
First of all, Mr. Carlson, Neil McCaleb has commented very
favorably on your performance and what you have done in our
neighboring State of Kansas. I think all too often people come
here thinking we don't have an idea of the frustration you go
through at either the local level or the State level. Of the
four of us here on this committee, three of the four have been
Governors, Senator Voinovich and I served as mayors of major
cities. And so we understand what some of these mandates are,
the confusion of the conformity that is imposed upon us. I just
want you to know that you do have people up here who do
understand these problems.
You have called for the enactment of the Bond bill but you
also say that it does not solve some of the old problems. Could
you elaborate a little bit on what is not resolved by the Bond
bill.
Mr. Carlson. I think the time gap between the State
Implementation Plan's budget and the years covered by Kansas
City's Long Range Plan is one of the major ones for us. Also,
it is difficult to see how some of the criteria that are in the
Clean Air Act and the subsequent ISTEA that was passed in 1991
relate. This convoluted process can create a stop and start
situation, and can seriously impact safety. So I think those
issues should be addressed.
Senator Inhofe. Well, this is a whole committee, less the
Chairman right now, meeting and the reason is we are dealing
with two subcommittees, one chaired by Senator Voinovich,
transportation, and one chaired by myself, the air. What I
would like to ask you to do is submit to us legislative
language, help us draft something that will resolve some of
these problems. If you could do that for the record.
I would like also to get one brief comment from each of you
in terms of supporting the Bond bill. Mr. Carlson, you have
already committed yourself.
Mr. Stephens, you said in conclusion that you would ask
Congress and this committee to move cautiously in considering
changes to the transportation conformity provisions. Do I
interpret that as you do not support the Bond Bill?
Mr. Stephens. The details of the Bond bill I am not
absolutely familiar with, to be perfectly honest. The issue is
always one of you have got your rules in place now, if we give
enough leeway to our local governments and others, including
myself, then we will begin to slip back from our opportunity to
achieve conformity and meet the Clean Air Act standards.
Senator Inhofe. So you do not oppose the Bond bill at this
time?
Mr. Stephens. Not at this point in time. I would have to
read it in more detail.
Senator Inhofe. And the other two of you, how do you stand
on the Bond bill?
Mr. Pisano. At this point in time, grandfathering is not
our issue. The issue, as we see it, is what is the relationship
between transportation projects and programming and what
incentives does it provide to encourage the region to get to
attainment. Attainment is our issue. And all the help that we
need throughout the Federal establishment and with our State to
keep that attainment progress is the fundamental issue, and
that is what we would encourage Congress to keep its eye on.
The other issue is we have got to have the Federal
Government play its fair share, and that's the area that we
would encourage this committee to look at, that and this timing
issue on plans.
But the grandfathering hasn't been, nor do we want it to
be, an issue in our regions, Senator.
Senator Inhofe. How about you, Mr. Snow?
Mr. Snow. Grandfathering is not an issue, either. However,
we would support the Bond bill because, just as an example, in
1995, Clark County submitted our State Implementation Plan to
the Environmental Protection Agency, and to date we have not
heard back from the EPA on whether they are going to approve
our State Implementation Plan. If we can't get the EPA to act
on a very timely basis, at least on emission budgets associated
with the State Implementation Plan, then definitely we would
support the Bond bill because of the grandfathering issue.
Senator Inhofe. I'm sure I speak for Senator Voinovich, as
well as myself, when I ask you to submit to us ideas, things
that from your perspective, that would be helpful to you on all
these subjects that we've been talking about.
I do have further questions, but I will submit them for the
record, as well as questions for the third panel, in that I
have another committee that I have to go to.
Senator Lautenberg?
Senator Lautenberg. Thanks very much, Mr. Temporary
Chairman.
I want to point out that grandfathering is a big issue with
me. I have six little grandchildren----
[Laughter.]
Senator Inhofe. Senator Lautenberg, if you would yield, I
have seven.
[Laughter.]
Senator Lautenberg. I have seven on the way.
[Laughter.]
Senator Inhofe. I'll have eight in October.
Senator Lautenberg. I want to point out that the reason I
say that has a modicum of seriousness about it, and that is
that sometimes a highway project can ease things, but the
consequence of less than a satisfactory ambient air standard
can make a heck of a difference.
Mr. Pisano just happened to pull up some statistics from a
study done in the Los Angeles area, and your State is so big
that I didn't know if your particular district includes L.A.
itself?
Mr. Pisano. Yes, it does, Senator. I noted that it includes
the South Coast Air Basin.
Senator Lautenberg. Anyway, what is said--and this is a
report that was developed by the minority staff and the House
Committee on Government Reform, done in March--they said that
the risk of getting cancer from air toxics in the Los Angeles
area, and I'm not precise on what it is, most conservative, is
426 persons in a million. The goal of the Clean Air Act is one
person in a million. Sixty percent of the Los Angeles air
emissions come from, they say, cars and trucks. I don't know
whether that's a familiar number to you.
But the fact is that it is a consequence of some
significance. My friend, Senator Inhofe, talked about the four
over there, and I felt a little left out, having served in
Government and so forth, and my service was perhaps of no
consequence. I ran one of America's largest successful
companies before I came here, but business sometimes doesn't
relate to things of importance as Government does.
But the fact of the matter is that as we plan these
projects--and I'm looking at Senator Bond's bill very
carefully; I have respect for his knowledge and his experience.
I am probably not going to be supporting it because I'm
concerned about what constitutes ``appropriate conformity.''
But as we plan these projects, we have to look out a pretty
good length of time, a long timeline.
Pat Moynihan--Professor Moynihan, realistically--from this
committee, not here today, makes comments frequently about what
the consequence of the National Highway System development in
the 1950's meant to our society. And I characterize, rather
than quote, what he said, and that is that it helped the
abandonment of the cities, that people left the cities because
they didn't want the wear and tear and the cost, etc. So they
got out of town.
Well, part of what we have to do--and this is not a hearing
on transportation policy per se, but it certainly has to
include that--when we look out at the timeline necessary, I
know it does, Mr. Carlson, get to be kind of a nuisance when
you're in the middle of getting things done. You used the term
``stop and start.'' Unfortunately, this is a dynamic that we're
working with, and we learn things all the time.
So how do we ensure that the projects that we're doing
today--in Atlanta, Mr. Stephens, in my old days I used to have
a nice operation down there called ADP, near the river, and we
do a lot of business around the country, in the Los Angeles
area as well--how do we ensure that the planning is
sufficiently developed that it would include the long-range
implications of the air quality requirements at the same time
as we do our planning?
Mr. Pisano. Senator, if I might address that, I noted that
the conformity plus the financial constraints plus the 16
factors transformed transportation decisionmaking in our
region. We've developed performance objectives for safety,
Senator Bond; we've developed performance objectives for air
quality, Senator Lautenberg; mobility, etc., and also for
environmental justice. Those objectives are what we evaluate
every single project, program, and strategy against within our
Basin. Finally, we ascertain whether or not we can afford it
within the time period.
We make those tradeoffs over a 20-year time period on air
quality, health impacts, and safety from transportation. And we
are moving forward the most efficient and effective strategy
within our Basin over a 20-year time period.
The laws you've created, I want to commend you for. You
have sent the right signals to us. You have also given us the
flexibility and the right incentives to put them together. Now
the question is, we need continued Federal involvement, and I
want to continue to emphasize that we need the Federal
Government; not just fund grants from public works, but we need
the active engagement of Federal agencies, and the actions and
emissions that you control federally, for us to keep on track
for those--not only the transportation plans, but air quality.
Senator Lautenberg. Mr. Chairman, I've run over my time.
Senator Chafee [resuming the Chair]. Senator Bond?
Senator Bond. Thank you very much, Mr. Chairman. Let me ask
unanimous consent to incorporate in the record the statements
of support for S. 1053, to which I referred earlier.
Senator Chafee. Fine.
Senator Bond. I want to thank this panel. There's nothing
like having some experts who are working on this subject to
give us their practical views, and that's very helpful.
For Mr. Stephens, I'll tell you, I'll give you a copy of
the bill and you can take it home and read it.
Mr. Stephens. All right.
Senator Bond. It says, ``Notwithstanding any other
provisions of this section, the following provisions of title
40, Code of Federal Regulations, as in effect on March 1, 1999,
are incorporated in the act.'' It cites section 93 where they
have the grandfathering.
So it's not brain surgery. It's a start, and what you all
are giving us is designed to help us flesh out--or perhaps
flush out--what we need to do to resolve these problems.
I ask my staff to put up a couple of charts from the
Federal Highway Administration. They were mind-boggling when I
first looked at them.
I understand this is a fair representation of the time
process for getting approval of a highway project, potentially
running out to 15 years; is that--Mr. Carlson?
Mr. Carlson. I'd answer that. In an urbanized area, that's
probably pretty close. In rural areas, it's not quite that
stringent.
Senator Bond. All right. And so under the grandfathering
provision as it was in effect prior to March 2, you had all
these steps; you had up to 8 years, culminating not only in a
TIP and a STIP, but complete the NEPA process and all, and at
that point grandfathering could occur. Then you go to final
design, and right away, acquisition, authorization for
construction, PSE approval, highway funding grant. In other
words, you're 8 years down the line, and at that point the rule
which EPA discussed and had comment on and which they said made
sense and protected the environment, then allows you to
continue and get the right-of-way acquisition done, if you've
been in conformity up to that point. Is that correct?
Mr. Carlson. That's correct.
Senator Bond. Now, Mr. Stephens, if I understand you right,
you're saying that if that court decision hadn't come along and
said that somewhere after Step 5 in Atlanta, that because
situations had changed, even though you previously had the
approval of EPA, if that decision hadn't come along and stopped
the projects, Atlanta and Georgia would have stopped their
efforts to comply. They would have been slothful, neglectful,
and irretrievably hard-headed, and would not have moved
forward. Is that your characterization?
Mr. Stephens. Senator, that's not exactly how I would
characterize the situation.
[Laughter.]
Mr. Stephens. What I would say to you is that they would
have used other determinants for decisions, other than clean
air and congestion.
Senator Bond. Are there other enforcement mechanisms to
enforce clean air? Are there other sanctions available to EPA
that can be imposed on the area, had you been able to continue
with those grandfathered projects?
Mr. Stephens. Not that I'm aware of at this point in time,
Senator. The ultimate sanction on the community, my assumption
would be, is failure. In an economic business sense, when
people find it not very attractive in terms of the quality of
life to relocate their businesses and families into your area,
that becomes the ultimate measurement of success or failure.
But sometimes you're way down the line before that one becomes
a reality or before it hits home. In Atlanta, it took us 20
years to hit that point.
Senator Bond. I understand Mr. Pisano said that you need
the continued encouragement. I might ask Mr. Snow and Mr.
Carlson, are your areas and your States going to continue to
work toward compliance should the grandfathering be
reauthorized--not mandated, reauthorized--as I propose in S.
1053? Would you continue in Kansas to try to clean up the air
that you're blowing into Missouri?
Mr. Carlson. Absolutely, Senator.
Senator Bond. Boy, that's a relief.
[Laughter.]
Senator Bond. Mr. Snow?
Mr. Snow. Yes, Senator, that's correct. And I also might
add that there are linkages due to the multimedia regulatory
authority of the EPA. If we have a problem with air, it can
indirectly bleed over into problems with water in terms of
approval for growth going forward. So there are other
sanctions. ``Sanctions'' is probably the incorrect word, but
there are other ways that we would need to be responsible.
Senator Bond. Mr. Chairman, I thank this panel. I express
my appreciation to all the panels. I apologize that I have an
11:30 appointment; I didn't realize we were going to have so
much useful information, and I will look forward to seeing the
testimony of Mr. Replogle and Mr. Kinstlinger, and I will have
questions for the record. I very much appreciate the
participation of the panels.
Senator Chafee. All right, fine. I would like to join in
thanking the panel. Thank you very much for being here.
Mr. Pisano, you're the long-distance traveler, I believe,
so we particularly appreciate your being here.
Mr. Pisano. Thank you, Mr. Chairman.
Senator Chafee. Now let's have Mr. Replogle and Mr.
Kinstlinger come forward.
All right, Mr. Replogle, you are the man that argued the
case?
STATEMENT OF MICHAEL REPLOGLE, FEDERAL TRANSPORTATION DIRECTOR,
ENVIRONMENTAL DEFENSE FUND
Mr. Replogle. In response to your question, Mr. Chairman,
no, I'm not the attorney who argued the March 2, 1999 U.S.
Court of Appeals case. The man who argued the case is Robert
Yuhnke, and he has stepped out of the room and will be joining
us momentarily.
Senator Chafee. All right, why don't you proceed?
Mr. Replogle. My name is Michael Replogle, and I am Federal
Transportation Director of the Environmental Defense Fund.
I would like to particularly address the issue that Senator
Lautenberg raised about what went wrong in Atlanta. I think
Atlanta clearly shows why the regulations that were overturned
by the court in the March 2 decision weren't working and
shouldn't be reinstated.
The rule that was struck down by the court allowed projects
that were planned in many cases years ago to receive new
funding agreements, long after it was clear that those projects
and the larger systems they comprise would exacerbate
violations of the air quality standards. Nearly all of the
available resources in some metropolitan areas like Atlanta
were committed to projects that would worsen traffic growth,
pollution, and sprawl, while leaving no resources available for
air quality improvement projects at a time when the region was
facing a serious health crisis due to air quality violations.
In Atlanta, as you've heard several previous speakers say,
the Clean Air Act conformity process and this March 2 court
decision have encouraged better regional problem-solving. This
is also the region of America that has been most affected by
this March 2 court decision, with nearly $700 million worth of
projects affected. It is the area that is expected to be in a
conformity lapse longer than any other area. It is the area
that, while being exposed to these conformity lapse problems
longer and deeper than other areas, is in fact gaining the
greatest benefit from the March 2 court decision and the new
guidance that DOT and EPA have put forth in the wake of that.
Georgia officials knew back in 1995 that their
transportation plan for Atlanta couldn't conform with the
emission budget in the State's own Air Quality Plan for 1999.
There were many solutions available to the region to solve
their conformity problem. These include adopting cleaner fuels
in vehicles; developing better vehicle inspection and
maintenance; looking at smarter growth incentives and
strategies; looking at transportation investments that could
cut traffic growth and expand transportation choices.
They also include strategies to reallocate the emission
budget in the State Implementation Plan to make up for more
emissions growth on the transportation side by doing more to
clean up old, dirty power plants, so that the total amount of
air pollution would not exceed the amount that the region has
the capacity to absorb without compromising public health.
Instead of pursuing these measures that were available and
that have worked in many other metropolitan areas,
decisionmakers in Atlanta chose to pursue a loophole. Though
half of Atlanta's air pollution comes from car and truck
tailpipes, the now-overturned EPA regulations allowed the
approval of nearly $1 billion worth of new sprawl and traffic-
inducing roads, even after the transportation plan was found to
grossly exceed the emission limits set in the Georgia plan for
1999.
The poster here to my right shows the location of those
grandfathered road projects in metropolitan Atlanta. It shows
that a doughnut of investment in roads at the outer periphery
of the metropolitan area, in places where new road capacity
will clearly induce a great amount of new sprawl development
that will exacerbate both the amount of traffic and the amount
of air pollution.
In December 1997, the EPA Regional Administrator wrote to
USDOT saying that there were many of these projects that should
not be approved, they had not been approved, and that these
issues needed to be more fully resolved. This whole conflict
over project grandfathering escalated to the Council on
Environmental Quality in the White House.
With 6 years' worth of road construction activity exempted
through the loophole that the Bond bill would reopen, Georgia
roadbuilders were essentially trying to stick the bill for
pollution cleanup onto everyone else. It was Atlanta's
reputation for a high quality of life that took a hit instead.
The massive roadbuilding effort in Atlanta, permitted by the
rules that have now been thrown out, didn't solve the traffic
problems or the air quality problems; instead, it brought the
longest commutes in America and increased air pollution
violations. The number of air pollution violations has been
going up in Atlanta, despite the cleaner fuels and vehicle
techologies.
Atlanta business and civic leaders, however, got a wakeup
call this year and established a new regional transportation
authority to better manage growth, transportation, and air
pollution. This is really a Clean Air Act conformity success
story in the making. This is working the way that the framers
of the law intended. It is helped by the March 2 court ruling.
Last month, on June 18th, Federal, Georgia, and Atlanta
officials signed an agreement, enforceable in court,
prohibiting funds for grandfathered road projects until the
region has a new transportation plan that conforms with Clean
Air Act requirements. This would not be affected by the Bond
bill.
Regional authorities hope to adopt a new conforming plan
next March, and construction continues on several hundred
million dollars' worth of roads that had been approved prior to
the ruling.
This ruling is bringing Atlanta-area residents better
transportation choices and cleaner air. Since March, several
hundred million dollars has been redirected from highway
projects at the edge of the region into projects that address
pollution and transportation problems, including buying clean
buses, building park-and-ride centers, HOV lanes, smart traffic
signals, traveler information systems, reconstructed bridges
and intersections, as well as highway safety projects. All of
these are, in fact, able to go forward during the conformity
lapse.
We think DOT and EPA have issued a workable legal guidance
implementing this court ruling.
The number of areas of the country adversely affected with
delays by the court ruling is shrinking, and it is a changing
list as areas come in and out, mostly staying on the list for
only a matter of several months while interagency consultation
works out the problems.
DOT and EPA are, appropriately, trying to head off future
problems, before they occur. Thanks to this ruling in March,
the costs of pollution cleanup from traffic growth won't
automatically be thrown onto utilities, small businesses, and
others, by locking in these commitments to pollution-increasing
road projects many years in advance of when the funding for
those projects is actually available, as happened here in
Atlanta.
Senator Chafee. Mr. Replogle, your time is going on a
little bit. Why don't you summarize the last part of your
statement?
Mr. Replogle. Let me just note that this issue about the
timing mismatch that has been raised by some of the other
witnesses is really an issue not about timing. It is an issue
about how much pollution areas can handle without compromising
human health. Transportation plan emission budgets, which are
established in State air quality plans, can be set up in ways
so that there are opportunities for those emissions to grow.
There is a capacity in the current system for transportation
agencies to mitigate air pollution increases due to growth with
offsetting measures. I would note, for example, in Denver,
where pollution growth that caused them to break their budget
was offset by developing cleaner street-sweeping programs to
capture fugitive road dust.
So there are ways of solving these problems, and we would
urge you not to adopt the Bond legislation but to help assure
that current laws are effectively implemented.
Thank you.
Senator Chafee. Thank you.
Mr. Kinstlinger?
STATEMENT OF JACK KINSTLINGER, VICE CHAIRMAN, AMERICAN ROAD AND
TRANSPORTATION BUILDERS ASSOCIATION
Mr. Kinstlinger. Good morning, Mr. Chairman and members of
the committee. I am Jack Kinstlinger, Chairman of the Board of
KCI Technologies, a transportation engineering firm
headquartered in Maryland. Previously I served as State Highway
Director in Colorado and Deputy Secretary for the Pennsylvania
DOT. But today I am here representing the American Road and
Transportation Builders Association.
We appreciate this opportunity to discuss the Clean Air
Act, and I respectfully ask that our full testimony and
graphics be made a part of the hearing record.
Senator Chafee. That will be done.
Mr. Kinstlinger. At the outset I want you to know that we
share your interest in assuring that all Americans breathe
clean air. We are not here to suggest that the Clean Air Act
needs radical overhaul. We would, however, like to suggest some
badly needed fine-tuning that we don't believe will compromise
public health. To the contrary, the suggestions that we offer
will help prevent injuries and save lives as they speed up
project delivery of environmentally sound projects.
We have five concerns with the conformity process.
First of all, the process is causing unnecessary delays in
highway projects that have already passed every environmental
test, and delaying highway improvements hurts and injures
people. According to USDOT research, poor road conditions or
obsolete road and bridge alignments are a factor in 12,000
highway-related deaths each year. That's four times the number
of Americans killed in accidental fires, and a third more than
die annually of asthma and bronchitis combined. One can only
wonder how many more people need to die needlessly because
congested road conditions impede emergency vehicles, trying to
get to the hospital, or fire engines trying to get to the site
of a fire. These also are public health issues, just as real as
clean air, and they should not be ignored.
No. 2, the rationale behind the conformity process has been
demonstrated over the past 9 years to be faulty. The
infrastructure mix between highways and mass transit in the
State or region has relatively little impact on air quality,
less than 1 or 2 percent, regardless of the investment choice
made. What I am saying is that if a region decides to build all
transit, or all highways, it wouldn't modify the level of
pollution by more than 3 or 4 percent. Cleaner fuels, on the
other hand, cleaner engines, and vehicle inspection can reduce
pollutant levels by 20 to 100 percent.
No. 3, conformity needs to be redefined. Federal laws
should not be forcing a tradeoff between transportation
improvements and non-transportation energy use and business
activity. The conformity process is doing that.
No. 4, the computer modelling used to project mobile source
emissions provides fantasy numbers. Unfortunately, EPA
transportation conformity determinations are based on these
model outputs. Let me focus attention on this point.
The conformity process requires State and local governments
to make mobile source emission projections up to 20 years in
the future. This is absurd. No one knows with certainty what
State and local economies will be 3 years from now, much less
12 or 20 years. We can guess, but we don't know what
demographics are going to be like in 2020. These, however, are
the type of inputs that go into the modelling.
Compounding the problem, the models don't account for new,
cleaner automotive and motor fuel technologies that we know are
on the horizon and that are going to have major positive
impacts. From the years that I served as a public official, I
know that the modelling itself has an error margin of 20 to 50
percent. If you were to ask EPA or DOT to compare the 1990
pollution levels projected by these models in 1970 or 1980,
compared to the actual pollutant levels, you will see errors of
40 to 50 to 60 percent. This is a modelling exercise of future
projections, which I think is foolish. And to actually stop
projects based on the results of this fantasy projection makes
no sense.
These problems could be meaningfully addressed if the act
was fine-tuned to give State and local governments a 5 to 10
percent margin of error allowance on the mobile source emission
projections. This would acknowledge, without compromising
public health from an air quality perspective, the lack of
precision in the conformity modelling. With this change we
would not be talking about conformity failures; they would be
few. Needed highway and transit improvement projects would not
be needlessly delayed and stopped. Air quality improvements
from the transportation sector would continue at the same rate
they would have otherwise.
Our fifth and last concern is a comment on the March 2
decision in Environmental Defense Fund v. EPA. This case
eliminated the grandfathering rule, which was a common-sense
interpretation of the Clean Air Act that allowed highway and
transit projects that had met all environmental tests once to
go forward, even if the area that they are located in
experiences a subsequent lapse in conformity. It's not
realistic to require a project to keep on being tested and
evaluated over and over again.
This ruling does nothing to improve air quality. It does,
however, delay projects, which we believe was the intent of the
EDF. S. 1053, which has been introduced by Senator Bond, would
restore the EPA grandfathering rule, which struck a balance
between the need for environmental protection and the need for
finality in project decisionmaking.
One thing we must bear in mind is the fact that air has
been significantly improved since 1970. From 1970 to 1996,
vehicle miles of travel have gone up by 125 percent. Highway
emissions and carbon monoxide have gone down 40 percent. VOC
highway emissions have gone down 58 percent, NOx emissions have
gone down 3 percent, and particulate matter 38 percent, and
lead emissions 100 percent. So we have seen a significant
cleanup of the air, despite a rapid increase in VMT, and that's
because we have cleaner engines, we have cleaner fuel, and we
have vehicle inspections. It has very little to do with the
amount of road improvements or transit improvements that the
regions are planning.
In conclusion, the good news is that the conventional view
that there has not been much progress on air quality, that
increased auto use is the culprit, and that controlling auto
use is the solution, is wrong, and the figures show that. EPA
data clearly shows that the Nation's air is much cleaner today
than it was in 1970, when the Clean Air Act was adopted, and
the transportation sector has been at the forefront of this
success story. As I mentioned, despite a 125 percent increase
in motor vehicle travel in the U.S. since 1970, there has been
a real and significant reduction in every transportation-
related emission. These reductions will continue well into the
future as ever-cleaner vehicles replace older and dirtier ones,
and the proposed Tier II motor vehicle emission standards on
gasoline, and sulfur control requirements, both of which ARTBA
supports, come on line. The fact is that Federal transportation
conformity regulations have had very little to do with these
dramatic improvements in air quality. Conformity needs to be
revisited by the Congress, and that concludes my remarks. I
thank you for your attention.
Senator Chafee. Have you met Mr. Replogle, next to you?
[Laughter.]
Mr. Kinstlinger. I just did.
[Laughter.]
Mr. Kinstlinger. We obviously don't agree on everything.
Senator Lautenberg. I'm going to leave, but I would thank
Mr. Kinstlinger for his confirmation of the fact that when we
first developed clean air legislation, when we first developed
other environmental legislation, that the results that we see
are in place.
Mr. Kinstlinger. Are very encouraging.
Senator Chafee. All right, fine.
Mr. Replogle, what do you have to say about what Mr.
Kinstlinger has to say?
Mr. Replogle. Well, Mr. Chairman, I have prepared some
questions and answers which I would like to enter into the
record. They deal with some of the issues that have been raised
in Mr. Kinstlinger's testimony.
In summary, we're still looking at 30 to 50 percent of the
pollution that forms smog, and that threatens America's health,
and a major portion of the pollution of small particles which
also injures or kills thousands of Americans every year, comes
from cars and trucks. While we are making great progress in
cleaning up the air, the growth in the amount of traffic
outpaces the improvements in technology for cleaner vehicles
and cleaner fuels, and particularly in fast-growing areas. We
have some areas, like Atlanta and Las Vegas, where the number
of miles driven every year is growing by 4.5 to 13 percent a
year, and that's simply outdoing what we need to do to get to
clean air.
Technology alone won't solve these problems. We need to pay
attention to the effects of different kinds of transportation
investments and incentives and how that affects traffic. Over
the 20-year horizon of the long-range plan, there are a lot of
studies showing that we can reduce the amount of traffic growth
while accommodating the same amount of job and housing and
population growth, with 10 to 20 or 25 percent less miles
traveled and hours driven in our cars, and getting us a higher
quality of life and more livable communities in the process.
So this is a very cheap way of helping to contribute to
solving air pollution problems that conformity helps our
regions consider.
The issue of models is another one that Mr. Kinstlinger
brought up. We've gotten significantly better at understanding
how the effects of different transportation plans and programs
will translate into transportation system performance and the
amount of emissions. Doing future forecasts and models is an
essential foundation to planning for the future attainment of
air quality. If we don't use models, then there's no way for us
to manage these systems. We're getting better at it, and I
think we're learning over time. As we have moved in the last 18
months to the system originally intended in 1990 with the Clean
Air Act Amendments, setting emission budgets for attainment,
making sure that the transportation plans fit with those, the
``slop'' factor in those models becomes a much less potent
issue than it was under the transition rules of the law.
Senator Chafee. Is there anyplace you can cite where they
have made an aggressive effort to remove extra-polluting
vehicles from the road--old clunkers, if you want to use that
term? Who has done that, and have they done it successfully?
Mr. Replogle. I'm not completely up on how all of these
programs have played out, but I know that in Southern
California and in Chicago there have been programs that have
had some success in creating tradeable emission credits to help
people meet their clean air goals.
Senator Chafee. I see Mr. Pisano is still back there. Have
you done that at all?
Mr. Pisano. Senator, we have the replacement of older
vehicles as a transportation control measure. And then the
State Air Resources Control Board established the disposal of
older vehicles as a partial offset to some of the trucking
regulations.
Senator Chafee. OK, fine.
Well, I want to thank you both for your testimony. It was
very clear. I appreciate your having been here. You have been
helpful to us. Thank you very much.
[Whereupon, at 12:20 p.m., the committee was adjourned, to
reconvene at the call of the Chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. Barbara Boxer, U.S. Senator from the State of
California
Mr. Chairman, thank you for holding this hearing today to consider
the Clean Air Act's (CAA) conformity program.
In the wake of the enactment of TEA 21 and its $217 billion in new
transportation spending, a strong CAA conformity program is needed now
more than ever. The conformity program helps ensure that the nation's
transportation needs are satisfied without sacrificing our health and
the air we breathe.
As you know, Mr. Chairman, California suffers from some of the most
serious air quality problems in the nation. Approximately 30 million
Californian's live in counties that don't meet the CAA's health-based
air standards. The Los Angeles basin, in fact, has the worst air
quality in the nation.
The smog and soot that plagues the L.A region may have serious
health consequences for the approximately 15 million people that live
there.
A recent study, for example, found that air pollution in the L.A.
region may impair children's long-term breathing capacity, leaving them
vulnerable to respiratory disease and underdeveloped lungs. Asthma,
which is exacerbated by air pollution, is also on the rise.
Against these air quality concerns, the transportation demands of
California's burgeoning population are tremendous. From 1992 to 1997,
the use of California's roads and highways climbed 40 percent. During a
similar time period, traffic congestion in our urban areas has
increased substantially--32 percent in the Bay Area, 29 percent in
L.A., and 58 percent in San Diego.
And there is no end to these transportation demands in sight.
California's current population of approximately 32 million is
expected to rise to 50 million by the year 2025. To put that increase
in perspective, it will be as if the entire State of New York picked up
and moved to California.
Without careful transportation planning, the demands created by
this population surge could overwhelm our ability to keep our air
clean.
In 1977, Congress had the foresight to recognize that states like
California would face serious challenges in the areas of air quality
and transportation planning, and decided to link the two by enacting
the CAA conformity program. Congress again recognized the importance of
the program by substantially strengthening the program in the 1990
amendments to the CAA.
__________
Statement of Robert Perciasepe, Assistant Administrator, Office of Air
and Radiation, Environmental Protection Agency
Thank you, Mr. Chairman and Members of the Committee, for the
invitation to appear here today to discuss transportation conformity.
As you know, conformity in its current form was required by Congress in
the Clean Air Act Amendments of 1990. Conformity requires areas that
have poor air quality now or had it in the past to examine the long-
term air quality impacts of their transportation system and ensure that
it is compatible with clean air goals. These areas must assess the
impacts of growth and decide how to manage it. Anticipating the future
impact of today's decisions results in better public policy. Just as
knowing the nutritional content of foods allows each person to choose a
diet that balances satisfaction and health, knowing the air quality
impacts of transportation decisions allows each area to choose
transportation projects that balance growth with the health of the
community.
Although our air quality has been improving, many cities in the
United States still suffer unhealthy levels of ozone, more commonly
known as smog. Nearly 100 million people live in the 38 U.S. areas that
are still not attaining the 1-hour ozone standard. And despite the
significant advances in producing cleaner cars and cleaner fuels, cars
and trucks still account for almost half of the overall emissions in
urban areas because we're driving more miles every year. We've gone
from just over one trillion vehicle miles per year in 1970 to over two
trillion miles per year today. These trends are continuing the number
of vehicle miles traveled has been steadily increasing about 2 percent
every year, and is as high as 5 percent in the fast-growing cities in
the south and west.
The growth in vehicle traffic not only worsens air quality, but
also causes severe congestion. This leads to increased travel time for
motorists and slower distribution of goods throughout our metropolitan
regions. Many people think that traffic congestion can be relieved by
adding more road capacity: either building more roads or widening the
existing ones. As we have discovered, this is not always the case. In
areas with poor air quality, the question of how to improve traffic
flow in a way that will not exacerbate air pollution must be faced
head-on.
Conformity requires state and local governments and the public to
consider the air quality impacts of the planned transportation system
as a whole and over the long term before transportation plans and
projects are implemented. Billions of dollars every year are spent on
developing and maintaining our transportation systems. Conformity helps
ensure that these dollars are not spent in a way that makes air quality
worse. Conformity requires areas to consider the impacts of their
decisions up front.
Though conformity was included in the 1977 Clean Air Act, it wasn't
clearly defined until the 1990 Clean Air Act amendments. The amendments
strengthened and clarified the conformity requirement and delegated to
the Administrator of EPA the responsibility for writing a regulation to
establish the criteria and procedures for conformity. The Department of
Transportation (DOT) must concur with all conformity rules. We
published the first rule in November 1993. We streamlined and clarified
rule in August 1997, based on extensive discussions with state and
local air pollution officials, transportation planners, and other
stakeholders, as well as the experience of both DOT and EPA employees
in the field. To date, we believe conformity has been successful in
preventing transportation planning decisions from contributing to new
violations.
Conformity works by reinforcing a state's air quality plan and
keeping areas on track in meeting their air quality goals. A state's
air quality plan establishes emissions ceilings or budgets for the
various types of sources that make air pollution. Conformity makes
state and local agencies accountable for keeping an area's total motor
vehicle emissions within the budgets established by the air quality
plan. Communities have choices about how to address their
transportation and air quality needs. An area can choose to build
transportation projects that increase emissions, as long as the net
effect of the total system is consistent with the state air plan. Most
areas have been able to continue adding to their transportation network
and still stay within their clean air budgets.
In several areas, conformity has been at the core of discussions
surrounding growth, congestion, air quality, and quality of life. In
Atlanta, Georgia, one of the fastest growing areas in the country, the
impacts of growth have been front and center for everyone from
residents to employers to the Governor's office. Since 1996, the
Atlanta Journal-Constitution has been featuring editorials and front
page articles about conformity, traffic, air quality, and growth.
Recent articles in Atlanta have focused on the concerns of business and
political leaders, worried that Atlanta may no longer be competitive
with other American cities in promoting economic opportunities because
of its traffic congestion and air quality problems.
According to a 1999 Georgia State University report, if Atlanta
develops the reputation as a ``dirty city,'' the region could lose
thousands of jobs and suffer economic losses in the billions of
dollars. Atlanta's inability to conform its transportation system to
its air quality goals, and the ensuing public debate over growth in
Atlanta, has produced a shift in the way both government and
corporations do business.
Partly due to issues highlighted by the conformity process, Georgia
has developed new institutional processes for solving transportation
and air quality problems. Earlier this year Georgia Governor Roy Barnes
proposed and the legislature created a regional transportation super-
agency for urban areas of the state. The Georgia Regional
Transportation Authority is a 15-member board that has authority to
oversee transportation and air quality planning, and to develop
commuter rail, light rail, and other mass transit options.
Also, Atlanta-based telecommunications firm Bell South announced
early this year that it is consolidating 13,000 employees from suburban
offices to three new business centers located in the city along a
transit line--``a major corporate effort to directly address Atlanta's
traffic congestion and pollution,'' according to the Atlanta Journal-
Constitution.
Like Atlanta, Denver has also grappled with the issues of growth
and air quality. In 1994, Denver could not demonstrate how its
transportation plan would meet air quality goals, so the Colorado
legislature decided to revise the goals and increase the level of
permissible particulate matter. This action resulted in widespread
public debate about the health effects of increased particulate matter
and how Denver should grow. Subsequently, the city adopted measures
such as reduced street sanding and sweeping to decrease particulate
matter in the short term. In the longer term, the public debate about
growth led to the decision to establish a growth boundary, focusing
growth in the core area.
Conformity has been important in large, fast growing areas, but
also in smaller areas as well. Conformity is a key reason that the Cape
Cod Commission in Massachusetts added air quality to its Regional
Policy Plan as an issue to be considered in guiding regional growth.
Conformity links transportation planning with air quality planning.
Before conformity was required, these two planning processes were done
separately, yet both transportation and air quality planners had to
make assumptions about future growth and future transportation
decisions. With conformity, air quality and transportation planning are
coordinated through consultation. Each process informs the other, and
both have improved as a result of the consultation that the conformity
rule requires. Because of conformity's consultation requirement, the
quality of information that planners have to work with has improved,
the relationship between air quality and transportation planners have
improved, and modeling has improved. We know from Harvard's recent
conformity study that consultation has led to better working
relationships among transportation and air quality planners, as well as
better understanding and appreciation of the goals and challenges faced
by each discipline.
Conformity has also improved transportation and air quality
modeling by improving the data available, making the same data
available to both sets of planners, and better integrating
transportation and air quality analyses. Improvements in consultation
and modeling seem to have had a synergistic effect, because more
interagency consultation has led to improved confidence in modeling
results. According to the Harvard conformity study, conformity related
improvements in planning methods are valuable not only for
consideration of air quality improvement programs but also for other
planning purposes.
Conformity has had an impact on the development of both
transportation and air quality plans. It has led some communities to
reconsider the timetables for and scale of some transportation
projects, particularly in high growth areas such as Atlanta, Denver,
and Houston.
Charlotte, North Carolina also grappled with meeting conformity
and, as a result, changed its transportation plan with broad public
support. North Carolina's population growth is twice the national
average, and the amount of vehicle miles driven per year is growing
three to five times faster than the population is growing. In 1997,
Charlotte couldn't pass the conformity tests, and Charlotte's
Department of Transportation realized it needed an alternative to
continued congestion. They created a transit and land use plan. Local
officials and the community overwhelmingly supported the plan because
it addressed quality of life issues for the city. Voters in Charlotte
passed a referendum to raise $50 million per year for the new transit
plan. By adopting this plan, the city was able to meet conformity and
will have a transportation system that preserves healthy air.
Conformity has also had an impact on the other half of the process,
that of air quality planning. Having to demonstrate conformity prompted
some areas to adjust or amend their air quality plans to accommodate
more growth in vehicle travel. Areas must demonstrate conformity for
the entire 20-year timeframe of the transportation plan, which has been
challenging in some high growth areas. However, EPA believes that
analyzing the entire 20-year transportation planning horizon is a
fundamental tool for achieving the goals of the Clean Air Act. Congress
clearly intended that areas maintain healthy air even after they have
attained the air quality standards. Considering the impacts for the
entire length of the transportation plan ensures that long-term motor
vehicle emissions stay at or below attainment levels and public health
is protected. EPA will assist areas that want to revise their air
quality plans to more directly address future transportation growth.
Some areas, such as Denver, Salt Lake, and Portland have extended their
air quality planning process to take the 20-year length of the
transportation plan into account. These areas are looking farther out
into the future to ensure their air quality will still be healthy even
as they grow, adding population, cars, and more highways.
Conformity has prompted areas to adopt other projects and programs
that have an air quality benefit, such as transportation control
measures (TCMs); zoning and other land use measures; additional mobile
source emissions control measures, such as inspection/maintenance
programs or clean fuel programs; and stationary source emissions
control measures. Conformity also ensures that transportation actions
which are part of a clean air plan get the funding they need, so that
planning for air quality doesn't just happen on paper.
I would now like to address the recent decision by the Court of
Appeals for the D.C. Circuit regarding a lawsuit that the Environmental
Defense Fund had filed against EPA. As a result of the court's decision
in March, certain features of how conformity is implemented had to
change. However, we did not appeal the court's decision because we've
developed a workable approach with DOT and the Department of Justice
that minimizes the impact to areas as they implement the court's
decision, and that is legally defensible. In addition, we believe that
the court decision is more protective of public health than our initial
regulation.
For example, the court addressed what transportation projects can
proceed when an area cannot demonstrate conformity. When an area fails
its conformity tests, it cannot proceed with new projects until it
fixes the problem, but construction projects that have already been
funded can continue. In our 1993 conformity rule, projects were
``grandfathered'' once they had received National Environmental Policy
Act (NEPA) approval. At that time, we believed that grandfathering at
the point of NEPA approval best balanced public health with
transportation goals. Unfortunately, since 1997, it has become clear
that this grandfathering provision could allow a large number of
transportation projects to advance even though more recent planning
projections may have been developed.
The approach that we developed in response to the court decision
better protects air quality. Under the court decision, a project can
continue if DOT has made a commitment to fund it, that is, has
authorized it for construction. The step authorizing construction comes
after NEPA approval. With this interpretation, there is still a point
where a project is ``safe'' from disruption by air quality concerns.
Projects far along in the process won't be halted. But, by proceeding
only with those projects that have been funded for construction, we
avoid creating a large pipeline of projects that could be built even
when we know that they may contribute to an air quality problem and
further prevent an area from demonstrating conformity.
This change in the former grandfathering provision only affects
those areas that cannot demonstrate conformity. At the present time,
there are only seven such areas, five of which will resolve their
conformity problems in just a few months.
The court's decision also addressed using air quality plans that
have been submitted to EPA, but not yet approved. EPA has taken action
to minimize any short-term disruption to existing conformity
determinations. We have developed a long-term approach that will allow
air quality plans to be used for conformity soon after they are
submitted to EPA.
Along with the Intermodal Surface Transportation Efficiency Act
(ISTEA) and now the Transportation Equity Act for the 21st Century
(TEA-21), conformity has and will be part of a coordinated movement
toward considering the social, economic, energy, and environmental
goals of planning our nation's transportation system. Conformity has a
number of ``good government'' benefits, such as better communication
between air and transportation agencies; better air quality plans and
transportation plans; more informed decisionmaking; opportunities to
inform the public about transportation impacts; and improved public
participation. While the recent court decision called into question
some of the procedures by which we have implemented the conformity
provisions of the Clean Air Act, we have been able to revise those
procedures in a reasonable and measured way. We believe that the
conformity program will continue to be a valuable tool for protecting
public health.
Thank you again for this opportunity to discuss our program with
you. I would be happy to respond to any questions that you may have.
Responses of Robert Perciasepe to Additional Questions from Senator
Lieberman
Question 1: The issue of how best to protect air quality in the
context of transportation spending certainly has been a subject of
significant analysis and debate. Some argue that a major boost in
public transit investments is required, while others maintain that
reducing traffic congestion by expanding roads will help solve the
problem. I believe the answer lies somewhere in the middle.
That said, however, I am interested to know what studies have shown
in terms of whether expanding roads reduces emissions over the long
term. My understanding is that while over the short term, road building
can reduce local pollution by mitigating congestion, over the longer
term bigger roads lead to increased vehicle miles traveled. Essentially
it seems as though the expression ``if you build it they will come'' is
apt. What is your view of whether expanding road building necessarily
leads to reduced pollution?
Response. The question of whether expanded road capacity reduces or
increases vehicle emissions is complicated by many factors. These
factors include the relationship of highway expansion to increases in
vehicle miles of travel (VMT) as well as the effect on specific traffic
dynamics (such as vehicle speed and relative accelerations). In
answering the question of ``whether expanding road building necessarily
leads to reduced pollution,'' we will address the following three
issues: a) research into the effects of highway capacity on increases
in VMT; b) relationships between traffic dynamics, technology
improvements and emissions; and c) the overall policy implications for
relative spending on different ``transportation'' solutions.
A number of recent research efforts have examined the question of
``induced travel,'' that is, how increased highway capacity may lead to
short and long run increases in VMT. In 1995, the Transportation
Research Board released a report entitled ``Expanding Metropolitan
Highway Capacity: Implications for Air Quality and Energy Use.'' This
report clearly identified the behavioral and economic mechanisms that
underlay the theory of induced travel and how transportation facilities
can influence land use decisions. It was, however, inconclusive as to
whether increased highway capacity necessarily leads to increased
emissions and suggested that additional research be conducted in this
area. It also found that current regional travel demand forecasting
methodologies (used for conformity analysis) are generally inadequate
for analyzing the environmental tradeoffs between alternative
transportation investments.
Since then, several research efforts have addressed the relative
impacts of highway capacity expansion on increases in VMT. Two peer-
reviewed studies quantified the relationship between highway capacity
expansion and increased VMT. Hansen & Huang (1997) estimated
relationships between VMT and highway expansion in California and found
significant short-run and long-run effects. Noland (1999) estimated a
number of models using nationwide data and found similar effects to
those of Hansen & Huang. Both studies have estimated that in the short
run a 10 percent increase in highway capacity (measured as lane miles)
will lead to between 3 percent and 6 percent additional VMT. In the
long run (four years or more) a 10 percent increase has been estimated
to lead to between 6 percent and 10 percent additional VMT. Another
paper (currently undergoing peer review) by Noland & Cowart (1999) used
data on 70 urbanized areas and found that in the long run a 10 percent
increase in lane mileage on freeways and arterials results in an 8-10
percent increase in VMT on those facilities.
While additional research is needed, these studies suggest that
expanding highway capacity will increase total vehicle miles of travel
(VMT). These types of effects are being used by the Department of
Transportation (DOT) in its Highway Economics Requirements System
(HERS) to account for traveler responses to reductions in the
generalized cost of travel as a result of increased highway capacity.
The HERS model is used to estimate national highway investment
requirements.
Heanue (1998) analyzed the impact of various induced travel
estimates on total VMT growth. Using data from the Milwaukee area, he
found that between 6 percent and 22 percent of VMT growth is
attributable to induced travel. Noland & Cowart (1999) find that for
the Milwaukee urbanized area about 33 percent of VMT growth is due to
induced travel (assuming trend growth in highway construction,
population growth and per capita income out to 2010). They also
estimate that, on average for all urbanized areas in the sample, growth
in highway capacity accounts for 45 percent of VMT growth on freeways
and arterials. Noland (1999) also estimated that nationwide, highway
capacity contributes between 20-28 percent of VMT growth which can lead
to an additional 43 million metric tons of carbon emissions by the year
2010.
The impact of induced travel on emissions of criteria pollutants is
less clear. Emissions are a function of total VMT and total trips, as
well as specific traffic dynamics (such as speed and relative
accelerations). If expanded highway capacity only leads to greater VMT
with the same traffic dynamics, then it is clear that total emissions
will increase (assuming that there are no changes in vehicle
technology). If, on the other hand, traffic dynamics are changed by
reducing idle times and stop and go traffic, then one may receive some
benefits (although faster speeds may also increase some emissions). If
additional trips are generated, then emissions may be increased due to
additional cold starts (the running time before catalytic converters
become operational). These types of effects tend to be very site
specific so it is hard to generalize what the total impact would be. We
currently know of no studies that have explicitly analyzed these
effects using the latest modeling techniques (the National Cooperative
Highway Research Program is currently in the process of beginning such
a study).
It is clear that historical emissions have been reduced
significantly since 1970 despite significant increases in total VMT.
This is attributable to the success of the Clean Air Act in regulating
tailpipe emissions. For example, CO emissions from mobile sources
decreased by 40 percent; Volatile Organic Compounds (VOC) from mobile
sources decreased by 58 percent; nitrogen oxides (NOx) emissions from
mobile sources decreased by 3 percent; and, particulate matter
(PM10) from mobile sources decreased by 25 percent. It is
likely that implementation of future National Low Emission Vehicles
(NLEV), tier II emissions standards, low sulfur fuels and hybrid
electric vehicles will lead to further reductions in mobile source
emissions.
The debate over building new highway capacity has hinged to a large
degree on whether it is an effective means of reducing congestion. The
relevant questions are: under what circumstances is demand for mobility
best met through added highway capacity, or alternative approaches
(such as travel demand management, transit, or smart growth strategies)
and what the relative environmental costs are. As the question from
Senator Lieberman implies, ``the answer lies somewhere in the middle.''
TEA-21 supports a multi-modal approach to funding and planning
transportation systems to minimize environmental impacts. Local areas
need the information and tools to effectively determine the tradeoffs
between alternative approaches to providing mobility and what the
potential environmental costs of those alternatives might be.
References:
Hansen, Mark and Yuanlin Huang, 1997, ``Road supply and traffic in
California urban areas'' Transportation Research A, 31: 205-218.
Heanue, Kevin, 1998, ``Highway Capacity and Induced Travel: Issues,
Evidence and Implications'', Transportation Research Circular, 481,
Transportation Research Board, National Research Council.
Noland, Robert B., 1999 ``Relationships Between Highway Capacity
and Induced Vehicle Travel'', paper presented at the Annual Meeting of
the Transportation Research Board. Forthcoming in Transportation
Research A.
Noland, Robert B., and William A. Cowart, 1999, ``Analysis of
Metropolitan Highway Capacity and the Growth in Vehicle Miles of
Travel'', accepted for presentation at the 1999 Association of Public
Policy and Management Annual Research Conference, Washington, DC. Also
submitted to the Annual Meeting of the Transportation Research Board.
Transportation Research Board, 1995, Expanding metropolitan
highways: implications for air quality and energy use, Special report
245, National Research Council, National Academy Press, Washington, DC.
Question 2: Transportation planning is a long term process, and the
results of our spending on projects last for decades. What do you feel
is the appropriate timeframe for evaluating transportation plans in the
context of conforming with air quality objectives?
Response. The current conformity rule requires conformity to be
demonstrated over the 20-year timeframe of the transportation plan. The
Clean Air Act (CAA) states that transportation activities must not
cause or contribute to new violations, worsen existing violations, or
delay attainment of air quality standards. These requirements apply to
all planned transportation activities--that is, all planned activities
in the entire 20-year timeframe of the plan.
The air quality plan identifies the maximum allowable emissions
that are protective of public health. The area must stay within these
emissions levels even after the state implementation plans' (Sips)
horizon if the area is to continue to protect public health and meet
the air quality standards. Today's transportation decisions have air
quality effects 20 years into the future, so it is important to
consider this entire timeframe before the projects are constructed.
We are aware of the benefits and challenges posed by differing
timeframes of the SIP and the transportation plan. Some stakeholders
argue that maintaining the air quality emissions targets for the
timeframe of the transportation plan is a central purpose of conformity
and perhaps its most important requirement. Because the obligation to
meet air quality standards persists indefinitely, the obligation to
meet air quality plan target should not terminate after the attainment
date. It can also take decades for the effects of transportation
investments to be realized. On the other hand, some transportation
agencies believe that air quality plans may be unrealistic because they
are not established with a 20-year horizon in mind, and therefore, it
is not necessarily appropriate to require areas to conform to them
indefinitely. They are concerned about the mismatch in the planning
timeframes and additional control measures for later years may not be
in place to offset growth.
We believe that communities should continue to integrate the air
quality and transportation planning processes to ensure that long-term
mobility and public health goals are achievable. Through the
consultation process, transportation and air agencies decide whether
modifications to the transportation plan or air quality plan are needed
to offset future transportation growth.
Question 3: Some described the potential effect of the recent court
decision as halting road building in certain areas. Do you think this
is a real threat? I understand that Atlanta, the focal point of this
debate, has reached a settlement on how to handle conformity. How many
other projects do you anticipate would be permanently stopped due to
the current guidelines?
Response. We do not believe that all projects will be permanently
stopped by the court's decision. Projects that are delayed by a
conformity lapse can proceed as soon as an area solves its conformity
problems; the majority of projects are not permanently on hold. State
and local agencies decide how to rectify their conformity problems, so
they decide whether they prefer to permanently stop certain projects,
or to seek other ways of improving the air. Conformity simply ensures
that an area's transportation projects are consistent with air quality
goals before construction begins.
We do not believe that the court decision threatens road building
because most of the over 200 areas that do transportation conformity
will not be impacted by the court's decision on grandfathering. Areas
that meet their conformity and air quality planning obligations can
continue to develop the transportation projects in their transportation
plans.
Transportation projects are only affected in areas that cannot
demonstrate that their transportation plan is consistent with clean air
goals. In these areas, projects may be delayed, but not permanently
stopped, while an area decides how best to balance its transportation
and air quality goals.
At the present time, only seven areas are in a conformity lapse and
thus affected by the court's ruling: Atlanta, GA; Raleigh, NC; Paducah,
KY; Ashland, KY; Kent County, DE; Charleston, WV; and Santa Barbara,
CA. Six of these areas will resolve their conformity problems in just a
few months, so disruption to the transportation planning process will
be minimized. Atlanta will need additional time to resolve its
conformity problems, due to long-term growth, air quality, and
transportation issues. The area is focusing its efforts to develop a
new, conforming transportation plan by March of 2000. On the other
hand, Kansas City recently resolved its conformity problems, so
projects are no longer affected.
Even during a conformity lapse, road building is not halted.
Transportation projects which have received a DOT funding commitment
for construction can still proceed when an area has conformity
problems. Projects under construction will not be stopped. In addition,
projects that are exempt from the conformity process can proceed at any
time. Exempt projects include safety projects, bridge repair, road
maintenance, bike lanes, and sidewalks. Transportation control measures
that are in an approved air quality plan because they reduce emissions
can continue to be advanced.
Question 4: If the current long-term conformity time horizon--20
years--were to be shortened to the same timeframe as the attainment SIP
process--only 3 years--how would regions inform their citizens and
elected of finials about the long-term impacts of transportation
spending and potential contributions to traffic, sprawl, and pollution?
Response. In our opinion, if the conformity time horizon was as
short as 3 years, areas couldn't fully inform their citizens and
elected officials about the air quality consequences of transportation
decisions, nor would areas be able to anticipate potential
contributions to traffic or increases in land area consumption.
Shortening the conformity horizon to as little as 3 years would mean
that areas would only look at short-term effects when making decisions
with long-term consequences. Areas could commit to projects in the near
term that result in potentially significant contributions to emissions
in the future, then later find themselves in a situation where they
cannot add necessary projects to their transportation system. With only
near-term information, areas couldn't choose the optimal set of
projects across the full timeframe of the plan. They wouldn't be able
to decide whether modifications to the transportation plan or air
quality plan are needed to offset future transportation growth. They
wouldn't have the opportunity to find a balance of projects and
pollution controls that protect air quality and meet their
transportation needs over the long term. Areas need full information to
make transportation choices, and this means they need to know the
effects of their decisions over the long term.
______
Responses by Robert Perciasepe to Additional Questions from Senator
Boxer
Question 1: In California, we have three areas that have lapsed
their conformity status. One because of the court case and another
simply because they are still waiting on an EPA review. What can your
agency do to speed these reviews and to approve new state
implementation plans in a more timely fashion?
Response. We agree that state implementation plans (SIPs) should be
reviewed expeditiously in support of Clean Air Act (CAA) requirements.
As a result of the March 2, 1999 court decision, EPA has created a new
process to review the adequacy of submitted SIP motor vehicle emissions
budgets, so that they can be used for conformity prior to EPA's
approval. In the absence of an approved SIP, EPA will continue to allow
adequate submitted SIP budgets to be used to ensure that transportation
actions are consistent with public health.
The March 2, 1999 court decision modified how EPA reviews submitted
budgets for conformity purposes. Under the former conformity rule,
submitted budgets could be used for conformity 45 days after they were
submitted, unless EPA had declared them inadequate. EPA had made many
adequacy findings in implementing the 1997 rule, but there were some
areas where budgets went into effect without EPA action. Some
California areas were impacted by the March 2, 1999 conformity court
decision, because conformity was based on submitted budgets that EPA
had not deemed adequate. EPA worked closely with these areas and the
Department of Transportation (DOT) to reinstate conformity quickly.
At present, Santa Barbara is the only California area in a
conformity lapse, and the area is expected to resolve its conformity
problems this fall. The area lapsed prior to the court's decision due
to complications in its planning processes. Santa Barbara is completing
a new conformity determination based on an approved 15 percent SIP for
ozone. EPA is currently reviewing the adequacy of Santa Barbara's
attainment SIP, but this review process will not prohibit the area from
resolving its conformity problems in the fall. Future conformity
determinations will be based on the submitted attainment budgets, if
EPA finds them adequate.
The Searles Valley is the only other California area affected at
this time. The area's conformity status is suspended due to the March
2, 1999 court decision ruling that conformity determinations be based
on adequate budgets. EPA is currently reviewing the adequacy of
Searles' submitted budgets, and if found adequate, the budgets would be
used for conformity. There has been no practical impact from the
court's decision since the area has no new projects.
EPA's new adequacy process will ensure that submitted budgets are
reviewed quickly. EPA expects to complete our adequacy process within
90 days of a state submitting a SIP, which includes a public comment
period. EPA will be working with state and local agencies to ensure
that its adequacy review will be coordinated to minimize disruption in
other planning processes. We will continue to work with state and local
air agencies as SIP strategies and conformity budgets are developed.
Our early involvement will ensure that adequate budgets and approvable
SIPs are achieved.
Question 2: How can your agency participate more fully in the
interagency consultation process to allow the conformity analysis to be
made on the most recently developed and approved data and to be
reviewed and approved by the interagency consultation team?
Response. EPA is very eager to see the most current information and
analysis used for conformity, and we continually encourage local
agencies to incorporate this data. We also recognize the need to be as
fully engaged in the interagency consultation process as possible.
Effective participation can be difficult with the variation in the
quality and quantity of materials and information provided by local
agencies and with the quality of their meetings and processes.
To improve these interagency processes and streamline planning, we
are currently engaged in a number of partnership efforts aimed at
identifying ways that we can interact more effectively with other
agencies working on air quality, environmental and transportation
planning efforts. EPA is encouraged by TEA-21's provisions which allow
states to use their Federal-aid highway funds to support increased
environmental agency staff to provide for expedited environmental
review of projects. In addition, through both our headquarters and
regional offices, EPA has been investing substantial resources to work
with DOT and others to improve planning processes under TEA-2 1's
environmental streamlining provisions. The best way to streamline
transportation planning is for environmental issues to be addressed
much earlier in the process, during the initial development of
transportation plans. At this early stage it is possible to create
strategies that will protect the environment, reduce transportation
problems, and enhance communities. By developing strategies to reduce
driving and sprawl we can reduce congestion, pollution, loss of open
space and destruction of communities simultaneously.
As a specific California-based example, EPA Region 9 staff is
currently involved in a partnership effort with the Federal Highway
Administration and California's Department of Transportation
(Caltrans). In response to a multi-agency seminar held on April 2,
1999, the three agencies formed a task force of 9 people to ``develop
effective interagency collaboration in the transportation and
environmental planning processes and their outcomes.'' The group has
brainstormed potential recommendations under the following goals:
(1) Improve communication and coordination among the three
agencies,
(2) Influence the planning process to result in better
transportation and environmental plans and projects; and
(3) Improve communication and coordination with external
stakeholders to improve the planning process.
With the vast number of transportation projects that are
anticipated for California over the next few years, all three agencies
are targeting development of guidance and training as an effective way
to clarify the regulatory and technical issues associated with
planning. However, all three agencies recognize that to be effective,
we have to be involved very early in transportation plan development.
Therefore, the workgroup is identifying specific high-priority pilot
projects to test the concepts of early involvement. It is hoped that
both the tools and the procedures developed in the pilots can be
carried over in other areas to improve other regional transportation
and environmental planning efforts.
Question 3: What steps can be taken to strengthen the general
conformity process in order to ensure that impacts of other Federal
agencies and programs--specifically, Federal-regulated sources--are
given the same scrutiny that the transportation sector receives?
Response. The EPA believes that conformity has been and will
continue to be a valuable component of areas' efforts to prevent
violations of the air quality standards. Pursuant to section 176(c) of
the Clean Air Act (as amended in 1990) (``CAA''), Federal agencies must
make a determination that ambient impacts which result from actions
they undertake conform with the air quality goals of the applicable
state implementation plan (``SIP'').
For conformity analysis purposes, the CAA distinguishes between
highway and transit-related activities (``transportation conformity'')
and all other activities (``general conformity''). The general
conformity determination is an analysis of the impacts of the direct
and indirect emissions related to the Federal action and over which the
agency has control. EPA's rules provide flexibility by specifying
several criteria and allowing the Federal agencies to meet any one of
the criteria. Recognizing that the SIP is primarily a state
responsibility, one of these provisions specifically allows states to
certify that an action is consistent with the SIP. The rules also
require the Federal action to meet any applicable SIP requirements and
emission milestones. The conformity determination assures that the
Federal agency will be aware of and prevent predicted violations of the
air quality standards and inconsistencies with state planning efforts
and SIP requirements.
Transportation conformity requires attainment demonstrations to
contain motor vehicle emissions budgets clearly identified and
precisely quantified which, together with all other emissions sources,
must be consistent with attainment goals. General conformity, by
contrast, is not tied to a specific budget in the SIP. General
conformity impacts are primarily area source and VMT (stationary source
emissions are exempt if they are regulated by other requirements).
In the structure of CAA section 176(c) itself, Congress appeared to
recognize a difference between transportation and general Federal
activities, since it contains much more detail regarding transportation
requirements. Because general conformity encompasses far more
activities that are not limited to any particular planning process such
as applies in the transportation world, the best way to ensure Federal
accountability with respect to general conformity is by better
coordinating Federal projects that cause air impacts with the state air
quality planning process. Section 176(c) and EPA's general conformity
rules require and encourage such coordination. In fact, because of
their more widespread community impact, the major Federal activities
that are required to demonstrate conformity, such as airport expansions
and Department of Defense base realignments, do undergo a great deal of
public scrutiny.
The Agency continues to support all coordination efforts enhancing
public awareness with regard to ongoing general conformity
determinations.
Question 4: The Southern California region has raised the problem
that there is a mismatch between the final date of attainment for the
State Implementation Plan (2010) and the end of their regional
transportation plan (2020). For the last few years of the regional
transportation plan, the regional planners would have to work under the
emissions ceiling imposed in earlier years. They say they will not be
able to account for growth and/or technology improvements. How do you
respond to that complaint? What possible legislative solutions are
possible to allow the MPOs some flexibility but ensure that SIP
emissions budgets are not violated?
Response. The state's attainment plan identifies the total level of
emissions that allows healthy air. Although emissions sources may
continue to grow after the attainment date, the total allowable level
of emissions remains constant. Because areas must continue to maintain
public health even after the attainment date, emissions must remain
below the emissions ceiling established in the state implementation
plan (SIP).
Today's transportation decisions will influence motor vehicle
emissions beyond the attainment date. Therefore, impacts over the
entire timeframe of the transportation plan need to be considered.
Otherwise, an area will have committed itself to motor vehicle
emissions increases without explicitly considering the tradeoffs in
terms of offsetting reductions in other sources. In contrast, the long-
term planning horizon provides an opportunity for bringing state and
local transportation and air quality planners together to decide how
future growth will occur.
EPA understands the challenges posed by coordinating long-term
transportation and air quality planning. We strongly encourage
transportation agencies to be involved in the development of air
quality plans, so that future transportation goals are considered when
emissions budgets are set. State and local governments and the public
are responsible for choosing what level of motor vehicle emissions is
appropriate for their area. It is important that these choices be
respected, and ultimately, adhered to so that the state and local plan
for clean air can work. Conformity reinforces these state and local
choices.
Growth beyond the SIP's attainment date can be considered by
extending the SIP's timeframe. EPA has assisted several areas--such as
Portland, OR, and Albuquerque, NM--in revising their SIPs to create
conformity budgets for later years. Salt Lake City chose to create a
20-year ozone maintenance plan to address long-term transportation
growth. In 1998, the South Coast region amended its air quality plan to
create new conformity budgets for the year 2020.
These budgets accounted for current technological improvements and
accounted for growth in other emissions sources. EPA worked closely
with the state and local air agency in the development of these
budgets, and the transportation agency was able to demonstrate
conformity.
In addition, MPOs do have the ability to take credit for some
current technological improvements in their emissions analyses, even if
the SIP doesn't reflect them. For example, transportation agencies can
take credit for new auto or truck tailpipe standards once they are
finalized. Some areas have been able to pass conformity by taking
credit for new National Low Emission Vehicle (NLEV) standards.
EPA believes that our existing conformity rule and SIP policy
provide sufficient flexibility for areas to manage the mismatch in
planning timeframes, and therefore, legislative action is unnecessary.
We posed this issue and several options to stakeholders for comment
when we developed the 1997 conformity rule. Some transportation
agencies commented that air quality plans may be unrealistic because
they are not established with a 20-year horizon in mind, and therefore,
it is not necessarily appropriate to require areas to conform to them
indefinitely. They expressed concern that the mismatch in the planning
timeframes and additional control measures for later years may not be
in place to offset growth. EPA received other comments in support of
retaining the requirement that conformity be demonstrated for the
entire 20-year transportation plan. In the final rule, we clarified
that EPA's existing policies allow for SIP timeframes to be extended to
address this issue. Furthermore, we described some flexibility in SIP
requirements when the SIP's timeframe is voluntarily extended. For
example, in these cases EPA could approve the SIP based on commitments
to adopt specific future measures; the state would not have to fully
adopt the measures, as is usually required.
Question 5: Also, if the long range plan conformity time horizon
were to be shortened to the same timeframe as the attainment SIP, how
would regions inform their citizens and elected of finials about the
long-term impacts of building a new outer beltway on traffic, sprawl,
and pollution growth?
Response. In our opinion, if the conformity time horizon were
shorter than the life of the transportation plan, areas couldn't fully
inform their citizens and elected officials about the air quality
consequences of transportation decisions, nor would areas be able to
anticipate potential contributions to traffic or increases in land area
consumption. Shortening the conformity horizon to as little as 3 years
would mean that areas would only look at short-term effects when making
decisions with long-term consequences. Areas could commit to projects
in the near term that result in potentially significant contributions
to emissions in the future, then later find themselves in a situation
where they cannot add necessary projects to their transportation
systems. With only near-term information, areas couldn't choose the
optimal set of projects across the full timeframe of the plan. They
wouldn't be able to decide whether modifications to the transportation
plan or air quality plan are needed to offset future transportation
growth. They wouldn't have the opportunity to find a balance of
projects and pollution controls that protect air quality and meet their
transportation needs over the long term. Areas need full information to
make transportation choices, and this means they need to know the
effects of their decisions over the 20-year life of the transportation
plan.
Question 6: What would prevent a decision on a new outer beltway
from being grandfathered on the basis of a short-term analysis and then
producing a new violation of the Federal air quality health standards
after the attainment date, imposing large pollution clean up costs on
utilities, small businesses, and individuals as well as increased
health impairments and deaths among thousands of citizens with
respiratory problems?
Response. If the conformity determination were based on a short
timeframe such as 3 years, then portions of a new beltway could be
advanced without further conformity analysis. A short-term analysis
would leave the area unaware of the new beltway's long-term emission
consequences. This could ultimately require the area to achieve
offsetting emission reductions from other sources. If the area had
considered the long-term effects of the beltway, it may have identified
alternatives to the beltway that meet transportation needs but have
less emissions impact.
We believe that conformity's requirement for 20-year analysis,
combined with the approach that we developed in response to the court
decision, prevents the situation the question describes. Under our new
approach, projects that are mere plans on paper cannot continue forward
even when they may cause air quality problems. If long-term analysis
shows that there will be future air quality problems, a project can
continue only if DOT has authorized it for construction.
Question 7: How can your agency establish a more coordinated and
systematic approach with state and local agencies for transportation
and air quality planning?
Response. EPA agrees that we should continue to improve
coordination of the transportation and air quality planning processes,
and we believe that the current conformity process establishes the
foundation for such improvements. Prior to conformity, there was
minimal, if any, coordination between the transportation and air
quality planning processes. Congress clearly intended to integrate
these processes when it adopted more specific conformity requirements
in the 1990 Clean Air Act.
EPA has many current and future opportunities to improve conformity
implementation. We continue to provide assistance to many state and
local transportation and air quality agencies across the country--
especially in areas facing conformity challenges. We are currently
engaged in a number of partnership efforts to improve coordination on
air quality, environmental and transportation planning issues. For
example, EPA regional offices are working with Department of
Transportation field offices and state and local agencies to design
individual pilot areas for implementing TEA-2 1 goals. It is hoped that
these pilot efforts will result in better planning tools and procedures
that will be transferable to other areas.
We are proactively involved in the development of air quality plans
and associated conformity budgets used in transportation planning and
conformity processes. EPA also works with air quality and
transportation planners in the development of state and local
conformity rules, which are submitted to EPA as ``conformity Sips.''
The Clean Air Act requires all areas doing conformity to create site-
specific conformity procedures. The conformity SIP is the mechanism for
Federal, state, and local transportation and air quality agencies to
decide how coordination and consultation will occur in each area's
conformity process.
State and local agencies can propose alternate conformity
procedures through the Conformity Pilot Program. EPA and DOT finalized
the pilot program earlier this year, in order to provide an opportunity
for states and cities to test innovative conformity procedures.
Finally, EPA and DOT are developing a memorandum of understanding
(MOW) to improve coordination between the Federal agencies on
conformity, air quality, and transportation planning issues. Improved
consultation between the Federal agencies will lead to quicker agency
reviews and more effective responses to state and local government
issues. All of these efforts will support continued improvements in the
conformity process.
__________
Statement of Kenneth R. Wykle, Administrator, Federal Highway
Administration and Gordon J. Linton, Administrator, Federal Transit
Administration
Mr. Chairman and Members of the Committee, we are pleased to appear
before you today to discuss conformity under the Clean Air Act and,
particularly, the impact of the March 2 decision of the United States
Court of Appeals for the District of Columbia Circuit in Environmental
Defense Fund v. Environmental Protection Agency on our ability to
approve highway and transit transportation projects for Federal
financial assistance.
The Clean Air Act requires, among other things, that Federal and
federally assisted transportation projects conform to the air quality
goals and priorities established in a state's air quality
implementation plan (SIP) for attaining the Clean Air Act air quality
standards. For programs administered by the Federal Highway
Administration (FHWA) and the Federal Transit Administration (ETA), we
determine whether transportation projects conform to a state's SIP by
comparing the total expected air quality emissions from the aggregate
of projects contained in the transportation plan and transportation
improvement program (TIP) with the provisions of the SIP. The
Environmental Protection Agency (EPA), with Department of
Transportation (DOT) concurrence, has issued transportation conformity
regulations that implement this requirement.
In the EDF decision, the court invalidated portions of the EPA
regulations, including (1) a provision that allowed projects that had
been found to conform and had completed the National Environmental
Policy Act (NEPA) process (previously referred to as grandfathered
projects) to continue to receive FHWA and FTA approvals and funding
commitments in the absence of a conforming plan and TIP, and (2) a
provision that permitted the use of ``submitted SIP emissions budgets''
to make conformity determinations. This means that most Federal and
federally assisted FHWA and FTA projects may not be approved in air
quality nonattainment or maintenance areas which do not currently have
a conforming plan or TIP, or in which the plan and TIP were found to
conform on the basis of a submitted emissions budget (unless, and
until, EPA has approved the budget or found it adequate).
The EDF decision held that projects that had previously been found
to conform and had completed the NEPA process could not be approved or
funded in nonattainment and maintenance areas that do not have a
currently conforming plan and TIP. However, projects that are exempt
from the conformity process and also transportation control measures
(TCMs) that are included in an approved SIP may still be advanced. In
addition, it is our view that projects that have received final funding
commitments for construction (plans, specifications, and estimates
(PS&E) approval, full funding grant agreement (FFGA), or an equivalent
approval or authorization) before a conformity lapse or the court
decision, need not be stopped. Under guidance issued on June 18, 1999,
63 construction phases valued at $823 million were allowed to proceed.
But, if subsequent phases of such projects require FHWA or FTA approval
(that is, projects that are to be completed in stages and receive PS&E
or equivalent approval one stage at a time), such approval must be
withheld until there is a valid conformity determination for the area
of the project. In addition, we cannot continue to fund active design
and right-of-way acquisition projects, with certain exceptions, during
a conformity lapse.
The obvious question is, what areas will be affected by this
decision? The answer to this question changes over time. Because areas
move in and out of conformity, the list of lapsed areas is dynamic.
Often, areas are able to re-establish conformity relatively quickly, in
a matter of months; other areas can take longer. Historically, we have
had as many as 21 areas in lapse at any one time. After the court
decision on March 2, ten (10) areas were in lapse.
As of the week of July 12, we estimate that there are seven (7)
areas of the country that do not have currently conforming plans and
Tips. These 7 areas are:
Ashland, KY Atlanta, GA Kansas City, KS and MO Monterey, CA
Paducah, KY Raleigh, NC Santa Barbara County, CA
We estimate that there are approximately 158 surface transportation
projects in these areas that we had considered ``grandfathered'' under
the now-invalidated EPA regulation, and which now may not be approved
for Federal funding. These projects are valued at about $1.96 billion.
This includes approximately 73 projects in the design phase valued at
$242 million and 59 projects undergoing right-of-way acquisition valued
at $289 million that are currently being delayed. It should be noted
that of the $1.96 billion figure, $684 million worth of projects are in
the Atlanta area.
How long it will be before we can approve these remaining projects
will depend on how long it takes for these areas to make valid
conformity determinations. We expect these areas to re-establish
conformity by the end of this year, with the exception of Atlanta. The
Atlanta Regional Commission (ARC) projects that conformity will be re-
established by March, 2000. We will work diligently with EPA, MPOs,
state departments of transportation, and other relevant parties to
assist these areas in re-establishing conformity as soon as possible.
There are also two (2) other areas in the country, as of July 12,
where current conformity determinations were based on submitted
emissions budgets which were not found adequate or approved by EPA. In
these areas, as a result of the EDF decision, only construction
projects that had received PS&E approval, FFGA, or an equivalent
approval or authorization prior to the decision, may proceed. No new
FHWA or ETA approvals may be granted until conformity is redetermined
using an appropriate conformity test. These two (2) areas are:
Longmont, CO Searles Valley portion of San Bernardino County, SCAG,
CA
If the two areas do not re-establish conformity within the next 3
months, two additional projects, worth less than $1 million, could be
affected. However, these additional areas are expected to re-establish
conformity by this September.
The future effects of the EDF decision could be felt in any
nonattainment or maintenance area which becomes unable to make
conformity determinations because of the problems with the area's
transportation planning processes or SIP development process. Since
these problems are usually state or local in nature, it is difficult to
predict how many such areas there will be, if any. As a result of the
EDF decision, in any such ``conformity lapse'' areas, FHWA and ETA
could not continue to approve or fund projects during a lapse, unless
the construction phase of the project had received PS&E approval, FFGA,
or an equivalent approval or authorization prior to the lapse, or was
otherwise exempt from conformity. We will work with relevant
stakeholders to resolve potential problems as soon as possible.
DOT has been working closely with EPA during the EDF litigation and
since the court issued its March 2 decision. We believe that we can
administer our programs consistent with the court's ruling by working
closely with EPA, both on revising the EPA's Clean Air Act implementing
regulations and on state-by-state or area-by-area bases to address
lapses in conformity determinations.
FHWA, FTA, and EPA work closely with state and local officials on a
regular basis. When the agencies learn that a community is facing a
conformity determination lapse, the agencies will meet 6 months prior
to the anticipated lapse date and jointly evaluate the potential
consequences of the lapse, assess any concerns, and try to resolve
issues that would lead to the conformity lapse. The FHWA, FTA, and EPA
will meet at least 90 days before a conformity lapse to determine which
projects should receive funding commitments before the lapse, which
projects must be delayed, and what recommendations to state and local
officials would be useful.
When a conformity lapse is imminent, FHWA and FTA, after
consultation with EPA, will notify the Governor, or the Governor's
designee, immediately to inform the Governor of the consequences of the
lapse and to suggest potential solutions to minimize disruptions to the
transportation programs in the respective nonattainment and maintenance
areas.
The FHWA and FTA are continuing to work with EPA to develop revised
conformity regulations.
Again, we appreciate the opportunity to testify before the
Committee on this important matter, and look forward to working with
you as we continue to address the need to advance important
transportation programs and projects while improving the air quality of
areas, states, and the nation.
__________
Statement of Dean Carlson, American Association of State Highway and
Transportation Officials (AASHTO)
Mr. Chairman and Members of the Committee, my name is Dean Carlson.
I am Secretary of the Kansas Department of Transportation, and am here
today to testify on behalf of the American Association of State Highway
and Transportation Officials (AASHTO). I want to thank you for your
leadership in holding this hearing to address the critical problems
associated with this very complex and complicated issue called
``transportation conformity.''
Mr. Chairman, AASHTO supports the national goal of improving air
quality, but we believe that we can and should work toward achieving
this goal in a practical and effective manner that does not require
burdensome, complex and costly regulations which do nothing to reduce
emissions. We stand ready to assist you in moving forward to remedy the
unwarranted and unnecessary additional burdens placed on the project
delivery process resulting from the agreement reached by EPA and DOT to
implement the March 2 EDF decision. To this end, we urge your support
of S. 1053, recently introduced by Senator Christopher ``Kit'' Bond.
S. 1053 would reinstate the transportation conformity process as it
existed prior to the Circuit Court's decision. While it does not solve
the myriad of problems with this burdensome process, it would permit us
to return to the rules that were adopted after lengthy negotiation and
debate within the transportation and environmental communities. AASHTO
strongly supports enactment of S. 1053 because a legislative remedy is
needed. The administrative action that has been taken by EPA and DOT
has not proven satisfactory.
I want to assure you that all of the State transportation officials
across the country fully support the national goal of improving air
quality and ensuring a healthy environment in all of our States. We
strongly believe that environmental stewardship is very much a part of
our fundamental transportation mobility mission, and continually seek
new and innovative, multi-modal strategies to more effectively unite
the two. However, we are extremely concerned that many of the current
procedures for linking transportation and air quality have resulted in
increased uncertainty throughout the entire transportation planning and
project delivery process and have substantially increased project costs
and delays, not to mention our fundamental ability to provide quality
transportation systems and services. The existing approach for linking
transportation and improved air quality is based on an esoteric,
resource intensive and costly set of regulations that have done little,
if anything, to reduce air pollutants.
The current transportation conformity regulations were drafted by
the U.S. Environmental Protection Agency (U.S. EPA) to implement
provisions of the Clean Air Act Amendments of 1990, which more
explicitly defined the process for ensuring that transportation plans
and programs conform with State air quality implementation plans
(SIPs). As the States and Metropolitan Planning Organizations (MPOs)
gained practical experience with the regulations, minor, but important,
modifications were recommended, resulting in three sets of amendments
to the regulations. Most of the regulatory adjustments provided by
these amendments were endorsed by both the transportation and
environmental communities.
Among the adjustments were several that specifically lessened
uncertainty and strengthened the link between air quality strategies
and transportation plans and programs:
An explicit set of rules for allowing those projects, which had
previously been found to conform and were past the environmental review
process, to advance to construction--the so-called ``grandfathering''
of projects;
The ability to use the emissions budgets in submitted SIPs as the
test for conformity rather than continuing to rely on a ``Build/No-
Build'' test that both the transportation and environmental communities
agree is flawed; and
The addition of a 12-month ``grace period'' to enable newly
designated areas to prepare technically to undertake conformity
demonstrations.
These provisions are examples of the results of an effective
partnership between the transportation and environmental communities to
begin to move forward in establishing a more rational and practical
approach to ensuring transportation plans and programs adhere to state
air quality goals. More work is needed, but this was an excellent
start. Unfortunately, what has been accomplished was completely undone
with the March 2, 1999 decision by the U.S. Court of Appeals for the
D.C. Circuit in response to a case brought by the Environmental Defense
Fund.
In its decision, EDF v. U.S. EPA, the Court remanded several of the
key adjustments made by EPA in its three sets of amendments,
eliminating the grandfathering provision, prohibiting the use of
submitted budgets as the basis for making conformity determinations and
eliminating the grace period for newly designated non-attainment areas
to prepare for demonstrating conformity. The court ruled that the
current law does not provide the statutory basis for EPA to institute
these regulatory modifications, which were designed to bring some
flexibility and common sense to the conformity process.
In response to the court's action, EPA chose not to appeal,
preferring instead to proceed with compliance in a manner that would
mitigate the negative impacts on transportation, and from their
perspective, would diminish the procedural uncertainties during the
appeals process. Therefore, both the U.S. Department of Transportation
(DOT) and EPA have published guidance intended to comply with the
ruling and to administratively lessen the impacts on the transportation
planning and project delivery process. We respectfully believe that the
guidance does not, in fact, achieve this goal. Indeed, the most recent
guidance of June 18, 1999 from the U.S. Federal Highway Administration
(FHWA) is even more restrictive and burdensome than earlier guidance
issued subsequent to the court's decision. Nor does the recent
administrative action ensure that additional court challenges will not
continue to disrupt transportation programs.
Indeed, the court itself recognized the burdensome nature of its
ruling, stating, ``if this legislative scheme is too onerous, it is up
to Congress to provide relief.'' Such relief is urgently needed, and
the legislation recently introduced by Senator Bond would statutorily
reinstate the earlier ``mutually agreed to'' modifications. This would
merely require a minor, technical amendment to the Clean Air Act to
clarify implementation. We strongly support Senator Bond's bill, S.
1053 and respectfully urge this Committee to approve this measure as
soon as possible.
In short, what we now have is an agreement between EPA and DOT that
is intended to mitigate the impacts of the court's ruling, but now
allows highway project development to be disrupted right up until the
day construction actually begins. These are not new projects, but
rather ones that are the product of a rigorous and lengthy regional
transportation planning process and that have already passed previous
conformity tests. In fact, DOT has informed the States that in the
event of a conformity lapse, they will immediately stop payment for
ongoing design work and right-of-way acquisition.
Let me provide some examples of the impacts that the elimination of
the grandfathering provision has already had in several states where
conformity has lapsed for a variety of reasons.
In my own State of Kansas, we have determined that in order to
maintain air quality, 10 years from now the Kansas City metropolitan
area will need to begin using reformulated gasoline. This 10-year
horizon will give us the time to put in place the necessary
distribution infrastructure to ensure smooth transition and effective
implementation of this air emission reduction strategy. However, EPA is
insisting that in order to include this long-term strategy in our SIP,
we must have enforceable mechanisms in place to begin using
reformulated gasoline within 1 year, despite the fact that it is not
needed for some 10 years. Therefore, Kansas City's transportation
conformity demonstration has lapsed, and our transportation program has
come to a halt. Both highway and new transit capacity projects have
been stopped.
Other areas face similar problems. Late last year, the North
Carolina Department of Transportation (NCDOT) foresaw that the Raleigh/
Durham/Chapel Hill/Carrboro non-attainment area might experience a
conformity lapse. At the time NCDOT was working with the MPOs in the
region to update their regional transportation model, and it had become
apparent that the time required to satisfactorily complete the update
effort would result in a short-term conformity lapse. NCDOT determined
that the risk of project delays that might result from a temporary
conformity lapse would be minimal because project planning and design
would be far enough along--under the grandfather rules existing prior
to March 2 of this year--that project delivery would not be
interrupted. In weighing the risks of a short-term conformity lapse,
NCDOT had not anticipated a change in the rules, which the March 2 EDF
decision represents.
In just this one area, the DC Circuit Court's March 2 EDF decision,
eliminating the grandfathering provision, has affected $72 million
worth of projects.
One of the projects on which work has come to a halt involves
access to a new solid waste facility in a small community outside of
Raleigh, North Carolina. The environmental permit for the waste
facility is tied to construction of a new road, without which trucks
would have had to travel through residential neighborhoods to access
the facility. Now, construction of the solid waste facility and the new
highway facility are out of sync, complicating the development of a
much-needed environmental facility. While NCDOT and its MPOs in the
Raleigh metropolitan area were proceeding responsibly with their
regional transportation modeling update effort, they unfortunately were
ambushed by a change in the conformity regulations that have cost them
significantly in terms of dollars, delays, environmental construction,
and economic development.
In Kentucky, two rural counties north of Paducah were designated as
non-attainment for ozone after the enactment of the 1990 Clean Air Act
Amendments. In April 1995, with no further violations, the area was
redesignated as a maintenance area. As required by the conformity
regulations, Paducah then had 18 months to demonstrate conformity with
the emissions budgets established in the State Implementation Plan
(SIP). Unfortunately, the mobile source emissions budgets established
in the early 1990's for the region were based on inaccurate travel
projections which do not coincide with the actual growth, albeit small,
that has occurred and is now projected to occur in the future.
Therefore, the area is unable to demonstrate conformity with the
current emissions budget and the previous conformity demonstration for
this maintenance area has lapsed. There is nothing the area can do
until a new emissions budget is negotiated, submitted and approved by
EPA, which is a lengthy process that will take more than a year to
complete.
In the meantime, construction on critical highway projects has come
to a halt. For example, design work on a replacement bridge with new
capacity over the Tennessee River has been stopped. The existing bridge
has a sufficiency rating of 5.3 on a scale of 100, which means that it
is in extremely poor structural condition and is weight-restricted.
Work has also ceased on the relocation and replacement of a bridge
across the Kentucky Lake Dam, which has been requested by the Army
Corps of Engineers to coincide with replacement and modernization of
the locks on Kentucky Lake.
These examples illustrate how some metropolitan areas are already
experiencing problems due to the March 2 EDF decision. However, over
time these problems will spread through the country to all non-
attainment and maintenance areas, the numbers of which will
substantially increase under the new standards for ozone and
particulate matter. Moreover, because newly designated non-attainment
areas will have no grace period in which to technically prepare for
performing conformity analyses, we anticipate that many never before
designated non-attainment areas will immediately face a conformity
lapse. Quite simply, the new guidance from FHWA and EPA creates such a
complicated, erratic and unpredictable process that most areas will
find it impossible to keep conformity lapses from occurring at some
point.
I have also attached to my testimony a hypothetical illustration of
the many points at which a conformity lapse can occur, and the impact
on the project delivery process resulting from EPA and DOT's agreement
in response to the EDF decision.
While enactment of Senator Bond's legislation will reinstate the
status quo as it existed prior to March 2, I would be remiss if I did
not inform this Committee of another fundamental flaw in the
transportation conformity process. Under the existing regulations there
is a mismatch between the shorter-term horizon for attainment or
maintenance of air quality standards in SIP and the 20-year time
horizon required for the long-range transportation plan. The practical
result is that there is no mechanism for examining tradeoffs among
mobile, areawide and stationary sources for the out-years. Moreover,
when this happens, the transportation agencies essentially take on the
long-term air quality planning responsibility, but without the
authority to unilaterally implement the types of programs (e.g.,
enhanced Inspection and Maintenance or reformulated gasoline) needed to
substantially reduce mobile source emissions.
One remedy would be to allow the operative SIP emissions budget to
suffice for the purposes of demonstrating conformity of the long-range
transportation plan. Transportation conformity would need to be
demonstrated only for those years for which a SIP emissions budget
exists. We urge you to assess the fundamental flaws resulting from
inadequate linking of the transportation and air quality planning time
horizons. We are prepared to offer assistance in searching for ways to
modify the transportation conformity procedures that will ensure better
linkages with air quality planning while simultaneously ensuring
continued transportation mobility and access.
Mr. Chairman, AASHTO's member States share the national goal of
improving air quality, and believe that we should work cooperatively
with the Federal Government and environmental community to find and
implement practical and effective procedures and strategies to help us
meet our mutual goal. The DC Circuit Court's decision has placed the
States in an impossible situation that leaves projects facing an
uncertain future right up until the point at which the shovel goes in
the soil. EPA and DOT attempted to mitigate the effects of the
decision, but unfortunately, each successive release of guidance became
ever more restrictive. Legislative action is now required, we applaud
Senator Bond's efforts on this issue and urge your support of S. 1053.
A Hypothetical Illustration of the Impacts of the Current Guidance on
the Project Development Process
One of the most onerous provisions of the post-court ruling
guidance that contributes to creating a wildly unpredictable planning
and project delivery process involves grandfathered or ``previously
conformed'' projects. Conformity regulations in existence before the
March 2 EDF decision established a reasonable point at which highway or
transit projects could proceed regardless of conformity demonstration
difficulties, including lapses. However, the latest guidance, intended
to mitigate the impacts of the court's ruling, now allows highway
project development to be disrupted right up until the day construction
actually begins. These are not new projects, but rather ones that are
the product of a rigorous and lengthy regional transportation planning
process and that have already passed previous conformity tests. In
fact, the U.S. FHWA has informed the States that in the event of a
conformity lapse, they will immediately stop payment for ongoing design
work and right-of-way acquisition.
I offer here a figurative illustration of a typical highway project
progressing to construction in a metropolitan area to demonstrate
difficulties with operating under the latest guidance and the many
points at which the project development process can be interrupted.
In my example, a State department of transportation is developing a
project that adds lanes for 12 miles to a suburban arterial in an ozone
non-attainment area. Due to its length and complexity, the project will
need to be constructed in two phases. Our project will add one lane in
each direction, add a bi-directional turn lane, resurface the existing
two lanes, improve the interchange at the interstate from a partial to
a full interchange, channelize six intersections, and interconnect 12
signals in the corridor.
The total cost of the project is $65-70 million. From the beginning
of the feasibility study through the letting of construction contracts,
our project faces more than a dozen potential Federal approvals. The
critical decision points and project development steps follow:
The feasibility study for our project is done, and Phase I
engineering is nearing completion. The metropolitan area is
experiencing difficulty demonstrating conformity of its new regional
transportation plan and the current conformity demonstration has
lapsed. Therefore, our project, which has previously passed all
required conformity analyses, is now in jeopardy.
Under the old rules, FHWA would have been able to approve the
project because it came from a previously conforming long range
transportation plan (Plan) and Transportation Improvement Program
(TIP). Under the agreed settlement and new guidance, they now cannot
approve a record of decision on this project because it is not in a
currently conforming Plan.
After 6 months, the MPO adjusts the mix of projects and strategies
included in the Plan to enable a demonstration of conformity. FHWA then
approves the record of decision, allowing the project to move beyond
Phase I engineering.
Unfortunately, while the MPO was able to demonstrate conformity of
the Plan, the MPO cannot now demonstrate conformity of the TIP, which
must be reanalyzed within 6 months of a new Plan conformity
demonstration. Even though the Department's project development staff
is ready to begin Phase II engineering, the U.S. FHWA cannot authorize
the expenditure of Federal funds because of the lack of a conforming
TIP. Under the rules existing prior to March 2, engineering could have
been authorized because this project was contained in a previously
conforming TIP.
Then within 6 months, the MPO is finally able to demonstrate
conformity of the TIP. The FHWA allows Phase II engineering to begin
and right-of-way acquisition to occur.
In the meantime, the state environmental agency submits a control
strategy SIP that includes emission reductions for an enhanced vehicle
inspection program. While the State legislature approves the program,
the legislation contains a provision sunsetting the program after 3
years. Because the State environmental agency has included emissions
attributed to this program beyond the 3 years, the U.S. EPA disapproves
the SIP, resulting in a conformity freeze until a new SIP is approved.
The TIP has reached the end of its 2-year life, and even though the MPO
can demonstrate conformity on the new TIP, conformity is frozen until
the State environmental agency can submit an approvable SIP. Therefore,
the necessary permits from the U.S. Fish and Wildlife Service, the Army
Corps of Engineers and U.S. DOT cannot be obtained.
When the State environmental agency submits an approvable SIP and
the necessary permits are issued, authorization for construction of the
first phase of project construction is requested. After construction
begins, U.S. EPA requires the State environmental agency to submit
control strategies that address nitrogen oxide (NOx) emissions. Because
national NOx controls are delayed, the State is unable to submit a SIP
with the appropriate regulations in place.
Unfortunately, the U.S. EPA issues a failure to submit finding just
as the MPO is concluding work on the update of the Plan, which is
required every 3 years. Because the SIP call has been missed, the
Federal agencies are unable to approve the conformity determination for
the Plan. Although Phase I of construction is nearing completion, and
the transportation department is ready to request approval for the
second phase of construction, U.S. FHWA cannot authorize the next
phase. The project misses a construction season, which undermines the
reason for phasing, causing another year of delays and congestion for
the motoring public.
While convoluted, this hypothetical illustration is entirely
possible under the current situation. This demonstrates the significant
delays facing highway projects due to conformity regulations, despite
the fact that the project would reduce emissions and improve safety.
This illustration also demonstrates that failure to reduce air
emissions is not the source of delay and added costs, but rather
bureaucratic implementation of conformity regulations where the
adherence to process is the goal, not improving air quality.
______
Response by E. Dean Carlson to Additional Question from Senator Chafee
Question: In your testimony, you stated that as part of the
conformity process, the EPA was insisting that Kansas City implement a
reformulated gasoline program within 1 year despite the fact that it is
not needed for some 10 years. Furthermore, your failure to implement
this EPA requirement was the cause for Kansas City's conformity
demonstration to lapse.
However, it is my understanding that the reformulated gas (RFG)
program is being required to be implemented within 1 year because of
violations of the 1-hour ozone standards and that RFG was chosen as the
contingency measure to deal with such violations as part of your
maintenance plan.
Please clarify.
Response. Yes, Kansas City had 1 year to implement RFG due to ozone
violations before any transportation project work stoppage occurred.
Due to the artificial conformity crisis, work stoppage on
transportation projects was immediate. That is the difference.
______
Response by E. Dean Carlson to Additional Questions from Senator
Lieberman
Question 1: If S. 1053 were enacted, what safeguards would prevent
a repetition of the commonly cited example of Atlanta where $1 billion
in new road projects received exemptions from Clean Air Act just before
the expiration of the area's Regional Transportation Plan and the onset
of a conformity lapse?
Response. The conformity process was intended to achieve an
accepted balance between transportation and air quality. Some
safeguards that would achieve this and help prevent another ``Atlanta
Case'' would be to have frequent dialogs between the transportation and
air quality side. It is important for everyone to get involved at the
conceptual or planning stage before the actual programming of projects
begins. The key is comprehensive planning that examines all impacts and
available alternatives, and having a long range plan that addresses
these needs and concerns.
Question 2: Reverting to the conformity process established prior
to the court decision would again allow new conformity determinations
to be made based on submitted but disapproved SIP emission budgets and
based on submitted but unreasonable or inadequate SIP budgets. What
protection would this leave the public in seriously polluted areas
where improper SIP submissions might be used to approve new beltways or
other sprawl-inducing roads that, once built, would produce
substantially greater air pollution than alternative transportation
investments and strategies? Would this not tend to then put the cleanup
burden on other sectors or delay attainment of healthful air quality,
increasing asthma deaths among children and the elderly and those with
respiratory problems?
Response. In the case of a disapproved or inadequate SIP budget,
the region would still have the option to use other tests to screen
these projects for potential impacts to air quality. The ``build''
``no-build'' test and ``less than 90'' could be used. These tests are
still subject to review by EPA as to their adequacy. The fallacy in the
July, 1999 direction on conformity (cutting off funds) is that while
asthma and respiratory deaths may increase, no consideration is given
to the fact that traffic deaths of people forced to use antiquated
roads and bridges will increase.
Question 3: If the current long-term conformity time horizon--20
years--were to be shortened to the same timeframe as the attainment SIP
process--only 3 years--how would regions inform their citizens and
elected officials about the long-term impacts of transportation
spending and potential contributions to traffic, sprawl, and pollution?
Response. The mismatch between the years covered by the Long Range
Plan and SIP budget puts the burden on the transportation sector in
latter years to improve air quality and demonstrate conformity on
earlier established budgets. If the conformity time horizon is
shortened, then there needs to be some linkages or tradeoffs beyond
that 3-year time to inform and address these impacts that could occur
within 20 years. As mentioned before, the key is having input from both
the transportation and air quality planning sides before any projects
are programmed into transportation improvement program or long range
plan.
__________
Statement of Jack L. Stephens, Jr., Executive Vice President for
Customer Development, Metropolitan Atlanta Rapid Transit Authority
Mr. Chairman, Members of the Committee, thank you for the
opportunity to present testimony to you today regarding transportation
conformity activities under Section 176 of the Clean Air Act and the
effect recent litigation has had on this program.
I serve as Executive Vice President for Customer Development at the
Metropolitan Atlanta Rapid Transit Authority (MARTA) in Atlanta,
Georgia. My responsibilities include the directing of the various
offices and departments of the agency charged with governmental
relations, planning, marketing, media and public relations, community
relations, research, customer service and economic development. I am
neither a legal expert nor a planning technician. My responsibilities
are much broader and require constant efforts to build sustainable
consensus among those with whom I must interact.
Although I am a strong advocate for public transit in the
transportation conformity ``discussions'' within the local, regional,
state and national debate, transit advocacy is not my principal reason
for agreeing to appear before this Committee today. Rather, I offer to
the committee certain observations from a local implementing agency on
the impact of efforts at achieving transportation conformity within my
community in the hope of presenting a perspective from the field that
you might not obtain otherwise.
Within the Sunbelt, Atlanta has been one of those fortunate cities
that has recently been blessed with growth and success. We have few
natural barriers to growth--no great rivers to cross, no mountain
ranges or valleys, no sea coast. Georgia has a history of strong home
rule and our land use laws, which are principally assigned to local
governments to develop, are generally weak. Like water poured onto a
flat surface, we can and do grow freely in any direction that we
desire.
In efforts to expand their local tax base, local municipalities and
counties compete to attract new residents and new jobs. Local and state
governments have poured tax dollars into the provision of
infrastructure to support and attract this new growth. We are known as
a pro-business region. Atlanta is consistently ranked among the top ten
cities in which to do business. In 1998, the Atlanta census region had
more than 326,000 housing permits issued making us second only to Los
Angeles and the Washington Baltimore area (``State Implementation Plan
for the Atlanta Ozone NonAttainment Area'', June 7, 1999, Georgia
Department of Natural Resources, Environment Protection Division, Air
Protection Branch, p. i).
Without natural boundaries and with competition for growth strong
among local governments, our region has become the 'poster child' for
sprawl. We have become the victims of our own success. In 1998 the
Sierra Club listed Atlanta as the No. 1 city most threatened by sprawl,
while national news media declared the region the new sprawl capital.
This is not the kind of recognition that civic and business leaders
desire.
A state Constitution that places land use decisions at the local
level and a metropolitan planning organization charged with land use
and transportation planning composed principally of the heads of local
governments and their appointees, each with an equal vote, has added to
our inability to come to grips with our regional sprawl. Sprawl has
resulted in Atlanta residents traveling more in their automobiles than
any place in the world, more than 100,000,000 miles per day
representing 36.5 miles per day per capita and a 50.8 minute average
commute (``State Implementation Plan for the Atlanta Ozone Non-
Attainment Area'', June 7, 1999, Georgia Department of Natural
Resources, Environment Protection Division, Air Protection Branch, p.
ii).
We know that ground level ozone is formed from a chemical reaction
of NOx and VOCs in heat and strong sunlight (both are a fact of life in
the Sunbelt summer). In the 13 county Atlanta Non-Attainment area, cars
and trucks account for about half of the NOx emissions and nearly half
of the non-natural source VOC emissions. Given the American love for
the automobile and our local land use pattern, is it surprising that
the Atlanta region was classified as Serious Non-Attainment for Ozone
following the passage of the Clean Air Act Amendments of 1990?
Did the Clean Air Act Amendments passed by Congress create the
problem? No, the law simply recognized the problem and insisted that
local solutions be found and implemented. Is it a new problem? No, in
fact the Atlanta region has only met the old attainment standard for
ozone (no more than 0.12 ppm during 1 hour on any day per year) once in
the last 20 years. We can debate the parts per million or old standard
or new standard, but the air is still dirty. We can and should discuss
excuses for exceedance like the weather in the Sunbelt or the negative
effects of trees, but the air is still unhealthy. Congress has
rightfully determined that Americans are entitled to clean air and that
communities must determine actions to see that they achieve it or risk
losing Federal funds for projects that are contributing to the problem.
Metropolitan Atlanta was one of the first regions to be faced with
the difficulties of obtaining transportation conformity. We have also
been subject to lawsuits to force the agencies charged with achieving
conformity and attainment to do what they are supposed to do to protect
the health of their citizens. It may be one of the most difficult
issues ever presented to our community to solve.
Agencies, governments and individuals have staked out positions in
this battle, and battle it is, and have begun to point fingers, seeking
to place blame for the situation in which we find ourselves. It has
been reported that Congress will soon put an end to these sanctions and
conformity requirements and that we can go back to doing things the way
we always have, postponing the inevitable day of reckoning to some
point in the distant future. I hope not. It is not the fault of
Congress, the EPA, the DOT, the environmentalists, transit advocates,
or the road lobby. In truth, it is our own fault and as such we must
solve it.
The Federal sanctions placed on my community are undoubtedly
causing difficulty. The response to these sanctions has brought out the
worst and the best in our public servants and citizens. Let me offer
some examples of the difficulties that we have experienced.
When the Federal sanctions were imposed on our region for failing
to meet conformity, more than 100 road projects were considered for
grandfathering under the conformity regulations. Most of these would
have greatly increased single occupant vehicle use in the region and
exacerbated the problems with cleaning the air. These were not
necessarily ``bad'' projects and all were projects that individual
local governments advocated and the Georgia DOT supported for local
development and increased mobility. However, even if Federal sanctions
remained in place for any new road projects, estimates were that these
projects would take up to 10 years to complete at a time when we were
in serious non-attainment for ozone. Was this the intent of Congress? I
certainly hope not. But the system worked in this case. Subsequent
negotiations among Federal and state agencies pared this list nearly in
half. Then a lawsuit was fled and settled out of court that reduced the
number of projects to sixteen. Although not everyone (perhaps no one)
was totally satisfied with the result, I think it is clear that it took
the region in the right direction for solving its clean air problems. I
am convinced that this result could never have been achieved without
the law and the court's insistence that the will of Congress be obeyed.
Even transit is having problems with the transportation conformity
law and regulations. Most would consider the availability of mass
transit a positive solution to getting commuters out of their cars and
reducing the vehicle miles traveled in the single occupant vehicle.
Under current rules, new rail lines cannot be built without a
conforming regional transportation plan. In Atlanta, efforts to expand
transit as part of the solution to our air quality problems will have
to be postponed until we have a conforming plan. Conformity regulations
allow certain transportation projects, like a transit rail extension,
to be classified as a transportation control measure (TCM) but current
estimates indicate that the process would take between 18 months to 2
years to obtain that designation on each project considered. The
ability to expedite such procedures should be available as appropriate.
However, the focus that the Clean Air Act and conformity
requirements have brought to our region's problems has also had some
significant positive results.
State, regional and locally elected officials, in response to
concerns expressed by their citizens for the quality of life threatened
by congestion and failure to meet air quality standards, have begun to
think in terms of regional transportation systems and mobility rather
than simply building specific road projects to meet a local
government's individual economic development need. Citizens do not
necessarily see more roads as the only answer to their congestion and
clean air problems. It probably does not hurt that recent elections
have resulted in candidates who support smart growth defeating the
growth at any cost incumbents.
For years, suburban counties have been resistant to public
transportation. Recent surveys have shown strong evidence of changes in
people's attitude toward mass transit. The impact of the Clean Air Act
has been that citizens are educating themselves and are being educated
on the problem of clean air and the health hazards to their families.
This is the precursor to behavioral changes that are necessary for our
community to solve our conformity problem.
Ridership on the Metropolitan Atlanta Rapid Transit Authority
(MARTA) has grown by 20 percent since 1996. Developers now seek us out
and report that they have clients whose requirements for locating their
new headquarters or offices are that they be next to our rail stations
or accessible by public transit.
In short, Congress' intent expressed through the Clean Air Act, the
Federal agencies' willingness to impose sanctions and the Federal
court's willingness to uphold the law, have significantly changed the
dynamics of decisionmaking within the Atlanta region. Unquestionably,
that was the reason that the newly elected Governor, Roy E. Barnes,
convinced the state legislature to create a new state agency, the
Georgia Regional Transportation Authority (GRTA). GRTA is empowered to
withhold state support for transportation and other projects if local
governments are not responsible in planning for and addressing issues
of transportation conformity and congestion.
The transportation conformity requirements and, ultimately, the
threat of successful litigation are forcing communication among all
levels of government charged with transportation and environmental
planning. If we want more roads, then we must support other
transportation alternatives (transit rail, HOV lanes, bikeways, buses,
sidewalks, and commuter rail) that will allow us to achieve conformity.
Meaningful land use planning to better support our transportation
decisions and smart growth policies are now being debated as critical
elements in preserving our quality of life and continued regional
success.
In conclusion, I would ask Congress and this Committee to move
cautiously in considering changes to the transportation conformity
provisions of the Clean Air Act. Change is occurring in our communities
challenged with achieving conformity and meeting the national air
quality standards. We continue to need help from our Federal partners
as we seek to meet this challenge but we must solve our own problems at
the state, local and regional level. Sadly, it is unlikely that this
will happen without the continued insistence of the Congress in this
matter.
__________
Statement of Jacob Snow, General Manager, Regional Transportation
Commission of Clark County, Nevada
I. Introduction
Chairman Chafee, Senator Baucus, members of the Committee on
Environment and Public Works, I am Jacob Snow, General Manager of the
Regional Transportation Commission of Clark County, Nevada. I am here
today to provide testimony regarding RTC's experience and
interpretation of regional transportation planning conformity and
programming, and the impact that recent litigation has had on these
functions. I formally request that my full written testimony be entered
into the record.
II. Background
The RTC is a regional governmental entity which performs the
following three functions:
Directs the expenditure of funds generated from a County
Option Motor Vehicle Fuel Tax for regional street and highway
construction
Serves as the Metropolitan Planning Organization (MPO)
and facilitates the federally mandated transportation planning process
for the Las Vegas Urbanized Area
Provides public mass transportation within Clark County,
Nevada.
The RTC was established in 1965 under state statute to expend funds
from a county-option motor vehicle fuel tax for regional street and
highway improvements (NRS 373.030). RTC membership is set by state
statute and is governed by elected representatives from the County of
Clark, and Cities of Las Vegas, Henderson, North Las Vegas, Boulder
City and Mesquite. The Director of the Nevada Department of
Transportation sits as an ex-officio member.
In 1981, the RTC was designated by the Governor as the Metropolitan
Planning Organization (MPO) as defined by Federal law, for the Las
Vegas Urbanized Area. In 1983, state legislation enabled the RTC to own
and operate a public mass transit system to the exclusion of all others
(NRS 373.117).
As the MPO, the RTC directs the federally mandated cooperative,
coordinated and continuous transportation planning process for the Las
Vegas Urbanized Area. All Federal and state transportation projects
must be identified and coordinated through the Regional Transportation
Plan (RTP) and the Transportation Improvement Plan (TIP) maintained by
the RTC. Functioning as the MPO, the RTC provides the opportunity for
citizen and private sector participation in the transportation planning
process.
Provision of mass transportation by the RTC emphasizes transit's
role as a service to the citizens of Clark County. In addition to the
most obvious of its many functions--that of providing a base of
essential mobility for all citizens of our rapidly growing community
for employment, shopping and personal enrichment--transit is an
essential element in RTC's strategy to reduce traffic congestion and
improve regional air quality.
The Las Vegas metropolitan area has experienced unprecedented
growth in the past 10 years. Since the early 1990's, the region has led
the Nation in metropolitan area growth. In fact, between 1990 and 1998
the valley's population grew from 706,000 to over 1.3 million,
representing an 80 percent increase in residents. During that same
period, the number of residents employed in the valley increased by 57
percent, growing from 353,000 to over 557,000.
Air Quality and Transportation Planning As mandated by the Clean
Air Act Amendments of 1990 (CAAA), states must develop a State
Implementation Plan (SIP) addressing each pollutant for which the State
fails to meet the National Ambient Air Quality Standards (NAAQS). In
the case of the Las Vegas valley, SIPs are required for both Carbon
Monoxide (CO) and Particulate Matter less that ten microns
(PM10). The SIP indicates how the region intends to meet the
schedules prescribed in the CAAA. Important to transportation
conformity, emission inventories are established during the SIP
development for stationary, area and mobile source emissions.
In consultation with the RTC, the Health District and interested
local jurisdictions, Clark County assigns emission reduction targets
for each source category. For the mobile source category, the emission
reduction target is further refined into a regulatory limit on
emissions, referred to as a ``budget.'' The targets typically rely on
programs that focus on specific aspects of emissions, including fuel
technologies that yield fewer harmful pollutants, implementation of
more rigorous programs to ensure auto emission performance (Inspection
and Maintenance--I&M Programs), transportation control measures (TCMs)
that promote changes in travel behavior and result in less single
occupant vehicle (SOV) travel and programs that target congestion
improvements. Collectively, the TCMs become part of the Transportation
Improvement Program's (TIP) implementation priorities.
As part of the RTC's role in conformity, the agency must ensure
that all sources of pollution are considered via a regional emission
analysis. This analysis includes consideration of emissions resulting
from: estimated travel occurring within the entire network in the
nonattainment area; the recognition within the travel model of all
proposed regionally significant projects (travel lanes, interchanges,
transit); and the consideration of the effects of any emission control
programs. The emission analysis output is expressed in Vehicle Miles
Traveled (VMT) by roadway type, which is used in the EPA's air quality
model to estimate the daily quantity emitted into the valley's air by
each pollutant.
Since reclassification as a serious nonattainment area for CO,
Clark County has been working cooperatively to prepare a revised CO SIP
that will demonstrate attainment and establish a revised mobile source
emission budget that the RTC can use to make future conformity
determinations. The deadline for the submission for the serious area CO
SIP was May 3, 1999. The CO SIP revision is expected to be submitted to
EPA by Clark County by early October 1999.
On the best time line, the EPA may provide an adequacy finding on
the budget emissions by December 31st, 1999. A positive adequacy
finding would allow the RTC to use the budget for conformity
determinations. This time line presents a very tight schedule with
little or no margin for unforseen issues. Of concern to the RTC is the
fact that the long-range plan lapses on January 12, 2000, which could
preclude the RTC from advancing projects. Projects in the TIP have been
programmed through the period ending June 30, 2000.
In 1997 Clark County submitted the serious area PM10
SIP. The SIP, however, did not demonstrate attainment of the NAAQS.
Consequently, the SIP did not identify a budget for mobile source
emissions that the RTC can use for plan conformity, partially because a
complete inventory of emission sources had not been part of the plan.
Instead, the plan focused on the fact that reentrant road dust on paved
roads played a minor part of the total PM10 emissions. In
the absence of a mobile source emission budget, the RTC must use the
overall betterment test, referred to as the Build versus No Build Test.
The EPA has made it clear that until a new SIP is completed which
demonstrates attainment, the only way the RTC can utilize the overall
betterment test is if an inventory is completed of the paved road
source emissions and that a strategy be identified to address emissions
related to construction of transportation infrastructure.
The RTC intends to assist this effort and achieve completion by
November 1999. Together with the CO SIP mobile source emission budget
and a roadway inventory, expected to be submitted by October, the RTC
will be working with these emission thresholds to demonstrate plan
conformity for the 2000-2020 RTP.
III. Consequences of EDF v. EPA Ruling to RTC
As a result of EDF v. EPA, 167 F. 3d 641 (DC Cir. 1999), if the
deadlines outlined above are not met, the RTC's RTP and TIP may lapse
because no method exists to show conformity in the absence of an
adequate or approved SIP. In looking at the consequences, the RTC
considers the impacts of a lapsed RTP and TIP to be essentially the
same as adopting a RTP-TIP with only projects that are exempt from air
quality conformity. Only projects that improve system safety, support
existing mass transit services (as opposed to service expansions),
promote ridesharing/vanpooling and bicycle/pedestrian facilities can be
included in an RTP-TIP that contains air quality exempt investments.
And, while these initiatives are laudable and Clark County has made
significant strides in all these areas, it would be very difficult to
construct a 20-year RTP that defines over $12 billion in transportation
investments dedicated just to projects exempt from conformity.
Therefore, RTC's comments focus on the consequences of having a
substantially reduced investment level in the region's transportation
infrastructure and services.
As a recipient of Federal Transit funds, a lapsed RTP-TIP will mean
a delay in the advancement of transit projects that expand services
which have obvious clean air benefits. If an air quality exempt RTP and
TIP are approved, the Federal investment level in Clark County will
have minimal impact on mobility, and in effect would be as detrimental
to the regional economy as having no Federal investment whatsoever.
Indeed, it seems contrary to good public policy that transit projects
become at risk in the period during which an RTP and TIP lapse because
of a failure to make a sound conformity finding.
Second, as the County Gas Tax agency, the RTC's short-term street
and highway program defined in the current TIP will continue under the
provisions defined in the court ruling. This means that the RTC and
member entities will continue to ensure that an upcoming $200 million
bond issuance will proceed and the projects defined in the TIP and
funded from non-Federal sources will continue.
If the RTP-TIP lapses, the Nevada Department of Transportation
(NDOT) may consider moving funds that were planned to be expended in
Clark County to other regions of the State. The result of such an
action is two-fold. First, it could mean loss of the ability to
``flex'' NHS and STP funds for transit projects because they are no
longer available to the region. Indeed without an RTP-TIP, the RTC and
its member entities will have diminished leverage with the NDOT to
ensure that transportation investment levels will remain at anticipated
levels. Second, projects already in the pipeline will lose committed
funds and face significant delays. This could adversely impact the
completion of highway projects that help improve air quality
conditions.
A third impact is the disruption of the NEPA process. Several major
projects including the expansion of U.S. 95 and the development of a
fixed guideway initiative under the ETA Section 5309 program are
currently moving toward a Record of Decision. Should SIPs not be
submitted and the RTP-TIP lapse, no basis for project conformity will
exist. Therefore, these projects could be significantly delayed.
Finally, the outcome of a lapsed RTP-TIP could mean economic
dislocations resulting from the failure to spend Federal investments in
the region. Failure to make both highway and transit investments that
contribute substantially to the local economy could result in job
losses and a decline in tax revenues which support transportation.
Thus, the region's financial condition and fiscal capacity to support
transportation infrastructure and services could be eroded. Clearly,
this is undesirable and counterproductive to the all-important goal of
improving air quality.
IV. Conclusion
Our primary premise is that the regulations promulgated by the
Environmental Protection Agency under Section 176(c) of the 1990 Clean
Air Act Amendments (the transportation conformity rules) fundamentally
undermine Congress' intent to ensure that Federal funds are spent on
projects that will contribute to eliminating or reducing the severity
of any violation of the NAAQS. Furthermore, the transportation
conformity regulations, and the recent decision in EDF v. EPA, work
against MPO's efforts to achieve expeditious attainment of such
standards, by disallowing transit projects that ultimately expand
service and have a beneficial effect on regional air quality.
Allow us to illustrate. With the current transportation conformity
rule, if any MPO were to come up with a Regional Transportation Plan
and Transportation Improvement Program that did not conform with the
State Implementation Plan, then any federally funded or federally
approved project would not be allowed to proceed. The environmental
community would be pleased in this sense because they would perceive
that implementation of such a nonconforming plan would not be conducive
to health and welfare. Also, the environmentalists would feel as if
they were able to control and limit growth. However, such a stringent
rule is a double edged sword in that many federally funded projects, if
allowed to proceed, would result in an overall decrease in hazardous
air pollutants. An example of such a category of projects is the
funding of transit related infrastructure.
For example, suppose the new TIP for Clark County, NV had such a
strong increase in vehicular miles traveled (VMT) due to extensive
growth that the average daily emissions from the new program would
exceed the SIP emission budget. Such a plan would not conform. This
would mean that any new roadway projects in the TIP could not be built.
Ironically, it would also mean that Federal funds earmarked to buy new
buses for the transit system in Clark County, to decrease roadway
congestion and reduce hazardous air pollutants, could not be spent.
Such an approach is unnecessary and counterproductive to environmental
goals.
Fortunately, under the current Clean Air Act, to make a change
allowing for Federal funding and Federal approvals of projects that
will benefit air quality to go forward does not require changing the
law, it only requires changing the regulations that attempt to
implement the intent of the law. Since section 7506(c)(1)(b) United
States code states that any Federal project that will contribute to
eliminating or reducing the severity and number of violations of the
NAAQS is a conforming project, then, ostensibly, projects such as
enhanced bus service for high occupancy vehicle only lanes and new and
expanded fixed guideway systems that can demonstrably show a reduction
in hazardous air pollutants in association with their implementation
should be allowed to proceed forward and be federally approved and
funded.
Furthermore, the rule does not meet with Congress' intent because
all transportation conformity issues are not created equally. For
example, if a major metropolitan airport needed to expand by adding a
new air carrier runway, a new passenger terminal, and a new parking
garage, an air quality conformity analysis would be required. However,
because airport improvements fall under a different conformity
regulation, called general conformity, a different set of rules apply.
Under these different regulations, even if the new runway,
passenger terminal and parking garage were unaccounted for in a non-
attainment area's SIP, these projects would still be allowed to go
forward, as long as the state's emission budget was not exceeded. Even
if the state's emission budget was exceeded, the airport projects would
still be able to go forward as long as the airport agreed in writing to
provide appropriate mitigation.
Section 7506(c)(2)(D) of United States Code thus shows that
Congress wanted no transportation projects to proceed without assurance
that they would not undermine attainment or maintenance of current air
quality standards. Well, quite frankly, as complex air quality modeling
demonstrates time and time again, transit related transportation
projects have a positive net effect on emissions budgets, yet under the
current rules and regulations, these projects that benefit air quality
cannot go forward.
The overall solution to these problems is demonstrated in the win-
win scenario that is reflected in the general conformity approach. The
project can go forward and meet the needs of the community from a
transportation standpoint, but only if they can provide enough
mitigation to meet the standards of the law that the project not
contribute to any delay of reaching attainment. Clearly, these mutually
beneficial goals can and should be pursued. This environmentally and
developmentally balanced approach will avoid the timely and costly
confrontation associated with the Atlanta case and other future
unintended consequences.
__________
Statement of Mark Pisano, Southern California Association of
Governments
Chairman Chafee, Members of the Committee, My name is Mark Pisano,
Executive Director of the Southern California Association of
Governments (SCAG). SCAG is the Metropolitan Planning Organization
(MPO) for the six counties of San Bernardino, Ventura, Orange,
Imperial, Riverside, and Los Angeles and the 184 cities therein, which
makes SCAG the largest MPO in the nation. Not only is the region the
largest in the nation, but SCAG also covers 4 air basins and 5 air
districts. The South Coast Air Basin, within the SCAG Region, is the
only extreme non-attainment air basin in the nation. Consequently, SCAG
has a particularly strong interest in the conformity process. I
appreciate the opportunity to speak on the issue of transportation air
quality conformity.
At the outset, I would like to state that since the process of
conformity was reinforced by the 1990 Clean Air Act, we have found it
to be a major tool in our efforts to plan transportation improvements
while at the same time meeting the requirements of the Clean Air Act.
It has provided us with a structured and flexible process that permits
innovative policymaking in the preparation of both our transportation
and air quality plans. Working with both the Department of
Transportation and with EPA, and despite our extreme air quality
designation, we have been able to successfully make conformity findings
for two transportation plans and four Transportation Improvement
Programs (TIPs) plus a major TIP amendment. All this has been
accomplished despite more than 12 percent growth in population and an
expanding economy. However, it is also very important to note that
making conformity findings is becoming increasingly problematic for us,
which could put into jeopardy our ability to carry on the $24 billion
in projects currently contained in the TIP.
Simply put, the process works and conformity works. But the process
is also complex, and cumbersome, and we believe that improvements can
and should be made to make it better live up to its promise. Toward
that end, I would like to offer a few suggestions.
Issue 1: Regional Transportation Plan Emission Budget
The emissions budget for the regional transportation plan does not
extend past the attainment deadlines identified in the region's air
quality plans. Consequently, when achieving the long-range attainment
dates in the regional transportation plan, emission budgets are held
constant at the level of the attainment year set forth in the approved
State Implementation Plan (SIP). Thus, while our transportation plans
reach out to 2020, and soon will proceed to 2025, attainment dates are
held at 2010 for ozone and even earlier for other pollutants, freezing
them at the level permitted set for transportation at the date of
attainment. No accommodation can be made for growth, nor is there the
ability to use technological advances to raise the budget. Also, we do
not have the ability to take credit for actions not specifically
covered in the rules, which severely affects growing areas. We know
that growth will be our most important issue in the coming years as we
add another 6 million residents to the region's present population of
16.7 million. Having a mechanism which allows us to deal effectively
with the impacts of growth on conformity is probably our most urgent
need in this regard.
Recommendation: Allow use of the build/no build test procedure
beyond the attainment date or allow credit for the historic emissions
reduction trends due to technological advances.
Issue 2: Timing Cycles
The cycles for transportation planning, air quality planning and
transportation funding are different, although, these cycles are
interdependent. This leads to confusion and a lack of coordination.
While the regional transportation plan process and the state
implementation plan process occur every 3 years, funding cycles occur
every 2 years. Thus, we are required to undertake an extra conformity
analysis for the second tip within a single plan cycle, rather than a
single finding for a tip which is concurrent with the conformity of the
plan itself.
Recommendation: a coordinated and systematic approach by Federal,
state, regional and local agencies needs to replace the current
inefficient system.
Issue 3: EPA's Approval Process
The current conformity process requires scag's regional
transportation plan to meet the air quality standards for various
pollutants identified by the EPA-approved State Implementation Plans.
Through the interagency consultation process, all levels of
government--Federal, state, regional, and local--develop the most
relevant information and data on demographics, travel behavior, and
emissions for the State Implementation Plans. The conformity process,
however, breaks down when EPA fails to approve new state implementation
plans in a timely manner. Consequently, conformity analysis on scag's
regional transportation plans, must be conducted on outdated data,
assumptions and standards. For example, although our region adopted a
new air plan for PM10 in 1997, EPA's failure to approve it
means that we are still forced to use the 1994 plan and its targets
despite significantly improved understanding of the causes and actions
required to deal with this pollutant.
Recommendation: Require EPA to fully participate in the interagency
consultation process and allow the conformity analysis to be made on
the most recently developed and approved data, which would be reviewed
and approved by the interagency consultation team.
Issue 4: Imbalance of Impact of Sanctions for Non-attainment Status.
While Southern California has been succcessful to date in meeting
the requirements of conformity, we are concerned, based on the
experience of regions not in attainment, that the Clean Air Act as
presently written does not provide for a balance of impacts between
transportation and other sectors. Once a region is declared out of
transportation conformity, it is unable to restore its conformity
through measures taken in other areas even if these are the most
effective approaches, both economically and politically. Each sector is
treated as a closed system and there is no incentive or provision in
the statute to balance the impacts and responsibility based on
effectiveness. This means, for instance, that even as the industrial
changes technologies and eliminates major sources, no allowance is made
in the overall accounting. Transportation funding remains frozen even
where overall pollutants are within plan limits and cannot be resumed
until tranportation programs restore that sector's contribution.
Issue 5: Federal Actions
Finally, as you discuss the issue of conformity I would like you to
consider as well the importance of further improvements in the process
for including Federal actions under general conformity.
We have built a strong interagency consultation process for
transportation conformity. this process was developed in our region as
an alternative to the rulemaking procedure set forth in the regulations
which we felt did not meet the tests of cooperation and local
participation. our process is based on a memorandum of understanding
amongst the affected parties, including USDOT, CALTRANS, the California
Air Resources Board, SCAG and the County Transportation Commissions. It
has been cited as a national model, but is not currently included as an
approved alternative to the rulemaking. We would like to have this
added specifically.
But we must also note that given the magnitude and importance of
other Federal actions outside the province of transportation
conformity, we would argue for a much strengthened general conformity
process, such as we have with the department of defense on base
closures and with the FAA on airports.
We also need a more active inclusion of federally regulated sources
like diesel engines, trains, ports, airports and the like in our
planning. without full Federal participation, most especially by EPA in
controlling these federally regulated sources, and by EPA, and the
Departments of Commerce, HUD and Interior on Federal actions within our
region, it will be difficult if not impossible for us at the local
level to develop successful strategies that will allow us to keep our
demonstrations of attainment and conformity.
We very much look forward to working with the Congress and the
affected Federal departments and agencies to resolve these
deficiencies, thus permitting us to retain the ability to meet the
challenges of the future effectively and as full partners in the
process.
This concludes my remarks and I would be pleased to address any
questions which you may have regarding my testimony.
______
Responses by Mark Pisano to Additional Questions from Senator Lieberman
Question 1: If S. 1053 were enacted, what safeguards would prevent
a repetition of the commonly cited example of Atlanta where $1 billion
in new road projects received exemptions from Clean Air Act just before
the expiration of the area's Regional Transportation Plan and onset of
a conformity lapse?
Response. As I noted in my testimony, Southern California includes
the only area in the Nation with an ``extreme non-attainment''
classification, as well as three other basins with ``severe''
classifications. Southern California Association of Governments'
(SCAG's) experience has shown that the only acceptable approach to
safeguard against lapsing and consequent attempts to ``grandfather''
projects is to establish feasible plans and to continue to work toward
their implementation in the conformity process.
The primary vehicle for this process is the formal interagency
consultation process that we have developed, and which includes the
active participation of all required Federal, state and regional
agencies. Our experience has shown that when the Environmental
Protection Agency (EPA) is a full participant, issues are resolved in a
timely manner. However, EPA must also commit the resources and staff
needed to keep itself in active contact and involvement with the
technical developments as they are made. When EPA is unable to
participate at the level needed, the process does break down, leaving
the Region unsure of EPA's position.
With this consultation process, the development of both
transportation plans and state implementation plans (Sips) cannot
proceed without the full understanding and acceptance by all parties of
each component of the Plan as it is developed, thus preventing the kind
of problem represented by the Atlanta case.
Question 2: Reverting to the conformity process established prior
to the court decision would again allow new conformity determinations
to be based on submitted but disapproved SIP emission budgets and based
on submitted but unreasonable or inadequate SIP budgets. What
protection would this leave the public in seriously polluted areas
where improper SIP submission might be used to approve new beltways or
other sprawl-inducing roads that, once built, would produce
substantially greater air pollution than alternative transportation
investments and strategies? Would this not tend to then put the cleanup
on other sectors or delay attainment of healthful air quality,
increasing asthma deaths among children and the elderly and those with
respiratory problems?
Response. As with my answer above, it is SCAG's contention that
EPA's active and ongoing involvement is the best means to avoid the
submittal of unreasonable or inadequate budgets in the first place.
This is especially critical in light of the continuing changes in the
state of scientific knowledge with respect to the emissions budget.
California's methodologies have been significantly improved from year
to year, and the latest science is incorporated into each new SIP
development and submittal. With EPA's participation, the acceptability
of this information is known in advance prior to the final submittal,
and so, where the consultation process is followed, there is no
possibility that a submitted budget will be inadequate.
Question 3: If the current long-term conformity time horizon--20
years--were to shortened to the same timeframe as the attainment SIP
process--only 3 years--how would regions inform their citizens and
elected officials about the long-term impacts of transportation
spending and potential contributions to traffic, sprawl, and pollution?
Response. In a region with severe or extreme non-attainment, it is
impossible to make an attainment demonstration within the timeframe of
a 3-year planning horizon. The 20 year horizon of the RTP is required
in order to make not only the longer term impacts known, but also to
deal with measures and projects which cannot be completed within such a
short timeframe. Full attainment relies on measures that require
lengthy application in order to reduce the emissions to acceptable
levels. This applies to both the introduction of new technologies
related to emissions (fleet turnover) and to the development of transit
and other modes designed to reduce the reliance on the automobile.
A related issue, which is problematic within the SCAG region, is
the lack of guidance within both the Clean Air Act and the EPA
regulations for measures designed to deal with the post-attainment
period of the Regional Transportation Plan. The SIPs for the SCAG
region currently have attainment dates for various pollutants between
2006 and 2010, whereas the RTP currently extends to 2020, and a 2025
horizon revision is now in preparation.
At present, there is no mechanism within the rules for dealing
effectively with this issue. As I testified earlier, SCAG recommends
that authority be granted to either (1) use the ``build/no build''
test, or (2) allow the use of historic emissions reduction trends, or
(3) permit the transportation planning agency to propose new measures
which the air agencies and EPA may then review for acceptability. The
present process, unfortunately, does not allow for tradeoffs between
mobile and stationary sources brought on by the kinds of technological
and economic changes likely during this extended time-frame.
__________
Statement of Michael A. Replogle, Environmental Defense Fund
A vital provision of the Clean Air Act is today under attack.
Senate Bill 1053 would reopen a loophole to let those who profit from
building roads at taxpayer expense avoid accountability for the effects
of their projects on public health and air quality. The bill would
reinstate unsound regulations rejected by the U.S. Court of Appeals for
the District of Columbia in a March 2, 1999, ruling. We urge you to
oppose that bill and efforts to enact it or other anti-environmental
riders here or through the appropriations process.
The rule struck down by the Court allowed projects planned years
ago to receive new funding agreements long after it was clear that the
projects and the larger systems they compose would exacerbate
violations of national air quality standards. Nearly all available
resources in some metro areas were committed to projects that would
worsen traffic growth, pollution, and sprawl while leaving no resources
available for air-quality improving projects.
Metro Atlanta provides a good example of what was wrong with the
regulations overturned by the court and how Clean Air Act conformity
encourages better regional problem-solving. Georgia officials knew in
1995 that the Atlanta transportation plan could not conform with the
State Implementation Plan emission budget for 1999. There were many
solution available, such as adopting measures for cleaner fuels and
vehicles, better vehicle inspection and maintenance, or smarter growth
and transportation investments that could cut traffic growth, or
changing their air quality plan to clean up old, dirty power plants.
Instead, they chose to pursue a loophole. Though half of Atlanta's
pollution comes from car and truck tailpipes, EPA' now-overturned
regulations allowed approval of nearly $1 billion of new sprawl and
traffic inducing road projects even after the transportation plan was
found to grossly exceed the emission limits set in the Georgia air
pollution plan for 1999. With 6 years of road construction activity
exempted through this loophole, Georgia road-builders tried to stick
the bill to everyone else for air pollution clean-up.
It was Atlanta's reputation for a high quality of life that took
the hit. Their massive road building effort didn't solve traffic
problems, but brought them longest commutes in America and increasing
air pollution violations. Atlanta business and civic leaders got the
wake-up call, and this year established a new regional authority to
better manage their growth, transportation, and air pollution. This is
a Clean Air Act conformity success story in the making, helped by the
March 2 ruling. Federal, Georgia, and Atlanta area officials last month
signed an agreement prohibiting funds for grandfathered road projects
until the region has a new transportation plan that conforms with Clean
Air Act requirements. Regional authorities hope to adopt such a plan in
March 2000. Construction continues on several hundred million dollars
of roads approved prior to the ruling.
The court ruling is bringing Atlanta area residents better
transportation choices and cleaner air. Since March, several hundred
million dollars have been redirected from highways at the edge of the
region into projects that address pollution and transportation
problems, including buying clean buses, building park-and-ride centers,
HOV lanes, smart traffic signal and traveler information systems,
reconstructed bridges and intersections, and highway safety projects.
US DOT and EPA have issued workable legal guidance implementing the
ruling. Nationally, the list of regions and projects affected by the
ruling indicates a changing and shrinking list of metro areas that face
generally short-term issues requiring problem-solving to resolve
conflict between the transportation and air quality plans. DOT and EPA
are trying to head off future problems before they occur. Thanks to the
ruling, the costs of pollution cleanup-from traffic growth won't be
automatically thrown onto utilities, small businesses, and others by
locking in pollution-increasing commitments to road projects years in
advance of when funding is available, as happened in Atlanta. By
reopening the same failed loophole that allowed Atlanta to get into its
mess, Senate bill 1053 would encourage repetition of Atlanta's
mistakes, delaying and making more costly the attainment of healthful
air quality across America.
Proponents of Senate bill 1053 say the March 2 ruling would shut
down highway construction in much of America, stunt economic
development, increase air pollution, and endanger the traveling public.
Just the opposite is the case.
Highway safety projects remain exempt from Clean Air Act funding
curbs. Smart engineers and planners will continue building highways
under conformity that operate safely during all phases of system
development, while managing traffic growth, expanding travel choices,
and respecting environmental laws. In most regions that face conformity
issues, conflicts between air quality and transportation plans will be
resolved without great delay by adopting readily available measures
that have been successful elsewhere, such as cleaner fuels, vehicle
maintenance, traffic and growth management, and area and stationary
source air pollution controls.
No legislative fix is needed in response to the March 2 ruling. But
if there is any effort to improve Clean Air Act implementation, we
would suggest it make it easier for regions to add pollution and
traffic reducing measures to their transportation plans and programs
during conformity lapses and promote fuller consideration of the cost-
effectiveness of demand and growth management and transportation
pricing incentives in the regional planning process.
Thank you for your consideration.
______
Letter submitted for the Record by Michael Replogle
Defenders of Wildlife,
Earthjustice Legal Defense Fund,
Environmental Defense Fund,
Environmental Working Group,
Friends of the Earth,
Izaak Walton League,
League of Conservation Voters,
National Environmental Trust,
Natural Resources Defense Council,
Physicians for Social Responsibility,
Sierra Club,
Zero Population Growth,
July 13, 1999.
Protect the Clean Air Act, Please Oppose S. 1053
Dear Senator: A key enforcement provision of the Clean Air Act is
under attack.
The road builders are seeking to exempt themselves from
accountability for the effects of scores of taxpayer-financed projects
on public health and air quality.
On June 7th, Senator Kit Bond wrote to ask for your support for S.
1053, which would amend the Clean Air Act and reverse the March 2,
1999, decision (No. 97-1637) by the U.S. Court of Appeals for the
District of Columbia in the Environmental Defense Fund (EDF) vs.
Environmental Protection Agency (EPA).
We urge you to oppose S. 1053 and any effort to enact it or other
anti-environmental riders as part of the appropriations process.
Proponents of S. 1053 assert this court ruling will increase air
pollution, endanger the safety of the traveling public, and stunt
economic growth.
Just the opposite is the case. In fact, the March 2 court ruling
will avoid the waste caused by investing Federal resources in
transportation systems that make air pollution worse, ensuring that
transportation
projects are consistent with valid state air-pollution plans. The
decision restores the incentive for regional and state transportation
agencies to take seriously their obligation to develop metropolitan
transportation systems that serve both mobility needs and the public
health protection goals of clean air.
This will cut the cost and time needed to achieve healthful air
quality for all Americans.
The rule struck down by the Court had been seriously abused in the
past by allowing projects planned many years ago, but not funded, to
receive funding agreements years after it was clear that the projects
and the larger systems they compose would exacerbate violations of
national air quality standards. Nearly all available resources in some
metro areas were committed to projects that would worsen air quality by
fostering sprawl and traffic growth while leaving no resources
available for air-quality improving projects.
Metropolitan Atlanta provides a good example of what was wrong with
the rules overturned by the court and how Clean Air Act conformity
encourages better regional problem-solving. Georgia officials knew in
1995 that the Atlanta transportation plan could not conform with the
State Implementation Plan (SIP) emission budget for 1999. They had many
options available to fix this problem, such as adopting measures for
cleaner fuels and vehicles, better vehicle inspection and maintenance,
or smarter growth and transportation investments that could cut traffic
growth, or changing their air quality plan to clean up old, dirty power
plants. Instead, they sought ``grandfather'' exemptions from Clean Air
Act review under the now-overturned EPA regulation for
nearly $1 billion of sprawl-inducing road projects that could keep
the road-builders busy for six or more years. The road builders, not
environmentalists, harmed Atlanta's economic development prospects by
exacerbating sprawl and air pollution problems, drawing critical
attention to Atlanta's declining quality of life from sources ranging
from USA Today (see attached article of June 18, 1999) to the Wall
Street Journal. Atlanta business and civic leaders have now recognized
the price of a disconnect between transportation and air quality
planning. They have worked with a new Governor to develop new regional
governance strategies for constructive problem-solving. This is a Clean
Air Act conformity success story in the making, helped by the March 2,
1999, court decision.On June 18, 1999, Federal, Georgia, and Atlanta
regional officials agreed to cease all funding for grandfathered
transportation projects that had not received funding approval prior to
the March court decision, pending adoption of a new transportation plan
that conforms with Clean Air Act requirements.
Not one penny of transportation funding is being lost to the metro
Atlanta region and its congressional districts due to the March 2 court
ruling.
Indeed, since March 1999, several hundred million dollars have been
redirected for FY99-00 from several dozen highways at the edge of the
region into projects that address air quality and transportation
problems, including buying clean buses, building park-and-ride transit
centers, HOV lanes, smart traffic signal and traveler information
systems, bridge and intersection reconstruction, and highway safety
projects.
The Federal Highway Administration and Federal Transit
Administration have issued guidance on the March 2 court ruling, most
recently on June 18, 1999. These agencies and EPA feel they can work
within the ruling.
DOT's list of regions and projects affected by the ruling indicates
a changing and shrinking list of metropolitan areas that face generally
short-term issues requiring problem-solving to resolve conflict between
the transportation and air quality plans. DOT and EPA are appropriately
seeking to head off future problems before they occur.
In conclusion, there is simply no need for a legislative fix in
response to the March 2, 1999 conformity ruling by the U.S. Court of
Appeals for the District of Columbia. We urge you to oppose S. 1053 and
any efforts to amend environmental laws through the appropriations
process.
Sincerely,
Rodger Schlickeisen, President,
Defenders of Wildlife.
Fred D. Krupp, Executive Director,
Environmental Defense Fund.
Ken Cook, President,
Environmental Working Group.
Brent Blackwelder, President,
Friends of the Earth.
Paul Hansen, Executive Director,
Izaak Walton League.
Deb Callahan, President,
League of Conservation Voters.
Phil Clapp, President,
National Environmental Trust.
John Adams, President,
Natural Resources Defense Council.
Robert K. Musil, Executive Director,
Physicians for Social Responsibility.
Carl Pope, Executive Director,
Sierra Club.
______
Factors Relevant to Determining Conformity for 20-Year Plans
The CAA Amendments of 1990 assigned responsibility to metropolitan
planning agencies in nonattainment areas to develop regional
transportation systems that limit emissions from motor vehicles to the
levels established as the maximum level that could be accommodated in
the air shed and still meet air quality standards. For this reason, the
regional transportation plan is to be designed to achieve the level of
emissions (i.e., the emission budget) determined by the State as
necessary for attainment of national ambient air quality standards
(NAAQS) in that air shed. In most large metropolitan areas, emissions
exceed the amounts that are necessary for attainment and must be
reduced. The need for emission reductions is a key factor in setting
motor vehicle emission budgets. Emissions above the levels needed to
attain air quality standards would cause harm to health and undermine
the purposes of the Clean Air Act.
Key factors related to setting emission budgets include--
1. Motor vehicle emission budgets are derived from the air quality
analysis that determines the amount of pollutants that may be emitted
into an urban air shed and still meet the national ambient air quality
standards. Once the total allowable emissions in an air shed is
determined, actual emissions must be reduced to that level. The amount
of emissions allowed in an air shed to meet any particular air quality
standard is controlled primarily by local atmospheric conditions, and
therefore is not likely to change in the future.
2. Once the total amount of emissions allowed in an air shed is
determined, the role of the implementation plan is to limit the amount
of emissions from sources in the air shed. The motor vehicle emission
budget limits the total emissions from highway vehicles in the air
shed.
______
Questions and Answers About Conformity
prepared by environmental defense fund, july 14, 1999
Question: What are the pollution and health costs related to
transportation? Isn't the air getting cleaner?
Response: Cars and trucks still account for 30 to 50 percent of the
pollution that forms smog (VOC and NOx) in a large share of America's
more seriously polluted regions and they account for a substantial
share of small particle pollution that causes serious health problems
in millions of Americans. Overwhelming scientific evidence points to
the need for further reductions in Nitrogen Oxides (NOx) of 60 percent
or more to reduce health-threatening ozone, acid rain, and water
quality problems. Although new cars and trucks are cleaner by far than
they used to be for VOC and CO, the emissions of NOx and PM (including
re-entrained road dust) related to motor vehicles have dropped little
since the 1990 Clean Air Act was passed. Cleaner vehicles have been
offset by the rapid rise in vehicle miles of travel (VMT), especially
in high growth areas like Atlanta or Las Vegas, where 6 to 13 percent
annual increases in VMT are the trend. Careful attention is needed to
assure that additional driving that is spurred by expanded roads won't
prevent attainment and maintenance of air quality. Conformity requires
attention to impacts on air quality before Federal funds are committed
to building projects.
Question: Won't technology solve all these problems?
Response: Technology is vital, but not the whole answer to these
problems. Large, cost-effective air pollution reductions will come from
cutting sulfur in motor fuels and adopting Tier II emission standards
for cars and trucks, as recently proposed by EPA.
But national emission controls cannot offset all the emission
increases caused by VMT growth in the fastest growing regions. In
America's fast growth regions, strategies that reduce VMT growth can
make low cost contributions to timely attainment and maintenance of
healthful air quality, offering substantial benefits beyond clean air.
These strategies include smart growth that renews existing communities
and incentives and investments that improve transit, walking,
bicycling, ridesharing, and telecommuting. A number of studies have
shown these strategies together can provide additional reductions of 15
to 25 percent in VMT, hours of vehicle travel, and emissions relative
to automobile-dependent sprawl development over the 20 year horizon of
long-range transportation plans.
Question: What is transportation conformity and why is it
important?
Response: Under the 1990 Clean Air Act (CAA), state implementation
plans (SIPs) for achieving healthful air quality in polluted areas
establish emission budgets for mobile sources (e.g., cars and trucks),
stationary sources (e.g., powerplants and factories), and area sources
(e.g., paints, agriculture), including control strategies for
controlling emissions from each. Trade-offs can be negotiated between
control of various sources, encouraging exploration of the lowest cost
means for timely attainment. The CAA requires short-term transportation
programs and long-term (20 year) transportation plans to conform to
these emission budgets so that new transportation approval, acceptance,
and funding decisions will not violate the SIP or otherwise delay
timely attainment of air quality.
Question: What is the conflict over conformity grandfathering?
Response: The 1990 CAA exempted old transportation projects from
the new conformity requirements for 3 years as the new law took effect.
Highway agencies misused this narrow exemption, creating a rolling
grandfathering process to exempt old road projects without any time
limit from the conformity requirements so long as some small progress
was made on the project every 3 years. The US Court of Appeals agreed
with EDF in March 1999 that the CAA requires project and plan approval,
acceptance, and funding decisions to conform with SIPs as these
decisions are made. Past reviews are not an adequate basis for current
decisions, as the air pollution problems, plans, control strategies,
and knowledge of the effects of projects and plans changes over time.
The road builders are now seeking to reopen this loophole so they can
continue to build the huge pipeline of old road projects without
conformity review for 15 years or more after the 1990 CAA was passed.
The June 18, 1999, DOT conformity guidance sets up the Plans,
Specifications, and Estimates (PS&E) agreement as the point when road
projects are grandfathered, instead of the Federal Record of Decision
(ROD), which was the point in the process when grandfathering was
permitted under the overturned EPA regulation. Why is the PS&E point
any more legally valid than the ROD as a point for allowing
transportation projects to proceed regardless of their air quality
consequences?
Section 106 of TEA-21 governs project approval and oversight,
providing for the submission by each State transportation department of
plans, specifications and estimates for approval by the Secretary for
each proposed project. It provides for formal project agreements
between these parties which ``shall be deemed a contractual obligation
of the Federal Government for the payment of the Federal share of the
cost of the project.'' (Sec.106 (a)(3)).
Clean Air Act conformity applies, by 176(c)(2)(C), to actions
related to project approval, acceptance, and funding.
When a project completes its ROD, there are still further approval,
acceptance, and funding steps that must be taken by the state and
Federal agencies, most notably, and finally, at the point of the PS&E
approval and project agreement, which thereby constitutes the point
beyond which no further conformity review is required.
Question: Will the court decision stop road construction, hurting
jobs and economic growth?
Response: The road builders have grossly exaggerated and
misrepresented the effects of the March 1999 court decision. No road
projects have been stopped permanently by conformity constraints. In
most regions where conformity problems have surfaced, they have been
resolved in a matter of several months through interagency
consultations between highway and air agencies when the transportation
and air quality plans come into conflict. In metro Atlanta, the area
with the majority of affected road projects to date, not a penny of
Federal funding has been lost to the region or its congressional
districts. Many road projects continue under construction. And dozens
of road improvements for highway safety, bridge reconstruction,
intersection improvement, smart traffic signals, HOV lanes, park-and-
ride lots, and pedestrian and bicycle improvements are exempt from
conformity funding curbs during the current lapse. Atlanta's economic
growth has been tarnished more by the declining quality of life related
to lack of transportation alternatives and long commutes, than by the
delay in 44 road projects that regional authorities expect to resume
once they have developed a conforming transportation plan, expected in
March 2000. TEA-21 authorized $218 billion, with all but about $6
billion in the form of flexible funds that can be spent on roads,
transit, or other transportation needs.
Question: Won't building bigger roads reduce air pollution and
congestion?
Response: There is overwhelming scientific evidence that in
metropolitan areas, traffic generally expands to fill the road space
that is provided for it, a phenomena called induced traffic. This
occurs as people travel farther, make new trips, change their mode of
travel, and relocate where they live, shop, or work. A 1999 study by US
EPA (consistent with many other studies in the US and abroad) found
that about 25 percent of growth in VMT is due to lane-mile additions,
assuming historical rates of growth in road capacity. In the short run,
every added lane mile generates new traffic that uses up 30 to 60
percent of the additional capacity. In the long run, between 70 to 100
percent of the added road capacity is used up by induced traffic.
This induced traffic produces added congestion and air pollution
roughly proportional to the amount of new traffic.
Question: Won't wider roads improve highway safety and save lives?
Will conformity delay highway safety projects?
Response: Highway builders argue that because the accident rate per
mile driven on 4-lane divided highways is lower than on 2-lane
highways, making all roads wider will improve safety. This is a
fallacy. With good highway design and traffic management, smaller roads
that operate at lower speeds can be as safe or safer than high speed
roads. Improved safety usually comes from reducing traffic speed
differentials between different users of the same road, or providing
more effective separation of different classes of road users, such as
pedestrians, bicycles, cars, and heavy trucks. While the accident rate
may be higher on slow speed arterial roads with a variety of traffic
and frequent driveways, with proper speed and access management, these
roads have lower fatality rates per traveler than many high speed
highways, where less frequent accidents more often result in
fatalities. True highway safety projects are exempt from funding
constraints under conformity.
Question: Why can't road projects that got Federal environmental
approvals simply proceed without further review? Why test them again
for conformity?
Response: It is common practice in the environmental review process
for highway projects under the National Environmental Protection Act
(NEPA) to declare in an environmental impact statement or environmental
assessment that the project was at some point in the past a part of a
conforming Transportation Improvement Program or Regional
Transportation Plan and to do no further analysis of the air quality
effects of the project. There are many projects conceived of in the
1960's, 1970's, or 1980's, for which funds have not yet been found in
the late 1990's to begin construction.
Many such projects were approved as part of a regional build/no-
build conformity analysis done in the early and mid 1990's, evaluating
only VOC emissions, using less rigorous analysis models than available
today. It is only in the past 18 months that many regions have
submitted attainment SIPs with mobile source emission budgets against
which the transportation plan emissions could be examined.
As analysis models get better, as emission budgets are refined, and
as control strategies for attainment are tested for their ability to
deliver real emission reductions, it is essential that new funding
decisions that could create a stream of new and higher long-term air
pollution emissions be made in light of the best current information.
Otherwise, the pollution cleanup costs for sprawl inducing new highways
will simply be imposed on everyone else but the road builders.
Why does grandfathering undermine local control and decisionmaking
in transportation?
Once a project is ``grandfathered,'' the state and Federal
operating agencies can expend the funds allocated to that project even
if the Metropolitan Planning Organization (MPO) decides that those
funds are needed to implement transit or VMT-reducing measures to meet
air quality budgets.
In areas where conformity has lapsed, such as Atlanta, all funds
for 6 years worth of projects were committed to projects that would
worsen air quality.
No funds were available to the MPO to remedy the exceedance of
emission budgets.
Only the decision of the U.S. Court of Appeals restored the
authority of the MPO to re-allocate funds from ``grandfathered''
projects to alternatives that would reduce mobile source emissions.
3. Once the maximum allowable emissions in an air shed is
determined, motor vehicle emissions may be allowed to increase only if
a) some of the allowable emissions have not been allocated to other
sources, or b) emission reductions are required from other sources.
4. Current EPA conformity regulations require that the once a share
of the total allowable emissions in an air shed have been allocated by
the State to mobile sources, that amount serves as the area's future
motor vehicle emission budget for transportation planning purposes.
Thus the transportation system must continue to meet the motor vehicle
share of allowable emissions in the air shed after the NAAQS is
attained in order to consistently meet and maintain safe levels of air
quality.
5. All interested stakeholders understand that once the motor
vehicle budget is set, it will govern the development of regional
transportation systems indefinitely into the future, and not just until
the attainment deadline. For this reason, some cities (e.g., Denver)
have adopted expanding budgets that increase in future years to
accommodate VMT growth.
6. National programs to reduce motor vehicle emissions such as Tier
II tailpipe standards, sulfur-in-fuel standards, reformulated gasoline,
and heavy-duty diesel program, reduce total motor vehicle emissions in
an air shed. MPOs are automatically given credit for these reductions
through EPA's motor vehicle emission factors used by MPOs to estimate
conformity with regional motor vehicle emission budgets.
7. There is no need to change the motor vehicle emission budget to
accommodate growth in an area unless local VMT growth causes emissions
to grow faster than national emission control programs (e.g., Tier II,
sulfur-in-fuel standards, reformulated gasoline, heavy-duty diesel
program) reduce motor vehicle emissions. Most nonattainment areas
expect motor vehicle emissions to decline until 2020 because of
proposed Federal emission control programs. Only a small number of fast
growing areas will need to adopt local controls or VMT growth
strategies to meet motor vehicle emission budgets.
8. Local control measures to reduce motor vehicle emissions or slow
VMT growth are available options to meet motor vehicle emission
budgets. There is no evidence that any area is incapable of identifying
available measures needed to meet motor vehicle emission budgets.
9. Current EPA conformity regulations allow States to enlarge the
motor vehicle emission budgets within a nonattainment area to
accommodate greater emissions from motor vehicles either by a)
allocating to the motor vehicle budget emissions not previously
allocated to other sources, or b) requiring corresponding emission
reductions from other sources when the maximum allowable emissions in
the air shed have been allocated. Nothing in the current program
prevents states from allocating additional emissions to motor vehicles
as long as total emissions in the air shed are not increased above the
maximum levels needed for attainment and maintenance of the NAAQS.
__________
Statement onf Jack Kinstlinger, American Road and Transportation
Builders Association
Good morning Mr. Chairman and members of the committee. I am Jack
Kinstlinger, chairman of the board of KCI Technologies, Inc., a
transportation planning and design firm based in Hunt Valley, Maryland.
I am here representing the American Road & Transportation Builders
Association (ARTBA), which I am proud to serve as its Northeastern
regional vice chairman. ARTBA, which has 5,000 members from both the
public and private sectors, provides a consensus voice here in
Washington for the $160 billion per year U.S. transportation
construction industry.
We deeply appreciate this opportunity to share our thoughts with
you on Clean Air Act (CAA) transportation conformity issues. I would
like to say at the outset that ARTBA shares your interest in assuring
that all Americans breath clean air. We are not here today to suggest
that the Clean Air Act needs a radical overhaul. We would, however,
like to suggest some badly needed ``fine-tuning'' of Federal law that
will not compromise public health from a clean air perspective, but
will improve the efficiency of making environmentally sound and needed
transportation investments.
Our members design and build the transportation infrastructure-
highways, transit systems, railways, waterways and airports-that give
Americans choice in how they travel. And with proper investment and
planning, an integrated transportation network can help reduce traffic
congestion that contributes to air pollution. And it is fact that
highway improvements can prevent injuries and save lives. We believe it
is long past time that transportation investments be viewed at the
Federal level from a broader public health perspective.
Conformity requirements and regulations have an enormous impact on
the ability of state and regional governments-and our members-to
provide, in a timely manner, highway and mass transit capital
improvements that are necessary to address public safety concerns,
support economic growth and alleviate time and energy-wasting,
pollution creating traffic congestion.
I have had extensive personal experience dealing with the
transportation planning issues as the deputy secretary of planning for
the Pennsylvania Department of Highways, executive director of the
Colorado State Department of Highways Department, and as chairman of
the Transportation Research Board's conferences on Statewide
Transportation Planning and Moving Urban America.
The good news on the clean air front is that the conventional view-
that there has not been much progress on air quality, that increased
auto use is the culprit, and that controlling auto use is the solution-
is wrong. U.S. Environmental Protection Agency (EPA) data clearly show
that the nation's air is much cleaner today than it was in 1970 when
the original Clean Air Act was adopted. And the transportation sector
has been at the forefront of this success story.
Despite a 125 percent increase in motor vehicle travel in the U.S.
since 1970, there has been a significant reduction in every
transportation-related criteria emission. Lead emissions have been
eliminated. Motor vehicle emissions of the precursors of ground-level
ozone, volatile organic compounds (VOC) and carbon monoxide (CO), have
been reduced 58 and 40 percent, respectively. Motor vehicle particulate
matter (PM10) emissions are down 38 percent. And oxides of
nitrogen (NOx) emissions have also been reduced.
Several charts attached illustrate the progress that has been made.
These improvements will get even better well in the future as ever
cleaner vehicles replace older, dirtier ones. The proposed Tier 2 motor
vehicle emissions standards and gasoline sulfur control requirements-
both of which ARTBA supports-will also have major, positive impacts on
air quality without reducing the mobility of the American public.
According to the U.S. Environmental Protection Agency (EPA), these
two developments alone could reduce NoX emissions by nearly 800,000
tons per year by 2007 and 1.2 million tons by 2010. By 2020, EPA
projects NOx reductions double that amount-despite increased auto
usage.
The Clean Air Act provisions, which forced the new technology to be
installed in individual automobiles, have worked well.
But the fact is, Federal transportation conformity regulations have
had very little to do with these dramatic improvements in air quality.
The Clean Air Act Amendments of 1990 reflected conventional wisdom-
that reducing auto use is a primary solution to meeting Federal air
quality standards. The transportation conformity requirements were thus
initiated to help force a shift in Federal investment from highways
toward mass transit infrastructure in and around urban/suburban areas.
The theory behind conformity is that a state or regional
transportation plan or program can be readily modified to conform with
air quality targets by simply adding projects believed to substantially
reduce emissions-such as the addition or extension of transit services-
or by deleting highway projects.
Nine years later, however, that theory has been proven false.
Research by the EPA, U.S. Department of Transportation (USDOT) and
others over the past 10 years has conclusively demonstrated that
infrastructure mix has a minimal impact on regional air pollutant
emissions.
Clean Air Through Transportation: Challenges in Meeting National
Air Quality Standards, a joint report from the EPA and USDOT, issued in
August 1993, articulates this point using ``real world'' experience
from California:
``For both San Diego and Los Angeles, the most capital-intensive
investments resulted in the smallest percentage decreases in emissions.
For example, a 20-mile extension of San Diego's light rail line is
expected to reduce HC and CO emissions (from mobile sources) by less
than 0.4 percent and 0.6 percent, respectively. Similarly, construction
of an extensive rail transit system in southern California is expected
to reduce HC emissions by about 1 percent and CO emissions by 3
percent, even in conjunction with area-wide adoption of measures to
increase its use.
``Another study by the Metropolitan Transportation Commission, San
Francisco's MPO, showed that an $11 billion investment in
transportation initiatives will yield a 0.9 percent and 0.8 percent
reduction in CO and HC emissions, respectively. San Francisco's
investments were primarily composed of new transit lines, HOV lanes and
local arterial improvements. The analysis showed little difference
between large mass transit projects and large highway projects.
[Emphasis added]
``The low projected emission reduction is unsurprising. San
Francisco and many other nonattainment areas have massive
transportation infrastructures already in place. Further investment,
even $11 billion worth, only marginally changes the existing
infrastructure and consequently has a marginal impact on emissions as
well.'' [Emphasis added]
These vanishingly small air quality impacts, we believe, are
dwarfed by the adverse public health and safety consequences of
delaying or preventing needed improvements to our transportation
system.
I'd bet that most members of the public, the media and the Congress
with an interest in clean air or transportation conformity assume that
when a community fails their conformity determination, it is because
emissions are rising and air quality is worsening. If that were true,
it would certainly be hard to argue that the transportation sector
shouldn't be required to do something more to improve air quality.
But that's not what is happening at all with conformity when a
community fails its conformity determination.
Section 176 (1)(A) and (b) of the Clean Air Act defines conformity
simply as a match between the mobile source emissions budget in a State
Implementation Plan (SIP) and what the mobile sector is producing-or
projected to produce.
All SIPs show continued reductions in mobile source emissions, at
least through 2010. Conformity failure simply means that mobile sector
emissions are not projected to decline quite as fast as the state SIP
says they should. These projections, of course, are based on models
whose uncertainties could overwhelm any projected emissions difference.
The other problem is that states make a political decision and set the
mobile source emissions budget too tight. Why? To lessen the emissions
reduction burden on stationary sources, which, by the way, have not
reduced their overall emissions since 1970 to the same extent the
mobile sector has.
Conformity needs to be redefined. Federal law should not be forcing
a tradeoff between transportation improvements and non-transportation
energy use and business activity.
The law should also acknowledge that the computer modeling used to
determine short- and long-range (20 year) mobile source emission
projections used in SIPs is an inexact science.
The conformity ``black box'' emission projections are an exercise
in fantasy. Federal conformity requirements are forcing state and local
governments to go through long and costly modeling exercises that are
based on nothing more than guesses.
No one knows with any degree of certainty what national, state and
local economies will be 12 to 20 years from now. We can guess, but we
don't know. We can guess, but we don't know, what a state or region's
demographics will look like in 2020.
These are the types of inputs, however, that go into the computer
modeling that determines transportation conformity within a SIP.
Compounding the problem, the models don't account for new, cleaner
automotive and motor fuel technologies that we know are on the horizon
and are going to have a major impact on future mobile source emissions.
These problems could be meaningfully addressed, if Federal law was
fine-tuned to give state and local governments a five to 10 percent
``margin of error'' allowance on their mobile source emissions
projections used in SIPs. This would acknowledge-without compromising
public health from an air quality perspective-the inherent ``guesses''
in conformity modeling.
With this change, we would not be talking about transportation
conformance failures. There would be very few. Needed highway and
transit improvement projects would not be needlessly delayed or
stopped. And air quality improvements in the transportation sector
would still continue at the same rate they would have otherwise. It
would be a ``win-win'' situation.
Unfortunately, the ``Catch 22'' nature of the current CAA
transportation conformity rules is being manipulated by a small
minority who are philosophically opposed to highway improvements to
delay or stop them. Their usual vehicle is the court system.
They challenge common-sense rules designed to recognize that
government bureaucracies can't always move fast enough to meet rigid
deadlines-particularly when those opposed to progress use all available
opportunities to slow the administrative process down.
The tragedy is that delaying environmentally sound highway
improvements hurts and kills people.
According to U.S. Department of Transportation research, poor road
conditions or obsolete road and bridge alignments are a factor in
12,000 highway-related deaths each year. That's four times the number
of Americans killed in accidental fires and a third more than die
annually of asthma and bronchitis combined.
How many more die needlessly because congested road conditions
impede emergency vehicles? Those are public health issues that should
not be ignored.
The March 2, 1999, Federal court decision in Environmental Defense
Fund vs. EPA (EDF vs. EPA) is a case in point. And, as we have already
seen in Atlanta, Georgia, Federal agency application of this ruling
will cause unnecessary delays-perhaps even permanently stop-
environmentally sound highway and transit projects from moving forward.
In Atlanta, 44 of 61 highway projects that had met every
environmental test and had received final approval are now in limbo
because the area has a lapsed SIP. The only reason these projects are
on hold-or in doubt-is because two Federal judges inferred an intent on
the part of Congress that was contrary to a common sense EPA rule.
The March 2 decision struck down an EPA rule that allowed highway
projects that had already passed every environmental test to proceed
even if, at some point in the future, there was a lapse in SIP
approval, or a determination of conformity failure.
EPA had it right in 1995, when it proposed the so-called
``grandfathering'' rule. The agency's rationale is articulated in its
arguments to the court in EDF vs. EPA asking the court to affirm its
rule:
``EPA's rule reflects its rational judgment that Congress intended
a more reasoned approach to transportation planning during periods in
which there is no applicable SIP, that Congress intended that there be
an attempt to balance the general pollution-reduction requirements of
the Act with the needs of state and local planning organizations for
certainty and finality in their transportation planning processes. 42
U.S.C. @ 7506(c)(2). [EDF v. EPA, Case No. 97-1637, Respondents' Brief,
June 10, 1998, page 30.]
``EPA explained that it `has always believed that there should only
be one point in the transportation planning process at which a project-
level conformity determination is necessary. This maintains stability
and efficiency in the transportation planning process.''' [Emphasis
added. EDF v. EPA, Case No. 97-1637, Respondents' Brief, June 10, 1998,
page 36.]
We hope the agency still strongly believes that it is in the public
interest to maintain stability and efficiency in transportation
programs and that these programs not be placed in ``double jeopardy''
due to administrative delays.
We are very disappointed that the Administration did not appeal the
March 2 decision in defense of its rule.
The USDOT and EPA told us they feared a loss of an appeal could
have ``worsened'' the situation for highway approvals in areas with a
lapsed SIP. We disagreed with that assessment from both legal and
practical standpoints.
We are now dealing with the consequences of that decision. The
guidance the EPA and U.S. DOT issued May 14 and June 18 to their field
offices for compliance with the March 2 decision, in our opinion,
provides a recipe for delay-particularly for new highway projects.
The guidance essentially says that EPA is going to tighten up its
SIP administrative review and approval process and make decisions in a
more timely manner. History suggests otherwise.
Since 1997, the agency has completed 34 SIP adequacy reviews,
approving nearly two-thirds.
EPA tells us that they currently have 21 SIP submissions pending
for adequacy review. Under the guidance sent out May 14, EPA said that
it would complete reviews on these SIPs within 90 days of submission.
The public comment period for the 21 pending submissions will be
completed this month.
We are extremely skeptical that they can meet that deadline, given
the expanded workload.
EPA, of course, does not control all of the factors that can result
in a SIP lapse. Local planners must make timely submissions in order
for EPA to act. The guidance is silent on this subject. One wonders how
EPA and USDOT plan to speed up the local process.
The guidance also does nothing to address the problem of delays
inevitably brought by lawsuits filed by project opponents.
The ``bottom line'' is that the March 2 decision in EDF vs. EPA,
made a bad situation even worse. We urge the Congress to make a
``surgical'' change to the Clean Air Act that makes clear that EPA's
``grandfathering'' approach, indeed, reflected the desire of Congress
to balance environmental protection with the need to make timely and
final decisions on environmentally sound, needed transportation
improvement projects.
We support a legislative remedy like S. 1053, which has been
introduced by Sen. Bond. This approach would simply take the conformity
process back to where it was on March 1, 1999, before the ruling in EDF
vs. EPA.
Such an action will have no negative impact on public health. To
the contrary, we believe it will prevent some injuries and save lives
by ensuring that needed highway safety improvements are not
unnecessarily delayed by administrative inefficiencies.
That completes our comments. Again, thank you, Mr. Chairman and
members of the Committee, for asking us to participate in this hearing.
I would be happy to try to answer any questions you might have.
Statement of Brian A. Mills, Commissioner, Cass County, Missouri, on
behalf of the Association of Metropolitan Planning Organizations
Mr. Chairman and Members of the Senate Environment and Public Works
Committee, I am Brian Mills, Commissioner for Cass County, Missouri. I
am submitting written testimony at the invitation of Senator
Christopher ``Kit'' Bond, U.S. Senator for the State of Missouri, on
behalf of the Association of Metropolitan Planning Organizations of
which I am Chairman of the Board of Directors. I want to thank you and
Members of this Committee for holding this hearing on transportation/
air quality conformity, an extremely complex and challenging issue to
the transportation and environmental community.
AMPO represents the interests of Metropolitan Planning
Organizations, which are regional transportation planning
organizations, and assists them in developing plans for multi-modal
transportation systems that address issues of air quality, welfare
reform and growth. AMPO is a program of the National Association of
Regional Councils (NARC). NARC represents the regional councils of
governments, regional planning and development districts, regional
transportation planning organizations and other groups that foster
local cooperation and coordinate the delivery of Federal and state
programs which address cross-cutting economic, environmental, equity
and growth challenges.
I would like to begin by commending the work of the Senate
Environment & Public Works Subcommittee on Transportation and
Infrastructure. The series of hearings held by the Subcommittee on the
implementation of the Transportation Equity Act for the 21st Century
(TEA-21) has highlighted the uncertainty created by the March 2
decision of the U.S. Court of Appeals for the District of Columbia
regarding transportation/air quality conformity. That decision, which
overturned key provisions of the U.S. Environmental Protection Agency's
third set of transportation conformity amendments, will affect all non-
attainment areas. The decision's elimination of the ``grandfathering''
provision in the conformity regulations means that any in non-
attainment areas where transportation conformity has lapsed, regionally
significant projects that are federally funded, as well as most non-
federally funded projects, cannot proceed regardless of how far along
in the project development process they are. In other words, projects
can only proceed if hill commitment for funding, as defined by both the
Federal Highway Administration and Federal Transit Administration, has
been made. In addition, all areas with SIPs that have lapsed because
transportation emissions budgets have not been approved must use the
Build/No Build test to move projects forward. Despite broad concern
within the transportation and environmental communities that the Build/
No Build test is seriously flawed, the March 2 decision would apply
this test in cases of lapsed SIPs until objections to a SIP's emissions
budget have been rectified. Because of earlier concerns about the
Build/No Build test. the third set of conformity regulation amendments
in 1996 replaced this test with a requirement to adhere to mobile
source emissions budgets.
We believe the passage of Senator Kit Bond's legislation S. 1053
will rectify the problems created by the March 2 court decision. The
legislation will codify into law the transportation conformity
regulations established by U.S. EPA prior to the March 2 Circuit Court
decision and restore the necessary stability and flexibility to a
complex and rigid set of regulations. This is essential for ensuring
consistency and continuity to the transportation planning and
programming development process. In addition to this testimony, we have
provided the committee a copy of a joint letter from the National
Association of Regional Councils and the Association of Metropolitan
Planning Organizations supporting Senator Bond's transportation
conformity legislation.
While Senator Bond's legislation begins the difficult task of
dealing with the issue of transportation conformity, we would like to
call to the committee's attention an even more pervasive conformity
issue: the time-horizon mismatch between State Implementation Plans
(SIPs) for air quality improvement and transportation plans developed
by MPOs. This issue has been raised as a priority by AMPO members and
by other nationally significant transportation organizations, such as
the American Association of State Highway and Transportation Officials.
The Clean Air Act Amendments of 1990 (CAAA) defined
``transportation/air quality conformity'' and the U.S. Environmental
Protection Agency subsequently issued extensive regulations outlining
the conformity process. As part of this process, all non-attainment
areas were given a deadline by which they must reach attainment of
their air quality goals, a date determined by air quality severity.
Once an area reaches its attainment goal, the conformity process
dictates that these same areas demonstrate their ability to stay ``in
attainment'' through a ``maintenance plan'', which extends 10 years
beyond the attainment date. A year after the CAAA, the Intermodal
Surface Transportation Efficiency Act of 1991 (ISTEA) for the first
time mandated MPOs to develop a 20-year long range transportation plan
and required a demonstration of conformity between these transportation
plans and air quality goals as outlined by the 1990 CAAA and U.S. EPA.
Under this scenario, the current conformity rule has created a mismatch
of 10 years or more between the time horizon of the State
Implementation Plans (SIPs) for air quality improvement and the 20-year
transportation plans developed by MPOs.
The significance of the time-horizon mismatch is that the SIP's
attainment or maintenance year budgets for future mobile source
emissions are capped at the level indicated in the attainment or
maintenance plan. This denies local elected officials the ability to
negotiate tradeoffs among stationary, area and mobile source emissions
for the purpose of demonstrating conformity for the out-years (the
remaining 10 years or more of the long range transportation plan), thus
placing the burden for attainment solely upon transportation-related
measures.
Our suggested method from resolving this problem is to require that
the long-range transportation plan only demonstrate conformity with the
operative SIP emissions budget. This suggested remedy would greatly
assist Metropolitan Planning Organizations. We have included with our
testimony our position paper on this issue as well as a proposal for
resolving this problem, which includes suggested legislative language
to amend the MPO planning provisions in both the highway and transit
laws.
On behalf of the Association of Metropolitan Planning
Organizations, I would like to thank the Chairman and the Committee
members for the opportunity to address the issue of transportation/air
quality conformity. We stand ready to participate and support you and
the Committee's efforts to resolve this very complex and challenging
issue.
__________
[From the Atlanta Journal-Constitution, March 5, 1999
Dead End for State's Road Builders
Georgia's road builders have shown a stubborn ability to ignore the
writing on the wall. On Tuesday, however, a Federal appeals court in
Washington hung out a stop sign so large that even Georgia can't ignore
it.
Before that ruling, metro Atlanta already faced the future loss of
billions of dollars in Federal transportation aid because of dirty air.
The only silver lining in that dark cloud was its ability to at least
complete construction on $700 million on road projects under way in
some form or another. The court ruling, however, may take away even
that silver lining. In fact, an attorney for the Environmental Defense
Fund, which filed the suit in question, called Atlanta the key example
in the court's finding. The judges ruled that the Federal Environmental
Protection Agency had exceeded its legal authority by granting Atlanta
and other cities exceptions to allow them to keep building highways
even after the cities had failed to comply with the Clean Air Act. The
judgment could have an effect on two other lawsuits filed against local
road projects. Those lawsuits, by environmental groups, also claim that
State and Federal officials exceeded their legal authority in allowing
continued funding of 61 road projects in metro Atlanta.
The message for Atlanta and other cities couldn't be more clear:
Stop using dodges to get more money to build roads that only add to
poor air quality. Come up with transportation plans that confront the
problem directly by lowering the number of cars on metro roads.
The State Department of Transportation has long had the power to
divert road-building money into transportation alternatives that would
benefit the environment, but until recently it has shown little
inclination to do so. The Atlanta Regional Commissions on the other
hand, has had the inclination but lacks the power.
Governor Roy Barnes' bill creating a Georgia Regional
Transportation Authority is the best hope for finding solutions that
will make the air safe to breathe and bring the area into compliance
with Federal law. The state House of Representatives approved the bill
overwhelmingly on Thursday, and the State Senate approved it last
month, so progress is occurring.
Gradually, the realization is sinking in that times have changed.
Georgia cannot continue to pave and pour concrete without concern for
the impact on the environment and human health. This week's Federal
court ruling is just another shove in the right direction.
______
[From the Atlanta Journal-Constitution, March 4, 1999]
Ruling May Halt Metro Roads
judges reject clean air exception
A Federal Court ruling in Washington could block most or all of
metro Atlanta's 61 ``grandfathered'' road projects, which were
permitted after the region fell afoul of the Clean Air Act last year.
Ruling in a lawsuit by the Environmental Defense Fund against
Federal environmental, and transportation, agencies, a three judge U.S.
Court of Appeals panel on Tuesday declared illegal the regulations that
permit Federal agencies to fund road projects in areas that violate
Clean Air laws.
The ruling is expected to have a major impact on $700 million worth
of metro Atlanta road projects. It also appears to give a powerful
boost to two separate lawsuits in Atlanta by local and national
advocacy groups, which argued that Federal officials allowed the
Georgia Department of Transportation to abuse the grandfathering
provision.
``My reading of the case is that it says all of the grandfathered
projects in the Atlanta region were illegally approved,'' said Wesley
Woolf of the Southern Environmental Law Center.
Asked if the ruling increases the likelihood he and his clients
will seek a court order to stop such projects from moving through the
pipeline, Woolf said, ``Yes.'' But he added that he hoped a settlement
could be negotiated first that would divert much of the road money to
alternatives to motorists' driving alone.
Attorneys with The U.S. Environmental Protection Agency and the
Federal Highway Administration said Wednesday that they still were
digesting the decision. The agencies have 45 days to decide whether to
appeal to the full circuit of judges. Top officials at the state
transportation department did not return telephone calls seeking their
reaction.
Under the Clean Air Act, Federal funds may be spent only on road
projects that are part of a metrowide plan that can be shown to stay
within limits on vehicle emissions. The Atlanta Regional Commission,
the area's planning agency and the Georgia Department of Transportation
have been unable to do that since 1995. The last plan expired in
January, 1998; no new road projects can receive Federal funds until the
region has a plan that improves the air
When Congress updated the Clean Air Act in 1990, it intended for
road building to come to a halt when metro areas fail to make progress
in meeting standards for healthful air. To protect taxpayers'
investments, Congress included a grandfathering provision that allowed
projects that were well along to continue to completion.
But the judges ruled Tuesday that Congress never envisioned that,
as happened in Atlanta, dozens of such projects would be compiled into
a new plan that was. never tested for its effects on air quality. Just
because a project had been part of a so-called conforming plan in the
past did not mean it was good for air quality, today, the judges wrote.
Atlanta, in fact, was the key test case cited in the suit, said
Robert, Yuhnke, the attorney representing the Environmental Defense
Fund in its lawsuit.
``Atlanta definitely is the poster child for the problem,'' said
Yuhnke, who is also representing the fund and others in one of the
Atlanta lawsuits.``During the oral argument in the case, the court
learned a lot about what was going on in Atlanta as an example of what
was wrong. They were very interested and asked a lot of questions about
the situation in Atlanta.''
The court's ruling means Federal transportation officials can't
sign off on funding for projects that aren't already under
construction, Yuhnke said. Only 14 of the Georgia projects have
received such approval, said Larry Dreihaup, director of the Federal
Highway Administration's Georgia division.
``The world as we knew it just ended in the business of
transportation,'' said Sam Williams, president of the Metro Atlanta
Chamber of Commerce. ``It calls out in an even louder voice the need to
get into conformity immediately. It puts even more at stake, and it
reinforces the need to have a regional authority that can get a handle
on these problems.''
Governor Roy Barnes has proposed the creation of a Georgia Regional
Transportation Authority as the final arbiter for transportation
decisions in the region.
Any road projects that are disqualified by the court ruling could
be put into the Atlanta Regional Commission's next plan, that plan
meets emissions standards. ARC Director Larry West has said his agency
aims to have a legally approved plan by spring of next year.
______
[From USA Today, June 18, 1999]
Atlanta Fights the Downside of Prosperity
(By Larry Copeland)
Atlanta.--Michael Popkin was born in the city and now owns a small
publishing company up the road in Marietta He remembers when Atlanta
moseyed, when folks rarely griped about traffic, when smog was a West
Coast concept.
Deborah Rucker recalls fondly when commuting from Hall County to
downtown was a breeze There was only one set of traffic lights in her
town and no one feared being late because of gridlock.
Ah, those pre-sprawl days.
Now, Popkin, 49, has settled into a house in the suburbs. He picked
the neighborhood partly because it would let him commute against
traffic But he worries that he's losing potential employees because
they don't want to face the daily trek to Marietta. He frets about his
health because of the brownish haze that tints the Atlanta sky.
Rucker, 51, finds she needs a trip to the family farm in rural
Georgia now and then, a quick fix of open spaces She says the daily
gridlock had become such a grind that she took a pay cut so she could
telecommute and work from home ``It is horrible,'' she says ``I just
didn't want to deal with it anymore.''
Popkin and Rucker don't know each other and don't have that much in
common. They're merely two Atlantans, two among 3.5 million, who have
seen their lives altered by suburban sprawl.
Across the nation, sprawl--growth designed primarily around
automobile access--has joined such perennials as crime and education as
quality-of-life issues that people care about passionately In last
fall's elections, voters in 19 states approved more than 70 percent of
ballot measures to protect and preserve sprawl-threatened green spaces,
says Phyllis Myers, president of State Resource Strategies, a
Washington, DC, consulting firm. Suburban voters increasingly are fed
up with sprawl's consequences, and businesses are worried that
gridlocked roads and long commutes are hurting their ability to attract
and keep employees.
Atlanta, where growth has been equated with success for decades, is
the nation's latest cautionary tale on the problems of sprawling
growth: traffic congestion' poor air quality and disappearing green
space.
``Certainly, Atlanta has become the poster child for sprawl,'' says
Edward Thompson Jr., senior vice president of American Farmland Trust
in Washington, DC ``Among those who work on these kinds of issues full
time, there is no question that Atlanta is sort of Exhibit A.''
The region doesn't like that label. So it's launching an ambitious
effort to control sprawl that, if it succeeds, could be a blueprint for
other regions. The effort is anchored by a new regional transit
authority that is to have unprecedented powers. The first members of
the Georgia Regional Transit Authority, which Governor Roy Barnes
pushed through the Legislature in March, were sworn in last week.
They are to have nearly unlimited say on almost every aspect of
transportation in the region--from building and widening roads, to
creating a carpooling system, to building a new regional transit system
or coordinating existing ones They will be able to issue $1 billion in
revenue bonds and tap another $1 billion in general bonds. Their
rulings will affect zoning decisions. They even will have control over
new business sites.
GRTA, called Greta by Atlantans, is the new superagency expected to
be immune to the regional factionalism and political tampering that
hampered such initiatives in the past. Its decisions can be overruled
only by a three-quarters majority of local governments But such a vote
would risk losing Federal and state transportation money, because GRTA
has the final say over all expenditures of those funds.
Even with all that muscle, the new agency's success hinges on
convincing Atlantans to do what they have long rejected: Get out of
their cars.
Nobody expects that to be easy Atlanta has tried before, with
Metropolitan Atlanta Rapid Transit Authority (MARTA) But when MARTA,
which controls buses and subways in two counties, tried to influence
commuting habits of Atlantans, it was spurned ``It's going to be very
difficult,'' GRTA Chairman Joel Cowan says. ``We've got to get people
to take that first step toward getting out of their cars.''
He says GRTA likely will try to do that initially with a modest
plan that combines carpooling and low-polluting compressed natural gas
buses. ``That helps achieve the desired environmental impact, and it's
an easier step for that critical cultural change.''
Once Atlantans accept mass transit as a viable alternative, he
believes, they will be more receptive to traditional forms of mass
transit.
During the past decade, metropolitan Atlanta has grown faster than
any other city in the country, adding nearly a half-million out-of-
state residents since 1990 and stretching from 65 miles north to south
to 110 miles.
They're still coming.
Last year, in fact, the metropolitan area had three of the nation's
10 fastest-growing counties: Forsyth, Henry and Paulding, according to
the U.S. Census Bureau.
That growth has come a cost. Metropolitan Atlanta heads into the
21st century as an endless stretch of strip shopping centers, large and
small subdivisions and huge malls. Its rivers are among the nation's
most imperiled, and developers are clearing 50 acres of tree cover a
day.
But traffic is where sprawl gnaws hardest at the daily lives of
Atlantans. Drivers here endure the nation's longest commute--an average
daily round trip of 34 miles for every person in Atlanta. Dozens of new
road projects have been stalled because the region violates the Federal
Clean Air Act.
``What bothers me is when you look at the horizon and you see that
band of pollution,'' says Popkin, who grew up in northwest Atlanta in
the 1950's and 1960's and is the owner of Active Parenting Publishers
``When I was growing up, it was blue skies from horizon to horizon ``
Popkin's company, which develops videos and books for parenting
education courses, employs 20 people When a position comes open and he
tries to hire, he doesn't always get the person he wants. He points to
sprawl as a reason.
``Sometimes, when we're interviewing for a position, I've lost
candidates because Atlanta has gotten so big that if they live on the
other side of town, they say they don't want to commute all the way to
Marietta,'' he says.
When Popkin was growing up, he rode the bus from northwest Atlanta
downtown to Georgia Tech football games, where he sold Coca-Cola. ``It
seemed very, very easy to get around back then,'' Popkin says ``Atlanta
was much more self-contained. Sandy Springs (a suburb 20 miles north of
Atlanta) was considered way out.''
Now, a simple delay on one of the area's critical highways--I-85,
I-75, I-20, I-285--often stalls traffic across the whole region for
hours.
``The interstates are nothing more than local roads,'' says Jim
Chapman, executive director of Georgians for Transportation
Alternatives, a coalition of groups seeking public support for
alternatives to roads. ``You start to think, ``Why do we have to drive
so much to meet our daily needs?' It's just the way the area grew.''
In 1985, when Rucker moved back to Georgia from Broward County,
Florida, the population boom had only just begun She split her time
between Atlanta and Oakwood, out in Hall County, north of the city
``That was kind of a bedroom community of Atlanta, and the traffic
wasn't bad at all,'' she says. ``There was only one traffic light, and
that was when you got off the expressway. There was one bank, and no
hotels.
``Now there are six banks on one street and four or Eve motels What
used to be open space and open fields has now become strip malls.''
Eventually, Pucker quit commuting ``It just got to the point where I
couldn't take it anymore,'' she says. ``I just couldn't deal with being
stuck in that traffic anymore.''
Rucker and Popkin, like others here and in other areas that are
beginning to suffer sprawl problems, are watching closely to see what
Barnes and GRTA do. They have their fingers crossed.
Barnes, a veteran state legislator who took office in January, was
born and raised in suburban Cobb County, and says his awareness of
sprawl came gradually. ``There was no moment of epiphany,'' he says.
``But Cobb County, which used to be some 50,000 people, started to grow
in the 1960's and now there are more than 500,000.
``I saw the changes that occurred, and I knew that sprawl, as
opposed to planned growth was something we had to address, for air
quality and quality of life.''
``For the first time in my life, I'm thinking about whether I want
to stay, whether I want to remain here after retirement,'' Popkin says.
``I'm wondering what's Atlanta going to be like in 12 years, and
whether I'll want to still be here.''