<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:99907.wais]
CLEAN AIR ACT TRANSPORTATION CONFORMITY PROVISIONS CONTAINED IN H.R. 3,
``THE TRANSPORTATION EQUITY ACT: A LEGACY FOR USERS''
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ENERGY AND AIR QUALITY
of the
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MARCH 2, 2005
__________
Serial No. 109-11
__________
Printed for the use of the Committee on Energy and Commerce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
__________
U.S. GOVERNMENT PRINTING OFFICE
99-907 WASHINGTON : 2005
_____________________________________________________________________________
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------------------------------
COMMITTEE ON ENERGY AND COMMERCE
JOE BARTON, Texas, Chairman
RALPH M. HALL, Texas JOHN D. DINGELL, Michigan
MICHAEL BILIRAKIS, Florida Ranking Member
Vice Chairman HENRY A. WAXMAN, California
FRED UPTON, Michigan EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida RICK BOUCHER, Virginia
PAUL E. GILLMOR, Ohio EDOLPHUS TOWNS, New York
NATHAN DEAL, Georgia FRANK PALLONE, Jr., New Jersey
ED WHITFIELD, Kentucky SHERROD BROWN, Ohio
CHARLIE NORWOOD, Georgia BART GORDON, Tennessee
BARBARA CUBIN, Wyoming BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois ANNA G. ESHOO, California
HEATHER WILSON, New Mexico BART STUPAK, Michigan
JOHN B. SHADEGG, Arizona ELIOT L. ENGEL, New York
CHARLES W. ``CHIP'' PICKERING, ALBERT R. WYNN, Maryland
Mississippi, Vice Chairman GENE GREEN, Texas
VITO FOSSELLA, New York TED STRICKLAND, Ohio
ROY BLUNT, Missouri DIANA DeGETTE, Colorado
STEVE BUYER, Indiana LOIS CAPPS, California
GEORGE RADANOVICH, California MIKE DOYLE, Pennsylvania
CHARLES F. BASS, New Hampshire TOM ALLEN, Maine
JOSEPH R. PITTS, Pennsylvania JIM DAVIS, Florida
MARY BONO, California JAN SCHAKOWSKY, Illinois
GREG WALDEN, Oregon HILDA L. SOLIS, California
LEE TERRY, Nebraska CHARLES A. GONZALEZ, Texas
MIKE FERGUSON, New Jersey JAY INSLEE, Washington
MIKE ROGERS, Michigan TAMMY BALDWIN, Wisconsin
C.L. ``BUTCH'' OTTER, Idaho MIKE ROSS, Arkansas
SUE MYRICK, North Carolina
JOHN SULLIVAN, Oklahoma
TIM MURPHY, Pennsylvania
MICHAEL C. BURGESS, Texas
MARSHA BLACKBURN, Tennessee
Bud Albright, Staff Director
James D. Barnette, Deputy Staff Director and General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Energy and Air Quality
RALPH M. HALL, Texas, Chairman
MICHAEL BILIRAKIS, Florida RICK BOUCHER, Virginia
ED WHITFIELD, Kentucky (Ranking Member)
CHARLIE NORWOOD, Georgia MIKE ROSS, Arkansas
JOHN SHIMKUS, Illinois HENRY A. WAXMAN, California
HEATHER WILSON, New Mexico EDWARD J. MARKEY, Massachusetts
JOHN B. SHADEGG, Arizona ELIOT L. ENGEL, New York
CHARLES W. ``CHIP'' PICKERING, ALBERT R. WYNN, Maryland
Mississippi GENE GREEN, Texas
VITO FOSSELLA, New York TED STRICKLAND, Ohio
GEORGE RADANOVICH, California LOIS CAPPS, California
MARY BONO, California MIKE DOYLE, Pennsylvania
GREG WALDEN, Oregon TOM ALLEN, Maine
MIKE ROGERS, Michigan JIM DAVIS, Florida
C.L. ``BUTCH'' OTTER, Idaho HILDA L. SOLIS, California
JOHN SULLIVAN, Oklahoma CHARLES A. GONZALEZ, Texas
TIM MURPHY, Pennsylvania JOHN D. DINGELL, Michigan,
MICHAEL C. BURGESS, Texas (Ex Officio)
JOE BARTON, Texas,
(Ex Officio)
(ii)
C O N T E N T S
__________
Page
Testimony of:
Clifford, Michael, Director, Systems Planning Applications,
Metropolitan Washington Council of Governments, on behalf
of the Association of Metropolitan Planning Organizations.. 41
Holmes, Brian, Executive Director, Maryland Highway
Contractors Association, on behalf of American Road and
Transportation Builders Association........................ 59
Holmstead, Hon. Jeffrey R., Assistant Administrator for Air
and Radiation, Environmental Protection Agency............. 14
Liebe, Annette, Manager, Air Quality, Oregon Department of
Environmental Quality, Air Quality Division, on behalf of
State and Territorial Air Pollution Program Administrators
and Association of Local Air Pollution Control Officials... 45
Njord, John R., Executive Director, Utah Department of
Transportation, on behalf of American Association of State
Highway and Transportation Officials....................... 18
Nottingham, Hon. Charles D., Associate Administrator for
Policy, Department of Transportation, Federal Highway
Administration............................................. 8
Replogle, Michael, Transportation Director, Environmental
Defense.................................................... 57
Aditional material submitted for the record:
Holmstead, Hon. Jeffrey R., Assistant Administrator for Air
and Radiation, Environmental Protection Agency, response
for the record............................................. 70
Nottingham, Hon. Charles D., Associate Administrator for
Policy, Department of Transportation, Federal Highway
Administration, response for the record.................... 69
(iii)
CLEAN AIR ACT TRANSPORTATION CONFORMITY PROVISIONS CONTAINED IN H.R. 3,
``THE TRANSPORTATION EQUITY ACT: A LEGACY FOR USERS''
----------
WEDNESDAY, MARCH 2, 2005
House of Representatives,
Committee on Energy and Commerce,
Subcommittee on Energy and Air Quality,
Washington, DC.
The subcommittee met, pursuant to notice, at 3:20 p.m., in
room 2123 of the Rayburn House Office Building, Hon. Ralph M.
Hall (chairman) presiding.
Members present: Representatives Hall, Shimkus, Otter,
Murphy, Burgess, Barton (ex officio), Boucher, Waxman, Green,
Strickland, Capps, Solis, and Gonzalez.
Staff present: Mark Menezes, chief counsel for energy and
environment; Margaret Caravelli, majority counsel; Peter
Kielty, legislative clerk; and Michael Goo, minority counsel.
Mr. Hall. Okay. Thank you for your patience. The
subcommittee will come to order now, and without objection, the
subcommittee will proceed, pursuant to Committee Rule 4(e),
which allows members the opportunity to defer opening
statements for extra questioning time. I think they all
understand that.
The Chair recognizes himself for an opening statement.
Today, the subcommittee holds a hearing on the Clean Air Act
provisions contained in the Transportation Equity Act, a Legacy
for Users. These provisions, developed with our friends across
the aisle, are designed to simplify the conformity process,
while maintaining air quality benefits. I look forward to
learning from the panel the transportation conformity process,
and how the suggested changes to the conformity program will
further the development of transportation projects consistent
with our air quality goals.
I would like to welcome and thank our esteemed witnesses
for joining us today. All of you have taken your very valuable
time from your important responsibilities to help educate us
here today, and several of you have traveled great distances.
For your sacrifice and your time, we do thank you, and don't be
dismayed about a lack of attendance here. We are about to have
a vote, and several members have gone on to the floor, but they
will be back. But if they do not come back, you have the two
most important ones here now, in our opinion. But seriously,
what you say will, of course, be taken down, put into the
record, and all members will have copies of it. And that is the
basic reason for it, and then, we relate back to this testimony
when we write the act, and take our actions.
Our witnesses today represent folks that are involved and
are affected by the transportation conformity process itself.
The Honorable Jeffrey Holmstead of the Environmental Protection
Agency, and the Honorable Charles Nottingham of the Department
of Transportation and Federal Highway Administration joins us
as Federal partners in the conformity program. It is my
understanding that we also have Mr. Njord, Executive Director
of Utah Department of Transportation, with transportation
problems himself today. We welcome you to this panel, and thank
you for being with us.
I want to welcome those testifying on behalf of
organizations representing planners, air quality officials, and
road builders. These groups work together every day of the year
to ensure the continued development of our Nation's
transportation infrastructure, while protecting our air
quality, and it is a pleasure to have you today.
A symbol of American freedom is being able to flat drive
down the open road to any destination of one's choosing. It is
just that simple. As this country has grown, so too have our
roads and the number of vehicles on them. Will Rogers once said
that the way to pay for all of our transportation costs was to
require everybody's car to be paid for before they put it on
the highway. That might have worked back in the 1930's, but I
am not sure that that would work today. Recognizing that growth
might place some burdens on the environment, particularly the
air quality, the Clean Air Act established a process through
which the Environmental Protection Agency and the Department of
Transportation would work together to continue the expansion of
our Nation's roads while protecting air quality, and that is
the whole purpose.
I guess, however, the real purpose behind transportation
conformity is to ensure that the area's transportation
activities are balanced with the area's air quality goals. With
billions of dollars spent each year on transportation projects,
conformity serves as a check on this development. This check
and balance ensures that projects not only serve to keep our
Nation moving and our economy growing, but also protects our
Nation's air quality. While recognizing the merits of the
cooperative process established by the transportation
conformity program between the metropolitan planning
organizations and the State air quality officials in pursuit of
a common goal, we worked with our minority to craft the revised
transportation conformity language. The language reflects a
spirited collaborative effort and hours of work. The proposed
law increases the time for conformity determinations for
transportation plans and State transportation improvement
programs to 4 years. It is now 2 to 3, and this would increase
it to 4, thus easing the burdens placed on transportation
planners, and allowing for better coordinated demonstrations of
conformity.
Also, additions or substitutions of transportation control
measures used to control and reduce the emissions would no
longer trigger a new conformity determination or revision of
the applicable State implementation plan. The proposed
reduction synchronizes the planning horizons for long term
transportation plans with that of the State implementation
plans. A key feature of this adjustment in the planning horizon
timeframe is that the Metropolitan Planning Organization and
the air pollution control agency make the determination to
implement a shorter time horizon. Under the proposed law,
before the restrictions occur due to a conformity lapse, a 12
month grace period is permitted.
So I am gratified to see that this issue is one on which
this committee can work together, and I again look forward to
hearing from the conformity experts that are in front of us
here, and I want to thank you for all of your time, and we
welcome all of your views with respect to the current
conformity process, and especially, your opinions on the
proposed revisions to the conformity program. And at this time,
I recognize the gentlelady, Ms. Capps, for her opening
statement.
[The prepared statement of Hon. Ralph Hall follows:]
Prepared Statement of Hon. Ralph Hall, Chairman, Subcommittee on Energy
and Air Quality
The Subcommittee will come to order. Without objection, the
Subcommittee will proceed pursuant to Committee Rule 4(e), which allows
Members the opportunity to defer opening statements for extra
questioning time.
The Chair recognizes himself for an opening statement. Today, the
Subcommittee holds a hearing on the Clean Air Act provisions contained
in the Transportation Equity Act: A Legacy for Users. These provisions,
developed with our friends across the aisle, are designed to simplify
the conformity process while maintaining air quality benefits. I look
forward to learning from the panel the ins and outs of the
transportation conformity process and how the suggested changes to the
conformity program established by the Clean Air Act will further the
development of transportation plans, programs and projects consistent
with air quality goals.
I would like to welcome and thank our esteemed witnesses for
joining us today. Our witnesses represent folks involved in or impacted
by the transportation conformity process. The Honorable Jeffrey
Holmstead of the Environmental Protection Agency and the Honorable
Charles Nottingham of the Department of Transportation, Federal Highway
Administration join us as Federal partners in the conformity program.
I also want to welcome those testifying on behalf of organizations
representing transportation planners, air quality officials, and road
builders. These three groups work together each day to ensure the
continued development of our nation's transportation infrastructure
while protecting air quality. It is a pleasure to have you join us here
today.
A symbol of American freedom is being able to drive down the open
road to any destination of one's choosing or for that matter with no
particular place to go. As this country has grown so to have our roads
and the number of vehicles on those roads. Recognizing that this type
of growth may place burdens on the environment, particularly air
quality, the Clean Air Act established a process through which the
Environmental Protection Agency and the Department of Transportation
would work together to continue the expansion of the nation's roads
while protecting air quality. The purpose behind transportation
conformity is to ensure that an area's transportation activities are
balanced with the area's air quality goals. With billions of dollars
spent each year on transportation projects, conformity serves as a
check on this development. This check and balance ensures that projects
not only serve to keep our Nation moving but also keep our Nation's air
quality in good stead. Taking a cue from the cooperative process
established by the transportation conformity program bringing together
metropolitan planning organizations with state air quality officials in
pursuit of a common goal, we worked with our minority to craft the
revised transportation conformity language.
I favor a practical policy of simplifying things so as to make the
accomplishment of a goal more certain. To this end, in collaboration
with our Democratic counterparts on the Committee, we drafted the
provisions contained in H.R. 3 The Transportation Equity Act: A Legacy
For Users, which we are here to discuss today. The language reflects a
spirited collaborative effort and hours of work:
The proposed law increases the time for conformity determinations for
transportation plans and State transportation improvement
programs to 4 years thus easing the burdens placed on
transportation planners, and allowing for better coordinated
demonstrations of conformity;
Additions or substitutions of transportation control measures, used
to control and reduce emissions would not trigger a new
conformity determination or revision of the applicable State
Implementation Plan;
The proposed reduction in planning horizons synchronizes the planning
horizons for long term transportation plans with that of State
implementation plans. A key feature of this adjustment in the
planning horizon timeframe is that the Metropolitan Planning
Organization and the air pollution control agency make the
determination to implement a shorter time horizon; and
Under the proposed law, before the consequences of a conformity lapse
occur a 12-month grace period is permitted.
I am gratified to see that this issue is one in which this
Committee can work together on. Again I look forward to hearing from
the ``conformity experts'' and I want to thank you all for your time.
We welcome all of your views with respect to the current conformity
process and especially your opinions on the proposed revisions to the
conformity program.
Ms. Capps. Thank you, Mr. Chairman, for holding this
hearing to consider the Clean Air Act's conformity program, and
your nostalgia about the wide open spaces of Texas, and I grew
up in Montana, you know. We used to sing don't fence me in,
right? I don't know. Those days are gone forever, right?
Mr. Hall. I agree.
Ms. Capps. All right. I had hoped, and thank you,
witnesses, for being here today. I had hoped we would assert
the committee's jurisdiction over the air quality section of
the transportation bill. Clearly, this subject matter is one
that falls within the jurisdiction of this committee, and is
indeed worthy of examination, and I think we owe it to Chairman
Barton and Dingell, Ranking Member Dingell's efforts to address
some of the air quality issues contained in last session's
Senate transportation bill. The House bill, I believe, strikes
a better balance than S. 1072. While we have made great strides
reducing air pollution since Congress enacted the Clean Air
Act, much more remains to be done. When it comes to clean air,
our priorities should be simple, to cut air pollution that is
causing tens of thousands of premature deaths, creating heart
and lung problems in senior citizens, and giving too many of
our schoolchildren asthma.
And we must do it expeditiously. American families
shouldn't have to wait any longer for clean air, clear air. As
a public health nurse, I am very concerned about the impacts
that increased traffic and air pollution will have on public
health. With the House scheduled to reconsider transportation
legislation as possibly as much as $300 billion in new
transportation spending, a strong conformity program is needed
now more than ever. The conformity program helps to ensure the
Nation's transportation needs are satisfied without sacrificing
our health and the air we breathe, and I think this can be
done. Since its implementation, the conformity program has
proven to be a key tool used by transportation and air planners
to keep harmful air pollution in check. We should not eliminate
this crucial program, and we should not allow transportation
projects to go forward regardless of their impact on air
quality and on public health.
California, where I am from now, suffers from some of the
most serious air quality problems in the Nation. It is no
surprise that as our population increases, the level of
congestion on our highways and roads go up. For instance, in
many parts of our State, the total vehicle-miles traveled each
day has grown much faster than the rate of population growth.
The conformity program recognizes that States like California
will face serious challenges in the area of air quality and
transportation planning. Without careful forecasting, these
demands could overwhelm our ability to keep our air clean.
As we consider changes to the Clean Air Act, we must ensure
transportation choices contribute rather than undermine
achieving healthful air quality. Finally, although today's
hearing is not about this, I hope the committee will seek ways
to enhance our Nation's air quality also by promoting more
options to fight congestion through transit, through passenger
and freight rail, smarter development, better land use
planning, and other strategies. By providing better resources
to States and local communities, we will ensure a healthy and
safe environment for us all. Thank you, and I look forward to
yielding--to the testimony of our witnesses, and yield back the
balance of time.
[Additional statements submitted for the record follow:]
Prepared Statement of Hon. Charlie Norwood, a Representative in
Congress from the State of Georgia
Thank you, Mr. Chairman.
During my tenure in Congress I've been a consistent supporter of
commonsense environmental policies that will ensure clean air and
water. However, striking the balance between necessary urban
developments and maintaining acceptable air quality is something we
urgently need to find.
Take a city that is busting out at the seams, like Atlanta.
Expanding the cities roadways is absolutely vital to the residents
there. They can not afford to wait six months during a ``conformity
lapse'' to finish a major artery of the city.
We must find this balance and that is why I am so pleased the
distinguished Chairman has decided to hold this hearing today. I am
looking forward to our witnesses' testimony and guidance. I yield back.
______
Prepared Statement of Hon. C.L. ``Butch'' Otter, a Representative in
Congress from the State of Idaho
Mr. Chairman, I appreciate the opportunity to sit down today and
discuss the steps necessary to jump-start critical highway improvement
projects throughout our country. Our current highway planning process
has been weighed down by excessive environmental and ESA restrictions.
The length of time needed to acquire a series of permits, both state
and federal, before construction can begin needlessly delays the much-
needed improvements to our highway system.
Our nation's economy depends on an efficient and affordable
transportation system to move people and products across the country
and around the world, and these unnecessary delays harm much more than
a few miles of road. In Idaho alone $58 million in highway projects is
currently tied up in bureaucracy. That is money that has already been
appropriated, spent by the government with the intention of maintaining
and improving roads throughout my state. Instead it is sitting unused,
waiting for some bureaucrat to sign a paper while Idaho's roads
continue to deteriorate.
The highway bill that we will consider on the floor in the coming
weeks is critical. Investing in our nation's roads and transit systems
is wise not only for the present but also for the future, and a
meaningful authorization bill would provide for economic development,
job creation, and safety improvements on our Federal Highway System.
This is why I support the provisions we have gathered here to discuss.
However, I am concerned that they merely scratch the surface, when
what we need is serious reform to address the flaws in the
environmental and historical permitting process. No amount of money
passed by Congress in an authorization or appropriation bill benefits
the citizens of this country if it gets tied up for years in needless
bureaucracy. It is crucial that as we address this bill this year we
take the steps necessary to see that highway money actually turns into
pavement.
Thank you.
______
Prepared Statement of Hon. Michael C. Burgess, a Representative in
Congress from the State of Texas
Mr. Chairman, I would like to thank you for holding this important
hearing.
My Congressional District, like those of Chairmen Barton and Hall,
is located in the Dallas-Fort Worth Metroplex in North Texas. I believe
that one of the North Texas region's most important and challenging
issues over the next decade will be how best to clean up the air that
we breathe.
There is a significant commitment to clean the air from all the
stakeholders in the Dallas-Fort Worth area. This includes the EPA, the
State of Texas, the Cities of Fort Worth and Dallas, and the North
Texas Clean Air Coalition, which is comprised of the North Texas
Council of Governments and community leaders. It is important to note
that North Texas has grown rapidly over the last decade and the degree
of air pollution has not increased.
I support efforts to clean up our air--I believe that it is one of
the most important legacies that we can leave our children. As a former
member of the Transportation and Infrastructure Committee, however, I
am concerned about the transportation conformity provision in current
law. I do not believe that taking away transportation funding from the
Dallas-Fort Worth region will result in improved air quality.
In fact, I believe eroding our transportation funding would
adversely affect air quality because studies have shown that
automobiles operate more efficiently at around 60 miles per hour than
at lower speeds such as those cars idling during bumper-to-bumper
traffic in bottleneck areas, such as on Interstate 35 East in my
district. A more efficient motor decreases the amount of ozone-creating
pollutants that are released into the air. This is especially important
to the Dallas-Fort Worth region because EPA studies have shown that our
region's air quality is especially affected by mobile-source
(automobile) pollution.
I am looking forward to hearing from our witnesses this afternoon
about how this year's Highway Reauthorization bill will address the
subject of Transportation Conformity.
I yield back.
______
Prepared Statement of Hon. Joe Barton, Chairman, Committee on Energy
and Commerce
Thank you, Mr. Chairman. The issue of transportation conformity
represents the intersection between development and environmental
protection. Protection of the nation's air quality while not hindering
the continued development and expansion of this Nation's transportation
system is an attainable goal. I applaud any enhancements that look to
make a process run more efficiently and with more success.
The provisions we are examining today clearly move the ball forward
in terms of aiding states and localities by providing them more time to
plan thus enabling them to keep their transportation programs intact
and on schedule. This prevents billions of dollars of funding from
being tied up when the goal is continued transportation development
while protecting air quality.
I would like to take a moment to focus on the fact that the Clean
Air Act transportation conformity provisions contained in the current
transportation bill, H.R. 3, remain the same as those in H.R. 3550,
from the prior Congress. In the 108th Congress we worked successfully
with our friends across the aisle on crafting these provisions. This
spirit of bi-partisan cooperation on this issue continues into the
109th Congress. It is my sincere hope that this example reflects a
renewed commitment to work together on various issues, including energy
legislation.
For a subcommittee that has much work in front of it on energy and
air quality issues, it bodes well that on such a complex issue, as
transportation conformity, we can work together to come to a positive
resolution. It is my hope and preference that a positive dialogue,
continue with our friends on the other side of the aisle, as the
Committee moves forward in this legislative session.
I thank the Chairman for having this hearing and look forward to
the testimony. I yield back the balance of my time.
Mr. Hall. Thank you. On our first panel, we have the
Honorable Jeffrey R. Holmstead, Assistant Administrator for Air
and Radiation, Environmental Protection Agency, in charge, I
understand, of all activities at EPA's Office of Air and
Radiation, associate counsel to our President, with a long
record of environmental service and knowledge, and we thank you
for bringing that knowledge to us.
We have Charles D. Nottingham, Associate Administrator for
Policy, Department of Transportation, Federal Highway
Administration, who has previously served as counsel to the
U.S. House of Representatives, so he has been with us from time
to time.
And we have, sitting behind Mr. Nottingham, recognize a
man that has given great service to State, country, and Nation,
James Shrouds, who is Director of the Federal Highway
Administration, Office of Natural and Human Environment. Mr.
Shrouds is scheduled to retire this week from Federal service,
after a very illustrious 40 year career at the FHWA. During his
long career, Mr. Shrouds frequently provided technical
assistance to the Energy and Commerce Committee, and to other
Congressional committees, is lauded. Mr. Shrouds is esteemed
throughout the transportation and air quality community as a
leading expert on air quality conformity for highways. The
committee wishes to recognize his contribution and express our
appreciation to an exemplary and dedicated public servant. We
are honored to have you here.
Now, and I recognize, on this panel, also, Mr. Njord, who
is Executive Director of the Utah Department of Transportation,
responsible for transportation planning for the 2002 Olympic
Winter Games. He is very versatile. He is a past President of
the American Association of State Highway and Transportation
Officials. We thank you three, and if you will be patient with
us once again, we have some votes going on over there, and I am
going to go over and try to be back within 15 minutes.
And without objection, Mr. Njord will join the first panel.
I am going to vote, and I will be back. Thank you. We used
to have a sign on our abstractor's door there, back in the
1930's, when they just couldn't afford to miss a sale, and if
he would go across the street to get coffee, it would say going
for coffee, be back in 5 minutes, been gone 3. So that is what
I am telling you right now. The Chair recognizes Mr. Boucher,
the gentleman from Virginia, for an opening statement.
Mr. Boucher. Mr. Chairman, I--in view of the time that we
have, and the number of witnesses that we have today, will
simply submit mine for the record, and I think it would be
appropriate at this time to go on with our testimony.
[The prepared statement of Hon. Rick Boucher follows:]
Prepared Statement of Hon. Rick Boucher, a Representative in Congress
from the State of Virginia
Thank you, Mr. Chairman. I commend you, for the bipartisan work
which has been performed in drafting these Clean Air Act Amendments and
for appropriately exercising this Committee's jurisdiction by holding
today's hearing on the issues contained in the transportation
legislation which fall within the scope of our authority.
Today we will hear from a variety of witnesses with expertise in
both air quality and transportation planning who will address the
current Clean Air Act conformity requirements as they relate to
transportation planning and suggest specific changes which could
improve the process.
Under the Clean Air Act, regions that have not attained one or more
of the six National Ambient Air Quality Standards must develop a State
Implementation Plan outlining how they will bring the area into
attainment. Section 176 of the Clean Air Act prohibits federal agencies
from funding projects in these areas unless the projects conform to the
SIP. In other words, projects must not affect air quality in the region
in a manner which would delay attainment of the air standards.
Because new road projects lead to an increase in vehicle miles
traveled and therefore to increased emissions in an area, the Act
requires that a non-attainment area's Transportation Improvement Plan
show that the planned transportation projects in an area will conform
to the SIP. If the TIP does not show conformity, the projects in
question are deemed ineligible for federal funding and there is a lapse
in the area until conformity of the plans is achieved.
The process associated with proving conformity under Section 176 of
the Clean Air Act is complicated and involves the coordination of many
planning activities such as the SIP, TIP and long range transportation
planning. Many have raised concerns that the differing time lines
associated with the development of various plans leads to a process
that is less coordinated than it could be resulting in lapses of
conformity. Others have argued that the process is working and that any
changes could be detrimental to a region's air quality. The provisions
contained in H.R. 3 represent a compromise which would alter the
current process to allow for less frequent demonstrations of
conformity, the ability to shorten the planning horizon and provide for
a 12 month grace period before a lapse would be declared.
Specifically, H.R. 3 would change the frequency of conformity
determinations for both the TIP and the long range Regional
Transportation Plan to once every four years as opposed to the two year
and three year respective cycles under current law. The proposed
legislation would also alter the period of time for which conformity
must be demonstrated. Under current law, conformity must be shown for a
minimum of 20 years. H.R. 3 would allow an area to reduce this time
horizon to 10 years with the agreement of the relevant air quality
agency and the Metropolitan Planning Organization. H.R. 3 would
additionally allow substitutions of ``Transportation Control Measures''
in a SIP without revisiting the SIP approval process or making a new
conformity determination provided that the new measures achieve an
equal or greater emissions reduction. Finally, the measure would add a
new one-year grace period in the event of a conformity lapse, allowing
a 12 month period in which to demonstrate conformity before federal
funding is frozen.
I am interested in hearing from the witnesses a summary of their
experiences with the transportation conformity requirements, whether
changes to the process are needed and if so what changes would best
meet the dual goals of improving both transportation infrastructure and
air quality.
Thank you, Mr. Chairman.
Mr. Hall. As usual, you are very generous. Thank you very
much. All right. Mr. Nottingham, the Chair recognizes you for,
hopefully, 5 minutes, but with your kind patience, and your
demand on your time, we will grant you the time that is
actually needed. And thank you, sir.
Mr. Nottingham. Thank you, Chairman Hall, and members of
the committee. Thank you for this opportunity to discuss
transportation and air quality. I do ask that my written
statement be made part of the record.
Mr. Hall. Without objection.
STATEMENTS OF HON. CHARLES D. NOTTINGHAM, ASSOCIATE
ADMINISTRATOR FOR POLICY, DEPARTMENT OF TRANSPORTATION, FEDERAL
HIGHWAY ADMINISTRATION; HON. JEFFREY R. HOLMSTEAD, ASSISTANT
ADMINISTRATOR FOR AIR AND RADIATION, ENVIRONMENTAL PROTECTION
AGENCY; AND JOHN R. NJORD, EXECUTIVE DIRECTOR, UTAH DEPARTMENT
OF TRANSPORTATION, ON BEHALF OF AMERICAN ASSOCIATION OF STATE
HIGHWAY AND TRANSPORTATION OFFICIALS
Mr. Nottingham. Thank you. With me, as you noted, Mr.
Chairman, earlier, in the front row behind me, is Jim Shrouds,
the Director of the Federal Highway Administration's Office of
Natural and Human Environment. Meeting the dual challenges of
highway traffic congestion relief and air quality improvement
is a high priority for the Department of Transportation, as I
know it is for the members of this committee. Secretary Mineta
has noted that one of the core principles of the Department's
reauthorization proposal is to ensure an efficient
infrastructure, while retaining environmental protections that
enhance our quality of life.
Over the last 30 years, we have made remarkable progress in
reducing air pollution, especially from transportation sources,
and accomplished this during a period of significant growth in
population, gross domestic product, and vehicle miles traveled.
Reauthorization of the surface transportation programs presents
a unique opportunity to continue progress in air quality
improvement, and at the same time, make gains in reducing
congestion. New conformity provisions should provide
flexibility, streamline the conformity process, but ensure that
air quality improvement continues.
A failure to meet a conformity determination deadline is
referred to as a conformity lapse, and during a lapse, use of
Federal-aid highway and transit funds may be restricted to
certain types of projects, such as highway safety projects. The
administration's conformity proposals would help address
concerns that lack of synchronization in the transportation and
air quality planning processes can contribute to lapses in
conformity. While transportation plans have very long planning
horizons, and are updated frequently, most air quality plans
have very short planning horizons, and are updated less
frequently.
The administration has proposed to better align the
transportation and air quality planning horizons, and update
cycles for transportation conformity, to better integrate the
planning processes. Although the administration proposes
limiting the conformity analysis timeframe to a minimum of 10
years, the provision would also require a regional emissions
analysis for the last year of the transportation plan, which
covers at least a 20-year period. However, the emissions
analysis would be for informational purposes only. We continue
to recommend including these provisions in the next
reauthorization act. H.R. 3 reintroduces the same conformity
provisions contained in H.R. 3550 from the 108th Congress, and
the administration expressed its position on a number of these
proposals last year in a letter to the conferees.
For example, the administration has objected to the 12
month grace period for demonstrating conformity in the House
bill. Instead, we support lengthening the transportation and
air quality update cycles to 5 years, which would better align
with the time periods required in other Clean Air Act
regulatory requirements. Current law requires conformity
updates every 3 years, while H.R. 3 proposes a 4 year cycle
with a 12 month grace period before lapse. We believe that our
proposed 5 year cycle will be easier to implement.
In conclusion, I want to assure you that the FHWA is
committed to continue the progress we have made in reducing
motor vehicle emissions, and strongly supports the goals of the
Clean Air Act's transportation conformity provisions. We are
proud of the successes that have been achieved through flexible
funding for innovative transportation projects that improve air
quality, and through improved cooperation between
transportation and air quality agencies. However, continued
progress will require improved coordination of the
transportation and the air quality planning processes. We
believe that enactment of the administration's conformity
proposals will provide the tools for better coordination, and
will do much to help States achieve their transportation and
air quality goals.
Mr. Chairman and members of the committee, this concludes
my statement. I look forward to working with you for
reauthorization of the surface transportation programs, and I
will be pleased to answer any questions you may have.
[The prepared statement of Charles D. Nottingham follows:]
Prepared Statement of Charles D. Nottingham, Associate Administrator
for Policy, Federal Highway Administration, United States Department of
Transportation
Mr. Chairman and Members of the Subcommittee, thank you for this
opportunity to discuss transportation conformity.
Meeting the dual challenges of congestion relief and air quality
improvement is a high priority for all of us at the Department of
Transportation, as I know it is for members of this Committee. In the
Transportation Equity Act for the 21st Century (TEA-21), you gave us
new tools and authorities to assist us in achieving this goal, and we
are proud of the progress that has been made. In reauthorization, the
Department wants to continue to build upon the successes of TEA-21 and
the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA).
Five key performance goals, including the protection of the human and
natural environment, form the basis for the President's FY 2006 budget
request. Under Secretary Mineta's leadership, these goals will help us
develop a safer, simpler, and smarter national transportation system
for a strong America.
The Department has articulated a set of core principles and values
that have guided development of the Safe, Accountable, Flexible, and
Efficient Transportation Equity Act of 2003 (SAFETEA), the President's
proposal for surface transportation reauthorization, introduced in the
108th Congress on May 15, 2003, as H.R. 2088. We plan to build on the
successes and lessons of TEA-21. We seek to enhance the safety and
security of all Americans, even as we increase their mobility, reduce
congestion, and grow the economy. We want to ensure an efficient
infrastructure while retaining environmental protections that enhance
our quality of life.
In my testimony today, I will address two main points. First, I
want to assure you that progress has been made in reducing
transportation-related emissions of air pollutants, and that the
Department of Transportation is committed to doing its part to ensure
progress continues. Second, I want to restate the commitment of the
Department to work with our transportation planning and air quality
planning partners for effective coordination of the transportation and
air quality planning processes.
CONTINUED FOCUS ON AIR QUALITY IMPROVEMENTS
As a Nation, we have made remarkable improvements in reducing air
pollution, especially pollution that comes from transportation sources.
Where transportation is a significant source of pollutants, the
Environmental Protection Agency (EPA) reports that ozone (formed by the
reaction of volatile organic compounds (VOC) and oxides of nitrogen
(NOx)), carbon monoxide (CO), and particulate matter (PM), have all
decreased substantially since 1970. A majority of the areas designated
as nonattainment since 1990 now meet national air quality standards.
Air quality monitoring data through 2003 shows that all of the original
carbon monoxide nonattainment areas, and 66 out of 87 previously-
designated coarse particulate matter (PM-10) nonattainment areas no
longer show air pollution levels that exceed the national ambient air
quality standards. In addition, considering the recently implemented 8-
hour ozone and PM-2.5 standards, ozone levels nationwide are down 9%
from 1990, and PM-2.5 concentrations have decreased 10% since 1999.
And, while the Clean Air Act (CAA) has led to reduced pollutant
emissions from all air pollution sources, the greatest success can be
found in the reduction of motor vehicle emissions: CO emissions have
been reduced by 62 percent since 1970, PM-10 emissions reduced by 50
percent, NOx emissions by 41 percent, and VOC emissions by 73 percent
from motor vehicles (see Attachment). In 1970, motor vehicles
contributed 69 percent of total emissions of carbon monoxide, NOx,
VOCs, and PM-10. However, by 2002, the motor vehicle portion of
emissions of these pollutants dropped to 43 percent. Most of these
emissions reductions have resulted from stricter emissions standards,
improved engine technology, and cleaner fuels. (The data cited in this
paragraph can be found at the following websites: http://www.epa.gov/
ttn/chief/trends/ and http://www.
epa.gov/ttn/chief/trends/trends02/trendsreportallpollutants010505.xls.)
It is especially important to note that these reductions in
emissions were accomplished during a period of 41 percent increase in
population, 167 percent growth in gross domestic product (GDP), and 157
percent increase in vehicle miles traveled. The automotive, fuels,
highway, and transit communities have managed to achieve this success
in improving air quality while at the same time working to address
increasing demands to improve mobility.
The downward trend achieved in emissions is expected to continue
into the future. Engines and fuels are to become even cleaner under
recent EPA-issued regulations for emissions standards and cleaner fuel
requirements. Between 2004 and 2007, more protective tailpipe emissions
standards will be phased in for all passenger vehicles, including SUVs,
minivans, vans, and pick-up trucks. This regulation marks the first
time that larger SUVs and other light-duty trucks will be subject to
the same national pollution standards as cars. In addition, the EPA
tightened standards for sulfur in gasoline, which will ensure the
effectiveness of low-emission control technologies in vehicles and
reduce harmful air pollution. When the new tailpipe and sulfur
standards are implemented, Americans will benefit from the clean-air
equivalent of removing 164 million cars from the road. These new
standards require all passenger vehicles sold after the phase-in period
to be 77 to 95 percent cleaner than those on the road today, and will
reduce the sulfur content of gasoline by up to 90 percent.
We expect that motor vehicle emissions will be reduced as new
heavy-duty vehicles that meet the 2004 emissions standards for heavy-
duty engines enter the fleet. Beginning with the 2007 model, heavy-duty
engines for trucks and buses must meet even tighter emissions
standards, and the level of sulfur in diesel fuel must be reduced by 97
percent from existing standards by mid-2006. As a result, after a
phase-in period, each new truck and bus will be more than 90 percent
cleaner than the models made before the 2004 standards were in effect.
In addition to tighter standards, the Federal Transit Administration
(FTA) has been working with industry to develop and demonstrate low-
and zero-emissions advanced propulsion technologies for transit buses,
including hybrid-electric, battery electric, and fuel cell-powered
buses. Under FTA/DOT leadership, a national program is underway to
accelerate the development and commercial viability of these advanced
technologies.
However, the Nation as a whole, and the transportation community in
particular, face additional challenges as new air quality standards are
implemented. The new eight-hour ozone and fine particulate (PM-2.5)
standards are more stringent, and many areas across the eastern U.S.
and in California have been designated nonattainment under these
standards. Some of these areas, including small urban and rural areas,
were designated nonattainment for the first time. Other existing
nonattainment areas become larger and involve more jurisdictions under
the new standards. The Department and EPA are working with these areas
to increase their capacity to deal with new nonattainment designations.
the transportation conformity process: coordinating transportation and
AIR QUALITY PLANNING
Conformity refers to a requirement of the CAA that is designed to
ensure that Federally-funded or Federally-approved highway and transit
projects conform to the air quality goals and priorities established in
a State's implementation plan (SIP). For programs administered by the
Federal Highway Administration and the Federal Transit Administration,
we determine whether highway and transit projects conform to a State's
SIP by comparing the total expected air quality emissions from the
whole transportation system within the nonattainment or maintenance
area, including the expected emissions that would result from projects
contained in the transportation plan and transportation improvement
program (TIP), with the emissions budget for motor vehicles in the SIP.
A failure or inability to make a conformity determination by the
required deadline is referred to as a ``conformity lapse.'' During a
conformity lapse, the use of Federal-aid highway and transit funds may
be restricted. Currently, most areas of the country are in conformity.
But, as of March 1, 2005, six areas are in a conformity lapse.
Fulfilling the transportation conformity requirements has created
stronger institutional links between two sets of agencies--
transportation and air quality--that operated quite independently of
each other prior to enactment of the Clean Air Act Amendments of 1990
(CAAA). This interagency consultation has played a crucial role in the
development of more realistic and achievable transportation and air
quality plans. In addition, the transportation conformity provisions
have been instrumental in fostering improvements to the travel demand
and emissions modeling processes, because of the specificity of data
necessary to meet conformity requirements.
We now have more than a decade of experience in implementing the
transportation conformity provisions of the CAAA and, despite
successes, our stakeholders indicate that there remain opportunities to
improve the transportation conformity process. Transportation
conformity was intended to form strong linkages between the
transportation and air quality planning processes. However, there is a
concern among transportation agencies--and even some air quality
agencies--that transportation plans and SIPs are not synchronized with
one another due to different planning horizons and update frequencies.
While transportation plans have very long planning horizons and have to
be updated frequently, most air quality plans have comparatively
shorter planning horizons and are updated less frequently.
TEA-21 and the CAA require that transportation plans must cover at
least 20 years and be found conforming for that entire time period.
However, air quality plans have much shorter planning horizons, often
only 5-10 years, resulting in a ``mismatch'' in which transportation
plans must consider emissions controls in the absence of comprehensive
air quality planning. Without comprehensive air quality planning, there
is no analysis of the most cost-effective emissions controls across all
sources beyond the end of the SIP timeframe. If a metropolitan planning
organization (MPO) has a conformity problem in the time frame beyond
that covered by the SIP, it has limited options for achieving
substantive emissions reductions with programs over which the
transportation agencies have control. Traditional transportation
control measures (TCMs) have little impact on regional emissions
levels, and such strategies will provide even fewer reductions in the
future, as technology continues to reduce total mobile source
emissions. MPOs and State air agencies must work together during the
SIP development and transportation conformity processes to ensure that
both air quality and transportation needs are addressed. Although MPOs
bear the responsibility of assuring that plans conform to air quality
budgets, they do not have the authority under current law to establish
more effective measures, like vehicle inspection and maintenance
programs or reformulated fuels. That process of identifying future
control strategies is the intended purpose of the SIP.
This ``mismatch'' can be further aggravated by differences in the
frequency with which transportation plans and air quality plans are
updated. Conformity determinations for transportation plans must be
made at least every three years, must be based on the latest
demographic and travel information, and must use the latest emissions
estimation model. However, air quality plans are not updated on a
regular cycle, and may reflect out-of-date assumptions or may have been
developed using an outdated emissions estimation model. When a
conformity analysis is performed in such a situation, it is impossible
to determine whether the emissions associated with the transportation
plan are truly consistent with the emissions budget in the air quality
plan. This may be because the transportation plan emissions were
estimated using one set of assumptions and model, while the emissions
budget was developed under another. Our stakeholders have reported that
such situations have occurred and are likely to happen again with
recent and expected future releases of a new or updated emissions
estimation models.
EPA, in coordination with the Department of Transportation, allows
a grace period before States have to use a new emission model for
conformity. EPA also requires that SIPs that are started after the
official release use the new model. While the Clean Air Act does not
require SIP updates in all cases, EPA guidance encourages States to
evaluate the effects of a new model early to plan for any needed SIP
updates to accommodate change.
Our stakeholders indicate that conformity lapses have occurred
because areas could not complete the complex, comprehensive
transportation planning and conformity processes within the required
time frames, even though they met their emissions budgets. Data
collection, model development, public outreach, and consensus building
can all take a considerable amount of time and resources. MPOs also
face other daily challenges of ever-increasing congestion,
transportation needs due to economic growth, protection of water
quality and other environmental resources, efficient freight
management, safety, and security.
Many of our stakeholders have suggested bringing the planning
horizons and frequency of updates of both the transportation plans and
air quality plans much closer together. Some have suggested a shorter
planning horizon, and less frequent updates, while others have
suggested a longer air quality planning horizon. We note that some
areas have opted to voluntarily extend their air quality planning
horizons.
In any case, some stakeholders have suggested it is in the best
interests of an effective, integrated process that the air quality
plans and the transportation plans are both using the latest, and most
consistent, set of planning assumptions, and that the air quality plans
include the necessary control measures to ensure timely attainment of
the standards. Stakeholders have stated that this would also help
anticipate air quality problems and correct them in a more proactive
and coordinated transportation and air quality planning process.
TRANSPORTATION CONFORMITY PROVISIONS IN SAFETEA
Over the years, the Department has worked closely with EPA and
State and local stakeholders to improve the transportation conformity
process, and we are committed to continuing to improve coordination of
the transportation and air quality planning processes. We worked with
EPA and transportation stakeholders to identify and develop the
conformity proposals in SAFETEA, and we believe that enactment of the
following provisions would contribute significantly to process
improvements.
1. SAFETEA would combine metropolitan long-range transportation
plans and transportation improvement programs into a single
transportation plan. A primary objective is to ensure better
consistency between what has been known as the metropolitan long-range
transportation plan and the identification/prioritization of specific
transportation projects/project phases into what has been known as the
TIP. Since current law requires the TIP to be consistent with the long-
range transportation plan, the rationale behind this proposed change is
to reduce the number of actions or products generated by the
metropolitan transportation planning process such as those related to
plan/program development or revision, public involvement, fiscal
constraint. This will require only one conformity determination for the
plan, instead of separate conformity determinations for transportation
plans and TIPs.
2. SAFETEA would limit transportation conformity to the first ten
years of the transportation plan, the latest year in which the SIP
contains a motor vehicle emissions budget, or the completion date of a
regionally significant project, if the project requires approval before
the subsequent conformity determination, whichever is longer. In
practice, this means that for areas with SIP planning horizons of less
than 10 years (which is the case for most areas), transportation
conformity determinations would cover a minimum of 10 years. In cases
where air quality agencies develop a longer-term SIP with emissions
budgets that extend beyond 10 years, the conformity determination would
cover the corresponding, longer time period. This provision would be
added to better integrate the transportation planning and air quality
planning processes, and to ensure that the most cost-effective
mitigation strategies are incorporated into these processes. This
proposal would more closely align the transportation and air quality
planning horizons for purposes of transportation conformity. Currently,
transportation conformity must be determined for the entire 20-year
planning horizon of metropolitan long-range transportation plans. On
the other hand, air quality SIPs usually cover a much shorter time
frame (10 years or less). Nevertheless, long-range transportation plans
must conform to these SIPs for the full 20 years of the plan. This
mismatch in timeframes does not provide for an integrated planning
process in the out-years to select the most cost-effective strategies
for controlling emissions, nor does it allow for the consideration of
emissions reduction strategies across different sources of emissions.
3. SAFETEA would require a regional emissions analysis for the last
year of the transportation plan, for informational purposes only.
SAFETEA includes a proposal for regional emissions analysis to be
performed for the last year of the metropolitan Transportation Plan,
assuming the conformity analysis is not performed for the entirety of
the Transportation Plan. These analyses are intended to be
informational only and serve as input into future updates of the air
quality SIP or the Transportation Plan. If the analysis indicates that
there are potential long-term air quality issues, such issues could be
more effectively addressed through an integrated transportation and air
quality planning process and future updates of the air quality SIP and/
or metropolitan Transportation Plan.
4. SAFETEA would revise the required frequency of transportation
plan updates and conformity determinations from three to five years,
except when the MPO chooses to update the plan more frequently or
changes to the SIP trigger a new conformity determination as provided
for in the conformity rule. The Administration's proposed legislation
would encourage (and provide sufficient time to develop) comprehensive
Transportation Plans that consider a diverse array of issues, while
giving the MPOs and State DOTs discretion in updating Transportation
Plans more frequently than the proposed five-year timeframe, if
dictated by changing regional or State issues. Any major change to the
transportation plan within the 5-year update cycle, however, would
result in a new conformity determination. In addition, SAFETEA would
retain the 18-month conformity ``triggers'' of the current
transportation conformity rule associated with SIP actions, i.e., a
conformity determination on the transportation plan is required if a
related SIP action occurs. Together these factors would ensure that
transportation plans remain in conformity with air quality plans,
thereby not compromising air quality goals.
CONCLUSION
In conclusion, the Department of Transportation is committed to
continuing the progress made over the last thirty-five years in
reducing motor vehicle emissions and strongly supports the goals of the
Clean Air Act's transportation conformity provisions. Improving
transportation safety and mobility, while protecting the environment
and enhancing the quality of life for all of our communities, are
compatible goals. The Department is proud of the successes that have
been achieved through flexible funding for innovative transportation
projects that improve air quality and through improved cooperation
between transportation and air quality agencies. However, we also
recognize that additional improvement in the coordination of
transportation and air quality planning processes can be achieved.
We believe that the Administration's SAFETEA conformity proposals
would lead to better integrating transportation and environmental
decision-making and would effectively advance environmental stewardship
while improving our efficiency in meeting our nation's mobility needs.
The American public demands and deserves both mobility and clean
air, and we must remain focused on providing the highest level of
service and environmental protection that we can provide.
Mr. Chairman and members of the Subcommittee, this concludes my
statement. I again thank you for the opportunity to testify today and I
look forward to working with you for reauthorization of the surface
transportation programs.
I will be pleased to answer any questions you may have.
Mr. Hall. And for which we thank you, and Mr. Holmstead,
recognize you, sir.
Mr. Holmstead. Thank you, Mr. Chairman. It is a pleasure to
be here this afternoon. With your permission, I would like to
submit my written statement for the record.
Mr. Hall. Without objection.
STATEMENT OF HON. JEFFREY R. HOLMSTEAD
Mr. Holmstead. And make a very brief oral statement, in
light of the time that we have.
Over the last 30 years, we have made amazing progress in
reducing pollution from cars and trucks and buses. Within the
next year or 2, any car or truck or--any car or SUV or truck
that we buy is going to be about 99 percent cleaner than it was
in 1970, and within a few years after that, all diesel engines
will be about 95 percent cleaner than they are today. It really
is remarkable what technology has done to improve our air
quality, and especially, the transportation-related air
quality.
Notwithstanding these improvements, there is still more
that we need to do in terms of coordinating transportation
plans and air quality planning, and that is really what
conformity is all about. The administration has already taken a
number of steps administratively to try to make this program
work better. We think it is important to continue to have
better relationships between the air quality planners and the
transportation planners. We think we have come a long way over
the last 13 years, but we recognize that there is more that we
can do. Mr. Nottingham mentioned several of the things that the
administration has been working, and put in its own bill, and
we look forward to working with the committee to make sure that
we can continue to achieve the dual goals of having an
effective transportation infrastructure, while at the same
time, protecting our air quality.
Thank you, and I, too, would be happy to answer any
questions you may have.
[The prepared statement of Jeffrey R. Holmstead follows:]
Prepared Statement of Jeffrey Holmstead, Assistant Administrator,
Office of Air and Radiation, U.S. Environmental Protection Agency
Thank you, Mr. Chairman and Members of the Subcommittee, for the
opportunity to appear here today to discuss the transportation
conformity program in the context of reauthorization of the nation's
surface transportation law, currently known as the Transportation
Equity Act for the 21st Century (or TEA-21).
There has been considerable progress in achieving better air
quality for Americans over the past 30 years. Building upon these air
quality successes remains an important national priority. EPA sees the
reauthorization of TEA-21 as an opportunity to employ available tools
to improve air quality in ways that could help cities across the
country make progress toward attaining the national air quality
standards, including the recently implemented new ozone and particulate
matter standards.
According to EPA's latest air quality trends report, air quality
monitoring data show that from 1970-2003, concentrations of all six
criteria pollutants have declined, including the four criteria
pollutants that are most affected by the transportation sector: carbon
monoxide, nitrogen dioxide, ozone (smog), and particulate matter soot.
These air quality data are good news, and are attributable to the
transportation and air quality programs currently in place. However,
there is still more work that needs to be done. Currently, there are
approximately 160 million Americans living in 474 counties that are
designated nonattainment for the new 8-hour ozone air quality standard,
and 95 million people living in 225 counties that are designated
nonattainment for the new standard for fine particulate matter (or
PM<INF>2.5</INF>). The criteria pollutant emissions have a significant
impact on the health of Americans. Particulate matter is linked to
aggravation of pre-existing respiratory ailments, reductions in lung
capacity, and a significant number of premature deaths. Ozone can
impair lung function, cause chest pain and coughing, and worsen
respiratory diseases and asthma. Carbon monoxide can aggravate angina
(heart pain).
Even though overall emissions have been reduced, on-road mobile
sources continue to be a significant contributor to pollution problems.
EPA estimates that in 2003, motor vehicles accounted for 55 percent of
total U.S. carbon monoxide emissions, 28 percent of total volatile
organic compounds (VOCs; an ozone precursor), 36 percent of total
nitrogen oxides (NO<INF>X</INF>; an ozone precursor), and 5 percent of
the traditionally inventoried direct emissions of particulate matter
nationwide.
As these data suggest, the integration of transportation and air
quality planning is imperative to achieving clean air. One of the most
valuable tools that currently exists to ensure the integration of these
two distinct and different planning processes is transportation
conformity. Transportation conformity was established by Congress in
the Clean Air Act Amendments of 1977 and strengthened in the 1990
amendments. The purpose of transportation conformity is to ensure that
transportation activities within a region are compatible with the
region's clean air goals. Transportation conformity applies only in
areas that have air quality worse than the national standards
(nonattainment areas) or that have violated the standards in the past
(maintenance areas). In the simplest terms, conformity serves as an
``accounting check'' to ensure that emissions from a nonattainment or
maintenance area's future transportation network fit within the
emissions budget included in the area's air pollution reduction plan.
A benefit of conformity accounting is that it requires state and
local governments, and the public, to consider the air quality impacts
of the planned transportation system as a whole, before transportation
plans are adopted and projects are built. Billions of dollars every
year are spent on developing and maintaining our transportation system.
Conformity helps ensure that these dollars are not spent in a manner
that would worsen air quality.
Prior to the 1990 Clean Air Act, transportation planners and air
quality planners often did not consult with one another or even use
consistent information regarding future estimates of growth. To address
these problems, the 1990 Amendments explicitly linked the air quality
planning and transportation planning processes in a manner that had not
previously existed. Transportation conformity has compelled the two
types of planning agencies to work together through an interagency
consultation process to find creative and workable solutions to air
quality issues. This increased consultation is an important benefit. A
1999 Harvard study on the program, which was jointly funded by DOT and
EPA, confirmed that the program has improved consultation between
transportation and air quality planners, and made that consultation
more effective.
While conformity has proven to have certain benefits, some
nonattainment and maintenance areas, particularly those that have been
recently designated nonattainment for the new ozone and
PM<INF>2.5</INF> standards, may face challenges in meeting the
program's requirements. The best way EPA can help areas meet conformity
is through Federal programs to improve air quality. We are currently
implementing three Federal regulatory programs that will achieve
dramatic emission reductions from cars, trucks and nonroad equipment
across the country.
First, in 2004, car manufacturers began producing cars and light
trucks that meet EPA's new, stringent tailpipe standards. These
requirements are enabled by EPA's Tier 2 program with low sulfur
gasoline standards that ensure the effectiveness of emission control
technologies in all passenger vehicles. Together, these programs will
make passenger vehicles 77 to 95% cleaner. In addition, Tier 2 requires
for the first time that sport utility vehicles, pick-up trucks, and
minivans meet the same standards as cars. Second, EPA's landmark Clean
Air Highway Diesel Program will make heavy duty trucks and buses up to
95% cleaner than today's models. This rule also requires the production
of low sulfur diesel fuel to enable the use of advanced after treatment
technologies. Finally, EPA's Clean Air Nonroad Diesel Program will
achieve reductions of a similar magnitude from non-road diesel engines
used in construction, agricultural, and industrial operations. The
program uses the same approach we relied on in the Highway Diesel
program--tough exhaust standards paired with cleaner fuel requirements.
When fully implemented, EPA estimates that these three programs will
yield over $175 billion annual health benefits, preventing almost
25,000 premature deaths, hundreds of thousands of respiratory
illnesses, and millions of lost work days.
Communities across the nation are counting on these federal
programs to help them demonstrate conformity, and more importantly,
attain the new ozone and PM<INF>2.5</INF> standards. Successful
implementation of these programs is one of the Administration's
priorities. EPA is working closely with the automobile, trucking,
engine manufacturers, and fuels industry to ensure the smooth and
timely implementation of each rulemaking.
In addition to these regulatory programs, EPA has also developed a
number of voluntary programs that are aimed at improving air quality.
The Clean Diesel Initiative consists of efforts to reduce emissions
from new diesel engines as well as existing diesel engines by 2014. EPA
will work with owners of trucks, buses, and nonroad equipment to
encourage the installation of innovative and cost-effective emission
control technology on existing diesel engines. These technologies can
result in reductions of particulate matter, NO<INF>X</INF> and VOCs.
Another non-regulatory approach to achieving emission reductions by
providing travel choices is Best Workplaces for Commuters
<SUP>SM</SUP>. Built around the tax-free commuter benefits in TEA-21
and modeled after the highly successful Energy Star partnership
programs, Best Workplaces for Commuters <SUP>SM</SUP> is an EPA-DOT
voluntary partnership program that recognizes employers offering
outstanding commuter benefit packages that help reduce traffic and
traffic-related emissions. To date, over 1,100 employers from 32 states
and Washington, DC, are on the national list of Best Workplaces for
Commuters <SUP>SM</SUP> covering over 2 million employees.
Finally, EPA has launched another innovative clean air program, the
SmartWay <SUP>SM</SUP> Transport Partnership--a voluntary collaboration
between U.S. EPA and the freight industry designed to increase energy
efficiency while reducing greenhouse gases and air pollution. To meet
these goals, the Partners adopt improved practices and energy saving
technologies such as idling reduction equipment/policies, automatic
tire-inflation systems, and speed management practices. More than 120
companies across the country have joined as SmartWay Transport Partners
since the Partnership became operational in February 2004.
As states and localities move forward in implementing the new ozone
and particulate matter standards, EPA has taken several steps to
improve the overall implementation of the transportation conformity
program through regulatory and proposed legislative actions. Under the
Clean Air Act, EPA is responsible for writing the conformity
regulations with concurrence by the Department of Transportation (DOT),
as DOT is our federal partner in the implementation of the program.
On July 1, 2004, EPA published amendments to the conformity rules
that provide clear guidance and procedures for implementing conformity
for both the new ozone and particulate matter air quality standards.
For example, the final rule describes when conformity first applies in
new nonattainment areas. The Clean Air Act and transportation
conformity rule allow a one-year grace period before conformity applies
for the new standards, and this grace period begins upon the effective
date of EPA's nonattainment designation for each new standard. In
addition, the rule describes the general requirements for ensuring
conformity under the new standards, such as the conformity test(s) that
would apply before a state develops its air quality implementation plan
(or SIP).
EPA believes the timing of this final rule was critical for
ensuring that new nonattainment areas receive the full benefit of the
one-year conformity grace period. New 8-hour ozone nonattainment areas
will be required to demonstrate conformity by June 15, 2005, while
areas designated nonattainment for the PM<INF>2.5</INF> standard will
be subject to the conformity requirements on April 5, 2006. By
finalizing the July 1, 2004 conformity rule, EPA provided new
nonattainment areas sufficient time to prepare their conformity
determinations and meet the one-year conformity requirement. EPA is
working to ensure that additional PM<INF>2.5</INF> guidance will be
available by April 5, 2005 or shortly thereafter.
The July 1, 2004 amendments also incorporate into the rule EPA and
DOT's existing guidance implementing the March 2, 1999 conformity court
decision, as well as other rule revisions and clarifications that we
believe will ease implementation of the program in all nonattainment
and maintenance areas. Of particular interest is a revision that
streamlines the current requirements for re-determining conformity
after certain SIP actions have occurred (e.g., after EPA's approval of
a SIP). This revision ensures that a new conformity determination is
required only for SIPs that have never been used in the conformity
process. Another significant revision implements the Clean Air Act in a
more reasonable and practicable manner by allowing transportation
planners to base conformity analyses on planning data and information
that is available at the beginning of the conformity process.
We are currently working quickly to finalize two smaller rule
changes that will affect areas recently designated nonattainment for
the new PM<INF>2.5</INF> standard. The first of these rulemakings will
add the precursors for PM<INF>2.5</INF> (NO<INF>X</INF>, VOCs, sulfur
oxides and ammonia) to the transportation conformity regulations and
specify when each of these precursors must be considered in conformity
determinations in PM<INF>2.5</INF> nonattainment and maintenance areas.
We plan to issue this final rule within the next few months. The second
rulemaking will address the procedures for determining localized
concentrations (or ``hot-spots'') of particulate matter that could be
caused by transportation projects in certain areas subject to
transportation conformity. EPA plans to finalize this rule later this
summer.
In addition to these regulatory actions, the Administration's
SAFETEA proposal for the reauthorization of TEA-21 also improves the
transportation conformity program and continues to protect public
health. We believe that such improvements will streamline the
conformity program to the benefit of state and local governments. I
would like to mention two main parts of the Administration's bill that
support the transportation conformity process and how they are
addressed in the House bill H.R. 3.
First, the Administration supports modifying the timeframe of
conformity analyses to provide consistency between the horizons
evaluated for transportation conformity and air quality planning
purposes. Under the current conformity rule, transportation planners
are required to evaluate transportation-related emissions for at least
20 years into the future, even if the SIP covers a much shorter time
period (e.g., 10 years into the future). Under the Administration's
SAFETEA proposal, the time frame covered by the conformity analysis
would be the longest of the following: 1) 10 years; 2) the latest SIP
motor vehicle emissions budget year; or 3) a regionally significant
transportation project's completion date. The Administration also
supports the requirement for an informational analysis of the last year
of an area's transportation plan. Such an analysis can provide state
and local governments and the public with a critical ``early warning''
of future long-term air quality problems.
Second, the Administration objects to the 12-month ``grace period''
provided by section 1824 of the House bill, and instead supports
lengthening the transportation and air quality update cycles to 5 years
as the Administration proposed. EPA currently requires such
determinations every 3 years. The Administration believes requiring
conformity updates every 5 years is sufficient for meeting Clean Air
Act goals to protect public health.
The Administration opposes inclusion of the provision in section
1824 of the House bill that would change the point at which a
conformity lapse begins. Under current law, a conformity lapse begins
on the date that an area misses a deadline for determining conformity.
However, the House bill would give areas that miss a required deadline
for demonstrating conformity 12 additional months to correct the
problems that caused them to miss the original deadline, such as
changing the transportation plan or state air quality plan.
EPA opposes this provision because it may make it more difficult
for areas to attain the health-based air quality standard by their
attainment deadlines. For example, under this provision, if an area is
unable to demonstrate conformity by a given deadline, it may continue
to build transportation projects that could potentially be inconsistent
with clean air goals for one additional year before a lapse is imposed.
This provision could also delay the use of SIP air quality emissions
budgets in conformity determinations and deprive areas the opportunity
to verify whether their on-road emissions were consistent with the
levels required by the state. The current conformity rule allows areas
18 months to determine conformity when a new SIP becomes available. The
House bill already extends this period of time to 24 months. An
additional 12 months would further delay the incorporation of new air
quality information into the conformity process and undermine the
current incentive for areas to resolve conformity issues and make
determinations expeditiously.
In conclusion, EPA is committed to partnering with DOT to continue
our progress in meeting both transportation and air quality goals.
Based on our collective experience in implementing the transportation
conformity program, we believe the Administration's proposal will build
on the success of TEA-21 and will further assist areas in their efforts
to achieve clean air now and in the future. Thank you again for this
opportunity to testify today and discuss our programs with you. I would
be pleased to respond to any questions that you may have.
Mr. Hall. Thank you, Mr. Holmstead. The Chair recognizes
Mr. Njord.
STATEMENT OF JOHN R. NJORD
Mr. Njord. Thank you very much, Mr. Chairman, and I
appreciate you accommodating my schedule, and moving me up on
the agenda. Thank you. My name is John Njord. I am the
Executive Director of the Utah Department of Transportation,
and the past President of the American Association of State
Highway and Transportation Officials. And on behalf of all 50
State Departments of Transportation, as well as the District of
Columbia and Puerto Rico, we thank you and applaud you for
having this hearing on air quality conformity, which is a very
important issue for transportation agencies across the country.
When the Clean Air Act was enacted back in 1990, conformity
provisions were created to ensure that transportation plans,
programs, and projects were in conformance with States' efforts
to attain Federal air quality standards. After the 15 years of
experience that we have had with air quality conformity, we
believe that it is time for some refinements to the conformity
process that can and should be made in order to accommodate the
new world we are in today.
Now, why would we be interested in that? We need to
synchronize the conformity of the air quality planning process.
We need to make some commonsense adjustments to the frequency
of conformity updates, and also to better coordinate
transportation and air quality strategies to meet the new air
quality standards.
Since 1999, there have been 74 nonattainment or maintenance
areas that have experienced a conformity lapse, putting
billions of dollars of transportation projects on hold. In over
half of those instances where there has been a conformity lapse
since 1999, the reason for the lapse was simply confusing
deadlines between the various programs. Transportation
conformity has become, year in and year out, a paperwork
process that hasn't necessarily improved air quality, but has
taken valuable staff resources which could have been better
used for transportation planning activities.
Let me give you an example from our good colleague's State
of North Carolina. Three years ago, in 2003, they were facing a
lapse in conformity. In order to beat that deadline, they had
to redo their transportation plan. They were working with the
community on a number of various transportation strategies in
North Carolina, and simply ran out of time. Because of that
running out of time, they fell into a lapsed situation, and for
4 months, they were under a situation where they could not move
forward with over $100 million worth of projects in North
Carolina. They were needlessly delayed just because of
differing dates. Mr. Chairman, we thank you, and Mr. Chairman
Don Young, for acknowledging the need to make improvements to
the conformity process, and we believe that conformity-related
provisions contained within H.R. 3, the Transportation Equity
Act, a Legacy for Users, TEA LU, provides a good start toward
fixing that which has been wrong with the conformity process in
the past.
In our detailed testimony, we have suggested some
additional, minor adjustments that I would like to summarize
very briefly here today. First of all, we support the
provisions to align conformity time horizons with the State air
quality implementation plans and emission budgets, to limit
conformity to the end of the maintenance period. However, we
recommend that you not give air quality agencies concurrence,
which essentially equates to a veto power over the components
of the process. We support provisions to increase and
coordinate the update cycles for metropolitan transportation
plans, together with the statewide transportation
implementation programs, but recommend that the cycle be at
least every 5 years, instead of the 4 years that are contained
currently within H.R. 3.
We support the provisions in H.R. 3 giving MPOs and States
12 months to correct differences, deficiencies prior to
invoking a conformity lapse. This puts conformity lapse
situation closer to on par with the other air quality
sanctions, which don't kick in for 18 months, when you have a
lapse situation. We support the provisions in H.R. 3 that
provide for the substitution of STELL transportation control
measures, and we urge you to take a second look at the process
to coordinate between the 8 hour ozone standards and the 1 hour
emission budgets, with the interim test with the expanded
nonattainment areas.
Now, the goal of air quality conformity is to make air
cleaner, and I think that everybody in the room is interested,
and everybody across the country is interested in making air
quality better. We are all interested in that. Conformity is
not a transportation control measure. It is a tool that is used
to ensure that transportation plans are compatible with air
quality plans, and we would hope that we would continue to be
able to work on that basis, and Mr. Chairman, I appreciate this
opportunity, once again, to speak to you and to this committee,
and would be happy to answer any questions you might have.
[The prepared statement of John R. Njord follows:]
Prepared Statement of John Njord, Director, Utah Department of
Transportation
Mr. Chairman and Members of the Committee, my name is John Njord. I
am Director of the Utah Department of Transportation. I am here today
to testify on behalf of the American Association of State Highway and
Transportation Officials (AASHTO) which represents the departments of
transportation in the fifty states and the District of Columbia and
Puerto Rico. We want to thank you and the Members of your Subcommittee
for convening this hearing to address the transportation conformity
provisions contained in H.R. 3, The Transportation Equity Act: A Legacy
for Users (TEA LU).
In my testimony today I will discuss how H.R. 3 addresses ``next-
generation'' refinements to the transportation conformity process to
build on the experience we have gained over the last nearly fifteen
years. We would like to see procedural modifications to conformity to
enable better alignment and greater consistency between the
transportation and air quality planning processes, including analytical
tools and planning assumptions.
The policy objective of the transportation conformity process,
which was adopted with the enactment of the Clean Air Act (CAAA) in
1990, is to coordinate air quality and transportation planning by
ensuring that transportation plans are consistent with planning for
attaining federal air quality standards. The results have been
positive---coordination between air quality and transportation planning
has improved and cooperation between air quality and transportation
planning office has increased. The process has resulted in greater
awareness of decision makers of the linkages between transportation and
air quality and has encouraged broader involvement in transportation
planning by stakeholders. We support and applaud these improvements.
Nevertheless, after nearly fifteen years of experience, we believe
the transportation conformity process is still not working as
effectively as it could. Misalignments and inconsistencies in planning
horizons, planning updates, assumptions and modeling tools result in
unnecessary complexity and confusion.
The impact on transportation programs is substantial. Since 1999,
74 nonattainment or maintenance areas have had a conformity lapse,
putting billions of dollars for transportation projects on hold. In
over half of these areas, the reason for the lapse was simply confusion
about deadlines. Process inefficiencies impose an additional
administrative burden with sizable opportunity costs--scarce staff and
resources are diverted from addressing the wide array of existing and
emerging transportation policy challenges, including for example,
safety, security and broader environmental and community objectives.
AASHTO has identified several procedural improvements to the
conformity process--improvements which would harmonize the
transportation and air quality planning process and reinforce the role
of conformity to ensure consistency with SIPs. The goal is simply to
strengthen the connection between transportation and air quality
planning by making common sense improvements to the conformity process
that will benefit transportation and air quality agencies alike.
ALIGN PLANNING HORIZONS
Metropolitan transportation plans are required to have a minimum of
a 20-year planning horizon. State Implementation Plans (SIPs) are for a
period that extends to the attainment date with the latest being 2021.
The vast majority of MPOs have attainment dates of 2013 or earlier.
Transportation agencies need to demonstrate conformity to the last year
of the plan which means that on-road mobile sources are constrained to
the motor vehicle emissions budget from the attainment year to the last
year of the transportation plan unless SIPs specifically establish
budgets for years after the attainment date yet within the
transportation planning horizon. Also, there can be no credit taken for
technology or other measures that may be available during the out-years
unless those measures have a regulation in place and implementation is
assured.
The mismatch in the timeframes for transportation and air quality
plans has placed an undue burden on the on-road mobile sector where
there are very few measures remaining that can be implemented that will
yield significant emissions reductions. This is especially true as
vehicles continue to get cleaner and federal controls on vehicles are
phased in. This has caused problems for transportation agencies in
making conformity determinations, which is a criterion for receiving
Federal highway and transit funding.
AASHTO's Policy Recommendation: Require conformity determination on
the first ten years of the transportation plan or to the attainment
date, whichever is the longer time period. For informational purposes,
regional emissions analysis would be done on the remaining years of the
transportation plan.
To address this issue we believe that the following provisions of
H.R.3, The Transportation Equity Act: A Legacy for Users could
be improved.
Time Horizon for Conformity Determinations in Nonattainment Areas
(Section 1824 (c))
H.R. 3 continues the requirement that the conformity finding be
based on the final year (at least 20 years in the future) of the
transportation plan. However, at the election of the MPO and an air
pollution control agency . . ., the conformity finding may be based on
the latest of: (1) the 10th year of the plan; (2) the attainment date
of the SIP; or (3) the year after the completion date of a regionally
significant project, if approval is required before subsequent
determination. Regional emission analysis must be done for the
remaining years of the Plan.
While we agree with the provision generally, we request two changes
that would improve the efficiency and effectiveness of the conformity
process.
We support the three options for the end date of the regional
emissions analysis, especially given the fact that many MPOs are now
developing plans that go for 25 or even 30 years. However, we request
that the regional emissions analysis for the ``out-years'' be conducted
for informational purposes only, if at all. The value of estimating
emissions out 20 years or more is marginal at best given the models and
tools in place and the margins of error inherent in such estimates. If
this analysis is done for informational purposes only, it will give the
MPO and applicable air quality agency a rough sense of whether there
may be an issue in the future, but would not carry any new real or
perceived policy or regulatory burdens.
The second change we request is that the MPO be required to consult
with the applicable air quality agency on the end date of the analysis,
but that the concurrence of such agency not be required. U.S. DOT (FHWA
and FTA) is responsible for making the final conformity determinations
and the MPOs are the regional entities charged with responsibility for
developing the initial determinations, through a prescribed interagency
consultation process. This process is established in MPO regions and
works. We suggest this is the process that should be used to determine
the horizon for the conformity determination. With this change, H.R. 3
would not confer new authorities on air quality agencies and, in
effect, provide air quality agencies veto power in the conformity
process.
PROVIDE MORE PREDICTABLE AND COORDINATED PLANNING UPDATE CYCLES AND
CONSISTENT PLANNING ASSUMPTIONS.
Transportation plans must be updated not less frequently than every
three years. Transportation Improvement Programs (TIPs) must be updated
every two years. In addition, there are various SIP-related triggers in
the transportation conformity rule that require plan and TIP updates
within 18 months of various SIP actions. State Implementation Plans
(SIPs) do not have a regular update cycle and are not updated
frequently.
This has created a situation where transportation plans are updated
regularly while SIPs are updated on a discretionary and sporadic basis,
resulting in overlapping plan cycles, public confusion, less time spent
on other important planning tasks and a continuous conformity process
in many areas. In addition, the unpredictable nature of the 18-month
SIP triggers for conformity redeterminations has caused uncertainty in
the transportation planning and TIP development processes. Because
transportation plans, TIPs and SIPs must use the latest planning
assumptions each time they are updated; the assumptions used in SIPs
tend to be older than--and inconsistent with--those in transportation
plans and TIPs. AASHTO believes that the conformity process must
provide a more predictable and coordinated transportation and air
quality plan update cycle along with consistent planning assumptions.
AASHTO's Policy Recommendation: Require update of metropolitan
transportation plans and TIPs at least every five years with
transportation conformity determinations required after each update,
unless more frequent updates of the TIP are needed.
To address this issue we support the following provision of H.R.3, The
Transportation Equity Act: A Legacy for Users but believe it
could be improved .
TIP Update Cycle (Section 6001)
We support H.R. 3's provision that provides for a four year update
of the TIP but believe that it could be improved by extending the
update cycle to five years.
REQUIRE CONFORMITY ONLY FOR NONATTAINMENT AND MAINTENANCE AREAS
Transportation conformity determinations must be undertaken for all
nonattainment and maintenance areas. Currently, if an area has
completed its 20-year maintenance period prior to the last year of
transportation plan, the area still must meet conformity requirements
all the way to the last year of the transportation plan--the ``horizon
year'' (e.g., end of 20-year maintenance period is 2006 and the
transportation plan horizon is 2025). Because some areas are
approaching the end of their 20-year maintenance periods, this
situation is beginning to surface. Similarly, when Maintenance Plans
reach their 8-year update point, the new SIP budget need only be for 10
years out, rather than the 20+ years required for transportation plans.
AASHTO's Policy Recommendation: Clarify that conformity
determinations are required only for that time period when an area is
classified as nonattainment or maintenance, and analysis must be done
only to the end of the maintenance period.
To address this issue we believe that the following provisions of
H.R.3, The Transportation Equity Act: A Legacy for Users could
be improved.
Conformity to the End of the Maintenance Period (CAA section 175(A)(b)
H.R. 3 section 1824(c) would limit conformity to the end of the
maintenance period required under CAA section 175(A)(b), provided the
MPO and air quality agency agree. This would, as noted above, confer
new authorities to the air quality agencies, which would be
inconsistent with current practice and with the extensive consultation
process currently in place in each nonattainment and maintenance area.
We believe that conformity should be limited to the end of the
maintenance period, which is at a minimum 10 years after an area
attains federal standards.
SYNCHRONIZE SANCTION CLOCKS
In the event of a conformity lapse, there are immediate
consequences in that only certain types of transportation projects may
proceed until the lapse is resolved. In contrast, in the event of a SIP
failure, there is an 18-month period in which to correct the SIP
failure prior to the imposition of sanctions. In essence, a conformity
lapse functions as an immediate sanction with no time permitted to
correct situations that might have led to the lapse.
AASHTO's Policy Recommendation: Align the conformity lapse with
same 18-month time clock for imposition of sanctions for SIP failures
in order to provide a similar amount of time to correct deficiencies in
transportation plans and TIPs.
To address this issue we support the following provisions of H.R.3, The
Transportation Equity Act: A Legacy for Users.
Conformity Lapse (Section 1824(e)
We support the H.R. 3 language on conformity lapse, which would
allow 12 months to correct a Plan/TIP deficiency. While still not
totally consistent with the SIP process, this provision would make the
conformity process more consistent with the State Implementation Plan
(SIP) process for air quality planning which allows 18 months to
correct deficiencies prior to the applicability of any sanctions.
TRANSITION TO NEW STANDARDS
Transition to New Air Quality Standards Before New Budgets are
Available
While H.R. 3 does not address this issue, we support adding
language that would allow areas that are transitioning into new air
quality standards to use existing motor vehicle budgets for the same
pollutant or other emission tests to demonstrate conformity before new
budgets are available. There are numerous inconsistencies in the new
nonattainment boundaries for ozone, for example, where the boundaries
are generally not the same under the new 8-hour standard as they were
under the 1-hour standard. H.R. 3 should provide MPOs the option to
either use the existing 1-hour budget or other emission tests (new
interim emissions tests are included in the recently updated conformity
rule). This would help address the boundary inconsistencies in the way
that makes most sense in each nonattainment or maintenance area. The
established interagency consultation process would be used to determine
which tests or budget should be used.
CONCLUSION
We are encouraged by the proposed changes in the transportation
conformity process and request the changes discussed above. AASHTO
appreciates the opportunity to work with you and your subcommittee, and
looks forward to continuing to explore approaches with you for
improving transportation and air quality planning through the
conformity process.
Mr. Hall. Thank you, Mr. Njord, and we appreciate you, and
appreciate all of you that have taken your time to come and
prepare for this, and travel here, and give testimony, and
travel back, and to keep with your schedule. I will ask you the
first question, if it is okay, Mr. Nottingham, we will start
with Mr. Njord.
In your testimony, you state that regional emissions
analysis for the out years be conducted for informational
purposes only, if at all. I think we all recognize that
predictions are fraught with uncertainties. However, don't you
agree that such an analysis, even with incomplete models or
margins of error, provide some basis for the policymakers and
transportation planners to maybe initiate some changes for
future regional transportation, and for air quality planning?
Wouldn't that be some help?
Mr. Njord. I believe that the out years, there is some
value in doing that analysis just for a check. But for
conformity, it doesn't make sense doing conformity out 20 to 30
years, out when it is like shooting an arrow. It is only
accurate so far. If you are trying to shoot an arrow 1,000
yards, you are not going to hit your target, but under 100
yards, you can certainly hit the target. It is the accuracy of
the information that I would be concerned with there.
Mr. Hall. All right. Mr. Strickland, do you have any
questions for this witness.
Mr. Strickland. No, sir. Thank you.
Mr. Hall. We are trying to accommodate your schedule, and
Mr. Shimkus. Or good doctor, do you have any questions?
Mr. Shimkus. For Mr. Njord, Chairman, just the--I would
like to--I know you addressed the issues of the out years, and
Mr. Njord, why do you have--and excuse me if this was asked, I
was talking to Dr. Burgess, why do you have objections to the
requirements that MPOs and air quality agencies must agree to
the final conformity determinations?
Mr. Njord. Thank you for that question. We have a great
relationship with our air quality agencies on the State level,
and work with them on a continuous basis to implement our SIPs
and our transportation improvement programs. If, in fact, a
concurrence is required, it empowers the air quality agencies
more than they are today. Now, if we want to create an
additional check-off, then that is the way to do it. What we
were hoping to do was to be able to streamline this process, so
that we can get through conformity quickly. I don't think we
disagree with them. It is just a matter of authority.
Mr. Shimkus. Yeah, I think--I guess our confusion and mine
is that, obviously, the current practice almost bespeaks that
this is already occurring, and the question is do you codify it
in practice, and you would disagree with that?
Mr. Njord. We would hope to streamline, rather than to
codify a process that already works. Why change it? It works
now.
Mr. Shimkus. Okay. That is all I have, Mr. Chairman.
Mr. Hall. All right. I reclaim my time. Doctor, do you have
questions for Mr. Njord? Thank you. I reclaim my time. I think
I have 3\1/2\ or 4 minutes left.
Mr. Nottingham, what are the six areas that are currently
in a conformity lapse? You discussed a mismatch of
transportation and air planning in your testimony, and the fact
that the assumptions underlying transportation plan emissions
and emissions budgets might be different.
Mr. Nottingham. Chairman Hall----
Mr. Hall. Do you have examples of this?
Mr. Nottingham. Oh, yes, sir. If the question is--I am
sorry, I misheard the question. We currently have, as of today,
six areas in the country that are actually in a lapse. I can
give you where they are if you would like.
Mr. Hall. If you would.
Mr. Nottingham. Certainly, sir, and I can give you a little
bit of information about them. In San Bernardino County,
California, in--specifically in the Searles Valley portion--
beginning back in April 22, 1999, the lapse began. They are
expected to be out of their lapse this coming June 15, and the
reason--and let me know if you want me to skip over the
reasons. I can just give you----
Mr. Hall. Please continue.
Mr. Nottingham. Yes, sir.
After San Bernardino County, it is Billings, Montana; Lake
Tahoe, in the California/Nevada border region; Dover and Kent
County, Delaware; Sacramento, California; and Reno, Nevada.
Mr. Hall. Are any of these examples in conformity lapse,
what they call conformity lapse?
Mr. Nottingham. Yes, sir. All of them are.
Mr. Hall. All right. Will H.R. 3 help alleviate this
problem by synchronizing studies, or in any other manner?
Mr. Nottingham. Yes, sir. They would. Speaking in general,
many of the lapses we see, both currently and in general, are
really, as Director Njord touched on, almost ``administrative
and paperwork lapses,'' due to the fact that we don't have the
right synchronization right now. We have got air quality plans
with certain horizons, typically 3 years now, and
transportation plans with 20 and 25 year horizons. Therefore,
we have to take resources away from State DOT and MPO real
highway and transit planning to constantly be updating these
plans. Sometimes, people are working on the current 3 year air
plan and the next one at the same time. So certainly H.R. 3
would go a long way. We actually do think H.R. 3, supplemented
with a couple of the administration's additional proposals,
would even do a better job.
Mr. Hall. Well, I thank you for that, and you know, we hit
deadlines from time to time. Can you give any examples where,
for example, an area fell into what they call conformity lapse
because it couldn't finish a conformity determination in time,
even though it didn't exceed its emissions budget?
Mr. Nottingham. Yes, sir, Mr. Chairman. In Billings,
Montana, also in the Lake Tahoe region, and in the Dover and
Kent County, Delaware regions. Those are all currently 3
examples where the conformity lapsed because deadlines were
missed. So the answer to your question is those 3 examples
currently, and many more in past years.
Mr. Hall. All right. My time is almost up. I recognize the
gentleman from Virginia.
Mr. Boucher. Thank you very much, Mr. Chairman, and while I
didn't make an oral opening statement, I had in my written,
prepared statement, which is now part of the record, thanks to
you, and to Chairman Barton, and to your outstanding staffs for
their bipartisan work with us, in structuring the language that
is in H.R. 3, which is the subject of today's hearing. We very
much appreciate your cooperation and the good work on both
sides, which has led to the construction of that language.
Let me ask our witnesses if the administration supports
that language, the language that is in H.R. 3, which would
address the lapse problem. Mr. Nottingham.
Mr. Nottingham. Thank you, Mr. Boucher. We--the
administration--does support many of H.R. 3's conformity
proposals. We think they are on track and going after the same
problem we are trying to address, which is to increase the
synchronization you have heard about today, try to integrate
more closely the transportation and the air quality planning
processes. I will say that we do share Mr. Njord and AASHTO's,
and many other stakeholders' concerns that putting into code,
by codifying almost a veto, really a veto role for the air
quality agencies in transportation conformity determination
requirements, we think is going a little too far. We understand
it is well intentioned, but in reality, all the States' DOT
heads and air quality heads report to the same elected
official, the Governor in most cases, almost all cases, and
they work pretty well together. We are worried that having an
extra item in code may just create some unforeseen problems.
As far as--maybe if I could pick one other area that----
Mr. Boucher. Well, I understand you are offering some
suggestions for modifications of these provisions.
Mr. Nottingham. Yes, sir.
Mr. Boucher. But in the main, you support what--the
direction we have taken----
Mr. Nottingham. Yes, sir. For example, moving from 3 to 4
years on the conformity and planning horizons is the right
direction. We would ask you to consider taking that an extra
year to 5, but you are on the right track with H.R. 3.
Mr. Boucher. All right. That is good. Mr. Holmstead, do you
agree on the--with the comments Mr. Nottingham has made?
Mr. Holmstead. Thankfully, yes. I do. We are on the same
page on this one. I think we support, generally, the direction
that H.R. 3 is moving in. This--particularly this issue of the
4 versus 5 years. One of our concerns has just been that these
plans become more meaningful and better if they don't happen so
often.
Mr. Boucher. But in the main, you do support the trend that
is reflected in these changes?
Mr. Holmstead. Yes.
Mr. Boucher. All right. And just to highlight the need for
these changes, to talk a little bit about what is happening
today. I understand that there are six areas that are currently
in lapse. Describe, if you will, what is happening in these six
areas. Are Federal funds for projects being restricted as a
consequence of the lapse, and are these lapses primarily caused
by the lack of synchronization in the planning cycles between
State implementation plans and transportation implementation
plans that you referred to earlier? Who would like to answer?
Mr. Holmstead?
Mr. Holmstead. Well, I have to confess that I am not
familiar with the details in each of these----
Mr. Boucher. I think Mr. Nottingham probably is the proper
person to answer. Mr. Nottingham.
Mr. Nottingham. Sure. Thank you, Mr. Boucher. In general,
the current six areas that are lapsing are not experiencing big
problems with project delays. And that, I think, speaks well to
the regime generally as it has worked, which is when you do
lapse, you can still continue projects that have begun and are
already underway in a certain phase. For example, if you are in
the right-of-way phase, buying real estate for a project, you
can keep going with right-of-way, but if you are in lapse, you
can't go to that next phase, which typically would be actual
construction, or perhaps preliminary engineering.
And most of these cases are shorter term. I will say there
is a little bit of a hidden cost often, where it relates a lot
to construction seasons. I know from the part of southwest
Virginia you are in, sir, you understand very well that there
are some times of the year where it just isn't really possible
to be laying asphalt and building roads. Chairman Hall's area
of the world is a little more fortunate. They can pretty much
build almost all year round. If you do have even a 1 or 2 or 3
or 4 month lapse, and it is the wrong time of year, it can push
you into another construction season. On paper, that looks like
not a big deal. But, when you realize that every year we face
enormous inflation costs, and you look across the country, it
is kind of a quiet, but very real cost concern to us.
Mr. Boucher. And are the reasons for the lapses in these
six areas the lack of synchronization between the SIP and the
TIP that you have described earlier, or is it a basic conflict
in policy between the transportation implementation plan and
the State implementation plan?
Mr. Nottingham. Sir, I would say largely the former. And
specifically, in the first three I mentioned, in San Bernardino
and Billings and Lake Tahoe.
Mr. Boucher. Would you say that that condition is
characteristic of lapses when they normally occur around the
Nation, that it is usually because of a lack of synchronization
in schedules?
Mr. Nottingham. If I could, let me just confer with staff,
to make sure I get that right. I am advised, sir, that in most
of the cases, it is. It really relates to missing the 3 year
time cycle deadline. In transportation circles, 3 years is
actually a pretty short window, when it takes, typically,
unfortunately--and we are working with some other committees on
some of these problems--but often, 4 or 5 years to get through
the environmental process in a project, 3 years is--and then
working on the next 3 year cycles is a very short window.
Mr. Boucher. Okay. Mr. Holmstead, in the time I have
remaining, let me ask you about your recommendation that 5
years be the date for conformity updates, rather than the 3
years, which is current law. Why choose 5 years? What is the
magic of that number? Do you have any studies or any empirical
data showing that 5 years is more appropriate than 3, or is it
simply a matter of saving work and saving money?
Mr. Holmstead. Well, it is based on the judgment of people
from both EPA and DOT, and State and local officials who work
on these plans, and one of the concerns, as I think you know,
is the 3 year cycle comes around so quick that people are just
doing the paperwork to comply with the date, and I think our
judgment was that if you expand that to 5 years, they become
more meaningful exercises, and you get better modeling, you get
better analysis. That could be said of 4 years, I suppose, but
5 years, actually, better aligns with sort of the current
transportation planning process, and that is why we support the
5 year process, as opposed to just 4.
Mr. Boucher. Did you have any analysis of the consequence,
in terms of emissions, if we go from 3 years to 5 years, as you
recommend?
Mr. Holmstead. I wouldn't expect to see any emission
consequences. I can't tell you that we have analysis, but it
would be, I think, difficult to quantify any difference between
4 and 5.
Mr. Boucher. Well, in any event, we have settled on 4, in
the draft that is pending at the present time. You don't have a
problem with that, I suppose.
Mr. Holmstead. We would rather have 4 than 3.
Mr. Boucher. Okay. I could anticipate that answer. Thank
you very much, Mr. Holmstead and Mr. Nottingham. Did you want
to comment, Mr. Nottingham?
Mr. Nottingham. If it would be okay. Just very briefly,
sir, because your question touches on a very important point,
the 5 year difference compared with 3 years. In answer to your
second question, if I understood it correctly, there would not
be any implications on any actual conformity determinations by
going from 3 to 5. In the event that new projects were added or
new data came in, the conformity process would automatically be
triggered regardless of the 3 or 5 or 4 year window. So there
is a safeguard there. A point I think is also worth making is
that the general conformity timeline that covers pretty much
the whole world, except the highway and transit sector, is 5
years. So the fallback time horizon for conformity universally
is 5 years. Specifically to highways and transit, it is 3. And,
if you look, we have got, I think, by our count, about 7
different timeframes we deal with in planning and air quality
conformity work. Going to 5 years would greatly harmonize all
of those.
Mr. Boucher. Thank you both. Thank you, Mr. Chairman.
Mr. Hall. Well, thank you. And thank you, gentlemen. The
Chair recognizes Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman. And I was going to
recognize Bob Meyers, who--a former committee staffer, but he
snuck out, so I don't know where he went to. But while I have
some time, I may be getting off the subject, but I am
wondering, two areas which we are going to be addressing in an
energy bill. One is trying--in the last bill, H.R. 3, there was
a move to address the balkanization of fuels, based upon local
area SIPs and the mix--the multitude of mixtures of fuels in a
very short distance. If we do that, does this affect this
process at all?
Mr. Holmstead. It really is a completely separate issue.
I--we recognize that the balkanization of fuels issue is an
important one to consider. As you know, Mr. Shimkus, we have
tried to work on some ideas to address that, but I don't really
think it has an impact one way or another on the conformity
process.
Mr. Shimkus. What about the--there is another provision in
the bill that deals with--and my crack staffer's wife is in the
process of giving birth to a baby right now, so he is not here
to give me the proper terminology, but in--across--there is
regions in the country where they are in nonattainment
primarily because of activities across State lines. In my area,
because of St. Louis, and that is not uncommon, and so--and
part of the issues was an acknowledgement of that, an
acknowledgment of the improvements made locally, and not to
be--and not a disincentive based upon what is not controllable
by the State. Has that evolved in any part of this debate,
either?
Mr. Holmstead. We refer to that as the transport issue.
Mr. Shimkus. That is right.
Mr. Holmstead. As pollution as transported from one
region----
Mr. Shimkus. Right.
Mr. Holmstead. [continuing] to another. Again, I think that
that is largely unrelated to this issue of transportation
conformity. One of the concerns that I think people have
legitimately had is if you are in a small area with very little
traffic, you may be in nonattainment primarily because of
emissions from another area, and the question is well, gee,
does it really make any sense for us to do all this
transportation planning, when transportation sources are not a
big--not a significant issue in our area. We have, by
regulation, tried to address that already by allowing an area
to show that transportation is sort of a de minimis issue, and
not have to do the transportation conformity in those
situations. And whether that is something we can better do
through legislation, I think, we would be open to talking
about, but we do try to accommodate that within our existing
regulatory structure.
Mr. Shimkus. And just to stay on this type of direction, if
we make the assumption, and I am just--that H.R. 3 of the last
Congress will be pretty much the base of the national energy
policy. It may not be. Is there anything in there that would
affect this debate on this bill that we are referring to, I
guess, which is H.R. 3?
Mr. Holmstead. I don't think so, but I have to----
Mr. Shimkus. It might be good to know, because then, we
would be going crossways.
Mr. Holmstead. I think the answer to that is no, but let me
just suggest that if we--that we go back and think as to
whether there is any such issue, and if so, we will certainly--
--
Mr. Shimkus. Yeah. Raise it with my----
Mr. Holmstead. [continuing] advise the----
Mr. Shimkus. [continuing] staff--and my staff would be
happy to reconcile any differences.
Mr. Holmstead. Okay.
Mr. Boucher. Thank you. Mr. Chairman, I yield back.
Mr. Hall. Thank you. The Chair recognizes the gentleman
from California, Mr. Waxman, for 5 minutes.
Mr. Waxman. Thank you, Mr. Chairman, and Mr. Holmstead.
Good to see you again, I suppose. Except I do want to take
this opportunity to tell you how deeply disappointed I am about
the communications between your office and members of this
body, because it appears that they have entirely broken down.
We have made many requests for information, and I don't think
you have been responsive. The last response I received from you
to an information request arrived on November 17, 2004. That
request had been outstanding for almost 5 months. Your response
was 4 pages long. It arrived on the morning of November 17,
just minutes before the EPA Deputy Administrator was scheduled
to testify before the committee in which I am the Ranking
Member. Among other incidents, you previously failed to respond
to a set of questions for the hearing record on clean air
issues for 8 months after I sent you the questions, and I have
raised the issue before with you at hearings like this. Back in
May 2002, and again in July 2003, but I must tell you, I don't
see any improvement.
Most recently, you failed to respond to questions for the
hearing record from a November 2004 hearing. That was last
November. It is now March. Today, again, just minutes before
this hearing, I received a partial response to the request,
with a promise to provide the remaining responses later. I see
a clear pattern, and I consider it unacceptable.
Mr. Holmstead, do you dispute Congress' authority to
conduct oversight of Federal agency activities?
Mr. Holmstead. No, I certainly do not. We just are
obviously trying to take care of all of the obligations that
you have given us, and so, we do our best to try to make sure
that we respond to requests, while at the same time, we are
meeting statutory and judicial deadlines on other things. But I
can tell you there are people who put in an----
Mr. Waxman. These are information requests----
Mr. Holmstead. [continuing] enormous amount of time.
Mr. Waxman. [continuing] Mr. Holmstead, that address
serious matters. For example, the questions I and my colleagues
sent in November 2004 concern EPA's pending rule to regulate
mercury emissions from power plants, and many of the same
issues we raise were flagged by the EPA Inspector General in a
recent report. The Inspector General strongly criticized EPA
for failing to conduct an unbiased technical analysis needed to
support the rule. We had inquired in detail about EPA's plans
for such an analysis. Do you disagree that these are important
issues?
Mr. Holmstead. No, these are certainly important issues.
It----
Mr. Waxman. In your testimony today, you made a number of
valuable points about the importance of transportation
conformity requirements to clean air and to public health, but
I feel you undermine your credibility by repeatedly failing to
respond in a complete and timely manner to basic oversight
inquiries.
I would like to discuss one other matter with you today in
the short time I have left. Another key piece of the clean air
agenda is the implementation of the new national, health-based
standards for fine particulate matter. Cities and towns across
the country currently have unsafe air quality, due to
particulate pollution. Fine particles aggravate heart and lung
diseases, and for tens of thousands of Americans, cause
premature death. The administration should be doing all it can
to move forward on this problem. Specifically, EPA must issue
the fine particulate matter implementation rule, which gives
the States guidance in developing their cleanup plans. But
instead, we have seen foot-dragging and delay.
Former Administrator Levitt testified before the Senate
last April that EPA intended to propose the implementation rule
in June 2004 and finalize it in late 2004, or early 2005. EPA
sent the proposal over to OMB formally last October. OMB has
now exceeded its review period, but still has not released the
rule. When is the administration going to issue this important
rule?
Mr. Holmstead. I believe it will be fairly soon. We are
trying to coordinate a number of important rules, including
rules that will do more than this country has ever done to
reduce fine particle pollution, among those, the non-road
diesel rule, among those, the clean air interstate rule, both
of which will achieve greater emissions reductions than
anything any administration has ever done. We are obviously
working to try to----
Mr. Waxman. Well, you don't--you are not going to do it
until the rule is promulgated, so in this particular area----
Mr. Holmstead. No, no. We actually regulate directly, so
we--the implementation rule you refer to is obviously
important, but we want to coordinate that with the other rules
that are actually achieving immediate reductions.
Mr. Waxman. But this rule won't go into effect until OMB
signs off on it. Isn't that correct?
Mr. Holmstead. The process by which States take action to
improve their air quality is not dependent on that rule.
Mr. Waxman. No, but this is a guidance for the States.
Mr. Holmstead. This is a guidance for the States----
Mr. Waxman. You said soon.
Mr. Holmstead. [continuing] and we are trying to----
Mr. Waxman. Soon means what?
Mr. Holmstead. I would expect that----
Mr. Waxman. Weeks?
Mr. Holmstead. [continuing] we would be in a position to
propose the rule within the next month or 2.
Mr. Waxman. Okay. Thank you, Mr. Chairman. I see my time is
up.
Mr. Hall. The Chair recognizes Mr. Burgess, the gentleman
from Texas.
Mr. Burgess. Thank you, Mr. Chairman, and I apologize for
being out of the room for part of the time. Of course, the
Chairman and I represent the same area of north Texas, which is
under some--what are we calling it now, nonconformity issues,
and I have just had a lot of concerns that highway money would
be diverted from the north Texas area under the nonconformity
rules. Our biggest problems in the Denton County area that I
serve are--our biggest problems are, in fact, roads that were
never meant to handle the traffic loads that they are handling,
and the resultant congestion is responsible for a significant
amount of air quality problems, so what are we doing to make
certain that while we are trying to enforce compliance with
conformity, that we are not actually making the problem worse?
If we divert highway funds from our area to west Texas, we are
not--we may keep the State's rate of return, but we are really
doing little to alleviate the air quality issues.
Mr. Nottingham. Dr. Burgess, if I may, you raise a very
important question. It is one I wrestled with as the Virginia
Commissioner of Transportation, where we had several fast
growing suburban or urbanized areas, not too unlike north Texas
in the Dallas region, that were desperate for some new
capacity, and for some congestion relief, and other
improvements, and were constantly bumping up into the
conformity ceiling and headroom, and as a State Commissioner,
it is very tempting to just put your extra resources elsewhere
in the Commonwealth or the State, where you don't need to worry
about that. And that is great for those regions, but often,
they are not the ones with the traffic, or the severe traffic
problems. They all have needs, but--for sure, but I think some
of the proposals we have talked about today that are in H.R. 3,
and also, some additional ones in the administration's SAFE-TEA
proposal, by--would improve the synchronization, as we have
talked about, better align the air conformity planning process,
and the transportation planning process.
One of the problems we have today, sir, is technology, and
this is a good part of the problem, technology, cleaner fuels,
some of the good work that the EPA has done over the years,
good work that our industry has done, the auto industry and
others. The transportation piece of the clean air problem is
getting much better very fast, and has over the last 35 plus
years, and so, when we look out at a 20-year transportation
plan, and compare that to a 3-year air quality plan, in a fast
growing region, and have to guesstimate what the technology and
the actual air conditions might be, mind you, the trends are
positive now, it becomes very speculative. And to put a--to
raise the specter for a region, that they may have to pause
their major new projects while they recalculate estimates,
rerun projections, it is a very tough nut to crack, and I don't
know if I have answered your question, but I think that H.R. 3
is on the right track to meet the concern that you have raised.
Mr. Burgess. Is there also any attention paid to the
transport of, say, ground level ozone from other areas, and in
our north Texas area, we do get some transport of ground level
ozone from the Houston Gulf Coast area, and while those numbers
may not be very high, in the range of 15 to 35 parts per
billion, if we are only out of compliance by 1 or 2 parts per
billion, obviously, that is a significant--that transport
ground level of ozone transport is a significant contribution
to us being out of compliance.
Mr. Holmstead. That is an issue that we are well acquainted
with, and actually, have tried to address that in some
regulatory changes, including a change that was overturned by
the courts when we tried to accommodate that so we could better
synchronize the schedules. I know there has been an effort to
try to recodify that, and we would support that kind of an
effort. The other thing I would say, though, is to some extent,
in Texas, you are fortunate because the transport comes from
the same State, and so what we are seeing in the State of Texas
is a concentrated effort on the air quality side to try to make
sure that the problems in the north Texas area, and their
relationship with the Houston area, really are all considered
together, and we think the State of Texas is actually moving a
long way in the right direction to address both of those.
Mr. Burgess. I would just make the point that we do receive
some contribution from the burning of the sugar cane fields in
Mexico, as well as occasionally, we get the brown muck moving
in from the Mississippi Valley.
Thank you, Mr. Chairman. I will yield back.
Mr. Hall. Thank you. The Chair recognizes the gentleman
from Texas, Mr. Green.
Mr. Green. Thank you, Mr. Chairman, and all due respect to
my doctor colleague, we will deny we send anything up to the
Dallas-Fort Worth area from Houston. But--again I want to
welcome our Administrator. I have some concerns about the
transportation conformity process. In the last session of
Congress, Congressman Brady and I from Houston, or the Houston
area, introduced legislation that would allow for grandfathered
projects to go forward under a conformity lapse, and the
concern that we have is that we have these projects, and yet,
for some reason, they are--we are in noncompliance, and those
projects stop. I know that is the teeth that EPA has, but it
sure seems like economic waste in particularly urban areas, or
anywhere where you have projects that are underway, and they
get partially built, and then they are halted because of
Federal law.
Having said that, I want to give you an opportunity to
defend the necessity of the transportation conformity process
as a whole, and is there a way we could split the difference if
something is going on now that may actually help us with our
both traffic, and ultimately, our air problems? Is there a way
we can have the best of both worlds, both the carrot, but also
the stick, to be able to finish some projects?
Mr. Nottingham. Thank you, Mr. Green, if I could. I think
the transportation community welcomes a little bit of a stick.
And all of the State DOTs have numerous environmental experts
now. The transportation sector as a whole--sort of an old
saying--is not your father's Oldsmobile. It is a whole new
world out there, and so, the fact that the Clean Air Act is
important, and that the transportation community does embrace
it, that is not a problem. The fact that there are very real
sticks, to use your word, is not a problem.
I will say, we have talked earlier today about the need to
better align and coordinate some of these planning horizons,
because too often, the stick gets triggered really
unnecessarily because there is a disconnect, not because there
a wrongdoer in a State agency trying to wrong the environment.
It is just the system and the process--the time it takes to
update a transportation plan and the associated conformity
determination every 3 years, to remedy, rectify that, and to
marry it up with a 20 or 25 year transportation plan. And so,
doing some of the things that H.R. 3 does, combined with maybe
a couple other things that our administration bill does, and
that the Senate bill does, really would help that matter. But
we are not--I am not--here to say do away with some of the
strong requirements, because they are there for a good reason.
The transportation community welcomes them, by and large, and
it--the grandfather provision--is an interesting one, because
places like Atlanta, and other places, have really had to
wrestle over the years with how to keep major projects, that
they have invested millions and millions of dollars on, moving
while they sort out----
Mr. Green. And again, knowing Atlanta, but knowing the
Houston area, we have some of the same problems, because again,
we are--some of those projects actually would help our quality,
if we could get them done. Recently, I had a real productive
meeting with Jeff Clark from your EPA's air office, where we
learned that EPA activities are coming soon, under the current
law, to reduce industrial air toxic levels. Could your office
provide any estimates on the future reductions of air toxics,
both from the mobile sources that we are talking about here,
that the Houston area may see under current law, because our
concern, and there was a series of articles a few weeks ago
concerning the toxins, but they were mainly from--toxics, but
they were talking about stationary sources, our industry. And
under provisions of our Highway Bill last year, do you see any
weakening in pollution control from mobile sources in general
under this legislation?
Mr. Holmstead. Really, there are two different questions
you ask.
Mr. Green. Yes.
Mr. Holmstead. One is about the toxics from stationary
sources, the toxics from--and then, the second one is the
toxics from mobile sources.
Mr. Green. Well, then, since we are dealing with highway,
this is a mobile source problem, I assume.
Mr. Holmstead. Right. Right. I don't think any of the
provisions that are in your bill would have a significant
impact on what we call mobile source air toxics one way or
another. With respect to the overall reduction of air toxics
emissions, we are now nearing the end of the first stage of the
process of controlling those pollutants. I know that
nationwide, our estimates are that that has reduced air toxics
by about 1.7 million tons a year. I don't know exactly what
that means for the Houston area, but all of those stationary
sources, just in the last little while, have been required, or
will soon be required, to make significant reduction on air
toxics emissions, and the city and its residents will soon see
the benefit of those.
Mr. Green. Okay. And I know on a separate issue, Mr.
Chairman, one of our concerns is, at least in the Houston area,
is that it seems like some of the toxins from the upsets or the
accidents are actually so much more than the permit, and
somehow, I know, working with my local officials, my State, and
hopefully, EPA in their regional office, will be able to see
what we can do to handle that.
Thank you, Mr. Chairman.
Mr. Hall. Thank you. The Chair notes the presence of the
Chairman of Energy and Commerce, the gentleman from Texas, Mr.
Barton, recognized for as much time as he consumes.
Chairman Barton. Well, thank you, Mr. Chairman. I won't
take very much time. I want to compliment you for holding this
hearing, and I want to thank our two witnesses from the EPA and
the Department of Transportation for being here. What we are
trying to do is hold a hearing on a piece of legislation that
was in last year's highway, that we worked with on this
committee in a bipartisan basis. It is our committee's
jurisdiction, but we have acknowledged to the Transportation
Committee that we will put it in, that we did put it in last
year's highway bill, and we are going to put it in this year's
highway, unless there's some controversy that erupts in this
hearing.
It is just common sense. It conforms the transportation
plan, the highway plan, planning horizon, with the
environmental horizon of the EPA. It is not changing any
environmental law, or anything like that. It is simply allowing
communities that have ongoing projects not to have those
highway projects automatically stopped, because there is a
lapse or a conformity difficulty between the two statutes. So
we worked in a bipartisan basis to put this proposal together.
It was in last year's highway bill. It did pass the House of
Representatives. Our intention is, if this hearing goes well,
to put it in this year's highway bill, and from what little I
have participated in the hearing, it looks like we are having a
good hearing. So I want to thank our witnesses, and I would
thank you, Mr. Chairman, for holding this hearing.
With that, I would yield back.
Mr. Hall. I thank the Chairman. The Chair recognizes Ms.
Solis, the gentlelady from California, for 5 minutes.
Ms. Solis. Thank you, Mr. Chairman, and I also want to
recognize that you are having a hearing on this very important
issue, and want to thank you and our Ranking Member also for
that, and welcome the guests here.
I represent a district that is heavily impacted by various
high levels of smog, carbon monoxide, PM<INF>2.5</INF>,
PM<INF>10</INF> standards, leaving, in many cases, the air very
unbreathable. We have population there that is largely
Hispanic, about 70 percent, and more than twice as many of our
children there are affected by asthma, high rates of asthma. We
have very, very large freeways, congestion, and in some areas,
even--in my district, we even have some rock quarries where
there is a high level of dust particulate matter that consumes
most of the area.
I have been working for the last few years on environmental
justice issues, and wanted to ask you if you could answer some
questions for me, Mr. Holmstead. Can you tell me what impact on
underserved communities a planning delay, under both the House
language and the Senate, and administration language is? That
is one. Second, can you please tell me in detail what process
you used, EPA, to come to that conclusion, and then, third,
could you tell me what outreach efforts you conducted to reach
out to communities that are underserved, that are most heavily
impacted?
Mr. Holmstead. The planning delays that you refer to, does
that mean the extent of time between the----
Ms. Solis. Yes. Yes.
Mr. Holmstead. We actually think that that will improve the
plans, and I----
Ms. Solis. As it affects underserved communities? Can you
explain that?
Mr. Holmstead. Well, we think that it will improve the
plans everywhere. Our goal is to make sure that every area of
the country has healthy air, and so we don't really distinguish
one community from another. We want to make sure your community
has clean air to breathe. We really--that is our goal for the
whole country. It--these--this conformity process is a part of
a much larger effort, and we are spending enormous time and
effort on it. We hope that by giving a little more time between
these plans, we will actually get a better result by having
better coordination, more detailed analysis. And I think
generally, people agree on that. There is some debate about
whether it should be 4 years or 5 years, but we think that will
achieve a better result. We think there is a number of other
things that can be accomplished, in part through the
transportation bill, things such as diesel retrofit, anti-
idling programs, things that we and DOT are both working on,
that have very significant improvements, especially in heavily
urbanized areas. And I will say California has been at the
forefront of supporting some of those efforts. I think the
State now----
Ms. Solis. They are putting--yeah, in many cases----
Mr. Holmstead. Yeah.
Ms. Solis. [continuing] they are at the lead, yes.
Mr. Holmstead. Yeah. And they are putting, like----
Ms. Solis. Right.
Mr. Holmstead. [continuing] as of this year, $140 million a
year into these diesel retrofit programs that should make a
significant difference. So we do recognize that there are
areas, particularly heavily urbanized areas, where this is an
important issue, and we are working not only at headquarters,
but through our regional offices, to better address those.
Ms. Solis. Have you done any outreach to underserved
communities at all? Is that anywhere in a part of your design?
Mr. Holmstead. Very much it is. We have a----
Ms. Solis. Can you get us that information?
Mr. Holmstead. Yes. I would be happy to.
Ms. Solis. Okay. Because I want to go on to one more
question. You actually wrote an editorial, in the Chicago
Tribune, that the President's Clear Skies proposal has been
endorsed by the National Governors Association, National
Association of Counties and the U.S. Conference of Mayors and
National Conference of Black Mayors. Is that, in fact,
accurate? Did they, indeed, endorse this piece of legislation?
Mr. Holmstead. Apparently, it was not accurate. I believed
that it was. They--I think at least one of those groups said,
is they endorsed the concept of a multi-pollutant bill that is
very close to the Clear Skies Act, but they had made it clear
that they don't specifically endorse one act or another. So, I
have learned my lesson, and I will be more careful about----
Ms. Solis. And that was an editorial that you wrote.
Mr. Holmstead. That was an--it was a letter to the editor
that I wrote.
Ms. Solis. Right. So it was inaccurate.
Mr. Holmstead. Yes.
Ms. Solis. Okay. Thank you very much.
Mr. Holmstead. That--only that part of it was inaccurate.
Ms. Solis. Well, that is a large part. You are talking
about major organizations.
Mr. Holmstead. Yes.
Ms. Solis. Thank you.
Mr. Hall. The Chair recognizes the gentleman from
Pennsylvania, Mr. Murphy, for 5 minutes.
Mr. Murphy. Thank you, Mr. Chairman, and I also want to
thank you for holding this hearing, and appreciate our panel
being here.
A couple of quick things. Mr. Holmstead, in your testimony,
you mentioned several programs that will greatly reduce vehicle
emissions, namely the two diesel rules, and EPA's Tier Two
program, which enables more areas to meet Clean Air Act
attainment requirements. Can you comment on how the impending
promulgation of the Clean Air Interstate Rule next week will
further help communities meet these attainment goals?
Mr. Holmstead. The Clean Air Interstate Rule will actually
be the single biggest rule that EPA has done to improve air
quality since the 1970's, and throughout the eastern part of
the United States, it will substantially improve air quality.
Because largely, in that region of the country, we have a
regional problem, and so, it will, in fact, be from a public
health perspective----
Mr. Murphy. What area of the country?
Mr. Holmstead. Really, everywhere east of the Mississippi.
Mr. Murphy. Okay.
Mr. Holmstead. Pennsylvania in particular is one of the
areas that is affected by this transport of air pollution from
power plants, and this will reduce that very significantly, on
sort of a gradual glide path over time, and the idea has been
to do that while at the same time, preserving our energy
diversity.
Mr. Murphy. I know we have a problem like that in
southwestern Pennsylvania, the Pittsburgh region, which
receives daily windborne things from our good friends in Ohio
and West Virginia, which we would rather they keep. But the
second area here I wanted to ask about is, in the area of
transportation air quality planners. As this goes through, can
you help me understand this? When--since these groups have been
meeting together, when it comes under transportation planning,
and that has been a great benefit, does that include highway
planning? Does it also include mass transit?
Mr. Nottingham. Mr. Murphy, yes, both the transit and
highway plans are merged together into a regional
transportation plan.
Mr. Murphy. Because I wanted to ask this. I know in
Pennsylvania, our Governor is thinking of taking a substantial
part of highway funds, and transferring it over to our mass
transit agencies, SEPTA in Philadelphia, and the Port Authority
in Pittsburgh. And I am curious if such things require any sort
of review or planning, what impact that has on other areas of
air quality. For example, if highways are not widened as they
should, or ramps are not built as they should be, you end up
with a lot of traffic sitting still, dumping a lot of
pollutants into the air, even at the cost of just maintaining
mass transit at status quo, with no expansions at all. Is there
any requirements that such moves require any sort of review, or
can that just be done?
Mr. Nottingham. Yes, sir. We, the Federal Highway
Administration and the Federal Transit Administration, will
need to sign off on plan adjustments to reflect that type of,
what we call, flexing of highway funds into transit. There are
several ways, and Pennsylvania is very experienced at doing
this, of flexing highway moneys into transit. It is not per se
illegal or wrong at all. It cannot--those funds cannot go to
operating expenses for transit. My understanding is many of the
large transit agencies faced with cash-flow problems really
need money in the operating side, so we do keep an eye to make
sure that it is not going there. It is supposed to go to the
capital side. But----
Mr. Murphy. Capital side being what with mass transit?
Purchase of bus?
Mr. Nottingham. Purchase of--yes, sir. It would be rail or
bus infrastructure, typically. Perhaps a facility--to a
maintenance facility and that type of thing.
Mr. Murphy. So in that, you will do a careful review of
those things as the request comes through.
Mr. Nottingham. We will, sir, and I would be happy to keep
in close touch with your office. We have heard from a number of
offices within the Pennsylvania delegation, and to all those
inquiries, we have said we will closely coordinate with the
delegation.
Mr. Murphy. We are very concerned about that, because we
want to make sure that mass transit stays strong, but I know in
my district, unfortunately, I have a lot of interstate
highways, and no one ever bothered to finish the ramps, so we
have some ramps to nowhere, and some that are half done and
three quarters done. It is--and I just see that as a lot of
traffic sitting still, and not doing what the interstate is
supposed to do. So, I would hope you review that very
carefully, and I would appreciate any opportunity to discuss
this in more detail with you at another time.
Mr. Nottingham. Thank you, sir. We look forward to that.
Mr. Murphy. Thank you. Thank you, Mr. Chairman.
Mr. Hall. The Chair recognizes the gentleman from Texas,
Mr. Gonzalez.
Mr. Gonzalez. Thank you very much, Mr. Chairman, and first,
I apologize to the Chairman and members of the committee, and
of course, to the witnesses, because I have missed just about
everything. And we try to do everything in the space of a day
and a half here, and it is rather difficult. But my question
would go to Mr. Holmstead. And I am from San Antonio. I
represent half of San Antonio. We are currently under, I think,
the designation of deferred nonattainment. I don't want to
compare it to anything, but it is kind of a limbo, kind of a
strange situation to be in. And of course, we are 150 miles
from Laredo, right up IH35, and so now I am going to talk about
cross-border trucking, and I don't know how familiar you are
with what is going on there, but of course, there is a mandate
to use low sulfur fuels, and that is for the American trucks.
The problem is with the Mexican trucks coming across the
border. I think there is a 3 week pilot project in Nogales,
Arizona to study this. My concern, and I hope whatever
information we glean from that can be used, but is there
anything anticipated, or what are you all doing regarding other
areas, especially in areas such as San Antonio, which I think
would bear a tremendous amount of that type of traffic? And any
update you may have, and what you know regarding the Nogales
situation.
Mr. Holmstead. I am glad that you asked that question,
because we have been--it is an issue that we have been looking
at very closely, and I must say, working also very closely with
our counterparts in the Mexican side of the border. We believe
that on about the same timeframe, that the low sulfur fuel is
available in the U.S., it will also be made available in
northern Mexico. I understand that there are conversations at
senior levels within the Mexican government, as you know, Pamex
would have to make the kinds of investments to provide that
fuel. But our understanding is that that fuel will be made
available, and that they are also looking at other strategies
for reducing the impacts of border crossings there. You
mentioned the project that we now have going on in Arizona, but
it really will be applicable. We are looking at different
technologies for actually measuring the pollution, strategies
for reducing the idling time for trucks that may be idling at
the border. At this point, based on the analysis that we have
seen, we believe that San Antonio will be able to meet its
obligations to come into attainment, consistent with this what
we call early action compacts. And again, I--and I think all of
us at EPA congratulate the local officials, who have really
seized that issue as a way to take earlier action than they
otherwise would have been required to do, so that they wouldn't
have an air quality problem. And currently, they are on track,
based on everything we see to ensure that they do meet
attainment. At the same time, we are watching the issue of the
cross-border traffic, to make sure that we have a good handle
on that.
Mr. Gonzalez. Is there any timeframe as far as any studies,
anything that is going to be definitive as to what you
discover? I know if it starts March 11, it is 3 weeks. After
you study, I guess the measurement of the particles or whatever
is involved, what are we looking at as far as getting that
information back? Because my local area Council of Governments
is obviously very concerned. NAFTA has been resisted as far as
the cross-border trucking is concerned for many reasons, but
now we find ourselves on the environmental end, which I don't
think people anticipated unless it was staged, and that was
going to be the last hurdle. But what are we looking at as far
as something that is coming from you guys to say that it does
not pose any real problem for cities like San Antonio?
Mr. Holmstead. We--I may have to get back to you with a
specific date. I know that that project does call for a report.
It takes some time to finish the report after the 3 week
testing period, and what I can do is make sure that we provide
you with a date by which we can get that report to you and to
the officials in San Antonio.
Mr. Gonzalez. That would be great. Thank you very much, Mr.
Holmstead, and I don't have any further questions. I yield
back.
Mr. Hall. A lot of times, we save the best for last. And I
recognize Mr. Otter, the gentleman from Idaho.
Mr. Otter. Well, thank you, Mr. Chairman. You can go ahead
and talk as long as you want, if you are going to say things
like that.
Mr. Chairman, I too appreciate calling this hearing. I am
reminded of the great promise when we passed ISTEA and then
TEA-21. I was then Lieutenant Governor of Idaho, and we were
going to not only spend all that money, which we successfully
did, and continue to do, but we were also going to have
tremendous streamlining. That was really, for us in the west,
that are continually frustrated by either the Endangered
Species Act or the EPA, or some other barrier to us being able
to go forward with our projects, but you know, Mr. Nottingham,
the last time we met, we met across the desk like this, only I
was on the Transportation Committee, and as I recall, you were
with the State of Virginia, I believe. How long ago was that?
That was, what, 3 years ago, something like that?
Mr. Nottingham. Three and a half years ago, sir.
Mr. Otter. Yeah. I--and I remember one of the things that
we were working on was streamlining. Well, you know, the bad
news is we haven't accomplished anything. The good news is is
that we are still talking about it. So hopefully we are going
to get something done. But what I am concerned about is at the
time, when you were with the State of Virginia, you were there
with the--then the Governor of New Jersey, who had recently
replaced, then, the Director of the Environmental Protection
Agency. And there was a couple of other folks there who had
legitimate complaints about the inability of the Endangered--or
the Environmental Protection Agency to be able to move forward
with any degree of certainly, or at least consideration of
time. In fact, as I recall, the Governor of New Jersey said
that they had a turnpike that they had been trying to put in
for about 10 years, and still hadn't gotten all the permits,
because of a three-toed frog or some blade of grass or
something. That frustrated their construction of that, yet they
were killing 32 people a year that they figured that they could
stop.
And the reason I remember that is because that is the same
thing that is happening to me in Idaho. I have got one stretch
in Idaho we call Blood Alley, because we kill 32 people a year
up there on that. We have got $58 million sitting in the banks
in Idaho, or at least we did at the time we had--you and I had
our meeting--that were waiting for some bureaucrat somewhere to
make a decision so that we could go forward with our
construction project simply putting shoulders on the road, so
that those cars, if they did run off the road, they at least
had a chance of not wrecking and killing the people inside.
Do you, in your new capacity, do you see any hope for us
being able to move forward? I have voted against every
transportation bill because of the lack of streamlining in the
bill. And I am going to vote against this one, unless we get
some streamlining in it. So--and it doesn't mean much, because
everybody else has got a big Christmas tree in there, and they
are going to vote for it anyway, with or without the
streamlining. Do you see any hope that we are going to be able
to go forward legislatively, and if not, why couldn't we go
forward administratively with some of this streamlining?
Mr. Nottingham. Thank you, Mr. Otter. I will say it is much
easier commenting on the Federal Government from the State
government perspective than it is from being within the Federal
Government, but you raise some very serious and real issues. We
have a strong, and this, today's hearing, touches on one very
important, but fairly discrete sliver of the administration's
overall environmental streamlining package that we have in our
SAFETEA proposal. I will say, sadly, half or more has not made
it into either of the bills that have been moving over the last
couple of years, for a number of reasons, but we really do hear
everywhere we go, across the States, and in MPOs and DOTs, and
in communities, the biggest frustration with transportation is
why does it take so long to deliver solutions? And people are
okay with the reality that, on occasion, the answer may well be
don't build that project, because it is not the right project
at the right place, for environmental and other reasons. People
can accept that, but they don't like to wait 10 years----
Mr. Otter. Yeah.
Mr. Nottingham. [continuing] to hear that, and all the
money. So, we have a number of proposals, whether it is dealing
with the National Environmental Policy Act, the Section 4(f),
where occasionally we see the fact that a very minor, de
minimis impact on a resource, a park, or a Federal land may
trump all other environmental considerations, even if we can
figure out a win-win----
Mr. Otter. Yeah.
Mr. Nottingham. [continuing] in other ways.
Mr. Otter. Pardon me for interrupting you, but I got one
more question, and I want to get into Mr. Holmstead before my
time runs out. I thank you for your answer. Mr. Holmstead, if
it had been a U.S. trucking company that was in violation of
the clean air standard, you would have shut them down. Why
can't we shut down the Mexican trucks coming into the United
States?
Mr. Holmstead. Well, the----
Mr. Otter. Wouldn't you have shut them down?
Mr. Holmstead. The answer is that the Mexican trucks who
come to the country are not in violation of any standards.
Mr. Otter. That isn't what Mr. Gonzales indicated.
Mr. Holmstead. No. He suggested there was some concern
about the emissions coming across the border, but that doesn't
mean that they are violating any standards. GPA does not
regulate vehicles that are produced and purchased and domiciled
in another country. We are working with the Mexican government
to harmonize their standards with ours, and we believe that
they will do that, even though it may take a few years behind
our schedule. But they are not in violation of any standards.
Mr. Otter. I thank you, Mr. Chairman. I see my time is up.
Mr. Hall. All right. I thank you, and I thank this panel
very much. We will release you gentlemen now, and ask the
second panel to come forward, if they would. And we thank you
very, very much.
Okay. We are honored to have the second panel before us
today, and we have Mr. Michael Clifford, who is the Director of
Systems Planning Applications, Department of Transportation
Planning, also a member of the Transportation Research Board
and the Institute of Transportation Engineers. We are very
pleased to have him.
We have Ms. Annette Liebe, who is Manager of the Oregon
Department of Environmental Quality's Air Quality Planning
section, and a former staff attorney at the Environmental
Defense, Inc. fund.
We also have Mr. Michael Replogle, Transportation Director
for Environmental Defense, author of many, many publications in
transportation policy and planning, and several books, and we
are honored to have him.
We have Brian Holmes, who is Executive Director of the
Maryland Highway Contractors Association. He is an incorporator
of the National Wetlands Coalition, Chairman of the Nationwide
Public Projects Coalition.
And we are honored to have you, and we recognize, at this
time, Mr. Clifford, for 5 minutes. You have been patiently here
most of the day, and you know the rules. Take as much time as
you really have to have. Be as brief as you feel like you ought
to be. Thank you.
Mr. Clifford. Thank you very much, sir.
I would like to submit my written testimony for the record.
Mr. Hall. And without objection, you all may do that.
STATEMENTS OF MICHAEL CLIFFORD, DIRECTOR, SYSTEMS PLANNING
APPLICATIONS, METROPOLITAN WASHINGTON COUNCIL OF GOVERNMENTS,
ON BEHALF OF THE ASSOCIATION OF METROPOLITAN PLANNING
ORGANIZATIONS; ANNETTE LIEBE, MANAGER, AIR QUALITY, OREGON
DEPARTMENT OF ENVIRONMENTAL QUALITY, AIR QUALITY DIVISION, ON
BEHALF OF STATE AND TERRITORIAL AIR POLLUTION PROGRAM
ADMINISTRATORS AND ASSOCIATION OF LOCAL AIR POLLUTION CONTROL
OFFICIALS; MICHAEL REPLOGLE, TRANSPORTATION DIRECTOR,
ENVIRONMENTAL DEFENSE; AND BRIAN HOLMES, EXECUTIVE DIRECTOR,
MARYLAND HIGHWAY CONTRACTORS ASSOCIATION, ON BEHALF OF AMERICAN
ROAD AND TRANSPORTATION BUILDERS ASSOCIATION
Mr. Clifford. Thanks. Good afternoon, Mr. Chairman and
members of the subcommittee. I am Michael Clifford, Director of
Systems Planning Applications for the National Capitol Region
Transportation Planning Board. This Board is the metropolitan
planning organization, or MPO, for the Washington, DC region. I
am testifying today on behalf of the Association of
Metropolitan Planning Organizations, AMPO, and in particular,
as a member of AMPO's Air Quality workgroup.
AMPO is a national association of MPOs, with membership
from 200 metropolitan areas across the country, in air quality
nonattainment and maintenance areas, MPOs have primary
responsibility for ensuring that transportation plans and
programs do their fair share to achieve and maintain the
Federal air quality standards to protect the health of our
citizens. Accordingly, we are pleased to have this opportunity
to provide our perspective regarding the conformity provisions
contained in H.R. 3, and I thank you for holding this hearing.
I would like to begin by saying that we support the changes
to the transportation conformity program, as proposed in
Section 1824 of the bill. The changes would allow MPOs to
better utilize resources, and therefore, to better conduct
metropolitan planning, while continuing to work with air
management agencies to improve air quality in these
metropolitan areas.
First, AMPO supports the proposal that conformity of
transportation plans and programs be determined every 4 years.
Because conformity must be determined before new programs or
new plans are adopted, many areas, including here in the
Washington, DC region, begin an update at about the same time
as conformity requirements are met for the previous one. It is
basically a year round, continuous conformity process.
Second, AMPO supports the proposed change to provide a 2
year timeframe for redetermining conformity once triggered by a
State implementation plan, or a SIP. This represents an
additional 6 months beyond the current 18 months requirement,
thus allowing more time for MPOs to integrate conformity
determinations with the proposed 4 year frequency cycle.
Third, AMPO applauds the provisions in H.R. 3 that would
change the time horizons for conformity determinations, so that
air quality and transportation planning timeframes are more
similar. Under the current requirements, conformity must be
demonstrated for the last year of the transportation plan,
which is at least 20 years from the date of analysis. In
contrast, SIPs are focused on a shorter term attainment date,
and do not have to forecast the emissions and trends to any
time beyond that point. The provisions in H.R. 3 would tie
these two planning horizons much more closely together.
Fourth, I would like to emphasize AMPO's support for the
transportation control measure, or TCM, substitution provisions
in the bill. This would allow MPOs working with air quality
agencies and EPA to revise or substitute new TCMs without a
formal SIP revision.
Last, I wish to express my support for the language that
provides a formal definition of a conformity lapse. AMPO
prefers this statutory definition, as it removes ambiguity that
might lead to uneven application across the country.
In conclusion, I believe these conformity provisions would
more closely align the air quality and transportation planning
processes, resulting in better transportation planning, fewer
delays, and continued progress toward meeting our clean air
goals.
Thank you for your time, and the opportunity to speak
before this subcommittee.
[The prepared statement of Michael Clifford follows:]
Prepared Statement of Michael Clifford, Director, Systems Planning
Applications, National Capital Region Transportation Planning Board,
Metropolitan Washington Council of Governments on Behalf of the
Association of Metropolitan Planning Organizations
Good afternoon, Mr. Chairman and members of the Subcommittee. I am
Michael Clifford, Director of Systems Planning Applications for the
National Capital Region Transportation Planning Board, the Metropolitan
Planning Organization (MPO) for the Washington, DC region. I am
testifying today on behalf of the Association of Metropolitan Planning
Organizations (AMPO), of which my MPO is an active member, and in
particular as a member of AMPO's Air Quality Work Group.
AMPO is a national association of MPOs with membership from 200
metropolitan areas in the country. In nonattainment and maintenance
areas, MPOs have primary responsibility for ensuring that
transportation plans and programs do their fair share to achieve and
maintain the federal air quality standards and protect the health of
our citizens.
Accordingly, we are pleased to have this opportunity to provide our
perspective regarding the conformity provisions contained in H.R. 3,
and I thank you and the members of the Subcommittee for holding this
hearing.
I would like to begin by saying that we support the changes to the
transportation conformity program in the Clean Air Act as proposed in
Section 1824 of H.R. 3. The changes would allow MPOs to better utilize
resources and, therefore, to better conduct metropolitan planning,
while continuing to work with air quality agencies to improve air
quality in the nation's metropolitan areas.
First, AMPO wholeheartedly supports the proposal that conformity of
transportation plans and programs be determined every 4 years in
nonattainment and maintenance areas. Currently, MPOs in nonattainment
and maintenance areas must demonstrate conformity of plans every three
years and transportation improvement programs (TIPs) every two years.
Because conformity must be determined before new TIPs or new plans
are adopted, many areas, including here in the Washington, DC region,
begin a TIP update at about the same time as conformity requirements
are met for the previous one. When you also consider that a conformity
determination is often triggered by a TIP or Plan amendment, or a state
implementation plan (SIP) trigger, the reality is that a continuous
conformity process is in place in many metro areas. Many MPOs,
especially high-growth areas like this region, report to AMPO that they
budget for at least one conformity determination per year.
For example, the North Central Texas Council of Governments
(NCTCOG) in the Dallas-Fort Worth area performs one conformity analysis
per year because of TxDOT's transportation plan and TIP modifications.
The Southeastern Wisconsin Regional Planning Commission (SWRPC) in the
Milwaukee area performed four conformity determinations in the 2003-
3004 timeframe.
What can be expected to improve by this change to a four-year
frequency schedule is the ability of planners to focus on issues just
as important to metropolitan areas as air quality. It is not simply
technical staff time that is required for a conformity determination.
Conformity also requires numerous interagency consultation meetings,
public hearings, and the full engagement of MPO board members. MPOs
must choose where to focus their limited planning resources, and
elected MPO board members must choose where to focus their available
time.
AMPO members believe that long- and short-term transportation
planning will improve if metropolitan areas have more time to devote to
it, rather than continuously determining conformity as many now do. A
strengthened planning process could evolve when the concern about
short-term deadlines for conformity is lessened.
This has been borne out at AMPO meetings, where MPOs in areas
without conformity requirements and areas where conformity is not a
frequent activity report that they are freer, from a resource
perspective, to undertake activities such as scenario planning,
enhanced public participation, and other innovative measures, than are
MPOs conducting conformity every year.
The changes proposed in H.R. 3 will not negatively affect local air
quality, because conformity must still be determined before an updated
plan or TIP is adopted; air quality impacts will still be analyzed
before any major changes to the transportation network are made, and a
new SIP motor vehicle emissions budget would still trigger a conformity
determination.
Secondly, AMPO supports the proposed change to provide a two year
timeframe for redetermining conformity after an adequacy finding or
approval of a motor vehicle emissions budget in a state implementation
plan. This represents an additional six months beyond the current 18
month requirement, thus allowing more time for MPOs to integrate
conformity determinations with the proposed four year frequency cycle I
just addressed.
SIP updates occur on a discretionary basis, rather than on a
regular cycle as do transportation plans and TIPs. Because of that,
conformity triggers are unpredictable. The current 18-month SIP trigger
requirement has caused uncertainty in the transportation planning and
TIP development processes. The additional six months in your bill would
improve the process by removing some of the pressure to demonstrate
conformity in a short amount of time. It would also provide a measure
of certainty in the period after SIPs are due for the new 8-hour ozone
and fine particulate standards, which will begin in 2007. These SIPs
will establish the first motor vehicle emissions budgets under those
new standards.
Third, AMPO applauds the provisions in H.R. 3 that would change the
time horizons for conformity determinations so that air quality and
transportation planning timeframes are more similar. Under the current
requirements, conformity must be demonstrated for the last year of the
transportation plan, which is at least 20 years from the date of
analysis. In contrast, SIPs are focused on a shorter-term attainment
date and do not have to forecast emissions and trends to any time
beyond that point.
For many 8-hour ozone nonattainment areas, for example, the
attainment year, and thus the last year of analysis in the SIP, will be
2010. After an area reaches attainment, a maintenance plan must be
developed and put in place that looks forward for a period of just 10
years. In contrast, conformity determinations being done today forecast
transportation-related emissions until at least 2025.
Because transportation agencies need to demonstrate conformity at
least 20 years out to the last year of the plan, transportation sources
are constrained to the SIP's motor vehicle emissions budget from the
attainment year to the last year of the transportation plan, unless the
SIP specifically establishes emissions budgets for years after the
attainment date. In practice, few SIPs do this.
The mismatch in the timeframes for transportation and air quality
plans has placed a burden on the transportation sector where there are
very few emission controls remaining for implementation that will yield
notable emissions reductions. This is especially true as vehicles
continue to get cleaner due to the phase-in of federal emission and
fuel standards. In 20 years, each mile of travel from a given vehicle
will be cleaner, but this also means that each mile of travel reduced
will result in a much smaller emission benefit. Longer-term emission
problems will require solutions from every emission sector, and the way
to ensure they are all looked at is to harmonize the planning
timeframes so that all sources of emissions are on the table, not just
the transportation sector.
The provisions in H.R. 3 would tie these two planning horizons much
more closely together. The conformity determination would look forward
at least 10 years from the first year of the TIP or plan timeframe, and
even further if a regionally significant project will not be completed
until after that time. These provisions would still ensure that
transportation investments do not cause or contribute to air quality
violations. And because the proposal calls for conducting a regional
emissions analysis for any years of the transportation plan that extend
beyond this timeframe, planners will have advance notice if future
transportation demand results in emissions that are likely to worsen
air quality.
Fourth, I would like to emphasize AMPO's support for the
transportation control measure (TCM) substitution provisions in the
bill. The conformity regulations require that MPOs implement in a
timely manner any TCMs identified in the SIP. If a particular TCM fails
to advance on schedule or perform as intended, revising, adding, or
substituting a new TCM currently requires a formal SIP revision, with
its attendant time requirements of development and EPA approval. This
time period would typically be a minimum of 12 months.
AMPO supports the language in the Bill that would allow MPOs,
working with air quality agencies and EPA, to revise or substitute new
TCMs with equivalent emission reductions, and timeframes for those
reductions, without a formal SIP revision.
Our desire for this change stems from the fact that transportation
agencies are extremely reluctant to use TCMs now. This is because the
success of many TCMs is dependent upon changes in human behavior and
other variables beyond the MPO's influence; for other TCMs, funding
that allows timely implementation may fail to materialize. If the
emission reductions fail to accrue as predicted, the MPO is liable.
For example, the Metropolitan Transportation Commission (MTC) in
the San Francisco Bay Area was sued in 2001 for a TCM that was included
in its 1982 SIP, but not amended or revised to reflect current
conditions. The court held that, even though MTC was not taking
emission credit for the TCM, it is obligated to implement the measure
regardless of changed circumstances. The suit was eventually concluded
more in favor of MTC, but the resultant delays impeded both the
transportation planning and air quality planning processes. Other MPOs
are understandably reluctant to agree to TCMs for this very reason.
The Bill would provide for a more efficient and timely TCM
substitution process, which would provide MPOs with more assurances
that TCMs are a viable emission reduction strategy to use in the SIP.
Lastly, I wish to express my support for the language that provides
a formal definition of a conformity lapse. AMPO prefers this statutory
definition as it removes ambiguity that might leave discretion to EPA
or the courts, and uneven application across the country.
In conclusion, I believe these conformity provisions would more
closely align the air quality and transportation planning processes,
resulting in better transportation planning, fewer delays, and
continued progress toward meeting our clean air goals.
Thank you for your time and the opportunity to speak before this
Subcommittee.
Mr. Otter [presiding]. Thank you, Mr. Clifford. Ms. Liebe.
STATEMENT OF ANNETTE LIEBE
Ms. Liebe. Good afternoon, Mr. Chairman, and members of the
subcommittee. My name is Annette Liebe, and I am manager of the
Air Quality Planning section for the Oregon Department of
Environmental Quality. I am here today testifying on behalf of
STAPPA and ALAPCO, the two national associations of air quality
officials in 53 States and territories, and over 165 major
metropolitan areas.
We are here today because transportation remains a dominant
source of air pollution across the Nation. These emissions
contribute to premature mortality, reduced lung function,
cancer, and other serious health and environmental problems.
Although we continue to make great progress in reducing
emissions from mobile sources, it is clear that benefits from
cleaner cars and trucks cannot keep pace with trends of
steadily increasing vehicle miles traveled.
Our associations are acutely aware of the key role that
transportation plays in our Nation's economy. We also believe
that transportation conformity and the congestion mitigation
air quality improvement programs are critically important to
the goal of achieving full integration of environmental and
transportation decisionmaking. For this reason, our
associations have adopted a set of CMAC and transportation
conformity principles for the reauthorization of transportation
legislation. A copy of our principles is attached to our
written statement.
With respect to transportation conformity, our associations
strongly believe that the purpose of the program, which is to
ensure that the emissions from transportation plans, programs,
and projects stay within the capacity of an airshed, is
absolutely crucial to achieving clean air goals. Unless this
purpose is achieved, it will be necessary to call upon other
source sectors, potentially including small businesses, to
further reduce emissions.
We believe conformity is working well, and endorse
preserving the major conformity requirements and schedules that
are now in place. Accordingly, we are troubled that the
proposed changes to transportation conformity in recent Senate
and House legislation, including H.R. 3, could seriously impair
the ability of States and localities to protect public health
and welfare. We believe, however, that the air quality
provisions of the House bill are preferable to those in the
Senate. We are most concerned with proposals to shorten the
planning horizon for the transportation plan from 20 years to
10 years. In planning for clean air under the Clean Air Act, we
must not only chart a course for achieving healthful air
quality, but also for maintaining it over the long-term, 20
years into the future once we meet the standards. Major
transportation investments can have huge air quality impacts,
much of which may not occur for several decades. These
investments can also significantly promote sprawl and growth.
Therefore, long term planning over at least a 20-year period,
is necessary to ensuring that air quality impacts are
identified and appropriate adjustments are made early.
While both the Senate and House legislation seek to shorten
the time period, we prefer the language in H.R. 3, since it
would require concurrence by the air pollution agency before
the time period is reduced, as well as an emissions analysis to
track air quality impacts. We believe that as it is currently
structured, conformity provides ample flexibility to States to
accommodate individual needs and circumstances, while
maintaining the integrity of the program. Rather than statutory
changes, we believe that State and local officials should
retain the flexibility to work through a robust interagency
consultation process to resolve issues addressing their unique
circumstances.
We strongly support the congestion mitigation air quality
improvement program, and believe that it also can be
strengthened in several ways. Since CMAC was originally
established, our understanding of transportation-related
emissions and their impact on public health and welfare have
expanded significantly. EPA has adopted new health-based
standards for fine particulate matter and ozone, and we are
beginning to develop air quality plans to meet these standards.
Accordingly, we urge that the areas eligible to receive CMAC
funding be expanded, consistent with the recommendations
included in our written testimony.
For example, areas like Portland, Oregon, that are close to
violating the standards, should be eligible to receive CMAC
funds in order to avoid becoming a nonattainment area. We also
support a substantially increased Federal commitment of
resources to the CMAC program to reflect the true and very
significant impact of transportation-related emissions on
public health and welfare. This increase should be no less
proportionately than that to be provided for highway
investments.
Finally, we recommend that concurrence of State and local
air quality agencies be required for CMAC project selection
through a well-defined consultation process. In Oregon, the
Department of Environmental Quality has participated in
selecting CMAC projects through the ongoing interagency
consultation process that we established under our conformity
rule.
Thank you for the opportunity to testify, and I am
available to answer any questions.
[The prepared statement of Annette Liebe follows:]
Prepared Statement of Annette Liebe, Manager, Air Quality Planning,
Oregon Department of Environmental Quality on Behalf of the State and
Territorial Air Pollution Program Administrators and the Association of
Local Air Pollution Control Officials
Good afternoon, Mr. Chairman and members of the Subcommittee. I am
Annette Liebe, Manager of the Air Quality Planning Section of the
Oregon Department of Environmental Quality. I am testifying today on
behalf of STAPPA--the State and Territorial Air Pollution Program
Administrators--and ALAPCO--the Association of Local Air Pollution
Control Officials--the two national associations of air quality
officials in 53 states and territories and over 165 major metropolitan
areas. The members of STAPPA and ALAPCO have primary responsibility
under the Clean Air Act for implementing our nation's air pollution
control laws and regulations and, moreover, for achieving and
sustaining clean, healthful air for our citizens. Accordingly, we are
pleased to have this opportunity to provide our perspectives on (1) the
proposed changes to the Clean Air Act's transportation conformity
provisions contained in H.R. 3, the ``Transportation Equity Act: A
Legacy for Users,'' and (2) the Congestion Mitigation and Air Quality
Improvement (CMAQ) program under this legislation.
STAPPA and ALAPCO are acutely aware of the key role that
transportation plays in our nation's economy. We endorse the
fundamental principle that transportation and environmental goals need
not be at odds with one another, but, rather, that our transportation
system can flourish and our economy can grow without jeopardizing the
health of our citizens and the environment. In fact, our transportation
choices can make important contributions to health and environmental
improvements.
Today, however, transportation remains a dominant source of air
pollution across the country, contributing substantially to unhealthful
levels of ozone, particulate matter (PM) and carbon monoxide (CO). In
particular, according to the U.S. Environmental Protection Agency
(EPA), these sources are responsible for over 40 percent of volatile
organic compounds and more than 50 percent of nitrogen oxides--both of
which are ozone precursors--and about a third of fine particulate
matter emissions and 70 percent of CO emissions. Transportation sources
are also very significant contributors of greenhouse gases--including
over a third of carbon dioxide emissions--and toxic air pollutants, and
play a role in the formation of regional haze. Although EPA's standards
for light-duty and heavy-duty vehicles will contribute to making great
progress in reducing emissions from mobile sources, it is clear that
the benefits of these technological advances can not keep pace with
current and foreseeable trends of steadily increasing vehicle miles
traveled (VMT).
New research linking vehicle emissions to serious and adverse
health effects on children and other sensitive populations further
supports the need for effective transportation conformity and CMAQ
programs. This research shows that:
1) children attending schools located adjacent to freeways suffer an
increased prevalence of asthma and bronchitis;
2) children exposed to higher levels of motor vehicle-related
pollutants experience a permanent, life-long reduction in lung
function compared to children living in cleaner air; and
3) children who die of cancer before age 16 were far more likely to
have been exposed to vehicle pollution as a fetus because the
mother resided within 1 kilometer of a highway during and after
pregnancy.
STAPPA and ALAPCO firmly believe that the transportation conformity
and CMAQ programs are critically important to achieving full
integration of our environmental and transportation decision-making
processes and ensuring that transportation choices do not undermine our
efforts to sustain clean, healthful air throughout the country. Air
pollution control is a zero-sum calculation. To the extent we are not
able to achieve the appropriate cost-effective emissions reductions
from transportation sources, we will have to resort to more costly
alternative control measures from some other industrial sources,
including small businesses.
Our associations have adopted a set of transportation conformity
and CMAQ principles for the reauthorization of transportation
legislation and prepared a comparison of the air quality provisions of
proposed House and Senate legislation from last Congress. Both are
attached to this testimony.
Transportation Conformity
STAPPA and ALAPCO remain firmly committed to the purpose of
transportation conformity, which is to ensure that shorter-term
Transportation Improvement Programs (TIPs) and long-term Regional
Transportation Plans (RTPs) contribute to the timely attainment and
maintenance of healthful air quality and achieve the motor vehicle
emissions budgets contained in State Implementation Plans (SIP) for air
quality. We believe that conformity can continue to be implemented as
currently written and intended.
In numerous areas, the conformity process has facilitated good
working relationships between state and local air quality and
transportation officials by requiring consultation and coordination
among agencies. The process has made air quality and transportation
planners more aware of each others' objectives; resulted in the
inclusion in TIPs and RTPs of additional projects that benefit air
quality; and opened up the SIP development process to more input from
the transportation community. Clearly, this has been the case in
Oregon. STAPPA and ALAPCO believe that we must continue to strive for
such successes across the country. Moreover, our associations strongly
believe that the purpose of conformity--to ensure that transportation
plans and programs support healthful air quality--is fundamental to the
goal of achieving clean air, especially given the continued increase in
motor vehicle use and transportation's contribution to poor air quality
in many areas throughout the country.
STAPPA and ALAPCO believe that the Clean Air Act's transportation
conformity program is working and strongly endorse preserving the major
requirements and schedules that are now in place. However, we are
troubled that proposed changes to transportation conformity in recent
Senate and House legislation, including H.R. 3, could seriously weaken
the program and undermine the ability of states and localities to
attain and maintain national ambient air quality standards. We believe,
however, the most problematic provisions are included in the Senate
bill, and strongly urge the House to reject them. Our major concerns
with the proposed bills follow.
First, our associations are extremely concerned that both Senate
and House proposals seek to shorten the period of emissions analysis
used to determine whether a long-range plan conforms to the SIP. Under
each proposal, the plan's conformity determination would be based on a
10-year horizon, rather than the current 20-year horizon. We strongly
oppose such a change, but believe the House provision is less
problematic to the conformity program than the Senate proposal.
Long-term planning, over a 20-year horizon, is imperative to
ensuring that the potential growth in mobile source emissions is
identified, the impact on air quality is assessed and, where necessary,
adjustments are made. In planning for clean air, state and local air
agencies must not only chart a course for achieving healthful air
quality, but also for maintaining it over the long term. Shortening the
timeframe over which a transportation plan is required to demonstrate
conformity is extremely troubling to us because it takes only the first
part of our responsibility--attaining an air quality standard--into
account, and disregards our responsibility for maintaining clean air
over the subsequent 20 years.
Major transportation projects can have huge air quality impacts,
much of which may not occur during the first ten years when the new
highway has not yet been filled to capacity. The greatest emissions
impact of a new highway often occurs after the first ten years when the
resulting development corridor is fully developed and the facility is
again jammed with stop-and-go traffic. If we eliminate the
responsibility to account for the impact of transportation investments
beyond 10 years, then we lose the opportunity to hold these projects
accountable for their long-term contribution to air pollution, and
severely compromise our ability to adequately protect public health.
Accordingly, STAPPA and ALAPCO strongly oppose the Senate
provisions mandating a shorter planning horizon of 10 years, with no
flexibility to account for local needs. While we are also disappointed
that the House bill allows the conformity decision to be based on 10
years, we still find it preferable, since it does not mandate a shorter
planning horizon, but instead allows conformity to be based on
emissions during the first ten years only with the agreement of the air
pollution control agency. We also support the provision in the House
bill requiring an emissions analysis for the additional years in the
transportation plan even if the emissions in the out-years are not used
for conformity purposes. This will alert the transportation and air
quality planners to possible future air quality problems and provide an
opportunity to address them during the period of the next update of a
transportation plan before the future conformity violations cause a
conformity lapse.
Second, STAPPA and ALAPCO are also concerned with proposals
reducing the frequency of conformity determinations for transportation
plans from every three years to every four years, and eliminating the
requirement for conformity determinations on the TIP, currently
conducted every two years. Our associations oppose these changes, but
believe they will have much less impact on the conformity process if
the House language regarding long-term emissions analyses is adopted.
Third, we believe that regular and timely analyses must be
maintained to demonstrate compliance of financially constrained TIPs
and RTPs with SIP motor vehicle emission budgets. Such continued
frequency will ensure that sound data are generated and allow for the
timely adjustment of motor vehicle emissions estimates. The longer the
delay between emissions estimates, the longer emissions can grow in
excess of the emissions budgets planned for in the SIP to attain and
maintain the standards. If a violation of SIP budgets grows too large
before it is discovered, it not only will prevent attainment of the
health-based air quality standards, but may also become too difficult
to correct through the transportation process within a reasonable
period of time. This may result in emission increases that cannot be
offset by transportation control strategies in time to meet the
statutory deadlines for reasonable progress or attainment of the
health-based standards. In those situations, the failure of conformity
will likely force additional emissions reductions from stationary
sources to achieve the overall reductions required for attainment.
In recognition of the desire of transportation officials to improve
the alignment of conformity timelines, STAPPA and ALAPCO recommend that
the frequency of the conformity analysis on the TIP and the RTP be
synchronized. The House bill requires synchronized determinations. The
Senate bill does not.
Fourth, we are concerned with provisions of the Senate and House
bills allowing projects to be funded during a conformity lapse. The
current conformity program does not restrict project funding during a
lapse for projects that reduce emissions or do not increase emissions.
Both the Senate and House bills expand these exemptions considerably.
The Senate bill allows all but the largest ``regionally significant
projects'' to continue to be funded for an indefinite period during a
conformity lapse, and does not require that emissions be reduced to
comply with the SIP. The House bill allows all projects, including
``regionally significant projects,'' to continue to be funded during a
conformity lapse, but limits the time period when projects may be
funded to 12 months, and requires transportation agencies to revise
their plans and take corrective actions to conform to the SIP budgets.
STAPPA and ALAPCO oppose expanding the current list of exemptions
to include projects that increase emissions. We believe this will
exacerbate the exceedance of SIP emissions budgets and make corrective
action more difficult and expensive. However, of the two proposals, we
prefer the provision in H.R. 3, since it limits the time period and
requires corrective actions.
Fifth, STAPPA and ALAPCO strongly oppose the provision in the
Senate bill that eliminates emissions budgets in currently approved
ozone SIPs until new plans for the 8-hour ozone standard are submitted.
EPA has already rejected this concept, concluding that if the current
SIP budgets were set aside--as the Senate bill allows--ozone-forming
emissions from motor vehicles in major metropolitan areas could
increase significantly. According to EPA in its latest conformity
rulemaking (69 Fed Reg, pp 40026-27, July 1, 2004), vehicle emissions:
could increase anywhere from 10 to 50% of the 1-hour budgets,
and because motor vehicles represent a quarter to a half of all
emissions in most metropolitan areas, the total emissions in an
airshed could increase to the point where areas cannot attain
the 8-hour standard.
We are concerned that this provision could seriously impair the
ability of states and localities to attain and maintain the 8-hour
ozone standard. Consequently, we support the House on this issue and
strongly recommend that you reject the Senate language.
Finally, we are concerned that the Senate and House bills contain
language that conflicts with the Clean Air Act by potentially allowing
non-conforming projects in PM<INF>10</INF> and PM<INF>2.5</INF>
nonattainment areas to be included in the TIP. The Clean Air Act
requires that no project cause or contribute to a violation of national
ambient air quality standards. The Act also requires that projects come
from transportation plans and improvement programs that do not cause
violations of the NAAQS. But the language in both bills would allow a
transportation improvement program (TIP) to be approved even if it
includes projects that cause violations of the PM<INF>10</INF> and
PM<INF>2.5</INF> standards. It appears that this language has simply
been carried forward from the 1998 law without addressing the conflict
with the Clean Air Act. To avoid confusion and possibly conflicting
interpretations of the provisions with the Clean Air Act, the language
needs to be removed from the bills.
As we mentioned, our associations believe transportation conformity
is working. We believe it is well worth the effort it requires, given
the benefits that will follow in terms of public health and
implementation of smart-growth policies. In addition, we believe that
conformity as it is currently structured provides ample flexibility to
states and localities to accommodate individual needs and
circumstances, while maintaining the integrity of the program. Rather
than statutory changes to such elements as planning horizons, analysis
frequency and grace periods, STAPPA and ALAPCO believe that state and
local officials should retain the flexibility to resolve issues in the
way that works best at the state and local level. This may involve
revising the emissions budget in a SIP in one area, adding
transportation control measures to a TIP in another area or extending
the air quality planning horizon in yet another area. In each case, the
state and local officials can develop the best solutions for their
jurisdictions through a strengthened interagency consultation process.
Congestion Mitigation and Air Quality Improvement (CMAQ) Program
STAPPA and ALAPCO strongly support the CMAQ program, which provides
a discrete source of funding set aside for transportation projects that
meet air quality objectives and for projects that result in sustainable
air quality improvement. The CMAQ program appropriately reinforces the
interrelationship between the transportation and air quality planning
processes by specifically recognizing and funding projects designed to
reduce the transportation sector's impact on air quality. Over the past
10 years, states and localities have demonstrated that CMAQ can play a
significant role in addressing transportation-related air quality
problems. We believe, however, that this important program can be
strengthened in several ways.
First, since CMAQ was originally established, understanding of the
scope and magnitude of transportation-related emissions and their
impact on air quality has expanded significantly. EPA has adopted new,
health-based National Ambient Air Quality Standards (NAAQS) for fine
particulate matter and 8-hour ozone, and states are now beginning to
prepare State Implementation Plans to demonstrate attainment of these
standards. A National-Scale Air Toxics Assessment concluded that motor
vehicles are the largest source of hazardous air pollutants nationwide,
producing nearly 1.4 million tons of air toxics each year.
While STAPPA and ALAPCO believe CMAQ funds should be apportioned
based on the severity of an area's air quality problem, we urge that
the areas eligible to receive CMAQ funding be expanded from 1-hour
ozone, PM<INF>10</INF> and CO nonattainment and maintenance areas, to
also include PM<INF>2.5</INF> and 8-hour ozone nonattainment and
maintenance areas; areas nearing nonattainment; areas whose
transportation-related emissions have an impact on a nonattainment
area; and areas that experience other air quality problems as a result
of transportation-related emissions, including, but not limited to,
hazardous air pollutants from mobile sources.
Accordingly, we believe that the historic allocation of CMAQ funds
is inadequate. We strongly urge a substantially increased federal
commitment of resources to the CMAQ program, to reflect the true and
very significant impact of transportation-related emissions on air
quality. This increase should be no less, proportionately, than that to
be provided for other highway investments.
In Oregon, CMAQ funds have been used to implement transportation
control measure commitments in numerous maintenance plans. Some
examples include expansion of transit service and programs, support of
transit-oriented development, implementation of commuter trip-reduction
programs, expansion of bicycle and pedestrian facilities and the
purchase of advanced equipment to remove winter road sand that could
contribute to PM<INF>10</INF>. In order to meet the challenges of
implementing new standards to protect public health, we believe funding
should increase for these types of projects and be available for areas
committed to making progress to maintain healthful air.
With respect to project eligibility, we urge that greater emphasis
be placed on projects that will result in direct, timely and sustained
air quality benefits. Certain types of congestion mitigation projects,
such as road and bridge construction and expansion, may have the long-
term effect of promoting growth in VMT and urban sprawl, and of
creating new congested corridors. We also recommend that to qualify for
CMAQ funds, a project should be required to demonstrate that a minimum
air quality benefit threshold is met or exceeded, based on established
criteria and supporting data, and with the concurrence of the
appropriate state and/or local air quality agency. This concurrence
should occur through a well-defined consultation and concurrence
process. In Oregon, the Department of Environmental Quality has
participated in selecting CMAQ projects through the ongoing interagency
consultation process that we established under our conformity rules.
Conclusion
In its policy on transportation and air quality, the National
Governors' Association states:
With the enactment of the Clean Air Act Amendments of 1990,
the Intermodal Surface Transportation Efficiency Act of 1991,
and the Transportation Equity Act for the 21st Century,
Congress took steps to advance two essential national goals:
achieving air quality standards and providing for the
transportation needs of the American people. The Governors
strongly support the attainment of both of these goals and
believe that neither should be sacrificed in pursuit of the
other.
STAPPA and ALAPCO embrace this perspective, as well. We look
forward to working with members of this Subcommittee as discussions
regarding transportation conformity and CMAQ continue.
Thank you for this opportunity to testify.
______
Comparison of Air Quality Provisions of S. 1072, the Safe, Accountable,
Flexible and Efficient Transportation Equity Act of 2004 (February 26,
2004)
and
H.R. 3550, the Transportation Equity Act: A Legacy for Users (April 2,
2004)
Prepared by the State and Territorial Air Pollution Program
Administrators and the Association of Local Air Pollution Control
Officials
May 10, 2004
Earlier this year, the U.S. Senate and the U.S. House of
Representatives passed comprehensive transportation legislation,
including authorization, for six years, of funds for federal
transportation programs. Both bills--S. 1072, the Safe, Accountable,
Flexible and Efficient Transportation Equity Act of 2004, and H.R.
3550, the Transportation Equity Act: A Legacy for Users--include
provisions that will amend the Clean Air Act as well as transportation
law. In particular, the bills substantially change current law and/or
requirements for transportation conformity, the Congestion Mitigation
and Air Quality Improvement (CMAQ) program and other programs with air
quality impacts.
Below is a comparison of key air-related provisions of the Senate
and House bills. For each issue noted, STAPPA and ALAPCO have
identified their preference between the two bills.
Transportation Conformity
Over the past decade or so since it has been implemented under the
Clean Air Act (CAA), transportation conformity has proven to be a key
tool for ensuring that our transportation choices contribute to--rather
than undermine--progress toward achievement of healthful air quality.
Further, as our nation prepares to implement new, health-based National
Ambient Air Quality Standards (NAAQS) for 8-hour ozone and fine
particulate matter (PM<INF>2.5</INF>), the critical need to continue
implementing conformity as it is currently structured is clear.
Both the Senate and House bills contain provisions that would
severely weaken transportation conformity. Though the conformity
provisions of the two bills differ, both would substantially reduce the
transportation sector's accountability for the pollution it creates,
threatening the failure of state and local air pollution clean-up plans
and unfairly forcing states and localities to respond by placing a
greater pollution clean-up burden on other sectors of the economy.
Because transportation emissions account for half of all ozone
precursors and a large portion of PM<INF>2.5</INF> in most metropolitan
areas, reducing the accountability of the transportation sector will
seriously jeopardize the ability of states and localities to achieve
and sustain clean air and public health goals. Given these significant
adverse impacts, STAPPA and ALAPCO would strongly prefer that the final
transportation bill that emerges from Congress not include any changes
to the transportation conformity program and, instead, preserve the
conformity program requirements and schedules currently in place. For
this reason, the associations generally prefer the House bill, which
shows greater restraint in relaxing the conformity program.
Conformity Horizon for Transportation Plans
Senate--S. 1072, sec. 1615(b)(4) (pp. 272-273), reduces from 20
years the planning horizon over which conformity must be demonstrated
by defining a transportation plan as limited to the longer of 1) the
first 10 years of the transportation plan adopted pursuant to 23 USC
134(g), 2) the latest date for which the State Implementation Plan
(SIP) establishes an emissions budget or 3) the year after the
completion date of a regionally significant project that requires
approval before the ``subsequent conformity determination.''
House--H.R. 3550, sec. 1824(c) (pp. 374-376), continues to require
that conformity be demonstrated through the last year of the
transportation plan (i.e., for 20 years) except in areas where the
metropolitan planning organization (MPO) and air pollution control
agency agree to reduce the horizon. In such cases, the bill does not
shorten the planning horizon by defining the term of the transportation
plan, but instead requires a conformity determination for the ``period
ending'' in the later of 1) the tenth year of the transportation plan,
2) the attainment date or 3) the year following completion of a project
that will be programmed in the Transportation Improvement Program (TIP)
or receive approval before the subsequent conformity determination. The
requirement that the conformity determination must address the period
prior to the horizon date requires a showing that the area will conform
during the period in addition to a projection of conformity for the
latest horizon date. H.R. 3550 also requires an emissions analysis for
the years of the transportation plan that extend beyond the horizon
date used for the conformity demonstration. S. 1072 does not include a
counterpart provision.
STAPPA/ALAPCO Recommendation--STAPPA and ALAPCO's strong preference
is that the existing 20-year conformity horizon be retained; neither
bill provides for this. Of the two bills, we believe the House bill--
which allows for a shorter horizon only with the agreement of the air
pollution control agency, and requires an emissions analysis for the
additional years in the transportation plan beyond the 10-year horizon
date--is preferable.
Transition to New Air Quality Standards
Senate--S. 1072, sec. 1616 (pp. 276-278), amends CAA requirements
and EPA regulations that govern the methods for determining conformity
before an emissions budget is available to implement a new NAAQS. These
changes would allow an 8-hour ozone nonattainment area that currently
has a 1-hour ozone budget to stop conforming to that budget and,
instead, authorize EPA to establish ``other'' tests to determine
conformity.
House--H.R. 3550 has no counterpart provisions.
STAPPA/ALAPCO Recommendation--In November 2003, EPA proposed a
change to its transportation conformity regulations to create an option
similar to that in the Senate bill, to allow areas not to comply with
emissions budgets in approved SIPs during the multi-year hiatus before
new emissions budgets are adopted to implement the 8-hour ozone NAAQS.
STAPPA and ALAPCO opposed this proposed regulatory change in December
22, 2003 comments to EPA, explaining that removal of existing budgets
will allow much higher emissions during the interim period prior to the
development of new ozone SIPs, and that substantial deterioration in
air quality will occur during that period. STAPPA and ALAPCO continue
to hold this view and, therefore, believe the House bill is preferable.
If, however, the Senate provision is used as the basis for the
conference bill, it should be revised to maintain the use of currently
approved emissions budgets by allowing EPA to prescribe an alternative
conformity test only if the state has not already adopted an emissions
budget for ozone. For example, at the beginning of sec. 1616(3)(A)(ii)
(p. 277), add ``if no such budget, as described in 3(A)(i) above, has
been found adequate or has been approved,''.
Frequency of Transportation Plan and TIP Conformity Determinations
Senate--S. 1072, sec. 1615(a) (pp. 268-269), reduces the frequency
of conformity determinations for the TIP and Regional Transportation
Plan (RTP) in nonattainment and maintenance areas from at least every
three years (under current law) to every four years, unless the MPO
elects to redetermine conformity more frequently or a conformity
``trigger'' is pulled. The Senate bill also reduces the frequency of
updates to the TIP--from every two years to every four years, unless
the MPO elects to update more frequently--and the RTP--from every three
years to every four years in nonattainment and maintenance areas and to
every five years in attainment areas that have never been designated
nonattainment, unless the MPO elects to update more frequently; the TIP
and the RTP are not required to be updated on the same schedule.
House--H.R. 3550, sec. 1824(b) (pp. 373-374), reduces the frequency
of conformity determinations for the TIP and RTP in nonattainment and
maintenance areas from at least every three years (under current law)
to every four years, unless the MPO elects to redetermine conformity
more frequently or a conformity ``trigger'' is pulled. Under secs.
5213(g) (p. 831) and 5213(h) (p. 836), the bill also reduces the
frequency of updates to the TIP and RTP to every four years in all
cases, unless the MPO elects to update more frequently.
STAPPA/ALAPCO Recommendation--STAPPA and ALAPCO have suggested
synchronizing conformity determinations on and updates to the TIP and
RTP, to occur at least every three years; both bills, however, go
further in reducing frequency. Of the two bills, we believe the House
bill is preferable.
Triggers for Conformity Determinations
Senate--S. 1072, sec. 1615(b) (pp. 270-272), revises the
``triggers'' for redetermining conformity to allow for less frequent
conformity determinations. The current trigger of SIP submittal is
replaced under subparagraph (2)(E)(i) with EPA's adequacy determination
of a submitted budget, which typically comes four to five months after
SIP submittal. Under subparagraph (2)(E)(ii), the current trigger of
SIP approval if a SIP adds, deletes or changes TCMs, is replaced with
SIP approval if the budget has not yet been used for a conformity
determination. The bill also extends the grace period after which MPOs
must conduct a triggered conformity redetermination for the TIP and RTP
from not later than 18 months after a trigger to not later than two
years after.
House--H.R. 3550 contains counterpart provisions in sec. 1824(a)
(pp. 372-373), except that the second trigger is based on EPA approval
or promulgation of a SIP that establishes a motor vehicle emissions
budget (MVEB) where none previously existed or that ``significantly
varies'' from a budget that had taken effect as a result of an adequacy
determination or a prior SIP approval.
STAPPA/ALAPCO Recommendation--STAPPA and ALAPCO have advocated for
retention of the existing triggers and the 18-month grace period; both
bills deviate from this. The difference between the two bills, with
respect to the second trigger, is that the Senate bill would allow the
two-year grace period clock to restart before the conformity
determination is conducted, while the House bill would only restart the
two-year clock if the budget in the approved SIP differs from the prior
budget. Of the two bills, we believe the House bill is preferable.
Conformity Lapse Grace Period
House--H.R. 3550, sec. 1824(e) (pp. 378-379), enacts a 12-month
grace period following a conformity failure, during which an area can
amend its transportation plan, if necessary, to modify the project list
or add TCMs sufficient to achieve emissions levels required by the MVEB
in the applicable SIP.
Senate--S. 1072 has no counterpart provisions.
STAPPA/ALAPCO Recommendation--The House addition of a 12-month
grace period to delay the effect of a conformity lapse after a
transportation plan or program is found to be inconsistent with the air
quality plan would inappropriately allow transportation projects to
move forward even after it is determined that the transportation plan
or program is at odds with the air quality plan. STAPPA and ALAPCO,
therefore, prefer the Senate bill.
Limiting Conformity to Regionally Significant Projects
Senate--S. 1072, sec. 1615(b) (pp. 273-275), defines the term
``transportation project'' as used in CAA 176(c)(2)(C) to mean only a
``regionally significant project'' or a change to a project that makes
it regionally significant. The CAA prohibits DOT from funding or
approving any ``transportation project'' unless it comes from a
conforming RTP and TIP. The new definition of ``transportation
project'' changes the applicability of the conformity provisions of CAA
176(c)(2)C) from all projects in a conforming plan or TIP to only
those that are regionally significant or that make a significant
revision to an existing project. Therefore, non-regionally significant
projects could be approved, accepted or funded during a conformity
lapse when the plan or TIP does not conform.
S. 1072 also amends every use of the term ``project'' by adding
``transportation'' to bring it under the new definition of
``transportation project'' as regionally significant. This language
narrows the scope of CAA 176(c)(3)(B)(ii), regarding carbon monoxide,
to exempt from conformity those projects that create a CO hotspot if
they are not regionally significant.
House--H.R. 3550 has no counterpart provisions.
STAPPA/ALAPCO Recommendation--STAPPA and ALAPCO prefer the House
bill because the Senate bill would allow large numbers of projects to
evade conformity review, thereby allowing projects to be funded even if
they would contribute to a conformity lapse.
Conformity of Projects Listed in the TIP
Senate--S. 1072, sec. 3006 (pp. 598-599), reenacts the
transportation planning provisions of 23 USC 5303 (g)(4)(D)(iii) by
requiring that projects listed in the TIP conform under the CAA if they
are located in an area designated nonattainment for ozone or carbon
monoxide. However, under this language, projects in PM<INF>10</INF> or
PM<INF>2.5</INF> nonattainment areas that do not conform under the CAA
may be still included in the TIP project list and, therefore, funded.
House--H.R. 3550 contains a counterpart provision in sec. 6001 (p.
857).
STAPPA/ALAPCO Recommendation--This provision, which is limited to
ozone and carbon monoxide, appears to create a conflict with CAA
176(c), which requires that conformity apply to any area designated
nonattainment for ozone, carbon monoxide or PM, and to ozone, carbon
monoxide or PM areas that are now designated attainment but which were
previously nonattainment. This provision should be deleted. If the
provision is retained, however, it should be 1) amended to also include
all nonattainment areas for any particulate matter standard and 2)
expanded to include all former nonattainment areas redesignated to
attainment, so as to avoid a repeal by implication of the scope of
conformity in CAA 176(c).
Congestion Mitigation and Air Quality Improvement Program
STAPPA and ALAPCO strongly support the CMAQ program, which provides
a discrete source of funding explicitly set aside for transportation
projects that meet air quality objectives and for projects that result
in sustainable air quality improvement. The CMAQ program appropriately
reinforces the interrelationship between the transportation and air
quality planning processes by specifically recognizing and seeking to
ameliorate the transportation sector's impact on air quality. Since
1991, when the program was established, it has been demonstrated that
CMAQ can play a significant role in helping states and localities
address transportation-related air quality problems.
Our associations believe, however, that this important program
should be strengthened in several ways: 1) by requiring the concurrence
of state and local air quality agencies for CMAQ project evaluation and
selection; 2) by expanding the areas eligible to receive CMAQ funding;
3) by placing greater emphasis on projects that will result in direct,
timely and sustained air quality benefits; and 4) by substantially
increasing the federal commitment of resources to the CMAQ program, to
reflect the true and very significant impact of transportation-related
emissions on air quality.
Role of Air Quality Agencies in the Evaluation and Selection of CMAQ
Projects
Senate--S. 1072, sec. 1613 (p. 266), requires the U.S. DOT
Secretary to ``encourage States and metropolitan planning organizations
to consult with State and local air quality agencies in nonattainment
and maintenance areas on the estimated emission reductions from
proposed congestion mitigation and air quality improvement programs and
projects.''
House--H.R. 3550 has no counterpart provisions.
STAPPA/ALAPCO Recommendation--STAPPA and ALAPCO have advocated
strongly that state and local air pollution control agencies be given a
``concurrence'' role in the evaluation and selection of CMAQ projects;
neither bill provides for this. Of the two bills, we believe the Senate
bill--which, at least, encourages consultation on estimated emission
reductions--is preferable.
Addition of Areas Eligible for CMAQ Funding
Senate--S. 1072, sec. 1611 (pp. 261-263), expands areas eligible to
receive CMAQ funding to include PM<INF>2.5</INF> (in addition to ozone
and carbon monoxide) nonattainment and maintenance areas. By continuing
to refer generally to ``ozone'' nonattainment and maintenance areas,
the bill also allows 8-hour ozone nonattainment and maintenance areas
to be eligible for CMAQ funding.
House--H.R. 3550 has no counterpart provisions.
STAPPA/ALAPCO Recommendation--STAPPA and ALAPCO believe that areas
eligible to receive CMAQ funding should be expanded to include not only
8-hour ozone and PM<INF>2.5</INF> nonattainment and maintenance areas,
but PM<INF>10</INF> nonattainment and maintenance areas as well. The
associations further believe that CMAQ eligibility should be extended
to areas nearing nonattainment; areas whose transportation-related
emissions have an impact on a nonattainment area; and areas that
experience other air quality problems as a result of transportation-
related emissions, including, but not limited to, hazardous air
pollutants from mobile sources. Neither bill provides for expansion to
this extent. Of the two bills, we believe the Senate bill--which
expands eligibility for CMAQ funding to PM<INF>2.5</INF> and 8-hour
ozone nonattainment and maintenance areas--is preferable. We urge that
the language be revised to also ensure the eligibility of
PM<INF>10</INF> nonattainment and maintenance areas.
Expansion of Projects Eligible for CMAQ Funding to Include
Transportation Systems Management and Operations
Senate--S. 1072, sec. 1701 (pp. 293-300), expands the scope of
projects eligible for CMAQ funding to include those that ``improve
transportation systems management and operations'' without any showing
that such projects will improve air quality. The broad definition of
``transportation systems management and operations'' includes, among
others, such projects and activities as traffic detection and
surveillance, work zone management, electronic toll collection, roadway
weather management and traveler information services, all of which are
unrelated to improving air quality.
House--H.R. 3550 contains counterpart provisions in sec. 1202 (pp.
118-119).
STAPPA/ALAPCO Recommendation--The provisions included in both bills
would inappropriately open the limited funds available for CMAQ to
projects unrelated to air quality. STAPPA and ALAPCO urge that they be
deleted.
Authorization of CMAQ Funds
Senate--S. 1072, sec. 1101, authorizes $13,435,344,394 over six
years (2004-2009) for the CMAQ program.
House--H.R. 3550, sec. 1101, authorizes $9,388,989,000 over six
years (2004-2009) for the CMAQ program.
STAPPA/ALAPCO Recommendation--Funding for CMAQ in FYs 1998 through
2003 was $8,122,572,000. STAPPA and ALAPCO believe the historic
allocation of CMAQ funds is inadequate to address transportation-
related air quality problems that exist now and that will exist in the
future. The associations have advocated that overall funding of the
CMAQ program should be increased significantly to reflect the expanding
scope and magnitude of transportation-related emissions and their
impact on air quality, and to accommodate new PM<INF>2.5</INF> and 8-
hour ozone nonattainment areas. Of the two bills, we believe the Senate
bill--which provides a greater increase in CMAQ funding--is preferable.
Other Issues
TCM Substitution
Senate--S. 1072, sec. 1617 (pp. 278-282), establishes a procedure
for adding or substituting TCMs in the SIP. Although the bill allows
for the addition or replacement of TCMs, provided the substituted
measures achieve equivalent or greater emission reductions and are
implemented on a schedule consistent with that for TCMs in the SIP, the
bill specifically does not provide any agency with the lead role, and
does not provide the air pollution control agency with even a
concurrence role in determining whether a TCM should be substituted
and, if so, what the substitute measure(s) should be. Instead, the
Senate bill merely provides air agencies with a general role in a
``collaborative process'' and a concurrence role only with respect to
determining the equivalency of the substitute or additional measure(s).
In addition, Subparagraph (B), regarding adoption of substitute or
additional TCMs, could force a state to change its SIP even if it is
adequate for attainment. Subparagraph (D) eliminates the conformity
mechanism in current law for ensuring that TCMs are funded and
implemented.
House--H.R. 3550, sec. 1824(d) (pp. 376-378), also includes
provisions for TCM substitutions, but expressly states that the state
``may'' (versus ``shall'') approve the changes to its SIP and requires
the MPO to determine that funding is available in the TIP to ensure
implementation of the new TCMs.
STAPPA/ALAPCO Recommendation--Although STAPPA and ALAPCO support
the concept of TCM substitution, the associations do not believe
legislative action is necessary or appropriate. However, of the two
bills, we believe the House bill--which corrects many of the
deficiencies of the Senate bill--is preferable.
Integration of Natural Resource Concerns into State and Metropolitan
Transportation Planning
Senate--S. 1072, secs. 1501(a)(1)(A)(ii) and 1501(b)(1)(A)(ii) (pp.
152-153), adds ``minimizing adverse health effects from mobile source
air pollution'' to the list of planning factors for MPO and state long-
range transportation plans that MPOs are not required to consider
(because judicial review is barred even if the factors are not
considered at all). In addition, the bill adds a new paragraph (f)(2)
to 134 and 135, allowing the MPO or state to ``determine which of the
factors described in paragraph (1) are most appropriate for the
metropolitan area to consider.'' This provides more explicit authority
for planning agencies to disregard any factors they determine are not
``appropriate.''
House--H.R. 3550 has no counterpart provisions.
STAPPA/ALAPCO Recommendation--The Senate provisions are highly
problematic because 1) MPOs and states are granted discretion not to
consider the adverse health effects of mobile source air pollution and
2) if the health effects of air pollution are considered to encompass
the emissions regulated under conformity, then the bar against judicial
review could be held to bar judicial review of MPO or state conformity
determinations. STAPPA and ALAPCO, therefore, prefer the House bill.
Transportation Project Development Process
Senate--S. 1072, sec. 1511 (pp. 180-184), adds a new 326 to 23
USC. Paragraphs (f)(7) and (g)(6) allow U.S. DOT, as the lead agency,
to determine whether air quality, water quality, species and habitat
protection, transportation and land use plans are appropriate for
consideration in determining the purpose and need for a project. As
written, the new language inappropriately allows the lead agency
discretion to disregard ``environmental protection plans,'' which could
include, among other things, SIP requirements for TCMs.
House--H.R. 3550 has no counterpart provisions.
STAPPA/ALAPCO Recommendation--STAPPA and ALAPCO prefer the House
bill. If, however, the Senate provisions are used as the basis for the
conference bill, they should be revised--in both (f)(7) and (g)(6)--to
ensure that consideration of and compliance with applicable
environmental, land use and other plans adopted to protect community
resources are not discretionary. For example, the language of (f)(7)
and (g)(6) should be amended to read FACTORS TO CONSIDER--The lead
agency will ensure that the following factors and documents are
considered and complied with in determining the purpose of and need for
a project.
______
STAPPA/ALAPCO
CMAQ and Transportation Conformity Principles for Reauthorization of
TEA-21
October 1, 2002
Transportation is the dominant source of air pollution in our
nation, posing a significant threat to public health. The State and
Territorial Air Pollution Program Administrators (STAPPA) and the
Association of Local Air Pollution Control Officials (ALAPCO) endorse
the fundamental principle that transportation and air quality goals
should be harmonized to ensure that our transportation choices
contribute to improving our environment. As we seek to reduce
transportation-related emissions, we recognize the critical importance
of the Congestion Mitigation and Air Quality Improvement (CMAQ)
program, long-term air quality/transportation planning processes and
close collaboration and cooperation between air quality and
transportation agencies in harmonizing air quality and transportation
goals. As the Transportation Equity Act for the 21st Century (TEA-21)
undergoes reauthorization, STAPPA and ALAPCO urge that opportunities
for enhancing these programs and processes be explored.
Congestion Mitigation and Air Quality Improvement Program
STAPPA and ALAPCO strongly support the CMAQ program, which
appropriately reinforces the interrelationship between the
transportation and air quality planning processes by specifically
recognizing and seeking to ameliorate the transportation sector's
impact on air quality. Over the past ten years, it has been
demonstrated that CMAQ--which provides a discrete source of funding
explicitly set aside for transportation projects that meet air quality
objectives and for projects that result in sustainable air quality
improvement--can play a significant role in helping states and
localities address transportation-related air pollution problems. As
CMAQ undergoes review as part of the reauthorization of TEA-21, STAPPA
and ALAPCO offer the following principles for enhancing the program:
Role of Air Quality Agencies in CMAQ Project Selection
State and local air quality agencies must have a more defined and
consistent role in the evaluation and selection of CMAQ
projects.
The concurrence of state and local air quality agencies must be
required for project selection, through a well-defined
consultation and concurrence process.
Increase in CMAQ Funds and Expansion of Areas Eligible to Receive
Funding
The historic allocation of CMAQ funds is inadequate to address
transportation-related air quality problems that exist now and
that will exist in the future. Therefore, overall funding of
the CMAQ program should be increased, to reflect the expanding
scope and magnitude of transportation-related emissions and
their impact on air quality, and in anticipation of new
PM<INF>2.5</INF> and 8-hour ozone nonattainment areas.
CMAQ funding should be apportioned based on the severity of an area's
air quality problem and its population.
The types of areas currently eligible to receive CMAQ funding (i.e.,
1-hour ozone, PM<INF>10</INF> and CO nonattainment and
maintenance areas) should be expanded to include
PM<INF>2.5</INF> and 8-hour ozone nonattainment and maintenance
areas.
Areas eligible to receive funding should also include:
areas nearing nonattainment;
areas whose transportation-related emissions have an impact on a
nonattainment area; and
areas that experience other air quality problems as a result of
transportation-related emissions, including, but not
limited to, hazardous air pollutants from mobile sources.
Project Eligibility
Greater emphasis should be placed on projects that will result in
direct, timely and sustained air quality benefits; criteria for
substantiating such benefits should be established and data to
support the quantification of such benefits should be required.
Certain types of congestion mitigation projects (e.g., road and
bridge construction and expansion) may have the long-term
effect of inducing growth in vehicle miles traveled and urban
sprawl, and of creating new congestion corridors. CMAQ funding
should be shifted away from such projects unless there is a
demonstration that these projects will result in sustained air
quality benefits.
To qualify for CMAQ funds, a project should be required to
demonstrate that a specified minimum air quality benefit
threshold is met or exceeded, based on established criteria and
supporting data; such a threshold should be determined with the
concurrence of the appropriate state and/or local air quality
agency.
Funding eligibility criteria and guidance should be more clearly
defined to meet the above objectives.
To the extent that these project eligibility criteria are followed,
states and localities should then have discretion in
determining which qualifying projects receive funding.
Project Funding Beyond Three Years
Project funding beyond three years should be allowed and decided on a
case-by-case basis and contingent on a demonstration of need
and continuing air quality benefit.
Such extended project funding should be phased out over time.
Transportation Conformity
Implementation of transportation conformity as Congress envisioned
it in Section 176(c) of the Clean Air Act Amendments of 1990 has only
begun to occur within the last few years. Delays in establishing motor
vehicle emissions budgets resulted in the unintended consequence of
protracted use of the less-than-perfect build/no-build test for
determining conformity. However, now that motor vehicle budgets are in
place in nonattainment areas, STAPPA and ALAPCO firmly believe that
conformity can be implemented as intended, and that its purpose--to
ensure that shorter-term Transportation Improvement Programs (TIPs) and
long-term Regional Transportation Plans (RTPs) contribute to the timely
attainment of healthful air quality and are consistent with (i.e.,
conform to) the motor vehicle emissions budgets contained in the State
Implementation Plan (SIP) for air quality--can be fulfilled with
increasing success.
Because the conformity of transportation plans to air quality plans
is critical to achieving clean air goals--particularly given the
continued increase in motor vehicle use and vehicle miles traveled--
preserving the conformity requirements and schedules now in place is
crucial. Specifically, STAPPA and ALAPCO recommend the following:
Frequency of Conformity Determinations
Regular and timely analyses to demonstrate compliance of constrained
TIPs and RTPs with SIP motor vehicle budgets must be
maintained. Such continued frequency will ensure that sound
data is generated and allow for the timely improvement of motor
vehicle emissions estimates. The result will be improved air
quality and timely progress toward attainment of the NAAQS and
other air quality goals.
To better harmonize timelines, conformity analyses on the TIP and the
RTP should be synchronized and conducted no less frequently
than once every three years.
In addition, the 18-month SIP ``trigger'' for determining conformity
must be maintained.
Planning Horizon
The 20-year planning horizon for transportation plans must also be
retained. Such long-range planning is imperative to ensuring
that the potential for growth in mobile source emissions is
identified, the impact on air quality is assessed and
adjustments to transportation plans are made accordingly.
Mr. Otter. Thank you very much. Mr. Replogle.
STATEMENT OF MICHAEL REPLOGLE
Mr. Replogle. Yes. Thank you, Mr. Chairman. I am Michael
Replogle, and I am Transportation Director of Environmental
Defense, representing our 400,000 members.
Despite progress in cleaning up air pollutions, half of all
Americans still live with dirty air. This pollution exacts a
real toll, contributing to asthma, lung cancer, heart disease,
and tens of thousands of premature deaths, at the cost that the
Federal Highway Administration has estimated at more than $40
billion a year, more than the entire Federal transportation
budget. I include in my testimony a summary of recent studies
on these health effects. Even tomorrow's cleaner cars and
trucks will emit a large portion of the smog-causing
pollutants, and remain a leading source of air pollution for
years to come, and that is because Americans are driving more
and more.
Conformity is a key tool that helps us to control the
pollution that contributes to these programs. It helps us keep
unanticipated growth in traffic and pollution from motor
vehicles from causing regional air pollution control strategies
to fail, as has happened repeatedly in the past. Conformity has
also spurred broader political support for cleaner vehicles,
fuels, and maintenance programs, strategies that have helped to
curb traffic and pollution growth, with better travel choices.
Proposed changes to conformity threaten to undo this
progress, and to weaken a key tool designed to help State and
local air pollution officials manage vehicle emissions on a
long term basis. The result will be that air quality will
deteriorate, and there will be fewer options for controlling
pollution. Not only will the health of our citizens suffer, but
other sources, at greater cost, may be forced to implement
emission reductions that proper transportation planning could
have avoided.
We urge you not to upset the existing clean air and public
health protections built into our transportation programs. Both
H.R. 3 and last year's Senate transportation bills include
provisions that weaken these protections, although in most
cases, H.R. 3's provisions are less damaging. The most
preferable action Congress can take is to reaffirm the existing
law with no changes. We urge you to reject any efforts to add
new provisions that would weaken clean air protections during
the conference negotiations.
A Senate proposal to cut the conformity analysis horizon
for transportation plans from 20 to 10 years would allow
officials to ignore, until it is too late, the growth of air
pollution set in motion by developing new highways, which often
take more than a decade to be fully seen. In 15 years, only six
metro areas have faced problems meeting the 20-year test, and
in every case, added long-term pollution controls, or changing
transportation plans, has solved these problems. The only
reason to change this planning horizon for conformity would be
to disregard the long term consequences of added roads to force
other sources, like the electric utility industry, or the auto
industry, to incur the costs of correcting those consequences.
H.R. 3 is less damaging than the Senate proposal, because
it would continue the 20-year requirement, except in areas
where the metropolitan planning organization and air pollution
control agency agree that the horizon, which agree to reduce
the horizon, and that allows local needs to be taken into
account, and other safeguards to be adopted.
The Senate proposal would also narrow the scope of
conformity, so it would apply only to regionally significant
projects, rather than to the entire transportation program and
plan. It would exempt smaller projects from requirements to
consider local pollution hot spots and cumulative impacts. It
would allow large investments in polluting projects during a
conformity lapse, worsening the violation of emission budgets.
Thankfully, H.R. 3 has no counterpart provision. A Senate
proposal would also allow transportation agencies to modify
transportation control measures and SIPs without oversight from
environmental agencies, weakening the integrity of those SIPs,
and leading to their failure. H.R. 3 corrects some of those
deficiencies.
Current law requires updating conformity for areas with
unhealthful air quality every 3 years for long range
transportation plans, which matches and synchronizes with the 3
year milestone compliance demonstration requirements, by which
EPA can ensure timely updates to air quality plans. The Senate
bill and H.R. 3 propose a 4-year cycle, and H.R. 3 would add to
this a 1-year grace period before conformity lapse takes
effect. These changes would undermine timely awareness and
action to correct conflicts between transportation and air
quality plans, contributing to more missed clean air deadlines.
Another Senate provision would set aside current limits on
motor vehicle emissions in areas that violate the national
ozone standard. Current emission budgets for these areas were
approved by EPA a few years ago. The bill would not require new
limits on motor vehicle emissions in these areas until new
pollution control plans are submitted by the States to
implement the new, more stringent ozone standard. And that is
years off. According to EPA, that delay, when no emission
budgets would be in effect, could allow motor vehicle emission
increases of 10 to 50 percent above the current levels allowed.
EPA concluded in a recent rulemaking that these large increases
in emissions could prevent an area from ever meeting the new
national health standard.
And finally, conformity has fallen short in one of its
goals, and that is to encourage transportation plans to
contribute to more timely attainment of healthful air quality.
But there are regions that have shown progress in this area,
and are finding ways to reduce pollution at no cost through
better community designs that minimize traffic growth while
maximizing travel choices. Salt Lake City, Sacramento, Denver,
and Charlotte, and others, have recently built on the early
success of Portland, Oregon in this area.
Recent reports by the Center for Clean Air Policy discuss
some of the best practices and offer useful suggestions for how
to improve clean air and transportation planning. I include
these in my testimony, and commend these for your
consideration.
Thank you.
[The prepared statement of Michael Replogle appears at the
end of the hearing.]
Mr. Hall. I thank you, sir. The Chair recognizes Mr.
Holmes.
STATEMENT OF BRIAN HOLMES
Mr. Holmes. Mr. Chairman. Mr. Chairman, Ranking Member
Boucher, I am Brian Holmes of the Maryland Highway Contractors
Association, here today on behalf of the American Road &
Transportation Builders Association. We appreciate this
opportunity to discuss the Clean Air Act transportation
conformity provisions of H.R. 3.
At the outset, please know that we share your interests in
assuring that all Americans breathe clean air. We believe the
conformity provisions in H.R. 3 are an important step in
reaching that goal. Conformity is of critical importance to the
transportation construction industry, which is why, over the
past 5 years, ARTBA has been heavily involved in supporting
government agencies in conformity related litigation.
Mr. Chairman, there are two points I hope the subcommittee
will take away from today's hearing. First, government agencies
and planning bodies need more flexibility on conformity. And
second, the public, including those who build transportation
projects for government agencies, need more predictability in
the transportation conformity process.
Right now, the conformity process is not flexible. Some
have tried to turn it into an exact science, which it is not.
Conformity determinations are based on assumptions and computer
modeling. Look what happened when the Mobile Five model was
replaced by the Mobile Six model. Most emissions were projected
to decline, but there was an initial bump-up that threw a
number of jurisdictions into nonattainment. As in any case
where the margins of error can exceed the changes you are
attempting to measure, there needs to be some leeway given to
State and local governments. The process also has been made
more rigid over the last 10 years by litigation brought by
those opposing specific projects, or the notion of increased
highway capacity.
H.R. 3 addresses these concerns, and we strongly support
its proposals. H.R. 3 improves the flexibility of
transportation conformity in the following areas, new triggers
for conformity determinations, and conformity determination
updates, time horizons for conformity determinations in
nonattainment areas, and substitution of transportation control
measures for conformity determinations in State implementation
plans.
H.R. 3's 12-month grace period for existing projects in
areas that have fallen out of attainment will allow already
approved, environmentally sound projects to continue while
State and government--State and local governments take actions
to return to attainment. This application of flexibility and
common sense is to be commended. Abruptly halting
transportation projects after a finding of nonattainment is
both costly and inefficient. The 1 year grace period will also
cut down on lawsuits designed to delay and ultimately halt
needed projects. The goal of H.R. 3's grace period could be
additionally furthered by grandfathering, or the creation of
other safe harbors for projects.
Conformity must be forward looking. Once a transportation
project is in a conforming plan, it should be permanently
grandfathered until it is either built or removed from the
plan. Legislation to do that was introduced last Congress by
Representatives Brady and Green, and cosponsored by Chairman
Hall, along with others on this subcommittee. ARTBA urges
Congress to introduce and pass that bill, H.R. 673, the Safe
Highways and Roads Act. It is much needed legislation.
Fully supporting the reforms in H.R. 3, ARTBA invites the
subcommittee to consider 3 measures to further improve the
transportation conformity process. First, areas transitioning
to new air quality standards should be allowed to use their
existing motor vehicle emissions budgets until new emissions
budgets are available. This avoids the need for project-
specific conformity determinations, allows progress without
unnecessary delay, and maintains adherence to existing
environmental safeguards. This provision was contained in
Senate 1072, SAFE-TEA, as passed by the Senate last session,
and it deserves another look now.
Second, the gestation process for a highway project is so
long and involved that there is a need for protection from
unnecessary lawsuits in areas such as seeking judicial review
of motor vehicle emission budgets. Also, when lawsuits do
arise, there should be equal participation for all interested
parties, including contractors and transportation users. Third,
the subcommittee might wish to consider a diesel retrofit
program for diesel-powered construction equipment.
Mr. Chairman, Ranking Member Boucher, members of the
subcommittee, ARTBA appreciates this opportunity to present
testimony on this much needed legislation, and I look forward
to answering any questions.
[The prepared statement of Brian Holmes follows:]
Prepared Statement of Brian Holmes, Executive Director, Maryland
Highway Contractors Association on Behalf of the American Road &
Transportation Builders Association
Introductory Remarks
Good afternoon Mr. Chairman, Ranking Member Boucher and members of
the Subcommittee. Thank you very much for providing the American Road &
Transportation Builders Association (ARTBA) with the opportunity to
present its views on the transportation conformity process and reform
provisions related to it in H.R. 3, ``The Transportation Act: A Legacy
for Users.''
I am Brian Holmes, executive director of the ARTBA affiliated
Maryland Highway Contractors Association (MHCA). Prior to joining MHCA,
I served 13 years as director of regulatory affairs for the Connecticut
Construction Industries Association, also an ARTBA state affiliate. I
am also privileged to serve as chairman of the Nationwide Public
Projects Commission.
I am here today representing ARTBA, whose eight membership
divisions and more than 5,000 members nationwide, represent all
sectors--public and private--of the U.S. transportation design and
construction industry. ARTBA, which is based in Washington, D.C., has
provided the industry's consensus policy views before Congress, the
Executive Branch, federal judiciary and the federal agencies for 103
years.
The transportation design and construction industry ARTBA
represents generates $200 billion annually to the nation's Gross
Domestic Product and sustains the employment of more than 2.5 million
Americans.
I would like to say at the outset that ARTBA shares your interest
in assuring that all Americans breathe clean air. We are not here today
to suggest a radical overhaul of the conformity process. We would,
however, like to suggest some badly-needed ``fine-tuning'' of federal
law that will not only improve public health from a clean air
perspective, but also improve the efficiency of making environmentally-
sound and needed transportation investments.
General Background on the Clean Air Act and the Transportation
Conformity Process
Under the federal Clean Air Act, the U.S. Environmental Protection
Agency (EPA) regulates six criteria pollutants: ozone, carbon monoxide,
nitrogen dioxide, sulfur dioxide, particulate matter (also known as
soot and dust) and lead. For each pollutant, EPA has established
minimal targets known as the National Ambient Air Quality Standards
(NAAQS) that must be met by state and local governments.
If an area exceeds EPA's standards for any one of these
``criteria'' pollutants, it is designated a nonattainment area,
triggering a series of steps that must be taken to come into compliance
with the standards. In addition, for ozone, carbon monoxide and some
particulate matter nonattainment areas, the EPA further classifies the
area based on the magnitude of the nonattainment. These classifications
are used to specify what pollution reduction measures must be adopted
for the area and what deadlines must be met to bring the area into
attainment.
Once an area is designated as nonattainment, the state must
establish a State Implementation Plan (SIP) outlining how the state
will come into compliance with EPA standards over a designated period
of time. The SIP includes an emissions budget that shows allowable
levels of emissions from three separate sources. They are stationary
sources (i.e., power plants, factories), area sources (i.e., dry
cleaners, gas stations) and mobile sources (i.e., cars, lawnmowers).
The mobile source portion of the emissions budget is further subdivided
to include a Motor Vehicle Emissions Budget (MVEB), which is the total
emissions allowed for cars and trucks. Once this number is known,
metropolitan planning organizations (MPOs) are charged with putting
together both short-term Transportation Improvement Programs (TIPs) and
long term Regional Transportation Plans (RTPs) that demonstrate
projected emission that are less than the MVEB. Thus the TIP and RTP
must fit within the constraints established by the SIP.
The transportation conformity process refers to the requirement set
forth in Section 176 of the Clean Air Act that air emissions generated
by transportation projects match or ``conform'' to emissions budgets
established in state air quality plans. If the TIP does not conform
with the SIP, the area is deemed to be out of conformity. If an area is
out of conformity, federal highway funds are cut off. As a result, an
area's TIP cannot include highway or transit transportation
construction projects that will accommodate transportation anticipated
to result in emissions that exceed the MVEB.
Transportation Sector Successes in Achieving Cleaner Air
Mr. Chairman, there's no doubt that we have made great progress
over the past 30 years in improving the nation's air quality. Much of
this progress has been achieved through technology advancements spurred
by motor vehicle emissions standards and controls and cleaner motor
fuels. According to a report recently released by the Environmental
Protection Agency entitled ``Air Emissions Trends, Continued Progress
Through 2003,'' emissions from highway vehicles were dramatically
reduced between 1970 and 2003. Specifically, carbon monoxide emissions
were reduced by 64 percent, volatile organic compounds--a precursor to
ozone--were reduced 74 percent, particulate matter (PM-10) emissions
declined 61 percent, and nitrogen oxide (NOx) emissions went down by 42
percent. These numbers are even more remarkable given that since 1970,
the U.S. population has grown more than 39 percent, the number of
licensed vehicles has increased about 90 percent and the number of
vehicle miles traveled has increased 155 percent.
In addition, earlier this year, major automobile manufacturers
announced a new generation of vehicles that are 99 percent cleaner than
vehicles produced 30 years ago. This reduction in emissions comes from
a four-part strategy that includes cleaning up the fuel as it goes into
the vehicle, burning the fuel more precisely in the engine, removing
undesirable emissions with a catalyst after the engine, and monitoring
all of these systems to ensure these minimal emission levels.
So you can see, Mr. Chairman, much of the progress that has been
made in improving the nation's air quality, has come from the
transportation sector.
Problems with the Conformity Process
Mr. Chairman, that leads me to my comments about the conformity
process itself. There are two things I hope you take from this hearing
today: (1) that government agencies and planning bodies need more
flexibility on conformity; and (2) that the public--especially those
who contract with government agencies to build transportation
improvement projects--need more predictability in the transportation
conformity process.
One of the major problems with the conformity process is that some
have tried to turn it into an exact science, when it is not. Conformity
determinations are based on assumptions and computer modeling. All you
have to do is to look back at the predictions made during the enactment
of the Clean Air Act Amendments of 1990 to understand that ``modeling
of future events'' often does not reflect reality.
An example of this is EPA's transition from the Mobile5 model to
the Mobile6 model for predicting future on-road emissions. In applying
the new Mobile6 model to current data, regions are experiencing a
substantial short-term increase in predicted emissions for some
pollutants as compared to the Mobile5 model. While over the long term
the Mobile6 model shows decreasing emissions, this could cause
substantial problems for many areas and threaten a potential conformity
lapse in the short term. Even though the data being entered into the
models is the same, each shows significantly different outputs.
This problem is amplified by the fact that quite often
transportation plans and the SIPs they are supposed to conform with are
often out of sync with one another. This is largely due to the fact
that transportation plans have very long planning horizons and have to
be updated frequently, while most air quality plans have very short
planning horizons and are updated infrequently. As a result, many of
the planning assumptions that must be used for conformity
determinations of transportation plans and programs are not consistent
with the assumptions that were used in the air quality planning process
to establish emissions budgets and to determine appropriate control
measures. In other words, because the most recent planning data must
always be used, an increase in emissions and possible conformity lapses
can occur simply because the numbers or models relied on in the
transportation plan are not the same numbers relied upon in the air
quality plan.
Part of this is due to the fact that the priority of various
transportation projects often changes and every time this occurs, the
plan needs to be updated.
While many have suggested that the planning horizons should be
brought more in sync with one another, another option would be to
simply allow greater flexibility in the process, recognizing the
inexact science involved.
Rather than requiring plans to conform to the ``nth-degree,''
perhaps a 10 percent ``cushion'' should be allowed so that
transportation planners would not have to amend their plans every time
they want to add or subtract even a relatively insignificant project.
Such a cushion would also permit some differences in planning data
or models and would allow a margin of error for modeling assumptions
planning organizations make but have no real way of predicting with
precision--such as economic growth or the current price of gasoline--
even though such things have a substantial impact on future travel or
the use of larger vehicles like SUVs.
Very few conformity lapses occur because a region has a major clean
air problem. They occur because one of the parties involved cannot meet
a particular deadline. As a result, the conformity process has become a
top-heavy bureaucratic exercise that puts more emphasis on ``crossing
the t's and dotting the i's'' rather than engaging the public in true
transportation planning that is good for the environment and the
mobility of a region's population.
Opening the Door to Unnecessary Litigation
Mr. Chairman, flexibility in the conformity process also has been
constrained by litigation initiated over the past several years by
parties opposed to individual transportation projects and/or the
concept of increasing highway capacity. This litigation will only
increase in light of the recently enacted EPA requirements for PM-2.5
and ozone.
In 1997, in Sierra Club v. EPA, the court said EPA could not
continue the practice of allowing areas that are new non-attainment
areas to have a one-year grace period before they need to perform a
conformity test. In yet another court case in 1999 (Environmental
Defense Fund v. EPA), the court struck down EPA's practice of
``grandfathering'' projects when a conformity lapse occurs. Up to this
point, when an area went into a conformity lapse projects could proceed
if they had already met all of the necessary environmental requirements
and were part of a conforming transportation plan at the time of the
lapse. In defending its own rule before the court, EPA stated:
``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 process.''
42 U.S.C. 7506(c)(2). [EDF v. EPA, Case No. 97-1637, Respondent's
Brief, June 10, 1998, p. 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.' ''
[EDF v. EPA, Case No. 97-1637, Respondent's Brief, June 10, 1998, p.
36.]
Two other long-standing practices have also been struck down by the
courts, which has reduced flexibility in the conformity process and
deserve this subcommittee's attention:
EPA is often not able to approve a state's motor vehicle emissions
budget in time for a conformity determination to be made. Prior
to the EDF v. EPA case mentioned above, these budgets were
assumed to be automatically approved if EPA did not act within
a certain period of time. That decision, however, struck down
this long-standing practice.
Many states have not been able to meet their ozone compliance
deadlines since much of their clean air problem is the result
of ozone drifting in from other areas, known as ozone
transport. In the past, EPA has granted extensions to the
deadline in some of these areas. However, in Sierra Club v. EPA
(D.C. Cir. 2002), the court ruled that EPA does not have the
authority to grant these extensions and must, instead, ``bump''
these areas into the next higher classification of
nonattainment, which would trigger several additional mandatory
control measures.
Without the flexibility option of ``grandfathering'' projects, we
have seen a significant increase in conformity-related litigation.
Those opposed to an individual project--or the mix of projects or modal
funding in a transportation plan--have been given tremendous leverage
by the EDF v EPA decision. They can now use conformity-related
litigation as a sure way to temporarily, if not permanently, stop
previously approved, environmentally sound projects and plans.
Threatened with such litigation--or actually sued over conformity
process-related issues--state and local planning agencies are put under
enormous pressure to either give into the demands of the dissenting
minority, or face endless rounds of litigation.
In response to this reality, ARTBA joined several other industry
groups in 1999 to form Advocates for Safe and Efficient Transportation
(ASET), a litigation group aimed at assisting governmental entities in
defending the transportation planning and delivery process. While many
of the professional environmental groups talk a lot about wanting a
more ``inclusive'' transportation planning process, the fact of the
matter is really quite different.
Since ASET was formed, it has spent hundreds of thousands of
dollars, not in arguing the merits of many of these cases, but in
battling with environmental groups over simply trying to get a seat at
the table. I could provide you a pile of court briefs where groups like
the Sierra Club argue adamantly that the construction labor
organizations and industry should not have a say in the final decision
about transportation plans. The truth is that the Sierra Club and many
of their colleague organizations do not want an inclusive planning
process. They want a process where they and they alone are allowed to
influence the process.
When the planning process is allowed to be hijacked by any one
individual group, bad decisions are made. The truth is that America
needs a dynamic transportation network to meet the needs of a growing
population and economy. Such a network should include improving public
transit, increased utilization of synchronized traffic signalization
and other ``smart road'' technologies, improving local management of
traffic incidents to clear roadways quickly and adding road capacity
where appropriate and desired by a majority of local citizens. This is
key to reducing traffic congestion and the unnecessary auto, truck and
bus emissions it causes. It is also essential to maintaining time
sensitive ambulance, police and fire emergency response service.
On a related front, the Sierra Club recently initiated litigation
which has temporarily halted a desperately needed highway improvement
project on U.S. 95 in Las Vegas, Nevada. ARTBA, realizing the far
reaching implications of this litigation filed a ``friend of the
court'' brief supporting the United States Department of Transportation
in the case. 1This type of litigation demonstrates that professional
environmental groups will use any legislative loophole available to
delay desperately needed transportation construction process. These
actions on the part of the professional environmental community further
show that the transportation planning process needs to be insulated
from needless litigation.
Mr. Chairman, I believe very strongly in the transportation
planning process--a process that involves public involvement by all
stakeholders and final decisions that are made by public officials.
However, we have come to a point where the planning process is breaking
down under a mound of litigation.
The Human & Economic Costs of Delaying Transportation Improvements
Mr. Chairman, there are several very important reasons--often
missing from the debate--for making sure that the transportation
conformity process is reformed to limit its use by those whose aim is
simply to obstruct transportation development:
Unnecessary delays thrown in the way of transportation projects delay
infrastructure improvements that can cut the harmful emissions
and billions of dollars in wasted motor fuel caused by traffic
congestion.
Such delays drive up the ultimate construction cost for the project
to the taxpayer. In this case, time certainly is money.
Most importantly, however, they delay the initiation of
infrastructure improvements that can save lives and prevent
injuries. With more than 42,000 Americans dying each year on
the nation's roadways, that should be a primary consideration.
The fact is, one third more people die each year in motor
vehicle crashes than die of bronchitis and asthma combined.
Motor vehicle crashes are the leading cause of death of young
Americans under the age of 25.
changes to the transportation conformity process in the
``transportation equity act: a legacy for users'' (h.r. 3)
Mr. Chairman, provisions in H.R. 3 concerning transportation
conformity address a number of the problems associated with the process
and we strongly support these proposals.
Conformity Redeterminations
Section 1824(a) of H.R. 3 extends the requirement for new
conformity determinations resulting from an EPA finding of adequacy or
approval of a new MVEB to two years. This is an improvement over the
current regulations which require conformity determinations within 18
months. Again, this is a positive step.
Beyond this, what is needed is MVEB adequacy and regulatory
flexibility. A 1999 court ruling struck down an EPA rule that conferred
automatic MVEB approval if EPA did not act promptly and called into
question EPA's overall process for approving MVEBs in submitted-but-
not-yet-approved SIPs. Conformity obligations often arise with short
notice due to changes in attainment status or failure of EPA to timely
approve MVEBs or SIPs. Without an approved MVEB, conformity
determinations cannot be found and transportation projects cannot be
approved.
Frequency of Conformity Determination Updates
Section 1824(b) of H.R. 3 extends the timeline for determining
conformity to every four years with all too frequent exceptions when an
MPO chooses to update the plan or TIP more frequently or when SIP
actions trigger a new conformity determination. This is an improvement
over the current law, which requires conformity determinations every
three years.
By extending the timeframe for conformity determinations, H.R. 3
cuts down on unnecessary requirements that do not have any analytical
value unless there has been a major change in emissions.
Another method of dealing with this issue would be to require
conformity updates only in instances where a changed TIP affects
projected emissions by more than a set threshold amount.
A new conformity determination should not be required if one or
several projects are added to the transportation plan or TIP, as long
as the net emissions from their inclusion will not add more than three
percent to projected transportation emissions in the plan. In reality,
added transportation emissions that might be facilitated by a single
highway project are minuscule. This would avoid what is largely a
paperwork exercise.
Conformity determination should not be done simply for its own
sake. It is a very intensive and rigorous process. Rather, it should
only be required only when significant changes to the TIP warrant. H.R.
3, by extending the time frame for conformity determinations, is a good
step in this direction.
Time Horizon for Conformity Determinations in Nonattainment Areas
Section 1824(c) of H.R. 3 limits conformity to the end of the
maintenance period provided that the MPO and air quality agency agree.
the ``Safe, Accountable, Flexible, and Efficient Transportation Equity
Act of 2004'' (S. 1072) as passed by the Senate last session, did not
contain the requirement that the MPO and air quality agency agree. This
is a more efficient approach, as there should not be a need for the
agreement of the MPO and the air quality agency here. If the
maintenance period has ended, then conformity determinations should no
longer be required. By tying this decision to the agreement of the MPO
and air quality agency, this provides an unwelcome opportunity for
extension of the conformity requirements when they are no longer
needed.
Section 1824(c) of H.R. 3 further provides that, in general,
conformity findings must be based on the last (20th) year of
transportation plans. It allows, with agreement of the MPO and
applicable air quality agency, conformity findings to be based on the
latest date of the 10th year of the transportation plan, the attainment
date of the SIP, or the year after the completion date of a regionally
significant project (if approval is required before a subsequent
conformity determination). Regional emissions analysis must be done for
the remaining years of the transportation plan.
While this enhanced flexibility is positive, H.R. 3 does not
include provisions allowing for the imprecision of data inputs to be
appropriately accommodated. As stated above, modeling is an inexact
science at best. Requiring conformity to be demonstrated to the ``nth''
decimal point makes little sense from a public policy standpoint. We
recommend that, conformity should be allowed to be demonstrated if the
emissions from the transportation plan are at least within 10 percent
of the emissions budget. In addition, SIPs should contain an adequate
``margin of safety'' to avoid conformity lapses due to marginal changes
in expectations.
Substitution of Transportation Control Measures
Section 1824(d) of H.R. 3 allows the substitution of transportation
control measures without a mandatory SIP revision under certain
circumstances. This is a positive change that allows for alternate
planning without triggering an unnecessary SIP revision process.
Lapse of Conformity
Section 1824(e) of H.R. 3 provides that ``conformity lapses'' will
not take effect until 12 months for projects approved prior to a
finding that an area is not within conformity. This is a welcome relief
from the rigidity of the conformity process allowing projects to
continue while actions are taken to return to conformity. Abruptly
halting transportation projects after a finding of nonattainment is
both costly and inefficient. This reinstatement of the one-year grace
period also will cut down on unnecessary lawsuits designed to delay and
halt vitally needed transportation projects.
The goal of H.R. 3's grace period provision could be further
accomplished by the restoration of grandfathering or the creation of
other safe harbors for projects. Conformity must be forward-looking.
Retroactive invalidation of projects after funding approval is
counterproductive to smart growth and mobility considerations.
Conformity lapses stop all projects, transit and highway alike, and
puts construction crews out of work without notice. Once a
transportation project is in a conforming plan, it should be
permanently grandfathered until built or removed from the plan.
Legislation introduced last congress by Representative Kevin Brady (R-
TX) and Representative Gene Green (D-TX), and cosponsored by
Subcommittee Chairman Ralph Hall (R-TX) and others this subcommittee,
H.R. 673 ``The Safe Highways and Roads Act'', accomplished this goal.
The conformity provisions of H.R. 3 represent a significant step
forward in improving the transportation conformity process.
ADDITIONAL CONFORMITY REFORM RECOMMENDATIONS FOR INCLUSION IN H.R. 3
While ARTBA fully supports the reforms contained in H.R. 3, the
following measures should be considered in this legislation to further
improve the transportation conformity process:
Allow Use of Existing MVEB's to Demonstrate Conformity
Areas transitioning into new air quality standards should be
allowed to use existing MVEB's addressing the same pollutants or other
emissions tests to demonstrate conformity before budgets are available.
This avoids the need for project specific conformity determinations and
allows the transportation process to proceed without unnecessary delay
while adhering to existing environmental safeguards. This provision was
contained in the ``Safe, Accountable, Flexible, and Efficient
Transportation Equity Act of 2004'' (S. 1072) as passed by the Senate
last session.
Prohibit MVEB Judicial Review
Under existing regulations, EPA can declare a MVEB adequate for
transportation planning purposes prior to approval of the entire SIP.
This approval process is not as comprehensive as full SIP approval and
EPA reserves the right to withdraw its approval at anytime (therefore,
it is not a final agency action). Environmental groups have filed
lawsuits alleging that preliminary MVEB approval must be as rigorous as
final SIP approval and EPA has not contested jurisdiction in these
lawsuits. (i.e., 1000 Friends of Maryland suit against EPA).
Provide Further Protection From Lawsuits
Planners have to rely on current state-of-the-art modeling and good
faith estimates to develop air quality and transportation plans.
Environmental groups are attacking the estimates and demanding
exactitude that doesn't exist.
A requirement on plaintiffs to make an initial showing of bad faith
before filing suit would allow only suits with some standard of merit
to proceed. In the absence of such a showing, agreement by the MPO,
state air quality agency, EPA and U.S. DOT should be per se evidence of
the validity of emissions estimates. (Example: Sierra Club sued
Sacramento for using EPA data). Almost 200 U.S. counties will face
conformity for the first time under the revised ozone and particulate
matter standards. They will not be able to develop ``airtight'' plans
immediately, thus opening the door to lawsuits. These areas must be
given adequate time (at least two years) and adequate resources to
develop the detailed databases needed to demonstrate conformity.
Smaller MPOs, in particular, are ill-prepared to fulfill all of the
conformity requirements.
Ensure Private Sector Transportation Improvement Advocates Have Equal
Intervention Rights
Environmental groups are using lawsuits to pressure policy makers
and exclude other stakeholders. Contractors and transportation users
should have the right to participate in lawsuits as equals to
professional environmental groups. A double standard leads to
duplicative lawsuits and moves the planning process out of the public
forum and into the courtroom.
Conclusion
Mr. Chairman, Ranking Member Boucher, and other members of the
subcommittee, ARTBA deeply appreciates having this opportunity to
present testimony to you on this critical transportation issue. To
summarize my comments:
The nation is making huge progress on cleaning up the air, but almost
all of this progress can be attributed to technology gains, not
transportation control measures;
Greater flexibility and predictability is needed in the
transportation planning and conformity process;
H.R. 3 takes several positive steps towards achieving a workable
transportation conformity process that both benefits the
environment and allows for needed transportation development.
More must be done to put a stop to the endless litigation that is
tying the transportation planning process into knots;
Delaying transportation improvement projects results in unnecessary
deaths and other negative costs to society.
Again, thank you. I look forward to any questions the Committee
might have.
Mr. Hall. All right. I thank you very much. And I will
start the questions, and I would ask Mr. Clifford, you state
that MPOs without conformity requirements are freer to
undertake activities such as scenario planning, enhanced public
participation, and other innovative measures. How does being
able to undertake these activities affect air quality goals and
transportation planning?
Mr. Clifford. Well, that is an example of some other
planning activities that represent good methods. The point we
were trying to make was we are spending possibly an inordinate
amount of time with some of the conformity activities, by the
fact that we do it throughout the year.
Mr. Hall. I am trying to find out if being able to
undertake these activities doesn't benefit both air quality
goals and transportation planning.
Mr. Clifford. Yes, sir. That is really what we meant by
that, to further the planning function.
Mr. Hall. Ms. Liebe, if I have read your testimony
correctly, at the bottom, you say that ideally, Congress should
do nothing with respect to conformity, but if it does, the
House bill is better than the Senate bill. It seems like
someone has testified that the Senate bill was better than the
House bill. I don't want to get you into a debate here, but
kind of give us your reasons for saying that.
Ms. Liebe. Thank you, Mr. Chairman. The reasons why--the
main reason we prefer the House version is the opportunity for
air quality agencies to participate in the decisionmaking on
whether or not emissions analysis is going to be conducted
beyond the 10 years that is currently called for in the Senate
bill. The House version allows that to be agreed upon only with
the concurrence of the State air quality agency, and we really
think it is critical that you look out 20 years, so that you
can evaluate all of the future impacts of the facilities, as
you are making the decisions on where to put your investment.
Mr. Hall. Mr. Replogle, did I say that right?
Mr. Replogle. It is Replogle.
Mr. Hall. Okay. If I have read your testimony correctly, at
the bottom, you say that ideally, Congress should do nothing
with respect to conformity. But if it does act, the House bill
is better than the Senate bill. You agree to that?
Mr. Replogle. Yes. That is correct.
Mr. Hall. And in your testimony, you complain, though, that
the Senate bill would reduce the planning horizon from 20 to 10
years. Now, does the House bill maintain the 20 year planning
horizon?
Mr. Replogle. Yes, it does, except when both the State and
local agencies, and regional planning bodies all agree to you
try and use a shorter horizon. So there is some flexibility in
the House bill to adopt a shorter horizon, but in the default
case, the 20 year planning horizon stays in place, and we think
that that is preferable to the Senate's proposal.
Mr. Hall. And you have a Washington, DC example. Do I
understand that example? Under existing law or under the law as
amended by H.R. 3, Washington, DC is a nonattainable area?
Mr. Replogle. Washington, DC has been a nonattainment area
for decades, and has missed repeated clean air deadlines, in
part, because it has underestimated the growth of motor vehicle
pollution, and the fact that under current law, the need to
review the transportation conformity every 3 years has, in
fact, in the Washington region, just in the last several years,
prompted additional pollution reduction measures to be taken by
Maryland and Virginia and the District of Columbia, that has
helped us to protect public health. And if the changes that are
proposed in H.R. 3 or the Senate bill were--would have been
law, those pollution reductions might not have been taken.
Mr. Hall. So what would it take to make the DC area an
attainment area?
Mr. Replogle. It will take additional steps to reduce
pollution from all sources, motor vehicles and power plants,
and other sources. There is a significant concern under the
Senate bill that the Washington region is likely to approve a
lot of new transportation projects, which will make it, in the
next several years, which would make it far more difficult for
the region to attain the health standards that have been put in
place.
Mr. Hall. I thank you. My time is up. The Chair recognizes
the gentleman from Virginia.
Mr. Boucher. Thank you, Mr. Chairman. And I want to express
appreciation to our witnesses for informing us of their views
this afternoon.
Your concerns have been well articulated here, and have
been duly noted by us. The recommendations that you have made
for changing the statutory language have been duly noted. I am
not going to dwell on that in my question. We face a practical
problem, and that is, the bill is going to the floor next week,
and we need to make some decisions about what we are going to
do about the matters we have discussed here today.
I perceive that each of you would probably prefer the House
version of this legislation to the Senate. Some of you would
prefer that we do nothing, that the Congress do nothing, and
leave the situation as it is, but that is not likely to happen.
We are probably going to have changes. I think you acknowledge
that. And given that reality, let me just ask each of you, and
this can be a simple yes or no, would you prefer the House
version to the Senate version? I would like to get each of you
to respond to that.
We will start with you, Mr. Clifford. And a simple yes or
no is what I am looking for here.
Mr. Clifford. The House version.
Mr. Boucher. Thank you. Ms. Liebe.
Ms. Liebe. The House version. I also want to throw in that
I really would like to recognize the work of this subcommittee,
and of your staff, in coming up with H.R. 3.
Mr. Boucher. Thank you very much. Mr. Replogle?
Mr. Replogle. I will second the comments that Ms. Liebe has
just made, both preferring the House version, and commending
the staff for their work here.
Mr. Boucher. Thank you. Mr. Holmes?
Mr. Holmes. We would prefer the House version. We believe
the provision for the 12-month grace period is particularly
useful in cases where there is poor synchronization between
parallel programs.
Mr. Boucher. Well, thank you for those answers. I had
assumed that each of you would prefer the House version to the
Senate version. And I would also assume that you would
encourage us to go forward at this point, because if we do
nothing, then the bill goes into conference with the Senate
version, which you do not prefer. I think you would probably
prefer to have the House version there, to put alongside the
Senate version when the conference takes place. Would all of
you agree with that?
Mr. Clifford.
Mr. Clifford. Yes.
Ms. Liebe. Yes.
Mr. Boucher. Yes. Everyone agrees.
Mr. Replogle. Yes.
Mr. Boucher. Okay. Well, you have been most agreeable
witnesses. Thank you. That concludes my questions, Mr.
Chairman. And again, I want to thank you for sharing your time
with us today.
Mr. Hall. I thank you, and that will conclude our hearing,
and we do thank you, and don't have any pangs of anxiety about
the lack of members here, because as you see, this is taken
down. It will be given to every member, not just of this
subcommittee, but of the entire Energy and Commerce Committee,
and the U.S. Congress. It is available to them. It is from
these, this testimony, that we will prepare and carry out the
passage of this Act, and we are going to pass it, I think, in
the House.
I really thank all of you. Thank you for your patience, the
time it took you to get here, the time to go home, the time to
prepare, and for all the time you spent standing by here today.
We really appreciate it. You helped us an awful lot.
With that, we are adjourned.
[Whereupon, at 5:50 p.m., the subcommittee was adjourned.]
[Additional material submitted for the record follows:]
Response for the Record by Hon. Charles D. Nottingham, Associate
Administrator for Policy, Department of Transportation, Federal Highway
Administration
QUESTION FROM HON. CHARLES A. GONZALEZ
Question: Could you please clarify your understanding of the
timeline governing the opening of the U.S. border to NAFTA-related
truck traffic from Mexico?
Anawer: I consulted with the Federal Motor Carrier Safety
Administration (FMCSA), which has provided the following response:
A precise timeline cannot be specified at this time. In DOT's
Fiscal Year 2002 appropriations act, Congress specified more than
twenty conditions that needed to be met before the Department could
expend any funds for processing Mexican motor carrier applications for
operating authority beyond the border commercial zones. Pub. L. 107-87,
section 350. DOT satisfied the conditions of the appropriations act in
November 2002. Pursuant to our NAFTA obligations, the President shortly
thereafter lifted the moratorium on long-haul Mexican truck and bus
operations in the United States and indicated his commitment to making
access of commercial vehicles from Mexico to the full U.S. market a
reality.
In March 2002, FMCSA published interim final rules for motor
carrier applications and safety monitoring regulations for Mexican
motor carriers seeking authority to operate beyond the border
commercial zones, reflecting changes that were made to comply with some
of the conditions of section 350 of the FY2002 appropriations act.
Mexican officials have indicated that they view these stricter
regulations as being inconsistent with our NAFTA obligations.
Consequently, the Department has been engaged with our counterparts in
Mexico to clarify the requirements, address any concerns that may exist
and determine how best to move forward with the implementation process.
These discussions are ongoing, and no firm date has been established
for their conclusion at this time.
______
U.S. Environmental Protection Agency
The Honorable Ralph M. Hall
Chairman, Subcommittee on Energy and Air Quality
Energy and Commerce
U.S. House of Representatives
Washington, D.C. 20515
Dear Chairman Hall: Enclosed, for insertion into the hearing
record, are the U.S. Environmental Protection Agency's (EPA) responses
to follow-up questions from the March 2, 2005 hearing on the conformity
provisions in H.R. 3. I hope this information will be useful to you and
Members of the Committee.
Thank you for providing EPA the opportunity to testify on this
important issue.
Sincerely,
Jeffrey R. Holmstead
Assistant Administrator
Enclosure
QUESTIONS FROM THE HONORABLE RALPH M. HALL
1. Mr. Holmstead, according to your testimony, you state air
quality monitoring data show that from 1970-2003, concentrations of all
six criteria pollutants have declined, including the four criteria
pollutants that are most affected by the transportation sector: carbon
monoxide, nitrogen dioxide, ozone (smog), and particulate matter soot.
Can you state how the legislative provisions before us today will aid
in further declining these four pollutants that most affect the
transportation sector?
Response: While all of these pollutants are declining as a result
of control programs, vehicle activity continues to increase. Conformity
assures that transportation activities do not result in increases in
activity that would outweigh the pollution control gains that we have
achieved. The purpose of conformity is to ensure that an area's planned
transportation activities are consistent with or ``conform to'' the
motor vehicle emissions level established by the state air quality plan
before such activities can be federally funded or approved.
EPA did not perform quantitative analyses on the Administration's
proposed legislation or for the proposed legislative changes discussed
above. Specific local area information that would be required to
perform such analyses does not exist. When considering the targeted
improvements to the conformity program proposed by the Administration,
however, EPA considered a wealth of qualitative information.
Legislative changes that do not modify the underlying purpose of
conformity ensure that, on a regular basis, transportation planners
demonstrate that emissions from the area's transportation network are,
and will remain, consistent with emissions levels established in the
area's air quality plan.
QUESTIONS FROM THE HONORABLE ELIOT ENGEL
1. Mr. Holmstead: I am very concerned about the increased incidence
of asthma and other respiratory diseases related to air pollution. I
was interested to learn from the testimony of one witness that a recent
study in the Bronx, which I represent, shows asthma rates of one in
three children, where the national rate is one in five children.
According to this study, not only is the asthma hospitalization rate 12
times above the national average, but the very high levels of pollution
(measured as carbon) from diesel vehicles, appear to be associated with
the very high asthma rates. Isn't Clean Air Conformity part of the
solution to this problem? What assurances can you provide that the
changes suggested by the Administration for changing this program will
not have negative air quality impacts? Do you have analysis to support
your conclusions?
Response: EPA is also concerned about the high rates of asthma that
exist in many urban areas across the country and the role that diesel
emissions play. That is one reason EPA has championed both regulations
and voluntary programs to reduce diesel emissions. We have set
stringent emissions standards for both on-road and off-road diesel
vehicles and equipment. Additionally, we are aggressively pursuing
voluntary diesel retrofit programs and anti-idling programs and
providing demonstration grants around the country, including in New
York City.
Transportation conformity has played and will continue to play an
important role in ensuring that areas with poor air quality come into
attainment of the national ambient air quality standards and maintain
compliance with those standards in the future. The purpose of
transportation conformity is to ensure that transportation plans,
programs and projects do not create new air quality problems, delay
attainment of the air quality standards or make an existing air quality
worse. Transportation conformity will continue to accomplish its
purpose with the changes that have been proposed by the Administration.
EPA did not perform quantitative analyses for the Administration's
proposed legislative changes, nor is there specific local area
information that would be required to perform such analyses. When
considering these targeted improvements to the conformity program,
however, EPA considered a wealth of qualitative information. The
legislative changes proposed by the Administration do not modify the
underlying purpose of conformity which is to ensure that, on a regular
basis, transportation planners demonstrate that emissions from the
area's transportation network are, and will remain, consistent with
emissions levels established in the area's air quality plan. By
maintaining the underlying purpose of conformity, we are certain that
areas can move forward with conforming transportation plans, programs
and projects without causing new air quality problems, making existing
problems worse or delaying attainment of air quality standards.
2. I would also like to note that another study cited by a witness
suggests that diesel exhaust may lead to developmental aberrations in
children born to pregnant women in upper Manhattan and the South Bronx.
For obvious reasons, these studies are very disturbing to me and my
constituents. Are we sure that we can change the conformity requirement
to require less frequent planning looking at shorter time periods and
still have no impact on air quality? What is the basis for such
conclusions? Isn't it equally possible that we should leave the Clean
Air Act as it is and try harder to clean the air, taking great care
with the effects that road building has on air quality?
Response: EPA is working on many programs that will help address
these types of health effects on children born in urban areas. We are
pursuing a number of options, both regulatory and voluntary in nature,
to reduce diesel emissions. In addition to regulations addressing both
on-road and non-road diesel emissions, EPA has initiated several
cooperative efforts including the diesel retrofit program, the Clean
School Bus USA program and the Smartway Transportation Partnership.
While we agree that we need to take great care with the effects
that road building has on air quality, we believe that we can make
these changes to the Clean Air Act's conformity requirements without a
negative effect on air quality. Areas are still required to demonstrate
that their transportation plans and programs are consistent with their
air quality plans. Under the Administration's proposal, areas cannot
add new regionally significant projects to transportation plans and
programs until such a demonstration is completed.
Changing the minimum frequency for conformity determinations
responds to concerns raised by transportation stakeholders who
indicated that they could prepare better more comprehensive
transportation plans if they were given more time between required plan
updates and associated conformity determinations. As noted in a April
2003 GAO report on transportation and air quality planning
requirements, a number of transportation planners indicated that having
more time between required transportation plan updates and conformity
determinations would allow them to: address transportation concerns
such as relieving congestion and ensuring safety; think strategically
about future alternatives for the transportation network; develop
modeling and technical skills; obtain better planning information; and
better coordinate plans and projects with other agencies and
stakeholders, such as local land use agencies.
Changing the time period covered by conformity responds to concerns
raised by some transportation stakeholders that have indicated the
disconnect between the time periods covered by air quality plans,
usually 10 years or less, and conformity determinations, always at
least 20 years, has caused unnecessary difficulty in demonstrating
conformity in the past. We believe that the Administration's proposed
change to the period covered by conformity both addresses the concerns
raised by the transportation stakeholders while still requiring that
they examine emissions far enough into the future to gauge the impact
of their current transportation decisions. Additionally, the
Administration's proposal to require that each conformity determination
be accompanied by an emissions analysis for the last year of the
transportation plan provides an early warning to the area in the event
that emissions may increase in the future. Such an early warning would
give areas the opportunity to address potential problems now rather
further in the future.
For all of these reasons, we believe these changes can be made to
the Clean Air Act without sacrificing air quality gains.
QUESTIONS FROM THE HONORABLE CHARLES A. GONZALEZ
1. One of the challenges that local transportation planners have
faced in regards to conformity is the ``mismatch'' between State
Implementation Plans (SIPs) and Long Range Transportation Plans (LRTP).
LRTPs are 20-year planning documents, while the SIP's timeframe depends
upon the area's nonattainment status.
H.R. 3 contains provisions to address this mismatch. As Mr.
Clifford will explain in greater detail later this afternoon, H.R. 3
would do a better job at harmonizing these two planning horizons than
current law.
Building upon the improvements in H.R. 3, what steps will the EPA
take to work with the U.S. Department of Transportation to further
synchronize the planning horizons required for EPA's air quality
planning (namely, the State Implementation Plans) and the Metropolitan
Transportation Plans?
Response: Over the next few years, EPA will be working with DOT in
the development of new State air quality implementation plans (or SIPs)
for the 8-hour ozone and PM2.5 national ambient air quality standards.
Federal coordination is especially important when State and local
governments choose to address horizons that are longer than what the
Clean Air Act requires to protect public health in order to facilitate
conformity determinations.
Additionally, EPA believes that flexibility is already provided by
the Clean Air Act to allow States to decide for themselves whether a
SIP revision to incorporate a longer horizon is necessary. States are
in a better position to decide whether their SIP should establish a
longer horizon than what is required by the Clean Air Act. Therefore,
EPA would not want to require regular SIP updates or longer SIP
horizons in areas where air quality improvements are occurring as
anticipated by the SIP and conformity determinations are being made
without difficulty. Many existing nonattainment and maintenance areas
have been able to meet transportation conformity requirements without
extending the horizons in their SIPs. Other areas have chosen to
establish longer horizons in their SIPs to facilitate conformity
determinations. Some of these areas include Las Vegas NV, Portland OR,
Salt Lake City UT, Washington DC, and Albuquerque NM. We will continue
to provide assistance to State and local officials that need to develop
longer SIP horizons for conformity purposes.
In addition, EPA and DOT have established a national Memorandum of
Understanding (MOU) that provides a mechanism for regular consultation
between the federal agencies on SIPs that are developed across the
country. The MOU is intended to ensure the proper implementation of the
transportation conformity rule's provisions through better and more
efficient EPA and DOT consultation in order to facilitate timely
conformity and SIP decisions.
2. Could you please clarify your understanding of the timeline
governing the opening of the U.S. border to NAFTA-related truck traffic
from Mexico?
Response: The Department of Transportation (DOT) has authority to
address this issue. They have provided the following information in
response:
A precise timeline cannot be specified at this time. In DOT's
FY2002 appropriations legislation, Congress inserted provisions
that attached more than twenty conditions to the expenditure of
funds on the processing of Mexican motor carrier applications
for operating authority beyond the border commercial zones. DOT
satisfied the conditions of the appropriations act in November
2002. Pursuant to our NAFTA obligations, the President shortly
thereafter lifted the moratorium on long-haul Mexican truck and
bus operations in the United States and indicated his
commitment to making access of commercial vehicles from Mexico
to the full U.S. market a reality.
In March 2002, Federal Motor Carrier Safety Administration
published interim final rules for its application and safety
monitoring regulations for Mexican motor carriers seeking
authority to operate beyond the border commercial zones,
reflecting changes that were made to comply with some of the
conditions of the appropriations bill.
Mexican officials have indicated that they view these
stricter regulations as being Inconsistent with our NAFTA
obligations. Consequently, the Department has been engaged with
our counterparts in Mexico to clarify the requirements, assuage
any concerns that may exist and determine how best to move
forward with the implementation process. These discussions are
on-going and no firm date has been established for their
conclusion at this time.
3. During the hearing, Mr. Holmstead discussed the concept that
conversations with the Mexican government are underway to work with
PEMEX to provide lower sulfur diesel fuel in the Mexican interior. He
anticipated that such distribution would begin on roughly the same
timeline as federal mandates in the United States for Ultra Low Sulfur
Diesel (ULSD). What are the likely fuel specifications for the Mexican
low sulfur diesel?
Response: We understand that ULSD fuel being contemplated in Mexico
will be comparable in terms of component specifications to the fuel
being introduced in the United States, with appropriate changes to
reflect the Mexican market. In terms of emissions benefits, the sulfur
content is the critical specification given its impact on advanced
exhaust aftertreatment technologies as well as direct particulate
matter reductions associated with lower sulfur levels.
4. It is not clear that simply providing low sulfur diesel fuel in
the Mexican interior will reduce NOx emissions in existing engines. The
United States' ULSD does not provide important NOx reduction benefits
when used in current heavy-duty diesel engines. Rather, ULSD does
provide important NOx reductions when used in heavy-duty diesel engines
which are fitted with NOx reduction hardware requiring low sulfur
diesel.
On the other hand, Valero produces a diesel fuel product, TxLED,
which qualifies as a ULSD and provides extra NOx reduction benefits
when burned in existing heavy-duty diesel vehicle engines. If the
Mexican low sulfur diesel fuel blend envisioned by PEMEX were blended
to ULSD specifications, it may not perhaps produce meaningful NOx
reductions in any trucks save those, for example, meeting US
specifications consistent with US federal standards for heavy-duty
highway engines and vehicles, to take effect by 2007 (2007 Heavy-Duty
Highway Final Rule). Note that, in this case, such low sulfur diesel
fuel sold in Mexico would allow penetration by US trucks fitted with
advanced NOx reduction technologies; such vehicles could refuel in the
Mexican interior without fowling their low NOx hardware. This would
help open Mexico to travel by these advanced heavy-duty diesel trucks.
If the Mexican low sulfur diesel fuel envisioned by PEMEX were blended
to specifications like those of TxLED to provide NOx reduction benefits
when used in all existing engines, such fuel would both open the
Mexican interior to advanced cleaner trucks without fowling their low
NOx hardware and provide immediate NOx reduction benefits when used as
a fuel in all existing trucks.
If PEMEX does produce a low sulfur diesel, what is the extent of
the distribution region in Mexico and the likely timeline for
implementation?
Is there now a forum for discussion of such border affairs that
could include our local governments and other entities involved in
clean air planning?
Response: The sulfur content of diesel fuel has a primary impact on
engine-out emissions in its relationship to forming particulate matter,
with reductions in sulfur leading to lower particulate matter levels.
As you noted, the primary NOx benefits associated with ULSD are tied to
the effectiveness of NOx aftertreatment technologies, which is
maximized when sulfur poisoning due to fuel sulfur content is kept at
15 ppm or lower levels. We do note that the conventional refinery
processes that reduce the sulfur content of diesel tend also to
increase its cetane number slightly. Increased cetane number has been
correlated with lower NOx emissions. Thus, ULSD could indirectly
produce some small NOx reductions in existing engines.
TxLED (Texas Low Emissions Diesel fuel) is modeled on the
California diesel fuel program, and in general would have higher
cetane, lower density, and lower aromatics than conventional diesel
found elsewhere in the U.S. If it also has sulfur at or below 15ppm, it
may also qualify as ULSD. This fuel is estimated to produce NOx
benefits of approximately 5% for pre-2007 model year engines, as a
result of its cetane, density, and aromatics levels. As new engine
standards phase-in, these benefits are expected to decrease.
It is our understanding that Mexico is seriously contemplating
introduction of ULSD fuel nationwide, on a schedule at least a year
later than it is introduced in the United States. A final determination
on the fuel implementation schedule in Mexico has not been made.
The U.S.-Mexico Border 2012 Environmental Program created the Air
Policy Forum to focus and concentrate on broad policy issues which
require an ongoing dialogue between both countries. The Air Policy
Forum is chaired by a Deputy Assistant Administrator from EPA's Office
of Air and Radiation as well as the Director General of Air Quality
Management and the Pollutant Registry from Mexico's environment
ministry (SEMARNAT). Policy Forums, under the Border 2012 program, may
elect to address policy issues through Task Forces and/or project-level
efforts. Currently there are several local Task Forces in the border
region meeting on a regular basis. These binational meetings afford the
opportunity for local, state, tribal and federal representatives to
participate in meaningful dialogue on air quality planning and
management issues. Additionally, the Air Policy Forum has recently
convened two stakeholder-based meetings to discuss a broad set of air
quality issues in the border region. These forums have been an
effective venue to address and discuss a host of air quality related
issues, including the distribution and use of lower sulfur diesel fuel.
For more information about the Air Policy Forum, including Task Force
meetings, please go to www.epa.gov/border2012.
QUESTIONS FROM THE MARCH 2, 2005 HEARING
Congressman Gonzalez asked Mr. Holmstead for a date when the
Nogales border-crossing truck study would be completed.
Response: On March 10, 2005, EPA announced that they would provide
$200,000 to test air pollution emissions from trucks along the U.S. -
Mexico border near Nogales, Ariz. The air quality testing will begin
around March 14 and take approximately three weeks. Once the data has
been collected it will take approximately five months to assess the
data and prepare a report. A final report is expected in August 2005.
We will be happy to provide a copy of the final report when it is
available.
Congresswoman Solis asked Mr. Holmstead what has EPA done to reach
out to under-served communities with regard to air quality issues and
transportation conformity?
Response: EPA is committed to ensuring that the transportation
conformity program continues to be implemented effectively in all areas
of the U.S., including those areas with under-served populations. We
believe the Administration's proposal for the reauthorization of TEA-21
includes changes to the conformity program that will yield better
transportation and air quality results in all areas with air quality
issues by allowing more reasonable period for planning and decision-
making. Furthermore, we have and will continue to be committed to
providing timely training opportunities and technical assistance to
both nonattainment and maintenance areas.
For example, EPA, along with the Department of Transportation, have
provided timely guidance and training to new ozone and fine particulate
matter nonattainment areas before and as they implement the conformity
program to support effective implementation. After the July 1, 2004,
conformity rule addressing the new air quality standards was published,
EPA conformity staff held a ``road show'' to explain the requirements
of the rulemaking. Each EPA Region invited all the transportation and
air quality agencies in their jurisdiction to attend these
presentations. The training sessions were well attended by state and
local air quality and transportation representatives, mostly from non-
attainment areas. EPA also conducted a tele-video conference as a means
to allow those unable to attend the other sessions (due to lack of
resources or scheduling conflicts) another opportunity to learn about
the new conformity requirements. In the near future, EPA will offer
additional training on the conformity requirements for fine particulate
matter.
Additionally, EPA's Office of Transportation and Air Quality is
conducting a project in Baltimore with the Baltimore Urban League,
Baltimore Metropolitan Council, the National Transportation Center at
Morgan State University, and other stakeholders to help identify and
develop practices and tools to undertake a comprehensive analysis of
environmental justice and transportation-related issues in the
Baltimore region. The goal of this project is to integrate
environmental justice into transportation planning as an on-going and
daily activity with meaningful community involvement throughout the
process.
All Americans deserve to be protected from pollution. However,
EPA's Office of Air and Radiation (OAR) recognizes that, in some
instances, minority and low income communities face a higher level of
environmental risk than the majority population. Therefore, OAR is
committed to addressing this issue by incorporating environmental
justice into its activities and decision-making. The Office's goal is
to achieve environmental justice by decreasing the burden on
environmental risks to all communities as a result of improved air
quality.
OAR currently has an Environmental Justice Action plan that is
designed to support efforts to develop and implement strategies and
activities to integrate environmental justice into existing programs,
to further highlight the valuable work we continue to do in the area of
environmental justice, and to develop a more coordinated environmental
justice implementation strategy. As part of this plan, OAR has provided
funding for a number of specific air quality projects which have
environmental justice-related issues. These programs are part of EPA's
National Clean Diesel Campaign. Examples of such projects include:
Diesel Retrofit Program. This Program is a non-regulatory,
incentive based, voluntary program designed to pursue reductions in
hydrocarbons, nitrogen oxides, carbon monoxide, and particulate matter
from existing diesel vehicles and equipment by the installation of
pollution-reducing technology and other actions, such as reduced
idling.
These programs promote the use of advanced emission control
equipment reducing pollution from existing fleets. As part of these
efforts, OAR is working to establish tribal community retrofit
projects. One announced project involves a fleet of diesel vehicles
from the Winnebago Tribes in Nebraska which will be retrofitted with
pollution-reducing technology. An objective of this project is to
address the disproportionate exposure risk for tribal children who live
in this community.
OAR is entering into retrofit funding cooperative agreements with a
number of organizations. Competitive proposals for funding which
address environmental justice issues in the areas served by the
projects were required. The evaluation criteria included environmental
justice factors.
Clean School Bus USA. In April 2003, EPA launched ``Clean School
Bus USA,'' a new children's health initiative aimed at reducing air
pollution from school buses. This program is an outgrowth of EPA's
Voluntary Diesel Retrofit Program. Across the country, 24 million
children ride school buses spending a total of between 20 minutes and
several hours per day on these vehicles. Unfortunately, older school
buses can pollute up to six times more than buses using clean
technology. Children are especially vulnerable to the effects of diesel
emissions which can cause respiratory disease and exacerbate long term
conditions such as asthma. Reducing pollution from school buses will
help improve local air quality and reduce children's exposure to diesel
exhaust. Children in environmental justice areas who suffer from asthma
caused by diesel exhaust will benefit by the removal of one more asthma
trigger.
Smartway Transport Partnership. Under this voluntary program,
another initiative is the National Transportation Idle Free Corridors
Project which focuses on reducing emissions from long duration truck
and locomotive engine idling at locations within urban areas
(locomotive switch yards) and along major highway interstates (truck
stops). Many of these locations are in environmental justice areas and
will benefit from the achieved emissions reductions.
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