U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

99–907PDF 2005

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

COMMITTEE ON ENERGY AND COMMERCE

JOE BARTON, Texas, Chairman

RALPH M. HALL, Texas

MICHAEL BILIRAKIS, Florida

Vice Chairman

FRED UPTON, Michigan

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

NATHAN DEAL, Georgia

ED WHITFIELD, Kentucky

CHARLIE NORWOOD, Georgia

BARBARA CUBIN, Wyoming

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi, Vice Chairman

VITO FOSSELLA, New York

ROY BLUNT, Missouri

STEVE BUYER, Indiana

GEORGE RADANOVICH, California

CHARLES F. BASS, New Hampshire

JOSEPH R. PITTS, Pennsylvania

MARY BONO, California

GREG WALDEN, Oregon

LEE TERRY, Nebraska

MIKE FERGUSON, New Jersey

MIKE ROGERS, Michigan

C.L. ‘‘BUTCH’’ OTTER, Idaho

SUE MYRICK, North Carolina

JOHN SULLIVAN, Oklahoma

TIM MURPHY, Pennsylvania

MICHAEL C. BURGESS, Texas

MARSHA BLACKBURN, Tennessee

JOHN D. DINGELL, Michigan

Ranking Member

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

LOIS CAPPS, California

MIKE DOYLE, Pennsylvania

TOM ALLEN, Maine

JIM DAVIS, Florida

JAN SCHAKOWSKY, Illinois

HILDA L. SOLIS, California

CHARLES A. GONZALEZ, Texas

JAY INSLEE, Washington

TAMMY BALDWIN, Wisconsin

MIKE ROSS, Arkansas

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

ED WHITFIELD, Kentucky

CHARLIE NORWOOD, Georgia

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

GEORGE RADANOVICH, California

MARY BONO, California

GREG WALDEN, Oregon

MIKE ROGERS, Michigan

C.L. ‘‘BUTCH’’ OTTER, Idaho

JOHN SULLIVAN, Oklahoma

TIM MURPHY, Pennsylvania

MICHAEL C. BURGESS, Texas

JOE BARTON, Texas,

(Ex Officio)

RICK BOUCHER, Virginia

(Ranking Member)

MIKE ROSS, Arkansas

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

ELIOT L. ENGEL, New York

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

TED STRICKLAND, Ohio

LOIS CAPPS, California

MIKE DOYLE, Pennsylvania

TOM ALLEN, Maine

JIM DAVIS, Florida

HILDA L. SOLIS, California

CHARLES A. GONZALEZ, Texas

JOHN D. DINGELL, Michigan,

(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)

(1)

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

2

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 adjustVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 99907 HCOM1 PsN: HCOM1
3

ment 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

4

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,

5

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.

6

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 servVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6602 99907 HCOM1 PsN: HCOM1
7

ice 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

8

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 oneyear 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 priVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6602 99907 HCOM1 PsN: HCOM1
9

ority 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 coordinaVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6602 99907 HCOM1 PsN: HCOM1
10

tion 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 (PM10) 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

11

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 phasein 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 Federalaid 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 qualVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 99907 HCOM1 PsN: HCOM1
12

ity 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.

13

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, howVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6621 99907 HCOM1 PsN: HCOM1
14

ever, 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 havVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6602 99907 HCOM1 PsN: HCOM1
15

ing 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 PM2.5). 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 (NOX; 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

16

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 PM2.5 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

PM2.5 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, NOX and VOCs. Another non-regulatory approach to achieving emission reductions by providing travel choices is Best Workplaces for Commuters SM. Built around the tax-free commuter benefits in TEA-21

and modeled after the highly successful Energy Star partnership programs, Best

Workplaces for Commuters SM 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 SM covering over 2 million employees.

Finally, EPA has launched another innovative clean air program, the

SmartWay SM 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 apVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 99907 HCOM1 PsN: HCOM1
17

plies 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 PM2.5 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 PM2.5 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 PM2.5 standard. The

first of these rulemakings will add the precursors for PM2.5 (NOX, VOCs, sulfur oxides and ammonia) to the transportation conformity regulations and specify when

each of these precursors must be considered in conformity determinations in PM2.5

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.

18

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

19

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 MemVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 99907 HCOM1 PsN: HCOM1
20

bers 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.

21

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.

22

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

23

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

31⁄2 or 4 minutes left.

24

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.

25

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 transporVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6602 99907 HCOM1 PsN: HCOM1
26

tation 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

27

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?

28

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.

29

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

30

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

31

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 acVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6602 99907 HCOM1 PsN: HCOM1
32

tually 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 DallasFort 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

33

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

34

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, PM2.5, PM10 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

35

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.

36

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 PennVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6602 99907 HCOM1 PsN: HCOM1
37

sylvania 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

38

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

39

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

40

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

41

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

42

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

43

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 forVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6621 99907 HCOM1 PsN: HCOM1
44

ward 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.

45

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 peVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6602 99907 HCOM1 PsN: HCOM1
46

riod 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

47

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

48

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 outyears 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,

49

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

PM10 and PM2.5 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 PM10 and

PM2.5 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

50

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, PM10 and CO nonattainment

and maintenance areas, to also include PM2.5 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 transportationrelated 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 PM10. 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

51

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 (PM2.5), 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 PM2.5 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.

52

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

53

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 PM10 or PM2.5

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.

54

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 PM2.5 (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 PM2.5 nonattainment and maintenance areas, but PM10 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 PM2.5 and 8-hour ozone

nonattainment and maintenance areas—is preferable. We urge that the language be

revised to also ensure the eligibility of PM10 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 PM2.5 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

55

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

56

(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 transportationrelated 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 PM2.5 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,

PM10 and CO nonattainment and maintenance areas) should be expanded to include PM2.5 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 transportationrelated 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.

57

Project Funding Beyond Three Years

• Project funding beyond three years should be allowed and decided on a case-bycase 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 reVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6602 99907 HCOM1 PsN: HCOM1
58

gional 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

59

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

60

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

61

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 HIGH- WAY CONTRACTORS ASSOCIATION ON BEHALF OF THE AMERICAN ROAD & TRANSPOR- TATION 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 emisVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6621 99907 HCOM1 PsN: HCOM1
62

sion 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.

63

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 PM2.5 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 preVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6621 99907 HCOM1 PsN: HCOM1
64

viously 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

65

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

66

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.

67

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.

68

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.

69

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:

70

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,

71

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 betVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00075 Fmt 6633 Sfmt 6621 99907 HCOM1 PsN: HCOM1
72

ter 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

73

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 heavyduty 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.

74

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 bordercrossing 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 enviVerDate 11-MAY-2000 08:53 Jul 05, 2005 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6621 99907 HCOM1 PsN: HCOM1
75

ronmental 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.

76

77

78

79

80

81

82

83

84

85

86

87

88

89

90

91

92

93

94

95

96

97

98

99

100

101

102

103

104

105

106

107

108

109

110

111

112

113

114

115

Æ