[Senate Hearing 106-152]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 106-152


 
                   CONFORMITY UNDER THE CLEAN AIR ACT

=======================================================================

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 14, 1999

                               __________

  Printed for the use of the Committee on Environment and Public Works



                                


                      U.S. GOVERNMENT PRINTING OFFICE
 59-363 cc                   WASHINGTON : 1999
------------------------------------------------------------------------------
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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       one hundred sixth congress
                 JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire          DANIEL PATRICK MOYNIHAN, New York
JAMES M. INHOFE, Oklahoma            FRANK R. LAUTENBERG, New Jersey
CRAIG THOMAS, Wyoming                HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri        BOB GRAHAM, Florida
GEORGE V. VOINOVICH, Ohio            JOSEPH I. LIEBERMAN, Connecticut
MICHAEL D. CRAPO, Idaho              BARBARA BOXER, California
ROBERT F. BENNETT, Utah              RON WYDEN, Oregon
KAY BAILEY HUTCHISON, Texas
                     Jimmie Powell, Staff Director
               J. Thomas Sliter, Minority Staff Director

                                  (ii)



                            C O N T E N T S

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                                                                   Page

                             JULY 14, 1999
                           OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana.........     4
Bond, Hon. Christopher S., U.S. Senator from the State of 
  Missouri.......................................................     6
    Charts....................................................... 12-14
    Letters, submitted for the record............................ 14-22
    Statements:
        Associated General Contractors of America................    22
        EPA's Statements on Conformity in the Federal Register...     9
    Summary, environmental lawsuits..............................    24
    Text of S. 1053, a bill to amend the Clean Air Act to 
      incorporate certain provisions of the transportation 
      conformity regulations, as in effect on March 1, 1999......    10
Boxer, Hon. Barbara, U.S. Senator from the State of California...    67
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island     1
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     4
Lautenberg, Hon. Frank R., U.S. Senator from the State of New 
  Jersey.........................................................    25
Voinovich, Hon. George V., U.S. Senator from the State of Ohio...     2

                               WITNESSES

Carlson, E. Dean, Secretary of Transportation, Kansas Department 
  of Transportation..............................................    45
    Prepared statement...........................................    82
    Responses to additional questions from:
        Senator Chafee...........................................    86
        Senator Lieberman........................................    86
Kinstlinger, Jack, Vice Chairman, American Road and 
  Transportation Builders Association............................    64
    Charts......................................................108-114
    Prepared statement...........................................   104
Linton, Gordon J., Administrator, Federal Transit Administration, 
  Department of Transportation...................................    33
    Prepared statement...........................................    80
Perciasepe, Robert, Assistant Administrator, Office of Air and 
  Radiation, Environmental Protection Agency.....................    26
    Prepared statement...........................................    68
    Responses to additional questions from:
        Senator Boxer............................................    76
        Senator Lieberman........................................    73
Pisano, Mark, Executive Director, Southern California Association 
  of Governments.................................................    51
    Prepared statement...........................................    93
    Responses to additional questions from Senator Lieberman.....    95
Replogle, Michael, Federal Transportation Director, Environmental 
  Defense Fund...................................................    61
    Chart, grandfathered projects in Atlanta region..............    98
    Fact sheet...................................................   100
    Letter, opposition to S. 1053, several environmental 
      organizations..............................................    99
    Questions and answers on conformity..........................   101
    Prepared statement...........................................    96
Snow, Jacob L., General Manager, Clark County, Nevada, Regional 
  Transportation Commission......................................    49
    Prepared statement...........................................    89
Stephens, Jack, Jr., Executive Vice President, Customer 
  Development, Metro Atlanta Rapid Transit Authority.............    47
    Prepared statement...........................................    87
Wykle, Kenneth R., Administrator, Federal Highway Administration, 
  Department of Transportation...................................    32
    Prepared statement...........................................    80

                          ADDITIONAL MATERIAL

Articles:
    Dead End for State's Road Builders, Atlanta Journal-
      Constitution...............................................   116
    Ruling May Halt Metro Roads, Atlanta Journal-Constitution....   116
    Atlanta Fights the Downside of Prosperity, USA Today.........   117
Letters:
    AFL-CIO, Building and Construction Trades Department.........    21
    American Association of State Highway and Transportation 
      Officials..................................................    14
    American Automobile Association..............................    17
    American Highway Users Alliance..............................    19
    American Road and Transportation Builders Association........    19
    Associated General Contractors of America....................    18
    Defenders of Wildlife........................................    99
    Earthjustice Legal Defense Fund..............................    99
    Environmental Defense Fund...................................    99
    Environmental Working Group..................................    99
    Friends of the Earth.........................................    99
    International Union of Operating Engineers...................    22
    Izaak Walton League..........................................    99
    League of Conservation Voters................................    99
    National Association of Regional Councils....................    15
    National Environmental Trust.................................    99
    Natural Resources Defense Council............................    99
    Physicians for Social Responsibility.........................    99
    Sierra Club..................................................    99
    Zero Population Growth.......................................    99
Statements:
    Coverdell, Hon. Paul, U.S. Senator from the State of Georgia.    29
    Associated General Contractors of America....................    22
    Association of Metropolitan Planning Organizations...........    16
    Joyner, Jim, Chairman, Board of Commissioners, Henry County, 
      Georgia....................................................    29
    Mills, Brian A., Commissioner, Cass County, Missouri.........   114



                   CONFORMITY UNDER THE CLEAN AIR ACT

                              ----------                              


                        WEDNESDAY, JULY 14, 1999

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:30 a.m. in room 
406, Senate Dirksen Building, Hon. John H. Chafee (chairman of 
the committee) presiding.
    Present: Senators Chafee, Inhofe, Bond, Voinovich, Baucus, 
and Lautenberg.

           OPENING STATEMENT OF HON. JOHN H. CHAFEE, 
          U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Chafee. I want to welcome everyone to this 
oversight hearing on transportation conformity. I want to thank 
our witnesses.
    We have made significant progress in reducing 
transportation-related emissions. Transportation emissions, 
however, are still a significant portion of the air quality 
problem in many areas. Transportation conformity, the topic of 
today's hearing, is an odd sounding phrase, I must confess that 
it is. It is part of the enforcement mechanism in the Clean Air 
Act designed to ensure that transportation projects fit within 
an area's plan for clean air.
    The problem with making conformity work is most acute in 
those areas that most need it to work; namely, high growth 
communities that simultaneously face the need for a more 
extensive transportation system and the need to improve air 
quality. Today's transportation decisions in these high growth 
areas will affect air quality for decades to come.
    The transportation conformity process was designed to 
ensure that transportation projects and plans fit within an 
area's mobile source budget; that is, the emissions that come 
from automobiles and trucks. These emission budgets are 
determined by State and local governments as part of a State's 
implementation plan, the so-called SIP.
    It is important to recognize that transportation conformity 
does not pre-judge the important policy decisions of how an 
area will reduce air pollution. An area may decide to focus its 
air quality improvements on stationary sources, or on a mobile 
source reduction strategy such as vehicle inspection and 
maintenance programs that identify heavily polluting vehicles, 
or on nontraditional transportation improvements such as 
transit or HOV lanes.
    It is important to recognize that transportation conformity 
is not designed to stop highway projects. Its goal is to ensure 
that transportation projects and plans are consistent with an 
area's overall plan for achieving clean air. Failure to do so 
would mean that other means of reducing emissions will need to 
bear a greater share of the emissions reductions burden because 
transportation emissions have exceeded the agreed upon plan.
    In my view, transportation conformity is an important 
budget enforcement mechanism that is available at the State and 
local level. Even when a conformity lapse occurs, projects are 
halted only temporarily until the issue causing the lapse is 
resolved.
    Now one of the key purposes of today's hearing is to 
examine what impact a recent court decision and subsequent 
Federal guidance will have on the conformity process and its 
implications for transportation projects. I hope we will 
address some of these questions, as follows:

            1. At what point should a project be considered to 
        be able to proceed regardless of the status of an 
        area's air quality problems? The new conformity 
        guidance sets the funding agreement as a grandfathering 
        point whereas the old guidance allowed grandfathering 
        after completion of the National Environmental Policy 
        Act process, the NEPA process.
            2. Many on the transportation side of this issue 
        have complained about the so-called timing mismatch 
        which stems from the fact that air quality plans only 
        look a few years into the future, while transportation 
        plans are for 20 years.
            3. What other areas of the conformity process can 
        be improved.

    So we look forward to the witnesses today.
    Does anybody want to make a statement? Now is the chance.
    Senator Voinovich?

        OPENING STATEMENT OF HON. GEORGE V. VOINOVICH, 
              U.S. SENATOR FROM THE STATE OF OHIO

    Senator Voinovich. Mr. Chairman, first of all I would like 
to thank you for conducting this hearing today on 
transportation conformity under the Clean Air Act.
    It seems to me following the most recent court decision on 
the issue that we are left with a system of uncertainty for 
transportation planning. In the Subcommittee on Transportation 
and Infrastructure, I have held a series of hearings on 
streamlining of project delivery. I am concerned that this 
recent court decision may cause delay or impact projects 
already in the pipeline.
    What has developed is an uncertain, unpredictable 
environment for highway projects in this country which is not 
conducive to good public policy. For this reason, we may need 
to look at re-implementing the grandfathering provision which 
existed prior to the recent court decision and then make it 
clear as to what the rules will be in the future in regard to 
the issue of conformity. I think that Senator Bond's bill is a 
reasonable and balanced approach to allowing transportation 
projects to move forward.
    Now some may be concerned that we are trying to get around 
air standards. This is not the case. What S. 1053 does is 
simply codify the rules that EPA previously implemented which 
offered increased flexibility with no negative impact on health 
or environmental benefits. Under this bill, the States would 
still be required to meet the current maximum standards. I 
think that is important. In other words, my understanding is 
that we would allow regions to go forward to right-of-way and 
to project design, but they could not go forward to 
construction without being in conformity with the State 
Implementation Plan.
    While I was Governor of Ohio, we took great strides to meet 
air quality standards. When I first entered office, most of the 
urban areas had not attained the 1-hour ozone standard. Today 
in the State all of our areas have achieved the current ambient 
air quality standards. That took a lot of sacrifice on our 
part. I think that it is important for people who are 
representing various States, Mr. Chairman, to understand that 
many regions in this country compete with each other. For 
example, the people in the Research Triangle are always trying 
to move businesses out of Ohio to the Research Triangle. If 
they can go ahead and put in their highway projects and 
infrastructure projects and not be in conformity with air 
standards, then it puts us in the State of Ohio in a 
noncompetitive position. I think that everyone should be 
required to meet those standards.
    Second of all, when communities don't meet the conformity 
standards and they pollute the air, and we have a major problem 
like we have in the northeast corridor, and people are unhappy 
about it and they are looking around for somebody to blame, 
they turn to the west and to Ohio and other places. And so my 
feeling is that if the rules are in place, they ought to impact 
upon everybody in this country and there ought not to be 
anybody that should be exempted from it. So I really think it 
is important that we have some rules that we understand, that 
we comply with.
    And one last thing I would like to mention, Mr. Chairman, 
and that is that a lot of the communities in this country are 
going to have a dickens of a time meeting the conformity 
standards under the current ambient air standards. Two years 
ago when we got involved in the new ambient air standards, no 
one seemed to be concerned about what it was; it was something 
that was in a vacuum, and they did not really get it. Well, 
they ought to get it. This is a chickens come home to roost 
hearing. If we move to the new standards that the court has 
struck down temporarily, we don't know where they are going to 
go, I can tell you one thing, it is going to be very difficult 
in this country to move forward with infrastructure projects 
that are important to the transportation well-being of the 
United States of America.
    So we have got some real tough problems ahead of us. I am 
hopeful that we can deal with this current problem, but we 
ought also to be looking about what does the future look like 
in terms of where are we going as a Nation.
    Senator Chafee. Thank you.
    Senator Baucus?

             OPENING STATEMENT OF HON. MAX BAUCUS, 
             U.S. SENATOR FROM THE STATE OF MONTANA

    Senator Baucus. Thank you, Mr. Chairman. First of all, I 
compliment you on holding this hearing this morning involving 
the issues surrounding conformity.
    Air quality and transportation planning must go hand-in-
hand. I think there is no doubt about that. All of us who are 
involved in these issues know that. The Clean Air Act 
Amendments of 1990 reemphasize that and strengthen that. 
Basically, by that I mean, the connection between the two.
    But we have to make sure that they work together in a 
common-sense and reliable way. We do not want the increased 
funding we provided in TEA-21 to go to waste. And we certainly 
do not want to worsen air quality or public health.
    The recent court decision and the Administration's new 
regulations on conformity, however, seem to be causing some 
uncertainty, and I hope we can clear that up today. If not 
today, at least chart a course that makes the conformity 
process work for everybody all around the country. And I am 
committed to making sure that it can, and that it does.
    Mr. Chairman, I am also reminded of a meeting I held in 
Montana this last week with the State Department of 
Transportation, along with the official wildlife service, 
contractors, and others just as sort of taking stock of how 
TEA-21 is working in Montana. One of the issues that came up at 
the meeting was the potential delays caused by a listing of new 
species under the Endangered Species Act. The upshot of the 
meeting, however, was one that was very solid; it was a tone of 
cooperation, of working these matters out, making sure that the 
Fish and Wildlife Service had sufficient resources.
    We set up teams with the Department of Transportation in 
Montana to get ahead of the curve so that in that environmental 
matter, a very important matter--we do want to preserve and 
protect species, but, just like here, we want to make sure the 
air is clean--we do not deteriorate air quality. In that case, 
a problem that could have been confrontational, an issue where 
people could have ``demagogued'' it on both sides, didn't 
happen. People sat around the table and said, hey, we have got 
to do both here.
    That is what I hope we can accomplish here. We have to do 
both. We have to find a way to get these projects out in a way 
that conforms with the National Ambient Air Quality Standards 
and also the basic provisions of the Clean Air Act. We will get 
it done, just so long as people do not demagogue and look for 
newspaper headlines. I am not suggesting anybody here is. 
Nobody here is. But I am just suggesting that if we work 
together we can get this done.
    I compliment you, Mr. Chairman, on bringing everybody 
together.
    Senator Chafee. Thank you.
    Senator Inhofe?

          OPENING STATEMENT OF HON. JAMES M. INHOFE, 
            U.S. SENATOR FROM THE STATE OF OKLAHOMA

    Senator Inhofe. Thank you, Mr. Chairman. Like the rest of 
them, I appreciate your having this hearing. A lot of what I 
was going to say in an opening statement has been said by the 
Senator from Ohio, so I will just submit my statement.
    I do, however, want to express my concern for the way that 
the Administration has been treating and responding to these 
court decisions. In March, when they had a decision where the 
court struck down the grandfathering regulations to the Clean 
Air Act, the EDF versus EPA, this is a split decision, I 
requested that the Administration appeal this decision. They 
did not do it. Then in May when the decision came down in a 
split decision on the NAAQS, before the ink was dry the 
Administrator appealed the decision. So this is of great 
concern to me.
    I also want to say that I support the Bond bill and I am a 
co-sponsor of it. But to put this in an historic perspective as 
to some of my attitudes toward this type of thing, Mr. 
Chairman, I will share with you that back in 1966, when my very 
close friend in Oklahoma and my predecessor here in the Senate, 
David Boren and I were elected to the State legislature, 1966, 
a month later, in January 1967, he and I came to Washington to 
testify before this committee in objecting to Lady Bird's 
Highway Beautification Act of 1965. We based that on the idea 
that you cannot withhold moneys in order to coerce the States 
to do different things. So I think that kind of shows that we 
have come a long way since that time and I am not sure we have 
come the right direction.
    I would ask unanimous consent that my entire statement be 
made a part of the record, Mr. Chairman.
    [The prepared statement of Senator Inhofe follows:]
   Statement of Hon. James M. Inhofe, U.S. Senator from the State of 
                                Oklahoma
    I would like to thank the Chairman for calling today's hearing. 
This is a very important issue, millions of dollars of highway funds 
are at stake and thousands of jobs across the country. Let me summarize 
why I think we are here today.
    On March 2, 1999, in a split decision, the Court struck down the 
grandfathering regulations under the Clean Air Act, in EDF v. EPA. I 
requested that the Administration appeal the decision. They decided not 
to appeal, even though it was a split decision. In May, the court 
struck down the NAAQS decision, also by a split decision, and Carol 
Browner announced, before the ink was dry, that she was recommending an 
appeal. The biggest difference, in my opinion, was the plaintiff. In 
the NAAQS case the plantiffs were the States and industry, for 
conformity the plaintiff was an environmental group.
    The Administration has now come out with new conformity guidance 
which creates uncertainty for the States, will jeopardize highway 
projects across the country, increase air pollution, and according to 
the Unions and Highway Builders will lead to thousands of people losing 
their jobs.
    The court recommended that Congress address this issue and I am 
prepared to move forward with legislation. I expect to hear today from 
the Administration whether they will support legislation.
    My colleague Senator Bond has introduced legislation which 
basically codifies the regulations which the court struck down. This 
was the Administration's position prior to the March 2 court ruling. 
Does the Administration support this Bill?
    I am announcing today that I will cosponsor the Bond Bill. I do 
think that both my Air Subcommittee and Senator Voinovich's 
Transportation Subcommittee should take a close look at the Bill to see 
if any changes should be made in the conformity process. I think this 
is something that we can do fairly quickly and I call on my colleagues 
and the Administration to join us in moving the Bill.
    Senator Chafee. Who was chairman of the committee at that 
time?
    Senator Inhofe. I think it was John Chafee.
    [Laughter.]
    Senator Chafee. He has been around a long time, but not 
that long. I think it was probably Jennings Randolph.
    Senator Inhofe. I think it was.
    Senator Chafee. Senator Bond?

        OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, 
            U.S. SENATOR FROM THE STATE OF MISSOURI

    Senator Bond. Mr. Chairman, I thank you very much for 
having this hearing. I certainly appreciate the thoughtful 
comments of all my colleagues on this very important, complex 
question.
    My staff and I have put together a packet that is being 
handed out and will be handed out to all the members on Senate 
Bill 1053, including support letters from labor unions, 
metropolitan planning organizations, the American Association 
of State Highway and Transportation officials, and others, 
along with charts explaining the conformity process prior to 
the March 2 court decision, and some additional information.
    On May 14, I introduced S. 1053, a copy of which you now 
have. I introduced this bill because the court's decision puts 
local governments, metropolitan planning organizations, State 
governments in an unacceptable position. It is unacceptable 
because it delays vitally important highway projects that are 
needed in areas across the country that were approved prior to 
that time by the Federal Government under the NEPA process and 
all of the other required processes before they can go forward. 
These highway projects are designed to save lives, reduce 
congestion, and thereby reduce air pollution. These projects 
have gone through the process which required an air quality 
analysis. This bill is a very simple one. The only thing it 
does is to give EPA and DOT the flexibility back that they lost 
as a result of that March 2 court decision.
    In 1996, in formulating the regulation that was struck 
down, EPA received more than 50 comments from interest groups, 
including MPOs, State and local air quality officials, 
transportation officials, environmentalists including the EDF. 
Mr. Chairman, I have read the testimony provided by the 
representative of the Environmental Defense Fund. His first two 
sentences are: ``A vital provision of the Clean Air Act is 
today under attack. Senate Bill 1053 would reopen a loophole to 
let those who profit from building roads at taxpayer expense 
avoid accountability for the effects of their projects on 
public health and air quality.'' Those comments I believe are 
unfounded and outrageous. EPA, which promulgated the rules we 
seek to reinstate, had said about the rule when it issued it, 
``While these changes clarify the rule and in some cases offer 
increased flexibility, they will not result in any negative 
change in health and environmental benefits.''
    Furthermore, the statement does not understand the 
situation that is faced in many States across the country. We 
have heard of some already today. In my home State of Missouri, 
the Kansas City area is impacted. Missouri's highway fatality 
rate is above the national average. From 1992 to 1996, poor 
highway conditions contributed to the deaths of more than 5,000 
on Missouri highways. According to data from the Federal 
Highway Administration, more than 50 percent of Missouri roads 
are ranked ``poor'' or ``mediocre.'' There is a bridge in 
Kansas City that is in dangerous condition and its replacement 
has been held up. Indeed, other needed improvements in the 
Kansas City area are delayed as a result of the EDF and the 
court decision.
    The EDF's written testimony disappoints me but does not 
surprise me. Unfortunately, we have to work through the 
difficult situation and deal with the facts before us. The 
facts are that this bill will simply allow regulations that 
went through formal notice and public comment, negotiated, 
finalized, and implemented by the Environmental Protection 
Agency under the 1990 Clean Air Act Amendments to go forward. 
The same regulations that EPA defended in court until, as my 
colleague from Oklahoma testified, they decided not to appeal 
this decision although they had won a previous decision. 
Nothing more. The bill does not propose to change EPA's 
practice which has been in place. This is not an attack on the 
Clean Air Act.
    Now included in your package are copies of the larger 
charts that I have here. These charts come from DOT material 
and list the countless requirements and steps which the 
regulations overturned by the court required. Those charts 
reflect what my bill does. No new charts need to be made. The 
executive director of the Southern California Association of 
Governments will be talking about these with some good advice. 
The road builders also have suggestions for statutory changes 
in conformity. We need to look at the entire conformity 
process. I want to work with my colleagues to do that.
    Just in closing, let me point out that the 15 building 
trades unions and the AFL-CIO have endorsed S. 1053 because 
``Not only are thousands of good paying construction jobs at 
stake, but the safety of the traveling public and future 
economic growth may be adversely effected if this decision is 
allowed to stand.'' And we have quotes from other organizations 
supporting this measure and this effort.
    I look forward to working with you, Mr. Chairman, the 
ranking member, and my colleagues to find a solution to the 
problem that is bringing vitally needed highway construction 
projects to a halt across the country. Thank you.
    [The prepared statement, letters, and material submitted 
for the record by Senator Bond follow:]
 Statement of Hon. Christopher S. Bond, U.S. Senator from the State of 
                                Missouri
    Mr. Chairman--Thank you for having this hearing. My staff and I put 
together the packet that is now being handed out to the committee 
members. The information includes a copy of Senate Bill 1053, support 
letters from the labor unions, the Metropolitan Planning Organizations, 
and the American Association of State Highway and Transportation 
Officials, etc., charts explaining the conformity process prior to the 
March 2 court decision, and some additional information for each of 
you.
    On May 14, I introduced S. 1053, a copy of which you now have. I 
introduced this bill because the court's decision is unacceptable. It 
is unacceptable because it delays vitally important highway projects 
that are needed in areas across the country. These projects will save 
lives, reduce congestion, and these projects have already gone through 
the NEPA process which requires an air quality analysis.
    My bill is simple. The ONLY thing it does is give EPA and DOT the 
flexibility back that they lost as a result of a March 2 court 
decision.
    In 1996, EPA received more than 50 comments from interest groups--
including MPOs, state and local air quality and transportation 
officials, and environmentalists, including the Environmental Defense 
Fund on the regulations affected by the court decision.
    Mr. Chairman, I have read the testimony provided by Mr. Replogle of 
the Environmental Defense Fund. His first two sentences are, ``A vital 
provision of the Clean Air Act is today under attack. Senate Bill 1053 
would reopen a loophole to let those who profit from building roads at 
taxpayer expense avoid accountability for the effects of their projects 
on public health and air quality.''
    These comments are unfounded and outrageous. EPA--which promulgated 
the rule we seek to reinstate--said about the rule: ``While these 
changes clarify the rule and ins some cases offer increased 
flexibility, they will not result in any negative change in health and 
environmental benefits. ``
    Furthermore, he doesn't understand the everyday situation in 
Missouri, specifically Kansas City. Missouri's highway fatality rate is 
above the national average. From 1992 to 1996, poor highway conditions 
contributed to the deaths of more than 5,000 people in Missouri. 
According to data from the Federal Highway Administration, more than 50 
percent of Missouri's roads are ranked poor or mediocre. Needed 
transportation improvements in the Kansas City area are delayed as a 
result of the EDF and the court decision.
    Mr. Replogle's written testimony disappoints me, but does not 
surprise me. Unfortunately, this has become standard practice for too 
many of the environmental groups. The facts are that my bill will 
simply allow the regulations that went through formal notice and public 
comment, negotiated, finalized, and implemented by the Environmental 
Protection Agency as a result of the 1990 Clean Air Act amendments to 
go forward. The same regulations that EPA defended in court! NOTHING 
MORE. My bill doesn't propose to change EPA's practice which has been 
in place for many years and was found to work! This is NOT an attack on 
the Clean Air Act.
    Included in your packets are copies of the large charts that I have 
here. These charts come from DOT material and list the countless 
requirements and steps which the regulations overturned by the courts 
required. These charts reflect what my bill does. No new charts will 
need to be made.
    The testimony of Mark Pisano, Executive Director of the Southern 
California Association of Governments says, ``. . . that since the 
process of conformity was reinforced by the 1990 Clean Air Act, we have 
found it to be a major tool in our efforts to plan transportation 
improvements while at the same time meeting the requirements of the 
Clean Air Act. It has provided us with a structured and flexible 
process that permits innovative policy making in the preparation of 
both our transportation and air quality plans.'' This is from a group 
that actually has to go through the conformity process--and work 
through with all sorts of groups on the local level.
    Mr. Pisano's testimony also lists, along with the testimony of the 
Road Builders, some changes that they believe should be made to the 
underlying statutory provision in the Clean Air Act on conformity. I 
want to review these in further detail, but several of the suggestions 
seem to make a lot of sense.
    Let me be clear, S. 1053 is not the final answer on conformity. We 
need to work on rewriting the underlying Clean Air Act conformity 
provisions. I want to work with my colleagues and do just that.
    However, we have a problem as a result of the March 2 court 
decision and the guidance that came from it. We have projects that are 
delayed and maybe halted altogether. The 15 Building Trade Unions have 
endorsed S. 1053 because ``Not only are thousands of good-paying 
construction jobs at stake, but the safety of the traveling public and 
future economic growth may be adversely affected if this decision is 
allowed to stand.'' State Transportation officials have endorsed 1053 
because they believe the guidance ``would create a safety hazard and an 
air quality `hot spot'. . .'' The National Association of Regional 
Councils and Association of Metropolitan Planning Organizations support 
S. 1053 because ``. . . no regionally significant federally funded or 
non-federally funded project can proceed regardless of how far along in 
the project development process it is.''
    Mr. Chairman, we have a problem. I hope that this hearing will lead 
to the consensus that we must provide the relief that areas across the 
country need by passing S. 1053. S. 1053 is not an attack on the 
environment or the Clean Air Act. It is a reasonable and responsible 
proposal to address the situation. My bill is an attempt to give EPA 
and DOT the legal backing to allow us to finish what we start when it 
comes to making our highways safer. In addition, I want to work with 
those here today and my colleagues in possibly reworking the underlying 
conformity provision of the Clean Air Act.
                                 ______
                                 
   What has EPA said about the conformity process prior to the court 
                               decision?
                   federal register: august 15, 1997
    1. ``Completion of the NEPA process is the step EPA has selected 
historically for grandfathering transportation projects for several 
reasons. Making a determination under NEPA is clearly an action to 
support or approve an activity, and the Clean Air Act does not allow a 
Federal agency to take such an action without a conformity 
determination. In addition, an air quality analysis is already required 
by NEPA. To require this analysis again at a later date may create 
redundancies in the transportation process and cause state and local 
resources to be used less efficiently. ``
    2. ``The conformity rule changes promulgated today result from the 
experience that EPA, the Department of Transportation (DOT), and state 
and local air and transportation officials have had with implementation 
of the rule since it was first published in November 1993. While these 
changes clarify the rule and in some cases offer increased flexibility, 
they will not result in any negative change in health and environmental 
benefits.
                   respondents' brief: june 10, 1998
    3. ``EPIC's rule reflects its rational judgment that Congress 
intended a more reasoned approach to transportation planning during 
periods in which there is no applicable SIP, that Congress intended 
that there be an attempt to balance the general pollution-reduction 
requirements of the Act with the needs of state and local planning 
organizations for certainty and finality in their transportation 
planning processes.
    4. ``EPA explained that it has always believed that there should 
only be one point in the transportation planning process at which a 
project-level conformity determination is necessary. This maintains 
stability and efficiency in the transportation planning process.










                                 ______
                                 
           Letters Sent to Senator Bond in Support of S. 1053
  American Association of State Highway and Transportation 
                                                 Officials,
                                     Washington, DC, June 22, 1999.

Hon. John H. Chafee, Chairman,
Committee on Environment and Public Works,
Dirksen Senate Office Building,
Washington, DC 20510-6175.

    Dear Mr. Chairman: We are writing to express AASHTO's support for 
S. 1053 as introduced by Senator Christopher Bond and to request that 
your Committee take timely action on this important legislation. This 
legislation would simply amend the Clean Air Act to incorporate certain 
provisions of the EPA air quality conformity regulations that were in 
effect on March I, 1999. These are provisions that were struck down or 
remanded in the March 2 decision of the U.S. Court of Appeals for the 
District of Columbia in the case of the Environmental Defense Fund v. 
EPA. These provisions are part of the transportation conformity 
regulations that EPA adopted following discussions with stakeholders, 
and subsequently defended during the EDF lawsuit.
    We believe that Senator Bond's bill provides an effective approach 
to restore the provisions involved in the March 2 decision. It would 
allow ``grandfathered'' projects that have been in development for many 
years and have met all regulatory requirements to proceed to 
construction and receive Federal funding.
    AASHTO believes that this legislation is necessary because the 
administrative approach to dealing with the March 2 Court decision as 
proposed by U.S. DOT and EPA in their respective May 7 and May 14 
guidance does not provide a workable remedy.
    AASHTO is available to testify regarding S. 1053 should you need us 
to do so. Thank you for your consideration of our request.
            Sincerely,
                                    Dan Flowers, President.
                                 ______
                                 
                  National Association of Regional Councils
                               Washington, DC 20006, June 25, 1999.

Hon. Christopher Bond,
United States Senate,
Russell Senate Office Building,
Washington, DC 20510-2503.

    Dear Senator Bond: On behalf of the Board of Directors and Members 
of the National Association of Regional Councils (NARC) and the 
Association of Metropolitan Planning Organizations (AMPO). we are 
writing to express our support of S. 1053, which amends the Section 
176(c) of the Clean Air Act to incorporate certain provisions of the 
transportation conformity regulations as hi effect on March 1, 1999. We 
applaud your leadership in addressing this very challenging and complex 
issue.
    The March 2 decision of the United States Court of Appeals for the 
District of Columbia. which overturns key provisions of the U.S. 
Environmental Protection Agency's third set of transportation 
conformity amendments, will impact all non-attainment areas. We are 
concerned with the consequences of this decision for several reasons:
      The elimination of the ``grandfathering'' provision means 
that in any nonattainment area where transportation conformity has 
lapsed, no regionally significant federally funded or non-federally 
funded project can proceed regardless of how far along in the project 
development process it is. In other words, projects can proceed only if 
actual construction has begun.
      Some areas, which had previously demonstrated conformity 
using submitted emissions budgets, will be forced to again demonstrate 
conformity of their transportation plans using the Build/No Build test 
In developing the third set of conformity regulation amendments, there 
was general consensus that the Build/No Build test was flawed and 
should be replaced with adherence to mobile source emissions budgets.
      Some of the flexibility granted through the three sets of 
conformity regulation amendments will be lost.
    If enacted, S. 1053 will codify into law the transportation 
conformity regulations established by the U.S. EPA prior to the March 2 
Circuit Court decision and will restore stability and flexibility to a 
complex and rigid set of regulations. We believe that this is essential 
to ensuring consistency and continuity to the transportation plan and 
program development process.
    We also want to call to your attention to another systemic issue 
related to the transportation conformity regulations. More 
specifically, the air quality ``mismatch'' issue. The current 
conformity rule requires a demonstration of conformity for the entire 
20 years of the long range transportation plan. However, this extends 
at least 10 years beyond the horizon year for the attainment 
demonstration and/or maintenance plan included in the State 
Implementation Plan (SIP). Thus, the SIP's attainment or maintenance 
year budgets act as a cap for future mobile source emissions, denying 
policy officials the ability to negotiate tradeoffs among stationary 
area and mobile source emissions.
    We have attached a copy of our position paper titled 
``Transportation Air Quality Conformity--Timeframe Mismatch'' and a 
proposal for resolving this problem, which includes suggested 
legislative language to amend the MPO planning provisions in both the 
highway and transit law. While we understand the difficulties of re-
opening this issue, we respectfully urge you to continue your 
leadership on the issue of transportation conformity and to begin the 
examination of the mismatch of time horizons issue.
    Once again, we want to express our support of S. 1053 and would 
lilac to thank clink for velour efforts to restore continuity to the 
Federal air quality program.
            Sincerely,
                                     John Selph, President,
                         National Association of Regional Councils.

                                     Brian Mills, Chairman,
                Association of Metropolitan Planning Organizations.
                                 ______
                                 
           Association of Metropolitan Planning Organizations
        transportation air quality conformity timeframe mismatch
    Issue: Inconsistent timeframe requirements for SIP documents and 
transportation plans and programs are creating situations where 
conformity may be difficult to achieve. This is because control 
measures, which are beyond the control of transportation officials--but 
which are critical for reducing mobile source emissions--are not in 
place for years beyond the SIP timeframe. AMPO supports a more 
integrated process in which transportation conformity is tied directly 
to state implementation plan dates.
    Discussion: Metropolitan Planning Organizations (MPOs), which are 
designated to conduct transportation planning and programming in the 
nation's metropolitan areas, are responsible for demonstrating that 
transportation plans and programs conform to air quality goals and 
strategies. The 1990 enactment of amendments to the Clean Air Act 
explicitly defines ``transportation conformity,'' and the U.S. 
Environmental Protection Agency (EPA) subsequently issued extensive, 
detailed regulations outlining the conformity process. Despite 8 years 
of experience and three sets of modifications to the conformity 
regulation, some technical aspects of the conformity analysis process 
Still remain problematic. One of the most difficult of the technical 
issues relates to Incompatible time horizons for the State 
Implementation Plan (SIP) and the Long Range Transportation Plan.
    Under the existing regulations, there is a mismatch between SIP 
timeframes (or deadlines) for attainment or maintenance, and the 
horizon for Long Range Transportation Plans. The Long Range 
Transportation Plan must focus on a 20-year future horizon, while the 
SIP, including its strategies and emissions budgets do not extend that 
far into the future. Under the Clean Air Act, the SIP must have a time 
horizon that corresponds to the non-attainment area's attainment date, 
which is always less than 20 year. Moreover, once attainment is 
reached, the Clean Air Act requires a maintenance SIP, which must have 
a 10-year horizon. The result of this mismatch is that for the purpose 
of conforming the Long Range Transportation Plans, the Transportation 
emissions budget for the years beyond the SIP horizons is a presumed 
projection rather than the result of a negotiated agreement that 
considers tradeoffs between mobile and non-mobile source sectors. This 
disjointed process prevents integrated planning to achieve both 
transportation and air quality goals. It also results in the 
transportation agencies essentially becoming the long term air quality 
planning organization, but without the authority to implement the types 
of programs (e.g., I/M, RFG) needed to substantially reduce mobile 
source emissions.
    Recommendation: In determining conformity of the Long Range 
Transportation Plan, the plan should demonstrate consistency with the 
operative SIP emissions budget out to the time horizon for the SIP, 
unless or until the adoption of a negotiated strategy that considers 
mobile and non-mobile tradeoffs for the out-years that extend beyond 
the timeframe of any applicable attainment or maintenance plan. The 
process is necessary to achieve an integrated transportation and air 
quality planning process as required by the Clean Air Act.
                               conformity
Discussion
    Metropolitan Planning Organizations, which are designated to 
conduct transportation planning and programming in the Nation's 
metropolitan areas, are responsible for demonstrating that 
transportation plans and programs conform to air quality goals and 
strategies. The 1990 enactment of amendments to the Clean Air Act 
explicitly defines ``transportation conformity,'' and the U.S. 
Environmental Protection Agency (EPA) subsequently issued extensive, 
detailed regulations outlining the conformity process. Despite 8 years 
of experience and three sets of modifications to the conformity 
regulation, some technical aspects of the conformity analysis process 
still remain problematic. One of the most difficult of the technical 
issues relates to incompatible time horizons for the State 
Implementation Plan (SIP) and the Long Range Transportation Plan.
    Under the existing regulations, there is a mismatch between SIP 
timeframes (or deadlines) for attainment or maintenance, and the 
horizon for Long Range Transportation Plans. The Long Range 
Transportation Plan must focus on a 20-year future horizon, while the 
SIP, including its strategies and emission budgets do not extend that 
far into the future. The result of this mismatch is that for the 
purpose of conforming the Long Range Transportation Plans, the 
transportation emissions budget for the years beyond the SIP horizons 
is a presumed projection rather than the result of a negotiated 
agreement that considers tradeoffs between mobile and non-mobile source 
sectors.
Proposal
    In determining conformity of the Long Range Transportation Plan, 
the plan should demonstrate consistency with the operative SIP 
emissions budget, unless or until the adoption of a negotiated strategy 
which considers mobile and non-mobile tradeoffs for the out-years which 
extend beyond the timeframe of any applicable attainment or maintenance 
plan.
    We believe statutory changes may be necessary to address these 
problems.
Legislative Language
    Amend Section 1 34(i) by adding a sentence at the end of subsection 
(2)(A) as follows:

    ``For the purpose of determining conformity under Section 176 (c) 
    of the Clean Air Act, only the impact of that part of the long 
    range transportation plan that is coincidental with the term of the 
    applicable rate of progress, attainment or maintenance state 
    implementation plan for the non-attainment area shall be evaluated, 
    except that the entire twenty-year period of the transportation 
    plan shall be the term for evaluating plan conformity if such 
    applicable state implementation plan provides for emission 
    reductions during such twenty-year period from both mobile and non-
    mobile sources, which together meet or sustain Federal air quality 
    standards for the non-attainment area during such twenty-year 
    period.''
                                 ______
                                 
                           American Automobile Association,
                            Washington, DC 20005-6001, July 8, 1999

Hon. Christopher Bond,
United States Senate,
Washington, DC 20510

    Dear Senator Bond: AAA is pleased to support your legislation S. 
1053, which addresses the March 2 Federal appeals court decision in 
Environmental Defense Fund v. U.S. Environmental Protection Agency 
(EPA). By codifying the so-called grandfather clause, S. 1053 will 
prevent any unreasonable disruptions in highway safety funding, and AAA 
appreciates your leadership on this important issue.
    AAA is concerned that the court decision jeopardizes public health 
and safety. The grandfather provision was developed by the EPA, in 
conjunction with the Department of Transportation (DOT), to allow 
highway projects to proceed if they have been approved as part of an 
earlier demonstration of conformity with clean air standards. In 
particular, this decision has an immediate and significant impact on 
the Atlanta area, which had some 60 projects operating under the 
grandfather provision, alone.
    At the same time, the court decision yields similar safety 
repercussions for important highway projects across the nation. It is 
our understanding that there could be up to one dozen areas in the 
country facing a lapse in conformity. Road conditions are a factor in 
an estimated 30 percent of traffic fatalities. Highway improvements 
such as wider lanes and shoulders will not only reduce congestion, but 
will reduce traffic fatalities. Your legislation is a vital step toward 
correcting this situation.
    AAA is a not-for-profit federation with a membership of 42 million. 
AAA strongly believes that local officials need the ability and 
regulatory stability to make informed decisions in the best interests 
of their region. Without the grandfather provision, local authorities 
will have their hands tied in the face of growing congestion and safety 
concerns.
    As this issue receives further consideration in the Senate, AAA 
looks forward to working with you to develop positive solutions to 
highway traffic safety issues. Please do not hesitate to call if AAA 
can be of assistance in this matter.
            Sincerely,
                                          James L. Kolstad.
                                 ______
                                 
   Associated General Contractors of America--Basic Trades 
                                                 Committee,
                                                       July 2, 1999

Hon. Christopher Bond,
United States Senate,
Russell Senate Office Building,
Washington, DC 20510.

    Dear Senator Bond: The Associated General Contractors of America-
Basic Trades Committee is a joint labor management committee made up of 
the nation's leading union-sector general contractors and the general 
presidents of the seven basic trade unions. Our mission is to improve 
labor-management communication and cooperation to advance the interests 
of the construction industry as a whole.
    The Committee urges you to support S. 1053 and H.R. 1876, 
legislation that would reinstate EPA's grandfather clause. The 
grandfather clause allowed projects in attainment of clean air 
standards to go forward under new models.
    On March 2, 1999, the Environmental Defense Fund (EDF) successfully 
sued the Environmental Protection Agency (EPA) to eliminate EPA's 
regulation. EPA chose not to appeal, and subsequent guidance has been 
issued by Federal Highway Administration and EPA that details when and 
how projects can go forward. This new guidance will disrupt areas that 
have a ``conformity lapse,'' meaning a timely state implementation plan 
has not been approved.
    The Committee supports the goals of the Clean Air Act. Moreover, 
the success of the Act is demonstrated by the fact that our nation's 
air is getting cleaner. Tailpipe emissions have decreased 95 percent 
since 1970. The automobile industry is entering Phase II of improving 
the tailpipe technology for the vehicles on our roads. Technology has 
largely eliminated the culprits of clean air. Congestion, however, is 
increasingly becoming a prominent clean air concern. Building adequate 
roads to relieve bottlenecks will do more to improve the air around 
congested cities than sanctioning highway funds.
    Passing S. 1053 and H.R. 1876 simply reinstates EPA's own 
regulation that it did not vigorously defend. In many cases, the EPA 
has approved these previously grandfathered road projects. The lawsuits 
represent an extreme environmental view and second-guessing from 
outside the process. They do not have an interest in relieving 
congestion, improving motorist safety, and creating jobs.
    Please co-sponsor S. 1053 and H.R. 1876.
            Sincerely,
Frank Hanley, Co-Chairman, Basic Trades, General President,
                                Int'l Union of Operating Engineers.

                            Thomas T. Rollers, Co-Chairman,
                         Associated General Contractors of America.
                                 ______
                                 
                 Associated General Contractors of America,
                              Washington, DC. 20006, June 30, 1999.

Hon. Christopher ``Kit'' Bond,
Russell Senate Office Building,
Washington, DC 20510,

    Dear Senator Bond: The Associated General Contractors of America 
(AGC) supports S. 1053 and appreciates your strong leadership in this 
critical matter. Your legislation will allow much needed highway safety 
improvements to go forward.
    AGC supports the goals of the Clean Air Act. Moreover, the success 
of the Act is demonstrated by the fact that our nation's air is getting 
cleaner. Tailpipe emissions have decreased 95 percent since 1970. The 
automobile industry is entering Phase II of improving the tailpipe 
technology for the vehicles on our roads. Technology has largely 
eliminated the culprits of clean air. Increasingly, congestion is 
becoming a prominent clean air concern. Building adequate roads to 
relieve bottlenecks will do more to improve the air around congested 
cities than any other action.
    Your legislation simply reinstates EPA's own regulation. EPA, FHWA 
as well as state and local governments have approved these road 
projects in previous state implementation plans. The lawsuits that have 
blocked these highway projects represent an extreme environmental view 
and second-guessing national environmental groups. They do not have an 
interest in relieving congestion, improving motorist safety, and 
creating jobs.
    Thank you for working to improve our nation's highway safety.
            Sincerely,
       Jeffrey D. Shoaf, Executive Director, Congressional 
                                                 Relations.
                                 ______
                                 
                           American Highway Users Alliance,
                                Washington, DC 20036, June 30, 1999

Hon. Kit Bond,
United States Senate,
Washington, DC 20510.

    Dear Senator Bond: Last month, you introduced S. 1053, a bill to 
codify Environmental Protection Agency (EPA) rules that were struck 
down or remanded in a recent court decision. Without swift 
congressional action reinstating the EPA rules, hundreds of important 
highway projects projects that will save lives, prevent injures and 
reduce congestion--could be halted across America. The American Highway 
Users Alliance, which represents over 40 million motorists, truckers 
and businesses. strongly Supports your legislation and respectfully 
urges the Congress to approve S. 1053 promptly.
    In Environmental Defense Fund v. Environmental Protection Agency, 
the U.S. Court of Appeals for the District of Columbia struck down EPA 
rules that allowed states to proceed with approved highway projects 
that had previously conformed to national air quality standards even 
though circumstances, such as new Federal regulations, had later 
changed that state's air quality rating. As a result of the court's 
decision, previously approved highway projects in at least 10 regions 
have been stopped.
    Because most of He affected projects are aimed primarily at 
improving safety or relieving congestion, further delays will mean more 
traffic fatalities and injuries and worsened congestion. Ironically, 
the air quality in those areas will suffer because cars emit more 
pollutants idling in traffic than when moving.
    More regions of the country will be adversely Impacted with each 
passing week. Congressional action is needed now The Highway Users 
greatly appreciates your leadership on this important issue.
            Sincerely,
                          Wlliam D. Fay, President and CEO.
                                 ______
                                 
     American Road and Transportation Builders Association,
                                   Washington, DC 20001, June 1999.

    Dear Senator: If a proposed highway improvement project has passed 
every environmental test required by the Federal Government once--a 
necessary yet very expensive process that takes many months, even 
years, to complete--should it have to go through the same process over 
and over again? That's the key question raised by a March 2 Federal 
court decision in a suit brought by the Environmental Defense Fund 
(EDF) against a common sense rule implemented several years ago by the 
Clinton Administration's Environmental Protection Agency (EPA).
    The transportation construction industry believes once should be 
enough. The EDF, not surprisingly, doesn't. Their agenda on highway 
projects can be summed up in one word: delay. The problem is that 
delaying highway improvements hurts and kills people.
    According to U.S. Department of Transportation research, poor road 
conditions or obsolete road and bridge alignments are a factor in 
12,000 highway-related deaths each year. That's four times the number 
of Americans killed in accidental fires and a third more than die 
annually of asthma and bronchitis combined. How many more die 
needlessly because congested road conditions impede emergency vehicles? 
Those are public health issues the EDF chooses to ignore.
    Regrettably, two of three judges on the court panel agreed with EDF 
that the 1990 Clean Air Act (CAA) transportation conformity provisions 
are so rigid that under a number of circumstances, proposed road 
projects can be put back into the expensive and complex environmental 
approval process over and over again. The conformity law ties road 
project approval to regional and state attainment of Federal air 
quality goals. Conformity sets up a ``Catch-22'' situation that the EDF 
and its no-growth allies use routinely to stop and delay needed road 
improvements.
    Their approach, of course, not only has public health consequences, 
but also suggests a disturbing lack of concern for American citizens 
and businesses who are being forced to waste millions of hours and 
billions of dollars each year in unnecessary traffic congestion.
    For these reasons, we urge you to support S. 1053, legislation 
introduced by Senator Kit Bond (R-MO). S. 1053 simply restores the 
EPA's common sense rule that was thrown out in the March 2,1999, EDF 
vs. EPA decision.
    In 1997, when EPA proposed the rule in question, it said: ``The 
conformity rule changes promulgated today result from the experience 
that the EPA, the Department of Transportation, and state and local air 
and transportation officials have had with implementation of the rule 
since it was first published in November 1993. While these changes 
clarify the rule and in some cases offer increased flexibility. They 
will not result in any negative change in health and environmental 
benefits.''
    S. 1053 reinstates the rules that localities, regions, states and 
the Clinton Administration's environment and transportation teams 
negotiated, finalized, and practiced with success. We urge to sponsor 
this ``common sense legislation.
            Sincerely,
                           T. Peter Ruane, President & CEO.
                                 ______
                                 
                                 
                                 
                                 
                                 
       Statement of the Associated General Contractors of America
Background
    The Associated General Contractors of America (AGC) supports S. 
1053, legislation to reinstate Environmental Protection Agency's (EPA) 
``grandfather clause.'' It is a targeted amendment to the Clean Air Act 
to allow for the full implementation of the Transportation Equity Act 
for the 21st Century (TEA-21). This change is necessary in light of 
judicial action striking down the ``grandfather clause.'' The 
``grandfather clause'' assured that each transportation project 
received an air quality assessment once. Without EPA's ``grandfather 
clause,'' there is uncertainty in transportation and construction 
planning.
    On March 2, 1999 the US District Court of Appeals for the DC 
Circuit nullified the Environmental Protection Agency's ``grandfather 
clause.'' (Environmental Defense Fund (EDF) v. EPA, USCADC No. 97-
1637). The ``grandfather clause'' had permitted highway projects that 
were included in state transportation plans that met clean air 
conformity standards to go forward. If the project was later included 
in a nonconforming state transportation plan, then the project was 
``grandfathered'' and allowed to proceed. EPA developed this regulation 
to allow these projects to go forward in the spirit of ``flexibility.'' 
The Court held that this ``flexibility'' did not exist under the Clean 
Air Act. The court called on Congress to amend the act saying, ``If 
this legislative scheme is too onerous, it is up to Congress to provide 
relief, not this court.'' On March 16, 1999, EPA announced they would 
not appeal the case.
    AGC calls on Congress today to amend the Clean Air Act as requested 
by the courts and consistent with the EPA's statements in support of 
the ``grandfather clause.''
    Over 8,274 AGC members are potentially impacted by the March 2, 
1999 US District Court ruling in EDF v. EPA. Twelve areas of the 
country face a conformity lapse of which many of our members own and 
operate businesses. These include 256 companies in Maine; 156 in 
Connecticut; 685 companies in Pennsylvania; 641 in Georgia; 915 in 
Kentucky; 936 in Louisiana; 580 in Utah; 654 in Colorado; 451 in 
Nevada; 308 in Arizona; 1,658 in California; and 1,034 in Missouri.
How ``grandfather clause'' Impacts Construction Projects and Disrupts 
        the Implementation of TEA-21
    The ``grandfather clause'' provided certainty and predictability to 
building essential highway and bridge construction projects. Last year, 
every member of this committee supported the goals of the 
Transportation Equity Act for the 21st Century (TEA-21). TEA-21 made a 
commitment to investing in America's transportation infrastructure. In 
the construction industry it is imperative that we have the equipment, 
the manpower and a certain and predictable schedule to build these 
needed improvements. By eliminating the ``grandfather clause,'' the 
goals of TEA-21 will not be fully realized as important construction 
projects will be halted or continually delayed.
Clean Air Act Improving Air Quality
    The Clean Air Act (CAA) has been successful in improving our 
nation's air quality. Tailpipe emissions have decreased by 95 percent 
since the enactment of the Clean Air Act in 1970. Both the CAA and TEA-
2 1 require that air quality be monitored. Air quality is a deciding 
factor when road projects are considered. TEA-21 continues the planning 
processes of the State Transportation Improvement Plan (STIP) and the 
Transportation Improvement Program (TIP), requiring states to develop 
their transportation construction plans over three to 20 year periods. 
Every highway and transit project is part of a long-range statewide 
plan.
The Guidance and Regulations Are Not the Answer
    The guidance issued by the Federal Highway Administration (June 18, 
1999) does not provide certainty to the states. Under the guidance, 
project phases of segmented projects that had not been started before 
the ``grandfather clause'' was vacated cannot proceed. Phased projects 
that have already begun can create serious highway safety problems. For 
example, a two lane highway being expanded to a four lane highway that 
was let in three phases could create a situation where the middle 
remains two lanes because that portion of the project cannot be 
completed. This would cause traffic to move from four lanes to two-
lanes back to four lanes causing serious congestion and safety 
problems. EPA's regulations will be proposed by the end of this year. 
Even then, these regulations could be subject to another lawsuit. 
Codifying the ``grandfather clause'' creates certainty for local 
entities and stops this ongoing legal battle regarding the 
``grandfather clause.''
Legislative History of the Clean Air Act Amendments of 1990
    The Clean Air Act was last reauthorized in 1990. Congressional 
Quarterly described the reauthorization in the following words, ``after 
more than a decade of stalemate over the nation's clean air laws, the 
senate on October 27 cleared sweeping legislation to impose stricter 
Federal standards on urban smog, automobile exhaust, toxic air 
pollution and acid rain. . . it capped nearly two full years of work. . 
. previous efforts had been bottled up since at least 1981.'' Now 
remember, the rewrite of this legislation had been overdue since 1982. 
It was not until President Bush offered his own proposal in 1989 that 
the process was able to finish. In short, without Presidential 
leadership the bill would not have passed. A major rewrite of the Clean 
Air Act does not seem possible in the current political climate.
The Benefits From Passing S. 1053
    The benefits from passing S. 1053 are a predictable implementation 
schedule for construction projects. It will eliminate the threat of 
litigation either against the EPA or the states on highway projects 
that have already received Federal approval. There will be no wholesale 
assault on the environment from the passage of S. 1053.
    The simple truth is that Maine; Connecticut; Pennsylvania; Georgia; 
Kentucky; Louisiana; Utah; Colorado; Nevada; Arizona; California; and 
Missouri will be able to breathe a little easier. They will not have to 
worry about projects being halted at partial completion or leaving a 
necessary highway project on the drawing board because some other 
element of a state's plan pushes the plan out of conformity.
    Even EPA supports the ``grandfather clause'' as codified by S. 
1053.

    ``EPA has always believed that there should only be one point in 
    the transportation planning process at which a project-level 
    conformity determination is necessary. This maintains stability and 
    efficiency in the transportation planning process.
    Completion of the NEPA process is the step EPA has selected 
    historically for grandfathering transportation projects for several 
    reasons. Making a determination under NEPA is clearly an action to 
    support or approve an activity, and the Clean Air Act does not 
    allow a Federal agency to take such an action without a conformity 
    determination. In addition, an air quality analysis is already 
    required by NEPA. To require this analysis again at a later date 
    may create redundancies in the transportation process and cause 
    state and local resources to be used less efficiently.''

               EPA Comments In the Federal Register August 15, 1997

    Judge Williams agreed with this in his dissent in EDF v. EPA 
stating, ``The statutory test permits EPA's view, and the agency's 
interpretation is reasonable in light of its goal of protecting 
localities from disruption caused by conformity lapses, which appear 
frequently to be beyond local control.''
    The only downside risk of moving S. 1053 is that you will return 
the country to the days preceding March 2, 1999, prior to the court 
ruling in EDF v. EPA.
    Please take this opportunity to pass this legislation. Return some 
reliability to the transportation planning and construction process 
before trying to tackle the mammoth chore of updating the Clean Air 
Act.
    Attached is a summary of lawsuits challenging EPA actions and other 
lawsuits attempting to halt highway safety projects in several states.
                                 ______
                                 
                     Environmental Lawsuits Summary
                          updated july 12,1999
Environmental Defense Fund v. EPA
Decided: March 2, 1999
United States Court of Appeals for the District of Columbia

    Holding: Nullifies the Environmental Protection Agency's 
``grandfather clause.'' The ``grandfather clause'' had allowed highway 
projects that were included in state transportation plans that did not 
meet clean air conformity standards to go forward. If the project met 
previous clean air models, then the project was ``grandfathered'' into 
the current clean air models. EPA claimed that would allow these 
projects to go forward in the spirit of flexibility. The Court held 
that this flexibility did not exist according to the Clean Air Act. 
``If this legislative scheme is too onerous, it is up to Congress to 
provide relief, not this court.'' On March 16, 1999, EPA announced they 
would not appeal the case.

Sierra Club v. Browner
Filed: November 1998
United States Court of Appeals for the District of Columbia

    Pleading: The Sierra Club claims EPA Administrator Carol Browner 
did not have discretionary authority to allow Missouri to go forward 
with road building since St. Louis was not in attainment with the ozone 
standard. The Sierra Club is asking that the court instruct the Federal 
Government to withhold Missouri's entire Federal highway apportionment 
until the city reaches conformity (complies with the ozone standard.) 
AGC of Missouri, AGC of St. Louis, and Heavy Contractors of Kansas City 
have filed as interveners to the case.

Sierra Club v. EPA
Filed: March 1999
United States Court of Appeals for the 9th District

    Pleading: On March 12, 1999 the EPA published a final rule in the 
Federal Register stating Ada County reached particulate matter 
attainment. On March 15, 1999 the Sierra Club asked the court to vacate 
Ada County, Idaho's attainment status for particulate matter. The 
Sierra Club is asking the court to rule that EPA's attainment 
designation was ``not in accordance with law or arbitrary and 
capricious.'' Prior to this attainment finding, Ada County's road 
program was on hold. Current estimates are that $21 million of roadwork 
is on hold with $10 million affected annually for the next few years. 
AGC Idaho Branch has been given permission to submit an intervener 
brief with the Ada Planning Association (the city's metropolitan 
planning organization).

Sierra Club v. U.S. Army Corps of Engineers
Filed: March 1999
U.S. District Court in Jacksonville

    Pleading: Permits for a 41.6-mile toll road are being challenged by 
the Sierra Club. The Suncoast Highway stretches across west central 
Florida. The Sierra Club believes the Corps of Engineers' environmental 
impact statement required by the National Environmental Policy Act 
(NEPA) does not adequately address Clean Water Act, Clean Air Act, and 
Endangered Species Act requirements.

Georgians for Transportation Alternatives v. Slater
Decided: June 1999
U.S. District Court for the Northern District of Georgia

    As expected, this case settled June 1999. The key issue in the case 
dealt with the use of the ``grandfather clause'' in the Atlanta area. 
The case was essentially decided when the EDF decision vacated the 
``grandfather clause.'' After this decision, the outstanding issues 
included environmental justice claims and complaints about the Atlanta 
area transportation planning process. The settlement authorizes a study 
to be conducted focusing on how transportation projects affect minority 
communities.

American Trucking Association v. Environmental Protection Agency
Decided: May 1999
United States Court of Appeals for the District of Columbia

    The court vacated the Environmental Protection Agency's (EPA) 
rulemaking on particulate matter and ozone under the National Ambient 
Air Quality Standards (NAAQS). In a strongly worded decision, the Court 
stated that EPA promulgated the ozone regulations in an 
``unconstitutional delegation of legislative power.'' Regarding 
particulate matter (PM), the Court stated that the EPA's setting of 
PM10 was ``arbitrary and capricious.'' In a later decision, 
the Court allowed the PM2.5 standard to remain in effect, 
but left the door open to another legal challenge. EPA has petitioned 
for a rehearing and failing that will appeal to the Supreme Court.

Michigan v. EPA
Decided: June 1999
United States Court of Appeals for the District of Columbia

    The Court issued a stay to the September state implementation plan 
(SIP) call that mandated twenty-two states submit plans to reduce 
nitrogen oxide (NOx) emissions to the EPA. EPA contends that NOx 
emissions emanating from coal fired electricity plants and other 
sources in the mid-west cause an ozone problem in the northeast. The 
Court delayed the September deadline for these state plans 
indefinitely. Michigan v. EPA asked the court to overturn the rule as 
scientifically unsupportable.
    Senator Chafee. Senator Lautenberg?

        OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, 
           U.S. SENATOR FROM THE STATE OF NEW JERSEY

    Senator Lautenberg. Thanks, Mr. Chairman. Again, I add my 
compliments to you for holding a hearing on this topic.
    I think we run a serious risk in trying to balance air 
quality standards with transportation needs. I think there is a 
risk. A major concern of mine is that the Senate has been 
finding ways to relieve congestion by investing in 
transportation projects. However, we do not know necessarily 
what the outcome is going to be in terms of quality of air. I 
think there is a challenge that has to be answered.
    Too much time is spent, obviously, in traffic commuting to 
work. In the past decade alone, traffic has increased by 30 
percent in metropolitan areas; 10 years. The number of cars on 
the road is expected to increase by 50 percent over the next 
decade. It is an awesome prospect. In my home State of New 
Jersey, commuters waste a full 40-hour workweek sitting in 
traffic. Across the country, traffic gridlock cost nearly $50 
billion a year in lost time and wasted fuel.
    But there is something else at stake here, and that is our 
air quality. The air we breath is about as fundamental an issue 
as we ever face in Congress. In New Jersey we have a serious 
problem with air pollution. Poor air quality affects the health 
and safety of everyone, even those who do not drive. And it is 
a financial issue as well. More pollution sends more people to 
the emergency room, which means that all of us wind up paying 
increased health costs.
    What we need to remember here is that we have to challenge 
new thoughts as to whether or not it makes sense to create a 
transportation plan if it adds to the pollution in a State or 
region already with a conformity lapse. We have got to work 
together. And I commend Senator Bond for trying to work out the 
problem that we have with stalled projects. On the other hand, 
I think we have to make sure that there is compatibility 
between expanded highways and clean air. Simply put, new roads 
without a concern for improved air quality is a double 
negative. It fouls the air and creates perhaps even more 
congestion.
    Some of the facts from the University of California study 
tell us that for every 1 percent increase in lane miles, we 
have generated a 0.9 percent increase in traffic within 5 
years. So we can conclude that new roads do not always ease 
congestion. We need to make sure that we are not abandoning air 
quality standards before we start grandfathering transportation 
projects. I would like us to work together at the local, State, 
Federal levels to develop plans and projects that look at a 
range of transportation alternatives, not simply the projects 
that might impair our air quality.
    I appreciate the fact that we have qualified witnesses here 
with us today, and I look forward to hearing from all of them, 
Mr. Chairman. Thank you.
    Senator Chafee. Thank you very much.
    We will now proceed with the witnesses. Mr. Robert 
Perciasepe, Assistant Administrator for the Office of Air and 
Radiation, Environmental Protection Agency.
    Mr. Administrator, go to it.

STATEMENT OF ROBERT PERCIASEPE, ASSISTANT ADMINISTRATOR, OFFICE 
     OF AIR AND RADIATION, ENVIRONMENTAL PROTECTION AGENCY

    Mr. Perciasepe. Thank you, Mr. Chairman and members of the 
committee, for the invitation today. I am going to use these 
charts very quickly to keep me on track here. And I apologize 
to the folks behind, we will take them down as soon as we are 
done. I think we have handed them out to all of you. And I 
would ask, Mr. Chairman, that my full statement, since I am 
just going to summarize here, be entered into the record.
    I want to put a point on some of the issues that were 
already brought up in the opening statements about the air 
quality problem. We have 38 areas in the United States that 
still do not meet the 1-hour ozone standard, representing 
almost 100 million people. I think in many of these urban areas 
the mobile source emissions are around 50 percent; the national 
average is probably in the 30's, but in some of the urban areas 
it is around 50, some even higher, like perhaps Atlanta or 
Charlotte. So this is an important component of the air quality 
planning process.
    Another way to mention what Senator Lautenberg said in his 
opening statement, in 1970, when the original Clean Air Act was 
being considered, the American motorist drove about a trillion 
miles a year. Today, 30 years later, the American motorist 
drives 2 trillion miles a year, and that is due to more 
distance per trip and also more vehicles. So, clearly, it is an 
issue that has to be addressed.
    The purpose of conformity, and the reason I think it was in 
the Clean Air Act in 1977 and then enhanced, as you said, Mr. 
Chairman, in 1990, is to consider the air quality impacts of 
transportation improvements before they are built as opposed to 
chasing our tail both in the transportation planning world and 
in the air quality planning world. Common sense, good 
government kinds of thoughts. Transportation and air quality 
planning is coordinated. And this works both ways. It provides 
the input to the transportation planning process that is 
needed, and it also provides a way for the air quality planning 
to take into account what happens in the transportation sector.
    It works quite simply. And I understand all the issues that 
we have talked about and that we will get into in the question 
and answer. But in its simplest operation, the air quality plan 
sets a target for the emissions from the transportation and 
mobile sector, but they do it by coordinating the planning 
processes. I have to say that is also further coordinated in 
the air quality planning process by what controls would be 
placed on other sources, like utilities, or industrial sources, 
or other area sources in the metropolitan area. So there is a 
balancing act that is made both in the transportation planning 
and in the air quality planning to come up with the answer. And 
then once the answer is derived through the local planning and 
the State planning, the system is supposed to stay within that 
emissions budget.
    One of the things that I think we are talking about here 
and is the focus I think of a lot of the questions and answers 
that we will get into is, what happens if this does not work? 
Where this works everybody is happy. What happens when it does 
not work? And how many places has it not worked, and why 
doesn't it work, and how can we fix it? Transportation projects 
are not delayed if they are in these plans and the plans 
conform to each other. No problem. It is when they do not work, 
when these plans are not coordinated that we have the problem. 
The question is what do we need to do to make that happen so 
that we do not have this problem.
    Just quickly, some of the things that have been going on 
around the country related to conformity, and I think you will 
have some testimony on some of this during the course of the 
morning. In Atlanta, it has spurred quite a debate on growth 
and traffic and air quality. New institutions have been 
created, and the private sector is getting involved in solving 
the problem. I could talk about Bell South trying to 
consolidate its employees in a way that reduces air quality 
impacts, the Georgia Regional Transit Authority that has been 
created, and a lot of activity there.
    Charlotte has prompted a new transit plan. I was just in 
Charlotte a couple of weeks ago with the mayor and the business 
community, and they are keenly aware and way ahead of the curve 
now on how they deal with the emerging issue. They are growing 
at twice the national rate in Charlotte and they are committed 
to staying ahead of the problem, and they are doing a very good 
job.
    In Denver, it has stimulated a very large debate about what 
should be in the air plan, what should be the transportation 
growth, and Denver is in conformity. And Portland developed an 
air plan that deals with this 20-year planning horizon problem, 
which I think this is an important issue that we should discuss 
during the question and answer.
    The air quality plans, while they are targeted to get into 
attainment in a certain period of time, that attainment must be 
maintained. And so the question is how do you coordinate the 
long-term maintenance of the air quality, which does require 
looking at a long horizon, and the transportation plans which 
are looking at a 20-year horizon. This is another thing that 
makes sense and is perhaps an area where we can improve how 
these things are coordinated.
    The last thing I want to mention, because I think this is 
equally important and obviously related, is what is our 
response to this court decision. Again, I will just touch 
quickly here in the opening statement. We think that what we 
have come up with in interpreting the court's decision is very 
workable. Projects that are started can continue, projects that 
have funding commitments can continue. I want to point out, I 
know Senator Bond brought this up in his opening statement, 
safety projects are exempt from this. Congestion projects that 
are already receiving funding commitments can continue during a 
lapse period.
    Again, we are only talking about the areas where there has 
been a failure of the plans, not everywhere. Right now, we only 
have seven areas. I think the Administrator will go into some 
detail on which areas those are. But we think most of these 
seven areas that are in a lapse will be able to fix it very 
quickly.
    We think that what we have done, now that it has gone 
through court, is legally defensible. Maybe what we have done 
before wasn't, now it is. So, can we make it work. We think it 
achieves the goals that Congress set out in being 
environmentally protective. It achieves the air quality goals, 
it achieves the transportation planning goals, it pushes 
resolution of these issues so these plans do conform, and it 
manages the pipeline during a lapse in a way that you don't 
exacerbate either your long-term transportation planning or air 
quality planning.
    I am going to stop there and let my colleagues continue, 
and then I will be pleased to answer questions.
    Senator Chafee. All right.
    At this point, I would like to put a statement into the 
record from Senator Coverdell and some attached testimony that 
he has asked that I submit at this time.
    [The prepared statement of Senator Coverdell and 
accompanying material follow:]
   Statement of Hon. Paul Coverdell, U.S. Senator from the State of 
                                Georgia
                             nonconformity
    Mr. Chairman, I appreciate your willingness to hold this hearing 
and to address the issue of nonconformity with the Clean Air standards. 
I look forward to working with the Chairman and the distinguished 
members of this committee to find a solution to this dilemma. I hope 
that with the help of today's hearing and the hard work of the 
committee members, we can address this issue in an expedited fashion as 
it could have serious implications not only for Georgia and the 
Southeast, but for the entire country.
    Thank you to Jack Stevens for being here this morning to testify on 
behalf of Georgia and the Metropolitan Atlanta Rapid Transportation 
Authority (known to us Georgians as MARTA). I appreciate his dedication 
to this issue and hope that he may in some way assist the committee in 
working toward a solution.
    I believe that the commissioners of the 13 counties in Georgia 
affected by the nonattainment status of the Clean Air standards have 
unique concerns, and I request that the testimony of Jim Joyner, 
Chairman of the Henry County Board of Commissioners, be added to the 
record. The counties, which bear the brunt of this dilemma, are 
struggling to deal with public safety problems created by the delay in 
road projects.
    Again, I thank the Chairman and the members of the Committee for 
their dedication and hard work toward finding a solution to this 
problem. I am confident that we will be able to find a balance between 
future air quality and the needs of nonattainment counties to continue 
to adjust to the rapidly growing and changing Southeast.
                                 ______
                                 
  Statement of Jim L. Joyner, Chairman, Board of Commissioners, Henry 
                            County, Georgia
    Good morning Mr. Chairman and members of the Committee. My name is 
Jim Joyner, and I am Chairman of the Board of Commissioners of Henry 
County, Georgia, which is located south of Atlanta. Henry County is one 
of many counties in the Atlanta area where road construction projects 
essential for the safety and prosperity of the residents have been 
stopped as a result of the air quality ``conformity'' issues the 
Committee is discussing today. My testimony is presented on behalf of 
Henry County and four other Atlanta area counties that are experiencing 
similar problems: Cherokee, Clayton, Coweta and Fayette Counties. We 
thank you for this opportunity to address the Committee on these issues 
of critical importance to the future of our counties and their 
citizens. We believe that many other counties throughout the Nation 
currently are facing these issues as well.
    My primary purpose here today is to request the Subcommittee's 
assistance in obtaining approval to proceed with our road projects as 
soon as possible, through adoption of appropriate legislation if 
necessary. But first, let me describe some of our projects and the 
vital role they will play in protecting and enhancing the public 
health, safety and welfare of our communities.
                     the atlanta area road projects
    Approximately 44 road construction projects in 18 Atlanta area 
counties, with approved funding around $700 million, have been stopped 
as a result of conformity issues and related litigation. Many of these 
are so-called ``grandfathered'' projects, but I would like to correct a 
misconception commonly applied to these projects. They are not totally 
exempt from the air quality conformity analyses, but generally have 
been included in prior analyses or will be included in future analyses. 
The issue is not whether the long-term air quality impacts of these 
projects will be considered, but simply when and how. The Commissioners 
of Henry County and the other counties joining in this testimony have 
and will continue to support an orderly and reasonable process for 
ensuring that current road construction does not jeopardize future air 
quality.
    However, we desperately need a process that strikes a reasonable 
balance between future air quality concerns and current public safety 
hazards. Many of the Atlanta area projects that have?been stopped under 
the current rules are critical to the safety and efficiency of the 
Counties' surface transportation system. For example, one vital project 
which has been affected in Henry County is the widening of Jonesboro 
Road. This is a heavily used east/west arterial route for the area, and 
is currently a two-lane road. Average daily traffic counts taken in 
1998 ranged as high as 15,526. From June 1, 1996 to March 23, 1999 a 
total of 478 accidents were recorded on Jonesboro in Henry County, 
including a tragic accident which occurred on June 12, 1997, when a van 
for the Henry County Mental Retardation Center collided with a truck, 
resulting in the deaths of the truck driver and two disabled clients of 
the Mental Retardation Center. This project would vastly improve safety 
and reduce congestion by expanding this roadway into a four-lane road.
    A second example is the widening of Highway 34 in Coweta County, a 
series of projects which have been identified by the Coweta County 
Planning Department, Georgia DOT, the Coweta County Public Safety 
Departments (including E-911, the Fire Department, and the Sheriff's 
Department), the ambulance provider for Coweta County, and the Georgia 
State Patrol as essential projects. Correspondence discussing these 
issues is attached to my testimony. Highway 34 is currently a two lane 
road that conveys traffic between Newnan and the Shenandoah Industrial 
Park at Interstate 85 to and from the Peachtree City area in Fayette 
County. This roadway also serves as access to Interstate 85 for 
residential areas that lie East of Interstate 85. The 1998 average 
daily traffic county was 16,176 vehicles. There is a chronic problem 
with accidents on this roadway. From late 1994 through March 1999 there 
have been 615 traffic related incidents along this roadway, of which 
495 were medical calls. In addition, absent the Highway widening 
project, the response time to those living in the area from emergency 
vehicles is greatly protracted because of traffic congestion and, 
because the existing highway allows no emergency access on shoulders or 
medians, police fire and ambulance services cannot access the densely 
populated portions of the county during peak traffic flows.
    Similarly, the high volume of traffic at the interchange at the 
Interstate 75/Eagles Landing Parkway poses a threat to the citizens of 
Henry County. This section of Interstate 75 is highly congested, 
averaging over 120,000 vehicles per day. The interchange includes the 
overpass bridge which connects much of Henry County to the Henry County 
Medical Center, a County owned hospital and regional medical center. 
Due to the heavy congestion, emergency vehicles, ambulances and fire 
trucks are often caught in the traffic for as long as 20 minutes en 
route to the Medical Center, a dangerous situation which cannot be 
remedied unless the project to widen this interchange is allowed to 
proceed.
    As you can see, rapid completion of projects such as these is vital 
to the safety and security of our citizens. Further, substantial 
amounts of county funds already have been spent in reliance on 
completion of these projects. Henry County has spent approximately 
$700,000 to relocate various utilities to accommodate the roadway 
improvements associated with the State Route 20/State Route 81 project. 
In addition, the Georgia Department of Transportation has spent 
approximately $8,000,000 to date for the construction of this project. 
In reliance upon the inclusion of the Henry County projects in the 
Atlanta Regional Transportation Improvement Program (``Atlanta Regional 
TIP''), and its approval by the Georgia Department of Transportation 
(``Georgia DOT''), Henry County has entered into participation 
agreements with the Georgia DOT-to facilitate the design, right-of-way 
acquisition and construction of these projects. Pursuant to these 
agreements, Henry County has committed over $5,000,000 to these 
projects, and to date it has spent $700,000 on these projects. Neither 
the Department of Transportation nor the Georgia DOT will be 
reimbursing the county for any of these expenditures.
    In reliance upon the inclusion of these projects in the Atlanta 
Regional TIP, and its approval by Georgia DOT, Henry County has already 
begun work on several coordinating projects. These projects were 
approved by the citizens of Henry County through a referendum vote, and 
are being funded through a sales tax. These coordinating projects will 
not operate as intended if the federally funded projects are not 
completed.
    Similarly, in coordination with and reliance upon these projects, 
Coweta County has recently constructed a new fire station and ambulance 
center on Highway 34 (at Ebenezer Church Road) at a cost of 
$333,836.57. The County is also in the process of improving Ebenezer 
Church Road to allow for the new station and center at a cost to the 
County of $365, 556.46. Coweta County has entered into a Local 
Government Project Agreement for the relocation of utilities on Highway 
34, has spent $961,639 to date and will spend an estimated $243,000 
more on this utility relocation project. Also, the County has made 
plans to participate in both the continuation of the widening project 
beyond the scope of the federally funded project discussed here, and 
signalization at the improved intersections.
    These and many other similar projects are of vital necessity to 
Atlanta area counties due, in great part, to increased traffic flows on 
Interstate 75 and Interstate 85. From 1996 to 1997 alone, traffic on 
Interstate 75 increased 45 percent from the south Henry County line to 
the State Route 20 interchange. For every day that these projects are 
delayed, the excessive congestion in these areas, and the resulting 
public safety problems, simply become worse.
                      dot regulations and guidance
    Federal funding for the Atlanta area projects originally was 
approved properly under the Federal conformity regulations issued by 
EPA in 1997. After the D.C. Circuit invalidated related portions of 
those regulations in March of this year, DOT issued guidance on May 7 
that would have allowed completion of currently approved project phases 
prior to adoption of a conforming TIP that includes the projects. For 
example, if an approved project was in the design phase, that phase 
could be completed while the revised TIP was being prepared. The effect 
of this guidance on the projects in our counties was not expected to be 
extremely harsh. A new, conforming TIP for the Atlanta area was 
scheduled to be submitted this fall, and the currently approved phases 
of the existing projects could proceed to completion while the TIP was 
being prepared. It did not appear that a great deal of time would be 
lost.
    However, on June 18, 1999, the Department of Transportation issued 
new guidance requiring immediate cessation of work on all projects 
approved under the prior grandfather rules, except for projects in the 
construction phase. Federal funding for projects that the Department of 
Transportation has already approved but are in the design or right-of-
way acquisition phases will now be withheld, forcing those projects to 
stop in mid-phase pending completion of the conformity process. This 
new guidance represents a significant departure from the guidance 
issued on May 7 and will cause serious disruption of highway planning 
in major metropolitan areas throughout the Nation, including Atlanta. 
Far from being required by the court's decision, the Department's new 
guidance is not necessary to address the court's concern about an open 
ended loophole for exemption of future projects, and is inconsistent 
with the court's desire to avoid placing a retroactive burden on 
previously approved projects.
    In addition, the manner in which the new DOT guidance was issued is 
deeply troubling. To my knowledge, the Department has provided no 
public explanation of the basis for departing from the guidance issued 
in May, and did not solicit prior comment or participation from the 
public or affected state or local governments, such as the Henry County 
Board. It appears that the new guidance was hastily prepared behind 
closed doors to appease the plaintiffs in litigation, settled the same 
day the new guidance was issued, over the projects in Atlanta. In 
taking such action, the Department of Transportation appears to have 
sacrificed the interests of both Henry County and the Nation to those 
of the plaintiffs in the Atlanta litigation. Such an approach to public 
safety and commerce issues of major national importance is singularly 
inappropriate.
    We perceive no air quality benefit to be gained from immediate 
cessation of project activities involving design or right-of-way 
acquisition. On the other hand, as explained above, many of these 
projects are essential to improve safety conditions on overly crowded 
highways with high accident rates, and to ensure ready access for 
police, fire and emergency medical services to all parts of the 
affected communities. Although the Federal conformity regulations 
include a safety exemption, this exemption has been construed so 
narrowly that many essential projects do not qualify. While we support 
an orderly process for demonstration of air quality conformity, we do 
not believe that the Department of Transportation's new guidance is 
necessary to attain that objective, and the resulting delay will only 
exacerbate serious public safety problems.
                             epa activities
    One response we have heard to these concerns is that EPA intends to 
publish notices later this summer correcting conformity lapses in many 
areas, after which the projects currently stopped under the DOT 
guidance will be allowed to proceed. If that happens, it will indeed 
improve the situation in many areas. However, we have heard recently 
that EPA does not intend quickly to correct the conformity lapse in the 
Atlanta area. If that is true, we do not understand the reasons for it, 
and intend to contact EPA shortly to discuss how correction of the 
Atlanta lapse can be expedited. We are hopeful that we can work with 
EPA to correct the Atlanta lapse, and secure approval of our projects, 
as quickly as possible.
                               conclusion
    The recent delays in the Atlanta area road projects caused by the 
conformity issue do nothing to improve air quality, but will exacerbate 
serious public safety problems on overly crowded roads. We urge the 
Committee to recommend a process that strikes a more reasonable balance 
between these important public concerns. We believe that the process 
embodied in the 1997 EPA regulations, on which most of the affected 
parties had agreed following rigorous public debate, was reasonable and 
should be reinstated, through legislation to overturn the DC Circuit 
decision if necessary. Failing that, the Committee should take the 
following actions:

    1. Require DOT to abandon the June 18 guidance and return to the 
    policy issued in May, under which previously grandfathered projects 
    may be completed through the approved phase.
    2. Require EPA to take the necessary actions to correct conformity 
    lapses, including the lapse in the Atlanta area, as quickly as 
    possible.
    3. Require DOT to adopt a conformity exemption or other expedited 
    procedure for approval of projects that are necessary to alleviate 
    public safety hazards but do not fall within the current exemption 
    for safety projects. On behalf of my colleagues in the Atlanta area 
    and others facing similar issues throughout the Nation, I thank you 
    for listening to our concerns.
    Senator Chafee. General Wykle?

 STATEMENT OF KENNETH R. WYKLE, ADMINISTRATOR, FEDERAL HIGHWAY 
          ADMINISTRATION, DEPARTMENT OF TRANSPORTATION

    Mr. Wykle. Thank you, Mr. Chairman and members of the 
committee, for this opportunity to discuss with you today 
conformity under the Clean Air Act. Mr. Linton and I have 
submitted our joint statement for the record. We each would 
like to make brief oral statements and then answer any 
questions you may have.
    As you know, under the Clean Air Act, Federal approvals for 
transportation projects in nonattainment and maintenance areas 
may be given only when those projects conform to the air 
quality goals and priorities established in a State's air 
quality implementation plan, or SIP. The EPA regulations 
implementing the Clean Air Act had two provisions that are of 
interest to us. One provision allowed projects that had 
previously been found to conform to the State SIP and had 
completed the NEPA process to continue to receive necessary 
Federal approvals even in the absence of a currently conforming 
plan or a transportation improvement program. This provision 
was useful for transportation projects that may take years to 
build and which for funding and other reasons are approved and 
constructed in phases. This grandfather provision allowed 
projects that had previously been found to conform to continue 
to receive Federal funding even though there may have been 
subsequent conformity lapses.
    The second provision allowed conformity determinations to 
be made based on the SIP emissions budget that had been 
submitted to EPA but had not yet been approved or found 
adequate. So you can make the assumption that it was going to 
be approved and proceed as if you were in conformity.
    The March 2 D.C. Appeals Court decision struck down both of 
these provisions. We are no longer allowed to make approvals or 
authorize Federal funding for most projects in areas where 
there is a conformity lapse. As of July 12, the loss of the 
grandfather provision affects seven areas of the country, about 
158 surface transportation projects, with a construction phase 
value of approximately $2 billion.
    Two other areas are adversely effected by the loss of the 
submitted budget provision, impacting a lot fewer projects. We 
expect the latter two areas to reestablish conformity by 
September, and all the first seven, except for Atlanta, to 
reestablish conformity by the end of the year. We understand 
Atlanta, which is the most affected by the decisions, will 
expect to reach conformity by about March of 2000.
    The list of affected areas is not static, however. Other 
areas are likely to fall out of conformity at certain points. 
The Federal Highway Administration will not be able to approve 
a project in any nonattainment or maintenance area which is in 
lapse unless the construction phase of the project had received 
plan specification and estimate or equivalent approval prior to 
conformity lapse, or is otherwise exempt from conformity. And 
so, there are certain exempt categories--traffic control 
devices, those types of things--which are not constrained by 
this decision.
    The Federal Highway Administration has worked closely with 
the Federal Transit Administration and others in the Department 
of Transportation and EPA to develop and issue guidance for 
operating under the March 2 decision until the EPA can revise 
its conformity regulations. We will work closely with the State 
and local officials when any community faces a conformity 
lapse. We are working with EPA as it develops its revised 
conformity regulations. And certainly, Mr. Chairman, we look 
forward to working with you and members of this committee to 
advance needed transportation projects while improving the air 
quality.
    Thank you for this opportunity to testify. We look forward 
to your questions.
    Senator Chafee. OK.
    Mr. Linton, do you have any statement you would like to 
make?
    Mr. Linton. Yes, Mr. Chairman, just very brief.
    Senator Chafee. Fine. Go to it.

 STATEMENT OF GORDON J. LINTON, ADMINISTRATOR, FEDERAL TRANSIT 
          ADMINISTRATION, DEPARTMENT OF TRANSPORTATION

    Mr. Linton. Thank you very much. Mr. Chairman and members 
of the committee, let me join my colleagues this morning in 
coming before you. I just want to say very briefly that we have 
worked to try to make sure that we come up with rules and 
regulations that meet the test of the court decision. 
Obviously, we and you face challenges in meeting both our air 
quality issues that confront our Nation as well as trying to 
make sure that we provide both access and mobility to the 
promise of America for those throughout our country.
    We think that we have tried to both meet that test, to both 
strike the very delicate balance between clean air for 
Americans, and at the same time, building both highways and 
transit projects that ensure continued access and mobility.
    Clearly, FTA and FHWA have different points in our process 
where we convey Federal funds to our recipients. In responding 
to the court decision though we think we have struck a very 
good compromise position. In responding to that decision, it is 
important that both FHWA and FTA establish a roughly equivalent 
point in our project development processes where we protect our 
major projects from delays by a conformity lapse. We think we 
have done that. The point for protecting a project on the 
highway side of the equation is at the approval of plans and 
specifications and estimates for the highway project. For the 
transit projects, the approval point is at the approval of a 
full funding grant agreement, which is our major contractual 
agreement with our major transit projects. We have strived to 
strike a balance, a balance that allows us, even after the 
conformity lapse, to have these projects go forward when we 
have made those types of major Federal commitments at that 
point in the process.
    Obviously, the challenge that we face of maintaining and 
improving our air while continuing to have access to mobility 
is going to be one that we will continually have to struggle 
with within the Congress as well as the Administration. We look 
forward to working with you, the members of the committee, Mr. 
Chairman, so that we can continue to strike that balance, by 
working out an agreement that ensures high quality of life for 
the American public.
    I look forward, Mr. Chairman and members of the committee, 
to your questions. We stand before you willing to do so.
    Senator Chafee. OK. Fine. Thank you very much, Mr. Linton.
    Mr. Perciasepe, I guess you could say that this court case 
on March 2 has caused a good deal of chaos within your 
department.
    Mr. Perciasepe. Which court case was that?
    [Laughter.]
    Mr. Perciasepe. I have a sense of humor. On the conformity 
court case, obviously, it goes without saying that it required 
the Department of Transportation and the Environmental 
Protection Agency, in consultation with States, to sit down and 
figure out how would our worlds work in this area to achieve 
the goals I mentioned in my opening statement with the reality 
of this court case. Where we came down on that as a team was 
that we could put together a program that we feel pretty 
comfortable with in terms of its ability to be workable and 
achieve the goals that Congress set out and at the same time be 
workable in the transportation world. And so that is what we 
have been endeavoring to implement as a subsequent matter from 
that court case.
    That required looking at both the transportation and 
transit construction pipeline, but it also required looking at 
the air quality planning side of this and how can we expedite 
what needs to be done in the air quality planning part. Half of 
this planning game is not just a transportation plan, but 
getting the air quality plan to be in good order as well. Some 
of these lapses, obviously, are due to the fact that the air 
quality plan or EPA's need to approve the budgets that are in 
the plan, et cetera, need to be expedited. So we are also 
working on that as well.
    So, yes, it created turmoil. We have gotten to it to come 
up with a program that we think is workable.
    Senator Chafee. General Wykle, what do you say to what 
Senator Bond was suggesting, that the conformity lapses could 
be responsible for loss of life because of inability to proceed 
with some of the safety measures. What would you say to that?
    Mr. Wykle. Well, as was pointed out, the current rules 
provide for certain exemptions and certain projects that you 
are able to proceed on. Safety is one of those, emergency run-
off areas for trucks, as an example, is excepted, traffic 
control devices--signage, signalling, those types of things--
are excepted. So there are quite a few provisions that permit 
proceeding with projects that improve or correct deficient 
areas in the infrastructure that might contribute to accidents 
or crashes.
    Senator Chafee. Senator Baucus?
    Senator Baucus. Thank you, Mr. Chairman.
    I am still unclear as to what went wrong in Atlanta. It 
sounds like, and I am not there so I don't know, that the 
Department of Transportation had these projects and the State 
Department, and as State Departments of Transportation do and 
should do, pushing them through. At the same time, it sounds 
like the air pollution in the Atlanta region was starting to 
get worse. And that, too, is they just were not talking to each 
other very much.
    I am really trying to find a solution to these kinds of 
problems, an approach that will obviate court litigation and 
things like that. I say that in part because that is my 
experience in Montana, that State DOTs do not talk enough to, 
say, Fish and Wildlife Service. Finally, we are getting the two 
of them to talk and work things out to get ahead of the curve, 
like apparently Portland is, Denver is, and I think it is 
Charlotte, I have forgotten the name of the other town you 
mentioned, Mr. Perciasepe.
    But what did go wrong, and how could it have been avoided? 
Anybody can answer, anybody who knows.
    Mr. Perciasepe. Let me start and then others can fill in. I 
think probably you hit the simple answer, that not getting 
ahead of the development process and the air quality planning 
process, so that they are coordinated, is the primary reason 
that there was a problem in Atlanta.
    One of the things that also happened is, as a lead up to 
the lapse determination over a couple-month period, there was 
NEPA approvals for six to 10 years worth of highway projects. 
So it is clear that the existing regulations at least allowed 
a, one might say, very generous ability to grandfather projects 
even in the face of a significant coordination issue between 
air quality planning and transportation planning. I think these 
coordination issues are probably the primary cause for 
precipitating what happened. I think there will be people here 
from Atlanta who can probably talk in more detail about that.
    What can we do to have that not happen again. We have been 
working with DOT to come up with a Memorandum of Understanding 
between the two of us, particularly EPA and the Federal Highway 
Administration, to have a process in place with our field folks 
so that long before it gets to that point we can work together 
with the State and the local government to try to solve the 
problem.
    Senator Baucus. Part of the problem though, looking at it 
from the Department's point of view or the contractor's point 
of view, there is too much ambiguity from EPA or from the air 
quality standards. For example, another court decision, as you 
know, struck down the ozone regulations because, as I take it, 
of ambiguity, or excessive use of authority, or whatnot. That 
causes some problems I would guess at the other end; that is, 
as to what they can and cannot do.
    Mr. Perciasepe. The plans that we are working on with 
States now are all based on the 1-hour standard. We won't get 
to planning on the 8-hour standard until if and when the court 
process ever gets completed, and then the States get into a 
planning process sometime early in the next decade. So that is 
something in the future. It will pose challenges, but it is in 
the future. What we currently face right now is the issue of 
the 1-hour standard. And that is what the issue was in Atlanta.
    Senator Baucus. General Wykle, maybe you could speak from 
the other point of view.
    Mr. Wykle. Sure. I think Atlanta is truly an exceptional 
case. There was a combination of factors, in my opinion, that 
kind of all came together down there at the same time. You 
certainly hit on one of the key ones, in terms of coordination, 
talking, communication between the various groups and 
activities and organizations involved. And then you have this 
issue that was addressed in the Chairman's statement as well as 
by Bob, in terms of planning horizons and the disconnect 
between the transportation improvement plan timing horizon and 
the SIP planning horizon.
    Senator Baucus. How much of a problem is that? Is that half 
of the problem, a quarter of the problem, a third?
    Mr. Wykle. I don't know that I could----
    Senator Baucus. Guess. Life is priorities, we have to 
decide to what we are going to devote our time and attention.
    Mr. Wykle. I do not know if it is quantifiable, per se, but 
a significant piece of the disconnect is caused by that. And 
then just a large surge in the number of projects--54 highway 
projects, 37 design projects, and 21 right-of-way projects--
were grandfathered there. So you have a large number of 
projects. So all these factors coming together, plus the 
interest groups taking various positions cause the disconnect.
    Senator Baucus. How easily could the State have amended its 
SIP or addressed the increased congestion problems in Atlanta?
    Mr. Wykle. How easily?
    Senator Baucus. Yes. Could that have been done without too 
much difficulty or not?
    Mr. Linton. Senator, if I can add to the comments that were 
made, and then I will answer your question as best I can. But 
let me just say that Atlanta has only once, in the last 20 
years, met the air quality standard. So I think we need to 
understand that there has been a long history of problems 
there, and that is with even the changes in EPA standards, only 
once in the last 20 years have they met that.
    Senator Baucus. So that should put the transportation 
planners on notice.
    Mr. Linton. That is correct. Clearly, as we examine 
Atlanta, they have the largest per capita travel miles anywhere 
in the world, at this point. I think there have been a lot of 
people talking but there has not been a real commitment from 
those who have met to really address this problem and look at 
all the elements that affect it.
    To that end, Governor Barnes has had to work very 
diligently to create, in essence, a super agency in that 
region. Once again, the effort there is to try to draw everyone 
locally together and develop a real commitment to begin to 
examine both their transportation projects, the impacts of 
those projects, as well as the sprawl and the land use issues 
that relate to those projects, and to how they improve or 
become even more detrimental to the air quality. There has not 
been a willingness for everyone to sincerely sit down and work 
with that clear mission and clear objective.
    I think, unfortunately, sometimes it has kind of taken, as 
my grandmother used to say, you have got to hit them with a 2 x 
4.
    You have had the Wall Street Journal that has written 
articles about the Atlanta situation, you have the Chamber of 
Commerce that has weighed in with the business interest, you 
have real estate interests concerned about what is going on 
there. I think the magnitude of the problem has finally gotten 
everybody to the table to begin to realistically approach the 
problem.
    Senator Baucus. Thank you. Thank you, Mr. Chairman.
    Senator Chafee. Senator Voinovich.
    Senator Voinovich. I have no questions.
    Senator Chafee. Senator Inhofe.
    Senator Inhofe. Thank you, Mr. Chairman.
    General Wykle, your June 18 guidance document replaced the 
previous regulations. I would ask if the guidance document 
underwent a notice and comment period?
    Mr. Wykle. The initial guidance that went out did not 
include a notice and comment period. It was an interpretation 
of the court decision and providing guidance to our field staff 
as to how to go about implementing the court decision.
    Senator Inhofe. Well, but the original regulations 
underwent a notice and comment period and this replaced it. 
This is what I am getting to, is if you had an opportunity to 
go through that process with your guidance document.
    Mr. Wykle. If I am understanding the question correctly, it 
is EPA's regulation. The court made a decision in terms of 
provisions in that regulation which they struck down which 
pertained to the grandfathering clause and the budget 
submissions. And so we took that court decision and provided 
guidance to our field. The revision and the rewriting of the 
regulation will go through the normal comment period, but EPA 
is responsible for doing that.
    Senator Inhofe. But the guidance that we have right now 
would not have gone through that? I am not saying this 
critically, I am just trying to find out who was involved in 
this thing.
    Mr. Wykle. Right. It is just our interpretation in the 
implementation of the court's decision and providing that 
information to our field staff.
    Senator Inhofe. I have been informed by different staff 
members that the guidance document was worked out with the 
Environmental Defense Fund. Is that correct, were they involved 
in this document?
    Mr. Wykle. Let me provide that answer for the record. I do 
not know factually whether they were or not. I will have to 
check on that.
    [The information to be provided follows:]
    The FHWA/FTA guidance was developed jointly by the two agencies, in 
consultation with EPA. Input was obtained from some of our field staff, 
but no outside stakeholder groups were involved. Stakeholder input will 
be obtained as part of EPA's rulemaking process, when they amend the 
conformity regulation to incorporate the changes resulting from the 
Court decision.
    Senator Inhofe. Mr. Perciasepe, do you have an answer to 
that?
    Mr. Perciasepe. I think the people who were party to the 
litigation, and I do not know all of them who were involved, 
had at least some input to whether or not this was an 
appropriate interpretation of the court case. But, again, I 
would also suggest that----
    Senator Inhofe. In terms of the guidance document though, 
EDF was in consultation?
    Mr. Wykle. I was just slipped a note from my staff. No, it 
was not.
    Senator Inhofe. They were not?
    Mr. Wykle. No. It was coordinated with EPA. So we worked 
with EPA, not EDF.
    Senator Inhofe. So the information I have is incorrect then 
that this was----
    Mr. Wykle. Based on the note I have here. But I certainly 
want to go back and double check since you have raised that 
issue. I will provide you the answer for the record.
    Senator Inhofe. But would EPA have done it with EDF, Mr. 
Perciasepe?
    Mr. Perciasepe. Again, I think our attorneys were involved 
in interpreting the opinion of the court and we had access to 
the interpretations of the court that the other litigants have. 
So whether there was a consultation or not, I do not know the 
answer to that.
    Senator Inhofe. Were the parties to the lawsuit involved?
    Mr. Perciasepe. Only to the extent that they provided 
papers to the court. I would have to determine if there was any 
other.
    Senator Inhofe. OK.
    Mr. Perciasepe. But I want to reiterate what the 
Administrator said, and that is that we needed to get some 
initial guidance out to say what this court opinion means. But 
we do have to go through a rulemaking to modify our rules, 
which we will do.
    Senator Inhofe. Was there any consultation, either one of 
you, any consultation with the highway users, the State and 
regional transportation officials, the builders association, 
the unions during the development of this guidance?
    Mr. Linton. Let me say, and I think we all would probably 
like to get some further information to the committee and 
submit it to the record, but since I was engaged with fairly 
intense discussions with my counsel during the development of 
the guidance, at no point did I know of any discussions with 
outside----
    Senator Inhofe. Including EDF?
    Mr. Linton. That is correct. All the conversations that I 
recall were between EPA and FHWA and FTA in terms of working up 
guidance that responded----
    Senator Inhofe. I think you have answered the question. I 
am sorry I have to cut you off because I am running out of time 
here and there are several areas I want to get into.
    Will the Administration support the Bond bill? Anybody.
    Mr. Wykle. Well, from our standpoint, the initial guidance 
that we put out we believe is certainly legally defensible in 
terms of going back and reviewing work that has been done. It 
will be effective. We are certainly willing to work with the 
committee on issues that you would like to address. But we 
think that we need to be very careful in terms of taking any 
actions that might reopen the Clean Air Act.
    Senator Inhofe. I know my time is about up, but the Bond 
bill actually codifies, goes back to where we were prior to 
March 2. So my question then would be, would the Administration 
support going back to that? And if not, if it was good enough 
prior to March 2, why would it not be good now?
    Mr. Wykle. I think I would just have to kind of come back 
and reiterate that the court took a look at this, found some 
weaknesses in it, we responded to that in terms of putting out 
guidance that we think is legally defensible based upon review 
of TEA-21. As an example, TEA-21 has in there that when PS&E is 
approved, that is a legally binding contract, in essence those 
are the words. So we think we have a very strong basis for the 
current guidance and that it will be effective.
    Senator Inhofe. Thank you.
    Senator Chafee. Thank you.
    One point I would make here. It is my understanding that in 
the whole Nation there are only seven areas that we have got 
this problem with.
    Mr. Wykle. That is correct.
    Senator Chafee. And so this is a serious problem obviously 
with those seven, and they are: Ashland, Kentucky, Atlanta, 
Kansas City, Kansas and Missouri, Monterey, Paducah, Raleigh, 
and Santa Barbara County. That is seven out of I don't know how 
many areas.
    Mr. Wykle. It depends on how you count, Mr. Chairman, 
because there is some overlap in the various areas. It could be 
around 266 or so.
    Senator Inhofe. It could be around what? I am sorry, Mr. 
Chairman.
    Mr. Wykle. That was 266.
    Senator Chafee. So that is 266 areas in the country, but 
there are only 7 where we have got a problem.
    Mr. Wykle. There is some double counting depending on which 
contaminant you are looking at.
    Senator Chafee. Senator Bond?
    Senator Bond. Thank you very much, Mr. Chairman.
    First, General Wykle, if a bridge falls in with cars on it, 
that is a safety problem, isn't it? If there is traffic on a 
two-lane highway that would normally require four lanes and 
somebody is killed in a head-on collision, that is a safety 
problem, isn't it? And if a car goes off a road because it is 
too narrow, that is a safety problem, isn't it? Doesn't that 
kill people? We are talking about highway safety here. I think 
you said safety projects are exempt. But Kansas City can't go 
ahead and let contracts to build a new bridge which is in 
dangerous condition. Now, where do you say that is not safety?
    Mr. Wykle. Certainly, safety is important, and the 
Secretary has indicated safety is his North Star, and we 
support that. We are working hard to improve safety within the 
Federal Highway Administration across many areas. When you get 
into a definition of the projects you have described, there are 
various options you can perhaps take.
    Senator Bond. Options? We do not want options. They bought 
the right-of-way, they started the projects, the Federal 
Government approved them, and now they are stopped, we are 
going to miss the construction season, and people can be killed 
or die. Really, when you talk about safety, you are talking 
about people losing their lives in the transportation process.
    Mr. Wykle. Sure. When you are talking about safety you 
definitely want to preclude people from losing their lives. As 
you look at the Kansas City situation, there are some 
alternatives there for the area to take to get back in 
compliance relatively quickly. We expect them to be back in 
compliance by the end of the year, if not sooner. That is not a 
very long time, in my estimation, to get back in compliance. 
And so preliminary type work can be ongoing that is not 
expending Federal funds directly on this project. But in terms 
of planning to get back in compliance, I think Kansas City will 
make it by the end of the year.
    Senator Bond. Kansas City, I am sure, will be moving 
forward on meeting the standards. But you said $2 billion in 
projects are on hold. When you miss a construction season in 
our area, that is a further year delay. We kill over 1,500 
people a year on the highways in Missouri. The Department of 
Transportation has statistics indicating that maybe as many as 
30 percent of those deaths are from inadequate highways. So you 
are looking at putting people's lives at risk.
    The Federal Government has approved these projects in the 
process. The grandfathering provision was adequate according to 
EPA in terms of assuring the air quality. What the court said 
was there isn't legal authority for them to issue that.
    I would ask you, Mr. Perciasepe, if you went through the 
process, and you did, and you had everybody involved in the 
process when you issued the initial grandfather rule, the court 
says there is a lack of statutory authority, why is it that the 
rule that was good enough from a clean air standpoint, from a 
factual basis on how we proceed with highways is all of a 
sudden not good simply because there is not statutory 
authority? Shouldn't we give you statutory authority to do what 
the EPA said was a responsible way of handling highway 
projects? You have had the opportunity to go through the 
process in approving these.
    Mr. Perciasepe. Let's talk about that for a minute. I also 
want to get back to the other question about safety. I want to 
make it absolutely clear, because I am very nervous about the 
way you are approaching that, we need to make it clear that we 
are in no way looking for ways to reduce the implementation of 
projects that are designed to prevent the loss of life on 
highways. I understand what you are saying about how some 
projects have multiple purposes including improving safety, and 
that is an important factor that needs to be taken into 
account.
    And I would agree with the Administrator that the No. 1 
answer is to get the areas into conformity. We do think in the 
case of Kansas City, because I have talked to both Governors in 
the last couple of days, that they can do this within months, 
within weeks if we work out what they are going to do.
    Senator Bond. I am about to run out of time. So let me just 
ask you to comment on why they shouldn't continue to work on 
air quality improvements and not miss a construction season on 
projects that are designed to limit deaths on the highways.
    Mr. Perciasepe. The projects that were given funding 
commitment can proceed.
    Senator Bond. Other new contracts cannot on those same 
projects.
    Mr. Perciasepe. If they have funding commitment, they are 
not going to miss the construction season because they can 
proceed. And if we can get them back into conformity fairly 
quickly, they won't miss a construction season.
    Mr. Wykle. What the Senator is getting at is segmented 
projects, I believe. And so if you have a segment that is 
approved, it can continue. It has PS&E on it or has funds on 
it. But if you haven't reached PS&E on another segment of the 
project, that is the issue the Senator is raising, the project 
is delayed.
    Senator Bond. Mr. Chairman, I will have questions for the 
record or later on.
    Senator Chafee. OK.
    Senator Lautenberg?
    Senator Lautenberg. Thank you, Mr. Chairman.
    Obviously, we are facing kind of a complicated situation 
here. I don't know whether any of you saw today's front page in 
The New York Times where Salt Lake City was continuing to build 
highways with the prospect of fairly significant congestion 
problems anticipated in the future, and Milwaukee, Wisconsin, 
is taking $20 million to destroy a half or semi-completed 
highway project there because they have decided that sprawl, 
congestion, et cetera, is not something that they want and they 
are willing to pull back and say highways are not the only way 
out of things.
    So, when we look at definitions of safety, and Senator 
Voinovich said in his comments that sometimes we in the east 
are the recipients of unwanted gifts that flow from the west 
through the air, if an accident takes place in one State, it is 
a problem within that State, but there is no reason why people 
in New Jersey, Connecticut, and Rhode Island have to import 
health problems that are as damaging to one's safety as 
accidents. And so we have to deal with the reality that this 
isn't just a pell mell race to get something done because there 
is a situation that could be a little compromised. I think 
General Wykle said it, there are alternatives in Atlanta that 
could be used.
    The question therefore comes up, what do we do with the 
half or semi-completed projects that are out there, knowing 
full well that what can be expected in the future is more foul 
air? What do we do with those things? How would any of you 
suggest that we deal with it? Are we simply to march along 
saying, look, this is something you started, and there is a 
case there to be made, or do you say we are governed by rules 
that protect more people than just those traveling in that 
particular part of the country.
    Mr. Perciasepe. I will take a very quick stab, and this may 
not help enlighten too much the dilemma that State and local 
governments face in their planning efforts. But from a 
perspective of the air quality act and of the conformity part 
of it, if the air quality plan and the transportation plan are 
working in concert with each other, whether it is finishing 
that stage or not finishing that stage is subject to that, and 
that is a decision that goes on in the transportation 
implementation planning process that every metropolitan 
government undertakes.
    The air quality can be handled depending on what kind of 
decisions they would make. Right now, as I think the Chairman 
mentioned, there are only seven areas in the country facing 
this dilemma and we are working very hard in concert with the 
Department of Transportation to get those people into 
conformity so that there aren't any of these dilemmas.
    Senator Lautenberg. Do you feel comfortable saying that out 
of the 266 programs or projects that are now underway, only 7 
are going to be problems? Or are we going to discover that 
problems occur at a later time?
    Mr. Wykle. First of all, sir, that was areas that are in 
conformity lapse, not projects. So there are seven areas that 
are in conformity lapse. We are confident, as I mentioned, that 
we are going to get six of those seven back in conformity by 
the end of the year. Atlanta has a projected date of by about 
March 2000. But that does not mean that there will not be 
others that may go out of conformity during this next 6 months, 
because it depends upon their SIP and their conformity plans 
and whether or not they maintain their conformity. So the 
number will vary at a given time.
    Senator Lautenberg. So what would each of you say to the 
conformity requirement, do you think that we can universally 
meet that requirement without abandoning or stopping any of the 
projects that are currently underway or committed for?
    Mr. Wykle. I think we can. I think we have demonstrated 
that in the past. None of these court decisions is changing the 
standard. It is a requirement to meet the standard and how you 
meet the standard and the process for doing that. So I think it 
has been demonstrated that we can meet the standard with the 
projects that we need to construct. We will continue to meet 
the standard. The debate I believe is over the process for 
determining whether or not the standard is met. And so those 
are the areas that we need to work together on to ensure that 
we have a process that is agreeable to all of us and that we 
understand. Then the communities can understand, and working 
together, we can move forward to meet the standards and get the 
projects completed.
    Senator Lautenberg. That is what I think we all felt we 
were doing before the court reviewed the situation.
    Mr. Wykle. Sure. To me, informally, it is kind of like the 
rules of the game changed during the game. The court decision 
changed the rules by striking down the two provisions, one on 
the budget submission, the other on the grandfathering. So now 
we have put out some interim guidance as to how to operate with 
that court decision. And EPA is in the process now of designing 
and writing a new regulation that will go out for public 
comment and input to implement that.
    Mr. Perciasepe. It is important to note that the rules are 
for when there is a failure to do the planning coordination. 
Again, out of the 200 and some-odd areas that have to look at 
this or that are regional planning areas, those are your MPOs I 
guess that you all work with on transportation implementation 
plans, there are seven that we are currently working with. I 
think we have already said what we think will happen over the 
next 4 or 5 months to try to resolve most of those.
    And so the question is, if there is a failure of the 
planning processes to be coordinated, what happens? What gets 
to remain to sustain some continuity both in the transportation 
and the air quality area, and what has to be fixed and how 
quickly can it be fixed? To me, those are the central 
questions. It isn't a matter of conformity, of stopping all the 
highway projects in the United States. It is where has there 
been a failure of the air quality planning and the 
transportation planning to be coordinated, what do we do when 
that happens to fix the problem and get it back on track, and 
what happens while that fixing is taking place, do we have 
adequate things in the pipeline going so that the adjustments 
can be made by the local MPOs and States in terms of their 
transportation planning and air quality planning. It seems to 
me that is the area that we are focusing on, is how do we 
manage that process. And more importantly, and I think this is 
vital, how do we manage ourselves and working with the States 
and the local governments so that we can get ahead of that 
before it happens.
    And so I think the decision you started off with in terms 
of the what do you do about these phased projects, it really is 
a matter of how does the local MPO and State transportation 
planning want to handle that in the combination of the air 
quality and transportation implementation plans.
    Senator Lautenberg. Thank you, Mr. Chairman.
    Senator Chafee. Senator Inhofe had one more question.
    Senator Inhofe. I did, Mr. Chairman. I appreciate the 
indulgence of the Chair.
    Going back to the question that I asked about the 
consultation in the guidance document, I heard your answer and 
it was very specific that there were none that were involved. 
There was a staff briefing on April 20th where DOT and EPA 
briefed the staff and made a commitment that the EPA and DOT 
will work with stakeholders to formalize the approach in the 
conformity rule. Now this is a statement that was made by the 
two of you. Was this done? Are there stakeholders that----
    Mr. Wykle. Well, as I understood the statement, they will 
be during the development of the conforming rule. That is yet 
to be developed. And that is what EPA will be doing now in 
light of the court decision. We put out some guidance to the 
field in terms of our interpretation and the implementation of 
the court decision. So when the rule is written, certainly EPA 
will coordinate with the interested stakeholders.
    Mr. Perciasepe. And we will do that while----
    Senator Inhofe. You were talking about the guidance 
document at the time. In fact, I am reading from your own 
document here. It says ``EPA and DOT will issue more detailed 
conformity guidance''--conformity guidance--``in the near 
future.'' And it says that they would work with stakeholders at 
that time. Now, I would assume that this has already happened. 
Are you saying that you have not worked with stakeholders?
    Mr. Wykle. I want to provide that answer for the record, 
sir. I do not know. I have not personally talked to them. I 
need to check with my staff to see whether or not they have in 
fact done that. The note I received during the testimony was 
that we have not coordinated with EDF.
    Senator Inhofe. But you do both agree that both the EPA and 
DOT did make this statement?
    Mr. Perciasepe. Whatever piece of paper you have----
    Senator Inhofe. Well, the two people who made the statement 
and conducted the briefing are here in the room today, Margo 
Oge and Jim Shrouds. Why don't you ask them.
    Mr. Perciasepe. Margo Oge, who is the director of the 
Office of Mobile Sources, is here with me today. But let me 
just say some of this may be between the initial guidance that 
we put out and how we are going to formalize it in the 
rulemaking process. I can assure you we are going to work with 
every stakeholder as we start to do the rulemaking process. 
Before we even put out a proposal, we will be working with all 
the stakeholders to put a finer plan. But we will formalize 
whatever the interpretations are in the rulemaking process. 
There will have to be some formalizing of the guidance.
    Senator Inhofe. So there will be some consultation with 
stakeholders, not limited to but including the ones that I 
asked in my question, is that correct?
    Mr. Perciasepe. States, MPOs, AASHTO, everybody who has an 
interest in this will be involved in that process as we 
formalize these interpretations.
    Senator Chafee. Mr. Bond, if you could make it brief.
    Senator Bond. I will make it very brief, Mr. Chairman.
    I believe I have heard all three of you say that you are 
working together, EPA, DOT, with the local officials to make 
sure they come into conformity. That is very important. And you 
have also said, I think I heard you say, Mr. Perciasepe, there 
is no reason to stop projects which are 12, 15 year projects if 
you are going to continue to get into conformity. And as I 
understood General Wykle, the grandfathering approach worked 
because the Federal Government had a cut at approving the 
plans, if subsequent activities bring them out of conformity, 
you continue to work to get the areas back into conformity.
    These guidelines, the guidance is supposed to be 
implemented by the MPOs and the State transportation officials. 
That is correct, isn't it? They have written to me saying that 
they are not workable. Is it your view that these State and 
local officials are just wrong?
    Mr. Perciasepe. Who is wrong and who isn't? As you know, as 
in many of the issues we all deal with, it is in how you look 
at it. These have to be tested as to whether they are wrong or 
not. This assumption that they won't work has got to be based 
on a number of factors that may be different than the factors 
that we are considering.
    Senator Bond. But the old system did work.
    Mr. Perciasepe. One could argue that in Atlanta it did not 
work. When you grandfather six to 10 years of projects without 
any consideration of how that is going to impact air quality, I 
think one might say maybe EPA's regulations sometimes are not 
right.
    Senator Bond. Yes. And maybe you were wrong in approving 
them in Atlanta.
    Senator Chafee. All right. Thank you all very much.
    Senator Chafee. We will now ask the next panel to come 
forward, which consists of Mr. Dean Carlson, Secretary of 
Transportation from Kansas; Mr. Jack Stephens, Executive Vice 
President of the Metro Atlanta Rapid Transit Authority; Mr. 
Jacob Snow, General Manager of the Nevada Regional 
Transportation Commission; and Mr. Pisano, Executive Director 
of the Southern California Association of Governments. If 
everybody could take his seat.
    We are going to move right along now. We will start with 
Mr. Carlson.

  STATEMENT OF E. DEAN CARLSON, SECRETARY OF TRANSPORTATION, 
              KANSAS DEPARTMENT OF TRANSPORTATION

    Mr. Carlson. Mr. Chairman, members of the committee, I am 
Dean Carlson. I am here to testify on behalf of the American 
Association of State Highway and Transportation Officials. I am 
the Secretary of Transportation in Kansas. I want to thank you, 
sir, for your bold leadership in holding this hearing to 
address the critical problems that are associated with this 
very complicated issue called transportation conformity.
    On June 18, the Federal Highway Administration and the 
Federal Transit Administration called a halt to Federal funding 
for a dozen projects in eight States, according to our records, 
adding up to hundreds of millions of dollars. This is the 
result of the March 2 court decision which overturned 
grandfathering, the ability for projects that have received all 
environmental approvals to proceed if an area later cannot 
demonstrate conformity.
    Mr. Chairman, AASHTO supports the national goal of 
improving air quality. We strongly believe that environmental 
stewardship is very much a part of our fundamental 
transportation mission, and we continue to seek innovative, 
multimodal strategies to achieve these two goals. However, we 
are extremely concerned that the agreement reached by EPA and 
DOT to implement the March 2 court decision is burdensome and 
unworkable. To this end, we strongly urge your support of S. 
1053, recently introduced by Senator Christopher ``Kit'' Bond.
    S. 1053 would reinstate the transportation conformity 
process as it existed prior to the March 2 decision. While it 
does not solve all the problems we have with conformity, it 
would permit us to return to rules that were adopted after 
lengthy negotiation and debate within the transportation and 
environmental communities. We strongly support enactment of S. 
1053.
    The current transportation conformity regulations were 
drafted by EPA to implement the provisions of the Clean Air Act 
Amendments of 1990. As we gain practical experience, three sets 
of amendments were negotiated to improve their effectiveness. 
Unfortunately, this was completely undone by the March 2 
decision. In its decision, the court remanded several key 
adjustments made by EPA which were designed to bring some 
flexibility and common sense to the conformity process. 
Essentially, the court eliminated the grandfathering provision, 
prohibited the use of submitted budgets as a basis for making 
conformity determinations, and eliminated the 12-month grace 
period that was available to newly designated nonattainment 
areas to technically prepare for conducting conformity 
analysis.
    Despite our urging, EPA chose not to appeal, instead, 
crafting with DOT an administrative agreement which from their 
perspective would soften the impact of the court decision and 
would avoid uncertainty that might have occurred during an 
appeal. We believe the June 18th guidance released by DOT and 
EPA does not mitigate the impacts of the decision. It is even 
more restrictive and burdensome than earlier guidance issued 
soon after the court's decision. Nor does this administrative 
action ensure that additional court challenges will not 
continue to disrupt transportation programs.
    In essence, what we now have is an agreement between EPA 
and DOT which is intended to mitigate the impacts of the 
court's ruling but actually allows highway project development 
to be disrupted right up until the day construction begins. In 
fact, DOT has informed States that in the event of a conformity 
lapse, they will immediately stop payment for ongoing design 
work and right-of-way acquisition. These are not new projects 
but, rather, ones that are the product of a rigorous and 
lengthy regional transportation planning process and that have 
already passed previous conformity tests. This is work 
undertaken under a formal project agreement, essentially a 
contract between the State and Federal Government. The court's 
action effectively abrogates those contracts. The decision not 
to appeal essentially means that unilaterally one half of the 
parties to the contract decided not to try to keep the contract 
in force.
    Mr. Chairman, the court itself recognized the burdensome 
nature of its ruling, stating: ``If this legislative scheme is 
too onerous, it is up to Congress to provide relief.'' Such 
relief is needed and the legislation introduced by Senator Bond 
would statutorily reinstate the conformity status quo that 
existed prior to March 2.
    In my own State of Kansas, we have determined that in order 
to maintain air quality, 10 years from now the Kansas City 
metropolitan area will need to begin using reformulated 
gasoline. Ten years from now. This 10 year horizon would give 
us the time to put in place the necessary distribution 
infrastructure to ensure a smooth transition and effective 
implementation of this air emission reduction strategy.
    However, EPA is insisting that in order to take credit for 
this strategy in Kansas City's Long Range Plan, we must have 
enforceable mechanisms in place to begin using reformulated 
gasoline within 1 year despite the fact that it is not needed 
for 10 years. Without the ability to take credit for this 
effective emission reducing strategy in the long-range plan, 
Kansas City's transportation conformity demonstration has 
lapsed and our transportation program has come to a halt. Both 
highway and new transit capacity projects have been stopped.
    We are not alone. Other areas face similar problems. In the 
Raleigh, North Carolina metropolitan area, the court's decision 
affected some $72 million worth of projects. Other projects are 
on hold in Kentucky, California, Georgia, and Missouri, and 
others. My written testimony includes examples of how some 
metropolitan areas are already experiencing problems due to the 
court decision.
    To understand how convoluted and difficult this issue is, I 
have attached an example of what could happen to a project 
under the conformity regulations that are now covered since the 
June 18th direction. However, these problems, while they are 
restricted right now to either seven or eight areas, depending 
on how you count, these problems will spread throughout the 
country to other nonattainment and maintenance areas, the 
numbers of which will increase with the new ozone and 
particulate matter standards.
    Mr. Chairman, AASHTO's member States share the national 
goal of improving the air quality and believe that we should 
work cooperatively with the Federal Government and 
environmental community to find and implement practical and 
effective procedures and strategies to help us meet our mutual 
goal. The D.C. Circuit Court decision has placed the States in 
an impossible situation that leaves project funding facing an 
uncertain future, right up to the point at which the shovel 
goes into the ground. EPA and DOT attempted to mitigate the 
effects of the decision but, unfortunately, each successive 
release of guidance became ever more restrictive. Legislative 
action I believe is now required, and we applaud Senator Bond's 
efforts on this issue and urge your support of S. 1053.
    I am prepared to answer any questions, and request that my 
written testimony be included in the hearing record. Thank you.
    Senator Chafee. Yes, that will be done. Thank you very 
much.
    And now Mr. Jack Stephens from the Metro Atlanta Rapid 
Transit Authority.

  STATEMENT OF JACK STEPHENS, JR., EXECUTIVE VICE PRESIDENT, 
  CUSTOMER DEVELOPMENT, METRO ATLANTA RAPID TRANSIT AUTHORITY

    Mr. Stephens. Thank you, Mr. Chairman, members of the 
committee. I appreciate the opportunity to appear before you 
today. I am Jack Stephens, Executive Vice President at the 
Metropolitan Atlanta Rapid Transit Authority in Atlanta. You 
have my written testimony. My message to the committee is very 
simple. The Clean Air Act and the resulting regulations and 
court actions are serving as change agents in our community to 
focus our attention on our health and traffic congestion 
problems and solutions to those.
    Although I am a strong advocate for public transit in the 
transportation conformity discussions within all areas of our 
government, that is not the reason I appear before this 
committee today. I hopefully am able to offer you some insights 
as to what is going on in Atlanta as a unique experiment, if 
you will, in terms of these conformity regulations and give you 
our experiences down there.
    Atlanta is extremely successful as an overall community. We 
are very, very pro-business, but we have a couple of problems. 
We have few natural barriers to growth; no great rivers to 
cross, no mountain ranges or valleys, no sea coast. We have a 
history of weak land-use laws. These are generally assigned to 
local governments. And like water poured onto a flat surface, 
we can, and do, grow freely in any direction that we desire. 
Without natural boundaries and with competition for growth 
strong among local governments, our region has become the 
poster child for sprawl.
    As recently as today, the Newsweek Magazine, the latest of 
many, is touting Atlanta as the ``sprawl capital,'' not 
something our civic boosters or our business leaders would like 
to have touted to the rest of the world. And it explains our 
problems pretty well. Sprawl has results in Atlanta residents 
traveling more in their automobiles than anyplace in the world 
we believe, more than 100 million miles a day, representing 
36.5 miles per person, including every man, woman, and child 
below driving age. Our average commute now is almost 51 
minutes.
    The result is that the Atlanta region has been classified 
as serious for nonattainment, I think obviously so. Federal 
sanctions placed on my community are undoubtedly causing 
difficulty. The response to these sanctions has brought out the 
worst and the best in our public servants and our citizens. Let 
me give you one example, one we have been talking about a 
little bit today already.
    When the Federal sanctions were imposed on our region for 
failing to meet conformity, more than 100 road projects were 
considered for grandfathering under conformity regulations. 
Most of these would have greatly increased single occupant 
vehicle use in the region and exacerbated the problems of 
cleaning the air. These were not necessarily bad projects, and 
all were projects individual local governments advocated and 
the Georgia DOT supported for local development and increased 
mobility. However, even if Federal sanctions remained in place, 
for any new road projects, estimates were that these projects 
would take up to 10 years to complete--at a time when we were 
in serious nonattainment for ozone. Was this the intent of 
Congress? I certainly hope not.
    But the system worked in this case--difficultly, ugly, but 
it worked. Subsequent negotiations among Federal and State 
agencies paired this list nearly in half. Then a lawsuit was 
filed and settled out of court that reduced the number of 
projects to 16. Although not everyone, and perhaps no one, was 
totally satisfied with the result, I think it is clear that it 
took the region in the right direction for solving its clean 
air problems. I am convinced that this result would never have 
been achieved without the law and the court's insistence that 
the will of Congress be obeyed.
    Congress' intent expressed through the Clean Air Act, 
Federal agencies' willingness to impose sanctions, and the 
Federal court's willingness to uphold the law have 
significantly changed the dynamics of decisionmaking in the 
Atlanta region. Unquestionably, that was the reason our newly 
elected Governor Roy Barnes was able to convince the State 
legislature to create a new State agency, the Georgia Regional 
Transportation Authority. We call it GRETA, and it is empowered 
to withhold State support for transportation and other projects 
if local governments are not responsible in planning and 
addressing issues of transportation conformity and congestion.
    The transportation conformity requirements and ultimately 
the threat of successful litigation are forcing communication 
among all levels of government charged with transportation and 
environmental planning. If we want more roads, then we must 
support other transportation alternatives that will allow us to 
achieve conformity. Meaningful land use planning to better 
support our transportation decisions and smart growth policies 
are now being debated as clear elements in preserving our 
quality of life and continued regional success.
    In conclusion, I would ask Congress and this committee to 
move cautiously in considering changes to the transportation 
conformity provisions of the Clean Air Act. Change is occurring 
in our communities challenged with achieving conformity and 
meeting the national air quality standards. We continue to need 
help from our Federal partners as we seek to meet this 
challenge, but we must solve our own problems at the State, 
local, and regional level. Sadly, it is unlikely that this will 
happen without the continued insistence of the Congress in this 
matter. Thank you, sir.
    Senator Chafee. Thank you, Mr. Stephens. I must say, those 
statistics you gave us, did you say that the Atlanta people 
travel 100 million miles a day?
    Mr. Stephens. Yes, sir. That is the latest from our State 
Implementation Plan.
    Senator Baucus. I believe it. I have two relatives down 
there and they drive a lot.
    Mr. Stephens. Yes, sir.
    Senator Chafee. And every man, woman, and child, as it 
works out, travels 36.5 miles per day.
    Mr. Stephens. Yes, sir. Correct.
    Senator Chafee. Incredible.
    Mr. Snow?

  STATEMENT OF JACOB L. SNOW, GENERAL MANAGER, CLARK COUNTY, 
           NEVADA REGIONAL TRANSPORTATION COMMISSION

    Mr. Snow. Mr. Chairman, members of the committee, my name 
is Jacob Snow, I am General Manager of the Regional 
Transportation Commission of Clark County, Nevada. We call it 
RTC for short.
    The RTC does three things: We administer about $50 million 
annually of locally generated fuel taxes for street and highway 
construction; we serve as the transit service provider for the 
greater Las Vegas area; as well as serve as the metropolitan 
planning organization for the greater Las Vegas area and for 
Clark County. That means that we are responsible for preparing 
a regional transportation plan and a transportation improvement 
program through which all Federal funds for street and highways 
must flow.
    Mr. Chairman, you and I jointly share a mutual friend in 
Elaine Roberts, who is the chief administrator of T.F. Greene 
International Airport in Warwick, Rhode Island. She is a very 
fine airport administrator. The reason I mention her is that 
she preceded me as the chair of the environmental committee of 
the American Association of Airport Executives. And ever since 
1993 when the air quality conformity regulations were 
promulgated, it has been a significant issue for airports.
    Speaking of this case in Atlanta, we have talked about how 
the consequence of that is that Federal funds cannot be spent 
on highways projects right now. Well, think of the Atlanta 
airport. They have a major expansion program going on with a 
new runway, a new international terminal involving hundreds of 
millions of dollars and Federal funds are involved in that 
project. You would think that the logical corollary would be 
that those funds and those approvals would also be held up. But 
they are not.
    And I am here to tell this committee that not all 
transportation related to air quality conformity determinations 
are created equally. Because for airports, they fall under a 
different rule called ``general conformity.'' I am going to try 
to use this high-tech visual aid here, this balloon, to 
demonstrate that. We have talked about emission budgets today.
    The amount of air in this balloon would represent the 
amount of hazardous air pollutants that could be generated with 
100 million miles of roadway travel in Atlanta per day. Now the 
airport projects will also have additional emissions associated 
with them, and they must be accounted for in an air quality 
conformity determination. Roughly, airports in a municipality, 
a large urban area is about 10 percent of the total. So what we 
have got to do is we have got to take this total of air 
pollutants and add about 10 percent to it. Roughly, for 
airports.
    [Laughter.]
    Mr. Snow. Now these airport projects can go forward 
because, under the general conformity rules, airports can 
provide project level mitigation. They can go out in the 
community and acquire emission reduction credits or they can 
reduce emissions on the airport through a number of ways. They 
can thus reduce that 10 percent down to meet the emission 
budget.
    We in the surface transportation industry do not enjoy that 
kind of flexibility. We do not have it because of the way the 
regulations are written. We cannot provide project level 
conformity for street and highway projects. We should be able 
to. We think, Senator Lautenberg, you mentioned Salt Lake City 
and Milwaukee where they are choosing to go in different 
directions based on local choice and preference, we think that 
local municipalities ought to have that preference to 
prioritize how their transportation projects ought to proceed 
and not have the Federal Government micromanage transportation 
policy at the local level.
    So what we would suggest would be that, even though there 
are legislative solutions out there to this problem which have 
their merits and need to be debated by Congress, the statute 
would allow a change in the regulations so that for 
transportation conformity the local governments also have the 
option to provide project level mitigation so they can decide 
if their street and highway projects are really important to 
the community.
    What is worse is that, as a result of this new case, there 
are very beneficial projects for transit--and when I say very 
beneficial, I mean very beneficial to air quality--but we 
cannot use Federal funds if our TIP lapses to acquire new 
busses which will take cars off the road, put the people in a 
high occupancy vehicle, and thereby reduce emissions 
significantly. Same thing for a new start with a fixed guideway 
project. We will not be able to use Federal funds to clean the 
air.
    So, in essence, the Federal Government is telling us is in 
Las Vegas you have got an air quality problem, we have got the 
way to help you solve it with Federal funds, but we are not 
going to. Solve your own air quality problem first even though 
we have the means to help you do it. Well, we don't think that 
makes much sense.
    Our suggestion to this committee would be that through the 
regulatory process, if you go ahead and allow local governments 
the option to choose, give them the ability to provide project 
level mitigation, that they, in and of themselves, with the 
Federal Government's help, can reduce the amount of pollutants. 
That is our suggestion to this committee.
    In conclusion, Mr. Chairman, I want to also state that I 
would like to submit my written testimony for the record. I 
want to read this final paragraph because Section 7506 of the 
United States Code states that ``Any Federal project that will 
contribute to eliminating or reducing the severity and number 
of violations of the National Ambient Air Quality Standards is 
a conforming project.'' Now, that is a true statement. 
Ostensibly, projects such as enhanced bus service, high 
occupancy vehicle only lanes, and new and expanded fixed 
guideway systems that can demonstrably show a reduction in 
hazardous air pollutants in association with their 
implementation should be allowed to proceed forward and be 
federally approved and funded. Thank you.
    Senator Chafee. Thank you very much, Mr. Snow.
    Mr. Pisano?

    STATEMENT OF MARK PISANO, EXECUTIVE DIRECTOR, SOUTHERN 
             CALIFORNIA ASSOCIATION OF GOVERNMENTS

    Mr. Pisano. Chairman Chafee and members of the committee, 
my name is Mark Pisano, the Executive Director of the Southern 
California Association of Governments. We are the MPO for six 
counties in southern California, 186 cities, which makes us the 
largest MPO in the Nation. Not only is the region the largest 
MPO, but we cover four air basins and five air districts. One 
of those air districts and basins is the South Coast Basin, 
which is an extreme, and the only extreme, nonattainment area 
in the Nation. Consequently, we have a keen interest in the 
subject matter before the committee today.
    At the outset, I would like to state that since the process 
of conformity was introduced in 1990, we have found it to be a 
major tool in our efforts to plan transportation improvements 
and to meet air quality within our basin. The conformity 
requirements coupled with the financial constraints and the 16 
factors have led to a process that has caused us to change and 
transform the way transportation decisions are made in our 
basin. I would be happy in the question period to explain the 
changes that have occurred and what the fundamental impact of 
these provisions have been in our region.
    Not only has there been a change, but we have also during 
that time period successfully made two transportation plan and 
four transportation improvement plan conformities plus a major 
amendment to our transportation improvement plan within our 
region despite an increase of 12 percent in our population 
within the region. However, it is also very important to note 
that making conformity findings is becoming increasingly 
problematic for us, which could put in jeopardy our ability to 
carry out the $24 billion in projects currently contained in 
our transportation improvement plan.
    Simply put, the process works and conformity works, but the 
process is complex and cumbersome, and it is also expensive. We 
believe that there are streamlining and simplifications and 
improvements that can be made to process, and I would like to 
offer a few suggestions.
    The first relates to the issue of the budget contained in 
the air quality plan and the time period for the transportation 
plans. Let me give you a specific example. Our current approved 
State Implementation Plan, which was approved in 1994, has a 
2010 date and it has a budget for that date. But our 
transportation plan that we adopted goes to the year 2020 and 
we are now considering a 2025 plan. The time period between 
2010 and 2020, we have to meet the same budget. There is no 
provision to take into account technological changes or the 
potential for rules to be introduced post-2010.
    As a result, we perceive a difficulty in providing for 
growth in the region. I might note that growth in our region is 
substantial and one of our most significant issues. In fact, 
our population will grow by 6 million residents on top of the 
current 16.7 million that we have in the region, for a total of 
almost 22.5-23 million people by the year 2020.
    I have suggested a number of mechanisms that could be 
considered to deal with this change in budget issues, such as a 
build or no-build test, or allowing historical demonstrated 
technology to be introduced into the budget.
    The second issue is timing cycles. As I said, conformity is 
expensive. We have a transportation plan that is adopted every 
3 years, an air quality plan that is adopted every 3 years, 
they are not necessarily on the same cycle, and then we have 
transportation improvement cycles that are every 2 years. We 
need to find mechanisms in which we can more effectively couple 
and only conduct conformity requirements when they are needed, 
and furthermore, that we minimize the number of conformity 
findings.
    The third issue is EPA's approval process on plans. We 
currently are operating off of a 1994 State Implementation 
Plan. We approved in 1997 an AQMP at the local level but, 
because of difficulty between EPA, the environmental groups, et 
cetera, that plan has not yet been approved. We need to improve 
the consultation process so that we do not get to the end of a 
plan and find difficulties with our approving agencies.
    The next issue that I would like to discuss is the question 
of the impact of sanctions for nonattainment status. Currently, 
as the statute is written, we have difficulty in balancing, and 
this is based on experience from other areas, not from our own 
area, but we have difficulty in balancing the impacts between 
transportation and other sectors. Once a region is declared out 
of transportation conformity, it is unable to restore its 
conformity through measures taken in other areas. Each sector 
is treated as a closed system and there is difficulty in 
balancing the provision and timing of implementation of 
measures in different sectors. This cannot cross the borders of 
the various sectors.
    I might also note that the impact of sanctions in the 
various sectors is uneven. There is a very strong motivating 
force in the transportation area. I ask whether or not the same 
forces exist in the other sectors so that every one can come to 
the table and make the agreements necessary.
    Which brings me to my last point, and that is a large 
sector in our region involves Federal actions under both 
general conformity provisions, as has been stated, and also 
federally controlled and regulated sources. The first part of 
that issue is the interagency consultation process. We 
constructed our own process, it was not provided for in the 
regulations. We are suggesting that provision be incorporated 
into the regulations upon their next revision.
    With respect to the issue of general conformity, we have a 
very strong working relationship with DOD and FAA where we make 
findings on conformity on base closures and on airports. But 
those are the only Federal agencies in our region that we have 
general conformity findings made. EPA on their own programs, of 
water, waste water, solid waste, does not make general 
conformity findings, as well as HUD, Commerce, Interior, and 
there are significant actions that those agencies take within 
our region. A more consistently applied general conformity 
would be helpful for attainment, as well as the more active 
involvement of the federally regulated sources like diesel 
engines, trains, ports, and airports are important for meeting 
attainment in our region and enabling us to continue to 
maintain our conformity findings.
    This concludes my remarks. I would be pleased to address 
any questions that you may have. Thank you.
    Senator Chafee. Thank you very much, Mr. Pisano.
    I have a question for Mr. Snow. You made the point in your 
testimony when you had that little bus out there that transit 
projects will be delayed during a conformity lapse and that is 
bad for the environment. But wouldn't the best thing for the 
environment be to make sure that the highway emissions fit 
within your goals?
    Mr. Snow. Absolutely. And also in my testimony, Mr. 
Chairman, I wanted to emphasize that it needs to be up to the 
community to have the option to provide project level 
mitigation. And so, for example, if a new street or highway 
project were proposed, it could go forward if that community 
were able to reduce emissions from the overall budget in some 
other area. At least that way the community would have the 
option to prioritize what was important for them and at the 
same time meeting air quality goals but also meeting 
transportation demand.
    Senator Chafee. Mr. Carlson, I am not sure that I 
understood you. Is it your contention that emissions from cars 
and trucks have been reduced so much in past years that you 
don't need to make any effort to control them in the future? 
That probably wasn't what you said.
    Mr. Carlson. Not exactly. No, what I said was that we are 
in conformity until 2010, which is the period of the SIP 
budget, but we would be out of conformity beyond 2010 and 
reformulated gasoline would solve that problem. But EPA will 
not let us wait until 2010 to impose that. We have to have an 
opt-in letter from both of our Governors immediately with a 1-
year phase-in even though we do not need that correction until 
after 2010 to conform Kansas City's plan.
    Senator Chafee. All right.
    Mr. Stephens, this conformity business, do you think it has 
been helpful in making Atlanta rethink its regional 
transportation strategies?
    Mr. Stephens. Yes, sir, no question about it in my mind. 
The issue of conformity is extremely difficult for the 
implementing agency, whether it be a highway department, or a 
transportation department, or a transit organization, or a 
local government. There is no question about the complexity--
the changing of the rules when the regulations change, and what 
is going on with the law, an amendment here and what kind of 
impact does it have, a court decision. Everything changes, just 
like it did on the new guidance we recently received. 
Ultimately though, if it is the will of Congress and a 
commitment to keep your eye on the prize, which in this case is 
clean air for our citizens, then all of these other things are 
what we are paid to deal with, to argue about, to go through to 
get to our ultimate goal, which is clean air for our citizens.
    I think the Clean Air Act and all of the resulting issues 
that we have been discussing here today are directing us to 
that point and will help us achieve that goal. I wish that we 
could be extremely reasonable and insightful and wise and go 
about it just because it is the right thing to do. 
Unfortunately, the way that our government is put together at 
all levels does not always allow for that to occur simply 
because it is something that we would like to occur.
    Senator Chafee. Senator Baucus?
    Senator Baucus. Thank you, Mr. Chairman.
    As I perceive this problem, it seems that the courts are 
trying to follow the law, and there is a law here. Basically, 
we are dealing with the 1990 Clean Air Act, an act which passed 
this Congress overwhelmingly, very few votes against it, lots 
of different problems worked out, but which did include a 
provision on the conformity standards that we are basically 
addressing today. And I also understand there is a little bit 
of a disconnect between surface transportation and airport 
projects and so forth. Nothing is perfect.
    There is a law there, and I think Mr. Perciasepe made a 
good point that the regulations are designed for when there is 
a problem. We are trying to avoid problems. So my question is, 
how much latitude do you have within your communities to put a 
plan together that includes transportation projects and so 
forth without statutory change? That is, if you were to be 
really creative--and I know you have got a timing problem here, 
a cycle problem, you have got 2020 for one plan and 2010 for 
another, I know that is kind of a problem that exists in each 
of your areas--but if people got together and said we just want 
to solve this thing, build highways and build our 
transportation projects but we also want to adhere to the 
provisions of the Clean Air Act, and even though the SIP date 
is different than the transportation plan date and so on, how 
much can you do this on your own without having to get approval 
from Washington? Where there is a will I generally think there 
is a way. But can you do that or what assistance do you need?
    Mr. Pisano?
    Mr. Pisano. We have the capacity, and have in fact done it. 
I indicated in the first part of my testimony that we in 
southern California, with an extreme basin and several other 
basins that are serious basins, we have put together programs 
that get us to attainment, both attainment for air quality and 
transportation plans that conform. We have had to radically 
change the mix of program strategies and projects within our 
region. Over the past 20 years, there has been a transformation 
and that transformation continues. And the provisions in the 
statute, as I have noted, have been an encouragement for us to 
do that.
    Senator Baucus. I don't think you can do it.
    Mr. Pisano. Pardon?
    Senator Baucus. You think you can do it?
    Mr. Pisano. Well, we have done it. Now we have to continue 
moving forward and making progress in those strategies. We are 
going to need your help on those strategies, no question about 
it.
    Senator Baucus. Mr. Snow?
    Mr. Snow. I would just like to add on to that. It can be 
done. We have done it in Las Vegas. But the regulations say 
that we have got to update our regional transportation plan at 
least every 3 years. So while we may be able to demonstrate 
conformity in one 3-year interval, we may have so much growth 
and so much increase in vehicular miles travelled that when it 
comes time to update that transportation improvement program 
and that regional transportation plan that looks out 20 years, 
we may not be able to do it and we may be in a lapsing 
situation.
    Senator Baucus. But in talking to EPA about all this, maybe 
talking to your congressional delegation, can you work out that 
problem?
    Mr. Snow. Yes.
    Senator Baucus. Mr. Stephens?
    Mr. Stephens. Yes, Senator. We are the ones that are the 
longest away from it I guess, March of 2000 is when we are 
aiming at it now. But we fully expect to achieve that under the 
current statutes and regulations as they exist. It is extremely 
difficult, as you know, but it is achievable.
    Senator Baucus. But in a way that does not delay projects?
    Mr. Stephens. Projects are certainly going to be delayed. 
We cannot build everything we want to build. We cannot lay down 
every road we want to lay down, we cannot build every transit 
line we would like to build under the current regulations. We 
can argue about that a lot about what we should do and 
shouldn't do. But it can be achieved under the current 
guidelines, with difficulty.
    Senator Baucus. I assume you would all give the same 
answer, that some projects are delayed. The question is, are 
the delays unreasonable in your view?
    Mr. Pisano?
    Mr. Pisano. If I might note, we are not delaying any 
projects within our region, Senator. The issue of attainment is 
one that is not only supported by this Congress but also 
supported by the residents in our region. They want attainment 
programs.
    Senator Baucus. Mr. Snow?
    Mr. Snow. We could benefit and projects would not be 
delayed if we had more flexibility under the current regulatory 
process.
    Senator Baucus. Who has to give you that flexibility?
    Mr. Snow. The Environmental Protection Agency through the--
--
    Senator Baucus. And didn't you say you could work that out?
    Mr. Snow. Well, we think it is a cooperative process.
    Senator Baucus. I understand. I understand.
    Mr. Carlson?
    Mr. Carlson. We were a nonattainment area in the 1970's and 
1980's. We are now a maintenance area. The problem really is 
that the start and stop character of these regulations that 
have been put out in June have actually a discriminatory effect 
against the States. No one is saying we have to stop design, 
right-of-way acquisition. What they are saying is we won't pay 
for it. It seems strange to me.
    Senator Baucus. I see my time has expired. But my guess is 
that in most cases, with a little foresight, a little 
creativity, these things can be worked out without any 
unreasonable delay in projects. That is my guess. But it takes 
work. Thank you.
    Senator Chafee. Senator Voinovich?
    Senator Voinovich. Mr. Carlson, if I hear you correctly in 
terms of the reformulated gas situation, basically they are 
anticipating probably higher standards that you are going to 
have to comply with and therefore want you to get started with 
doing the initial things that are necessary to make it happen. 
It appears to me that the State Implementation Plan and the 
negotiation over it has a lot to do with the whole business of 
conformity. If you cannot work that out with the EPA, then you 
are not going to be conformed to the standards. Would you care 
to comment on that?
    Mr. Carlson. Our difficulty is in the 10-year period beyond 
2010 when we will essentially have our transportation plan 
being the conformity vehicle to stay within the SIP budget. 
Reformulated gasoline at any time during the first 10 years 
will do that.
    Senator Voinovich. My other question is, how does the Bond 
bill do a better job than what the agency has done in terms of 
their new regulations?
    Mr. Carlson. The Bond bill would put the conformity 
determination back to where it was before the March 2 court 
decision. What we really had then was the ability to have a 
continuous program of improvements, including preliminary 
engineering design and right-of-way acquisition, that we are 
really kept from doing with Federal funds. Those States that 
have enough money of their own can continue to advance 
projects, those States that rely on the Federal Government for 
a match for all their activities in the highway area cannot do 
that. So it would put the conformity process back to where it 
was negotiated before the March 2 court decision.
    Senator Voinovich. Does anyone else want to comment on 
that?
    [No response.]
    Senator Voinovich. Fine. Thank you, Mr. Chairman.
    Senator Chafee. Senator Inhofe?
    Senator Inhofe. [assuming the Chair]. Thank you, Mr. 
Chairman.
    First of all, Mr. Carlson, Neil McCaleb has commented very 
favorably on your performance and what you have done in our 
neighboring State of Kansas. I think all too often people come 
here thinking we don't have an idea of the frustration you go 
through at either the local level or the State level. Of the 
four of us here on this committee, three of the four have been 
Governors, Senator Voinovich and I served as mayors of major 
cities. And so we understand what some of these mandates are, 
the confusion of the conformity that is imposed upon us. I just 
want you to know that you do have people up here who do 
understand these problems.
    You have called for the enactment of the Bond bill but you 
also say that it does not solve some of the old problems. Could 
you elaborate a little bit on what is not resolved by the Bond 
bill.
    Mr. Carlson. I think the time gap between the State 
Implementation Plan's budget and the years covered by Kansas 
City's Long Range Plan is one of the major ones for us. Also, 
it is difficult to see how some of the criteria that are in the 
Clean Air Act and the subsequent ISTEA that was passed in 1991 
relate. This convoluted process can create a stop and start 
situation, and can seriously impact safety. So I think those 
issues should be addressed.
    Senator Inhofe. Well, this is a whole committee, less the 
Chairman right now, meeting and the reason is we are dealing 
with two subcommittees, one chaired by Senator Voinovich, 
transportation, and one chaired by myself, the air. What I 
would like to ask you to do is submit to us legislative 
language, help us draft something that will resolve some of 
these problems. If you could do that for the record.
    I would like also to get one brief comment from each of you 
in terms of supporting the Bond bill. Mr. Carlson, you have 
already committed yourself.
    Mr. Stephens, you said in conclusion that you would ask 
Congress and this committee to move cautiously in considering 
changes to the transportation conformity provisions. Do I 
interpret that as you do not support the Bond Bill?
    Mr. Stephens. The details of the Bond bill I am not 
absolutely familiar with, to be perfectly honest. The issue is 
always one of you have got your rules in place now, if we give 
enough leeway to our local governments and others, including 
myself, then we will begin to slip back from our opportunity to 
achieve conformity and meet the Clean Air Act standards.
    Senator Inhofe. So you do not oppose the Bond bill at this 
time?
    Mr. Stephens. Not at this point in time. I would have to 
read it in more detail.
    Senator Inhofe. And the other two of you, how do you stand 
on the Bond bill?
    Mr. Pisano. At this point in time, grandfathering is not 
our issue. The issue, as we see it, is what is the relationship 
between transportation projects and programming and what 
incentives does it provide to encourage the region to get to 
attainment. Attainment is our issue. And all the help that we 
need throughout the Federal establishment and with our State to 
keep that attainment progress is the fundamental issue, and 
that is what we would encourage Congress to keep its eye on.
    The other issue is we have got to have the Federal 
Government play its fair share, and that's the area that we 
would encourage this committee to look at, that and this timing 
issue on plans.
    But the grandfathering hasn't been, nor do we want it to 
be, an issue in our regions, Senator.
    Senator Inhofe. How about you, Mr. Snow?
    Mr. Snow. Grandfathering is not an issue, either. However, 
we would support the Bond bill because, just as an example, in 
1995, Clark County submitted our State Implementation Plan to 
the Environmental Protection Agency, and to date we have not 
heard back from the EPA on whether they are going to approve 
our State Implementation Plan. If we can't get the EPA to act 
on a very timely basis, at least on emission budgets associated 
with the State Implementation Plan, then definitely we would 
support the Bond bill because of the grandfathering issue.
    Senator Inhofe. I'm sure I speak for Senator Voinovich, as 
well as myself, when I ask you to submit to us ideas, things 
that from your perspective, that would be helpful to you on all 
these subjects that we've been talking about.
    I do have further questions, but I will submit them for the 
record, as well as questions for the third panel, in that I 
have another committee that I have to go to.
    Senator Lautenberg?
    Senator Lautenberg. Thanks very much, Mr. Temporary 
Chairman.
    I want to point out that grandfathering is a big issue with 
me. I have six little grandchildren----
    [Laughter.]
    Senator Inhofe. Senator Lautenberg, if you would yield, I 
have seven.
    [Laughter.]
    Senator Lautenberg. I have seven on the way.
    [Laughter.]
    Senator Inhofe. I'll have eight in October.
    Senator Lautenberg. I want to point out that the reason I 
say that has a modicum of seriousness about it, and that is 
that sometimes a highway project can ease things, but the 
consequence of less than a satisfactory ambient air standard 
can make a heck of a difference.
    Mr. Pisano just happened to pull up some statistics from a 
study done in the Los Angeles area, and your State is so big 
that I didn't know if your particular district includes L.A. 
itself?
    Mr. Pisano. Yes, it does, Senator. I noted that it includes 
the South Coast Air Basin.
    Senator Lautenberg. Anyway, what is said--and this is a 
report that was developed by the minority staff and the House 
Committee on Government Reform, done in March--they said that 
the risk of getting cancer from air toxics in the Los Angeles 
area, and I'm not precise on what it is, most conservative, is 
426 persons in a million. The goal of the Clean Air Act is one 
person in a million. Sixty percent of the Los Angeles air 
emissions come from, they say, cars and trucks. I don't know 
whether that's a familiar number to you.
    But the fact is that it is a consequence of some 
significance. My friend, Senator Inhofe, talked about the four 
over there, and I felt a little left out, having served in 
Government and so forth, and my service was perhaps of no 
consequence. I ran one of America's largest successful 
companies before I came here, but business sometimes doesn't 
relate to things of importance as Government does.
    But the fact of the matter is that as we plan these 
projects--and I'm looking at Senator Bond's bill very 
carefully; I have respect for his knowledge and his experience. 
I am probably not going to be supporting it because I'm 
concerned about what constitutes ``appropriate conformity.'' 
But as we plan these projects, we have to look out a pretty 
good length of time, a long timeline.
    Pat Moynihan--Professor Moynihan, realistically--from this 
committee, not here today, makes comments frequently about what 
the consequence of the National Highway System development in 
the 1950's meant to our society. And I characterize, rather 
than quote, what he said, and that is that it helped the 
abandonment of the cities, that people left the cities because 
they didn't want the wear and tear and the cost, etc. So they 
got out of town.
    Well, part of what we have to do--and this is not a hearing 
on transportation policy per se, but it certainly has to 
include that--when we look out at the timeline necessary, I 
know it does, Mr. Carlson, get to be kind of a nuisance when 
you're in the middle of getting things done. You used the term 
``stop and start.'' Unfortunately, this is a dynamic that we're 
working with, and we learn things all the time.
    So how do we ensure that the projects that we're doing 
today--in Atlanta, Mr. Stephens, in my old days I used to have 
a nice operation down there called ADP, near the river, and we 
do a lot of business around the country, in the Los Angeles 
area as well--how do we ensure that the planning is 
sufficiently developed that it would include the long-range 
implications of the air quality requirements at the same time 
as we do our planning?
    Mr. Pisano. Senator, if I might address that, I noted that 
the conformity plus the financial constraints plus the 16 
factors transformed transportation decisionmaking in our 
region. We've developed performance objectives for safety, 
Senator Bond; we've developed performance objectives for air 
quality, Senator Lautenberg; mobility, etc., and also for 
environmental justice. Those objectives are what we evaluate 
every single project, program, and strategy against within our 
Basin. Finally, we ascertain whether or not we can afford it 
within the time period.
    We make those tradeoffs over a 20-year time period on air 
quality, health impacts, and safety from transportation. And we 
are moving forward the most efficient and effective strategy 
within our Basin over a 20-year time period.
    The laws you've created, I want to commend you for. You 
have sent the right signals to us. You have also given us the 
flexibility and the right incentives to put them together. Now 
the question is, we need continued Federal involvement, and I 
want to continue to emphasize that we need the Federal 
Government; not just fund grants from public works, but we need 
the active engagement of Federal agencies, and the actions and 
emissions that you control federally, for us to keep on track 
for those--not only the transportation plans, but air quality.
    Senator Lautenberg. Mr. Chairman, I've run over my time.
    Senator Chafee [resuming the Chair]. Senator Bond?
    Senator Bond. Thank you very much, Mr. Chairman. Let me ask 
unanimous consent to incorporate in the record the statements 
of support for S. 1053, to which I referred earlier.
    Senator Chafee. Fine.
    Senator Bond. I want to thank this panel. There's nothing 
like having some experts who are working on this subject to 
give us their practical views, and that's very helpful.
    For Mr. Stephens, I'll tell you, I'll give you a copy of 
the bill and you can take it home and read it.
    Mr. Stephens. All right.
    Senator Bond. It says, ``Notwithstanding any other 
provisions of this section, the following provisions of title 
40, Code of Federal Regulations, as in effect on March 1, 1999, 
are incorporated in the act.'' It cites section 93 where they 
have the grandfathering.
    So it's not brain surgery. It's a start, and what you all 
are giving us is designed to help us flesh out--or perhaps 
flush out--what we need to do to resolve these problems.
    I ask my staff to put up a couple of charts from the 
Federal Highway Administration. They were mind-boggling when I 
first looked at them.
    I understand this is a fair representation of the time 
process for getting approval of a highway project, potentially 
running out to 15 years; is that--Mr. Carlson?
    Mr. Carlson. I'd answer that. In an urbanized area, that's 
probably pretty close. In rural areas, it's not quite that 
stringent.
    Senator Bond. All right. And so under the grandfathering 
provision as it was in effect prior to March 2, you had all 
these steps; you had up to 8 years, culminating not only in a 
TIP and a STIP, but complete the NEPA process and all, and at 
that point grandfathering could occur. Then you go to final 
design, and right away, acquisition, authorization for 
construction, PSE approval, highway funding grant. In other 
words, you're 8 years down the line, and at that point the rule 
which EPA discussed and had comment on and which they said made 
sense and protected the environment, then allows you to 
continue and get the right-of-way acquisition done, if you've 
been in conformity up to that point. Is that correct?
    Mr. Carlson. That's correct.
    Senator Bond. Now, Mr. Stephens, if I understand you right, 
you're saying that if that court decision hadn't come along and 
said that somewhere after Step 5 in Atlanta, that because 
situations had changed, even though you previously had the 
approval of EPA, if that decision hadn't come along and stopped 
the projects, Atlanta and Georgia would have stopped their 
efforts to comply. They would have been slothful, neglectful, 
and irretrievably hard-headed, and would not have moved 
forward. Is that your characterization?
    Mr. Stephens. Senator, that's not exactly how I would 
characterize the situation.
    [Laughter.]
    Mr. Stephens. What I would say to you is that they would 
have used other determinants for decisions, other than clean 
air and congestion.
    Senator Bond. Are there other enforcement mechanisms to 
enforce clean air? Are there other sanctions available to EPA 
that can be imposed on the area, had you been able to continue 
with those grandfathered projects?
    Mr. Stephens. Not that I'm aware of at this point in time, 
Senator. The ultimate sanction on the community, my assumption 
would be, is failure. In an economic business sense, when 
people find it not very attractive in terms of the quality of 
life to relocate their businesses and families into your area, 
that becomes the ultimate measurement of success or failure. 
But sometimes you're way down the line before that one becomes 
a reality or before it hits home. In Atlanta, it took us 20 
years to hit that point.
    Senator Bond. I understand Mr. Pisano said that you need 
the continued encouragement. I might ask Mr. Snow and Mr. 
Carlson, are your areas and your States going to continue to 
work toward compliance should the grandfathering be 
reauthorized--not mandated, reauthorized--as I propose in S. 
1053? Would you continue in Kansas to try to clean up the air 
that you're blowing into Missouri?
    Mr. Carlson. Absolutely, Senator.
    Senator Bond. Boy, that's a relief.
    [Laughter.]
    Senator Bond. Mr. Snow?
    Mr. Snow. Yes, Senator, that's correct. And I also might 
add that there are linkages due to the multimedia regulatory 
authority of the EPA. If we have a problem with air, it can 
indirectly bleed over into problems with water in terms of 
approval for growth going forward. So there are other 
sanctions. ``Sanctions'' is probably the incorrect word, but 
there are other ways that we would need to be responsible.
    Senator Bond. Mr. Chairman, I thank this panel. I express 
my appreciation to all the panels. I apologize that I have an 
11:30 appointment; I didn't realize we were going to have so 
much useful information, and I will look forward to seeing the 
testimony of Mr. Replogle and Mr. Kinstlinger, and I will have 
questions for the record. I very much appreciate the 
participation of the panels.
    Senator Chafee. All right, fine. I would like to join in 
thanking the panel. Thank you very much for being here.
    Mr. Pisano, you're the long-distance traveler, I believe, 
so we particularly appreciate your being here.
    Mr. Pisano. Thank you, Mr. Chairman.
    Senator Chafee. Now let's have Mr. Replogle and Mr. 
Kinstlinger come forward.
    All right, Mr. Replogle, you are the man that argued the 
case?

STATEMENT OF MICHAEL REPLOGLE, FEDERAL TRANSPORTATION DIRECTOR, 
                   ENVIRONMENTAL DEFENSE FUND

    Mr. Replogle. In response to your question, Mr. Chairman, 
no, I'm not the attorney who argued the March 2, 1999 U.S. 
Court of Appeals case. The man who argued the case is Robert 
Yuhnke, and he has stepped out of the room and will be joining 
us momentarily.
    Senator Chafee. All right, why don't you proceed?
    Mr. Replogle. My name is Michael Replogle, and I am Federal 
Transportation Director of the Environmental Defense Fund.
    I would like to particularly address the issue that Senator 
Lautenberg raised about what went wrong in Atlanta. I think 
Atlanta clearly shows why the regulations that were overturned 
by the court in the March 2 decision weren't working and 
shouldn't be reinstated.
    The rule that was struck down by the court allowed projects 
that were planned in many cases years ago to receive new 
funding agreements, long after it was clear that those projects 
and the larger systems they comprise would exacerbate 
violations of the air quality standards. Nearly all of the 
available resources in some metropolitan areas like Atlanta 
were committed to projects that would worsen traffic growth, 
pollution, and sprawl, while leaving no resources available for 
air quality improvement projects at a time when the region was 
facing a serious health crisis due to air quality violations.
    In Atlanta, as you've heard several previous speakers say, 
the Clean Air Act conformity process and this March 2 court 
decision have encouraged better regional problem-solving. This 
is also the region of America that has been most affected by 
this March 2 court decision, with nearly $700 million worth of 
projects affected. It is the area that is expected to be in a 
conformity lapse longer than any other area. It is the area 
that, while being exposed to these conformity lapse problems 
longer and deeper than other areas, is in fact gaining the 
greatest benefit from the March 2 court decision and the new 
guidance that DOT and EPA have put forth in the wake of that.
    Georgia officials knew back in 1995 that their 
transportation plan for Atlanta couldn't conform with the 
emission budget in the State's own Air Quality Plan for 1999. 
There were many solutions available to the region to solve 
their conformity problem. These include adopting cleaner fuels 
in vehicles; developing better vehicle inspection and 
maintenance; looking at smarter growth incentives and 
strategies; looking at transportation investments that could 
cut traffic growth and expand transportation choices.
    They also include strategies to reallocate the emission 
budget in the State Implementation Plan to make up for more 
emissions growth on the transportation side by doing more to 
clean up old, dirty power plants, so that the total amount of 
air pollution would not exceed the amount that the region has 
the capacity to absorb without compromising public health.
    Instead of pursuing these measures that were available and 
that have worked in many other metropolitan areas, 
decisionmakers in Atlanta chose to pursue a loophole. Though 
half of Atlanta's air pollution comes from car and truck 
tailpipes, the now-overturned EPA regulations allowed the 
approval of nearly $1 billion worth of new sprawl and traffic-
inducing roads, even after the transportation plan was found to 
grossly exceed the emission limits set in the Georgia plan for 
1999.
    The poster here to my right shows the location of those 
grandfathered road projects in metropolitan Atlanta. It shows 
that a doughnut of investment in roads at the outer periphery 
of the metropolitan area, in places where new road capacity 
will clearly induce a great amount of new sprawl development 
that will exacerbate both the amount of traffic and the amount 
of air pollution.
    In December 1997, the EPA Regional Administrator wrote to 
USDOT saying that there were many of these projects that should 
not be approved, they had not been approved, and that these 
issues needed to be more fully resolved. This whole conflict 
over project grandfathering escalated to the Council on 
Environmental Quality in the White House.
    With 6 years' worth of road construction activity exempted 
through the loophole that the Bond bill would reopen, Georgia 
roadbuilders were essentially trying to stick the bill for 
pollution cleanup onto everyone else. It was Atlanta's 
reputation for a high quality of life that took a hit instead. 
The massive roadbuilding effort in Atlanta, permitted by the 
rules that have now been thrown out, didn't solve the traffic 
problems or the air quality problems; instead, it brought the 
longest commutes in America and increased air pollution 
violations. The number of air pollution violations has been 
going up in Atlanta, despite the cleaner fuels and vehicle 
techologies.
    Atlanta business and civic leaders, however, got a wakeup 
call this year and established a new regional transportation 
authority to better manage growth, transportation, and air 
pollution. This is really a Clean Air Act conformity success 
story in the making. This is working the way that the framers 
of the law intended. It is helped by the March 2 court ruling.
    Last month, on June 18th, Federal, Georgia, and Atlanta 
officials signed an agreement, enforceable in court, 
prohibiting funds for grandfathered road projects until the 
region has a new transportation plan that conforms with Clean 
Air Act requirements. This would not be affected by the Bond 
bill.
    Regional authorities hope to adopt a new conforming plan 
next March, and construction continues on several hundred 
million dollars' worth of roads that had been approved prior to 
the ruling.
    This ruling is bringing Atlanta-area residents better 
transportation choices and cleaner air. Since March, several 
hundred million dollars has been redirected from highway 
projects at the edge of the region into projects that address 
pollution and transportation problems, including buying clean 
buses, building park-and-ride centers, HOV lanes, smart traffic 
signals, traveler information systems, reconstructed bridges 
and intersections, as well as highway safety projects. All of 
these are, in fact, able to go forward during the conformity 
lapse.
    We think DOT and EPA have issued a workable legal guidance 
implementing this court ruling.
    The number of areas of the country adversely affected with 
delays by the court ruling is shrinking, and it is a changing 
list as areas come in and out, mostly staying on the list for 
only a matter of several months while interagency consultation 
works out the problems.
    DOT and EPA are, appropriately, trying to head off future 
problems, before they occur. Thanks to this ruling in March, 
the costs of pollution cleanup from traffic growth won't 
automatically be thrown onto utilities, small businesses, and 
others, by locking in these commitments to pollution-increasing 
road projects many years in advance of when the funding for 
those projects is actually available, as happened here in 
Atlanta.
    Senator Chafee. Mr. Replogle, your time is going on a 
little bit. Why don't you summarize the last part of your 
statement?
    Mr. Replogle. Let me just note that this issue about the 
timing mismatch that has been raised by some of the other 
witnesses is really an issue not about timing. It is an issue 
about how much pollution areas can handle without compromising 
human health. Transportation plan emission budgets, which are 
established in State air quality plans, can be set up in ways 
so that there are opportunities for those emissions to grow. 
There is a capacity in the current system for transportation 
agencies to mitigate air pollution increases due to growth with 
offsetting measures. I would note, for example, in Denver, 
where pollution growth that caused them to break their budget 
was offset by developing cleaner street-sweeping programs to 
capture fugitive road dust.
    So there are ways of solving these problems, and we would 
urge you not to adopt the Bond legislation but to help assure 
that current laws are effectively implemented.
    Thank you.
    Senator Chafee. Thank you.
    Mr. Kinstlinger?

STATEMENT OF JACK KINSTLINGER, VICE CHAIRMAN, AMERICAN ROAD AND 
              TRANSPORTATION BUILDERS ASSOCIATION

    Mr. Kinstlinger. Good morning, Mr. Chairman and members of 
the committee. I am Jack Kinstlinger, Chairman of the Board of 
KCI Technologies, a transportation engineering firm 
headquartered in Maryland. Previously I served as State Highway 
Director in Colorado and Deputy Secretary for the Pennsylvania 
DOT. But today I am here representing the American Road and 
Transportation Builders Association.
    We appreciate this opportunity to discuss the Clean Air 
Act, and I respectfully ask that our full testimony and 
graphics be made a part of the hearing record.
    Senator Chafee. That will be done.
    Mr. Kinstlinger. At the outset I want you to know that we 
share your interest in assuring that all Americans breathe 
clean air. We are not here to suggest that the Clean Air Act 
needs radical overhaul. We would, however, like to suggest some 
badly needed fine-tuning that we don't believe will compromise 
public health. To the contrary, the suggestions that we offer 
will help prevent injuries and save lives as they speed up 
project delivery of environmentally sound projects.
    We have five concerns with the conformity process.
    First of all, the process is causing unnecessary delays in 
highway projects that have already passed every environmental 
test, and delaying highway improvements hurts and injures 
people. According to USDOT research, poor road conditions or 
obsolete road and bridge alignments are a factor in 12,000 
highway-related deaths each year. That's four times the number 
of Americans killed in accidental fires, and a third more than 
die annually of asthma and bronchitis combined. One can only 
wonder how many more people need to die needlessly because 
congested road conditions impede emergency vehicles, trying to 
get to the hospital, or fire engines trying to get to the site 
of a fire. These also are public health issues, just as real as 
clean air, and they should not be ignored.
    No. 2, the rationale behind the conformity process has been 
demonstrated over the past 9 years to be faulty. The 
infrastructure mix between highways and mass transit in the 
State or region has relatively little impact on air quality, 
less than 1 or 2 percent, regardless of the investment choice 
made. What I am saying is that if a region decides to build all 
transit, or all highways, it wouldn't modify the level of 
pollution by more than 3 or 4 percent. Cleaner fuels, on the 
other hand, cleaner engines, and vehicle inspection can reduce 
pollutant levels by 20 to 100 percent.
    No. 3, conformity needs to be redefined. Federal laws 
should not be forcing a tradeoff between transportation 
improvements and non-transportation energy use and business 
activity. The conformity process is doing that.
    No. 4, the computer modelling used to project mobile source 
emissions provides fantasy numbers. Unfortunately, EPA 
transportation conformity determinations are based on these 
model outputs. Let me focus attention on this point.
    The conformity process requires State and local governments 
to make mobile source emission projections up to 20 years in 
the future. This is absurd. No one knows with certainty what 
State and local economies will be 3 years from now, much less 
12 or 20 years. We can guess, but we don't know what 
demographics are going to be like in 2020. These, however, are 
the type of inputs that go into the modelling.
    Compounding the problem, the models don't account for new, 
cleaner automotive and motor fuel technologies that we know are 
on the horizon and that are going to have major positive 
impacts. From the years that I served as a public official, I 
know that the modelling itself has an error margin of 20 to 50 
percent. If you were to ask EPA or DOT to compare the 1990 
pollution levels projected by these models in 1970 or 1980, 
compared to the actual pollutant levels, you will see errors of 
40 to 50 to 60 percent. This is a modelling exercise of future 
projections, which I think is foolish. And to actually stop 
projects based on the results of this fantasy projection makes 
no sense.
    These problems could be meaningfully addressed if the act 
was fine-tuned to give State and local governments a 5 to 10 
percent margin of error allowance on the mobile source emission 
projections. This would acknowledge, without compromising 
public health from an air quality perspective, the lack of 
precision in the conformity modelling. With this change we 
would not be talking about conformity failures; they would be 
few. Needed highway and transit improvement projects would not 
be needlessly delayed and stopped. Air quality improvements 
from the transportation sector would continue at the same rate 
they would have otherwise.
    Our fifth and last concern is a comment on the March 2 
decision in Environmental Defense Fund v. EPA. This case 
eliminated the grandfathering rule, which was a common-sense 
interpretation of the Clean Air Act that allowed highway and 
transit projects that had met all environmental tests once to 
go forward, even if the area that they are located in 
experiences a subsequent lapse in conformity. It's not 
realistic to require a project to keep on being tested and 
evaluated over and over again.
    This ruling does nothing to improve air quality. It does, 
however, delay projects, which we believe was the intent of the 
EDF. S. 1053, which has been introduced by Senator Bond, would 
restore the EPA grandfathering rule, which struck a balance 
between the need for environmental protection and the need for 
finality in project decisionmaking.
    One thing we must bear in mind is the fact that air has 
been significantly improved since 1970. From 1970 to 1996, 
vehicle miles of travel have gone up by 125 percent. Highway 
emissions and carbon monoxide have gone down 40 percent. VOC 
highway emissions have gone down 58 percent, NOx emissions have 
gone down 3 percent, and particulate matter 38 percent, and 
lead emissions 100 percent. So we have seen a significant 
cleanup of the air, despite a rapid increase in VMT, and that's 
because we have cleaner engines, we have cleaner fuel, and we 
have vehicle inspections. It has very little to do with the 
amount of road improvements or transit improvements that the 
regions are planning.
    In conclusion, the good news is that the conventional view 
that there has not been much progress on air quality, that 
increased auto use is the culprit, and that controlling auto 
use is the solution, is wrong, and the figures show that. EPA 
data clearly shows that the Nation's air is much cleaner today 
than it was in 1970, when the Clean Air Act was adopted, and 
the transportation sector has been at the forefront of this 
success story. As I mentioned, despite a 125 percent increase 
in motor vehicle travel in the U.S. since 1970, there has been 
a real and significant reduction in every transportation-
related emission. These reductions will continue well into the 
future as ever-cleaner vehicles replace older and dirtier ones, 
and the proposed Tier II motor vehicle emission standards on 
gasoline, and sulfur control requirements, both of which ARTBA 
supports, come on line. The fact is that Federal transportation 
conformity regulations have had very little to do with these 
dramatic improvements in air quality. Conformity needs to be 
revisited by the Congress, and that concludes my remarks. I 
thank you for your attention.
    Senator Chafee. Have you met Mr. Replogle, next to you?
    [Laughter.]
    Mr. Kinstlinger. I just did.
    [Laughter.]
    Mr. Kinstlinger. We obviously don't agree on everything.
    Senator Lautenberg. I'm going to leave, but I would thank 
Mr. Kinstlinger for his confirmation of the fact that when we 
first developed clean air legislation, when we first developed 
other environmental legislation, that the results that we see 
are in place.
    Mr. Kinstlinger. Are very encouraging.
    Senator Chafee. All right, fine.
    Mr. Replogle, what do you have to say about what Mr. 
Kinstlinger has to say?
    Mr. Replogle. Well, Mr. Chairman, I have prepared some 
questions and answers which I would like to enter into the 
record. They deal with some of the issues that have been raised 
in Mr. Kinstlinger's testimony.
    In summary, we're still looking at 30 to 50 percent of the 
pollution that forms smog, and that threatens America's health, 
and a major portion of the pollution of small particles which 
also injures or kills thousands of Americans every year, comes 
from cars and trucks. While we are making great progress in 
cleaning up the air, the growth in the amount of traffic 
outpaces the improvements in technology for cleaner vehicles 
and cleaner fuels, and particularly in fast-growing areas. We 
have some areas, like Atlanta and Las Vegas, where the number 
of miles driven every year is growing by 4.5 to 13 percent a 
year, and that's simply outdoing what we need to do to get to 
clean air.
    Technology alone won't solve these problems. We need to pay 
attention to the effects of different kinds of transportation 
investments and incentives and how that affects traffic. Over 
the 20-year horizon of the long-range plan, there are a lot of 
studies showing that we can reduce the amount of traffic growth 
while accommodating the same amount of job and housing and 
population growth, with 10 to 20 or 25 percent less miles 
traveled and hours driven in our cars, and getting us a higher 
quality of life and more livable communities in the process.
    So this is a very cheap way of helping to contribute to 
solving air pollution problems that conformity helps our 
regions consider.
    The issue of models is another one that Mr. Kinstlinger 
brought up. We've gotten significantly better at understanding 
how the effects of different transportation plans and programs 
will translate into transportation system performance and the 
amount of emissions. Doing future forecasts and models is an 
essential foundation to planning for the future attainment of 
air quality. If we don't use models, then there's no way for us 
to manage these systems. We're getting better at it, and I 
think we're learning over time. As we have moved in the last 18 
months to the system originally intended in 1990 with the Clean 
Air Act Amendments, setting emission budgets for attainment, 
making sure that the transportation plans fit with those, the 
``slop'' factor in those models becomes a much less potent 
issue than it was under the transition rules of the law.
    Senator Chafee. Is there anyplace you can cite where they 
have made an aggressive effort to remove extra-polluting 
vehicles from the road--old clunkers, if you want to use that 
term? Who has done that, and have they done it successfully?
    Mr. Replogle. I'm not completely up on how all of these 
programs have played out, but I know that in Southern 
California and in Chicago there have been programs that have 
had some success in creating tradeable emission credits to help 
people meet their clean air goals.
    Senator Chafee. I see Mr. Pisano is still back there. Have 
you done that at all?
    Mr. Pisano. Senator, we have the replacement of older 
vehicles as a transportation control measure. And then the 
State Air Resources Control Board established the disposal of 
older vehicles as a partial offset to some of the trucking 
regulations.
    Senator Chafee. OK, fine.
    Well, I want to thank you both for your testimony. It was 
very clear. I appreciate your having been here. You have been 
helpful to us. Thank you very much.
    [Whereupon, at 12:20 p.m., the committee was adjourned, to 
reconvene at the call of the Chair.]
    [Additional statements submitted for the record follow:]
    Statement of Hon. Barbara Boxer, U.S. Senator from the State of 
                               California
    Mr. Chairman, thank you for holding this hearing today to consider 
the Clean Air Act's (CAA) conformity program.
    In the wake of the enactment of TEA 21 and its $217 billion in new 
transportation spending, a strong CAA conformity program is needed now 
more than ever. The conformity program helps ensure that the nation's 
transportation needs are satisfied without sacrificing our health and 
the air we breathe.
    As you know, Mr. Chairman, California suffers from some of the most 
serious air quality problems in the nation. Approximately 30 million 
Californian's live in counties that don't meet the CAA's health-based 
air standards. The Los Angeles basin, in fact, has the worst air 
quality in the nation.
    The smog and soot that plagues the L.A region may have serious 
health consequences for the approximately 15 million people that live 
there.
    A recent study, for example, found that air pollution in the L.A. 
region may impair children's long-term breathing capacity, leaving them 
vulnerable to respiratory disease and underdeveloped lungs. Asthma, 
which is exacerbated by air pollution, is also on the rise.
    Against these air quality concerns, the transportation demands of 
California's burgeoning population are tremendous. From 1992 to 1997, 
the use of California's roads and highways climbed 40 percent. During a 
similar time period, traffic congestion in our urban areas has 
increased substantially--32 percent in the Bay Area, 29 percent in 
L.A., and 58 percent in San Diego.
    And there is no end to these transportation demands in sight.
    California's current population of approximately 32 million is 
expected to rise to 50 million by the year 2025. To put that increase 
in perspective, it will be as if the entire State of New York picked up 
and moved to California.
    Without careful transportation planning, the demands created by 
this population surge could overwhelm our ability to keep our air 
clean.
    In 1977, Congress had the foresight to recognize that states like 
California would face serious challenges in the areas of air quality 
and transportation planning, and decided to link the two by enacting 
the CAA conformity program. Congress again recognized the importance of 
the program by substantially strengthening the program in the 1990 
amendments to the CAA.
                               __________
Statement of Robert Perciasepe, Assistant Administrator, Office of Air 
             and Radiation, Environmental Protection Agency
    Thank you, Mr. Chairman and Members of the Committee, for the 
invitation to appear here today to discuss transportation conformity. 
As you know, conformity in its current form was required by Congress in 
the Clean Air Act Amendments of 1990. Conformity requires areas that 
have poor air quality now or had it in the past to examine the long-
term air quality impacts of their transportation system and ensure that 
it is compatible with clean air goals. These areas must assess the 
impacts of growth and decide how to manage it. Anticipating the future 
impact of today's decisions results in better public policy. Just as 
knowing the nutritional content of foods allows each person to choose a 
diet that balances satisfaction and health, knowing the air quality 
impacts of transportation decisions allows each area to choose 
transportation projects that balance growth with the health of the 
community.
    Although our air quality has been improving, many cities in the 
United States still suffer unhealthy levels of ozone, more commonly 
known as smog. Nearly 100 million people live in the 38 U.S. areas that 
are still not attaining the 1-hour ozone standard. And despite the 
significant advances in producing cleaner cars and cleaner fuels, cars 
and trucks still account for almost half of the overall emissions in 
urban areas because we're driving more miles every year. We've gone 
from just over one trillion vehicle miles per year in 1970 to over two 
trillion miles per year today. These trends are continuing the number 
of vehicle miles traveled has been steadily increasing about 2 percent 
every year, and is as high as 5 percent in the fast-growing cities in 
the south and west.
    The growth in vehicle traffic not only worsens air quality, but 
also causes severe congestion. This leads to increased travel time for 
motorists and slower distribution of goods throughout our metropolitan 
regions. Many people think that traffic congestion can be relieved by 
adding more road capacity: either building more roads or widening the 
existing ones. As we have discovered, this is not always the case. In 
areas with poor air quality, the question of how to improve traffic 
flow in a way that will not exacerbate air pollution must be faced 
head-on.
    Conformity requires state and local governments and the public to 
consider the air quality impacts of the planned transportation system 
as a whole and over the long term before transportation plans and 
projects are implemented. Billions of dollars every year are spent on 
developing and maintaining our transportation systems. Conformity helps 
ensure that these dollars are not spent in a way that makes air quality 
worse. Conformity requires areas to consider the impacts of their 
decisions up front.
    Though conformity was included in the 1977 Clean Air Act, it wasn't 
clearly defined until the 1990 Clean Air Act amendments. The amendments 
strengthened and clarified the conformity requirement and delegated to 
the Administrator of EPA the responsibility for writing a regulation to 
establish the criteria and procedures for conformity. The Department of 
Transportation (DOT) must concur with all conformity rules. We 
published the first rule in November 1993. We streamlined and clarified 
rule in August 1997, based on extensive discussions with state and 
local air pollution officials, transportation planners, and other 
stakeholders, as well as the experience of both DOT and EPA employees 
in the field. To date, we believe conformity has been successful in 
preventing transportation planning decisions from contributing to new 
violations.
    Conformity works by reinforcing a state's air quality plan and 
keeping areas on track in meeting their air quality goals. A state's 
air quality plan establishes emissions ceilings or budgets for the 
various types of sources that make air pollution. Conformity makes 
state and local agencies accountable for keeping an area's total motor 
vehicle emissions within the budgets established by the air quality 
plan. Communities have choices about how to address their 
transportation and air quality needs. An area can choose to build 
transportation projects that increase emissions, as long as the net 
effect of the total system is consistent with the state air plan. Most 
areas have been able to continue adding to their transportation network 
and still stay within their clean air budgets.
    In several areas, conformity has been at the core of discussions 
surrounding growth, congestion, air quality, and quality of life. In 
Atlanta, Georgia, one of the fastest growing areas in the country, the 
impacts of growth have been front and center for everyone from 
residents to employers to the Governor's office. Since 1996, the 
Atlanta Journal-Constitution has been featuring editorials and front 
page articles about conformity, traffic, air quality, and growth. 
Recent articles in Atlanta have focused on the concerns of business and 
political leaders, worried that Atlanta may no longer be competitive 
with other American cities in promoting economic opportunities because 
of its traffic congestion and air quality problems.
    According to a 1999 Georgia State University report, if Atlanta 
develops the reputation as a ``dirty city,'' the region could lose 
thousands of jobs and suffer economic losses in the billions of 
dollars. Atlanta's inability to conform its transportation system to 
its air quality goals, and the ensuing public debate over growth in 
Atlanta, has produced a shift in the way both government and 
corporations do business.
    Partly due to issues highlighted by the conformity process, Georgia 
has developed new institutional processes for solving transportation 
and air quality problems. Earlier this year Georgia Governor Roy Barnes 
proposed and the legislature created a regional transportation super-
agency for urban areas of the state. The Georgia Regional 
Transportation Authority is a 15-member board that has authority to 
oversee transportation and air quality planning, and to develop 
commuter rail, light rail, and other mass transit options.
    Also, Atlanta-based telecommunications firm Bell South announced 
early this year that it is consolidating 13,000 employees from suburban 
offices to three new business centers located in the city along a 
transit line--``a major corporate effort to directly address Atlanta's 
traffic congestion and pollution,'' according to the Atlanta Journal-
Constitution.
    Like Atlanta, Denver has also grappled with the issues of growth 
and air quality. In 1994, Denver could not demonstrate how its 
transportation plan would meet air quality goals, so the Colorado 
legislature decided to revise the goals and increase the level of 
permissible particulate matter. This action resulted in widespread 
public debate about the health effects of increased particulate matter 
and how Denver should grow. Subsequently, the city adopted measures 
such as reduced street sanding and sweeping to decrease particulate 
matter in the short term. In the longer term, the public debate about 
growth led to the decision to establish a growth boundary, focusing 
growth in the core area.
    Conformity has been important in large, fast growing areas, but 
also in smaller areas as well. Conformity is a key reason that the Cape 
Cod Commission in Massachusetts added air quality to its Regional 
Policy Plan as an issue to be considered in guiding regional growth.
    Conformity links transportation planning with air quality planning. 
Before conformity was required, these two planning processes were done 
separately, yet both transportation and air quality planners had to 
make assumptions about future growth and future transportation 
decisions. With conformity, air quality and transportation planning are 
coordinated through consultation. Each process informs the other, and 
both have improved as a result of the consultation that the conformity 
rule requires. Because of conformity's consultation requirement, the 
quality of information that planners have to work with has improved, 
the relationship between air quality and transportation planners have 
improved, and modeling has improved. We know from Harvard's recent 
conformity study that consultation has led to better working 
relationships among transportation and air quality planners, as well as 
better understanding and appreciation of the goals and challenges faced 
by each discipline.
    Conformity has also improved transportation and air quality 
modeling by improving the data available, making the same data 
available to both sets of planners, and better integrating 
transportation and air quality analyses. Improvements in consultation 
and modeling seem to have had a synergistic effect, because more 
interagency consultation has led to improved confidence in modeling 
results. According to the Harvard conformity study, conformity related 
improvements in planning methods are valuable not only for 
consideration of air quality improvement programs but also for other 
planning purposes.
    Conformity has had an impact on the development of both 
transportation and air quality plans. It has led some communities to 
reconsider the timetables for and scale of some transportation 
projects, particularly in high growth areas such as Atlanta, Denver, 
and Houston.
    Charlotte, North Carolina also grappled with meeting conformity 
and, as a result, changed its transportation plan with broad public 
support. North Carolina's population growth is twice the national 
average, and the amount of vehicle miles driven per year is growing 
three to five times faster than the population is growing. In 1997, 
Charlotte couldn't pass the conformity tests, and Charlotte's 
Department of Transportation realized it needed an alternative to 
continued congestion. They created a transit and land use plan. Local 
officials and the community overwhelmingly supported the plan because 
it addressed quality of life issues for the city. Voters in Charlotte 
passed a referendum to raise $50 million per year for the new transit 
plan. By adopting this plan, the city was able to meet conformity and 
will have a transportation system that preserves healthy air.
    Conformity has also had an impact on the other half of the process, 
that of air quality planning. Having to demonstrate conformity prompted 
some areas to adjust or amend their air quality plans to accommodate 
more growth in vehicle travel. Areas must demonstrate conformity for 
the entire 20-year timeframe of the transportation plan, which has been 
challenging in some high growth areas. However, EPA believes that 
analyzing the entire 20-year transportation planning horizon is a 
fundamental tool for achieving the goals of the Clean Air Act. Congress 
clearly intended that areas maintain healthy air even after they have 
attained the air quality standards. Considering the impacts for the 
entire length of the transportation plan ensures that long-term motor 
vehicle emissions stay at or below attainment levels and public health 
is protected. EPA will assist areas that want to revise their air 
quality plans to more directly address future transportation growth. 
Some areas, such as Denver, Salt Lake, and Portland have extended their 
air quality planning process to take the 20-year length of the 
transportation plan into account. These areas are looking farther out 
into the future to ensure their air quality will still be healthy even 
as they grow, adding population, cars, and more highways.
    Conformity has prompted areas to adopt other projects and programs 
that have an air quality benefit, such as transportation control 
measures (TCMs); zoning and other land use measures; additional mobile 
source emissions control measures, such as inspection/maintenance 
programs or clean fuel programs; and stationary source emissions 
control measures. Conformity also ensures that transportation actions 
which are part of a clean air plan get the funding they need, so that 
planning for air quality doesn't just happen on paper.
    I would now like to address the recent decision by the Court of 
Appeals for the D.C. Circuit regarding a lawsuit that the Environmental 
Defense Fund had filed against EPA. As a result of the court's decision 
in March, certain features of how conformity is implemented had to 
change. However, we did not appeal the court's decision because we've 
developed a workable approach with DOT and the Department of Justice 
that minimizes the impact to areas as they implement the court's 
decision, and that is legally defensible. In addition, we believe that 
the court decision is more protective of public health than our initial 
regulation.
    For example, the court addressed what transportation projects can 
proceed when an area cannot demonstrate conformity. When an area fails 
its conformity tests, it cannot proceed with new projects until it 
fixes the problem, but construction projects that have already been 
funded can continue. In our 1993 conformity rule, projects were 
``grandfathered'' once they had received National Environmental Policy 
Act (NEPA) approval. At that time, we believed that grandfathering at 
the point of NEPA approval best balanced public health with 
transportation goals. Unfortunately, since 1997, it has become clear 
that this grandfathering provision could allow a large number of 
transportation projects to advance even though more recent planning 
projections may have been developed.
    The approach that we developed in response to the court decision 
better protects air quality. Under the court decision, a project can 
continue if DOT has made a commitment to fund it, that is, has 
authorized it for construction. The step authorizing construction comes 
after NEPA approval. With this interpretation, there is still a point 
where a project is ``safe'' from disruption by air quality concerns. 
Projects far along in the process won't be halted. But, by proceeding 
only with those projects that have been funded for construction, we 
avoid creating a large pipeline of projects that could be built even 
when we know that they may contribute to an air quality problem and 
further prevent an area from demonstrating conformity.
    This change in the former grandfathering provision only affects 
those areas that cannot demonstrate conformity. At the present time, 
there are only seven such areas, five of which will resolve their 
conformity problems in just a few months.
    The court's decision also addressed using air quality plans that 
have been submitted to EPA, but not yet approved. EPA has taken action 
to minimize any short-term disruption to existing conformity 
determinations. We have developed a long-term approach that will allow 
air quality plans to be used for conformity soon after they are 
submitted to EPA.
    Along with the Intermodal Surface Transportation Efficiency Act 
(ISTEA) and now the Transportation Equity Act for the 21st Century 
(TEA-21), conformity has and will be part of a coordinated movement 
toward considering the social, economic, energy, and environmental 
goals of planning our nation's transportation system. Conformity has a 
number of ``good government'' benefits, such as better communication 
between air and transportation agencies; better air quality plans and 
transportation plans; more informed decisionmaking; opportunities to 
inform the public about transportation impacts; and improved public 
participation. While the recent court decision called into question 
some of the procedures by which we have implemented the conformity 
provisions of the Clean Air Act, we have been able to revise those 
procedures in a reasonable and measured way. We believe that the 
conformity program will continue to be a valuable tool for protecting 
public health.
    Thank you again for this opportunity to discuss our program with 
you. I would be happy to respond to any questions that you may have.








  Responses of Robert Perciasepe to Additional Questions from Senator 
                               Lieberman
    Question 1: The issue of how best to protect air quality in the 
context of transportation spending certainly has been a subject of 
significant analysis and debate. Some argue that a major boost in 
public transit investments is required, while others maintain that 
reducing traffic congestion by expanding roads will help solve the 
problem. I believe the answer lies somewhere in the middle.
    That said, however, I am interested to know what studies have shown 
in terms of whether expanding roads reduces emissions over the long 
term. My understanding is that while over the short term, road building 
can reduce local pollution by mitigating congestion, over the longer 
term bigger roads lead to increased vehicle miles traveled. Essentially 
it seems as though the expression ``if you build it they will come'' is 
apt. What is your view of whether expanding road building necessarily 
leads to reduced pollution?
    Response. The question of whether expanded road capacity reduces or 
increases vehicle emissions is complicated by many factors. These 
factors include the relationship of highway expansion to increases in 
vehicle miles of travel (VMT) as well as the effect on specific traffic 
dynamics (such as vehicle speed and relative accelerations). In 
answering the question of ``whether expanding road building necessarily 
leads to reduced pollution,'' we will address the following three 
issues: a) research into the effects of highway capacity on increases 
in VMT; b) relationships between traffic dynamics, technology 
improvements and emissions; and c) the overall policy implications for 
relative spending on different ``transportation'' solutions.
    A number of recent research efforts have examined the question of 
``induced travel,'' that is, how increased highway capacity may lead to 
short and long run increases in VMT. In 1995, the Transportation 
Research Board released a report entitled ``Expanding Metropolitan 
Highway Capacity: Implications for Air Quality and Energy Use.'' This 
report clearly identified the behavioral and economic mechanisms that 
underlay the theory of induced travel and how transportation facilities 
can influence land use decisions. It was, however, inconclusive as to 
whether increased highway capacity necessarily leads to increased 
emissions and suggested that additional research be conducted in this 
area. It also found that current regional travel demand forecasting 
methodologies (used for conformity analysis) are generally inadequate 
for analyzing the environmental tradeoffs between alternative 
transportation investments.
    Since then, several research efforts have addressed the relative 
impacts of highway capacity expansion on increases in VMT. Two peer-
reviewed studies quantified the relationship between highway capacity 
expansion and increased VMT. Hansen & Huang (1997) estimated 
relationships between VMT and highway expansion in California and found 
significant short-run and long-run effects. Noland (1999) estimated a 
number of models using nationwide data and found similar effects to 
those of Hansen & Huang. Both studies have estimated that in the short 
run a 10 percent increase in highway capacity (measured as lane miles) 
will lead to between 3 percent and 6 percent additional VMT. In the 
long run (four years or more) a 10 percent increase has been estimated 
to lead to between 6 percent and 10 percent additional VMT. Another 
paper (currently undergoing peer review) by Noland & Cowart (1999) used 
data on 70 urbanized areas and found that in the long run a 10 percent 
increase in lane mileage on freeways and arterials results in an 8-10 
percent increase in VMT on those facilities.
    While additional research is needed, these studies suggest that 
expanding highway capacity will increase total vehicle miles of travel 
(VMT). These types of effects are being used by the Department of 
Transportation (DOT) in its Highway Economics Requirements System 
(HERS) to account for traveler responses to reductions in the 
generalized cost of travel as a result of increased highway capacity. 
The HERS model is used to estimate national highway investment 
requirements.
    Heanue (1998) analyzed the impact of various induced travel 
estimates on total VMT growth. Using data from the Milwaukee area, he 
found that between 6 percent and 22 percent of VMT growth is 
attributable to induced travel. Noland & Cowart (1999) find that for 
the Milwaukee urbanized area about 33 percent of VMT growth is due to 
induced travel (assuming trend growth in highway construction, 
population growth and per capita income out to 2010). They also 
estimate that, on average for all urbanized areas in the sample, growth 
in highway capacity accounts for 45 percent of VMT growth on freeways 
and arterials. Noland (1999) also estimated that nationwide, highway 
capacity contributes between 20-28 percent of VMT growth which can lead 
to an additional 43 million metric tons of carbon emissions by the year 
2010.
    The impact of induced travel on emissions of criteria pollutants is 
less clear. Emissions are a function of total VMT and total trips, as 
well as specific traffic dynamics (such as speed and relative 
accelerations). If expanded highway capacity only leads to greater VMT 
with the same traffic dynamics, then it is clear that total emissions 
will increase (assuming that there are no changes in vehicle 
technology). If, on the other hand, traffic dynamics are changed by 
reducing idle times and stop and go traffic, then one may receive some 
benefits (although faster speeds may also increase some emissions). If 
additional trips are generated, then emissions may be increased due to 
additional cold starts (the running time before catalytic converters 
become operational). These types of effects tend to be very site 
specific so it is hard to generalize what the total impact would be. We 
currently know of no studies that have explicitly analyzed these 
effects using the latest modeling techniques (the National Cooperative 
Highway Research Program is currently in the process of beginning such 
a study).
    It is clear that historical emissions have been reduced 
significantly since 1970 despite significant increases in total VMT. 
This is attributable to the success of the Clean Air Act in regulating 
tailpipe emissions. For example, CO emissions from mobile sources 
decreased by 40 percent; Volatile Organic Compounds (VOC) from mobile 
sources decreased by 58 percent; nitrogen oxides (NOx) emissions from 
mobile sources decreased by 3 percent; and, particulate matter 
(PM10) from mobile sources decreased by 25 percent. It is 
likely that implementation of future National Low Emission Vehicles 
(NLEV), tier II emissions standards, low sulfur fuels and hybrid 
electric vehicles will lead to further reductions in mobile source 
emissions.
    The debate over building new highway capacity has hinged to a large 
degree on whether it is an effective means of reducing congestion. The 
relevant questions are: under what circumstances is demand for mobility 
best met through added highway capacity, or alternative approaches 
(such as travel demand management, transit, or smart growth strategies) 
and what the relative environmental costs are. As the question from 
Senator Lieberman implies, ``the answer lies somewhere in the middle.'' 
TEA-21 supports a multi-modal approach to funding and planning 
transportation systems to minimize environmental impacts. Local areas 
need the information and tools to effectively determine the tradeoffs 
between alternative approaches to providing mobility and what the 
potential environmental costs of those alternatives might be.
References:
    Hansen, Mark and Yuanlin Huang, 1997, ``Road supply and traffic in 
California urban areas'' Transportation Research A, 31: 205-218.
    Heanue, Kevin, 1998, ``Highway Capacity and Induced Travel: Issues, 
Evidence and Implications'', Transportation Research Circular, 481, 
Transportation Research Board, National Research Council.
    Noland, Robert B., 1999 ``Relationships Between Highway Capacity 
and Induced Vehicle Travel'', paper presented at the Annual Meeting of 
the Transportation Research Board. Forthcoming in Transportation 
Research A.
    Noland, Robert B., and William A. Cowart, 1999, ``Analysis of 
Metropolitan Highway Capacity and the Growth in Vehicle Miles of 
Travel'', accepted for presentation at the 1999 Association of Public 
Policy and Management Annual Research Conference, Washington, DC. Also 
submitted to the Annual Meeting of the Transportation Research Board.
    Transportation Research Board, 1995, Expanding metropolitan 
highways: implications for air quality and energy use, Special report 
245, National Research Council, National Academy Press, Washington, DC.

    Question 2: Transportation planning is a long term process, and the 
results of our spending on projects last for decades. What do you feel 
is the appropriate timeframe for evaluating transportation plans in the 
context of conforming with air quality objectives?
    Response. The current conformity rule requires conformity to be 
demonstrated over the 20-year timeframe of the transportation plan. The 
Clean Air Act (CAA) states that transportation activities must not 
cause or contribute to new violations, worsen existing violations, or 
delay attainment of air quality standards. These requirements apply to 
all planned transportation activities--that is, all planned activities 
in the entire 20-year timeframe of the plan.
    The air quality plan identifies the maximum allowable emissions 
that are protective of public health. The area must stay within these 
emissions levels even after the state implementation plans' (Sips) 
horizon if the area is to continue to protect public health and meet 
the air quality standards. Today's transportation decisions have air 
quality effects 20 years into the future, so it is important to 
consider this entire timeframe before the projects are constructed.
    We are aware of the benefits and challenges posed by differing 
timeframes of the SIP and the transportation plan. Some stakeholders 
argue that maintaining the air quality emissions targets for the 
timeframe of the transportation plan is a central purpose of conformity 
and perhaps its most important requirement. Because the obligation to 
meet air quality standards persists indefinitely, the obligation to 
meet air quality plan target should not terminate after the attainment 
date. It can also take decades for the effects of transportation 
investments to be realized. On the other hand, some transportation 
agencies believe that air quality plans may be unrealistic because they 
are not established with a 20-year horizon in mind, and therefore, it 
is not necessarily appropriate to require areas to conform to them 
indefinitely. They are concerned about the mismatch in the planning 
timeframes and additional control measures for later years may not be 
in place to offset growth.
    We believe that communities should continue to integrate the air 
quality and transportation planning processes to ensure that long-term 
mobility and public health goals are achievable. Through the 
consultation process, transportation and air agencies decide whether 
modifications to the transportation plan or air quality plan are needed 
to offset future transportation growth.

    Question 3: Some described the potential effect of the recent court 
decision as halting road building in certain areas. Do you think this 
is a real threat? I understand that Atlanta, the focal point of this 
debate, has reached a settlement on how to handle conformity. How many 
other projects do you anticipate would be permanently stopped due to 
the current guidelines?
    Response. We do not believe that all projects will be permanently 
stopped by the court's decision. Projects that are delayed by a 
conformity lapse can proceed as soon as an area solves its conformity 
problems; the majority of projects are not permanently on hold. State 
and local agencies decide how to rectify their conformity problems, so 
they decide whether they prefer to permanently stop certain projects, 
or to seek other ways of improving the air. Conformity simply ensures 
that an area's transportation projects are consistent with air quality 
goals before construction begins.
    We do not believe that the court decision threatens road building 
because most of the over 200 areas that do transportation conformity 
will not be impacted by the court's decision on grandfathering. Areas 
that meet their conformity and air quality planning obligations can 
continue to develop the transportation projects in their transportation 
plans.
    Transportation projects are only affected in areas that cannot 
demonstrate that their transportation plan is consistent with clean air 
goals. In these areas, projects may be delayed, but not permanently 
stopped, while an area decides how best to balance its transportation 
and air quality goals.
    At the present time, only seven areas are in a conformity lapse and 
thus affected by the court's ruling: Atlanta, GA; Raleigh, NC; Paducah, 
KY; Ashland, KY; Kent County, DE; Charleston, WV; and Santa Barbara, 
CA. Six of these areas will resolve their conformity problems in just a 
few months, so disruption to the transportation planning process will 
be minimized. Atlanta will need additional time to resolve its 
conformity problems, due to long-term growth, air quality, and 
transportation issues. The area is focusing its efforts to develop a 
new, conforming transportation plan by March of 2000. On the other 
hand, Kansas City recently resolved its conformity problems, so 
projects are no longer affected.
    Even during a conformity lapse, road building is not halted. 
Transportation projects which have received a DOT funding commitment 
for construction can still proceed when an area has conformity 
problems. Projects under construction will not be stopped. In addition, 
projects that are exempt from the conformity process can proceed at any 
time. Exempt projects include safety projects, bridge repair, road 
maintenance, bike lanes, and sidewalks. Transportation control measures 
that are in an approved air quality plan because they reduce emissions 
can continue to be advanced.

    Question 4: If the current long-term conformity time horizon--20 
years--were to be shortened to the same timeframe as the attainment SIP 
process--only 3 years--how would regions inform their citizens and 
elected of finials about the long-term impacts of transportation 
spending and potential contributions to traffic, sprawl, and pollution?
    Response. In our opinion, if the conformity time horizon was as 
short as 3 years, areas couldn't fully inform their citizens and 
elected officials about the air quality consequences of transportation 
decisions, nor would areas be able to anticipate potential 
contributions to traffic or increases in land area consumption. 
Shortening the conformity horizon to as little as 3 years would mean 
that areas would only look at short-term effects when making decisions 
with long-term consequences. Areas could commit to projects in the near 
term that result in potentially significant contributions to emissions 
in the future, then later find themselves in a situation where they 
cannot add necessary projects to their transportation system. With only 
near-term information, areas couldn't choose the optimal set of 
projects across the full timeframe of the plan. They wouldn't be able 
to decide whether modifications to the transportation plan or air 
quality plan are needed to offset future transportation growth. They 
wouldn't have the opportunity to find a balance of projects and 
pollution controls that protect air quality and meet their 
transportation needs over the long term. Areas need full information to 
make transportation choices, and this means they need to know the 
effects of their decisions over the long term.
                                 ______
                                 
  Responses by Robert Perciasepe to Additional Questions from Senator 
                                 Boxer
    Question 1: In California, we have three areas that have lapsed 
their conformity status. One because of the court case and another 
simply because they are still waiting on an EPA review. What can your 
agency do to speed these reviews and to approve new state 
implementation plans in a more timely fashion?
    Response. We agree that state implementation plans (SIPs) should be 
reviewed expeditiously in support of Clean Air Act (CAA) requirements. 
As a result of the March 2, 1999 court decision, EPA has created a new 
process to review the adequacy of submitted SIP motor vehicle emissions 
budgets, so that they can be used for conformity prior to EPA's 
approval. In the absence of an approved SIP, EPA will continue to allow 
adequate submitted SIP budgets to be used to ensure that transportation 
actions are consistent with public health.
    The March 2, 1999 court decision modified how EPA reviews submitted 
budgets for conformity purposes. Under the former conformity rule, 
submitted budgets could be used for conformity 45 days after they were 
submitted, unless EPA had declared them inadequate. EPA had made many 
adequacy findings in implementing the 1997 rule, but there were some 
areas where budgets went into effect without EPA action. Some 
California areas were impacted by the March 2, 1999 conformity court 
decision, because conformity was based on submitted budgets that EPA 
had not deemed adequate. EPA worked closely with these areas and the 
Department of Transportation (DOT) to reinstate conformity quickly.
    At present, Santa Barbara is the only California area in a 
conformity lapse, and the area is expected to resolve its conformity 
problems this fall. The area lapsed prior to the court's decision due 
to complications in its planning processes. Santa Barbara is completing 
a new conformity determination based on an approved 15 percent SIP for 
ozone. EPA is currently reviewing the adequacy of Santa Barbara's 
attainment SIP, but this review process will not prohibit the area from 
resolving its conformity problems in the fall. Future conformity 
determinations will be based on the submitted attainment budgets, if 
EPA finds them adequate.
    The Searles Valley is the only other California area affected at 
this time. The area's conformity status is suspended due to the March 
2, 1999 court decision ruling that conformity determinations be based 
on adequate budgets. EPA is currently reviewing the adequacy of 
Searles' submitted budgets, and if found adequate, the budgets would be 
used for conformity. There has been no practical impact from the 
court's decision since the area has no new projects.
    EPA's new adequacy process will ensure that submitted budgets are 
reviewed quickly. EPA expects to complete our adequacy process within 
90 days of a state submitting a SIP, which includes a public comment 
period. EPA will be working with state and local agencies to ensure 
that its adequacy review will be coordinated to minimize disruption in 
other planning processes. We will continue to work with state and local 
air agencies as SIP strategies and conformity budgets are developed. 
Our early involvement will ensure that adequate budgets and approvable 
SIPs are achieved.

    Question 2: How can your agency participate more fully in the 
interagency consultation process to allow the conformity analysis to be 
made on the most recently developed and approved data and to be 
reviewed and approved by the interagency consultation team?
    Response. EPA is very eager to see the most current information and 
analysis used for conformity, and we continually encourage local 
agencies to incorporate this data. We also recognize the need to be as 
fully engaged in the interagency consultation process as possible. 
Effective participation can be difficult with the variation in the 
quality and quantity of materials and information provided by local 
agencies and with the quality of their meetings and processes.
    To improve these interagency processes and streamline planning, we 
are currently engaged in a number of partnership efforts aimed at 
identifying ways that we can interact more effectively with other 
agencies working on air quality, environmental and transportation 
planning efforts. EPA is encouraged by TEA-21's provisions which allow 
states to use their Federal-aid highway funds to support increased 
environmental agency staff to provide for expedited environmental 
review of projects. In addition, through both our headquarters and 
regional offices, EPA has been investing substantial resources to work 
with DOT and others to improve planning processes under TEA-2 1's 
environmental streamlining provisions. The best way to streamline 
transportation planning is for environmental issues to be addressed 
much earlier in the process, during the initial development of 
transportation plans. At this early stage it is possible to create 
strategies that will protect the environment, reduce transportation 
problems, and enhance communities. By developing strategies to reduce 
driving and sprawl we can reduce congestion, pollution, loss of open 
space and destruction of communities simultaneously.
    As a specific California-based example, EPA Region 9 staff is 
currently involved in a partnership effort with the Federal Highway 
Administration and California's Department of Transportation 
(Caltrans). In response to a multi-agency seminar held on April 2, 
1999, the three agencies formed a task force of 9 people to ``develop 
effective interagency collaboration in the transportation and 
environmental planning processes and their outcomes.'' The group has 
brainstormed potential recommendations under the following goals:

    (1) Improve communication and coordination among the three 
    agencies,
    (2) Influence the planning process to result in better 
    transportation and environmental plans and projects; and
    (3) Improve communication and coordination with external 
    stakeholders to improve the planning process.

    With the vast number of transportation projects that are 
anticipated for California over the next few years, all three agencies 
are targeting development of guidance and training as an effective way 
to clarify the regulatory and technical issues associated with 
planning. However, all three agencies recognize that to be effective, 
we have to be involved very early in transportation plan development. 
Therefore, the workgroup is identifying specific high-priority pilot 
projects to test the concepts of early involvement. It is hoped that 
both the tools and the procedures developed in the pilots can be 
carried over in other areas to improve other regional transportation 
and environmental planning efforts.

    Question 3: What steps can be taken to strengthen the general 
conformity process in order to ensure that impacts of other Federal 
agencies and programs--specifically, Federal-regulated sources--are 
given the same scrutiny that the transportation sector receives?
    Response. The EPA believes that conformity has been and will 
continue to be a valuable component of areas' efforts to prevent 
violations of the air quality standards. Pursuant to section 176(c) of 
the Clean Air Act (as amended in 1990) (``CAA''), Federal agencies must 
make a determination that ambient impacts which result from actions 
they undertake conform with the air quality goals of the applicable 
state implementation plan (``SIP'').
    For conformity analysis purposes, the CAA distinguishes between 
highway and transit-related activities (``transportation conformity'') 
and all other activities (``general conformity''). The general 
conformity determination is an analysis of the impacts of the direct 
and indirect emissions related to the Federal action and over which the 
agency has control. EPA's rules provide flexibility by specifying 
several criteria and allowing the Federal agencies to meet any one of 
the criteria. Recognizing that the SIP is primarily a state 
responsibility, one of these provisions specifically allows states to 
certify that an action is consistent with the SIP. The rules also 
require the Federal action to meet any applicable SIP requirements and 
emission milestones. The conformity determination assures that the 
Federal agency will be aware of and prevent predicted violations of the 
air quality standards and inconsistencies with state planning efforts 
and SIP requirements.
    Transportation conformity requires attainment demonstrations to 
contain motor vehicle emissions budgets clearly identified and 
precisely quantified which, together with all other emissions sources, 
must be consistent with attainment goals. General conformity, by 
contrast, is not tied to a specific budget in the SIP. General 
conformity impacts are primarily area source and VMT (stationary source 
emissions are exempt if they are regulated by other requirements).
    In the structure of CAA section 176(c) itself, Congress appeared to 
recognize a difference between transportation and general Federal 
activities, since it contains much more detail regarding transportation 
requirements. Because general conformity encompasses far more 
activities that are not limited to any particular planning process such 
as applies in the transportation world, the best way to ensure Federal 
accountability with respect to general conformity is by better 
coordinating Federal projects that cause air impacts with the state air 
quality planning process. Section 176(c) and EPA's general conformity 
rules require and encourage such coordination. In fact, because of 
their more widespread community impact, the major Federal activities 
that are required to demonstrate conformity, such as airport expansions 
and Department of Defense base realignments, do undergo a great deal of 
public scrutiny.
    The Agency continues to support all coordination efforts enhancing 
public awareness with regard to ongoing general conformity 
determinations.

    Question 4: The Southern California region has raised the problem 
that there is a mismatch between the final date of attainment for the 
State Implementation Plan (2010) and the end of their regional 
transportation plan (2020). For the last few years of the regional 
transportation plan, the regional planners would have to work under the 
emissions ceiling imposed in earlier years. They say they will not be 
able to account for growth and/or technology improvements. How do you 
respond to that complaint? What possible legislative solutions are 
possible to allow the MPOs some flexibility but ensure that SIP 
emissions budgets are not violated?
    Response. The state's attainment plan identifies the total level of 
emissions that allows healthy air. Although emissions sources may 
continue to grow after the attainment date, the total allowable level 
of emissions remains constant. Because areas must continue to maintain 
public health even after the attainment date, emissions must remain 
below the emissions ceiling established in the state implementation 
plan (SIP).
    Today's transportation decisions will influence motor vehicle 
emissions beyond the attainment date. Therefore, impacts over the 
entire timeframe of the transportation plan need to be considered. 
Otherwise, an area will have committed itself to motor vehicle 
emissions increases without explicitly considering the tradeoffs in 
terms of offsetting reductions in other sources. In contrast, the long-
term planning horizon provides an opportunity for bringing state and 
local transportation and air quality planners together to decide how 
future growth will occur.
    EPA understands the challenges posed by coordinating long-term 
transportation and air quality planning. We strongly encourage 
transportation agencies to be involved in the development of air 
quality plans, so that future transportation goals are considered when 
emissions budgets are set. State and local governments and the public 
are responsible for choosing what level of motor vehicle emissions is 
appropriate for their area. It is important that these choices be 
respected, and ultimately, adhered to so that the state and local plan 
for clean air can work. Conformity reinforces these state and local 
choices.
    Growth beyond the SIP's attainment date can be considered by 
extending the SIP's timeframe. EPA has assisted several areas--such as 
Portland, OR, and Albuquerque, NM--in revising their SIPs to create 
conformity budgets for later years. Salt Lake City chose to create a 
20-year ozone maintenance plan to address long-term transportation 
growth. In 1998, the South Coast region amended its air quality plan to 
create new conformity budgets for the year 2020.
    These budgets accounted for current technological improvements and 
accounted for growth in other emissions sources. EPA worked closely 
with the state and local air agency in the development of these 
budgets, and the transportation agency was able to demonstrate 
conformity.
    In addition, MPOs do have the ability to take credit for some 
current technological improvements in their emissions analyses, even if 
the SIP doesn't reflect them. For example, transportation agencies can 
take credit for new auto or truck tailpipe standards once they are 
finalized. Some areas have been able to pass conformity by taking 
credit for new National Low Emission Vehicle (NLEV) standards.
    EPA believes that our existing conformity rule and SIP policy 
provide sufficient flexibility for areas to manage the mismatch in 
planning timeframes, and therefore, legislative action is unnecessary. 
We posed this issue and several options to stakeholders for comment 
when we developed the 1997 conformity rule. Some transportation 
agencies commented that air quality plans may be unrealistic because 
they are not established with a 20-year horizon in mind, and therefore, 
it is not necessarily appropriate to require areas to conform to them 
indefinitely. They expressed concern that the mismatch in the planning 
timeframes and additional control measures for later years may not be 
in place to offset growth. EPA received other comments in support of 
retaining the requirement that conformity be demonstrated for the 
entire 20-year transportation plan. In the final rule, we clarified 
that EPA's existing policies allow for SIP timeframes to be extended to 
address this issue. Furthermore, we described some flexibility in SIP 
requirements when the SIP's timeframe is voluntarily extended. For 
example, in these cases EPA could approve the SIP based on commitments 
to adopt specific future measures; the state would not have to fully 
adopt the measures, as is usually required.

    Question 5: Also, if the long range plan conformity time horizon 
were to be shortened to the same timeframe as the attainment SIP, how 
would regions inform their citizens and elected of finials about the 
long-term impacts of building a new outer beltway on traffic, sprawl, 
and pollution growth?
    Response. In our opinion, if the conformity time horizon were 
shorter than the life of the transportation plan, areas couldn't fully 
inform their citizens and elected officials about the air quality 
consequences of transportation decisions, nor would areas be able to 
anticipate potential contributions to traffic or increases in land area 
consumption. Shortening the conformity horizon to as little as 3 years 
would mean that areas would only look at short-term effects when making 
decisions with long-term consequences. Areas could commit to projects 
in the near term that result in potentially significant contributions 
to emissions in the future, then later find themselves in a situation 
where they cannot add necessary projects to their transportation 
systems. With only near-term information, areas couldn't choose the 
optimal set of projects across the full timeframe of the plan. They 
wouldn't be able to decide whether modifications to the transportation 
plan or air quality plan are needed to offset future transportation 
growth. They wouldn't have the opportunity to find a balance of 
projects and pollution controls that protect air quality and meet their 
transportation needs over the long term. Areas need full information to 
make transportation choices, and this means they need to know the 
effects of their decisions over the 20-year life of the transportation 
plan.

    Question 6: What would prevent a decision on a new outer beltway 
from being grandfathered on the basis of a short-term analysis and then 
producing a new violation of the Federal air quality health standards 
after the attainment date, imposing large pollution clean up costs on 
utilities, small businesses, and individuals as well as increased 
health impairments and deaths among thousands of citizens with 
respiratory problems?
    Response. If the conformity determination were based on a short 
timeframe such as 3 years, then portions of a new beltway could be 
advanced without further conformity analysis. A short-term analysis 
would leave the area unaware of the new beltway's long-term emission 
consequences. This could ultimately require the area to achieve 
offsetting emission reductions from other sources. If the area had 
considered the long-term effects of the beltway, it may have identified 
alternatives to the beltway that meet transportation needs but have 
less emissions impact.
    We believe that conformity's requirement for 20-year analysis, 
combined with the approach that we developed in response to the court 
decision, prevents the situation the question describes. Under our new 
approach, projects that are mere plans on paper cannot continue forward 
even when they may cause air quality problems. If long-term analysis 
shows that there will be future air quality problems, a project can 
continue only if DOT has authorized it for construction.

    Question 7: How can your agency establish a more coordinated and 
systematic approach with state and local agencies for transportation 
and air quality planning?
    Response. EPA agrees that we should continue to improve 
coordination of the transportation and air quality planning processes, 
and we believe that the current conformity process establishes the 
foundation for such improvements. Prior to conformity, there was 
minimal, if any, coordination between the transportation and air 
quality planning processes. Congress clearly intended to integrate 
these processes when it adopted more specific conformity requirements 
in the 1990 Clean Air Act.
    EPA has many current and future opportunities to improve conformity 
implementation. We continue to provide assistance to many state and 
local transportation and air quality agencies across the country--
especially in areas facing conformity challenges. We are currently 
engaged in a number of partnership efforts to improve coordination on 
air quality, environmental and transportation planning issues. For 
example, EPA regional offices are working with Department of 
Transportation field offices and state and local agencies to design 
individual pilot areas for implementing TEA-2 1 goals. It is hoped that 
these pilot efforts will result in better planning tools and procedures 
that will be transferable to other areas.
    We are proactively involved in the development of air quality plans 
and associated conformity budgets used in transportation planning and 
conformity processes. EPA also works with air quality and 
transportation planners in the development of state and local 
conformity rules, which are submitted to EPA as ``conformity Sips.'' 
The Clean Air Act requires all areas doing conformity to create site-
specific conformity procedures. The conformity SIP is the mechanism for 
Federal, state, and local transportation and air quality agencies to 
decide how coordination and consultation will occur in each area's 
conformity process.
    State and local agencies can propose alternate conformity 
procedures through the Conformity Pilot Program. EPA and DOT finalized 
the pilot program earlier this year, in order to provide an opportunity 
for states and cities to test innovative conformity procedures.
    Finally, EPA and DOT are developing a memorandum of understanding 
(MOW) to improve coordination between the Federal agencies on 
conformity, air quality, and transportation planning issues. Improved 
consultation between the Federal agencies will lead to quicker agency 
reviews and more effective responses to state and local government 
issues. All of these efforts will support continued improvements in the 
conformity process.
                               __________
     Statement of Kenneth R. Wykle, Administrator, Federal Highway 
  Administration and Gordon J. Linton, Administrator, Federal Transit 
                             Administration
    Mr. Chairman and Members of the Committee, we are pleased to appear 
before you today to discuss conformity under the Clean Air Act and, 
particularly, the impact of the March 2 decision of the United States 
Court of Appeals for the District of Columbia Circuit in Environmental 
Defense Fund v. Environmental Protection Agency on our ability to 
approve highway and transit transportation projects for Federal 
financial assistance.
    The Clean Air Act requires, among other things, that Federal and 
federally assisted transportation projects conform to the air quality 
goals and priorities established in a state's air quality 
implementation plan (SIP) for attaining the Clean Air Act air quality 
standards. For programs administered by the Federal Highway 
Administration (FHWA) and the Federal Transit Administration (ETA), we 
determine whether transportation projects conform to a state's SIP by 
comparing the total expected air quality emissions from the aggregate 
of projects contained in the transportation plan and transportation 
improvement program (TIP) with the provisions of the SIP. The 
Environmental Protection Agency (EPA), with Department of 
Transportation (DOT) concurrence, has issued transportation conformity 
regulations that implement this requirement.
    In the EDF decision, the court invalidated portions of the EPA 
regulations, including (1) a provision that allowed projects that had 
been found to conform and had completed the National Environmental 
Policy Act (NEPA) process (previously referred to as grandfathered 
projects) to continue to receive FHWA and FTA approvals and funding 
commitments in the absence of a conforming plan and TIP, and (2) a 
provision that permitted the use of ``submitted SIP emissions budgets'' 
to make conformity determinations. This means that most Federal and 
federally assisted FHWA and FTA projects may not be approved in air 
quality nonattainment or maintenance areas which do not currently have 
a conforming plan or TIP, or in which the plan and TIP were found to 
conform on the basis of a submitted emissions budget (unless, and 
until, EPA has approved the budget or found it adequate).
    The EDF decision held that projects that had previously been found 
to conform and had completed the NEPA process could not be approved or 
funded in nonattainment and maintenance areas that do not have a 
currently conforming plan and TIP. However, projects that are exempt 
from the conformity process and also transportation control measures 
(TCMs) that are included in an approved SIP may still be advanced. In 
addition, it is our view that projects that have received final funding 
commitments for construction (plans, specifications, and estimates 
(PS&E) approval, full funding grant agreement (FFGA), or an equivalent 
approval or authorization) before a conformity lapse or the court 
decision, need not be stopped. Under guidance issued on June 18, 1999, 
63 construction phases valued at $823 million were allowed to proceed. 
But, if subsequent phases of such projects require FHWA or FTA approval 
(that is, projects that are to be completed in stages and receive PS&E 
or equivalent approval one stage at a time), such approval must be 
withheld until there is a valid conformity determination for the area 
of the project. In addition, we cannot continue to fund active design 
and right-of-way acquisition projects, with certain exceptions, during 
a conformity lapse.
    The obvious question is, what areas will be affected by this 
decision? The answer to this question changes over time. Because areas 
move in and out of conformity, the list of lapsed areas is dynamic. 
Often, areas are able to re-establish conformity relatively quickly, in 
a matter of months; other areas can take longer. Historically, we have 
had as many as 21 areas in lapse at any one time. After the court 
decision on March 2, ten (10) areas were in lapse.
    As of the week of July 12, we estimate that there are seven (7) 
areas of the country that do not have currently conforming plans and 
Tips. These 7 areas are:
    Ashland, KY Atlanta, GA Kansas City, KS and MO Monterey, CA 
Paducah, KY Raleigh, NC Santa Barbara County, CA
    We estimate that there are approximately 158 surface transportation 
projects in these areas that we had considered ``grandfathered'' under 
the now-invalidated EPA regulation, and which now may not be approved 
for Federal funding. These projects are valued at about $1.96 billion. 
This includes approximately 73 projects in the design phase valued at 
$242 million and 59 projects undergoing right-of-way acquisition valued 
at $289 million that are currently being delayed. It should be noted 
that of the $1.96 billion figure, $684 million worth of projects are in 
the Atlanta area.
    How long it will be before we can approve these remaining projects 
will depend on how long it takes for these areas to make valid 
conformity determinations. We expect these areas to re-establish 
conformity by the end of this year, with the exception of Atlanta. The 
Atlanta Regional Commission (ARC) projects that conformity will be re-
established by March, 2000. We will work diligently with EPA, MPOs, 
state departments of transportation, and other relevant parties to 
assist these areas in re-establishing conformity as soon as possible.
    There are also two (2) other areas in the country, as of July 12, 
where current conformity determinations were based on submitted 
emissions budgets which were not found adequate or approved by EPA. In 
these areas, as a result of the EDF decision, only construction 
projects that had received PS&E approval, FFGA, or an equivalent 
approval or authorization prior to the decision, may proceed. No new 
FHWA or ETA approvals may be granted until conformity is redetermined 
using an appropriate conformity test. These two (2) areas are:
    Longmont, CO Searles Valley portion of San Bernardino County, SCAG, 
CA
    If the two areas do not re-establish conformity within the next 3 
months, two additional projects, worth less than $1 million, could be 
affected. However, these additional areas are expected to re-establish 
conformity by this September.
    The future effects of the EDF decision could be felt in any 
nonattainment or maintenance area which becomes unable to make 
conformity determinations because of the problems with the area's 
transportation planning processes or SIP development process. Since 
these problems are usually state or local in nature, it is difficult to 
predict how many such areas there will be, if any. As a result of the 
EDF decision, in any such ``conformity lapse'' areas, FHWA and ETA 
could not continue to approve or fund projects during a lapse, unless 
the construction phase of the project had received PS&E approval, FFGA, 
or an equivalent approval or authorization prior to the lapse, or was 
otherwise exempt from conformity. We will work with relevant 
stakeholders to resolve potential problems as soon as possible.
    DOT has been working closely with EPA during the EDF litigation and 
since the court issued its March 2 decision. We believe that we can 
administer our programs consistent with the court's ruling by working 
closely with EPA, both on revising the EPA's Clean Air Act implementing 
regulations and on state-by-state or area-by-area bases to address 
lapses in conformity determinations.
    FHWA, FTA, and EPA work closely with state and local officials on a 
regular basis. When the agencies learn that a community is facing a 
conformity determination lapse, the agencies will meet 6 months prior 
to the anticipated lapse date and jointly evaluate the potential 
consequences of the lapse, assess any concerns, and try to resolve 
issues that would lead to the conformity lapse. The FHWA, FTA, and EPA 
will meet at least 90 days before a conformity lapse to determine which 
projects should receive funding commitments before the lapse, which 
projects must be delayed, and what recommendations to state and local 
officials would be useful.
    When a conformity lapse is imminent, FHWA and FTA, after 
consultation with EPA, will notify the Governor, or the Governor's 
designee, immediately to inform the Governor of the consequences of the 
lapse and to suggest potential solutions to minimize disruptions to the 
transportation programs in the respective nonattainment and maintenance 
areas.
    The FHWA and FTA are continuing to work with EPA to develop revised 
conformity regulations.
    Again, we appreciate the opportunity to testify before the 
Committee on this important matter, and look forward to working with 
you as we continue to address the need to advance important 
transportation programs and projects while improving the air quality of 
areas, states, and the nation.
                               __________
 Statement of Dean Carlson, American Association of State Highway and 
                   Transportation Officials (AASHTO)
    Mr. Chairman and Members of the Committee, my name is Dean Carlson. 
I am Secretary of the Kansas Department of Transportation, and am here 
today to testify on behalf of the American Association of State Highway 
and Transportation Officials (AASHTO). I want to thank you for your 
leadership in holding this hearing to address the critical problems 
associated with this very complex and complicated issue called 
``transportation conformity.''
    Mr. Chairman, AASHTO supports the national goal of improving air 
quality, but we believe that we can and should work toward achieving 
this goal in a practical and effective manner that does not require 
burdensome, complex and costly regulations which do nothing to reduce 
emissions. We stand ready to assist you in moving forward to remedy the 
unwarranted and unnecessary additional burdens placed on the project 
delivery process resulting from the agreement reached by EPA and DOT to 
implement the March 2 EDF decision. To this end, we urge your support 
of S. 1053, recently introduced by Senator Christopher ``Kit'' Bond.
    S. 1053 would reinstate the transportation conformity process as it 
existed prior to the Circuit Court's decision. While it does not solve 
the myriad of problems with this burdensome process, it would permit us 
to return to the rules that were adopted after lengthy negotiation and 
debate within the transportation and environmental communities. AASHTO 
strongly supports enactment of S. 1053 because a legislative remedy is 
needed. The administrative action that has been taken by EPA and DOT 
has not proven satisfactory.
    I want to assure you that all of the State transportation officials 
across the country fully support the national goal of improving air 
quality and ensuring a healthy environment in all of our States. We 
strongly believe that environmental stewardship is very much a part of 
our fundamental transportation mobility mission, and continually seek 
new and innovative, multi-modal strategies to more effectively unite 
the two. However, we are extremely concerned that many of the current 
procedures for linking transportation and air quality have resulted in 
increased uncertainty throughout the entire transportation planning and 
project delivery process and have substantially increased project costs 
and delays, not to mention our fundamental ability to provide quality 
transportation systems and services. The existing approach for linking 
transportation and improved air quality is based on an esoteric, 
resource intensive and costly set of regulations that have done little, 
if anything, to reduce air pollutants.
    The current transportation conformity regulations were drafted by 
the U.S. Environmental Protection Agency (U.S. EPA) to implement 
provisions of the Clean Air Act Amendments of 1990, which more 
explicitly defined the process for ensuring that transportation plans 
and programs conform with State air quality implementation plans 
(SIPs). As the States and Metropolitan Planning Organizations (MPOs) 
gained practical experience with the regulations, minor, but important, 
modifications were recommended, resulting in three sets of amendments 
to the regulations. Most of the regulatory adjustments provided by 
these amendments were endorsed by both the transportation and 
environmental communities.
    Among the adjustments were several that specifically lessened 
uncertainty and strengthened the link between air quality strategies 
and transportation plans and programs:
    An explicit set of rules for allowing those projects, which had 
previously been found to conform and were past the environmental review 
process, to advance to construction--the so-called ``grandfathering'' 
of projects;
    The ability to use the emissions budgets in submitted SIPs as the 
test for conformity rather than continuing to rely on a ``Build/No-
Build'' test that both the transportation and environmental communities 
agree is flawed; and
    The addition of a 12-month ``grace period'' to enable newly 
designated areas to prepare technically to undertake conformity 
demonstrations.
    These provisions are examples of the results of an effective 
partnership between the transportation and environmental communities to 
begin to move forward in establishing a more rational and practical 
approach to ensuring transportation plans and programs adhere to state 
air quality goals. More work is needed, but this was an excellent 
start. Unfortunately, what has been accomplished was completely undone 
with the March 2, 1999 decision by the U.S. Court of Appeals for the 
D.C. Circuit in response to a case brought by the Environmental Defense 
Fund.
    In its decision, EDF v. U.S. EPA, the Court remanded several of the 
key adjustments made by EPA in its three sets of amendments, 
eliminating the grandfathering provision, prohibiting the use of 
submitted budgets as the basis for making conformity determinations and 
eliminating the grace period for newly designated non-attainment areas 
to prepare for demonstrating conformity. The court ruled that the 
current law does not provide the statutory basis for EPA to institute 
these regulatory modifications, which were designed to bring some 
flexibility and common sense to the conformity process.
    In response to the court's action, EPA chose not to appeal, 
preferring instead to proceed with compliance in a manner that would 
mitigate the negative impacts on transportation, and from their 
perspective, would diminish the procedural uncertainties during the 
appeals process. Therefore, both the U.S. Department of Transportation 
(DOT) and EPA have published guidance intended to comply with the 
ruling and to administratively lessen the impacts on the transportation 
planning and project delivery process. We respectfully believe that the 
guidance does not, in fact, achieve this goal. Indeed, the most recent 
guidance of June 18, 1999 from the U.S. Federal Highway Administration 
(FHWA) is even more restrictive and burdensome than earlier guidance 
issued subsequent to the court's decision. Nor does the recent 
administrative action ensure that additional court challenges will not 
continue to disrupt transportation programs.
    Indeed, the court itself recognized the burdensome nature of its 
ruling, stating, ``if this legislative scheme is too onerous, it is up 
to Congress to provide relief.'' Such relief is urgently needed, and 
the legislation recently introduced by Senator Bond would statutorily 
reinstate the earlier ``mutually agreed to'' modifications. This would 
merely require a minor, technical amendment to the Clean Air Act to 
clarify implementation. We strongly support Senator Bond's bill, S. 
1053 and respectfully urge this Committee to approve this measure as 
soon as possible.
    In short, what we now have is an agreement between EPA and DOT that 
is intended to mitigate the impacts of the court's ruling, but now 
allows highway project development to be disrupted right up until the 
day construction actually begins. These are not new projects, but 
rather ones that are the product of a rigorous and lengthy regional 
transportation planning process and that have already passed previous 
conformity tests. In fact, DOT has informed the States that in the 
event of a conformity lapse, they will immediately stop payment for 
ongoing design work and right-of-way acquisition.
    Let me provide some examples of the impacts that the elimination of 
the grandfathering provision has already had in several states where 
conformity has lapsed for a variety of reasons.
    In my own State of Kansas, we have determined that in order to 
maintain air quality, 10 years from now the Kansas City metropolitan 
area will need to begin using reformulated gasoline. This 10-year 
horizon will give us the time to put in place the necessary 
distribution infrastructure to ensure smooth transition and effective 
implementation of this air emission reduction strategy. However, EPA is 
insisting that in order to include this long-term strategy in our SIP, 
we must have enforceable mechanisms in place to begin using 
reformulated gasoline within 1 year, despite the fact that it is not 
needed for some 10 years. Therefore, Kansas City's transportation 
conformity demonstration has lapsed, and our transportation program has 
come to a halt. Both highway and new transit capacity projects have 
been stopped.
    Other areas face similar problems. Late last year, the North 
Carolina Department of Transportation (NCDOT) foresaw that the Raleigh/
Durham/Chapel Hill/Carrboro non-attainment area might experience a 
conformity lapse. At the time NCDOT was working with the MPOs in the 
region to update their regional transportation model, and it had become 
apparent that the time required to satisfactorily complete the update 
effort would result in a short-term conformity lapse. NCDOT determined 
that the risk of project delays that might result from a temporary 
conformity lapse would be minimal because project planning and design 
would be far enough along--under the grandfather rules existing prior 
to March 2 of this year--that project delivery would not be 
interrupted. In weighing the risks of a short-term conformity lapse, 
NCDOT had not anticipated a change in the rules, which the March 2 EDF 
decision represents.
    In just this one area, the DC Circuit Court's March 2 EDF decision, 
eliminating the grandfathering provision, has affected $72 million 
worth of projects.
    One of the projects on which work has come to a halt involves 
access to a new solid waste facility in a small community outside of 
Raleigh, North Carolina. The environmental permit for the waste 
facility is tied to construction of a new road, without which trucks 
would have had to travel through residential neighborhoods to access 
the facility. Now, construction of the solid waste facility and the new 
highway facility are out of sync, complicating the development of a 
much-needed environmental facility. While NCDOT and its MPOs in the 
Raleigh metropolitan area were proceeding responsibly with their 
regional transportation modeling update effort, they unfortunately were 
ambushed by a change in the conformity regulations that have cost them 
significantly in terms of dollars, delays, environmental construction, 
and economic development.
    In Kentucky, two rural counties north of Paducah were designated as 
non-attainment for ozone after the enactment of the 1990 Clean Air Act 
Amendments. In April 1995, with no further violations, the area was 
redesignated as a maintenance area. As required by the conformity 
regulations, Paducah then had 18 months to demonstrate conformity with 
the emissions budgets established in the State Implementation Plan 
(SIP). Unfortunately, the mobile source emissions budgets established 
in the early 1990's for the region were based on inaccurate travel 
projections which do not coincide with the actual growth, albeit small, 
that has occurred and is now projected to occur in the future. 
Therefore, the area is unable to demonstrate conformity with the 
current emissions budget and the previous conformity demonstration for 
this maintenance area has lapsed. There is nothing the area can do 
until a new emissions budget is negotiated, submitted and approved by 
EPA, which is a lengthy process that will take more than a year to 
complete.
    In the meantime, construction on critical highway projects has come 
to a halt. For example, design work on a replacement bridge with new 
capacity over the Tennessee River has been stopped. The existing bridge 
has a sufficiency rating of 5.3 on a scale of 100, which means that it 
is in extremely poor structural condition and is weight-restricted. 
Work has also ceased on the relocation and replacement of a bridge 
across the Kentucky Lake Dam, which has been requested by the Army 
Corps of Engineers to coincide with replacement and modernization of 
the locks on Kentucky Lake.
    These examples illustrate how some metropolitan areas are already 
experiencing problems due to the March 2 EDF decision. However, over 
time these problems will spread through the country to all non-
attainment and maintenance areas, the numbers of which will 
substantially increase under the new standards for ozone and 
particulate matter. Moreover, because newly designated non-attainment 
areas will have no grace period in which to technically prepare for 
performing conformity analyses, we anticipate that many never before 
designated non-attainment areas will immediately face a conformity 
lapse. Quite simply, the new guidance from FHWA and EPA creates such a 
complicated, erratic and unpredictable process that most areas will 
find it impossible to keep conformity lapses from occurring at some 
point.
    I have also attached to my testimony a hypothetical illustration of 
the many points at which a conformity lapse can occur, and the impact 
on the project delivery process resulting from EPA and DOT's agreement 
in response to the EDF decision.
    While enactment of Senator Bond's legislation will reinstate the 
status quo as it existed prior to March 2, I would be remiss if I did 
not inform this Committee of another fundamental flaw in the 
transportation conformity process. Under the existing regulations there 
is a mismatch between the shorter-term horizon for attainment or 
maintenance of air quality standards in SIP and the 20-year time 
horizon required for the long-range transportation plan. The practical 
result is that there is no mechanism for examining tradeoffs among 
mobile, areawide and stationary sources for the out-years. Moreover, 
when this happens, the transportation agencies essentially take on the 
long-term air quality planning responsibility, but without the 
authority to unilaterally implement the types of programs (e.g., 
enhanced Inspection and Maintenance or reformulated gasoline) needed to 
substantially reduce mobile source emissions.
    One remedy would be to allow the operative SIP emissions budget to 
suffice for the purposes of demonstrating conformity of the long-range 
transportation plan. Transportation conformity would need to be 
demonstrated only for those years for which a SIP emissions budget 
exists. We urge you to assess the fundamental flaws resulting from 
inadequate linking of the transportation and air quality planning time 
horizons. We are prepared to offer assistance in searching for ways to 
modify the transportation conformity procedures that will ensure better 
linkages with air quality planning while simultaneously ensuring 
continued transportation mobility and access.
    Mr. Chairman, AASHTO's member States share the national goal of 
improving air quality, and believe that we should work cooperatively 
with the Federal Government and environmental community to find and 
implement practical and effective procedures and strategies to help us 
meet our mutual goal. The DC Circuit Court's decision has placed the 
States in an impossible situation that leaves projects facing an 
uncertain future right up until the point at which the shovel goes in 
the soil. EPA and DOT attempted to mitigate the effects of the 
decision, but unfortunately, each successive release of guidance became 
ever more restrictive. Legislative action is now required, we applaud 
Senator Bond's efforts on this issue and urge your support of S. 1053.
A Hypothetical Illustration of the Impacts of the Current Guidance on 
        the Project Development Process
    One of the most onerous provisions of the post-court ruling 
guidance that contributes to creating a wildly unpredictable planning 
and project delivery process involves grandfathered or ``previously 
conformed'' projects. Conformity regulations in existence before the 
March 2 EDF decision established a reasonable point at which highway or 
transit projects could proceed regardless of conformity demonstration 
difficulties, including lapses. However, the latest guidance, intended 
to mitigate the impacts of the court's ruling, now allows highway 
project development to be disrupted right up until the day construction 
actually begins. These are not new projects, but rather ones that are 
the product of a rigorous and lengthy regional transportation planning 
process and that have already passed previous conformity tests. In 
fact, the U.S. FHWA has informed the States that in the event of a 
conformity lapse, they will immediately stop payment for ongoing design 
work and right-of-way acquisition.
    I offer here a figurative illustration of a typical highway project 
progressing to construction in a metropolitan area to demonstrate 
difficulties with operating under the latest guidance and the many 
points at which the project development process can be interrupted.
    In my example, a State department of transportation is developing a 
project that adds lanes for 12 miles to a suburban arterial in an ozone 
non-attainment area. Due to its length and complexity, the project will 
need to be constructed in two phases. Our project will add one lane in 
each direction, add a bi-directional turn lane, resurface the existing 
two lanes, improve the interchange at the interstate from a partial to 
a full interchange, channelize six intersections, and interconnect 12 
signals in the corridor.
    The total cost of the project is $65-70 million. From the beginning 
of the feasibility study through the letting of construction contracts, 
our project faces more than a dozen potential Federal approvals. The 
critical decision points and project development steps follow:
    The feasibility study for our project is done, and Phase I 
engineering is nearing completion. The metropolitan area is 
experiencing difficulty demonstrating conformity of its new regional 
transportation plan and the current conformity demonstration has 
lapsed. Therefore, our project, which has previously passed all 
required conformity analyses, is now in jeopardy.
    Under the old rules, FHWA would have been able to approve the 
project because it came from a previously conforming long range 
transportation plan (Plan) and Transportation Improvement Program 
(TIP). Under the agreed settlement and new guidance, they now cannot 
approve a record of decision on this project because it is not in a 
currently conforming Plan.
    After 6 months, the MPO adjusts the mix of projects and strategies 
included in the Plan to enable a demonstration of conformity. FHWA then 
approves the record of decision, allowing the project to move beyond 
Phase I engineering.
    Unfortunately, while the MPO was able to demonstrate conformity of 
the Plan, the MPO cannot now demonstrate conformity of the TIP, which 
must be reanalyzed within 6 months of a new Plan conformity 
demonstration. Even though the Department's project development staff 
is ready to begin Phase II engineering, the U.S. FHWA cannot authorize 
the expenditure of Federal funds because of the lack of a conforming 
TIP. Under the rules existing prior to March 2, engineering could have 
been authorized because this project was contained in a previously 
conforming TIP.
    Then within 6 months, the MPO is finally able to demonstrate 
conformity of the TIP. The FHWA allows Phase II engineering to begin 
and right-of-way acquisition to occur.
    In the meantime, the state environmental agency submits a control 
strategy SIP that includes emission reductions for an enhanced vehicle 
inspection program. While the State legislature approves the program, 
the legislation contains a provision sunsetting the program after 3 
years. Because the State environmental agency has included emissions 
attributed to this program beyond the 3 years, the U.S. EPA disapproves 
the SIP, resulting in a conformity freeze until a new SIP is approved. 
The TIP has reached the end of its 2-year life, and even though the MPO 
can demonstrate conformity on the new TIP, conformity is frozen until 
the State environmental agency can submit an approvable SIP. Therefore, 
the necessary permits from the U.S. Fish and Wildlife Service, the Army 
Corps of Engineers and U.S. DOT cannot be obtained.
    When the State environmental agency submits an approvable SIP and 
the necessary permits are issued, authorization for construction of the 
first phase of project construction is requested. After construction 
begins, U.S. EPA requires the State environmental agency to submit 
control strategies that address nitrogen oxide (NOx) emissions. Because 
national NOx controls are delayed, the State is unable to submit a SIP 
with the appropriate regulations in place.
    Unfortunately, the U.S. EPA issues a failure to submit finding just 
as the MPO is concluding work on the update of the Plan, which is 
required every 3 years. Because the SIP call has been missed, the 
Federal agencies are unable to approve the conformity determination for 
the Plan. Although Phase I of construction is nearing completion, and 
the transportation department is ready to request approval for the 
second phase of construction, U.S. FHWA cannot authorize the next 
phase. The project misses a construction season, which undermines the 
reason for phasing, causing another year of delays and congestion for 
the motoring public.
    While convoluted, this hypothetical illustration is entirely 
possible under the current situation. This demonstrates the significant 
delays facing highway projects due to conformity regulations, despite 
the fact that the project would reduce emissions and improve safety. 
This illustration also demonstrates that failure to reduce air 
emissions is not the source of delay and added costs, but rather 
bureaucratic implementation of conformity regulations where the 
adherence to process is the goal, not improving air quality.
                                 ______
                                 
 Response by E. Dean Carlson to Additional Question from Senator Chafee
    Question: In your testimony, you stated that as part of the 
conformity process, the EPA was insisting that Kansas City implement a 
reformulated gasoline program within 1 year despite the fact that it is 
not needed for some 10 years. Furthermore, your failure to implement 
this EPA requirement was the cause for Kansas City's conformity 
demonstration to lapse.
    However, it is my understanding that the reformulated gas (RFG) 
program is being required to be implemented within 1 year because of 
violations of the 1-hour ozone standards and that RFG was chosen as the 
contingency measure to deal with such violations as part of your 
maintenance plan.
    Please clarify.
    Response. Yes, Kansas City had 1 year to implement RFG due to ozone 
violations before any transportation project work stoppage occurred. 
Due to the artificial conformity crisis, work stoppage on 
transportation projects was immediate. That is the difference.
                                 ______
                                 
   Response by E. Dean Carlson to Additional Questions from Senator 
                               Lieberman
    Question 1: If S. 1053 were enacted, what safeguards would prevent 
a repetition of the commonly cited example of Atlanta where $1 billion 
in new road projects received exemptions from Clean Air Act just before 
the expiration of the area's Regional Transportation Plan and the onset 
of a conformity lapse?
    Response. The conformity process was intended to achieve an 
accepted balance between transportation and air quality. Some 
safeguards that would achieve this and help prevent another ``Atlanta 
Case'' would be to have frequent dialogs between the transportation and 
air quality side. It is important for everyone to get involved at the 
conceptual or planning stage before the actual programming of projects 
begins. The key is comprehensive planning that examines all impacts and 
available alternatives, and having a long range plan that addresses 
these needs and concerns.

    Question 2: Reverting to the conformity process established prior 
to the court decision would again allow new conformity determinations 
to be made based on submitted but disapproved SIP emission budgets and 
based on submitted but unreasonable or inadequate SIP budgets. What 
protection would this leave the public in seriously polluted areas 
where improper SIP submissions might be used to approve new beltways or 
other sprawl-inducing roads that, once built, would produce 
substantially greater air pollution than alternative transportation 
investments and strategies? Would this not tend to then put the cleanup 
burden on other sectors or delay attainment of healthful air quality, 
increasing asthma deaths among children and the elderly and those with 
respiratory problems?
    Response. In the case of a disapproved or inadequate SIP budget, 
the region would still have the option to use other tests to screen 
these projects for potential impacts to air quality. The ``build'' 
``no-build'' test and ``less than 90'' could be used. These tests are 
still subject to review by EPA as to their adequacy. The fallacy in the 
July, 1999 direction on conformity (cutting off funds) is that while 
asthma and respiratory deaths may increase, no consideration is given 
to the fact that traffic deaths of people forced to use antiquated 
roads and bridges will increase.

    Question 3: If the current long-term conformity time horizon--20 
years--were to be shortened to the same timeframe as the attainment SIP 
process--only 3 years--how would regions inform their citizens and 
elected officials about the long-term impacts of transportation 
spending and potential contributions to traffic, sprawl, and pollution?
    Response. The mismatch between the years covered by the Long Range 
Plan and SIP budget puts the burden on the transportation sector in 
latter years to improve air quality and demonstrate conformity on 
earlier established budgets. If the conformity time horizon is 
shortened, then there needs to be some linkages or tradeoffs beyond 
that 3-year time to inform and address these impacts that could occur 
within 20 years. As mentioned before, the key is having input from both 
the transportation and air quality planning sides before any projects 
are programmed into transportation improvement program or long range 
plan.
                               __________
   Statement of Jack L. Stephens, Jr., Executive Vice President for 
   Customer Development, Metropolitan Atlanta Rapid Transit Authority
    Mr. Chairman, Members of the Committee, thank you for the 
opportunity to present testimony to you today regarding transportation 
conformity activities under Section 176 of the Clean Air Act and the 
effect recent litigation has had on this program.
    I serve as Executive Vice President for Customer Development at the 
Metropolitan Atlanta Rapid Transit Authority (MARTA) in Atlanta, 
Georgia. My responsibilities include the directing of the various 
offices and departments of the agency charged with governmental 
relations, planning, marketing, media and public relations, community 
relations, research, customer service and economic development. I am 
neither a legal expert nor a planning technician. My responsibilities 
are much broader and require constant efforts to build sustainable 
consensus among those with whom I must interact.
    Although I am a strong advocate for public transit in the 
transportation conformity ``discussions'' within the local, regional, 
state and national debate, transit advocacy is not my principal reason 
for agreeing to appear before this Committee today. Rather, I offer to 
the committee certain observations from a local implementing agency on 
the impact of efforts at achieving transportation conformity within my 
community in the hope of presenting a perspective from the field that 
you might not obtain otherwise.
    Within the Sunbelt, Atlanta has been one of those fortunate cities 
that has recently been blessed with growth and success. We have few 
natural barriers to growth--no great rivers to cross, no mountain 
ranges or valleys, no sea coast. Georgia has a history of strong home 
rule and our land use laws, which are principally assigned to local 
governments to develop, are generally weak. Like water poured onto a 
flat surface, we can and do grow freely in any direction that we 
desire.
    In efforts to expand their local tax base, local municipalities and 
counties compete to attract new residents and new jobs. Local and state 
governments have poured tax dollars into the provision of 
infrastructure to support and attract this new growth. We are known as 
a pro-business region. Atlanta is consistently ranked among the top ten 
cities in which to do business. In 1998, the Atlanta census region had 
more than 326,000 housing permits issued making us second only to Los 
Angeles and the Washington Baltimore area (``State Implementation Plan 
for the Atlanta Ozone NonAttainment Area'', June 7, 1999, Georgia 
Department of Natural Resources, Environment Protection Division, Air 
Protection Branch, p. i).
    Without natural boundaries and with competition for growth strong 
among local governments, our region has become the 'poster child' for 
sprawl. We have become the victims of our own success. In 1998 the 
Sierra Club listed Atlanta as the No. 1 city most threatened by sprawl, 
while national news media declared the region the new sprawl capital. 
This is not the kind of recognition that civic and business leaders 
desire.
    A state Constitution that places land use decisions at the local 
level and a metropolitan planning organization charged with land use 
and transportation planning composed principally of the heads of local 
governments and their appointees, each with an equal vote, has added to 
our inability to come to grips with our regional sprawl. Sprawl has 
resulted in Atlanta residents traveling more in their automobiles than 
any place in the world, more than 100,000,000 miles per day 
representing 36.5 miles per day per capita and a 50.8 minute average 
commute (``State Implementation Plan for the Atlanta Ozone Non-
Attainment Area'', June 7, 1999, Georgia Department of Natural 
Resources, Environment Protection Division, Air Protection Branch, p. 
ii).
    We know that ground level ozone is formed from a chemical reaction 
of NOx and VOCs in heat and strong sunlight (both are a fact of life in 
the Sunbelt summer). In the 13 county Atlanta Non-Attainment area, cars 
and trucks account for about half of the NOx emissions and nearly half 
of the non-natural source VOC emissions. Given the American love for 
the automobile and our local land use pattern, is it surprising that 
the Atlanta region was classified as Serious Non-Attainment for Ozone 
following the passage of the Clean Air Act Amendments of 1990?
    Did the Clean Air Act Amendments passed by Congress create the 
problem? No, the law simply recognized the problem and insisted that 
local solutions be found and implemented. Is it a new problem? No, in 
fact the Atlanta region has only met the old attainment standard for 
ozone (no more than 0.12 ppm during 1 hour on any day per year) once in 
the last 20 years. We can debate the parts per million or old standard 
or new standard, but the air is still dirty. We can and should discuss 
excuses for exceedance like the weather in the Sunbelt or the negative 
effects of trees, but the air is still unhealthy. Congress has 
rightfully determined that Americans are entitled to clean air and that 
communities must determine actions to see that they achieve it or risk 
losing Federal funds for projects that are contributing to the problem.
    Metropolitan Atlanta was one of the first regions to be faced with 
the difficulties of obtaining transportation conformity. We have also 
been subject to lawsuits to force the agencies charged with achieving 
conformity and attainment to do what they are supposed to do to protect 
the health of their citizens. It may be one of the most difficult 
issues ever presented to our community to solve.
    Agencies, governments and individuals have staked out positions in 
this battle, and battle it is, and have begun to point fingers, seeking 
to place blame for the situation in which we find ourselves. It has 
been reported that Congress will soon put an end to these sanctions and 
conformity requirements and that we can go back to doing things the way 
we always have, postponing the inevitable day of reckoning to some 
point in the distant future. I hope not. It is not the fault of 
Congress, the EPA, the DOT, the environmentalists, transit advocates, 
or the road lobby. In truth, it is our own fault and as such we must 
solve it.
    The Federal sanctions placed on my community are undoubtedly 
causing difficulty. The response to these sanctions has brought out the 
worst and the best in our public servants and citizens. Let me offer 
some examples of the difficulties that we have experienced.
    When the Federal sanctions were imposed on our region for failing 
to meet conformity, more than 100 road projects were considered for 
grandfathering under the conformity regulations. Most of these would 
have greatly increased single occupant vehicle use in the region and 
exacerbated the problems with cleaning the air. These were not 
necessarily ``bad'' projects and all were projects that individual 
local governments advocated and the Georgia DOT supported for local 
development and increased mobility. However, even if Federal sanctions 
remained in place for any new road projects, estimates were that these 
projects would take up to 10 years to complete at a time when we were 
in serious non-attainment for ozone. Was this the intent of Congress? I 
certainly hope not. But the system worked in this case. Subsequent 
negotiations among Federal and state agencies pared this list nearly in 
half. Then a lawsuit was fled and settled out of court that reduced the 
number of projects to sixteen. Although not everyone (perhaps no one) 
was totally satisfied with the result, I think it is clear that it took 
the region in the right direction for solving its clean air problems. I 
am convinced that this result could never have been achieved without 
the law and the court's insistence that the will of Congress be obeyed.
    Even transit is having problems with the transportation conformity 
law and regulations. Most would consider the availability of mass 
transit a positive solution to getting commuters out of their cars and 
reducing the vehicle miles traveled in the single occupant vehicle. 
Under current rules, new rail lines cannot be built without a 
conforming regional transportation plan. In Atlanta, efforts to expand 
transit as part of the solution to our air quality problems will have 
to be postponed until we have a conforming plan. Conformity regulations 
allow certain transportation projects, like a transit rail extension, 
to be classified as a transportation control measure (TCM) but current 
estimates indicate that the process would take between 18 months to 2 
years to obtain that designation on each project considered. The 
ability to expedite such procedures should be available as appropriate.
    However, the focus that the Clean Air Act and conformity 
requirements have brought to our region's problems has also had some 
significant positive results.
    State, regional and locally elected officials, in response to 
concerns expressed by their citizens for the quality of life threatened 
by congestion and failure to meet air quality standards, have begun to 
think in terms of regional transportation systems and mobility rather 
than simply building specific road projects to meet a local 
government's individual economic development need. Citizens do not 
necessarily see more roads as the only answer to their congestion and 
clean air problems. It probably does not hurt that recent elections 
have resulted in candidates who support smart growth defeating the 
growth at any cost incumbents.
    For years, suburban counties have been resistant to public 
transportation. Recent surveys have shown strong evidence of changes in 
people's attitude toward mass transit. The impact of the Clean Air Act 
has been that citizens are educating themselves and are being educated 
on the problem of clean air and the health hazards to their families. 
This is the precursor to behavioral changes that are necessary for our 
community to solve our conformity problem.
    Ridership on the Metropolitan Atlanta Rapid Transit Authority 
(MARTA) has grown by 20 percent since 1996. Developers now seek us out 
and report that they have clients whose requirements for locating their 
new headquarters or offices are that they be next to our rail stations 
or accessible by public transit.
    In short, Congress' intent expressed through the Clean Air Act, the 
Federal agencies' willingness to impose sanctions and the Federal 
court's willingness to uphold the law, have significantly changed the 
dynamics of decisionmaking within the Atlanta region. Unquestionably, 
that was the reason that the newly elected Governor, Roy E. Barnes, 
convinced the state legislature to create a new state agency, the 
Georgia Regional Transportation Authority (GRTA). GRTA is empowered to 
withhold state support for transportation and other projects if local 
governments are not responsible in planning for and addressing issues 
of transportation conformity and congestion.
    The transportation conformity requirements and, ultimately, the 
threat of successful litigation are forcing communication among all 
levels of government charged with transportation and environmental 
planning. If we want more roads, then we must support other 
transportation alternatives (transit rail, HOV lanes, bikeways, buses, 
sidewalks, and commuter rail) that will allow us to achieve conformity. 
Meaningful land use planning to better support our transportation 
decisions and smart growth policies are now being debated as critical 
elements in preserving our quality of life and continued regional 
success.
    In conclusion, I would ask Congress and this Committee to move 
cautiously in considering changes to the transportation conformity 
provisions of the Clean Air Act. Change is occurring in our communities 
challenged with achieving conformity and meeting the national air 
quality standards. We continue to need help from our Federal partners 
as we seek to meet this challenge but we must solve our own problems at 
the state, local and regional level. Sadly, it is unlikely that this 
will happen without the continued insistence of the Congress in this 
matter.
                               __________
   Statement of Jacob Snow, General Manager, Regional Transportation 
                   Commission of Clark County, Nevada
I. Introduction
    Chairman Chafee, Senator Baucus, members of the Committee on 
Environment and Public Works, I am Jacob Snow, General Manager of the 
Regional Transportation Commission of Clark County, Nevada. I am here 
today to provide testimony regarding RTC's experience and 
interpretation of regional transportation planning conformity and 
programming, and the impact that recent litigation has had on these 
functions. I formally request that my full written testimony be entered 
into the record.
II. Background
    The RTC is a regional governmental entity which performs the 
following three functions:
      Directs the expenditure of funds generated from a County 
Option Motor Vehicle Fuel Tax for regional street and highway 
construction
      Serves as the Metropolitan Planning Organization (MPO) 
and facilitates the federally mandated transportation planning process 
for the Las Vegas Urbanized Area
      Provides public mass transportation within Clark County, 
Nevada.
    The RTC was established in 1965 under state statute to expend funds 
from a county-option motor vehicle fuel tax for regional street and 
highway improvements (NRS 373.030). RTC membership is set by state 
statute and is governed by elected representatives from the County of 
Clark, and Cities of Las Vegas, Henderson, North Las Vegas, Boulder 
City and Mesquite. The Director of the Nevada Department of 
Transportation sits as an ex-officio member.
    In 1981, the RTC was designated by the Governor as the Metropolitan 
Planning Organization (MPO) as defined by Federal law, for the Las 
Vegas Urbanized Area. In 1983, state legislation enabled the RTC to own 
and operate a public mass transit system to the exclusion of all others 
(NRS 373.117).
    As the MPO, the RTC directs the federally mandated cooperative, 
coordinated and continuous transportation planning process for the Las 
Vegas Urbanized Area. All Federal and state transportation projects 
must be identified and coordinated through the Regional Transportation 
Plan (RTP) and the Transportation Improvement Plan (TIP) maintained by 
the RTC. Functioning as the MPO, the RTC provides the opportunity for 
citizen and private sector participation in the transportation planning 
process.
    Provision of mass transportation by the RTC emphasizes transit's 
role as a service to the citizens of Clark County. In addition to the 
most obvious of its many functions--that of providing a base of 
essential mobility for all citizens of our rapidly growing community 
for employment, shopping and personal enrichment--transit is an 
essential element in RTC's strategy to reduce traffic congestion and 
improve regional air quality.
    The Las Vegas metropolitan area has experienced unprecedented 
growth in the past 10 years. Since the early 1990's, the region has led 
the Nation in metropolitan area growth. In fact, between 1990 and 1998 
the valley's population grew from 706,000 to over 1.3 million, 
representing an 80 percent increase in residents. During that same 
period, the number of residents employed in the valley increased by 57 
percent, growing from 353,000 to over 557,000.
    Air Quality and Transportation Planning As mandated by the Clean 
Air Act Amendments of 1990 (CAAA), states must develop a State 
Implementation Plan (SIP) addressing each pollutant for which the State 
fails to meet the National Ambient Air Quality Standards (NAAQS). In 
the case of the Las Vegas valley, SIPs are required for both Carbon 
Monoxide (CO) and Particulate Matter less that ten microns 
(PM10). The SIP indicates how the region intends to meet the 
schedules prescribed in the CAAA. Important to transportation 
conformity, emission inventories are established during the SIP 
development for stationary, area and mobile source emissions.
    In consultation with the RTC, the Health District and interested 
local jurisdictions, Clark County assigns emission reduction targets 
for each source category. For the mobile source category, the emission 
reduction target is further refined into a regulatory limit on 
emissions, referred to as a ``budget.'' The targets typically rely on 
programs that focus on specific aspects of emissions, including fuel 
technologies that yield fewer harmful pollutants, implementation of 
more rigorous programs to ensure auto emission performance (Inspection 
and Maintenance--I&M Programs), transportation control measures (TCMs) 
that promote changes in travel behavior and result in less single 
occupant vehicle (SOV) travel and programs that target congestion 
improvements. Collectively, the TCMs become part of the Transportation 
Improvement Program's (TIP) implementation priorities.
    As part of the RTC's role in conformity, the agency must ensure 
that all sources of pollution are considered via a regional emission 
analysis. This analysis includes consideration of emissions resulting 
from: estimated travel occurring within the entire network in the 
nonattainment area; the recognition within the travel model of all 
proposed regionally significant projects (travel lanes, interchanges, 
transit); and the consideration of the effects of any emission control 
programs. The emission analysis output is expressed in Vehicle Miles 
Traveled (VMT) by roadway type, which is used in the EPA's air quality 
model to estimate the daily quantity emitted into the valley's air by 
each pollutant.
    Since reclassification as a serious nonattainment area for CO, 
Clark County has been working cooperatively to prepare a revised CO SIP 
that will demonstrate attainment and establish a revised mobile source 
emission budget that the RTC can use to make future conformity 
determinations. The deadline for the submission for the serious area CO 
SIP was May 3, 1999. The CO SIP revision is expected to be submitted to 
EPA by Clark County by early October 1999.
    On the best time line, the EPA may provide an adequacy finding on 
the budget emissions by December 31st, 1999. A positive adequacy 
finding would allow the RTC to use the budget for conformity 
determinations. This time line presents a very tight schedule with 
little or no margin for unforseen issues. Of concern to the RTC is the 
fact that the long-range plan lapses on January 12, 2000, which could 
preclude the RTC from advancing projects. Projects in the TIP have been 
programmed through the period ending June 30, 2000.
    In 1997 Clark County submitted the serious area PM10 
SIP. The SIP, however, did not demonstrate attainment of the NAAQS. 
Consequently, the SIP did not identify a budget for mobile source 
emissions that the RTC can use for plan conformity, partially because a 
complete inventory of emission sources had not been part of the plan. 
Instead, the plan focused on the fact that reentrant road dust on paved 
roads played a minor part of the total PM10 emissions. In 
the absence of a mobile source emission budget, the RTC must use the 
overall betterment test, referred to as the Build versus No Build Test.
    The EPA has made it clear that until a new SIP is completed which 
demonstrates attainment, the only way the RTC can utilize the overall 
betterment test is if an inventory is completed of the paved road 
source emissions and that a strategy be identified to address emissions 
related to construction of transportation infrastructure.
    The RTC intends to assist this effort and achieve completion by 
November 1999. Together with the CO SIP mobile source emission budget 
and a roadway inventory, expected to be submitted by October, the RTC 
will be working with these emission thresholds to demonstrate plan 
conformity for the 2000-2020 RTP.
III. Consequences of EDF v. EPA Ruling to RTC
    As a result of EDF v. EPA, 167 F. 3d 641 (DC Cir. 1999), if the 
deadlines outlined above are not met, the RTC's RTP and TIP may lapse 
because no method exists to show conformity in the absence of an 
adequate or approved SIP. In looking at the consequences, the RTC 
considers the impacts of a lapsed RTP and TIP to be essentially the 
same as adopting a RTP-TIP with only projects that are exempt from air 
quality conformity. Only projects that improve system safety, support 
existing mass transit services (as opposed to service expansions), 
promote ridesharing/vanpooling and bicycle/pedestrian facilities can be 
included in an RTP-TIP that contains air quality exempt investments. 
And, while these initiatives are laudable and Clark County has made 
significant strides in all these areas, it would be very difficult to 
construct a 20-year RTP that defines over $12 billion in transportation 
investments dedicated just to projects exempt from conformity. 
Therefore, RTC's comments focus on the consequences of having a 
substantially reduced investment level in the region's transportation 
infrastructure and services.
    As a recipient of Federal Transit funds, a lapsed RTP-TIP will mean 
a delay in the advancement of transit projects that expand services 
which have obvious clean air benefits. If an air quality exempt RTP and 
TIP are approved, the Federal investment level in Clark County will 
have minimal impact on mobility, and in effect would be as detrimental 
to the regional economy as having no Federal investment whatsoever. 
Indeed, it seems contrary to good public policy that transit projects 
become at risk in the period during which an RTP and TIP lapse because 
of a failure to make a sound conformity finding.
    Second, as the County Gas Tax agency, the RTC's short-term street 
and highway program defined in the current TIP will continue under the 
provisions defined in the court ruling. This means that the RTC and 
member entities will continue to ensure that an upcoming $200 million 
bond issuance will proceed and the projects defined in the TIP and 
funded from non-Federal sources will continue.
    If the RTP-TIP lapses, the Nevada Department of Transportation 
(NDOT) may consider moving funds that were planned to be expended in 
Clark County to other regions of the State. The result of such an 
action is two-fold. First, it could mean loss of the ability to 
``flex'' NHS and STP funds for transit projects because they are no 
longer available to the region. Indeed without an RTP-TIP, the RTC and 
its member entities will have diminished leverage with the NDOT to 
ensure that transportation investment levels will remain at anticipated 
levels. Second, projects already in the pipeline will lose committed 
funds and face significant delays. This could adversely impact the 
completion of highway projects that help improve air quality 
conditions.
    A third impact is the disruption of the NEPA process. Several major 
projects including the expansion of U.S. 95 and the development of a 
fixed guideway initiative under the ETA Section 5309 program are 
currently moving toward a Record of Decision. Should SIPs not be 
submitted and the RTP-TIP lapse, no basis for project conformity will 
exist. Therefore, these projects could be significantly delayed.
    Finally, the outcome of a lapsed RTP-TIP could mean economic 
dislocations resulting from the failure to spend Federal investments in 
the region. Failure to make both highway and transit investments that 
contribute substantially to the local economy could result in job 
losses and a decline in tax revenues which support transportation. 
Thus, the region's financial condition and fiscal capacity to support 
transportation infrastructure and services could be eroded. Clearly, 
this is undesirable and counterproductive to the all-important goal of 
improving air quality.
IV. Conclusion
    Our primary premise is that the regulations promulgated by the 
Environmental Protection Agency under Section 176(c) of the 1990 Clean 
Air Act Amendments (the transportation conformity rules) fundamentally 
undermine Congress' intent to ensure that Federal funds are spent on 
projects that will contribute to eliminating or reducing the severity 
of any violation of the NAAQS. Furthermore, the transportation 
conformity regulations, and the recent decision in EDF v. EPA, work 
against MPO's efforts to achieve expeditious attainment of such 
standards, by disallowing transit projects that ultimately expand 
service and have a beneficial effect on regional air quality.
    Allow us to illustrate. With the current transportation conformity 
rule, if any MPO were to come up with a Regional Transportation Plan 
and Transportation Improvement Program that did not conform with the 
State Implementation Plan, then any federally funded or federally 
approved project would not be allowed to proceed. The environmental 
community would be pleased in this sense because they would perceive 
that implementation of such a nonconforming plan would not be conducive 
to health and welfare. Also, the environmentalists would feel as if 
they were able to control and limit growth. However, such a stringent 
rule is a double edged sword in that many federally funded projects, if 
allowed to proceed, would result in an overall decrease in hazardous 
air pollutants. An example of such a category of projects is the 
funding of transit related infrastructure.
    For example, suppose the new TIP for Clark County, NV had such a 
strong increase in vehicular miles traveled (VMT) due to extensive 
growth that the average daily emissions from the new program would 
exceed the SIP emission budget. Such a plan would not conform. This 
would mean that any new roadway projects in the TIP could not be built. 
Ironically, it would also mean that Federal funds earmarked to buy new 
buses for the transit system in Clark County, to decrease roadway 
congestion and reduce hazardous air pollutants, could not be spent. 
Such an approach is unnecessary and counterproductive to environmental 
goals.
    Fortunately, under the current Clean Air Act, to make a change 
allowing for Federal funding and Federal approvals of projects that 
will benefit air quality to go forward does not require changing the 
law, it only requires changing the regulations that attempt to 
implement the intent of the law. Since section 7506(c)(1)(b) United 
States code states that any Federal project that will contribute to 
eliminating or reducing the severity and number of violations of the 
NAAQS is a conforming project, then, ostensibly, projects such as 
enhanced bus service for high occupancy vehicle only lanes and new and 
expanded fixed guideway systems that can demonstrably show a reduction 
in hazardous air pollutants in association with their implementation 
should be allowed to proceed forward and be federally approved and 
funded.
    Furthermore, the rule does not meet with Congress' intent because 
all transportation conformity issues are not created equally. For 
example, if a major metropolitan airport needed to expand by adding a 
new air carrier runway, a new passenger terminal, and a new parking 
garage, an air quality conformity analysis would be required. However, 
because airport improvements fall under a different conformity 
regulation, called general conformity, a different set of rules apply.
    Under these different regulations, even if the new runway, 
passenger terminal and parking garage were unaccounted for in a non-
attainment area's SIP, these projects would still be allowed to go 
forward, as long as the state's emission budget was not exceeded. Even 
if the state's emission budget was exceeded, the airport projects would 
still be able to go forward as long as the airport agreed in writing to 
provide appropriate mitigation.
    Section 7506(c)(2)(D) of United States Code thus shows that 
Congress wanted no transportation projects to proceed without assurance 
that they would not undermine attainment or maintenance of current air 
quality standards. Well, quite frankly, as complex air quality modeling 
demonstrates time and time again, transit related transportation 
projects have a positive net effect on emissions budgets, yet under the 
current rules and regulations, these projects that benefit air quality 
cannot go forward.
    The overall solution to these problems is demonstrated in the win-
win scenario that is reflected in the general conformity approach. The 
project can go forward and meet the needs of the community from a 
transportation standpoint, but only if they can provide enough 
mitigation to meet the standards of the law that the project not 
contribute to any delay of reaching attainment. Clearly, these mutually 
beneficial goals can and should be pursued. This environmentally and 
developmentally balanced approach will avoid the timely and costly 
confrontation associated with the Atlanta case and other future 
unintended consequences.
                               __________
     Statement of Mark Pisano, Southern California Association of 
                              Governments
    Chairman Chafee, Members of the Committee, My name is Mark Pisano, 
Executive Director of the Southern California Association of 
Governments (SCAG). SCAG is the Metropolitan Planning Organization 
(MPO) for the six counties of San Bernardino, Ventura, Orange, 
Imperial, Riverside, and Los Angeles and the 184 cities therein, which 
makes SCAG the largest MPO in the nation. Not only is the region the 
largest in the nation, but SCAG also covers 4 air basins and 5 air 
districts. The South Coast Air Basin, within the SCAG Region, is the 
only extreme non-attainment air basin in the nation. Consequently, SCAG 
has a particularly strong interest in the conformity process. I 
appreciate the opportunity to speak on the issue of transportation air 
quality conformity.
    At the outset, I would like to state that since the process of 
conformity was reinforced by the 1990 Clean Air Act, we have found it 
to be a major tool in our efforts to plan transportation improvements 
while at the same time meeting the requirements of the Clean Air Act. 
It has provided us with a structured and flexible process that permits 
innovative policymaking in the preparation of both our transportation 
and air quality plans. Working with both the Department of 
Transportation and with EPA, and despite our extreme air quality 
designation, we have been able to successfully make conformity findings 
for two transportation plans and four Transportation Improvement 
Programs (TIPs) plus a major TIP amendment. All this has been 
accomplished despite more than 12 percent growth in population and an 
expanding economy. However, it is also very important to note that 
making conformity findings is becoming increasingly problematic for us, 
which could put into jeopardy our ability to carry on the $24 billion 
in projects currently contained in the TIP.
    Simply put, the process works and conformity works. But the process 
is also complex, and cumbersome, and we believe that improvements can 
and should be made to make it better live up to its promise. Toward 
that end, I would like to offer a few suggestions.
Issue 1: Regional Transportation Plan Emission Budget
    The emissions budget for the regional transportation plan does not 
extend past the attainment deadlines identified in the region's air 
quality plans. Consequently, when achieving the long-range attainment 
dates in the regional transportation plan, emission budgets are held 
constant at the level of the attainment year set forth in the approved 
State Implementation Plan (SIP). Thus, while our transportation plans 
reach out to 2020, and soon will proceed to 2025, attainment dates are 
held at 2010 for ozone and even earlier for other pollutants, freezing 
them at the level permitted set for transportation at the date of 
attainment. No accommodation can be made for growth, nor is there the 
ability to use technological advances to raise the budget. Also, we do 
not have the ability to take credit for actions not specifically 
covered in the rules, which severely affects growing areas. We know 
that growth will be our most important issue in the coming years as we 
add another 6 million residents to the region's present population of 
16.7 million. Having a mechanism which allows us to deal effectively 
with the impacts of growth on conformity is probably our most urgent 
need in this regard.
    Recommendation: Allow use of the build/no build test procedure 
beyond the attainment date or allow credit for the historic emissions 
reduction trends due to technological advances.
Issue 2: Timing Cycles
    The cycles for transportation planning, air quality planning and 
transportation funding are different, although, these cycles are 
interdependent. This leads to confusion and a lack of coordination. 
While the regional transportation plan process and the state 
implementation plan process occur every 3 years, funding cycles occur 
every 2 years. Thus, we are required to undertake an extra conformity 
analysis for the second tip within a single plan cycle, rather than a 
single finding for a tip which is concurrent with the conformity of the 
plan itself.
    Recommendation: a coordinated and systematic approach by Federal, 
state, regional and local agencies needs to replace the current 
inefficient system.
Issue 3: EPA's Approval Process
    The current conformity process requires scag's regional 
transportation plan to meet the air quality standards for various 
pollutants identified by the EPA-approved State Implementation Plans. 
Through the interagency consultation process, all levels of 
government--Federal, state, regional, and local--develop the most 
relevant information and data on demographics, travel behavior, and 
emissions for the State Implementation Plans. The conformity process, 
however, breaks down when EPA fails to approve new state implementation 
plans in a timely manner. Consequently, conformity analysis on scag's 
regional transportation plans, must be conducted on outdated data, 
assumptions and standards. For example, although our region adopted a 
new air plan for PM10 in 1997, EPA's failure to approve it 
means that we are still forced to use the 1994 plan and its targets 
despite significantly improved understanding of the causes and actions 
required to deal with this pollutant.
    Recommendation: Require EPA to fully participate in the interagency 
consultation process and allow the conformity analysis to be made on 
the most recently developed and approved data, which would be reviewed 
and approved by the interagency consultation team.
Issue 4: Imbalance of Impact of Sanctions for Non-attainment Status.
    While Southern California has been succcessful to date in meeting 
the requirements of conformity, we are concerned, based on the 
experience of regions not in attainment, that the Clean Air Act as 
presently written does not provide for a balance of impacts between 
transportation and other sectors. Once a region is declared out of 
transportation conformity, it is unable to restore its conformity 
through measures taken in other areas even if these are the most 
effective approaches, both economically and politically. Each sector is 
treated as a closed system and there is no incentive or provision in 
the statute to balance the impacts and responsibility based on 
effectiveness. This means, for instance, that even as the industrial 
changes technologies and eliminates major sources, no allowance is made 
in the overall accounting. Transportation funding remains frozen even 
where overall pollutants are within plan limits and cannot be resumed 
until tranportation programs restore that sector's contribution.
Issue 5: Federal Actions
    Finally, as you discuss the issue of conformity I would like you to 
consider as well the importance of further improvements in the process 
for including Federal actions under general conformity.
    We have built a strong interagency consultation process for 
transportation conformity. this process was developed in our region as 
an alternative to the rulemaking procedure set forth in the regulations 
which we felt did not meet the tests of cooperation and local 
participation. our process is based on a memorandum of understanding 
amongst the affected parties, including USDOT, CALTRANS, the California 
Air Resources Board, SCAG and the County Transportation Commissions. It 
has been cited as a national model, but is not currently included as an 
approved alternative to the rulemaking. We would like to have this 
added specifically.
    But we must also note that given the magnitude and importance of 
other Federal actions outside the province of transportation 
conformity, we would argue for a much strengthened general conformity 
process, such as we have with the department of defense on base 
closures and with the FAA on airports.
    We also need a more active inclusion of federally regulated sources 
like diesel engines, trains, ports, airports and the like in our 
planning. without full Federal participation, most especially by EPA in 
controlling these federally regulated sources, and by EPA, and the 
Departments of Commerce, HUD and Interior on Federal actions within our 
region, it will be difficult if not impossible for us at the local 
level to develop successful strategies that will allow us to keep our 
demonstrations of attainment and conformity.
    We very much look forward to working with the Congress and the 
affected Federal departments and agencies to resolve these 
deficiencies, thus permitting us to retain the ability to meet the 
challenges of the future effectively and as full partners in the 
process.
    This concludes my remarks and I would be pleased to address any 
questions which you may have regarding my testimony.
                                 ______
                                 
Responses by Mark Pisano to Additional Questions from Senator Lieberman
    Question 1: If S. 1053 were enacted, what safeguards would prevent 
a repetition of the commonly cited example of Atlanta where $1 billion 
in new road projects received exemptions from Clean Air Act just before 
the expiration of the area's Regional Transportation Plan and onset of 
a conformity lapse?
    Response. As I noted in my testimony, Southern California includes 
the only area in the Nation with an ``extreme non-attainment'' 
classification, as well as three other basins with ``severe'' 
classifications. Southern California Association of Governments' 
(SCAG's) experience has shown that the only acceptable approach to 
safeguard against lapsing and consequent attempts to ``grandfather'' 
projects is to establish feasible plans and to continue to work toward 
their implementation in the conformity process.
    The primary vehicle for this process is the formal interagency 
consultation process that we have developed, and which includes the 
active participation of all required Federal, state and regional 
agencies. Our experience has shown that when the Environmental 
Protection Agency (EPA) is a full participant, issues are resolved in a 
timely manner. However, EPA must also commit the resources and staff 
needed to keep itself in active contact and involvement with the 
technical developments as they are made. When EPA is unable to 
participate at the level needed, the process does break down, leaving 
the Region unsure of EPA's position.
    With this consultation process, the development of both 
transportation plans and state implementation plans (Sips) cannot 
proceed without the full understanding and acceptance by all parties of 
each component of the Plan as it is developed, thus preventing the kind 
of problem represented by the Atlanta case.

    Question 2: Reverting to the conformity process established prior 
to the court decision would again allow new conformity determinations 
to be based on submitted but disapproved SIP emission budgets and based 
on submitted but unreasonable or inadequate SIP budgets. What 
protection would this leave the public in seriously polluted areas 
where improper SIP submission might be used to approve new beltways or 
other sprawl-inducing roads that, once built, would produce 
substantially greater air pollution than alternative transportation 
investments and strategies? Would this not tend to then put the cleanup 
on other sectors or delay attainment of healthful air quality, 
increasing asthma deaths among children and the elderly and those with 
respiratory problems?
    Response. As with my answer above, it is SCAG's contention that 
EPA's active and ongoing involvement is the best means to avoid the 
submittal of unreasonable or inadequate budgets in the first place. 
This is especially critical in light of the continuing changes in the 
state of scientific knowledge with respect to the emissions budget. 
California's methodologies have been significantly improved from year 
to year, and the latest science is incorporated into each new SIP 
development and submittal. With EPA's participation, the acceptability 
of this information is known in advance prior to the final submittal, 
and so, where the consultation process is followed, there is no 
possibility that a submitted budget will be inadequate.

    Question 3: If the current long-term conformity time horizon--20 
years--were to shortened to the same timeframe as the attainment SIP 
process--only 3 years--how would regions inform their citizens and 
elected officials about the long-term impacts of transportation 
spending and potential contributions to traffic, sprawl, and pollution?
    Response. In a region with severe or extreme non-attainment, it is 
impossible to make an attainment demonstration within the timeframe of 
a 3-year planning horizon. The 20 year horizon of the RTP is required 
in order to make not only the longer term impacts known, but also to 
deal with measures and projects which cannot be completed within such a 
short timeframe. Full attainment relies on measures that require 
lengthy application in order to reduce the emissions to acceptable 
levels. This applies to both the introduction of new technologies 
related to emissions (fleet turnover) and to the development of transit 
and other modes designed to reduce the reliance on the automobile.
    A related issue, which is problematic within the SCAG region, is 
the lack of guidance within both the Clean Air Act and the EPA 
regulations for measures designed to deal with the post-attainment 
period of the Regional Transportation Plan. The SIPs for the SCAG 
region currently have attainment dates for various pollutants between 
2006 and 2010, whereas the RTP currently extends to 2020, and a 2025 
horizon revision is now in preparation.
    At present, there is no mechanism within the rules for dealing 
effectively with this issue. As I testified earlier, SCAG recommends 
that authority be granted to either (1) use the ``build/no build'' 
test, or (2) allow the use of historic emissions reduction trends, or 
(3) permit the transportation planning agency to propose new measures 
which the air agencies and EPA may then review for acceptability. The 
present process, unfortunately, does not allow for tradeoffs between 
mobile and stationary sources brought on by the kinds of technological 
and economic changes likely during this extended time-frame.
                               __________
      Statement of Michael A. Replogle, Environmental Defense Fund
    A vital provision of the Clean Air Act is today under attack. 
Senate Bill 1053 would reopen a loophole to let those who profit from 
building roads at taxpayer expense avoid accountability for the effects 
of their projects on public health and air quality. The bill would 
reinstate unsound regulations rejected by the U.S. Court of Appeals for 
the District of Columbia in a March 2, 1999, ruling. We urge you to 
oppose that bill and efforts to enact it or other anti-environmental 
riders here or through the appropriations process.
    The rule struck down by the Court allowed projects planned years 
ago to receive new funding agreements long after it was clear that the 
projects and the larger systems they compose would exacerbate 
violations of national air quality standards. Nearly all available 
resources in some metro areas were committed to projects that would 
worsen traffic growth, pollution, and sprawl while leaving no resources 
available for air-quality improving projects.
    Metro Atlanta provides a good example of what was wrong with the 
regulations overturned by the court and how Clean Air Act conformity 
encourages better regional problem-solving. Georgia officials knew in 
1995 that the Atlanta transportation plan could not conform with the 
State Implementation Plan emission budget for 1999. There were many 
solution available, such as adopting measures for cleaner fuels and 
vehicles, better vehicle inspection and maintenance, or smarter growth 
and transportation investments that could cut traffic growth, or 
changing their air quality plan to clean up old, dirty power plants. 
Instead, they chose to pursue a loophole. Though half of Atlanta's 
pollution comes from car and truck tailpipes, EPA' now-overturned 
regulations allowed approval of nearly $1 billion of new sprawl and 
traffic inducing road projects even after the transportation plan was 
found to grossly exceed the emission limits set in the Georgia air 
pollution plan for 1999. With 6 years of road construction activity 
exempted through this loophole, Georgia road-builders tried to stick 
the bill to everyone else for air pollution clean-up.
    It was Atlanta's reputation for a high quality of life that took 
the hit. Their massive road building effort didn't solve traffic 
problems, but brought them longest commutes in America and increasing 
air pollution violations. Atlanta business and civic leaders got the 
wake-up call, and this year established a new regional authority to 
better manage their growth, transportation, and air pollution. This is 
a Clean Air Act conformity success story in the making, helped by the 
March 2 ruling. Federal, Georgia, and Atlanta area officials last month 
signed an agreement prohibiting funds for grandfathered road projects 
until the region has a new transportation plan that conforms with Clean 
Air Act requirements. Regional authorities hope to adopt such a plan in 
March 2000. Construction continues on several hundred million dollars 
of roads approved prior to the ruling.
    The court ruling is bringing Atlanta area residents better 
transportation choices and cleaner air. Since March, several hundred 
million dollars have been redirected from highways at the edge of the 
region into projects that address pollution and transportation 
problems, including buying clean buses, building park-and-ride centers, 
HOV lanes, smart traffic signal and traveler information systems, 
reconstructed bridges and intersections, and highway safety projects.
    US DOT and EPA have issued workable legal guidance implementing the 
ruling. Nationally, the list of regions and projects affected by the 
ruling indicates a changing and shrinking list of metro areas that face 
generally short-term issues requiring problem-solving to resolve 
conflict between the transportation and air quality plans. DOT and EPA 
are trying to head off future problems before they occur. Thanks to the 
ruling, the costs of pollution cleanup-from traffic growth won't be 
automatically thrown onto utilities, small businesses, and others by 
locking in pollution-increasing commitments to road projects years in 
advance of when funding is available, as happened in Atlanta. By 
reopening the same failed loophole that allowed Atlanta to get into its 
mess, Senate bill 1053 would encourage repetition of Atlanta's 
mistakes, delaying and making more costly the attainment of healthful 
air quality across America.
    Proponents of Senate bill 1053 say the March 2 ruling would shut 
down highway construction in much of America, stunt economic 
development, increase air pollution, and endanger the traveling public. 
Just the opposite is the case.
    Highway safety projects remain exempt from Clean Air Act funding 
curbs. Smart engineers and planners will continue building highways 
under conformity that operate safely during all phases of system 
development, while managing traffic growth, expanding travel choices, 
and respecting environmental laws. In most regions that face conformity 
issues, conflicts between air quality and transportation plans will be 
resolved without great delay by adopting readily available measures 
that have been successful elsewhere, such as cleaner fuels, vehicle 
maintenance, traffic and growth management, and area and stationary 
source air pollution controls.
    No legislative fix is needed in response to the March 2 ruling. But 
if there is any effort to improve Clean Air Act implementation, we 
would suggest it make it easier for regions to add pollution and 
traffic reducing measures to their transportation plans and programs 
during conformity lapses and promote fuller consideration of the cost-
effectiveness of demand and growth management and transportation 
pricing incentives in the regional planning process.
    Thank you for your consideration.
    
    
                                 ______
                                 
          Letter submitted for the Record by Michael Replogle
                                     Defenders of Wildlife,
                           Earthjustice Legal Defense Fund,
                                Environmental Defense Fund,
                               Environmental Working Group,
                                      Friends of the Earth,
                                       Izaak Walton League,
                             League of Conservation Voters,
                              National Environmental Trust,
                         Natural Resources Defense Council,
                      Physicians for Social Responsibility,
                                               Sierra Club,
                                    Zero Population Growth,
                                                     July 13, 1999.

Protect the Clean Air Act, Please Oppose S. 1053

    Dear Senator: A key enforcement provision of the Clean Air Act is 
under attack.
    The road builders are seeking to exempt themselves from 
accountability for the effects of scores of taxpayer-financed projects 
on public health and air quality.
    On June 7th, Senator Kit Bond wrote to ask for your support for S. 
1053, which would amend the Clean Air Act and reverse the March 2, 
1999, decision (No. 97-1637) by the U.S. Court of Appeals for the 
District of Columbia in the Environmental Defense Fund (EDF) vs. 
Environmental Protection Agency (EPA).
    We urge you to oppose S. 1053 and any effort to enact it or other 
anti-environmental riders as part of the appropriations process.
    Proponents of S. 1053 assert this court ruling will increase air 
pollution, endanger the safety of the traveling public, and stunt 
economic growth.
    Just the opposite is the case. In fact, the March 2 court ruling 
will avoid the waste caused by investing Federal resources in 
transportation systems that make air pollution worse, ensuring that 
transportation
    projects are consistent with valid state air-pollution plans. The 
decision restores the incentive for regional and state transportation 
agencies to take seriously their obligation to develop metropolitan 
transportation systems that serve both mobility needs and the public 
health protection goals of clean air.
    This will cut the cost and time needed to achieve healthful air 
quality for all Americans.
    The rule struck down by the Court had been seriously abused in the 
past by allowing projects planned many years ago, but not funded, to 
receive funding agreements years after it was clear that the projects 
and the larger systems they compose would exacerbate violations of 
national air quality standards. Nearly all available resources in some 
metro areas were committed to projects that would worsen air quality by 
fostering sprawl and traffic growth while leaving no resources 
available for air-quality improving projects.
    Metropolitan Atlanta provides a good example of what was wrong with 
the rules overturned by the court and how Clean Air Act conformity 
encourages better regional problem-solving. Georgia officials knew in 
1995 that the Atlanta transportation plan could not conform with the 
State Implementation Plan (SIP) emission budget for 1999. They had many 
options available to fix this problem, such as adopting measures for 
cleaner fuels and vehicles, better vehicle inspection and maintenance, 
or smarter growth and transportation investments that could cut traffic 
growth, or changing their air quality plan to clean up old, dirty power 
plants. Instead, they sought ``grandfather'' exemptions from Clean Air 
Act review under the now-overturned EPA regulation for
    nearly $1 billion of sprawl-inducing road projects that could keep 
the road-builders busy for six or more years. The road builders, not 
environmentalists, harmed Atlanta's economic development prospects by 
exacerbating sprawl and air pollution problems, drawing critical 
attention to Atlanta's declining quality of life from sources ranging 
from USA Today (see attached article of June 18, 1999) to the Wall 
Street Journal. Atlanta business and civic leaders have now recognized 
the price of a disconnect between transportation and air quality 
planning. They have worked with a new Governor to develop new regional 
governance strategies for constructive problem-solving. This is a Clean 
Air Act conformity success story in the making, helped by the March 2, 
1999, court decision.On June 18, 1999, Federal, Georgia, and Atlanta 
regional officials agreed to cease all funding for grandfathered 
transportation projects that had not received funding approval prior to 
the March court decision, pending adoption of a new transportation plan 
that conforms with Clean Air Act requirements.
    Not one penny of transportation funding is being lost to the metro 
Atlanta region and its congressional districts due to the March 2 court 
ruling.
    Indeed, since March 1999, several hundred million dollars have been 
redirected for FY99-00 from several dozen highways at the edge of the 
region into projects that address air quality and transportation 
problems, including buying clean buses, building park-and-ride transit 
centers, HOV lanes, smart traffic signal and traveler information 
systems, bridge and intersection reconstruction, and highway safety 
projects.
    The Federal Highway Administration and Federal Transit 
Administration have issued guidance on the March 2 court ruling, most 
recently on June 18, 1999. These agencies and EPA feel they can work 
within the ruling.
    DOT's list of regions and projects affected by the ruling indicates 
a changing and shrinking list of metropolitan areas that face generally 
short-term issues requiring problem-solving to resolve conflict between 
the transportation and air quality plans. DOT and EPA are appropriately 
seeking to head off future problems before they occur.
    In conclusion, there is simply no need for a legislative fix in 
response to the March 2, 1999 conformity ruling by the U.S. Court of 
Appeals for the District of Columbia. We urge you to oppose S. 1053 and 
any efforts to amend environmental laws through the appropriations 
process.
            Sincerely,
                            Rodger Schlickeisen, President,
                                             Defenders of Wildlife.

                         Fred D. Krupp, Executive Director,
                                        Environmental Defense Fund.

                                       Ken Cook, President,
                                       Environmental Working Group.

                              Brent Blackwelder, President,
                                              Friends of the Earth.

                           Paul Hansen, Executive Director,
                                               Izaak Walton League.

                                   Deb Callahan, President,
                                     League of Conservation Voters.

                                     Phil Clapp, President,
                                      National Environmental Trust.

                                     John Adams, President,
                                 Natural Resources Defense Council.

                       Robert K. Musil, Executive Director,
                              Physicians for Social Responsibility.

                             Carl Pope, Executive Director,
                                                       Sierra Club.
                                 ______
                                 
      Factors Relevant to Determining Conformity for 20-Year Plans
    The CAA Amendments of 1990 assigned responsibility to metropolitan 
planning agencies in nonattainment areas to develop regional 
transportation systems that limit emissions from motor vehicles to the 
levels established as the maximum level that could be accommodated in 
the air shed and still meet air quality standards. For this reason, the 
regional transportation plan is to be designed to achieve the level of 
emissions (i.e., the emission budget) determined by the State as 
necessary for attainment of national ambient air quality standards 
(NAAQS) in that air shed. In most large metropolitan areas, emissions 
exceed the amounts that are necessary for attainment and must be 
reduced. The need for emission reductions is a key factor in setting 
motor vehicle emission budgets. Emissions above the levels needed to 
attain air quality standards would cause harm to health and undermine 
the purposes of the Clean Air Act.
    Key factors related to setting emission budgets include--
    1. Motor vehicle emission budgets are derived from the air quality 
analysis that determines the amount of pollutants that may be emitted 
into an urban air shed and still meet the national ambient air quality 
standards. Once the total allowable emissions in an air shed is 
determined, actual emissions must be reduced to that level. The amount 
of emissions allowed in an air shed to meet any particular air quality 
standard is controlled primarily by local atmospheric conditions, and 
therefore is not likely to change in the future.
    2. Once the total amount of emissions allowed in an air shed is 
determined, the role of the implementation plan is to limit the amount 
of emissions from sources in the air shed. The motor vehicle emission 
budget limits the total emissions from highway vehicles in the air 
shed.
                                 ______
                                 
                 Questions and Answers About Conformity
         prepared by environmental defense fund, july 14, 1999
    Question: What are the pollution and health costs related to 
transportation? Isn't the air getting cleaner?
    Response: Cars and trucks still account for 30 to 50 percent of the 
pollution that forms smog (VOC and NOx) in a large share of America's 
more seriously polluted regions and they account for a substantial 
share of small particle pollution that causes serious health problems 
in millions of Americans. Overwhelming scientific evidence points to 
the need for further reductions in Nitrogen Oxides (NOx) of 60 percent 
or more to reduce health-threatening ozone, acid rain, and water 
quality problems. Although new cars and trucks are cleaner by far than 
they used to be for VOC and CO, the emissions of NOx and PM (including 
re-entrained road dust) related to motor vehicles have dropped little 
since the 1990 Clean Air Act was passed. Cleaner vehicles have been 
offset by the rapid rise in vehicle miles of travel (VMT), especially 
in high growth areas like Atlanta or Las Vegas, where 6 to 13 percent 
annual increases in VMT are the trend. Careful attention is needed to 
assure that additional driving that is spurred by expanded roads won't 
prevent attainment and maintenance of air quality. Conformity requires 
attention to impacts on air quality before Federal funds are committed 
to building projects.


    Question: Won't technology solve all these problems?
    Response: Technology is vital, but not the whole answer to these 
problems. Large, cost-effective air pollution reductions will come from 
cutting sulfur in motor fuels and adopting Tier II emission standards 
for cars and trucks, as recently proposed by EPA.
    But national emission controls cannot offset all the emission 
increases caused by VMT growth in the fastest growing regions. In 
America's fast growth regions, strategies that reduce VMT growth can 
make low cost contributions to timely attainment and maintenance of 
healthful air quality, offering substantial benefits beyond clean air. 
These strategies include smart growth that renews existing communities 
and incentives and investments that improve transit, walking, 
bicycling, ridesharing, and telecommuting. A number of studies have 
shown these strategies together can provide additional reductions of 15 
to 25 percent in VMT, hours of vehicle travel, and emissions relative 
to automobile-dependent sprawl development over the 20 year horizon of 
long-range transportation plans.


    Question: What is transportation conformity and why is it 
important?
    Response: Under the 1990 Clean Air Act (CAA), state implementation 
plans (SIPs) for achieving healthful air quality in polluted areas 
establish emission budgets for mobile sources (e.g., cars and trucks), 
stationary sources (e.g., powerplants and factories), and area sources 
(e.g., paints, agriculture), including control strategies for 
controlling emissions from each. Trade-offs can be negotiated between 
control of various sources, encouraging exploration of the lowest cost 
means for timely attainment. The CAA requires short-term transportation 
programs and long-term (20 year) transportation plans to conform to 
these emission budgets so that new transportation approval, acceptance, 
and funding decisions will not violate the SIP or otherwise delay 
timely attainment of air quality.


    Question: What is the conflict over conformity grandfathering?
    Response: The 1990 CAA exempted old transportation projects from 
the new conformity requirements for 3 years as the new law took effect. 
Highway agencies misused this narrow exemption, creating a rolling 
grandfathering process to exempt old road projects without any time 
limit from the conformity requirements so long as some small progress 
was made on the project every 3 years. The US Court of Appeals agreed 
with EDF in March 1999 that the CAA requires project and plan approval, 
acceptance, and funding decisions to conform with SIPs as these 
decisions are made. Past reviews are not an adequate basis for current 
decisions, as the air pollution problems, plans, control strategies, 
and knowledge of the effects of projects and plans changes over time. 
The road builders are now seeking to reopen this loophole so they can 
continue to build the huge pipeline of old road projects without 
conformity review for 15 years or more after the 1990 CAA was passed.
    The June 18, 1999, DOT conformity guidance sets up the Plans, 
Specifications, and Estimates (PS&E) agreement as the point when road 
projects are grandfathered, instead of the Federal Record of Decision 
(ROD), which was the point in the process when grandfathering was 
permitted under the overturned EPA regulation. Why is the PS&E point 
any more legally valid than the ROD as a point for allowing 
transportation projects to proceed regardless of their air quality 
consequences?
    Section 106 of TEA-21 governs project approval and oversight, 
providing for the submission by each State transportation department of 
plans, specifications and estimates for approval by the Secretary for 
each proposed project. It provides for formal project agreements 
between these parties which ``shall be deemed a contractual obligation 
of the Federal Government for the payment of the Federal share of the 
cost of the project.'' (Sec.106 (a)(3)).
    Clean Air Act conformity applies, by 176(c)(2)(C), to actions 
related to project approval, acceptance, and funding.
    When a project completes its ROD, there are still further approval, 
acceptance, and funding steps that must be taken by the state and 
Federal agencies, most notably, and finally, at the point of the PS&E 
approval and project agreement, which thereby constitutes the point 
beyond which no further conformity review is required.


    Question: Will the court decision stop road construction, hurting 
jobs and economic growth?
    Response: The road builders have grossly exaggerated and 
misrepresented the effects of the March 1999 court decision. No road 
projects have been stopped permanently by conformity constraints. In 
most regions where conformity problems have surfaced, they have been 
resolved in a matter of several months through interagency 
consultations between highway and air agencies when the transportation 
and air quality plans come into conflict. In metro Atlanta, the area 
with the majority of affected road projects to date, not a penny of 
Federal funding has been lost to the region or its congressional 
districts. Many road projects continue under construction. And dozens 
of road improvements for highway safety, bridge reconstruction, 
intersection improvement, smart traffic signals, HOV lanes, park-and-
ride lots, and pedestrian and bicycle improvements are exempt from 
conformity funding curbs during the current lapse. Atlanta's economic 
growth has been tarnished more by the declining quality of life related 
to lack of transportation alternatives and long commutes, than by the 
delay in 44 road projects that regional authorities expect to resume 
once they have developed a conforming transportation plan, expected in 
March 2000. TEA-21 authorized $218 billion, with all but about $6 
billion in the form of flexible funds that can be spent on roads, 
transit, or other transportation needs.


    Question: Won't building bigger roads reduce air pollution and 
congestion?
    Response: There is overwhelming scientific evidence that in 
metropolitan areas, traffic generally expands to fill the road space 
that is provided for it, a phenomena called induced traffic. This 
occurs as people travel farther, make new trips, change their mode of 
travel, and relocate where they live, shop, or work. A 1999 study by US 
EPA (consistent with many other studies in the US and abroad) found 
that about 25 percent of growth in VMT is due to lane-mile additions, 
assuming historical rates of growth in road capacity. In the short run, 
every added lane mile generates new traffic that uses up 30 to 60 
percent of the additional capacity. In the long run, between 70 to 100 
percent of the added road capacity is used up by induced traffic.
    This induced traffic produces added congestion and air pollution 
roughly proportional to the amount of new traffic.


    Question: Won't wider roads improve highway safety and save lives? 
Will conformity delay highway safety projects?
    Response: Highway builders argue that because the accident rate per 
mile driven on 4-lane divided highways is lower than on 2-lane 
highways, making all roads wider will improve safety. This is a 
fallacy. With good highway design and traffic management, smaller roads 
that operate at lower speeds can be as safe or safer than high speed 
roads. Improved safety usually comes from reducing traffic speed 
differentials between different users of the same road, or providing 
more effective separation of different classes of road users, such as 
pedestrians, bicycles, cars, and heavy trucks. While the accident rate 
may be higher on slow speed arterial roads with a variety of traffic 
and frequent driveways, with proper speed and access management, these 
roads have lower fatality rates per traveler than many high speed 
highways, where less frequent accidents more often result in 
fatalities. True highway safety projects are exempt from funding 
constraints under conformity.


    Question: Why can't road projects that got Federal environmental 
approvals simply proceed without further review? Why test them again 
for conformity?
    Response: It is common practice in the environmental review process 
for highway projects under the National Environmental Protection Act 
(NEPA) to declare in an environmental impact statement or environmental 
assessment that the project was at some point in the past a part of a 
conforming Transportation Improvement Program or Regional 
Transportation Plan and to do no further analysis of the air quality 
effects of the project. There are many projects conceived of in the 
1960's, 1970's, or 1980's, for which funds have not yet been found in 
the late 1990's to begin construction.
    Many such projects were approved as part of a regional build/no-
build conformity analysis done in the early and mid 1990's, evaluating 
only VOC emissions, using less rigorous analysis models than available 
today. It is only in the past 18 months that many regions have 
submitted attainment SIPs with mobile source emission budgets against 
which the transportation plan emissions could be examined.
    As analysis models get better, as emission budgets are refined, and 
as control strategies for attainment are tested for their ability to 
deliver real emission reductions, it is essential that new funding 
decisions that could create a stream of new and higher long-term air 
pollution emissions be made in light of the best current information. 
Otherwise, the pollution cleanup costs for sprawl inducing new highways 
will simply be imposed on everyone else but the road builders.
    Why does grandfathering undermine local control and decisionmaking 
in transportation?
    Once a project is ``grandfathered,'' the state and Federal 
operating agencies can expend the funds allocated to that project even 
if the Metropolitan Planning Organization (MPO) decides that those 
funds are needed to implement transit or VMT-reducing measures to meet 
air quality budgets.
    In areas where conformity has lapsed, such as Atlanta, all funds 
for 6 years worth of projects were committed to projects that would 
worsen air quality.
    No funds were available to the MPO to remedy the exceedance of 
emission budgets.
    Only the decision of the U.S. Court of Appeals restored the 
authority of the MPO to re-allocate funds from ``grandfathered'' 
projects to alternatives that would reduce mobile source emissions.
    3. Once the maximum allowable emissions in an air shed is 
determined, motor vehicle emissions may be allowed to increase only if 
a) some of the allowable emissions have not been allocated to other 
sources, or b) emission reductions are required from other sources.
    4. Current EPA conformity regulations require that the once a share 
of the total allowable emissions in an air shed have been allocated by 
the State to mobile sources, that amount serves as the area's future 
motor vehicle emission budget for transportation planning purposes. 
Thus the transportation system must continue to meet the motor vehicle 
share of allowable emissions in the air shed after the NAAQS is 
attained in order to consistently meet and maintain safe levels of air 
quality.
    5. All interested stakeholders understand that once the motor 
vehicle budget is set, it will govern the development of regional 
transportation systems indefinitely into the future, and not just until 
the attainment deadline. For this reason, some cities (e.g., Denver) 
have adopted expanding budgets that increase in future years to 
accommodate VMT growth.
    6. National programs to reduce motor vehicle emissions such as Tier 
II tailpipe standards, sulfur-in-fuel standards, reformulated gasoline, 
and heavy-duty diesel program, reduce total motor vehicle emissions in 
an air shed. MPOs are automatically given credit for these reductions 
through EPA's motor vehicle emission factors used by MPOs to estimate 
conformity with regional motor vehicle emission budgets.
    7. There is no need to change the motor vehicle emission budget to 
accommodate growth in an area unless local VMT growth causes emissions 
to grow faster than national emission control programs (e.g., Tier II, 
sulfur-in-fuel standards, reformulated gasoline, heavy-duty diesel 
program) reduce motor vehicle emissions. Most nonattainment areas 
expect motor vehicle emissions to decline until 2020 because of 
proposed Federal emission control programs. Only a small number of fast 
growing areas will need to adopt local controls or VMT growth 
strategies to meet motor vehicle emission budgets.
    8. Local control measures to reduce motor vehicle emissions or slow 
VMT growth are available options to meet motor vehicle emission 
budgets. There is no evidence that any area is incapable of identifying 
available measures needed to meet motor vehicle emission budgets.
    9. Current EPA conformity regulations allow States to enlarge the 
motor vehicle emission budgets within a nonattainment area to 
accommodate greater emissions from motor vehicles either by a) 
allocating to the motor vehicle budget emissions not previously 
allocated to other sources, or b) requiring corresponding emission 
reductions from other sources when the maximum allowable emissions in 
the air shed have been allocated. Nothing in the current program 
prevents states from allocating additional emissions to motor vehicles 
as long as total emissions in the air shed are not increased above the 
maximum levels needed for attainment and maintenance of the NAAQS.
                               __________
   Statement onf Jack Kinstlinger, American Road and Transportation 
                          Builders Association
    Good morning Mr. Chairman and members of the committee. I am Jack 
Kinstlinger, chairman of the board of KCI Technologies, Inc., a 
transportation planning and design firm based in Hunt Valley, Maryland. 
I am here representing the American Road & Transportation Builders 
Association (ARTBA), which I am proud to serve as its Northeastern 
regional vice chairman. ARTBA, which has 5,000 members from both the 
public and private sectors, provides a consensus voice here in 
Washington for the $160 billion per year U.S. transportation 
construction industry.
    We deeply appreciate this opportunity to share our thoughts with 
you on Clean Air Act (CAA) transportation conformity issues. I would 
like to say at the outset that ARTBA shares your interest in assuring 
that all Americans breath clean air. We are not here today to suggest 
that the Clean Air Act needs a radical overhaul. We would, however, 
like to suggest some badly needed ``fine-tuning'' of Federal law that 
will not compromise public health from a clean air perspective, but 
will improve the efficiency of making environmentally sound and needed 
transportation investments.
    Our members design and build the transportation infrastructure-
highways, transit systems, railways, waterways and airports-that give 
Americans choice in how they travel. And with proper investment and 
planning, an integrated transportation network can help reduce traffic 
congestion that contributes to air pollution. And it is fact that 
highway improvements can prevent injuries and save lives. We believe it 
is long past time that transportation investments be viewed at the 
Federal level from a broader public health perspective.
    Conformity requirements and regulations have an enormous impact on 
the ability of state and regional governments-and our members-to 
provide, in a timely manner, highway and mass transit capital 
improvements that are necessary to address public safety concerns, 
support economic growth and alleviate time and energy-wasting, 
pollution creating traffic congestion.
    I have had extensive personal experience dealing with the 
transportation planning issues as the deputy secretary of planning for 
the Pennsylvania Department of Highways, executive director of the 
Colorado State Department of Highways Department, and as chairman of 
the Transportation Research Board's conferences on Statewide 
Transportation Planning and Moving Urban America.
    The good news on the clean air front is that the conventional view-
that there has not been much progress on air quality, that increased 
auto use is the culprit, and that controlling auto use is the solution-
is wrong. U.S. Environmental Protection Agency (EPA) data clearly show 
that the nation's air is much cleaner today than it was in 1970 when 
the original Clean Air Act was adopted. And the transportation sector 
has been at the forefront of this success story.
    Despite a 125 percent increase in motor vehicle travel in the U.S. 
since 1970, there has been a significant reduction in every 
transportation-related criteria emission. Lead emissions have been 
eliminated. Motor vehicle emissions of the precursors of ground-level 
ozone, volatile organic compounds (VOC) and carbon monoxide (CO), have 
been reduced 58 and 40 percent, respectively. Motor vehicle particulate 
matter (PM10) emissions are down 38 percent. And oxides of 
nitrogen (NOx) emissions have also been reduced.
    Several charts attached illustrate the progress that has been made.
    These improvements will get even better well in the future as ever 
cleaner vehicles replace older, dirtier ones. The proposed Tier 2 motor 
vehicle emissions standards and gasoline sulfur control requirements-
both of which ARTBA supports-will also have major, positive impacts on 
air quality without reducing the mobility of the American public.
    According to the U.S. Environmental Protection Agency (EPA), these 
two developments alone could reduce NoX emissions by nearly 800,000 
tons per year by 2007 and 1.2 million tons by 2010. By 2020, EPA 
projects NOx reductions double that amount-despite increased auto 
usage.
    The Clean Air Act provisions, which forced the new technology to be 
installed in individual automobiles, have worked well.
    But the fact is, Federal transportation conformity regulations have 
had very little to do with these dramatic improvements in air quality.
    The Clean Air Act Amendments of 1990 reflected conventional wisdom-
that reducing auto use is a primary solution to meeting Federal air 
quality standards. The transportation conformity requirements were thus 
initiated to help force a shift in Federal investment from highways 
toward mass transit infrastructure in and around urban/suburban areas.
    The theory behind conformity is that a state or regional 
transportation plan or program can be readily modified to conform with 
air quality targets by simply adding projects believed to substantially 
reduce emissions-such as the addition or extension of transit services-
or by deleting highway projects.
    Nine years later, however, that theory has been proven false.
    Research by the EPA, U.S. Department of Transportation (USDOT) and 
others over the past 10 years has conclusively demonstrated that 
infrastructure mix has a minimal impact on regional air pollutant 
emissions.
    Clean Air Through Transportation: Challenges in Meeting National 
Air Quality Standards, a joint report from the EPA and USDOT, issued in 
August 1993, articulates this point using ``real world'' experience 
from California:
    ``For both San Diego and Los Angeles, the most capital-intensive 
investments resulted in the smallest percentage decreases in emissions. 
For example, a 20-mile extension of San Diego's light rail line is 
expected to reduce HC and CO emissions (from mobile sources) by less 
than 0.4 percent and 0.6 percent, respectively. Similarly, construction 
of an extensive rail transit system in southern California is expected 
to reduce HC emissions by about 1 percent and CO emissions by 3 
percent, even in conjunction with area-wide adoption of measures to 
increase its use.
    ``Another study by the Metropolitan Transportation Commission, San 
Francisco's MPO, showed that an $11 billion investment in 
transportation initiatives will yield a 0.9 percent and 0.8 percent 
reduction in CO and HC emissions, respectively. San Francisco's 
investments were primarily composed of new transit lines, HOV lanes and 
local arterial improvements. The analysis showed little difference 
between large mass transit projects and large highway projects. 
[Emphasis added]
    ``The low projected emission reduction is unsurprising. San 
Francisco and many other nonattainment areas have massive 
transportation infrastructures already in place. Further investment, 
even $11 billion worth, only marginally changes the existing 
infrastructure and consequently has a marginal impact on emissions as 
well.'' [Emphasis added]
    These vanishingly small air quality impacts, we believe, are 
dwarfed by the adverse public health and safety consequences of 
delaying or preventing needed improvements to our transportation 
system.
    I'd bet that most members of the public, the media and the Congress 
with an interest in clean air or transportation conformity assume that 
when a community fails their conformity determination, it is because 
emissions are rising and air quality is worsening. If that were true, 
it would certainly be hard to argue that the transportation sector 
shouldn't be required to do something more to improve air quality.
    But that's not what is happening at all with conformity when a 
community fails its conformity determination.
    Section 176 (1)(A) and (b) of the Clean Air Act defines conformity 
simply as a match between the mobile source emissions budget in a State 
Implementation Plan (SIP) and what the mobile sector is producing-or 
projected to produce.
    All SIPs show continued reductions in mobile source emissions, at 
least through 2010. Conformity failure simply means that mobile sector 
emissions are not projected to decline quite as fast as the state SIP 
says they should. These projections, of course, are based on models 
whose uncertainties could overwhelm any projected emissions difference. 
The other problem is that states make a political decision and set the 
mobile source emissions budget too tight. Why? To lessen the emissions 
reduction burden on stationary sources, which, by the way, have not 
reduced their overall emissions since 1970 to the same extent the 
mobile sector has.
    Conformity needs to be redefined. Federal law should not be forcing 
a tradeoff between transportation improvements and non-transportation 
energy use and business activity.
    The law should also acknowledge that the computer modeling used to 
determine short- and long-range (20 year) mobile source emission 
projections used in SIPs is an inexact science.
    The conformity ``black box'' emission projections are an exercise 
in fantasy. Federal conformity requirements are forcing state and local 
governments to go through long and costly modeling exercises that are 
based on nothing more than guesses.
    No one knows with any degree of certainty what national, state and 
local economies will be 12 to 20 years from now. We can guess, but we 
don't know. We can guess, but we don't know, what a state or region's 
demographics will look like in 2020.
    These are the types of inputs, however, that go into the computer 
modeling that determines transportation conformity within a SIP.
    Compounding the problem, the models don't account for new, cleaner 
automotive and motor fuel technologies that we know are on the horizon 
and are going to have a major impact on future mobile source emissions.
    These problems could be meaningfully addressed, if Federal law was 
fine-tuned to give state and local governments a five to 10 percent 
``margin of error'' allowance on their mobile source emissions 
projections used in SIPs. This would acknowledge-without compromising 
public health from an air quality perspective-the inherent ``guesses'' 
in conformity modeling.
    With this change, we would not be talking about transportation 
conformance failures. There would be very few. Needed highway and 
transit improvement projects would not be needlessly delayed or 
stopped. And air quality improvements in the transportation sector 
would still continue at the same rate they would have otherwise. It 
would be a ``win-win'' situation.
    Unfortunately, the ``Catch 22'' nature of the current CAA 
transportation conformity rules is being manipulated by a small 
minority who are philosophically opposed to highway improvements to 
delay or stop them. Their usual vehicle is the court system.
    They challenge common-sense rules designed to recognize that 
government bureaucracies can't always move fast enough to meet rigid 
deadlines-particularly when those opposed to progress use all available 
opportunities to slow the administrative process down.
    The tragedy is that delaying environmentally sound highway 
improvements hurts and kills people.
    According to U.S. Department of Transportation research, poor road 
conditions or obsolete road and bridge alignments are a factor in 
12,000 highway-related deaths each year. That's four times the number 
of Americans killed in accidental fires and a third more than die 
annually of asthma and bronchitis combined.
    How many more die needlessly because congested road conditions 
impede emergency vehicles? Those are public health issues that should 
not be ignored.
    The March 2, 1999, Federal court decision in Environmental Defense 
Fund vs. EPA (EDF vs. EPA) is a case in point. And, as we have already 
seen in Atlanta, Georgia, Federal agency application of this ruling 
will cause unnecessary delays-perhaps even permanently stop-
environmentally sound highway and transit projects from moving forward.
    In Atlanta, 44 of 61 highway projects that had met every 
environmental test and had received final approval are now in limbo 
because the area has a lapsed SIP. The only reason these projects are 
on hold-or in doubt-is because two Federal judges inferred an intent on 
the part of Congress that was contrary to a common sense EPA rule.
    The March 2 decision struck down an EPA rule that allowed highway 
projects that had already passed every environmental test to proceed 
even if, at some point in the future, there was a lapse in SIP 
approval, or a determination of conformity failure.
    EPA had it right in 1995, when it proposed the so-called 
``grandfathering'' rule. The agency's rationale is articulated in its 
arguments to the court in EDF vs. EPA asking the court to affirm its 
rule:
    ``EPA's rule reflects its rational judgment that Congress intended 
a more reasoned approach to transportation planning during periods in 
which there is no applicable SIP, that Congress intended that there be 
an attempt to balance the general pollution-reduction requirements of 
the Act with the needs of state and local planning organizations for 
certainty and finality in their transportation planning processes. 42 
U.S.C. @ 7506(c)(2). [EDF v. EPA, Case No. 97-1637, Respondents' Brief, 
June 10, 1998, page 30.]
    ``EPA explained that it `has always believed that there should only 
be one point in the transportation planning process at which a project-
level conformity determination is necessary. This maintains stability 
and efficiency in the transportation planning process.''' [Emphasis 
added. EDF v. EPA, Case No. 97-1637, Respondents' Brief, June 10, 1998, 
page 36.]
    We hope the agency still strongly believes that it is in the public 
interest to maintain stability and efficiency in transportation 
programs and that these programs not be placed in ``double jeopardy'' 
due to administrative delays.
    We are very disappointed that the Administration did not appeal the 
March 2 decision in defense of its rule.
    The USDOT and EPA told us they feared a loss of an appeal could 
have ``worsened'' the situation for highway approvals in areas with a 
lapsed SIP. We disagreed with that assessment from both legal and 
practical standpoints.
    We are now dealing with the consequences of that decision. The 
guidance the EPA and U.S. DOT issued May 14 and June 18 to their field 
offices for compliance with the March 2 decision, in our opinion, 
provides a recipe for delay-particularly for new highway projects.
    The guidance essentially says that EPA is going to tighten up its 
SIP administrative review and approval process and make decisions in a 
more timely manner. History suggests otherwise.
    Since 1997, the agency has completed 34 SIP adequacy reviews, 
approving nearly two-thirds.
    EPA tells us that they currently have 21 SIP submissions pending 
for adequacy review. Under the guidance sent out May 14, EPA said that 
it would complete reviews on these SIPs within 90 days of submission. 
The public comment period for the 21 pending submissions will be 
completed this month.
    We are extremely skeptical that they can meet that deadline, given 
the expanded workload.
    EPA, of course, does not control all of the factors that can result 
in a SIP lapse. Local planners must make timely submissions in order 
for EPA to act. The guidance is silent on this subject. One wonders how 
EPA and USDOT plan to speed up the local process.
    The guidance also does nothing to address the problem of delays 
inevitably brought by lawsuits filed by project opponents.
    The ``bottom line'' is that the March 2 decision in EDF vs. EPA, 
made a bad situation even worse. We urge the Congress to make a 
``surgical'' change to the Clean Air Act that makes clear that EPA's 
``grandfathering'' approach, indeed, reflected the desire of Congress 
to balance environmental protection with the need to make timely and 
final decisions on environmentally sound, needed transportation 
improvement projects.
    We support a legislative remedy like S. 1053, which has been 
introduced by Sen. Bond. This approach would simply take the conformity 
process back to where it was on March 1, 1999, before the ruling in EDF 
vs. EPA.
    Such an action will have no negative impact on public health. To 
the contrary, we believe it will prevent some injuries and save lives 
by ensuring that needed highway safety improvements are not 
unnecessarily delayed by administrative inefficiencies.
    That completes our comments. Again, thank you, Mr. Chairman and 
members of the Committee, for asking us to participate in this hearing. 
I would be happy to try to answer any questions you might have. 














 Statement of Brian A. Mills, Commissioner, Cass County, Missouri, on 
    behalf of the Association of Metropolitan Planning Organizations
    Mr. Chairman and Members of the Senate Environment and Public Works 
Committee, I am Brian Mills, Commissioner for Cass County, Missouri. I 
am submitting written testimony at the invitation of Senator 
Christopher ``Kit'' Bond, U.S. Senator for the State of Missouri, on 
behalf of the Association of Metropolitan Planning Organizations of 
which I am Chairman of the Board of Directors. I want to thank you and 
Members of this Committee for holding this hearing on transportation/
air quality conformity, an extremely complex and challenging issue to 
the transportation and environmental community.
    AMPO represents the interests of Metropolitan Planning 
Organizations, which are regional transportation planning 
organizations, and assists them in developing plans for multi-modal 
transportation systems that address issues of air quality, welfare 
reform and growth. AMPO is a program of the National Association of 
Regional Councils (NARC). NARC represents the regional councils of 
governments, regional planning and development districts, regional 
transportation planning organizations and other groups that foster 
local cooperation and coordinate the delivery of Federal and state 
programs which address cross-cutting economic, environmental, equity 
and growth challenges.
    I would like to begin by commending the work of the Senate 
Environment & Public Works Subcommittee on Transportation and 
Infrastructure. The series of hearings held by the Subcommittee on the 
implementation of the Transportation Equity Act for the 21st Century 
(TEA-21) has highlighted the uncertainty created by the March 2 
decision of the U.S. Court of Appeals for the District of Columbia 
regarding transportation/air quality conformity. That decision, which 
overturned key provisions of the U.S. Environmental Protection Agency's 
third set of transportation conformity amendments, will affect all non-
attainment areas. The decision's elimination of the ``grandfathering'' 
provision in the conformity regulations means that any in non-
attainment areas where transportation conformity has lapsed, regionally 
significant projects that are federally funded, as well as most non-
federally funded projects, cannot proceed regardless of how far along 
in the project development process they are. In other words, projects 
can only proceed if hill commitment for funding, as defined by both the 
Federal Highway Administration and Federal Transit Administration, has 
been made. In addition, all areas with SIPs that have lapsed because 
transportation emissions budgets have not been approved must use the 
Build/No Build test to move projects forward. Despite broad concern 
within the transportation and environmental communities that the Build/
No Build test is seriously flawed, the March 2 decision would apply 
this test in cases of lapsed SIPs until objections to a SIP's emissions 
budget have been rectified. Because of earlier concerns about the 
Build/No Build test. the third set of conformity regulation amendments 
in 1996 replaced this test with a requirement to adhere to mobile 
source emissions budgets.
    We believe the passage of Senator Kit Bond's legislation S. 1053 
will rectify the problems created by the March 2 court decision. The 
legislation will codify into law the transportation conformity 
regulations established by U.S. EPA prior to the March 2 Circuit Court 
decision and restore the necessary stability and flexibility to a 
complex and rigid set of regulations. This is essential for ensuring 
consistency and continuity to the transportation planning and 
programming development process. In addition to this testimony, we have 
provided the committee a copy of a joint letter from the National 
Association of Regional Councils and the Association of Metropolitan 
Planning Organizations supporting Senator Bond's transportation 
conformity legislation.
    While Senator Bond's legislation begins the difficult task of 
dealing with the issue of transportation conformity, we would like to 
call to the committee's attention an even more pervasive conformity 
issue: the time-horizon mismatch between State Implementation Plans 
(SIPs) for air quality improvement and transportation plans developed 
by MPOs. This issue has been raised as a priority by AMPO members and 
by other nationally significant transportation organizations, such as 
the American Association of State Highway and Transportation Officials.
    The Clean Air Act Amendments of 1990 (CAAA) defined 
``transportation/air quality conformity'' and the U.S. Environmental 
Protection Agency subsequently issued extensive regulations outlining 
the conformity process. As part of this process, all non-attainment 
areas were given a deadline by which they must reach attainment of 
their air quality goals, a date determined by air quality severity. 
Once an area reaches its attainment goal, the conformity process 
dictates that these same areas demonstrate their ability to stay ``in 
attainment'' through a ``maintenance plan'', which extends 10 years 
beyond the attainment date. A year after the CAAA, the Intermodal 
Surface Transportation Efficiency Act of 1991 (ISTEA) for the first 
time mandated MPOs to develop a 20-year long range transportation plan 
and required a demonstration of conformity between these transportation 
plans and air quality goals as outlined by the 1990 CAAA and U.S. EPA. 
Under this scenario, the current conformity rule has created a mismatch 
of 10 years or more between the time horizon of the State 
Implementation Plans (SIPs) for air quality improvement and the 20-year 
transportation plans developed by MPOs.
    The significance of the time-horizon mismatch is that the SIP's 
attainment or maintenance year budgets for future mobile source 
emissions are capped at the level indicated in the attainment or 
maintenance plan. This denies local elected officials the ability to 
negotiate tradeoffs among stationary, area and mobile source emissions 
for the purpose of demonstrating conformity for the out-years (the 
remaining 10 years or more of the long range transportation plan), thus 
placing the burden for attainment solely upon transportation-related 
measures.
    Our suggested method from resolving this problem is to require that 
the long-range transportation plan only demonstrate conformity with the 
operative SIP emissions budget. This suggested remedy would greatly 
assist Metropolitan Planning Organizations. We have included with our 
testimony our position paper on this issue as well as a proposal for 
resolving this problem, which includes suggested legislative language 
to amend the MPO planning provisions in both the highway and transit 
laws.
    On behalf of the Association of Metropolitan Planning 
Organizations, I would like to thank the Chairman and the Committee 
members for the opportunity to address the issue of transportation/air 
quality conformity. We stand ready to participate and support you and 
the Committee's efforts to resolve this very complex and challenging 
issue.
                               __________
         [From the Atlanta Journal-Constitution, March 5, 1999
                   Dead End for State's Road Builders
    Georgia's road builders have shown a stubborn ability to ignore the 
writing on the wall. On Tuesday, however, a Federal appeals court in 
Washington hung out a stop sign so large that even Georgia can't ignore 
it.
    Before that ruling, metro Atlanta already faced the future loss of 
billions of dollars in Federal transportation aid because of dirty air. 
The only silver lining in that dark cloud was its ability to at least 
complete construction on $700 million on road projects under way in 
some form or another. The court ruling, however, may take away even 
that silver lining. In fact, an attorney for the Environmental Defense 
Fund, which filed the suit in question, called Atlanta the key example 
in the court's finding. The judges ruled that the Federal Environmental 
Protection Agency had exceeded its legal authority by granting Atlanta 
and other cities exceptions to allow them to keep building highways 
even after the cities had failed to comply with the Clean Air Act. The 
judgment could have an effect on two other lawsuits filed against local 
road projects. Those lawsuits, by environmental groups, also claim that 
State and Federal officials exceeded their legal authority in allowing 
continued funding of 61 road projects in metro Atlanta.
    The message for Atlanta and other cities couldn't be more clear: 
Stop using dodges to get more money to build roads that only add to 
poor air quality. Come up with transportation plans that confront the 
problem directly by lowering the number of cars on metro roads.
    The State Department of Transportation has long had the power to 
divert road-building money into transportation alternatives that would 
benefit the environment, but until recently it has shown little 
inclination to do so. The Atlanta Regional Commissions on the other 
hand, has had the inclination but lacks the power.
    Governor Roy Barnes' bill creating a Georgia Regional 
Transportation Authority is the best hope for finding solutions that 
will make the air safe to breathe and bring the area into compliance 
with Federal law. The state House of Representatives approved the bill 
overwhelmingly on Thursday, and the State Senate approved it last 
month, so progress is occurring.
    Gradually, the realization is sinking in that times have changed. 
Georgia cannot continue to pave and pour concrete without concern for 
the impact on the environment and human health. This week's Federal 
court ruling is just another shove in the right direction.
                                 ______
                                 
         [From the Atlanta Journal-Constitution, March 4, 1999]
                      Ruling May Halt Metro Roads
                   judges reject clean air exception
    A Federal Court ruling in Washington could block most or all of 
metro Atlanta's 61 ``grandfathered'' road projects, which were 
permitted after the region fell afoul of the Clean Air Act last year.
    Ruling in a lawsuit by the Environmental Defense Fund against 
Federal environmental, and transportation, agencies, a three judge U.S. 
Court of Appeals panel on Tuesday declared illegal the regulations that 
permit Federal agencies to fund road projects in areas that violate 
Clean Air laws.
    The ruling is expected to have a major impact on $700 million worth 
of metro Atlanta road projects. It also appears to give a powerful 
boost to two separate lawsuits in Atlanta by local and national 
advocacy groups, which argued that Federal officials allowed the 
Georgia Department of Transportation to abuse the grandfathering 
provision.
    ``My reading of the case is that it says all of the grandfathered 
projects in the Atlanta region were illegally approved,'' said Wesley 
Woolf of the Southern Environmental Law Center.
    Asked if the ruling increases the likelihood he and his clients 
will seek a court order to stop such projects from moving through the 
pipeline, Woolf said, ``Yes.'' But he added that he hoped a settlement 
could be negotiated first that would divert much of the road money to 
alternatives to motorists' driving alone.
    Attorneys with The U.S. Environmental Protection Agency and the 
Federal Highway Administration said Wednesday that they still were 
digesting the decision. The agencies have 45 days to decide whether to 
appeal to the full circuit of judges. Top officials at the state 
transportation department did not return telephone calls seeking their 
reaction.
    Under the Clean Air Act, Federal funds may be spent only on road 
projects that are part of a metrowide plan that can be shown to stay 
within limits on vehicle emissions. The Atlanta Regional Commission, 
the area's planning agency and the Georgia Department of Transportation 
have been unable to do that since 1995. The last plan expired in 
January, 1998; no new road projects can receive Federal funds until the 
region has a plan that improves the air
    When Congress updated the Clean Air Act in 1990, it intended for 
road building to come to a halt when metro areas fail to make progress 
in meeting standards for healthful air. To protect taxpayers' 
investments, Congress included a grandfathering provision that allowed 
projects that were well along to continue to completion.
    But the judges ruled Tuesday that Congress never envisioned that, 
as happened in Atlanta, dozens of such projects would be compiled into 
a new plan that was. never tested for its effects on air quality. Just 
because a project had been part of a so-called conforming plan in the 
past did not mean it was good for air quality, today, the judges wrote.
    Atlanta, in fact, was the key test case cited in the suit, said 
Robert, Yuhnke, the attorney representing the Environmental Defense 
Fund in its lawsuit.
    ``Atlanta definitely is the poster child for the problem,'' said 
Yuhnke, who is also representing the fund and others in one of the 
Atlanta lawsuits.``During the oral argument in the case, the court 
learned a lot about what was going on in Atlanta as an example of what 
was wrong. They were very interested and asked a lot of questions about 
the situation in Atlanta.''
    The court's ruling means Federal transportation officials can't 
sign off on funding for projects that aren't already under 
construction, Yuhnke said. Only 14 of the Georgia projects have 
received such approval, said Larry Dreihaup, director of the Federal 
Highway Administration's Georgia division.
    ``The world as we knew it just ended in the business of 
transportation,'' said Sam Williams, president of the Metro Atlanta 
Chamber of Commerce. ``It calls out in an even louder voice the need to 
get into conformity immediately. It puts even more at stake, and it 
reinforces the need to have a regional authority that can get a handle 
on these problems.''
    Governor Roy Barnes has proposed the creation of a Georgia Regional 
Transportation Authority as the final arbiter for transportation 
decisions in the region.
    Any road projects that are disqualified by the court ruling could 
be put into the Atlanta Regional Commission's next plan, that plan 
meets emissions standards. ARC Director Larry West has said his agency 
aims to have a legally approved plan by spring of next year.
                                 ______
                                 
                    [From USA Today, June 18, 1999]
               Atlanta Fights the Downside of Prosperity
                          (By Larry Copeland)
    Atlanta.--Michael Popkin was born in the city and now owns a small 
publishing company up the road in Marietta He remembers when Atlanta 
moseyed, when folks rarely griped about traffic, when smog was a West 
Coast concept.
    Deborah Rucker recalls fondly when commuting from Hall County to 
downtown was a breeze There was only one set of traffic lights in her 
town and no one feared being late because of gridlock.
    Ah, those pre-sprawl days.
    Now, Popkin, 49, has settled into a house in the suburbs. He picked 
the neighborhood partly because it would let him commute against 
traffic But he worries that he's losing potential employees because 
they don't want to face the daily trek to Marietta. He frets about his 
health because of the brownish haze that tints the Atlanta sky.
    Rucker, 51, finds she needs a trip to the family farm in rural 
Georgia now and then, a quick fix of open spaces She says the daily 
gridlock had become such a grind that she took a pay cut so she could 
telecommute and work from home ``It is horrible,'' she says ``I just 
didn't want to deal with it anymore.''
    Popkin and Rucker don't know each other and don't have that much in 
common. They're merely two Atlantans, two among 3.5 million, who have 
seen their lives altered by suburban sprawl.
    Across the nation, sprawl--growth designed primarily around 
automobile access--has joined such perennials as crime and education as 
quality-of-life issues that people care about passionately In last 
fall's elections, voters in 19 states approved more than 70 percent of 
ballot measures to protect and preserve sprawl-threatened green spaces, 
says Phyllis Myers, president of State Resource Strategies, a 
Washington, DC, consulting firm. Suburban voters increasingly are fed 
up with sprawl's consequences, and businesses are worried that 
gridlocked roads and long commutes are hurting their ability to attract 
and keep employees.
    Atlanta, where growth has been equated with success for decades, is 
the nation's latest cautionary tale on the problems of sprawling 
growth: traffic congestion' poor air quality and disappearing green 
space.
    ``Certainly, Atlanta has become the poster child for sprawl,'' says 
Edward Thompson Jr., senior vice president of American Farmland Trust 
in Washington, DC ``Among those who work on these kinds of issues full 
time, there is no question that Atlanta is sort of Exhibit A.''
    The region doesn't like that label. So it's launching an ambitious 
effort to control sprawl that, if it succeeds, could be a blueprint for 
other regions. The effort is anchored by a new regional transit 
authority that is to have unprecedented powers. The first members of 
the Georgia Regional Transit Authority, which Governor Roy Barnes 
pushed through the Legislature in March, were sworn in last week.
    They are to have nearly unlimited say on almost every aspect of 
transportation in the region--from building and widening roads, to 
creating a carpooling system, to building a new regional transit system 
or coordinating existing ones They will be able to issue $1 billion in 
revenue bonds and tap another $1 billion in general bonds. Their 
rulings will affect zoning decisions. They even will have control over 
new business sites.
    GRTA, called Greta by Atlantans, is the new superagency expected to 
be immune to the regional factionalism and political tampering that 
hampered such initiatives in the past. Its decisions can be overruled 
only by a three-quarters majority of local governments But such a vote 
would risk losing Federal and state transportation money, because GRTA 
has the final say over all expenditures of those funds.
    Even with all that muscle, the new agency's success hinges on 
convincing Atlantans to do what they have long rejected: Get out of 
their cars.
    Nobody expects that to be easy Atlanta has tried before, with 
Metropolitan Atlanta Rapid Transit Authority (MARTA) But when MARTA, 
which controls buses and subways in two counties, tried to influence 
commuting habits of Atlantans, it was spurned ``It's going to be very 
difficult,'' GRTA Chairman Joel Cowan says. ``We've got to get people 
to take that first step toward getting out of their cars.''
    He says GRTA likely will try to do that initially with a modest 
plan that combines carpooling and low-polluting compressed natural gas 
buses. ``That helps achieve the desired environmental impact, and it's 
an easier step for that critical cultural change.''
    Once Atlantans accept mass transit as a viable alternative, he 
believes, they will be more receptive to traditional forms of mass 
transit.
    During the past decade, metropolitan Atlanta has grown faster than 
any other city in the country, adding nearly a half-million out-of-
state residents since 1990 and stretching from 65 miles north to south 
to 110 miles.
    They're still coming.
    Last year, in fact, the metropolitan area had three of the nation's 
10 fastest-growing counties: Forsyth, Henry and Paulding, according to 
the U.S. Census Bureau.
    That growth has come a cost. Metropolitan Atlanta heads into the 
21st century as an endless stretch of strip shopping centers, large and 
small subdivisions and huge malls. Its rivers are among the nation's 
most imperiled, and developers are clearing 50 acres of tree cover a 
day.
    But traffic is where sprawl gnaws hardest at the daily lives of 
Atlantans. Drivers here endure the nation's longest commute--an average 
daily round trip of 34 miles for every person in Atlanta. Dozens of new 
road projects have been stalled because the region violates the Federal 
Clean Air Act.
    ``What bothers me is when you look at the horizon and you see that 
band of pollution,'' says Popkin, who grew up in northwest Atlanta in 
the 1950's and 1960's and is the owner of Active Parenting Publishers 
``When I was growing up, it was blue skies from horizon to horizon ``
    Popkin's company, which develops videos and books for parenting 
education courses, employs 20 people When a position comes open and he 
tries to hire, he doesn't always get the person he wants. He points to 
sprawl as a reason.
    ``Sometimes, when we're interviewing for a position, I've lost 
candidates because Atlanta has gotten so big that if they live on the 
other side of town, they say they don't want to commute all the way to 
Marietta,'' he says.
    When Popkin was growing up, he rode the bus from northwest Atlanta 
downtown to Georgia Tech football games, where he sold Coca-Cola. ``It 
seemed very, very easy to get around back then,'' Popkin says ``Atlanta 
was much more self-contained. Sandy Springs (a suburb 20 miles north of 
Atlanta) was considered way out.''
    Now, a simple delay on one of the area's critical highways--I-85, 
I-75, I-20, I-285--often stalls traffic across the whole region for 
hours.
    ``The interstates are nothing more than local roads,'' says Jim 
Chapman, executive director of Georgians for Transportation 
Alternatives, a coalition of groups seeking public support for 
alternatives to roads. ``You start to think, ``Why do we have to drive 
so much to meet our daily needs?' It's just the way the area grew.''
    In 1985, when Rucker moved back to Georgia from Broward County, 
Florida, the population boom had only just begun She split her time 
between Atlanta and Oakwood, out in Hall County, north of the city 
``That was kind of a bedroom community of Atlanta, and the traffic 
wasn't bad at all,'' she says. ``There was only one traffic light, and 
that was when you got off the expressway. There was one bank, and no 
hotels.
    ``Now there are six banks on one street and four or Eve motels What 
used to be open space and open fields has now become strip malls.'' 
Eventually, Pucker quit commuting ``It just got to the point where I 
couldn't take it anymore,'' she says. ``I just couldn't deal with being 
stuck in that traffic anymore.''
    Rucker and Popkin, like others here and in other areas that are 
beginning to suffer sprawl problems, are watching closely to see what 
Barnes and GRTA do. They have their fingers crossed.
    Barnes, a veteran state legislator who took office in January, was 
born and raised in suburban Cobb County, and says his awareness of 
sprawl came gradually. ``There was no moment of epiphany,'' he says. 
``But Cobb County, which used to be some 50,000 people, started to grow 
in the 1960's and now there are more than 500,000.
    ``I saw the changes that occurred, and I knew that sprawl, as 
opposed to planned growth was something we had to address, for air 
quality and quality of life.''
    ``For the first time in my life, I'm thinking about whether I want 
to stay, whether I want to remain here after retirement,'' Popkin says. 
``I'm wondering what's Atlanta going to be like in 12 years, and 
whether I'll want to still be here.''

                                  
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