[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



CLEAN AIR ACT TRANSPORTATION CONFORMITY PROVISIONS CONTAINED IN H.R. 3, 
         ``THE TRANSPORTATION EQUITY ACT: A LEGACY FOR USERS''

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

                                HEARING

                               before the

                 SUBCOMMITTEE ON ENERGY AND AIR QUALITY

                                 of the

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 2, 2005

                               __________

                           Serial No. 109-11

                               __________

       Printed for the use of the Committee on Energy and Commerce


 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house

                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
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_____________________________________________________________________________
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                    ------------------------------  

                    COMMITTEE ON ENERGY AND COMMERCE

                      JOE BARTON, Texas, Chairman

RALPH M. HALL, Texas                 JOHN D. DINGELL, Michigan
MICHAEL BILIRAKIS, Florida             Ranking Member
  Vice Chairman                      HENRY A. WAXMAN, California
FRED UPTON, Michigan                 EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida               RICK BOUCHER, Virginia
PAUL E. GILLMOR, Ohio                EDOLPHUS TOWNS, New York
NATHAN DEAL, Georgia                 FRANK PALLONE, Jr., New Jersey
ED WHITFIELD, Kentucky               SHERROD BROWN, Ohio
CHARLIE NORWOOD, Georgia             BART GORDON, Tennessee
BARBARA CUBIN, Wyoming               BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois               ANNA G. ESHOO, California
HEATHER WILSON, New Mexico           BART STUPAK, Michigan
JOHN B. SHADEGG, Arizona             ELIOT L. ENGEL, New York
CHARLES W. ``CHIP'' PICKERING,       ALBERT R. WYNN, Maryland
Mississippi, Vice Chairman           GENE GREEN, Texas
VITO FOSSELLA, New York              TED STRICKLAND, Ohio
ROY BLUNT, Missouri                  DIANA DeGETTE, Colorado
STEVE BUYER, Indiana                 LOIS CAPPS, California
GEORGE RADANOVICH, California        MIKE DOYLE, Pennsylvania
CHARLES F. BASS, New Hampshire       TOM ALLEN, Maine
JOSEPH R. PITTS, Pennsylvania        JIM DAVIS, Florida
MARY BONO, California                JAN SCHAKOWSKY, Illinois
GREG WALDEN, Oregon                  HILDA L. SOLIS, California
LEE TERRY, Nebraska                  CHARLES A. GONZALEZ, Texas
MIKE FERGUSON, New Jersey            JAY INSLEE, Washington
MIKE ROGERS, Michigan                TAMMY BALDWIN, Wisconsin
C.L. ``BUTCH'' OTTER, Idaho          MIKE ROSS, Arkansas
SUE MYRICK, North Carolina
JOHN SULLIVAN, Oklahoma
TIM MURPHY, Pennsylvania
MICHAEL C. BURGESS, Texas
MARSHA BLACKBURN, Tennessee

                      Bud Albright, Staff Director

      James D. Barnette, Deputy Staff Director and General Counsel

      Reid P.F. Stuntz, Minority Staff Director and Chief Counsel

                                 ______

                 Subcommittee on Energy and Air Quality

                     RALPH M. HALL, Texas, Chairman

MICHAEL BILIRAKIS, Florida           RICK BOUCHER, Virginia
ED WHITFIELD, Kentucky                 (Ranking Member)
CHARLIE NORWOOD, Georgia             MIKE ROSS, Arkansas
JOHN SHIMKUS, Illinois               HENRY A. WAXMAN, California
HEATHER WILSON, New Mexico           EDWARD J. MARKEY, Massachusetts
JOHN B. SHADEGG, Arizona             ELIOT L. ENGEL, New York
CHARLES W. ``CHIP'' PICKERING,       ALBERT R. WYNN, Maryland
Mississippi                          GENE GREEN, Texas
VITO FOSSELLA, New York              TED STRICKLAND, Ohio
GEORGE RADANOVICH, California        LOIS CAPPS, California
MARY BONO, California                MIKE DOYLE, Pennsylvania
GREG WALDEN, Oregon                  TOM ALLEN, Maine
MIKE ROGERS, Michigan                JIM DAVIS, Florida
C.L. ``BUTCH'' OTTER, Idaho          HILDA L. SOLIS, California
JOHN SULLIVAN, Oklahoma              CHARLES A. GONZALEZ, Texas
TIM MURPHY, Pennsylvania             JOHN D. DINGELL, Michigan,
MICHAEL C. BURGESS, Texas              (Ex Officio)
JOE BARTON, Texas,
  (Ex Officio)

                                  (ii)




                            C O N T E N T S

                               __________
                                                                   Page

Testimony of:
    Clifford, Michael, Director, Systems Planning Applications, 
      Metropolitan Washington Council of Governments, on behalf 
      of the Association of Metropolitan Planning Organizations..    41
    Holmes, Brian, Executive Director, Maryland Highway 
      Contractors Association, on behalf of American Road and 
      Transportation Builders Association........................    59
    Holmstead, Hon. Jeffrey R., Assistant Administrator for Air 
      and Radiation, Environmental Protection Agency.............    14
    Liebe, Annette, Manager, Air Quality, Oregon Department of 
      Environmental Quality, Air Quality Division, on behalf of 
      State and Territorial Air Pollution Program Administrators 
      and Association of Local Air Pollution Control Officials...    45
    Njord, John R., Executive Director, Utah Department of 
      Transportation, on behalf of American Association of State 
      Highway and Transportation Officials.......................    18
    Nottingham, Hon. Charles D., Associate Administrator for 
      Policy, Department of Transportation, Federal Highway 
      Administration.............................................     8
    Replogle, Michael, Transportation Director, Environmental 
      Defense....................................................    57
Aditional material submitted for the record:
    Holmstead, Hon. Jeffrey R., Assistant Administrator for Air 
      and Radiation, Environmental Protection Agency, response 
      for the record.............................................    70
    Nottingham, Hon. Charles D., Associate Administrator for 
      Policy, Department of Transportation, Federal Highway 
      Administration, response for the record....................    69

                                 (iii)

  

 
CLEAN AIR ACT TRANSPORTATION CONFORMITY PROVISIONS CONTAINED IN H.R. 3, 
         ``THE TRANSPORTATION EQUITY ACT: A LEGACY FOR USERS''

                              ----------                              


                        WEDNESDAY, MARCH 2, 2005

                  House of Representatives,
                  Committee on Energy and Commerce,
                    Subcommittee on Energy and Air Quality,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 3:20 p.m., in 
room 2123 of the Rayburn House Office Building, Hon. Ralph M. 
Hall (chairman) presiding.
    Members present: Representatives Hall, Shimkus, Otter, 
Murphy, Burgess, Barton (ex officio), Boucher, Waxman, Green, 
Strickland, Capps, Solis, and Gonzalez.
    Staff present: Mark Menezes, chief counsel for energy and 
environment; Margaret Caravelli, majority counsel; Peter 
Kielty, legislative clerk; and Michael Goo, minority counsel.
    Mr. Hall. Okay. Thank you for your patience. The 
subcommittee will come to order now, and without objection, the 
subcommittee will proceed, pursuant to Committee Rule 4(e), 
which allows members the opportunity to defer opening 
statements for extra questioning time. I think they all 
understand that.
    The Chair recognizes himself for an opening statement. 
Today, the subcommittee holds a hearing on the Clean Air Act 
provisions contained in the Transportation Equity Act, a Legacy 
for Users. These provisions, developed with our friends across 
the aisle, are designed to simplify the conformity process, 
while maintaining air quality benefits. I look forward to 
learning from the panel the transportation conformity process, 
and how the suggested changes to the conformity program will 
further the development of transportation projects consistent 
with our air quality goals.
    I would like to welcome and thank our esteemed witnesses 
for joining us today. All of you have taken your very valuable 
time from your important responsibilities to help educate us 
here today, and several of you have traveled great distances. 
For your sacrifice and your time, we do thank you, and don't be 
dismayed about a lack of attendance here. We are about to have 
a vote, and several members have gone on to the floor, but they 
will be back. But if they do not come back, you have the two 
most important ones here now, in our opinion. But seriously, 
what you say will, of course, be taken down, put into the 
record, and all members will have copies of it. And that is the 
basic reason for it, and then, we relate back to this testimony 
when we write the act, and take our actions.
    Our witnesses today represent folks that are involved and 
are affected by the transportation conformity process itself. 
The Honorable Jeffrey Holmstead of the Environmental Protection 
Agency, and the Honorable Charles Nottingham of the Department 
of Transportation and Federal Highway Administration joins us 
as Federal partners in the conformity program. It is my 
understanding that we also have Mr. Njord, Executive Director 
of Utah Department of Transportation, with transportation 
problems himself today. We welcome you to this panel, and thank 
you for being with us.
    I want to welcome those testifying on behalf of 
organizations representing planners, air quality officials, and 
road builders. These groups work together every day of the year 
to ensure the continued development of our Nation's 
transportation infrastructure, while protecting our air 
quality, and it is a pleasure to have you today.
    A symbol of American freedom is being able to flat drive 
down the open road to any destination of one's choosing. It is 
just that simple. As this country has grown, so too have our 
roads and the number of vehicles on them. Will Rogers once said 
that the way to pay for all of our transportation costs was to 
require everybody's car to be paid for before they put it on 
the highway. That might have worked back in the 1930's, but I 
am not sure that that would work today. Recognizing that growth 
might place some burdens on the environment, particularly the 
air quality, the Clean Air Act established a process through 
which the Environmental Protection Agency and the Department of 
Transportation would work together to continue the expansion of 
our Nation's roads while protecting air quality, and that is 
the whole purpose.
    I guess, however, the real purpose behind transportation 
conformity is to ensure that the area's transportation 
activities are balanced with the area's air quality goals. With 
billions of dollars spent each year on transportation projects, 
conformity serves as a check on this development. This check 
and balance ensures that projects not only serve to keep our 
Nation moving and our economy growing, but also protects our 
Nation's air quality. While recognizing the merits of the 
cooperative process established by the transportation 
conformity program between the metropolitan planning 
organizations and the State air quality officials in pursuit of 
a common goal, we worked with our minority to craft the revised 
transportation conformity language. The language reflects a 
spirited collaborative effort and hours of work. The proposed 
law increases the time for conformity determinations for 
transportation plans and State transportation improvement 
programs to 4 years. It is now 2 to 3, and this would increase 
it to 4, thus easing the burdens placed on transportation 
planners, and allowing for better coordinated demonstrations of 
conformity.
    Also, additions or substitutions of transportation control 
measures used to control and reduce the emissions would no 
longer trigger a new conformity determination or revision of 
the applicable State implementation plan. The proposed 
reduction synchronizes the planning horizons for long term 
transportation plans with that of the State implementation 
plans. A key feature of this adjustment in the planning horizon 
timeframe is that the Metropolitan Planning Organization and 
the air pollution control agency make the determination to 
implement a shorter time horizon. Under the proposed law, 
before the restrictions occur due to a conformity lapse, a 12 
month grace period is permitted.
    So I am gratified to see that this issue is one on which 
this committee can work together, and I again look forward to 
hearing from the conformity experts that are in front of us 
here, and I want to thank you for all of your time, and we 
welcome all of your views with respect to the current 
conformity process, and especially, your opinions on the 
proposed revisions to the conformity program. And at this time, 
I recognize the gentlelady, Ms. Capps, for her opening 
statement.
    [The prepared statement of Hon. Ralph Hall follows:]

Prepared Statement of Hon. Ralph Hall, Chairman, Subcommittee on Energy 
                            and Air Quality

    The Subcommittee will come to order. Without objection, the 
Subcommittee will proceed pursuant to Committee Rule 4(e), which allows 
Members the opportunity to defer opening statements for extra 
questioning time.
    The Chair recognizes himself for an opening statement. Today, the 
Subcommittee holds a hearing on the Clean Air Act provisions contained 
in the Transportation Equity Act: A Legacy for Users. These provisions, 
developed with our friends across the aisle, are designed to simplify 
the conformity process while maintaining air quality benefits. I look 
forward to learning from the panel the ins and outs of the 
transportation conformity process and how the suggested changes to the 
conformity program established by the Clean Air Act will further the 
development of transportation plans, programs and projects consistent 
with air quality goals.
    I would like to welcome and thank our esteemed witnesses for 
joining us today. Our witnesses represent folks involved in or impacted 
by the transportation conformity process. The Honorable Jeffrey 
Holmstead of the Environmental Protection Agency and the Honorable 
Charles Nottingham of the Department of Transportation, Federal Highway 
Administration join us as Federal partners in the conformity program.
    I also want to welcome those testifying on behalf of organizations 
representing transportation planners, air quality officials, and road 
builders. These three groups work together each day to ensure the 
continued development of our nation's transportation infrastructure 
while protecting air quality. It is a pleasure to have you join us here 
today.
    A symbol of American freedom is being able to drive down the open 
road to any destination of one's choosing or for that matter with no 
particular place to go. As this country has grown so to have our roads 
and the number of vehicles on those roads. Recognizing that this type 
of growth may place burdens on the environment, particularly air 
quality, the Clean Air Act established a process through which the 
Environmental Protection Agency and the Department of Transportation 
would work together to continue the expansion of the nation's roads 
while protecting air quality. The purpose behind transportation 
conformity is to ensure that an area's transportation activities are 
balanced with the area's air quality goals. With billions of dollars 
spent each year on transportation projects, conformity serves as a 
check on this development. This check and balance ensures that projects 
not only serve to keep our Nation moving but also keep our Nation's air 
quality in good stead. Taking a cue from the cooperative process 
established by the transportation conformity program bringing together 
metropolitan planning organizations with state air quality officials in 
pursuit of a common goal, we worked with our minority to craft the 
revised transportation conformity language.
    I favor a practical policy of simplifying things so as to make the 
accomplishment of a goal more certain. To this end, in collaboration 
with our Democratic counterparts on the Committee, we drafted the 
provisions contained in H.R. 3 The Transportation Equity Act: A Legacy 
For Users, which we are here to discuss today. The language reflects a 
spirited collaborative effort and hours of work:

 The proposed law increases the time for conformity determinations for 
        transportation plans and State transportation improvement 
        programs to 4 years thus easing the burdens placed on 
        transportation planners, and allowing for better coordinated 
        demonstrations of conformity;
 Additions or substitutions of transportation control measures, used 
        to control and reduce emissions would not trigger a new 
        conformity determination or revision of the applicable State 
        Implementation Plan;
 The proposed reduction in planning horizons synchronizes the planning 
        horizons for long term transportation plans with that of State 
        implementation plans. A key feature of this adjustment in the 
        planning horizon timeframe is that the Metropolitan Planning 
        Organization and the air pollution control agency make the 
        determination to implement a shorter time horizon; and
 Under the proposed law, before the consequences of a conformity lapse 
        occur a 12-month grace period is permitted.
    I am gratified to see that this issue is one in which this 
Committee can work together on. Again I look forward to hearing from 
the ``conformity experts'' and I want to thank you all for your time. 
We welcome all of your views with respect to the current conformity 
process and especially your opinions on the proposed revisions to the 
conformity program.

    Ms. Capps. Thank you, Mr. Chairman, for holding this 
hearing to consider the Clean Air Act's conformity program, and 
your nostalgia about the wide open spaces of Texas, and I grew 
up in Montana, you know. We used to sing don't fence me in, 
right? I don't know. Those days are gone forever, right?
    Mr. Hall. I agree.
    Ms. Capps. All right. I had hoped, and thank you, 
witnesses, for being here today. I had hoped we would assert 
the committee's jurisdiction over the air quality section of 
the transportation bill. Clearly, this subject matter is one 
that falls within the jurisdiction of this committee, and is 
indeed worthy of examination, and I think we owe it to Chairman 
Barton and Dingell, Ranking Member Dingell's efforts to address 
some of the air quality issues contained in last session's 
Senate transportation bill. The House bill, I believe, strikes 
a better balance than S. 1072. While we have made great strides 
reducing air pollution since Congress enacted the Clean Air 
Act, much more remains to be done. When it comes to clean air, 
our priorities should be simple, to cut air pollution that is 
causing tens of thousands of premature deaths, creating heart 
and lung problems in senior citizens, and giving too many of 
our schoolchildren asthma.
    And we must do it expeditiously. American families 
shouldn't have to wait any longer for clean air, clear air. As 
a public health nurse, I am very concerned about the impacts 
that increased traffic and air pollution will have on public 
health. With the House scheduled to reconsider transportation 
legislation as possibly as much as $300 billion in new 
transportation spending, a strong conformity program is needed 
now more than ever. The conformity program helps to ensure the 
Nation's transportation needs are satisfied without sacrificing 
our health and the air we breathe, and I think this can be 
done. Since its implementation, the conformity program has 
proven to be a key tool used by transportation and air planners 
to keep harmful air pollution in check. We should not eliminate 
this crucial program, and we should not allow transportation 
projects to go forward regardless of their impact on air 
quality and on public health.
    California, where I am from now, suffers from some of the 
most serious air quality problems in the Nation. It is no 
surprise that as our population increases, the level of 
congestion on our highways and roads go up. For instance, in 
many parts of our State, the total vehicle-miles traveled each 
day has grown much faster than the rate of population growth. 
The conformity program recognizes that States like California 
will face serious challenges in the area of air quality and 
transportation planning. Without careful forecasting, these 
demands could overwhelm our ability to keep our air clean.
    As we consider changes to the Clean Air Act, we must ensure 
transportation choices contribute rather than undermine 
achieving healthful air quality. Finally, although today's 
hearing is not about this, I hope the committee will seek ways 
to enhance our Nation's air quality also by promoting more 
options to fight congestion through transit, through passenger 
and freight rail, smarter development, better land use 
planning, and other strategies. By providing better resources 
to States and local communities, we will ensure a healthy and 
safe environment for us all. Thank you, and I look forward to 
yielding--to the testimony of our witnesses, and yield back the 
balance of time.
    [Additional statements submitted for the record follow:]

    Prepared Statement of Hon. Charlie Norwood, a Representative in 
                   Congress from the State of Georgia

    Thank you, Mr. Chairman.
    During my tenure in Congress I've been a consistent supporter of 
commonsense environmental policies that will ensure clean air and 
water. However, striking the balance between necessary urban 
developments and maintaining acceptable air quality is something we 
urgently need to find.
    Take a city that is busting out at the seams, like Atlanta. 
Expanding the cities roadways is absolutely vital to the residents 
there. They can not afford to wait six months during a ``conformity 
lapse'' to finish a major artery of the city.
    We must find this balance and that is why I am so pleased the 
distinguished Chairman has decided to hold this hearing today. I am 
looking forward to our witnesses' testimony and guidance. I yield back.
                                 ______
                                 
 Prepared Statement of Hon. C.L. ``Butch'' Otter, a Representative in 
                    Congress from the State of Idaho

    Mr. Chairman, I appreciate the opportunity to sit down today and 
discuss the steps necessary to jump-start critical highway improvement 
projects throughout our country. Our current highway planning process 
has been weighed down by excessive environmental and ESA restrictions. 
The length of time needed to acquire a series of permits, both state 
and federal, before construction can begin needlessly delays the much-
needed improvements to our highway system.
    Our nation's economy depends on an efficient and affordable 
transportation system to move people and products across the country 
and around the world, and these unnecessary delays harm much more than 
a few miles of road. In Idaho alone $58 million in highway projects is 
currently tied up in bureaucracy. That is money that has already been 
appropriated, spent by the government with the intention of maintaining 
and improving roads throughout my state. Instead it is sitting unused, 
waiting for some bureaucrat to sign a paper while Idaho's roads 
continue to deteriorate.
    The highway bill that we will consider on the floor in the coming 
weeks is critical. Investing in our nation's roads and transit systems 
is wise not only for the present but also for the future, and a 
meaningful authorization bill would provide for economic development, 
job creation, and safety improvements on our Federal Highway System. 
This is why I support the provisions we have gathered here to discuss.
    However, I am concerned that they merely scratch the surface, when 
what we need is serious reform to address the flaws in the 
environmental and historical permitting process. No amount of money 
passed by Congress in an authorization or appropriation bill benefits 
the citizens of this country if it gets tied up for years in needless 
bureaucracy. It is crucial that as we address this bill this year we 
take the steps necessary to see that highway money actually turns into 
pavement.
    Thank you.
                                 ______
                                 
  Prepared Statement of Hon. Michael C. Burgess, a Representative in 
                    Congress from the State of Texas

    Mr. Chairman, I would like to thank you for holding this important 
hearing.
    My Congressional District, like those of Chairmen Barton and Hall, 
is located in the Dallas-Fort Worth Metroplex in North Texas. I believe 
that one of the North Texas region's most important and challenging 
issues over the next decade will be how best to clean up the air that 
we breathe.
    There is a significant commitment to clean the air from all the 
stakeholders in the Dallas-Fort Worth area. This includes the EPA, the 
State of Texas, the Cities of Fort Worth and Dallas, and the North 
Texas Clean Air Coalition, which is comprised of the North Texas 
Council of Governments and community leaders. It is important to note 
that North Texas has grown rapidly over the last decade and the degree 
of air pollution has not increased.
    I support efforts to clean up our air--I believe that it is one of 
the most important legacies that we can leave our children. As a former 
member of the Transportation and Infrastructure Committee, however, I 
am concerned about the transportation conformity provision in current 
law. I do not believe that taking away transportation funding from the 
Dallas-Fort Worth region will result in improved air quality.
    In fact, I believe eroding our transportation funding would 
adversely affect air quality because studies have shown that 
automobiles operate more efficiently at around 60 miles per hour than 
at lower speeds such as those cars idling during bumper-to-bumper 
traffic in bottleneck areas, such as on Interstate 35 East in my 
district. A more efficient motor decreases the amount of ozone-creating 
pollutants that are released into the air. This is especially important 
to the Dallas-Fort Worth region because EPA studies have shown that our 
region's air quality is especially affected by mobile-source 
(automobile) pollution.
    I am looking forward to hearing from our witnesses this afternoon 
about how this year's Highway Reauthorization bill will address the 
subject of Transportation Conformity.
    I yield back.
                                 ______
                                 
 Prepared Statement of Hon. Joe Barton, Chairman, Committee on Energy 
                              and Commerce

    Thank you, Mr. Chairman. The issue of transportation conformity 
represents the intersection between development and environmental 
protection. Protection of the nation's air quality while not hindering 
the continued development and expansion of this Nation's transportation 
system is an attainable goal. I applaud any enhancements that look to 
make a process run more efficiently and with more success.
    The provisions we are examining today clearly move the ball forward 
in terms of aiding states and localities by providing them more time to 
plan thus enabling them to keep their transportation programs intact 
and on schedule. This prevents billions of dollars of funding from 
being tied up when the goal is continued transportation development 
while protecting air quality.
    I would like to take a moment to focus on the fact that the Clean 
Air Act transportation conformity provisions contained in the current 
transportation bill, H.R. 3, remain the same as those in H.R. 3550, 
from the prior Congress. In the 108th Congress we worked successfully 
with our friends across the aisle on crafting these provisions. This 
spirit of bi-partisan cooperation on this issue continues into the 
109th Congress. It is my sincere hope that this example reflects a 
renewed commitment to work together on various issues, including energy 
legislation.
    For a subcommittee that has much work in front of it on energy and 
air quality issues, it bodes well that on such a complex issue, as 
transportation conformity, we can work together to come to a positive 
resolution. It is my hope and preference that a positive dialogue, 
continue with our friends on the other side of the aisle, as the 
Committee moves forward in this legislative session.
    I thank the Chairman for having this hearing and look forward to 
the testimony. I yield back the balance of my time.

    Mr. Hall. Thank you. On our first panel, we have the 
Honorable Jeffrey R. Holmstead, Assistant Administrator for Air 
and Radiation, Environmental Protection Agency, in charge, I 
understand, of all activities at EPA's Office of Air and 
Radiation, associate counsel to our President, with a long 
record of environmental service and knowledge, and we thank you 
for bringing that knowledge to us.
    We have Charles D. Nottingham, Associate Administrator for 
Policy, Department of Transportation, Federal Highway 
Administration, who has previously served as counsel to the 
U.S. House of Representatives, so he has been with us from time 
to time.
     And we have, sitting behind Mr. Nottingham, recognize a 
man that has given great service to State, country, and Nation, 
James Shrouds, who is Director of the Federal Highway 
Administration, Office of Natural and Human Environment. Mr. 
Shrouds is scheduled to retire this week from Federal service, 
after a very illustrious 40 year career at the FHWA. During his 
long career, Mr. Shrouds frequently provided technical 
assistance to the Energy and Commerce Committee, and to other 
Congressional committees, is lauded. Mr. Shrouds is esteemed 
throughout the transportation and air quality community as a 
leading expert on air quality conformity for highways. The 
committee wishes to recognize his contribution and express our 
appreciation to an exemplary and dedicated public servant. We 
are honored to have you here.
    Now, and I recognize, on this panel, also, Mr. Njord, who 
is Executive Director of the Utah Department of Transportation, 
responsible for transportation planning for the 2002 Olympic 
Winter Games. He is very versatile. He is a past President of 
the American Association of State Highway and Transportation 
Officials. We thank you three, and if you will be patient with 
us once again, we have some votes going on over there, and I am 
going to go over and try to be back within 15 minutes.
    And without objection, Mr. Njord will join the first panel.
    I am going to vote, and I will be back. Thank you. We used 
to have a sign on our abstractor's door there, back in the 
1930's, when they just couldn't afford to miss a sale, and if 
he would go across the street to get coffee, it would say going 
for coffee, be back in 5 minutes, been gone 3. So that is what 
I am telling you right now. The Chair recognizes Mr. Boucher, 
the gentleman from Virginia, for an opening statement.
    Mr. Boucher. Mr. Chairman, I--in view of the time that we 
have, and the number of witnesses that we have today, will 
simply submit mine for the record, and I think it would be 
appropriate at this time to go on with our testimony.
    [The prepared statement of Hon. Rick Boucher follows:]

 Prepared Statement of Hon. Rick Boucher, a Representative in Congress 
                       from the State of Virginia

    Thank you, Mr. Chairman. I commend you, for the bipartisan work 
which has been performed in drafting these Clean Air Act Amendments and 
for appropriately exercising this Committee's jurisdiction by holding 
today's hearing on the issues contained in the transportation 
legislation which fall within the scope of our authority.
    Today we will hear from a variety of witnesses with expertise in 
both air quality and transportation planning who will address the 
current Clean Air Act conformity requirements as they relate to 
transportation planning and suggest specific changes which could 
improve the process.
    Under the Clean Air Act, regions that have not attained one or more 
of the six National Ambient Air Quality Standards must develop a State 
Implementation Plan outlining how they will bring the area into 
attainment. Section 176 of the Clean Air Act prohibits federal agencies 
from funding projects in these areas unless the projects conform to the 
SIP. In other words, projects must not affect air quality in the region 
in a manner which would delay attainment of the air standards.
    Because new road projects lead to an increase in vehicle miles 
traveled and therefore to increased emissions in an area, the Act 
requires that a non-attainment area's Transportation Improvement Plan 
show that the planned transportation projects in an area will conform 
to the SIP. If the TIP does not show conformity, the projects in 
question are deemed ineligible for federal funding and there is a lapse 
in the area until conformity of the plans is achieved.
    The process associated with proving conformity under Section 176 of 
the Clean Air Act is complicated and involves the coordination of many 
planning activities such as the SIP, TIP and long range transportation 
planning. Many have raised concerns that the differing time lines 
associated with the development of various plans leads to a process 
that is less coordinated than it could be resulting in lapses of 
conformity. Others have argued that the process is working and that any 
changes could be detrimental to a region's air quality. The provisions 
contained in H.R. 3 represent a compromise which would alter the 
current process to allow for less frequent demonstrations of 
conformity, the ability to shorten the planning horizon and provide for 
a 12 month grace period before a lapse would be declared.
    Specifically, H.R. 3 would change the frequency of conformity 
determinations for both the TIP and the long range Regional 
Transportation Plan to once every four years as opposed to the two year 
and three year respective cycles under current law. The proposed 
legislation would also alter the period of time for which conformity 
must be demonstrated. Under current law, conformity must be shown for a 
minimum of 20 years. H.R. 3 would allow an area to reduce this time 
horizon to 10 years with the agreement of the relevant air quality 
agency and the Metropolitan Planning Organization. H.R. 3 would 
additionally allow substitutions of ``Transportation Control Measures'' 
in a SIP without revisiting the SIP approval process or making a new 
conformity determination provided that the new measures achieve an 
equal or greater emissions reduction. Finally, the measure would add a 
new one-year grace period in the event of a conformity lapse, allowing 
a 12 month period in which to demonstrate conformity before federal 
funding is frozen.
    I am interested in hearing from the witnesses a summary of their 
experiences with the transportation conformity requirements, whether 
changes to the process are needed and if so what changes would best 
meet the dual goals of improving both transportation infrastructure and 
air quality.
    Thank you, Mr. Chairman.

    Mr. Hall. As usual, you are very generous. Thank you very 
much. All right. Mr. Nottingham, the Chair recognizes you for, 
hopefully, 5 minutes, but with your kind patience, and your 
demand on your time, we will grant you the time that is 
actually needed. And thank you, sir.
    Mr. Nottingham. Thank you, Chairman Hall, and members of 
the committee. Thank you for this opportunity to discuss 
transportation and air quality. I do ask that my written 
statement be made part of the record.
    Mr. Hall. Without objection.

      STATEMENTS OF HON. CHARLES D. NOTTINGHAM, ASSOCIATE 
ADMINISTRATOR FOR POLICY, DEPARTMENT OF TRANSPORTATION, FEDERAL 
 HIGHWAY ADMINISTRATION; HON. JEFFREY R. HOLMSTEAD, ASSISTANT 
 ADMINISTRATOR FOR AIR AND RADIATION, ENVIRONMENTAL PROTECTION 
AGENCY; AND JOHN R. NJORD, EXECUTIVE DIRECTOR, UTAH DEPARTMENT 
 OF TRANSPORTATION, ON BEHALF OF AMERICAN ASSOCIATION OF STATE 
              HIGHWAY AND TRANSPORTATION OFFICIALS

    Mr. Nottingham. Thank you. With me, as you noted, Mr. 
Chairman, earlier, in the front row behind me, is Jim Shrouds, 
the Director of the Federal Highway Administration's Office of 
Natural and Human Environment. Meeting the dual challenges of 
highway traffic congestion relief and air quality improvement 
is a high priority for the Department of Transportation, as I 
know it is for the members of this committee. Secretary Mineta 
has noted that one of the core principles of the Department's 
reauthorization proposal is to ensure an efficient 
infrastructure, while retaining environmental protections that 
enhance our quality of life.
    Over the last 30 years, we have made remarkable progress in 
reducing air pollution, especially from transportation sources, 
and accomplished this during a period of significant growth in 
population, gross domestic product, and vehicle miles traveled. 
Reauthorization of the surface transportation programs presents 
a unique opportunity to continue progress in air quality 
improvement, and at the same time, make gains in reducing 
congestion. New conformity provisions should provide 
flexibility, streamline the conformity process, but ensure that 
air quality improvement continues.
    A failure to meet a conformity determination deadline is 
referred to as a conformity lapse, and during a lapse, use of 
Federal-aid highway and transit funds may be restricted to 
certain types of projects, such as highway safety projects. The 
administration's conformity proposals would help address 
concerns that lack of synchronization in the transportation and 
air quality planning processes can contribute to lapses in 
conformity. While transportation plans have very long planning 
horizons, and are updated frequently, most air quality plans 
have very short planning horizons, and are updated less 
frequently.
    The administration has proposed to better align the 
transportation and air quality planning horizons, and update 
cycles for transportation conformity, to better integrate the 
planning processes. Although the administration proposes 
limiting the conformity analysis timeframe to a minimum of 10 
years, the provision would also require a regional emissions 
analysis for the last year of the transportation plan, which 
covers at least a 20-year period. However, the emissions 
analysis would be for informational purposes only. We continue 
to recommend including these provisions in the next 
reauthorization act. H.R. 3 reintroduces the same conformity 
provisions contained in H.R. 3550 from the 108th Congress, and 
the administration expressed its position on a number of these 
proposals last year in a letter to the conferees.
    For example, the administration has objected to the 12 
month grace period for demonstrating conformity in the House 
bill. Instead, we support lengthening the transportation and 
air quality update cycles to 5 years, which would better align 
with the time periods required in other Clean Air Act 
regulatory requirements. Current law requires conformity 
updates every 3 years, while H.R. 3 proposes a 4 year cycle 
with a 12 month grace period before lapse. We believe that our 
proposed 5 year cycle will be easier to implement.
    In conclusion, I want to assure you that the FHWA is 
committed to continue the progress we have made in reducing 
motor vehicle emissions, and strongly supports the goals of the 
Clean Air Act's transportation conformity provisions. We are 
proud of the successes that have been achieved through flexible 
funding for innovative transportation projects that improve air 
quality, and through improved cooperation between 
transportation and air quality agencies. However, continued 
progress will require improved coordination of the 
transportation and the air quality planning processes. We 
believe that enactment of the administration's conformity 
proposals will provide the tools for better coordination, and 
will do much to help States achieve their transportation and 
air quality goals.
    Mr. Chairman and members of the committee, this concludes 
my statement. I look forward to working with you for 
reauthorization of the surface transportation programs, and I 
will be pleased to answer any questions you may have.
    [The prepared statement of Charles D. Nottingham follows:]

 Prepared Statement of Charles D. Nottingham, Associate Administrator 
for Policy, Federal Highway Administration, United States Department of 
                             Transportation

    Mr. Chairman and Members of the Subcommittee, thank you for this 
opportunity to discuss transportation conformity.
    Meeting the dual challenges of congestion relief and air quality 
improvement is a high priority for all of us at the Department of 
Transportation, as I know it is for members of this Committee. In the 
Transportation Equity Act for the 21st Century (TEA-21), you gave us 
new tools and authorities to assist us in achieving this goal, and we 
are proud of the progress that has been made. In reauthorization, the 
Department wants to continue to build upon the successes of TEA-21 and 
the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA). 
Five key performance goals, including the protection of the human and 
natural environment, form the basis for the President's FY 2006 budget 
request. Under Secretary Mineta's leadership, these goals will help us 
develop a safer, simpler, and smarter national transportation system 
for a strong America.
    The Department has articulated a set of core principles and values 
that have guided development of the Safe, Accountable, Flexible, and 
Efficient Transportation Equity Act of 2003 (SAFETEA), the President's 
proposal for surface transportation reauthorization, introduced in the 
108th Congress on May 15, 2003, as H.R. 2088. We plan to build on the 
successes and lessons of TEA-21. We seek to enhance the safety and 
security of all Americans, even as we increase their mobility, reduce 
congestion, and grow the economy. We want to ensure an efficient 
infrastructure while retaining environmental protections that enhance 
our quality of life.
    In my testimony today, I will address two main points. First, I 
want to assure you that progress has been made in reducing 
transportation-related emissions of air pollutants, and that the 
Department of Transportation is committed to doing its part to ensure 
progress continues. Second, I want to restate the commitment of the 
Department to work with our transportation planning and air quality 
planning partners for effective coordination of the transportation and 
air quality planning processes.

              CONTINUED FOCUS ON AIR QUALITY IMPROVEMENTS

    As a Nation, we have made remarkable improvements in reducing air 
pollution, especially pollution that comes from transportation sources. 
Where transportation is a significant source of pollutants, the 
Environmental Protection Agency (EPA) reports that ozone (formed by the 
reaction of volatile organic compounds (VOC) and oxides of nitrogen 
(NOx)), carbon monoxide (CO), and particulate matter (PM), have all 
decreased substantially since 1970. A majority of the areas designated 
as nonattainment since 1990 now meet national air quality standards. 
Air quality monitoring data through 2003 shows that all of the original 
carbon monoxide nonattainment areas, and 66 out of 87 previously-
designated coarse particulate matter (PM-10) nonattainment areas no 
longer show air pollution levels that exceed the national ambient air 
quality standards. In addition, considering the recently implemented 8-
hour ozone and PM-2.5 standards, ozone levels nationwide are down 9% 
from 1990, and PM-2.5 concentrations have decreased 10% since 1999. 
And, while the Clean Air Act (CAA) has led to reduced pollutant 
emissions from all air pollution sources, the greatest success can be 
found in the reduction of motor vehicle emissions: CO emissions have 
been reduced by 62 percent since 1970, PM-10 emissions reduced by 50 
percent, NOx emissions by 41 percent, and VOC emissions by 73 percent 
from motor vehicles (see Attachment). In 1970, motor vehicles 
contributed 69 percent of total emissions of carbon monoxide, NOx, 
VOCs, and PM-10. However, by 2002, the motor vehicle portion of 
emissions of these pollutants dropped to 43 percent. Most of these 
emissions reductions have resulted from stricter emissions standards, 
improved engine technology, and cleaner fuels. (The data cited in this 
paragraph can be found at the following websites: http://www.epa.gov/
ttn/chief/trends/ and http://www.
epa.gov/ttn/chief/trends/trends02/trendsreportallpollutants010505.xls.)
    It is especially important to note that these reductions in 
emissions were accomplished during a period of 41 percent increase in 
population, 167 percent growth in gross domestic product (GDP), and 157 
percent increase in vehicle miles traveled. The automotive, fuels, 
highway, and transit communities have managed to achieve this success 
in improving air quality while at the same time working to address 
increasing demands to improve mobility.
    The downward trend achieved in emissions is expected to continue 
into the future. Engines and fuels are to become even cleaner under 
recent EPA-issued regulations for emissions standards and cleaner fuel 
requirements. Between 2004 and 2007, more protective tailpipe emissions 
standards will be phased in for all passenger vehicles, including SUVs, 
minivans, vans, and pick-up trucks. This regulation marks the first 
time that larger SUVs and other light-duty trucks will be subject to 
the same national pollution standards as cars. In addition, the EPA 
tightened standards for sulfur in gasoline, which will ensure the 
effectiveness of low-emission control technologies in vehicles and 
reduce harmful air pollution. When the new tailpipe and sulfur 
standards are implemented, Americans will benefit from the clean-air 
equivalent of removing 164 million cars from the road. These new 
standards require all passenger vehicles sold after the phase-in period 
to be 77 to 95 percent cleaner than those on the road today, and will 
reduce the sulfur content of gasoline by up to 90 percent.
    We expect that motor vehicle emissions will be reduced as new 
heavy-duty vehicles that meet the 2004 emissions standards for heavy-
duty engines enter the fleet. Beginning with the 2007 model, heavy-duty 
engines for trucks and buses must meet even tighter emissions 
standards, and the level of sulfur in diesel fuel must be reduced by 97 
percent from existing standards by mid-2006. As a result, after a 
phase-in period, each new truck and bus will be more than 90 percent 
cleaner than the models made before the 2004 standards were in effect. 
In addition to tighter standards, the Federal Transit Administration 
(FTA) has been working with industry to develop and demonstrate low- 
and zero-emissions advanced propulsion technologies for transit buses, 
including hybrid-electric, battery electric, and fuel cell-powered 
buses. Under FTA/DOT leadership, a national program is underway to 
accelerate the development and commercial viability of these advanced 
technologies.
    However, the Nation as a whole, and the transportation community in 
particular, face additional challenges as new air quality standards are 
implemented. The new eight-hour ozone and fine particulate (PM-2.5) 
standards are more stringent, and many areas across the eastern U.S. 
and in California have been designated nonattainment under these 
standards. Some of these areas, including small urban and rural areas, 
were designated nonattainment for the first time. Other existing 
nonattainment areas become larger and involve more jurisdictions under 
the new standards. The Department and EPA are working with these areas 
to increase their capacity to deal with new nonattainment designations.
the transportation conformity process: coordinating transportation and 

                          AIR QUALITY PLANNING

    Conformity refers to a requirement of the CAA that is designed to 
ensure that Federally-funded or Federally-approved highway and transit 
projects conform to the air quality goals and priorities established in 
a State's implementation plan (SIP). For programs administered by the 
Federal Highway Administration and the Federal Transit Administration, 
we determine whether highway and transit projects conform to a State's 
SIP by comparing the total expected air quality emissions from the 
whole transportation system within the nonattainment or maintenance 
area, including the expected emissions that would result from projects 
contained in the transportation plan and transportation improvement 
program (TIP), with the emissions budget for motor vehicles in the SIP.
    A failure or inability to make a conformity determination by the 
required deadline is referred to as a ``conformity lapse.'' During a 
conformity lapse, the use of Federal-aid highway and transit funds may 
be restricted. Currently, most areas of the country are in conformity. 
But, as of March 1, 2005, six areas are in a conformity lapse.
    Fulfilling the transportation conformity requirements has created 
stronger institutional links between two sets of agencies--
transportation and air quality--that operated quite independently of 
each other prior to enactment of the Clean Air Act Amendments of 1990 
(CAAA). This interagency consultation has played a crucial role in the 
development of more realistic and achievable transportation and air 
quality plans. In addition, the transportation conformity provisions 
have been instrumental in fostering improvements to the travel demand 
and emissions modeling processes, because of the specificity of data 
necessary to meet conformity requirements.
    We now have more than a decade of experience in implementing the 
transportation conformity provisions of the CAAA and, despite 
successes, our stakeholders indicate that there remain opportunities to 
improve the transportation conformity process. Transportation 
conformity was intended to form strong linkages between the 
transportation and air quality planning processes. However, there is a 
concern among transportation agencies--and even some air quality 
agencies--that transportation plans and SIPs are not synchronized with 
one another due to different planning horizons and update frequencies. 
While transportation plans have very long planning horizons and have to 
be updated frequently, most air quality plans have comparatively 
shorter planning horizons and are updated less frequently.
    TEA-21 and the CAA require that transportation plans must cover at 
least 20 years and be found conforming for that entire time period. 
However, air quality plans have much shorter planning horizons, often 
only 5-10 years, resulting in a ``mismatch'' in which transportation 
plans must consider emissions controls in the absence of comprehensive 
air quality planning. Without comprehensive air quality planning, there 
is no analysis of the most cost-effective emissions controls across all 
sources beyond the end of the SIP timeframe. If a metropolitan planning 
organization (MPO) has a conformity problem in the time frame beyond 
that covered by the SIP, it has limited options for achieving 
substantive emissions reductions with programs over which the 
transportation agencies have control. Traditional transportation 
control measures (TCMs) have little impact on regional emissions 
levels, and such strategies will provide even fewer reductions in the 
future, as technology continues to reduce total mobile source 
emissions. MPOs and State air agencies must work together during the 
SIP development and transportation conformity processes to ensure that 
both air quality and transportation needs are addressed. Although MPOs 
bear the responsibility of assuring that plans conform to air quality 
budgets, they do not have the authority under current law to establish 
more effective measures, like vehicle inspection and maintenance 
programs or reformulated fuels. That process of identifying future 
control strategies is the intended purpose of the SIP.
    This ``mismatch'' can be further aggravated by differences in the 
frequency with which transportation plans and air quality plans are 
updated. Conformity determinations for transportation plans must be 
made at least every three years, must be based on the latest 
demographic and travel information, and must use the latest emissions 
estimation model. However, air quality plans are not updated on a 
regular cycle, and may reflect out-of-date assumptions or may have been 
developed using an outdated emissions estimation model. When a 
conformity analysis is performed in such a situation, it is impossible 
to determine whether the emissions associated with the transportation 
plan are truly consistent with the emissions budget in the air quality 
plan. This may be because the transportation plan emissions were 
estimated using one set of assumptions and model, while the emissions 
budget was developed under another. Our stakeholders have reported that 
such situations have occurred and are likely to happen again with 
recent and expected future releases of a new or updated emissions 
estimation models.
    EPA, in coordination with the Department of Transportation, allows 
a grace period before States have to use a new emission model for 
conformity. EPA also requires that SIPs that are started after the 
official release use the new model. While the Clean Air Act does not 
require SIP updates in all cases, EPA guidance encourages States to 
evaluate the effects of a new model early to plan for any needed SIP 
updates to accommodate change.
    Our stakeholders indicate that conformity lapses have occurred 
because areas could not complete the complex, comprehensive 
transportation planning and conformity processes within the required 
time frames, even though they met their emissions budgets. Data 
collection, model development, public outreach, and consensus building 
can all take a considerable amount of time and resources. MPOs also 
face other daily challenges of ever-increasing congestion, 
transportation needs due to economic growth, protection of water 
quality and other environmental resources, efficient freight 
management, safety, and security.
    Many of our stakeholders have suggested bringing the planning 
horizons and frequency of updates of both the transportation plans and 
air quality plans much closer together. Some have suggested a shorter 
planning horizon, and less frequent updates, while others have 
suggested a longer air quality planning horizon. We note that some 
areas have opted to voluntarily extend their air quality planning 
horizons.
    In any case, some stakeholders have suggested it is in the best 
interests of an effective, integrated process that the air quality 
plans and the transportation plans are both using the latest, and most 
consistent, set of planning assumptions, and that the air quality plans 
include the necessary control measures to ensure timely attainment of 
the standards. Stakeholders have stated that this would also help 
anticipate air quality problems and correct them in a more proactive 
and coordinated transportation and air quality planning process.

            TRANSPORTATION CONFORMITY PROVISIONS IN SAFETEA

    Over the years, the Department has worked closely with EPA and 
State and local stakeholders to improve the transportation conformity 
process, and we are committed to continuing to improve coordination of 
the transportation and air quality planning processes. We worked with 
EPA and transportation stakeholders to identify and develop the 
conformity proposals in SAFETEA, and we believe that enactment of the 
following provisions would contribute significantly to process 
improvements.
    1. SAFETEA would combine metropolitan long-range transportation 
plans and transportation improvement programs into a single 
transportation plan. A primary objective is to ensure better 
consistency between what has been known as the metropolitan long-range 
transportation plan and the identification/prioritization of specific 
transportation projects/project phases into what has been known as the 
TIP. Since current law requires the TIP to be consistent with the long-
range transportation plan, the rationale behind this proposed change is 
to reduce the number of actions or products generated by the 
metropolitan transportation planning process such as those related to 
plan/program development or revision, public involvement, fiscal 
constraint. This will require only one conformity determination for the 
plan, instead of separate conformity determinations for transportation 
plans and TIPs.
    2. SAFETEA would limit transportation conformity to the first ten 
years of the transportation plan, the latest year in which the SIP 
contains a motor vehicle emissions budget, or the completion date of a 
regionally significant project, if the project requires approval before 
the subsequent conformity determination, whichever is longer. In 
practice, this means that for areas with SIP planning horizons of less 
than 10 years (which is the case for most areas), transportation 
conformity determinations would cover a minimum of 10 years. In cases 
where air quality agencies develop a longer-term SIP with emissions 
budgets that extend beyond 10 years, the conformity determination would 
cover the corresponding, longer time period. This provision would be 
added to better integrate the transportation planning and air quality 
planning processes, and to ensure that the most cost-effective 
mitigation strategies are incorporated into these processes. This 
proposal would more closely align the transportation and air quality 
planning horizons for purposes of transportation conformity. Currently, 
transportation conformity must be determined for the entire 20-year 
planning horizon of metropolitan long-range transportation plans. On 
the other hand, air quality SIPs usually cover a much shorter time 
frame (10 years or less). Nevertheless, long-range transportation plans 
must conform to these SIPs for the full 20 years of the plan. This 
mismatch in timeframes does not provide for an integrated planning 
process in the out-years to select the most cost-effective strategies 
for controlling emissions, nor does it allow for the consideration of 
emissions reduction strategies across different sources of emissions.
    3. SAFETEA would require a regional emissions analysis for the last 
year of the transportation plan, for informational purposes only. 
SAFETEA includes a proposal for regional emissions analysis to be 
performed for the last year of the metropolitan Transportation Plan, 
assuming the conformity analysis is not performed for the entirety of 
the Transportation Plan. These analyses are intended to be 
informational only and serve as input into future updates of the air 
quality SIP or the Transportation Plan. If the analysis indicates that 
there are potential long-term air quality issues, such issues could be 
more effectively addressed through an integrated transportation and air 
quality planning process and future updates of the air quality SIP and/
or metropolitan Transportation Plan.
    4. SAFETEA would revise the required frequency of transportation 
plan updates and conformity determinations from three to five years, 
except when the MPO chooses to update the plan more frequently or 
changes to the SIP trigger a new conformity determination as provided 
for in the conformity rule. The Administration's proposed legislation 
would encourage (and provide sufficient time to develop) comprehensive 
Transportation Plans that consider a diverse array of issues, while 
giving the MPOs and State DOTs discretion in updating Transportation 
Plans more frequently than the proposed five-year timeframe, if 
dictated by changing regional or State issues. Any major change to the 
transportation plan within the 5-year update cycle, however, would 
result in a new conformity determination. In addition, SAFETEA would 
retain the 18-month conformity ``triggers'' of the current 
transportation conformity rule associated with SIP actions, i.e., a 
conformity determination on the transportation plan is required if a 
related SIP action occurs. Together these factors would ensure that 
transportation plans remain in conformity with air quality plans, 
thereby not compromising air quality goals.

                               CONCLUSION

    In conclusion, the Department of Transportation is committed to 
continuing the progress made over the last thirty-five years in 
reducing motor vehicle emissions and strongly supports the goals of the 
Clean Air Act's transportation conformity provisions. Improving 
transportation safety and mobility, while protecting the environment 
and enhancing the quality of life for all of our communities, are 
compatible goals. The Department is proud of the successes that have 
been achieved through flexible funding for innovative transportation 
projects that improve air quality and through improved cooperation 
between transportation and air quality agencies. However, we also 
recognize that additional improvement in the coordination of 
transportation and air quality planning processes can be achieved.
    We believe that the Administration's SAFETEA conformity proposals 
would lead to better integrating transportation and environmental 
decision-making and would effectively advance environmental stewardship 
while improving our efficiency in meeting our nation's mobility needs.
    The American public demands and deserves both mobility and clean 
air, and we must remain focused on providing the highest level of 
service and environmental protection that we can provide.
    Mr. Chairman and members of the Subcommittee, this concludes my 
statement. I again thank you for the opportunity to testify today and I 
look forward to working with you for reauthorization of the surface 
transportation programs.
    I will be pleased to answer any questions you may have.

    Mr. Hall. And for which we thank you, and Mr. Holmstead, 
recognize you, sir.
    Mr. Holmstead. Thank you, Mr. Chairman. It is a pleasure to 
be here this afternoon. With your permission, I would like to 
submit my written statement for the record.
    Mr. Hall. Without objection.

             STATEMENT OF HON. JEFFREY R. HOLMSTEAD

    Mr. Holmstead. And make a very brief oral statement, in 
light of the time that we have.
    Over the last 30 years, we have made amazing progress in 
reducing pollution from cars and trucks and buses. Within the 
next year or 2, any car or truck or--any car or SUV or truck 
that we buy is going to be about 99 percent cleaner than it was 
in 1970, and within a few years after that, all diesel engines 
will be about 95 percent cleaner than they are today. It really 
is remarkable what technology has done to improve our air 
quality, and especially, the transportation-related air 
quality.
    Notwithstanding these improvements, there is still more 
that we need to do in terms of coordinating transportation 
plans and air quality planning, and that is really what 
conformity is all about. The administration has already taken a 
number of steps administratively to try to make this program 
work better. We think it is important to continue to have 
better relationships between the air quality planners and the 
transportation planners. We think we have come a long way over 
the last 13 years, but we recognize that there is more that we 
can do. Mr. Nottingham mentioned several of the things that the 
administration has been working, and put in its own bill, and 
we look forward to working with the committee to make sure that 
we can continue to achieve the dual goals of having an 
effective transportation infrastructure, while at the same 
time, protecting our air quality.
    Thank you, and I, too, would be happy to answer any 
questions you may have.
    [The prepared statement of Jeffrey R. Holmstead follows:]

   Prepared Statement of Jeffrey Holmstead, Assistant Administrator, 
   Office of Air and Radiation, U.S. Environmental Protection Agency

    Thank you, Mr. Chairman and Members of the Subcommittee, for the 
opportunity to appear here today to discuss the transportation 
conformity program in the context of reauthorization of the nation's 
surface transportation law, currently known as the Transportation 
Equity Act for the 21st Century (or TEA-21).
    There has been considerable progress in achieving better air 
quality for Americans over the past 30 years. Building upon these air 
quality successes remains an important national priority. EPA sees the 
reauthorization of TEA-21 as an opportunity to employ available tools 
to improve air quality in ways that could help cities across the 
country make progress toward attaining the national air quality 
standards, including the recently implemented new ozone and particulate 
matter standards.
    According to EPA's latest air quality trends report, air quality 
monitoring data show that from 1970-2003, concentrations of all six 
criteria pollutants have declined, including the four criteria 
pollutants that are most affected by the transportation sector: carbon 
monoxide, nitrogen dioxide, ozone (smog), and particulate matter soot.
    These air quality data are good news, and are attributable to the 
transportation and air quality programs currently in place. However, 
there is still more work that needs to be done. Currently, there are 
approximately 160 million Americans living in 474 counties that are 
designated nonattainment for the new 8-hour ozone air quality standard, 
and 95 million people living in 225 counties that are designated 
nonattainment for the new standard for fine particulate matter (or 
PM2.5). The criteria pollutant emissions have a significant 
impact on the health of Americans. Particulate matter is linked to 
aggravation of pre-existing respiratory ailments, reductions in lung 
capacity, and a significant number of premature deaths. Ozone can 
impair lung function, cause chest pain and coughing, and worsen 
respiratory diseases and asthma. Carbon monoxide can aggravate angina 
(heart pain).
    Even though overall emissions have been reduced, on-road mobile 
sources continue to be a significant contributor to pollution problems. 
EPA estimates that in 2003, motor vehicles accounted for 55 percent of 
total U.S. carbon monoxide emissions, 28 percent of total volatile 
organic compounds (VOCs; an ozone precursor), 36 percent of total 
nitrogen oxides (NOX; an ozone precursor), and 5 percent of 
the traditionally inventoried direct emissions of particulate matter 
nationwide.
    As these data suggest, the integration of transportation and air 
quality planning is imperative to achieving clean air. One of the most 
valuable tools that currently exists to ensure the integration of these 
two distinct and different planning processes is transportation 
conformity. Transportation conformity was established by Congress in 
the Clean Air Act Amendments of 1977 and strengthened in the 1990 
amendments. The purpose of transportation conformity is to ensure that 
transportation activities within a region are compatible with the 
region's clean air goals. Transportation conformity applies only in 
areas that have air quality worse than the national standards 
(nonattainment areas) or that have violated the standards in the past 
(maintenance areas). In the simplest terms, conformity serves as an 
``accounting check'' to ensure that emissions from a nonattainment or 
maintenance area's future transportation network fit within the 
emissions budget included in the area's air pollution reduction plan.
    A benefit of conformity accounting is that it requires state and 
local governments, and the public, to consider the air quality impacts 
of the planned transportation system as a whole, before transportation 
plans are adopted and projects are built. Billions of dollars every 
year are spent on developing and maintaining our transportation system. 
Conformity helps ensure that these dollars are not spent in a manner 
that would worsen air quality.
    Prior to the 1990 Clean Air Act, transportation planners and air 
quality planners often did not consult with one another or even use 
consistent information regarding future estimates of growth. To address 
these problems, the 1990 Amendments explicitly linked the air quality 
planning and transportation planning processes in a manner that had not 
previously existed. Transportation conformity has compelled the two 
types of planning agencies to work together through an interagency 
consultation process to find creative and workable solutions to air 
quality issues. This increased consultation is an important benefit. A 
1999 Harvard study on the program, which was jointly funded by DOT and 
EPA, confirmed that the program has improved consultation between 
transportation and air quality planners, and made that consultation 
more effective.
    While conformity has proven to have certain benefits, some 
nonattainment and maintenance areas, particularly those that have been 
recently designated nonattainment for the new ozone and 
PM2.5 standards, may face challenges in meeting the 
program's requirements. The best way EPA can help areas meet conformity 
is through Federal programs to improve air quality. We are currently 
implementing three Federal regulatory programs that will achieve 
dramatic emission reductions from cars, trucks and nonroad equipment 
across the country.
    First, in 2004, car manufacturers began producing cars and light 
trucks that meet EPA's new, stringent tailpipe standards. These 
requirements are enabled by EPA's Tier 2 program with low sulfur 
gasoline standards that ensure the effectiveness of emission control 
technologies in all passenger vehicles. Together, these programs will 
make passenger vehicles 77 to 95% cleaner. In addition, Tier 2 requires 
for the first time that sport utility vehicles, pick-up trucks, and 
minivans meet the same standards as cars. Second, EPA's landmark Clean 
Air Highway Diesel Program will make heavy duty trucks and buses up to 
95% cleaner than today's models. This rule also requires the production 
of low sulfur diesel fuel to enable the use of advanced after treatment 
technologies. Finally, EPA's Clean Air Nonroad Diesel Program will 
achieve reductions of a similar magnitude from non-road diesel engines 
used in construction, agricultural, and industrial operations. The 
program uses the same approach we relied on in the Highway Diesel 
program--tough exhaust standards paired with cleaner fuel requirements. 
When fully implemented, EPA estimates that these three programs will 
yield over $175 billion annual health benefits, preventing almost 
25,000 premature deaths, hundreds of thousands of respiratory 
illnesses, and millions of lost work days.
    Communities across the nation are counting on these federal 
programs to help them demonstrate conformity, and more importantly, 
attain the new ozone and PM2.5 standards. Successful 
implementation of these programs is one of the Administration's 
priorities. EPA is working closely with the automobile, trucking, 
engine manufacturers, and fuels industry to ensure the smooth and 
timely implementation of each rulemaking.
    In addition to these regulatory programs, EPA has also developed a 
number of voluntary programs that are aimed at improving air quality. 
The Clean Diesel Initiative consists of efforts to reduce emissions 
from new diesel engines as well as existing diesel engines by 2014. EPA 
will work with owners of trucks, buses, and nonroad equipment to 
encourage the installation of innovative and cost-effective emission 
control technology on existing diesel engines. These technologies can 
result in reductions of particulate matter, NOX and VOCs. 
Another non-regulatory approach to achieving emission reductions by 
providing travel choices is Best Workplaces for Commuters 
SM. Built around the tax-free commuter benefits in TEA-21 
and modeled after the highly successful Energy Star partnership 
programs, Best Workplaces for Commuters SM is an EPA-DOT 
voluntary partnership program that recognizes employers offering 
outstanding commuter benefit packages that help reduce traffic and 
traffic-related emissions. To date, over 1,100 employers from 32 states 
and Washington, DC, are on the national list of Best Workplaces for 
Commuters SM covering over 2 million employees.
    Finally, EPA has launched another innovative clean air program, the 
SmartWay SM Transport Partnership--a voluntary collaboration 
between U.S. EPA and the freight industry designed to increase energy 
efficiency while reducing greenhouse gases and air pollution. To meet 
these goals, the Partners adopt improved practices and energy saving 
technologies such as idling reduction equipment/policies, automatic 
tire-inflation systems, and speed management practices. More than 120 
companies across the country have joined as SmartWay Transport Partners 
since the Partnership became operational in February 2004.
    As states and localities move forward in implementing the new ozone 
and particulate matter standards, EPA has taken several steps to 
improve the overall implementation of the transportation conformity 
program through regulatory and proposed legislative actions. Under the 
Clean Air Act, EPA is responsible for writing the conformity 
regulations with concurrence by the Department of Transportation (DOT), 
as DOT is our federal partner in the implementation of the program.
    On July 1, 2004, EPA published amendments to the conformity rules 
that provide clear guidance and procedures for implementing conformity 
for both the new ozone and particulate matter air quality standards. 
For example, the final rule describes when conformity first applies in 
new nonattainment areas. The Clean Air Act and transportation 
conformity rule allow a one-year grace period before conformity applies 
for the new standards, and this grace period begins upon the effective 
date of EPA's nonattainment designation for each new standard. In 
addition, the rule describes the general requirements for ensuring 
conformity under the new standards, such as the conformity test(s) that 
would apply before a state develops its air quality implementation plan 
(or SIP).
    EPA believes the timing of this final rule was critical for 
ensuring that new nonattainment areas receive the full benefit of the 
one-year conformity grace period. New 8-hour ozone nonattainment areas 
will be required to demonstrate conformity by June 15, 2005, while 
areas designated nonattainment for the PM2.5 standard will 
be subject to the conformity requirements on April 5, 2006. By 
finalizing the July 1, 2004 conformity rule, EPA provided new 
nonattainment areas sufficient time to prepare their conformity 
determinations and meet the one-year conformity requirement. EPA is 
working to ensure that additional PM2.5 guidance will be 
available by April 5, 2005 or shortly thereafter.
    The July 1, 2004 amendments also incorporate into the rule EPA and 
DOT's existing guidance implementing the March 2, 1999 conformity court 
decision, as well as other rule revisions and clarifications that we 
believe will ease implementation of the program in all nonattainment 
and maintenance areas. Of particular interest is a revision that 
streamlines the current requirements for re-determining conformity 
after certain SIP actions have occurred (e.g., after EPA's approval of 
a SIP). This revision ensures that a new conformity determination is 
required only for SIPs that have never been used in the conformity 
process. Another significant revision implements the Clean Air Act in a 
more reasonable and practicable manner by allowing transportation 
planners to base conformity analyses on planning data and information 
that is available at the beginning of the conformity process.
    We are currently working quickly to finalize two smaller rule 
changes that will affect areas recently designated nonattainment for 
the new PM2.5 standard. The first of these rulemakings will 
add the precursors for PM2.5 (NOX, VOCs, sulfur 
oxides and ammonia) to the transportation conformity regulations and 
specify when each of these precursors must be considered in conformity 
determinations in PM2.5 nonattainment and maintenance areas. 
We plan to issue this final rule within the next few months. The second 
rulemaking will address the procedures for determining localized 
concentrations (or ``hot-spots'') of particulate matter that could be 
caused by transportation projects in certain areas subject to 
transportation conformity. EPA plans to finalize this rule later this 
summer.
    In addition to these regulatory actions, the Administration's 
SAFETEA proposal for the reauthorization of TEA-21 also improves the 
transportation conformity program and continues to protect public 
health. We believe that such improvements will streamline the 
conformity program to the benefit of state and local governments. I 
would like to mention two main parts of the Administration's bill that 
support the transportation conformity process and how they are 
addressed in the House bill H.R. 3.
    First, the Administration supports modifying the timeframe of 
conformity analyses to provide consistency between the horizons 
evaluated for transportation conformity and air quality planning 
purposes. Under the current conformity rule, transportation planners 
are required to evaluate transportation-related emissions for at least 
20 years into the future, even if the SIP covers a much shorter time 
period (e.g., 10 years into the future). Under the Administration's 
SAFETEA proposal, the time frame covered by the conformity analysis 
would be the longest of the following: 1) 10 years; 2) the latest SIP 
motor vehicle emissions budget year; or 3) a regionally significant 
transportation project's completion date. The Administration also 
supports the requirement for an informational analysis of the last year 
of an area's transportation plan. Such an analysis can provide state 
and local governments and the public with a critical ``early warning'' 
of future long-term air quality problems.
    Second, the Administration objects to the 12-month ``grace period'' 
provided by section 1824 of the House bill, and instead supports 
lengthening the transportation and air quality update cycles to 5 years 
as the Administration proposed. EPA currently requires such 
determinations every 3 years. The Administration believes requiring 
conformity updates every 5 years is sufficient for meeting Clean Air 
Act goals to protect public health.
    The Administration opposes inclusion of the provision in section 
1824 of the House bill that would change the point at which a 
conformity lapse begins. Under current law, a conformity lapse begins 
on the date that an area misses a deadline for determining conformity. 
However, the House bill would give areas that miss a required deadline 
for demonstrating conformity 12 additional months to correct the 
problems that caused them to miss the original deadline, such as 
changing the transportation plan or state air quality plan.
    EPA opposes this provision because it may make it more difficult 
for areas to attain the health-based air quality standard by their 
attainment deadlines. For example, under this provision, if an area is 
unable to demonstrate conformity by a given deadline, it may continue 
to build transportation projects that could potentially be inconsistent 
with clean air goals for one additional year before a lapse is imposed. 
This provision could also delay the use of SIP air quality emissions 
budgets in conformity determinations and deprive areas the opportunity 
to verify whether their on-road emissions were consistent with the 
levels required by the state. The current conformity rule allows areas 
18 months to determine conformity when a new SIP becomes available. The 
House bill already extends this period of time to 24 months. An 
additional 12 months would further delay the incorporation of new air 
quality information into the conformity process and undermine the 
current incentive for areas to resolve conformity issues and make 
determinations expeditiously.
    In conclusion, EPA is committed to partnering with DOT to continue 
our progress in meeting both transportation and air quality goals. 
Based on our collective experience in implementing the transportation 
conformity program, we believe the Administration's proposal will build 
on the success of TEA-21 and will further assist areas in their efforts 
to achieve clean air now and in the future. Thank you again for this 
opportunity to testify today and discuss our programs with you. I would 
be pleased to respond to any questions that you may have.

    Mr. Hall. Thank you, Mr. Holmstead. The Chair recognizes 
Mr. Njord.

                   STATEMENT OF JOHN R. NJORD

    Mr. Njord. Thank you very much, Mr. Chairman, and I 
appreciate you accommodating my schedule, and moving me up on 
the agenda. Thank you. My name is John Njord. I am the 
Executive Director of the Utah Department of Transportation, 
and the past President of the American Association of State 
Highway and Transportation Officials. And on behalf of all 50 
State Departments of Transportation, as well as the District of 
Columbia and Puerto Rico, we thank you and applaud you for 
having this hearing on air quality conformity, which is a very 
important issue for transportation agencies across the country.
    When the Clean Air Act was enacted back in 1990, conformity 
provisions were created to ensure that transportation plans, 
programs, and projects were in conformance with States' efforts 
to attain Federal air quality standards. After the 15 years of 
experience that we have had with air quality conformity, we 
believe that it is time for some refinements to the conformity 
process that can and should be made in order to accommodate the 
new world we are in today.
    Now, why would we be interested in that? We need to 
synchronize the conformity of the air quality planning process. 
We need to make some commonsense adjustments to the frequency 
of conformity updates, and also to better coordinate 
transportation and air quality strategies to meet the new air 
quality standards.
    Since 1999, there have been 74 nonattainment or maintenance 
areas that have experienced a conformity lapse, putting 
billions of dollars of transportation projects on hold. In over 
half of those instances where there has been a conformity lapse 
since 1999, the reason for the lapse was simply confusing 
deadlines between the various programs. Transportation 
conformity has become, year in and year out, a paperwork 
process that hasn't necessarily improved air quality, but has 
taken valuable staff resources which could have been better 
used for transportation planning activities.
    Let me give you an example from our good colleague's State 
of North Carolina. Three years ago, in 2003, they were facing a 
lapse in conformity. In order to beat that deadline, they had 
to redo their transportation plan. They were working with the 
community on a number of various transportation strategies in 
North Carolina, and simply ran out of time. Because of that 
running out of time, they fell into a lapsed situation, and for 
4 months, they were under a situation where they could not move 
forward with over $100 million worth of projects in North 
Carolina. They were needlessly delayed just because of 
differing dates. Mr. Chairman, we thank you, and Mr. Chairman 
Don Young, for acknowledging the need to make improvements to 
the conformity process, and we believe that conformity-related 
provisions contained within H.R. 3, the Transportation Equity 
Act, a Legacy for Users, TEA LU, provides a good start toward 
fixing that which has been wrong with the conformity process in 
the past.
    In our detailed testimony, we have suggested some 
additional, minor adjustments that I would like to summarize 
very briefly here today. First of all, we support the 
provisions to align conformity time horizons with the State air 
quality implementation plans and emission budgets, to limit 
conformity to the end of the maintenance period. However, we 
recommend that you not give air quality agencies concurrence, 
which essentially equates to a veto power over the components 
of the process. We support provisions to increase and 
coordinate the update cycles for metropolitan transportation 
plans, together with the statewide transportation 
implementation programs, but recommend that the cycle be at 
least every 5 years, instead of the 4 years that are contained 
currently within H.R. 3.
    We support the provisions in H.R. 3 giving MPOs and States 
12 months to correct differences, deficiencies prior to 
invoking a conformity lapse. This puts conformity lapse 
situation closer to on par with the other air quality 
sanctions, which don't kick in for 18 months, when you have a 
lapse situation. We support the provisions in H.R. 3 that 
provide for the substitution of STELL transportation control 
measures, and we urge you to take a second look at the process 
to coordinate between the 8 hour ozone standards and the 1 hour 
emission budgets, with the interim test with the expanded 
nonattainment areas.
    Now, the goal of air quality conformity is to make air 
cleaner, and I think that everybody in the room is interested, 
and everybody across the country is interested in making air 
quality better. We are all interested in that. Conformity is 
not a transportation control measure. It is a tool that is used 
to ensure that transportation plans are compatible with air 
quality plans, and we would hope that we would continue to be 
able to work on that basis, and Mr. Chairman, I appreciate this 
opportunity, once again, to speak to you and to this committee, 
and would be happy to answer any questions you might have.
    [The prepared statement of John R. Njord follows:]

    Prepared Statement of John Njord, Director, Utah Department of 
                             Transportation

    Mr. Chairman and Members of the Committee, my name is John Njord. I 
am Director of the Utah Department of Transportation. I am here today 
to testify on behalf of the American Association of State Highway and 
Transportation Officials (AASHTO) which represents the departments of 
transportation in the fifty states and the District of Columbia and 
Puerto Rico. We want to thank you and the Members of your Subcommittee 
for convening this hearing to address the transportation conformity 
provisions contained in H.R. 3, The Transportation Equity Act: A Legacy 
for Users (TEA LU).
    In my testimony today I will discuss how H.R. 3 addresses ``next-
generation'' refinements to the transportation conformity process to 
build on the experience we have gained over the last nearly fifteen 
years. We would like to see procedural modifications to conformity to 
enable better alignment and greater consistency between the 
transportation and air quality planning processes, including analytical 
tools and planning assumptions.
    The policy objective of the transportation conformity process, 
which was adopted with the enactment of the Clean Air Act (CAAA) in 
1990, is to coordinate air quality and transportation planning by 
ensuring that transportation plans are consistent with planning for 
attaining federal air quality standards. The results have been 
positive---coordination between air quality and transportation planning 
has improved and cooperation between air quality and transportation 
planning office has increased. The process has resulted in greater 
awareness of decision makers of the linkages between transportation and 
air quality and has encouraged broader involvement in transportation 
planning by stakeholders. We support and applaud these improvements.
    Nevertheless, after nearly fifteen years of experience, we believe 
the transportation conformity process is still not working as 
effectively as it could. Misalignments and inconsistencies in planning 
horizons, planning updates, assumptions and modeling tools result in 
unnecessary complexity and confusion.
    The impact on transportation programs is substantial. Since 1999, 
74 nonattainment or maintenance areas have had a conformity lapse, 
putting billions of dollars for transportation projects on hold. In 
over half of these areas, the reason for the lapse was simply confusion 
about deadlines. Process inefficiencies impose an additional 
administrative burden with sizable opportunity costs--scarce staff and 
resources are diverted from addressing the wide array of existing and 
emerging transportation policy challenges, including for example, 
safety, security and broader environmental and community objectives.
    AASHTO has identified several procedural improvements to the 
conformity process--improvements which would harmonize the 
transportation and air quality planning process and reinforce the role 
of conformity to ensure consistency with SIPs. The goal is simply to 
strengthen the connection between transportation and air quality 
planning by making common sense improvements to the conformity process 
that will benefit transportation and air quality agencies alike.

                        ALIGN PLANNING HORIZONS

    Metropolitan transportation plans are required to have a minimum of 
a 20-year planning horizon. State Implementation Plans (SIPs) are for a 
period that extends to the attainment date with the latest being 2021. 
The vast majority of MPOs have attainment dates of 2013 or earlier. 
Transportation agencies need to demonstrate conformity to the last year 
of the plan which means that on-road mobile sources are constrained to 
the motor vehicle emissions budget from the attainment year to the last 
year of the transportation plan unless SIPs specifically establish 
budgets for years after the attainment date yet within the 
transportation planning horizon. Also, there can be no credit taken for 
technology or other measures that may be available during the out-years 
unless those measures have a regulation in place and implementation is 
assured.
    The mismatch in the timeframes for transportation and air quality 
plans has placed an undue burden on the on-road mobile sector where 
there are very few measures remaining that can be implemented that will 
yield significant emissions reductions. This is especially true as 
vehicles continue to get cleaner and federal controls on vehicles are 
phased in. This has caused problems for transportation agencies in 
making conformity determinations, which is a criterion for receiving 
Federal highway and transit funding.
    AASHTO's Policy Recommendation: Require conformity determination on 
the first ten years of the transportation plan or to the attainment 
date, whichever is the longer time period. For informational purposes, 
regional emissions analysis would be done on the remaining years of the 
transportation plan.

To address this issue we believe that the following provisions of 
        H.R.3, The Transportation Equity Act: A Legacy for Users could 
        be improved.

Time Horizon for Conformity Determinations in Nonattainment Areas 
        (Section 1824 (c))
    H.R. 3 continues the requirement that the conformity finding be 
based on the final year (at least 20 years in the future) of the 
transportation plan. However, at the election of the MPO and an air 
pollution control agency . . ., the conformity finding may be based on 
the latest of: (1) the 10th year of the plan; (2) the attainment date 
of the SIP; or (3) the year after the completion date of a regionally 
significant project, if approval is required before subsequent 
determination. Regional emission analysis must be done for the 
remaining years of the Plan.
    While we agree with the provision generally, we request two changes 
that would improve the efficiency and effectiveness of the conformity 
process.
    We support the three options for the end date of the regional 
emissions analysis, especially given the fact that many MPOs are now 
developing plans that go for 25 or even 30 years. However, we request 
that the regional emissions analysis for the ``out-years'' be conducted 
for informational purposes only, if at all. The value of estimating 
emissions out 20 years or more is marginal at best given the models and 
tools in place and the margins of error inherent in such estimates. If 
this analysis is done for informational purposes only, it will give the 
MPO and applicable air quality agency a rough sense of whether there 
may be an issue in the future, but would not carry any new real or 
perceived policy or regulatory burdens.
    The second change we request is that the MPO be required to consult 
with the applicable air quality agency on the end date of the analysis, 
but that the concurrence of such agency not be required. U.S. DOT (FHWA 
and FTA) is responsible for making the final conformity determinations 
and the MPOs are the regional entities charged with responsibility for 
developing the initial determinations, through a prescribed interagency 
consultation process. This process is established in MPO regions and 
works. We suggest this is the process that should be used to determine 
the horizon for the conformity determination. With this change, H.R. 3 
would not confer new authorities on air quality agencies and, in 
effect, provide air quality agencies veto power in the conformity 
process.

  PROVIDE MORE PREDICTABLE AND COORDINATED PLANNING UPDATE CYCLES AND 
                    CONSISTENT PLANNING ASSUMPTIONS.

    Transportation plans must be updated not less frequently than every 
three years. Transportation Improvement Programs (TIPs) must be updated 
every two years. In addition, there are various SIP-related triggers in 
the transportation conformity rule that require plan and TIP updates 
within 18 months of various SIP actions. State Implementation Plans 
(SIPs) do not have a regular update cycle and are not updated 
frequently.
    This has created a situation where transportation plans are updated 
regularly while SIPs are updated on a discretionary and sporadic basis, 
resulting in overlapping plan cycles, public confusion, less time spent 
on other important planning tasks and a continuous conformity process 
in many areas. In addition, the unpredictable nature of the 18-month 
SIP triggers for conformity redeterminations has caused uncertainty in 
the transportation planning and TIP development processes. Because 
transportation plans, TIPs and SIPs must use the latest planning 
assumptions each time they are updated; the assumptions used in SIPs 
tend to be older than--and inconsistent with--those in transportation 
plans and TIPs. AASHTO believes that the conformity process must 
provide a more predictable and coordinated transportation and air 
quality plan update cycle along with consistent planning assumptions.
    AASHTO's Policy Recommendation: Require update of metropolitan 
transportation plans and TIPs at least every five years with 
transportation conformity determinations required after each update, 
unless more frequent updates of the TIP are needed.

To address this issue we support the following provision of H.R.3, The 
        Transportation Equity Act: A Legacy for Users but believe it 
        could be improved .

TIP Update Cycle (Section 6001)
    We support H.R. 3's provision that provides for a four year update 
of the TIP but believe that it could be improved by extending the 
update cycle to five years.

    REQUIRE CONFORMITY ONLY FOR NONATTAINMENT AND MAINTENANCE AREAS

    Transportation conformity determinations must be undertaken for all 
nonattainment and maintenance areas. Currently, if an area has 
completed its 20-year maintenance period prior to the last year of 
transportation plan, the area still must meet conformity requirements 
all the way to the last year of the transportation plan--the ``horizon 
year'' (e.g., end of 20-year maintenance period is 2006 and the 
transportation plan horizon is 2025). Because some areas are 
approaching the end of their 20-year maintenance periods, this 
situation is beginning to surface. Similarly, when Maintenance Plans 
reach their 8-year update point, the new SIP budget need only be for 10 
years out, rather than the 20+ years required for transportation plans.
    AASHTO's Policy Recommendation: Clarify that conformity 
determinations are required only for that time period when an area is 
classified as nonattainment or maintenance, and analysis must be done 
only to the end of the maintenance period.

To address this issue we believe that the following provisions of 
        H.R.3, The Transportation Equity Act: A Legacy for Users could 
        be improved.

Conformity to the End of the Maintenance Period (CAA section 175(A)(b)
    H.R. 3 section 1824(c) would limit conformity to the end of the 
maintenance period required under CAA section 175(A)(b), provided the 
MPO and air quality agency agree. This would, as noted above, confer 
new authorities to the air quality agencies, which would be 
inconsistent with current practice and with the extensive consultation 
process currently in place in each nonattainment and maintenance area. 
We believe that conformity should be limited to the end of the 
maintenance period, which is at a minimum 10 years after an area 
attains federal standards.

                      SYNCHRONIZE SANCTION CLOCKS

    In the event of a conformity lapse, there are immediate 
consequences in that only certain types of transportation projects may 
proceed until the lapse is resolved. In contrast, in the event of a SIP 
failure, there is an 18-month period in which to correct the SIP 
failure prior to the imposition of sanctions. In essence, a conformity 
lapse functions as an immediate sanction with no time permitted to 
correct situations that might have led to the lapse.
    AASHTO's Policy Recommendation: Align the conformity lapse with 
same 18-month time clock for imposition of sanctions for SIP failures 
in order to provide a similar amount of time to correct deficiencies in 
transportation plans and TIPs.

To address this issue we support the following provisions of H.R.3, The 
        Transportation Equity Act: A Legacy for Users.

Conformity Lapse (Section 1824(e)
    We support the H.R. 3 language on conformity lapse, which would 
allow 12 months to correct a Plan/TIP deficiency. While still not 
totally consistent with the SIP process, this provision would make the 
conformity process more consistent with the State Implementation Plan 
(SIP) process for air quality planning which allows 18 months to 
correct deficiencies prior to the applicability of any sanctions.

                      TRANSITION TO NEW STANDARDS

Transition to New Air Quality Standards Before New Budgets are 
        Available
    While H.R. 3 does not address this issue, we support adding 
language that would allow areas that are transitioning into new air 
quality standards to use existing motor vehicle budgets for the same 
pollutant or other emission tests to demonstrate conformity before new 
budgets are available. There are numerous inconsistencies in the new 
nonattainment boundaries for ozone, for example, where the boundaries 
are generally not the same under the new 8-hour standard as they were 
under the 1-hour standard. H.R. 3 should provide MPOs the option to 
either use the existing 1-hour budget or other emission tests (new 
interim emissions tests are included in the recently updated conformity 
rule). This would help address the boundary inconsistencies in the way 
that makes most sense in each nonattainment or maintenance area. The 
established interagency consultation process would be used to determine 
which tests or budget should be used.

                               CONCLUSION

    We are encouraged by the proposed changes in the transportation 
conformity process and request the changes discussed above. AASHTO 
appreciates the opportunity to work with you and your subcommittee, and 
looks forward to continuing to explore approaches with you for 
improving transportation and air quality planning through the 
conformity process.

    Mr. Hall. Thank you, Mr. Njord, and we appreciate you, and 
appreciate all of you that have taken your time to come and 
prepare for this, and travel here, and give testimony, and 
travel back, and to keep with your schedule. I will ask you the 
first question, if it is okay, Mr. Nottingham, we will start 
with Mr. Njord.
    In your testimony, you state that regional emissions 
analysis for the out years be conducted for informational 
purposes only, if at all. I think we all recognize that 
predictions are fraught with uncertainties. However, don't you 
agree that such an analysis, even with incomplete models or 
margins of error, provide some basis for the policymakers and 
transportation planners to maybe initiate some changes for 
future regional transportation, and for air quality planning? 
Wouldn't that be some help?
    Mr. Njord. I believe that the out years, there is some 
value in doing that analysis just for a check. But for 
conformity, it doesn't make sense doing conformity out 20 to 30 
years, out when it is like shooting an arrow. It is only 
accurate so far. If you are trying to shoot an arrow 1,000 
yards, you are not going to hit your target, but under 100 
yards, you can certainly hit the target. It is the accuracy of 
the information that I would be concerned with there.
    Mr. Hall. All right. Mr. Strickland, do you have any 
questions for this witness.
    Mr. Strickland. No, sir. Thank you.
    Mr. Hall. We are trying to accommodate your schedule, and 
Mr. Shimkus. Or good doctor, do you have any questions?
    Mr. Shimkus. For Mr. Njord, Chairman, just the--I would 
like to--I know you addressed the issues of the out years, and 
Mr. Njord, why do you have--and excuse me if this was asked, I 
was talking to Dr. Burgess, why do you have objections to the 
requirements that MPOs and air quality agencies must agree to 
the final conformity determinations?
    Mr. Njord. Thank you for that question. We have a great 
relationship with our air quality agencies on the State level, 
and work with them on a continuous basis to implement our SIPs 
and our transportation improvement programs. If, in fact, a 
concurrence is required, it empowers the air quality agencies 
more than they are today. Now, if we want to create an 
additional check-off, then that is the way to do it. What we 
were hoping to do was to be able to streamline this process, so 
that we can get through conformity quickly. I don't think we 
disagree with them. It is just a matter of authority.
    Mr. Shimkus. Yeah, I think--I guess our confusion and mine 
is that, obviously, the current practice almost bespeaks that 
this is already occurring, and the question is do you codify it 
in practice, and you would disagree with that?
    Mr. Njord. We would hope to streamline, rather than to 
codify a process that already works. Why change it? It works 
now.
    Mr. Shimkus. Okay. That is all I have, Mr. Chairman.
    Mr. Hall. All right. I reclaim my time. Doctor, do you have 
questions for Mr. Njord? Thank you. I reclaim my time. I think 
I have 3\1/2\ or 4 minutes left.
    Mr. Nottingham, what are the six areas that are currently 
in a conformity lapse? You discussed a mismatch of 
transportation and air planning in your testimony, and the fact 
that the assumptions underlying transportation plan emissions 
and emissions budgets might be different.
    Mr. Nottingham. Chairman Hall----
    Mr. Hall. Do you have examples of this?
    Mr. Nottingham. Oh, yes, sir. If the question is--I am 
sorry, I misheard the question. We currently have, as of today, 
six areas in the country that are actually in a lapse. I can 
give you where they are if you would like.
    Mr. Hall. If you would.
    Mr. Nottingham. Certainly, sir, and I can give you a little 
bit of information about them. In San Bernardino County, 
California, in--specifically in the Searles Valley portion--
beginning back in April 22, 1999, the lapse began. They are 
expected to be out of their lapse this coming June 15, and the 
reason--and let me know if you want me to skip over the 
reasons. I can just give you----
    Mr. Hall. Please continue.
    Mr. Nottingham. Yes, sir.
    After San Bernardino County, it is Billings, Montana; Lake 
Tahoe, in the California/Nevada border region; Dover and Kent 
County, Delaware; Sacramento, California; and Reno, Nevada.
    Mr. Hall. Are any of these examples in conformity lapse, 
what they call conformity lapse?
    Mr. Nottingham. Yes, sir. All of them are.
    Mr. Hall. All right. Will H.R. 3 help alleviate this 
problem by synchronizing studies, or in any other manner?
    Mr. Nottingham. Yes, sir. They would. Speaking in general, 
many of the lapses we see, both currently and in general, are 
really, as Director Njord touched on, almost ``administrative 
and paperwork lapses,'' due to the fact that we don't have the 
right synchronization right now. We have got air quality plans 
with certain horizons, typically 3 years now, and 
transportation plans with 20 and 25 year horizons. Therefore, 
we have to take resources away from State DOT and MPO real 
highway and transit planning to constantly be updating these 
plans. Sometimes, people are working on the current 3 year air 
plan and the next one at the same time. So certainly H.R. 3 
would go a long way. We actually do think H.R. 3, supplemented 
with a couple of the administration's additional proposals, 
would even do a better job.
    Mr. Hall. Well, I thank you for that, and you know, we hit 
deadlines from time to time. Can you give any examples where, 
for example, an area fell into what they call conformity lapse 
because it couldn't finish a conformity determination in time, 
even though it didn't exceed its emissions budget?
    Mr. Nottingham. Yes, sir, Mr. Chairman. In Billings, 
Montana, also in the Lake Tahoe region, and in the Dover and 
Kent County, Delaware regions. Those are all currently 3 
examples where the conformity lapsed because deadlines were 
missed. So the answer to your question is those 3 examples 
currently, and many more in past years.
    Mr. Hall. All right. My time is almost up. I recognize the 
gentleman from Virginia.
    Mr. Boucher. Thank you very much, Mr. Chairman, and while I 
didn't make an oral opening statement, I had in my written, 
prepared statement, which is now part of the record, thanks to 
you, and to Chairman Barton, and to your outstanding staffs for 
their bipartisan work with us, in structuring the language that 
is in H.R. 3, which is the subject of today's hearing. We very 
much appreciate your cooperation and the good work on both 
sides, which has led to the construction of that language.
    Let me ask our witnesses if the administration supports 
that language, the language that is in H.R. 3, which would 
address the lapse problem. Mr. Nottingham.
    Mr. Nottingham. Thank you, Mr. Boucher. We--the 
administration--does support many of H.R. 3's conformity 
proposals. We think they are on track and going after the same 
problem we are trying to address, which is to increase the 
synchronization you have heard about today, try to integrate 
more closely the transportation and the air quality planning 
processes. I will say that we do share Mr. Njord and AASHTO's, 
and many other stakeholders' concerns that putting into code, 
by codifying almost a veto, really a veto role for the air 
quality agencies in transportation conformity determination 
requirements, we think is going a little too far. We understand 
it is well intentioned, but in reality, all the States' DOT 
heads and air quality heads report to the same elected 
official, the Governor in most cases, almost all cases, and 
they work pretty well together. We are worried that having an 
extra item in code may just create some unforeseen problems.
    As far as--maybe if I could pick one other area that----
    Mr. Boucher. Well, I understand you are offering some 
suggestions for modifications of these provisions.
    Mr. Nottingham. Yes, sir.
    Mr. Boucher. But in the main, you support what--the 
direction we have taken----
    Mr. Nottingham. Yes, sir. For example, moving from 3 to 4 
years on the conformity and planning horizons is the right 
direction. We would ask you to consider taking that an extra 
year to 5, but you are on the right track with H.R. 3.
    Mr. Boucher. All right. That is good. Mr. Holmstead, do you 
agree on the--with the comments Mr. Nottingham has made?
    Mr. Holmstead. Thankfully, yes. I do. We are on the same 
page on this one. I think we support, generally, the direction 
that H.R. 3 is moving in. This--particularly this issue of the 
4 versus 5 years. One of our concerns has just been that these 
plans become more meaningful and better if they don't happen so 
often.
    Mr. Boucher. But in the main, you do support the trend that 
is reflected in these changes?
    Mr. Holmstead. Yes.
    Mr. Boucher. All right. And just to highlight the need for 
these changes, to talk a little bit about what is happening 
today. I understand that there are six areas that are currently 
in lapse. Describe, if you will, what is happening in these six 
areas. Are Federal funds for projects being restricted as a 
consequence of the lapse, and are these lapses primarily caused 
by the lack of synchronization in the planning cycles between 
State implementation plans and transportation implementation 
plans that you referred to earlier? Who would like to answer? 
Mr. Holmstead?
    Mr. Holmstead. Well, I have to confess that I am not 
familiar with the details in each of these----
    Mr. Boucher. I think Mr. Nottingham probably is the proper 
person to answer. Mr. Nottingham.
    Mr. Nottingham. Sure. Thank you, Mr. Boucher. In general, 
the current six areas that are lapsing are not experiencing big 
problems with project delays. And that, I think, speaks well to 
the regime generally as it has worked, which is when you do 
lapse, you can still continue projects that have begun and are 
already underway in a certain phase. For example, if you are in 
the right-of-way phase, buying real estate for a project, you 
can keep going with right-of-way, but if you are in lapse, you 
can't go to that next phase, which typically would be actual 
construction, or perhaps preliminary engineering.
    And most of these cases are shorter term. I will say there 
is a little bit of a hidden cost often, where it relates a lot 
to construction seasons. I know from the part of southwest 
Virginia you are in, sir, you understand very well that there 
are some times of the year where it just isn't really possible 
to be laying asphalt and building roads. Chairman Hall's area 
of the world is a little more fortunate. They can pretty much 
build almost all year round. If you do have even a 1 or 2 or 3 
or 4 month lapse, and it is the wrong time of year, it can push 
you into another construction season. On paper, that looks like 
not a big deal. But, when you realize that every year we face 
enormous inflation costs, and you look across the country, it 
is kind of a quiet, but very real cost concern to us.
    Mr. Boucher. And are the reasons for the lapses in these 
six areas the lack of synchronization between the SIP and the 
TIP that you have described earlier, or is it a basic conflict 
in policy between the transportation implementation plan and 
the State implementation plan?
    Mr. Nottingham. Sir, I would say largely the former. And 
specifically, in the first three I mentioned, in San Bernardino 
and Billings and Lake Tahoe.
    Mr. Boucher. Would you say that that condition is 
characteristic of lapses when they normally occur around the 
Nation, that it is usually because of a lack of synchronization 
in schedules?
    Mr. Nottingham. If I could, let me just confer with staff, 
to make sure I get that right. I am advised, sir, that in most 
of the cases, it is. It really relates to missing the 3 year 
time cycle deadline. In transportation circles, 3 years is 
actually a pretty short window, when it takes, typically, 
unfortunately--and we are working with some other committees on 
some of these problems--but often, 4 or 5 years to get through 
the environmental process in a project, 3 years is--and then 
working on the next 3 year cycles is a very short window.
    Mr. Boucher. Okay. Mr. Holmstead, in the time I have 
remaining, let me ask you about your recommendation that 5 
years be the date for conformity updates, rather than the 3 
years, which is current law. Why choose 5 years? What is the 
magic of that number? Do you have any studies or any empirical 
data showing that 5 years is more appropriate than 3, or is it 
simply a matter of saving work and saving money?
    Mr. Holmstead. Well, it is based on the judgment of people 
from both EPA and DOT, and State and local officials who work 
on these plans, and one of the concerns, as I think you know, 
is the 3 year cycle comes around so quick that people are just 
doing the paperwork to comply with the date, and I think our 
judgment was that if you expand that to 5 years, they become 
more meaningful exercises, and you get better modeling, you get 
better analysis. That could be said of 4 years, I suppose, but 
5 years, actually, better aligns with sort of the current 
transportation planning process, and that is why we support the 
5 year process, as opposed to just 4.
    Mr. Boucher. Did you have any analysis of the consequence, 
in terms of emissions, if we go from 3 years to 5 years, as you 
recommend?
    Mr. Holmstead. I wouldn't expect to see any emission 
consequences. I can't tell you that we have analysis, but it 
would be, I think, difficult to quantify any difference between 
4 and 5.
    Mr. Boucher. Well, in any event, we have settled on 4, in 
the draft that is pending at the present time. You don't have a 
problem with that, I suppose.
    Mr. Holmstead. We would rather have 4 than 3.
    Mr. Boucher. Okay. I could anticipate that answer. Thank 
you very much, Mr. Holmstead and Mr. Nottingham. Did you want 
to comment, Mr. Nottingham?
    Mr. Nottingham. If it would be okay. Just very briefly, 
sir, because your question touches on a very important point, 
the 5 year difference compared with 3 years. In answer to your 
second question, if I understood it correctly, there would not 
be any implications on any actual conformity determinations by 
going from 3 to 5. In the event that new projects were added or 
new data came in, the conformity process would automatically be 
triggered regardless of the 3 or 5 or 4 year window. So there 
is a safeguard there. A point I think is also worth making is 
that the general conformity timeline that covers pretty much 
the whole world, except the highway and transit sector, is 5 
years. So the fallback time horizon for conformity universally 
is 5 years. Specifically to highways and transit, it is 3. And, 
if you look, we have got, I think, by our count, about 7 
different timeframes we deal with in planning and air quality 
conformity work. Going to 5 years would greatly harmonize all 
of those.
    Mr. Boucher. Thank you both. Thank you, Mr. Chairman.
    Mr. Hall. Well, thank you. And thank you, gentlemen. The 
Chair recognizes Mr. Shimkus.
    Mr. Shimkus. Thank you, Mr. Chairman. And I was going to 
recognize Bob Meyers, who--a former committee staffer, but he 
snuck out, so I don't know where he went to. But while I have 
some time, I may be getting off the subject, but I am 
wondering, two areas which we are going to be addressing in an 
energy bill. One is trying--in the last bill, H.R. 3, there was 
a move to address the balkanization of fuels, based upon local 
area SIPs and the mix--the multitude of mixtures of fuels in a 
very short distance. If we do that, does this affect this 
process at all?
    Mr. Holmstead. It really is a completely separate issue. 
I--we recognize that the balkanization of fuels issue is an 
important one to consider. As you know, Mr. Shimkus, we have 
tried to work on some ideas to address that, but I don't really 
think it has an impact one way or another on the conformity 
process.
    Mr. Shimkus. What about the--there is another provision in 
the bill that deals with--and my crack staffer's wife is in the 
process of giving birth to a baby right now, so he is not here 
to give me the proper terminology, but in--across--there is 
regions in the country where they are in nonattainment 
primarily because of activities across State lines. In my area, 
because of St. Louis, and that is not uncommon, and so--and 
part of the issues was an acknowledgement of that, an 
acknowledgment of the improvements made locally, and not to 
be--and not a disincentive based upon what is not controllable 
by the State. Has that evolved in any part of this debate, 
either?
    Mr. Holmstead. We refer to that as the transport issue.
    Mr. Shimkus. That is right.
    Mr. Holmstead. As pollution as transported from one 
region----
    Mr. Shimkus. Right.
    Mr. Holmstead. [continuing] to another. Again, I think that 
that is largely unrelated to this issue of transportation 
conformity. One of the concerns that I think people have 
legitimately had is if you are in a small area with very little 
traffic, you may be in nonattainment primarily because of 
emissions from another area, and the question is well, gee, 
does it really make any sense for us to do all this 
transportation planning, when transportation sources are not a 
big--not a significant issue in our area. We have, by 
regulation, tried to address that already by allowing an area 
to show that transportation is sort of a de minimis issue, and 
not have to do the transportation conformity in those 
situations. And whether that is something we can better do 
through legislation, I think, we would be open to talking 
about, but we do try to accommodate that within our existing 
regulatory structure.
    Mr. Shimkus. And just to stay on this type of direction, if 
we make the assumption, and I am just--that H.R. 3 of the last 
Congress will be pretty much the base of the national energy 
policy. It may not be. Is there anything in there that would 
affect this debate on this bill that we are referring to, I 
guess, which is H.R. 3?
    Mr. Holmstead. I don't think so, but I have to----
    Mr. Shimkus. It might be good to know, because then, we 
would be going crossways.
    Mr. Holmstead. I think the answer to that is no, but let me 
just suggest that if we--that we go back and think as to 
whether there is any such issue, and if so, we will certainly--
--
    Mr. Shimkus. Yeah. Raise it with my----
    Mr. Holmstead. [continuing] advise the----
    Mr. Shimkus. [continuing] staff--and my staff would be 
happy to reconcile any differences.
    Mr. Holmstead. Okay.
    Mr. Boucher. Thank you. Mr. Chairman, I yield back.
    Mr. Hall. Thank you. The Chair recognizes the gentleman 
from California, Mr. Waxman, for 5 minutes.
    Mr. Waxman. Thank you, Mr. Chairman, and Mr. Holmstead.
    Good to see you again, I suppose. Except I do want to take 
this opportunity to tell you how deeply disappointed I am about 
the communications between your office and members of this 
body, because it appears that they have entirely broken down. 
We have made many requests for information, and I don't think 
you have been responsive. The last response I received from you 
to an information request arrived on November 17, 2004. That 
request had been outstanding for almost 5 months. Your response 
was 4 pages long. It arrived on the morning of November 17, 
just minutes before the EPA Deputy Administrator was scheduled 
to testify before the committee in which I am the Ranking 
Member. Among other incidents, you previously failed to respond 
to a set of questions for the hearing record on clean air 
issues for 8 months after I sent you the questions, and I have 
raised the issue before with you at hearings like this. Back in 
May 2002, and again in July 2003, but I must tell you, I don't 
see any improvement.
    Most recently, you failed to respond to questions for the 
hearing record from a November 2004 hearing. That was last 
November. It is now March. Today, again, just minutes before 
this hearing, I received a partial response to the request, 
with a promise to provide the remaining responses later. I see 
a clear pattern, and I consider it unacceptable.
    Mr. Holmstead, do you dispute Congress' authority to 
conduct oversight of Federal agency activities?
    Mr. Holmstead. No, I certainly do not. We just are 
obviously trying to take care of all of the obligations that 
you have given us, and so, we do our best to try to make sure 
that we respond to requests, while at the same time, we are 
meeting statutory and judicial deadlines on other things. But I 
can tell you there are people who put in an----
    Mr. Waxman. These are information requests----
    Mr. Holmstead. [continuing] enormous amount of time.
    Mr. Waxman. [continuing] Mr. Holmstead, that address 
serious matters. For example, the questions I and my colleagues 
sent in November 2004 concern EPA's pending rule to regulate 
mercury emissions from power plants, and many of the same 
issues we raise were flagged by the EPA Inspector General in a 
recent report. The Inspector General strongly criticized EPA 
for failing to conduct an unbiased technical analysis needed to 
support the rule. We had inquired in detail about EPA's plans 
for such an analysis. Do you disagree that these are important 
issues?
    Mr. Holmstead. No, these are certainly important issues. 
It----
    Mr. Waxman. In your testimony today, you made a number of 
valuable points about the importance of transportation 
conformity requirements to clean air and to public health, but 
I feel you undermine your credibility by repeatedly failing to 
respond in a complete and timely manner to basic oversight 
inquiries.
    I would like to discuss one other matter with you today in 
the short time I have left. Another key piece of the clean air 
agenda is the implementation of the new national, health-based 
standards for fine particulate matter. Cities and towns across 
the country currently have unsafe air quality, due to 
particulate pollution. Fine particles aggravate heart and lung 
diseases, and for tens of thousands of Americans, cause 
premature death. The administration should be doing all it can 
to move forward on this problem. Specifically, EPA must issue 
the fine particulate matter implementation rule, which gives 
the States guidance in developing their cleanup plans. But 
instead, we have seen foot-dragging and delay.
    Former Administrator Levitt testified before the Senate 
last April that EPA intended to propose the implementation rule 
in June 2004 and finalize it in late 2004, or early 2005. EPA 
sent the proposal over to OMB formally last October. OMB has 
now exceeded its review period, but still has not released the 
rule. When is the administration going to issue this important 
rule?
    Mr. Holmstead. I believe it will be fairly soon. We are 
trying to coordinate a number of important rules, including 
rules that will do more than this country has ever done to 
reduce fine particle pollution, among those, the non-road 
diesel rule, among those, the clean air interstate rule, both 
of which will achieve greater emissions reductions than 
anything any administration has ever done. We are obviously 
working to try to----
    Mr. Waxman. Well, you don't--you are not going to do it 
until the rule is promulgated, so in this particular area----
    Mr. Holmstead. No, no. We actually regulate directly, so 
we--the implementation rule you refer to is obviously 
important, but we want to coordinate that with the other rules 
that are actually achieving immediate reductions.
    Mr. Waxman. But this rule won't go into effect until OMB 
signs off on it. Isn't that correct?
    Mr. Holmstead. The process by which States take action to 
improve their air quality is not dependent on that rule.
    Mr. Waxman. No, but this is a guidance for the States.
    Mr. Holmstead. This is a guidance for the States----
    Mr. Waxman. You said soon.
    Mr. Holmstead. [continuing] and we are trying to----
    Mr. Waxman. Soon means what?
    Mr. Holmstead. I would expect that----
    Mr. Waxman. Weeks?
    Mr. Holmstead. [continuing] we would be in a position to 
propose the rule within the next month or 2.
    Mr. Waxman. Okay. Thank you, Mr. Chairman. I see my time is 
up.
    Mr. Hall. The Chair recognizes Mr. Burgess, the gentleman 
from Texas.
    Mr. Burgess. Thank you, Mr. Chairman, and I apologize for 
being out of the room for part of the time. Of course, the 
Chairman and I represent the same area of north Texas, which is 
under some--what are we calling it now, nonconformity issues, 
and I have just had a lot of concerns that highway money would 
be diverted from the north Texas area under the nonconformity 
rules. Our biggest problems in the Denton County area that I 
serve are--our biggest problems are, in fact, roads that were 
never meant to handle the traffic loads that they are handling, 
and the resultant congestion is responsible for a significant 
amount of air quality problems, so what are we doing to make 
certain that while we are trying to enforce compliance with 
conformity, that we are not actually making the problem worse? 
If we divert highway funds from our area to west Texas, we are 
not--we may keep the State's rate of return, but we are really 
doing little to alleviate the air quality issues.
    Mr. Nottingham. Dr. Burgess, if I may, you raise a very 
important question. It is one I wrestled with as the Virginia 
Commissioner of Transportation, where we had several fast 
growing suburban or urbanized areas, not too unlike north Texas 
in the Dallas region, that were desperate for some new 
capacity, and for some congestion relief, and other 
improvements, and were constantly bumping up into the 
conformity ceiling and headroom, and as a State Commissioner, 
it is very tempting to just put your extra resources elsewhere 
in the Commonwealth or the State, where you don't need to worry 
about that. And that is great for those regions, but often, 
they are not the ones with the traffic, or the severe traffic 
problems. They all have needs, but--for sure, but I think some 
of the proposals we have talked about today that are in H.R. 3, 
and also, some additional ones in the administration's SAFE-TEA 
proposal, by--would improve the synchronization, as we have 
talked about, better align the air conformity planning process, 
and the transportation planning process.
    One of the problems we have today, sir, is technology, and 
this is a good part of the problem, technology, cleaner fuels, 
some of the good work that the EPA has done over the years, 
good work that our industry has done, the auto industry and 
others. The transportation piece of the clean air problem is 
getting much better very fast, and has over the last 35 plus 
years, and so, when we look out at a 20-year transportation 
plan, and compare that to a 3-year air quality plan, in a fast 
growing region, and have to guesstimate what the technology and 
the actual air conditions might be, mind you, the trends are 
positive now, it becomes very speculative. And to put a--to 
raise the specter for a region, that they may have to pause 
their major new projects while they recalculate estimates, 
rerun projections, it is a very tough nut to crack, and I don't 
know if I have answered your question, but I think that H.R. 3 
is on the right track to meet the concern that you have raised.
    Mr. Burgess. Is there also any attention paid to the 
transport of, say, ground level ozone from other areas, and in 
our north Texas area, we do get some transport of ground level 
ozone from the Houston Gulf Coast area, and while those numbers 
may not be very high, in the range of 15 to 35 parts per 
billion, if we are only out of compliance by 1 or 2 parts per 
billion, obviously, that is a significant--that transport 
ground level of ozone transport is a significant contribution 
to us being out of compliance.
    Mr. Holmstead. That is an issue that we are well acquainted 
with, and actually, have tried to address that in some 
regulatory changes, including a change that was overturned by 
the courts when we tried to accommodate that so we could better 
synchronize the schedules. I know there has been an effort to 
try to recodify that, and we would support that kind of an 
effort. The other thing I would say, though, is to some extent, 
in Texas, you are fortunate because the transport comes from 
the same State, and so what we are seeing in the State of Texas 
is a concentrated effort on the air quality side to try to make 
sure that the problems in the north Texas area, and their 
relationship with the Houston area, really are all considered 
together, and we think the State of Texas is actually moving a 
long way in the right direction to address both of those.
    Mr. Burgess. I would just make the point that we do receive 
some contribution from the burning of the sugar cane fields in 
Mexico, as well as occasionally, we get the brown muck moving 
in from the Mississippi Valley.
    Thank you, Mr. Chairman. I will yield back.
    Mr. Hall. Thank you. The Chair recognizes the gentleman 
from Texas, Mr. Green.
    Mr. Green. Thank you, Mr. Chairman, and all due respect to 
my doctor colleague, we will deny we send anything up to the 
Dallas-Fort Worth area from Houston. But--again I want to 
welcome our Administrator. I have some concerns about the 
transportation conformity process. In the last session of 
Congress, Congressman Brady and I from Houston, or the Houston 
area, introduced legislation that would allow for grandfathered 
projects to go forward under a conformity lapse, and the 
concern that we have is that we have these projects, and yet, 
for some reason, they are--we are in noncompliance, and those 
projects stop. I know that is the teeth that EPA has, but it 
sure seems like economic waste in particularly urban areas, or 
anywhere where you have projects that are underway, and they 
get partially built, and then they are halted because of 
Federal law.
    Having said that, I want to give you an opportunity to 
defend the necessity of the transportation conformity process 
as a whole, and is there a way we could split the difference if 
something is going on now that may actually help us with our 
both traffic, and ultimately, our air problems? Is there a way 
we can have the best of both worlds, both the carrot, but also 
the stick, to be able to finish some projects?
    Mr. Nottingham. Thank you, Mr. Green, if I could. I think 
the transportation community welcomes a little bit of a stick. 
And all of the State DOTs have numerous environmental experts 
now. The transportation sector as a whole--sort of an old 
saying--is not your father's Oldsmobile. It is a whole new 
world out there, and so, the fact that the Clean Air Act is 
important, and that the transportation community does embrace 
it, that is not a problem. The fact that there are very real 
sticks, to use your word, is not a problem.
    I will say, we have talked earlier today about the need to 
better align and coordinate some of these planning horizons, 
because too often, the stick gets triggered really 
unnecessarily because there is a disconnect, not because there 
a wrongdoer in a State agency trying to wrong the environment. 
It is just the system and the process--the time it takes to 
update a transportation plan and the associated conformity 
determination every 3 years, to remedy, rectify that, and to 
marry it up with a 20 or 25 year transportation plan. And so, 
doing some of the things that H.R. 3 does, combined with maybe 
a couple other things that our administration bill does, and 
that the Senate bill does, really would help that matter. But 
we are not--I am not--here to say do away with some of the 
strong requirements, because they are there for a good reason. 
The transportation community welcomes them, by and large, and 
it--the grandfather provision--is an interesting one, because 
places like Atlanta, and other places, have really had to 
wrestle over the years with how to keep major projects, that 
they have invested millions and millions of dollars on, moving 
while they sort out----
    Mr. Green. And again, knowing Atlanta, but knowing the 
Houston area, we have some of the same problems, because again, 
we are--some of those projects actually would help our quality, 
if we could get them done. Recently, I had a real productive 
meeting with Jeff Clark from your EPA's air office, where we 
learned that EPA activities are coming soon, under the current 
law, to reduce industrial air toxic levels. Could your office 
provide any estimates on the future reductions of air toxics, 
both from the mobile sources that we are talking about here, 
that the Houston area may see under current law, because our 
concern, and there was a series of articles a few weeks ago 
concerning the toxins, but they were mainly from--toxics, but 
they were talking about stationary sources, our industry. And 
under provisions of our Highway Bill last year, do you see any 
weakening in pollution control from mobile sources in general 
under this legislation?
    Mr. Holmstead. Really, there are two different questions 
you ask.
    Mr. Green. Yes.
    Mr. Holmstead. One is about the toxics from stationary 
sources, the toxics from--and then, the second one is the 
toxics from mobile sources.
    Mr. Green. Well, then, since we are dealing with highway, 
this is a mobile source problem, I assume.
    Mr. Holmstead. Right. Right. I don't think any of the 
provisions that are in your bill would have a significant 
impact on what we call mobile source air toxics one way or 
another. With respect to the overall reduction of air toxics 
emissions, we are now nearing the end of the first stage of the 
process of controlling those pollutants. I know that 
nationwide, our estimates are that that has reduced air toxics 
by about 1.7 million tons a year. I don't know exactly what 
that means for the Houston area, but all of those stationary 
sources, just in the last little while, have been required, or 
will soon be required, to make significant reduction on air 
toxics emissions, and the city and its residents will soon see 
the benefit of those.
    Mr. Green. Okay. And I know on a separate issue, Mr. 
Chairman, one of our concerns is, at least in the Houston area, 
is that it seems like some of the toxins from the upsets or the 
accidents are actually so much more than the permit, and 
somehow, I know, working with my local officials, my State, and 
hopefully, EPA in their regional office, will be able to see 
what we can do to handle that.
    Thank you, Mr. Chairman.
    Mr. Hall. Thank you. The Chair notes the presence of the 
Chairman of Energy and Commerce, the gentleman from Texas, Mr. 
Barton, recognized for as much time as he consumes.
    Chairman Barton. Well, thank you, Mr. Chairman. I won't 
take very much time. I want to compliment you for holding this 
hearing, and I want to thank our two witnesses from the EPA and 
the Department of Transportation for being here. What we are 
trying to do is hold a hearing on a piece of legislation that 
was in last year's highway, that we worked with on this 
committee in a bipartisan basis. It is our committee's 
jurisdiction, but we have acknowledged to the Transportation 
Committee that we will put it in, that we did put it in last 
year's highway bill, and we are going to put it in this year's 
highway, unless there's some controversy that erupts in this 
hearing.
    It is just common sense. It conforms the transportation 
plan, the highway plan, planning horizon, with the 
environmental horizon of the EPA. It is not changing any 
environmental law, or anything like that. It is simply allowing 
communities that have ongoing projects not to have those 
highway projects automatically stopped, because there is a 
lapse or a conformity difficulty between the two statutes. So 
we worked in a bipartisan basis to put this proposal together. 
It was in last year's highway bill. It did pass the House of 
Representatives. Our intention is, if this hearing goes well, 
to put it in this year's highway bill, and from what little I 
have participated in the hearing, it looks like we are having a 
good hearing. So I want to thank our witnesses, and I would 
thank you, Mr. Chairman, for holding this hearing.
    With that, I would yield back.
    Mr. Hall. I thank the Chairman. The Chair recognizes Ms. 
Solis, the gentlelady from California, for 5 minutes.
    Ms. Solis. Thank you, Mr. Chairman, and I also want to 
recognize that you are having a hearing on this very important 
issue, and want to thank you and our Ranking Member also for 
that, and welcome the guests here.
    I represent a district that is heavily impacted by various 
high levels of smog, carbon monoxide, PM2.5, 
PM10 standards, leaving, in many cases, the air very 
unbreathable. We have population there that is largely 
Hispanic, about 70 percent, and more than twice as many of our 
children there are affected by asthma, high rates of asthma. We 
have very, very large freeways, congestion, and in some areas, 
even--in my district, we even have some rock quarries where 
there is a high level of dust particulate matter that consumes 
most of the area.
    I have been working for the last few years on environmental 
justice issues, and wanted to ask you if you could answer some 
questions for me, Mr. Holmstead. Can you tell me what impact on 
underserved communities a planning delay, under both the House 
language and the Senate, and administration language is? That 
is one. Second, can you please tell me in detail what process 
you used, EPA, to come to that conclusion, and then, third, 
could you tell me what outreach efforts you conducted to reach 
out to communities that are underserved, that are most heavily 
impacted?
    Mr. Holmstead. The planning delays that you refer to, does 
that mean the extent of time between the----
    Ms. Solis. Yes. Yes.
    Mr. Holmstead. We actually think that that will improve the 
plans, and I----
    Ms. Solis. As it affects underserved communities? Can you 
explain that?
    Mr. Holmstead. Well, we think that it will improve the 
plans everywhere. Our goal is to make sure that every area of 
the country has healthy air, and so we don't really distinguish 
one community from another. We want to make sure your community 
has clean air to breathe. We really--that is our goal for the 
whole country. It--these--this conformity process is a part of 
a much larger effort, and we are spending enormous time and 
effort on it. We hope that by giving a little more time between 
these plans, we will actually get a better result by having 
better coordination, more detailed analysis. And I think 
generally, people agree on that. There is some debate about 
whether it should be 4 years or 5 years, but we think that will 
achieve a better result. We think there is a number of other 
things that can be accomplished, in part through the 
transportation bill, things such as diesel retrofit, anti-
idling programs, things that we and DOT are both working on, 
that have very significant improvements, especially in heavily 
urbanized areas. And I will say California has been at the 
forefront of supporting some of those efforts. I think the 
State now----
    Ms. Solis. They are putting--yeah, in many cases----
    Mr. Holmstead. Yeah.
    Ms. Solis. [continuing] they are at the lead, yes.
    Mr. Holmstead. Yeah. And they are putting, like----
    Ms. Solis. Right.
    Mr. Holmstead. [continuing] as of this year, $140 million a 
year into these diesel retrofit programs that should make a 
significant difference. So we do recognize that there are 
areas, particularly heavily urbanized areas, where this is an 
important issue, and we are working not only at headquarters, 
but through our regional offices, to better address those.
    Ms. Solis. Have you done any outreach to underserved 
communities at all? Is that anywhere in a part of your design?
    Mr. Holmstead. Very much it is. We have a----
    Ms. Solis. Can you get us that information?
    Mr. Holmstead. Yes. I would be happy to.
    Ms. Solis. Okay. Because I want to go on to one more 
question. You actually wrote an editorial, in the Chicago 
Tribune, that the President's Clear Skies proposal has been 
endorsed by the National Governors Association, National 
Association of Counties and the U.S. Conference of Mayors and 
National Conference of Black Mayors. Is that, in fact, 
accurate? Did they, indeed, endorse this piece of legislation?
    Mr. Holmstead. Apparently, it was not accurate. I believed 
that it was. They--I think at least one of those groups said, 
is they endorsed the concept of a multi-pollutant bill that is 
very close to the Clear Skies Act, but they had made it clear 
that they don't specifically endorse one act or another. So, I 
have learned my lesson, and I will be more careful about----
    Ms. Solis. And that was an editorial that you wrote.
    Mr. Holmstead. That was an--it was a letter to the editor 
that I wrote.
    Ms. Solis. Right. So it was inaccurate.
    Mr. Holmstead. Yes.
    Ms. Solis. Okay. Thank you very much.
    Mr. Holmstead. That--only that part of it was inaccurate.
    Ms. Solis. Well, that is a large part. You are talking 
about major organizations.
    Mr. Holmstead. Yes.
    Ms. Solis. Thank you.
    Mr. Hall. The Chair recognizes the gentleman from 
Pennsylvania, Mr. Murphy, for 5 minutes.
    Mr. Murphy. Thank you, Mr. Chairman, and I also want to 
thank you for holding this hearing, and appreciate our panel 
being here.
    A couple of quick things. Mr. Holmstead, in your testimony, 
you mentioned several programs that will greatly reduce vehicle 
emissions, namely the two diesel rules, and EPA's Tier Two 
program, which enables more areas to meet Clean Air Act 
attainment requirements. Can you comment on how the impending 
promulgation of the Clean Air Interstate Rule next week will 
further help communities meet these attainment goals?
    Mr. Holmstead. The Clean Air Interstate Rule will actually 
be the single biggest rule that EPA has done to improve air 
quality since the 1970's, and throughout the eastern part of 
the United States, it will substantially improve air quality. 
Because largely, in that region of the country, we have a 
regional problem, and so, it will, in fact, be from a public 
health perspective----
    Mr. Murphy. What area of the country?
    Mr. Holmstead. Really, everywhere east of the Mississippi.
    Mr. Murphy. Okay.
    Mr. Holmstead. Pennsylvania in particular is one of the 
areas that is affected by this transport of air pollution from 
power plants, and this will reduce that very significantly, on 
sort of a gradual glide path over time, and the idea has been 
to do that while at the same time, preserving our energy 
diversity.
    Mr. Murphy. I know we have a problem like that in 
southwestern Pennsylvania, the Pittsburgh region, which 
receives daily windborne things from our good friends in Ohio 
and West Virginia, which we would rather they keep. But the 
second area here I wanted to ask about is, in the area of 
transportation air quality planners. As this goes through, can 
you help me understand this? When--since these groups have been 
meeting together, when it comes under transportation planning, 
and that has been a great benefit, does that include highway 
planning? Does it also include mass transit?
    Mr. Nottingham. Mr. Murphy, yes, both the transit and 
highway plans are merged together into a regional 
transportation plan.
    Mr. Murphy. Because I wanted to ask this. I know in 
Pennsylvania, our Governor is thinking of taking a substantial 
part of highway funds, and transferring it over to our mass 
transit agencies, SEPTA in Philadelphia, and the Port Authority 
in Pittsburgh. And I am curious if such things require any sort 
of review or planning, what impact that has on other areas of 
air quality. For example, if highways are not widened as they 
should, or ramps are not built as they should be, you end up 
with a lot of traffic sitting still, dumping a lot of 
pollutants into the air, even at the cost of just maintaining 
mass transit at status quo, with no expansions at all. Is there 
any requirements that such moves require any sort of review, or 
can that just be done?
    Mr. Nottingham. Yes, sir. We, the Federal Highway 
Administration and the Federal Transit Administration, will 
need to sign off on plan adjustments to reflect that type of, 
what we call, flexing of highway funds into transit. There are 
several ways, and Pennsylvania is very experienced at doing 
this, of flexing highway moneys into transit. It is not per se 
illegal or wrong at all. It cannot--those funds cannot go to 
operating expenses for transit. My understanding is many of the 
large transit agencies faced with cash-flow problems really 
need money in the operating side, so we do keep an eye to make 
sure that it is not going there. It is supposed to go to the 
capital side. But----
    Mr. Murphy. Capital side being what with mass transit? 
Purchase of bus?
    Mr. Nottingham. Purchase of--yes, sir. It would be rail or 
bus infrastructure, typically. Perhaps a facility--to a 
maintenance facility and that type of thing.
    Mr. Murphy. So in that, you will do a careful review of 
those things as the request comes through.
    Mr. Nottingham. We will, sir, and I would be happy to keep 
in close touch with your office. We have heard from a number of 
offices within the Pennsylvania delegation, and to all those 
inquiries, we have said we will closely coordinate with the 
delegation.
    Mr. Murphy. We are very concerned about that, because we 
want to make sure that mass transit stays strong, but I know in 
my district, unfortunately, I have a lot of interstate 
highways, and no one ever bothered to finish the ramps, so we 
have some ramps to nowhere, and some that are half done and 
three quarters done. It is--and I just see that as a lot of 
traffic sitting still, and not doing what the interstate is 
supposed to do. So, I would hope you review that very 
carefully, and I would appreciate any opportunity to discuss 
this in more detail with you at another time.
    Mr. Nottingham. Thank you, sir. We look forward to that.
    Mr. Murphy. Thank you. Thank you, Mr. Chairman.
    Mr. Hall. The Chair recognizes the gentleman from Texas, 
Mr. Gonzalez.
    Mr. Gonzalez. Thank you very much, Mr. Chairman, and first, 
I apologize to the Chairman and members of the committee, and 
of course, to the witnesses, because I have missed just about 
everything. And we try to do everything in the space of a day 
and a half here, and it is rather difficult. But my question 
would go to Mr. Holmstead. And I am from San Antonio. I 
represent half of San Antonio. We are currently under, I think, 
the designation of deferred nonattainment. I don't want to 
compare it to anything, but it is kind of a limbo, kind of a 
strange situation to be in. And of course, we are 150 miles 
from Laredo, right up IH35, and so now I am going to talk about 
cross-border trucking, and I don't know how familiar you are 
with what is going on there, but of course, there is a mandate 
to use low sulfur fuels, and that is for the American trucks. 
The problem is with the Mexican trucks coming across the 
border. I think there is a 3 week pilot project in Nogales, 
Arizona to study this. My concern, and I hope whatever 
information we glean from that can be used, but is there 
anything anticipated, or what are you all doing regarding other 
areas, especially in areas such as San Antonio, which I think 
would bear a tremendous amount of that type of traffic? And any 
update you may have, and what you know regarding the Nogales 
situation.
    Mr. Holmstead. I am glad that you asked that question, 
because we have been--it is an issue that we have been looking 
at very closely, and I must say, working also very closely with 
our counterparts in the Mexican side of the border. We believe 
that on about the same timeframe, that the low sulfur fuel is 
available in the U.S., it will also be made available in 
northern Mexico. I understand that there are conversations at 
senior levels within the Mexican government, as you know, Pamex 
would have to make the kinds of investments to provide that 
fuel. But our understanding is that that fuel will be made 
available, and that they are also looking at other strategies 
for reducing the impacts of border crossings there. You 
mentioned the project that we now have going on in Arizona, but 
it really will be applicable. We are looking at different 
technologies for actually measuring the pollution, strategies 
for reducing the idling time for trucks that may be idling at 
the border. At this point, based on the analysis that we have 
seen, we believe that San Antonio will be able to meet its 
obligations to come into attainment, consistent with this what 
we call early action compacts. And again, I--and I think all of 
us at EPA congratulate the local officials, who have really 
seized that issue as a way to take earlier action than they 
otherwise would have been required to do, so that they wouldn't 
have an air quality problem. And currently, they are on track, 
based on everything we see to ensure that they do meet 
attainment. At the same time, we are watching the issue of the 
cross-border traffic, to make sure that we have a good handle 
on that.
    Mr. Gonzalez. Is there any timeframe as far as any studies, 
anything that is going to be definitive as to what you 
discover? I know if it starts March 11, it is 3 weeks. After 
you study, I guess the measurement of the particles or whatever 
is involved, what are we looking at as far as getting that 
information back? Because my local area Council of Governments 
is obviously very concerned. NAFTA has been resisted as far as 
the cross-border trucking is concerned for many reasons, but 
now we find ourselves on the environmental end, which I don't 
think people anticipated unless it was staged, and that was 
going to be the last hurdle. But what are we looking at as far 
as something that is coming from you guys to say that it does 
not pose any real problem for cities like San Antonio?
    Mr. Holmstead. We--I may have to get back to you with a 
specific date. I know that that project does call for a report. 
It takes some time to finish the report after the 3 week 
testing period, and what I can do is make sure that we provide 
you with a date by which we can get that report to you and to 
the officials in San Antonio.
    Mr. Gonzalez. That would be great. Thank you very much, Mr. 
Holmstead, and I don't have any further questions. I yield 
back.
    Mr. Hall. A lot of times, we save the best for last. And I 
recognize Mr. Otter, the gentleman from Idaho.
    Mr. Otter. Well, thank you, Mr. Chairman. You can go ahead 
and talk as long as you want, if you are going to say things 
like that.
    Mr. Chairman, I too appreciate calling this hearing. I am 
reminded of the great promise when we passed ISTEA and then 
TEA-21. I was then Lieutenant Governor of Idaho, and we were 
going to not only spend all that money, which we successfully 
did, and continue to do, but we were also going to have 
tremendous streamlining. That was really, for us in the west, 
that are continually frustrated by either the Endangered 
Species Act or the EPA, or some other barrier to us being able 
to go forward with our projects, but you know, Mr. Nottingham, 
the last time we met, we met across the desk like this, only I 
was on the Transportation Committee, and as I recall, you were 
with the State of Virginia, I believe. How long ago was that? 
That was, what, 3 years ago, something like that?
    Mr. Nottingham. Three and a half years ago, sir.
    Mr. Otter. Yeah. I--and I remember one of the things that 
we were working on was streamlining. Well, you know, the bad 
news is we haven't accomplished anything. The good news is is 
that we are still talking about it. So hopefully we are going 
to get something done. But what I am concerned about is at the 
time, when you were with the State of Virginia, you were there 
with the--then the Governor of New Jersey, who had recently 
replaced, then, the Director of the Environmental Protection 
Agency. And there was a couple of other folks there who had 
legitimate complaints about the inability of the Endangered--or 
the Environmental Protection Agency to be able to move forward 
with any degree of certainly, or at least consideration of 
time. In fact, as I recall, the Governor of New Jersey said 
that they had a turnpike that they had been trying to put in 
for about 10 years, and still hadn't gotten all the permits, 
because of a three-toed frog or some blade of grass or 
something. That frustrated their construction of that, yet they 
were killing 32 people a year that they figured that they could 
stop.
    And the reason I remember that is because that is the same 
thing that is happening to me in Idaho. I have got one stretch 
in Idaho we call Blood Alley, because we kill 32 people a year 
up there on that. We have got $58 million sitting in the banks 
in Idaho, or at least we did at the time we had--you and I had 
our meeting--that were waiting for some bureaucrat somewhere to 
make a decision so that we could go forward with our 
construction project simply putting shoulders on the road, so 
that those cars, if they did run off the road, they at least 
had a chance of not wrecking and killing the people inside.
    Do you, in your new capacity, do you see any hope for us 
being able to move forward? I have voted against every 
transportation bill because of the lack of streamlining in the 
bill. And I am going to vote against this one, unless we get 
some streamlining in it. So--and it doesn't mean much, because 
everybody else has got a big Christmas tree in there, and they 
are going to vote for it anyway, with or without the 
streamlining. Do you see any hope that we are going to be able 
to go forward legislatively, and if not, why couldn't we go 
forward administratively with some of this streamlining?
    Mr. Nottingham. Thank you, Mr. Otter. I will say it is much 
easier commenting on the Federal Government from the State 
government perspective than it is from being within the Federal 
Government, but you raise some very serious and real issues. We 
have a strong, and this, today's hearing, touches on one very 
important, but fairly discrete sliver of the administration's 
overall environmental streamlining package that we have in our 
SAFETEA proposal. I will say, sadly, half or more has not made 
it into either of the bills that have been moving over the last 
couple of years, for a number of reasons, but we really do hear 
everywhere we go, across the States, and in MPOs and DOTs, and 
in communities, the biggest frustration with transportation is 
why does it take so long to deliver solutions? And people are 
okay with the reality that, on occasion, the answer may well be 
don't build that project, because it is not the right project 
at the right place, for environmental and other reasons. People 
can accept that, but they don't like to wait 10 years----
    Mr. Otter. Yeah.
    Mr. Nottingham. [continuing] to hear that, and all the 
money. So, we have a number of proposals, whether it is dealing 
with the National Environmental Policy Act, the Section 4(f), 
where occasionally we see the fact that a very minor, de 
minimis impact on a resource, a park, or a Federal land may 
trump all other environmental considerations, even if we can 
figure out a win-win----
    Mr. Otter. Yeah.
    Mr. Nottingham. [continuing] in other ways.
    Mr. Otter. Pardon me for interrupting you, but I got one 
more question, and I want to get into Mr. Holmstead before my 
time runs out. I thank you for your answer. Mr. Holmstead, if 
it had been a U.S. trucking company that was in violation of 
the clean air standard, you would have shut them down. Why 
can't we shut down the Mexican trucks coming into the United 
States?
    Mr. Holmstead. Well, the----
    Mr. Otter. Wouldn't you have shut them down?
    Mr. Holmstead. The answer is that the Mexican trucks who 
come to the country are not in violation of any standards.
    Mr. Otter. That isn't what Mr. Gonzales indicated.
    Mr. Holmstead. No. He suggested there was some concern 
about the emissions coming across the border, but that doesn't 
mean that they are violating any standards. GPA does not 
regulate vehicles that are produced and purchased and domiciled 
in another country. We are working with the Mexican government 
to harmonize their standards with ours, and we believe that 
they will do that, even though it may take a few years behind 
our schedule. But they are not in violation of any standards.
    Mr. Otter. I thank you, Mr. Chairman. I see my time is up.
    Mr. Hall. All right. I thank you, and I thank this panel 
very much. We will release you gentlemen now, and ask the 
second panel to come forward, if they would. And we thank you 
very, very much.
    Okay. We are honored to have the second panel before us 
today, and we have Mr. Michael Clifford, who is the Director of 
Systems Planning Applications, Department of Transportation 
Planning, also a member of the Transportation Research Board 
and the Institute of Transportation Engineers. We are very 
pleased to have him.
    We have Ms. Annette Liebe, who is Manager of the Oregon 
Department of Environmental Quality's Air Quality Planning 
section, and a former staff attorney at the Environmental 
Defense, Inc. fund.
    We also have Mr. Michael Replogle, Transportation Director 
for Environmental Defense, author of many, many publications in 
transportation policy and planning, and several books, and we 
are honored to have him.
    We have Brian Holmes, who is Executive Director of the 
Maryland Highway Contractors Association. He is an incorporator 
of the National Wetlands Coalition, Chairman of the Nationwide 
Public Projects Coalition.
    And we are honored to have you, and we recognize, at this 
time, Mr. Clifford, for 5 minutes. You have been patiently here 
most of the day, and you know the rules. Take as much time as 
you really have to have. Be as brief as you feel like you ought 
to be. Thank you.
    Mr. Clifford. Thank you very much, sir.
    I would like to submit my written testimony for the record.
    Mr. Hall. And without objection, you all may do that.

   STATEMENTS OF MICHAEL CLIFFORD, DIRECTOR, SYSTEMS PLANNING 
 APPLICATIONS, METROPOLITAN WASHINGTON COUNCIL OF GOVERNMENTS, 
     ON BEHALF OF THE ASSOCIATION OF METROPOLITAN PLANNING 
  ORGANIZATIONS; ANNETTE LIEBE, MANAGER, AIR QUALITY, OREGON 
 DEPARTMENT OF ENVIRONMENTAL QUALITY, AIR QUALITY DIVISION, ON 
     BEHALF OF STATE AND TERRITORIAL AIR POLLUTION PROGRAM 
 ADMINISTRATORS AND ASSOCIATION OF LOCAL AIR POLLUTION CONTROL 
     OFFICIALS; MICHAEL REPLOGLE, TRANSPORTATION DIRECTOR, 
 ENVIRONMENTAL DEFENSE; AND BRIAN HOLMES, EXECUTIVE DIRECTOR, 
MARYLAND HIGHWAY CONTRACTORS ASSOCIATION, ON BEHALF OF AMERICAN 
          ROAD AND TRANSPORTATION BUILDERS ASSOCIATION

    Mr. Clifford. Thanks. Good afternoon, Mr. Chairman and 
members of the subcommittee. I am Michael Clifford, Director of 
Systems Planning Applications for the National Capitol Region 
Transportation Planning Board. This Board is the metropolitan 
planning organization, or MPO, for the Washington, DC region. I 
am testifying today on behalf of the Association of 
Metropolitan Planning Organizations, AMPO, and in particular, 
as a member of AMPO's Air Quality workgroup.
    AMPO is a national association of MPOs, with membership 
from 200 metropolitan areas across the country, in air quality 
nonattainment and maintenance areas, MPOs have primary 
responsibility for ensuring that transportation plans and 
programs do their fair share to achieve and maintain the 
Federal air quality standards to protect the health of our 
citizens. Accordingly, we are pleased to have this opportunity 
to provide our perspective regarding the conformity provisions 
contained in H.R. 3, and I thank you for holding this hearing.
    I would like to begin by saying that we support the changes 
to the transportation conformity program, as proposed in 
Section 1824 of the bill. The changes would allow MPOs to 
better utilize resources, and therefore, to better conduct 
metropolitan planning, while continuing to work with air 
management agencies to improve air quality in these 
metropolitan areas.
    First, AMPO supports the proposal that conformity of 
transportation plans and programs be determined every 4 years. 
Because conformity must be determined before new programs or 
new plans are adopted, many areas, including here in the 
Washington, DC region, begin an update at about the same time 
as conformity requirements are met for the previous one. It is 
basically a year round, continuous conformity process.
    Second, AMPO supports the proposed change to provide a 2 
year timeframe for redetermining conformity once triggered by a 
State implementation plan, or a SIP. This represents an 
additional 6 months beyond the current 18 months requirement, 
thus allowing more time for MPOs to integrate conformity 
determinations with the proposed 4 year frequency cycle.
    Third, AMPO applauds the provisions in H.R. 3 that would 
change the time horizons for conformity determinations, so that 
air quality and transportation planning timeframes are more 
similar. Under the current requirements, conformity must be 
demonstrated for the last year of the transportation plan, 
which is at least 20 years from the date of analysis. In 
contrast, SIPs are focused on a shorter term attainment date, 
and do not have to forecast the emissions and trends to any 
time beyond that point. The provisions in H.R. 3 would tie 
these two planning horizons much more closely together.
    Fourth, I would like to emphasize AMPO's support for the 
transportation control measure, or TCM, substitution provisions 
in the bill. This would allow MPOs working with air quality 
agencies and EPA to revise or substitute new TCMs without a 
formal SIP revision.
    Last, I wish to express my support for the language that 
provides a formal definition of a conformity lapse. AMPO 
prefers this statutory definition, as it removes ambiguity that 
might lead to uneven application across the country.
    In conclusion, I believe these conformity provisions would 
more closely align the air quality and transportation planning 
processes, resulting in better transportation planning, fewer 
delays, and continued progress toward meeting our clean air 
goals.
    Thank you for your time, and the opportunity to speak 
before this subcommittee.
    [The prepared statement of Michael Clifford follows:]

  Prepared Statement of Michael Clifford, Director, Systems Planning 
 Applications, National Capital Region Transportation Planning Board, 
    Metropolitan Washington Council of Governments on Behalf of the 
           Association of Metropolitan Planning Organizations

    Good afternoon, Mr. Chairman and members of the Subcommittee. I am 
Michael Clifford, Director of Systems Planning Applications for the 
National Capital Region Transportation Planning Board, the Metropolitan 
Planning Organization (MPO) for the Washington, DC region. I am 
testifying today on behalf of the Association of Metropolitan Planning 
Organizations (AMPO), of which my MPO is an active member, and in 
particular as a member of AMPO's Air Quality Work Group.
    AMPO is a national association of MPOs with membership from 200 
metropolitan areas in the country. In nonattainment and maintenance 
areas, MPOs have primary responsibility for ensuring that 
transportation plans and programs do their fair share to achieve and 
maintain the federal air quality standards and protect the health of 
our citizens.
    Accordingly, we are pleased to have this opportunity to provide our 
perspective regarding the conformity provisions contained in H.R. 3, 
and I thank you and the members of the Subcommittee for holding this 
hearing.
    I would like to begin by saying that we support the changes to the 
transportation conformity program in the Clean Air Act as proposed in 
Section 1824 of H.R. 3. The changes would allow MPOs to better utilize 
resources and, therefore, to better conduct metropolitan planning, 
while continuing to work with air quality agencies to improve air 
quality in the nation's metropolitan areas.
    First, AMPO wholeheartedly supports the proposal that conformity of 
transportation plans and programs be determined every 4 years in 
nonattainment and maintenance areas. Currently, MPOs in nonattainment 
and maintenance areas must demonstrate conformity of plans every three 
years and transportation improvement programs (TIPs) every two years.
    Because conformity must be determined before new TIPs or new plans 
are adopted, many areas, including here in the Washington, DC region, 
begin a TIP update at about the same time as conformity requirements 
are met for the previous one. When you also consider that a conformity 
determination is often triggered by a TIP or Plan amendment, or a state 
implementation plan (SIP) trigger, the reality is that a continuous 
conformity process is in place in many metro areas. Many MPOs, 
especially high-growth areas like this region, report to AMPO that they 
budget for at least one conformity determination per year.
    For example, the North Central Texas Council of Governments 
(NCTCOG) in the Dallas-Fort Worth area performs one conformity analysis 
per year because of TxDOT's transportation plan and TIP modifications. 
The Southeastern Wisconsin Regional Planning Commission (SWRPC) in the 
Milwaukee area performed four conformity determinations in the 2003-
3004 timeframe.
    What can be expected to improve by this change to a four-year 
frequency schedule is the ability of planners to focus on issues just 
as important to metropolitan areas as air quality. It is not simply 
technical staff time that is required for a conformity determination. 
Conformity also requires numerous interagency consultation meetings, 
public hearings, and the full engagement of MPO board members. MPOs 
must choose where to focus their limited planning resources, and 
elected MPO board members must choose where to focus their available 
time.
    AMPO members believe that long- and short-term transportation 
planning will improve if metropolitan areas have more time to devote to 
it, rather than continuously determining conformity as many now do. A 
strengthened planning process could evolve when the concern about 
short-term deadlines for conformity is lessened.
    This has been borne out at AMPO meetings, where MPOs in areas 
without conformity requirements and areas where conformity is not a 
frequent activity report that they are freer, from a resource 
perspective, to undertake activities such as scenario planning, 
enhanced public participation, and other innovative measures, than are 
MPOs conducting conformity every year.
    The changes proposed in H.R. 3 will not negatively affect local air 
quality, because conformity must still be determined before an updated 
plan or TIP is adopted; air quality impacts will still be analyzed 
before any major changes to the transportation network are made, and a 
new SIP motor vehicle emissions budget would still trigger a conformity 
determination.
    Secondly, AMPO supports the proposed change to provide a two year 
timeframe for redetermining conformity after an adequacy finding or 
approval of a motor vehicle emissions budget in a state implementation 
plan. This represents an additional six months beyond the current 18 
month requirement, thus allowing more time for MPOs to integrate 
conformity determinations with the proposed four year frequency cycle I 
just addressed.
    SIP updates occur on a discretionary basis, rather than on a 
regular cycle as do transportation plans and TIPs. Because of that, 
conformity triggers are unpredictable. The current 18-month SIP trigger 
requirement has caused uncertainty in the transportation planning and 
TIP development processes. The additional six months in your bill would 
improve the process by removing some of the pressure to demonstrate 
conformity in a short amount of time. It would also provide a measure 
of certainty in the period after SIPs are due for the new 8-hour ozone 
and fine particulate standards, which will begin in 2007. These SIPs 
will establish the first motor vehicle emissions budgets under those 
new standards.
    Third, AMPO applauds the provisions in H.R. 3 that would change the 
time horizons for conformity determinations so that air quality and 
transportation planning timeframes are more similar. Under the current 
requirements, conformity must be demonstrated for the last year of the 
transportation plan, which is at least 20 years from the date of 
analysis. In contrast, SIPs are focused on a shorter-term attainment 
date and do not have to forecast emissions and trends to any time 
beyond that point.
    For many 8-hour ozone nonattainment areas, for example, the 
attainment year, and thus the last year of analysis in the SIP, will be 
2010. After an area reaches attainment, a maintenance plan must be 
developed and put in place that looks forward for a period of just 10 
years. In contrast, conformity determinations being done today forecast 
transportation-related emissions until at least 2025.
    Because transportation agencies need to demonstrate conformity at 
least 20 years out to the last year of the plan, transportation sources 
are constrained to the SIP's motor vehicle emissions budget from the 
attainment year to the last year of the transportation plan, unless the 
SIP specifically establishes emissions budgets for years after the 
attainment date. In practice, few SIPs do this.
    The mismatch in the timeframes for transportation and air quality 
plans has placed a burden on the transportation sector where there are 
very few emission controls remaining for implementation that will yield 
notable emissions reductions. This is especially true as vehicles 
continue to get cleaner due to the phase-in of federal emission and 
fuel standards. In 20 years, each mile of travel from a given vehicle 
will be cleaner, but this also means that each mile of travel reduced 
will result in a much smaller emission benefit. Longer-term emission 
problems will require solutions from every emission sector, and the way 
to ensure they are all looked at is to harmonize the planning 
timeframes so that all sources of emissions are on the table, not just 
the transportation sector.
    The provisions in H.R. 3 would tie these two planning horizons much 
more closely together. The conformity determination would look forward 
at least 10 years from the first year of the TIP or plan timeframe, and 
even further if a regionally significant project will not be completed 
until after that time. These provisions would still ensure that 
transportation investments do not cause or contribute to air quality 
violations. And because the proposal calls for conducting a regional 
emissions analysis for any years of the transportation plan that extend 
beyond this timeframe, planners will have advance notice if future 
transportation demand results in emissions that are likely to worsen 
air quality.
    Fourth, I would like to emphasize AMPO's support for the 
transportation control measure (TCM) substitution provisions in the 
bill. The conformity regulations require that MPOs implement in a 
timely manner any TCMs identified in the SIP. If a particular TCM fails 
to advance on schedule or perform as intended, revising, adding, or 
substituting a new TCM currently requires a formal SIP revision, with 
its attendant time requirements of development and EPA approval. This 
time period would typically be a minimum of 12 months.
    AMPO supports the language in the Bill that would allow MPOs, 
working with air quality agencies and EPA, to revise or substitute new 
TCMs with equivalent emission reductions, and timeframes for those 
reductions, without a formal SIP revision.
    Our desire for this change stems from the fact that transportation 
agencies are extremely reluctant to use TCMs now. This is because the 
success of many TCMs is dependent upon changes in human behavior and 
other variables beyond the MPO's influence; for other TCMs, funding 
that allows timely implementation may fail to materialize. If the 
emission reductions fail to accrue as predicted, the MPO is liable.
    For example, the Metropolitan Transportation Commission (MTC) in 
the San Francisco Bay Area was sued in 2001 for a TCM that was included 
in its 1982 SIP, but not amended or revised to reflect current 
conditions. The court held that, even though MTC was not taking 
emission credit for the TCM, it is obligated to implement the measure 
regardless of changed circumstances. The suit was eventually concluded 
more in favor of MTC, but the resultant delays impeded both the 
transportation planning and air quality planning processes. Other MPOs 
are understandably reluctant to agree to TCMs for this very reason.
    The Bill would provide for a more efficient and timely TCM 
substitution process, which would provide MPOs with more assurances 
that TCMs are a viable emission reduction strategy to use in the SIP.
    Lastly, I wish to express my support for the language that provides 
a formal definition of a conformity lapse. AMPO prefers this statutory 
definition as it removes ambiguity that might leave discretion to EPA 
or the courts, and uneven application across the country.
    In conclusion, I believe these conformity provisions would more 
closely align the air quality and transportation planning processes, 
resulting in better transportation planning, fewer delays, and 
continued progress toward meeting our clean air goals.
    Thank you for your time and the opportunity to speak before this 
Subcommittee.

    Mr. Otter [presiding]. Thank you, Mr. Clifford. Ms. Liebe.

                   STATEMENT OF ANNETTE LIEBE

    Ms. Liebe. Good afternoon, Mr. Chairman, and members of the 
subcommittee. My name is Annette Liebe, and I am manager of the 
Air Quality Planning section for the Oregon Department of 
Environmental Quality. I am here today testifying on behalf of 
STAPPA and ALAPCO, the two national associations of air quality 
officials in 53 States and territories, and over 165 major 
metropolitan areas.
    We are here today because transportation remains a dominant 
source of air pollution across the Nation. These emissions 
contribute to premature mortality, reduced lung function, 
cancer, and other serious health and environmental problems. 
Although we continue to make great progress in reducing 
emissions from mobile sources, it is clear that benefits from 
cleaner cars and trucks cannot keep pace with trends of 
steadily increasing vehicle miles traveled.
    Our associations are acutely aware of the key role that 
transportation plays in our Nation's economy. We also believe 
that transportation conformity and the congestion mitigation 
air quality improvement programs are critically important to 
the goal of achieving full integration of environmental and 
transportation decisionmaking. For this reason, our 
associations have adopted a set of CMAC and transportation 
conformity principles for the reauthorization of transportation 
legislation. A copy of our principles is attached to our 
written statement.
    With respect to transportation conformity, our associations 
strongly believe that the purpose of the program, which is to 
ensure that the emissions from transportation plans, programs, 
and projects stay within the capacity of an airshed, is 
absolutely crucial to achieving clean air goals. Unless this 
purpose is achieved, it will be necessary to call upon other 
source sectors, potentially including small businesses, to 
further reduce emissions.
    We believe conformity is working well, and endorse 
preserving the major conformity requirements and schedules that 
are now in place. Accordingly, we are troubled that the 
proposed changes to transportation conformity in recent Senate 
and House legislation, including H.R. 3, could seriously impair 
the ability of States and localities to protect public health 
and welfare. We believe, however, that the air quality 
provisions of the House bill are preferable to those in the 
Senate. We are most concerned with proposals to shorten the 
planning horizon for the transportation plan from 20 years to 
10 years. In planning for clean air under the Clean Air Act, we 
must not only chart a course for achieving healthful air 
quality, but also for maintaining it over the long-term, 20 
years into the future once we meet the standards. Major 
transportation investments can have huge air quality impacts, 
much of which may not occur for several decades. These 
investments can also significantly promote sprawl and growth. 
Therefore, long term planning over at least a 20-year period, 
is necessary to ensuring that air quality impacts are 
identified and appropriate adjustments are made early.
    While both the Senate and House legislation seek to shorten 
the time period, we prefer the language in H.R. 3, since it 
would require concurrence by the air pollution agency before 
the time period is reduced, as well as an emissions analysis to 
track air quality impacts. We believe that as it is currently 
structured, conformity provides ample flexibility to States to 
accommodate individual needs and circumstances, while 
maintaining the integrity of the program. Rather than statutory 
changes, we believe that State and local officials should 
retain the flexibility to work through a robust interagency 
consultation process to resolve issues addressing their unique 
circumstances.
    We strongly support the congestion mitigation air quality 
improvement program, and believe that it also can be 
strengthened in several ways. Since CMAC was originally 
established, our understanding of transportation-related 
emissions and their impact on public health and welfare have 
expanded significantly. EPA has adopted new health-based 
standards for fine particulate matter and ozone, and we are 
beginning to develop air quality plans to meet these standards. 
Accordingly, we urge that the areas eligible to receive CMAC 
funding be expanded, consistent with the recommendations 
included in our written testimony.
    For example, areas like Portland, Oregon, that are close to 
violating the standards, should be eligible to receive CMAC 
funds in order to avoid becoming a nonattainment area. We also 
support a substantially increased Federal commitment of 
resources to the CMAC program to reflect the true and very 
significant impact of transportation-related emissions on 
public health and welfare. This increase should be no less 
proportionately than that to be provided for highway 
investments.
    Finally, we recommend that concurrence of State and local 
air quality agencies be required for CMAC project selection 
through a well-defined consultation process. In Oregon, the 
Department of Environmental Quality has participated in 
selecting CMAC projects through the ongoing interagency 
consultation process that we established under our conformity 
rule.
    Thank you for the opportunity to testify, and I am 
available to answer any questions.
    [The prepared statement of Annette Liebe follows:]

  Prepared Statement of Annette Liebe, Manager, Air Quality Planning, 
 Oregon Department of Environmental Quality on Behalf of the State and 
Territorial Air Pollution Program Administrators and the Association of 
                 Local Air Pollution Control Officials

    Good afternoon, Mr. Chairman and members of the Subcommittee. I am 
Annette Liebe, Manager of the Air Quality Planning Section of the 
Oregon Department of Environmental Quality. I am testifying today on 
behalf of STAPPA--the State and Territorial Air Pollution Program 
Administrators--and ALAPCO--the Association of Local Air Pollution 
Control Officials--the two national associations of air quality 
officials in 53 states and territories and over 165 major metropolitan 
areas. The members of STAPPA and ALAPCO have primary responsibility 
under the Clean Air Act for implementing our nation's air pollution 
control laws and regulations and, moreover, for achieving and 
sustaining clean, healthful air for our citizens. Accordingly, we are 
pleased to have this opportunity to provide our perspectives on (1) the 
proposed changes to the Clean Air Act's transportation conformity 
provisions contained in H.R. 3, the ``Transportation Equity Act: A 
Legacy for Users,'' and (2) the Congestion Mitigation and Air Quality 
Improvement (CMAQ) program under this legislation.
    STAPPA and ALAPCO are acutely aware of the key role that 
transportation plays in our nation's economy. We endorse the 
fundamental principle that transportation and environmental goals need 
not be at odds with one another, but, rather, that our transportation 
system can flourish and our economy can grow without jeopardizing the 
health of our citizens and the environment. In fact, our transportation 
choices can make important contributions to health and environmental 
improvements.
    Today, however, transportation remains a dominant source of air 
pollution across the country, contributing substantially to unhealthful 
levels of ozone, particulate matter (PM) and carbon monoxide (CO). In 
particular, according to the U.S. Environmental Protection Agency 
(EPA), these sources are responsible for over 40 percent of volatile 
organic compounds and more than 50 percent of nitrogen oxides--both of 
which are ozone precursors--and about a third of fine particulate 
matter emissions and 70 percent of CO emissions. Transportation sources 
are also very significant contributors of greenhouse gases--including 
over a third of carbon dioxide emissions--and toxic air pollutants, and 
play a role in the formation of regional haze. Although EPA's standards 
for light-duty and heavy-duty vehicles will contribute to making great 
progress in reducing emissions from mobile sources, it is clear that 
the benefits of these technological advances can not keep pace with 
current and foreseeable trends of steadily increasing vehicle miles 
traveled (VMT).
    New research linking vehicle emissions to serious and adverse 
health effects on children and other sensitive populations further 
supports the need for effective transportation conformity and CMAQ 
programs. This research shows that:

1) children attending schools located adjacent to freeways suffer an 
        increased prevalence of asthma and bronchitis;
2) children exposed to higher levels of motor vehicle-related 
        pollutants experience a permanent, life-long reduction in lung 
        function compared to children living in cleaner air; and
3) children who die of cancer before age 16 were far more likely to 
        have been exposed to vehicle pollution as a fetus because the 
        mother resided within 1 kilometer of a highway during and after 
        pregnancy.
    STAPPA and ALAPCO firmly believe that the transportation conformity 
and CMAQ programs are critically important to achieving full 
integration of our environmental and transportation decision-making 
processes and ensuring that transportation choices do not undermine our 
efforts to sustain clean, healthful air throughout the country. Air 
pollution control is a zero-sum calculation. To the extent we are not 
able to achieve the appropriate cost-effective emissions reductions 
from transportation sources, we will have to resort to more costly 
alternative control measures from some other industrial sources, 
including small businesses.
    Our associations have adopted a set of transportation conformity 
and CMAQ principles for the reauthorization of transportation 
legislation and prepared a comparison of the air quality provisions of 
proposed House and Senate legislation from last Congress. Both are 
attached to this testimony.

Transportation Conformity
    STAPPA and ALAPCO remain firmly committed to the purpose of 
transportation conformity, which is to ensure that shorter-term 
Transportation Improvement Programs (TIPs) and long-term Regional 
Transportation Plans (RTPs) contribute to the timely attainment and 
maintenance of healthful air quality and achieve the motor vehicle 
emissions budgets contained in State Implementation Plans (SIP) for air 
quality. We believe that conformity can continue to be implemented as 
currently written and intended.
    In numerous areas, the conformity process has facilitated good 
working relationships between state and local air quality and 
transportation officials by requiring consultation and coordination 
among agencies. The process has made air quality and transportation 
planners more aware of each others' objectives; resulted in the 
inclusion in TIPs and RTPs of additional projects that benefit air 
quality; and opened up the SIP development process to more input from 
the transportation community. Clearly, this has been the case in 
Oregon. STAPPA and ALAPCO believe that we must continue to strive for 
such successes across the country. Moreover, our associations strongly 
believe that the purpose of conformity--to ensure that transportation 
plans and programs support healthful air quality--is fundamental to the 
goal of achieving clean air, especially given the continued increase in 
motor vehicle use and transportation's contribution to poor air quality 
in many areas throughout the country.
    STAPPA and ALAPCO believe that the Clean Air Act's transportation 
conformity program is working and strongly endorse preserving the major 
requirements and schedules that are now in place. However, we are 
troubled that proposed changes to transportation conformity in recent 
Senate and House legislation, including H.R. 3, could seriously weaken 
the program and undermine the ability of states and localities to 
attain and maintain national ambient air quality standards. We believe, 
however, the most problematic provisions are included in the Senate 
bill, and strongly urge the House to reject them. Our major concerns 
with the proposed bills follow.
    First, our associations are extremely concerned that both Senate 
and House proposals seek to shorten the period of emissions analysis 
used to determine whether a long-range plan conforms to the SIP. Under 
each proposal, the plan's conformity determination would be based on a 
10-year horizon, rather than the current 20-year horizon. We strongly 
oppose such a change, but believe the House provision is less 
problematic to the conformity program than the Senate proposal.
    Long-term planning, over a 20-year horizon, is imperative to 
ensuring that the potential growth in mobile source emissions is 
identified, the impact on air quality is assessed and, where necessary, 
adjustments are made. In planning for clean air, state and local air 
agencies must not only chart a course for achieving healthful air 
quality, but also for maintaining it over the long term. Shortening the 
timeframe over which a transportation plan is required to demonstrate 
conformity is extremely troubling to us because it takes only the first 
part of our responsibility--attaining an air quality standard--into 
account, and disregards our responsibility for maintaining clean air 
over the subsequent 20 years.
    Major transportation projects can have huge air quality impacts, 
much of which may not occur during the first ten years when the new 
highway has not yet been filled to capacity. The greatest emissions 
impact of a new highway often occurs after the first ten years when the 
resulting development corridor is fully developed and the facility is 
again jammed with stop-and-go traffic. If we eliminate the 
responsibility to account for the impact of transportation investments 
beyond 10 years, then we lose the opportunity to hold these projects 
accountable for their long-term contribution to air pollution, and 
severely compromise our ability to adequately protect public health.
    Accordingly, STAPPA and ALAPCO strongly oppose the Senate 
provisions mandating a shorter planning horizon of 10 years, with no 
flexibility to account for local needs. While we are also disappointed 
that the House bill allows the conformity decision to be based on 10 
years, we still find it preferable, since it does not mandate a shorter 
planning horizon, but instead allows conformity to be based on 
emissions during the first ten years only with the agreement of the air 
pollution control agency. We also support the provision in the House 
bill requiring an emissions analysis for the additional years in the 
transportation plan even if the emissions in the out-years are not used 
for conformity purposes. This will alert the transportation and air 
quality planners to possible future air quality problems and provide an 
opportunity to address them during the period of the next update of a 
transportation plan before the future conformity violations cause a 
conformity lapse.
    Second, STAPPA and ALAPCO are also concerned with proposals 
reducing the frequency of conformity determinations for transportation 
plans from every three years to every four years, and eliminating the 
requirement for conformity determinations on the TIP, currently 
conducted every two years. Our associations oppose these changes, but 
believe they will have much less impact on the conformity process if 
the House language regarding long-term emissions analyses is adopted.
    Third, we believe that regular and timely analyses must be 
maintained to demonstrate compliance of financially constrained TIPs 
and RTPs with SIP motor vehicle emission budgets. Such continued 
frequency will ensure that sound data are generated and allow for the 
timely adjustment of motor vehicle emissions estimates. The longer the 
delay between emissions estimates, the longer emissions can grow in 
excess of the emissions budgets planned for in the SIP to attain and 
maintain the standards. If a violation of SIP budgets grows too large 
before it is discovered, it not only will prevent attainment of the 
health-based air quality standards, but may also become too difficult 
to correct through the transportation process within a reasonable 
period of time. This may result in emission increases that cannot be 
offset by transportation control strategies in time to meet the 
statutory deadlines for reasonable progress or attainment of the 
health-based standards. In those situations, the failure of conformity 
will likely force additional emissions reductions from stationary 
sources to achieve the overall reductions required for attainment.
    In recognition of the desire of transportation officials to improve 
the alignment of conformity timelines, STAPPA and ALAPCO recommend that 
the frequency of the conformity analysis on the TIP and the RTP be 
synchronized. The House bill requires synchronized determinations. The 
Senate bill does not.
    Fourth, we are concerned with provisions of the Senate and House 
bills allowing projects to be funded during a conformity lapse. The 
current conformity program does not restrict project funding during a 
lapse for projects that reduce emissions or do not increase emissions. 
Both the Senate and House bills expand these exemptions considerably. 
The Senate bill allows all but the largest ``regionally significant 
projects'' to continue to be funded for an indefinite period during a 
conformity lapse, and does not require that emissions be reduced to 
comply with the SIP. The House bill allows all projects, including 
``regionally significant projects,'' to continue to be funded during a 
conformity lapse, but limits the time period when projects may be 
funded to 12 months, and requires transportation agencies to revise 
their plans and take corrective actions to conform to the SIP budgets.
    STAPPA and ALAPCO oppose expanding the current list of exemptions 
to include projects that increase emissions. We believe this will 
exacerbate the exceedance of SIP emissions budgets and make corrective 
action more difficult and expensive. However, of the two proposals, we 
prefer the provision in H.R. 3, since it limits the time period and 
requires corrective actions.
    Fifth, STAPPA and ALAPCO strongly oppose the provision in the 
Senate bill that eliminates emissions budgets in currently approved 
ozone SIPs until new plans for the 8-hour ozone standard are submitted. 
EPA has already rejected this concept, concluding that if the current 
SIP budgets were set aside--as the Senate bill allows--ozone-forming 
emissions from motor vehicles in major metropolitan areas could 
increase significantly. According to EPA in its latest conformity 
rulemaking (69 Fed Reg, pp 40026-27, July 1, 2004), vehicle emissions:
        could increase anywhere from 10 to 50% of the 1-hour budgets, 
        and because motor vehicles represent a quarter to a half of all 
        emissions in most metropolitan areas, the total emissions in an 
        airshed could increase to the point where areas cannot attain 
        the 8-hour standard.
    We are concerned that this provision could seriously impair the 
ability of states and localities to attain and maintain the 8-hour 
ozone standard. Consequently, we support the House on this issue and 
strongly recommend that you reject the Senate language.
    Finally, we are concerned that the Senate and House bills contain 
language that conflicts with the Clean Air Act by potentially allowing 
non-conforming projects in PM10 and PM2.5 
nonattainment areas to be included in the TIP. The Clean Air Act 
requires that no project cause or contribute to a violation of national 
ambient air quality standards. The Act also requires that projects come 
from transportation plans and improvement programs that do not cause 
violations of the NAAQS. But the language in both bills would allow a 
transportation improvement program (TIP) to be approved even if it 
includes projects that cause violations of the PM10 and 
PM2.5 standards. It appears that this language has simply 
been carried forward from the 1998 law without addressing the conflict 
with the Clean Air Act. To avoid confusion and possibly conflicting 
interpretations of the provisions with the Clean Air Act, the language 
needs to be removed from the bills.
    As we mentioned, our associations believe transportation conformity 
is working. We believe it is well worth the effort it requires, given 
the benefits that will follow in terms of public health and 
implementation of smart-growth policies. In addition, we believe that 
conformity as it is currently structured provides ample flexibility to 
states and localities to accommodate individual needs and 
circumstances, while maintaining the integrity of the program. Rather 
than statutory changes to such elements as planning horizons, analysis 
frequency and grace periods, STAPPA and ALAPCO believe that state and 
local officials should retain the flexibility to resolve issues in the 
way that works best at the state and local level. This may involve 
revising the emissions budget in a SIP in one area, adding 
transportation control measures to a TIP in another area or extending 
the air quality planning horizon in yet another area. In each case, the 
state and local officials can develop the best solutions for their 
jurisdictions through a strengthened interagency consultation process.
Congestion Mitigation and Air Quality Improvement (CMAQ) Program
    STAPPA and ALAPCO strongly support the CMAQ program, which provides 
a discrete source of funding set aside for transportation projects that 
meet air quality objectives and for projects that result in sustainable 
air quality improvement. The CMAQ program appropriately reinforces the 
interrelationship between the transportation and air quality planning 
processes by specifically recognizing and funding projects designed to 
reduce the transportation sector's impact on air quality. Over the past 
10 years, states and localities have demonstrated that CMAQ can play a 
significant role in addressing transportation-related air quality 
problems. We believe, however, that this important program can be 
strengthened in several ways.
    First, since CMAQ was originally established, understanding of the 
scope and magnitude of transportation-related emissions and their 
impact on air quality has expanded significantly. EPA has adopted new, 
health-based National Ambient Air Quality Standards (NAAQS) for fine 
particulate matter and 8-hour ozone, and states are now beginning to 
prepare State Implementation Plans to demonstrate attainment of these 
standards. A National-Scale Air Toxics Assessment concluded that motor 
vehicles are the largest source of hazardous air pollutants nationwide, 
producing nearly 1.4 million tons of air toxics each year.
    While STAPPA and ALAPCO believe CMAQ funds should be apportioned 
based on the severity of an area's air quality problem, we urge that 
the areas eligible to receive CMAQ funding be expanded from 1-hour 
ozone, PM10 and CO nonattainment and maintenance areas, to 
also include PM2.5 and 8-hour ozone nonattainment and 
maintenance areas; areas nearing nonattainment; areas whose 
transportation-related emissions have an impact on a nonattainment 
area; and areas that experience other air quality problems as a result 
of transportation-related emissions, including, but not limited to, 
hazardous air pollutants from mobile sources.
    Accordingly, we believe that the historic allocation of CMAQ funds 
is inadequate. We strongly urge a substantially increased federal 
commitment of resources to the CMAQ program, to reflect the true and 
very significant impact of transportation-related emissions on air 
quality. This increase should be no less, proportionately, than that to 
be provided for other highway investments.
    In Oregon, CMAQ funds have been used to implement transportation 
control measure commitments in numerous maintenance plans. Some 
examples include expansion of transit service and programs, support of 
transit-oriented development, implementation of commuter trip-reduction 
programs, expansion of bicycle and pedestrian facilities and the 
purchase of advanced equipment to remove winter road sand that could 
contribute to PM10. In order to meet the challenges of 
implementing new standards to protect public health, we believe funding 
should increase for these types of projects and be available for areas 
committed to making progress to maintain healthful air.
    With respect to project eligibility, we urge that greater emphasis 
be placed on projects that will result in direct, timely and sustained 
air quality benefits. Certain types of congestion mitigation projects, 
such as road and bridge construction and expansion, may have the long-
term effect of promoting growth in VMT and urban sprawl, and of 
creating new congested corridors. We also recommend that to qualify for 
CMAQ funds, a project should be required to demonstrate that a minimum 
air quality benefit threshold is met or exceeded, based on established 
criteria and supporting data, and with the concurrence of the 
appropriate state and/or local air quality agency. This concurrence 
should occur through a well-defined consultation and concurrence 
process. In Oregon, the Department of Environmental Quality has 
participated in selecting CMAQ projects through the ongoing interagency 
consultation process that we established under our conformity rules.

Conclusion
    In its policy on transportation and air quality, the National 
Governors' Association states:
          With the enactment of the Clean Air Act Amendments of 1990, 
        the Intermodal Surface Transportation Efficiency Act of 1991, 
        and the Transportation Equity Act for the 21st Century, 
        Congress took steps to advance two essential national goals: 
        achieving air quality standards and providing for the 
        transportation needs of the American people. The Governors 
        strongly support the attainment of both of these goals and 
        believe that neither should be sacrificed in pursuit of the 
        other.
    STAPPA and ALAPCO embrace this perspective, as well. We look 
forward to working with members of this Subcommittee as discussions 
regarding transportation conformity and CMAQ continue.
    Thank you for this opportunity to testify.
                                 ______
                                 
Comparison of Air Quality Provisions of S. 1072, the Safe, Accountable, 
Flexible and Efficient Transportation Equity Act of 2004 (February 26, 
                                 2004)
                                  and
H.R. 3550, the Transportation Equity Act: A Legacy for Users (April 2, 
                                 2004)
      Prepared by the State and Territorial Air Pollution Program 
   Administrators and the Association of Local Air Pollution Control 
                               Officials
                              May 10, 2004

    Earlier this year, the U.S. Senate and the U.S. House of 
Representatives passed comprehensive transportation legislation, 
including authorization, for six years, of funds for federal 
transportation programs. Both bills--S. 1072, the Safe, Accountable, 
Flexible and Efficient Transportation Equity Act of 2004, and H.R. 
3550, the Transportation Equity Act: A Legacy for Users--include 
provisions that will amend the Clean Air Act as well as transportation 
law. In particular, the bills substantially change current law and/or 
requirements for transportation conformity, the Congestion Mitigation 
and Air Quality Improvement (CMAQ) program and other programs with air 
quality impacts.
    Below is a comparison of key air-related provisions of the Senate 
and House bills. For each issue noted, STAPPA and ALAPCO have 
identified their preference between the two bills.
Transportation Conformity
    Over the past decade or so since it has been implemented under the 
Clean Air Act (CAA), transportation conformity has proven to be a key 
tool for ensuring that our transportation choices contribute to--rather 
than undermine--progress toward achievement of healthful air quality. 
Further, as our nation prepares to implement new, health-based National 
Ambient Air Quality Standards (NAAQS) for 8-hour ozone and fine 
particulate matter (PM2.5), the critical need to continue 
implementing conformity as it is currently structured is clear.
    Both the Senate and House bills contain provisions that would 
severely weaken transportation conformity. Though the conformity 
provisions of the two bills differ, both would substantially reduce the 
transportation sector's accountability for the pollution it creates, 
threatening the failure of state and local air pollution clean-up plans 
and unfairly forcing states and localities to respond by placing a 
greater pollution clean-up burden on other sectors of the economy. 
Because transportation emissions account for half of all ozone 
precursors and a large portion of PM2.5 in most metropolitan 
areas, reducing the accountability of the transportation sector will 
seriously jeopardize the ability of states and localities to achieve 
and sustain clean air and public health goals. Given these significant 
adverse impacts, STAPPA and ALAPCO would strongly prefer that the final 
transportation bill that emerges from Congress not include any changes 
to the transportation conformity program and, instead, preserve the 
conformity program requirements and schedules currently in place. For 
this reason, the associations generally prefer the House bill, which 
shows greater restraint in relaxing the conformity program.

Conformity Horizon for Transportation Plans
    Senate--S. 1072, sec. 1615(b)(4) (pp. 272-273), reduces from 20 
years the planning horizon over which conformity must be demonstrated 
by defining a transportation plan as limited to the longer of 1) the 
first 10 years of the transportation plan adopted pursuant to 23 USC  
134(g), 2) the latest date for which the State Implementation Plan 
(SIP) establishes an emissions budget or 3) the year after the 
completion date of a regionally significant project that requires 
approval before the ``subsequent conformity determination.''
    House--H.R. 3550, sec. 1824(c) (pp. 374-376), continues to require 
that conformity be demonstrated through the last year of the 
transportation plan (i.e., for 20 years) except in areas where the 
metropolitan planning organization (MPO) and air pollution control 
agency agree to reduce the horizon. In such cases, the bill does not 
shorten the planning horizon by defining the term of the transportation 
plan, but instead requires a conformity determination for the ``period 
ending'' in the later of 1) the tenth year of the transportation plan, 
2) the attainment date or 3) the year following completion of a project 
that will be programmed in the Transportation Improvement Program (TIP) 
or receive approval before the subsequent conformity determination. The 
requirement that the conformity determination must address the period 
prior to the horizon date requires a showing that the area will conform 
during the period in addition to a projection of conformity for the 
latest horizon date. H.R. 3550 also requires an emissions analysis for 
the years of the transportation plan that extend beyond the horizon 
date used for the conformity demonstration. S. 1072 does not include a 
counterpart provision.
    STAPPA/ALAPCO Recommendation--STAPPA and ALAPCO's strong preference 
is that the existing 20-year conformity horizon be retained; neither 
bill provides for this. Of the two bills, we believe the House bill--
which allows for a shorter horizon only with the agreement of the air 
pollution control agency, and requires an emissions analysis for the 
additional years in the transportation plan beyond the 10-year horizon 
date--is preferable.

Transition to New Air Quality Standards
    Senate--S. 1072, sec. 1616 (pp. 276-278), amends CAA requirements 
and EPA regulations that govern the methods for determining conformity 
before an emissions budget is available to implement a new NAAQS. These 
changes would allow an 8-hour ozone nonattainment area that currently 
has a 1-hour ozone budget to stop conforming to that budget and, 
instead, authorize EPA to establish ``other'' tests to determine 
conformity.
    House--H.R. 3550 has no counterpart provisions.
    STAPPA/ALAPCO Recommendation--In November 2003, EPA proposed a 
change to its transportation conformity regulations to create an option 
similar to that in the Senate bill, to allow areas not to comply with 
emissions budgets in approved SIPs during the multi-year hiatus before 
new emissions budgets are adopted to implement the 8-hour ozone NAAQS. 
STAPPA and ALAPCO opposed this proposed regulatory change in December 
22, 2003 comments to EPA, explaining that removal of existing budgets 
will allow much higher emissions during the interim period prior to the 
development of new ozone SIPs, and that substantial deterioration in 
air quality will occur during that period. STAPPA and ALAPCO continue 
to hold this view and, therefore, believe the House bill is preferable. 
If, however, the Senate provision is used as the basis for the 
conference bill, it should be revised to maintain the use of currently 
approved emissions budgets by allowing EPA to prescribe an alternative 
conformity test only if the state has not already adopted an emissions 
budget for ozone. For example, at the beginning of sec. 1616(3)(A)(ii) 
(p. 277), add ``if no such budget, as described in 3(A)(i) above, has 
been found adequate or has been approved,''.

Frequency of Transportation Plan and TIP Conformity Determinations
    Senate--S. 1072, sec. 1615(a) (pp. 268-269), reduces the frequency 
of conformity determinations for the TIP and Regional Transportation 
Plan (RTP) in nonattainment and maintenance areas from at least every 
three years (under current law) to every four years, unless the MPO 
elects to redetermine conformity more frequently or a conformity 
``trigger'' is pulled. The Senate bill also reduces the frequency of 
updates to the TIP--from every two years to every four years, unless 
the MPO elects to update more frequently--and the RTP--from every three 
years to every four years in nonattainment and maintenance areas and to 
every five years in attainment areas that have never been designated 
nonattainment, unless the MPO elects to update more frequently; the TIP 
and the RTP are not required to be updated on the same schedule.
    House--H.R. 3550, sec. 1824(b) (pp. 373-374), reduces the frequency 
of conformity determinations for the TIP and RTP in nonattainment and 
maintenance areas from at least every three years (under current law) 
to every four years, unless the MPO elects to redetermine conformity 
more frequently or a conformity ``trigger'' is pulled. Under secs. 
5213(g) (p. 831) and 5213(h) (p. 836), the bill also reduces the 
frequency of updates to the TIP and RTP to every four years in all 
cases, unless the MPO elects to update more frequently.
    STAPPA/ALAPCO Recommendation--STAPPA and ALAPCO have suggested 
synchronizing conformity determinations on and updates to the TIP and 
RTP, to occur at least every three years; both bills, however, go 
further in reducing frequency. Of the two bills, we believe the House 
bill is preferable.

Triggers for Conformity Determinations
    Senate--S. 1072, sec. 1615(b) (pp. 270-272), revises the 
``triggers'' for redetermining conformity to allow for less frequent 
conformity determinations. The current trigger of SIP submittal is 
replaced under subparagraph (2)(E)(i) with EPA's adequacy determination 
of a submitted budget, which typically comes four to five months after 
SIP submittal. Under subparagraph (2)(E)(ii), the current trigger of 
SIP approval if a SIP adds, deletes or changes TCMs, is replaced with 
SIP approval if the budget has not yet been used for a conformity 
determination. The bill also extends the grace period after which MPOs 
must conduct a triggered conformity redetermination for the TIP and RTP 
from not later than 18 months after a trigger to not later than two 
years after.
    House--H.R. 3550 contains counterpart provisions in sec. 1824(a) 
(pp. 372-373), except that the second trigger is based on EPA approval 
or promulgation of a SIP that establishes a motor vehicle emissions 
budget (MVEB) where none previously existed or that ``significantly 
varies'' from a budget that had taken effect as a result of an adequacy 
determination or a prior SIP approval.
    STAPPA/ALAPCO Recommendation--STAPPA and ALAPCO have advocated for 
retention of the existing triggers and the 18-month grace period; both 
bills deviate from this. The difference between the two bills, with 
respect to the second trigger, is that the Senate bill would allow the 
two-year grace period clock to restart before the conformity 
determination is conducted, while the House bill would only restart the 
two-year clock if the budget in the approved SIP differs from the prior 
budget. Of the two bills, we believe the House bill is preferable.

Conformity Lapse Grace Period
    House--H.R. 3550, sec. 1824(e) (pp. 378-379), enacts a 12-month 
grace period following a conformity failure, during which an area can 
amend its transportation plan, if necessary, to modify the project list 
or add TCMs sufficient to achieve emissions levels required by the MVEB 
in the applicable SIP.
    Senate--S. 1072 has no counterpart provisions.
    STAPPA/ALAPCO Recommendation--The House addition of a 12-month 
grace period to delay the effect of a conformity lapse after a 
transportation plan or program is found to be inconsistent with the air 
quality plan would inappropriately allow transportation projects to 
move forward even after it is determined that the transportation plan 
or program is at odds with the air quality plan. STAPPA and ALAPCO, 
therefore, prefer the Senate bill.

Limiting Conformity to Regionally Significant Projects
    Senate--S. 1072, sec. 1615(b) (pp. 273-275), defines the term 
``transportation project'' as used in CAA  176(c)(2)(C) to mean only a 
``regionally significant project'' or a change to a project that makes 
it regionally significant. The CAA prohibits DOT from funding or 
approving any ``transportation project'' unless it comes from a 
conforming RTP and TIP. The new definition of ``transportation 
project'' changes the applicability of the conformity provisions of CAA 
 176(c)(2)C) from all projects in a conforming plan or TIP to only 
those that are regionally significant or that make a significant 
revision to an existing project. Therefore, non-regionally significant 
projects could be approved, accepted or funded during a conformity 
lapse when the plan or TIP does not conform.
    S. 1072 also amends every use of the term ``project'' by adding 
``transportation'' to bring it under the new definition of 
``transportation project'' as regionally significant. This language 
narrows the scope of CAA  176(c)(3)(B)(ii), regarding carbon monoxide, 
to exempt from conformity those projects that create a CO hotspot if 
they are not regionally significant.
    House--H.R. 3550 has no counterpart provisions.
    STAPPA/ALAPCO Recommendation--STAPPA and ALAPCO prefer the House 
bill because the Senate bill would allow large numbers of projects to 
evade conformity review, thereby allowing projects to be funded even if 
they would contribute to a conformity lapse.

Conformity of Projects Listed in the TIP
    Senate--S. 1072, sec. 3006 (pp. 598-599), reenacts the 
transportation planning provisions of 23 USC  5303 (g)(4)(D)(iii) by 
requiring that projects listed in the TIP conform under the CAA if they 
are located in an area designated nonattainment for ozone or carbon 
monoxide. However, under this language, projects in PM10 or 
PM2.5 nonattainment areas that do not conform under the CAA 
may be still included in the TIP project list and, therefore, funded.
    House--H.R. 3550 contains a counterpart provision in sec. 6001 (p. 
857).
    STAPPA/ALAPCO Recommendation--This provision, which is limited to 
ozone and carbon monoxide, appears to create a conflict with CAA  
176(c), which requires that conformity apply to any area designated 
nonattainment for ozone, carbon monoxide or PM, and to ozone, carbon 
monoxide or PM areas that are now designated attainment but which were 
previously nonattainment. This provision should be deleted. If the 
provision is retained, however, it should be 1) amended to also include 
all nonattainment areas for any particulate matter standard and 2) 
expanded to include all former nonattainment areas redesignated to 
attainment, so as to avoid a repeal by implication of the scope of 
conformity in CAA  176(c).

Congestion Mitigation and Air Quality Improvement Program
    STAPPA and ALAPCO strongly support the CMAQ program, which provides 
a discrete source of funding explicitly set aside for transportation 
projects that meet air quality objectives and for projects that result 
in sustainable air quality improvement. The CMAQ program appropriately 
reinforces the interrelationship between the transportation and air 
quality planning processes by specifically recognizing and seeking to 
ameliorate the transportation sector's impact on air quality. Since 
1991, when the program was established, it has been demonstrated that 
CMAQ can play a significant role in helping states and localities 
address transportation-related air quality problems.
    Our associations believe, however, that this important program 
should be strengthened in several ways: 1) by requiring the concurrence 
of state and local air quality agencies for CMAQ project evaluation and 
selection; 2) by expanding the areas eligible to receive CMAQ funding; 
3) by placing greater emphasis on projects that will result in direct, 
timely and sustained air quality benefits; and 4) by substantially 
increasing the federal commitment of resources to the CMAQ program, to 
reflect the true and very significant impact of transportation-related 
emissions on air quality.

Role of Air Quality Agencies in the Evaluation and Selection of CMAQ 
        Projects
    Senate--S. 1072, sec. 1613 (p. 266), requires the U.S. DOT 
Secretary to ``encourage States and metropolitan planning organizations 
to consult with State and local air quality agencies in nonattainment 
and maintenance areas on the estimated emission reductions from 
proposed congestion mitigation and air quality improvement programs and 
projects.''
    House--H.R. 3550 has no counterpart provisions.
    STAPPA/ALAPCO Recommendation--STAPPA and ALAPCO have advocated 
strongly that state and local air pollution control agencies be given a 
``concurrence'' role in the evaluation and selection of CMAQ projects; 
neither bill provides for this. Of the two bills, we believe the Senate 
bill--which, at least, encourages consultation on estimated emission 
reductions--is preferable.

Addition of Areas Eligible for CMAQ Funding
    Senate--S. 1072, sec. 1611 (pp. 261-263), expands areas eligible to 
receive CMAQ funding to include PM2.5 (in addition to ozone 
and carbon monoxide) nonattainment and maintenance areas. By continuing 
to refer generally to ``ozone'' nonattainment and maintenance areas, 
the bill also allows 8-hour ozone nonattainment and maintenance areas 
to be eligible for CMAQ funding.
    House--H.R. 3550 has no counterpart provisions.
    STAPPA/ALAPCO Recommendation--STAPPA and ALAPCO believe that areas 
eligible to receive CMAQ funding should be expanded to include not only 
8-hour ozone and PM2.5 nonattainment and maintenance areas, 
but PM10 nonattainment and maintenance areas as well. The 
associations further believe that CMAQ eligibility should be extended 
to areas nearing nonattainment; areas whose transportation-related 
emissions have an impact on a nonattainment area; and areas that 
experience other air quality problems as a result of transportation-
related emissions, including, but not limited to, hazardous air 
pollutants from mobile sources. Neither bill provides for expansion to 
this extent. Of the two bills, we believe the Senate bill--which 
expands eligibility for CMAQ funding to PM2.5 and 8-hour 
ozone nonattainment and maintenance areas--is preferable. We urge that 
the language be revised to also ensure the eligibility of 
PM10 nonattainment and maintenance areas.

Expansion of Projects Eligible for CMAQ Funding to Include 
        Transportation Systems Management and Operations
    Senate--S. 1072, sec. 1701 (pp. 293-300), expands the scope of 
projects eligible for CMAQ funding to include those that ``improve 
transportation systems management and operations'' without any showing 
that such projects will improve air quality. The broad definition of 
``transportation systems management and operations'' includes, among 
others, such projects and activities as traffic detection and 
surveillance, work zone management, electronic toll collection, roadway 
weather management and traveler information services, all of which are 
unrelated to improving air quality.
    House--H.R. 3550 contains counterpart provisions in sec. 1202 (pp. 
118-119).
    STAPPA/ALAPCO Recommendation--The provisions included in both bills 
would inappropriately open the limited funds available for CMAQ to 
projects unrelated to air quality. STAPPA and ALAPCO urge that they be 
deleted.

Authorization of CMAQ Funds
    Senate--S. 1072, sec. 1101, authorizes $13,435,344,394 over six 
years (2004-2009) for the CMAQ program.
    House--H.R. 3550, sec. 1101, authorizes $9,388,989,000 over six 
years (2004-2009) for the CMAQ program.
    STAPPA/ALAPCO Recommendation--Funding for CMAQ in FYs 1998 through 
2003 was $8,122,572,000. STAPPA and ALAPCO believe the historic 
allocation of CMAQ funds is inadequate to address transportation-
related air quality problems that exist now and that will exist in the 
future. The associations have advocated that overall funding of the 
CMAQ program should be increased significantly to reflect the expanding 
scope and magnitude of transportation-related emissions and their 
impact on air quality, and to accommodate new PM2.5 and 8-
hour ozone nonattainment areas. Of the two bills, we believe the Senate 
bill--which provides a greater increase in CMAQ funding--is preferable.

Other Issues
TCM Substitution
    Senate--S. 1072, sec. 1617 (pp. 278-282), establishes a procedure 
for adding or substituting TCMs in the SIP. Although the bill allows 
for the addition or replacement of TCMs, provided the substituted 
measures achieve equivalent or greater emission reductions and are 
implemented on a schedule consistent with that for TCMs in the SIP, the 
bill specifically does not provide any agency with the lead role, and 
does not provide the air pollution control agency with even a 
concurrence role in determining whether a TCM should be substituted 
and, if so, what the substitute measure(s) should be. Instead, the 
Senate bill merely provides air agencies with a general role in a 
``collaborative process'' and a concurrence role only with respect to 
determining the equivalency of the substitute or additional measure(s). 
In addition, Subparagraph (B), regarding adoption of substitute or 
additional TCMs, could force a state to change its SIP even if it is 
adequate for attainment. Subparagraph (D) eliminates the conformity 
mechanism in current law for ensuring that TCMs are funded and 
implemented.
    House--H.R. 3550, sec. 1824(d) (pp. 376-378), also includes 
provisions for TCM substitutions, but expressly states that the state 
``may'' (versus ``shall'') approve the changes to its SIP and requires 
the MPO to determine that funding is available in the TIP to ensure 
implementation of the new TCMs.
    STAPPA/ALAPCO Recommendation--Although STAPPA and ALAPCO support 
the concept of TCM substitution, the associations do not believe 
legislative action is necessary or appropriate. However, of the two 
bills, we believe the House bill--which corrects many of the 
deficiencies of the Senate bill--is preferable.

Integration of Natural Resource Concerns into State and Metropolitan 
        Transportation Planning
    Senate--S. 1072, secs. 1501(a)(1)(A)(ii) and 1501(b)(1)(A)(ii) (pp. 
152-153), adds ``minimizing adverse health effects from mobile source 
air pollution'' to the list of planning factors for MPO and state long-
range transportation plans that MPOs are not required to consider 
(because judicial review is barred even if the factors are not 
considered at all). In addition, the bill adds a new paragraph (f)(2) 
to 134 and 135, allowing the MPO or state to ``determine which of the 
factors described in paragraph (1) are most appropriate for the 
metropolitan area to consider.'' This provides more explicit authority 
for planning agencies to disregard any factors they determine are not 
``appropriate.''
    House--H.R. 3550 has no counterpart provisions.
    STAPPA/ALAPCO Recommendation--The Senate provisions are highly 
problematic because 1) MPOs and states are granted discretion not to 
consider the adverse health effects of mobile source air pollution and 
2) if the health effects of air pollution are considered to encompass 
the emissions regulated under conformity, then the bar against judicial 
review could be held to bar judicial review of MPO or state conformity 
determinations. STAPPA and ALAPCO, therefore, prefer the House bill.

Transportation Project Development Process
    Senate--S. 1072, sec. 1511 (pp. 180-184), adds a new  326 to 23 
USC. Paragraphs (f)(7) and (g)(6) allow U.S. DOT, as the lead agency, 
to determine whether air quality, water quality, species and habitat 
protection, transportation and land use plans are appropriate for 
consideration in determining the purpose and need for a project. As 
written, the new language inappropriately allows the lead agency 
discretion to disregard ``environmental protection plans,'' which could 
include, among other things, SIP requirements for TCMs.
    House--H.R. 3550 has no counterpart provisions.
    STAPPA/ALAPCO Recommendation--STAPPA and ALAPCO prefer the House 
bill. If, however, the Senate provisions are used as the basis for the 
conference bill, they should be revised--in both (f)(7) and (g)(6)--to 
ensure that consideration of and compliance with applicable 
environmental, land use and other plans adopted to protect community 
resources are not discretionary. For example, the language of (f)(7) 
and (g)(6) should be amended to read FACTORS TO CONSIDER--The lead 
agency will ensure that the following factors and documents are 
considered and complied with in determining the purpose of and need for 
a project.
                                 ______
                                 
                             STAPPA/ALAPCO
 CMAQ and Transportation Conformity Principles for Reauthorization of 
                                 TEA-21
                            October 1, 2002

    Transportation is the dominant source of air pollution in our 
nation, posing a significant threat to public health. The State and 
Territorial Air Pollution Program Administrators (STAPPA) and the 
Association of Local Air Pollution Control Officials (ALAPCO) endorse 
the fundamental principle that transportation and air quality goals 
should be harmonized to ensure that our transportation choices 
contribute to improving our environment. As we seek to reduce 
transportation-related emissions, we recognize the critical importance 
of the Congestion Mitigation and Air Quality Improvement (CMAQ) 
program, long-term air quality/transportation planning processes and 
close collaboration and cooperation between air quality and 
transportation agencies in harmonizing air quality and transportation 
goals. As the Transportation Equity Act for the 21st Century (TEA-21) 
undergoes reauthorization, STAPPA and ALAPCO urge that opportunities 
for enhancing these programs and processes be explored.

Congestion Mitigation and Air Quality Improvement Program
    STAPPA and ALAPCO strongly support the CMAQ program, which 
appropriately reinforces the interrelationship between the 
transportation and air quality planning processes by specifically 
recognizing and seeking to ameliorate the transportation sector's 
impact on air quality. Over the past ten years, it has been 
demonstrated that CMAQ--which provides a discrete source of funding 
explicitly set aside for transportation projects that meet air quality 
objectives and for projects that result in sustainable air quality 
improvement--can play a significant role in helping states and 
localities address transportation-related air pollution problems. As 
CMAQ undergoes review as part of the reauthorization of TEA-21, STAPPA 
and ALAPCO offer the following principles for enhancing the program:
Role of Air Quality Agencies in CMAQ Project Selection
 State and local air quality agencies must have a more defined and 
        consistent role in the evaluation and selection of CMAQ 
        projects.
 The concurrence of state and local air quality agencies must be 
        required for project selection, through a well-defined 
        consultation and concurrence process.
Increase in CMAQ Funds and Expansion of Areas Eligible to Receive 
        Funding
 The historic allocation of CMAQ funds is inadequate to address 
        transportation-related air quality problems that exist now and 
        that will exist in the future. Therefore, overall funding of 
        the CMAQ program should be increased, to reflect the expanding 
        scope and magnitude of transportation-related emissions and 
        their impact on air quality, and in anticipation of new 
        PM2.5 and 8-hour ozone nonattainment areas.
 CMAQ funding should be apportioned based on the severity of an area's 
        air quality problem and its population.
 The types of areas currently eligible to receive CMAQ funding (i.e., 
        1-hour ozone, PM10 and CO nonattainment and 
        maintenance areas) should be expanded to include 
        PM2.5 and 8-hour ozone nonattainment and maintenance 
        areas.
 Areas eligible to receive funding should also include:
     areas nearing nonattainment;
     areas whose transportation-related emissions have an impact on a 
            nonattainment area; and
     areas that experience other air quality problems as a result of 
            transportation-related emissions, including, but not 
            limited to, hazardous air pollutants from mobile sources.

Project Eligibility
 Greater emphasis should be placed on projects that will result in 
        direct, timely and sustained air quality benefits; criteria for 
        substantiating such benefits should be established and data to 
        support the quantification of such benefits should be required.
 Certain types of congestion mitigation projects (e.g., road and 
        bridge construction and expansion) may have the long-term 
        effect of inducing growth in vehicle miles traveled and urban 
        sprawl, and of creating new congestion corridors. CMAQ funding 
        should be shifted away from such projects unless there is a 
        demonstration that these projects will result in sustained air 
        quality benefits.
 To qualify for CMAQ funds, a project should be required to 
        demonstrate that a specified minimum air quality benefit 
        threshold is met or exceeded, based on established criteria and 
        supporting data; such a threshold should be determined with the 
        concurrence of the appropriate state and/or local air quality 
        agency.
 Funding eligibility criteria and guidance should be more clearly 
        defined to meet the above objectives.
 To the extent that these project eligibility criteria are followed, 
        states and localities should then have discretion in 
        determining which qualifying projects receive funding.

Project Funding Beyond Three Years
 Project funding beyond three years should be allowed and decided on a 
        case-by-case basis and contingent on a demonstration of need 
        and continuing air quality benefit.
 Such extended project funding should be phased out over time.

Transportation Conformity
    Implementation of transportation conformity as Congress envisioned 
it in Section 176(c) of the Clean Air Act Amendments of 1990 has only 
begun to occur within the last few years. Delays in establishing motor 
vehicle emissions budgets resulted in the unintended consequence of 
protracted use of the less-than-perfect build/no-build test for 
determining conformity. However, now that motor vehicle budgets are in 
place in nonattainment areas, STAPPA and ALAPCO firmly believe that 
conformity can be implemented as intended, and that its purpose--to 
ensure that shorter-term Transportation Improvement Programs (TIPs) and 
long-term Regional Transportation Plans (RTPs) contribute to the timely 
attainment of healthful air quality and are consistent with (i.e., 
conform to) the motor vehicle emissions budgets contained in the State 
Implementation Plan (SIP) for air quality--can be fulfilled with 
increasing success.
    Because the conformity of transportation plans to air quality plans 
is critical to achieving clean air goals--particularly given the 
continued increase in motor vehicle use and vehicle miles traveled--
preserving the conformity requirements and schedules now in place is 
crucial. Specifically, STAPPA and ALAPCO recommend the following:
Frequency of Conformity Determinations
 Regular and timely analyses to demonstrate compliance of constrained 
        TIPs and RTPs with SIP motor vehicle budgets must be 
        maintained. Such continued frequency will ensure that sound 
        data is generated and allow for the timely improvement of motor 
        vehicle emissions estimates. The result will be improved air 
        quality and timely progress toward attainment of the NAAQS and 
        other air quality goals.
 To better harmonize timelines, conformity analyses on the TIP and the 
        RTP should be synchronized and conducted no less frequently 
        than once every three years.
 In addition, the 18-month SIP ``trigger'' for determining conformity 
        must be maintained.

Planning Horizon
 The 20-year planning horizon for transportation plans must also be 
        retained. Such long-range planning is imperative to ensuring 
        that the potential for growth in mobile source emissions is 
        identified, the impact on air quality is assessed and 
        adjustments to transportation plans are made accordingly.

    Mr. Otter. Thank you very much. Mr. Replogle.

                  STATEMENT OF MICHAEL REPLOGLE

    Mr. Replogle. Yes. Thank you, Mr. Chairman. I am Michael 
Replogle, and I am Transportation Director of Environmental 
Defense, representing our 400,000 members.
    Despite progress in cleaning up air pollutions, half of all 
Americans still live with dirty air. This pollution exacts a 
real toll, contributing to asthma, lung cancer, heart disease, 
and tens of thousands of premature deaths, at the cost that the 
Federal Highway Administration has estimated at more than $40 
billion a year, more than the entire Federal transportation 
budget. I include in my testimony a summary of recent studies 
on these health effects. Even tomorrow's cleaner cars and 
trucks will emit a large portion of the smog-causing 
pollutants, and remain a leading source of air pollution for 
years to come, and that is because Americans are driving more 
and more.
    Conformity is a key tool that helps us to control the 
pollution that contributes to these programs. It helps us keep 
unanticipated growth in traffic and pollution from motor 
vehicles from causing regional air pollution control strategies 
to fail, as has happened repeatedly in the past. Conformity has 
also spurred broader political support for cleaner vehicles, 
fuels, and maintenance programs, strategies that have helped to 
curb traffic and pollution growth, with better travel choices.
    Proposed changes to conformity threaten to undo this 
progress, and to weaken a key tool designed to help State and 
local air pollution officials manage vehicle emissions on a 
long term basis. The result will be that air quality will 
deteriorate, and there will be fewer options for controlling 
pollution. Not only will the health of our citizens suffer, but 
other sources, at greater cost, may be forced to implement 
emission reductions that proper transportation planning could 
have avoided.
    We urge you not to upset the existing clean air and public 
health protections built into our transportation programs. Both 
H.R. 3 and last year's Senate transportation bills include 
provisions that weaken these protections, although in most 
cases, H.R. 3's provisions are less damaging. The most 
preferable action Congress can take is to reaffirm the existing 
law with no changes. We urge you to reject any efforts to add 
new provisions that would weaken clean air protections during 
the conference negotiations.
    A Senate proposal to cut the conformity analysis horizon 
for transportation plans from 20 to 10 years would allow 
officials to ignore, until it is too late, the growth of air 
pollution set in motion by developing new highways, which often 
take more than a decade to be fully seen. In 15 years, only six 
metro areas have faced problems meeting the 20-year test, and 
in every case, added long-term pollution controls, or changing 
transportation plans, has solved these problems. The only 
reason to change this planning horizon for conformity would be 
to disregard the long term consequences of added roads to force 
other sources, like the electric utility industry, or the auto 
industry, to incur the costs of correcting those consequences.
    H.R. 3 is less damaging than the Senate proposal, because 
it would continue the 20-year requirement, except in areas 
where the metropolitan planning organization and air pollution 
control agency agree that the horizon, which agree to reduce 
the horizon, and that allows local needs to be taken into 
account, and other safeguards to be adopted.
    The Senate proposal would also narrow the scope of 
conformity, so it would apply only to regionally significant 
projects, rather than to the entire transportation program and 
plan. It would exempt smaller projects from requirements to 
consider local pollution hot spots and cumulative impacts. It 
would allow large investments in polluting projects during a 
conformity lapse, worsening the violation of emission budgets. 
Thankfully, H.R. 3 has no counterpart provision. A Senate 
proposal would also allow transportation agencies to modify 
transportation control measures and SIPs without oversight from 
environmental agencies, weakening the integrity of those SIPs, 
and leading to their failure. H.R. 3 corrects some of those 
deficiencies.
    Current law requires updating conformity for areas with 
unhealthful air quality every 3 years for long range 
transportation plans, which matches and synchronizes with the 3 
year milestone compliance demonstration requirements, by which 
EPA can ensure timely updates to air quality plans. The Senate 
bill and H.R. 3 propose a 4-year cycle, and H.R. 3 would add to 
this a 1-year grace period before conformity lapse takes 
effect. These changes would undermine timely awareness and 
action to correct conflicts between transportation and air 
quality plans, contributing to more missed clean air deadlines.
    Another Senate provision would set aside current limits on 
motor vehicle emissions in areas that violate the national 
ozone standard. Current emission budgets for these areas were 
approved by EPA a few years ago. The bill would not require new 
limits on motor vehicle emissions in these areas until new 
pollution control plans are submitted by the States to 
implement the new, more stringent ozone standard. And that is 
years off. According to EPA, that delay, when no emission 
budgets would be in effect, could allow motor vehicle emission 
increases of 10 to 50 percent above the current levels allowed. 
EPA concluded in a recent rulemaking that these large increases 
in emissions could prevent an area from ever meeting the new 
national health standard.
    And finally, conformity has fallen short in one of its 
goals, and that is to encourage transportation plans to 
contribute to more timely attainment of healthful air quality. 
But there are regions that have shown progress in this area, 
and are finding ways to reduce pollution at no cost through 
better community designs that minimize traffic growth while 
maximizing travel choices. Salt Lake City, Sacramento, Denver, 
and Charlotte, and others, have recently built on the early 
success of Portland, Oregon in this area.
    Recent reports by the Center for Clean Air Policy discuss 
some of the best practices and offer useful suggestions for how 
to improve clean air and transportation planning. I include 
these in my testimony, and commend these for your 
consideration.
    Thank you.
    [The prepared statement of Michael Replogle appears at the 
end of the hearing.]
    Mr. Hall. I thank you, sir. The Chair recognizes Mr. 
Holmes.

                    STATEMENT OF BRIAN HOLMES

    Mr. Holmes. Mr. Chairman. Mr. Chairman, Ranking Member 
Boucher, I am Brian Holmes of the Maryland Highway Contractors 
Association, here today on behalf of the American Road & 
Transportation Builders Association. We appreciate this 
opportunity to discuss the Clean Air Act transportation 
conformity provisions of H.R. 3.
    At the outset, please know that we share your interests in 
assuring that all Americans breathe clean air. We believe the 
conformity provisions in H.R. 3 are an important step in 
reaching that goal. Conformity is of critical importance to the 
transportation construction industry, which is why, over the 
past 5 years, ARTBA has been heavily involved in supporting 
government agencies in conformity related litigation.
    Mr. Chairman, there are two points I hope the subcommittee 
will take away from today's hearing. First, government agencies 
and planning bodies need more flexibility on conformity. And 
second, the public, including those who build transportation 
projects for government agencies, need more predictability in 
the transportation conformity process.
    Right now, the conformity process is not flexible. Some 
have tried to turn it into an exact science, which it is not. 
Conformity determinations are based on assumptions and computer 
modeling. Look what happened when the Mobile Five model was 
replaced by the Mobile Six model. Most emissions were projected 
to decline, but there was an initial bump-up that threw a 
number of jurisdictions into nonattainment. As in any case 
where the margins of error can exceed the changes you are 
attempting to measure, there needs to be some leeway given to 
State and local governments. The process also has been made 
more rigid over the last 10 years by litigation brought by 
those opposing specific projects, or the notion of increased 
highway capacity.
    H.R. 3 addresses these concerns, and we strongly support 
its proposals. H.R. 3 improves the flexibility of 
transportation conformity in the following areas, new triggers 
for conformity determinations, and conformity determination 
updates, time horizons for conformity determinations in 
nonattainment areas, and substitution of transportation control 
measures for conformity determinations in State implementation 
plans.
    H.R. 3's 12-month grace period for existing projects in 
areas that have fallen out of attainment will allow already 
approved, environmentally sound projects to continue while 
State and government--State and local governments take actions 
to return to attainment. This application of flexibility and 
common sense is to be commended. Abruptly halting 
transportation projects after a finding of nonattainment is 
both costly and inefficient. The 1 year grace period will also 
cut down on lawsuits designed to delay and ultimately halt 
needed projects. The goal of H.R. 3's grace period could be 
additionally furthered by grandfathering, or the creation of 
other safe harbors for projects.
    Conformity must be forward looking. Once a transportation 
project is in a conforming plan, it should be permanently 
grandfathered until it is either built or removed from the 
plan. Legislation to do that was introduced last Congress by 
Representatives Brady and Green, and cosponsored by Chairman 
Hall, along with others on this subcommittee. ARTBA urges 
Congress to introduce and pass that bill, H.R. 673, the Safe 
Highways and Roads Act. It is much needed legislation.
    Fully supporting the reforms in H.R. 3, ARTBA invites the 
subcommittee to consider 3 measures to further improve the 
transportation conformity process. First, areas transitioning 
to new air quality standards should be allowed to use their 
existing motor vehicle emissions budgets until new emissions 
budgets are available. This avoids the need for project-
specific conformity determinations, allows progress without 
unnecessary delay, and maintains adherence to existing 
environmental safeguards. This provision was contained in 
Senate 1072, SAFE-TEA, as passed by the Senate last session, 
and it deserves another look now.
    Second, the gestation process for a highway project is so 
long and involved that there is a need for protection from 
unnecessary lawsuits in areas such as seeking judicial review 
of motor vehicle emission budgets. Also, when lawsuits do 
arise, there should be equal participation for all interested 
parties, including contractors and transportation users. Third, 
the subcommittee might wish to consider a diesel retrofit 
program for diesel-powered construction equipment.
    Mr. Chairman, Ranking Member Boucher, members of the 
subcommittee, ARTBA appreciates this opportunity to present 
testimony on this much needed legislation, and I look forward 
to answering any questions.
    [The prepared statement of Brian Holmes follows:]

   Prepared Statement of Brian Holmes, Executive Director, Maryland 
   Highway Contractors Association on Behalf of the American Road & 
                  Transportation Builders Association

Introductory Remarks
    Good afternoon Mr. Chairman, Ranking Member Boucher and members of 
the Subcommittee. Thank you very much for providing the American Road & 
Transportation Builders Association (ARTBA) with the opportunity to 
present its views on the transportation conformity process and reform 
provisions related to it in H.R. 3, ``The Transportation Act: A Legacy 
for Users.''
    I am Brian Holmes, executive director of the ARTBA affiliated 
Maryland Highway Contractors Association (MHCA). Prior to joining MHCA, 
I served 13 years as director of regulatory affairs for the Connecticut 
Construction Industries Association, also an ARTBA state affiliate. I 
am also privileged to serve as chairman of the Nationwide Public 
Projects Commission.
    I am here today representing ARTBA, whose eight membership 
divisions and more than 5,000 members nationwide, represent all 
sectors--public and private--of the U.S. transportation design and 
construction industry. ARTBA, which is based in Washington, D.C., has 
provided the industry's consensus policy views before Congress, the 
Executive Branch, federal judiciary and the federal agencies for 103 
years.
    The transportation design and construction industry ARTBA 
represents generates $200 billion annually to the nation's Gross 
Domestic Product and sustains the employment of more than 2.5 million 
Americans.
    I would like to say at the outset that ARTBA shares your interest 
in assuring that all Americans breathe clean air. We are not here today 
to suggest a radical overhaul of the conformity process. We would, 
however, like to suggest some badly-needed ``fine-tuning'' of federal 
law that will not only improve public health from a clean air 
perspective, but also improve the efficiency of making environmentally-
sound and needed transportation investments.

General Background on the Clean Air Act and the Transportation 
        Conformity Process
    Under the federal Clean Air Act, the U.S. Environmental Protection 
Agency (EPA) regulates six criteria pollutants: ozone, carbon monoxide, 
nitrogen dioxide, sulfur dioxide, particulate matter (also known as 
soot and dust) and lead. For each pollutant, EPA has established 
minimal targets known as the National Ambient Air Quality Standards 
(NAAQS) that must be met by state and local governments.
    If an area exceeds EPA's standards for any one of these 
``criteria'' pollutants, it is designated a nonattainment area, 
triggering a series of steps that must be taken to come into compliance 
with the standards. In addition, for ozone, carbon monoxide and some 
particulate matter nonattainment areas, the EPA further classifies the 
area based on the magnitude of the nonattainment. These classifications 
are used to specify what pollution reduction measures must be adopted 
for the area and what deadlines must be met to bring the area into 
attainment.
    Once an area is designated as nonattainment, the state must 
establish a State Implementation Plan (SIP) outlining how the state 
will come into compliance with EPA standards over a designated period 
of time. The SIP includes an emissions budget that shows allowable 
levels of emissions from three separate sources. They are stationary 
sources (i.e., power plants, factories), area sources (i.e., dry 
cleaners, gas stations) and mobile sources (i.e., cars, lawnmowers). 
The mobile source portion of the emissions budget is further subdivided 
to include a Motor Vehicle Emissions Budget (MVEB), which is the total 
emissions allowed for cars and trucks. Once this number is known, 
metropolitan planning organizations (MPOs) are charged with putting 
together both short-term Transportation Improvement Programs (TIPs) and 
long term Regional Transportation Plans (RTPs) that demonstrate 
projected emission that are less than the MVEB. Thus the TIP and RTP 
must fit within the constraints established by the SIP.
    The transportation conformity process refers to the requirement set 
forth in Section 176 of the Clean Air Act that air emissions generated 
by transportation projects match or ``conform'' to emissions budgets 
established in state air quality plans. If the TIP does not conform 
with the SIP, the area is deemed to be out of conformity. If an area is 
out of conformity, federal highway funds are cut off. As a result, an 
area's TIP cannot include highway or transit transportation 
construction projects that will accommodate transportation anticipated 
to result in emissions that exceed the MVEB.

Transportation Sector Successes in Achieving Cleaner Air
    Mr. Chairman, there's no doubt that we have made great progress 
over the past 30 years in improving the nation's air quality. Much of 
this progress has been achieved through technology advancements spurred 
by motor vehicle emissions standards and controls and cleaner motor 
fuels. According to a report recently released by the Environmental 
Protection Agency entitled ``Air Emissions Trends, Continued Progress 
Through 2003,'' emissions from highway vehicles were dramatically 
reduced between 1970 and 2003. Specifically, carbon monoxide emissions 
were reduced by 64 percent, volatile organic compounds--a precursor to 
ozone--were reduced 74 percent, particulate matter (PM-10) emissions 
declined 61 percent, and nitrogen oxide (NOx) emissions went down by 42 
percent. These numbers are even more remarkable given that since 1970, 
the U.S. population has grown more than 39 percent, the number of 
licensed vehicles has increased about 90 percent and the number of 
vehicle miles traveled has increased 155 percent.
    In addition, earlier this year, major automobile manufacturers 
announced a new generation of vehicles that are 99 percent cleaner than 
vehicles produced 30 years ago. This reduction in emissions comes from 
a four-part strategy that includes cleaning up the fuel as it goes into 
the vehicle, burning the fuel more precisely in the engine, removing 
undesirable emissions with a catalyst after the engine, and monitoring 
all of these systems to ensure these minimal emission levels.
    So you can see, Mr. Chairman, much of the progress that has been 
made in improving the nation's air quality, has come from the 
transportation sector.

Problems with the Conformity Process
    Mr. Chairman, that leads me to my comments about the conformity 
process itself. There are two things I hope you take from this hearing 
today: (1) that government agencies and planning bodies need more 
flexibility on conformity; and (2) that the public--especially those 
who contract with government agencies to build transportation 
improvement projects--need more predictability in the transportation 
conformity process.
    One of the major problems with the conformity process is that some 
have tried to turn it into an exact science, when it is not. Conformity 
determinations are based on assumptions and computer modeling. All you 
have to do is to look back at the predictions made during the enactment 
of the Clean Air Act Amendments of 1990 to understand that ``modeling 
of future events'' often does not reflect reality.
    An example of this is EPA's transition from the Mobile5 model to 
the Mobile6 model for predicting future on-road emissions. In applying 
the new Mobile6 model to current data, regions are experiencing a 
substantial short-term increase in predicted emissions for some 
pollutants as compared to the Mobile5 model. While over the long term 
the Mobile6 model shows decreasing emissions, this could cause 
substantial problems for many areas and threaten a potential conformity 
lapse in the short term. Even though the data being entered into the 
models is the same, each shows significantly different outputs.
    This problem is amplified by the fact that quite often 
transportation plans and the SIPs they are supposed to conform with are 
often out of sync with one another. This is largely due to the fact 
that transportation plans have very long planning horizons and have to 
be updated frequently, while most air quality plans have very short 
planning horizons and are updated infrequently. As a result, many of 
the planning assumptions that must be used for conformity 
determinations of transportation plans and programs are not consistent 
with the assumptions that were used in the air quality planning process 
to establish emissions budgets and to determine appropriate control 
measures. In other words, because the most recent planning data must 
always be used, an increase in emissions and possible conformity lapses 
can occur simply because the numbers or models relied on in the 
transportation plan are not the same numbers relied upon in the air 
quality plan.
    Part of this is due to the fact that the priority of various 
transportation projects often changes and every time this occurs, the 
plan needs to be updated.
    While many have suggested that the planning horizons should be 
brought more in sync with one another, another option would be to 
simply allow greater flexibility in the process, recognizing the 
inexact science involved.
    Rather than requiring plans to conform to the ``nth-degree,'' 
perhaps a 10 percent ``cushion'' should be allowed so that 
transportation planners would not have to amend their plans every time 
they want to add or subtract even a relatively insignificant project.
    Such a cushion would also permit some differences in planning data 
or models and would allow a margin of error for modeling assumptions 
planning organizations make but have no real way of predicting with 
precision--such as economic growth or the current price of gasoline--
even though such things have a substantial impact on future travel or 
the use of larger vehicles like SUVs.
    Very few conformity lapses occur because a region has a major clean 
air problem. They occur because one of the parties involved cannot meet 
a particular deadline. As a result, the conformity process has become a 
top-heavy bureaucratic exercise that puts more emphasis on ``crossing 
the t's and dotting the i's'' rather than engaging the public in true 
transportation planning that is good for the environment and the 
mobility of a region's population.

Opening the Door to Unnecessary Litigation
    Mr. Chairman, flexibility in the conformity process also has been 
constrained by litigation initiated over the past several years by 
parties opposed to individual transportation projects and/or the 
concept of increasing highway capacity. This litigation will only 
increase in light of the recently enacted EPA requirements for PM-2.5 
and ozone.
    In 1997, in Sierra Club v. EPA, the court said EPA could not 
continue the practice of allowing areas that are new non-attainment 
areas to have a one-year grace period before they need to perform a 
conformity test. In yet another court case in 1999 (Environmental 
Defense Fund v. EPA), the court struck down EPA's practice of 
``grandfathering'' projects when a conformity lapse occurs. Up to this 
point, when an area went into a conformity lapse projects could proceed 
if they had already met all of the necessary environmental requirements 
and were part of a conforming transportation plan at the time of the 
lapse. In defending its own rule before the court, EPA stated:
          ``EPA's rule reflects its rational judgment that Congress 
        intended a more reasoned approach to transportation planning 
        during periods in which there is no applicable SIP, that 
        Congress intended that there be an attempt to balance the 
        general pollution-reduction requirements of the Act with the 
        needs of state and local planning organizations for certainty 
        and finality in their transportation planning process.''
42 U.S.C. 7506(c)(2). [EDF v. EPA, Case No. 97-1637, Respondent's 
Brief, June 10, 1998, p. 30.]
          ``EPA explained that it `has always believed that there 
        should only be one point in the transportation planning process 
        at which a project-level conformity determination is necessary. 
        This maintains stability and efficiency in the transportation 
        planning process.' ''
[EDF v. EPA, Case No. 97-1637, Respondent's Brief, June 10, 1998, p. 
36.]
    Two other long-standing practices have also been struck down by the 
courts, which has reduced flexibility in the conformity process and 
deserve this subcommittee's attention:

 EPA is often not able to approve a state's motor vehicle emissions 
        budget in time for a conformity determination to be made. Prior 
        to the EDF v. EPA case mentioned above, these budgets were 
        assumed to be automatically approved if EPA did not act within 
        a certain period of time. That decision, however, struck down 
        this long-standing practice.
 Many states have not been able to meet their ozone compliance 
        deadlines since much of their clean air problem is the result 
        of ozone drifting in from other areas, known as ozone 
        transport. In the past, EPA has granted extensions to the 
        deadline in some of these areas. However, in Sierra Club v. EPA 
        (D.C. Cir. 2002), the court ruled that EPA does not have the 
        authority to grant these extensions and must, instead, ``bump'' 
        these areas into the next higher classification of 
        nonattainment, which would trigger several additional mandatory 
        control measures.
    Without the flexibility option of ``grandfathering'' projects, we 
have seen a significant increase in conformity-related litigation. 
Those opposed to an individual project--or the mix of projects or modal 
funding in a transportation plan--have been given tremendous leverage 
by the EDF v EPA decision. They can now use conformity-related 
litigation as a sure way to temporarily, if not permanently, stop 
previously approved, environmentally sound projects and plans. 
Threatened with such litigation--or actually sued over conformity 
process-related issues--state and local planning agencies are put under 
enormous pressure to either give into the demands of the dissenting 
minority, or face endless rounds of litigation.
    In response to this reality, ARTBA joined several other industry 
groups in 1999 to form Advocates for Safe and Efficient Transportation 
(ASET), a litigation group aimed at assisting governmental entities in 
defending the transportation planning and delivery process. While many 
of the professional environmental groups talk a lot about wanting a 
more ``inclusive'' transportation planning process, the fact of the 
matter is really quite different.
    Since ASET was formed, it has spent hundreds of thousands of 
dollars, not in arguing the merits of many of these cases, but in 
battling with environmental groups over simply trying to get a seat at 
the table. I could provide you a pile of court briefs where groups like 
the Sierra Club argue adamantly that the construction labor 
organizations and industry should not have a say in the final decision 
about transportation plans. The truth is that the Sierra Club and many 
of their colleague organizations do not want an inclusive planning 
process. They want a process where they and they alone are allowed to 
influence the process.
    When the planning process is allowed to be hijacked by any one 
individual group, bad decisions are made. The truth is that America 
needs a dynamic transportation network to meet the needs of a growing 
population and economy. Such a network should include improving public 
transit, increased utilization of synchronized traffic signalization 
and other ``smart road'' technologies, improving local management of 
traffic incidents to clear roadways quickly and adding road capacity 
where appropriate and desired by a majority of local citizens. This is 
key to reducing traffic congestion and the unnecessary auto, truck and 
bus emissions it causes. It is also essential to maintaining time 
sensitive ambulance, police and fire emergency response service.
    On a related front, the Sierra Club recently initiated litigation 
which has temporarily halted a desperately needed highway improvement 
project on U.S. 95 in Las Vegas, Nevada. ARTBA, realizing the far 
reaching implications of this litigation filed a ``friend of the 
court'' brief supporting the United States Department of Transportation 
in the case. 1This type of litigation demonstrates that professional 
environmental groups will use any legislative loophole available to 
delay desperately needed transportation construction process. These 
actions on the part of the professional environmental community further 
show that the transportation planning process needs to be insulated 
from needless litigation.
    Mr. Chairman, I believe very strongly in the transportation 
planning process--a process that involves public involvement by all 
stakeholders and final decisions that are made by public officials. 
However, we have come to a point where the planning process is breaking 
down under a mound of litigation.

The Human & Economic Costs of Delaying Transportation Improvements
    Mr. Chairman, there are several very important reasons--often 
missing from the debate--for making sure that the transportation 
conformity process is reformed to limit its use by those whose aim is 
simply to obstruct transportation development:

 Unnecessary delays thrown in the way of transportation projects delay 
        infrastructure improvements that can cut the harmful emissions 
        and billions of dollars in wasted motor fuel caused by traffic 
        congestion.
 Such delays drive up the ultimate construction cost for the project 
        to the taxpayer. In this case, time certainly is money.
 Most importantly, however, they delay the initiation of 
        infrastructure improvements that can save lives and prevent 
        injuries. With more than 42,000 Americans dying each year on 
        the nation's roadways, that should be a primary consideration. 
        The fact is, one third more people die each year in motor 
        vehicle crashes than die of bronchitis and asthma combined. 
        Motor vehicle crashes are the leading cause of death of young 
        Americans under the age of 25.
        changes to the transportation conformity process in the 
       ``transportation equity act: a legacy for users'' (h.r. 3)
    Mr. Chairman, provisions in H.R. 3 concerning transportation 
conformity address a number of the problems associated with the process 
and we strongly support these proposals.

Conformity Redeterminations
    Section 1824(a) of H.R. 3 extends the requirement for new 
conformity determinations resulting from an EPA finding of adequacy or 
approval of a new MVEB to two years. This is an improvement over the 
current regulations which require conformity determinations within 18 
months. Again, this is a positive step.
    Beyond this, what is needed is MVEB adequacy and regulatory 
flexibility. A 1999 court ruling struck down an EPA rule that conferred 
automatic MVEB approval if EPA did not act promptly and called into 
question EPA's overall process for approving MVEBs in submitted-but-
not-yet-approved SIPs. Conformity obligations often arise with short 
notice due to changes in attainment status or failure of EPA to timely 
approve MVEBs or SIPs. Without an approved MVEB, conformity 
determinations cannot be found and transportation projects cannot be 
approved.

Frequency of Conformity Determination Updates
    Section 1824(b) of H.R. 3 extends the timeline for determining 
conformity to every four years with all too frequent exceptions when an 
MPO chooses to update the plan or TIP more frequently or when SIP 
actions trigger a new conformity determination. This is an improvement 
over the current law, which requires conformity determinations every 
three years.
    By extending the timeframe for conformity determinations, H.R. 3 
cuts down on unnecessary requirements that do not have any analytical 
value unless there has been a major change in emissions.
    Another method of dealing with this issue would be to require 
conformity updates only in instances where a changed TIP affects 
projected emissions by more than a set threshold amount.
    A new conformity determination should not be required if one or 
several projects are added to the transportation plan or TIP, as long 
as the net emissions from their inclusion will not add more than three 
percent to projected transportation emissions in the plan. In reality, 
added transportation emissions that might be facilitated by a single 
highway project are minuscule. This would avoid what is largely a 
paperwork exercise.
    Conformity determination should not be done simply for its own 
sake. It is a very intensive and rigorous process. Rather, it should 
only be required only when significant changes to the TIP warrant. H.R. 
3, by extending the time frame for conformity determinations, is a good 
step in this direction.

Time Horizon for Conformity Determinations in Nonattainment Areas
    Section 1824(c) of H.R. 3 limits conformity to the end of the 
maintenance period provided that the MPO and air quality agency agree. 
the ``Safe, Accountable, Flexible, and Efficient Transportation Equity 
Act of 2004'' (S. 1072) as passed by the Senate last session, did not 
contain the requirement that the MPO and air quality agency agree. This 
is a more efficient approach, as there should not be a need for the 
agreement of the MPO and the air quality agency here. If the 
maintenance period has ended, then conformity determinations should no 
longer be required. By tying this decision to the agreement of the MPO 
and air quality agency, this provides an unwelcome opportunity for 
extension of the conformity requirements when they are no longer 
needed.
    Section 1824(c) of H.R. 3 further provides that, in general, 
conformity findings must be based on the last (20th) year of 
transportation plans. It allows, with agreement of the MPO and 
applicable air quality agency, conformity findings to be based on the 
latest date of the 10th year of the transportation plan, the attainment 
date of the SIP, or the year after the completion date of a regionally 
significant project (if approval is required before a subsequent 
conformity determination). Regional emissions analysis must be done for 
the remaining years of the transportation plan.
    While this enhanced flexibility is positive, H.R. 3 does not 
include provisions allowing for the imprecision of data inputs to be 
appropriately accommodated. As stated above, modeling is an inexact 
science at best. Requiring conformity to be demonstrated to the ``nth'' 
decimal point makes little sense from a public policy standpoint. We 
recommend that, conformity should be allowed to be demonstrated if the 
emissions from the transportation plan are at least within 10 percent 
of the emissions budget. In addition, SIPs should contain an adequate 
``margin of safety'' to avoid conformity lapses due to marginal changes 
in expectations.

Substitution of Transportation Control Measures
    Section 1824(d) of H.R. 3 allows the substitution of transportation 
control measures without a mandatory SIP revision under certain 
circumstances. This is a positive change that allows for alternate 
planning without triggering an unnecessary SIP revision process.

Lapse of Conformity
    Section 1824(e) of H.R. 3 provides that ``conformity lapses'' will 
not take effect until 12 months for projects approved prior to a 
finding that an area is not within conformity. This is a welcome relief 
from the rigidity of the conformity process allowing projects to 
continue while actions are taken to return to conformity. Abruptly 
halting transportation projects after a finding of nonattainment is 
both costly and inefficient. This reinstatement of the one-year grace 
period also will cut down on unnecessary lawsuits designed to delay and 
halt vitally needed transportation projects.
    The goal of H.R. 3's grace period provision could be further 
accomplished by the restoration of grandfathering or the creation of 
other safe harbors for projects. Conformity must be forward-looking. 
Retroactive invalidation of projects after funding approval is 
counterproductive to smart growth and mobility considerations. 
Conformity lapses stop all projects, transit and highway alike, and 
puts construction crews out of work without notice. Once a 
transportation project is in a conforming plan, it should be 
permanently grandfathered until built or removed from the plan. 
Legislation introduced last congress by Representative Kevin Brady (R-
TX) and Representative Gene Green (D-TX), and cosponsored by 
Subcommittee Chairman Ralph Hall (R-TX) and others this subcommittee, 
H.R. 673 ``The Safe Highways and Roads Act'', accomplished this goal.
    The conformity provisions of H.R. 3 represent a significant step 
forward in improving the transportation conformity process.

  ADDITIONAL CONFORMITY REFORM RECOMMENDATIONS FOR INCLUSION IN H.R. 3

    While ARTBA fully supports the reforms contained in H.R. 3, the 
following measures should be considered in this legislation to further 
improve the transportation conformity process:

Allow Use of Existing MVEB's to Demonstrate Conformity
    Areas transitioning into new air quality standards should be 
allowed to use existing MVEB's addressing the same pollutants or other 
emissions tests to demonstrate conformity before budgets are available. 
This avoids the need for project specific conformity determinations and 
allows the transportation process to proceed without unnecessary delay 
while adhering to existing environmental safeguards. This provision was 
contained in the ``Safe, Accountable, Flexible, and Efficient 
Transportation Equity Act of 2004'' (S. 1072) as passed by the Senate 
last session.

Prohibit MVEB Judicial Review
    Under existing regulations, EPA can declare a MVEB adequate for 
transportation planning purposes prior to approval of the entire SIP. 
This approval process is not as comprehensive as full SIP approval and 
EPA reserves the right to withdraw its approval at anytime (therefore, 
it is not a final agency action). Environmental groups have filed 
lawsuits alleging that preliminary MVEB approval must be as rigorous as 
final SIP approval and EPA has not contested jurisdiction in these 
lawsuits. (i.e., 1000 Friends of Maryland suit against EPA).

Provide Further Protection From Lawsuits
    Planners have to rely on current state-of-the-art modeling and good 
faith estimates to develop air quality and transportation plans. 
Environmental groups are attacking the estimates and demanding 
exactitude that doesn't exist.
    A requirement on plaintiffs to make an initial showing of bad faith 
before filing suit would allow only suits with some standard of merit 
to proceed. In the absence of such a showing, agreement by the MPO, 
state air quality agency, EPA and U.S. DOT should be per se evidence of 
the validity of emissions estimates. (Example: Sierra Club sued 
Sacramento for using EPA data). Almost 200 U.S. counties will face 
conformity for the first time under the revised ozone and particulate 
matter standards. They will not be able to develop ``airtight'' plans 
immediately, thus opening the door to lawsuits. These areas must be 
given adequate time (at least two years) and adequate resources to 
develop the detailed databases needed to demonstrate conformity. 
Smaller MPOs, in particular, are ill-prepared to fulfill all of the 
conformity requirements.

Ensure Private Sector Transportation Improvement Advocates Have Equal 
        Intervention Rights
    Environmental groups are using lawsuits to pressure policy makers 
and exclude other stakeholders. Contractors and transportation users 
should have the right to participate in lawsuits as equals to 
professional environmental groups. A double standard leads to 
duplicative lawsuits and moves the planning process out of the public 
forum and into the courtroom.

Conclusion
    Mr. Chairman, Ranking Member Boucher, and other members of the 
subcommittee, ARTBA deeply appreciates having this opportunity to 
present testimony to you on this critical transportation issue. To 
summarize my comments:

 The nation is making huge progress on cleaning up the air, but almost 
        all of this progress can be attributed to technology gains, not 
        transportation control measures;
 Greater flexibility and predictability is needed in the 
        transportation planning and conformity process;
 H.R. 3 takes several positive steps towards achieving a workable 
        transportation conformity process that both benefits the 
        environment and allows for needed transportation development.
 More must be done to put a stop to the endless litigation that is 
        tying the transportation planning process into knots;
 Delaying transportation improvement projects results in unnecessary 
        deaths and other negative costs to society.
    Again, thank you. I look forward to any questions the Committee 
might have.

    Mr. Hall. All right. I thank you very much. And I will 
start the questions, and I would ask Mr. Clifford, you state 
that MPOs without conformity requirements are freer to 
undertake activities such as scenario planning, enhanced public 
participation, and other innovative measures. How does being 
able to undertake these activities affect air quality goals and 
transportation planning?
    Mr. Clifford. Well, that is an example of some other 
planning activities that represent good methods. The point we 
were trying to make was we are spending possibly an inordinate 
amount of time with some of the conformity activities, by the 
fact that we do it throughout the year.
    Mr. Hall. I am trying to find out if being able to 
undertake these activities doesn't benefit both air quality 
goals and transportation planning.
    Mr. Clifford. Yes, sir. That is really what we meant by 
that, to further the planning function.
    Mr. Hall. Ms. Liebe, if I have read your testimony 
correctly, at the bottom, you say that ideally, Congress should 
do nothing with respect to conformity, but if it does, the 
House bill is better than the Senate bill. It seems like 
someone has testified that the Senate bill was better than the 
House bill. I don't want to get you into a debate here, but 
kind of give us your reasons for saying that.
    Ms. Liebe. Thank you, Mr. Chairman. The reasons why--the 
main reason we prefer the House version is the opportunity for 
air quality agencies to participate in the decisionmaking on 
whether or not emissions analysis is going to be conducted 
beyond the 10 years that is currently called for in the Senate 
bill. The House version allows that to be agreed upon only with 
the concurrence of the State air quality agency, and we really 
think it is critical that you look out 20 years, so that you 
can evaluate all of the future impacts of the facilities, as 
you are making the decisions on where to put your investment.
    Mr. Hall. Mr. Replogle, did I say that right?
    Mr. Replogle. It is Replogle.
    Mr. Hall. Okay. If I have read your testimony correctly, at 
the bottom, you say that ideally, Congress should do nothing 
with respect to conformity. But if it does act, the House bill 
is better than the Senate bill. You agree to that?
    Mr. Replogle. Yes. That is correct.
    Mr. Hall. And in your testimony, you complain, though, that 
the Senate bill would reduce the planning horizon from 20 to 10 
years. Now, does the House bill maintain the 20 year planning 
horizon?
    Mr. Replogle. Yes, it does, except when both the State and 
local agencies, and regional planning bodies all agree to you 
try and use a shorter horizon. So there is some flexibility in 
the House bill to adopt a shorter horizon, but in the default 
case, the 20 year planning horizon stays in place, and we think 
that that is preferable to the Senate's proposal.
    Mr. Hall. And you have a Washington, DC example. Do I 
understand that example? Under existing law or under the law as 
amended by H.R. 3, Washington, DC is a nonattainable area?
    Mr. Replogle. Washington, DC has been a nonattainment area 
for decades, and has missed repeated clean air deadlines, in 
part, because it has underestimated the growth of motor vehicle 
pollution, and the fact that under current law, the need to 
review the transportation conformity every 3 years has, in 
fact, in the Washington region, just in the last several years, 
prompted additional pollution reduction measures to be taken by 
Maryland and Virginia and the District of Columbia, that has 
helped us to protect public health. And if the changes that are 
proposed in H.R. 3 or the Senate bill were--would have been 
law, those pollution reductions might not have been taken.
    Mr. Hall. So what would it take to make the DC area an 
attainment area?
    Mr. Replogle. It will take additional steps to reduce 
pollution from all sources, motor vehicles and power plants, 
and other sources. There is a significant concern under the 
Senate bill that the Washington region is likely to approve a 
lot of new transportation projects, which will make it, in the 
next several years, which would make it far more difficult for 
the region to attain the health standards that have been put in 
place.
    Mr. Hall. I thank you. My time is up. The Chair recognizes 
the gentleman from Virginia.
    Mr. Boucher. Thank you, Mr. Chairman. And I want to express 
appreciation to our witnesses for informing us of their views 
this afternoon.
    Your concerns have been well articulated here, and have 
been duly noted by us. The recommendations that you have made 
for changing the statutory language have been duly noted. I am 
not going to dwell on that in my question. We face a practical 
problem, and that is, the bill is going to the floor next week, 
and we need to make some decisions about what we are going to 
do about the matters we have discussed here today.
    I perceive that each of you would probably prefer the House 
version of this legislation to the Senate. Some of you would 
prefer that we do nothing, that the Congress do nothing, and 
leave the situation as it is, but that is not likely to happen. 
We are probably going to have changes. I think you acknowledge 
that. And given that reality, let me just ask each of you, and 
this can be a simple yes or no, would you prefer the House 
version to the Senate version? I would like to get each of you 
to respond to that.
    We will start with you, Mr. Clifford. And a simple yes or 
no is what I am looking for here.
    Mr. Clifford. The House version.
    Mr. Boucher. Thank you. Ms. Liebe.
    Ms. Liebe. The House version. I also want to throw in that 
I really would like to recognize the work of this subcommittee, 
and of your staff, in coming up with H.R. 3.
    Mr. Boucher. Thank you very much. Mr. Replogle?
    Mr. Replogle. I will second the comments that Ms. Liebe has 
just made, both preferring the House version, and commending 
the staff for their work here.
    Mr. Boucher. Thank you. Mr. Holmes?
    Mr. Holmes. We would prefer the House version. We believe 
the provision for the 12-month grace period is particularly 
useful in cases where there is poor synchronization between 
parallel programs.
    Mr. Boucher. Well, thank you for those answers. I had 
assumed that each of you would prefer the House version to the 
Senate version. And I would also assume that you would 
encourage us to go forward at this point, because if we do 
nothing, then the bill goes into conference with the Senate 
version, which you do not prefer. I think you would probably 
prefer to have the House version there, to put alongside the 
Senate version when the conference takes place. Would all of 
you agree with that?
    Mr. Clifford.
    Mr. Clifford. Yes.
    Ms. Liebe. Yes.
    Mr. Boucher. Yes. Everyone agrees.
    Mr. Replogle. Yes.
    Mr. Boucher. Okay. Well, you have been most agreeable 
witnesses. Thank you. That concludes my questions, Mr. 
Chairman. And again, I want to thank you for sharing your time 
with us today.
    Mr. Hall. I thank you, and that will conclude our hearing, 
and we do thank you, and don't have any pangs of anxiety about 
the lack of members here, because as you see, this is taken 
down. It will be given to every member, not just of this 
subcommittee, but of the entire Energy and Commerce Committee, 
and the U.S. Congress. It is available to them. It is from 
these, this testimony, that we will prepare and carry out the 
passage of this Act, and we are going to pass it, I think, in 
the House.
    I really thank all of you. Thank you for your patience, the 
time it took you to get here, the time to go home, the time to 
prepare, and for all the time you spent standing by here today. 
We really appreciate it. You helped us an awful lot.
    With that, we are adjourned.
    [Whereupon, at 5:50 p.m., the subcommittee was adjourned.]
    [Additional material submitted for the record follows:]

   Response for the Record by Hon. Charles D. Nottingham, Associate 
Administrator for Policy, Department of Transportation, Federal Highway 
                             Administration

                 QUESTION FROM HON. CHARLES A. GONZALEZ

    Question: Could you please clarify your understanding of the 
timeline governing the opening of the U.S. border to NAFTA-related 
truck traffic from Mexico?
    Anawer: I consulted with the Federal Motor Carrier Safety 
Administration (FMCSA), which has provided the following response:
    A precise timeline cannot be specified at this time. In DOT's 
Fiscal Year 2002 appropriations act, Congress specified more than 
twenty conditions that needed to be met before the Department could 
expend any funds for processing Mexican motor carrier applications for 
operating authority beyond the border commercial zones. Pub. L. 107-87, 
section 350. DOT satisfied the conditions of the appropriations act in 
November 2002. Pursuant to our NAFTA obligations, the President shortly 
thereafter lifted the moratorium on long-haul Mexican truck and bus 
operations in the United States and indicated his commitment to making 
access of commercial vehicles from Mexico to the full U.S. market a 
reality.
    In March 2002, FMCSA published interim final rules for motor 
carrier applications and safety monitoring regulations for Mexican 
motor carriers seeking authority to operate beyond the border 
commercial zones, reflecting changes that were made to comply with some 
of the conditions of section 350 of the FY2002 appropriations act.
    Mexican officials have indicated that they view these stricter 
regulations as being inconsistent with our NAFTA obligations. 
Consequently, the Department has been engaged with our counterparts in 
Mexico to clarify the requirements, address any concerns that may exist 
and determine how best to move forward with the implementation process. 
These discussions are ongoing, and no firm date has been established 
for their conclusion at this time.
                                 ______
                                 
                               U.S. Environmental Protection Agency
The Honorable Ralph M. Hall
Chairman, Subcommittee on Energy and Air Quality
Energy and Commerce
U.S. House of Representatives
Washington, D.C. 20515
    Dear Chairman Hall: Enclosed, for insertion into the hearing 
record, are the U.S. Environmental Protection Agency's (EPA) responses 
to follow-up questions from the March 2, 2005 hearing on the conformity 
provisions in H.R. 3. I hope this information will be useful to you and 
Members of the Committee.
    Thank you for providing EPA the opportunity to testify on this 
important issue.
            Sincerely,
                                       Jeffrey R. Holmstead
                                            Assistant Administrator
Enclosure

               QUESTIONS FROM THE HONORABLE RALPH M. HALL

    1. Mr. Holmstead, according to your testimony, you state air 
quality monitoring data show that from 1970-2003, concentrations of all 
six criteria pollutants have declined, including the four criteria 
pollutants that are most affected by the transportation sector: carbon 
monoxide, nitrogen dioxide, ozone (smog), and particulate matter soot. 
Can you state how the legislative provisions before us today will aid 
in further declining these four pollutants that most affect the 
transportation sector?
    Response: While all of these pollutants are declining as a result 
of control programs, vehicle activity continues to increase. Conformity 
assures that transportation activities do not result in increases in 
activity that would outweigh the pollution control gains that we have 
achieved. The purpose of conformity is to ensure that an area's planned 
transportation activities are consistent with or ``conform to'' the 
motor vehicle emissions level established by the state air quality plan 
before such activities can be federally funded or approved.
    EPA did not perform quantitative analyses on the Administration's 
proposed legislation or for the proposed legislative changes discussed 
above. Specific local area information that would be required to 
perform such analyses does not exist. When considering the targeted 
improvements to the conformity program proposed by the Administration, 
however, EPA considered a wealth of qualitative information. 
Legislative changes that do not modify the underlying purpose of 
conformity ensure that, on a regular basis, transportation planners 
demonstrate that emissions from the area's transportation network are, 
and will remain, consistent with emissions levels established in the 
area's air quality plan.

                QUESTIONS FROM THE HONORABLE ELIOT ENGEL

    1. Mr. Holmstead: I am very concerned about the increased incidence 
of asthma and other respiratory diseases related to air pollution. I 
was interested to learn from the testimony of one witness that a recent 
study in the Bronx, which I represent, shows asthma rates of one in 
three children, where the national rate is one in five children. 
According to this study, not only is the asthma hospitalization rate 12 
times above the national average, but the very high levels of pollution 
(measured as carbon) from diesel vehicles, appear to be associated with 
the very high asthma rates. Isn't Clean Air Conformity part of the 
solution to this problem? What assurances can you provide that the 
changes suggested by the Administration for changing this program will 
not have negative air quality impacts? Do you have analysis to support 
your conclusions?
    Response: EPA is also concerned about the high rates of asthma that 
exist in many urban areas across the country and the role that diesel 
emissions play. That is one reason EPA has championed both regulations 
and voluntary programs to reduce diesel emissions. We have set 
stringent emissions standards for both on-road and off-road diesel 
vehicles and equipment. Additionally, we are aggressively pursuing 
voluntary diesel retrofit programs and anti-idling programs and 
providing demonstration grants around the country, including in New 
York City.
    Transportation conformity has played and will continue to play an 
important role in ensuring that areas with poor air quality come into 
attainment of the national ambient air quality standards and maintain 
compliance with those standards in the future. The purpose of 
transportation conformity is to ensure that transportation plans, 
programs and projects do not create new air quality problems, delay 
attainment of the air quality standards or make an existing air quality 
worse. Transportation conformity will continue to accomplish its 
purpose with the changes that have been proposed by the Administration.
    EPA did not perform quantitative analyses for the Administration's 
proposed legislative changes, nor is there specific local area 
information that would be required to perform such analyses. When 
considering these targeted improvements to the conformity program, 
however, EPA considered a wealth of qualitative information. The 
legislative changes proposed by the Administration do not modify the 
underlying purpose of conformity which is to ensure that, on a regular 
basis, transportation planners demonstrate that emissions from the 
area's transportation network are, and will remain, consistent with 
emissions levels established in the area's air quality plan. By 
maintaining the underlying purpose of conformity, we are certain that 
areas can move forward with conforming transportation plans, programs 
and projects without causing new air quality problems, making existing 
problems worse or delaying attainment of air quality standards.
    2. I would also like to note that another study cited by a witness 
suggests that diesel exhaust may lead to developmental aberrations in 
children born to pregnant women in upper Manhattan and the South Bronx. 
For obvious reasons, these studies are very disturbing to me and my 
constituents. Are we sure that we can change the conformity requirement 
to require less frequent planning looking at shorter time periods and 
still have no impact on air quality? What is the basis for such 
conclusions? Isn't it equally possible that we should leave the Clean 
Air Act as it is and try harder to clean the air, taking great care 
with the effects that road building has on air quality?
    Response: EPA is working on many programs that will help address 
these types of health effects on children born in urban areas. We are 
pursuing a number of options, both regulatory and voluntary in nature, 
to reduce diesel emissions. In addition to regulations addressing both 
on-road and non-road diesel emissions, EPA has initiated several 
cooperative efforts including the diesel retrofit program, the Clean 
School Bus USA program and the Smartway Transportation Partnership.
    While we agree that we need to take great care with the effects 
that road building has on air quality, we believe that we can make 
these changes to the Clean Air Act's conformity requirements without a 
negative effect on air quality. Areas are still required to demonstrate 
that their transportation plans and programs are consistent with their 
air quality plans. Under the Administration's proposal, areas cannot 
add new regionally significant projects to transportation plans and 
programs until such a demonstration is completed.
    Changing the minimum frequency for conformity determinations 
responds to concerns raised by transportation stakeholders who 
indicated that they could prepare better more comprehensive 
transportation plans if they were given more time between required plan 
updates and associated conformity determinations. As noted in a April 
2003 GAO report on transportation and air quality planning 
requirements, a number of transportation planners indicated that having 
more time between required transportation plan updates and conformity 
determinations would allow them to: address transportation concerns 
such as relieving congestion and ensuring safety; think strategically 
about future alternatives for the transportation network; develop 
modeling and technical skills; obtain better planning information; and 
better coordinate plans and projects with other agencies and 
stakeholders, such as local land use agencies.
    Changing the time period covered by conformity responds to concerns 
raised by some transportation stakeholders that have indicated the 
disconnect between the time periods covered by air quality plans, 
usually 10 years or less, and conformity determinations, always at 
least 20 years, has caused unnecessary difficulty in demonstrating 
conformity in the past. We believe that the Administration's proposed 
change to the period covered by conformity both addresses the concerns 
raised by the transportation stakeholders while still requiring that 
they examine emissions far enough into the future to gauge the impact 
of their current transportation decisions. Additionally, the 
Administration's proposal to require that each conformity determination 
be accompanied by an emissions analysis for the last year of the 
transportation plan provides an early warning to the area in the event 
that emissions may increase in the future. Such an early warning would 
give areas the opportunity to address potential problems now rather 
further in the future.
    For all of these reasons, we believe these changes can be made to 
the Clean Air Act without sacrificing air quality gains.

            QUESTIONS FROM THE HONORABLE CHARLES A. GONZALEZ

    1. One of the challenges that local transportation planners have 
faced in regards to conformity is the ``mismatch'' between State 
Implementation Plans (SIPs) and Long Range Transportation Plans (LRTP). 
LRTPs are 20-year planning documents, while the SIP's timeframe depends 
upon the area's nonattainment status.
    H.R. 3 contains provisions to address this mismatch. As Mr. 
Clifford will explain in greater detail later this afternoon, H.R. 3 
would do a better job at harmonizing these two planning horizons than 
current law.
    Building upon the improvements in H.R. 3, what steps will the EPA 
take to work with the U.S. Department of Transportation to further 
synchronize the planning horizons required for EPA's air quality 
planning (namely, the State Implementation Plans) and the Metropolitan 
Transportation Plans?
    Response: Over the next few years, EPA will be working with DOT in 
the development of new State air quality implementation plans (or SIPs) 
for the 8-hour ozone and PM2.5 national ambient air quality standards. 
Federal coordination is especially important when State and local 
governments choose to address horizons that are longer than what the 
Clean Air Act requires to protect public health in order to facilitate 
conformity determinations.
    Additionally, EPA believes that flexibility is already provided by 
the Clean Air Act to allow States to decide for themselves whether a 
SIP revision to incorporate a longer horizon is necessary. States are 
in a better position to decide whether their SIP should establish a 
longer horizon than what is required by the Clean Air Act. Therefore, 
EPA would not want to require regular SIP updates or longer SIP 
horizons in areas where air quality improvements are occurring as 
anticipated by the SIP and conformity determinations are being made 
without difficulty. Many existing nonattainment and maintenance areas 
have been able to meet transportation conformity requirements without 
extending the horizons in their SIPs. Other areas have chosen to 
establish longer horizons in their SIPs to facilitate conformity 
determinations. Some of these areas include Las Vegas NV, Portland OR, 
Salt Lake City UT, Washington DC, and Albuquerque NM. We will continue 
to provide assistance to State and local officials that need to develop 
longer SIP horizons for conformity purposes.
    In addition, EPA and DOT have established a national Memorandum of 
Understanding (MOU) that provides a mechanism for regular consultation 
between the federal agencies on SIPs that are developed across the 
country. The MOU is intended to ensure the proper implementation of the 
transportation conformity rule's provisions through better and more 
efficient EPA and DOT consultation in order to facilitate timely 
conformity and SIP decisions.
    2. Could you please clarify your understanding of the timeline 
governing the opening of the U.S. border to NAFTA-related truck traffic 
from Mexico?
    Response: The Department of Transportation (DOT) has authority to 
address this issue. They have provided the following information in 
response:
          A precise timeline cannot be specified at this time. In DOT's 
        FY2002 appropriations legislation, Congress inserted provisions 
        that attached more than twenty conditions to the expenditure of 
        funds on the processing of Mexican motor carrier applications 
        for operating authority beyond the border commercial zones. DOT 
        satisfied the conditions of the appropriations act in November 
        2002. Pursuant to our NAFTA obligations, the President shortly 
        thereafter lifted the moratorium on long-haul Mexican truck and 
        bus operations in the United States and indicated his 
        commitment to making access of commercial vehicles from Mexico 
        to the full U.S. market a reality.
          In March 2002, Federal Motor Carrier Safety Administration 
        published interim final rules for its application and safety 
        monitoring regulations for Mexican motor carriers seeking 
        authority to operate beyond the border commercial zones, 
        reflecting changes that were made to comply with some of the 
        conditions of the appropriations bill.
          Mexican officials have indicated that they view these 
        stricter regulations as being Inconsistent with our NAFTA 
        obligations. Consequently, the Department has been engaged with 
        our counterparts in Mexico to clarify the requirements, assuage 
        any concerns that may exist and determine how best to move 
        forward with the implementation process. These discussions are 
        on-going and no firm date has been established for their 
        conclusion at this time.
    3. During the hearing, Mr. Holmstead discussed the concept that 
conversations with the Mexican government are underway to work with 
PEMEX to provide lower sulfur diesel fuel in the Mexican interior. He 
anticipated that such distribution would begin on roughly the same 
timeline as federal mandates in the United States for Ultra Low Sulfur 
Diesel (ULSD). What are the likely fuel specifications for the Mexican 
low sulfur diesel?
    Response: We understand that ULSD fuel being contemplated in Mexico 
will be comparable in terms of component specifications to the fuel 
being introduced in the United States, with appropriate changes to 
reflect the Mexican market. In terms of emissions benefits, the sulfur 
content is the critical specification given its impact on advanced 
exhaust aftertreatment technologies as well as direct particulate 
matter reductions associated with lower sulfur levels.
    4. It is not clear that simply providing low sulfur diesel fuel in 
the Mexican interior will reduce NOx emissions in existing engines. The 
United States' ULSD does not provide important NOx reduction benefits 
when used in current heavy-duty diesel engines. Rather, ULSD does 
provide important NOx reductions when used in heavy-duty diesel engines 
which are fitted with NOx reduction hardware requiring low sulfur 
diesel.
    On the other hand, Valero produces a diesel fuel product, TxLED, 
which qualifies as a ULSD and provides extra NOx reduction benefits 
when burned in existing heavy-duty diesel vehicle engines. If the 
Mexican low sulfur diesel fuel blend envisioned by PEMEX were blended 
to ULSD specifications, it may not perhaps produce meaningful NOx 
reductions in any trucks save those, for example, meeting US 
specifications consistent with US federal standards for heavy-duty 
highway engines and vehicles, to take effect by 2007 (2007 Heavy-Duty 
Highway Final Rule). Note that, in this case, such low sulfur diesel 
fuel sold in Mexico would allow penetration by US trucks fitted with 
advanced NOx reduction technologies; such vehicles could refuel in the 
Mexican interior without fowling their low NOx hardware. This would 
help open Mexico to travel by these advanced heavy-duty diesel trucks. 
If the Mexican low sulfur diesel fuel envisioned by PEMEX were blended 
to specifications like those of TxLED to provide NOx reduction benefits 
when used in all existing engines, such fuel would both open the 
Mexican interior to advanced cleaner trucks without fowling their low 
NOx hardware and provide immediate NOx reduction benefits when used as 
a fuel in all existing trucks.
    If PEMEX does produce a low sulfur diesel, what is the extent of 
the distribution region in Mexico and the likely timeline for 
implementation?
    Is there now a forum for discussion of such border affairs that 
could include our local governments and other entities involved in 
clean air planning?
    Response: The sulfur content of diesel fuel has a primary impact on 
engine-out emissions in its relationship to forming particulate matter, 
with reductions in sulfur leading to lower particulate matter levels. 
As you noted, the primary NOx benefits associated with ULSD are tied to 
the effectiveness of NOx aftertreatment technologies, which is 
maximized when sulfur poisoning due to fuel sulfur content is kept at 
15 ppm or lower levels. We do note that the conventional refinery 
processes that reduce the sulfur content of diesel tend also to 
increase its cetane number slightly. Increased cetane number has been 
correlated with lower NOx emissions. Thus, ULSD could indirectly 
produce some small NOx reductions in existing engines.
    TxLED (Texas Low Emissions Diesel fuel) is modeled on the 
California diesel fuel program, and in general would have higher 
cetane, lower density, and lower aromatics than conventional diesel 
found elsewhere in the U.S. If it also has sulfur at or below 15ppm, it 
may also qualify as ULSD. This fuel is estimated to produce NOx 
benefits of approximately 5% for pre-2007 model year engines, as a 
result of its cetane, density, and aromatics levels. As new engine 
standards phase-in, these benefits are expected to decrease.
    It is our understanding that Mexico is seriously contemplating 
introduction of ULSD fuel nationwide, on a schedule at least a year 
later than it is introduced in the United States. A final determination 
on the fuel implementation schedule in Mexico has not been made.
    The U.S.-Mexico Border 2012 Environmental Program created the Air 
Policy Forum to focus and concentrate on broad policy issues which 
require an ongoing dialogue between both countries. The Air Policy 
Forum is chaired by a Deputy Assistant Administrator from EPA's Office 
of Air and Radiation as well as the Director General of Air Quality 
Management and the Pollutant Registry from Mexico's environment 
ministry (SEMARNAT). Policy Forums, under the Border 2012 program, may 
elect to address policy issues through Task Forces and/or project-level 
efforts. Currently there are several local Task Forces in the border 
region meeting on a regular basis. These binational meetings afford the 
opportunity for local, state, tribal and federal representatives to 
participate in meaningful dialogue on air quality planning and 
management issues. Additionally, the Air Policy Forum has recently 
convened two stakeholder-based meetings to discuss a broad set of air 
quality issues in the border region. These forums have been an 
effective venue to address and discuss a host of air quality related 
issues, including the distribution and use of lower sulfur diesel fuel. 
For more information about the Air Policy Forum, including Task Force 
meetings, please go to www.epa.gov/border2012.

                QUESTIONS FROM THE MARCH 2, 2005 HEARING

    Congressman Gonzalez asked Mr. Holmstead for a date when the 
Nogales border-crossing truck study would be completed.
    Response: On March 10, 2005, EPA announced that they would provide 
$200,000 to test air pollution emissions from trucks along the U.S. - 
Mexico border near Nogales, Ariz. The air quality testing will begin 
around March 14 and take approximately three weeks. Once the data has 
been collected it will take approximately five months to assess the 
data and prepare a report. A final report is expected in August 2005. 
We will be happy to provide a copy of the final report when it is 
available.
    Congresswoman Solis asked Mr. Holmstead what has EPA done to reach 
out to under-served communities with regard to air quality issues and 
transportation conformity?
    Response: EPA is committed to ensuring that the transportation 
conformity program continues to be implemented effectively in all areas 
of the U.S., including those areas with under-served populations. We 
believe the Administration's proposal for the reauthorization of TEA-21 
includes changes to the conformity program that will yield better 
transportation and air quality results in all areas with air quality 
issues by allowing more reasonable period for planning and decision-
making. Furthermore, we have and will continue to be committed to 
providing timely training opportunities and technical assistance to 
both nonattainment and maintenance areas.
    For example, EPA, along with the Department of Transportation, have 
provided timely guidance and training to new ozone and fine particulate 
matter nonattainment areas before and as they implement the conformity 
program to support effective implementation. After the July 1, 2004, 
conformity rule addressing the new air quality standards was published, 
EPA conformity staff held a ``road show'' to explain the requirements 
of the rulemaking. Each EPA Region invited all the transportation and 
air quality agencies in their jurisdiction to attend these 
presentations. The training sessions were well attended by state and 
local air quality and transportation representatives, mostly from non-
attainment areas. EPA also conducted a tele-video conference as a means 
to allow those unable to attend the other sessions (due to lack of 
resources or scheduling conflicts) another opportunity to learn about 
the new conformity requirements. In the near future, EPA will offer 
additional training on the conformity requirements for fine particulate 
matter.
    Additionally, EPA's Office of Transportation and Air Quality is 
conducting a project in Baltimore with the Baltimore Urban League, 
Baltimore Metropolitan Council, the National Transportation Center at 
Morgan State University, and other stakeholders to help identify and 
develop practices and tools to undertake a comprehensive analysis of 
environmental justice and transportation-related issues in the 
Baltimore region. The goal of this project is to integrate 
environmental justice into transportation planning as an on-going and 
daily activity with meaningful community involvement throughout the 
process.
    All Americans deserve to be protected from pollution. However, 
EPA's Office of Air and Radiation (OAR) recognizes that, in some 
instances, minority and low income communities face a higher level of 
environmental risk than the majority population. Therefore, OAR is 
committed to addressing this issue by incorporating environmental 
justice into its activities and decision-making. The Office's goal is 
to achieve environmental justice by decreasing the burden on 
environmental risks to all communities as a result of improved air 
quality.
    OAR currently has an Environmental Justice Action plan that is 
designed to support efforts to develop and implement strategies and 
activities to integrate environmental justice into existing programs, 
to further highlight the valuable work we continue to do in the area of 
environmental justice, and to develop a more coordinated environmental 
justice implementation strategy. As part of this plan, OAR has provided 
funding for a number of specific air quality projects which have 
environmental justice-related issues. These programs are part of EPA's 
National Clean Diesel Campaign. Examples of such projects include:

     Diesel Retrofit Program. This Program is a non-regulatory, 
incentive based, voluntary program designed to pursue reductions in 
hydrocarbons, nitrogen oxides, carbon monoxide, and particulate matter 
from existing diesel vehicles and equipment by the installation of 
pollution-reducing technology and other actions, such as reduced 
idling.
    These programs promote the use of advanced emission control 
equipment reducing pollution from existing fleets. As part of these 
efforts, OAR is working to establish tribal community retrofit 
projects. One announced project involves a fleet of diesel vehicles 
from the Winnebago Tribes in Nebraska which will be retrofitted with 
pollution-reducing technology. An objective of this project is to 
address the disproportionate exposure risk for tribal children who live 
in this community.
    OAR is entering into retrofit funding cooperative agreements with a 
number of organizations. Competitive proposals for funding which 
address environmental justice issues in the areas served by the 
projects were required. The evaluation criteria included environmental 
justice factors.
     Clean School Bus USA. In April 2003, EPA launched ``Clean School 
Bus USA,'' a new children's health initiative aimed at reducing air 
pollution from school buses. This program is an outgrowth of EPA's 
Voluntary Diesel Retrofit Program. Across the country, 24 million 
children ride school buses spending a total of between 20 minutes and 
several hours per day on these vehicles. Unfortunately, older school 
buses can pollute up to six times more than buses using clean 
technology. Children are especially vulnerable to the effects of diesel 
emissions which can cause respiratory disease and exacerbate long term 
conditions such as asthma. Reducing pollution from school buses will 
help improve local air quality and reduce children's exposure to diesel 
exhaust. Children in environmental justice areas who suffer from asthma 
caused by diesel exhaust will benefit by the removal of one more asthma 
trigger.
     Smartway Transport Partnership. Under this voluntary program, 
another initiative is the National Transportation Idle Free Corridors 
Project which focuses on reducing emissions from long duration truck 
and locomotive engine idling at locations within urban areas 
(locomotive switch yards) and along major highway interstates (truck 
stops). Many of these locations are in environmental justice areas and 
will benefit from the achieved emissions reductions.

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