The Associated General Contractors of America (AGC) is the largest most diverse trade association in the construction industry. The association's 33,000 members include 7,500 of the nation's leading general construction contractors engaged in the construction of highways, bridges, tunnels, airport runways and terminals, buildings, factories, warehouses, shopping centers and both water and wastewater treatment facilities. AGC members perform construction contracts for states and other recipients of Department of Transportation (DOT) funding and are, therefore, directly impacted by changes in administration of the federal-aid highway program. AGC is pleased to provide the following comments on Clean Air Act Transportation Conformity requirements.
Clean Air Progress
Americans have made great progress in cleaning the air. Over the past 30 years national emission trends have been declining. All of the years throughout the 1990s have had better air quality than any of the years in the 1980s, demonstrating a steady trend of improvement. Air quality has improved nationwide primarily because motor vehicle emissions have decreased substantially even as vehicle travel has increased rapidly. From 1980 through 1998, overall motor vehicle emissions of volatile organic compounds (VOC) was reduced 41 percent, emissions of nitrogen oxides (NOx) were reduced 10 percent, and carbon monoxide emissions were reduced 35 percent. This improvement came despite a 72 percent increase in travel during that period.
These reductions are the result of an array of cleaner fuels that have virtually eliminated lead and other pollutants and reformulated gas that reduce smog and tailpipe emissions. New engine technology and vehicle design and construction have reduced tailpipe emissions in the average car in use today by 95 percent compared to the average car in use in the 1960s.
EPA studies show that air quality by 1996 had improved to the point that 80 percent of Americans lived where air quality met the standards for six criteria air pollutants, nearly double the amount from 10 years earlier. Since 1996 air quality has continued to improve. In the past ten years, the average number of days the air in major metropolitan areas failed to met federal ozone (smog) standards has been cut in half. Violations of the national standards for carbon monoxide have been virtually eliminated. U.S. Environmental Protection Agency (EPA) studies estimate that an additional 32 million tons of emissions per year (22 percent) will be eliminated between 1997 and 2015 because of better motor vehicle technology. All of this progress despite significant increased motor vehicle usage.
Overview of Transportation Conformity
Transportation conformity provisions under the Clean Air Act (CAA) attempt to coordinate transportation planning and air quality planning. The CAA requires metropolitan areas with air quality problems to demonstrate that future transportation projects will not impede the area’s ability to attain air quality standards established by the Act. Under the CAA the EPA is required to establish national Ambient Air Quality Standards (NAAQS) for six criteria pollutants. If an area exceeds the federal standard for any one of these six pollutants, it is designated as a nonattainment area. States must submit State Implementation Plans (SIPs) detailing how these nonattainment areas will be brought into compliance. The SIP typically includes a specific motor vehicle emissions budget (MVEB) capping emissions from transportation sources. Nonattainment areas are then required to demonstrate, using various calculations and models, that car and truck emissions associated with current and future road, highway, and transit projects listed in the area’s transportation plan are below this budget. This demonstration is called transportation conformity. If the metropolitan area cannot demonstrate that car and truck emissions from new roads and highways are below the motor vehicle emissions budget, the area falls into a transportation conformity “lapse” where many new road and transit projects cannot move forward.
Transportation Conformity Requirements
Under the Federal-Aid Highway Act (as amended in ISTEA and TEA-21), metropolitan planning organizations (MPOs) for each urban region develop a long-term regional transportation plan and a short term transportation improvement plan (TIP). Section 176 of the CAA links air quality planning with transportation planning by requiring both of these transportation plans to match, or “conform” to the SIP. Transportation conformity must be demonstrated once every 3 years, although numerous other triggers render this requirement almost meaningless. For example, conformity must be demonstrated every time a significant change is made to a transportation plan and within 18-months of a State Implementation Plan modification that effects the motor vehicle emissions budget. This overabundace of conformity triggers means that planning organizations are continually performing overlapping demonstrations. The resulting web of incongruous deadlines impose a minefield of procedural traps for nonattainment areas to fall into. As Judge Williams in the U.S. Circuit Court of Appeals for D.C. wrote, “the Act’s conformity requirements are astonishingly confusing, and could if interpreted as stringently as possible seriously disrupt state and local transportation planning.”
Ramifications of Failing to Demonstrate Conformity “Lapse”
One of the principle disruptions to state and local transportation planning from transportation conformity requirements is the consequences of a conformity “lapse”. A conformity “lapse” occurs when a conformity determination for a transportation plan or TIP has expired and is no longer valid. A conformity lapse may be caused by several situations such as: (1) not meeting the required 3-year period for conformity redetermination of a transportation plan or TIP; (2) certain State Implementation Plan consequences; (3) not redetermining conformity within 18 months of a specific State Implementation Plan modification; or (4) a potentially successful citizen suit that invalidates the conformity determination or the motor vehicle emissions budget on which the conformity determination was based.
Only certain types of projects can advance during a conformity lapse. FHWA will not fund active highway design and right-of-way acquisition projects during a conformity lapse. Only those highway projects which have received full funding and/or approval prior to the conformity lapse may continue. A conformity lapse applies to both road and transit projects. Moreover, lapses impact both federally funded and non-federally funded but regionally significant projects (since these projects require federal approval).
Conformity lapses have caused significant problems across the country. In Atlanta, for example, a conformity lapse suspended over $700 million in much needed road work. In the Southern California Air Quality Management District, $0.5 and $2 billion in transportation projects were subject to postponement during a 1998 and 2001 conformity lapse, respectively.
Conformity lapses have several deleterious impacts. Financially, delays increase project costs due to normal cost escalation factors and contractors needing to reschedule planned work. Costs also increase due to delayed traffic congestion relief (for example, the Houston-Galveston Area Council estimates that traffic congestion costs the Houston area approximately $2 billion per year). Delays due to conformity lapses also affect road safety. According to the U.S. DOT, poor road conditions or obsolete road and bridge alignments are a factor in 12,000 highway-related deaths each year—that’s four times the number killed in fires and a third more than die annually of asthma and bronchitis combined.
Conformity lapses are almost never caused by a nonattainment area building too much transportation infrastructure, but are almost always caused by procedural problems with the timing of multiple deadlines for revising the motor vehicle emissions budget, revising the transportation plans, and/or lawsuits.
Currently there are 142 nonattainment areas which contain 414 counties nationwide that are out of compliance for ozone alone with more out of compliance for other pollutants. An additional 194 areas which include 656 counties may soon be in nonattainment status when EPA imposes new standards for ozone and particulate matter.
Conformity Process Does Not Improve Air Quality The transportation conformity process is expensive and burdensome and has not been shown to have a significant impact on improving air quality. The United States General Accounting Office (GAO) in testimony before the Committee on Environment and Public Works, U.S. Senate, July 30, 2002 (GAO-02-988T p. 10), said that, “Only 31 percent of the planners responding to our survey found the process of demonstrating conformity to be effective in helping their areas achieve air quality goals (40 percent found it to be ineffective)." GAO also stated that, "[T]he current clean air and surface transportation requirements and programs do not directly encourage communities to consider more innovative transportation projects or alternative land development strategies as a means to reduce emissions. Nor do they encourage communities to take action that will preserve the clean air that they still enjoy." (Id. at 15-16).
In addition, the conformity process is being used as a means to prevent transportation improvement projects from being built, not because of their impact on air quality but as a tactic to prevent any transportation improvement project from being undertaken. Transportation project opponents use legal challenges and other maneuvers to disrupt the planning process and stop project construction. This activity undermines safety improvements, increases the cost of the projects significantly and can undermine clean air objectives. Delaying or and stopping transportation improvements has no beneficial impact on air quality and can have a negative impact by keeping congestion relief projects from moving forward. Idling in traffic significantly increases air pollution. Eliminating bottlenecks and traffic congestion can reduce carbon monoxide emissions by as much as 45 percent and ozone forming VOCs by 44 percent. Automobiles operate at a higher efficiency at higher speeds and emission rates for major air pollutants increase at slower speeds. Congress should reconsider whether the costs associated with the transportation conformity process result in equal benefits.
Separate Transportation and Air Quality Planning
Steps should be taken to improve the process and keep it from being used merely as a means for delaying necessary transportation improvement projects as follows:
· Transportation planning and air quality planning should not be linked. There is no air quality improvements that result from the conformity process.
Reducing the Number of Conformity Triggers and Increasing the Time Between Conformity Determinations
· Non-attainment areas are continually and exhaustingly performing transportation conformity demonstrations. Although the Clean Air Act requires a conformity demonstration once every three years, numerous other triggers render this requirement meaningless. Under EPA’s rules, non-attainment areas must demonstrate conformity each time EPA proposes or approves a control strategy implementation plan revision which affects an existing motor vehicle emissions budget, each time the EPA modifies a control measure that impacts the motor vehicle emissions budget, and each time a transportation control measure is added, modified, or deleted. Conformity demonstrations are also needed each time the metropolitan planning organization needs to add or modify a project in its transportation plan (since a road or transit project cannot generally move forward unless it is specifically included in a conforming transportation plan). This overabundance of conformity triggers means that planning organizations are continually performing overlapping demonstrations, wasting valuable time and resources. As the GAO stated in its recent assessment of the transportation conformity requirements: “According to DOT program managers, some planners have found the requirement to update their transportation plans and meet the conformity test at least every 3 years to be too burdensome. Because of the complexity and time involved in preparing the plan and demonstrating conformity, it can take some areas more time than 3 years to complete their plan updates, after which time they need to begin the update process all over again. The tight time frame inhibits them from devoting their attention or resources to developing more strategic transportation solutions or adopting new and better models for assessing emissions and analyzing transportation plans, among other things.” 
· Transportation conformity demonstrations are a prolonged and arduous process. The metropolitan planning organization (typically a local council of governments) must conduct extensive emissions modeling and inventory work. All conformity demonstrations must go through an interagency consultation process and other agency scrutiny that involves EPA, the Federal Highway Administration (FHWA), and state agencies. Conformity demonstrations must also go through public notice and comment and public hearing procedures.
· Once a conformity demonstration is complete (often after more than a year and hundreds of thousands of dollars worth of work), each conformity demonstration becomes subject to a potential lawsuit from environmental organizations and others who are unhappy with such issues as urban sprawl, the construction of certain road projects, or the area’s mass transit choices. Transportation conformity lawsuits have occurred across the country; including Houston, Atlanta, Sacramento, San Francisco, and Salt Lake City. These suits force local governments or other interested parties to mount legal defenses which are expensive and time consuming. The costs of these legal defenses take funds that could otherwise be used to provide services to the public. The potential repercussions of a successful lawsuit or repercussions for failing to demonstrate conformity are the withholding of federal highway funding or the halting of road and transit projects, including those that do not receive any federal funding.
· For the above reasons, the number of conformity triggers should be reduced to one, whether that one trigger be a specific date in time or the time at which the transportation plan is approved.
· In addition to reducing the number of conformity triggers, the length of time between mandatory conformity demonstrations should be increased from 3 years to at least 5 years. As stated above, many metropolitan planners are already having trouble meeting the 3 year requirement. Since most road projects take at least 15 to 20 years to plan and construct, projects will still have several opportunities to be included in a conformity demonstration.
· Along with reducing the number of conformity triggers and the length of time between conformity determinations, a method is needed whereby metropolitan planners can add or modify a road or transit project (to some degree) without the need for a full conformity demonstration. Currently, planning organizations must essentially go through a full conformity analysis in order to make certain changes to a road or transit project. This exercise is unnecessary and a waste of valuable local, state, and federal resources.
· Up until 1999, transportation improvement projects that had reached a certain stage in the review and approval process could continue through the design and construction phase despite a conformity lapse. These projects were said to be "grandfathered." A Federal Court ruled in 1999 that EPA did not have the statutory authority to permit grandfathering. State departments of transportation were put under a constraint on what activities they can undertake during a conformity lapse. As a result, $700 million in transportation projects in Atlanta were halted and projects throughout the country have been threatened.
AGC recommends that transportation projects that are included in a conforming plan and TIP should be allowed to move forward to construction if an area later has a conformity lapse. Project design and right of way acquisition should be allowed to continue during a conformity lapse.
Use of the Latest Planning Assumptions
* The Clean Air Act requires that all conformity demonstrations be based on the latest planning assumptions. Specifically the Act states that “the determination of conformity shall be based on the most recent estimates of emissions, and such estimates shall be determined from the most recent population, employment, travel and congestion estimates as determined by the metropolitan planning organization or other agency authorized to make such estimates.”
* Conformity problems can result if modeling assumptions change between the time the motor vehicle emissions budget from the State Implementation Plan was created and the time that conformity must be demonstrated. For example, if a nonattainment area sets a motor vehicle emissions budget at 156 tons of NOx per day and later realizes, prior to its next conformity determination, that the number should really be 165 tons per day (because of new inventory information regarding the number of sport utility vehicles in the area), the metropolitan area could have a difficult time demonstrating conformity to the lower number. This problem could lead to a transportation conformity lapse because it would take several months to revise the motor vehicle emissions budget through the notice-and-comment rulemaking process.
* The Clean Air Act should be clarified to stipulate that the most current modeling assumptions are those assumptions used in the creation of the latest motor vehicle emissions budget. In the alternative, the Act should be amended to include a time-delay before new planning assumptions must be used in a conformity determination.
Ramifications of Conformity Failure vs. SIP Failure
* When an area fails to demonstrate conformity and enters into a conformity lapse, the consequences of the lapse are immediate. On the other hand, if an area fails to submit or implement an adequate State Implementation Plan, there is a range of time, a minimum of 18 to 24 months, before sanctions are imposed. This disparate treatment is not warranted. Transportation planners should also have time to remedy problems before sanctions are imposed. Most of the time conformity lapses occur only for a few short months due to a technical or procedural error. Rather than the current “gottcha” system, planners should be given a short period of time to rectify minor problems before public transportation projects are halted. This would save communities millions of dollars without negatively impacting air quality (since roads and highways in the TIP are not even built, let alone in operation).
Limit Law Suits
· Special interest groups have successfully used legal challenges to advance no-growth strategies. They have demonstrated the ability to delay and in some cases curtail development of significant transportation projects throughout the country. Limits should be placed on “citizen suits” filed under the authority of the CAA.
AGC strongly urges Congress to reconsider the impact of the transportation conformity process on motorist safety, economic development and even air quality improvement.
For further information contact Brian Deery, Senior Director, Highway Division, AGC of America, 703-837-5319, email@example.com
Leah Wood, Environmental Counsel, Environmental Law, AGC of America, 703-837-5332,
 Environment Protection: The Federal Government Could Help Communities Better Plan for Transportation That Protects Air Quality, United States General Accounting Office, Testimony Before the Committee on Environment and Public Works, U.S. Senate, GAO-02-988T, July 30, 2002, p. 11.
 42 C.F.R. § 7506.