Atlanta
Regional Commission 40 Courtland Street,
NE Atlanta, Georgia 30303
Conformity History
for the Atlanta Non-Attainment Region
WORK IN PROGRESS
Tracy Clymer
Updated: June 25, 2002
November 15, 1993 – Georgia Environmental Protection
Division (EPD) submits 15% Rate of Progress (ROP) Plan to Environmental
Protection Agency (EPA) for approval.
Provides for at least 15% reductions of VOC from 1990-1996.
November 15, 1994 – EPD submits 9% ROP Plan to
EPA for approval. Provides for at least
a 3% per year reduction of NOx for 1997, 1998 and 1999.
June 28, 1995 – Atlanta Regional
Commission (ARC) adopts conforming 2010 Regional Transportation Plan (RTP) and
Fiscal Year (FY) 1996-2001 Transportation Improvement Program (TIP) - six-year
TIP, two three-year tiers. Conformity
based on VOC budget established in the 15% ROP Plan. ARC Resolution 18-95.
August 7, 1995 – United States Department of
Transportation (USDOT) conformity determination for 2010 RTP and FY 1996-2001
TIP.
June 17, 1996 – EPD submits revisions to
the 15% ROP Plan and 9% ROP Plan. NOx
budget established, 214.77 tpd.
Note:
ARC was unable to develop a FY 1997-1999 TIP that conformed to the NOx emission
budget established in the 9% ROP Plan.
FY 1997-1999 TIP was 21.93 tpd over budget.
September 25, 1996 – ARC amends the FY
1996-2001 TIP. ARC Resolution 22-96.
June 25, 1997 – ARC amends the FY
1996-2001 TIP. ARC Resolution 17-97.
Note:
Amendments were limited to projects considered exempt from transportation
conformity requirements.
December 30, 1997 – ARC adopts Interim TIP
(ITIP), FY 1998-2000 with contingencies (several project removals). ARC Resolution 32-97.
January 17, 1998 – Conformity lapse begins
due to failure to redetermine conformity of RTP within 18 months of the State’s
most recent State Implementation Plan (SIP) revision that establishes Motor
Vehicle Emission Budgets (MVEB), as required by 93.104(e) of transportation
conformity rule.
Note: FY 1996-2001 TIP, approved in August 1995 by USDOT, valid
for two years. TIP was to expire in
August 1997. However, on February 21,
1997 the Federal Highway Administration (FHWA) Georgia Division office extended
the expiration of the TIP until December 31, 1997, due to previous extenuating
circumstances of the 1996 Olympic Games (which concluded in early August 1996)
and contingent upon ARC having a new, conforming RTP by December 31, 1997. As of December 1997, ARC was not expected to
have a conforming RTP until April 1998, at the earliest. On December 22, 1997, FHWA and Federal
Transit Administration (FTA) again extended expiration of the TIP, upon request
of headquarters and in consultation with EPA, until January 17, 1998.
January 28, 1998 – ARC adopts FY 1998-2000
ITIP, contingencies met. ARC Resolution
2-98.
April 22, 1998 – ARC amends FY 1998-2000
ITIP. ARC Resolution 12-98.
July 22, 1998 – ARC adopts Interim 2020
RTP and ITIP amended to add fiscal year 2001, FY 1999-2001. ARC Resolution 25-98.
December 2, 1998 – FY 1999-2001 ITIP
amended. ARC Resolution 38-98.
January 20, 1999 – Georgians for
Transportation Alternatives (GTA) v. Shackelford[1]
filed. Plaintiffs challenge decisions
made to adopt, approve or fund certain highway projects on the grounds that
decisions violate Clean Air Act (CAA) provisions, the Transportation Equity Act
for the 21st Century (TEA-21), the National Environmental Policy
Act, and the Administrative Procedure Act.
March 18, 1999 – 9% ROP Plan Approved (64
FR 13348).
April 26, 1999 – 15% ROP Plan Approved (64
FR 20186).
June 18, 1999 – GTA v. Shackelford settled.
Settlement agreement requires extensive Peer Review of transportation modeling
process within 90 days of Board adoption of conforming TIP and RTP.
June 23, 1999 – ARC adopts FY 2000-2002
ITIP. ARC Resolution 17-99.
1999 – Development/refinement of
new draft plan for 2025 RTP and FY 2001-2003 TIP.
October 27, 1999 – ARC amends FY 2000-2002
ITIP. ARC Resolution 25-99.
October 28, 1999 – EPD submits Attainment
SIP to EPA for approval.
MVEB
established, NOx = 224.13 tpd, VOC = 132.21 tpd.
February 28, 2000 – MVEB adequacy announced
in Federal Register (65 FR 10490).
March 22, 2000 – ARC adopts conforming
2025 RTP and FY 2001-2003 TIP.
Conformity based on MVEB established in Attainment SIP submittal.
April 28, 2000 – Petition for Review filed
by GTA, et al[2]. with USEPA
in US Court of Appeals for the Eleventh Circuit. Petitioners seek review of MVEB adequacy determination.
June 8, 2000 – Petition to EPA for
Reconsideration of MVEB Adequacy Determination filed by Southern Environmental
Law Center (SELC) on behalf of GTA et. al[3].
June 14-16, 2000 – Peer Review of ARC
transportation modeling process. Peer Review
found transportation and emission models "state of the practice."
June 29, 2000 – Final written request to
EPA for a stay of the MVEB adequacy determination, pending review by 11th
Circuit Court.
July 5, 2000 – 60-day notice of intent to
sue sent by SELC to EPA Administrator.
July 10, 2000 – EPA counsel denies stay.
July 11, 2000 – Motion to Stay on
Expedited Basis, pending Courts ruling on merits of April 28 Petition, filed by
GTA et. al.[4] in 11th
Circuit Court of Appeals. Petitioners
request that the order state the MVEB may not be used by USDOT for purposes of
transportation conformity or TIP approval/implementation.
July 18, 2000 – Motion to Stay granted by
11th Circuit Court of Appeals, pending the Court’s decision on the
merits of the petition. Expedited
schedule issued for further proceedings.
July 18, 2000 – EPA concurs with positive
conformity determination.
July 25, 2000 – USDOT makes positive
conformity determination for 2025 RTP and FY 2001-2003 TIP.
Note:
Because the MVEB established in the October 1999 SIP submittal could not be
used due to litigation, the positive conformity determination was based on the
MVEB established in the 9% ROP Plan (last legally approved budgets).
August 8, 2000 – EPD requests that EPA
rescind the positive adequacy determination.
August 10, 2000 – Motion for Voluntary
Remand filed by EPA in 11th Circuit Court of Appeals. EPA requests that the Court remand the
matter back to the Agency so that the positive MVEB adequacy determination
could be withdrawn. EPA argues that the
MVEB adequacy determination is no longer relevant for any purpose considering
the conformity determination was made using previously established
budgets.
August 24, 2000 – Motion for Voluntary
Remand refused by 11th Circuit Court of Appeals.
August 30, 2000 – US Court of Appeals for
the District of Columbia decides that implementation of NOx SIP Call can not be
required before May 31, 2004
December 21, 2000 – EPD sends letter to EPA
withdrawing MVEB contained in the October 28, 1999 SIP submittal. EPD asks EPA to not consider budgets further
until State concludes work needed to submit a revised budget (speed study,
updated registration data, etc).
December 22, 2000 – Joint motion (EPD/EPA) filed
with 11th Circuit Court to stay further proceedings for review of
MVEB adequacy determination. Motion
based on agreement that MVEB established in October 28, 1999 SIP submittal are
no longer appropriate for purposes of making a transportation conformity
decision. Joint motion also requests
permission for EPA to withdraw finding of adequacy.
January 12, 2001 – 11th Circuit
Court grants EPA motion to withdraw adequacy determination.
January 26, 2001 – MVEB adequacy
determination withdrawn by EPA.
Withdrawal based upon EPD’s request that EPA not consider budgets until
further work is completed for budget revisions and NOx SIP Call Implementation
delay until 2004. (66 FR 7904)
January 17, 2001 – Sierra Club et. al.[5]
file suit in US District Court of Northern District of Georgia against EPA
Administrator for failure to reclassify Atlanta from “serious” to
“severe”. BUMP-UP SUIT.
Petitioners seek to require that EPA perform mandatory finding as to
whether Atlanta attained the ozone standard by Nov 15, 1999 under Section
181/182 of the CAA.
February 13, 2001 - Sierra Club et. al. v. ARC et. al.[6]
filed in US District Court of Northern District of Georgia. Suit seeks declaratory judgement based on
alleged violations of CAA conformity requirements, violations of TEA-21
Transportation Law, and public participation requirements for the 2025 RTP and
FY 2001-2003 TIP. In addition to
declaratory relief, plaintiffs enjoin advancement of 2025 RTP and FY 2001-2003
TIP.
April 5, 2001 – Sierra Club et. al. request
preliminary injunction to stop advancement of any projects in the 2025 RTP or
FY 2001-2003 TIP until federal lawsuit is heard.
May 28, 2001 - Declaration of Michael A.
Repogle for plaintiffs
May 29, 2001 - Declaration of Robert A
Johnston for plaintiffs
June 5 and June 6, 2001 – Injunction Hearing
June 15, 2001 – Judge Beverly Martin,
U.S. District Judge, denies request for injunction. Directs parties to file preliminary planning report and
scheduling order.
July 25, 2001 - Request for Production of
Documents and Interrogatories from plaintiffs.
July 31, 2001 - Sierra Club et.al. file
Motion for Partial Summary Judgement
August 27, 2001 - Defendants object to
Request for Production of Documents and Interrogatories.
January
8, 2002 –
USEPA publishes approval of MVEBs submitted with July 17, 2001 SIP submittal in
FR (67 FR 887).
January 18, 2002 – Judge Beverly Martin rules
in favor of defendants for February 2001 lawsuit. She finds that state and federal agencies did not violate the
Clean Air Act when they approved the 2025 RTP and FY 2001-2003 TIP in 2000. (Sierra Club v. Atlanta Regional
Commission, N.D. Ga., No. 1:01-CV-0428, 1/18/02).
January 23, 2002 – MVEBs become effective.
March 1, 2002 – Petitioners (see case below) submitted to EPA
a written request for a stay of MVEB adequacy determination.
March 7, 2002 – Sierra Club et. al v. USEPA[7]
filed in 11th Circuit Court of Appeals. MVEB
CHALLENGE. Petitioners ask that
the Court vacate the Final Rule approving the MVEBs submitted with the July 17,
2001 SIP submittal. Argument based on
extension policy to 2004. Petitioner’s
also file Petition for Review and accompanying Motion to Stay on an Expedited
Basis.
March 13, 2002 – Affadavit of Charles Krautler, ARC re:
Petitioners Petition for Review and accompanying Motion to Stay on an Expedited
Basis filed in 11th Circuit Court.
March 14, 2002 – Response of the State of Georgia in
Opposition to Petioners’ Motion for Stay on an Expedited Basis and Cross-Motion
by the State to Stay all Further Proceedings filed in 11th Circuit
Court.
March 14, 2002 – Respondent’s (EPA) Opposition to
Petitioners’ Motion for Stay and Cross-Motion for a Stay of the Proceeding
filed in 11th Circuit Court.
April 17, 2002 – 11th Circuit Court grants Motion
for Stay of MVEB.
May 7, 2002 – USEPA Approval and
Promulgation of Georgia 1-Hour Ozone Attainment Demonstration, Motor Vehicle Emissions
Budgets,
Reasonably Available Control
Measures, Contingency Measures and
Attainment Date Extension
(67 FR 30574)
Note: Trigger clock was
halted 21 days - from date of MVEB stay
(April 17) to date of SIP approval (May 7).
Note: In May 2002, EPA also
filed a Motion to Dismiss as Moot in regards to the Bump-Up lawsuit; the
argument being that the approval of the Atlanta Attainment SIP authorized the
extension of the attainment date from 1999 to 2004. More specifically, under Section 307 of the CAA the US District
Court does not have jurisdiction to review EPA SIP determinations, only Circuit
Court of Appeals have this authority.
Sierra Club has requested that the District Court retain jurisdiction
over this case in the event that the 11th Circuit Court overturns
EPA’s approval of the SIP (assuming that a petition challenging EPA’s approval
of the SIP will be filed, on an expedited basis, between June 18 and July 8,
2002 with the 11th Circuit Court-see comment below).
May 22, 2002 - Petition for Review of
the MVEB dismissed - clerk's dismissal only (EPA’s Motion to Dismiss as Moot
never docketed). Case already dismissed
for want of prosecution as a result of Sierra Club failure to file abstracts of
the administrative record.
June ? 2002 – 11th Circuit
Court reinstates the MVEB lawsuit, orders EPA to file brief on the merits of
the case by June 26, 2002. EPA will
refile its Motion to Dismiss as Moot.
Note: The MVEB stay is back
in place as a result of 11th Circuit Court reinstating the MVEB lawsuit. The MVEB cannot be used for conformity
analysis until the stay is lifted.
June 7, 2002 – Sierra Club asks EPA
Regional Administrator to withdraw or stay EPA’s SIP approval.
June 13, 2002 – Regional Administrator
denies request to stay or withdraw EPA’s SIP approval. EPA, therefore, expects that a petition
challenging EPA’s approval of the SIP will be filed, with Motion for an
Expedited Stay, between June 18 and July 8, 2002 (challenge must be filed within
60 days of publication of approval of the SIP in the Federal Register, deadline
is July 8). Petition will challenge
the extension of the attainment date to 2004.
June 26, 2002 - SELC for Southern
Organizing Committee, Georgia Coalition for Peoples Agenda vs EPA. Petition filed for Review of EPA's Approval
of the Georgia Attainment SIP. Motion
filed for Expedited Stay of EPA's Approval with 11th Circuit Court
July 2, 2002 - Sierra et al vs ARC, GDOT, USDOT. Appeal of 2/28/02 Final Judgment. Oral arguments to be rescheduled after August with 11th
Circuit Court.
July 2, 2002 - Sierra vs EPA. DC Court vacated (removed approval of) revised
SIPs for DC area. Basis of argument -
EPA not authorized to approve revised SIPs that extend area's attainment date.