The Clean Air Act requires, among other things, that Federal and federally assisted transportation projects conform to the air quality goals and priorities established in a state's air quality implementation plan (SIP) for attaining the Clean Air Act air quality standards. For programs administered by the Federal Highway Administration (FHWA) and the Federal Transit Administration (ETA), we determine whether transportation projects conform to a state's SIP by comparing the total expected air quality emissions from the aggregate of projects contained in the transportation plan and transportation improvement program (TIP) with the provisions of the SIP. The Environmental Protection Agency (EPA), with Department of Transportation (DOT) concurrence, has issued transportation conformity regulations that implement this requirement.
In the EDF decision, the court invalidated portions of the EPA regulations, including (1) a provision that allowed projects that had been found to conform and had completed the National Environmental Policy Act (NEPA) process (previously referred to as grandfathered projects) to continue to receive FHWA and FTA approvals and funding commitments in the absence of a conforming plan and TIP, and (2) a provision that permitted the use of "submitted SIP emissions budgets" to make conformity determinations. This means that most Federal and federally assisted FHWA and FTA projects may not be approved in air quality nonattainment or maintenance areas which do not currently have a conforming plan or TIP, or in which the plan and TIP were found to conform on the basis of a submitted emissions budget (unless, and until, EPA has approved the budget or found it adequate).
The EDF decision held that projects that had previously been found to conform and had completed the NEPA process could not be approved or funded in nonattainment and maintenance areas that do not have a currently conforming plan and TIP. However, projects that are exempt from the conformity process and also transportation control measures (TCMs) that are included in an approved SIP may still be advanced. In addition, it is our view that projects that have received final funding commitments for construction (plans, specifications, and estimates (PS&E;) approval, full funding grant agreement (FFGA), or an equivalent approval or authorization) before a conformity lapse or the court decision, need not be stopped. Under guidance issued on June 18, 1999, 63 construction phases valued at $823 million were allowed to proceed. But, if subsequent phases of such projects require FHWA or FTA approval (that is, projects that are to be completed in stages and receive PS&E; or equivalent approval one stage at a time), such approval must be withheld until there is a valid conformity determination for the area of the project. In addition, we cannot continue to fund active design and right-of-way acquisition projects, with certain exceptions, during a conformity lapse.
The obvious question is, what areas will be affected by this decision? The answer to this question changes over time. Because areas move in and out of conformity, the list of lapsed areas is dynamic. Often, areas are able to re-establish conformity relatively quickly, in a matter of months; other areas can take longer. Historically, we have had as many as 21 areas in lapse at any one time. After the court decision on March 2, ten (10) areas were in lapse.
As of the week of July 12, we estimate that there are seven (7) areas of the country that do not have currently conforming plans and Tips. These 7 areas are:
Ashland, KY
Atlanta, GA
Kansas City, KS and MO
Monterey, CA
Paducah, KY
Raleigh, NC
Santa Barbara County, CA
We estimate that there are approximately 158 surface transportation projects in these areas that we had considered "grandfathered" under the now-invalidated EPA regulation, and which now may not be approved for federal funding. These projects are valued at about $1.96 billion. This includes approximately 73 projects in the design phase valued at $242 million and 59 projects undergoing right-of-way acquisition valued at $289 million that are currently being delayed. It should be noted that of the $1.96 billion figure, $684 million worth of projects are in the Atlanta area.
How long it will be before we can approve these remaining projects will depend on how long it takes for these areas to make valid conformity determinations. We expect these areas to re-establish conformity by the end of this year, with the exception of Atlanta. The Atlanta Regional Commission (ARC) projects that conformity will be re-established by March, 2000. We will work diligently with EPA, MPOs, state departments of transportation, and other relevant parties to assist these areas in re-establishing conformity as soon as possible.
There are also two (2) other areas in the country, as of July 12, where current conformity determinations were based on submitted emissions budgets which were not found adequate or approved by EPA. In these areas, as a result of the EDF decision, only construction projects that had received PS&E; approval, FFGA, or an equivalent approval or authorization prior to the decision, may proceed. No new FHWA or ETA approvals may be granted until conformity is redetermined using an appropriate conformity test. These two (2) areas are:
Longmont, CO
Searles Valley portion of San Bernardino County, SCAG, CA
If the two areas do not re-establish conformity within the next three months, two additional projects, worth less than $1 million, could be affected. However, these additional areas are expected to re-establish conformity by this September.
The future effects of the EDF decision could be felt in any nonattainment or maintenance area which becomes unable to make conformity determinations because of the problems with the area's transportation planning processes or SIP development process. Since these problems are usually state or local in nature, it is difficult to predict how many such areas there will be, if any. As a result of the EDF decision, in any such "conformity lapse" areas, FHWA and ETA could not continue to approve or fund projects during a lapse, unless the construction phase of the project had received PS&E; approval, FFGA, or an equivalent approval or authorization prior to the lapse, or was otherwise exempt from conformity. We will work with relevant stakeholders to resolve potential problems as soon as possible.
DOT has been working closely with EPA during the EDF litigation and since the court issued its March 2 decision. We believe that we can administer our programs consistent with the court's ruling by working closely with EPA, both on revising the EPA's Clean Air Act implementing regulations and on state-by-state or area-by-area bases to address lapses in conformity determinations.
FHWA, FTA, and EPA work closely with state and local officials on a regular basis. When the agencies learn that a community is facing a conformity determination lapse, the agencies will meet 6 months prior to the anticipated lapse date and jointly evaluate the potential consequences of the lapse, assess any concerns, and try to resolve issues that would lead to the conformity lapse. The FHWA, FTA, and EPA will meet at least 90 days before a conformity lapse to determine which projects should receive funding commitments before the lapse, which projects must be delayed, and what recommendations to state and local officials would be useful.
When a conformity lapse is imminent, FHWA and FTA, after consultation with EPA, will notify the Governor, or the Governor's designee, immediately to inform the Governor of the consequences of the lapse and to suggest potential solutions to minimize disruptions to the transportation programs in the respective nonattainment and maintenance areas.
The FHWA and FTA are continuing to work with EPA to develop revised conformity regulations.
Again, we appreciate the opportunity to testify before the Committee on this important matter, and look forward to working with you as we continue to address the need to advance important transportation programs and projects while improving the air quality of areas, states, and the nation.