oversight

Air Pollution: EPA Needs More Data From FHwA on Changes to Highway Projects

Published by the Government Accountability Office on 1990-03-20.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                            United   States   General   Accounting   Office

GAO                         Report to the Chairman, Subcommittee.‘, T.
                            on Oversight and Investigations,
                            Committee on Energy and Commerce,
                            House of Representatives

March   1990
                            AIR POLLUTION
                            EPA Needs More Data
                            From FHWA on
                            Changes to Highway
                            Projects




                        BESTRICTED--      Not to be released outside the
                        General Accounting OfWe unless specificaJly
                        approved by the Office of Congressional
                        Relations.



GAO/RCED-90-72   ~~~
                   ~-
GAO
                   United States
                   General Accounting  Office
                   Washington, D.C. 20648

                   Resources, Community,   and
                   Economic Development    Division

                   B-217221

                   March 20,199O

                   The Honorable John D. Dingell
                   Chairman, Subcommittee on Oversight
                     and Investigations
                   Committee on Energy and Commerce
                   House of Representatives

                   Dear Mr. Chairman:

                   Your May 31,1988, letter expressed concern that the Environmental
                   Protection Agency (EPA) and the Department of Transportation were
                   inadequately addressing the impacts of transportation and highway pro-
                   grams on air pollution and that these impacts were becoming greater,
                   particularly in cities such as Denver, Colorado; Phoenix, Arizona; and
                   Los Angeles, California. In response to your request and subsequent dis-
                   cussions with your office, this report addresses the implementation of
                   the Clean Air Act requirement that federally funded highway projects
                   conform to state implementation plans (SIPS)designed to reduce air pol-
                   lution. Specifically, we examined how conformity was determined and
                   the roles of the Department’s Federal Highway Administration (F’HWA)
                   and EPAin making this determination.


                   The Clean Air Act prohibits FHWAfrom approving any activity that does
Results in Brief   not conform to EPA-approved SIPS,but it does not specify how conform-
                   ity should be determined. EPAand FHWAdisagree on whether air quality
                   analysis of individual highway projects is needed to determine
                   conformity.

                   An air quality analysis of the total highway system, including existing
                   roads and planned projects is performed during SIPdevelopment. FHWA
                   believes this analysis is sufficient and that subsequent analyses of indi-
                   vidual projects are not necessary to determine conformity. It maintains
                   that highway programs conform if they appropriately schedule and
                   implement SIPmeasures designed to control transportation-related pollu-
                   tion. On the other hand, EPA believes that in addition to the analysis
                   made when the SIPis developed, more air quality analysis of major indi-
                   vidual highway projects should be performed before construction begins
                   when the projects are better defined.

                   Although our review of the act indicates that FHWAis acting within its
                   authority when it declines to perform the additional air quality analysis,


                   Page 1                             GAO/ECED9@72 Air Pollution   and Highway   Projects
-.   -
             E217221




             EPA’Sassurance that Clean Air Act goals are achieved could be enhanced
             if it had information on the extent to which plans and assumptions
             made during the SIPformulation have held true. However, the local plan-
             ning agencies did not consistently provide EPAwith information on
             changes in plans and assumptions, such as changes to construction
             projects or progress in implementing transportation control measures,
             which may have affected air quality. Reporting program information to
             EPAis not part of the conformity determination, per se. However, we
             discussed our observations with EPAand F‘HWAofficials, and EPAofficials
             agreed that such information would be useful, and FHWAofficials were
             willing to provide more information to EPA.


             The Clean Air Act required states to prepare SIPSdetailing the strategies
Background   to attain and maintain health-related primary air quality standards for
             six pollutants. Carbon monoxide and ozone-two of the six-are by-
             products of motor vehicle use. The SIPprocess is a cooperative effort
             involving EPA,state governments, and local jurisdictions. Elements of the
             process include inventorying emission sources, identifying needed con-
             trol measures, adopting and enforcing these measures, and reporting
             and evaluating progress. Clean Air Act amendments currently under
             consideration by the Congress include provisions for additional state-
             implemented measures and strategies to be included in EPA-approved SIPS
             to attain Clean Air Act goals.

             Metropolitan planning organizations, which are responsible for urban
             transportation planning, also participate in the SIPdevelopment process
             at the local level. Since motor vehicles are a significant source of hydro-
             carbons, which contribute to ozone pollution, and of carbon monoxide,
             the planning organizations help compile emission inventories of these
             pollutants by estimating vehicle travel for their areas. They also iden-
             tify SIPcontrol measures which, if implemented, would reduce pollution
             from transportation sources. These measures can include increasing
             transit rider-ship, improving traffic signalization, constructing bus and
             car pool lanes, and other steps to reduce vehicle travel and traffic
             congestion.

             The transportation planning responsibilities of metropolitan planning
             organizations include preparing a comprehensive local transportation
             plan and an annual transportation improvement program. The annual
             program identifies and schedules highway and transit projects that local
             officials agree could be federally assisted. These annual programs
             include proposed funding for highway construction projects, but they


             Page 2                           GAO/RCEDDO-72   Air Pollution   and Highway   Projects
                          may also include funding to implement SIP transportation control meas-
                          ures. For example, an annual program may include funding for a
                          ridesharing program to accomplish a SIPtransportation control measure
                          goal of increasing vehicle occupancy levels and reducing traffic
                          congestion.

                          Appendix II discusses the SIP and transportation planning processes in
                          more detail, and Appendix III lists selected transportation control meas-
                          ures included in SIPSfor the metropolitan areas included in our review.


                          Section 176(c) of the Clean Air Act provides that no federal entity may
EPA and FHWA              support any activity and that no metropolitan planning organization
Disagree on Whether       may approve any project that does not conform to the applicable SIP, but
Air Quality Analysis Is   it does not indicate specifically how conformity is determined. This is
                          important because EPA and FHWA have a long-standing and unresolved
Needed for Highway        disagreement over whether air quality analysis of individual highway
Projects                  projects after SIP development is needed to ensure conformance or
                          whether transportation plans as a whole can be found to conform.

                          EPA believes that in addition to the analysis performed during SIP devel-
                          opment, FHWA should require more air quality analysis of highway
                          projects and programs to comply with section 176(c). An EPA official told
                          us that FHLVA should require further analysis of major projects before
                          construction, particularly for carbon monoxide impacts. He also told us
                          that highway agencies should determine the areawide hydrocarbon
                          impact of transportation improvement programs each year and that EPA
                          is concerned that changes in project scope, such as adding lanes, are not
                          adequately assessed.

                          FHWA  believes that the overall highway system operation and total vehi-
                          cle use and their air quality impacts should be considered when SIPS are
                          developed or revised. Under the current F’HWA regulations, individual
                          projects are not required to be analyzed or approved for conformity if
                          the transportation plan and annual improvement program conform. The
                          act gives FHWA the ultimate authority to determine whether the activity
                          conforms to the applicable SIP or not. Appendix V discusses the author-
                          ity for determining conformity in more detail.

                          During our review, we found that the planning organizations for Denver,
                          Phoenix, and Los Angeles considered the impact of highway projects on
                          emissions in developing the regional elements of their SIPS. According to
                          organization officials, the physical characteristics of existing and


                          Page 3                          GAO/RCED!%72   Air Pollution   and Highway   Projects
                    B217221




                    planned highways, such as the number of lanes, along with other data,
                    such as estimates of future population and employment, were used in
                    complex models to forecast future traffic levels. These estimates were,
                    in turn, included with a variety of data in other models that estimated
                    areawide emission levels.

                    The impacts on air quality of individual projects were not identifiable
                    because project data was just one of many factors considered in the
                    models used in SIP development. However, we found some indication of
                    the impact of highway projects on an area’s air quality. For example, a
                    1979 Los Angeles planning organization study reported that over 500
                    planned highway and other transportation projects would reduce both
                    hydrocarbons and carbon monoxide by less than 1 percent. We also
                    spoke with Connecticut highway officials because they are required by
                    their SIP to determine annually how planned highway projects will affect
                    state hydrocarbon levels. They told us that the analyses they have con-
                    ducted over a g-year period have consistently indicated that highway
                    projects improve state air quality by reducing congestion.

                    Conceding that projects may temporarily reduce emissions by relieving
                    traffic congestion, EPA officials are concerned that, in the long run, the
                    increased capacity resulting from highway construction will encourage
                    more driving, which could increase pollution. However, according to
                    FHWA officials, project traffic forecasts do not show induced travel to be
                    a significant factor.


                        officials also were concerned that highway projects might have
EPA Not Aware of    EPA
                    changed or expanded after SIPS were developed, so their most recent
Changesto Highway   impact on air quality would not have been considered. Our analysis of
Projects            planned projects in the three metropolitan areas indicated that some
                    changes, involving both project expansion and construction delays, in
                    fact occurred. Since project changes were not systematically tracked and
                    reported to EPA, it had no basis to identify the changes and their effect
                    on SIP clean air objectives.

                    Five of 23 major highway projects considered in the 3 cities’ 1982 SIP
                    revisions were constructed on a larger scale than planned. In addition,
                    two major projects were constructed that were not considered in the SIP
                    analyses. Of these seven projects, five increased highway capacity by
                    adding freeway lanes, one extended a lane project by one mile, and one
                    involved the construction of an unplanned freeway segment. On the



                    Page 4                          GAO/RCED-9@72   Air Pollution   and Highway   Projecta
                        B-217221




                        other hand, 13 of the other projects included in the SIPS were not com-
                        pleted by 1987 as planned because, according to planning organization
                        officials, of funding and other prob1ems.l Appendix IV compares
                        planned and actual highway projects for the three areas.

                        With one exception, the planning organizations did not track and report
                        to EPA on the status of highway projects, and none of the organizations
                        had data on the effect that project modifications might have had on the
                        1987 ozone and carbon monoxide levels estimated in their SIPS. The Los
                        Angeles planning organization reported the status of some major
                        projects but did not discuss scope changes or measure air quality
                        impacts. Although the impacts of the changes were not quantified, some
                        highway officials told us that expanding construction projects generally
                        relieved traffic congestion and reduced emissions, while not completing
                        planned projects may contribute to congestion and increased vehicle
                        emissions.

                        Recognizing that the disagreement over air quality analysis had not been
                        resolved and that more information on highway projects could serve as
                        a basis for discussions concerning actions to achieve clean air goals, we
                        discussed with EPA and FHWA officials the usefulness of obtaining infor-
                        mation on changes to projects and other SIPassumptions. Although
                        reporting such information is not part of the conformity determinations,
                        per se, EPA officials agreed that such information could be useful, and
                        FHWA officials told us they were willing to provide project status infor-
                        mation to EPA.


                                 regulations, based on a June 12,1980, agreement between the
Better Information on   FHWA’S
                        Department of Transportation and EPA, establish several criteria for
Implementing            determining whether transportation plans and programs conform to
Transportation          SIPS, including whether they appropriately    schedule and implement SIP
                        transportation control measures. These measures include the construc-
Control Measures        tion of bus and car pool lanes, programs to form van pools, projects to
Needed                  synchronize traffic signals, or projects to increase transit ridership.
                        They are important because they are part of a state and local strategy
                        for achieving clean air by mitigating the pollution caused by motor
                        vehicles.



                        'A Denver planning organization official pointed out that while they were not completed, significant
                        progress had been made on some projects by the end of 1987.



                        Page 6                                      GAO/RCEIMO-72       Air Pollution   and Highway   Projects
Et-217221




While certifying that their annual transportation improvement pro-
grams conformed to SIPS, the planning organizations for the three cities
did not always provide enough information in the programs to demon-
strate their progress in implementing transportation control measures.
For example, the Denver organization certified that its 1989-93 highway
program conformed to their SIP but did not assess the adequacy of fund-
ing for control measures or the progress made in implementing them.

Although the Los Angeles and Phoenix programs included information
on budgeted funding levels and planned actions, they usually did not
discuss past progress in carrying out the control measures. Budgeting
funds to implement control measures does not guarantee that they will
be spent or that the measures will succeed. In fact, we found that some
measures may not have been fully funded or successfully implemented.

For example, the 1987 Los Angeles annual program for fiscal years
1988-92 indicated that funds were being budgeted at planned target
levels for a ridesharing program. However, the agency’s subsequent
progress report to EPA indicated that the ridesharing program had not
successfully increased the average number of passengers per car as
planned. Based on state highway observations, the average had
decreased, resulting in an estimated daily increase of 10 tons of hydro-
carbons that contribute to ozone pollution instead of a planned 8-ton
decrease.

A Los Angeles planning organization official told us that his agency
encounters several problems in trying to ensure progress in implement-
ing transportation control measures. He said, for example, that target
funding for the ridesharing program was set at a minimal level that
might not accomplish SIP objectives. He also said that his agency is una-
ware of actual program expenditures since it does not receive that infor-
mation from highway officials. This official said it is often difficult to
translate SIP transportation control measure objectives-such as
increasing the number of passengers per car-into highway funding or
other measurable program goals. Finally, factors beyond an organiza-
tion’s control may affect progress in achieving objectives. The price of
gasoline, for example, may have a significant impact on people’s willing-
ness to participate in ridesharing.

 For other control measures, such as a Denver car pool lane project, prog-
 ress is more easily tracked. While Denver’s annual transportation
 improvement program did not assess progress, we found that the pro-
ject’s completion had been postponed beyond the 1987 date specified in


Page 6                          GAO/RCED9@72   Air Pollution   and Highway   Pmjects
              E217221




              the SIP, primarily because of funding problems. In 1986, the state high-
              way agency reallocated a substantial amount of the project’s funding to
              a construction project with higher priority because federal highway
              funding was less than had been anticipated. At the planning organiza-
              tion’s request, the state agency later agreed to provide the funds needed
              to complete the car pool lane project by 1992 if planned funding from
              federal and other sources was received.

              After we discussed our analysis of control measures with them, metro-
              politan planning organization officials told us they could provide EPA
              more information in their annual programs on actual progress in imple-
              menting the control measures. However, they also pointed out that
              information on progress in implementing control measures is already
              required in annual SIP progress reports to EPA.

              FHWA  officials also told us they were willing to provide information on
              actual progress in implementing control measures but believed that such
              information, as well as information on the status of construction
              projects, would be more appropriately included in annual progress
              reports submitted to EPA. An EPA official told us that more information
              on control measures and construction projects would be useful, regard-
              less of how it was conveyed.

              However, we found that progress reports sometimes were not submitted
              or were submitted late. The Denver air quality agency did not submit a
              1987 progress report according to an EPA official, and the LAX Angeles
              agency submitted its report in January 1989, six months after it was
              due. We discussed our observations with EPA regional officials but did
              not pursue the matter further because more extensive oversight changes
              will likely result from legislation currently before the Congress.


              Our review of section 176(c) indicates that while it does not specify the
Conclusions   timing or degree of detail of air quality analysis needed to determine
              conformity, it gives the funding agency, FHWA, the authority to make
              those determinations. An air quality analysis of the highway system is
              performed during the SIP planning process. FHWA is acting within its
              authority in declining to perform additional air quality analysis as part
              of the conformity determination. However, EPA retains a vital interest in
              ensuring clean air goals are not compromised after SIPS are developed as
              a result of changes in highway construction or transportation control
              measures not being completely supported. FHWA officials told us they



              Page7
                  IS217221




                  understand EPA’S need for more information on projects and control
                  measures and were willing to provide it.


                  We recommend that the EPA Administrator (1) work with the Adminis-
Recommendations   trator, FHWA, to develop procedures for reporting on the status of major
                  highway projects and (2) take actions to assure the timely receipt of
                  information on progress in implementing transportation control
                  measures.


                  As requested, we conducted much of our work in the metropolitan areas
                  of Denver, Colorado; Phoenix, Arizona; and Los Angeles, California. We
                  reviewed legislation, regulations, SIPS, transportation plans and pro-
                  grams, progress reports and other relevant information. We also dis-
                  cussed conformity issues with officials of EPA, FWWA, and local agencies.
                  Our work was performed between January and October 1989 in accord-
                  ance with generally accepted government auditing standards. Appendix
                  I contains more details on our objectives, scope, and methodology. We
                  discussed our findings with EPA and FHWA officials and have included
                  their comments where appropriate. However, as you requested, we did
                  not obtain written comments on a draft of this report.

                  As agreed with your office, unless you publicly announce its contents
                  earlier, we plan no further distribution of this report until 30 days after
                  the date of this letter. At that time we will send copies to the Secretary
                  of Transportation; the Administrator, Environmental Protection
                  Agency; other interested parties; and make copies available to others
                  upon request.

                  This work was performed under the direction of Richard L. Hembra,
                  Director for Environmental Protection Issues, (202) 275-6111. Other
                  major contributors to this report are listed in Appendix VI.




                  J. Dexter Peach
                  Assistant Comptroller General



                  Page 8                           GAO/RCED-90-72   Air Pollution   and Highway   Projects
Page 9   GAO/RCED-W72   Air Pollution   and Highway   Projects
Contents



Appendix I
Objectives, Scope,and
Methodology
Appendix II
Air Quality and
Transportation
Planning Process
Appendix III                                                                          16
Selected
Transportation
Control Measures
Planned to Be
Implemented by 198’7
With Transportation
Program Funds
Appendix IV                                                                           17
Major Highway
Construction Included
in State Plans and
Completed by
December 1987 for
Three Metropolitan
Areas




                        Page 10   GAO/ECEIMO-72   Air Pollution   and Highway   Projects
                        contente




Appendix V                                                                                               18
Analysis of
Conformity
Requirement in 1977
Clean Air Act
Amendments
Appendix VI                                                                                              22
Major Contributors to
This Report




                        Abbreviations

                        Dur        Department of Transportation
                        EPA        Environmental Protection Agency
                        FHWA       Federal Highway Administration
                        MPO        Metropolitan Planning Organization
                        NPRM       Notice of Proposed Rulemaking
                        SIP        State Implementation Plan
                        TCM        Transportation Control Measure


                         Page 11                        GAO/RCEB9O-72   Air Pollution   and HighWaY ProjeCtS
mw-ndlx   1

Objectives,Scope,and Methodology


              In a letter dated May 31, 1988, the Chairman, Subcommittee on Over-
              sight and Investigations, House Committee on Energy and Commerce
              expressed concern that EPA and the Department of Transportation were
              not adequately addressing the impacts of transportation and highway
              programs on air pollution. In subsequent discussions with the Chair-
              man’s office, we agreed to address these concerns by reviewing how
              these agencies administered Set 176(c) of the Clean Air Act requiring
              federally funded highway projects to conform to state implementation
              plans. More specifically, we examined how conformity is determined
              and the roles of the Department’s Federal Highway Administration
              (FHWA) and EPA in making this determination.


              To examine how conformity is determined, we reviewed section 176(c)
              of the Clean Air Act, its legislative history, FHWA regulations and agree-
              ments between EPA and the Department for carrying out the section. We
              also reviewed correspondence between EPA and FHWA outlining their posi-
              tions on the issue and discussed these positions with FHWA and EPA head-
              quarters as well as with regional officials and the metropolitan planning
              organizations for the three areas.

              As suggested by the Chairman, we focused on the Denver, Colorado; Los
              Angeles, California; and Phoenix, Arizona, metropolitan areas to assess
              how section 176(c) was implemented. These areas were experiencing
              increasing transportation-related air pollution and had not met the
              national ambient air quality standard for ozone or carbon monoxide by
              the date required by the act. Also, in order to obtain information on an
              annual air quality analysis of their state’s highway program, we met
              with Connecticut highway officials.

              To identify the roles of the respective agencies, we reviewed the act and
              FHWA regulations and guidelines. We also discussed agency responsibili-
              ties with EPA and FHWA headquarters and regional officials and with the
              metropolitan planning organizations for the three areas.

              To determine how the metropolitan planning organizations were carry-
              ing out their responsibilities, we reviewed their air quality analyses and
              other actions they took to comply with the statute, focusing on how
              highway projects were considered in developing SIPS. We identified the
              project and other assumptions used to determine vehicle travel and
              related emissions levels for the 1982 SIP revisions. Then through reviews
              of annual highway programs and discussions with agency officials, we




              Page 12                         GAO/RCEDW72    Air PouutiOn and -IWaY   proj-~
Appendix I
Objectives, Scope, and Methodology




identified major projects approved by metropolitan planning organiza-
tions and constructed between 1982 and 1987, to determine if they were
the same as those considered in the 1982 SIP revisions.

We also reviewed the three planning organizations’ annual highway pro-
grams and discussed with organization officials how they determined
that reasonable progress was being made in programming and imple-
menting transportation control measures, as required by the Depart-
ment’s conformity policy. Finally, we discussed with FHWA division
officials and EPA regional officials for Colorado, Arizona, and California
their procedures and controls to ensure that these highway programs
conformed with the SIPS.We conducted our audit work between January
and October 1989 in accordance with generally accepted government
auditing standards.




Page 13                              GAO/RCED+O-72   Air Pollution   and Highway   Projects
Appendix II

Air Quality and Transportation
Planning Process

                Transportation planning for urban areas is the responsibility of metro-
                politan planning organizations, in cooperation with state and local gov-
                ernments. Their activities include the preparation of long-term
                comprehensive local transportation plans that must conform to EPA-
                approved SIPS.They also prepare annual transportation improvement
                programs that identify highway construction, transit operations, and
                other projects which local officials agree could be federally assisted. The
                programs, which also must conform to EPA-approved SIPS,are submitted
                for federal-funding approval to the FHWA.

                Motor vehicles contribute significantly to urban pollution problems.
                They are the primary cause of carbon monoxide emissions in urban
                areas and a major source of hydrocarbon emissions-a key component
                in the creation of ozone pollution. In recent years, vehicle travel in many
                urban areas has been steadily increasing. For example, from 1979 to
                1987 vehicle travel in Maricopa County, which includes Phoenix, grew
                from 22 million to 45 million miles a day.

                To date, the air quality impact of increasing traffic has been largely off-
                set by stricter federal emissions requirements for new cars and by state
                inspection and maintenance programs to control vehicle pollution. In
                Maricopa County, for example, while traffic was doubling, carbon mon-
                oxide emissions increased only 3 percent. Nevertheless, according to an
                EPA official, the continued growth in vehicle travel and congestion will
                eventually overwhelm the emissions reductions achieved by more
                tightly controlled and cleaner-fueled cars. The official predicts that by
                the late 1990’s the amount of vehicle travel, as opposed to tailpipe or
                evaporative emissions rates, will increasingly become the key determi-
                nant of air quality problems. Increasing congestion levels and vehicle
                use are therefore important considerations in the development of SIPS.

                The Clean Air Act Amendments of 1977 required states to prepare SIPS
                for each area which had not yet attained clean air standards. The
                amendments established a final deadline of December 3 1, 1987, for
                attaining the air quality standards for ozone and carbon monoxide. The
                SIPprocess is a cooperative effort involving EPA, state governments, and
                local jurisdictions. Elements of the process include inventorying emis-
                sions sources, identifying needed control measures, adopting these
                measures, and evaluating progress.

                The act also requires SIPS to include procedures for future revision when
                EPAfinds that the plan is substantially inadequate to achieve clean air



                Page 14                          GAO/RCED9@72   Air Pollution   and Hi&~ay   ProjeCti
Appendix II
Air Quality and Transportation
plannine-




standards. It further establishes the concept of reasonable further prog-
ress and defines it as annual emissions reductions which would, in the
judgment of the Administrator, EPA, provide for attainment of the stand-
ard by the required date. EPA rules for the 1979 and 1982 SIP revisions
require states to submit annual reports by July 1 outlining the prior
year’s progress toward achieving the standards. These reports are to
include the status of implementation of control measures as well as
reductions achieved in emissions.

In Los Angeles, Phoenix, and Denver, the designated metropolitan plan-
ning organizations developed or were the co-lead agencies for developing
the local elements of the SIPS, including final 1982 revisions for achiev-
ing clean air by the end of 1987.1 Their responsibilities included develop-
ing the transportation portions of the plans that estimated future
vehicle travel and identified measures to reduce emissions from trans-
portation sources.

An important factor in determining vehicle emissions used in developing
the 1982 SIP was the amount of vehicle travel anticipated for 1987. For
example, the Denver planning organization estimated that 1987 vehicle
travel would be about 29 million miles per day. From this estimate, it
was calculated that 79 tons of hydrocarbon and 1372 tons of carbon
monoxide emissions would result. These figures represented about 56
and 89 percent, respectively, of the Denver area’s projected 1987 emis-
sions of those pollutants.

One assumption the planning organizations made in estimating travel
was about the road system. According to organization officials, the
physical characteristics of highways, such as the number of lanes, were
included along with other data in complex traffic forecasting models.
For example, Denver officials included data on existing highways and on
three major highway projects and other less significant projects they
believed would be constructed by 1987. Other key data used to project
travel were estimates of future population and employment and other
demographic information from residential surveys that were used to
predict travel patterns. Forecasted traffic levels were then included
with a variety of data in other. models that estimated areawide emis-
sions levels.


‘Los Angeles’ 1982 ozone plan stated that it could not demonstrate attainment of the clean air stan-
dards by Dee 31.1987. As a result, EPA disapproved the plan in the January 22,1988, Federal
Register. According to an EPA official. Los Angeles haa since developed and proposed a new plan
under consideration by EPA.



Page 15                                     GAO/lEEDW72         Air Pollution   and High-y   Rejects
Appendix   III

SelectedTransportation Control Measures
Planned to Be hnplemented by 1987 With
Transportation Program lQnds
                 Measure                                                  Denver        Los Angeles’             Phoenix
                 Increase transit ridership                                      X                                          X
                 Maintain transit service                                                                                   X
                 Reolace buses                                                                         X
                 Increase auto occupancy                                         X                     X                    X
                 Implement bicycle plan                                          X                     X
                 improve pedestrian facilities                                                         X
                 Construct high occupancy vehicle lanes                          X
                 Construct park and ride lots                                    X
                 Meter freeway ramps                                             X                                          X
                 Construct exclusive bus ramos                                   X
                 Improve traffic signalization                                   X                     X                    x
                 Remove on street parking                                                                                   X
                 Desianate a reversible lane                                                                                X
                 % addition to those listed, Los Angeles planned other transportation system management and traffic
                 improvements not specifically identified as SIP control measures requiring transportation program fund-
                 ing.




                 Page 16                                      GAO/RCEKMO-72        Air Pollution   and Highway   Projects
Appendix IV

Major Highway Construction Included in State
Plans and Completed by December 1987 for
Three Metropolitan Areas
                                                           Planned            Planned           Unplanned
                                        Projects           projects           projects            project8
               Project type             planned          completed          expanded            completed
               New highway
               construction
                  Denver                       2                    0                  0                       0
                  Los Angeles                  8                    6                  3                       0
                  Phoenix                      2                    1                  0                       1
               Widening of existing
               highways             -
                  Denver                       1                    0                  1                       0
                  Los Angeles                  7                    1                  0                       0
                  Phoenix                      3                    2                  1                       1
               TOtal                          23                    10                 5                       2




               Page 17                             GAO/RCED-90-72     Air Pollution   and llighwa~   RojeCts
PP

zG&is of Conformity Requirement in 1977
Clean Air Act Amendments

              The Clean Air Act Amendments of 1977 require all federal entities to
              insure that projects they approve or finance are in conformity with all
              requirements under the applicable SIP. At present, the Federal Highway
              Administration (FHWA) carries out that responsibility by reviewing the
              local government planning process to insure that SIP requirements are
              taken into account, rather than by reviewing individual projects.
              Recently, in commenting on proposed regulations, the Environmental
              Protection Agency (EPA) recommended to FHWA that it revise the stan-
              dards for determining conformity for highway construction projects. In
              our view, FHWA’S current and proposed actions in determining conform-
              ity are in accord with its statutory responsibility.


Background    Almost immediately after enacting the 1970 Clean Air Act, Congress
              moved to alleviate potential conflict over the relative priorities that
              should be placed on new highway construction and achieving clean air
              goals. In the Federal-Aid Highway Act of 1970, Congress required that
              the Secretary of Transportation consult with the EPA Administrator and
              issue guidelines to assure that future highway construction would be
              “consistent with any approved plan for the implementation of any ambi-
              ent air quality standard” (23 U.S.C. 109(j)).

              Joint guidelines were issued by DOT and EPA pursuant to this requirement
              in April 1975. The guidelines were directed to the transportation plans
              and programs under development by the metropolitan planning organi-
              zations (MPOS).' The guidelines provided that, to be consistent with the
              applicable SIP, an MPO'S transportation plan should not: 1) exacerbate
              existing violations of the standards; 2) cause new violations to occur; 3)
              delay attainment of the standards beyond the final statutory deadline;
              or 4) interfere with maintaining the standards. Finally, MPO transporta-
              tion plans were required to incorporate any commitments made in the
              prevailing SIP to specific projects (such as establishing car pool lanes) to
              reduce vehicle miles traveled. While not expressly stated, the guidelines
              appeared to apply to the transportation plan considered as a whole, and
              not to specific projects recommended in the plan.

              When Congress enacted the 1977 Amendments to the Clean Air Act,
              Congress included in Part D a specific provision, section 176(c), to insure
              the continued primacy of air qua1it.y concerns as embodied in approved
              SIPS. This provision also extended the SIP’s priority beyond its original


              ‘SubJect to title 23, section 134. MPOs review and pass on every aspect of local transportation
              requirements including road construction and mass transit.



              Page 18                                      GAO/RCED90-72       Air Pollution   and Highway      Project.8
                                                                                                            -
Ap~ndixV
Analyale   of Conformity   Requirement   in 1977
Clean Air Act Amendments




transportation context to encompass all federal activities. The new sec-
tion 176(c) provides that no federal entity may approve or financially
support any activity “which does not conform to” the applicable
approved SIP.”

On June 12,1980, DOTand EPA executed an agreement promulgating joint
procedures to carry out the new statutory requirement. Under the
agreement DOT and EPA concurred that a finding of conformity under
new section 176(c) of the Clean Air Act as amended would satisfy the
continuing requirement for consistency under the 19.70 Highway Act.
The agreement thus permitted the agreed upon conformity procedures
to supersede the consistency procedures contained in the 1975 Joint
Guidelines (23 CFR 770.7). Regulations implementing the agreement
were promulgated as interim final regulations on January 26, 1981(46
Fed. Reg. 8429).

The regulations call for an overall evaluation of an MPO’S transportation
control plans resulting in a finding of conformity for the general plan,
rather than focusing on specific projects. According to the regulations,
conformity exists where an MFO’S transportation plans and programs:

“do not adversely affect the TCM’s [Transportation Control Measures] in the SIP,
and . . . contribute to reasonable progress in implementing the TCM’s contained in
the SIP”(23 CFR 770.9(a)).

Certain procedural prerequisites must also be met under the regulations
as a part of the conformity determination. For example, the MPG’S trans-
portation plan must have appropriately considered and integrated both
air quality objectives and urban transportation needs. Further, to be
found in conformity, transportation plans must schedule and carry out
the transportation control measures listed in the SIP, subject to funding
availability (23 CFR 770.9(b)( 1)).

If FHWA finds nonconformance, the regulations state that it will first dis-
cuss the situation with EPA and affected state and local officials, and


%odified at 42 U.S.C. 7506(c), the full text of section 176(c) reads as follows:
“No department, agency, or instrumentality of the Federal Government shall ( 1) engage in, (2) sup
port in any way or provide financial assistance for, (3) license or permit, or (4) approve, any activity
which does not conform to a plan after it has been approved or promulgated under section 110. No
metropolitan planning organization designated under section 134 of title 23 shall give its approval to
any project, program, or plan which does not conform to a plan approved or promulgated under
section 110. The assurance of conformity to such a plan shall be an affirmative responsibility of the
head of such department, agency, or instrumentality.”



 Page 19                                      GAO/RCED9@72        Air Pollution    and Highway   Projects
             Appenti   V
             Analysis of Ckmfonnity Requirement       in 1977
             Clean Air Act Amendments




             then, if the problem is not corrected, severely restrict all construction
             funding within the MPO planning area. The only items FHWA would allow
             in such circumstances would be nonconstruction activities, such as pre-
             liminary engineering and environmental impact studies. Even in noncon-
             formance, however, FHWA would continue to finance construction of
             items exempt from the funding sanctions of section 176(a) of the Clean
             Air Act (safety, mass transit, and transportation improvement projects
             related to air quality improvement) (42 U.S.C. 7506(a); 23 CFR
             770.9(b)(3)).

             Under the regulations, conformity findings for individual projects are
             abbreviated. First, a specific transportation control measure listed in a
             SIP will automatically be found in conformity. Additionally, the regula-
             tions establish a presumption that individual projects identified in a con-
             forming transportation plan are themselves in conformity. The
             regulations also exempt safety improvements and certain other limited
             types of projects from the conformity requirement. Finally, with limited
             exceptions, the regulations suspend any further conformity review for
             projects that have completed an Environmental Impact Statement (EIS)
             or reached a formal Finding of No Significant Impact.3


             Under the conformity regulations, the focus of the air consequences
Discussion   review is an evaluation of the quality of the process by which local
             transportation decisions are made, rather than a review of the individ-
             ual and collective impact of various projects on air quality. The differ-
             ence between the supposed outcomes under the regulation’s conformity
             determination and the previous consistency determination under the
             1975 Joint Guidelines has engendered a continuing disagreement
             between ucrr and EPA.

             The disagreement was highlighted on September 9, 1988, when uor pub-
             lished a Notice of Proposed Rulemaking (NPRM) consolidating and simpli-
             fying all of its Clean Air Act review requirements including the
             conformity procedures (53 Fed. Reg. 35178). The KPRM, which has not
             yet been made final, would schedule MPO transportation plan conformity
             review on an annual or biennial basis. The NPRM retains the same basic
             principle of conformity review as the current regulation-assuring    the
             transportation planning process is properly carried out? rather than

             ‘{The regulations still provide for an additional conformity review where (a) a supplemental EIS slg-
             nificantly related to air quality considerations is being done; (b) where a SIP revision is being pre-
             pared for the area; or (c) where the project has not moved toward implementation within 3 years of
             the final EIS (23 CFR 770.9 (c),(d)).



             Page 20                                      GAO/RCEDS@72        Air Pollution   and Highway   Projects
Appendix V
AnalyBiB of cfmfonuity Requirement   in 1977
Clean Air Act Amendments




focusing on reviews of individual projects. With regard to conformity
specifications for individual projects, it adds a new group of “categorical
exemptions” from conformity review. In addition, it limits the TcMs
included in FHWA’S conformity reviews to those having to do with urban
transportation planning rather than the full range of TCMS in the SIP.
Finally, the NPRM deletes the provision in the current regulation that sus-
pends conformity determinations when a SIPrevision is in process.

In comments on the NPRM, EPA recommended that nor return to the prin-
ciple of the 1976 Joint Guidelines, which evaluated the plans’ impact on
attainment and maintenance of the national primary ambient air quality
standards. EPA also restated its position that nor should analyze individ-
ual projects in making conformity determinations. (See letter from Jen-
nifer Joy Wilson and Don R. Clay to Robert E. Farris (Nov. 8,1988)
transmitting EPA'S comments on FHWA Docket #88-13.)

Despite the difference of opinion between DOTand EPA, we do not believe
that there is any lack of clarity in the law. Neither conformity nor con-
sistency is defined in the statute. However in both cases, the legislation
gives responsibility for administering its requirements to nor. In the case
of section 109(j), Congress directed nor to consult with EPA but left the
final decision with nor to develop guidelines to assure consistency. In
fact, nor secured EPA'S agreement, and the guidelines that were pub-
lished were a joint undertaking. The content of those guidelines and,
hence, the “meaning” of consistency was an agency determination, not a
statutory one.

In enacting section 176(c), Congress gave responsibility for assuring
conformity to the program agencies, including m, and not to EPA. How-
ever, as in the case of consistency, nor and EPA conferred and came to
agreement on the meaning of conformity. That agreement is embodied in
the current regulations, key features of which EPA now would like nor to
change.

As we see it, in neither case is there any statutory requirement or any
other indication of overriding congressional intent to adopt any specific
standard of review. Either a narrow or broad-based standard would sat-
isfy either statutory requirement. In both cases, there is a clear intent to
allow the administering agency to work out the meaning of the terms.
Accordingly, when defining the term conformity in its regulations, nor
was carrying out the statutory responsibility assigned to it under section
 176(c), and the resulting definition is legally unobjectionable.



Page 21                                  GAO/RcEDgo-72   Air Pollution   and Highway   Project8
Major Contributors to This Report


                       Peter F. Guerrero, Associate Director
Resources,             William F. McGee, Assistant Director
Community, and         Charles R. Grissinger, Assignment Manager
Economic
Development Division
Washington, D.C.

                       Margie Armen, Senior Attorney
Office of General
Counsel

                       Steve Reed, Regional Management Replresentative
San Francisco          Dennis Day, Evaluator-in-Charge
Regional Office        Brad Dobbins, Evaluator
                       Bruce Engle, Evaluator




(099461)               Page 22                         GAO/RCED90-72   Air Pollution   and Highway   Projects
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