Transportation Solutions Defense and Education Fund

16 Monte Cimas Avenue Mill Valley, CA 94941 415-380-8600

                                                                                                           July 18, 2002

Steve Heminger, Executive Director

Metropolitan Transportation Commission

101 Eighth Street

Oakland, CA 94607

Re: Comments on Draft 2003 TIP

Dear Mr. Heminger:

TRANSDEF is please to herein restate and extend its oral comments on the draft 2003 TIP adoption proposed for the Commission meeting of July 24, 2002. Our organization is convinced that TIP adoption is not legally possible, for a very lengthy set of reasons, which fall into a series of distinct categories:

Resolution 3487 is drafted defectively. The final paragraph identifies the motor vehicle emissions budget as coming from the 2003 Ozone Attainment Plan. Obviously, EPA hasn’t approved such a plan or MVEB.

There is no reference to an attached conformity analysis. As such, there is no finding of exemption from the requirement for a new regional emissions analysis. There is no finding of TCM full implementation, and of non-interference with full implementation.

There is no adoption of the Final Transportation Air Quality Conformity Analysis for the 2001 Regional Transportation Plan and the 2001 Transportation Improvement Plan Amendment 01-32, which contains the mandatory statement of assumptions.

The circulation of the Draft 2003 TIP was procedurally defective.
The Draft 2003 TIP was not circulated in its entirety for 30 days. Resolution 3500 Attachment A refers to Volume I and Volume II of the 2003 TIP, which were not available in the MTC/ABAG Library or on the MTC Website. The Library made the Draft Project Listings available, but did not offer any of the other contents identified in Attachment A. The MTC website TIP page also made the Draft Project Listings available, but did not offer links to the other contents identified in Attachment A. If the document was not circulated in its entirety, it does not meet the requirement of (1) The San Francisco Bay Area Transportation Air Quality Conformity Interagency Consultation Procedures (BAICP) III.b, (2) 23 CFR 450.316(b)(1) and (3) 23 CFR 450.324(c).

The Public Hearing on the TIP was procedurally defective. The hearing was not conducted by any cognizable public body. While there was an announcement that the hearing was to be conducted by the Programming and Allocations Committee, the hearing did not appear on the Committee’s agenda. The Committee was called to order and the roll called after the public hearing was closed. The suggestion by the General Counsel that the hearing was being conducted by the Commission was unavailing for the same reasons: The Commission did not have a noticed meeting on that date, and the Commission roll was not called. The ongoing practice at MTC is to conduct public hearings without any committee or body on record as responsible. This is improper.

The Draft 2003 TIP was not accessible to the general public. The missing elements are especially important to help the general public understand the significance of the TIP. Their absence was made much more serious by the failure of MTC to circulate the Draft Project Listings with a staff report, setting a context for the document. This failure goes directly to MTC’s Title VI responsibilities to make its key documents accessible to the public, so that underrepresented communities can meaningfully participate in the decisionmaking process.

The fact that TRANSDEF was the only representative of the public to testify at the TIP Public Hearing speaks volumes about the inaccessibility of the process surrounding the programming of $9 billion, undoubtedly the largest single commitment of funds by any agency in the region. The decisions involved in selecting the projects are inherently of great public significance, but the general public was obviously unable to recognize that significance. This points to a failure of MTC’s public notice procedures to make its decisionmaking understandable and accessible to the public.

The Draft Project Listings volume is itself inaccessible to the general public. It arrives as a set of listings, without any context or explanation. Especially baffling is the relationship to the current TIP. No staff report was issued to analyze the changes in projects between the current TIP and the draft. The Public Hearing notice asserted that “the list of projects in the Draft 2003 TIP reflects no substantial changes from the current 2001 TIP.” The absence of an analysis makes it clear that MTC feels no need to demonstrate the truth of the Notice’s assertion, but rather expects the public to either take its pronouncements on faith or ignore the issue entirely. San Francisco Bay Area Transportation Air Quality Conformity Procedures (BACP) 93.110(f).

Resolution 3487 is based on faulty premises.

The emissions being evaluated in the Conformity Analysis were calculated using the San Francisco Bay Area version of EMFAC 2000. It is meaningless to try to compare the emissions calculated with it to the 1994 MVEB calculated with EMFAC 7F.

Conformity for the Draft 2003 TIP is based on the MVEB from the 2001 OAP. The MVEB is technically and legally inadequate, preventing a supportable conformity finding from being made. This issue and other substantive conformity problems are described in lengthy TRANSDEF letters commenting on recent conformity analyses, submitted to MTC on January 15, 2002 and March 14, 2002 and incorporated herein by reference.

The CO conformity finding requires a demonstration. Merely comparing the outputs of two incompatible models is not an acceptable demonstration. Conformity determinations require a working approved model. A letter from ARB is not an acceptable substitute. Bay Area EMFAC 2000 is not approved for modelling CO, and so, violates BACP 93.111.

The analysis fails to meet the requirements for analysis years for CO in BACP 93.118.

MTC has not documented whether the CO model used the same temperature assumptions as the CO maintenance plan, as required by BACP 93.130(a)(6).

MTC has not documented whether it has corrected its model’s failure to count tourist travel in the region. If not, regional VT and probably VMT will be understated, violating BACP 93.130(a), especially in relation to TCM E.

The VMT used in the SIP for the emissions inventory was based on smog check odometer readings, held to be more credible by ARB than the outputs of the MTC model, which showed a significantly lower regional VMT. The speeds derived from the MTC model are thus based on different VMT than the SIP. Therefore the conformity analysis is incompatible with the SIP. We question whether predicted speeds correlate with observed and validated speeds. This conflicts with BACP 93.130(a), (b)(1)(iv), (b)(4) and (c).

The Conformity Analysis, such as it is, asserts an exemption from the requirement to provide a new regional emissions analysis. That exemption, 40 CFR 93.122(e), is contained in MTC’s 1998 Resolution no. 3075 and the current federal regulations. However, unless that Resolution can be demonstrated to have been approved as a Conformity SIP by EPA, a new emissions analysis must be performed, because there is no exemption 122(e) in the applicable 1996 Procedures. Under 40 CFR 51.390, neither Resolution no. 3075 nor the current federal regulations apply. According to 40 CFR 52.220(c)(243), [Bay Area] “Transportation Air Quality Conformity Procedures [BACP] ... were submitted on December 16, 1996 by the Governor’s Designee” and approved by the EPA. 62 FR 54587. Research has not disclosed any EPA approval of new procedures following that date.

A new regional emissions analysis may not support a finding of conformity. BACP 93.110 requires using the latest planning assumptions, which would cause a new regional emissions analysis to be required, due to significant changes in transit since 2001, even if 93.122(e) were applicable. The recent transit fare increases and service cuts will have to be discussed and used as inputs to the model and analysis. Ridership can be expected to decline below that projected in the current conformity analysis. This will make demonstrating implementation of TCM 2 all the more difficult. Ridership is less likely to increase to target levels by 2006. Regional emissions may increase as well. A full interagency consultation on assumptions for modelling will be needed. BACIP III.d A new analysis of TCM effectiveness will be required. BACP 93.110(e).

The draft 2003 TIP fails to specifically implement TCM 2. Regulations require specific determinations before TIPs may be found to conform. BACP 93.113(c). These determinations should be delineated in the draft conformity determination for public comment. Given the status of Bayview Advocates with a published decision finding liability, TCM 2 is dramatically behind schedule and obstacles to implementation have not been identified or overcome. BACP 93.113.

At the Bayview Advocates hearing on remedies, the Court asked MTC’s attorney “Have there been any cases where a court found defendants liable for failing to comply with a SIP provision but did not order injunctive relief.” Given that his response was no, MTC’s position that this case can result in an outcome other than its being required to implement the TCM is incomprehensible. The Court also asked “Given that the Court has already ruled that the only option besides compliance with a SIP provision is to seek the provision’s removal by the EPA, how can the Court now decide not to require you to comply with TCM 2?” MTC’s attorney had no answer. Until and unless it wins an appeal and/or stay of the final judgment, MTC is required to implement TCM 2. It is not permitted to ignore the finding of liability by making a finding of full TCM implementation.

The draft 2003 TIP interferes with implementation of TCM 2. MTC must address BACP 93.113(c)(3). The TIP’s allocation of funds favoring highway expansion is a disincentive to transit ridership and mis-allocates federal transportation funds away from projects that would increase transit ridership in the near term. It thus interferes with timely implementation of TCM 2. Nothing in the TIP may interfere with TCM implementation. BACP 93.113. That includes that includes the financial diversion impacts of highway widenings and expensive transit projects that fail to deliver near-term ridership benefits.

The draft 2003 TIP fails to properly assess TCM implementation. TCM 12: the requirement to acheive 50% non-SOV commute in San Jose has not been achieved.

TCM A: The analysis does not identify whether the regional model already gives credit. This would create a double counting of credit if it did.

TCM D: The analysis does not identify if it was implemented in FY 2001 as planned. If it wasn’t, partial credit can only be give to it if special provisions are met. BACP 93.130(a)(2)

MS-1: The analysis needs to identify whether it was implemented in early summer 2002 to determine whether credit can be claimed.

MTC has not honored commitments made to the Air Quality Conformity Task Force. In the June 18 meeting of the Task Force, MTC agreed to 1) send out corrected minutes of previous meetings right away; 2) check the procedure for adjusting VMT and VT for CO to see if it is consistent with the procedure for ozone, and meets the conformity requirements; 3) provide specific documentation demonstrating fiscal constraint during the current economic downturn; BACP 93.110(f), 4) provide RTP ID numbers for each project in the TIP, to enable verification of claims that all projects in TIP are in RTP; and (5) MTC did not pursue ARB for documentation of the enforceability of state control measures, including MS-1. These items were needed to substantiate claims in the conformity analysis. Because they have not been provided, the conformity analysis cannot be substantiated and BACP 93.112 and BACIP III have not been met.

The TIP misdirects federal transportation funding. The 2003 TIP project list inappropriately directs limited federal transportation funding towards a series of air pollution-generating highway capacity expansion projects. The Bay Area’s air quality is unhealthful, in part because of excessive motor vehicle emissions. The 2001 Ozone Attainment Plan established that at least an additional 26 tpd of VOC emissions reductions is needed to achieve just the federal one hour ozone standard. In all likelihood, the actually amount of emissions reductions required for attainment will be much greater, given the recent severe exceedances. The Bay Area must also meet the new 8 hour federal ozone ambient air quality standard, and the state one hour ozone standard, each necessitating additional emissions reductions. The 2003 TIP is indifferent to regional air quality, and, as it is currently constituted, will act to worsen it.

MTC’s indifference to air quality has led to so-called regional planning that predicts a 48.6% increase in regional VMT between 1998 and 2025. This is the inevitable result of facilitating long distance commutes, especially those from outside the Bay Area. This is the inevitable result of the unwillingness of MTC to effectively involve itself in the correction of the region’s severe jobs/housing imbalance. The TIP has been a primary facilitator of sprawl, which is a transportation and land use system dependent on the automobile. The Sunol Gateway TIP projects provide infrastructure for the commute in from the Central Valley, thereby encouraging an ever-increasing average commute trip. The TIP projects that widen Highway 4 encourage auto-dependent development in eastern Contra Costa, thereby harming regional air quality.

Until the region can demonstrate that it attains the ozone standard and eliminates pollutant transport to other air basins, the 2003 TIP project list should be modified to fund only air quality-beneficial projects, such as TCMs and cost-effective transit expansion. Only by aggressively funding cost-effective alternative transportation programs that will substantially reduce regional emissions can MTC fulfill its obligations under the Clean Air Act and serve the public health needs of Bay Area residents, while improving regional mobility.

MTC has arrived at an historic moment. Unlike any other time in its history, the Commission’s ability to exercise its authority to adopt TIPs is now subject to the federal courts. After decades of insensitivity to the public, the public has responded by litigating to enforce the federal Clean Air Act.

Please note that, starting nearly two years ago, plaintiffs have offered to work with MTC to develop significant emissions reductions from motor vehicles as an alternative to litigation. MTC’s complete unwillingness to change its direction and/or engage with the public has led to its legal difficulties in the current moment. Plaintiffs remain ready and willing to collaborate with MTC to submit new TCMs to EPA. In the meanwhile, TRANSDEF is pleased to offer these comments on the Draft 2003 TIP. Should any questions on these comments arise, please reach us at the phone number above.

                                                                Sincerely,

                                                                David Schonbrunn,

                                                                President

cc:      MTC Public Information

          Jack Broadbent, EPA R9

          Michael Ritchie, FHWA

          Leslie Rogers, FTA

          Martin Whitmer, DOT OST