July 19, 2002
Steve Heminger, Executive Director
Metropolitan Transportation Commission
101 Eighth Street
Oakland, CA 94607
Dear Mr. Heminger:
For the reasons set forth below, the Metropolitan Transportation Commission (MTC) has failed to demonstrate that its 2003 amended Transportation Improvement Program conforms with the applicable State Implementation Plan, as required by the Clean Air Act. 42 U.S.C. § 7506(c)(1) & (2).
1. Failure to Implement Transportation Control Measures
The Clean Air Act and its implementing regulations require that Transportation Improvement Programs and Regional Transportation Plans provide for timely implementation of transportation control measures in order to be found in conformity with the State Implementation Plan. 42 U.S.C. § 7506(c)(2)(B). The State Implementation Plan currently applicable to the San Francisco Bay Area includes 28 Transportation Control Measures. One of those measures, TCM-2, required MTC and the Bay Areas six public transit operators to achieve a 15% increase in transit ridership by 1987.
As early as 1997, MTC acknowledged that it had not achieved the 15% increase mandated by TCM-2. In 1998 both EPA and the Bay Area Air Quality Management District notified MTC that TCM-2 was not being implemented in a timely manner, pointing out that in order for a transportation plan to be in conformity, it must provide for the timely implementation of all TCMs in the state implementation plan. In a letter dated January 19, 1999, the United States Department of Transportation admitted that the FHWA/FTA conformity determinations on MTC transportation plans and programs since 1987 . . . assume that MTC has complied with the timely implementation of TCM requirements related to TCM 2.
MTC and the Bay Areas public transit operators have not yet achieved a 15% increase in transit ridership. In November 2001, the United States District Court for the Northern District of California held that, by failing to achieve the 15% increase mandated by TCM-2, MTC and the Bay Areas public transit operators have failed to implement TCM-2 in a timely manner. In addition, it has come to our attention that the 50% non-single occupant vehicle use benchmark set forth in TCM-12 has not been implemented in a timely manner. The 2003 amended Transportation Improvement Program does not, accordingly, provide for the timely implementation of the above-described Transportation Control Measures.
2. Failure to Use Procedures Approved in State Implementation Plan
In approving the 2003 amended Transportation Improvement Program, MTC utilizes its conformity analysis for the 2001 Regional Transportation Plan and 2001 amended Transportation Improvement Program (Conformity Analysis). That Conformity Analysis utilizes the Bay Area Air Quality Conformity Procedures adopted in June 1998, which have not been approved in Californias State Implementation Plan. The Clean Air Act and its implementing regulations require that the all conformity determinations comply with the criteria and procedures approved in a State Implementation Plan for making conformity determinations under section 176(c) of the Clean Air Act.
3. Failure to Use Temperatures From Applicable Implementation Plan
In forecasting vehicle emissions, including carbon monoxide emissions, the Conformity Analysis utilizes temperature assumptions from the Bay Areas ozone plan. The temperature assumptions for the Bay Areas ozone plan differ from the temperature assumptions contained in the carbon monoxide plan, which is the applicable implementation plan for the carbon monoxide emissions budget. The Clean Air Act and its implementing regulations require that [t]he ambient temperatures used for the regional emissions analysis shall be consistent with those used to establish the emissions budget in the applicable implementation plan.
4. Failure to Account for Visitor-Related Travel
The Conformity Analysis forecasts emissions without properly accounting for additional vehicle trips and vehicle miles traveled in the Bay Area as a result of visitor-related travel in the Bay Area including, but not limited to, vehicle trips to and from the San Francisco airport. By failing to properly account for visitor-related travel, the Conformity Analysis significantly underestimates emissions in the Bay Area. The Clean Air Act and its implementing regulations require that the Federal Defendants properly estimate travel-related emissions, inter alia by using travel models according to procedures that are available and in practice and supported by current and available documentation, and using [r]easonable methods in accordance with good practice.
5. Failure to Utilize Appropriate Vehicle Speed Data
The Conformity Analysis forecasts emissions using speeds that are based on MTCs data regarding the total vehicle miles traveled in the Bay Area, rather than the data contained in the State Implementation Plan and used elsewhere in the Conformity Analysis. The use of MTCs traffic data rather than the State Implementation Plan data results in a failure to account for significant traffic congestion and associated emissions in the Bay Area. The Clean Air Act and its implementing regulations require that travel-related emissions be estimated, inter alia, using travel models according to procedures that are available and in practice and supported by current and available documentation, and using [r]easonable methods in accordance with good practice.
6. Failure to Use EPA-Approved Emissions Model
The Conformity Analysis utilizes the San Francisco Bay Area EMFAC2000 Model to estimate carbon monoxide emissions, which the U.S. Environmental Protection Agency has not approved for use in estimating carbon monoxide emissions. The Clean Air Act and its implementing regulations require that [w]here EMFAC is the motor vehicle emissions model used in preparing or revising the applicable implementation plan, new versions must be approved by EPA before they are used in conformity analysis.
7. Inclusion of Unassured Emissions Credits
The Conformity Analysis includes emissions credits for transportation control measures and mobile source control measures, including Transportation Control Measures A, B, C and D and Mobile Source Control Measure MS-1. Those emissions credits are not supported by the requisite assurances and commitments and demonstrated regulatory adoption, and are not estimated by reasonably professional methods, as required by the Clean Air Act and its implementing regulations.
8. Failure to Properly Estimate Emissions Reduction Credits
The Conformity Analysis utilizes an emissions credit based on TCM-E of Californias proposed Ozone Attainment Plan (which has not yet been approved by the U.S. Environmental Protection Agency). TCM-E proposes to increase transit travel to San Francisco International Airport.
In taking the above-described emissions credit, the Conformity Analysis assumes that TCM-E will reduce vehicle trips and vehicle miles traveled to and from San Francisco International Airport. The model relied upon by the Conformity Analysis does not, however, account for vehicle trips to and from San Francisco International Airport.
In taking an emissions credit for reducing those vehicle trips without having first included them, the Conformity Analysis substantially underestimates vehicle emissions. In so doing, MTC has failed to properly estimate the effects of Transportation Control Measures in accordance with reasonable professional practice.
9. Failure to Demonstrate Consistency For All Required Years
The Conformity Analysis fails to demonstrate consistency with the carbon monoxide motor vehicle emissions budget for the last year of the Bay Area carbon monoxide Maintenance Plan, and fails to demonstrate consistency for years no more than ten years apart, as required by the Clean Air Act and its implementing regulations.
10. Failure to Utilize Latest Planning Assumptions
MTC has failed to utilize the latest planning assumptions, or to specify its assumptions, as required by the Clean Air Act and its implementing regulations, as follows: the Conformity Analysis fails to include accurate and recent data regarding transit ridership, ridership trends, budget decreases and/or fare increases in the Bay Area; the Conformity Analysis fails to include the latest existing information regarding the effectiveness of transportation control measures; and, the Conformity Analysis fails to include the latest existing information regarding fleet mix and age data for the Bay Area.
Moreover, MTCs conformity finding for the 2003 amended Transportation Improvement Program adopts MTCs conformity analysis for the 2001 Regional Transportation Plan and amended Transportation Improvement Program. By relying on that analysis, MTC has failed to utilize the latest available information and planning assumptions. In addition, the 1997 Conformity Procedures, which have been approved as part of the applicable State Implementation Plan, do not permit reliance on a previous regional emissions analysis. By failing to perform a current emissions analysis for the 2003 amended Transportation Improvement Plan, MTC has, consequently, violated the Clean Air Act and its implementing regulations.
11. Interference with Transportation Control Measures
The 2003 Transportation Improvement Program will, by its funding allocations, interfere with the implementation of the transportation control measures in the State Implementation Plan applicable to the Bay Area. For example, the 2003 Transportation Improvement Plan will result in funding for costly projects that will result in either no short-term increase in transit ridership or a decrease in transit ridership, rather than funding less expensive transit projects that can be implemented more rapidly. In so doing, the 2003 Transportation Improvement Plan interferes with the implementation of TCM 2. According to the Clean Air Act, the TIP must not interfere with the implementation of any TCM in the applicable implementation plan.
12. Failure to Provide Documentation for Key Assumptions
The Conformity Analysis does not provide sufficient support for its key assumptions. In particular, the Analysis fails to provide the assumptions and analysis leading to its projection that transit ridership will increase to 695 million by the year 2020. Moreover, the Conformity Analysis does not adequately explain the emissions reductions credited to various TCMs, including TCMs A, B, C, and D. The Clean Air Act and its implementing regulations require that, for any conformity determination, key assumptions shall be specified and included in the draft documents and supporting materials used for the interagency and public consultation.
These comments are submitted by:
Pat Gallagher and Sanjay Narayan, Sierra Club
Deborah Reames and Rachel Pelc, Earthjustice