Arizona Chamber of Commerce and Industry

Greater Phoenix transportation funds could be gone with the wind

The Environmental Protection Agency’s plan to sanction the region encompassing most of Maricopa County over the area’s air quality could initially jeopardize over $1 billion worth of federal transportation funding, grinding project design and construction to a halt while eliminating thousands of jobs.  The ultimate sanctions that EPA could impose could cause a loss of $7 billion in transportation funds with devastating consequences.  The emerging state versus federal showdown over an overly aggressive regulatory position by the EPA could make the battle between Washington, D.C. and Arizona over immigration look like a game of Tiddlywinks.

What unleashed the federal attack dogs on Arizona?  The answer is blowing in the wind.

At issue is the level of particulate matter, known as PM-10.  The Maricopa Association of Governments has investigated why an air quality monitor at West 43^rd Avenue was registering unusually elevated concentrations of PM-10 above the EPA standard during high wind conditions.

MAG’s analysis, along with that of the Arizona Department of Environmental Quality and consultant Sierra Research, indicated that the monitor’s location adjacent to a dusty riverbed was responsible for the high PM-10 readings during exceptionally high wind conditions. 

EPA, however, despite reams of data-backed documentation and strict adherence to EPA’s own procedures for analyzing the documentation, has told MAG and ADEQ that it does not concur with the state’s finding of four high wind exceptional events in 2008. 

As MAG Executive Director Dennis Smith wrote in his May report, “We live in a desert, the monitor is on a riverbank where the wind blows toward the monitor over a smooth terrain and the soil is silty.  Paving the riverbed is not an option!”

Because the high PM-10 readings from the West 43^rd Avenue monitor are not being classified as exceptional events, the PM-10 concentrations measured by that monitor will not be excluded from the determination of whether the region is meeting the PM-10 standards.  Citing the PM-10 concentrations, EPA has indicated that it intends to deny approval of MAG’s Five Percent Plan for PM-10.  The plan describes how the region will reduce PM-10 by five percent per year until PM-10 readings reach their EPA-mandated levels and contains control measures for PM-10 that are as stringent as any in the country

The potential sanctions facing Arizona for its perceived failure to attain proper air quality levels and the disapproval of its Five Percent Plan are stiff ones. 

If the EPA finds that the region failed to attain three years of clean data for 2008, 2009 and 2010 and the Five Percent Plan is disapproved and that decision is finalized in the Federal Register, the region will enter a conformity freeze 30-90 days after the decision appears in the Register.  That will mean that only those projects in the first four years of the Transportation Improvement Plan and Regional Transportation Plan can proceed.  Projects would not move forward unless a new Five Percent Plan is submitted that meets Clean Air Act requirements.

If the problems are not corrected within 18 months, then harsher sanctions would be carried out, including stiff limits on the issuance of air quality permits for industry.  Finally, if air quality standards haven’t been met within 24 months, then over $1 billion worth of federal highway funds could be withheld, putting over $7 billion worth of transportation funds from all sources – and the jobs that come with them – at risk.

The EPA exceptional event rule specifically mentions high wind as legitimate cause of an exceptional event.  EPA acknowledges that its exceptional event rule is flawed, but, despite its shortcomings, the rule must still be implemented.   Moreover, the Arizona submission strictly followed the data requirements used by California’s San Joaquin Valley when it successfully obtained EPA’s approval of its demonstration.  As a result of EPA’s decision, the entire MAG region’s transportation funding is in jeopardy due to naturally occurring high wind, local soil conditions and a flawed rule.

MAG and ADEQ are staffed by highly capable and dedicated public servants.  They cannot, however, control the weather.  ADEQ, which submits the exceptional event documentation on behalf of MAG, intends to submit documentation of seven more exceptional events for 2009.  One can only wonder how the EPA will view those submittals. It’s worth noting that, following a wet winter and spring, there have been no PM-10 exceedances in 2010.  Sometimes Mother Nature works in our favor.

A clear rule with specific, rational requirements prescribing what constitutes an exceptional event needs to be issued by the EPA and codified through the rulemaking process.  There are too many outstanding issues over the implementation of the current rule.  As the 15-state Western State Air Resources Council recently wrote in a letter to EPA, “Our scarce air quality management resources need to focus on problems we can solve, not on problems over which we have little or no control.”

MAG is exploring a legal challenge against the capricious EPA determination and is informing our congressional delegation of the potentially crippling consequences of the sanctions.

One can’t help but think of another more high profile issue when considering this latest difference of opinion between Arizona and the federal government.

The aggressive regulatory position taken by EPA in this air quality case stands in stark contrast to the federal government’s passive approach to immigration.  While the government drags its feet on immigration reform, yet lectures and litigates over Arizona’s response to federal inaction, it ignores scientifically verifiable air quality data and pursues a set of draconian sanctions that could irreparably harm the region’s economy.  More than just a case of misplaced priorities, the EPA’s actions constitute a serious abuse of government power.