Re: Herald Times: Editorial and Article: I-69 Air Quality Data Withheld
Greg Buck
Individuals & Organizations:
Clearinghouse for Actions Against Interstate 69 in Indiana
http://groups.google.com/group/clearinghouse-for-actions-against-i-69-in-indiana
From: Thomas & Sandra Tokarski <ca...@bluemarble.net>
Date: Sun, Feb 24, 2013 at 9:56 AM
Subject: Herald Times: Editorial and Article: I-69 Air Quality Data Withheld
To: Susan Sammis <sam...@bluemarble.net>
The Herald-Times
Questionable tactics by state and federal highway officials pushing for the completion of I-69 emerge from documents gathered by opponents of the interstate and provided to the H-T.
It’s difficult to say these officials violated the letter of any laws, rules or regulations. But it looks as if they manipulated the system so that information that could have stopped construction, at least for a short time, was suppressed for well over a year.
That’s a violation of the public trust.
It’s a complicated story deciphered on page 1 by H-T writer Bill Strother. But in essence, highway proponents appeared to be surprised by a 2009 vehicle fleet study that showed air quality in Greene County, and thus Section 4 of I-69, might not be good enough to allow any new highway construction. An internal report that showed the data was solid — “quality assured” is the technical term — was not released, seemingly because it would have confirmed that air quality could have been worsened by construction beginning in Section 4 and a number of other highway projects ready to get started in the state. Instead, highway officials called for a second quality assurance study that would take more than a year, thus allowing construction to go forward using data from 2004 on air quality. At the time these decisions were being made, that data was more than six years old.
The thousands of pages of documents procured by the highway opponents through a legal discovery process reveal a lot of “inside baseball” of the highway construction business. But the documents also appear to show a troubling ability of highway officials to skirt the spirit of laws put in place to ensure the health and safety of people in counties where roads are going to be built.
Those officials maintain that the 2009 data was based on an anomaly — the recession meant more people kept older cars rather than buying new ones that would have produced lower emissions. If so, a future study would have revealed that.
Instead, though, the 2009 data they didn’t like was shelved so that construction could go ahead, even though air quality could have been compromised.
This is probably not enough to scuttle the I-69 project, but it is the core of a lawsuit working its way through federal court. The judge in the case will decide if anyone in government did anything egregious and if the highway construction project schedule will be altered.
But the information uncovered by those opposed to the highway is enough to make one wonder what reports could have been suppressed, what studies could have been manipulated, what “facts” could have been fudged.
We want to have faith in government, assurance that both the spirit and the letter of the law are being followed. This episode makes us question that.
State and federal highway officials delayed an emissions report for more than a year, and opponents of I-69 charge it was because they feared the results would hold up construction on Section 4 of the interstate, which will pass through Greene and part of Monroe County.
In the end, 2004 data, which showed Greene County’s vehicular emissions were within required limits, were used in the environmental impact statement for Section 4 rather than newer data from 2009.
The later data, which officials had waited for, expecting it would yield better results, actually showed higher estimated emission levels.
The emissions report was important because it had to show Greene County in compliance with Clean Air Act standards for ozone pollution before the federal government could approve the Section 4 plans, making it eligible for federal dollars.
Seeking temporary injunction
Attorney Mick Harrison, representing groups and individuals opposed to the highway, said he plans to seek a temporary injunction within the next two months that would halt work on the project, already under construction across much of the Section 4 route, to at least allow time to incorporate the new data into an amended environmental report.
His motion would be part of a federal lawsuit filed in August of 2011 that alleges violations of several federal laws, including the National Environmental Protection Act and the Clean Air Act, by state and federal highway officials in the design, planning and construction of the highway.
Harrison and the plaintiffs say any delay in the start of construction on Section 4 took on new urgency with the announcement in May of 2010 by then-Gov. Mitch Daniels that he was “fast tracking” the project, moving up the targeted completion date for that section to late 2014.
Email trail
Through the lawsuit’s discovery process, plaintiffs gained access to hundreds of email communications that were exchanged among officials with the various agencies and consultants working on the project.
A sequence of emails that began in 2009 and ran through mid-2010 shows that officials at first looked forward to the new data because they believed it would reveal improvement in the emissions measure — new cars having generally lower emissions than older ones. But they then showed concern when the data showed an older vehicle fleet in Greene County than expected. The older fleet would likely put the county out of compliance with ozone pollution standards.
In an email dated May 19, 2010, Laurence Brown, a transportation modeler for the Indiana Department of Transportation working on the new Indiana data, told Larry Heil, the air quality and environmental specialist for the Indiana Division of the Federal Highway Administration, that “FYI ... The most notable (finding) is there are significantly less new cars being purchased and thus in the fleet than six years ago.” The data itself was drawn from Indiana Department of Motor Vehicles registrations and analyzed to determine overall emission levels for each county based on age, make and model of registered vehicles.
In a July 15 email, Brown told Brian Callahan at the Indiana Department of Environmental Management that he’d attached the first draft of an internal quality assurance report on the 2009 data for Callahan’s review. “Let me know what you think ASAP, please. I’d love to get this out Friday (tomorrow ... or today if you’re reading this on Friday)”. He and Callahan were working together on the report, which was important to a much larger audience than only those interested in advancing plans for the new interstate.
Counties in 10 of the 12 Metropolitan Planning Organizations in Indiana also had to use the data to prove they were in compliance. If they failed, only new projects that directly involved safety would be eligible for federal support. Failure to meet pollution standards would mean most major road projects planned for the state’s most populous areas would grind to a halt.
Plans revised
By the next day, Brown told his counterpart at IDEM that the situation had changed. He wrote that “After much discussion here at INDOT, they would like us to wait to distribute this document. There are some concepts with regard to future year age distributions that my superiors believe would be valuable in this document. Concepts that will remove, to a degree, the economic downturn that this snapshot in 2009 represents ...”
In the July 15 draft, the version Brown wanted Callahan to examine and which ultimately was not finalized or approved, the two authors had written in their conclusion that they had “reviewed these data and have not found any aspects that are unreasonable. We consider these data to be quality assured. Please inform us of any data in your area that appear questionable.”
Concern about context
On the same day and a few hours before Brown told Callahan that the data release was being delayed, the state transportation department’s principal planner, Steve Smith, was in email communication with Vincent Bernardin Jr., with Bernardin Lochmueller & Associates, the state’s consultants on the I-69 project. Smith attached the draft quality assurance report, pointing out a quote from the Environmental Protection Agency that he’d provided Brown, who then had added it to the document.
The quote pointed out that such analyses as the emissions data provided only a snapshot for a particular year, and that the agency had applied “curves,” essentially a statistical accounting that leveled data from anomalous years (such as recession years) so that predictability would be more adequate.
Bernardin responded a couple hours later that “we may have to add more to the end (of the document, where the EPA quote had been inserted) to show curves for the data and how they do reflect the local data and decreasing number of new vehicle purchases but a stable situation in the future with new vehicle purchases lower than several years ago but higher than in the past couple years.”
An hour after that message, Brown emailed his co-author at IDEM that the data release was being delayed.
An appeal
One of the next links in the email chain came almost two weeks later, on July 28, 2010, in a message from Patricia Morris with the federal Environmental Protection Agency. She was forwarding to a colleague for his review the proposed “data curve” that Bernardin was hoping the EPA would approve, which she attached to her email.
In his appeal, Bernardin had written: “The issue of unique historical events that would represent an unreasonable assumption for future years is evident in the raw 2009 data. It would clearly be unreasonable to assume such low new vehicle sales for two years before each future analysis year.” He then explained that he had applied a statistical analysis the EPA had itself used to deal with similar data anomalies, and that while it showed a somewhat lower rate of new car purchases, it did not replicate “the unique historic downturn of the last two years.”
The exact response to the appeal on curving the data is not shown in the email chain, but in an interdepartmental email from an author who is not identified, it is clear the EPA turned down the curve request, saying that such curving in this instance would not be permitted because it would violate agency policy that required showing a younger vehicle fleet than had existed in the past.
Uncomfortable with data
On the afternoon of Aug. 12, 2010, highway administration official Heil emailed Smith at the state, saying he had told the EPA’s Morris his agency was uncomfortable with using the statewide 2009 emissions data without an outside check. He wanted to use a source independent of motor vehicle registration records.
Heil said in his email that Morris had agreed with his assessment that a thorough independent quality assurance test by an outside consultant should be done before using the data in counties that were or had been out of ozone compliance.
“Pat agreed this seemed like a reasonable approach, and that there is precedent to support that new vehicle fleet mix data does not need to be used until we have quality assured it is sound for use on a statewide basis.” At Bernardin’s suggestion, he added in the email that it was understood there already had been an internal quality assurance that compared 2004 data with the later information.
He continued: “Bottom line is that FHWA does not want to use the new vehicle fleet mix until we have quality assured it statewide and we are confident there are no systemic deficiencies with the data.”
He said that two metropolitan planning districts that were already preparing emissions reports should continue with the 2004 data.
“Likewise, the Greene County demonstration should continue to use the 2004 data, until the new data has been qualified on a statewide basis.”
Interagency agreement
Minutes of an interagency conference call on Aug. 17, 2010, show that representatives from the state highway department, the EPA, the state environmental management department and consultant Bernardin agreed that one purpose of the conference was to confirm that a complete quality assurance check had not been completed on the 2009 data and that “it still remained to quality assure the number of new vehicles, less than five years old, in the 2009 data, particularly since this is the key difference between the 2004 and 2009 data.”
The minutes also show that Bernardin had identified a potential source of independent data and that while such data collection “should not take an undue amount of time, in the context of I-69, it was reasonable to move forward with the Greene County ozone conformity analysis using the previously quality assured 2004 data.”
The minutes show that all participants agreed the 2009 report should be run through a new quality assurance check.
A consulting firm, Wilber Smith, Associates, was hired to do the new test and provide guidance to state and local officials with the various metropolitan planning organizations. More than a year later, on Oct. 25, 2011, the consultants released their final report. Its conclusion was that while most of the figures from the original report were trustworthy, the quality assurance process called for an upward adjustment of 5.8 percent in the light truck census.
The federal government issued its Record of Decision for Section 4 — essentially the go-ahead for work to begin — about six weeks before that, on Sept. 8. The environmental impact statement for Section 4, including the record of ozone compliance, had been approved almost a year earlier.
Let record stand
INDOT spokesman Will Wingfield said last week it is the department’s policy to withhold comment on pending litigation. Instead, he referred to the department’s response to a question on the data from the Monroe County Metropolitan Planning Organization, which had to add the portion of Section 4 to its official program before it could go forward.
In that response, the agency noted that the required “conformity demonstration” showing Greene County emissions in compliance with air quality requirements was included in the Section 4 environmental impact study finalized in December of 2010.
The Federal Highway Administration, IDEM and EPA found that the analyses and documentation that were the basis of the report met the conformity rule’s criteria.
Heil said Thursday that his department’s policy also limits comment on cases involving pending litigation. But he added he is completely confident the work on the emissions report was sound. “I feel very good about everything we did,” he said, and it was in a “technically sound position. A legally sound position.”
He added the entire issue will soon be a non-issue, in that the federal rules that guided the work will be revised or revoked this summer.
Consultants Bernardin Lochmueller & Associates declined to comment because the matter is under litigation.
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Timeline of the clean air issue
May 2010 — Indiana Gov. Mitch Daniels “fast tracks” I-69, Section 4.
May 19, 2010 — First email note that latest automotive census shows the latest state automotive fleet count, collected in 2009, includes significantly fewer new cars than in past years.
July 15, 2010 — Email asks co-author of internal “quality assurance” check of 2009 fleet data to review report’s draft for possible release the next day.
July 16, 2010, 10:36 a.m. — Transportation official emails consultant asking for a review of report with an added paragraph raising the issue of reliability based on unique occurrences (such as recession).
July 16, 2010 — 12:38 p.m. — Consultant responds that more might need to be added to show “curves” that would account for the dip in new car sales during recession years.
July 16, 2010, 1:48 p.m. — Email announcing that “after much discussion” within the transportation department, distribution of the document was being delayed.
July 28, 2010 — EPA official asks colleague to review request by consultant to “curve” 2009 data to reflect recession.
(undated email) — Indicates EPA has turned down “curving” proposal.
Aug. 12, 2010, 3:37 p.m. — Federal Highway Administration email to state highway official that says after consultation with EPA, it has been agreed that further quality assurance of the 2009 data should be done and that meanwhile, 2004 data should be used for Greene County and other areas of the state.
Aug. 12, 2010, 6:01 p.m. — Consultant revises and returns to sender email authorizing use of 2004 data; revision points up need for independent check of counts of vehicles less than five years old, and that an internal check of 2009 results against 2004 results already had been carried out.
Aug. 17, 2010 — Minutes of a phone conference note interagency agreement to proceed with external quality assurance check on 2009 data and use of 2004 data for current needs, including for Greene County’s emissions report.
July 2011 — Final Environmental Impact Report for Section 4 of I-69 is released.
Sept. 8, 2011 — Federal Record of Decision, which freed federal money for Section 4 construction, is issued.
Oct. 25, 2011 — Final external quality assurance report for 2009 automotive fleet data is released.