December 6, 2006
Mr. Kevin Dant
Kentucky Transportation Cabinet
977 Phillips Lane
P.O. Box 37090
Louisville, KY 40233-7090
RE: PM2.5 Project-Level Conformity Determination Louisville-Southern Indiana Ohio River Bridges Project (LSIORB)
Dear Mr. Dant:
What follows are the comments of River Fields Inc. (River Fields) on the fine particulate matter conformity analysis (the qualitative "hot-spot analysis") for the Louisville Bridges Project.
In summary, under the regulations of the Council on Environmental Quality, it appears that the hot-spot analysis is required to be conducted through a supplement to the Environmental Impact Statement since the Louisville region's non attainment status under the new air quality standards for fine particulate matter represents a significant new circumstance bearing on the project's environmental concerns. The serious public health concerns associated with fine particulate matter emissions warrant an analysis that includes construction emissions given the lengthy time period proposed by the Kentucky Transportation Cabinet on December 1st. An almost 20-year period for construction of the downtown project is not "temporary." Finally, a valid conformity determination also requires a demonstration of compliance with the financial plan requirements for the regional long-range transportation plan. Because the financial plan does not include the LSIORB, federal requirements are not met and a valid conformity determination cannot be made.
Importance of Particulate Matter Analyses to the Health of Regional Residents
Fine particulate matter poses very serious human health risks. Emissions have been linked to premature mortality and respiratory problems, including aggravated asthma, chronic bronchitis, and decreased lung function. River Fields serves on Mayor Abramson's Task Force for Air Quality for implementation of the fine particulate matter standard in the Louisville region and also on the Louisville Strategic Toxic Air Reduction (STAR) work group for implementation of local air toxic control strategies for mobile and other non-stationary sources. Diesel particulates also pose serious air toxic risks to the public, particularly those living in proximity to our interstate system. Children and older citizens are particularly susceptible to these harmful health consequences. In the context of the hot-spot analysis for LSIORB for the new standard and future emission modeling for conformity purposes, emissions from diesel vehicles and construction dust are of primary concern to us.
A qualitative hot-spot analysis should not be viewed as simply a "paper" exercise. The ability to predict, measure, and quantify fine particulate matter emissions associated with construction and operation of this almost $4 billion project, in whatever form it may take, presents a compelling public health consideration for residents of bi-state region.
We note that as far back as January 20, 2001, the Jefferson County (now Metro) Air Pollution Control District (APCD) commented in writing to the Bridges consultants that:"Our first area of concern relates to air quality assessments and assumptions that underly the analyses:
...We find no specific mention of...particulate matter (PM 2.5)...
What have the studies assumed regarding the Louisville area's attainment status for PM 2.5...
This information would be very important to evaluate how any new bridge will impact the air quality for the community."
In its Feb. 18, 2002 comments on the Draft Environmental Impact Statement (DEIS) for LSIORB, the APCD noted:
"The DEIS...did not address the issues of hazardous air pollutants...and the area's status relative to the....PM 2.5 standard.
Emissions from the construction project(s) should have been estimated...
Neither the Draft or Final EIS addressed these issues and concerns.
The Conformity Analysis is Required to be Undertaken Through a Supplement to the LSIORB Final Environmental Impact Statement
The report states that the Louisville KY-IN area was designated by the U.S. Environmental Protection Agency (EPA) as non attainment for the fine particulate matter National Ambient Air Quality Standard on January 5, 2005, effective April 5, 2005 (p. 4). Transportation conformity for the fine particulate matter standards applied on April 5, 2006, requiring a "hot-spot analysis" for certain federally-supported projects. (Id.). The report further states that the hot-spot analysis for the Louisville Bridges Project could not be completed until after the EPA regulations became effective, which was after the Final Environmental Impact Statement and Record of Decision were issued in April 2003 and September 2003, respectively. "Therefore, public review and comment for this hot-spot analysis is being undertaken separately from that of the ORB FEIS (emphasis added)" (Id.).
River Fields disagrees that the analysis can be undertaken separately from the FEIS. Under 40 CFR §1502.9(c), an FEIS shall be supplemented if:
Louisville's non attainment status under the fine particulate matter standards are "significant new circumstances or information relevant to environmental concerns and impacts" of the project and would appear to require a formal supplement to the FEIS for this initial transportation conformity analysis.
Additionally, both the Draft and Final EIS assumed a simultaneous 10-yr. build out of both the downtown project and eastern bridge for the purpose of assessing certain impacts (see, e.g., DEIS, construction impacts, pp. 5-29-5-32). As described below, the current construction schedule now substantially lengthens the downtown component to almost double the assumed schedule in the EIS, a substantial change in the proposed action and one relevant to environmental concerns from construction emissions of fine particulates. Additionally, construction emissions were not evaluated in the EIS, as the APCD requested, and cannot be defensibly characterized as "temporary" to avoid including them in the hot-spot (or future modeling) analysis.
All of these considerations warrant that this analysis be undertaken through a supplemental FEIS pursuant to rules implementing the National Environmental Policy Act.
Analysis Incorrectly Omits PM2.5 Emissions from LSIORB Construction
The conformity analysis did not include fine particulate matter emissions from construction of the LSIORB, stating that "Emissions resulting from construction of the project are not required to be considered in the hot-spot analysis if such emissions are considered temporary according to 40 CFR §93.123(c)(5)" (p. 13). The cited rule provides that temporary increases are defined as those which occur only during the construction phase and last five years or less at any individual site.
There are several problems with the hot-spot analysis regarding construction emissions. First, the construction schedule in Exhibit 6, p. 14, is incorrect and cannot serve as a basis for a valid conformity determination. On Dec. 1, the Transportation Cabinet submitted a required Long-Range Plan for the project that includes a construction schedule (included in these comments as Attachment 1). That schedule is lengthened from the hot-spot analysis schedule, substantially so for the Kennedy Interchange construction. The Cabinet's own document identifies an 18-yr. construction period for the Kennedy Interchange and a 6-yr. period for construction of the Indiana 1-65 approach. In no stretch of the imagination can such activities be considered "temporary."
Second, the EPA rule provides that individual construction "sites" within a project can be analyzed to determine whether they are five years or less. The hot-spot analysis and Exhibit 6 do not define the "phases" of each project segment or the criteria for defining an "individual" construction site. As presented, Exhibit 6 appears to arbitrarily draw project segments in less than 5-yr. increments to avoid assessing construction emissions.
For these reasons, River Fields submits that it is indefensible under the applicable regulations and from a public health standpoint to omit an analysis of fine particulate matter from construction of this megaproject. Section 7.9 of our February 25, 2002 comments on the DEIS also specifically cited the failure to quantify construction emissions as a deficiency of the environmental study process.
A Valid PM2.5 Conformity Analysis Cannot be Made Because the Regional Long-Range Transportation Plan Excludes LSIORB from the Financial Analysis
River Fields has commented extensively on the lack of federally required fiscal constraint in the KIPDA Transportation Improvement Program. We have also commented extensively on the failure of the financial plan in KIDPA's Long-Range Transportation Plan to meet the criteria of 23 CFR §450.322(b)(11) because of the exclusion of LSIORB (see, e.g., June 23, 2003 FEIS comments, Section 2). To our knowledge, a valid transportation conformity determination still requires fiscal constraint and compliance with the 23 CFR Part 450 requirements in transportation plans. The hot-spot analysis fails to address these essential components of a valid conformity determination.
We look forward to a written response to these comments and concerns. Please ensure that these comments are included in the administrative record for the LSIORB project.
Leslie E. Barras
Long Term Planning Report - Louisville and Southern Indiana Ohio River Bridges
Figure 4 (below) presents a visual overview of the LSIORB Project schedule showing the relative completion dates associated with the downtown and East End components of the project.
|State Fiscal Year||2005||2006||2007||2008||2009||2010||2011||2012||2013||2014||2015||2016||2017||2018||2019||2020||2021||2022||2023||2024|
|Section 1 - Kennedy Interchange||X||X||X||X||X|
|Section 2 - I-65 Downtown Bridge||X||X||X||X|
|Section 3 - Downtown Indiana Approach||X||X||X||X||X||X||X||X|
|Section 4 - East End Kentucky Approach||X||X||X||X|
|Section 5 - East End Bridge||X||X||X||X|
|Section 6 - East End Indiana Approach||X||X||X||X|
|Section 1 - Kennedy Interchange||X||X||X||X||X||X||X||X||X||X||X||X||X||X||X||X||X||X||X|
|Section 2 - I-65 Downtown Bridge||X||X||X||X||X|
|Section 3 - Downtown Indiana Approach||X||X||X||X||X||X|
|Section 4 - East End Kentucky Approach||X||X||X||X||X|
|Section 5 - East End Bridge||X||X||X||X||X|
|Section 6 - East End Indiana Approach||X||X||X||X|
IV. Project Estimated Costs
This section provides a detailed description of the cost elements of the Louisville-Southern Indiana Ohio River Bridges (LSIORB) Project and provides current estimates of those costs. It also summarizes the costs incurred to date and provides detail on key cost-related assumptions.
The cost estimate to complete the LSIORB Project is broken down into six project sections plus an "Other" category to capture costs that are not section-specific, such as project-wide mitigation and enhancements. The sections and responsible sponsors are shown in Table 2 (below).
The current cost estimate is based primarily on the state fiscal year 2003 detailed cost estimate that was generated as part of the Financing Options Plan for the Project.21 These costs were reviewed by both states and FHWA for validity of the base estimates and assumptions. The costs have subsequently been updated, adjusted, and inflated to reflect "year-of-expenditure" costs and the current project schedule.
Significant design activities have progressed on Section 1, and the cost estimate for this section has been updated based on current information. Adjustments also have been made to account for new cost information available on Section 4. Similar updates will be performed for other sections as additional section-specific activities proceed.
KYTC Response to Public CommentsRiver Fields' Comment 1.
"The serious public health concerns associated with fine particulate matter emissions warrant an analysis that included construction emissions given the length of time period proposed by the Kentucky Transportation Cabinet on December 1st."
The Transportation Conformity Rule does not require consideration of temporary emission increases from construction-related activities which occur only during the construction phase and last five years or less at any individual site. (40 CFR 93.123 (c) (5)).
Through interagency consultation, and consultation with the Federal Highway Administration's Headquarters (FHWA-HQ) and the Environmental Protection Agency's Headquarters (OTAQ), it was acknowledged that the Louisville Bridge project would be constructed in segments, as the whole bridges project could not be under construction at the same time. It is anticipated that the construction of these segments will be further divided into different individual construction sites. Localized construction emissions can be considered separately. Construction-related emissions at each individual construction site are anticipated to be less than 5 years. Per 40 CFR 93.123(c)(5), such temporary construction-related emissions are not required to be included in the hot-spot analysis.
The PM2.5 Hot Spot Analysis was conducted using the best available information at the time.
The project Record of Decision acknowledges construction related dust and makes commitments to design and construct the project with state of the practice emission controls.
4.1.4 Air Pollution
Construction activities will be performed in a manner that controls emissions from burning (where allowed), drilling, blasting, production of materials, hauling, or any other necessary construction operations of any kind.
Air pollution associated with dust will be effectively controlled through the use of watering, the application of calcium chloride, or other techniques in accordance with the KYTC and the INDOT specifications. Watering work areas to increase moisture and reduce dust will control air pollutants generated by construction.
Contract specifications will dictate that all drilling, grinding, and sawing of rock, shale, concrete, and other similar dust-producing materials be performed with equipment provided with water sprays, fabric-filtered collection systems, or other suitable devices to prevent excessive dust from becoming airborne.
Emissions from construction equipment will be controlled in accordance with emission standards prescribed under state and federal regulations. Equipment must be maintained in proper mechanical condition with original exhaust equipment.
All construction equipment will be required to comply with Occupational Safety and Health Administration (OSHA) regulations.
"A valid PM2.5 Conformity Analysis cannot be made because the regional long-range transportation plan excluded LSIORB from the Financial Analysis."
"Transportation Plans and Transportation Improvement Programs (TIP) must be fiscally constrained consistent with the Department of Transportation's metropolitan planning regulations at 23 CFR part 450 in order to be found in conformity" (Transportation Conformity Rule, 40 CFR 93.108). The ORB project was included in the Louisville Area's Metropolitan Planning Organization's (MPO) Long Range Transportation Plan (LRTP) and TIP which was found to conform on March 3, 2006. The ORB project was included in the regional mobile source emissions analysis and there have been no significant changes in the project's design concept, scope, or implementation schedule, as used in the conformity analysis. Therefore, the project comes from a conforming plan and program in accordance with 40 CFR 93.115.
Further discussion regarding fiscal constraint of the MPO's Plan and TIP can be found at: http://www.kipda.org/files/PDF/Transportation_Division/LRP/H20307.pdfRiver Fields' Comment 3.
"River Fields disagrees that the analysis can be undertaken separately from the FEIS. Under 40 CFR §1502.9 (c), and FEIS shall be supplemented...."
. The PM2.5 project-level analysis conducted for the Louisville Bridges project has found that by meeting the requirements of 40 CFR Part 93, that the project will not:
These findings were properly consulted with the public and appropriate agencies. Based on these findings, the project 1) will not have a significant impact on the PM2.5 air quality in the region, 2) does not require additional review or consideration of alternatives to minimize the adverse health effects under NEPA, and 3) does not require a supplement to the EIS.