AASHTO Comments on Proposed Trichloroethylene Rule

The American Association of State Highway and Transportation Officials recently provided feedback to the Environmental Protection Agency on its proposal to address the “unreasonable risk of injury to human health presented” by trichloroethylene or TCE as part of the Toxic Substances Control Act.

[Above photo by AASHTO Re:source]

AASHTO noted in a letter to the EPA that TCE is widely used as a solvent in a variety of industrial, commercial, and consumer applications. Where state departments of transportation are concerned, the organization noted that TCE is critical to the testing process for asphalt pavement material – and that a wide ranging ban on TCE use would adversely impact their roadway paving capabilities.

“EPA is proposing (in part) to prohibit all manufacture, processing, and distribution in commerce of TCE – and industrial and commercial use of TCE for all uses,” AASHTO noted in its letter. “As part of this ban, EPA is proposing compliance timeframes for certain processing and industrial and commercial uses, including proposed phase-outs and time-limited exemptions of up to 50 years for certain applications.”

AASHTO stressed that while both the organization and the state DOTs it represents “fully support the intent of the proposed regulation to address the health and safety of the workforce,” state DOTs need time to “investigate alternative methods for asphalt testing” with the goal of eliminating TCE from their testing protocols.

“It takes time to research and test alternate procedures to determine their validity in asphalt testing,” AASHTO said in its letter. “Thus we respectfully urge consideration of a time-limited exemption of 20 years from the ban on TCE in laboratory asphalt testing to provide state DOTs with a necessary transition period in which to research and test alternate methods for accomplishing the important work of quality control of the vast amounts of asphalt used on our nation’s transportation system.”

AASHTO pointed out that currently at least 23 state DOTs would be impacted by an immediate ban on TCE, noting that that there are a host of technical reasons – such as the physical properties of the aggregates available in a given state – why some state DOTs specify TCE in their testing protocols. There are also concerns about the use of TCE as it impacts sustainability efforts, for states using recycled asphalt pavement (RAP) and recycled asphalt shingles (RAS) in their pavement mixes require a solvent extraction method to determine the amount of asphalt in the mix, as well as the grade of asphalt, which determines the strength and durability of the product.

The organization is also “highly concerned” that laboratory testing of asphalt is specifically excluded from any phase-outs or time-limited exemptions in the EPA’s proposed rule regarding TCE usage.

“Repeatedly throughout the proposal, asphalt laboratory testing is specifically excluded from the list of laboratory procedures that are granted a temporary exemption or phase-out period for the removal of TCE from their processes,” AASHTO noted.

“As we believe there is a strong case for asphalt testing to qualify for a temporary exemption, it is concerning to see explicit preclusion of this activity,” the organization emphasized. “Banning TCE would impact quality determinations in the use of RAP and RAS, which has been instituted to address federal sustainability objectives and improve environmental product declarations for asphalt mixtures.”

FHWA Issues Finalized GHG Performance Measurement Rule

The Federal Highway Administration recently issued a finalized performance measurement rule to provide state departments of transportation and Metropolitan Planning Organizations with a “national framework” for tracking transportation-related greenhouse gas emissions GHGs, along with the requirement to set their own targets for GHG reduction.

[Above image by FHWA]

Entitled “National Performance Management Measures; Assessing Performance of the National Highway System, Greenhouse Gas Emissions Measure,” FHWA’s final GHG performance rule – located in the Federal Register under docket number FHWA-2021-0004 – largely retains what the agency issued in its notice of proposed rulemaking in July 2022, which required state DOTs and MPOs to establish declining carbon dioxide (CO2) targets for the GHG measure on the 223,668-mile National Highway System (NHS) and report on progress toward the achievement of those targets.

The final rule defines the GHG measure to be the percent change in on-road tailpipe CO2 emissions on the NHS, relative to the reference year of 2022 instead of 2021 – a recommendation the American Association of State Highway and Transportation Officials submitted to FHWA in its commentary on the GHG performance measure.

As a result, state DOTs must establish targets no later than February 1, 2024, with MPOs required to establish targets no later than 180 days after the state DOT.

FHWA Administrator Shailen Bhatt emphasized that this new tool will play a key role in the Biden administration’s effort to cut U.S. carbon pollution in half by 2030.

“Transportation is the leading source of greenhouse gas emissions in the U.S. and reducing emissions from that sector while ensuring our economy works for everyday Americans is critical to addressing the climate crisis,” he noted in a statement. “We don’t expect state DOTs and MPOs to solve a problem this large on their own, which is why this performance measure does not impose penalties for those who miss their targets.”

AASHTO noted in its commentary on the proposed rule that state DOTs “recognize the urgency and need to address and mitigate climate change given its harmful impacts to both the natural and built environment” and thus “strongly support” FHWA’s overall goal and intent of reducing GHGs.

AASHTO further noted that, regardless of FHWA’s GHG measure, all state DOTs are “addressing extreme weather impacts” as part of their transportation asset management plans which serve to guide their investment decisions.

“In addition, many states are developing resilience improvement plans to holistically understand how they can make the transportation infrastructure more resilient to withstand the effects of extreme weather and climate change,” the organization added.

That being said, AASHTO also noted that not all state DOTs have the same ability to directly affect the reduction in GHG emissions, nor do they have control over certain strategies and tactics that may look promising for reducing GHG emissions.

“These strategies and actions will vary by state and, like other state and federal transportation goals, require different approaches appropriate to the specific state context,” the organization noted.

In addition, AASHTO had expressed in its 2022 comments that it does not agree FHWA was provided the necessary legal authority by Congress to establish this particular performance measure, as the approach to establishing the GHG rule could lead to the establishment of new and additional performance measures without explicit Congressional authorization in the future.

Beyond the development of FHWA’s regulation, several states have been engaging in their own carbon-reduction efforts.

For example, in August 2021, the Colorado Transportation Commission proposed new transportation pollution reduction planning standards on August 16 that seek to cut greenhouse gas or GHG emissions from the state’s transportation sector while improving statewide air quality and reducing smog.

Known as the “Greenhouse Gas Pollution Reduction Planning Standard,” that rule aims to “shape” how state and local governments plan projects to ensure future transportation infrastructure supports cleaner air and fights climate change, all while providing more “travel options” to Colorado residents.

As part of that effort, the Colorado Department of Transportation, the Colorado Energy Office, and the Colorado Department of Public Health & Environment developed a “Clean Truck Strategy” in March 2022 that seeks to lower greenhouse gas or GHG emissions from heavy- and medium-duty vehicles by at least 45 percent statewide by 2050.

Meanwhile, the Indiana Department of Transportation issued a Carbon Reduction Strategy document in December 2022. That plan recognizes that, while expected economic growth and heavy freight activity across the state are just some of the headwinds the agency will face in achieving its CO2 reduction objectives, technological advances and deepening partnerships with MPOs, logistics industry, transit agencies and other key stakeholders should help cut GHG emissions across Indiana’s transportation system.

AASHTO Comments on CEQ’s Proposed NEPA Revisions

The American Association of State Highway and Transportation Officials recently submitted a six-page comment letter to the Council on Environmental Quality or CEQ regarding proposed revisions to the National Environmental Policy Act or NEPA.

[Above photo by AASHTO]

The CEQ issued a notice of proposed rulemaking in July in which the agency seeks to create a more “effective environmental review process” that promotes better decision making; ensures full and fair public involvement; provides for an efficient process and regulatory certainty; and provides for sound decision making grounded in science, including consideration of relevant environmental, climate change, and environmental justice effects.

AASHTO noted in its comment letter that it “shares CEQ’s goals” of providing for efficient and effective environmental reviews, ensuring full and fair public involvement, providing regulatory certainty, promoting better decision-making grounded in science, and protecting the environment.

To that end, AASHTO offered a slate of comments regarding CEQ’s proposed rule:

  • The group supports provisions in the 2020 regulations that modernized the NEPA process, improved efficiency, enhanced accountability, and encouraged interagency coordination on compliance with NEPA and the requirements of other environmental laws and supports their retention in CEQ’s proposed rule.
  • AASHTO said CEQ’s NEPA regulations should be legally sound, grounded in the statute – as recently amended by the Fiscal Responsibility Act and recent case law – and build upon well-established principles developed through decades of agencies’ experience implementing NEPA. “The significant regulatory changes over the past few years have caused uncertainty, additional work, delays in project delivery, and litigation risks for projects,” the group said in its letter. “Another significant upheaval to the NEPA process and regulatory requirements will only compound these problems.” 
  • AASHTO noted that there should be no “one-size-fits-all” way to comply with NEPA. “Each transportation project is unique,” the group pointed out in its letter. “Flexibility [is needed] to tailor the NEPA process based on a particular project’s circumstances [so] agencies should be able to meet NEPA’s requirements in a way that minimizes the financial and administrative burdens, informs public decisions, protects the environment, and avoids unintended consequences such as public or agency uncertainty and increased litigation risk.” 
  • AASHTO said CEQ’s NEPA regulations should provide clear direction to agencies, project sponsors and applicants, and the public. “To improve agency and public understanding of the regulatory framework, CEQ should be clear about which aspects of the regulations are statutorily required,” the group emphasized. “AASHTO is concerned that CEQ’s proposed regulations introduce new undefined terms and create new vague requirements, which will lead to delays in project delivery and increase litigation risk for projects. For example, in various areas throughout the regulations, CEQ proposes to replace the term ‘significant’ with the ambiguous and undefined terms ‘important’ or ‘substantial.’”

FHWA Launches Seventh ‘Every Day Counts’ Initiative

The Federal Highway Administration recently kicked off the latest round of transportation innovations through its Every Day Counts or EDC program.

[Above image by FHWA]

The agency noted that EDC is a successful state-based program that helps identify and rapidly deploy proven, yet underused, innovations that facilitate greater efficiency in project delivery at the state, local and tribal levels – saving time, money, and other resources to ensure transportation infrastructure is built better, faster, smarter, and more equitably. It began soliciting ideas for the seventh round of this program, known as EDC-7, back in March.

The FHWA and the Federal Transit Administration are promoting this year’s innovations to help improve project delivery across highway, rail, and transit agencies at the state and local level.

“For over 10 years the Every Day Counts program has rapidly deployed proven technologies and processes that can be implemented at the national scale,” said Acting FHWA Administration Stephanie Pollack in a statement.

Acting Administrator Pollack

She added that this year’s EDC-7 innovations would improve safety for all road users, build a sustainable infrastructure for the future and grow an inclusive workforce.

Notably, FHWA and FTA selected several EDC-7 innovations with multimodal state transportation agencies in mind that should interest transit and rail agencies, too.

“Many of the innovations announced today as part of this forward-thinking program will help make the nation’s transit systems safer, greener, and more equitable,” said FTA Administrator Nuria Fernandez. “We look forward to promoting the findings from these initiatives — from reducing greenhouse gas emissions to leveling the playing field for small businesses to compete for design-build contracts — throughout the transit industry.”

This year’s EDC-7 innovations include:

  • Nighttime Visibility for Safety: The nighttime crash fatality rate is three times the daytime rate. Enhancing visibility along corridors, intersections, and pedestrian crossings can help reduce fatalities. This initiative promotes traffic control devices and properly designed lighting to improve safety for all users, including pedestrians, cyclists, and people who use public transportation and passenger rail services.
  • Next-Generation Traffic Incident Management: Over six million crashes a year in the U.S. put responders and other vulnerable road users at risk. Next-Generation Traffic Incident Management programs promote emerging technologies such as emergency vehicle lighting and queue warning solutions. These and other tools can advance safety and operations to help keep crash responders safe and mitigate traffic impacts after a crash.
  • Integrating Greenhouse Gas Assessment and Reduction Targets in Transportation Planning: Transportation is the largest emitter of greenhouse gases in the U.S. This initiative provides resources to help agencies, regardless of transportation mode, quantify greenhouse gases, and set goals to decrease motor vehicle, construction, and lifecycle emissions through planning and project development.
  • Enhancing Performance with Internally Cured Concrete or EPIC: Cracking in concrete is a limiting factor in achieving long-term concrete performance. Such internal curing can mitigate shrinkage, and cracking, and extend the service life of concrete bridge decks, as well.
  • Environmental Product Declarations or EPDs for Sustainable Project Delivery: Construction materials such as concrete and asphalt have environmental impacts during their life cycle, whether the transportation facility supports passenger vehicles, transit vehicles, or railroad cars. EPDs document those impacts. This tool helps states support procurement decisions and quantify embodied carbon reductions for “sustainable pavements” via lifecycle assessments.
  • Rethinking Disadvantaged Business Enterprises or DBEs in Design-Build: Many design-build contracts do not adequately provide opportunities for disadvantaged businesses. New practices are available to support the effective integration of program requirements to help DBEs compete for design-build contracts for highway and transit projects.
  • Strategic Workforce Development or SWD: The demand for highway workers is growing due to the $1.2 trillion Infrastructure Investment and Jobs Act or IIJA, and emerging technologies require new skills. Thirty-two states are using SWD protocols to promote career opportunities in transportation, with six of those states having institutionalized SWD processes in their workforce programs. A continued focus on taking this nationwide will help stakeholders across the country improve their ability to identify, train, and place highway construction workers, FHWA said, with the focus on SWD expanding to rural and tribal communities to increase career opportunities.

Every two years since 2011, FHWA has worked with state departments of transportation, local governments, tribes, private industry, and other stakeholders to identify a new set of innovations to champion that merit accelerated deployment. The first six rounds of EDC have yielded several innovative project delivery technologies, including prefabricated bridge systems, design-build contracting, project bundling, e-construction, safety initiatives, and more.

FHWA credited the program’s success largely on its close collaboration with states and local partners through a process whereby states select innovations they want to pursue, then establish performance goals for the level of implementation and adoption they want to reach over the upcoming two-year cycle. After finalizing the selection and performance goals, implementation of those innovations begins with the support and assistance of diverse technical deployment teams established for each innovation, including federal, state, and local experts.

In addition, FHWA noted that the Accelerated Innovation Demonstration program and State Transportation Innovation Council Incentive program administered by the agency could complement EDC by providing additional funding and resources to help the surface transportation community accelerate the adoption and standardization of innovative technologies in their programs.

EPA Issues Clean Water Act Section 401 Final Rule

The Environmental Protection Agency issued a final rule on June 1 that it said increases the transparency and efficiency of the Clean Water Act Section 401 certification process in order to promote the timely review of infrastructure projects.

“EPA is returning the Clean Water Act certification process under Section 401 to its original purpose, which is to review potential impacts that discharges from federally permitted projects may have on water resources, not to indefinitely delay or block critically important infrastructure,” explained EPA Administrator Andrew Wheeler in a statement.

He noted that EPA finalized this rule pursuant to the President’s Executive Order 13868 to help spur construction of important energy infrastructure projects. 

The EPA said this final rule overhauls the text, structure, and legislative history of Section 401 for the first time in 50 years in several areas:

  • It specifies statutory and regulatory timelines for review and action on a Section 401 certification—requiring final action to be taken within one year of receiving a certification request.
  • It clarifies the scope of Section 401, including clarifying that 401 certification is triggered based on the potential for a project to result in a discharge from a point source into a water of the United States. When states look at issues other than the impact on water quality, they go beyond the scope of the Clean Water Act.
  • It reaffirms the agency’s statutory responsibility to provide technical assistance to any party involved in a Section 401 water quality certification process.
  • It promotes early engagement and coordination among project proponents, certifying authorities, plus federal licensing and permitting agencies.

Sen. John Barrasso, R-Wyo., chairman of the Senate Committee on Environment and Public Works, endorsed the EPA’s move in a June 2 statement as a way to allow important energy infrastructure projects to “get done faster.”

By contrast, Rep. Peter DeFazio, D-Ore., chairman of the House of Representatives Committee on Transportation and Infrastructure, noted in a statement on June 5 that removing environmental review processes “will not be the magic cure to our nation’s economic downturn” due to the COVID-19 pandemic.

Call for Research Proposals – TERI Database

What is TERI?

The Transportation and Environmental Research Ideas (TERI) database is a central storehouse for tracking and sharing new transportation and environmental research ideas. The Center for Environmental Excellence by AASHTO maintains TERI and keeps all content current. Suggestions for new ideas are welcome from practitioners across the transportation and environmental community.

Examples of Recent Proposals

  • Context-Sensitive Design Options for Workhorse Bridges in Rural Historic Districts
  • Mitigation Values of Wildlife Crossing Enhancements with Transportation Projects
  • Development of Programmatic Agreements for Project-Level Particulate Matter “Hot-Spot” Air Quality Analyses

Proposals are due by June 1, 2020.

For more information and to submit your ideas, visit https://environment.transportation.org/teri_database.