Connector Data Faulty, Judge Is Told

By Katherine Shaver
Washington Post Staff Writer
Tuesday, October 30, 2007

Federal highway officials who approved an 18.8-mile intercounty connector underestimated how much the fine particles in vehicle exhaust would affect people breathing nearby, road opponents argued yesterday in a Greenbelt courtroom.

The Federal Highway Administration, they argued, erred by basing its pollution projections on an air quality monitor 1.5 miles from Interstate 95, at the eastern end of the intercounty connector's planned route. Fine particles in vehicle emissions, opponents said, cause the most health problems to people within one-fifth of a mile, making that monitor too far away to be reliable.

That and other errors led to the agency's "scientifically fuzzy" findings that exhaust from vehicles using the six-lane road would not violate federal clean-air standards, said Robert Yuhnke, a Colorado lawyer for the Sierra Club and Environmental Defense.

The three-hour hearing in U.S. District Court was the second and final hearing in two lawsuits aimed at stopping construction of the $2.4 billion toll highway between Gaithersburg in central Montgomery County and Laurel in northwestern Prince George's County.

The case has drawn national attention as highway agencies and environmental groups watch how judges interpret restrictions on "particulate matter" issued by the Environmental Protection Agency in March 2006. U.S. District Court Judge Alexander Williams Jr., who is hearing the intercounty connector case, said he has found "nothing out there" in law journals about "what agencies are required to do" when implementing the new rules.

The judge's decision will determine whether construction will continue on schedule, with the complete road opening by 2012, or whether the state will have to redo parts of its environmental impact study, which could take years. An appeal by either side also could delay construction by two to three years, legal experts said.

Although the judge did not say which way he was leaning, he had more pointed questions, particularly for government lawyers, than he did during the first hearing Oct. 1.

"The question in my mind right now is how confident are you in these [air pollution] calculations?" the judge asked Mark Nitczynski, a U.S. Justice Department lawyer for the Federal Highway Administration.

Williams said he will rule by Nov. 8.

The Maryland State Highway Administration, which began construction this summer, agreed as part of the court case to delay until Nov. 12 any work that would cause major environmental damage.

Particulate matter, especially prevalent in the black exhaust of diesel trucks, can pose serious health problems because it can get deep into the lungs, according to the EPA. It has been linked to aggravated asthma, decreased lung function and premature death for people with heart or lung disease, and it is especially dangerous for children and the elderly, the EPA said.

Nitczynski said the Federal Highway Administration followed the EPA's instructions in its study. He said computer models aren't sophisticated enough to accurately predict how much fine-particle pollution a new road will generate. That's why highway officials -- with the EPA's blessing -- based their predictions on the I-95 air quality monitor, he said.

The EPA regulations "require a qualitative analysis based on the best information you have, and that's what happened here," Nitczynski said.

He said the concentration of fine particles is expected to drop dramatically nationwide after 2010, as new federal standards on vehicle emissions take effect.

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