20120285_Other Agency Comments_20090723

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] WEST FRANKLIN STREET SUITE 330 Facsimile 919 929 9421
CHAPEL HILL NC 27516 2559
July 21 2009
Ms Jemmfer Harris
NC Turnpike Authority
1578 Mail Service Centel 5200
77 Centel Drive Suite 500
Raleigh NC 27699 1578
(jennrfer harrrs@ncturnprke org)
VIA US MAIL AND E MAIL
JUL 2 3 2009
,, - Y- a,
Re Diaft Enviromnental Irnpact Statement for Gaston East West Conriector Project
Dear Ms Harris
On behalf of the Carolinas Clean Ali Coalition and the Catawba Riverkeeper the
Southern Environmental Law Center ( SELC ) offers the attached cormments on the above
referenced draft Environmental Impact Statement ( DEIS ) prepared by the Fedeial Highway
Administration the North Carolina Department of Transportation ( `NCDOT ) and the North
Carolina Turnpike Authority (the Transportation Agencies ) The DEIS analyzes the impacts
of the proposed alternatives for the Gaston East West Comiector project ( the Project )
In oui comments we identify a number of issues related to the proposed Project which
we believe require significantly gieatei disclosure and analysis to comply with the National
Enviionmental Policy Act ( NEPA ) and other federal and state laws relevant to the potential
eventual peimitting of this project The key shortcomings of the DEIS include the following
The DEIS presents inflated estimates of traffic volumes along area roadways
including estimates for recent years that far exceed the traffic volumes actually
observed by NCDOT , which skew the analysis of the Project s purpose and
alternatives
The DEIS claims that the Project would serve the purpose of iellevnlg congestion on
US 29/74 US 321 and I 85, but the data presented in the DEIS shows that traffic
congestion would either grow worse or remain the same along these roadways
Common sense upgrades to the area s highway, transit and fi eight rail facilities
which in various combinations could address congestion on 185 receive only
cursory consideration in the DEIS
Chailottesville Chapel Hill Atlantd Asheville Charleston Richmond Washington DC
100/ recycled paper

r
The DEIS does not analyze an quality impacts including the project s significant
contribution to greenhouse gas emissions or explain how the project would not
hamper achievement and maintenance of air quality standards under the Clean Air
Act
The DEIS does not adequately assess how the project —and the development it would
induce — will impact aheady impaired water quality in the area nor offer any
information about the substantial wetlands and stieain mitigation that would need to
occur within the Catawba River basin
The immense scale of this project 219 miles of new lughway into a relatively
undeveloped portion of Gaston County at a cost of $1282 billion calls for an especially
thorough review under NEPA The DEIS however belies any notion that its authors undertook
an objective evaluation which might have favored a transportation investment at odds with the
North Carolina Turnpike Authority s narrow mandate under NCGS 136 176(b)(2) construction
of the Gaiden Paikway The numerous and significant shortcomings of the DEIS prevent
meaningful review of the Project its many far reaching impacts and potential alternatives We
urge the Transportation Agencies to revise their analysis of alternatives and impacts according to
the recommendations set forth heiein and to issue a revised Draft Environmental Impact
Statement for public review and comment
Sincerely
J David Farren \�v�
Semoi Attoiney
Thomas M Giemillion
Associate Attorney
Cc (via US Mail)
Eugene A Conti NCDOT
John Collett NCDOT

Deborah M Barbour NCDO r
Robert A Collies NCDOT
John F Sullivan IJI, FHWA North Carolina Division
Keith Overcash N C Division of Au Quality
Melba McGee NCDENR
Polly Lespmasse NC Division of Watei Quality
Honorable Pat McCrory Mayor of Chai lotte
Honorable Jennie Stultz Mayor of Gastonia
Honorable Richard Boyce Mayoi of Belmont
Honorable Ronnie Murphy Mayor of Cramerton
Honorable Feuell Buchanan Mayor of McAdenville
Dewitt Haidee NC Department of Agriculture and Consuinei Services
Angeline Rodgers, Mountains Freshwatei Ecologist
Heinz J Mueller US EPA Region 4
Steve Lund US Army Corps of Engmeeis
Marella Buncick USFWS
Rick Gaskms Catawba Riverkeepei
June Blotmck Caiolmas Clean An Coalition
TG /kd

Comments on the Draft Environmental Impact Statement foi Gaston East West Connector
Prod ect
July 21 2009
By David Fairen and Thomas Gremiihon
Southern Environmental Law Center
200 West Franklin Stieet Suite 330
Chapel Hill NC 27516
[phone]
www southernenviroiunent oig

TABLE OF CONTENTS
I Introduction
I
II Basic NEPA Requirements
2
III Purpose and Need
2
1 Project Needs and Goals
2
2 Regulatory Framework
3
3 Deficiencies in the Purpose and Needs Section
3
A Connectivity
4
B Inflated Traffic Piojections
6
C Suggested Statement of Purpose and Need
8
N Alternatives Analysis
9
1 The Proposed Alternatives
9
2 Regulatory Framework
9
3 Deficiencies in the Analysis of Alternatives section
9
A Alternatives to Connecting the Area Adjacent to the Toll Road Conrdoi
10
B No Objective Evaluation Based on Empirical Data
10
C The Projects Impact on Congestion
12
D A Complete Presentation of Costs
14
E Environmental Justice
14
V An Quality Effects
15
1 Crrter ra Pollutants
15
A Ozone
15
r The Regulatory Framework
15
rr The DEIS Consrdeiation of Ozone
15
B Particulate Matter
17
2 Federal Aid Highway Act Section 109 Air Toxres
20

A Consideration of Non Prior rty MSATs
VI Gieenhouse Gas Emissions
l Fedei a] Climate Change Regulation
2 State Envuomnental Planning Regulations
3 NEPA Requirements to Consider GHG Emissions
4 Consideration of GHG Emissions rn the DEIS
VII Wetlands and Water Quality
1 Regulatory Backgi ound
2 The DEIS Consideration of Water Quality Impacts
3 The DEIS Consideration of Wetlands Impacts
VIII Conclusion
u
1
18
19
20
21
22
23
24
24
25
26
27

I INTRODUCTI ®N
As the DEIS points out the genesis of the Gaston East West Commector dates back to the
late 1980s Billed as the US 321/74 Bypass' the original project would have looped around
Gastonia from the Chailotte Douglas Airport westward over the Catawba River through
southern Gaston County across US 321 and I 85 and then northwaid past the town of Dallas
eventually reconnecting with US 321 In 2001 the bypass adopted a new name the Garden
Parkway and in 2005 the Garden Parkway split into two projects the US 321 B) pass and the
Gaston East West Connector If built to completion the Gaston East West Connectoi would end
at 185 west of Gastonia
In the DEIS the Tiansportation Agencies have refashioned the Gaston East West
Connector as a toll highway Despite the novelty of toll loads in North Carolina the project
described in the DEIS represents a 20th centur y solution for North Carolina s 21St century
mobility challenges
The Project would cost over $12 billion Anticipated toll revenues would only finance a
fraction of that amount State and federal funding would have to cover the rest diverting
transportation dollars that could be used to address the Charlotte area s documented
transportation needs which this pioject will eventually worsen The Project would fuel
spiawling development outward fiom Charlotte transforming the bucolic landscape of southern
Gaston County impeding the growth of transit oriented development in the Charlotte
metropolitan area and thwarting plans to expand the city s light rail network to the Charlotte
Douglas Airport and elsewhere The resulting auto centric development would cause traffic
volumes to increase along much of I 85 and other mayor highways in the Gaston County making
traffic operations worse on those roadways It would hamper the Charlotte region s efforts to
come into compliance with the Clean Au Act when the area is having great difficulty in attaining
air quality standards and facing a potential loss of federal transportation funding And rt would
degrade already impaired water quality in the Catawba River basin Yet the DEIS falls to
credibly identify how the Project would satisfy any legitimate transportation need
Given its scale cost and regional importance the Transportation Agencies evaluation
of the Project under NEPA must be equally rigorous Instead the Agencies have issued a DEIS
that suffers from multiple maccuracres omissions and other shortcomings The DEIS
mrsc.haracterrzes the conditions in the area that purportedly establish a need for the Project It
provides only a cursory treatment of induced population growth and it falls to adequately assess
the Project s impact on water quality air quality and the overall quality of life in the Charlotte
area These shortcomings prevent the meaningful and informed evaluation of the Project as
required by NEPA The Agencies should issue a revised DEIS that fully addresses these impacts
and includes careful evaluation of a viable upgrade alternative that responds to demonstrated
needs such as a lack of mobility options for area residents insufficient freight rail capacity and
1

traffic bottlenecks at points such as the mteichange of 185 and US 321 and the US 29 74
Catawba River crossing
II BASIC NEPA REQUIREMENTS
The National Enviionmental Policy Act 42 U S C § 4321 et seq (NEPA) embodies a
broad national commitment to protecting and promoting environmental quality Robe'tson v
Methoiv Valley Citizens Council 109 S Ct 1835 1845 (1989) NEPA implements this
commitment by focusing government and public attention on the environmental effects of a
proposed agency action ensuing that important environmental consequences will not be
overlooked or underestimated only to be discovered after resources have been committed of the
die otherwise cast In short NEPA requires that the evaluation of a project s environmental
consequences take place early in the projects planning process No'th Buckhead Civic Assn v
Skinne' 903 F 2d 1533 1540 (11th Cir 1990)
The preparer of an EIS must go beyond mere assertions and provide sufficient data and
reasoning to enable a ieadei to evaluate the analysis and conclusions and to comment on the EIS
Silva v Lynn 482 F 2d 1282 1287 (1st Cir 1973) In particular the discussion of alternatives
should be presented in a straightfoiwaid compact and comprehensible manner Id
Equally important an EIS provides the basis foi a decision under Section 404(a) of the
Clean Water Act 33 U S C § 1344(a) which authorizes the Corps of Engmeeis to issue permits
for the discharge of dredged or fill materials into wetlands of other waters The Corps must deny
applications for section 404 permits if [t]here is a practicable alternative to the proposed
discharge that would have less adverse effect on the aquatic ecosystem, so long as such
alternative does not have other significant adverse environmental consequences 33 C F R §
320 4(a)(1)
III PURPOSE AND NEED
1 Protect Needs and Goals l
The DEIS identifies the purpose of the Gaston East West Connector Project as addressing
the following needs
• To improve east west mobility in the area around the City of Gastonia between Gastonia
and the Charlotte metropolitan area and between southern Gaston County and western
Mecklenburg County
• To improve traffic flow on I 85 US 29 74 and US 321 in the Project area t
' Turnpike Authoirty Engineer Jennifer Harris was reported in the Belmont Banner News (July 1 2009) to have said
that project s purpose is not to alleviate congestion on 1 85 but i ater to help establish connectivity and mobility
beWeen Gaston and Mecklenburg counties She reportedly iefened headers to page 1 3 of the DEIS That section
reads
2

O To provide high speed safe reliable regional travel service along the I 85 corridor [1 3]
The DEIS explains that the agencies measured each alternative s satisfaction of the pioject
purpose by the extent to which it could 1) reduce travel distances and tunes between sample
origins and destinations in the project aiea 2) provide a highway between Gaston and
Mecklenburg County that operates at LOS D or better and 3) reduce congested vehicle miles
traveled and /or congested vehicle hours traveled in Gaston County compared to the No Build
Alternative in 2030
2 Regulatory Framework
NEPA regulations require the Agencies to provide a statement specifying the underlying
purpose and need to which the agency is responding in proposing the alternatives including the
proposed action 4Q CFR § 1502 13 An agency may not nanow the objective of its action
artificially and thereby circumvent the requirement that relevant alternatives be considered City
of New York v Dept of Transp , 715 F 2d 732 743 (2d Crr 1983) Rather an agency must look
hard at the factors relevant to the defined purpose and define goals for its action that fall
somewhere within the range of reasonable choices Id One obvious way foi an agency to slip
past the structures of NEPA is to contrive a purpose so slender as to define competing
reasonable alternatives out of consideration (and even out of existence) ' Davis v Mineta 302
F 3d 1104 1119 (10th Cn 2002) quoting Simmons v United States Army Corps ofEng'rs 120
-F 3d 664 666 (7th Crr 1997) Unfortunately this DEIS takes such an approach
3 Deficiencies to the Purpose and Needs Section
The Purpose and Needs section of the DEIS is ambiguous imprecise and inaccurate
The DEIS fails to justify its focus on connecting southern Gaston County and western
Mecklenburg County presenting a confusing anay of data from variously defined geographic
locations The section presents traffic forecast data that is demonstrably false In general rather
than identifying an underlying purpose that the pioject might fulfill the DEIS restates the
specific project design that meets the North Carolina Turnpike Authority s mandate to build the
Garden Parkway' toll road The resulting project purpose is too narrow to support
The pLupose of the proposed action is to improve east west transportation mobility in the area around the
City of Gastonia between Gastonia and the Char lotte metropolitan area and particulai ly to establish du ect
access between the rapidly glowing area of southeast Gaston County and western Mecklenbulg County
This project purpose is based on the following needs
Need to improve mobility access and connectivity within southern Gaston County and between
Southern Gaston County and western Mecklenburg County
Need to improve ti affic flow on the sections of 185 US 29 74 and US 321 in the Pi oject Study
At ea and improve high speed safe i eliable regional ti avel service along the 185 cot r tdot
(emphasis added)
The language of the DEIS plainly indicates that a majoi pioject purpose is to alleviate congestion on 185 In any
event to the extent that the Turnpike Authority now concedes that this project will not serve this stated purpose
SELC agrees
3

consideration of the seasonable range of alternatives requned by NEPA Consequently it is also
insufficient to support the identification and permitting of the least damaging practicable
alternative that meets the underlying purpose of the pioject as required under CWA § 404
The contirved and misleading nature of the DEIS Purpose and Needs section offers
compelling evidence of the need to put the responsibility for conducting the NEPA process for
proposed highway projects in the hands of an agency other than the North Carolina Turnpike
Authority The state legislature has appropriated $35 million annually to the Turnpike Authority
to pay debt service or related financing expenses on revenue bonds or notes issued for the
construction of the Garden Parkway 2 Without construction of the Garden Parkway the
Turnpike Authority is not eligible to receive this funding Not surprisingly the Turnpike
Authority staff and consultants that serve as the primary authors of the DEIS have created a
document that is biased in favor of constructing the toll road on which the agency s funding
depends
A Connectivity
Much of the DEIS alternatives analysis emphasizes the project s purpose of providing
direct access between the rapidly growing area of southeast Gaston County and western
Mecklenburg County [1 3] Yet the DEIS provides no evidence that connecting the areas
actually to be served by the highway will respond to the needs of anyone other than real estate
developers
The DEIS reports that [1]rmrted crossings of the Catawba River are constraining travel
between Gaston and Mecklenburg Counties [1 2] A textbox in the DEIS emphasizes There
are only four bridges over the Catawba River between Gaston and Mecklenburg Counties None
are in southern Gaston County [1 9] The DEIS declines to mention that NC 49 crosses the
Catawba river and provides access to Charlotte eleven miles south of the US 29 74 bridge dust
over the Gaston County border And the DEIS declines to explain why only four bridges
across the Catawba River in Gaston County represents a problem other North Carolina rivers in
other North Carolina counties are spamied by less than four bridges In general the DEIS fails to
show that an additional bridge over the Catawba Rrvei would respond to any existing mobility
need south of the existing bridges
The DEIS claims that the Project must accommodate rapid growth in the pioject area
because this growth will increase demands for accessibility and connectivity [1 2] But growth
in the project area has concentrated along the I 85 and US 29 74 corridors in areas that would
benefit little from a new toll highway 5 10 miles south of I 85 Indeed the DEIS traffic
projections predict that the new toll highway would cause further traffic congestion on much of
I 85 and US 29 74 hampering the mobility of residents in these existing communities
The DEIS suggests that a sizable population currently resides neat the planned corridor
for the toll highway and that this population is growing rapidly But the DEIS misleads the
reader referring to different geographic areas depending on whether the analysis relates to
population and economic growth of transportation mfiastructure For example the DEIS reports
Z N C G S 136 176(b2) (effective July 1 2010)

that between 2000 and 2008 the number of residences in southern Gaston County and western
Mecklenburg County has increased approximately 24 percent [1 21 But most of this growth
occurred within Mecklenburg County Gaston County actually grew at a slower rate than the
state as a whole during this period —an estimated 8 5% between 2000 and 2008 compared to
14 6% for the state as a whole 3
Moreover most of this slower than average growth occurred outside of the project area a
fact that the DEIS mischaracterizes The DEIS cites the Gaston County Coinpi ehensrve Plan to
support its claim that `[p]lamied growth in southern Gaston County will result in an increased
need for east west mobility noting that the population grew fastest between 1990 and 2000 in
the Southeast Small Area [of Gaston County], accounting for approximately 58 percent (8 947
persons) of the population growth in Gaston County from 1990 to 2000 [ 1 18] In light of this
rapid growth in southeast Gaston County it seems puzzling that none of Gaston County s foul
budges over the Catawba River `are in southern Gaston County [1 91 But the DEIS fails to
point out that its definition of' southern Gaston County does not include all of southeast
Gaston County As Figure 1 6 shows the Southeast Small Area defined in the
Comps ehensive Plan includes the US 29 74 and 185 corridors and indeed most of the
population growth in Gaston County' occurred in this corridor in towns like Belmont and
Cramerton well north of the proposed project area [1 -18]
Given the DEIS s emphasis on connecting southern Gaston County the Transportation
Agencies should give the reader a precise definition of that area s borders They should make
consistent references to the area in question particulaily with respect to economic and
population growth on the one hand and the area s tiansportation facilities on the other In
reporting that none of the county s four bridges aie in southern Gaston County [1 9] the
DEIS implies that `southern Gaston County lies below the US 29 74 corridor but the DEIS
presents no population or economic growth data for this area A better approach would be to
adopt the Gaston County planners definition of southern Gaston County —a combination of
the southeast and southwest Gaston County Small Areas —in order to assess what kinds of
tiansportation facilities may be needed to accommodate population and economic growth in that
same area Notably, according to the Gaston County planners definition southern Gaston
County includes much of US 29 74 and 185 including where they c loss the Catawba River
and so the DEIS should consider 1 educing + congestion on these routes as a means of connecting
southern Gaston County and western Mecklenburg County
As it is currently presented in the DEIS the purported need to address Poor
Connectivity Between Gaston County and Mecklenburg County and Within Southern Gaston
County is not coherently defined and the project s ability to meet this need better than other
alternatives is unsupported by any quantifiable data This muddled analysis does not allow the
public to meaningfully evaluate thus project against a range of reasonable alternatives as
required by NEPA
3 See U S Census Bweau Gaston County Quick Facts m,adable at
http //guickfacts census goy /gfd/states/ _17/37071 html
5

B Inflated Traffic Projections
In addition to colmectivity the DEIS articulates a second need foi this pioject congestion
on the project area s mayor roadways 4 The DEIS presents traffic forecasts that exaggerate the
level of traffic congestion on I 85 US 29 74 and US 321 making the need for improvements
seem urgent Ironically as discussed in Section III the DEIS s Alternatives Analysis
demonstrates that the Gaston East West Connector would actually increase traffic volumes and
congestion along much of these roadways But the DEIS interprets that data to support its claim
that a new location toll highway improves traffic flow and some levels of service on I 85 US
29 74 and US 321 This interpretation does not withstand scrutiny
The DEIS Purpose and Need Section presents four tables with Existing and Projected
Traffic Volumes and Levels of Service foi 185 US 29 74 US 321 and 1485 The ` existing
traffic volumes are foi the year 2006 yet their source is not the NCDOT Traffic Survey Group
which observes the traffic on these roadways at least biannually with the aid of 40 000 Portable
Tiaffic Count (PTC) Stations Rathei the DEIS cites a consultant s report the Gaston East West
Connector (U -3321) Ti affic Forecasts for Toll Alternatives (Martin / Alexiou / Bryson August
2008) Despite having authored these forecasts in 2008 the consultants who produced them
apparently did not take the opportunity to verify the accuracy of their forecasts against the
observations of NCDOT s Traffic Survey Group Had they done so they would have found that
they have inflated virtually every estimate of existing traffic levels in 2006 in some cases
more than doubling the actual traffic that was contemporaneously observed on these roadways
The following table compares a few of the DEIS existing traffic estimates with data
from the NCDOT s Traffic Survey Group
US 29 74
Segment
_
DEIS 2006
Projection
Actual Observed
Volume (2006)
Discrepancy
W An line Ave
W Rankin Ave
DEIS 2006
Actual Observed
13 100
Front
To
Projection
Volume (2006)
Discre ancy
NC 273 (Palk
Lakewood Rd
Stieet)
33 600
17 000
16 600
NC 273 (Paik St)
NC 7 (Catawba St)
43 700
20 000
23 700
US 321 Segment
From
To
DEIS 2006
Projection
Actual Observed
Volume (2006)
Discrepancy
W An line Ave
W Rankin Ave
21 400
8 300
13 100
Foibes Rd
Ci owders Ci eek
Rd
13 500
11 000
2 500
4 As discussed sups a note 1 the Turnpike Authority may have disclaimed this project purpose Whatevei the intent
of the Turnpike Authority these comments address the representations made m the DEIS and whether the DEIS
complies with NEPA and CWA § 404

185 Segment
DEIS 2006
Actual Observed
Front
To
Projection
Volume (2007 s
Discrepancy
Exit 4 (NC 160)
Exit 19 NC 7
52 000
59 000
7 000
Exit 17
(Ozark Ave)
97 400
96 000
1 400
Exit 20 — NC 279
Exit 19
(New Hope Rd)
109 600
102 000
7 600
Exit 20
Exit 21 — Cox Rd
(SR 2200)
111 200
106 000
5200
Exit 27 — NC 273
Exit 26
(Palk Stieet)
126 800
117 000
9 800
As the table shows, the discrepancies between these figuies ale in the tens of thousands
In the case of traffic along US 29 74 between Park and Catawba streets the DEIS more than
doubles the actual volume observed The DEIS fanly consistently overestimates the existing
traffic volume along each of the free existing alternate routes in the pioject area For the 1485
outer loop that the Gaston East West Connector would feed into however the DEIS
significantly underestimates traffic volumes The Transportation Agency thus avoids addressing
the legitimate concern that traffic exiting the toll road will overwhelm the existing capacity on
the city s outer loop
1485 Segment
DEIS 2006
Actual Observed
Froin
To
Projection
Volume 20076
Discre an
Exit 4 (NC 160)
Exit 9 (US 29 74)
52 000
59 000
7 000
Such inaccurate traffic forecasts tlneaten to mislead the public regarding the traffic congestion
on these roadways and the viability of proposed solutions They also undermine confidence in
the NEPA proces Indeed the Transportation Agencies lax oversight of this existing
traffic data casts serious doubt upon the legitimacy of the long term piojections presented in the
DEIS If the Transportation Agencies cannot calibrate estimates of existing traffic volumes with
NCDOT s own observations it seems unlikely that they have itgorously assessed the baseline
assumptions that produce the grim 2030 traffic volume estimates presented in the DEIS Not
surp> tsingly these future estimates also appear to grossly inflate traffic volumes Foi example
between Exit 26 and Exit 27 (Sam Wilson Road) on 185 Table 1 2 of the DEIS pzedicts that
traffic volumes will increase over 40% of mole than 50 000 cars and trucks daily even though
the DEIS reports erroneously that that section of I 85 currently operates at the worst possible
'See NCDOT Ti affic Survey Group AADT Ti affic Volume Maps (2007 Spreadsheet) available at
http / /www ncdot orQ /doh/PRECONSTRUCT/tpb /ti affic survey/ For mteistate highways such as I 85 the Traffic
Survey Group collects volumes on an annual basis and 2007 volumes were included in the spreadsheet available on
the NCDOT NA ebsite It should be noted that in October of 2007 overall traffic volumes began to decrease in North
Carolina minormg a nationwide downward trend in driving Earhei in the year however traffic volumes in the
state i ose and so one would expect similar or even greatei discrepancies between the DEIS projections and
observed traffic volumes on I 85 for 2006 More iecently high gasoline pi ices and the economic slowdown have
contributed to further traffic volume decreases See Federal Highway Admmisti ation Traffic Volume Trends
available at http / /www fliwa dot gov /ohun/tvtw /tvtpage cfm
'See id
7

level of congestion Just as the DEIS overestimates the number of cars traveling on mayor
roadways in the project area today it underestimates the deterrence effect that congestion on
these roadways will have on ti avel demand in the future
C Suggested Statement of Pui pose and Need
The Transportation Agencies should issue a new DEIS that contains a clear and unbiased
statement of the purpose and need for this project in order to ensure consideration of a reasonable
range of alter natives and the eventual identification of the least damaging practicable alternative
The project purpose should be stated neutrally and without an artificial level of specificity such
as by defining `southern Gaston County as the land immediately adjacent to the proposed
conidoi for the Project In this situation with the proposed project having to comply with both
NEPA and Section 404 of the CWA it is even more important that the basic project purpose be
properly articulated so as not to artificially constrain the Corps from exercising independent
judgment in identifying the basic purpose of the project and using it as the touchstone for
evaluating the feasibility of the various potential alternatives
As discussed previously the Agencies have identified the need to improve mobility
within southern Gaston County and between southern Gaston County and western Mecklenbui g
County and the need to improve traffic flow on the sections of 185, US 29 74 and US 321 in
the Project Study Area [1 3] SELL suggests that a statement of the project s purpose focus on
the enhancement of mobility in a pioject area that includes the I 85 and US 29 74 corridors 1 e
southern Gaston County as defined by the Gaston County planners A further refined
statement of pioject purpose might be drafted as follows
To provide increased mobility to serve residents, businesses and tourists traveling in of
through southern Gaston County and western Mecklenburg County in a manner that
protects the environment provides economic opportunity and preserves the historic and
social setting of the affected region
Such a project purpose would not foreclose the consideration in the EIS and the 404/401
permitting process of other solutions foz addressing mobility in the area that do not involve the
construction of a toll highway In its current form the DEIS Purpose and Needs section
demonstrates that the North Carolina Turnpike Authority cannot reconcile its narrow mandate to
build specific toll road projects with federal law It also underscores North Carolinas need for
an objective transparent system to prioritize transportation spending based on performance
based crrteiia

IV ALTERNATIVES ANALYSIS
I The Proposed Alternatives
The DEIS Summary pursues only a cursory examination of all but one alternative
building a toll load in what might be coined southern southern Gaston County Piactical
alternatives to the Project— upgrading the existing road network installing HOV lanes on 185
expanding mass transit improving freight rail facilities or any combination of these measures —
are excluded because they would not fulfill the need for comiectivity within southern Gaston
County' and between southern Gaston County and western Mecklenburg County [2 6 2 7 2
8 2 9 2 10 2 16] All of the remaining' detailed study alternatives' ale slight route variations
for a new location toll road, and the bulk of the DEIS alternatives analysis compares the costs
and impacts associated with these various aligmnents of what is essentially a single alternative
2 Regulatory Framework
The consideration of alternatives is 'the heart of the environmental impact statement 40
C F R § 1502 14 A highway project DEIS should consider all possible alternatives to the
proposed freeway including changes in design changes in the route different systems of
transportation and even abandomnent of the project entirely Keith v Volpe 352 F Supp 1324
1336 (D Cal 1972) The central consideration is whether the functional alternative will actually
meet the project s goals thereby making it reasonable to consider Each alternative should be
presented as thoroughly as the one proposed by the agency each given the same weight so as to
allow a reasonable reviewer a fair opportunity to choose between the alternatives Rankin v
Coleman 394 F Supp 647, 659 (E D N C 1974) By dismissing functional alternatives without
thorough review the Gaston East West Connector DEIS falls far short of meeting this required
legal standard
3 Deficiencies in the Analysis of Alternatives Section
fn seveial critical ways the analysis of alternatives in the DEIS is deficient First the
alternatives analysis improperly narrows the range of alternatives to a new location highway
south of the US 29 74 corridor Second the alternatives analysis proceeds on the basis of almost
no objective quantifiable data failing to present even the results of existing studies of
transportation in the corridor Third the alternatives analysis mischaracterizes how a new
location toll road will impact traffic congestion along existing mayor roadways in the area
Fourth the alternatives analysis presents an incomplete picture of the costs associated with
various alternatives Fifth the alternatives analysis fails to adequately examine the impact of
tolling on minority and low income populations in the project area of to compare how
alternatives to the toll road would affect these residents
0

A Alternatives to Connecting the Area Adjacent to the Toll Road
Corridor
The DEIS does not analyze reasonable alternatives to the proposed action Rather it
summarily rejects them because they do not comply with the pioject ` purpose' of connecting
southern Gaston County ' howevei that geographic area is defined to Mecklenburg County
Designating HOV lanes on I 85 would not improve mobility access or connectivity
within southern Gaston County not between southern Gaston County and western �
Mecklenburg County [2 7]
Intersection and ramp improvements on I 85 US 29 74 and US 321 would not
noticeably improve mobility access, of connectivity within southern Gaston County nor
between southern Gaston County and western Mecklenburg County
Widening the mayor roadways in the area would not imps ove east west connectivity or
mobility within southern Gaston County or between southern Gaston County and western
Mecklenburg County [2 16]
As the DEIS explains ` [s]outh of US 29 74 there aie no continuous east west roadways in the
southern half of Gaston County [2 181 and apparently such a roadway is critical to the oft
cited connectivity needed in southern Gaston County Only the No Build or no action
alternative to the proposed toll road receives any detailed examination within the DEIS Almost
every other alternative is eliminated because it does not connect the ill defined area of
southern Gaston County The exception is the new location mass tiansit alternative which
would provide the needed connectivity but which is not financially feasible in part because it
would be ill suited to the dispersed low density land uses in southern Gaston County unlike a
toll road [2 10] In other words not enough people live in southern Gaston County to justify
transit but a $1 3 billion toll road would somehow be cost effective
The DEIS thus iejects all reasonable alteinatives to the pioposed toll ioad on the basis
that they do not connect the immediate area surrounding the proposed location of the toll load
even though relatively few people live there The bulk of the alternatives analysis conceins
where exactly in `southern Gaston County to put the toll road The DEIS must do more than
compare slightly varied routes of the same basic design concept
B No Objective Evaluation Based on Empirical Data
The DEIS does not support its recommended alternative with hard data comparing it to
any alternative Although the DEIS declines to mention it this lack of analytical rigor motivated
several of the resource agencies to abstain during the merges process 7 The Transportation
ZD
See e g Lettei from Heinz J Mueller EPA to Kristnla Solberg NCDOT ie Wi itten Brief to Mergei 01 Piocess
Review Board NCDOT Elevation Piocess for TIP Number U 3321 Gaston East West Corridor Study (Sept 27
10

1
Agencies have since persuaded EPA FW S and NCWRC to participate in the context of Turnpike
Environmental Agency Coordination (1EAQ meetings But the resource agencies objections to
the flimsy analysis in the DEIS remain as applicable as ever
For example in its 2004 notice of elevation EPA pointed out that NCDOT s
enviromnental analysis of the `Mass Transit Alternative was cursory not supported by
coordinated planning studies and not fully accurate 8 This does not appear to have changed
The DEIS concludes that neither expanded bus service nor rail service would attract enough
trips to noticeably reduce vehicle miles traveled and /or congested vehicle miles traveled in
Gaston County compared to the No Build Alternative nor would travel tines or distances
noticeably improve [2 9] But the Gastonia Rapid Transit Alternative s Study Corridor and
Modal Options suggests that transit could relieve congestion on I 85 and US 29 -74 if combined
with proper land use incentives According to the study 'timely action to encourage transit
oriented development along a selected alignment can serve to stimulate development and
redevelopment along desired lines as well as provide more ridership for the rapid transit service
thereby decreasing congestion in the corridor 9 The DEIS however provides no forecasts of
traffic volumes along 185 and other mayor roadways for the Mass Transit or ` Multimodal
alternatives
Similarly the DEIS includes a Multimodal Alternative that purports to analyze the
combined efficacy of mass transit and existing roadway improvements The DEIS explains that
such an alternative could be defined to include expanded bus or rail service that uses existing
roadways together with either TSM improvements or improvements to existing roadways But
without further defining or examining the ` Multimodal Alternative the DEIS concludes
These potential combinations of roadway and tiansrt improvements would not attiact
enough trips to noticeably reduce vehicle miles traveled and /or congested vehicle miles
traveled in Gaston County compared to the No Build Alternative not would they provide
a facility with an acceptable level of service because they would not attract enough trips
to change the poor levels of service projected to occur on I 85 and other area roadways
under the TSM Alternative or Improve Existing Roadways Alternatives Travel times
and distances also would not noticeably improve
As with the mass transit section the DEIS does not provide any further specification or
explanation as to how it arrives at this verdict And the DEIS does not even mention the
2004) ( EPA is convinced that a combination of potential improvements to the existing failing facilities (I 85 and
US 29/74) along with other possible system improvements is a feasible alternative worthy of further consideration
However NCDOT has not conducted even a cursory environmental analysis for the other No Build
Altei natives ) Letter from Heinz J Mueller EPA to Jen ifei Harris NCTA re Agency Scopmg Comments
Gaston East West Connector Toll Project From I 85 to Chailotte Outei Loop Gaston and Mecklenburg Counties
TIP Project Number U 3321 (March 1 2007)
s See id
9 PBS &J Gastonia Rapid Tiansit Alternatives Study Cori idoi and Modal Options (December 2005) at -) 11
(emphasis added)
11
I

possibility of freight rail capacity upgrades which could take truck traffic off of 185 and other
mayor arterials thereby reducing the state s highway maintenance and repair expenses reducing
congestion and making automobile travel on area roads safer and more enjoyable
In general the DEIS adopts a cut and paste approach to the alternatives analysis Its
discussions of the transportation'demand management or TDM alternative the
transportation supply management or TSM alternative the `Mass Transit Alternative and
the Multi Modal Alternative bear a disturbing similarity to a generic discussion of these same
alternatives for other North Carolina Turnpike Authority projects 10 These discussions follow
the same basic pattern of analysis With the exception of a new location metro line through
southein Gaston County which would not be financially feasible [2 8] the DEIS defines
project alteinatives as sets of insignificant half measures that will yield only minimal
benefits in the face of the overwhelming traffic volumes predicted to occur As discussed
pieviously in Section III the DEIS traffic volume estimates lack credibility and strain ciedulity
And in light of the Gastonia Rapid Transit Altei natives study the DEIS should explain how the
Transportation Agencies determined that the benefits of these alternatives alone or in
combination are minimal
C The Project's Impact on Congestion
According to the DEIS,11 one of the two purposes of this project is `to improve traffic
flow on the sections of I 85 US 29 74 and US 321 in the Ploject Study Area [1 31 According
to the DEIS "[ t]raffic operations would improve on I 85 and on segments of US 29 74 with the
New Location [toll road] Alternative compared to the No -Build Alternative since there
would be less traffic on 185 and US 29 74 (Appendix C Table C 2) [2 21 ] But Appendix C
shows that traffic would increase along much if not most of the length of I 85 US 29 74 and US
321 under the toll road alternative
Specifically Tables C 2 and C -3 show that the toll road would cause 2030 traffic
volumes to increase to the west of Cox Road along I -85 and to the west of South Main Street
along US 29 74 compared to the No Build Alternative To the east of these midpoints however
traffic volumes are projected to be lower under the toll road scenairo This creates the
impression that some drivers will use 185 and US 29 74 in the west of Gaston County and
switch to the toll road as they near Charlotte of the airport But traffic volumes along US 321
the main north south arterial in the project area are not projected to have a corresponding
10 See e g Monioe Connector /Bypass Dia$ Environmental Impact Statement available at www ncturnpike oig
Mid Currituck Bridge Alternatives Screening Report available at ww ncturnpike of a
11 As discussed sup a note 1 a Turnpike Authority representative appeals to have suggested that the project purpose
no longer includes alleviation of congestion on area roadways
12

increase 12 The DEIS never explains the curious commuting patterns and accompanying
development that Its traffic forecasts suggest
The DEIS asserts that the traffic models' demonsti ate a reduction in congested travel for
the toll road [2 21] by which it apparently means the number of miles driven in LOS F
conditions will be less than under the No Build scenario 13 But even under this narrow definition
of congestion relief conditions would be virtually the same under the No Build and toll road
scenarios —with the toll road reducing congested VMT by only around one half of one percent
On the other hand employing the I ransportation Agencies own "level of service descriptor
the toll road appeals to worsen congestion compared to the No Build scenario According to
Table C 2 only a single segment of 185 would experience a bettei level of service (LOS E
rather than LOS F) under the toll road scenario Even this one seivice improvement however
would result from added capacity on 185 to facilitate an intersection with the planned toll road
not from a change in traffic volumes, which would increase The remainder of 185 headed in to
Charlotte is projected to operate at LOS F whether the toll road is built of not
Along US 29 74 the toll road would unambiguously worsen the level of service Table
C 3 lists the projected levels of service along twenty three segments of US 29 74 At four of
these segments the level of service will be one to two grades lower under the New Location
Alternative Toll Scenario compared to the No Build Alternative For example US 29 74
from Thomas St to NC 279 would operate at LOS C under the No Build alternative and LOS D
under the toll road scenario Just east of Spariow Springs Road LOS D conditions would prevail
under the No Build alternative but this would slide to LOS F under the toll road scenario
Along the other nineteen segments of US 29 74 the level of seivice would be the same under the
No Build and toll road scenarios— mostly LOS F
The DEIS Appendix C does not present traffic data for US 321 It nonetheless concludes
that [1]evels of service along US 321 are similar for all evaluated alternatives [C 9] No data
supports this conclusion A one page handout that the Turnpike Authority distributed at public
meetings and posted on its websrte indicates that levels of seivice along the segment of US 321
between 185 and US 29 74 would worsen under the toll road scenario reaching capacity but
otherwise US 321 would remain under capacity regardless of whether the toll road is built
The DEIS traffic forecasts deserve little credence but even accepting then predictions
the Gaston East West Connector would at best have no positive impact on traffic congestion in
the area The DEIS traffic forecasts show that a new location alternative would worsen the level
of service at which much of 185 US 29 74 and US 321 opei ate in the pioject area The
12 This information is not included in the DEIS or Appendix C but rather a handout that the Turnpike Authority
distributed at public heaimgs and posted on its webs ite http / /www nctuinprke orQ /projects /g_aston /deis asp
" Neither the DEIS nor Appendix C define Congested VMT but a table in Appendix 8 of Gaston East West
Connector Ti affzc Forecasts for Toll Alter natives (Maiirn/Alexiou/Bry-on August 2008) refers to Congested VMT
and VHT (where Volume over Capacity > =1)
13

forecasts show that congested VMT would decline by less than one percent The DEIS cannot
claim on the basis of this data that the project would meet its identified need to improve traffic
flow on the sections of I 85, US 29 74 and US 321 in the Project Study Area [1 3] The
Transportation Agencies should acknowledge this in a revised DEIS that evaluates a reasonable
range of alternatives to address identified transportation needs
D A Complete Presentation of Costs
Just as the DEIS gives commuters and residents little insight into how much this project
will improve mobility compared to reasonable alternatives it gives taxpayer s only the dimmest
notion of how this project s cost compares to that of potential reasonable alternatives The DEIS
presents no cost information about upgrades to existing highway rail and transit facilities And
the DEIS mischaracterizes the revenue potential of tolling glossing over the substantial public
funding that the Project would require As a result the DEIS leaves the reader ill equipped to
judge whether the Gaston East West Connector is a sound investment of public funds of a
boondoggle
Even under the Tuinpike Authority s most optimistic forecast of toll revenues the Project
will require several hundred million dollars of public funding The DEIS should therefore
analyze potential alternatives with this magnitude as a reference point including those that carry
similar actual price tags
E Environmental Justice
Executive Ordei 12898 mandates' identifying and addressing as appropriate
disproportionately high and adverse human health or environmental effects on minority
populations and low income populations 14 Tolling will clearly have a disproportionate impact
on low- income residents in the project area and the DEIS should identify and address these
effects
Instead the DEIS reasons that these is ` no potential for disproportionately high and
adverse impact [3 25] on minority and low income communities because they will be able to
use I 85 US 29 74 and the other existing free alternative routes to the toll road The DEIS
discussion of Environmental Justice ultimates that the toll road will benefit even those who
cannot afford to travel on it because the DSAs would be diverting traffic from the existing
routes [3 26] The DEIS traffic forecasts however show that much of the existing roadways
would operate at LOS F with the toll load and that the toll load would actually increase traffic
volumes along much of I 85 and US 29 74
Similarly the DEIS claims that the project has no potential to negatively affect tiansit
service in the project area but this ignores the link between land use and transportation planning
14 Executive Oidei on Envuonmental Justice Exec Oider No 12898 59 Fed Reg 7629 (1994)
14

As the Gastonia Rapid Ti ansit Alternatives Study points out a successful transit piogiam hinges
on ` timely action to encourage transit oriented development along a selected alignment 15 The
Gaston East West Connector would encourage low density auto dependent development that
would undermine any concentration of development along a transit con idor to the north Asa
result the mobility of residents in the project area who lack access to a privately owned
automobile would decline as a result of this project being built
The DEIS leaves no doubt that the proposed action will not improve the mobility of some
residents in the project area Clearly there is a need to minimize the number of people for whom
this is true in order to realize the fullest overall improvement in mobility The DEIS recognizes
no such need however nor does it discuss any goals or measuies to address it A ievised DEIS
should address these issues in order to comply with Executive Order 12898 and NEPA
V AIR QUALITY EFFECTS
1 Criteria Pollutants
A Ozone
The Regulatory Framework
The Clean Air Act 42 U S C § 7401 et seq establishes an quality standards for
particular air pollutants called National Ambient All Quality Standards (NAAQS) If a region
fails to comply with these requirements the region is classified as non attaininent under the
Clean Air Act The Charlotte area including Gaston County has been designated as a
Moderate Non Attainment Area for ozone and it will likely soon bump up to a Serious
Non Attainment Area designation for failing to meet a2010 deadline to address its all pollution
problem The North Carolina Department of Air Quality ( NCDAQ ) estimates that ` on road
motor vehicle emissions account for about 55% of all ozone causing emissions in Mecklenburg
County
11 The DEIS Consideration of Ozone
The DEIS reports that EPA effectively disapproved the State Implementation Plan SIP'
submission for Charlotte causing NCDAQ to preemptively withdraw it The DEIS explains that
EPA s subsequent finding of failure to submit a SIP could result in highway sanctions if
NCDAQ does not submit an appropriate plan within 24 months although it adds that such
sanctions are unlikely as the State may simply bump up to serious nonattainment status
instead At no point does the DEIS address the cost or health implications of the serious
nonattainment designation Nor does the DEIS address how this project would affect the
regions efforts to meet the requirements that would be triggered by that designation The DEIS
15 PBS&J Gastonia Rapid Tiansit Altei natives Study Corridor and Modal Options (December 2005) at 5 11
15

treats the Chailotte area s smog as if it were completely divorced from mayor transportation
decisions such as the one that this DEIS purports to analyze
As the existing nonattairment designation suggests dangerous levels of ozone smog
already impact the health and well being of Chailotte area residents Public health experts have
estimated that air pollution in North Carolina kills 50 infants causes 1500 emergency room visits
foi childhood asthma, triggers 100 000 asthma attacks and iesults in 300 000 missed school days
each yeas The American Lung Association s 2009 State of the Air report ranks Charlotte as
the 81h most polluted city in the country, even worse than the year before Chailotte s smoggy air
seriously affects residents' quality of life and without a serious effort to address the sources of
the smog it will continue to do so Although EPA recently revised the ozone standard `
downward to 75 ppm members of the agency s scientific advisory committee unanimously
agree that the new primary ozone standard is not sufficiently protective of public health and
should be as low as 6 ppm Chailotte has yet to comply with the old standard of 84 ppm
While it is true that the Charlotte metro region may avoid federal highway sanctions it
will face significant additional compliance requirements as a serious nonattainment aiea16 that
17
will affect transportation planning Although the bump up from moderate to serious will
extend the attainment deadline to June 15 2012 it will also trigger additional mandatory control
measures It will require Charlotte to demonstrate a reduction in its baseline emissions by at
least 3 percent per year until the attainment date 18 It will require enhanced vehicle emissions
inspection programs and emissions offset requirements for new industry 19 And it will raise the
specter of an involuntary bump up to a severe nonattainment designation if air quality does not
improve fast enough in the region In addition to its further stigma a severe nonattainment
designation would require Charlotte area planners to adopt among other costly abatement
strategies specific enforceable transportation control strategies and transportation control
measures to offset any growth in emissions from growth in vehicle miles,traveled 20 In other
words strategies would have to be developed to compel residents in other parts of the region to
drive less to offset the increase in VMT generated by the Gaston East West Connector
The Charlotte area s smog problem is not going to go away anytime soon As the DEIS
An Quality Technical Memorandum acknowledges the 2007 eight hour ozone design values
measured in Mecklenburg County was 93 ppm the highest since the 2004 designation year
State authorities have yet to hatch a viable plan for bringing emissions into compliance with the
old standard by the 2010 deadline even without accounting for the Gaston East West
Connector The new more stringent standard will requne significant reductions in the emission
ZD
16 See e g 42 U S C § 7.)l 1 a(d) (compliance requirements foi serious nonattaimnent areas) compm e with 42
U S C §751 la(c) (compliance requirements foi moderate nonattainment aieas)
" See 42 U S C § 7511(b)(3)
18 See 42 U S C § 7511 a(c)(B) et seq
19 Id at § 7511a(c)(3) & (10)
zo Id
16

of ozone piecursois by 2016 Construction of a 22 mile twelve intersection 4 lane toll highway
from the urban fiinge through rural Gaston County would cause a significant increase in these
emissions The DEIS fads to even acknowledge this impact much less compare the benefit of
adopting an alternative that would help to solve the region s ozone problem rather than
exacerbate it
B Particulate Matter
The emission of fine particulate matter also known as PM2 5 is subject to a regulatory
regime similar to the one governing ozone Technically, the project area is in attainment for
PM2 5 but as the Air Quality Technical Memoiandum to the DEIS discloses In 2007 the
annual value foi the legion was 14 9 µg /m3 dust under the annual standard of 15 µg /m3 [at 14]
fhe DEIS fails to mention however that prior to the issuance of the DEIS the D C Circuit
remanded the PM2 5 standard to EPA agreeing with enviiomnental and othei public interest
gioups that the agency "failed adequately to explain why in view of the risks posed by short
term exposures and the evidence of morbidity resulting from long team exposuies its annual
standard is sufficient to protect the public health [with] an adequate margin of safety American
Faf m But eau v EPA, No 06 1410 (D C Cir February 24 2009) at 14
Based on the Obama administration s pledge to rely on sound science and public health
experts previous endorsements of a lower PM2 5 standard the Charlotte metro area appears
likely to slip into nonattainment This Project will make it more difficult for Charlotte to meet a
new mole stringent standaid The DEIS should detail the likely contribution of the PioJect
especially truck traffic to regional PM2 5 pollution based on transparent objectively verifiable
traffic forecasting It should also explain how designation of metro Charlotte as a nonattaiiunent
aiea for PM2 5 may affect the viability of the Gaston East West Connector and explore
alternatives that substantially decrease father than increase PM2 5 emissions in the region
2 Federal Aid Highway Act Section 109 Air Toxics
Section 109(h) of the Federal Aid Highway Act, 23 U S C § 101 et seq , requiies a three
step evaluation of air quality impacts and mitigation measures to ensuie that `final decisions on
the project are made in the best overall public interest 23 U S C § 109(h), 23 C F R
771 105(b) The first step is to determine the possible adveise economic social and
envnorumental effect ielating to any proposed project Id Second the costs of eliminating or
minimizing such adverse effects including air pollution must be determined Id Third the
project must be determined to be in the best overall public interest Id FHWA s implementing
regulations for this section require that any measuies necessary to mitigate these adverse effects
be incorporated into the project 23 C F R § 771 105(d)
The Clean Ali Act authorizes EPA to regulate emissions of toxic air pollutants- emitted by
motor vehicles that are associated with significant adverse health effects known as mobile
source air toxics (MS AT) 42 U S C § 7521 (1) Unlike carbon monoxide and ozone MSATs are
17

not regulated under the NAAQS progiam of the Clean Air Act as crrteiia pollutants MSATS are
nonetheless recognized to have adverse environmental and health effects so they must be
considered by the Agencies under Section 109(h) of the Fedeial Aid Highway Act In fact the
Section 109(h) analysis is expressly required by FHWA regulations as part of the NEPA
analysis 23 C F R § 771 101
The DEIS makes no mention of Section 109(h) or its implementing regulations Section
4 2 5 2 of the DEIS primarily disclaims responsibility foi analyzing MSATs explaining that
while much work has been done to assess the overall health risk of air toxics many questions
remain unanswered It goes on to mention that in any event USEPA has not established
regulatory concentration targets for MSATs Neither the brief treatment of all toxics within the
DEIS not the attached qualitative analysis of MSATs at Appendix H addresses mitigation
measures to seduce the emission of air pollutants contrary to the requirements of Section 109(h)
The Air Quality Technical Memorandum advances the dubious rationale that while it is
expected there would be slightly higher MSAT emissions in the immediate area of the project
relative to the No Build Alternative current tools and science are not adequate to quantify
them [at 26] or apparently to provide any information other than a hopeful assessment that
EPA s vehicle and fuel regulations coupled with fleet turnover will over time cause substantial
reductions in MSATs
This optimistic analysis fails to provide the basis for a meaningful assessment of this
project s environmental impacts as required by NEPA The DEIS should catalogue the schools
hospitals public parks and other locations in the pioject area where sensitive populations would
likely suffer exposure to MSAT generated by the toll road The DEIS should estimate the likely
emissions exposures at these locations using accepted testing methods relate these estimates to
the findings in contemporary peel reviewed health studies of MEAT exposures and discuss
specific mitigation measures that could safeguard the identified sensitive populations Finally
the DEIS should compare these costs with those associated with a plausible alternative that does
not involve a new location toll road such as upgrades to existing highway transit and freight
i ail facilities in the area
i
A Consideration of Non Prioi ity MSATs
The range of air pollutants considered by the DEIS is also inadequate Section 109
iequnes the consideration of possible adverse envnommental effects including air pollution
23 U S C § 109 This analysis requires the gathering and evaluation of evidence on potential
pollution hazards D C Fed n of Civic Ass ns v Volpe 459 F 2d 1231, 1242 (D C Cu 1971)
The DEIS s limited analysis of an pollutants only addresses the NAAQS citteria an pollutants
and those listed as priority' MSATs Section 109 of the Fedeial Aid Highway Act however
requires analysis of more than dust these pollutants
18

EPA s MSAT list includes 21 air pollutants from motor vehicles that aie known of
suspected to cause cancer or other serious health effects 66 F R 17230 (March 29 2001) The
qualitative analysis cited by the DEIS only examines a subset of this list the six MSATs
designated by EPA as priotrty MSATs (4 2 3 Exhibit 4 1) The remaining 15 MSATs aie
known to have adverse health effects and aie known to be emitted from mobile sources but are
not included in the DEIS s air pollution analysis Likewise EPA has promulgated a list of 33
Urban Hazardous Air Pollutants (Urban HAPs) which are judged to pose the greatest potential
threat to public health in the largest number of urban areas 64 F R 38706 38715 (July 19
1999) [M]obile sources are an important contributor to the urban air toxics problem Id A
number of the non priority MSATs are also included the Urban HAP list The inclusion of an
an pollutant on the MSAT list and /or the Urban HAP list creates a sti ong presumption that the
pollutant is known to have adverse health and environmental effects and therefore requires
consideration by the Agencies under Section 109(h)
Given the clear link between the MSATs in vehicle exhaust and health impacts the
question is not whether construction of the Gaston East -West Connector — including the massive
1 485 interchange that will encroach upon Berewick District Park —will have negative health
repercussions for those who live nearby The question is how accurately these health impacts
can be predicted The Agencies may not have a computer model specifically designed foi this
task and there may be limits on how accurately the health impacts in this area can be predicted
But the purpose of NEPA is to force Agencies to consider and disclose the seasonably
foreseeable consequences of then actions the DEIS focuses instead onjustifying its failure to
consider these consequences The Agencies must model the health impacts of the increased
MSAT exposure to the extent practicable as evidenced by theoretical approaches or research
methods generally accepted in the scientific community Failure to do so violates Section
109(h) of the Fedeial Aid Highway Act
VI GREENHOUSE GAS EMISSIONS
The DEIS traffic forecast predicts that construction of the Gaston East West Connector
will cause VMT in Gaston County to increase by around eleven percent compared to the No
Build Alternative Accepting this forecast the Gaston East West Connector would generate tens
of,thousands of tons of greenhouse gas (GHG) emissions each yeas The DEIS ignores these
emissions This failure to even acknowledge GHG emissions is at odds with current
environmental plamiing practices across the nation For a pioject of this scale the Agencies
must consider GHG emissions impacts and mitigation strategies Failure to address this
significant environmental impact is a violation of NEPA Especially for atoll road pioject that
relies on incieasing vehicle travel to generate sufficient revenue to finance the project it is
essential that issues related to GHG emissions be disclosed and evaluated
Efforts to seduce GHG emissions must involve transportation In its final report the
North Carolina Climate Action Plan Advisory Gioup estimates that the transportation sector,
19

accounts for 29% of the State s current GHG emissions The Group s report recommends that
the State work with its constituents to shift passenger tianspoitation mode choice to lower
emitting choices such as transit or rail instead of driving privately owned vehicles The report
also recommends that the State take steps to better integrate land use planning and transportation
and that it invest mole in transit
Construction of the Gaston East West Connectoi would undermine all of these
recommendations The Project threatens to explode the western footpiint of the Charlotte metro
area open up vast rural areas to sprawl development, cripple the development of transit in
Gaston and western Mecklenburg counties and gobble up public funding that might otherwise
finance alternative transportation improvements for decades to come `As the DEIS
acknowledges the Gaston East West Connector will induce millions of miles of additional
vehicle travel each year creating tens of thousands of tons of GHG pollutants Therefore the
Project rises above the significance threshold established under other existing regulatory
regimes And recent case law trends indicate that a 22 mile four lane new location toll way
should satisfy any threshold for significance in judicial review under NEPA See e g Laidlaw
Energy v Town of Ellicottville Case No 1659 CA 08 01183 (N Y App Ct Feb 6 2009)
(upholding decision to deny a land use approval under the State Environmental Quality Review
Act due to concern over carbon emissions and findings that a proposed biomass cogeneration
facility would cause `serious increases in harmful emissions that would result in an
unacceptable adverse impact ) Coalition for Environmental Integrity in Yucca Valley v Wal-
Mart Case No CIVBS 810232 (Cal Sup Ct May 14 2009) (holding that state environmental
planning documents for Wal Mart supercenter had to consider the entire GHG emission output
of the Project )
1 Federal Climate ChanjZe Regulation
The link between emissions of greenhouse gases (GHGs) and climate change is no longer
subject to scientific dispute When GHGs are released into the atmosphere they act like the
ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat On
April 17 2009 EPA issued its anticipated finding that [r]n both magnitude and probability,
climate change is an enormous problem The greenhouse gases that are responsible for it
endanger public health and welfare within the meaning of the Clean Air Act 74 F R 18886
18904 The finding makes clear that motor vehicles are a mayor source of four of these
greenhouse gases—carbon dioxide methane nitrous oxide and hydrofluorocarbons and that
motor vehicles contribute to this air pollution Id at 18888
EPA issued its finding in response to the United States Supreme Court s decision in
Massachusetts v Environmental Protection Agency 127 S Ct 1438 (2007) which
acknowledged the connection between carbon dioxide emissions and global warming The
legislative branch of the federal government has also recognized the threat of global climate
change and President Obama has endorsed the America Clean Energy and Security Act of 2009
20

passed by the United States House of Representatives (H R 2454) on June 26 2009 which
would create new iestiietions under the CAA on GHG emissions In its current foim this regime
would aim to reduce GHG emissions 17% below 2005 levels by 2020 and reduce them 83% by
20502 1 The regime would work in part by requiring utilities and other mayor sources of
greenhouse gases to buy a permit for their emissions EPA estimates that in 2005 dollars these
allowances will cost $13 in 2015 and increase to $26 or $27 by 2030 22 Utilities and other
sources could offset some of this cost by working to reduce GHG emissions in other sectors
including transportation
The further development of climate change regulation will likely have direct effects on
transportation in an effort to achieve nationwide benchmarks One approach would be to tax
gasoline or tax drivers on the basis of vehicle miles traveled Whatever the mechanism such
iegulation would render carbon intensive modes of transportation such as freeways mole costly
foi users Because transportation accounts for approximately one third of GHG emissions and is
the fastest growing source sector it can be reasonably anticipated that any future federal
regulatory scheme will include a component that encourages less pei capita motor vehicle travel
This would affect the toll revenue of the planned Gaston East West Connector and possibly
undermine the Project s viability entirely Yet the DEIS neglects to even mention these very
relevant issues
2 State Environmental Planning Regulations
The Agencies need not invent a procedure from whole cloth fot measuring GHG
emissions and identifying mitigation strategies in the DEIS Across the country, many state and
local governments have established policies to consider GHG emissions in the environmental
planning process And the Agencies can rely on directives and guidance documents fiom these
jurisdictions to satisfy their obligation under NEPA to consider all significant envnonmental
impacts that arise from the Project
Some states have formalized requirements to quantify GHG emissions and consider
mitigation strategies In Massachusetts projects subject to the state environmental policy act
(MEPA) 23 that involve significant GHG emissions must identify and quantify those emissions
and also ` consider a project alternative in the [EIS] that mcorpoiates measures to avoid
minimize or mitigate such emissions 24 Similarly since 2003, the New Yolk State Department
of Transportation (NYDOT) has been requning analysis of GHG emissions for mayor projects
and the New York Department of Environmental Conservation has issued a Guide foi
21 See John Broder House Passes Bill to Address Threat of Climate Change N Y Tunes (June 26 2009)
27 See Executive Summary of H R 2454 as filed with Rules Coirunittee available at
http//enelgycommeicehousegov /Press 111/20090623/hr2454 iulessummalypdf
21 See Mass Gen Laws ch 30 §§61-62H
24 See Massachusetts Office of Energy and Environmental Affan s MEPA Greenhouse Gas Emissions Policy
and Protocol (Oct 19 2007)
21

Assessing Energy Use and Greenhouse Gas Emissions in Enviionrnental Impact Statements
specifically targeted towards projects that generate millions of vehicle miles traveled 2'
In other states consideration of GHG emissions has followed a more informal path In
California the state attoiney general has directed local governments to consider GHG impacts on
transportation and land use piojects in order to comply with that state s environmental policy act
(CEQA) leading private professionals to promulgate an informal handbook on alternative
approaches to analyzing [GHG] emissions and global climate change in CEQA documents 26 In
Washington the executive of King County which encompasses Seattle has adopted a
comprehensive older requiring that adverse climate impacts be described for all piojects that
must complete State Environmental Protection Act documents when the county is the lead of is
permitting a project in uimncorporated King County 27
These regulatory regimes derive their authority from various sources which are often
particular to the state or region where they apply They demonstrate however that an
established methodology for analyzing GHG emissions can be applied to evaluate the impacts of
large scale, GHG intensive projects such as the Gaston East West Connectoi
3 NEPA Requirements to Consider GIG Emissions
Recent federal case law makes cleat that simply ignoring the significant GHG emissions
of this project violates NEPA Several federal courts have held that GHG emissions must be
analyzed under NEPA in various situations relating to transportation as well as mayor
infiastiucture projects See Border Power Plant Working Group v Depai tinent ofEneigy 260 F
Supp 2d 997 (S D Cal 2003) (electric transmission lies) Mid States Coalition for Progi ess v
Surface Transportation Board 345 F 3d 520 (8th Crr 2003) (coal supply rail lines) Center for
Biological Divei sity v National Highway Traffic Safety Adininisti ation 538 F 3d 1172 (9"' Crr
2008) (promulgation of motor vehicle fuel efficiency standards) The Ninth Circuit s decision in
Centei for Biological Diver sity bears particular significance for the DEIS and its neglect of
climate change impacts as it relates to GHG emissions from motor vehicles
Like this Project the fuel efficiency standards at issue in Centei for Biological Diversity
would have produced significant GHG emissions impact by indirect means through the actions
of individual drivers The Transportation and Safety Board argued that Congress rather than the
agency had the duty,to address climate change and that it had no obligation to assess the
cumulative impact of its rule on climate change Id at 1217 FHWA had relied on a similar
logic in past cases arguing that it was not useful to consider greenhouse gas emissions as part
25 N Y Dept of Environmental Conservation Guide for Assessing Energy Use and Gieenhouse Gas
Emissions in Envnomnental Impact Statements (Sept 9 2008) available at
http / /www nyupstateplannm org /GHG EISGuide08 pdf see also Michael B Genard Climate Change and the
Environmental Impact Review Pi ocess Natuf al Resow ces & Envu onment Vol 22 3 (Winter 2008)
26 Gerrard ,sups a at 22
27 http Hwww kin gcounty gov/ transportation/ kcdot /KeyInitnatives /CIimateChange aspx
22

of the project level planning and development piocess since there aie no national regulatory
thresholds for greenhouse gas emissions or concentrations that have been established th ough
law of regulation Audubon Soc y v USDOT 524 F Supp 2d 642 709 (D Md 2007) But the
court rejected that logic holding that [t]he impact of greenhouse gas emissions on climate
change is precisely the kind of cumulative impacts analysis that NEPA iequues agencies to
conduct Id at 1217
Fhe Centel f07 Biological Divei sity decision heavily cites the U S Supreme Court s
Massachusetts decision That case makes clear that the global nature of the climate change
problem does not abrogate the Agencies duty to consider the GHG emissions caused by
construction of the Project As the U S Supreme Court reasoned
Agencies like legislatures, do not generally resolve massive problems in one fell
regulatory swoop They instead whittle away at them over time refining their preferred
approach as circumstances change and as they develop a more nuanced under standing of
how best to proceed Massachusetts 127 S Ct 1457 (2007)
The argument that a small incremental step because it is incremental can never be attacked in a
federal judicial forum is simply incorrect Id GHG emissions from the Project may contribute
only a small fraction of global emissions of this pollutant but that does not allow the Agencies to
ignore the issue GHG emissions do not need to be linked with a specific global warming
outcome for the issue to require consideration under NEPA NEPA requires consideration of
environmental effects when their nature is reasonably foreseeable but their extent is not
Midstates Coalition for Progress v Surface D ansportation Boas d 345 F 3d 520 549 (8th Crr
2003) CEQ regulations provide specific procedures for the Agencies to follow when assessing
unknown or uncertain impacts 40 C F R § 1502 22 And the Agencies may rely on the myriad
resources detailed above for addressing the specific issue of GHG emissions
4 Consideration of GHG Emissions in the DEIS
The DEIS does not consider, or even mention, GHG emissions At a minimum, the
Agencies must model the GHG emissions of a reasonable range of project alternatives and
consider whether they could accomplish the purpose and goals of the Project while limiting the
GHG emissions The Agencies must also detail available mitigation measures for limiting the
GHG emissions that will result from this Project and estimate the potential cost of offsetting the
Project s GHG emissions impact for example based on projected pei nut pi ices per ton of
carbon dioxide under a future cap and trade regime Finally the DEIS must detail how
iegulatzon of GHG emissions may affect travel demand and by extension toll revenues and how
this night affect the project's viability The wholesale failure to consider GHG emissions from
the Project is unreasonable arbitrary and capricious The Agencies should reissue a DEIS that
evaluates the full range of GHG issues related to this Project
23

VII WETLANDS AND WATER QUALITY
1 Regulatory Background
The Clean Watei Act (CWA) prohibits the discharge of any pollutant by any person into
waters of the United States unless such discharge is made in compliance with various CWA
sections including the § 404 permit provisions 33 U S C §§ 1251 et seq Discharges will not
be permitted under §404 if there is a practicable alternative to the proposed discharge that would �
have less adverse impact on the aquatic ecosystem See CWA § 404(b)(1) 40 C F R § 30 10(a)
An alternative is practicable if it is available and capable of being done after taking into
account cost existing technology and logistics in light of overall project purposes 40 C F R §
23010(a)(2) The § 404(b)(1) alternatives analysis overlaps significantly with NEPA
alternatives analysis Under the 404(b)(1) guidelines it will be presumed that there are
practicable alternatives to discharge activity that occurs in but is not dependent upon wetlands or
waters of the US 40 C F R § 230 10(a)(3) see also Buttrey v United States 690 F 2d 1170
1180 (5th Cir 1982)
Pursuant to § 401 of the Clean Water Act 33 U S C § 1341 the state of North Carolina
must certify that any discharge from the Project complies with the relevant provisions of the
Clean Water Act The North Carolina Division of Water Quality (DWQ) has explained that
certification is predicated on a determination that a project does not result in cumulative
impacts based upon pastor reasonably anticipated future impacts that cause or will cause a
violation of downstream water quality standards 28 For projects such as loads on new
location DWQ requires a' quantitative (r e detailed) analysis of water quality impacts 29
According to DWQ policy impaired waters listed pursuant to CWA Section 303(d) warrant
special attention with respect to cumulative impact analysis since existing regulatory programs
often have not adequately addressed pollution sources for these waters 30 DWQ therefore
advises that a detailed quantitative analysis should be conducted by DOT to determine 1) if
cumulative impacts are likely and 2) what non point source control measures will be needed
and how they are to be implemented 31 DWQ goes on to explain that this analysis will often
require watershed level modeling using export coefficients estimated levels of treatment for
BMP s and comparison to numerical water quality standards or numeric water quality goals 32
28 NCDWQ CumulatiNe Impact Policy for the 401 and Isolated Wetland Perinittmg Programs (April 10 2004)
available at http / /h2o eni state nc ushlcwetlands /documents /6 6FinalVei sronofCumulativelmpact pd f (citing 15A
NCAC 2H 0506 and 15A NCAC 2H 13 00)
91d at 2
01d at 3
31 Id
32 Id
M

2 The DEIS' Consideration of Water Quah Impacts
The DEIS fails to adequately analyze water quality impacts from the proposed pioject
The DEIS points out that a Di aft 2008 303(d) list includes a growing number of water bodies in
the Project Study Area including Abernethy Creek Crowders Creek McGill Branch Catawba
Creek and the South Fork Catawba River The DEIS explains that these water bodies have
impaired use for aquatic life and that urban storm water runoff is most likely to blame for the
impairment [6 6]33 But the DEIS gives little indication of how the Garden Parkway —which
would open up some of the least urbanized areas of the Catawba watershed to spiawlmg
development with a greatly increased amount of impervious surfaces —would not significantly
magnify these impacts
The DEIS tluows out a laundry list of potential impacts to water quality that could occur
under any of the DSAs [6 9] Yet the DEIS falls to provide any detailed or quantitative
analysis of how these impacts might be avoided or how they will affect the attainment of water
quality standards It offers only the vague assurance that impacts from erosion and
sedimentation will be minimized by implementing control measures in accordance with
NCDENR and NCDOT guidance and that an erosion and sedimentation plan will be
developed for the Preferred Alternative in accordance with the Erosion and Sediment Control
Planning and Design ( NCDENR Division of Land Resources June 2006) and Best Management
Practices for the Protection of Surface Waters ( NCDOT March 1997) [6 10]
The DEIS consideration of cumulative effects to water quality is even less informative It
concedes that water resources having the potential to be cumulatively affected by non point
source pollution include the Catawba River South Fork Catawba River Abernethy Creek
Catawba Creek Crowders Creek and Blackwood Creek [7 17] The DEIS does not describe
though what non point source control measures will be needed and how they are to be
implemented, as required by DWQ policy 34 It does not detail the nature of the discharge
including cumulative impacts to isolated and non isolated wetlands as directed by the North
Caiolrna administrative code 15A NCAC 02H 1302 Instead the DEIS simply states that
these effects — whatever they may be — can be minimized through implementation of local
stormwater ordinances and Best Management Practices (BMP)
The DEIS s treatment of the Project s likely water quality impacts creates the impression
that they can be easily mitigated The Transportation Agencies actual analysis of these impacts
however tells a different story
33 Crowders Creek was listed in 2006 as unpaired by excessive fecal colifonn as well although the DEIS does not
mention this See http / /h2o ern state nc us /tmdl /documents /303d Repot t pd f The Division of Water Quality has
removed the di aft 2008 303(d) list and associated mfoimation from the DWQ website until EPA gives final
approval
34 See Supi a Note 28
25

Anticipated growth associated with the construction of the Gaston East West
Connector is expected to increase the amount of impervious surfaces within the ICE
Study Area Watei quality of the Catawba River is likely to be affected cumulatively as
development reveals a pattern of mci eased impervious surfaces through the construction
of buildings packing areas and roadways The volumes of non point source pollution
expected from the anticipated increase in impervious surfaces can be quantitatively
analyzed to determine the significance of this effect A quantitative analysis is outside
the scope of the current study yet the effect of mcieased impervious surfaces is believed
to be substantial based solely on the amount of land having the potential to be developed
as identified in this report 35
In other words the Project s impact on water quality is substantial and it can be quantitatively
analyzed but the DEIS inexplicably omits any such analysis
Failure to examine water quality impacts from all reasonable alternatives is a derogation
of the Agencies duties under NEPA and by extension under §§ 404 and 401 of the CWA
NEPA i equires that the Agencies `[d]evote substantial treatment to each alternative considered
in detail including the proposed action so that reviewers may evaluate then comparative
merits 40 C F R § 1502 14(b) Me superficial disclosure of ploject impacts in the DEIS falls
far short of this standard The DEIS focuses on relatively inconsequential differences between
the myriad detailed study alternatives —route variations of an otherwise identical toll road
alternative — instead of meaningfully informing the public about the Project s impacts on the
area s water resources not to mention the resulting burden of waste water treatment land use
and other regulations that would be needed to offset those impacts
3 The DEIS' Consideration of Wetlands Impacts
The DEIS explains that despite efforts to avoid and minimize wetlands impacts 36
stream impacts will be greater than USACB and NCDWQ iegulatoiy thresholds and will
require compensatory mitigation' [6 30] The DEIS however, gives no indication of where this
compensatory mitigation will take place Even a "conceptual mitigation plan remains among
the Pcoject s several unresolved issues and areas of controversy [S 16] The DEIS suggests
that the specifics of any mitigation plan lie with the Army Corps of Engineers and NCDWQ but
federal regulations make clear that permit applicants are responsible for proposing an
appropriate compensatory mitigation option to offset unavoidable impacts 33 CFR 332 3(a)
35 EarthTech Inc Natui al ResoU7 ces T echnical Report for the Gaston East West Connector (February 2008) at 132
(emphasis added)
36 The Transportation Agencies apparently declined to adjust the total number of intersections to avoid and minimize
water quality impacts as the recommended alternative would pack in mole than one ever) two miles for a total of
twelve along 21 9 mile length of the toll road
26

0
The Catawba watershed is a difficult one in which to find suitable mitigation sites 37 and
accoiding to the Tiansportation Agencies own analysis the Project will have substantial impacts
on water quality in the area The DEIS should describe the appropriate compensatory mitigation
measuies that would qualify the Project for state and federal permits Due to the inuriense scale
of this project— including impacts to 48 995 linear feet of streams, over nine miles —an
appropriate mitigation plan would need to be substantial as rt ` must be commensurate with the
amount and type of impact that is associated with the permitted use 33 CFR 332 3(a)(1)
Moreover mitigation should be located within the same watershed as the impact site and
should be located where it is most likely to successfully replace lost functions and services
taking into account such watershed scale features as aquatic habitat diversity habitat
connectivity relationships to hydrologic sources (including the availability of water rights)
trends in land use ecological benefits and compatibility with adjacent land uses Id at
332 3(b)(1)
The DEIS fails to acknowledge any lost functions or features of the Catawba watershed
that would be degraded by The Project much less identify the specific mitigation measures that
could replace them The brief "Mitigation of Impacts section in the DEIS reproduces a random
list of examples of Best Management Practices for erosion and sedimentation control [6 10]
Federal courts have held that the mere listing of mitigation measures and processes without
any analysis cannot support a cumulative impacts determination' under NEPA Ohio Valley
Envtl Coalition v Hurst 604 F Supp 2d 860 887 (S D W Va 2009) citing Nat'l Parks &
Conservation Assn v Babbitt 241 F 3d 722 734 (9th Cir 2001) The hodgepodge of mitigation
examples offered by the DEIS cannot support such a determination either
X CONCLUSION
We urge the Transportation Agencies to revise their analysis of alternatives and impacts
according to the recommendations set forth herein and to issue a revised Draft Envrronrriental
Impact Statement for public review and comment
i
J
37 See e g Progi am Assessment and Consistency Group (PACG) Memoi andum re Expanded service area for
mitigating impacts within the Lowei Catawba Rivei Basin Oct 8 2008 (recognizing that secui ing suitable
mitigation in the Catawba 0.) sub basin continues to be pioblematic )
27