Intercounty Connector foes file intent to sue

Groups want more air quality studies, say road violates Clean Air Act

Wednesday, Nov. 8, 2006

Two national organizations plan to sue to block construction of the Intercounty Connector, saying the highway would violate the federal Clean Air Act by adding to the region’s air pollution.

Environmental Defense and the Sierra Club filed a ‘‘notice of intent” to sue the federal government and the regional Transportation Planning Board, saying that their approval of the $2.4 billion, 18-mile road linking Montgomery and Prince George’s counties violated air quality standards.

‘‘At its core, we believe the work the Federal Highway Administration has done, their analysis, doesn’t show this highway can be built and not make air quality worse,” said Hope M. Babcock, director of the Institute for Public Representation at the Georgetown University Law Center, which is representing the groups.

‘‘This is really about protecting public health,” said Michael A. Replogle, transportation director for Environmental Defense.

Transportation Secretary Robert L. Flanagan said the state had legal advisers monitor the project every step of the way to make sure it met legal requirements. ‘‘The project meets all federal regulations under the Clean Air Act,” he said Thursday.

‘‘What we’ll expect to see is a lawsuit where they throw in everything but the kitchen sink,” Flanagan said. ‘‘We are confident we will prevail and a judge will appreciate all the excellent work that has been done under all federal and state statutes.”

The case would provide the first legal test of new federal regulations on a particular type of pollutant particles. The Clean Air Act says that federal agencies cannot approve any projects that would add those fine particles to the air in regions where they already exceed federal standards.

Environmental Defense and the Sierra Club have a lawsuit pending that challenges those regulations, which require analysis of air quality, as was done for the ICC, but do not require analysis of how much pollution a project would add.

Pollution from the road ‘‘threatens kids, threatens nursing home residents who are living near that right of way,” Replogle said. ‘‘There are sensitive facilities and the state hasn’t considered those areas.”

The ICC is the first highway to be studied under the new regulations, Flanagan said. ‘‘The [Environmental Protection Agency] has distributed our study as a model for how it should be down,” he said.

Environmental Defense would like to see air quality monitors placed near Interstates 95, 270 and the Capital Beltway and a study of likely levels of pollution in areas near the ICC route.

The limited-access toll road will provide an east-west link between Montgomery County’s Interstate 270 corridor at I-370 in Gaithersburg and U.S. Route 1 and I-95 in Laurel. Portions of the highway are expected to be completed in 2010 and 2011.

Gov. Robert L. Ehrlich Jr. (R) held a groundbreaking ceremony for the first phase of the project on Oct. 17.

‘‘This road is badly needed for county mobility,” said Montgomery County Councilwoman Nancy M. Floreen (D-At large) of Garrett Park, who ran four years ago on a slate that promised to approve the ICC. ‘‘To file [the notice] around Election Day, I think they’re trying to make a political statement.”

Opponents of the road said the timing of the filing was intended to meet a legal requirement. Anyone suing a federal agency under the Clean Air Act must give 60 days notice.

‘‘This is a last-chance notice to the federal and state authorities that they have one last chance in this 60-day period to take a hard look at the issues we’ve raised,” Replogle said.