Aubrey Layne
by James A. Bacon
Transportation Secretary Aubrey Layne said today he suspended work on the U.S. 460 Connector project because he didn’t want to run the risk of paying the contractor millions of dollars for work on a project that might be radically revised. The state of Virginia has spent $300 million already on the proposed 55-mile interstate-grade highway with no guarantees that it can obtain the necessary environmental permits to push the $1.4 billion project forward — or get its money back if the permits don’t come through.
“There’s no point in spending money on a road we don’t know will get built,” he said at the monthly Commonwealth Transportation Board (CTB) meeting. “There will be five alternatives looked at, including a no-build option.”
As a member of the CTB before he joined the McAuliffe administration as transportation chief, Layne had been one of the project’s most vocal backers. He reiterated his support today. “I still believe in the purpose and need – increased mobility in the corridor, support of the port, hurricane evacuation,” he said.
But Layne suspended work on the mega-project late last week, citing concerns that the U.S. Army Corps of Engineers might not give its approval. The Corps had expressed concerns from the very beginning about the impact of the proposed alignment on wetlands, he said. Early on, the best guess was that 200 acres of wetlands might be disrupted. But soil borings showed that nearly the entire route transversed wetlands. “It was discovered that it could be 480 acres,” he said.
When Layne took over as transportation secretary, he explained, he adopted a different perspective from his previous role as CTB member, advocate and chairman of the 460 Funding Corporation, the entity created to float toll-backed bonds to help pay for the project. As chairman of the funding corporation, he had a fiduciary responsibility to look out for the interests of the bond holders. As transportation secretary, he has a responsibility to look out for the interests of citizens and taxpayers.
To date the state has spent roughly $300 million on the project. VDOT accounts for roughly $60 million in project management costs. The contractor, US 460 Mobility, has spent about $100 million on environmental work, and the state has paid it roughly $140 million for “mobilization,” preparing for construction by setting up an office and hiring crews. He doesn’t have any more environmental work for the contractor, and he doesn’t want to continue paying millions of dollars for months on end when there is no certainty that the proposed route will win regulatory approval.
Problems with P3s. CTB members were generally supportive yesterday of Layne’s decision. Earlier this week, however, former Transportation Secretary Sean Connaughton was quoted in the Washington Post as saying, “Preliminary studies show around 400 acres impacted over a 55-mile corridor, which is fairly small given the size and scope of the project. The current Administration needs to complete the supplemental study, design a wetlands mitigation and avoidance strategy, get the Army Corps permit, and build the road. It’s that simple.” He also said there was “no problem with the structure of the contract” with US 460 Mobility.
In a lengthy explanation of the background to the deal, Layne offered a different spin. “From my viewpoint, it was people in their particular positions making the best decisions they had with the data they had,” he said. However, he alluded to the inherent tension between confidentiality and openness in the Public Private Partnership (P3) process.
The process was open in the early stage when an advisory group studied broad approaches to the 460 corridor. Based on that group’s recommendations, three different consortia submitted their proposals on how to finance and build the highway. In the end, the McDonnell administration decided they were all too expensive and took over ownership of the proposed highway, enlisting US 460 Mobility only to design and build the project. Those negotiations occurred totally in secret, as allowed by the P3 law. The McDonnell administration was not required to obtain CTB approval to sign the contract (although the CTB did have to allocate money for the project), and VDOT gave the CTB what Layne characterized as a “high-level briefing.” “The CTB,” he added, “was not privy to the terms of the contract.”
W. Sheppard Miller III expressed frustration with the process that he did not voice publicly at the time: “I have been very uncomfortable on a couple of projects we had. I didn’t have the data I needed to make a decision. At the same time, I was asked to vote. Don’t ask me to do something without giving me the information I needed. I voted like everyone else. I didn’t like it. I was very uncomfortable at the time. I don’t want to be in that position again.”
Is the money gone for good? CTB members also were concerned what financial exposure the state might have after suspending work on the project. The state financed some of its expenditures by issuing $90 million in toll-backed bonds so far. But delays in the building the toll road means there will be delays on collecting toll revenue to pay interest and principle on the bonds. Would the funding corporation be able to meet its obligations?
John W. Lawson, VDOT’s chief financial officer, said that the bond deal was structured to give the Commonwealth a $9 million “ramp up reserve fund.” Also, he said, the Virginia Transportation Infrastructure Bank has extended an $80 million line of credit. “There are substantial resources in place to support the debt service.”
It is unclear whether the state can claw back some of the money it paid US 460 Mobility. Layne said it might be possible to negotiate something with the contractor, although there are no guarantees the state could recoup its money because the contractor “was acting in good faith that the project would proceed.” At the same time, the state has to weigh the possibility of damages to the contractor from suspending the work.
“Should we have had a better assessment of risk when the contract was signed?” he asked rhetorically in speaking to Bacon’s Rebellion. “That’s subject to debate.”
