5 CCR 1001-12
DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT Air Quality Control Commission REGULATION No. 10 CRITERIA FOR ANALYSIS OF CONFORMITY 5 CCR 1001-12 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] Part A Determining Conformity of General Federal Actions to State or Federal Implementation Plans I. Incorporation of the Federal Rule The provisions of 40-15-12 Title 40, Part 51, Subpart W, and Title 40, Section 6.303, of the Code of Federal Regulations, (July 1,1994), promulgated by the US Environmental Protection Agency (EPA) are hereby incorporated by reference by the Air Quality Control Commission and made part of the Colorado Air Quality Control Commission Regulations.
Materials incorporated by reference are those in existence as of the dates indicated and do not include later amendments. The material incorporated by reference is available for public inspection during regular business hours at the Office of the Commission, located at 4300 Cherry Creek Drive, S., Denver, CO 80222-1530, or may be examined at any state publications depository library. Parties wishing to inspect these materials could contact the Technical Secretary of the Commission, located at the Office of the Commission.
II. Statement of Basis, Specific Statutory Authority and Purpose II.A. October 17,1996, Part A, General Conformity Background This statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Administrative Procedures Act, C.R.S. 1973, Section 24-4-103(4) for adopted or modified regulation.
Basis The EPA has promulgated rules to ensure that Federal actions conform to the appropriate State Implementation Plan (SIP). Conformity to a SIP is defined in the Clean Air Act as meaning conformity to a SIP's purpose of eliminating or reducing the severity and number of violations of the National Ambient Air Quality Standards (NAAQS) and achieving expeditious attainment of such standards. The Federal agency responsible for the action is required to determine if its actions conform to the applicable SIP. Colorado is required, through federal rule, to submit to EPA revisions to the SIP establishing conformity criteria and procedures consistent with federal rule.
Statutory Authority The general authority for this regulation is contained in the Colorado Air Pollution Prevention and Control Act, Section 25-7-105(1)(a), which requires the Commission to promulgate a state implementation plan which will assure attainment and maintenance of the NAAQS. This regulation incorporates the federal requirements, and does not go further than the requirements.
Purpose The purpose of the rule is to implement Section 176(c) of the Clean Air Act, which requires that all federal actions conform to an applicable implementation plan developed pursuant to Section 110 and Part D of the Act. The Commission is incorporating the EPA rule by reference in order to comply with the federal requirements. Part B Conformity to State Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U. S. C. or the Federal Transit Act I. Purpose, applicability and incorporation of material by reference I.A. The purpose of this Part B of Regulation No. 10 is to implement a State Implementation Plan (SIP) governing transportation conformity determinations and to establish an interagency consultation procedure, as required by 40 CFR 51.390, as published at 62 Fed. Reg. 158 (August 15, 1997).
I.B. This rule shall have the same applicability as 40 CFR, Part 93, as published at 62 Fed. Reg. 158 (August 15, 1997). In general, such federal requirements apply to transportation projects, transportation improvement programs, regional transportation plans, and State Implementation Plans.
I.C. The Colorado Air Quality Control Commission hereby adopts and incorporates by reference the provisions of 40 CFR, Part 93, as published at 62 Fed. Reg. 158 (August 15,1997). Materials incorporated by reference are those in existence as of the date of this regulation and do not include later amendments. The material incorporated by reference is available for public inspection during regular business hours at the Office of the Commission, located at 4300 Cherry Creek Drive South, Denver, Colorado 80222, or may be examined at any state publications depository library. Parties wishing to inspect these materials should contact the Technical Secretary of the Commission, located at the Office of the Commission.
II. Requirement to comply with the Federal rule Any person making a transportation conformity determination or adopting or approving a regionally significant project shall comply with the provisions of part 40 CFR, part 93, subpart A, which rules are incorporated into 101(c) of this regulation by reference, except as follows: II.A: The interagency consultation procedures established in § IV shall apply in lieu of the consultation procedures established in 40 CFR 93.105 (a) through (c). Any reference to 40 CFR 93.105, to subsections (a) through (c) of 40 CFR 93.105, in the incorporated federal rules shall be construed to mean § IV of this Regulation No. 10. In particular:. II.A.1. Any reference to 40 CFR 93.105(c)(1)(i) in the incorporated federal rules shall be construed to mean §IV.C.1a. for requirements related to regional emissions analyses, and to § IV.C.3. for requirements related to hot-spot analyses; II.A.2. Any reference to 40 CFR 93.105(c)(1)(iii) in the incorporated federal rules shall be construed to mean §IV.C.1.c.; and II.A.3. Any reference to 40 CFR 93.105(c)(1)(vi) in the incorporated federal rules shall be construed to mean §IV.C.1.e.
II.B. 40 CFR 93.102(d) shall not apply.
III. Definitions Adopt or approve a regionally significant highway or transit project. For purposes of 40 CFR 93.121, the adoption or approval of a regionally significant project is never later than the execution of a contract for site preparation, or final action by an elected or appointed commission or administrator directing lower- level personnel to proceed.
CDOT means the Colorado Department of Transportation.
Commission means the air quality control commission as defined in § 25-7-103(7) C.R.S. Division means, as defined in § 25-7-103(9), C.R.S., the division of administration of the department of public health and environment.
LPA means Lead Planning Agency, which shall be the agency charged, together with the Division, with the duty of developing the State Implementation Plan (SIP) for any nonattainment or maintenance area. Unless otherwise appointed by the Governor, the LPA for the Denver nonattainment area shall be the Regional Air Quality Council; the LPA for the Colorado Springs nonattainment area shall be the Pikes Peak Area Council of Governments; the LPA for the Ft. Collins and Greeley nonattainment areas shall Be the North Front Range Transportation and Air Quality Planning Council. The requirements of this rule shall also apply to any successors of such LPAs, and to any LPA that is subsequently created for any area, or that otherwise assumes the duties and obligations of the LPAs identified in this definition. The Division, in consultation with the municipal and county governments within the affected nonattainment area, shall perform any duty or obligation assigned to the LPA for the Longmont nonattainment area, and for any area for which there is no LPA or for which the LPA is unwilling or unable to perform such duty or obligation.
Metropolitan planning area means the geographic area in which the metropolitan transportation planning process required by 23 U.S.C. 134 and section 8 of the Federal Transit Act must be carried out. Metropolitan planning organization (MPO) is that organization designated as being responsible, together with the State, for conducting the continuing, cooperative, and comprehensive planning process under 23 U.S.C. 134 and 49 U.S.C. 1607. It is the forum for cooperative transportation decision-making. For purposes of this rule, the MPO for the Denver and Longmont nonattainment areas shall be the Denver Regional Council of Governments (DRCOG), the MPO for the Colorado Springs nonattainment area shall be the Pikes Peak Area Council of Governments (PPACG), and the MPO for the Fort Collins and Greeley nonattainment areas shall be the North Front Range Transportation and Air Quality Planning Council (NFRTAQPC). The requirements of this rule shall also apply to any successors of such MPOs, any MPO that is subsequently created for any area, any MPO for any other area that becomes a nonattainment area, or any MPO that otherwise assumes the duties and obligations of the MPOs identified in this definition.
Regionally significant project means:
(1) in any nonattainment area that is within a metropolitan planning area, a transportation project (other than an exempt project) that is on a facility which serves regional transportation needs (such as access to and from the area outside of the region, major activity centers in the region, major planned developments such as new retail malls, sports complexes, etc., or transportation terminals, as well as most terminals themselves) and would normally be included in the modeling of a metropolitan area's transportation network, including at a minimum all principal arterial highways and all fixed guideway transit facilities that offer an alternative to regional highway travel.
(2) in all nonattainment areas outside of metropolitan planning areas, a transportation project (other than an exempt project) that is on a facility which serves regional transportation needs (such as access to and from the area outside of the region, major activity centers in the region, major planned developments such as new retail mails, sports complexes, etc., or transportation terminals, as well as most terminals themselves) and that could reasonably be included in the regional emissions analysis in such nonattainment area, including at a minimum all principal arterial highways and all fixed guideway transit facilities that offer an alternative to regional highway travel.
IV. Interagency Consultation IV.A. Roles and Responsibilities IV.A.1. This rule sets out the minimum requirements for interagency consultation (Federal, State, regional and local) and resolution of conflicts. Representatives of the MPOs, local transit agency, the Division, the LPA and CDOT shall undertake an interagency consultation process in accordance with this section with each other and with local or regional offices of EPA, FHWA, and FTA on the development of the implementation plan, the list of TCMs in the applicable implementation plan, the transportation plan, the TIP, and all conformity determinations required by this rule. The MPO shall provide notice of any revisions to the preceding documents through the normal planning process. The interagency consultation process shall apply to any revisions of the preceding documents that could affect conformity.
IV.A.2. It shall be the role and responsibility of each agency identified as a lead agency to prepare the final document and to ensure the adequacy of the interagency consultation process. Designation as a lead agency for any decision item shall mean that such agency shall be responsible for making the final decision on such decision item, except that any such decision shall be subject to the dispute resolution process set out in § IV.H.
IV.A.3. In each nonattainment area, CDOT, the LPA, the Division, the MPO, local transit agency, and other agencies, as appropriate, may develop a written agreement pursuant to § IV.G. that outlines the specific roles and responsibilities of various participants in the interagency consultation process for the preparation of SIPs, transportation plans, TIPs and conformity determinations. In the absence of such a written agreement, in addition to the other duties specified in this rule, the specific roles and responsibilities of the various participants in the interagency consultation process shall be as follows:
IV.A.3.b. The LPA, or the Division if there is no LPA, shall: (A) develop pollutant- specific state implementation plans for submittal to the Commission; and
IV.A.3.c. The MPO shall: (A) develop transportation plans and TIPs, and shall make conformity determinations on transportation plans and TIPs within the applicable area, and shall be the lead agency for the development of such plans and TIPs, and for such conformity determinations; (B) evaluate TCM transportation impacts; (C) develop transportation and socioeconomic data and planning assumptions and provide such data and planning assumptions to the Division for use in air quality anlaysis
IV.A.3.d. CDOT shall: (A) provide technical input on proposed revisions to motor vehicle emissions factors, (B) distribute draft and final project environmental documents to other agencies for projects on which CDOT performs a conformity determination, (C) convene air quality technical review meeting on specific projects when requested by other agencies or as needed, (D) comment on transportation control measures and other aspects of the SIP that may affect the operation, construction or maintenance of the transportation system.
IV.A.3.e. In addition to the duties and responsibilities identified in paragraph d. above, for FHWA/FTA projects located outside of metropolitan planning areas, CDOT shall: (A) perform the required conformity evaluation for such projects, and shall be the lead agency for such evaluations; (B) provide technical and policy input on emissions budgets; (C) develop socioeconomic data and planning assumptions for use in air quality analysis to determine conformity of projects in consultation with the affected municipal and county governments; and (D) perform transportation modeling, regional emissions analyses and documentation of timely implementation of TCMS needed for conformity assessments. IV.A.3.f. The Commission shall be responsible for promulgating revisions to the SIP and for determining whether a conformity determination should be appealed to the Governor.
IV.B. Establishing a forum for consultation IV.B.1. Minimum Consultation Requirements.
IV.B.1.b. The Review Team shall consist, at a minimum, of the MPO, the local transit agency, the Division, CDOT and the LPA. In addition, the Review Team shall include EPA, FHWA and the FTA for the topics identified in subsection C.1. The agencies on the review team may appoint individual staff members, of any organizational level, to participate in the Review Team.
IV.B.1.c. The Review Team established pursuant to paragraphs a. and b. shall comply with the following minimum requirements:
IV.B.1.c.(4) Any member may, at any time, request a meeting through the consultation process. Upon such a request, the MPO should schedule a meeting as soon as practicable.
IV.B.1.c.(5) The MPO shall respond in written form to written comments received from any of the members of the Review Team.
IV.C. Topics for consultation IV.C.1. The Review Team shall address the following topics in the manner provided. Outside of the metropolitan planning areas, CDOT shall perform the tasks assigned to the MPO.
IV.C.1.b. Determining which minor arterials and other transportation projects should be considered “regionally significant” for the purposes of regional emissions analysis (in addition to those functionally classified as principal arterial or higher or fixed guideway systems or extensions that offer an alternative to regional highway travel), and which projects should be considered to have a significant change in design concept and scope from the transportation plan or TIP.
The MPO shall consult with the other participants on the following matters, and shall:
IV.C.1.b.(2) As part of its regular review process or as part of the consultation forum, review the transportation projects disclosed to the MPO pursuant to § IV.E., and all transportation projects otherwise known to the members that may be regionally significant projects, and identify as regionally significant those projects that are on a facility which serves regional transportation needs and that would normally be included in the modeling of the metropolitan area's transportation network.
IV.C.1.b.(3) Determine whether there has been a significant change in design concept and scope of any project from the transportation plan or TIP, or regional emissions analysis supporting the conformity determination for a conforming TIP, upon the request of any participant in the consultation process, or any recipient of funds designated under title 23 or the Federal Transit Act with authority to adopt or approve of the subject regionally significant project IV.C.1.c. Evaluating whether projects otherwise exempted from meeting the requirements of this subpart (see 40 CFR. 93.126 and 93.127) should be treated as non-exempt in cases where potential emissions impacts may exist for any reason.
IV.C.1.c.(1) In each metropolitan planning area, the MPO shall, as part of its regular consultation process, or at the request of any participant in the consultation process, determine whether projects otherwise exempt from meeting the requirements of this subpart should be treated as non-exempt in cases where potential emissions impacts may exist for any reason.
IV.C.1.c.(2) For each non-attainment area that is outside of a metropolitan planning area, CDOT shall consult with the Review Team to identify categories of exempt projects that should be treated as non-exempt for such area.
IV.C.1.d. Making a determination, as required by 40 CFR § 93.113(c)(1). whether past obstacles to implementation of TCMs which are behind the schedule established in the applicable implementation plan have been identified and are being overcome, and whether State and local agencies with influence over approvals or funding for TCMs are giving maximum priority to approval or funding for TCMs.
IV.C.1.d.(2) The MPO, after consultation with the other participants in the consultation process shall determine whether past obstacles to implementation of TCMs which are behind the schedule established in the applicable implementation plan have been identified and are being overcome, and whether State and local agencies with influence over approvals or funding for TCMs are giving maximum priority to approval or funding for TCMs. For each such determination, the MPO shall identify the past obstacles, the steps taken to overcome such obstacles, the State and local agencies with influence over approvals or funding, the basis for finding that such agencies are giving maximum priority to such approval or funding, and a revised schedule for the implementation of the TCM.
IV.C.1.d.(3) The MPO shall report a determination that past obstacles to implementation of a TCM which is behind schedule have not been identified or are not being overcome, or that State and local agencies with influence over approvals, or funding of such TCMs are not giving maximum priority to approval or funding for TCMs, to the agency sponsoring the TCM, the Division, the Commission and the Governor. The Commission may schedule the matter for a hearing to remove or replace such TCMs.
IV.C.1.e. Notification of transportation plan or TIP revisions or amendments which merely add or delete exempt projects listed in 40 CFR §93.126. The MPO shall provide notice through the normal planning process, prior to consideration of any proposed amendment that adds or deletes exempt projects listed in 40 CFR § § 93.126 to or from the transportation plan or TIP. IV.C.1.f. Process for providing final documents and supporting information to each agency after approval or adoption. The MPO shall transmit final TIPS, and transportation plans to participants in the consultation process. IV.C.1.g. Choosing conformity tests and methodologies for isolated rural nonattainment areas, as required by 40 CFR § 93.109(q)(2)(iii). The Division and CDOT shall choose, in consultation with the members of the Review Team, the requirements and methodologies to be used to comply with 40 CFR § 93.109 If the Division and CDOT cannot agree the issue shall be referred to the Commission for review at a Public meeting pursuant to § IV.H. The Commission may escalate the matter to the Governor as provided in § IV.H. IV.C.2. The Review Team shall address the following topics in the manner provided. Outside of the metropolitan planning areas CDOT shall perform the tasks assigned to the MPO.
IV.C.2.a. Evaluating events which will trigger new conformity. determinations in addition to those triggenring events established in 40 CFR 93.104. IV.C.2.a.(1) The MPO may identify events which will trigger new conformity determinations in addition to those triggering events established in 40 CFR § 93.104 and the pollutant specific SIPs. Alternatively, the Commission may promulgate regulations or revise the SIP to identify events which will trigger a new conformity determination.
IV.C.2.b. Consulting on emissions analysis for transportation activities which cross the borders of MPOs or nonattainment areas or basins. In the event that contiguous MPOs are created within the state, the event that contiguous MPOs shall, in consultation with the participants in the consultation process establish a consultation procedure for consulting on emissions analyses for transportation activities which cross the borders of MPOs or nonattainment areas or air basins.
IV.C.2.c. Determining conformity of projects outside the metropolitan area and within the nonattainment or maintenance area.
In the event that a nonattainment or maintenance area is created in the state that includes a metropolitan planning area, but such metropolitan planning area does not include the entire nonattainment or maintenance area, the affected MPO, in consultation with the participants in the consultation process, shall establish a consultation procedure for consulting on emissions analyses for transportation activities which cross the borders of MPOs or nonattainment areas or air basins. IV.C.2.d. Process for consulting on the design, schedule, and funding of research and data collection efforts and regional transportation model development by the MPO.
The MPO, in consultation with the Review Team shall determine the design, schedule and funding of significant research and data collection efforts and regional transportation model development.
IV.C.3. (3) Hot-spot analysis: (1) Evaluating and choosing a model (or models) and associated methods and assumptions to be used in hot-spot modeling: and (2) identifying, as required by 40 CFR § 93.123(b). projects located at sites in PM10 nonattainment areas which have vehicle and roadway emission and dispersion characteristics which are essentially identical to those at sites which have violations verified by monitoring, and therefore require quantitative PM10 hot- spot analysis.
IV.C.3.b. CDOT and the Division shall establish a Review Team to evaluate and choose a model (or models) and associated methods and assumptions to be used in hot-spot analyses. CDOT shall be responsible for selecting the hot spot model to be used for conformity determinations. IV.D. Process for assuming the location and design concept and scope of projects which are disclosed to the MPO as required by paragraph (e) of this section but whose sponsors have not vet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of 40 CFR § 93.122. IV.D.1. The MPO shall contact the sponsor of any project disclosed to the MPO pursuant to § IV.E., but whose sponsors have not yet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of 40 CFR § 93.122, and shall request that such sponsor develop the location and design concept and scope of the project for the purpose of including the project in the regional emissions analysis.
IV.D.2. If the sponsor is unwilling or unable to provide these features to the MPO in a timely fashion, the MPO shall propose reasonable assumptions about such features, and shall provide CDOT, the Division, the LPA, the project sponsor, and any recipient of funds designated under title 23 U.S.C. or the Federal Transit Act that has the authority to adopt or approve of the project, with a written description of the proposed assumptions. Following consultation with such agencies the MPO shall make assumptions about the location and design concept and scope of the project that are reasonably calculated to estimate the emissions associated with such project. Such assumptions shall be based on the information and comments about the project received by the MPO. IV.E. Process to ensure that plans for construction of regionally significant projects which are not FHWA/FTA projects (including projects for which alternative locations, design concept and scope, or the no-build options are still being considered), including those by recipients of funds designated under title 23 U.S.C. or the Federal Transit Act, are disclosed on a regular basis, and to ensure that any changes to those plans are immediately disclosed.
Prior to conducting a conformity analysis, the MPO shall ensure that CDOT and each municipality, county and public transit agency within the metropolitan planning area, and each special district, improvement authority and regional agency with the authority to adopt or approve of transportation projects within the metropolitan planning area, are notified of the requirement to include regionally-significant projects, and changes to plans for such projects in the regional emissions analysis.
IV.F. Consultation procedures for development of State Implementation Plans IV.F.1. Minimum Consultation Requirements - SIP development and revision. In each nonattainment or maintenance area, the LPA or the Division shall establish and maintain a Review Team for regular consultation to ensure that the transportation community is involved in the development of the implementation plans. Such Review Team shall also be established to develop and review any SIP revision that includes a new or revised mobile source emissions budget, or that requires a new or revised attainment or maintenance demonstration. The Review Team may be part of a larger consultation procedure established by the LPA or Division to include all sectors of the community (in addition to the transportation community) The consultation procedure shall comply with the minimum requirements listed below. If the Review Team is established by the Division, the Division shall perform the tasks assigned to the LPA. IV.F.!.a. The Review Team shall consist of representatives of the MPO, the Division, CDOT, the EPA, FHWA, FTA, and the public transit agency. IV.F.1.b. The LPA shall begin consultation meetings early enough in the process for Review Team members to adequately review the modeling used to support the SIP, and to review the proposed control measures. The LPA must provide an opportunity to review copies of the draft implementation plan, including supporting documents, to the other members of the Review Team, and shall provide at least thirty days for the submission of comments on the draft SIP prior to adoption by the LPA. IV.F.1.c. A schedule of meetings or a process for providing adequate notice of subsequent meetings shall be developed as part of the consultation process. The schedule of meetings shall be frequent enough to address all significant issues in a timely fashion.
IV.F.1.f. The LPA shall respond in written form to written comments received from any of the participants.
IV.F.1.g. SIPs and SIP revisions proposed by the LPA shall be subject to final approval by the Commission following a public hearing. The Division shall provide final copies of any SIP or SIP revision to the MPO, CDOT the LPA the public transit agency, the EPA, the FHWA, and FTA.' IV.F.2. The LPA shall submit a list of TCMs included in the proposed SIP to the MPO, CDOT and each affected local agency or other sponsoring agency at least thirty days prior to approval of the SIP or SIP revision by the governing board of the LPA.
IV.F.3. The SIP development procedures set out in this § IV.F. shall be in addition to any other rules or regulations applicable to SIP development or SIP revisions. Nothing in this § IV.F. shall be construed to supersede alter or amend such other rules, or to incorporate such other requirements into the SIP. IV.G. Agreements further describing consultation procedures IV.G.1. The Division may enter into written agreements with the members of the Review Team to clarify and further develop the procedures for conformity determinations described in this § IV. The Division may also enter into written agreements with the LPA and members of the committee established pursuant to § IV F to further clarify or develop the SIP development procedures. The members of the Review Team may, by mutual agreement delegate the tasks assigned to them under this rule to other members. Any member of the review team delegating a task shall conduct reasonable oversight of the delegated task as necessary to ensure proper performance.
IV.G.2. Nothing in this regulation shall be construed to relieve the parties of the obligations set out in agreements entered into prior to the effective date of this rule, except to the extent that the provisions of such agreements are inconsistent with this rule. The Commission and Division shall continue membership on any MPO committee or council as provided in any such agreements. IV.H. Review of Conformity Determinations by Air Quality Control Commission and resolution of conflicts.
IV.H.1. Each conformity determination on a TIP or plan shall be presented to the Commission for its review prior to submittal to FHWA.
IV.H.2. Upon request of any member of the Review Team, a conformity determination on an FHWA project located outside of a metropolitan planning area shall be presented to the Commission prior to submittal to FHWA if there is a conflict that cannot be resolved by the Review Team. The request for such review must be filed as soon as practicable and shall not be filed any later than the first regularly scheduled Commission meeting following the final conformity determination. IV.H.3. The Commission intends to conduct public meetings to review conformity determinations in accordance with the applicable provisions of the Air Quality Control Commission Procedural Rules, and reserves the right to schedule such meetings as permitted by the Commission's schedule and as necessary to comply with such procedural rules. However, this paragraph shall not be construed to incorporate such procedural rules into the SIP. No violation of such procedural rules shall be construed as a violation of the SIP, except where such procedural rules otherwise have been incorporated into the SIP. IV.H.4. Conflicts among State agencies or between State agencies and an MPO may be escalated to the Governor as provided in 40 CFR § 93.105(d). The fourteen calendar-days in which to appeal a conflict to the Governor shall commence upon review of a final conformity determination by the Commission pursuant to this subsection H., except as provided below:
IV.H.4.c. For purposes of project level conformity determinations in isolated rural nonattainment and maintenance areas, a “final conformity determination” shall be taken to mean CDOT's completed conformity analysis and recommended finding of conformity to FHWA.
V. Emission reduction credit for certain control measures. V.A. Pursuant to 40 CFR § 93.122(a)(4), emissions reduction credit from control measures that are not included in the transportation plan and TIP and that do not require a regulatory action in order to be implemented may not be included in the emissions analysis unless the conformity determination includes written commitments to implementation from the appropriate entities.
V.B. Any entity making a written commitment to perform a control measure shall fulfill such written commitment if the control measure is used for emissions reduction credit in a regional emissions analysis.
VI. Statements of Basis, Specific Statutory Authority, and Purpose VI.A. October 15,1998 The change to Regulation No. 10, “Criteria for Analysis of Conformity, Part B, Transportation Conformity” will establish criteria and procedures for making conformity determinations on transportation plans, transportation improvement programs (TIPs), FHWA/FTA projects, and consultation procedures for major revisions to the State Implementation Plan (SIP).
Federal Requirements Pursuant to 40 CFR § 51.390, Colorado must submit to the EPA and the U.S. Department of Transportation (DOT), a revision to the SIP to establish criteria and procedures for DOT, metropolitan planning organizations (MPOs), and state and local transportation and air quality agencies to assess the conformity of transportation plans, programs, and projects, consistent with the requirements of 40 CFR, part 93, subpart A. The states may incorporate the substantive criteria for making conformity determinations set out in the federal rule, into the state rule by reference. The rule adopted by the Commission takes advantage of this opportunity and incorporates the criteria in 40 CFR part 93, subpart A by reference.
The federal rule also requires the states to develop procedures for interagency consultation on transportation conformity determinations, and for SIP revisions. The federal rule establishes minimum requirements for such consultation procedures, but does not actually establish any procedures. Pursuant to 40 CFR § 51.390 and 93.105, the states must develop and adopt such procedures, and submit the procedures to EPA for inclusion in the SIP. The rule adopted by the Commission establishes procedures for interagency consultation, and addresses each of the topics required by 40 CFR § 93.105. The consultation procedure established in the rule is intended to create a meaningful interagency consultation process that complies with the federal requirements, but that provides the flexibility necessary to meet the needs of the Colorado Department of Transportation and the various MPOs in the State. The interagency consultation requirements track the minimum federal requirements, and are not otherwise more stringent than the federal requirements.
The only provision in the rule that differs from the federal rule is the definition of the term “regionally significant project” contained in the state rule. The state rule includes a definition applicable to rural nonattainment areas that do not conduct modeling of the area's transportation network. The federal rule appears to assume that all nonattainment areas conduct such modeling. The specific definition in the rule for rural areas is necessary to reconcile the federal rule with the general practice in rural nonattainment areas, but is not more stringent than federal requirements. Contested Issues One MPO urged the Commission to adopt a rule requiring a public meeting to be held prior to final action by the MPO. The rule is written to allow flexibility, so that MPOs have the option of coming to the Commission either before or after their governing board takes final action on the conformity determination. However, the Commission strongly encourages the MPOs to submit a draft conformity determination to the AQCC for comment, so that the MPO can take the Commission's comments into account as early in the process as possible.
Statutory authority.
The transportation conformity rule is adopted under the Commission's general authority to adopt a SIP under § 25-7-105(1), C.R.S. (1997).
Findings pursuant to § 25-7-110.8 The portion of the rule incorporating the federal criteria for making conformity determinations is exempt from the requirements of § 25-7-110.8, C.R.S. (1997). The consultation requirements are administrative in nature, and are exempt from the requirements of § 25-7-110.8(1)(b). C.R.S. The interagency consultation requirements establish a procedure for ensuring that the federal, state and local air quality agencies charged with protecting human health and the environment are consulted during the transportation conformity process. In this way, the rule will bring about reductions in risks to human health or the environment that will justify the cost of implementation of the rule. The rule adopted by the Commission complies with the minimum federal requirements and maximizes the air quality benefits of the regulation in the most cost-effective manner. No other party proposed any alternative rule that would accomplish this result in a more cost-effective manner.
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