DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT Air Quality Control Commission REGULATION NUMBER 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 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, South, Denver, CO 80246-1530, 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. 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 Number 10 is to implement a State Implementation Plan (SIP) governing transportation conformity determinations, including the establishment of state-specific interagency consultation procedures, and addressing the obtainment and enforceability of written commitments to certain transportation control measures and project mitigation and control measures, as required by 40 CFR, Section 51.390, as published at 62 Federal Register 158 (August 15, 1997), and as amended through 73 Federal Register 4439, January 24, 2008.

I.B. This rule shall have the same applicability as 40 CFR, Part 93, as published at 62 Federal Register 158 (August 15, 1997), and as amended through 73 Federal Register 4439, January 24, 2008. 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 Federal Register 158 (August 15, 1997), and as amended through 73 Federal Register 4439, January 24, 2008. 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 Title 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 Section IV. of this document specify Colorado procedures and shall apply in addition to the consultation procedures established in 40 CFR Section 93.105 (a) through (e).

II.B. Colorado-specific provisions in Section V. of this document that require obtainment of and fulfillment of written commitments to SIP control measures not included in a transportation plan or Transportation Improvement Program (TIP) shall apply, pursuant to 40 CFR Section 93.122 (a)(4)(ii).

II.C. Colorado-specific provisions in Section VI. of this document regarding design concept and scope and enforceability of project-level mitigation and control measures shall apply, pursuant to 40 CFR Section 93.125 (c).

III. Definitions In addition to the Federal rule definitions incorporated by reference, the following terms are defined or further delineated:

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 The Air Pollution Control Division, pursuant to § 25-7-111, C.R.S. 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, Loveland, and Greeley nonattainment areas shall be the North Front Range Transportation and Air Quality Planning Council, also known as the North Front Range MPO. 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 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.

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 Section 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 Section 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.a. Division shall be responsible for: (A) emissions inventories; (B) air quality modeling; (C) performing attainment demonstrations; (D) assisting the LPA in the development of pollutant specific implementation plan revisions; (E) providing technical and policy input on emissions budgets; and (F) updating motor vehicle emissions factors.

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 (B) prepare emissions budgets.

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) develop transportation and socioeconomic data and planning assumptions and provide such data and planning assumptions to the Division for use in air quality analysis; (C) perform transportation modeling and documentation of timely implementation of TCMs needed for conformity assessments and SIP development; and (D) monitor regionally significant projects, and ensure that all disclosed, or otherwise known, regionally significant projects are included in the regional emissions analysis. The MPO may: (E) provide technical and policy input on emissions budgets; and (F) evaluate TCM impacts on transportation as needed.

IV.A.3.d. CDOT shall: (A) provide technical input on proposed revisions to motor vehicle emissions factors, (B) convene air quality technical review meetings on specific projects when requested by other agencies or as needed, and (C) 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. CDOT may via formal agreement, arrange to have other organizations, including MPOs perform such conformity determination tasks. 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.a. The MPO shall establish and maintain a forum, herein referred to as the review team, for regular consultation. The MPO may establish a committee, or use existing committees, to perform the tasks assigned to the review team, provided the agencies identified in Subparagraph IV.B.1.b., below, have an opportunity to participate. Conference calls or written correspondence may be used to hold the meetings required by this rule upon the concurrence of the Division and any affected LPA. The review team shall comply with the minimum requirements set out in paragraph c. below, except that, outside of metro planning areas, CDOT shall perform the functions assigned to the MPO.

IV.B.1.b. The review team shall consist, at a minimum, of the MPO as lead agency, 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.(1) The MPO consultation process shall begin early enough for the review team to adequately review and provide meaningful input on draft transportation plans, TIPs and conformity determinations, including supporting documents.

IV.B.1.c.(2) 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.B.1.c.(3) The MPO shall establish an agenda for each meeting, and shall include in such agenda any issue or item upon the request of any member.

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 copying all review team members.

IV.C. Topics for consultation IV.C.1. The review team shall address the following topics in the manner provided. IV.C.1.a. Evaluating and choosing a model (or models) and associated methods and assumptions to be used in regional emissions analyses . The MPO shall be responsible for selecting the transportation modeling procedures to be used within its modeling domain. The Division shall be responsible for selecting the emissions or air quality modeling procedures used for performing regional emissions analyses for conformity determinations and for SIP revisions.

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 .

IV.C.1.b.(1) The review team shall review the transportation network and identify minor arterials that serve regional transportation needs. IV.C.1.b.(2) Review the transportation projects disclosed to the MPO pursuant to Section 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) Identify any significant changes in design concept and scope of any project from the transportation plan, 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 Sections 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) At the request of any participant in the consultation process, the review team shall 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 Section 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.(1) The LPA and the Division shall provide the MPO with information necessary to develop a list of the TCMs, which are in the applicable implementation plan. The LPA may also request that the MPO, CDOT, the public transit agency, or any other agency responsible for implementing such a TCM reaffirm the commitment to implement the applicable TCM pursuant to the schedule.

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 Section 93.126 or 93.127 .

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 Section 93.126 or 93.127 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 Section 93.109(I) . 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 Section 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 Section IV.H. The Commission may escalate the matter to the Governor as provided in Section 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, excepting conformity determination tasks that it contracts out to other entities.

IV.C.2.a. Evaluating events which will trigger new conformity determinations in addition to those triggering events established in 40 CFR 93.104 . IV.C.2.a.(1) The MPO may identify events that would trigger new conformity determinations in addition to those triggering events established in 40 CFR Section 93.104, and the pollutant specific SIPs. Alternatively, the Commission may promulgate regulations or revise the SIP to identify events that would trigger a new conformity determination.

IV.C.2.a.(2) The MPO will consult with the review team to evaluate whether events that may trigger a new conformity determination pursuant to 40 CFR Section 93.104 or a pollutant specific SIP have occurred.

IV.C.2.b. Consulting on emissions analysis for transportation activities that cross the borders of MPOs or nonattainment areas or basins .

In the event that contiguous MPOs are created within the state, the affected MPOs shall, in consultation with the participants in the consultation process, establish a consultation procedure for consulting on emissions analyses for transportation activities that 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 or areas, but such metropolitan planning area(s) does not include the entire nonattainment or maintenance area, the affected MPOs, in consultation with the participants in the consultation process, shall establish a procedure for consulting on emissions analyses for transportation activities that 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 Section 93.123(b), projects located at sites in nonattainment or maintenance areas that have vehicle and roadway emission and dispersion characteristics essentially identical to those at sites where violations have been verified by monitoring, and therefore require quantitative pollutant hot-spot analysis . CDOT, the APCD, USEPA, and USDOT will: IV.C.3.a. Determine which types of projects should be evaluated for localized hot spots. CDOT, subject to concurrence by the Division, shall identify the projects or categories of projects that shall be evaluated for potential hot spots.

IV.C.3.b. 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 disclosed to the MPO as required by paragraph (E) of this section 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 Section 93.122 . IV.D.1. The MPO shall contact the sponsor of any project disclosed to the MPO pursuant to Section 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 Section 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.1.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.d. The LPA shall establish an agenda for each meeting, and shall include in such agenda any issue or item upon the request of any participant. IV.F.1.e. Any member may, at any time, request a meeting to consult with the LPA and the other participants. Upon such a request the LPA should schedule a meeting as soon as practicable.

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 Section IV.F. shall be in addition to any other rules or regulations applicable to SIP development or SIP revisions. Nothing in this Section 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 Section IV. The Division may also enter into written agreements with the LPA and members of the committee established pursuant to Section 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 the public, the Air Quality Control Commission, and resolution of conflicts .

IV.H.1. Per, 40 CFR Section 93.105(e), agencies making conformity determinations must provide for public review and comment prior to adopting new or amended transportation plans-and programs.

IV.H.1.a. Agencies making conformity determinations must provide reasonable public access to relevant documents, consistent with 23 CFR Section 450.316(a). Any charges imposed for public inspection or copying of documents would be consistent with USDOT regulations at 49 CFR Section 7.43.

IV.H.1.b. Agencies making conformity determinations must specifically address in writing any public comments asserting that a regionally significant project is not reflected in the emissions analysis supporting a positive conformity finding.

IV.H.1.c Agencies making conformity determinations shall provide opportunity for public involvement in conformity determinations for projects where otherwise required by law.

IV.H.2. Each conformity determination on a TIP or plan shall be presented to the Commission for its review prior to submittal to FHWA.. 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 has been incorporated into the SIP.

IV.H.3. 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.4. In accordance with 40 CFR section 93.105(d), conflicts among State agencies or between State agencies and an MPO may be escalated to the Governor. The fourteen calendar-days in which to appeal a conflict to the Governor shall commence upon review of a conformity determination by the Commission pursuant to this Subsection H., except as provided below at Sections (a) and (b). If the State appeals to the Governor, the final conformity determination must have the concurrence of the Governor. If the Commission does not appeal to the Governor within 14 days, or as provided below at Sections (a) and (b), the MPO or CDOT may proceed with the final conformity determination. IV.H.4.a. The Commission may extend the beginning of the time to escalate a conflict to the next regularly scheduled Commission meeting if the entity making the conformity determination amends such determination during the fourteen-day period preceding the Commission meeting. IV.H.4.b. Upon the agreement and concurrence of the entity making the conformity determination, the Commission may extend the beginning of the time to escalate a conflict as necessary to accommodate further consultation among the agencies.

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 Section 93.122(a)(4), emissions reduction credit from implementation plan 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 not included in the transportation plan or TIP shall fulfill such written commitment if the control measure is used for emissions reduction credit in a regional emissions analysis. VI. Enforceability of design concept and scope and project-level mitigation and control measures .

VI.A. Pursuant to 40 CFR Section 93.125 (c), where project-level mitigation is conditional to a positive conformity determination, written commitments to such mitigation measures must be obtained. Project sponsors shall comply with these commitments. VII. Statements of Basis, Specific Statutory Authority, and Purpose VII.A. October 15, 1998 The change to Regulation Number 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 Section 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 Section 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 Section 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.

VII.B. November 20, 2008 [Eff. 12/30/2008] Transportation Conformity Update Background This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Administrative Procedures Act, Section 24-4-103, C.R.S. and the Colorado Air Pollution Prevention and Control Act, Section 25-7-110.5, C.R.S.

Basis and Purpose These revisions to “Part B, “Transportation Conformity,” update the Regulation to incorporate by reference revisions to the federal rule, and to recognize Colorado-specific practices. The incorporations by reference adopt revisions to federal conformity regulations adopted by the EPA since 1997. Most of these revisions have streamlined processes and relaxed requirements. The revisions add language that addresses 40 CFR Section 93.122(a)(4)(ii) regarding obtaining and ensuring the fulfillment of written commitments to SIP control measures needed to achieve or maintain national ambient air quality standards that are not included in transportation plans or programs. These revisions also add language that addresses Section 93.125(c) regarding obtaining and ensuring the fulfillment of written commitments to transportation project mitigation measures. These are not new federal provisions, but they are newly required to be “addressed,” i.e., made explicit in state conformity implementation plans. These revisions also make non-substantive changes including correcting citations, clarifying language, and striking of unnecessary or confusing language. Federal Requirements Pursuant to 40 CFR Section 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, and requires States to establish these consultation procedures, including consultation with the public and conflict resolution at 40 CFR, Sections 93.105 (c) and (d). Pursuant to 40 CFR Sections 51.390 and 93.105, the states must develop and adopt such procedures, and submit the procedures to EPA for inclusion in the SIP. Pursuant to 40 CFR Sections 93.122(a)(4)(ii) and 93.125(c), States must also address the obtainment and enforceability of written commitments to SIP control measures not included in transportation plan as well as transportation project mitigation measures. Statutory Authority This 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 revisions addressing public consultation, conflict resolution, written commitments to SIP control measures not contained in transportation plans and project-level mitigation conditional to a conformity determination track the requirements in federal rules and are mandated by federal law. These revisions provide for written commitment to incorporate mitigation measures into project design for transportation projects. Mitigation measures are frequently necessary to reduce localized emissions associated with transportation project construction, but rarely relied upon for conformity determinations. Where such commitments are necessary for a positive conformity determination, they must be enforced so as to reduce risks to human health or the environment, which justifies 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.

____________________________________________________ Editor’s Notes History Entire Rule eff. 12/30/2008.