[Federal Register Volume 78, Number 218 (Tuesday, November 12, 2013)]
[Proposed Rules]
[Pages 67327-67330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-27030]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2011-0562; FRL-9902-66-Region 8]


Approval and Promulgation of Air Quality Implementation Plans; 
State of Colorado; Revised Transportation Conformity Consultation 
Process

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing approval of a State Implementation Plan (SIP) 
revision submitted by the State of Colorado on May 11, 2012. The May 
11, 2012 submittal addresses updates to Regulation Number 10 ``Criteria 
for Analysis of Conformity'' of the Colorado SIP including revisions to 
transportation conformity requirements, transportation conformity 
criteria and procedures related to interagency consultation, and 
enforceability of certain transportation related control and mitigation 
measures. The submittal also removes certain provisions from the SIP so 
that federal rules will govern conformity of general federal actions. 
EPA is proposing approval of the submission in accordance with the 
requirements of section 110 of the Clean Air Act (CAA).

DATES: Comments must be received on or before December 12, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2011-0562, by one of the following methods:
     www.regulations.gov. Follow the on-line instructions for 
submitting comments.
     Email: [email protected].
     Mail: Carl Daly, Director, Air Program, Environmental 
Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129.
     Fax: (303) 312-6064 (please alert the individual listed in 
FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Hand Delivery: Carl Daly, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only 
accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding 
Federal holidays. Special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2011-0562. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' systems, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA, without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm. For additional 
instructions on submitting comments, go to Section I. General 
Information of the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Program, 
Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129. EPA requests that if at all possible, you contact 
the individual listed in the FOR FURTHER INFORMATION CONTACT section to 
view the hard copy of the docket. You may view the hard copy of the 
docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Tim Russ, Air Program, Mailcode 8P-AR, 
Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, telephone number (303) 312-6479, fax number (303) 
312-6064, or email [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
II. What is the purpose of this action?
III. What is the State's process to submit SIP revisions to EPA?
IV. EPA's Evaluation of the State's May 11, 2012 Submittal
V. Consideration of Section 110(l) of the Clean Air Act
VI. Proposed Action
VII. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, the following definitions apply:
    (i) The word Act or initials CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials NAAQS mean national ambient air quality 
standard.
    (iv) The initials SIP mean or refer to State Implementation Plan.
    (v) The words State or Colorado mean the State of Colorado, unless 
the context indicates otherwise.

I. General Information

What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.

[[Page 67328]]

    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. What is the purpose of this action?

    EPA is proposing approval of revisions to Colorado's Regulation 
Number 10, ``Criteria for Analysis of Conformity,'' (hereafter, 
``Regulation No. 10'') of the Colorado SIP that address transportation 
conformity SIP requirements of section 176(c) of the CAA and Title 40, 
part 51.390(b) of the Code of Federal Regulations (CFR). Specifically, 
a conformity SIP must address the following transportation conformity 
requirements: 40 CFR 93.105, which formalizes the consultation 
procedures; 40 CFR 93.122(a)(4)(ii), which addresses written 
commitments to control measures that are not included in a metropolitan 
planning organization's transportation plan and transportation 
improvement program (TIP) that must be obtained prior to a conformity 
determination; and 40 CFR 93.125(c), which addresses written 
commitments to mitigation measures that must be obtained prior to a 
project-level conformity determination.\1\
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    \1\ A conformity SIP includes a state's specific criteria and 
procedures for certain aspects of the transportation conformity 
process consistent with the federal conformity rule. A conformity 
SIP does not contain motor vehicle emissions budgets, emissions 
inventories, air quality demonstrations, or control measures. See 
EPA's Guidance for Developing Transportation Conformity State 
Implementation Plans (SIPs) for further background: www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf.
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    EPA notes that the State submitted prior SIP revisions to 
Regulation No. 10 by a letter dated June 18, 2009. The June 18, 2009 
SIP submittal addressed revisions to numerous aspects and sections in 
Regulation No. 10. Those prior revisions to Regulation No. 10 are 
contained in the May 11, 2012 revisions to Regulation No. 10. In 
addition to further clarifying transportation conformity consultation 
procedures, the May 11, 2012 revision responded to changes in federal 
law by removing SIP provisions related to general conformity.
    EPA had previously determined that the June 18, 2009 revisions to 
Regulation No. 10 were fully approvable. As EPA has determined that the 
May 11, 2012 revisions to Regulation No. 10 are also fully approvable, 
we are, therefore, only acting on the May 11, 2012 Regulation No. 10 
revisions as they supersede and replace the June 18, 2009 revisions. By 
approving these May 11, 2012 revisions to Regulation No. 10, EPA will 
be making them part of the federally enforceable SIP for Colorado under 
the CAA. EPA also notes that the May 11, 2012 SIP submission is also 
intended to revise and supersede the conformity SIP that was previously 
approved by EPA in 2001 (66 FR 48561).

III. What is the State's process to submit SIP revisions to EPA?

    Section 110(k) of the CAA addresses our actions on submissions of 
revisions to a SIP. The CAA requires states to observe certain 
procedural requirements in developing SIP revisions for submittal to 
us. Section 110(a)(2) of the CAA requires that each SIP revision be 
adopted after reasonable notice and public hearing. This must occur 
prior to the revision being submitted by a state to us.
    With regard to the prior June 18, 2009 revisions to Regulation No. 
10, the Colorado Air Quality Control Commission (AQCC) held a public 
hearing for those revisions on November 20, 2008. There were no public 
comments. The AQCC adopted the revisions to Regulation No. 10 directly 
after the hearing. This SIP revision became state effective on December 
30, 2008, and was submitted by James B. Martin, on behalf of the 
Governor, to us on June 18, 2009.
    For the May 11, 2012 revisions to Regulation No. 10, the AQCC held 
a public hearing for those revisions on December 15, 2011. There were 
no public comments. The AQCC adopted the revisions to Regulation No. 10 
directly after the hearing. This SIP revision became state effective on 
January 30, 2012 and was submitted by Christopher E. Urbina, on behalf 
of the Governor, to us on May 11, 2012.
    We have evaluated the Governor's May 11, 2012 submittal for 
Regulation No. 10 and have determined that the State met the 
requirements for reasonable notice and public hearing under section 
110(a)(2) of the CAA. By operation of law under section 110(k)(1)(B) of 
the CAA, the Governor's May 11, 2012 submittal was deemed complete on 
November 11, 2012.

IV. EPA's Evaluation of the State's May 11, 2012 Submittal

    EPA has reviewed the revisions to Regulation No. 10, which is 
Colorado's Transportation Conformity Consultation (Conformity SIP) 
element of the SIP, that were submitted by the Governor on May 11, 2012 
and we have found that our approval is warranted. We reviewed the 
State's submittal for consistency with the conformity requirements in 
40 CFR 51.390(b), that establish the requirements for conformity 
consultation SIPs, and with the conformity requirements in 40 CFR 
sections 93.105, 93.122(a)(4)(ii), and 93.125(c).2 3 We also 
consulted our document ``Guidance for Developing Transportation 
Conformity State Implementation Plans (SIPs)'', EPA-420-B-09-001, dated 
January, 2009.\4\
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    \2\ ``40 CFR 93 Transportation Conformity Rule PM2.5 
and PM10 Amendments; Final Rule'', March 24, 2010, 75 FR 
14260.
    \3\ ``40 CFR 93 Transportation Conformity Rule Restructuring 
Amendments; Final Rule'', March 14, 2012, 77 FR 14979.
    \4\ See: http://www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf.
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    Our review and conclusions regarding the revisions to Regulation 
No. 10 are detailed in a memorandum in the docket and include the 
following:
    (a) Section I ``Requirement to comply with the Federal rule''. EPA 
has reviewed and finds satisfactory the revisions to section I of 
Regulation No. 10. Section I states that the consultation procedures 
described in section III address the requirements in 40 CFR 93.105(a) 
through (e), that the provisions in section IV address the requirements 
in 40 CFR 93.122(a)(4)(ii), and that the provisions in section V 
address the requirements in 40 CFR 93.125(c).
    (b) Section II ``Definitions''. EPA has reviewed and finds 
acceptable the revisions and clarifications that the State made to 
several definitions in section II of Regulation No. 10.
    (c) Section III ``Interagency Consultation''. For section III we 
note that 40 CFR 51.390(b) provides that each state is required to 
address three specific sections in EPA's transportation

[[Page 67329]]

conformity rule in 40 CFR Part 93, Subpart A. The relevant provisions 
that are required to be addressed are: 93.105 (Consultation), 
93.122(a)(4)(ii) (Procedures for determining regional transportation-
related emissions), and 93.125(c) (Enforceability of design concept and 
scope and project-level mitigation and control measures). The following 
is a summary of the key aspects of Regulation No. 10 to address the 
above requirements, with our evaluation and conclusion of each:
    (1) 40 CFR 93.105, ``Consultation,'' contains five subsections, (a) 
through (e). In summary, the general provisions of 93.105(a) state that 
a conformity SIP shall include procedures for interagency consultation, 
conflict resolution, and public consultation. Subsection 93.105(b) 
provides general requirements and factors for well defined interagency 
consultation procedures in the implementation plan. Organizations such 
as metropolitan planning organizations (MPO), state and local air 
quality planning agencies, and state and local transportation agencies 
with responsibilities for developing, submitting or implementing 
provisions of an implementation plan must consult with each other. 
These organizations must also consult with local or regional offices of 
EPA, the Federal Highway Administration (FHWA), and the Federal Transit 
Administration (FTA). The provisions of 93.105(c) detail specific 
processes that must be addressed in interagency consultation 
procedures. The provisions of 93.105(d) require specific procedures for 
resolving conflicts, and the provisions of 93.105(e) require specific 
public consultation procedures.
    EPA has concluded that the above requirements are satisfactorily 
addressed in the revisions to Regulation No. 10 in section III 
``Interagency Consultation'' which includes; section III.A ``Roles and 
Responsibilities for Transportation Conformity Determinations and 
Related SIP Development'', section III.B ``Establishing a Forum for 
Regional Conformity Consultation'', section III.C ``Topics for 
Consultation'', section III.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 93.122'', 
section III.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'', section 
III.F ``Consultation procedures for development of State Implementation 
Plans'', section III.G ``Agreements further describing consultation 
procedures'', and section III.H ``Review of Conformity Determinations 
by the public, Air Quality Control Commission, and resolution of 
conflicts''.
    (2) 40 CFR 93.122(a)(4)(ii) requires enforceable written 
commitments for emission reduction credits. Emissions reduction credits 
from any control measures that are not included in the transportation 
plan and TIP, and 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 for 
implementation from the appropriate entities. EPA has concluded that 
this requirement is satisfactorily addressed in section IV ``Emission 
reduction credit for certain control measures'' of Regulation No. 10.
    (3) 40 CFR 93.125(c) addresses the enforceability of design concept 
and scope and project-level mitigation and control measures. Before a 
conformity determination is made, written commitments must be obtained 
for any project-level mitigation or control measures. EPA has concluded 
that this requirement is satisfactorily addressed in section V 
``Enforceability of design concept and scope and project-level 
mitigation and control measures'' of Regulation No. 10.
    (d) Section VI ``Statements of Basis, Specific Statutory Authority, 
and Purpose''. EPA notes this section VI in the State's regulation 
merely provides information for the State regarding the SIP revision 
and is not necessary for an approvable Transportation Conformity 
Consultation SIP element revision whose purpose is to meet the 
requirements of CAA section 176(c)(4)(E) and 40 CFR 51.390. Therefore, 
EPA is not taking any action on this section.
    (e) The May 11, 2012 revision removes former Part A, ``Determining 
Conformity of General Federal Actions to State or Federal 
Implementation Plans,'' from the SIP. After amendments to 40 CFR 51.851 
that EPA promulgated on April 5, 2010 (75 FR 17254), provisions 
governing general conformity are now an optional component of a SIP. 
The State's removal of Part A is thus consistent with the 2010 
amendments. With the removal of Part A from the SIP, the federal rules 
in Subpart B of 40 CFR Part 93 will directly govern conformity of 
general federal actions.

V. Consideration of Section 110(1) of the Clean Air Act

    Section 110(1) of the CAA states that a SIP revision cannot be 
approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
towards attainment of a NAAQS or any other applicable requirement of 
the CAA. EPA has concluded that the above-described revisions to 
Regulation No. 10 will not interfere with attainment, reasonable 
further progress, or any other applicable requirement of the CAA.

VI. Proposed Action

    EPA is proposing approval of the May 11, 2012 SIP revision that was 
submitted by Christopher E. Urbina, Executive Director of the Colorado 
Department of Public Health and Environment, and on behalf of the 
Governor of the State of Colorado. The May 11, 2012 revision updates 
sections I, II, III, IV, V of Regulation Number 10 ``Criteria for 
Analysis of Conformity'' of the Colorado SIP so as to meet the federal 
transportation conformity consultation requirements under section 176 
of the CAA and 40 CFR 51.390(b), 40 CFR 93.105(a) through (e), 40 CFR 
93.122(a)(4)(ii), and 40 CFR 93.125(c). EPA also proposes to approve 
the removal of former Part A, ``Determining Conformity of General 
Federal Actions to State or Federal Implementation Plans,'' from the 
SIP. EPA notes that revisions were also made to Colorado's Regulation 
Number 10, section VI ``Statements of Basis, Specific Statutory 
Authority, and Purpose''; however, EPA is not taking any action on the 
revisions to this section.

VII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:

[[Page 67330]]

     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, and Volatile organic 
compounds.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: October 28, 2013.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2013-27030 Filed 11-8-13; 8:45 am]
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