[Federal Register Volume 79, Number 42 (Tuesday, March 4, 2014)]
[Rules and Regulations]
[Pages 12079-12082]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-04323]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-0AR-2011-0562; FRL-9905-67-Region 8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is approving 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 approving the 
submission in accordance with the requirements of the Clean Air Act 
(CAA).

DATES: This final rule is effective April 3, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2011-0562. 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., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the Air 
Program, Environmental Protection Agency (EPA), 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. Background
II. What is the State's process to submit SIP revisions to EPA?
III. EPA's Evaluation of the State's May 11, 2012 Submittal
IV. Consideration of Section 110(l) of the Clean Air Act
V. Final Action
VI. 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. Background

    EPA is approving 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\
---------------------------------------------------------------------------

    \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.

---------------------------------------------------------------------------

[[Page 12080]]

    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 initially 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).
    Our November 12, 2013 notice of proposed rulemaking (78 FR 67327) 
invited comment on our proposal and provided a 30-day comment period. 
The comment period ended on December 12, 2013. We did not receive any 
comments. Accordingly, we are finalizing our actions as proposed.

II. 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.

III. 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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 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

[[Page 12081]]

``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.

IV. 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.

V. Final Action

    EPA is approving 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 is also approving 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. EPA's approval of the State's May 11, 2012 revisions to 
Regulation Number 10 eliminates the need for EPA to take action on the 
State's June 18, 2009 revisions to Regulation Number 10.

VI. 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:
     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

[[Page 12082]]

located in the state, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by May 5, 2014. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See CAA section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, and Volatile Organic Compounds.


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

    Dated: January 8, 2014.
Howard M. Cantor,
Acting Regional Administrator, Region 8.

    For the reason stated in the preamble, the Environmental Protection 
Agency amends 40 CFR Part 52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart G--Colorado

0
2. Amend Sec.  52.320 by revising paragraph (c)(92) to read as follows:


Sec.  52.320  Identification of plan.

* * * * *
    (c) * * *
    (92) On May 11, 2012, Colorado submitted a revision to its State 
Implementation Plan (SIP) that addresses updates to Colorado's 
Regulation Number 10, Criteria for Analysis of Conformity, of the 
Colorado SIP. EPA is approving the May 11, 2012 revisions to Regulation 
No. 10 that update sections I, II, III, IV, and V so as to meet federal 
transportation conformity consultation requirements. EPA is also 
approving the removal of former Part A, Determining Conformity of 
General Federal Actions to State or Federal Implementation Plans, from 
the SIP.
    (i) Incorporation by reference.
    (A) Colorado's Regulation Number 10, Criteria for Analysis of 
Conformity, except section VI, Statements of Basis, Specific Statutory 
Authority, and Purpose, as adopted by the Colorado Air Quality Control 
Commission on December 15, 2011 and state effective on January 30, 
2012.
* * * * *
[FR Doc. 2014-04323 Filed 3-3-14; 8:45 am]
BILLING CODE 6560-50-P