[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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