Ref: 8P-AR Date: October 18,2013UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 8 1595 Wynkoop Street DENVER, CO 80202-1129 Phone 800-227-8917 http:1/www.epa.gov /region08



### SUBJECT: Memorandum to Docket No. EPA-R08-0AR- 2011-0562: EPA's evaluation of Colorado's Regulation No. 10 "Criteria for Analysis ofConformity" as submitted to EPA as a State Implementation Plan (SIP) revision on May 11, 2012. In reviewing the State's May 11,2012 SIP revisions to Colorado's Regulation No. 10, EPA consulted our "Transportation Conformity State Implementation Plans" guidance located at: http://www.epa.gov

### Iotaq/stateresources/transconf /policy.htm
State Implementation Plans (SIPs) and Conformity

• Guidance for Developing Transportation Conformity State Implementation Plans (PDF) (31 pp, 277K, EPA420-B-09-001, January 2009) This document provides guidance on the statutory and regulatory requirements for states to develop conformity state implementation plans. This document supersedes the November 2004 Conformity SIP Guidance and Section 7 of the Interim Guidance for Implementing the Transportation Conformity Provisions in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (February 2006). Checklist for Developing a Conformity SIP (PDF)- Appendix A (6 pp, 11 SK) 

### A.) Our review also included a comparison ofthe State's Regulation No. 10 contents to our above referenced "Checklist for Developing a Conformity SIP". Our analysis is as provided below: 1.) 

### INTERAGENCY CONSULTATION a.) GENERAL: [93.105(a)]. A conformity SIP shall include procedures for interagency consultation, conflict resolution, and public consultation. EPA encourages development of extensive, effective consultation procedures that will resolve problems as early in the process as possible. See 58 FR 62188 at 62201, November 24, 1993. The procedures must be written in a manner that gives them full legal effect. See 40 CFR 51.390. Consultation is required on the development ofthe regional transportation plan (RTP), the transportation improvement program (TIP), on conformity determinations, and on the development ofstate implementation plan (SIP) revisions that affect transportation. [93.105(a)(1)].MPOs and State departments oftransportation must provide reasonable opportunity for consultation with State air agencies, local air quality and transportation agencies, DOT, and EPA, including consultation on specific processes for interagency consultation

. [93.105(a)(2)] EPA Response: Aspects ofthese provisions are provided in Regulation No. 10 in section III "Interagency Consultation". b.) INTERAGENCY CONSULTATION PROCEDURES: GENERAL FACTORS [93.105(b)]. States shall provide well defined consultation procedures in the implementation plan. Organizations with responsibilities for developing, submitting or implementing provisions ofan implementation plan (including MPOs, State and local air quality planning agencies, and State and local transportation agencies) must consult with each other with and local or regional offices ofEPA, the Federal Highway Administration (FHWA), and the Federal Transit Administration (FTA). The interagency consultation procedures must include, at a minimum, the following general factors:

• Procedures that require that agencies consult on the development ofthe implementation plan, the transportation plan, the TIP, and associated conformity determinations [93.105(b)(1)]; • The roles and responsibilities ofeach agency at each stage in the SIP development process and the transportation planning process, including technical meetings [93.105(b)(2)(i)] ; • The organizational level ofregular consultation [93.105(b)(2)(ii)] ; • A process for circulating (or providing ready access to) draft documents and supporting materials for comment before formal adoption or publication [93.105(b)(2)(iii)]; • The frequency of , or process for convening, consultation meetings and responsibility for establishing meeting agendas [93 .1 05(b)(2)(iv)]; • A process for responding to significant comme!lts ofinvolved agencies [93.105(b)(2)(v)] ; and • A process for the development ofa list ofthe transportation control measures (TCMs) that are in the applicable implementation plan [93

. 105(b)(2)(vi)]. EPA Response: Aspects ofthese provisions are provided in Regulation No. 10 in sections: II "Definitions", III.A "Roles and Responsibilities for Transportation Conformity Determinations and Related SIP Development", and III.B. "Establishing a Forum for Regional Conformity Consultation". c.) SPECIFIC PROCESSES Interagency consultation procedures shall include the specific processes listed below [93 .105(c)]: A process involving at least the MPO(s), State and local air quality planning and transportation agencies, EPA, and the Department ofTransportation (DOT) for the following [93.105(c)(1)] :

• Evaluating and choosing models and associated methods and assumptions for hot-spot and regional emissions analyses [93.105(c)(1)(i)]; • Determining which minor arterials and other projects are "regionally significant"for the regional emissions analysis (in addition to those functionally classified as principal arterials or higher or fixed guide way systems or extensions that offer an alternative to regional highway travel) [93.105(c)(1 )(ii)]; 2• Determining which projects should be considered to have a significant change in design concept and scope from the RTP or TIP [93.105(c)(1)(ii)]; • Evaluating whether otherwise exempt projects (see 93.126 and 93.127) should be treated as nonexempt where adverse impacts are possible for any reason [93.105(c)(l)(iii)]; • Determining whether past obstacles to implementation oftransportation control measures (TCMs) in approved SIPs have been identified and are being overcome (for TCMs behind SIP schedules) [93.105(c)(l)(iv); 93.113(c)(1)]; • Determining whether State and local agencies are giving maximum priority to approval and funding for TCMs in approved SIPs [93.105(c)(l)(iv)]; • Determining whether delays in the implementation ofapproved SIP TCMs necessitate revisions to the SIP to remove or substitute such TCMs or other emission reduction measures [93.105(c)(1 )(iv)]; • Notification oftransportation plan and TIP amendments which only add or delete exempt projects listed in 93.126 and 93.127 [93.105(c)(l)(v)]; and • Choosing conformity tests and methodologies for isolated rural nonattainment and maintenance areas, as required by 93.109(1)(2)(iii) [93.105(c)(1)(vi)]. 

### EPA Response: Aspects ofthese provisions are provided in Regulation No. 10 in sections: III.A "Roles and Responsibilities for Transportation Conformity Determinations and Related SIP Development", III.B "Establishing a Forum for Regional Conformity Consultation", and III.C "Topics for Consultation". d.) A process involving at least the MPO and State and local air and transportation agencies for [93.105(c)(2)]:

• Evaluating events that will trigger new conformity determinations in addition to those required by 93.104 [93.105(c)(2)(i)]; and • Consulting on emissions analysis for transportation activities which cross borders ofMPOs, nonattainment areas or air basins [93.105( c)(2)(ii)]. • Where the metropolitan planning area does not include the entire nonattainment or maintenance area, procedures must specify a process involving the MPO and the State DOT for cooperative planning and analysis for determining conformity ofprojects outside the metropolitan area and within the nonattainment or maintenance area [93.105(c)(3)]. • Specifies a process to ensure disclosure ofplans for regionally significant non-FHWNFTA projects (including projects for which alternatives are still being considered) to the MPO on a regular basis, and immediate disclosure ofany changes to those plans [93.105(c)(4)]. • Provides a process involving the MPO and other federal funds recipients for assuming project location and design concept /scope where these features not adequately defined for regional emissions analysis [93.105(c)(5)]. • Specifies a process for consulting on design, schedule, and funding ofresearch and data collection efforts and regional transportation model development by the MPO [93.105(c)(6)]. • Specifies a process for providing final documents and supporting information to each agency (including federal agencies) after approval or adoption [93.105(c)(7)]. 

### EPA Response: Aspects ofthese provisions are provided in Regulation No. 10 in sections: III.B "Establishing a Forum for Regional Conformity Consultation", III.C "Topics for Consultation", 3

### III.D "Process for assuming the location and design concept and scope ofprojects disclosed to the MPO as required by paragraph (E) ofthis section, but whose sponsors have not yet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of40 CFR 93.122", III.E "Process to ensure that plans for construction ofregionally significant projects which are not FHW AIFTA projects (including projects for which alternative locations, design concept and scope, or the no-build options are still being considered), including those by recipients offunds 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", III.F "Consultation procedures for development ofState Implementation Plans", and III.G "Agreements further describing consultation procedures". Currently, the situations described in 40 CFR 93.105(c)(2)(ii) and 93.105(c)(3) only exist within the Metro-Denver/North Front Range 8-hour ozone nonattainment area. Specific procedures that meet the requirements of40 CFR 93.105(c)(2)(ii) and 93.105(c)(3) are provided in the EPA-approved Ozone Action Plan as described in detail in section (C) below. e.) RESOLVING CONFLICTS [93.105(d)]. The process for resolving conflicts must**sp~cify** that:

• Unresolveable conflicts among state agencies or between state agencies and an MPO shall be escalated to the Governor or Governors designee (the designee cannot be the State or local air agency, State department oftransportation, State transportation commission or board, or an MPO) [93.105(d)]; • The State air agency has 14 calendar days (the implementation plan should define the procedures for starting the 14-day clock) to appeal to the Governor after the State DOT or MPO has notified the State air agency head ofthe resolution ofhis or her comments [93.105(d)]; and • Ifthe State air agency appeals to the Governor, the final conformity determination must have Governors concurrence. Ifthere is no appeal, the MPO or state DOT may proceed with the final conformity determination [93.105(d)]. 

### EPA Response: Aspects ofthese provisions are provided in Regulation No. 10 in section III.H "Review ofConformity Determinations by the public, the Air Quality Control Commission, and resolution ofconflicts". f.) PUBLIC CONSULTATION PROCEDURES. Affected agencies making conformity determinations on transportation plans, TIPs, and projects shall establish a proactive public involvement process [93.105(e)]. This general requirement can be satisfied by referencing the MPO's procedures, in addition to specifying or referencing the additional items listed below. Consultation procedures must set out a public process that, at a minimum:

• Provides for reasonable public access to technical and policy information considered by the agency at the beginning ofthe public comment period and prior to taking formal action on a transportation plan or TIP conformity determination, consistent with 93.105 and 23 CFR 450

.316(a) [93.105(e)];
4• Ensures that any charges imposed for public inspection or copying are reasonable [49 CFR 7.43 , 93.105(e)]; • Provides that agencies must specifically address in writing all public comments that plans for regionally significant non-FHWA/FTA projects are not properly reflected in the emissions analysis [93.105(e)]; and • Provides opportunity for public involvement in project conformity determinations as otherwise required by law [93.105(e)]. 

### EPA Response: Aspects ofthese provisions are provided in Regulation No. 10 in section III.H "Review ofConformity Determinations by the public, the Air Quality Control Commission, and resolution ofconflicts". 2.) 

### OTHER CONFORMITY PROCEDURES: Under Clean Air Act, as amended by SAFETEA-LU, conformity SIPs must also include conformity procedures that address 40 CFR 93.122(a)(4)(ii) and 93 .125(c). All · other federal conformity regulations apply automatically and states are not required to address them in conformity SIPs. 

### EPA Response: Noted. 3.) ENFORCEABLE WRITTEN COMMITMENTS REQUIRED FOREMISSIONS REDUCTION CREDIT: Emissions reduction credit from any 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 [93.122(a)(4)(ii)]

. 

### EPA Response: Aspects ofthese provisions are provided in Regulation No. 10 in section IV "Emission reduction credit for certain control measures". 4.) 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. [93.125(c)] 

### EPA Response: Aspects ofthese provisions are provided in Regulation No. 10 in section V "Enforceability ofdesign concept and scope and project-level mitigation and control measures". B.) EPA noted minor, non-substantive typographical errors and an incorrect reference in Regulation No. 10: 1.) 

### Non-substantive typographical errors: a.) Page 3 ofRegulation No. 10, section III.A.2 containsa reference to section IV.H. The correct reference is to section III

.H

. b.) Page 3 ofRegulation No

. 10, section III.A.3 contains a reference to section IV.G. The correct reference is to section III.G. c.) Page 5 ofRegulation No. 10, section III.B.l.a contains a reference to section IV.B.l.b. The correct 

### 5reference is to section III.B.1.b. d.) Page 6 ofRegulation No. 10, section III.C.l.b(2) contains a reference to section IV.E. The correct reference is to section III.E. e.) Page 11 ofRegulation No. 10, section III.F.3 contains a reference to section IV.F. The correct reference is to section III.F. 2.) Incorrect reference: Page 8 ofRegulationNo. 10, section III.C.l.g refers to 40 CFR 93.109(1). EPA revised 40 CFR 93 , Subpart A on March 14, 2012 (see 77 FR 14979). The final rule was entitled

"Transportation Conformity Rule Restructuring Amendments" and this rule revised EPA' s transportation conformity rule which, among other changes, resulted in 40 CFR 93.109(1) becoming 40 CFR 93

. 109(g). C.) Existing procedures for the Metro-Denver/North Front Range 8-hour ozone nonattainment area: The requirements of40 CFR40 CFR 93.105(c)(2)(ii) are addressed by section III.C.2.b ofRegulationNo. 10, which reads as follows:

"III.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 ofMPOs or nonattainment areas or air basins." For the Metro-Denver/North Front Range 8-hour ozone nonattainment area, the specific consultation procedure is provided in: "CHAPTER VI: VOC AND NOx MOTOR VEHICLE EMISSIONS BUDGETS" ofthe "Denver Metro Area & North Front Range Ozone Action Plan; Including Revisions to the State Implementation Plan (Approved by: Colorado Air Quality Control Commission December 12, 2008)" as approved by EPA on August 5, 2011 (76 FR47443). The Ozone Action Plan full text is available at: http://www.colorado.gov/cs/Satellite?blobcol=urldata&blobheademame1 =ContentDisposition&blobheademame2=ContentType&blobheadervalue1 =inline%3B+filename% 3D%220zone+Action+Plan+2008.pdf0/o22&blobheader value2=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere= 1251808867302&ssbinar y=true In addition, the reader should also refer to the March 14, 2008 Memorandum ofAgreement (MOA) that accompanied the Ozone Action Plan which is entitled:

"MEMORANDUM OF AGREEMENT FOR TRANSPORTATION CONFORMITY EVALUATIONS CONDUCTED UNDER THE 8-HOUR OZONE STANDARD BY AND BETWEEN THE COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT, THE DENVER REGIONAL AIR QUALITY COUNCIL, THE COLORADO DEPARTMENT OF TRANSPORTATION, THE UPPER 6FRONT RANGE TRANSPORTATION PLANNING REGION, THE NORTH FRONT RANGE TRANSPORTATION AND AIR QUALITY PLANNING COUNCIL (a.k.a. the North Front Range MPO), AND THE DENVER REGIONAL COUNCIL OF GOVERNMENTS" (This document is available from the Denver Regional Council ofGovernments

- DRCOG- at http://www.DRCOG.org) The Metro-Denver/North Front Range 8-hour ozone nonattainment area specific consultation procedure is excerpted, inpart, from the Ozone Action Plan and is provided below: CHAPTER VI VOC AND NOx MOTOR VEHICLE EMISSIONS BUDGETS A. Transportation Conformity Transportation conformity provisions ofsection 176 (c)(2)(A) ofthe Clean Air Act (CAA) require regional transportation plans and transportation improvement programs to demonstrate that "

...emissions expected from implementation ofplans and programs are consistent with estimates of emissions from motor vehicles and necessary emissions reductions contained in the applicable implementation plan

.. ." The Environmental Protection Agency' s (EPA) transportation conformity rule requires that control strategy implementation plans, which are defined in 40 CFR 93.101 as reasonable further progress plans and attainment demonstrations, contain motor vehicle emissions budgets. Because this State Implementation Plan (SIP) is an 8-hour ozone attainment demonstration, motor vehicle emissions budgets for volatile organic compounds (VOC) and nitrogen oxides (NOx) are proposed for 2010, which is the area's attainment year. Once these budgets are found adequate or are approved, the metropolitan planning organizations (MPOs) in the nonattainment area will use the budgets to demonstrate that projected emissions that would result from implementation oftheir transportation plans and transportation improvement programs are less than or equal to the adequate or approved emissions budgets. The 8-hour ozone nonattainment area encompasses multiple MPOs and transportation planning regions

. The Denver Regional Council ofGovernments (DRCOG) is the metropolitan planning organization responsible for transportation planning in the 7-county Denver metropolitan area and a portion of southwest Weld County. Likewise, the North Front Range Transportation and Air Quality Planning Council (NFRTAQPC) is the metropolitan planning organization responsible for transportation planning in the urbanized portions ofLarimer and Weld counties

. Finally, the Upper Front Range (UFR) Transportation Planning Region (TPR), not a designated metropolitan planning organization, is responsible for transportation planning in the rural portions ofLarimer, Weld, and Morgan counties. Because ofthe different institutional arrangements and different schedules and timelines for transportation plans and programs development, this SIP establishes both VOC and NOx subarea motor vehicle emission budgets, and budgets for VOCs and NOx for the entire nonattainment area for purposes of transportation conformity in the Denver/North Front Range 8-hour ozone nonattainment area. The two subareas are described below. Also described below are the procedures to be followed when switching between using subarea budgets and the nonattainment area-wide budgets

. B. Motor Vehicle Emissions Budgets According to EPA regulations and guidance, the SIP may establish a budget or budgets that apply to the entire nonattainment area, and/or subarea budgets for each metropolitan planning 7organization or subarea within the nonattainment area. For purposes ofthis SIP, Motor Vehicle Emissions Budgets for VOC and NOx are established for the 2010 attainment year. Budgets are specifically established for two sub

-regional areas and for the entire nonattainment area for purposes of transportation conformity. The two subareas are defined as follows and shown in Figure 2:

• Southern Subarea--Area denoted by the ozone nonattainment area south ofthe Boulder County northern boundary and extended through southern Weld County to the Morgan County line. This area includes the nonattainment portion ofDRCOG's' regional planning area and the southern Weld County portion ofthe Upper Front Range TPR

.

• Northern Subarea--Area denoted by the ozone nonattainment area north ofthe Boulder County northern boundary and extended through southern Weld County to the Morgan County line

. This area includes the North Front Range Transportation and Air Quality Planning Council transportation planning area as well as the northern ozone nonattainment area portion the Upper Front Range TPR in Larimer and Weld counties. 

### Figure 2: 8-Hou r Ozone Emission Budget Subarea

8