# STATE OF COLORADO

John W. Hickenlooper, Governor Christopher E. Urbina, MD, MPH, Executive Director and ChiefMedical Officer 

### COLORADOAIR QUALITY CONTROLCOMMISSION http://www.cdphe.state.co.us 4300 Cherry Creek Drive South OED-OLRA-A5 Denver, Colorado 80246-1530 Phone (303) 692-3100 Fax (303) 691-7702 TDD (303) 691-7700



### May 11,2012

James B. 

### Martin Regional Administrator US EPA Region VIII 1595 Wynkoop Street Denver, Colorado 80202
DearMr. Martin: RECEIVED U.S. EPA Region 8 

### RA'sOffioe 

# MAY 

# 16 2012 Colorado Department ofPublic Health and Environment



### The following action is submittedto EPA for final approval and incorporationinto the Colorado State Implementation Plan (SIP) pursuantto 40 CFRPart 51, Appendix V, 2.l(a). One hard copy and a CD ofthe materials needed for yourreview ofeach action are included with this letter.

• RegulationNumber 10 andthe Procedural Rules- The Commission adoptedrevisions that significantly streamline the process for "routine" conformity determinations by allowing the Colorado Air PollutionControl Division (Division) to provide concurrence withroutine transportation conformity determinations without the needfor a public hearing before the AQCC. Ifa conformity determination is non-routine because of project size ordue to unresolved air quality issues and/or lack ofagency agreement regarding a conformity determination, the Division or otherparties couldrequest thatthe Commissionconduct apublic hearing and eitherresolve matters or escalatethem to the Governor.
We look forward to your timelyreview and approval ofthis request. The Office ofthe Colorado Air Quality Control Commissionmay submit any additional technical support documentation orinformationthatyoumay need for review directly to the 

## EPAJames B. Martin May 

### 28,2012 Page 

### 2 of2 

### Shouldthere be any questionsregardingthese materials, please contactthe Air Quality Control Commission Office at 303-692-3478.
Thank you.
Sincerely,

ChristopherE. Urbina, MD, MPH Executive Directorand ChiefMedical Officer Colorado Department ofPublic Health and Environment

cc. Martha Rudolph Mike Silverstein MarkKomp

# Regulation Number 10 and the ProceduralRules

ADMINISTRATIVE MATERIALS
Copies ofthe following administrative materials are included inthis submittal ofrevisions to RegulationNumber 10 andthe Procedural Rules. Hearingheld onDecember 15,2011.

• HearingNotice and Proposed Language as Published inthe CCRand onthe CommissionWebsite the 40 CFR Part51 Appendix V2.1 (f) 

### • Meeting Agendawhere Public Hearing Occurred andNotice published inthe Legal Ads ofthe DenverPost40 CFR Part51 Appendix V2.1 (f) 

### • Procedural Documents ofthe Commission (this includesthe AgendaItem Control Sheet, the Memorandum ofNotice,the Economic ImpactAnalysis) • Parties Hearing Documents (this includes a listoftheparties, the parties prehearing statements andrebuttal statements, and any orders by the Commission

- - do not include all the attachments from the parties) • EPA Comments 40 CFR Part 51 Appendix V2.1(h) 

### • Public Comments 40 CFR Part51 Appendix V2.1(h) 

### • Adopted StatementofBasis, Specific StatutoryAuthority and Purpose • Adopted Language by the Commission (inredline & 

### footer noting adoption date and page numbers) • Colorado Air Quality Control CommissionMeetingMinutes 40 CFR Part 51 Appendix 

## V2.1(g) 

### • Legal Opinion ofthe Colorado State Attorney General 40 CFR Part51 Appendix V 2.1(c) and(e) • Regulation or Regulation Revisions as published inthe Colorado Code ofRegulations (this is the versionthat is publishedby LexisNexis) 40 CFR Part 51 Appendix V 2.1(b)

# HearingNotice andProposedLanguage as Published inthe CCR
40 CFR Part51 Appendix V2.1(f) 

# RegulationNumber 10

# STATE OF COLORADO

John W. Hickenlooper, Governor Christopher E. Urbina, MD, MPH, Executive Director and ChiefMedical Officer
Dedicated toprotecting and improving the health and environment ofthepeople ofColorado 

### COLORADOAIR QUALITY CONTROLCOMMISSION http://www.cdphe.state.co.us 4300 Cherry Creek Drive South, EDO-AQCC-A5 Denver, Colorado 80246-1530 Phone (303) 692-3100 Fax (303) 691-7702 TDD (303) 691-7700 Colorado Department ofPublic Health and Environment 

## NOTICE OFPUBLIC RULEMAKING HEARING BEFORETHE COLORADOAIR QUALITYCONTROLCOMMISSION Regarding proposed revisions to: 

## Regulation Number 10 and the ProceduralRules Regulation
SUBJECT: The Air Quality Control Commissionwill hold arulemaking hearingto consider streamliningthe transportation conformityprocess by allowingthe Colorado Air PollutionControl Divisionto provide concurrence withroutine transportation conformity determinations withoutthe need for apublic hearing before the Colorado Air Quality Control Commission. This changeto the conformityprocess is allowed for under federal lawand will reduce the burden onthe AQCC, the Division andtransportationplanning organizations, while ensuringthat air quality requirements are met. The Commissionwill considerproposedrevisions to the AQCC's RegulationNumber 10 and the Procedural Rules, governing conformity determinations in Colorado. 

### HEARING SCHEDULE: DATE: December 15,2011 TIME: 9:00AM PLACE: Colorado DepartmentofPublic Health & 

### Environment 4300 Cherry Creek Drive South, Sabin Conference Room Denver, Colorado 80246
The hearingmay be continuedatsuchplacesandtime as the Commission mayannounce. Interested

parties maycontact the Commission Office at303-692-3476to confirm meetingdates andtimes. 

### PUBLIC COMMENT: The Commission encourages all interestedpersonsto providetheir views either orally at the hearing or in writing priorto or at the hearing. The Commission especially solicits comments and analyses from persons who will incur directly some cost orbenefit from the proposed revisions. Public testimony will be taken as close to the start ofthe hearing as possible and during the hearing as necessary. Written and/or electronic submissions are requested, but not required to be submittedpriorto the hearingto allowreview priorto presentation atthe hearing. Written and/or electronic submissions should be mailed to the Commission Office at least 14 days priorto the hearing. Page 1of3

### PARTY STATUS: In orderto obtainparty status atthe hearing, compliancewith several requirements as defined in the CommissionsProcedural Rules is necessary. A petition for party status mustbe filed by electronic mail with the Office ofthe Air Quality Control Commissionno laterthan close of business on October 18, 2011. The petitionmust: 

### 1) identify the applicant; 2)provide the name, address, telephone andfacsimile numbers, andemailaddress of the applicants representative; and3) brieflysummarize what, 

## if any, policy,factual, andlegal issues the applicanthas with the proposal(s) as of the time of filing the application. Electronicallymailed copies must also be received, by this same date, bythe Division staffperson andthe Assistant Attorneys General representing the Division andthe Commission identifiedbelow. Any personmay petitionthe Commissionto file documents inpapercopyformat ifthey are unable for any reasonto complywith the requirements of 1.3.8(2) ofthe Commission's Procedural Rules. Anoriginal and a specifiednumberofpapercopies mustbe filed inthe Office oftheAir Quality Control Commission, Colorado DepartmentofPublic Health and Environment, 4300 Cherry CreekDrive South, Denver, Colorado 80246. Individuals may also obtainparty status throughthe submittal ofan initial alternativerule to the proposedrule. The submittal ofan alternativeproposal mustbe accompaniedby an electronic copy ofthe initial alternative proposedrule and all other associated documents as required bythe Commission's procedural rules and mustbe filed by electronic mail withthe Office ofthe Commissionbythe date specified for party status requests. Initial alternativerules must also be filed by electronic mail with the Division staffperson and with eachofthe Assistant Attorneys General. Theresa L. 

### Martin Air Quality Control Commission 4300 Cherry Creek Drive South, EDO-AQCC-A5 Denver, CO 80246 Theresa.Martin@state.co.us Attorney for theCommission Andrea Gelfuso-Goetz Attorney General's Office 1525 Sherman Street, 7th 

### Floor Denver, CO 80203 Andrea.Goetz@state.co.us Lisa Silva Air Pollution Control Division 4300 Cherry Creek Drive South, APCD-B1 Denver, CO 80246 Lisa.Silva@state.co.us Attorneys for theDivision Tom Roan Attorney General's Office 1525 Sherman Street, 7th

### Floor Denver, CO 80203 Tom.Roan@state.co.us Requests received beyondthe above stated deadline shall onlybe consideredupon a written motion for good cause shown. The Commissionreserves the rightto denyparty statusto anyone that does not comply withthe Commission'sprocedural rules.
STATUS CONFERENCE: A status conference will be held October25, 2011 at 1:00p.m., at the DepartmentofPublic Health and Environmentto ascertain and discuss the issues involved, and to ensure thatparties are making all necessary effortsto discuss andresolve such issues priorto the submission of prehearing statements. Attendance at this status conference is mandatoryfor anyone who has requested party status.

Page 2 of3

### PREHEARING CONFERENCE/PREHEARING STATEMENTS: 

### Attendance at the prehearing conference is mandatory for all partiesto this hearing. A prehearing conference will be held November22, 2011 at 1:00 p.m. 

### in the Commission Offices at 4300 Cherry CreekDrive South, Denver. Allpartiesmust submitby electronic mail a prehearing statementto the Commission Office by close ofbusiness November 15,2011. 

### In addition, electronically mailed copies ofthese documents mustbe deliveredbythat date to all persons who have requested party status. A copy ofthe prehearing statementmust also be electronically mailedto the Divisionpoint ofcontact and each ofthe AssistantAttorneys General identified above byclose ofbusiness November 15, 2011. 

### Any revisions to the prehearing statementmustbe submittedto the Administrator ofthe Commission atthe prehearing conference and by electronic mail to the Commission Office on the day ofthe prehearing conference. Any exhibitincluded inthe prehearing statements will be electronically mailed to individual Commissioners for reviewpriorto the hearing, providedtheparty files electronic copies ofsuch exhibit. Rebuttals to the prehearing statementmaybe submittedto the Commission Office and all otherparties byclose ofbusiness November29,2011.
EXCEPTIONS TO FILE DOCUMENTSBYELECTRONIC MAIL: 

### The Commission's Procedural Rules provide for an exceptionto file documents by electronic mail. Ifgranted an exceptionto electronic filing pursuantto the provisions of 1.3.8(3) ofthe Commission's Procedural Rules, the applicant for party status shall file an original and fifteen copies ofthe prehearing statement inthe Office ofthe Air Quality Control Commission, and shall also deliver copiesto each otherparty, applicant for party status, the Assistant Attorneys General representing the Commission and Division, andthe Division staffperson for the proceedings, by electronic mail or as otherwise providedbythe exceptiongrantedunder Subsection 1.3.8(3), by that same day.
STATUTORYAUTHORITY FORTHE COMMISSION'SACTIONS: 

### The Commissionpromulgates these regulatory changespursuantto its authority under Section 25-7-106(3), C.R.S. to adopt regulations governingprocedures before the Commission.
The Commissionpromulgatesthese regulatory changespursuantto its authority under Section 25-7-105(l)(a)(l), C.R.S. to adopt a comprehensive state implementationplanthat meets the requirements ofthe federal CleanAirAct.
The rulemaking hearing will be conducted in accordance with Sections 24-4-103 and 25-7-110, 110.5 and 110.8 C.R.S., as applicable and amended, the Procedural Rules ofthe Commission and as otherwise stated inthis notice. This list ofstatutory authority is notintended as an exhaustive list ofthe Commission's statutory authorityto act inthis matter. Datedthis 16th day ofSeptember2011 at Denver, Colorado Colorado Air Quality Control Commission

Michael Silverstein, Administrator Page 3 of3 

# I I 

# I I f 

# I I l t 

# i

## DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT Air Quality Control Commission REGULATION NUMBER 10 CRITERIA FOR ANALYSIS OF TRANSPORTATION CONFORMITY 5 CCR 1001 12
PART A Determining Conformity ofGeneral Federal AGtions to State or Federal Implementation Plans
I. Incorporation ofthe Federal Rule The provisions ofTitle 40, Part 51, SubpartVV and Title 40, Section 6.303, ofthe Code of Federal Regulations, (July 1, 1994), promulgated by the US Environmental Protection Agency (EPA) are hereby incorporated by reference by the Air Quality Control Commission and made part ofthe Colorado Air Quality Control Commission Regulations. Materials incorporated by reference are those in existence as ofthe dates indicated and do not include later amendments. The material incorporated by reference is available for public inspection during regular business hours at the Office ofthe Commission, located at 4300 Cherry Creek Drive, South, Denver, CO 80246 1530, or may be examined at any state publications depository library. Parties '.vishing to inspectthese materials should contact the Technical Secretary ofthe Commission, located at the Office ofthe Commission.
II. Statement of Basis, Specific Statutory Authority and Purpose
II.A. October 17, 1996 

### Part A: General Conformity Background This statement of Basis, Specific Statutory Authority and Purpose complies with the requirements ofthe Administrative Procedures Act, C.R.S. 1973, Section 24 4 103(4) for adopted or modified regulation.

The EPA has promulgated rules to ensure that Federal actions conform to the appropriate State Implementation Plan (SIP). Conformityto a SIP is defined in the Clean AirAct as meaning conformity to a SIP's purpose ofeliminating or reducing the severity and numberofviolations of the National .A.mbient Air Quality Standards (NAAQS) and achieving expeditious attainment of such standards. The Federal agency responsible forthe action is required to determine if its actions conform to the applicable SIP. Colorado is required, through federal rule, to submit to EPA revisions to the SIP establishing conformity criteria and procedures consistentwith federal fUle,. Statutory Authority 

# I l 

# IThe general authority forthis regulation is contained in the Colorado Air Pollution Prevention and Control Act, Section 25 7 105(1)(a), Vlhich requires the Commission to promulgate a state implementation plan, which will assure attainment and maintenance ofthe NPAQS. This regulation incorporates the federal requirements, and does not go further than the requirements. Purpose The purpose ofthe rule is to implement Section 176(c) ofthe Clean AirAct, which requires that all federal actions conform to an applicable implementation plan developed pursuant to Section 110 and Part D ofthe Act. The Commission is incorporating the EPA rule by reference in orderto comply 'Nith the federal requirements. 

### PART B Conformity to State Implementation Plans ofTransportation Plans, Programs, and Projects Developed, Funded or Approved UnderTitle 23 U.S.C. orthe Federal Transit Act 

### h Purpose. applicability and incorporation of material by reference
I.A. The purpose ofthis Part B of Regulation Number 10 is to implement a State Implementation Plan (SIP) governing transportation conformity determinations, including the establishment ofstate specific interagency consultation procedures, and addressing the obtainment and enforceability of written commitments to certain transportation control measures and project mitigation and control measures, as required by 40 CFR, Section 51.390, as published at62 Federal Register 158 (August 15, 1997), and as amended through 73 Federal Register 4439, January 24, 2008.
I.B. This rule shall have the same applicability as 40 CFR, Part 93, as published at62 Federal Register 158 (P.ugust 15, 1997), and as amended through 73 Federal Register 4439, January 24, 2008. In general, such federal requirements apply to transportation projects, transportation improvement programs, regional transportation plans, and State Implementation Plans.
I.C. The Colorado Air Quality Control Commission hereby adopts and incorporates by reference the provisions of40 CFR, Part 93, as published at62 Federal Register 158 (August 15, 1997), and as amended through 73 Federal Register 4439, January 24, 2008. Materials incorporated by reference are those in existence as ofthe date ofthis regulation and do not include later amendments. The material incorporated by reference is available for public inspection during regular business hours atthe Office ofthe Commission, located at 4300 Cherry Creek Drive South, Denver, Colorado 80222, or may be examined at any state publications depository library. Parties wishing to inspect these materials should contact the Technical Secretary ofthe Commission, located atthe Office ofthe Commission. L-lh---Requirementto comply with the Federal rule The purpose of Regulation Number 10 is to fulfill the requirement in 40 CFR 51.390(b) to establish a SIP revision that addresses the provisions ofsections 40 CFR 93.105(a) through (e). 40 CFR 93.122(a)(4)(ii}, and 40 CFR 93.125(c) ofthe federal transportation conformity rule (see 40 CFR Part 93. SubpartA). Any person making a transportation conformity determination or adopting or approving a regionally significant project shall comply with the provisions of+itle-40 CFR, Part 93, Subpart

### A:., which rules are incorporated into 101(c) ofthis regulation by reference, except as follows:

__ _It

### .A. The interagency consultation procedures established in Section-1¥

## !!!. ofthis document specify Colorado procedures and shall apply in addition to the consultation procedures established in 40 CFR Section 93.105 (a) through (e).
ti.B. Colorado-specific provisions in Section 

## !V. ofthis documentthat require obtainment of and fulfillment ofwritten commitments to SIP control measures not included in a transportation plan orTransportation Improvement Program (TIP) shall apply, pursuantto 40 CFR Section 93.122 (a)(4)(ii). ti.C. Colorado-specific provisions in Section 

### Vt ofthis document regarding design concept and scope and enforceability ofproject-level mitigation and control measures shall apply, pursuant to 40 CFR Section 93.125 (c). 

### lit. Definitions
In addition to the Federal rule definitions incorporated bv reference, the follo•Ning terms are defined or further delineated: COOTmeans the Colorado Department ofTransportation. Commission means the Air Quality Control Commission as defined in §Section 25-7-103(7), C.R.S.
Division means The Air Pollution Control Division, pursuantto §:Section 25-7-111, C.R.S.
Hot SpotAnalvsis is an estimation of likely future localized criteria CO. PM1 0 and/or PM2.5 pollutant (or their precursor) concentrations and a comparison ofthose concentrations to the national ambient airquality standards. Federally required hot spot analyses assess impacts of pollutants on a scale smallerthan the entire nonattainmentor maintenance area. including for example. congested roadway intersections. highway portions. ortransit terminals. using air quality dispersion modeling.
LeadAirQualityPlanningAgency(LPA)- is an agency designated by Colorado's Governor. which shall be the agency that is charged, togetherwith the Division, with the duty ofdeveloping the State Implementation Plan (SIP) for any nonattainment or maintenance area. Unless otherwise appointed by the Governor, the LPA for the Denver nonattainment area shall be the Regional Air Quality Council; the LPA for the Colorado Springs nonattainment area shall be the Pikes Peak Area Council ofGovernments; the LPA for the Ft. Collins, Loveland, and Greeley nonattainment areas shall be the North Front Range Transportation and Air Quality Planning Council, also known as the North Front Range MPO. Where a nonattainment or maintenance area crosses MPO boundaries. more than one agency may serve as an LPA.. E..,.g., the 8-hour Ozone Nonattainmentarea encompassing both the Denver Regional Council ofGovernments and the North Front Range MPO, as well as non-MPO areas from the Upper Front Range Transportation Planning Region, is served the Regional Air Quality Council, the North Front Range MPO, and the APCD as lead planning agencies. The requirements ofthis rule shall 

### a1so apply to any successors ofsuch LPAs, and to any LPAthat is subsequently created for any area, orthat otherwise assumes the duties and obligations ofthe LPAs identified in this definition. The Division, in consultation with the municipal and county governmentswithin the affected nonattainment area, shall perform any duty orobligation assigned to the LPA for the Longmont nonattainment area, and for any area forwhich there is no LPA orforwhich the LPA is unwilling or unable to perform such duty orobligation.Metropolitan planning organization (MPO) is that organization designated as being responsible, togetherwith the State, for conducting the continuing, cooperative, and comprehensive planning process under23 U.S.C. 134 and 49 U.S.C. 1607. It is the lead agency for preparing transportation plans. TIPs and transportation conformity documents. and it provides a forum for cooperative transportation decision-making. Project-level Conformitv See: HotSpotAnalvsis Regional Transportation Conformityrefers to the status ofa transportation planning region's conformance to relevant State Implementation Plans (SIPs). A conforming region's transportation plans and TIPs have passed emissions tests that must indicate they are unlikely to cause. contribute to. or increase the severity and frequency offuture violations of national ambient air quality standards. Regional Conformity is demonstrated using transportation network models and air quality models and comparing projected transportation-related pollutant emissions to motor vehicle emissions budgets. orwhere budgets are not established, other emission limits for the region. To make a positive Conformity finding for a region. future emissions must not exceed certain limits, e.g., emission budgets, and transportation projects. plans and TIPs must not interfere with any transportation controle measures required by SIPs. Review Team is that group of interagency representatives who consult regarding Transportation Conformity assessment and findings, e.g., the Interagency Consultation Group (ICG)

### +eam developed by the Denver Regional Council ofGovernments. The reviewteam's responsibilities are defined in Section IV ofthis rule. Regionally Significant Projectmeans a transportation project (otherthan an exempt project*) for§. facility that serves regional transportation needs. such as access to and from the area outside the region, major activity centers in the region. major planned developments such as new retail malls. sports complexes. etc

.. ortransportation terminals aswell as mostterminals themselves) and would be included in the modeling ofa metropolitan area's transportation network. including at a minimum all principal arterial highways and all fixed guideway transit facilities that offer and alternative to regional highway travel. Forthe purposes ofthis rule. regionally significant projects include only those located in nonattainment or maintenance aras. *Exemptprojects are listedin the Federal Regulation at40 CFR Part 93. 126andPart 93. 127andinclude safetyimprovements andsigna/lightsynchronization.
Routine ConformitvDetermination generally, is one that is made fortransportation plans and, TIPs and/ortheir amendments involving: (1) Individual roadway projects adding less than two lane miles. with additional miles for all projects equaling <10 lane miles: and /or .(2) Projects with revisions to staging years only, and/or (3) Minortransit station plan revisions.Conformity Determinations for areas with Limited Maintenance Plans. which do not have emissions budgets. as such areas have been in attainmentfor 20 years or longer. would also generally be considered "routine." -Notwithstanding this general definition. the APCD at its discretion may request that any Conformity Determination be reviewed by the Commission. Transportation Control Measure (TCM) is any measure that is specifically identified and committed to in the applicable implementation plan (air quality SIP) through the process established in CAA section 176 ( c ) (8). that is either one ofthe tvpes listed in CAAsection 108. or any other measure designed to reduce emissions or concentrations ofair pollutants from transportation sources by reducing vehicle use orchanging traffic flow orcongestion conditions. Vehicle technology-based, fuel-based and maintenance-based measures. e.g., inspection and maintenance programs, are notTCM's.Transportation ImprovementProgram (TIPJ-A prioritized program oftransportation projects funded with federal transportation funds. developed under23.U.S.C. 134(j) and 23 CFR Parts 450.324 through 450.330. The TIP must be fiscally constrained. and. in air quality nonattainment and maintenance areas. the MPO. as well as FHWAand FTA mustdetermine thatthe TIP achieves Conformity Transportation Plan in the context ofthis regulation means a fiscally constrained plan prepared by a Metropolitan Planning Organization or COOT and a local government orgovernments and/or regional planning commission pursuant to 23 U.S.C. 134 and as amplified by 23 CFR part 450.322 (also referred to as a metropolitan transportation plan. regional transportation plan. or long-range transportation plan) forwhich a regional conformity determination is required. Outside of MPO's. the Colorado Department ofTransportation. along with local governments. develops regional transportation plans. The overall State Transportation Plan incorporates all ofthe regional plans. Transportation Planning Region (TPRJ is a geographic area forwhich the transportation planning process required by 23 USC 134 and 135 and Section 8 ofthe Federal TransitAct must be carried out. Per Colorado regulations (CCR 43-1-1102). a TPR is a geographically designated area ofthe state forwhich a regional transportation plan may be developed pursuant to the provisions of43-1-1102 and 1103. CRS.

I!LV. Interagency Consultation
W:-!!LA. Roles and Responsibilities forTransportation Conformity Determinations and Related SIP Development.
W:-!!LA.1. This rule sets outthe minimum requirements for interagency consultation (Federal, State, regional and local) and resolution ofconflicts. Representatives ofthe MPOs, local transit agency, the Division, the LPA and COOT shall undertake an interagency consultation process in accordance with this section with each other and with local or regional offices of EPA, FHWA, and FTA on the development ofthe implementation plan, the list ofTCMs in the applicable implementation plan, the transportation plan, the TIP, and all conformity determinations required bythis rule. The MPO shall provide notice of revisions to Conformity documents through the normal planning process. The interagency consultation process shall be used in developing or noticing shall apply to any revisions 

### e.f to the preceding §D.Y_documents that could affectTransportation .QGonformity. W:-!!LA.2. It shall be the role and responsibility ofeach agency identified as a lead agency to prepare the final documentand to ensure the adequacy ofthe interagency consultation process. Designation as a lead agency for any decision item shall mean that such agency shall be responsible for making the final decision on such decision item, exceptthat any such decision shall be subjectto the dispute resolution process set out in Section IV.H. W:-III.A.3. In each nonattainment area, COOT, the LPA, the Division, the MPO, local transit agency, and otheragencies, as appropriate, may develop a written agreement pursuant to Section IV.G. that outlines the specific roles and responsibilities ofvarious participants in the interagency consultation process for the preparation ofSIPs, transportation plans, TIPs and conformity 

# I I 

# I fdeterminations. In the absence ofsuch a written agreement, in addition to the other duties specified in this rule, the specific roles and responsibilities ofthe various participants in the interagency consultation process shall be as follows: .WIII.A.3.a. The Division shall be responsible for: (A) emissions inventories; (B) air quality modeling and/or quality-assuring airquality modeling that is performed by the MPOs orCOOT; (C) performing attainment demonstrations; (D) assisting the LPA in the development ofpollutant specific implementation plan revisions; (E) providing technical and policy inputoo regarding emission factors and emissions budgets; and (F) updating motorvehicle emissions factors

. .W!ll.A.3.b. The LPA, orthe Division ifthere is no LPA, shall: (A) develop pollutant-specific state implementation plans for submittal to the Commission; and (B) prepare emissions budgets

. .W!ll.A.3.c. The MPO shall: (A) develop transportation plans and TIPs, and shall make conformity determinations on transportation plans and TIPs within the applicable area, and shall be the lead agency for the development ofsuch plans and TIPs, and for such conformity determinations; (B) develop transportation and socioeconomic data and planning assumptions and provide such data and planning assumptions to the Division for use in air quality analysis; (C) perform transportation modeling and documentation oftimely implementation ofTCMs needed for conformity assessments and SlPdevelopment; and (D) monitor regionally significant projects, and ensure that all disclosed, or otherwise known, regionally significant projects are included in the regional emissions analysis. The MPO may: (E) provide technical and policy input on emissions budgets; (F) perform air quality modeling for transportation conformity purposes: and**(G~)** evaluate TCM impacts on transportation as needed

. .W!ll.A.3.d. COOT shall: (A) provide technical input on proposed revisions to motorvehicle emissions factors, (B) convene air quality technical review meetings on specific projects when requested by other agencies oras needed, and (C) comment on transportation control measures and other aspects ofthe SIP that may affectthe operation, construction or maintenance ofthe transportation system

. .W!ll.A.3.e. In addition to the duties and responsibilities identified in paragraph d. above, for FHWA/FTA projects located outside of metropolitan planning areas, COOT shall convene the appropriate parties to outline roles and responsibilities and coordinate efforts needed to: (A) perform the required conformity evaluation for such projects, and shall be identifythe lead agency for such evaluations; (B) provide technical and policy input on emissions budgets; (C) develop socioeconomic data and planning assumptions for use in air quality analysis to determine conformity of projects in consultation with the affected municipal and county governments and state agencies; and (D) perform transportation modeling, regional emissions analyses and documentation oftimely implementation ofTCMs needed for conformity assessments. COOT may also conduct air quality modeling pursuant to a conformity determination. COOT may via formal agreement, arrange to

### have other organizations, including MPOs perform such conformity determination tasks. W!!!.A.3.f. The Commission shall be responsible for promulgating revisions to the SIP and for determining whether a regional conformity determination should be appealed to the Governor. Wffi.B. Establishing a forum for Regional Conformity consultation Wffi.B.1. Minimum Consultation Requirements. WIII.B.1.a. The MPO shall establish and maintain a forum, herein referred to as the review team, for regular consultation. The MPO may establish a committee, or use existing committees, to perform the tasks assigned to the review team, provided the agencies identified in Subparagraph IV.B.1.b., below, have an opportunity to participate. Conference calls or written correspondence may be used to hold the meetings required by this rule upon the concurrence ofthe Division and any affected LPA. The review team shall comply with the minimum requirements set out in paragraph c. below, exceptthat, outside of metro planning areas, COOT shall perform the functions assigned to the MPO. WIII.B.1.b. The review team shall consist, at a minimum, ofthe MPO as lead agency, the local transit agency, the Division, COOT, and the LPA. In addition, the review team shall include EPA, FHWAand the FTAfor the topics identified in Subsection C.1. The agencies on the review team may appoint individual staff members, ofany organizational level, to participate in the review team. Will.B.1.c. The review team established pursuant to paragraphs a. and b. shall comply with the following minimum requirements: lll¥.-.:.B.1.c.(1) The MPO consultation process shall begin early enough for the review team to adequately review and provide meaningful input on drafttransportation plans, TIPs and conformity determinations, including supporting documents. Wffi.B.1.c.:."(2) A schedule of meetings ora process for providing adequate notice ofsubsequent meetings shall be developed as part ofthe consultation process. The schedule of meetings shall be frequent enough to address all significant issues in a timely fashion. Wffi.B.1.c.(3) The MPO shall establish an agenda for each meeting, and shall include in such agenda any issue or item upon the request ofany member. Wffi.B.1.c.(4) Any member may, at any time, request a meeting through the consultation process. Upon such a request, the MPO should schedule a meeting as soon as practicable. 

# I 

# I I 

# It¥.-!lLB.1.c.(5) The MPO shall respond in written form to written comments received from any ofthe members ofthe reviewteam copying all review team members

. .Will.C. Topics forGConsultation .Wffi.C.1. The review team shall address the following topics in the manner provided

. .Wffi.C.1.a. Evaluating and choosing a model (or models) and associated methods and assumptions to be used in regional emissions analyses. The MPO shall be responsible for selecting the transportation modeling procedures to be used within its modeling domain. The Division shall be responsible for selecting the emissions orair quality modeling procedures used for performing regional emissions analyses for conformity determinations and for SIP revisions

. .Wffi.C.1.b. Determining which minor arterials and othertransportation projects should be considered "regionally significant" for the purposes of regional emissions analysis (in addition to those functionally classified as principal arterial or higher orfixed guideway systems or extensions that offer an alternative to regional highway travel). and which projects should be considered to have a significant change in design concept and scope from the transportation plan orTIP. t¥.-!lLC.1.b.(1) The review team shall review the transportation network and identify minor arterials that serve regional transportation needs

. .Wffi.C.1.b.(2) Review the transportation projects disclosed to the MPO pursuant to Section IV.E., and all transportation projects otherwise known to the members that may be regionally significant projects, and identify as regionally significantthose projects that are on a facility which serves regional transportation needs and that would normally be included in the modeling ofthe metropolitan area's transportation network

. .Wffi.C.1.b.(3) Identify any significant changes in design concept and scope ofany project from the transportation plan, TIP, or regional emissions analysis supporting the conformity determination for a conforming TIP, upon the request ofany participant in the consultation process, or any recipient offunds designated underTitle 23 orthe Federal TransitAct with authority to adopt orapprove ofthe subject regionally significant project. .WIII.C.1.c. Evaluating whether projects otherwise exempted from meeting the requirements ofthis subpart (see 40 CFR Sections 93.126 and 93.127) should be treated as non-exempt in cases where potential emissions impacts may existfor any reason.W!!l.C.1.c.(1) Atthe request ofany participant in the consultation process, the review team shall determine whether projects otherwise exemptfrom meeting the requirements ofthis subpart should be treated as non-exempt in cases where potential emissions impacts may existfor any reason. W!!l.C.1.c.(2) For each non-attainment area that is outside ofa metropolitan planning area, COOT shall consult with the review team to identify categories ofexempt projects that should be treated as non-exemptfor such area. WIII.C.1.d. Making a determination. as required by 40 CFR Section 93.113(c)(1). whether past obstacles to implementation ofTCMs implementation which are behind the schedule established in the applicable implementation plan have been identified and are being overcome. and whether State and local agencies with influence over approvals orfunding for TCMs are giving maximum priority to approval or funding forTCMs. W!!l.C.1.d.(1) The LPA and the Division shall provide the MPO with information necessary to develop a list ofthe TCMs, which are in the applicable implementation plan. The LPA may also request thatthe MPO, COOT, the public transit agency, orany other agency responsible for implementing SYGh a TCM reaffirm 

### the its commitment to implement the**applicable~** TCM pursuant to the schedule established in the SIP. W!!l.C.1.d.(2) The MPO, after consultation with the other participants in the consultation process review team. shall determine whether 

### pastobstacles to implementation ofTCMswhich are behind the schedule established in the applicable implementation plan fl.ahave been identified and are being overcome, and whether State and local agencies with influence over approvals orfunding forTCMs are giving maximum priority to approval orfunding for TCMs. For each such determination, the MPO shall identify the past obstacles, the stepstaken to overcomeSYGh obstaclesthem, the State and local agencies with influence over approvals orfunding, the basis for finding that such agencies are giving maximum priority to such approval orfunding, and a revised schedule for the implementation ofthe TCM. W!!l.C.1.d.(3) The MPO shall report a determination that past obstacles to implementation ofaany situation in which it determines that obstacles to implementing a -TCM which is behind schedule have not been identified or are not being overcome, orthat State and local agencies with influence over approvals orfunding ofsuch TCMi are not giving maximum priority to approval or funding for TCMs. The report shall be provided, to the agency sponsoring the TCM, the Division, the Commission and the Governor. The Commission may schedule the matterfor a hearing toregarding enforcement. and/or remove GF replacement SIJGR-of TCMs. 

# l 

# I

IW!!!.C.1.e.-- Notification oftransportation plan orTIP revisions or amendments. which merely add or delete exempt projects listed in 40 CFR Section 93.126 or93.127. The MPO shall provide notice through the normal planning process_, prior to consideration ofany proposed amendmentthat adds ordeletes exempt projects listed in 40 CFR Section 93.126 or93.127 to orfrom the transportation plan or TIP. W!!!.C.1.f. Process for providing final documents and supporting information to each agency after approval or adoption. The MPO shall transmit make available final TIPs and transportation plans to participants in the consultation process. W!!!.C.1.g._--Choosing conformity tests and methodologies for isolated rural nonattainment areas. as required by 40 CFR Section 93.109(1). The Division and COOT shall choose, in consultation with the members ofthe review team, the requirements and methodologies to be used to comply with 40 CFR Section 93.109. Ifthe Division and COOT cannot agree, the issue shall be referred to the Commission for review at a public meeting pursuant to Section W!!!.H. The Commission may escalate the matterto the Governor as provided in Section W!!!.H. WIII.C.2. The review team shall address the following topics in the manner provided. Outside ofthe metropolitan planning areas, COOT shall perform the tasks assigned to the MPO, excepting conformity determination tasks that it contracts outto other entities. W!!!.C.2.a. Evaluating events which will trigger newconformity determinations in addition to those triggering events established in 40 CFR 93.104. W!!!.C.2.a.(1) The MPO may identify events thatwould trigger new conformity determinations in addition to those triggering events established in 40 CFR Section 93.104, and the pollutant specific SIPs. Alternatively, the Commission may promulgate regulations or revise the SIP to identify events in a mannerthatwould trigger a new conformity determination. W!!!.C.2.a.(2) The MPO will consult with the review team to evaluate whether events that maytrigger a new conformity determination pursuant to 40 CFR Section 93.104 ora pollutant specific SIP have occurred. W!!!.C.2.b. Consulting on emissions analysis fortransportation activities that cross the borders of MPOs or nonattainment areas or basins. In the eventthat 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 fortransportation activities that cross the borders of MPOs or nonattainment areas or air basins. W!!!.C.2.c. Determining conformity ofprojects outside the metropolitan area and within the nonattainment or maintenance area. In the eventthat a nonattainment or maintenance area is created in the state that includes a metropolitan planning area orareas, but such metropolitan planning area(s) does not include the entire nonattainment or maintenance area, the affected MPOs, in consultation with the participants in the consultation process, shall establish a procedure for consulting on emissions analyses for transportation activities that cross the borders of MPOs or nonattainment areas orair basins. W!!!.C.2.d. Process for consulting on the design. schedule. and funding of research and data collection efforts and regional transportation model development by the MPO. The MPO, in consultation with the reviewteam shall determine the design, schedule and funding ofsignificant research and data collection efforts and regional transportation model development. W!!!.C.3.**~** Hot-spot analysis: (1) Evaluating and choosing a model (or models) and associated methods and assumptions to be used in hot-spot modeling; and (2) identifying. as required by 40 CFR Section 93.123(b), projects located at sites in nonattainment or maintenance areas that have vehicle and roadway emission and dispersion characteristics essentially identical to those at sites where violations have been verified by monitoring. and therefore require quantitative pollutant hot-spot analysis. COOT, the APCD, USEPA, and USDOT will: WIII.C.3.a. Determine which types of projects should be evaluated for localized hot spots. COOT, subjectto concurrence by the Division, shall identify the projects orcategories of projects that shall be evaluated for potential hot spots. W!!!.C.3.b. Evaluate and choose a model (or models) and associated methods and assumptions to be used in hot-spot analyses. COOT shall be responsible for selecting the hot spot model to be used for conformity determinations. W!!!.D. Process for assuming the location and design concept and scope of projects disclosed to the MPO as required by paragraph (E) ofthis section but 'Nhose in cases where sponsors have not yet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of40 CFR Section 93.122. W!!!.D.1. The MPO shall contactthe sponsor ofany project disclosed to the MPO pursuant to Section W!!!.E., but whose sponsors have not yet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of40 CFR Section 93.122, and shall request that such sponsor develop the location and design concept and scope ofthe project for the purpose of including the project in the regional emissions analysis.WIII.D.2. Ifthe sponsor is unwilling or unable to provide these features to the MPO in a timely fashion, the MPO shall propose reasonable assumptions about such features, and shall provide CDOT, the Division, the LPA, the project sponsor, and any recipient offunds designated underTitle 23 U.S.C. orthe Federal TransitAct that has the authority to adopt orapprove ofthe project, with a written description ofthe proposed assumptions. Following consultation with such agencies the MPO shall make assumptions aboutthe location and design concept and scope ofthe projectthat are reasonably calculated to estimate the emissions associated with such project. Such assumptions shall be based on the information and comments aboutthe project received by the MPO.

Will.E. Process to ensure that plans for construction of regionally significant projects 

### whlGR that are not FHWA/FTA projects (including projects forwhich alternative locations. design concept and scope, orthe no-build options are still being considered), including those by recipients offunds designated underTitle 23 U.S.C. orthe Federal TransitAct. are disclosed on a regular basis, and to ensure that any changes to---tRGse such plans are immediately disclosed.

__ ___,_I.:..:.II:..::.E:.:...1.!..!._Prior to conducting a conformity analysis, the MPO shall ensure that COOT and each municipality, county and public transit agencywithin the metropolitan planning area, and each special district, improvement authority and regional agency with tAeapproval authority to adopt or approve_-effor-transportation projects within the metropolitan planning area,-are_§ notified ofthe requirement to include regionally-significant projects, and changes to plans for such projects, in the regional emissions analysis. ll!.F. Consultation eProcedures fordDevelopmentofState Implementation Plans
Wll!.F.1. Minimum Consultation Requirements -SIP developmentand revision. In each nonattainment or maintenance area, the LPA orthe Division shall establish and maintain a review team for regular consultation to ensure thatthe transportation community is involved in the development ofthe implementation plans. Such review team shall also be established to develop and review any SIP revision that includes a newor revised mobile source emissions budget, orthat requires a new or revised attainment or maintenance demonstration. The review team may be part ofa larger consultation procedure established by the LPA or Division to include all sectors ofthe community (in addition to the transportation community). The consultation procedure shall comply with the minimum requirements listed below. Ifthe review team is established by the Division, the Division shall perform the tasks assigned to the LPA. WIII.F.1.a. The review team shall consist of representatives ofthe MPO, the Division, COOT, the EPA, FHWA, FTA, and the public transit agency. Wll!.F.1.b. The LPA shall begin consultation meetings early enough in the process for review team members to adequately reviewthe modeling used to supportthe SIP, and to review the proposed control measures. The LPA must provide an opportunity to review copies ofthe draft implementation plan, including supporting documents, to the other members ofthe review team, and shall provide at leastthirty days forthe submission ofcomments on the draft SIP priorto adoption by the LPA.

### W!!!.F.1.c. A schedule of meetings ora process for providing adequate notice ofsubsequent meetings shall be developed as part ofthe consultation process. The schedule of meetings shall be frequent enough to address all significant issues in a timely fashion. W!!!.F.1.d. The LPA shall establish an agenda for each meeting, and shall include in such agenda any issue or item upon the request ofany participant. WIII.F.1.e. Any member may, at any time, request a meeting to consult with the LPA and the other participants. Upon such a request the LPA should schedule a meeting as soon as practicable. W!!!.F.1.f. The LPA shall respond in written form to written comments received from any ofthe participants. W!!!.F.1.g. SIPs and SIP revisions proposed by the LPA shall be subject to final approval by the Commission following a public hearing. The Division shall provide final copies ofany SIP or SIP revision to the MPO, CDOT, the LPA, the public transit agency, the EPA, the FHWA, and FTA. W!!!.F.2. The LPA shall submit a list ofTCMs included in the proposed SIP to the MPO, CDOT and each affected local agency or other sponsoring agency at least thirty days priorto approval ofthe SIP or SIP revision by the governing board of the LPA. W!!!.F.3. The SIP development procedures set out in this Section IV.F. shall be in addition to any other rules or regulations applicable to SIP development or SIP revisions. Nothing in this Section W!!!.F. shall be construed to supersede, alter or amend such other rules, orto incorporate such other requirements into the SIP. W!!!.G. Agreements further describing consultation procedures W!!!.G.1. The Division may enter into written agreements with the members ofthe review team to clarify and further develop the procedures for conformity determinations described in this Section W!!!. The Division may also enter into written agreements with the LPA and members ofthe committee established pursuant to Section W!!!.F. to further clarify ordevelop the SIP development procedures. The members ofthe review team may, by mutual agreement, delegate the tasks assigned to them underthis rule to other members. Any member ofthe review team delegating a task shall conduct reasonable oversight ofthe delegated task as necessaryto ensure proper performance. W!!!.G.2. Nothing in this regulation shall be construed to relieve the parties ofthe obligations set out in agreements entered into priorto the effective date ofthis rule, except to the extentthatthe provisions ofsuch agreements are inconsistent with this rule. The Commission and Division shall continue membership on any MPO committee orcouncil as provided in any such agreements. W!!!.H. Review ofConformity Determinations by the public. the Air Quality Control Commission, and resolution ofconflicts.WIII.H.1. Per, 40 CFR Section 93.105(e), agencies making conformity determinations-i.e

.. MPO's orCDOT--must provide for public review and comment priorto adopting new or amended transportation plans-and programs. W!!!.H.1.a. Agencies making conformity determinations must provide reasonable public access to relevant documents, consistentwith 23 CFR Section 450.316(a). Any charges imposed for public inspection orcopying ofdocumentswould be consistentwith USDOT regulations at 49 CFR Section 7.43. W!!!.H.1.b. Agencies making conformity determinations must specifically address in writing any public comments asserting that a regionally significant project is not reflected in the emissions analysis supporting a positive conformity finding. W!!!.H.1.c Agencies making conformity determinations shall provide opportunity for public involvement in conformity determinations for projects where otherwise required by law. WIII.H.2. The Division shall make a finding regarding which Conformity Determinations are routine. per the definition setforth in this regulation. Routine Conformity Determinations regarding a TIP or Plan shall be reviewed by the Division. For instances in which the Division agrees that a positive Conformity Determination has been made, it shall provide notice ofconcurrence with those determinations

.. Each conformity determination on a TIP or plan shall be presented to the Commission for its review priorto submittal to FHVVA

.. The Division shall make the determination regarding whether a Conformity Determination is routine. Ifa Conformity Determination is non-routine. it shall be brought before the Commission for its review and possible concurrence. The Commission intends to conduct public meetings to review non-routine conformity determinations in accordance with the applicable provisions ofthe Air Quality Control Commission Procedural Rules, and reserves the right to schedule such meetings as permitted by the Commission's schedule and as necessary to comply with such procedural rules. However, this paragraph shall not be construed to incorporate such procedural rules into the SIP. No violation ofsuch procedural rules shall be construed as a violation ofthe SIP, exceptwhere such procedural rules otherwise has been incorporated into the SIP. W!!!.H.3. Upon request ofany memberofthe review team, a conformity determination on an FHWA project located outside ofa metropolitan planning area shall be presented to the Commission prior to submittal to FHWA ifthere is a conflict that cannot be resolved by the review team. The request for such review must be filed as soon as practicable and shall not be filed any laterthan the first regularly scheduled Commission meeting following the final conformity determination. WIII.H.4. In-accordancewith 40 CFR section 93.105(d}, conflicts among State agencies or between State agencies and an MPO may be escalated to the Governor. Such conflicts would render a Conformity Determination non-routine and subject to review by the AQCC. The fourteen calendar-days in which to appeal a conflict to the Governor shall commence upon review ofa conformity determination by the Commission pursuant to this Subsection H., except as provided below at Sections (a) and (b). Ifthe State appeals to the Governor, thefinal conformity determination must have the concurrence ofthe Governor. Ifthe Commission does not appeal to the Governorwithin 14 days, oras provided below at Sections (a) and (b), the MPO orCDOT may proceed with the final conformity determination. W!l!.H.4.a. The Commission may extend the beginning ofthe time to escalate a conflict to the next regularly scheduled Commission meeting if the entity making the conformity determination amends such determination during the fourteen-day period preceding the Commission meeting. W!l!.H.4.b. Upon the agreement and concurrence ofthe entity making the conformity determination, the Commission may extend the beginning of the time to escalate a conflict as necessary to accommodate further consultation among the agencies. W!l!.H.4.c. For purposes ofproject level conformity determinations in isolated rural nonattainment and maintenance areas, a "final conformity determination" shall be taken to mean COOT's completed conformity analysis and recommended finding ofconformity to FHWA. IV. Emission reduction credit for certain control measures. !VA Pursuant to 40 CFR Section 93.122(a)(4), emissions reduction creditfrom implementation plan control measures that are not included in the transportation plan and TIP and that do not require a regulatory action in orderto be implemented may not be included in the emissions analysis unless the conformity determination includes written commitments to implementation from the appropriate entities. 

## IV.B. Any entity making a written commitment to perform a control measure not included in the transportation plan orTIP shall fulfill such written commitment ifthe control measure is used for emissions reduction credit in a regional emissions analysis. 

### VJY. Enforceability ofdesign concept and scope and project-level mitigation and control measures. 

### VJY.A. Pursuant to 40 CFR Section 93.125 (c), where project-level mitigation is conditional to a positive conformity determination, written commitments to such mitigation measures must be obtained. Project sponsors shall comply with these commitments. VUVI. Statements of Basis, Specific Statutory Authority, and Purpose VUVI.A. October 15, 1998 The change to Regulation Number 10, "Criteria for Analysis ofConformity," Part B, "Transportation Conformity" will estabHsh criteria and procedures for making conformity determinations on transportation plans, transportation improvement programs (TIPs), FHWA/FTA projects, and consultation procedures for major revisions to the State Implementation Plan (SIP). Federal Requirements Pursuant to 40 CFR Section 51.390, Colorado must submit to the EPA and the U.S. Department ofTransportation (DOT), a revision to the SIP to establish criteria and procedures for DOT,metropolitan planning organizations (MPOs), and state and local transportation and air quality agencies to assess the conformity oftransportation plans, programs, and projects, consistent with the requirements of40 CFR, Part 93, Subpart

### A. The states may incorporate the substantive criteria for making conformity determinations set out in the federal rule, into the state rule by reference. The rule adopted by the Commission takes advantage ofthis opportunity and incorporates the criteria in 40 CFR Part 93, Subpart A by reference. The federal rule also requires the states to develop procedures for interagency consultation on transportation conformity determinations, and for SIP revisions. The federal rule establishes minimum requirements for such consultation procedures, but does not actually establish any procedures. Pursuant to 40 CFR Section 51.390 and 93.105, the states mustdevelop and adopt such procedures, and submitthe procedures to EPAfor inclusion in the SIP. The rule adopted by the Commission establishes procedures for interagency consultation, and addresses each ofthe topics required by 40 CFR Section 93.105. The consultation procedure established in the rule is intended to create a meaningful interagency consultation process that complies with the federal requirements, butthat provides the flexibility necessary to meetthe needs ofthe Colorado Department ofTransportation and the various MPOs in the State. The interagency consultation requirements track the minimum federal requirements, and are not otherwise more stringent than the federal requirements. The only provision in the rule that differsfrom the federal rule is the definition ofthe term "regionally significant project" contained in the state rule. The state rule includes a definition applicable to rural nonattainment areas that do not conduct modeling ofthe area's transportation network. The federal rule appears to assume that all nonattainment areas conduct such modeling. The specific definition in the rule for rural areas is necessary to reconcile the federal rule with the general practice in rural nonattainment areas, but is not more stringentthan federal requirements. Contested Issues One MPO urged the Commission to adopt a rule requiring a public meeting to be held prior to final action by the MPO. The rule is written to allow flexibility, so that MPOs have the option of coming to the Commission either before oraftertheir governing board takes final action on the conformity determination. However, the Commission strongly encourages the MPOs to submit a draft conformity determination to the AQCC for comment, so thatthe MPO can take the Commission's comments into account as early in the process as possible. Statutory Authority The transportation conformity rule is adopted underthe Commission's general authorityto adopt a SIP under§Section 25-7-105(1), C.R.S. (1997). Findings pursuant to §Section 25-7-110.8 The portion ofthe rule incorporating the federal criteria for making conformity determinations is exemptfrom the requirements of§Section 25-7-110.8, C.R.S. (1997). The consultation requirements are administrative in nature, and are exemptfrom the requirements of§Section 25- 7-110.8(1)(b), C.R.S. The interagency consultation requirements establish a procedure for ensuring that the federal, state and local air quality agencies charged with protecting human health and the environment are consulted during the transportation conformity process. In this way, the rule will bring about reductions in risks to human health orthe environmentthat willjustifythe cost of implementation ofthe rule. The rule adopted by the Commission complies with the minimum federal requirements and maximizes the airquality benefits ofthe regulation in the mostcost-effective manner. No other party proposed any alternative rule thatwould accomplish this result in a more cost-effective manner. VUVI.B. November20, 2008 Transportation Conformity Update Background
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements ofthe Administrative ProceduresAct, Section 24-4-103, C.R.S. and the Colorado Air Pollution Prevention and Control Act, Section 25-7-110.5, C.R.S.
Basis and Purpose
These revisions to "Part B, "Transportation Conformity," update the Regulation to incorporate by reference revisions to the federal rule, and to recognize Colorado-specific practices.
The incorporations by reference adopt revisions to federal conformity regulations adopted by the EPAsince 1997. Most ofthese revisions have streamlined processes and relaxed requirements.
The revisions add language that addresses 40 CFR Section 93.122(a)(4)(ii) regarding obtaining and ensuring the fulfillment ofwritten commitments to SIP control measures needed to achieve or maintain national ambient airquality standards that are not included in transportation plans or programs. These revisions also add language that addresses Section 93.125(c) regarding obtaining and ensuring the fulfillment ofwritten commitments to transportation project mitigation measures. These are not newfederal provisions, butthey are newly required to be "addressed," i.e., made explicit in state conformity implementation plans.
These revisions also make non-substantive changes including correcting citations, clarifying language, and striking of unnecessary or confusing language.
Federal Requirements
Pursuantto 40 CFR Section 51.390, Colorado must submitto the EPA and the U.S. Department ofTransportation (DOT), a revision to the SIP to establish criteria and procedures for DOT, metropolitan planning organizations (MPOs), and state and local transportation and airquality agencies to assess the conformity oftransportation plans, programs, and projects, consistent with the requirements of40 CFR, Part 93, SubpartA. The states may incorporate the substantive criteria for making conformity determinations setout in the federal rule, into the state rule by reference. The rule adopted by the Commission takes advantage ofthis opportunity and incorporates the criteria in 40 CFR Part 93, SubpartA by reference.
The federal rule also requires the states to develop procedures for interagency consultation on transportation conformity determinations, and for SIP revisions. The federal rule establishes minimum requirements for such consultation procedures, and requires States to establish these consultation procedures, including consultation with the public and conflict resolution at40 CFR, Sections 93.105 (c) and (d). Pursuantto 40 CFR Sections 51.390 and 93.105, the states must develop and adoptsuch procedures, and submitthe procedures to EPAfor inclusion in the SIP. Pursuantto 40 CFR Sections 93.122(a)(4)(ii) and 93.125(c), States mustalso address theobtainment and enforceability ofwritten commitments to SlP control measures not included in transportation plan as well as transportation project mitigation measures. Statutory Authority This transportation conformity rule is adopted underthe Commission's general authority to adopt a SIP under§Section 25-7-105(1), C.R.S. (1997). Findings pursuant to §Section 25-7-110.8 The portion ofthe rule incorporating the federal criteria for making conformity determinations is exemptfrom the requirements of§Section 25-7-110.8, C.R.S. (1997). The revisions addressing public consultation, conflict resolution, written commitments to SIP control measures not contained in transportation plans and project-level mitigation conditional to a conformity determination track the requirements in federal rules and are mandated by federal law. These revisions provide forwritten commitment to incorporate mitigation measures into project design fortransportation projects. Mitigation measures are frequently necessary to reduce localized emissions associated with transportation project construction, but rarely relied upon for conformity determinations. Where such commitments are necessary for a positive conformity determination, they must be enforced so as to reduce risks to human health orthe environment, which justifies the cost of implementation ofthe rule. The rule adopted by the Commission complies with the minimum federal requirements and maximizes the air quality benefits ofthe regulation in the most cost-effective manner. No other party proposed any alternative rule thatwould accomplish this result in a more cost-effective manner. VI.C. December 15.2011 Basis and Purpose The purpose ofthese amendments is to streamline the transportation conformity process by allowing the Colorado Air Pollution Control Division to provide concurrence with routine transportation conformity determinations without the need for a public hearing before the Colorado Air Quality Control Commission. This change to the conformity process is allowed for under federal law and will reduce the burden on the AQCC, the Division and transportation planning organizations. while ensuring that airquality requirements are met. In addition. the amendments include a number ofclarifving provisions thatwill help facilitate the implementation ofthe regulation. Specific Statutory Authority The Commission promulgates these regulatory changes pursuant to its authority under Section 25-7-105(1)(a)(l), C.R.S. to adopt a comprehensive state implementation plan that meets the requirements ofthe federal Clean Air Act. Findings Pursuant to Section 25-7-110.8 The revisions to Regulation Number 10 are administrative in nature and are not intended to reduce air pollution. Rather. the revisions are intended to streamline the transportation conformity process and clarify existing requirements. while maintaining the air quality benefits of the existing rule. Accordingly, the requirements ofSection 25-7-110.8. C.R.S. do not apply to this rulemaking.

# MeetingAgendawhere Public Hearing Occurred and Noticepublishedinthe LegalAds ofthe DenverPost
40 CFR Part51 Appendix V2.1(f)

# STATEOFCOLORADO

John W. Hickenlooper, Governor Christopher E. Urbina, MD, MPH, Executive Director and ChiefMedical Officer COLORADOAIR QUALITY CONTROL COMMISSION http://www.cdphe.state.co.us 4300 Cherry Creek Drive South OED-OLRA-A5 Denver, Colorado 80246-1530 Phone (303) 692-3100 Fax (303) 691-7702 TDD (303) 691-7700 Colorado Department ofPublic Health and Environment 

# Notice ofMeeting and Agenda Air Quality Control Commission December15,2011 Colorado Department ofPublic Health & Environment 4300 Cherry CreekDrive South, Sabin Room

Callto Order: Approval ofMinutes:

Public Comment:

RAQC Review:

CONSENTAGENDA 

## Denver, Colorado



# 9:00a.m.

Determination ofa Quorum Review/ Approval ofthe October 20, 2011 meeting minutes ofthe Air Quality Control Commission. The public is invited to comment on any air pollution issue not on the agenda. The Commission will not take action on issues discussed under this item today; however, items may be scheduled for further discussion oraction.
Ken Lloyd ofthe Regional Air Quality Council will briefthe Commissiononupdates from the RAQC and itemsthat may be scheduled for further discussion.

The Commission will vote onItem Numbers I through 4aspartof a ConsentAgenda. Adoption of a ConsentAgendaallows the Commission to consolidate votingon agenda items thatdo not needto be discussed individuallyand for whichpresentation of additional information is not required.REQUEST FOR PUBLIC HEARING 

### 1. 

### Pikes PeakArea Council ofGovernments (PPACG) The Pikes Peak Area Council ofGovernments requests February 2012 hearing (or consent agendaruling) regarding Conformity ofits 2035 MovingForward

### Regional Transportation Plan and 2012-2017 TransportationImprovement Program. The PPACGhas made an affirmative conformity determinationfor its Plan and TIP, and seeks AQCCconcurrence withthe findings.

RULEMAKING HEARINGS 

### 2. RegulationNumber9: SmokeManagementDistributionofCostUpdate The Commissionwill considerrevisions to RegulationNumber9 regarding aperiodic update in eachpermittees recent emissions and permitting activity data. This datais used to determine the distribution ofthe cost ofthe smoke managementprogramto eachpermittee. 

### 3. PM2.5 InterstateTransportSIP The Commissionwill consider aproposed revisionto the Interstate Transport State ImplementationPlan (SIP) for the 2006 PM2.5 standard. Thisrevision is a supplementto previously-approved chapters ofthe Interstate Transport SIP thatthe Commission approved in January 2010 and December 2008, which focused onthe 1997 ozone and PM2.5 standards. 

### 4. SteamboatSprings PMlO MaintenancePlan The Commissionwill consider a proposed SIP revisionto the PM10 Maintenance Plan for the Steamboat Springs Attainment/Maintenance Area. Approval ofthe associated documents by boththe City ofSteamboat Springs and Routt County is anticipatedby December 2011. Additionally, a changeto the "Air Quality Standards- Air Quality Standards, Designations and EmissionBudgets"regulation is proposedto update the PM10 emissionbudgetfor the Steamboat Springs area. 

### TRADITIONALAGENDA RULEMAKING HEARINGS 

### 5. Regulation Number 10 and ProceduralRules: Criteriafor Conformity (20 minutes presentation, 20 minutes discussion) The Commissionwill consider streamliningthe transportation conformityprocessby allowingthe Colorado Air Pollution Control Divisionto provide concurrence withroutine transportation conformity determinations withoutthe need for a publichearingbefore the Colorado Air Quality Control Commission. This change to the conformityprocess is allowed for under federal lawand will reduce the burden onthe AQCC, the Division and transportationplanning organizations, while ensuringthat airqualityrequirements are met. The Commissionwill considerproposedrevisions to the SIP, AQCC'sRegulationNumber 10 and the Procedural Rules.

2BRIEFINGS, DISCUSSIONS AND REPORTS 

### 6. Rocky Mountain National Park (20 minutes presentation, 20 minutes discussion) The AirPollution Control Division, National Park Service, and Environmental Protection Agency are workingtogether onthe RMNP Initiative, a collaborative effortto reduce nitrogen deposition in Rocky MountainNational Park. The agencies will briefthe AQCC onthe progress ofthe tasks outlined in the Nitrogen DepositionReductionPlanendorsed by the Commissionin 2007 and the ContingencyPlan adopted in 2010.


### 7. MonitoringBriefing (30 minutes presentation, 20minutes discussion) The Division will briefthe Commissiononmonitoring sites operatedbythe Division and others. Thebriefing will address EPAmonitoring and siting requirements, why sites are located in certainplaces and notin others, whatpollutants are monitored, andpossibilities for additional monitoring. Newmonitoring requirements from EPAwill also be addressed and the Division's currentplans to meetthoserequirements. 

### 8. HB09-1199: ColoradoHealthyForests andVibrantCommunitiesAct (40 minutes presentation, 20 minutes discussion) As a follow-up to the Commission'srequest from the March 2011 briefing, the Division will provide the Commission a status update regarding implementation ofthe recommendations from the HB09-1199 study. Additionally,the US Forest Service will bepresenting a status update to the Commission on collaborative efforts withthe Colorado AirPollution Control Divisionregarding changes to the Colorado Smoke Management Program since the March 17, 2011 Commissionhearing. Deputy Regional ForesterBrian Ferebee will be the lead presenter and will be assistedby several agency technical specialists. 

### 9. CommissionerInformationalItems Commissioners will discuss amongthemselves activities that they haveparticipated in over the past month that they believe otherCommissioners and/or members ofthe public may be interested inhearing about. 

### 10. Division Director's Report- Will Allison Monthly activitiesreport 

### 11. Attorney General's Report- Andrea Gelfuso-Goetz Update ofany recent court actions onairquality issues 

### 12. Administrator's Report- Mike Silverstein • Review February agenda items • Review ofAction Items from today's Commissionmeeting Adjourn

3

## The Denver NewspaperAgency
PUBLISHER'SAFFIDAVIT 

## City and County ofDenver ) State ofColorado )

The undersigned_Jean Birch_ beingfirst duly sworn under oath, states and affirms as follows: 

### )

1. 

### He/she is the legal Advertising Reviewer ofthe Denver NewspaperAgency, publisher of The DenverPost

### and Your

### Hub. 2. The DenverPost

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### are newspapers ofgeneral circulation that havebeen published continuously and without interruption for at least fifty-two weeks in Denver County and meet the legalrequisites for a legal newspaper under Colo. Rev. Stat. 24-70-103. 3. The notice thatis attached hereto is a true copy, published in The DenverPost 

### on the following date(s): 

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## ;.L·),. )iiI(

,/1 /} 1

# 1..-t:d 1 k · 

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Subscribed and sworn tobefore me this _31 day of_October_, 2011.

J 

### Notary Public My commission expires _september 14,zou
__

(SEAL) Noffi;eofPuDilclllldRulllm.acfnt**~CIIIIfPubiiC**comment._,.tngl PUB1.!$H 10/29/Jl

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.... , . . . . • Ttl•**Coloi:.OO.Alt;~** Control**Co~**willhokltl\efohowlnorutemal<-**mohearlrt~** ' , ' : DATE: Oecem!Htrl5,2011**~~; ~:'doeepartmentofPubllcHealthend&nvlroomen.t**  430DC::I!errvcreekDriVeSou1tl-SabinC:OntertnceRoom Cltllver,C080246

.**~~**

# Procedural Documents ofthe Commission

- AgendaItem Control Sheet

- Memorandum ofNotice

- Economic ImpactAnalysis (initial and final)

- Regulations Change List

## COLORADO AIR QUALITY CONTROL COMMISSION AGENDA ITEM CONTROL SHEET


### Item Title: Public Hearing: Proposed Revisions to AQCC Regulation Number 10, Criteria forAnalysis ofConformity, and Associated Proposed Revisions to the AQCC Procedural Rules Meeting Date· December 15, 2011

NON-HEARINGACTIONS 

### Administrative _Briefing Policy

Adoption

_K_Required TYPES OF ACTION REQUESTFOR HEARING



### _ Public Rulemaking _Informational

RECOMMENDED ACTION 

## _x Approval

MOTION 

### Attached HEARING 

### _K_Public Rulemaking _Informational

Denial

Not applicable

## ~--------------------------------------------------------------~~ STATUTORYAUTHORITY 

### General 2S_Specific

EPA SUBMITTAL 

### Is this issue considered a SIP revision? 2S_Yes _No Which SIP? AQCC Regulation No. 10, Criteria forAnalysis of

### Confurmi~--------------------~-----------------­ Date of EPA submission deadline: June 2012 Is this an EPA delegated program? _Yes __2S_No

Public Hearing for Regulation No.10 and Procedural Rules-- December 15, 2011 Page 1 of4

### ISSUE STATEMENT:

The Clean AirAct (CAA) requires Federallysupportedtransportation plans, transportation improvement programs, and all regionally significant projects, regardless offunding source, to be consistentwith, or "conform to" the purpose ofstate airquality implementation plans. Colorado Air Quality Control Commission Regulation Number 10, Criteria forAnalysis of Conformity, cites the necessity for compliance with Federal rules, and sets out Coloradospecific provisions regarding:

• Procedures for review oftransportation conformity demonstrations; • Interagency consultation regarding conformity demonstrations; 

### • The fulfillment of commitments to SIP control measures not included in a transportation plan ortransportation improvement program; and • Enforceability oftransportation project-level mitigation and control measures. TheAir Division and consulting agencies are proposing revisionsto Regulation Number 10 that would significantly streamline the process for "routine" Conformity Determinations. Proposed language would define a "routine" Conformity Determination as:

one that is made fortransportation plans and TIPs and/ortheiramendments involving: (1) Individual roadwayprojects adding less than two lane miles, with additional miles forallprojects equaling < 

### 10 lane miles; andlor (2) Projects with revisions to stagingyears only, and/or (3) Minortransitstation plan revisions. ConformityDeterminations forareas with LimitedMaintenance Plans, which do nothave emissions budgets, as such areas that have been in attainment for20 years orlonger, wouldalso generallybe considered "routine."Notwithstanding this general definition, the APCD atits discretion 

### mayrequest that any Conformity Determination be reviewedby the Commission. In addition, the Regulation needs to be revised to be brought up to datewith current EPA regulations and guidance. The addition of several definitions is proposed to facilitate understanding ofthe Regulation and transportation conformity processes and todefinethe term "routine" Conformity Determination. Certain unnecessary provisions are proposed to be removed, and clarifying language is proposed in sections throughout the Regulation. Streamlining provisionswould allowthe Divisionto review and provide official concurrence with routine Conformity Determinations, removing the requirement that the Commission conduct a hearing for each and every Conformity Determination. It is anticipated that the proposed streamlining will reduce the workloads ofthe Division, the Commission and the MPOs. Filings with the Commission and paper usage will be significantly reduced for routine Conformity Determinations.

Public Hearing for Regulation No.10 and Procedural Rules-- December 15, 2011 Page 2 of4

### Revised language provides that the Division would make the determination regarding whethera Conformity Determination is a routine one. IfaConformity Determination is nonroutine-because of project size or due to unresolved air quality issues and/or lack of agency agreement regarding aconformitydetermination, theAPCD (orother parties) could request that the Commission conduct a public hearing and either resolve matters or escalate them to the Governor. Finally, as recommended by EPA, references to General Conformity are removed sothat Regulation No. 10 concerns itselfwith Transportation Conformity exclusively, and thusthe title ofthe Regulation would so specify. It is proposed thatthe newtitle of Regulation No. 10 become, "Criteria forAnalysis ofTransportation Conformity." 

### The requisite agencies comprising theTransportation Conformity InteragencyConsultation Group include the Division, the (Denver) Regional Air Quality Council, the USEPA, the Federal HighwayAdministration, the Federal TransitAdministration, the (Denver) Regional Transportation District, the Denver Regional Council of Governments, the North Front Range MPO, and the Pikes PeakArea Council ofGovernments. These agencies have met numerous times in the last year to craft and discuss the revisions, and they are in agreement regarding the revisions being proposed. The Division recommends that the Commission approve the proposed revisions to Regulation No. 10 and to its Procedural Rules. (Please see the list of attachments on the next page)

Public Hearing for Regulation No.10 and Procedural Rules-- December 15, 2011 , Page 3 of4

### ATTACHMENTS:
1. Redline-strikeoutversion of Regulation Number 10
2. Redline-strikeout version ofAQCC Procedural Rules (hardcopy has pp.1-8 only)
3. List ofProposed Revisionsto AQCC Regulation Number 10, 

### Criteria forAnalysis of Conformityand 

### AQCC Procedural Rules
4. Final Economic ImpactAnalysis 5. Final Statement of Basis and Purposefor proposed revisions to Regulation No. 10 6. Final Statementof Basis and Purpose for proposed revisions to AQCC Procedural Rules

SIGNATURES:

1.

2.

3. 

### Preparer

-

# ~isasD I 

### Date

Program Manager- Garrison Kaufman Date



# ;<7**;(~** 

# ? t'

# 4--
Division Director

- Will Allison Date

Public Hearing for Regulation No.10and Procedural Rules

-- December 15, 2011 Page 4 of 4

### MEMORANDUM OFNOTICE

Date: September 15, 2011
To: Interested Parties Subject: Proposed revisions to theAir Quality Control Commission's Regulation Number 10, Criteria forAnalysisof Conformity, 

### and accordantrevisions to the Commission'sProceduralRules



### GENERAL DESCRIPTION
Air QualityControl Commission Regulation Number I0, 

### Criteria forAnalysis of Conformity, also referred to by EPA as the State'sconformity implementation plan (or SIP), should be revised to streamlinetransportation conformity requirements in Colorado and to be brought up to date with Federal EPA requirements and guidance, perCFR, Parts 51 and 93. Proposed revisions should be submitted to the Legislature and to EPA nextyear; thus approval by the Commission is requested to occurbefore January 2012.
Colorado'stransportation conformityregulations are more stringent than federally required, as they require Commission hearing for each and everyConformity Determination. Federal rules require onlythat (non-specified) air quality agencies review Conformity Determinations; thus the Division maybe designated as this agency. The Division and consulting agencies agree that the Division could review and provide formal concurrence with "routine"Conformity Determinations, and are proposing such revisions to State rules. Proposed revisions statethat non-routine Conformity Determinations, i.e., those that are made for transportation plans or programs containingmajor projects and any controversial ConformityDeterminations would be brought before the Commission.
Additional updates since the last Regulation Number I0 revisions (in 2008), clarifications, and minorcorrections are also proposed.



### RULEMAKINGPACKAGE
Attachmentsto this memorandum provide details on the proposal as follows:

• AttachmentA: The actual language oftheproposed revisions to Regulation Number 10, 

### Criteria forAnalysis of Conformity • Attachment B: The actual language oftheproposed revisions to the Commission's 

### ProceduralRules

Memorandum ofNotice- Regulation Number 10 and Procedural Rules- September 15,2011 Page 1 of4

### • Attachment 

### C. An explanatory list ofthe main proposed revisions to Regulation Number 10 and to the AQCC Procedural Rules. • Attachment D: An initial economic impact analysis oftheproposed revisions • Attachment E: Draft StatementofBasis and Purpose

EXPLANATION OFTHE PROPOSED RULES
The proposed revisions to AQCC Regulation Number 10 streamlinetheprocess for air quality agency review oftransportation ConformityDeterminations, clarify rule language, and make it consistent with federal Conformity regulations and guidance. Corresponding revisions to the AQCC Procedural Rules are proposed.

Materials to be Incorporated by Reference
There are no materials incorporated by reference. DevelopmentofProposed Plans and Rule Revisions
What is the problem?
The Division understands from the Commission, from consulting agencies, and from its own experience, thatthe review process for routine ConformityDeterminations is more stringentthan federally required and more resource intensivethan necessary. The federal rules require onlythat (unspecified) air quality agencies be consulted by the MPO orother organization makingthe Conformity Determination (93.105(b)(1 ), and not that a hearingbe held bythe air quality agency(ies). Regulation Number 10 and the Commission'sprocedural rules currently require AQCC public hearing for each and everyConformity Determination. This requirement may have been needed in years past when transportation Conformity Determinations were new in**Colora~o,** 

### buttoday most such determinations are routine. Additionally, provisions regarding General Conformity are notpertinentto this regulation and it is proposed thattheybe removed. Regulation Number 10 needs to be clarified in several areas, and provided with minor correctionsthroughout the document.
Considerable time and resources would be saved atthe Commission, Division and MPO levels viathe proposed streamlining provisions. The documentation necessaryto prepare for, request, and to hold AQCC hearings could be avoided, and the Commissioners' time could be freed for otherbusiness.

Memorandum ofNotice- Regulation Number 10 and Procedural Rules- September 15, 2011 Page 2 of4

### How were the proposed revisions to RegulationNumber 10 and the Procedural Rules developed? Streamliningprovisions were suggested by several members ofthe Interagency Consultation Group, who recognized that the AQCC and several ofthe consulting agencies were significantly burdened by current requirements even for routine ConformityDeterminations.
Additional proposed revisions would better define the terminology used in Regulation Number I0, and others would clarifyrule and process provisions.
Several meetings, as well as telephone and e-mail correspondence with the agency stakeholders were held, which resulted in the suggested revisions included in the proposal.
How do the proposed rule revisions affectthe public, regulated community, and other agencies? Overall, revisions to Regulation Number 10 would streamlineCommission, Division, and MPO workloads.
The proposed revisions will further protect public health bycontinuing to require Conformity Determination input and review by air quality agencies. Such review will ensurethat transportation plans and programs are consistent with State air quality implementation plans and will not threaten national ambient air quality standards or worsen a nonattainment situation.
The regulated community in this case consists ofair quality and transportation planning agencies in nonattainment and attainment/maintenance areas. In Colorado this includes the Air Quality Control Commission, the Division, the (Denver) Regional Air Quality Council; the Colorado Department ofTransportation, the (Denver) Regional Transportation District, the Denver Regional Council ofGovernments, the North Front Range Metropolitan Planning Organization, the Pikes PeakArea Council ofGovernments, the Upper Front Range Transportation Planning Region; Region 8EPA, the Federal HighwayAdministration, and theFederal TransitAgency.
The proposed rule revisions would significantly reduce the workload oftheAQCC, the Division and the MPOs. The Division can easily absorb the one additional duty it would take on-thatof signing a letter ofconcurrence to MPOs makingroutine Conformity Determinations. No additional duties for the Division or anyone else are anticipated as a result ofthis rulemaking.

Memorandum ofNotice- Regulation Number 10 and Procedural Rules- September 15, 2011 Page 3 of4

### How do the proposed rule revisions relate to federal requirements or adjacent state requirements?
The proposed revisions to Regulation Number 10 are consistentwiththe federal regulations and with current EPA guidance. Adjacent states must also complywith the federal regulations and they will notbe affected by Colorado'sproposed rule revisions.
How will the regulatoryrevisions be implemented?
The revisions would be implemented bythe Division. In general these revisions would eliminate numerous tasks and paperwork related to 4-6 AQCC hearings per year. Its only additional duty would be to providethe formal concurrence regarding routine Conformity Determinations, i.e., to sign the concurrence letter it currentlydrafts, and to sendthe letterto the relevant MPO.
Are there time constraints? Expeditious revision to Regulation Number 10 is requested so as to meet deadlines for the SecretaryofState; for the (2012) Colorado General Assembly for its review; and for submittal to the EPA in 2012. What ifthe Air Quality Control Commission does not adopt the proposed Rule revisions?
Ifthe Commission does not adopt the proposed rule revisions, the State'sconformityrule would remain more stringentthan federal regulations especially in its requirements for Transportation Conformity review and public hearingsbythe Commission. Federal rules require onlythat (nonspecified) air quality agencies review Conformity Determinations. In addition, several provisions in the Regulation are unnecessary, includingthose that address General Conformity and all incorporations by reference.

PUBLIC MEETINGS
Overthe past 18 months, the Division met with members ofthe Interagency Consultation Group, and the Commission will hold a Rulemaking Hearing on the proposed revisions to the rules. The Commission will establish a pre-hearing process as needed to ensure an orderlyhearing. Anyone may participate in the pre-hearing and hearingprocessby obtaining party status in accordance with the Commission's Procedural Rules. As discussed above, the Division has already met with and otherwise discussed proposed rule revisions. Additional meetings may be held outside the pre-hearing process ifthere is sufficient interest from stakeholders.

CONTACT INFORMATION: For more information please contact: Lisa Silva, Air Pollution Control Division, 4300 CherryCreek Drive South, Denver, CO 80246-1530 Phone: (303) 692-3119 Fax: (303) 782-5493 E-mail: Lisa.Silva@state.co.us

Memorandum ofNotice- Regulation Number 10 and Procedural Rules- September 15, 2011 Page 4 of4

### INITIAL ECONOMIC IMPACT ANALYSIS 

### Per C.R.S. 25-7-110.5

September 15, 2011

The Division is proposing that AQCC Regulation Number 10, Criteria forAnalysis of Conformity, 

### be revised to streamline it; to make it consistent with federal transportation conformity regulations; and to bring clarify and make minor corrections to the Regulation. Accordant revisions to the AQCC Procedural Rules are also proposed. The proposed new provisions do not add, but rather reduce requirements for substantive action and therefore would not add any cost burdens to the agencies subject to transportation conformity rules. The streamlining provisions would relax requirements for routine Conformity Determinations and could provide substantial administrative burden reductions, thereby potentially saving costs in the future.

Initial Economic Impact Analysis- Regulation Number 10- September 15, 2011 Page 1of 1

### FINAL ECONOMIC IMPACT ANALYSIS Per C.R.S. 25-7-110.5

December 15, 2011

The Division is proposing that AQCC Regulation Number 10, Criteria forAnalysis of Conformity, 

### be revised to streamline it; to make it consistent with federal transportation conformity regulations; and to clarify and make minor corrections to the Regulation. Accordant revisions to the AQCC Procedural Rules are also proposed. The proposed new provisions do not add, but rather'reduce requirements for substantive action and therefore would not add any cost burdens to the agencies subject to transportation conformity rules. The streamlining provisions would relax requirements for routine Conformity Determinations and could provide substantial administrative burden reductions, thereby potentially saving costs in the future.

Final Economic ImpactAnalysis -Regulation Number 10- December 15, 2011 Page 1of 1

### Listofproposed changes to ColoradoAirQuality Control Commission Regulation Number 10, Criteria forAnalysisof Conformity, 

### and accordantproposed changes to the Commission'sProceduralRules
Contact: Lisa Silva (303) 692-3119


### Proposed changesto Regulation Number 10

• Rule Titleto be changed to 

### Criteria forAnalysis of Transportation Conformityto reflect thatthis regulation is not meantto address General Conformity issues.

• Part A: (General Conformity) to be stripped out, as this rule/state implementation plan element is not required to address General Conformity.

• Part B There is no need to designate a Part B (or PartA) given the above. • The current provisions adopted by reference are problematic in that they date material. EPA indicates that the IBR's are not necessary.

• Requirement to comply with the Federal rule: New introductory language introduces Regulation Number 10 providing context and connection to Federal requirements.

• Definitions: The Interagency Consultation Group (Review Team) proposed new definitions to aid in understanding ofthis Regulation and the Transportation Conformity process. Several ofthedefinitions are directly from the Federal Rule. Clarifying language is proposed for certain ofthe definitions.
"Routine conformitydetermination" is a significant added term proposed to assist with streamlining Colorado'sTransportation Conformityprocess. It corresponds to new language at III.H.2, which proposes to allow for review and concurrence with conformity determinations at the Division level when conformity determinations are "routine."

• III. Interagency Consultation: In addition to clarifying languagethroughoutthis section, language at Subsection (A)(3)(e) is proposed to acknowledgethat projects outside MPO'smay be funded bynon-Federal moneys, and that organizations otherthan CDOTmaybe responsible for makingtransportation conformitydeterminations.

• III.(H): Review ofConformity Determinationsby the public, the AirQuality Control Commission, and resolution ofconflicts

• III. (H) (2): As noted above, new language is proposed here that would allow the Divisionto review and provide official concurrence with routine (or minor)
List ofproposed revisions to Regulation Number lO and to the Procedural Rules -December 15,2011 Page 1 of2

### conformity determinations. 

### It is anticipated thatthese provisions will alleviate the workload ofthe Commission, the Division, and the MPO'swithout reducing the quality ofConformity review or its quality assurance. Conformity determinations involving majortransportation projects orprograms, or any controversial conformity determinations would be broughtbeforethe Commission for a hearing.

• III. (H)(4): New language is proposed here to indicate that (unresolved) conflicts among orbetween agencies would render a conformitydetermination process non-routine, and therefore subjectto review bythe Commission.
There are numerous additional minor editsthroughout the document.

Proposed changes to the Commission'sProceduralRules 

### It is proposedthat Section 1.14.13(1) 

### be revisedto indicate thatthe Commission will hear only non-routine Conformity Determinations, and to clarifythatprojects outside ofMPO areas and regionally significantprojects funded with non-Federal moneys mayrequire conformity determinations, and that such determinations maybe the responsibility of parties otherthan MPOs.
Additional minor clarifying revisions are proposed.

List ofproposed revisions to Regulation Number 10 and to the Procedural Rules -December 15,2011 Page 2 of2

# Parties HearingDocuments

- No Parties

# EPA Comments
40 CFRPart51 Appendix V2.1(h)

- None Submitted

# Public Comments
40 CFR Part51 Appendix V2.1(h)

- None Submitted

# Adopted Statement ofBasis, Specific StatutoryAuthority andPurpose RegulationNumber 10VI.C. Amendments Adopted December 15, 2011 Basis and Purpose
The purpose ofthese amendments is to streamline the transportation conformity process by allowing the Colorado Air Pollution Control Division to provide concurrence with routine transportation conformity determinations without the need for a public hearing before the Colorado Air Quality Control Commission. This change to the conformity process is allowed for under federal law and will reduce the burden on the AQCC, the Division and transportation planning organizations, while ensuring that air quality requirements are met. In addition, the amendments include a numberofclarifying provisions that will help facilitate the implementation ofthe regulation. In addition to streamlining the transportation conformity process, these amendments include a numberof housekeeping changes made at the request of EPA, including removing incorporations by reference to federal general conformity regulations. Inclusion of these requirements in Regulation Number 10, and the State Implementation Plan is not required and is unnecessary to the general conformity process. Specific Statutory Authority The Commission promulgates these regulatory changes pursuant to its authority under Section 25-7-105(1)(a)(l), C.R.S. to adopt a comprehensive state implementation plan that meets the requirements ofthe federal Clean Air Act. Findings Pursuant to Section 25-7-110.8 The revisions to Regulation. Number 10 are administrative in nature and are not intended to reduce air pollution. Rather, the revisions are intended to streamline the transportation conformity process and clarify existing requirements, while maintaining the air quality benefits of the existing rule. Accordingly, the requirements ofSection 25-7-110.8, C.R.S. do not apply to this rulemaking.

# AdoptedLanguagebythe Commission (inredline & footer noting adoption date andpagenumbers) 

# RegulationNumber 1 0 f 

# I

## DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT Air Quality Control Commission REGULATION NUMBER 10 CRITERIA FOR ANALYSIS OF TRANSPORTATION CONFORMITY 5 CCR 1001-12

PART A Determining Conformity ofGeneral Federal AGtions to State or Federal Implementation Plans
I. Incorporation ofthe Federal Rule The provisions ofTitle 40, Part 51, Subpart VV and Title 40, Section 6.303, ofthe Code of Federal Regulations, (July 1, 1994), promulgated by the US Environmental Protection 1\gency (EPA) are hereby incorporated by reference by the Air Quality Control Commission and made part ofthe Colorado Air Quality Control Commission Regulations. Materials incorporated by reference are those in existence as ofthe dates indicated and do not include later amendments. The material incorporated by reference is available for public inspection during regular business hours atthe Office ofthe Commission, located at 4300 Cherry Creek Drive, South, Den\'er, CO 80246 1530, or may be examined at any state publications depository library. Parties wishing to inspectthese materials should contact the Technical Secretary ofthe Commission, located at the Office ofthe Commission.
II. Statement of Basis, Specific Statutory Authority and Purpose II.A October 17, 1996 

### Part A: General Conformity Background This statement of Basis, Specific Statutory Authority and Purpose complies with the requirements ofthe Administrative Procedures Act, C.R.S. 1973, Section 24 4 103(4) for adopted or modified regulation.

The EPA has promulgated rules to ensure that Federal actions conform to the appropriate State Implementation Plan (SIP). Conformityto a SIP is defined in the Clean AirAct as meaning conformity to a SIP's purpose ofeliminating or reducing the severity and number ofviolations of the National AmbientAir Quality Standards (NAAQS) and achieving expeditious attainment of such standards. The Federal agency responsible forthe action is required to determine if its RegulationNumber 10 Adopted: December 15, 2011 Page 1actions conform to the applicable SIP. Colorado is required, through federal rule, to submitto EPA revisions to the SIP establishing conformity criteria and procedures consistentwith federal 

### rule:- Statutory Authority The general authority forthis regulation is contained in the Colorado Air Pollution Prevention and Control Act, Section 25 7 105(1)(a), which requires the Commission to promulgate a state implementation plan, which will assure attainment and maintenance ofthe NAAQS. This regulation incorporates the federal requirements, and does not go further than the requirements. Purpose The purpose ofthe rule is to implement Section 176(c) ofthe Clean AirAct, which requires that all federal actions conform to an applicable implementation plan developed pursuant to Section 110 and Part D ofthe Act. The Commission is incorporating the EPA rule by reference in orderto comply 'Nith the federal requirements. 

### PART 8 Conformity to State Implementation Plans ofTransportation Plans, Programs, and Projects Developed, Funded or Approved UnderTitle 23 U.S.C. or the Federal Transit Act hi. Purpose. applicability and incorporation of material by reference
I.A. The purpose ofthis Part B of Regulation Number 10 is to implement a State Implementation Plan (SIP) governing transportation conformity determinations, including the establishment ofstate specific interagency consultation procedures, and addressing the obtainment and enforceability of written commitments to certain transportation control measures and project mitigation and control measures, as required by 40 CFR, Section 51.390, as published at 62 Federal Register 158 (August 15, 1997), and as amended through 73 Federal Register 4439, January 24, 2008. I.B. This rule shall have the same applicability as 40 CFR, Part 93, as published at 62 Federal Register 158 (August 15, 1997), and as amended through 73 Federal Register 4439, January 24, 2008. In general, such federal requirements apply to transportation projects, transportation improvement programs, regional transportation plans, and State Implementation Plans. I.C. The Colorado Air Quality Control Commission hereby adopts and incorporates by reference the provisions of40 CFR, Part 93, as published at 62 Federal Register 158 (August 15, 1997), and as amended through 73 Federal Register 4439, January 24, 2008. Materials incorporated by reference are those in existence as ofthe date ofthis regulation and do not include later amendments. The material incorporated by reference is available fOr public inspection during regular business hours at the Office ofthe Commission, located at 4300 Cherry Creek Drive South, Denver, Colorado 80222, or may be examined at any state publications depository library. Parties wishing to inspectthese materials should contact the Technical Secretary ofthe Commission, located atthe Office ofthe Commission. II. Requirement to ceComply with the Federal Fflule The purpose of Regulation Number 10 is to fulfill the requirement in 40 CFR 51.390(b) to establish a SlP revision that addresses the provisions ofSsections 40 CFR 93.1OS(a) RegulationNumber 10 Adopted: December 15, 2011 Page2through (e), 40 CFR 93.122(a)(4)(ii), and 40 CFR 93.125(c) ofthe federal transportation conformity rule (see 40 CFR Part 93. SubpartA). Any person making a transportation conformity determination oradopting orapproving a regionally significant project shall comply with the provisions of+ftle-40 CFR, Part 93, Subpart

### A:., which rules are incorporated into 101{c) ofthis regulation by reference, except as follows:

__ _

ItA The interagency consultation procedures established in Section-Al!!!. ofthis document specify Colorado procedures and shall apply in addition to the consultation procedures established in 40 CFR Section 93.105 (a) through (e).
ti.B. Colorado-specific provisions in Section 

## !V. ofthis documentthat require obtainment of and fulfillment ofwritten commitments to SIP control measures not included in a transportation plan orTransportation Improvement Program (TIP) shall apply, pursuant to 40 CFR Section 93.122 (a)(4)(ii). ti.C. Colorado-specific provisions in Section 

### Vt. ofthis document regarding design concept and scope and enforceability ofproject-level mitigation and control measures shall apply, pursuant to 40 CFR Section 93.125 (c). 

### lit Definitions
In addition to the Federal rule definitions incorporated by reference. the following terms are defined or further delineated: COOTmeans the Colorado Department ofTransportation. Commission means the Air Quality Control Commission as defined in §Section 25-7-103(7), C.R.S.
Division means The Air Pollution Control Division, pursuant to §Section 25-7-111, C.R.S.
HotSpotAnalysis is an estimation of likely future localized criteria CO. PM10 and/or PM2.5 pollutant (or their precursor) concentrations and a comparison ofthose concentrations to the national ambient airqualitv standards. Federally required hot spot analyses assess impacts of pollutants on a scale smallerthan the entire nonattainment or maintenance area. including for example. congested roadway intersections. highway portions. ortransit terminals. using air quality dispersion modeling.
LeadAirQualityPlanningAgency (LPA)- is an agency -designated by Colorado's Governor, which shall be the agency that is charged, together with the Division, with the duty ofdeveloping the State Implementation Plan (SIP) for any nonattainment or maintenance area. Unless otherwise appointed by the Governor, the LPA for the Denver nonattainment area shall be the Regional Air Quality Council; the LPA for the Colorado Springs nonattainment area shall be the Pikes PeakArea Council ofGO\•ernments; the LPA for the 

### Ft. Collins, Loveland, and Greeley nonattainment areas shall be the North Front Range Transportation and Air Quality Planning Council, also known as the North Front Range MPO. VVhere a nonattainment or maintenance area crosses MPO boundaries. more than one agency mav serve as an LPA

.. E..g., the 8 hour Regulation Number 10 Adopted: December 15,2011 Page3Ozone Nonattainmentarea encompassing both the Denver Regional Council ofGovernments and the North Front Range MPO, as well as non MPO areas from the Upper Front Range Transportation Planning Region, is served the Regional Air Quality Council, the North Front Range MPO, and the APCD as lead planning agencies. The requirements ofthis rule shall also apply to any successors ofsuch LPAs, and to any LPAthat is subsequently created for any area, orthat othervlise assumes the duties and obligations ofthe LPAs identified in this definition. The Division, in consultation Vt'ith the municipal and county governments within the affected nonattainment area, shall perform any duty or obligation assigned to the LPA forthe Longmont nonattainment area, and for any area forwhich there is no LPA orforwhich the LPA is unwilling or unable to perform such duty or obligation. Metropolitan planning organization (MPO) is that organization designated as being responsible, togetherwith the State, for conducting the continuing, cooperative, and comprehensive planning process under 23 U.S.C. 134 and 49 U.S.C. 1607. It is the lead agency for preparing transportation plans. TIPs and transportation conformity documents. and it provides a forum for cooperative transportation decision-making. Project-level Conformity See: Hot SpotAnalysis Regional Transportation Conformityrefers to the status ofa transportation planning region's conformance to relevant State Implementation Plans (SIPs). A conforming region's transportation plans and TIPs have passed emissions tests that must indicate they are unlikely to cause, contribute to. or increase the severity and frequency offuture violations of national ambient air quality standards. Regional Conformity is demonstrated using transportation network models and air quality models and comparing projected transportation-related pollutant emissions to motor vehicle emissions budgets. orwhere budgets are notestablished. other emission limits for the region. To make a positive Conformity finding for a region. future emissions must not exceed certain limits

.. e.g., emission budgets. and transportation projects. plans and TIPs must not interfere with any transportation controlo measures required by SIPs.
Review Team is that group of interagency representatives who consult regarding Transportation Conformity assessment and findings. e.g

.. the Interagency Consultation Group (ICG)

### -Team developed by the Denver Regional Council ofGovernments. The review team's responsibilities are defined in Section IVofthis rule. Regionally Significant Projectmeans a transportation project (other than an exempt project*) for.§ facility that serves regional transportation needs. such as access to and from the area outside the region. major activity centers in the region. major planned developments such as new retail malls, sports complexes, etc

.. ortransportation terminals as well as mostterminals themselves) and would be included in the modeling ofa metropolitan area's transportation network. including at a minimum all principal arterial highways and all fixed guideway transitfacilities that offer and alternative to regional highway travel. Forthe purposes ofthis rule. regionally significant projects include only those located in nonattainment or maintenance areas. *Exemptprojects are listedin the Federal Regulation at40 CFR Part 93. 126andPart93. 127andinclude safetyimprovements. Routine ConformityDetermination is one that is made fortransportation plans and TIPs and/or their amendments involving: (1) Individual roadway projects adding less than two lane miles, with additional miles for all projects equaling <10 lane miles: and /or .(2) Projects with revisions to staging years only. and/or (3) Minortransit station plan revisions. Conformity Determinations for
RegulationNumber 10 Adopted: December 15,2011 Page4areas with Limited Maintenance Plans, which do not have emissions budgets, as such areas have been in attainmentfor20 years or longer, would also generally be considered "routine." Notwithstanding this general definition, the APCD at its discretion may request that any Conformity Determination be reviewed by the Commission. Transportation ControlMeasure (TCM) is any measure that is specifically identified and committed to in the applicable implementation plan (air quality SIP) through the process established in CAAsSection 176 (c) (8), that is either one ofthe types listed in CAAsSection 108, orany other measure designed to reduce emissions or concentrations ofair pollutants from transportation sources by reducing vehicle use orchanging traffic flow orcongestion conditions. Vehicle technology-based, fuel-based and maintenance-based measures, e.g., inspection and maintenance programs. are not TCM's. Transportation ImprovementProgram (TIP) -A prioritized program oftransportation projects funded with federal transportation funds, developed under23.U.S.C. 134(j) and 23 CFR Parts 450.324 through 450.330. The TIP must be fiscally constrained, and, in air quality nonattainment and maintenance areas, the MPO, as well as FHWA and FTA mustdetermine thatthe TIP achieves Conformity Transportation Plan in the context ofthis regulation means a fiscally constrained plan prepared by a Metropolitan Planning Organization or COOT and a local governmentorgovernments and/or regional planning commission pursuantto 23 U.S.C. 134 and as amplified by 23 CFR Ppart 450.322 (also referred to as a metropolitan transportation plan, regional transportation plan, or long-range transportation plan) forwhich a regional conformity determination is required. Outside of MPO's, the Colorado Department ofTransportation, along with local governments. develops regional transportation plans. The overall State Transportation Plan incorporates all ofthe regional plans. Transportation Planning Region (TPR) is a geographic area for which the transportation planning process required by 23 USC 134 and 135 and Section 8 ofthe Federal TransitAct must be carried out. Per Colorado regulations (CCR 43-1-1102), a TPR is a geographically designated area ofthe state forwhich a regional transportation plan may be developed pursuant to the provisions of43-1-1102 and 1103, CRS.

_I!LV,. Interagency Consultation .J.\l,.JlL.A. Roles and Responsibilities forTransportation Conformity Determinations and Related SIP Development. .J.\l,.III.A.1. This rule sets outthe minimum requirements for interagency consultation

Regulation Number 10 Adopted: December 15,2011 (Federal, State, regional and local) and resolution ofconflicts. Representatives ofthe MPOs, local transit agency, the Division, the LPA and COOT shall undertake an interagency consultation process in accordance with this section with each other and with local or regional offices of EPA, FHWA, and FTA on the development ofthe implementation plan, the list ofTCMs in the applicable implementation plan, the transportation plan, the TIP, and all conformity determinations required by this rule. The MPO shall provide notice of revisions to

Page 5Conformity documents through the normal planning process. The interagency consultation process shall be used in developing or noticing shall apply to any revisions ef..to the preceding §.D.Y_docume'nts that could affectTransportation .Qsonformity

. .!'lhiii.A.2. Itshall be the role and responsibility ofeach agency identified as a lead agency to prepare the final document and to ensure the adequacy ofthe interagency consultation process. Designation as a lead agency for any decision item shall mean that such agency shall be responsible for making the final decision on such decision item, exceptthat any such decision shall be subjectto the dispute resolution process set out in Section IV.H

. .!'lhiii.A.3. In each nonattainment area, COOT, the LPA, the Division, the MPO,

RegulationNumber 10 Adopted: December 15, 2011 local transit agency, and other agencies, as appropriate, may develop a written agreement pursuant to Section IV.G. that outlines the specific roles and responsibilities ofvarious participants in the interagency consultation process for the preparation ofSIPs, transportation plans, TIPs and conformity determinations. In the absence ofsuch a written agreement, in addition to the other duties specified in this rule, the specific roles and responsibilities ofthe various participants in the interagency consultation process shall be as follows: WIII.A.3.a. The Division shall be responsible for: (A) emissions inventories; (B) airquality modeling and/or quality-assuring air quality modeling that is performed by the MPOs orCOOT; (C) performing attainment demonstrations; (D) assisting the LPA in the development of pollutant specific implementation plan revisions; (E) providing technical and policy input

### e-n regarding emission factors and emissions budgets; and (F) updating motorvehicle emissions factors. Will.A.3.b. The LPA, orthe Division ifthere is no LPA, shall: (A) develop pollutant-specific state implementation plans for submittal to the Commission; and (B) prepare emissions budgets. WIII.A.3.c. The MPO shall: (A) develop transportation plans and TIPs, and shall make conformity determinations on transportation plans and TIPs within the applicable area, and shall be the lead agency for the development ofsuch plans and TIPs, and for such conformity determinations; (B) develop transportation and socioeconomic data and planning assumptions and provide such data and planning assumptions to the Division for use in air quality analysis; (C) perform transportation modeling and documentation oftimely implementation ofTCMs needed for conformity assessments and SIP development; and (D) monitor regionally significant projects, and ensure that all disclosed, orotherwise known, regionally significant projects are included in the regional emissions analysis. The MPO may: (E) provide technical and policy input on emissions budgets; (F) perform air quality modeling for transportation conformity purposes: and (Gf-) evaluate TCM impacts on transportation as needed.

Page6AI!!!.A.3.d. CDOT shall: (A) provide technical input on proposed revisions to motorvehicle emissions factors, (B) convene air quality technical review meetings on specific projects when requested by otheragencies oras needed, and (C) comment on transportation control measures and other aspects ofthe SIP that may affectthe operation, construction or maintenance ofthe transportation system. W!!!.A.3.e. In addition to the duties and responsibilities identified in paragraph d. above, for FHWA/FTA projects located outside of metropolitan planning areas, CDOT shall convene the appropriate parties to outline roles and responsibilities and coordinate efforts needed to: (A) perform the required conformity evaluation for such projects, and shall be identify the lead agency for such evaluations; (B) provide technical and policy input on emissions budgets; (C) develop socioeconomic data and planning assumptions for use in air quality analysis to determine conformity of projects in consultation with the affected municipal and county governments and state agencies; and (D) perform transportation modeling, regional emissions analyses and documentation oftimely implementation ofTCMs needed for conformity assessments. CDOT may also conduct airquality modeling pursuant to a conformity determination. COOT may via formal agreement, arrange to have other organizations, including MPOs perform such conformity determination tasks. W!!!.A.3.f. The Commission shall be responsible for promulgating revisions to the SIP and for determining whether a regional conformity determination should be appealed to the Governor. Wffi.B. Establishing a fEorum for Regional Conformity s.Qonsultation
AI!!!.B.1. Minimum Consultation Requirements.

RegulationNumber 10 Adopted: December 15,2011 Will.B.1.a. The MPO shall establish and maintain a forum, herein referred to as the review team, for regular consultation. The MPO may establish a committee, or use existing committees, to perform the tasks assigned to the reviewteam, provided the agencies identified in Subparagraph IV.B.1.b., below, have an opportunity to participate. Conference calls or written correspondence may be used to hold the meetings required by this rule upon the concurrence ofthe Division and any affected LPA. The review team shall comply with the minimum requirements set out in paragraph c. below, exceptthat, outside of metro planning areas, CDOT shall perform the functions assigned to the MPO. WIII.B.1.b. The review team shall consist, at a minimum, ofthe MPO as lead agency, the local transit agency, the Division, COOT, and the LPA. In addition, the review team shall include EPA, FHWAand the FTA forthe topics identified in Subsection C.1. The agencies on the review team may appoint individual staff members, ofany organizational level, to participate in the review team.

Page 7Will.8.1.c. The review team established pursuantto paragraphs a. and b. shall comply with the following minimum requirements: 1.U¥.-_,_B.1.c.(1) The MPO consultation process shall begin early enough for the review team to adequately review and provide meaningful input on drafttransportation plans, TIPs and conformity determinations, including supporting documents. W!!!.**8.1.c_,_~(2)** A schedule of meetings or a process for providing adequate notice ofsubsequent meetings shall be developed as part ofthe consultation process. The schedule of meetings shall be frequent enough to address all significant issues in a timely fashion. W!!!.B.1.c.(3) The MPO shall establish an agenda for each meeting, and shall include in such agenda any issue or item upon the request ofany member. W!!!.B.1.c.(4) Any member may, at any time, request a meeting through the consultation process. Upon such a request, the MPO should schedule a meeting as soon as practicable.**~!!!_,_B.1.c.(5)** The MPO shall respond in written form to written comments received from any ofthe members ofthe review team copying all reviewteam members. Wffi.C. Topics for consultationConsultation Wffi.C.1. The review team shall address the following topics in the manner

RegulationNumber 10 Adopted: December 15,2011 provided. Wffi.C.1.a. Evaluating and choosing a model (or models) and associated methods and assumptions to be used in regional emissions analyses. The MPO shall be responsible for selecting the transportation modeling procedures to be used within its modeling domain. The Division shall be responsible for selecting the emissions or air quality modeling procedures used for performing regional emissions analyses for conformity determinations and for SIP revisions. Wffi.C.1.b. Determining which minor arterials and othertransportation projects should be considered "regionally significant" forthe purposes of regional emissions analysis (in addition to those functionally classified as principal arterial or higher orfixed guideway systems or extensions that offer an alternative to regional highway travel), and which projects should be considered to have a significant change in design concept and scope from the transportation plan orTIP.

Page8Regulation Number 10 .J¥..!!LC.1.b.(1) The review team shall review the transportation network and identify minor arterials that serve regional transportation needs. Wl!!.C.1.b.(2) Review the transportation projects disclosed to the MPO pursuant to Section IV.E., and all transportation projects otherwise known to the members that may be regionally significant projects, and identify as regionally significantthose projects that are on a facility which serves regional transportation needs and that would normally be included in the modeling ofthe metropolitan area's transportation network. W!!!.C.1.b.(3) Identify any significant changes in design concept and scope ofany project from the transportation plan, TIP, or regional emissions analysis supporting the conformity determination for a conforming TIP, upon the request ofany participant in the consultation process, orany recipient offunds designated underTitle 23 orthe Federal TransitActwith authority to adopt orapprove ofthe subject regionally significant project. WIII.C.1.c. Evaluating whether projects otherwise exempted from meeting the requirements ofthis subpart (see 40 CFR Sections 93.126 and 93.127) should be treated as non-exempt in cases where potential emissions impacts may existfor any reason. W!!!.C.1.c.(1) Atthe request ofany participant in the consultation process, the review team shall determine whether projects otherwise exemptfrom meeting the requirements ofthis subpart should be treated as non-exempt in cases where potential emissions impacts may existfor any reason. W!!!.C.1.c.(2) For each non-attainment area that is outside ofa metropolitan planning area, COOT shall consult with the review team to identify categories ofexempt projects that should be treated as non-exemptfor such area. WIII.C.1.d. Making a determination, as required by 40 CFR Section 93.113(c)(1), whether past obstacles to implementation ofTCMs implementation which are behind the schedule established in the applicable implementation plan have been identified and are being overcome, and whether State and local agencies with influence over approvals orfunding forTCMs are giving maximum priority to approval or funding forTCMs. W!!!.C.1.d.(1) The LPA and the Division shall provide the MPO with information necessary to develop a list ofthe TCMs, which are in the applicable implementation plan. The LPA may also request that the MPO, COOT, the public transit agency, orany other

Adopted: December 15, 2011 Page9 

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### SYGil a TCM reaffirm 

### tfle its commitmentto implementthe applicable a TCM pursuantto the schedule established in the SIP. W!!!.C.1.d.(2) The MPO, after consultation with the other participants in the consultation process review team. shall determinewhether 

### .past obstacles to implementation· ofTCMs which are behind the schedule established in the applicable implementation plan t:lahave been identified and are being overcome, and whether State and local agencies with influence over approvals orfunding forTCMs are giving maximum priority to approval or funding for TCMs. For each such determination, the MPO shall identify the past obstacles, the steps taken to overcome 

### SYGil obstaclesthem, the State and local agencies with influence over approvals or funding, the basis for finding that such agencies are giving maximum priority to such approval or funding, and a revised schedule for the implementation ofthe TCM. W!!!.C.1.d.(3) The MPO shall report a determination that past obstacles to implementation ofaany situation in which it determines that obstacles to implementing a -TCM which is behind schedule have not been identified orare not being overcome, orthat State and local agencies with influence over approvals or funding ofsuch TCMs are not giving maximum priority to approval orfunding forTCMs. The report shall be provided, to the agency sponsoring the TCM, the Division, the Commission and the Governor. The Commission may schedule the matterfor a hearing toregarding enforcement. and/or remove OF replacementWGA--ofTCMs. W!!!.C.1.e.--_Notification oftransportation plan orTIP revisions or amendments, which merely add ordelete exempt projects listed in 40 CFR Section 93.126 or93.127. The MPO shall provide notice through the normal planning process_, prior to consideration ofany proposed amendmentthat adds ordeletes exempt projects listed in 40 CFR Section 93.126 or 93.127 to orfrom the transportation plan or TIP. W!!!.C.1.f.--_Process for providing final documents and supporting information to each agency after approval or adoption. The MPO shall transmit make available final TIPs and transportation plans to participants in the consultation process. W!!!.C.1.g._--Choosing conformity tests and methodologies for isolated rural nonattainment areas, as required by 40 CFR Section 93.109(1).

Page 10The Division and COOT shall choose, in consultation with the members ofthe review team, the requirements and methodologies to be used to comply with 40 CFR Section 93.109. Ifthe Division and COOT cannot agree, the issue shall be referred to the Commission for review at a public meeting pursuant to Section Will.H. The Commission may escalate the matterto the Governoras provided in Section W!!!.H. W!!!.C.2. The review team shall address the following topics in the manner

RegulationNumber 10 Adopted: December 15, 2011 provided. Outside ofthe metropolitan planning areas, COOT shall perform the tasks assigned to the MPO, excepting conformity determination tasks that it contracts outto other entities. Wlli.C.2.a. Evaluating events which will trigger newconformity determinations in addition to those triggering events established in 40 CFR 93.104. W!!!.C.2.a.(1) The MPO may identify events thatwould trigger new conformity determinations in addition to those triggering events established in 40 CFR Section 93. 104, and the pollutant specific SIPs. Alternatively, the Commission may promulgate regulations or revise the SIP to identify events in a mannerthat would trigger a new conformity determination. W!!!.C.2.a.(2) The MPO will consult with the review team to evaluate whether events that may trigger a newconformity determination pursuant to 40 CFR Section 93.104 or a pollutant specific SIP have occurred. W!!!.C.2.b. Consulting on emissions analysis fortransportation activities that cross the borders of MPOs or nonattainment areas or basins. In the eventthat contiguous MPOs are created within the state, the affected MPOs shall, in consultation with the participants in the consultation process, establish a consultation procedure for consulting on emissions analyses for transportation activities that cross the borders of MPOs or nonattainment areas orair basins. W!!!.C.2.c. Determining conformity of projects outside the metropolitan area and within the nonattainment or maintenance area. In the eventthat a nonattainment or maintenance area is created in the state that includes a metropolitan planning area or areas, but such metropolitan planning area(s) does not include the entire nonattainment or maintenance area, the affected MPOs, in consultation with the participants in the consultation process, shall establish a procedure for consulting on emissions analyses for transportation activities that cross the borders of MPOs or nonattainment areas orair basins.

Page 11WIII.C.2.d. Process for consulting on the design, schedule, and funding of research and data collection efforts and regional transportation model development by the MPO. The MPO, in consultation with the review team shall determine the design, schedule and funding ofsignificant research and data collection efforts and regional transportation model development. Wlii.C.3.**~ Hot-s~pot**  a8nalysis: (1) Evaluating and choosing a model (or models) and associated methods and assumptions to be used in hot-spot modeling; and (2) identifying, as required by 40 CFR Section 93.123(b), projects located at sites in nonattainment or maintenance areas that have vehicle and roadway emission and dispersion characteristics essentially identical to those at sites where violations have been verified by monitoring, and therefore require quantitative pollutant hot-spot analysi§. COOT, the APCD, USEPA, and USDOT will: WIII.C.3.a. Determine which types of projects should be evaluated for localized hot spots. CDOT, subjectto concurrence by the Division, shall identify the projects orcategories ofprojects that shall be evaluated for potential hot spots. WIII.C.3.b. Evaluate and choose a model (or models) and associated methods and assumptions to be used in hot-spot analyses. COOT shall be responsible for selecting the hot spot model to be used for conformity determinations. Pi!!!.D. Process for assuming the location and design concept and scope of projects disclosed to the MPO as required by paragraph (E) ofthis section but '.Vhose in cases where sponsors have notyet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of40 CFR Section 93.122. W!!!.D.1. The MPO shall contactthe sponsor ofany project disclosed to the MPO pursuant to Section W!!!.E., butwhose sponsors have notyet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of40 CFR Section 93.122, and shall request that such sponsor develop the location and design concept and scope ofthe project for the purpose of including the project in the regional emissions analysis. W!!!.D.2. Ifthe sponsor is unwilling or unable to provide these features to the MPO

RegulationNumber 10 Adopted: December 15, 2011 in a timely fashion, the MPO shall propose reasonable assumptions about such features, and shall provide CDOT, the Division, the LPA, the project sponsor, and any recipient offunds designated underTitle 23 U.S.C. orthe Federal Transit Act that has the authority to adopt or approve ofthe project, with·a written description ofthe proposed assumptions. Following consultation with such agencies the MPO shall make assumptions aboutthe location and design concept and scope ofthe projectthat are reasonably calculated to estimate the emissions associated with such project. Such assumptions shall be based on the

Page 12information and comments aboutthe project received by the MPO.

W!!!.E. Process to ensure that plans for construction of regionally significant projects

### wJ:HGR that are not FHWA/FTA projects (including projects forwhich alternative locations, design concept and scope, orthe no-build options are still being considered), including those by recipients offunds designated underTitle 23 U.S.C. orthe Federal TransitAct, are disclosed on a regular basis, and to ensure that any changes to-tAese such plans are immediately disclosed.

!!!.F. =====::.!l!!ll.:.f.E;...L1._Priorto conducting a conformity analysis, the MPO shall ensure that COOT and each municipality, county and public transit agency within the metropolitan planning area, and each special district, improvement authority and regional agency with theapproval authority to adopt orapprove_-Gffor transportation projects within the metropolitan planning area,-aFe is notified ofthe requirement to include regionally-significant projects, and changes to plans for such projects, in the regional emissions analysis. Consultation procedures for development ofState Implementation Plans.:.
Wffi.F.1. Minimum Consultation Requirements- SIP developmentand revision.
In each nonattainment or maintenance area, the LPA orthe Division shall establish and maintain a reviewteam for regular consultation to ensure thatthe transportation community is involved in the development ofthe implementation plans. Such reviewteam shall also be established to develop and review any SIP revision that includes a new or revised mobile source emissions budget, orthat requires a new or revise<;! attainment or maintenance demonstration. The review team may be part ofa larger consultation procedure established by the LPA or Division to include all sectors ofthe community (in addition to the transportation community). The consultation procedure shall comply with the minimum requirements listed below. Ifthe review team is established by the Division, the Division shall perform the tasks assigned to the LPA. WIII.F.1.a. The review team shall consist of representatives ofthe MPO, the Division, COOT, the EPA, FHWA, FTA, and the public transit agency. W!!!.F.1.b. The LPA shall begin consultation meetings early enough in the process for review team members to adequately review the modeling used to support the SIP, and to review the proposed control measures. The LPA must provide an opportunity to review copies ofthe draft implementation plan, including supporting documents, to the other members ofthe review team, and shall provide at leastthirty days forthe submission ofcomments on the draft SIP priorto adoption by the LPA. WIII.F.1.c. A schedule of meetings or a process for providing adequate notice ofsubsequent meetings shall be developed as part ofthe consultation process. The schedule of meetings shall be frequent enough to address all significant issues in a timely fashion.

Regulation Number 10 Adopted: December 15,2011 Page 13 

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### WIII.F.1.d. The LPA shall establish an agenda for each meeting, and shall include in such agenda any issue or item upon the request ofany participant. WIII.F.1.e. Any member may, at any time, request a meeting to consultwith the LPA and the other participants. Upon such a requestthe LPA should schedule a meeting as soon as practicable. WIII.F.1.f. The LPA shall respond in written form to written comments received from any ofthe participants. Wl!!.F.1.g. SIPs and SIP revisions proposed by the LPA shall be subjectto final approval by the Commission following a public hearing. The Division shall provide final copies ofany SIP or SIP revision to the MPO, COOT, the LPA, the public transit agency, the EPA, the FHWA, and FTA. WIII.F.2. The LPA shall submit a list ofTCMs included in the proposed SIP to the MPO, COOT and each affected local agency or other sponsoring agency at least thirty days priorto approval ofthe SIP or SIP revision by the governing board of the LPA. WIII.F.3. The SIP development procedures set out in this Section IV.F. shall be in addition to any other rules or regulations applicable to SIP development or SIP revisions. Nothing in this Section Wl!!.F. shall be construed to supersede, alter or amend such other rules, or to incorporate such other requirements into the SIP. Will.G. Agreements further describing consultation procedures.:. Wl!!.G.1. The Division may enter into written agreements with the members ofthe review team to clarify and further develop the procedures for conformity determinations described in this Section Will. The Division may also enter into written agreements with the LPA and members ofthe committee established pursuant to Section Wl!!.F. to further clarify ordevelop the SIP development procedures. The members ofthe review team may, by mutual agreement, delegate the tasks assigned to them underthis rule to other members. Any member ofthe review team delegating a task shall conduct reasonable oversight ofthe delegated task as necessaryto ensure proper performance. Wl!!.G.2. Nothing in this regulation shall be construed to relieve the parties ofthe obligations set out in agreements entered into priorto the effective date ofthis rule, except to the extentthat the provisions ofsuch agreements are inconsistent with this rule. The Commission and Division shall continue membership on any MPO committee orcouncil as provided in any such agreements. Will.H. Review ofConformity Determinations by the public, the Air Quality Control Commission, and resolution ofconflicts.

RegulationNumber 10 Adopted: December 15, 2011 Page 14

### Wffi.H.1. Per, 40 CFR Section 93.105(e), agencies making conformity determinations-i.e

.. MPO's or CDOT--must provide for public review and comment priorto adopting new or amended transportation plans-and programs. Wffi.H.1.a. Agencies making conformity determinations must provide reasonable public access to relevant documents, consistentwith 23 CFR Section 450.316(a). Any charges imposed for public inspection orcopying ofdocuments would be consistent with USDOT regulations at 49 CFR Section 7.43. Wffi.H.1.b. Agencies making conformity determinations must specifically address in writing any public comments asserting that a regionally significant project is not reflected in the emissions analysis supporting a positive conformity finding. Wffi.H.1.c.:. Agencies making conformity determinations shall provide opportunity for public involvement in conformity determinations for projects where otherwise required by law. Wffi.H.2. The Division shall make a finding regarding which Conformity Determinations are routine. perthe definition setforth in this regulation. Routine Conformity Determinations regarding a TIP or Plan shall be reviewed by the Division. For instances in which the Division agrees that a positive Conformity Determination has been made. it shall provide notice ofconcurrence with those determinations

.. Each conformity determination on a TIP or plan shall be presented to the Commission for its revie'N priorto submittal to FHWA.. The Division shall make the determination regarding whether a Conformity Determination is routine. Ifa Conformity Determination is non-routine. it shall be brought before the Commission for its review and possible concurrence. The Commission intends to conduct public meetings to review non-routine conformity determinations in accordance with the applicable provisions ofthe Air Quality Control Commission Procedural Rules, and reserves the right to schedule such meetings as permitted by the Commission's schedule and as necessary to comply with such procedural rules. However, this paragraph shall not be construed to incorporate such procedural rules into the SIP. No violation ofsuch procedural rules shall be construed as a violation ofthe SIP, except where such procedural rules otherwise has been incorporated into the SIP. Wffi.H.3. Upon request ofany member ofthe review team, a conformity determination on an FHWA project located outside ofa metropolitan planning area shall be presented to the Commission prior to submittal to FHWA ifthere is a conflict that cannot be resolved by the review team. The request for such review must be filed as soon as practicable and shall not be filed any laterthan the first regularly scheduled Commission meeting following the final conformity determination. WIII.H.4. ln-_accordance with 40 CFR s§ection 93.105(d), conflicts among State

RegulationNumber 10 Adopted: December 15,2011 

### agencies or between State agencies and an MPO may be escalated to the Governor. Such conflicts would render a Conformity Determination non-routine

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# [ tand subjectto review by the AQCC. The fourteen calendar-days in which to appeal a conflict to the Governor shall commence upon review ofa conformity determination by the Commission pursuant to this Subsection H., except as provided below at Sections (a) and (b). Ifthe State appeals to the Governor, the final conformity determination must have the concurrence ofthe Governor. Ifthe Commission does not appeal to the Governorwithin 14 days, or as provided below at Sections (a) and (b), the MPO orCOOT may proceed with the final conformity determination. WIII.H.4.a. The Commission may extend the beginning ofthe time to escalate a conflict to the next regularly scheduled Commission meeting if the entity making the conformity determination amends such determination during the fourteen-day period preceding the Commission meeting. WIII.H.4.b. Upon the agreement and concurrence ofthe entity making the conformity determination, the Commission may extend the beginning of the time to escalate a conflict as necessary to accommodate further consultation among the agencies. Will.H.4.c. For purposes ofproject level conformity determinations in isolated rural nonattainment and maintenance areas, a "final conformity determination" shall be taken to mean COOT's completed conformity analysis and recommended finding ofconformity to FHWA. 

## !V. Emission reduction creditfor certain control measures. 

## !V.A. Pursuant to 40 GFR Section 93.122(a)(4), emissions reduction credit from implementation plan control measures that are not included in the transportation plan and TIP and that do not require a regulatory action in orderto be implemented may not be included in the emissions analysis unless the conformity determination includes written commitments to implementation from the appropriate entities. !V.B. Any entity making a written commitmentto perform a control measure not included in the transportation plan orTIP shall fulfill such written commitment ifthe control measure is used for emissions reduction credit in a regional emissions analysis. 

### 'J..AY... Enforceability ofdesign concept and scope and project-level mitigation and control measures. 

## 'J.AY...A. Pursuant to 40 CFR Section 93.125 (c), where project-level mitigation is conditional to a positive conformity determination, written commitments to such mitigation measures must be obtained. Project sponsors shall comply with these commitments. VUVI. Statements of Basis, Specific Statutory Authority, and Purpose VUVI.A. Amendments Adopted October 15, 1998 The change to Regulation Number 10, "Criteria for Analysis ofConformity," Part B, "Transportation Conformity" will establish criteria and procedures for making conformity RegulationNumber 10 Adopted: December 15,2011 Page 16determinations on transportation plans, transportation improvement programs (TIPs), FHWA/FTA projects, and consultation procedures for major revisions to the State Implementation Plan (SIP). Federal Requirements
Pursuant to 40 CFR Section 51.390, Colorado must submitto the EPA and the U.S. Department ofTransportation (DOT), a revision to the SIP to establish criteria and procedures for DOT, metropolitan planning organizations (MPOs), and state and local transportation and airquality agencies to assess the conformity oftransportation plans, programs, and projects, consistent with the requirements of40 CFR, Part 93, Subpart

### A
The states may incorporate the substantive criteria for making conformity determinations set out in the federal rule, into the state rule by reference. The rule adopted bythe Commission takes advantage ofthis opportunity and incorporates the criteria in 40 CFR Part 93, SubpartA by reference.
The federal rule also requires the states to develop procedures for interagency consultation on transportation conformity determinations, and for SIP revisions. The federal rule establishes minimum requirements for such consultation procedures, but does not actually establish any procedures. Pursuant to 40 CFR Section 51.390 and 93.105, the states mustdevelop and adopt such procedures, and submitthe procedures to EPAfor inclusion in the SIP. The rule adopted by the Commission establishes procedures for interagency consultation, and addresses each ofthe topics required by 40 CFR Section 93.105. The consultation procedure established in the rule is intended to create a meaningful interagency consultation process that complies with the federal requirements, butthat provides the flexibility necessary to meetthe needs ofthe Colorado Department ofTransportation and the various MPOs in the State. The interagency consultation requirements track the minimum federal requirements, and are not otherwise more stringent than the federal requirements. The only provision in the rule that differsfrom the federal rule is the definition ofthe term "regionally significant project" contained in the state rule. The state rule includes a definition applicable to rural nonattainment areas that do not conduct modeling ofthe area's transportation network. The federal rule appears to assume that all nonattainment areas conduct such modeling. The specific definition in the rule for rural areas is necessary to reconcile the federal rule with the general practice in rural nonattainment areas, but is not more stringentthan federal requirements. Contested Issues One MPO urged the Commission to adopt a rule requiring a public meeting to be held prior to final action by the MPO. The rule is written to allowflexibility, so that MPOs have the option of coming to the Commission either before oraftertheirgoverning board takes final action on the conformity determination. However, the Commission strongly encourages the MPOs to submit a draft conformity determination to the AQCC for comment, so thatthe MPO can take the Commission's comments into account as early in the process as possible. Statutory Authority

RegulationNumber 10 Adopted: December 15, 2011 Page 17The transportation conformity rule is adopted underthe Commission's general authority to adopt a SIP under§Section 25-7-105(1), C.R.S. (1997). Findings pursuant to §Section 25-7-110.8 The portion ofthe rule incorporating the federal criteria for making conformity determinations is exemptfrom the requirements of§Section 25-7-110.8, C.R.S. (1997). The consultation requirements are administrative in nature, and are exemptfrom the requirements of§Section 25- 7-110.8(1)(b), C.R.S. The interagency consultation requirements establish a procedure for ensuring that the federal, state and local airquality agencies charged with protecting human health and the environment are consulted during the transportation conformity process. In this way, the rule will bring about reductions in risks to human health orthe environmentthatwill justifythe cost of implementation ofthe rule. The rule adopted by the Commission complies with the minimum federal requirements and maximizes the air quality benefits ofthe regulation in the most cost-effective manner. No other party proposed any alternative rule thatwould accomplish this result in a more cost-effective manner. :VUVI.B. Amendments Adopted November20, 2008 Transportation Conformity Update Background This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements ofthe Administrative Procedures Act, Section 24-4-103, C. R.S. and the Colorado Air Pollution Prevention and Control Act, Section 25-7-110.5, C.R.S.
Basis and Purpose These revisions to "Part B, "Transportation Conformity," update the Regulation to incorporate by reference revisions to the federal rule, and to recognize Colorado-specific practices. The incorporations by reference adopt revisions to federal conformity regulations adopted by the EPA since 1997. Most ofthese revisions have streamlined processes and relaxed requirements. The revisions add language that addresses 40 CFR Section 93.122(a)(4)(ii) regarding obtaining and ensuring the fulfillment ofwritten commitments to SIP control measures needed to achieve or maintain national ambient air quality standards that are not included in transportation plans or programs. These revisions also add language that addresses Section 93.125(c) regarding obtaining and ensuring the fulfillment ofwritten commitments to transportation project mitigation measures. These are not newfederal provisions, butthey are newly required to be "addressed," i.e., made explicit in state conformity implementation plans. These revisions also make non-substantive changes including correcting citations, clarifying language, and striking of unnecessary orconfusing language. Federal Requirements

Regulation Number 10 Adopted: December 15,2011 Page 18Pursuantto 40 CFR Section 51.390, Colorado mustsubmitto the EPA and the U.S. Department ofTransportation (DOT), a revision to the SIP to establish criteria and procedures for DOT, metropolitan planning organizations (MPOs), and state and local transportation and airquality agencies to assess the conformity oftransportation plans, programs, and projects, consistent with the requirements of40 CFR, Part 93, Subpart

### A. The states may incorporate the substantive criteria for making conformity determinations set out in the federal rule, into the state rule by reference. The rule adopted by the Commission takes advantage ofthis opportunity and incorporates the criteria in 40 CFR Part 93, SubpartA by reference.
The federal rule also requires the states to develop procedures for interagency consultation on transportation conformity determinations, and for SIP revisions. The federal rule establishes minimum requirements for such consultation procedures, and requires States to establish these consultation procedures, including consultation with the public and conflict resolution at40 CFR, Sections 93.105 (c) and (d). Pursuantto 40 CFR Sections 51.390 and 93.105, the states must develop and adopt such procedures, and submitthe procedures to EPA for inclusion in the SIP. Pursuant to 40 CFR Sections 93.122(a)(4)(ii) and 93.125(c), States mustalso address the obtainment and enforceability ofwritten commitments to SIP control measures not included in transportation plan as well as transportation project mitigation measures. Statutory Authority
This transportation conformity rule is adopted underthe Commission's general authority to adopt a SIP under§Section 25-7-105(1), C.R.S. (1997). Findings pursuant to §Section 25-7-110.8 The portion ofthe rule incorporating the federal criteria for making conformity determinations is exemptfrom the requirements of§Section 25-7-110.8, C.R.S. (1997). The revisions addressing public consultation, conflict resolution, written commitments to SIP control measures not contained in transportation plans and project-level mitigation conditional to a conformity determination track the requirements in federal rules and are mandated by federal law. These revisions provide forwritten commitment to incorporate mitigation measures into project design for transportation projects. Mitigation measures are frequently necessary to reduce localized emissions associated with transportation project construction, but rarely relied upon for conformity determinations. Where such commitments are necessary for a positive conformity determination, they must be enforced so asto reduce risks to human health orthe environment, which justifies the cost of implementation ofthe rule. The rule adopted by the Commission complies with the minimum federal requirements and maximizes the air quality benefits ofthe regulation in the most cost-effective manner. No other party proposed any alternative rule that would accomplish this result in a more cost-effective manner. VI.C. Amendments Adopted December 15. 2011 Basis and Purpose The purpose ofthese amendments is to streamline the transportation conformity process by allowing the Colorado Air Pollution Control Division to provide concurrence with routine transportation conformity determinations without the need for a public hearing before the Colorado Air Quality Control Commission. This change to the conformity process is allowed for
Regulation Number 10 Adopted: December 15,2011 Page 19underfederal law and will reduce the burden on the AQCC, the Division and transportation planning organizations, while ensuring that air quality requirements are met. In addition, the amendments include a number ofclarifying provisions thatwill help facilitate the implementation ofthe regulation. In addition to streamlining the transportation conformity process, these amendments include a numberof housekeeping changes made atthe request of EPA, including removing incorporations by reference to federal general conformity regulations. Inclusion of these requirements in Regulation Number 10, and the State Implementation Plan is not required and is unnecessary to the general conformity process. Specific Statutory Authority The Commission promulgates these regulatory changes pursuant to its authority under Section 25-7-105(1)(a)(l), C.R.S. to adopt a comprehensive state implementation plan that meets the requirements ofthe federal Clean AirAct. Findings Pursuant to Section 25-7-110.8 The revisions to Regulation Number 10 are administrative in nature and are not intended to reduce air pollution. Rather. the revisions are intended to streamline the transportation conformity process and clarify existing requirements. while maintaining the air quality benefits of the existing rule. Accordingly, the requirements ofSection 25-7-110.8. C.R.S. do not apply to this rulemaking.

RegulationNumber 10 Adopted: December 15, 2011 Page 20

# ColoradoAirQuality Control Commission MeetingMinutes
40 CFR Part51 Appendix V2.1(g) I I 

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John W. Hickenlooper, Governor Christopher E. Urbina, MD, MPH, Executive Director and ChiefMedical Officer 

### COLORADOAIR QUALITY CONTROL COMMISSION http://www.cdphe.state.co.us 4300 Cherry Creek Drive South OED-OLRA-A5 Denver, Colorado 80246-1530 Phone (303) 692-3100 Fax (303) 691-7702 TDD (303) 691-7700 ColoradoDepartment ofPublic Health and Environment 

# ColoradoAir Quality Control Commission

Location:

MembersPresent:

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Commission Staff:
Division Staff: 

# December15,2011 MEETING MINUTES
Colorado Department ofPublic Health & 

### Environment 4300 Cherry CreekDrive South, SabinRoom Denver, CO 80246 Ashley Campsie BarbaraRoberts
Robert Arnott
Mike Silverstein
Will Allison Pat McLaughlin Teresa Coons Jon Slutsky
Saeed Barhaghi
TheresaMartin
Lisa Silva GordonPierce John Loewy Jim Wilson
Dawn Meyers

Lisa Clarke


### Attorney General's Office: Andrea Gelfuso-Goetz

CALLTO ORDERAND DETERMINATION OFA QUORUM 

### Chair Roberts called the meeting to order at 9:05 AM and determined that a quorum of Commissioners was nowpresent with six Commissioners.

APPROVAL OFMEETINGMINUTES FOROCTOBER

### 20,2011 ChairRoberts askedthe Commissionifthere were any modifications to the minutes. Roberts had one edit changingTraditional Agendato Regular Agenda. Motion: Moved: Second: Discussion: Carried: To approve the October 20, 2011 Meeting Minutes Commissioner Campsie CommissionerCoons none 6-0 ;;

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### ChairRoberts asked ifthere were any members ofthe public who wished to make a commenton any airpollution issue not onthe agenda. There were no public comments. CONSENTAGENDA REQUEST FOR PUBLIC HEARING 

### • Pikes Peak Area Council ofGovernments (PPACG) Conformity Determination

RULEMAKING HEARINGS 

### • RegulationNumber 9: Smoke ManagementDistributionofCosts as preparedby the Division • PM2.5 Interstate Transport State ImplementationPlan as preparedbythe Division • Steamboat Springs PMlO Maintenance Plan as preparedby the Division
Motion: Moved: Second: To adoptthe ConsentAgendaitems CommissionerWilson Commissioner Slutsky Discussion: none Carried: 6-0
REGULARAGENDA RULEMAKING HEARING 

### Regulation Number 10: Criteriafor Conformity The Commissionconsidered streamliningthe transportation conformityprocessbyallowingthe Colorado Air Pollution Control Divisionto provide concurrence withroutine transportation conformity determinations withoutthe need for a publichearingbefore the Colorado Air Quality Control Commission. This changeto the conformityprocess is allowed for under federal law and will reduce the burden onthe Commission, the Division andtransportationplanning organizations while ensuringthat airqualityrequirements are met. The Commission also consideredproposedrevisions to the SIP, AQCC'sRegulationNumber 10 and the Procedural Rules. The Commissiondiscussedhowpublic concerns wouldbe addressed orbroughtforward to the Commission. Allison notedthatthis couldbe discussed duringthe Director's Report as occurrenceshappened.
Motion: To adoptthe revisions to RegulationNumber 10 andthe Commission's Procedural Rules regarding conformity, as presentedbythe Divisionwiththe amended StatementofBasis, Specific Statutory Authority and Purpose for RegulationNumber 10, andto correctthe typographical erroridentifiedby the Division. In addition, the Commission directsthatthe Lead Planning Agency definition in RegulationNumber 10 berevisedto eliminate confusing language and errors. Moved: Commissioner Slutsky Second: CommissionerWilson Discussion: none Carried: 6-0

2BRIEFINGS, DISCUSSIONS AND REPORTS 

### Rocky MountainNationalPark(RMNP) The Division, National Park Service, and Environmental ProtectionAgencyhave been working together onthe RMNP Initiative, a collaborative effortto reduce nitrogen deposition in Rocky MountainNational Park. Lisa Clarke ofthe Division introduced SusanJohnson-Policy Analyst ofthe Air Resources DivisionNPS, Carol McCoy-Chiefofthe AirResources DivisionNPS, Jim Cheatham-Biologist for the RMNP, and John Mack-ChiefofNatural Resources for the RMNP. Clarke and Mackbriefedthe Commissiononthe progress ofthe tasks outlined intheNitrogen Deposition Reduction Planendorsedbythe Commission in 2007 and the ContingencyPlan adopted in 2010, as well as recent activities ofthe MOU agencies. Clarkeprovided a handoutto the Commission and noted thatthe attachments helped illustrate the activities ofthe RMNP Agriculture subcommittee. The Commissionreceived public commentfrom Robert Collier representing the Environmental Defense Fund. 

### HB09-1199: ColoradoHealthyForests andVibrantCommunitiesAct As a follow-up to the Commission'srequest from the March 2011 briefing, PatMcLaughlin of the Divisionprovidedthe Commission a status update regarding implementation ofthe recommendations from the HB09-1199 study. McLaughlin described the Division'sprescribed fire efforts, the innovations and program improvements implementedthis past year, and the steps going forward. DeputyRegional ForesterBrian Ferebee ofthe Rocky Mountain Region US Forest Service lead the USPS'spresentation and was assisted by Glenn Casamassa- Forest Supervisorfor the Arapaho-RooseveltNational Forest and the PawneeNational Grassland, Paul Langowski- regional Branch Chieffor Fuels and Fire Ecology, JeffSorkin- Air Program Manager for this region and the IntermountainRegion ofthe US Forest Service and Cheri Ford who serves as a liaison betweenthe Forest Service and Colorado. Casamassapresented a status updateto the Commission on collaborative efforts with the Divisionregarding changes to the Colorado Smoke ManagementProgram since the March 17, 2011 Commissionhearing. Casamassanoted that to be successful there was a need to move forward ona more objective and transparentpermittingprocessthat allows for an appropriate increase in prescribed fire and to develop an approach to smoke managementthat considers bothprotection ofpublic health and the needs ofColoradans for reduced hazardous fuels in ourforests. Ferebee noted thatthey would like to providethe Commissionwith semi-annual updates and some field tours ifthey're interested.
The Commission conductedbusinessduring the lunch hourwith a discussion abouttheir strategicplanningprocess with LEANconsultantBarbaraShecter andRozBedell Operations Director for CDPHE.

REGIONAL AIR QUALITY COUNCIL (RAQC)REVIEW 

### Ken Lloyd briefedthe Commissionregarding the strategytables that were discussed and approved at the RAQC'sNovembermeeting. Lloyd noted that eventhough additional mandatory measures as part ofa federally-enforceable SIP were notrequired atthis time in the Denver/NorthFront Range nonattainment area, the region still faced a challenge to achieve the 2008 standard by 2015 and additional short-term actions wouldbe prudentto ensure attainment.

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### Lloyd notedthat additional measures would likely be neededbeyondthe 2015-2020timeframe in orderto maintain attainment withthe current standard and address apossible more stringent standard inthe future and in light ofthe need to continue ozone reductionmeasures inthe shortterm, the RAQC asked its various strategy subcommitteesto reconvene, review the listed strategies already developed, and identifyrecommended short-term activities and actions. 

### MonitoringBriefing The Divisionbriefedthe Commissiononmonitoring sites operatedbythe Division and others. The briefing addressed EPAmonitoring and siting requirements, why sites are located in certain places and not in others, what pollutants are monitored, andpossibilities for additional monitoring. Newmonitoringrequirements from EPAwere also addressed andthe Division's currentplans to meetthose requirements. Jannette Whitcomb, Environmental Managerwiththe City ofAspen monitoredthe briefing viaconference call. 

### CommissionerInformational Items Coons discussed EPA Advisory Committeemeeting issues: nutrient standards guidance process

- Colorado is onthe forefront; wildfire andprescribedbumsinterms ofexceptional events; mercury legislation and howitwill impact Colorado; formal resolution and concerns about ozone setback

- what does that do to credibility; interagencycollaboration; formal resolution/approval agency-wide effortto incorporate environmental impacts; andwater subcommittee gettingbriefingregarding fracking. Slutskytouredthe JBS Five Rivers Cattle Feeding to see howtheir gasifierturns manure into energy. Basically, the systembums feedlot manureto produceheatthat is intumusedto produce steamenergy 

### Division Director's Report- Will Allison • Received letter from EPA for nonattainment area and approval ofexactboundaries proposed • EPA moving forward withproposal for oil and gas NSPS

- green completionsbeingthe most important • OGCCreleased fracking rules and mustdisclose chemicals/chemical families • EPA is coming outwith new guidance onhowto handle S02 • Rocky Mountain Steel Mill permit finalized • WildEarth Guardians seekingEPAnonattainment designations for PM exceptional events • EPA to finalize its utility MACT 

### Attorney General's Report- AndreaGelfuso-Goetz • CMACORA- courtshave decidedthat emails are confidential • CMAvs. Urbina- briefscheduled for March • Climate Change case was won- no public trust in air 

### Administrator's Report- Mike Silverstein • Review February and March agendaitems • Review ofAction Items from today's Commissionmeeting • Informed Commissionthatreview ofthe Procedural Rules wouldbegin in March • Update onthe Commissionwebsiteredevelopmentwould occur atthe February meeting Adjourn at 3:35PM 4

# Legal Opinion ofthe Colorado StateAttorney General
40 CFR Part51 Appendix V2.1(c) and(e) RegulationNumber 10



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# lJOHN W. SUTHERS Attorney General CYNTHIA H. COFFMAN ChiefDeputy Attorney General DANIEL D. DOMENICO SolicitorGeneral 

### STATE OFCOLORADO DEPARTMENT OF LAW OFFICE OFTHEATTORNE\' GENERAL STATE SERVICES BUILDING I525 Sherman Street

- 7th Floor Denver, Colorado 80203**Phone(303)~4500** Fax (303) 866-5691

TrackingNumber: 2011-00669
OPINION OFTHEATTORNEY GENERAL RENDERED IN

CONNECTIONWITHTHE RULES ADOPTED BY THE Air Quality ControlCommission ON 12/1512011

5 CCR 1001-12 REGtJLATION No. 10 CRITERIA FORANALYSIS OFCONFORMITY

The above-referenced rules were submitted to this office on 12/16/2011 as required by section 24-4-103, C.R.S. This office has reviewed them and finds no apparent constitutional or legal deficiency in their form or substance.
Dtcember 22, 2011 l.a:45:32 MST

JOHN W. SUTHERS Attorney General by DANIEL D. DOMENICO SolicitorGeneral



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# Regulation orRegulationRevisions as Published inthe Colorado Code ofRegulations (this is the versionthat is publishedbyLexisNexis) 

# 40 CFR Part51 Appendix V2.1(b) RegulationNumber 10

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# l DEPARTMENT OF PUBLIC HEALTHAND ENVIRONMENT

AIRQUALITYCONTROL COMMISSION


# REGULATION NO. 10 CRITERIAFORANALYSIS OF CONFORMITY

Authority Cited: 25-7-105(1), C.R.S. HistoryandAmendments: 

### 5 CCR 1001-12 EDITOR'S NOTES*

Pp. 1-2 amended 05/11/78, EFFECTIVE 05/31/78, 1CR6. Pp. 1-5 adopted 10/17/96, EFFECTIVE 12/30/96, 19 CR 12. Pp. 1-15 adopted 10/15/98, EFFECTIVE 11/30/98, 21 CR 11. Rule replaced in its entirety, adopted 11/20/08,EFFECTIVE 12/30/08,31 CR 12. Rule replacedin its entirety [TN2011-00669] adopted 12/15/11, EFFECTIVE 01130/12,35 CR 1.



### A.G. Opinions: I AG253; 19AG382; 21 AG352; 31 AGDec 1001-12; 35 AGJan 1001-12

Annotations:

*ThisTitlePagedoes notconstitute an officialpart ofanyregulation. Infonnationcontainedon theTitlePage isprovidedby the Publisher from sourcesdeemedreliable and is solely for infonnational and historical purposes. Seecautionarynote in Introductory Materials, Howto UsetheCCR. © 2012 StateofColorado All Rights Reserved. (800) 833-9844

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### I.

II. Requirement to Complywith the Federal Rule
The purpose of Regulation Number 10 is to fulfill the requirement in 40 CFR 51.390(b) to establish a SIP revision that addresses the provisions ofSections 40 CFR 93.105(a) through (e), 40 CFR 93.122(a)(4)(ii), and 40 CFR 93.125(c) ofthe federal transportation conformity rule (see 40 CFR Part 93, SubpartA). Any person making a transportation conformity determination or adopting or approving a regionally significant project shall comply with the provisions of40 CFR, Part 93, Subpart

### A, except as follows:
I.A. The interagency consultation procedures established in Section Ill. ofthis document specify Colorado procedures and shall apply in addition to the consultation procedures established in 40 CFR Section 93.105 (a)through (e).
I.B. Colorado-specific provisions in Section IV. ofthis document that require obtainment ofand fulfillment ofwritten commitments to SIP control measures not included in a transportation plan orTransportation Improvement Program (TIP) shall apply, pursuant to 40 CFR Section 93.122 (a)(4)(ii).
I.C. Colorado-specific provisions in Section V. ofthis document regarding design concept and scope and enforceability ofproject-level mitigation and control measures shall apply, pursuant to 40 CFR Section 93.125 (c). Definitions CDOTmeans the Colorado Department ofTransportation. Commission means the Air Quality Control Commission as defined in Section 25-7-103(7), C.R.S.
Division means TheAir Pollution Control Division, pursuantto Section 25-7-111, C.R.S.
HotSpotAnalvsis is an estimation of likely future localized criteria pollutant (ortheir precursor) concentrations and a comparison ofthose concentrations to the national ambient air qualitystandards. Federally required hot spot analyses assess impacts ofpollutants on a scale smallerthan the entire nonattainment or maintenance area, including for example, congested roadway intersections, highway portions, ortransit terminals, using air quality dispersion modeling. LeadPlanningAgency(LPA) is an agencydesignated byColorado's Governorthat is charged, togetherwith the Division, with the duty ofdeveloping the State Implementation Plan (SIP) forany nonattainment or maintenance area. Metropolitan planning omanization (MPO) is that organization designated as being responsible, togetherwith the State, for conducting the continuing, cooperative, and

. comprehensive planning process under23 U.S.C. 134 and 49 U.S.C. 1607. It is the lead agencyfor preparing transportation plans, TIPs and transportation conformity documents, and it provides a forum for cooperative transportation decision-making. Project-level ConformitySee: Hot SpotAnalysis Regional Transporlation Conformityrefers to the status ofa transportation planning region's conformance to relevant State Implementation Plans (SIPs). A conforming region's transportation plans and TIPs have passed emissions tests that must indicate they are unlikely to cause, contribute to, or increase the severity and frequency offuture violations of national ambient air quality standards. Regional Conformity is demonstrated using



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transportation network models and airquality models and comparing projected transportation-related pollutant emissions to motorvehicle emissions budgets, orwhere budgets are not established, other emission limits for the region. To make a positive · Conformityfinding for a region, future emissions must notexceed certain limits, e.g., emission budgets, and transportation projects, plans and TIPs must not interfere with any transportation control measures required by SIPs.
Review Team is that group of interagency representatives who consult regarding Transportation Conformity assessment and findings, e.g., the Interagency Consultation Group (ICG) developed bythe Denver Regional Council ofGovernments. The review team's responsibilities are defined in Section IV ofthis rule. RegionallySignificantProjectmeans a transportation project (otherthan an exempt project*) for afacility that serves regional transportation needs, such as access to and from the area outside the region, major activity centers in the region, major planned developments such as new retail malls, sports complexes, etc., or transportation terminals as well as mostterminals themselves) and would be included in the modeling ofa metropolitan area's transportation network, including at a minimum all principal arterial highways and all fixed guideway transit facilities that offer and alternative to regional highwaytravel. Forthe purposes ofthis rule, regionally significant projects include only those located in nonattainment or maintenance areas. *Exemptprojects are listedin the Federal Regulation at40 CFR Part 93.126 andPart 93. 127andinclude safetyimprovements. Routine ConformityDetermination is one that is made for transportation plans and TIPs and/ortheir amendments involving: (1) Individual roadway projects adding less than two lane miles, with additional miles for all projects equaling <10 lane miles; and /or .(2) Projects with revisions to staging years only, and/or (3) Minortransit station plan revisions. Conformity Determinations for areas with Limited Maintenance Plans, which do not have emissions budgets, as such areas have been in attainmentfor 20 years or longer, would also generally be considered "routine." Notwithstanding this general definition, the APCD at its discretion may request that any Conformity Determination be reviewed bythe Commission. Transportation Control Measure (TCM) is any measure that is specifically identified and committed to in the applicable implementation plan (air quality SIP) through the process established in CAA Section 176 (c) (8), that is either one ofthe types listed in CAA Section 108, or any other measure designed to reduce emissions or concentrations of air pollutants from transportation sources by reducing vehicle use or changing trafficflow or congestion conditions. Vehicle technology-based, fuel-based and maintenance-based measures, e.g., inspection and maintenance programs, are notTCM's. Transportation ImprovementProgram (TIP) A prioritized program oftransportation projects funded with federal transportation funds, developed under23.U.S.C. 134U) and 23 CFR Parts 450.324 through 450.330. The TIP must be fiscally constrained, and, in air quality nonattainment and maintenance areas, the MPO, aswell as FHWA and FTA mustdetermine thatthe TIP achieves Conformity Transportation Plan in the context ofthis regulation means afiscally constrained plan prepared by a Metropolitan Planning Organization or COOT and a local government or governments and/or regional planning commission pursuant to 23 U.S.C. 134 and as amplified by 23 CFR Part 450.322 (also referred to as a metropolitan transportation plan, regional transportation plan, or long-range transportation plan) forwhich a regional conformity determination is required. Outside ofMPO's, the Colorado Department ofTransportation, along with local governments, develops regional transportation plans. The overall State Transportation Plan incorporates all ofthe regional plans.



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Ill. Transportation Planning Region (TPR) is a geographic area forwhich the transportation planning process required by23 USC 134 and 135 and Section 8 ofthe Federal TransitAct must be carried out. Per Colorado regulations (CCR 43-1-1102), a TPR is a geographically designated area ofthe state forwhich a regional transportation plan may be developed pursuant to the provisions of43-1-1102 and 1103, CRS. Interagency Consultation
Ill.A. Roles and Responsibilities for Transportation Conformity Determinations and Related SIP**Development~** III.A.1. This rule sets out the minimum requirements for interagency consultation (Federal, State, regional and local) and resolution ofconflicts. Representatives ofthe MPOs, local transit agency, the Division, the LPA and COOT shall undertake an interagency consultation process in accordance with this section with each other and with local or regional offices of EPA, FHWA, and FTA on the development ofthe implementation plan, the list of TCMs in the applicable implementation plan, the transportation plan, the TIP, and all conformity determinations required bythis rule. The MPO shall provide notice ofrevisions to Conformity documents through the normal planning process. The interagency consultation process shall be used in developing or noticing revisions to any documents that could affect Transportation Conformity.
III.A.2. It shall be the role and responsibility ofeach agency identified as a lead agency to prepare the final document and to ensure the adequacy ofthe interagency consultation process. Designation as a lead agencyfor any decision item shall mean that such agency shall be responsible for making the final decision on such decision item, exceptthat any such decision shall be subjectto the dispute resolution process set out in Section IV.H. III.A.3. In each nonattainment area, COOT, the LPA, the Division, the MPO, local transit agency, and other agencies, as appropriate, maydevelop a written agreement pursuantto Section IV.G. that outlines the specific roles and responsibilities ofvarious participants in the interagency consultation process forthe preparation ofSIPs, transportation plans, TIPs and conformity determinations. In the absence ofsuch a written agreement, in addition to the otherduties specified in this rule, the specific roles and responsibilities ofthe various participants in the interagency consultation process shall be as follows: III.A.3.a. The Division shall be responsible for: (A) emissions inventories; 

### (8) air quality modeling and/orquality-assuring airquality modeling that is performed bythe MPOs or COOT; (C) performing attainment demonstrations; (D) assisting the LPA in the development of pollutant specific implementation plan · revisions; (E) providing technical and policy input regarding emission factors and emissions budgets; and (F) updating motor vehicle emissions factors. III.A.3.b. The LPA, orthe Division ifthere is no LPA, shall: (A) develop pollutant-specific state implementation plans for submittal to the Commission; and 

### (8) prepare emissions budgets. III.A.3.c. The MPO shall: (A) develop transportation plans and TIPs, and shall make conformity determinations on transportation plans



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### 5 CCR 1001-12 and TIPs within the applicable area, and shall be the lead agencyforthe development ofsuch plans and TIPs, and for such conformity determinations; (B) develop transportation and socioeconomic data and planning assumptions and provide such data and planning assumptions to the Division for use in air quality analysis; (C) perform transportation modeling and documentation oftimely implementation ofTCMs needed for conformity assessments and SIP development; and (D) monitor regionally significant projects, and ensurethat all disclosed, or otherwise known, regionally significant projects are included in the regional emissions analysis. The MPO may: (E) provide technical and policy inputon emissions budgets; (F) perform air quality modeling fortransportation conformity purposes; and (G) evaluateTCM impacts on transportation as needed. III.A.3.d. COOT shall: (A) provide technical input on proposed revisions to motorvehicle emissions factors, (B) convene air qualitytechnical review meetings on specific projects when requested by other agencies oras needed, and (C) comment on transportation control measures and other aspects ofthe SIP that may affect the operation, construction or maintenance ofthe transportation system. III.A.3.e. In addition to the duties and responsibilities identified in paragraph d. above, for FHWA/FTA projects located outside of metropolitan planning areas, COOT shall convene the appropriate parties to outline roles and responsibilities and coordinate efforts needed to: (A) perform the required conformity evaluation for such projects, and identifythe lead agencyfor such evaluations; (B) provide technical and policy input on emissions budgets; (C) develop socioeconomic data and planning assumptions for use in air quality analysis to determine conformity of projects in consultation with the affected municipal and county governments and state agencies; and (D) perform transportation modeling, regional emissions analyses and documentation oftimely implementation ofTCMs needed for conformity assessments. COOT may also conduct air quality modeling pursuant to a conformity determination

.. III.A.3.f. The Commission shall be responsible for promulgating revisions to the SIP and for determining whether a regional conformity determination should be appealed to the Governor.



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111.8. Establishing a Forum for Regional Conformity Consultation
111.8.1. Minimum Consultation Requirements.
111.8.1.a. The MPO shall establish and maintain a forum, herein referred to as the review team, for regular consultation. The MPO may establish a committee, or use existing committees, to perform the tasks assigned to the review team, provided the agencies identified in Subparagraph IV.8.1.b., below, have an opportunity to participate. Conference calls orwritten correspondence may be used to hold the meetings required bythis rule upon the concurrence ofthe Division and any affected LPA. The review team shall complywith the minimum requirements set out in paragraph c. below, exceptthat, outside of metro planning areas, COOT shall perform the functions assigned to the MPO. 111.8.1.b. The review team shall consist, at a minimum, ofthe MPO as lead agency, the local transit agency, the Division, COOT, and the LPA. In addition, the review team shall include EPA, FHWA and the FTA forthe topics identified in Subsection C.1. The agencies on the review team mayappoint individual staff members, ofany organizational level, to participate in the review team. 111.8.1.c. The review team established pursuantto paragraphs a. and b. shall complywith the following minimum requirements: 111.8.1.c.(1) The MPO consultation process shall begin early enough forthe review team to adequately review and provide meaningful input on drafttransportation plans, TIPs and conformity determinations, including supporting documents. 111.8.1.c.(2) A schedule ofmeetings or a processfor providing adequate notice ofsubsequent meetings shall be developed as part ofthe consultation process. The schedule of meetings shall be frequent enough to address all significant issues in a timelyfashion. 111.8.1.c.(3) The MPO shall establish an agenda for each meeting, and shall include in such agenda any issue or item upon the request ofany member. 111.8.1.c.(4) Any member may, at anytime, request a meeting through the consultation process. Upon such a request, the MPO should schedule a meeting as soon as practicable. 111.8.1.c.(5) The MPO shall respond in written form to written comments received from any ofthe members ofthe review team copying all review team members.



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III.C. Topics for Consultation III.C.1. The review team shall address the following topics in the manner provided. III.C.1.a. Evaluating and choosing a model (or models) and associated methods and assumptions to be used in regional emissions analyses. The MPOshall be responsible for selecting the transportation modeling procedures to be used within its modeling domain. The Division shall be responsible for selecting the emissions or air quality modeling procedures used for performing regional emissions analyses for conformity determinations and for SIP revisions. III.C.1.b. Determining which minor arterials and other transportation projects should be considered "regionally significant" for the purposes of regional emissions analysis (in addition to those functionally classified as principal arterial or higher or fixed guideway systems or extensions that offer an alternative to regional highwaytravel), and which projects should be considered to have a significant change in design concept and scope from the transportation plan orTIP. III.C.1.b.(1) The review team shall review the transportation network and identify minor arterials that serve regional transportation needs. III.C.1.b.(2) Review the transportation projects disclosed to the MPO pursuant to Section IV.E., and all transportation projects otherwise known to the members that may be regionally significant projects, and identify as regionally significant those projects that are on afacility which serves regional transportation needs and thatwould normally be included in the modeling ofthe metropolitan area's transportation network. III.C.1.b.(3) Identify any significant changes in design concept and scope ofany project from the transportation plan, TIP, or regional emissions analysis supporting the conformity determination for a conforming TIP, upon therequest ofany participant in the consultation process, or any recipient offunds designated underTitle 23 orthe Federal TransitActwith authority to adopt or approve ofthe subject regionally significant project. III.C.1.c. Evaluating whether projects otherwise exempted from meeting the requirements ofthis subpart (see 40 CFR Sections 93.126 and 93.127) should be treated as non-exemptin cases where potential emissions impacts may existfor any reason.



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III.C.1.c.(1) Atthe request ofany participant in the consultation process, the review team shall determine whether projects otherwise exemptfrom meeting the requirements ofthis subpart should be treated as nonexempt in cases where potential emissions impacts mayexistfor any reason. III.C.1.c.(2) For each non-attainment area that is outside of a metropolitan planning area, COOT shall consultwith the review team to identify categories ofexempt projects that should be treated as non-exempt for such area. III.C.1.d. Making a determination, as required by40 CFR Section 93.113(c}(1), whether past obstacles to TCM implementation have been identified and are being overcome, and whether State and local agencies with influence over approvals orfunding for TCMs are giving maximum priority to approval orfunding for TCMs.

. III.C.1.d.(1) The LPA and the Division shall provide the MPOwith information necessaryto develop a list ofthe TCMs The LPA mayalso request that the MPO, COOT, the public transit agency, or any other agency responsible for implementing a TCM reaffirm its commitment to implement a TCM pursuant to the schedule established in the SIP. III.C.1.d.(2) The MPO, after consultation with the review team, shall determinewhether obstacles to implementation ofTCMs have been identified and are being overcome, and whether State and local agencies are giving maximum priority to approval orfunding for TCMs. Foreach such determination, the MPO shall identify the past obstacles, the steps taken to overcome them, the State and local agencies with influence over approvals orfunding, the basis for finding that such agencies are giving maximum priorityto such approval orfunding, and a revised schedule for the implementation ofthe TCM. III.C.1.d.(3) The MPO shall report any situation in which it determines that obstacles to implementing a TCM are not being overcome, orthat State and local agencies with influence over approvals orfunding are not giving maximum priority to approval orfunding for TCMs. The report shall be provided to the agencysponsoring the TCM, the Division, the Commission and the Governor. The Commission mayschedule the matterfor a hearing regarding enforcement, and/or replacement of TCMs. III.C.1.e. Notification oftransportation plan orTIP revisions or amendments, which merely add ordelete exempt projects listed in 40 CFR Section 93.126 or 93.127.



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### 5 CCR 1001-12 The MPO shall provide notice through the normal planning process , priorto consideration ofany proposed amendmentthat adds or deletes exempt projects listed in 40 CFR Section 93.126 or 93.127 to orfrom the transportation plan orTIP. III.C.1.f. Processfor providing final documents and supporting information to each agency after approval oradoption. The MPO shall make available final TIPs and transportation plans to participants in the consultation process. III.C.1.g. Choosing conformity tests and methodologies for isolated rural nonattainment areas, as required by 40 CFR Section 93.109(1). The Division and COOT shall choose, in consultation with the members of the review team, the requirements and methodologies to be used to comply with 40 CFR Section 93.109. Ifthe Division and COOT cannot agree, the issue shall be referred to the Commission for review at a public meeting pursuant to Section III.H. The Commission mayescalate the matterto the Governor as provided in Section III.H. III.C.2. The reviewteam shall address the following topics in the manner provided. Outside ofthe metropolitan planning areas, COOT shall perform the tasks assigned to the MPO, excepting conformity determination tasks that it contracts out to other entities. III.C.2.a. Evaluating events which will trigger new conformity determinations in addition to those triggering events established in 40 CFR 93.104. III.C.2.a.(1) The MPO may identify events that would trigger new conformity determinations in addition to those triggering events established in 40 CFR Section 93.104, and the pollutant specific SIPs. Alternatively, the Commission may promulgate regulations or revise the SIP in a mannerthatwould trigger a new conformity determination. III.C.2.a.(2) The MPO will consultwith the review team to evaluate whetherevents that may trigger a new conformity determination pursuant to 40 CFR Section 93.104 or a pollutant specific SIP have occurred. III.C.2.b. Consulting on emissions analysis for transportation activities that cross the borders ofMPOs or nonattainment areas or basins. In the eventthat contiguous MPOs are created within the state, the affected MPOs shall, in consultation with the participants in the consultation process, establish a consultation procedure for consulting on emissions analyses for transportation activities that cross the borders of MPOs or nonattainment areas orair basins.



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III.C.2.c. Determining conformity ofprojects outside the metropolitan area and within the nonattainment or maintenance area. In the event that a nonattainment or maintenance area is created in the state that includes a metropolitan planning area orareas, but such metropolitan planning area(s) does not include the entire nonattainment or maintenance area, the affected MPOs, in consultation with the participants in the consultation process, shall establish a procedure for consulting on emissions analyses fortransportation activities that cross the borders ofMPOs or nonattainment areas orair basins. III.C.2.d. Process for consulting on the design, schedule, and funding of research and data collection efforts and regional transportation model development bythe MPO. The MPO, in consultation with the review team shall determine the design, schedule and funding ofsignificant research and data collection efforts and regional transportation model development. III.C.3. Hot SpotAnalysis: (1) Evaluating and choosing a model (or models) and associated methods and assumptions to be used in hot-spot modeling; and (2) identifying, as required by

### 40 CFR Section 93.123(b), projects located at sites in nonattainment or maintenance areas that havevehicle and roadway emission and dispersion characteristics essentially identical to those at sites where violations have been verified by monitoring, and therefore require quantitative pollutant hot-spot analysi.§.. COOT, the APCD, USEPA, and USDOTwill: III.C.3.a. Determine which types ofprojects should be evaluated for localized hot spots. COOT, subjectto concurrence bythe Division, shall identifythe projects or categories ofprojects that shall be evaluated for potential hot spots. III.C.3.b. Evaluate and choose a model (or models) and associated methods and assumptionsto be used in hot-spot analyses. COOT shall be responsible for selecting the hotspot model to be used for conformity determinations. 111.0. Process for assuming the location and design concept and scope ofprojects disclosed to the MPO as required by paragraph (E) ofthis section in cases where sponsors have not yet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of

### 40 CFR Section 93.122.
111.0.1. The MPO shall contact the sponsor ofany project disclosed to the MPO pursuant to Section Ill.E., butwhose sponsors have not yet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of

### 40 CFR Section 93.122, and shall request that such sponsor develop the location and design concept and scope ofthe project for the purpose ofincluding the project in the regional emissions analysis. 111.0.2. Ifthe sponsor is unwilling or unable to provide these features to the MPO in a timelyfashion, the MPO shall propose reasonable assumptions about such features, and shall provide COOT, the Division, the LPA, the project sponsor, and any recipient offunds designated underTitle 23 U.S.C. orthe Federal



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TransitAct that has the authorityto adopt or approve ofthe project, with a written description ofthe proposed assumptions. Following consultation with such agencies the MPO shall make assumptions aboutthe location and design concept and scope ofthe project that are reasonably calculated to estimate the emissions associated with such project. Such assumptions shall be based on the information and comments aboutthe project received bythe MPO.
Ill.E. Process to ensure that plans for construction of regionally significant projects thatare not FHWAIFTA projects (including projects forwhich alternative locations, design concept and scope, orthe no-build options are still being considered), including those by recipients offunds designated underTitle 23 U.S.C. orthe Federal TransitAct, are disclosed on a regular basis, and that any changes to such plans are immediately disclosed. III.E.1. Priorto conducting a conformity analysis, the MPO shall ensure that COOT and each municipality, county and publictransit agency within the metropolitan planning area, and each agencywith approval authority for transportation projects , is notified ofthe requirementto include regionallysignificant projects, and changes to plans for such projects, in the regional emissions analysis. Ill.F. Consultation procedures for development ofState Implementation Plans.
III.F.1. Minimum Consultation Requirements- SIP developmentand revision.
In each nonattainment or maintenance area, the LPA orthe Division shall establish and maintain a review team for regular consultation to ensure that the transportation community is involved in the development ofthe implementation plans. Such review team shall also be established to develop and review any SIP revision that includes a newor revised mobile source emissions budget, orthat requires a new or revised attainment or maintenance demonstration. The review team may be part ofa larger consultation procedure established by the LPA or Division to include all sectors ofthe community (in addition to the transportation community). The consultation procedure shall complywith the minimum requirements listed below. Ifthe review team is established by the Division, the Division shall perform the tasks assigned to the LPA. III.F.1.a. The review team shall consist of representatives ofthe MPO, the Division, COOT, the EPA, FHWA, FTA, and the public transit agency. III.F.1.b. The LPA shall begin consultation meetings earlyenough in the process for review team members to adequately review the modeling used to supportthe SIP, and to review the proposed control measures. The LPA must provide an opportunityto review copies ofthe draft implementation plan, including supporting documents, to the other members ofthe review team, and shall provide at leastthirty days forthe submission of comments on the draft SIP prior to adoption by the LPA. III.F.1.c. A schedule ofmeetings or a process for providing adequate notice ofsubsequent meetings shall be developed as part ofthe consultation process. The schedule of meetings shall be frequent enough to address all significant issues in a timelyfashion.



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III.F.1.d. The LPA shall establish an agenda for each meeting, and shall include in such agenda any issue or item upon the request of any participant. III.F.1.e. Any member may, at anytime, request a meeting to consult with the LPA and the other participants. Upon such a request the LPA should schedule a meeting as soon as practicable. III.F.1.f. The LPA shall respond in written form to written comments received from any ofthe participants. III.F.1.g. SIPs and SIP revisions proposed by the LPA shall be subject to final approval by the Commission following a public hearing. The Division shall provide final copies ofany SIP orSIP revision to the MPO, COOT, the LPA, the public transit agency, the EPA, the FHWA, and FTA. III.F.2. The LPA shall submit a list ofTCMs included in the proposed SIP to the MPO, COOT and each affected local agency orother sponsoring agency at leastthirty days prior to approval ofthe SIP or SIP revision bythe governing board ofthe LPA. III.F.3. The SIP development procedures set out in this Section IV.F. shall be in addition to any other rules or regulations applicable to SIP development or SIP revisions. Nothing in this Section III.F. shall be construed to supersede, alter or amend such other rules, orto incorporate such other requirements into the SIP.
Ill.G. Agreements further describing consultation procedures. III.G.1. The Division may enter into written agreements with the members ofthe reviewteam to clarify and further develop the procedures for conformity determinations described in this Section Ill. The Division may also enter into written agreements with the LPA and members ofthe committee established pursuant to Section III.F. to further clarify or develop the SIP development procedures. The members ofthe review team may; by mutual agreement, delegate the tasks assigned to them underthis rule to other members. Any member ofthe review team delegating a task shall conduct reasonable oversight ofthe delegated task as necessaryto ensure proper performance. III.G.2. Nothing in this regulation shall be construed to relieve the parties ofthe obligations set out in agreements entered into priorto the effective date of this rule, except to the extent that the provisions ofsuch agreements are inconsistentwith this rule. The Commission and Division shall continue membership on any MPO committee or council as provided in any such agreements. Ill.H. Review ofConformity Determinations bythe public, the Air Quality Control Commission, and resolution ofconflicts. III.H.1. Per, 40 CFR Section 93.105(e), agencies making conformity determinations-i.e., MPO's orCOOT--must provide for public review and comment prior to adopting new oramended transportation plans-and programs.



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III.H.1.a. Agencies making conformity determinations must provide reasonable public access to relevant documents, consistentwith 23 CFR Section 450.316(a). Any charges imposed for public inspection or copying ofdocuments would be consistentwith USDOT regulations at49 CFR Section 7.43. III.H.1.b. Agencies making conformity determinations must specifically address in writing any public comments asserting that a regionally significant project is not reflected in the emissions analysis supporting a positive conformity finding. III.H.1.c. Agencies making conformity determinations shall provide opportunity for public involvement in conformity determinations for projects where otherwise required by law.
III.H.2. The Division shall make afinding regarding which Conformity Determinations are routine, perthe definition setforth in this regulation. Routine Conformity Determinations regarding a TIP or Plan shall be reviewed bythe Division. For instances in which the Division agrees that a positive Conformity Determination has been made, itshall provide notice ofconcurrence with those determinations

.. The Division shall make the determination regarding whether a Conformity Determination is routine. Ifa Conformity Determination is non-routine, it shall be brought before the Commission for its review and possible concurrence. The Commission intends to conduct public meetings to review non-routine conformity determinations in accordance with the applicable provisions ofthe Air Quality Control Commission Procedural Rules, and reserves the rightto schedule such meetings as permitted bythe Commission's schedule and as necessary to complywith such procedural rules. However, this paragraph shall not be construed to incorporate such procedural rules into the SIP. No violation ofsuch procedural rules shall be construed as a violation ofthe SIP, exceptwhere such procedural rules otherwise has been incorporated into the SIP. III.H.3. Upon request ofany member ofthe review team, a conformity determination on an FHWA project located outside ofa metropolitan planning area shall be presented to the Commission priorto submittal to FHWA ifthere is a conflict that cannot be resolved by the reviewteam. The requestfor such review must be filed as soon as practicable and shall not be filed any laterthan the first regularly scheduled Commission meeting following the final conformity determination. III.H.4. In accordance with 40 CFR Section 93.105(d), conflicts among State agencies or between State agencies and an MPO may be escalated to the Governor. Such conflicts would render a Conformity Determination nonroutine and subjectto review by the AQCC. The fourteen calendar-days in which to appeal a conflict to the Governor shall commence upon review ofa conformity determination bythe Commission pursuantto this Subsection H., except as provided below at Sections (a) and (b). Ifthe State appeals to the Governor, the final conformity determination must have the concurrence of the Governor. Ifthe Commission does not appeal to the Governorwithin 14 days, or as provided below at Sections (a) and (b), the MPO or COOT may proceed with the final conformity determination.



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IV.



## v.

VI. III.H.4.a. The Commission mayextend the beginning ofthe time to escalate a conflict to the next regularly scheduled Commission meeting ifthe entity making the conformitydetermination amends such determination during the fourteen-day period preceding the Commission meeting. III.H.4.b. Upon the agreement and concurrence ofthe entity making the conformity determination, the Commission may extend the beginning ofthe time to escalate a conflict as necessaryto accommodate further consultation among the agencies. III.H.4.c. For purposes ofproject level conformity determinations in isolated rural nonattainment and maintenance areas, a "final conformity determination" shall be taken to mean COOT's completed conformity analysis and recommended finding of conformity to FHWA. Emission reduction credit for certain control measures. IV.A. Pursuantto 40 CFR Section 93.122(a)(4), emissions reduction credit from implementation plan control measures that are not included in the transportation plan and TIP and that do not require a regulatory action in orderto be implemented may not be included in the emissions analysis unless the conformity determination includes written commitments to implementation from the appropriate entities.
IV.B. Anyentity making a written commitment to perform a control measure not included in the transportation plan orTIP shall fulfill such written commitment ifthe control measure is used for emissions reduction credit in a regional emissions analysis. Enforceability ofdesign concept and scope and project-level mitigation and control measures. V.A. Pursuant to 40 CFR Section 93.125 (c), where project-level mitigation is conditional to a positive conformity determination, written commitments to such mitigation measures must be obtained. Project sponsors shall complywith these commitments. Statements of Basis, Specific StatutoryAuthority, and Purpose
VI

### .A Amendments Adopted October 15, 1998 The change to Regulation Number 10, "Criteria forAnalysis ofConformity," Part 

### 8, "Transportation Conformity"will establish criteria and procedures for making conformity determinations on transportation plans, transportation improvement programs (TIPs), FHWA/FTA projects, and consultation procedures for major revisions to the State Implementation Plan (SIP). Federal Requirements Pursuant to 40 CFR Section 51.390, Colorado must submit to the EPA and the U.S. Department ofTransportation (DOT), a revision to the SIP to establish criteria and procedures for DOT, metropolitan planning organizations (MPOs), and state and local transportation and air quality agencies to assess the conformity oftransportation plans, programs, and projects, consistent with the requirements of40 CFR, Part 93, SubpartA. The states may incorporate the substantive criteria for making conformity determinations set out in the federal rule, into the state rule by reference. The rule adopted bythe Commission



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takes advantage ofthis opportunity and incorporates the criteria in 40 CFR Part 93, Subpart A by reference. The federal rule also requires the states to develop procedures for interagency consultation on transportation conformity determinations, and for SIP revisions. The federal rule. establishes minimum requirements for such consultation procedures, but does not actually establish any procedures. Pursuantto 40 CFR Section 51.390 and 93.105, the states must develop and adopt such procedures, and submitthe procedures to EPAfor inclusion in the SIP. The rule adopted bythe Commission establishes procedures for interagency consultation, and addresses each ofthe topics required by 40 CFR Section 93.105. The consultation procedure established in the rule is intended to create a meaningful interagency consultation process that complies with the federal requirements, butthat provides the flexibility necessary to meetthe needs ofthe Colorado Department ofTransportation and the various MPOs in the State. The interagency consultation requirements trackthe minimum federal requirements, and are not otherwise more stringentthan the federal requirements. The only provision in the rule that differsfrom the federal rule is the definition ofthe term "regionally significant project" contained in the state rule. The state rule includes a definition applicable to rural nonattainment areas that do not conduct modeling ofthe area's transportation network. The federal rule appears to assume that all nonattainmentareas conduct such modeling. The specific definition in the rule for rural areas is necessary to reconcile the federal rule with the general practice in rural nonattainment areas, but is not more stringentthan federal requirements. Contested Issues One MPO urged the Commission to adopt a rule requiring a public meeting to be held priorto final action by the MPO. The rule is written to allowflexibility, so that MPOs have the option of coming to the Commission either before or aftertheir governing board takes final action on the conformity determination. However, the Commission strongly encourages the MPOs to submit a draft conformity determination to the AQCC for comment, so thatthe MPO can take the Commission's comments into account as early in the process as possible. Statutory Authority The transportation conformity rule is adopted underthe Commission's general authorityto adopt a SIP under Section 25-7-105(1), C.R.S. (1997). Findings pursuantto Section 25-7-110.8 The portion ofthe rule incorporating the federal criteria for making conformity determinations is exemptfrom the requirements of Section 25-7-110.8, C.R.S. (1997). The consultation requirements are administrative in nature, and are exemptfrom the requirements ofSection 25-7-110.8(1)(b}, C.R.S. The interagency consultation requirements establish a procedure for ensuring thatthe federal, state and local airquality agencies charged with protecting human health and the environment ar.e consulted during the transportation conformity process. In this way, the rule will bring about reductions in risks to human health orthe environmentthat will justifythe cost of implementation ofthe rule. The rule adopted bythe Commission complies with the minimum federal requirements and maximizes the air quality benefits ofthe regulation in the mostcost-effective manner. No other party proposed any alternative rule thatwould accomplish this result in a more cost-effective manner.



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VI.B. Amendments Adopted November20, 2008 Transportation Conformity Update Background This Statement of Basis, Specific StatutoryAuthority and Purpose complies with the requirements oftheAdministrative Procedures Act, Section 24-4-103, C.R.S. and the Colorado Air Pollution Prevention and Control Act, Section 25-7-110.5, C.R.S. Basis and Purpose 

### Page 15

These revisions to "Part B, "Transportation Conformity," update the Regulation to incorporate by reference revisions to the federal rule, and to recognize Colorado-specific practices. The incorporations by reference adopt revisions to federal conformity regulations adopted by the EPA since 1997. Most ofthese revisions have streamlined processes and relaxed requirements. The revisions add language that addresses 40 CFR Section 93.122(a)(4)(ii) regarding obtaining and ensuring the fulfillment ofwritten commitments to SIP control measures needed to achieve or maintain national ambient air quality standards that are not included in transportation plans or programs. These revisions also add language that addresses Section 93.125(c) regarding obtaining and ensuring the fulfillment ofwritten commitments to transportation project mitigation measures. These are not newfederal provisions, butthey are newly required to be "addressed," i.e., made explicit in state conformity implementation plans. These revisions also make non-substantive changes including correcting citations, clarifying language, and striking ofunnecessaryorconfusing language. Federal Requirements Pursuant to 40 CFR Section 51.390, Colorado must submitto the EPA and the U.S. Department ofTransportation (DOT), a revision to the SIP to establish criteria and procedures for DOT, metropolitan planning organizations (MPOs), and state andlocal transportation and airquality agencies to assess the conformity oftransportation plans, programs, and projects, consistent with the requirements of40 CFR, Part 93, Subpart

### A. The states may incorporate the substantive criteria for making conformity determinations set out in the federal rule, into the state rule by reference. The rule adopted bythe Commission takes advantage ofthis opportunity and incorporates the criteria in 40 CFR Part 93, SubpartA by reference. The federal rule also requires the states to develop procedures for interagency consultation on transportation conformity determinations, and for SIP revisions. The federal rule establishes minimum requirements for such consultation procedures, and requires States to establish these consultation procedures, including consultation with the public and conflict resolution at40 CFR, Sections 93.105 (c) and (d). Pursuantto 40 CFR Sections 51.390 and 93.105, the states must develop and adopt such procedures, and submit the procedures to EPAfor inclusion in the SIP. Pursuantto 40 CFR Sections 93.122(a)(4)(ii) and 93.125(c), States must also address the obtainment and enforceabilityofwritten commitments to SIP control measures not included in transportation plan as well as transportation project mitigation measures.



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Statutory Authority This transportation conformity rule is adopted underthe Commission's general authority to adopt a SIP under Section 25-7-105(1), C.R.S. (1997). Findings pursuant to Section 25-7-110.8 The portion ofthe rule incorporating the federal criteria for making conformity determinations is exemptfrom the requirements ofSection 25-7-110.8, C.R.S. (1997). The revisions addressing public consultation, conflict resolution, written commitments to SIP control measures not contained in transportation plans and project-level mitigation conditional to a conformity determination trackthe requirements in federal rules and are mandated byfederal law. These revisions provide forwritten commitment to incorporate mitigation measures into project design fortransportation projects. Mitigation measures are frequently necessaryto reduce localized emissions associated with transportation project construction, but rarely relied upon for conformity determinations. Where such commitments are necessaryfor a positive conformity determination, they must be enforced so as to reduce risks to human health orthe environment, which justifies the cost of implementation ofthe rule. The rule adopted bythe Commission complies with the minimum federal requirements and maximizes the airquality benefits ofthe regulation in the mostcost-effective manner. No other party proposed any alternative rule thatwould accomplish this result in a more cost-effective manner. VI.C. Amendments Adopted December 15, 2011 Basis and Purpose The purpose ofthese amendments isto streamline the transportation conformity process by allowing the Colorado Air Pollution Control Division to provide concurrencewith routine transportation conformity determinationswithout the need for a public hearing before the Colorado Air Quality Control Commission. This change to the conformity process is allowed for underfederal law and will reduce the burden on the AQCC, the Division and transportation planning organizations, while ensuring that air quality requirements are met. In addition, the amendments include a number ofclarifying provisions thatwill helpfacilitate the implementation ofthe regulation. In addition to streamlining the transportation confoJmity process, these amendments include a number of housekeeping changes made at the request of EPA, including removing incorporations by reference to federal general conformity regulations. Inclusion ofthese requirements in Regulation Number 10, and the State Implementation Plan is not required and is unnecessaryto the general conformity process. Specific Statutory Authority The Commission promulgates these regulatory changes pursuant to its authority under Section 25-7-105(1)(a)(l), C.R.S. to adopt a comprehensive state implementation plan that meets the requirements ofthe federal Clean Air Act. Findings Pursuant to Section 25-7-110.8 The revisions to Regulation Number 10 are administrative in nature and are not intended to reduce air pollution. Rather, the revisions are intended to streamline the transportation conformity process and clarify existing requirements, while maintaining the air quality benefits ofthe existing rule. Accordingly, the requirements ofSection 25-7-110.8, C.R.S. do not apply to this rulemaking.



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