ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-0320; FRL- ] 

Approval and Promulgation of Air Quality Implementation Plans;

District of Columbia; Transportation Conformity Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final action to approve revisions to the District of Columbia

State Implementation Plan (SIP). The revisions establish general and transportation conformity

regulations for the District of Columbia. EPA is approving these revisions in accordance with 

the requirements of the Clean Air Act.

 

DATES: This rule is effective on [Insert date 60 days after publication in the Federal Register] 

without further notice, unless EPA receives adverse written comment by [Insert date 30 days 

after publication in the Federal Register]. If EPA receives such comments, it will publish a 

timely withdrawal of the direct final rule in the Federal Register and inform the public that the 

rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR2010-0320 by one of the following methods:

 A. www.regulations.gov, Follow the on-line instructions for submitting comments.

 B. E-mail: fernandez.cristina@epa.gov

 C. Mail: EPA-R03-OAR-2010-0320, Cristina Fernandez, Associate Director, Office of Air 

Planning Programs, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 
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Arch Street, Philadelphia, Pennsylvania 19103.

 D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only

accepted during the Docket’s normal hours of operation, and special arrangements should be 

made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2010-0320. EPA's 

policy is that all comments received will be included in the public docket without change, and 

may be made available online at www.regulations.gov, including any personal information 

provided, unless the comment includes information claimed to be Confidential Business 

Information (CBI) or other information whose disclosure is restricted by statute. Do not submit 

information that you consider to be CBI or otherwise protected through www.regulations.gov or 

e-mail. The www.regulations.gov website is an anonymous access system, which means EPA 

will not know your identity or contact information unless you provide it in the body of your 

comment. If you send an e-mail comment directly to EPA without going through 

www.regulations.gov, your e-mail address will be automatically captured and included as part of 

the comment that is placed in the public docket and made available on the Internet. If you submit 

an electronic comment, EPA recommends that you include your name and other contact 

information in the body of your comment and with any disk or CD-ROM you submit. If EPA 

cannot read your comment due to technical difficulties and cannot contact you for clarification, 

EPA may not be able to consider your comment. Electronic files should avoid the use of special 

characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the www.regulations.gov index. 
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Although listed in the index, some information is not publicly available, i.e., CBI or other 

information whose disclosure is restricted by statute. Certain other material, such as copyrighted 

material, is not placed on the Internet and will be publicly available only in hard copy form. 

Publicly available docket materials are available either electronically in www.regulations.gov or 

in hard copy during normal business hours at the Air Protection Division, U.S. Environmental 

Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of 

the State submittal are available at the District of Columbia District Department of the 

Environment, Air Quality Division, 51 N Street NE, Fifth Floor, Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT: Martin Kotsch, (215) 814-3335, or by e-mail 

at kotsch.martin@epa.gov. 

SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or 

“our'' is used, we mean EPA.

SUPPLEMENTARY INFORMATION: 

I. What Is Transportation Conformity?

Transportation conformity is required under Section 176(c) of the Clean Air Act to ensure that 

Federally supported highway, transit projects, and other activities are consistent with (conform 

to) the purpose of the SIP. Conformity currently applies to areas that are designated

nonattainment, and those redesignated to attainment after 1990 (maintenance areas), with plans 

developed under section 175A of the Clean Air Act for the following transportation related 
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criteria pollutants: ozone, particulate matter (PM2.5 and PM10), carbon monoxide (CO), and 

nitrogen dioxide (NO2). Conformity to the purpose of the SIP means that transportation activities

will not cause new air quality violations, worsen existing violations, or delay timely attainment of

the relevant national ambient air quality standards (NAAQS). The transportation conformity

regulation is found in 40 CFR part 93 and provisions related to conformity SIPs are found in 40 

CFR 51.390.

II. What Is the Background for This Action?

On August 10, 2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 

Legacy for Users (SAFETEA-LU) was signed into law. SAFETEA-LU revised certain 

provisions of section 176(c) of the Clean Air Act, related to transportation conformity. Prior to 

SAFETEA-LU, states were required to address all of the Federal conformity rule's provisions in 

their conformity SIPs. After SAFETEA-LU, state’s SIPs were required to contain all or portions 

of only the following three sections of the Federal rule, modified as appropriate to each state's 

circumstances: 40 CFR 93.105 (consultation procedures); 40 CFR 93.122(a)(4)(ii) (written 

commitments to implement certain kind of control measures); and 40 CFR 93.125(c) (written 

commitments to implement certain kinds of mitigation measures). States are no longer required 

to submit conformity SIP revisions that address the other sections of the Federal conformity rule. 

III. What Did the State Submit and How Did We Evaluate It?

On January 26, 2010, the District of Columbia Department of the Environment submitted a 

revision to its SIP for general and transportation conformity regulations adopted on January 8, 
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2010. The portion of the SIP dealing with general conformity is strictly a recodification of its

previously approved general conformity regulation from Chapter 4 of the District of Columbia 

Regulations (DCMR) to Chapter 15 and contains no substantial changes from its previous 

approval. The SIP revision section for transportation conformity addresses the three provisions 

of the EPA Conformity Rule required under SAFETEA-LU: 40 CFR 93.105 (consultation 

procedures); 40 CFR 93.122(a)(4)(ii) (control measures), and 40 CFR 93.125(c) (mitigation 

measures).

We reviewed the submittals to assure consistency with the February 14, 2006 “Interim Guidance 

for Implementing the Transportation Conformity provisions in the SAFETEA-LU.” The guidance

document can be found at http://epa.gov/otaq/stateresources/transconf/policy.htm. The guidance 

document states that each state is only required to address and tailor the afore-mentioned three 

sections of the Federal Conformity Rule to be included in their state conformity SIPs. 

EPA's review of the District of Columbia’s proposed SIP revision indicates that it is consistent 

with EPA’s guidance in that it includes the three elements specified by SAFETEA-LU. 

Consistent with the EPA Conformity Rule at 40 CFR 93.105 (consultation procedures), Title 20, 

DCRM Chapter 15, Sections 1503, 1504, and 1505 identifies the appropriate agencies, 

procedures and allocation of responsibilities. In addition, Title 20, DCMR Chapter 15, Section 

1506 provides for appropriate, public consultation/public involvement consistent with 40 CFR 

93.105. With respect to the requirements of 40 CFR 93.122(a)(4)(ii) and 40 CFR 93.125(c), the 

Title 20, DCRM Chapter 15, Section 1509 of the regulation specifies that written commitments 

for control measures and mitigation measures for meeting these requirements will be provided as 
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needed.

IV. Final Action

EPA is approving the District of Columbia SIP revisions for general and transportation 

conformity, without prior proposal because the Agency views this as a noncontroversial 

amendment and anticipates no adverse comment. However, in the Proposed Rules section of 

today’s Federal Register, EPA is publishing a separate document that will serve as the proposal 

to approve the SIP revision if adverse comments are filed. This rule will be effective on [Insert 

date 60 days from date of publication in the Federal Register] without further notice unless EPA 

receives adverse comment by [Insert date 30 days from date of publication in the Federal 

Register]. If EPA receives adverse comment, EPA will publish a timely withdrawal in the 

Federal Register informing the public that the rule will not take effect. EPA will address all 

public comments in a subsequent final rule based on the proposed rule. EPA will not institute a 

second comment period on this action. Any parties interested in commenting must do so at this 

time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section 

of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt 

as final those provisions of the rule that are not the subject of an adverse comment. 

V. Statutory and Executive Order Reviews 

A. General Requirements

Under the Clean Air Act, the Administrator is required to approve a SIP submission that 

complies with the provisions of the Act and applicable Federal regulations 42 U.S.C. 7410(k); 40 
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CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, 

provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely

approves state law as meeting Federal requirements and does not impose additional requirements 

beyond those imposed by state law. For that reason, this action:

 is not a "significant regulatory action” subject to review by the Office of Management and 

Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); 

 does not impose an information collection burden under the provisions of the Paperwork 

Reduction Act (44 U.S.C. 3501 et seq.);

 is certified as not having a significant economic impact on a substantial number of small 

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); 

 does not contain any unfunded mandate or significantly or uniquely affect small 

governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 

104-4);

 does not have Federalism implications as specified in Executive Order 13132 (64 FR 

43255, August 10, 1999);

 is not an economically significant regulatory action based on health or safety risks subject 

to Executive Order 13045 (62 FR 19885, April 23, 1997); 

 is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, 

May 22, 2001); 

 is not subject to requirements of section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 272 note) because application of those 

requirements would be inconsistent with the Clean Air Act; and 
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 does not provide EPA with the discretionary authority to address, as appropriate, 

disproportionate human health or environmental effects, using practicable and legally

permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 

FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country

located in the state, and EPA notes that it will not impose substantial direct costs on tribal 

governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory

Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the 

agency promulgating the rule must submit a rule report, which includes a copy of the rule, to 

each House of the Congress and to the Comptroller General of the United States. EPA will 

submit a report containing this action and other required information to the U.S. Senate, the U.S. 

House of Representatives, and the Comptroller General of the United States prior to publication 

of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is 

published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 

804(2). 

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in 

the United States Court of Appeals for the appropriate circuit by [insert date 60 days from date of 

publication of this document in the Federal Register]. Filing a petition for reconsideration by the 
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Administrator of this final rule does not affect the finality of this final rule for the purposes of 

judicial review nor does it extend the time within which a petition for judicial review may be 

filed, and shall not postpone the effectiveness of such rule or action. This action to approve the 

District of Columbia transportation conformity regulations may not be challenged later in 

proceedings to enforce its requirements. (See, section 307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile 

organic compounds.

__May 17, 2010 _____ ________\\s\\_____________

Dated: William C. Early,

 Acting Regional Administrator,

 Region III.
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40 CFR part 52 is amended as follows: 

PART 52 - [AMENDED] 

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

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

Subpart J District of Columbia

2. In §52.470, the table in paragraph (c) is amended by removing the existing entry for Chapter 4, 

Section 403 and adding a new entry for Chapter 15. The amendments read as follows: 

§ 52.470 Identification of plan.

* * * * *

(c)* * *

EPA-APPROVED DISTRICT OF COLUMBIA REGULATIONS 

State citation Title/subject State 

effective 

date

EPA 

approval 

date

Additional 

explanation

 * * * * * * * 

Chapter 15 General and Transportation Conformity 

Section 1500 General 

ConformityPurpose

1/8/10 [Insert Federal 

Register

publication date]

[Insert page 

number where 

the document 

begins]

New Regulation

Section 1501 General 

ConformityRequirements

1/8/10 [Insert Federal 

Register

publication date]

[Insert page 

number where 

the document 

begins]

New Regulation
11

State citation Title/subject State 

effective 

date

EPA 

approval 

date

Additional 

explanation

Section 1502 Transportation 

ConformityPurpose

1/8/10 [Insert Federal 

Register

publication date]

[Insert page 

number where 

the document 

begins]

New Regulation

Section 1503 Transportation 

ConformityConsultation 

Process

1/8/10 [Insert Federal 

Register

publication date]

[Insert page 

number where 

the document 

begins]

New Regulation

Section 1504 Transportation 

ConformityInteragency

Consultation

Requirements

1/8/10 [Insert Federal 

Register

publication date]

[Insert page 

number where 

the document 

begins]

New Regulation

Section 1505 Transportation 

ConformityConflict 

Resolution 

Associated With 

Conformity

Determinations

1/8/10 [Insert Federal 

Register

publication date]

[Insert page 

number where 

the document 

begins]

New Regulation

Section 1506 Transportation 

Conformity-Public 

Consultation 

Procedures

1/8/10 [Insert Federal 

Register

publication date]

[Insert page 

number where 

the document 

begins]

New Regulation

Section 1507 Transportation 

ConformityInteragency

Consultation 

Procedures

1/8/10 [Insert Federal 

Register

publication date]

[Insert page 

number where 

the document 

begins]

New Regulation
12

State citation Title/subject State 

effective 

date

EPA 

approval 

date

Additional 

explanation

Section 1508 Transportation 

ConformityProcedures for 

Determining 

Regional 

TransportationRelated 

Emissions

1/8/10 [Insert Federal 

Register

publication date]

[Insert page 

number where 

the document 

begins]

New Regulation

Section 1509 Transportation 

ConformityEnforceability of 

Design Concept 

and Scope and 

Project-Level 

Mitigation and 

Control Measures

1/8/10 [Insert Federal 

Register

publication date]

[Insert page 

number where 

the document 

begins]

New Regulation

Section 1599 Definitions 1/8/10 [Insert Federal 

Register

publication date]

[Insert page 

number where 

the document 

begins]

New Regulation

* * * * * * *

 

 

* * * * *