5 Colo. Code Regs. § 1001-12-III

Current through Register Vol. 47, No. 18, September 25, 2024

Section 5 CCR 1001-12-III - Interagency Consultation

III.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 of conflicts. Representatives of the MPOs, local transit agency, the Division, the LPA and CDOT 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 of the implementation plan, the list of TCMs 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 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 of each agency identified as a lead agency to prepare the final document and to ensure the adequacy of the 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, except that any such decision shall be subject to the dispute resolution process set out in \ Section III.H.

III.A.3. In each nonattainment area, CDOT, the LPA, the Division, the MPO, local transit agency, and other agencies, as appropriate, may develop a written agreement pursuant to Section III.G. that outlines the specific roles and responsibilities of various participants in the interagency consultation process for the preparation of SIPs, transportation plans, TIPs and conformity determinations. In the absence of such a written agreement, in addition to the other duties specified in this rule, the specific roles and responsibilities of the various participants in the interagency consultation process shall be as follows:

III.A.3.a. The Division shall be responsible for:

(A) emissions inventories;

(B) air quality modeling and/or quality-assuring air quality modeling that is performed by the MPOs or CDOT; (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, or the Division if there is no LPA, shall:

(A) develop pollutant-specific state implementation plans for submittal to the Commission; and

(B) prepare emissions budgets.

III.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 of such 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 of timely implementation of TCMs needed for conformity assessments and SIP development; 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.

III.A.3.d. CDOT shall:

(A) provide technical input on proposed revisions to motor vehicle emissions factors,

(B) convene air quality technical review meetings on specific projects when requested by other agencies or as needed, and

(C) comment on transportation control measures and other aspects of the SIP that may affect the operation, construction or maintenance of the 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, 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 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 of timely implementation of TCMs needed for conformity assessments. CDOT 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.

III.B. Establishing a Forum for Regional Conformity Consultation

III.B.1. Minimum Consultation Requirements.

III.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 SubparagraphIII.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 of the Division and any affected LPA. The review team shall comply with the minimum requirements set out in paragraph c. below, except that, outside of metro planning areas, CDOT shall perform the functions assigned to the MPO.

III.B.1.b. The review team shall consist, at a minimum, of the MPO as lead agency, the local transit agency, the Division, CDOT, and the LPA. In addition, the review team shall include EPA, FHWA and the FTA for the topics identified in Subsection C.1. The agencies on the review team may appoint individual staff members, of any organizational level, to participate in the review team.

III.B.1.c. The review team established pursuant to paragraphs a. and b. shall comply with the following minimum requirements:

III.B.1.c.(1) The MPO consultation process shall begin early enough for the review team to adequately review and provide meaningful input on draft transportation plans, TIPs and conformity determinations, including supporting documents.

III.B.1.c.(2) A schedule of meetings or a process for providing adequate notice of subsequent meetings shall be developed as part of the consultation process. The schedule of meetings shall be frequent enough to address all significant issues in a timely fashion.

III.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 of any member.

III.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.

III.B.1.c.(5) The MPO shall respond in written form to written comments received from any of the members of the review team copying all review team members.

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 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.

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 highway travel), and which projects should be considered to have a significant change in design concept and scope from the transportation plan or TIP.

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 III.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 a facility which serves regional transportation needs and that would normally be included in the modeling of the metropolitan area's transportation network.

III.C.1.b.(3) Identify any significant changes in design concept and scope of any project from the transportation plan, TIP, or regional emissions analysis supporting the conformity determination for a conforming TIP, upon the request of any participant in the consultation process, or any recipient of funds designated under Title 23 or the Federal Transit Act with authority to adopt or approve of the subject regionally significant project.

III.C.1.c. Evaluating whether projects otherwise exempted from meeting the requirements of this subpart (see 40 CFR Sections 93.126 and 93.127) should be treated as non-exempt in cases where potential emissions impacts may exist for any reason.

III.C.1.c.(1) At the request of any participant in the consultation process, the review team shall determine whether projects otherwise exempt from meeting the requirements of this subpart should be treated as non-exempt in cases where potential emissions impacts may exist for any reason.

III.C.1.c.(2) For each non-attainment area that is outside of a metropolitan planning area, CDOT shall consult with the review team to identify categories of exempt projects that should be treated as non-exempt for such area.

III.C.1.d. Making a determination, as required by 40 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 or funding for TCMs are giving maximum priority to approval or funding for TCMs.

III.C.1.d.(1) The LPA and the Division shall provide the MPO with information necessary to develop a list of the TCMs The LPA may also request that the MPO, CDOT, 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 determine whether obstacles to implementation of TCMs have been identified and are being overcome, and whether State and local agencies 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 them, 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 of the 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, or that State and local agencies with influence over approvals or funding 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 matter for a hearing regarding enforcement, and/or replacement of TCMs.

III.C.1.e. Notification of transportation plan or TIP revisions or amendments, which merely add or delete exempt projects listed in 40 CFR Section 93.126 or 93.127.

The MPO shall provide notice through the normal planning process , prior to consideration of any proposed amendment that adds or deletes exempt projects listed in 40 CFR Section 93.126 or 93.127 to or from the transportation plan or TIP.

III.C.1.f. Process for providing final documents and supporting information to each agency after approval or adoption.

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(g).

The Division and CDOT 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. If the Division and CDOT cannot agree, the issue shall be referred to the Commission for review at a public meeting pursuant to Section III.H. The Commission may escalate the matter to the Governor as provided in Section III.H.

III.C.2. The review team shall address the following topics in the manner provided. Outside of the metropolitan planning areas, CDOT 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 manner that would trigger a new conformity determination.

III.C.2.a.(2) The MPO will consult with the review team to evaluate whether events 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 of MPOs or nonattainment areas or basins.

In the event that contiguous MPOs are created within the state, the affected MPOs shall, in consultation with the participants in the consultation process, establish a consultation procedure for consulting on emissions analyses for transportation activities that cross the borders of MPOs or nonattainment areas or air basins.

III.C.2.c. Determining conformity of projects 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 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 or air 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 by the MPO.

The MPO, in consultation with the review team shall determine the design, schedule and funding of significant research and data collection efforts and regional transportation model development.

III.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. CDOT, the APCD, USEPA, and USDOT will:

III.C.3.a. Determine which types of projects should be evaluated for localized hot spots. CDOT, subject to concurrence by the Division, shall identify the projects or categories of projects that shall be evaluated for potential hot spots.

III.C.3.b. Evaluate and choose a model (or models) and associated methods and assumptions to be used in hot-spot analyses. CDOT shall be responsible for selecting the hot spot model to be used for conformity determinations.

III.D. Process for assuming the location and design concept and scope of projects disclosed to the MPO as required by paragraph (E) of this section 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.

III.D.1. The MPO shall contact the sponsor of any project disclosed to the MPO pursuant to Section III.E., but whose sponsors have not yet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of 40 CFR Section 93.122, and shall request that such sponsor develop the location and design concept and scope of the project for the purpose of including the project in the regional emissions analysis.

III.D.2. If the 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 of funds designated under Title 23 U.S.C. or the Federal Transit Act that has the authority to adopt or approve of the project, with a written description of the proposed assumptions. Following consultation with such agencies the MPO shall make assumptions about the location and design concept and scope of the project that are reasonably calculated to estimate the emissions associated with such project. Such assumptions shall be based on the information and comments about the project received by the MPO.

III.E. Process to ensure that plans for construction of regionally significant projects that are not FHWA/FTA projects (including projects for which alternative locations, design concept and scope, or the no-build options are still being considered), including those by recipients of funds designated under Title 23 U.S.C. or the Federal Transit Act, are disclosed on a regular basis, and that any changes to such plans are immediately disclosed.

III.E.1. Prior to conducting a conformity analysis, the MPO shall ensure that CDOT and each municipality, county and public transit agency within the metropolitan planning area, and each agency with approval authority for transportation projects , is notified of the requirement to include regionally-significant projects, and changes to plans for such projects, in the regional emissions analysis.

III.F. Consultation procedures for development of State Implementation Plans.

III.F.1. Minimum Consultation Requirements- SIP development and revision.

In each nonattainment or maintenance area, the LPA or the Division shall establish and maintain a review team for regular consultation to ensure that the transportation community is involved in the development of the implementation plans. Such review team shall also be established to develop and review any SIP revision that includes a new or revised mobile source emissions budget, or that requires a new or revised attainment or maintenance demonstration. The review team may be part of a larger consultation procedure established by the LPA or Division to include all sectors of the community (in addition to the transportation community). The consultation procedure shall comply with the minimum requirements listed below. If the 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 of the MPO, the Division, CDOT, the EPA, FHWA, FTA, and the public transit agency.

III.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 of the draft implementation plan, including supporting documents, to the other members of the review team, and shall provide at least thirty days for the submission of comments on the draft SIP prior to adoption by the LPA.

III.F.1.c. A schedule of meetings or a process for providing adequate notice of subsequent meetings shall be developed as part of the consultation process. The schedule of meetings shall be frequent enough to address all significant issues in a timely fashion.

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 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.

III.F.1.f. The LPA shall respond in written form to written comments received from any of the 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 of any SIP or SIP revision to the MPO, CDOT, the LPA, the public transit agency, the EPA, the FHWA, and FTA.

III.F.2. The LPA shall submit a list of TCMs included in the proposed SIP to the MPO, CDOT and each affected local agency or other sponsoring agency at least thirty days prior to approval of the SIP or SIP revision by the governing board of the LPA.

III.F.3. The SIP development procedures set out in this Section III.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, or to incorporate such other requirements into the SIP.

III.G. Agreements further describing consultation procedures.

III.G.1. The Division may enter into written agreements with the members of the review team to clarify and further develop the procedures for conformity determinations described in this Section III. The Division may also enter into written agreements with the LPA and members of the committee established pursuant to Section III.F. to further clarify or develop the SIP development procedures. The members of the review team may, by mutual agreement, delegate the tasks assigned to them under this rule to other members. Any member of the review team delegating a task shall conduct reasonable oversight of the delegated task as necessary to ensure proper performance.

III.G.2. Nothing in this regulation shall be construed to relieve the parties of the obligations set out in agreements entered into prior to the effective date of this rule, except to the extent that the provisions of such agreements are inconsistent with this rule. The Commission and Division shall continue membership on any MPO committee or council as provided in any such agreements.

III.H. Review of Conformity Determinations by the public, the Air Quality Control Commission, and resolution of conflicts.

III.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 prior to adopting new or amended transportation plans-and programs.

III.H.1.a. Agencies making conformity determinations must provide reasonable public access to relevant documents, consistent with 23 CFR Section 450.316(a). Any charges imposed for public inspection or copying of documents would be consistent with USDOT regulations at 49 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 a finding regarding which Conformity Determinations are routine, per the definition set forth 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 of concurrence with those determinations. The Division shall make the determination regarding whether a Conformity Determination is routine. If a 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 of the 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 of such procedural rules shall be construed as a violation of the SIP, except where such procedural rules otherwise has been incorporated into the SIP.

III.H.3. Upon request of any member of the review team, a conformity determination on an FHWA project located outside of a metropolitan planning area shall be presented to the Commission prior to submittal to FHWA if there 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 later than 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 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 of a conformity determination by the Commission pursuant to this Subsection H., except as provided below at Sections (a) and (b). If the State appeals to the Governor, the final conformity determination must have the concurrence of the Governor. If the Commission does not appeal to the Governor within 14 days, or as provided below at Sections (a) and (b), the MPO or CDOT may proceed with the final conformity determination.

III.H.4.a. The Commission may extend the beginning of the 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.

III.H.4.b. Upon the agreement and concurrence of the 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.

III.H.4.c. For purposes of project level conformity determinations in isolated rural nonattainment and maintenance areas, a "final conformity determination" shall be taken to mean CDOT's completed conformity analysis and recommended finding of conformity to FHWA.

5 CCR 1001-12-III

39 CR 05, March 10, 2016, effective 3/30/2016