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Approval and Promulgation of Air Quality Implementation Plans; District of Columbia; Transportation Conformity Regulations

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Information about this document as published in the Federal Register.

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Environmental Protection Agency (EPA).


Direct final rule.


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.


This rule is effective on July 27, 2010 without further notice, unless EPA receives adverse written comment by June 28, 2010. 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.


Submit your comments, identified by Docket ID Number EPA-R03-OAR-2010-0320 by one of the following methods:

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

B. E-mail:

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 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, 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 or e-mail. The Web site 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, 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 index. 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 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.

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Martin Kotsch, (215) 814-3335, or by e-mail at

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Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.


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 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 Start Printed Page 29895national 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, 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​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 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 July 27, 2010 without further notice unless EPA receives adverse comment by June 28, 2010. 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 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 (Pub. L. 104-4);
  • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
  • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
  • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
  • Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
  • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Start Printed Page 29896Business 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 July 27, 2010. Filing a petition for reconsideration by the 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)).

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List of Subjects in 40 CFR Part 52

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Dated: May 17, 2010.

William C. Early,

Acting Regional Administrator, Region III.

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is amended as follows:

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

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

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Subpart J—District of Columbia

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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:

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Identification of plan.
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(c) * * *

EPA-Approved District of Columbia Regulations

State citationTitle/subjectState effective dateEPA approval dateAdditional explanation
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Chapter 15General and Transportation Conformity
Section 1500General Conformity—Purpose1/8/105/28/10 [Insert page number where the document begins]New Regulation.
Section 1501General Conformity—Requirements1/8/105/28/10 [Insert page number where the document begins]New Regulation.
Section 1502Transportation Conformity—Purpose1/8/105/28/10 [Insert page number where the document begins]New Regulation.
Section 1503Transportation Conformity—Consultation Process1/8/105/28/10 [Insert page number where the document begins]New Regulation.
Section 1504Transportation Conformity—Interagency Consultation Requirements1/8/105/28/10 [Insert page number where the document begins]New Regulation.
Section 1505Transportation Conformity—Conflict Resolution Associated With Conformity Determinations1/8/105/28/10 [Insert page number where the document begins]New Regulation.
Section 1506Transportation Conformity—Public Consultation Procedures1/8/105/28/10 [Insert page number where the document begins]New Regulation.
Section 1507Transportation Conformity—Interagency Consultation Procedures1/8/105/28/10 [Insert page number where the document begins]New Regulation.
Section 1508Transportation Conformity—Procedures for Determining Regional Transportation-Related Emissions1/8/105/28/10 [Insert page number where the document begins]New Regulation.
Section 1509Transportation Conformity—Enforceability of Design Concept and Scope and Project-Level Mitigation and Control Measures1/8/105/28/10 [Insert page number where the document begins]New Regulation.
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Section 1599Definitions1/8/105/28/10 [Insert page number where the document begins]New Regulation.
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[FR Doc. 2010-12929 Filed 5-27-10; 8:45 am]