Rod by comment

0000006677 1/15/2017

Comments on proposed conformity determination and NEPA Air Quality Report for I-70 Project

From: "Robert Yuhnke" <bob.yuhnke@prodigy.net> Subject: Comments on proposed conformity determination and NEPA Air Quality Report for I-70 Project Date: Sat, January 14, 2017 11:05 pm To: contactus@i-70east.com Cc: "Adrian Brown" <abrown@abch2o.com>,armandopayan80@yahoo.com,"CdeBaca, Candi" <candicdebaca@gmail.com>,"Drew Dutcher" <drewdutcherdirect@gmail.com>,"English, Becky" <Beckyrep@gmail.com>,"JD MacFarlane" <jdmac55@comcast.net>,"Joe Middleton" <middleton@twhlaw.com>,"John Rosendahl \(via Google Docs\)" <jrosendahl@gmail.com>,"Lisa Calderon" <lisa.calderon@coloradolatinoforum.org>,"Paul Vorndran" <paul.l.vorndran@gmail.com>,"Thaddeus J Tecza" <thaddeus.tecza@Colorado.EDU>

Greetings, Please find attached comments submitted on behalf of the Sierra Club, Elyria-Swansea Neighborhood Association, Cross Community Coalition and Colorado Latino Forum. The comments include a separate file containing a summary of air quality monitoring data for PM2.5.

Bob Yuhnke 303-499-0425

Attachm ents: untitled-[1.2] Size: 2.2 k Type: text/html 1701-14 Partial Com m ents on Hot-spot Analysis, NEPA Report for I-70 Project.docx Size: 42 k Type: application/vnd.openxmlformats-officedocument.wordprocessingml.document PM25_m onvalue2011, 2012, 2013.csv Size: 1.4 k Type: application/vnd.ms-excel

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Partial Comments on Hot-spot Emissions Analysis and Proposed Conformity Determination These partial comments and requests for documentation are submitted on behalf of the Sierra Club, Elyria-Swansea Neighborhood Association, Cross Community Coalition, and Colorado Latino Forum. These comments focus on information made available to date in response to a request for information and documentation regarding matters relevant to the proposed conformity determination. Commenters will address additional issues after the relevant information, previously requested, is provided to the public.

I.

PM10 Hot-spot Analysis Fails to Comply with Clean Air Act.

The proposed conformity determination for PM10 fails to comply with numerous provisions of the Clean Air Act and EPA’s Hot-spot rule and quantitative Hot-spot Guidance.

A. Conformity Determination Fails to Comply with Clean Air Act Hot-spot Rule.

As discussed in previous comments, the proposed conformity determination fails to comply with EPA’s hot-spot rule because the design value is calculated using historical background air quality data whereas EPA’s Hot-spot rule requires that Estimated pollutant concentrations must be based on the total emissions burden which may result from the implementation of the project, summed together with future background concentrations.

40 C.F.R. §93.123(c)(1) (emphasis added). The Sierra Club comments submitted in response to the draft conformity determination published with the Final EIS identified the future background concentrations submitted to US EPA and approved as part of the Maintenance Plan for PM10 for the Denver nonattainment 1 area. The approved SIP establishes the background air quality for future years that must be used under EPA’s conformity rule to determine whether a project conforms with the applicable implementation plan as required by 42 U.S.C. §7506(c)(1). Colorado performed a detailed modeling analysis of the effects on air quality that are expected from future growth in population, employment, industrial “Each plan must demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the national standard that it implements.” 40 C.F.R. §51.112(a).

1

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activity and traffic, and submitted that analysis as an attainment demonstration for the purpose of satisfying the requirements of §7505 to change the Denver region’s status from nonattainment to attainment. EPA approved that analysis as demonstrating that compliance with the NAAQS will be maintained. The results of that analysis may not simply be disregarded when accounting for the impact that the expansion of I-70 will have on future attainment of the NAAQS for PM10.

When Colorado performed the modeling analysis to demonstrate future attainment for PM10, the expansion of I-70 was not included in the Regional Transportation Plan and was not included in the highway network modeled for the SIP. The purpose of conformity is to fill this gap when new or expanded highway projects add emissions not previously accounted for. For this reason the modeling analysis required by the EPA’s Hot-spot rule and Guidance requires that project emissions be estimated for the year of greatest project emissions during the timeframe of the regional transportation plan to ensure that the project will not cause or contribute to NAAQS violations during that time period. To ensure that this objective is achieved, the Hot-spot rule also required that project emissions be summed with future background concentrations. This conformity procedure provides the analysis needed for a state to fulfill its obligation under Part C of the Clean Air Act to prevent future violations of a NAAQS. The modeling performed for the Maintenance Plan demonstration showed that future concentrations of PM10 in the Denver Metro area are expected to increase steadily through 2030, the end of the forecast period. While predicted peak concentrations are at levels well above current monitored levels, the trend is a reasonable estimate of the impact of growth. Modeled concentrations are about 20 ug/m3 above the background calculated using currant monitoring data. Assuming the modeled values will continue to exceed actual levels by a comparable margin, future background will reach levels between 125 and 130 ug/m3.

Combining these estimated future levels with predicted project emissions (41 ug/m3) in 2040, the total will exceed 165 ug/m3. This level exceeds the maximum level of 154 ug/m3 allowed by the NAAQS. Using historical background air quality when the modeling performed for the Maintenance Plan shows that emissions associated with growth will increase in the future defeats the long-term maintenance purposes of the Act. The failure to use future modeled concentrations for the hot-spot analysis violates both EPA’s hot-spot rule and Colorado’s obligation under Part C and §7505 of the Act to demonstrate and assure that emissions from the I-70 project will not cause or contribute to new violations of the PM10 NAAQS before 2040.

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B. Compliance with EPA’s 2010 Quantitative Hot-spot Guidance.

Even if the “design value” could lawfully be based on historical air quality, the proposed conformity determination does not comply with the procedure for using historical background data as prescribed by §9.3.4 of EPA’s 2010 Hot-spot Guidance issued after notice and comment. ‘‘Transportation Conformity Guidance for Quantitative Hot-Spot Analyses in PM2.5 and PM10 Nonattainment and Maintenance Areas (EPA 420-B-10-040)’’ [hereinafter “2010 Hot-spot Guidance”]. 75 Fed. Reg. 79,370 (Dec.20, 2010).

The Hot-spot Guidance requires that the design value for a project be calculated using the highest daily background value from three years of data collected at the monitor that best represents air quality in the vicinity of the Project. The proposed conformity determination states that background was determined by selecting the 3d highest daily value from three years of data collected at an unidentified monitor.

Commenters requested that the monitor be identified, and that the data set from which the third high value was determined be provided to the public. No response to this request has been received. The monitor has not been identified, and the data reported from that monitor has not been made available for review and comment.

The third high value is not relevant to a conformity determination based on the Guidance EPA issued after notice and comment. The 2010 Guidance has the force of law as a result of being promulgated after notice and comment. “Rules issued through the notice-and-comment process are often referred to as ‘legislative rules’ because they have the ‘force and effect of law.’ Chrysler Corp. v. Brown, 441 U.S. 281, 302-303 (1979).” Perez v. Mortgage Banker’s Assn., 135 S. Ct. 1199, 1203.

Legislative rules may be amended only by notice and comment rulemaking. “‘[I]f a second rule repudiates or is irreconcilable with [a prior legislative rule], the second rule must be an amendment of the first; and, of course, an amendment to a legislative rule must itself be legislative.’” Am. Min. Cong., 995 F.2d at 1109 . The Supreme Court affirmed this construction of the APA in Perez: “[T]he D.C. Circuit correctly read § 1 of the APA to mandate that agencies use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.” Perez, 135 S. Ct. at 1206. Until EPA amends the 2010 Guidance by the notice and comment procedures used to promulgate the Guidance, the 2010 procedure remains in effect.

The continued effectiveness of EPA’s 2010 Guidance is the subject of litigation pending in the DC Circuit Court of Appeals. There the government argues that the

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DC Circuit lacks jurisdiction to review EPA’s decision to amend the guidance without notice and comment, but contends that jurisdiction lies in the district courts to review EPA’s amendments to the Guidance. The Sierra Club disagrees, but raises the issue here to preserve the claim for review in the district court in the event that the Court of Appeals determines that it lacks jurisdiction, or does not have exclusive jurisdiction.

C. FHWA Has Not Complied with Conformity Disclosure Requirements.

Commenters continue to request the production of information and documentation required to be made available pursuant to the public involvement requirements of the Hot-spot rule, 40 C.F.R. §93.105(e), and the documentation and disclosure requirements of section 3.10 of EPA’s Hot-spot Guidance. The commenters incorporate here by reference the Request for Documentation and Data submitted ten days ago. Commenters assert the right to submit timely comments within 45 days following public disclosure of the information relevant to the conformity determination that was requested, but not yet disclosed. The comment period cannot be commenced or closed with respect to data and documents not made available to the public for comment.

Full and comprehensive disclosure is especially important in situations such as this where the results from one analysis to the next is so fundamentally different.

Despite the acknowledgement that traffic will increase between 2035, which was the analysis year for the last analysis, and 2040, which is the analysis year for this analysis, the ambient impact of emissions is predicted to decrease from 61 ug/m3 to 41 ug/m3, a 34% decrease. In addition, the latest NEPA report claims that the emissions inventory has not changed. The NEPA report issued with the proposed conformity determination states, at 2, that Items not updated in this document include the emissions inventory of health-based National Ambient Air Quality Standards (NAAQS). Emissions inventories for criteria pollutants were not updated presumably because they did not change. If emissions from the project did not change, then some explanation is necessary to inform the public and decisionmakers about the ambient impact of the same emissions could have decreased by 34%.

Included in the request are – 1) The EPA email reported in the proposed conformity determination describing the permissible procedure for calculating the design value, and background air quality data used to calculate the design value (discussed above);

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2) The change in traffic patterns and vehicle counts between 2035 and 2040 used to determine traffic speeds and volumes that were used as inputs to the MOVES model for estimating vehicle emissions; 3) A description of the changes in project design between the 2035 and 2040 analysis that were offered as an explanation in the NEPA comparison report as accounting for some of the change in Project emissions between the 2035 and 2040 modeling runs; 4) Comparative plots showing the changes in receptor locations that were offered as an explanation in the NEPA comparison report as accounting for some of the change in the ambient impact of Project emissions between the 2035 and 2040 modeling runs; 5) Data used to determine why the emission factors for re-entrained road dust, brake and tire wear emissions were changed between the 2035 and 2040 model runs, including justification for the changes including explanations for how the data was obtained and why the changed emissions factors are considered more reliable; 6) Descriptions of the control measures that CDOT claims it will implement to reduce re-entrained dust emissions, and documents demonstrating that such commitments are enforceable obligations of the Colorado SIP; 7) Documentation of the assumptions used to determine fleet mix (heavy duty trucks vs. medium and light duty vehicles) for the vehicles expected to be travelling I-70 during the analysis year.

Without these data and explanations, the public and elected officials has been deprived to date of an opportunity to perform an assessment of the data, methods, and procedures used by FHWA/CDOT to demonstrate conformity, and to provide informed and meaningful feedback to the agencies.

Citizen commenters who asked for explanations of how the agencies reached their conclusions, received responses from Vanessa Henderson such as the following:

The model data is being provided upon request. Please let me know if you would like me to send it to you; note that the files are large and a lot of them require modeling software to open. I just want to verify that you are able to accept them through your email before I send the files.

The Sierra Club and other commenters received the data files without any explanation of how the data was derived or modified since the 2035 modeling analysis was performed. To assist in understanding how the raw data might address questions raised in the Request for Documentation, the Sierra Club sought the assistance of experts to evaluate the limited data files provided after the Request

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for Documentation was submitted. Commenters received the following response explaining that CDOT did not provide enough information for anyone to understand the basis for the differences between the 2035 and 2040 analyses:

James Wu

Becky, Here's my summary/comments regarding the materials provided by CDOT in response to key items noted in the attorney's comments: - Design Value Calculation, CDOT has provided information from EPA on the new PM10 background value but not additional explanation or information how emissions were determined. They have provided the technical modeling input/outputs, but not any explanation or info for non-technical or non-air specialists to be able to understand the basics of how results changed from FEIS to new report. The components of PM10 emissions/results is not clearly illustrated anywhere, although the new road dust emission factors is provided; there does not appear to be sufficient description of the dust mitigation control measures (what is "sweepbox" or "GPMD=General PM10 Modeling Domain (non-sweepbox)"??) or justification for the % reduction achieved.

- Requested documentation of changes, although CDOT has provided technical model files (AERMOD dispersion, MOVES emission factors, speeds, truck percentages, etc.), this data does not clearly explain changes from the FEIS AQ analysis. One would have to perform an in-depth technical review in order to answer key critical questions about differences in the new analysis. (Although not explicitly requested, CDOT has not provided modeling files (CAL3QHC) and other supporting data (selection of background values) for the CO hotspot analysis.)

- Modeling inputs and output, these are provided for PM10, but do not indicate where modeling was altered from FEIS analysis - Road Dust, insufficient information provided by CDOT on dust control measures and emission reductions, please see comments under "Design Value" above. Also how do the non-road dust PM10 emissions go down in the new modeling analysis? Which components of the PM10 emissions is the greatest contributor?

- Traffic Data, although speed data is provided, it does not appear that CDOT has provided a revised traffic report or updated traffic data that can be utilized to help understand changed inputs to the air quality modeling.

As I mentioned when we talked, modeled project emissions from roadway vehicles for PM10 & CO are expected to decrease resulting from CDOT changing the worst-case project start or emissions modeling year from 2010 to 2022. MOVES2014 assumes newer future vehicles are cleaner and also going into the future, older vehicles are eventually replaced with newer/later models with lower emissions. The attorney's comments are correct that CDOT has not clearly presented which or how such factors have affected the

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analysis results, e.g., do the emission reductions cancel out the worsened air quality from traffic volume increases, or dust mitigation is the primary factor in reducing modeled project PM10 emissions?

Let me know if you have questions and I will do my best to help.

Thanks, James Wu Project Manager Environmental Compliance Section Air Resource Specialists, Inc. 1901 Sharp Point Drive, Suite E Fort Collins, CO 80525 Phone: (970) 484-7941 Fax: (970) 484-3423

CDOT asserted in its January 11, 2017, letter to Denver City Council members denying their request for an extension of the comment period that – All data underlying the analyses have been available upon request since the beginning of the comment period. The files have been requested by and provided promptly upon request to several members of the public.

The expert response demonstrates that “All data” requested by commenters have been not been provided. The failure of CDOT to timely disclose relevant information and provide explanations for the differences between its 2035 and 2040 modeling analyses creates a strong inference that CDOT is merely trying to cover up its failure to meet its full disclose obligations under the Clean Air Act and NEPA. Those rules require disclosure of relevant information used to make conformity determinations before commencing the comment period, not merely after the data are requested. More importantly, the expert who reviewed the data received from CDOT makes clear that data needed to understand the analyses were not provided after they were requested.

This is the kind of deception and misrepresentation expected of the Trump Administration, not from Hickenlooper’s and Obama’s.

II.

Modeling Analysis Demonstrates That Violations of PM2.5 NAAQS Are Probable.

For reasons discussed in prior comments submitted on the Supplemental Draft EIS and the Final EIS, the NEPA analysis for the Project is deficient because of the high probability that emissions from the Project will cause violations of the NAAQS for PM2.5. The latest analysis confirms the probability that such

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violations will occur. The failure to fully investigate the likelihood of such violations, and to identify alternatives and mitigation measures sufficient to avoid these violations renders the EIS inadequate under NEPA and section 109(h) of the Federal-Aid Highway Act. The NEPA report issued with the proposed conformity determination states, at 2, that Items not updated in this document include the emissions inventory of health-based National Ambient Air Quality Standards (NAAQS). Emissions inventories for criteria pollutants were not updated presumably because they did not change. In the AQ Technical Report issued with the Final EIS, total PM10 emissions were reported as 0.47 tons per day, and the fine fraction (particles smaller than 2.5 microns in size) of PM10 as constituting 0.20 tons per day. In other words, 42.5% of Project emissions are PM2.5.

Applying this fraction to the modeled results for PM10 in the proposed conformity determination, Project emissions of total PM10 is predicted to add 41 ug/m3 to the ambient air. Of this total amount, 17.4 ug/m3 will be particles smaller than 2.5 microns. The Project will add 17.4 ug/m3 to background levels of PM2.5.

Monitor data from the Commerce City monitor show that the 98th percentile design value for the monitor has consistently exceeded 20 ug/m3 during recent years. The data collected at the Yuma monitoring station that commenced data collection in 2014 shows 98th percentile design values near 30 ug/m3. See air quality data reported in Appendix A. Applying section 9.3.3 from EPAâ&#x20AC;&#x2122;s 2010 Hot-spot Guidance for calculating the design value for a highway project, the average of the three highest modeled days should be added to the 98th percentile monitored value.

In this case, the Air Quality report for the conformity determination reports the value monitored for the 6th highest day during a three-year period. This value is less than the average of the highest days for the modeling period. Therefore adding the 6th highest day to background is a highly conservative estimate of the effects of project emissions of PM2.5.

When 17.4 ug/m3 of PM2.5 emitted from the Project is added to the 98th percentile design value reported from either the Commerce City or Yuma monitoring sites, the total exceeds 35 ug/m3. These data demonstrate that the project is highly likely to violate the NAAQS for PM2.5.

The State may not authorize a project that will violate its obligation under Part C of the Clean Air Act to prevent future violations of the NAAQS in an area that is currently in attainment.

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III.

Modeling Fails to Account for NAAQS Violations At Ends of Cover.

The modeling analysis for the conformity determination presumably makes the same assumption discussed in the prior Air Quality report, i.e., that half of the emissions emitted under the cover will be released into the ambient air from each end of the cover. This assumption is not documented by any relevant research. This assumption is critical because if all of the emissions trapped and concentrated under the eight block long cover are released from one end, the resulting concentrations will be double those assumed for the modeling analysis, and will exceed the level of the NAAQS at that location. If this kind of release occurs for at least 4 days during any three-year period, the NAAQS will be violated and children playing on the playground built on top of the cover near the west outlet from the cover will be exposed to dangerously high levels of pollution.

The 800 feet long cover will trap pollutants emitted while vehicles are under the cover, and concentrate the pollution until it is released into the neighborhood air at one end of the cover or the other. CDOT estimated the concentrations of pollutants coming from under the cover by assuming that one-half of emissions trapped by the cover will be released at each end. This is an appropriate assumption when there is no wind, and when traffic is roughly equal in each direction. But when wind blows from one end of the cover, or traffic is predominantly moving in one direction, the external wind or the wind created by traffic under the cover will push the pollution out one end or the other.

The wind rose developed for the location, and used in the air quality modeling, shows consistent wind patterns for the project area. Most nights and mornings the wind blows from the SSW following the contour of the Platte River valley. Under those conditions, winds above speeds of 10-15 mph will blow the pollution from west to east causing pollution trapped under the cover to be concentrated at the east end of the cover. During the afternoons on warm days, the prevailing wind shifts to blow from the east toward the mountains. During the afternoon rush hour when traffic is the worst, emissions trapped under the cover will be blown out the west end next to the playground at Swansea Elementary School. Under either scenario, all of the pollution will be concentrated at one end or the other. On some days of the year, winds will persist all day from one direction or the other. Under those conditions the pollution can be expected to be concentrated at one end of the cover for the entire day. If four of these days occur during any three-year period, the

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project can be expected to cause violations of the NAAQS which only allows three such days to exceed the NAAQS during any three-year period.

But CDOT does not account for any of these prevailing wind scenarios. The modeling assumes that all 1095 days during a three-year period will be windless with no movement of pollution toward one end of the cover. So even if the wind blew the pollution out one end only once very 30, 60 or 90 days during the year, the standard would be violated many more times than is allowed. Their assumption that half the pollution will come out each end EVERY day, means they are assuming the wind will never blow through the tunnel under the cap. That assumption clearly defies both the wind data and reality. It is unreasonable to assume that ONLY half of the pollution will be emitted from each end of the cover every day of the year. CDOT’s failure to account for concentrations in the ambient air that will result when wind and traffic push the pollution out one end of the cover is a fundamental flaw in the analysis. CDOT’s assumption is merely a figment of a design engineer’s imagination that has no relationship to reality.

An expert consulted by the Sierra Club agrees that a more comprehensive investigation is required to estimate the effects on ambient air quality of pollution trapped under the cover. Without such an investigation, the requirements of reasoned decisionmaking are not satisfied.

Christopher Tessum

<ctessum@uw.edu>

Hi Becky, In case it is any help, here are some additional thoughts about the tunnel.

I did a quick search on google scholar, and I didn't find any previous studies about how adding a tunnel affects highway air pollution. It's possible that there are precedents in environmental assessments for previous road projects, but I didn't look.

In addition to prevailing wind blowing the pollution in one direction or other through the tunnel, there will also be induced air movement caused by the vehicles moving through the tunnel (similar to the wind you feel when you're standing on a subway platform before and after a train comes through). If there are more vehicles going in one direction than the other (as may be the case during rush hour), this would cause pollution to exit moreso at one end of the tunnel than the other. This effect may be more or less important than the prevailing wind direction. Modeling would need to be done to figure it out.

It is also possible that the tunnel would be ventilated to avoid poisoning the vehicle drivers. The fans would the provide additional outlets for the pollution.

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If the tunnel is on a hill, the vehicles traveling up the hill will likely be emitting more pollution, so the uphill end of the tunnel would likely have higher concentrations.

Finally, the pollution may spend a while in the tunnel after being emitted from the vehicle but before exiting the tunnel. During this time, the relatively high concentrations but lack of sunlight could cause interesting transformations to occur in the chemical composition of pollution, for example potentially turning emissions of gases into PM2.5 at a faster rate than would happen otherwise.

Because of this, I think if the DOT is claiming that half of the emissions would exit unchanged from either end of the tunnel without doing a modeling analysis that accounts for these factors, it might be reasonable to ask them to do a more thorough analysis before moving forward.

Chris

Respectfully submitted, Robert E. Yuhnke Counsel for Commenters

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