Bill Richardson 

Governor 

State of New Mexico 

O& ofthe Cjovernor 

May 13,2009 

Mr. Larry Starfield 

Acting Regional Administrator 

U.S. Environmental Protection Agency, Region 6 

1445 Ross Avenue 

Dallas, TX 75202-271 1 

Dear Mr. Starfield: 

On behalf of the New Mexico Environment Department, I am pleased to submit to the 

Environmental Protection Agency the enclosed revision to the New Mexico State 

Implementation Plan (SIP). This revision includes amendments to New Mexico Administrative 

Code (NMAC) 20.2.99 NMAC - Conformity to the State Implementation Plan of Transportation 

Plans, Programs, and Projects. The hearing record for this SIP revision is attached, which 

includes the filed regulation, transcripts, exhibits, public notices, affidavits of publication, the 

notice of intent to testify, and public comments. 

If there are any questions concerning this SIP submittal, please contact Mary Uhl, Air Quality 

Bureau Chief, at (505) 476-4301. 

Sincerely, 

Bill Richardson 

Governor of New Mexico 

State Capitol Room 400 Santa Fe, New Mexico 87501 505-476-2200 www.governor.state.nm.us 
Enclosures 

cc: Jeff Riley, EPA Region 6 

Carl Young, EPA Region 6 

Ron Curry, NMED, Cabinet Secretary 

Jim, Norton, NMED, Environmental Protection Division Director 

Mary Uhl, NMED, Air Quality Bureau Chief 
NMAC TRANSMITTAL FORM 

1.24.10 NMAC [Sequence # 1 

1 Environmental Improvement Board 1 667 I 

P.O. Box 26110 

1190 St. Francis Drive, Santa Fe, New Mexico 87502 

Name Gail Cooke I Phone # 1 (505) 476-4319 FAX (505) 476-4375 

E-mail Gail.cooke@state.nm.us 

New Amendment Renumber Repeal 0 Emergency 

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Conformity to the State Implementation Plan 

of Transportation Plans, Programs, and 

Projects 

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Environmental Protection 

Name: Gregory Green Check if delegated 

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Air Quality 

(Statewide) 

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20.2.99 NMAC Sections 2, 7, 11 1, 

112,113, 115, 122,124, 125,128, 

133, 134, 135, 137, 138, 139, 140, 

148 & 151. 
This is an amendment to 20.2.99 NMAC, Sections 2,7, 1 1 1, 112, 1 13, 115, 123. 124: 12.5, 128, 133, 134, 135, 137, 

138, 139, 140, 148, and 15 1 effective 6/1/09. 

20.2.99.2 SCOPE. Agencies affected by this part are: federal transportation agencies (the federal highway 

administration (FHWA) and the federal transit administration (FTA) of the United States department of 

transportation (US DOT)), and state and local agencies responsible for transportation planning and air quality 

management that are within the geographic jurisdiction of the environmental improvemeilt board (see also 20.2.99.6 

NMAC). 

A. The provisions of this part shall apply in all non-attainment and maintenance areas for 

transportation-related criteria pollutants for which the area is designated non-attainment or has a maintenance plan. 

B. The provisions of this part apply with respect to emissions of the following criteria pollutants: 

ozone, carbon monoxide, nitrogen dioxide, and particles with an aerodynanlic diameter less than or equal to a 

nominal 10 micrometers (PMIO) and particles with an aerodynamic diameter less than or equal to a nominal 2.5 

micrometers (PM2.5). 

C. The provisions of this part apply with respect to emissions of the following precursor pollutants in 

nonattainment or maintenance areas: 

(1) volatile organic compounds and nitrogen oxides in ozone areas; 

(2) nitrogen oxides in nitrogen dioxide areas; 

(3) volatile organic compounds and/or, nitrogen oxides, in PMlO areas if 

(a) the EPA region 6 administrator or the department has made a finding (including a finding 

as part of a SIP or a submitted implementation plan revision) that transportation-related emissions of one or both of 

these precursor emissions within the nonattainment area are a significant contributor to the PMlO nonattainment 

problem and has so notified the MPO (or the NMDOT in the absence of an MPO) and US DOT; or 

(b) the applicable SIP (or implementation plan submission) establishes an approved (or 

adequate) budget for such emissions as part of the reasonable further progress, attainment or maintenance strategy; 

(4) nitrogen oxides in PM2.5 areas, unless both the EPA regional administrator and the department 

have made a finding that transportation-related emissions of nitrogen oxides within the nonattainment area are not a 

significant contributor to the PM2.S nonattainment problem and has as notified the MPO (or the NMDOT in the 

absence of an MPO) and US DOT, or the applicable implementation plan (or implementation plan submission) does 

not establish as approved (or adequate) budget for sucb emissions as part of the reasonable further progress, 

attainment or maintenance strategy; and 

(5) VOC, sulfur [ex&&%++- dioxide (SO21 and/or ammonia (NH3) in PM2.5 areas either if the 

EPA regional administrator or the department has made a finding that transportation-related emissions of any of 

these precursors within the nonattainment area are a significant contributor to the PW.5 nonattinment problem and 

has so notified the MPO (or the NMDOT in the absence of an MPO) and US DOT, or it the applicable 

implementation plan (or implementation plan submission) establishes and approved (or adequate) budget for such 

emissions as part of the reasonable further progress, attainment or maintenance strategy. 

D. The provisions of this part apply to PM2.5 nonattainment and maintenance areas with respect to 

PM2.5 from re-entrained road dust if the EPA regional administrator or the department has made finding that reentrained road dust emissions within the area are a significant contributor to the PM2.5 nonattainment problem and 

has so notified the MPO (or the NMDOT in the absence of an MPO) and US DOT, or if the applicable SIP (or 

implementation plan submission) includes re-entrained road dust in the approved (or adequate ) budget as part of the 

reasonable further progress, attainment or maintenance strategy. Re-entrained road dust emissions are produced by 

travel and paved and unpaved roads (including emissions from anti-skid and deicing material(s)). 

E. The provisions of this part apply to ~naintenance areas [w 3"s E?A PA A . . through the last 

year of a maintenance area's approved CAA section 175A(b) maintenance plan, [- . . ~1 

[12/14/94; 11/23/98; 20.2.99.2 MAC - Rn, 20 NMAC 2.99.101 l0/3 1/02; A, 10/15/05; A, 9/1/07; A, 06/01/09] 

20.2.99.7 DEFINITIONS. Terms used but not defined in this part shall have the meaning given them by 

the CA4 titles 23 and 49 U.S.C., US EPA regulations, US DOT regulations, and 20.2.2 WAC (Def~tions), in that 

order of priority. 

A. "I-hour ozone NAAQS" means the 1-hour ozone national ambient air quality standard codified 

at 40 CFR 50.9. 

20.2.99 NMAC 
B. "8-hour ozone NAAQS" means the 8-hour ozone national ambient air quality standard codified 

at 40 CFR 50.10. 

C. "Applicable implementation plan" is defined in Section 302(q) of the CAA and means the 

portion (or portions) of the implementation plan, or most recent revision thereof, which has been approved under 

Section 110 (of the CAA), promulgated under Section I I O(c), or promulgated or approved pursuant to regulations 

promulgated under Section 301(d) and which implenients the relevant requirements of the Ck4. 

D. "CAA" nieans tlie Clean Air .4ct, as amended, 42 U.S.C. 7401, et seq. 

E. "Cause or contribute to a new violationf1 for a project means: 

(1) to cause or contribute to a new violation of a standard in tlie area substantially affected by the 

project or over a region which would otherwise not be in violation of the standard during the future period in 

question, if tlie project were not inipleniented, or 

(2) to contribute to a new violation in a manner that would increase the frequency or severity of a 

new violation of a standard in such area. 

F. "CFR" means the code of federal regulations. 

G. "Clean data" means air quality monitoring data determined by US EPA to meet the e national 

ambient air quality standard. 

H. "Conformity analyses" means regional or localized "hot-spot" computer modeling assessment or 

any other analyses which serve as the basis for the conformity determination. 

I. "Conformity determination" means the demonstration of consistency witli motor vehicle 

emissions budgets for each pollutant and precursor identified in the applicable SIP. The conformity determination is 

tlie affirmative written documentation declaring conformity with the applicable SIP which is submitted to FKWA 

and FTA for approval with EPA consultation. An affirmative conformity determination means conformity to the 

plans purpose of eliminating or reducing the severity and number of violations of the NAAQS and achieving 

expeditious attainment of such standards; and that such activities will not: 

(1) cause or contribute to any new violations of any standard in any area; 

(2) increase the frequency or severity of any existing violation of any standard in any area; or 

(3) delay timely attainment of any standard or any required interim emission reductions or other 

milestones in any area. 

J. "Consultation" means that one party confers with another identified party, provides or makes 

available all relevant information to that party, and, prior to taking any action, considers the views of that party and 

(except with respect to those actions for which only notification is required) responds to written comments in a 

timely, substantive written manner prior to any final decision on sucb action. Such views and written response shall 

be made part of the record of any decision or action. Specific procedures and processes are described in 20.2.99.1 16 

through 20.2.99.124 NMAC. 

K. "Control strategy implementation plan revision" is the implementation plan which contains 

specific strategies for controlling the emissions of and reducing ambient levels of pollutants in order to satisfy CAA 

requirements for demonstrations of reasonable further progress and attainment (including implementation plan 

revisions submitted to satisfy CAA Sections 172(c), 1 S2(b)(l), 182(c)(?)(A), 182(c)(?)(B), 187(a)(7), 189(a)(l )(B), 

189(b)(l)(A) and 189(d); and Sections 192(a) and 192(b), for nitrogen dioxide; and any otlier applicable CAA 

provisions requiring a demonstration of reasonable further progress or attainment). 

L. "Department" means the New Mexico environment department. 

M. "Design concept" means the type of facility identified by the project, e.g., fieeway, expressway, 

arterial highway, grade separated highway, reserved right-of-way rail transit, mixed traffic rail transit, exclusive 

busway, etc. 

N. "Design scope" means the design aspects of a facility which will affect the proposed facility's 

impact on regional en~issions, usually as they relate to vehicle or person carrying capacity and control, e.g., number 

of lanes or tracks to be constructed or added, length of project, signalization, access control including approximate 

nuniber and location of interchanges, preferential treatment for high-occupancy vehicles, etc. 

0. "Donut areas" are geographic areas outside a metropolitan planning area boundary, but inside the 

boundary of a nonattainment or maintenance area that contains any part of a ~netropolitan area(s). These areas are 

not isolated rural nonattainment and maintenance areas. 

P. "FHWA" means the federal highway administration of US DOT. 

Q- "FHWA/FTA project", for the purpose of this part, is any highway or transit project which is 

proposed to receive funding assistance and approval through the federal-aid highway program or the federal mass 

transit program, or requires federal highway administration (FHWA) or federal transit administration (FTA) 
approval for some aspect of the project, such as connection to an interstate highway or deviation from applicable 

design standards on the interstate system. 

R. "Forecast period" with respect to a transportation plan is the period covered by the transportation 

plan pursuant to 13 CFR part 450. 

S. "FTA" means the federal transit administration of US DOT. 

T. "Highway project" is an undertaking to implement or modify a highway facility or lughwayrelated program. Such an undertaking consists of all required phases necessary for implementation. For analytical 

purposes, it shall be defied sufficiently to: 

(1) connect logical termini and be of sufficient length to address environmental matters on a broad 

scope; 

(2) have independent utility or significance, i.e., be usable and be a reasonable expenditure even if no 

additional transportation improvements in the area are made; and 

(3) not restrict consideration of alternatives for other reasonably foreseeable transportation 

improvements. 

U. "Horizon year" is a year for which the transportation plan describes the envisioned transportation 

system in accordance with 20.3.99.125 NMAC. 

17. "Hot-spot analysis" is an estimation of likely future localized CO, PMIO, and/or PM2.5 pollutant 

concentrations and a comparison of those concentratious to the national ambient air quality standards. Hot-spot 

analysis assesses impacts on a scale smaller than the entire nonattainment or maintenance area, including, for 

example, congested roadway intersections and highways or transit terminals, and uses an air quality dispersion 

model to determine the effects of emissions on air quality. . ~ 

W. "Increase the frequency or severity" means to cause a location or region to exceed a standard 

more often or to cause a violation at a greater concentration than previously existed andlor would otherwise exist 

during the future period in question, if the project were not implemented. 

X. "Isolated rural nonattainment and maintenance areas" are areas that do not contain or are not 

part of any nletropolitan planning area as designated under the transportation planning regulations. Isolated rural 

areas do not have federally required nletropolitan transportation plans or TIPS and do not have prqjects that are part 

of the enlissions in such areas are instead included in statewide transportation improvement programs. These are not 

donut areas. 

Y. "Lapse" means that the conformity determination for a transportation plan or TIP has expired, 

and thus there is no currently conforming transportation plan and TIP. 

Z. "Limited maintenance plan" is a maintenance plan that EPA has determined meets EPA's 

limited maintenance plan policy criteria for a given NAAQS and pollutant. To qualify for a limited maintenance 

plan, for example, an area must have a design value that is significantly below a given NAAQS, and it must be 

reasonable to expect that a NAAQS violation will not result from any level of future motor vehicle emissions 

growth. 

AA. "Maintenance area" means any geographic region of the United States previously designated 

nonattainrnent pursuant to the CAA Amendments of 1990 and subsequently redesignated to attainment subject to the 

requirement to develop a maintenance plan under Section 175A of the CAA, as amended. 

AB. "Maintenance plan" means an implementation plan under Section 175A of the CAA, as 

amended. . . AC. "Metropolitan planning organization (MPO)" [[ 

-1 means the policy board of an organization created as a result of the desiaation process in 23 

U.S.C. 134(d). 

AD. "Milestone" has the meaning given in CAA Sections 182(g)(l) and 189(c) for serious and above 

ozone nonattainment areas and PM 10 nonattainrnent areas, respectively. For all other nonattainment areas, a 

milestone consists of an emissions level and the date on which that level is to be achieved as required by the 

applicable CAA provision for reasonable further progress towards attainment. 

AE. "Motor vehicle emissions budget" is that portion of the total allowable enlissions defined in the 

submitted or approved control strategy implementation plan revision or maintenance plan for a certain date for the 

purpose of meeting reasonable further progress n~ilestones or demonstrating attainment or maintenance of the 

NAAQS, for any criteria pollutant or its precursors, allocated by the SIP to highway and transit vehicle use and 

enlissions. 

20.2.99 NMAC 
AF. "National ambient air quality standards (NAAQS)" are those standards established pursuant to 

Section 109 of the CAA. 

AG. "NEPA" means the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321, et 

seq. 

AH. "NEPA process completion", for tl~e purposes of this part, with respect to FHWA or FTA, 

means the point at which there is a specific action to make a determination that a prqject is categorically excluded. to 

make a finding of no significant impact, or to issue a record of decision on a final environmental impact statement 

under NEPA. 

AI. "NMDOT" means the New Mexico department of transportation or its successor agency or 

authority, as represented by the department secretary or his or her designee. 

AJ. "Nonattainment area" means any geographic region of the United States which has been 

designated as nonattainment under Section 107 of the CAA for any pollutant for which a national ambient air quality 

standard exists. 

AK. "Project" means a highway prolect or transit project. 

AL. "Protective fmding" means a determination by US EPA that a submitted control strategy 

implementation plan revision contains adopted control measures or written commitments to adopt enforceable 

control measures that filly satisfy the emissions reductions requirements relevant to the statutory provision for 

which the implementation plan revision was submitted, such as reasonable further progress or attainment. 

AM. "Recipient of funds designated under title 23 U.S.C. or the federal transit laws" means any 

agency at any level of state, county: city, or regional government that routinely receives title 73 U.S.C. or federal 

transit law funds to construct FHWMTA projects, operate FHWMTA projects or equipment, purchase 

equipment, or undertake other services or operations via contracts or agreements. This defmition does not include 

private landowners or developers, or contractors or entities that are only paid for senices or products created by 

their own employees. 

AN. "Regionally significant project" means a transportation project (other than an exempt project) 

that is on a facility which serves regional transportation needs (such as access to and from the area outside of 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 most terminals themselves) and would normally be included in the 

modeling of a metropolitan area's transportation network, including at a minimum: 

(1) all principal arterial highways; and 

(2) all f~ed guideway transit facilities that offer an alternative to regional highway travel. 

AO. "Safety margin" means the amount by wliich the total projected emissions from all sources of a 

given pollutant are less than the total emissions that would satisfy the applicable requirement for reasonable fiuther 

progress, attainment, or maintenance. 

AP. "Standard" means a national ambient air quality standard. 

AQ. "State implementation plan (SIP)" means an applicable implementation plan and the applicable 

portion (or portions) of the New Mexico state implementation plan, or most recent revision thereof, which has been 

approved under Section 1 10, or promulgated under Section 1 10(c), or proniulgated or approved pursuant to 

regulations proniulgated under Section 30 1 (d) of the CAA and which implements the relevant requirements of the 

CAA (see the definition for "applicable implementation plan"). 

AR. "Title 23 U.S.C." means title 23 of the United States Code. 

AS. "Transit" is mass transportation by bus, rail, or other conveyance which provides general or 

special service to the public on a regular and continuing basis. It does not include school buses or charter or 

sigl~tseeing services. 

AT. "Transit project" is an undertaking to implement or modify a transit facility or transit-related 

program; purchase transit vehicles or equipment; or provide financial assistance for transit operations. It does not 

include actions that are solely within the jurisdiction of local transit agencies, such as changes in routes, schedules, 

or fares. It may consist of several phases. For anaiytical purposes, it shall be defined inclusively enough to: 

(I) connect logical termini and be of sufficient length to address environmental matters on a broad 

scope; 

(2) have independent utility or independent significance, i.e., be a reasonable expenditure even if no 

additional transportation improvements in the area are made; and 

(3) not restrict consideration of alternatives for other reasonably foreseeable transportation 

improvements. 

AU. "Transportation control measure (TCM)" is any measure that is specifically identified and 

committed to in the [SIP] applicable implementation plan. including a substitute or additional TCM that is 

20.2.99 NMAC 
incorporated into the applicable SIP through the process established in CAA section 176(c)(81. that is either one of 

the types listed in Section 108 of the CAA, or any other nleasure for the purpose of reducing enlissions or 

concentrations of air pollutants from transportation sources by reducing vehicle use or changing traffic flow or 

congestion conditions. Notwithstanding the above, vehicle technology-based, fuel-based, and maintenance-based 

measures which control the emissions from vehicles under fixed traffic conditions are not TCMs for the purposes of 

this part. 

A. "Transportation improvement program (TIP)" means a [- 

-1 transportation improvement prooram developed bv a lnetropolitan 

planning oreanization under 23 [€R&p&4%] U.S.C. 134(i). 

AW. "Transportation plan" rneans the official intermodal metropolitan transportation plan that is 

developed through the metropolitan planning process for the metropolitan planning area, developed pursuant to 7-3 

CFR part 450. 

AX. "Transportation project" is a highway project or a transit project. 

AY. "US EPA" means the United States environmental protection agency 

AZ. "US DOT" means the United States department of transportation. 

BA. "Written conimitment" for the purposes of this part means a written commitment that includes a 

description of the action to be taken; a schedule for the con~pletion of the action; a demonstration that funding 

necessary to implement the action has been authorized by the appropriating or authorizing body; and an 

acknowledgment that the commitment is an enforceable obligation under the applicable implementation plan. 

[12/14/94; 11/23/98: 20.2.99.7 NMAC - Rn, '70 NMAC 2.99.107, 10/31/02; A, 10/15/05; A, 9/1/07; A, 06/01/09] 

20.2.99.111 FREQUENCY OF CONFORMITY DETERMINATIONS: 

- A. Conformity detenninations and conformity redeterminations for transportation -1 &, TIPS, 

and FHWAFTA pro~ectsliall be made according to the requirements of 20.7.99.1 1 1 NMAC through 20.7.99.1 15 

NMAC and the SIP. 

B. Durinrr the twelve (17) month mace period referenced in 20.2.99.1 12 MAC. 20.2.99.1 13 

NMAC. and 20.2.99.1 15 NMAC. a project may be found to conform according to the requirements of this 

subsection (Subsection B of 20.2.99.1 1 1 NMAC) if: 

(1) the project is included in the currently conforming transportation plan and TIP (or regional 

emissions analysis): or 

(2) the proiect is included in the most recent conforming transportation plan and TIP (or regional 

enussions analysis). 

[12/14/94; 11/23/98; 20.2.99.1 11 NMAC - Rn, 2O.NMAC 2.99.1 11, 10/31/02; A, 06/01/09] 

20.2.99.112 FREQUENCY OF CONFORMITY DETERMINATIONS - TRANSPORTATION PLANS. 

A. Each new transportation plan shall be found to conform before the transportation plan is approved 

by the MPO (or NMDOT in the absence of an MPO) and accepted by the US DOT. 

B. All transportation plan [i&s&s] amendments shall be found to conform before the transportation . . plan [-I amendments are approved by the MPO (or NMDOT in the absence of an MPO) or accepted by the 

US DOT, unless the [fet.ifieA] amendment merely adds 01. deletes exempt projects listed in [70.1.99.!49] 

20.2.99.151 NMAC [[ . . . . . - .-. . -- 1. The 

conformity determination shall be based on the transportation plan and the[&] amendment taken as a whole. 

C. The MPO and US DOT shall determine the conformity of the transportation plan (including a new 

regional emission analysis) no less frequently than every [&ee49] four years. If more than [&we01 four (4) 

years elapse after US DOT'S conformity determination without the MPO and US DOT determining conformity of 

the transportation plan, a twelve (12) month gace period will be implemented as described in Subsection B of 

20.2.99.1 11 NMAC. At the end of this twelve (12) month grace period. the existing confornuty determination will 

lapse. 

[12/14/94; 11/23/98; 30.2.99.1 12 NMAC - Rn, 20 NMAC 2.99.1 12, 10/31/01; A, 10/15/05; A, 06/01/09] 

20.2.99-113 FREQUENCY OF CONFORMITY DETERMINATIONS - TRANSPORTATION 

IMPROVEMENT PROGRAMS. 

A. A new TIP must be found to confoml before the TIP is approved by the MPO (or NMDOT in the 

absence of an MPO) or accepted by the US DOT. 

20.2.99 NMAC 5 
B. A TIP amendment requires a new conformity deternunation for the entire TIP before the 

amendiilent is approved by the MPO (or NMDOT in the absence of an MPO) or accepted by the US DOT, unless 

the amendment merely adds or deletes exempt projects listed in 20.2.99.149 NMAC and has been made in 

accordance with the notification provisions of 20.1.99.122 NMAC. 

C. The MPO and US DOT shall determine the conformity of the TLP (including a new regional 

emissions analysis) no less frequently than every four (4) years. If more than four (4) years elapse 

after US DOT'S confornlitv determination without the MPO and US DOT determining conformitv on the TIP, a 

twelve (12) month erace period will be imvlemented as described in Subsection B of 20.2.99.1 11 NMAC. At the 

end of this twelve (12) month =ace period. the existing conformity determination will lapse. 

[12/14/94; 11/23/98; 20.2.99.1 13 NMAC - Rn, 20 NMAC 2.99.1 13, 10/31/02; A, 10/15/05; A, 06/01/09] 

20.2.99.115 FRF.QUENCY OF CONFORMITY DETERMTNATIONS - TRIGGERS FOR 

TRANSPORTATION PLAN AVD TIP CONFORMITY DETERMINATIONS. Conformity of existing 

transportation plans and TIPS shall be redetermined within [-I two (2) years of the following, or 

after a twelve 112) month erace period (as described in 20.2.99.116 NMAC) the existing conformity determination 

will lapse, and no new project-level conformity deternunations inay be made until conformity of the transportation 

plan and TIP has been determined by the MPO and US DOT: 

A. the date of the department's initial submission to US EPA of each control strategy implementation 

plan or maintenance plan establishing a motor vehicle emissions budget; 

B. the effective date of US EPA approval of a controI strategy implementation plan revision or 

maintenance plan which establishes or revises a motor vehicle emissions budget if that budget has not yet been used 

in a conformity determination prior to approval; and 

C. the effective date of US EPA promulgation of an implementation plan which establishes or revises 

a motor vehicle emissions budget. 

[12/14/94; 11/23/98; 20.2.99.1 15 NMAC - Rn, 20 WAC 2.99.1 15, 10/31/02; A, 10/15/05; A, 06/01/09] 

20.2.99.122 NOTIFICATION PROCEDURF,S FOR ROUTINE ACTIVITIES. Notification of affected 

agencies (including those listed in Paragraph (1) of Subsection C of 20.2.99.1 16 MAC) of transportation plan or 

TIP [fe\.ifieftfer] amendments which merely add or delete exempt projects listed in 20.2.99.149 NMAC, shall be 

the affirmative responsibility of NMDOT and/or the MPO. Such notification shall be provided not later than thirty 

(30) days prior to the preparation of the final draft of the document or decision. This process shall include: 

A. notification of the affected agencies (including those listed in Paragraph (1) of Subsection C of 

20.2.99.11 6 NMAC) early in the process of decision on the final document; and 

B. supplying all relevant documents and information to the affected agencies (including those listed 

in Paragraph (I) of Subsection C of 20.2.99.1 16 NMAC). 

[12/14/94; 11/23/98; 20.2.99.122 NMAC - Rn, 20 NMAC 2.99.122 1013 1/02; A, 1011 5/05; A, 06/01/09] 

20.2.99.124 PUBLIC CONSULTATION PROCEDURES: 

A. Affected agencies making conformity determinations on transportation plans, programs, and 

projects shall establish a proactive public involvement process which provides opportunity for public review and 

comment by, at a minimum providing reasonable public access to technical and policy infornlation considered by 

the agency at the beginning of the public comment period, and prior to taking formal action on a conformity 

determination for all transportation plans and TIPS, and projects, consistent with the requirements of 23 CFR part 

450, including sections 450.3 16 [MI &, 450.322(c), and 450.324(c) as in effect on the date of adoption of this 

Part. Any charges imposed for public inspection and copying should be consistent with the fee schedule contained 

in 49 CFR 7.43. In addition, any such agency must specifically address in writing all public comments which allege 

that known plans for a regionally significant project which is not receiving FHWA or FTA hnding or approval have 

not been properly reflected in the emissions analysis supporting a proposed conformity finding for a transportation 

plan or TIP. Any such agency shall also provide opportunity for public involvement in conformity determinations 

for projects to the extent otherwise required by law (e.g. NEPA). 

B. The opportunity for public involvemeilt provided under this section (20.2.99.124 NMAC) shall 

include access to information, emissions data, analyses, models and modeling assunlptions used to perform a 

conformity determination, and the obligation of any such agency to consider and respond in writing to significant 

conunents. 

20.2.99 NMAC 
C. No transportation plan, TLP. or project may be found to confoml unless the determination of 

confomity has been subject to a public involvement process in accordance with this section, without regard to 

whether the US DOT has certified any process under 7-3 CFR part 450. 

[12/14/94; 11/23/98; 09/08/99; 20.2.99.124 NMAC - Rn, 20 NMAC 2.99.124 10/31/02; A, 9/1/07; A, 06/01/09] 

20.2.99.125 CONTENT OF TRANSPORTATION PLANS AND TIMEFRAMES OF CONFORMITY 

DETERMINATIONS. 

A. Transportation plans adopted after January 1, 1997. in serious, severe, or extreme ozone 

nonattainment areas and in serious carbon monoxide nonattainment areas. If the metropolitan planning area contains 

an urbanized area population greater than two hundred thousand (200,000), the transportation plan must specifically 

describe the transportation system envisioned for certain future years which shall be called horizon years. 

(1) The agency or organization developing the transportation plan, after consultation in accordance 

with 20.2.99.1 16 NMAC through 20.1.99.124 NMAC: may choose any years to be horizon years, subject to the 

following restrictions: 

(a) horizon years may be no more than ten (10) years apart. 

(b) the first horizon year may be no more than ten (1 0) years from the base year used to 

validate the transportation demand planning model. 

(c) [a the attainment year is must be a horizon vear if it is in the [-] timefranle 

of transportation plan[fi] and confonnitv determination. 

(d) the last [kwxm] year of the transportation plan's forecast period shall be [W] a 

horizon yearad 

(e) if the timeframe of the conformity determination has been shortened under Subsection D of 

this section (20.2.99.125 NMAC). the last vear of the timeframe of the conformitv determination must be a horizon 

vear. 

(2) For these horizon years: 

(a) the transportation plan shall quantify and document the demograplic and employment 

factors influencing expected transportation demand, including land use forecasts, in accordance with implementation 

plan provisions and 20.2.99.1 16 NMAC through 20.2.99.124 MAC; 

(b) the highway and transit system shall be described in tem~s of the regionally significant 

additions or modifications to the existing transportation network which the transportation plan envisions to be 

operational in the horizon years; additions and modifications to the highway network shall be sufficiently identified 

to indicate intersections with existing regionally significant facilities, and to determine their effect on route options 

between transportation analysis zones; each added or modified highway segment shall also be sufficiently identified 

in temls of its design concept and design scope to allow modeling of travel times under various traffic volunles, 

consistent with the modeling methods for area-wide transportation analysis in use by the MPO; transit facilities, 

equipment, and services envisioned for the future shall be identified in terms of design concept, design scope, and 

operating policies sufficiently to allow modeling of heir transit ridership; tl~e description of additions and 

modifications to the transportation network shall also be sufficiently specific to show tlnt there is a reasonable 

relationship between expected land use and the envisioned transportation system; and 

(c) other future transportation policies, requirements, senices, and activities, including 

intermodal activities, shall be described. 

B. Two-year grace period for transportation plan requirements in certain ozone and CO areas. The 

requirements of Subsection A of 20.2.99.125 NMAC applies to such areas or portions of such areas that have 

previously not been required to meet these requirements for any existing NAAQS two years from the following: 

(1) the effective date of EPA's reclassification of an ozone or CO nonattainment area that has greater 

than 200,000 to serious or above; 

(2) the official notice by the census bureau that determines the urbanized area population of a serious 

or above ozone or CO nonattainment area to be greater that 200,000; or 

(3) the effective date of EPA's action that classifies a newly designated ozone or CO nonattainnlent 

area that has an urbanized area population greater than 200,000 as serious or above. 

C. Transportation plans for other areas.Transportation plans for other areas must meet the 

requirements of Subsection A of 20.2.99.125 NMAC at least to the extent it has been the previous practice of the 

MPO to prepare plans which meet those requirements. Otherwiset transportation plans must describe the 

transportation system envisioned for the future specifically enough to allow determination of conforinity according 

to the criteria and procedures of 20.2.99.128 NMAC through 20.2.99.138 NMAC. 

D. Timeframe of confom~itv determination. 

20.2.99 NMAC 
(1) Unless an election is made under this subsection (Subsection D of 20.2.99.125 NMAC). the 

timefiame of the conformitv determination shall be thoueh the last vear of the transportatioll plan's forecast period. 

(2) For areas that do not have an adequate or approved CAA section 175A(b) maintenance plans. the 

MPO mav elect to shorten the timefiame of the transportation plan and TIP conformitv determination. after 

consultation with state and local air quality aeencies. solicitation of public comments. and consideration of such 

conlments. 

(a) The shortened tinlefiame of the conformitv detern~ination shall extend at least to the latest 

of the followin4 vears: 

(i) the tenth year of the transportation plan: 

(ii) the latest year for which an adequate or approved motor vehicle emissions budoet(s) 

is established in the submitted or applicable imlementation plan: or 

(iii) the year after the completion date of a regionally significant proiect if the project is 

included in the TIP or project requires approval before the subsequent conformitv determination. 

(b) The confonnitv determination must be accompanied by a reeional enussions analysis (for 

informational purposes only) for the last vear of the transportation plan and for any vear shown to exceed motor 

vehicle emissions budnets in a prior reeional emissions analysis. if such a vear extends bevond the timefiame of the 

conformitv determination. 

(3) For areas that have an adequate or approved CAA section 175A(b) maintenance plan. the MPO 

may elect to shorten the tirnefiame of the conformitv determination to extend throueh the last vear of such 

maintenance plan after consultation with state and local air quality agencies. solicitation of comments. and 

consideration of such comments. 

(4) Any election made bv an MPO under Paragraphs (2) and (3) of Subsection D of 20.2.99.125 

NMAC shall continue in effect until the MPO elects otherwise. after consultation with state and local air qualitv 

agencies. solicitation of public comments. and consideration of such comments. 

[&I& Savings. The requirements of this section (20.1.99.125 NMAC) supplement other requirements of 

applicable law or regulation governing the format or content of transportation plans. 

[12/14/94; 11/23/98; 20.2.99.125 NMAC - Rn, 20 NMAC 2.99.125 10/31/02; A: 10/1.5/05; A, 06/01/09] 

20.2.99.128 CRITERIA AND PROCEDURES FOR DETERMINING CONFORMITY OF 

TRANSPORTATION PLANS, PROGRAMS, AND PROJECTS - GENERAL. 

A. In order for each transportation plan, program, and FHWNFTA project to be found to conform 

the MPO and US DOT must demonstrate that the applicable criteria and procedures in this part are satisfied and the 

MPO and US DOT must comply with all applicable col~formity requirements of implementation plans and of court 

orders for the area which pertain specifically to confornlity. The criteria for making conformity determinations 

differ based on the action under review (transportation plans, TIPs, and FHWA/FTA projects or state projects), the 

relevant pollutant(s), and the status of the implementation plan. 

B. The following table (table 1) indicates the criteria and procedures in 20.2.99.129 NMAC tlrough 

20.2.99.138 NMAC which apply for transportation plans, TIPs, and FHWNFTA projects. Subsections C through I 

of this section (20.2.99.128 NMAC) explain when the budget, interim emission, and hot spot tests are required for 

each pollutant and NAAQS. Subsection J of this section (20.2.99.12s NMAC) addresses conformity requirements 

for areas with approved or adequate limited maintenance plans. Subsection K of this section (20.2.99.128 NMAC) 

addresses nonattainnient maintenance areas which EPA has determined have insignificant motor vehicle en~issions. 

Subsection L of this section (20.2.99.128 MAC) addresses isolated rural nonattainment and maintenance areas. 

Table 1 follows. Table 1. Conformity Criteria. 

(1) All actions at all times 

(a) 20.2.99.129 NMAC. Latest planning assumptions 

(b) 20.2.99.130 MAC. Latest enlissions model 

(c) 20.2.99.13 1 NMAC. Consultation 

(2) Transportation Plan 

(a) Subsection B of 20.2.99.132 NlvIAC. TCMs 

(b) 20.2.99.137 NMAC andlor 20.2.99.138 NMAC. E.n~issions budget and/or interim 

ernissioils 

(3) TIP 

(a) Subsection C of 20.2.99.132 WAC. TCMs 

(b) 20.2.99.137 MAC and!or 20.2.99.138 NMAC. Emissions budget and /or interim 

emissiolls 

20.2.99 NMAC 
(4) Project (From a conforming plan and TIP) 

(a) 20.2.99.13.3 NMAC. Currently conforming plan and TIP 

(b) 20.2.99.134 NMAC. Project from a conforming plan and TIP 

(c) 20.1.99.13.5 NMAC. CO, PM10, and PM2.5 hot spots 

(d) 20.2.99.136 NMAC. PM 10 and PM2.5 control measures 

(5) Prqject (Not &om a conforming plan and TIF) 

(a) Subsection D of 20.2.99.132 NMAC. TCMs 

(b) 20.2.99.133 NMAC. Currently conforming plan and TIP 

(c) 20.2.99.135 NMAC. CO, PMlO, and PM2.5 hot spots 

(d) 20.2.99.136 NMAC. PMlO and PM2.5 control measures 

(e) 20.2.99.137 NMAC and/or 20.2.99.1.23 NMAC. Emissions budget and/or interim 

emissions. 

C. 1-hour ozone lionattainment and maintenance areas. This subsection (Subsection C of section 

20.2.99.128 NMAC) applies when an area is nonattainment or maintenance for the 1-hour ozone NAAQS (i.e., until 

the effective date of any revocation of the 1-hour ozone NAAQS for an area). In addition to the criteria listed in 

table 1 in Subsection B of thls section (20.2.99.128 NMAC) that are required to be satisfied at all times, in such 

ozone nonattainment and maintenance areas conformity determinations must include a demonstration that the budget 

and/or interin] emission tests are satisfied as described in the following. 

(1) In all 1 -hour ozone nonattainment and maintenance areas the budget test must be satisfied as 

required by 20.2.99.137 NMAC for conformity deteminations made on or after: 

(a) the effective data EPA's finding that a motor vehicle emissions budget in a submitted 

control strategy implementation plan revision or maintenance plan for the 1-hour ozone NAAQS is adequate for 

transportation conformity purposes; 

(b) the publication data of EPA's approval of such a budget in the federal register; or 

(c) the effective state of EPA's approval of such a budget in the federal register? if such 

approval is completed through direct fmal rulemaking. 

(2) In ozone nonattainment areas that are required to submit a control strategy implementation plan 

revision for the 1-hour ozone NAAQS (usually moderate and above areas), the interim emissions tests must be 

satisfied as required by 20.2.99.138 NMAC for confomuty determinations made when there is no approved motor 

vehicle emissions budget form an applicable implementation plan for the 1-hour ozone NAAQS and no adequate 

motor vehicle emissions budget form a submitted control strategy implementation plan revision or maintenance plan 

for the 1-hour ozone NAAQS. 

(3) An ozone nonattainment area must satisfy the interim emissions test for NOx, as required by 

20.2.99.138 NMAC, if the implementation plan or plan submission that is applicable for the purposes of conformity 

determinations is a fifteen percent (1 5%) plan or phase I attainment demonstratioil that does not include a motor 

vehicle emissions budget for NOx. The implementation plan for the 1-hour ozone NAAQS will be considered to 

establish a motor vehicle emissions budget for NOx if the implementation plan or plan submission contains an 

explicit NOx motor vehicle emissions budget that is intended to act as a ceiling on future NOx emissions, and the 

NOx motor vehicle en~issions budaet - is a net reduction &om NOx emissions levels in 1990. 

(4) Ozone nonattainrnent areas that have not submitted a maintenance plan and that are not required 

to subnlit a control strategy implementation plan revision for the 1-hour NAAQS (usually marginal and below areas) 

must satisfy one of the following requirements: 

(a) the interim emissions tests required by 20.2.99.138 NMAC; or 

(b) the department shall submit to US EPA an implementation plan revision for the 1-hour 

ozone NAAQS that contains motor vehicle enlissions budget(s) and a reasonable further progress or an attainment 

demonstration, and the budget test required by 20.2.99.137 NMAC must be satisfied using the adequate or approved 

motor vehicle emissions budget(s) (as described in Paragraph (1) of Subsection C of 20.2.99.128 M4C). 

(5) Notwithstanding Paragraphs (1) and (2) of Subsection C of 20.2.99.128 NMAC, moderate and 

above ozone nonattainment areas with three years of clean data for the 1 -hour ozone NAAQS that have not 

submitted a maintenance plan and that US EPA has determined are not sub.ject to the Clean Air Act reasonable 

further progress and attainment demonstration requirements for the 1-hour NAAQS must satisfy one of the 

following requirements: 

(a) the interim emissions tests as required by 20.2.99.138 NMAC; 

(b) the budget test as required by 20.2.99.137 NMAC, using the adequate or approved motor 

vehicle emissions budgets in the submitted or applicable control strategy implementation plan for the I-hour ozoile 

NAAQS (subject to the timing requirements of Paragraph (1) of Subsection C of 20.2.99.128 NMAC); or 

20.2.99 NMAC 9 
(c) the budget test as required by 20.7.99.137 NMAC, using the motor vellicle emissions of 

ozone precursors in the most recent year of clean data as inotor vehicle emissions budgets. if such budgets are 

established by the US EPA rulelnaking that determines that the area has clean data. 

D. 8-hour ozone NAAQS nonattainment and maintenance areas without motor vehicle enlissions 

budgets for the 1 -hour ozone NAAQS for any portion of the 8-hour nonattainmei~t area. This subsection 

(Subsection D of section 20.7.99.128 WAC) applies to areas that were never designated nonattainment for the 1- 

hour ozone NAAQS but that never submitted a control strategy SIP or maintenance plan with approved or adequate 

motor vehicle el~lissions budgets. This subsection (Subsection D of section 20.1.99.128 NMAC) applies one (1) 

year after the effective date of EPA's nonattainment designation for the 8-hour ozone NAAQS for an area, according 

to Subsection D of 20.7.99.109 NMAC. 111 the addition to the criteria listed in table 1 in Subsection B of 

20.2.99.128 NMAC that are required to be satisfied at all times, in such 8-hour ozone nonattainnlent and 

maintenance areas conformity determinations much include a demonstration that the budget andlor interim 

emissions tests are satisfied as described in the following. 

(1) In such 8-hour ozone nonattainment and maintenance areas the budget test much be satisfied as 

required by section 20.2.99.137 NMAC for conformity deternlinations made on or after; 

(a) the effective date of EPA's finding that a motor vehicle emissions budget in a submitted 

control strategy implementation plan revision or maintenance plan for the 8-hour ozone NAAQS is adequate for 

transportation conformity purposes; 

(b) the publication date of EPA's approval of such a budget in the federal register; or 

(c) the effective date of EPA's approval of such a budget in the federal register, if such 

approval is con~pleted through direct fmal rulemaking. 

(2) In ozone nonattaimlent areas that are required to submit a control strategy implementation plan 

revision for the 8-hour ozone NAAQS (usually moderate and above and certain Clean Air Act, part D subpart 1 

areas), the interim emissions tests must by satisfied as required by section 20.2.99.138 NMAC for confornlity 

determinations made when there is no approved motor vehicle emissions budget from an applicable implementation 

plan for 8-hour ozone NAAQS and no adequate motor vehicle emissions budget from a submitted control strategy 

implementation plan revision or maintenance plan for the 8-hour NAAQS. 

(3) Such an 8-hour ozone nonattainment area must satisfy the interim emissions test for NOx, as 

required by section 20.1.99.138 NMAC, if the implementation plan or plan subnlission that is applicable for the 

purposes of conformity determination is a fifteei~ percent (15%) plan or other control strategy SP that addresses 

reasonable further progress that does not include a motor vehicle emissions budget for NOx. The implementation 

plan for the 8-hour ozone NAAQS will be considered to establish a motor vehicle emissions budget for NOx if the 

inlplementation plan or plan submission contains an explicit NOx motor vehicle emissions budget that is intended to 

act as a ceiling on future NOx enlissions, and the NOx motor vehicle emissions budget is a net reduction from NOx 

emissions levels in 2002. 

(4) Ozone nonattainment areas that have not submitted a maintenance plan and that are not required 

to submit a control strategy implenlentation plan revision for the 8-hour ozone NAAQS (usually marginal and 

certain Clean Air Act, part D, subpart 1 areas) must satisfy one of the following requirements: 

(a) the interim emissions tests required by section 20.2.99.138 NMAC; or 

(b) the department shall submit to EPA an implementation plan revision for the 8-hour ozone 

NAAQS that contains nlotor vehicle emissions budget(s) and a reasonable further progress or attainment 

demonstration, and tile budget test required by section 20.2.99.137 NMAC must be satisfied using the adequate or 

approved motor vehicle emissions budget(s) (as described in Paragraph (I) of Subsection D of 20.2.99.128 NMAC). 

(5) Notwithstanding Paragraphs (1) and (2) of Subsection D of 20.2.99.128 NMAC, ozone 

nonattainment areas with three (3) years of clean data for the 8-hour ozone NAAQS that have not submitted 

maintenance plan and that EPA has determined are not subject to the Clean Air Act reasonable further progress and 

attainment demonstration requirements for the 9-hour ozone NAAQS must satisfy one of the following 

requirements: 

(a) the interim emissions tests as required by section 20.2.99.138 NMAC; 

(b) the budget test as required by section 20.2.99.137 NMAC, using the adequate or approved 

motor vehicle emissions budgets in the submitted or applicable control strategy implementation plan for the 8-hour 

ozone NAAQS (subject to the timing requirements of Paragraph (1) of Subsection D of 20.2.99.128 NMAC; or 

(c) the budget test as required by section 20.2.137 NMAC, using the motor vehicle emissions 

of ozone precursors in the most recent year of clean data as motor vehicle emissions budgets, if such budgets are 

established by the EPA rulen~alcii~g that determines that the area has clean data for the 8-hour ozone NAAQS. 
E. 8-hour ozone NAAQS nonattainment and maintenance areas with motor vehicle emissions 

budgets for the I -hour ozone NAAQS that cover all or a portion of the 8-hour nonattainment area. This provision 

applies one (1) year after the effective date of EPA's nonattainment designation for the &hour ozone NAAQS for an 

area, according to Subsection D of section 3.20.99.109 NMAC. In addition to the criteria listing in table 1 in 

Subsection B of this section (2.20.2.128 NMAC) that are required to be satisfied at all times, in such 8-hour ozone 

nonattainment and maintenance areas conformity determinations must include a demonstration that the budget 

and/or interim emissions tests are satisfied as described in the following. 

(1) In such 8-hour ozone nonattainnlent and maintenance areas the budget test must be satisfied as 

required by section 20.2.99.137 NMAC for confomlity determinations made on or after: 

(a) the effective date of EPA's finding that a motor vehicle emissions budget in a submitted 

control strategy implementation plan revision or n~alntenance plan for the 8-hour ozone NAAQS is adequate for 

transportation confomuty purposes; 

(b) the publication date of EPA's approval of such a budget in the federal register; or 

(c) the effective date of EPA's approval of such a budget in the federal register, is such 

approval is completed though direct fmal rulemaking. 

(2) Prior to Paragraph (1) [PI of Subsection E of 20.7.99.128 NMAC . . applying. the following test(s) must be satisfied[fi 

-3- - . - 

(a) If the 8-hour ozone nonattainnlent area covers the same geographic area as the 1-hour 

ozone nonattainment or maintenance area(s) , the budget test as required by section 20.2.99.137 NMAC using the 

approved or adequate motor vehicle emissions budgets in the I -hour ozone applicable implementation plan or - - 

implementation plan submission. 

(b) If the 8-hour ozone nonattainment area covers a smaller geographic area with the 1 -hour 

ozone nonattainment or maintenance area(s), the budget test as required by section 70.2.99.137 NMAC for either the 

8-hour nonattainment area using corresponding portion(s) of the approved or adequate motor vehicle emissions 

budgets in the 1-hour ozone applicable implementation plan or implementation plan submission where such 

portion(s) can reasonably be identified through the interagency consultation process required by section 20.2.99.1 16 

~AC ; or the 1-hour nonattainment area using the approved or adequate motor vehicle emissions budgets in the 1- 

hour ozone applicable implementation plan or impleinentation plan submission. If additional emission reductions 

are necessary to meet the budget test for the &hour ozone NAAQS in such cases, these emissions reductions must 

come &om within the 8-hour nonattainment area. 

(c) If the 8-hour ozone nonattainment area covers a larger geographic area and encompasses 

the entire 1-hour ozone nonattainnlent or maintenance area(s) the budget test as required by section 20.2.99.137 

WAC for the portion of the 8-hour ozone nonattaiilment area covered by the approved or adequate motor vehcle 

emissions budgets in the 1 -hour ozone applicable implementation plan or inlplen~entation plan submission; and the 

interim emissions tests as required by section 20.2.99.138 NMAC for either: the portion of the 8-hour ozone 

nonattainment area not covered by the approved or adequate budgets in the I-hour ozone implementation plan, the 

entire 8-hour ozone nonattainment area, or the entire portion of the 8-hour ozone nonattainrnent area within an 

individual state, in the case where separate I-hour SIP budgets are established for each state of a multi-state I-hour 

nonattainment area partially covers a 1 -hour ozone nonattainrneilt or maintenance area(s). 

(d) If the 8-hour ozone nonattainment area partially covers a 1-hour ozone nonattainment of 

maintenance area(s) the budget test as required by section 20.2.99.137 NMAC for the portion of the 8-hour ozone 

nonattainment area covered by the corresponding portion of the approved or adequate motor vehicle emissions 

budgets in the I -hour ozone applicable inlplen~entation plan or implementation plan submission where they can be 

reasonably identified through the interazency consultation process required by section 20.2.99.1 16 NMAC ; and the 

interim emissions tests as required by section 20.2.99.138 NMAC, when applicable, for either: the portion of the 8- 

hour ozone nonattainment area not covered by the approved or adequate budgets in the 1-hour ozone 

implementation plan, the entire 8-hour ozone nonattainment area, or the entire portion of the 8-hour ozone 

nonattainment area within an individual state, in the case where separate I -hour SIP budgets are established for each 

state in a multi-state 

[

1 -hour nonattainment or maintenance area. 

C LI1 c 

20.2.99 NMAC 
(3) Such an 8-hour ozone nonattainment area must satisfy the interim enlissions test for NOx, as 

required by section 20.2.99.138 NMAC, if the only implementation plan or plan submission that is applicable for the 

purposes of conformity detemlinations is a fifteen percent (15%) plan or other control strategy SIP that addresses 

reasonable further progress that does not include a motor vehicle emissions budget for NOx. The implementation 

plan for the 8-hour ozone NAAQS will be considered to establish a motor vehicle emissions budget for NOx if the 

implementation plan or plan submission contains an explicit NOx motor vehicle emissions budget that is intended to 

act as a ceiling on future NOx emissions, and the NOx motor vehicle emissions budget is a net reduction from NOx 

emissions levels in 2002. Prior to an adequate or approved NOx inotor vehicle emissions budget in the 

implementation plan subnlission for the &-hour ozone NAAQS, the implementation plan for the l-hour ozone 

NAAQS will be considered to establish a motor vehicle emissions budget for NOx if the implementation plan 

contains on explicit NOx motor vehicle emissions budget that is intended to act as a ceiling on future NOx 

emissions, and the NOx motor vellicle emission budget is a net reduction fiom NOx emissions levels in 1990. 

(4) Notwithstanding Paragraphs (1) and (2) of Subsection E of this section (20.2.99.128 MAC), 

ozone nonattainment areas with three years of clean data for the 8-hour ozone NAAQS that have not submitted a 

maintenance plan and that EPA has detennined are not subject to the Clean Air Act reasonable further progress and 

attainment demonstration requirement for the 8-hour ozone NAAQS must satisfy one of the following requirements: 

(a) the budget test andlor interim emissions tests are required by sections 20.2.99.137 NMAC 

and 20.2.99.138 NMAC and as described in Paragraph (2) of Subsection E of this section (20.2.99.128 NMAC); 

(b) the budget test as required by section 20.2.99.137 NMAC, using the adequate or approved 

motor vehicle emission budgets in the submitted or applicable control strategy implementation plan for the 8-hour 

ozone NAAQS (subject to the timing requirements of Paragraph (1) of Subsection E of 20.2.99.128 NMAC; or 

(c) the budget test as required by section 20.2.99.137 NMAC, using the motor vehlcle 

emissions of ozone precursors in the most recent year of clean data as motor vehicle emissions budgets, if such 

budgets are established by the EPA rulemaling that determines that the area has clean data for the 8-hour ozone 

NAAQS. 

F. CO nonattainment and maintenance areas. hi addition to the criteria listed in table 1 in Subsection 

B of 20.2.99.128 NMAC that are required to be satisfied at all times, in CO nonattainment and maintenance areas 

conformity determinations must include a den~onstration that the hot spot, budget andlor interim emissions tests are 

satisfied as described in the following. 

(1) FHWA/FTA pro~ects in CO nonattauunent or maintenance areas must satisfy the hot spot test 

required by Subsection A of 20.2.99.135 NMAC at all times. Until a CO attainment demonstration or maintenance 

plan is approved by US EPA, FHWPJFTA projects must also satisfy the hot spot test required by Subsection B of 

30.2.99.135 NMAC. 

(2) In CO nonattainment and maintenance areas the budget test must be satisfied as required by 

20.2.99.137 NMAC for conformity determinations made: 

(a) the effective date of EPA's finding that a motor vehicle emissions budget in a submitted 

control strategy implementation plan revision or maintenance plan is adequate for transportation conformity 

purposes; 

(b) the publication date of EPA's approval of such a budget in the federal register; or 

(c) the effective date of EPA's approval of such a budget in the federal register, if such 

approval is completed through direct final rulemaking. 

(3) Except as provided in Paragraph (4) of Subsection F of 20.3.99.128 NMAC, in CO nonattainment 

areas the interim emissions tests must be satisfied as required by 20.2.99.138 NMAC for conformity determinations 

made when there is no approved motor vehicle emissions budget from an applicable implementation plan and no 

adequate motor vehicle emissions budget from a submitted control strategy implenlentation plan revision or 

maintenance plan. 

(4) CO nonattaimlent areas that have not submitted a maintenance plan and that are not required to 

submit an attainment demonstration (e.g., moderate CO areas with a design value of 12.7 ppm or less or not 

classified CO areas) must satisfy one of the follon~ing requirements: 

(a) the interim enlissions tests required by 20.2.99.138 NMAC; or 

(b) the department shall submit to TJS EPA an implementation plan revision that contains 

motor vehicle enlissions budget(s) and an attainment demonstration, and the budget test required by 20.2.99.137 

NMAC must be satisfied using the adequate or approved motor vehicle emissions budget(s) (as described in 

Paragraph (2) of Subsection F of 20.2.99.128 MAC). 

20.2.99 NMAC 
G. PMlO nonattainn~ent and maintenance areas. In addition to the criteria listed in table 1 111 

Subsection B of 20.2.99.128 NMAC that are required to be satisfied at all times, in PMlO nonattaimlent and 

maintenance areas conformity deternlinations must include a demonstration that the hot spot, budget andor interim 

emissions tests are satisfied as described in the following. 

(1) FHWAlFTA pro~ects in PMlO nonattainment or maintenance areas must satisfy the hot spot test 

required by 70.2.99.135 MAC. 

(2) In PMlO nonattainment and maintenance areas the budget test must be satisfied as required by 

20.2.99.137 NMAC for conformity deternlinations made: 

(a) the effective date of EPA's finding that a motor vehicle enlissions budget in a submitted 

control strategy implementation plan revision or maintenance plan is adequate for transportation confonnity 

purposes; 

(b) the publication date of EPA's approval of such a budget in the federal register; or 

(c) the effective data of EPA's approval of such a budget in the federal register, if such 

approval is completed through direct final rulemaking. 

(3) In PMlO nonattaimlent areas the interim emissions tests must be satisfied as required by 

20.2.99.138 NMAC for conformity deternunations made: 

(a) if there is no approved motor velucle emissions budget horn an applicable implementation 

plan and no adequate motor vehicle emissions budget from a submitted control strategy implementation plan 

revision or maintenance plan; or 

(b) if the submitted implementation plan revision is a demonstration of impracticability under 

CAA Section 189(a)(l)(B)(ii) and does not demonstrate attainment. 

H. NO2 nonattainment and maintenance areas. In addition to the criteria listed in table 1 in 

Subsection B of 20.2.99.128 NMAC that are required to be satisfied at all times, in NO2 nonattainment and 

maintenance areas conformity determinations must include a demonstration that the budget and/or interim emissions 

tests are satisfied as described in the following. 

(1) In NO2 nonattainment and maintenance areas the budget test must be satisfied as required by 

20.2.99.1 37 NMAC for conformity determinations made: 

(a) the effective date of EPA's finding that a motor velucle emissions budget in a submitted 

control strategy implen~entation plan revision or maintenance plan is adequate for transportation conformity 

purposes; 

(b) the publication date of EPA's approval of such a budget in the federal register; or 

(c) the effective data of EPA's approval of such a budget in the federal register, if such 

approval is completed through direct fmal rulemaking. 

(2) In NO7 nonattainrnent areas the interim emissions tests must be satisfied as required by 

20.2.99.138 NMAC for confornlity determinations made when there is no approved motor vehicle emissions budget 

from an applicable inlplementation plan and no adequate motor vehicle emissions budget from a submitted control 

strategy implementation plan revision or maintenance plan. 

I. PM2.5 nonattainment and maintenance areas. In addition to the criteria listed in table 1 in 

Subsection B of section 20.2.99.128 NMAC that are required to be satisfied at all times, in PM2.5 nonattaiument 

and maintenance areas conformity determinations must include a demonstration that the budget and/or interim 

enfissions tests are satisfied as described in the following: 

(1) FHWAlFTA projects in PM2.5 nonattainment or maintenance areas must satisfy the appropriate 

hot-spot test required by Subsection A of section 20.2.99.13.5 NMAC; 

(2) in PM2.5 nonattainment and maintenance areas the budget in a submitted control strategy 

implementation plan revision or maintenance plan is adequate for transportation conformity purposes; 

(a) the effective date of EPA's finding that a motor vellicle emissions budget in a submitted 

control strategy implementation plan revision or maintenance plan is adequate for transportation confornlity 

purposes; 

(b) the publication date of EPA's approval of such a budget in the federal register; or 

(c) the effective data of EPA's approval of such a budget in the federal register, if such 

approval is completed through direct final rulemaking; 

(3) in PM2.5 nonattaimi~ent areas the interim emissions tests must be satisfied as required by section 

20.2.99.138 NMAC for conformity determinations made if there is no approved motor vehicle emissions budget 

from an applicable implementation plan and no adequate motor vehicle emissions budget froin a submitted control 

strategy iniplementation plan revision or maintenance plan. 

20.2.99 NMAC 
J. Areas with limited nlaintenance plans. Notwithstanding the other paragraphs of this section, an 

area is not required to satisfy the regional emissions analysis for sections 20.2.99.137 NMAC and/or 20.7.99.135 

NMAC for a given pollutant and NAAQS; if the area has an adequate or approved limited maintenance plan would 

have to demonstrate that it would be unreasonable to expect that such an area would experience enough motor 

vehicle emissions growth for a NAAQS violatio~ls to occur. A conformity determination that meets other applicable 

criteria in table 1 or Subsection B of this section (20.2.99.128 NMAC) is still required. including the hot-spot 

requirements for projects in CO, PM 10, and PM2.5 areas. 

K. Areas with insignificant motor vehicle emissions. Notwithstanding the other subsections in this 

section (20.2.99.128 NMAC). and area is not required to satisfy a regional en~issions analysis for sections 

20.2.99.137 NMAC and/or 20.2.99.138 NMAC for a given pollutantiprecursor and NAAQS, if EPA finds tlrough 

Lhe adequacy 01. approval process that a SIP demonstrates that regional motor vehicle emissions are an insignificant 

contributor to the air quality problem for that pollutantiprecursor and NAAQS. The SIP would have to demonstrate 

that it would be unreasonable to expect that such an area would experience enough motor vehicle emissions growth 

in that pollutantiprecursor for a NAAQS violatio~l Lo occur. Such a finding would be based on a number of factors, 

including the percentage of motor vehicle emissions in the context of the total SIP inventory, the current state of air 

quality as determined by monitoring data for that NAAQS. the absence of SIP motor vehicle control measures, and 

historical trends and future prosections of the growth of motor vehicle emissions. A conformity determination that 

meets other applicable criteria in table 1 or Subsection B of this section (20.2.99.128 NMAC) is still required, 

including regional emissions analyses for sections 20.2.99.137 NMAC andlor 20.2.99.138 NMAC for other 

pollutantslprecursors and NAAQS that apply. Hot-spot requirements for projects in CO, PM10, and PK.5 areas in 

section 20.2.99.135 MAC must also be satisfied, unless EPA determined that the SIP also demonstrates that 

projects will not create new localized violations andlor increase the seventy or number of existing violations of such 

NAAQS. If EPA subsequently finds that inotor vehicle emissions of a given pollutant/precursor are significant, this 

subsection would no longer apply for future conformity determinations for that pollutant~precursor and NAAQS. 

L. Isolated rural nonattainnlent and maintenance areas. This subsection applies to any nonattainment 

or maintenance area (or portion thereof) which does not have a metropolitan transportation plan or TIP and whose 

projects are not part of the emissions analysis of any MPO's metropolitan transportation plan or TIP. This 

subsection does not apply to "donut" areas which are outside the metropolitan planning boundary and inside the 

nonattainmentimaintenance area boundary. 

(1) FHWMTA projects in all isolated rural nonattainment and maintenance areas must satisfi the 

requirements of 20.2.99.129 NMAC through 20.2.99.131 MAC, Subsectio~l D of 20.2.99.132 NMAC, 20.2.99.135 

NMAC, and 20.2.99.136 NMAC. Until US EPA approves the control strategy implementation plan or maintenance 

plan for a rural CO nonattainment or maintenance area, FHWMTA projects must also satisfy the requirements of 

Subsection 3 of 20.2.99.135 NMAC ("Localized CO, PM10, and PM2.5 violations (hot spots)"). 

(2) Isolated rural nonattainment and maintenance areas are subject to the budget andor interim 

emissions tests as described in Subsections C tluough K of 20.2.99.128 NMAC, with the following modifications: 

(a) when he requirements of Subsection D of 20.2.99.125 NMAC. 20.2.99.135 NMAC, 

20.2.99.137 NMAC and 20.3.99.138 NMAC apply to isolated rural nonattainment and maintenance areas, 

references to "transportation plan" or "TIP" should be taken to mean those projects in the statewide transportation 

plan or statewide TIP which are in the rural nonattainment or maintenance area; when the requirements of 

Subsection D of 20.2.99.125 NMAC apply to isolated rural nonattainment and maintenance areas. references to 

"MPO" should be taken to mean NMDOT: 

(b) in isolated rural nonattainment and maintenance areas that are subject to 20.2.99.137 

NMAC, FHWAIFTA projects must be consistent wit11 motor velicle emissions budget(s) for the years in the 

timeframe of he attainment demonstration or maintenance plan; for years after the attainment year (if a maintenance 

plan has not been submitted) or after tlie last year of the maintenance plan, FHWA/FTA projects nus st satisfy one of 

the following requirements: 

(i) 20.2.99.137 MAC; 

(ii) 20.2.99.138 NMAC (including regional emissions analysis for NOx in all ozone 

nonattaimnent and nlaintenance areas, notwithstanding Paragraph (2) of Subsection F of 20.2.99.138 NMAC; or 

(iii) as demonstrated by the air quality dispersion model or other air quality modeling 

technique used in the attainment demonstration or maintenance plan, the FHWAIFTA project, in combination wit11 

all other regionally significant projects expected in the area in the timeftame of the statewide transportation plan, 

must not cause or contribute to any new violation of any standard in any areas; increase the frequency or severity of 

any existing violation of any standard in any area; or delay timely attainment of any standard or any required interim 

emission reductions or other milestones in ally area; control measures assumed in the analysis must be enforceable; 

20.2.99 NMAC 14 
(c) the choice of requirements in Subparagraph (b) of Paragraph (2) of Subsection G of 

20.2.99.128 NMAC and the methodology used to meet the requirements of item (iii) of Subparagraph (b) of 

Paragraph (2) of Subsection G of 20.2.99.128 NMAC must be determined through the interagency consultation 

process required in Paragraph (6) of Subsection B of 20.2.99.1 17 NMAC and Paragraph (5) of Subsection C of 

20.2.99.1 17 NMAC tluough which the relevant recipients of title 23 U.S.C. or federal transit laws funds, NMDOT, 

the department, or the local air quality agency should reach consensus about the option and niethodology selected; 

US EPA and US DOT must be consulted through this process as well: in the event of unresolved disputes, conflicts 

may be escalated to the governor consistent with the procedure in 30.2.99.173 NMAC: which applies to department 

comments on a conformity determination. 

[12/14/94; 11/23/98; 20.2.99.178 NMAC - Rn, 20 NMAC 2.99.128 1013 1/02; A; 10/15/05; A, 9/1/07; A. 06/01/09] 

20.2.99.133 CRITERIA AND PROCEDURES - CURRENTLY CONFORMING TRANSPORTATION 

PLAN AND TIP: There must be a currently conforming transportation plan and currently conforming TIP at the 

time of project approval, or a proiect must meet the requirements in Subsection B of 20.2.99.1 1 1 NMAC durino the 

twelve (12) month lapse orace period. Only one conforming transportation plan or TIP may exist in an area at any 

time; conformity determinations of a previous transportation plan or TIP expire once the conformity determination 

for the current plan or TIP is made by US DOT. The conformity determination on a transportation plan or TIP will 

also lapse if conformity is not determined according to the frequency requirements of 20.2.99.1 11 NMAC through 

20.2.99.1 15 NMAC. This criterion is not required to be satisfied at the time of proiect approval for a TCM 

specifically included in the SIP, provided that all other relevant criteria of this Part are satisfied. 

[12/14/94; 11/23/98; 20.2.99.133 NMAC - Rn, 20 NMAC 2.99.133 10/31/02; A, 06/01/09] 

20.2.99.134 CRITERIA AND PROCEDWS - PROJECTS FROM A TRANSPORTATION PLAN 

AND TIP: 

A. The prolect must come from a conforming transportation plan and TIP. If this criterion is not 

satisfied, the project must satisfy all criteria in table 1 of Subsection B of 20.7.99.128 NMAC for a project not from 

a conforming transportation plan and TIP. A project is considered to be from a conforming transportation plan if it 

meets the requirements of Subsection B of 20.2.99.134 NMAC and from a conforming TIP if it meets the 

requirements of Subsection C of 20.2.99.134 NMAC. Special provisions for TCMs in an applicable implenlentation 

plan are provided in Subsection D of 20.1.99.134 NMAC. 

B. A project is considered to be from a conforming transportation plan if one of the following 

conditions apply: 

(1) for projects which are required to be identified in the trailsportation plan in order to satisfy 

20.2.99.125 NMAC, the project is specifically included in the conforming transportation plan and the project's 

design concept and scope have not changed significantly from those which were described in the transportation plan, 

or in a manner which would si-enificantly impact use of the facility; or 

(2) for projects which are not required to be specifically identified in the transportation plan, the 

project is identified in the conforming transportation plan, or is consistent with the policies and purpose of the 

transportation plan and will not interfere with other projects specifically included in the transportation plan. 

C. A project is considered to be &om a conforming TIP if the following conditions are met: 

(1) the project is included in the conforming TIP and the design concept and scope of the project 

were adequate at the time of the TIP conformity determination to determine its contribution to the TIP'S regional 

emissions, and the project design concept and scope have not changed significantly from those which were 

described in the TIP; and 

(2) if the TIP describes a project design concept and scope which includes project-level emissions 

mitigation or control measures, written commitments to implement such measures must be obtained froin the project 

sponsor andlor operator as required by Subsection A of 20.2.99.148 NMAC in order for the project to be considered 

to be fron~ aconforming program; any change in these mitigation or control measures that would significantly 

reduce their effectiveness constitutes a change in the design concept and scope of the project. 

D. TCMs: This criterion is not required to be satisfied for TCMs specifically included in an 

applicable implementation plan. 

E. Notwithstandinc the reauirements of Subsections A. B. and C of tlus section (70.2.99.134 

NMAC). a proiect must meet the requirements of Subsection B of 20.2.99.1 11 NMAC durino, the twelve (12) month 

lapse qrace period. 

[12/14/94; 11/23/98; 20.2.99.134 NMAC - Rn, 20 NMAC 2.99.131 10131/02; A, 06/01/09] 

20.2.99 NMAC 
20.2.99.135 CRITERIA AND PROCEDURES - LOCALIZED CO, PMIO, AND PM2.5 VIOLATIONS 

(HOT SPOTS). 

A. This [pmgiqk] subsection (Subsection A of 20.2.99.135 NMAC) applies at all times. The 

FHWAFTA project must not cause or contribute to any neiv localized CO, PMI 0, and/or PM2.5 violations or 

increase the .frequency or severity of any existing CO, PM10, andlor PM2.5 violations in CO, PMlO, and PM2.5 

nonattainment and maintenance areas. l'his criterion is satisfied without a hotspot analysis in PMlO and PM2.5 

nonattainrnent and maintenance areas for FHWAIFTA projects that are not identified in Paragraph (1) of Subsection 

B of 20.2.99.148 NMAC. This criterion is satisfied for all other FHWAFTA projects in CO, PM10, and PM2.5 

nonattainment and maintenance areas if it is demonstrated that during the time kame of the transportation plan [fer . . rp";..--'] no new local violations will be created and the severity or number of existing 

violations will not be increased as a result of the project. The demonstration shall be performed according to the 

consultation requirements of Subsection A of 20.2.99.120 NMAC and the methodology requirements of 20.2.99.148 

NMAC. 

B. This -1 §ion (Subsection B of 20.2.99.135 NMAC) applies for CO nonattainnlent 

areas as described in Paragraph (1) of Subsection F of 20.2.99.128 NMAC. Each FHWA/FTA project nust 

eliminate or reduce the severity and number of localized CO violations in the area substantially affected by the 

project (in CO nonattainment areas). This criterion is satisfied with respect to existing localized CO violations if it 

is demonstrated that during the time kame of the transportation plan (or regional emissions analysis) existing 

localized CO violations will be eliminated or reduced in severity and number as a result of the project. The 

demonstration must be performed according to the consultation requirements of Subsection A of 20.2.99.120 

NMAC and the methodology requirenlemlts of 7-0.1.99.146 NMAC. 

[12/14/94; 11/23/98; 20.7.99.135 NMAC - Rn, 20 NMAC 2.99.135 10/31/02; A, 10/15/05; A, 9/1/07; A, 06/01/09] 

20.2.99.137 CRITElUA AND PROCEDURES - MOTOR VEHICLE EMISSIONS BUDGET. 

A. The transportation plan, TIP, and project not kom a conforming transportation plan and TIP must 

be consistent with the motor vehicle emissions budget(s) in the applicable control strategy implementation plan (or 

implementation plan submission). This criterion applies as described in Subsections C through L of 20.7.99.128 

NMAC. This criterion is satisfied if it is demonstrated that en~issions of the pollutants or pollutant precursors 

described in Subsection C of 20.2.99.137 NMAC are less than or equal to the motor vehicle emissions budget(s) 

established in the applicable implementation plan or implementation plan submission. 

B. Consistency with the inotor vehicle emissions budget(s) must be demonstrated for each year for 

which the appIicable (and/or submitted) implementation plan specifically establishes motor vehicle emissions 

budget(s), for the attainment year (if it is within the time kame of the transportation plan and conformity 

determination), for the last year of the [p timehme of the confomlitv 

determination (as described under Subsection D of 20.2.99.175 NMAC), and for any intermediate years within the 

timeframe of the conformitv determination as necessary so that the years for which consistency is demonstrated are 

no more than ten years apart, as follows. 

(1) Until a maintenance plan is submitted: 

(a) emissions in each year (such as milestoile years and the attainment year) for which the 

control strategy implementation plan revision establishes motor vehicle emissions budget(s) must be less than or 

equal to that year's motor vehicle emissions budget(s); and 

(b) emissions in years for which no motor vehicle emissions budget(s) are specifically 

established must be less than or equal to the motor vehicle emissions budget(s) established for the most recent prior 

year; for example, emissions in years after the attainment year for which the implementation plan does not establish 

a budget must be less than or equal to the motor vehicle emissions budget(s) for the attainment year. 

(2) When a maintenance plan has been submitted: 

(a) emissions must be less than or equal to the motor vehicle emissions budget(s) established 

for the last year of the maintenance plan, and for any other years for which the maintenance plan establishes motor 

vehicle emissions budgets; if the maintenance plan does not establish motor vehicle en~issions budgets for any years 

other than the last year of the maintenance plan, the demonstration of consistency with the motor vehicle e~nissions 

budget(s) must be accompanied by a qualitative finding that there are no factors which would cause or contribute to 

a new violation or exacerbate an existing violation in the years before the last year of the mailltenance plan; the 

interagency consultation process required by 20.2.99.1 16 NMAC through 20.2.99.124 NMAC shall determine what 

must be considered in order to make such a finding; 

(6) for years after the last year of the maintenance plan, emissions must be less than or equal to 

the maintenance plan's motor vehicle emissions budget(s) for the last year of the maintenance plan; 

20.2.99 NMAC 
(c) if an approved and/or submitted control strategy implementation plan has established motor . - 

vehicle emissions budgets for years in the timeframe of the transportation plan, emissions in these years must be less 

than or equal to the control strategy implementation plan's motor vehicle emissions budgetis) for these years: and 

(d) for any analysis years before the last year of the maintenance plan, emissions must be less 

than or equal to the motor vehicle en~issions budget(s) established for the most recent prior year. 

C. Consistency with the motor vehicle emissions budget(s) must be demonstrated for each pollutant 

or pollutant precursor in Subsection B of 20.1.99.109 NMAC (or 10.7.99.101 NMAC) for which the area is in 

nobattainrneit or maintenance and for which the applicable implementation plan (or implementation plan 

submission) establishes a motor vehicle emissions budget. 

D. Consistency with the motor vehicle emissions budget(s) must be demonstrated by including 

emissions kom the entire transportation system, including all regionally significant prolects contained in the 

transportation plan and all other regionally significant highway and transit projects expected in the nonattai~lent or 

maintenance area in the timeframe of the transportation plan. 

(1) Consistency with the motor vehicle enussions budget(s) must be demonstrated with a regional 

emissions analysis that meets the requirements of 20.2.99.141 NMAC through 20.3.99.147 NMAC and 20.7.99.120 

NMAC. 

(2) The regional emissions analysis may be perfomled for any years in the timekame of the 

[- -1 conformitv determination (as described under Subsection D of 20.2.99.125 NMAC) provided 

they are not more than ten years apart and provided the analysis is performed for the attainment year (if it is in the 

timekame 

timeframe for 

of the 

the conformitv determination. Emissions 

transportation plan and conformity determination) and 

in years for which 

the 

coiisistency 

last year of 

with 

the [v 

motor vehicle en~issions 

budgets must be demonstrated, as required in Subsection B of 20.2.99.137 NMAC, may be determined by 

interpolating between the years for which the regional emissions analysis is performed. 

(3) When the timekame of the conformitv determination is shortened under Paragraph (2) of 

Subsection D of 20.2.99.125 NMAC. the conformity determination 111ust be accompanied by a regional emissions 

analysis (for informational purposed only) for the last vear of the b-ansportation plan. and for any vear shown to 

exceed motor vehicle emissions budoets in a prior reoional emissions analvsis (if such a vear extends bevond the 

timekame of the conformitv determination). 

E. Motor vehicle emissions budgets in submitted control strategy implementation plan revisions and 

submitted maintenance plans. 

(1) Consistency with the motor vehicle enussions budgets in submitted control strategy 

implementation plan revisions or maintenance plans must be demonstrated if US EPA has declared the motor 

vehicle emissions budget(s) adequate for transportation confonnity purposes, and the adequacy finding is effective. 

However, motor vehicle emissions budgets in submitted implementation plans do not supersede the motor vehicle 

emissions budgets in approved implementation plans for the same Clean Air Act requirement and the period of years 

addressed by the previously approved implementation plan, unless US EPA specifies otherwise in its approval of a 

SIP. 

(2) If US EPA has not declared an implementation plan submission's motor vehicle emissions 

budget(s) adequate for transportation conformity purposes, the budget(s) shall not be used to satisfy the 

requirements of this section. Consistency with the previously established motor vehicle emissions budget(s) must be 

demonstrated. If there are no previously approved implementation plans or implementation plan submissioils with 

adequate motor vehicle emissions budgets, the interim enlissions tests requiredby 20.2.99.138 NMAC must be 

satisfied. 

(3) If US EPA declares an implementation plan submission's motor vehicle emissions budget(s) 

inadequate for transportation conformity purposes and conformity of a trai~sportation plan or TIP has already been 

determined by US DOT using the budget(s), the conformity determination will remain valid. Projects included in 

that transportation plan or TIP could still satisfy 20.2.99.133 NMAC and 20.1.99.134 NMAC, which require a 

currently conforming transportation plan and TIP to be in place at the time of a project's conformity determination 

and that projects come from a conforming transportation plan and TIP. 

(4) US EPA will not find a motor vehicle emissions budget in a submitted control strategy 

implementation plan revision or maintenance plan to be adequate for transportation conformity purposes unless the 

following minimum criteria are satisfied: 

(a) the submitted control strategy implen~e~~tation planrevision or inaintenance plan was 

endorsed by the governor (or his or her designee) and was subject to a state public hearing; 

20.2.99 NMAC 
(b) before tlie control strategy inlplementation plan or maintenance plan was submitted to US 

EPA, consultation among federal. state, and local agencies occurred; full implementation plan docunlentation was 

provided to US EPA; and US EPA's stated concerns, if any, were addressed; 

(c) the motor vehicle emissioils budget(s) is clearly identified and precisely quantified: 

(d) the motor vehicle emissions budget(s1, when considered together with all other enlissions 

sources, is consistent with applicable requirements for reasonable further progress, attainment, or maintenance 

(whichever is relevant to thegiven implementation plan submission); 

(e) the motor vellicle emissions budget(s) is consistent with and clearly related to tlie emissions 

inventory and the control measures in the subinitted control strategy implementation plan revision or maintenance 

plan; and 

(f) revisions to previously submitted control strategy implementation plans or maintenance 

plans explain and document any changes to previously submitted budgets and control measures; impacts on point 

and area source emissions; any changes to established safety margins (see Subsection A0 of 20.2.99.7 NMAC for 

defmition); and reasons for the changes (including the basis for any changes related to emission factors or estimates 

of vehicle miles traveled). 

(5) Before determining the adequacy of a submitted niotor vellicle emissions budget, US EPA will 

review the department's compilation of public comments and response to comments that are required to be submitted 

with any implementation plan. US EPA will document its consideration of such conllllents and responses in a letter 

to the department indicating the adequacy of the submitted motor vehicle emissions budget. 

(6) When the motor vehicle emissions budget(s) used to satisfy the requirements of this section are 

established by an implementation plan submittal that has not yet been approved or disapproved by US EPA, the 

MPO and US DOT'S conformity determinations will be deemed to be a statement that the MPO and US DOT are not 

aware of any information that would indicate that enlissions consistent with the motor vehicle enlissions budget will 

cause or contribute to any new violation of any standard; increase the frequency or severity of any existing violation 

of any standard; or delay timely attainment of any standard or any required interim emission reductions or other 

milestones. 

F. Adequacy review process for implementation plan submissions. US EPA will use the procedure 

listin2 in Paragraph (1) of Subsection F of this section (20.2.99.137 NMAC) to review the adequacy of an 

implementation plan. 

(1) When US EPA reviews the adequacy of an implementation plan submission prior to EPA's final 

action on the implementation plan: 

(a) US EPA will notify tlie public through US EPA's website when US EPA receives an 

implenlentation plan submission that will be reviewed for adequacy; 

(b) the public will have a minimum of 30 days to comment on the adequacy of the 

implementation plan submission; if the complete implementation plan is not accessible electronically through the 

internet and a copy is requested within fifteen (15) days of the date of the website notice, the comment period will 

be extended 30 days from the date that a copy of tlie iillylementation plan is mailed; 

(c) after the public conmlent period closes, US EPA will inform the department in writing 

whether US EPA has found the submission adequate or inadequate for use in transportation conformity, including 

response to any comments submitted directly and review of comnlents submitted through the department process, or 

US EPA will include the determination of adequacy or inadequacy in a proposed or final action approving or 

disapproving the implementation plan under Subparagraph (c) of Paragraph (2) of Subsection F of this section 

(20.2.99.137 NMAC); 

(d) US EPA will publish a federal register notice to infornl the public of US EPA's finding; if 

EPA finds the submission adequate, the effective date of this finding will be fifteen (15) days from the date the 

notice is published as established in the federal register notice, unless US EPA is taking a final approval action on 

the SIP as described in Subparagraph (c) of Paragraph (2) for Subsection F for this section (20.2.99.137 NMAC); 

(e) US EPA will announce whether the implementation plan subn~ission is adequate or 

inadequate for use in transportation conformity on US EPA's website; the website will also include US EPA's 

response to conlrnents of any conlments were received during the public conmments period; 

(f) if after US EPA has found a subn~ission adequate, US EPA has cause to reconsider this 

finding, US EPA will repeat actions described in Subparagraphs (a) through (e) of Paragraph (1) of Subsection F or 

Paragraph (2) of'Subsection F of 20.2.99.137 NMAC unless US EPA determines that there is no need for additional 

public comment given the deficiencies of the inlplementation plan submission; in all cases where US EPA reverses 

its previous finding to a finding of inadequacy under Paragraph (1) of Subsection F of 20.2.99.137 NMAC, such a 

finding will become effective imiediately upon the date of US EPA's letter to the department; 

20.2.99 NMAC 
(g) if after EPA has found a submission inadequate. US EPA has cause to reconsider the 

adequacy of that budget, US EPA will repeat actions described in Subparagaphs (a) through (e) of Paragraph (I) of 

this section (20.2.99.137 NMAC). 

(2) Wen US EPA reviews the adequacy of an inlplementation plau submission sin~ultaneously with 

US EPA's approval or disapproval of the implementation plan: 

(a) US EPA's federal register notice of proposed or direct fmal rulemaking will serve to notify 

the public that US EPA will be reviewing the implementation plan subnlission for adequacy; 

(b) the publication of the notice of proposed rulemaking will start a public comment period of 

at least thirty (30) days; 

(c) US EPA will indicate whether the implementation plan subinission is adequate and thus can 

be used for conformity either in US EPA's fmal rulemaking or through the process described in Subparagraphs (c) 

through (e) of Paragraph (1) of Subsection F of this section (20.2.99.137 NMAC); if US EPA makes an adequacy 

finding through a final rulemaking that approves the implementation plan subnlission: such a fmding will become 

effective upon the publication date of US EPA's approval in the federal register, or upon the effective date of US 

EPA's approval if such action is conducted through direct final rulemalung; US EPA will respond to comments 

received directly and review comments submitted through the department process and include the response to 

comments in the applicable docket. 

[12/14/94; 11/23/98; 20.2.99.137 NMAC - Rn, 20 TU'MAC 2.99.137 1013 1/02; A: 10/15/05; A, 06/01/09] 

20.2.99.138 CFUTEFUA AND PROCEDURES - INTERIM EMISSIONS M AREAS WITHOUT 

MOTOR VEHICLE EMISSIONS BUDGETS. 

A. The transportation plan, TIP, and project not from a conforming transportation plan and TIP must 

satisfy the interim emissions test(s) as described in Subsections C through L of 20.2.99.128 NMAC. This criterion 

applies to the net effect of the action (transportation plan, TIP, or pro~ect not from a conforming transportation plan 

and TIP) on motor vehicle emissions from the entire transportation system. 

B. Ozone areas. The requirements of this subsection (Subsection B of 20.2.99.138 WAC) apply to 

all I -hour ozone and 8-hour ozone NAAQS areas, except for certain requirements as indicated. This criterion may 

be met. 

(1) In moderate and above ozone nonattainment areas that are subject to the reasonable further 

progress requirements of CAA Section 182(b)(l) if a regional emissions analysis that satisfies the requirements of 

20.2.99.141 NMAC through 20.2.99.147 NMAC and Subsections G through L of 20.2.99.138 NMAC demonstrates 

that for each analysis year and for each of the pollutants described in Subsection F of 20.2.99.138 NMAC: 

(a) the en~issions predicted in tile "action" scenario are less than the emissions predicted in the 

"baseline" scenario, and this can be reasonably expected to be true in the periods between the analysis years; and 

(b) the en~issions predicted in the "action" scenario are lower than 1990 emissions by any 

nonzero amount, in areas for the 1-hour ozone NAAQS as described in Subsection C of section 20.2.99.128 NMAC; 

or the 2002 emissions by any nonzero amount. in areas for the 8-hour ozone NAAQS as described in Subsections D 

and E of 20.2.99.128 NMAC. 

(2) In marginal and below ozone nonattainment areas and other ozone nonattainment areas that are 

not subject to the reasonable further progress requirements of the Clean Air Act Section 182(b)(l) if a regional 

emissions analysis that satisfies the requirements of section 20.2.99.141 NMAC through 20.2.99.147 NMAC and 

Subsection G through J of 30.2.99.138 NMAC demonstrates that for each analysis year and for each of the 

pollutants described in Subsection F of 20.2.99.138 NMAC: 

(a) the emissions predicted in the "action" scenario are not greater than the emissions predicted 

in the "baseline" scenario, and this can be reasonably expected to be true in the periods between the analysis years; 

or 

(b) the emissions predicted in the "action" scenario are not greater than the 1990 emissions, in 

areas for the I-hour NAAQS as described in Subsection C of 20.2.99.1 28 NMAC; or the 2002 emissions, in areas 

for the 8-hour ozone NAAQS as described in Subsections D and E for 20.2.99.128 NMAC. 

C. CO areas. This criterion may be met: 

(1) in moderate areas with design values greater than 12.7 ppm and serious CO nonattainment areas 

that are subject to Clean Air Act Section 187(a)(7) if a regional emissions analysis that satisfies they requirements of 

sections 20.2.99.141 NMAC through 20.2.99.147 NMAC and Subsections G tluough J of 20.2.99.138 NMAC 

demonstrates that for each analysis year and for each of the pollutants described in Subsection F of 20.1.99.138 

NMAC: 

20.2.99 NMAC 19 
(a) the emissions predicted in the "action" scenario are less than the enlissions predicted in the 

"baseline" scenario, and this can be reasonably expected to be true in the periods between the allalysis years; and 

(b) the emissions predicted in the "action" scenario are lower than 1990 emissions by any 

noiuero amount. 

(2) in moderate areas with design values less than 13.7 ppm and not classified CO nonattainnlent 

areas if a regional enlissions analysis that satisfies the requirements of sections 20.2.99.141 NMAC through 

20.2.99.147 NMAC and Subsections G through ;I of 20.2.99.13s NMAC demonstrates that for each analysis year 

and for each of the pollutants described in Subsection F of 70.2.99.138 NMAC: 

(a) the emissions predicted in the "action" scenario are not greater than the emissions predicted 

in the "baseline" scenario, and this can be reasonably expected to be true in the periods between the analysis years; 

or 

(b) the emissions predicted in the "action" scenario are not greater than 1990 emissions. 

D. PMlO and NO2 areas. This criterion may be met in PMlO and NO2 nonattaimnent areas if a 

regional en~issions analysis that satisfies the requirements of 20.2.99.141 NMAC through 20.2.99.147 NMAC and 

Subsections G through J of 20.2.99.138 MAC demonstrates that for each anaIysis year and for each of the 

pollutants described in Subsection F of 20.7.99.138 NMAC, one of the followillg requirements is met: 

(1) the emissions predicted in the "action" scenario are not greater than the emissions predicted in the 

"baseline" scenario, and this can be reasonably expected to be true in the periods between the analysis years; or 

(2) the emissions predicted in the "action" scenario are not greater than baseline emissions; baseline 

emissions are those estimated to have occurred during caIendar year 1990, unless the conformity implementation 

plan revision required by 40 CFR 51.390 defines the baseline emissions for a PM10 area to be those occurring in a 

different calendar year for which a baseline enlissions inventory was developed for the purpose of developing a 

control strategy implementation plan. 

E. PM2.5 areas. This criterion maybe met in PM2.5 nonattainment areas if a regional emissions 

analysis that satisfies the requirements of sections 20.7.99.141 NMAC through 20.2.99.147 NMAC and Subsections 

G through J of 20.2.99.138 NMAC demonstrates that for each anaIysis year and for each of the pollutants described 

in Subsection F of 20.2.99.138 NMAC, one of the following requirements is met: 

(1) the emissions predicated in the "action" scenario are not greater than the enlissions predicted in 

the "baseline" scenario, and this can be reasonably expected to be true in the periods between the analysis years; or 

(2) the enlissions predicted in the "action" scenario are not greater that 2002 emissions. 

F. Pollutants. The regional emissions analysis must be performed for the following pollutants: 

(1) VOC 111 ozone areas; 

(2) NOx in ozone areas, unless the US EPA administrator determines that additional reductions of 

NOx would not contribute to attainment; 

(3) CO in CO areas; 

(4) PM10 in PM 10 areas; 

(5) VOC andlor NOx in PM10 areas if the US EPA regional administrator or the department has 

made a finding that such precursor emissions from within the area are a significant contributor to the PMlO 

nonattainment problem and has so notified the MPO and US DOT; 

(6) NOx in NO2 areas; 

(7) PM2.5 areas; 

(8) re-entrained road dust in PM2.5 areas only if the US EPA regional administrator or the 

department has made a finding that eillissions from re-entrained road dust within the area are a si,onificant 

conhibutor to the PM2.5 nonattainment problem and has so notified the MPO and US DOT; 

(9) nitrogen oxides in PM2.5 areas, unless the EPA regional administrator and the department have 

made a finding that emissions of nitrogen oxides from within the area are not a significant contributor to the PM2.5 

nonattainment problem and has so notified the MPO (or the NMDOT in the absence of an MPO) and US DOT; and 

(10) VOC, [S&J SO' and/or ammonia in PM2.5 areas if the EPA regional administrator or the 

department has made a finding that any of such precursor emissions fiom within the area are a si-~ficant 

contiibutor to the PM2.5 nonattainnlent problem and has so notified the MPO (or the NMDOT in the absence of an 

MPO) and US DOT. 

G. Analysis years. 

(1) The regional enlissions analysis must be performed for analysis years that are no more than ten 

(10) years apart. The fist analysis year n~ust be no more than five (5) years beyond the year in which the conformity 

detennination is being made. The last year of [PI the titimeframe of the conformity 

determination (as described under Subsection D of 20.2.99.125 NMAC) ntust also be an analysis year. 

20.2.99 NMAC 20 
(2) For areas using Subparagraph (a) of Paragraph (2) of Subsection B of section 20.2.99.138 NMAC, 

Subparagraph (a) of Paragraph (7) of Subsection C of section 20.2.99.138 MAC. Paragraph (1) of Subsection D of 

section 20.2.99.138 NMAC, and Paragraph (1) of Subsection E of section 30.2.99.138 NMAC. a regional emissions 

analysis that satisfies the requirements of sections 20.2.99.141 NMAC through 20.2.99.147 NMAC and Subsections 

G tlGough J of section 20.3.99.138 would not be required for analysis years in which the transportation projects and 

planning assumptions in the "action" and "baseline" scenarios are exactly the same. In such a case, Subsection A of 

section 20.2.99.138 NMAC can be satisfied by documenting that the transportation prolects and planning 

assumptions in both scenarios are exactly the same, and consequently, the emissions predicted in the "action" 

scenario are not greater than the enlissions predicted in the "baseline" scenario for such analysis years. 

(3) When the timeframe of the conformitv determination is shortened under Paragrap11 (2) of 

Subsection D of 20.2.99.125 NMAC. the conformitv determination must be accompanied bv a regional emissions 

analvsis (for infomlational purposes onlv) for the last vear of the transportation plan. 

H. "Baseline" scenario. The regional emissions analysis required by Subsections B and E of 

20.2.99.138 NMAC must estimate the emissions that would result from the "baseline" scenario in each analysis 

year. The "baseline" scenario must be defined for each of the analysis years. The "baseline" scenario is the future 

transportation system that will result from current programs, including the following (except that exempt projects 

listed in Subsection A of 20.2.99.149 NMAC and projects exempt from regional enlissions analysis as listed in 

Subsection B of 20.2.99.149 NMAC need not be explicitly considered): 

(1) all in-place regionally significant highway and transit facilities, services and activities; 

(2) all ongoing travel demand management or transportation system management activities; and 

(3) completion of all regionally significant prolects, regardless of funding source, which are currently 

under construction or are undergoing right-of-way acquisition (except for hardship acquisition and protective 

buying); come from the first year of the previously conforming transportation plan andlor TLP; or have completed 

the NEPA process. 

I. "Action" scenario. The regional enlissions analysis required by Subsections B and E of 

20.2.99.138 NMAC must estimate the emissions that would result from the "action" scenario in each analysis year. 

The "action" scenario must be defined for each of the analysis years. The "action" scenario is the transportation 

system that would result from the implenlentation of the proposed action (transportation plan, TLP, or project not 

fkom a conforming transportation plan and TIP) and all other expected regionally significant prolects in the 

nonattainrnent area. The "action" scenario must include the following (except that exempt projects listed in 

Subsection A of 20.2.99.149 NMAC and projects exempt from regional emissions analysis as listed in Subsection B 

of 20.3.99.149 NMAC need not be explicitly considered): 

(1) all facilities, services, and activities in the "baseline" scenario; 

(2) coinpletion of all TCMs and regionally significant projects (including facilities, services, and 

activities) specifically identified in the proposed transportation plan which will be operational or in effect in the 

analysis year, except that regulatory TCMs may not be assumed to begin at a future time unless the regulation is 

already adopted by the enforcing jurisdiction or the TCM is identified in the applicable implementation plan; 

(3) all travel demand management programs and transportation system management activities known 

to the MPO: but not included in the applicable inlplementation plan or utilizing any federal hnding or approval, 

wllich have been hlly adopted and/or hnded by the enforcing jurisdiction or sponsoring agency since the last 

confomity determination; 

(4) the incremental effects of any travel demand management programs and transportation system 

management activities known to the MPO, but not included in the applicable implementation plan or utilizing any 

federal hnding or approval, which were adopted and/or hnded prior to the date of the last conformity 

detennination, but which have been modified since then to be nlore stringent or effective; 

(5) completion of all expected regionally significant highway and transit projects which are not fiom 

a conforming transportation plan and TIP; and 

(6) completion of all expected regioilally significant non-FHWAIFTA highway and transit projects 

that have clear funding sources and comnlitnlents leading toward their implementation and completion by the 

analysis year. 

J. Projects not from a confomling transportation plan and TIP. For the regional en~issions analysis 

required by Subsections B and E of 20.2.99.1 38 MAC, if the project which is not from a conforming transportation 

plan and TIP is a modification of a project currently in the plan or TIP, the "baseline" scenario must include the 

project with its original design concept and scope, and the "action" scenario must include the project with its new 

design concept and scope. 

[12/14/94; 11/23/98; 20.2.99.138 NMAC - Rn, 20 NMAC 2.99.138 10/31/07; A, 10/15/05; A, 9/1/07; A: 06/01/09] 

20.2.99 NMAC 2 1 
20.2.99.139 CONSEQUENCES OF CONTROL STRATEGY IMPLEMENTATION PLAN FAILURES. 

A. Disapprovals. 

(1) If US EPA disapproves any submitted control strategy implementation plan revision (with or 

without a protective finding), the confornlity status of the transportation plan and TIP shall lapse on the date that 

highway sanctions as a result of the disapproval are imposed on the nonattainnlent area under Section 179(b)(l) of 

the CAA. No new transportation plan. TIP, or project may be found to conform until another control strategy 

implementation plan revision fulfilling the same CAA requirements is submitted and conformity to this submissioi~ 

is determined. 

(2) If US EPA disapproves a submitted control strategy implementation plan revision without making 

a protective fmding, only projects in the first [w] four (4) years of the curreiltly conforming trailsportation 

plan and TIP or that meet the reauirements of Subsection B of 20.2.99.1 11 NMAC during the 12-month lapse grace 

period may be found to conform. This means that beginning on the effective date of a disapproval without a 

protective finding; no transportation plan, TIP, or pro-ject not in the first [&ee424] four (4) years of the curreiltly 

conforming transportation plan and TIP or that meets the reauirements of Subsection B of 20.2.99.11 1 NMAC 

during the ]?-month lapse grace period may be found to conform until another control strategy implementation plan 

revision fulfilling the same Clean h Act requirements is submitted. US EP.4 finds its motor vehicle emissions 

budget(s) adequate pursuant to section 20.2.99.137 NMAC or approves the submission, and conformity to the 

implementation plan revision is determined. 

(3) In disapproving a control stratea implementation plan revision, US EPA would give a protective 

finding where a submitted plan contains adopted control measures or written conlmitments to adopt enforceable 

control measures that fully satisfy the emissions reductions requirements relevant to the statutory provision for 

which the implementation plan revision was submitted; such as reasonable further progress or attainment. 

B. Failure to submit and incompleteness. In areas where US EPA notifies the department, MPO, and 

US DOT of the department's failure to submit a control strategy implementation plan or submission of an 

incomplete control strategy implementation plan revision (either of which initiates the sanction process under CAA 

Sections 179 or 110(m)), the conforn~ity status of the transportation plan and TIP shall lapse on the date that 

highway sanctions are imposed on the nonattainment area for such failure under Section 179(b)(l) of the CAA, 

unless the failure has been remedied and acknowledged by a letter from the US EPA regional administrator. 

C. Federal implementation plans. If US EPA promulgates a federal implementation plan that 

contains motor vehicle emissions budget(s) as a result of a department failure: the corlformity lapse imposed by 

20.2.99.139 NMAC because of the department failure is removed. 

[12/14/94; 11/23/98; 20.2.99.139 NMAC - Rn, 20 NMAC 2.99.139 10/31102; A, 10/15/05; A, 06/01/09] 

20.2.99.140 REQUIREMENTS FOR ADOPTION OR APPROVAL OF PROJECTS BY OTHER 

RECIPIENTS OF FUNDS DESIGNATED UNDER TITLE 23 U.S.C. OR THE FEDERAL TRANSIT LAM'S 

A. Except as provided in Subsection B of 20.2.99.140 NMAC, no recipient of federal funds 

designated under title i3 U.S.C. or the federal transit laws shall adopt or approve a regionally s~gnificant lughway or 

transit project, regardless of funding source: unless the recipient fmds that the requirements of one of the following 

are met: 

(1) the project comes from the currently conforming transportation plan and TIP lor meets the 

reauirements of Subsection B of 20.2.99.1 11 WAC during the 12-month lapse grace period). and the project's 

design concept and scope have not changed significantly from those that were included in the regional emissions 

analyses for that transportation plan and TIP; or 

(2) the project is included in the regional emissions analysis for the currently conforming 

transportation plan and TIP conformity determination {or meets the requirements of Subsection B of 20.2.99.1 11 

NMAC during the 17-month lapse grace period), [(]even if the project is not strictly included in the transportation 

plan or TIP for the purpose of MPO project selection or endorsen~ent[j], and the project's design concept and scope 

have not changed significantly [h] _from those which were included in the regional emissions analysis; or 

(3) a new regional emissions analysis including the project and the currently coilfornling 

transportation plan and TIP demonstrates that the transportation plan and TP would still conform if the pro~ect were 

implemented (consistent with the requirements of 70.2.99.137 NMAC aildior 20.2.99.138 NMAC for a project not 

from a confornling transportation plan and TIP). 

B. In isolated rum[ nonattaiilment and maintenance areas subject to Subsection G of 20.2.99.128 

NMAC, no recipient of federal funds designated under title 23 U.S.C. or the federal transit laws shall adopt or 

20.2.99 NMAC - ?7 -
approve a regionally significant highway or transit prqject, regardless of funding source, u~lless the recipient finds 

that the requirements of one of the follo\r.ing are met: 

(I) the project was included in the regional emissions analysis supporting the most recent conformity 

determination that reflects the portion of the statewide transportation plan and TIP which are in the nonattainment or 

maintenance area: and the project's design concept and scope has not changed significantly; or 

(2) a new regional enlissions analysis including the project and all other regionally significant 

projects expected in the nonattainment or maintenance area demonstrates that those projects in the statewide 

transportation plan and statewide TIP which are in the nonattainment or maintenance area would still conform if the 

project were implemented (consistent with the requirements of 20.2.99.137 NMAC and/or 20.2.99.138 NMAC for 

projects not from a conforming transportation plan and TIP). 

C. Notwithstanding Subsections A and B of section 20.2.99.140 NMAC, in nonattainment and 

maintenance areas subject to Subsections J or K of section 20.2.99.128 NMAC for a given pollutant/precursor and 

NAAQS, no recipient of federal funds designated under title 20 U.S.C. or the federal transit laws shall adopt or 

approve a regionally significant highway or transit project, regardless of funding source. Unless the recipient finds 

that the requirements of one of the following are met for that pollutant/precursor and NAAQS: 

(1) the prolect was included in the most recent confornlity determination for the transportation plan 

and TIP and the project's design concept and scope has not changed significantly; or 

(2) the project as included in the most recent conformity determination that reflects the portions of 

the statewide transportation plan and statewide TIP which are in the nonattainment or maintenance area, and the 

project's design concept and scope has not changed significantly. 

[12/14/94; 11/73/98; 20.2.99.140 NMAC - Rn, 20 NMAC 2.99.140 10/31/02: A, 10/15/05; A, 06/01/09] 

20.2.99.148 PROCEDZJFLES FOR DETERMINING LOCALIZED CO, PMlO AND PM2.5 

CONCENTRATIONS (HOT-SPOT AKALYSIS). 

A. CO Hot-spot Analysis. 

(1) The demonstrations required by 20.1.99.135 NMAC shaIl be based on quantitative analysis using 

the applicable air quality models, data bases, and other requirements specified in 40 CFR part 51 appendix W 

("Guideline on Air Quality Models"). These procedures shall be used in the following cases, unless; different 

procedures developed through the interagency consultation process required in 20.2.99.1 16 MAC through 

20.2.99.124 NMAC and approved by the EPA region 6 administrator are used: 

(a) for prolects in or affecting locations, areas, or categories of sites which are identified in the 

SIP as sites of violation or possible violation; 

(b) for projects affecting intersections that are at level-of-senrice D, E, or F, or those that will 

change to level-of-senrice D, E, or F because of increased traffic volumes related to the project; 

(c) for any project affecting one or more of the intersections which the SIP identifies as the top 

three intersections in the nonattainment or maintenance area based on the highest traffic volumes; and 

(d) for any project affecting one or more of the intersections which the SIP identifies as the top 

three intersections in the nonattainment or maintenance area based on the worst level of service. 

(2) In cases other than those described in Paragraph (1) of Subsection A of 20.2.99.146 MAC, the 

demonstrations required by 20.2.99.135 MAC may be based on either: 

(a) quantitative methods that represent reasonable and conlrnon professional practice; or 

(b) a qualitative consideration of local factors, if this can provide a clear demonstration that the 

requirements of 20.2.99.135 NMAC are met. 

(3) US DOT. in consultation with US EPA. mav also choose to make a cateeorical hot-spot findine 

that Subsection A of 20.2.99.135 MAC is met without further hot-spot analysis for anv project described in 

Paramaphs (1) and (2) of Subsection A of 20.2.99.148 NMAC) based on appropriate modeling. US DOT. in 

consultation with US EPA. nlav also consider the current air quality circumstances of a civen CO nonattainnient or 

maintenance area in categorical hot-spot findings for applicable FHWA or FTA projects. 

B. PMlO and PM2.5 Hot-spot Analysis. 

(1) The hot-spot demonstration required by 20.2.99.135 MAC shall be based on quantitative 

analysis methods for the following types of projects: 

(a) new [ewxpad&] Iughway projects that have a significant number of [- 

-1 diesel vehicles. and expanded hiehwav projects that have a significant increase in the number of diesel 

vehicles; 

20.2.99 MAC 
(b) projects affecting llltersectiolls that are at level-of-service D, E, or F with a significant 

number of diesel vehicles, or those that will change to level-of-service D: E, or F because of increased traffic 

volumes from a significant number of diesel vehicles related to the prqject; and 

(c) new bus and rail terminals and transfer points which have a significant number of diesel 

vehicles congregating at a single location; 

(d) expanded bus and rail ternunals and transfer points that significantly increase the number of 

diesel vehicles congregating at a single location; and 

(e) projects in or affecting locations, areas, or categories of sites which are identified in the 

PMI 0 or PM2.5 applicable implementation plan submission, as appropriate, as sites of violation or possible 

violations. 

(2) Where quantitative analysis methods are not required, the demonstration required by 20.7.99.135 

NMAC for pro~ects described in Paragraph (1) of Subsection B of this section must be based on a qualitative 

consideration of local factors. 

(3) US DOT. in consultation with EPA, may also choose to make a categorical hot-spot fulding that 

section 20.2.99.135 NMAC is met without further hot-spot analysis for any pro~ect described in Paragraph (1) of 

Subsection B of this section based on appropriate modeling. US DOT, iu consultation with EPA, may also consider 

the current air quality circunlstances of a given PM2.5 or PM10 nonattainment or maintenance area in categorical 

hot-spot findings for applicable FHWA or FTA projects. 

(4) The requirements of this Subsection B of 20.2.99.146 NMAC for quantitative analysis will not 

take effect until EPA releases modeling guidance on this subject and announces in the federal register that these 

requirements are in effect. 

C. General Requirements. 

(1) Estimated pollutant concentrations shall be based on the total emissions burden which may result 

&om the implementation of the project, summed together with future background concentrations. The total 

concentration shall be estimated and analyzed at appropriate receptor locations in the area substantially affected by 

the project. 

(2) Hot-spot analyses shall include the entire project, and may be performed oilly after the major 

design features which will si,pificantIy impact concentrations have been identified. The future background 

concentration should be estimated by multiplying current background by the ratio of future to current traffic and the 

ratio of future to current emission factors. 

(3) Hot-spot analysis assumptions shall be consistent with those in the regional emissions ailalysis for 

those inputs which are required for both analyses. 

(4) CO, PMlO or PM2.5 mitigation or control measures shall be assumed in the hot-spot analysis 

only where there are written commitments &om the project sponsor or operator to implement such measures, as 

required by Subsection A of 20.2.99.148 MAC. 

(5) CO, PMlO, and PM2.5 hot-spot analyses are not required to consider construction-related 

activities which cause temporary increases in emissions. Each site which is affected by construction- related 

activities shall be considered separately, using established "guideline" methods. Temporary increases are defined as 

those which occur only during the construction phase and last five years or less at any individual site. 

[12/14/94; 11/23/98; 20.2.99.148 WAC - Rn, 20 NMAC 2.99.148) 10/31/02; 20.2.99.148 NMAC - Rn, 

20.2.99.146 WAC, 10/15/05; A, 9/1/07; A, 06/0 1/09] 

20.2.99.151 EliEMPTIONS. 

A. Exempt projects. Notwithstanding the other requirements of this part, hjghway and transit prqjects 

of the types listed in table 2 of this section are exenlpt from the requirement to determine conformity. Such projects 

may proceed toward implementation even in the absence of a conforming transportation plan and TIP. A particular 

action of the type listed in table 2 (of this section) is not exenlpt if the MPO in consultation with other agencies (e.g. 

the department, see Subsection C of 20.2.99.120 NMAC, the US EPA, and the FHWA (in the case of a highway 

project) or the FTA (in the case of a transit project)) concur that it has potentially adverse emissions impacts for any 

reason. NMDOT and the MPO, in consultation with the department, as appropriate, must assure that exempt 

projects do not interfere with TCM imnplementation. Table 2 follows. Table 2. Exempt Projects. 

(I) Safety: 

(a) railroad/higliway crossing; 

(b) [W .. . ~iects that correct. improve. or eliminate a hazardous 

location or feature; 

(c) safer non-federal-aid system roads; 

20.2.99 NMAC 
(d) shoulder improvements; 

(e) increasing sight distance; 

(f) [-I hiehway safety improvement prozanl inlulementation; 

(g) traffic control devices and operating assistance other than signalization prolects: 

(h) railroad/highway crossing warning devices; 

(i) guardrails, median barriers: crash cushions; 

(j) pavement resurfacing or rehabilitation; 

(k) [PI pavement marking; 

(1) emergency relief (73 U.S.C. 135); 

(m) fencing; 

(n) skid treatments: 

(0) safety roadside rest areas; 

(p) adding medians; 

(q) huck climbing lanes outside the urbanized area; 

(r) lighting improvements; 

(s) widening narrow pavements or reconstructing bridges (no additional travel lanes); 

(t) emergency truck pullovers. 

(2) Mass transit: 

(a) operating assistance to transit agencies; 

(b) purchase of support vehicles; 

(c) rehabilitation of transit vehicles (In PMlO and PM2.5 nonattainnlent or maintenance areas, 

only if projects are in compliance with control measures in the SIP.); 

(d) purchase of office, shop, and operating equipment for existing facilities; 

(e) purchase of operating equipment for vehicles (e.g., radios, fareboxes: lifts, etc.); 

(f) construction or renovation of power, signal: and communications systems; 

(g) construction of small passenger shelters and information kiosks; 

(h) reconstruction or renovation of transit buildings and structures (e.g., rail or bus buildings, 

storage and maintenance facilities, stations, terminals, and ancillary structures); 

(i) rehabilitation or reconstruction of track structures, track, and trackbed in existing rights-ofway: -. 

(j) purchase of neat buses and rail cars to replace existing vehicles or for minor expansions of 

the fleet (In PMlO nonattainrnent or maintenance areas, such projects are exempt only if prolects are in compliance 

with control measures in the SIP.): , . 

(k) construction of new bus or rail storage/maintenance facilities categorically excluded in 23 

CFR 77 1. 

(3) Air quality: 

(a) continuation of ride-sharing and van-pooling promotion activities at current levels; 

(b) bicycle and pedestrian facilities. 

(4) Other: 

(a) specific activities which do not involve or lead directly to construction, such as: 

(i) planning and teclmical studies; 

(ii) grants for training and research programs; 

(iii) planning activities conducted pursuant to titles 23 and 49 U.S.C.; or 

(i) federal-aid systems revisions; 

(b) engineering to assess social, economic, and environmental effects of the proposed action or 

alternatives to that action; 

(c) noise attenuation; 

(d) einergency or hardship advance land acquisitions (23 CFR 7 10.503): 

(e) acquisition of scenic easements; 

(f) plantings, landscaping, etc.; 

(g) sign removal; 

(h) directional and informational signs; 

(i) transportation eihancement activities (except rehabilitation and operation of historic 

transportation buildings, structures, or facilities); 

(j) repair of damage caused by natural disasters, civil unrest, or terrorist acts, except projects 

involving substantial functional, locational, or capacity changes. 

20.2.99 NMAC 
B. Projects exempt from regional en~issions analyses. Notwithstanding the other requirements of this 

part. highway and transit projects of the types listed in table 3 of this section are exempt from regional en~issions 

analysis requirements. The local effects of these projects with respect to CO concentrations must be considered to 

determine if a hot-spot analysis is required prior to making a project-level confornuty determination. The local 

effects of projects with respect to PMlO and PM2.5 concentrations must be considered and a hot-spot analysis 

performed prior to making a project-level confom~ity determination, if a project it1 table 3 also meets the criteria of 

Paragraph (1) of Subsection B of section 20.2.99.148 NMAC. These projects may then proceed to the project 

development process even in the absence of a confom~ing transportation plan and TIP. A particular action of the 

type listed in table 3 (of this section) is not exempt from regional emissioils analysis if the MPO in consultation with 

other agencies (e.g. the department, see Subsection C of 20.2.99.120 NMAC), the US EPA, and tlle FHWA (in the 

case of a Iighway project) or the FTA (in the case of a transit project) concur that it has potential regional impacts 

for any reason. Table 3 follows. Table 3. Projects Exempt from Re,oional Emissions Analyses: 

(1) intersection channelization projects; 

(2) intersection signalization projects at individual intersections: 

(3) interchange reconfiguration projects; 

(4) changes in vertical and horizontal alignment; 

(5) truck size and weight inspection stations; 

(6) bus ternlinais and transfer points. 

[12/14/94; 11/23/98; 20.2.99.151 NMAC - Rn, 20 NMAC 2.99.151, 10/31/02; 20.2.99.151 NMAC - Rn, 

20.2.99.149 NMAC & A, 10/15/05; A, 9/1/07; A, 06/01/09] 

20.2.99 NMAC 
STATE OF NEW MEXICO 

ENVIRONMENTAL IMPROVEMENT BOARD 

IN THE MATTER OF PROPOSED AMENDMENTS 

TO 20.2.99 NMAC - CONFORMITY TO THE STATE 

IMPLEMENTATION PLAN OF TRANSPORTATION 

PLANS, PROGRAMS, AND PROJECTS. 

NEW MEXICO ENVIRONMENT DEPARTMENT 

NOTICE OF INTENT TO PRESENT TECHNICAL TESTIMONY 

Pursuant to 20.1.1.302.A NMAC, The New Mexico Environment Department (NMED) 

Environmental Protection Division ("the Division"), on behalf of the Air Quality Bureau, 

(Bureau) hereby submits its Notice of Intent to present technical testimony in this proceeding. 

1. The person for whom the witnesses will testify. 

The New Mexico Environment Department, Environmental Protection Division. 

2. The name and qualifications of each technical witness. 

Gail Cooke. Ms. Cooke is an Environmental Planner in the Control Strategies Section of 

the Air Quality Bureau. She has worked in the Air Quality Bureau since June 1999. Ms. Cooke 

holds a bachelor degree in Environmental Design fiom Texas A&M University and a master 

degree in Urban and Regional Planning from Virginia Tech. Ms. Cooke's resume is attached as 

NMED Exhibit 1. 

3. Summary and Estimated Duration of Testimony 

Ms. Cook's written testimony is attached as NMED Exhibit 2. Ms. Cooke will provide 

testimony regarding the proposed "Conformity to the State Implementation Plans, Programs, and 

Notice of Intent Page 1 of 3 
Projects" regulation attached as NMED Exhibit 3. The Division estimates Ms. Cooke's 

testimony will take 1 hour. 

4. Text of Recommended Modifications to the Proposed Realatorv Change 

The Division recommends changes to 20.2.99 NMAC as proposed in the petition of 

October 6,2008 and as attached as NMED Exhibit 3. 

5. List and Description of Exhibits 

The Division submits the following exhibits: 

Exhibit Number Title of Exhibit 

NMED 1 Resume of Gail Cooke. 

NMED 2 Written Testimony of Gail Cooke. 

NMED 3 Proposed Changes to 20.2.99 NMAC. 

NMED 4 January 24,2008, Federal Register Notice - Transportation Conformity 

Rule Amendments. 

NMED 5 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 

Legacy for Users (P.L. 109-59): Table of Contents and Sec. 601 1 

(Transportation Conformity). 

NMED 6 Spanish and EngIish Public Hearing Notices 

NMED 7 New Mexico Register Notice of Hearing 

6. Reservation of Rights 

This Notice of Intent to Present Technical Testimony is based on the Division's petition. 

The Division reserves the right to call any person to testify and to present any exhibit in response 

to another notice of intent or public comment filed in this matter or to any testimony or exhibit 

offered at the public hearing. The Division also reserves the right to call any person as a rebuttal 

witness and to present any exhibit in support thereof. 

Notice of Intent Page 2 of 3 
Respectfully submitted, 

NEW MEXICO ENVIRONMENT DEPARTMENT 

OFFICE OF GENERAL COUNSEL - -/---=-- 

Bill Grantham 

Assistant General Counsel 

New Mexico Environment Department 

1190 St. Francis Drive 

Santa Fe, New Mexico 87502-61 10 

Telephone (505) 827-2824 

Facsimile (505) 827-1628 

Bill.grantham@state.nm.us 

Notice of Intent Page 3 of 3 
Gail F. Cooke 

Home:(505) 473-9169 

Work: (505) 955-8022 

gailfran33@yahoo.com 

Master of Urban and Regional Planning, Concentration: Environmental Planning, Krginia 

Tech, Blacksburg, Virginia, 1998 

Major Project: The Implementation of Virginia Erosion and Sediment Control Laws and 

Regulations. 

Bachelor of Environmental Design, Texas A&M University, College Station, Texas, 1995 

Other areas of study include Environmental Science, Soil Science, and Civil Engineering. 

State of New Mexico Environment Department, Air Quality Bureau 1999-Present 

Environmental Analyst/Planner - Public outreach, including preparing outreach material for the 

general public and organizing public meetings and open houses; preparation of emission 

inventory updates and maintenance plans for the State lmplementation Plan submittals; 

development of local initiative plans to help reduce criteria air pollutants; reviewing of 

environmental assessments and environmental impact statements; grant writing; and regulatory 

development. 

Taschek Environmental Consulting 1998-1 999 

Environmental Planner - General environmental planning; conducted environmental 

assessments, and initial site assessments; assisted in public outreach; assisted in transportation 

planning, and land use planning projects; and worked extensively with state regulations and 

federal rules, including the National Environmental Policy Act. 

Natural Events Action Plan for Dofia Ana County, New Mexico 

Assisted in the development of the Natural Events Action Plan (NEAP) for Dofia ha County, 

NM. The NEAP was created in 2000 to help control anthropogenic sources of wind blown dust 

in Doiia Ana County, NM. The NEAP is a local initiative that includes local and county 

ordinances, stakeholder agreements, and a public outreach campaign by the State of New 

Mexico. I have prepared brochures, press releases, public service announcements, and 

informational mail outs. I have assisted in the planning of open houses to educate the public on 

dust and its potential health and environmental risks. I am currently the project manager for the 

Doiia ha County NEAP . 

2005 Revisions to 20.2.99 NMA C- Conformity to the State Implementation Plan of 

Transportation Plans, Programs, and Projects. 

Acted as the lead in the adoption of revisions to 20.2.99 NMAC. The revisions to 20.2.99 

NMAC were in response to amendments made to the federal rule 40 CFR Part 93 -Determining 
Conformity of Federal Actions to State or Federal Implementation Plans. The main revisions 

included minor amendments to the 18-month requirement for initial State Implementation Plan 

submissions, the addition of a grace period for newly designated nonattainment areas, and the 

inclusion of the new 8-hour ozone and Particulate Matter 2.5 microns in size National Ambient 

Air Quality Standards. The revised regulation was adopted by the Environmental Improvement 

Board iq September of 2005. 

Grant County NonattainmentYRedesignation 

Acted as the lead in the redesignation of the Grant County Sulfur Dioxide Nonattainment area. 

At the request of the Environmental Protection Agency, an analysis was conducted to redesignate 

the Air Quality Control Region 012: Grant County, New Mexico SO:! nonattainment area to 

attainment/maintenance status and a maintenance plan was prepared. In February of 2003, a 

redesignation request and maintenance plan for the Grant County nonattainment area were 

submitted to EPA for their review and approval. Both the redesignation request and maintenance 

plan for the Grant County nonattainment area were approved in September of 2003. 

The Atlas Pilot Project, Doiia Ana County, MM 

Acted as project manager for the development of an improved emission inventory of particulate 

matter emissions in DOM Ana County, NM. The Atlas Pilot Project was conducted to assist the 

Environmental Protection Agency in the development of an "Atlas" of environrnenkd issues along the 

border region of the United States and Mexico. The atlas would act as a resource guide that would 

include inventories, maps, and reference material on all sources of environmental pollution ranging 

hm water to solid waste to air quality. The pilot project was the first attempt at developing a piece of 

that resource guide. The Atlas Pilot Project was hded through a grant fkom the EPA. I was 

responsible for all facets of the project including grant writing, budget development, and project 

management. 
STATE OF NEW MEXICO 

ENVIRONNIENTAL IMPROVEMENT BOARD 

IN THE MATTER OF PROPOSED AMENDMENTS 

TO 20.2.99 NMAC - CONFORMITY TO THE STATE 

IMPLEMENTATION PLAN OF TRANSPORTATION 

PLANS, PROGRAMS, AND PROJECTS. EIB 08-15(R) 

WRITTEN TESTIMONY OF GAIL COOKE 

Witness Qualifications: 

Gail Cooke is an Environmental Planner in the Control Strategies Section of the Air Quality 

Bureau. She has worked in the Air Quality Bureau since June 1999. Ms. Cooke holds a 

bachelor degree in Environmental Design fiom Texas A&M University and a master degree in 

Urban and Regional Planning fiom Virginia Tech. 

I. INTRODUCTION 

Madame Chair and Members of the Board, I am here to present the New Mexico Environment 

Department's (NMED) proposed amendments to 20.2.99 New Mexico Administrative Code 

(NMAC) - Conformity to the State Implementation Plan of Transportation Plans, Programs, and 

Projects. NMED Exhibit 2 reflects the Department's proposed amendments in current NMAC 

format. A section-by-section table of proposed amendments is also included as NMED Exhibit 

5. The proposed amendments are shown in standard legislative format: new material is 

underlined, and deleted material stricken or designated as stricken. During my testimony, I will 

refer to this regulation as Part 99. 

A. What is Transportation Conformity? 

The concept of transportation conformity was introduced in the Clean Air Act (CAA) of 1977, 

which included a provision to ensure that transportation projects conform to the State 

Implementation Plan for meeting the air quality standards. Conformity requirements were made 

substantially more rigorous in the CAA Amendments of 1990, and the federal transportation 

conformity regulation, 40 CFR Part 93-Determining Conformity of Federal Actions to State or 

Federal Implementation Plans, which I will refer to as "the conformity rule" fiom now on.' The 

conformity rule was adopted by the U.S. Environmental Protection Agency (EPA) in November 

of 1993. Along with the adoption of the rule, the individual states were also required to develop 

regulations to implement transportation conformity. The purpose of the federal and state 

transportation conformity regulations is to detail the process for transportation agencies to 

demonstrate and ensure emission reductions fiom transportation sources of air pollution. 

There is another type of "confonnity" under the Clean Air Act, known as "general confonnity," but because that is 

not at issue here, "conformity" as used in this testimony always refers to transportation conformity. 

COOKE TESTIMONY - PAGE 1 
Part 99 was adopted by New Mexico in December 1994. Part 99 was later revised to reflect 

changes made by EPA in 1997,2004, and 2007. As discussed in more detail below, EPA made 

additional amendments to the rule in 2008. Today's proposed revisions to Part 99 are responsive 

to those amendments. 

B. When is Transportation Conformity Required? 

Transportation conformity only applies to areas that have violated (are in nonattainrnent with) 

the NAAQS for the six criteria pollutants: carbon monoxide, sulfur dioxide, oxides of nitrogen, 

particulate matter, ozone, and lead. To ensure that transportation activities do not worsen air 

quality in nonattainment areas or interfere with State Implementation Plans (SIPS), which set the 

requirements for meeting EPA standards for air quality, emission reductions are often required 

fiom mobile sources. 

According to the CAA, transportation plans, programs, and projects cannot: 

create new violations of the NAAQS; 

increase the frequency or severity of existing violations of the standards; or 

delay attainment of the standards. 

11. PROPOSED CEIANGES TO PART 99 

The proposed revisions to Part 99 are in response to amendments to the federal conformity rule. 

The EPA has revised the federal rule in the last year. Most of these amendments are necessary to 

make the rule consistent with Clean Air Act section 176(c) as amended by SAFETEA-LU on 

August 10,2005 (Pub. L. 109-59). 

A. SAFETEA-LU 

On August 10,2005, the President signed into law the Safe, Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for Users, or "SAFETEA-LU." SAFETEA-LU builds on 

past federal transportation laws including the Intermodal Surface Transportation Efficiency Act 

of 1991 (ISTEA) and the Transportation Equity Act for the 21St Century (TEA-21). These acts 

shaped the highway program to meet the Nation's changing transportation needs. The purpose of 

SAFETEA-LU is to supply the bds and programmatic framework for investments needed to 

maintain and expand transportation infrastructure. 

Among other things, SAFETEA-LU requires that EPA revise the federal conformity rule as 

necessary to address new statutory provisions. The revisions to the federal conformity rule 

addresses the relevant changes that SAFETEA-LU made to the Clean Air Act (CAA). 

SAFETEA-LU amended the following items under CAA section 176(c): 

Changed the required frequency of transportation conformity determinations fiom three 

years to four years; 

Provided two years to determine conformity after new state implementation plan (SIP) 

motor vehicle emissions budgets are either found adequate, approved or promulgated; 

COOKE TESTIMONY - PAGE 2 
Added a one-year grace period before the consequences of a conformity lapse apply, 

which includes the withholding of federal highway improvement funds; 

Provided an option for reducing the time period addressed by conformity determinations; 

Streamlined requirements for conformity SPs; and 

Provided procedures for areas to use in substituting or adding transportation control 

measures (TCMs) to approved SIPS. 

B. January 24,2008 Conformity Rule Amendments 

The amendments to the federal rule 40 CFR Part 93 -Determining Conformity of Federal Actions 

to State or Federal Implementation Plans were adopted on January 24,2008 to make the rule 

consistent with Clean Air Act section 176(c) as amended by SAFETEA-LU. The rule was 

revised to provide more time for state and local governments to meet conformity requirements, 

to provide a one-year grace period before the consequences of not meeting certain conformity 

requirements apply, allows the option of shortening the timeframe of conformity determinations, 

and streamlines other provisions. The Clean Air Act requires federally supported transportation 

plans, transportation improvement programs, and projects to be consistent with ("conform to") 

the purpose of the state air quality implementation plan. The rule also includes minor 

amendments that are not related to SAFETEA-LU, such as allowing the Department of 

Transportation (DOT) to make categorical hot-spot findings, which are localized pollutant 

concentrations resulting from a new transportation project, for appropriate projects in carbon 

monoxide nonattainment and maintenance areas. 

The following table (Table 1) lists the promulgated amendments to the federal conformity rule 

(Part 93) and the corresponding proposed regulatory amendments to state regulation Part 99. 

Table 1: Proposed Regulatory Amendments to Part 99 

ISSUE ADDRESSED IN 

FEDERAL RULE 

PART 93 

FEDERAL 

REGULATORY 

PART 99 

NEW MEXICO 

REGULATORY 1 

Revised the definitions for Metropolitan planning 

organization (MPO) 

Transportation control measure (TCM) to clarify that 

TCMs as defined for conformity purposes also include 

any TCMs that are incorporated into the SIP through this 

new TCM substitution and addition process. 

- 

- ~ak; rule consistent with SAFETEA-LU 

Revised the fist sentence of the definition for 

SECTION 

Sec. 101 

SECTION 

Sec. 7(AC); 

Sec. 101 

- Make rule consistent with S~EA-LU 

Revised the definitions for Transportation improvement 

Implementation Rule I 1 1 

< 

Sec. 7(AU): 

Removed "sulfur oxides (SOX)" and added in its place 

' 'sulfur dioxide (S02) 

- To make rule consistent with EPA7s PM2.5 

COOKE TESTIMONY - PAGE 3 

Sec. 10 1 Sec. 7(AV) 

Sec. 102(b)(2)(v); 

119 (f)(lO) 

\, 

Sec. 2(C)(5); 

1 3 8(F)(10) 
ISSUE ADDRESSED IN 

FEDERAL RULE 

Removed "for 20 years from the date EPA approves the 

area's request under section 107(d) of the CAA for 

redesignation to attainment" and adding in its place 

"through the last year of a maintenance area's approved 

CAA section 175A(b) maintenance plan' ' . - EPA Revised ths section to ensure that 

conformity would apply in maintenance areas through the 

entire 20 years of their approved Clean Air Act section 

175A@) maintenance plan, unless the applicable 

implementation plan specifies that conformity would 

continue to apply beyond the end of that maintenance 

plan. 

Revised to require that the MPO and DOT determine 

conformity of a transportation plan at least every four 

years. 

- Make rule consistent with SAFETEA-LU 

Revised to require that the MPO and DOT determine 

conformity of a transportation improvement program 

(TIP) at least every four years. - Make rule consistent with SAFETEA-LU 

Revised to require a new transportation plan and TIP 

conformity determination to be made after actions that 

establish a new motor vehicle emissions budget for 

conformity, also known as "triggers." - ~ake rule consistent with SAFETEA-LU 

New provision included to provide the allowances for 

to meet conformity requirements during the lapse 

grace period. 

- Make rule consistent with SAFETEA-LU 

Changed ' 'revision(s) ' ' to ' 'amendment(s),' ' 

- Make rule consistent with the revised planning 

definitions in DOT's February 14,2007, final 

transportation planning regulations (72 FR 7224). 

Removed the reference "23 CFR 450.3 16@) replacing it 

with "23 CFR 450.3 16(a) 

- Make rule consistent with the revised planning 

definitions in DOT's February 14,2007, final 

transportation planning regulations (72 FR 7224). 

Section renamed as "Content of transportation plans and 

timeframe of conformity determination; - Make rule consistent with SAFETEA-LU 

Amended to update the horizon years that apply when an 

area shortens the conformity timeframe. 

- Make rule consistent with SAFETEA-LU 

Include regulatory provisions to provide the rules for 

PART 93 

FEDERAL 

REGULATORY 

SECTION 

Sec. 102(b)(4) 

Sec. 104(b) 

Sec. 104(c) 

Sec. 104(e) 

Sec. 104(f) 

Sec. 105(c) 

Sec. 105(e) 

Sec. 106 

Sec. 106(a) 

PART 99 

NEW MEXICO 

REGULATORY 

SECTION 

Sec. 2(E) 

Sec. 1 12(B); 

I 12(C): 

Sec. 113(C) 

Sec. 115 

Sec. 111(B) 

Sec. 122 

Sec. 124(A) 

Sec. 125 

Sec. 125@) 

COOKE TESTlMONY - PAGE 4 
FEDERAL RULE 

ISSUE ADDRESSED IN 

1 shortening the conformity timefiame - ~ake rule consistent with SAFETEA-LU 

Removed provision of the transportation conformity rule 

that was vacated by the U.S. Court of Appeals for the 

District of Columbia Circuit (Environmental Defense v. 

EPA, et al., D.C. Cir. No. 04-129I) 

1 - This provision allowed 8-hour ozone areas to use 

the interim emissions test(s) for conformity 

determinations instead of 1-hour ozone SIP budgets 

where the interim emissions test(s) was determined to be 

1 more appropriate to meet Clean Air Act requirements. ' The c% vacated this provision and remanded it to EPA. 

Included language to ensure that hot-spot analyses in 

1 isolated rural areas examine a project's air quality impact 

over the timefiame of the long-range statewide 

transportation plan. 

Requires that there be a currently conforming 

] transportation plan and TIP at the time of project 

approval, except during the lapse grace period, when a 

non-exempt project must come fiom the most recent 

conforming transpoitation plan and TIP. - Make rule consistent with SAFETEA-LU 

( Requires that re@onally significant non-Federal projects 

either come fiom the currently conforming transportation 

plan and TIP, or the regional emissions analysis that 

supports such a transportation plan and TIP, except 

during the lapse grace period. 

- Make rule consistent with SAFETEA-LU 

Revised to allow DOT, in consultation with EPA, to 

make categorical hot-spot findings for appropriate 

cases in CO nonattainment and maintenance areas if 

appropriate modeling shows that a type of highway 

or transit project does not cause or contribute to a 

new or worsened local air quality violation of the 

CO standards. 

Revised to require PM2.5 or PMlO hot-spot analyses to 

be completed for ' 'New highway that have a 

significant number of diesel velucles, and expanded 

projects that have a significant increase in the number of 

diesel vehicles." The prior language stated "New or 

expanded highway projects that have a significant 

number of or significant increase in diesel vehicles.'' - Incorporated as a technical clarification to address 

some confusion since the promulgation of the March 10, 

2006 conformity rule (71 FR 12468). 

PART 93 

FEDERAL 

REGULATORY 

SECTION 

Sec. 109(e) 

Sec. 114 

Sec. 121 

PART 99 

NEW MEXICC 

REGLTLATOR' 

SECTION 

Sec. 128(E) 

Sec. 128(L) 

Sec. 133 

Sec. 140(A)(1) 

Sec. 148(A)(3) 

Sec. 148(B)(1) 

COOKE TESTIMONY - PAGE 5 
ISSUE ADDRESSED IN 

FEDERAL RULE 

Hazard elimination program" is now "Projects that 

correct, improve, or eliminate a hazardous location or 

feature; 

Safety improvement program is now Highway Safety 

Improvement Program implementation;" and 

Pavement marking demonstration'' is now Pavement 

marking. 

- EPA is updating these terms to make them 

consistent with the terms in 23 U.S.C. 148, which has 

been amended by SAFETEA-LU 

Revised to update the following terms: 

III. THE PROPOSED REVISIONS IN NEW MEXlCO 

PART 93 

FEDERAL 

REGULATORY 

SECTION 

Sec. 126 

Presently, there is only one nonattainment area under the Department's jurisdiction in New 

Mexico. The nonattainment is located in Southern Doiia Ana County in Anthony, New Mexico. 

Anthony was designated nonattainment by EPA for PM 10 in 1991. Today's proposed revisions 

to Part 99 will not affect the nonattainrnent area in Anthony, NM. This area was designated 

nonattainment for PMI 0 due to high wind events, not emissions from mobile sources. The 

Department's proposed revisions today only apply to mobile sources. 

PART 99 

NEW MEXICO 

REGULATORY 

Although no areas in New Mexico would be currently affected by today's proposed revisions, 

Part 99 will affect any nonattainment areas that are designated in the future. Two such areas are 

Sunland Park, NM and San Juan County, NM. Both areas are currently in violation for the new 

8-hour ozone National Ambient Air Quality Standard. These areas will not be officially 

designated nonattainment until March of 201 0. 

The Division has informed the New Mexico Department of Transportation (NMDOT) on these 

proposed revisions and has solicited comments fiom them. The Division will continue to work 

with NMDOT to ensure that federally funded transportation projects within designated 

nonattainment areas will conform with SP requirements for air quality standards and not 

exacerbate air quality conditions. 

COOKE TESTIMONY - PAGE 6 
TITLE 20 ENVIRONMENTAL PROTECTION 

CHAPTER 2 AIR QUALITY (STATEWIDE) 

PART 99 CONFORMITY TO THE STATE IMPLEMENTATION PLAN OF TRANSPORTATION 

PLANS, PROGRAMS, AND PROJECTS 

20.2.99.1 ISSUING AGENCY: New Mexico Environmental Improvement Board. 

[12/14/94; 11/23/98; 20.2.99.1 NMAC - Rn, 20 NMAC 2.99.100 10/31/02] 

20.2.99.2 SCOPE. Agencies affected by this part are: federal transportation agencies (the federal highway 

administration (FHWA) and the federal transit administration (FTA) of the United States department of 

transportation (US DOT)), and state and local agencies responsible for transportation planning and air quality 

management that are within the geographic jurisdiction of the environmental improvement board (see also 20.2.99.6 

NMAC). 

A. The provisions of this part shall apply in all non-attainment and maintenance areas for 

transportation-related criteria pollutants for which the areais designated non-attainment or has a maintenance plan. 

B. The provisions of this part apply with respect to emissions of the following criteria pollutants: 

ozone, carbon monoxide, nitrogen dioxide, and particles with an aerodynamic diameter less than or equal to a 

nominal 10 micrometers (PM10) and particles with an aerodynamic diameter less than or equal to a nominal 2.5 

micrometers (PM2.5). 

C. . The provisions of this part apply with respect to emissions of the following precursor pollutants in 

nonattainrnent or maintenance areas: 

(1) volatile organic compounds and nitrogen oxides in ozone areas; 

(2) nitrogen oxides in nitrogen dioxide areas; 

(3) volatile organic compounds andfor, nitrogen oxides, in PMlO areas if: 

(a) the EPA region 6 administrator or the department has made a finding (including a finding 

as part of a SIP or a submitted implementation plan revision) that transportation-related emissions of one or both of 

these precursor emissions within the nonattainment area are a significant contributor to the PM10 nonattainment 

problem and has so notified the MPO (or the NMDOT in the absence of an MPO) and US DOT; or 

@) the applicable SIP (or implementation plan submission) establishes an approved (or 

adequate) budget for such emissions as part of the reasonable further progress, attainment or maintenance strategy; 

(4) nitrogen oxides in PM2.5 areas, unless both the EPA regional administrator and the department 

have made a finding that transportation-related emissions of nitrogen oxides within the nonattainment area are not a 

significant contributor to the PM2.5 nonattainment problem and has as notified the MPO (or the NMDOT in the 

absence of an MPO) and US DOT, or the applicable implementation plan (or implementation plan submission) does 

not establish as approved (or adequate) budget for such emissions as part of the reasonable further progress, 

attainment or maintenance strategy: and 

(5) VOC, sulh dioxide (S02) andlor ammonia (NH3) in PM2.5 areas either if the EPA 

regional administrator or the department has made a finding that transportation-related emissions of any of these 

precursors within the nonattainment area are a significant contributor to the PM2.5 nonattinment problem and has so 

notified the MPO (or the NMDOT m the absence of an MPO) and US DOT, or it the applicable implementation plan 

(or implementation plan submission) establishes and approved (or adequate) budget for such emissions as part of the 

reasonable further progress, attainment or maintenance strategy. 

D. The provisions of this part apply to PM2.5 nonattainment and maintenance areas with respect to 

PM2.5 from reentrained road dust if the EPA regional administrator or the department has made finding that reentrained road dust emissions within the area are a significant contributor to the PM2.5 nonattainment problem and 

has so notified the MPO (or the NMDOT in the absence of an MPO) and US DOT, or if the applicable SIP (or 

implementation plan submission) includes re-entrained road dust in the approved (or adequate ) budget as part of the 

reasonable fiuther progress, attainment or maintenance strategy. Re-entrained road dust emissions are produced by 

travel and paved and unpaved roads (including emissions from anti-skid and deicing material(s)). 

E. The provisions of this part apply to maintenance areas . . through the last 

year of a maintenance area's approved CAA section 175Afb) maintenance plan, 

[12/14/94; 11/23/98; 20.2.99.2 NMAC - Rn, 20 NMAC 2.99.101 10/31/02; A, 10/15/05; A, 7/16/07;- 

Proposed Revisions to 20.2.99 NMAC 1 
20.2.99.3 STATUTORY AUTHOm Environmental Improvement Act, Nh4SA 1978, section 74-1- 

8(A)(4) and (7), and Air Quality Control Act, NMSA 1978, sections 74-2-1, et seq., including specifically, section 

74-2-5(A), (B) and (C). Section 74-2-5(B) provides that the Environmental Improvement Board shall adopt 

regulations "to attain and maintain national ambient air quality standards and prevent or abate air pollution ...." 

[12/14/94; 11/23/98; 20.2.99.3 NMAC - Rn, 20 NMAC 2.99.102 10/31/02] 

20.2.99.4 DURATION: Permanent. 

[12/14/94; 11/23/98; 20.2.99.4NMAC - Rn, 20 NMAC 2.99.103 10/31/02] 

20.2.99.5 EFFECTIVE DATE: November 23,1998, except where a later date is cited at the end of a 

section or paragraph. 

[12/14/94; 11/23/98; 20.2.99.5 NMAC - Rn, 20 NMAC 2.99.104 10/31/02] 

me latest effective date of any section in this Part is 10/15/05.] 

20.2.99.6 OBJECTIVE: The purpose of this Part is to implement Section 176(c) of the Clean Air Act 

(CAA), as amended (42 U.S.C. 7401 et seq.), the related requirements of 23 U.S.C. 109Cj), and regulations under 40 

CFR part 51 subpart T and Part 93 subpart A, with respect to the conformity of transportation plans, programs, and 

projects which are developed, funded, or approved by the United States Department of Transportation (US DOT), 

the NMSHTD, metropolitan planning organizations (MPOs) or other recipients of funds under title 23 U.S.C. or the 

Federal Transit Laws (49 U.S.C. Chapter 53) to the New Mexico State Implementation Plan (SIP), as developed 

pursuant to Section 110 and Part D of the CAA. This Part sets forth policy, criteria, and procedures for 

demonstrating and assuring conformity of such activities to the SIP. 

[12/14/94; 11/23/98; 20.2.99.6 NMAC - Rn, 20 NMAC 2.99.105 10/31/02] 

20.2.99.7 DEFINITIONS. Terms used but not defined in this part shall have the meaning given them by 

the CAA titles 23 and 49 U.S.C., US EPA regulations, US DOT regulations, and 20.2.2 NMAC (Definitions), in that 

order of priority. 

A. "I-hour ozone NAAQS" means the 1-hour ozone national ambient air quality standard codified 

at 40 CFR 50.9. 

B. "%hour ozone NAAQS" means the 8-hour ozone national ambient air quality standard codified 

at 40 CFR 50.10. 

C. "Applicable implementation plan" is defined in Section 302(q) of the CAA and means the 

portion (or portions) of the implementation plan, or most recent revision thereof, which has been approved under 

Section 110 (of the CAA), promulgated under Section 110(c), or promulgated or approved pursuant to regulations 

promulgated under Section 301(d) and which implements the relevant requirements of the CAA. 

D. "CAA" means the Clean Air Act, as amended, 42 U.S.C. 7401, et seq. 

E. "Cause or contribute to a new violation" for a project means: 

(1) to cause or contribute to a new violation of a standard in the area substantially affected by the 

project or over a region which would otherwise not be in violation of the standard during the future period in - - question, if the project were not implemented, or 

(2) to contribute to a new violation in a manner that would increase the frequency or severity of a 

new violation of a standard in such area. 

F. "CFR" means the code of federal regulations. 

G. "Clean data" means air quality monitoring data determined by US EPA to meet the e national 

ambient air quality standard. 

H. "Conformity analyses" means regional or localized "hot-spot" computer modeling assessment or 

any other analyses which serve as the basis for the conformity detennination. 

I. "Conformity determination" means the demonstration of consistency with motor vehicle 

emissions budgets for each pollutant and precursor identified in the applicable SIP. The conformity determination is 

the affiiative written documentation declaring conformity with the applicable SIP which is submitted to FHWA 

and FTA for approval with EPA consultation. An affumative conformity determination means conformity to the 

plans purpose of eliminating or reducing the severity and number of violations of the NAAQS and achieving 

expeditious attainment of such standards; and that such activities will not: 

(1) cause or contribute to any new violations of any standard in any area; 

(2) increase the frequency or severity of any existing violation of any standard in any area; or 

Proposed Revisions to 20.2.99 NMAC 
1 (3) delay timely attainment of any standard or any required interim emission reductions or other 

milestones in any area. 

J. "Consultation" means that one party confers with another identified party, provides or makes 

available all relevant information to that party, and, prior to taking any action, considers the views of that party and 

(except with respect to those actions for which only notification is required) responds to written comments in a 

timely, substantive written manner prior to any final decision on such action. Such views and written response shall 

be made part of the record of any decision or action. Specific procedures and processes are described in 20.2.99.1 16 

through 20.2.99.124 NMAC. 

K. "Control strategy implementation plan revision" is the implementation plan which contains 

specific strategies for controlling the emissions of and reducing ambient levels of pollutants in order to satisfy CAA 

rkquirements for demonstrations of reasonable further progress and attainment (including implementation plan 

revisions submitted to satisfy CAA Sections 172(c), 182@)(1), 182(c)(2)(A), 182(c)(2)(B), 187(a)(7), 1 89(a)(l)@), 

189(b)(l)(A) and 189(d); and Sections 192(a) and 192@), for nitrogen dioxide; and any other applicable CAA 

provisions requiring a demonstration of reasonable further progress or attainment). 

L. "Department" means the New Mexico environment department. 

M. "Design concept" means the type of facility identified by the project, e.g., freeway, expressway, 

arterial highway, grade separated highway, reserved right-of-way rail transit, mixed traffic rail transit, exclusive 

busway, etc. 

N. "Design scope" means the design aspects of a facility which will affect the proposed facility's 

impact on regional emissions, usually as they relate to vehicle or person carrying capacity and control, e.g., number 

of lanes or tracks to be constructed or added, length of project, signalization, access control including approximate 

number and location of interchanges, preferential treatment for high-occupancy vehicles, etc. 

0. "Donut areas" are geographic areas outside a metropolitan planning area boundary, but inside the 

boundary of a nonattainment or maintenance area that contains any part of a metropolitan area(s). These areas are 

not isolated rural nonattainment and maintenance areas. 

P. "FHWA" means the federal highway administration of US DOT. 

Q. "FHWNFTA project", for the purpose of this part, is any highway or transit project which is 

proposed to receive funding assistance and approval through the federal-aid highway program or the federal mass 

transit program, or requires federa1 highway administration (FHWA) or federal transit administration (FTA) 

approval for some aspect of the project, such as connection to an interstate highway or deviation from applicable 

design standards on the interstate system. 

R. "Forecast period" with respect to a transportation plan is the period covered by the transportation 

plan pursuant to 23 CFR part 450. 

S. "ETA" means the federal transit administration of US DOT. 

T. "Highway project" is an undertaking to implement or modify a highway facility or highwayrelated program. Such an undertaking consists of all required phases necessary for implementation. For analytical 

purposes, it shall be dehed sufficiently to: 

(1) connect logical termini and be of sufficient length to address environmental matters on a broad 

scope; 

(2) have independent utility or significance, i.e., be usable and be a reasonable expenditure even if no 

additional transportation improvements in the area are made; and 

(3) not restrict consideration of alternatives for other reasonably foreseeable transportation 

improvements. 

U. "Horizon year" is a year for which the transportation plan describes the envisioned transportation 

system in accordance with 20.2.99.125 NMAC. 

V. "Hot-spot analysis" is an estimation of likely future localized CO, PM10, and/or PM2.5 pollutant 

concentrations and a comparison of those concentrations to the national ambient air quality standards. ~ot-spot 

analysis assesses impacts on a scale smaller than the entire nonattainment or maintenance area, including, for 

example, congested roadway intersections and highways or transit terminals, and uses an air quality dispersion 

model to determine the effects of emissions on air quality. 

W. "Increase the frequency or severity" means to cause a location or region to exceed a standard 

more often or to cause a violation at a greater concentration than previously existed and/or would otherwise exist 

during the future period in question, if the project were not implemented. 

X. "Isolated rural nonattainment and maintenance areas" are areas that do not contain or are not 

part of any metropolitan planning area as designated under the transportation planning regulations. Isolated rural 

areas do not have federally required metropolitan transportation plans or TIPS and do not have projects that are part 

Proposed Revisions to 20.2.99 NMAC 3 
of the emissions in such areas are instead included in statewide transportation improvement programs. These are not 

donut areas. 

Y. "Lapse" means that the conformity determination for a transportation plan or TIP has expired, 

and thus there is no currently conforming transportation plan and TIP. 

Z. "Limited maintenance plan" is a maintenance plan that EPA has determined meets EPA's 

limited maintenance plan policy criteria for a given NAAQS and pollutant. To qualify for a limited maintenance 

plan, for example, an area must have a design value that is significantly below a given NAAQS, and it must be 

reasonable to expect that a NAAQS violation will not result hm any level of future motor vehicle emissions 

growth. 

AA. "Maintenance area" means any geographic region of the United States previously designated 

nonattainment pursuant to the CAA Amendments of 1990 and subsequently redesignated to attainment subject to the 

requirement to develop a maintenance plan under Section 175A of the CAA, as amended 

AB. "Maintenance plan" means an implementation plan under Section 175A of the CAA, as 

amended. 

AC. "Metropolitan planning organization (MPO)" 1 . . 

wtb&&p& means the policy board of an organization created as a result of the designation Drocess in 23 

U.S.C. 134(dL 

AD. "Milestone" has the meaning given in CAA Sections 182(g)(l) and 189(c) for serious and above 

ozone nonattainment areas and PMlO nonattainment areas, respectively. For all other nonattainment areas, a 

milestone consists of an emissions level and the date on which that level is to be achieved as required by the 

applicable CAA provision for reasonable further progress towards attainment. 

AE. "Motor vehicle emissions budget" is that portion of the total allowable emissions defhed in the 

submitted or approved control strategy implementation plan revision or maintenance plan for a certain date for the 

purpose of meeting reasonable further progress milestones or demonstrating attainment or maintenance of the 

NAAQS, for any criteria pollutant or its precursors, allocated by the SIP to highway and transit vehicle use and 

emissions. 

AF. "National ambient air quality standards (NAAQS)" are those standards established pursuant to 

Section 109 of the CAA. 

AG. "NEPA" means theNationa1 Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321, et 

seq. AH. "NEPA process completion", for the purposes of this part, with respect to FHWA or FTA, 

means the point at which there is a specific action to make a determination that a project is categorically excluded, to 

make a finding of no significant impact, or to issue a record of decision on a final environmental impact statement 

under NEPA. 

AI. "NMDOT" means the New Mexico department of transportation or its successor agency or 

authority, as represented by the department secretary or his or her designee. 

AJ. "Nonattainment area" means any geographic region of the United States which has been 

designated as nonattainment under Section 107 of the CAA for any pollutant for which a national ambient air quality 

standard exists. 

AK. "Project" means a highway project or transit project. 

AL. "Protective finding" means a determination by US EPA that a submitted control strategy 

implementation plan revision contains adopted control measures or written commitments to adopt enforceable 

control measures that fully satisfy the emissions reductions requirements relevant to the statutory provision for 

which the implementation plan revision was submitted, such as reasonable further progress or attainment. 

AM. "Recipient of funds designated under title 23 U.S.C. or the federal transit laws" means any 

agency at any level of state, county, city, or regional government that routinely receives title 23 U.S.C. or federal 

transit law funds to construct FHWA/FTA projects, operate FHWAIFTA projects or equipment, purchase 

equipment, or undertake other services or operations via contracts or agreements. This definition does not include 

private landowners or developers, or contractors or entities that are only paid for services or products created by 

their own employees. 

AN. "Regionally significant project" means a transportation project (other than an exempt project) 

that is on a facility which serves regional transportation needs (such as access to and from the area outside of the 

region, major activity centers in the region, major planned developments such as new retail malls, sports complexes, 

Proposed Revisions to 20.2.99 NMAC 4 
etc., or transportation terminals, as well as most terminals themselves) and would normally be included in the 

modeling of a metropolitan area's transportation network, including at a minimum: 

(1) all principal arterial highways; and 

(2) all fxed guideway transit facilities that offer an alternative to regional highway travel. 

AO. "Safety margin" means the amount by which the total projected emissions from all sources of a 

given pollutant are less than the total emissions that would satisfy the applicable requirement for reasonable further 

progress, attainment, or maintenance. 

AP. "Standard" means a national ambient air quality standard. 

AQ. "State implementation plan (SIP)" means an applicable implementation plan and the applicable 

portion (or portions) of the New Mexico state implementation plan, or most recent revision thereof, which has been 

approved under Section 110, or promulgated under Section 110(c), or promulgated or approved pursuant to 

regulations promulgated under Section 30l(d) of the CAA and which implements the relevant requirements of the 

CAA (see the definition for "applicable implementation plan"). 

AR. "Title 23 U.S.C." means title 23 of the United States Code. 

AS. "Transit" is mass transportation by bus, rail, or other conveyance which provides general or 

special service to the public on a regular and continuing basis. It does not include school buses or charter or 

sightseeing services. 

AT. "Transit project" is an undertaking to implement or modify a transit facility or transit-related 

program; purchase transit vehicles or equipment; or provide financial assistance for transit operations. It does not 

include actions that are solely within the jurisdiction of local transit agencies, such as changes in routes, schedules, 

or fares, It may consist of several phases. For analytical purposes, it shall be defined inclusively enough to: 

(1) connect logical termini and be of sufficient length to address environmental matters on a broad 

scope; 

(2) have independent utility or independent 'significance, i.e., be a reasonable expenditure even if no 

additional transportation improvements in the area are made; and 

(3) not restrict consideration of alternatives for other reasonably foreseeable transportation 

improvements. 

AU. "Transportation control measure (TCM)" is any measure that is specifically identified and 

committed to in the applicable imvlementation plan W, includincr a substitute or additional TCM that is 

incorporated into the applicable SIP through the process established in CAA section 176fc)(8). that is either one of 

the types listed in Section 108 of the CAA, or any other measure for the purpose of reducing emissions or 

concentrations of air pollutants from transportation sources by reducing vehicle use or changing traffic flow or 

congestion conditions. Notwithstanding the above, vehicle technology-based, fuel-based, and maintenance-based 

measures which control the emissions from vehicles under fixed traffic conditions are not TCMs for the purposes of 

this part. 

AV. "Transportation improvement program (TIP)" means a transportation improvement prom 

developed bv a metropolitan planning orginaization under 

23 -U.S.C. 134(j). 

AW. "Transportation plan" means the official intermodal metropolitan transportation plan that is 

developed through the metropolitan planning process for the metropolitan planning area, developed pursuant to 23 

CFR part 450. 

AX. "Transportation project" is a highway project or a transit project. 

AY. "US EPA" means the United States environmental protection agency 

AZ. "US DOT" means the United States department of transportation. 

BA. "Written commitment" for the purposes of this part means a written commitment that includm a 

description of the action to be taken; a schedule for the completion of the action; a demonstration that funding 

necessary to implement the action has been authorized by the appropriating or authorizing body; and an 

acknowledgment that the commitment is an enforceable obligation under the applicable implementation plan. 

[12/14/94; 11/23/98; 20.2.99.7 NMAC - Rn, 20 NMAC 2.99.107 10/31/02; A, 10/15/05; A, 07/16/07: xxlxxlO81 

20.2.99.8 DOCUMENTS: Documents incorporated and cited in this Part may be viewed at the New 

Mexico Environment Deparbnent, Air Quality Bureau, Harold Runnels Building, 1190 St. Francis Dr., or 2048 

Galisteo St., Santa Fe, NM 87502. 

[12/14/94; 11/23/98; 20.2.99.8 NMAC - Rn, 20 NMAC 2.99.108 10/31/02] 

[Current location is 2048 Galisteo St., Santa Fe, NM 87505.1 

Proposed Revisions to 20.2.99 NMAC 
20.2.99.9 to 20.2.99.108 [RESERVED] 

20.2.99.109 APPLICABILITY 

A. Action applicability. 

(1) Except as provided for in Subsection C of 20.2.99.109 NMAC or Subsection A of 20.2.99.149 

NMAC conformity determinations are required for: 

(a) the adoption, acceptance, approval or support of transportation plans and transportation 

plan amendments developed pursuant to 23 CFR part 450 or 49 CFR part 613 by an MPO (or NMDOT in the 

absence of an MPO) or US DOT; 

@) the adoption, acceptance, approval or support of TIPS and TIP amendments developed 

pursuant to 23 CFR part 450 or 49 CFR part 61 3 by an MPO (or NMDOT in the absence of an MPO) or US DOT; 

and 

(c) the approval, funding, or implementation of FHWALFTA projects. 

(2) Conformity determinations are not required under this part for individual projects which are not 

FHWA/FTA projects. However, 20.2.99.140 NMAC applies to such projects if they are regionally significant. 

B. Geographic and pollutant applicability are set out in 20.2.99.2 NMAC (Scope). 

C. Limitations. In order to receive any FHWA/FTA approval or funding actions, including NEPA 

approvals, for a project phase subject to this subpart, a currently conforming transportation plan and TIP must be in 

place at the time of project approval as described in Subsection A of 20.2.99.133 NMAC, except as provided by 

Subsection B of 20.2.99.133 NMAC. 

D. Grace period for new nonattainment areas. For areas or portions of areas which have been 

continuously designated attainment or not designated for any standard for ozone, CO, PM10, PM2.5 or NO2 since 

1990 and are subsequently redesignated to nonattainment or designated nonattainment for any standard for any of 

these pollutants, the provisions of this subpart shall not apply with respect to that standard for 10 months following 

the effective data of final designation to nonattainment for each standard for such pollutant. 

[12/14194; 11/23/98; 20.2.99.109 NMAC - Rn, 20 NMAC 2.99.109 10131102; A, 10/15/05] 

20.2.99.110 PRIORITY: When assisting or approving any action with air quality related consequences, 

FHWA and FTA shall give priority to the implementation of those transportation portions of a SIP prepared to attain 

and maintain the NAAQS. This priority shall be consistent with statutory requirements for allocation of funds 

among States or other jurisdictions. 

[12/14/94; 11/23/98; 20.2.99.1 10 NMAC - Rn, 20 NMAC 2.99.110 10/31/02] 

20.2.99.111 FREQUENCY OF CONFORMITY DETERMINATIONS: 

A. Conformity determinations and conformity redeterminations for transportation plans, TIPS, and 

FHWAIF-TA projects shall be made according to the requirements of 20.2.99.11 1 NMAC through 20.2.99.1 15 

NMAC and the SIP. 

B. During the twelve (12) month mace period referenced in Sections 20.2.99.1 12.20.2.99.1 13, 

NMAC. and 20.2.99.1 15 NMAC. a~roiect may be found to conform according to the requirements of this 

subsection 120.2.99.1 11 .B NMAC) if: 

(1) The project is included in the currentlv conforming transportation plan and TIP lor rerrional 

emissions analvsis): or 

(2) The project is included in the most recent conforming transportation plan and TIP for regional 

emissions andvsis). 

[12/14/94; 11/23/98; 20.2.99.1 11 NMAC - Rn, 20.NMAC 2.99.1 11 10/31/02; A. XXlxxlOb] 

20.2.99.112 FREQUENCY OF CONF'ORMITY DETERMINATIONS - TRANSPORTATION PLANS. 

A. Each new transportation plan shall be found to conform before the transportation plan is approved 

by the MPO (or NMDOT in the absence of an MPO) and accepted by the US DOT. 

B. All transportation plan r%uisierts amendments shall be found to conform before the transportation 

plan iwkhs amendments are approved by the MPO (or NMDOT in the absence of an MPO) or accepted by the 

US DOT, unless the ixwkk amendment merely adds or deletes exempt projects listed in 20.2.99.151 NMAC. aid . . . . .. . The conformity determination 

shall be based on the transportation plan and thsfedsieR amendment taken as a whole. 

C. The MPO and US DOT shall determine the conformity of the transportation plan (including a new 

Proposed Revisions to 20.2.99 NMAC 6 
regional emission analysis) no less frequently than every W four (3 4J years. If more than b four(3 4J years 

ela~se after US DOT's conformitv determination without the MPO and US DOT determining conformi& of the - r u 

transportation plan, a twelve (12) month grace period will be implemented as described in Subsection B of 

20.2.99.1 11 NMAC. At the end of this twelve (12) month grace period. the existing conformity determination will 

lapse. 

[12/14/94; 11/23/98; 20.2.99.1 12NMAC - RII, 20 NMAC 2.99.1 12 10/31/02; A, 10/15/05; A, xx/xx/O8] 

2020.2.99.113 FREQUENCY OF CONFORMITY DETERMINATIONS - TRANSPORTATION 

IMPROVEMENT PROGRAMS. 

A. A new TIP must be found to conform before the TIP is approved by the MPO (or NMDOT in the 

absence of an MPO) or accepted by the US DOT. 

B. A TIP amendment requires a new conformity determination for the entire TIP before the 

amendment is approved by the ME'O (or NMDOT in the absence of an MPO) or accepted by the US DOT, unless 

the amendment merely adds or deletes exempt projects listed in 20.2.99.149 NMAC and has been made in 

accordance with the notification provisions of 20.2.99.122 NMAC. 

C. The MPO and US DOT shall determine the conformity of the TIP (including a new regional 

emissions analysis) no less frequently than every dwee four (4) years. If more than four (4) vears elapse after US 

DOT's conformity determination without the ME'O and US DOT determining conformity on the TIP, a twelve (12) 

month mace veriod will be implemented as described in Subsection B of 20.2.99.1 11 NMAC. At the end of this 

twelve (12) month grace veriod. w-&e the existing conformity determination will lapse. 

[12/14/94; 11/23/98; 20.2.99.113 NMAC - Rn, 20 NMAC 2.99.1 13 10/31/02; A, 10/15/05; A, xx/xx/08] 

20.2.99.1 14 FREQUENCY OF CONFORMITY DETERMINATIONS - PROJECTS. FHWAIFT'A 

projects must be found to conform before they are adopted, accepted, approved, or funded. Conformity must be 

redetermined for any FHWAETA project if one of the following occurs: 

(A) a significant change in the project's design concept and s4e; 

(B) three (3) years elapse since the most recent major step to advance the project including; 

(1) NEPA process completion; 

(2) start of final design; 

(3) acquisition of a significant portion of the right-of-way; and 

(4) construction (including federal approval of plans, specifications and estimates); or 

(C) initiation of a supplemental environmental document for air quality purposes. 

[12/14/94; 11/23/98; 20.2.99.114 NMAC - Rn, 20NMAC 2.99.114; A, 10/15/05] 

20.2.99.115 FREQUENCY OF CONFORMITY DETERMINATIONS - TRIGGERS FOR 

TRANSPORTATION PLAN AND TIP CONFORMITY DETERMINATIONS. Conformity of existing 

transportation plans and TlPs shall be redetermined within two (2) vears of the following, or 

after a twelve (12) month mace veriod (as described in 20.2.99.1 16 NMAC) the existing conformity determination 

will lapse, and no new project-level conformity determinations may be made until conformity of the transportation 

plan and TIP has been determined by the MPO and US DOT: 

A. the date of the department's initial submission to US EPA of each control strategy implementation 

plan or maintenance plan establishing a motor vehicle emissions budget; 

B. the effective date of US EPA approval of a control strategy implementation plan revision or 

maintenance plan which establishes or revises a motor vehicle emissions budget if that budget has not yet been used 

in a conformity determination prior to approval; and 

C. the effective date of US EPA promulgation of an implementation plan which establishes or revises 

a motor vehicle emissions budget. 

[12/14/94; 11/23/98; 20.2.99.1 15 NMAC - Rn, 20 NMAC 2.99.1 15 10/31/02; A, 10/15/05;~ 

20.2.99.116 CONSULTATION. 

A. 20.2.99.1 16 -NMAC through 20.2.99.124 NMAC provide procedures for the interagency (federal, 

state, and local) consultation process, resolution of conflicts, and public consultation. Public consultation 

procedures will be developed in accordance with the requirements for public involvement in 23 CFR part 450. The 

affected agencies listed in Subsection C of 20.2.99.1 16 NMAC shall undertake a consultation process with each 

other prior to the development of: 1) conformity determinations, 2) major activities listed in 20.2.9.11 7-NMAC 

below; 3) specific major activities listed in 20.2.99.120 NMAC below; and 4) specific routine activities listed in 

Proposed Revisions to 20.2.99 NMAC 7 
20.2.99.121 -NMAC below. This consultation process shall follow the consultation procedures described in 

20.2.99.1 19 NMAC below. 

B. Prior to EPA's approval of this part, any MPO (or NMDOT in the absence of an MPO) and 

NMDOT, before making any conformity determinations, shall provide reasonable opportunity for consultation with 

the department, the local transpo'rtation agency in the county where the nonattainment or maintenance area is 

located, the local air quality agency in the county in which the nonattainment or maintenance area is located, New 

Mexico FHWA division offices, FTA region 6 offices, and EPA region 6, including consultation on the issues 

described in 20.2.99.1 17 NMAC. This opportunity for consultation shall be provided prior to the determination of 

conformity. 

C. Affected agencies. 

(1) Agencies which are affected by this part and which are required to participate in the consultation 

process are: 

(a) the designated MPO for the nonattainment or maintenance area; 

@) the department; 

(c) . . ' NMDOT: 

(d) the local transportation agency for the county or city in which the nonattainment or 

maintenance area is located; 

(e) the local transit agency for the city or county in which the nonattainment or maintenance 

area is located; 

(f) EPA Region 6; 

(g) New Mexico FHWA division offices; 

(h) FTA region 6; 

(i) local air quality agencies; and 

(j) any other organization or resource agency within the state responsible under state law for 

developing, submitting or implementing transportation-related provisions of an implementation plan. 

(2) Agencies which may be affected by this part and which are entitled to participate in the 

interagency consultation process include: 

(a) NMDOT district office for the county in which the nonattainment or maintenance area is 

located; and 

@) the city or county government in the city or county where the nonattainment or 

maintenance area is located. 

D. Policy level points of contact and policy level meetings. 

(1) The policy level points of contact for participating organizations are as follows: 

(a) MPO: executive director or designee; 

@) department: secretary or designee; 

(c) NMDOT: secretary or designee; 

(d) NMDOT district office: district engineer; 

(e) local government: chief administrative officer or designee; 

(f) EPA region 6: regional administrator or designee; 

(g) FHWA NM division office: division administrator or designee; 

(h) JTA region 6: regional administrator or designee; 

(i) other organizations: as directed in writing. 

(2) Policy level meetings shall be those meetings to which the following individuals have been given 

ample notice thereof 

(a) policy level points of contact for all agencies which are required to participate in the 

conformity process; and 

(b) the policy level points of contact for all agencies and organizations which are entitled to 

participate and have submitted a written request to participate in the conformity process. 

[12/14/94; 11/23/98 ; 20.2.99.1 16 NMAC - Rn, 20 Nh4AC 2.99.1 16 10/31/02; A, 10/15/05] 

20.2.99.117 AGENCY ROLES IN CONSULTATION. Specific roles of the agencies participating in the 

interagency consultation process are listed below. Specific responsibilities of the agencies participating in the 

interagency consultation process are listed in 20.2.99.1 18 NMAC. For the purposes of this part, the lead agency for 

all conformity processes and procedures is that agency which is responsible for initiating the consultation process, 

preparing the initial and final drafts of the document or decision, and for assuring the adequacy of the interagency 

consultation process. 

Proposed Revisions to 20.2.99 NMAC 
A. The department shall be the lead agency for the development of: 

(1) applicable control strategy implementation plan revisions for the nonattaihnent or maintenance 

area; 

(2) the list of TCMs to be submitted as part of the SIP; and 

(3) any amendments or revisions thereto. 

B. In the case of areas in which an MPO has been established, the designated MPO for the 

nonattainment or maintenance area shall be the lead agency for: 

(1) the development of the unified planning work program under 23 CFR 450.3 14; 

(2) development of the transportation plan for the nonattainment or maintenance area; 

(3) development of the TIP for the nonattainment or maintenance area; 

(4) any amendments or revisions thereto; 

(5) any determinations of conformity under this part for which that MPO is responsible; 

(6) choosing conformity tests and methodologies for isolated rural nonattainment and maintenance 

areas as required by Subparagraph (c) of Paragraph (2) of Subsection L of 20.2.99.128 NMAC; and 

(7) development of TCMs, in cooperation with the department. 

C. In the case of areas in which an MPO has not been established, Nh4DOT shall be the lead agency 

for: 

(1) the development of the transportation plan for the nonattainment or maintenance area; 

(2) development of the TIP (transportation improvement program) for the nonattainment or 

maintenance area; 

(3) any amendments or revisions thereto; 

(4) any determinations of conformity under this part for which an MPO would be otherwise 

responsible; 

(5) choosing conformity tests and methodologies for isolated rural nonattainment and maintenance 

areas as required by Subparagraph (c) of Paragraph (2) of Subsection L of 20.2.99.128 NMAC; and 

(6) development of TCMs, in cooperation with the department. 

[12/14/94; 11/23/98; 20.2.99.1 17 NMAC - Rn, 20 NMAC 2.99.1 17 10/31/02; A, 10/15/05] 

AGENCY RESPONSIBILITIES IN CONSULTATION. 

The department shall be responsible for developing or providing: 

emissions inventories; 

emissions budgets; 

air quality modeling; 

attainment demonstrations; 

control strategy implementation plan revisions; 

regulatory TCMs; and 

updated motor vehicle emissions factors. 

B. The designated MPO (or, in nonattainment or maintenance areas where an MPO has not been 

established, NMDOT) shall be responsible for: 

(1) developing transportation plans and TIPS; 

(2) developing and evaluating TCM transportation impacts; 

(3) developing transportation and socioeconomic data and planning assumptions and providing such 

data and planning assumptions for use in air quality analysis to determine conformity of transportation plans, TIPS, 

and projects; 

(4) monitoring regionally significant projects; 

(5) developing system- or facility-based or other programmatic (non-regulatory) TCMs; 

(6) providing technical input on emissions budgets; and 

(7) performing transportation modeling, regional emissions analyses and documentation of timely 

implementation of TCMs needed for conformity assessments. 

C. NMDOT shall be responsible for: 

(1) providing technical input on proposed revisions to motor vehicle emissions factors; 

(2) distributing draft and fmal highway or transit project environmental documents to other agencies; 

and 

(3) convening air quality technical review meetings on specific highway or transit plans, programs 

and projects when requested by other agencies or as needed. 

D. FHWA New Mexico offices and FTA region 6 shall be responsible for: 

Proposed Revisions to 20.2.99 NMAC 
(1) assuring timely action on final findings of conformity, after consultation with other agencies as 

provided in 20.2.99.1 16 through 20.2.99.124 NMAC; and 

(2) providing guidance on conformity and the transportation planning process to agencies - - 

participating in the interagency consultation process. 

E. EPA region 6 shall be responsible for providing guidance on conformity criteria and procedures to 

agencies participating in the interagency consultation process. 

[12/14/94; 11/23/98; 20.2.99.118 NMAC - Rn, 20 NMAC 2.99.118 10/31/02; A, lO/l5/05] 

20.2.99.119 GENERAL CONSULTATION PROCEDURES: The following are the responsibilities of lead 

and participating agencies at each stage of the consultation process: 

A. It shall be the affirmative responsibility of the lead agency to initiate the consultation process by: 

(1) Notifying other participants of the plan, program, or project which must undergo the interagency 

consultation process; 

(2) Preparing an initial draft of the document being developed, together with necessary supporting 

information; 

(3) Convening consultation meetings and agendas when the initial draft of the document being 

developed is complete; and 

(4) Appointing the conveners of technical meetings. 

B. It shall be the responsibility of the lead agency to facilitate the interagency consultation process 

by: 

(1) Confening with all other agencies identified under subsection C of 20.2.99.1 16 NMAC who are 

participating in the particular consultation process; 

(2) Providing all appropriate information needed for meaningful input to the participating agencies, 

including timely notification of all policy level and relevant technical meetings; 

(3) Soliciting early and continuing input from participating agencies; 

(4) Scheduling consultation meetings as specified in this Part; 

(5) Conducting the consultation process as described in this section (20.2.99.1 19 NMAC); 

(6) Assuring that all relevant documents and information, including drafts of the document being 

developed and necessary background documents, are supplied to all participants in the consultation process in a 

timely manner; 

(7) Where required, assuring policy-level contact with those agencies; 

(8) Considering the views of each participating agency and (except with respect to those actions for 

which only notification is required) responding to written comments in a timely, substantive written manner prior to 

making any final decision on the document that is the subject of the consultation process; and 

(9) Assuring that such views and written response are made part of the record of any decision or 

action. 

C. Regular consultation on major activities, as defined in 20.2.99.120 NMAC, shall include policy 

level meetings beginning no later than nine (9) months prior to the date a final document is required (or the date on 

which such agency begins its own work on such document, if later) and continuing at regular, scheduled intervals no 

less frequently than quarterly. In addition, technical meetings shall be convened as necessary. Not later than thirty 

(30) days prior to the adoption or approval of the final document or decision, the lead agency shall supply the final 

drafi document, including all relevant information and documents, as appropriate, to the participating agencies. 

D. Regular consultation on routine activities. as defined in 20.2.99.121 Nh4AC. shall include u 

meetings at regular, scheduled intervals no less frequently than semiannually, and shall be on the agenda of at least 

one policy level meeting. In addition, techcal meetings shall be convened as necessary. 

E. The lead agency shall provide each final document for which a consultation process was required 

to be undertaken (including, but not limited to, the relevant portions of SIPS or implementation plan revisions, 

transportation plans, and TIPS, and determinations of conformity), together with all supporting information, as 

appropriate, to each participating agency within fourteen (14) calendar days after adopting or approving such 

document or making such determination. The lead agency may supply a checklist of available supporting 

information, which the participating agencies may use to request all or part of such supporting information, in lieu of 

generally distributing all supporting information. 

F. It shall be the responsibility of each participating agency (those listed in paragraph (1) of 

subsection C of 20.2.99.1 16 NMAC) during the consultation process to: 

(1) Confer with the lead and other participating agencies (those listed in paragraph (1) of subsection 

C of 20.2.99.1 16 NMAC) in the consultation process; 

Proposed Revisions to 20.2.99 NMAC 
(2) Review and comment as appropriate (including comments in writing) on all proposed and final 

drafl documents and decisions within thirty (30) days of receipt; 

(3) Attend consultation and decision meetings; 

(4) Assure policy-level contact with other participants; 

(5) Provide input on any area of substantive expertise or responsibility (including, but not limited to, 

planning assumptions, modeling, information on status of TCM implementation, and interpretation of regulatory or 

other requirements); and 

(6) Provide technical assistance to the lead agency or consultation process in accordance with this 

section when requested. 

G. A meeting that is scheduled or required for another purpose may be used for the purposes of 

consultation if the conformity consultation purpose is specifically identified in the announcement for the meeting 

and all participating agencies are notified of such meeting. 

[12/14/94; 11/23/98; 20.2.99.1 19 NMAC - Rn, 20 NMAC 2.99.119 10/31/02] 

20.2.99.120 CONSULTATION PROCEDURES FOR SPECIFIC MAJOR ACTIVITIES. An interagency 

consultation process among the members of the lead and participating agencies shall be undertaken for the following 

specific major activities in accordance with all the procedures specified in 20.2.1 19 NMAC above. The lead agency 

for each activity shall be as specified, and the participating agencies shall be the agencies specified in Subsection C 

of 20.2.99.116 NMAC above. 

A. Evaluation and choice of each model (or models) and associated methods and assumptions to be 

used in hot-spot analyses and regional emissions analyses, including vehicle miles traveled forecasting. The 

lead agency shall be the MPO (or NMDOT in the absence of an MPO). 

B. Determination of 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 

Gavel), and which projects should be considered to have a significant change in design concept and scopefkom-the 

transportation plan or TIP. The lead agency shall be the MPO (or NMDOT in the absence of an MPO). 

C. Evaluation of whether projects otherwise exempted from meeting the requirements of this part 

(see 20.2.99.149 NMAC) should be treated as non-exempt in cases where potential adverse emissions impacts may 

exist for any reason. The lead agency shall be the MPO (or NMDOT in the absence of an MPO). 

D. Determination, as required by Paragraph (1) of Subsection C of 20.2.99.132 NMAC of whether 

past obstacles to implementation of TCMs which are behind the schedule established in the SIP have been identified 

and are being overcome, and whether state and local agencies wjth influence over approvals or funding for TCMs 

are giving maximum priority to approval or funding for TCMs. Consultation shall also include consideration of 

whether delays in TCM implementation necessitate revisions to the SIP to remove TCMs or substitute TCMs or 

other emission reduction measures. The lead agency shall be the MPO (or NMDOT in the absence of an MPO). 

E. Determination, as required by 20.2.99.140 NMAC, of whether: 

(1) the project is included in the regional emissions analysis supporting the currently confoming 

TIE"s conformity determination, even if the project is not strictly "included" in the TIP for the purposes of MPO 

project selection or endorsement, and 

(2) the project's design concept and scope have changed significantly from those which were included 

in the regional emissions analysis, or in a manner which would significantly impact use of the facility; the lead 

agency shall be the MPO (or NMDOT in the absence of an MPO). 

P. Determination of what forecast of vehicle miles traveled (VMT) to use in establishing or tracking 

emissions budgets, developing transportation plans, TIPS, or making conformity determinations. The lead agency 

shall be the MPO (or NMDOT in the absence of an MPO). 

G. Verification of what forecast of vehicle miles traveled (VMT) to use in developing SIPS. The lead 

agency shall be the air quality bureau of the department. 

H. Consultation, within the context of a memorandum of agreement, on emissions analysis for 

transportation activities which cross the borders of MPOs or nonattainment areas or air basins. The lead agency 

shall be Nh4DOT. 

I. An interagency consultation process shall be undertaken for evaluating events which will trigger 

new conformity determinations in addition to those triggering events established in 20.2.99.1 11 NMAC through 

20.2.99.1 15 NMAC. The lead agency shall be the MPO (or NMDOT in the absence of an MPO). 

J. In the event that the metropolitan planning area does not include the entire nonattainment or 

maintenance area, an interagency consultation process involving the designated MPO for the nonattainment or 

Proposed Revisions to 20.2.99 NMAC 11 
1 maintenance area, NMDOT, local transportation agencies, and the department, shall be undertaken, in the context of 

2 an MOA, for cooperative planning and analysis for purposes of determining conformity of all projects outside the 

3 metropolitan area and within the nonattainment or maintenance area. The lead agency shall be NMDOT. 

4 K. In nonattainment or maintenance areas where more than one MPO is involved, such MPOs must 

5 develop a memorandum of agreement or memorandum of understanding reflecting their consultation. 

6 L. In nonattainment or maintenance areas where the MPO's jurisdiction does not cover the entire 

nonattainment or maintenance area, the MPO and NMDOT must develop a memorandum of agreement or a 

memorandum of understanding reflecting their consultation. 

M. Choosing conformity tests and methodologies for isolated rural nonattainment and maintenance 

areas, as required by Subparagraph (c) of Paragraph (2) of Subsection L of 20.2.99.128 NMAC. The lead agency 

shall be the MPO (or NMDOT in the absence of an MPO). 

[12/14/94; 11/23/98; 20.2.99.120NMAC - Rn, 20Nh4AC 2.99.120 10/31/02; A, 10/15/05] 

20.2.99.121 CONSULTATION PROCEDURES FOR SPECIFIC ROUTINE ACTIVITIES. An 

interagency consultation process among the lead and participating agencies shall be undertaken for the following 

routine activities in accordance with all the procedures specified in 20.2.99.1 19 Nh4AC. The lead agency for each 

activity shall be as specified, and the participating agencies shall be the agencies specified in Subsection C of 

20.2.99.1 16 NMAC above or as specified for the specific activity. Not later than thirty (30) days prior to the 

preparation of the final document or decision, the lead agency shall supply all relevant information and documents, 

as appropriate, to the participating agencies. 

A. Identification, as required by Subsection B of 20.2.99.146 NMAC, of projects located at sites in 

PMlO nonattainment areas which have vehicle and roadway emission and dispersion characteristics which are 

essentially identical to those at sites which have violations verified by monitoring, and therefore require quantitative 

PMlO hot-spot analysis. The lead agency shall be either the MPO or NMDOT, in cooperation with the department. 

B. Assumption of the location and design concept and scope of projects which are disclosed to the 

MPO, as required by Subsection D of 20.2.99.121 Nh4AC, but whose sponsors have not yet decided these features 

in sufficient detail to perform the regional emissions analysis according to the requirements of 20.2.99.141 NMAC 

through 20.2.99.147 NMAC. The lead agency shall be either the MPO or NMDOT. Participating agencies shaU 

include recipients of funds designated under title 23 U.S.C. or the federal transit laws. 

C. The design, schedule, and funding of research and data collection efforts; and regional 

transportation model development by the MPO (e.g., household/travel transportation surveys). The lead agency 

shall be either the NMDOT or the MPO, as applicable. Participating agencies shall be the MPO, the department, 

and the NMDOT. 

D. Regionally Significant Non-FHWARA Projects. 

(1) Assurance that plans for construction of regionally significant projects which are not FHWAlFTA 

projects (including projects for which alternative locations, design concept and scope, or the no-build option are still 

being considered), including all those sponsored by recipients of funds designated under title 23 U.S.C. or the 

federal transit laws, are disclosed to the MPO on a regular basis, and to assure that any changes to those plans are 

immediately disclosed. The lead agency for this process shall be the agency which is implementing the project. 

Participating agencies shall be the MPO, the department, NMDOT, local transportation and transit agencies for the 

city or county in which the nonattainment or maintenance area is located, and recipients of funds designated under 

title 23 U.S.C. or the federal transit laws. 

(2) The sponsor of any such regionally significant project, and any agency that becomes aware of any 

such project through applications for approval, permitting or funding or otherwise, shall disclose such project to the 

designated MPO for the nonattainment or maintenance area and NMDOT in a timely manner. Such disclosure shall 

be made not later than the fist occasion on which any of the following actions is sought: 

(a) any policy board action necessary for the project to proceed; 

@) the issuance of administrative permits for the facility or for construction of the facility; 

(c) the execution of a contract to design or construct the facility; 

(d) the execution of any indebtedness for the facility; 

(e) any final action of a board, commission or administrator authorizing or directing employees 

to proceed with design, permitting or construction of the project; or 

(f) the execution of any contract to design or construct; or any approval needed for any facility 

that is dependent on the completion of regionally significant project. 

(3) In the case of any such regionally significant project that has not been disclosed in a timely 

manner to the designated MPO for the nonattainment or maintenance area, NMDOT, and other interested agencies 

Proposed Revisions to 20.2.99 NMGC 12 
participating in the consultation process, such regionally significant project and all other regionally significant 

projects of that sponsor shall be deemed to be not included in the regional emissions analysis supporting the 

currently conforming TIP'S conformity determination and to be not consistent with the motor vehicle emissions 

budget in the SIP, for the purposes of 20.2.99.140 NMAC. In the case of repeated failures to disclose regionally 

significant projects by an agency that becomes aware of any such project through applications for approval, 

permitting or funding, all other regionally significant projects within the jurisdiction of such agency shall be deemed 

to be not included in the regional emissions analysis supporting the currently conforming TIP'S conformity 

determination and to be not consistent with the motor vehicle emissions budget in the SIP, for the purposes of 

20.2.99.140 NMAC. 

(4) For the purposes of this section (20.2.99.121 NMAC) and 20.2.99.140 NMAC, the phrase "adopt 

or approve of a regionally significant project" means the first time any action necessary to authorizing-a project 

occurs, such as any policy board action necessary for the project to proceed, the issuance of administrative permits 

for the facility or for construction of the facility, the execution of a contract to construct the facility, any final action 

of a board, commission or administrator authorizing or directing employees to proceed with construction of the 

project, or any written decision or authorization from the MPO that the project may be adopted or approved. 

[12/14/94; 11/23/98; 20.2.99.121 NMAC - Rn, 20 NMAC 2.99.121 10/31/02; A, 10/15/05] 

20.2.99.122 NOTIFICATION PROCEDURES FOR ROUTINE ACTIVITIES. Notification of affected 

agencies (including those listed in Paragraph (1) of Subsection C of 20.2.99.1 16 NMAc) of transportation plan or 

TIP revisleRfer amendments which merely add or delete exempt projects listed in 20.2.99.149 NMAC, shall be the 

affiiative responsibility of NMDOT andlor the MPO. Such notification shall be provided not later than thirty (30) 

days prior to the preparation of the fmal draft of the document or decision. This process shall include: 

A. notification of the affected agencies (including those listed in Paragraph (1) of Subsection C of 

20.2.99.1 16 NMAC) early in the process of decision on the final document; and 

B. supplying all relevant documents and information to the affected agencies (including those listed 

in Paragraph (1) of Subsection C of 20.2.99.1 16 NMAC). 

[12/14/94; 11/23/98; 20.2.99.122 NMAC - Rn, 20 NMAC 2.99.122 10/31/02; A, 10/15/05; A, xx/xx/08] 

20.2.99.123 CONFLICT RESOLUTION AND APPEALS TO THE GOVERNOR 

A. Any conflict among state agencies or between state agencies and an h4PO shall be escalated to the 

governor if the conflict cannot be resolved by the heads of the involved agencies. Prior to such escalation, such 

agencies shall make every effort to resolve any differences, including personal meetings between the heads of such 

agencies or their policy-level representatives, to the extent possible. 

B. The department has fourteen (14) calendar days to appeal a determination of conformity (or other 

policy decision under this part) to the governor after NMDOT or MPO has notified the department of the resolution 

of all comments on such determination of conformity or policy decision. Such fourteen-day period shall commence 

when the h4PO or NMDOT has confirmed receipt by the secretary of the department of the resolution of the 

comments of the department. If the department appeals to the governor, the final conformity determination must 

have the concurrence of the governor. The department must provide notice of any appeal under this Subsection to 

the MPO and NMDOT. If the department does not appeal to the governor within fourteen (14) days, the MPO or 

NMDOT may proceed with the final conformity determination. 

C. In the case of any comments with regard to fmdings of fiscal constraint under 20.2.99.127 NMAC 

or the air quality effects of any determination of conformity, NMDOT has fourteen (14) calendar days to appeal a 

determination of conformity (or other policy decision under this part) to the governor after the MPO has notified the 

department or NMDOT of the resolution of all comments on such determination of conformity or policy decision. 

Such fourteen-day period shall commence when the MPO has confirmed receipt by the secretary of the department 

or NMDOT of the resolution of the comments of NMDOT. If NMDOT appeals to the governor, the final 

conformity determination must have the concurrence of the governor. MOT must provide notice of any appeal 

under this subsection to the h4PO and the department. IfNMDOT does not appeal to the governor within fourteen 

days, the MPO may proceed with the final conformity determination. 

D. The governor may delegate the role of hearing any such appeal under this Subsection and of 

deciding whether to concur in the conformity determination to another official or agency within the state, but not to 

the head or staff of the department or any local air quality agency, NMDOT, a state transportation commission or 

board, any agency that has responsibility for one of these functions, or an h4PO. 

[12/14/94; 11/23/98; 20.2.99.123 NMAC - Rn, 20 NMAC 2.99.123 10/31/02; A, 10/15/05] 

Proposed Revisions to 20.2.99 NMAC 
20.2.99.124 PUBLIC CONSULTATION PROCEDURES: 

A. Affected agencies making conformity determinations on transportation plans, programs, and 

projects shall establish a proactive public involvement process which provides opportunity for public review and 

comment by, at a minimum providing reasonable public access to technical and policy information considered by 

the agency at the beginning of the public comment period, and prior to taking formal action on a conformity 

determination for all transportation plans and TIPS, and projects, consistent with the requirements of 23 CFR part 

450, including sections 450.316 @#I+@ 450.322(c), and 450.324(c) as in effect on the date of adoption of this 

Part. Any charges imposed for public inspection and copying should be consistent with the fee schedule contained 

in 49 OR 7.43. In addition, any such agency must specifically address in writing all public comments which allege 

that known plans for a regionally significant project which is not receiving FHWA or FTA funding or approval have 

not been properly reflected in the emissions analysis supporting a proposed conformity finding for a transportation ' 

plan or TIP. Any such agency shall also provide opportunity for public involvement in conformity determinations 

for projects to the extent otherwise required by law (e.g. NEPA). 

B. The opportunity for public involvement provided under this section (20.2.99.124 NMAC) shall 

include access to information, emissions data, analyses, models and modeling assumptions used to perform a 

conformity determination, and the obligation of any such agency to consider and respond in writing to significant 

comments. 

C. No transportation plan, TIP, or project may be found to conform unless the determination of 

conformity has been subject to a public involvement process in accordance with this section, without regard to 

whether the US DOT has certified any process under 23 CFR part 450. 

[12/14/94; 1 1/23/98; 09/08/99; 20.2.99.124 NMAC - Rn, 20 NMAC 2.99.124 1013 1/02; A, 07/16/07: A, xx/xx/081 

20.2.99.125 CONTENT OF TRANSPORTATION PLANS AND TIMEFFUMJCS OF CONFORMITY 

DETERMINATIONS. 

A. Transportation plans adopted after January 1, 1997, in serious, severe, or extreme ozone 

nonattainment areas and in serious carbon monoxide nonattainment areas. If the metropolitan planning area contains 

an urbanized area population greater than two hundred thousand (200,000), the transportation plan must specifically 

describe the transportation system envisioned for certain future years which shall be called horizon years. 

(1) The agency or organization developing the transportation plan, after consultation in accordance 

with 20.2.99.1 16 NMAC through 20.2.99.124 NMAC, may choose any years to be horizon years, subject to the 

following restrictions: 

(a) horizon years may be no more than ten (1 0) years apart. 

(b) the first horizon year may be no more than ten (10) years from the base year used to 

validate the transportation demand planning model. 

(c) 4 the attainment year is must be a horizon year if it is in the +mqmwMe timeframe of 

thetransportation plfi and conformitv determination. 

(d) the last- year of the transportation plan's forecast period shall be&e-k& a horizon 

year& 

(el if the timeframe of the confonnitv determination has been shortened under Subsection D of 

this section (20.2.99.125 NMACI. the last year of the timeframe of the wnformitv determination must be a horizon 

(2) For these horizon years: 

(a) the transportation plan shall quantify and document the demographic and employment 

factors influencing expected transportation demand, including land use forecasts, in accordance with implementation 

plan provisions and 20.2.99.116 NMAC through 20.2.99.124 NMAC; 

@) the highway and transit system shall be described in terms of the regionally significant 

additions or modifications to the existing transportation network which the transportation plan envisions to be 

operational in the horizon years; additions and modifications to the highway network shall be sufficiently identified 

to indicate intersections with existing regionally significant facilities, and to determine their effect on route options 

between transportation analysis zones; each added or modified highway segment shall also be sufficiently identified 

in terms of its design concept and design scope to allow modeling of travel times under various traffic volumes, 

consistent with the modeling methods for area-wide transportation analysis in use by the MPO; transit facilities, 

equipment, and services envisioned for the future shall be identified in terms of design concept, design scope, and 

operating policies sufficiently to allow modeling of their transit ridership; the description of additions and 

modifications to the transportation network shall also be sufficiently specific to show that there is a reasonable 

relationship between expected land use and the envisioned transportation system; and 

Proposed Revisions to 20.2.99 NMAC 
(c) other future transportation policies, requirements, services, and activities, including 

intermodal activities, shall be described. 

B. Two-year grace period for transportation plan requirements in certain ozone and CO areas. The 

requirements of Subsection A of 20.2.99.125 NMAC applies to such areas or portions of such areas that have 

previously not been required to meet these requirements for any existing NAAQS two years from the following: 

(1) the effective date of EPA's reclassification of an ozone or CO nonattainment area that has greater 

than 200,000 to serious or above; 

(2) the official notice by the census bureau that determines the urbanized area population of a serious 

or above ozone or CO nonattainment area to be greater that 200,000; or 

(3) the effective date of EPA's action that classifies a newly designated ozone or CO nonattainment 

area that has an urbanized area population greater than 200,000 as serious or above. 

C. Transportation plans for other areas. Transportation plans for other areas must meet the 

requirements of Subsection A of 20.2.99.125 NMAC at least to the extent it has been the previous practice of the 

MPO to prepare plans which meet those requirements. Otherwise, transportation plans must describe the 

transportation system envisioned for the future specifically enough to allow determination of conformity according 

to the criteria and procedures of 20.2.99.128 NMAC through 20.2.99.138 NMAC. 

D. Timeframe of confodtv determination. 

(1) Unless an election is made under this subsection (20.2.99.125.D NMAC), the timeframe of the 

conformitvtransportatofon plan's forecast period. 

(2) For areas that do not have an adequate or avproved CAA section 175Afi) maintenance plans, the 

comments. 

(a) the shortened timeframe of the conformitv determination shdl extend at least to the latest of 

the following years: 

{i) the tenth vear of the transportation plan: 

(ii) the latest vear for which an adequate or approved motor vehicle emissions budget(s) 

is established in the submitted or applicable implementation plan: or 

(iii) the vear after the completion date of a regionally simificant vroiect if the proiect is 

included in the TIP or proiect requires approval before the subsequent conformitv determination. 

mr 

informational purposes only) for the last year of the transportation plan and for any vear shown to exceed motor 

vehicle emissions budgets in a prior reeional emissions analysis. if such a vear extends bevond the timeframe of the 

conformity determination. 

(3) For areas that have an adeauate or approved CAA section 175Afi) maintenance plan, the MPO 

may elect to shorten the timeframe of the conformitv determination to extend through the last year of such 

maintenance plan after consultation with state and local air qualitv agencies. solicitation of comments, and 

consideration of such comments. 

(4). Any election made by an MPO under Paragmhs (2) and (3) of 20.2.99.125.DNMAC shall 

continue in effect until the MPO elects otherwise, after consultation with state and local air quality agencies, 

solicitation of public comments, and consideration of such comments. 

?3E. Savings. The requirements of this section (20.2.99.125 NMAC) supplement other requirements of 

applicable law or regulation governing the format or content of transportation plans. 

[12/14/94; 11/23/98; 20.2.99.125 NMAC - Rn, 20 NMAC 2.99.125 10/31/02; A, 10/15/05; A, xx/xx/O81 

20.2.99.126 RELATIONSHIPOP TRANSPORTATION PLAN AND TIP CONFORMITY TO THE 

NEPA PROCESS: The degree of specificity required in the transportation plan and the specific travel network 

assumed for air quality modeling do not preclude the consideration of alternatives in the NEPA process or other 

project development studies. Should the NEPA process result in a project with design concept and scope 

significantly different from that in the transportation plan or TIP, the project must meet the criteria in 20.2.99.128 

NMAC through 20.2.99.138 NMAC for projects not from a TIP before NEPA process completion. 

[12/14/94; 11/23/98; 20.2.99.126 NMAC - Rn, 20 NMAC 2.99.126 10/31/02] 

20.2.99.127 FISCAL CONSTRAINTS FOR TRANSPORTATION PLANS AND TIPS: Transportation 

plans and TIPS must be fiscally constrained consistent with US DOT'S metropolitan planning regulations at 23 CFR 

Proposed Revisions to 20.2.99 NMAC 15 
Part 450 in order to be found in conformity. The determination that a transportation plan or TIP is fiscally 

constrained shall be subject to consultation in accordance with 20.2.99.1 16 NMAC through 20.2.99.124 NMAC. 

[12/14/94; 11/23/98; 20.2.99.127 NMAC - Rn, 20 NMAC 2.99.127 10/31/02] 

20.2.99.128 CRITERIA AND PROCEDURES FOR DETERMINING CONFORMITY OF 

TRANSPORTATION PLANS, PROGRAMS, AND PROJECTS - GENERAL. 

A. In order for each transportation plan, program, and FHWAFTA project to be found to conform 

the MPO and US DOT must demonstrate that the applicable criteria and procedures in this part are satisfied and the 

MPO and US DOT must comply with all applicable conformity requirements of implementation plans and of court 

orders for the area which pertain specifically to conformity. The criteria for making conformity determinations 

differ based on the action under review (transportation plans, TIPS, and FHWA/FTA projects or state projects), the 

relevant pollutant(s), and the status of the implementation plan. 

B. The following table (Table 1) indicates the criteria and procedures in 20.2.99.129 NMAC through 

20.2.99.138 NMAC which apply for transportation plans, TIPS, and FHWAFTA projects. Subsections C through I 

of this section (20.2.99.128 NMAC) explain when the budget, interim emission, and hot spot tests are required for 

each pollutant and NAAQS. Subsection J of this section (20.2.99.128 NMAC) addresses conformity requirements 

for areas with approved or adequate limited maintenance plans. Subsection K of this section (20.2.99.128 NMAC) 

addresses nonattainment maintenance areas which EPA has determined have insignificant motor vehicle emissions. 

Subsection L of this section (20.2.99.128 NMAC) addresses isolated ruraI nonattainment and maintenance areas. 

Table 1 follows. Table 1. Conformity Criteria 

(1) All actions at all times 

(a) 20.2.99.129 NMAC. Latest planning assumptions 

(b) 20.2.99.130 NMAC. Latest emissions model 

(c) 20.2.99.13 1 NMAC. Consultation 

(2) Transportation Plan 

(a) Subsection B of 20.2.99.132 NMAC. TCMs 

(b) 20.2.99.137 NMAC and/or 20.2.99.138 NMAC. Emissions budget and/or interim 

emissions 

(3) TIP 

(a) Subsection C of 20.2.99.132 NMAC. TCMs 

@) 20.2.99.137 NMAC and/or 20.2.99.138 WC. Emissions budget and /or interim 

emissions 

(4) Project (From a conforming plan and TIP) 

(a) 20.2.99.133 NMAC. Currently conforming plan and TIP 

@) 20.2.99.134 NMAC. Project from a conforming plan and TIP 

(c) 20.2.99.135 NMAC. CO, PM10, and PM2.5 hot spots 

(d) 20.2.99.136 NMAC. PMlO and PM2.5 control measures 

(5) Project (Not from a conforming plan and TIP) 

(a) Subsection D of 20.2.99.132 NMAC. TCMs 

@) 20.2.99.133 NMAC. Currently conforming plan and TIP 

(c) 20.2.99.135 NMAC. CO, PM10, and PM2.5 hot spots 

(d) 20.2.99.136 NMAC. PMlO and PM2.5 control measures 

(e) 20.2.99.137 NMAC andor 20.2.99.138 NMAC. Emissions budget andlor interim 

emissions. 

C. 1-hour ozone nonattainment and maintenance areas. This Subsection (Subsection C of Section 

20.2.99.128 NMAC) applies when an area is nonattainment or maintenance for the 1-hour ozone NAAQS (i.e., until 

the effective date of any revocation of the 1-bour ozone NAAQS for an area). In addition to the criteria listed in 

Table 1 in Subsection B of this section (20.2.99.128 NMAC) that are required to be satisfied at all times, in such 

ozone nonattainmeni and maintenance areas conformity determinations must include a demonstration that the budget 

andor interim emission tests are satisfied as described in the following. 

(1) In all 1-hour ozone nonattainment and maintenance areas the budget test must be satisfied as 

required by 20.2.99.137 NMAC for conformity determinations made on or after: 

(a) the effective data EPA's finding that a motor vehicle emissions budget in a submitted 

control strategy implementaaon plan revision or maintenance plan for the 1-hour ozone NAAQS is adequate for 

transportation conformity purposes; 

(b) the publication data of EPA's approval of such a budget in the federal register; or 

Proposed Revisions to 20.2.99 NMAC 16 
(c) the effective stateof EPA's approval of such a budget in the federal register, if such 

approval is completed through direct final rulemaking. 

(2) In ozone nonattainment areas that are required to submit a control strategy implementation plan 

revision for the 1-hour ozone NAAQS (usually moderate and above areas), the interim emissions tests must be 

satisfied as required by 20.2.99.138 NMAC for confonnity determinations made when there is no approved motor 

vehicle emissibns budget form an applicable implementation plan for the I-hour ozone NAAQS and no adequate 

motor vehicle emissions budget form a submitted control strategy implementation plan revision or maintenance plan 

for the 1-hour ozone NAAQS. 

(3) An ozone nonattainment area must satisfy the interim emissions test for NOx, as required by 

20.2.99.138 NMAC, if the implementation plan or plan submission that is applicable for the purposes of conformity 

determinations is a fifteen percent (15%) plan or phase I attainment demonstration that does not include a motor 

vehicle emissions budget for NOx. The implementation plan for the 1-hour ozone NAAQS will be considered to 

establish a motor vehicle emissions budget for NOx if the implementation plan or plan submission contains an 

explicit NOx motor vehicle emissions budget that is intended to act as a ceiling on future NOx emissions, and the 

NOx motor vehicle emissions budget is a net reduction from NOx emissions levels in 1990. 

(4) Ozone nonattainment areas that have not submitted a maintenance plan and that are not required to 

submit a control strategy implementation plan revision for the 1-hour NAAQS (usually marginal and below areas) 

must satisfy one of the following requirements: 

(a) the interim emissions tests required by 20.2.99.138 NMAC; or 

@) the department shall submit to US EPA an implementation plan revision for the 1-hour 

ozone NAAQS that contains motor vehicle emissions budget(s) and a reasonable further progress or an attainment 

demonstration, and the budget test required by 20.2.99.137 NMAC must be satisfied using the adequate or approved 

motor vehicle emissions budget(s) (as described in Paragraph (1) of Subsection C of 20.2.99.128 NMAC). 

(5) Notwithstanding Paragraphs (1) and (2) of Subsection C of 20.2.99.128 NMAC, moderate and 

above ozone nonattainment areas with three years of clean data for the 1 -hour ozone NAAQS that have not 

submitted a maintenance plan and that US EPA has determined are not subject to the Clean Air Act reasonable 

further progress and attainment demonstration requirements for the 1-hour NAAQS must satisfy one of the 

following requirements: 

(a) the interim emissions tests as required by 20.2.99.138 NMAC; 

@) the budget test as required by 20.2.99.137 NMAC, using the adequate or approved motor 

vehicle emissions budgets in the submitted or applicable control strategy implementation plan for the 1-hour ozone 

NAAQS (subject to the timing requirements of Paragraph (1) of Subsection C of 20.2.99.128 NMAC); or 

(c) the budget test as required by 20.2.99.137 NMAC, using the motor vehicle emissions of 

ozone precursors in the most recent year of clean data as motor vehicle emissions budgets, if such budgets are 

established by the US EPA rulemaking that determines that the area has clean data -. D. &hour ozone NAAQS nonattainment and maintenance areas without motor vehicle emissions 

budgets for the 1-hour ozone NAAQS for any potion of the 8-hour nonattainment area. This Subsection 

(Subsection D of Section 20.2.99.128 NMAC) applies to areas that were never designated nonattainment for the 1- 

hour ozone NAAQS but that never submitted a control strategy SIP or maintenance plan with approved or adequate 

motor vehicle emissions budgets. This Subsection (Subsection D of Section 20.2.99.128 NMAC) applies one (1) 

year after the effective date of EPA's nonattainment designation for the 8-hour ozone NAAQS for an area, according 

to Subsection D of 20.2.99.109 NMAC. Ln the addition to the criteria listed in Table 1 in Subsection B of 

20.2.99.128 NMAC that are required to be satisfied at all times, in such 8-hour ozone nonattainment and 

maintenance areas conformity determinations much include a demonstration that the budget andlor interim 

emissions tests are satisfied as described in the following. 

(1) In such 8-hour ozone nonattainment and maintenance areas the budget test much be satisfied as 

required by Section 20.2.99.137 NMAC for conformity determinations made on or after; 

(a) the effective date of EPA's frnding that a motor vehicle emissions budget in a submitted 

control strategy implementation plan revision or maintenance plan for the 8-hour ozone NAAQS is adequate for 

transportation confonnity purposes; 

(b) the publication date of EPA's approval of such a budget in the federal register; or 

(c) the effective date of EPA's approval of such a budget in the federal register, if such 

approval is completed through direct final rulemaking. 

(2) In ozone nonattainment areas that are required to submit a control strategy implementation plan 

revision for the 8-hour ozone NAAQS (usually moderate and above and certain Clean Air Act, part D subpart 1 

areas), the interim emissions tests must by satisfied as required by Section 20.2.99.138 NMAC for conformity 

Proposed Revisions to 20.2.99 NhWC 17 
determinations made when there is no approved motor vehicle emissions budget from an applicabie implementation 

plan for 8-hour ozone NAAQS and no adequate motor vehicle emissions budget from a submitted control strategy 

implementation plan revision or maintenance plan for the 8-hour NAAQS. 

(3) Such an 8-hour ozone nonattainment area must satisfy the interim emissions test for NOx, as 

required by Section 20.2.99.138 NMAC, if the implementation plan or plan submission that is applicable for the 

purposes of conformity determination is a fifteen percent (1 5%) plan or other control strategy SIP that addresses 

reasonable further progress that does not include a motor vehicle emissions budget for NOx. The implementation 

plan for the 8-hour ozone NAAQS will be considered to establish a motor vehicle emissions budget for NOx if the 

implementation plan or plan submission contains an explicit NOx motor vehicle emissions budget that is intended to 

act as a ceiling on future NOx emissions, and the NOxmotor vehicle emissions budget is a net reduction from NOx 

emissions levels in 2002. 

(4) Ozone nonattainment areas that have not submitted a maintenance plan and that are not required 

to submit a control strategy implementation plan revision for the 8-hour ozone NAAQS (usually marginal and 

certain Clean Air Act, part D, subpart 1 areas) must satisfy one of the following requirements: 

(a) the interim emissions tests required by Section 20.2.99.138 NMAC; or 

(b) the department shall submit to EPA an implementation plan revision for the 8-hour ozone 

NAAQS that contains motor vehicle emissions budget(s) and a reasonable further progress or attainment 

demonstration, and the budget test required by Section 20.2.99.1 37 NMAC must be satisfied using the adequate or 

approved motor vehicle emissions budget(s) (as described in Paragraph (1) of Subsection D of 20.2.99.128 NMAC). 

(5) Notwithstanding Paragraphs (1) and (2) of Subsection D of 20.2.99.128 NMAC, ozone 

nonattainment areas with three (3) years of clean data for the 8-hour ozone NAAQS that have not submitted 

maintenance plan and that EPA has determined are not subject to the Clean Air Act reasonable further progress and 

attainment demonstration requirements for the 9-hour ozone NAAQS must satisfy one of the following 

requirements: 

(a) the interim emissions tests as required by Section 20.2.99.138 NMAC; 

(b) the budget test as required by Section 20.2.99.137 NMAC, using the adequate or approved 

motor vehicle emissions budgets in the submitted or applicable control strategy implementation plan for the 8-how 

ozone NAAQS (subject to the timing requirements of Paragraph (1) of Subsection D of 20.2.99.128 NMAC; or 

(c) the budget test as required by Section 20.2.137 NMAC, using the motor vehicle emissions 

of ozone precursors in the most recent year of clean data as motor vehicle emissions budgets, if such budgets are 

established by the EPA rulemaking that determines that the area has clean data for the 8-hour ozone NAAQS. 

E. 8-hour ozone NAAQS nonattainment and maintenance areas with motor vehicle emissions 

budgets for the I-hour ozone NAAQS that cover all or a portion of the 8-hour nonattainrnent area. This provision 

applies one (1) year after the effective date of EPA's nonattainment designation for the 8-hour ozone NAAQS for an 

area, according to Subsection D of Section 2.20.99.109 NMAC. In addition to the criteria listing in Table 1 in 

Subsection B of this section (2.20.2.128 NMAC) that are required to be satisfied at all times, in such 8-how ozone 

nonattainment and maintenance areas conformity determinations must include a demonstration that the budget 

andlor interim emissions tests are satisfied as described in the following. 

(1) In such 8-hour ozone nonattainment and maintenance areas the budget test must be satisfied as 

required by Section 20.2.99.137 NMAC for conformity determinations made on or after: 

(a) the effective date of EPA's fmdimg that a motor vehicle emissions budget in a submitted 

control strategy implementation plan revision or maintenance plan for the &hour ozone NAAQS is adequate for 

transportation conformity purposes; 

(b) the publication date of EPA's approval of such a budget in the federal register; or 

(c) the effective date of EPA's approval of such a budget in the federal register, is such 

approval is completed through direct final rulemaking. 

(2) Prior to Paragraph (1) . . - subsection (20.2.99.1282 Nh4AC) applying, the 

following test(s) must be satisfied 

(a) If the 8-hour ozone nonattainment area covers the same geographic area as the I-hour 

ozone nonattainment or maintenance area(s) , the budget test as required by Section 20.2.99.137 Nh4AC using the 

approved or adequate motor vehicle emissions budgets in the 1-hour ozone applicable implementation plan or 

implementation plan submission. 

(b) If the 8-hour ozone nonattainment area covers a smaller geographic area within the 1-hour 

ozone nonattainment or maintenance area(s), the budget test as required by Section 20.2.99.137 NMAC for either 

the 8-how nonattainment area using corresponding portion(s) of the approved or adequate motor vehicle emissions 

Proposed Revisions to 20.2.99 NMAC 18 
budgets in the l-hour ozone applicable implementation plan or implementation plan submission where such 

portion(s) can reasonably be identified through the interagency consultation process required by Section 20.2.99.1 16 

NMAC ; or the l-hour nonattainment area using the approved or adequate motor vehicle emissions budgets in the 1- 

hour ozone applicable implementation plan or implementation plan submission. If additional emission reductions 

are necessary to meet the budget test for the 8-hour ozone NAAQS in such cases, these emissions reductions must 

come fiom within the 8-hour nonattainrnent area. 

(c) If the 8-hour ozone nonattainment area covers a larger geographic area and encompasses 

the entire l-hour ozone nonattainment or maintenance area(s) the budget test as required by Section 20.2.99.137 

NMAC for the potion of the 8-hour ozone nonattainment area covered by the approved or adequate motor vehicle 

emissions budgets in the l-hour ozone applicable implementation plan or implementation plan submission; and the 

interim emissions tests as required by Section 20.2.99.138 NMAC for either: the portion of the 8-hour ozone 

nonattainrnent area not covered by the approved or adequate budgets in the l-hour ozone implementation plan, the 

entire 8-hour ozone nonattainment area, or the entire portion of the 8-hour ozone nonattainment area within an 

individual state, in the case where separate l-hour S@ budgets are established for each state of a multi-state l-hour 

nonattainment area partially covers a l-hour ozone nonattainment or maintenance area(s). 

(d) If the 8-hour ozone nonattainment area partially covers a 1-hour ozone nonattainment of 

maintenance area(s) the budget test as required by Section 20.2.99.137 NMAC for the portion of the 8-hour ozone 

nonattainment area covered by the corresponding portion of the approved or adequate motor vehicle emissions 

budgets in the 1-hour ozone applicable implementation plan or implementation plan submission where they can be 

reasonably identified through the interagency consultation process required by Section 20.2.99.1 16 NMAC ; and the 

interim emissions tests as required by Section 20.2.99.138 NMAC, when applicable, for either: the portion of the 8- 

hour ozone nonattainment area not covered by the approved or adequate budgets in the l-hour ozone 

implementation plan, the entire 8-hour ozone nonattainment area, or the entire portion of the 8-hour ozone 

nonattainrnent area within an individual state, in the case where separate l-hour SIP budgets are established for each 

state in a multi-state l-hour nonattainment or maintenance area. 

(3) Such an 8-hour ozone nonattainment area must satisfy the interim emissions test for NOx, as 

required by Section 20.2.99.138 NMAC, if the only implementation plan or plan submission that is applicable for 

the purposes of conformity determinations is a fifteen percent (15%) plan or other control strategy SIP that 

addresses reasonable further progress that does not include a motor vehicle emissions budget for NOx. The 

implementation plan for the 8-hour ozone NAAQS will be considered to establish a motor vehicle emissions budget 

for NOx if the implementation plan or plan submission contains an explicit NOx motor vehicle emissions budget 

that is intended to act as a ceiling on future NOx emissions, and the NOx motor vehicle emissions budget is a net 

reduction from NOx emissions levels in 2002. Prior to an adequate or approved NOxmotor vehicle e&ssions 

budget in the implementation plan submission for the 8-hour ozone NAAQS, the implementation plan for the l-hour 

ozone NAAQS will be considered to establish a motor vehicle emissions budget for.NOx if the implementation plan 

contains on explicit NOx motor vehicle emissions budget that is intended to act as a ceiling on future NOx 

emissions, and the NOx motor vehicle emission budget is a net reduction from NOx emissions levels in 1990. 

(4) Notwithstanding Paragraphs (1) and (2) of Subsection E of this section (20.2.99.128 NMAC), 

ozone nonattainment areas with three years of clean data for the 8-hour ozone NAAQS that have not submitted a 

maintenance plan and that EPA has determined are not subject to the Clean Air Act reasonable further progress and 

attainment demonstration requirement for the 8-hour ozone NAAQS must satisfy one of the following requirements: 

(a) the budget test andlor interim emissions tests are required by Sections 20.2.99.137 NMAC 

and 20.2.99.138 NMAC and a. described in Paragraph (2) of Subsection E of this section (20.2.99.128 MC); 

@) the budget test as required by Section 20.2.99.137 NMAC, using the adequate or approved 

motor vehicle emission budgets in the submitted or applicable control strategy implementation plan for the 8-hour 

ozoneNAAQS (subject to the timing requirements of Paragraph (1) of Subsection E of 20.2.99.128 NMAC; or 

(c) the budget test as required by Section 20.2.99.137 NMAC, using the motor vehicle 

emissions of ozone precursors in the most recent year of clean data as motor vehicle emissions budgets, if such 

Proposed Revisions to 20.2.99 NMAC 19 
budgets are established by the EPA rulemaking that determines that the area has clean data for the 8-hour ozone 

NAAQS. 

F. CO nonattainment and maintenance areas. In addition to the criteria listed in Table 1 in 

Subsection B of 20.2.99.128 NMAC that are required to be satisfied at all times, in CO nonattainment and 

maintenance areas conformity detenninations must include a demonstration that the hot spot, budget andlor interim 

emissions tests are satisfied as described in the following. 

(1) FHWA/ETA projects in CO nonattainment or maintenance areas must satisfy the hot spot test 

required by Subsection A of 20.2.99.135 NMAC at all times. Until a CO attainment demonstration or maintenance 

plan is approved by US EPA, FHWA/FTA projects must also satisfy the hot spot test required by Subsection B of 

20.2.99.135 NMAC. 

(2) In CO nonattainment and maintenance areas the budget test must be satisfied as required by 

20.2.99.137 NMAC for conformity determinations made -: 

(a) the effective date of EPA's finding that a motor vehicle emissions budget in a submitted 

control strategy implementation plan revision or maintenance plan is adequate for transportation confomty 

purposes; 

(b) the publication date of EPA's approval of such a budget in the federal register; or 

(c) the effective date of EPA's approval of such a budget in the federal register, if such 

approval is completed through direct final rulemaking. 

(3) Except as provided in Paragraph (4) of Subsection F of 20.2.99.128 NMAC, in CO nonattainment 

areas the interim emissions tests must be satisfied as required by 20.2.99.138 NMAC for conformity determinations 

made when there is no approved motor vehicle emissions budget from an applicable implementation plan and no 

adequate motor vehicle emissions budget fiom a submitted control strategy mplementation plan revision or 

maintenance plan. 

(4) CO nonattainment areas that have not submitted a maintenance plan and that are not required to 

submit an attainment demonstration (e.g., moderate CO areas with a design value of 12.7 ppm or less or not 

classified CO areas) must satisfy one of the following requirements: 

(a) the interim emissions tests required by 20.2.99.138 NMAC; or 

@) the deparhnent shall submit to US EPA an implementation plan revision that contains 

motor vehicle emissions budget(s) and an attainment demonstration, and the budget test required by 20.2.99.137 

NMAC must be satisfied using the adequate or approved motor vehicle emissions budget(s) (as described in 

Paragraph (2) of Subsection F of 20.2.99.128 NMAC). 

G. PMlO nonattainment and maintenance areas. In addition to the criteria listed in Table 1 in 

Subsection B of 20.2.99.128 NMAC that are required to be satisfied at all times, in PMlO nonattainment and 

maintenance areas conformity detenninations must include a demonstration that the hot spot, budget andor interim 

emissions tests are satisfied as described in the following. 

(1) FHWAIFTA projects in PMlO nonattainment or maintenance areas must satisfy the hot spot test 

required by 20.2.99.135 NMAC. 

(2) In PMlO nonattainment and maintenance areas the budget test must be satisfied as required by 

20.2.99.137 NMAC for conformity determinations made -: 

(a) the effective date of EPA's finding that a motor vehicle emissions budget in a submitted 

control strategy implementation plan revision or maintenance plan is adequate for transportation conformity 

purposes; 

@) the publication date of EPA's approval of such a budget in the federal register; or 

(c) the effective data of EPA's approval of such a budget in the federal register, if such 

approval is completed through direct final rulemaking. 

(3) In PMlO nonattainment areas the interim emissions tests must be satisfied as required by 

20.2.99.138 NMAC for conformity determinations made: 

(a) if there is no approved motor vehicle emissions budget from an applicable implementation 

plan and no adequate motor vehicle emissions budget fiom a submitted control strategy implementation plan 

revision or maintenance plan; or 

@) if the submitted implementation plan revision is a demonstration of impracticability under 

CAA Section 189(a)(l)(B)(ii) and does not demonstrate attainment. 

H. NO2 nonattainment and maintenance areas. In addition to the criteria listed in Table 1 in 

Subsection B of 20.2.99.128 NMAC that are required to be satisfied at all times, in NO2 nonattainment and 

maintenance areas conformity determinations must include a demonstration that the budget andor interim emissions 

tests are satisfied as described in the following. 

Proposed Revisions to 20.2.99 NMAC 
(1) In NO2 nonattainment and maintenance areas the budget test must be satisfied as required by 

20.2.99.137 NMAC for conformity determinations made _: 

(a) the effective date of EPA's fipding that a motor vehicle emissions budget in a submitted 

control strategy implementation plan revision or maintenance plan is adequate for transportation conformity 

purposes. 

(b) the publication date of EPA's approval of such a budget in the federal register; or 

(c) the effective data of EPA's approval of such a budget in the federal register, if such 

approval is completed through direct final rulemaking. 

(2) In NO2 nonattainment areas the interim emissions tests must be satisfied as required by 

20.2.99.138 NMAC for conformity determinations made when there is no approved motor vehicle emissions budget 

from an applicable implementation plan and no adequate motor vehicle emissions budget from a submitted control 

strategy implementation plan revision or maintenance plan. 

I. PM2.5 nonattainment and maintenance areas. In addition to the criteria listed in Table 1 in Subsection B of 

Section 20.2.99.128 NMAC that are required to be satisfied at all times, in PM2.5 nonattainment and maintenance 

areas conformity determinations must include a demonstration that the budget andlor interim emissions tests are 

satisfied as described in the following: 

(1) FHWA/FTA projects in PM2.5 nonattainment or maintenance areas must satisfy the appropriate 

hot-spot test required by Subsection A of Section 20.2.99.135 NMAC. 

(2) in PM2.5 nonattainment and maintenance areas the budget in a submitted control strategy 

implementation plan revision or maintenance plan is adequate for transportation conformity purposes; 

(a) the effective date of EPA's finding that a motor vehicle emissions budget in a submitted 

control strategy implementation plan revision or maintenance plan is adequate for transportation conformity 

purposes; 

@) the publication date of EPA's approval of such a budget in the federal register; or 

(c) the effective data of EPA's approval of such a budget in the federal register, if such 

approval is completed through direct final rulemaking. 

(3) In PM2.5 nonattainment areas the interim emissions tests must be satisfied as required by Section 

20.2.99.138 NMAC for conformity determinations made if there is no approved motor vehicle emissions budget 

from an applicable implementation plan and no adequate motor vehicle emissions budget from a submitted control 

strategy implementation plan revision or maintenance plan. 

J. Areas with limited maintenance plans. Notwithstanding the other paragraphs of this section, an 

area is not required to satisfy the regional emissions analysis for Sections 20.2.99.137 NMAC andlor 20.2.99.138 

NMAC for a given pollutant and NAAQS, if the area has an adequate or approved limited maintenance plan would 

have to demonstrate that it would be unreasonable to expect that such an area would experience enough motor 

vehicle emissions growth for a NAAQS violations to occur. A conformity determination that meets other applicable 

criteria in Table 1 or Subsection B of this section (20.2.99.128 NMAC) is still required, including the hot-spot 

requirements for projects in CO, PM10, and PM2.5 areas. 

K Areas with insignificant motor vehicle emissions. Notwithstanding the other Subsections in this 

section (20.2.99.128 NMAC), and area is not required to satisfy a regional emissions analysis for Sections 

20.2.99.137 NMAC and/or 20.2.99.138 NMAC for a given pollutant/precursor and NAAQS, ifEPA finds through 

the adequacy or approval process that a SIP demonstrates that regional motor vehicle emissions are an insignificant 

contributor to the air quality problem for that pollutant/precursor and NAAQS. The SIP would have to demonstrate 

that it would be unreasonable to expect that such an area would experience enough motor vehicle emissions growth 

in that pollutardprecursor for a NAAQS violation to occur. Such a finding would be based on a number of factors, 

including the percentage of motor vehicle emissions in the context of the total SIP inventory, the current state of air 

quality as determined by monitoring data for that NAAQS, the absence of SIP motor vehicle control measures, and 

historical trends and future projections of the growth of motor vehicle emissions. A conformity determination that 

meets other applicable criteria in Table 1 or Subsection B of this section (20.2.99.128 NMAC) is still required, 

including regional emissions analyses for Sections 20.2.99.137 NMAC and/or 20.2.99.138 NMAC for other 

pollutants/precursors and NAAQS that apply. Hot-spot requirements for projects in CO, PM10, and PM2.5 areas in 

Section 20.2.99.135 NMAC must also be satisfied, unless EPA determined that the SIP also demonstrates that 

projects will not create new localized violations and/or increase the severity or number of existing violations of such 

NAAQS. If EPA subsequently finds that motor vehicle emissions of a given pollutant/precursor are significant, this 

subsection would no longer apply for future conformity determinations for that pollutant/precursor and NAAQS. 

L. Isolated ru-A nonattainment and maintenance areas. This subsection applies to any nonattainment 

or maintenance area (or portion thereof) which does not have a metropolitan transportation plan or TIP and whose 

Proposed Revisions to 20.2.99 NMAC 21 
projects are not part of the emissions analysis of any MPO's metropolitan transportation plan or TIP. This 

subsection does not apply to "donut" areas which are outside the metropolitan planning boundary and inside the 

nonattainmentlmaintenance area boundary. 

(1) FKWAlFTA projects in all isolated rural nonattainment and maintenance areas must satisfy the 

requirements of 20.2.99.129 NMAC through 20.2.99.131 NMAC, Subsection D of 20.2.99.132 NMAC, 20.2.99.135 

NMAC, and 20.2.99.136 NMAC. Until US EPA approves the control strategy implementation plan or maintenance 

plan for a rural CO nonattainment or maintenance area, FHWAfFTA projects must also satisfy the requirements of 

Subsection B of 20.2.99.135 NMAC ("Localized CO, PM10, and PM2.5 violations (hot spots)"). 

(2) Isolated rural nonattainment and maintenance areas are subject to the budget andfor interim 

emissions tests as described in Subsections C through K of 20.2.99.128 NMAC, with the following modifications: 

(a) when the requirements of Subsection D of 20.2.99.125 NMAC, 20.2.99.135 NMAC. 

20.2.99.137 NMAC and 20.2.99.138 NMAC apply to isolated rural nonattainment and maintenance areas, 

references to "transportation plan" or "TIP" should be taken to mean those projects in the statewide transportation 

plan or statewide TIP which are in the rural nonattainment or maintenance area When the requirements of 

Subsection D of 20.2.99.125 NMAC avplv to isolated rural nonattainment and maintenance areas, references to 

"MPO" should be taken to mean NMDOT. 

@) in isolated rural nonattainrnent and maintenance areas that are subject to 20.2.99.137 

NMAC, FHWAlFTA projects must be consistent with motor vehicle emissions budget(s) for the years in the 

timefiame of the attainment demonstration or maintenance plan. For years after the attainment year (if a 

maintenance plan has not been submitted) or after the last year of the maintenance plan, FHWlVFTA projects must 

satisfy one of the following requirements: 

(i) 20.2.99.137 NMAC; 

(ii) 20.2.99.138 NMAC (including regional emissions analysis for NOx in all ozone 

nonattainment and maintenance areas, notwithstanding Paragraph (2) of Subsection F of 20.2.99.138 NMAC; or 

(iii) as demonstrated by the air quality dispersion model or other air quality modeling 

technique used in the attainment demonstration or maintenance plan, the FHWAFTA project, in combination with 

all other regionally significant projects expected in the area in the timeframe of the statewide transportation plan, 

must not cause or contribute to any new violation of any standard in any areas; increase the frequency or severity of 

any existing violation of any standard in any area; or delay timely attainment of any standard or any required interim 

emission reductions or other milestones in any area; control measures assumed in the analysis must be enforceable. 

(c) the choice of requirements in Subparagraph (b) of Paragraph (2) of Subsection G of 

20.2.99.128 NMAC and the methodology used to meet the requirements of item (iii) of Subparagraph (b) of 

Paragraph (2) of Subsection G of 20.2.99.128 NMAC must be determined through the interagency consultation 

process required in Paragraph (6) of Subsection B of 20.2.99.117 NMAC and Paragraph (5) of Subsection C of 

20.2.99.1 17 NMAC through which the relevant recipients of title 23 U.S.C. or federal transit laws funds, NMDOT, 

the department, or the local air quality agency should reach consensus about the option and methodology selected; 

US EPA and US DOT must be consulted through this process as well; in the event of unresolved disputes, conflicts 

may be escalated to the governor consistent with the procedure in 20.2.99.123 NMAC, which applies to department 

comments on a conformity determination. 

[12/14/94; 11/23/98; 20.2.99.128 NMAC - Rn, 20 NMAC 2.99.128 10/31/02; A, 10/15/05; A, 07/16/07& 

xxlxxl081 

203.99.129 CRITERIA AND PROCEDURES - LATEST PLANNING ASSUMPTIONS. 

A. Except as provided in this paragraph, the conformity determination, with respect to all other 

applicable criteria in 20.2.99.130 NMAC through 20.2.99.138 NMAC, must be based upon the most recent planning 

assumptions in force at the time the conformity analysis begins. The conformity determination must satisfy the 

requirements of Subsections B through F of 20.2.99.129 NMAC using the planning assumptions available at the 

time the confonnity analysis begins as determined through the interagency consultation process required 

Subparagraph (a) of Paragraph (1) of Subsection C of Section 20.2.99.1 16 NMAC. The "time the confonnity 

analysis begins" for a transportation plan or TIP determination in the point at which the MPO or the other designated 

agency begins to model the impact of the proposed transportation plan or TIP on travel and/or emissions. New data 

that becomes available after an analysis begins is required to be used in the conformity determination only if a 

significant delay in the analysis has occurred, as determined through interagency consultation. 

B. Assumptions (including, but not limited to, vehicle miles traveled per capita or per household, trip 

generation per household, vehicle occupancy, household size, vehicle fleet mix, vehicle ownership, and the 

geographic distribution of population growth) must be derived from the estimates of current and future population, 

Proposed Revisions to 20.2.99 NMAC 22 
employment, travel, and congestion most recently developed by the MPO, or other agency authorized to make such 

estimates and approved by the MPO. The confonnity determination must also be based on the latest assumptions 

about current and future background concentrations. 

C. The conformity determination for each transportation plan and TIP must discuss how transit 

operating policies (including fares and service levels) and assumed transit ridership have changed since the previous 

conformity determination. 

D. The conformity determination must include reasonable assumptions about transit service and 

increases in transit fares and road and bridge tolls over time. 

E. The conformity determination must use the latest existing information regarding the effectiveness 

of the TCMs and other implementation plan measures whch have already been implemented. 

F. Key assumptions shall be specified and included in the draft documents and supporting materials 

used for the interagency md public consultation required by 20.2.99.1 16 NMAC through 20.2.99.124 NMAC. 

[12/14/94; 11/23/98; 20.2.99.129 NMAC - Rn, 20 NMAC 2.99.129 10/31/02; A, 10/15/05] 

20.2.99.130 CRITERIA AND PROCEDURES - LATEST EMISSIONS MODEL 

A. The conformity determination shall be based on the latest emission estimation model available. 

This criterion is satisfied if the most current version of the motor vehicle emissions model specified by US EPA for 

use in the preparation or revision of implementation plans in the State or area is used for thd conformity analysis. 

Where EMFAC is the motor vehicle emissions model used in preparing or revising the SIP, new versions must be 

approved by US EPA before they are used in the conformity analysis. 

B. US EPA will consult with US DOT to establish a grace period following the specification of any 

new model. The grace period will be no less than three (3) months and no more than twenty-four (24) months after 

notice of availability is published in the Federal Register. The length of the grace period will depend on the degree 

of change in the model and the scope of re-planning likely to be necessary by MPOs in order to assure conformity. 

If the grace period will be longer than three (3) months, US EPA will announce the appropriate grace period in the 

Federal Register. 

C. Conformity analyses for which the emissions analysis was begun before the Federal Register 

notice of availability of the latest emission model, or during the grace period announced in such notice, may 

continue to use the previous version of the model for transportation plans and TIPS. The previous model may also 

be used for projects if the analysis was begun during the grace period or before the Federal Register notice of 

availability, provided no more than three (3) years have passed since the draft environmental document was issued. 

[12/14/94; 11/23/98; 20.2.99.130 NMAC - Rn, 20 NMAC 2.99.130 1013 1/02] 

20.2.99.131 CRlTERIA AND PROCEDURES - CONSULTATION: Conformity determinations must be 

determined according to the consultation procedures in this Part, and according to the public involvement 

procedures established in compliance with 23 CFR part 450. Until this Part is fully approved by US EPA as an 

implementation plan revision, the conformity determination must be made according to the procedures in 40 CFR 

93.105(a)(2) and (e). 

[12/14/94; 11/23/98; 20.2.99.131 NMAC - Rn, 20 NMAC 2.99.131 10/31/02] 

20.2.99.132 CRITERIA AND PROCEDURES - TIMELY IMPLEMENTATION OF TCMS: 

A. The transportation plan, TIP, or any FHWA/FTA project which is not from a conforming plan and 

TIP must provide for the timely implementation of TCMs from the SIP. 

B. For transportation plans, this criterion is satisfied if the following two conditions are met: 

(1) The transportation plan, in describing the envisioned future transportation system, provides for the 

timely completion or implementation of all TCMs in the SIP, which are eligible for funding under title 23 U.S.C. or 

the Federal Transit Laws, consistent with schedules included in the SIP. 

(2) Nothing in the transportation plan interferes with the implementation of any TCM in the SIP. 

C. For TIPS, this criterion is satisfied if the following conditions are met: 

(1) An examination of the specific steps and funding source(s) needed to fully implement each TCM 

indicates that TCMs, which are eligible for funding under title 23 U.S.C. or the Federal Transit Laws, are on or 

ahead of the schedule established in the SIP, or, if such TCMs are behind the schedule established in the SIP, the 

MPO (or the NMSHTD in the absence of an MPO) and US DOT have determined that past obstacles to 

implementation of the TCMs have been identified and have been or are being overcome, and that all State and local 

agencies with influence over approvals or funding for TCMs are giving maximum priority to approval or funding of 

Proposed Revisions to 20.2.99 NMAC 
TCMs over other projects within their control, including projects in locations outside the nonattainment or 

maintenance area. 

(2) If TCMs in the applicable SIP have previously been programmed for Federal hnding but the 

funds have not been obligated and the TCMs are behind the schedule in the implementation plan, then the TIP 

cannot be found to conform if the funds intended for those TCMs are reallocated to projects in the TIP other than 

TCMs (or if there are no other TCMs in the TIP, if the funds are reallocated to projects in the TIP other than projects 

which are eligible for Federal funding intended for air quality improvement projects, e.g., the Congestion Mitigation 

and Air Quality Improvement Program). 

(3) Nothing in the TIP interferes with the implementation of any TCM in the SIP. 

D. For FHWMA projects which are not from a conforming transportation pIan and TIP, this 

criterion is satisfied if the project does not interfere with the implementation of any TCM in the SIP. 

[12/14/94; 11/23/98; 20.2.99.132 NMAC - Rn, 20 NMAC 2.99.132 10/31/02] 

20.2.99.133 CRITERIA AND PROCEDURES - CURRENTLY CONFORMING TRANSPORTATION 

PLAN AND TIP: There must be a currently conforming transportation plan and currently conforming TIP at the 

time of project approval, or a vroiect must meet the requireme& in subsection B of 20.2.99.1 11 WC durine the 

twelve (12) month lavse mace period. Only one conforming transportation plan or TIP may exist in an area at any 

time; conformity determinations of a previous transportation plan or TIP expire once the confonnity determination 

for the current plan or TIP is made by US DOT. The conformity determination on a transportation plan or TIP will 

also lapse if conformity is not determined according to the frequency requirements of 20.2.99.1 11 NhUC through 

20.2.99.1 15 NMAC. This criterion is not required to be satisfied at the time of project approval for a TCM 

specifically included in the SIP, provided that all other relevant criteria of this Part are satisfied. 

[12/14/94; 11/23/98; 20.2.99.133 NMAC - Rn, 20 NMAC 2.99.133 10/31/02; A. xx/xx/O81 

20.2.99.134 CRITERIA AND PROCEDURES - PROJECTS FROM A TRANSPORTATION PLAN 

AND TIP: 

A. The project must come from a confonning transportation plan and TIP. If this criterion is not 

satisfied, the project must satisfy all criteria in Table 1 of subsection B of 20.2.99.128 NMAC for a project not from 

a conforming transportation plan and TIP. A project is considered to be from a conforming transportation plan if it 

meets the requirements of subsection B of 20.2.99.134 NMAC and from a conforming TIP if it meets the 

requirements of subsection C of 20.2.99.134 NMAC. Special provisions for TCMs in an applicable implementation 

plan are provided in subsection D of 20.2.99.134 NMAC. 

B. A project is considered to be from a conforming transportation plan if one of the following 

conditions apply: 

(1) For projects which are required to be identified in the transportation plan in order to satisfy 

20.2.99.125 NMAC, the project is specifically included in the conforming transportation plan and the project's 

design concept and scope have not changed significantly from those which were described in the transportation plan, 

or in a manner which would significantly impact use of the facility; or 

(2) For projects which are not required to be specifically identified m the transportation plan, the 

project is identified in the conforming transportation plan, or is consistent with the policies and purpose of the 

transportation plan and will not interfere with other projects specifically included in the transportation plan. 

C. A project is considered to be from a conforming TIP if the following conditions are met: 

(1) The project is included in the conforming TIP and the design concept and scope of the project 

were adequate at the time of the TIP confonnity determination to determine its contribution to the TIP'S regional 

emissions, and the project design concept and scope have not changed significantly from those which were 

described in the TIP; and 

(2) If the TIP describes a project design concept and scope which includes project-level emissions 

mitigation or control measures, written commitments to implement such measures must be obtained from the project 

sponsor andlor operator as required by subsection A of 20.2.99.148 NMAC in order for the project to be considered 

to be from a conforming program. Any change in these mitigation or control measures that would significantly 

reduce their effectiveness constitutes a change in the design concept and scope of the project. 

D. TCMs: This criterion is not required to be satisfied for TCMs specifically included in an 

applicable implementation plan. 

E. Notwithstanding the requirements of Subsections A, B. and C of this section (20.2.99.134 

NMAC), a proiect must meet the requirements of Subsection B of 20.2.99.1 11 NMAC during the twelve (12) month 

lapse =ace period. 

Proposed Revisions to 20.2.99 NMAC 24 
[12/14/94; 11/23/98; 20.2.99.134 NMAC - Rn, 20 NMAC 2.99.134 10/31/02; A, xxlxx/08] 

20.2.99.135 CRITERIA AND PROCEDURES - LOCALIZED CO, PMlO, AND PM2.5 VIOLATIONS 

(HOT SPOTS). 

A. This paragraph applies at all times. The FHWA/FTA project must not cause or contribute to any 

new localized CO, PM10, andlor PM2.5 violations or increase the frequency or severity of any existing CO, PM10, 

and/or PM2.5 violations in CO, PM10, and PM2.5 nonattainment and maintenance areas. This criterion is satisfied 

without a hotspot analysis in PM10 and PM2.5 nonattainment and maintenance areas for FHWNFTA projects that 

are not identified in paragraph (1) of Subsection B of 20.2.99.148 NMAC. This criterion is satisfied for all other 

FHWA/FTA projects in CO, PM10, and PM2.5 nonattainment and maintenance areas if it is demonstrated that . . during the time frame of the transportation plan '--no new local violations will be 

created and the severity or number of existing violations will not be increased as a result of the project. The 

demonstration shall be performed according to the consultation requirements of Subsection A of 20.2.99.120 NMAC 

and the methodology requirements of 20.2.99.148 NMAC. 

B. This paragraph applies for CO nonattainment areas as described in Paragraph (1) of Subsection F 

of 20.2.99.128 NMAC. Each FHWAlETA project must eliminate or reduce the severity and number of localized 

CO violations in the area substantially affected by the project (in CO nonattainment areas). This criterion is satisfied 

with respect to existing localized CO violations if it is demonstrated that during the time frame of the transportation 

plan (or regional emissions analysis) existing localized CO violations will be eliminated or reduced in severity and 

number as a result of the project. The demonstration must be performed according to the consultation requirements 

of Subsection A of 20.2.99.120 NMAC and the methodology requirements of 20.2.99.146 NMAC. 

[12/14/94; 11/23/98; 20.2.99.135 NMAC - Rn, 20 NMAC 2.99.135 10/31/02; A, 10/15/05; A, 07/16/07d 

xx/xx/Odl 

20.2.99.136 CRITERIA AND PROCEDURES - COMPLIANCE WITH PMlO and PM2.5 CONTROL 

MEASURES. The FHWAlFrA project must comply with PM10 and PM2.5 control measures in the applicable 

implementation plan. This criterion is satisfied if the project-level conformity determination contains a written 

commitment from the project sponsor to include in the final plans, specifications, and estimates for the project those 

control measures (for the purpose of limiting PM10 and PM2.5 emissions from the construction activities andlor 

normal use and operation associated with the project) that are contained in the applicable implementation SIP. 

[12/14/94; 11/23/98; 20.2.99.136 NMAC - Rn, 20 NMAC 2.99.136 10/31/02; A, 10/15/05] 

20.2.99.137 CRITERIA AND PROCEDURES - MOTOR VEHICLE EMISSIONS BUDGET. 

A. The transportation plan, TIP, and project not from a conforming transportation plan and TIP must 

be consistent with the motor vehicle emissions budget(s) in the applicable control strategy implementation plan (or 

implementation plan submission). This criterion applies as described in Subsections C through L of 20.2.99.128 

NMAC. This criterion is satisfied if it is demonstrated that emissions of the pollutants or pollutant precursors 

described in Subsection C of 20.2.99.137 NMAC are less than or equal to the motor vehicle emissions budget@) 

established in the applicable implementation plan or implementation plan submission. 

B. Consistency with the motor vehicle emissions budget(s) must be demonstrated for each year for 

which the applicable (andlor submitted) implementation plan specifically establishes motor vehicle emissions 

budget(s), for the attainment year (if it is within the time frame of the transportation plan and conformity 

determination), for the last year of the timeframe of the conformitv determination (as described under Subsection D 

of 20.2.99.125 NMAC) '-------t-t;-- and for any intermediate years within the timeframe of 

the conformity determination as necessary so that the years for which consistency is demonstrated are no more than 

ten years apart, as follows. 

(1) Until a maintenance plan is submitted: 

(a) emissions m each year (such as milestone years and the attainment year) for which the 

control strategy implementation plan revision establishes motor vehicle emissions budget(s) must be less than or 

equal to that year's motor vehicle emissions budget(s); and 

(b) emissions in years for which no motor vehicle emissions budget@) are specifically 

established must be less than or equal to the motor vehicle emissions budget(s) established-for the most recent prior 

year; for example, emissions in years after the attainment year for which the implementation plan does not establish 

a budget must be less than or equal to the motor vehicle emissions budget(s) for the attainment year. 

(2) When a maintenance plan has been submitted: 

Proposed Revisions to 20.2.99 NMAC 
(a) emissions must be less than or equal to the motor vehicle emissions budget(s) established 

for the last year of the maintenance plan, and for any other years for which the maintenance plan establishes motor 

vehicle emissions budgets; if the maintenance plan does not establish motor vehicle emissions budgets for any years 

other than the last year of the maintenance plan, the demonstration of consistency with the motor vehicle emissions 

budget(s) must be accompanied by a qualitative finding that there are no factors which would cause or contribute to 

a new violation or exacerbate an existing violation in the years before the last year of the maintenance plan; the 

interagency consultation process required by 20.2.99.1 16 NMAC through 20.2.99.124 NMAC shall determine what 

must be considered in order to make such a finding; 

(b) for years after the last year of the maintenance plan, emissions must be less than or equal to 

the maintenance plan's motor vehicle emissions budget(s) for the last year of the maintenance plan; 

(c) if an approved andfor submitted control strategy implementation plan has established motor 

vehicle emissions budgets for years in the timeframe of the transportation plan, emissions in these years must be less 

than or equal to the control strategy implementation plan's motor vehicle emissions budget@) for these years: and 

(d) for any analysis years before the last year of the maintenance plan, emissions must be less 

than or equal to the motor vehicle emissions budget(s) established for the most recent prior year. 

C. Consistency with the motor vehicle emissions budget(s) must be demonstrated for each pollutant 

or uollutant Drecursor in Subsection B of 20.2.99.109 NMAc (or 20.2.99.101 NMAC) for which the area is in ' - 

nonattainment or maintenance and for which the applicable implementation plan (or implementation plan 

submission) establishes a motor vehicle emissions budget. 

D. Consistency with the motor vehicle emissions budget(s) must be demonstrated by including 

emissions from the entire trafisportation system, including all regionally significant projects contained in the 

transportation plan and all other regionally significant highway and transit projects expected in the nonattainment or 

maintenance area in the timehe of the transportation plan. 

(1) Consistency with the motor vehicle emissions budget(s) must be demonstrated with a regional 

emissions analysis that meets the requirements of 20.2.99.141 NMAC through 20.2.99.147 NMAC and 20.2.99.120 

NMAC. 

(2) The regional emissions analysis may be performed for any years in the timeframe of the 

tmqm#m~ jAe Nrovided 

they are not more than ten years apart and provided the analysis is performed for the attainment year (if it is in the 

timeframe of the transportation plan and conformitv determination) and the last year of the 

timeframe for the conformitv determination. Emissions in years for which consistency with motor vehicle emissions 

budgets must be demonstrated, as required in Subsection B of 20.2.99.137 NMAC, may be determined by 

interpolating between the years for which the regional emissions analysis is performed. 

j3) When the timeframe of the conformity determination is shortened under Paramaph (2) of 

20.2.99.125.D NMAC. the conformitv determination must be accompanied bv a reeional emissions analvsis (for 

informational uumosed only) for the last vear of the trans~ortation vlan, and for anv year shown to exceed motor 

vehicle emissions budpets in a prior regional emissions analvsis (if such a vear extends bevond the timeframe of the 

conformity determination). 

E. Motor vehicle emissions budgets in submitted control strategy implementation plan revisions and 

submitted maintenance plans. 

(1) Consistency with the motor vehicle emissions budgets in submitted control strategy 

implementation plan revisions or maintenance plans must be demonstrated if US EPA has declared the motor 

vehicle emissions budget(s) adequate for transportation conformity purposes, and the adequacy finding is effective. 

However, motor vehicle emissions budgets in submitted implementation plans do not supersede the motor vehicle 

emissions budgets in approved implementation plans for the same Clean Air Act requirement and-the period of years 

addressed by the previously approved implementation plan, unless US EPA specifies otherwise in its approval of a 

SIP. 

(2) IfUS EPA has not declared an implementation plan submission's motor vehicle emissions 

budget(s) addkte for transportation conformity the budget(s) shall not be used to satisfy the 

requirements of this section. Consistency with the previously established motor vehicle emissions budget(s) must be 

demonstrated. If there are no praiously approved implementation plans or implementation plan submissions with 

adequate motor vehicle emissions budgets, the interim emissions tests required by 20.2.99.138 NMAC must be 

satisfied. 

(3) - IfUS EPA declares an implementation plan submission's motor vehicle emissions budget(s) 

inadequate for transportation conformity purposes and conformity of a transportation plan or TIP has already been 

determined by US DOT using the budget(s), the conformity determination will remain valid. Projects included in 

Proposed Revisions to 20.2.99 NMAC 
that transportation plan or TIP could still satisfy 20.2.99.133 NMAC and 20.2.99.134 NMAC, which require a 

currently conforming transportation plan and TIP to be in place at the time of a project's conformity determination 

and that projects come from a conforming transportation plan and TIP. 

(4) US EPA will not find a motor vehicle emissions budget in a submitted control strategy 

implementation plan revision or maintenance plan to be adequate for transportation conformity purposes unless the 

following u minimum criteria are satisfied: 

(a) the submitted control strategy implementation plan revision or maintenance plan was 

endorsed by the governor (or his or her designee) and was subject to a state public hearing; 

@) before the control strategy implementation plan or maintenance plan was submitted to US 

EPA, consultation among federal, state, and local agencies occurred; full implementation plan documentation was 

provided to US EPA; and US EPA's stated concerns, if any, were addressed, 

(c) the motor vehicle emissions budget(s) is clearly identified and precisely quantified; 

(d) the motor vehicle emissions budget(s), when considered together with all other emissions 

sources, is consistent with applicable requirements for reasonable further progress, attainment, or maintenance 

(whichever is relevant to the given implementation plan submission); 

(e) the motor vehicle emissions budget(s) is consistent with and clearly related to the emissions 

inventory and the control measures in the submitted control strategy implementation plan revision or maintenance 

plan; and 

(0 revisions to previously submitted control strategy implementation plans or maintenance 

plans explain and document any changes to previously submitted budgets and control measures; impacts on point 

and area source emissions; any changes to established safety margins (see Subsection A0 of 20.2.99.7 NMAC for 

definition); and reasons for the changes (including the basis for any changes related to emission factors or estimates 

of vehicle miles traveled). 

(5) Before determining the adequacy of a submitted motor vehicle emissions budget, US EPA will 

review the department's compilation of public comments and response to comments that are required to be submitted 

with any implementation plan. US EPA will document its consideration of such comments and responses in a letter 

to the department indicating the adequacy of the submitted motor vehicle emissions budget. 

(6) When the motor vehicle emissions budget(s) used to satisfy the requirements of this section are 

established by an implementation plan submittal that has not yet been approved or disapproved by US EPA, the 

MPO and US DOTS conformity determinations will be deemed to be a statement that the MPO and US DOT are not 

aware of any information that would indicate that emissions consistent with the motor vehicle emissions budget will 

cause or contribute to any new violation of any standard; increase the frequency or severity of any existing violation 

of any standard; or delay timely attainment of any standard or any required interim emission reductions or other 

milestones. 

P. Adequacy review process for implementation plan submissions. US EPA will use the procedure 

listing in Paragraph (1) of Subsection F of this section (20.2.99.137 NMAC) to review the adequacy of an 

implementation plan. 

(1) When US EPA reviews the adequacy of an implementation plan submission prior to EPA's final 

action on the implementation plan: 

(a) US EPA will notify the public through US EPA's website when US EPA receives an 

implementation plan submission that will be reviewed for adequacy; 

@) the public will have a minimum of 30 days to comment on the adequacy of the 

implementation plan submission; if the complete implementation plan is not accessible elec&o&ally through the 

internet and a copy is requested within fifteen (15) days of the date of the website notice, the comment period will 

be extended 30 days from the date that a copy of the implementation plan is mailed; 

(c) after the public comment period closes, US EPA will inform the department in writing 

whether US EPA has found the submission adequate or inadequate for use in transportation conformity, including 

response to any comments submitted directly and review of comments submitted through the department process, or 

US EPA will include the determination of adequacy or inadequacy in a proposed or fmal action approving or 

disapproving the implementation plan under Subparagraph (c) of Paragraph (2) of Subsection F of this section 

(20.2.99.137 NMAC); 

(d) US EPA will publish a federal register notice to inform the public of US EPA's finding; if 

EPA finds the submission adequate, the effective date of this finding will be fifteen (15) days fiom the date the 

notice is published as established in the federal register notice, unless US EPA is taking a final approval action on 

the SIP as described in Subparagraph (c) of Paragraph (2) for Subsection F for this section (20.2.99.137 NMAC); 

Proposed Revisions to 20.2.99 NMAC 
(e) US EPA will announce whether the implementation plan submission is adequate or 

inadequate for use in transportation conformity on US EPAts website; the website will also include US EPA's 

response to comments of any comments were received during the public comments period; 

(f) if after US EPA has found a submission adequate, US EPA has cause to reconsider this 

finding, US EPA will repeat actions described in Subparagraphs (a) through (e) of Paragraph (1) of Subsection F or 

Paragraph (2) of Subsection F of 20.2.99.137 NMAC unless US EPA determines that there is no need for additional 

public comment given the deficiencies of the implementation plan submission; in all cases where US EPA reverses 

its previous finding to a finding of inadequacy under Paragraph (1) of Subsection F of 20.2.99.137 Nh4AC, such a 

finding will become effective immediately upon the date of US EPAts letter to the department; 

(g) if after EPA has found a submission inadequate, US EPA has cause to reconsider the 

adequacy of that budget, US EPA will repeat actions described in Subparagraphs (a) through (e) of Paragraph (1) of 

this section (20.2.99.137 Nh4AC). 

(2) When US EPA reviews the adequacy of an implementation plan submission simultaneously with 

US EPA's approval or disapproval of the implementation plan: 

(a) US EPA's federal register notice of proposed or direct final rulemaking will serve to notify 

the public that US EPA will be reviewing the implementation plan submission for adequacy; 

(b) the publication of the notice of proposed rulemaking will start a public comment period of at 

least thirty (30) days; 

(c) US EPA will indicate whether the implementation plan submission is adequate and thus can 

be used for conformity either in US EPA's final rulemaking or through the process described in Subparagraphs (c) 

through (e) of Paragraph (1) of Subsection F of this section (20.2.99.137 NMAC); if US EPA makes an adequacy 

finding through a final rulemaking that approves the impIementation plan submission, such a finding will become 

effective upon the publication date of US EPA's approval in the federal register, or upon the effective date of US 

EPA's approval if such action is conducted through direct final rulemaking; US EPA will respond to comments 

received directly and review comments submitted through the department process and include the response to 

comments in the applicable docket. 

[12/14/94; 11/23/98; 20.2.99.137 NMAC - Rn, 20 NMAC 2.99.137 10/31/02; A, 10/15/05; A, xxlxxf081 

20.2.99.138 CRITERIA AND PROCEDURES - INTERIM EMISSIONS IN AREAS WITHOUT 

MOTOR VEHICLE EMlSSIONS BUDGETS. 

A. The transportation plan, TIP, and project not from a conforming transportation plan and TIP must 

satisfy the interim emissions test(s) as described in Subsections C through L of 20.2.99.128 NMAC. This criterion 

applies to the net effect of the action (transportation plan, TIP, or project not from a conforming transportation plan 

and TIP) on motor vehicle emissions from the entire transportation system. 

B. Ozone areas. The requirements of this subsection (Subsection B of 20.2.99.138 NMAC) apply to 

all 1-hour ozone and 8-hour ozone N~QS areas, except for certain requirements as indicated. This criterioi&ay 

be met. 

(1) In moderate and above ozone nonattainment areas that are subject to the reasonable further 

progress requirements of CAA Section 182@)(1) if a regional emissions analysis that satisfies the requirements of 

20.2.99.141 Nh4AC through 20.2.99.147 NMAC and Subsections G through L of 20.2.99.138 NMAC demonstrates 

that for each analysis year and for each of the pollutants described in Subsection F of 20.2.99.138 Nh4AC: 

(a) the emissions predicted in the "action" scenario are less than the emissions predicted in the 

"baseline" scenario, and this can be reasonably expected to be true in the periods between the analysis years; and 

(b) the emissions predicted in the "action" scenario are lower than 1990 emissions by any 

nonzero amount, in areas for the I -hour ozone NAAQS as described in Subsection C of section 20.2.99.128 NMAC; 

or the 2002 emissions by any nonzero amount, in areas for the 8-hour ozone NAAQS as described in Subsections D 

and E of 20.2.99.128 hWC. 

(2) In marginal and below ozone nonattainment areas and other ozone nonattainment areas that are not 

subject to the reasonable further progress requirements of the Clean Air Act Section 182@)(1) if a regional 

emissions analysis that satisfies the requirements of Section 20.2.99.141 Nh4AC through 20.2.99.147 NMAC and 

Subsection G through J of 20.2.99.138 Nh4AC demonstrates that for each analysis year and for each of the 

pollutants described in Subsection F of 20.2.99.138 Nh4AC: 

(a) the emissions predicted in the "action" scenario are not greater than the emissions predicted 

in the "baseline" scenario, and this can be reasonably expected to be true in the periods between the analysis years; 

or 

Proposed Revisions to 20.2.99 Nh4AC 28 
@) the emissions predicted in the "action" scenario are not greater than the 1990 emissions, in 

areas for the 1-hour NAAQS as described in Subsection C of 20.2.99.128 NMAC ; or the 2002 emissions, in areas 

for the &hour ozone NAAQS as described in Subsections D and E for 20.2.99.128 NMAC. 

C. CO areas. This criterion may be met: 

(1) in moderate areas with design values greater than 12.7 ppm and serious CO nonattainment areas 

that are subject to Clean Air Act Section 187(a)(7) if a regional emissions analysis that satisfies they requirements of 

Sections 20.2.99.141 NMAC through 20.2.99.147 NMAC and Subsections G through J of 20.2.99.138 NMAC 

demonstrates that for each analysis year and for each of the pollutants described in Subsection F of 20.2.99.138 

NMAC: 

(a) the emissions predicted in the "action" scenario are less than the emissions predicted in the 

"baseline" scenario, and this can be reasonably expected to be true in the periods between the analysis years; and 

@) the emissions predicted in the "action" scenario are lower than 1990 emissions by any 

nonzero amount. 

(2) in moderate areas with design values less than 12.7 ppm and not classified CO nonattainment 

areas if a regional emissions analysis that satisfies the requirements of Sections 20.2.99.141 NMAC through 

20.2.99.147 NMAC and Subsections G through J of 20.2.99.138 NMAC demonstrates that for each analysis year 

and for each of the pollutants described in Subsection F of 20.2.99.138 NMAC: 

(a) the emissions predicted in the "action" scenario are not greater than the emissions predicted 

in the "baseline" scenario, and this can be reasonably expected to be true in the periods between the analysis years; 

or 

(b) the emissions predicted in the "action" scenario are not greater than 1990 emissions. 

D. PMlO and NO2 areas. This criterion may be met in PMlO and NO2 nonattainment areasif a regional 

emissions analysis that satisfies the requirements of 20.2.99.141 NMAC through 20.2.99.147 NMAC and 

Subsections G through J of 20.2.99.138 NMAC demonstrates that for each analysis year and for each of the 

pollutants described in Subsection F of 20.2.99.138 NMAC, one of the following requirements is met: 

(1) the emissions predicted in the "action" scenario are not greater than the emissions predicted in the 

"baseline" scenario, and this can be reasonably expected to be true in the periods between the analysis years; or 

(2) the emissions predicted in the "action" scenario are not greater than baseline emissions; baseline 

emissions are those estimated to have occurred during calendar year 1990, unless the conformity implementation 

plan revision required by 40 CFR 51.390 defines the baseline emissions for a PM10 area to be those occurring in a 

different calendar year for which a baseline emissions inventory was developed for the purpose of developing a 

control strategy implementation plan. 

E. PM2.5 areas. This criterion maybe met in PM2.5 nonattainment areas if a regional emissions 

analysis that satisfies the requirements of Sections 20.2.99.141 NMAC through 20.2.99.147 NMAC and Subsections 

G through J of 20.2.99.138 NMAC demonstrates that for each analysis year and for each of the pollutants described 

in Subsection F of 20.2.99.138 NMAC, one of the following requirements is met: 

(1) the emissions predicated in the "action" scenario are not greater than the emissions predicted in 

the "baseline" scenario, and this can be reasonably expected to be true in the periods between the analysis years; or 

(2) the emissions predicted in the "action" scenario are not greater that 2002 emissions. 

F. Pollutants. The regional emissions analysis must be performed for the following pollutants: 

(1) VOC in ozone areas; 

(2) NOx in ozone areas, unless the US EPA administrator determines that additional reductions of 

NOx would not contribute to attainment; 

(3) CO in CO areas; 

(4) PMlOinPMlOareas; 

(5) VOC andlor NOx in PMlO areas if the US EPA regional administrator or the department has 

made a finding that such precursor emissions from within the area are a significant contributor to the PMlO 

nonattainment problem and has so notified the MPO and US DOT; 

(6) NOx in NO2 areas 

(7) PM2.5 areas; 

(8) reentrained road dust in PM2.5 areas only if the US EPA regional administrator or the department 

has made a finding that emissions fiom reentrained road dust within the area are a significant contributor to the 

PM2.5 nonattainment problem and has so notified the MPO and US DOT; 

(9) nitrogen oxides in PM2.5 areas, unless the EPA regional adrninistmtor and the department have 

made a finding that emissions of nitrogen oxides fiorn within the area are not a significant contributor to the PM2.5 

nonattainment problem and has so notified the MPO (or the NMDOT in the absence of an MPO) and US DOT; and 

Proposed Revisions to 20.2.99 NMAC 29 
(10) VOC, Sex S02 and/or ammonia in PM2.5 areas if the EPA regional administrator or the 

department has made a fmdlng that any of such precursor emissions fiom within the area are a significant 

contributor to the PM2.5 nonattainment problem and has so notified the MPO (or the NMDOT in the absence of m 

MPO) and US DOT. 

G. Analysis years. 

(1) The regional emissions analysis must be performed for analysis years that are no more than ten 

(10) years apart. The fist analysis year must be no more than five (5) years beyond the year in which the conformity 

determination is being made. The last year of- the timekame of the conformity 

determination (as described under Subsection D of 20.2.99.125 NMAC) must also be an analysis year. 

(2) For areas using Subparagraph (a) of Paragraph (2) of Subsection B of Section 20.2.99.138 

NMAC, Subparagraph (a) of Paragraph (2) of Subsection C of Section 20.2.99.138 NMAC, Paragraph (1) of 

Subsection D of Section 20.2.99.138 NMAC, and Paragraph (1) of Subsection E of Section 20.2.99.138 NMAC, a 

regional emissions analysis that satisfies the requirements of Sections 20.2.99.141 NMAC through 20.2.99.147 

NMAC and Subsections G through J of Section 20.2.99.138 would not be required for analysis years in which the 

transportation projects and planning assumptions in the "action" and "baseline" scenarios are exactly the same. In 

such a case, Subsection A of Section 20.2.99.138 NMAC can be satisfied by documenting that the transportation 

projects and planning assumptions in both scenarios are exactly the same, and consequently, the emissions predicted 

in the "action" scenario are not greater than the emissions predicted in the "baseline" scenario for such analysis 

years. 

(3) When the timefiame of the conformity determination is shortened under Paramaph (2) of 

20.2.99.125.D NMAC. the conformitv determination must be accompanied by a regional emissions analvsis (for 

informational purposes onlv) for the last year of the transportation plan. 

H. "Baseline" scenario. The regional emissions analysis required by Subsections B and E of 

20.2.99.138 NMAC must estimate the emissions that would result from the "baseline" scenario in each analysis 

year. The "baseline" scenario must be defined for each of the analysis years. The "baseline" scenario is the future 

transportation system that will result from current programs, including the following (except that exempt projects 

listed m Subsection A of 20.2.99.149 NMAC and projects exempt fiom regional emissions analysis as listed in 

Subsection B of 20.2.99.149 NMAC need not be explicitly considered): 

(1) all in-place regionally significant highway and transit facilities, services and activities; 

(2) all ongolng travel demand management or transportation system management activities; and 

(3) completion of all regionally significant projects, regardless of funding source, which are currently 

under construction or are undergoing right-of-way acquisition (except for hardship acquisition and protective 

buying); come from the first year of the previously conforming transportation plan and/or TIP; or have completed 

the NEPA process. 

I. "Action" scenario. The regional emissions analysis required by Subsections B and E of 

20.2.99.138 NMAC must estimate the emissions that would result fiom the "action" scenario in each analysis year. 

The "action" scenario must be defined for each of the analysis years. The "action" scenario is the transportation 

system that would result from the implementation of the proposed action (transportation plan, TIP, or project not 

fiom a conforming transportation plan and TIP) and all other expected regionally significant projects in the 

nonattainrnent area The "action" scenario must include the following (except that exempt projects listed in 

Subsection A of 20.2.99.149 NMAC and projects exempt from regional emissions analysis as listed in Subsection B 

of 20.299.149 NMAC need not be explicitly considered): 

(1) all facilities, services, and activities in the "baseline" scenario; 

(2) completion of all TCMs and regionally significant projects (including facilities, services, and 

activities) specifically identified in the proposed transportation plan which will be operational or in effect in the 

analysis year, except that regulatory TCMs may not be assumed to begin at a future time unless the regulation is 

already adopted by the enforcing jurisdiction or the TCM is identified in the applicable implementation plan; 

(3) all travel demand management programs and transportation system management activities known 

to the WO, but not included in the applicable implementation plan or utilizing any federal funding or approval, 

which have been fully adopted and/or funded by the enforcing jurisdiction or sponsoring agency since the last 

conformity determination; 

(4) the incremental effects of any travel demand management programs and transportation system 

management activities known to the MPO, but not included in the applicable implementation plan or utilizing any 

federal funding or approval, which were adopted andior funded prior to the date of the last conformity 

determination, but which have been modified since then to be more stringent or effective; 

Proposed Revisions to 20.2.99 NMAC 
(5) completion of all expected regionally significant highway and transit projects which are not fiom 

a conforming transportation plan and TIP; and 

(6) completion of all expected regionally significant non-FHWAETA highway and transit projects 

that have clear funding sources and commitments leading toward their implementation and completion by the 

analysis year. 

J. Projects not from a conforming transportation plan and TIP. For the regional emissions analysis 

required by Subsections B and E of 20.2.99.138 NMAC, if the project which is not Erom a conforming transportation 

plan and TIP is a modification of a project currently in the plan or TIP, the "baseline" scenario must include the 

project with its original design concept and scope, and the "action" scenario must include the project with its new 

design concept and scope. 

[12/14/94; 11/23/98; 20.2.99.138 NMAC - Rn, 20 NMAC 2.99.138 10/31/02; A, 10/15/05; A, 07/16/07& 

xx/xx/081 

20.2.99.139 CONSEQUENCES OF CONTROL STRATEGY IMPLEMENTATION PLAN FAILURES. 

A. Disapprovals. 

(1) If US EPA disapproves any submitted control strategy implementation plan revision (with or 

without a protective finding), the conformity status of the transportation plan and TIP shall lapse on the date that 

highway sanctions as a result of the disapproval are imposed on the nonattainment area under Section 179(b)(l) of 

the CAA. No new transportation plan, TIP, or project may be found to conform until another control strategy 

implementation plan revision fulfilling the same CAA requirements is submitted and conformity to this submission 

is determined. 

(2) If US EPA disapproves a submitted control strategy implementation plan revision without making 

a protective finding, only projects in the first &we-@ fouryears of the currently conforming transportation plan 

and TIP or that meet the reauirements of Subsection B of 20.2.99.1 11 NMAC during the 12-month lapse mace 

period may be found to conform. This means that beginning on the effective date of a disapproval without a 

protective finding, no transportation plan, TIP, or project not in the first hee(3j four (4) years of the currently 

conforming transportation plan and TIP or that meets the reauirements of Subsection B of 20.2.99.11 1 NMAC 

during the 12-month lapse grace period may be found to conform until another control strategy implementation plan 

revision llfilling the same Clean Air Act requirements is submitted, US EPA finds its motor vehicle emissions 

budget(s) adequate pursuant to Section 20.2.99.137 NMAC or approves the submission, and conformity to the 

implementation plan revision is determined. 

(3) In disapproving a control strategy implementation plan revision, US EPA would give a protective 

finding where a submitted plan contains adopted control measures or written commitments to adopt enforceable 

control measures that fully satisfy the emissions reductions requirements relevant to the statutory provision for 

which the implementation plan revision was submitted, such as reasonable further progress or attainment. 

B. Failure to submit and incompleteness. In areas where US EPA notifies the department, MPO, and 

US DOT of the department's failure to submit a control strategy implementation plan or submission of an 

incomplete control strategy implementation plan revision (either of which initiates the sanction process under CAA 

Sections 179 or 110(m)), the conformity status of the transportation plan and TIP shall lapse on the date that 

highway sanctions are imposed on the nonattainment area for such failure under Section 179@)(1) of the CAA, 

unless the failure has been remedied and acknowledged by a letter from the US EPA regional administrator. 

C. Federal implementation plans. If US EPA promulgates a federal implementation plan that 

contains motor vehicle emissions budget(s) as a result of a department failure, the conformity lapse imposed by 

20.2.99.139 Nh4AC because of the department failure is removed. 

[12/14/94; 11/23/98; 20.2.99.139 NMAC - Rn, 20 NMAC 2.99.139 10/31/02; A, 10/15/05; A, xx/xx/08] 

20.2.99.140 REQUIREMENTS FOR ADOPTION OR APPROVAL OF PROJECTS BY OTHER 

RECIPIENTS OF FUNDS DESIGNATED UNDER TITLE 23 U.S.C. OR THE FEDERAL TRANSIT LAWS 

A. Except as provided in Subsection B of 20.2.99.140 Nh4AC, no recipient of federal funds 

designated under title 23 U.S.C. or the federal transit laws shall adopt or approve a regionally significant highway or 

transit project, regardless of funding source, unless the recipient finds that the requirements of one of the following 

are met: 

(1) the project comes Erom the currently conforming transportation plan and TIP (or meets the 

requirements of Subsection B of 20.2.99.1 11 NMAC during the 12-month lapse grace period), and the project's 

design concept and scope have not changed significantly from those that were included in the regional emissions 

analyses for that transportation plan and TIP; or 

Proposed Revisions to 20.2.99 NMAC 31 
(2) the project is included in the regional emissions analysis for the currently conforming 

transportation plan and TIP conformity determination (or meets the requirements of Subsection B of 20.2.99.1 11 

NMAC during the 12-month lapse mace periodl (even if the project is not strictly included in the transportation 

plan or TP for the purpose of MPO project selection or endorsement)* and the project's design concept and scope 

have not changed significantly from those which were included in the regional emissions analysis; or- 

(3) a new regional emissions analysis including the project and the currently conforming 

transportation plan and TIP demonstrates that the transportation plan and TIP would still conform if the project were 

implemented (consistent with the requirements of 20.2.99.137 NMAC and/or 20.2.99.138 NMAC for a project not . . 

from a conforming transportation plan and TIP). 

B. In isolated rural nonattainrnent and maintenance areas subject to Subsection G of 20.2.99.128 

NMAC, no recipient of federal hnds designated under title 23 U.S.C. or the federal transit laws shall adopt or 

approve a regionally significant highway or transit project, regardless of funding source, unless the recipient fmds 

that the requirements of one of the following are met: 

(1) the project was included in the regional emissions analysis supporting the most recent conformity 

determination that reflects the portion of the statewide transportation plan and TIP which are in the nonattainment or 

maintenance area, and the project's design concept and scope has not changed significantly; or 

(2) a new regional emissions analysis including the project and all other regionally signdicant 

projects expected in the nonattainment or maintenance area demonstrates that those projects in the statewide 

transportation plan and statewide TIP which are in the nonattainment or maintenance area would still conform if the 

project were implemented (consistent with the requirements of 20.2.99.1 37 NMAC and/or 20.2.99.13 8 NMAC for 

projects not from a conforming transportation plan and TIP). 

C. Notwithstanding Subsections A and B of Section 20.2.99.140 WC, in nonattainment and 

maintenance areas subject to Subsections J or K of Section 20.2.99.128 NMAC for a given pollutant/precursor and 

NAAQS, no recipient of federal funds designated under title 20 U.S.C. or the federal transit laws shall adopt or 

approve a regionally significant highway or transit project, regardless of hnding source. Unless the recipient finds 

that the requirements of one of the following are met for that pollutant/precursor and NAAQS: 

(1) the project was included in the most recent conformity determination for the transportation plan 

and TIP and the project's design concept and scope has not changed significantly; or 

(2) the project as included in the most recent conformity determination that reflects the portions of 

the statewide transportation plan and statewide TIP which are in the nonattainment or maintenance area, and the 

project's design concept and scope has not changed significantly. 

[1Z14/94; 11/23/98; 20.2.99.140 WC - Rn, 20NMAC 2.99.140 10/31/02; A, 10/15/05; A. xx/xx/08] 

20.2.99.141 PROCEDURES FOR DETERMINING REGIONAL TRANSPORTATION-RELATED 

POLLUTANT EMISSIONS - GENERAL REQUIREMENTS: 

A. The regional emissions analysis required by 20.2.99.137 NMAC and 20.2.99.138 Nh4AC for the 

transportation plan, TIP, or project not from a conforming plan and TIP shall include all regionally significant 

projects expected in the nonattainment or maintenance area, including FHWA/FTA projects proposed in the 

transportation plan and TIP, and all other regionally significant projects which are disclosed to the MPO as required 

by 20.2.99.1 16 NMAC through 20.2.99.124 NMAC. Projects which are not regionally significant are not required 

to be explicitly modeled, but vehicle miles traveled (VMT) from such projects shall be estimated in accordance with 

reasonable professional practice. The effects of TCMs and similar projects that are not regionally significant may 

also be estimated in accordance with reasonable professional practice. 

B. The emissions analysis may not include for emissions reduction credit any TCMs or other 

measures in the applicable implementation plan which have been delayed beyond the scheduled date(s) until such 

time as their implementation has been assured. If the measure has been partially implemented and it can be 

demonstrated that it is providing quantifiable emission reduction benefits, the emissions analysis may include that 

emissions reduction credit. 

C. Emissions reduction credit from projects, programs, or activities which require a regulatory action 

in order to be implemented may not be included in the emissions analysis unless: 

(1) The regulatory action is already adopted by the enforcing jurisdiction; 

(2) The project, program, or activity is included in the applicable implementation plan; 

(3) The control strategy'implementation plan submission or maintenance plan submission that 

establishes the motor vehicle emissions budget (s) for the purposes of 20.2.99.137 NMAC contains a written 

commitment to the project, program, or activity by the agency with authority to implement it; or 

Proposed Revisions to 20.2.99 NMAC 
(4) US EPA has approved an opt-in to a Federally enforced program, US EPA has promulgated the 

program (if the control program is a Federal responsibility, such as vehicle tailpipe standards), or the CAA requires 

the program without need for individual State action and without any discretionary authority for US EPA to set its 

stringency, delay its effective date, or not implement the program. 

E. Emissions reduction credit from control measures that are not included in the transportation plan 

and TIP and that do not require a regulatory action in order to be implemented may not be included in the emissions 

analysis unless the conformity determination includes written commitments to implementation from the appropriate 

entities. 

(1) Persons or entities voluntarily committing to control measures must comply with the obligations 

of such commitments. 

(2) The conformity implementation plan revision required in 40 CFR 5 1.390 must provide that 

written commitments to control measures that are not included in the transportation plan and TIP must be obtained 

prior to a conformity determination and that such commitments must be fulfilled. 

E. A regional emissions analysis for the purpose of satisfying the requirements of 20.2.99.138 

NMAC must make the same assumptions in both the "Baseline" and "Action" scenarios regarding control measures 

that are external to the transportation system itself, such as vehicle tailpipe or evaporative emission standards, limits 

on gasoline volatility, vehicle inspection and maintenance programs, and oxygenated or reformulated gasoline or 

diesel fuel. 

F. The ambient temperatures used for the regional emissions analysis shall be consistent with those 

used to establish the emissions budget in the applicable implementation plan. All other factors, for example the 

fraction of travel in a hot stabilized engine mode, must be consistent with the applicable implementation plan, unless 

modified after interagency consultation according to 20.2.99.120 NMAC to incorporate additional or more 

geographically specific information or represent a logically estimated trend in such factors beyond the period 

considered in the applicable implementation plan. 

G. Reasonable methods shall be used to estimate nonattainment or maintenance area VMT on offnetwork roadways within the urban transportation planning area, and on roadways outside the urban transportation 

planning area. 

[12/14/94; 11/23/98; 20.2.99.141 NMAC - Rn, 20 NMAC 2.99.141 10/31/02] 

20.2.99.142 PROCEDURES FOR DETERMINING REGIONAL TRANSPORTATION-RELATED 

POLLUTANT EMISSIONS --ANALYSIS IN SERIOUS, SEVERE, AND EXTREME OZONE 

NONA'ITAINMENT AREAS AND SERIOUS CARBON MONOXIDE AREAS: Regional emissions analyses 

must meet the requirements of subsections A through C of 20.2.99.142 NMAC if their metropolitan planning area 

contains an urbanized area population over two hundred thousand (200,000). 

A. By January 1, 1997, estimates of regional transportation-related emissions used to support 

conformity determinations must be made at a minimum using network-based travel models according to procedures 

and methods that are available and in practice and supported by current and available documentation. These 

procedures, methods, and practices are available from US DOT and will be updated periodically. Agencies must 

discuss these modeling procedures and practices through the interagency consultation process, as required by 

20.2.99.120 NMAC. Network-based travel models must at a minimum satisfy the following requirements: 

(1) Network-based models must be validated against observed counts (peak and off-peak, if possible) 

for a base year that is not more than ten (1 0) years prior to the date of the conformity determination. Model 

forecasts must be analyzed for reasonableness and compared to historical trends and other factors, and the results 

must be documented; 

(2) Land use, population, employment, and other network-based travel model assumptions must be 

documented and based on the best available information; 

(3) Scenarios of land development and use must be consistent with the future transportation system 

alternatives for which emissions are being estimated. The distribution of employment and residences for different 

transportation options must be reasonable; 

(4) A capacity-sensitive assignment methodology must be used, and emissions estimates must be 

based on a methodology which differentiates between peak and off-peak link volumes and speeds and uses speeds 

based on final assigned volumes; 

(5) Zone-to-zone travel impedances used to distribute trips between origin and destination pairs shall 

be in reasonable agreement with the travel times that are estimated from final assigned traffic volumes. Where use 

of transit currently is anticipated to be a significant factor in satisfying transportation demand, these times should 

also be used for modeling mode splits; and 

Proposed Revisions to 20.2.99 NMAC 
(6) Network-based travel models must be reasonably sensitive to changes in the time(s), cost(s), and 

other factors affecting travel choices. 

B. Reasonable methods in accordance with good practice must be used to estimate traffic speeds and 

delays in a manner that is sensitive to the estimated volume of travel on each roadway segment represented in the 

network-based traveI model. 

shall be considered 

C. Highway Performance Monitoring System 

the primary measure of VMT within the portion of 

(HPMS) estimates 

the nonattainment 

of vehicle miles traveled 

or maintenance 

0 

area and 

for the functional classes of roadways included in HPMS, for urban areas which are sampled on a separate urban 

area basis. For areas with network-based travel models, a factor (or factors) may be developed to reconcile and 

calibrate the network-based model estimates of VMT in the base year of its validation to the HPMS estimates for the 

same period. These factors may then be applied to model estimates of future VMT. In this factoring process, 

consideration will be given to differences between HFMS and network-based travel models, such as differences in 

the facility coverage of the HPMS and the modeled network description. Locally developed count based programs 

and other departures from these procedures are permitted subject to the interagency consultation procedures of 

20.2.99.120 NMAC. 

[12/14/94; 11/23/98; 20.2.99.142 NMAC - Rn, 20 NMAC 2.99.142 10/31/02] 

20.2.99.143 PROCEDURES FOR DETERMINING REGIONAL TRANSPORTION- RELATED 

POLLUTION EMISSIONS - TWO-YEAR GRACE PERIOD FOR REGIONAL EMISSIONS ANALYSIS 

REQUIREMENTS IN CERTAIN OZONE AND CO AREAS. The requirements of 20.2.99.142 NMAC apply in 

such areas or portions of such areas that have not previously been required to meet these requirements for any 

existing NAAQS two years from the following: 

A. the effective date of US EPA's reclassification of an ozone or CO nonattainment area that have an 

urbanized area population greater than 200,000 to serious or above; 

B. the official notice by the census bureau that determines the urbanized area population of a serious 

or above ozone or CO nonattainment area to be greater than 200,000; or 

C. the effective date of US EPA's action that classifies a newly designated ozone or CO 

nonattainment area that has an urbanized area population greater than 200,000 as serious or above. 

[12/14/94; 11/23/98; 20.2.99.143 NMAC - Rn, 20 NMAC 2.99.143, 10/31/02; 20.2.99.143 NMAC - N, 10/15/05] 

20.2.99.144 PROCEDURES FOR DETERMINING REGIONAL TRANSPORTATION- RELATED 

POLLUTANT EMISSIONS - AREAS WHICH ARE NOT SERIOUS, SEVERE OR EXTREME OZONE 

NONATTAINMENT AREAS OR SERIOUS CARBON MONOXIDE AREAS. In all areas not otherwise 

subject to 20.2.99.142 NMAC, regional emissions analyses must use those procedures described in 20.2.99.142 

NMAC if the use ofthose procedures has been the previous practice of the MPO. Otherwise, areas not subject to 

20.2.99.142 NMAC may estimate regional emissions using any appropriate methods that account for VMT growth 

by, for example, extrapolating historical VMT or projecting future VMT by considering growth in population and 

historical growth trends for VMT per person. These methods must also consider future economic activity, transit 

alternatives, and transportation system policies. 

[12/14/94; 11/23/98; 20.2.99.144 NMAC - Rn, 20 NMAC 2.99.144, 10M1/02; 20.2.99.144 NMAC - Rn, 

20.2.99.143 NMAC, 1011 5/05] 

202.99.145 PROCEDURES FOR DETERMINING REGIONAL TRANSPORTATION-RELATED 

POLLUTANT EMISSIONS - PMlO FXOM CONSTRUCTION-RELATED FUGITIVE DUST. 

A. For areas in which the implementation plan does not identify construction-related fugitive PMlO as a contributor to the nonattainment problem, the fugitive PMlO emissions associated with highway and transit 

project construction are not required to be considered in the regional emissions anaIysis. 

B. In PMlO nonattainment and maintenance areas with implementation plans which identify 

construction-related fugitive PM10 as a contributor to the nonattainment problem, the regional PMlO emissions 

analysis shall consider construction-related fugitive PMlO and shall account for the Ievel of construction activity, 

the fugitive PMlO control measures in the SIP, and the dust-producing capacity of the proposed activities. 

[12/14/94; 11/23/98; 20.2.99.145 NMAC - Rn, 20 NMAC 2.99.145, 10/31/02; 20.2.99.145 NMAC - Rn, 

20.2.99.144 NMAC, 1011 5/05] 

20.2.99.146 PROCEUDURES FOR DETERMINING REGIONAL TRANSPORTATION - RELATED 

POLLUTANT EMISSIONS - PM2.5 FROM CONSTRUCTION - RELATED FUGITIVE DUST. 

Proposed Revisions to 20.2.99 NMAC 34 
A. For PM2.5 areas in which the implementation plan does not identify construction-related fugitive 

PM2.5 as a significant contributor to the nonattainment problem, the fugitive PM2.5 emissions associated with 

highway and transit project construction are not required to be considered on the regional emissions analysis. 

B. In PM2.5 nonattainment and maintenance areas with implementation plans which identify 

construction-related fugitive PM2.5 as a significant contributor to the nonattainment problem, the regional PM2.5 

emissions analysis shall consider construction-related fugitive PM2.5 and shall account for the level of construction 

activity, the fugitive PM2.5 control measures in the applicable implementation plan, and the dust-producing capacity 

of the proposed activities. 

[12/14/94; 11/23/98; 20.2.99.146 NMAC - Rn, 20 NMAC 2.99.146, 10/31/02; 20.2.99.146 NMAC -N, 10/15/05] 

20.2.99.147 PROCEDURES FOR DETERMINING REGIONAL TRANSPORTATION-RELATED 

POLLUTANT EMISSIONS -- RELIANCE ON PREVIOUS REGIONAL EMISSIONS ANALYSIS. 

A. Conformity determinations for a new transportation plan andor TIP may be demonstrated to 

satisfy the requirements of Section 20.2.99.137 NMAC ("Motor vehicle emissions budget") or Section 20.2.99.138 

NMAC ("Emission reductions in areas without motor vehicle emissions budgets") without new regional emissions 

analysis if the regional emissions analysis if the previous regional emissions analysis also applies to the new plan 

and/or TIP. This requires a demonstration that: 

(1) the new plan and/or TIP contains all projects which must be started in the plan and TIP's 

timeframe in order to achieve the highway and transit system envisioned by the transportation plan; 

(2) all plan and TIP projects which are regionally significant are included in the transportation plan 

with design concept and scope adequate to determine their contribution to the transportation plan's andor TIP's 

regional emissions at the time of the previous conformity determination; and 

(3) the design concept and scope of each regionally significant project in the new plan andor TIP are 

not significantly different from that described in the previous transportation plan; and 

(4) the previous regional emissions analysis is consistent with the requirements of Section 

20.2.99.137 NMAC (including that conformity to all currently applicable budgets is demonstrated) andor Section 

20.2.99.1 3 8 NMAC, as applicable. 

B. A project which is not from a conforming transportation plan and a conforming TIP may be 

demonstrated to satisfy the requirements of 20.2.99.137 NMAC or 20.02.99.138 NMAC without additional regional 

emissions analysis if allocating funds to the project will not delay the implementation of projects in the 

transportation plan or TIP which are necessary to achieve the highway and transit system envisioned by the 

transportation plan, the previous regional emissions analysis is still consistent with the requirements of Section 

20.2.99.137NMAC (including that conformity to all currently applicable budgets is demonstrated) andor Section 

20.2.99.138 NMAC, as applicable, and if the project is either: 

(1) not regionally significant; or 

(2) included in the conforming transportation plan (even if it is not specifically included in the latest 

conforming TIP) with design concept and scope adequate to determine its contribution to the transportation plan's 

regional emissions at the time of the transportation plan's conformity determination, and the design concept and 

scope of the project is not significantly different from that described in the transportation plan. 

C. A conformity determination that relies on this section (20.2.99.147 NMAC) does not satisfy the 

frequency requirements of Sections 20.2.99.1 12 NMAC and 20.2.99.1 13 NMAC. 

[12/14/94; 11/23/98; 20.2.99.147 NMAC - Rn, 20 NMAC 2.99.147, 10/31/02; 20.2.99.147NMAC - Rn, 

20.2.99.145 NMAC &A, 10/15/05] 

20.2.99.148 PROCEDURES FOR DETERMINING LOCALIZED CO, PMlO AND PM2.5 

CONCENTRATIONS (HOT-SPOT ANALYSIS). 

A. CO Hot-spot Analysis. 

(1) The demonstrations required by 20.2.99.1 35 Nh4AC shall be based on quantitative analysis using 

the applicable air quality models, data bases, and other requirements specified in 40 CFR part 51 appendix W 

("Guideline on Air Quality Models"). These procedures shall be used in the following cases, unless, different 

procedures developed through the interagency consultation process required in 20.2.99.1 16 NMAC through 

20.2.99.124 NMAC and approved by the EPA region 6 administrator are used: 

(a) for projects in or affecting locations, areas, or categories of sites which are identified in the 

SIP as sites of violation or possible violation; 

(b) for projects affecting intersections that are at level-of-service D, E, or F, or those that will 

change to level-of-service D, E, or F because of increased traffic volumes related to the project; 

Proposed Revisions to 20.2.99 NMAC 
(c) for any project affecting one or more of the intersections which the SIP identifies as the top 

three intersections in the nonattainment or maintenance area based on the highest traffic volumes; and 

(d) for any project affecting one or more of the intersections which the SIP identifies as the top 

three intersections in the nonattainment or maintenance area based on the worst level of service. 

(2) In cases other than those described in Paragraph (1) of Subsection A of 20.2.99.146 NMAC, the 

demonstrations reuuired bv 20.2.99.135 NMAC mav be based on either: 

(a) quantitative methods that represent reasonable and common professional practice; or 

@) a qualitative consideration of local factors, if this can provide a clear demonstration that the 

requirements of 20.2.99.135 NMAC are met. 

(3) US DOT, in consultation with US EPA mav also choose to make a categorical hot-mot finding 

that Subsection A of 20.2.99.135 NMAC is met without further hot-spot analysis for anv ~roiect described in 

Paragraphs (11 and (2) of this subsection (20.2.99.148.A NMAC) based on appropriate modeling. US DOT, in 

consultation with US EPA. mav also consider the current air sualitv circumstances of a given CO nonattainment or 

maintenance area in categorical hot-spot findings for applicable FHWA or FTA projects. 

B. PMlO and PM2.5 Hot-spot Analysis. 

(1) The hot-spot demonstration required by 20.2.99.135 NMAC shall be based on quantitative 

analysis methods for the following types of projects: 

(a) new highway projects that have a significant number of 

iff diesel vehicles, and expanded hi~hwav vroiects that have a significant increase in the number of diesel vehicles; 

@) projects affecting intersections that are at level-of-service D, E, or F with a significant 

number of diesel vehicles, or those that will change to level-of-service D, E, or F because of increased traffic 

volumes from a significant number of diesel vehicles related to the project; and 

(c) new bus and rail terminals and transfer points which have a significant number of diesel . vehicles congregating at a single location; 

(d) expanded bus and rail terminals and transfer points that significantly increase the number of 

diesel vehicles congregating at a single location; and 

(e) projects in or affecting locations, areas, or categories of sites which are identified in the 

PMlO or PM2.5 applicable implementation plan submission, as appropriate, as sites of violation or possible 

violations. 

(2) Where quantitative analysis methods are not required, the demonstration required by 20.2.99.135 

NMAC for projects described in Paragraph (I) of Subsection B of this Section must be based on a qualitative 

consideration of local factors. 

(3) US DOT, in consultation with EPA, may also choose to make a categorical hot-spot finding that 

Section 20.2.99.135 NMAC is met without further hot-spot analysis for any project described in Paragraph (1) of 

Subsection B of this Section based on appropriate modeling. US DOT, in consultation with EPA, may also consider 

the current air quality circumstances of a given PM2.5 or PMlO nonattainment or maintenance area in categorical 

hot-spot findings for applicable FHWA or FTA projects. 

(4) The requirements of this Subsection B of 20.2.99.146 NMAC for quantitative analysis will not 

take effect until EPA releases modeling guidance on this subject and announces in the federal register that these 

requirements are in effect. 

C. General Requirements. 

(1) Estimated pollutant concentrations shall be based on the total emissions burden which may result 

from the implementation of the project, summed together with future background concentrations. The total 

concentration shall be estimated and analyzed at appropriate receptor locations in the area substantially affected by 

the project. 

(2) Hot-spot analyses shall include the entire project, and may be performed only after the major 

design features which will significantly impact concentrations have been identified. The future background 

concentration should be estimated by multiplying current background by the ratio of future to current traffic and the 

ratio of future to current emission factors. 

(3) Hot-spot analysis assumptions shall be consistent with those in the regional emissions analysis for 

those inputs which are required for both analyses. 

(4) CO, PMlO or PM2.5 mitigation or control measures shall be assumed in the hot-spot analysis 

only where there are written commitments from the project sponsor or operator to implement such measures, as 

required by Subsection A of 20.2.99.148 NMAC. 

(5) CO, PM10, and PM2.5 hot-spot analyses are not required to consider construction-related 

activities which cause temporary increases in emissions. Each site which is affected by construction- related 

Proposed Revisions to 20.2.99 NMAC 
activities shall be considered separately, using established "Guideline" methods. Temporary increases are defined as 

those which occur only during the construction phase and last five years or less at any individual site. 

[12/14/94; 11/23/98; 20.2.99.148 NMAC - RII, 20 NMAC 2.99.148, lOI31/02; 20.2.99.148 NMAC - Rn, 

20.2.99.146, 10/15/05; A, 07/16/07; A xx/xx/O8] 

20.2.99.149 USlNG THE MOTOR VEHICLE EMISSIONS BUDGET IN THE SIP (OR 

IMPLEMENTATION PLAN SUBMISSION). 

A. In interpreting an SIP (or implementation plan submission) with respect to its motor vehicle 

emissions budget(s), the MPO (or NMDOT in the absence of an MPO) and the US DOT may not infer additions to 

the budget(s) that are not explicitly intended by the implementation plan (or submission). Unless the 

implementation plan explicitly quantifies the amount by which motor vehicle emissions could be higher while still 

allowing a demonstration of compliance with the milestone, attainment, or maintenance requirement and explicitly 

states an intent that some or all of this additional amount should be available to the MPO (or NMDOT in the absence 

of an MPO), and the US DOT, in the emission budget for conformity purposes, neither the h4PO (or NMDOT in the 

absence of an MPO) nor US DOT may interpret the budget to be higher than the implementation plan's estimate of 

future emissions. This applies in particular to SIPS (or submissions) which demonstrate that after implementation of 

control measures in the implementation plan: 

(1) emissions fiom aU sources will be less than the total emissions that would be consistent with a 

required demonstration of an emissions reduction milestone; 

(2) either emissions from all sources will result in achieving attainment prior to the attainment 

deadline, andor ambient concentrations in the attainment deadline year will be lower than needed to demonstrate 

attainment; or 

(3) emissions will be lower than needed to provide for continued maintenance. 

B. A conformity demonstration shall not trade emissions among budgets which the SIP (or 

implementation plan submission) allocates for different pollutants or precursors, or among budgets allocated to 

motor vehicles and other sources, unless the implementation plan establishes appropriate mechanisms for such 

trades. 

C. If the applicable SIP (or implementation plan submission) estimates future emissions by 

geographic subarea of the nonattainment area, the MPO (or NMDOT in the absence of an MPO), and the US DOT 

&e notrequired to consider this to establish subarea budgets, unless the SIP (or implementation plan submission) 

explicitly indicates an intent to create such subarea budgets for the purposes of conformity. 

D. If a nonattainment area includes more than one MPO, the applicable SIP may establish motor 

vehicle emissions budgets for each MPO. Otherwise, the MPOs shall collectively make a conformity determination 

for the entire nonattainment area. 

[1U14/94; 11/23/98; 20.2.99.149 NMAC - Rn, 20 NMAC 2.99.149, 10/31/02; 20.2.99.149 NMAC - Rn, 

20.2.99.147 NMAC & A, 10/15/05] 

20.2.99.150 ENFORCEABILITY OF DESIGN CONCEPT AND SCOPE AND PROJECT-LEVEL 

MITIGATION AND CONTROL MEASURES. 

A. Prior to determining that a transportation project is in conformity, the MPO, other recipient of 

funds designated under title 23 U.S.C. or the federal transit laws, FHWA, or FTA must obtain from the project 

sponsor andor operator written commitments to implement in the construction of the project and operation of the 

resulting facility or service any project-level mitigation or control measures which are identified as conditions for 

NEPA process completion with respect to local CO, PM10, or PM2.5 impacts. Before a conformity determination is 

made, written contractual commitments must also be obtained for project-level mitigation or control measures which 

are conditions for making conformity determinations for a transportation plan or TLP and included in the project 

design concept and scope which is used in the regional emissions analysis required by 20.2.99.137 NMAC and 

20.2.99.138 NMAC or used in the project-level hot-spot analysis required by 20.2.99.135 NMAC. 

B. Project sponsors voluntarily committing to mitigation measures to facilitate positive conformity 

determinations shall provide written contractual commitments and must comply with the obligations of such 

commitments. 

C. Written contractual commitments to mitigation or control measures shall be obtained prior to a 

positive conformity determination, and project sponsors must comply with such commitments. 

D. If the h4PO or project sponsor believes the mitigation or control measure is no longer necessary 

for conformity, the project sponsor or operator may be relieved of its obligation to implement the mitigation or 

control measure if it can demonstrate that the applicable hot-spot requirements of 20.2.99.135 NMAC, emission 

Proposed Revisions to 20.2.99 NMAC 37 
1 budget requirements of 20.2.99.137 NMAC, and interim emissions requirements of 20.2.99.138 NMAC are satisfied 

without the mitigation or control measure, and so notifies the agencies involved in the interagency consultation 

process required under 20.2.99.1 16 NMAC through 20.2.99.124 NMAC. The MPO (or NMDOT in the absence of 

an MPO) and US DOT must find that the transportation plan and TIP still satisfy the applicable requirements of 

20.2.99.137 NMAC and 20.2.99.138 NMAC and that the project still satisfies the requirements of 20.2.99.135 

NMAC and therefore that the conformity determinations for the transportation plan, TIE', and project are still valid. 

This finding is subject to the applicable public consultation requirements in 20.2.99.124 NMAC for conformity 

determinations for projects. 

[12/14/94; 1 1/23/98; 20.2.99.150 MvIAC - Rn, 20 MvIAC 2.99.150, 10/31/02; 20.2.99.150 NMAC - Rn, 

20.2.99.148 NMAC &A, 10/15/05; A. xx/xx/O8] 

20.2.99.151 EXEMPTIONS. 

A. Exempt projects. Notwithstanding the other requirements of this part, highway and transit projects 

of the types listed in Table 2 of this section are exempt from the requirement to determine conformity. Such projects 

may proceed toward implementation even in the absence of a conforming transportation plan and TIP. A particular 

action of the type listed in Table 2 (of this section) is not exempt if the MFO in consultation with other agencies 

(e.g. the department, see Subsection C of 20.2.99.120 NMAC, the US EPA, and the FHWA (in the case of a 

highway project) or the FTA (in the case of a transit project)) concur that it has potentially adverse emissions 

impacts for any reason. NMDOT and the MFO, in consultation with the department, as appropriate, must assure 

that exempt projects do not interfere with TCM implementation. Table 2 follows. Table 2. Exempt Projects. 

(1) Safety: 

(a) railroadhighway crossing; 

(b) hVP .. . rojects that correct. improve. or eliminate a hazardous 

location or feature; 

(c) safer non-federal-aid system roads; 

(d) shoulder improvements; 

(e) increasing sight distance; 

(f) -highway safety improvement program implementation; 

(g) traffic control devices and operating assistance other than signalization projects; 

(h) railroadhighway crossing warning devices; 

(i) guardrails, median baniers, crash cushions; 

0) pavement resurfacing or rehabilitation; 

(k) ,-..,,,e,,,l,,, pavement marking; 

(1) emergency relief (23 U.S.C. 125); 

(m) fencing; 

(n) skid treatments; 

(0) safety roadside rest areas; 

@) adding medians; 

(q) truck climbing lanes outside the urbanized area; 

(r) lighting improvements; 

(s) widening narrow pavements or reconstructing bridges (no additional travel lanes); 

(t) emergency truck pullovers. 

(2) Mass transit: 

(a) operating assistance to transit agencies; 

(b) purchase of support vehicles; 

(c) rehabilitation of transit vehicles (In PM10 and PM2.5 nonattainment or maintenance areas, 

only if projects are in compliance with control measures in the SIP.); 

(d) purchase of office, shop, and operating equipment for existing facilities; 

(e) purchase of operating equipment for vehicles (e.g., radios, fareboxes, lifts, etc.); 

(f) construction or renovation of power, signal, and communications systems; 

(g) construction of small passenger shelters and information kiosks; 

(h) reconstruction or renovation of transit buildings and structures (e.g., rail or bus buildings, 

storage and maintenance facilities, stations, terminals, and ancillary structures); 

(i) rehabilitation or reconstruction of track structures, track, and trackbed in existing rights-ofProposed Revisions to 20.2.99 NMAC 38 
(j) purchase of new buses and rail cars to replace existing vehicles or for minor expansions of 

the fleet (In PM10 nonattainment or maintenance areas, such projects are exempt only if projects are in compliance 

with control measures in the SIP.); 

O construction of new bus or rail storagelmaintenance facilities categorically excluded in 23 

CFR 771. 

(3) Air quality: 

(a) continuation of ride-sharing and van-pooling promotion activities at current levels; 

@) bicycle and pedestrian facilities. 

(4) Other: 

(a) specific activities which do not involve or lead directly to construction, such as: 

(i) planning and technical studies; 

(ii) grants for training and research programs; 

(ii) planning activities conducted pursuant to titles 23 and 49 U.S.C.; or 

(iv) federal-aid systems revisions; 

@) engineering to assess social, economic, and environmental effects of the proposed action or 

alternatives to that action; 

(c) noise attenuation; 

(d) emergency or hardship advance land acquisitions (23 CFR 710.503); 

(e) acquisition of scenic easements; 

(0 platings, landscaping, etc.; 

(g) sign removal; 

(h) directional and informational signs; 

(i) transportation enhancement activities (except rehabilitation and operation of historic 

transportation buildings, structures, or facilities); 

(j) repaix of damage caused by natural disasters, civil unrest, or terrorist acts, except projects 

involving substantial functional, locational, or capacity changes. 

B. Projects exempt from regional emissions analyses. Notwithstanding the other requirements of this 

part, highway and transit projects of the types listed in Table 3 of this section are exempt from regional emissions 

analysis requirements. The local effects of these projects with respect to CO concentrations must be considered to 

determine if a hot-spot analysis is required prior to making a project-level conformity determination. The local 

effects of projects with respect to PMlO and PM2.5 concentrations must be considered and a hot-spot analysis 

performed prior to making a project-level conformity determination, if a project in Table 3 also meets the criteria of 

Paragraph (1) of Subsection B of Section 20.2.99.148 NMAC. These projects may then proceed to the project 

development process even in'the absence of a conforming transportation plan and TIP. A particular action of the 

type listed in Table 3 (of this section) is not exempt from regional emissions analysis if the MPO in consultation 

with other agencies (e.g. the department, see Subsection C of 20.2.99.120 NMAC), the US EPA, and the FHWA (in 

the case of a highway project) or the FTA (in the case of a transit project) concur that it has potential regional 

impacts for any reason. Table 3 follows. Table 3. Projects Exempt from Regional Emissions Analyses: 

(1) intersection channelization projects; 

(2) intersection signalization projects at individual intersections; 

(3) interchange reconfiguration projects; 

(4) changes in vertical and horizontal alignment; 

(5) truck size and weight inspection stations; 

(6) bus terminals and transfer points. 

[12/14/94; 11/23/98; 20.2.99.151 NMAC - Rn, 20 NMAC 2.99.151, 10131/02; 20.2.99.151 NMAC - Rn, 

20.2.99.149 NMAC & A, 10/15/05; A, 07/16/07] 

20.2.99.152 TWFIC SIGNAL SYNCHRONIZATION PROJECTS. Traffic signal synchronization 

projects may be approved, funded, and implemented without satisfying the requirements of this part. However, all 

subsequent regional emissions analyses required by 20.2.99.137 NMAC and 20.2.99.138 NMAC for transportation 

plans, TIPS, or projects not from a conforming plan and TIP must include such regionally significant traffic signal 

synchronization projects. 

I20.2.99.152 NMAC - Rn, 20.2.99.150 NMAC, 10/15/05] 

20.2.99.153 SPECIAL EXEMPTIONS FROM CONFORMITY REQULREMENTS FOR PILOT 

PROGRAM AREAS. EPA and NMDOT may exempt no more than six areas for no more than three years from 

Proposed Revisions to 20.2.99 NMAC 39 
certain requirements of this subpart if these areas are selected to participate in a conformity pilot program and have 

developed alternative requirements that have been approved by EPA as an implementation plan revision in 

accordance with 40 CFR part 5 1.390. For the duration of the pilot program, areas selected to participate in the pilot 

program must comply with the conformity requirements of the pilot area's implementation plan revision for 451.390 

of this chapter and aI1 other requirements in 40 CFR parts 51 and 93 that- are not covered by the pilot area's 

implementation plan revision for 40 CFR part 5 1.390. The alternative conformity requirements in conjunction with 

any applicable state and/or federal conformity requirements must be proposed to fuLfill all of the requirements of and 

achieve results equivalent to or better than Section 176(c) of the Clean Air Act. After the three-year duration of the 

pilot program has expired, areas will again be subject to all of the requirements of this subpart and 40 CFR part 51, 

subpart T, and/or to the requirements of any implementation plan revision that was previously approved by EPA in 

accordance with 40 CFR part 51.390. 

[20.2.99.153 NMAC - N, 10/15/05] 

20.2.99.154 SAVINGS PROVISION. The federal conformity rules under 40 CFR part 93 subpart A, in 

addition to any existing applicable state requirements, establish the conformity criteria and procedures necessary to 

meet the requirements of CAA Section 176(c) until such time as this conformity implementation plan revision is 

approved by EPA. Following EPA approval of this revision to the SIP (or a portion thereof) the approved (or 

approved portion of the) department's criteria and procedures would govern conformity determinations and the 

federal conformity regulations contained in 40 CFR part 93 would apply only for the portion, if any, of the 

department's conformity provisions that is not approved by EPA. In addition, any previously applicable SIP 

requirements relating to conformity remain enforceable until the department revises its SIP to specifically remove 

them and that revision is approved by EPA. 

[20.2.99.154 NMAC - Rn, 20.2.99.151 NMAC, 10/15/05] 

HISTORY OF 20.2.99 NMAC: 

Pre-NMAC History: None. 

History of Repealed Material: [RESERVED] 

Other History: 

20 NMAC 2.99, Conformity To The State Implementation Plan Of Transportation Plans, Programs, And Projects, 

filed 11/14/94 was replaced by 20 NMAC 2.99, Conformity To The State Implementation Plan Of Transportation 

Plans, Programs, And Projects, filed 10123198. 

20 NMAC 2.99, Conformity To The State Implementation Plan Of Transportation PI&, Programs, And Projects, 

filed 10123198 was renumbered, reformatted and replaced by 20.2.99 NMAC, Conformity To The State 

Implementation Plan Of Transportation Plans, Programs, And Projects, effective 1013 1/02. 

20.2.99 NMAC, Conformity To The State Implementation Plan of Transportation Plans, Programs, And Projects 

filed 1013 1/02 was revised; renumbered; and replaced by 20.2.99 NMAC, Conformity To The State Implementation 

Plan of Transportation Plans, Programs, And Projects, effective 10115105. 

Proposed Revisions to 20.2.99 NMAC 
Thursday, 

January 24, 2008 

Part IV 

Environmental 

Protection Agency 

40 CFR Parts 51 and 93 

Transportation Conformity Rule 

Amendments To Implement Provisions 

Contained in the 2005 Safe, Accountable, 

Flexible, Efficient Transportation Equity 

Act: A Legacy for Users (SAFETEA-LU); 

Final Rule 
4420 Federal Register / Vol. 73, No. 16 / Thursday, January 24, 2008 /Rules and Regulations 

ENVIRONMENTAL PROTECTION that are not related to SAFETEA-LU, Traverwood Road, Ann Arbor, M 

AGENCY such as allowing the Department of 48105, e-mail address: 

Transportation (DOT) to make berry.laura8epa.gov. telephone number: 40 CFR Parts 51 and 93 categorical hot-spot findings for (734) 2144858, fax number: (734) 214- 

[EPA-HQ-OAR-2D06-0612; FRL-851=] appropriate projects in carbon 4052, or Rudy Kapichak, State Measures 

monoxide nonattainment and and Conformity Group, Transportation RIN 2060-AN82 maintenance areas. and Regional Programs Division, 

Transportation Conformity Rule EPA has consulted with DOT, and Environmental Protection Agency, 2000 

Amendments To Implement Provisions they 'Oncur with this Traverwood Road, Ann Arbor, MI 

Contained in the 2005 Safe, DATES: Effective Date: This final rule is 48lo5~ e-mail address: 

Accountable, Flexible, Efficient effective on February 25. 2008. kapichak.rudolph@epa.gov, telephone 

Transportation Equity Act: A Legacy ADDRESSES: EPA has established a number: (734) 214-4574, fax number: 

for Users (SAFETEA-LU) docket for this action under Docket ID (734) 214--4052. 

AGENCY: Environmental Protection No. EPA-HQaAR-20064612. All SUPPLEMENTARY INFORMATION: The 

Agency (EPA). documents in the docket are listed on contents of this preamble are listed in 

the www.regulations.gov Web site. the following outline: ACTION: Final rule. Although listed in the index, some I. General Information 

SUMMARY: In this action, EPA is information is not publicly available, n. ~~~k~~

amending the trmsportation conformity e.g., confidential business information UI. Frequency of Conformity Determinations 

rule to finalize provisions that were (CBI) or other information whose N. Deadline for Conformity Determinations 

proposed on May 2, 2007. The Clean Air disclosure is restricted by statute. When a New Budget Is Established 

Act requires federally supported Certain other material, such as V. Lapse Grace Period 

transPofiation plans, transportation copyrighted material, is not placed on 'I. Timehames 

Determinations improvement programs, and projects to the Internet and will be publicly W. Conformity SIPS 

be consistent with ("codorm toH) the available only in hard copy form. Vm. Transportation Contml Measure 

purpose of the state air quality Publicly available docket materials are Substitutions and Additions 

implementation plan. Most of these available either electronic all^ though IX. Categorical HoPLSpot Findings for Projects 

amendments are necessary to make the ~Je~1ationor in hard COPY at in Carbon Monoxide Nonattainment and 

rule consistent with Clean Air Act the Air Docket, EPAIDC, EPA West Maintenance Areas 

section 176(c) as amended by Building, Room 3334, 1301 Constitution X. Removal of Regulation 40 

SAFETEA-LU on ~~~~~t 10, 2005 (pub, Ave., NW., Washington, DC. The Public 93.109[e)[2)(~) 

L. 1,-,9-59), including changes to the Reading Room is open from 8:30 a.m. to 'I. 

XII. Statutory and Execunve Order Reviews regulations to reflect that the Clean Air 4:3O P.m., thugh Friday* 

~~t now provides more time for state excluding legal holidays. The telephone I. General Information 

and local governments to meet number for the Public Reading Room is A. Does This Action Apply to Me? conformity requirements, provides a (202) 566-1744. and the telephone 

one-year grace period before the number for the Air Docket is (202) 566- t ti ti^^ regulated by the 

consequences of not meeting certain IT*z. conformity rule are those that adopt, 

conformity requirements apply, allows FOR FURTHER INFORMATION CONTACT: approve, or fund transportation plans, 

the option of shortening the timeframe Laura Berry, State Measures and programs, or projects under title 23 

of conformity determinations, and Conformity Group, Transportation and U.S.C. or title 49 U.S.C. Regulated 

streamlines other provisions. This final Regional Programs Division, categories and entities affected by 

rule also includes minor amendments Environmental Protection Agency, 2000 today's action include: 

Category I Examples of regulated entities 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this final rule. This table 

lists the types of entities of which EPA 

'is aware that potentially could be 

regulated by the transportation 

conformity rule. Other types of entities 

not listed in the table could also be 

regulated. To determine whether your 

organization is regulated by this action, 

you should carefully examine the 

applicability requirement. in 40 CFR 

93.102. If you have questions regarding 

the applicability of this action to a 

Local government ................................. State government ................................. Federal government ............................. 

particular entity, consult the persons 

listed in the preceding FOR FURTHER 

INFORMATION CONTACT section. 

Local transportation and air quality agencies, including metropolitan planning organizations (MPOs). 

State transportation and air quality agencies. 

Department of Transportation (Federal Highway Administration (FHWA) and Federal Transit Administration (FTA)). 

B. How Can I Get Copies of This 

Document? 

1. Docket 

EPA has established an official public 

docket for this action under Docket ID 

No. EPA-HQaAR-20064612. You can 

get a paper copy of this Federal Register 

document, as well as the documents 

specificaIly referenced in this action, 

any public comments received, and 

other information related to this action 

at the official public docket. See 

ADDRESSES section for its location. 

2. Electronic Access 

You may access this Federal Register 

document electronically through EPA's 

Transportation Conformity Web site at 

You may also access th;s document 

electronically under the Federal 

Register listings at hffp://www.epa.gov/ 

fe drgstr/. 

An electronic version of the official 

public docket is available through 

www.regulations.gov. You may use 
The rest of this Federal Register is not included

in this document because it is available in

several web sites including the EPA Federal

Register Environmental Documents web site at 

http://www.epa.gov/fedrgstr/ and the

Regulations.gov web site at 

http://www.regulations.gov

in the docket for the Federal Register.
PUBLIC LAW 109-59-AUG. 10,2005 

SAFE, ACCOUNTABLE,. FLEXIBLE, EFFICIENT 

TRANSPORTATION EQUITY ACT: A LEGACY 

FOR USERS 
119 STAT. 1144 PUBLIC LAW 109-59-AUG. 10,2005 

Public Law 109-59 

109th Congress 

An Act 

Aug. 10,2005 

CKR 31 

Safe, 

~ccountabie, 

Flexible. Efiieient 

~ran~htion 

Equity Act: A 

Legacy for Users. 

Intergovernmental 

relations. 

23 USC 101 note. 

To authorize funds for Federal-aid highways, highway safety programs, and tramit 

programs, and for other purposes. 

Be it enacted by the Senate and House of Representatives of 

the United States ofAmerica in Congress assembled, 

SECTION 1. SHORT TTIZE; TABLE OF CONTENTS. 

(a) SHORT TITLE.-T~~s Act mav be cited as the "Safe. Accountr 

able, Flexible, Efficient ~rans~ortation Equity Act: A ~e~ac~ for 

Users" or "SAFETEA-LU". 

(b) TABLE OF CONTENTS.-The table of contents for this Act 

is as'f6llows: 

Sec. 1. Short title; table of contents. 

Sec. 2. General definitions. 

TITLE I-FEDERAL-AID HIGHWAYS 

Subtitle A-Authorization of Programs 

Sec. 1101. Authorization of appropriahons. 

Sec. 1102. Obligation ceiling. 

Sec. 1103. Apportionments. 

Sec. 1104. Equity bonus program. 

Sec. 1105. Revenue aligned budget authority. 

Sec. 1106. Future Interstate System mutes. 

Sec. 1107. Metropolitan planning. 

Sec. 1108. Transfer of highway and transit funds. 

Sec. 1109. Recreational trails. 

Sec. 1110. Temporary kafiic control devices. 

Sec. 1111. Set-asides for Interstate discretionary projects. 

Sec. 1112. Emergency relief. 

Sec. 1113. Surface transportation program. 

Sec. 1114. Highway bridge program. 

Sec. 1115. Highwa use tax evasion pmjeds. 

Sec. 1116. ~~~alacKian development highway system. 

Sec. 1117. Transportation, community, and system preservation program. 

Sec. 1118. Territorial highway program. 

Sec. 1119. Federal lands highways. 

Sec. 1120. Puertm Rim highway program. 

Sec. 1121. HOV facilities. 

Sec. 1122. Definitions. 

Subtitle B--Congestion Relief 

Sec. 1201. Real-time system management information program. 

Subtitle C-Mobility and Efficiency 

Sec. 1301. Projects of national and regional significance. 

Sec. 1302. National corridor inftastructure improvement program 

See. 1303. Coordinated border infrastructure proyam. 

Sec. 1304. High priority corridors on the Nationa Eghway System. 

Sec. 1305. Truck parking facilities. 

Sec. 1306. Freight intermodal dishibution pilot grant program. 

Sec. 1307. Deployment of magnetic levitation transportation projects. 
PUBLIC LAW 109-59-AUG. 10,2005 119 STAT. 1145 

Sec. 1308. Delta region transportation development program. 

Sec. 1309. Extension of public transit vehicle exemption from axle weight restrictions. 

See. 1310. Interstate oasis program. 

Subtitle D-Highway Safety 

Sec. 1401. Highway safety improvement program. 

See. 1402. Worker injury prevention and free flow of vehicular traffic. 

Sec. 1403. Toll facilities workplace safety study. 

Sec. 1404. Safe mutes to school program. 

Sec. 1405. Roadway safety improvements for older drivers and pedestrians. 

Sec. 1406. Safety incentive grants for use of seat belts. 

Sec. 1407. Safe'ty incentives to prevent operation of motor vehicles by intoxicated 

Sec. 1408. fiF,"o?~ent or replacement of highway features on National Highway 

System. 

See. 1409. W-ork zone safety grants. 

Sec. 1410. National Work Zone Safety Information Clearinghouse. 

See. 1411. Roadwav safetv. 

Sec. 1412. Idling &duction facilities in Interstate rightsdf-way. 

SubQtle E--Construction and Contract Efficiency 

Sec. 1501. Pro am efficiencies. 

Sec. 1502. Higrwa s for LIFE pilot program. 

Sec. 1503. Design guild. 

Subtitle F-Finance 

Sec. 1601. Transportation Infrastructure Finance and Innovation Act amendments. 

Sec. 1602. State infrastructure banks. 

Sec. 1603. Use of excess funds and funds for inactive projects. Sec. 1604. Tolling. 

Subtitle G-High Priority Projects 

Sec. 1701. High Priority Projects program. 

Sec. 1702. Project authorizations. 

Sec. 1703. Technical amendments to transportation projects. 

Subtitle H-Environment 

Sec. 1801. Construction of ferry boats and ferry terminal facilities. 

Sec. 1802. National Scenic Byways Program. 

Sec. 1803. America's Byways Resource Center. 

Sec. 1804. National historic covered bridge preservation. 

Sec. 1805. Use of debris from demolished bridges and overpasses. 

Sec. 1806. Additional authorization of contract authority for States with Indian res- ervations. 

Sec. 1807. Nonmotorized transportation pilot program. 

Sec. 1808. Addition to CMAQ-eligible projects. 

Subtitle I-Miscellaneous 

Sec. 1901. Inclusion of requirements for signs identifying funding sources in title 

23. 

Sec. 1902. Donations and credits. 

Sec. 1903. Inclusion of Buy America requirements in title 23. 

Sec. 1904. Stewardship and oversight. 

Sec. 1905. Transportation develo ment credits. 

Sec. 1906. Grant program to progbit racial profiling. 

Sec. 1907. Pavement marking systems demonstration projects. 

Sec. 1908. Inclusion of certain route segments on Interstate System and NHS. 

Sec. 1909. Future of surface bsportation system. 

Sec. 1910. Motorist information concerning full service restaurants. 

Sec. 1911. Approval and funding for certain construction projects. 

Sec. 1912. Lead agency designation. 

Sec. 1913. Bridge construction, North Dakota. 

Sec. 1914. Motorcyclist Advisory Council. Sec. 1915. Loan forgiveness. 

Sec. 1916. Treatment of off-ramp. 

Sec. 1917. Opening of Interstate ramps. 

Sec. 1918. Credit to State of Louisiana for State matching funds. 

Sec. 1919. Road user fees. 

Sec. 1920. Transportation and local workforce investment. 
119 STAT. 1146 PUBLIC LAW 109-59-AUG. 10,2005 

Sec. 1921. Update of obsolete text. 

Sec. 1922. Technical amendments to nondiscrimination section. 

Sec. 1923. Transportation assets and needs of Delta region. Sec. 1924. Alaska Way Viaduct study. Sec. 1925. Cornmunitv enhancement studv. 

Sec. 1926. Budget ju~hication. 

Sec. 1927. 14th Amendment Highway and 3rd Infantry Division Highway. 

Sec. 1928. Sense of Congress regarding Buy America. 

See. 1929. Designation of Daniel Patrick Moynihan Interstate Highway. See. 1930. Designation of Thomas P. 'Ti O'Neill, Jr. Tunnel. 

Sec. 1931. Richard Nixon Parkway, california. 

Sec. 1932. Amo Houghton Bypass. 

Sec. 1933. Billy Tauzin Energy Corridor. 

Sec. 1934. Transportation improvements. Sec. 1935. Proiect flexibilitv. 

Sec, 1936. AdGances. - 

Sec. 1937. Roads in closed basins. 

See. 1938. Technology. Sec. 1939. BIA Indian Road Program. 

Sec. 1940. Going-to-the-Sun Road, Glacier National Park, Montana. 

Sec. 1941. Beartooth Hi way, Montana. 

See. 1943. Great Lakes, %S implementation. Sec. 1944. Transportahon construction and remediation, Ottawa County, Oklahoma. 

Sec. 1945. Infrastructure awareness program. See. 1946. Gateway rural improvement pilot program. 

Sec. 1947. Eligible safety improvements. Sec. 1948. Emergencg service route. 

Sec. 1949. Knik Arm Bridge funding clarification. 

See. 1950. Lincoln Parish, LAIT-20 Transportahon Comdor Program. 

Sec. 1951. Bonding assistance program. Sec. 1952. Con estion relief. 

Sec. 1953. Audorization of appropriations. 

Sec. 1954. Bicycle transportation and edestrian walkways. 

Sec. 1955. Conveyance to the City of &y, Nevada. 

See. 1956. Brodelds grants. Sec. 1957. Traffic circle construction, Clarendon, Vermont. 

Sec. 1958. Limitation on roject approval. 

Sec. 1959. Cross harbor Aight movement project. 

Sec. 1960. Den& access system program 

Sec. 1961. I-95fContee Road interchange study. 

Sec. 1962. Multimodal facility improvements. Sec. 1963. Apollo Theater leases. 

Sec. 1964. Project Federal share. 

Trn 11-HIGHWAY SAFETY 

Sec. 2001. Authorization of appropriations. 

Sec. 2002. Highway safety programs. 

Sec. 2003. Highway safety research and outreach programs. 

Sec. 2004. Occupant protection incentive grants. 

Sec. 2005. Grants for primary safety belt use laws. 

Sec. 2006. State traffic safety information system improvements. 

Sec. 2007. Alcohol-impaired driving countermeasures. 

Sec. 2008. NHTSA accountability. 

Sec. 2009. High visibility enforcement program. 

Sec. 2010. Motorcyclist safety. 

Sec. 2011. Child safety and child booster seat incentive grants. 

Sec. 2012. Safety data. 

Sec. 2013. Drug-impaired drivin enforcement. 

Sec. 2014. First responder vehick safety program. 

Sec. 2015. Driver erformance study. 

Sec. 2016. Rural &te emergency medical services pqtimization pilot program. 

Sec. 2017. Older driver safetx law enforcement t-na. 

Sec. 2018. Safe intersections: ' 

- 

Set. 2019. National Highway Safety Advisorg Committee technical correction. 

Sec. 2020. Presidential Commission on Alcohol-Impaired Driving. 

Sec. 2021. Sense of the Congress in support of increased public awareness of blood 

alcohol concentration levels and dangers of alcohol-impaired driving. 

Sec. 2022. Effective date. 

TITLE 111-PUBLIC TRANSPORTATION 

Sec. 3001. Short title. 
PUBLIC LAW 109-59-AUG. 10,2005 119 STAT. 1147 

Sec. 3002. Amendments to title 49, United States Code; updated terminology. 

Sec. 3003. Policies, findings, and purposes. Sec. 3004. Definitions. s&. 3005. Metropolitan transportation planning. 

Sec. 3006. Statewide transportation planning. 

Sec. 3007. Planning programs. 

Sec. 3008. Private enterprise partidpation. 

Sec. 3009. Urbanized area formula grants. 

Sec. 3010. Clean fuels grant program. Sec. 3011. Capital investment grants. 

Sec. 3012. Formula ants for special needs of elderly individuals and individuals 

with disarilities. 

Sec. 3013. Formula grants for other than urbanized areas. 

Sec. 3014. Research, development, demonstration, and deployment projects. 

Sec. 3015. Transit cooperative research rogram. 

Sec. 3016. National research and technoyogy programs. 

Sec. 3017. National Transit Institute. 

Sec. 3018. Job access and reverse commute formula grants. 

Sec. 3019. New Freedom Program. 

Sec. 3020. Bus testing facility. Sec. 3021. Alternative transportation in parks and public lands. 

Sec. 3022. Human resources programs. 

Sec. 3023. General provisions on assistance. 

Sec. 3024. Special provisions for capital projects. 

Sec. 3025. Contract requirementa. 

Sec. 3026. Project management oversight and review. 

Sec. 3027. Project review. 

Sec. 3028. Investigations of safety hazards and security risks. 

Sec. 3029. State safety oversight. 

Sec. 3030. Controlled substances and alcohol misuse testing. 

Sec. 3031. Employee protective arrangements. 

Sec. 3032. Administrative procedures. 

Sec. 3033. National transit database. 

Sec. 3034. Apportionments of formula grants. 

Sec. 3035. Apportionments based on fixed guideway factors. 

Sec. 3036. Authorizations. 

Sec. 3037. Alternatives analysis program. 

Sec. 3038. Apportionments based on growing States formula factors. 

Sec. 3039. Over-the-road bus accessibility program. 

Sec. 3040. Obligation ceiling. 

Sec. 3041. Adjustments for fiscal year 2005. 

Sec. 3042. Terrorist attacks and other acts of violence against public transportation 

systems. 

Sec. 3043. Project authorizations for new 6xed guideway capital projects. 

Sec. 3044. Projects for bus and bus-related facilities and clean fuels grant program. 

Sec. 3045. National fuel cell bus technology development program. 

Sec. 3046. Allocations for national research and technology programs. 

Sec. 3047. Forgiveness of grant agreement. 

Sec. 3048. Cooperative procurement. 

Sec. 3049. Transportation 6hge benefits. 

Sec. 3050. Commuter rail. 

Sec. 3051. Paratransit service in Illinois. 

TITLE TV-MOTOR CARRIER SAF%TY 

Sec. 4001. Short title. 

Subtitle A--Commercial Motor Vehicle Safety 

Sec. 4101. Authorization of appropriations. 

Sec. 4102. Increased penalties for out-of-service violations and false records. 

Sec. 4103. Penalty for denial of access to records. 

Sec. 4104. &vocation of operating authority. 

Sec. 4105. State laws relating to vehicle towing. 

Sec. 4106. Motor camer safety grants. 

Sec. 4107. High prioritp activities and new entrants audits. 

Sec. 4108. Data quality im rovement. 

Sec. 4109. Performance an: registration information system management. 

Sec. 4110. Border enforcement grants. Sec. 4111. Motor camer research and technology program. 

Sec. 4112. Nebraska custom harvesters length exemption. 

Sec. 4113. Pattern of safety violations by motor camer management. 

Sec. 4114. Intrastate operations of interstate motor carriers. 
119 STAT. 1148 PUBLIC LAW 109-59-AUG. 10,2005 

Sec. 4115. Transfer provision. Sec. 4116. Medical program. 

6ec. 4117. Safety perrurmance history screening. Sec. 4118. Roadability. Sec. 4119. International cooperation. 

Sec. 4120. Financial responsibility for rivate motor carriers. 

Sec. 4121. Deposit of certain civil pen3ties into Highway Trvst Pund. 

Sec. 4122. CDL learner's permit program. Sec. 4123. Commercial driveis License information system modernization. 

Sec. 4124. Commercial driveis license improvements. 

Sec. 4125. Hobbs Ad. 

Sec. 4126. Commercial vehicle information systems and networks deployment. 

Sec. 4127. Outreach and education. 

Sec. 4128. Safety data improvement program. See. 4129. Operation of commercial motor vehicles by individuals who use insulin 

to treat diabetes mellitus. 

Sec. 4130. Operators of vehicles transporting agricultural commodities and farm 

supplies. Sec. 4131. Maximum hours of service for operators of ground water well drilling 

rigs. 

Sec. 4132. Hours of service for operators of utility service vehicles. 

Sec. 4133. Hours of service rules for operators providing transportation to movie 

reduction sites. 

Sec. 4134. grant program for commercial motor vehicle operators. Sec. 4135. CDL task force. 

Sec. 4136. Interstate van operations. 

Sec. 4137. Decals. 

Sec. 4138. High risk carrier compliance reviews. Sec. 4139. Forei commercial motor vehicles. 

Sec. 4140. ~chorbus driver qualifications and endorsement knowledge test. 

Sec. 4141. Driveaway saddlemount vehicles. 

Sec. 4142. Registration of motor carriers and freight forwarders. 

Sec. 4143. Authority to stop commercial motor vehicles. 

Sec. 4144. Motor Camer Safety Advisory Committee. 

Sec. 4145. Technical corrections. 

Sec. 4146. Exemption during harvest periods. Sec. 4147. Emergency condition requiring immediate response. 

Sec. 4148. Substance abuse rofessionals. 

Sec. 4149. C%ce of intermogalism. 

Subtitle B-Household Goods Transportation 

Sec. 4201. Short title. 

Sec. 4202. Definitions; application of provisions. 

Sec. 4203. Payment of ratks. 

Sec. 4204. Additional registration requirements for motor carriers of household 

goods. Sec. 4205. Household goods camer operations. 

Sec. 4206. Enforcement of regdations related to transportation of household goods. Sec. 4207. Liability of carriers under receipts and bills of lading. 

Sec. 4208. Arbitration requirements. Sec. 4209. Civil ~enalties relating to household eoods brokers and unauthorized 

transportation. 

- - 

Set. 4210. Penalties for holding household oods hostage. Sec. 4211. Consumer handbook on DOT wef site. 

See. 4212. Release of household goods broker information. 

Sec. 4213. Working !noun for development of practices and procedures to enhance 

~ederd&ate'relations. 

Sec. 4214. Consumer corn laint information. 

Sec. 4215. Review of Liabiity of carriers. 

Sec. 4216. Application of State consumer protection laws to certain household goods caners. 

Subtitle &Unified Carrier Registration Act of 2005 

Sec. 

Sec. 

sec. 

See. 

Sec. 

Sec. 

See. 

Sec. 

Short title. 

Relationshi to other laws. 

Inclusion ofmotor private and exempt carriers. 

Uniiied Carrier Registration System. Registration of motor carriers by States. 

Identijication of vehicles. 

Use of UCR Aereement revenues as matchine funds. 

Regulations. - 
PUBLIC LAW 109-59-AUG. 10, 2005 119 STAT. 1149 

Subtitle D-Miscellaneous Provisions 

Sec. 4401. Technical adjustment. 

Sec. 4402. Transfer. 

Sec. 4403. Extension of assistance. 

Sec. 4404. Designations. 

Sec. 4405. Limited exception. Sec. 4406. Ai ort land amendment. 

Sec. 4407. Ri&a-of-way. Sec. 4408. Rialto Mumcipal Airport. 

Sec. 4409. Conforming amendments. 

Sec. 4410. Ralph M. Bartholomew Veterans' Memorial Bridge. 

Sec. 4411. Don Young's Way. Sec. 4412. Quality bank a ustments 

Sec. 4413. Technical amenddment. . Sec. 4414. Airport certification. 

TITLE V--RESEARCH 

Subtitle A-Funding 

Sec. 5101. Authorization of appropriations. 

Sec. 5102. Obligation ceiling. 

Sec. 5103. Findings. 

Subtitle %Research, Technology, and Education 

Sec. 5201. Research, technology, and education. 

Sec. 5202. Long-term bridge performance program; innovative bridge research and 

deployment program. 

Sec. 5203. Technology deployment. 

Sec. 5204. Training and education. 

Sec 5205. State plannin and research. 

Sec. 5206. International kghway transportation outreach program. 

Sec. 5207. Surface transportation environment and planning cooperative research 

program. 

See. 5208. Transportation research and development strategic planning. 

Sec. 5209. National cooperative freight transportation research program. 

Sec. 5210. Future strategic highway research program. 

Sec. 5211. Multistate conidor operations and management. 

Subtitle C-Intelligent Transportation System Research 

Sec. 5301. National ITS program plan. 

Sec. 5302. Use of finds. 

Sec. 5303. Goals and purposes. 

Sec. 5304. Infrastructure development. 

Sec. 5305. General authorities and requirements. Sec. 5306. Research and development. 

Sec. 5307. National architecture and standards. 

Sec. 5308. Road weather research and development program. 

Sec. 5309. Centers for surface transportation excellence. 

Sec. 5310. Definitions. 

Subtitle D--University Transportation Research; Scholarship Opportunities 

Sec. 5401. National university transportation centers. 

Sec. 5402. University transportation research. 

Subtitle E--Other Programs 

Sec. 5501. Transportation safety information management system project. 

See. 5502. Surface transportation congestion relief solutions research initiative. 

Sec. 5503. Motor carrier efficiency study. 

Sec. 5504. Center for Transportation Advancement and Regional Development. 

Sec. 5505. Transportahon scholarship opportunities program. Sec. 5506. Commercial remote sensing products and spatial information technolo 'es 

Sec. 5507. ~ur$in&tate comdor comunications study. 

Sec. 5508. Rans ortation technology innovation and demonstration program. 

Sec. 5509. FtepeJ. 

Sec. 5510. Notice. 

Sec. 5511. Motorcycle crash causation study Sec. 5512. Advanced travel forecasting proceE&rogram. 

Sec. 5513. Research grants. 

Sec. 5514. Competition for specification of alternative types of culvert pipes. 
119 STAT. 1150 PUBLIC LAW 109-5SAUG. 10,2005 

Subtitle F-Bureau of Transportation Statistics 

Sec. 5601. Bureau of Transportation Statistics. 

TITLE VI-TRANSPORTATION PLANNING AND PROJECT DELIVERY 

Sec. 6001. Transportation planning. Sec. 6002. Efficient environmental reviews for project decisionmaking. 

Sec. 6003. State assumption of res~onsibiLities for certain programs and projects. Sec. 6004. State assumption of responsibili for categorical exclusions. Sec. 6005. Surface transportation project dgvery pilot program. 

Sec. 6006. Environmental restoration and pollution abatement; control of noxious 

weeds and a uatic noxious weeds and establishment of native species. 

See. 6007. Exemption ofb.erstate System. Sec. 6008. Integration of natural resource concerns into transportation project plan- -- - 

Sec. 6009. gL, recreation areas, wildlife and waterfowl refuges, and historic 

sites. 

Sec. 6010. Environmental review of activities that support deployment of intelligent transportation systems. See. 6011. Transportation conformity. Sec. 6012. Federal Reference Method. 

Sec. 6013. Air quality monitoring data influenced by exceptional events. 

Sec. 6014. Federal omcurement of recvcled coolant. 

Sec. 6015. clean school bus program. * 

Sec. 6016. Special designation. 

Sec. 6017. Increased use of recovered mineral component in federally funded projects involving procurement of cement or concrete. 

Sec. 6018. Use of granular mine tailings. 

TITLE VII-HAZARDOUS MATERIALS TRANSPORTATION 

Sec. 7001. Short title. 

Sec. 7002. Amendment of title 49, United States Code. 

Subtitle A-General Authorities on Transportation of Hazardous Materials 

Sec. 7101. Findings and purpose. Sec. 7102. Definibons. 

Sec. 7103. General regulatory authority. Sec. 7104. Limitation on issuance of hazmat licenses. 

Sec. 7105. Background checks for drivers hauling hazardous materials. 

Sec. 7106. Representation and tampering. 

Sec. 7107. Technical amendments. 

See. 7108. Training of certain employees. 

Sec. 7109. Registration. Sec. 7110. Sh pin papers and disclosure. 

Sec. 7111. ~aiftaz% cars. Sec. 7112. Unsatisfactory safety ratings. Sec. 7113. Training curriculum for the public sector. 

See. 7114. Planning and training grants; Hazardous Materials Emergency Prearedness Fund. 

Sec. 7115. 8 ecial permits and exclusions. 

Sec. 7116. I? niform forms and procedures. 

Sec. 7117. International uniformity of standards and requirements. 

Sec. 7118. Administrative authority. 

Sec. 7119. Enforcement. 

See. 7120. Civil penalty. 

Sec. 7121. Criminal penalty. 

Sec. 7122. Preemption. 

Sec. 7123. Judicial review. 

See. 7124. Relationship to other laws. 

Sec. 7125. Authorization of appropriations. 

Sec. 7126. References to the Secretmy of Transportation. Sec. 7127. Criminal matters. 

Sec. 7128. Additional civil and criminal ~enalties. 

7129. Hazardous material transporktion lan requirement. 

Sec. 7130. Determining amount of undeclarei shipments of hazardous materials 

entering the United States. 

Sec. 7131. Hazardous materials research projects. Sec. 7132. National first responder transportation incident response system. Sec. 7133. Common canier pipeline system. 

Subtitle B--Sanitary Food Transportation 

Sec. 7201. Short title. 
PUBLIC LAW 109-59-AUG. 10, 2005 119 STAT. 1151 

Sec. 7202. Responsibilities of Secretary of Hea!th and Human Services. 

Sec. 7203. De artment of Transportation reqwrements. Sec. 7204. ~fPeetive date. 

Subtitle C-Research and Innovative Technology Administration 

Sec. 7301. Administrative authority. 

TITLE: VIII-TRANSPORTATION DISCRETIONARY SPENDING GUARANTEE 

Sec. 8001. Discretionary spending limits for the highway and mass transit cab e ories. 

Sec. 8002. djustments to ali highway spending with revenues. Sec. 8003. Level of obligationTm1tations. Sec. 8004. Enforcement of guarantee. Sec. 8005. Transfer of Federal transit administrative expenses. 

TITLE M-RAIL TRANSPORTATION 

Sec. 9001. High s eed rail comdor development. Sec. 9002. Ca idgrants for rail line relocation projects. Sec. 9003. Regabilitation and improvement financing. Sec, 9004. Report re~arding imvact on ~ublic safety of train travel in wmmunities 

wiihout grade sSpar&tion. - Sec. 9005. Welded rail and tank car safety improvements. Sec. 9006. Alaska Railroad. 

Sec. 9007. Study of rail transportation and regulation. Sec. 9008. Hawaii port infrastructure expansion program. 

TITLE X-MISCELLANEOUS PROVISIONS 

Subtitle A-4porttishing and Recreational Boating Safety 

Sec. 10101. Short title. 

CHAPTER 1-DINGELLJOHNSON SPORT FISH RESTORATION ACT AMENDMENTS 

Sec. 10111. Amendment of DingellJohnson Sport Fish Restoration Act. 

Sec. 10112. Authorization of appropriations. Sec. 10113. Division of annual appropriations. Sec. 10114. Maintenance of projects. Sec. 10115. Boating infrastructure. 

Sec. 10116. Requirements and restrictions concerning use of amounts for expenses 

for Adminihation 

Sec. 10117. Payments of funds to and cooperation with Puerto Rico, the District of 

Columbia, Guam, American Samoa, the Commonwealth of the Northern 

Mariana Islands, and the Virgin Islands. 

Sec. 10118. Multistate conservation grant program. Sec. 10119. Expenditure of remaining balance in Boat Safety Account. 

CHAFTER LEAN VESSEL ACT OF 1992 AMENDMENTS 

Sec. 10131. Grant program. 

CHAPTER 3-~XC&Y~IONAL BOATING SAFETY PROGRAM AMENDMENTS 

Sec. 10141. Technical correction. 

Sec. 10142. Availability of allocations. 

Sec. 10143. Authorization of appropriations for State recreational boating safety 

programs. 

Subtitle B-Other Miscellaneous Provisions 

Sec. 10201. Notice regardin participation of small business concerns. Sec. 10202. Emergency med?cal services. 

Sec. 10203. Hubzone ro am See. 10204. Catastm %ic%urricane evacuation plans. ~ec. 10205. ~ntermofal transportation facility expansion. 

Sec. 10206. Eligibility to participate in western Alaslra community development 

uota pro am. Sec. 10207. %a11 rehglitation and bridge repair. 

Sec. 10208. Rented or leased motor - ~ vhcles. ~~~ Sc. 10209. Midway-Island. 

Sec. 10210. Demonstration of digital project simulation. 

Sec. 10211. Environmental programs. Sec. 10212. Rescission of unobllgated balances. 

Sec. 10213. Tribal land. 

Subtitle CSpecific Vehicle Safety-related Rulings 

Sec. 10301. Vehicle rollover prevention and crash mitigation. 
119 STAT. 1152 PUBLIC LAW 109-59-AUG. 10,2005 

Sec. 

See. 

Sec. 

Sec. 

Sec. 

See. 

Sec. 

Sec. 

Sec. 

Sec. 

10302. Side-imvad crash ~rotection rulemakina. 

10303. Tire research. - 

10304. Vehicle backover avoidance technology study. 10305. Nontrac incident data collection. 

10306. Study of safety belt use technologies. 10307. Amendment of Automobile Information Disclosure Act. 

10308. Power window switches. 

10309. 15-Passenger van safety. 

10310. Authorization of appropriations. 

TITLE =-HIGHWAY REAUTHORIZATION AND EXCISE TAX 

SIMPLIFICATION 

11100. Amendment of 1986 Code. 

Subtitle A-Trust Fund Reauthorization 

Sec. 11 101. Extension of highway-related taxes and trust funds. 

Sec. 11102. Modification of adjustments of apportionments. 

Subtitle B-Excise Tax Reform and Simplification 

PART 1-HIGHWAY EXCISE TAXES 

Sec. 11111. Modification of gas guzzler tax. 

Sec. 11112. Exclusion for tractors weighing 19,500 pounds or less from Federal ex- cise tax on heavy trucks and trailers. 

Sec. 11113. Volumetric excise tax cremt for alternative fuels. 

PART AQUATIC ExCISE TAXES 

Sec. 11115. Elimination of Aquatic Resources Trust Fund and transformation of 

Sport Fish Restoration Accaunt. 

Sec. 11116. Repeal of harbor maintenance t+ on exports. Sec. 11117. Cap on excise tax on certain fishmg equipment. 

PART 3-AERIAL EXClSE TAXES 

Sec. 11121. Clarification of excise tax exemptions for agricul@ral aerial applicators and exemption for Fixed-Win aircraft engaged in forestry operabons. 

Sec. 11122. Modification of rural airport fefinition. 

Sec. 11123. Exemption from taxes on transportation provided by seaplanes. 

Sec. 11124. Certain sightseeing flights exempt £rum taxes on air transportation. 

PART &'P*~s RELATING TO ALCOHOL 

Sec. 11125. Repeal of special occupational taxes on producers and marketers of alcoholic beverages. 

Sec. 11126. Income tax credit for distilled spirits wholesalers and for distilled spir- it. in control State bailment warehouses for costs of carrying Federal ex- cise taxes on bottled distilled spirits. Sec. 11127. Quarterly excise tax mng for small alcohol excise taxpayers. 

PART SPORT EXCISE TAXES 

Sec. 11131. Custom gunsmiths. 

Subtitle CMiscellaneous Provisions 

Sec. 11141. Motor Fuel Tax Enforcement Advisory Commission. 

Sec. 11142. National Surface Transportation Infrastructure Finanang Commission. 

Sec. 11143. Tax-exempt financing of highway projects and rail-truck transfer facilities. 

Sec. 11144. Treasury study of highway fuels used by trucks for non-trar~aportation 

purposes. 

Sec. 11145. Diesel fuel tax evasion report 

Sec. 11146. Tax treatment of State ownership of railroad real estate investment 

trust. 

See. 11147. Limitation on transfers to the Leaking Underground Storage Tank 

Trust Fund. 

Subtitle %Highway-Related Technical Corrections 

Sec. 11151. Highway-related technical corrections. 

Subtitle &Preventing Fuel Fraud 

Sec. 11161. Treatment of kerosene for use in aviation. 

Sec. 11162. Repeal of ultimate vendor refund claims with respect to farming. 
SEC. 6011. TRANSPORTATION CONFORMITY. 

(a) Conformiiy Redetemu'nations- Section 176(c)(2) of the Clean Air Act (42 U.S.C. 

7506(c)) is amended by adding at the end the following: 

'(E) The appropriate metropolitan planning organization shall 

redetermine conformity of ex-isting transportation plans undprograms 

not later than 2 years after the date on which the Adininistrator-- 

'(i) finds u motor vehicle emissions budget to be adequate in 

accordance wit11 section 93.118(e)(4j of title 40, Code of Federal 

Regulations (as in effect on October 1, 2004); 

'(ii) approves an implementation plan that establishes a motor 

vehicle emissions budget ifthat budget has not yet been 

determined to be adequate in nccor-dance with clause (9; or 

'(iii) promulgates an implementation plan that establishes or 

revises a motor vehicle emissions budget.'. 

(b) Frequency of Conformity Determination Updates- Section 176(c)(4)(B)(ii) of the 

Clean Air Act (42 U.S.C. 7506(~)(4)(B)(ii)) is amended to read as follows: 

'(ii) address the appropriate frequency for making conformig~ determinations, 

but the frequency for nuking conformity determinations on updated 

transportation plans andprograms shall be every 4 years, except in a case in 

which-- 

'(I) the metropolitan planning organization elects to update a 

transportation plan or propam more frequently; or 

'(I0 the metropolitan planning organization is required to determine 

conformity in accordance with paragraph (2)(E); and! 

(c) Time Horizon for Conformity Determinations in Nonattainment Areas- Section 176(c) 

of the Clean Air Act (42 U.S.C. 7506(c)) is amended by adding at the end the following: 

'(7) CONFORMITY HORIZ0AA, FOR TRANSPORTA TION PMS- 

'(A) IN GENERAL- Each conformity determination required under this 

section for a transportation plan under section 134fi) of title 23, Unlted 

States Code, or section 5303(i) of title 49, United States Code, shall 

require a demonstration of confom~ity for the period ending on either the 

final year of the transportation plan, or at the election of the 

metropolitan planning organization, after consultation with the air 

pollution control agency and solicitation ofpublic comments and 

consideration of such comments, the longest of the followii~g periods: 

'(i) The first 10-year period of any such transportation plan. 

'(ii) The latest year in the irnplernentation plan applicable to the 

area that contains a motor vehicle emission budget. 

'(iii) The year after the completion date of a regionally 

significantproject if the project is included in the transportation 

improvement program or the project requires approval before 

the subsequent conformity determination. 

'(B) REGIONAL EMISSIONS ANLYSIS- The conformity determination 

shall be accompanied bj? a regional emissions analysis for the last year 

of the transportation plan and for any year shown to exceed emission 

budgets by a prior analysis, ifsuch year extends beyond the applicable 

period as determined under subparagraph (A). 

'(C) EXCEPTION- In any case in which an area has a revision to an 

implementation plan under- section 175A(b) and the Administrator has 

found the motor vehicles emissions Budgets from that revision to be 
adequate in accordance with section 93.118(e)(4) of title 40, Code of 

Federal Regulations (as in effect on October 1, 2004), or has approved 

the revkion, the demonstration of conformity at the election of the 

metropolitan planning organization, afer consultation with the air 

pollution control agency and solicitation ofpublic comments and 

consideration of such comments, shall be required to extend only 

through the last year of the implementution plan required under section 

1 75Afi). 

'(D) EFFECT OF ELECTION- Any election by a metropolitan planning 

organization under thh paragraph shall continue in efect until the 

metropolitan planning organization elects otherwise. 

'(E) AIR POLLUTION CONTROL AGENCY DEFINED- in this 

paragraph, the tern1 'air polltltion control agency' means an airpollution control agency (as defined in section 302fi)) that is responsible 

for developing plans or controlling airpollufion within the area covered 

bv a transportation plan. '. 

(d) Substitution of Transportation Control Measures- Section I76(c) of the Clean Air Act 

(42 U.S.C. 7506(c)) (as amended by subsection (c)) ir amended by inserting ufler 

paragraph (7) the following: 

'(8) SLBS27TUTION OF TRANSPORTATION CONTROL MEASURES- 

'(A) IN GEiVERAL- Transportation contl-01 measures that are specified 

in an implementation plan may be replaced or added to the 

implementation plan with alte~nate or additional transportation control 

measures-- 

'(i) if the substitute nzeasures achieve equivalent or greater 

emissions reductions than the control measure to be replaced, as 

den~onstrated with an emissions impact analysis that ik 

coizsistent with the current methodology used for evaluating the 

replaced control measure in the implementation plan; 

'(ii) if the substittite control measures are implemented-- 

'(I) in accordance with a schedule that is cowistent with 

the schedule provided for control measures in the 

implementation plan; or 

'(II) if the implementation plan date for implementation 

of the control measure to be replaced has passed, as 

soon as practicable after the implementation plan date 

but not later than the date on which emission reductions 

are necessav to achieve thepurpme of the 

implementation plan; 

'(iii) ifthe substitute and additional control measures are 

accompanied with evidence of adequate personnel and funding 

and authority under State or Iocal law to implement, monitor, 

and enforce the control measures; 

'(iv) if the substitute and additional control measures were 

developed through a collaborativeprocess that included-- 

'(I) participation by representatives of all afected 

jurisdictionr (including local air pollution control 

agencies, the State air pollution control agency, and 

State and Iocal transportation agencies); 

'(IT,) consultation with the Adnzinistrator; and 
'(III) reasonable public notice and opportuniry for 

comment; and 

'(v) if the metropolitan planning organization, State air pollution 

control agency, and the Administrator concur with the 

equivalency of the substitute or additional control measures. 

'(B) ADOPUON- (i) Concurrence by the men-opolitan planning 

organization, State air pollzition control agency and the Administrator m 

required by subparagraplz (A)(v) shall constitute adoption of the 

substitute or additional control measures so long us the requirements of 

subparagraphs (A)($, (A)(ii), (A)(iii) and (A)(iv) are met. 

'(ii) Once adopted, the substitute or additional control measures become, 

by operation of law, part of the state implementation plan and become 

federally enforceable. 

'(iii) Within 90 days of its concurre~lce under subparagraph (A)(v). the 

State air pollution control agency shall submit the substitute or 

additional control measure to the Administrator for incorporation in the 

cod$cation of the applicable i~nplementation plan. Nothwithstanding 

any ot/~evprovision of this Act, no additional State process shall be 

necessan, to support such revision to the applicable plan. 

'(C) NO REQUIREMENT FOR EXFRESS PERMISSION- The 

substitution or addition of a transportation control measure in 

accordance with this paragraph and the funding or approval of such a 

control measure slzall not be contingent on the existence of any provision 

in the applicable implementation plan that expressly permits such a 

substitution or addition. 

'(D) NO REQUIREMENT FOR NEW CONFORMITY 

DETEMNADON- The substitution or addition of a transportation 

control measure in accordance with this puragraph shall not require-- 

'(9 a new confomaity determination for the transportation plan; 

or 

'(ii) a revision of the implementation plan. 

'(E) CONTINUATION OF CONTROL MEASURE BEING REPLACEDA control measure that is being replaced by a substitute control measure 

under this paragraph shall remain in effect until the substitute control 

measure is adopted by the State pursuant to subparagraph (B). 

'(F) EFFECT OF ADOPTION- Adoption of a substitute control measure 

shall constitute rescission of the previouslj7 applicable control measure. '. 

(e) Lapse of Conformity- Section 176(c) of the Clean Air Act (42 U.S.C. 7506(c)) (as 

a~nended by subsections (c) and (d)) is amended by inserting aferparagraph (8) the 

following: 

'(9) LAPSE OF CONFOMTY- If a conformity determination required under 

this subsection for a transportation plan under section 134(i) of title 23, United 

States Code, or section 5303(i) of title 49, United States Code, or a 

transportation improvement program under section 1346) of such title 23 or 

under section 53036;) of such title 49 is not made by the applicable deadline and 

such failure is not corrected by additional measures to either reduce motor 

vehicle ernksions sufficient to demonstrate co~npliance with the requirements of 

this subsection within I2 rnollths afler such deadline or other measures suscient 

to correct such failures, the transyortation plan shall lapse. 

'(10) LAPSE- In th3 subsection, the tern 'lapse'means that the conformity 

determination for a transportation plan or transportation improvement program 
has expired, and thus there is no currently conforming transportation plan or 

transportation improvement progrum. : 

@ Conforming Amendments- Section 176(c)(4) of the Clean Air Act (42 U.S. C. 

7506(c)(4) (as amended by subsection (b)) is amended-- 

(I) by redesignating st~bparagraphs (B), (C), and (D) as szrbpuragraphs (D), (E), 

and (F), respectively; 

(2) by striking '(4)(A) No later than one year after. the date of enactment of the 

Clean Air Act Amendments of 1990, the Administrator shaNpromulgate'and 

inserting the following: 

'(4) CRITERIA AND PROCEDURES FOR DETERMINAIG CONFORMITY- 

'(A) IN GENERAL- The Administrator shall promulgate, and 

periodically update, ': 

(3) in the second sentence of subparagraph (A)-- 

(A) by striking 'No later than one year after such date of enactment, the 

Administrutor, with the concurrence of the Secretaly of Transpol-tation. 

shall promulgate 'and inserting the following: 

'(B) TR4NSPORTAIION PLANS, PROGRAMS, AhD PROJECTS- i%e 

Administrut0~-, with the conctrrrence of ihe Secreta~y of Transportation, 

shall promulgate, and periodically update, ': and 

(B) in the third sentence, by striking 2 suit' and inserting the following: 

'(C) CIVIL ACTION TO COMPEL PROML'LGADON- A civil action: 

and 

(4) by striking subparagraph (E) (as redesignated by paragraph (I)) and 

inserting the following: 

'(E) INCLUSION OF CXITERLA AND PROCEDURES INSIP- Not later 

than 2 years afier the date of enactment of the SAFETEA-LU the 

procedures under subparagraph (A) shall include a reqtrirenzent that 

each State include in the State implementation plan criteria and 

procedures for consultation required by subparagraph (D)(i), and 

enforcement and enforceability (pursuant to sections 93.125(c) and 

93.122(a)(4)(ii) of title 40, Code of Federal Hegulations) in accordance 

with the Administrator's cn'teria andprocedures for consultation, 

enforcement and enforceability. '. 

(g;) Regulations- hrof later than 2 years after the date of enactment of this Act, the 

Adminkfrator of the Environmental Protection Agency shall promulgate revised 

regulations to implement the changes made by this section. 
EXHIBIT I-] 

STATE OF NEW MEXICO 

County of BernaliUo SS 

Bill l?ifoya, being duly sworn, declares and says that he is Classified 

Advertising Manager of The Albuquerque Journal, and that this newspaper is 

duly qualified to publish legal notices or advertisements within the meaning of 

Section 3, Chapter 167, Session Laws of 1937, and that payment therefore has 

been made of assessed as court cost; that the notice, copy of which is hereto 

attached, was published in said paper in the regular daily edition, for 

ion being on the -ay of 

Statement to come at end of month. 

ACCOUNT NUnWER '? 8.09 
cry 1 (54 U ers ~OQ 
La9 rresulac'i0fl& ;rev..das. pro.: 

puestas be pueden. w en h~- rn habks ncr⩽& la oficina 

&a .& Celldad del Aire . gk%. 1301 sgi.~oid,BufiC. 

ng & SantaFe Uuevo.M-..B 

iexto canpkb Alas EF~ 

revisadas propueslas.. e NMED 

e& a diWn enell;lM Web 

,, 6, N'.:M ;E :,.D'.::,:'*~:' n www nrn~.slate~.US;~O tien 

con&-ando a6qi!w, al (mO 4 7 $ .i ..a':..3 '&J 9 , 

gaR.rpk~E.rn&:::.- -, 

:, . Las notNlcacione~ de jijtencion gara la &encia ifeben sq..& ldas en la OflBa dd'Corise o a mas tarb a las 5:p p.m: e1.23 

de mano de 2W9 .y'hacei'rei&. encia al wmem he e edente 

EtB Ci5 By kte%a.de 14 

audle$a. s' ' notlliilon+ de 

inbm para presentar tesirm 

nias tecnWs se debm entrep.~ Joy3 Medna; +fm?sk+~:del 

canqo 

Oficlna del Co&o M& 

&I Medb AmbiiMe . . . . 

Harold Runnels Building : :. :. 1190 St bls Dr .'Room N- 215012153 : :,:,?, ?:.: ';,:,: 

SanbFeNM87502.'..:;., . '. 

~elelono~~~)~827-24~, Fax 

'W 827; : ,= -, , j: , ... ,.... . 

~ualqul~'~miemb10 del.&blico 

neral puede tealifiwr ei~ la au-. B. na NO se reguiere.-nomca- cmn para pmsentar testimados M fewicos .en la audien: cla Lm rniembros del publ~co larnblen pueden obecer anexis h 

relacia? am su lsSLImorio en 1- 

la no Sean rep.etido& i&&& 

dew lslhmm. 

Los mlenbms .&I publko & pert era1 que dereen presmtar una declaradon.por escrllo .pan el 

reg- en VeZ de ckecw leq- monio Gibal en la alidiencia pe sknlam la dec@ra$nporebito 

de la audienaa o kpe, wmn en la-miand .: . . : 

I 

Las pet$ms con dlscapaadad y 

que necesRen ayuda para ser paw de este proceso de la em deberan contactar 'a Judy Bent@ hawa el 23 de marro da 2009 en NMH) A~enda do Ser. VICIO'S ~ersonb~es P.O. BOS 

26110 1190 SL ~dncls Dim. 

Sam 'fa. Mevo kum, 87x12 

leklon0 505827-9872.h un~r: 
CONSEJO PARA LA MEJORA DEL MEDIO AMl3IENTE DE NUEVO &XICO 

NOTIFICACION DE REUNION P~LICA Y AUDIENCIA DE REGLAMENTACI~N 

El Consejo para la Mejora del Medio Ambiente de Nuevo Mtxico (el "Consejo") llevar5 a cab0 una 

audiencia pliblica el 6 de abril de 2009, alas 10:OO am., en la Sala 317, en la Capital del Estado en Santa 

Fe, Nuevo Mtxico. El objetivo es considerar el asunto de EIB 08-15 (R), las revisiones propuestas alas 

Regulaciones sobre el Control de la Calidad del Aire 20.2.99 (Cumplimiento con el Plan Estatal de 

Implementaci6n de Planes de Transporte, Programas y Proyectos) del C6digo Administrative de Nuevo 

Mtxico (NMAC). 

El defensor de esta adopci6n normativa y revisi6n es el Departamento del Medio Ambiente de Nuevo 

Mbico (el "NMED"). 

El objetivo de la audiencia pliblica es considerar y tomar posibles acciones en una petici6n del NMED 

respecto a las revisiones propuestas a 20.2.99 Nh4AC, las cuales incluin'an las disposiciones necesarias para 

que 20.2.99 NMAC sea consistente con la Secci6n 176(c) de la Clean Air Act (Ley de Aire Lirnpio), y sus 

reformas, por la Safe Accountable Flexible EJicient Transportation Equity Act (L.ey de Equidad del 

Transporte Seguro, Responsable, Flexible y Eficiente), o SAFETEA-LU, del 10 de agosto de 2005 (Pub. L. 

109-59). Las revisiones propuestas tambitn incluyen reformas menores que requieren las regulaciones 

federales que no esth relacionadas con la SAFETEA-LU. 

Las regulaciones revisadas propuestas se pueden revisar en horas hibiles normales, en la oficina de la 

Agencia de Calidad del Aire de NMED, 1301 Siler Road, Building B, Santa Fe, Nuevo Mtxico. El texto 

completo de las regulaciones revisadas propuestas de NMED estk a disposici6n en el sitio Web de NMED, 

en www.nmenv.state.nm.us, o bien contactando a Gail Cooke, al(505) 476-4319, o 

gail.cooke@state.nm.us. 

La audiencia se realizari de conformidad con 20.1 .I WC (Procedimientos de RegIamentaci6n - Consejo 

para la Mejora del Medio Ambiente), la Ley de Mejora del Medio Ambiente, Seccibn 74-1-9 NMSA 1978, 

la Ley de Control de Calidad del Aire, Seccibn, 74-2-6 NMSA 1978, y otros procedimientos aplicables. 

Todas las personas interesadas tendrh oportunidad razonable en la audiencia de presentar pruebas, datos, 

opiniones y argumentos importantes, ya sea en forma verbal o por escrito, asi como de presentar anexos e 

interrogar testigos. Las personas que deseen entregar testimonios ticnicos deben presentar ante el Consejo 

una notificacion por escrito de su intenci6n. La notificaci6n de intenci6n debera 

(1) identificar a la persona para quien testificani(n) el(1os) testigo(s); 

(2) identificar a cada uno de 10s testigos tkcnicos que las personas desean presentar y deciarar las 

cualificaciones de 10s mismos, incluyendo una descripcibn de sus antecedentes de educaci6n y trabajo; 

(3) resumir o incluir una copia del testimonio direct0 de cada testigo tknico y declarar la duracibn prevista 

del testimonio de ese testigo; 

(4) enumerar y describir, o adjuntar, cada uno de 10s anexos que dicha persona prevt ofrecer en la 

audiencia; y 

(5) adjuntar el texto de cualquier modificaci6n recomendada a las regulaciones propuestas nuevas y 

revisadas. 

Las notificaciones de intenci6n para la audiencia deben ser recibidas en la Oficina del Consejo a mh tardar 

a las 5:00 p.m., el 23 de mano de 2009, y hacer referencia al nhero de expediente, EIB 08-15 (R), y la 

fecha de la audiencia Las notificaciones de intencibn para presentar testimonios t6cnicos se deben entregar 

a: 

Joyce Medina, Administrador del Consejo 

Oficina deI Consejo para la Mejora del Medio Ambiente 

Harold Runnels Building 

1190 St. Francis Dr., Room N-2150 1 2153 

Santa Fe, NM 87502 

Teltfono: (505) 827-2425, Fax (505) 827-2836 
Cualquier miembro del phblico en general puede testificar en la audiencia. No se requiere notificaci6n 

previa para presentar testimonios no tknicos en la audiencia. Los miembros del phblico tarnbiCn pueden 

ofrecer anexos en relaci6n con su testimonio, en tanto no Sean repeticiones excesivas de su testimonio. 

Los miembros del phblico en general que deseen presentar una declaraci6n por escrito para el registro, en 

vez de ofrecer testimonio verbal en la audiencia, presentarb la declaraci6n por escrito antes de la 

audiencia, o la present& en la misma. 

Las personas con discapacidad y que necesiten ayuda para ser parte de este proceso de la audiencia deberin 

contactar a Judy Bentley hacia el 23 de marzo de 2009, en NMED, Agencia de Se~cios Personales, P.O. 

Box 261 10, 1190 St. Francis Drive, Santa Fe, Nuevo Mexico, 87502, telefono 505-827-9872. Los usuarios 

de TDY deben acceder a su nbero a travis de la Red de Difusi6n deNuevo Mkico, a1 1-800-659-8331. 

El Consejo puede tomar la decisi6n sobre las regulaciones propuestas revisadas a la conclusi6n de la 

audiencia, o bien acordar una reuni6n para una fecha posterior a fin de considem las acciones sobre la 

propuesta. 
NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD 

NOTICE OF RULEMAKTNG HFiANNG 

The New Mexico Environmental Improvement Board ("Boardn) will hold a public hearing on April 6,2009 

at 10:OO a.m. in Room 3 17 at the State Capital in Santa Fe, New Mexico. The purpose of the hearing is to 

consider thc matter of EIB 08-15 (R), proposed revisions to Air Quality Control Regulations 20.2.99 New 

Mexico Administrative Code (NMAC) (Conformity to the State Implementation Plan of Transportation 

Plans, Programs, and Projects). 

The proponent of this regulatory adoption and revision is the New Mexico Environment Department 

("NMED"). 

The purpose of the public hearing is to consider and take possible action on a petition from the NMED 

regarding proposed revisions to 20.2.99 NMAC. These proposed revisions would incorporate provisions 

necessary to make 20.2.99 NMAC consistent with Clean Air Act section 176(c) as amended by the Safe 

Accountable Flexible Efficient Transportation Equity Act or SAFETEA-LU on August 10,2005 (Tub. L. 

109-59). The proposed revisions also include minor amendments required by federal regulations that are 

not related to SAFETEA-LU. 

The proposed revised regulations may be reviewed during regular business hours at the NMED Air Quality 

Bureau office, 1301 Siler Road, Building B, Santa Fe, New Mexico. Full text of NMED's proposed revised 

regulations are available on NMED's web site at www.nmenv.state.nm.us, or by contacting Gail Cooke at 

(505) 476-43 19 or gail.cooke@state.nm.us. 

The hearing will be conducted in accordance with 20.1.1 NMAC (Rulemaking Procedures - Environmental 

Improvement Board), the Environmental Improvement Act, Section 74-1-9 NMSA 1978, the Air Quality 

Control Act Section, 74-2-6 Nh4SA 1978, and other applicable procedures. 

All interested persons will be given reasonable opportunity at the hearing to submit relevant evidence, data, 

views and arguments, orally or in writing, to introduce exhibits, and to examine witnesses. Persons 

wishing to present technical testimony must file with the Board a written notice of intent to do so. The 

notice of intent shall: 

(1) identify the person for whom the witness(es) will testify; 

(2) identify each technical witness that the person intends to present and state the qualifications of the 

witness, including a description of their education and work background; 

(3) summarize or include a copy of the direct testimony of each technical witness and state the anticipated 

duration of the testimony of that witness; 

(4) list and describe, or attach, each exhibit anticipated to be offered by that person at the hearing; and 

(5) attach the text of any recommended modifications to the proposed new and revised regulations. 

Notices of intent for the hearing must be received in the Office of the Board not later than 5:00 pm on 

March 23,2009, and should reference the docket number, EIB 08-15 (R), and the date of the hearing. 

Notices of intent to present technical testimony should be submitted to: 

Joyce Medina, Board Administrator 

Office of the Environmental Improvement Board 

Harold Runnels Building 

1190 St. Francis Dr., RoomN-2150 / 2153 

Santa Fe, NM 87502 

Phone: (505) 827-2425, Fax (505) 827-2836 

Any member of the general public may tesq at the hearing. No prior notification is required to present 

non-technical testimony at the hearing. Any such member may also offer exhibits in connection with his 

testimony, so long as the exhibit is not unduly repetitious of the testimony. 
A member of the general public who wishes to submit a written statement for the record, in lieu of 

providing oral testimony at the hearing, shall file the written statement prior to the hearing, or submit it at 

the hearing. 

Persons having a disability and needing help in being a part of this hearing process should contact Judy 

Bentley by March 23,2009 at the NMED, Personnel Services Bureau, P.O. Box 261 10,1190 St. Francis 

Drive, Santa Fe, New Mexico, 87502, telephone 505-827-9872. TDY users please access her number via 

the New Mexico Relay Network at 1-800-659-833 1. 

The Board may make a decision on the proposed revised regulations at the conclusion of the hearing, or the 

Board may convene a meeting at a later date to consider action on the proposal. 
New Mexico Commission of Public Records 

Administrative Law Division 

1205 Cainino Carlos Rey 

Santa Fe, NM 87507 

505-476-7907 

Affidavit sf Publication in the New Mexico Register 

I, John Martinez , certify that the agency noted below has published legal notices or rules in 

the New Mexico Register, and that payment has been assessed by invoice for said. legal notice 

or publication, which appeared on the date and in the volume and issue number noted below. 

Date of Publication: 1/30/2009 

Volume: XX Issue# : 2 

- Invoice # : NM-2009- 208 a 

Amount: $30.00 

Description: 

Notice 

(seal) 

Agency: 

EIB - Air Qua1 

Contact: Gail Cooke 

1301 Siler RD Bldg B 

Santa Fe, NM 87507- 

Notice of Rulemaking 

State of New Mexico, County of Santa Fe 

Signed and affirmed before me on Monday, February 23,2009 

by John Martinez 

Notary Public: - a,@&-& 

Gail A Packard ~rnisSion expires: a 4 j .&3 l 17 

ate: 2/23/2009 

-Copies of the publislied material documented in rI~is qDidmli! are enclosedForm SRC-2002-04 Revised Julp 2007 
New Mexico Register I Volume XX, Number 2 I January 30,2009 25 

Notices of Rulemaking and Proposed Rules 

ALBUQUERQUEBERNALILLO COUNTY 

Am QBJALITY CONTROL 

BOARD 

ALBUQUERQUE-BERNALILLO 

COUNTY AIR QUALTTY CONTROL 

BOARD 

NOTICE OF POSTPONEMENT OF 

HEARMG 

On February 11. 2009. at 5:30 pin, the 

Albuquerque-Bernalillo County Air Qualit)' 

Control Board (Air Board) was scheduled to 

hold a public hearing in the Vincent E. 

Griego Chambers located in the basement 

level of the Albuquerque-Bemalillo Count). 

Government Center. 400 Maquette Avenue 

NW, Albuquerque, NM. The hearing has 

been postponed until further notice. 

This hearing was to address a proposal lo 

amend 20.1 1.2 NMAC, Fees. and to incorporate the complete and amended 20.11.2 

NMAC, into the New Mexico State 

lmplemenlation Plan for air quality (SIP); 

as well as a pmposal to update tbe Title V 

Operating Permits Program by incorporating the aforementioned proposed amendments to 20.1 1.2 NMAC into the Title V 

Program where applicable. 

NEW MEXICO AMhUL 

SHELTERING SERIrICES 

BOARIP 

Regulation and Licensing Depaament - 

Animal Sheltering Services Board 

LEGAL NOTlCE OF 

POSTPONEMENT OF PUBLIC 

HEARING 

AND NOTICE OF BOARD MEETING 

The Regulation and Lica~sing Department, 

Animal S1)cltering Services Board 

("Board"), hereby gives notice that the 

Board has postponed to a fbture date the 

Public Hearing previously sclreduied for 

February 18,2009, with respect to the adoption of rules as follows: 

Title 16, Chapter 24,Part 1 A n i m a 1 

Shellering Services. General Provisions 

Title 16. Chapter 24, Parl2 A n i m a l 

Sheltering Services, Licensure and 

Certification 

Title 16, Chapter 24. Parl3 A n i m a l 

Sheltering Services, Duties of Licensees 

and Cerliiicate Holders 

Title 16. Chapter 24. Part 4 A n i m a l 

Sheltering Services, Complaints, 

Enforcemenl and Disciplinary Action 

Title 16, Chapter 24, Part 5 A n i m a l 

Sheltering Services, Fees 

utes. can be provided in various accessible 

formats. Please contact the board office if a 

summary or other type of accessible format 

is needed. 

Helga Schimkat Adn~inistralor 

Animal Sheltering Services Board 

P.O. Box 25 101 

Sanla Fe, New Mexico 8750.4 

NEW MEXICO 

ENVIR0NPvLENTA.L 

WZPROVEMENT BOARD 

NEW MEXICO ENVIRONlvLENTAL 

IMPROVEMENT BOARD 

NOTICE OF RUL.EMAKMG HEARING 

The New Mexico Environmental 

Improvement Board ("Board") will hold a 

public hearin$ on April 6. 2009 at 10:OO 

a.m. in Room 317 at Ihe State Capilal in 

Santa Fe, New Mexico. The purpose of the 

hearing is to consider the matter oSEIB 08- 

15 (R), proposed revisions to Air Quality 

Control Regulations 20.2.99 New Mexico 

Administrative Code WAC) (Conformity 

to the State Implementation Plan of ' Transportation Plans. Programs, and 

: Projects). 

I The proponent of this regulatory adoption 

Amend, Environmental Health Department, 

P.O. Box 1293, Albuquerque, NM 871 03 or 

electronicnlly at Jarnendficaba.~~~ or by 

phone, 768-2601. 

I Questions regarding this action may be ~h~ New Mexico Animal Sheltering 

directed to Hearing Clerk, Ms. Janice Services Board will convene a Regular 

NOTICE FOR PERSON WITH DISABILITIES: If you have a disability 

andlor require special assistance please call 

(505) 768-2600 I\roice] and special assistance will be made available to you to 

review any public meeting documents, 

including agendas and minutes. m( users 

call the New Mexico Relay at 1-800659- 

833 1 and special assistance will be made 

available to yo11 to review any public meeting documents, including agendas and minules 

and revision is the New Mexico 

Envim~~ment Department (WMED"). 

Board Meeting to take care of regular business on February 18,2009 at 10:OO a.m. at 

the Regulation and Licensing Depment 

offices located at 5200 Oakland Avenue NE. 

Albuquerque. New Mexico. 671 13. The 

public is welcome to attend. Portions OF the 

regular meeting may be closed to the public 

while the Board is in Executive Session. A 

final agenda for the meeting will be available al least 24 hours prior to tbe meeting 

and may be obtained by making a written 

request to the Board at P.0 ,Box 25101, 

Santa Fe, New Mexico 87504, by callmg 

(505) 4761795. by emailing the Board 

Administrator al 

helw.schimka~state.nm.~~~ to beadded to 

the Board's email list for meeting notifications and agendas, or by checking the 

Board's website at: 

~ww.rld.state.nm.us/AnimolSheltenne/ind 

ex.html. 

Il you are an individual wit11 a disability 

who is in need of a reader, amplifier. qualified sign language interpre~er, or any other 

form of auxiliary aid or service to attend or 

participate in the meeting, please contact 

the board ofice at soon as possible Public 

documents, including the agenda and minThe purpose of the public hearing is to consider and lake possible action on a petition 

from the NMED regarding proposed revisions to 20.2.99 NMAC. These proposed 

revisions would incorporate provisions necessary to make 20.2.99 NMAC consistent 

with Clean Air Act section 176(c) as amended by the Sare Accountable Flexible 

Efficient Transportation Equity Act or 

SAFETEA-LU on August 10, 2005 (Pub. 

L. 109-59). The proposed revisions also 

include minor amendments required by federal regulations that are not related to 

SAFETEA-LU. 

The proposed revised reslations may be 

reviewed during regular business hours at 

the NMED Air Quality Bureau office, 1301 

Siler Road, Building B. Santa Fe, New 

Mexico. Full lext oi NMED's proposed 

revised regulations are available on 

NMED's web site at 

www.nmenv.stale.nm.us, or by contacting 

Gail Cooke at (505) 476-4319 or 

gail.cook@state.nm.us. 

The hearing will be conducted in accordance with 20.1.1 WAC (Rulemaking 
pp 

New Mexico Re~ister / Volume XX, Number 2 / January 30,2009 

Procedures - Environmental Improvement 

Board). the Environmental lmprovemenl 

Act. Section 74-1-9 NMSA 1978: the Air 

Quality Control Act Section. 74-2-6 NMSA 

1978. and other applicable procedures. 

All interested persons will be given reasonable opportunity at the hearing to submit 

relevant evidence. data, views and arguments, orally or in writing, to introduce 

exhibits, and Lo examine witnesses. Persons 

wishing to present technical testimony musl 

file with the Board a written notice of intent 

to do so. The notice of intent shall: 

(I) identify the person for whom the witness(es) will testify; 

(2) identify each technical wihless that the 

person intends to present and state the qualifications or the witness, including a 

description of their education and work 

background; 

(3) summarize or include a copy of the 

direct testimony of each technical wimes 

and state the anticipated duration 01 the testimony of that witness; 

(4) list and describe, or attach, each exhibit 

anticipated to be offered by that person at 

the hearing; and 

(5) attach the text of any recommended 

modifications to the proposed new and 

revised regulations. 

Notices of intent ior the hearing must be 

received in the Office of the Board not Later 

than 5:00 pm on March 23, 2009, and 

should reference the docket number, EIB 

08-15 (R), and the date of the hearing. 

Notices of intent to present technical testimony should be submitted to: 

Joyce Medina, Board Administrator 

Office of the Environmental Improvement 

Board 

Harold Runnels Building 

1 190 St. Francis Dr.. Room N-2150 1 2 153 

Santa Fe, hW 87502 

Phone: (505) 827-2425. Fax (50.5) 827- 

2836 

Any member of the general public may testify at the hearing. No prior notification is 

required to present non-technical testimony 

at the hearing. Any such member may also 

offer exhibits in connection with his testimony, so long as the exhibit is not unduly 

repelitious of the testimony. 

A member of the general public who wishes to submit a twitten slatement for the 

record, in lieu of providing oral testimony at 

the hearing, shall file the written statement 

prior to the hearing. or submit it at the hearing. 

Persons having a disability and needing 

help in being a part of this hearing process 1 

should contact Judy Bentley by March 23, 

2009 at the NMED, Personnel Sewices 

Bureau. P.O. Box 261 10. 1 190 St. Francis 

Drive. Santa Fe, New Mesico, 87502. tele1 phone 503-827-9872. TDY users please 

access her number via the New Mexico 

Relay Network at 1-800-659-833 I . 

The Board may make a decision on the proposed revised regulations at the conclusion 

1 of the hearing. - or the Board may convene a 

I meeting at a later date Lo consider action on 

the proposal. 

NEW MEXICO 

ENVIRONMENTAL 

IMPROVEMENT BOARD 

NEW MEXICO ENVIRONMENTAL 

IMPROVEMENT BOARD 

NEW MEXICO ENVIRONMENTPLL 

IMPROVEMENT BOARD 

NOTICE OF PUBLIC HJZARPJG 

The New Mexico Environmental 

I~nprovement Board ("the Board") will hold 

a public hearing after its regularly convened 

meeting on April 6. 2009 at 10 a.m. and 

continuing on April 7, 2009 if necessary in 

Room 3 17. State Capitol. Santa Fe. New 

Mexico 87501, for the purpose of hearing 

the matter in EIB No. 08-18 (R), the New 

Mexico Environment Department's 

("NMED") proposal to adopt amendments 

to 20.5. I NMAC (General Provisions). 

20.5.7 NMAC (Reporting and Investigation 

of Suspected and Confirmed Releases), 

20.5.10 NMAC (Admin~strative Review), 

20.5.12 NMAC (Corrective Action for 

Storage Tank Systems Containing 

Petroleum Products), 20.5.1 3 NMAC 

(Corrective Action for US7 Systems 

Containing Other Regulated Substances), 

20.5.14 NMAC (Cerlification of Tank 

Installers), 20.5.15 NMAC (Corrective 

Action Fund Use and Expenditures), 

20.5.1 6 NMAC (Qualification of Persons 

Performing Corrective Action). and 20.5. I8 

NMAC (Operator Training). 

Earlier this year, the 

Environmental Improvement Board (the 

Board) adopted rules implementing some of 

the prevention and secondary containment 

requirements of the federal Enerm Policy 

Act of 2005 (EPAct). To meet EPAct's 

upcoming deadlines, and improve deparlmental procedures, NMED is now asking 

the Board to adopt the proposed amendments and new rules which will impose 

operator training and certification requirements, improve management of the 

Corrective Action Fund. allow the return of 

properties to productive use after remedia- 

- - - ~ ~pp 

tion. change and streamline requirements 

for certified unk inslallers. clariFy procedures for investigating and reporting releases. establish standards for the qualification 

and disqualification of contracrors, expand 

administrative review procedures. and create a fourtll priority in the lealting storage 

tank ranking system. 

Interested persons may review the 

proposed amendments during regular business hours at the NMED Petroleum Storage 

Tank Bureau, 1301 Siler Road, Building B, 

Santa Fe, NM; NMED's Albuquerque Field 

Office. 5500 Son Antonio Drive NE, 

Albuquerque, NM; on NMED's website at 

www.nmenv.state.nm.us; or by contacting 

Jennifer Pruen at (505) 376-4392 or 

Jennifer.Prue@state.nm.us. 

The hearing will be conducted in 

accordance will1 20. l .I NMAC. 

Rulemaking Procedures for the 

Environmental lmprovement Board; the 

Environmental lmprovement Act, Section 

74-1-9 NMSA 1978; the Hazardous Waste 

Act. Section 74-4-5 NMSA 1978; and other 

applicable procedures. 

All interested persons will be 

given reasonable opportunity at the hearing 

to submit relevant evidence, data, views and 

arguments, orally or in writing. to introduce 

exhibits, and to examine wihesses. 

Persons wishing to present technical testimony must file a written notice of 

intent that: 

(1) identifies the person for whom 

the witness(es) will testify; 

(2) identifies each lecl~niwl witness that the person intends to present and 

state the qualifications of the witness. 

including a description of their education 

and work background; 

(3) summarizes or includes a 

copy of the direct testimony of each technical witness and states the anticipated duration of the testimony of that witness; 

(4) attaches the text of any recommended modifications 10 the proposed regulatory changes; and 

(5) lists and describes, or attaches, all exhibits anticipated to be offered by 

that person at the hearing, including any 

proposed statement of reasons for adoption 

of the rules. 

Notices of intent should reference the docket number. EIB No. 08-18 (R) and the date 

of the hearing and must be received in the 

Board's Office at the following address no 

later than 500 prn on March 20, 2009: 

Joyce Medina. Board Administrator 

Office of the Environmental Improvement 

Board 

Harold Runnels Building 

11 90 St Francis Dr.. Room hr-21 50111 53 

Santa Fe. Near Mexico 87502 

Phone: (505) 827-2425, Fax (505) 817- 

2836 
EIB HEARING, 4/6/09 

1 

STATE OF NEW MEXICO 

ENVIRONMENTAL IMPROVEMENT BOARD 

EIB 08-15 (R) 

IN THE MATTER OF PROPOSED AMENDMEKTS 

TO 20.2.99 NMAC - CONFORMIM TO THE STATE 

IMPLEMENTATION PLAN 

PLANS, PROGRAMS AND 

OF TRANSPORTATION 

PROJECTS. 

TRANSCRIPT OF PROCEEDINGS 

BE IT REMEMBERED that on the 6th day of ~pril, 

2009, this matter came on for hearing before the 

Envi ronmental Improvement Board, New Mexico State 

Capi to1 Building, 490 01 d Santa Fe Trai 1 , Room 317, 

Santa Fe, New M~X~CO, 87501, at the hour of 10:55 a.m. 

GAIL COOKE 

Direct Exami n 

PAGE 

9 

18 

7 1 , i , MARKED/ADMI~ED 

\. , 8 NMED EXHIBIT: 

9 1. Resume of Gail 18 

10 2. written 18 

11 3. Proposed changes to 2D:Z-.99 .NMC 18 

12 4. January 24, 2008, Federal Register Notice - 

Transportation Conformity Rule Amendments 18 

13 

5. Safe, Accountable, Flexible, Efficient 

14 Transportation Equity ~ct: A Legacy for 

Users (P.L. 109-59); able of Contents and 

15 section 6011 (Transportation conformity) 18 

16 6. Spanish and English Hearing Notices 18 

17 7. New Mexico Register Notice of Hearing 18 

18 

19 

2 0 

21 

22 

2 3 

2 4 

APPEARANCES 

For the Environmental Improvement Board: 

MS. KATHI BEARDEN, Hearing Officer 

MR. HAROLD TSO 

MS. KJLORES HERRERA 

MS. GAY OILLINGHAM 

MR. SOREN PETERS 

Envi ronmental Improvement Board 

1190 St. Francis Drive 

Harold Runnels Bui 1 ding 

Santa Fe, NM 87501 

MR. ADRIAN TERRY 

Board Counsel 

For the New ~exico ~nvironment Department: 

1 MS. BEARDEN: We are ready for the hearing 

2 for proposed revisions to 20.2.99 NMAC. we will leave 

3 the Board agenda and go directly into hearing. I am 

4 Kathi Bearden. I am the hearing officer. our 

5 attorney, Mr. Terry, has a statement he would like to 

6 read into the record. 

7 MR. TERRY: It's my understanding from the 

8 Board's administrator that there have been no other 

9 notices of interested parties or notices to present 

10 technical testimony by any party other that the 

11 Department in this case. 

MR. WILLIAM G. GRANTHAM As such, the Board has contemplated taking a 

Assistant General counsel 

Office of General Counsel 

1190 St. Francis Drive, Suite 4065 

Santa Fe, NM 87501 

(505) 827-2824 

bi11.granthMstate.nm.us 

13 majority of the information to be presented at the 

14 hearing today based on the written testimony and the 

15 exhibits that will be presented. 

16 I would just like to briefly make note of the 

17 provisions in the Environmental Improvement ~ct. which 

1 18 is NMSA Section 74-1-9, and remind the Board that in 

1 19 making its decision about this regulation that the 

20 Board shall give the weight it deems appropriate to all 

21 relevant facts and circumstances presented at this 

1 22 public hearing, including, but not limited to, the 

123 character and degree of injury to or interference with 

124 health, welfare, animal and plant life, property and 

1 25 the environment; two, the public interest, including 

KATHY TOWNSEND COURT REPORTERS 
EIB HEARING, 

5 

the social, economic and cultural value of the 

regulated activity and the social, economic and 

cultural effects of the envi ronmental degradation; and, 

three, the technical practicability, necessity for and 

economic reasonableness of reducing, eliminating or 

otherwise taking action with respect to environmental 

degradation. 

So these are some of the things you should be 

considering, especially in light of the fact that not 

all of the testimony today is going to be oral. 

~dditionally, part E of this statutory 

section says that "The Board shall allow all interested 

parties reasonable opportunity to submit data, proposed 

changes to the proposed regulation, views and 

arguments, either orally or in writing, and to examine 

witnesses testifying at the hearing. 

with that, if you would like to continue, 

Madam Hearing officer. 

MS. BEARDEN: Thank you, Mr. Terry. 

~t this time, before I begin the hearing 

officer script, I'd like to identify if there is 

anybody in the audience who intends to make public 

comment during this hearing process. 

~aving identified none, this is a hearing in 

EIB matter eight to consider proposed amendments to 

6 

20.2.99 NMc, conformity to the SIP of Transportation 

Plans, Programs and Projects, EIB 08-15 (R). 

My name is Kathi searden. I am the EIB 

member who is designated as hearing officer in this 

matter for the ~oard. The time is now 10:57 a.m. We 

are meeting in Room 317 at the Capitol on April 6th, 

2009. 

we are here to consider the petition for 

rule-maki ng submitted by the Environment Department. 

This hearing will be conducted in accordance with the 

Board's rule-making procedures. 

This hearing will be conducted in a fair and 

impartial manner so as to assure us that the relevant 

facts are fully elicited and to provide a reasonable 

opportunity for all persons to be heard without 

burdening the record with unnecessary repetition. 

The Rules of Civil procedure and evidence 

shall not apply to this hearing. As hearing officer, I 

will make such orders as may be necessary to preserve 

decorum and to protect the orderly hearing process. 

TO that end, I ask that all persons at this 

heanng please turn off all cell phones, pagers and 

beepers. ~t this time, I need to ask the Department, 

will your testimony today be identical to your written 

testimony it previously submitted to the Board 

KATHY TOWNSEND 

505-243-50 

4/6/09 

7 

1 regarding this matter? 

2 MR. GRANTHAM: Madam Hearing officer, the 

3 witness will have some additional summary testimony, 

4 but she will testify to it, her written testimony, and 

5 adopt that as her testimony in this hearing. 

6 MS. BEARDEN: Thank you. In consideration of 

7 the ~oard's detailed review of the submitted written 

8 testimony, please only provide a succinct recitation of 

9 the essential facts relating to the rule-making 

10 hearing. 

11 The hearing process shall be as follows: ~ll 

12 testimony will be taken under oath. Any party may make 

13 an opening statement. we will begin with the 

14 ~epartment's witnesses , then cross-examination of the 

15 Department's witnesses, the Department's rebuttal 

16 testimony of its witnesses, public comment and closing 

17 argument and then we would close the record. 

18 A note on questioning, cross-examination and 

19 the sequence of cross-examination: ~f witnesses 

20 testify as members of the panel, clarifying questions 

21 and cross-examination of said witnesses will occur only 

22 after all panel members have testified. 

2 3 The Environmental Improvement Board members 

24 may ask clarifying questions and cross-examine 

25 individual witnesses or witness panels only at the 

8 

1 conclusion of all direct testimony by said individual 

2 witnesses or witness panels. 

3 Let us begin. Does any party wish to make an 

4 opening statement? 

5 MR. GRAMHAM: G ad am Hearing Officer, I have 

6 a brief opening statement. 

7 MS. BEARDEN: please continue. 

8 MR. GRANTHAM: Good morning. For the record, 

9 my name is sill ~rantham. I represent the 

10 Environmental Protection Division of the New Mexico 

11 Environment Department in this matter of proposed 

12 amendments to 20.2.99, Conformity to the state 

13 ~mplementation plan of rans sport at ion Plans, Programs 

14 and Projects. 

15 The petition for this regulatory change was 

16 filed on September lath, 2008. The request for this 

17 hearing was made at the Board's regularly scheduled 

18 meeting on October 6th and the hearing was set for 

19 today at that meeting. 

2 0 The Notice of Intent was filed on March 19th, 

21 2009, and that included detailed written testimony of 

22 Gail cooke, who will be testifying here today. 

23 These rule changes are in response to changes 

24 in the federal transportation conformity rules which 

25 were promulgated on January 28th, 2008, and Ms. cooke 

COURT REPORTERS 

18 
EIB HEAR 

9 

is here to provide testimony and answer any questions 

regarding her oral or written testimony. 

And at this time, if it's appropriate, I 

VG, 4/6/09 

11 

1 Administrative code, conformity to the State 

2 ~mplementation Plan of Transportation Plans, Programs 

3 and Projects. 

would like to call Gail cooke as the Department's first 1 4 New Mexico Exhibit 3 reflects the 

and only witness, and I understand you would like her 1 5 Department's proposed amendments in current NMaC 

to sit at the end of your dais here? 

MS. BEARDEN: Yes. 

6 format. A section-by-section table of proposed 

7 amendments is also included in my written testimony. 

GAIL COOKE 1 The proposed amendments are shown in standard 

after having been first duly sworn under oath, 

was questioned and testified as follows: 

DIRECT EXAMINATION 

9 legislative format: New material is underlined and 

10 deleted material is stricken or designated as 

11 stricken. ~uring my testimony, I will refer to this 

BY MR. GRAMHAM: 1 12 regulation as "Part 99." Revisions to Part 99 are also 

Q. ~ood morning. Please state your name for the 1 13 part of New Mexico's federal grant requirements with 

record. ( 14 EPA. 

A. MY name is Gail cooke. 1 Q. Ms. cooke, you refer to your "written 

Q. And where do you work? 

A. I work for the New Mexico Environment 

16 testimony." 

17 Is that the testimony that is marked NMED 

Department, Environmental Protection Division, Air 118 Exhibit 2? 

Qua1 ity Bureau. A. Yes, it is. 

Q. what do you do for the Air Quality Bureau? 

A. I develop and review state implementation 

2 0 Q. ~nd did you prepare that testimony yourself? 

2 1 A. yes, I did. 

plans and community initiation projects as well as 1 22 Q. what does "transportation conformity" mean? 

develop regulatory language and conduct public A. Transportation conformity is a requirement 

outreach. 124 

that was promulgated by the EPA in 1993 for areas that 

Q. And how long have you been in your current 

10 

position? 

A. ~oughly ten years. 

25 are in nonattainment or noncompliance for one of the 

1L 

1 six federal criteria pollutants. 

2 The purpose of transportation conformity is 

Q. And what did you do before taking that I 3 to take transportation projects into consideration in 

position? 1 4 nonattainment areas so as to not compound an existing 

A. I was an environmental consultant with a fi rm 

in nl buquerque. I did, basically, National 

Environmental Pol icy nct work dealing mainly with 

5 problem with air pollution. 

6 Transportation projects and plans must 

7 conform with the nonattainment State Implementation 

highway projects. 1 8 Plans for the area and help with the process rather 

Q. Can you please describe your educational 1 9 than hinderit. 

background? Q. Can you explain what a nonattainment area is? 

A. Yes. I have an undergraduate degree in 

envi ronmental design from Texas AM University and I 

11 A. A nonattainment area is an area that has 

12 exceeded one of the six criteria pollutants, and these 

have a master's degree in urban and regional planning 1 13 are lead, sulfur dioxide, nitrogen oxides, ozone and 

from Virginia Tech University. ( 14 particulate matter, ten microns in size of particulate 

Q. And are you familiar with what has been 

marked NMED Exhibit 1, a copy of your resume? 

A. Yes, I am. 

15 matter and 2.5 microns in size of particulate matter. 

16 Q. And why is transportation conformity required 

17 in nonattainment areas? 

Q. 1s that an accurate copy of your current A. Transportation conformity is important 

resume? 

A. Yes, it is 

19 because mobile sources, such as vehicle emissions, are 

20 primary sources of pollution in many areas. 

a. Can you tell the chair or the Board what your 1 21 Q. why are amendments to Part 99 necessary at 

purpose is here today? 

A. Yes. Madam chair. embers of the Board, I am 

22 this particular time? 

2 3 A. The proposed revisions to Part 99 are in 

here to present the New Mexico Environment Department's 124 response to amendments to the federal conformity rule 

proposed amendments to 20.2.99 New Mexico 25 The EPA has revised the federal rule in the last 

KATHY TOWNSEND COURT REPORTERS 

505-243-501 8 
El6 HEARING, 4/6/09 r 

13 

1 year-and-a-half. 

15 

1 nonattainment area in your written testimony? 

1 Host of these amendments are necessary to ( 2 A. Yes, there was. Although there are no areas 

1 3 make the rule consistent with the Clean Air Act section 1 3 right now besides Anthony, New M~X~CO, that will be 

1 4 176(c) as it was amended by the Safe, Accountable, ( 4 

affected by today's proposed revisions, Part 99 will 

5 Flexible, Efficient Transportation Equity nct, what is 

6 called "SAFETEA-LU," which was prbmulgated on nugust 

5 affect any nonattainment areas that are designated in 

6 the future. 

( 7 10, 2005. 1 One such area is Sunland Park, New Mexico, 

The relevant portions of SAFETEA-LU have been 

9 included in the Notice of Intent as NMED Exhibit 5. I 8 which this area is currently in violation for the new 

9 eight-hour ozone ~ational Ambient Air Quality Standard 

1 10 The EPA'S transportation conformity rule amendments in 1 10 of 0.075 parts per million. 

I 11 response to SAFETEA-LU are included in NMED ~xhibit 4. 111 This area will not be officially designated 

Q. In general terms, what is the overall effect (12 as nonattainment by the €PA until mrch of 2010. ~nd 

1 15 to include more time for the transportation planning 1 15 designated nonattainment. So it would be March 2010. 

13 of the proposed amendments? 1 A. The main revisions to the rule will be able 

1 16 progress, and there is some language clarification and 1 16 ~lso in my testimony, I will refer to San 

13 the transportation conformity, this rule would go into 

14 effect for that area one year after the area is 

I :: some consistency changes. 

Q. Does your written testimony go into detail 

17 Juan County, which was another area we thought would 

18 also be in nonattainment of the new eight-hour National 

( 19 explaining what each of the particular changes are? 1 19 mbient ni r Quality Standard, but there has been some 

2 0 A. yes. 

2 1 Q. what New Mexico agencies will be affected by 

22 the amendments to this rule? 

20 question as to the validity of the monitoring data for 

21 this area. 

22 So the Environment Protection Agency and NMED 

1 23 A. here are two agencies in New Mexico that 1 23 are currently evaluating that data to determine the 

1 24 will be affected by this rule: The ni r ~uality Bureau / 24 areas in compliance with the new federal ozone 

25 and the Department of Transportation. The Air Quality 

14 

1 Bureau adopts the regulation, but both agencies are 

1 2 required to carry out the regulation. 

25 standard. So that's still up in the air as to whether 

16 

1 or not that area will be affected, as well. 

2 Q. And just for the record, the Division 

I And the New ~exico DOT has been briefed on 1 3 submitted a notice of corrected testimony on that, 

1 4 these changes and has reviewed the changes and did not ( 4 correcting the written testimony on that issue, on 

1 5 have any comments. 1 5 April Znd, along with some other ministerial errors in 

Q, what form did your communication take with I : the testimony. 

7 the DepartnWnt of Transportation? I id the Air Quality Bureau provide a public 

I A. It was verbal, one-on-one communication, as ( 8 comment period for this proposed rule? 

9 well as I did presentations for the New Mexico 

10 Department of Transportation on its rule revision. 

11 Q. How many nonattainment areas exist in New 

9 A. Yes, we did. 

1D Q. nnd can you explain when and how that was 

11 conducted? 

1 12 Mexico? A. public notice, according to EIB's rule-making 

13 A. well, presently, there is only one under the 

14 Department's jurisdiction in New Mexico. The 

15 nonattainment area is located in southern Dona Ana 

13 regulations, required that notice be published in the 

14 newspaper of general circulation and the New Mexico 

15 Register, which was done. The newspapers' notice was 

/ 16 County, in nnthony, New M~X~CO, and nnthony was 116 published in English and Spanish. 

17 designated nonattainment by the EPA for PM10, which Q. ~nd did you receive any public comnent in 

18 m10 is ten microns in size or less, in 1991. 18 response to those notices? I l7 

19 Today's proposed revisions to Part 99 will 

20 not affect the nonattainment area in Anthony. This 

21 area was designated nonattainment for PM~O due solely 

22 to high wind events and not emissions from mobile 

23 sources. So the Department's proposed revisions today 

24 only apply to mobile sources. 

19 A. NO, I did not. 

2 0 Q. nnd is the public notice contained in what 

21 has been marked as NMED Exhibit 6? 

22 A. Yes, for the Federal Register notice -- or, 

23 sorry, the New Mexico Register notice -- no. Wait. 

24 I'm sorry. The newspaper notice is in Exhibit 6. 

2 5 Q. Was there a reference to a different 25 sorry. 

KATHY TOWIVSEWD COURT REPORTERS 
MR. TERRY: Yes. 

MS. BEARDEN: Are there any questions? 

EIB HEARING, 

17 

Q. And those are in Spanish and English? 

A. Yes, they are. 

Q. And was there a notice of this hearing 

published by the Department? 

A. yes, there was. 

Q. nnd those would be the exhibits -- those 

would be the notices that are marked NMED Exhibit 7; is 

that correct? 

A. yes. 

Q. DO these rule amendments affect small 

businesses in New Mexico? 

A. NO, they do not. The rule only affects the 

air quality and transportation planning process used by 

government agencies. SO government agencies are the 

only entities that are actually affected by this rule. 

Q. And what would be the consequence if the 

proposed rule amendments are not adopted by the 

Environmental Improvement ~oard? 

A. A notice of deficiency would be issued by the 

EPA and a federal implementation plan would be put into 

place by them, and, also, there is -- an issue of 

primacy might be at stake. 

MR. GRANTHAM: Thank you. Madam Hearing 

Officer, Members of the Board, I have no more questions 

for the witness, and I would l i k e t o move for admission 

18 

of NMED ~xhibits 1 through 7. 

MS. BEARDEN: So ordered. 

MR. TERRY: YOU say "admitted." 

MS. BEARDEN: 1'm sorry, so admitted. 

(NMED Exhibits 1 through 7 admitted.) 

MR. TERRY: yes. 

MS. BEARDEN: There is no cross-examination 

of the Department witness, no rebuttal testimony at 

this time. I guess we go to the Board and ask for 

questions? 

11 when you go into a conformity lapse, there are a lot of 

12 things that end up happening, which the main one is the 

4/6/09 

19 

1 MS. COOKE: If you look underneath there, it 

2 explains why the actual changes were made, but it was 

3 done to make the rule consistent EPA's PM2.5 

4 implementation rule, which instead of using the term 

5 "sulfur oxides," they changed it to "sulfur dioxides" 

6 because this is the actual criteria pollutant that the 

7 EPA has a National Ambient ~ir Quality Standard for. 

8 MR. TSO: I see. This has no reference to a 

9 change in the chemistry of these? 

10 MS. COOKE: No, it does not. 

11 MR. TSO: okay. Thank you. 

12 Another question I have is will a new SIP be 

13 required when these new motor vehicle emission 

14 regulations take effect? 

15 MS. COOKE: No, it will not. This is not 

16 tied to -- you're talking about the clean cars rules? 

17 MR. TSO: Yes, ma'am. 

18 MS. COOKE: NO. This is not tied to that at 

19 all. 

20 MR. TSO: Thank you. And this is just an 

21 ignorance question, can you explain "lapse grace 

22 period"? 

23 MS. COOKE: oh, yes. ~asically -- 

24 MR. TSO: It sounds theological. 

25 MS. COOKE: -- when you have a transportation 

20 

1 conformity, or to require it for an area, you have it 

2 for a certain time period. ~t's for a ten-year time 

3 period. ~nd you have to do revisions during that time 

4 period, as well as make sure that you have continuing 

5 plans and updates and basically approvals. 

6 And if you don't follow that sequence and you 

7 don't do what's required and you miss part of those 

8 days, you miss submitting a plan, it goes into what's 

9 called "conformity lapse," which basically means you 

10 have not done your required planning for the area, and 

Mr. TSO? 1 13 transportation funding can be taken away from that 

EXAMINATION 1 14 community, and this actual1 y happened to ~lbuquerque 

BY THE BOARD: 1 15 several, several years ago. 

MR. TSO: Madam chair, I have several. nnd so you have to make sure that you have 

The first question I have is on page three of up-to-date plans, those plans are basically reviewed 

your written testimony, let's see if I have got it 1 18 and submitted on time, and when they are not, like I 

MS. COOKE: Uh-huh. MR. TSO: Thank you. Thank you, ada am 

right, down there at the bottom, the last item on that 

page, it's a table? 

19 said, then you go into what's called "conformity 

20 lapse." 

MR. TSO: And it refers to -- it states: 

"~emoved 'sulfur oxides (SOX)' and added in its place 

'sulfur dioxide (~02). '" 

22 Hearing officer. 

23 MS. BEARDEN: Ms. Herrera? 

2 4 MS. HERRERA: NO. 

Why was this changed? 25 MS. BEARDEN: Mr. Peters? 

KATHY TOWNSEND COURT REPORTERS 

505-243-501 8 
EIB HEARING, 4/6/09 I 

21 

MR. PETERS: I have a question about the 

nonattainment areas in Southern Dona Aria County. 

MS. COOKE: okay. 

MR. PETERS: The sunland Park ozone 

nonattainment, as well as the PM10, do they overlap 

down there, or is it a large county with lots of space 

in between? 

MS. COOKE: NO. The PMlO nonattainment area 

is actually just Anthony. It's a very small 

nonattainment area. The sunland park area, what we 

have recommended to the EPA for that boundary would 

only include santa Teresa, La union and at sunland 

park. And it actually cuts off right below Anthony. 

we actually don't have high levels of ozone within 

nnthony. 

MR. PETERS: And within Anthony, you said 

that was a storm event? 

MS. COOKE: Yes. Anthony was designated a 

nonattainment area back in 1991, and since then, EPA 

has put into place what's called a "~at~ral Events 

Policy Act." It's actually a rule now. 

so it's the national rule which takes high 

wind events into consideration. So areas in the West 

especially that have large dust storms won't be 

considered a nonattainment area. They have another 

22 

planning process that they do for these high wind 

events. ~nd that was actually not in place when 

Anthony was designated nonattainrnent. 

so the only reason it was designated 

nonattainment was because of dust storms, and we have 

not been able to redesignate this area at this time. 

~t's a very specialized area. 

Any other place around the united States that 

has a nonattainment area, most likely mobile source 

plays a small part at least in it being a nonattainment 

area, and Anthony, that's not the case. 

MR. PETERS: Have there been any studies to 

understand whether there is overgrazing or poor land 

management in the area to enhance those storms or make 

them more problematic as far as PMlO? 

MS. COOKE: ~ctually, wna Ana county has 

what's called a Natural Events Action Plan, and, 

basically, what it does is it takes into account 

man-made sources of dust or potential sources of dust 

in that area. 

And, honestly, we have not done an in-depth 

study, but from the complaints we get, a lot of it has 

to do with construction, a l o t o f it has to do with 

housing construction, and we got very few complaints 

2 3 

A lot of it has to do some with highway 

department projects, where they will blade the area. 

we get some complaints from roads and stuff like that, 

but a lot of it is from construction sites, and, also, 

sometimes we just get those huge regional storms and 

all of Arizona blows in and hits us and then we blow on 

to Texas. 

MR. PETERS: Thank you. That's all. 

MS. BEARDEN: MS. oillingham? 

MS. DILLINGHAM: This is not really specific 

to that, but I would just like to second soren's 

question, because overgrazing would cause more PM~O or 

2.5 problems. 

Santa Teresa, the other region, though, the 

nonattainment there, how much of that has to do with 

any of the industry there versus the mobile sources? 

Ms. COOKE: Actually, within sunland park, 

this is an issue that we have been dealing with. 

sunland park was actually designated nonattainment 

before for the one-hour standard back in 1995, and the 

state Implementation Plan and what we have submitted 

since then basically states that sunland park is not 

generating enough emissions for that area to be 

considered nonattainment. 

A lot of the emissions that we get are from 

24 

El Paso and Juarez, but, regardless, the Clean nir ~ct 

still requires that that be a nonattainment area. we 

cannot just say, "oh, it's them and we are not going to 

do anything" because we still are in violation and we 

need to do what we can in New Mexico. 

And, unfortunately, like I said, it's not 

really the New Mexico side, but, like I said, for ozone 

nonattainment areas especially, it's almost impossible 

to say "Motor vehicles are contributing nothing." You 

still have to do transportation conformity. YOU still 

have to look at what they possibly contribute, even if 

it is a small amount, and in sunland Park, it is a very 

small amount. 

MS. DILLINGHAM: That's interesting. 

MS. COOKE: ~t is. 

MS. DILLINGHAM: I don't have any other 

questions. Thank you. 

MS. BEARDEN: I just have a comment. I was 

fortunate to hold hearings in sunland Park two years 

ago where there was great detail about the dust blowing 

in mthony, and, also, the situation in sunland Park, 

including -- I'm sorry, the company -- 

MS. COOKE: ASARCO. 

MS. BEARDEN: ASARCO. The Department and the 

actually about overgrazing of land. 25 state actually opposed things happening in Texas. So 

KATHY TOWNSEND COURT REPORTERS 
1 Okay. Is there any rebuttal examination, Mr. 1 MR. TERRY: I don't believe so. 

EIB HEARING, 4/6/09 

1 5 Grantham? 1 MS. BEARDEN: Okay. we have a motion and a 

25 

1 it was good working with the Department. They are 

2 doing what they can to help that area. 

3 Any other questions from the Board? 

6 MR. GRANTHAM: NO, ma'am. NO rebuttal 

7 questions. 

8 MS. BEARDEN: Okay. Thank you. Thank you, 

2 7 

1 Any discussion by Board members? 

2 Do we need anything additional, Mr. Terry, at 

3 this time? 

6 second to adopt the proposed revisions. 

7 nll in favor signify by saying aye; opposed, 

8 same sign. The motion carries. We have adopted the 

10 comment because it is part of the hearing. 

1s there anyone who wishes to make public 

1 9 Ms. Cooke. ~t this point then, we will go to public 

10 would you tell me, Mr. Terry, the Statement 

11 of Reasons, will that be at the next meeting? 

1 9 revisions. 

1 12 comment? MR. TERRY: Yes. 

1 l3 Closing argument. Mr. Grantham? MS. BEARDEN: okay. Thank you. That 

1 l4 MR. GRANTHAM: G ad am Hearing Officer, I would 1 14 worked. 

15 ask that if the eoard requires closing argument that 

16 those would be made in writing; otherwise, I believe 

17 the witness' written and oral testimony will be 

1 18 

sufficient for the Board to make its decision. I l8 

19 MS. BEARDEN: closing argument is optional by 

20 the Department. 

2 1 SO anything else from the Board? 

(proceedings concluded at 11:25 a.m.) 

Mr. Terry, I believe we are ready to close 

1 23 

the hearing. we have now heard all testimony and I 23 1 24 arguments, and the record is closed. ) 24 

2 5 hank you, Ms. cooke, Mr. Grantham. 

26 

1 nt this time, we may take the next step in 

25 

2 8 

1 STATE OF NEW MEXICO 

2 the process, we may deliberate and make a decision on 

3 the proposed regulatory change. We can adopt, nullify 

4 or reject a proposal. If we vote to modify the 

5 language, we need to explain why the modification is a 

6 logical outgrowth of the original proposal. 

7 Do we wish to discuss the DroDosal, or are we 

I make a motionthat we accept the New Mexico 

16 Environment oepartment's proposed revisions to 20.2.99 

2 

3 COUNTY OF BERNALILLO : 

4 I, the undersigned Court Reporter, HEREBY 

5 CERTIFY that the foregoing hearing was recorded by me 

6 by machine shorthand; that I later caused my notes to 

7 be transcribed under my personal supervision; and that . . 

8 ready for a proposed motion on this hearing today? 

9 MS. DILLINCHAM: I an ready for a motion if 

10 the others are. 

11 MS. BEARDEN: I think we are ready for a 

12 motion. 

13 MS. Dill i ngham? 

14 MS. DILLINGHAM: I will make it. 

17 NMAC, conformity to the SIP of transportation plans, 

18 programs and projects, which is EIB 08-15, and I make a 

19 motion that we accept as the Environment Department has 

20 proposed. 

2 1 MS. BEARDEN: IS there a second to the 

22 motion? 

23 MS. HERRERA: Second. 

8 the foregoing is a true and accurate record, to the 

9 best of my ability, of said proceedings. 

10 I FURTHER CERTIFY that I am not a relative or 

11 employee of any of the parties or attorneys involved in 

12 this matter and that I have no personal interest in the 

13 final disposition of this matter. 

14 DATED this 8th day of April, 2009. 

15 

I 24 

MS. BEARDEN: Second by MS. Herrera. I 24 

DENISE KOPAN, NM CCR #I24 

License Expi ration : 12/31/09 

2 5 Discussion? 25 

KATHY TOWNSEND COURT REPORTERS 
EIB HEARING, 4/6/09 

'sulfur [z] - 18:23, 

1 8:24 

1 -- 

1~41 -319, 10:16, 1811, 

18:5 

IO[I] - 13:7 

109-59111- 3~14 

10:55 [I] - I :2O 

10:57 (11 - 6:5 

1190[2] -216, 2112 

11 :25 111 - 27~15 

12/31109[1] - 28:19 

176(~[1] - 124 

18[8] - 3:4, 3:9, 3:10, 

3:11, 3:12, 3:15, 

3:16, 3:17 

18th [I] - 8~16 

1991 (21 - 14:18, 21119 

1993 [I] - 11 :24 

1995 [I] - 23:20 

19th (11 - 8120 

317121 -1:19, 6:6 Act[v - 3:14, 4:17, 

10:7, 13:3, 13:5, 

4 21:21.24:1 

action [I] - 5:6 

Action 111 - 22:17 

4[2]- 3~12, 13:11 activity [I] - 5:2 

4065[1] - 2:12 actual [z] - 19:2, 19:6 

490[1] - 1119 added [I] - 18:23 

additional [2] - 7:3, 

5 27:2 

Additionally [I] - 5:11 

5[2] - 3:13, 13:9 Administrative [I] - 

505 [I1 - 2:13 11:l 

administrator 111 - 4:8 

6 admission [I] - 17:25 

admitted 131 - 18:3. 

18:4, 185 

6131 -3:16, 16121, adopt 131 - 75, 26:3, 

16:24 275 

6011 [I] - 3:15 adopted (21 - 17:17, 

6th 131 - 1:16.6:6,8:18 27:B 

adopts [I] - 14:l 

7 ADRIAN [I] - 2:8 

affect 131 - 14:20, 

155, 17:lO 7141- 3:17, 17~7, 1811, 

185 affected [q - 13:21, 

13:24, 15:4, 16:1, 74-1-9 [I] - 4~18 17:15 

8 affects [I] - 17:12 

-- agencies (51 - 13:21, 

13:23, 14:1, 17:14 

827-2824 [I] - 2:13 Agency [I] - 1522 

87501 [31- 1:20,2:7, agenda 111 - 4:3 

2:12 ago [2] - 20:15, 24:20 

8th [I] - 28:14 Air[~o] - 9:18, 9:20, 

13:3, 13:24, 13:25, 

9 15:9, 1519, 16:7, 

19:7, 24:l 

air 131 - 12:5, 15:25, 

9 111 - 3:3 17:13 

99 [el - 11:12, 12:21. A[buquerque[z] - 

12:23, 14:19, 154 10:6, 20:14 

allow [I] - 512 

A almost [i] - 24:8 

Ambient (31 - 15:9. 

A&M [I] - 10:12 1519, 19:7 

a.m 131 - 1:20, 6:5, amended [I] - 13:4 

27: 15 AMENDMENTS [i] - 

ability [I] - 28:9 

able [a - 13:14, 22:6 

accept [z] - 26:15, 

26:19 

accordance [I] - 6:10 

according [I] - 16:12 

account [I] - 22:18 

Accountable [z] - 

1 :4 

amendments [14] - 

525, 8:12, 10:25, 

1115, I1 17, 1 I :8, 

12:21, 12:24, 13:2, 

13:10, 13:13, 13:22, 

17:10, 17:17 

Amendments [I] - -.A rn J.IL 

3:13, 13:4 amount [z] - 24:12, accurate [z] - 10:18, 24:13 

28:8 Ana 131 - 14:15, 21 :2, 

KATHY TOWNSEND COLIRT F 

505-243-501 8 

22:16 

AND [I] - 1:5 

animal [I] - 4:24 

answer [I] - 9:l 

Anthony pz] - 14:16. 

14:20, 153, 21:9. 

21:13, 21:15, 21:16, 

21:18, 22:3, 22:11, 

24:21 

apply 121 - 6:18, 14:24 

appropriate [q - 4:20, 

9:3 

approvals [I] - 205 

April 141 - I :16, 6:6, 

16:5, 28:14 

area (331 - 12:8, 12:10, 

12:11, 14:15, 14:20, 

14:21, 15:1, 15:7, 

15:8, 15:11, 15:14, 

15:17, 15:21, 16:1, 

20:1,20:10,21:8. 

21:10, 21:19,21:25, 

22:6, 227, 22:9, 

22:11, 22:14,22:20, 

23:2, 23:23, 24:2, 

25:2 

areas1111 - 11:24, 

12:4, 12:17, 12:20, 

14:11, 15:2, 15:5, 

15:24,21:2, 21 :23. 

24:8 

argument 141 - 7:17, 

2513, 2315, 2519 

arguments (21 - 515, 

25:24 

Arizona [I] - 23:6 

ASARCO [z] - 24:23, 

24:24 

Assistant [I] - 2:11 

assure [I] - 6:13 

attorney [I] - 4:5 

attorneys [I] - 28:ll 

audience [I] - 5:22 

August (11 - 13:6 

aye [I] - 27:7 

background [I] - 

1 0:lO 

based [I] - 4:14 

BE [I] - 1:16 

Bearden [z] - 4:4, 6:3 

BEARDEN [ZZ] - 2:3, 

4:1, 5:19, 7:6,8:7, 

9:7, 18:2, 18:4, 187, 

18:12, 20:23,20:25, 

23:9, 24:18, 24:24, 

25:8, 2319, 26:11, 

26:21, 26:24,27:5, 

27:13 

beepers [I] - 6:23 

begin 131 - 520, 7:13, 

8:3 

below[r] - 21:13 

BERNALILLO [I] - 

28:3 

best [I] - 28:9 

between [I] - 21:7 

Bill [I] - 8:9 

bill.grantham@state 

.nm.us[i] - 2:13 

blade [I] - 23:2 

blow [I] - 23:6 

blowing [I] - 24:20 

blows [I] - 23:6 

BOARD [z] - 1:l. 

18:15 

Board [z3] - 1:18,2:2, 

25, 2:8, 3:4, 4:3, 

4:12, 4:18, 4:20, 

5:12, 6:5, 6:25, 7:23, 

10:21, 10:23, 17:18. 

17:24, 18:9, 25:3, 

25:15,25:18, 25:21, 

27:l 

Board's [4] - 4:8, 6:11, 

7:7, 8:17 

bottom [I] - 18:19 

boundary[i] - 21 :I 1 

brief [I] - 8:6 

briefed [I] - 14:3 

briefly [I] - 4:16 

Building 12) - 1 :I 9, 2:6 

burdening 111 - 6:16 

Bureau 151 - 9:19, 

9:20, 13:24, 14:1, 

16:7 

businesses [I] - 17:ll 

BY p] - 9:12, 18:15 

cannot [I] - 24:3 

Capitol [z] - 1 :19. 6:6 

carries [I] - 27:8 

carry [I] - 14:2 

cars 111 - 19:16 

case lz] - 4:11, 22:ll 

caused ]I] - 28:6 

CCR[I] - 28:18 

-11 [I] - 6:22 

certain [I] - 20:2 

CERTIFY - 28:5, 

28:lO 

Chair p] - I O:21, 

10:23, 18:16 
EIB HEARING. 4/6/09 

change [31- 8:15, 

19:9, 26:3 

changed (21 - 18:25, 

195 

Changes [I] - 3:11 

changes [a] - 5:14, 

8:23, 13:17, 13:19, 

14:4, 19:2 

character [I] - 4:23 

chemistry (I] - 19:9 

circulation [I] - 16:14 

circumstances [I] - 

4:21 

Civil [I] - 6:17 

clarification [I] - 

13:16 

clarifying [2] - 7:20, 

7:24 

Clean 121 - 13:3, 24:l 

clean [I] - 19:16 

close [2] - 7:17, 2522 

closed [I] - 2524 

closing 121 - 7:16, 

2515 

Closing [z] - 25:13, 

251 9 

Code [I] - 11 :1 

comment r] - 523, 

7:16. 16:8, 16:17, 

24:18. 25:10, 2312 

comments [I] - 145 

communication 12) - 

14:6; 14:8 

community 121 - 9:22, 

20:14 

company [I] - 24:22 

complaints 131 - 22:22, 22:24, 23:3 

compliance [I] - 15:24 

compound [I] - 12:4 

concluded [I] - 27:15 

conclusion [I] - 8:l 

conduct [I] - 9:23 

conducted 131 - 6:10, 

€212, 16:ll 

conform [I] - 12:7 

CONFORMllY [I] - 

1:4 

conformity [iq - 8:24, 

11 :22, 11 :23, 12:2, 

12:16, 12:18, 12:24, 

13:10, 15:13,20:1, 

20:s. 20:11, 20:19, 

24:10, 26:17 

Conformity [q - 3:12, 

3:15, 6:1, 8:12, 1l:l 

consequence [il - 

17:16 

consider [z] - 5:25, 

6:8 

consideration 131 - 

7:6, 12:3, 21 :23 

considered [2] - 

21 :25, 23:24 

considering [I] - 5:9 

consistency [I] - 

13:17 

consistent [2] - 13:3, 

19:3 

construction p] - 22:23,22:24. 23:4 

consultant [I] - 105 

contained [I] - 16:20 

contemplated [I] - 

4:12 

Contents [I] - 3:14 

continue 121 - 517, 

8:7 

continuing [I] - 20:4 

contribute [I] - 24:ll 

contributing 111 - 24:9 

COOKE 1161 - 312, 9~8, 

18:21, 19:l. 19:10, 

19:15, 19:18, 19:23, 

19:25, 21 :3, 21:8. 

21:18. 22:16, 23:17, 

24: 15, 24:23 

Cooke[gi- 3:9, 3:10, 

8:22, 8:25, 9:4, 9:15, 

1 1 :15, 259, 2525 

Copy[2] - 10:16, 10:18 

correct [I] - 17:8 

corrected [I] - 16:3 

correcting [I] - 16:4 

Counsel (31 - 2:8, 

2:11,2:11 

County [4] - 14:16, 

15:17. 21:2, 22:16 

county [I] - 21:6 

COUNTY[I] - 28:3 

Court [I] - 28:4 

criteria 13) - 12:1, 

12:12, 19:6 

cross [q - 7:14, 7:18, 

7:19, 7:21, 7:24, 

18:7 

cross-examination 151 

- 7:14. 7:18. 7:19, 

7:21, 18:7 

crossexamine [I] - 7:24 

cultural 121 - 5:1, 5:3 

current [3] - 9:25, 

10:18, 11:5 

CU~S[I] - 21:13 

KATHY TON 

dais [I] - 9:6 

data [3] - 5:13, 15:20, 

15:23 

date [I] - 20:17 

DATED[i] - 28:14 

days [I] - 203 

dealing 121 - 10:7. 

23:18 

decision [3] - 4:19, 

25:l 8. 26:2 

decorum [I] - 6:20 

deems [I] - 4:20 

deficiency [I] - 17:19 

degradation [q - 5:3, 

5:7 

degree [3] - 4:23, 

lO:ll, 10113 

deleted [I] - 11 :10 

deliberate [I] - 26:2 

DENISE [I] - 28:18 

Department 1151 - 2:9, 

4:11, 6:9, 6:23, 8:11, 

9:18, 13:25, 14:7, 

14:10, 17:4, 18:8, 

24:24,25:1, 2520, 

26:19 

department [I] - 23:2 

Department's [g] - 7:14, 7:15, 9:4, 

10:24, 11:5, 14:14, 

14:23,26:16 

depth [I] - 22:21 

describe [I] - 10:9 

design [I] - 10:12 

designated [I I] - 6:4. 

ll:lO, 14:17, 14:21, 

23:19 

detail [2] - 13:18, 

24:20 

detailed [2] - 7:7, 8:21 

determine [I] - 15:23 

develop 121 - 9:21, 

9:23 

different [I] - 14:25 

DlLLlNGHAM [6] - 2:4,23:10, 24:14, 

24:16, 26:9, 26:14 

Dillingham [z] - 23:9, 

26:13 

dioxide [2] - 12:13, 

18:24 

dioxides [I] - 195 

direct [I] - 8:l 

Direct [i] - 3:3 

DIRECT[i] - 9.1 1 

directly [t] - 4:3 

discuss [I] - 26:7 

Discussion [I] - 26:25 

discussion (11 - 27:l 

disposition [i] - 28:13 

Division [3] - 8:10, 

9:18, 16:2 

DOLORES [I] - 2:4 

Dona [3] - 14:15,21:2, 

22:16 

done [4] - 16:15, 19:3, 

20:10, 22:21 

DOT[i] - 14:3 

down [z] - 18:19, 21:6 

Drive 121 - 2:6, 2:12 

due [I] - 14:21 

duly [I] - 9:9 

during [z] - 5:23, 20:3 

During [I] - 1l:ll 

dust 151 - 21 124, 2215, 

22:19, 24:20 

economic[q - 51, 

52, 5:5 

educational [I] - 10:9 

effect [3] - 13:12. 

15:14, 19:14 

effects [I] - 5:3 

Efficient (21 - 3:13, 

13:5 

EIB 151 - 1:2. 5:25. 6:2, 

6:3, 26:18 

EIB's [I] - 16:12 

eight 131 - 5:25, 159, 

1518 

eight-hour 121 - 15:9, 

15:18 

either111 - 515 

El 111 - 24:l 

elicited [I] - 6:14 

eliminating [I] - 5:5 

emission 111 - 19:13 

emissions 141 - 12:19, 

14:22, 23:23, 23:25 

employee [I] - 28:ll 

end [3] - 6:21, 9:6, 

20:12 

English 131 - 3:16, 

16:16, 17:l 

enhance [i] - 22:14 

entities [I] - 17:15 

Environment [el - 2:9, 

6:9, 8:11, 9:17, 

10:24, 15:22, 26:16, 

26:19 

environment [I] - 4:25 

ENVIRONMENTAL p] 

I 

INSEND COURT REPORTERS 

505-243-501 8 

environmental 141 - 53, 56, 105, 10:12 

Environmental 191 - 1:18,2:2,2:5, 4:17, 

7:23, 8:10, 9:18, 

10:7. 17:18 

EPAp] - 11:14, 11:24, 

12:25, 14:17, 1512, 

17:20, 19:7,21:11, 

21 :19 

EPA's [2] - 13:10, 19:3 

Equity [z] - 3:14, 135 

errors [I] - 16:5 

especially [3] - 59, 

21 :24, 24:8 

essential [I] - 7:9 

evaluating [I] - 1523 

event [I] - 21:17 

events 131 - 14:22, , 

21:23, 22:2 

Events 121 - 21 :20, 

22:17 

evidence [I] - 6:17 

examination 161 - 7:14, 7:18, 7:19, 

7:21, 18:7, 25:4 

Examination [z] - 3:3, 

3:4 

EXAMlNATlON [2] - 9:11, 18:14 

examine 121 - 515, 

7:24 

exceeded[i] - 12:12 

Exhibit [a] - 10:16, 

11:4, 11:18, 13:9, 

13:11, 16:21, 16:24, 

17:7 

EXHIBIT [I] - 3:8 

Exhibits [z] - 18:1, 

185 

exhibits [z] - 4:15, 

17:6 

exist [I] - 14:ll 

existing [I] - 12:4 

Expiration [I] - 28:19 

explain 141 - 12:10, 

16:10, 19:21,26:5 

explaining [I] - 13:19 

explains [I] - 19:2 

fact [I] - 5:9 

facts [3] - 4:21, 6:14, 

7:9 

fair111 - 6:12 

familiar [I] - 10:15 

far [I] - 22:15 
El8 HEARING, 4/6/09 

favor 111 - 27:7 

Fe[q - 1:19, 1:20, 2:7, 

2:12 

federal pq - 8:24, 

11:13, 121, 12124, 

12:25, 15:24, 17:20 

Federal 121 - 3:12, 

16:22 

few [I] - 22:24 

filed - 8:16, 8:20 

final [i] - 28:13 

firm 111 - 10:5 

first 131 - 9:4, 9:9, 

18:17 

Flexible 121 - 3:13, 

13:5 

follow 111 - 20:6 

~OIIOWS [z] - 7~11. 9:lO 

foregoing [z] - 28:5, 

28:8 

form [I] - 14:6 

format 121 - 11 :6, 11 :9 

fortunate [I] - 24:19 

Francis (2) - 2:6. 2:12 

fully [I] - 6:14 

funding 111 - 20:13 

FURTHER[i] - 28:lO 

future (11 - 15:6 

GAIL - 312, 918 

Gail [s] - 3:9, 3:10, 

8:22, 9:4, 9:15 

GAY 111 - 2:4 

General [z] - 2:11, 

2:11 

general 121 - 13:12, 

16:14 

generating [I] - 23123 

government 121 - 17:14 

grace (11 - 19:21 

grant111 -ll:13 

GRANTHAM [el - 

2:lO. 7:2, 8:5, 8:8. 

9:12. 17:23, 25:6. 

25:14 

Grantham (51 - 313, 

8:9,25:5. 25:13. 

25:25 

great [I] - 24:20 

guess li] - 18:9 

half [I] - 13:l 

HAROLD [I] - 2:3 

Harold [I] - 2:6 

health [I] - 4:24 

heard [z] - 6:15, 25~23 

hearing 1271 - 1:17. 

4:1, 4:3,4:4, 4:14, 

4:22, 5:16, 5:20, 

5:23, 5:24, 6:4, 6:10, 

6:12, 6:18, 6:20, 

6:22, 7:5, 7:10, 7:11, 

8:17, 8:18, 17:3, 

25:10,25:23, 26:8. 

28:5 

Hearing 191 - 2:3, 3:16, 

3:17, 5:18, 7:2, 8:5, 

17:23, 20:22, 25:14 

hearings [I] - 24:19 

help 121 - 12:8, 25:2 

HEREBY (11 - 2814 

Herrera [z] - 20:23, 

26:24 

HERRERA (31 - 2:4, 

20:24, 26:23 

high [4] - 14:22, 

21:14, 21:22, 22:l 

highway [2] - 10:8, 

23:l 

hinder [I] - 12:9 

hits [I] - 23:6 

hold [I] - 24:19 

honestly 111- 22:21 

hour 141 - 1:20, 15:9, 

15: 18, 23:20 

housing 111 - 2224 

huge 111 - 23:5 

identical [i] - 6:24 

identified [i] - 5:24 

identify [I] - 5:21 

ignorance (11 - 19:21 

impartial [I] - 6:13 

Implementation 141 - 8:13, 11:2, 12:7, 

23:21 

implementation 13) - 9:21, 17:20, 19:4 

IMPLEMENTATION 

[i] - 115 

important [i] - 12:18 

impossible [I] - 24:8 

IMPROVEMENTp] - 1 :l 

Improvement 161 - 1:18. 2:2. 2:5, 4:17, 

7:23, 17:18 

IN [I] - 1 :4 

indepth [i] - 22:21 

include 121 - 13:15, 

21:12 

included 141 - 8:21. 

11:7, 1319, 13:ll 

including 131 - 4:22, 

4:25, 24:22 

individual [z] - 7:25, 

8:l 

industry[il- 23:16 

information [I] - 4:13 

initiation [I] - 9:22 

Injury[i] - 4:23 

instead [i] - 19:4 

intends 111 - 5:22 

Intent [q - 8:20, 13:9 

interest [z] - 4:25, 

28:12 

interested [2] - 4:9. 

5:12 

interesting [I] - 24:14 

Interference [I] - 4:23 

involved [I] - 28:ll 

issue p] - 16:4, 17:21. 

23:18 

issued [I] - 17:19 

lT~i] - 1:16 

item [i] - 18:19 

January[z] - 3:12, 

8:25 

Juan 111 - 15:17 

Juarez [I] - 24:l 

jurisdiction [I] - 14:14 

KATHI (I] - 2:3 

Kathi [z] - 4:4, 6:3 

KOPAN 111 - 28:18 

land 121 - 22: 13, 22:25 

language 131 - 9:23, 

13:16, 26:5 

lapse 141 - 19:21, 20:9, 

20:11,20:20 

large 121 - 21:6,21:24 

last [z] - 12:25, 18:19 

lead [i] - 12:13 

least [I] - 22:lO 

leave [i] - 4:2 

Legacy [il - 334 

legislative 111 - 11:9 

lessill - 14:18 

levels [it - 21:14 

License 111 - 28:19 

KATHY TOWNSEND COURT F 

505-243-50 1 8 

life [I] - 4:24 

light [i] - 5:9 

likely [I] - 22:9 

limited [I] - 4:22 

located 111 - 14:15 

logical [i] - 26:6 

look 121 - 1911, 24:ll 

LU 131 - 13:6, 13~8, 

13:ll 

ma'am 121 - 19:17, 

25:6 

machine [I] - 28:6 

Madam [el - 5:18,7:2, 

8:5, 10:23, 17:23, 

18:16. 20:21, 25:14 

main [z] - 1314, 20:12 

majority [I] - 4:13 

man [i] - 22:19 

man-made [i] - 22:19 

management [i] - 22:14 

manner [il - 6:13 

March 131 - 8:20, 

15:12, 15:15 

marked [4] - 10:16, 

11:17, 16:21, 17:7 

MARKEDIADMITTED 

111 - 3:7 

master's[i] - 1013 

material 121 - 11 :9, 

11:lO 

MATTER [I] - 1 :4 

matterlia] - l:17, 

5:25, 6:5, 7:1, 8:11, 

12:14, 12:15, 28:12, 

28:13 

mean [I] - 11 :22 

means [i] - 20:9 

meeting 141 - 6:6, 

8:18, 8:19, 27:ll 

member [r] - 6:4 

members 141 - 7:20. 

7:22, 7:23, 27:l 

Members [z] - 10:23, 

17:24 

MEXICO [ZI - 17, 28:l 

Mexico [a] - 1 :18, 

1:20, 2:9, 3:17, 8:10, 

9:17, 10:24, 10:25, 

11 :4, 13:21, 13:23, 

14:3, 14:9, 14:12. 

14:14, 1436, 15:3, 

15:7, 16:14, 16123, 

17:11, 24:5, 24:7, 

26: 15 

Mexico's (I] - 11:13 

name [4] - 6:3, 8:9, 

9:13, 9:15 

national [i] - 21:22 

National [4] - 10:6, 

15:9, 15:18, 19:7 

Natural (21 - 21 :20, 

22:17 

necessary 131 - 6: 19, 

12:21, 13:2 

necessity [i] - 5:4 

need 141 - 6:23, 24:5. 

26:5, 27:2 

new 151 - 15:8. 15:18, 

15:24, 19:12, 19:13 

NEW 121 - 1~1, 28:l 

New 1261 - 1:18, 1:20, 

2:9, 3:17, 8:10, 9:17, 

10:24, 10:25, 1 1:4, 

11:9, 11:13, 13121, 

13:23, 14:3, 14:9, 

14:11, 14:14, 14:16, 

15:3. 15:7. 16:14. 

16:23, 17:11, 24:5, 

24:7. 26:15 

newspaper 121 - 

16:14, 16:24 

newspapers' 111 - 16:15 

next [21- 26:1,27:11 

nitrogen[i] - 1213 

NM [3] - 217, 2~12, 

28:18 

NMAC[6] - 1:4, 3:11, 

_ 

microns 131 - 12:14, 

12:15. 14:18 

might [il - 17:22 

million [i] - 15:lO 

ministerial [I] - 16:5 

miss [z] - 20:7, 20:8 

mobile 151 - 12:19, 

14:22, 14:24, 2219, 

23:16 

modification [I] - 26:5 1 modify [I] - 26:4 

7 monitoring [il - 1520 

morning [2j - 8:8, 9:13 

most [i] - 22:9 

Most (11 - 13:2 

motion 181 - 26:8, 

26:9, 26:12, 26:15, 

26:19, 26:22,27:5, 

27:8 

motor lt] - 19:13 

Motor [I] - 24:9 

move [I] - 17:25 

, must [ti - 12:6 
EIB HEARING, 4/6/09 

4:2, 6:1, 11:5, 26:17 

NMED [lo] - 3:8, 

10:16, 11:17, 13~9, 

13:11, 15:22, 16:21, 

17:7, 18:1, 185 

NMSA[i] -4:18 

nonattainment 1311 - 11:25, 12:4, 12:7, 

12:10, 12:11, 12:17, 

14:11, 14:15, 14:17, 

14:20, 14:21, 15:1, 

15:5, 15:12, 1515, 

15:18, 21:2, 21:5, 

21:8, 21:10, 21:19, 

21 :25, 22:3, 225, 

22:9, 22:10, 23:15. 

23: 19. 23:24. 24:2, 

24:8 

noncompliance [I] - 11 :25 

none [i] - 5:24 

note [zj - 4:16.7:18 

notes [i] - 28:6 

nothing [i] - 24:9 

Notice 141 - 3:12, 3:17, 

8:20, 13:9 

notice 1101 - 16:3, 

16:12, 16:13, 16:15, 

16:20. 16:22. 16:23, 

16:24, 17:3, 17:19 

Notices [I] - 3:16 

notices 141 - 4:9, 

16:18, 17:7 

nullify [I] - 26:3 

oath [2] - 7:12, 9:9 

occur [I] - 7:21 

October [I] - 8:18 

OF [6] - 1 :I, 1 :4, 1 :5, 

1:12, 28:1, 28:3 

Office 111 - 2:11 

officer 141 - 4:4, 521, 

6:4. 6:18 

Officer [7] - 2:3. 5:18, 

7:2, 8:5, 17:24, 

20:22, 2514 

officially [I] - 15:ll 

Old [I] - 1:19 

one [a] - 11 :25, 12:12, 

14:8, 14:13. 15:14. 

20:12, 23:20 

One [I] - 15:7 

one-hour [I] - 23:20 

one-on-one [I] - 14:8 

opening 131 - 7:13, 

8:4, 8:6 

opportunity [2[ - 5:13. 

6:15 

opposed [z] - 24:25, 

27:7 

optional [I] - 25:19 

oral w - 5:10. 9:2, 

2517 

orally [I] - 5:15 

ordered [i] - 18:2 

orderly [I] - 6:20 

orders [I] - 6:19 

original [I] - 26:6 

otherwise (21 - 5:6, 

25x16 

outgrowth [I] - 26:6 

outreach [I] - 9:24 

overall [I] - 13:12 

overgrazing 131 - 22:13, 22:25, 23:12 

overlap [I] - 21 :5 

oxides p] - 12:13, 

18:23. 195 

ozone 161 - 12:13, 

139. 15:24. 21 :4, 

21 :14. 24:7 

- . - -- . - 

P 

P.L [I] - 3:14 

page 121 - 18:17, 18:20 

PAGE [I] - 3:l 

pagers [I] - 6:22 

panel 121 - 7:20, 7:22 

panels [z] - 7:25, 8:2 

Park [lo] - 15:7, 21 :4, 

21:10, 21:13, 23:17, 

23:19, 23:22, 24:12. 

24:19, 24:21 

Part[6]- 11:12, 12:21, 

12:23, 14:19, 154 

part[S]-5~11, 11:13. 

20:7,22:10, 25:lO 

particular 121 - 12:22, 

13:19 

particulate 131 - 12:14, 

12:15 

parties [J] - 4:9, 513, 

28:ll 

parts [I] - 15: 10 

party 131 - 4:10, 7:12, 

8:3 

Paso [I] - 24:l 

per [i] - 15:lO 

period [5] - 16:8, 

19:22, 20:2, 20:3, 

20:4 

personal [z] - 28:7, 

28:12 

persons [z] - 6:15, 

6:21 

PETERS [6] - 2:5, 

21:1, 21:4,21:16, 

22~12, 23:8 

Peters [I] - 20:25 

petition (21 - 6:8, 8:15 

phones [I] - 6:22 

place [q - 17:21, 

18:23. 21 :20, 22:2, 

22:8 

Plan 141 - 8:13, 11:2, 

22:17, 23:21 

PLAN [I] - 1 :5 

plan 121 - 17:20, 20:8 

planning (51 - 10:13, 

13:15, 17:13, 20:10, 

22: 1 

Plans 141 - 6:2, 8:13, 

11:2, 12:8 

plans 161 - 9:22, 12:6, 

20:5, 20:17, 26:17 

PLANS [I] - 1 :5 

plant [I] - 4:24 

plays [I] - 22:lO 

PM10 (4 - 14:17, 

14:18, 14:21. 21:5, 

21:8, 22:15, 23:12 

PM2.5 [I] - 19:3 

point [I] - 259 

Policy [2] - 10:7, 21:21 

pollutant [I] - 19:6 

pollutants [z] - 12:l. 

12:12 

pollution [2] - 12:5. 

12:20 

poor [I] - 22:13 

portions [I] - 13:8 

position [2] - 10:1, 

10:4 

possibly 111 - 24:ll 

potential [I] - 22:19 

practicability [I] - 5:4 

prepare [I] - 11:20 

present [z] - 4:9, 

10:24 

presentations [I] - 

14:9 

presented (31 - 4:13, 

4:15,4:21 

presently [I] - 14:13 

preserve [I] - 6:19 

previously [I] - 6:25 

primacy [I] - 17:22 

primary [I] - 12:20 

problem [I] - 12:5 

problematic [I] - 

22:15 

problems [I] - 23:13 

Procedure [I] - 6: 17 

procedures [i] - 6:11 

Proceedings [I] - 27:15 

proceedings [I] - 28:9 

PROCEEDINGS 111 - 

1:12 

process [7] - 5:23, 

6:20, 7:11, 12:8, 

17:13, 22:1, 26:2 

Programs 131 - 6:2, 

8:13, 11.2 

programs [I] - 26:18 

PROGRAMS [I] - 1:5 

progress [I] - 13:16 

Projects 131 - 6:2, 

834, 11:3 

PROJECTS [I] - 1 :5 

projects 161 - 9:22, 

10:8, 12:3, 12:6, 

23:2, 26:18 

promulgated 131 - 8:25, 11:24, 13:6 

property [I] - 4:24 

proposal 131 - 26:4. 

26:6, 26:7 

proposed 1211 - 4:2, 

5:13, 5:14, 5:25, 

8:11, 10125, 11 15, 

11 :6, 11:8, 12:23, 

13:13, 14:19, 14:23, 

154, 16:8, 17:17, 

26:3, 26:8, 26:16, 

26:20, 27:6 

Proposed [I] - 3:11 

PROPOSED 111 - 1 :4 

protect [I] - 6:20 

Protection 131 - 8:10, 

9:18. 15:22 

provide [4] - 6:14. 7:8. 

9:1, 16:7 

provisions [I] - 4:17 

Public[i] - 16:12 

public 1101 - 4:22, 

4:25, 522. 7:16, 

9:23, 16:7, 16:17, 

16:20, 259, 25:ll 

published [3] - 16:13, 

16:16, 17:4 

purpose (21 - 10:22. 

122 

put [Z] - 17:20, 21 120 

Quality [el - 9:19, 

9:20, 13:24, 13:25, 

15:9, 15:19, 16:7, 

19:7 

quality [I] - 17:13 

questioned [I] - 9:10 

questioning [I] - 7:18 

questions 191 - 7:20, 

7:24, 9:1, 17:24, 

18:10, 18:12. 24:17, 

25:3, 25:7 

R) 111 - 6:2 

rather [I] - 12:8 

read [I] - 4:6 

ready [5] - 4:1, 25:22, 

26:8, 26:9, 26:ll 

really [2] - 23:10, 24:7 

reason [I] - 22:4 

reasonable [z] - 513, 

6:14 

reasonableness [I] - 

5:5 

Reasons [I] - 27:ll I rebuttal [4] - 7:15, 

18:8, 25:4, 25:6 

receive [I] - 16:17 

recitation (I] - 7:8 

recommended [I] - 

21:ll 

record [el - 4:6, 6:16, 

7:17, 8:8, 9:14, 16:2, 

2524, 28:8 

recorded [I] - 28:5 

redesignate [I] - 22:6 

reducing [I] - 5:5 

referpi- ll:ll, 

11:15. 15:16 

reference [z] - 14:25, 

19:8 

refers [I] - 18:22 

reflects [I] - 1 1 :4 

regarding [2] - 7:1, 

9:2 

regardless [I] - 24:l 

region [I] - 23:14 

regional [2] - 10: 1 3, 

235 

Register [s] - 3:12, 

3:17, 1635, 16:22, 

16:23 

regularly [I] - 8:17 

regulated [I] - 5:2 

regulation (51 - 4:19, 

5:14, 11:12, 14:1, 

14:2 

regulations 121 - 16:13, 19:14 

regulatory [3[ - 8:15, 

9:23. 26:3 

reject [I] - 26:4 

relating [I] - 7:9 

relative [I] - 28:lO 

I I I 

KATHY TOWNSEND COURT REPORTERS 

505-243-501 8 

EIB HEARING, 4/6/09 

wishes [I] - 25:ll 

witness [6] - 7:3. 7:25, 

8:2. 9:5, 17:25. 18:8 

witness' [I] - 25:17 

witnesses [a] - 5:16, 

7:14. 7:15, 7:16, 

7:19, 7:21, 7:25, 8:2 ' 

writing [?.I - 5:15, 

25:16 

written [13] - 4:14, 

6:24, 7:4, 7:7, 8:21, 

912, 1117, 11:15, 

13:18, 1511, 16.4, 

18:18, 25:17 

Written [I] - 3:10 

year-and-a-half [I] - 13:l 

years 131 - 10:2, 20:15. 

24:19 

yourself [I] - 11 :20 

I 

KATHY TOWNSEND COURT REPORTERS 

505-243-501 8