### Bill 

### Richardson Governor 

# State 

# of New Mexico ofice 

# ofthe Cjwernor
November 2,2006

Mayor Richard Greene Rxgional Administrator US. Environmental Protection Agency, Region 6 

### 1445 Ross Avenue Dallas, Texas 75202-2733 Dear Mayor Greene: 

# = 'Y < 

# - W 

# g cn On behalf of the New Mexico Environment Department, 

### I am pleased to submifio the Environmental Protection Agency the enclosed revisions to the New Mexico State Implementation Plan (SIP). This revision includes amendments to New Mexico Administrative Code (NMAC)regulations 20.2.3 NMAC
-

### Ambient Air Quality Standards; 

### 20.2.70 NMAC
- 

### Operating Permits; 

### 20.2.72 NMAC
- 

### Construction Permits; 

### and 20.2.99 NMAC -- 

### Conformity to the State Implenzerltution Plan of Transportation Plans, Programs and Projects. 

### The hearing records for these SIP revisions are attached, which include the filed regulations, transcripts, exhibits, public notices, affidavits ofpublication, notices of intent to testify and public comments.
Should you have any questions concerning this SIP submittal, please contact Richard Goodyear, Acting Air Quality Bureau Chief, at 505-827- 1494. Sincerely,

Bill Richardson Governor of New Mexico
BRlmw Cc: David Neleigh, EPA Region 6 Peggy Wade, EPA Region 

### 6 Tom Diggs, EPA Region 

### 6 --



# ............... ......... Ron Curry, NMED, Cabinet Secretary 60E 

### J.. .6RC..



# . .. .... Richard Goodyear, WED,Air Quality Bureau 6

### PD.. 

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State Capitol Room 

### 400 Santa Fe, 

### New Mexico 87501 505-476-2200 www.governor.state.nrn.us

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09/15/05 7 Date Sianed

### This is an amendmentto 20.2.99 NMAC, Sections 2,7, 109, 112-118, 120-123, 125, 128-129, 135-140,and 143- 154,effective 10115/05.
20.2.99.2 SCOPE. Agencies affected by this part are: federal transportation agencies (the federalhighway 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 ofthe environmental improvementboard (see also 20.2.99.6 NMAC).A. The provisions of this part shall apply i11all non-attainmentand maintenance areas for transportation-related criteria pollutants for which the area is designated non-attainmentorhas a maintenance plan. 

### B. The provisions of this part applywith respect to emissions ofthe 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 particleswith an aerodynamic diameter less than or equalto a nominal 2.5 micrometers (PM2.5). C. The provisions ofthis part apply with respect to emissions of the following precursor pollutants in nonattainment or maintenanceareas: (1) volatile organic compounds and nitrogen oxides in ozone areas; (2) nitrogen oxides in nitrogen dioxide areas; and (3) 

### volatile organic compoundsandlor,nitrogen oxides, [~IxUWN]

### in PMlO areas if: (a) the EPA region 6 administrator or the departmenthas made a finding (including a finding aspart ofa SIP or a submittedimplementation plan revision) that transportation-related emissions of one or both of 

## theseprecursor emissions within the nonattainment-area are a significant contributorto the PMlO nonattainment problem and has so notified the MPO (or the

### -1 NMDOT in the absence of an MPO) and US DOT; or (b) 

### the applicable SIP (or implementation plan submission) establishes [a] an approved (or adequate)budget for such emissionsas part ofthe reasonable furtherprogress, attainment or maintenance strategy. 

### D. The provisions of this part apply to PM2.5 nonattainment and maintenance areas with respect to PM2.5 fromre-entrained road dust if the EPA regional administrator or the departmenthas made finding that reentrained road dust emissionswithin 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 implementationplan submission) includesre-entrained road dust in the approved (or adequate )

### budget as

### part ofthe reasonable further progress, attainment or maintenance strategy. Re-entrainedroad dust emissions are produced by travel andpaved and unpaved roads (including emissionsfrom anti-skid and deicingmaterial(s)). 

### [B]E. The provisions of this part apply to maintenance areas for 20 years from the date US EPA approves the department's request under Section 107(d)ofthe CAA for redesignation to attainment, unless the applicableimplementation plan specifiesthat the provisions ofthis part shall apply for more than 20 years. [12/14/94; 11/23/98;20.2.99.2NMAC 

## - Rn,20 NMAC 2.99.101 10/31/02;A, 10/15/05]
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 ofpriority. A. "1-hour ozone NAAQS" means the 1-hourozone national ambient air qualitv standard codified at 40 CFR 50.9. 

### B. "&hour ozone NAAOS" means the 8-hour ozone national ambient air quality standard codified at 40 CFR 50.10. [A]c. "Applicable implementation plan" is defined in Section 302(q) ofthe CAA and means the portion (or portions) ofthe implementationplan, or most recent revision thereof, which has been approved under Section 110 (ofthe CAA), promulgated under Section 110(c),orpromulgated or approved pursuanttoregulations promulgated under Section 301(d) and which implements the relevant requirements ofthe CAA. [BID. "CAA" meansthe Clean Air Act, as amended, 42 U.S.C. 7401, et seq. 

## [€!I& "Cause or contribute to a new violation" for a project means: (1) to cause or contributeto a new violation of a standard 

### in the area substantiallyaffected by the project or over a region which would otherwise not be in 

### violation of the standard during the future period in question,ifthe project were not implemented, or (2) to contribute to a new violation in a manner that would increase the frequencyor severityof a new violation of a standard in such area. [B]E. "CFR" means the code of federal regulations.

20.2.99NMAC

### [E]G. "Clean data" means air quality monitoring data determined by US EPA to meet the e national ambient air quality standard. 

## [FIB. "Conformity analyses" means regional or localized "hot-spot" computer modeling assessment or any other analyseswhich serve asthe basis for the conformity determination. 

## [&]I. "Conformity determination" means the demonstration of consistency with motor vehicle emissions budgets for each pollutant and precursor identifiedin the applicable SIP. The conformity determinationis the affirmative written documentation declaring conformity with the applicable SIP which is submitted to FHWA and FTA for approval with EPA consultation. An affurnative conformity determination means conformity to the plans purpose of eliminatingor reducingthe 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 existingviolation of any standard in any area; or (3) delay timely attainmentof any standard or any required interim emission reductions or other milestones in any area. 

### [HIJ. "Consultation" means that oneparty confers with another identifiedparty, provides or makes available all relevant informationto that party, and, prior to taking any action, considers the views ofthat party and (except with respect to those actions for which only notificationis 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 ofany decision or action. Specific proceduresand processes are described in 20.2.99.1 16 through 20.2.99.124 NMAC. [4]& "Control strategy implementation plan revision" is the 

# [v] implementation 

### plan which contains specific strategiesfor controllingthe emissions of and reducing ambient levels ofpollutants in orderto satisfy CAA requirements for demonstrationsofreasonable furtherprogress and attainment (including implementation plan revisions submitted to satisfvCAA Sections 172(c), 182(b)(l), 182(c)(2)(A), 182(c)(2)(B), 187(a)(7), 189(a)(l)(B), 

## [dl 189(b)(l)(A) and 189(d); and Sections 192(a) and 192(b), for nitrogen dioxide& anv other applicableCAA provisions requiring a demonstration of reasonable further proeress or attainment). 

### L. "De~artment" means the New Mexico environment department. 

## [JIM. "Design concept" means the type of facility identified by the project, e.g., freeway, expressway, arterial highway, grade separatedhighway, reservedright-of-way rail transit, mixed traffic rail transit, exclusive busway, etc. 

## [KIN. "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 ofproject, signalization, access control including approximate number and location of interchanges, preferential treatment for high-occupancy vehicles, etc. 0. "Donut areasff are aeoe~aphic areas outside a metropolitan planning area boundarv. but insidethe boundarv of a nonattainment or maintenance area that contains any part of a metropolitan area(s). These areas are not isolated rural nonattainrnent and maintenance areas. 

## [LIE. "FHWA" means the federal highway administration ofUS DOT. 

### [MIQ. "FHWAIFTA project", for the purpose ofthis 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 ofthe project, such as connection to an interstatehighway or deviation from applicable design standards on the interstate system. 

## PIE. "Forecast period" with respect to a transportationplan is the period covered by the transportation plan pursuant to 23 CFR part 450. 

## [Q]S. "FTA" means the federal transit administration of US DOT. 

## [PIT. "Highway project" is an undertaking to implement or modify a highway facility or highwayrelated program. Such an undertaking consists ofall required phases necessary for implementation. For analytical purposes, it shallbe defined sufficientlyto: (1) connect logicaltermini and be of sufficientlength to address environmental matters on a broad scope; (2) have independent utility or significance,i.e., be usable and be a reasonable expenditure even ifno additional transportation improvements in the area aremade; and (3) not restrict consideration of alternativesfor other reasonably foreseeable transportation improvements. 

## [Qlu. "Horizon year" is a year for which the transportationplan describes the envisioned transportation

20.2.99NMAC 2

### system in accordance with 20.2.99.125NMAC. [RIY. "Hot-spot analysis" is an estimation of likely future localized CO and PM10 pollutant concentrations and a comparisonofthose concentrations to the national ambient air quality standards. Hot-spot analysis assesses impacts on a scale smallerthan the entirenonattainment or maintenance area, including, for example, congestedroadway intersectionsand highways or transit terminals,and uses an air quality dispersion model to determine the effects ofemissions on air quality. 

### [Sly. "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 greaterconcentration than previously existed andlor would otherwise exist during the future period in question, ifthe project were not implemented. 

### X. "Isolated rural nonattainment and maintenance areas" are areas that do not contain or arenot part of anv metropolitan planning area as designatedunder the transvortation planning regulations. Isolated rural areasdonot have federally reauired metropolitan transportation plans or TIPSand do not have proiects that are part ofthe emissions in such areas are instead included in statewidetransvortation improvement programs. These arenot donutareas. [T]Y. "Lapse" means that the conformity determination for a transportationplan or TIPhas expired, and thus there is no currently conforming transportationplan and TIP. Z. 

### "~imited-maintenance plan" is a maintenanceplan that EPA has determinedmeets EPA's limited maintenanceplan policy criteria for a givenNAAQS and pollutant. To aualifv for a limitedmaintenance plan. for example. an area must have a design value that is significantly below a given NAAOS, and it must be reasonable to expect that a NAAOS violation will not result fiom any level of future motor vehicle emissions growth. [U]& "Maintenance area" means any geographic region ofthe United States previouslydesignated nonattainment pursuant to the CAA Amendments of 1990 and subsequentlyredesignatedto attainment subjecttothe requirementto develop a maintenanceplan under Section 175A ofthe CAA, as amended. [VIM. "Maintenance plan" means an implementationplan under Section 175Aofthe CAA, 

### as amended. [W]g. "Metropolitan planning organization @lPO)" is that organization designated as being responsible, together with the state, for conductingthe continuing, cooperative, and comprehensiveplanning process under 23 U.S.C. 134and 49 U.S.C. 5303. It is the forum for cooperativetransportationdecision-making. In the absence of an MPO, the 

## -1 NMDOT shall be responsible for the transportation planningprocesses assignedto MPOs under this part [XI@. "Milestone" has the meaning given in Sections 182(g)(l) and 189(c) [ei%&XA] 

## for serious and above ozone nonattainment areas and PMlO nonattainment areas, resuectivelv. For all other nonattainment areas, [A] g 

### milestone consists of an emissions level and the date on which [-I level is to be achieved as requiredbv the applicableCAA provision for reasonable further progresstowards attainment. [VIM. "Motor vehicle emissions budget" is that portion ofthe total allowable emissionsdefined in the submitted or approved control strategyimplementationplan revision or maintenance plan for a certain date for the purpose of meeting reasonable hrther progress milestones or demonstrating attainment or maintenance ofthe NAAQS, for any criteria pollutant or its precursors, allocated by the SIP to highway and transit vehicle use and emissions. [ZIAJ. "National ambient air quality standards (NAAQS)" are those standards established pursuantto Section 109 of the CAA. 

### [+WAG- "NEPA" means the National EnvironmentalPolicyAct of 1969,as amended,42 U.S.C. 432 1,et seq. [MIAH. "NEPA process completion", for the purposes ofthis part, with respectto FHWA or FTA, means the point at which there is a specificactionto make a determination that a project is categorically excluded,to make a fmding ofno significantimpact, or to issue arecord ofdecision on a final environmental impact statementunder NEPA. 

### [MJAI. "[NMWTEl] 

### NMDOT" means the New Mexico 

### [',-'PI department oftransportation or its successor agencyor authority, as representedby the department secretary or his or her designee.

# [AM. "Nonattainment area" means any geographic region ofthe United States which has been designated as nonattainment under Section 107ofthe CAA for any pollutant for which a national ambient air quality standard exists. 

## [a]&. "Project" means a highway project or transitproject.

20.2.99 NMAC

### [M]&."Protective finding" means a determination by US EPA that a submitted control strategy implementation plan revision contains adopted controlmeasures or written commitmentsto adopt enforceable control measuresthat fully satisfy the emissionsreductions requirements relevant to the statutoryprovision for which the implementation plan revision was submitted, such as reasonable firther progress or attainment. 

### [MIAM. "Recipientoffunds designated under title 23

### U.S.C. or the federal transit laws" means any agency at any level of state, county, city, or regional govenunent that routinely receives title 23 U.S.C. or federal transit law fundsto constructFHWAETA projects, operateFHWAETA projects or equipment,purchase equipment, or undertake other services or operationsvia contractsor agreements. This definition does not include private landowners or developers, or contractors or entities that are only paid for services or products createdby their own employees. 

### [MIAN. "Regionally significantproject" means a transportation project (other than an exempt project) that is on a facility which serves regional transportation needs (such as accessto and fiom the area outside ofthe region, major activity centers in the region,major planned developments such as new retail malls, sports complexes,etc., or transportation terminals, aswell as most terminals themselves) and would normally be included in the modeling of a metropolitan area's transportation network, includingat a minimum: (1) all principal arterial highways; and 

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

### [MI&. "Safety margin"meansthe amountby which the total projected emissions fiom all sources of a givenpollutant are less than the total emissions that would satisfy the applicable requirement for reasonable further progress, attainment, or maintenance. 

### [&I&. "Standard"means a national ambient air quality standard. 

### [fwi@. "State implementation plan (SIP)"means an applicable implementationplan andthe applicable portion (or portions) ofthe New Mexico state implementationplan, or most recent revision thereof, which has been approved under Section 110, or promulgated under Section 

### 1 10(c),or promulgated or approved pursuant to regulations promulgated under Section301 (d) ofthe CAA and which implements the relevant requirements ofthe CAA (see the definition for "applicable implementationplan"). 

## [+WAR "Title23

### U.S.C." means title 23 ofthe United States Code. 

### [MIAS. "Transit" is mass transportationby bus, rail, or other conveyancewhich provides general or special serviceto the public on a regular and continuingbasis. It does not include school buses or charter or sightseeing services. 

### [+QJ]AT. "Transit project" is an undertaking to implement or modify a transit facility or transitrelated program; purchase transit vehicles or equipment; or provide fmancial assistance for transit operations. It does not include actions that are solely within thejurisdiction of local transit agencies, such as changes in routes, schedules,or fares. It may consist of severalphases. For analytical purposes, it shall be defined inclusivelyenough to: (1) connect logical termini and be of sufficientlength to address environmentalmatters on a broad scope; 

### (2) have independent utility or independent significance,i.e., be a reasonable expenditure even if no additionaltransportation improvements in the area are made; and (3) not restrict consideration of alternatives for other reasonably foreseeable transportation improvements. 

## L@]LW. "Transportation control measure (TCM)" is any measure that is specifically identified and committed to in the SIP that is either one ofthe types listed in Section 108 of the CAA, or any other measure for the purpose of reducing emissions or concentrations of air pollutants fiom transportation sourcesby reducing vehicle use or changing traffic flow or congestion conditions. Notwithstanding the above, vehicle technology-based,fuelbased, and maintenance-based measures which control the emissions fiom vehicles under fixed traffic conditions are not TCMs for the purposes of this part. 

## [WAY. "Transportationimprovement program (TIP)" means a staged, multi-year, intermodal program of transportation projects covering a metropolitan planning area which is consistentwith the metropolitantransportation plan, and developedpursuant to 23 CFR part 450. 

# [fw Ax!!. "Transportationplan" means the official intermodal metropolitan transportationplan that is developed through the metropolitanplanning process for the metropolitan planning area, developed pursuant to 23 CFR part 450. 

### [+=]AX. "Transportationproject" is a highway project or a transit project. AY. 

### "USEPA" means the United States environmental protection agency 

### [MIA& "US DOT" means the United States department of transportation.

### [MlBG- "Written commitment" for the purposes ofthis part means a written commitment that includes a description ofthe action to be taken; a schedulefor the completion ofthe action; a 

### demonstration that funding necessaryto implementthe actionhas been authorized by the appropriating or authorizing body; and an acknowledgmentthat the commitment is an enforceable obligation under the applicableimplementation 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]
20.2.99.109 APPLICABILITY A. 

### Action applicability. (1) Except as provided for in Subsection C of 20.2.99.109 NMAC or SubsectionA of 20.2.99.149 NMAC conformity determinationsare required for: (a) 

### the adoption, acceptance, approval or support oftransportation plans and transportation plan amendmentsdevelopedpursuant to 23 CFRpart 450 or 49 CFR part 613 by an MPO (or [-I NMDOT in the absenceof an MPO) or US DOT; (b) 

### the adoption,acceptance, approval or support of TIPSand TIP amendments developed pursuant to 23 CFRpart 450 or 49 CFR part 613by an MPO (or 

## [-I NMDOT in the absence ofan MPO) orUS DOT; and (c) the approval, funding, or implementation ofFHWAIFTA projects. (2) Conformity determinations are not required under this part for individual projects which are not FHWAtFTA projects. However, 20.2.99.140 NMAC appliesto such projects ifthey areregionally significant. B. 

### Geographicand pollutant applicability are set out in 20.2.99.2 NMAC (Scope). C. 

### Limitations. 

## [L . .

(3: 'ha 

## . .

. . 

## -1 In order to receive anv FHWAIFTA approval or funding actions. includingNEPA avvrovals. for a proiect phase subiect to this subpart, a currently conforming transportationplan and TIPmust be 

### in place at the time of proiect av~roval as described in Subsection A of20.2.99.133 NMAC, except as provided bv SubsectionB 

### of20.2.99.133 NMAC. D. 

### Grace period for new nonattainment areas. For areasor portions of areas which have been continuouslv designated attainment or not designated for anv standard for ozone,CO, PMlO, PM2.5 or NO2 since 1990 and are subsequentlvredesignated to nonattainment or designated nonattainment for anv standardfor anv of these pollutants. the provisions ofthis subpart shall not apvlv with respect to that standard for 10months following the effective data of final designation to nonattainment for each standard for such pollutant. [12/14/94;11/23/98; 20.2.99.109 NMAC 

## -Rn, 20NMAC 2.99.109 10/31/02;A, 10115/05]
20.2.99.112 FREQUENCY OF CONFORMITY DETERMINATIONS

# - TRANSPORTATIONPLANS. A. 

### Each new transportation plan shall be foundto confonn before the transportationplan is approved by the MPO (or 

## [-I NMDOT in the absence of an MPO) and accepted by the US DOT. B. 

### All transportationplan revisions shallbe found to conformbefore the transportationplan revisions are approvedby the MPO (or 

### [th&MSHW] NMDOT in the absence of an MPO) or accepted by the US DOT, unless the revision merely adds or deletes exempt projects listed 

### in 20.2.99.149 NMAC and has been made in accordancewith the notificationprovisions of 20.2.99.122NMAC. The conformity determination shallbe based on the transportation plan and the revision taken as a whole. C. 

### The MPO and US DOT shall determine the conformity ofthe transportation plan (including a new regional emission analysis)no less frequently 

### than every three (3)years. If more than three (3) years elapse afterUS DOT'Sconformitydeterminationwithout the MPO and US DOT determining conformity ofthe transportation plan, the existing conformity determination will lapse.

20.2.99NMAC[12/14/94; 1 1/23/98;20.2.99.112 NMAC 

### - Rn, 20 NMAC 2.99.1 12 10131/02;A, 10115/05]
20.2.99.113 FREQUENCY OFCONFORMITYDETERMINATIONS

## - TRANSPORTATION IMPROVEMENT PROGRAMS. A. A new TIP must be foundto conform before the TIP is approvedby the MPO (or [-I NMDOT in the absence of an MPO) or acceptedby the US DOT. B. A TIP amendment requires a new conformity determination for the entire TIP before the amendment is approvedby the MPO (or [-I NMDOT in the absenceof an MPO) or acceptedby the US DOT, unless the amendmentmerely adds or deletes exempt projects listed in 20.2.99.149NMAC and has been made in accordancewith the notification provisions of 20.2.99.122NMAC. C. The MPO and US DOT shall determine the conformity of the TIP (including a new regional emissions analysis) no less frequently than every three years or else the existing conformity determination will lapse.



### . 

## . -1 [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]
20.2.99.114 FREQUENCY OFCONFORMITY DETERMINATIONS

# - PROJECTS. FHWAJFTA projects mustbe found to conform before they are adopted, accepted, approved,or funded. Conformitymust be redetermined for any FHWAIFTAproject [-



### . 

## . s] if one of the following occurs: (A) a significant change in the proiect's design concept and scope; /B) three (3) years elapse since the most recent maior step to advance the proiect including (1) NEPA process completion; (2) start of final design; /3) acquisitionof a significantportion ofthe right-of-way; and (4) construction (including federal approval ofplans. specifications and estimates); or {C) initiation of a sup~lemental environmentaldocument for air aualitv purposes. [12/14/94; 11/23/98; 20.2.99.114NMAC 

## - Rn, 20 NMAC 2.99.114;A, 10/15/05]
20.2.99.115 FREQUENCY OFCONFORMITYDETERMINATIONS

## - TRIGGERSFOR TRANSPORTATION PLAN AND TIP CONFORMITYDETERMINATIONS[:], Conformityof existing transportation plans and TIPSshall be redeterminedwithin eighteen(18) months of the following, or the existing conformity determinationwill lapse, and no new project-levelconformity determinationsmay be made until conformity ofthe transportationplan and TIP has been determinedby the MPO and US DOT: [A. 

### -r 24, !??%I [B]& the date of the department's initial submissionto US EPA of each control strategy implementation plan or maintenanceplan establishing a motor vehicle emissionsbudget; [€]B. the effective date ofUS EPA approval of a control strategy implementationplan revision or maintenanceplan which establishes or revises a motor vehicle emissionsbudget if that budget has not yet been used in a conformity determinationprior to approval;and TTC CD 

## . . [C. 

## -1 [BIG. the effective date ofUS EPA promulgation of an implementation plan which establishes or revises a motor vehicle emissions budget[-]. [12/14/94; 1 1/23/98;20.2.99.1 15NMAC 

## - Rn, 20 NMAC 2.99.115 10131/02;A, 10/15/05]
20.2.99.1 16 CONSULTATION. A. 20.2.99.1 16NMAC through 20.2.99.124NMAC provide procedures for the interagency (federal, state, and local) consultation process, resolution of conflicts,and public consultation. Public consultation procedures will be developed in accordancewith the requirementsforpublic involvement in 23 CFR part 450. The affected agencies listed in Subsection C of20.2.99.1 16NMAC shall undertake a consultation process with each other prior to the developmentof: 1)conformity determinations, 2) major activities listed in 20.2.9.1 17 NMAC

20.2.99NMAC 6below; 

### 3) specificmajor activitieslisted in 20.2.99.120 NMAC below; and 4) specific routine activities listed in 20.2.99.121 NMAC below. This consultation process shall follow the consultation procedures described in 20.2.99.1 19NMAC below. 

### B. Prior to EPA's approval of this part, any MPO (or [-I NMDOT in the absenceof an MPO) and [-I NMDOT, beforemaking any conformity determinations, shall provide reasonable opportunity for consultationwith the department,the local transportation agency in the county where the nonattainment or maintenancearea is located, the local air qualityagency in the county in which the nonattainment or maintenance area is located,New Mexico FHWA division offices, FTA region 6 off~ces, andEPAregion 6, including consultationon the issues described 

### in 20.2.99.1 17NMAC. This opportunityfor consultation shall be provided prior tothe determination of conformity. C. Affected agencies[+], (1) Agencies which are affectedby this part and which are requiredto participate in the consultation process are: (a) the designated MPO for the nonattainment or maintenance area; (b) the department; (c) NMDOT; (d) the local transportation agency for the county or city in which the nonattainmentor 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 organizationorresource agency within the state responsible under state law for developing, submittingor implementing transportation-relatedprovisions of an implementationplan. (2) Agencies which may be affectedby this part and which are entitledto participate in the interagency consultation process include: (a)

[-I NMDOT district office for the county in which the nonattainment or maintenance area is located; and (b) the city or county governmentin 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 ofcontact for participating organizations are as follows: (a) MPO: executive director or designee; (b) department: secretary or designee; (c) 

## -1 NMDOT: secretaryor designee; (d) 

## -1 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 administratoror designee; (h) FTA region 6: regional administratoror designee; (i) other organizations: as directed in writing. (2) Policy level meetings shall be those meetings to which the following individuals have been given amplenotice thereof: (a) policy level points of contact for all agencies which are required to participate in the conformityprocess; and (b) the policy level points of contact for all agencies and organizations which are entitled to participate andhave submitted a written requesttoparticipate in the conformityprocess. [12/14/94; 11/23/98 ;20.2.99.116NMAC 

### - Rn,20NMAC 2.99.116 10131/02;A, 10/15/05]
20.2.99.117 AGENCY ROLES IN CONSULTATION. Specific roles ofthe agencies participating in the interagency consultation process are listedbelow. Specific responsibilities ofthe agencies participating in the interagency consultation process are listed in 20.2.99.1 18NMAC. For the purposes ofthis 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 ofthe interagency

20.2.99NMAC 7consultation process. A. The department shall be the lead agency forthe development of: (1) applicable control strategy implementation plan revisionsfor the nonattainrnentor maintenance area; (2) the list of TCMs to be submitted as part ofthe SIP; and (3) any amendments or revisionsthereto. B. In the case of areas in which an MPO has been established,the designated MPO forthe nonattainment or maintenance area shall be the lead agency for: (1) the development ofthe unified planningwork program under 23 CFR 450.3 14; (2) development of the transportationplan forthe nonattainrnent or maintenance area; (3) development of the TIP for the nonattainment or maintenance area; (4) any amendments or revisions thereto; (5) any determinations of conformityunder 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 [GI

### L of 20.2.99.128 NMAC; and (7) development of TCMs, in cooperationwith the department. C. In the case of areas 

### in which an MPO has not been established, [-I NMDOT shall be the lead agency for: (1) the development of the transportationplan for the nonattainrnentor maintenance area; (2) development of the TIP (transportationimprovementprogram) for the nonattainment or maintenance area; (3) any amendments or revisions thereto; (4) any determinations of conformityunder this part for which an MPO would be otherwise responsible;(5) choosing conformity tests and methodologies for isolated nual nonattainment and maintenance areas asrequired by Subparagraph (c) of Paragraph (2) of Subsection [GI

## L of20.2.99.128 NMAC; and (6) developmentof TCMs, in cooperationwith the department. [12/14/94; 11/23/98; 20.2.99.1 17NMAC 

### - Rn, 20 NMAC 2.99.1 17 1013 1/02;A, 10/15/05]
20.2.99.1 18 AGENCY RESPONSIBILITIES IN CONSULTATION. A. The department shall be responsible for developing or providing: (1) emissions inventories; (2) emissions budgets; (3) air quality modeling; (4) attainment demonstrations; (5) control strategy implementationplan revisions; (6) regulatory TCMs; and (7) updated motor vehicle emissions factors. B. The designatedMPO (or, in nonattainment or maintenance areas where an MPO has not been established, 

## [-I NMDOT) shallbe responsible for: (1) developing transportation plans and TIPs; (2) developing and evaluating TCM transportationimpacts; (3) developing transportation and socioeconomic data and planning assumptions and providing such data and planning assumptionsfor use in air quality analysis to determine conformity oftransportation plans, TIPs, and projects; (4) monitoring regionally significant projects; (5) developing system- or facility-basedor other programmatic (non-regulatory) TCMs; (6) providing technical input on emissionsbudgets; and (7) performing transportation modeling,regional emissions analyses and documentation oftimely implementation ofTCMs needed for conformity assessments. C. [-I NMDOT shallbe responsible for: (1) providing technical input on proposed revisions to motor vehicle emissions factors; (2) distributing draft and final highway or transit project environmental documentsto other agencies; and (3) convening air quality technical review meetingson specifichighway or transit plans, programs and projects when requestedby other agencies or asneeded.

20.2.99 NMAC

### D. FHWA New Mexico offices and FTA region 6 shallbe responsible for: (1) 

### assuring timely action on finalfindings ofconformity, after consultation with other agencies as provided in 20.2.99.1 16through 20.2.99.124 NMAC; and (2) 

### providing guidance on conformityand the transportation planning processto agencies participating in the interagency consultationprocess. 

### E. EPA region 6 shall be responsible forproviding guidance on conformity criteria and proceduresto agencies participating in the interagencyconsultation process. [12/14/94; 11/23/98; 20.2.99.1 18NMAC 

## - Rn,20 NMAC 2.99.1 18 10131/02;A, 10/15/05]
20.2.99.120 

### CONSULTATIONPROCEDURESFOR SPECIFIC MAJOR ACTIVITIES. An interagency consultation process among the members ofthe lead andparticipating agencies shallbe undertaken for the following specific major activitiesin accordance with all the procedures specifiedin 20.2.1 19NMAC above. The lead agency for each activity shall be as specified, and the participating agencies shall be the agencies specified in Subsection C of20.2.99.1 16NMAC above. 

### A. Evaluation and choice ofeach model (or models) and associated methods and assumptions to be used in hot-spot analyses and regional emissionsanalyses, including vehicle miles traveled (VMT) forecasting. The lead agency shallbe the MPO (or NMDOT in the absence of an MPO). 

### B. Determinationof which minor arterialsand othertransportation projects shouldbe considered "regionally significant" for the purposes ofregional emissions analysis(in addition to those functionally classifiedas principal arterialorhigher or fixed guideway systems or extensions that offer an alternative to regional highway travel), and which projects shouldbe considered to have a significant change in design concept and scope from the transportation plan or TIP. The lead agency shallbe the MPO (or [the4MWW]NMDOT in the absence of an MPO). 

### C. Evaluation ofwhether projects otherwise exempted from meeting the requirements of this part (see 20.2.99.149NMAC) should be treated as non-exemptin cases where potential adverse emissionsimpacts may exist for any reason. The lead agency shallbe 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 implementationof TCMs which are behind the schedule established in the SIPhave been identified and arebeing overcome, and whether state and local agencies with influence over approvalsor hnding for TCMs are giving maximum priority to approvalor fundingfor TCMs. Consultation shall also include consideration of whether delaysin TCM implementation necessitate revisions to the SIPto remove TCMs or substitute TCMs or other emission reduction measures. The lead agency shall be the MPO (or [-I NMDOT in the absence of an MPO). 

### E. Determination, as required by 20.2.99.140 NMAC, ofwhether: (1) 

### the project is included in the regional emissions analysis supporting the currently conforming TIP'S conformity determination, even ifthe project is not strictly "included"in the TIP for the purposesofMPO project selection or endorsement,and (2) 

### the project's design concept and scopehave changed significantly from those which were included in the regional emissions analysis, or in a manner which would significantly impactuse ofthe facility; the lead agency shallbe the MPO (or [-I NMDOT in the absence of an MPO). 

### F. Determination ofwhat forecast ofvehicle miles traveled (VMT) to use in establishingor tracking


### - -- 

# -

.

### emissions budgets, developing transportationplans, TIPS, or making conformity determinations. The lead agency shallbe the MPO (or 

## [-I NMDOT in the absence ofan MPO). G. Verificationof what forecast ofvehicle miles traveled (VMT) to use in developing SIPS. The lead agency shallbe the air quality bureau ofthe department. 

### H. Consultation,within the context of a memorandum of agreement, on emissions analysis for transportation activitieswhich cross the borders ofMPOs ornonattainment areas or air basins. The lead agency shallbe [-I NMDOT. 

### I. An interagency consultationprocess shall be undertaken for evaluating events which will trigger new conformity determinationsin addition to those triggering events established in 20.2.99.1 1 1NMAC through 20.2.99.1 15NMAC. The lead agency shallbe the MPO (or [-I NMDOT in the absence ofan MPO). 

### J. In the event that the metropolitan planning area does not include the entire nonattainment or maintenance area, an interagency consultationprocess involving the designated MPO forthe nonattainment or maintenance area, NMDOT, local transportation agencies, andthe department, shallbe undertaken, in the context of an MOA, for cooperativeplanning and analysisforpurposes ofdeterminingconformity of all projects outside the metropolitan area and withinthe nonattainment or maintenance area. The lead agency shallbe

20.2.99NMAC

## [-I NMDOT. 

### K. In nonattainment or maintenance areas where more than one MPO is involved, suchMPOs must develop a memorandumof agreementor memorandum ofunderstanding reflecting their consultation. L. In nonattainment or maintenance areas where the MPO'sjurisdiction does not cover the entire nonattainment or maintenance area, the MPO and 

## -1 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, asrequiredby Subparagraph (c) of Paragraph (2) of Subsection [GI Lof20.2.99.128 NMAC. The lead agency shall be the MPO (or [i%dMSWD] NMDOT in the absence of an MPO). [12/14/94; 11/23/98; 20.2.99.120 NMAC 

## - Rn,20 NMAC 2.99.120 10/31/02;A, 10/15/05]
20.2.99.121 CONSULTATIONPROCEDURES FOR SPECIFICROUTINE ACTIVITIES. An interagency consultation process among the lead and participating agencies shallbe undertaken for the following routine activities 

### in accordance with all the procedures specifiedin 20.2.99.119 NMAC. The lead agency for each activity shallbe as specified, and the participating agencies shall be the agencies specified in Subsection C of 20.2.99.1 16NMAC above or as specified for the specific activity. Not later than thirty (30) days prior to the preparation ofthe final document or decision, the lead agency shall supply all relevant information and documents, as appropriate,to the participating agencies. A. Identification, as requiredby SubsectionB of 20.2.99.146 NMAC, of projects located at sites in PMlO nonattainment areas which have vehicle and roadway emission and dispersion characteristicswhich 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 eitherthe MPO or [th&MSKB] NMDOT, in cooperationwith the department. 

### B. Assumption of the location and design concept and scope of projects which are disclosedto the MPO, as requiredby Subsection D of 20.2.99.121NMAC, but whose sponsorshave not yet decided these features in sufficient detail to perform the regional emissions analysis accordingto the requirements of 20.2.99.14 1NMAC through [2KLWM5]20.2.99.147 NMAC. The lead agency shallbe either the MPO or 

## [-I NMDOT. Participating agencies shall include recipients offunds 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., householdltraveltransportation surveys). The lead agency shall be eitherthe

### -1 NMDOT or the MPO, as applicable. Participating agencies shallbe the MPO, the department, and the 

## -1 NMDOT. D. Regionally SignificantNon-FHWNFTA Projects. (1) Assurance that plans for constructionofregionally significant projects which are not FHWAIFTA projects (including projects for which alternative locations, design concept and scope, or the no-build option are still being considered), including all those sponsoredby recipients offunds designated under title 23 U.S.C. or the federal transit laws, are disclosedto the MPO on a regular basis, and to assure that any changestothose plans are immediatelydisclosed. The lead agency for this process shall be the agency which is implementing the project. Participating agencies shallbe the MPO, the deparhnent, 

## [-I NMDOT, local transportation and transit agencies for the city or county in which the nonattainment or maintenance area is located, and recipients offunds 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, permittingor fundingor otherwise, shall disclose such project to the designated MPO for the nonattainment or maintenance area and [-I NMDOT in a timely manner. Such disclosure shallbe made not later than the first occasion on which any of the following actions is sought: (a) any policy board action necessary for the project to proceed; (b) the issuance of administrative permits for the facility or for construction ofthe facility; (c) the execution of a contractto design or constructthe facility; (d) the execution of any indebtedness for the facility; (e) any final action of a board, commissionor administrator authorizing or directing employees to proceed with design, permitting or construction of the project; or 

## (0 the executionof 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 nonattainmentor maintenance area, [-I NMDOT, and other interested agencies participating in the consultationprocess, suchregionally significant project and all other

20.2.99 NMACregionally significant projects of that sponsor shallbe deemed to be not included in the regional emissions analysis supportingthe currently conforming TIP's conformity determination and to be not consistent with the motor vehicle emissionsbudget in the SIP, for the purposes of20.2.99.140 NMAC. In the case of repeated failuresto disclose regionally significant projectsby an agency that becomes aware ofany such project through applications for approval, permittingor funding, all other regionally significant projectswithin the jurisdiction of such agency shall be deemedto be not included in the regional emissions analysis supportingthe currently conforming TIP's conformity determination and to be not consistentwith the motor vehicle emissions budget in the SIP, for the purposes of20.2.99.140 NMAC. (4) For the purposes of this section (20.2.99.12 1NMAC) and 20.2.99.140 NMAC, the phrase "adopt or approve of a regionally significant project" means the first time any action necessaryto authorizing a project occurs, such as any policy board action necessary for the project to proceed,the issuance of administrative permits for the facilityor for constructionof 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 ofthe project, or any written decision or authorizationfiom 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 10131/02;A, 10115/05]
20.2.99.122 

### NOTIFICATION PROCEDURES FOR ROUTINE ACTIVITIES. Notification of affected agencies (including those listed in Paragraph (1) of Subsection C of20.2.99.1 16 NMAC) of transportationplan or TIP revisions or amendments which merely add or delete exemptprojects listed in 20.2.99.149 NMAC, shall be the affirmative responsibility of [-I NMDOT andlorthe MPO. Such notification shall be provided not later than thirty (30) days prior to the preparation ofthe final draft ofthe document or decision. This process shall include: 

### A. notificationofthe affected agencies (including those listed in Paragraph (1) of Subsection C of 20.2.99.116NMAC) early in the process of decision on the final document; and 

### B. supplyingall relevant documents and informationto the affected agencies (including those listed in Paragraph (1) of Subsection C of20.2.99.1 16NMAC). [12/14/94; 11/23/98; 20.2.99.122 NMAC 

## - Rn, 20 NMAC 2.99.122 1013 1/02; A, 10/15/05]
20.2.99.123 

### CONFLICT RESOLUTION AND APPEALS TO THE GOVERNOR. A. Any conflict among state agencies or between state agencies and an MPO shall be escalated to the governor ifthe conflict cannot be resolved by the heads ofthe involved agencies. Prior to such escalation, such agencies shallmake every effort to resolve any differences,includingpersonal meetings between the heads of such agencies or their policy-level representatives, to the extent possible. 

### B. The departmenthas fourteen (14) calendardays to appeal a determinationof conformity(or other policy decision under this part) to the governor after [-I NMDOT or MPO has notified the department ofthe resolution of all comments on such determinationofconformity or policy decision. Such fourteen-dayperiod shall commence when the MPO or [th4WWH3]NMDOT has confirmedreceipt by the secretary ofthe department ofthe 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 appealunder this Subsectionto the MPO and 

## [-I NMDOT. Ifthe department does not appealto the governor within fourteen (14) days, the MPO or 

## -1 NMDOT may proceed with the final conformity determination. 

### C. In the case of any commentswith regard to findings of fiscal constraint under 20.2.99.127NMAC or the air quality effects ofany determinationof conformity, [-I NMDOT has fourteen (14) calendar days to appeal a determination of conformity (or other policy decision under this part) to the governor afterthe MPO has notified the department or [-I NMDOT of the resolution of all comments on such determination of conformity or policy decision. Such fourteen-dayperiod shall commence when the MPO has confirmedreceipt by the secretary ofthe departmentor [-I NMDOT ofthe resolution ofthe comments of [-I NMDOT. If [-I NMDOT appealsto the governor,the final conformity determination must have the concurrence ofthe governor. NMDOT must provide notice of any appeal under this subsection to the MPO and the department. If [-I NMDOT 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 ofhearing any such appeal under this Subsection and of decidingwhetherto concur in the conformity determinationto 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 responsibilityfor one ofthese functions,or an MPO.

20.2.99 NMAC[12/14/94; 11/23/98;20.2.99.123 NMAC 

## - Rn, 20 NMAC 2.99.123 10/31/02;A, 10/15/05]
20.2.99.125 CONTENT OFTRANSPORTATION PLANS. A. Transportation plans adopted after January 1, 1997,in serious, severe, or extreme ozone nonattainment areas and in serious carbon monoxidenonattainment areas. If the metropolitan planning area contains anurbanized area population greater than two hundred thousand (200,000),the transportation plan must specifically describe the transportation system envisionedfor certainfutureyears which shall be called horizon years. (1) The agency or organization developing the transportation plan, after consultation in accordance with 20.2.99.116 NMAC through 20.2.99.124NMAC, may choose any years to be horizon years, subject tothe followingrestrictions: (a) horizon years may be no more than ten (10) 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) ifthe attainment year is in the time span ofthe transportation plan, the attainment year shall be a horizon year. (d) the last horizon year shall be the last year ofthe transportation plan's forecast period. (2) For these horizon years: (a) the transportation plan shall quantify and document the demographic and employment factors influencing expected transportation demand, includingland use forecasts, in accordance with implementation plan provisions and 20.2.99.11 6 NMAC through 20.2.99.124NMAC; (b) the highway and transit system shall be describedin terms ofthe regionally significant additions or modifications to the existing transportationnetwork which the transportation plan envisionsto be operational in the horizon years; additions and modificationstothe highway network shall be sufficiently identified to indicate intersectionswith 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 ofits design concept and design scopeto 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 forthe future shall be identified in terms of design concept, design scope, and operating policies sufficientlyto allow modeling of their transit ridership; the description of additions and modifications to the transportation network shall alsobe sufficiently specificto show that there is a reasonable relationship between expected land use and the envisioned transportation system; and (c) other future transportation policies,requirements, services, and activities, including intermodal activities, shall be described. 

# rL B.



### . .

.. . (1 TWOyear grace period for transportationplan requirementsin certain ozone and CO areas. The requirements of SubsectionA of 20.2.99.125 NMAC applies to such areas or portions of such areas that have previouslynot been reauiredto meet these requirements for any existingNAAOS two years from the following: (1) the effective date ofEPA'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 censusbureau that determines the urbanized area population of a serious or above ozone or CO nonattainment area to be greaterthat 200,000; or (3) the effective date of EPA's action that classifies a newly designated ozone or CO nonattainment areathat has an urbanized area povulation greaterthan 200.000 as serious or above. C. Transportationplans for other areas. transportationplans for other areas must meet the requirements of Subsection A of 20.2.99.125 NMAC at least tothe extent it has been the previous practice ofthe MPO to prepare plans which meet those requirements. Otherwise, transportation plans must describe the transportation system envisioned for the hre specificallyenough to allow determination of conformity according to the criteria and procedures of 20.2.99.128NMAC through 20.2.99.138 NMAC. D. Savings. The requirements of this section (20.2.99.125 NMAC) supplement otherrequirements of applicablelaw 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 1013 1/02;A, 10/15/05]
20.2.99.128 CRITERIA AND PROCEDURES FOR DETERMINING CONFORMITY OF TRANSPORTATIONPLANS, PROGRAMS, AND PROJECTS

## - GENERAL.

20.2.99 NMACA. 

### In order for each transportationplan, program, and FHWARTA project to be found to conform the MPO and US DOT must demonstrate that the applicable criteria and procedures in this part are satisfiedand the MPO and US DOT must comply with all applicableconformity 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/FTAprojects or state projects),the relevantpollutant(s), and the status of the implementation plan. 

### B. The following table (Table 1) indicates the criteria and procedures in 20.2.99.129NMAC through 20.2.99.138 NMAC which apply for transportation plans, TIPs, and FHWA/FTA projects. Subsections C through [F] 

### Iofthis section (20.2.99.128NMAC) explainwhen the budget, interim emission [~duetk~], and hot spot tests are required for each pollutant andNAAOS. Subsection J of this section (20.2.99.128NMAC) addresses conformi@requirements for areas with approved or adequate limited maintenanceplans. Subsection

### K of this section (20.2.99.128 NMAC) addresses nonattainmentmaintenance areas which EPA has determinedhave insignificant motor vehicle emissions. Subsection [GI

## L of this section (20.2.99.128 NMAC) addresses isolated rural nonattainment and maintenance areas. Table 1follows. Table 1.Conformity Criteria. (1) All actions at all times (a) 20.2.99.129NMAC. Latest planning assumptions (b) 20.2.99.130 NMAC. Latest emissions model (c) 20.2.99.131NMAC. 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. Emissionsbudget and/or interim [Blgmissions [td+i&km] 

### (3) TIP (a) Subsection C of 20.2.99.132 NMAC. TCMs (b) 20.2.99.137NMAC and/or 20.2.99.138 NMAC. Emissionsbudget and lor interim LElgmissions [edwtkm] (4) Project (From a conformingplan and TIP) (a) 20.2.99.133 NMAC. Currently conformingplan and TIP (b) 20.2.99.134NMAC. Projectfkom a conformingplan and TIP (c) 20.2.99.135NMAC. CO and PMlO hot spots (d) 20.2.99.136NMAC. PM10and PM2.5 controlmeasures 

### (5) Project (Not from a conformingplan and TIP) (a) Subsection D of 20.2.99.132NMAC. TCMs (b) 20.2.99.133 NMAC. Currently conforming plan and TIP (c) 20.2.99.135 NMAC. CO and PMlO hot spots (d) 20.2.99.136 NMAC. PMlO and PM2.5 control measures (e) 20.2.99.137NMAC and/or 20.2.99.138 NMAC. Emissionsbudget and/or interim emissions [~edwtim] 

### C. 1-hour [Qlozonenonattainment and maintenance areas. This Subsection (Subsection C of Section 20.2.99.128NMAC) avvlies when an area is nonattainmentor maintenance for the 1-hour ozone NAAOS (i.e.,until the effectivedate of any revocation ofthe 1-hourozoneNAAOS for an area). In additionto the criteria listed in Table 1in Subsection 

### B of this section (20.2.99.128NMAC) that are required to be satisfied at all times, in ozone nonattainment and maintenance areas conformity determinations must include a demonstration that the budget and/or interim emission [wd+i&h] tests are satisfied as described in the following. (1) In all 1 -hour ozone nonattainmentand maintenance areas the budget test must be satisfiedas requiredby 20.2.99.137NMAC for conformity determinations made on or after: a) [) 

### . 

## . s] the effective data EPA's findingthat a motor vehicle emissionsbudget in a submittedcontrol strateev implementationplan revision or maintenance plan for the 1-hour ozoneNAAOS is adequate for transportation conformitv purposes; (b) [; 

### . 

## .

. . 

## [I J!E publication data of EPA's approval of such a budget in the federal register; or fc) the effective state ofEPA's approvalof such a budget in the federal register, if such approval is completed through direct final rulemaking.

20.2.99 NMAC(2) In ozone nonattainment areas that are requiredto submit a control strategy implementation plan revision for the 1-hourozone NAAOS (usually moderate and above areas),the interim emissions [~c&&k] tests must be satisfiedasrequired by 20.2.99.138 NMAC for conformity determinations made when there is no approved motor vehicle emissions budget form an applicable implementation plan for the 1-hour ozone NAAOS and no adequate motor vehicle emissionsbudget form a submitted control stratem implementationplan revision or maintenanceulan for the 1-hourozoneNAAOS. [[ 

## . .

. . *I (3) An ozone nonattainment area must satisfy the interim emissions [F~I&&M] test for NOx, as required by 20.2.99.13 8 NMAC, ifthe implementation plan or plan submission that is applicable for the purposes of conformity determinations is a fifteenpercent (15%) plan or phase I attainment demonstration that does not include a motor vehicle emissions budget forNOx. The implementation plan for the 1-hour ozoneNAAOS will be consideredto establish a motor vehicle emissionsbudget for NOx ifthe implementation plan or plan submission containsan explicitNOx motor vehicle emissionsbudget that is intended to act as a ceiling on futureNOx emissions, and the NOx motor vehicle emissionsbudget is a net reduction fiom NOx emissions levels in 1990. (4) Ozone nonattainment areas that have not submitted a maintenanceplan and that arenot required to submit a control strategy implementation plan revision for the 1-hour NAAOS (usually marginal and below areas) must satisfy one of the following requirements: (a) the interim emissions [id+&&] 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 NAAOS that contains motor vehicle emissionsbudget(s) and a reasonable furtherProILress or an attainment demonstration, and the budget test requiredby 20.2.99.137 NMAC must be satisfied using the adequate or approved [&m&d]motor vehicle emissionsbudget(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 ofclean data for the 1-hourozone NAAOS that have not submitted a maintenance plan and that US EPA has determinedare not subject to the Clean Air Act reasonable further progress and attainment demonstration requirements forthe 1 -hour NAAOS must satisfy one of the followingrequirements: (a) the interim emissions [zdwtkm] tests as requiredby 20.2.99.138 NMAC; (b) the budget test as requiredby 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 NAAOS (subject to the timing requirements of Paragraph (1) of Subsection C of 20.2.99.128 NMAC); or (c) the budget test as requiredby 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 rulemakingthat determines that the area has clean data for the 1 -hour ozone NAAOS. 

### D. 8-hour ozone NAAQS nonattainment and maintenanceareas without motor vehicle emissions budgets forthe 1 -hour ozone NAAOS for any portion ofthe 8-hournonattainment 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 NAAOS but that never submitted a control strategy SIP or maintenanceplan with apvroved or adequate motor vehicle emissions budgets. This Subsection (Subsection

### D of Section 20.2.99.128 NMAC) auulies one (1) year after the effective date ofEPA's nonattainment designation for the 8-hour ozone NAAOS for an area. according to Subsection

### D of20.2.99.109 NMAC. In the addition to the criteria listed in Table 1 in Subsection

### B of 20.2.99.128 NMAC that are requiredto be satisfied at all times, in such 8-hour ozone nonattainment and maintenance areas conformitv determinationsmuch include a demonstration that the budget andlor interim emissions tests are satisfied as described in the following. [l) In such 8-hour ozone nonattainment and maintenanceareas the budget test much be satisfied as required by Section 20.2.99.137 NMAC for conformity determinationsmade on or after; la) the effective date ofEPA's finding that a motor vehicle emissionsbudget in a submitted control strategy implementationplan revision or maintenanceplan for the 8-hour ozone NAAOS is adequate for transportation conformitv purposes;

20.2.99NMAC

### (b) the publication date ofEPA's approval of such a budget in the federal register: or
c the effective date ofEPA's approval of such a budget in the federal register. if such approval is completed through direct finalrulemaking (2) In ozone nonattainment areas that are requiredto submit a control stratem implementationplan revision for the 8-hour ozone NAAOS (usually moderate and above and certain Clean Air Act. part 

### D subpart 1 areas), the interim emissions tests must by satisfied as requiredby Section 20.2.99.138 NMAC for conformity determinationsmade when there is no approvedmotor vehicle emissionsbudget ffom an applicable implementation plan for 8-hour ozoneNAAOS and no adequatemotor vehicleemissions budget ffom a submitted control strategy implementation plan revision or maintenanceplan for the 8-hourNAAOS. (3) 

### Such an 8-hour ozone nonattainment area must satisfy the interim emissions test forNOx, as required bv Section20.2.99.138 NMAC. if the implementationplan or plan submission that is applicable forthe purposes of conformity determination is a fifteen percent (15%) 

### plan or other control strategy SIPthat addresses reasonable further progress that doesnot include a motor vehicle emissions budget forNOx. The implementation plan forthe &hour ozoneNAAOS will be considered to establish a motor vehicle emissions budget forNOx ifthe implementation plan or plan submission contains an explicitNOxmotor vehicle emissions budget that is intended to act as a ceilingon futureNOx emissions, andthe NOx motor vehicle emissions budget is a netreduction ffomNOx emissionslevels in 2002. (4) 

### Ozone nonattainment areas that have not submitted a maintenance plan and that are not required to submit a control strategyim~lementation plan revision for the &hour ozoneNAAOS (usuallv marginal and certain Clean Air Act. part D, 

### subpart 1areas) must satisfy one ofthe following requirements: [a) the interim emissions tests requiredby Section 20.2.99.138NMAC; or /b) the department shall submitto EPA an implementation plan revision for the 8-hourozone NAAOS that contains motor vehicle emissionsbudget(s) and a reasonable further progress or attainment demonstration, and the budget test required by Section 20.2.99.137NMAC must be satisfied using the adequate or approved motor vehicle emissionsbudget(s) (as describedin Paragraph(1) of Subsection

### D of 20.2.99.128 NMACI. (5) 

### Notwithstanding Paragraphs (1) and (2) of Subsection

### D of 20.2.99.128NMAC, 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 subiecttothe Clean Air Act reasonable furtherprogress and attainment demonstration requirements for the 9-hour ozoneNAAQS must satisfi one of the following requirements: (a) the interim emissionstests as reauired by Section 20.2.99.138NMAC; Jb) 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 ozoneNAAOS (subiecttothe timinv requirements ofParanaph (1) of Subsection 

### D of 20.2.99.128 NMAC: or Ic) the budgettest as required by Section 20.2.137 NMAC, using the motor vehicle emissions of ozoneprecursors in the most recent vear of clean data as motor vehicle emissions budgets, if such budgets are establishedby the EPA rulemaking that determines that the area has clean data for the 8-hour ozone NAAOS. 

### E. 8-hour ozone NAAOS nonattainment and maintenance areas with motor vehicle emissions budgets for the 1 -hour ozoneNAAQS that cover all or a portion ofthe 8-hour nonattainment area. This provision applies one (1) vear afterthe effective date ofEPA's nonattainmentdesiaation for the 8-hour ozone NAAOS for an area, according to Subsection

### D of Section2.20.99.109 NMAC. In addition to the criteria listing in Table 1in Subsection 

### B ofthis section (2.20.2.128 NMAC) that are required to be satisfied at all times, in such 8-hour ozone nonattainment and maintenance areas conformitv determinationsmust include a demonstration that thebudget and/or interim emissions tests are satisfied as 

### described in the following. (1) In 

### such 8-hour ozone nonattainmentand maintenance areas the budget test must be satisfied as required by Section 20.2.99.137NMAC for conformity determinations made on or after: 

### la) the effective date ofEPA's finding that a motor vehicle emissionsbudpet in a submitted control stratem implementationplan revision or maintenanceplan forthe 8-hour ozone NAAOS is adequate for transportation conformitypumoses; /b) the publication date ofEPA's approval of such a budget in the federalregister; or Jc) the effective date ofEPA's approval of such a budget in the federal register. - 

### is such approval is completed through direct final rulemaking. (2) Prior to Paragraph (1) or Subsection E ofthis section (20.2.99.128 NMAC) applying,the followingtest(s) must be satisfied, subject to the exceptionin Subparawaph (e) ofParamaph (2) of Subsection

### E of this section (20.2.99.128NMAC). (a) If the &hour ozone nonattainment area coversthe same geographic area as the 1 -hour

20.2.99NMACozonenonattainment or maintenancearea(s) 

# .the budget test as reauired by Section20.2.99.137 NMAC using the approved or adequate motor vehicle emissions budgets in the 1-hour ozone applicable implementationvlan or imvlementation plan submission. /b) If the 8-hour ozone nonattainment area covers a smaller geographic area within the 1-hour ozonenonattainment or maintenancearea(s), the budget test as requiredby Section 20.2.99.137 NMAC for either the 8-hournonattainment area using correspondingvortion(s) ofthe approved or adequate motor vehicleemissions budgets in the 1-hourozone applicable implementation plan or imvlementation plan submission where such portion(s1can reasonablvbe identified through the interagencv consultation process required by Section20.2.99.1 16 NMAC ;or the 1-hournonattainment area using the approved or adequatemotor vehicle emissionsbudgets inthe 1- hour ozone applicable imvlementation vlan or implementation vlan submission. If additional emissionreductions are necessary to meet the budget test for the 8-hour ozone NAAOS in such cases, these emissions reductionsmust come fiomwithin the 8-hour nonattainment area. Jc) Ifthe &hour ozone nonattainment area covers a larger geoaaphic area and encompasses the entire 1-hourozone nonattainmentor maintenancearea(s) the budget test as reauired by Section20.2.99.137 NMAC for the portion of the 8-hour ozone nonattainment areacovered by the approved or adequatemotor vehicle emissions budgets in the 1-hour ozone applicable implementation plan or implementation plan submission; and the interim emissionstests as reauired bv Section 20.2.99.138NMAC for either: the vortion ofthe 8-hour ozone nonattainment area not coveredbv the avvroved or adequatebudgets in the 1-hour ozone imvlementationplan, the entire 8-hour ozone nonattainment area. or the entirevortion ofthe 8-hour ozone nonattainment area within an individual state, in the case where separate 1-hourSIP budgets are established for each state of a multi-state 1-hour nonattainment area partiallv covers a 1-hour ozonenonattainment or maintenance area(s). 

### (dl Ifthe 8-hour ozone nonattainment areapartiallv covers a 1 -hour ozone nonattainment of maintenance area(s)the budget test as required bv Section 20.2.99.137NMAC for the portion ofthe 8-hour ozone nonattainment area covered by the corresponding portion ofthe approved or adequate motor vehicle emissions budgets in the 1-hour ozone applicable implementationplan or implementation vlan submission where they can be reasonablv identified through the interagency consultationprocess requiredbv Section20.2.99.1 16NMAC 

### :andthe interim emissions tests as required by Section 20.2.99.138NMAC. when applicable. for either: the portion of the 8- hour ozonenonattainment area not covered by the avvroved or adequate budgets in the 1 -hour ozone implementationplan. the entire 8-hour ozone nonattainment area, or the entire vortion ofthe 8-hour ozone nonattainment area within an individual state. in the case where sevarate 1-hour SIP budgets are establishedfor each state in a multi-state 

### I-hour nonattainment or maintenancearea. (e) Notwithstanding Subparaaavhs(a). 

### Ib). (c), and (d) ofParagraph (2) of Subsection E of this section (20.2.99.128 NMAC). the interim emissions tests as reauired by Section 20.2.99.138 NMAC, where the budget test using the approved or adequate motor vehicleemissions budget in the 1-hour ozone apvlicable implementationvlan(s) or imvlementationplan submission(s)forthe relevant area or vortion thereof is not the appropriate test and the interim emissions tests are more appropriateto ensure that the transportation plan. TIP, or project not fiom a conforming vlan and TIP will not create new violations. worsen existing violations, or delay timely attainment ofthe 8-hour ozone standard. as determined throughthe interagency consultationprocess required bv Section20.2.99.116NMAC. /3) Such an 8-hour ozone nonattainment areamust satisfv the interim emissions test forNOx. as reauiredbv Section 20.2.99.138NMAC, ifthe only implementation plan or plan submission that is applicable for the purposes ofconformity determinationsis a fifteen percent (15%) plan or other control stratem SIPthat addresses reasonable furthervrom-essthat does not include a motor vehicle emissions budget for NOx. The implementation plan for the 8-hour ozoneNAAOS will be consideredto establish a motor vehicle emissions budget forNOx ifthe implementation plan or plan submission containsan explicitNOx motor vehicle emissionsbudget that is intended to act as a ceiling on future NOx emissions,and the NOxmotor vehicle emissionsbudget is a net reduction fiom NOx emissions levels in 2002. Prior to an adequate or approved NOxmotor vehicle emissions budget in the implementationplan submissionfor the 8-hour ozoneNAAOS. the implementationplan for the 1-hour ozoneNAAOS will be consideredto establish a motor vehicle emissions budget forNOx-if the implementation vlan contains on explicitNOx motor vehicle emissions budget that is intended to act as a ceiling on futureNOx emissions. and the NOx motor vehicle emissionbudget 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 NMAC), ozone nonattainment areas with three years of clean data for the 8-hour ozone NAAOS that have not submitted a maintenance plan and that EPA has determined are not subjectto the Clean Air Act reasonable fiuther promess and attainment demonstration requirement for the 8-hour ozone NAAOS must satisfb one ofthe followingrequirements: (a) the budget test and/or interim emissionstests arerequired by Sections 20.2.99.137 NMAC

20.2.99 NMACand 20.2.99.138 NMAC and as described in Paragaph (2) of Subsection E of this section (20.2.99.128NMAC); Jb) 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 stratew implementationplan for the 8-hour ozoneNAAOS (subiectto the timing requirements of Paracrravh (1) of Subsection E of 20.2.99.128NMAC: or Jc) the budget test asrequired by Section 20.2.99.137NMAC. using the motor vehicle emissionsof ozone precursors in the most recent year ofclean data as motor vehicle emissionsbudgets. if such budgets are establishedby the EPA rulemaking that determines that the area has clean data for the 8-hourozone NAAOS.

### [B]F. COnonattainment and maintenance areas. 

### In additionto the criteria listed in Table 1in Subsection

### B of 20.2.99.128 NMAC that arerequired to be satisfied at all times, in CO nonattainment and maintenanceareas conformity determinationsmust include a demonstration that the hot spot,budget and/or interim emissions 

### [~eth&k]tests are satisfied asdescribed in the following. (1) FHWA/FTA projects in CO nonattainment or maintenance areas must satisfy the hot spot test required by SubsectionA of 20.2.99.135NMAC at all times. Until a CO attainment demonstration or maintenance plan is approvedby US EPA, FHWA/FTA projects must also satisfy the hot spot test required by Subsection

### B of 20.2.99.135NMAC. (2) In COnonattainment and maintenance areas the budget test must be satisfied as requiredby 20.2.99.137NMAC for conformity determinationsmade on or after:



### . . (1 

## [I I] the effectivedate of EPA's finding that a motor vehicle emissionsbudget in a submitted control strategy implementationplan revision or maintenance plan is adequate for transportation conformitvpurposes; (b) [; 

### . 

## .

. 

## . *I i?E publication date ofEPA's approval of such a budget in the federal register: or (c) the effective date ofEPA's approval of such a budget in the federal register. if such approval is completed through direct finalrulemaking. (3) Except as provided in Paragraph (4)of Subsection 

### [B]Fof20.2.99.128NMAC, in CO nonattainmentareas the interim emissions 

### [~edwth] tests must be satisfied as required by 20.2.99.138 NMAC for conformitydeterminations made when there is no approvedmotor vehicle emissions budget &oman avvlicable implementationplan and no adequate motor vehicle emissionsbudget &oma submitted control strategy implementation plan revision or maintenance plan. 

### I@: ) 

### . .



## . . 

### -1 (4) CO nonattainment areas that have not submitted a maintenanceplan and that are not required to submit an attainment demonstration (e.g., moderate CO areaswith a design value of 12.7ppm or less or not classified CO areas) must satisfy one of the following requirements: (a) the interim emissions 

### [&H&HI] tests requiredby 20.2.99.138 NMAC; or (b) the department shall submit to US EPA an implementationplan revision that contains motor vehicle emissionsbudget(s) and an attainment demonstration, and the budget test requiredby 20.2.99.137 NMAC must be satisfied using the [stt8Rtl#e$] adequate or approved motor vehicle emissionsbudget(s) (as described in Paragraph (2) of Subsection [Dl

## F of20.2.99.128 NMAC). 

### [BIG. PMlO nonattainment and maintenance areas. In addition to the criteria listed in Table 1in Subsection

### B of20.2.99.128 NMAC that are required to be satisfied at all times, in PMlOnonattainment and maintenance areas conformity determinationsmust include a demonstrationthat the hot spot,budget and/or interim emissions 

### [~edwth] tests are satisfied as described in the following. 

### (1) FHWA/FTAprojects in PMlO nonattainment or maintenance areas must satisfy the hot spot test requiredby 20.2.99.135 NMAC. (2) In PMlO nonattainment and maintenance areasthe budget test must be satisfied as requiredby 20.2.99.137NMAC for conformity determinations made on or after:

20.2.99 NMAC

### a) [) 

## . . -1 the effective date ofEPA's finding that a motor vehicle emissions budget in a submitted control stratem imvlementationplan revision ormaintenanceplan is adequate for transportation conformitv purvoses; (b) 

## 11 . .

. 

## . a1 

## Ik publication date ofEPA's avproval of such a budget in the federal register;or {c) 

### the effective data ofEPA's approval of such abudget in the federal register, if such approval is completed through direct finalrulemaking. (3) 

### In PMlO nonattainmentareas the interim emissions [14e&k] tests must be satisfied as required by 20.2.99.138 NMAC for conformity determinationsmade: a) 

## [I . 

## . 

# a] ifthere is no avprovedmotor vehicle emissions budget fiom an apvlicable imvlementation plan and no adeauate motor vehicle emissionsbudget from a submitted control stratem implementationvlan revision or maintenancevlan: or 

### @ If VS EPAA- 

# x . .

. 

## . -1 [&j](b) 

### if the submittedimplementation plan revision is a demonstration of impracticability under CAA Section 189(a)(l)(B)(ii) and does not demonstrate attainment. [FIE. NO2 nonattainment and maintenance areas. In addition to the criteria listed in Table 1in SubsectionB of 20.2.99.128NMAC that are required to be satisfied at all times, in NO2 nonattainment and maintenance areas conformity determinationsmust include a demonstrationthat thebudget andor interim emissions [idwtk] tests are satisfied as described in the following. (I) 

### In NO2 nonattainmentand maintenance areasthe budget test must be satisfied as required by 20.2.99.137 NMAC for conformity determinations made on or after: a) 

## [I 

## . . 

## [I the effective date ofEPA's findingthat a motor vehicle emissions budget in a submitted control stratern,implementationplan revision ormaintenanceplan is adeauate for transvortation conformity purposes. (b) 

## [P . 

## .

. . -1 publication date of EPA's avvroval of such a budget in the federal register; or (c) 

### the effective data ofEPA's approval of such a budget in the federal register, if such approval is com~leted through direct final rulemaking. (2) 

### In NO2 nonattainment areas the interim emissions [1~41&km] tests must be satisfied as required by 20.2.99.138 NMAC for conformity determinationsmade when there is no avuroved motor vehicle emissions budget fiom an apvlicable implementationvlan and no adequatemotor vehicle emissions budget fiom a submitted control strategy implementationplan revision or maintenance plan.[:] 

## 1: . .



### . . 

## -1 I. 

### Ph42.5 nonattainment and maintenance areas. In addition to the criteria listed in Table 1in Subsection B of Section20.2.99.128 NMAC that are required tobe satisfiedat all times, in Ph42.5 nonattainment and maintenance areas conformitv determinationsmust include a demonstration that the budget andor interim emissionstests are satisfied as described in the following: (1) 

### in PM2.5 nonattainmentand maintenance areas the budget in a submitted control strategy implementation plan revision or maintenance vlan is adequate for transportation conformitypuruoses;

20.2.99NMACa the effective date ofEPA's finding that a motor vehicle emissions budget in a submitted control strategyimplementation plan revision or maintenanceplan is adequate for transportation conformity purposes; 

### (b) the publication date ofEPA's approval of such a budget in the federal register; or (c) the effective data ofEPA's approval of such a budget in the rederal register. if such approval is completed through direct finalrulemaking. (2) In PM2.5 nonattainment areas the interim emissions tests must be satisfied as reauired by Section 20.2.99.138NMAC for conformity determinations made ifthere isno approved motor vehicle emissionsbudget fiom an applicable implementationplan and no adequatemotor vehicleemissionsbudget fiom a submittedcontrol strategy implementation plan revision or maintenanceplan. J. Areas with limited maintenance plans. Notwithstanding the other paraaaphs of this section, an area is not required to satisfythe regional emissions analysisfor Sections 20.2.99.137NMAC and/or 20.2.99.138 NMAC for a givenpollutant andNAAQS, if the area has an adequate or approved limited maintenanceplan would have to demonstrate that it would be unreasonableto expect that such an area would experience enoughmotor vehicle emissions growth for a NAAOS violationsto occur. A conformity determinationthat meets other auulicable criteriain Table 1or Subsection

### B of this section (20.2.99.128 NMAC) is stillrequired. including the hot-spot reauirementsfor proiects in CO and PMlO areas. K. Areas with insignificantmotor vehicle emissions. Notwithstanding the other Subsectionsin this section (20.2.99.128 NMAC), and area is not requiredto satisfy a re~ional emissions analysis for Sections 20.2.99.137NMAC and/or 20.2.99.138NMAC for a given pollutantlprecursor and NAAQS, ifEPA findsthrough the adeauacy or approval process that a SIP demonstrates that regional motor vehicle emissions are an insignificant contributor to the air qualityproblem for thatpollutant/precursorand NAAQS. The SIP would have to demonstrate that it would be unreasonableto expect that such an area would experience enough motor vehicle emissionsgrowth in that pollutant/precursorfor a NAAOS violation to occur. Such a findingwould be based on a number offactors, including the percentage of motor vehicle emissionsin the contextofthe 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 historicaltrends and futureproiections ofthe growth ofmotor vehicle emissions. A conformity determination that meets other applicable criteria in Table 1or Subsection

### B ofthis section(20.2.99.128NMAC) is still required, including regional emissions analyses for Sections 20.2.99.137NMAC and/or 20.2.99.138 NMAC for other pollutants/precursorsandNAAQS that a~plv. Hot-spot requirements for proiects in CO PMlO area in Section 20.2.99.135 NMAC must also be satisfied,unless EPA determined that the SIP also demonstrates that projectswill not createnew localized violations and/or increase the severityor number of existing violations of such NAAOS. If EPA subsequentlv finds that motor vehicle emissions of a given pollutantl~recursor are significant, this subsection would no lower apply for future conformity determinationsfor that pollutantlprecursorand NAAQS. [GIL. Isolatedrural nonattainment and maintenance areas. This subsection appliesto any nonattainment or maintenance area (or portion thereof)which does not have a metropolitan transportationplan or TIP and whose projects are not part ofthe emissions analysis of any MPO's metropolitan transportation plan or TIP. This subsection does not apply to "donut" areas which are outsidethe metropolitan planning boundary and inside the 

### nonattainmentlmaintenancearea boundary. (1) FHWAIFTA projects in all isolated rural nonattainment and maintenance areas must satisfy the requirements of 20.2.99.129NMAC through 20.2.99.13 1NMAC, SubsectionD of 20.2.99.132NMAC, 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, FHWAETAprojects must also satisfy the requirements of Subsection

### B of20.2.99.135 NMAC ("Localized CO and PMlO violations (hot spots)"). (2) Isolatedrural nonattainment and maintenance areas are subjectto the budget and/or interim emissions [mhetkm] tests as described in Subsections C through [F]

## K of20.2.99.128NMAC, with the following modifications: (a) when the requirements of 20.2.99.137 NMAC and 20.2.99.138NMAC applyto isolated rural nonattainment and maintenance areas, referencesto "transportation plan" or "TIP" should be taken tomean those projects in the statewide transportation plan or statewide TIP which are in the rural nonattainment or maintenancearea. (b) in isolated rural nonattainmentand maintenance areas that are subject to 20.2.99.137 NMAC, FHWAETA projectsmust be consistentwith motor vehicle emissionsbudget(s) for the years in the timefiame ofthe attainment demonstration or maintenanceplan. For years after the attainment year (if a maintenance plan has not been submitted) or after the last year of the maintenance plan, FHWAIFTA projectsmust satisfy one ofthe following requirements:

20.2.99NMAC(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, notwithstandingParagraph (2) of Subsection [Dl

## F of20.2.99.138 NMAC; or (iii) as demonstrated by the air quality dispersionmodel or other air qualitymodeling technique used in the attainment demonstration or maintenance plan, the FHWNFTA project, in combination with all other regionally significant projects expected in the area in the timeframe ofthe statewide transportation plan, must not cause or contribute to any new violationof any standardin any areas; increase the frequencyor severityof any existing violation of any standard in any area; or delay timely attainmentof any standard or any required interim emission reductions or other milestones in any area; controlmeasures 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 methodologyused to meet the requirementsof item (iii) of Subparagraph (b)of Paragraph (2) of Subsection

### G of 20.2.99.128NMAC must be determined through the interagency consultation process required in Paragraph 

### (6) of Subsection

### B of20.2.99.117NMAC and Paragraph (5) of Subsection C of 20.2.99.117NMAC through which the relevant recipientsoftitle 23 U.S.C. or federal transit laws funds, 

### [the NMSWI3] NMDOT, the department, orthe 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]
20.2.99.129 CRITERIAAND PROCEDURES

## - LATEST PLANNING ASSUMPTIONS. A. Except as provided in this paragraph, [T]fie conformity determination,with respect to all other applicable criteriain 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 

### [d the conformity [&~~MMR] analysis begins. The conformity determination must satisfy the requirements of Subsections

### B through F of20.2.99.129 NMAC using the plannin~ assumptions available at the time the conformity analysis begins as determined through the interagency consultation process required Subparagraph (a) ofParagraph (1) of Subsection C of Section20.2.99.1 16NMAC. The "timethe conformity analysis begins" for a transportationplan or TIP determinationin the point at which the MPO orthe other designated agencvbegins to model the impact ofthe proposed transportationplan or TIP on travel andlor emissions. New data that becomes available after an analysisbegins is required to be used in the conformitv determination onlv if a significantdelay in the analysishas occurred,as determinedthrourrh interagencv 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 distributionofpopulation growth) must be derivedfrom the estimates of current and futurepopulation, employment,travel, and congestionmost recently developed by the MPO, or other agency authorizedto make such estimates and approvedby the MPO. The conformity 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 operatingpolicies (including fares and service levels) and assumed transit ridership have changed sincethe previous conformity determination. D. The conformity determination must include reasonable assumptions about transit service and increases in transit fares and road and bridge tolls overtime. E. The conformity determination must use the latest existing information regarding the effectiveness ofthe TCMs and other implementation plan measures which have already been implemented. F. Key assumptions shall be specified and included in the draft documents and supportingmaterials used for the interagency and public consultationrequired by 20.2.99.1 16NMAC through 20.2.99.124 NMAC. [12/14/94; 11/23/98; 20.2.99.129 NMAC 

## - Rn, 20 NMAC 2.99.129 10131/02; A, 10115/05]
20.2.99.135 CRITERIA AND PROCEDURES

## - LOCALIZED CO AND PMlO VIOLATIONS (HOT SPOTS). A. This paragraph applies at all times. The FHWMTAproject must not cause or contribute to any new localized CO or PMlO violationsor increase the frequency or severityofany existing CO or PMlO violationsin CO and PMlO nonattainrnent and maintenance areas. This criterionis satisfied if it is demonstratedthat duringthe time frame ofthe transportation plan (or regional emissionsanalysis) [MI no new local violationswill be created and the severity or number of existing violations will not be increased as a result ofthe project. The demonstration

20.2.99NMAC 20shallbe performed according to the consultationrequirements of Subsection A of 20.2.99.120 NMAC andthe methodologyrequirements of 20.2.99.146 NMAC. B. This paragraph applies for CO nonattainment areas as described in Paragraph (1) of Subsection [Dl 

### F of20.2.99.128 NMAC. Each FHWA/FTA project must eliminate or reduce the severity and number of localizedCO violations in the area substantiallyaffected by the project (in CO nonattainment areas). This criterion is satisfied with respect to existing localized CO violationsif it is demonstrated that duringthe time fiame ofthe transportation plan (or regional emissions analysis) existinglocalized CO violations will be eliminatedor reduced in severity and number as a result of the project. The demonstration must be performed accordingtothe 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; 20.2.99.135NMAC 

## - Rn, 20 NMAC 2.99.135 10/31/02;A, 10/15/05]
20.2.99.136 CRITERIAAND PROCEDURES

# - COMPLIANCE WITH PMlO and PM2.5 CONTROL MEASURES. The FHWA/FTA project must comply with PMIOand PM2.5 control measures in the applicable implementation plan. This criterion is satisfiedifthe project-level conformity determination contains a written commitment fiomthe project sponsorto include in the finalplans, specifications, and estimates for the project those control measures (for the purpose of limiting PMlOand PM2.5 emissions fiom the construction activitiesandor normal use and operation associated with the project) that are contained in the kp~licable implementation SIP. [12/14/94; 11/23/98;20.2.99.136 NMAC 

## - Rn,20 NMAC 2.99.136 10131/02;A, 10/15/05]
20.2.99.137 CRITERIAAND PROCEDURES

## - MOTOR VEHICLE EMISSIONS BUDGET. A. The transportationplan, TIP, and projectnot fiom a conforming transportationplan and TIP must be consistent with the motor vehicle emissionsbudget(s) in the applicable control strategy implementationplan (or implementation plan submission). This criterion applies as describedin Subsections C through [GI

## L of 20.2.99.128 NMAC. This criterion is satisfied if it is demonstrated that emissionsof the pollutants or pollutant precursors describedin Subsection C of 20.2.99.137NMAC are less than or equalto the motor vehicle emissionsbudget(s) establishedin the applicable implementationplan or implementation plan submission. B. Consistency with the motor vehicle emissionsbudget(s)must be demonstrated for each year for which the applicable (andor submitted) implementation plan specifically establishes motor vehicle emissions budget(s), forthe attainmentvear (if it is within the time fiame ofthe transportationplan) for the last year ofthe transportation plan's forecast period, and for any intermediateyears as necessary sothat the years for which consistencyis demonstrated are no more than ten years apart, as follows. (1) Until a maintenanceplan is submitted: (a) emissions in each year (such as milestone years and the attainment year) for which the control strategy implementation plan revision establishes motor vehicle emissionsbudget(s)must be less than or equal tothat year's motor vehicle emissionsbudget(s); and (b) emissions in years for which no motor vehicle emissionsbudget(s) are specifically established must be less than or equal tothe motor vehicle emissionsbudget(s) established for the most recent prior year; for example, emissions in years after the attainmentyear for which the implementationplan does not establish a budget must be less than or equalto the motor vehicle emissionsbudget(s) for the attainmentyear. (2) When a maintenanceplan has been submitted (a) emissions must be less than or equalto the motor vehicle emissionsbudget(s) established forthe last year ofthe maintenanceplan, and for any other years for which the maintenanceplan establishes motor vehicle emissionsbudgets; ifthe maintenanceplan does not establish motor vehicle emissionsbudgets for any years other than the last year ofthe maintenanceplan, the demonstration ofconsistencywith the motor vehicle emissions budget($ must be accompaniedby a qualitative findingthat there are no factors which would cause or contribute to a new violation or exacerbatean existingviolation in the years before the last year ofthe maintenanceplan; the interagencyconsultation process required by 20.2.99.1 16 NMAC through 20.2.99.124 NMAC shall determinewhat must be considered in orderto make such a finding; (b) for years afterthe last year ofthe maintenance plan, emissions must be lessthan or equal to the maintenance plan's motor vehicle emissionsbudget(s) for the lastyear ofthe maintenanceplan; [A] (c) if an approved andor submitted control strategy implementationplan has established motor vehicle emissionsbudgets for years in the timefiame ofthe transportationplan, emissionsin these years must be less than or equalto the control strategy implementation plan's motor vehicle emissionsbudget(s) for these years[:] :and Id) for any analysis years before the last year ofthe maintenanceplan, emissionsmust be less than or eaualto the motor vehicle emissionsbudget(s) established forthe most recent prior vear. C. Consistencywith the motor vehicle emissionsbudget(s)must be demonstrated for each pollutant

20.2.99NMAC 2 1or pollutant precursor in Subsection

### B of20.2.99.109 NMAC (or 20.2.99.101 NMAC) for which the area is in nonattainment or maintenanceand for which the applicable implementationplan (or implementationplan submission) establishes a motor vehicle emissionsbudget. 

### D. Consistencywith the motor vehicle emissionsbudget(s)must be demonstratedby including emissions fiom the entire transportation system, including all regionally significant projects contained in the transportation plan and all other regionally significanthighway and transit projects expected in the nonattainmentor maintenance area in the timefiame ofthe transportationplan. (1) Consistencywith the motor vehicle emissionsbudget(s) must be demonstratedwith a regional emissions analysis that meets the requirementsof 20.2.99.141NMAC through [N&%l45] 20.2.99.147NMAC and 20.2.99.120 NMAC. (2) The regional emissions analysismay be performed for any years in the timefiame ofthe transportation plan provided they are not more than ten years apart and provided the analysis is performed for the attainment year (if it is in the timefiame of the transportationplan) and the last year of the plan's forecastperiod. Emissions in years for which consistencywith motor vehicle emissionsbudgets must be demonstrated, as required in Subsection

### B of 20.2.99.137NMAC, may be determinedby interpolating between the years for which the regional emissions analysis is performed. 

### E. Motor vehicle emissions budgets in submitted control strategy implementationplan revisions and submittedmaintenanceplans. (1) Consistencywith the motor vehicle emissionsbudgets in submitted control strategy implementation plan revisions or maintenance plans must be demonstratedifUS EPA has declared the motor vehicle emissions budget(s) adequate for transportation conformitypurposes, [[



### . . and the 

## CI - adequacy finding is effective. However, motor vehicle emissions budgets in submitted implementationplans do not supersedethe motor vehicle emissionsbudgets in approved implementationplans for the same Clean Air Act requirement and the period ofyears addressedby the previously approved implementationplan, unless US EPA specifies otherwise in its approval of a SIP. (2) If US EPA has notdeclared an implementation plan submission's motor vehicle emissions budget(s) [&]adequatefor transportationconformity purposes,the [+swkpte] budget(s) shall not be used to satisfy the requirementsofthis section. Consistencywith the previously establishedmotor vehicle emissionsbudget(s) mustbe demonstrated. If there are no previously approved implementationplans or implementation plan submissions with adequate motor vehicle emissionsbudgets, the interim emissions [~edwtkn] tests required by 20.2.99.138 NMAC must be satisfied. (3) If US EPA declares an implementation plan submission's motor vehicle emissionsbudget(s)



### . 

## . inadequate for transportation conformitypurposes [TI afterUS EPA had previouslv found the budaet(s) adequate. and conformity of a transportation plan or TIP has already been determinedby US DOT using the budget(s), the conformity determination will remain valid. Projects included in that transportation plan or TIP could still satisfy 20.2.99.133NMAC and 20.2.99.134 NMAC, which require a currently conforming transportationplan and TIP to be in place at the time ofa project's conformity determination and that projects come fiom a conforming transportationplan 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 implementationplan revision or maintenanceplan was endorsedby the governor (orhis or her designee)and was subjectto a statepublic hearing; (b) 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 documentationwas provided to US EPA; and US EPA's stated concerns, if any, were addressed; (c) the motor vehicle emissionsbudget(s) is clearly identified and precisely quantified; (d) the motor vehicle emissionsbudget(s), when considered together with all other emissions sources, is consistent with applicablerequirements for reasonablefurther progress, attainment, or maintenance (whicheveris relevant to the given implementation plan submission); (e) the motor vehicle emissionsbudget(s) is consistentwith and clearly relatedto the emissions inventory and the control measures in the submitted control strategy implementationplan revision or maintenance plan; and (f) revisions to previously submitted control strategy implementationplans or maintenance

20.2.99 NMAC

### plans explain and documentany changestopreviously submitted budgets and control measures; impacts on point and area source emissions;any changes to established safety margins (see Subsection 

### [AI] Bof 20.2.99.7 NMAC for definition); and reasons for the changes (including the basis for any changes related to emission factors or estimatesofvehicle miles traveled). (5) 

### Before determiningthe adequacy of a submittedmotor vehicle emissions budget, US EPA will reviewthe department's compilationofpublic commentsand response to comments that arerequired to be submitted with any implementation plan. US EPA will document its consideration of such comments and responses in a letter tothe department indicatingthe adequacy of the submitted motorvehicle emissions budget. 

### (6) When the motor vehicle emissionsbudgeys) used to satisfy the requirements of this section are establishedby an implementationplan submittal that has not yet been approvedor disapprovedby US EPA, the 

### MPO and US DOT'Sconformity determinations will be deemed to be a statement thatthe MPO and US DOT are not aware of any information that would indicate that emissionsconsistent with the motor vehicle emissionsbudget will cause or contribute to any new violation of any standard; increasethe fiequency or severity of any existing violation of any standard; or delay timely attainmentof any standardor any required interim emission reductions or other milestones. 

### F. Adequacy review process for implementation plan submissions. US EPA will use the procedure listing in Paragraph (1) of SubsectionF 

### ofthis section (20.2.99.137NMAC) to reviewthe 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: Ja) 

### US EPA will notify the public through US EPA's website when US EPA receives an implementation plan submissionthat will be reviewed for adequacy; [b) 

### the public will have a minimum of 30 days to comment on the adequacy ofthe implementation plan submission;ifthe complete implementation plan is not accessible electronically throughthe internetand a copy is reauested within fifteen (15) days ofthe date ofthe websitenotice. the commentperiod will be extended 30 days from 

### the date that a copy ofthe 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 adequateor inadequate foruse in transportation conformitv. including response to any comments submitteddirectlv and review of comments submitted through the departmentprocess, or US EPA will include the determination of adequacy or inadequacy in a proposed or final action approving or disapprovingthe implementation plan under Subparagraph(c) ofParagraph (2) of SubsectionF 

### of this section (20.2.99.137NMAC); 

### 1 US EPA will publish a federal register notice to inform the public ofUS EPA's finding; if EPA finds the submissionadequate, the effective date ofthis finding will be fifteen (15) days 6om the date the notice ispublished as establishedin the federal register notice, unless US EPA istaking a final approval action on the SIP as describedin Subparagraph(c) of Paragraph (2) for SubsectionF 

### for this section (20.2.99.137NMAC); 

### le) US EPA will announce whetherthe implementation plan submission is adequate or inadequate for use in transportation conformity on US EPA's website; the websitewill also include US EPA's response to comments of any comments were received during the public comments period; 

## 0 if afterUS EPA has found a submission adequate. US EPA has causeto reconsider this finding,US EPA will repeat actions described in Subparagraphs(a) through (e) of Paramavh (1) of SubsectionF 

### or Paramaph (2) of Subsection F 

### of 20.2.99.137 NMAC unless US EPA determines that there isno need for additional public comment given the deficienciesofthe implementationplan 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 immediatelyupon the date ofUS EPA's letter to the department; (g) 

### if after EPA has found a submission inadequate,US EPA has cause to reconsider the adequacyofthat budget, US EPA will repeat actions described in Subparagraphs (a) through (e) of Paragraph (1) of this section (20.2.99.137 NMAC). (2) 

### When US EPA reviews the adequacy of an implementation plan submission simultaneouslywith US EPA's approval or disapproval ofthe implementationplan: la) 

### US EPA's federal register notice ofproposed or direct finalrulemaking will serveto notify the public that US EPA will be reviewing the implementation plan submission for adequacy; Jb) 

### the publication of the notice ofproposed rulemaking will start a public comment period of at least thirtv (30) days; (c) 

### US EPA will indicate whether the implementation plan submission is adeauate andthus can be used for conformity either in US EPA's finalrulemakine;orthrough the process described in Subparagraphs(c)

20.2.99NMAC 23through (e) ofParagraph (1) of Subsection 

### F ofthis section (20.2.99.137 NMAC); ifUS EPA makes an adequacy findingthrouh a final rulemaking that approves the implementation plan submission. such a finding will become effectiveupon the publication date of US EPA's approval in the federal register. or upon the effective date ofUS EPA's approval if such action is conducted through direct final rulemaking: US EPA will respond to comments received directlv and review comments submittedthrough the department process and include the response to commentsin the applicable docket. [12/14/94; 11/23/98; 20.2.99.137 NMAC 

## - Rn,20 NMAC 2.99.137 10/31/02;A, 10115/05]
20.2.99.138 CRITERIA AND PROCEDURES

# - [PI INTERIM EMISSIONS IN AREAS WITHOUT MOTOR VEHICLE EMISSIONS BUDGETS. A. The transportation plan, TIP, and project not fkom a conforming transportation plan and TIP must [- 

### . 

## . ] satisfy the interim emissionstest(s) as described in Subsections C through L of 20.2.99.128 NMAC. This criterion applies 

# [c 2.n 1- 

### . . .&.,,. +] to the net effect of the action (transportationplan, TIP, orproject not fiom a conforming transportationplan and TIP) on motor vehicle emissions fiom the entire transportation system. B. Ozone areas. The requirements ofthis subsection (Subsection 

### B of 20.2.99.138 NMAC) applyto all 1-hourozone and 8-hour ozone NAAOS areas, except for certain requirements as indicated. This criterionmay be met. (1) [illn moderate and above ozone nonattainment areas that are subject to the reasonable further progress requirements of CAA Section 182(b)(l) 

## [I -1 if a regional emissions analysis that satisfiesthe requirements of 20.2.99.141 NMAC through [%.2.??.W] 20.2.99.147 NMAC and Subsections [GI 

### Gthrough [R]

## Ti of 20.2.99.138 NMAC demonstratesthat for each analysis year and for each ofthe pollutants described in Subsection [Dl

### E of20.2.99.138 NMAC: [@]m the emissions predicted in the "action" scenario are less than the emissions predicted in the "baseline" scenario, and this can be reasonably expected tobe true in the periods between the analysis years; and [@](bJ the emissions predicted in the "action" scenario are lower than 1990 emissionsby any nonzero amount. in areas for the 1-hour ozoneNAAOS 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 NAAOS as described in SubsectionsD and E of20.2.99.128 NMAC. J2) In marginal and below ozone nonattainment areas and other ozone nonattainment areasthat are not subiect to the reasonable further progress requirements ofthe 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 20.2.99.138 NMAC demonstrates that for each analysis vear and for each of the pollutants described in Subsection

### F of 20.2.99.138 NMAC: la) the emissions predicted in the "action" scenario are not e~eater than the emissions predicted in the "baseline" scenario, and this can be reasonably expectedtobe true in the periods between the analvsis vears; or - Jb) the emissions predicted in the "action" scenario are not greater than the 1990emissions, in areas for the 1-hour NAAOS as described in Subsection C of 20.2.99.128 NMAC ;or the 2002 emissions, 

### in areas forthe 8-hour ozone NAAOS as described in SubsectionsD and E for 20.2.99.128 NMAC. C. CO areas. This criterion may be met: J1) in moderate areas with desim values neaterthan 12.7 ppm and serious COnonattainment areas that are subject to Clean Air Act Section 187(a)(7) ifa regional emissions analvsis 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 demonstratesthat for each analvsis year and for each ofthe 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 Jb) the emissions predicted in the "action" scenarioare lower than 1990emissionsby any nonzero amount. (2) in moderate areas with design values lessthan 12.7ppm and not classified CO nonattainment
areas if a regional emissions analysis that satisfies the requirementsof Sections 20.2.99.141 NMAC through 20.2.99.147NMAC and Subsections 

### G through J of 20.2.99.138 NMAC demonstrates that for each analysisvear and for each of the pollutants described in Subsection

### F of 20.2.99.138 NMAC:

20.2.99NMAC[a) the emissionspredicted in the "action" scenario are not greater than the emissions predicted in the "baseline" scenario. and this can be reasonably expectedto be true in the periods between the analysisvears; or 

### - [b) the emissions predicted in the "action" scenario are not greaterthan 1990 emissions.



## 01 if a regional emissions analysis that satisfies the requirements of 20.2.99.141 NMAC through [2Q.2.93.145] 20.2.99.147 NMAC and Subsections [El

## G through [GI

### J of 20.2.99.138 Nh4AC demonstratesthat for each analysis year and for each of the pollutants described in Subsection [B]

## F of 20.2.99.138 NMAC, one ofthe following requirementsis met: (1) the emissions predicted in the "action" scenario are [less]not greaterthan the emissions predicted in the "baseline" scenario, and this can be reasonably expectedto be true in the periodsbetween the analysis years; or (2) the emissions predicted in the "action" scenario are not greaterthan baseline emissions; baseline emissions are those estimatedto have occurred during calendaryear 1990, unless the conformity implementation plan revision required by 40 CFR 51.390 defines the baseline emissions for a PMlO areato be those occurringin a different calendar year for which a baseline emissions inventory was developed for the purpose of developing a control strategy implementationplan. 

### E. PM2.5 areas. This criterion maybe met in PM2.5 nonattainment areas if a regional emissions analysis that satisfiesthe requirements of Sections 20.2.99.141NMAC through 20.2.99.147 NMAC and Subsections G through J of 20.2.99.138NMAC demonstrates that for each analvsis vear and for each ofthe pollutants described in SubsectionF of 20.2.99.138 NMAC, one ofthe following requirements is met: (1) the emissions predicated in the "action" scenario are not meaterthan the emissions predicted in the "baseline" scenario,and this can be reasonably expected to be true in the periods between the analysisvears; or (2) the emissions predicted 

### in the "action" scenario are not greater that 2002 emissions. [B]F. Pollutants. The regional emissions analysismust be performed for the following pollutants: (1) VOC in ozone areas; (2) NOx in ozone areas,unless the US EPA administrator determinesthat additional reductions of NOx would not contributeto attainment; 

### (3) CO in CO areas; (4) PMlOinPMlOareas; (5) [[I 

# mc andlorNOx in PMlO areas ifthe US EPA regional administratoror the departmenthas made a finding that such precursor emissionsfiom within the area are a significant contributorto the PMlO nonattainment problem and has so notified the MPO and US DOT; [dl (6) NOx in NO2 areas;

. , 

### (7) PM2.5 areas; and (8) reentrainedroad dust in PM2.5 areas only ifthe US EPA regional administrator or the department has made a finding that emissionsfi-omreentrained road dust within the area are a significant contributorto the PM2.5 nonattainment problem and has so notified the MPO and US DOT. [BIG. Analysis years[+]

# . Theregional emissions analysismust be performed for analysis years that are no more than ten (10) years apart. The first analysis year must be no more than five (5) years beyond the year in which the conformitydeterminationis being made. The last year of transportation plan's forecast period must also be an analysis year. (2) For areas using Subparaaaph (a) of Paragraph(2) of Subsection

### B of Section20.2.99.138 Nh4AC. Subparagraph (a) ofParagraph (2) of Subsection C of Section20.2.99.138NMAC. Paragraph (1) of SubsectionD of Section20.2.99.138 NMAC. and Paragraph (1) of Subsection E of Section 20.2.99.138NMAC, a regional emissions analysis that satisfies the requirements of Sections20.2.99.14 1NMAC through 20.2.99.147 Nh4AC and Subsections

### G through J of Section 20.2.99.138 would not be required for analysis years in which the transportationproiects and planning assumptionsin the "action" and "baseline" scenarios are exactly the same. In such a case, Subsection A of Section 20.2.99.138NMAC can be satisfiedby documentingthat the transportation proiects and planning assumptions in both scenarios are exactly the same. and consequently. the emissionspredicted in the "action" scenario are not meater than the emissions predicted in the "baseline" scenario for such analysis years.

20.2.99NMAC[FIB. "Baseline" scenario. The regional emissionsanalysis required by Subsections B and [€I

### E of 20.2.99.138NMAC must estimate the emissions that would result 6omthe "baseline" scenario in each analysis year. The "baseline" scenariomust be defined for each ofthe analysisyears. The "baseline" scenario is the future transportation system that will result 6om current programs, including the following (except that exempt projects listed in Subsection A of 20.2.99.149 NMAC and projects exempt 6om regional emissions analysis as listed in Subsection B of20.2.99.149 NMAC need not be explicitly considered): (1) all in-place regionally significanthighway and transit facilities, services and activities; (2) all ongoing travel demand management or transportation system management activities; and (3) completion of all regionally significant projects, regardlessoffunding source, which are currently under constructionor are undergoingright-of-way acquisition (except for hardship acquisition and protective buying); come from the first year ofthe previously conforming transportation plan and/or TIP; or have completed the NEPA process. [GI). "Action" scenario. The regional emissions analysis requiredby Subsections B and [€I

### E of 20.2.99.138NMAC must estimatethe emissions that would result 6omthe "action" scenario in each analysis year. The "action" scenariomust be defined for each ofthe analysisyears. The "action" scenario is the transportation systemthat would result 6omthe implementation of the proposed action (transportation plan, TIP, or project not 6om a conforming transportation plan and TIP) and all other expectedregionally significant projects in the nonattainment area. The "action" scenariomust include the following (except that exempt projects listed in SubsectionA of 20.2.99.149 NMAC and projects exempt 6om regional emissions analysis as listed in Subsection

### B of 20.2.99.149NMAC 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 assumedto begin at a future time unless the regulation is already adoptedby the enforcing jurisdiction or the TCM is identified in the applicable implementation plan; (3) all travel demandmanagement programs and transportation system management activitiesknown to the MPO, but not included in the applicable implementationplan or utilizing any federal funding or approval, which have been fully adopted and/or fundedby the enforcing jurisdiction or sponsoring agency since the last conformity determination; (4) the incremental effects of any travel demandmanagement programs and transportation system management activities known to the MPO, but not includedin the applicable implementationplan or utilizing any federal funding or approval, which were adopted and/or funded prior to the date of the last conformity determination, but which have been modified since then to be more stringentor effective; (5) completion of all expected regionally significanthighway and transit projects which are not 6om a conformingtransportation plan and TIP; and (6) completion of all expected regionally significantnon-FHWAFTA highway and transit projects that have clear funding sources and commitments leadingtoward their implementation and completionby the analysis year. 

### [HIJ. Projectsnot 6om a conforming transportationplan and TIP. For the regional emissions analysis requiredby Subsections B and [€I

### Eof 20.2.99.138NMAC, ifthe project which is not 6om a conforming transportationplan and TIP is a modificationof a project currentlyin the plan or TIP, the "baseline" scenariomust 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; 20.2.99.138NMAC 

### - Rn,20 NMAC 2.99.138 10131/02;A, 10115/05]
20.2.99.139 CONSEQUENCES OF CONTROL STRATEGY IMPLEMENTATION PLAN FAILURES. A. Disapprovals. (1) If US EPA disapproves any submitted control strategy implementationplan revision (with or without a protective finding), the conformity status ofthe transportationplan and TIP shall lapse on the date that highway sanctionsas a result of the disapproval are imposed on the nonattainment area under Section 179(b)(l) of the CAA. No new transportation plan, TIP, orproject may be found to conformuntil another control strategy implementation plan revision fulfillingthe same CAA requirements is submitted and conformity to this submission is determined. (2) IfUS EPA disapproves a submitted control strategy implementationplan revision without making



### . . a protective finding, 

# [m] only projects in the first threeayears ofthe currently conforming transportationplan and TIP may be found to conform. This means that

20.2.99NMACbeginning [m] on the effective date of a disapproval without a protective finding, no transportation plan, TIP, or project not in the first threel2lyears ofthe currently conformingplan and TIP may be found to conform until another control strategy implementation



## .. . plan revision fulfillingthe same Cb AkAct requirementsis submitted 

## [E

.. 

## . -1, US EPA fmds its motor vehicle emissions budget(s) adequate pursuant to Section20.2.99.137 NMAC or approvesthe submission. and conformitvto the implementation plan revision is determined. (3) In disapproving a control strategy implementation plan revision, US EPA would give a protective finding where a submittedplan contains adopted controlmeasures or written commitmentsto adopt enforceable control measures that fully satisfythe emissionsreductions requirements relevant to the statutoryprovision for which the implementationplan revision was submitted, such as reasonable firther progress or attainment. 

### B. Failure to submit and incompleteness. In areas where US EPA notifies the department,MPO, and US DOT ofthe department's failureto submit a control strategy implementationplan or submission of an incomplete control strategy implementationplan revision (either ofwhich initiates the sanction process under CAA Sections 179 or 110(m)), the conformity status of the transportationplan and TIP shall lapse on the date that highway sanctionsare imposed on the nonattainment area for such failure under Section 179(b)(l) ofthe CAA, unless the failure has been remedied and acknowledged by a letter komthe US EPA regional administrator. C. Federal implementationplans. IfUS EPA promulgates a federal implementationplan that containsmotor vehicle emissionsbudget(s) as a result of a department failure, the conformity lapse imposed by 20.2.99.139 NMAC because ofthe department failure is removed. [12/14/94; 11/23/98;20.2.99.139NMAC 

### - Rn,20 NMAC 2.99.139 1013 1/02;A, 10/15/05]
20.2.99.140 REQUIREMENTS FOR ADOPTION OR APPROVAL OFPROJECTS 

### BY OTHER RECIPIENTS OF FUNDS DESIGNATED UNDER TITLE 23 U.S.C. OR THE FEDERAL TRANSIT LAWS A. Except as provided in SubsectionB of20.2.99.140 Nh4AC, no recipient of federal funds designated under title 23 U.S.C. orthe federal transit laws shall adopt or approve a regionally significanthighway or transit project, regardlessof funding source,unless the recipient fmdsthat the requirements of one ofthe following are met: (1) the project [fi] comeskom the currently 

### ..'



## . . 

## . conformingtransportationplan and TIP[[ 

## [I and the project's design concept and scope 

### [kits] have not changed significantly kom those analyses for that transportationplan and TIP; or 2 the proiect is included 

### in the regional emissions analvsis for the currently conforming transportation plan and TIP conformity determination(even ifthe proiect is not strictly included in the transportation plan or TIP for the purpose ofMPO proiect selection or endorsement) and the project's design concept and scope have not changed significantlyform those which were included in the regional emissions analvsis; or [(2j](3J [m] a new regional emissions analysis includingthe project and the currently conforming transportationplan and TIP demonstrates that the transportation plan and TIP would still conform ifthe project were implemented (consistent with the requirements of 20.2.99.137 NMAC and/or 20.2.99.138 Nh4AC for a projectnot from a conforming transportation plan and TIP). 

### B. In isolated rural nonattainment and maintenance areas subjectto SubsectionG of 20.2.99.128 NMAC, no recipient of federal funds designatedunder title 23 U.S.C. or the federal transit laws shall adopt or approve a regionally significanthighway or transitproject, regardless of funding source,unless the recipient finds 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 [fe~tlw] that reflects the portion of the statewide transportationplan 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 significant projects expected in the nonattainment or maintenancearea demonstrates that those projects in the statewide transportation plan and statewide TIP which are in the nonattainment or maintenance area would still conform ifthe project were implemented (consistentwith the requirements of 20.2.99.137NMAC and/or 20.2.99.138 Nh4AC for projectsnot kom a conforming transportationplan and TIP).

20.2.99 NMACC. Notwithstanding Subsections A and 33 of Section20.2.99.140 NMAC, in nonattainmentand maintenance areas subiectto SubsectionsJ or 

### K of Section 20.2.99.128NMAC for a givenpollutant/precursorand NAAOS, no recipient of federal funds designated under title 20 U.S.C. orthe federal transit laws shall adopt or approve a regionally significanthighway ortransit proiect. regardless of funding source. Unless the reci~ient finds that the requirementsof one ofthe following are met for that pollutant/vrecursorand NAAOS: (1) the proiect was included in the most recent conformity determination for the transportationplan and TIP and the vroiect's design concept and scopehas not changed significantly:or (2) the proiect as included in the most recent conformity determination that reflects the portionsof the statewide transportationplan and statewide TIPwhich are 

### inthe nonattainmentor maintenance area, and the proiect's design concept and scope has not changed significantlv. [12/14/94; 11/23/98;20.2.99.140NMAC 

## - Rn, 20 NMAC 2.99.140 10131/02;A, 10115/05]
20.2.99.143 PROCEDURES FOR DETERMINING REGIONAL TRANSPORTION- RELATED POLLUTION EMISSIONS 

### -TWO-YEAR GRACE PERIOD FOR REGIONAL EMISSIONS ANALYSIS REOUIREMENTSIN CERTAIN OZONE AND COAREAS. The requirementsof20.2.99.142NMAC apvly in such areas or portions of such areas that have not previously been required to meet these requirements for any existingNAAOS two years £rom the following: A. the effective date ofUS EPA's reclassificationofan ozone or CO nonattainment area that have an urbanized area population meater than 200.000 to serious or above; B. the official notice by the censusbureau that determines the urbanized area povulationof 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 greaterthan 200.000 as serious or above. [12/14/94; 11/23/98;20.2.99.143 NMAC 

## - Rn, 20NMAC 2.99.143, 10131/02;20.2.99.143NMAC

# - N, 10/15/05] [2&LWA4] 20.2.99.144 PROCEDURES FOR DETERMINING REGIONAL TRANSPORTATIONRELATED POLLUTANT EMISSIONS 

# --AREAS WHICH ARE NOT SERIOUS, SEVERE OR EXTREME OZONE NONATTAINMENT AREAS OR SERIOUS CARBON MONOXIDE AREAS. In all areas not otherwise subjectto 20.2.99.142 NMAC, regional emissions analyses must use those procedures describedin 20.2.99.142 NMAC ifthe use of those procedureshas been the previous practice of the MPO. Otherwise, areasnot subjectto 20.2.99.142 NMAC may estimate regional emissionsusing any appropriate methods that accountfor VMT growthby, for example, extrapolatinghistorical VMT or projecting future VMT by consideringgrowth in population and historical growth trends for VMT per person. These methods must also consider future economic activity, transit alternatives, and transportationsystem policies. [12/14/94; 11/23/98; 20.2.99.144NMAC 

## - Rn, 20 NMAC 2.99.144, 10131/02;20.2.99.144 NMAC

# - Rn, 20.2.99.143 NMAC, 10/15/05] [%MM44] 20.2.99.145 PROCEDURES FOR DETERMINING REGIONAL TRANSPORTATIONRELATED POLLUTANT EMISSIONS

## -- PMlO FROM CONSTRUCTION-RELATED FUGITIVE DUST. A. For areas in which the implementation plan does not identify construction-related fugitivePMlO as a contributor to the nonattainment problem, the fugitive PMlO emissions associated with highway and transit project construction are not required to be considered

### inthe regional emissions analysis. B. In PMlO nonattainment and maintenance areaswith implementation plans which identify construction-related fugitive PMlO as a contributortothe nonattainment problem, the regional PMlO emissions analysis shall consider construction-related fugitivePM10 and shall account for the level of construction activity, the fugitive PMlO control measures in the SIP, and the dust-producing capacity ofthe proposed activities. [12/14/94; 11/23/98;20.2.99.145 NMAC 

## - Rn,20 NMAC 2.99.145, 10131/02; 20.2.99.145NMAC 

## - Rn, 20.2.99.144 NMAC, 10/15/05]
20.2.99.146 PROCEUDURES FOR DETERMINING REGIONAL TRANSPORTATION 

## - RELATED POLLUTANT EMISSIONS 

## -- PM2.5 FROM CONSTRUCTION

## - RELATED FUGITIVE DUST. A. For PM2.5 areas in which the implementation plan does not identifvconstruction-related fugitive PM2.5 as a significant contributorto the nonattainmentproblem. the fugitivePM2.5 emissions associatedwith highway and transit proiect construction are not required to be consideredon the regional emissions analysis. B. In PM2.5 nonattainmentand maintenance areas with implementation plans which identifv construction-related fugitive PM2.5 as a significant contributorto the nonattainment problem. the regional PM2.5

20.2.99NMAC 28emissions 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-vroducine capacity ofthe proposed activities. [12/14/94; 11/23/98; 20.2.99.146 NMAC 

## - Rn,20 NMAC 2.99.146, 1013 1/02; 20.2.99.146 NMAC 

## - N, 10/15/05] [X&%l45] 20.2.99.147 PROCEDURESFOR DETERMINING REGIONAL TRANSPORTATIONRELATEDPOLLUTANT EMISSIONS

# -- RELIANCE ON PREVIOUS REGIONAL EMISSIONS ANALYSIS. A. [a] Conformi@determinations for a new transportationplan and/or TIP may be demonstrated to satisfy the requirements of Section 20.2.99.137 NMAC ("Motorvehicle emissions budget") or Section 20.2.99.138 NMAC ("Emissionreductions in areaswithout motor vehicle emissions budgets") without new regional emissions analysis if the regional emissions analysis [w] ifthe previous regional emissions analysis also applies to the new vlan andlor TIP. This requires a demonstration that: (1) the new plan and/orTIP contains all projects which must be started in the plan and TIP'S timeframe3in order to achieve the highway and transit system envisioned by the transportationplan; (2) all plan and TIP projects which areregionally significant are included in the transportation plan with design concept and scope adequate to determine their contribution to the transportationplan's andlor TIP'S regional emissions at the time ofthe ["--.-...3,t.,,] previous conformity determination;and (3) the designconcept and scopeofeach regionally significantproject in the new vlan andforTIP [is] arenot significantly different from that described in the previous transportation plan[,]& 

### - (4) the previous regional emissions analysis is consistent with the requirements of Section 20.2.99.137 NMAC (including that conformityto all currently applicable budgets is demonstrated)and/or Section 20.2.99.138 NMAC, as applicable. 

### B. A project which is not ffom a conforming transportation plan and a conformingTIP may be demonstrated to satisfy the requirements of 20.2.99.137NMAC or 20.02.99.138NMAC without additionalregional emissions analysisif allocatingfunds to the project will not delay the implementation ofprojects in the transportationplan or 

### TIP which are necessary to achievethe highway and transit system envisioned by the transportationplan, the previous regional emissions analysisis still consistentwith the requirementsof Section 20.2.99.137NMAC (includingthat conformityto all currently applicable budgets is demonstrated)andforSection 20.2.99.138NMAC. as applicable. and ifthe project is either: (1) not regionally significant; or (2) included in the conforming transportationplan (even if it is not specificallyincluded in the latest conforming TIP) with design concept and scope adequateto determine its contribution to the transportation plan's regional emissions at the time ofthe transportation plan's conformity determination,and the design concept and scope ofthe project is not significantly different &omthat described in the transportationplan. C. A conformitydetermination that relies on this section (20.2.99.147NMAC) doesnot satisfy the ffequency requirements of Sections20.2.99.112 NMAC and 20.2.99.1 13 NMAC. [12/14194; 11/23/98; 20.2.99.147 NMAC 

## -Rn,20 NMAC 2.99.147, 10131/02; 20.2.99.147NMAC

# - Rn, 20.2.99.145NMAC & A, 10/15/05] 

### [24&W&%] 20.2.99.148 PROCEDURESFOR DETERMINING LOCALIZED COAND PMlO CONCENTRATIONS (HOT-SPOT ANALYSIS). A. CO Hot-spot Analysis. (1) The demonstrations required by 20.2.99.135NMAC shallbe based on quantitative analysisusing the applicable air qualitymodels, data bases, and other requirements specified in 40 CFR part 5 1appendix 

### W ("Guidelineon Air Quality Models"). These procedures shallbe used in the following cases, unless, different procedures developed through the interagency consultation process required 

### in 20.2.99.1 16NMAC 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 categoriesof sites which are identified in the SIP as sites ofviolation or possible violation; (b) forprojects affecting intersections that are at level-of-service 

### D, E, or F, or those that will changeto level-of-service

### D, E, or F because of increased traffic volumes related to the project; (c) for any project affecting one or more of the intersectionswhich the SIP identifies as the top three intersections

### in the nonattainment or maintenancearea based on the highest traffic volumes;and (d) for any project affecting one or more ofthe intersectionswhich the SIP identifies asthe top three intersections in the nonattainmentor maintenanceareabased on the worst levelof service.

20.2.99NMAC(2) In cases other than those described in Paragraph (1) of Subsection A of20.2.99.146 NMAC, the demonstrations requiredby 20.2.99.135NMAC may be based on either: (a) quantitative methods that represent reasonable and common professional practice; or 

### (b) a qualitative consideration of local factors,ifthis can provide a clear demonstration that the requirements of 20.2.99.135 NMAC are met. B. PMlO Hot-spot Analysis. (1) The hot-spot demonstration requiredby 20.2.99.135 NMAC shall be based on quantitative analysis methods for the following types of projects: (a) projects which are located at sites at which violationshave been verified by monitoring; (b) projects which are located at sites which have vehicle and roadway emission and dispersion characteristics that are essentially identical to those of sites with verified violations (including sites near one at which a violation has been monitored); and 

### (c) new or expandedbus and rail terminals and transfer points which increase the number of diesel vehicles congregatingat a single location. (2) Where quantitative analysis methods are not required, the demonstration required by 20.2.99.135 NMAC may be based on a qualitative consideration oflocal factors. (3) The identificationofthe sites described in Subparagraphs (a) and (b) ofParagraph (1) of SubsectionB of 20.2.99.146 NMAC and other cases where quantitative methods are appropriate, shall be determinedthrough the interagency consultation process required in 20.2.99.1 16NMAC through 20.2.99.124 NMAC. US DOT may choose to make a categorical conformity determination on bus and rail terminals or transfer points based on appropriate modeling of various terminal sizes, configurations, and activity levels. (4) The requirements of this Subsection

### B of20.2.99.146 NMAC for quantitative analysis will not take effect until EPA releases modeling guidance on this subject and announcesin 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 fiom the implementationofthe project, summed togetherwith futurebackground concentrations. The total concentration shall be estimated and analyzed at appropriate receptor locationsin the area substantially affectedby the project. (2) Hot-spot analyses shall include the entire project, and may be performed only after the major design features which will significantlyimpact concentrationshave been identified. The future background concentration should be estimated by multiplying currentbackground by the ratio of future to current traffic and the ratio of future to current emission factors. (3) Hot-spot analysis assumptions shall be consistentwith those in the regional emissions analysis for those inputs which are required for both analyses. (4) PMlO or CO mitigationor control measures shall be assumed in the hot-spot analysis only where there are written commitments fiom the project sponsor or operator to implement such measures, as requiredby Subsection A of 20.2.99.148NMAC. (5) CO and PMlO hot-spot analyses are not required to consider construction-related activitieswhich cause temporary increases in emissions. Each sitewhich is affectedby construction- related activities shall be considered separately, using established "Guideline" methods. Temporary increases are defined as those which occur only during the constructionphase and last five years or less at any individual site. [12/14/94; 11/23/98; 20.2.99.148 NMAC 

### - Rn, 20 NMAC 2.99.148, 10131/02;20.2.99.148 NMAC 

## - Rn, 20.2.99.146, 10/15/05] [%MA@&#] 20.2.99.149 USING 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 

## [-I 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 implementationplan explicitly quantifies the amount by which motor vehicle emissions could be higher while still allowing a demonstrationof compliancewith the milestone, attainment, or maintenance requirement and explicitly states an intent that some or all of this additional amount should be availableto the MPO (or 

### [the l4MSKB]NMDOT in the absence of an MPO), and the US DOT, in the emission budget for conformitypurposes, neither the MPO (or [&&MSKB] 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

20.2.99NMACsubmissions) which demonstrate that after implementation ofcontrol measures in the implementationplan: (1) emissions fiom all sources will be less than the total emissions that would be consistent with a required demonstration of an emissions reduction milestone; (2) either emissions fiom all sourceswill result in achieving attainment prior to the attainment deadline, and/or ambient concentrationsin the attainmentdeadline year will be lower than needed to demonstrate attainment; or (3) emissionswill be lower than neededto provide for continued maintenance.



### . . 

## il A conformity demonstration shallnot trade emissions among budgets which the SIP (or implementation plan submission) allocates for differentpollutants or precursors, or among budgets allocated to motor vehicles and other sources, unless the implementation plan establishes appropriate mechanisms for such trades. [BIG. Ifthe applicable SIP (or implementation plan submission) estimates future emissionsby geographic subareaof the nonattainment area, the MPO (or [-I NMDOT in the absence of an MPO), and the US DOT are not required to consider this to establish subareabudgets, unless the SIP (or implementation plan submission) explicitly indicatesan intent to create such subarea budgets for the purposes of conformity. [BID. If a nonattainment area includesmore than one MPO, the applicable SIP may establishmotor vehicle emissions budgets for each MPO. Otherwise, the MPOs shall collectively make a conformity determination for the entire nonattainment area. [12/14/94; 11/23/98;20.2.99.149NMAC 

## - Rn, 20 NMAC 2.99.149, 1013 1/02; 20.2.99.149 NMAC 

## - Rn, 20.2.99.147NMAC & A, 10115/05] [2MA%l4] 20.2.99.150 ENFORCEABILITY OFDESIGN CONCEPT AND SCOPE AND PROJECTLEVEL 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 fiom the project sponsorandlor operator written commitments to implement in the construction of the project and operationofthe resulting facility or serviceany project-level mitigation or control measures which are identified as conditionsfor NEPA process completion with respect to local PMlO or CO impacts. Before a conformity determinationis made, written contractual commitments must also be obtained for project-level mitigationor control measures which are conditions for making conformity determinationsfor a transportation plan or TIP and included in the project design conceptand scope which is used in the regional emissions analysisrequired by 20.2.99.137 NMAC and 20.2.99.138 NMAC or used in the project-levelhot-spot analysisrequired by 20.2.99.135 NMAC. B. Project sponsorsvoluntarily committingto mitigation measures to facilitate positive conformity determinations shall provide written contractual commitments and must comply with the obligations of such commitments. C. Written contractual commitmentsto mitigation or control measures shallbe obtained prior to a positive conformity determination, and project sponsorsmust comply with such commitments. D. Ifthe MPO or project sponsor believes the mitigation or control measure is no longernecessary for conformity, the project sponsor or operatormay be relieved ofits obligationto implementthe mitigation or control measure if it can demonstrate that the applicablehot-spot requirements of20.2.99.1 35 NMAC, emission budget requirements of20.2.99.137NMAC, and [-I interim emissions requirements of 20.2.99.138 NMAC are satisfiedwithout the mitigation or control measure, and so notifies the agencies involved in the interagency consultation process required under 20.2.99.116 NMAC through 20.2.99.124 NMAC. The MPO (or [&kWM%W] NMDOT in the absence of an MPO) and US DOT must find that the transportationplan and TIP still satisfy the applicable requirements of 20.2.99.137NMAC and 20.2.99.138NMAC and that the project still satisfiesthe requirementsof 20.2.99.135NMAC andtherefore that the conformity determinations for the transportation plan, TIP, and project are still valid. This finding is subjecttothe applicable public consultation requirements in 20.2.99.124 NMAC for conformitydeterminations for projects. [12/14/94; 11/23/98; 20.2.99.150 NMAC 

## - Rn, 20NMAC 2.99.150, 10/31/02;20.2.99.150 NMAC 

## - Rn, 20.2.99.148 NMAC & A, 10115/05]

20.2.99 NMAC[2W&M!l] 20.2.99.151 EXEMPTIONS. A. Exempt projects. Notwithstanding the other requirements of this part, highway and transit projects ofthe types listed in Table 2 of this section are exemptfrom the requirement to determine conformity. Suchprojects may proceed toward implementation even in the absence of a conforming transportation plan and TIP. A particular action ofthe type listed in Table 2 (ofthis section)is not exempt ifthe MPO in consultation with other agencies (e.g. the department,see Subsection C of 20.2.99.120NMAC, the US EPA, and the FHWA (in the case of a highwayproject) or the FTA (in the case of a transit project)) concur that it has potentially adverse emissions impacts for any reason. 

## [-I NMDOT and the MPO, 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) hazard eliminationprogram; (c) safer non-federal-aid system roads; (d) shoulder improvements; (e) increasing sight distance; (f) safety improvement program; (g) traffic control devices and operating assistanceother than signalization projects; 

### (h) railroadhighway crossingwarning devices; (i) guardrails, median barriers, crash cushions; Cj) pavement resurfacing or rehabilitation; (k) pavement marking demonstration; (I) emergency relief (23 U.S.C. 125); 

### (rn) fencing; (n) skid treatments; (0) safety roadside rest areas; (p) 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 oftransit vehicles (In PMlO 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 operatingequipment for vehicles (e.g., radios, fareboxes, lifts, etc.); (f) construction or renovation ofpower, signal,and communications systems; (g) construction of small passenger shelters and information kiosks; 

### (h) reconstructionor renovation oftransit buildings and structures (e.g., rail or bus buildings, storage and maintenance facilities, stations, terminals, and ancillary structures); (i) rehabilitationor reconstruction of track structures, track, and trackbed in existingrights-ofway; (j) purchase ofnew buses and rail cars to replace existing vehicles or for minor expansions of the fleet (In PMlO nonattainment or maintenance areas, such projects are exempt only ifprojects are in compliance with controlmeasures in the SIP.); (k) construction of new bus or rail storagelmaintenancefacilities categorically excluded in 23 CFR 771. (3) Air quality: (a) continuation of ride-sharing and van-pooling promotion activities at current levels; (b) bicycle and pedestrianfacilities. (4) Other: (a) specific activities which do not involve or lead directly to construction, such as: (i) planning and technical studies;

20.2.99NMAC(ii) grants for training andresearch programs; (iii) planning activitiesconducted pursuantto titles 23 and 49 U.S.C.; or (iv) federal-aid systemsrevisions; (b) engineeringto assess social, economic,and environmental effects ofthe proposed action or alternatives to that action; 

### (c) noise attenuation; (d) emergency or hardshipadvance land acquisitions (23 CFR [XI 

### 710 [204@] 

### 503); (e) acquisition of sceniceasements; 

## (0 platings, landscaping, etc.; (g) sign removal; (h) directional and informational signs; (i) transportationenhancement activities (except rehabilitation and operation of historic transportation buildings, structures, or facilities); (j) repair of damage causedby natural disasters, civil unrest, or terrorist acts, except projects involving substantial functional, locational, or capacity changes. B. Projects exempt fiom regional emissions analyses. Notwithstanding the other requirements of this part, highway and transit projects ofthe types listed in Table 3 ofthis section are exempt fiom regional emissions analysisrequirements. The local effects ofthese projects with respectto CO or PMlO concentrationsmust be considered to determineif a hot-spot analysisis requiredprior to making a project-level conformity determination. These projects may then proceed to the project developmentprocess even in the absence of a conforming transportation plan and TIP. A particular action ofthe type listed in Table 3 (ofthis section) is not exempt fiom 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) orthe FTA (in the case ofa transitproject) concur that it has potentialregional impacts for any reason. Table 3 follows. Table 3. Projects Exempt from Regional Emissions Analyses: (1) intersection channelization projects; (2) intersection signalizationprojects 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 transferpoints. [12114194; 11/23/98;20.2.99.151NMAC 

### - Rn, 20 NMAC 2.99.151, 1013 1/02;20.2.99.151 NMAC 

### - Rn, 20.2.99.149NMAC & A, 10115/05]
[aeiai99,M8] 20.2.99.152 

### TRAFFIC SIGNAL SYNCHRONIZATIONPROJECTS. Traffic signal synchronizationprojects may be approved, funded, and implemented without satisfyingthe requirementsofthis part. However, all subsequentregional emissionsanalyses requiredby 20.2.99.137NMAC and 20.2.99.138 NMAC for transportation plans, TIPS,or projectsnot fiom a conformingplan and TIPmust include such regionally significant traffic signal synchronization projects. [20.2.99.152NMAC 

## - Rn,20.2.99.150NMAC, 10115/05]
20.2.99.153 

### SPECIALEXEMPTIONS FROM CONFORMITY REOUIREMENTS FOR PILOT PROGRAM AREAS. EPA and NMDOT may exempt no more than six areas for no more than three years fiom certain requirements of this subpart ifthese areas are selectedto participate in a conformitvpilot Program and have developed alternative requirements that have been a~proved by EPA as an implementationplan revision in accordance with 40 CFR part 5 1.390. For the duration ofthe pilot program, areas selectedto participate in the pilot program must comply with the conformity requirements ofthe pilot area's implementation plan revision for 65 1.390 ofthis chapter and all other requirements in 40 CFR parts 51 and 93 that are not coveredby the pilot area's implementationplan revision for 40 CFR part 51.390.The alternative conformitv requirementsin coniunction with any applicable state and/or federal conformitv requirements must be proposed to fulfill all ofthe requirementsof and achieve results equivalent to or better than Section 176(c)ofthe Clean Air Act. After the three-year duration ofthe pilot program has expired, areas will againbe subiect to all of the requirements of this subpart and 40 CFR part 5 1. subpart T, and/orto the requirementsof any implementation plan revision that was previously approvedby EPA in accordance with 40 CFR part 51.390. [20.2.99.153NMAC 

### - N, 10/15/05]

20.2.99 NMAC[2O&W&%] 20.2.99.154 SAVINGS PROVISION. The federal conformity rules under 40 CFRpart 93 subpartA, in addition to any existing applicable state requirements, establishthe 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 (ora portionthereofl the approved (or approved portion ofthe) department's criteria and procedureswould govern conformity determinations and the federal conformity regulations contained in 40 CFRpart 93 would apply only for the portion, if 

### any, ofthe department's conformity provisions that is not approvedby EPA. In addition, any previously applicable SIP requirements relating to conformity remain enforceableuntil the department revises its SIPto specificallyremove them and that revision is approved by EPA. [20.2.99.154NMAC 

## - Rn,20.2.99.15 1NMAC, 10/15/05]

20.2.99 NMACBILL RICHARDSON Governor 

## State 

## ofNew Mexico 

## ENClRO~ENT DEPARTMENT Air Quality

### Bureau

2048 Galisteo St. Santa 

### Fe, 

## NM 87505 Phone 

### (505) 827-1494



## Fax (505) 

### 827-1523 www.nmenv.state.nrn

### us RON CURRY Secretay
DERRITH WATCHMAN-MOORE Deputy Secretary



### MEMORANDUM

TO: Barbara Claire, Board Administrator .,,' 

# ./<. ....L,, FROM: SandraEly, Air Quality Bureau Chief 

# <->


# .. 

# 7'
DATE: March 16,2005 /A 

### SUBJECT: 

### Request for placement on EIB meeting Agenda for April 5,2005

The 

### Air Quality Bureau requests placement of

### the followingitems on the EIB April 5,2005 meeting agenda:
TheNew Mexico Environment Department's request for a hearing for consideration of revisions of one air quality regulation:
20.2.99 NMAC - 

### Confol-nzity to the State Implementation Plan of Transportation Plans, Programs, and Projects

### STATE OF NEW 

### MEXICO ENVIRONMENTALIMPROVEMENT

PETITION FOR 

### HEARJXG ON PROPOSEDAMEhJDMENTS TO 20.2.99NMAC 

### CONFORMITY TO THESTATEIMPLEMENTATION 

### PLAN OF TRANSPORTATION PLANS, PROGRAMS,Ah?DPROJECTS EIB 05-03C?J

NEW 

### MEXICO ENVIRONMENTDEPARTMENT'S NOTICE OFINTENT TO PRESENT TECHNICAL TESTIMONY


### TheEnvironmental Protection Division ofthe New Mexico Environment Department (Division) submits this Notice ofIntent to Present Technical Testimony in support ofthe abovereferenced petition at the public hearing on July 5, 2005.
1. 

### Theperson for whom the witnesses will testify.
TheDivision.
2. Thename and qualifications of each techcalwitness.

Gad Cooke. Ms. Cookehas been an Environmental Analyst forthe Control Strategy
Section ofthe Division's

## Air Quality Bureau for six years. Beforejoining the Bureau, Ms. Cooke was employed as an environmental planner for an environmental consulting 

## firmin Albuquerque. Sheholds a Bachelor Degree 

### in Environmental Design fiom Texas A&M University and a Master Degreein Urban and RegionalPlanning, with an emphasisin Environmental Planning from Virginia Polytechnic Institute and State University.Ms. Cookehas extensive experience

### in the development of StateImplementation Plans, regulatory development,
and issues related to the status ofnonattainmentfor areasthat have exceededtheNational Ambient Air Quality Standards.

NOTICE OF 

### INTENT-PAGE 1

### of 3

### 3. 

### Whetherthe Division supvorts or opposes the proposed revisions.
TheDivision supportstheproposed revisions.
4. Summary oftestimony.
Ms. Cookewill offertestimony explainingthe 

### importanceoftheproposed
CONFORMITYTO THE STATE IMPLEMENTATIONPLAN OF TRANSPORTATION PLANS, PROGRAMS,

## AND PROJECTS regulation attached as Exhibit 2. TheDivision
estimates that Ms. Cooke's testimonywill take onehour.
5. 

### A list and description of anticipated exhibits.
EXHIBITNUMBER TITLE OF EXHIBIT
NMED Exhibit 1 NMED Exhibit 2 NMED Ehbit3 

### NMED Exhibit 4 WED Exhibit 5 

### NMED Exhibit 6 Resume of Gail Cooke Summaryof Technical Testimonyof Gail Cooke Proposed rule changes for 20.2.99 NMAC Summaryof40 CFR Part 93 for 8-6-02 Summaryof 40 CFR Part 93 for 7-1-04 Notice ofPublicMeeting and Hearing


### 6. Reservation of Rights.
This Notice of Intent to Present Technical Testimonyis based on theDivision'spetition.
The Division reserves theright to call any person to testify and to present any exhibit in response to another notice ofintent orpublic comment filed 

### in this matter or to any testimonyor exhibit
offered at thepublic hearing. The Division also reservestheright to call anyperson as arebuttal
witness and to present any 

### exhibitin supportthereof.

Respectfully submitted,

NOTICE OF INTENT -

### PAGE 2 of 3'

### Office of General Counsel New Mexico Environment Department 1190 

### South St.Francis Drive SantaFe, New Mexico 87502-61 10 

### Telephone (505) 827-2054 

### Facsimile (505) 827-1628



### NOTICE OF INTENT -

### PAGE 3 

### of 3

### NMED '~xhibit 1 

# GaiI 

# F. Cooke

Master of Urban and Regional Planning, Concentration: Environmental Planning, Erginia Polytechnic Institute andState University(WI&SU),Blacksburg, Virginia,1998 Major Project: 

### The ImplementationofVirginia Erosion And Sediment Control Laws and Regulations. Bachelor of Environmental Design, Texas A&M University, College Station, Texas, 1995 

### Other areas of study includeEnvironmental Science, Soil Science, and Civil Engineering.

State ofNew Mexico Environment Department,Air Quality Bureau 1999-Present 

### Environmental AnalystPlanner 

## - Public outreach, includingpreparingoutreach material for the general public; preparation of emission inventoryupdates and maintenanceplans for the State Implementation Plan submittals; development of local initiative plans to help reduce criteria air pollutants; 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 and federal regulations, including the Natural Events Policy Act.

Grant CountyNonattainmenrYRedesignation 

### Acted as the lead 

### in the redesignationofthe Grant County SulfurDioxideNonattainment area. At the request ofthe EnvironmentalProtection Agency, an analysis was conductedto redesignate the Air Quality Control Region 

### 012:Grant County,New Mexico SO2nonattainment area to attainmentlmaintenancestatus and amaintenanceplan was prepared. In February of 2003, a redesignation request and maintenanceplan for the Grant Countynonattainment areawere submitted to EPA for their review and approval. Both the redesignation request and maintenanceplan for the Grant County nonattainmentareawere approved in September of 2003.
SunlandPark NonattainmenrYRedesignation 

### Currently acting as the lead forthe activities related to the SunlandPark Ozonenonattainment area. 

### In 1995,the Environmental Protection Agency declared a 42 square-mileregion 

## in the southeast comer of Doiia Ana County on theborder ofTexas and Mexico as a marginal nonattainment area forthe 1 

### -hour ozone standard.Thenonattainment area includes the City of Sunland Park, Santa Teresa, and La Union, New Mexico. The Air 

### QualityBureau is currently 

### in the process of conducting an analysisto redesignate Air Quality Control Region 153: SunlandPark, New Mexico Ozone nonattainment area to attainment/maintenancestatus. Responsibilities include developmentof emission inventories;plan development; and act as air 

### quality contract for transportationconformity related issues.

### NMED Efibit2



### SUMMARY OF TECHINICAL TESTIMONY OF 

### GAIL COOKE, AIR QUALITY BUREAU, NEW MEXICO ENVIRONMENT DEPARTMENT

I. INTRODUCTION
Madame Chair and Members ofthe Board, 

### I amhere to present the Division's proposed amendments to 20.2.99 NMAC - 

### Conformity to the State ImplementationPlan of Transportation Plans, Programs, andProjects. NMED Exhibit 3 reflects the Divisions proposed amendmentsin current NMAC format. Theproposed amendments are shownin 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.
Theproposed revisions to Part 99 are in response to mandatory amendments to the federal rule 40 CFR Part 93 

### -Determining Confor-mityofFederal Actions to State orFederal ImplemerztationPlans, which 

### I will be referred to as Part 93 fiom now on. The Environmental Protection Agency (EPA) has in the past 3 years revised the federal rule twice for transportation conformity. As pursuant Clean

### Air Act Section 1 1 O(a)(l), it is required that each state, after - 

### reasonablenotice and public hearings, adopt and submit to EPA a revised or new plan within thee(3) years afterthepromulgation of a national ambient air quality standard (NAAQS) which provides for implementation, maintenance, and enforcement of the NAAQS in each air quality control region within a State. TheEPA has requested that the proposed revisions to Part 99be adoptedby September 30,2005.
The first of these amendments to the federal Transportation ConformityRule was published 

### in the Federal Register on August 6,2002 (67 FR 50808)(Exhibit4). These changes includeminor revisions to the 18-month requirement for initial State Implementation Plan submissionsand the addition of a grace period for newly designated nonattainment areas. The second phase of the amendments made to the Federal Transportation ConformityRule was published in the Federal Register on July 1,2004(68 FR 40003) (Exhibit 5). The changes to the federal rule include amendments for thenew 8-hour ozone and Particulate Matter 2.5 microns in sizeNAAQS and a few miscellaneous revisions to clarify the existing regulation and improve implementation.



### 11. HISTORY The concept of transportation conformity was introduced in the Clean Air Act of 1977, which included a provision to ensure that transportation projects conform to the State Implementation Plan for meetingthe air quality standards. Conformity requirements were made substantiallymorerigorous in the Clean Air Act Amendments of 1990,and the federal transportation conformity regulation (Part 93) that details implementation ofthe new requirements was issued in

### November 1993. Along with the adoption ofPart 93, the individual

COOKE TESTIMOhrY

## - PAGE 1

### NNIED Exhibit 2



### stateswere also required to develop a regulationto implement transportation conformity. Part 99 was adopted

## in December 1994. The purposes ofthe federal and stateregulations were to detail theprocess for transportation agenciesto demonstrateand ensureemission reductions from transportation sources of 

## airpollution. Transportationconformity only applies to areasthat have violated the NAAQS, or what is called "nonattainmentyy for the six criteriapollutants: carbonmonoxide, sulfur dioxide, oxides of nitrogen,particulatematter, ozone, and lead. 

### To ensures that transportation activities do not worsen air quality 

### in nonattainment areas or interferewith StateLmplementationPlans, which set therequirements for meeting the U.S. Environmental Protection Agency (EPA) standardsfor air 

### quality, transportationemission reductions area often required from mobile sources. According to the CAA, transportation plans, programs, and projects cannot:

createnew violations oftheNAAQS; increasethe frequency or severityof existing violations ofthe standards; or delay attainment ofthe standards.



### LII. PROPOSED CHANGES TO PART 99 A. August 6,2002 Amendments


### 1. Introduction
TheAugust 6,2002 amendments to the federal transportation conformity rule was to respond, inpart, to theimpact of a decisionmade on March 

### 2, 1999,by the U.S. Court of Appeals for the District of ColumbiaCircuitthat affected several provisions ofthe 1997 rulemaking (Environmental Defense Fund v. EPA, et al., 167F. 3d 64 1, D.C. Cir. 1999). Specifically,the amendments address the indirectimpactofthis court decisionon oneprovision ofthe conformityrule (Sec. 93.104(e)),theprovision that requires conformityto be redetermined within 18months of an initial stateimplementation plan submission. The amendments also incorporatea one-year grace period for newly designated nonattainment areas.
2. 

### Redetermination Within 

### 18 Months The federallymandated amendment changesthe starting point ofthe requirement to determine conformityafter an initial state implementationplan submissionto the EPA. This amendment revises Part 99, Section 

### 115--FrequencyofConformity Determinations -

### Triggers for TransportationPlan and 

### TIP Conformity Determinations. With this amended language, conformity must be determined within 18

### months of the effective date of the FederalRegister notice announcingthe EPAYs findingthat the emissionbudgets in 

### an initial state implementation plan submission are'adequate.This amendment changesthe transportation conformity rule that requires conformity to be determinedwithin 18months of the submissiondate for an initial state implementationplan.

COOKE TESTIMONY 

### - PAGE 2

### NMED Exhibit 2

The effect ofthis revision isthat areaswill have the full 18months to satisfythe conformityrequirement for initial submissions once adequate emission budgets havebecome available for conformity. The EPA promulgated this minor rule revision to provide a reasonable response to an 

### indirect impact ofthe March 2, 1999, court decision that requires the EPA to first find the budgets from an initial stateimplementation plan submission adequate before such budgets canbe used 

### in a transportation conformity determination. This revision also changed the starting point for the18-month clocks that are currently running for areas with initial state implementation plan submissions, so that these areas are given the full 18months to determine conformityto their initial state implementation plans. 

### In other words, 

### in areas where a state implementationplan has been submitted and EPA is currently reviewing it for adequacy, the 18-month clock requiredby Sec. 115 will not start until the effective date ofthe EPA's adequacy finding. Ifthe EPA is currentlyreviewing the adequacy of a submitted stateimplementationplan, and subsequentlyfind it inadequate, the 18-month clock will not start because this rule revision requires the EPA to first find budgets in initial state implementation plan submissions adequate before Sec. 115 applies. Finally, for areas that have submitted initial state implementation plans that the EPA has already found adequate and to whch conformity has not yet been determined,hs final rule will restart the 18-month clock from the effective date ofthe EPA's positive adequacy finding.
3. One-Year Grace Period


### The federally mandated amendmentto Part 99 revises Section 109 -

### Applicability 

### to providing a one-year conformity grace period to newly designated nonattainrnent areas for a given air quality standard. Thsrevision is needed to make transportation conformityrules consistent with an October 27,2000, amendmentto the Clean Air Act (42 U.S.C. 7506(c)(6)). Specifically, this amendment provides areas, that for the first time area designated nonattainment for a given air quality standard,with a one-year graceperiod before the conformity regulation applies with respect to that standard. This grace period be,oins upon the effective date ofthe EPA's published notice in the Federal Register that designates an area as nonattainment.


### B. July 

### 1,2004Amendments


### TheDivision isproposing multiple amendmentsto Part 99 in response to federally mandated revisions to the federal transportation rule (Part 93). Themain purpose of these revisions is to incorporate clear guidance andprocedures for implementing conformity for the new ozone and PM2.5 NAAQSs.
1. Introduction

COOKE TESTIMONY 

### - PAGE 3

### NED Exhibit 2

The EPA revised the federaltransportationconformityrule (Part 93) 

### in responseto two proposals that were published a year and half ago. On November 5,2003, EPA published a proposal to address conformity requirementsunderthenew ozone and PM2.5air 

### quality standards (68 FR 62690). On June 30,2003, EPA proposed to incorporate existingfederal guidance into the conformity rule consistentwith a March 2, 1999, U.S. Circuit Court ofAppeals decision (68 FR38974). EPA combinedboth of these rulemaking efforts into one final rule to provide a completepackage to all existingand new nonattainmentand maintenanceareas.
The frnal federal transportation conformityrule (Part 93) describes when conformityfirst applies in new ozone and PMz.5 nonattainment areas.The CleanAir 

### Act and transportation conformityrule allow a one-yeargraceperiod before conformity applies forthe new standards, and this graceperiod begins upon the effectivedate ofEPA's nonattainment designation for either new standard.
The federal rule also incorporates existingEPA and Department ofTransportation (DOT) guidancefor a March 2, 1999, decision from the U.S. Court ofAppeals for the District of Columbia Circuit. In 

### Environmental Defense Fund v. EPA, et al., 167F. 3d 641, D.C. Cir. 1999, the U.S. Court ofAppeals ruled againstEPA on severalprovisions ofthe transportation conformity regulations. Some ofthe significantrule revision resulting from the court decision include the procedures for advancinghighway and transit projects during a conformity lapse and administrative process for determining whether themotor vehicle emissionsbudgets in SIP submissions are appropriateto use in conformitydeterminations.The EPA also made several other changesto clarify the conformityregulations and improveimplementation.
2. ProposedAmendments to 20.2.99 NMAC 

### The followingtable lists the Division's proposed regulatory amendments. The table references the state regulation (Part 99), as well as the federal rule (Part 93).
TYPE 

### OF

AREA

8-Hour Ozone National Ambient

### Air Quality Standard ISSUE ADDRESSED

### IN 

### FINAL RULE

Conformity Grace Period- This one-year conformity graceperiod isprovided by Clean Air Act section 176(c)(6) and Sec. 93.102(d) ofthe conformityregulation.

Baseline Year Test

## - Adds the following tests to the conformityrule for 8-hour ozonenonattainment areas: The "less-than-2002 emissions" test, andThe "no-greater-than-2002 emissions" test. Under these interim emissions tests, conformity would be demonstratedifthe emissionsfrom the proposed transportation system are either 

### PART 93 PART 99 

### NEW MEXICO

I 

# 1 Sec. 119(b) SECTION



### Sec. 138(B) SECTION

COOKE TESTIMONY

### - PAGE 4 

### Sec. 102(d) Sec. 109(D)

### NMED Exhibit 2



### TYPE 

### OF

AREA 

# I vehicle emissions in a given area. 

# 1 i 

# I I I 

### SECTION less than or no greater than 2002 motor 

## /

Build,No-Build Test (Lower classifications)-The federalrule is amended to createthe "build-no-greaterthan-no-build"test, where conformityis demonstrated if emissionsfrom the proposed transportation system ("build" or "action" scenario) are less than or equal to emissions fromthe existing transportation system ("no-build" or "baseline" scenario).

Thebuild-no-greater-than-no-build test is available to the following subset of new and existing areas: 8-hour ozone areas of marginal classification,and

= 8-hour ozone areas designated nonattainment under subpart 1ofpart 

### D oftitle 1of the Clean Air Act ("subpart 1areas"). 

### SECTION

Regional Conformity Tests Moderate and Above 

### Classifications (Higher Classifications)

### - Ozone areas ofhigher nonattainment classifications must meet both the build-less-than-no-build and less-than-baseline year tests to demonstrateconformity in the period before SIP budgets are available. This provision will affect moderate and above I-hour and 8-hour ozone areas. This requirementis identical to the requirementofthe existing conformity rule for these areas, and was the first of three options proposed for regional emissions analysesbefore adequateor approved SIPbudgets are established. 

### PART 99 

### NEW 

### MEXICO REGULATORY ISSUE ADDRESSED

### IN FmTAL RULE

Regional Conformity Tests (Areas Without 1 -hour Ozone Budget) 

### - These 8-hour ozone areas either were never designatednonattainment under the 1 

### - hour ozone standard or were I-hour ozone nonattainment areas that never submitteda control strategy SIP or maintenanceplan with approved or adequatebudgets. A regional emissions analysis is the part of a coaformity 

### PART 93 FEDER4L REGULATORY

Sec. 119@)(2); Sec. 1 1 9(g)(2)

Sec. 119@)(1)

Sec. 109(d) Sec. 138(B)(2); Sec. 138(G)(2)

Sec. 128(D)

COOKE

### TESTKMONY 

### - PAGE 5

### NMED Exhibit 2

determination that assesses whether the emissions produced by transportation activities are consistent with state, local, and federalair quality goals. 

### TYPE OF

AREA

RegionalConformityTests (Areas With 1-hour OzoneBudget

## - This section covershow regional emissions analyses must be done in 8-hour ozone areas with an existing 1 -hour ozone SIPthat covers either part or all of the 8-hour ozone nonattainment area. The regulatorytext in Sec. 128 (e) ofPart 

### 99 provides a general overview of when thebudget test -andinterim emissions tests apply in 8- hour ozone nonattainment areas with adequateor approved 1 -hour ozone SIP budgets.

Delinitions 

### - Clarify the conformity rule's dehitions for "control strategy implementationplanrevision," "milestone," ''donut areas," "isolated rural nonattainment and maintenance areas," 1-hournonattainment area, and 8- hour nonattainment area in Sec. 7 ofPart 

### 99. The clarifications to these dehitions do not impose any new requirements on nonattainment and maintenance areas; these rulerevisions simply clanfyEPA's original intent and current implementation ofthe existing conformity rule.
Areas With InsignificantMotor Vehicle Emissions -This sectionappliesto nonattainment and maintenance areas where EPAfmds that the SIP'Smotor vehicle emissions for a pollutant or precursor for a given standard are an insignificantcontributor to an area's regional 

### air qualityproblem. This provisionwaives the regional emissions analysis for an insignificantpollutant or precursorin these areasupon the effectivedate ofEPA's adequacyfinding or approval of such a SIP. Sec. 128(K) also establishesthe minimum criteria that are necessary to demonstratethat motor vehicle emissions are insigdicant 

### PART 

### 99 R'EW 

### MEXICO REGULATORY SECTION ISSUE ADDRESSED 

### IN FINAL RULE

Sec. 101 

### PART 93 

### FEDERAL REGULATORY SECTION

Sec.1090; Sec.l2l(c) Sec. 

### 7

Sec. 128(K); Sec. 140(C) 

# -I---

COOKE TESTIMORTY

## - PAGE 

### 6

### NMED Exhibit 2



### TYPE OF 

### ISSUE ADDRESSED 

## IN PART 93



### AREA FINAL 

### RULE FEDERAL NEW MEXICO 

### REGULATORY REGULATORY SECTION
Transportationplan and modeling requirements (Higher Classifications)

### - Provides atwo-year grace period in Sec. 143 of

### Part99 before the more advanced transportationmodelingrequirements in Sec. 142 of

### Part99 are required in the followingtypes of nonattainment areas orportions of such areas that are not alreadyrequiredto meet these provisions: Ozone areas that have anurbanized areapopulation over 200,000 and are reclassified to a serious or higher classification(e.g., such a moderate ozone areathat is reclassified to serious); Seriousand above ozone areas in which the urbanized area population increasesto over 200,000;and Newly designated ozone nonattainment areas that are classified as seriousor above in which the urbanized areapopulationsover 200,000. These revisions expand the types of areas coveredby the rule's grace period for transportationplan content requirements. Ozone areas that have anurbanized area population over 200,000 that are reclassifiedto a serious orhigher classification(e.g., such a moderate ozone areathat is reclassified to serious), Seriousand above ozone areas in which the urbanized area population increasesto over 200,000; and Newly designated ozone nonattainment areas that are classified as serious or above in which the urbanized areapopulation is over 200,000. Clarifyingthat both Sec. Sec. 125(B)of 

### Part 99 and 93.143 of

### Part99 that the two-year grace periods begins upon either the: Effective date ofEPA's action that reclassifiesan ozone area with an urbanized areapopulation over 200,000, to a serious orhigher classification, Officialnotice by the Census Bureau that the urbanized areapopulation is over 200,000, or 

### Sec. 106(b); Sec. 122(c) Sec. 125(B); Sec. 143

COOKE 

### TESTIMONY

## - PAGE 7

### NMED Exhibit 2



### TYPE OF



### AREA

initiallydesignates an area as a serious or above ozonenonattainment area. Effective date ofEPA's actionthat

Non-Federal Projects (For Isolated Rural Areas Only) - Thsis aminor clarificationto Sec. 140@)(1) ofPart 99 that addressesthe conformity requirements for non-federal projects in isolatedrural nonattainment and maintenance areas. Specifically,the hal rulerequires a regionally si,gnificant non-federal project to be included in the regional emissions analysis of the most recent conformity determination "that reflects" theportion of the statewide transportationplan and statewide transportation improvementprogram (STP)which includes projectsplanned for the isolatedrural nonattainment or maintenance area before the projects can be approved.

I 

### PM2.5 - 

# / Applicability -This revision includes 

### PART 

### 99 NEW MEXICO REGULATORY 

# , ISSUE ADDRESSED 

### IN 

## FINAL RULE
SECTION PART 

### 93 FEDERAL REGULATORY SECTION

Standard National Ambient 

### Air Quality Conformity Grace Period 

### - Clean Air Act section 176(c)(6) and Sec. 109(D)of Part 99 ofthe conformityregulation provide this one-year conformity grace period. This final rule addsPM2,* to Sec. log@) of the conformity rule even thoughthe graceperiod is already availableto all newly designated nonattainment areas as a matter of law. PM2.5 as a criteriapollutant that is regulated under Part 99 for transportation conformity purposes 

### Sec. 121(b)(l)

COOKE TESTlMONY

### - PAGE 8 BaselineYear Test 

### - Adds the following tests to the conformity rule for PM2.5 nonattainment areas: The "less-than-2002 emissions" test, andThe "no-greater-than-2002 emissions" test. Under these interim emissions tests, conformity would be demonstrated if the emissions f?om the proposed transportation system are eitherless than 

### S

### ec. 1 1 

### 9(b) Sec. 138(B)

### NMED Ehbit

### 2

BuildNo-Build Test (Lower classifications) - As with the 8-hour
ozone standard,EPA is revising the buildno-build test for certain existing and new nonattaininent areas. Specifically,the final rule amends Sec. 138 to create the "build-no-greater-thanno-build" test, where conformityis demonstratedif emissions from the proposed transportation system ("build" or "action" scenario) are less than or - equal to emissions fromthe existing transportation system ("no-build" or "baseline" scenario. The build-nogreater-than-no-buildtest is available to All PMZ.~ areas. Regional Conformity Testsin PM2.5 Areas 

### - EPA requires that the budget test be used to complete a regional emissions analysis once a PMZ.5 

### SIP is submitted with budget(s) that EPA has found adequate or approved. PMZ.5 nonattainrnentareas must meet one of the following interim emissions tests for conformity determinationsconducted before adequate or approved PMZ.5 SIP budgets are established: The build-no-greater-than-no-build test, or The no-greater-than-2002 emissions test. 

### PART 

### 99 NEW MEXICO REGULATORY SECTION PART 93 

### FEDERAL REGULATORY SECTION 

### TYPE OF

AREA

Sec. 109(i) 

### ISSUE ADDRESSED 

### IN FINAL 

### RULE

or no greater than 2002 motor vehicle emissions in a given area. 1. 

### Sec. 119(e); 

# 1 Sec. 119(g)2

L I I 

### I 

### ( Re-entrainedRoad Dust in PM2.5 

## 1 Sec. 102fiY3): Sec.138(E); Sec. 138(G)(2)

. - -- 

### ,-,,- ,7 Regional Emissions Analyses --keentrainedroad dust will only be included 

# ( Sec. 119(f) in regional emissions analyses ifthe EPA Regional Administrator or state air quality agency determines that reentrained road dust is a significant contributor to the PMZ.5 regional air quality problem. In other words, PM2.5 areas can presume that re-entrainedroad dust is not a significant contributor and not include road dust in PMZ.5 transportation conformity analyses prior to the SI??, unless EPA or the state hds 

### Sec. 128(I)

COOKE TESTIMOhT

## - PAGE 9

### NMED Exhibit 

### 2

TYPE OF

AREA

dust is granularmaterial released into the atmosphere as a result of motor vehicle activity onpaved and unpaved roads. 

# 1 SECTION

Construction-RelatedFugitiveDust in 

### PM2.5 Regional Emissions Analyses 

### - Construction-related fugitivedust from highway or transit projects are included in regional emissions analyses for 

### PM2.5 nonattainment and maintenance areas only if the SIP iden~es construction dust as a significant contributor to the regional air qualityproblem. Construction-reIatedhgitive dustis granular materialreleased into the atmosphere during construction. Construction-related dust emissions would not be included in any 

### PM2.5 conformity analyses before adequate or approved 

### PM2.5 SIP budgets are established. 

### ISSITE ADDRESSED 

## IN FINAL 

### RULE
SECTION road dust significant. Re-entrainedroad 

## 1

Sec. 

### 146 

### PART 93 

### FEDERAL

, 

### PART 99 

### NEW MEXICO

Compliance With

### PM2,5 SIP Control Measures

## - The rule requires that Federal HighwayAdministration (mA) and Federal TransportationAdministration (FTA) projects 

### in PM2.5 nonattainment and maintenance areas comply with the applicable SIP'S 

### PM2.5 control measures, when such measures exist. Under the 

### fd rule, 

### FHWA and FTA would assure implementationof a required control or mitigationmeasure by obtaining enforceablewritten commitments from the project sponsorandioroperator prior to making a project-level conformity determination.This requirement would be satisfied 

### iftheproject-level conformity determination containsa written commitment fromthe project sponsorto includethe control measures in the hal plans, specifications and estimates for the project. Definitions - Clarify the conformity rule's definitions for "control strategy implementationplan revision," "milestone," "donut areas," "isolated ruralnonattainment and maintenance areas," I-hour nonattainment area, and 8-



### COOKE TESTIMONY

## - PAGE 10 

### REGULATORY 

# , REGULATORY

Sec. 

### 1 

### 17

Sec. 

### 101 Sec. 

### 136

Sec. 

### 7

### NMED Exhibit 2

hour nonattainment area in Sec. 7 of Part 99. The clarificationsto these definitions do not impose any new requirementson nonattainmentand maintenance areas; these rule revisions simply clanfy EPA's original intent and current implementation of the existing conformityrule. 

### TYPE OF

AREA PART 93 

### FEDERAL REGULATORY SECTION ISSUE ADDRESSED IN FINAL RULE PART 

### 99 NEW MEXICO REGULATORY SECTION

Areas With InsignificantMotor Vehicle Emissions - This section applies to nonattainment and maintenance areas where EPA frnds that the SIP'Smotor 

# I.

vehlcle emissions for a pollutant or precursor for a given standard are 

### an insignificant contributorto an area's regional air quality problem. This provision waives the regional emissions analysis for an insignificant pollutant or precursor in these areas upon the effective date of EPA's adequacyfinding or approval of such a SIP. Sec. 128(K)of Part 99 also establishesthe minimum criteriathat are necessaryto demonstrate that motor vehicle emissions are insigrdcant

Non-Federal Projects (ForIsolated Rural Areas Only) - This is a minor clarification to Sec. 140(B)(1) of Part 99 that addresses the conformity requirementsfor non-federal projects in isolatedrural nonattainment and maintenance areas. Specifically, the final rule requires a regionally significant non-federal project to be included inthe regional emissions analysis of the most recent conformity determination "that reflects"the portion ofthe statewide transportation plan and statewide transportation improvement program (STIP) which includes projectsplanned for the isolated rural nonattainment or maintenance areabefore theprojects can be approved. 

### Sec. 109(k); Sec. 121(c) Sec. 128(K); Sec. 140(C)

Sec. 140(B)(1)

COOKE 

### TESTIMONY 

### - PAGE 11 

### 1-Hour 

### Ozone National Ambient Air Build/No-Build Test (Lower classifications) -The federal rule is amended to create the "build-no-greaterthan-no-build" test, where conformityis 

### sec. 1

### 19@)(2); Sec. 1 

### 19(g)(2) sec. 138(B)(2); Sec. 138(G)(2)

### NMED Exhibit 2



### ISSUEADDRESSED IN FINAL RULE

equal to emissionsfrom the existing transportation system ("no-build" or "baseline" scenario).

Thebuild-no-greater-than-no-build test is available to the following subset of new and existing areas: 1 -hour ozone areas ofmarginal and below classifications. 

### QuaIity 

### Standard

Regional ConformityTestsModerate and Above Classifications(Higher Classifications)

## - Ozone areas ofhigher nonattainment classifications must meet both the build-less-than-no-build and less-than-baseline year tests to demonstrate conformityin the period before SIP budgets are available. This provisionwill affect moderate and above 1-hourand 8-hour ozone areas. This requirement is identicalto the requirement of the existing conformity rule for these areas, and was the &st of three optionsproposed forregional emissions analysesbefore adequate or approved SIP budgets are established. 

### PART 93 

### FEDERAL REGULATORY

Dehitions 

### - Clanfy the conformity rule's def~tions for "control strategy implementationplan revision," "milestone," "donut areas," "isolated rural nonattainment and maintenance areas," l'hour nonattainmentarea, and 8- hour nonattainment area in Sec. 7 of Part 

### 99. The clarifications to these definitions do not impose any new requirements on nonattainment and maintenanceareas; these rule revisions simply clarifyEPA's original intent and current implementation ofthe existing conformityrule. 

### PART 

### 99 NEWMEXlCO

# ~
REGULATORY

Sec. 

### 7 SECTION demonstratedifemissionskom the proposed transportationsystem ("build" or "action" scenario) are less than or 

### SECTION

COOKE

### TESTIMONY

## - PAGE 12 Areas With Insignificant Motor Vehicle Emissions 

### -This section applies to nonattainment and maintenance areas where EPA finds that the SIP'Smotor

, vehicle emissions for a pollutant or precursorfor a given standard are 

### an 

### Sec. 

### 109(k); S~C. 121(~) Sec. 128(K); Sec. 140(C)

### hJD Exhibit 2



### TYPE OF

AREA

Limited MaintenancePlans - These revisionsmake the conformityrule consistentwith EPA's existing limited maintenanceplan policies for the 1-hour ozone standard. Therevisions allowsfor any hture limited maintenanceplan policies for other standards to be consideredin the conformity process. 

### In general, a limitedmaintenanceplan policy allows a nonattainmentarea with air qualitythat is significantly below a standard to request redesignation through a more streamlinedmaintenanceplan. 

### ISSUE ADDRESSED 

### IN FINAL RULE

insignificant contributorto an area's regional air qualityproblem. Ths provision waives the regional emissions analysis for an insi,snificantpollutant or precursor in these areasupon the effective date of EPA's adequacy finding or approvalof such a 

### SIP. Sec. 1286) also establishes the minimum criteriathat are necessary to demonstrate that motor vehicle emissions are insignificant.

Transportation plan and modeling requirements (Higher Classifications) - Provides a two-year grace period in Sec. 

# ' 143 ofPart 99 before the more advanced

transportation modelingrequirements in

I Sec. 142ofPart 99 are required in the

following types of nonattainment areas orportions of such areasthat are not alreadyrequired to meet these provisions: Ozone areas that have an urbanized area population over 200,000 and are reclassifiedto a seriousor higher classification(e.g., such a moderate ozone area that is reclassified to serious); Serious and above ozone areas in which the urbanized areapopulation increasesto over 200,000; and Newly designatedozone nonattainment areas that are classified as serious or above in which the urbanized area populations over 200,000. 

### PART 93 

### FEDERAL REGLLATORY SECTION PART 99 NEW MEXICO REGULATORY SECTION

Sec. 101; Sec. 1096); Sec. 121(c)

Sec. 

### 106(b); Sec. 122(c)

These revisions expandthe types of areas coveredby the rule's grace period for 

### Sec. 

### 7(Z); Sec. 128(J); Sec.l40(C)

COOKE 

### TESTIMONY

## - PAGE 13

### NMED Exhibit 2

transportation plan content requirements. Ozone areas thathave an urbanized area population over 200,000 that are reclassifiedto a serious or higher classification(e.g., such a moderate ozone area that 

### is reclassified to serious), Serious and aboveozone areas in which the urbanized area population increasesto over 200,000; and Newly designated ozone nonattainment areas that are classified as serious or above in which the urbanized areapopulationis over 200,000. Clarifying that both Sec. 125(B) ofPart 99 and 93.143 ofPart 

### 99 that the twoyear graceperiods begins upon either the:Effectivedate ofEPA's actionthat reclassifies an ozone areawith an urbanized area population over 200,000, to a serious or higher classification, Officialnotice by the Census Bureau that the urbanized areapopuIationis over 200,000, or Effective date ofEPA's action that initiallydesignates an area as a serious or above ozonenonattainmentarea. 

### PART 

## 99 NEW MEXICO REGULATORY

Non-Federal Projects (ForIsolatedRural Areas Only) - This is a minor clarificationto Sec. 140@)(1) ofPart 99 that addresses the conformity requirements for non-federalprojects in isolated ruralnonattainmentand maintenance areas. Specifically,the finalrule requires a regionally significant non-federal project to be included in the regional emissions analysisof the most recent conformity detexmination "that reflects" the portion ofthe statewide transportation plan and statewide transportationimprovementprogram (STIP) which includesprojects planned for the isolated rural nonattainment or maintenancearea before theprojects can be approved. 

### PART 93 

### FEDERAL REGULATORY TYPE 

### OF

,WA
SECTION ISSUE ADDRESSED 

### IN FINAL RULE
SECTION

COOKE TESTIMONY

## - PAGE 14 I Clarification to Use of Approved Budgets in Conformity -A clarification 

### Sec. 109(c) Sec. 128(C)

### NMED Exhibit 2



### TYPE OF

AREA ISSUE ADDRESSED IN FINAL RULE

proposed to clarify the requirementsfor each criteriapollutant and standard that the budget test must be satisfiedas requiredby Sec. 137 ofPart 

### 99 for conformitydeterminations made on or after any one of the following: The effective date ofEPA's finding that a motorvehicle emissionsbudget in
a submitted 

### SIP is adequate, Thepublication date ofEPA's approval of such a budget in the Federal Register,or The effectivedate ofEPA's approval of such abudget in the Federal Register, if the approval is completed through directfinal rulemaking.
Under hs final rule change, the budge! would be used in any conformity determination conducted after the first time one of these three EPA actions occurs. 

### PART 93 

### FEDERAL REGULATORY SECTION PART 99 

### NEW MEXICO REGULATORY SECTION

PM 10 

### National Ambient Air Quality 

### Standard BuildNo-Build Test (Lower classifications) - As with the PM 2.5 standard, EPA is revising the buildnobuild test for certain existing and new nonattainment areas. Specifically,the final rule amends Sec. 138 to create the "build-no-greater-than-no-build" test, where conformity is demonstrated if emissions from the proposed transportation system ("build" or "action" scenario) are less than or equal to emissions from the existing transportation system ("no-build" or "baseline" scenario.The build-nogreater-than-no-build test is availableto all PMlo areas. 

### Sec. 199(d);

~ 

### Sec. 11 9(g)(2)

COOKE TESTIMONY

## - PAGE 15 Clarification to Precursors

### -These revisions clarify the list ofPMlo precursors in c. Sec.2(C)(3) and 13

8(f)(5) ofPart 

### 99. Under the revised Sec. 2(C)(3), only VOC and NOx are identifiedas PMlo precursors; i.e., PMlo is deleted from the list ofPMlo precursors in thisparagraph. The revisionsto Sec. 13 8(f)(5)provide 

### Sec. 109(b)(2)(iii); Sec. 1 1 9(f)(5)

### NMED Exhibit 2

Definitions

### - Clarify the conformity rule's definitions for "control strategy implementation plan revisioq" "milestone," "donut areas," "isolated rural nonattainmentand maintenance areas," 1-hour nonattainmentarea, and 

### 8- hour nonattainment area in Sec. 7 ofPart 

### 99. The clarificationsto these def~tions do not impose anynew requirements on nonattainmentand maintenance areas; these rule revisions simply clarifyEPA's original intent and current implementationofthe existing conformityrule. 

### TYPE OF

AREA

Areas With Insignificant Motor Vehcle Emissions-This section appliesto nonattainmentand maintenance areas where EPA fmds that the SIP'Smotor vehicle emissions for a pollutant or precursor for a given standard are an insidcant contributorto an area's regional air qualityproblem. This provision waives the regional emissions analysis for an insignificant pollutant or precursor in these areas upon the effective date of EPA's adequacy finding or approval of such a 

### SIP. Sec. 128(K) also establishes the minimum criteriathat are necessaryto demonstrate that motor vehicle emissions are insignificant.
Limited MaintenancePlans -These revisionsmake the conformity rule consistent with EPA's existing limited maintenance plan policies for the 1-hour ozone standard.Therevisions allows for any futurelimited maintenance plan policies for other standards to be considered in the conformityprocess. In general, a limited maintenance plan policy allows a nonattainment area with 

### air qualitythat 

### is signrficantlybelow a standardto request redesi,mtion through a more streanlinednzintenance plan. 

### Sec. 101 - - 

### ISSUEADDRESSED IN 

### FLNAL 

### RULE

consistency with otherpollutants and precursors discussedin this paragraph. Neither ofthese rule changeswilI affect conformity determinationsin 

### PMlo nonattainmentand maintenance areas. 

### Sec. 7

Sec. 140(C) 

### PART 93 

### FEDERAL REGULATORY SECTION

Sec. 101; Sec. 1090'); Sec. 128(J); Sec. 121(c) Sec.1 

### 40(C) 

### PART 99 

### NEW M%XICO REGULATORY SECTION

COOKE TESTIMOATY

## - PAGE 16

### NMED Exhibit 2

- 

### TYPE OF

AREA

Non-Federal Projects (For Isolated Rural Areas Only) - This is a minor clarificationto Sec. 140@)(1) of Part 99 that addresses the conformity requirements for non-federal projects in isolated rural nonattainment and maintenance areas. Specifically, the final rule requires a regionally significant non-federal project to be included in the regional emissions analysis of the most recent conformity determination "that reflects"theportion of the statewide transportationplan and statewide transportation improvement program (STP) which includes projects planned for the isolated rural nonattainment or maintenance area before theprojects can be approved.
Clarificationto Use of Approved Budgets in Conformity -A clarification to the November 5,2003 fmal rule, EPA proposed to clarify the requirements for each criteria pollutant and standard that thebudget test must be satisfied as required by Sec. 137for conformity determinations made on or after any one ofthe following: The effective date of EPAtsfinding that a motor vehicle emissions budgetin
a submitted SIP is adequate, The publication date ofEPA1s approval of such a budget in the Federal Register, or The effective date of EPA1s approval of such a budget in the Federal Register, ifthe approval is completed through direct finalrulemaking. 

## PART'^^ NEW MEXICO REGULATORY SECTION ISSUE ADDRESSED 

## IN FINAL 

### RULE

Sec. 121(b)(l). 

### PART 93 

### FEDERAL REGULATORY SECTION

Sec. 109(g)

Under this final rule change, thebudget would be used in any conformity determination conducted after the first time one ofthese three EPA actions occurs. 

### Sec. 140(B)(1)

Sec. 128(G)



# I CO 

### National 

# 1 Build1No-Build Test (Lower 

# 1 Sec. 119(~);

COOKX TESTIMONY

## - PAGE 17 

## ( ~~bi~~~ ~i~ 

# 1 2:~:d classifications) -The federal rule is amendedto createthe "build-no-greaterthan-no-build"test, where conformityis demonstrated if emissions from the 

### Sec. 119&)(2)

### NMED Exhibit 

## 2

TYPE OF



### AREA ISSUE ADDRESSED 

### IN FINAL RULE

proposed transportation system ("build" or "action" scenario) are less than or equal to emissionsfrom the existing transportation system ("no-build" or "baseline" scenario).

The build-no-greater-than-no-build test is available to the following subset of new and existing areas: CO areas ofmoderate classification with designvalues less than 12.7ppm and Not classified CO areas. Regional Conformity Tests Moderate and Above ClassificationsMgher Classifications) 

### - CO areas of higher nonattainment classifications must meet both the build-less-than-nobuild and less-than-baseline year tests to demonstrate conformity in the period before SIP budgets are available. This provision will affect moderate CO areas with designvalues greater

### than 12.7 ppm, and serious CO areas.This requirement is identical to the requirement ofthe existing conformity rule for these areas, and was the first of three options proposed for regional emissionsanalyses before adequate or approved SIP budgets are established.

rule's definitions for "control strategy implementation plan revision," "milestone," "donut areas," "isolated rural nonattainment and maintenance areas," 1-hournonattainment area, and 8- hour nonattainment area in Sec. 7 ofPart 

### 99. The clarifications to these defjnitions do not impose anynew requirements on nonattainment andmaintenance areas; theserule revisions simply clanfy EPA's original intent and current implementation ofthe existing conformityrule. 

### PART 93 

### FEDERAL REGULATORY SECTION

Sec. 119(c)l 

### PART 99 

### NEW MEXICO REGULATORY SECTION

Sec.138(C)1

COOKETESTIMONY

## - PAGE 18 Areas With Insigdicant Motor Vehicle Emissions

### -This section applies to nonattainment and maintenance areas where EPA finds that the SIP'Smotor 

### Sec. 1 09(k); Sec. 121(~) Sec. 128(K); Sec. 140(C)

### NMED Exhibit 2



### TYPE OF

AREA ISSUE ADDRESSED 

### IN FINAL RULE

precursor for a given standard are an insignificant contributor to an area's regional 

### air quality problem. Ths provision waives the regional emissions analysis for an insignificant pollutant or precursor 

### in these areas upon the effective date ofEPA's adequacy finding
or approval of such a SIP. Sec. 128(K)of Part 99 also establishes the minimum criteriathat are necessaryto demonstrate that motor vehicle emissions are insignificant. 

### PART 93 

### FEDERAL REGULATORY

vehicle emissions for a pollutant or 

### SECTION

Transportation plan and modeling requirements (Higher Cla~s~cations) 

## - Provides a two-year grace period in Sec. 143 ofPart 99 before the more advanced transportation modelingrequirements in Sec. 142 ofPart 99 are required 

### in the followingtypes ofnonattainment areas or portions of such areas that are not already required to meet these provisions: CO areas that have anurbanized area population over 200,000 and are reclassified to a serious orhigher classification(e.g., such a moderateCO area that is reclassified to serious); Seriousand above CO areasin which the urbanized area population increases to over 200,000; and Newly designated CO nonattainment areas that are classified as seriousor above in which the urbanized area populations over 200,000. Limited Maintenance Plans 

### - These revisionsmake the conformity rule consistent with EPA's existing limited maintenance plan policies for the CO standard. The revisions allows for any future limited maintenanceplan policies for other standardsto be considered 

### in the conformity process. 

### In general, a limited maintenance plan policy allowsa nonattainment area with 

### air qualitythat is sigmticantlybelow a standard to request redesignationthrough a more streamlined maintenanceplan.


### Sec. 106(b); Sec. 122(c) Sec. 101; Sec. 1090'); Sec. 121(c) 

### PART 99 

### NEW MEXICO REGULATORY SECTION

Sec. 

### 7(Z); Sec. 128(J); Sec.140(C)

Sec. 125(B); Sec. 143

COOKE TESTIMONY

## - PAGE 19

### NMED Exhibit2



### TYPE OF ISSUE ADDRESSED 

### IN FINAL RULE

These revisions expandthe types of areas coveredby the rule's graceperiod for transportation plan content requirements. Serious and above CO areas in which the urbanized area population increases to over 200,000; and Newly designatedCO nonattainment areas that are classfied as seriousor above 

### in which the urbanized area population is over 200,000. Clarifying that both Sec. Sec. 125@) and 93.143 ofPart 99 that the two-year grace periods begins upon either the: Effective date ofEPA's action that reclassifies a CO area with anurbanized area population over 200,000, to a serious or higher classification, Official noticeby the Census Bureau that the urbanized area population is over 200,000, or Effective date ofEPA's action that initially designates an area as a seriousor above CO nonattainment area. Non-Federal Projects (For IsolatedRural Areas Only) - This is a minor clarificationto Sec. 140@)(1)ofPart 99 that addresses the conformity requirements fornon-federal projects 

### in isolated rural nonattainment and maintenance areas. Specifically, the hal rule requires a regionally significant non-federal project to be included in the regional emissions analysisofthe most recent conformity determination "that reflects" theportion ofthe statewide transportation plan and statewide transportation improvement program (STIP) which includesprojects planned for the isolated rural nonattainment or maintenance area before the projects can be approved. Clarification to Use of Approved Budgets in Conformity -A clarification to the November 5,2003finalrule, EPA proposed to clanfy the requirementsfor each criteria pollutant and standard that the budget test must bs satisfied as

COOKE TESTIMOAT

## - PAGE 20 

### PART 93 

# I FEDERAL REGULATORY SECTION PART 99 

### NEW 

### MEXICO REGULATORY SECTION

-

### NMED Exhibit2

required by Sec. 137 for conformity determinationsmade on or after any one of the following: The effective date of EPA's finding that a motor vehicle emissionsbudget in a submitted SIP is adequate, The publication date ofEPAfs approval of such a budget inthe Federal Register, or The effective date of EPA's approval of such a budget in the Federal Register, ifthe approval is completed through directha1 Alemaking. 

### TYPE OF

AREA

NOx National Ambient Air 

### Quality Standard ISSUE ADDRESSED 

## IN FINAL RULE

Under this Gnal rule change, thebudget wouldbe used in any conformity determination conducted after the fxst time one of these three EPA actions occurs.
Build/No-Build Test (Lower classifications)-The federal rule is amendedto create the "build-no-greaterthan-no-build" test, where conformity is demonstratedif emissions from the proposed transportation system ("build" or "action" scenario) are less than or equalto emissions from the existing transportation system ("no-build" or "baseline" scenario).

Thebuild-no-greater-than-no-build test is availableto the following allNO2 areas.
Defmitions

### - Clarify the conformity rule's definitions for "control strategy implementationplan revision," "milestone," "donut areas," "isolated rural nonattainment and maintenance areas," 1 -hour nonattainment area, and 

### 8- hour nonattainment area in Sec. 7 ofPart 99. The clarifications to these definitions do not impose any new requirementson nonattainment and maintenance areas; these rule revisions simply clarifyEPA's original intent and current implementation of the existing conformity rule. 

### PART 93 

### PART 99 

### NEW 

### MEXICO
SECTION

Sec. 1 1 9(d); Sec. 119(g)(2)

Sec. 101 Sec. 138@); Sec. 138(G)(2)

I 

### Sec. 

### 7

COOKE 

### TESTIMONY

## - PAGE 21 Areas With Insignificant Motor Vehicle Emissions - %s section appliesto 

### Sec. 1090; Sec. 128(K);

## NMED Exhibit 2

nonattainment and maintenance areas where EPA finds that the SIP'S motor vehicle emissions for a pollutant or precursor for a given standard are 

### an insignificant contributor to an area's regional air qualityproblem.This provision waives the regional emissions analysis for an insigruficantpollutantor precursor 

### in these areasupon the effective date of EPA's adequacyfinding or approval of sucha SIP. Sec. 128(K) also establishes the minimum criteriathat are necessary to demonstratethat motor vehicle emissions are insignificant. 

### TYPE 

### OF

AREA

Non-Federal Projects (For Isolated 

### Rural Areas Only) 

### - This is a minor clarificationto Sec. 140@3)(1) of

### Part 99 that addresses the conformity requirements for non-federal projects in isolated rural nonattainment and maintenance areas. Specifically,the 

### finalrule requires aregionally significant non-federal project to be included in the regionalemissions analysis ofthe most recent confonnity determination "that reflects" the portion ofthe statewide transportationplan and statewide transportationimprovement program (STIP) which includes projects planned for the isolated rural nonattainment or maintenance area before the projects can be approved. Clarificatfonto Use of Approved 

### ISSUE ADDRESSEDIN 

### FINAL RULE

Budgetsin Conformity 

### ---4 clarification to the November 5,2003 finalde, EPA proposed to clanfythe requirements for each criteria pollutant and standard that the budget test must be satisfied as required by Sec. 137 for conformity determinations made on or after any one of the following:

= The effective date of EPA's hnding that a motor vehicle emissionsbudget 

### in a submitted SIP is adequate, The publication date of EPA's approvalof such a budget in the Federal Register, or The effectivedate of EPA's approval of such a budget 

### in the Federal Register, ifthe a- 

### - 

### SECTION Sec. 121(c) 

### PART 93 

### FEDERAL REGULATORY SECTION Sec. 140(C) 

### PART 

### 99 NEW MEXICO REGULATORY

Sec. 121(b)(l). Sec. 140(B)(1)

COOKE 

### TESTIMOATY 

## - PAGE22

### NMED Exhibit 

### 2

Miscellaneous Revisions Under this fmal rule change, thebudget would be used in any conformity determination conducted after the first time one of these three EPA actions OCCUTS. 

### PART 99 

### NEW MEXICO REGULATORY SECTION

Federal Projects 

### - finalrule modifies Sec. 109(C)ofthe Part 99 so that no new federal approvals or funding commitments for non-exempt projects can occur during a transportation confonnity lapse. A conformity lapse generally occurs if transportation plan and TIP confonnity determinations are not made within specified time fiames. During a conformitylapse no new conformity determinations forplans, TIPS,and FHWA or FTA non-exempt projects may be made. Under the new Sec. 109(C)provision,non-exempt transportation project phases can be implemented during a lapse if they have received all requiredFHWA orFTA approvals or fundingcommitments and have met associated confonnity requirements before the lapse.However, no new federal approvals or funding commitments for subsequent or new project phases can be made during the lapse. 

### PART 93 

### FEDEUL REGULATORY SECTION TYPE OF

AREA

Determining Vehicle Emissions Budgets From Submitted SIPSAdequate 

### - The finalrule modified several provisions under Sec. 128 and 137 ofPart 99 to specify that EPA must affinhativelyfind submitted budgets adequate before they can be used in a conformity determination. The fmalrule also establishes the processby which EPA will review and make adequacyfindings for submitted SIPs, as described in the June 30,2003 proposal. Specifically, the final rule eliminatesthose provisionsin Sec. Sec. 128 and 137(E) that required areas to use budgets fiom submitted SIPs 45 days afier submission unless EPA had found them inadequate. Instead,today's rule stipulates that before a budget fiom 

### ISSUE ADDRESSED IN 

### FINAL RULE

direct fmal rulemaking.

COOKE TESTIMONY 

## - PAGE 23

## NMED Exhibit 2

TYPE OF

AREA

conformity, EPA must find it adequate using the criteria in Sec. 137(E)(4). 

## 1 a SIP submission canbeused in

General Description of the Vehicle Emissions Budgets Adequacy Process 

## - The final rule adds a new provision, Sec. 1370,to the conformityrule that provides the basic ffameworkof the adequacyprocess. The new Sec. 137(F) generally reflects EPA's existing adequacyprocess asproposed in the June 30,2003 rulemakmg and describedin EPA's 1999 adequacy guidance. The adequacyprocess consistsofthreebasic steps: public notification of a SIP submission, a public comment period, and EPA's adequacy finding,including responseto submitted comments. 

### ISSUE 

### ADDRESSED 

## IN FINAL RULE

Vehcle EmissionsBudgets Adequacy ReviewsThrough the SIP Process

### -This revision kalizingprocedures for conductingadequacy reviews and mhg adequacyfindings throughthe SIP approval process in Sec. 137(F)(2). 

### SECTION

Non-Federal Projects -A minor amendingSec. 140(A)of the conformity rule so that regionally sigmficant

### nonfederalprojects canno longerbe advanced during a conformity lapse unless theyhave received

### all necessary state and local approvals prior to the lapse. Non-federalprojects areprojects that are fimded or approvedby a recipient of federal funds designated under title23 U.S.C. or the Federal TransitLaws, but that do not require any FHWA/FTA funding or approvals. Under this final rule, recipients of federal funds cannot adopt or approvea regionally significant, non-federal project unless it is includedin a currently conforming plan and TIP or is reflected in the regional emissions analysis supportinga currently conformingplan and TIP. 

### PART 93 

### FEDERAL REGULATORY SECTION

Sec. 

### 140(A) 

### PART 99 

### NEW MEXICO REGULATORY 1

I I I 

# 1 Safety Margins

### - Sec. 149(B)of the 

# I Sec. 

### 124@) 

## ( Sec. 

### 149(B)

COOKE TESTIMONY

## - PAGE 24

### NMED 

### Exhibit 2



### TYPE OF



### AREA ISSUE ADDRESSED 

### IN FINAL RULE

conformityrule that provided a narrowly targeted flexibility to areas with SIPSthat had been submitted prior to the publicationdate ofthe original November 24, 1993 conformityrule was deleted. Under this provision, 

### if an approved SIP submitted before November 24, 1993,had included a safety margin, but did not specifyhow the safety margin was to beused, an area could submit a revision to the SIP and specifically allocate all or a portion of the safety margin to the SIP'Smotor vehicle emissionsbudget(s). The 1997 rule allowed this SIP revision to become effectivefor confonnitypurposes before EPA had approved the revision. EPA is not aware of any nonattainment or maintenance areas that are currently affected by the elimination of this provision. Streamlining the Frequency of Conformity Determinations 

### - Several revisions to the frequency requirements listed in Sec. 113ofPart 99. Specifically, eliminating Sec. 113(C)(4) that required an MPO and DOT to determine conformity of the TIP within six months of the date that DOT determined conformity of the transportation plan. Finalizing several rule revisions to streamline Sec. 115of Part 99. Inparticular, eliminating Sec. 115(e)(l) that required all nonattainment and maintenance areas to determine conformity within 18 months of November 24, 1993 (i.e., the date that EPA originally promulgatedthe conformityrule, 58 FR 62188). Sec. 11

5(A) is no longer relevant for any area. Finalizing two revisions to Sec. 115, which requires a confonnity determinationwihn 18-monthsof EPA's approval of a SIP. The first is specQmgthat an 18-month clock begins on the effective date of EPA's approval of the SIP. This clarificationwill resolve any ambiguity in the current rule asto when this 18-month clock begins. The secondrevision to Sec. 115173) will 

### PART 93 

### FEDERAL REGULATORY SECTION 

# ~

Sec. 104(c)(4); Sec. 104(e) 

### PART 99 

### NEW MEXICO 

# .--

REGULATORY SECTION



# ' Sec. 113(D);

Sec. 115

COOKE TESTIMONY

## - PAGE 25

### NMED Exhibit2

TYPE OF

AREA

when a conformity determinationhas not already been made using that same budget in the newly approved SIP. require a conformity determination only

Latest Planning Assumptions 

### - Amending Sec. 129(A)to change the point in the conformity process when the latestplanning assumptions are determined.This revision will allow conformity determinationsto be based on the latestplanning assumptions that are availableat the time the conformity analysis begins, rather than at the time of DOT'Sconformity determinationfor a transportation plan, TIP, or project.
Horizon Years forHot-Spot Analyses 

### - Therevision clarifies Sec. 13 5 of the conformityrule so that project-level hotspot analyses in metropolitan nonattainrnent and maintenance areas must consider the 

### fulltime frame of an area's transportation plan at the time the analysis is conducted. 

### PART 99 

### ISSUE ADDRESSED IN

SECTION

Relying on aPrevious Regional Emissions Analysis 

### - finalizing three 

### PART 93



### SECTION

revisions to Sec. 147, which describes when an area can rely on a previous regibnal emissions analysis for a new conformitydetermination. First revision is to Sec. 147 so thatMPOs can rely on a previousregional emissions analysis for minor transportation plan revisions. Secondrevision adds Sec. 147(C)to clanfy that a conformity determination that relies on a previous analysis does not satisfy the three-year frequency requirement for plans and TPs. Third revision adds Sec. 147(A)(4)and amends Sec. 147(B)to clarify that conformity determinations that rely on a regional emissions analysis must be based on 

### all adequate and approved SIP budgets that apply at the time that DOT makes its conformity determination. 

### FINAL 

### RULE

Sec. 1

### 1 0(a) 

### FEDERAL REGISLATORY

Sec. 116

Sec. 112(g) Sec. 129(A)

Sec.147

I I I 

# I Budget TestRequirements for the 

# I Sec. 118@); 

# I Sec. 137(B);

COOKE TESTIMONY

## - PAGE 26

### NMED Exhibit 2



### TYPE OF

AREA

I 

### SECTION Attainment Year 

### - Revision clarify~ng 

# 1 See. 

### 1 l8(d) 

### ISSUE ADDRESSED 

### IN FJNAL RULE

how Sec. 137(B) and (D) shouldbe implemented when a budget is established for a year prior to the attainmentyear (e.g., a reasonable further progress budget). Specifically,amending Sec. 137 (El) so that once an areahas any control strategy SIP budget available for conformitypurposes, conformitymust be demonstrated using the "budget test" for the attainmentyear 

### if the attainment year is withinthe time fiame of the transportationplan 

### PART 93 

### FEDERAL REGULATORY

Budget Test RequirementsOnce a MaintenancePlan Is Submitted

### - finalizing two minor changes to Sec. 137(B)(2)to clarify which budgets apply when an area has both control strategy SIP and maintenanceplanbudgets. First, EPA is clarifyrng Sec. 118(B)(2)(c)so that when a maintenance plan 

### has been submitted, the budget test is also completed for a submitted adequate control strategy SIP budgetthat is established for any year

### withinthe time fiame of the transportation plan. The second revisionis adding Sec. 137@)(2)(d)to clarify that the budget(s) established for the most recent prior year must be used for any analysis years that are selected before the last year ofthe maintenanceplan to meet the requirements of Sec. 137(D)(2). 

### PART 99 NEW MEXICO REGLTLATORY SECTION See. 

### 137@)

Exempt Projects 

### - A minor revision to the list of exempt projects in Sec. 151 of Part 99. On December 21, 1999,DOT published a rulerevision to its right-ofway regulation (64 FR 71284)that changedthe citation for emergencyor hardship advanceland acquisitions (revised citation: 23 CFR 710.503) 

### -- activities that are currently exemptfrom the conformityprocess. As a result, Sec. 15 1has been amendedto make the conformityrule fully consistentwith DOT'S December 1999rulemaking.



### COOKE TESTIMONY 

## - PAGE 27 

### Set. 

### 126

### NMED Exhbit 

### 6



### NEW MEXICO ENVIROMMENTAL IMPROVEMENT BOARD NOTICE OF PUBLIC MEETING AND HEARING

Proposed Revision of20.2.99 

### iVM.4C-Con formirfy to the State Implementation Plan of Transportation Plans, Programs andProjects (EIB 05-03 

### (R)
TheNew Mexico Environmental ImprovementBoard (Board) will hold apublic hearing on July 5,2005, in conjunctionwith their normal July meeting. The hearing will begin at 9:00 a.m. at theNew Mexico State Capital Buildingin Santa Fe,New Mexico. At this hearing, the Board will consider proposed revisions to the 

### EIB 05-03(R)Air QualityControl Regulation 20.2.99 NMAC
-

### Conformity to the State Implementation Plan of TransportationPlans, PI-ograms, and Projects.
Thepurpose of thepublic hearing is to consider and take possible action on a petition from the New Mexico Environment Department (NMED)regardingproposed revisions to the above-listed State ImplementationPlan (SIP) revision. Theseproposed changes are intended to incorporate mandated revisions from the U.S. EnvironmentalProtection Agency for transportation conformity. TheNMED proposal includes minor revisions ofthe 18-month requirement for initial SIP submissions, the addition of a grace period for newly designated non attainment areas and amendments for the new 8-hour ozone andparticulate matter 2.5 microns in sizeNational Ambient Air Quality Standards.
Theproposed changes may be reviewed during regular business hours at the NMED Air Quality Bureau office located at 2044 Galisteo, Stanta Fe,New Mexico. A full text ofthehTMED's proposed changes are also available on the NMED's web site at www.nmenv.state.nm.us,or by contacting Gail Cooke by phone at (505) 955-8022 or by e-mail at Gail-Cooke@nmenv. state.nm.us. The hearing will be conducted in accordance with 20.1.1 NMAC (RulemakingProcedures) Environmental ImprovementBoard, the Environmental Improvement Act, Section 74-1-9 NMSA 1978,the Air Quality Control Act Section 72-2-6hTMSA 1978 and other applicable procedures.
All interested persons will be givenreasonable opportunity at the hearing to submit relevant evidence, data, views and arguments, orally or in writing, to introduce exlubits, and to examine witnesses. Persons wishing to present technical testimonymust 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 theperson intends to present and state the qualifications ofthe witness, including a description oftheir education and work background; (3) summarize or include a copy of the direct testimonyof each technical witness and state the anticipated duration of the testimony ofthat witness; (4) 

### list and describe, or attach,each exhibit anticipatedto be offered by that person atthe hearing; and (5) attach thetext of any recommended modifications to the proposed changes.

### Notice

New Mexico Register / VoIume 

### XVI, Number 8 /April 29,2005 

### Page 1

### of 

## 2

NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD NOTICE OFPUBLIC MEETING 

### AND HEARING Proposed Revision of20.2.99 

### NlMAC 

## - Conformity to the State Implementation PIan of Transportation PIans, Programs and Projects (ElB 05-03 (R))
TheNew Mexico Environmental ImprovementBoard (Board) will hold a publichearing on July 5,2005, 

### in conjunction with their normal July meeting. The hearing will begin at 9:00 am. at the New Mexico StateCapital Building 

### in SantaFe, New Mexico. At this hearing, the Boardwill consider proposed revisions to the ED3 05-03(R)Air QuaLity Control Regulation 20.2.99 NMAC -- Conformity to theState Implementation Plan ofTransportationPlans, Programs, andProjects.
The purpose of the public hearing is to consider and take possible action on a petition from the New Mexico Environment Department (NMED) regarding proposed revisionsto the above-listed StateImplementationPlan (SIP) revision. These proposed changes are intendedto incorporatemandated revisionsfrom the U.S. Environmental Protection Agency for transportationconformity. The NMED proposal includes minorrevisions ofthe 18-month requirement for initial SIP submissions, the addition of a graceperiod for newly designatednon attainment areas and amendments forthe new 8-hour ozone and particulate matter 2.5 microns in sizeNational Ambient Air Quality Standards. The proposed changes may be reviewed during regular business hours atthe NMED Air QuaIity Bureau office located at 2044 Galisteo, SantaFe, New Mexico. A full text ofthe NMED's proposed changes are also available on the 

### NMED's web site at wwwmenv.state.nrn.us, orby contacting Gail Cooke by phone at (505) 955-8022 orby e-mail at 

### Gail_Cooke@nmenv.state.nm.us.
Thehearing will be conducted in accordance with 20.1.1 NMAC (RulemakingProcedures) EnvironmentalImprovement Board, the Environmental ImprovementAct, Section 74-1-9 NMSA 1978,the Air Quality Control Act Section 72-2-6NMSA 1978and other applicable procedures.
All interested persons will be givenreasonable opportunity at the hearing to submitrelevant evidence, data, views and %gents, orally or in writing, to introduce exhibits, andto examine witnesses. Persons wishing to present technical testimony must file with the Board a written notice ofintent to do so. The notice ofintent shall: (1) idene the person for whom the witness(es)will testify; (2) ideneeachtechnical witness that the person intendsto present and statethe qudifications ofthe witness, including a description of their education and workbackground; (3) summarizeor include a copy ofthe direct testimony of each technical witness and statethe anticipatedduration ofthe testimony ofthatwitness; (4) list and describe, or attach, each exhibit anticipated to be offered by thatperson at the hearing; and (5). attach the text of any recommended modifications to theproposed changes.
Notices of intent for the hearing must be received in the Office ofthe Environmental Improvement Board not laterthan 500 

### pm on June24,2005, and should referencethe name ofthe SIP revision and the date ofthe hearing. Notices of intent to present technicaltestimony shouldbe submitted to:

Barbara Claire, Board Administrator Ofice ofthe Environmental Improvement Board Harold RunnelsBuilding 1190 St. Francis Dr., Room N-2150 12153 SantaFe, 

### NM 87502 Phone: (505) 827-2425,Fax (505) 827-2836 Any member ofthe generalpublicmay testify at the hearing. No prior notification is required to presentnon-technical testimony 

### atthehearing. Any suchmember may also offer exhibitsin connection with his testimony, so long as the exhibit is not unduly repetitious ofthe testimony. A member ofthe generalpublic who wishes to submit a mitten statementfor the record, in lieu ofproviding oral testimony at the hearing, shall file the written statement prior tothe hearing, or submit it at the hearing.
Persons having a disabilityand needing help 

### inbeing a part ofthis hearing process should contact Judy Bentley by June 24, 2005 at the New Mexico Environment Department, Personnel Services Bureau, P.O. Box 26 110, 1190 St.Francis Drive, SantaFe, New Mexico, 87502, teiephone 505-827-9872. users please accessher number via the New Mexico Relay Network at 1-800-659-8331.



### http 

### ://www.nmcpr.state.nm.uslnmregister/xvi/xviO 8EIBnotice.htm 

### 611512005The New Mexlco ~nvlronmenial Im rovemenl Board (Bohrd) will hokapubl~! hearing m July 51 2005, In coniunclionwllh lh~ir nor:

Ihe p(lrpose oi Ihe publlc'ne~lny '( Is lo consider and tske'posslble aclion 09 a peltllon from the New I Mex~co Env~ronmentDeoarlmenl ! (NMEDj regarding roposed revi- 'r slons 113lhe above-Itled SlaleI)mm 

# 1 olemenlalion Plan (SIP\ revis~on

## . 

# I These poposed cfiang'es a[e in-k lehded lo lncoroorale mandaledk Irevisions! from .he U.S.. Environ-:I menlal Proleclion Agency lor 

# Ilrans~orlalion conlormlly. The

# 1 I NMED orooosal Includesminor're- I

vislons' 01'the 18.monlh re uire 

# I men1 for lnillal SIP submissqons;

# 1, IIhe addllion ol a orace oeriod lor I

, newly designaledsn6n a~ainmenl 

# 4areas and amendments lot Ihe

# I!

t new 8-hour ozone and partlcuiale 

## /

I rnaller 2 5 mlcrons inslze Nalional I 

# I
Ambknl Alr Qu~lily Standards. 

# I(

The pro osed chan es 'ma; be rev~ewecfdurin re jar bdslness hours a1 Ihe 

## /SMWAir Qualll W~raa~; nllirp lnrqlarl al 7ndd 

## STATE OF

## NEW 'MEXICO County of Berllalillo SS

Bill Tafoya, being duly sworn, declares and says that he is Classified Advertising Manager of The Albuquerque Jourl~al, 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 paymellt therefore has been made of assessed as court cost; that the notice, copy of which is hereto attgched, was published in said paper in the regular daily* dition, for being on the &2ay of consecutive publications on ,20-.

reme, a Notary Public, in and for the County of Berilalillo aild State of New Mexico this

PRICE Statement to come at elid of month.

ACCOUNT NUMBER P

# New Mexico Commission of Public Records Administrative Law Division 1205Camino CarlosRey 

## Santa

## Fe, NM 87507 505-476-7907 

# Affidavit of Publication in the

# New Mexico

# Register
I certify that the agency noted below haspublished legal notices or rules in theNew Mexico Register, and that payment has been assessedby invoice for said legal notice orpublication, which appeared on the date and in the volume and issuenumber noted below. Date of Publication: 9/30/2005 

### Agency: Volume: XVI Issue# : 

### 18 

### EIB -Air Qua1 

### Invoice # : 

### NMR-2006- 

### 93 Amount: $997.50 Contact: Gail Cooke 

### 2044 Galisteo St Santa Fe, 

### NM 87504- 

### Description: Amendment 20.2.99 NMAC Conformity to the StateImplementation Plan



### Date: 10/6/2005

New Mexico CommissionofPublic Records 

## Notice to PublishingAgency Enclosed are your agency's proof copies ofthe legal notices or rules which were published in theNew Mexico Register. Thesedocument the fact that your Notice ofRulemaking, Proposed Rule, or Adopted Rulehas been published 

### in the New Mexico Register.
Form SRC-2002-04

### New Mexico Register/ 

### Volume XVI, Number 18/ 

### September 30,2005

- - wells, or incident to or resulting from the
use of inefficient storage or from the production of crude petroleum oil or natural gas, in excess of the reasonable market quantity and of such duration as may with reasonable probability injure human health, animal or plant life or property, or to unreasonably interfere with the public welfare or ment 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 demand; 

# I the use of property. 

# I criteria pollutants for which the area is des- (c) the production of crude petro- (6) Well blowout shall mean a ignated non-attainment or has a mainteleum oil in this state in excess of the reasonable market demand for such crude petroleum oil; such excess production causloss of control over and subsequent eruption of any drilling or workover well or the rupture of the casing, casinghead, or wellhead nance plan. B. The provisions of this part apply with respect to emissions of the es or results in waste which is prohibited by or any oil or gas well or injection or dispos- following criteria pollutants: ozone, carbon the Oil and Gas Act; the words "reasonable 

# I a1 well, whether active or inactive, accom- 

# I monoxide, nitrogen dioxide, and particles market demand" as used herein with respect to crude petroleum oil, shall be construed to
mean the demand for such crude petroleum oil, for reasonable current requirements for current consumption and use within or outside of the state, together with the demand panied by the sudden emission of fluids, gaseous or liquids, from the well. (7) Wellhead protection area shall
mean the area within 200 horizontal feet of any private, domestic fresh water well or spring used by less than five households for with an aerodynamic diameter less than or equal to a nominal 10micrometers (PMIO) 

### 0 less than or eaual to a nominal 2.5 micrometers (PM2.5). C. The provisions of this of such amounts as are reasonably neces- domestic or stock watering purposes or part apply with respect to emissions of the sary for building up or maintaining reason- 

# I within1000 horizontal feet of any other 

# I following precursor pollutants in nonattainable storage reserves of crude petroleum oil or the products thereof, or both such crude petroleum oil and products; fresh water well or spring. Wellhead protection areas shall not include areas around water wells drilled after an existing oil or ment or maintenance areas: (1) volatile organic compounds and nitrogen oxides in ozone areas; (d) the non-ratable purchase or natural gas waste storage, treatment, or dis- 

# I I (2) nitrogen oxides in nitrogen taking of crude petroleum oil in this state; posal site was established. dioxide areas; and such non-ratable taking and purchasing
causes or results in waste, as defined in Subparagraphs (a), (b), and (c) of this defi- (8) Wetlands shall mean those areas that are inundated or saturated by surface or groundwater at a frequency and (3) volatile organic compounds and/or, nitrogen oxides, [eiw&PM&] in PM10areas if: nition and causeswaste by violating Section duration sufficient to support, and under 

# I I (a) the EPA region 6 administra70-2-16 of the Oil and Gas Act; normal circumstances do support, a preva- tor or the department has made a finding (e) the production in this state of natural gas from any gas well or wells, or from any gas pool, in excess of the reasonable market demand from such source for natural gasofthe type produced or in excess of the capacity of gas transportation facilities for such type of natural gas; the words "reasonable market demand," as used herein with respect to natural gas, shall be construed to mean the demand for natural gas for reasonable current requirements, for current consumption and for use within or outside the state, together with the demand for such amounts as arenecessary forbuilding up or maintaining reasonable storage reserves of natural gas or products thereof,
or both such natural gas and products. (2) Water shall mean all water including water situated wholly or partly within or bordering upon the state, whether surface or subsurface, public or private, except private waters that do not combine with other surface or subsurface water. (3) Water contaminant shall mean any substance that could alter if released or spilled the physical, chemical, biological or radiological qualities of water. "Water contaminant" does not mean source, special nuclear orby-product material asdefined by the Atomic Energy Act of 1954. (4) Watercourse shall mean any lake bed, or gully, draw, stream bed, wash, arroyo, or natural or human-made channel through which water flows or has flowed. (5) Water pollution shall mean introducing or permitting the introduction into water, either directly or indirectly, of
one or more water contaminants in such lence of vegetation typically adapted for life in saturated soil conditions in New Mexico. Constructed wetlands used for wastewater 

# ' treatment purposes are not included in this

definition. (9) Working interest owners are the owners of the operating interest under
an oil and gas lease who have the exclusive right to exploit the oil & gas minerals. Working interests are cost bearing. [I-5-50

...2-1-96; A, 7-15-96; Rn, 19 NMAC 15.A.7.1 through 7.84, 3-15-97; A, 7-15-99; 19.15.1.7 NMAC 

### - Rn, 19 NMAC 15.A.7, 5-15-001; A, 3/31/04; A, 9/15/04; A, 09/30/05]



### NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD

This is an amendment to 20.2.99 NMAC, Sections 2, 7, 109, 112-1 18, 120-123, 125, 128-129, 135-140, and 143-154, effective 10/15/05.
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 improve- (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 thenonattainment-area are a significant contributor to the PMlO nonattainment problem and has so notified the MPO (or the 

### -1 NMDOT in the absence of an

MPO) and US DOT; or (b) the applicable SIP (or implementation plan submission) establishes 

### [el
an approved (or adeauate) 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 m; from re-entrained road dust if the EPA regional administrator or the department has made finding that re-entrained road dust emissions within the area are a significant contributor to the PM2.5 nonattainment problem and has so notified the MPO (or Od US DOT. or if the a~plicable SIP (or im~lementation plan submission'l includes reentrained road dust in the approved (or adequate )budget as part of the reasonable further Drogress. attainment or maintenance

are produced bv travel and ~aved and un~aved roads (includine emissions from anti-skid and deicing material(s)). 

## [WE. The provisions of this part apply to maintenance areas for 20years from the date US EPA approves the department's request under Section 107(d) of the

### New Mexico Registe
CAA for redesignation to attainment, unless the applicable implementation plan specifies that the provisions of this part shall apply for more than 20 years. [I2/14/94; 11/23/98; 20.2.99.2 NMAC

### -Rn, 20 NMAC 2.99.101 10/31/02; A, 10/15/05]
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., USEPA regulations, US DOT regulations, and 20.2.2 NMAC (Definitions), in that order of priority. A. - "1-hour ozone NAAOS" means the 1-hour ozone national ambient air aualitv standard codified at 40 CFR 50.9. B. - bb8-ho~r ozone NAAOS" means the 8-hour ozone national ambient air aualitv standard codified at 40 CFR 50.10. [A]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),
orpromulgated or approved pursuant to regulations promulgated under Section 301(d) and which implements the relevant requirements of the CAA. [8]D. "CAA" means the CleanAir Act, as amended, 42 U.S.C. 740 1, et seq. [€I& "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 ofthe 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. [B]E. "CFR" means the code of federal regulations. [GIG. "Clean data" means air quality monitoring data determined by US.EPA to meet the e national ambient air quality standard. [F]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. [G-11. "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 affirmative written documentation declaring conformi- 

### / 

### Volume XVI, 

### Number 

### 18 / 

### September 30,2005 1003 ty with the applicable SIP which is submitted to FHWA and FTA for approval with EPA consultation. An affirmative conformity determination means conformity to the plans purpose of eliminating orreducing 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. [IIIJ. "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 20.2.99.116 through 20.2.99.124 NMAC. 

### [I]K. "Control strategy implementation plan revision" is the [pe+ eieffekkesIP]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 imvlementation plan revisions submitted to satisfy CAA Sections 172Cc). 182(b)(l), 182(c)(2)(A), 182(c)(2)(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;- ble CAA provisions requiring a demonstration ofreasonable further promess or attain- &). L. 

### - "DeDartment" the New Mexico environment department. 

### [gM. "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. [GIN. "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 orperson 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 geomaphic areas outside a metropolitan pp boundarv of a nonattainment or maintenance area that contains anv part of a metropolitan area(s). These areas are not isolated rural nonattainment and maintenance 

### areas. [LIE. "FHWA" means the federal highway administration of US DOT. 

### [WQ. "FHWAIFTA project", for the purpose ofthis 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. 

## FIR. "Forecast period" with respect to a transportation plan is the period covered by the transportation plan pursuant to 23 CFR part450. [@IS. "FTA" means the federal transit administration of US DOT. [PIT. "Highway project" is
an undertaking to implement or modify a highway facility or highway-related program. Such an undertaking consists of all required phases necessary for implementation. For analytical purposes, it shall be defined 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 ifno additional transportation improvements in the area are made; and (3) not restrict consideration of alternatives for other reasonably foreseeable transportation improvements. [Q]Y. "Horizon year" is a year for which the transportation plan describes the envisioned transportation system in accordance with 20.2.99.125 NMAC. [R]Y. "Hot-spot analysis" is an estimation of likely future localized CO and PMlO pollutant concentrations and a comparison of those concentrations to the national ambient air quality standards. Hotspot 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. 

## [&]E. "Increase the frequen-

### I 

### September 30,2005

es or products created by their own employees. 

## [wm. "Regionally significant project" means a transportation project (other than an exemptproject) 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 fixed guideway transit facilities that offer an alternative to regional highway travel. [&]AQ. "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 forreasonable further progress, attainment, or maintenance. 

### [WM. "Standard'? means a national ambient air quality standard. [&]a. "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 301(d) of the CAA and which implements the relevant requirements of the CAA (see the definition for "applicable implementation plan"). [A&]&. "Title 23 U.S.C." means title 23 of the United States Code. [MIAS. "Transit" is masstransportation 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. [MILT. "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 trans1004 

### New Mexico
cy orseverity" 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 Dart of anv metro~olitan planning area as designated under the trans~ortation plannine.reeulations. Isolated rural areas do not have federallv required metropolitan transportation pp are part of the emissions in such areas are instead included in statewide transportation im~rovementprograms. These are not donut areas. [T]Y. "Lapse" means that the conformity determination for a transportation plan or TIPhas expired, and thus there is no currently conforming transportation plan and TIP. 

## z -ce plan" is a maintenance olan that EPA has 

### fi nance ~lan policv criteria for a eiven NAAOS and pollutant. To aualifvfor a limited maintenance olan. for example. an area



### must Iv below a given NAAOS. and it must be 

## fl motor vehicle emissions growth. 

### [Wu. "Maintenance area"
means any geographic region of the United States previously designated nonattainment pursuant to the CAA Amendments of 1990and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan under Section 175A of the CAA, as amended. [V;IB."Maintenance plan" means an implementation plan under Section 175Aof the CAA, as amended. [Ur]K. "Metropolitan planning organization (MPO)" is that organization designated as being responsible, together with the state, for conducting the continuing, cooperative, and comprehensive planning process under 23 U.S.C. 134 and 49 U.S.C. 5303. It is the forum for cooperative transportation decision-making. In the absence of an MPO, the 

### -1 NMDOT shall be responsible

for the transportation planning processes assigned to MPOs under this part [XIAD. "Milestone" has the meaning given in 

### CAA Sections 182(g)(l) and 189(c) [&%e-G4A] 

## for above nonattainment areas. res~ectivelv. For all other nonattainment areas, [A] _a milestone consists of an emissions level and the date on which[-]that level is to be achieved as reauired bv the applicable 

### -



### CAA 

### Register I

### Volume XVI, Number 18
pro~ess towards attainment. 

### PIS. "Motor vehicle emissions budget" is that portion of the total allowable emissions 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 milestones or demonstrating attainment or maintenance of the NAAQS, for any criteria pollutant or its precursors, allocated by the SIPto highway and transit vehicle use and emissions. [&]m. "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. [&IN. "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. [&]AJ 

### " [ N+HHVGD ] NMDOTis means the New Mexico [St& 

### -1 department

### of trans~~~~~ortation or its successor agency or authority, as represented by the department secretary or his or her designee. 

# ~f'w~u. "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. [A&]&. "Project" means a highway project or transit project. [PrFIfi. "Protective finding" means a determination by US EPA that a submitted control strategy implementation plan revision contains adopted control measures or written commitments to adoptenforceable 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. [A6.1&5. "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 23U.S.C. or federal transit law funds to construct FHWAIFTA 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 servic-

### September 30,2005 1005 part shall not applv with resDect to that standard for 10 months following the effective data of final desimation to nonattainment for each standard for such pollutant. [12/14/94; 11/23/98; 20.2.99.109 NMAC 

## - Rn, 20 NMAC 2.99.109 10131/02; A, 10/15/05]
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 revisions shall be found to conform before the transportation plan revisions are approved by the MPO (or [&e+MSW3] in the absence of an MPO) or accepted by the US DOT, unless the revision 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. The conformity determination shall be based on the transportation plan and the revision taken as a whole. C. The MPO and US DOT shall determine the conformity of the transportation plan [including a new regional emission analvsis) no less frequently than even.,three (3)years. If more than three (3) years elapse after US DOT'S conformity determination without the MPO and US DOT determining conformity of the transportation plan, the existing conformity determination will lapse. [I2/14/94; 11/23/98; 20.2.99.112 NMAC 

### - Rn, 20 NMAC 2.99.1 12 10/31/02; A, 10115/05]
20.2.99.113 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 [-I 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 MPO (or [-I 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 reeional emissions analv

### New Mexico Register portation improvements in the area are made; and (3) not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.

[#&]a. "Transportation control measure (TCM)" is any measure that is specifically identified and committed to in the SIPthat 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, fuelbased, and maintenance-based measures which control the emissions from vehicles under fixed traffic conditions are not TCMs for the purposes of this part. [tW]u. "Transportation improvement program (TIP)" means a staged, multi-year, intermodal program of transportation projects covering a metropolitan planning area which is consistent with the metropolitan transportation plan, and developed pursuant to 23 CFR part 450. 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. "US EPA" AY. - means the United States environmental protection agency "US DOT" [WAZ. means the United States department of transportation. [AT]BA. "Written commitment"for the purposes of this part means a written commitment that includes adescription 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]
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 [eke 

### / 

### Volume XVI, Number 18/ +&l&W&.] NMDOT in the absence of an MPO) or US DOT; (b) the adoption, acceptance, approval or support ofTIPSand TIP amendments developed pursuant to 23 CFR part 450 or 49 CFR part 613 by an MPO (or [eke 

### -1 NMDOT in the absence of an

MPO) or US DOT; and (c) the approval, funding, or implementation of FHWARTA projects. (2) Conformity determinations are not required under this part for individual projects which are not FHWAFTAprojects. 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. 

### [P

. . 

### -'-'---.--'.--'.-..-

&

. . 

## 1 .E

. . 

### 0 @ I,\

. 

### . 

### -'-'---.--'.-- ,L,,,, 

## 9 . ..

. . 

### & es7

. . 

# ~

. . 

## ------'

. ...

. 

### . -1 In order to receive anv FHWARTA approval or funding actions. including NEPA a~~rovals, for a proiect phase subl'ectto this sub~art. a currentlv conformine trans~ortation plan and TIPmust be in place at the time ofproiect approval as described in Subsection A of 20.2.99.133 NMAC. except as provided bv Subsection B of 20.2.99.133 NMAC.

- D. Grace ~eriod for new 

### N



## of ignatedy standard for ozone. CO. PMIO. PM2.5 or Nmv redesignated tononattainment or desinnated n4f



## these1006 

### New Mexico Register/ 

### Volume XVI, Number 18/ 

### September 30,2005

- - - 

### &no less frequently than every three years or else the existing conformity determination will lapse. 

# -

-1 [12/14/94; 11/23/98; 20.2.99.113 NMAC 

### - Rn, 20 NMAC 2.99.113 10/31/02; A, 10115/05]
20.2.99.114 FREQUENCY OF CONFORMITY DETERMINATIONS 

### - PROJECTS. FHWAlFTA projects must be found to conform before they are adopted, accepted, approved, or funded. Conformity must be redetermined for any FHWNFTA project 

### [p

eewe&] if one of the followine occurs: a sienificant change in the ~roiect's design concept and scope: @J three (3) vears elapse since the most recent maior stepto advance the ~roiect including: (1) NEPA process comoletion; (2) start om, (31 acauisition of a significant portion of the right-of-wav: and (4) construction (includin~federal aoproval of ~lans, s~ecificationsand estimates): or initiation of a suo~lemental environmental document for air qualitv pumoses. [12/14/94; 11/23/98; 20.2.99.1 14 NMAC 

### - Rn,20 NMAC 2.99.1 14; A, 10/15/05]
20.2.99.115 FREQUENCY OF CONFORMITY DETERMINATIONS 

## - TRIGGERS FOR TRANSPORTATION PLAN AND TIP CONFORMITY DETERMINATIONS[dL Conformity of existing transportation plans and TIPS shall be redetermined within eighteen (18) months of the following, or 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

### -1 p]A. the date of the department's initial submission to US EPA ofeach control strategy implementation plan or maintenance plan establishing a motor vehicle emissions budget; [GIB. 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 budeet has not vet been used in a conformitv determination

## nor to a~uroval: and 

### [B 

# -

-1 

## [E]c. the effective date of US EPA promulgation of an implementation plan which establishes or revises a motor vehicle emissions budget[- -1. [12/14/94; 11/23/98; 20.2.99.115 NMAC 

### - Rn, 20 NMAC 2.99.115 10/31/02; A, 10115/05]
20.2.99.116 CONSULTATION. A. 20.2.99.116 NMACthrough 20.2.99.124 NMAC provide procedures forthe 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 20.2.99.116 NMAC shall undertake a consultation process with each other prior to the development of: 1)conformity determinations, 2) major activities listed in 20.2.9.1 17NMAC below; 3) specific major activities listed in 20.2.99.120 NMAC below; and 4) specific routine activities listed in 20.2.99.121 NMAC below. This consultation process shall follow the consultation procedures described in 20.2.99.119 NMAC below. B. Prior to EPA's approval of this part, any MPO (or [thAW&KW] NMDOT in the absence of an MPO) and [-I NMDOT, before makingany conformity determinations, shall provide reasonable opportunity for consultation with the department, the local transportation 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 off~ces, FTA region 6 offices, and EPAregion 6, including consultation on the issues described in 20.2.99.1 17 NMAC. This opportunity for consultation shall beprovided prior to the determination of conformity. C. Affected agencies[+]], (1) Agencies which are affected by this part and which are required to par- (a) the designated MPO for the nonattainment or maintenance area; @) the department; I 

## (4 [-I NMDOT;

(d) the local transportation agency for the county or city in which the nonattainment ormaintenance area is locatI ed; (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 inthe interagency consultation process include: (a) 

### [-I 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; (b) department: secretary or designee; (c) 

### -1 

# m:secretary or designee; (d)



### -1 NMDOT district office: district engineer; (e) local government: chief administrative officer or designee; (f) EPAregion 6: regional administrator or designee; (g) FHWA NM division office: division administrator or designee; (h) FTA 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 @) 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 ticipate in the consultation process are: 

### I the conformity process.

### New Mexico Registe [12/14/94; 11/23/98 ;20.2.99.1 16 NMAC 

### - Rn, 20 NMAC 2.99.116 10/31/02; A, 10115/05]
20.2.99.117 AGENCY ROLES IN CONSULTATION. Specific roles of the agencies participating in the interagency consultation process are listed below. Specificresponsibilities of the agencies participating in the interagency consultation process are listed in 20.2.99.118 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. A. Thedepartment shall be the lead agency for the development of: (1) applicable control strategy implementation plan revisions for the nonattainment or maintenance area; (2) the list ofTCMs tobe 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 ofthe unified planning work program under 23 CFR 450.3 14; (2) development of the transportation plan for the nonattainrnent 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 [6]

### 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, [th&W%TB] NMDOT shall be the lead agency for: (1) the development of the transportation plan for the nonattainment or maintenance area; (2) development ofthe TIP(transportation improvement program) for the nonattainment or maintenance area; (3) any amendments or revisions thereto; 

### I

### Volume XVI, Number 18 I 

### Sep (4) any determinations of conformity under this part for which an MPO would be otherwise responsible; (5) choosing conformity tests andmethodologies for isolated rural nonattainment and maintenance areas as required by Subparagraph (c) of Paragraph (2) of Subsection [GI 

### L of 20.2.99.128 NMAC; and (6) development of TCMs, in cooperation with the department. [12/14/94; 11/23/98; 20.2.99.117 NMAC 

### - Rn, 20 NMAC 2.99.117 10/31/02; A, 10115/05]
20.2.99.118 AGENCY RESPONSIBILITIES IN CONSULTATION. A. The department shall be responsible for developing or providing: (1) emissions inventories; (2) emissions budgets; (3) air quality modeling; (4) attainment demonstrations; (5) control strategy implementation plan revisions; (6) regulatory TCMs; and(7) updated motor vehicle emissions factors. B. The designated MPO (or, in nonattainment or maintenance areas where an MPO has not been established, 

### [-I 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 foruse in air quality analysisto 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.

[-I NMDOT shall be responsible for: (1) providing technical input onproposed revisions to motor vehicle emissions factors; (2) distributing draft and final 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. 

### :mber30,2005 1007 D. FHWA New Mexico offices and FTA region 6 shall be responsible for: (1) assuring timely action on final findings of conformity, after consultation with other agencies as provided in 20.2.99.116 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; 20.2.99.1 18 NMAC 

### - Rn, 20 NMAC 2.99.118 10131/02; A, 10115/05]
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 shallbe the agencies specified in Subsection C of 20.2.99.1 16NMAC above. A. Evaluation and choice of each model (or models) and associated methods and assumptions to be used in hotspot analyses and regional emissions analyses, including vehicle miles traveled (VMT) forecasting. The lead agency shall be the MPO (or 

### [-I 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 travel), and which projects should be considered to have a significant change in design concept and scope from the transportation plan or TIP. The lead agency shall be the MPO (or [k 

### -1 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, as1008 

### New Mexico Register / 

### Volume XVI, Number 18/ 

### September 30,2005 tion and design concept and scope of projects which are disclosed to the MPO, as required by Subsection D of 20.2.99.121 NMAC, but whose sponsors have not yet decided these features in sufficient detail to - 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 with 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 SIPto remove TCMs or substitute TCMs or other emission reduction measures. The lead agency shall be the MPO (or [(ke J%#WH+] NMDOT in the absence of an MPO). E. Determination, as required by 20.2.99.140 NMAC, of whether: (I) the project is included in the regional emissions analysis supporting the currently conforming TIP'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 

### [-I NMDOT in the absence of
an MPO).F. 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 agencyshall be the MPO (or [&&M&MQ] 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 thecontext ofa 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 [-I NMDOT.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 20.2.99.111 NMAC through 20.2.99.115 NMAC. The lead agency shall be the MPO (or [(ke NMWITS] NMDOT in the absence of an MPO). J. In the event that the metropolitan planning area does not include the entire nonattainment or maintenance perform the regional emissions analysis according to the requirements of 20.2.99.141 NMAC through [2Q&%M-S] 20.2.99.147NMAC. The lead agency shall be either the MPO or [-I NMDOT. Participating agencies shall include recipients of funds designated under title 23 U.S.C. or the federal transit laws. C. The design, schedule, 

### 1 and funding of research and data collection area, an interagency consultation process involving the designated MPO for the nonattainment or maintenance area, [& 

### -1 NMDOT, local transportatior

agencies, and the department, shall be undertaken, in the context of an MOA, fol cooperative planning and analysis for purposes of determining conformityof all projects outside the metropolitan area and within the nonattainment or maintenance area. The lead agency shall be NMDOT.K. In nonattainment or maintenance areas where more than one MPO is involved, such MPOs must develop a memorandum of agreement or memorandum of understanding reflecting their consultation. L. In nonattainment or maintenance areas where the MPO's jurisdiction does not cover the entire nonattainment or maintenance area, the MPO and 

### -1 NMDOT must develop a memorandum of agreementor a memorandum of understanding reflecting their consultation. M. Choosing conformity tests and methodologies for isolated rural nonattainrnent and maintenance areas, as required by Subparagraph (c) of Paragraph (2) of Subsection [GI Lof 20.2.99.128 NMAC. The lead agency shall be the MPO (or 

### [-I NMDOT in the absence

of an MPO). [12/14/94; 11/23/98; 20.2.99.120 NMAC 

### - Rn, 20 NMAC 2.99.120 10/31102; A, 10/15/05]
20.2.99.121 CONSULTATION PROCEDURES FOR SPECIFIC ROUTINEACTIVITIES. 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 20.2.99.119 NMAC. 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 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 allrelevant information and documents, as appropriate, to the participating agencies. A. Identification, as required by Subsection B of 20.2.99.146 NMAC, ofprojects located at sites in PM10 nonattainment areas which have vehicle and roadway emission and dispersion characteristics which are essentially identicalto 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 [(ke &%W-W3] NMDOT, in cooperation with the department. B. Assumption ofthe locaefforts; and regional transportation model development by the MPO (e.g., householdJtravel transportation surveys). The lead agency shall be either the 

### -1 NMDOT or the MPO, as applicable. Participating agencies shallbe the MPO,the department, and the 

### -1 NMDOT. D. Regionally Significant Non-FHWARTA Projects. (1) Assurance that plans for construction of regionally significant projects which are not FHWAIFTA 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, 

### [-I 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 tothe designated MPO for the nonattainment or maintenance area and [-I NMDOT in a timely manner. Such disclosure shall be made not later than the first occasion on which any of the following actions is sought: (a) anypolicy board action necessary for the project to proceed; (b) 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 anyindebtedness for the facility; (e) any final action of a board, commission or administrator authorizing or directing employees to proceed with design,

### New Mexico Register I

### Volume XVI, Number 18 I 

### September 30,2005 1009 hasconfirmed receipt by the secretary ofthe department or [-I NMDOT of the resolution of the comments of 

### [Ike +tMSKR3] NMDOT. If [-I NMDOT appeals to the governor, the final conformity determination must have the concurrence of the governor. 

### [Tke 

### -1 NMDOT must provide notice

of any appeal under this subsection to the MPO and the department. If [k +tMSKR31 NMDOT 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, [-I NMDOT, a state transportation commission or board, any agency that has responsibility for one of these functions, or an MPO. [12/14/94; 11/23/98; 20.2.99.123 NMAC 

### - Rn, 20 NMAC 2.99.123 10/31/02; A, 10/15/05]
20.2.99.125 CONTENT OF TRANSPORTATION PLANS. 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 accordancewith 20.2.99.116 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 (10) 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) if the attainment year is in the time span of the transportation plan, the attainment year shall be a horizon year. (d) the last horizon year shall be the last year of the transportation plan's forecast period. (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 implepermitting 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 suchregionally significantproject that has notbeen disclosed in a timely manner to the designated MPO for the nonattainment or maintenance area, [-I NMDOT, and other interested agencies 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 ofrepeated 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 emissionsbudget in the SIP, for the purposes of20.2.99.140 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, 1 011 5/05]
20.2.99.122 N 0T IF I CA T I0 N 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 revisions or amendments which merely add or delete exempt projects listed in 20.2.99.149 NMAC, shall be the aErmative responsibility of [-] NMDOT andlor 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 (1) of Subsection C of 20.2.99.1 16NMAC). [12/14/94; 11/23/98; 20.2.99.122 NMAC 

### - Rn, 20 NMAC 2.99.122 10131/02; A, 10/15/05]
20.2.99.123 CONFLICT RESOLUTION AND APPEALS TO THE GOVERNOR. A. Any conflict among state agencies or between state agencies and an MPO 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 [-I NMDOT or MPO has notified the department of the resolution of all comments on such determination of conformity or policy decision. Such fourteenday period shall commence when the MPO or [-I NMDOT has confirmed

receipt by the secretary ofthe 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 [-I NMDOT. If the department does not appeal to the governor within fourteen (14) days, the MPO or 

### -1 NMDOTmay proceed with the final conformity determination. C. In the case of any comments with regard to findings 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 [k &W-SWK+] NMDOT of the resolution of all comments on such determination of conformity or policy decision. Such fourteenday period shall commence when the MPO

### / 

### September 30,2005
emissionsmodel (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 @or 

### interim [ISIemission~ [wdtwtk] (3) TIP (a) Subsection C of 20.2.99.132 NMAC. TCMs (b) 20.2.99.137 NMAC and/or 20.2.99.138NMAC. Emissions budget 

### 4 lor interim Flgmissions [wh&k] (4) Project (From a conforming plan and TIP) (a) 20.2.99.133 NMAC. Currently conforming plan and TIP (b) 20.2.99.134 NMAC. Project from a conforming plan and TIP (c) 20.2.99.135 NMAC. CO and PMI0hot spots (d) 20.2.99.136 NMAC. PMlO and PM2.5control measures (5) Project (Not from a conformingplan and TIP) (a) Subsection D of 20.2.99.132 NMAC. TCMs (b) 20.2.99.1 33 NMAC. Currently conforming plan and TIP (c) 20.2.99.135 NMAC. CO and PMlO hot spots (d) 20.2.99.136 NMAC. PMlO and PM2.5 control measures (e) 20.2.99.137 NMAC and/or 20.2.99.138 NMAC. Emissions budget andorinterim emissiong [wh&k] 

## - C. 

## I-hour [Ql~zonenonattainment and maintenance areas. 

### This Subsection (Subsection C of Section 20.2.99.128 MAC)avvlies when an area is nonattainment or maintenance for the 1- hour ozone NAAOS (i.e.. until the effective date of anv revocation of the I-hour ozone NAAOS for an area). In addition to the criteria listed in Table 1in Subsection B of this section (20.2.99.128 NMAC) that are required to be satisfied at a11 times, in ozone nonattainment and maintenance areas conformity determinations must include a demonstration that the budget and/or 

### inter- im 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 

## m: (a) 

### [W

eS+iqp a motor vehicle emissions budget in a sub1010 

### New Mexico mentation plan provisions and 20.2.99.116 NMAC through 20.2.99.124 NMAC; (b) 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 transportstion 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 areawide transportation analysis in use by the MPO; transit facilities, equipment, and services envisioned for the future shall be identified in terms ofdesign 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 (c) other future transportation policies, requirements, services, and activities, including intermodal activities, shallbe described.B. [-



# ----. 0

. . 

# 1 -1 Two-vear grace period for transportation plan reauirements in certain ozone and CO areas. The requirements of Subsection A of 20.2.99.125 NMAC a~plies $0 such areas or portions of such areas that have ~reviouslv not been reauired to meet Pg NAAOS two vears from the follow in^: (1) the effective date of EPA's reclassification of an ozone or CO nonatUinment area that has meater than 200.000 to serious or above; 12) the official notice bv the census bureau that determines the urbanized area population of a serious or above ozone or CO nonattainment area to be meater that 200.000; or 131 the effective date of EPA's action that classifies a newlv designated ozone or CO nonattainment area that has an urbanized area vovulation greater than 200.000 as serious or above. C. Transportation plans for other areas. transportation plans for other

### Register / 

### Volume XVI, Number 18

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. 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 10131/02; A, 10/15/05]
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 tobe found to conformthe MPO and US DOTmust 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 FHWNFTAprojects or state projects), the relevant pollutant(~), 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 FHWAIFTAprojects. Subsections C through 

### [F] of this section (20.2.99.128 NMAC) explain when the budget, interim emission 

## [w, and hot spot tests are required for each pollutant and NAAOS. Subsection J of this section (20.2.99.128 NMAC) addresses conformitv reauirements for areas with a~proved or adeauate 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 [GI 

### L ofthis section (20.2.99.128 NMAC) addresses isolated rural nonattainment and maintenance areas. Table 1 follows. Table I. Conformity Criteria. (1)All actions at all times (a) 20.2.99.129 NMAC. Latest planning assumptions @) 20.2.99.130 NMAC. Latest

### September30,2005 1011
tion for the 8-hour ozone NAAOS for an area. accordine to Subsection D of 20.2.99.109 NMAC. In the addition to the criteria listed in Table I in Subsection B of 20.2.99.128 NMAC that are required to be 

### 1 nonattainment and maintenance areas conformitv determinations much include a demonstration that the budget andlor interim emissions tests are satisfied as described in the followine. [I) In such 8-hour ozone nonattainment and maintenance areas the budeet test much be satisfied asrequired bv Section 20.2.99.137 NMAC for conformitv 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 maintenance ~lan for the 8-hour ozone NAAOS is adequate for transportation conformitv pur- ~oses: (b) the ~ublication date of EPA's approval of such a budget in the federal reeister: 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 rulemakine. (2) In ozone nonattainment areas that are required to submit a control strategy implementation vlan revision for the 8- hour ozone NAAOS !usuallv moderate and above and certain Clean Air Act. art D subpart 1 areas). the interim emissions tests must bv satisfied as reauired bv Section 20.2.99.138 NMAC for ;onfo&i? determinations made when there is no a~~roved motor vehicle emissions budget from an applicable implementation vlan for 8-hour
ozone NAAOS and no adequate motor vehicle emissions budget from a submitted control strategv implementation ~lan revision
or maintenance ~lan for the 8-hour NAAOS. [3) Such an 8-hour ozone nonattainment area must satisfv the interim emissions test for NOx. as reauired bv Section 20.2.99.138 NMAC. if the im~lementation pD
tion is a fifteen Dercent (15%) plan or other cg

ozone NAAOS will be considered to estab-



# nr NOx if the im~lementation ~lan or Dlan sub

# -

motor 

### - vehicle emissionsbudeet that is intended to act as a on NOx emissions 

### - and the NOx-motor vehicleemissions et is a net reduction from NOx emissions 

### New Mexico Register
mined control strategvimplementation plan revision or maintenance Dlan for the 1-hour ozone NAAOS is adequate for transDortation conformitv oumoses; (b) ["

. .

e] the ~ublication data of EPA's approval of such a budget in the federal reeister: or [c) the effective state of EPA's ) jster. if such a~~roval is com~leted through direct final rulemakine. (2) In ozone nonattainment areas that are required to submit a control strategy implementation plan revision for the 1- hour ozone NAAOS (usually moderate and above areas), the interim emissions [t-e$ttetests must be satisfied as required by 20.2.99.138 NMAC for conformity determinations made when there is no ap~roved motor vehicle emissions budeet form an a~~licable im~lementation vlan for the 1- hour ozone NAAOS and no adeauate motor vehicle emissions budget form a submitted control strateev im~lementation ~lanrevision or maintenance ~lan for the I-hour
ozone NAAOS. [ 

### Inr\

p

. . 

### 1



# v-

. . 

### &

. 

### .



## .---'-----'-'.--

. . 

### -1 (3) An ozone nonattainment area must satisfy the interim emissions [* 

### &I 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 detenninations is a fifteen percent (15%) plan or phase I attainment demonstration that does not include a motor vehicle emissionsbudget for NOx. The implementation plan 

### for



## the 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. 

### / 

### Volume XVI, Number 

### 18/ (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 NAAOS (usually marginal and below areas) must satisfy one of the following requirements: (a) the interim emissions [* h] 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 NAAOS 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 [s&m&&] 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 ofclean data for the 1-hour ozone NAAOS 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 I-hour NAAOS 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 1-hour
ozone NAAOS (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. 8-hour ozone NAAOS nonattainment and maintenance areas without motor vehicle emissions budgets for the
8-hour nonattainment area. This Subsection [Subsection D of Section 20.2.99.128 

## 1 designated nonattainment for the I-hour ozone NAAOS but that never submitted a 

### ~strategv with emissions budgets. This Subsection (Subsection D of Section 20.2.99.128 NMAC) applies one (1) vear after the effec-



## tive

### / 

### September 30,2005
the ap~roved or adequate motor vehicle emissions budgets in the 1-hour ozone applicable implementation plan or implementation plan submission: and the interim emissions tests as reauired bv Section 20.2.99.138NMAC for either: the portioo 

### fi covered bv the approved or adeauate budeets in the I-hour ozone implementation ppozone nonattainment area within an individual state. in the case where separate I-hour mf a multi-state 1-hour nonattainment areaparfiallv covers a I-hour ozone nonattainment
@\ If the 8-hour ozone nonattainment area ~artiallv covers a 1-hour ozone budget test as reauired bv Section20.2.99.137NMAChour ozone nonattainment area covered by the corresponding portion of the approved or adeauate motor vehicle emissions budgets in the I-hour ozone a~vlicableim~lementation plan or implementation plan submission where thev can be reasonablv iden

### fifi process reauired bv Section 20.2.99.116 NMAC :and the interim emissions tests as
won 20.2.99.138 NMAC, when a~plicable. for either: the portion of covered bv the approved or adeauatebudeets in the 1-hour ozone implementation plan. the entire 8-hour ozone nonattainment pr ozone nonattainment area within an individual state. in the case where separate 1-hour SIPbudeets are established for each state in a multi-state 1-hour nonattainment or main- 

### &) Notwithstanding Subparagraphs (a). (b). (cI. and (dl of Paragraph (2) of Subsection E of this section submis-20.2.99.128NMACI. the interim emissions tests as reauired bv Section 20.2.99.138 NMAC. where the budeet test usine the approved or adeauatemotor vehi

### cG a~~licable implementation plan(s) or implevant area or portion thereof is not the appropriate test and the interim emissions tests are more a~propriate to ensure that the transportation plan. TIP. or project not from 

## 0, $r ozone standard. as determined through the interaeencv consultation process reauired bv Section 20.2.99.116 NMAC. 13) Such an 8-hour ozone nonattainment areamust satisfv the interim emissions test for NOx. as reauired bv Section 20.2.99.138 NMAC. if the onlv implemen1012 

### New Mexico
levels in 2002. 14) Ozone nonattainment areas 

## 1 and that are not required to submit a control stratem implementation plan revision for the 8-hour ozone NAAOS (usuallv marginal and certain Clean Air Act. part D. subpart 1 areas) must satisfv one of the following reauirements: [a) the interim emissions tests reauired bv Section 20.2.99.138 NMAC: or (bl the devartment shall submit to EPA an implementation plan revision for the 8-hour ozone NAAOS that contains motor vehicle emissions budeet(sI and a reasonable further progress or attainment demonstration. and the budget test reauired 

### bb isfied usine the adequate or approved motor vehicle emissions budeet(s! !as describ Paraaraoh (1) of Subsection D of 20.2.99.128 NMAC).



### 1- (1) and (2) of Subsection D of 20.2.99.128 NMAC. ozone nonattainment areas with three (3) vears of clean data for the 8-hour ozone NAAOS that have not submitted maintenance plan and that EPA has determined are not subject to the Clean Air Act 

### reasonable demonstration reauirements for the 9-hour ozone NAAOS must satisfv one of the fol- lowing requirements: la)the interim emissions tests as reauired bv Section 20.2.99.138 NMAC: (b) the budget test as reauired by Section 20.2.99.137 NMAC. using the adeauate or approved motor vehicle emissions budeets in the submitted or applicable control strategv implementation plan for the 8- hour ozone NAAOS lsub~ect o the timing reauirements of Paragraph 111 of Subsection D of 20.2.99.128 NMAC: or [c) the budget test as reauired by Section 20.2.137 NMAC. using the motor vehicle emissions ofozonevrecursors in the most recent vear of clean data as motor vehicle emissions budeets. if such budeets are established bv the EPA rule ma kin^ that determines that the area has clean data for the 8-hour ozone NAAOS. E. 

### - 8-hour ozone NAAOS nonattainment and maintenance areas with motor vehicle emissions budgets for the 1-
tion ofthe 8-hour nonattainment area. This provision applies one (1) vear after the effective date of EPA's nonattainment desjgnation for the 8-hour ozone NAAOS for an area. according to Subsection D of Section 2.20.99.109 NMAC. In addition to the criteria listing inTable 1in Subsection B of this section (2.20.2.128 NMACI that are 

### reauired8-hour ozone nonattainment and maintenance areas conformitv determinations must include a demonstration that the budg### Register / 

### Volume XVI, 

### Number 18

et and/or interim emissions tests are satisfied as described in the followine. (1) In such 8-hour ozone nonattest must be satisfied as reauired bv Section 20.2.99.137 NMAC for conformitv determinationsmade on or after: (a) the effective date of EPA's finding that a motor vehicle emissions bs im~lementation plan revision or maintenance plan for the 8-hour ozone NAAOS is adeauate for transportation conformitv pur- (b) the publication date of EPA's approval of such a budeet in the federal register: or (c) the effective date of EPA's apvroval of such a budeet in the federal register. is such approval is completed through direct final rulemaking. (2) Prior to Paragraph (1) or Notwithstanding. NMAC) a~plving.the followine test(s) must be satisfied. subiect to the exception in Subparagraph (e) of Paraaraph (2) of Subsection E of this section (20.2.99.128 NMAC), (a)If the 8-hour ozone nonattainfurtherentarea covers the same geographic area as the I -hour ozone nonattainment or maintenance area(sI


## .the budget test as reauired bv Section 20.2.99.137 NMAC using the ap~rovedor adeauate motor vehicle emissions budgets in the I-hour ozone auplicable implementation plan or implementation plan submission. 

### (p ment area covers a smaller geoma~hic area 

### within maintenance area(s). the budget test as reauired bv Section 20.2.99.137 NMAC for either the 8-hour nonattainment area using -of the avproved or adeauate motor vehicle emissions budgets in the I -hour ozone applicable imdementa

## tionsion where such ~ortion(sI can reasonably be identified through the interaeencv con

## sultationDrocess 20.2.99.116 NMAC : or the 1-hour nonattainment area using the approved or adeauate motor vehicle emissions budgets in the 1-hour ozone applicable im~lementation plf

sarv to meet the budget test for the 8-hour



### OK sions reductionsmu$-hour nonattainment area. 

### [If ment area covers a lareer geoera~hic area p-~d encompasses the entire 1-hour ozone nonattainment or maintenance areafsI the budeet test as reauired bv Section 20.2.99.137NMAC for the or ti on of the 8- hour ozone nonattainment area covered bv

### New Mexico Register / 

### Volume XVI, Number 

### 18 / 

### September

### 30,2005 1013

- tation ~lan or plan submission that is a~plicable for the Durposes of conformitv determinations is a fifteen Dercent 115%)plan or pther control strateev SIP that addresses reasonable further Droeress that does not include a motor vehicle emissions budeet for NOx. The im~lementation ~lan for the 8-hour ozone NAAOS will be considered to establish a motor vehicle emissions budeet for NOx if the im~lementation plan or plan ] 

### p act as a ceiling on future NOx emissions, and the NOx motor vehicle emissionsbudeet is a net reduction from NOx emissions levels in 2002. Prior to an adeauate or a~~roved NOx motor vehicle emissions 

### -budget in the implementation plan submission for the 8-hour ozone NAAOS, the implementation ~lan for the I-hour ozone NAAOS will be considered to establish a motor vehicle emissions budget for NOx if 

### - the im~lementation olan contains on explicit NOx motor vehicle emissionsbudget that is intended to act as a ceiline on futureNOx emissions. and the NOx motor vehicle emission budeet 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 vears of clean data for the 8-hour ozone NAAOS that have not submitted a maintenance ~lan and that EPA has determined are not subiect to the Clean Air Act reasonable further promess and attainment demonstration reauirement for the 8- hour ozone NAAOS must satisfv one of the followine requirements: (a) the budeet test andlor interim emissions tests are reauired bv Sections 20.2.99.137 NMAC and 20.2.99.138 NMAC and asdescribed in Paraeraph (21of Subsection E of this section (20.2.99.128 NMAC): (bl the budeet test as required by Section 20.2.99.137 NMAC. using the adeauate or av~roved motor vehicle emission budeets in the submitted or ap~licablecontrol strategv implementation plan for the 8- hour ozone NAAOS (subiect to the timing requirements of Paraeraph (11 of Subsection E of 20.2.99.128 NMAC: or (c! the budget test as reauired by Section 20.2.99.137 NMAC. usine the motor vehicle emissions of ozone precursors in the most recent vear of clean data as
budeets are established bv the EPA rulemaking that determines that the area has 

## r [WE. 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 nonattainrnent and maintenance areas conformity determinations must include a demonstration that the hot spot, budget andlor interim emissions 

### [-I tests are satisfied as described in the following. (1) FHWAFTA 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 COattainment demonstration or maintenance plan is approved by US EPA, FHWAFTA projects must also satisfy the hot spot test required by SubsectionB of 20.2.99.135 NMAC. (2) In CO nonattainment and maintenance areas the budget test must be satisfied as required by 20.2.99.1 37 NMAC for conformity determinations made 

### after: (a) 

### [W

-1 the effective date of EPA's finding that a motor vehicle emissions budget in a submitted control strategv imvlementation plan revision or maintenance plan is adeauate for transportation conformity purpos- (b) [-



### -1 the ~ublication date of EPA's ap~roval of such a budget in the federal register: or [c) the effective date of EPA's a~~roval of such a budnet in the federal register. if such ap~roval is completed through direct final rulemakine. (3) Except as provided in Paragraph (4) of Subsection 

### [I+] Eof 20.2.99.128 NMAC, in CO nonattainment areasthe interim emissions 

### [-I tests must be satisfied asrequired by 20.2.99.138 NMAC for conformity determinations made when there is no a~proved motorvehicle emissions budget from an applicable implementation plan and no adequate motor vehicle emissions budeet from a sub

### 1- (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 [F&F+ (ieR] tests required by 20.2.99.138 NMAC; or @) the department shall submit to US EPA an implementation plan revision that containsmotor vehicle emissionsbudget(~) and an attainment demonstration, and the budget test required by 20.2.99.137 NMAC must be satisfied using the [&&- 

## a] adeauate or a~~roved motor vehicle emissions budget(s) (as described in Paragraph (2) bf Subsection 

### [I+] E of 20.2.99.128NMAC). 

### [&]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 determinations must include a demonstration that the hot spot, budget andlor interim emissions [whetk~] tests are satisfied as described in the following. (1) FHWARTA 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 asrequired by 20.2.99.137 NMAC for conformity determinations made after: 

### -



### -1 the effective date of EPA's finding tn 

# : pp ap @) [-



### -1 the ~ublication date of EPA's approval of such a budeet in the federal register: or [cl the effective data of EPA's approval of such abudeet in the federal reeister. if such approval is completed through

### New Mexico Register/ 

### Volume XVI, Number 18/ 

### Sep

-- - [G].lL. Isolated rural 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 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)FHWAFTAprojects in all isolated ruraI nonattainment and maintenance areas must satisfy the requirements of 20.2.99.129 NMAC through 20.2.99.13 1 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, FHWA/FTA projects must also satisfy the requirements of Subsection B of 20.2.99.135 NMAC ("Localized CO and PMlO violations (hot spots)"). (2) Isolated rural nonattainment and maintenance areas are subject to the budget and/or interim emissions [-I tests as described in Subsections C through [F] 1( of 20.2.99.128 NMAC, with the following modifications: (a) when the requirements of 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. (b) in isolated rural nonattainment and maintenance areas that are subject to 20.2.99.137 NMAC, FHWA/FTA projects must be consistent with motor vehicle emissions budget(s) for the years in the timeframe 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, FHWABTA projectsmust 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 

### [&%I 

### E 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 FHWA/FTA 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 20.2.99.1 17 NMAC and Paragraph (5) of Subsection C of 20.2.99.117 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, 10115/05]
20.2.99.129 CRITERIA AND PROCEDURES

## - LATEST PLANNING ASSUMPTIONS. A. Except as ~rovided in this paragra~h, [Tllhe 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 

### [d the conformity [8eeefmiw&e] analvsis beeins. The conformity determination must satisfy the requirements of Subsections B through F of 20.2.99.129 NMAC using the planning assum~tions available at the time the conformitv analvsis begins as determined throueh the interapencv consultation process required Subparagraph (a) of Paragra~h(1) of ) NMAC. The "time the conformitv analvsis ( determination in the point at which the
to model the im~act of the ~roposed trans- portation ~lan or TIP on travel and/or emis

### / after an analvsis begins is required to be used in the conformity determination onlv if a significant delav in the analvsis has occurred. as determined through interagencv 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, employment, travel, and congestion most recently developed by the MPO, or other agency authorized to make such estimates and approved by the MPO. The conformity determination must also be based
on the latest assumptions about current and future background concentrations. C. The conformity determination for each transportation plan and TIPmust 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 which have already been implemented. E Key assumptions shall be specified and included in the draft documents and supporting materials used for the interagency and public consultation required by 20.2.99.116 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, 10/1 5/05]
20.2.99.135 CRITERIA AND PROCEDURES 

## - LOCALIZED CO AND PMlO VIOLATIONS (HOT SPOTS). A. This paragraph applies at all times. The FHWABTA project must not cause or contribute to any new localized CO or PMlO violations or increase the frequency or severity of any existing CO or PMlO violations in CO and PMlO nonattainment and maintenance areas. This criterion is satisfied if it is demonstrated 

### that during the time frame of the transportation plan (or reeional emissions analysis) [ckac] no new local violations will be created and the severity ornumber of existing violations will not be increased as a result of the project. The demonstration shall be according to the consultation requirements of Subsection A of 20.2.99.120 NMAC and20.2.99.137 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 budg- 

### / 

### September 30,2005 id) for anv analvsis vears before the last vear of the maintenance ~lan.emissions must be less than or equal to the motor vehicle emissions budeetfs) established for the most recent orior vear. C. Consistency with the motor vehicle emissions budget(s) must be demonstrated for each pollutant or pollutant precursor 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 transportation 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 timeframe 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 [2%WW&] 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 ofthe transportation plan provided 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 the last year of the plan's forecast period. 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 per1016 

### New Mexico
the methodology requirements of 20.2.99.146 NMAC. B. This paragraph applies for CO nonattainment areas as described in Paragraph (1) of Subsection [Q] 

### E of 20.2.99.128 NMAC. Each FHWAIFTA project must eliminate or reduce the severity and number of localized CO violations in the area substantially affectedby the project (in CO nonattainment areas). This criterion is satisfied with respect to existing localized CO violations if it is demonstrated that 

### duringthe time frame ofthe trans~ortation plan (or reeional emissions analvsis) 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 10131/02; A, 10/15/05]
20.2.99.136 CRITERIA AND PROCEDURES 

# - COMPLIANCE WITH PMlO and PM2.5 CONTROL MEASURES. The FHWA/FTA 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 forthe project those control measures (for the purpose of limiting p~lo and ~~2.5 emissions from the construction activities and/or normal use and operation associated with the project) that are contained in the a~plicableim~lementation SIP. [12/14194; 11/23/98; 20'2'99'136 

### - Rn' 20 NMAC 2'99. 36 '/02; A' 1011 5/05]

et(~) in the applicable control strategy implementation plan (or implementation plan submission). This criterion applies as described in Subsections C through [GI

### L of 20.2.99.128 NMAC. This criterion is satisfied if it is demonstrated that emissions of

### Register / 

### Volume XVI, Number 18 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 trans~ortation ~lan) for the last year of the transportation plan's forecast period, and for any intermediate years 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 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 @) 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 budgetmust be less than or equal to the motor vehicle emissions budget(s) for the attainment Yea' (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 emissions budgets for any years other than the last year of the maintenance plan, the demonstration of consistency with the motor vehicle emissionsbudget(s) must be accompanied by aqualitative finding that there are no factors which would cause or

the pollutants or pollutant precursors described in Subsection C of 20.2.99.137 WACare 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 motor vehicle emissions budget(s) must be contribute to a new violation or exacerbate an existing violation in the years before thelast 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; [a&] (c) if an approved and/or submitcontrol 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 controlstrategy implementation plan's motor vehicle emissions budget(s) for these years[?] 1 and - formed. 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, [e&eg+



### -1 d 

## the However, 

### motorsubmitted implementation plans do not supersede

### New Mexico Registe the motor vehicle emissions budgets in approved implementation plans for same Clean Air Act reauirement and the period of years addressed by the previously approved implementation plan, unless US EPA s~ecifies otherwise in its approval of a SIP. 

### - (2) IfUS EPA has notdeclared 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. Consistencywith the previously established motor vehicle emissions budget(s) must be demonstrated. If there are no previouslyapproved implementation plans or implementation plan submissions with adeauate motor vehicle emissions budgets, the 

### inter- im emissions [fe$tteeieft] tests required by 

### - 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 [i+w+thm 

### -1 after US EPA had previously

found the budget!s) adequate. 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 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 minimum criteria are satisfied: (a) the submitted control strategyimplementation plan revision or maintenance plan was endorsed by the governor (or his orher 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 wasprovided 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 

### I

### Volume XVI, Number 18 I 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 (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 

### [M-1 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 DOT'S conformity determinationswill be deemed tobe 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. 

### F. - Adequacv review process for implementation plan submising section (20.2.99.137 NMAC) to review the adequacv of an im~lementation plan. [I) When US EPA reviews the adeauacv of an im~lementation plan submission ~rior to EPA's final action on the implementation ~lan: (a) US EPA will notifv the public 

## throunh receives an im~lementation plan submission that will be reviewed for adequacv; (b) the public will have a minimum of 30 davs to comment on the adequacy of the implementation plan submission: 

### September 30,2005 1017 if the complete im~lementation plan is not accessible electronicallv through the internet and a copv is reauested within fifteen (15) days of the date of the website notice, the comment period will be extended 30 davs from the date that a copv of the im~lementation plan is mailed; (c) after the public comment period closes. US EPA will inform the de~artment in writing whether US EPA has found the submission adeauate or inadequate for use in transportation conformitv. including response to anv comments submitted directIv and review of comments submitted through the department Drocess. or US EPA will include the determination of adequacy
or inadequacv in a proposed or final action a~proving or disapproving the implementalion plan under Suboaragraph (c) of Paragraph (2) of Subsection F of this section (20.2.99.137 NMAC1; (d) US EPA will publish a federal register notice to inform the public of US EPA's finding: if EPA finds the submission adeauate. the effective date of this finding will be fifteen (15) davs 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'l of Paragraph (2) for Subsection F for this section 120.2.99.137 NMACL (e) US EPA will announce whether the im~lementation ~lansubmission is adequate or inadequate for use in transportation conformitv on US EPA's website: the website will also include US EPA's resDonse to comments of anv comments were received during the vublic comments ~eriod; L_n if after US EPA has found a submission adeauate. US EPA has cause to reconsider this finding. US EPA will reDeat actions described in Sub~araera~hs (a) through (e) ofParaera~h (1'1 of Subsection F or Paraera~h(2) of Subsection F of ( p(f the implementation plan submission; in all 

### p findinp to a finding of inadequacv under Paragraofh (1) of Subsection F of 20.2.99.137 NMAC. such a findine will become effective immediatelv u~on the date 

### p, &) if after EPA has found a sub

### fi reconsider the adeauacv of that budget. US EPA will re~eatactions described in sub~arama~hs (a)through (e) of Paramaoh (1) of this section (20.2.99.137 NMAC). (2) When US EPA reviews the adeauacv of an im~lementation olan submission simultaneouslv with US EPA's a~~roval or disao~roval of the imolementa-

### / 

### September30,2005 

## (p values less than 12.7 ppm and not classified CO nonattainment areas if a regional emissions analvsis that satisfies the reauirements of Sections 20.2.99.141 NMAC throueh 20.2.99.147 NMAC and Subsections G

strates that for each analvsis vear 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 meater than the 

### 0 nano. and this can be reasonablv expected
sis vears: or @)-the emissions ~redicted in the "action" scenario are not meater than 1990 emissions. [G]D. This criterion may be met in PMlO and NO2 nonattainment areas[- X f ecpew&
satisfiesthc p- 

## 1 -1 if a regional emissions analysis that satisfies the requirements of 20.2.99.141 NMAC through [2&W!WE] 20.2.99.147 NMAC and Subsections [S] .]through 

### [W] 

### 2 of 20.2.99.138 NMAC demonstrates that for each analysis year and for each of the pollutants described in Subsection [Q] 

### E of 20.2.99.138 NMAC, one of the following requirements is met: (1) the emissions predicted in the "action" scenario are [b] 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 PMlO 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 mavbe met in PM2.5 nonattainment 

## 1 satisfies the reauirements of Sections 20.2.99.141 NMAC through 20.2.99.147 NMAC and Subsections G throueh J of
each analvsis vear and for each of the ~ollurf hg requirements is met: (1) the emissions predicated in 1018 

### New Mexico
tion ~lan: 

### (a) notice of proposed or direct final rulemakine will serve to notifv the public that US EPA will be reviewing the implementation plan submission for adeauacv; [bl the publication of the notice of provosed rulemakin? will start a public comment period of at least thirtv (30) davs; [c) US EPA will indicate whether the implementation plan submission is adeeither in US EPA's final rulemakine or throueh the process described in Subparagraphs (cl through (e) of Paragraph (1) of Subsection F of this section [20.2.99.137 NMAC): if US EPA makes an adeauacv findine through a final rulemaking that approves the implementation plan submission. such a finding will become effective upon the publication date of US EPA's approval in the federal reeister. or uDon the effective date of US EPA's approval if such action is conducted through direct final rulemaking: US EPA will res~ond to comments received directlv and review comments submitted throu~h the department process and include the 

### resDonse 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]
20.2.99.138 CRITERIA AND PROCEDURES 

## - [- RQNSj INTERIM EMISSIONS IN AREASWITHOUT MOTOR VEHICLE EMISSIONS BUDGETS. A. The transportation plan, TIP, and project not from a conforming transportation plan and TIP must [em-

. . 

### -1 satisfv the interim emissions test(s) as described in Subsections C throueh L of 20.2.99.128 NMAC. This criterion applies [edesdd 

### -1 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



# r B of 20.2.99.138 NMAC) ap~lv to all 1- hour ozone and 8-hour ozone NAAOS areas. except for certain reauirements as indicated. This criterion may be met. ui]Jn moderate and above ozone nonattainment areas that are subject to the reasonable further progress requirements of CAA Section 182(b)(l) [eR8iff

if a regional emissions analysis that satisfies the requirements of 20.2.99.141 NMAC through [204994%]20.2.99.147 

### Register / 

### Volume XVI, Number 18
NMAC and Subsections [S] 

### .I through [W] 

### US of 20.2.99.138 NMAC demonstrates that for each analysis year and for each of the pollutants described in Subsection 

### [q E of 20.2.99.138 NMAC: [+lj]@J 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

### [@+I@.) the emissions predicted in the "action" scenario are lower than 1990 emissions by any nonzero amount, in areas for the I-hour ozone NAAOS as described in Subsection C of section 20.2.99.128 Npy
ozone NAAOS as described in Subsections D and E of 20.2.99.128 NMAC. (2) In marginal and below ozonenonattainment areas and other ozone nonattainment areas that are not subiect to the rDf tt 

### Demissions reauirements of Section 20.2.99.141 rd Subsection G throueh J of 20.2.99.138 NMAC demonstrates that for each analvsis year 

### (a) "action" scenario are not meater than the 

### emissions nario. and this can be reasonablv expected to be true in the periods between the analvsis vears: or @) 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 20.2.99.128 NMAC ;or the 2002 emissions, in areas for the 8-hour ozone NAAOS as described in Subsections D and E for 20.2.99.128 % 

### !2 CO areas. This criterion mav be met: (1) in moderate areas with desim values greater than 12.7 Dpm and serious CO nonattainment areas that are subiect to Clean Air Act Section 187(a)(71if a regional emissions analvsis that satisfies they reauirements of Sections 20.2.99.141 NMAC throueh 20.2.99.147 NMAC and
NMAC demonstrates that for each analvsi~ year and for each of the vollutants described in Subsection F of 20.2.99.138 NMAC: (a] the emissions predicted in the "action" scenario areless than the emissions pp this can be reasonablv expected to be true in the ~eriods between the analvsis vears: and (bldinthe "action" scenario are lower than 1990 emissions bv anv nonzero amount.

### New Mexico Register / 

### Volume XVI, Number 18 / 

### September 30,2005 1019
at a future time unless the regulation is already adopted by the enforcingjurisdiction 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 implementation plan or utilizing any federal funding or approval, which have been fully adopted andor 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 and/or funded prior to the date of the last conformity determination, but which have been modified since then to be more stringent or effective; (5) completion of all expected regionally significant highway and transit projects which are not from a conforming transportation plan and TIP; and (6) completion of all expected regionally significant non-FHWAJFTA highway and transit projects that have clear funding sources and commitments leading toward their implementation and completion by the analysis year. [IIIJ. Projectsnot from a conforming transportation plan and TIP. For the regional emissions analysis required by Subsections B and [€I 

### E of 20.2.99.138 NMAC, 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 2.99.13 8 10/31/02; A, 10/15/05]
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 

## the the emissions vredicted in the "baseline" scenario, and this can be reasonablv exvected to be true in the ~eriods between the analvsis vears: or (2) the emissions predicted in the "action" scenario are not greater that 2002 emissions. [@IF. 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) PM 10 in PM 10 areas; (5) [- 

# ,..,,,,, -1 VOC and/or NOx in
areas if the US EPA regional adminisbator or the department has made a finding that such precursor emissions from within the area are a significant contributor to the PM10 nonattainment problem and has
so notified the MPO and US DOT; [&I (6) NOx in NO2 areas; (7)PM2.5 areas: and (8) reentrained road dust in PM2.5 areas onlv if the US EPA regional 

### administrator finding that emissions from 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. [GIG. Analysis years[+]

# . aThe regional emissions analysis must be performed for analysis years that are no more than ten (10) years apart. Thefirst analysis year must be no morethan five (5) years beyond the year in which the conformity determination is being made. The last year of transportation plan's forecast period must also be an analysis year. L2) For areas using Subparagraph (a) of Paragraph (2) of Subsection B of Section 20.2.99.138 NMAC. Subparagraph La) 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 ~f Section 20.2.99.138 NMAC. a regionalemissions analvsis 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 reauired for proiects and planning assumptions in the "action" and "baseline" scenarios are exactIv the same. In such a case. Subsection A of Section 20.2.99.138 NMAC can be satisfied bv documentingthat the transportation pro+ ects and planning assumptions in both scenarios are exactlv the same. and conseauentlv. the emissions predicted in the "action" scenario are not greater than the emissions vredicted in the "baseline" scenario for such analvsis vears. [F]H. "Baseline" scenario. Theregional emissions analysis required by Subsections B and 

### [€I 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 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 ongoing travel demand management or transportation system management activities; and (3) completion of all regionally significant projects, regardless of funding source, which are currently under construetion 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 andor TIP; or have completed the NEPA process. [G]I. "Action" scenario. The regional emissions analysis required by Subsections B and [€I 

### 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 implementation of the proposed action (transportation plan, TIP, or project not from a conforming transportation plan and TIP) and all other expected regionally significant projects in the nonattainment 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 20.2.99.149 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

### / 

### September 30,2005

most recent conformity determination [& 

### cke]that reflects the portion of the statewide transportation plan and TIPwhich 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 significant projects expected in the nonattainment or maintenance area demonstrates that those projects in the statewide transportation plan and statewide TIPwhich are in the nonattainment or maintenance area would still conform ifthe project were implemented (consistent with the requirements of 20.2.99.137 NMAC andlor 20.2.99.138 NMAC for projects not from a conforming transportation plan and TIP). C. 

### - Notwithstanding SubsectionsA and B of Section 20.2.99.140 NMAC. in nonattainment and maintenance areas subiect to Subsections J or K of Section 20.2.99.128 NMAC for a given pollutant/precursor and NAAOS. no recipient of federal funds designated under title 20 bpt or approve a recrionallv simificant hiehway ~g source. Unless the reci~ient finds that the requirements of one of the follow in^ are 

### fi NAAOS: (1) the project was included in the most recent conformitv determination for the transtheortationplan and TIP and the project's desien concept and scope has not changed significantlv: or (2) the proiect as included in the most recent conformitv determination that portation vlan and statewide TIP which are in the nonattainment or maintenance area, and the vroiect's design concept and scow has not changed sipificantlv. [12/14/94; 11/23/98; 20.2.99.140 NMAC 

### - Rn, 20 NMAC 2.99.140 10/31/02; A, 10115/05]
20.2.99.143 PROCEDURES FOR DETERMINING REGIONAL TRANSPORTION- RELATED POLLUTION EMISSIONS 

## - TWO-YEAR GRACE PERIOD FOR REGIONAL EMISSs 

### 1 I CER I The reauirements of 20.2.99.142 NMAC auplv in such areas or ~ortions of such areas that have not previouslv been required to 

## fl

- A. the effective date ofUS EPA's reclassification of an ozone or CO 

## fi
areapopulation ereater than 200.000 to serious or above; 

### & the official notice bv 

## fi 1020 

### New Mexico

to this submission is determined. (2) If US EPA disapproves a submitted control strategy implementation plan revision without making a protective find-

. . in, [ 

### -1 only projects in the first theemyears of the currently conforming transportation plan and TIP may be found to conform. This means that beginning 

### [F



### rl?n\ -1 on the effective date of a

disap~roval without a protective finding, no transportation plan, TIP, orproject not in the first threemears of the currently conforming plan and TIPmay be found to conform until another control strategy implementation plan revision fulfilling the same Ch Ab Ad requirements is submitted

.. . [[

1'

. 

### . 

### 1.------..-.'

. . fi 

## 9

.. . 

### C---'-. Nb#&], US EPA finds its motor vehiclc emissions budget(s) adequate pursuant t~ Section 20.2.99.137 NMAC or amroves the 

## submission. mentation 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 179or 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(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 

### Register / 

### Volume XVI, Number 18
vehicle emissions budget(s) as a result of a department failure, the conformity 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 10131/02; A, 10/15/05]
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 NMAC, 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 from the currentlv conforming transportation plan and TIP[-

I .I . . 

# ~ g--\ 

### hp+] and the project's design concept and scope &w] not changed significantly from those analyses for that transp-; or (2) the ~roiect is included in the rD andconformine transportation plan and TIP conformitv determination (even if the proiect is not strictlv included in the transporta

## tion project selection or endorsement) and the project's desim concevt and scope have not 

### chanced
analvsis: or 

### [&I@[- 

## I] 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 ifthe project were implemented (consistent with the requirements of 20.2.99.137 NMAC andlor 20.2.99.138 NMAC for a project not from a conforming transportation plan and TIP). B. In isolated rural nonattainment 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 approve a regionally significant highway or transit project, regardless offunding source, unless the recipient finds that the requirements of one of the following are met: (1) the project was included in the regional emissions analysis supporting the

### New Mexico Registe
urbanized area ~opulation 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 newlv designated ozone or CO nonattainment area that has an urbanized area ~opulation 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] [2O&WA3j 20.2.99.144 P R 0 C E 

## - DURES FOR DETERMINING REGIONAL TRANSPORTATIONRELATED 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 of those 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, 10/31/02; 20.2.99.144 NMAC 

### - Rn, 20.2.99.143 NMAC, 10115/05] [- 20.2.99.145 P R 0 C E 

## - DURES FOR DETERMINING REGIONAL TRANSPORTATIONRELATED POLLUTANT EMISSIONS



### - PMlO FROM CONSTRUCTIONRELATED 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 PM 10 emissions associated with highway and transit project construction are not required to be considered in the regional emissions analysis. B. In PMI0nonattainment and maintenance areaswith implementation plans which identify construction-related fugitive PMlO as a contributor to the nonattainment problem, the regional PMlO emissions analysis shall consider constructionrelated fugitive PMlO and shall account for the level of construction activity, the fugitive PMlO control measures in the SIP, and the dust-producing capacity ofthe proposed activities. 

### / 

### Volume XVI, Number 18 / 

### Sep [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, 10115/05]
20.2.99.146 PROCEUDURES FOR DETERMINING REGIONAL 

### 0 LUTANT EMISSIONS 

### -PM2.5 FROM CONSTRUCTION 

## - RELATED FUGI-
A. 

### - For PM2.5 areas in which the im~lementation plan does not identifv 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 analv- sis. - B. - In PM2.5 nonattainment and maintenance areas with im~lementation plans which identifv construction-related fugitive PM2.5 as a significant contributor to the nonattainment ~roblem, the regional PM2.5 emissions analvsis shall consider construction-related fugitive PM2.5 and shall account for the level of construction activitv. the fugitive PM2.5 control measures in the applicable implelg ca~acitv of the proposed activities. [12/14/94; 1 1/23/98; 20.2.99.146 NMAC 

### - Rn, 20 NMAC 2.99.146, 10/31/02; 20.2.99.146 NMAC 

### - N, 10/15/05] [2&WM4l 20.2.99.147 P R 0 C E 

## - DURES FOR DETERMINING REGIONAL TRANSPORTATIONRELATED POLLUTANT EMISSIONS

- RELIANCE ON PREVIOUS REGIONAL EMISSIONSANALYSIS. A. 

### [The] Conformity determinations for a new trans~ortation plan and/or TIPmaybe demonstratedto 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 [eke+ 

### -1 if the previous regional emissions analvsis also applies to the new plan andlor TIP. This requires a demonstration that: (1) the new plan andlor TIP contains all projects which must be started in the plan and TIP's timeframes 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 andlor TIP's regional emissions at the time of the 

# [v e] previous conformity determination; and (3) the design concept and scope of each regionally significant project in the new plan and/or TIP [k] 

### are not significantly different from that described in the& ous transportation plan[~]d - (41 the ~revious reeional emissions analysis is consistent with the reauirements of Section 20.2.99.137 NMAC (including that conformity to all currently applicable budgets is demonstrated) andlor Section 20.2.99.138 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 fundsto the project will not delay the implementation of projects in the transportation plan or TIPwhich are necessary to achieve the highway and transit system envisioned by the transportation plan, previous regional emissions analvsis is still consistent with the requirements of Section 20.2.99.137NMAC (including that conformity to all currently applicablebudgets is demonstrated) and/or 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 conformitv determination that relies on this section (20.2.99.147 NMAC) does not satisfy the frequencv reauirements of Sections 20.2.99.112 NMAC and 20.2.99.113 NMAC. [12/14/94; 11/23/98; 20.2.99.147 NMAC 

## - Rn, 20 NMAC 2.99.147, 10/31/02; 20.2.99.147 NMAC 

### - Rn, 20.2.99.145 NMAC &A, 10/15/05] [2&W!M4j 20.2.99.148 P R 0 C E 

## - DURES FOR DETERMINING LOCALIZED CO AND PMlO CONCENTRATIONS (HOT-SPOT ANALYSIS). A. CO Hot-spot Analysis. (1) The demonstrations required by 20.2.99.135 NMAC 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

### 1022 

### New Mexico Register/ 

### Volume XVI, Number 18/ 

### September30,2005 Models"). These procedures shall be used in the following cases, unless, different procedures developed through the interagency consultation process required in 20.2.99.116 NMAC through 20.2.99.124 NMAC and approved by the EPA region 6 administrator are used: (a) for projects in or ~ecting 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; (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 

# I
(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 (I) of Subsection A of 20.2.99.146 NMAC, the demonstrations required by 20.2.99.135 NMAC may be based on either: (a) quantitative methods that represent reasonable and common 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. B. PMlO 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) projects which are located at 

# I

sites at which violations have been verified 

## 1 by monitoring; (b) projects which are located atsites which have vehicle and roadway emission and dispersion characteristics that are 

# I
essentially identical to those of sites with verified violations (including sites near one 

# I

at which a violation has been monitored); and 

# I (c) new or expanded bus and rail terminals and transfer points which increase the number of diesel vehicles congregating at a single location. (2) Where quantitative analysis methods arenot required, the demonstration required by 20.2.99.135 NMAC may be based on a qualitative consideration of local factors. (3) The identification of the sites described in Subparagraphs (a) and (b) of Paragraph (1) of Subsection B of 20.2.99.146 NMAC and other cases where quantitative methods are appropriate, shall be determined through the interagency consultation process required in 20.2.99.116 NMAC through 20.2.99.124 NMAC. US DOT may choose to make a categorical conformity determination on bus and rail terminals or transfer points based on appropriate modeling of various terminal sizes, configurations, and activity levels. (4) The requirements of this Subsection B of 20.2.99.146 NMAC for quantitative analysis will not take effect 

# 1 until EPA releases modeling guidance on

this subject and announces in the federal 1 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 shallinclude the entire project, and may be performed only after the major design featureswhich will significantly impact concentrationshave been identified. The futurebackground 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) PMlO or CO mitigation or control measures shall be assumed in the hot-spot analysis only where there arewritten commitments from the project sponsor or operator to implement such measures, as required by Subsection A of 20.2.99.148 NMAC. (5) CO and PMlO 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. ~emborar~ 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 

## - Rn, 20 NMAC 2.99.148, 10/31/02; 20.2.99.148 NMAC 

### - Rn, 20.2.99.146, 10115/05] [- 20.2.99.149 USING THE MOTOR VEHICLE EMISSlONS BUDGET IN THE SIP (OR IMPLEMENTATION PLAN SUBMISSION). A. In interpreting an SIP (or implementation plan submission) with 

### 1 respect to its motor vehicle emissions budget(~),the MPO (or [-] NMDOT inthe absence of an MPO) and the US DOT may not infer additions to the budget(s) that are not explicitlyintended 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 

### I intent that some or all of this additional

amount should be available to the MPO (or 

## ' [-I NMDOT in the absence of an MPO), and the US DOT, in the emission budget for conformity purposes, neither the MPO (or 

### [-I 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 from all sources will be less than the total emissions thatwould 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, andlor 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.



### -1 [GI& 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. 

### PIC If the applicable SIP (or implementation plan submission) estimates future emissions by geographic subarea of

### New Mexico Register/ 

### Volume XVI, Number 

### 18/ 

### September 30,2005 1023
the nonattainrnent area, the MPO (or [the &MHTES1NMDOT in the absence of an MPO), and the US DOT are not required 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. 

### [&ID. 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. ['12/14/94; 11123198; 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, 10115/05] 

### 1- 20.2.99.150 ENFORCEABILITY OFDESIGN CONCEPTAND SCOPE AND PROJECT-LEVEL MITIGATIONAND 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 and/or operator written commitments to implement in the construction of the project and operation of the resulting facility or service any projectlevel mitigation or control measures which
are identified as conditions for NEPA process completion with respect to local PMlO or CO 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 TIP 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 tofacilitate 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 MPO 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 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 sonotifies the agencies involved in the interagency consultation process required under 20.2.99.116 NMAC through 20.2.99.124 NMAC. The MPO (or [-] NMDOT in the absence of an MPO) and USDOT 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 satisfiesthe requirements of 20.2.99.135 NMAC and therefore that the conformity determinations for the transportation plan, TIP, 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; 11/23/98; 20.2.99.150 NMAC 

### - Rn, 20 NMAC 2.99.150, 10/31/02; 20.2.99.150 NMAC 

### - Rn, 20.2.99.148 NMAC & A, 10/15/05] 

# [w 20.2.99.151 E X E M P 

## - TIONS. 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. Aparticular action of the type listed in Table 2 (of this section) is not exempt 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. [Ute 

### -1 NMDOT and the MPO, 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) hazard elimination program; (c) safer non-federal-aid system roads; (d) shoulder improvements; (e) increasing sight distance; (f) safety improvement program; (g) traffic control devices and operating assistance other than signalization projects; (h) railroadlhighway crossing warning devices; (i) guardrails, median barriers, crash cushions; (j) pavement resurfacing or rehabilitation; (k) pavement marking demonstration; (1) emergency relief (23 U.S.C. 125); (rn) fencing; (n) skid treatments; (0)safety roadside rest areas; (p) 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 PMlO 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-of-way; (j) purchase of new buses and rail
cars to replace existing vehicles or for minor expansions of the fleet (In PMlO nonattainment or maintenance areas, such projects are exempt only if projects are in compliance with control measures in the SIP.); (k) construction of new bus or rail storage/maintenance facilities categorically excluded in 23 CFR 771. (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 technical studies; (ii) grants for training1024 

### New hlexico Register / 

### Volume 

### XVI, Number 18 1

### September 30,2005
and research programs; (iii) planning activities conducted pursuant to titles 23 and 49 U.S.C.; or (iv) 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) emergency or hardship advance land acquisitions (23 CFR [W] 

### 710



### [*I 503); (e) acquisition of scenic easements; (f)plantings, landscaping, etc.; (g) sign removal; (h) directional and informational Rn, 20 NMAC 2.99.151, 10/31/02; 20.2.99.151 NMAC 

### - Rn, 20.2.99.149 NMAC & A, 10115/05] [2O&W&@l 20.2.99.152 T R A F F I CSIGNAL SYNCHRONIZATION PROJECTS. Traffic signal synchronization projects may be approved, funded, and implemented without satisfying the requirements ofthis 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. [20.2.99.152 NMAC 

### - Rn, 20.2.99.150 NMAC, 10/15/05] 

## , 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 SIPrequirements 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]



### NEW MEXICO

tion of historic transportation buildings, signs; (i) transportation enhancement activities (except rehabilitation and operastructures, or facilities); (j) repair of damage caused by natural disasters. civil unrest. or terrorist 20.2.99.153 TIONS FROM 

# spEy
ONFORMITY

acts, except projects involving substantial functional, locational, or capacity changes. - - --- 

### DEPARTMENT 

### OF GAME AND FISH

B. Projects exempt from regional emissions analyses. ~otwithstandin~ the other requirements of this part, highway and transit projects ofthe 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 or PMlO concentrations must be considered to determine if a hot-spot analysis is required prior tomaking a project-level conformity determination. These projects may then proceed to the project development process even in the absence of a conforming transportation plan andTIP. A particular action ofthe 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; 1 1/23/98; 20.2.99.15 1 NMAC 

### - 5y 

### y t-rom certain reauirements of this subpart if these areas are selected to pi ap ments that have been avvroved bv EPA as an implementation vlan revision in accordance with 40 CFR Dart 51.390. For the duration of the pilot program. areas selected to particivate in the ~ilot vroerarn must 

## 1 of the pilot area's imvlementation plan revi- 

# I

cr
are not covered bv the ~ilot area s I~D ,. le

# ~ 51.390. The alternative conformitv reauire-
~e state and/or federal conformity reauirements must be proposed to fulfill all of the 

### fi lent to or better than Section 1761~) of the Clean Air Act. After the three-vear duration of the vilotvrogggf f, and/or to the requirements of anv implementation plan revision that was previously 

## yo CFR Dart 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 This is an amendment to 19.31.3 NMAC, Section 11, Subsection N, effective September 30,2005. 

# 1 19.31.3.11 RESTRICTIONS: A. One license per big game species per year: It shall be unlawful for anyone to hold more than onepermit or license for any one big game speciesduring the current license year unless otherwise allowed by rule. B. Valid dates of license
orpermit: All permits or licenses shall be valid only for the specified dates, legal sporting arms, bag limit and area. Except that a permit or license will be valid on the contiguous deeded land of private property that extends into an adjacent GMU or AMU, that is open to hunting for that species, when the license holder is in possession of current, valid written permission from the appropriate landowner. This exception shall only apply when the adjacent unit has the same restrictions as to weapon type, bag limit, season dates and license availability. C. Rocky Mountain bighorn sheep

## - oncein-a-lifetime hunts: It shall be unlawful for anyone to apply for a Rocky Mountain bighom sheep license if
one has previously held a license to hunt Rocky Mountain bighorn sheep in New Mexico, including the youth-only bighorn hunt. However, a person that has received the youth-only license is allowed to apply for the regular once-in-a lifetime bighorn hunts as long as they are eligible. Exception: An applicant is eligible to submit abid for the special bighom auction and raflle licenses whether or not helshe has previously held a license to hunt Rocky Mountain or desert bighorn sheep in New Mexico. D. Desert bighorn sheep-a 

### New Mexico Registel once-in-a-lifetime: It shall be unlawful for anyone to apply for a desert mountain bighorn sheep license if one has previously held a license to hunt desert mountain bighorn sheep in New Mexico. Exception: An applicant is eligible to submit a bid for the special bighorn auction and raffle licenses whether ornot helshe has previously held a license tohunt Rocky Mountain or desert bighorn sheep in New Mexico. E. [RESERVED] 

### E Ibex 

## - once-in-a-lifetime: It shall be unlawful for anyone to apply for a once in a lifetime ibex license if helshe ever held a once in a lifetime license to hunt ibex. Youth ibex hunts, year-round off-mountain hunts, and hunts for female or immature (FIM) ibex, as designated in 19.31.8 NMAC, are not once-in-a-lifetime hunts. G Oryx 

## - once-in-a lifetime: It shall be unlawful, beginning April 1, 1993, for anyone to apply for an oryx license if helshe ever held a "once-in-a-lifetime" license to hunt oryx. Exception: Depredation population reduction oryx hunts, youth oryx hunts and incentive hunts are not once-in-a-lifetime hunts. H. Valle Vidal (as described in Subsection A of 19.30.4.11 NMAC) :(I) It shall be unlawful for anyone to apply for a license to hunt bull elk on the Valle Vidal if helshe has ever held a license allowing them to take a bull elk on the Valle Vidal since 1983. Thisrestriction appliesto all licenses valid for a bag limit of mature bull (MB) , either sex (ES) or mature bulllantlerless (MBIA). It shall be unlawful for anyone to apply for a license to hunt antlerless elk on the Valle Vidal if helshe has ever held a Valle Vidal elk license valid for a bag limit of antlerless since 1983. Either sex (ES) or mature bulllantlerless (MBIA) shall not be considered as an "antlerless" license for this restriction. Persons who have held a Valle Vidal elk license through any incentive program are exempt from this restriction. (2) It shall be unlawful to hunt bear on the Valle Vidal except for properly licensed bear hunters that possess a Valle Vidal elk hunting muzzleloader, bow, or rifle license and only during the dates ofthe elk hunt specified. Use of dogs shall not be allowed for bear hunting on the Valle Vidal. I. Transfer of permits or licenses: It shall be unlawful to transfer permits or licenses to other persons, areas, or other hunt periods except aspermitted by regulation adopted by the state game commission. J. Refunds will not be made for any license or permit after it has been awarded or issued except as permitted by regulation adopted by the state game 

### / 

### Volume XVI, Number 18/ 

### Sepl commission. K. More than one application: It shall be unlawful to submitmore than one application per species for any license issued through a special drawing, unless otherwise permitted by regulation. Exception: An individual may apply for both a population reduction hunt on public or private land and a special drawing hunt. However, an applicant shall follow the application procedures outlined in 19.31.3.8 NMAC. L. Deer hunts: It shall be unlawful for any person who is issued a deer hunting permit: (1) to hunt with any sporting ms type other than that for which hisher deer is validated; (2) to hunt during any season other than that for which hisherdeer permit is validated; (3) to hunt in any GMU other than that for which hisher deer permit is validated; (4) to hunt deer on public land in any GMU with a private land deer permit, except in conjunction with this subsection, if it is on state land where there is a valid agreement for unitizing state leased and privately owned or leased lands; or (5)to hunt private property without possessing a valid deerpermit, the proper deer license and written permission. M. Handicapped fishing or handicapped general hunting license qualifications: To hold ahandicapped fishing or handicapped general hunting license, the individual must be a resident of New Mexico and must show proof of a severe disability by reason of one or morephysical disabilities resulting from amputation, arthritis, blindness, bum injury, cancer, cerebral palsy, cysticfibrosis, muscular dystrophy, musculoskeletal disorders, neurological disorders, paraplegia, quadriplegia and other spinal cord conditions, sickle cell anemia, and end-stage renal disease, or who has a combination of permanent disabilities which cause comparable substantial functional limitation. Reasonable accommodation will be made, relating to these licenses, upon request. N. 

### [-I Mobilitv impaired (MI) deer. elk orantelope license qualifications: To hold a [hm&eppk] mobilitv im~aired deer. elk or antelope license, 

# [v -1 a Derson must submit verifiable documentation on the proper department form that is attested to bv a certified medical ahvsician that the individual has a mobility restriction which limits their activity to a walker, wheelchair, or two crutches, or severely restricts the movement in both arms or who has a combination of permanent disabilities 

### !mber30,2005 1025 which cause comparable substantial functional limitation and then obtain department a~~roval for MI hunt eligibilitv. (1) Everv Derson aualified as MI shall have their card/elieibilitv expire 48 months from the department's a~~roval date or issuance date. whichevcation and obtain de~artment approval as reauired above arior to bein? eligible to aa~lv for any MI hunt. (2) All current MI card holders shall havetheir card ex~ire on March 15, 2007 and must resubmit on the proper aeoartment form and obtain department ao~roval ~rior to being eligible to apply for MI designated hunt codes. 0. One deer permit per year: It shall be unlawful for anyone to hold more than one deer permit during the current license year. I P. Youth hunts: Only

applicants who have not reached their 18th birthday by the opening day of the hunt are eligibleto apply for or participate in a youth only hunt. Applicant for firearm hunts must provide hunter education certificate number
on application. 

### Q. Bear entry hunt: It shall be unlawful to hunt bear in designated wildlife areas without having a valid bear entry permit and a valid license in the hunter's possession. Bear entry hunters shall be allowed to hunt any other bear hunt provided they have a valid license and tag. An individual making license application shall supply the depart

# I

R- 1 ment on the appropriate form with all

required personal information including, 

### 1 but not limited to name, address, date-ofI birth, last four digits of hisher social security number prior to an application form being processed or a license being awarded. S. It shall be unlawful to hunt pheasant in Valencia county without possessing a valid pheasant permit, the proper license and written permission. (1) Exception: A hunter with a Valencia county pheasant north hunt or south hunt area permit is not required to have written permission for these specific hunt areas. (2) It is unlawful for a hunter that successfully draws aValencia county pheasant north hunt or south hunt to hunt any other area or property outside of the designated hunt area in Valencia county that same season. T. GMU 4 and 5A private land only hunts: Deer hunt applicants in GMUs 4 and 5A must obtain a special application from landowner. GMU 4 and 5A landowners may be required to provide proof of land ownership to obtain special application forms. U. Military only hunts:1026 

### New Mexico I Applicants must be full time active military and proof of military status must accompany application. [19.31.3.11 NMAC 

## - Rp, 19.31.3.11 NMAC, 12-30-04; A, 6-30-05; A, 9-30-051



### NEW MEXICO GAMING CONTROL BOARD

This is an amendment to 15.4.1 NMAC, Sections 1 and 7. This action also renumbers and reformats, as required by the current NMAC requirements, Regulation 28-3 (filed by Department ofAlcoholic Beverage Control, Bingo and Raffle Division on 03/21/1984). The amendment, renumbering and reformatting become effective 9/30/05.
15.4.1.1 ISSUING AGENCY: 

### [W -$ *-
. .. 

### -1 Sa! Mexico Gamine Control Board. [15.4.1.1 NMAC 

### - Rn, Regulation 2B-3 & A, 9/30/05]
15.4.1.7 DEFINITIONS: Definition of bingo and raffle termsrelating to Section 60-2B-3 NMSA 1978: asused in the Bingo and Rae Act and regulations promulgated there under: [&I 

### A. "approved record" means those records required by the Bingo and Raffle Act, or regulations promulgated there under which must be maintained on forms approved or furnishedby the [&pet+ 

### -1 board: B. 

### - Mexico gamine control board: [&I "cash operating fund" means the cash used by the licensee to start the bingo andjar raffle operations on each date; [GI

### D. "change fund" means the cash given to each bingo worker to use for making change; [%] 

### E. "extra cards" means other cards sold at the door along with the master card; this card is controlled by a separate color or size from the master card; this doesnot include special or paper disposable cards; 

### [&I F. "gross receipts" means,
as a supplement to the statutory definition, the total amount of money collected on sales from all bingo, raffles and jar raffles, broken down into gross for master cards, gross for extra cards, gross for specials, gross for raffles and gross for jar raffles; a written record of all bingo players shall be compiled for each separate occasion for one (1) year from the date of the occasion; (to include total cards purchased and monies received from said purchases); 

## [y G "house rules" means 

### egister / 

### Volume XVI, Number 11
rules established by each licensee for items not covered by the Bingo and Raffle Act, or regulations promulgated there under; the licensee shall not adopt rules in conflict with the Bingo and Raffle Act, regulations promulgated under the Bingo and Raffle Act or other provisions of law; before any licensed organization enacts or adopts any "house rules", they must be submitted to 

### [-I the board and approvedby



### r-1 the board; [&I 

### H. "jar raffles" or "pull tabs" means printed tickets that have a pulltab or seal to be opened by the purchaser where a winning combination is printed on each ticket or on a separate card; I. 

## - "licensee" means an entitv holding a license to overate games of chance Dursuant to the Bineo and Raffle 

### Act: [A] 

### J. "master card" means the main bingo card in use for the occasion that each player is required to have in his possession to play bingo; this is sometimes referred to as the door or admission card. This card isusually controlledby using only one color or size card; K. "method of payment"
means no licensee. its members or managers conducting, or in any way participat- 

# 1 ing in any game of chance, as defined in the

Bingo and Rame Act, shall allow a person to play on credit; any considerationcharged for the privilege of playing shall be fully collected in advance; short or bad checks are the licensee's responsibility,and none of the losses will be charged to bingo, raffles orjar raffle activities; L. "premises" for the conduct of games of chance do not permit the service of alcohol; no alcoholic beverages or mixture thereof are allowed on the premises of a licensed bingolraffle organization; if the premises where bingos and raffles are held are completely separate from the lounge area, the alcoholicbeverages may be served in the lounge only; 

### [Fr] "prizes" means cash or merchandise awarded to the winner of bingo games, raffles orjar raffles; 

### [€&IN_ "special" or "paper disposable card" means a card used for a specific game or games which is controlled by a separate color, serial number and manufacturer's identification number. 2 ,$ [15.4.1.7 NMAC 

### - Rn, ~e~ul& 2B-3 & A, 9/30/05]

This is an amendment to 15.4.2 NMAC, Sections 1,8,9, 10, and 14. This actionalso renumbers and reformats,asrequired by the current NMAC requirements, Regulation 2B-8(F), Regulation No. 2B-8(K), 

# 1 / 

### September 30,2005



# .

NEW MEXICO GAMING CONTROL BOARD Regulation No. 2B-8(O), Regulation No. 2B-8(Q), Regulation No. 2B-8(R), Regulation No, 2B-8(S) (filed by Department ofAlcoholic Beverage Control, Bingo and Raffle Division on 03/21/1984) and Regulation No. 2B-8(B) (filed by Department of Alcoholic Beverage Control, Bingo and Raffle Division on 03/29/1984). The amendment, renumbering and reformatting become effective 9/30/05.
15.4.2.1 ISSUING AGENCY: [Q=P--f ~f 

# -

. .. 

### -1 

# lw!

-. [15.4.2.1 NMAC 

### - Rn,Regulation 2B-8(F) & A, 9/30/05]
15.4.2.8 GAME MANAGER AND BINGO GAME CONTROLS: A. Games managers shall not play and no licensee shall allow an employee to play a game of chance while that employee is on duty. B. The game manager or his appointed assistant shall establish the following controls at all bingo games where the patrons exceed fifty players in number. (1) Each employee selling specials or disposable bingo cards shall be assigned a number and a matching nurnbered box. The assigned number shall be recorded by name on the duty record. (2) Each employee shall be furnished a change fund. (3) The game manager or his appointed assistant shall issue specials to the employees. These specials or disposable bingo cards shallbe controlledby manufacturers' identification number and consecutive serial number as listed in "use of disposable bingo cards" of these rules and regulations. The exact number of specialsor disposable bingo cards given each worker shall be recorded. (4) When an employee completes selling cards for a special game, he shall place the unsold specials and the money from such sales and change fund in his assigned box. The games manager or appointed assistant shall count the money, subtract the original change fund, and compare cards apparently sold against the cash tumed in. Any shortage in the cash shall not be deducted from the gross, but shall be reported as income. (5) The above procedure shall be followed throughout each special game or where disposable cards are used. (6)One or more individuals shall be assigned the duty of paying off bingo winners. Winners shall not be paid by individuals selling specials from their change fund or money they have in their possession from sale of specials. After the money from each special has been turned in and counted, it may be used to make prize pay-offs.

## STATE OF NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD

N THE MATTER OF THE PETITION FOR PUBLIC HEARING TO CONSIDER PROPOSED REVISIONSTO TITLE 20, CHAPTER 2, PART 99 

### OF 

### THE NO. EIB-05-03 (R) NEW MEXICO ADMINISTRATIVE CODE



## NOTICE 

## OFTRANSCRIPT FILING

You are hereby notified that the complete transcript of the July 5, 2005 hearing in the above case was filed on July 8,2005. The transcript is available forreview at the Boards and Commission's Office, 1190 St. Francis Drive, Room N-2153, Santa Fe, New Mexico 87502. A copy can be obtained fiom Kathy Townsend Court Reporters, 110 Twelfth Street, NW Albuquerque, New Mexico 871 02, or (505) 243-5018. 

# Tb &%ua- 

### ~arbara Claire, Administrator Environmental Improvement Board Post Office Box 26110 SantaFe, New Mexico 87502 (505) 827-2425 P (505) 827-2836 F


### CERTIFICATE OFSERVICE


### I hereby certify that a copy of the forgoing 

### NOTICE OF TRANSCRIPT FILING was mailed to Gail Cooke, Air Quality Bureau, 1190 St. Francis Drive, Santa Fe, New Mexico 87501 on July 8, 2005 and hand delivered to Kathryn Becker, NMED OGC, Harold Runnels Building, 1190 St. Francis Drive, Santa Fe, New Mexico 87501: 

# --@a* Barbara Claire, Administrator Environmental Improvement Board Post Office Box 26110 Santa Fe, New Mexico 87502 (505) 827-2425 

### P (505) 827-2836 F

### TRANSCRIPT OF PROCEEDINGS 

## 1

STATE OF NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD

No. EIB 05-03(R)

IN THE MATTER OF PROPOSED AMENDMENTS TO 20 NMAC 2.99 - 

### CONFORMITY TO THE STATE IMPLEMENTATION PLAN OF TRANSPORTATION PLANS, PROGRAMS, AND PROJECTS

BE IT REMEMBERED that on the 5th day of July, 2005, the above-entitled matter came on for hearing
before the New Mexico Environmental Improvement Board,
taken at the State Capitol Building, Room 321, Santa Fe,

1 

### New Mexico, at the hour of 9:17 a.m.
1



### KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

### Fax (505) 243-3606

### APPEARANCES 2



### For the Environmental Improvement Board: GAY DILLINGHAM, Chair GREGORY GREEN, Secretary SOREN PETERS HAROLD TSO DOLORES HERRERA

MARY H. SMITH Assistant Attorney General Office of the Attorney General 111 Lomas Boulevard, Northwest Suite 300 Albuquerque, New Mexico 87102

For the New Mexico Environment Department:
KATHRYN S. BECKER Special Assistant Attorney General Office of General Counsel New Mexico Environment Department 1190 St. Francis Drive Santa Fe, New Mexico 87505

#

1

. '. 

### KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

### Fax (505) 243-3606

### INDEX
PAGE 

## 3

WITNESSES:


### GAIL COOKE Direct Examination by Ms. Becker

JEFF FREDINE Direct Testimony

1

1



### KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

### Fax (505) 243-3606

### 4

EXHIBITS MARKED/ADMITTED

NMED:
1. Resume of Gail Cooke
2. Summary of Technical Testimony of
Gail Cooke
3. Proposed rule changes for 20.2.99
NMAC
4. Summary of 40 CFR Part 93 for August 

### 6, 2002 5 5 5. Summary of 40 CFR Part 93 for July 1, 2004 5

### 5


### 6. Notice of Public Meeting and Hearing 55

1

1

.

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## 5
MS. DILLINGHAM: Seeing none, I will move to
item number 5, public hearing for reconsideration of
revision of one air quality regulation, 20.2.99 NMAC, Conformity to the State Implementation Plan of Transportation Plans, Programs and Projects, EIB 05-03,
Gail Cooke.

MR. TSO: Madam Chair.

MS. DILLINGHAM: Yes, Mr. Tso.
MR. TSO: Can we dispense with item 6, the reading of the minutes, or is there a reason for this
order?
MS. DILLINGHAM: Well, that was done, I think,

to get the court reporter and everybody that was here
for the hearing, you know, through that, and we can -- 

### just in case the minutes take us a little bit longer.
That also gives us some time in case we need Gregory. , 

### MR. TSO: Okay.
I 

### MS. DILLINGHAM: Because I wasn't here and you

weren't here for the meeting minutes, and during a break
we'll talk about how to handle that.

MR. TSO: Okay.
MS. DILLINGHAM: And I will hand the meeting

over to Ms. Herrera, who is our hearing officer.

MS. HERRERA: All right.

I \ 

### KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

### Fax (505) 243-3606

## 6

This is a hearing in EIB 05-03(R) to consider proposed amendments to 20.2.99 NMAC, Conformity to State Implementation Plan, Transportation Plans, Programs, and Projects. Today is Tuesday, July 5th, 2005, and we are meeting in Room 321 of the State Capitol in Santa Fe,
New Mexico.

I am Dolores Herrera, an Environmental Improvement Board member who has been designated as the Hearing Officer in this matter.
The petitioner in this matter is the New Mexico Environment Department's Environmental Protection
Division.
The Environmental Improvement Board, EIB, is
mandated by Section 74-1-8.A.(4) of the Environmental Improvement Act and Section 74-2-5 and 74-2-6 of the Air Quality Control Act to adopt rules regarding air quality,
management and air pollution abatement.
i 

### This hearing will be conducted in accordance
with the Board's rule-making procedures and in a fair and impartial manner to assure that the relevant facts

are fully elicited and to provide a reasonable opportunity for all persons to be heard without making
the hearing unreasonably lengthy or cumbersome or burdening the record with unnecessary repetition.

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

### Fax (505) 243-3606

### 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 hearing please

turn off all cell phones, pagers and beepers.
The hearing shall proceed as follows:
One, all testimony will be taken under oath.
Two, as Hearing Officer, 

## I will admit any relevant evidence unless 

## I determine that the evidence
is incompetent or unduly repetitious. Three, any person offering an exhibit shall provide an original to the Board administrator and a
copy to each of the Board members and to its legal counsel, and shall provide additional copies for persons attending the hearing.
If visual aids are used, legible copies must , 

### be submitted for inclusion in the record. Please know

i 

### that the Board will not make copies of any exhibits used

at this hearing.
Four, any person who wishes to make a brief opening statement before presentation of his or her direct testimony may do so. Five, petitioner will present direct testimony

on the proposed rule amendments.

.

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### Fax (505) 243-3606

### 8
Six, other persons who have filed a timely
notice of intent to present technical testimony will present direct testimony in the order I establish. Seven, if any other persons, including members
of the public, wish to present testimony, those persons, in the order shown on the sign-up sheet, will present
direct testimony on the proposed rule amendments.
If you wish to testify and have not yet signed in, please do so now. Eight, because this hearing is being transcribed, all persons presenting testimony must come
to the microphone to speak and may not speak from their

seats in the audience. Please remember that only one

person may speak at one time. For all those persons testifying during this hearing, please direct your testimony and answers to questions to the Board members. Nine, any person who testifies is subject to 

## , cross-examination on the subject matter of his or her
1 

### testimony and matters affecting his or her credibility.
The parties shall have the option of presenting their
witnesses on a panel for purposes of cross-examination.
Cross-examination by Board members and the Hearing
Officer will be conducted at the conclusion of each presentation, followed by cross-examination by any party.

~ '.


### KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

### Fax (505) 243-3606

### 9

Please remember to direct all testimony and

answers to questions to the Board itself, even if

someone other than a Board member has asked a witness a question.
Any person attending the hearing is entitled

to conduct whatever cross-examination is required for a
full and true disclosure of matters at issue in the hearing. As Hearing Officer, I may limit
cross-examination to avoid harassment, intimidation,
needless expenditure of time and undue repetition.
Ten, at the parties' discretion and if time permits, rebuttal testimony may be given at the
conclusion of the public testimony in the same order as direct testimony. Eleven, any person who wishes to make a brief closing argument may do so at the conclusion of the hearing in the same order as the direct testimony.

I 

### We will now proceed.

i 

### Will all persons who wish to testify at this hearing on behalf of the petitioner, New Mexico
Environment Department's Environmental Protection Division, please stand so that the court reporter may administer the oath. (GAIL COOKE was duly sworn or affirmed.)
MS. HERRERA: Does the petitioner wish to make

. , 

### KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

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## 10

a brief opening statement?

MS. BECKER: Yes, we do.

MS. HERRERA: Okay.
MS. BECKER: May it please the Board, my name is Kathryn Becker, and I'm an attorney in the Office of
General Counsel at the New Mexico Environment
Department, and I'm here today to represent the Air Quality Bureau.
And we're here today because the Air Quality

Bureau is seeking to amend 20.2.99 NMAC at the request
of the Environmental Protection Agency.
This particular section of the New Mexico
Administrative Code has to do with transportation conformity, which will be explained through testimony today. Further, you'll hear that these amendments may potentially help the air quality in New Mexico and should be adopted.

# 

### I would like to turn your attention to the

, i 

### exhibits that we will be referring to today to make sure

you have them in front of you. All exhibits have previously been presented to you and filed at the time
of the notice of intent to present technical testimony.

So in that order, Exhibit 1 is the resume of
Gail Cooke.


### 2 is the Summary of Technical Testimony of /,



### . 

### KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

### Fax (505) 243-3606

## 11

Gail Cooke.
3 

### is the proposed rule changes for 20.2.99
NMAC.


### 4 

### is the summary of 40 CFR Part 93 for the
date of August 6, 2002.
Exhibit 5 

### is the summary of the same 40 CFR
Part 93 for the date of July 

### lst, 2004.
And Exhibit 6 

### is the Notice of Public Meeting
and Hearing as published by EIB.
And 

### I do want to just mention as an aside that



### we have only one witness today, however, she does have a
minor illness, and so there may need to be an opportunity for a break, but 

### I will indicate that to you
upon her indicating that to 

### me.
And I'm ready to proceed when you say, Madam Hearing Officer.
MS. HERRERA: 

### Okay. You can go ahead and

start your direct testimony on the proposed rule

I 

### amendments.
MS. BECKER: Yes. 

### Thank you.

. ,. 

### KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New 

### Mexico 87102 (505) 243-5018 

### - Fax (505) 243-3606

## 12

GAIL COOKE having been first duly sworn or affirmed, was examined and testified as follows:
DIRECT EXAMINATION

BY MS. BECKER:
Q. What is your name?
A. Gail Cooke. Q. And where do you work?

A. I work for the New Mexico Environment Department, Environmental Protection Division, Air Quality Bureau. Q. And what do you do for the Air Quality Bureau?

A. I develop and review state implementation plans, as well as develop community initiative projects, develop regulatory language, as well as conduct public
outreach.
Q. How long have you held this position? , 

### A. I've been with the Department for six years.
i 

### Q. What did you do before taking this position
with the New Mexico Environment Department?

A. I was an environmental consultant for a private firm in Albuquerque. Q. And what were your duties with this private
firm in Albuquerque?
A. Basically, my main job duty was to work wit,.h

,

# . KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 

## - Fax (505) 243-3606

## 13

the National Environmental Policy Act, with highway projects.
Q. 

### What is your educational background?

A. I have a bachelor's in environmental design from Texas A&M University and a master's of urban and regional planning from Virginia Polytechnic Institute
and State University.
MS. BECKER: Here I introduce your resume premarked as NMED Exhibit 1. 

### Q Ms. Cooke, does this accurately reflect your education and your work experience and your recent trainings?

A. Yes, it does. 

### Q



## . Okay.
What is your purpose here today?

A. My purpose here today is to present amendments

to 20.2.99 NMAC, Conformity to the State Implementation,
Plan of Transportation Plans, Programs, and Projects,

IL 

### which are referred to as Part 99 from now on.
EPA mandates these amendments be incorporated
into New Mexico's State Implementation Plan by September 30th, 2005. These revisions are mandated from the federal government by the EPA through 40 CFR Part 93, Determining Conformity of Federal Actions to State or Federal Implementation Plans, which I'll refer to frdm

. '. 

### KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

### Fax (505) 243-3606

## 14

now on as the federal rule.

EPA is statutorily obliged under 

## -- obligated
under the Clean Air Act, Section llO.(a)(l), 42 USC A, Section 7410, to implement federal rules.
Q. 

### Are there rule amendments that you're proposing today verbatim with what the Environmental
Protection Agency has adopted in its final rule?

A. Yes.
Q. 

### What does transportation conformity mean?

A. Basically, what transportation conformity
is 

## -- it was a requirement that was promulgated by EPA
in 1993 for areas that are in nonattainment for one of
the six criteria pollutants.
The purpose of transportation conformity is to
take transportation projects into consideration in
nonattainment areas so as not to compound an existing problem. Transportation projects and plans must conform

I 

### with the nonattainment State Implementation Plans for
the area and help with the process rather than hinder
it



# .. Q. What is a nonattainment area?
A. A nonattainment is an area that has exceeded
the standards for one of the six criteria pollutants,
which are lead, sulfur dioxide, nitrogen oxide, ozone and particulate matter.

.

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## 15

Q. What is the primary pollutant that generally

causes nonattainment?

A. The primary pollutant would be mobile sources,
such as vehicle emissions. 

## Q Would you please describe how you plan to introduce your proposed amendments?

A. Today 

### I plan to explain the amendments in two phases. Based on the fact that in the past three years

EPA has revised the federal rule in two phases, 

### I will explain these amendments based on these two phases. 

## Q. Considering that these amendments were made by
the Environmental Protection Agency over the course of
three years, is it appropriate for the State to incorporate both phases at once?

A. Absolutely. Actually, EPA asked that we do it
this way. 

## Q Okay.
Ms. Cooke, did you prefile a summary of

i 

### technical testimony providing detailed information on
these amendments?

A. Yes, 

### I did.

MS. BECKER: Here I introduce a copy of your
summary -- 

### copy of, yeah, your Summary of Technical Testimony, premarked as EIB Exhibit 2. 

## Q



## . Is this an accurate reflection of your

. '. 

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### Fax (505) 243-3606

## 16
testimony?

A. Yes, it is.
MS. BECKER: I'm also at this time going to
introduce the proposed amendments to 20.2.99 NMAC. This
would be premarked as NMED Exhibit 3. 

## Q. Does this reflect the proposed amendments as
you put forward?

A. Yes, they do.
Q. 

### Would you please proceed with a brief explanation of the proposed amendments?

A. Yes. I will begin with the first phase.
The first phase of EPA's amendments to the
federal rule was promulgated on August 6, 2002. There
were two main amendments that were made to the federal
rule.
The First Amendment was transportation conformity must now be determined within 18 months of

I 

### the effective date of the Federal Register notice

1 

### announcing the EPA's finding that emissions budgets in

an initial State Implementation Plan submission are adequate.
This amendment changes the transportation conformity rule that requires conformity to be
determined within 18 months of the submission date of an initial State Implementation Plan.

.I. 

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## 17

This will allow EPA more time, if needed, to
review transportation conformity plan and emissions budgets for transportation projects by starting the
18-month clock when a submission is deemed adequate
rather than when it was initially received by EPA. This amendment to the federal rule revises Section 115, Frequency of Conformity Determinations - 

### Trigger for Transportation Plan and TIP Conformity Determinations, of NMAC Part 99.
The second revision provides first-time
nonattainment areas with a one-year grace period before conformity regulations apply. This grace period begins upon the effective date of EPA1spublished notice in the
Federal Register that designates an area as nonattainment.
This amendment to the federal rule revises Section 109, Applicability, of NMAC Part 99.

I 

## Q



## . Ms. Cooke, if I understood the changes

i 

### correctly, the two amendments in Phase 1 are to start
the clock running later, so that EPA has more time to review plans, and for a one-year grace period for
nonattainment areas; is that correct?
A. That is true. That is correct.
MS. BECKER: Here 1'11 also introduce an overview of the final rule from the transportation ,.



# .. KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

### Fax (505) 243-3606

## 18
conformity rule amendments as published in the EPA, and
this would be on the date of August 6, 2002. It's been premarked as NMED Exhibit 4. 

## Q. Ms. Cooke, do you recognize this document as
the final rule put forward by the EPA for August 6,
2002?

A. Yes, I do. 

## Q. Okay.
Would you please proceed with Phase 2?

A. The second phase of the amendments made to the transportation conformity rule was published in the Federal Register on July lst, 2004.
The amendments to the federal rule include
amendments for the eight-hour ozone and particulate
matter 2.5 micron in size national ambient air quality
standard and several other amendments to clarify the conformity regulation and improve implementation. I 

### I'm giving you an abbreviated version of what

[ 

### was submitted to you as Exhibit 

### 2. These are not in -- 

### the testimony is not in chronological order. Rather,

I've organized the amendments by subject matter in case
of criteria pollutant based on how EPA formatted the
amendment by -- 

### and by importance in terms of the most significant amendments.

I have provided information on the revision,!^



### .

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## 19

location in both the federal rule and the NMAC.
MS. HERRERA: Excuse me just one second. I've
been asked by one of our Board members to help us follow along and keep us informed where you're at exactly.
MS. COOKE: Okay.

MS. HERRERA: So could you let us know?

MS. COOKE: Yes. Actually, we are on page --



### on -- 

### of my testimony?

MS. HERRERA: Yes.
MS. COOKE: Is that the question?

MS. HERRERA: Um-hum.

MS. COOKE: We will begin on page 4, Proposed
Amendments to 20.2.99 

## --
MS. HERRERA: And that's in Exhibit 2?
MS. COOKE: Yes, that is in Exhibit 2.
And this is the 

## -- this table has the second phase of these amendments. And as 

### I said before, my --,


### my verbal testimony will be an abbreviated version of
i 

### this table, because it's quite long, so --


### MS. HERRERA: Just keep us aligned.

MS. COOKE: Yes.
MS. HERRERA: Okay. So we can follow along.
MS. COOKE: Um-hum. 

### I will.

MS. HERRERA: Thank you.
MR. TSO: Madam Hearing Officer.

I I 

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### Fax (505) 243-3606

## 20

MS. COOKE: 

### It 

### is a confusing reg, so 

### --
MR. 

### TSO: Madam Hearing Officer, would you
also request of the petitioner to keep us alert on Phase


### 1 and Phase 2 after 

### we get into this table?
MS. COOKE: 

### This 

### is only Phase 2.

MR. 

### TSO: Okay. All 

### of 

### it 

### is Phase 2.
MS. COOKE: All 

### of 

### it is Phase 2.
MR. 

### TSO: Okay.
Thank you, Madam Hearing Officer.
MS. COOKE: 

### You're welcome.
MR. 

### TSO: And Madam Cooke.
MS. HERRERA: 

### You're welcome, Board member.
MS. COOKE: 

### Oh, sorry.


### I will give you a brief overview of the
amendments beginning with ozone for the eight-hour ozone
standard.
The first section we'll be looking at 

### is I 

### Section 109D in Part 

### 99, conformity grace period. This
i 

### is a one-year conformity grace period. This 

### is the same
grace period that 

### I refer to in Phase 

### 1. It has just
been extended to the eight-hour standard.
The next section 

### will be Section 138B,
baseline year test. This requires emissions from proposed transportation plans are either less than or no greater than the 2002 motor vehicle emissions in a given

.

# . KATHY 

### TOWNSEND COURT 

### REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 

### - Fax (505) 243-3606

## 21

area.
MS. BECKER: And just so that 

## I -- 

### excuse me
for just a minute, Ms. Cooke.

Just so that I make sure that you're all following, what she's doing first is reading from the furthest right-hand column to identify that cite in the

NMAC. It shows where that corresponding cite is required in the CFR.
And then there's an explanation of what's at
issue in the column where it says Issue Addressed in
Final Rule. And she's doing it by main criteria.
So the furthermost left column says 8-Hour
Ozone, and that's -- 

### we're going to be just talking about eight-hour ozone at this time until we reach the

next section. Please proceed.

MS. COOKE: The next section will be Section , 

### 138B. (2) and Section 138G. (2) in Part 99, the build/no
i 

### build test. Conformity is demonstrated if emissions
from a proposed transportation plan are less than or equal to emissions from the existing transportation plan.
The next section would be Section 138B.(1), regional conformity tests for moderate and above
classification. Ozone areas of higher nonattainment"of

. , 

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## 22

moderate and above classifications must meet both the
build-less-than-no-build and less-than-baseline year

test to demonstrate conformity.
The next section will be Section 128D, regional conformity tests, areas without one-hour ozone budgets. This is how a regional emission analysis must
be done in an eight-hour ozone area without an existing
one-hour ozone step.
The next section would be Section 128E, regional conformity tests, areas with one-hour ozone budgets, how regional emissions analyses must be done in eight-hour ozone areas with an existing one-hour ozone
SIP.
The next section would be Section 7, which is
definitions. This clarifies the conformity rule's
definitions for "control strategy implementation plan revision," "milestone," "donut areas," "isolated rural , 

### nonattainment and maintenance areas," one-hour ozone
L 

### National Ambient Air Quality Standards and eight-hour
National Ambient Air Quality Standards.
The next sections we'll be looking at are Section 128K and Section 140C, areas with insignificant
motor vehicle emissions. This provision waives the regional emissions analysis for an insignificant pollutant or precursor.

.'.


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### 23

The next sections will be Section 125B and Section 143, transportation plan and modeling requirements for higher classifications. This provides

a two-year grace period before more advanced transportation modeling requirement is required.
The next section would be Section 140B.(1),
nonfederal projects, for isolated rural nonattainment

areas only. This requires a regionally significant nonfederal project to be included in the regional
emissions analysis of the most recent conformity
determination.
And that concludes the revisions for the eight-hour standard.

Are there any questions?
MS. HERRERA: Does the Board have any questions or wish to cross-examine this witness?

MS. DILLINGHAM: Could you just review that , 

### from your words in a very layperson's language, what you

, i 

### just said and what the high points are?
MS. COOKE: Basically, what this is doing -- 

### I

can -- 

### actually, this can summarize all of the sections very succinctly, if you would like for me to do this, rather than reading each individual revision, because it
is a confusing reg. Basically, what EPA is doing i s w e have the,..

. \ 

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## 24

new standards for 

## -- new air quality standards for eight-hour ozone and for particulate matter 2.5 microns
in size, which is fine particulate matter.
And those new standards EPA has -- 

### ozone actually is now in effect, and PM,., will be in effect by
the end of 2005. So they're updating the regulation to include those new pollutants for nonattainment areas, which transportation conformity is required for all
nonattainment areas.
EPA also has done these revisions to clarify parts of the regulation, which is a very confusing regulation, and government agencies do have difficulty sometimes understanding what EPA is looking for.
So they have taken the liberties with this
revision to include the new standards into this reg, to
also clarify it, to make it a bit easier for state
governments and municipal governments to use. t 

### So that, basically, is an overview of what all

1 i 

### of these regulations are 

## -- of all of these revisions are. So, basically, like I said, it is just to update
it for the new standards and then to clarify.

Does that answer your question?
MS. DILLINGHAM: It does, and 1'11 follow up with another question, which is, from your experience -- 

### I know that we have no choice but to meet the federal'.

.'. 

### KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

### Fax (505) 243-3606

### 25


### requirements, but I'd like to have on the record your -- 

### through your experience, do you think this is enough for maintaining air quality in our state?
MS. COOKE: Yes, I do. I actually think it's

a good program for nonattainment areas because it does
make us take into consideration transportation projects before we actually put them in place, to see whether or
not they're going to have 

## -- what kind of impact they're going to have on that nonattainment area, since vehicle
emissions are a large source in urban areas for the
cause of nonattainment.
And so this is basically just a checklist and

a 

## -- kind of a watchdog to make sure that we're not putting programs into place that are going to cause the

area to increase in air pollutants and cause a problem,
when we can actually take into consideration before we
do these transportation projects what they're going to , 

### do.

Ii 

### And in many cases, you have to show that there
will be a decrease, and in areas of higher level nonattainment, you have to show that with transportation projects, that you're actually going to have a decrease
in pollutants rather than staying the same, just the
status quo, which, like I 

### said, I 

### feel is very good, especially for those higher -- 

### that classification I.



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### Fax (505) 243-3606

### 2 

### 6

nonattainment areas.
MS. DILLINGHAM: Okay. Thank you.
MS. HERRERA: Do any of the other Board
members have questions?
MR. TSO: Madam Hearing Officer.

MS. HERRERA: Yes.
MR. TSO: Ms. Cooke, what is the relative

amount of ozone generated by transportation modes as opposed to industrial modes?
MS. COOKE: I really couldn't answer that.

I'm really not sure what the difference would be.
There are certain areas I do know that are nonattainment that have 

## -- that are nonattainment
because of industrial sources, and then there are other

areas that are nonattainment because of vehicle sources,
and most areas that are nonattainment are nonattainment for vehicle sources. It's normally more on the vehicle , 

### side than the industrial side.
i 

### We see a lot of the areas 

## -- areas that have

ozone problems that more of it is industrial if it's

more of a rural area, because you just don't have the transportation base to cause the emissions to be that high, so --


### MR. TSO: Okay. Thank you, Madam Hearing Officer, and Ms. Cooke.

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MS. COOKE: If you would like, that basically
summarizes all of my testimony. If you'd rather me not
be a talking head and read through all of this and -- 

### but that 

## -- like I said, that basically is an overview
of what they're doing, and we -- 

### I'd -- 

### the Air Quality
Bureau does feel that it is an important program, and it
does play an important part in nonattainment areas to help bring those areas back within the standard.

MS. DILLINGHAM: I do.
MS. HERRERA: Any other questions?

MS. DILLINGHAM: I just wanted to say that I
didn't want to cut you short.
MS. COOKE: Oh, that's fine. MS. DILLINGHAM: Usually what we do is have an overview opening statement, which is more in lay language, and then we get into the technical meaning.

So I didn't mean to cut you short, just to have a f


### summary first, so we had something to hang our thoughts

1 

### on.
MS. HERRERA: And I do have a couple of questions 

## --
MS. COOKE: Okay.
MS. HERRERA: - - 

### I want to ask. October, again, 2002, and now it's 2005, and,
it's like three months, it's cutting it short again.'.

. '.


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And we 

## -- you know, I really would appreciate -- 

### and

we've 

## -- many of the members of the Board 

## -- you know

## , cutting it so close, it 

## -- I know that the Environment
Department is very busy, but it's really worrisome for

me.
MS. COOKE: Well, we actually did incorporate
these revisions in 2003, and then EPA gave us a heads-up
that they were going to have more revisions in 2004 and suggested that we hold off. And that was the main

reason that we did hold off, when they told us just to
do them all at once.
MS. HERRERA: Well, my concern is that, again,

we might not have a hearing, I mean, something could happen, and New Mexico would not be in a very good place.
And that's it on that. I do want to ask a question in regard to nonattainment and the grace
, 

### period.
i 

### What is the mechanism that New Mexico is going to be using? So you have a year for the grace period,
and --


### MS. COOKE: If we have a new nonattainment

area, then when that designation from EPA declaring us nonattainment is published in the Federal Register, we:
have one year from that time to have a transportation,'.

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## 9
conformity program in place.
MS. HERRERA: That will lower the emissions? MS. COOKE: Basically, what it does is you
have to take -- 

### when you do -- 

### it doesn't lower the
emissions from the vehicles.
MS. HERRERA: Right.
MS. COOKE: We're not trying -- 

### but, yes, it's supposed to take projects into consideration and how they're going to affect air quality, and you have to show either for status quo or less than for areas of lower nonattainment, or you have to show reduced
emissions for areas of higher classification for
nonattainment.
MS. HERRERA: And so that's a collaboration
between the municipalities and the different governments
and -- 

### MS. COOKE: If an area -- 

### if it is an urban ,



### area and they have a metropolitan planning organization,
i 

### then they are very much involved. Also, the New Mexico Department of transportation is very, very much involved, as well as the federal government, the Federal Highway Administration, Federal Transit Administration are also
involved.
MS. HERRERA: Okay. Thank you very much. .'.

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I'm going to ask the Board a question, but 

### I

want -- 

### first want to ask does anybody else want to
cross-examine this witness. Oh, I'm sorry. I have to wait until she's
done.

I should ask this question, though, because
Gay did bring up a really good point about providing an
overview to the Board, and so I was going to ask the Board, do we want to hear the verbatim testimony, the written testimony? Is it the pleasure of the Board?

MR. TSO: Madam Hearing Officer, I have no problem with the way we're proceeding right now. 

### I
think the die is cast, we've got to gut it out and
finish it.
MS. HERRERA: Okay. Anybody else have a comment?
Did you say gut it out and finish it? t 

### MR. TSO: I'm sorry -- L 

### MS. HERRERA: Did you get the "gut it out"?

MR. TSO: 

## -- for the lack of finesse in my language.

MS. HERRERA: I thought we were going fishing,
but --


### MS. BECKER: If it may please the Board, one
way that I could recommend -- 

### it would be a minor

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change, but it would still be the way we're organized,
which is by criteria pollutants. And we're looking at
all six. We just went through ozone, and that's where
the most comprehensive changes are, and Ms. Cooke has
identified each of them.

As she goes through the other criteria pollutants, she could just highlight areas where they distinguish from the -- 

### for ozone as opposed to read all
of them, which a lot refer back to where it is in ozone.
But that's at the discretion of the Board.

MS. HERRERA: Any comments?

MR. TSO: Madam Hearing Officer, just an ignorance question. Why isn't mercury included in this, since
there's talk of transporting fly ash from the power plants to disposal areas of their choosing or their approved sites? How is -- 

### why isn't mercury included , 

### here?
1 

### MS. COOKE: I'm not sure why EPA did not include mercury in this.

MR. TSO: Oh, it's EPA's fault.
MS. COOKE: Yeah.
MR. TSO: Thank you.
MS. HERRERA: Question answered?

MR. TSO: Yes. Thank you, Madam Hearing .'.

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Officer, Ms. Cooke.
MS. HERRERA: So does anybody have a comment

as to how we proceed? We're okay? All right. We'll go ahead and move.
MS. COOKE: Okay.
So from this point on, I will let you know
which page in your testimony 

## -- or my testimony that you have, and this will be real quick. There's only going
to be like a handful.
MS. HERRERA: Okay.
MS. COOKE: So the next -- 

### the next criteria pollutant we will be looking at is for PM,.,, and the
first revision would be under Section 

### 2B of Part 99.


### And that would be on page 8 of the testimony that you
have. That would be on page 8, and it would be -- 

### yeah.

It's the first one next to PM,.,, National Ambient Air Quality Standard. p 

### For applicability, this revision simply
i 

### includes PM,., as a criteria pollutant.
The next section -- 

### the next new section would
be Section 1281 -- 

### or new revision would be 1281, and
that would be on page 9. 

### And that would be the third -- 

### or the second complete paragraph down. Regional conformity tests in PM,., areas. This requires that the budget test be used to

.\. 

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complete a regional emissions analysis once the PM,., SIP
is submitted with budgets that EPA has found adequate or approved.
The next section we'll be looking at will be
Section 2D and Section 138F, and it's the one just right
below that, for re-entrained road dust in PM,., regional emissions analyses, still on page 

### 9.
And that would be PM,., areas presume that
re-entrained road dust is not a significant contributor
and is not included in the transportation conformity analyses unless EPA or the State find road dust significant.
The next revision would be on page 10. It
would be -- 

### the next revision would be construction-related fugitive dust in PM,., regional emissions analyses.
This says highway and transportation projects,

are included in regional emissions analyses for
i 

### nonattainment and maintenance only if it is identified

as a significant contributor to regional air quality problems.
The next section would be Section 136, compliance with PM,., SIP control measures. This is also

on page 10. It's the next one down.
And that would be for Federal Highway

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## 4

Administration and Federal Transit Administration projects in PM,., nonattainment and maintenance areas
have to comply with applicable State Implementation Plan
2.5 control measures when such measures exist.
And that is the end for that section. Does anybody have any questions regarding

PM2.5' 

### MS. HERRERA: Does the Board have any questions?
MS. DILLINGHAM: I'd just like to say we do
have one new Board member, and things like SIPS and 

## --
MS. COOKE: You know, I 

## --
MS. DILLINGHAM: - - 

### state implementations 

## --
every time you can spell out an acronym, it is helpful.
MS. COOKE: Okay.
MS. DILLINGHAM: And I still don't know what
this build-no-greater-than-no-build test is, if you , 

### could explain that.

Ii 

### MS. COOKE: Basically --


### MS. DILLINGHAM: Some of these terms --


### MS. COOKE: Okay. Basically, what build-no-greater-than means is that you have a certain level, and you show what those emissions are at that
level. So you have like -- 

### you inventory your emissions
for transportation projects.

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## 5

A new transportation project cannot be greater
than what you already have. You either have to show
that it stays the same or the emissions will be less
than what you currently have inventoried.
And -- 

### MS. BECKER: And that's called the build-no-greater-than-no-build test?
MS. COOKE: Yes. Yes. It's confusing. It's

a very confusing regulation. I'm sorry.
MS. DILLINGHAM: As long as you know what it
is.
MS. COOKE: Yes. Luckily, yes. It took me a while to figure out what it meant, too, so -- 

### MS. DILLINGHAM: Thank you.
MS. COOKE: You're welcome.
MS. HERRERA: Any other questions? Okay. I 

### MS. COOKE: The next section that we'll be
; 

### looking at -- 

### or the next criteria pollutant -- 

### I'm

sorry -- 

### is for ozone, one-hour National Ambient Air Quality Standard. And I think, actually, there are a couple.
The first new revision that we're looking at will be on page 13, and it's the second one down,
limited maintenance plans. And that would be under ".

. 

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### 36

Section 72 and Section 128J and Section 140C of NMAC

Part 

### 99.

A limited maintenance plan allows a nonattainment area with air quality that is significantly below a standard to request redesignation through a more streamlined maintenance plan.
The next new revision would be on page 15 --


### I'm sorry. Actually, it starts on page 14, at the very
bottom of page 14, and goes on to page 15. And that
would be Section 128C of Part 

### 99. And that is
clarification to the use of approved budgets in conformity.
This is to clarify the requirements for each criteria pollutant standard that the budget test must be
satisfied for conformity determinations.
And those are all of the new revisions for the
one-hour ozone standard. If anybody has any questions , 

### regarding those.

11 

### MS. HERRERA: Board members, any questions?

No questions? Okay. Go ahead and proceed. 

## Q. (BY MS. BECKER) Ms. Cooke, I want to clarify.
For the sections that you're not reading, they
also may be newly revised, but it's just that they're
the same as the eight-hour ozone standard; is that '.

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### 37

correct?
A. 

### That is correct. 

## Q Okay. Please proceed.
A. 

### The next section I'll 

### be looking at of
criteria pollutant will 

### be for particulate matter PM,,,
which is 

### the coarse particulate matter, National Ambient
Air 

### Quality Standard.
And there's only one new revision under this
criteria pollutant that you haven't already heard, and
that would be Section 2C. (3) and Section 138F. (5), and
it is 

### on page 15 and goes on to page 16. And that is


### the clarification to precursors. Under the revision, only volatile organic compounds and nitrogen oxides are identified as PM,, precursors. Basically, what EPA has done 

### is it's taken PM,, from the list 

### of PM,, precursors. And that is 

### the end of the revisions for the 

### , PM10


# . , 1 

## Q. And, Ms. Cooke, 

### is that because PM,, can't be a
precursor to itself?

A. 

### That is correct. 

### Q So it's truly a clarification -- A. 

### Yes. It 

### was basically an oversight on their part that they included a precursor to the pollutant.
You can't have the same pollutant be a precursor to ".

. , 

### KATHY 

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## 38


### itself, so that's why.
MS. HERRERA: And that was the Environmental
Protection Agency, EPA, you're referring to?
MS. COOKE: Yes. This is the EPA that did this, so -- 

### MS. HERRERA: All right. And you've completed that area already? Are you done?
MS. COOKE: Yes. Yes, I'm done. If anybody has any questions for PM,,.
MS. HERRERA: Do you have any questions?

MR. TSO: Madam Hearing Officer.
MS. HERRERA: Yes, sir.

MR. TSO: And, Ms. Cooke, my background is chemistry, and I have a problem understanding a matter particle that is 10 microns in size having a precursor like volatile organic carbon and nitrous oxide that has ,



### a precursor 10 microns in size.

1 i 

### And I -- 

### VOC and N0,es are gas. PMs are solid,

as I understand it. And I have a hard time figuring out
what a VOC 10 micron in size is, a NO, that's 10 microns
in size is. And that -- 

### basically, you say precursors, and PM,, is larger than 2.5. I mean -- 

### yeah, larger. So

I have a hard time understanding VOCs and N0,es having

; 

### large precursors.

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Do you understand my drift?

MS. COOKE: I understand what you're saying.

I'm not -- 

### I know that EPA does consider these two pollutants as being precursors to PM,., and PM,,. I have

a limited background in chemistry, though, as to how exactly they came to this determination. I'm not really exactly sure.
So I would -- 

### I would fear to try to answer this that it wouldn't be correct, so I'm really not

sure. But 

### I do know that EPA considers these two pollutants as precursors.
MR. TSO: Madam Hearing Officer, Ms. Cooke.
MS. HERRERA: Yes.

MR. TSO: May I just ask for information after
the hearing is over, at your choosing, send me some information, perhaps enlighten the Board on this particular question? , 

### MS. COOKE: Yes, definitely.

I. 

### MR. TSO: Thank you.
MS. COOKE: That would not be a problem at
all.
MR. TSO: Thank you.
MS. DILLINGHAM: I would second that. I do

not have a background in chemistry like you do, but I'm
also still very curious about that.

. , 

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### 4 

### 0

MS. HERRERA: Any other questions? Comments?
You may proceed.
MS. COOKE: 

### The next pollutant would be carbon monoxide, and 

### we have actually gone over in other
sections all of these revisions for carbon monoxide, so
if anyone has any questions for that one. The next section would be nitrogen oxide, and,

once again 

### -- sorry. MS. HERRERA: Does the Board have questions?
All 

### right. You may proceed.
MS. COOKE: 

### Thank you.
For nitrogen oxide, once again, 

### we have already gone over all of the revisions from this
section. If anyone has any -- 

### MS. HERRERA: 

### So you've completed that
section? Is 

### that what you're saying?
MS. COOKE: Yes. 

### If the Board has any l 

### questions.

I i 

### MS. HERRERA: Does the Board have any questions?
None? Okay. You may proceed.
MS. COOKE: 

### Thank you. The last section we'll be looking at are miscellaneous revisions that 

### were made by EPA. And this



### . \ 

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## 1

will start on page 23. And I 

### will actually discuss all
of the revisions under this section. These are all new
revisions.
MS. HERRERA: 

### And did I 

### understand you correctly that you said these 

### were proposed by EPA?
What was your 

### -- MS. COOKE: 

### These are actually a final 

## -- it's

a final rule.
MS. HERRERA: 

### The final rule from EPA.
MS. COOKE: 

### Yeah.
MS. HERRERA: 

### And you're going read them in
total? 

### Is that what you said?
MS. COOKE: 

### I'm not 

### -- no. I'm giving you an
overview.
MS. HERRERA: 

### An overview.
MS. COOKE: 

### These are all -- 

### I'm 

### not going 

### -- these do not refer back to other sections. I 

### MS. HERRERA: 

### Okay.
i 

### MS. COOKE: 

### These are all new.
MS. HERRERA: 

### Okay.
MS. COOKE: 

### New revisions. So I 

### will 

### -- for
the table 

### -- for the purpose of the table, I'll 

### be going
each out 

### -- over each one -- 

### MS. HERRERA: 

### Okay. From page -- 

### MS. COOKE: 

### -- under this heading.



### .'. 

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## 2

MS. HERRERA: From page 23 to 

## --
MS. COOKE: 23 to 27. Yes.
MS. HERRERA: Okay. Go ahead and proceed.
MS. COOKE: Thank you.
MS. HERRERA: Um-hum.
MS. COOKE: The first section under NMAC Part
99 would be Section 109C. This will be federal projects. No new federal approval or funding
commitments for nonexempt projects can occur during a transportation conformity lapse.
The next section would be Section 128 and
Section 137E for NMAC, and that's determining whether vehicle emission budgets from submitted state implementation plans are adequate. EPA must affirmatively find submitted budgets adequate before they can be used in a conformity determination.
The next section would be Section 137F, 9 

### general description of the vehicle emissions budgets adequacy project.
MS. HERRERA: And that's on page 24?
MS. COOKE: That's on page 24.
And this -- 

### the adequacy process consists of
three basic steps, public notification of a State Implementation Plan submission, a public comment period
and EPA's adequacy finding, including response to

. 1 

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submitted comments.
The next section would be Section 137F.(2),
vehicle emissions budgets adequacy reviews through the

State Implementation Plan process. This revision finalizes procedures for conducting adequacy reviews and making adequacy findings.
The next section would be Section 140A,
nonfederal projects. Regionally significant nonfederal projects can no longer be advanced during a conformity lapse unless they have received all necessary state and
local approval prior to the conformity lapse.
The next section would be Section 149B, safety margins. And that is on page 25. If an approved State Implementation Plan submitted before November 24th, 1993, which is when the original rule was promulgated,
had included a safety margin, but did not specify how
the safety margin was to be used, an area could submit q 

### revision to the State Implementation Plan and

, i 

### specifically allocate all or a portion of the safety margin to the State Implementation Plan's motor vehicle
emissions budgets.

To let you know, safety margins are -- 

### is 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 requiremdnt.

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### 4


### Basically, what it shows is that you have a safety margin, you have a buffer before you're going to go over that allowed emission rate, or emission level, so 

## -- The next section would be Section 113D and
Section 115, which is streamlining the frequency of conformity determinations.
This is eliminating the requirement that a metropolitan planning organization and the New Mexico
Department of Transportation have to determine conformity of a transportation plan within six months of
the date that the New Mexico Department of Transportation determined conformity of the transportation plan.
This also eliminates the requirement that all
nonattainment and maintenance areas have to confirm conformity within 18 months of the November 24th, 1993, date, which is when the original rule was promulgated. , 

### Section 

## -- the next section will be Section
i 

### 129A, latest planning assumptions, which is on page 26.
This revision will allow conformity
determinations to be based on the latest planning assumptions that are available at the time the conformity analysis begins rather than at the time of the Department of Transportation's conformity
determination of a transportation plan.

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The next section would be Section 135, horizon

years for hot spot analysis. This clarifies at the project level hot spot analyses in metropolitan
nonattainment and maintenance areas must consider the
full-time frame of an area's transportation plan at the
time the analysis is conducted. And just to explain what a hot spot is, a hot
spot is an area outside of an urban nonattainment area.
You have a metropolitan nonattainment area, and then you'll have -- 

### inside of it you'll have an urban area.
A hot spot is an area outside of that urban area, but
it's still within the nonattainment area.
So it's kind of like a little island outside
of the suburban area, but, like 

## I said, still within a nonattainment area, that still has to comply with requirements for nonattainment areas.
The next section would be Section 147, which , 

### is on page 26, going on page 27. And this is relying on
L 

### a previous regional emissions analysis. This describes
when an area can rely on a previous regional emissions analysis for a new conformity determination.
The next section for NMAC would be Section
137B and Section 137D, budget test requirements for the
attainment year. Revisions clarifying how a reasonable further progress budget should be implemented when a". 

## <.
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### 6

budget is established for a year prior to the attainment

year. And just to give you a little bit of information, the reasonable further progress is your annual incremental emission reduction. Basically, what

you do is when you do a SIP 

## -- when you do a State Implementation Plan for a nonattainment area, you show
how you're going to have further progress, reasonable further progress, and show how you're going to do an incremental reduction through that time period.
And that's what that means.
The next section would be Section 137B.(2), subparagraph (c), budget test requirements once a maintenance plan is submitted. This clarifies when budgets apply when an area has both a controlled
strategy, State Implementation Plan and a maintenance plan budget. I 

### The next section would be Section 151, exempt , i 

### projects. And that's on page 27, going on to page 28.
On November 21st, 1999, the federal Department
of Transportation published a rule revision to its right-of-way regulation that changed the citation for

emergency or hardship advance land acquisition activities that are currently exempt from the conformity

process.

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The rule was amended to make the conformity
rule fully consistent with the Department of Transportation's December, '99, rule-making.
And that concludes the revisions under the
miscellaneous section.
MS. HERRERA: Thank you.
MS. COOKE: If anyone has any questions.
MS. HERRERA: Does the Board have any questions?
I do. I hope --


### MS. COOKE: Okay.
MS. HERRERA: - - 

### I could follow. Okay.
One is that the language that you're going to

use when you go out to public comment and out to the -- 

### notifying the public, will it be in Spanish and English
if you need -- 

### you have a high percentage of Spanish speakers only? I 

### MS. COOKE: With this regulation, it's not
1 

### really -- 

### it's not going to affect individual public
members. It will affect agencies 

## --
MS. HERRERA: Okay.
MS. COOKE: 

## -- more than the public. In fact, it shouldn't affect the public at all.
MS. HERRERA: Okay.
MS. COOKE: As far as -- 

### I mean, it will ,'.

~ '.


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reduce air pollution, which is good, which will have an
effect -- 

### a good effect on the public, but as far as how
this regulation affects the dealings of 

## --
MS. HERRERA: What's the quick answer, yes or
no?
MS. COOKE: Oh, no. No, it wouldn't.
MS. HERRERA: All right.
And -- 

### oh. Okay.

A conformity lapse.

MS. COOKE: A conformity 

## --
MS. HERRERA: Explain, please.

MS. COOKE: A conformity lapse is when you're required to do an update for your conformity plan on a regular basis. And if you do not get your conformity plan in to the federal government and to EPA and have it
reviewed by a certain time period, you go into what is
called a lapse. You're deficient, basically is what I 

### it's stating.

I 

### And at that point, any federal projects that
have federal monies tied to it come to a halt. You

can't do anything during that lapse when you're deficient. You have to show that you have a conforming plan for future projects. If you do not have a conforming plan, you cannot move forward.
MS. HERRERA: And is there penalization?



## .'.


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MS. COOKE: They take highway funding away.
MS. HERRERA: Okay. Now, if we could go to page 25, Part 93 federal regulations section -- 

### that first area there,

"EPA is not aware of any nonattainment or maintenance

areas that are currently affected by the elimination of
this provision."
What does that mean?
MS. COOKE: I'm sorry. Which --


### MS. BECKER: She's right here.

MS. HERRERA: Page 25, that last.

MS. COOKE: Page 25.
MS. HERRERA: That last sentence.
Could you explain that sentence?
MS. COOKE: Oh, for safety margins. Basically --


### MS. HERRERA: Yes. I 

### MS. COOKE: -- 

### what EPA is stating here, t o m y knowledge, is the fact that it's been 10-plus years since the November 24th, 1993, so most of the actions
that were taken during that time are past gone, that people would not be affected by this because the safety margins that were put into -- 

### in place have already been
used or they're gone. And so there would be new safety margins put into place.

. , 

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## 50

So that's the reason EPA 

### is stating that no

new nonattainment areas would be affected by this,
because they 

### were basing 

### it on such an old 

### -- the original promulgation of the rule.
MS. HERRERA: Okay.
MS. COOKE: SO 

## -- MS. HERRERA: Got you. Thank you very much.
Does the Board have any questions? Okay. Now 

### I can ask.
Does any 

### -- MS. BECKER: 

### I 

### still have some questions 

### -- MS. HERRERA: Oh, go ahead.
MS. BECKER: 

### -- Madam Hearing Officer. 

## Q. (BY 

### MS. BECKER) First, 

### I wanted to clarify
for the record that there 

### is no page 28. You have up
until page 27, and that 

### is the end of the summary of
technical testimony. I 

### I also wanted to just step back and look at
; 

### Section 137F. This 

### is under miscellaneous, and this had

to do with this adequacy process that the Madam Hearing
Officer just referred to.
This 

### is a process, 

### Ms. Cooke, that 

### is required by EPA; 

### is that correct? A 

### three-step process?
A. 

### Yes, 

### it is. Q. And yet for the purpose of -- 

### even though 

### it's

.

# . KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New 

### Mexico 87102 (505) 243-5018 

### - Fax (505) 243-3606

## 5

## 1
required by EPA, the public notification, that would be
under EIB's regulations; is that correct?
A. Yes, it would. 

## Q Which at this point do not require Spanish; is
that correct?
A. That is correct. 

## Q. Okay.
At this point, I'm going to introduce an overview of the final rule for the transportation conformity rule amendments that were published by the

EPA as of July lst, 2004. They've been premarked as
NMED Exhibit 5. Ms. Cooke, do you recognize this document as
the final rule for the amendments of July lst, 2004?
A. Yes, 

## I do. 

## Q Would you please describe who would be
affected by the amendments to this rule? , 

### A. Who will be affected by the amendments to this
i 

### rule would be agencies such as the Air Quality Bureau
and the New Mexico Department of Transportation and metropolitan agencies such as metropolitan planning organizations.
Q. Briefly, what is the delineation of duties
between the New Mexico Environment Department and the

New Mexico Department of Transportation, briefly?



# .. KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

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### 52

A. The Air Quality Bureau seeks to have the EIB adopt the necessary regulations, and both agencies carry
out the regulations.
Q. How will the proposed amendments to 20.2.99
affect the State of New Mexico?

A. At this point in time, there is only one nonattainment area in New Mexico. 

## Q What is that area of nonattainment?
A. There is an Anthony -- 

### there is a nonattainment area in Anthony, New Mexico. It was designated as nonattainment in 1999 for PM,, -- 

### I'm

sorry -- 

### 1991 for PM,,. This nonattainment designation
is due to dust storms. Currently, Anthony's transportation conformity
determination is dealt with on a project-by-project
basis due to the fact that this is -- 

### it is a rural area
and that the nonattainment designation was not caused by,
mobile sources. Q. What is the likelihood of the town of Anthony being redesignated as having attainment status?

A. Right now, it's unlikely. We are currently
still monitoring exceedances in Anthony during high-wind
and also low-wind events. NMED is still researching the
cause of the low-wind exceedances. 

## Q Are there other 

## -- excuse me. Are there any

.

# . KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

### Fax (505) 243-3606

### other areas besides Anthony, New Mexico, that will be
affected by this amendment to the rules upon adoption?

A. Presently, no. Q. Then why is it necessary?
A. What we do 

## -- I asked EPA that, as well. We
do currently have one nonattainment area, although this regulation does not have a big effect on the area. But
these revisions are also required due to the fact that

we cannot guarantee EPA that we will never have a new nonattainment area.
So we have to keep transportation conformity regulations current.
Q. How do the amendments to the conformity rule ensure conformity?

A. Well, it puts a regulatory requirement in place. Transportation plans in nonattainment areas are reviewed by the state and federal government to , 

### determine conformity. It is a proactive, preventative

, L 

### measure to prevent problems before they exist.
Q. Did the Air Quality Bureau provide comments to the EPA prior to the EPA finalizing this rule?

A. Yes, we did.
Q. Were those recommended changes accepted?
A. No, they were not. Q Did the Air Quality Bureau provide a public

. , 

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## 54

comment period for the citizens in the State of New Mexico?

A. Yes, we did.
Q. Would you please explain when and how that was conducted?

A. We published public notice according to EIB's rule-making regulation requiring that the notice be published in a newspaper of general circulation and the
New Mexico Register, which was done.
MS. BECKER: Here I'm going to introduce a
copy of the notice of the public meeting and hearing
that was premarked as NMED Exhibit 6. 

## Q. Ms. Cooke, do you recognize this as the public notice that the Board did publish?

A. Yes, it is. 

## Q Okay.
Was the New Mexico Department of I 

### Transportation specifically notified of these 1 

### amendments?

A. Yes, they were. 

## Q. In your opinion, do the amendments as promulgated by EPA adequately protect the air quality in
New Mexico?

A. Yes, they do. 

## Q. And in your opinion, should the proposed '.



### . '_


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## 5 5

amendments be adopted?

A. Yes. 

## Q. What would happen if the proposed amendments

are not adopted by the Environmental Improvement Board?

A. EPA would issue a notice of deficiency and a federal implementation plan would be put into place.
MS. BECKER: Madam Hearing Officer and members
of the Board, I move to admit into evidence NMED Exhibits 1 through 

### 6.
MS. HERRERA: Does anybody object?

MR. TSO: No.
MS. HERRERA: Okay.
MS. BECKER: And I have 

## --
MS. HERRERA: We can admit them into the
record.
MS. BECKER: Thank you. (Exhibits NMED 1 through 

### 6 were marked for
identification and admitted into evidence.)
MS. BECKER: And I am hoping before the close
of the hearing -- 

### well, let me first state.
Member Tso, if I may ask if the question that

you put to Ms. Cooke to seek additional clarifying
information on precursors, would you like that to be
made as part of the record for today's hearing, or is that something that you would like aside from the

I '. 

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## 56

record?
MR. 

### TSO: I 

### would like it 

### as aside from the record, but if 

### it's required as part of the record, I


### have no problem with that, either. So whatever your legal expertise determines.
MS. BECKER: 

### My understanding 

### is that, no, 

### sir, it 

### is not required. However, 

### we have had someone
from the Air 

### Quality Bureau leave to attempt to get that information today had you wanted 

### it for the record.
So if 

### it's here today prior to the end of this hearing, I 

### will certainly present 

### it to you 

### --
MR. 

### TSO: Good. Thank you.
MS. BECKER: 

### -- and you can check 

### it at that
time. If not, 

### we will present 

### it to you after the hearing for your reading pleasure.
MR. 

### TSO: Good.
MS. BECKER: I 

### have no further questions of 

### , this witness.
i 

### MS. HERRERA: Board?
MR. 

### PETERS: Can I 

### ask a quick question as far

as relevant project experience?
The nonattainment that took place in '95 for
Sunland Park, Santa Teresa and La Union 

### -- I'm here at
the very beginning of the resume. Was that
nonattainment 

### -- did that have to do with dust in the'.

a '. 

### KATHY 

### TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New 

### Mexico 87102 (505) 243-5018 

## - Fax (505) 243-3606

### 57

area or more particulate matter or more ozone?
MS. COOKE: It was ozone. MR. PETERS: And it's kind of a technical question. Is the City of Sunland Park -- 

### is Sunland
Park a city or --


### MS. COOKE: It actually is a city.

MR. PETERS: It is its own -- 

### the racetrack is
its own --


### MS. COOKE: Well, no. There is a City of
Sunland Park. They actually have a municipal
government.
MR. PETER: Okay. Excellent.
That is all.

MS. HERRERA: Any other questions?

MR. TSO: Madam Hearing Officer and Ms. Cooke,

I was just wondering what role the City of Albuquerque's
air quality department had in this State Implementation,
Plan revisions. i 

### MS. COOKE: Actually, they have -- 

### you know they have their own program, and they've actually had to incorporate these revisions also into their transportation conformity rule.
MR. TSO: Okay. Good.
MS. HERRERA: I do have one question along the

same lines as Soren.

.

# .
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MS. COOKE: Okay.

MS. HERRERA: Did you approach or communicate
with El Paso, in Texas?
MS. COOKE: We have been communicating with them, actually, continually for nonattainment and transportation conformity issues in that area, and so they are well aware of the fact that we are updating the

reg, and as well as they also updated their reg, or regulation. I'm sorry.
MS. HERRERA: Okay. Thank you very much.

Does that complete 

## -- we're complete? We're
finished?
MS. COOKE: Yes. Oh.

MS. HERRERA: Yes.
MS. DILLINGHAM: Mine is an overview.

MS. HERRERA: Oh, 

### I'm sorry. I didn't --


### MS. DILLINGHAM: That's okay. p 

### Mine's an overview comment and a question.
L 

### We stated earlier that we are tied into the federal regulations, and we cannot be more stringent than, only because our state legislature has said so,
and that's what we tried to address in the last session.

I was just curious, because I know that Governor Schwarzenegger attempted to reduce his
emissions in his state, and the federal government rfght

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## 59

now is challenging that. Could you please comment on that, and if -- 

### just comment on that in terms of what rights do the

states have in terms of air quality, now, and if we did change our statutes to say no more stringent than? MS. COOKE: Well, right -- 

### as far as transportation conformity?
MS. DILLINGHAM: Um-hum.
MS. COOKE: In respect to transportation conformity?

As far as transportation conformity is
concerned for this area, we don't have the same level of problems right now in New Mexico as in California, and

so that is one reason 

## I am assuming that, in the past, present and probably the future, there will be a push
for that state to be more stringent than EPA. For transportation conformity purposes -- 

### and,

I'm only speaking for transportation conformity
i 

### purposes -- 

### this reg really does not affect the state or the nonattainment areas significantly.

It's due to the fact that it is such a small nonattainment area, and based on the fact that it was designated for something that is nonmobile sources, this

was not caused by vehicle emissions, the actual regulation doesn't play a huge part in that

. '.


### KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

### Fax (505) 243-3606

### 60

nonattainment area.
So as far as the stringency language, I'm not

sure how it would affect transportation conformity in
this state just because we haven't seen -- 

### like I said,

we don't have the same level of nonattainment areas as you would have in California. (Discussion off the record.)
MS. DILLINGHAM: And I might add, also, that 

### I know New Mexico is expected to grow quite rapidly.
MS. COOKE: Yes, yes.
MS. DILLINGHAM: And if you could keep that
in 

# --
MS. COOKE: Oh, yes.
MS. DILLINGHAM: - 

### - 

### your answer, as well.
MS. COOKE: I mean, in the future, like I said, this is also one of the reasons that EPA wanted us
to include this regulation, even though we don't have -7



### we only have one small nonattainment area, is because L 

### there's no guarantee that in the future we're not going

to have -- 

### and it may be in the future that the issue of stringency will play a role in transportation conformity.

But as for right now, I'm not sure, just for transportation conformity, how that would really play,: just because, like I said, it's such a lower -- 

### we 

## ' rd.

. '.


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## 61
not impacted on the same level as, say, California is.

But like I said, I do understand why, in the
past, present and future, they've moved beyond what EPA
has done because of their level of air quality problems.
MS. DILLINGHAM: Thank you.
MS. HERRERA: Any other questions?
MS. DILLINGHAM: Another just budget question.
Do you have the budget to implement these changes -- 

### MS. COOKE: Yes.
MS. DILLINGHAM: - - 

### in the Bureau?
MS. COOKE: (Nods head.)
MS. DILLINGHAM: Thank you.
MS. HERRERA: Okay.

Is there any members of the public that would
like to cross-examine the witness? Okay. p 

### Are there any persons who have signed up to
[ 

### provide nontechnical testimony at this time?

Do we have just one?
MS. COOKE: Thank you.
MS. HERRERA: Thank you. And what we usually do is each person that signed up on the sheet back there testifies in the same order, so -- 

### go ahead and come forward and sit down.".

. '.


### KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

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### 62

Jeff.

MR. FREDINE: Fredine.

MS. HERRERA: Just one person, Jeff.
Hey.
JEFF FREDINE having been first duly sworn or affirmed, was
examined and testified as follows:
DIRECT TESTIMONY

THE REPORTER: Would you state your name and spell it for me?

MR. FREDINE: Jeff Fredine, J-E-F-F

F-R-E-D-I-N-E.
MS. HERRERA: And then before you proceed, I
have to remind you that the testimony that you're going

to give this morning has to be limited to the proposed
rule amendments only, and no testimony unrelated to the proposed rule amendments will be taken. I 

### So in your statement this morning, just keep

Ii 

### that as in consideration. Okay?

MR. FREDINE: Yes, ma'am.
MS. HERRERA: All right. You could go ahead and proceed.

MR. FREDINE: Hello. And thank you for letting me speak this morning.
My name is Jeff Fredine. I work for the ',

,'.


### KATHY TOWNSEND COURT REPORTERS

. 

### 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 

### - 

### Fax (505) 243-3606

## 63

Environmental Section of the Department of Transportation, and I've been authorized to speak for
the Department on this issue.
Based on our review of the proposed changes to the conformity regulations, we find them to be
consistent with EPA-mandated changes. And, further, the proposed changes also reflect our recent transition from

a highway department to a department of transportation.
And as such, the DOT supports the proposed changes as currently presented.
And we would also like to commend NMED for their responsiveness and efforts in attending to these required adjustments.
Thank you very much. That's all.
MS. HERRERA: Does the Board have any questions or wish to cross-examine this witness? Okay. I


### Does anybody else wish to cross-examine this
i 

### witness?
See, it wasn't so hard, was it?

MR. FREDINE: It was painless.
Thank you.
MS. HERRERA: Thank you. Okay. New Mexico Environment Department closing argument -- 

### or statement. I

I -. 

### KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

### Fax (5051 243-3606

### 64

Do you have a closing statement?
MS. BECKER: Yes, we do.
MS. HERRERA: Come forward, present it, please.
MS. BECKER: In closing, Mr. Tso, we do not
have that information at the ready. However, we will certainly get it to you. However, it will not be made part of the record.

As you have heard here today, the New Mexico
Environment Department, through the Air Quality Bureau, is seeking to adopt verbatim all of the changes as promulgated by the EPA regarding transportation conformity.
The testimony today was that the amendments

are necessary and potentially beneficial to New Mexico

to continue to protect air quality in the state.
You heard that even though there is a minimal, impact that these amendments have on New Mexico today, , i 

### these rules have been created to prevent nonattainment

areas from occurring and before they do exist.

You also heard that the public notice requirements pursuant to the Board's regulations were

met and that the New Mexico Department of Transportation, an agency that does have a significant
role in the implementation of these rules, is in full

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

### Fax (505) 243-3606

## 65

support of these amendments.
We ask that you adopt these amendments as proposed.
Thank you.
MS. HERRERA: The record of this public hearing is now closed. (Proceedings adjourned at 10:28 a.m.)

.'.


### KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018 - 

### Fax (505) 243-3606

## 66

STATE OF NEW MEXICO ) ) 

### ss.
COUNTY 

### OF BERNALILLO )



### I, 

### CHERYL ARREGUIN, 

### the officer before whom the foregoing proceeding was taken, do hereby certify that
the witnesses whose testimony appears in the foregoing transcript were duly sworn or affirmed; that I 

### personally recorded the testimony by machine shorthand;
that said transcript 

### is a true record of the testimony given by said witnesses; that I 

### am neither attorney nor counsel for, nor related to or employed by any of the parties to the action in which this proceeding 

### is taken,
and that I 

### am not a relative or employee of any attorney

or counsel employed by the parties hereto or financially
interested in the action. I 

# ~XWZ Qw.w*- ',



### NOTARY 

### PUB~IC / 

### CCR 

### License Number: 21 Expires: 12/31/05

My Commission Expires: 12/12/07

, 

## <.
KATHY 

### TOWNSEND COURT 

### REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New 

### Mexico 87102 (505) 243-5018 - Fax (505) 243-3606