Bill Richardson 

Governor 

State of New Mexico 

ofice of the 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 of publication, 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 

B Rlmw 

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.. .. .d:. .... -6XA. .h?. .%%. . &,& ,.! 

State Capitol Room 400 Santa Fe, New Mexico 87501 505-476-2200 www.governor.state.nrn.us 
20E: SEP 1 5 4: i 9: 5 

NMAC TRANSMITTAL FORM 

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Date Sianed 
This is an amendment to 20.2.99 NMAC, Sections 2,7, 109, 1 12-1 18, 120-123, 125, 128-129, 135-140, and 143- 

154, effective 1011 5/05. 

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 improvement board (see also 20.2.99.6 

NMAC). 

A. The provisions of this part shall apply i11 all non-attainment and maintenance areas for 

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

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

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

nominal 10 micrometers (PM10) and particles with an aerodynamic diameter less than or equal to a nominal 2.5 

micrometers (PM2.5). 

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

nonattainment or maintenance areas: 

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

(2) nitrogen oxides in nitrogen dioxide areas; and 

(3) volatile organic compounds andlor, nitrogen oxides, [~IxUWN] in PMlO areas if: 

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

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

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

problem and has so notified the MPO (or the -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 emissions as part of the reasonable further progress, attainment or maintenance strategy. 

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

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

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

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

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

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

[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) of the CAA for redesignation to attainment, unless the 

applicable implementation plan specifies that the provisions of this part shall apply for more than 20 years. 

[12/14/94; 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., US EPA regulations, US DOT regulations, and 20.2.2 NMAC (Definitions), in that 

order of priority. 

A. "1-hour ozone NAAQS" means the 1-hour ozone 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) of the CAA and means the 

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

Section 1 10 (of the CAA), promulgated under Section 1 10(c), or promulgated or approved pursuant to regulations 

promulgated under Section 301(d) and which implements the relevant requirements of the CAA. 

[BID. "CAA" means the 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 contribute to a new violation of a standard in the area substantially affected by the 

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

question, if the project were not implemented, or 

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

new violation of a standard in such area. 

[B]E. "CFR" means the code of federal regulations. 

20.2.99 NMAC 
[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 analyses which serve as the basis for the conformity determination. 

[&]I. "Conformity determination" means the demonstration of consistency with motor vehicle 

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

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

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

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

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

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

milestones in any area. 

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

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

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

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

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

through 20.2.99.124 NMAC. 

[4]& "Control strategy implementation plan revision" is the [v] implementation 

plan which contains specific strategies for controlling the emissions of and reducing ambient levels of pollutants in 

order to satisfy CAA requirements for demonstrations of reasonable further progress and attainment (including 

implementation plan revisions submitted to satisfv CAA 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 applicable CAA 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 separated highway, reserved right-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 of project, 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 inside the 

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 of US DOT. 

[MIQ. "FHWAIFTA project", for the purpose of this part, is any highway or transit project which is 

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

transit program, or requires federal highway administration (FHWA) or federal transit administration (FTA) 

approval for some aspect of the project, such as connection to an interstate highway or deviation from applicable 

design standards on the interstate system. 

PIE. "Forecast period" with respect to a transportation plan 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 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 if no 

additional transportation improvements in the area are made; and 

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

improvements. 

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

20.2.99 NMAC 2 
system in accordance with 20.2.99.125 NMAC. 

[RIY. "Hot-spot analysis" is an estimation of likely future localized CO and PM10 pollutant 

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

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

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

model to determine the effects of emissions on air quality. 

[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 greater concentration than previously existed andlor would otherwise exist 

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

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

part of anv metropolitan planning area as designated under the transvortation planning regulations. Isolated rural 

areas do not have federally reauired metropolitan transportation plans or TIPS and do not have proiects that are part 

of the emissions in such areas are instead included in statewide transvortation improvement programs. These are not 

donut areas. 

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

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

Z. "~imited-maintenance plan" is a maintenance plan that EPA has determined meets EPA's 

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

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 of the United States previously designated 

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

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

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

amended. 

[W]g. "Metropolitan planning organization @lPO)" 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 

[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 required bv the applicable CAA provision for reasonable further progress towards 

attainment. 

[VIM. "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 hrther progress milestones or demonstrating attainment or maintenance of the 

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

emissions. 

[ZIAJ. "National ambient air quality standards (NAAQS)" are those standards established pursuant to 

Section 109 of the CAA. 

[+WAG- "NEPA" means the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 

432 1, et seq. 

[MIAH. "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 fmding of no significant impact, or to issue a record of decision on a final environmental impact 

statement under NEPA. 

[MJAI. "[NMWTEl] NMDOT" means the New Mexico [',-'PI department 

of transportation or its successor agency or authority, as represented by the department secretary or his or her 

designee. 

[AM. "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. 

20.2.99 NMAC 
[M]&."Protective finding" means a determination by US EPA that a submitted control strategy 

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

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

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

[MIAM. "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 govenunent that routinely receives title 23 U.S.C. or 

federal transit law funds to construct FHWAETA projects, operate FHWAETA projects or equipment, purchase 

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

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

their own employees. 

[MIAN. "Regionally significant project" means a transportation project (other than an exempt 

project) that is on a facility which serves regional transportation needs (such as access to and fiom the area outside 

of the region, major activity centers in the region, major planned developments such as new retail malls, sports 

complexes, etc., or transportation terminals, as well as most terminals themselves) and would normally be included 

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

(1) all principal arterial highways; and 

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

[MI&. "Safety margin" means the amount by which the total projected emissions fiom all sources of a 

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

progress, attainment, or maintenance. 

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

[fwi@. "State implementation plan (SIP)" means an applicable implementation plan and the 

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

which has been approved under Section 1 10, or promulgated under Section 1 10(c), or 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"). 

[+WAR "Title 23 U.S.C." means title 23 of the United States Code. 

[MIAS. "Transit" is mass transportation by bus, rail, or other conveyance which provides 

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

or sightseeing services. 

[+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 the jurisdiction of local transit agencies, such as changes in routes, 

schedules, or fares. It may consist of several phases. For analytical purposes, it shall be defined inclusively enough 

to: 

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

scope; 

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

additional transportation improvements in the area are made; and 

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

improvements. 

L@]LW. "Transportation control measure (TCM)" is any measure that is specifically identified 

and committed to in the SIP that is either one of the types listed in Section 108 of the CAA, or any other measure for 

the purpose of reducing emissions or concentrations of air pollutants fiom 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 fiom vehicles under fixed traffic conditions are 

not TCMs for the purposes of this part. 

[WAY. "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. [fw Ax!!. "Transportation plan" means the official intermodal metropolitan transportation plan 

that is developed through the metropolitan planning process for the metropolitan planning area, developed pursuant 

to 23 CFR part 450. 

[+=]AX. "Transportation project" is a highway project or a transit project. 

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

[MIA& "US DOT" means the United States department of transportation. 
[MlBG- "Written commitment" for the purposes of this part means a written commitment that 

includes a description of the action to be taken; a schedule for the completion of the action; a demonstration that 

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

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

[12/14/94; 11/23/98; 20.2.99.7 NMAC - Rn, 20 NMAC 2.99.107 10/31/02; A, 10/15/05] 

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 [-I 

NMDOT in the absence of an MPO) or US DOT; 

(b) the adoption, acceptance, approval or support of TIPS and TIP amendments developed 

pursuant to 23 CFR part 450 or 49 CFR part 613 by an MPO (or [-I NMDOT in the absence of an 

MPO) or US DOT; and 

(c) the approval, funding, or implementation of FHWAIFTA projects. 

(2) Conformity determinations are not required under this part for individual projects which are not 

FHWAtFTA projects. However, 20.2.99.140 NMAC applies to such projects if they are regionally significant. 

B. Geographic and pollutant applicability are set out in 20.2.99.2 NMAC (Scope). 

C. 

[L 

Limitations. . . 

(3: 'ha 

. . 

. . -1 In order to receive 

anv FHWAIFTA approval or funding actions. including NEPA avvrovals. for a proiect phase subiect to this subpart, 

a currently conforming transportation plan and TIP must be in place at the time of proiect av~roval 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 period for new nonattainment areas. For areas or 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 subsequentlv redesignated to nonattainment or designated nonattainment for anv standard for anv of 

these pollutants. the provisions of this subpart shall not apvlv with respect to that standard for 10 months 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, 20 NMAC 2.99.109 10/31/02; A, 1011 5/05] 

20.2.99.112 FREQUENCY OF CONFORMITY DETERMINATIONS - TRANSPORTATION PLANS. 

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

by the MPO (or [-I 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 [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 

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 analysis) no less frequently than every 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. 

20.2.99 NMAC 
[12/14/94; 1 1/23/98; 20.2.99.112 NMAC - Rn, 20 NMAC 2.99.1 12 1013 1/02; A, 1011 5/05] 

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 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 OF CONFORMITY DETERMINATIONS - PROJECTS. FHWAJFTA 

projects must be found to conform before they are adopted, accepted, approved, or funded. Conformity must be 

redetermined for any FHWAIFTA project [- 

. . 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) acquisition of a significant portion of the right-of-way; and 

(4) construction (including federal approval of plans. specifications and estimates); or 

{C) initiation of a sup~lemental environmental document for air aualitv purposes. 

[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[:], Conformity of existing 

transportation plans and TIPS shall be redetermined within eighteen (1 8) 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. -r 24, !??%I 

[B]& the date of the department's initial submission to US EPA of each control strategy implementation 

plan or maintenance plan establishing a motor vehicle emissions budget; 

[€]B. the effective date of US EPA approval of a control strategy implementation plan revision or 

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

in a conformity determination prior to approval; and TTC CD . . [C. -1 

[BIG. the effective date of US 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 15 NMAC - Rn, 20 NMAC 2.99.1 15 1013 1/02; A, 10/15/05] 

20.2.99.1 16 CONSULTATION. 

A. 20.2.99.1 16 NMAC through 20.2.99.124 NMAC provide procedures for the interagency (federal, 

state, and local) consultation process, resolution of conflicts, and public consultation. Public consultation 

procedures will be developed in accordance with the requirements for public involvement in 23 CFR part 450. The 

affected agencies listed in Subsection C of 20.2.99.1 16 NMAC shall undertake a consultation process with each 

other prior to the development of: 1) conformity determinations, 2) major activities listed in 20.2.9.1 17 NMAC 

20.2.99 NMAC 6 
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 

20.2.99.1 19 NMAC below. 

B. Prior to EPA's approval of this part, any MPO (or [-I NMDOT in the absence of an 

MPO) and [-I NMDOT, before making any 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 offices, FTA region 6 off~ces, and EPA region 6, 

including consultation on the issues described in 20.2.99.1 17 NMAC. This opportunity for consultation shall be 

provided prior to the determination of conformity. 

C. Affected agencies[+], 

(1) Agencies which are affected by this part and which are required to participate in the consultation 

process are: 

(a) the designated MPO for the nonattainment or maintenance area; 

(b) the department; 

(c) NMDOT; 

(d) the local transportation agency for the county or city in which the nonattainment or 

maintenance area is located; 

(e) the local transit agency for the city or county in which the nonattainment or maintenance 

area is located; 

(f) EPA Region 6; 

(g) New Mexico FHWA division offices; 

(h) FTA region 6; 

(i) local air quality agencies; and 

(j) any other organization or resource agency within the state responsible under state law for 

developing, submitting or implementing transportation-related provisions of an implementation plan. 

(2) Agencies which may be affected by this part and which are entitled to participate in the 

interagency consultation process include: 

(a) [-I NMDOT district office for the county in which the nonattainment or 

maintenance area is located; and 

(b) 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 NMDOT: secretary or 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 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 

(b) the policy level points of contact for all agencies and organizations which are entitled to 

participate and have submitted a written request to participate in the conformity process. 

[12/14/94; 11/23/98 ; 20.2.99.1 16 NMAC - Rn, 20 NMAC 2.99.116 1013 1/02; A, 10/15/05] 

20.2.99.117 AGENCY ROLES IN CONSULTATION. Specific roles of the agencies participating in the 

interagency consultation process are listed below. Specific responsibilities of the agencies participating in the 

interagency consultation process are listed in 20.2.99.1 18 NMAC. For the purposes of this part, the lead agency for 

all conformity processes and procedures is that agency which is responsible for initiating the consultation process, 

preparing the initial and final drafts of the document or decision, and for assuring the adequacy of the interagency 

20.2.99 NMAC 7 
consultation process. 

A. The department shall be the lead agency for the development of: 

(1) applicable control strategy implementation plan revisions for the nonattainrnent or maintenance 

area; 

(2) the list of TCMs to be submitted as part of the SIP; and 

(3) any amendments or revisions thereto. 

B. In the case of areas in which an MPO has been established, the designated MPO for the 

nonattainment or maintenance area shall be the lead agency for: 

(1) the development of the unified planning work program under 23 CFR 450.3 14; 

(2) development of the transportation plan for the 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 [GI 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, [-I NMDOT shall be 

the lead agency for: 

(1) the development of the transportation plan for the nonattainrnent or maintenance area; 

(2) development of the TIP (transportation improvement program) for the nonattainment or 

maintenance area; 

(3) any amendments or revisions thereto; 

(4) any determinations of conformity under this part for which an MPO would be otherwise 

responsible; 

(5) choosing conformity tests and methodologies for isolated nual 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; 20.2.99.1 17 NMAC - 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 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 for use in air quality analysis to determine conformity of transportation plans, TIPs, 

and projects; 

(4) monitoring regionally significant projects; 

(5) developing system- or facility-based or other programmatic (non-regulatory) TCMs; 

(6) providing technical input on emissions budgets; and 

(7) performing transportation modeling, regional emissions analyses and documentation of timely 

implementation of TCMs needed for conformity assessments. 

C. [-I NMDOT shall be responsible for: 

(1) providing technical input on proposed 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. 

20.2.99 NMAC 
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 20.2.99.1 16 through 20.2.99.124 NMAC; and 

(2) providing guidance on conformity and the transportation planning process to agencies 

participating in the interagency consultation process. 

E. EPA region 6 shall be responsible for providing guidance on conformity criteria and procedures to 

agencies participating in the interagency consultation process. 

[12/14/94; 11/23/98; 20.2.99.1 18 NMAC - Rn, 20 NMAC 2.99.1 18 1013 1/02; A, 10/15/05] 

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 shall be the agencies specified in Subsection C 

of 20.2.99.1 16 NMAC above. 

A. Evaluation and choice of each model (or models) and associated methods and assumptions to be 

used in hot-spot analyses and regional emissions analyses, including vehicle miles traveled (VMT) forecasting. The 

lead agency shall be the MPO (or NMDOT in the absence of an MPO). 

B. Determination of which minor arterials and other transportation projects should be considered 

"regionally significant" for the purposes of regional emissions analysis (in addition to those functionally classified as 

principal arterial or higher or fixed guideway systems or extensions that offer an alternative to regional highway 

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 [the4MWW] NMDOT in the absence of an 

MPO). 

C. Evaluation of whether projects otherwise exempted from meeting the requirements of this part 

(see 20.2.99.149 NMAC) should be treated as non-exempt in cases where potential adverse emissions impacts may 

exist for any reason. The lead agency shall be the MPO (or[-] NMDOT in the absence of an MPO). 

D. Determination, as required by Paragraph (1) of Subsection C of 20.2.99.132 NMAC of whether 

past obstacles to implementation of TCMs which are behind the schedule established in the SIP have been identified 

and are being overcome, and whether state and local agencies with influence over approvals or hnding for TCMs 

are giving maximum priority to approval or funding for TCMs. Consultation shall also include consideration of 

whether delays in TCM implementation necessitate revisions to the SIP to remove TCMs or substitute TCMs or 

other emission reduction measures. The lead agency shall be the MPO (or [-I NMDOT in the absence 

of an MPO). 

E. Determination, as required by 20.2.99.140 NMAC, of whether: 

(1) the project is included in the regional emissions analysis supporting the currently 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 agency 

shall be the MPO (or [-I NMDOT in the absence of an MPO). 

G. Verification of what forecast of vehicle miles traveled (VMT) to use in developing SIPS. The lead 

agency shall be the air quality bureau of the department. 

H. Consultation, within the context of a memorandum of agreement, on emissions analysis for 

transportation activities which cross the borders of MPOs or nonattainment areas or air basins. The lead agency 

shall be [-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 20.2.99.1 1 1 NMAC through 

20.2.99.1 15 NMAC. The lead agency shall be the MPO (or [-I NMDOT in the absence of an MPO). 

J. In the event that the metropolitan planning area does not include the entire nonattainment or 

maintenance area, an interagency consultation process involving the designated MPO for the nonattainment or 

maintenance area, NMDOT, local transportation agencies, and the department, shall be undertaken, 

in the context of an MOA, for cooperative planning and analysis for purposes of determining conformity of all 

projects outside the metropolitan area and within the nonattainment or maintenance area. The lead agency shall be 

20.2.99 NMAC 
[-I 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 agreement 

or a memorandum of understanding reflecting their consultation. 

M. Choosing conformity tests and methodologies for isolated rural nonattainment and maintenance 

areas, as required by Subparagraph (c) of Paragraph (2) of Subsection [GI Lof 20.2.99.128 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 CONSULTATION PROCEDURES FOR SPECIFIC ROUTINE ACTIVITIES. An 

interagency consultation process among the lead and participating agencies shall be undertaken for the following 

routine activities in accordance with all the procedures specified in 20.2.99.11 9 NMAC. The lead agency for each 

activity shall be as specified, and the participating agencies shall be the agencies specified in Subsection C of 

20.2.99.1 16 NMAC above or as specified for the specific activity. Not later than thirty (30) days prior to the 

preparation of the final document or decision, the lead agency shall supply all relevant information and documents, 

as appropriate, to the participating agencies. 

A. Identification, as required by Subsection B of 20.2.99.146 NMAC, of projects located at sites in 

PMlO nonattainment areas which have vehicle and roadway emission and dispersion characteristics which are 

essentially identical to those at sites which have violations verified by monitoring, and therefore require quantitative 

PMlO hot-spot analysis. The lead agency shall be either the MPO or [th&MSKB] NMDOT, in cooperation with 

the department. 

B. Assumption of the location and design concept and scope of projects which are disclosed to the 

MPO, as required by Subsection D of 20.2.99.121 NMAC, but whose sponsors have not yet decided these features 

in sufficient detail to perform the regional emissions analysis according to the requirements of 20.2.99.14 1 NMAC 

through [2KLWM5] 20.2.99.147 NMAC. 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, and funding of research and data collection efforts; and regional 

transportation model development by the MPO (e.g., householdltravel transportation surveys). The lead agency 

shall be either the -1 NMDOT or the MPO, as applicable. Participating agencies shall be the MPO, the 

department, and the -1 NMDOT. 

D. Regionally Significant Non-FHWNFTA 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 deparhnent, [-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 to the 

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) any policy 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 any indebtedness for the facility; 

(e) any final action of a board, commission or administrator authorizing or directing employees 

to proceed with design, permitting or construction of the project; or 

(0 the execution of any contract to design or construct; or any approval needed for any facility 

that is dependent on the completion of regionally significant project. 

(3) In the case of any such regionally significant project that has not been disclosed in a timely 

manner to the designated MPO for the nonattainment or maintenance area, [-I NMDOT, and other 

interested agencies participating in the consultation process, such regionally significant project and all other 

20.2.99 NMAC 
regionally significant projects of that sponsor shall be deemed to be not included in the regional emissions analysis 

supporting the currently conforming TIP's conformity determination and to be not consistent with the motor vehicle 

emissions budget in the SIP, for the purposes of 20.2.99.140 NMAC. In the case of repeated failures to disclose 

regionally significant projects by an agency that becomes aware of any such project through applications for 

approval, permitting or funding, all other regionally significant projects within the jurisdiction of such agency shall 

be deemed to be not included in the regional emissions analysis supporting the currently conforming TIP's 

conformity determination and to be not consistent with the motor vehicle emissions budget in the SIP, for the 

purposes of 20.2.99.140 NMAC. 

(4) For the purposes of this section (20.2.99.12 1 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 fiom the MPO that the project may be adopted or approved. 

[12/14/94; 1 1/23/98; 20.2.99.121 NMAC - Rn, 20 NMAC 2.99.121 1013 1/02; A, 1011 5/05] 

20.2.99.122 NOTIFICATION PROCEDURES FOR ROUTINE ACTIVITIES. Notification of affected 

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

TIP revisions or amendments which merely add or delete exempt projects listed in 20.2.99.149 NMAC, shall be the 

affirmative responsibility of [-I 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 

20.2.99.1 16 NMAC) early in the process of decision on the final document; and 

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

in Paragraph (1) of Subsection C of 20.2.99.1 16 NMAC). 

[12/14/94; 11/23/98; 20.2.99.122 NMAC - Rn, 20 NMAC 2.99.122 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 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 fourteen-day period 

shall commence when the MPO or [th4WWH3] NMDOT has confirmed receipt by the secretary of the 

department of the resolution of the comments of the department. If the department appeals to the governor, the final 

conformity determination must have the concurrence of the governor. The department must provide notice of any 

appeal under this Subsection to the MPO and [-I NMDOT. If the department does not appeal to the 

governor within fourteen (14) days, the MPO or -1 NMDOT may 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, [-I 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 [-I NMDOT of the resolution of all comments on such determination of 

conformity or policy decision. Such fourteen-day period shall commence when the MPO has confirmed receipt by 

the secretary of the department or [-I NMDOT of the resolution of the comments of [-I 

NMDOT. If [-I NMDOT appeals to the governor, the final conformity determination must have the 

concurrence of the 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 of hearing any such appeal under this Subsection and of 

deciding whether to concur in the conformity determination to another official or agency within the state, but not to 

the head or staff of the department or any local air quality agency, [-] NMDOT, a state transportation 

commission or board, any agency that has responsibility for one of these functions, or an 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 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 accordance 

with 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 implementation 

plan provisions and 20.2.99.11 6 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 transportation analysis zones; each added or modified highway segment shall also be sufficiently identified 

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

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

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

operating policies sufficiently to allow modeling of their transit ridership; the description of additions and 

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

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

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

intermodal activities, shall be described. 

B. rL . . (1 .. . TWOyear grace period for transportation plan requirements in certain ozone and CO areas. The requirements of 

Subsection A of 20.2.99.125 NMAC applies to such areas or portions of such areas that have previously not been 

reauired to meet these requirements for any existing NAAOS two years from the following: 

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

than 200.000 to serious or above; 

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

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

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

area that has an urbanized area povulation greater than 200.000 as serious or above. 

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

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

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

transportation system envisioned for the hre 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 1013 1/02; A, 10/15/05] 

20.2.99.128 CRITERIA AND PROCEDURES FOR DETERMINING CONFORMITY OF 

TRANSPORTATION PLANS, PROGRAMS, AND PROJECTS - GENERAL. 

20.2.99 NMAC 
A. In order for each transportation plan, 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 satisfied and the 

MPO and US DOT must comply with all applicable conformity requirements of implementation plans and of court 

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

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

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

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

20.2.99.138 NMAC which apply for transportation plans, TIPs, and FHWA/FTA projects. Subsections C through 

[F] I of this section (20.2.99.128 NMAC) explain when the budget, interim emission [~duetk~], and hot spot tests 

are required for each pollutant and NAAOS. Subsection J of this section (20.2.99.128 NMAC) addresses 

conformi@ requirements for areas with approved or adequate limited maintenance plans. Subsection K of this 

section (20.2.99.128 NMAC) addresses nonattainment maintenance areas which EPA has determined have 

insignificant motor vehicle emissions. Subsection [GI L of this section (20.2.99.128 NMAC) addresses isolated 

rural nonattainment and maintenance areas. Table 1 follows. Table 1. Conformity Criteria. 

(1) All actions at all times 

(a) 20.2.99.129 NMAC. Latest planning assumptions 

(b) 20.2.99.130 NMAC. Latest emissions model 

(c) 20.2.99.13 1 NMAC. Consultation 

(2) Transportation Plan 

(a) Subsection B of 20.2.99.132 NMAC. TCMs 

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

[Blgmissions [td+i&km] 

(3) TIP 

(a) Subsection C of 20.2.99.132 NMAC. TCMs 

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

LElgmissions [edwtkm] 

(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 fkom a conforming plan and TIP 

(c) 20.2.99.135 NMAC. CO and PMlO hot spots 

(d) 20.2.99.136 NMAC. PM10 and PM2.5 control measures 

(5) Project (Not from a conforming plan and TIP) 

(a) Subsection D of 20.2.99.132 NMAC. TCMs 

(b) 20.2.99.133 NMAC. Currently conforming plan and TIP 

(c) 20.2.99.135 NMAC. CO 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 and/or interim 

emissions [~edwtim] 

C. 1-hour [Qlozone nonattainment and maintenance areas. This Subsection (Subsection C of Section 

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

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

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

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 nonattainment and maintenance areas the budget test must be satisfied as 

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

a) [) . . 

s] the effective data EPA's finding that a motor vehicle emissions budget in a 

submitted control strateev implementation plan revision or maintenance plan for the 1-hour ozone NAAOS is 

adequate for transportation conformitv purposes; 

(b) [

. . . . [

J!E 

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

fc) the effective state of EPA's approval of 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 required to submit a control strategy implementation plan 

revision for the 1-hour ozone NAAOS (usually moderate and above areas), the interim emissions [~c&&k] tests 

must be satisfied as required by 20.2.99.138 NMAC for conformity determinations made when there is no approved 

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

adequate motor vehicle emissions budget form a submitted control stratem implementation plan revision or 

maintenance ulan for the 1-hour ozone NAAOS. 

[[ . . 

. . *

(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, if the implementation plan or plan submission that is applicable for the purposes of 

conformity determinations is a fifteen percent (15%) plan or phase I attainment demonstration that does not include 

a motor vehicle emissions budget for NOx. The implementation plan for the 1-hour ozone NAAOS 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 fiom NOx emissions levels in 1990. 

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

submit a control strategy implementation plan revision for the 1-hour 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 emissions budget(s) and a reasonable further ProILress or an attainment 

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

[&m&d] motor vehicle emissions budget(s) (as described in Paragraph (1) of Subsection C of 20.2.99.128 

NMAC). 

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

above ozone nonattainment areas with three years of clean data for the 1-hour ozone 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 1 -hour NAAOS must satisfy one of the 

following requirements: 

(a) the interim emissions [zdwtkm] 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 for the 1 -hour ozone NAAOS. 

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

budgets for the 1 -hour ozone NAAOS for any portion of the 8-hour nonattainment area. This Subsection 

(Subsection D of Section 20.2.99.128 NMAC) applies to areas that were never designated nonattainment for the 1- 

hour ozone NAAOS but that never submitted a control strategy SIP or maintenance plan 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 of EPA's nonattainment designation for the 8-hour ozone NAAOS for an area. according 

to Subsection D of 20.2.99.109 NMAC. In the addition to the criteria listed in Table 1 in Subsection B of 

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

maintenance areas conformitv determinations much 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 maintenance areas the budget test much be satisfied as 

required by Section 20.2.99.137 NMAC for conformity determinations made on or after; 

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

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

transportation conformitv purposes; 

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

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

approval is completed through direct final rulemaking 

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

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 required by Section 20.2.99.138 NMAC for conformity 

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

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

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

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

required bv Section 20.2.99.138 NMAC. if the implementation plan or plan submission that is applicable for the 

purposes of conformity determination is a fifteen percent (1 5%) plan or other control strategy SIP that addresses 

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

plan for the &hour ozone NAAOS will be considered to establish a motor vehicle emissions budget for NOx if the 

implementation plan or plan submission contains an explicit NOxmotor 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 ffom NOx 

emissions levels in 2002. 

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

to submit a control strategy im~lementation plan revision for the &hour ozone NAAOS (usuallv marginal and 

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

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

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

NAAOS that contains motor vehicle emissions budget(s) and a reasonable further progress or attainment 

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

approved motor vehicle emissions budget(s) (as described in Paragraph (1) of Subsection D of 20.2.99.128 NMACI. 

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

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

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

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

requirements: 

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

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 

ozone NAAOS (subiect to the timinv requirements of Paranaph (1) of Subsection D of 20.2.99.128 NMAC: or 

Ic) the budget test as required by Section 20.2.137 NMAC, using the motor vehicle emissions 

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

established by the EPA rulemaking that determines that the area has clean data for the 8-hour ozone NAAOS. 

E. 8-hour ozone NAAOS nonattainment and maintenance areas with motor vehicle emissions 

budgets for the 1 -hour ozone NAAQS that cover all or a portion of the 8-hour nonattainment area. This provision 

applies one (1) vear after the effective date of EPA's nonattainment desiaation 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 in Table 1 in 

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

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

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

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

required by Section 20.2.99.137 NMAC for conformity determinations made on or after: 

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

control stratem implementation plan revision or maintenance plan for the 8-hour ozone NAAOS is adequate for 

transportation conformity pumoses; 

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

Jc) the effective date of EPA's approval of such a budget in the federal register. - is such 

approval is completed through direct final rulemaking. 

(2) Prior to Paragraph (1) or Subsection E of this section (20.2.99.128 NMAC) applying, the 

following test(s) must be satisfied, subject to the exception in Subparawaph (e) of Paramaph (2) of Subsection E of 

this section (20.2.99.128 NMAC). 

(a) If the &hour ozone nonattainment area covers the same geographic area as the 1 -hour 

20.2.99 NMAC 
ozone nonattainment or maintenance area(s) . the budget test as reauired by Section 20.2.99.137 NMAC using the 

approved or adequate motor vehicle emissions budgets in the 1-hour ozone applicable implementation vlan or 

imvlementation plan submission. 

/b) If the 8-hour ozone nonattainment area covers a smaller geographic area within the 1-hour 

ozone nonattainment or maintenance area(s), the budget test as required by Section 20.2.99.137 NMAC for either 

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

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

portion(s1 can reasonablv be identified through the interagencv consultation process required by Section 20.2.99.1 16 

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

hour ozone applicable imvlementation vlan or implementation vlan submission. If additional emission reductions 

are necessary to meet the budget test for the 8-hour ozone NAAOS in such cases, these emissions reductions must 

come fiom within the 8-hour nonattainment area. 

Jc) If the &hour ozone nonattainment area covers a larger geoaaphic area and encompasses 

the entire 1-hour ozone nonattainment or maintenance area(s) the budget test as reauired by Section 20.2.99.137 

NMAC for the portion of the 8-hour ozone nonattainment area covered by the approved 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 20.2.99.138 NMAC for either: the vortion of the 8-hour ozone 

nonattainment area not covered bv the avvroved or adequate budgets in the 1-hour ozone imvlementation plan, the 

entire 8-hour ozone nonattainment area. or the entire vortion of the 8-hour ozone nonattainment area within an 

individual state, in the case where separate 1-hour SIP budgets are established for each state of a multi-state 1-hour 

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

(dl If the 8-hour ozone nonattainment area partiallv covers a 1 -hour ozone nonattainment of 

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

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

budgets in the 1-hour ozone applicable implementation plan or implementation vlan submission where they can be 

reasonablv identified through the interagency consultation process required bv Section 20.2.99.1 16 NMAC : and the 

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

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

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

nonattainment area within an individual state. in the case where sevarate 1-hour SIP budgets are established for each 

state in a multi-state I -hour nonattainment or maintenance area. 

(e) Notwithstanding Subparaaavhs (a). Ib). (c), and (d) of Paragraph (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 vehicle emissions budget in the 1-hour ozone apvlicable 

implementation vlan(s) or imvlementation plan submission(s) for the relevant area or vortion thereof is not the 

appropriate test and the interim emissions tests are more appropriate to 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 of the 8-hour ozone standard. as determined through the interagency consultation process required 

bv Section 20.2.99.1 16 NMAC. 

/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 only implementation plan or plan submission that is applicable for 

the purposes of conformity determinations is a fifteen percent (15%) plan or other control stratem SIP that 

addresses reasonable further vrom-ess that does not include a motor vehicle emissions budget for NOx. The 

implementation plan for the 8-hour ozone NAAOS will be considered to establish a motor vehicle emissions budget 

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

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

reduction fiom NOx emissions levels in 2002. Prior to an adequate or approved NOxmotor vehicle emissions 

budget in the implementation plan submission for the 8-hour ozone NAAOS. the implementation plan for the 1-hour 

ozone NAAOS will be considered to establish a motor vehicle emissions budget for NOx-if the implementation vlan 

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

emissions. and the NOx motor vehicle emission budget is a net reduction 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 subject to the Clean Air Act reasonable fiuther promess and 

attainment demonstration requirement for the 8-hour ozone NAAOS must satisfb one of the following requirements: 

(a) the budget test and/or interim emissions tests are required by Sections 20.2.99.137 NMAC 

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

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 implementation plan for the 8-hour 

ozone NAAOS (subiect to the timing requirements of Paracrravh (1) of Subsection E of 20.2.99.128 NMAC: or 

Jc) the budget test as required by Section 20.2.99.137 NMAC. using the motor vehicle 

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

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

NAAOS. 

[B]F. CO nonattainment and maintenance areas. In addition to the criteria listed in Table 1 in 

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

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

emissions [~eth&k] tests are satisfied as described in the following. 

(1) FHWA/FTA projects in CO nonattainment or maintenance areas must satisfy the hot spot test 

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

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

20.2.99.135 NMAC. 

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

20.2.99.137 NMAC for conformity determinations made on or after: . . 

I] 

(1 [

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

a submitted control strategy implementation plan revision or maintenance plan is adequate for transportation 

conformitv purposes; 

(b) [

. . . . *

i?E 

publication date of EPA's approval of such a budget in the federal register: or 

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

approval is completed through direct final rulemaking. 

(3) Except as provided in Paragraph (4) of Subsection [B] Fof 20.2.99.128 NMAC, in CO 

nonattainment areas the interim emissions [~edwth] tests must be satisfied as required by 20.2.99.138 NMAC for 

conformity determinations made when there is no approved motor vehicle emissions budget &om an avvlicable 

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

implementation plan revision or maintenance plan. 

I@: ) . . 

. . -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 [&H&HI] tests required by 20.2.99.138 NMAC; or 

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

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

NMAC must be satisfied using the [stt8Rtl#e$] adequate or approved motor vehicle emissions budget(s) (as 

described in Paragraph (2) of Subsection [Dl F of 20.2.99.128 NMAC). 

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

Subsection B of20.2.99.128 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 and/or interim 

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

(1) FHWA/FTA projects in PMlO nonattainment or maintenance areas must satisfy the hot spot test 

required by 20.2.99.135 NMAC. 

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

20.2.99.137 NMAC for conformity determinations made on or after: 

20.2.99 NMAC 
a) [) . . 

-1 the effective date of EPA's finding that a motor vehicle emissions budget in 

a submitted control stratem imvlementation plan revision or maintenance plan is adequate for transportation 

conformitv purvoses; 

(b) 11 . . . . a1 Ik 

publication date of EPA's avproval of such a budget in the federal register; or 

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

approval is completed through direct final rulemaking. 

(3) In PMlO nonattainment areas the interim emissions [14e&k] tests must be satisfied as required 

by 20.2.99.138 NMAC for conformity determinations made: 

a] 

a) [

. . 

if there is no avproved motor vehicle emissions budget fiom an 

apvlicable imvlementation plan and no adeauate motor vehicle emissions budget from a submitted control stratem 

implementation vlan revision or maintenance vlan: or 

@ If VS EPAA- x . . 

. . -1 

[&j](b) if the submitted implementation plan revision is a demonstration of impracticability 

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

[FIE. NO2 nonattainment and maintenance areas. In addition to the criteria listed in Table 1 in 

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

maintenance areas conformity determinations must include a demonstration that the budget andor interim emissions 

[idwtk] tests are satisfied as described in the following. 

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

20.2.99.137 NMAC for conformity determinations made on or after: 

a) [

. . 

[I the effective date of EPA's finding that a motor vehicle emissions budget in 

a submitted control stratern, implementation plan revision or maintenance plan is adeauate for transvortation 

conformity purposes. 

(b) [P . . . . -

publication date of EPA's avvroval of such a budget in the federal register; or 

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

approval is 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 determinations made when there is no avuroved motor vehicle emissions 

budget fiom an apvlicable implementation vlan and no adequate motor vehicle emissions budget fiom a submitted 

control strategy implementation plan revision or maintenance plan.[:] 

1

. . 

. . -1 

I. Ph42.5 nonattainment and maintenance areas. In addition to the criteria listed in Table 1 in 

Subsection B of Section 20.2.99.128 NMAC that are required to be satisfied at all times, in Ph42.5 nonattainment 

and maintenance areas conformitv determinations must include a demonstration that the budget andor interim 

emissions tests are satisfied as described in the following: 

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

implementation plan revision or maintenance vlan is adequate for transportation conformity puruoses; 

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

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

purposes; 

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

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

approval is completed through direct final rulemaking. 

(2) In PM2.5 nonattainment areas the interim emissions tests must be satisfied as reauired by Section 

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

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

strategy implementation plan revision or maintenance plan. 

J. Areas with limited maintenance plans. Notwithstanding the other paraaaphs of this section, an 

area is not required to satisfy the regional emissions analysis for Sections 20.2.99.137 NMAC and/or 20.2.99.138 

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

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

vehicle emissions growth for a NAAOS violations to occur. A conformity determination that meets other auulicable 

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

reauirements for proiects in CO and PMlO areas. 

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

section (20.2.99.128 NMAC), and area is not required to satisfy a re~ional emissions analysis for Sections 

20.2.99.137 NMAC and/or 20.2.99.138 NMAC for a given pollutantlprecursor and NAAQS, if EPA finds through 

the adeauacy or approval process that a SIP demonstrates that regional motor vehicle emissions are an insignificant 

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

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

in that pollutant/precursor for a NAAOS violation to occur. Such a finding would be based on a number of factors, 

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

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

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

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

including regional emissions analyses for Sections 20.2.99.137 NMAC and/or 20.2.99.138 NMAC for other 

pollutants/precursors and NAAQS that 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 projects will 

not create new localized violations and/or increase the severity or 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 determinations for that pollutantlprecursor and NAAQS. 

[GIL. 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) FHWAIFTA projects in all isolated rural 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, FHWAETA projects must also satisfy the requirements of 

Subsection B of20.2.99.135 NMAC ("Localized CO and PMlO violations (hot spots)"). 

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

emissions [mhetkm] tests as described in Subsections C through [F] K 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, FHWAETA projects must be consistent with motor vehicle emissions budget(s) for the years in the 

timefiame of the attainment demonstration or maintenance plan. For years after the attainment year (if a 

maintenance plan has not been submitted) or after the last year of the maintenance plan, FHWAIFTA projects must 

satisfy one of the following requirements: 

20.2.99 NMAC 
(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 [Dl F of 20.2.99.138 NMAC; or 

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

technique used in the attainment demonstration or maintenance plan, the FHWNFTA project, in combination with 

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

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

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

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

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

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

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

process required in Paragraph (6) of Subsection B of 20.2.99.117 NMAC and Paragraph (5) of Subsection C of 

20.2.99.117 NMAC through which the relevant recipients of title 23 U.S.C. or federal transit laws funds, [the 

NMSWI3] NMDOT, the department, or the local air quality agency should reach consensus about the option and 

methodology selected; US EPA and US DOT must be consulted through this process as well; in the event of 

unresolved disputes, conflicts may be escalated to the governor consistent with the procedure in 20.2.99.123 

NMAC, which applies to department comments on a conformity determination. 

[12/14/94; 11/23/98; 20.2.99.128 NMAC - Rn, 20 NMAC 2.99.128 10/31/02; A, 10/15/05] 

20.2.99.129 CRITERIA AND PROCEDURES - LATEST PLANNING ASSUMPTIONS. 

A. Except as provided in this paragraph, [T]fie 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 [&~~MMR] analysis begins. The conformity determination 

must satisfy the requirements of Subsections B through F of 20.2.99.129 NMAC using the plannin~ assumptions 

available at the time the conformity analysis begins as determined through the interagency consultation process 

required Subparagraph (a) of Paragraph (1) of Subsection C of Section 20.2.99.1 16 NMAC. The "time the 

conformity analysis begins" for a transportation plan or TIP determination in the point at which the MPO or the 

other designated agencv begins to model the impact of the proposed transportation plan or TIP on travel andlor 

emissions. New data that becomes available after an analysis begins is required to be used in the conformitv 

determination onlv if a significant delay in the analysis has occurred, as determined throurrh 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 TIP must discuss how transit 

operating policies (including fares and service levels) and assumed transit ridership have changed since the previous 

conformity determination. 

D. The conformity determination must include reasonable assumptions about transit service and 

increases in transit fares and road and bridge tolls over time. 

E. The conformity determination must use the latest existing information regarding the effectiveness 

of the TCMs and other implementation plan measures which have already been implemented. 

F. Key assumptions shall be specified and included in the draft documents and supporting materials 

used for the interagency and public consultation required by 20.2.99.1 16 NMAC through 20.2.99.124 NMAC. 

[12/14/94; 1 1/23/98; 20.2.99.129 NMAC - Rn, 20 NMAC 2.99.129 1013 1/02; A, 1011 5/05] 

20.2.99.135 CRITERIA AND PROCEDURES - LOCALIZED CO AND PMlO VIOLATIONS (HOT 

SPOTS). 

A. This paragraph applies at all times. The FHWMTA 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 nonattainrnent and maintenance areas. This criterion is satisfied if it is demonstrated that during the 

time frame of the transportation plan (or regional emissions analysis) [MI no new local violations will be created 

and the severity or number of existing violations will not be increased as a result of the project. The demonstration 

20.2.99 NMAC 20 
shall be performed according to the consultation requirements of Subsection A of 20.2.99.120 NMAC and the 

methodology requirements of 20.2.99.146 NMAC. 

B. This paragraph applies for CO nonattainment areas as described in Paragraph (1) of Subsection 

[Dl F of 20.2.99.128 NMAC. Each FHWA/FTA project must eliminate or reduce the severity and number of 

localized CO violations in the area substantially affected by the project (in CO nonattainment areas). This criterion 

is satisfied with respect to existing localized CO violations if it is demonstrated that during the time fiame of the 

transportation plan (or regional emissions analysis) existing localized CO violations will be eliminated or reduced in 

severity and number as a result of the project. The demonstration must be performed according to the consultation 

requirements of Subsection A of 20.2.99.120 NMAC and the methodology requirements of 20.2.99.146 NMAC. 

[12/14/94; 11/23/98; 20.2.99.135 NMAC - Rn, 20 NMAC 2.99.135 10/31/02; A, 10/15/05] 

20.2.99.136 CRITERIA AND PROCEDURES - COMPLIANCE WITH PMlO and PM2.5 CONTROL 

MEASURES. The FHWA/FTA project must comply with PMIO and PM2.5 control measures in the applicable 

implementation plan. This criterion is satisfied if the project-level conformity determination contains a written 

commitment fiom the project sponsor to include in the final plans, specifications, and estimates for the project those 

control measures (for the purpose of limiting PMlO and PM2.5 emissions fiom the construction activities andor 

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 1013 1/02; A, 10/15/05] 

20.2.99.137 CRITERIA AND PROCEDURES - MOTOR VEHICLE EMISSIONS BUDGET. 

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

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

implementation plan submission). This criterion applies as described in Subsections C through [GI L of 20.2.99.128 

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

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

established in the applicable implementation plan or implementation plan submission. 

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

which the applicable (andor submitted) implementation plan specifically establishes motor vehicle emissions 

budget(s), for the attainment vear (if it is within the time fiame of the transportation plan) 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 

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

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

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

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

(2) When a maintenance plan has been submitted 

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

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

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

other than the last year of the maintenance plan, the demonstration of consistency with the motor vehicle emissions 

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

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

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

must be considered in order to make such a finding; 

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

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

(c) if an approved andor submitted control strategy implementation plan has established motor 

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

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

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

than or eaual to the motor vehicle emissions budget(s) established for the most recent prior vear. 

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

20.2.99 NMAC 2 1 
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 fiom 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 timefiame 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 [N&%l45] 20.2.99.147 NMAC 

and 20.2.99.120 NMAC. 

(2) The regional emissions analysis may be performed for any years in the timefiame of the 

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 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 performed. 

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, [[ 

. . CI - and the 

adequacy finding is effective. However, motor vehicle emissions budgets in submitted implementation plans do not 

supersede the motor vehicle emissions budgets in approved implementation plans for the same Clean Air Act 

requirement and the period of years addressed by the previously approved implementation plan, unless US EPA 

specifies otherwise in its approval of a SIP. 

(2) If US EPA has notdeclared an implementation plan submission's motor vehicle emissions 

budget(s) [&]adequate for transportation conformity purposes, the [+swkpte] budget(s) shall not be used to satisfy 

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

must be demonstrated. If there are no previously approved implementation plans or implementation plan 

submissions with adequate motor vehicle emissions budgets, 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 emissions budget(s) . . inadequate for transportation conformity purposes [TI 

after US EPA had previouslv found the budaet(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 fiom a conforming transportation plan and TIP. 

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

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

following minimum criteria are satisfied: 

(a) the submitted control strategy implementation plan revision or maintenance plan was 

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

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

(c) the motor vehicle emissions budget(s) is clearly identified and precisely quantified; 

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

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

(whichever is relevant to the given implementation plan submission); 

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

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

plan; and 

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

20.2.99 NMAC 
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 [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 

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 budgeys) used to satisfy the requirements of this section are 

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

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

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

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

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

milestones. 

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

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

implementation plan. 

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

action on the implementation plan: 

Ja) US EPA will notify the public through US EPA's website when US EPA receives an 

implementation plan submission that will be reviewed for adequacy; 

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

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

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

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

[c) after the public comment period closes. US EPA will inform the department in writing 

whether US EPA has found the submission adequate or inadequate for use in transportation conformitv. including 

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

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

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

(20.2.99.137 NMAC); 

1 US EPA will publish a federal register notice to inform the public of US EPA's finding; if 

EPA finds the submission adequate, the effective date of this finding will be fifteen (1 5) days 6om the date the 

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

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

le) US EPA will announce whether the implementation plan submission is adequate or 

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

response to comments of any comments were received during the public comments period; 

0 if after US EPA has found a submission adequate. US EPA has cause to reconsider this 

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

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

public comment given the deficiencies of the implementation plan submission; in all cases where US EPA reverses 

its previous finding to a finding of inadequacy under Paragraph (1) of Subsection F of 20.2.99.137 NMAC. such a 

finding will become effective immediately upon the date of US EPA's letter to the department; 

(g) if after EPA has found a submission inadequate, US EPA has cause to reconsider the 

adequacy of that budget, US EPA will repeat actions described in Subparagraphs (a) through (e) of Paragraph (1) of 

this section (20.2.99.137 NMAC). 

(2) When US EPA reviews the adequacy of an implementation plan submission simultaneously with 

US EPA's approval or disapproval of the implementation plan: 

la) US EPA's federal register notice of proposed or direct final rulemaking will serve to notify 

the public that US EPA will be reviewing the implementation plan submission for adequacy; 

Jb) the publication of the notice of proposed 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 and thus can 

be used for conformity either in US EPA's final rulemakine; or through the process described in Subparagraphs (c) 

20.2.99 NMAC 23 
through (e) of Paragraph (1) of Subsection F of this section (20.2.99.137 NMAC); if US EPA makes an adequacy 

finding throuh 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 register. or upon the effective date of US 

EPA's approval if such action is conducted through direct final rulemaking: US EPA will respond to comments 

received directlv and review comments submitted through the department process and include the response to 

comments in the applicable docket. 

[12/14/94; 11/23/98; 20.2.99.137 NMAC - Rn, 20 NMAC 2.99.137 10/31/02; A, 1011 5/05] 

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 emissions test(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 (transportation plan, TIP, or project not fiom a conforming transportation plan 

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) apply to 

all 1-hour ozone and 8-hour ozone NAAOS areas, except for certain requirements as indicated. This criterion may 

be met. 

(1) [illn moderate and above ozone nonattainment areas that are subject to the reasonable further 

-1 

progress requirements of CAA Section 

if a regional emissions analysis that satisfies 

182(b)(l) [

the requirements of 20.2.99.141 

NMAC through [%.2.??.W] 20.2.99.147 NMAC and Subsections [GI G through [R] Ti of 20.2.99.138 NMAC 

demonstrates that for each analysis year and for each of the pollutants described in Subsection [Dl E of 20.2.99.138 

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 to be true in the periods between the 

analysis years; and 

[@](bJ the emissions predicted in the "action" scenario are lower than 1990 emissions by 

any nonzero amount. in areas for the 1-hour ozone NAAOS 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 

Subsections D and E of 20.2.99.128 NMAC. 

J2) In marginal and below ozone nonattainment areas and other ozone nonattainment areas that are 

not subiect to the reasonable further progress requirements of the Clean Air Act Section 182(b)(l) if a regional 

emissions analysis that satisfies the requirements of Section 20.2.99.141 NMAC through 20.2.99.147 NMAC and 

Subsection G through J of 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 expected to be true in the periods between the analvsis vears; 

- or 

Jb) the emissions predicted in the "action" scenario are not greater than the 1990 emissions, in 

areas for the 1-hour NAAOS 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 NMAC. 

C. CO areas. This criterion may be met: 

J1) in moderate areas with desim values neater than 12.7 ppm and serious CO nonattainment areas 

that are subject to Clean Air Act Section 187(a)(7) if a 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 

demonstrates that for each analvsis year and for each of the pollutants described in Subsection F of 20.2.99.138 

NMAC: 

[a) the emissions predicted in the "action" scenario are less than the emissions predicted in the 

"baseline" scenario. and this can be reasonably expected to be true in the periods between the analysis years: and 

Jb) the emissions predicted in the "action" scenario are lower than 1990 emissions by any 

nonzero amount. 

(2) in moderate areas with design values less than 12.7 ppm and not classified CO nonattainment 

areas if a regional emissions analysis that satisfies the requirements of Sections 20.2.99.141 NMAC through 

20.2.99.147 NMAC and Subsections G through J of 20.2.99.138 NMAC demonstrates that for each analysis vear 

and for each of the pollutants described in Subsection F of 20.2.99.138 NMAC: 

20.2.99 NMAC 
[a) the emissions predicted in the "action" scenario are not greater than the emissions predicted 

in the "baseline" scenario. and this can be reasonably expected to be true in the periods between the analysis vears; 

- or 

[b) the emissions predicted in the "action" scenario are not greater than 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 demonstrates that for each analysis year and for each of the pollutants described in Subsection [B] F of 

20.2.99.138 NMAC, one of the following requirements is met: 

(1) the emissions predicted in the "action" scenario are [less] 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 5 1.390 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 maybe met in PM2.5 nonattainment areas if a regional emissions 

analysis that satisfies the requirements of Sections 20.2.99.141 NMAC through 20.2.99.147 NMAC and Subsections 

G through J of 20.2.99.138 NMAC demonstrates that for each analvsis vear and for each of the pollutants described 

in Subsection F of 20.2.99.138 NMAC, one of the following requirements is met: 

(1) the emissions predicated in the "action" scenario are not meater than the emissions predicted in 

the "baseline" scenario, and this can be reasonably expected to be true in the periods between the analysis vears; or 

(2) the emissions predicted in the "action" scenario are not greater that 2002 emissions. 

[B]F. Pollutants. The regional emissions analysis must be performed for the following pollutants: 

(1) VOC in ozone areas; 

(2) NOx in ozone areas, unless the US EPA administrator determines that additional reductions of 

NOx would not contribute to attainment; 

(3) CO in CO areas; 

(4) PMlOinPMlOareas; 

(5) [[mc 

andlor NOx in PMlO areas if the US EPA regional administrator or the department has made a finding that such 

precursor emissions fiom within the area are a significant contributor to 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) reentrained road dust in PM2.5 areas only if the US EPA regional administrator or the department 

has made a finding that emissions fi-om 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. 

[BIG. Analysis years[+] . The regional emissions analysis must 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 

conformity determination is 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 Section 20.2.99.138 

Nh4AC. Subparagraph (a) of Paragraph (2) of Subsection C of Section 20.2.99.1 38 NMAC. Paragraph (1) of 

Subsection D of Section 20.2.99.138 NMAC. and Paragraph (1) of Subsection E of Section 20.2.99.138 NMAC, a 

regional emissions analysis that satisfies the requirements of Sections 20.2.99.14 1 NMAC 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 

transportation proiects and planning assumptions in the "action" and "baseline" scenarios are exactly the same. In 

such a case, Subsection A of Section 20.2.99.138 NMAC can be satisfied by documenting that the transportation 

proiects and planning assumptions in both scenarios are exactly the same. and consequently. the emissions predicted 

in the "action" scenario are not meater than the emissions predicted in the "baseline" scenario for such analysis 

years. 

20.2.99 NMAC 
[FIB. "Baseline" 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 6om 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 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 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 construction or are undergoing right-of-way acquisition (except for hardship acquisition and protective 

buying); come from the first year of the previously conforming transportation plan and/or TIP; or have completed 

the NEPA process. 

[GI). "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 6om 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 6om the implementation of the proposed action (transportation plan, TIP, or project not 

6om 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 6om 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 at a future time unless the regulation is 

already adopted by the enforcing jurisdiction or the TCM is identified in the applicable implementation plan; 

(3) all travel demand management programs and transportation system management activities known 

to the MPO, but not included in the applicable implementation plan or utilizing any federal funding or approval, 

which have been fully adopted and/or funded by the enforcing jurisdiction or sponsoring agency since the last 

conformity determination; 

(4) the incremental effects of any travel demand management programs and transportation system 

management activities known to the MPO, but not included in the applicable implementation plan or utilizing any 

federal funding or approval, which were adopted 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 6om 

a conforming transportation plan and TIP; and 

(6) completion of all expected regionally significant non-FHWAFTA highway and transit projects 

that have clear funding sources and commitments leading toward their implementation and completion by the 

analysis year. 

[HIJ. Projects not 6om 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 6om a conforming 

transportation plan and TIP is a modification of a project currently in the plan or TIP, the "baseline" scenario must 

include the project with its original design concept and scope, and the "action" scenario must include the project 

with its new design concept and scope. 

[12/14/94; 11/23/98; 20.2.99.138 NMAC - Rn, 20 NMAC 2.99.138 1013 1/02; A, 1011 5/05] 

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 to this submission 

is determined. 

(2) If US EPA disapproves a submitted control strategy implementation plan revision without making . . a protective finding, [m] only projects in the first 

threea years of the currently conforming transportation plan and TIP may be found to conform. This means that 

20.2.99 NMAC 
beginning [m] on the effective date of a 

disapproval without a protective finding, no transportation plan, TIP, or project not in the first threel2lyears of the 

currently conforming plan and TIP may be found to conform until another control strategy implementation .. . plan 

revision fulfilling the same Cb Ak Act requirements is submitted [E 

-1, .. . US EPA fmds its motor vehicle emissions 

budget(s) adequate pursuant to Section 20.2.99.137 NMAC or approves the submission. and conformitv to the 

implementation plan revision is determined. 

(3) In disapproving a control strategy implementation plan revision, US EPA would give a protective 

finding where a submitted plan contains adopted control measures or written commitments to adopt enforceable 

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

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

B. Failure to submit and incompleteness. In areas where US EPA notifies the department, MPO, and 

US DOT of the department's failure to submit a control strategy implementation plan or submission of an 

incomplete control strategy implementation plan revision (either of which initiates the sanction process under CAA 

Sections 179 or 110(m)), the conformity status of the transportation plan and TIP shall lapse on the date that 

highway sanctions are imposed on the nonattainment area for such failure under Section 179(b)(l) of the CAA, 

unless the failure has been remedied and acknowledged by a letter kom the US EPA regional administrator. 

C. Federal implementation plans. If US EPA promulgates a federal implementation plan that 

contains motor vehicle emissions budget(s) as a result of a department failure, the conformity lapse imposed by 

20.2.99.139 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 1013 1/02; 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 Nh4AC, no recipient of federal funds 

designated under title 23 U.S.C. or the federal transit laws shall adopt or approve a regionally significant highway or 

transit project, regardless of funding source, unless the recipient fmds that the requirements of one of the following 

are met: 

(1) the project [

comes kom the currently ..' . . . conforming transportation plan and TIP[[ 

[I and the project's design concept and scope [kits] have not changed 

significantly kom those analyses for that transportation plan and TIP; or 

2 the proiect is included in the regional emissions analvsis for the currently conforming 

transportation plan and TIP conformity determination (even if the proiect is not strictly included in the transportation 

plan or TIP for the purpose of MPO proiect selection or endorsement) and the project's design concept and scope 

have not changed significantly form those which were included in the regional emissions analvsis; or 

[(2j](3J [m] a new regional emissions 

analysis including the project and the currently conforming transportation plan and TIP demonstrates that the 

transportation plan and TIP would still conform if the project were implemented (consistent with the requirements of 

20.2.99.137 NMAC and/or 20.2.99.138 Nh4AC 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 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 transportation plan and TIP which are in the 

nonattainment or maintenance area, and the project's design concept and scope has not changed significantly; or 

(2) a new regional emissions analysis including the project and all other regionally significant 

projects expected in the nonattainment or maintenance area demonstrates that those projects in the statewide 

transportation plan and statewide TIP which are in the nonattainment or maintenance area would still conform if the 

project were implemented (consistent with the requirements of 20.2.99.137 NMAC and/or 20.2.99.138 Nh4AC for 

projects not kom a conforming transportation plan and TIP). 

20.2.99 NMAC 
C. Notwithstanding Subsections A and 33 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 U.S.C. or the federal transit laws shall adopt or 

approve a regionally significant highway or transit proiect. regardless of funding source. Unless the reci~ient finds 

that the requirements of one of the following are met for that pollutant/vrecursor and NAAOS: 

(1) the proiect was included in the most recent conformity determination for the transportation plan 

and TIP and the vroiect's design concept and scope has not changed significantly: or 

(2) the proiect as included in the most recent conformity determination that reflects the portions of 

the statewide transportation plan and statewide TIP which are in the nonattainment or maintenance area, and the 

proiect's design concept and scope has not changed significantlv. 

[12/14/94; 11/23/98; 20.2.99.140 NMAC - Rn, 20 NMAC 2.99.140 1013 1/02; A, 1011 5/05] 

20.2.99.143 PROCEDURES FOR DETERMINING REGIONAL TRANSPORTION- RELATED 

POLLUTION EMISSIONS - TWO-YEAR GRACE PERIOD FOR REGIONAL EMISSIONS ANALYSIS 

REOUIREMENTS IN CERTAIN OZONE AND CO AREAS. The requirements of 20.2.99.142 NMAC apvly in 

such areas or portions of such areas that have not previously been required to meet these requirements for any 

existing NAAOS two years £rom the following: 

A. the effective date of US EPA's reclassification of an 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 census bureau that determines the urbanized area povulation of a serious 

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

C. the effective date of US EPA's action that classifies a newly designated ozone or CO 

nonattainment area that has an urbanized area population greater than 200.000 as serious or above. 

[12/14/94; 11/23/98; 20.2.99.143 NMAC - Rn, 20 NMAC 2.99.143, 1013 1/02; 20.2.99.143 NMAC - 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 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, 1013 1/02; 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 fugitive PMlO 

as a contributor to the nonattainment problem, the fugitive PMlO emissions associated with highway and transit 

project construction are not required to be considered in the regional emissions analysis. 

B. In PMlO nonattainment and maintenance areas with implementation plans which identify 

construction-related fugitive PMlO as a contributor to the nonattainment problem, the regional PMlO emissions 

analysis shall consider construction-related fugitive PM10 and shall account for the level of construction activity, 

the fugitive PMlO control measures in the SIP, and the dust-producing capacity of the proposed activities. 

[12/14/94; 1 1/23/98; 20.2.99.145 NMAC - Rn, 20 NMAC 2.99.145, 1013 1/02; 20.2.99.145 NMAC - 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 identifv construction-related fugitive 

PM2.5 as a significant contributor to the nonattainment problem. the fugitive PM2.5 emissions associated with 

highway and transit proiect construction are not required to be considered on the regional emissions analysis. 

B. In PM2.5 nonattainment and maintenance areas with implementation plans which identifv 

construction-related fugitive PM2.5 as a significant contributor to the nonattainment problem. the regional PM2.5 

20.2.99 NMAC 28 
emissions analysis shall consider construction-related fugitive PM2.5 and shall account for the level of construction 

activity, the fugitive PM2.5 control measures in the applicable implementation plan, and the dust-vroducine capacity 

of the 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 PROCEDURES FOR DETERMINING REGIONAL TRANSPORTATIONRELATED POLLUTANT EMISSIONS -- RELIANCE ON PREVIOUS REGIONAL EMISSIONS 

ANALYSIS. 

A. [a] Conformi@ determinations for a new transportation plan and/or TIP may be demonstrated to 

satisfy the requirements of Section 20.2.99.137 NMAC ("Motor vehicle emissions budget") or Section 20.2.99.138 

NMAC ("Emission reductions in areas without motor vehicle emissions budgets") without new regional emissions 

analysis if the regional emissions analysis [w] if the previous regional emissions 

analysis also applies to the new vlan andlor TIP. This requires a demonstration that: 

(1) the new plan and/or TIP contains all projects which must be started in the plan and TIP'S 

timeframe3 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 [previous conformity determination; and 

(3) the design concept and scope of each regionally significant project in the new vlan andfor TIP [is] 

- are not 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 conformity to 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 conforming TIP may be 

demonstrated to satisfy the requirements of 20.2.99.137 NMAC or 20.02.99.138 NMAC without additional regional 

emissions analysis if allocating funds to the project will not delay the implementation of projects in the 

transportation plan or TIP which are necessary to achieve the highway and transit system envisioned by the 

transportation plan, the previous regional emissions analysis is still consistent with the requirements of Section 

20.2.99.137NMAC (including that conformity to all currently applicable budgets is demonstrated) andfor 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 &om that described in the transportation plan. 

C. A conformity determination that relies on this section (20.2.99.147 NMAC) does not satisfy the 

ffequency requirements of Sections 20.2.99.112 NMAC and 20.2.99.1 13 NMAC. 

[12/14194; 1 1/23/98; 20.2.99.147 NMAC - Rn, 20 NMAC 2.99.147, 1013 1/02; 20.2.99.147 NMAC - Rn, 

20.2.99.145 NMAC & A, 10/15/05] 

[24&W&%] 20.2.99.148 PROCEDURES 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 5 1 appendix W 

("Guideline on Air Quality Models"). These procedures shall be used in the following cases, unless, different 

procedures developed through the interagency consultation process required in 20.2.99.1 16 NMAC through 

20.2.99.124 NMAC and approved by the EPA region 6 administrator are used: 

(a) for projects in or affecting locations, areas, or categories of sites which are identified in the 

SIP as sites of violation or possible violation; 

(b) for projects affecting intersections that are at level-of-service D, E, or F, or those that will 

change to level-of-service D, E, or F because of increased traffic volumes related to the project; 

(c) for any project affecting one or more of the intersections which the SIP identifies as the top 

three intersections in the nonattainment or maintenance area based on the highest traffic volumes; and 

(d) for any project affecting one or more of the intersections which the SIP identifies as the top 

three intersections in the nonattainment or maintenance area based on the worst level of service. 

20.2.99 NMAC 
(2) In cases other than those described in Paragraph (1) 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 sites at which violations have 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 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 are not 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 20.2.99.1 16 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 until EPA releases modeling guidance on this subject and announces in the federal register that these 

requirements are in effect. 

C. General Requirements. 

(1) Estimated pollutant concentrations shall be based on the total emissions burden which may result 

fiom the implementation of the project, summed together with future background concentrations. The total 

concentration shall be estimated and analyzed at appropriate receptor locations in the area substantially affected by 

the project. 

(2) Hot-spot analyses shall include the entire project, and may be performed only after the major 

design features which will significantly impact concentrations have been identified. The future background 

concentration should be estimated by multiplying current background by the ratio of future to current traffic and the 

ratio of future to current emission factors. 

(3) Hot-spot analysis assumptions shall be consistent with those in the regional emissions analysis for 

those inputs which are required for both analyses. 

(4) PMlO or CO mitigation or 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 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. Temporary increases are defined as those which 

occur only during the construction phase and last five years or less at any individual site. 

[12/14/94; 11/23/98; 20.2.99.148 NMAC - Rn, 20 NMAC 2.99.148, 1013 1/02; 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 implementation plan explicitly quantifies the amount by which motor vehicle emissions could be higher while 

still allowing a demonstration of compliance with the milestone, attainment, or maintenance requirement and 

explicitly states an intent that some or all of this additional amount should be available to the MPO (or [the 

l4MSKB] NMDOT in the absence of an MPO), and the US DOT, in the emission budget for conformity purposes, 

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 

20.2.99 NMAC 
submissions) which demonstrate that after implementation of control measures in the implementation plan: 

(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 sources will result in achieving attainment prior to the attainment 

deadline, and/or 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. 

. . il 

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. 

[BIG. If the applicable SIP (or implementation plan submission) estimates future emissions by 

geographic subarea of 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 subarea budgets, unless the SIP (or implementation 

plan submission) explicitly indicates an intent to create such subarea budgets for the purposes of conformity. 

[BID. 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; 1 1/23/98; 20.2.99.149 NMAC - Rn, 20 NMAC 2.99.149, 1013 1/02; 20.2.99.149 NMAC - Rn, 

20.2.99.147 NMAC & A, 1011 5/05] 

[2MA%l4] 20.2.99.150 ENFORCEABILITY OF DESIGN 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 

sponsor andlor operator written commitments to implement in the construction of the project and operation of the 

resulting facility or service any project-level mitigation or control measures which are identified as conditions for 

NEPA process completion with respect to local 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 to facilitate positive conformity 

determinations shall provide written contractual commitments and must comply with the obligations of such 

commitments. 

C. Written contractual commitments to mitigation or control measures shall be obtained prior to a 

positive conformity determination, and project sponsors must comply with such commitments. 

D. If the 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 20.2.99.1 35 NMAC, emission 

budget requirements of 20.2.99.137 NMAC, and [-I interim emissions requirements of 

20.2.99.138 NMAC are satisfied without the mitigation or control measure, and so notifies the agencies involved in 

the interagency consultation process required under 20.2.99.116 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 transportation plan and TIP 

still satisfy the applicable requirements of 20.2.99.137 NMAC and 20.2.99.138 NMAC and that the project still 

satisfies the requirements of 20.2.99.135 NMAC and therefore that the conformity determinations for the 

transportation plan, 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, 1011 5/05] 

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 

of the types listed in Table 2 of this section are exempt from the requirement to determine conformity. Such projects 

may proceed toward implementation even in the absence of a conforming transportation plan and TIP. A particular 

action of the type listed in Table 2 (of this section) is not exempt if the 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. [-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 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) railroadhighway crossing warning 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 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-ofway; 

(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 storagelmaintenance 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; 

20.2.99 NMAC 
(ii) grants for training 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 [XI 710 [204@] 503); 

(e) acquisition of scenic easements; 

(0 platings, landscaping, etc.; 

(g) sign removal; 

(h) directional and informational signs; 

(i) transportation enhancement activities (except rehabilitation and operation of historic 

transportation buildings, structures, or facilities); 

(j) repair of damage caused by 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 of the types listed in Table 3 of this section are exempt fiom 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 to making a project-level conformity determination. 

These projects may then proceed to the project development process even in the absence of a conforming 

transportation plan and TIP. A particular action of the type listed in Table 3 (of this section) is not exempt 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) 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. 

[12114194; 11/23/98; 20.2.99.151 NMAC - Rn, 20 NMAC 2.99.151, 1013 1/02; 20.2.99.151 NMAC - Rn, 

20.2.99.149 NMAC & A, 1011 5/05] 

[aeiai99,M8] 20.2.99.152 TRAFFIC SIGNAL SYNCHRONIZATION PROJECTS. Traffic signal 

synchronization projects may be approved, funded, and implemented without satisfying the requirements of this 

part. However, all subsequent regional emissions analyses required by 20.2.99.137 NMAC and 20.2.99.138 NMAC 

for transportation plans, TIPS, or projects not fiom 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, 10115/05] 

20.2.99.153 SPECIAL EXEMPTIONS 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 if these areas are selected to participate in a conformitv pilot Program and have 

developed alternative requirements that have been a~proved by EPA as an implementation plan revision in 

accordance with 40 CFR part 5 1.390. For the duration of the pilot program, areas selected to participate in the pilot 

program must comply with the conformity requirements of the pilot area's implementation plan revision for 65 1.390 

of this chapter and all other requirements in 40 CFR parts 5 1 and 93 that are not covered by the pilot area's 

implementation plan revision for 40 CFR part 5 1.390. The alternative conformitv requirements in coniunction with 

any applicable state and/or federal conformitv requirements must be proposed to fulfill all of the requirements of and 

achieve results equivalent to or better than Section 176(c) of the Clean Air Act. After the three-year duration of the 

pilot program has expired, areas will again be subiect to all of the requirements of this subpart and 40 CFR part 5 1. 

subpart T, and/or to the requirements of any implementation plan revision that was previously approved by EPA in 

accordance with 40 CFR part 5 1.390. 

[20.2.99.153 NMAC - N, 10/15/05] 

20.2.99 NMAC 
[2O&W&%] 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 thereofl the approved (or 

approved portion of the) department's criteria and procedures would govern conformity determinations and the 

federal conformity regulations contained in 40 CFR part 93 would apply only for the portion, if any, of the 

department's conformity provisions that is not approved by EPA. In addition, any previously applicable SIP 

requirements relating to conformity remain enforceable until the department revises its SIP to specifically remove 

them and that revision is approved by EPA. 

[20.2.99.154 NMAC - Rn, 20.2.99.15 1 NMAC, 10/15/05] 

20.2.99 NMAC 
BILL RICHARDSON 

Governor 

State of New 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: Sandra Ely, 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 following items on the EIB April 5,2005 

meeting agenda: 

The New 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 

ENVIRONMENTAL IMPROVEMENT 

PETITION FOR HEARJXG ON PROPOSED AMEhJDMENTS 

TO 20.2.99 NMAC CONFORMITY TO THE STATE IMPLEMENTATION 

PLAN OF TRANSPORTATION PLANS, PROGRAMS, Ah?D PROJECTS EIB 05-03C?J 

NEW MEXICO ENVIRONMENT DEPARTMENT'S 

NOTICE OF INTENT TO PRESENT TECHNICAL TESTIMONY 

The Environmental Protection Division of the New Mexico Environment Department 

(Division) submits this Notice of Intent to Present Technical Testimony in support of the abovereferenced petition at the public hearing on July 5, 2005. 

1. The person for whom the witnesses will testify. 

The Division. 

2. The name and qualifications of each techcal witness. 

Gad Cooke. Ms. Cooke has been an Environmental Analyst for the Control Strategy 

Section of the Division's Air Quality Bureau for six years. Before joining the Bureau, Ms. 

Cooke was employed as an environmental planner for an environmental consulting firm in 

Albuquerque. She holds a Bachelor Degree in Environmental Design fiom Texas A&M 

University and a Master Degree in Urban and Regional Planning, with an emphasis in 

Environmental Planning from Virginia Polytechnic Institute and State University. Ms. Cooke has 

extensive experience in the development of State Implementation Plans, regulatory development, 

and issues related to the status of nonattainment for areas that have exceeded the National 

Ambient Air Quality Standards. 

NOTICE OF INTENT-PAGE 1 of 3 
3. Whether the Division supvorts or opposes the proposed revisions. 

The Division supports the proposed revisions. 

4. Summary of testimony. 

Ms. Cooke will offer testimony explaining the importance of the proposed 

CONFORMITY TO THE STATE IMPLEMENTATION PLAN OF TRANSPORTATION 

PLANS, PROGRAMS, AND PROJECTS regulation attached as Exhibit 2. The Division 

estimates that Ms. Cooke's testimony will take one hour. 

5. A list and description of anticipated exhibits. 

EXHIBIT NUMBER TITLE OF EXHIBIT 

NMED Exhibit 1 

NMED Exhibit 2 

NMED Ehbit 3 

NMED Exhibit 4 

WED Exhibit 5 

NMED Exhibit 6 

Resume of Gail Cooke 

Summary of Technical Testimony of Gail Cooke 

Proposed rule changes for 20.2.99 NMAC 

Summary of 40 CFR Part 93 for 8-6-02 

Summary of 40 CFR Part 93 for 7-1-04 

Notice of Public Meeting and Hearing 

6. Reservation of Rights. 

This Notice of Intent to Present Technical Testimony is based on the Division's petition. 

The Division reserves the right to call any person to testify and to present any exhibit in response 

to another notice of intent or public comment filed in this matter or to any testimony or exhibit 

offered at the public hearing. The Division also reserves the right to call any person as a rebuttal 

witness and to present any exhibit in support thereof. 

Respectfully submitted, 

NOTICE OF INTENT - PAGE 2 of 3' 
Office of General Counsel 

New Mexico Environment Department 

1 190 South St. Francis Drive 

Santa Fe, New Mexico 87502-61 10 

Telephone (505) 827-2054 

Facsimile (505) 827-1 628 

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 and State University (WI&SU), Blacksburg, Virginia, 1998 

Major Project: The Implementation of Virginia Erosion And Sediment Control Laws and Regulations. 

Bachelor of Environmental Design, Texas A&M University, College Station, Texas, 1995 

Other areas of study include Environmental Science, Soil Science, and Civil Engineering. 

State of New Mexico Environment Department, Air Quality Bureau 1999-Present 

Environmental AnalystPlanner - Public outreach, including preparing outreach material for the general 

public; preparation of emission inventory updates and maintenance plans 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 County NonattainmenrYRedesignation 

Acted as the lead in the redesignation of the Grant County Sulfur Dioxide Nonattainment area. At the 

request of the Environmental Protection Agency, an analysis was conducted to redesignate the Air 

Quality Control Region 0 12: Grant County, New Mexico SO2 nonattainment area to 

attainmentlmaintenance status and a maintenance plan was prepared. In February of 2003, a 

redesignation request and maintenance plan for the Grant County nonattainment area were submitted 

to EPA for their review and approval. Both the redesignation request and maintenance plan for the 

Grant County nonattainment area were approved in September of 2003. 

Sunland Park NonattainmenrYRedesignation 

Currently acting as the lead for the activities related to the Sunland Park Ozone nonattainment area. In 

1995, the Environmental Protection Agency declared a 42 square-mile region in the southeast comer of 

Doiia Ana County on the border of Texas and Mexico as a marginal nonattainment area for the 1 -hour 

ozone standard. The nonattainment area includes the City of Sunland Park, Santa Teresa, and La 

Union, New Mexico. The Air Quality Bureau is currently in the process of conducting an analysis to 

redesignate Air Quality Control Region 153: Sunland Park, New Mexico Ozone nonattainment area to 

attainment/maintenance status. Responsibilities include development of emission inventories; plan 

development; and act as air quality contract for transportation conformity related issues. 
NMED Efibit 2 

SUMMARY OF TECHINICAL TESTIMONY 

OF GAIL COOKE, 

AIR QUALITY BUREAU, NEW MEXICO ENVIRONMENT DEPARTMENT 

I. INTRODUCTION 

Madame Chair and Members of the Board, I am here to present the Division's proposed 

amendments to 20.2.99 NMAC - Conformity to the State Implementation Plan of Transportation 

Plans, Programs, and Projects. NMED Exhibit 3 reflects the Divisions proposed amendments in 

current NMAC format. The proposed amendments are shown in standard legislative format: 

new material is underlined, and deleted material stricken or designated as stricken. During my 

testimony, I will refer to this regulation as Part 99. 

The proposed revisions to Part 99 are in response to mandatory amendments to the 

federal rule 40 CFR Part 93 -Determining Confor-mity of Federal Actions to State or Federal 

Implemerztation Plans, 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 - 

reasonable notice and public hearings, adopt and submit to EPA a revised or new plan within 

thee (3) years after the promulgation 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. The EPA has requested that the proposed revisions to Part 99 be 

adopted by September 30,2005. 

The first of these amendments to the federal Transportation Conformity Rule was 

published in the Federal Register on August 6,2002 (67 FR 50808)(Exhibit 4). These changes 

include minor revisions to the 18-month requirement for initial State Implementation Plan 

submissions and the addition of a grace period for newly designated nonattainment areas. The 

second phase of the amendments made to the Federal Transportation Conformity Rule was 

published in the Federal Register on July 1,2004 (68 FR 40003) (Exhibit 5). The changes to the 

federal rule include amendments for the new 8-hour ozone and Particulate Matter 2.5 microns in 

size NAAQS 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 meeting the air quality standards. Conformity requirements were made 

substantially more rigorous in the Clean Air Act Amendments of 1990, and the federal 

transportation conformity regulation (Part 93) that details implementation of the new 

requirements was issued in November 1993. Along with the adoption of Part 93, the individual 

COOKE TESTIMOhrY - PAGE 1 
NNIED Exhibit 2 

states were also required to develop a regulation to implement transportation conformity. Part 99 

was adopted in December 1994. The purposes of the federal and state regulations were to detail 

the process for transportation agencies to demonstrate and ensure emission reductions from 

transportation sources of air pollution. 

Transportation conformity only applies to areas that have violated the NAAQS, or what is 

called "nonattainmentyy for the six criteria pollutants: carbon monoxide, sulfur dioxide, oxides of 

nitrogen, particulate matter, ozone, and lead. To ensures that transportation activities do not 

worsen air quality in nonattainment areas or interfere with State Lmplementation Plans, which set 

the requirements for meeting the U.S. Environmental Protection Agency (EPA) standards for air 

quality, transportation emission reductions area often required from mobile sources. 

According to the CAA, transportation plans, programs, and projects cannot: 

create new violations of the NAAQS; 

increase the frequency or severity of existing violations of the standards; or 

delay attainment of the standards. 

LII. PROPOSED CHANGES TO PART 99 

A. August 6,2002 Amendments 

1. Introduction 

The August 6,2002 amendments to the federal transportation conformity rule was to 

respond, in part, to the impact of a decision made on March 2, 1999, by the U.S. Court of 

Appeals for the District of Columbia Circuit that affected several provisions of the 1997 

rulemaking (Environmental Defense Fund v. EPA, et al., 167 F. 3d 64 1, D.C. Cir. 1999). 

Specifically, the amendments address the indirect impact of this court decision on one provision 

of the conformity rule (Sec. 93.104(e)), the provision that requires conformity to be redetermined 

within 18 months of an initial state implementation plan submission. The amendments also 

incorporate a one-year grace period for newly designated nonattainment areas. 

2. Redetermination Within 18 Months 

The federally mandated amendment changes the starting point of the requirement to 

determine conformity after an initial state implementation plan submission to the EPA. This 

amendment revises Part 99, Section 1 15--Frequency ofConformity Determinations - Triggers 

for Transportation Plan and TIP Conformity Determinations. With this amended language, 

conformity must be determined within 18 months of the effective date of the Federal Register 

notice announcing the EPAYs finding that the emission 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 for an initial state 

implementation plan. 

COOKE TESTIMONY - PAGE 2 
NMED Exhibit 2 

The effect of this revision is that areas will have the full 18 months to satisfy the 

conformity requirement for initial submissions once adequate emission budgets have become 

available for conformity. The EPA promulgated this minor rule revision to provide a reasonable 

response to an indirect impact of the March 2, 1999, court decision that requires the EPA to first 

find the budgets from an initial state implementation plan submission adequate before such 

budgets can be used in a transportation conformity determination. 

This revision also changed the starting point for the1 8-month clocks that are currently 

running for areas with initial state implementation plan submissions, so that these areas are given 

the full 18 months to determine conformity to their initial state implementation plans. In other 

words, in areas where a state implementation plan has been submitted and EPA is currently 

reviewing it for adequacy, the 18-month clock required by Sec. 115 will not start until the 

effective date of the EPA's adequacy finding. If the EPA is currently reviewing the adequacy of 

a submitted state implementation plan, and subsequently find 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 of the EPA's positive adequacy finding. 

3. One-Year Grace Period 

The federally mandated amendment to 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. Ths revision is needed to make transportation conformity rules 

consistent with an October 27,2000, amendment to 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 grace period before the 

conformity regulation applies with respect to that standard. This grace period be,oins upon the 

effective date of the EPA's published notice in the Federal Register that designates an area as 

nonattainment. 

B. July 1,2004 Amendments 

The Division is proposing multiple amendments to Part 99 in response to federally 

mandated revisions to the federal transportation rule (Part 93). The main purpose of these 

revisions is to incorporate clear guidance and procedures for implementing conformity for the 

new ozone and PM2.5 NAAQSs. 

1. Introduction 

COOKE TESTIMONY - PAGE 3 
NED Exhibit 2 

The EPA revised the federal transportation conformity rule (Part 93) in response to two 

proposals that were published a year and half ago. On November 5,2003, EPA published a 

proposal to address conformity requirements under the new ozone and PM2.5 air quality standards 

(68 FR 62690). On June 30,2003, EPA proposed to incorporate existing federal guidance into 

the conformity rule consistent with a March 2, 1999, U.S. Circuit Court of Appeals decision (68 

FR3 8974). EPA combined both of these rulemaking efforts into one final rule to provide a 

complete package to all existing and new nonattainment and maintenance areas. 

The frnal federal transportation conformity rule (Part 93) describes when conformity first 

applies in new ozone and PMz.5 nonattainment areas. The Clean Air Act and transportation 

conformity rule allow a one-year grace period before conformity applies for the new standards, 

and this grace period begins upon the effective date of EPA's nonattainment designation for 

either new standard. 

The federal rule also incorporates existing EPA and Department of Transportation (DOT) 

guidance for a March 2, 1999, decision from the U.S. Court of Appeals for the District of 

Columbia Circuit. In Environmental Defense Fund v. EPA, et al., 167 F. 3d 641, D.C. Cir. 1999, 

the U.S. Court of Appeals ruled against EPA on several provisions of the transportation 

conformity regulations. Some of the significant rule revision resulting from the court decision 

include the procedures for advancing highway and transit projects during a conformity lapse and 

administrative process for determining whether the motor vehicle emissions budgets in SIP 

submissions are appropriate to use in conformity determinations. The EPA also made several 

other changes to clarify the conformity regulations and improve implementation. 

2. Proposed Amendments to 20.2.99 NMAC 

The following table 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 grace period is provided by 

Clean Air Act section 176(c)(6) and Sec. 

93.102(d) of the conformity regulation. 

Baseline Year Test - Adds the following 

tests to the conformity rule for 8-hour 

ozone nonattainment areas: 

The "less-than-2002 emissions" test, 

and 

The "no-greater-than-2002 

emissions" test. Under these interim 

emissions tests, conformity would be 

demonstrated if the emissions from 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 federal rule is 

amended to create the "build-no-greaterthan-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-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 1 of part D 

of title 1 of the Clean Air Act ("subpart 

1 areas"). 

SECTION 

Regional Conformity Tests Moderate 

and Above Classifications (Higher 

Classifications) - Ozone areas of higher 

nonattainment classifications must meet 

both the build-less-than-no-build and 

less-than-baseline year tests to 

demonstrate conformity in the period 

before SIP budgets are available. This 

provision will affect moderate and above 

I-hour and 8-hour ozone areas. This 

requirement is identical to the 

requirement of the existing conformity 

rule for these areas, and was the first of 

three options proposed for regional 

emissions analyses before adequate or 

approved SIP budgets 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 

designated nonattainment under the 1 - hour ozone standard or were I-hour 

ozone nonattainment areas that never 

submitted a control strategy SIP or 

maintenance plan with approved or 

adequate budgets. A regional emissions 

analysis is the part of a coaformity 

PART 93 

FEDER4L 

REGULATORY 

Sec. 119@)(2); 

Sec. 1 1 9(g)(2) 

Sec. 1 19@)(1) 

Sec. 109(d) 

Sec. 13 8(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 federal air quality goals. 

TYPE OF 

AREA 

Regional Conformity Tests (Areas With 

1-hour Ozone Budget - This section 

covers how regional emissions analyses 

must be done in 8-hour ozone areas with 

an existing 1 -hour ozone SIP that covers 

either part or all of the 8-hour ozone 

nonattainment area. The regulatory text 

in Sec. 128 (e) of Part 99 provides a 

general overview of when the budget test 

-and interim emissions tests apply in 8- 

hour ozone nonattainment areas with 

adequate or approved 1 -hour ozone SIP 

budgets. 

Delinitions - Clarify the conformity 

rule's dehitions for "control strategy 

implementation plan revision," 

"milestone," ''donut areas," "isolated 

rural nonattainment and maintenance 

areas," 1-hour nonattainment area, and 8- 

hour nonattainment area in Sec. 7 of Part 

99. The clarifications to these dehitions 

do not impose any new requirements on 

nonattainment and maintenance areas; 

these rule revisions simply clanfy EPA's 

original intent and current implementation of the existing conformity 

rule. 

Areas With Insignificant Motor Vehicle 

Emissions - This section applies to 

nonattainment and maintenance areas 

where EPA fmds 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 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 adequacy finding 

or approval of such a SIP. Sec. 128(K) 

also establishes the minimum criteria that 

are necessary to demonstrate that 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 

Transportation plan and modeling 

requirements (Higher Classifications) - 

Provides a two-year grace period in Sec. 

143 of Part 99 before the more advanced 

transportation modeling requirements in 

Sec. 142 of Part 99 are required in the 

following types of nonattainment areas 

or portions of such areas that are not 

already required to meet these 

provisions: 

Ozone areas that have an urbanized 

area population over 200,000 and are 

reclassified to a serious or higher 

classification (e.g., such a moderate 

ozone area that is reclassified to serious); 

Serious and above ozone areas in 

which the urbanized area population 

increases to over 200,000; and 

Newly designated ozone 

nonattainment areas that are classified as 

serious or above in which the urbanized 

area populations over 200,000. 

These revisions expand the types of areas 

covered by the rule's grace period for 

transportation plan content requirements. 

Ozone areas that have an urbanized 

area population over 200,000 that are 

reclassified to a serious or higher 

classification (e.g., such a moderate 

ozone area that is reclassified to serious), 

Serious and above ozone areas in 

which the urbanized area population 

increases to over 200,000; and 

Newly designated ozone 

nonattainment areas that are classified as 

serious or above in which the urbanized 

area population is over 200,000. 

Clarifying that both Sec. Sec. 125(B) of 

Part 99 and 93.143 of Part 99 that the 

two-year grace periods begins upon 

either the: 

Effective date of EPA's action that 

reclassifies an ozone area with an 

urbanized area population over 200,000, 

to a serious or higher classification, 

Official notice by the Census Bureau 

that the urbanized area population 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 

initially designates an area as a serious or 

above ozone nonattainment area. 

Effective date of EPA's action that 

Non-Federal Projects (For Isolated Rural 

Areas Only) - Ths is a minor 

clarification to Sec. 140@)(1) of Part 99 

that addresses the conformity 

requirements for non-federal projects in 

isolated rural nonattainment and 

maintenance areas. Specifically, the 

hal rule requires a regionally si,gnificant 

non-federal project to be included in the 

regional emissions analysis of the most 

recent conformity determination "that 

reflects" the portion of the statewide 

transportation plan and statewide 

transportation improvement program 

(STP) which includes projects planned 

for the isolated rural 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 of the conformity regulation 

provide this one-year conformity grace 

period. This final rule adds PM2,* to Sec. 

log@) of the conformity rule even 

though the grace period is already 

available to all newly designated 

nonattainment areas as a matter of law. 

PM2.5 as a criteria pollutant that is 

regulated under Part 99 for transportation 

conformity purposes 

Sec. 121(b)(l) 

COOKE TESTlMONY - PAGE 8 

Baseline Year Test - Adds the following 

tests to the conformity rule for PM2.5 

nonattainment areas: 

The "less-than-2002 emissions" test, 

and 

The "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 either less than 

S ec. 1 1 9(b) Sec. 138(B) 
NMED Ehbit 2 

Build No-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 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 available to 

All PMZ.~ areas. 

Regional Conformity Tests in 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 

nonattainrnent areas must meet one of 

the following interim emissions tests for 

conformity determinations conducted 

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. 1 19(e); 

1 Sec. 119(g)2 

L I I 

I ( Re-entrained Road Dust in PM2.5 1 Sec. 102fiY3): 

Sec. 13 8(E); 

Sec. 138(G)(2) 

. - -- ,-,,- ,7 

Regional Emissions Analyses --keentrained road dust will only be included ( Sec. 1 19(f) 

in regional emissions analyses if the 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-entrained road 

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 granular material released into the 

atmosphere as a result of motor vehicle 

activity on paved and unpaved roads. 

1 SECTION 

Construction-Related Fugitive Dust in 

PM2.5 Regional Emissions Analyses - Construction-related fugitive dust 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 quality problem. 

Construction-reIated hgitive dust is 

granular material released 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-entrained road 1 

Sec. 146 

PART 93 

FEDERAL 

, 

PART 99 

NEW MEXICO 

Compliance With PM2,5 SIP Control 

Measures - The rule requires that Federal 

Highway Administration (mA) and 

Federal Transportation Administration 

(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 

implementation of a required control or 

mitigation measure by obtaining 

enforceable written commitments from 

the project sponsor andior operator prior 

to making a project-level conformity 

determination. This requirement would 

be satisfied if the project-level 

conformity determination contains a 

written commitment from the project 

sponsor to include the control measures 

in the hal plans, specifications and 

estimates for the project. 

Definitions - Clarify the conformity 

rule's definitions for "control strategy 

implementation plan revision," 

"milestone," "donut areas," "isolated 

rural nonattainment 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 clarifications to these definitions 

do not impose any new requirements on 

nonattainment and maintenance areas; 

these rule revisions simply clanfy EPA's 

original intent and current 

implementation of the existing 

conformity rule. 

TYPE OF 

AREA 

PART 93 

FEDERAL 

REGULATORY 

SECTION 

ISSUE ADDRESSED IN 

FINAL RULE 

PART 99 

NEW MEXICO 

REGULATORY 

SECTION 

Areas With Insignificant Motor Vehicle 

Emissions - This section applies to 

nonattainment and maintenance areas 

where EPA frnds that the SIP'S motor I. vehlcle emissions for a pollutant or 

precursor for a given standard are an 

insignificant contributor to 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 adequacy finding 

or approval of such a SIP. Sec. 128(K) of 

Part 99 also establishes the minimum 

criteria that are necessary to demonstrate 

that motor vehicle emissions are 

insigrdcant 

Non-Federal Projects (For Isolated Rural 

Areas Only) - This is a minor 

clarification to Sec. 140(B)(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" the portion of the statewide 

transportation plan and statewide 

transportation improvement program 

(STIP) which includes projects planned 

for the isolated rural nonattainment or 

maintenance area before the projects can 

be approved. 

Sec. 109(k); 

Sec. 121(c) 

Sec. 128(K); 

Sec. 140(C) 

S ec. 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 conformity is 

sec. 1 19@)(2); 

Sec. 1 19(g)(2) 

sec. 138(B)(2); 

Sec. 138(G)(2) 
NMED Exhibit 2 

ISSUE ADDRESSED IN 

FINAL RULE 

equal to emissions from 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: 

1 -hour ozone areas of marginal and 

below classifications. 

QuaIity 

Standard 

Regional Conformity Tests Moderate 

and Above Classifications (Higher 

Classifications) - Ozone areas of higher 

nonattainment classifications must meet 

both the build-less-than-no-build and 

less-than-baseline year tests to 

demonstrate conformity in the period 

before SIP budgets are available. This 

provision will affect moderate and above 

1-hour and 8-hour ozone areas. This 

requirement is identical to the 

requirement of the existing conformity 

rule for these areas, and was the &st of 

three options proposed for regional 

emissions analyses before adequate or 

approved SIP budgets are established. 

PART 93 

FEDERAL 

REGULATORY 

Dehitions - Clanfy the conformity 

rule's def~tions for "control strategy 

implementation plan revision," 

"milestone," "donut areas," "isolated 

rural nonattainment and maintenance 

areas," l'hour nonattainment area, 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 maintenance areas; 

these rule revisions simply clarify EPA's 

original intent and current 

implementation of the existing 

conformity rule. 

PART 99 

NEWMEXlCO ~ 

REGULATORY 

Sec. 7 

SECTION 

demonstrated if emissions kom the 

proposed transportation system ("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'S motor , 

vehicle emissions for a pollutant or 

precursor for a given standard are an 

Sec. 109(k); 

S~C. 121(~) 

Sec. 128(K); 

Sec. 140(C) 
hJD Exhibit 2 

TYPE OF 

AREA 

Limited Maintenance Plans - These 

revisions make the conformity rule 

consistent with EPA's existing limited 

maintenance plan policies for the 1-hour 

ozone standard. The revisions allows for 

any hture limited maintenance plan 

policies for other standards to be 

considered in the conformity process. In 

general, a limited maintenance plan 

policy allows a nonattainment area with 

air quality that is significantly below a 

standard to request redesignation through 

a more streamlined maintenance plan. 

ISSUE ADDRESSED IN 

FINAL RULE 

insignificant contributor to an area's 

regional air quality problem. Ths 

provision waives the regional emissions 

analysis for an insi,snificant pollutant or 

precursor in these areas upon the 

effective date of EPA's adequacy finding 

or approval of such a SIP. Sec. 1286) 

also establishes the minimum criteria that 

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 of Part 99 before the more advanced 

transportation modeling requirements in 

I Sec. 142 of Part 99 are required in the 

following types of nonattainment areas 

or portions of such areas that are not 

already required to meet these 

provisions: 

Ozone areas that have an urbanized 

area population over 200,000 and are 

reclassified to a serious or higher 

classification (e.g., such a moderate 

ozone area that is reclassified to serious); 

Serious and above ozone areas in 

which the urbanized area population 

increases to over 200,000; and 

Newly designated ozone 

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 expand the types of areas 

covered by 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 that have an urbanized 

area population over 200,000 that are 

reclassified to a serious or higher 

classification (e.g., such a moderate 

ozone area that is reclassified to serious), 

Serious and above ozone areas in 

which the urbanized area population 

increases to over 200,000; and 

Newly designated ozone 

nonattainment areas that are classified as 

serious or above in which the urbanized 

area population is over 200,000. 

Clarifying that both Sec. 125(B) of Part 

99 and 93.143 of Part 99 that the twoyear grace periods begins upon either 

the: 

Effective date of EPA's action that 

reclassifies an ozone area with an 

urbanized area population over 200,000, 

to a serious or higher classification, 

Official notice by the Census Bureau 

that the urbanized area popuIation is over 

200,000, or 

Effective date of EPA's action that 

initially designates an area as a serious or 

above ozone nonattainment area. 

PART 99 

NEW MEXICO 

REGULATORY 

Non-Federal Projects (For Isolated Rural 

Areas Only) - This is a minor 

clarification to 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 detexmination "that 

reflects" the portion of the statewide 

transportation plan and statewide 

transportation improvement program 

(STIP) which includes projects planned 

for the isolated rural nonattainment or 

maintenance area before the projects 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 requirements for 

each criteria pollutant and standard that 

the budget test must be satisfied as 

required by Sec. 137 of Part 99 for 

conformity determinations made on or 

after any one of the following: 

The effective date of EPA's finding 

that a motor vehicle emissions budget in 

a submitted SIP is adequate, 

The publication date of EPA's 

approval of such a budget in the Federal 

Register, or 

The effective date of EPA's approval 

of such a budget in the Federal Register, 

if the approval is completed through 

direct final 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 

Build No-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 available to 

all PMlo areas. 

Sec. 199(d); ~ 

Sec. 11 9(g)(2) 

COOKE TESTIMONY - PAGE 15 

Clarification to Precursors - These 

revisions clarify the list of PMlo 

precursors in c. Sec. 2(C)(3) and 

13 8(f)(5) of Part 99. Under the revised 

Sec. 2(C)(3), only VOC and NOx are 

identified as PMlo precursors; i.e., PMlo 

is deleted from the list of PMlo 

precursors in this paragraph. The 

revisions to 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 nonattainment and maintenance 

areas," 1-hour nonattainment area, and 8- 

hour nonattainment area in Sec. 7 of Part 

99. The clarifications to these def~tions 

do not impose any new requirements on 

nonattainment and maintenance areas; 

these rule revisions simply clarify EPA's 

original intent and current 

implementation of the existing 

conformity rule. 

TYPE OF 

AREA 

Areas With Insignificant Motor Vehcle 

Emissions - This section applies to 

nonattainment and maintenance areas 

where EPA fmds that the SIP'S motor 

vehicle emissions for a pollutant or 

precursor for a given standard are an 

insidcant contributor to 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 adequacy finding 

or approval of such a SIP. Sec. 128(K) 

also establishes the minimum criteria that 

are necessary to demonstrate that motor 

vehicle emissions are insignificant. 

Limited Maintenance Plans - These 

revisions make the conformity rule 

consistent with EPA's existing limited 

maintenance plan policies for the 1-hour 

ozone standard. The revisions allows for 

any future limited maintenance plan 

policies for other standards to be 

considered in the conformity process. In 

general, a limited maintenance plan 

policy allows a nonattainment area with 

air quality that is signrficantly below a 

standard to request redesi,mtion through 

a more streanlined nzintenance plan. 

Sec. 101 

ISSUE ADDRESSED IN - - 

FLNAL RULE 

consistency with other pollutants and 

precursors discussed in this paragraph. 

Neither of these rule changes wilI affect 

conformity determinations in PMlo 

nonattainment and 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 

clarification to 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" the portion of the statewide 

transportation plan and statewide 

transportation improvement program 

(STP) which includes projects 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 5,2003 fmal rule, EPA 

proposed to clarify the 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 EPAts finding 

that a motor vehicle emissions budget in 

a submitted SIP is adequate, 

The publication date of EPA1s 

approval of such a budget in the Federal 

Register, or 

The effective date of EPA1s approval 

of such a budget in the Federal Register, 

if the approval is completed through 

direct final rulemaking. 

 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, the budget 

would be used in any conformity 

determination conducted after the first 

time one of these three EPA actions 

occurs. 

Sec. 140(B)(1) 

Sec. 128(G) 

I CO National 1 Build1 No-Build Test (Lower 1 Sec. 119(~); 

COOKX TESTIMONY - PAGE 17 

( ~~bi~~~ ~i~ 1 2:~:d 

classifications) - The federal rule is 

amended to create the "build-no-greaterthan-no-build" test, where conformity is 

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 emissions from 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 of moderate classification 

with design values less than 12.7 ppm 

and 

Not classified CO areas. 

Regional Conformity Tests Moderate 

and Above Classifications Mgher 

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 design values greater than 12.7 

ppm, and serious CO areas. This 

requirement is identical to the 

requirement of the existing conformity 

rule for these areas, and was the first of 

three options proposed for regional 

emissions analyses 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-hour nonattainment area, and 8- 

hour nonattainment area in Sec. 7 of Part 

99. The clarifications to these defjnitions 

do not impose any new requirements on 

nonattainment and maintenance areas; 

these rule revisions simply clanfy EPA's 

original intent and current 

implementation of the existing 

conformity rule. 

PART 93 

FEDERAL 

REGULATORY 

SECTION 

Sec. 119(c)l 

PART 99 

NEW MEXICO 

REGULATORY 

SECTION 

Sec. 138(C) 1 

COOKE TESTIMONY - PAGE 18 

Areas With Insigdicant Motor Vehicle 

Emissions - This section applies to 

nonattainment and maintenance areas 

where EPA finds that the SIP'S motor 

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 of EPA's adequacy finding 

or approval of such a SIP. Sec. 128(K) of 

Part 99 also establishes the minimum 

criteria that are necessary to 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 of Part 99 before the more advanced 

transportation modeling requirements in 

Sec. 142 of Part 99 are required in the 

following types of nonattainment areas 

or portions of such areas that are not 

already required to meet these 

provisions: 

CO areas that have an urbanized area 

population over 200,000 and are 

reclassified to a serious or higher 

classification (e.g., such a moderate CO 

area that is reclassified to serious); 

Serious and above CO areas in which 

the urbanized area population increases 

to over 200,000; and 

Newly designated CO nonattainment 

areas that are classified as serious or 

above in which the urbanized area 

populations over 200,000. 

Limited Maintenance Plans - These 

revisions make the conformity rule 

consistent with EPA's existing limited 

maintenance plan policies for the CO 

standard. The revisions allows for any 

future limited maintenance plan policies 

for other standards to be considered in 

the conformity process. In general, a 

limited maintenance plan policy allows a 

nonattainment area with air quality that 

is sigmticantly below a standard to 

request redesignation through a more 

streamlined maintenance plan. 

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 Exhibit 2 

TYPE OF ISSUE ADDRESSED IN 

FINAL RULE 

These revisions expand the types of areas 

covered by the rule's grace period for 

transportation plan content requirements. 

Serious and above CO areas in 

which the urbanized area population 

increases to over 200,000; and 

Newly designated CO nonattainment 

areas that are classfied as serious or 

above in which the urbanized area 

population is over 200,000. 

Clarifying that both Sec. Sec. 125@) 

and 93.143 of Part 99 that the two-year 

grace periods begins upon either the: 

Effective date of EPA's action that 

reclassifies a CO area with an urbanized 

area population over 200,000, to a 

serious or higher classification, 

Official notice by the Census Bureau 

that the urbanized area population is over 

200,000, or 

Effective date of EPA's action that 

initially designates an area as a serious or 

above CO nonattainment area. 

Non-Federal Projects (For Isolated Rural 

Areas Only) - This is a minor 

clarification to Sec. 140@)(1) of Part 99 

that addresses the conformity 

requirements for non-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 analysis of the most 

recent conformity determination "that 

reflects" the portion of the statewide 

transportation plan and statewide 

transportation improvement program 

(STIP) which includes projects 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 5,2003 final rule, EPA 

proposed to clanfy the requirements for 

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 Exhibit 2 

required by Sec. 137 for conformity 

determinations made on or after any one 

of the following: 

The effective date of EPA's finding 

that a motor vehicle emissions budget in 

a submitted SIP is adequate, 

The publication date of EPAfs 

approval of such a budget in the Federal 

Register, or 

The effective date of EPA's approval 

of such a budget in the Federal Register, 

if the approval is completed through 

direct ha1 Alemaking. 

TYPE OF 

AREA 

NOx National 

Ambient Air 

Quality 

Standard 

ISSUE ADDRESSED IN 

FINAL RULE 

Under this Gnal rule change, the budget 

would be 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 

amended to create the "build-no-greaterthan-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-no-greater-than-no-build 

test is available to the following all NO2 

areas. 

Defmitions - Clarify the conformity 

rule's definitions for "control strategy 

implementation plan revision," 

"milestone," "donut areas," "isolated 

rural nonattainment and maintenance 

areas," 1 -hour nonattainment area, 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 maintenance areas; 

these rule revisions simply clarify EPA'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 applies to 

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 quality problem. This 

provision waives the regional emissions 

analysis for an insigruficant 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 criteria that 

are necessary to demonstrate that motor 

vehicle emissions are insignificant. 

TYPE OF 

AREA 

Non-Federal Projects (For Isolated Rural 

Areas Only) - This is a minor 

clarification to 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 

final rule requires a regionally significant 

non-federal project to be included in the 

regional emissions analysis of the most 

recent confonnity determination "that 

reflects" the portion of the statewide 

transportation plan and statewide 

transportation improvement program 

(STIP) which includes projects planned 

for the isolated rural nonattainment or 

maintenance area before the projects can 

be approved. 

Clarificatfon to Use of Approved 

ISSUE ADDRESSED IN 

FINAL RULE 

Budgets in Conformity ---4 clarification 

to the November 5,2003 final de, EPA 

proposed to clanfy the 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 emissions budget in 

a submitted SIP is adequate, 

The publication date of EPA's 

approval of such a budget in the Federal 

Register, or 

The effective date of EPA's approval 

of such a budget in the Federal Register, 

if the 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 - PAGE 22 
NMED Exhibit 2 

Miscellaneous 

Revisions 

Under this fmal rule change, the budget 

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 - final rule modifies Sec. 

109(C) of the 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 conformity lapse no new 

conformity determinations for plans, 

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 required FHWA or FTA 

approvals or funding commitments 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 SIPS Adequate - The 

final rule modified several provisions 

under Sec. 128 and 137 of Part 99 to 

specify that EPA must affinhatively find 

submitted budgets adequate before they 

can be used in a conformity 

determination. The fmal rule also 

establishes the process by which EPA 

will review and make adequacy findings 

for submitted SIPs, as described in the 

June 30,2003 proposal. Specifically, the 

final rule eliminates those provisions in 

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 can be used in 

General Description of the Vehicle 

Emissions Budgets Adequacy Process - 

The final rule adds a new provision, Sec. 

1370, to the conformity rule that 

provides the basic ffamework of the 

adequacy process. The new Sec. 137(F) 

generally reflects EPA's existing 

adequacy process as proposed in the June 

30,2003 rulemakmg and described in 

EPA's 1999 adequacy guidance. The 

adequacy process consists of three basic 

steps: public notification of a SIP 

submission, a public comment period, 

and EPA's adequacy finding, including 

response to submitted comments. 

ISSUE ADDRESSED IN 

FINAL RULE 

Vehcle Emissions Budgets Adequacy 

Reviews Through the SIP Process - This 

revision kalizing procedures for 

conducting adequacy reviews and 

mhg adequacy findings through the 

SIP approval process in Sec. 137(F)(2). 

SECTION 

Non-Federal Projects - A minor 

amending Sec. 140(A) of the conformity 

rule so that regionally sigmficant nonfederal projects can no longer be 

advanced during a conformity lapse 

unless they have received all necessary 

state and local approvals prior to the 

lapse. Non-federal projects are projects 

that are fimded or approved by a 

recipient of federal funds designated 

under title 23 U.S.C. or the Federal 

Transit Laws, but that do not require any 

FHWA/FTA funding or approvals. 

Under this final rule, recipients of federal 

funds cannot adopt or approve a 

regionally significant, non-federal 

project unless it is included in a currently 

conforming plan and TIP or is reflected 

in the regional emissions analysis 

supporting a currently conforming plan 

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 

conformity rule that provided a narrowly 

targeted flexibility to areas with SIPS that 

had been submitted prior to the 

publication date of the original 

November 24, 1993 conformity rule was 

deleted. Under this provision, if an 

approved SIP submitted before 

November 24, 1993, had included a 

safety margin, but did not specify how 

the safety margin was to be used, an area 

could submit a revision to the SIP and 

specifically allocate all or a portion of 

the safety margin to the SIP'S motor 

vehicle emissions budget(s). The 1997 

rule allowed this SIP revision to become 

effective for confonnity purposes 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. 113 of Part 99. 

Specifically, eliminating Sec. 1 13(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. 1 15 of 

Part 99. In particular, 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 promulgated the 

conformity rule, 58 FR 621 88). Sec. 

11 5(A) is no longer relevant for any area. 

Finalizing two revisions to Sec. 1 15, 

which requires a confonnity 

determination wihn 18-months of 

EPA's approval of a SIP. The first is 

specQmg that an 18-month clock begins 

on the effective date of EPA's approval 

of the SIP. This clarification will resolve 

any ambiguity in the current rule as to 

when this 18-month clock begins. The 

second revision to Sec. 1 15173) 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 Exhibit 2 

TYPE OF 

AREA 

when a conformity determination has 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 

latest planning assumptions are 

determined. 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 

DOT'S conformity determination for a 

transportation plan, TIP, or project. 

Horizon Years for Hot-Spot Analyses - The revision clarifies Sec. 13 5 of the 

conformity rule so that project-level hotspot analyses in metropolitan 

nonattainrnent and maintenance areas 

must consider the full time frame of an 

area's transportation plan at the time the 

analysis is conducted. 

ISSUE ADDRESSED IN PART 99 

SECTION 

Relying on a Previous 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 

conformity determination. First revision 

is to Sec. 147 so that MPOs can rely on a 

previous regional emissions analysis for 

minor transportation plan revisions. 

Second revision 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 Test Requirements for the I Sec. 1 18@); 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) should be 

implemented when a budget is 

established for a year prior to the 

attainment year (e.g., a reasonable further 

progress budget). Specifically, amending 

Sec. 137 (El) so that once an area has any 

control strategy SIP budget available for 

conformity purposes, conformity must be 

demonstrated using the "budget test" for 

the attainment year if the attainment year 

is within the time fiame of the 

transportation plan 

PART 93 

FEDERAL 

REGULATORY 

Budget Test Requirements Once a 

Maintenance Plan 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 maintenance plan budgets. 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 budget that is 

established for any year within the time 

fiame of the transportation plan. The 

second revision is 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 of the 

maintenance plan 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 rule revision to its right-ofway regulation (64 FR 71284) that 

changed the citation for emergency or 

hardship advance land acquisitions 

(revised citation: 23 CFR 710.503) -- activities that are currently exempt from 

the conformity process. As a result, Sec. 

15 1 has been amended to make the 

conformity rule fully consistent with 

DOT'S December 1999 rulemaking. 

COOKE TESTIMONY - PAGE 27 

Set. 126 
NMED Exhbit 6 

NEW MEXICO ENVIROMMENTAL IMPROVEMENT BOARD 

NOTICE OF PUBLIC MEETING AND HEARING 

Proposed Revision of 20.2.99 iVM.4 C-Con formirfy to the State Implementation Plan of 

Transportation Plans, Programs and Projects (EIB 05-03 (R) 

The New Mexico Environmental Improvement Board (Board) will hold a public hearing on July 

5,2005, in conjunction with their normal July meeting. The hearing will begin at 9:00 a.m. at 

the New Mexico State Capital Building in Santa Fe, New Mexico. At this hearing, the Board 

will consider proposed revisions to the EIB 05-03(R) Air Quality Control Regulation 20.2.99 

NMAC - Conformity to the State Implementation Plan of Transportation Plans, PI-ograms, and 

Projects. 

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 revisions to the above-listed 

State Implementation Plan (SIP) revision. These proposed changes are intended to incorporate 

mandated revisions from the U.S. Environmental Protection Agency for transportation 

conformity. The NMED proposal includes minor revisions of the 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 and particulate matter 2.5 microns in size National 

Ambient Air Quality Standards. 

The proposed 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 of the hTMED'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 (Rulemaking Procedures) 

Environmental Improvement Board, the Environmental Improvement Act, Section 74- 1-9 

NMSA 1978, the Air Quality Control Act Section 72-2-6 hTMSA 1978 and other applicable 

procedures. 

All interested persons will be given reasonable opportunity at the hearing to submit relevant 

evidence, data, views and arguments, orally or in writing, to introduce exlubits, and to examine 

witnesses. Persons wishing to present technical testimony must file with the Board a written 

notice of intent to do so. The notice of intent shall: 

(1) identify the person for whom the witness(es) will testify; 

(2) identify each technical witness that the person intends to present and state the 

qualifications of the witness, including a description of their education and work background; 

(3) summarize or include a copy of the direct testimony of each technical witness and state 

the anticipated duration of the testimony of that witness; 

(4) list and describe, or attach,each exhibit anticipated to be offered by that person at the 

hearing; and 

(5) attach the text of any recommended modifications to the proposed changes. 
Notice 

New Mexico Register / VoIume XVI, Number 8 /April 29,2005 

Page 1 of 2 

NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD 

NOTICE OF PUBLIC MEETING AND HEARING 

Proposed Revision of 20.2.99 NlMAC - Conformity to the State Implementation PIan of Transportation PIans, 

Programs and Projects (ElB 05-03 (R)) 

The New Mexico Environmental Improvement Board (Board) will hold a public hearing on July 5,2005, in conjunction with 

their normal July meeting. The hearing will begin at 9:00 am. at the New Mexico State Capital Building in Santa Fe, New 

Mexico. At this hearing, the Board will consider proposed revisions to the ED3 05-03(R) Air QuaLity Control Regulation 

20.2.99 NMAC -- Conformity to the State Implementation Plan of Transportation Plans, Programs, and Projects. 

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 revisions to the above-listed State Implementation Plan (SIP) revision. These 

proposed changes are intended to incorporate mandated revisions from the U.S. Environmental Protection Agency for 

transportation conformity. The NMED proposal includes minor revisions of the 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 and particulate matter 2.5 microns in size National Ambient Air Quality Standards. 

The proposed changes may be reviewed during regular business hours at the NMED Air QuaIity Bureau office located at 

2044 Galisteo, Santa Fe, New Mexico. A full text of the NMED's proposed changes are also available on the NMED's web 

site at wwwmenv.state.nrn.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 (Rulemaking Procedures) Environmental Improvement 

Board, the Environmental Improvement Act, Section 74-1-9 NMSA 1978, the Air Quality Control Act Section 72-2-6 NMSA 

1978 and other applicable procedures. 

All interested persons will be given reasonable opportunity at the hearing to submit relevant evidence, data, views and 

%gents, orally or in writing, to introduce exhibits, and to examine witnesses. Persons wishing to present technical 

testimony must file with the Board a written notice of intent to do so. The notice of intent shall: 

(1) idene the person for whom the witness(es) will testify; 

(2) idene each technical witness that the person intends to present and state the qudifications of the witness, including 

a description of their education and work background; 

(3) summarize or include a copy of the direct testimony of each technical witness and state the anticipated duration of the 

testimony ofthat witness; 

(4) list and describe, or attach, each exhibit anticipated to be offered by that person at the hearing; and 

(5). attach the text of any recommended modifications to the proposed changes. 

Notices of intent for the hearing must be received in the Office of the Environmental Improvement Board not later than 500 

pm on June 24,2005, and should reference the name of the SIP revision and the date of the hearing. Notices of intent to 

present technical testimony should be submitted to: 

Barbara Claire, Board Administrator 

Ofice of the Environmental Improvement Board 

Harold Runnels Building 

1190 St. Francis Dr., Room N-2150 12153 

Santa Fe, NM 87502 

Phone: (505) 827-2425, Fax (505) 827-2836 

Any member of the general public may testify at the hearing. No prior notification is required to present non-technical 

testimony at the hearing. Any such member may also offer exhibits in connection with his testimony, so long as the exhibit is 

not unduly repetitious of the testimony. 

A member of the general public who wishes to submit a mitten statement for the record, in lieu of providing oral testimony 

at the hearing, shall file the written statement prior to the hearing, or submit it at the hearing. 

Persons having a disability and needing help in being a part of this hearing process should contact Judy Bentley by June 24, 

2005 at the New Mexico Environment Department, Personnel Services Bureau, P.O. Box 26 110, 1 190 St. Francis Drive, 

Santa Fe, New Mexico, 87502, teiephone 505-827-9872. users please access her number via the New Mexico Relay 

Network at 1-800-659-833 1. 

http ://www.nmcpr.state.nm.uslnmregister/xvi/xviO 8EIBnotice.htm 611 512005 
The New Mexlco ~nvlronmenial 

Im rovemenl Board (Bohrd) will 

hoka publ~! hearing m July 51 

2005, In coniunclion wllh 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~ronment Deoarlmenl ! 

(NMEDj regarding roposed revi- 'r 

slons 113 lhe above-Itled SlaleI)mm 1 

olemenlalion Plan (SIP\ revis~on . I These poposed cfiang'es a[e in- k 

lehded lo lncoroorale mandaled k 

I revisions! from .he U.S.. Environ-:I 

menlal Proleclion Agency lor I lrans~orlalion conlormlly. The 1 

I NMED orooosal Includes minor're- I 

vislons' 01' the 18.monlh re uire I men1 for lnillal SIP submissqons; 1, I Ihe addllion ol a orace oeriod lor I , newly designaledsn6n a~ainmenl 4 areas and amendments lot Ihe I! t new 8-hour ozone and partlcuiale / I rnaller 2 5 mlcrons in slze Nalional 

I I Ambknl Alr Qu~lily Standards. I( 

The pro osed chan es 'ma; be 

rev~ewecfdurin re jar bdslness 

hours a1 Ihe /SMW Air 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-. 

re me, 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 

1205 Camino Carlos Rey 

Santa Fe, NM 87507 

505-476-7907 

Affidavit of Publication in the New Mexico Register 

I certify that the agency noted below has published legal notices or rules in the New Mexico 

Register, and that payment has been assessed by invoice for said legal notice or publication, 

which appeared on the date and in the volume and issue number noted below. 

Date of Publication: 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 State Implementation Plan 

Date: 10/6/2005 

New Mexico Commission of Public Records 

Notice to Publishing Agency 

Enclosed are your agency's proof copies of the legal notices or rules which were published in the New 

Mexico Register. These document the fact that your Notice of Rulemaking, Proposed Rule, or 

Adopted Rule has 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 

0 

equal to a nominal 10 micrometers (PMIO) 

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 within1 000 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 

PM 10 areas if: 

nition and causes waste by violating Section duration sufficient to support, and under I I (a) the EPA region 6 administra70-2-1 6 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 gas of the 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 are necessary for building 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 or by-product material as defined 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 

the nonattainment-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 20 years 

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. 

[I 2/14/94; 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., US EPA 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 11 0(c), 

or promulgated or approved pursuant to regulations promulgated under Section 301(d) 

and which implements the relevant requirements of the CAA. 

[8]D. "CAA" means the 

Clean Air 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 of the standard during the future period in question, if the project were not 

implemented, or 

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

standard in such area. 

[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 or reducing the 

severity and number of violations of the 

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

(1) cause or contribute to any new 

violations of any standard in any area; 

(2) increase the frequency or 

severity of any existing violation of any 

standard in any area; or 

(3) delay timely attainment of any 

standard or any required interim emission 

reductions or other milestones in any area. 

[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 1 89(d); and Sections 192(a) and 192(b), 

for nitrogen dioxide;- 

ble CAA provisions requiring a demonstration of reasonable 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 or person carrying capacity and control, e.g., number of lanes or tracks to be 

constructed or added, length of project, signalization, access control including approximate number and location of interchanges, 

preferential treatment for high-occupancy 

vehicles, etc. 

- 0. "Donut areas" are 

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 of this part, is any 

highway or transit project which is proposed to receive funding assistance and 

approval through the federal-aid highway 

program or the federal mass transit program, or requires federal highway administration (FHWA) or federal transit administration (FTA) approval for some aspect of 

the project, such as connection to an interstate highway or deviation from applicable 

design standards on the interstate system. 

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 if no 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 exempt project) that is on 

a facility which serves regional transportation needs (such as access to and from the 

area outside of the region, major activity 

centers in the region, major planned developments such as new retail malls, sports 

complexes, etc., or transportation terminals, 

as well as most terminals themselves) and 

would normally be included in the modeling 

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

(1) all principal arterial highways; 

and 

(2) all 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 for reasonable 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 mass 

transportation by bus, rail, or other conveyance which provides general or special 

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

buses or charter or sightseeing services. 

[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 or severity" means to cause a location or 

region to exceed a standard more often or to 

cause a violation at a greater concentration 

than previously existed andlor would otherwise exist during the future period in question, if the project were not implemented. 

X. "Isolated rural nonattainment and maintenance areas" are 

areas that do not contain or are not 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~rovement programs. These are not 

donut areas. 

[T]Y. "Lapse" means that the 

conformity determination for a transportation plan or TIP has expired, and thus there 

is no currently conforming transportation 

plan and TIP. 

z -ce 

plan" 

fi 

is a maintenance olan that EPA has 

nance ~lan policv criteria for a eiven 

NAAOS and pollutant. To aualifv for a limmust 

ited maintenance olan. for example. an area 

fl 

Iv below a given NAAOS. and it must be 

motor vehicle emissions growth. 

[Wu. "Maintenance area" 

means any geographic region of the United 

States previously designated nonattainment 

pursuant to the CAA Amendments of 1990 

and subsequently redesignated to attainment subject to the requirement to develop 

a maintenance plan under Section 175A of 

the CAA, as amended. 

[V;IB. "Maintenance plan" 

means an implementation plan under 

Section 175A of 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 

CAA 

- be achieved as reauired bv the applicable 

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 SIP to 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 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. 

[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 23 U.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 1013 1/02; 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. 

[I 2/14/94; 1 1/23/98; 20.2.99.11 2 NMAC - Rn, 20 NMAC 2.99.1 12 10/31/02; A, 

101 15/05] 

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 analvNew 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 SIP that is either one of the types listed in Section 108 of the CAA, or any other 

measure for the purpose of reducing emissions or concentrations of air pollutants 

from transportation sources by reducing 

vehicle use or changing traffic flow or congestion conditions. Notwithstanding the 

above, vehicle technology-based, 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. 

- AY. "US EPA" 

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 a description of the action to be taken; a schedule for 

the completion of the action; a demonstration that funding necessary to implement 

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

acknowledgment that the commitment is an 

enforceable obligation under the applicable 

implementation plan. 

[12/14/94; 11/23/98; 20.2.99.7 NMAC - Rn, 

20 NMAC 2.99.107 10/31/02; A, 10/15/05] 

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 of TIPS and 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 FHWAFTA projects. However, 20.2.99.140 NMAC applies 

to such projects if they are regionally significant. 

B. Geographic and pollutant applicability are set out in 20.2.99.2 

NMAC (Scope). 

[P 

C. Limitations. 

. . 

& 

-'-'---.--'.--'.-..- 

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'ect to this sub~art. a

currentlv conformine trans~ortation plan 

and TIP must be in place at the time of proiect approval as described in Subsection A of 

20.2.99.133 NMAC. except as provided bv 

Subsection B of 20.2.99.133 NMAC. 

of 

N 

- D. Grace ~eriod for new 

ignatedy 

standard for ozone. CO. PMIO. PM2.5 or 

Nmv 

redesignated to nonattainment or desinnated 

these 

n4f 
1006 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; 20.2.99.1 13 NMAC - Rn, 20 NMAC 2.99.113 10/31/02; A, 

1011 5/05] 

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 step to 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~ecifications and 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 of each 

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 

-1 

[B - 

[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, 

101 15/05] 

20.2.99.116 CONSULTATION. 

A. 20.2.99.11 6 NMAC 

through 20.2.99.124 NMAC provide procedures for the interagency (federal, state, and 

local) consultation process, resolution of 

conflicts, and public consultation. Public 

consultation procedures will be developed 

in accordance with the requirements for 

public involvement in 23 CFR part 450. 

The affected agencies listed in Subsection C 

of 20.2.99.116 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 17 NMAC 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 20.2.99.11 9 

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 making 

any 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 

EPA region 6, including consultation on the 

issues described in 20.2.99.1 17 NMAC. 

This opportunity for consultation shall be 

provided prior to the determination of conformity. 

C. Affected agencies[+]], 

(1) Agencies which are affected 

by this part and which are required to 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 or maintenance 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 in the 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) EPA region 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, 

1011 5/05] 

20.2.99.117 AGENCY ROLES IN 

CONSULTATION. Specific roles of the 

agencies participating in the interagency 

consultation process are listed below. 

Specific responsibilities of the agencies participating in the interagency consultation 

process are listed in 20.2.99.118 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. The department 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 of TCMs to be submitted as part of the SIP; and 

(3) any amendments or revisions 

thereto. 

B. In the case of areas in 

which an MPO has been established, the 

designated MPO for the nonattainment or 

maintenance area shall be the lead agency 

for: 

(1) the development of the unified 

planning work program under 23 CFR 

450.3 14; 

(2) development of the transportation plan for the 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 of the 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 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 

(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, 

1011 5/05] 

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 for use in air quality analysis to 

determine conformity of transportation 

plans, TIPS, and projects; 

(4) monitoring regionally significant projects; 

(5) developing system- or facility-based or other programmatic (non-regulatory) TCMs; 

(6) providing technical input on 

emissions budgets; and 

(7) performing transportation 

modeling, regional emissions analyses and 

documentation of timely implementation of 

TCMs needed for conformity assessments. 

C. [-I 

NMDOT shall be responsible for: 

(1) providing technical input on 

proposed 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. 

:mber 30,2005 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 1013 1/02; A, 

1 01 1 5/05] 

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 

shall be the agencies specified in Subsection 

C of 20.2.99.1 16 NMAC 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, as 
1008 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 

SIP to 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 agency shall 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 

the context of a memorandum of agreement, 

on emissions analysis for transportation 

activities which cross the borders of MPOs 

or nonattainment areas or air basins. The 

lead agency shall be [-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 20.2.99.11 1 

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] 

20.2.99.147 NMAC. 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 conformity of 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 agreement or 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 ROUTINE ACTIVITIES. An interagency consultation process among the lead and participating agencies shall be undertaken for the 

following routine activities in accordance 

with all the procedures specified in 

20.2.99.119 NMAC. The lead agency for 

each activity shall be as specified, and the 

participating agencies shall be the agencies 

specified in Subsection C of 20.2.99.11 6 

NMAC above or as specified for the specific activity. Not later than thirty (30) days 

prior to the preparation of the final document or decision, the lead agency shall supply all relevant information and documents, 

as appropriate, to the participating agencies. 

A. Identification, as 

required by Subsection B of 20.2.99.146 

NMAC, of projects located at sites in PM10 

nonattainment areas which have vehicle and 

roadway emission and dispersion characteristics which are essentially identical to those 

at sites which have violations verified by 

monitoring, and therefore require quantitative PMlO hot-spot analysis. The lead 

agency shall be either the MPO or [(ke 

&%W-W3] NMDOT, in cooperation with 

the department. 

B. Assumption of the 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 shall be 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 to the 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) any policy 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 any indebtedness 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 

has confirmed receipt by the secretary of the 

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 accordance with 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 such regionally significant project that has not been 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 of repeated failures to disclose regionally significant projects by an agency that 

becomes aware of any such project through 

applications for approval, permitting or 

funding, all other regionally significant 

projects within the jurisdiction of such 

agency shall be deemed to be not included 

in the regional emissions analysis supporting the currently conforming TIP'S conformity determination and to be not consistent with the motor vehicle emissions budget in the SIP, for the purposes of 20.2.99.140 

NMAC. 

(4) For the purposes of this section (20.2.99.121 NMAC) and 20.2.99.140 

NMAC, the phrase "adopt or approve of a 

regionally significant project" means the 

first time any action necessary to authorizing a project occurs, such as any policy 

board action necessary for the project to 

proceed, the issuance of administrative permits for the facility or for construction of 

the facility, the execution of a contract to 

construct the facility, any final action of a 

board, commission or administrator authorizing or directing employees to proceed 

with construction of the project, or any written decision or authorization from the MPO 

that the project may be adopted or 

approved. 

[12/14/94; 11/23/98; 20.2.99.121 NMAC - Rn, 20 NMAC 2.99.121 10/31/02; A, 

1 01 1 5/05] 

20.2.99.122 N 0 T IF I C A 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 16 NMAC). 

[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 

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 of the department of 

the resolution of the comments of the 

department. If the department appeals to 

the governor, the final conformity determination must have the concurrence of the 

governor. The department must provide 

notice of any appeal under this Subsection 

to the MPO and [-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 

emissions model 

(c) 20.2.99.13 1 NMAC. 

Consultation 

(2) Transportation Plan 

(a) Subsection B of 20.2.99.132 

NMAC. TCMs 

(b) 20.2.99.137 NMAC and/or 

20.2.99.138 NMAC. Emissions budget 

@or interim [ISIemission~ [wdtwtk] 

(3) TIP 

(a) Subsection C of 20.2.99.132 

NMAC. TCMs 

(b) 20.2.99.137 NMAC and/or 

20.2.99.138 NMAC. 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 

PMI 0 hot spots 

(d) 20.2.99.136 NMAC. PMlO 

and PM2.5 control measures 

(5) Project (Not from a conforming plan and TIP) 

(a) Subsection D of 20.2.99.132 

NMAC. TCMs 

(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 

- andor interim emissiong [wh&k] 

C. I-hour [Ql~zone nonattainment 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 1 in 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 of design concept, design 

scope, and operating policies sufficiently to 

allow modeling of their transit ridership; the 

description of additions and modifications 

to the transportation network shall also be 

sufficiently specific to show that there is a 

reasonable relationship between expected 

land use and the envisioned transportation 

system; and 

(c) other future transportation 

policies, requirements, services, and activities, including intermodal activities, shall be 

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 1013 1/02; 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 to be found to conform the MPO and 

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

satisfied and the MPO and US DOT must 

comply with all applicable conformity 

requirements of implementation plans and 

of court orders for the area which pertain 

specifically to conformity. The criteria for 

making conformity determinations differ 

based on the action under review (transportation plans, TIPS, and FHWNFTA projects 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 FHWAIFTA projects. 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 of this 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 
September 30,2005 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 

1 

20.2.99.128 NMAC that are required to be 

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 as required 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 

nr 

ozone NAAOS will be considered to estab- 

- NOx if the im~lementation ~lan orDlan submotor - vehicle emissions budeet that is intended to 

act as a on NOx emissions - and the NOx-motor vehicle emissions 

et is a net reduction from NOx emissions 

New Mexico Register 

mined control strategv implementation 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 ~lan revision or maintenance ~lan for the I-hour 

ozone NAAOS. 

[ 

p 

Inr\ 

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 emissions budgthe 

et for NOx. The implementation plan for 

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 of clean 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 

1 

[Subsection D of Section 20.2.99.128 

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 

tive 

NMAC) applies one (1) vear after the effec- 
/ 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 

fi 

20.2.99.138 NMAC for either: the portioo 

covered bv the approved or adeauate budeets in the I-hour ozone implementation 

pp 

ozone 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 Section 

20.2.99.137NMAChour ozone nonattainment area covered by 

the corresponding portion of the approved 

or adeauate motor vehicle emissions budgets in the I-hour ozone a~vlicable im~lementation plan or implementation plan submission where thev can be reasonablv idenfifi 

process reauired bv Section 20.2.99.11 6 

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 adeauate budeets 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 

SIP budeets 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-20.2.99.128 NMACI. the interim 

emissions tests as reauired bv Section 

20.2.99.138 NMAC. where the budeet test 

usine the approved or adeauate motor vehicG 

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 

0

transportation plan. TIP. or project not from 

$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 area must 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. 

1 

14) Ozone nonattainment areas 

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 

20.2.99.1 28 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 following 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~ecto 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 of ozone vrecursors 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 of the 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 in Table 1 in Subsection B 

of this section (2.20.2.128 NMACI that are 

reauired 

8-hour ozone nonattainment and maintenance areas conformitv determinations 

must include a demonstration that the budgRegister / 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 determinations made 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 nonattainfurtherent area 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~roved or adeauate motor vehicle emissions budgets in the I-hour ozone auplicable implementation plan or implementation 

within 

plan submission. 

ment area covers 

(p 

a smaller geoma~hic area 

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 

tionin the I -hour ozone applicable imdementasion where such ~ortion(sI can reasonably 

be identified through the interaeencv consultationDrocess 

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 

OK 

sarv to meet the budget test for the 8-hour 

sions reductions mument 

$-hour 

area 

nonattainment area. 

[If 

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 

20.2.99.137 NMAC 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 11 5%) 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 

] 

p 

for NOx if the im~lementation plan or plan 

act as a ceiling on future NOx emissions, 

and the NOx motor vehicle emissions budeet 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 emissions budget that 

is intended to act as a ceiline on future NOx 

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 as described in Paraeraph (21 of 

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~licable control 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 ruler 

making that determines that the area has 

[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 CO attainment demonstration 

or maintenance plan is approved by US 

EPA, FHWAFTA projects must also satisfy 

the hot spot test required by Subsection B of 

20.2.99.1 35 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 

areas the interim emissions [-I tests 

must be satisfied as required by 20.2.99.138 

NMAC for conformity determinations 

made when there is no a~proved motor 

vehicle emissions budget from an applicable implementation plan and no adequate 

motor vehicle emissions budeet from a sub1- 

(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 contains motor vehicle emissions budget(~) 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 

20.2.99.128 NMAC). 

[&]G. PMlO nonattainment 

and maintenance areas. In addition to the 

criteria listed in Table 1 in Subsection B of 

20.2.99.128 NMAC that are required to be 

satisfied at all times, in PMlO nonattainment and maintenance areas conformity 

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 as required 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 a budeet 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) FHWAFTA projects 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 projects 

must satisfy one of the following requirements: 

(i) 20.2.99.137 NMAC; 

(ii) 20.2.99.138 NMAC 

(including regional emissions analysis for 

NOx in all ozone nonattainment and maintenance areas, notwithstanding Paragraph 

(2) of Subsection [&%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 

20.2.99.11 7 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, 

1011 5/05] 

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 emisafter 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 

TIP must discuss how transit operating policies (including fares and service levels) and 

assumed transit ridership have changed 

since the previous conformity determination. 

D. The conformity determination must include reasonable assumptions about transit service and increases in 

transit fares and road and bridge tolls over 

time. 

E. The conformity determination must use the latest existing information regarding the effectiveness of the 

TCMs and other implementation plan measures 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 or number 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 and 
20.2.99.137 CRITERIA AND 

PROCEDURES - MOTOR VEHICLE 

EMISSIONS BUDGET. 

A. The transportation plan, 

TIP, and project not from a conforming 

transportation plan and TIP must be consistent with the motor vehicle emissions 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 of the 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 affected by the project 

(in CO nonattainment areas). This criterion 

is satisfied with respect to existing localized 

CO violations if it is demonstrated that during the time frame of the 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 1013 1/02; 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 for the 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~plicable im~lementation SIP. 

[12/14194; 11/23/98; 20'2'99'136 - Rn' 20 NMAC 2'99. 36 '/02; A' 

1 01 1 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 budget 

must 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 emissions budget(s) must 

be accompanied by a qualitative finding that 

there are no factors which would cause or 

the pollutants or pollutant precursors 

described in Subsection C of 20.2.99.137 

WAC are less than or equal to the motor 

vehicle emissions budget(s) established in 

the applicable implementation plan or 

implementation plan submission. 

B. Consistency with the 

motor vehicle emissions budget(s) must be 

contribute to a new violation or exacerbate 

an existing violation in the years before the 

last year of the maintenance plan; the interagency consultation process required by 

20.2.99.1 16 NMAC through 20.2.99.124 

NMAC shall determine what must be considered in order to make such a finding; 

(b) for years after the last year of 

the maintenance plan, emissions must be 

less than or equal to the maintenance plan's 

motor vehicle emissions budget(s) for the 

last year of the maintenance plan; [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 control 

strategy 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+ 

the 

-1 d 

motor 

However, 

submitted 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) If US 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. 

Consistency with the previously established 

motor vehicle emissions budget(s) must be 

demonstrated. If there are no previously 

approved 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 strategy 

implementation plan revision or maintenance plan was endorsed by the governor 

(or his or her designee) and was subject to a 

state public hearing; 

@) before the control strategy 

implementation plan or maintenance plan 

was submitted to US EPA, consultation 

among federal, state, and local agencies 

occurred; full implementation plan documentation was provided to US EPA; and US 

EPA's stated concerns, if any, were 

addressed; 

(c) the motor vehicle emissions 

budget(s) is clearly identified and precisely 

quantified; 

(d) the motor vehicle emissions 

budget(s), when considered together with 

all other emissions sources, is consistent 

with applicable requirements for reasonable 

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 

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

aware of any information that would indicate that emissions consistent with the 

motor vehicle emissions budget will cause 

or contribute to any new violation of any 

standard; increase the frequency or severity 

of any existing violation of any standard; or 

delay timely attainment of any standard or 

any required interim emission reductions or 

other milestones. 

- 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 ~lan submission 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) of Paraera~h (1 '1 of Subsection F 

( 

or Paraera~h (2) of Subsection F of 

p(f 

p 

the implementation plan submission; in all 

findinp to a finding of inadequacv under 

Paragraofh (1) of Subsection F of 

20.2.99.137 NMAC. such a findine will 

p, 

become effective immediatelv u~on the date 

fi 

&) if after EPA has found a subreconsider the adeauacv of that budget. US 

EPA will re~eat actions 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- 
/ September 30,2005 

values less (p 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 

0 

"action" scenario are not meater than the 

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 

X 

f 

NO2 nonattainment areas[- 

ecpew& 

1 

satisfiesthc p- 

-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 cri1 

terion mavbe met in PM2.5 nonattainment 

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 

notice 

tion ~lan: 

of 

(a) 

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 

AREAS WITHOUT 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. 

r 

B. Ozone areas. The 

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 ozone 

nonattainment 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 

"action" scenario 

(a) 

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)(71 if 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 are less 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 enforcing jurisdiction or the TCM is identified in the applicable implementation plan; 

(3) all travel demand management programs and transportation system 

management activities known to the MPO, 

but not included in the applicable 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. Projects not 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 10/3 1/02; 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 1 0 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[+] . a The regional emissions analysis must 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 

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 regional 

emissions 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 documenting that 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. 

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 "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 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 maintenance area 

demonstrates that those projects in the 

statewide transportation plan and statewide 

TIP which are in the nonattainment or maintenance area would still conform if the project were implemented (consistent with the 

requirements of 20.2.99.137 NMAC andlor 

20.2.99.138 NMAC for projects not from a 

conforming transportation plan and TIP). 

- C. Notwithstanding 

Subsections A and B of Section 20.2.99.140 

NMAC. in nonattainment and maintenance 

areas 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 

fi 

requirements of one of the follow in^ are 

NAAOS: 

(1) the project was included in the 

most recent conformitv determination for 

the transtheortation plan 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, 

1011 5/05] 

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 

fl 

that have not previouslv been required to 

- A. the effective date of US 

fi 

EPA's reclassification of an ozone or CO 

area population ereater than 200.000 to serious or above; 

fi 

& the official notice bv 

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 theem years 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, or project not in the 

first threemears of the currently conforming plan and TIP may 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 179 or 110(m)), the conformity status of the transportation plan and TIP 

shall lapse on the date that highway sanctions are imposed on the nonattainment area 

for such failure under Section 179(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 1013 1/02; 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 proition 

ect is not strictlv included in the transportaproject 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 if the 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 

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 
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, 101 15/05] 

[- 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 PM I0 nonattainment 

and maintenance areas with 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 of the proposed 

activities. 

/ Volume XVI, Number 18 / Sep 

[12/14/94; 1 1/23/98; 20.2.99.145 NMAC - 

Rn, 20 NMAC 2.99.145, 10/31/02; 

20.2.99.145 NMAC - Rn, 20.2.99.144 

NMAC, 1011 5/05] 

20.2.99.146 PROCEUDURES 

0 

FOR DETERMINING REGIONAL 

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 EMISSIONS ANALYSIS. 

A. [The] Conformity 

determinations for a new trans~ortation 

plan and/or TIP may be demonstrated to satisfy the requirements of Section 

20.2.99.137 NMAC ("Motor vehicle emissions budget") or Section 20.2.99.138 

NMAC ("Emission reductions in areas 

without motor vehicle emissions budgets") 

without new regional emissions analysis if 

the regional emissions analysis [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 

e] 

time 

previous 

of the [v 

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 funds to the project will not delay 

the implementation of projects in the transportation plan or TIP which are necessary to 

achieve the highway and transit system 

envisioned by the transportation plan, 

previous regional emissions analvsis is still 

consistent with the requirements of Section 

20.2.99.137NMAC (including that conformity to all currently applicable budgets 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 / September 30,2005 

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 at 

sites 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 are not 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 20.2.99.11 6 

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 shall 

include the entire project, and may be performed only after the major design features 

which will significantly impact concentrations have been identified. The future background concentration should be estimated 

by multiplying current background by the 

ratio of future to current traffic and the ratio 

of future to current emission factors. 

(3) Hot-spot analysis assumptions 

shall be consistent with those in the regional emissions analysis for those inputs which 

are required for both analyses. 

(4) PMlO or CO mitigation or 

control measures shall be assumed in the 

hot-spot analysis only where there are written commitments from the project sponsor 

or operator to implement such measures, as 

required by Subsection A of 20.2.99.148 

NMAC. 

(5) CO 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, 

1011 5/05] 

[- 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 in the absence of an MPO) and the 

US DOT may not infer additions to the 

budget(s) that are not explicitly intended by 

the implementation plan (or submission). 

Unless the implementation plan explicitly 

quantifies the amount by which motor vehicle emissions could be higher while still 

allowing a demonstration of compliance 

with the milestone, attainment, or maintenance requirement and explicitly states an 

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 that 

would be consistent with a required demonstration of an emissions reduction milestone; 

(2) either emissions from all 

sources will result in achieving attainment 

prior to the attainment deadline, 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 

&MHTES1 NMDOT 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; 11 123198; 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, 1011 5/05] 

1- 20.2.99.150 ENFORCEABILITY OF DESIGN CONCEPT AND 

SCOPE AND PROJECT-LEVEL MITIGATION AND CONTROL MEASURES. 

A. Prior to determining 

that a transportation project is in conformity, the MPO, other recipient of funds designated under title 23 U.S.C. or the federal 

transit laws, FHWA, or FTA must obtain 

from the project sponsor 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 to 

facilitate positive conformity determinations shall provide written contractual commitments and must comply with the obligations of such commitments. 

C. Written contractual 

commitments to mitigation or control measures shall be obtained prior to a positive 

conformity determination, and project sponsors must comply with such commitments. 

D. If the 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 so notifies the agencies involved in the interagency consultation process required under 20.2.99.11 6 

NMAC through 20.2.99.124 NMAC. The 

MPO (or [-] NMDOT in the 

absence of an MPO) and US DOT must find 

that the transportation plan and TIP still satisfy the applicable requirements of 

20.2.99.137 NMAC and 20.2.99.138 

NMAC and that the project still satisfies the 

requirements of 20.2.99.135 NMAC and 

therefore that the conformity determinations for the transportation plan, 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. A particular 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 training 
1024 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, 1011 5/05] 

[2O&W&@l 20.2.99.152 T R A F F I C 

SIGNAL SYNCHRONIZATION PROJECTS. Traffic signal synchronization 

projects may be approved, funded, and 

implemented without satisfying the requirements of this part. However, all subsequent 

regional emissions analyses required by 

20.2.99.137 NMAC and 20.2.99.138 

NMAC for transportation plans, TIPS, or 

projects not from a conforming plan and 

TIP must include such regionally significant 

traffic signal synchronization projects. 

[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 SIP requirements relating to conformity remain 

enforceable until the department revises its 

SIP to specifically remove them and that 

revision is approved by EPA. 

[20.2.99.154 NMAC - Rn, 20.2.99.151 

NMAC, 10/15/05] 

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 of the 

types listed in Table 3 of this section are 

exempt from regional emissions analysis 

requirements. The local effects of these 

projects with respect to CO or PMlO concentrations must be considered to determine 

if a hot-spot analysis is required prior to 

making a project-level conformity determination. These projects may then proceed to 

the project development process even in the 

absence of a conforming transportation plan 

and TIP. A particular action of the type listed in Table 3 (of this section) is not exempt 

from regional emissions analysis if the 

MPO in consultation with other agencies 

(e.g. the department, see Subsection C of 

20.2.99.120 NMAC), the US EPA, and the 

FHWA (in the case of a highway project) or 

the FTA (in the case of a transit project) 

concur that it has potential regional impacts 

for any reason. Table 3 follows. Table 3. 

Projects Exempt from Regional Emissions 

Analyses: 

(1) intersection channelization 

projects; 

(2) intersection signalization projects at individual intersections; 

(3) interchange reconfiguration 

projects; 

(4) changes in vertical and horizontal alignment; 

(5) truck size and weight inspection stations; 

(6) bus terminals and transfer 

points. 

[12/14/94; 1 1/23/98; 20.2.99.15 1 NMAC - 

t-rom 

5y 

y 

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 

1 

to particivate in the ~ilot vroerarn must 

of the pilot area's imvlementation plan revi- I cr 

are not covered bv the ~ilot area s I~D ,. 

~ 

le51.390. The alternative conformitv reauire- 

~e 

state and/or federal conformity reauirefi 

ments must be proposed to fulfill all of the 

lent to or better than Section 1761~) of the 

Clean Air Act. After the three-vear duration 

of the vilot vrogggf 

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 one permit 

or license for any one big game species during the current license year unless otherwise 

allowed by rule. 

B. Valid dates of license 

or permit: 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 a bid 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 or not helshe has previously held a license to hunt 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 

19.3 1.8 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. This restriction applies to 

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 of the 

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 as permitted 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 submit more 

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 19.3 1.3.8 

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 hisher deer 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 deer permit, the proper deer license and written permission. 

M. Handicapped fishing 

or handicapped general hunting license 

qualifications: To hold a handicapped 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 more physical 

disabilities resulting from amputation, 

arthritis, blindness, bum injury, cancer, 

cerebral palsy, cystic fibrosis, 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 or antelope license qualifications: To hold a 

[hm&eppk] mobilitv im~aired deer. elk 

-1 

or antelope license, [v 

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 

!mber 30,2005 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 have their 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 

eligible to 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 I license application R- shall supply the depart1 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 a Valencia 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 of Alcoholic 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 terms relating 

to Section 60-2B-3 NMSA 1978: as used 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 furnished by the [&pet+ 

-1 board: 

- B. 

Mexico gamine control board: 

[&I "cash operating fund" 

means the cash used by the licensee to start 

the bingo and jar 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 

does not 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 approved by 

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 is usually controlled by 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 consideration charged 

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 

or jar 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 alcoholic beverages may be 

served in the lounge only; 

[Fr] "prizes" means cash or 

merchandise awarded to the winner of 

bingo games, raffles or jar raffles; 

[€&I N_ "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, as required 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 of Alcoholic 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 shall be controlled by manufacturers' identification number and consecutive serial number as listed in "use of 

disposable bingo cards" of these rules and 

regulations. The exact number of specials 

or 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 REVISIONS TO TITLE 20, 

CHAPTER 2, PART 99 OF THE NO. EIB-05-03 (R) 

NEW MEXICO ADMINISTRATIVE CODE 

NOTICE OF TRANSCRIPT 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 for review 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) 243-501 8. 

Tb &%ua- 

~arbara Claire, Administrator 

Environmental Improvement Board 

Post Office Box 26 1 10 

Santa Fe, New Mexico 87502 

(505) 827-2425 P 

(505) 827-2836 F 

CERTIFICATE OF SERVICE 

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 261 10 

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 5 5 

1 

1 

. . 

KATHY TOWNSEND COURT REPORTERS 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - Fax (505) 243-3606 
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. . . 

KATHY TOWNSEND COURT REPORTERS 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - 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 

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(505) 243-5018 - Fax (505) 243-3606 
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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, I 

L 

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. 

. . 

KATHY TOWNSEND COURT REPORTERS 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - Fax (505) 243-3606 
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 

. '. 

KATHY TOWNSEND COURT REPORTERS 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - 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. 

KATHY TOWNSEND COURT REPORTERS 

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(505) 243-5018 - Fax (505) 243-3606 
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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 EPA1s published 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 
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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,!^ . . 

KATHY TOWNSEND COURT REPORTERS 

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(505) 243-5018 - Fax (505) 243-3606 
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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 

KATHY TOWNSEND COURT REPORTERS 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - Fax (505) 243-3606 
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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 

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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 . , 

KATHY TOWNSEND COURT REPORTERS 

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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. . '. 

KATHY TOWNSEND COURT REPORTERS 

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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,.. . \ 

KATHY TOWNSEND COURT REPORTERS 

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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'. . '. 

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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. I 

i 

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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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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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 .'. 

I \ 

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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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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. I 

i 

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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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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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. 1 

1 

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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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 ". 

. , 

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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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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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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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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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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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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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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 

. . 

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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? .. 

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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 . . 

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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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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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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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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 '. 

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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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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 . '. 

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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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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.". . '. 

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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 I 

i 

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 ', 

, '. 

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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 -. 

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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 

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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.) 

. '. 

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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 

, 

<. 

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