## UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 6
MULTIMEDIA PLANNING AND PERMITTING DIVISION 1445 ROSS AVENUE, SUITE 1200 DALLAS, TX 75202-2733

DATE: April 14, 2010

SUBJECT: Technical Review of the Part 99 (Conformity to the State Implementation Plan of Transportation Plans, Programs, and Projects) Revisions Submitted by the State of New Mexico in November of 2006, June of 2007, and May of 2009.

FROM: Jeff Riley Air Planning Section, 6PD-L

TO: Files

THROUGH: Guy Donaldson, Chief Air Planning Section, 6PD-L

Background

On November 2, 2006, the State of New Mexico submitted revisions to the New Mexico Administrative Code (NMAC) 20.2.99 to ensure consistency with amendments to the federal Transportation Conformity Rule. On June 27, 2007, and May 13, 2009, the state submitted further revisions to NMAC 20.2.99 for consistency with subsequent federal rule revisions.
These revisions are discussed in detail below.

The most recent approval by EPA of transportation conformity regulations for the State of New Mexico occurred on March 20, 2000 (65 FR 14877). This approval was a partial approval, with no action taken on sections 109.C.1, 114, 128.C-F, 137.E, 139.A.2, 140.A.1, and 147.B. The regulations submitted by the State were based on the transportation conformity rule promulgated on August 15, 1997. However, on March 2, 1999, the United States Court of Appeals for the District of Columbia Circuit issued its opinion in Environmental Defense Fund v. Environmental Protection Agency , 167 F.3d 641 (D.C. Cir. 1999). The Court granted the environmental group’s petition for review and ruled that 40 CFR 93.102(c)(1), 40 CFR 93.121(a)(1), and 40 CFR 93.124(b) are unlawful, and remanded 40 CFR 93.118(e) and 40 CFR 93.120(a)(2) to EPA for revision to harmonize these provisions with the requirements of the Act for an affirmative determination the federal actions will not cause or increase violations or delay attainment.

Since the States were required to submit transportation conformity SIPs not later than August 15, 1998, and include those provisions in verbatim fo rm, the State’s SIP revision included all of those sections which the Court ruled unlawful or remanded for consistency with the Act. EPA revised the Federal Rule on August 6, 2002 (67 FR 50808) and July 1, 2004 (69 FR 40004) in response to the Court decision, and the State of New Mexico’s November 2, 2006 submittal was intended to reflect these revisions and address the sections in question.

## - 2 - Analysis of the State’s Submittals

The following tables provide a comparison of revisions made to NMAC 20.2.99 and the corresponding sections in 40 CFR Part 93. An e xplanation of each revision is also provided.



# Table 1: November 2, 2006, Submittal

TYPE OF AREA ISSUE ADDRESSED IN FINAL

RULE PART 93

FEDERAL
REGULATORY
SECTION PART 99 NEW
MEXICO
REGULATORY
SECTION

8-Hour Ozone
National Ambient
Air Quality Standard 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. 

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

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

## Sec. 119(b) Sec. 138(B)

Build, No-Build Test (Lower classifications) -
The federal rule is amended to create the "buildno-greater-than-no-build" test, where conformity is demonstr ated 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") 

## Sec. 119(b)(2); Sec. 119(g)(2) Sec. 138(B)(2); Sec. 138(G)(2)

Regional Conformity Tests Moderate and Above Classifications (H igher Classifications) - Ozone areas of higher nonattainment
classifications must meet both the build-lessthan-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 

## Sec. 119(b)(1) Sec. 138(B)(1)

## - 3 - was the first of three options proposed for regional emissions analyses before adequate or approved SIP budgets are established. 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 1-hour
ozone nonattainment areas that never submitted a control strategy SIP or maintenance plan with approved or adequate budgets. A regional emissions analysis is th e part of a conformity
determination that assesses whether the emissions produced by transportation activities are consistent with state, local, and federal air quality goals. 

## Sec. 109(d) Sec. 128(D)

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. 

## Sec. 109(e) Sec. 128(E)

Definitions - 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 clanfy EPA's original intent and current implementation of the existing conformity rule. 

## Sec. 101 Sec. 7

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 insignificant. 

## Sec. 109(k); Sec.l2l(c) Sec. 128(K); Sec. 140(C)

Transportation plan a nd 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 

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

## - 4 - (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

 Effective date of EPA’s action that initially designates an area as a serious or above ozone
nonattainment area. 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 (STP) which includes projects planned for the isolated
rural nonattainment or maintenance area before the projects can be approved. 

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

PM2.5 National Ambient Air Quality
Standard Applicability - This revision includes PM2.5 as a criteria pollutant that is regulated under Part 99 for transportation conformity purposes 

## Sec. 102(B)(1) Sec. 2(B)

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 PM2.5 to Sec. 

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

## - 5 - 109(D) of the conformity rule even though the grace period is already available to all newly designated
nonattainment areas as a matter of law. 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 from the proposed transportation system are either less than or no greater than 2002 motor vehicle emissions in a given area. 

## Sec. 119(b) Sec. 138(B)

Build/No-Build Test (Lower classifications) - As with the 8-hour ozone standard, EPA is revising the build/no-build test for certain existing
and new nonattaininent areas. Specifically, the final rule amends Sec.138 to create the "build-no-greater-than-nobuild" 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-greaterthan-no-build test is available to
all PM2.5 areas. 

## Sec. 119(e); Sec. 119(g)(2) Sec. 138(E); Sec. 138(G)(2)

Regional Conformity Tests in PM2.5 Areas - EPA requires that the budget test be used to complete a regional emissions analysis once a PM2.5 SIP is submitted with budget(s) that EPA has found adequate or approved. PM2.5
nonattainrnent areas must meet one of the following interim emissions tests for conformity determinations conducted before adequate or approved PM2.5 SIP budgets are established:

 The build-no-greater-than-no-build test, or

 The no-greater-than-2002 emissions test 

## Sec. 109(i) Sec. 128(I)

Re-entrained Road Dust in PM2.5 Regional Emissions Analyses – re-entrained road dust will only be included in regional emissions analyses if the EPA Regional Administrator orstate air quality agency determines that reentrained road dust is a significant contributor to the PM2.5 regional air quality problem. Inother words, PM2.5 areas can presume that reentrained road dust is not a significant
contributor and not include road dust in PM2.5 transportation conformity analyses prior to the SIP, unless EPA or the state finds road dust significant. Re-entrained road dust is granular material released into the atmosphere as a result of motor vehicle activity on paved and unpaved roads. 

## Sec. 102(b)(3); Sec. 119(f) Sec. 2(D); Sec. 138(F)

Construction-Related Fugitive Dust in PM2.5Regional Emissions Analyses - Constructionrelated fugitive dust from highway or transit projects are included in regional emissions 

## Sec. 122(f) Sec. 146

## - 6 - analyses for PM2.5 nonattainment and maintenance areas only if the SIP identifies construction dust as a significant contributor tothe regional air quality problem. ConstructionreIated fugitive 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. Compliance With PM2.5 SIP Control Measures - The rule requires that Federal Highway Administration (FHW A) 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 final rule, FHWA and FTA would assure implementation of a required control or mitigation measure by obtaining enforceable written commitments from the project sponsor and/or 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 final plans, specifications and estimates for the project. 

## Sec. 117 Sec. 136

Definitions - 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 clanfy EPA's original intent and current implementation of the existing conformity rule. 

## Sec. 101 Sec. 7

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 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 insignificant. 

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

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 

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

## - 7 - 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.


### 1-Hour Ozone
National Ambient Air Quality Standard Build/ No-Build Test (Lower classifications) -
The federal rule is amended to create the "buildno-greater-than-no-build" test, where conformity is demonstr ated 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:

 1-hour ozone areas of marginal and
below classifications. 

## Sec. 119(b)(2); Sec. 119(g)(2) Sec. 138(B)(2); Sec. 138(G)(2)

Regional Conformity Tests Moderate and Above Classifications (H igher classifications) - Ozone areas of higher nonattainment
classifications must meet both the build-lessthan-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 first of three options proposed for regional emissions analyses before adequate or approved SIP budgets are established. 

## Sec. 119(b)(1) Sec. 138(B)(1)

Definitions - Clarify the conformity rule's definitions for "control strategy implementation plan revision","milest one," "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. 

## Sec. 101 Sec. 7

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 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 insignificant. 

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

Limited Maintenance Plans – These revisions 

## Sec. 101; Sec. 

## 7(Z);

## - 8 - 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 significantly below a standard to request redesignation through a more streamlined maintenance plan. 

## Sec. 109(j); Sec. 121(c) Sec. 128(J); Sec. 140(C)

Transportation plan a nd 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. 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 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. 

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

Non-Federal Projects (For Isolated Rural Areas Only) - This is a minor clarification to Sec. 

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

## - 9 - 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 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. Clarification to Use of Approved Budgets in Conformity - A clarification to the November 5, 2003 final 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 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 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. 109(c) Sec. 128(C)

PM10 National Ambient Air Quality
Standard Build No-Build Test (Lower classifications) - As with the PM 2.5 standard, EPA is revising the build/no-build test for certain existing and new nonattainment areas. Specifically, the final
rule amends Sec. 138 to create the "build-nogreater-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 emissionsfrom the existing transportation system ("nobuild" or "baseline" scenario. The build-nogreater-than-no-build test is available to all

PM10 areas. 

## Sec. 199(d); Sec. 119(g)(2) Sec. 138(D); Sec. 138(G)(2)

Clarification to Precursors – These revisions clarify the list of PM10 precursors in c. Sec. 2(C)(3) and 138(f)(5) of Part 99. Under the revised Sec. 2(C)(3), only VOC and NOx are identified as PM10 precursors; i.e., PM10 is deleted from the list of PM10 precursors in this paragraph. The revisions to Sec. 138(f)(5) provide consistency with other pollutants and precursors discussed in this paragraph. Neither of these rule changes wilI affect conformity
determinations in PM10 nonattainment and
maintenance areas. 

### Sec. 109(b)(2)(iii); 

## Sec. 119(f)(5) Sec. 2(C)(3); Sec. 138(F)(5)

Definitions - Clarify the conformity rule's definitions for "control strategy implementation 

## Sec. 101 Sec. 7

## - 10 - 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. 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 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 insignificant. 

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

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 significantly below a standard to request redesignation through a more streamlined maintenance plan. 

## Sec. 101; Sec. 109(j); Sec. 121(c) Sec. 7(Z); Sec. 128(J); Sec. 140(C)

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 (STP) which includes projects planned for the isolated
rural nonattainment or maintenance area before the projects can be approved. 

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

Clarification to Use of Approved Budgets in Conformity - A clarification to the November 5, 2003 final 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 EPA’s approval of such a budget in the Federal Register, or 

## Sec. 109(g) Sec. 128(G)

## - 11 -  The effective date of EPA1s approval of such a budget in the Federal Register, if the approval is completed through direct final rulemaking.

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.


### CO National Ambient Air Quality
Standard Build/No-Build Test (Lower classifications) -
The federal rule is amended to create the "buildno-greater-than-no-build" test, where conformity is demonstr ated 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:

 CO areas of moderate classification with design values less than 12.7 ppm, and



##  Not classified CO areas. 

## Sec. 119(c); Sec. 119(g)(2) Sec. 138(C); Sec. 138(G)(2)

Regional Conformity Tests Moderate and Above Classifications (H igher Classifications) - CO 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 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. 

## Sec. 119(c)l Sec. 138(C)1

Definitions – 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 defjnitions 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. 

## Sec. 101 Sec. 7

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 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 

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

## - 12 - insignificant.

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 significantly below a standard to request redesignation through a more streamlined maintenance plan. 

## Sec. 101; Sec. 109(j); Sec. 121(c) Sec. 

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

Transportation plan a nd 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:

 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.

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. 125(B) 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. 

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

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 

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

## - 13 - 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 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 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 fina1 rulemaking.

Under this final rule change, the budget would be used in any conformity
determination conducted after the fxst
time one of these three EPA actions

occurs 

## Sec. 109(f) Sec. 128(f)

NOx National Ambient Air Quality
Standard Build/ No-Build Test (Lower classifications) -
The federal rule is amended to create the "buildno-greater-than-no-build" test, where conformity is demonstr ated 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. 

## Sec. 119(d); Sec. 119(g)(2) Sec. 138(D); Sec. 138(G)(2)

Definitions - 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. 

## Sec. 101 Sec. 

## 7

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 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 

## Sec. 121(c) Sec. 140(C)

## - 14 - 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. 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. 121(b)(l) Sec. 140(B)(1)

Clarification to Use of Approved Budgets in Conformity – A clarification to the November 5, 2003 final 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 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 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. 109(h) Sec. 128(h)

Miscellaneous
Revisions Federal Projects - final rule modifies Sec. 109(C) of the Part 99 so that no new federalapprovals or funding commitments for nonexempt projects can occur during a transportation conformity lapse. A conformity lapse generally occurs if transportation plan and TIP conformity determinations are not made within specified time frames. 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 ne w federal approvals or funding commitments for subsequent or new project phases can be made during the lapse. 

## Sec. 102(c) Sec. 109(C)

## - 15 - Determining Vehicle Em issions Budgets From Submitted SIPS Adequate – The final rule modified several provisions under Sec. 128 and 137 of Part 99 to specify that EPA must affirmatively find submitted budgets adequate before they can be used in a conformity
determination. The final 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. 128 and 137(E) that required areas to use budgets from submitted SIPs 45 days after submission unless EPA had found them inadequate. Instead, today's rule stipulates that before a budget from a SIP
submission can be used in conformity, EPA must find it adequate using the criteria in Sec. 137(E)(4). 

## Sec. 109; Sec. 118(e) Sec. 128; Sec. 137(E)

General Description of the Vehicle Emissions Budgets Adequacy Process - The final rule adds a new provision, Sec. 137(F), to the conformity rule that provides the basic framework of the adequacy process. The new Sec. 137(F) generally reflects EPA's existing adequacy process as proposed in the June 30, 2003 rulemaking 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. 

## Sec. 118(f) Sec. 137(F)

Vehicle Emissions Budgets Adequacy Reviews Through the SIP Process – This revision finalizing procedures for conducting adequacy reviews and making adequacy findings through the SIP approval process in Sec. 137(F)(2). 

## Sec. 118(f)(2) Sec. 137(F)(2)

Non-Federal Projects - A minor change amending Sec. 140(A) of th e conformity rule so that regionally sigmficant nonfederal projects can no longer be advanced during a conformity lapse unless they have received all necessarystate and local approvals prior to the lapse. Nonfederal projects are projects that are funded 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 a pprovals. Under this final rule, recipients of federal funds cannotadopt or approve a regionally significant, nonfederal 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. 

## Sec. 121(a) Sec. 140(A)

Safety Margins - Sec. 149(B) of the 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 

## Sec. 124(b) Sec. 149(B)

## - 16 - 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 conformity 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. 113(C)(4) that required an MPO and DOT to determine conformity of the TIP within six
months of the date that DOT determined conformity of the transportation plan. Finalizing several rule revisions to streamline Sec. 115 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. 115(A) is no longer relevant for any area. Finalizing two revisions to Sec. 115, which requires a conformity determinati on within 18-months of EPA's approval of a SIP. The first is specifying 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. 115(B) will require a conformity determination only when a conformity determination has not already been made using that same budget in the newly approved SIP. 

## Sec. 104(c)(4); Sec. 104(e) Sec. 113(D);
Sec. 115

Latest Planning Assump tions - 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. 

## Sec. 110(a) Sec. 129(A)

Horizon Years for Hot-Spot Analyses - The revision clarifies Sec. 135 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. 

## Sec. 116 Sec. 135

Relying on a Previous Regional Emissions Analysis - finalizing three revisions to Sec. 147, which describes when an area can rely on a previous regional 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 

## Sec. 112(g) Sec. 147

## - 17 - transportation plan revisions. Second revision adds Sec. 147(C) to clar ify that a conformity determination that relies on a previous analysis does not satisfy the three-year frequency requirement for plans and TIPs. Third revision adds Sec. 147(A)(4) and amends Sec. 147(B) to clarify that conformity determinations that rely on a previous regional emissions analysis must be based on all adequate and approved SIP budgets that apply at the time that DOT makes its conformity determination. Budget Test Requirements for the Attainment Year – Revision clarifying how Sec. 137(B) and (D) should be implemen ted when a budget is established for a year prior to the attainment year (e.g., a reasonable further progress budget). Specifically, amending Sec. 137 (B) 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 frame of the transportation plan. 

## Sec. 118(d) Sec. 137(D)

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 clarifying 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 frame of the transportation plan. The second revision is adding Sec. 137(B)(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). 

### Sec. 118(b)(2)(iii); Sec. 118(b)(2)(iv) Sec. 137(B)(2)(c) ; Sec. 137(B)(2)(d)

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-of-way 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. 151 has been amended to make the conformity rule fully consistent with DOT's December 1999 rulemaking. 

## Sec. 126 Sec. 151



# Table 2: June 27, 2007, Submittal

REVISION ISSUE ADDRESSED IN FINAL

RULE PART 93

FEDERAL
REGULATORY
SECTION PART 99 NEW
MEXICO
REGULATORY
SECTION

PM2.5 Precursors May 6, 2005 revisions The scope of the regulation to include the following pollutants:

 NOX in PM2.5 areas, unless both the EPA 

### Sec. 102(b)(2)(ii) 

## Sec. 2(c)

## - 18 - Regional Administrator and the director of the state air agency have made a finding that transportation related emissions of NOX within the nonattainment area are not a significant
contributor to the PM2.5 nonattainment problem, and

 VOC, SOX and/or NH3 in PM2.5 areas either if the EPA Regional Administrator or the director of the state air agency has made a finding that transportation-related emissions of any of these precursors within the nonattainment area are a significant contributor to the PM2.5 nonattainment problem.

The reference 49 CFR 7.95 to read 49 CFR 7.43.
This is a technical correction which is the result of Federal Department of Transportations (DOT) July 16, 1998, final rule that changed the citation of the transportation planning fee schedule provision (63 FR 38331). 

## Sec. 105(e) Sec. 124(A)

The criteria and procedures for interim
emissions in areas that do not have motor vehicle emission budgets to include the following pollutants:

 NOX in PM2.5 areas, unless both the EPA Regional Administrator and the director of the state air agency have made a finding that transportation related emissions of NOX within the nonattainment area are not a significant
contributor to the PM2.5 nonattainment problem, and

 VOC, SOX and/or NH3in PM2.5 areas either if the EPA Regional Administrator or the director of the state air agency has made a finding that transportation-related emissions of any of these precursors within the nonattainment area are a significant contributor to the PM2.5 nonattainment problem. 

## Sec. 119(f) Sec. 138(F)

PM2.5 Hot Spot March 10, 2006
revisions The definition for Hot-spot analysis to include the pollutant PM2.5. 

## Sec. 101 Sec. 6(V)

The conformity criteria for general transportation plans, programs and projects to include the pollutant PM2.5 for hot-spot analyses. 

## Sec. 109(b) Sec. 128(B)

The criteria and procedures for PM2.5
nonattainment and maintenance areas to include the following paragraph:

 Federal Highway Admi nistration/Federal Transit Administration projects in PM2.5 nonattainment or maintenance areas must satisfy the appropriate hot-spot test required by
Subsection A of Section 20.2.99.135 NMAC (Criteria and Procedures – Localized CO, PM10, and PM2.5 Violations (HOT SPOTS). 

## Sec. 109(i) Sec.128(I)

The criteria for limited maintenance plans to include the pollutant PM2.5 for hot-spot analyses. 

## Sec. 109(j) Sec. 128(J)

The conformity criteria for areas with insignificant motor vehicle emissions to include the pollutant PM2.5 for hot-spot analyses. 

## Sec.109(k) Sec. 128(K)

The conformity criteria for Isolated rural
nonattainment and maintenance areas to include 

## Sec. 109(l) Sec. 128(L)

## - 19 - the pollutant PM2.5 for hot-spot analyses. The section heading to include the pollutant PM2.5 criteria and procedures:



##  Localized CO, PM10, and PM2.5 Violations (Hot-spots). 

## Sec. 116 Sec. 135

Include the pollutant PM2.5 for hotspot analysis. Establishes which transportation project will require a hot-spot analysis. 

## Sec. 116(a) Sec.135(A)

Typographical error correction from last regulation revision. Ch anged Section reference
20.2.99.146 to 20.2.99.148. 

## Sec. 135(A)

The section heading to include the pollutant

PM2.5

 Procedures for Determining Localized CO, PM10 and PM2.5 Concentrations (Hot-Spot Analysis). 

## Sec. 123 Sec. 148

The subsection heading to include the pollutant

PM2.5. 

## Sec. 123(b) Sec.148(B)

Clarification of which transportation projects are required to perform a hot-spot analysis for

PM10 or PM2.5. 

## Sec. 123(b)(1) Sec148(B)(1)

Clarification of which transportation projects are required to perform a qualitative analysis. 

## Sec. 123(b)(2) Sec. 148(B)(2)

Changing the paragraph to allow the US DOT, in consultation with EPA, the flexibility to make categorical hot-spot findings to further streamline analysis requirements when modeling shows that additional analyses are not necessary to meet Clean Air Act requirements for a given project. 

## Sec. 123(b)(3) Sec. 148(B)(3)

Including the pollutant PM2.5 for mitigation and control measures in hot-spot analyses. 

## Sec. 123(c)(4) Sec. 148(C)(4)

Including the pollutant PM2.5 for construction related hot-spot analyses. 

## Sec. 123(c)(5) Sec. 148(C)(5)

Including the pollutant PM2.5 for mitigation and
control measures as iden tified as conditions of the National Environmental Policy Act process. 

## Sec. 125(a) Sec. 150(A)

Including the pollutant PM2.5 under exempt projects for mass transit projects. 

## Sec. 126(b)(1) Sec. 151(A)(2)

Typographical error correction from last regulation revision. Ch anged Code of Federal Regulation reference 23 CFR 710.204d to 23

CFR 710.503. 

### Sec. 151(A)(4)(d)

Removal of the pollutant PM10 from the second
sentence and inclusion of follow sentence:

 The local effects of projects with respect to
PM10 and PM2.5 concentrations must be considered and a hot-spot analysis performed prior to making a project-level conformity determination, if a project in Table 3 also meets the criteria of Paragraph (1) of Subsection B of
Section 20.2.99.148 NMAC. 

## Sec. 127 Sec. 151(B)



# Table 3: May 13, 2009, Submittal

REVISION ISSUE ADDRESSED IN FINAL

RULE PART 93

FEDERAL
REGULATORY PART 99 NEW
MEXICO
REGULATORY

## - 20 - SECTION SECTION
Revised the definitions for Metropolitan Planning Organization (MPO)

 Make rule consistent with SAFETEA-LU 

## Sec. 101 Sec. 7(AC);

Revised the first sentence of the definition for Transportation Control Measure (TCM) to clarify that TCMs as defined for conformity purposes also include any TCMs that are incorporated into the SIP through this new TCM substitution and addition process.

 Make rule consistent with SAFETEA-LU 

## Sec. 101 Sec. 7(AU);

Revised the definitions for Transportation Improvement Program (TIP). 

## Sec. 101 Sec. 7(AV);

Removed “sulfur oxides (SOX)” and added in its place “sulfur dioxide (SO2)”



##  To make rule consistent with EPA’s PM2.5 Implementation Rule Sec. 102(b)(2)(v); 119(f)(10) Sec. 2(C)(5); 138(F)(10)

Removed “for 20 years from the date EPA approves the area’s request under section 107(d) of the CAA for redesignation to attainment” and adding in its place “through the last year of a maintenance area’s approved CAA section 175A(b) maintenance plan”.



##  EPA revised this section to ensure that conformity would apply in maintenance areas through the entire 20 years of their approved Clean Air Act section 175A(b) maintenance plan, unless the applicable implementation plan specifies that conformity would continue to apply beyond the end of that maintenance plan. 

## Sec. 102(b)(4) Sec. 2(E)

Revised to require that the MPO and DOT determine conformity of a transportation plan at least every four years.



##  Make rule consistent with SAFETEA-LU 

## Sec. 104(b) Sec. 112(B); 112(C)

Revised to require that the MPO and DOT determine conformity of a transportation improvement program (TIP ) at least every four

years.

 Make rule consistent with SAFETEA-LU 

## Sec. 104(c) Sec. 113

Revised to require a new transportation plan and TIP conformity determination to be made after
actions that establish a new motor vehicle emissions budget for conf ormity, also known as “triggers”



##  Make rule consistent with SAFETEA-LU 

## Sec. 104(e) Sec. 115

New provision included to provide the allowances for projects to meet conformity requirements during the lapse grace period.



##  Make rule consistent with SAFETEA-LU 

## Sec. 104(f) Sec. 111(B)

Changed “revision(s)” to “amendment(s)”

 Make rule consistent with the revised planning definitions in DOT’s February 14, 2007, final transportation planning regulations (72 FR 7224). 

## Sec. 105(c) Sec. 122

Removed the reference “23 CFR 450.316(b)” replacing it with “23 CFR 450.316(a)”

 Make rule consistent with the revised planning definitions in DOT’s February 14, 2009, final transportation planning regulations (72 FR 7224). 

## Sec. 105(e) Sec. 124(A)

## - 21 - Section renamed as “Content of transportation plans and timeframe of conformity determination”;

 Make rule consistent with SAFETEA-LU 

## Sec. 106 Sec. 125

Amended to update the horizon years that apply when an area shortens the conformity
timeframe.

 Make rule consistent with SAFETEA-LU 

## Sec. 106(a) Sec. 125(A)(1)

Include regulatory provisions to provide the rules for shortening the conformity timeframe

 Make rule consistent with SAFETEA-LU 

## Sec. 106(d) Sec. 125(D)

Removed provision of the transportation conformity rule that was vacated by the U.S. Court of Appeals for the District of Columbia Circuit ( Environmental Defense v. EPA, et al.,
D.C. Cir. No. 04-1291 )

 This provision allowed 8-hour ozone areas to use the interim emissions test(s) for conformity determinations instead of 1-hour ozone SIP budgets where the interim emissions test(s) was determined to be more appropriate to meet Clean Air Act requirements. The court vacated this provision and remanded it to EPA. 

## Sec. 109(e) Sec. 128(E)

Included language to ensure that hot-spot analyses in isolated rural areas examine a project’s air quality impact over the timeframe of the long-range statewide transportation plan. 

## Sec. 109(l) Sec. 128(L)

Requires that there be a currently conforming transportation plan and TIP at the time of project approval, except during the lapse grace period, when a non-exempt project must come from the most recent conforming transportation plan and

TIP.

 Make rule consistent with SAFETEA-LU 

## Sec. 114 Sec. 133

Requires that regionally significant non-Federal projects either come from the currently conforming transportation plan and TIP, or the regional emissions analysis that supports such a transportation plan and TIP, except during the lapse grace period.

 Make rule consistent with SAFETEA-LU 

## Sec. 121 Sec. 140(A)(1)

Revised to allow DOT, in consultation with EPA, to make categorical hot-spot findings for appropriate cases in CO nonattainment and maintenance areas if appropriate modeling shows that a type of highway or transit project
does not cause or contribute to a new or worsened local air quality violation of the CO
standards. 

## Sec. 123(a)(3) Sec. 148(A)(3)

Revised to require PM2.5 or PM10 hot-spot analyses to be completed for “New highway projects that have a significant number of diesel vehicles, and expanded projects that have a significant increase in the number of diesel vehicles”. The prior language stated “New or expanded highway projects that have a significant number of or significant increase in
diesel vehicles”.

 Incorporated as a technical clarification to address some confusion since the promulgation of the March 10, 2006 conformity rule (71 FR 12468). 

## Sec. 123(b)(1) Sec. 148(B)(1)

## - 22 - Revised to update the following terms: “Hazard elimination program” is now “Projects that correct, improve, or eliminate a hazardous location or feature”; “Safety improvement program” is now “Highway Safety Improvement Program Implementation”; and “Pavement marking dem onstration” is now “Pavement marking”.

 EPA is updating these te rms to make them consistent with the terms in 23 U.S.C. 148, which has been amended by SAFETEA-LU 

## Sec. 126 Sec. 151(A)(1)

Table 4 provides a summary of all specific sec tions that were revised by the State of New Mexico in each submittal. EPA is approving entire sections as submitted by New Mexico, since the submittals include entire sections containing any revisions being made. Where sections were repeated in subsequent revisions, the more recent revisions are taken to supersede the previous revisions, since the more recent language captures the previous revisions. Table 5 represents the sections that EPA will approve with this action, sorted by date of submittal.



# Table 4 – Revisions to NMAC 20.2.99 (by submittal date)

NMAC 20.2.99 Section Submittal Date to EPA 2(B), 2(C)(3), 2(C)(3)(a), 2(C)(3)(b), 2(D), 2(E), 7(A)-(BA), 109(A)(1)(a)-(b), 109(C), 109(D), 112(A)-(C), 113(A)-(C), 114(A)-(C), 115, 115(A)- (C), 116(B), 116(C), 116(C)(1)(c), 116(C)(2)(a), 116(D)(c)-(d), 117(B)(6), 117(C), 117(C)(5), 118(B), 118(C), 120(A)-(D), 120(E)(2), 120(F), 120(H)-(J), 120(L)-(M), 121(A)-(C), 121(D)(1)-(3), 122, 123(B)-(D), 125(B), 125(B)(1)-(3), 128(B), 128(B)(2)(b), 128(B)(3)(b), 128(B)(4)(d), 128(B)(5)(d)-(e), 128(C), 128(C)(1), 128(C)(1)(a)- (c), 128(C)(2), 128(C)(2)(a)-(b), 128(C)(3), 128(C)(4), 128(C)(4)(a)-(b), 128(C)(5), 128(C)(5)(a)-(c), 128(D)-(E), 128(F), 128(F)(2), 128(F)(2)(a)-(c), 128(F)(3), 128(F)(4)(a)-(b), 128(G), 128(G)(2), 128(G)(2)(a)-(c), 128(G)(3), 128(G)(3)(a)-(b), 128(H), 128(H)(1), 128(H)(1)(a)- (c), 128(H)(2), 128(I)-(K), 128(L), 128(L)(2), 128(L)(2)(b)(ii), 128(L)(2)(c), 129(A), 135(A)-(B), 136, 137(A), 137(B), 137(B)(2)(c)-(d), 137(D)(1), 137(E)(1)-(3), 137(E)(4)(f), 137(F), 137(F)(1)-(2), 138, 138(A)-(C), 138(D), 138(D)(1), 138(E), 138(E)(1)-(2), 138(F), 138(F)(5), 138(F)(7)-(8), 138(G), 138(G)-(J), 139(A)(2), 140(A)(1)-(3), 140(B)(1), 140(C), 140(C)(1)-(2), 143, 143(A)-(C), 144, 145, 146, 146(A)-(B), 147, 147(A)-(C), 148, 11/2/2006

## - 23 - 149, 149(A)-(D), 150, 150(D), 151, 151(A), 151(A)(4)(d), 152, 153, 154. 2(C)(4), 2(C)(5), 7(V), 124(A), 128(B)(4), 128(B)(5), 128(I)(1), 128(I)(2), 128(I)(3), 128(J), 128(K), 128(L)(1), 135, 135(A), 138(F)(9), 138(F)(10), 148, 148(B), 148(B)(1)(a)-(e), 148(B)(2), 148(B)(3), 148(C)(4), 148(C)(5), 150(A), 151(A)(2), 151(A)(4)(d), 151(B). 6/27/2007

2(C)(5), 2(E), 7(AC), 7(AU), 7(AV), 111(A), 111(B), 112(B), 112(C), 113(C), 115, 122, 124(A), 125, 125(A)(1), 125(D), 128(E)(2), 128(E)(2)(e), 128(L)(2)(a), 133, 134, 134(E), 135(A), 135(B), 137(B), 137(D)(2), 137(D)(3), 138(F)(10), 138(G)(3), 139(A)(2), 140(A)(1), 140(A)(2), 148(A)(3), 148(B)(1)(a), 151(A)(1)(b), 151(A)(1)(f), and 151(A)(1)(k). 5/13/2009



# Table 5 –Revisions to NMAC 20.2.99, Sections Being Approved by EPA (by submittal date)

NMAC 20.2.99 Section Submittal Date to EPA
109, 114, 116, 117, 118, 120, 121, 123, 129, 136, 143, 144, 145, 146, 147, 149, 152, 153, 154 11/2/2006

150 6/27/2007 2, 7, 111, 112, 113, 115, 122, 124, 125, 128, 133, 134, 135, 137, 138, 139, 140, 148, 151 5/13/2009



## EPA Conclusion and Recommendation

I recommend approval of revisions to the New Mexico SIP and associated rules which were submitted by NMED on November 2, 2006, June 27, 2007, and May 13, 2009. I have reviewed these rules and find these revisions achieve the purpose of bringing the state SIP and associated rules into alignment with federal statutes and regulations. We have evaluated the State’s submittals and have determined that they meet the applicable requirements of the Clean Air Act and EPA regulations, and are consistent with EPA policy.