ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-0AR-2005-NM-0007; FRL -

_ 

### Approval and Promulgation ofAir Quality Implementation Plans; New Mexico; Transportation Conformity Requirement for Bernalillo County

AGENCY: Environmental Protection Agency (EPA).



### ACTION: Direct final rule.



### SUMMARY: EPA is taking direct final action approving a State Implementation Plan (SIP) revision submitted by the Governor ofNew Mexico on December4,2008 on behalfofthe Albuquerque Environmental Health Department (AEHD). This revision serves to incorporate

recent changes to the Federal conformity rule into the state conformity SIP for Bernalillo County, and supersedes previous revisions submitted by the Governor ofNew Mexico on May 15,2003 and August 4,2005. EPA is approving the December 4,2008 revision in accordance with the requirements ofthe Federal Clean Air Act (CAA).



### DATES: This rule is effective on 

### [Insert date 60 

### days from date ofpublication in the Federal Register] without further notice, unless EPA receives relevant adverse commentby 

### [Insert date 30 

### days from date ofpublication in the Federal Register). IfEPA receives such comment, EPA will publish a timely withdrawal in the 

### Federal Register informing the public that this rule will not take effect.2 ADDRESSES: Submityour comments, identified by DocketNo. EPA-R06-0AR-2005-NM0007, by one ofthe following methods: Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments. EPA Region 6 "Contact Us" web site: http://epa.gov/region6/r6coment.htm. Please click

on "6PD" (Multimedia) and select "Air" before submitting comments. E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please also send a copy by email to the person listed in the FOR FURTHER INFORMATION CONTACT section below. Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), at fax number 214-665- 7263. Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202- 2733. Such deliveries are accepted only between the hours of8:00am and 4:00pm weekdays except for legal holidays. Special arrangements should be made for deliveries ofboxed information. Instructions: Direct your comments to Docket ID No. EPA-R06-0AR-2005-NM-0007. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit3 information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov website is an "anonymous access" system, which means EPA will not know your identity or contact information unless you provide it in the body ofyour comment. Ifyou send an e-mail comment directly to EPA without going through www.regulations.gov your e-mail address will be automatically captured and included as part of thecomment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body ofyour comment and with any disk or CD-ROM you submit. IfEPA cannot read your comment due to technical difficulties and cannot contactyou for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use ofspecial characters, any form ofencryption, and be free ofany defects or viruses. Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air Planning Section (6PDL), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between the hours of8:30am and 4:30pm weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or 

### Mr. Bill Deese at 214-665-7253 to make an appointment. Ifpossible, please make the appointment at least two working days in advance ofyour visit. There will be a 15 cent per page4 fee for making photocopies ofdocuments. On the day ofthe visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas. The State submittal is also available for public inspection at the State Air Agency listed below during official business hours by appointment: City ofAlbuquerque Environmental Health Department, Air Quality Division, Office of Air Quality, One Civic Plaza Northwest, Albuquerque, New Mexico 87103.

FOR FURTHER INFORMATION CONTACT: Jeffrey Riley, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone 214-665-8542; fax number 214-665-7263; e-mail address 

### rileyjeffrey@epa.gov.

SUPPLEMENTARY INFORMATION Throughoutthis document, whenever "we" "us" or "our" is used, we mean the EPA.

Outline I. What Is Transportation Conformity? II. What Is the Background for This Action? III. What Did the State Submit and How Did We Evaluate It? IV. Final Action V. Statutory and Executive Order Reviews5 I. 

### What Is Transportation Conformity? Transportation conformity is required under section 176(c) ofthe Clean Air Act to ensure that Federally supported highway, transit projects, and other activities are consistent with (conform to) the purpose ofthe approved SIP. Conformity currently applies to areas that are designated nonattainment, and those areas redesignated to attainment after 1990 (maintenance areas), with plans developedunder section 175A ofthe Clean Air Act for the following transportation related criteriapollutants: Ozone, particulate matter (PM2.5 and PM10), carbon monoxide (CO), and nitrogen dioxide (N02). Conformity with the purpose ofthe SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment ofthe relevantNational Ambient Air Quality Standards (NAAQS). The Federal transportation conformity regulations (Federal Rule) are found in 40 CFR part 93 and provisions related to conformity SIPs are found 

### in40 CFR 51.390.



### II. What is the Background for This Action? The transportation conformity SIP enables the area to implement and enforce the Federal transportation conformity requirements per 40 CFR 51 subpartT and 40 CFR 93 subpart A. The AEHD initially complied with this requirement by submitting a SIP to EPA on December 19, 1994; we approved this SIP on November 8, 1995 (60 FR 56241). A revision to the conformity SIP was submitted on December 9, 1998 and approved by EPA on July 8, 1999 (64 FR 36786). Since the July 8, 1999 approval, the Governor ofNew Mexico has submitted three further revisions to the conformity SIP. The most recent ofthese, the December4,2008 submittal, supersedes the previous revisions submitted on May 15, 2003 and August 4, 2005. These previous revisions were also made to incorporate Federal conformity rule changes into the state6 conformity SIP for Bernalillo County, but contained language that was in conflict with the Federal rules that were in effect at the time ofEPA's review ofthe conformity SIP. Therefore, EPA could not approve the language in question. EPA and AEHD agreed that rather than EPA acting to partially approve the submittals, AEHD would develop a subsequent submittal to supersede the previous submittal, address the conflicting language, and capture any revisions made to the Federal rules in the elapsed time since state adoption ofrevisions to the Bernalillo County transportation conformity SIP. This approach was taken on both the August 4, 2005 submittal (to supersede the May 15,2003 submittal) and the December 4,2008 submittal (to supersede the August 4, 2005 submittal) to keep pace with necessary revisions to the Bernalillo County transportation conformity SIP. On January 9, 2002, the AEHD adopted changes to the conformity SIP to include a definition for Land Use Measures (LUM) along with requirements for using LUMs as air quality credits in conformity determinations. This revision also incorporated language regarding an acceptable Transportation Control Measure (TCM) substitution process and provided clarity on when emission reduction credits for TClvlsmay be used in the conformity process. These revisions were approved by the AEHD on January 9,2002 and they were submittedto EPA by the Governor ofNew Mexico on May 15,2003. EPA did not take action on these revisions, and the December4, 2008 submittal is intended to supersede these revisions. On July 1, 2004, EPA published significant revisions to our conformity regulations (69 FR 4004) to address criteria and procedures for the new 8-hour ozone and fine particulate (PM2.s)National Ambient Air Quality Standards (NAAQS). In the same FederalRegister notice, EPA also addressed a March 2, 1999 ruling by the U. S. Court ofAppeals for the District ofColumbia (Environmental Defense Fundv. EPA, et al., 167 F. 3d 641 D.C. Cir. 1999); the7 July 1 revisions served to bring our regulatory language in line with this court decision. The SIP revision package adopted by the AEHD on May 11, 2005, and submitted by the Governor of New Mexico on August4,2005, addressed these mandatory revisions, as well as EPA's August 6,2002 revision to the Federal conformity rule (67 FR 50808). EPA did not take action on these revisions, and the December4, 2008 submittal is intended.to supersede these revisions. OnAugust 10,2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) was signed into law. SAFETEA-LU revised certain provisions ofsection 176(c) ofthe Clean Air Act, related to transportation conformity. Prior to SAFETEA-LU, states were required to address all ofthe Federal Rule's provisions in their conformity SIPs. After SAFETEA-LU, state's SIPs were required to contain all or portions of only the following three sections ofthe Federal Rule, modified as appropriate to each state's

.circumstances: 40 CFR 93.105 (consultation procedures); 40 CFR 93.122(a)(4)(ii) (written

commitments to implement certain kind ofcontrol measures); and40 CFR 93.125(c) (written commitments to implement certain kinds ofmitigation measures). Pursuantto SAFETEA-LU, States are no longer required to submit conformity SIP revisions that address the other sections ofthe Federal conformity rule. However, as with previous SIP revisions, the AEHD has maintained its practice ofincorporating federal language into local rules and customizing such rules to meet the standard required by the New Mexico Administrative Code (NMAC) style guidance, rather than incorporating by reference the federal rules. EPA promulgated amendments to the Federal conformity rule on January 24, 2008 (73 FR 4420). The December 4, 2008 revision serves to update Albuquerque's regulations and bring them inline with these most recent changes to the Federal conformity rule, as well as EPA's May8 6,2005 (70 FR24279) and March 10,2006 (71 FR 12467) revisions to the Federal conformity rule.

III. What Did the State Submit, and How Did We Evaluate It? On December 4th, 2008, the Governor ofNew Mexico submitted a revision to the Bernalillo County, New Mexico State Implementation Plan (SIP) for Transportation Conformity purposes. The SIP revision consists oflanguage to address the three provisions ofthe EPA Conformity Rule required under SAFETEA-LU: 40 CFR 93.105 (consultation procedures); 40 CFR 93.122(a)(4)(ii) (certain control measures), and 40 CFR 93.125(c) (mitigation measures). As previously stated, the AEHD did not incorporate the Federal conformity rule by reference, but submitted language intended to mirror the content ofthe Federal conformity rule, while placing greater specificity on the roles and expectations ofstate and local agencies/entities which have responsibility for undertaking transportation conformity in conjunction with transportation planning activities along with the three Federal Agencies (EPA, Federal Highway Administration, and Federal Transit Administration) who are participating members in the conformity consultation process. We reviewed the submittal to assure consistency with the January 2009, "Guidance for Developing Transportation Conformity State Implementation Plans". The guidance document can be found at http://www.epa.gov/otaq/stateresources/transconj/policy/42Ob09001.pdf The guidance document states that each state is only required to address and tailorthe aforementioned three sections ofthe Federal Conformity Rule in their state conformity SIPs. EPA's review ofNew Mexico's Bernalillo County Transportation Conformity SIP revision indicates that it is consistent with EPA's guidance in that it included the three elements9 specified by SAFETEA-LU and EPA's guidance. Consistent with the EPA Conformity Rule at 40 CFR 93.105 (consultation procedures), NMAC 20.11.3.202 establishes the requirements for the appropriate agencies, procedures and allocation ofresponsibilities .as required under 40 CFR 93.105 for consultation procedures. In addition, this chapter provides for appropriate public consultation/public involvementconsistent with 40 CFR 93.105. With respect to 40 CFR 93.122(a)(4)(ii) and 40 CFR 93.125(c), NMAC 20.11.3.219(A)(4)(b) and NMAC 20.11.3.222(C) ofthe executed MODs specifies that written commitments for control measures and mitigation

measures for meeting these requirements will be provided as needed.



### IV. Final Action EPA is hereby approving the Bernalillo County SIP revision for Transportation Conformity, which was submitted on December 4,2008. We have evaluated the State's submittal and have determined that it meets the applicable requirements ofthe Clean Air Act and EPA regulations, and is consistent with EPA policy. The December 4,2008 submission supersedes the May 15, 2003 and August 4, 2005 submissions, so no action is necessary on these earlier submissions. EPA is publishing this rule withoutprior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section ofthis 

### Federal Registerpublication, we are publishing a separate document that will serve as the proposal to approve the SIP revision ifrelevant adverse comments are received. This rule will be effective on 

### [FEDERAL REGISTER OFFICE: insert date 60 

### days from date ofpublication in the Federal Register] without further notice unless we receive adverse

comment by 

### [FEDERAL REGISTER OFFICE: insert date 30 

### days from date ofpublication10 

### in the Federal Register). Ifwe receive adverse comments, we will publish a timely withdrawal in the 

### Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute

a second comment period on this action. Any parties interested in commenting must do so now. Please note that ifwe receive adverse comment on an amendment, paragraph, or section ofthis rule and ifthat provision may be severed from the remainder ofthe rule, we may adopt as final those provisions ofthe rule that are not the subject ofan adverse comment.



### V. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions ofthe Act and applicable Federal regulations. 42 U.S.c. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria ofthe Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyondthose imposed by state law. For thatreason, this action: • is not a "significantregulatory action" subjectto review by the Office ofManagement and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act (44 U.S.C. 3501 

### etseq.); • is certified as not having a significant economic impact on a substantial number ofsmall entities under the Regulatory Flexibility Act (5 U.S.C. 601 

### etseq.); • does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4);11 • does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, . August 10, 1999);

• is not an economically significantregulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • is not a significantregulatory action subject to Executive Order 13211 (66 FR 28355, May 22,2001); • is not subject to requirements ofSection 12(d) ofthe National Technology Transfer and AdvancementAct of 1995 (15 U.S.C. 272 note) because application ofthose requirements would be inconsistent with the Clean Air Act; and • does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.. The Congressional Review Act, 5 U.S.C. 801 

### et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register. A major rule cannottake effectuntil 60 days12 after it is published in the Federal Register. This action is not a "majorrule" as defined by 5 U.S.C.804(2). Under section 307(b)(l) ofthe Clean Air Act, petitions forjudicial review ofthis action must be filed in the United States Court ofAppeals for the appropriate circuit by [Insert date 60 days from date ofpublication ofthis document in the Federal Register]. Filing a petition for reconsideration by the Administrator ofthis final rule does not affect the finality ofthis action for the purposes of judicial review nor does it extend the time within which a petition forjudicial review may be filed, and shall not postpone the effectiveness ofsuch rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)13



# .. List ofSubjects 

# M**--------~=-...,;** ( 40 CFR part 52 Environmental protection, Air pollution control, Intergovernmental relations, Ozone, Nitrogen dioxides, Particulate matter, Reporting and recordkeeping requirements, Transportation conformity, Transportation-air quality planning, Volatile organic compounds.

# ~.£c;;Cj~ Lawrence E. Starfield , Dated: Acting Regional Administrator, Region 

### 6.14 

### 40 CFR part 52 is amended as follows: PART 52--[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority:42 U.S.C. 7401 et seq. Subpart GG—New Mexico 2. The second table in § 52.1620(c) entitled “EPA Approved Albuquerque/Bernalillo County, NM Regulations” is amended by revising the entry for Part 3 (20.11.3 NMAC), Transportation Conformity, to read as follows: § 52.1620 Identification of plan. * * * * * (c) * * * * * * * * EPA APPROVED ALBUQUERQUE/BERNALILLO COUNTY, NM REGULATIONS

State citation Title/subject State approval/ effective date EPA approval date Explanation * * * * * * * New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 11

— Albuquerque/Bernalillo County Air Quality Control Board * * * * * * * Part 3 (20.11.3 NMAC) Transportation Conformity 12/17/2008 [Insert date of FR publication] [Insert FR page number where document begins] * * * * * * *