UNITED STATES ENVIRONMEN TAL PROTECTION AGENCY

REGION 6
MULTIMEDIA PLANNING AND PERMITTING DIVISION 1445 ROSS AVENUE, SUITE 1200 DALLAS, TX 75202-2733

DATE: October 14, 2009

SUBJECT: Technical Review of the Revisions to the New Mexico Transportation Conformity SIP for Bernalillo County

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

TO: Files

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

Background

EPA is approving the revision to the Transportation Conformity State Implem entation Plan (SIP) for Bernalillo County submitted by the Governor of New Mexico on December 4, 2008. This re vision serves to incorporate recent changes to the federal conform ity rule into the state conformity SIP for Bernalillo County. The revision also incorporate local changes to the conform ity SIP by adding or revising definitions and measures to strengthen the interagency consultati on process, and by clarifying requir ements for control measures and mitigation measures.

This submittal is intended to supersede previous re visions submitted by the Governor of New Mexico on May 15, 2003 and August 4, 2005. These previous revisions were also made to incorporate federal conformity rule changes in to the state conformity SI P for Bernalillo County, bu t contained la nguage that
was in conflict with Public Law 109- 59, the Safe, Accountable , Efficient, Flexible Transportation Equity Act – a Legacy for Users (SAFETEA-LU).

Analysis of the State’s Submittals

Federal Conformity Rule Revision: July 1, 2004

On July 1, 2004, EPA published signifi cant revisions to our co nformity regulations (6 9 FR 4004) to address criteria and procedures for the new 8-hour ozone an d fine particulate (PM 2.5 ) National Ambi ent Air Quality Standards (NAAQS). In the same Federal Register notice, EPA also addressed a March 2, 1999 ruling by the U. S. Court of Appeals fo r the District of Columbia ( Environmental Defense Fund v. EPA, et al. , 167 F. 3d 641 D.C. Cir. 1999); the July 1 revisions served to bring our regulatory langua ge in line wi th this court
decision. The SIP re vision package adopted by the Albuquerque Environmen tal Health Department (AEHD) on May 11, 2005, and submitted by the Gove rnor of New Mexico on A ugust 4, 2005, addressed these mandatory revisions.2 Per 40 CFR 51.390, states wi th nonattainment or mainte nance areas must submit to EPA a revision to their SIP to address the requireme nts of the conformity ru le addressed in 40 CFR Pa rt 93. The tr ansportation conformity SIP enables the area to implement a nd enforce the fe deral transporta tion conformity requirements per 40 CFR 51 subpart T and 40 CFR 93 subpart A. The AEHD initi ally complied with this requirement by submitting a SIP to EPA on December 19, 1994, which was subsequently approved by
EPA. The current revision serves to update Albuquerque’s regulations and br ing them inline with recent changes to the fe deral rule.

The practice of the AEHD is to incorporate federal la nguage into local rules a nd customize such rules to meet the standard required by the New Mexico Administ rative Code (NMAC) style guidance, rather than to incorporate by reference th e federal rules. See Tabl e 1 for a comparison of 40 CFR 93 and NMAC Chapter 20. The complete federal conformity rules of 40 CFR 93 and the comple te NMAC Chapter can be found at the following websites: http://www.gpoaccess .gov/cfr/index.html for the federal rules and http://www.nmcpr.state .nm.us/nmac/index.htm for the local rules.

Table 1

40 CFR 93 NMAC Chapter 20

93.100 20.11.3.6

93.101 20.11.3.7

93.102 20.11.3.2

93.103 20.113.200

93.104 20.11.3.201

93.105 20.11.3.202

93.106 20.11.3.203

93.107 20.11.3.204

93.108 20.11.3.205

93.109 20.11.3.206

93.110 20.11.3.207

93.111 20.11.3.208

93.112 20.11.3.209

93.113 20.11.3.210

93.114 20.11.3.211

93.115 20.11.3.212

93.116 20.11.3.213

93.117 20.11.3.214

93.118 20.11.3.215

93.119 20.11.3.216

93.120 20.11.3.217

93.121 20.11.3.218

93.122 20.11.3.219

93.123 20.11.3.220

93.124 20.11.3.221

93.125 20.11.3.222

93.126 20.11.3.223

93.127 20.11.3.224

93.128 20.11.3.225

93.129 20.11.3.227

These SIP revisions also clarified an d strengthened the intera gency consultation process by further defining the requirements of transp ortation planning and the consequences fo r failing to adhere to the approved3 regulations. This cl arity was provided by incorporatin g language from the Federal Highway Administration’s transportation pla nning regulations at 23 CFR 450 pertaining to the requirement to consider appropriate planni ng factors in the development of the transportati on plan and to engage the interagency consultation pr ocess in transportation an d conformity decisions, and outlines penalties for failure to comply with the fe deral planning regulations.

Other Revisions Addresse d by Previous Submittals

On January 9, 2002, th e AEHD adopted changes to the conformity SI P to include a defini tion for Land Use Measures (LUM) along with requ irements for using LU Ms as air quality cred its in conformity
determinations. This revi sion also incorporated lang uage regarding an acceptable Transportation Control Measure (TCM) substitution process and provides clar ity on when emission redu ction credits for TCMs may be used in the conf ormity process. These revisions were approved by the AEHD on January 9, 2002 and they were submitted to EPA by the G overnor of New Mexico on May 15, 2003.

Transportation Control Measures

The EPA transportation conformity regulations defi ne TCMs as any measure sp ecifically identified and
committed to in the SIP that is either one of th e types listed in the Clean Air Act (CAA) at Section 108(f)(1)(A), or any other measure with the purpos e of reducing emissions or concentrations of air pollutants from transportati on sources by reducing vehicle use or ch anging traffic flow or congestion conditions. Per the transportation c onformity regulations, Metropolitan Planning Organizations, such as the Mid-Region Council of Governments, must demonstrate timely implem entation of TCMs by incorporation into the area’s Metropolitan Transportation Plan (M TP) and Transportation Improvement Program (TIP) with appropriate funding dedicated to each TCM (40 CFR 93.113).

In some cases, the MPO might find itself unable to demonstrate that TCMs are meeting the timely implementation criteria beca use obstacles to implementation are impos sible to overcome. In the August 15, 1997 transportation conform ity rule (62 FR 437 79, see p. 43798), EPA committ ed to issuing guidance on how an area may substitute TCMs with out the requirement for a SIP revision. EPA be lieved that such a substitution mechanism was possible if states exp licitly incorporate such a policy into th e SIP.

The AEHD developed a TCM subs titution policy at NMAC 20.11 .3.202.C.5.b, a lthough the TCM substitution process became statutory upon the en actment of SAFETEA-LU on August 10, 2005. However, at the time the Albuquerqu e-Bernalillo County rule was unde r development, this was not the case. With this Federal Regist er action, EPA is appr oving this policy into the New Mexico SIP for Bernalillo County because it substantially meets the re quirements found in our guidance and is consistent with the statutory langua ge of SAFETEA-LU. EP A guidance and th e SAFETEA-LU language may be
found at this website: http://www.epa.gov/otaq /stateresources/transc onf/policy/ 420b09001.pdf . Among the requirements of this polic y are that the substituted measures prov ide equal or greater emission reductions than those being eliminated. It al so requires that the substituted me asures do not interfere with any applicable requirement for reasonable fu rther progress or timely attainment of any NAAQS.

The AEHD also revised the SI P to clarify that any tran sportation control measures intended to be used for
emission reduction credit in conformi ty analyses must be incorporated into the SIP. This is currently reflected by the revisions submit ted to EPA on De cember 4, 2008.4 Land Use Measures

Increasingly, states and communities are developing ba llots and initiatives aimed at preserving open space, increasing development around transit stat ions, increasing brownfield and infill deve lopment, and other such limits on urban growth an d design. In air quality non attainment and maintenance areas, many states are seeking emission reduct ion credits in their SI P from such land use measures. To facilitate this process and encourage states to adopt LUMs as air quality control strategies, EPA ha s released a guid ance document to this effect, Improving Air Quality Through Land Use Activ ities, EPA Office of Tr ansportation and Air Quality, EPA420-R-01-001, January 2001 . This document may be f ound at the following website: http://www.epa.gov/otaq/st ateresources/policy/tr ansp/landuse /r01001.pdf . This guidance st ates that areas may take air quality credit for LUMs by either including the land use activities in the initial emissions forecast of the SIP or by including them as line-item control strategi es in the SIP, and outlines the criteria
which must be met in order for area s to take emission re duction credits for LUMs , i.e., that any such measures must be quantifiable, surp lus, enforceable, permanent and ad equately supported with sufficient fiscal and personnel reso urces for impl ementation.

Approvability Issues W ith Previous Revisions

The revision to New Mexico Administrative Code 20.11.3.202.C.7 outli ned in the May 15 , 2003 submittal
allows substitution of Land Use Measures in accord ance with the TCM substituti on policy. Because not all LUMs are TCMs, and because EPA policy does not support subs titution of LUMs wi thout a SIP revision, EPA cannot support such a policy in New Mexico. This concern has been a ddressed by the December 4, 2008 submittal. The langua ge included in the May 15, 2003 submittal was removed, and replaced with the TCM language as establ ished by SAFETEA-LU.

The revisions to New Mexico Administrative Code NMAC 20 .11.3.201.B.3, NMAC 20.11.3.201.C.3,
NMAC 20.11.3.201.E a nd NMAC 20.11.3.203.A.1.d outli ned in the August 4, 2005 submittal are in
conflict with SAFETEA-LU. La nguage in NMAC 20.11. 3.201.B.3 and NMAC 20.11 .3.201.C.3 requires conformity determinations to the Metropolitan Transportation Plan and Transportation Improvement Program to be made at least every three years. SAFETEA-LU extende d the timeframe to four years; therefore EPA cannot approve these regulations into th e SIP. Additionally, EP A cannot take action on NMAC 20.11.3.201.E, wh ich contains language that a new confor mity determination would be required
within 18 months of certa in triggers. SAFETEA-LU extended the conformity deadline to 24 months; therefore EPA cannot approve this regulation into the SIP. Further, EPA cannot act on NMAC 20.11.3.203.A.1.d, requiring the last horizon year for the conf ormity analysis match the last year of the MTP. SAFETEA-LU allows other years to be used as the last horizon year; th erefore EPA cannot approve this regulation into the SIP. Finally, EPA cannot take action on NMAC 20.11.3.206.E .2.e, which allows
areas with 1-hour motor ve hicle emissions budgets (MVE B) to use the interim emissions tests, instead of the MVEBs, for conf ormity determinations in 8-hour areas unde r certain conditions. In a decision on October 20, 2006, the D.C. Circ uit Court vacated EPA’s corres ponding regulation at 40 CFR 93.1069(e)(2)(v). These concerns have b een addressed by the Decem ber 4, 2008 submittal.

Federal Conformity Rule Re vision: January 24, 20085 On December 4th, 2008, th e Governor of New Mexico submitted a revision to the Be rnalillo County, New Mexico State Implementation Plan (SIP) for Transpor tation Conformity purposes. The SIP revision consists of language to address the three provisions of the EPA Conformity Rule required under SAFETEA–LU: 40 CFR 93.105 (consu ltation procedures); 40 CFR 93.122(a)(4)(ii) (certain control measures), and 40 CFR 93 .125(c) (mitigation measur es). As previously stated, the AEHD did not incorporate the Federal conformity rule by reference, but submitted language intended to mirror the content of the Federal conformity rule, while placing greater specific ity on the roles and expectations of state and local agencies/entities which have responsibility for undertaking transpor tation conformity in conjunction with transportation plan ning activities along with th e three Federal Agencies (EPA, Federal Highway Administration, and Federa l Transit Administration) who are par ticipating members in the conformity consultation process.

EPA Conclusion and Recommendation

The December 4, 2008 revision serves to incorporate recent changes to the federal conformity rule into the state conformity SIP for Bern alillo County. It also incorporates local chan ges to the conf ormity SIP by adding or revising definitions and measures to stre ngthen the interagency consultation process, and by clarifying requirements for control measures and mitigati on measures. This revision is consistent with EPA regulations an d guidance documents.

I recommend approval of this revisi on into the New Mexico Conformity SIP for Albuquer que/Bernalillo County. EPA’s review of New Me xico’s Bernalillo County Transp ortation Conformity SIP revision indicates that it is consistent with EPA’s guidance in that it included the three elements specified by SAFETEA–LU and EPA’s guidance. Consistent with the EPA Conformity Ru le at 40 CFR 93.105 (consultation procedures), NMAC 20.11.3.202 estab lishes the requirem ents for the appr opriate agencies, procedures and alloca tion of responsibilities as required under 40 CFR 93.105 for consu ltation procedures. In addition, this chapter provides for appropriate public consultation/publi c involvement consistent 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) respective ly specify that writ ten commitments for c ontrol measures and mitigation measures for meeting these requirements will be provided as ne eded. Further, it establishes a regulatory framework to specifically address the ai r quality benefits of certain land use policies and practices.6 Websites:

1. Transportation Conformity, NMAC 20.11.3: http://www.nmcpr.stat e.nm.us/nmac/index.htm

2. Complete Transportation Confor mity Regulations that Incorporate Recent Janua ry 24, 2008, Final Rule: http://www.epa.gov/otaq /stateresource s/transconf/reg s/420b08001.pdf.

3. Guidance for Developing Transportation Conform ity State Implementation Plans, EPA420-B-09-001, January 2009: http://www.epa.gov/otaq/ stateresources/transconf/policy/420b09001.pdf

4. Improving Air Quality Th rough Land Use Activities, EP A420-R-01-001, January 2001: http://www.epa.gov/otaq /stateresources/policy/ transp/landuse/r01001.pdf

5. Guidance for Implementing th e Clean Air Act Section 176(c)(8) Transportation Control Measure Substitution and Addition Provision, EPA420-B-09-002, January 2009: http://www.epa.gov/otaq /stateresource s/transconf/po licy/420b09002.pdf