UNITED STATES ENVIRONMENTAL 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 Implementation Plan (SIP) for 

Bernalillo County submitted by the Governor of New Mexico on December 4, 2008. This revision serves 

to incorporate recent changes to the federal conformity rule into the state conformity SIP for Bernalillo 

County. The revision also incorporate local changes to the conformity SIP by adding or revising definitions 

and measures to strengthen the interagency consultation process, and by clarifying requirements for control 

measures and mitigation measures. 

This submittal is intended to supersede previous revisions 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 into the state conformity SIP for Bernalillo County, but contained language 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 significant revisions to our conformity regulations (69 FR 4004) to address 

criteria and procedures for the new 8-hour ozone and fine particulate (PM2.5) National Ambient 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 for 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 language in line with this court 

decision. The SIP revision package adopted by the Albuquerque Environmental Health Department 

(AEHD) on May 11, 2005, and submitted by the Governor of New Mexico on August 4, 2005, addressed 

these mandatory revisions. 
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Per 40 CFR 51.390, states with nonattainment or maintenance areas must submit to EPA a revision to their 

SIP to address the requirements of the conformity rule addressed in 40 CFR Part 93. The transportation 

conformity SIP enables the area to implement and enforce the federal transportation conformity 

requirements per 40 CFR 51 subpart T and 40 CFR 93 subpart A. The AEHD initially 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 bring them inline with recent 

changes to the federal rule. 

The practice of the AEHD is to incorporate federal language into local rules and customize such rules to 

meet the standard required by the New Mexico Administrative Code (NMAC) style guidance, rather than to 

incorporate by reference the federal rules. See Table 1 for a comparison of 40 CFR 93 and NMAC Chapter 

20. The complete federal conformity rules of 40 CFR 93 and the complete 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 and strengthened the interagency consultation process by further defining 

the requirements of transportation planning and the consequences for failing to adhere to the approved 
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regulations. This clarity was provided by incorporating language from the Federal Highway 

Administration’s transportation planning regulations at 23 CFR 450 pertaining to the requirement to 

consider appropriate planning factors in the development of the transportation plan and to engage the 

interagency consultation process in transportation and conformity decisions, and outlines penalties for 

failure to comply with the federal planning regulations. 

Other Revisions Addressed by Previous Submittals 

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 provides clarity on when emission reduction credits for TCMs 

may be used in the conformity process. These revisions were approved by the AEHD on January 9, 2002 

and they were submitted to EPA by the Governor of New Mexico on May 15, 2003. 

Transportation Control Measures

The EPA transportation conformity regulations define TCMs as any measure specifically identified and 

committed to in the SIP that is either one of the types listed in the Clean Air Act (CAA) at Section 

108(f)(1)(A), or any other measure with the purpose of reducing emissions or concentrations of air 

pollutants from transportation sources by reducing vehicle use or changing traffic flow or congestion 

conditions. Per the transportation conformity regulations, Metropolitan Planning Organizations, such as the 

Mid-Region Council of Governments, must demonstrate timely implementation of TCMs by incorporation 

into the area’s Metropolitan Transportation Plan (MTP) 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 because obstacles to implementation are impossible to overcome. In the August 15, 

1997 transportation conformity rule (62 FR 43779, see p. 43798), EPA committed to issuing guidance on 

how an area may substitute TCMs without the requirement for a SIP revision. EPA believed that such a 

substitution mechanism was possible if states explicitly incorporate such a policy into the SIP. 

The AEHD developed a TCM substitution policy at NMAC 20.11.3.202.C.5.b, although the TCM 

substitution process became statutory upon the enactment of SAFETEA-LU on August 10, 2005. 

However, at the time the Albuquerque-Bernalillo County rule was under development, this was not the 

case. With this Federal Register action, EPA is approving this policy into the New Mexico SIP for 

Bernalillo County because it substantially meets the requirements found in our guidance and is consistent 

with the statutory language of SAFETEA-LU. EPA guidance and the SAFETEA-LU language may be 

found at this website: http://www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf. Among the 

requirements of this policy are that the substituted measures provide equal or greater emission reductions 

than those being eliminated. It also requires that the substituted measures do not interfere with any 

applicable requirement for reasonable further progress or timely attainment of any NAAQS. 

The AEHD also revised the SIP to clarify that any transportation control measures intended to be used for 

emission reduction credit in conformity analyses must be incorporated into the SIP. This is currently 

reflected by the revisions submitted to EPA on December 4, 2008. 
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Land Use Measures

Increasingly, states and communities are developing ballots and initiatives aimed at preserving open space, 

increasing development around transit stations, increasing brownfield and infill development, and other such 

limits on urban growth and design. In air quality nonattainment and maintenance areas, many states are 

seeking emission reduction credits in their SIP from such land use measures. To facilitate this process and 

encourage states to adopt LUMs as air quality control strategies, EPA has released a guidance document to 

this effect, Improving Air Quality Through Land Use Activities, EPA Office of Transportation and Air 

Quality, EPA420-R-01-001, January 2001. This document may be found at the following website: 

http://www.epa.gov/otaq/stateresources/policy/transp/landuse/r01001.pdf. This guidance states 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 strategies in the SIP, and outlines the criteria 

which must be met in order for areas to take emission reduction credits for LUMs, i.e., that any such 

measures must be quantifiable, surplus, enforceable, permanent and adequately supported with sufficient 

fiscal and personnel resources for implementation. 

Approvability Issues With Previous Revisions

The revision to New Mexico Administrative Code 20.11.3.202.C.7 outlined in the May 15, 2003 submittal 

allows substitution of Land Use Measures in accordance with the TCM substitution policy. Because not all 

LUMs are TCMs, and because EPA policy does not support substitution of LUMs without a SIP revision, 

EPA cannot support such a policy in New Mexico. This concern has been addressed by the December 4, 

2008 submittal. The language included in the May 15, 2003 submittal was removed, and replaced with the 

TCM language as established 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 and NMAC 20.11.3.203.A.1.d outlined in the August 4, 2005 submittal are in 

conflict with SAFETEA-LU. Language 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 extended the timeframe to four years; 

therefore EPA cannot approve these regulations into the SIP. Additionally, EPA cannot take action on 

NMAC 20.11.3.201.E, which contains language that a new conformity determination would be required 

within 18 months of certain 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 conformity analysis match the last year of the 

MTP. SAFETEA-LU allows other years to be used as the last horizon year; therefore 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 vehicle emissions budgets (MVEB) to use the interim emissions tests, instead of 

the MVEBs, for conformity determinations in 8-hour areas under certain conditions. In a decision on 

October 20, 2006, the D.C. Circuit Court vacated EPA’s corresponding regulation at 40 CFR 

93.1069(e)(2)(v). These concerns have been addressed by the December 4, 2008 submittal. 

Federal Conformity Rule Revision: January 24, 2008
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On December 4th, 2008, the Governor of New Mexico submitted a revision to the Bernalillo County, New 

Mexico State Implementation Plan (SIP) for Transportation 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 (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 

of the Federal conformity rule, while placing greater specificity on the roles and expectations of state 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. 

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 Bernalillo County. It also incorporates local changes to the conformity SIP by 

adding or revising definitions and measures to strengthen the interagency consultation process, and by 

clarifying requirements for control measures and mitigation measures. This revision is consistent with EPA 

regulations and guidance documents. 

I recommend approval of this revision into the New Mexico Conformity SIP for Albuquerque/Bernalillo 

County. EPA’s review of New Mexico’s Bernalillo County Transportation 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 Rule at 40 CFR 93.105 

(consultation procedures), NMAC 20.11.3.202 establishes the requirements for the appropriate agencies, 

procedures and allocation of responsibilities as required under 40 CFR 93.105 for consultation procedures. 

In addition, this chapter provides for appropriate public consultation/public 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) respectively specify that written commitments for control measures and 

mitigation measures for meeting these requirements will be provided as needed. Further, it establishes a 

regulatory framework to specifically address the air quality benefits of certain land use policies and 

practices. 
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Websites: 

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

2. Complete Transportation Conformity Regulations that Incorporate Recent January 24, 2008, Final Rule: 

http://www.epa.gov/otaq/stateresources/transconf/regs/420b08001.pdf. 

3. Guidance for Developing Transportation Conformity State Implementation Plans, EPA420-B-09-001, 

January 2009: http://www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf

4. Improving Air Quality Through Land Use Activities, EPA420-R-01-001, January 2001: 

http://www.epa.gov/otaq/stateresources/policy/transp/landuse/r01001.pdf

5. Guidance for Implementing the 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/stateresources/transconf/policy/420b09002.pdf