SUSANA MARTINEZ Governor JOHN A. SANCHEZ Lieutenant Governor



### November 1, 2013
Mr. 

### Ron Curry NEW**ME::JR~IVEU-** 

# 6POL ENVIRONMENT 

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## Office of the

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Harold Runnels Building 1190 Saint Francis Dr., Santa Fe, NM 87505

PO Box 5469, Santa Fe, NM 87502-5469 Phone (505) 827-2855 Fax (505) 827-2836 

### www.nmenv.state.nm.us



### Regional Administrator (6-A) U.S. Environmental Protection Agency, Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733
Dear Mr. 

### Curry: RYAN FLYNN Cabinet Secretary- Designate BUTCHTONGATE Deputy Secretary



### On behalfofthe New Mexico Environment Department (NMED), I am pleased to submit to the Environmental Protection Agency (EPA) the enclosed New Mexico State Implementation Plan (SIP) revision. This revision includes the repeal ofNew Mexico Administrative Code (NMAC) 20.2.98 NMAC- 

### Conformity of General Federal Actions to the State Implementation Plan. This repeal is in response to revisions made to 40 CFR Part 93, Subpart Bon March 24, 2010. The hearing record for the SIP revision is attached, which includes hearing transcripts, exhibits, public notices, public comments, affidavits ofpublication and notice ofintent to testifY. The public notice for the hearing was conducted in accordance with 40 CFR §51.1 02. No public comments were received for this SIP revision. Included with the attached hard copy ofthe SIP revision is an electronic copy ofthe submittal provided on disk which I certifY to be an exact duplicate ofthe hard copy. Ifthere are any questions concerning this SIP submittal, please contact Gail Cooke ofmy staff at (505) 476-4319.

Ryan 

## lynn Secretary-Designate
Enclosures

cc: Mr. 

### Guy Donaldson, EPA Region 6



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### Proposed Repeal of 20.2.98 NMAC 1 [

### TITLE 20 ENVIRONMENTAL PROTECTION 1 CHAPTER 2 AIR QUALITY (STATEWIDE) 2 PART 98 CONFORMITY OF GENERAL FEDERAL ACTIONS TO THE STATE 3 IMPLEMENTATION PLAN 4 5 6 20.2.98.1 ISSUING AGENCY:New Mexico Environmental Improvement Board. 7 [12/14/94; 08/02/96; 20.2.98.1 NMAC - Rn, 20 NMAC 2.98.100 10/31/02] 8 9 20.2.98.2 SCOPE:All departments, agencies and instrumentalities of the federal government. 10 A.The provisions of this Part shall apply in all nonattainment and maintenance areas for criteria 11 pollutants for which the area is designated non-attainment or has a maintenance plan and for which the Department 12 has jurisdiction. 13 B.Under section 176(c) of the Federal Act and 40 CFR part 51 subpart W, a Federal agency must 14 make a determination that a Federal action conforms to the SIP in accordance with the requirements of this Part 15 before the action is taken. 16 C.The preceding sentence does not include Federal actions where either: 17 (1)A National Environmental Policy Act (NEPA) analysis was completed as evidenced by a final environmental 18 assessment (EA), environmental impact statement (EIS), or finding of no significant impact (FONSI) that was 19 prepared prior to January 31, 1994, or 20 (2)Prior to January 31, 1994, an EA was commenced or a contract was awarded to develop the specific 21 environmental analysis; sufficient environmental analysis was completed by March 15, 1994, so that the Federal 22 agency may determine that the Federal action is in conformitywith the specific requirements and the purposes of the 23 SIP pursuant to the agency's affirmative obligation under section 176(c) of the Federal Act; and a written 24 determination of conformity under section 176(c) of the Federal Act has been made by the Federal agency 25 responsible for the Federal action by March 15, 1994. 26 D.Notwithstanding any provision of this Part, a determination that an action is in conformity with the 27 SIP does not exempt the action from any other requirements of the SIP, the NEPA, or the Federal Act. 28 [12/14/94; 08/02/96; 20.2.98.2 NMAC - Rn, 20 NMAC 2.98.101 10/31/02] 29 30 20.2.98.3 STATUTORY AUTHORITY:NMSA 1978, section 72-4-5(B) provides that the Environmental 31 Improvement Board shall adopt regulations "to attain and maintain national ambient air quality standards and 32 prevent or abate air pollution...." 33 [12/14/94; 08/02/96; 20.2.98.3 NMAC - Rn, 20 NMAC 2.98.102 10/31/02] 34 35 20.2.98.4 DURATION:Permanent. 36 [12/14/94; 08/02/96; 20.2.98.4 NMAC - Rn, 20 NMAC 2.98.103 10/31/02] 37 38 20.2.98.5 EFFECTIVE DATE:December 10, 1994 except where a later date is cited at the end of a section 39 or paragraph. 40 [12/14/94; 08/02/96; 20.2.98.5 NMAC - Rn, 20 NMAC 2.98.104 10/31/02] 41 [The latest effective date of any section in this Part is 10/31/02.] 42 43 20.2.98.6 OBJECTIVE:The purpose of this Part is to implement section 176(c) of the Federal Act, as 44 amended (42 U.S.C. 7401 et seq.) and regulations under 40 CFR part 51 subpart W, with respect to the conformity 45 of general Federal actions to the SIP. Under those authorities, no department, agency or instrumentality of the 46 Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or 47 approve any activity which does not conform to a SIP. ThisPart sets forth policy, criteria, and procedures for 48 demonstrating and assuring conformity of such actions to the SIP. 49 [12/14/94; 08/02/96; 20.2.98.6 NMAC - Rn, 20 NMAC 2.98.105 10/31/02] 50 51 20.2.98.7 DEFINITIONS:Terms used but not defined in this Part shall have the meaning given them by 52 the Federal Act and US EPA's regulations, in that order of priority. 53 A. "Affected Federal land manager"means the Federal agency or the Federal official charged with 54 direct responsibility for management of an area designated as Class I under the Federal Act (42 U.S.C. 7472) that is 55 located within one hundred kilometers (100 km) of the proposed Federal action. 56

### Proposed Repeal of 20.2.98 NMAC 2 B. "Areawide air quality modeling analysis"means an assessment on a scale that includes the 1 entire nonattainment or maintenance area which uses an air quality dispersion model to determine the effects of 2 emissions on air quality. 3 C. "Cause or contribute to a new violation"means a Federal action that: 4 (1)Causes a new violation of a national ambient air quality standard (NAAQS) at a location in a nonattainment or 5 maintenance area which would otherwise not be in violation of the standard during the future period in question if 6 the Federal action were not taken, or 7 (2)Contributes, in conjunction with other reasonably foreseeable actions, to a new violation of a NAAQS at a 8 location in a nonattainment or maintenance area in a manner that would increase the frequency or severity of the 9 new violation. 10 D. "Caused by,"as used in the terms "direct emissions" and "indirect emissions," means emissions 11 that would not otherwise occur in the absence of the Federal action. 12 E. "Criteria pollutant or standard"means any pollutant for which there is established a NAAQS 13 at 40 CFR part 50. 14 F. "Direct emissions"means those emissions of a criteria pollutant or its precursors that are caused 15 or initiated by the Federal action and occur at the same time and place as the action. 16 G. "Emergency"means a situation where extremely quick action on the part of the Federal agencies 17 involved is needed and where the timing of such Federal activities makes it impractical to meet the requirements of 18 this Part, such as natural disasters like hurricanes or earthquakes, civil disturbances such as terrorist acts, and 19 military mobilizations 20 H. "Emissions budgets"are those portions of the total allowable emissions defined in a revision to 21 the SIP for a certain date for the purpose of meeting reasonable further progress milestones or attainment or 22 maintenance demonstrations, for any criteria pollutant or itsprecursors, allocated by the SIP to: (1) mobile sources, 23 (2) any stationary source or class of stationary sources, (3) any class of area sources, or (4) any subcategory of the 24 emissions inventory. The allocation system must be specific enough to assure meeting the criteria of section 25 176(c)(1)(B) of the Federal Act. An emissions budget may be expressed in terms of an annual period, a daily period, 26 or other period established in the SIP. 27 I. "Emission offsets,"for purposes of 20.2.98.113 NMAC are emissions reductions which are 28 quantifiable, consistent with the SIP attainment and reasonable further progress demonstrations; surplus to 29 reductions required by, and credited to, other SIP provisions; enforceable under both State and Federal law; and 30 permanent within the time framespecified by the program. 31 J. "Emissions for which a Federal agency has a continuing program responsibility"means 32 emissions that are specifically caused by an agency carrying out its authorities, and does not include emissions that 33 occur due to subsequent activities, unless such activities are required by the Federal agency. Where an agency, in 34 performing its normal program responsibilities, takes actions itself or imposes conditions that result in air pollutant 35 emissions by a non-Federal entity taking subsequent actions, such emissions are covered by the meaning of a 36 continuing program responsibility. 37 K. "Federal action"means any activity engaged in by a department, agency, or instrumentality of 38 the Federal government, or any activity that a department, agency or instrumentality of the Federal government 39 supports in any way, provides financial assistance for, licenses, permits, or approves, other than activities related to 40 transportation plans, programs, and projects developed, f unded, or approved under title 23 U.S.C. or the Federal 41 Transit Act (49 U.S.C. 1601 et seq.). Where the Federal action is a permit, license, or other approval for some aspect 42 of a non-Federal undertaking, the relevant activity is the part, portion, or phase of the non-Federal undertaking that 43 requires the Federal permit, license, or approval. 44 L. "Federal agency"means, for purposes of this Part, a Federal department, agency, or 45 instrumentality of the Federal government. 46 M. "Increase the frequency or severity of any existing violation of any standard in any area" 47 means to cause a nonattainment area to exceed a standard more often or to cause a violation at a greater 48 concentration than previously existed and/or would otherwise exist during the future period in question, if the 49 project were not implemented. 50 N. "Indirect emissions"means those emissions of a criteria pollutant or its precursors that: 51 (1)are caused by the Federal action, but may occur later in time and/or may be farther removed in distance from the 52 action itself but are still reasonably foreseeable, and 53 (2)the Federal agency can practicably control and will maintain control over due to a continuing program 54 responsibility of the Federal agency. These emissions may include, but are not limited to the following: 55

### Proposed Repeal of 20.2.98 NMAC 3 (a)traffic on or to, or stimulated or accommodated by, a proposed facility which is related to increases or other 1 changes in the scale or timing of operations of such facility; 2 (b)emissions related to the activities of employees of contractors or Federal employees; 3 (c)emissions related to employee commuting and similar programs to increase average vehicle occupancy imposed 4 on all employers of a certain size in the locality; 5 (d)emissions related to the use of Federal facilities under lease or temporary permit; 6 (e)emissions related to the activities of contractors or leaseholders that may be addressed by provisions that are 7 usual and customary for contracts or leases or within the scope of contractual protection of the interests of the 8 United States; and 9 (f)fugitive dust from dirt roads or disturbed soil. 10 O. "Local air quality modeling analysis"means an assessment of localized impacts on a scale 11 smaller than the entire nonattainment or maintenance area, including, for exam ple, congested roadway intersections 12 and highways or transit terminals, which uses an air quality dispersion model to determine the effects of emissions 13 on air quality. 14 P. "Maintenance area"means any geographic area of the United States previously designated 15 nonattainment pursuant to the Federal Act Amendments of 1990 and subsequently redesignated to attainment 16 subject to the requirement to develop a maintenance plan approved under section 175A of the Federal Act. 17 Q. "Maintenance plan"means a revision to the SIP, meeting the requirements of section 175A of 18 the Federal Act. 19 R. "Metropolitan planning organization (MPO)"is that organization designated as being 20 responsible, together with the State, for conducting the continuing, cooperative, and comprehensive planning 21 process under 23 U.S.C. 134 and 49 U.S.C. 1607. 22 S. "Milestone"has the meaning given in sections 182(g)(l) and 189(c)(1) of the Federal Act. A 23 milestone consists of an emissions level and the date on which it is required to be achieved. 24 T. "National ambient air quality standards (NAAQS)"are those standards established pursuant to 25 section 109 of the Federal Act and include standards for carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO2), 26 ozone, particulate matter (PM10), and sulfur dioxide (SO2). 27 U. "NEPA"means the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et 28 seq.). 29 V. "Nonattainment area (NAA)"means any geographic area of the United States which has been 30 designated as nonattainment under section 107 of the Federal Act and described in 40 CFR part 81. 31 W. "Precursors of a criteria pollutant"are: 32 (1)For ozone, nitrogen oxides (NOx) (unless an area is exempted from NOx requirements under section 182(f) of 33 the Federal Act), and volatile organic compounds (VOC); and 34 (2)For PM10, those pollutants described in the PM10 nonattainment area SIP as significant contributors to the 35 PM10 levels. 36 X. "Reasonably foreseeable emissions"are projected future indirect emissions that are: identified at 37 the time the conformity determination is made; the location of such emissions is known; and the emissions are 38 quantifiable, as described and documented by the Federal agency based on its own information and after reviewing 39 any information presented to the Federal agency. 40 Y. "Regionally significant action"means a Federal action for which the direct and indirect 41 emissions of any pollutant represent ten percent (10%) or more of a nonattainment or maintenance area's emissions 42 inventory for that pollutant. 43 Z. "Regional water or wastewater projects"include construction, operation, and maintenance of 44 water and/or wastewater conveyances, water and/or wastewater treatment facilities, and water storage reservoirs 45 which affect a large portion of a nonattainment or maintenance area. 46 AA. "State Implementation Plan (SIP)"means the applicable portion (or portions) of the New 47 Mexico State Implementation Plan (SIP), or most recent revision thereof, which has been approved under section 48 110 of the Federal Act, or promulgated under section 110(c) (Federal Implementation Plan) of the Federal Act, or 49 promulgated or approved pursuant to regulations promulgated under section 301(d) of the Federal Act and which 50 implements the relevant requirements of the Federal Act. 51 AB. "Total of direct and indirect emissions"means the sum of direct and indirect emissions 52 increases and decreases caused by the Federal action; i.e., the "net" emissions considering all direct and indirect 53 emissions. Any emissions decreases used to reduce such total shall have already occurred or shall be enforceable 54 under State and Federal law. The portion of emissions which are exempt or presumed to conform under subsections 55 A, B, C, or D of 20.2.98.108 NMAC are not included in the "total of direct and indirect emissions", except as 56

### Proposed Repeal of 20.2.98 NMAC 4 provided in subsection H of 20.2.98.108 NMAC. The "total of direct and indirect emissions" includes emissions of 1 criteria pollutants and emissions of precursors of criteria pollutants. The segmentation of projects for conformity 2 analyses when emissions are reasonably foreseeable is not permitted by this Part. 3 [12/14/94; 08/02/96; 20.2.98.7 NMAC - Rn, 20 NMAC.2.98.106 10/31/02] 4 5 20.2.98.8 to 20.2.98.106[RESERVED] 6 7 20.2.98.107 CONFORMITY DETERMINATIONS: 8 A.Conformity determinations for Federal actions related to transportation plans, programs, and 9 projects developed, funded, or approved under title 23 U.S.C. or the Federal Transit Act (49 U.S.C. 1601 et seq.) 10 must meet the procedures and criteria of 20.2.99 NMAC (Conformity to the State Implementation Plan of 11 Transportation Plans, Programs, and Projects), in lieu of the procedures set forth in this Part. 12 B.For Federal actions not covered by subsection A of 20.2.98.107 NMAC, a conformity 13 determination is required for each pollutant where the total of direct and indirect emissions in a nonattainment or 14 maintenance area caused by a Federal action would equal or exceed any of the rates in subsections C or D of 15 20.2.98.107 NMAC. 16 C.For purposes of subsection B of 20.2.98.107 NMAC, the following rates apply in nonattainment 17 areas (NAAs): 18 19 Pollutant Tons/Year Ozone (VOCs or NOx): Serious NAAs 50 Severe NAAs 25 Extreme NAAs 10 Other ozone NAAs outside an ozone transport region 100 Marginal and moderate NAAs inside an ozone transport region VOC 50 NOx 100 Carbon monoxide: All NAAs 100 SO2 or NO2: All NAAs 100 PM10: Moderate NAAs 100 Serious NAAs 70 Pb: All NAAs 25 20 D.For purposes of subsection B of 20.2.98.107 NMAC, the following rates apply in maintenance 21 areas: 22 23 Pollutant Tons/Year Ozone (NOx), SO2 or NO2: All maintenance areas: 100 Ozone (VOCs): Maintenance areas inside an ozone transport region 50 Maintenance areas outside an ozone transport region 100 Carbon monoxide: All maintenance areas 100 PM10: All maintenance areas 100 Pb: All maintenance areas 25 24 [12/14/94; 08/02/96; 20.2.98.107 NMAC - Rn, 20 NMAC 2.98.107 10/31/02] 25 26 20.2.98.108 EXEMPTIONS: 27 A.The requirements of this Part shall not apply to: 28 (1)Actions where the total of direct and indirect emissions are below the emissions levels specified in subsection B 29 of 20.2.98.107 NMAC; 30 (2)The following actions which would result in no emissions increase or an increase in emissions that is clearly de 31 minimis: 32

### Proposed Repeal of 20.2.98 NMAC 5 (a)Judicial and legislative proceedings. 1 (b)Continuing and recurring activities such as permit renewals where activities conducted will be similar in scope 2 and operation to activities currently being conducted. 3 (c)Rulemaking and policy development and issuance. 4 (d)Routine maintenance and repair activities, including repair and maintenance of administrative sites, roads, trails, 5 and facilities. 6 (e)Civil and criminal enforcement activities, such as investigations, audits, inspections, examinations, prosecutions, 7 and the training of law enforcement personnel. 8 (f)Administrative actions such as personnel actions, organizational changes, debt management or collection, cash 9 management, internal agency audits, program budget proposals, and matters relating to the administration and 10 collection of taxes, duties and fees. 11 (g)The routine, recurring transportation of material and personnel. 12 (h)Routine movement of mobile assets, such as ships and aircraft, in home port reassignments and stations (when 13 no new support facilities or personnel are required) to perf orm as operational groups and/or for repair or overhaul. 14 (i)Maintenance dredging and debris disposal where no new depths are required, applicable permits are secured, and 15 disposal will be at an approved disposal site. 16 (j)With respect to existing structures, properties, facilities and lands where future activities conducted will be 17 similar in scope and operation to activities currently being conducted at the existing structures, properties facilities, 18 and lands; for example, actions such as relocation of personnel; disposition of federally-owned existing structures, 19 properties, facilities, and lands; rent subsidies; operation and maintenance cost subsidies; the exercise of 20 receivership or conservatorship authority; assistance in purchasing st ructures; and the production of coins and 21 currency. 22 (k)The granting of leases, licenses such as for exports and trade, permits, and easements where activities conducted 23 will be similar in scope and operation to activities currently being conducted. 24 (l)Planning, studies, and provision of technical assistance. 25 (m)Routine operation of facilities, mobile assets and equipment. 26 (n)Transfers of ownership, interests, and titles in land, facilities, and real and personal properties, regardless of the 27 form or method of the transfer. 28 (o)The designation of empowerment zones, enterprise communities, or viticultural areas. 29 (p)Actions by any of the Federal banking agencies or the Federal Reserve Banks, including actions regarding 30 charters, applications, notices, licenses, the supervision or examination of depository institutions or depository 31 institution holding companies, access to the discount window, or the provision of financial services to banking 32 organizations or to any department, agency or instrumentality of the United States. 33 (q)Actions by the Board of Governors of the Federal Reserve System or any Federal Reserve Bank to affect 34 monetary or exchange rate policy. 35 (r)Actions that implement a foreign affairs function of the United States. 36 (s)Actions (or portions thereof) associated with transfers of land, facilities, title, and real properties through an 37 enforceable contract or lease agreement where the delivery of the deed is required to occur promptly after a specific, 38 reasonable condition is met, such as promptly after the land is certified as meeting the requirements of the 39 Comprehensive Environmental Response, Compensation,and Liability Act (CERCLA), and where the Federal 40 agency does not retain continuing authority to control emissions associated with the lands, facilities, title, or real 41 properties. 42 (t)Transfers of real property, includingland, facilities, and related personalproperty from a Federal entity to 43 another Federal entity and assignments of real property, including land, facilities, and related personal property from 44 a Federal entity to another Federal entity for subsequent deeding to eligible applicants. 45 (u)Actions by the Department of the Treasury to affect fiscal policy and to exercise the borrowing authority of the 46 United States. 47 (3)Actions where the emissions are not reasonably foreseeable, such as the following: 48 (a)Initial Outer Continental Shelf lease sales which are made on a broad scale and are followed by exploration and 49 development plans on a project level. 50 (b)Electric power marketing activities that involve the acquisition, sale and transmission of electric energy. 51 (4)Individual actions which implement a decision to conduct or carry out a program that has been found to conform 52 to the SIP, such as prescribed burning actions which are consistent with a land management plan that has been found 53 to conform to the SIP. 54 B.Notwithstanding the other requirements of this Part, a conformity determination is not required for 55 the following Federal actions (or portion thereof): 56

### Proposed Repeal of 20.2.98 NMAC 6 (1)The portion of an action that includes major new or modified stationary sources that require a permit under the 1 new source review (NSR) program (section 173 of the Federal Act) or the prevention of significant deterioration 2 (PSD) program (title I, part C of the Federal Act). 3 (2)Actions in response to emergencies or natural disasters such as hurricanes, earthquakes, etc., which are 4 commenced on the order of hours or days after the emergency or disaster and, if applicable, which meet the 5 requirements of subsection C of 20.2.98.108 NMAC; 6 (3)Research, investigations, studies, demonstrations, or training (other than those exempted under paragraph (2) of 7 subsection A of 20.2.98.108 NMAC) where no environmental detriment is incurred and/or the particular action 8 furthers air quality research, as determined by the Department; 9 (4)Alteration and additions of existing structures as specifically required by new or existing applicable 10 environmental legislation or environmental regulations (e.g., hush houses for aircraft engines and scrubbers for air 11 emissions). 12 (5)Direct emissions from remedial and removal actions carried out under the Comprehensive Environmental 13 Response, Compensation and Liability Act (CERCLA) and associated regulations to the extent such emissions either 14 comply with the substantive requirements of the PSD/NSR permitting program or are exempted from other 15 environmental regulation under the provisions of CERCLA and applicable regulations issued under CERCLA. 16 C.Federal actions which are part of a continuing response to an emergency or disaster under 17 paragraph (2) of subsection B of 20.2.98.108 NMAC and which are to be taken more than six months after the 18 commencement of the response to the emergency or disaster under paragraph (2) of subsection B of 20.2.98.108 19 NMAC are exempt from the requirements of this section (20.2.98.108 NMAC) only if: 20 (1)The Federal agency taking the actions makes a written determination that, for a specified period not to exceed an 21 additional six months, it is impractical to prepare the conformity analyses which would otherwise be required and 22 the actions cannot be delayed due to overriding concerns for public health and welfare, national security interests 23 and foreign policy commitments; or 24 (2)For actions which are to be taken after those actions covered by paragraph (1) of subsection C 20.2.98.108 25 NMAC, the Federal agency makes a new determination as provided in paragraph (1) of subsection C 20.2.98.108 26 NMAC. 27 D.Notwithstanding other requirements of this Part, individual actions or classes of actions specified 28 by individual Federal agencies that have met the criteria set forth in either paragraph (1) or (2) of subsection E of 29 20.2.98.108 NMAC and the procedures set forth in subsection F of 20.2.98.108 NMAC are presumed to conform, 30 except as provided in subsection H of 20.2.98.108 NMAC. 31 E.The Federal agency shall meet the criteria for establishing activities that are presumed to conform 32 by fulfilling the requirements set forth in either paragraph (1) or (2) of subsection E of 20.2.98.108 NMAC: 33 (1)The Federal agency shall clearly demonstrate using methods consistent with this Part that the total of direct and 34 indirect emissions from the type of activities which would be presumed to conform would not: 35 (a)Cause or contribute to any new violation of any standard in any area; 36 (b)Interfere with provisions in the SIP for maintenance of any standard; 37 (c)Increase the frequency or severity of any existing violation of any standard in any area; or 38 (d)Delay timely attainment of any standard or any required interim emission reductions or other milestones in any 39 area including, where applicable, emission levels specified in the SIP for purposes of: 40 (i)A demonstration of reasonable further progress; 41 (ii)A demonstration of attainment; or 42 (iii)A maintenance plan; or 43 (2)The Federal agency shall provide documentation that the total of direct and indirect emissions from such future 44 actions would be below the emission rates for a conformity determination that are established in subsection B of 45 20.2.98.107 NMAC based, for example, on similar actions taken over recent years. 46 F.In addition to meeting the criteria for establishing exemptions set forth in paragraphs (1) or (2) of 47 subsection E of 20.2.98.108 NMAC, the following procedures must also be complied with to presume that activities 48 will conform: 49 (1)The Federal agency shall identify through publication in the Federal Register its list of proposed activities that 50 are presumed to conform and the analysis, assumptions, emissions factors, and criteria used as the basis for the 51 presumptions; 52 (2)The Federal agency shall notify the US EPA Region 6 Of fice, the Department and, where applicable, the agency 53 designated under section 174 of the Act, and the MPO; 54 (3)The Federal agency shall document its response to all the comments received and make the comments, response, 55 and final list of activities available to the public upon request; and 56

### Proposed Repeal of 20.2.98 NMAC 7 (4)The Federal agency shall publish the final list of such activities in the Federal Register. 1 G.Notwithstanding the other requirements of this Part, when the total of direct and indirect emissions 2 of any pollutant from a Federal action does not equal or exceed the rates specified insubsection B of 20.2.98.107 3 NMAC, but represents ten percent or more of a nonattainment or maintenance area's total emissions of that 4 pollutant, the action is defined as a regionally significant action and the requirements of 20.2.98.2 NMAC and 5 20.2.98.6 NMAC and 20.2.98.110 NMAC through 20.2.98.115 NMAC shall apply for the Federal action. 6 H.Where an action presumed to be de minimis under paragraphs (1) or (2) of subsection A of 7 20.2.98.108 NMAC or otherwise presumed to conform under subsection D of 20.2.98.108 NMAC is a regionally 8 significant action or where an action otherwise presumed to conform under subsection D of 20.2.98.108 NMAC 9 does not in fact meet one of the criteria in paragraph (1) of subsection E of 20.2.98.108 NMAC, that action shall not 10 be considered to be de minimis or presumed to conform and the requirements of 20.2.98.2 NMAC and 20.2.98.6 11 NMAC and 20.2.98.110 NMAC through 20.2.98.115 NMAC shall apply for the Federal action. 12 I.Any measures used to affect or determine applicability of this Part, as determined under this 13 section (20.2.98.108 NMAC), must result in projects that are in fact de minimis; must result in such de minimis 14 levels prior to the time the applicability determination is made; and must be State or Federally enforceable. Any 15 measures that are intended to reduce air quality impacts for this purpose shall be identified (including the 16 identification and quantification of all emission reductionsclaimed) and the process for implementation (including 17 any necessary funding of such measures and tracking of such emission reductions) and enforcement of such 18 measures shall be described, including an implementation schedule containing explicit timelines for implementation. 19 Prior to a determination of applicability, the Federal agency making the determination shall obtain written 20 commitments from the appropriate persons or agencies to implement any measures which are identified as 21 conditions for making such determinations. Such written commitment shall describe such mitigation measures and 22 the nature of the commitment, in a manner consistent with the previous sentence. After this Part is approved by US 23 EPA, enforceability through the SIP of any measures necessary for a determination of applicability will apply to all 24 persons who agree to reduce direct and indirect emissions associated with a Federal action for a conformity 25 applicability determination. 26 [12/14/94; 08/02/96; 20.2.98.108 NMAC - Rn, 20 NMAC 2.98.108 10/31/02] 27 28 20.2.98.109 CONFORMITY ANALYSIS:Any Federal department, agency, or instrumentality of the Federal 29 government taking an action subject to 40 CFR part 51 subpart W and this Part must make its own conformity 30 determination, consistent with the requirements of this Part. In making its conformity determination, a Federal 31 agency shall consider comments from any interested parties. Where multiple Federal agencies have jurisdiction for 32 various aspects of a project, a Federal agency may choose to adopt the analysis of another Federal agency (to the 33 extent the proposed action and impacts analyzed are the same as the project for which a conformity determination is 34 required) or develop its own analysis in order to make its conformity determination. 35 [12/14/94; 08/02/96; 20.2.98.109 NMAC - Rn, 20 NMAC 2.98.109 10/31/02] 36 37 20.2.98.110 REPORTING REQUIREMENTS: 38 A.Federal agency making a conformity determination under 20.2.98.113 NMAC shall provide to the 39 US EPA Region 6 Office; the Department; and, where applicable, affected Federal land managers; the agency 40 designated under section 174 of the Federal Act; and the MPO a thirty (30) day notice which describes the proposed 41 action and the Federal agency's draft conformity determination on the action. 42 B.Federal agency shall notify the US EPA Region 6 Office; the Department; and, where applicable, 43 affected Federal land managers; the agency designated under section 174 of the Federal Act; and the MPO; within 44 thirty (30) days after making a final conformity determination under 20.2.98.113 NMAC. 45 [12/14/94; 08/02/96; 09/08/99; 20.2.98.110 NMAC - Rn, 20 NMAC 2.98.110 10/31/02] 46 47 20.2.98.111 PUBLIC PARTICIPATION: 48 A.Upon request by any person regarding a specific Federal action, a Federal agency shall make 49 available for review its draft conformity determination under 20.2.98.113 NMAC with supporting materials which 50 describe the analytical methods, assumptions, and conclusions relied upon in making the applicability analysis and 51 draft conformity determination. 52 B.A Federal agency shall make public its draft conformity determination under 20.2.98.113 NMAC 53 by placing a notice by prominent advertisement in a daily newspaper of general circulation in the areas affected by 54 the action and by providing thirty (30) days for written public comment prior to taking any formal action on the draft 55

### Proposed Repeal of 20.2.98 NMAC 8 determination. This comment period may be concurrent with any other public involvement, such as occurs in the 1 NEPA process. 2 C.A Federal agency shall document its response to all the comments received on its draft conformity 3 determination under 20.2.98.113 NMAC and make the comments and responses available, upon request by any 4 person, regarding a specific Federal action, within thirty (30) days of the final conformity determination. 5 D.A Federal agency shall make public its final conformity determination under 20.2.98.113 NMAC 6 for a Federal action by placing a notice by prominent advertisement in a daily newspaper of general circulation in 7 the areas affected by the action within thirty (30) days of the final conformity determination. 8 [12/14/94; 08/02/96; 20.2.98.111 NMAC - Rn, 20 NMAC 2.98.111 10/31/02] 9 10 20.2.98.112 FREQUENCY OF CONFORMITY DETERMINATIONS: 11 A.The conformity status of a Federal action automatically lapses five (5) years from the date a final 12 conformity determination is reported under 20.2.98.110 NMAC unless the Federal action has been completed or a 13 continuous program has been commenced to implement that Federal action within a reasonable time. 14 B.Ongoing Federal activities at a given site showing continuous progress are not new actions and do 15 not require periodic redeterminations so long as the emissions associated with such activities are within the scope of 16 the final conformity determination reported under 20.2.98.110 NMAC. 17 C.If, after the conformity determination is made, the Federal action is changed so that there is an 18 increase in the total of direct and indirect emissions above the levels in subsection B of 20.2.98.107 NMAC, a new 19 conformity determination is required. 20 [12/14/94; 08/02/96; 20.2.98.112 NMAC - Rn, 20 NMAC 2.98.112 10/31/02] 21 22 20.2.98.113 CRITERIA FOR DETERMINING CONFORMITY OF GENERAL FEDERAL ACTIONS: 23 A.An action required under 20.2.98.2 NMAC, 20.2.98.107 NMAC or 20.2.98.108 NMAC to have a 24 conformity determination for a specific pollutant, will be determined to conform to the SIP if, for each pollutant that 25 exceeds the rates in subsection B of 20.2.98.107 NMAC or otherwise requires a conformity determination due to the 26 total of direct and indirect emissions from the action, the action meets the requirements of subsection C of 27 20.2.98.113 NMAC, and meets any of the following requirements: 28 (1)For any criteria pollutant, the total of direct and indirect emissions from the action are specifically identified and 29 accounted for in the SIP's attainment or maintenance demonstration; 30 (2)For ozone or nitrogen dioxide, the total of direct and indirect emissions from the action are fully offset within the 31 same nonattainment or maintenance area through a revision to the SIP or a measure similarly enforceable under 32 State and Federal law that effects emission reductions so that there is no net increase in emissions of that pollutant; 33 (3)For any criteria pollutant, except ozone and nitrogen dioxide, the total of direct and indirect emissions from the 34 action meet the requirements: 35 (a)specified in subsection B of 20.2.98.113 NMAC, based on areawide air quality modeling analysis and local air 36 quality modeling analysis, or 37 (b)specified in paragraph (5) of subsection A of 20.2.98.113 NMAC and, for local air quality modeling analysis, the 38 requirement of subsection B of 20.2.98.113 NMAC; 39 (4)For CO or PM10, 40 (a)Where the Department determines that an areawide air quality modeling analysis is not needed, the total of direct 41 and indirect emissions from the action meet the requirements specified in subsection B of 20.2.98.113 NMAC based 42 on local air quality modeling analysis, or 43 (b)Where the Department determines that an areawide air quality modeling analysis is appropriate and that a local 44 air quality modeling analysis is not needed, the total of direct and indirect emissions from the action meet the 45 requirements specified in subsection B of 20.2.98.113 NMAC, based on areawide modeling, or meet the 46 requirements of paragraph (5) of subsection A of 20.2.98.113 NMAC; or 47 (5)For ozone or nitrogen dioxide, and for purposes of subparagraph (b) of paragraph (3) and subparagraph (b) of 48 paragraph (4) of subsection A of 20.2.98.113 NMAC, each portion of the action or the action as a whole meets any 49 of the following requirements: 50 (a)Where US EPA has approved a revision to an area's attainment or maintenance demonstration after 1990 and the 51 Department makes a determination as provided in item (i) below or where the Department makes a commitment as 52 provided in item (ii) below. 53 (i)The total of direct and indirect emissions from the action (or portion thereof) is determined and documented by 54 the Department to result in a level of emissions which, together with all other emissions in the nonattainment (or 55 maintenance) area, would not exceed the emissions budgets specified in the SIP. 56

### Proposed Repeal of 20.2.98 NMAC 9 (ii)The total of direct and indirect emissions from the action (or portion thereof)is determined by the Department to 1 result in a level of emissions which, together with all other emissions in the nonattainment (or maintenance) area, 2 would exceed an emissions budget specified in the SIP and the Governor or, if appropriate, the Governor's designee 3 for SIP actions under State law, makes a written commitment to US EPA which includes the following: a) a specific 4 schedule for adoption and submittal of a revision to the SIP which would achieve the needed emission reductions 5 prior to the time emissions from the Federal action would occur; b) identification of specific measures for 6 incorporation into the SIP which would result in a level of emissions which, together with all other emissions in the 7 nonattainment or maintenance area, would not exceed any emissions budget specified in the SIP; c) a demonstration 8 that all existing SIP requirements are being implemented in the area for the pollutants aff ected by the Federal action, 9 and that local authority to implement additional requirements has been fully pursued; d) a determination that the 10 responsible Federal agencies have required all reasonablemitigation measures associated with their action (as a 11 matter of Department policy, a commitment will be made only if the Department determines that the project 12 sponsors and responsible Federal agencies have sought all available emissions offsets and made all reasonably 13 available modifications of the action to reduce emissions); and e) written documentation including all air quality 14 analyses supporting the conformity determination. 15 (iii)Where a Federal agency made a conformity determination based on a Department commitment under item (ii) 16 above, such a Department commitment isautomatically deemed to be a call for an implementation plan revision by 17 US EPA under section 110(k)(5) of the Federal Act, effective on the date of the Federal conformity determination 18 and requiring response within eighteen (18) months or any shorter time within which the Department commits to 19 revise the SIP; 20 (b)The action (or portion thereof) as determined by the MPO is specifically included in a current transportation plan 21 and transportation improvement program which have been found to conform to the SIP under 20.2.99 NMAC 22 (Conformity to the State Implementation Plan of Transportation Plans, Programs, and Projects). 23 (c)The action (or portion thereof) fully offsets its emissions within the same nonattainment or maintenance area 24 through a revision to the SIP or an equally enforceable measure that effects emission reductions equal to or greater 25 than the total of direct and indirect emissions from the action so that there is no net increase in emissions of that 26 pollutant; 27 (d)Where US EPA has not approved a revision to the relevant implementation plan attainment or maintenance 28 demonstration since 1990, the total of direct and indirect emissions from the action for the future years (described in 29 subsection D of 20.2.98.114 NMAC) do not increase emissions with respect to the baseline emissions, and: 30 (i)The baseline emissions reflect the historical activity levels that occurred inthe geographic area affected by the 31 proposed Federal action during: a) calendar year 1990, b) The calendar year that is the basis for the classification 32 (or, where the classification is based on multiple years, the year that is most representative in terms of the level of 33 activity), if a classification is promulgated in 40 CFR part 81, or c) The year of the baseline inventory in the PM10 34 SIP, 35 (ii)The baseline emissions are the total of direct and indirect emissions calculated for the future years (described in 36 subsection D of 20.2.98.114 NMAC) using the historic activity levels (described in item (i) of subparagraph (d) of 37 paragraph (5) of subsection A of 20.2.98.113 NMAC) and appropriate emission factors for the future years; or 38 (e)Where the action involves regional water and/or wastewater projects, such projects are sized to meet only the 39 needs of population projections that are in the SIP, based on assumptions regarding per capita use that are developed 40 or approved in accordance with subsection A of 20.2.98.114 NMAC. 41 B.Either the areawide or local air quality modeling analyses, or both, must: 42 (1)Meet the requirements in 20.2.98.114 NMAC; and 43 (2)Show that the action does not: 44 (i)Cause or contribute to any new violation of any standard in any area; or 45 (ii)Increase the frequency or severity of any existing violation of any standard in any area. 46 C.Notwithstanding any other requirements of this section (20.2.98.113 NMAC), an action subject to 47 this Part may not be determined to conform to the SIP unless the total of direct and indirect emissions from the 48 action is in compliance with or consistent with all relevant requirements and milestones contained in the SIP, such as 49 elements identified as part of the reasonable further progress schedules, assumptions specified in the attainment or 50 maintenance demonstration, prohibitions, numerical emission limits, and work practice requirements. 51 D.Any analyses required under this section (20.2.98.113 NMAC) shall be completed, and any 52 mitigation requirements necessary for a finding of conformity must be identified as being in compliance with 53 20.2.98.115 NMAC, before the determination of conformity is made. 54 [12/14/94; 08/02/96; 20.2.98.113 NMAC - Rn, 20 NMAC 2.98.113 10/31/02] 55 56

### Proposed Repeal of 20.2.98 NMAC 10 20.2.98.114 PROCEDURES FOR MAKING CONFORMITY DETERMINATIONS OF GENERAL 1 FEDERAL ACTIONS: 2 A.The analyses required under this Part shall be based on the latest planning assumptions. 3 (1)All planning assumptions shall be derived from the estimates of current and future population, employment, 4 travel, and congestion most recently approved by the MPO or the Department. Planning assumptions may include, 5 but are not limited to, the following: per capita water and sewer use, vehicle miles traveled per capita or per 6 household, trip generation per household, vehicle occupancy, household size, vehicle fleet mix, vehicle ownership, 7 wood stoves per household, the geographic distribution of population growth, and current and future population 8 estimates. 9 (2)Any revisions to these estimates used as part of the conformity determination, including projected shifts in 10 geographic location or level of population, employment, travel, and congestion, must be approved by the MPO or 11 the Department. 12 B.The analyses required under this Part must bebased on the latest and most accurate emission 13 estimation techniques available as described below, unless such techniques are inappropriate. If such techniques are 14 inappropriate and written approval of the US EPA Region 6 Administrator is obtained for any modification or 15 substitution, they may be modified or another technique substituted on a case-by-case basis or, where appropriate, 16 on a generic basis for a specific Federal agency program. 17 (1)For motor vehicle emissions, the most current version of the motor vehicle emissions model specified by US 18 EPA for use in the preparation or revision of implementation plans in the State or area must be used for the 19 conformity analysis as specified below: 20 (a)The US EPA shall publish in the Federal Register a notice of availability of any new motor vehicle emissions 21 model; and 22 (b)A grace period of three months shall apply during which the motor vehicle emissions model previously specified 23 by US EPA as the most current version may be used. Conformity analyses for which the analysis was begun during 24 the grace period or no more than three (3) years before the Federal Register notice of availability of the latest 25 emission model may continue to use the previous version of the model specified by US EPA. 26 (2)For non-motor vehicle emissions sources, including stationary and area sources, the latest emission factors 27 specified by US EPA in the "Compilation of Air Pollutant Emission Factors (AP-42)" shall be used for the 28 conformity analysis unless more accurate emission data are available, such as actual stack test data from stationary 29 sources which are part of the conformity analysis. 30 C.The air quality modeling analyses required under this Part shall be based on the applicable air 31 quality models, data bases, and other requirements specified in the most recent version of the "Guideline on Air 32 Quality Models (Revised)" (1986), including supplements ( US EPA publication no. 450/2-78-027 R), unless: 33 (1)The guideline techniques are inappropriate, in which case the model may be modified or another model 34 substituted on a case-by-case basis or, where appropriate, on a generic basis for a specific Federal agency program; 35 and 36 (2)Written approval of the US EPA Region 6 Administrator is obtained for any modification or substitution. 37 D.The analyses required under this Part, except paragraph (1) of subsection A of 20.2.98.113 38 NMAC, must be based on the total of direct and indirect emissions from the action and must reflect emission 39 scenarios that are expected to occur under each of the following cases: 40 (1)The Federal Act mandated attainment year or, if applicable, the farthest year for which emissions are projected in 41 the maintenance plan; 42 (2)The year during which the total of direct and indirect emissions from the action is expected to be the greatest on 43 an annual basis; and 44 (3)Any year for which the SIP specifies an emissions budget. 45 [12/14/94; 08/02/96; 20.2.98.114 NMAC - Rn, 20 NMAC 2.98.114 10/31/02] 46 47 20.2.98.115 MITIGATION OF AIR QUALITY IMPACTS: 48 A.Any measures that are intended to mitigate air quality impacts shall be identified (including the 49 identification and quantification of all emission reductionsclaimed) and the process for implementation (including 50 any necessary funding of such measures and tracking of such emission reductions) and enforcement of such 51 measures shall be described, including an implementation schedule containing explicit timelines for implementation. 52 B.Prior to determining that a Federal action isin conformity, the Federal agency making the 53 conformity determination shall obtain written commitments from the appropriate persons or agencies to implement 54 any mitigation measures which are identified as conditions for making conf ormity determinations. Such written 55

### Proposed Repeal of 20.2.98 NMAC 11 commitments shall describe such mitigation measures and the nature of the commitments, in a manner consistent 1 with subsection A of 20.2.98.115 NMAC. 2 C.Persons or agencies voluntarily committing to mitigation measures to facilitate positive 3 conformity determinations shall comply with the obligations of such commitments. 4 D.In instances where the Federal agency is licensing, permitting or otherwise approving the action of 5 another governmental or private entity, approval by the Federal agency must be conditioned on the other entity 6 meeting the mitigation measures set forth in the conformity determination, as provided in subsection A of 7 20.2.98.115 NMAC. 8 E.When necessary because of changed circumstances, mitigation measures may be modified so long 9 as the new mitigation measures continue to support the conformity determination in accordance with 20.2.98.113 10 NMAC, 20.2.98.114 NMAC and 20.2.98.115 NMAC. Any proposed change in the mitigation measures is subject to 11 the reporting requirements of 20.2.98.110 NMAC and the public participation requirements of 20.2.98.111 NMAC. 12 F.Written commitments to mitigation measures shall be obtained prior to a positive conformity 13 determination and such commitments shall be fulfilled. 14 G.After this regulation is approved by US EPA, any agreements, including mitigation measures, 15 necessary for a conformity determination will be both State and federally enforceable. Enforceability through the 16 SIP will apply to all persons who agree to mitigate direct and indirect emissions associated with a Federal action for 17 a conformity determination. 18 [12/14/94; 08/02/96; 20.2.98.115 NMAC - Rn, 20 NMAC 2.98.115 10/31/02] 19 20 20.2.98.116 SAVINGS PROVISION:The Federal conformity rules under 40 CFR part 51 subpart W, in 21 addition to any existing applicable State requirements, establish the conformity criteria and procedures necessary to 22 meet the requirements of section 176(c)of the Clean Air Act until such time as this conformity implementation plan 23 revision is approved by US EPA. Following US EPA approval of this revision to the SIP (or a portion thereof), the 24 approved (or approved portion of the) State criteria and procedures would govern conformity determinations and the 25 Federal conformity regulations contained in 40 CFR part 93 would apply only for the portion, if any, of the State's 26 conformity provisions that is not approved by US EPA. In addition, any previously applicable SIP requirements 27 relating to conformity remain enforceable until the State revises its SIP to specifically remove them and that revision 28 is approved by US EPA. 29 [12/14/94; 08/02/96; 20.2.98.116 NMAC - Rn, 20 NMAC 2.98.116 10/31/02] 30 31 20.2.98.117 FEDERAL DOCUMENTS:Federal documents cited in this regulation may be viewed at the 32 New Mexico Environment Department, Air Quality Bureau, Harold Runnels Building, 1190 St. Francis Drive, Santa 33 Fe, New Mexico [2048 Galisteo St., Santa Fe, NM 87505].] 34 35 HISTORY OF 20.2.98 NMAC: 36 Pre-NMAC History:None. 37 38 History of Repealed Material: [RESERVED] 39 40 Other History: 41 20 NMAC 2.98, Conformity Of General Federal Actions To The State Implementation Plan, filed 11/14/94 was 42 replaced by 20 NMAC 2.98, Conformity Of General Federal Actions To The State Implementation Plan, filed 43 06/19/96. 44 20 NMAC 2.98, Conformity Of General Federal Actions To The State Implementation Plan, filed 06/19/96 was 45 renumbered, reformatted and replacedby 20.2.98 NMAC, Conformity Of General Federal Actions To The State 46 Implementation Plan, effective 10/31/02. 47 48 49

# (



# (

( IN THE MATTER OF PROPOSED AMENDMENTS TO 20.2.98 NMAC- CONFORMITY OF GENERAL FEDERAL ACTIONS TO THE STATE IMPLEMENTATION PLAN. Em 13-04(R)

NEW MEXICO ENVIRONMENT DEPARTMENT'S NOTICE QF INTENT TO PRESENT TECHNICAL TESTIMONY

Pursuant to 20.1.302.A NMAC, the New Mexico Environment Department (NMED) hereby 

## submits its Notice ofintent to Present Technical Testimony 

## in this proceeding. 

## 1. The person for whom 

## the witnesses 

### will 

### testify.
The New Mexico Environment Department. 

### 2. The name and guaUflcations 

## ofeach teclmical witness.
Ms. Gail Cooke. Gail Cooke is an Environmental Planner in the Control Strategies
Section ofthe Department's Air Quality Bureau. She has worked in the 

## Air Quality Bureau
since June 1999. Ms. Cooke holds a bachelor degree in Environmental Design from Texas
A&M University and a master degree in Urban and Regional Planning from Virginia Tech. Her

resume is attached as Exhibit 1.
Ms. Rita Bates. Rita Bates is the Section Chiefofthe Planning Section ofthe 

## Air Quality
Bureau. She has more than 20 years ofexperience in the environmental field, including fourteen
years with the Department. 

### In addition to her work for the Air QUality Bureau, Ms. Bates has
worked in industry as an environmental coordinator and 

## in environmental consulting as a project
manager. Ms. Bates holds a B.S. 

## in Biology from Humboldt State University. Her resume is


### attached as Exhibit 

### 2.

1

## 3. A eopy of the direct testimony ofeach witness 

## In narrative form. 

# ( A copy ofthe direct testimony ofMs. Cooke is attached as NMED Exhibit 8. Ms. Cooke will provide a brief summary 

## ofher testimony during the hearing. The Department does not intend to present direct testimony by Rita 

## Bates, but may present her as a rebuttal witness, and will make her available to assist in 

## answering questions that may go beyond the expertise ofthe direct witnesses.
4. Text of any reeommended modifications to the proposed regulatory change. 

## The Department does not have any recommended modifications to the proposed regulatory change. The Department supports the repeal of20.2.98 NMAC, as requested in 

## its petition June 24, 2013

. .5. List and attach aU exhibits to be offered at the hearing. 

## The Department offers the followin8 exhibits, which are attached hereto: NMEDEx.1 ResumeofChriiCooke NMEDEx.2 Resume ofRita Bates NMEDEx.3 Proposed Repeal of20.2.98 NMAC NMEDEx.4 63 Fed. Reg. 48,106 (Sept. 9, 1998)- Approval ofNew Mexico General CooformityReroUations NMEDEx.5 75 Fed. Reg. 17,254 (Apr. 5, 

## 2010)- Revisions to Federal General Conformity Rel!Ulations NMEDEx.6 Excerpt from SAFETEA-LU (Pub. Law 109-59, Aug. 10, 2005) NMEDEx.6a Excerpt from 

## CAA § 

## 176 prior to revision by SAFETEA-LU (1996 U.S. Code) NMEDEx. 7 Affidavits ofpublication ofhearing notice NMEDEx.8 Written Testimony ofGail Cooke NMEDEx.9 Proposed Statement ofReasons and Order

6. Reservation of Rights 

## This Notice ofIntent to Present Technical Testimony is based on the Department's petition. The Department reserves the right to call any person to testify and to present any exhibit in response to another notice ofintent or public comment filed in 

## this matter or to any

2

# ( testimony or exhibit offered at the public hearing. The Department also reserves the right to 

## call
any person as a rebuttal witness and to present any exhibit 

## in support thereof.

Respectfully submitted, NEW MEXICO ENVIRONMENT DEPARTMENT OFFICE OF GENERAL COUNSEL

## ~?~ Bill Grantham Assistant General Counsel New Mexico Environment Department 1190 St. Francis Drive, Suite N-4050 Santa Fe, New Mexico 87505 (505) 222-9594 bill.grantham@state.nm.us

3

# ( Gail F. Cooke

EDUCATION


### Master of Urban andRegionalPlanning, Cancenfl'allon: EnvironmentalPlanning, Virginia Tech, Blacksburg, Virginia, 1998 Major Project: 

### The Implementation ofVirginia Erosion and 

### Sediment Control Laws and Regulations. Bachelor of EnvironmentalDesign, TexasA&M University, CAJ/lege Station, Texas, 1995 

### Other areas ofstudy include Environmental Science, Soil Science, and Civil Engineering.
WORK HISTORY 

### State of New Mexko Environment Department, Air Quality 

### Bureau 1999-Present 

### Environmental Analyst/Planner- Public outreach, including pteparing outreach material for the general public and organizing public meetings and open houses; preparation ofemission inventory updates and maintenance plans for the State Implementation Plan submittals; development oflocal initiative plans to help reduce criteria air 

### pollutants; reviewing of environmental assessments and environmental impact statements; grant writing; and 

### regulatory development. Taschek Environmental CoiiSulting 1998-1999 

### Environmental Planner- General environmental planning; conducted environmental assessments, and initial site assessments; assisted 

## in public outreach; assisted 

## in transportation planning, and land use planning projects; and 

### worked extensively with state regulations and federal rules, including the National Environmental Policy Act.
RELEVANT PROJECT EXPERIENCE 

### Public Relations 

### Developed brochures, press releases, public service announcements, informational mail outs, and educational material on various air 

### qnality related issues throughout New Mexico. Assisted 

## in the planning ofopen houses to educate the public on potential health and environmental risks resulting from air 

### pollution. Presented technical information on air quality issues 

## to the 

### general public; local, state and federal employees; and industry representatives. GTallt Writing, Budget Development, andProjectManagement 

### Developed grant proposals and budgets for seven different grants over the last four years and have been award all seven grants. Have acted as project manager for three ofthe seven awarded grants. As a project manager for these awarded grants, 

### I have 

## been responsible for most budgetary and 

### contractual related activities. Plan andRegulation Development 

### Developed and authored several federally mandated plans on various air quality issues throughout New Mexico.



## NMEDExh.1

### Assisted in the development ofthe Ozone Early Action Compact (EAC) plan for San Juan County, NM. The EAC was developed as a local initiative to control ozone levels within San Juan County, NM. Participants in the EAC include the Cities ofFarmington, NM, Aztec, NM, and Bloomfield, NM; San Juan County, NM; the State ofNew Mexico; and the US Environmental Protection Agency. Job duties included plan development, preparation offact sheets and other infonnational outreach material, the planning ofopen houses; and testifying before the Environmental Improvement Board Developed SIP Maintenance plans for the Sunland Park, NM !-hour ozone nonattainment area and the Grant County, NM sulfur dioxide nonattainment area. A maintenance plan is 

## required by the federal govenunent for areas that have violated federal ambient air quality standards to show compliance with the standard. Job duties for both plans included plan development; preparation ofemission inventory; adoption ofplan; public outreach, and testifying before the Environmental Improvement Board. Acted as the lead in the adoption ofrevisions to 20.2.99 NMAC

- Conformity to the State Implementation Plan of Transportation Plans, Programs andProjects. 

### The 

### revisions to 20.2.99 NMAC were in response to amendments made to 

### the federal rule 40 CFR Part 93 -Determining Conformity of FederalActions to State or Federal Implementation Plans. 

### Revisions to this regulation were adopted )ly the Environmental Improvement Board in 

### 2005, 2007 and 

### 2009. Coordinated the repeal and replacement of20.2. 7 NMAC -Excess Emissions. 

### The repeal and replacement of20.2.7 NMAC was done to conform to requirements in the Clean Air Act. Extensive outreach and negotiations were done throughout the regulatory development process for 20.2.7 NMAC. The repeal and replacement ofthis regulation was adopted by the Environmental Improvement Board in 

### 2008. / 

### I



# c)

# (



# C·



# c RITA BATES

EDUCATION

HUMBOlDT STATE UNIVERSlTY, ARcATA, CALIFORNIA 

### B.S., Biology, 1990. Minor 

### in Botat!J, mtphasiJ in Etology. Attendmu:e 

### dotes 1986-1990.
EXPERIENCE

STATE OF 

### NEW MEXICO, ENviRONMENT DEPARTMENT AIR QUALITY BUREAU, PUNNING 

### & POUCY SECTION 

### Stction Cbiif. 

## Mtmh 2005-prrsent**ProgrrHJ~** 

### Managtr 

## (Nablrdl Saencu Manager-2), Manh 2000- Manh 2005 Enviro,_nto/ Speaalirt, Dtf:tlllbtr 1998- Manh 2000 Enlliro1111rtntal S&imtid,ANgpst 1998- Det:t111btr 1998
The Planning & 

### Policy section of the 

### Air Quality 

### Bureau is responsible for the control strategy, dispersion modeling, emission inventoty and 

### small business assistance programs in the 

### Air Quality Bureau. The control strategy section of the 

### Air Quality Bureau is 

### responsible for preparing state implementation plans, 

### policies, and regulations for air 

### quality. The modeling section ensures that 

### all air dispersion modeling 

### analyses submitted to our agency are accurate and complete. The Small Business Assistance Program assists 

### small businesses in meeting air 

### quality regulatoty requirements.

EMPIRE GROUP, LLC 

### Empire, Nevada 

### Enllironmmtal Coordinator, }lint 1996- Jtlfl1998 Empire 

### Group, LLC 

### is the parent company for several entities which own and operate a geothermal power plant, an onion and gadic dehydnttion plant, several ranches, and a 

### garlic seed operatinn. In my position as environmental coordinator, I was 

### responsible for permitting 

### at all facilities.
JBR ENVIRONMENTAL CONSULTANTS, 

### INC. Reno, Nevada 

### Environmenta/AnafystIV, Reno Office Coordinator/Manager, Ju!J 1994- 

### ]11/y 1996 Enviroll11rtnta/AnafyftIll, ]tlfl1993- 

### ]11!J 1994 Enllironmenta/Analysl I, June 1990- July 1993
As the manager ofthe Reno office, I supervised seven technical staff and one administrative employee. During my employment with 

# JBR, I worked on and managed numerous NEP A, environmental**~tting** 

### and baseline projects.



## NMEDExh. 2[ 

### 1**~.** 

### 2 3 4 5 

### 6 7 8 9 

### 10 11 

### 12 13 14 15 16 17 18 19 20 21 22 23 

### 24 25 26 27 

# (, 28 29 

### 30 31 32 33 34 

### 35 36 37 38 39 40 41 42 43 44 

### 45 46 47 48 49 

### 50 51 

### 52 

### 53 

# ( 54 55 

### 56 [TITLE20 

### CHAPTER% PART98 

### ENVIRONMENTAL PROTECTION AIR QUALITY (STATEWIDE) COPiFQH!Im:¥ QF 

### GmRAl.llEDA M. 

### !.CTJOI'IS t:Q 

### 1'liE 

### ST,•.n; 

### IMPl.EMEI'ITA'I19N PL.+..NIRESERVEDJ**l9.~.93.t** 

### l!lll4JDIC> ,WGIII£¥1 

### Ne\1.• Ue,.iae &virerme:atal IITJ!Ee'A!IBOiit Beard, [1:!114194; 08/Q:YPii: 29.2.98.1 NMAQ l>e, 2Q 

### NMA C 2.98.199 IMI,IQ;!J



### ln 

### 'I1le previsie• eft:his Part 

### abel' apply 

### in 

### all &Em8tt?bmeat 8Bd m&i&tearme e areas fer eftteria peDutauts fer :JAtieltlhe area is 

### desig•mte& eee attaismast 

### er 

### haB a 

### mrint'nmse plaa 

### aH :fer**~IHeh.** 

### die 

### DepaRm:eat haajwiedistiea. 

### J!, 

### t111aer seetie11 178Eo) efllie Federal**A<~t** 

### 11114 40 

### CFR piiR**~I** 

### ...epmW, a :Federal 

### agereymBke a defemisatien 

### that a Pederal aetiea eesf:aJms te 

### the SIP 

### ill aeeerliilftf!e wid\ the 

### ref1Uitemeet6 effhis Part 

### hefere the 

### aetiea is la!Eelh 

### C, +he preeedirg sesteaee Bees aet iael&de Federal aetieas wkere e:idleF. (1) 

### A Natie&allllVJifeiiWe&tal Peliey Ael (NBP.'o.) a&alyeis wtlB 

### eemple!es as wAde!llled 

### by a fitil ...,, ire me&tal usessmeet {&t\), 

### aviftH!mi!Bie& impaet: 

### etateme&t (BIS). ar §!d;sg 

### efae sigsifetmt impaet**~ij** 

### tBat 'JWIS 

### prep&Eed:prierte JaaQ&JY31, 1994, er (1} 

### PA:er te 

### J.anlWH')rll, 1994 1 

### BR:8h was eemmeaeed 9f 

### a**&eatfaetv;~us** 

### awBldeS te dlft-elap ilia spaeifie eavfrorm atal analysis; 

### suflieieat envirmtm rata) sndyeia 

### v;rM aemplett!d 'by**~~.-** 1§

### 3 1994, 

### se 

### that the Federal ageYf may de*eHBiae diet 

### tile**~llafal** 

### aetiaa 

### ia ia ee&f.afi&Hy**'A-id~** 

### the speeifie**N'~Bfim•ts** mtilhe 

### IJUfi'B&es eft:he 

### SIP**p~** 

### te llie**ag~<s** 

### a#Frm&Hw ebligatiea 

### usd& aeelien 

### 176(e) efdle**FedamJ1"'~&i** 

### ad a wftttea 

### Getmminui:e& ef**ee:afsnui~·** uader**saetieal'Jft~** 

### ef@H! Fedeml :t\ilt has 

### Sees ma4e By 

### die 

### Federal asesey 

### uepeBilible forllie Federal aeliee by**Mare~!** 

# u, 1991. 

### D, Netwidistaa#sg Qft3!' 

### f'fB"A!Ii911 

### sf

### this Paft; 

### a detet · 'tie& 

### 1ltM art 

### aet:iea is iB 

### eeBfeABily wHB dte 

### SIP Sees set 9:, 

### pt die Mfies 

### hm a&y 

### ether requiremllit$ e{tke SIP, the Nmll.., 

### er tM 

### FedBH!aW: [l::lt14194; 08/\I:YPfi; 20.:1..98.2 

### NMi'£ lldt; 2Q 

### NIIY£ oloii8.1Ql**IMI~** 

### lO,l,!l8.3 S'I!A'I'WOR¥ ,w:JRQRI'l'¥1 NMSA 

### 19'1'8, oeeliae 7il 

### 4**~(B)** 

### pEe•Adee Ilia! tile 

### EII'Al'eam&B181 lflll'revemeBl Rear4 +all adept pegubtieM 

### "te attailt 8Bd meintaia 

### nafteul ,mNeM air**t~Ualdy** n*'rd ds 

### aef:J preveater 

### abate airp&UHties

.... " 

### [l::ltl4194;**Q8,1Q219~;29.2.98.l ~IMI'.C**  lldt; 29 )IMI'.C 

### 2.98.11)2 10illll)2l 

### ]Q,l,!l8.4 D\JR.'..TIQ!!II 

### Permn=o11t [12/14194; 081Q:YP!i;29.2.98.4 

### NMt'.C l>e, 

### 20 

### mY£ 2.98.193 IM I,IQ;!J 

### EFACTIVE D:..r\TGa 

### :Qesemher 19, 1994 aeept 

### vAtere a later date 

### is eitedat the 

### eud efa seeHea 

### er puapaph. [l::lt14194; QSIQ2196;20.2.9U NMAC l>e, 

### 20 )!MAC 

### ::t98.104 1001102] 

### [Tlle latest effeetf'le Elate efey 

### seaties iB 

### tJHs Part is lQ/J 1/02.] 

### 29.2.98.6 QBIEC'WIZE• 1%..

# Jlllll'••• afthie PIU't iote implemBBioeelioo**176(~** 

### aflhe Federal A;;t, as ameuSed (42 U.S.C. 74Ql 

### et seft.) aad ngalatiess lHlde£ 10 CFit 

### part 31**M~art** 

### ''JJ,**'Wit~!** respeel ta 

### die eeMefm:ity 

### efgeueml MdeHI aetiess te the 

### SlP. U&Eier these autheAties, :8EJ 

### departmi!NH; agenay eE 

### isfit:AHBeettiity efthe FeEieFat Gwlef1UBeBt staH engage is; 

### &lippeft iB a&)' Witty eF 

### pFe\'ide fk'ttsial assiataaee !M, 

### lieease er**permi~** 

### ar appmve ey**aeWJi~** 

### whish Sees**:~~.et** 

### eeBfa:fJB te 

### a SIP, This 

### Pa:rt sets ferth 

### peliey, erittu:ia, aH: 

### preeeQw.es fer demeBStmiug eEl 

### 8fJ6\ffiag ee&fefR¥t:y efsueh aetiaas te dte 

### SIP. [l::ltl1194;**QSIQ;!I!I~;** 211.2.98.6l'lH,>,C :&&, 2Q NMr.C 2.98,105 IM llll2j 

### l!l.l.!l8.7 

### DEFJN(TIQI'IIll TeeB!llltled 

### elit 11et 

### defilled ia !hie I'aft 

### "b. 11 

### la0'1ellie men riBS gPIOB 

### 1laemlly lho Fodera! 

# •""* 011d US IiPNo NguletiaBil, iB 

### Ilia! 

### era.. efpfiefil.y. 

### In n

.. \ffeeted Feder&llaad BHlB&geF" BHIHIB 

### the P'edaJ!al ageaey Of lhe Federal affieial ehwgeEl•Nith 

### olireot 

### reepeBBil>ili*)• for manogemlllll efan ""'" deoipate<loo c:Joos I uader tile 

### Federal Aot (42 Y.S.C. 7472) tl!at io laeoted vlilhiB e11e 

### hur dred l<ilemotors (I QQ km) 

### eflheprepeeee Federal

.. tie&.

Proposed Repeal of20.2.98 NMAC 

## NMEDExh. 3 1

### I 

### 2 3 4 

### 5 6 7 

### 8 9 10 11 12 13 14 15 16 

### 17 18 19 20 21 

### 22 23 

### 24 25 

### 26 27 28 29 

### 30 

### 31 

### 32 33 34 35 

### 36 37 38 

### 39 40 41 

### 42 43 44 45 

### 46 47 48 

### 49 

# so 51 52 53 54 

### 55 B. "AFeawide 

### air IJHIUy madeliag aa&J,rsis" mens 8:B 

### assessment ea a seale 

### thal iaeludes the 

### eatif'e BBscttnirmeat Bf msirtSBBIJBB 8fe& YJJhiGh \1888 &8 

### &if 

## 'fU&Iity dispeHiBB IBBdel te detefiRiBe the efi'eets Bf emissieBS ea air**Iii~·** 

### {:, "Gaa1e or eaMFiiJute to a sew ·A:aladaa" meaDS a FedeHl aet!ea that: (l) Call8es a aew vielaHen 

### ef a BaHa88lam8ieat aif**Et~ sta&~Bfd**  

### f)V\a"zQS) at 

### a leeatiee 

### iRa &ev'hbmest er msiote&aBGB 81'88 

### whisk we\lld ethBPWise eat be iB 

### 'lie)ftea enlte staadard ElwiBg 

### the f&tufe J!Bfied iB I}UBslie& if 

### the Federal aet!ea •nere aet taken, 

### er (3)**beftlf:i~Ntes,** 

### is seajuet:iea with ether**reasesald~·** fi:lreseeahle 

### aetieBS, tea aew Yielatiea efa NJ":AQS at a 

### lesati:ea iB 

### a serrthirmest er maistesaeee ana iB a masBer tlmt weuld iBereese the 

### hEfUB&G) er se'!erity afiRe 

### new**·.~elatie&.** 

### D. "Caused by," &SliSed iB 

### the terms "Met emissieBS" BBtl''iBdiAet emissieBB," me&B8 emiasieas 

### that weuld set 

### ethep.-;ise eeeHF iB ike 

### ahseeee efthe Pedenl aetiea. 

### E. 11 

### CFiteria pallu:tiiB:t OF 

### ataadard" IBBB:BS 

### my pellllkl&t fer w&ieh there is 

### esta131isB.ed a )b"'at\QS at 4Q GFRJ18lt3Q. 

### Fa "DiFeet emissioaa" 

### me8:R8 t:hese emissieaa efa 

### eritef:ia pelhHaBt er its 

### preeur-sef8 t:Bat He eaused er iDHiated hy die FedeFBl aefte& aad eeew at 

### the same ftme aaEI 

### plaee as 1M 

### aeHea. 

### C, 

### "l:me:Fgesey" mea&fl a simatie& 'Where mmemely quiek aefte& e& die 

### pm 

### efthe PedeaH a:gereies iwlelr. ed is 

### aeeded a&d where 

### t:Be timing 

### efsueh Federal aetWities melEes it impraetieal 

### te meet the 

### t=equiremeats ef this 

### Par'.., sueh 

### as satural disasters liiEe hliH'ie&Bes er ellfthEtuakes, ei·Al distufbaaees sueh 

### as tmerist aets, &Bd military 

### mebiliii!ntieBB B. "EIIIisRaas hadgets" are 

### t:Bese pertieDB efdte fetal 

### allev,ral:lle emissieBS defised iB a MVieiaa te the SIP 

### fer a 

### eeR&Hl date far the pYipese efmeetiBg reasesable fiHtllerpregress mileste&es er sttoinmeat er mdnteB&Bee demeBBk=Mieas, fer an.y efitefia 

### JIBIItH&s.t er 

### its JIFBB\:H'8BFS, alleeateel hy the SIP te: 

### (1) mehile seBNes

### ~any staliemtfY seuree er elass

### efstalienm~y seurees,

### ~) &&y 

### elass efarea seurees, er (4) 

### an.y subeategery efthe' emissieRI! ia·;eatet=y. The 

### aUee&lie& system ml:IBt he speeifie eeeugh 

### te BS!ftllle 

### meelisg tBe Bfitefia 

### efseetien 178(e)(l)fH) efthe FedeFBl Aet. 1'\B 

### emissieB& budget 

### may he &pressed is 

### tBfllls efan. B:fllluel 

### Jleried, allailyJiefled er ether ,efied estahlished is the 

### SIP. ' 

### L "Emissiea elfsets," ferJnHfBSes ef2Q.2.98.ll] 

### )9.MC are emissieas reduetieBS w.hieh &Fe 

### EfWHHifHlble, eeBSisteat 

### Y.tith the SIP 

### sttoinmeut BIHI 

### Eease&ahle :fiuther pregress 

### demeB:StratieB:Sj sw,JluB 

### te redueiie:B:S retJUired 

### 13y, an.d eredited te, ether 

### SJP J1f9 7

### JisieBB; eafereeahle HEier Seth Slate 8:Rel Feelemllaw; ed 

### pmrsreBt witiHB 

### tfte time fi:ame speeified l:ly the pregRHB. J. 

### "Emlssioas fer wltieh 

### a Pederal 

### ageae,· lias a 

### eaatiaulag pFagPam Fespassihility" 

### meBBB emissie:B:S that 

### &Fe speeifisally eaused 8y as agesey Bllff5riftg 

### etit 

### Ks atHheriiies, an.el tiees net iBeltide emissieBS that 

### eeeUE dYe te su\lseqae&t astiviiies, UBiess saelt aetivities BH 

### reqaifed hy 

### the Pederal ageaey. VtothBFe liB 

### ageasy, ia 

### pBFfeRBiBg iis neHB&I pregram. respeasihilities, taiEes aeiiens itselfer impeses eenditieBB that 

### resuk ill air 

### peiJutaBt: emissieBS ey 8 BeD 

### Fedeml eaa.,. tpNng subsequent aetieBS, SHeh emissieas BFe BB"IBfeel ey the meaning efa eestiaui&g pregram respessihility. K. "FedeFal aetioa:•**~e1Hl8** 

### &BY 

### aetFJit:y esgaged is 

### l:ly a deJiarim:e&q agesey, er**ieetA~mestaliey** 

### ef the Federal ger;81'BIIle&q er an.y 

### aeW.'ity that 

### a Elepartmeat, ageaey er iastfumeumlity 

### efthe JLeeleral gevemmeBt supports**ill~** ·:ti'BY, 

### prevides ficneial 

### assista&ee fer, lis

### eases, pe:HB:ils, er approves, ether *an aeti.-Jities related te 

### tra:Mpertatiea plass, programs, asd 

### Jlrejeets de\"Bleped, Nude !I, er appreveEI tiBelBf 

### title 13 lJ.S.C. 

### er the F.ederal *masit Ast (49 TJ.S.C. lfiQI et seq.). ',VheFe 

### the Fedeml aeftea is a pet=mit, lieeBSe, er etfter appreval fer same aspeet efa aea Fed8f811HldeFtakieg, the relevant aetir.'ity is 

### the paR, paRis&; erphase eflhe sa& Federal UBdeAa:lr:i:ag**~ H~~Qi:Fes**  

### t:Be FeEleel permit, lieeBSe, er appreval. 1.. "Fede:Fal agese,·" meBBs, fer JllUJ'B&es efthis PaR; a Fedeml d8J18l1me&t, a:geney, er iastAimemality efthe Fedeml ge·;emmeBt. M:. "laereue the 

### f:Feqaeaey 

### a:F severity ofaay eBstiBg viola&es 

### of811f staBd8f'd iB 

### aay area" 

### m.eaB8 te 

### eMI:Be a BBBa,drmeBt aFea te exeeed a staBd&fti mere eftea er te eause a T;ielatiea at a great-eF ee&eeab=&tiea than 

### pre·vieusly eniste& aad/er weald edieFWise enist duriBg 

### the fY:ture 

### periad iB**~:~aestiea** 

### ifthe



## . .**~** 

### ' prBjeet were aet J:mpleme&teu. N, "IBdif'eet esHssioas" 

### meBBB these emissions efa eriteFia pelleta&t er its 

### preSlH'SeFH that: (1) are eaaseS by tfte Federal aetie&,**hut~·** 

### eeGlB' later iB 

### time aad/er may 

### he farther reme ··ed ia 

### di:sta&ee frem: 1M aetiea itselfbtit B:Fe 

### still rease&Mly fereseeaBle, &Bel (l) 

### !he Fedef!>l &gOIIGY ea& !'fllGtieably eeBIFel a&<l 

### willmai&lai& eeBIFel e•,•er <ll!e te a oelllimli&g pregmm respeBSihility eftl!e FedeFal ageBGy. These emissions may inehi&e, bHt BIB 

### aet limited te •e fallewiBg;

Proposed Repeal of20.2.98 NMAC 

### 2 

# (

# ( I 

### 2 3 

### 4 

# s 6 7 

### 8 9 10 II 

### 12 13 14 15 16 17 

### 18 19 

### 20 21 

### 22 23 

### 24 25 

## 26 27 

### 28 29 

### 30 31 

### 32 33 34 35 

### 36 37 

### 38 

### 39 40 41 

### 42 43 

### 44 45 

### 46 47 48 49 

# so 51 

### 52 53 54 

# ss 56 Ell} 

### tmftie ea er te, er stimulat:ed er aeee&HBedated hy, 

### a pfepesed faeii:Ky whish is felated te iBet:eases er ether 

### +sages ill 

### •a seale er t'mbg efepera&ieBS 

### efstteh faeilfty; 

# a.} emissieBB related 

### te 

### tBe 

### aetivities ef employees 

### ef eeatre&teFB er Federal employees;**E~** 

### emissieBfi Jelated te 

### empleyee eemmutisg asd si-Uar pregrams te 

### iBBfeltiJe aveF&ge vehiele eeeup&Bey imposed 

### ea aD 

### BIBf!leyeFB efa eertaia siise ia 1he lesality; {Eij 

### emissiess related te 

### tile lHIB 

### efFedeml faeilibesl:I:BdeJ" lease er tempBF81Y 

### peABit; 00 emissieBS related te tile aetfrlities ef eemmeteFS er leaseheldeH

# •t may 'ee addressed hy 

### previsieas 

### tll&t &:Fe 

### \18\lal ed eustemary fer eeatmets 

### er leases er 

### yJithiB 

### the seepe efeeatHetual preteetiea efthe iaterests 

### ofthe lJBiMd States; asd {I} 

### fllgitiYe duM 

### Hem GUt reads er distw=9ed sail. Q, ":boeal 

### air ctaaiit,· medellag8B-"'si&" meass aa assessmellt efleealiised impaets ea a seale 

### smaller than the 

### esti:fe 

### aeca1tsb=eat er =sbteaaaae Mea, iBeiHdiag, 

### feF eJEB:IBple, eeagested raadt.vay iBtmeetieas ad higliv!ll)'B 

### er 

### lfBBSit 

### tetmis''S, whish 'Wies au air 

### Eftl&lKy dispeRiee medel te deteRBiRe the efteefB efemi86ieas BB aif !fl:t&lity. 

### P. "l\laisteaaaee area" meaos ey 

### geegrepBie BFea ef1:he TJBHed States previeuBly designated aenst*aisme&t p1H8Uaat 

### te tile Fedet=a:l Aet Ameedmlmts ef 199Q 

### BBd salJsetJU:ea&&y redesigseted te 

### sttsirmeat suBjest te die 

### NE(uiremeat te 

### det:elep a msbtennree plan appre i'ed ueder seeHea 17§A eftlie Fedeml Ast. Q. 

### "l\laiateaaaee plaa" meae.s a revisiea te 

### the SIP, meelisg tke 

### rei}Uifemests efseeHee 17-3A ef the**Fedemll~t.** & 

### "MetFopolitiHl plBB&iag apgaaYatioa**f'!IP~"** is that 

### ergnnizatiea desigaated aa beiDg re&peBSible, tegetkB£ ·nitll the State, fer eeaduet:isg t:Be**eea~risg,** 

### eeap_emtive, 8Bd eem.pA!liBBflive pJanring preeess uder 2l 

### tJ.S.C. 134 8Bd 49 U.S.C. HiO+. 

## s,**"~'lilesteae"** 

### haB tile 

### meadeg 

### gF1e11 ill seetieBtJ**182~El)** 

### BDd l89Ee)(l) 

### efthe Fed!fal Aet. A mi:lest:e&e eeBSis18 ef BE: 

### emissieBS level aud the 

### Elate s& wBieh. it is**n~d** 

### te he aeiH.e-,.ed. T, "Natie&al amhient 

### air f111&Ut,- ataad&Pdl {N-!za'zQS)"**~these** 

### staadllftis estalllisBed pursuast te 

### seetie& IQ9 efthe Fedeml.'\et aBd illslude stasdafds fer eafhsa meseJlide**EC~.** 

### leiWI (P\1), sitreg81l 

### dieJEide fNOO), Bii5BBB, 

### putieulete IBBUer f.PJ.U9), asd sulfur 

### diexide (SQ;). lJ. 

### "NEP:."J." meBBB the Natieeal EwJireBHlellfal Peliey •"aJt ef l9fi9, 

### as amesded (41 

### TJ.S.C. 4321 et 

### Y, "Naaatts'nmeat**area~~~** 

### meBBS asy 

### geegmpll:ie area eftlle lJBited Stat:es wll:ieh 

### has lleea desiguated as aeestt::iamest usder seetiea 10+ eithe Federal Aet 

### aBEl deserilled iB 

### 40 CfR 

### part 81. 

# w. "P.Peearsora ef a eritePia pollatut" &Fe: 

### (1) Fer ei5eae, Bitfegen eJlides f)'JQ£.) 

### fualess as area is mtempted &om NQ* 

### FeEtuiremee18 usder seetiss 18200 

### ef &Be**Fedemll'.~:et),** 

### 8Bd velatile et=ga&ie eempeuads (VOG); a&d {l) 

### Fer Pl.flO, these pelklkmts deserilled is: 

### tile P).{10 aeaa*t'jpment area SIP 98 

### sig&ifieant eeetFilluters te tl:te P}.UQ lw;els. X, "ReasoaaiJJy fereseeahle emilsiaas" 

### a:re pfejeeted fltmre 

### iBdU-eet emissiees 

### tMt are: 

### ideatified at the time the eeD:fetmity detefBlisatiee 

### is made; t:Be leeaties efsueh emissisBS is late II&; 

### aed the emissiess Rfe 

### fltlaelifiable, as deserilled asd deeumented 

### Dr the Pedefal ageaer llased ea Hs 

### ewB isfeHBatiea 8ftd 

### after eviewtsg 8ft)' 

### imet=matiea presented te the Federal age&ey.

_ 

### ¥, "Regioa.U,· sigaifieaot aet:ioa" meaes a FedBHI aetiea fer wiH.eh th:e direet aod ie:direet emissieBB ef 8Bj" 

### pellutaot 1ep1

### eseat ten peFee&t ( 1**0~')** 

### er mere efa aemtts;nmeet er maisteeBBee area•s emissieas iave&tery fer 4kat 

### pellutaat. Z. "Regiaaal water OF 

### waste'tc¥atll" prejeeta" ia:elude eeBBtm.etien; e)3!Htiea, 8P:d maiBteaasee sf ':l&ter asdler -.,.'Mt&vlftler eesveyaaees, v!Mer 8Bdter ·.vastewater tfeafm::eat fasilities, BB:d v.lftter stemge resePieirs YyTJhiGh afieet & 

### large peRie& ef 8 &e£cttajpmest Bf 

### M,irte&B:BS! area. AA, "State Implemeutatioa Plaa (Silq" 

### mellBS the applieahle perUse (sr peftiens) efthe }Jew J.{eJEiee State lmplemestaties 

### Pie ESlP), er mast resent An4Biea thereef, whish 

### Bas lleee appreved UBel!f' 

### seeties llQ efthe PedefBI**Ae~** 

### erpFemulgated lHniM 

### seetiea llQ(e} 

### fFedeRtllmplemeBtatiea Plan) efthe Federal Aet, sr p•oiiWigatell of appre'lell P"""'BBtlo ngulo9oBS p•eiiWigatell IIB<Ief seeliea 301 (Ei) of !he Federal Aet BBII whlolt 

### implements the relsvast reetuiremeats efthe Federal Ast :'\B, 

### "Tutal uf diFeet aud iBdiFeet emissions" meBBS the SWB 

### ef dir-eet B:Bd ir:difeet emissieas ir:ereases anel deet:e&Bes e&Wiedlly the 

### Federal aetieltj i.e., the 11

### net" emissiess eeasideri&g all 

### direst aad isdireet emissieas. Any emissisBB desreases used te Feduee BBeh teta:l shall ftaz;e already seeYRed sF shall he enferee&ele a&der State and 

### Pederallaw. J:Be peftiee ef emissie?9 whish are BJlem.pt er presl:Hiled te eeefeHB wdeF subseetiers A, 8, 

### C, er D sf2Q.2.98.1Q8 }lJ.IJ\-C 

### an 

### set iseluded iB 

### the 11

### tetal efdiFeet B:Bd ir.difeet emissiees 11

, 

### eneeptas

Proposed Repeal of20.2.98 NMAC 

### 3I 

### 2 3 4 

# s 6 

### 7 8 9 10 11 12 13 

### 14 !S 

### 16 17 18 19



### 20 21 

### 22 23

24 

### pre"lided ill 

### sullseeliea H ef20.J.98. I08 NMI-

.. 

### G. l=he "total efdire at 8Bd: isdkeet emissieBB" illehtdes 

### emissieas ef efiteAa pellutaeY aad emissieBB efpneQI'SBf8 efefHeFia pallutaBts. 'Ate segmes1at:iaa efpfejeets fer eaafeRBHy 

### a-clyses wkea 

### emissieBS &fe 

### rease&abl) fareseeahle is 

### &at permilteEl "Y 

### dUe Patt [12/14194; 98102196; 29.2.98.7 NM/£ 

### R!t; 29 NMAC.2.98.196 100 1192J 

### 10,1,98,1 to 

### l'Ml.91al06**~S~lPJBbq** 19.1.98:197



### ..**~.** 

### Canfensily detennhctieDB fer Peflefl:l aetieBS 

### relMed te tnBspeft&ties plaas, pFegrams, 

### &Bd pfejeets dM•eleJJBEl, fsaded, er appFeveduader title 23 U.S. C. er die 

### FedeF&Il'resBit**.·~t** 

### (49 Y.S.C. lfiOl et seE(.) must meet t:lte preeed:ufes &B6 efiteria af2Q.l.99 )'Q,f:h.C (Gesfemlity 

### te the State lmplemestaliea Plaa af 

### TrasspeFtatiea 

### Pl1H18, PregHmS, 

### 8Bd Prejeets), 

### is lieu efdie praeedures set fafth iB 

### this 

### Par:t B. Per Fedef8.l 

### aetieBB eat severed 

### l1y suhseetiea A. efl0.2.98.10+ m,(:.ft.£, 

### a eeBfal'IBHy 

### detemhsliea is ret}Uifell fer eaeh pelkltaat whBfe die teal efdireet BBd iBElifeet em:issieBtJ ill 

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### 25 [12/14194; Q810219G; 2Q.2.98.1Q7 NM/£ 

### Rn, 

### 2Q NMI£ 

### 2.98.1Q7 IQIJ1192J 

### 26 27 

### 28 29 30 31 

### 32 lO,l-98.108 

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Proposed Repeal of20.2.98 NMAC 

### 4 

## (



# (

(

# (



# (

( I 2 

### 3 4 

# s 6 

### 7 8 9 10 11 

### 12 13 14 IS 

### 16 17 18 19 20 

### 21 22 

### 23 24 25 26 27 28 29 30 31 

### 32 33 34 35 

### 36 37 38 39 40 41 

### 42 43 44 45 46 

### 47 48 49 

# so 51 

### 52 53 54 

### 55 56 

### 00 Jtulieial 

### 8:Bd legislatfr. e preeeedi&gs. {b} 

### Gesliauillg aad reeuRiag aetPI'iftes tNeh as pemHt FeBewals wlteFe aeti<Yilies eeudueted. 

### will be similar iB seeps 

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### ReHtise =eiateseaee ed 

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### •epair aad 

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### tmiiB, aBEl Hleilities.**~** 

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### J'fBpesals, &Bd mattm 

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### aireraA, iB heme pert reassigz eats 

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### as appre"Jed disposal site. fj} 

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### whtn futwe 

### aeti·Jities eeadueted wi119e siJBiiB:f iB 

### seepe a&d 

### eperatiea te 

### ae&v!ties eurrently heiBg eeadueted 

### at the eJEisti:B:g s&uetuft!s, prepefties fasilities, aad laalle; fin 

### Mample, aetieRS**tn~eh** 

### as Hleeatiea efpmeMel; &ispesitiea effeSerally B'Jmed exi8tisg 

### !HR!stures, 

### preperties, faeilities, aad 

### laRds; HBt SBhsidies; epeF&ties 

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### as fer enperes asd trade, peRBits, ed easements where aetivities eBRdueted \\rill9e simHor iB seepe aad eperatiea te 

### aetiz;ities 8\H'f81Hly**~eiag** 

### eeadueted. (ij 

### Phndag, stwlies, aad JU9'Jisies efteehs:ieal assistaaee. 

### fm) Reutifte eperatiea ef

### faeilHies, mehile assets 

### &DEl l!ll(uipme&t.**~** 

### 1'Ft1ns&rs efe-.rJBeJ'Bhip, iflterests, B:Bd titles iR laBEl, faeilities, BB:d real 

### adperseBB::l preperli:es, reganlless efdie fefBl er metllod ef!he trassfer. (o) 

### TBe desigaatiea ef empev. ermest :i!IB&es, eaterpfise eeRHBliBities, er¥it:isulbmll areas. {JI} 

### AetieBS 

### By aay 

### efthe Fedef8:19an18ag ageseies Bf 

### !he Federal ResBPJe**~aftlr:s, iftelu~**  

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### previsies effirsseialset=\'iees te hBBIEiBg erganizatieBB er te aay 

### deparimem, agesey er iastr&meRte:lity efthe lJBited Sates. (II) 

### AetieBB**~y** 

### the :ReuS 

### efGe 7

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### PedeRI Rese.ve SanJ£ 

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### implemest a 

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### affa:ifB imeties efthe l1Bited States. (8) 

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### rei(Wed: te eeeur promptly afler a speeifie reaseaable eesditie& Hi 

### met, SBeh BB promptly aftBF tile lasd is eet=Hfied 

### as meetisg tfte retjt:Hremeets efthe ' CempreheBSP;e &wireBIB:estal RespeBfle, CempeBSaties, ad liaBility i:et (CBRCL}·.,)J 

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### emissie:BB aA!I 

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### By &JEpleratien asd develepmeat plBBB en a prejeet level. (IJ) 

### Blesttie peYFef marketisg aetivities that 

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### aetieBB whieh implemeat a 

### deeisiea te eesduet er BSHY aut a 

### pregram that 

### lias Seen feud te 

### eoafefftl te 

### the SIP, 

### sueh as preaeri:Sed Sandng aetieBS whieh are 

### eeBSisteat y,ritft a 

### land mBB&gement pl8R that has 

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### eeafeHB te the SIP. H. }JaW!ithstaadisg the ather FeE(Hirements efthis 

### Par., a seafefftlity detet=misaties is net**refi~Uirtld** 

### tar the fellewiBg FeEieml aetieBS (er pefliea thereat):

Proposed Repeal of20.2.98 NMAC 

### 5

### I 

### 2 3 

### 4 

### 5 6 7 8 9 

### 10 II 12 

### 13 14 15 

### 16 17 

### 18 19 

### 20 21 

### 22 23 

### 24 

## 2S 26 

### 27 28 29 

### 30 31 

### 32 33 

### 34 3S 

### 36 37 

### 38 39 40 

### 41 

### 42 43 

### 44 45 

### 46 47 48 49 

### 50 51 

### 52 53 54 

### 55 56 aew -•<e•A.w: (N8R) pr&lJIIIIB 

### (ileeliee 173 efll!e FolleNL.,.,I) erlBepre\ eeliee efeipifisMit doloriefelieol (P!ID) 

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### "l'J'Iieal!le eJPo'ireBIB:emallegislatieo er eavifermemal regulatiees (e.g., hush he\kles ffir airefaft eagbn and ssN:\'llua:s far aiF emissieBB). ES) 

### Direst emiBsieB:B &em remedial aa:Ei fefBBval 

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### iameEi liBEler 

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### efsuBsestieaB ef20.288.1Q8 

### NMAC ...., OIIO&pt 

## m.m ll!e re'f!liremeelii eflloie -aell 

### (ljj.2.98.108 

## NMI'-'4 ""'Y 

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### fM' a speeified peR:ail eat te eJEee ed 

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### efsabaee'Sea C 1Q,2.98.1Q8 NMAC, lila Federal "ll"""Y mlllms a aew ilol81mirtatiaaae pre .-idod iB 

### l'""'8"lll'll (1) afSIIheee!iaa C 29.2.98.198**~!MJ'.C.** 

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### aeliees ar el118ses ef**a<~liaes** 

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### eilher pamgmpl! (I) 

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### efsllllseeliea Iii**ef~.:M8J** 

### 98 Nl>IAC: (1) 

### The Federal ageaey shaH e1early demassRM!**usi~Ja** 

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### is direet emissieDS Rem 

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### efprJI!Iased .oowieell!et llM pwaumeEl te eenfeHB fl!l6 

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### all die 

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### aad: f.iezllist efaativitiea e?ra:ilalde te 

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Proposed Repeal of20.2.98 NMAC 

### 6 

# (



# (;

# ( I 

### 2 3 

### 4 

### 5 6 

### 7 8 

### 9 10 11 12 13 14 15 16 17 18 19 

### 20 21 

### 22 23 

### 24 25 26 27 

### 28 29 30 31 32 33 34 

### 35 36 37 38 39 40 41 

### 42 43 

### 44 45 46 

### 47 48 49 

## so 51 

### 52 

### 53 54 

### 55 f4} The Federal ageaey shall puBlish the fir,! list ef &lieh aelivHies iB 

### t1te 

### Pedeml Register. 

### G. NetwitBetaeding the 

### etkM HEtuiremests efthis Par, whea 

### the teal efHeat &REI 

### bdiroet 

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### rates speeifietl 

### ia auhseetiea R ef1Q.1.98.107 )Q'Ia'\C, 

### \nil HpF888Bt8 

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### total etP;SSieBB 

### efthat pellutam, die 

### aeHea is defi:aed as a regiesally sjgemsBRt astieB aad the Feijuil'emeats eflQ.l.98.1 )JILl/£ 

### 11Bd 29.2.98.(;**~IliAC** aad 2Q.2.98.11Q 

### NJ.l.t'zC threugh 29.2.98.11§ )Doll£ abel' apply fer die Pedeml aet:iea. 

### R,**'.l~Befe** 8ll 

### aetie&J!Iresumed te he Ele mbjmis uadM pBAlgrapti 

### (I) er**(~** 

### efsvbseetie& A ef 29.2.98.198 }JMI£ 

### or ethef'NiBe presumed te 

### eeafeml:JBder !R:lbseeties);) e£29.2.98.198 N1.L'\C is a Mgiasally sigsifi:ea&t aetiea er v. here BB 

### aetiea ethefWise pF88UIBed te eeBfeRB 

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### meet eae eHBe 

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### ef2Q.2.98.108 NM;.'\-C, 

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### he de mhimis er preen 8 

### te ee&:feRB 

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..C &Bd 29.2.98.6 

### NJ.If£ 

### a!Hl20.2.98.11Q NM:'-£ through 

### 29.2.98.11§ )JJ.IAC sL,n apply 

### fer tBe**~edenl** 

### aetiea. 

### I. :A..tt}· 

### measures \16Bd te afteet er detemHse applieahility efth:is 

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### m.I!

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### prejee18 that are 

### iB fast de mbimis; JBUSt result 

### is 

### s1:1sh de mhimjs levels prier te 

### tile time die applisahilay detemh?Bea in made; BBd must he State er Federally eeferee&Sle. 

## •\wt meaSUfeS thfi 

### BH 

### i:ateuded te 

### redaee 

### aH-1f1:181it:y impaets fer this 

### pl:ll'pese shall 

### he idestified {iBel11 1 

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### BBd eafereemeBt efMJeh meMwes she" he deserieed, iaekldiBg 8B 

### implemeatatiea seheEklle eestddrg IKJ'liBit timeliRes fer implemeatatiea. Prier tea deterrhdies efapplieaiJilay, the Federal agesey IBOkieg 

### the detemhn&ea shall ehtB:iB WfiUe& 

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### pB198BS Bf &gi&Sies te imp)emeat &By IBBB8UH8 

### wJ:tieft BfB idea&fied 118 

### eesdiSeBS tar me)eiag St:lBh 

### detemdn,tieas, 8ueh WfHtBB 

### eemmitmeat shall desefilte sueft m!tigatiea !Bell8\li'BS 8F:d the B&tllfe efthe 

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### 8**~edeml** 

### astiea fer a 

### ee&feRBity 8pplieahility deteHBiaatiea. [11/14194; Q81Q2196; 19.2.98.108 }JibY..C 

### Rs, 2Q NMAC 

### 1.98.198**19/31~]** 

### 29.2.98al99 CON¥9RMITY ANAI:.¥-8IS1 hty Fedeml dep&Ftmeat, ager:e), er ios&ume&tality 

### efthe FedeFBI gB'• 

### emmeat tddrg 8B 

### aetiea sejeet te 

### 4Q GPR pBI't §1 SBbpaft 

### \V a&d this 

### PaR must make its 

### B"lJB ee&fBrmity det&PEirrtie&; eeBSisteat wHh the 

### reijuiremie&ts efthia Par_ 1ft 

### maldrg its 

### esafermitr deter bdie&, 8 

### Federal ageaey shall eeasider eelllllleats frem 

### IIBY iaterested parties. '.llhen multiple**~ederal** 

### ager:eies ftaz,re jllristiietiea fer vafteus aspeettl efa prejeet; 8 

### Fedeml &gBBB)' 

### may she ese te 

### a&ept**~** 

### aaalysis efBBethB£ FedBI'al ageaey (te 

### the eHeat the 

### pFepesed aeSea 

### as4 impaeis stte')'ii!Sed are**~Be** 

### same BS the 

### prejeet fer whish a 

### eeafeflllity detemdratiea is**re'fllife~** 

### er develep HB B'Ml 

### 'Fa'ysis ia 

### sHier te make ilB**eeafe~** 

### detemiraties. [11/14194; 98/91196; l9.2.98.1Q9 }TJ.I:AC Rs, 

### 29 mil£ 1.98.109**lQlll~]** 1U,!18.110 

### REPORriNG REQmREIIIENTS1 A, 

### Federal ageaey maiEisg a 

### ee&:fBHBity detemsinstiea HEier 20.2.98.11] }lJ.Y

... C 

### sha:llpfe'Vide te the US**~A** 

### R:egiea 6 Olliee; tile Departmeat; 

### asd, -.-.Me appliealde, sffeeted FedeFBilaad msnegers; the ag8B6y 

### desigDated Willet seeties 174 sfthe FedeM:l Aet; 

### &Bd the ).IPO 

### a thirty {lQ) 

### day aetiee whish 

### deeefiees the prepesed aetiea 8F:d the FedeFB:I agesey's 

### dr...ft eeafeRBity determhatiea ea die 

### aetiea. B. 

### Fedeml agBBey shaH 

### netify the lJS**~A** 

### Regie& 6 

### Offiee; 

### the QepaAmeat; SBd, where appliealde, sffeeted FedefRllRBd maeagers; die ageaey desigaated UDder seetiea 174 efthe F'edeml Aet; aed the**~11?0;** 

### within. thitt=y (39) days 

### after md;ng a 

### fir:al eeefetmity deterriB'tiea WHier 

### 10.2.98.1 

## n NMt'..C. [12/14194; 98/Q2196; 99/98199; 29.2.98.119 }lMAC 

### R<i, 29 }Jl,l/£ 

### 2.98.119 1Ml/Q2J
19.1.!18.111 A. 

### Upee Hflt:lest },y my 

### pefSBB fegardiag a speeitie FedeFB:l aetiea, a Federal agesey sBsll 

### make availaBle fer Fewiew il:n draft eeafeHB:ity 

### detcus:imttiea tmtier 29.1.98.113**~+.).If£** :lith StiflJJBAiBg 

### !Bftteftsls 1

### .rAHek Eleseri9e the**aaal~'tieal** 

### methods, asslHBptieBS, aad eeselusieBB relied UJ!BB iB 

### maldng the applieabilky ara:lysis aBEl dfaft ee&Fermity determiaatien. 

### B. l'

.. 

### Fedeml age&ey shall malee pl:iSl!e its 

### ilraft seaiermity EletBABiB&tiea H:Bder 29.2.98.113**}~** 

### 1-.t'£ by 

### plaeia:g 8 aetiee \Jy 

### premiBeat a&rleftisemeat iB 

### 8 daily sewspapeF ef geeeral ei:Feulatiea ia the ueaB affeeted \Jy 

### the setien SBd hy prEP;idia:g tWrty (3**~** days 

### fer 'llfittea pulllie eemmeot pFiar te 

### 'aNrg &BY 

### feHB8l astian sa the dmft

Proposed Repeal of20.2.98 NMAC 

### 7I 

### 2 3 

### 4 

# s 6 7 8 

### 9 

### 10 

### 11 12 13 14 IS 16 

### 17 18 19 20 21 

### 22 23 24 25 26 27 28 29 30 31 32 

### 33 34 35 36 

### 37 38 39 40 41 42 43 

### 44 45 46 

### 47 48 49 

# so 51 52 53 

### 54 

# ss 56 detcrn:iedies. This 

### eemmest period may he eeBelHfB&t 

### with 8BY ether pahlie i:Rvel-vemeat, sueh as eee\U'H 

### is tile tmPi"z 

### pm eess. G. .•.., Federal agettey shall deel:HBeB:t its respeBBe 

### te all the eemmeats reeeived e& its dr...ft 

### eeafeRBity detnrindiea usd8f 20.2.98.113 )JJ.L'\C 

### a&d md:o 

### t:Be eemmeats 8Bd respeases availahle, upea HEfU:BM 

### hy as.y peFBBB; ngudisg a speeifie PederaJ. 

### aetien,**v.ri~** tiHHy flQ) days 

### efthe fiBal ee&fsfiBHy detendrdies. D. }'.,Federal ageaey sllallmalEe Jftlhlie its 

### fiBe1**eesfa~-** detnrnirdiea l:IBder :19.2.98.113 tJMf

...C fer a Fedeml aetie& hy plaeiflg a aatiee by prembeat ad-t;Bftisement 

### is a daily &eY!6p&per efgeaeH:l eifeulatiea is 

### the 

### &Feas afteete6 hy 

### .Se aetie& wit:BHl tMrty**(3~** 

### d&y& efthe fins' eeafeRBity detet instiea. [12/14194;**Q8~2196;** 2Q.2.98.111 }!MAC R&; 2Q}IMAC**2.98.1111QI31/~2]** 

### 10.1.98.Ul 

### A, +he**eeBfef~Bily** status efa

### Federal aetie& aatem&lieal:ly lapses five 

### (.S) years &em the date 

### a Haal eeBfBRBity detem:irotiea is**~epeRed** 

### Hder 1Q.2.98.11Q }IJ,lh-C 

### Wlless the FedH&I aetiea 

### Me hem eempleted era 

### eeBfiayeas pFegt"&m has 

### heeB eemmeaeed te 

### implemem that 

### Fedef&l aeftea -:lidH:a 

### a**~easeaaBie** time. 

### B. OageiBg F'edeFBl aeHvit:i:ea at 

### a give& site sllewiBg 

### eaBlisueus pFegress BH 

### set aew aetieBB 

### BBd de aet reEtllife pet=iedie redete"=inst:i:eas sa leag 

### as**~e** 

### emiBBiBBB IISSBeiated 

### 'With SBGh aetivities &fS witRi:a the 

### seeps ef the fiBal 

### eaafaHB:it)· deteFJDisatieu repeRed \Hider 2Q.2.98.11Q NMI\C. G, 

### If, 

### aftBFthe eesfeFmiey detem:i-dias is 

### made, the Federalaetiea is 

### eiHmgeElse dlat 

### there 

### iB &B 

### i&erease is 

### die tetal 

### efdireet aad 

### ;sdiRet emissieBB ahe'.•e the levels iB 

### su&seetia& 8 

### ef2Q.2.98.1Q+**~R.L'\C,** a 

### sew eeefaHB:it¥ Eletem:ir?Bea is 

### re'lllired. [12/14194;**Q8~219fi;** 2Q.2.98.11HIMI£ R&; 2Q NMI£ 2.98.112 IM**I~)** 

### 10,1.98.113**~** 

### I'OR DEI'ERMIP!ING**C~UT¥** 91' 

### GKNEII \I, 

### I'EDEII \1. 

### l.£'R:ONSo l'.-, 

### ,'\BasSes reEtlHJ:ed UBder 29.2.98.2 

### NJ.il.rC, 2Q.2.98.10+ NMAC ar2Q.2.98.1Q8 

### NJ.U.rC te 

# u..,e a**ee&fe~** 

### Setefmieatiea fer a &Jieeifie pell\Haift; 

### will he EletSimi&ed te 

### ea&ferm ta the SIP if, 

### fer eaeh pelftttaat**~** 

### exeeeds the rates ia 

### SBbseet:iea 8 

### ef2Q.2.98.1Q7**~R.L'\-G** BF 

### eiJ!eR,;jse HEtuil'es a**eeBfermit~r** 

### detem:isatian due ta the 

### total afdirest 

### aa4 iad!Het emissions &em the 

### aetiea, the astie& meets the RJEtllirements efSllltseetia& C af 20.2.98.113 )Q.Y.

... 

### C, ed meets aay 

### efthe felle-:Jin.g Telll!ifemests: (1) Fer &BY aRteria**pe~** 

### the tetal ef direst ed indkest emissieB& B=em the aetiaa 8f8 

### speeifieally idemHied as4 

### aeeeuated fet iB 

### the SIP's 

### rtdnmeat er =6-ten,nee demeBSttatiea; 

### fl:) Fer Bli!le&e ar nitregBB diex.ide, the tetal efSireet and Hulireet emiBBiaBS ii:em the aeHea are Nlly 

### aft'set withi& the 

### same neBB'*nh=BBt ar mdsteemee BAa 

### &Brough a rer.isi9B to the 

### SIP era meBStlfe similarly e&ferseaBle \Hider State 

### &&6 Fedemll&\v diat eFfeets emissie& JedueBaBB sa 

### that th8fe is 

### ae net iBeJe86e iB 

### emissiens efthat 

### pelkHart· 

### fa) Fer aay eriteria pelluta:n:t, ene&JJt e2ese 8Bd Bitregea dienide, the 

### tetal afdireet and 

### indifeet emissieBB Hem

## th~ aeHea meet the re'fl!iNme&ta: 

## Ea) spesified iB**SY~seetiea** 

### B ef2Q.2.98.113 }11\i:.•:C,**base~** BB 

### ar-ear:lide air Efti&lity m.edeliBg ,cslysis aad 

### lasal air lilutti:ity 

### medeli&g snn'ysis, Bf (IJ) 

### speeified iB 

### pllfBgf&plt (§)**efw~seetiBB** 

### A ef2Q.2.98.113 }IJ,IAC ed, fer leeal air quality 

### medeli&g cn,'ysis the Fe'f'l:ifeF:BBt

### afsu~seetie& B ef2Q.2.98.113 }JJ.MC; ' (4) Fer GQ 

### er**P~UQ,** (a) \ 1

### Jftere the l>epartmest determises that 8B: 

### &Feavlide air**quali~·** 

### modeling analysis is aet needed, the tetal ef difeet aBti 

### iBdireet emissieBB fi:em. the aetiea meet the FeEtUifemeiHB speeitied is 

### suSseetieB B ef2Q.2.98.113 

# mv.c based en leeal aif E!llality 

### medeliBg ana'ysis, er (h) 

### ',\lhere the SepartmeBt detetmises tliat && 

### BAll":lide aH=**Etuali~·** 

### modeling era'ysis is BJ3prepFiate and that a leeal air quality 

### m.edeliflg ?Ps 7

### ysis is &at Reeded, the tetal efdifeet 8Bd ifldifeet emissieBS frem the aetiBB meet the Fequitements SJ'eeified ia 

### suhseetiea 8 

### ef2Q.2.98.11J**~~L** 

### .......

C, based ea &FBIWJide m.edeli&g, er meet the fO<tUil'emeftiB efparagmph (S) efouboeelieB A ef2Q.2.98.11J NM,AC; ef (S) 

### Fer Bi!BBB 

### BF Bitragea ElieKiSe, BREI fer J3lUJ'BSes**efs~aragFBJ~h:** 

### f8.) 

### efpawgrap.B (3) aad suhpamgraph (b) 

### af pllf88Hilh (4) efsuhseelieB A ef2Q.2.98.113 NMAC, eaehpefliea eflhe aelieB e• the aelieB BB a •;Aoele meelo BBY 

### eftke feU

### a NiBg 

### FeEftiifemema; (a) w:hBFe US 8JlA. 

### has appFe,.. ed a revisien te &r: 

### area's attaiumeet er mairte&asee demaestfatien after 199Q O:P:d the 'QepartmBBt 

### makes a detefR!isatieu as J!Fe'Jided is 

### itB:Bl (i) 

### Belew er ·.vkere the :GBJ!nrtm.eat makes a eemm;tme&t BB 

### pre·,;jded is 

### item (ii)**bele~v.** (Q 

### The tetal ef direst &BEl 

### iadireet emissieBB fFem tlte astian (eP pertien thBJ"eef) is determiaed SBd de&Ume&ted by the 

### :9epa:Am:ent**~a** 

### Fesult in 

### a lB"1el ef emissieBB whi.eB,**~egether** 

### vJith all ether emissions iB the senaH:aiameet (er mai&tenaaee) BA3a, 

### waul& set eneeed the emissieea Budgets speeified is 

### tBe SJ.P.

Proposed Repeal of20.2.98 NMAC 8 

# (

# ( I 

### 2 3 4 5 

### 6 7 8 9 10 II 

### 12 13 

### 14 15 16 17 18 19 20 21 22 23 24 25 26

# ,(~ 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 

### 45 46 47 48 49 50 51 52 53 

# c '54 )55



### 56 

### fii) The tetal efdifeet IUld iBEiireet emissiaiHI Hem die aeliea (er peftie& there**a~** 

### is Elelen&i:BeS 

### 131y the 

### I>ep8:111Beat 

### ie feSUlt: ill a ler.-el ef

### em:issieBS 'Nhieh, tegetlie£ 

### tvith all etke£ 

### emissieBS ia die aeM"sb=em (er -dntrnaaee) 

### BN&; 

### Y• elliS Meeed &B 

### emissieBB budget speeified is the GIP 

### aM the Ge'/HBBF er, if

### apprapfiate, the Gevemet!s 

### desigRee fer 

### SIP aetieB8 

### UB:der State 

### law, makes a v:AUea eemmitmest 

### te Y8 8PA whiell 

### iaeh1Eles die fulle'tviegi a) a speeifie 

### sehedule fer adepties 

### a&d Slli:Jmittal efa revisiea te 1:Be SIP whieh wet:Hd aehie"le the aeeded emissies adll6tieBB 

### prier te the time emissiees &em the 

### Feden! aeUes 

### YJeuld eeBU!'; h) ideutifieaties 

### efspeeifie me1811fes fer iBeefl'eRHies iate 

### the SIP 

### wBieh weuld result ia 

### a level ef 

### IHBissieas wllielt; tegether with 

### aU ether 

### emissieBB ia 

### the aerettsir=eat er msjpteeO:Bee area, 

### weald set mteeed a&y 

### emifisieBSlN6get spesified iB the SlP; e) a 

### demellfHfat:iee 

### that all 

### eftisti&g SIP**re&~lliremeats** 

### He heiag im.plemeiHed iB 

### the area fer the pelkHa&t& affeeted hy 

### the PedeFBI aeHea, &Bd dKtt 

### leeal**authe~** 

### te implemest additiesel requiremeat£1 has 

### heea full.y 

### JH1f5Ued; Eij 

### a Eletmrirsftea 

### that the :Fespessihle :Pedeml ageaeiesllar. e re'iuifed all fl88e&a\1le mHigatien me&SW'es asseeiated 

### with dteif aetiea EH a 

### matter efi>epaAmeat peliE:ry, a 

### eemm;HBeDt 

### ·::illhe made ealy 

### ifthe 

### Bepartme&t determi&es 

### that the 

### pFejeet speasefB IHlEl respeBSi\11e Fed8f81 ageseies 

### 1Hv1e sought all**w.~ahle** 

### emiseieas 

### offSets as6 

### made all 

### f888eBS\1ly available medifieatie89**ef~e** 

### aetiea to reduee emissiemij; &Bd e) Wfittea desume!Hatioa iseludisg all ail 'fUI:lity see'yses MlpJIBRiag 

### tJie eeafeRBity detmrisslie&o (iiij 

### 'Nhere a PedBFBI ageaey made a eeafeRBity deterrhntiea hased BB 

### a Depamuem eemm;tmeat eder item:**~ij** 

### abew, sueh a Qepartmem 

### eemmitmeat is autematiea:lly deemed te he a eaU ier &B impleme&laties 

### plas F&\risies \1y 

### US :QPA UBder seeties 119flE)E§) efthe Fedeml s'\et, efleetFJe es 

### tfte date 

### efthe Federel eeafemtHy detemirntie& 

### &BEl Fe(fllirisg refii'BBBB 

### -:lithi:B eightees E18) me&ths 

### er asy shelter time -:litiHB 

### wJHeh the Bepartmeat eemmits te re'/ise the SIP; (IJ) 

### The aetiea (er peftiea tlueeij &B 

### determined 'hy the AIPQ is 

### speeifieally iBsluded 

### in: a eUffeBt lmB&peFtatiea 

### piBB &Bd tfBBsJ!eFtatiea impre**~eme&t** 

### program whish hw;e heea fetHHI te eesfeRB te tke SIP 

### 1JBder 29.2,99 m.l.a"£**{CeafeRBi~** 

### te the**~aate** 

### lmplemematiea 

### PlaB ef +rasspettatiea Plass, Programs, 

### B&d**PFejee~.** 

### (e} The aetiea Earp aRies 

### thef8et:J 

### Billy eifsets 

### its emissieDS withia 

### the same seaa,drmest er =dnternrse area through 

### a revisiea te 

### the SIP er aa 

### e'iually eafereeahle measure tft&t eftests emissiea reduetieBS e'iual te er greater 

### tftBB the tetal 

### efdifest 

### llllEl i&diHet emissieBS from the 

### asHes se tliet**the~e** 

### is sa 

### oet isere&Be is emis&ieos efthat pelhttaet; 

### {d)**\l:!he~e** 

### YS BP-/.o: 1las 

### set approved a 

### f8¥isies te 

### the nle'I&Bt implemest&tie& 

### plaB cttdcrne&t er mainternnee demenstraties sisse 1999, the 

### tetal efdireet IHlEl 

### in direst emissieas frem 

### the aeties far tBe 

### fuNre years (deseri'hed is 

### subseetiea 

### D ef2Q.2.98.114 

### NM.t'".o:C} de aet iseJease emissi9B8 -.rlith respeet te the hBSelise e&HssieBS, 

### llllEI: (i} 

### The haselise emissions refleet the IHsterieal aetP:ily**lw~els** that 

### eeeURed iR the geegraphie BHB 

### aft"eeted by the pfBJIB&ed FedeFal aetiea dBri&g:**~** 

### ealesd&f 

### yeBF 1999, b) 

### The ealesdar 

### year that is die ba&is 

### fer die ei&Bsifieatiea (er, 

### wher-e the elassifieaHeo is Based BB 

### multiple ye8f9, 

### the year 

### that is mast**pepresBBtat:P~e** 

### iB terms efthe ler:el ef astPJit.y1, 

### ifa 

### elassifieaties is premulgated in 1Q CRlpBft 81, er**~The** year 

### efthe 'haseliBe iB'!e&tefj'iB the 

### PM:1G SIP, (ii) 

### The haseliae emissieBS Me the tetalefdi:Feet 

### llllEl iBdireet emissie&S ealeulaled fer the fHtufe yeaFH 

### (desefieed in sllhseetiea Q 

### ef2ll.2.98.1!4 

### }IHI£:) 

## ,..;,g the 

### histerie aoti•Aty le•,.,ls (desoribed ia item (i) 

### efsllhpar&gfOflh (d) ef paragflljlh (S) ef sllhseotiea A ef2Q.2.98.113 :NMAC) aad appropriate emissiea faelefO 

### for !he future 

### years; er (e) \lJheFe 

### tJie aetiea iBvelves regiesal water 8Bdter wastB-\VateJ prejeets, sueh Jlftlj 

### eets BEe 

### sii!ed te 

### meet esly the seeds efpepulaties prejeeHess that 

### &Fe is the 

### SIP, based ea assn=ptiess regMEiisg per ea:pita use that 

### are de·;eleped er apf!rerlefl is 

### aeeeRiac:ee with subseetiea l".o: 

### ef2Q.2.98.114 NM/£. 

### B. Bither the &£ew».ide er leeal air 

### t}ll&lity medelieg mn'yses, BF 

### het&, BHI6t: 

### (1) Meet !he re'llliremeats ia 

### 20.2.98.114 NMAC; 11811 

### fl) Shew that; 

### the aetiea dees set: (ij 

### Cause er seat:rihute te &:&y 

### new ·:ielatiea efasy stanelaftl is 

### &By area; er {ii) 

### Hlerease the fi'eEfUeuey eJ**SE¥~erity** 

### efftftY eJEistiRg vielatien ef8By stBF:dBfd is_,. BFBB. 

### C.**~1etr.vitheta&Eliflg** 

### &BY ether te'IUifemesls efthie seef:ies**E:~Q.2.98.1t:a ~~la'\C),**  BB 

### aetiea suhjeet te 

### this Part may set he determised te eeBfeHB te 

### the SIP unless the tetal ef direst BBd isdiree& emissieiHI frem: the aetiea is in: 

### eemJJlia&ee 

### "'<ith er eeBSiste&t v.rith 

### aU**rele~J&Bt** 

### reEflliremema 8Bd milesteaes eeBtaiBed is die 

### SIP, sash as elemests ide&tified 88 

### part eftlte Fea88BB8le fw1lier JJfegress sehedules, BBT'BftieSB speeified is: 

### tfte attajpmeP:t er mai&teaanee demeBStratiea, prehihitieos, Bt:HBerisal emissiea 'imit:s, asd :urerle praetiee retJ:uireme!Hs. D. 

### •\wt ana'yses ret}1:1ifed l:IBder this seeties (29.2.98.1 H 

### }IJ.iAC) shall**~e** 

### eemJJleted, &Bd BBY mitigatiea refjUiremests neeessBfy fer a fisdiag ef eeafermity must he idestif.ied as**~ei&g** iB 

### eem.JJliaBee 7 

### Jiitk 29.2.98.11§ }D.iAC, 

### hefere tlte determinatiea ef ee&feauity is 

### aule. [12114194; 081Q2196; 20.2.98.113**~!MAC** 

### Ra, 20 }!MAC 2.98.113 !OIJIIQ2J



### Proposed Repeal of20.2.98 NMAC 9I 

### 2 3 

### 4 5 

### 6 

### 7 8 9 10 

### 11 12 

### 13 

### 14 IS 

### 16 17 18 

### 19 20 21 

### 22 

### 23 24 25 

### 26 27 28 29 

### 30 31 

### 32 33 

### 34 35 

### 36 37 

### 38 39 40 

### 41 

### 42 43 

### 44 45 

### 46 

### 47 48 

### 49 

# so 51 52 

### 53 54 55 

### PRQCEDIJRES FOR 111/.dQNC CQNFQRMIT¥ DEn:Rliiii'IATWNS QF CENERAI. 

### ADER.t\1. l..CTIQNS: 

### t Tile 

### ane')'Bes JeEj\l:ired 

### eder this Palt 

### ±an l:Je hased en the latest phrdsg aestHBptiaes. (1) 

### 1'\11 plBBBiBg &Bsumptiess shall he deW. eEl &em die estimates efN'teiH 8Bd fimlfe peydstia&; empleym:mt, 

### Wttvel,**a~u:l** 

### eesgesliea me&t reseatly &ppJB'Jed hy 

### the J.IPO er the ];)eputmeat 

### PIS:JHJ:isg BBS1HRptieas 

### may 

### iaelHde, hm 8:1'1! &et 

### U=ited to, 1:he feUB'Aiag: J'BI' 

### eapita water a&d 

### sewer use, ·lfitiele miles tfaveled per ea:pda er peF**lietH~ekeiEI,** 

### tAp 

### geaeratiea per heHBehel&; vehiele ee&\lpaaey, heBBehelB siile, "Jehiele fleet 

### miK, vehiele B'JJB8F81Hp, 

### weed ste·;es per lteBSelteld; the geegmpiHe distfihu&ea efpepulatiea pewt&, 

### aiHl euReBt 

### BBEl :fimn 

### pept:tlatiea estimates. 

### fl} .'\By 

### RWisieBS te these es*imstes lJBed 

### as put 

### efthe eeBfaABity detembdies, iRelndiBg pfejeeted 

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### Regie& 6 

### l.dlmiris&ater is ebtaised fer &BY 

### medifieatie& er substiwtieB; they may he medified er aaetller teelmi£tUB substmlteEl en a ease by ease basis or, 7AH!re 

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### fer use ill 

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### eaBfeHB:ity BB8eysis as speeified helew: (a) 

### +he US**~-shall** 

### publisk iB 

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### meter veiHele emissieBS medel pre:JieYBly speeified by YS JiP-.l

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### medels, data 

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### ether requiremeats speeified ill

### tlte mast reeest venies efthe "Guide'iBe os 

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### 78**~7** 

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### here a_pprepfiate, BB 

### a geserie Basis fer a 91ieeifie Pederal agBBey pregmm; (l)**\~lAtteR** 

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### asties and 

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### BB6 enfereeme&t efsusft mea&UR!s shall be Seser:ibed, iBeludisg ar. 

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### detemHn:isg that 

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### idee&ified. as eeatiitieDB fer makiag**eeafetmi~·** 

### d:eter irstieBS. Sueh v..mtee

Proposed Repeal of20.2.98 NMAC 10 

# (



# (

# ( I 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 

### 22 23 24 25 26 

# c\ 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 

# ( 

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WSTORY OF 20.2.98 NMAC: Pre-NMAC History: None. History of Repealed Material: fPdlSBRVS)] 20 NMAC 2.98. Conformity OfGeneral Federal Actions To The State Implementation Plan- renealed, XX/XX/2013
Other History: 20 NMAC 2.98, Conformity Of General Federal Actions To The State Implementation Plan, filed 11114/94 was replaced by 20 NMAC 2.98, Conformity OfGeneral Federal Actions To The State Implementation Plan, filed 06/19/96. 20 NMAC 2.98, Conformity OfGeneral Federal Actions To The State Implementation Plan, filed 06/19/96 

### was renumbered, reformatted and replaced by 20.2.98 NMAC, Conformity OfGeneral Federal Actions To 

### 1De State Implementation Plan, effective I0/31/02. 20 NMAC 2.98, Conformity Of General Federal Actions To The State IIDPlementation Plan- repealed, XX/XX/2013

Proposed Repeal of20.2.98 NMAC 

### II

# (



# c

c**~..!}** 48106 Federal Reguter/Vol. 63, No. 174/Wednesday, September 9, 1998/Rules and Regulations

(4) A provider who has collected and not made appropriate refund, or attempts to collect from the beneficiary, any amount in excess of the CHAMPVAdetem:lined allowable amount may pe subject to exclusion from Federal benefit programs. (Authority: 38 U.S.C. 1713) §17.273 PrvauthortzaUon.

Preauthorizatlon or advance approval Is required for any of the following:

(a)**Non~emergent** inpatient mental health and substance abuse care Including admission ofemotionally disturbed chtldren and adolescents to residential treatment centers.

(b) All admissions to a partial hospitalization program (Including alcohol rehabilitation).

(c) Outpatient mental heallh visits In excess of 23 per calendar year and/or more than two (2) sessions per week.

(d) Dental care. (e) Durable medical equipment with a purchase or total rental price in excess of $300.00.

(f) Organ transplants. (Authority: 38 U.S.C. 1713) § 17.274 Coot aharing.

(a) With the exception of services obtained through VA medical facilities, CHAMPVA Is a cost-sharlng program In which the cost of covered**servic~** is shared wllh the beneficiary. In addition to the beneficiary cost share,**~** annual (calendar year) outpatient deductible requirement ($50 per beneficiary or $100 per family) must be satisfied prior to the payment of outpatient benefits. There is no deductible for inpatient services. CHAMPVA pays the CHAMPVA-detennined allowable amount less the deductible, if applicable, and less the beneficiary cost share. To provide financial protection against the impact of a long-term illness or injury, an annual cost llmit or "catastrophic cap" has been placed on the beneficiary cost-share amount for covered services and supplies. This annual cap on cost sharing is $7,500 per CHAMPVA-eligible family. Credits to the annual catastrophic cap are limited to the applied annual deductible(s) and the beneficiary cost-share amount. Costs above lhe CHAMPVA-allowable amount, as well as costs associated with noncovered services are not credited to the catastrophic cap computation.

(b) Ifthe CHAMPVA benefit payment 1s under $1.00, payment will not be issued. Catastrophic cap and deductible will, however, be credited. (Authority; 38 U.S.C. 1713) § 17.275 Claim flllng doedllno. (a) Unless an exception Is granted under paragraph (b) oflhis section, claims for medical services and supplies must be filed with lhe Center no later !han:

(I) One year afler lhe date of service: or(2) 

### In the case of inpatient care, one year afler the date of discharge: or

(3) In the case of retroactive approval for medical services/supplies, 180 days following beneficiary notification of authorization; or

(4) 

### In lhe case of retroactive approval ofCHAMPVA eligibility, lBO days following notification to lhe beneficiary of authorization for services occUlTing an or after the date offirst eligibility.

(b) Requests for an exception to the claim filing deadline must be submitted, in writing, to the Center and include a complete explanation of the circumstances resulting In late filing along wilh all available supporting documentation. Each request for an exception to the claim filing deadline will be reviewed individually and considered on its own merit. The Center Director may grant exceptions to the requitements In paragraph (a) Ifhe or she detem:lines !hat there was good cause for missing lhe filing deadline. For example, when dual coverage exJsts CHAMPVA payment, if any, cannot be detem:lined until afler the primary insurance carrier has adjudicated the claim. In such ctrcumstances an exception may be granted provided that lhe delay on the part of the primary inswance can1er 1s not attributable to the beneficiary. Delays due to provider billing procedures do not constitute a valid basis for an exception. § 17.276 Appaallrevl- proceoo.

Notice of the initial determination regarding payment of CHAMPVA benefits will be provided to the benefidary on a CHAMPVA Explanation of Benefits (EOB) form. The EOB form Is generated by lhe CHAMPVA automated payment processing system. If a beneficiary disagrees with the determination concerning covered services or calculation of benefits, he or she may request reconsideration. Such requests must be submitted to the Center in writing within one year ofthe date of the initial determination. The request must state why the beneficiary believes the decision is in error and must include any new and relevant information not previously considered. Any request for reconsideration that does not identify the reason for dispute will be returned to the claimant without further consideration. After reviewing the claim and any relevant supporting documentation, a CHAMPVA benefits advisor will i:ssue a written detem:lination to the beneficiary !hat affirms, reverses or modifies the previous decision. Iflhe beneficiary Is still dissatisfied, within 90 days of the date ofthe decision he or she may make a written request for review by the Center Director. The Ditector will review the claim, and any relevant supporting docwnentation, and issue a decision in writing that affirms, reverses or modifies the previous decision. The decision of the Director with respect to benefit coverage and computation of benefits Is final. (Authority: 38 U.S.C. 1713)

Note to§ 17.276: Denial ofCHAMPVA benefits based on legal**el~B~bility** requirements may be appealed to the Board or Veterans' Appeals In accordance with 38 CFR part 20. Medical detenntnatlons are not appealable to the Board. 20 CFR 20.101. § 17.2n Thlrd'f'arty llablllly(Modlcara coat "'eovary.

The Center will actively pursue thirdparty liability/medical care cost recovery in accordance with applicable law. § 17.278 Confldantlellty of records.

Confidentiality ofrecords will be maintained In accordance with 38 CFR 1.460 through 1.582. (FR Doc. 98-22857 FUed 9-8-98; 8:45am) BILUNG CODI U21J...4t..P

ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [NM 22-1-7103a; FRL-li152-4J Approval and PromulgaUon of Implementation Plan for New Mexico: General Conformity Rules AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: Tills action conditionally approves a revislon to the New Mexico State Implementation Plan (SIP) !hat contains regulations for implementing and enforcing the general conformity rules which the EPA promulgated on November 30, 1993 (58 FR 63214). Spedfically, the general conformity rules enable the New Mexico Environment Department to review conformity of ail Federal actions (See 40 CFR part 51, subpart W-Detem:linlng Conformity of General Federal Actions to State or Federal Implementation Plans) with the control strategy SIPs


### NMED Exh. 4

### 48107 Federal Register / Vol. 63, No. 174 / Wednesday, September 9, 1998 / Rules and Regulations
submitted for the nonattainment and maintenance areas within the State except for actions within the boundaries of Bernalillo County. This approval action is intended to streamline the conformity process and allow direct consultation among agencies at the local levels. The Federal actions by the Federal Highway Administration and Federal Transit Administration (under Title 23 U.S.C. or the Federal Transit Act) are covered by the transportation conformity rules under 40 CFR part 51, subpart T—Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C. or the Federal Transit Act. The EPA will act on the New Mexico transportation conformity SIP under a separate action.

The EPA is approving this SIP revision under sections 110(k) and 176 of the Clean Air Act (the Act) on the condition that the agreed-to revision is made. The rationale for the approval and other information are provided in this document. DATES : This action is effective on October 9, 1998. ADDRESSES : Copies of the State general conformity SIP and other relevant information are available for inspection during normal business hours at the following locations. Interested persons wanting to examine these documents should make an appointment with the appropriate office at least 24 hours before the visiting day.

Air Planning Section (6PDL), Multimedia Planning and Permitting Division, Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, Texas 75202, Telephone: (214) 665–7214.

Air and Radiation Docket and Information Center, Environmental Protection Agency, 401 M Street, S.W., Washington, D.C. 20460.

Air Quality Bureau, New Mexico Environment Department, 1190 St. Francis Drive, Santa Fe, New Mexico 87502, Telephone: (505) 827–0042. FOR FURTHER INFORMATION CONTACT: Mr. J. Behnam, P.E., Air Planning Section (6PDL), Multimedia Planning and Permitting Division, Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, Texas 75202, Telephone: (214) 665–7247. SUPPLEMENTARY INFORMATION : I. Background

Section 176(c) of the Act requires that all Federal actions conform to an applicable implementation plan. Conformity is defined in section 176(c) of the Act as conformity to the SIP’s purpose of eliminating or reducing the severity and number of violations of the National Ambient Air Quality Standards and achieving expeditious attainment of such standards, and that such activities will not: (1) Cause or contribute to any new violation of any standard in any area, (2) increase the frequency or severity of any existing violation of any standard in any area, or (3) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area.

As required by section 176(c) of the Act, EPA published the final general conformity rules on November 30, 1993 (58 FR 63214), which are codified under 40 CFR part 51 subpart W—Determining Conformity of General Federal Actions to State or Federal Implementation Plans. The general conformity rules require the States and local air quality agencies (where applicable) to adopt and submit a general conformity SIP revision to EPA no later than November 30, 1994.

On November 17, 1994, the Governor of New Mexico submitted a SIP revision in accordance with 40 CFR part 51, subpart W that contained the general conformity rule. The SIP revision was adopted by the New Mexico Environmental Improvement Board on November 10, 1994, after appropriate public participation and interagency consultation. The EPA could not approve this submittal because it was not consistent with the requirements of 40 CFR part 51. Subsequently, the Governor of New Mexico submitted a completely revised SIP on July 18, 1996, which revised the rule and included a completely recodified set of general conformity regulations. The revised and recodified SIP revision was adopted by the New Mexico Environmental Board on June 14, 1996.

The EPA published a direct final approval action on March 26, 1997 (62 FR 14332) for approval of the New Mexico general conformity SIP, and EPA concurrently published a proposed action on March 26, 1997 (62 FR 14382), to allow interested parties to submit comments, if any. During the public comment period, EPA received one adverse comment from FAA. Subsequently, EPA withdrew the direct final approval action on May 28, 1997 (62 FR 28806). II. Response to Public Comments

During the public comment period, EPA received an adverse comment from FAA opposing approval of the New Mexico general conformity SIP without certain revisions to the reporting requirements of the State rule. The following paragraphs present the commenter’s remarks and EPA’s response.

Comment —The commenter noted that 40 CFR 51.851 allows the State to establish more stringent criteria and procedures only if they apply equally to non-Federal as well as Federal entities. The commenter contended that Section 20 NMAC 2.98.110.C of the State regulation would make the State general conformity rule more stringent than the Federal rule and, as there are not similar reporting requirements or subsequent penalties for non-Federal entities, the section should be removed.

The commenter also noted that the possible reduction of the FAA’s emission budget by 50 percent may indirectly impact interstate air carrier services. Therefore, according to the commenter, Section 110.C of the proposed rules is Federally preempted by Section 41713 of Title 49 of the United States Code. Further, the commenter argued, the police powers of the State with respect to aircraft operations are also subject to Federal preemption. The commenter also argued that by its potential to reduce flights into and out of the State of New Mexico, Section 110.C of the proposed rules violates the Commerce Clause of the United States Constitution.

Response: The EPA has reviewed the FAA comments and examined provisions of the Act and general conformity rule pertaining to Section 110.C of the State rule. The EPA did not find any statutory or regulatory provisions similar to Section 110.C. In addition, a review by the State of New Mexico Environment Department indicated that the provisions of Section 110.C would not be appropriate since the State never intended their requirements to be more stringent than the Federal requirements. Subsequently, the State agreed to remove Section 110.C from its general conformity rule, making the State rule consistent with the Federal rule. This action by the State satisfactorily addresses the FAA concerns. III. Conditions and Commitments

Review of the State rule, the public comment, and the State’s evaluation of its rule indicated that Section 110.C of the State rule makes the New Mexico general conformity rule more stringent than the Federal rule. Since the State’s original intention was to make the general conformity rule requirements, including the provisions of Section 110.C, applicable to the Federal actions only, EPA has determined that Section 110.C is not consistent with the Federal rule 40 CFR 51.851 that specifies more stringent criteria and procedures must

### 48108 Federal Register / Vol. 63, No. 174 / Wednesday, September 9, 1998 / Rules and Regulations apply equally to non-Federal as well as Federal entities.

After EPA’s consultation with the State, the State has agreed to correct this inconsistency by removing Section 110.C from its general conformity rule. In a letter dated April 22, 1998, from the Chief of the Air Quality Bureau, New Mexico Environment Department, to the EPA Region 6 Office, the State commits to remove Section 110.C from its general conformity rule and submit a SIP revision to EPA within twelve (12) months from the date of this notice, September 9, 1999. The EPA accepted this commitment from the State because EPA believes that the State has shown a good faith effort in complying with the SIP requirements, and this minor inconsistency was not intentionally added to the regulations. The State’s commitment letter will allow EPA to proceed with a conditional approval while the State is preparing the appropriate corrections for submission of a SIP revision.

The EPA has determined that New Mexico’s general conformity rule meets the Federal requirements except the provisions of Section 110.C as cited above. Therefore, EPA is conditionally approving this SIP revision until the State makes the appropriate corrections and submits a SIP revision before the date specified above. If the State does not submit a SIP revision for removal of Section 110.C by the date specified in this Section of this action, this conditional approval will automatically be converted to a disapproval on the date specified above and as further discussed in Section IV of this action. IV. Final Action

The EPA is conditionally approving a revision to the New Mexico general conformity SIP revision based on the rationale elaborated in this action. The general conformity rule is applicable to all nonattainment and maintenance areas within the State, outside the boundaries of Bernalillo County. The EPA has evaluated this SIP revision and has determined that the State has fully adopted the provisions of the Federal general conformity rule in accordance with 40 CFR part 51, subpart W, with one exception as noted in Sections II and III of this action. The State has undertaken appropriate public participation and interagency consultations during development and adoption of the rules at the local level.

The EPA is approving this SIP revision, based on the State’s April 22, 1998, commitment letter and on the condition that the State will adopt and submit a revised general conformity rule which will contain the corrections detailed in this action (see Sections II and III) within 12 months of this final approval action, but not later than September 9, 1999. If the State fails to submit a SIP revision, as committed in the letter of April 22, 1998, for removal of Section 110.C by September 9, 1999, this conditional approval under section 110(k) of the Act will automatically be converted to a disapproval on that date, and the sanctions clock will begin. If the State does not submit a SIP, and EPA does not approve the SIP on which the disapproval was based within 18 months of the disapproval, EPA must impose the sanctions under section 179 of the Act. V. Administrative Requirements A. Executive Orders (E.O.) 12866 and 13045

The Office of Management and Budget has exempted this regulatory action from E.O. 12866, entitled ‘‘Regulatory Planning Review.’’ This rule is not subject to E.O. 13045, entitled ‘‘Protection of Children from Environmental Health Risks and Safety Risks,’’ because it is not an ‘‘economically significant’’ action under E.O. 12866. B. Regulatory Flexibility

The Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq. , generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entitiesinclude small businesses, small not-forprofit enterprises, and small governmental jurisdictions. This rule will not have a significant impact on a substantial number of small entities because conditional approvals of SIP submittals under section 110 and subchapter I, part D of the Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not impose any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Act forbids EPA to base its actions concerning SIPs on such grounds. See Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255–66 (1976); 42 U.S.C. 7410(a)(2). If the conditional approval is converted to a disapproval under section 110(k) of the Act, based on the State’s failure to meet the commitment, it will not affect any existing State requirements applicable to small entities. Federal disapproval of the Statesubmittal does not affect its stateenforceability. Moreover, EPA’s disapproval of the submittal does not impose a new Federal requirement. Therefore, I certify that this disapproval action will not have a significant economic impact on a substantial number of small entities because it does not remove existing requirements nor does it substitute a new Federal requirement. C. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995, signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

The EPA has determined that this approval action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves preexisting requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action. D. Submission to Congress and the Comptroller General

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 of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller

### 48109 Federal Register / Vol. 63, No. 174 / Wednesday, September 9, 1998 / Rules and Regulations General of the United States prior to publication of the rule in the Federal Register. This rule is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). E. Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 9, 1999. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review, nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2). List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide, General conformity, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Volatile organic compounds.

Dated: August 14, 1998. Jerry Clifford, Acting Regional Administrator, Region 6.

Part 52, chapter I, title 40 of the Code of Federal Regulations 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. In § 52.1620(c) the first table is amended by adding a new entry in numerical order to read as follows: § 52.1620 Identification of plan. * * * * *

(c) * * *



### EPA APPROVED 

### N EW 

### M EXICO 

### R EGULATIONS

State citation Title/subject State approval/effective date EPA approval date Comments New Mexico Administrative Code (NMAC) Title 20—Environment Protection Chapter 2—Air Quality

* * * * * * * Part 98

..................................... General Conformity

................. 08/02/96 September 9, 1998

................. Conditional approval expires on September 9, 1999.

* * * * *

3. Section 52.1623 is added to read as follows: § 52.1623 Conditional approval.

(a) General Conformity. (1) A letter, dated April 22, 1998, from the Chief of Air Quality Bureau New Mexico Environment Department to the EPA Regional Office, commits the State to remove Section 110.C from its rule for making the State’s rule consistent with Federal rule. Specifically, the letter states that:

This letter is regarding our general conformity rule, 20 NMAC 2.98—Conformity of General Federal Actions to the State Implementation Plan. We have been reviewing paragraph 110.C under Section 110—Reporting Requirements. This is the paragraph in which the Federal Aviation Administration (FAA) had submitted a comment of concern to EPA, during EPA’s proposed/final approval period for our rule. This comment caused EPA to withdraw its approval. The FAA had commented that New Mexico was more stringent than EPA, since our rule does not apply to non-Federal agencies. Our analysis has determined that our inclusion of this paragraph may make our rule more stringent than EPA, and should not have been included. The paragraph had originally come from a STAPPA/ALAPCO model rule. New Mexico had never intended to be more stringent than EPA with regards to general conformity. Hence, the State commits to putting 20 NMAC 2.98 on our regulatory agenda and plan to delete this paragraph within one year from the Federal Register publication of final notice of conditional approval to New Mexico’s general conformity SIP.

(2) If the State ultimately fails to meet its commitment to remove this section from its rule within one year of publication of this conditional approval, then EPA’s conditional action will automatically convert to a final disapproval.

(b) [Reserved] [FR Doc. 98–23330 Filed 9–8–98; 8:45 am] BILLING CODE 6560–50–U
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [OPP–300704; FRL–6024–1] RIN 2070–AB78 Acrylic Acid Terpolymer, Partial Sodium Salts; Tolerance Exemption AGENCY: Environmental Protection Agency (EPA). ACTION : Final rule. SUMMARY: This regulation establishes an exemption from the requirement of a tolerance for residues of acrylic acid terpolymer, partial sodium salts when used as inert ingredients (dispersant) in pesticide formulations applied to growing crops, raw agricultural commodities after harvest, and animals. BF Goodrich Specialty Chemicals requested this exemption from the requirement of a tolerance under the Federal Food, Drug and Cosmetic Act, as amended by the Food Quality Protection Act of 1996. DATES : This regulation is effective September 9, 1998. Objections and requests for hearings must be received by EPA on or before November 9, 1998. ADDRESSES : Written objections and hearing requests, identified by the docket control number, [OPP–300704], must be submitted to: Hearing Clerk (1900), Environmental Protection Agency, Rm. M3708, 401 M St., SW., Washington, DC 20460. Fees accompanying objections and hearing requests shall be labeled ‘‘Tolerance Petition Fees’’ and forwarded to: EPA Headquarters Accounting Operations Branch, OPP (Tolerance Fees), P.O. Box 360277M, Pittsburgh, PA 15251. A copy of any objections and hearing requests filed with the Hearing Clerk identified by the docket control number, [OPP– 300704], must also be submitted to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 401 M St., SW.,

# c Monday, April 

## 5, 2010



# Part 

# m 

# Environmental Protection Agency
40 CFR Parts 

### Sl and 93 Revisions to 

### the General Conformity Regulations; Final Rule



### NMEDExh. 5

### 17254 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
**ENVIRONMENTAL PROTECTION AGENCY**  **40 CFR Parts 51 and 93 [EPA–HQ–OAR–2006–0669; FRL–9131–7]**  **RIN 2060–AH93 Revisions to the General Conformity**  **Regulations AGENCY** **:** Environmental Protection Agency (EPA). **ACTION :**  Final rule. **SUMMARY :**  The EPA is revising its regulations relating to the Clean Air Act (CAA) requirement that Federal actions conform to the appropriate State, tribal or Federal implementation plan (SIP, TIP, or FIP) for attaining clean air (‘‘General Conformity’’). EPA and other Federal agencies have gained experience with the implementation of the existing regulations, which were promulgated in 1993 (and underwent minor revisions in 2006), and have identified several issues with their implementation. In addition, in 2004, EPA issued regulations to implement the revised ozone national ambient air quality standards (NAAQS) and in 2007 issued regulations to implement the new fine particulate matter standard. State and other air quality agencies are in the process of developing revised plans to attain the new standards and the revisions to the General Conformity Regulations will be helpful to the State, Tribe, and local agencies in developing, and Federal agencies in commenting, on the proposed SIPs revisions. This rule revision will also facilitate Federal agency compliance with conforming its activities to the SIPs thereby preventing violations of the NAAQS. This rule revision provides for a timely and effective process for Federal agencies and States and Tribes to ensure Federal activities are incorporated in these SIPs. Where that is not possible, it provides an efficient and effective process for Federal agencies to ensure their actions do not cause or contribute to a violation of the NAAQS or interfere with the purpose of a SIP, TIP or FIP to attain or maintain the NAAQS. **DATES :**  This action is effective on July 6, 2010. **ADDRESSES :**  EPA has established a docket for this rulemaking under Docket ID No. EPA–HQ–OAR–2006–0669. All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http:// www.regulations.gov or in hard copy at the EPA Docket Center EPA/DC, EPA West, Room 3334, 1301 Constitution Avenue, Northwest, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744, and the telephone number for the EPA Docket Center is (202) 566–1742. **FOR FURTHER INFORMATION CONTACT :**  Mr. Thomas Coda, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539–02, Research Triangle Park, NC 27711, phone number (919) 541– 3037 or by e-mail at coda.tom@epa.gov or Mr. H. Lynn Dail, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539–02, Research Triangle Park, NC 27711, phone number (919) 541– 2363 or by e-mail at dail.lynn@epa.gov. **SUPPLEMENTARY INFORMATION :**  I. General Information A. Does this action apply to me?

Entities affected by this rule include Federal agencies and public and private entities that receive approvals or funding from Federal agencies such as airports and seaports. B. How is this preamble organized?

The information presented in this preamble is organized as follows: Outline I. General Information

A. Does this action apply to me? B. How is this preamble organized? C. When did EPA propose these revisions

to the General Conformity Regulations? D. Where can I obtain additional

information? II. Background

A. What is General Conformity and how

does it affect air quality? B. Why is EPA revising these regulations

at this time? III. How are the existing regulations implemented? A. Applicability Analysis B. Conformity Determination C. Review Process IV. Comments Submitted on the Proposed Rule V. Summary of the Final Revisions and Clarifications of the General Conformity Regulations A. Overview of Revisions to the General

Conformity Regulations B. What Innovative and Flexible

Approaches Are Being Finalized? C. What Burden Reduction Measures Are Being Finalized? D. What Revisions Provide Tools and

Guidance for Transitioning to New or Revised NAAQS? E. What Revisions Are Being Finalized at

the Request of Other Agencies? F. What Are Some of the Clarifications to

the Existing Regulations That Are Being Finalized? VI. Detailed Discussion of the Final Revisions to and Clarifications of the General Conformity Regulations A. 40 CFR Part 51, Subpart W—

Determining Conformity of General Federal Actions to State or Federal Implementation Plans B. 40 CFR 93.150—Prohibition C. 40 CFR 93.151—SIP Revision D. 40 CFR 93.152—Definitions E. 40 CFR 93.153—Applicability Analysis F. 40 CFR 93.154—Federal Agencies

Responsibility for a Conformity Determination G. 40 CFR 93.155—Reporting

Requirements H. 40 CFR 93.156—Public Participation I. 40 CFR 93.157—Re-Evaluation of

Conformity J. 40 CFR 93.158—Criteria for Determining

Conformity for General Federal Actions K. 40 CFR 93.159—Procedures for

Conformity Determinations for General Federal Actions L. 40 CFR 93.160—Mitigation of Air

Quality Impacts M. 40 CFR 93.161—Conformity

Evaluations for Installations With Facility-Wide Emission Budget N. 40 CFR 93.162—Emissions Beyond the

Time Period Covered by the Applicable SIP or Tribal Implementation Plan (TIP) O. 40 CFR 93.163—Timing of Offsets and

Mitigation Measures P. 40 CFR 93.164—Inter-Precursor Offsets

and Mitigation Measures Q. 40 CFR 93.165—Early Emission

Reduction Credit Program VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory

Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation

and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of

Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That

Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer

Advancement Act J. Executive Order 12898: Federal Actions

To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act L. Judicial Review VIII. Statutory Authority


### 17255 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations C. When did EPA propose these revisions to the General Conformity Regulations?

The EPA proposed the revised General Conformity Regulations in the Federal Register on January 8, 2008 at 73 FR 1402. D. Where can I obtain additional information?

In addition to being available in the docket, an electronic copy of this final rule is also available on the worldwide web. Following signature by the EPA Administrator, a copy of this notice will be posted at http://www.epa.gov/oar/ genconform/regs.htm. II. Background A. What is General Conformity and how does it affect air quality?

The intent of the General Conformity requirement is to prevent the air quality impacts of Federal actions from causing or contributing to a violation of the NAAQS or interfering with the purpose of a SIP, TIP, or FIP.

In the CAA, Congress recognized that actions taken by Federal agencies could affect State, Tribal, and local agencies’ ability to attain and maintain the NAAQS. In section 176(c) (42 U.S.C. 7506) of the CAA, Congress established requirements to ensure Federal agencies proposed actions conform to the applicable SIP, TIP or FIP for attaining and maintaining the NAAQS. That section requires Federal entities to find that the emissions from the Federal action will conform to the purposes of the SIP, TIP or FIP or not otherwise interfere with the State’s or Tribe’s ability to attain and maintain the NAAQS.

The CAA Amendments of 1990 clarified and strengthened the provisions in section 176(c). Because certain provisions of section 176(c) apply only to highway and mass transit funding and approval actions, EPA published two sets of regulations to implement section 176(c). The Transportation Conformity Regulations, first published on November 24, 1993 (58 FR 62188) and revised on July 1, 2004 at 69 FR 40004, May 6, 2005 at 70 FR 24280 and March 10, 2006 at 71 FR 12468, and January 24, 2008 at 73 FR 4420, address Federal actions related to highway and mass transit funding and approval actions. The General Conformity Regulations, published on November 30, 1993 (58 FR 63214), cover all other Federal actions. B. Why is EPA revising these regulations at this time?

On July 17, 2006 at 71 FR 40420, EPA revised the General Conformity Regulations to include de minimis emission levels for particulate matter with an aerodynamic diameter equal to or less than 2.5 microns (PM2.5) and its precursors. Otherwise, EPA has not revised the General Conformity Regulations since they were promulgated in 1993. Since that time, EPA and other Federal agencies have gained experience with the implementation of the existing regulations and have identified several issues with their implementation. To address these issues, EPA initiated a process to review, revise and streamline the regulations. In addition, EPA is in the process of developing regulations to implement the revised ozone standard and regulations to implement the new particulate matter standard. In the near future, State and local air quality agencies will be required to develop revised SIPs to attain these new standards. Knowledge of the revised General Conformity Regulations will be helpful to the State, Tribal, and local agencies in the SIP development process as well as the Federal agencies in commenting on the proposed SIP revisions. This rule revision will also facilitate Federal agency compliance with conforming its activities to the SIPs and thereby preventing violations of the NAAQS. III. How are the existing regulations implemented?

Federal agencies and other parties involved in the conformity process have found that in implementing the existing General Conformity Regulations their process falls into three phases: (A) Applicability analysis, (B) Conformity determination, and (C) Review process. Besides ensuring that the Federal actions are in conformance with the SIP, the regulations encourage consultation between the Federal agency and the State or local air pollution control agencies before and during the environmental review process.

The existing regulations do not specifically identify the roles of Indian Tribes in the General Conformity process or the connection between the regulations and TIPs. In the revised regulations, EPA has specifically identified tribal agencies as stakeholders in the conformity process such as requiring specific notification for any federally recognized Tribes in the nonattainment or maintenance area where the action is occurring. In addition, the revised regulations also clarify that Federal actions must conform to any applicable TIP. A. Applicability Analysis

The National Highway System Designation Act of 1995 (Pub. L. 104– 59) added section 176(c)(5) to the CAA to limit applicability of the conformity programs only to areas designated as nonattainment under section 107 of the CAA and maintenance areas established under section 175A of the CAA. Therefore, only actions which cause emissions in designated nonattainment and maintenance areas are subject to the regulations. In addition, the regulations recognize that the vast majority of Federal actions do not result in a significant increase in emissions and, therefore, include a number of exemptions such as de minimis emission levels based on the type and severity of the nonattainment problem.

In the applicability analysis phase, the Federal agency determines:

1. Whether the action will occur in a nonattainment or maintenance area;

2. Whether one or more of the specific exemptions apply to the action;

3. Whether the Federal agency has included the action on its list of
‘‘presumed to conform’’ actions;

4. Whether the total direct and indirect emissions are below or above the de minimis levels; and/or

5. Where the facility has an emission budget approved by the State or Tribe as part of the SIP or TIP, the Federal agency determines if the emissions from the proposed action are within the budget.

If the action will cause emissions above the de miminis in any nonattainment or maintenance area and the action is not otherwise exempt,
‘‘presumed to conform,’’ or included in the existing emissions budget of the SIP or TIP, the agency must conduct a conformity determination before it takes the action. B. Conformity Determination

When the applicability analysis shows that the action must undergo a conformity determination, Federal agencies must first show that the action will meet all SIP control requirements such as reasonably available control measures, and the emissions from the action will not cause a new violation of the standard, or interfere with the timely attainment of the standard, the maintenance of the standard, or the area’s ability to achieve an interim emission reduction milestone. Federal agencies then must demonstrate conformity by meeting one or more of the methods specified in the regulation for determining conformity:


### 17256 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations 1. Demonstrating that the total direct and indirect emissions are specifically identified and accounted for in the applicable SIP,

2. Obtaining a written statement from the State, Tribe or local agency responsible for the SIP or TIP documenting that the total direct and indirect emissions from the action along with all other emissions in the area will not exceed the SIP emission budget,

3. Obtaining a written commitment from the State or Tribe to revise the SIP or TIP to include the emissions from the action,

4. Obtaining a statement from the metropolitan planning organization (MPO) for the area documenting that any on-road motor vehicle emissions are included in the current regional emission analysis for the area’s transportation plan or transportation improvement program,

5. Fully offsetting the total direct and indirect emissions by reducing emissions of the same pollutant or precursor in the same nonattainment or maintenance area, or

6. Conducting air quality modeling that demonstrates that the emissions will not cause or contribute to new violations of the standards, or increase the frequency or severity of any existing violations of the standards. Air quality modeling cannot be used to demonstrate conformity for emissions of ozone precursors or nitrogen dioxide (NO2). As stated in EPA’s proposal of the 1993 regulations (58 FR 13845), due to the complex interaction of the ozone precursors, the regional nature of the ozone and NO2 problems, and limitations of current air quality models, it is not generally appropriate to use an air quality model to determine the impact on ozone or NO2 concentrations from a single emission source or a single Federal action. C. Review Process

As public bodies, Federal agencies must make their conformity determinations through a public process. The General Conformity Regulations require Federal agencies to provide notice of the draft determination to the applicable EPA Regional Office, the State and local air quality agencies, the local MPO and, where applicable, the Federal Land Manager(s)(FLM). In addition, the regulations require Federal agencies to provide at least a 30-day comment period on the draft determination and make the final determination public. State agencies and the public can appeal the final determination in the U.S. Courts system. Failure by a Federal agency to follow the substantive and procedural General Conformity requirements can result in an adverse court decision if challenged. IV. Comments Submitted on the Proposed Rule

The proposed rule on the ‘‘Revisions to the General Conformity Regulations’’ was issued on January 8, 2008 (73 FR 1402). The EPA received 65 letters from State and local governments, Federal agencies, environmental groups, and private citizens commenting on the proposed regulations. Some of the comments are discussed in section VI of this notice as they were relevant to the detailed discussion of revisions. The EPA has included a response to comments document which addresses all of the timely comments received on the proposed rule in the docket of this rulemaking action (See Docket No. EPA–HQ–OAR–2006–0669). V. Summary of the Final Revisions and Clarifications of the General Conformity Regulations A. Overview of Revisions to the General Conformity Regulations

In accordance with the requirements of section 176(c)(4)(C) of the CAA, when EPA promulgated General Conformity Regulations in 1993 in 40 CFR 93 subpart B (sections 150 to 160), it also promulgated regulations at 40 CFR part 51, subpart W (sections 850–860) which required States to adopt and submit SIPs for General Conformity. In August 2005, Congress passed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU) which eliminated the requirement for States to adopt and submit General Conformity SIPs. Therefore, EPA is revising its regulations to make the adoption and submittal of the General Conformity SIP or TIP optional for the State or Tribe.

Because 40 CFR part 51, subpart W (§§ 51.850–51.860) essentially duplicates the regulations promulgated at 40 CFR part 93, subpart B (§§ 93.150– 93.160), EPA is deleting all of subpart W except for § 51.851. In the revision to § 51.851, EPA is requiring that if a State or Tribe submits a General Conformity SIP or TIP that it be consistent with the requirements of 40 CFR part 93, subpart B. The EPA added paragraph (f) to 40 CFR 51.851 to allow the States and Tribes to develop their own ‘‘presumed to conform’’ list for actions covered by their conformity SIPs or TIPs.

In 40 CFR part 93, subpart B, EPA is making specific revisions to the regulations which (1) Clarify the process, (2) delete outdated or unnecessary requirements, (3) authorize innovative and flexible approaches, (4) reduce the paperwork burden, (5) provide transition tools for implementing new standards, (6) address issues identified by implementing agencies, and (7) provide a better explanation of regulations and policies.

Several of the revisions encourage both the Federal agencies and the States or Tribes to take actions in advance of the project environmental review. Such advance action should speed the review process for the individual projects and reduce the delays for the project without impairing the environmental review. This is discussed in more detail in section VI below. B. What Innovative and Flexible Approaches Are Being Finalized?

1. The EPA is adding a new section(40 CFR 93.161) to allow for a facilitywide emission budget approach. Under this voluntary arrangement, Federal agencies, in anticipation of future major actions, may negotiate a facility-wide emission budget with the appropriate State, tribal, or local air quality agency responsible for the SIP or TIP. The State, tribal, or local agency could incorporate the facility-wide emission budget into the applicable SIP or TIP and submit it to EPA for approval. After EPA approves the SIP or TIP, any action at the facility can be ‘‘presumed to conform’’ provided that the emissions from the proposed action along with all other emissions at the facility are within the EPA approved facility-wide emission budget and a conformity determination would not be necessary. Alternatively, a facility with an approved facility-wide emission budget could demonstrate conformity by the conventional methods afforded in the General Conformity Regulations. For example, once approved, minor actions under the control of the facility where an applicability analysis results in a determination that the emissions are below a de minimis threshold could proceed with no conformity determination.

2. The EPA is adding a new section (40 CFR 93.165) to explicitly incorporate the use of early emission reduction credits into the regulations. The proposal reflects the provisions established by Congress in Federal Aviation Administration (FAA) Reauthorization Act of 2003 for the Airport Early Emission Reduction Credit (AERC) program and the guidance to implement that program. The revised regulations provide a similar framework for other Federal agencies.

3. The EPA is adding a new section (40 CFR 93.164) to allow, with certain limitations, the emission of one


### 17257 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations

1 Wayson, Roger, and Fleming, Gregg,
‘‘Consideration of Air Quality Impacts by Airplane Operations at or Above 3000 feet AGL,’’ Volpe National Transportation Systems Center and FAA Office of Environment & Energy, FAA–AEE–00–01– DTS–34, September 2000. http://www.faa.gov/ regulations

_ policies/policy

_ guidance/envir

_ policy/. precursor of a criteria pollutant to be mitigated or offset by the reduction in the emissions of another precursor of that pollutant.

4. The EPA is adding a new section (40 CFR 93.163) to allow alternate schedules for mitigating emissions increases. The mitigation timing approach allows some flexibility for Federal agencies and States or Tribes to negotiate a program for some emissions mitigation to occur in future years. States or Tribes can allow this approach to accommodate short-term increases in emissions if they believe a substantial long-term reduction in emissions will result from a Federal action. C. What Burden Reduction Measures Are Being Finalized?

1. The EPA is deleting the provision in the existing regulation (40 CFR 93.153) that requires Federal agencies to conduct a conformity determination for regionally significant actions where the direct and indirect emissions of any pollutant represent 10 percent or more of a nonattainment or maintenance area’s emissions inventory for that pollutant, even though the total direct and indirect emissions from the actions are below the de minimis emission levels or the actions are otherwise
‘‘presumed to conform’’

.

2. The EPA is adding in 40 CFR 93.153 new types of actions that Federal agencies can include in their ‘‘presumed to conform’’ lists and EPA is also permitting States or Tribes to establish in their General Conformity SIPs or TIPs
‘‘presumed to conform’’ lists for actions within their State or tribal area.

3. The EPA is finalizing an exemption in 40 CFR 93.153 for the emissions from stationary sources permitted under the minor source New Source Review (NSR) programs similar to the EPA’s existing General Conformity regulation which already provides for exemptions for emissions from major NSR sources. D. What Revisions Provide Tools and Guidance for Transitioning to New or Revised NAAQS?

1. The EPA is adding a definition in the regulation (40 CFR 93.152) for ‘‘Take or start the Federal action’’ to help Federal agencies determine what, if any, conformity requirements apply when an area is designated or re-designated as nonattainment.

2. The EPA is adding requirements (40 CFR 93.153(k)) for the implementation of the statutory grace period for newly designated nonattainment areas.

3. The EPA is adding alternate methods (40 CFR 93.162) to demonstrate conformity for time periods beyond those covered by the SIP or TIP. The EPA is also allowing States or Tribes to include an enforceable commitment in the SIP or TIP to address future emissions from a Federal action. E. What Revisions Are Being Finalized at the Request of Other Agencies?

1. As part of EPA’s efforts to finalize an Air Quality Policy on Wildland and Prescribed Fires, which was undertaken in consultation with FLMs, EPA took comment on two possible approaches: To include a presumption of conformity for (1) prescribed fires conducted in accordance with a State certified smoke management programs (SMPs) which meets the requirements of EPA’s Interim Air Quality Policy on Wildland and Prescribed Fires or an equivalent replacement EPA policy, or (2) prescribed fires conducted in accordance with a State certified SMPs which meets the requirements of EPA’s Interim Air Quality Policy on Wildland and Prescribed Fires or an equivalent replacement EPA policy or, in the absence of a State certified SMP, where the Federal agency has obtained written assurance from the State prior to the burn that the planned burn employs State approved basic smoke management practices (BSMP). EPA is finalizing option 1 to include a presumption of conformity for prescribed fires that are conducted in compliance with SMPs (40 CFR 93.153(i)(2)), with recognition that prescribed fires employing BSMPs may be able to meet a presumption of conformity if such a presumption is established by an agency following the requirements of 93.153(g) or by a State following the requirements of 51.851(f). In the absence of such SMPs, we encourage States and Federal agencies to work together to develop and finalize SMPs or to include prescribed fires conducted in accordance with BSMPs as presumed to conform actions in the applicable SIP. In addition, Federal agencies could undertake actions in accordance with 40 CFR 93.153(f) and (g) to include prescribed fires conducted in accordance with specific BSMPs as actions that are presumed to conform.

2. The EPA is finalizing the proposal (40 CFR 93.158) to allow Federal agencies to obtain emission offsets for general conformity purposes from another nearby nonattainment or maintenance area of equal or higher nonattainment classification provided the emissions from that area contribute to violation of the NAAQS in the area where the Federal action is located or, in the case of maintenance areas, the emissions from the nearby area contributed in the past to the violations in the area where the Federal action is occurring.

3. At the request of several Federal agencies, EPA is clarifying the language in the regulation that states that nothing in these regulations (40 CFR 93.155 and 40 CFR 93.156) requires the release of materials and other information where disclosure is restricted by law. Also, EPA is including a similar clarification for CBI.

4. Several Federal agencies and others involved in the General Conformity process suggested that EPA should consider exempting construction activity emissions from the conformity regulations requirements (40 CFR 93.153). Although the existing General Conformity Regulations do not specifically mention construction emissions, they implicitly require Federal agencies to include emissions from construction activities in the conformity evaluation.

The EPA understands these concerns and, in the discussion about the revision to the definition of ‘‘caused by,’’ has identified a number of ways that Federal agencies can work with the State, Tribe, and local agencies to address construction emissions in the General Conformity assessment. However, EPA is not finalizing an exemption for construction emissions in the revisions and is instead affirming that emissions from construction activities must be considered in a conformity evaluation.

5. At the request of the FAA, EPA is codifying one of the examples contained in the preamble to the existing General Conformity Regulations (58 FR 63229) that stated, ‘‘the EPA believes that the following actions are illustrative of de minimis actions: * * * Air traffic control activities and adopting approach, departure and enroute procedures for air operations.’’ The FAA conducted a study of ground level concentrations caused by elevated aircraft emissions released above ground level (AGL) using EPA-approved models and conservative assumptions. 1 The study concluded that aircraft operations at or above the average mixing height of 3,000 feet AGL have a very small effect on ground level concentrations and could not directly result in a violation of the NAAQS in a local area. Consequently, this study supports the example provided in EPA’s initial preamble language for air traffic control activities and adopting approach,


### 17258 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations departure and enroute procedures for aircraft operations above the mixing height. As some of the commenters noted, the mixing height for some areas can vary and some SIPs and TIPs identify a specific mixing height to be used. Therefore, EPA’s final rule (40 CFR 93.153) exempts as de minimis aircraft emissions above the specific mixing height identified in the SIP or TIP. If no mixing height is identified in the SIP or TIP, the Federal agency can use 3,000 feet AGL as a default mixing height. The list of exemptions under 40 CFR 93.153(c)(2)(xxii) has been updated in this final rule to reflect this policy. F. What are some of the clarifications to the existing regulations that are being finalized? 1. The EPA is clarifying in 40 CFR 93.150 the General Conformity evaluation for treatment of emissions from actions with emissions originating in more than one nonattainment or maintenance area. The emissions in each area would be treated as if they result from a separate action.

2. The EPA is establishing procedures in 40 CFR 93.153 to follow in extending the 6-month conformity exemption for actions taken in response to an emergency.

3. The EPA is revising (40 CFR 93.158) the procedures that can be used to demonstrate conformity with the applicable SIP when the SIP does not contain an attainment demonstration or when the emissions from the Federal action are projected beyond the period of the SIP. In addition, EPA is adding a new section (40 CFR 93.162) to establish procedures for demonstrating conformity beyond the time period covered by the SIP or TIP.

4. The EPA is revising the review process (40 CFR 93.155) to require Federal agencies to notify tribal governments in the nonattainment or maintenance area of General Conformity evaluations.

5. The EPA is clarifying the definition (40 CFR 93.152) of several terms used in the regulations.

6. The EPA is including specific language throughout the regulations to identify the role of Indian Tribes and TIPs in the General Conformity evaluation. VI. Detailed Discussion of the Final Revisions to and Clarifications of the General Conformity Regulations A. 40 CFR Part 51, Subpart W— Determining Conformity of General Federal Actions to State or Federal Implementation Plans

In 1990, the CAA was amended to include a provision in section 176(c)(4) that required States to adopt and submit to EPA for approval a SIP to implement the provisions of section 176(c). Section 6011 of SAFETEA–LU revised the conformity requirements in section 176(c) of the CAA. Although most of the revisions affected the Transportation Conformity requirements, section 6011(f) also revised the General Conformity requirements. Specifically, section 6011(f) revised section 176(c)(4)(A) of the CAA by including a requirement that the regulations must be periodically updated and by deleting the requirement for the States to adopt and submit a General Conformity SIP. The EPA does not interpret this provision as prohibiting States or Tribes from voluntarily adopting and submitting General Conformity implementation plans consistent with EPA regulations. Therefore, EPA is revising 40 CFR 51.851 to make the adoption and submittal of the General Conformity SIP optional for the State and eligible federally-recognized tribal governments.

In promulgating the General Conformity Regulations in 1993, EPA published two sets of regulations: 40 CFR Part 51, subpart W (§§ 51.850 through 51.860) directed States to adopt and submit General Conformity SIPs to EPA for approval and 40 CFR Part 93 subpart B (§§ 93.150 through 93.160) provided the requirements for Federal agencies to follow in conducting their conformity evaluations before EPA approved the General Conformity SIP for the area. Section 40 CFR 51.851 directed States to adopt SIPs meeting the requirements of 40 CFR part 51, subpart W. The other sections in subpart W repeated the requirements found in 40 CFR part 93, subpart B. The EPA is deleting 40 CFR 51.850, and §§ 51.852 through 51.860 since those sections merely repeated the language in 40 CFR 93.150 and §§ 93.152 through 93.160 and is including a requirement in 40 CFR 51.851(a) that the General Conformity SIP or TIP, if adopted, must meet the requirements in 40 CFR part 93, subpart B.

In addition, EPA is restructuring § 51.851.

1. The EPA is dividing paragraph (b) of 40 CFR 51.851 into four paragraphs— (b), (c), (d), and (e):

a. Paragraph (b) now states that until EPA approves the General Conformity SIP, Federal agencies must meet the requirements of 40 CFR part 93, subpart B.b. Paragraph (c) states that after EPA approves a SIP or TIP meeting the requirement of 40 CFR part 93, subpart B, or portion thereof, the Federal agencies must meet the requirements of the SIP or TIP and any other portions of 40 CFR part 93, subpart B if not contained in the approved SIP or TIP. In addition, paragraph (g) states that any conformity requirements in an existing implementation plan remain enforceable until the State submits and EPA approves a revision to the applicable State implementation plan to specifically remove the conformity requirements. Since there is no longer a requirement for SIPs to include conformity requirements and the applicable statutes do not grant EPA additional authorities to condition approval of a State’s request to remove the General Conformity requirements from an implementation plan, it is EPA’s intent, once requested by a State, to expeditiously review and approve implementation plan revisions that seek to remove General Conformity requirements.

c. Paragraph (d) contains the requirement that the SIP or TIP can be no less stringent than 40 CFR part 93, subpart B.

d. Paragraph (e) contains the requirement that the SIP or TIP can be no more stringent that the requirement in 40 CFR part 93, subpart B unless the provisions apply equally to non-Federal as well as Federal entities.

2. The EPA is adding a new provision in § 51.851(f), which allows States or Tribes to include in their SIP or TIP a list of actions that are ‘‘presumed to conform.’’ For example, the State may identify the emissions from a certain type and size of construction activities that it presumes will conform.

Comment: Several commenters supported EPA’s proposal to make the adoption and submittal of the General Conformity SIP optional. One commenter believed that the elimination of the conformity SIP requirement in § 93.151 leaves a gap regarding the enforcement of mitigation measures.

The commenter noted that under the language in the new provision, there is no State or Federal enforceability if the State withdraws its conformity SIP or otherwise fails to retain a requirement that written commitments to undertake and implement mitigation measures are obligations of the SIP. Another commenter supported the requirements for States to develop conformity SIPs.

Response: The EPA is revising its regulations to be consistent with the revised requirements of the CAA. In 2005, the CAA was revised to eliminate the requirement that a State must adopt a conformity SIP. If a State does not have a conformity SIP, then Federal agencies must conduct their evaluation under the requirements of 40 CFR


### 17259 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations 93.150–93.165. These requirements are essentially the same as the requirements contained in the conformity SIPs. Therefore, there would be little difference in the enforceability of the regulations. Mitigation measures are included in the SIP or TIP. A conformity SIP is not needed to include the mitigation measures in the SIP or TIP. They are included in the SIP to attain or maintain the ambient air quality standards. Section 93.160 has been changed by deleting the term ‘‘General Conformity Regulations’’ to ensure this fact is clear. B. 40 CFR 93.150—Prohibition

Section 93.150 establishes the general prohibition against Federal agencies taking actions that do not conform with the SIP and requirements for the Federal agencies to make the conformity determinations following the procedures of subpart B of part 93. The EPA is making two revisions to § 93.150. First, EPA is deleting the language in paragraph (c) of that section and reserving that paragraph. Second, EPA is adding a new paragraph (e) to the section to State that if an action occurs in more than one nonattainment area, that each area must be evaluated separately.

In paragraph (c) of the 1993 regulations, EPA identified categories of actions that were not subject to the regulations based on environmental review for the action that was either completed or under way at the time the regulations were promulgated. The paragraph was based on the environmental reviews (either the conformity determination or the National Environmental Policy Act (NEPA) analysis) being completed in early 1994. Therefore, paragraph (c) was outdated and not necessary at this time.

In the new paragraph (e) in § 93.150, EPA is clarifying the regulations to State specifically that conformity determinations must be made for each nonattainment or maintenance area in which emissions from the Federal action occur. The emissions from most Federal actions or projects occur within one nonattainment or maintenance area; however, some actions or projects could extend across area boundaries, causing emissions in more than one area. A facility (for example, a national park, military installation or an airport) could be located in multiple counties or in multiple States. Emissions from an action at such facilities could extend across the nonattainment or maintenance area boundaries. Some Federal actions could result in direct or indirect emissions in non-contiguous areas, or even nationwide, that are above the de minimis thresholds and affect multiple nonattainment or maintenance areas. The 1993 regulations did not specify how actions or projects affecting multiple areas should be addressed. Therefore, EPA added paragraph (e) to state that an action’s emissions in each area would be treated as if they result from separate actions.

The EPA clarified that emissions from actions be treated separately for each nonattainment and maintenance area for the following reasons:

1. Federal agencies demonstrate conformity to a SIP, TIP or FIP that are developed on an area-specific basis and SIP requirements may vary from one area to another.

2. The General ConformityRegulations exemptions are also areaspecific. For example, the de minimis levels are based upon the type and classification of the nonattainment or maintenance area.

3. Section 176(c)(5) of the CAA limits the applicability of the conformity regulations to actions in nonattainment and maintenance areas. Therefore, actions, which affect broad regions encompassing several nonattainment, maintenance or attainment areas, must be evaluated based only on the portions of the emissions in the nonattainment and maintenance areas. C. 40 CFR 93.151—SIP Revision

The main purpose of § 93.151 is to specify that the regulations in part 93 subpart B apply to Federal actions unless the State or Tribe adopts and EPA approves a General Conformity SIP or TIP for the area. The EPA did not change the purpose of the section, but is revising the section to clarify its wording. The 1993 regulations included statements about the stringency of the SIP compared to the requirements in subpart B of part 93. The EPA is deleting those statements because they duplicate statements in 40 CFR 51.851 which specifies the requirements for the SIP and TIP. D. 40 CFR 93.152—Definitions

Section 93.152 provides the definition of terms used in the regulations. The EPA is revising 12 of the definitions, adding 11 new terms, and deleting one term, and clarifying the scope of an existing definition as follows:

Applicability analysis. The EPA is adding this new term to describe the process of determining if the Federal agency must conduct a conformity determination for its action.

Applicable implementation plan or applicable SIP. The EPA is making two minor revisions to the definition. First, EPA is correcting the citation for the SIP approval and second, EPA is clarifying the definition by adding a parenthetical phrase to clarify that the term includes an approved TIP. The requirements for eligible Tribes are found in 40 CFR 49.6.

Area-wide air quality modeling analysis. The EPA is clarifying this definition by making a minor wording change and by including photochemical grid model in the definition. Also, EPA is adding an example of the type ofmodels that could be used for the areawide air quality modeling analysis.

Caused by. The basic test established by the 1993 regulations’ definition of
‘‘caused by’’ is that the emissions would not have occurred in the absence of the Federal action. Since the General Conformity Regulations were promulgated in 1993, EPA has interpreted the regulations to require a Federal agency to include construction emissions in its conformity analysis. The EPA believes that emissions from construction activities initiated, approved, or funded by a Federal agency meets this test and should be included in the conformity evaluation. Therefore, EPA is clarifying that construction emissions are part of the total direct and indirect emissions from an action.

Comment: In the January 8, 2008, proposal, EPA solicited comment on whether construction emissions in general or short-term construction emissions should be exempt from the regulations. In addition, EPA solicited comment on what should be considered short-term construction emissions (1 to 5 years). The majority of commenters on this issue objected to exempting construction emissions. They noted that construction emissions can contribute significantly to particulate matter (PM) exceedances, especially off-road vehicle emissions. Some believed that ignoring these emissions might drop a project below the de minimis threshold and result in unmitigated emissions and the exposure of local residents to significant levels of pollutants such as diesel exhaust. However, some commenters thought that construction emissions should be exempted. They noted that construction emissions only peak for a short time and that a disproportionate amount of time in the conformity process is spent on addressing very short-term construction-related emissions. They also pointed out that construction emissions are generally not included in NSR or Transportation Conformity evaluations. Of the commenters that thought construction emissions should be exempt, some thought they should be exempt for 5


### 17260 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations years while others thought they should be exempt for only 2 years.

Response: The EPA agrees with the majority of commenters on this issue that construction emissions can contribute significantly to exceedances of the NAAQS, particularly exceedances of the PM standards. Unlike the construction activities associated with Transportation Conformity and NSR projects, construction activities associated with General Conformity actions vary widely in type. For example, General Conformity is concerned about localized impacts of the direct and indirect impacts of particular action or projects, as reflected in case-by-case analysis of emissions from specific actions, while Transportation Conformity is primarily concerned with the regional impacts of long-term use of the roads, as reflected in analysis of regional transportation processes, and secondarily concerned with short-term and localized impacts. Also, NSR specifically does not apply to emissions from mobile sources, which includes most construction equipment—no such restriction is found in General Conformity. Moreover, as explained above, EPA believes that emissions from construction activities initiated, approved, or funded by a Federal agency would not have occurred in the absence of the Federal action and thus meet the ‘‘caused by’’ definition included in the general conformity regulations. For these reasons, EPA believes that it is important that construction emissions should be considered as part of the General Conformity process. EPA also believes that other flexibilities in the revised rule will help with planning for, and addressing, construction emissions in the General Conformity process. These flexibilities include allowing alternative mitigation schedules and including construction emissions in a facility emission budget.

Also, EPA is clarifying that conformity is based on annual emissions. Therefore, Federal agencies should estimate construction emissions on an annual basis and would only have to demonstrate conformity of construction emissions during the years when the emissions occurred.

Confidential business information (CBI). In §§ 93.155 and 93.156, EPA is clarifying how CBI used in the conformity determination is to be handled. To support those provisions, EPA is adding a definition of CBI. The definition is based upon that used to define CBI under the Freedom of Information Act.

Conformity determination. The EPA is adding a new term to describe the decision that a Federal agency official makes in determining that the action will conform with the SIP, TIP or FIP.

Conformity evaluation. The EPA is adding a new definition to describe the entire conformity analysis process from the applicability analysis through the conformity determination, if necessary.

Continuing program responsibility. In the 1993 regulations, EPA used the term
‘‘emissions that a Federal agency has a continuing program responsibility for.’’ That term was awkward and confusing. The EPA is shortening the term to the
‘‘continuing program responsibility’’ and reformatting the definition to make it clearer.

Continuous program to implement. This term was used in the 1993 regulations but was not defined. Therefore, EPA is adding a definition for this term. The definition would require the Federal agency to have a program to implement the action. That program can include a number of steps such as preparation of final design plans and can also allow for seasonal shutdowns. The definition includes a requirement that the action does not stop for more than 18 months unless such a delay is included in the original plans for the action.

Direct emissions. The EPA is revising the definition of direct emissions to include a requirement that the emissions must be reasonably foreseeable. This revision reflects EPA’s policy as set forth in the July 1994 implementation guidance that direct emissions must be reasonably foreseeable. (General Conformity Guidance: Questions and Answers, USEPA, OAQPS, Page 6, Question 2, July 13, 1994).

Emission Inventory. This term is used but not defined in the 1993 regulations. Therefore, EPA is adding a definition of this term.

EPA. Since some States have Environmental Protection Agencies, EPA is adding ‘‘U.S.’’ in the definition to clarify that the regulations refer to the U.S. Environmental Protection Agency.

Indirect emissions. EPA is revising the definition for indirect emissions to clarify that only indirect emissions originating in a nonattainment or maintenance area need to be analyzed for conformity with the applicable SIP. In addition, EPA is revising the definition of ‘‘indirect emissions’’ to clarify what is meant by ‘‘the agency can practically control’’ and ‘‘for which the agency has continuing program responsibility.’’ This clarification represents EPA’s long standing position that Congress did not intend for conformity to apply to ‘‘cases where, although licensing or approving action is a required initial step for a subsequent activity that causes emissions, the agency has no control over that subsequent activity, either because there is no continuing program responsibility or ability to practically control.’’ (58 FR 63.214, 63.221, November 30, 1993). (General Conformity Guidance: Questions and Answers, USEPA, OAQPS, Page 6, Question 2, July 13, 1994).

Comment: One commenter believes that excluding emissions over which the Federal agency does not have continuing program responsibility is unlawful. The commenter believes that the original definition of ‘‘caused by’’ is practical because the conformity determination will be made in the context of an Environmental Impact Statement (EIS) for such major Federal projects and NEPA requires an assessment of the expected development and reasonably foreseeable impacts associated with such development. The commenter noted that if the agency with authority to approve these expansions lacks the continuing programmatic responsibility to control the use of facilities approved by the agency, then the proposed activity should not be approved.

The commenter believes that the proposed rule definition has the potential for allowing massive increases in emissions that is anticipated as a result of port expansions in some of the nation’s most polluted metropolitan areas. The commenter also noted that the NEPA may also create authority to adopt environmental mitigation plans as part of an agency’s programmatic responsibility.

Response: The exclusion of emissions over which the Federal agency does not have a continuing program responsibility is related to indirect emissions for the General Conformity analysis and does not affect the analysis required for NEPA review. EPA is not changing the requirements of that provision; EPA is only clarifying the language contained in it. Since 1993, the
‘‘indirect emissions’’ definition has been limited to those emissions for which
‘‘the Federal agency * * * will maintain control over due to continuing programmatic responsibility.’’ Accordingly, EPA’s reformatting of the language in this revision does not change the practical impact of this definition, and the commenter’s suggestion that the definition should include emissions over which the Federal agency does not have control would greatly expand the program beyond what EPA believes that the law intended. In any event, since EPA did not propose to expand the program to


### 17261 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations

2 While sulfur dioxide must be addressed in general conformity determinations for PM2.5, sulfur dioxide is not required to be addressed in transportation conformity determinations before a SIP is submitted, unless either the State air agency or EPA regional office makes a finding that on-road emissions of sulfur dioxide are significant contributors to the area’s PM2.5 problem. Sulfur dioxide would be addressed in transportation conformity after a PM2.5 SIP is submitted if the area’s SIP contains an adequate or approved sulfur dioxide motor vehicle emissions budget. EPA based its decision regarding treatment of sulfur dioxide in transportation conformity on the de minimis amount of on-road emissions of sulfur dioxide now and in the future, and on the implementation of low sulfur gasoline beginning in 2004 and low sulfur diesel fuel beginning in 2006. (70 FR 24283). 3 While we did not issue a proposal or provide an opportunity for public comment for this minor correction to the rule, we believe such actions are unnecessary because this minor revision in no way changes substantive conformity procedures described in the general conformity rule but merely updates the reference to the proper location of the transportation conformity regulations in the CFR. include emissions over which a Federal agency does not have control, it cannot go final with such an expansion in this rule.

Local air quality modeling analysis. The EPA is revising the definition to include an example of the type of models that are used in the local air quality modeling analysis.

Maintenance area. The EPA is making a minor wording change to clarify the definition by citing the regulations and the section of the CAA used to identify maintenance areas.

Metropolitan Planning Organization. The EPA is revising its regulatory definition to make it more consistent with the statutory definition in SAFETEA–LU, which was signed into law on August 10, 2005.

Mitigation measure. The 1993 regulations used the term ‘‘mitigation measure’’ and had a section specifying the requirements for a mitigation measure; however the regulations did not define the term. The EPA is defining a mitigation measure as a method of reducing emissions of the pollutant at the location of the action. This definition would distinguish a mitigation measure from an offset.

National ambient air quality standards. In 1997, EPA promulgated new NAAQS for both ozone and for fine particles. The definition in the 1993 regulations is broad enough to cover the new ozone standard, but the definition did not cover the fine particle standard known as PM2.5. Therefore, EPA is revising the definition of NAAQS to include PM2.5 .

Precursors of criteria pollutants. The 1993 regulations define precursors for both ozone and PM–10. Since the PM2.5 standard was promulgated after the General Conformity Regulations, the original regulations did not include the precursors for PM2.5. EPA recently amended the regulations (July 17, 2006 at 71 FR 40420) to add PM2.5 precursors, consistent with the proposed implementation program for the PM2.5 standard (70 FR 65984). The EPA defined the precursors of PM2.5 as follows:

1. Sulfur dioxide (SO2) is a regulated pollutant in all PM2.5 nonattainment and maintenance areas. 2 2. Nitrogen oxides (NOX) are regulated pollutants in all PM2.5 nonattainment and maintenance areas unless both the State/Tribe and EPA determine that they are not.

3. Volatile organic compounds (VOC) and ammonia (NH3) are not regulated pollutants in any PM2.5 nonattainment or maintenance area unless either the State/Tribe or EPA determines that they are.

Reasonably foreseeable emissions. As discussed above, under ‘‘direct emissions,’’ EPA is revising the term
‘‘direct emissions’’ to limit the emissions to those which can be reasonably foreseeable. Therefore, EPA is revising the term ‘‘reasonably foreseeable’’ to include ‘‘direct emissions.’’

Regionally significant action. As discussed in the revisions to 93.153(i) below, EPA is deleting the requirement that conformity determinations are required for actions that would normally be exempt if those actions are considered regionally significant. Therefore, EPA is deleting the definition of the term.

Restricted information. As discussed in §§ 93.155 and 156 on reporting and public participation, EPA is specifying how restricted information used in the conformity determination is to be handled. To support those revisions, EPA is adding a definition of restricted information. The definition is based upon applicable Executive Orders, regulations and statutes pertaining to materials and other information where disclosure is restricted by law.

Comment: One commenter requested that EPA state that emission data be specifically excluded for the definition of ‘‘restricted information.’’

Response: The EPA agrees that emission data generally can not be considered ‘‘restricted information.’’ Under EPA policy emission data cannot be considered as ‘‘confidential business information.’’ Only in rare circumstances where data are contained in documents classified as sensitive information to which access is restricted by law or regulation to particular classes of persons and a formal security clearance is required to handle or access the classified data would emission data from a government facility be ‘‘restricted information.’’ In the situations where restricted information is used as part of the conformity evaluation, EPA will work with the appropriate Federal, State and tribal agencies to ensure an adequate review of the conformity evaluation.

Take or start the Federal action. The EPA is adding a new term to define the date when an action occurs or starts. This date is important in determining what, if any, conformity requirementsapply when an area is designated or redesignated as nonattainment. The EPA is defining this term as the date the decision-maker signs a document such as a grant, permit, license or approval. Otherwise, EPA is defining the term as the date the Federal agency physically starts the action that requires the conformity evaluation.

Tribal implementation plan (TIP). The EPA is adding a definition for TIP to mean plans adopted and submitted by federally recognized Indian Tribes. E. 40 CFR 93.153—Applicability Analysis

The EPA is clarifying the process of determining if the General Conformity requirements are applicable to a Federal action. Although EPA is providing clarification on actions that are exempt or ‘‘presumed to conform’’ in this regulation, nothing in this regulation is intended to interfere with any exemptions previously established by law.

1. The EPA is revising the title of the section to include the word ‘‘analysis.’’ The EPA believes that adding the word would make the title more descriptive of the section’s content.

2. The EPA is making technical changes to paragraph (a) of § 93.153. The technical correction in section 93.153(a) is to update the reference to the transportation conformity regulations. Section 93.153(a) currently states that the transportation conformity regulations are codified at 40 CFR part 51 subpart T, but EPA deleted transportation conformity criteria and procedures from 40 CFR part 51 subpart T a number of years ago. (62 FR 43779) Accordingly, section 93.153(a) has been revised to refer to the transportation conformity criteria and procedures now codified at 40 CFR part 93 subpart A. 3

EPA is not finalizing the proposed changes to paragraph (b). Following proposal of changes to this paragraph EPA realized that the minor wording changes we had proposed (adding the word ‘‘criteria’’ before the word
‘‘pollutant’’ and ‘‘or precursor’’ after the


### 17262 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations word to clarify the paragraph) had been accomplished by changes made to this section in a July 17, 2006 regulatory action (71 FR 40426). Therefore, EPA is making no changes to this paragraph from the current regulatory language.

3. The EPA is revising the table in sub-paragraph (b)(1) to include all nonattainment areas in the Ozone Transport Region. In 1993, when the General Conformity Regulations were promulgated, all nonattainment areas in the Ozone Transport Region were classified pursuant to Table 1 in CAA section 181(a)(1) as marginal or above for the 1-hour ozone NAAQS. When EPA later designated areas for the 8- hour ozone NAAQS, some nonattainment areas were identified as needing to meet only the requirements in subpart 1 of Part D of Title I of the CAA and were not classified pursuant to Table 1. However, the decision to place certain areas only under subpart 1 was vacated by the decision in South Coast Air Quality Management District v. EPA, 472 F.3d 882 (DC Cir. 2006). Although there are currently no areas classified under subpart 1, the Court left open the door that EPA may be able to justify such action in the future. Accordingly, EPA is revising the table in § 93.153(c)(1) to ensure that the General Conformity requirements would apply to any area placed in the subpart 1 in the future by changing the classification from ‘‘Marginal and moderate nonattainment areas inside an ozone transport region’’ to ‘‘other nonattainment areas inside an ozone transport region.’’

4. The EPA is adding a new subparagraph (xxii) to § 93.153(c)(2) to clarify the exemptions for aircraft emissions above the mixing height for the area. Specifically, EPA is exempting aircraft emissions above the mixing height identified in the applicable SIP, TIP or FIP. Where the SIP does not contain a specific mixing height, EPA is establishing a default mixing height of 3000 feet AGL. In the January 2008 proposal, EPA had proposed to exempt all aircraft emissions above 3000 feet AGL.

Comment: Several commenters representing State and local air quality agencies objected to excluding the emissions from aircraft above 3000 feet above ground level. They noted that the mixing height varies and can be as high as 4,500 feet AGL during the ozone season and that pollutants emitted at middle and high altitudes can travel long distances. They also noted that pollution levels were below predicted levels following September 12, 2001 when aircraft were grounded. Other commenters representing the airports and the airline industry supported the exemption emission from aircraft above 3000 feet AGL. They noted that the FAA study supports the conclusion that aircraft operations at or above 3,000 feet AGL have a minimal effect on ground level pollutant concentrations. The commenters also noted that flights over almost all major U.S. airports must be at least 7000 feet AGL; therefore, any commercial aircraft operating at 3000 feet would most likely either be landing or taking off. The commenters also noted that the FAA study concluded that any increase in ground level concentrations of CO and hydrocarbon (HC) due to mixing was negligible.

A Federal agency commenter believes that the exemption for air traffic control activities should not be restricted by altitude. The commenter noted that the proposal for exempting aircraft operations above 3,000 feet AGL is much narrower than what was presented in the preamble to the 1993 General Conformity rule as an example of an action that is exempt from the General Conformity requirements—‘‘air traffic control activities and adopting approach, departure and enroute procedures for air operations.’’

Response: EPA agrees that the aircraft emissions above the mixing height do not significantly affect ground level concentrations and acknowledges that the mixing height can vary from one area to another. Accordingly, in those areas where the applicable SIP or TIP specifies a mixing height, EPA is requiring the specified mixing height to be used. However, in those areas where the SIP or TIP does not specify a mixing height, EPA is allowing the Federal agencies to use 3,000 feet AGL as a default mixing height. This conclusion is supported by the FAA study. In addition, 3,000 feet AGL is commonly used as an estimate of the average maximum afternoon mixing height across the country and most air quality models use 3,000 feet AGL as the default mixing height. However, we also note that the FAA study showed that some areas have mixing heights lower than 3,000 feet AGL, so we have added regulatory language to sub-paragraph (xxii) to allow Federal agencies to use a different mixing height if they can demonstrate that emissions at and above that height are de minimis. As a general matter, it is in the reasoned discretion of the Federal agency to decide which methods and analysis it will use when determining whether this exemption or any other provision applies to the emissions from its activity, including making an applicability determination under section 93.153(b), finding emissions result in no increase under section 93.153(c)(2), or concluding emissions are presumed to conform under section 93.153(f).

5. The EPA is revising paragraph (d)(1) of § 93.153 to exempt emissions covered by a NSR permit for minor sources. The 1993 regulations exempt emissions covered by a NSR permit for major sources but not for minor sources. EPA concluded at that time that the purposes of the General Conformity review would be adequately met by the major source NSR review, and that additional review would not be necessary. The EPA now believes that minor source NSR provides similar review, and that this approach will reduce the duplicate review of emissions under both minor source NSR and conformity programs and treat all NSR permitted emissions the same way. Accordingly, we are revising § 93.153(d)(1) to also exempt emissions covered by minor source NSR permits issued pursuant to the general permitting authority provided by section 110(a)(2)(c) of the CAA.

Comment: The majority of commenters agreed with the proposal to exempt stationary sources permitted under the NSR program. They believed the review to be redundant and unnecessary.

Some commenters disagreed with exempting minor sources. One commenter thought that EPA should not exempt activities with emissions less than the major source threshold from conformity review unless some basis can be established that the cumulative emissions from such sources are truly de minimis with respect to the statutory conformity tests. The commenter suggests that EPA substitute a SIP-based program for establishing a budget for minor sources in place of the regionally significant threshold. Several commenters suggested that only NSR permits which require offsets or are offset on a programmatic basis should be exempt from conformity. A few commenters thought that, if EPA exempts minor sources for the conformity evaluation, it must first clearly demonstrate that such exemptions will not impede States’ ability to attain any standard.

Response: The EPA agrees that requiring a conformity analysis for emission covered by a minor source NSR permit would be redundant and provide little environmental benefit. EPA believes that the permitting authority has the responsibility to ensure that the source will not interfere with the SIP or otherwise interfere with the State’s ability to attain the


### 17263 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations standards. Minor source NSR permits are issued under a SIP-approved program, so there has already been a determination that the permitting program will not contribute to a violation of the NAAQS or delay the attainment or maintenance of the standards. Thus, by issuing a specific permit under that program, the authority is stating that the emissions are accounted for in the SIP, effectively providing the same assurances as a conformity determination since Federal agencies can demonstrate conformity for an action by showing that the actions will not cause a violation or interfere with the SIP.

6. The EPA is deleting ‘‘or natural disasters such as hurricanes, earthquakes, etc.,’’ and ‘‘or disaster’’ from paragraph (d)(2) of § 93.153 because they are unnecessary words. In § 93.152 EPA defines an emergency; therefore the words in § 93.153 describing an
‘‘emergency’’ are not necessary and may be confusing since they do not include all types of emergencies.

7. The EPA is amending paragraph (e)(2) of § 93.153 to provide procedures for reviewing an extension of the exemption from making a conformity determination for actions related to responding to an emergency. A Federal agency, in responding to an emergency event such as a natural disaster, terrorist attack, military mobilization, or other situations (such as wildfire responses) that an agency determines fit within the definition of emergency found in § 93.152, may find it impractical to conduct a conformity evaluation on the action before it must take the action. To address this situation, 40 CFR 93.153(d)(2) of the 1993 regulations provides Federal agencies with a 6-month exemption from the requirement to undertake a conformity analysis for actions taken in response to an emergency. The EPA recognizes that in rare situations it may be impractical, even after 6 months, to conduct a conformity evaluation and is amending § 93.153(e) to allow the agencies to extend the exemption for another 6 months. This section requires Federal agencies to make a written determination that it is impractical to conduct an evaluation for the action. The 1993 regulations were not clear about the number of additional extensions permitted under § 93.153(e) nor do those regulations provide any procedures for agencies to follow in deciding on the extension.

The EPA is not revising requirements for the initial exemption for actions in response to emergencies. The initial governmental actions that are typically commenced within hours or days in response to emergencies or disasters would still be exempt from the General Conformity requirements for 6 months after the commencement of the response to the emergency or disaster. However, EPA is adding requirements for Federal agencies that want to extend the exemption beyond the initial 6-month period. First, EPA is requiring the Federal agencies to allow EPA and the State 15 days to review and provide comments on the draft written determination to extend the exemption at the beginning of the extension period. Next, EPA is requiring Federal agencies to publish a notice within 30 days of making the extension decision. The notice must be published in a daily general circulation newspaper for the affected area. Finally, EPA is limiting the maximum number of 6-month extensions an agency may declare without additional documentation on their own to three. Thereafter, the revisions require that the agency must provide additional information concerning the emergency conditions to EPA and the State or Tribe.

8. The EPA is revising paragraphs (f), (g), and (h) of § 93.153 to provide Federal agencies clear guidance in developing their list of actions that are
‘‘presumed to conform’’ and provide requirements for the materials that must be included in the documentation and draft list. Specifically, EPA is adding wording to paragraph (f) to specify when and how more than one
‘‘presumed to conform’’ exception may be taken for a Federal action; adding a new paragraph (g)(3) to specify that Federal agencies can list actions that are for individual areas or SIPs or TIPs; adding a sentence to paragraph (h)(1) to specify the information that must be included in the documentation; and adding a sentence to paragraph (h)(2) to allow the Federal agencies to notify EPA headquarters when the ‘‘presumed to conform’’ actions would have multiregional or national impacts. In addition, EPA is revising paragraphs (f) and (h) to include a reference to the new paragraph (g)(3).

In promulgating the existing regulations, EPA allowed a number of actions that were ‘‘presumed to conform.’’ The regulations also allow Federal agencies to establish their own lists of actions that are ‘‘presumed to conform’’ with applicable SIPs and TIPs. Under the 1993 regulations, Federal agencies must justify the inclusion of the actions on their ‘‘presumed to conform’’ list by either demonstrating: (1) That the actions will not cause or contribute to an air quality problem or otherwise interfere with the SIP, TIP, or FIP, or (2) that the actions will have emissions below the de minimis levels. The Federal agencies must provide copies of the proposed list to EPA, affected State and local air quality agencies and MPOs. In addition, the agencies must provide at least a 30-day public comment period and document its response to all comments. The notice of the proposed and final list must be published in the Federal Register.

The EPA is adding sub-paragraph (g)(3) to clarify that a presumption could apply to one facility or for facilities in a specified area and does not have to be nationally applicable. For example, if the nonattainment area’s SIP includes a sector emission budget for construction activities, a facility in that area may be able to demonstrate that construction activities of a certain size or type fits within the SIP’s emission budget. With the concurrence of the State or Tribe, the Federal agencies could publish a
‘‘presumed to conform’’ list that includes the construction activity emissions that are specific to a facility.

9. The EPA is deleting the regionally significant test included in paragraph (i) of § 93.153. The existing regulations in § 93.152 define ‘‘regionally significant’’ as ‘‘a federal action for which the direct and indirect emissions of any pollutant represent 10 percent or more of a nonattainment or maintenance area’s emissions inventory.’’ 40 CFR 93.153(i) and (j) require conformity determinations for all regionally significant actions, regardless of any exemptions or presumptions of conformity based on other provisions in the regulations.

Comment: Some commenters supported deletion of the regionally significant provision noting that it is unnecessary, not helpful in determining whether a Federal action will conform to the SIP, and is an administrative burden. Other commenters believed that the provision should be retained or strengthened or a more appropriate percentage of the area’s inventory be used for the test. Some commenters also pointed out that in light of the new PM2.5 and 8-hour ozone standards, certain Federal projects might become
‘‘regionally significant’’ in the near future.

Response: EPA agrees that the determination of whether actions with emissions below the de minimis emission levels are regionally significant has been a burden to some Federal agencies with little or no environmental benefit. Analysis discussed in the proposal showed that the emission inventory for most nonattainment and maintenance areas well exceeded the ten times the de


### 17264 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations

minimis emission levels for the area, such that no emissions could actually be regionally significant. Although several commenters question whether the regionally significant test might be important for the new PM2.5 and 8-hour ozone standards, they presented no information to show that the de minimis emission levels would exceed 10 percent of the inventory for potential nonattainment areas for those standards.

10. In a revised paragraph (i) of § 93.153, EPA allows installations with a facility-wide emission budget to presume that an action at the installation will conform provided that the emissions from that action along with all other emissions from the facility will not exceed the budget. Amore detailed discussion of the facilitywide emission budget concept is found in § 93.161.

11. Also in § 93.153(i), EPA identified emissions from a prescribed fire conducted under an approved smoke management program as ‘‘presumed to conform.’’ In the January 2008 proposal, EPA asked for comments on two options for allowing a presumption of conformity for prescription fires. Option 1 would have allowed Federal agencies to presume that the emissions from prescribed burns will conform provided the burning is conducted under a State certified approved SMP or an equivalent replacement EPA policy. Option 2 would have also allowed Federal agencies, in the absence of a certified SMP, to presume that emissions from prescribed burns will conform provided they obtain written permission from the State and use BSMP.

Comment: The EPA received many comments in support of the second option, which allows Federal agencies to determine, in absence of a certified SMP, that prescription fires conducted using BSMP are considered ‘‘presumed to conform’’ to the SIP. Some commenters noted that to be consistent with the ‘‘Treatment of Data Influenced by Exceptional Events’’ rule (72 FR 13559, March 22, 2007), if the State does not certify a SMP, the exemption should be for burns using State approved BSMP. Many commenters also supported the first option, noting that it was reasonable to assume that any action conducted in compliance with the certified SMP would be in compliance with the SIP. One commenter thought that the presumption of conformity for burns conducted under BSMP is not acceptable because BSMP are in no way connected to air quality and will not ensure that resulting emissions from a prescribed burn would conform to the SIP. This commenter also noted that the use of SMP may be acceptable, but EPA has not yet issued its final wildland fire policy. Another commenter suggested that if prescribed burns under certified SMP or a BSMP are ‘‘presumed to conform,’’ there needs to be a simple way to flag the data from affected monitors. Numerous commenters recommended that the definition of emergency include wildfires.

Response: After considering the various practices and the comments received, the EPA believes option 1 presented in the proposed rule is more protective of the air quality than option 2. However, we also recognize that prescribed fires employing BSMPs may be able to meet a presumption of conformity if such a presumption is established by an agency following the requirements of 93.153(g) or by a State following the requirements of 51.851(f). Under option 1, prescribed fires conducted in compliance with a SMP are ‘‘presumed to conform.’’ The purpose of an SMP is to mitigate nuisance smoke and public safety hazards, prevent NAAQS violations, protect public health, and address visibility impacts in Class I areas. EPA also notes that SMPs establish procedures and requirements for minimizing emissions. EPA recognizes that prescribed burns employing BSMPs may be as protective of air quality in areas where no SMP exists. BSMPs can be connected to air quality and may protect air quality as outlined in the ‘‘Treatment of Data Influenced by Exceptional Events’’ rule. In order to assure the adequacy of the BSMPs to meet the legal requirements of the General Conformity program as outlined in section 176, Federal agency developed BSMPs must be publicly and State reviewed as part of a presumed to conform action under section 93.153(g) or 51.851(f) of these regulations to establish such a presumption. Because the EPA chose not to require the certification of the SMP under the final
‘‘Treatment of Data Influenced by Exceptional Events’’ rule, EPA is also removing the term ‘‘certified’’ from this final General Conformity Rule. Finally, EPA has identified wildfire response as an example of an emergency event that may be exempt from General Conformity requirements under 93.153 (d)(2) and (e) if that agency determines it fits within the definition of emergency found in § 93.152.

12. As discussed above, EPA also added a provision in § 93.153(i) to allow a State or Tribe to adopt in their SIP or TIP a list of actions it ‘‘presumes to conform.’’

13. The EPA is revising paragraph (j) of § 93.153 by deleting the reference to regionally significant emissions, by adding a reference to paragraph (i) and by describing the criteria for requiring a conformity determination for an action that otherwise would be ‘‘presumed to conform.’’ The 1993 regulations state that an action cannot be ‘‘presumed to conform’’ if it was regionally significant or did not in fact meet the requirements of sub-paragraph (g)(1). As discussed above, EPA has deleted the regionally significant test, therefore reference to it is has been deleted from this paragraph.For clarity, instead of referring to subparagraph (g)(1), EPA is repeating the requirements in this paragraph.

14. The EPA is revising paragraph (k) of § 93.153 to incorporate the provisions of section 176(c)(6) of the CAA. (42 U.S.C. 7506(c)(6)). In November 2000, Congress added section 176(c)(6) to the CAA to allow for a conformity grace period for newly designated nonattainment areas (Pub. L. 106–377). That section establishes a 1-year grace period following the effective date of the final nonattainment designation for each new or revised NAAQS before the conformity requirements must be met in the area. If an agency takes or starts the Federal action before the end of the grace period, it must comply with the applicable pre-designation conformity requirements. If an agency takes or starts the Federal action after the end of the grace period, it must comply with the post-designation conformity requirements. As discussed above in describing the new term ‘‘take or start the federal action,’’ EPA is defining the term to mean that a Federal agency takes an action when it signs a permit, license, grant or contract or otherwise physically starts the Federal action. From the time that an area is designated as nonattainment, agencies will have a year to take or start the Federal action. If the agency fails to take or start the Federal action during the grace period, then it must re-evaluate conformity for the project based on the requirements for the new designation and classification. F. 40 CFR 93.154—Federal Agencies Responsibility for a Conformity Determination

1. The EPA is revising the title of this section to clarify the purpose of the section. In the 1993 regulations this section is entitled broadly ‘‘Conformity Analysis.’’ Since the short section only discusses the requirement for each Federal agency to make its own determination, EPA is revising the title of the section to more closely describe the section’s content.

2. The EPA is adding language to this section to specifically state that the


### 17265 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations conformity determination must meet the requirements of this subpart. G. 40 CFR 93.155—Reporting Requirements

1. Since EPA is adding additional sections to subpart B, it is revising the references to those sections in § 93.155.

2. Consistent with EPA’s Tribal Authority Rule (63 FR 7253), EPA is providing federally-recognized Indian tribal governments the same opportunity to comment on draft conformity determinations as given to States. Therefore, EPA is requiring the Federal agencies to notify all the federally-recognized Indian tribal governments in the nonattainment or maintenance area.

3. The EPA is adding an alternative procedure for notifying EPA when the action would result in emissions originating in nonattainment or maintenance areas in three or more EPA regions. Specifically, EPA is allowing agencies to notify the EPA Office of Air Quality Planning and Standards rather than each individual regional office. A single contact point for EPA should be more efficient for the other Federal agencies than notifying up to 10 regional Offices. This final notification provision also corrects an inconsistency between the proposed rule preamble and the proposed regulation, which stated that the EPA Office of Air Quality Planning and Standards could be contacted when the action would result in emissions originating in nonattainment or maintenance areas in two or more EPA regions.

4. The EPA is adding a new paragraph to § 93.155 to describe how restricted information used to support conformity determinations should be handled when provided to EPA, States and Tribal governments. The 1993 General Conformity Regulations do not contain an explicit statement about protecting restricted information from public release. The interagency review and public participation provisions in the 1993 regulations require Federal agencies to make available for review the draft conformity determination with supporting materials that describe the analytical methods and conclusions relied upon in making the determination. Disclosure of classified information by a Federal employee is a criminal offense (18 U.S.C. 1905). In addition, certain unclassified information is privileged or otherwise protected from disclosure. Therefore, several Federal agencies wanted to ensure that the General Conformity Regulations clearly state that no agency or individual was required to release restricted information including, but not limited to, classified materials. Therefore, EPA is revising the regulation to add explicit language concerning the protection of restricted information. In addition, conformity determinations could, in part, be based upon restricted information. The EPA is adding specific language to the regulation to protect restricted information in accordance with each Federal agency’s policy and regulations for the handling of restricted information. The regulations would allow State or EPA personnel with the appropriate clearances to be able to view the restricted information. H. 40 CFR 93.156—Public Participation

1. The EPA is correcting the section referenced in § 93.156. The 1993 regulations refer to § 93.158. The correct reference should be § 93.154. Section 93.158 prescribes the criteria for conducting a conformity analysis, while § 93.154 requires Federal agencies to make the determination and references the requirements in the other sections of subpart B.

2. The EPA is providing an alternative public notification procedure for actions that cause emissions above the de minimis levels in three or more EPA regions. This corrects a mistake made in the proposed rule preamble that stated,
‘‘EPA is proposing to provide an alternative public notification procedure for actions that cause emissions above the de minimis levels in more than three nonattainment or maintenance areas.’’ In addition, this corrects an inconsistency with the proposed regulation, which stated that the alternative public notification procedure is for actions that have multi-regional or national impacts in two or more regions. The 1993 regulations require that the Federal agency publish a notice in a daily newspaper of general circulation in the nonattainment or maintenance area. Some Federal actions affect a large number of nonattainment and maintenance areas. The notification procedure for such an action could be burdensome and inefficient. Therefore, EPA is amending the rules to allow the Federal agencies to publish a notice in the Federal Register if the action would cause emissions above the de minimis levels in three or more nonattainment or maintenance areas.

3. The EPA is adding a new paragraph to § 93.156 to describe how restricted information and CBI used to support conformity determinations should be handled in providing the information to the public. I. 40 CFR 93.157—Re-Evaluation of Conformity

1. The EPA is revising the title of this section to more appropriately describe the section’s content. The 1993 regulations section is entitled,
‘‘Frequency of Conformity Determinations.’’ That title implies that the General Conformity requirements for Federal actions must be reevaluated on a regular basis. However, the section states that conformity must be reevaluated only if the determination lapses or the action is modified, resulting in an increase in emissions.

2. If an action’s emissions are below the de minimis levels or the action is not located in a nonattainment or maintenance area, a conformity determination is not required. Therefore, the Federal agency would not have a date for the conformity determination to use in determining if reevaluation is required. The EPA is making minor wording changes in paragraphs (a) and (b) to clarify that the date of a completed NEPA analysis, as evidenced by a signed finding of no significant impact (FONSI) for an environmental assessment, a record of decision (ROD) for an environmental impact statement, or a record of a categorical exclusion, can be used when a conformity determination is not required.

3. The EPA is adding a new paragraph (d) to § 93.157 to clarify the requirements for needing to conduct a conformity determination when the action is modified. Paragraph (d) deals with modifying an action for which the Federal agency made a conformity determination. In order to make the original determination, the Federal agency had to demonstrate that all the emissions caused by the initial action conformed to the SIP. Since conformity determinations are only needed for emissions that exceed the de minimis levels, EPA has clarified in the rule that the Federal agency does not have to revise its conformity determination unless the modification would result in an increase that equals or exceeded the de minimis emission levels for the area. Paragraph (d) also deals with modifying an action that the Federal agency determined had emissions below the de minimis level. Since the emissions from the unmodified action were determined to be de minimis and not fully evaluated to determine conformity, EPA is requiring Federal agencies to conduct a conformity determination for the modified action if the total emissions (the emissions from the unmodified action plus the increased emissions resulting from the modification) equal


### 17266 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
or exceed the de minimis levels for the area. Thus, in both situations, all emissions that exceed de minimis levels are evaluated for conformity impacts, either initially or after modification. J. 40 CFR 93.158—Criteria for Determining Conformity for General Federal Actions

1. In § 93.158(a)(1), EPA is adding ‘‘or precursor’’ after ‘‘any criteria pollutant’’ to clarify that Federal agencies must demonstrate conformity for the precursors of the criteria pollutants if the precursor emissions are specifically identified and accounted for in the applicable SIP, TIP or FIP.

2. In § 93.158(a)(2) and (a)(5)(iii), EPA is allowing Federal agencies to obtain emission offsets for the General Conformity requirements from a nearby nonattainment or maintenance area of equal or higher classification, provided that the emissions from the nearby area contribute to the violations of the NAAQS in the area where the Federal action is located or, in the case of a maintenance area, the emissions from the nearby area have contributed in the past to the violations in the area where the Federal action is located. The regulation requires such emissions offsets to be obtained through either an approved SIP revision or an equally enforceable commitment.

Comment: Commenters representing Federal agencies, industry groups and some State air quality agencies supported the provision to allow offsets from nearby nonattainment or maintenance areas. Some of these commenters suggested that additional limits could be imposed on the use of the out-of-area offsets. Several commenters representing State air quality agencies opposed the allowing of offsets from other areas. The commenters noted that EPA regulations and Federal court rulings limit the area from which emissions reductions can be creditable for attainment demonstrations. They also opposed allowing offsets because conformity generally applies to mobile source emissions that are different from stationary source emissions covered by NSR.

Response: The EPA agrees that offsets should be allowed in nearby nonattainment areas in the same manner as they are allowed under the NSR program. We agree with the commenter that EPA regulations and judicial rulings place limits on the area from which emissions reductions can be creditable for attainment demonstrations. The intent of those limits is to ensure that the emissions from the nearby nonattainment area contribute to the violations, or have contributed to violations in the past, in the area in which the Federal action takes place. This is consistent with the overall revisions to this regulation. Therefore, we are also recommending that Federal agencies show that they have met the requirements of § 93.158(a)(2)—that the emission offsets originate from an area that contributes to the violations, or have contributed to violations in the past, in the areas with the Federal action—by using the same techniques EPA has approved by rule or guidance for demonstrating contributing emissions in other SIP-related determinations, such as Reasonable Further Progress, Rate of Progress, or Attainment Demonstrations for a particular pollutant or pollutant precursor. By limiting the offsets to areas that contribute or have contributed to the nonattainment, EPA is narrowing the potential offsets to areas that will result in a benefit to the nonattainment or maintenance area in which the Federal action will take place.

3. In § 93.158(a)(2), (a)(3) and (a)(4), EPA is revising the regulations to address the precursors of PM2.5 . The EPA does not believe that the current models are adequate to reasonably predict the project level impact of individual precursor sources of ozone or PM2.5 . Therefore, EPA is allowing Federal agencies to use modeling to demonstrate conformity only for directly emitted pollutants. Precursors of PM2.5 will be treated the same as precursors of ozone and direct emissions of PM2.5 will be treated the same as CO and PM–10 for purposes of identifying available tests to demonstrate conformity.

4. In § 93.158(a)(3) and (5), EPA is correcting two typographical errors. In sub-paragraph (3), EPA is correcting
‘‘meet’’ to ‘‘meets’’ and in sub-paragraph (5), EPA is changing ‘‘paragraph (a)(30)(11)’’ to ‘‘paragraph (a)(3)(ii).’’

5. In § 93.158(a)(5)(iv)(A)(1), EPA is deleting the reference to the year 1990 and replacing it with a generic reference to the most current calendar year with a complete emission inventory available before an area is designated unless EPA sets another year. In addition to requiring the conformity regulations, the CAA Amendments of 1990 required the designation of areas as nonattainment based on the existing air quality data. Therefore, when EPA promulgated the 1993 regulations, all the designations were based on a 1990 date. Since EPA promulgated the conformity regulations, it has promulgated new 8-hour ozone and PM2.5 standards and designated a number of areas as nonattainment. By changing the regulations to reference the date when the area was designated as nonattainment, EPA is allowing for the General Conformity regulations to address these new designations and any future designations through identification of appropriate inventory levels. In addition, including the option to allow EPA to set another year for the baseline allows EPA and other Federal agencies to work together to determine if another baseline may be appropriate for determining conformity of a particular action, such as determining that an agency can rely on one specific baseline year for an action subject to both the general and transportation conformity regulations when those regulations otherwise indicate application of two different baseline years.

6. Also in § 93.158(a)(5)(i), EPA is revising the paragraph to allow Federal agencies to make conformity determinations based upon a State’s or Tribe’s determination that the emissions from the action along with all other emissions in the area would not exceed the emission budget in the applicable SIP or TIP. Under the 1993 regulations, States could only make such a determination if they had an approved attainment demonstration or maintenance SIP. This revision would allow the State or Tribe to make itsdetermination based upon a postdesignation applicable SIP or TIP even though the plan does not include an attainment demonstration. For example, the State or Tribe could base their determination on an emission budget in an EPA-approved ‘‘Reasonable Further Progress’’ plan. By adopting the budget and submitting it as part of the SIP or TIP, the State or Tribe is treating the Federal action like any other source in the area. When the State or tribal agency adopts the attainment or maintenance SIP or TIP, it will have to consider the emissions from the Federal action, and if necessary require additional controls on the sources as necessary to meet air quality needs.

7. The EPA is revising § 93.158(a)(5)(i)(C) to allow the State or Tribe to commit to including the emissions from the Federal action in future SIPs. Under the 1993 regulations, Federal agencies can demonstrate conformity by having the State commit to revising the applicable SIP to include the emissions. If a State or Tribe agrees to such a commitment, the State or Tribe must submit a SIP revision within 18 months to include the emissions from the action and to make other necessary adjustments in the SIP to accommodate those emissions. However, the existing SIP or TIP (or a SIP or TIP required to be submitted in


### 17267 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations 18 months) may not cover the same timeframe covered by the conformity determination. For example, a SIP for a nonattainment area that demonstrates attainment may only cover the period until the attainment date while the conformity determination may cover emissions for many years beyond that date. The State or Tribe may be submitting future SIPs or TIPs to address either maintenance of the standard or to address a continuing nonattainment problem that would cover the time period of the emissions. The revision to § 93.158(a)(5)(i)(C) would continue to require States to revise the SIP within 18 months of the conformity determination based upon a State’s or Tribe’s commitment. However, if the existing SIP or TIP (or a SIP or TIP due within 18 months) does not cover the time period of the emissions, then the State or Tribe will submit a SIP revision that includes an enforceable commitment to account for the emissions in future SIP revisions. This approach will allow States and Tribes flexibility in committing to include the emissions from the Federal action in the SIP covering the relevant time period.

8. The EPA is revising § 93.158(a)(5)(iv) to delete the use of 1990 as the baseline year. As discussed above, when EPA promulgated the existing General Conformity Regulations in 1993, the designations and classifications were based upon the 1990 air quality and emissions. Since 1993, EPA has promulgated new standards and designated additional areas as nonattainment. Therefore, in many cases the 1990 date for the baseline emission inventory is inappropriate. The EPA is setting the baseline year as the most current calendar year with a complete emission inventory available before an area is designated unless EPA sets another year. As noted above, including the option to allow EPA to set another year for the baseline allows EPA and other Federal agencies to work together to determine if another baseline may be appropriate for determining conformity of a particular action.

Finally, EPA is deleting another alternate baseline year that no longer is applicable in PM–10 areas. Specifically, EPA is deleting in § 93.158(a)(5)(iv)(A)(3) the use of the
‘‘year of the baseline inventory in the PM–10 applicable SIP.’’ EPA believes that the deletion of this outdated baseline year should not affect current General Conformity determinations in PM–10 nonattainment and maintenance areas. K. 40 CFR 93.159—Procedures for Conformity Determinations for General Federal Actions

1. EPA is changing § 93.159(b)(1)(ii) to address when new motor vehicle emissions factors models are used in General Conformity determinations. EPA is clarifying that the grace period before such new models are used will be 3 months from EPA’s model release, unless a longer grace period is announced in the Federal Register. This is more consistent with 40 CFR 93.111 of the transportation conformity rule that allows grace periods for new motor vehicle emissions factor models to be between 3–24 months.

2. The EPA is revising § 93.159(b)(2) and (c) to update the reference to the Compilation of Air Pollutant Emission Factors and the Guideline on Air Quality Modeling. EPA has released updated versions of these documents since it promulgated the existing regulations in 1993.

3. The EPA is revising paragraph (d)(1) to clarify that analysis is first required for the attainment year specified in the SIP. In some cases, such as SIPs for marginal ozone areas, an attainment demonstration date was not required in the SIP. Therefore, EPA is requiring that if the SIP or TIP does not specify an attainment demonstration year then the analysis is conducted for the latest attainment year possible under the CAA. Since the CAA requires the SIP demonstrate attainment as expeditiously as possible but no later than the CAA mandated attainment date, it is possible that a SIP or TIP could have an earlier attainment date. That earlier date if specified in the SIP would be the appropriate year for the conformity analysis.

4. The EPA is making a minor wording revision to paragraph (d)(2) to clarify the paragraph. The EPA is replacing the word ‘‘farthest’’ with ‘‘last.’’ The maintenance plans are developed for a 10-year period and revised as necessary for the next 10-year period. The purpose is for conformity to be evaluated for the last year of the maintenance plan. The word ‘‘last’’ conveys that meaning. L. 40 CFR 93.160—Mitigation of Air Quality Impacts

The EPA is revising paragraph § 93.160(f) to clarify its meaning. The regulations were meant to require that the mitigation measures include a written commitment from the person or organization reducing the emissions and that those commitments must be fulfilled. EPA is adding text to state that those commitments must be fulfilled to clearly provide for enforcement of those commitments under the Federal regulations. M. 40 CFR 93.161—Conformity Evaluations for Installations With Facility-Wide Emission Budget

The EPA is adding a new section to the regulations to facilitate the use of a facility-wide emission budget in evaluating conformity. Although the existing regulations do not preclude States and Federal agencies from using this approach, the regulations do not specifically authorize its use. This section for developing such a budget would be in conjunction with a new § 93.153(i)(1), which provides a mechanism for demonstrating that the emissions are in conformance with the SIP or TIP. This approach allows States or Tribes and Federal agencies to identify acceptable levels of emissions from the facility for inclusion in the SIP before starting the environmental review for the actions and thereby expedite the review of the Federal actions at the facilities that do not exceed the emission levels.

The EPA believes that this provision would encourage the State, Tribe or local air quality agency and the Federal facilities to develop an upfront emission budget for the facility, and the action or project environmental review would be streamlined as long as the facility remains within an established budget.

The development and use of a facilitywide emission budget would be voluntary on the part of the Federal agency, State, Tribe and local air quality agency. No party would be required to participate. If the parties agreed to participate, an emission budget would be established based upon specific guidance and documented growth projections for the facility, and adoption of that budget into a SIP or TIP would demonstrate that the area could meet its air quality obligations with the identified emission budget.

Comment: The majority of commenters supported the concept of the facility-wide emission budget approach with the appropriate consultation and input from the States. Many noted that it will not interfere with attainment of the NAAQS. However, some commenters disapproved of the budget approach and expressed concern about a Federal agency/airport being allowed to establish their own budget without having to do additional analysis.

While generally agreeing with the approach, many commenters asked EPA for clarifications. Several commenters asked for clarification in the final rule that this is voluntary for both the


### 17268 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations Federal agency and the States and the States can opt to use the existing General Conformity approach. In addition, some commenters asked EPA to include provisions requiring such measures as periodic reporting of emissions, anti-backsliding, and a requirement to obtain offsets if the budget is exceeded. Another commenter requested that on-site pollution prevention projects be required to occur contemporaneously with any proposed emission changes at the facility. Many commenters requested that EPA clarify the applicability of this provision to non-Federal facilities (e.g., airports).

Response: The EPA agrees with most of the commenters that the facility-wide emissions budget approach will not interfere with attainment of the NAAQS and will provide flexibility to the facilities in meeting the General Conformity requirements. EPA believes that this approach benefits both the air regulatory agencies and the regulated facilities. State air quality agencies would benefit by having better emission estimates, including growth estimates from the installation and Federal agencies would benefit by having the General Conformity process streamlined, reducing the amount of time it takes to demonstrate conformity. EPA is clarifying in the final rule that this approach is completely voluntary by both the State and the Federal agency. If the State or Tribe agrees to allow the facility to use the emission budget approach, it must ensure that the budget that it approves meets all applicable air quality requirements such as attainment deadlines and reasonable further progress milestones. Thus, in developing and approving such budgets, we encourage the facilities and the State or Tribe to consult with other agencies or authorities as may be appropriate. For example, we encourage consultation with the local MPO if a facility-wide emissions budget includes on-road mobile emissions that might also be included in an MPO’s regional emissions analysis.

While the State or Tribe must approve a facility-wide budget into the SIP or TIP, once they have done so they cannot compel an agency to demonstrate conformity with another approach if the Federal agency chooses to showconformity with the approved facilitywide emission budget. Federal agencies may use any approach to demonstrate conformity provided for in the rule. Facilities that are not federally controlled or operated, but are subject to Federal approvals, permits or funding (such as airports and seaports) maywork with the State to establish facilitywide emissions budget that can be used by a Federal agency to satisfy its General Conformity responsibilities. The approval by the State of a facility-wide emissions budget into the SIP does not relieve the State of any obligation to meet any SIP or CAA requirements, milestones or deadlines. N. 40 CFR 93.162—Emissions Beyond the Time Period Covered by the Applicable SIP or TIP

The EPA is adding a new section to address how Federal agencies can demonstrate conformity for an action that causes emissions beyond the time period covered by the SIP or TIP. First, EPA is allowing Federal agencies to demonstrate conformity using the last emission budget in the SIP or TIP. If it is not practicable to demonstrate conformity using that technique, then the Federal agency can request the State or Tribe to provide an enforceable commitment to include the emissions from the Federal action in a current or future SIP or TIP emissions budget. In such a case, the State or Tribe would be required to submit a SIP revision within 18 months to either include the emissions in the current SIP or TIP or a commitment to account for the emissions in future SIPs or TIPs. The emissions included in the future SIP should be based on the latest planning assumptions at the time of the SIP revision. Although a State is committing to include the emissions in the emissions budget for the SIP revisions, this commitment does not prevent the State from requiring the use for the affected sources of reasonably available control technology (RACT), reasonably available control measures (RACM) or any other control measures within the State’s authority to ensure timely attainment of the NAAQS. O. 40 CFR 93.163—Timing of Offsets and Mitigation Measures

Mitigation measures and offsets are used to reduce the impact of emission increases from a project or action. To alleviate the impact of the project’s emissions, the emissions reductions from offsets or mitigation measures should occur at the same time as the emission increases from the project. In general, EPA has interpreted the existing regulations to mean that the reductions must occur in the same calendar year as the emission increases caused by the action because the total direct and indirect emissions from an action are collated on an annual basis. Therefore, EPA has decided to include this interpretation in the regulations.

The EPA is adding a new section to address the timing of offset and mitigation measures. First, the section generally requires that the emission reductions for the offset and mitigation measures must occur in the same calendar year as the emission increases caused by the Federal action and that the reductions are equal to the emissions increases. As an alternative, the new section would allow, under special conditions and consistent with CAA requirements, the State or Tribe to approve other schedules for offsets or mitigation measures. EPA is requiring that emissions reductions used over an alternate schedule must be consistent with statutory requirements that new violations are not created, the frequency or severity of existing violations are not increased, and timely attainment or interim milestones are not delayed. Therefore, when a State or Tribe approves an alternative schedule for emissions reductions, it is assuring that the increased emissions that occur during the period of the Federal action do not violate any of the three Clean Air Act requirements described above.

To ensure that these noncontemporaneous emission reductions provide greater environmental benefits in the long term, EPA is requiring that the offset or mitigation ratios for alternative schedules be greater than one-for-one. Therefore, EPA is requiring a ratio that is no less than the applicable NSR offset ratios for the area. These ratios are readily available and already understood to be based on the severity of the nonattainment problem for the area.

Also, EPA believes that the mitigation or offset compensation period should not last indefinitely and is requiring that the period should not exceed two times the period of the under-mitigated emissions. For example, a Federal agency may be supporting a construction project lasting 3 years in a serious nonattainment area and that project will cause 150 tons per year of increased emissions; the State or Tribe can approve mitigation measures or offsets which reduce emissions by less than 150 tons per year provided the total reduction over a 6-year period is equal to or more than 540 tons (150 tons per year times 3 years equals 450 tons times the offset/mitigation ratio of 1.2 to 1 for serious nonattainment areas equals 540 tons).

Agreeing to allow the use of offsets or mitigation measures in later years does not exempt the State or Tribe from timely meeting any of its SIP or TIP obligations, such as reasonable further progress milestones or attainment deadlines. Emissions reductions which accrue beyond the compensation period should be properly reflected in the SIP or TIP, e.g., through a SIP revision.


### 17269 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations

Comment: Several commenters representing Federal agencies, industry and airports supported the flexibility in the timing of offsets and mitigation measures. The commenters believe that EPA needs to clarify what entity would determine whether the alternative time period for mitigation would trigger the three statutory factors for conformity and how such entity would do so. One commenter recommended that the State or tribal agency responsible for the SIP be the appropriate entity. Another commenter requested that EPA clarify the use of emission reduction credits in such cases. In addition, a commenter urges EPA to reduce the offset ratios to no more than 1.2:1 in extreme nonattainment areas and to provide a fixed period of time for completing the emissions reductions recommending a 5-year compensation period to be included in the rule.

Some commenters representing State and local air quality agencies objected to the alternate schedule provision for offsets. The commenters believe that mitigation measures and offsets must be contemporaneous and occur in the same calendar year as the emission increases. If EPA adopts the provision, the commenters suggested additional limitation on the use of the alternative schedule, such as a 3-year maximum time limit for the schedule and requiring more than a one-for-one offset.

Response: The EPA believes the rule should be finalized as proposed. This will allow Federal agencies to work with States or Tribes to develop an alternative schedule for the emission reductions in cases where a greater environmental benefit can be obtained. The requirement for the additional reductions to meet the ratios in the regulations ensures that the area is receiving at least a minimum environmental benefit consistent with other CAA programs. Since State or tribal approval is required for the alternative schedule, those agencies have the ability to ensure that the alternative schedule not cause or contribute to a violation of the SIP or TIP. In addition, EPA has added additional wording to clarify that the State or Tribe is not compelled to approve a proposed alternate schedule for mitigation measures. P. 40 CFR 93.164—Inter-Precursor Offsets and Mitigation Measures

The EPA is adding a new section tothe regulations to allow the use of interprecursor offset and mitigation measures where they are allowed by the SIP. For example, some States and local air districts have SIP-approved NSR regulations that allow new or modified stationary sources to offset the increase in emissions of one criteria pollutant precursor by reducing the emissions of another precursor of the same criteria pollutant, provided there is an environmental benefit to such an exchange and an appropriate ratio of precursor reductions has been established. The 1993 General Conformity regulations do notspecifically allow or prohibit interprecursor offsets and mitigation measures. Therefore, EPA is revising the regulations to allow such offsets or mitigation measures if they are allowed by a State or tribal NSR or trading program approved in the SIP, provided they:

1. Are technically justified; and 2. Have a demonstrated environmental benefit.

The ratio for the offsets must be consistent with SIP or TIP requirements and EPA guidance.

Comments: Commenters from a wide range of affiliations supported the provision for inter-precursor offsets with some conditions. The commenters suggested that offsets should be allowed only with adequate technical supportand appropriate ratios for interpollutant mitigation. Others thought EPA should provide a guidance document on what States may consider as reasonable tradeoffs and procedures for evaluating such tradeoffs at the same time as the final rule publication. Many believed the provisions should only be implemented with the full involvement and approval of the State, local or tribal air quality agency. Some commenters representing State air quality agenciesobjected to the provision for interprecursor offsets but gave no reason for the objection.

Response: The EPA believes that allowing inter-precursor offsets will allow facilities flexibility in meeting the General Conformity requirements and agrees to change the regulations to allow for the trading of inter-precursor emissions only if two conditions are met. First, such trades must be allowed by the State or Tribe in a SIP or TIP. TheState must already allow for interprecursor offsets or trading through a SIP-approved NSR program, transportation conformity program, or in the attainment or reasonable further progress (RFP) demonstration to ensure conformance with a SIP or a TIP. Second, the trade must be technically justified and have demonstrated environmental benefits. This technical justification and demonstration should be accomplished by showing that the precursors are area specific and appropriate ratios are identified in the SIP. As needed, EPA will provide guidance on tradeoffs and procedures for evaluating such tradeoffs. Q. 40 CFR 93.165—Early Emission Reduction Credit Program

The EPA is adding a new section to the regulations to establish an early emission reduction credit program for facilities subject to the General Conformity Regulations. The existing regulations require that the offsets and mitigation measures be in place before the emissions increases caused by the Federal action occur. However, emission reduction programs undertaken before the conformity determination is made could be considered as part of the baseline emissions and not available as offsets or mitigation measures for future actions subject to the General Conformity requirements. To expedite the project level conformity process, EPA believes Federal agencies and project sponsors could benefit from the ability to reduce emissions in advance of the time that the reductions are needed for a conformity evaluation, while at the same time meeting the goals of the SIP and TIP.

The EPA is adding a new section, § 93.165, to the General Conformity Regulations to define the requirements of this program. Under the program, Federal agencies or project proponents (such as airport authorities) could identify emission control measures and present the proposed reduction to the State, Tribe or local air quality agency. If the measure met the criteria for an offset (quantifiable; consistent with the applicable SIP attainment and RFP demonstrations; surplus to the reductions required by and credited to other applicable SIP provisions; enforceable at both the State and Federal levels; and permanent within the timeframe specified by the program) as well as all State, Tribe or local requirements, the State, Tribe or local agency can approve the measure as eligible to produce emission reduction credits. If credits are issued, then a Federal agency will be allowed to use the credits to reduce the total of direct and indirect emissions from a future proposed action. At the time the credits are used, the State, Tribe or local agency must certify that the reductions still meet the criteria listed above. The credits must be used in the same calendar year in which they are generated under this program.

In paragraph (a), EPA establishes the ability for the State or Tribe and Federal agency to create and use the emission reduction credits.

In paragraph (b), EPA identifies the criteria for creating the credits. The


### 17270 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations criteria are similar to the requirements that apply to any offset or mitigation measure used to compensate for the increased emissions caused by the action. First, the Federal agency must be able to quantify the reductions using reliable techniques. In some cases, however, it may not be possible to precisely quantify the reductions until after the measure has been implemented. For example, a facility may adopt a strategy calling for the purchase and use of alternate-fueled vehicles. Although the agency could calculate the difference in the emissions between the alternate-fueled vehicle and the standard vehicle, it may not know the amount the vehicles will be used. In this case, the State or Tribe and Federal agency could agree on an emission factor and determine the use at a later time. However, the reductions must be quantified before the credit is used to support a conformity determination.

In paragraph (c), EPA establishes the requirements for the use of the credits. If the emission reduction credits are created at the same facility and in the same nonattainment or maintenance area as the Federal action, the credits can be used to reduce the total emissions from the action. This may allow the Federal agency to determine the action conforms because the total emissions are below the de minimis levels for the area. If the strategy is not implemented at the same facility but is in the same nonattainment or maintenance areas as the action, then the credits can be used as offsets or mitigation measures for the emissions caused by the action, but not to determine if the action emissions fall below de minimis thresholds. In this context, ‘‘same facility’’ means a contiguous area that a Federal agency manages or exercises control over. Generally, all actions and operations within a fence line of a facility such as an airport would be considered to be at the ‘‘same facility.’’ However, military operations at a civilian airport would not be considered to be at the ‘‘same facility.’’ Therefore, an airport could install equipment to supply power and conditioned air to airplanes parked at a gate to reduce the use of diesel generators and auxiliary power units at an airport terminal. Those reductions could be considered to be implemented as part of an airport expansion project to improve the terminal and thus would be at the ‘‘same facility.’’

Since the General Conformity program is based on annual emissions, EPA is requiring that the credits be used in the same year as they are generated under the program. Such a restriction would ensure consistency with the other parts of the General Conformity program. This does not mean that an emission reduction strategy cannot produce an annual stream of credits, but does mean that the reduction credits cannot be carried over to another year. Although the emission reduction credits must meet the criteria for use of offsets or other mitigation measures, EPA is not allowing the credits to be combined with other program areas such as the alternate schedules for mitigationmeasures under § 93.163 or the interprecursor mitigation offset program under § 93.164. At this time, EPA believes that, because of the newness of the emission reduction credit program and the lack of available implementation data, it is better to take a conservative approach on implementing the program to ensure that it can be effectively implemented and evaluated.

Comment: Most commenters supported EPA’s proposal to allow the use of emission reduction credits (ERCs). One commenter thought that EPA should clarify when the ERCs can be used. Several commenters disagreed with the proposal, citing concerns such as violations of conformity, while another was concerned about the additional resources required to certify the ERC and track them over time, and avoidance of formal conformity determinations. Still another commenter thought that under § 93.165(b)(4) there is no ability for States and the public to enforce the measures relied upon to generate emission reduction credits.

Response: The EPA believes that by allowing early ERCs, Federal agencies will be encouraged to develop emission reduction programs before they are needed as offsets for conformity determinations. Since the emissions are accounted for on an annual basis, the unused credits would benefit the environment. The emission reduction programs could be implemented in conjunction with the action requiring the conformity determination. Therefore, the use of ERC would not encourage an agency to violate conformity. In any event, under this provision all Federal actions would need applicable offsetting reductions by the time the conformity determination was made. EPA does not believe States will be required to use more resources since States and Tribes are only required to verify the credits when they are used in a conformity evaluation, while the agency relying upon the credits is required to document that usage. VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a ‘‘significant regulatory action’’ because it may interfere with actions taken or planned by other Federal agencies. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act

This action does not directly impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., on non-Federal entities. The General Conformity Regulations require Federal agencies to determine that their actions conform to the SIPs or TIPs. However, depending upon how Federal agencies implement the regulations, non-Federal entities seeking funding or approval from those Federal agencies may be required to submit information to that agency.

Although the present revisions to the regulations do not establish any specific new information collection burden, it would establish alternative voluntary approaches that may result in a different burden. For example, the proposed facility-wide emission budget would allow Federal agencies or operators of facilities subject to the General Conformity requirements such as commercial service airports to work with the State, Tribe or local air quality agency to develop an emission budget for the facility. The State, Tribe or local agencies and Federal agencies or third party facility operators would incur the burden of developing the budget. However, those entities are not required to implement such a program and would be relieved of the burden of conducting and reviewing some, if not all, of the General Conformity determinations for the facility if they do so. States are not required to implement a program that would increase their burden, and we assume they would not choose to do so. C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an Agency to prepare a regulatory flexibility analysis of any regulation subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the


### 17271 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations Agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts this final rule on small entities, small entity is defined as: (1) A small business that is a small industrial entity as defined in the U.S. Small Business Administration (SBA) size standards. (See 13 CFR 121.); (2) A governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) A small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impact of this final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any significant requirements on small entities, because the General Conformity Regulations set requirements on Federal agencies to show that their actions conform to the appropriate State, tribal or Federal implementation plan for attaining clean air. D. Unfunded Mandates Reform Act

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531– 1538 for State, local, or tribal governments or the private sector. The action imposes no enforceable duty on any State, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of section 202 and 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. The General Conformity Regulations set requirements on Federal agencies to show that their actions conform to the appropriate State, tribal or Federal implementation plan for attaining clean air. E. Executive Order 13132—Federalism

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The General Conformity Regulations set requirements on Federal agencies to show that their actions conform to the appropriate State, tribal or Federal implementation plan for attaining clean air. Thus, Executive Order 13132 does not apply to this action. F. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). They do not have a substantial direct effect on one or more Indian Tribes, since no Tribe has to demonstrate conformity for their actions. Furthermore, except for allowing the Tribes to comment on draft conformity determinations, these regulation revisions do not affect the relationship or distribution of power and responsibilities between the Federal government and Indian Tribes. The CAA and the Tribal Air Rule establish the relationship of the Federal government and Tribes in developing plans to attain the NAAQS, and these revisions to the regulations do nothing to modify that relationship. Thus, Executive Order 13175 does not apply to this action. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

This action is not a ‘‘significant energy action’’ as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The General Conformity Regulations set requirements on Federal agencies to show that their actions conform to the appropriate State, tribal or Federal implementation plan for attaining clean air. Further, we have concluded that this rule is not likely to have any adverse energy effects. I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104– 113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS.

This action does not involve technical standards. Therefore, EPA did not consider the use of any VCS. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

Executive Order (EO) 12898 (59 FR 7629, (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The revisions to the regulations would revise procedures for other Federal agencies to follow and does not relax the progress toward attainment and maintenance for the NAAQS as required by individual SIPs and TIPs As such, they do not affect the health or safety of minority or low income populations. The EPA encourages other agencies to carefully consider and address environmental justice in their implementation of their evaluations and conformity determinations. K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement


### 17272 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations 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 of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). This rule will be effective July 6, 2010. VII. Statutory Authority

The statutory authority for this action is provided by section 176(c) of the CAA as amended (42 U.S.C. 7506). List of Subjects 40 CFR Part 51

Environmental protection, Administrative practice and procedures, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds. 40 CFR Part 93

Environmental protection, Administrative practice and procedures, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.

Dated: March 24, 2010. Lisa P. Jackson, Administrator. ■ For the reasons stated in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows: **PART 51—REQUIREMENTS FOR PREPARATION, ADOPTION, AND**  **SUBMITTAL OF IMPLEMENTATION PLANS** 
■ 1. The authority citation for part 51 continues to read as follows:

Authority: 23 U.S.C. 101; 42 U.S.C. 7401– 7671q. **Subpart W—[Amended] § 51.850 [Removed and Reserved]**  ■ 2. Remove and reserve § 51.850. ■ 3. Section 51.851 is revised to read as follows: **§ 51.851 State implementation plan (SIP) or Tribal implementation plan (TIP) revision.** 

(a) A State or eligible Tribe (a federally recognized tribal government determined to be eligible to submit a TIP under 40 CFR 49.6) may submit to the Environmental Protection Agency (EPA) a revision to its applicable implementation plan which contains criteria and procedures for assessing the conformity of Federal actions to the applicable implementation plan, consistent with this section and 40 CFR part 93, subpart B.

(b) Until EPA approves the conformity implementation plan revision permitted by this section, Federal agencies shall use the provisions of 40 CFR part 93, subpart B in addition to any existing applicable State or tribal requirements, to demonstrate conformity with the applicable SIP or TIP as required by section 176(c) of the CAA (42 U.S.C. 7506).

(c) Following EPA approval of the State or tribal conformity provisions (or a portion thereof) in a revision to the applicable SIP or TIP, conformity determinations shall be governed by the approved (or approved portion of) State or tribal criteria and procedures. The Federal conformity regulations contained in 40 CFR part 93, subpart B would apply only for the portion, if any, of the part 93 requirements not contained in the State or Tribe conformity provisions approved by EPA.

(d) The State or tribal conformity implementation plan criteria and procedures cannot be any less stringent than the requirements in 40 CFR part 93, subpart B.

(e) A State’s or Tribe’s conformity provisions may contain criteria and procedures more stringent than the requirements described in this subpart and part 93, subpart B, only if the State’s or Tribe’s conformity provisions apply equally to non-Federal as well as Federal entities.

(f) In its SIP or TIP, the State or Tribe may identify a list of Federal actions or type of emissions that it presumes will conform. The State or Tribe may place whatever limitations on that list that it deems necessary. The State or Tribe must demonstrate that the action will not interfere with timely attainment or maintenance of the standard, meeting the reasonable further progress milestones or other requirements of the Clean Air Act. Federal agencies can rely on the list to determine that their emissions conform with the applicable SIP or TIP.

(g) Any previously applicable SIP or TIP requirements relating to conformity remain enforceable until EPA approves the revision to the SIP or TIP to specifically remove them.

§§ 51.852 through 51.860 [Removed and Reserved] ■ 4. Remove and reserve §§ 51.852 through 51.860. **PART 93—DETERMINING CONFORMITY OF FEDERAL ACTIONS**  **TO STATE TRIBAL OR FEDERAL IMPLEMENTATION PLANS** 

■ 5. The authority citation for part 93 continues to read as follows:

Authority: 42 U.S.C. 7401–7671q. **Subpart B—[Amended]**
■ 6. Section 93.150 is amended by removing and reserving paragraph (c) and by adding paragraph (e) to read as follows: **§ 93.150 Prohibition.** * * * * *

(e) If an action would result in emissions originating in more than one nonattainment or maintenance area, the conformity must be evaluated for each area separately. ■ 7. Section 93.151 is revised to read as follows: **§ 93.151 State implementation plan (SIP) revision.** 

The provisions and requirements of this subpart to demonstrate conformity required under section 176(c) of the Clean Air Act (CAA) apply to all Federal actions in designated nonattainment and maintenance areas where EPA has not approved the General Conformity SIP revision allowed under 40 CFR 51.851. When EPA approves a State’s or Tribe’s conformity provisions (or a portion thereof) in a revision to an applicable implementation plan, a conformity evaluation is governed by the approved (or approved portion of the) State or Tribe’s criteria and procedures. The Federal conformity regulations contained in this subpart apply only for the portions, if any, of the part 93 requirements not contained in the State or Tribe conformity provisions approved by EPA. In addition, any previously applicable implementation plan conformity requirements remain enforceable until the EPA approves the revision to the applicable SIP to specifically include the revised requirements or remove requirements. ■ 8. Section 93.152 is amended as follows: ■ a. Adding in alphabetical order a definition for ‘‘Applicability analysis.’’ ■ b. Revising the definition of
‘‘Applicable implementation plan or applicable SIP.’’


### 17273 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations

■ c. Revising the definition for
‘‘Areawide air quality modeling analysis.’’ ■ d. Adding the following definitions in alphabetical order: ‘‘Confidential business information (CBI),’’
‘‘Conformity determination,’’
‘‘Conformity evaluation,’’ ‘‘Continuing program responsibility,’’ and
‘‘Continuous program to implement.’’ ■ e. Revising the definition of ‘‘Direct emissions.’’ ■ f. Adding in alphabetical order a definition for ‘‘Emission inventory.’’ ■ g. Removing the definition for
‘‘Emissions that a Federal agency has a continuing program responsibility for.’’ ■ h. Revising the definition of ‘‘EPA.’’ ■ i. Revising the definition of ‘‘Indirect Emissions.’’ ■ j. Revising the definition of ‘‘Local air quality modeling analysis.’’ ■ k. Revising the definitions for
‘‘Maintenance area’’ and ‘‘Metropolitan Planning Organization (MPO).’’ ■ l. Adding in alphabetical order a definition for ‘‘Mitigation measure.’’ ■ m. Revising the definition for
‘‘National ambient air quality standards (NAAQS).’’ ■ n. In the definitions for ‘‘Precursors of a criteria pollutant,’’ revising paragraphs (3)(i), (3)(ii) and (3)(iii). ■ o. Revising the definition for
‘‘Reasonably foreseeable emissions.’’ ■ p. Removing the definition for
‘‘Regionally significant action.’’ ■ q. Adding the following definitions:
‘‘Restricted information.’’ ■ r. Adding in alphabetical order the definitions for ‘‘Take or start the Federal action’’ and ‘‘Tribal implementation plan (TIP).’’

The additions and revisions read as follows: **§ 93.152 Definitions.** * * * * *

Applicability analysis is the process of determining if your Federal action must be supported by a conformity determination.

Applicable implementation plan or applicable SIP means the portion (or portions) of the SIP or most recent revision thereof, which has been approved under section 110(k) of the Act, a Federal implementation plan promulgated under section 110(c) of the Act, or a plan promulgated or approved pursuant to section 301 (d) of the Act (Tribal implementation plan or TIP) and which implements the relevant requirements of the Act.

Areawide air quality modeling analysis means an assessment on a scale that includes the entire nonattainment or maintenance area using an air quality dispersion model or photochemical grid model to determine the effects of emissions on air quality, for example, an assessment using EPA’s community multi-scale air quality (CMAQ) modeling system. * * * * *

Confidential business information (CBI) means information that has been determined by a Federal agency, in accordance with its applicable regulations, to be a trade secret, or commercial or financial information obtained from a person and privileged or confidential and is exempt from required disclosure under the Freedom of Information Act (5 U.S.C. 552(b)(4)).

Conformity determination is the evaluation (made after an applicability analysis is completed) that a Federal action conforms to the applicable implementation plan and meets the requirements of this subpart.

Conformity evaluation is the entire process from the applicability analysis through the conformity determination that is used to demonstrate that the Federal action conforms to the requirements of this subpart.

Continuing program responsibility means a Federal agency has responsibility for emissions caused by:

(1) Actions it takes itself; or (2) Actions of non-Federal entities that the Federal agency, in exercising its normal programs and authorities, approves, funds, licenses or permits, provided the agency can impose conditions on any portion of the action that could affect the emissions.

Continuous program to implement means that the Federal agency has started the action identified in the plan and does not stop the actions for more than an 18-month period, unless it can demonstrate that such a stoppage was included in the original plan. * * * * *

Direct emissions means those emissions of a criteria pollutant or its precursors that are caused or initiated by the Federal action and originate in a nonattainment or maintenance area and occur at the same time and place as the action and are reasonably foreseeable. * * * * *

Emission Inventory means a listing of information on the location, type of source, type and quantity of pollutant emitted as well as other parameters of the emissions. * * * * *

EPA means the U.S. Environmental Protection Agency. * * * * *

Indirect emissions means those emissions of a criteria pollutant or its precursors: (1) That are caused or initiated by the Federal action and originate in the same nonattainment or maintenance area but occur at a different time or place as the action;

(2) That are reasonably foreseeable; (3) That the agency can practically control; and

(4) For which the agency has continuing program responsibility.

For the purposes of this definition, even if a Federal licensing, rulemaking or other approving action is a required initial step for a subsequent activity that causes emissions, such initial steps do not mean that a Federal agency can practically control any resulting emissions. * * * * *

Local air quality modeling analysis means an assessment of localized impacts on a scale smaller than the entire nonattainment or maintenance area, including, for example, congested roadways on a Federal facility, which uses an air quality dispersion model (e.g., Industrial Source Complex Model or Emission and Dispersion Model System) to determine the effects of emissions on air quality.

Maintenance area means an area that was designated as nonattainment and has been re-designated in 40 CFR part 81 to attainment, meeting the provisions of section 107(d)(3)(E) of the Act and has a maintenance plan approved under section 175A of the Act. * * * * *

Metropolitan Planning Organization (MPO) means the policy board of an organization created as a result of the designation process in 23 U.S.C. 134(d). * * * * *

Mitigation measure means any method of reducing emissions of the pollutant or its precursor taken at the location of the Federal action and used to reduce the impact of the emissions of that pollutant caused by the action.

National ambient air quality standards (NAAQS) are those standards established pursuant to section 109 of the Act and include standards for carbon monoxide (CO2), lead (Pb), nitrogen dioxide (NO2), ozone, particulate matter (PM–10 and PM2.5), and sulfur dioxide (SO2). * * * * *

Precursors of a criteria pollutant are: * * * * *

(3) * * * (i) Sulfur dioxide (SO2) in all PM2.5 nonattainment and maintenance areas,

(ii) Nitrogen oxides in all PM2.5 nonattainment and maintenance areas unless both the State and EPA determine that it is not a significant precursor, and


### 17274 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations (iii) Volatile organic compounds (VOC) and ammonia (NH3) only in PM2.5 nonattainment or maintenance areas where either the State or EPA determines that they are significant precursors.

Reasonably foreseeable emissions are projected future direct and indirect emissions that are identified at the time the conformity determination is made; the location of such emissions is known and the emissions are quantifiable as described and documented by the Federal agency based on its own information and after reviewing any information presented to the Federal agency. * * * * *

Restricted Information is information that is privileged or that is otherwise protected from disclosure pursuant to applicable statutes, Executive Orders, or regulations. Such information includes, but is not limited to: Classified national security information, protected critical infrastructure information, sensitive security information, and proprietary business information. Take or start the Federal action means the date that the Federal agency signs or approves the permit, license, grant or contract or otherwise physically begins the Federal action that requires a conformity evaluation under this subpart. * * * * *

Tribal implementation plan (TIP) means a plan to implement the national ambient air quality standards adopted and submitted by a federally recognized Indian tribal government determined to be eligible under 40 CFR 49.9 and the plan has been approved by EPA. ■ 9. Section 93.153 is amended as follows: ■ a. By revising the table in paragraph (b)(1). ■ b. By adding paragraph (c)(2)(xxii). ■ c. By revising paragraphs (d)(1) and (d)(2). ■ d. By revising paragraph (e)(2). ■ e. By adding paragraph (e)(3). ■ f. By revising paragraph (f). ■ g. By revising paragraph (g) introductory text. ■ h. By adding paragraph (g)(3). ■ i. By revising paragraphs (h) introductory text, (h)(1), (h)(2), and (h)(4). ■ j. By revising paragraphs (i), (j), and (k). **§ 93.153 Applicability analysis.** * * * * *

(1) * * * Tons/year Ozone (VOC’s or NOX): Tons/year Serious NAA’s ........................... 50 Severe NAA’s ............................ 25 Extreme NAA’s .......................... 10 Other ozone NAA’s outside an

ozone transport region .......... 100 Other ozone NAA’s inside an

ozone transport region: VOC .......................................... 50 NOX ........................................... 100 Carbon monoxide: All NAA’s ........ 100 SO2 or NO2: All NAA’s ................. 100 PM–10:

Moderate NAA’s ........................ 100 Serious NAA’s ........................... 70 PM 2.5 :

Direct emissions ........................ 100 SO2 ............................................ 100 NOX (unless determined not to

be significant precursors) ...... 100 VOC or ammonia (if determined

to be significant precursors) .. 100 Pb: All NAA’s ................................ 25 * * * * *

(c) * * * (2) * * * (xxii) Air traffic control activities and adopting approach, departure, and enroute procedures for aircraft operations above the mixing height specified in the applicable SIP or TIP. Where the applicable SIP or TIP does not specify a mixing height, the Federal agency can use the 3,000 feet above ground level as a default mixing height, unless the agency demonstrates that use of a different mixing height is appropriate because the change in emissions at and above that height caused by the Federal action is de minimis. * * * * *

(d) * * * (1) The portion of an action that includes major or minor new or modified stationary sources that require a permit under the new source review (NSR) program (Section 110(a)(2)(c) and Section 173 of the Act) or the prevention of significant deterioration program (title I, part C of the Act).

(2) Actions in response to emergencies which are typically commenced on the order of hours or days after the emergency and, if applicable, which meet the requirements of paragraph (e) of this section. * * * * *

(e) * * * (2) For actions which are to be taken after those actions covered by paragraph (e)(1) of this section, the Federal agency makes a new determination as provided in paragraph (e)(1) of this section and:

(i) Provides a draft copy of the written determinations required to affected EPA Regional office(s), the affected State(s) and/or air pollution control agencies, and any Federal recognized Indian tribal government in the nonattainment or maintenance area. Those organizations must be allowed 15 days from the beginning of the extension period to comment on the draft determination; and

(ii) Within 30 days after making the determination, publish a notice of the determination by placing a prominent advertisement in a daily newspaper of general circulation in the area affected by the action.

(3) If additional actions are necessary in response to an emergency or disaster under paragraph (d)(2) of this section beyond the specified time period in paragraph (e)(2) of this section, a Federal agency can make a new written determination as described in (e)(2) of this section for as many 6-month periods as needed, but in no case shall this exemption extend beyond three 6- month periods except where an agency:

(i) Provides information to EPA and the State or Tribe stating that the conditions that gave rise to the emergency exemption continue to exist and how such conditions effectively prevent the agency from conducting a conformity evaluation.

(ii) [Reserved] (f) Notwithstanding other requirements of this subpart, actions specified by individual Federal agencies that have met the criteria set forth in either paragraphs (g)(1), (g)(2), or (g)(3) of this section and the procedures set forth in paragraph (h) of this section are
‘‘presumed to conform,’’ except as provided in paragraph (j) of this section. Actions specified by individual Federal agencies as ‘‘presumed to conform’’ may not be used in combination with one another when the total direct and indirect emissions from the combination of actions would equal or exceed any of the rates specified in paragraphs (b)(1) or (2) of this section.

(g) The Federal agency must meet the criteria for establishing activities that are ‘‘presumed to conform’’ by fulfilling the requirements set forth in either paragraphs (g)(1), (g)(2), or (g)(3) of this section: * * * * *

(3) The Federal agency must clearly demonstrate that the emissions from the type or category of actions and the amount of emissions from the action are included in the applicable SIP and the State, local, or tribal air quality agencies responsible for the SIP(s) or TIP(s) provide written concurrence that the emissions from the actions along with all other expected emissions in the area will not exceed the emission budget in the SIP.


### 17275 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations (h) In addition to meeting the criteria for establishing exemptions set forth in paragraphs (g)(1), (g)(2), or (g)(3) of this section, the following procedures must also be complied with to presume that activities will conform:

(1) The Federal agency must identify through publication in the Federal Register its list of proposed activities that are ‘‘presumed to conform’’ and the basis for the presumptions. The notice must clearly identify the type and size of the action that would be ‘‘presumed to conform’’ and provide criteria for determining if the type and size of action qualifies it for the presumption;

(2) The Federal agency must notify the appropriate EPA Regional Office(s), State, local, and tribal air quality agencies and, where applicable, the agency designated under section 174 of the Act and the MPO and provide at least 30 days for the public to comment on the list of proposed activities
‘‘presumed to conform.’’ If the
‘‘presumed to conform’’ action has regional or national application (e.g., the action will cause emission increases in excess of the de minimis levels identified in paragraph (b) of this section in more than one of EPA’s Regions), the Federal agency, as an alternative to sending it to EPA Regional Offices, can send the draft conformity determination to U.S. EPA, Office of Air Quality Planning and Standards; * * * * *

(4) The Federal agency must publish the final list of such activities in the Federal Register.

(i) Emissions from the following actions are ‘‘presumed to conform’’:

(1) Actions at installations with facility-wide emission budgets meeting the requirements in § 93.161 provided that the State or Tribe has included the emission budget in the EPA-approved SIP and the emissions from the action along with all other emissions from theinstallation will not exceed the facilitywide emission budget.

(2) Prescribed fires conducted in accordance with a smoke management program (SMP) which meets the requirements of EPA’s Interim Air Quality Policy on Wildland and Prescribed Fires or an equivalent replacement EPA policy.

(3) Emissions for actions that the State or Tribe identifies in the EPA-approved SIP or TIP as ‘‘presumed to conform.’’

(j) Even though an action would otherwise be ‘‘presumed to conform’’ under paragraph (f) or (i) of this section, an action shall not be ‘‘presumed to conform’’ and the requirements of § 93.150, § 93.151, §§ 93.154 through 93.160 and §§ 93.162 through 93.164 shall apply to the action if EPA or a third party shows that the action would:

(1) Cause or contribute to any new violation of any standard in any area;

(2) Interfere with provisions in the applicable SIP or TIP for maintenance of any standard;

(3) Increase the frequency or severity of any existing violation of any standard in any area; or

(4) Delay timely attainment of any standard or any required interim emissions reductions or other milestones in any area including, where applicable, emission levels specified in the applicable SIP or TIP for purposes of:

(i) A demonstration of reasonable further progress;

(ii) A demonstration of attainment; or (iii) A maintenance plan. (k) The provisions of this subpart shall apply in all nonattainment and maintenance areas except conformity requirements for newly designated nonattainment areas are not applicable until 1 year after the effective date of the final nonattainment designation for each NAAQS and pollutant in accordance with section 176(c)(6) of the Act. ■ 10. Section 93.154 is revised to read as follows: **§ 93.154 Federal agency conformity responsibility.** 

Any department, agency, or instrumentality of the Federal government taking an action subject to this subpart must make its own conformity determination consistent with the requirements of this subpart. In making its conformity determination, a Federal agency must follow the requirements in §§ 93.155 through 93.160 and §§ 93.162 through 93.165 and must consider comments from any interested parties. Where multiple Federal agencies have jurisdiction for various aspects of a project, a Federal agency may choose to adopt the analysis of another Federal agency or develop its own analysis in order to make its conformity determination. ■ 11. Section 93.155 is revised to read as follows: **§ 93.155 Reporting requirements.**

(a) A Federal agency making a conformity determination under §§ 93.154 through 93.160 and §§ 93.162 through 93.164 must provide to the appropriate EPA Regional Office(s), State and local air quality agencies, any federally-recognized Indian tribal government in the nonattainment or maintenance area, and, where applicable, affected Federal land managers, the agency designated under section 174 of the Act and the MPO, a 30-day notice which describes the proposed action and the Federal agency’s draft conformity determinationon the action. If the action has multiregional or national impacts (e.g., the action will cause emission increases in excess of the de minimis levels identified in § 93.153(b) in three or more of EPA’s Regions), the Federal agency, as an alternative to sending it to EPA Regional Offices, can provide the notice to EPA’s Office of Air Quality Planning and Standards.

(b) A Federal agency must notify the appropriate EPA Regional Office(s), State and local air quality agencies, any federally-recognized Indian tribal government in the nonattainment or maintenance area, and, where applicable, affected Federal land managers, the agency designated under section 174 of the Clean Air Act and the MPO, within 30 days after making a final conformity determination under this subpart.

(c) The draft and final conformity determination shall exclude any restricted information or confidential business information. The disclosure of restricted information and confidential business information shall be controlled by the applicable laws, regulations, security manuals, or executive orders concerning the use, access, and release of such materials. Subject to applicable procedures to protect restricted information from public disclosure, any information or materials excluded from the draft or final conformity determination or supporting materials may be made available in a restricted information annex to the determination for review by Federal and State representatives who have received appropriate clearances to review the information. ■ 12. Section 93.156 is revised to read as follows: **§ 93.156 Public participation.**

(a) Upon request by any person regarding a specific Federal action, a Federal agency must make available, subject to the limitation in paragraph (e) of this section, for review its draft conformity determination under § 93.154 with supporting materials which describe the analytical methods and conclusions relied upon in making the applicability analysis and draft conformity determination.

(b) A Federal agency must make public its draft conformity determination under § 93.154 by placing a notice by prominent advertisement in a daily newspaper of general circulation in the area affected by the action and by providing 30 days for written public comment prior to taking any formal


### 17276 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
action on the draft determination. This comment period may be concurrent with any other public involvement, such as occurs in the National Environmental Policy Act (NEPA) process. If the action has multi-regional or national impacts (e.g., the action will cause emission increases in excess of the de minimis levels identified in § 93.153(b) in three or more of EPA’s Regions), the Federal agency, as an alternative to publishing separate notices, can publish a notice in the Federal Register.

(c) A Federal agency must document its response to all the comments received on its draft conformity determination under § 93.154 and make the comments and responses available, subject to the limitation in paragraph (e) of this section, upon request by any person regarding a specific Federal action, within 30 days of the final conformity determination.

(d) A Federal agency must make public its final conformity determination under § 93.154 for a Federal action by placing a notice by prominent advertisement in a daily newspaper of general circulation in the area affected by the action within 30 days of the final conformity determination. If the action would have multi-regional or national impacts, the Federal agency, as an alternative, can publish the notice in the Federal Register.

(e) The draft and final conformity determination shall exclude any restricted information or confidential business information. The disclosure of restricted information and confidential business information shall be controlled by the applicable laws, regulations or executive orders concerning the release of such materials. ■ 13. Section 93.157 is revised to read as follows: **§ 93.157 Reevaluation of conformity.**

(a) Once a conformity determination is completed by a Federal agency, thatdetermination is not required to be reevaluated if the agency has maintained a continuous program to implement the action; the determination has not lapsed as specified in paragraph (b) of this section; or any modification to the action does not result in an increase in emissions above the levels specified in § 93.153(b). If a conformity determination is not required for the action at the time NEPA analysis is completed, the date of the finding of no significant impact (FONSI) for an Environmental Assessment, a record of decision (ROD) for an Environmental Impact Statement, or a categorical exclusion determination can be used as a substitute date for the conformity determination date.

(b) The conformity status of a Federal action automatically lapses 5 years from the date a final conformity determination is reported under § 93.155, unless the Federal action has been completed or a continuous program to implement the Federal action has commenced.

(c) Ongoing Federal activities at a given site showing continuous progress are not new actions and do not require periodic re-determinations so long as such activities are within the scope of the final conformity determination reported under § 93.155.

(d) If the Federal agency originally determined through the applicability analysis that a conformity determination was not necessary because the emissions for the action were below the limits in § 93.153(b) and changes to the action would result in the total emissions from the action being above the limits in § 93.153(b), then the Federal agency must make a conformity determination. ■ 14. Section 93.158 is amended as follows: ■ a. Revising paragraphs (a)(1), (a)(2), (a)(3) introductory text and (a)(4) introductory text; ■ b. Revising paragraph (a)(5) introductory text; ■ c. Revising paragraphs (a)(5)(i) introductory text, and (a)(5)(i)(C); ■ d. Adding paragraph (a)(5)(i)(D). ■ e. Revising paragraphs (a)(5)(iii), (a)(5)(iv) introductory text; (a)(5)(iv)(A)( 1 ), (a)(5)(iv)(A)(2) and paragraph (a)(5)(iv)(B). **§ 93.158 Criteria for determining conformity of general Federal actions.** 

(a) * * * (1) For any criteria pollutant or precursor, the total of direct and indirect emissions from the action are specifically identified and accounted for in the applicable SIP’s attainment or maintenance demonstration or reasonable further progress milestone or in a facility-wide emission budget included in a SIP in accordance with § 93.161;

(2) For precursors of ozone, nitrogen dioxide, or PM, the total of direct and indirect emissions from the action are fully offset within the same nonattainment or maintenance area (or nearby area of equal or higher classification provided the emissions from that area contribute to the violations, or have contributed to violations in the past, in the area with the Federal action) through a revision to the applicable SIP or a similarly enforceable measure that effects emissions reductions so that there is no net increase in emissions of that pollutant;

(3) For any directly-emitted criteria pollutant, the total of direct and indirect emissions from the action meets the requirements: * * * * *

(4) For CO or directly emitted PM— * * * * *

(5) For ozone or nitrogen dioxide, and for purposes of paragraphs (a)(3)(ii) and (a)(4)(ii) of this section, each portion of the action or the action as a whole meets any of the following requirements:

(i) Where EPA has approved a revision to the applicable implementation plan after the area was designated as nonattainment and the State or Tribe makes a determination as provided in paragraph (a)(5)(i)(A) of this section or where the State or Tribe makes a commitment as provided in paragraph (a)(5)(i)(B) of this section: * * * * *

(C) Where a Federal agency made a conformity determination based on a State’s or Tribe’s commitment under paragraph (a)(5)(i)(B) of this section and the State has submitted a SIP or TIP to EPA covering the time period during which the emissions will occur or is scheduled to submit such a SIP or TIP within 18 months of the conformity determination, the State commitment is automatically deemed a call for a SIP or TIP revision by EPA under section 110(k)(5) of the Act, effective on the date of the Federal conformity determination and requiring response within 18 months or any shorter time within which the State or Tribe commits to revise the applicable SIP;

(D) Where a Federal agency made a conformity determination based on a State or tribal commitment under paragraph (a)(5)(i)(B) of this section and the State or Tribe has not submitted a SIP covering the time period when the emissions will occur or is not scheduled to submit such a SIP within 18 months of the conformity determination, the State or Tribe must, within 18 months, submit to EPA a revision to the existing SIP committing to include the emissions in the future SIP revision. * * * * *

(iii) The action (or portion thereof) fully offsets its emissions within the same nonattainment or maintenance area (or nearby area of equal or higher classification provided the emissions from that area contribute to the violations, or have contributed to violation in the past, in the area with the Federal action) through a revision to the applicable SIP or an equally enforceable measure that effects


### 17277 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations emissions reductions equal to or greater than the total of direct and indirect emissions from the action so that there is no net increase in emissions of that pollutant;

(iv) Where EPA has not approved a revision to the relevant SIP since the area was designated or reclassified, the total of direct and indirect emissions from the action for the future years (described in § 93.159(d)) do not increase emissions with respect to the baseline emissions:

(A) * * * ( 1 ) The most current calendar year with a complete emission inventory available before an area is designated unless EPA sets another year; or

(2) The emission budget in the applicable SIP; * * * * *

(B) The baseline emissions are the total of direct and indirect emissions calculated for the future years (described in § 93.159(d)) using the historic activity levels (described in paragraph (a)(5)(iv)(A) of this section) and appropriate emission factors for the future years; or * * * * * ■ 15. Section 93.159 is amended as follows: ■ a. Revising paragraphs (b) introductory text and (b)(1)(ii); ■ b. Revising paragraphs (b)(2) and (c) introductory text; and ■ c. Revising paragraph (d).

The revisions and additions read as follows: **§ 93.159 Procedures for conformity determinations of general Federal actions.**  * * * * *

(b) The analyses required under this subpart must be based on the latest and most accurate emission estimation techniques available as described below, unless such techniques are inappropriate. If such techniques are inappropriate, the Federal agency may obtain written approval from the appropriate EPA Regional Administrator for a modification or substitution, of another technique on a case-by-case basis or, where appropriate, on a generic basis for a specific Federal agency program.

(1) * * * (ii) A grace period of 3 months shall apply during which the motor vehicle emissions model previously specified by EPA as the most current version may be used unless EPA announces a longer grace period in the Federal Register. Conformity analyses for which the analysis was begun during the grace period or no more than 3 months before the Federal Register notice of availability of the latest emission model may continue to use the previous version of the model specified by EPA.

(2) For non-motor vehicle sources, including stationary and area source emissions, the latest emission factors specified by EPA in the ‘‘Compilation of Air Pollutant Emission Factors’’ (AP–42, http://www.epa.gov/ttn/chiefs/efpac) must be used for the conformity analysis unless more accurate emission data are available, such as actual stack test data from the stationary sources which are part of the conformity analysis.

(c) The air quality modeling analyses required under this subpart must be based on the applicable air quality models, data bases, and other requirements specified in the most recent version of the ‘‘Guideline on Air Quality Models.’’ (Appendix W to 40 CFR part 51). * * * * *

(d) The analyses required under this subpart must be based on the total of direct and indirect emissions from the action and must reflect emission scenarios that are expected to occur under each of the following cases:

(1) The attainment year specified in the SIP, or if the SIP does not specify an attainment year, the latest attainment year possible under the Act; or

(2) The last year for which emissions are projected in the maintenance plan;

(3) The year during which the total of direct and indirect emissions from the action is expected to be the greatest on an annual basis; and

(4) Any year for which the applicable SIP specifies an emissions budget. ■ 16. Section 93.160 is amended as follows: ■ a. Revising paragraph (e); ■ b. Revising paragraph (f); and ■ c. Revising paragraph (g). **§ 93.160 Mitigation of air quality impacts.** * * * * *

(e) When necessary because of changed circumstances, mitigation measures may be modified so long as the new mitigation measures continue to support the conformity determination. Any proposed change in the mitigation measures is subject to the reporting requirements of § 93.156 and the public participation requirements of § 93.157.

(f) Written commitments to mitigation measures must be obtained prior to a positive conformity determination and such commitments must be fulfilled.

(g) After a State or Tribe revises its SIP or TIP and EPA approves that SIP revision, any agreements, including mitigation measures, necessary for a conformity determination will be both State or tribal and federally enforceable. Enforceability through the applicable SIP or TIP will apply to all persons who agree to mitigate direct and indirect emissions associated with a Federal action for a conformity determination. ■ 17. Subpart B is amended by adding § 93.161 to read as follows: **§ 93.161 Conformity evaluation for Federal installations with facility-wide emission**  **budgets.**

(a) The State, local or tribal agency responsible for implementing and enforcing the SIP or TIP can in cooperation with Federal agencies or third parties authorized by the agency that operate installations subject to Federal oversight develop and adopt a facility-wide emission budget to be used for demonstrating conformity under § 93.158(a)(1). The facility-wide budget must meet the following criteria:

(1) Be for a set time period; (2) Cover the pollutants or precursors of the pollutants for which the area is designated nonattainment or maintenance;

(3) Include specific quantities allowed to be emitted on an annual or seasonal basis;

(4) The emissions from the facility along with all other emissions in the area will not exceed the emission budget for the area;

(5) Include specific measures to ensure compliance with the budget, such as periodic reporting requirements or compliance demonstration, when the Federal agency is taking an action that would otherwise require a conformity determination;

(6) Be submitted to EPA as a SIP revision;

(7) The SIP revision must be approved by EPA.

(b) The facility-wide budget developed and adopted in accordance with paragraph (a) of this section can be revised by following the requirements in paragraph (a) of this section.

(c) Total direct and indirect emissions from Federal actions in conjunction with all other emissions subject to General Conformity from the facility that do not exceed the facility budget adopted pursuant to paragraph (a) of this section are ‘‘presumed to conform’’ to the SIP and do not require a conformity analysis.

(d) If the total direct and indirect emissions from the Federal actions in conjunction with the other emissions subject to General Conformity from the facility exceed the budget adopted pursuant to paragraph (a) of this section, the action must be evaluated for conformity. A Federal agency can use the compliance with the facility-wide


### 17278 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations emissions budget as part of the demonstration of conformity, i.e., the agency would have to mitigate or offset the emissions that exceed the emission budget.

(e) If the SIP for the area includes a category for construction emissions, the negotiated budget can exempt construction emissions from further conformity analysis. ■ 18. Subpart B is amended by adding § 93.162 to read as follows: **§ 93.162 Emissions beyond the time period covered by the SIP.** 

If a Federal action would result in total direct and indirect emissions above the applicable thresholds which would be emitted beyond the time period covered by the SIP, the Federal agency can:

(a) Demonstrate conformity with the last emission budget in the SIP; or

(b) Request the State or Tribe to adopt an emissions budget for the action for inclusion in the SIP. The State or Tribe must submit a SIP or TIP revision to EPA within 18 months either including the emissions in the existing SIP or establishing an enforceable commitment to include the emissions in future SIP revisions based on the latest planning assumptions at the time of the SIP revision. No such commitment by a State or Tribe shall restrict a State’s or Tribe’s ability to require RACT, RACM or any other control measures within the State’s or Tribe’s authority to ensure timely attainment of the NAAQS. ■ 19. Subpart B is amended by adding § 193.163 to read as follows: **§ 93.163 Timing of offsets and mitigation measures.** 

(a) The emissions reductions from an offset or mitigation measure used to demonstrate conformity must occur during the same calendar year as the emission increases from the action except, as provided in paragraph (b) of this section.

(b) The State or Tribe may approve emissions reductions in other years provided:

(1) The reductions are greater than the emission increases by the following ratios: (i) Extreme nonattainment

areas .................................... 1.5:1 (ii) Severe nonattainment

areas .................................... 1.3:1 (iii) Serious nonattainment

areas .................................... 1.2:1 (iv) Moderate nonattainment

areas .................................... 1.15:1 (v) All other areas ................. 1.1:1

(2) The time period for completing the emissions reductions must not exceed twice the period of the emissions. (3) The offset or mitigation measure with emissions reductions in another year will not:

(i) Cause or contribute to a new violation of any air quality standard,

(ii) Increase the frequency or severity of any existing violation of any air quality standard; or

(iii) Delay the timely attainment of any standard or any interim emissions reductions or other milestones in any area.

(c) The approval by the State or Tribe of an offset or mitigation measure with emissions reductions in another year does not relieve the State or Tribe of any obligation to meet any SIP or Clean Air Act milestone or deadline. The approval of an alternate schedule for mitigation measures is at the discretion of the State or Tribe, and they are not required to approve an alternate schedule. ■ 20. Subpart B is amended by adding § 93.164 to read as follows: **§ 93.164 Inter-precursor mitigation measures and offsets.** 

Federal agencies must reduce the same type of pollutant as being increased by the Federal action except the State or Tribe may approve offsets or mitigation measures of different precursors of the same criteria pollutant, if such trades are allowed by a State or Tribe in a SIP or TIP approved NSR regulation, is technically justified, and has a demonstrated environmental benefit. ■ 21. Subpart B is amended by adding § 93.165 to read as follows: **§ 93.165 Early emission reduction credit programs at Federal facilities and**  **installation subject to Federal oversight.**

(a) Federal facilities and installations subject to Federal oversight can, with the approval of the State or tribal agency responsible for the SIP or TIP in that area, create an early emissions reductions credit program. The Federal agency can create the emission reduction credits in accordance with the requirements in paragraph (b) of this section and can use them in accordance with paragraph (c) of this section.

(b) Creation of emission reduction credits.

(1) Emissions reductions must be quantifiable through the use of standard emission factors or measurement techniques. If non-standard factors or techniques to quantify the emissions reductions are used, the Federal agency must receive approval from the State or tribal agency responsible for the implementation of the SIP or TIP and from EPA’s Regional Office. The emission reduction credits do not have to be quantified before the reduction strategy is implemented, but must be quantified before the credits are used in the General Conformity evaluation.

(2) The emission reduction methods must be consistent with the applicable SIP or TIP attainment and reasonable further progress demonstrations.

(3) The emissions reductions cannot be required by or credited to other applicable SIP or TIP provisions.

(4) Both the State or Tribe and Federal air quality agencies must be able to take legal action to ensure continued implementation of the emission reduction strategy. In addition, private citizens must also be able to initiate action to ensure compliance with the control requirement.

(5) The emissions reductions must be permanent or the timeframe for the reductions must be specified.

(6) The Federal agency must document the emissions reductions and provide a copy of the document to the State or tribal air quality agency and the EPA regional office for review. The documentation must include a detailed description of the emission reduction strategy and a discussion of how it meets the requirements of paragraphs (b)(1) through (5) of this section.

(c) Use of emission reduction credits. The emission reduction credits created in accordance with paragraph (b) of this section can be used, subject to the following limitations, to reduce the emissions increase from a Federal action at the facility for the conformity evaluation.

(1) If the technique used to create the emission reduction is implemented at the same facility as the Federal action and could have occurred in conjunction with the Federal action, then the credits can be used to reduce the total direct and indirect emissions used to determine the applicability of the regulation as required in § 93.153 and as offsets or mitigation measures required by § 93.158.

(2) If the technique used to create the emission reduction is not implemented at the same facility as the Federal action or could not have occurred in conjunction with the Federal action, then the credits cannot be used to reduce the total direct and indirect emissions used to determine the applicability of the regulation as required in § 93.153, but can be used to offset or mitigate the emissions as required by § 93.158.

(3) Emissions reductions credits must be used in the same year in which they are generated.

(4) Once the emission reduction credits are used, they cannot be used as credits for another conformity evaluation. However, unused credits


### 17279 Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations from a strategy used for one conformity evaluation can be used for another conformity evaluation as long as the reduction credits are not double counted. (5) Federal agencies must notify the State or tribal air quality agency responsible for the implementation of the SIP or TIP and EPA Regional Office when the emission reduction credits are being used. [FR Doc. 2010–7047 Filed 4–2–10; 8:45 am] **BILLING CODE 6560–50–P**


# c

( 119 STAT. 1878 

### PUBLIC LAW 109-59-AUG. 10, 2005 (1) DEVELOPMENT.-The Secretary shall develop a nation· wide programmatic agreementfoverning the review ofactivities that support the deployment o intelligent transportation infra· structure and s:ystems in accordance with section 106 of the National Histone Preservation Act (16 U.S.C. 470f) and the 

### regulations of the 

### Advisory Council on Historic Preservation. (2) CONSULTATION.-The Secretary shall develop the 

### "!l""'· ment under paragraph (1) in consultation with the National Conference of State Historic Preservation Officers and the Advisory Council on Historic Preservation established under title 

### TI of the National Historic Preservation Act 

### (26 U.S.C. 470i et seq.) and after 

### soliciting the views of other interested parties. (c) INTELLIGENT TRANSPORTATION INFRASTRUCI'URE AND SYS· TEMS DEFINED.-In this section, 

### the tenn ''intelligent transportation infrastructure and**~>'Btems"** 

### means intelligent transportation infrastructure and intelligent transportation systems, as such tenns are defined in subtitle C oftitle V 

### ofthis Act. SEC. 8011. TRANSPORTATION CONFORMITY. 

### (a) CONFORMITY REDETERMINATIONS.-Section 176(c)(2) of the Clean Air Act 

### (42 U.S.C. 7506(c)(2)) is amended by adding at the end the following: "(E) The appropriate metropolitan planning organization shall redetennine conformity of existing transportation plans and programs not later than 

### 2 years after 

### the date on which the Adminjstrator- 

### 'Xi) finds a motor vehicle emiasions budget to be 

### adequate in accordance with section 93.118(e)(4) oftitle 40, Code ofFederal Regulations (as in effect on October 1, 

### 2004); "(ii) approves an implementation plan that establishes a motor vehicle emissions budget if

### that budget has not yet been detannined to be adequate in accordance with clause (i); 

### or "(iii) promulgates an implementation plan that establishes or revises a motor vehicle emissions budget.". (b) FREQUENCY OF CONFORMITY DETERMINATION UPDATES.- Section 176(c)(4)(B)(ii) of the Clean Air Act (42 U.S.C. 7506(c)(4)(BXii)) is amended to read as follows: "(ii) address the appropriate frequency for making con· formity detenninations, but the frequency for making con· formity determinations on updated transportation plans and programs shall be every 4 years, except in a case in which- "(!) 

### the metropolitan planning organization elects to update a transportation plan or program more frequently; or 

### "(TI) the metropolitan planning organization is 

### required to detennine conformity in accordance with paragraph (2)(E); and". (c) 'I'IM:E HORIZON FOR CONFORMITY DETERMINATIONS IN NON· ATTAINMENT 

### AREAs.-Section 176(c) of the Clean Air Act 

### (42 U.S.C. 7506(c)) is amended by adding at the end the following: "(7) CONFORMITY HORIZON FOR TRANSPORTATION PLANS.- "(A) IN GENERAL.-Each conformity detennination required under this section for a transportation plan under



### NMED Exh. 6

### PUBLIC LAW 109-59-AUG. 10, 2005 119 STAT. 1879 section 134(i) of title 23, United States Code, or section 5303(i) of title 49, United States Code, shall require a demonstration of conformity for the period ending on either the rwal year of the transportation plan, or at the election of the metropolitan planning orgamzation, after consultation with the air 

### pollution control agency and solicitation of public comments and consideration of such comments, the longest ofthe following periods: "(i) The first 10-year period of any such transportation plan. "(ii) The latest year in the implementation plan applicable to the area that contains a motor vehicle emission budget. "(iii) 

### The year after the completion date of a regionally significant project if 

### the project is included in the transportation improvement program-or the project requires approval before the subsequent conformity determination. "(B) 

### REGIONAL EMISSIONS ANALYBIS.-The conformity determination shall be 

### accom'fanied by a regional emissions analysis for the last year o the transportation plan and for any year shown to exceed emission budgets by a prior analysis, if 

### such year extends beyond the applicable period as determined under subparagraph (A). 

### "(C) ExCEPI'ION.-In any case in which an area has a revision to an implementation plan under section 175A(b) and the Administrator has found the motor vehicles emissions budgets from 

### that revision to be 

### adequate in accordance with section 93.118(eX4) of title 40, Code of Federal Regulations (as in effect on October 1, 2004), or has 

### approved the revision, the demonstration of conformity at the election of the metropolitan planning organization, after consultation with the air 

### pollution control agency and solicitation of public comments and consideration of such comments, shall be 

### required to extend only through the last year of the implementation plan required under section 175A(b). "(D) 

### EFFECT OF ELECTION.-Any election by a metropolitan planning organization under this paragraph shall continue in effect until the metropolitan planning organization elects otherwise. "(E) Arn 

### POLLUTION CONTROL AGENCY DEFINED.-In this paragraph, the term 'air 

### pollution control agency' means an air pollution control agency (as defined in section 302(b)) that is responsible for developing plans or controlling air 

### pollution within the area covered by a transportation plan.". (d) SUBSTITUTION OF TRANSPORTATION CONTROL MEAsURES.- Section 176(c) of the Clean Air 

### Act (42 U.S.C. 7506(c)) (as amended by subsection (c)) is amended by inserting after paragraph (7) the following: "(8) SUBSTITUTION OF TRANSPORTATION CONTROL MEAS· URES.- 

### "(A) IN GENERAL.- 

### Transportation control measures that are specified in an implementation plan may be replaced or added to the implementation plan with alternate or additional transportation control measures- 

# (

(

### 119 STAT. 

### 1880



# ·c··

/

Notice.

Deadline. 

### PUBLIC LAW 109-59-AUG. 10,2005 "(i) 

### if 

### the substitute measures achieve equivalent or greater emissions reductions thao 

### the control measure to be 

### replaced, as demonstrated with an emissions 

### impact analysis that is consistent with the current methodology used for evaluatin11 the replaoed con

### trol measure in 

### the implementation plan; "(ii) 

### if 

### the substitute control measures IU"e implemented- "(I) 

### in 

### accordance with a schedule that is consistent with the schedule ,Provided for control measures in the 

### implementation plan; or "(D) 

### if 

### the implementation plan 

### date for imJllementation of the 

### control meaaure to be replaced has 

### passed, as 

### soon 81! 

### practicable after the implementation plan date but not later than 

### the date on which emission reductions are nec

### essary to achieve 

### the purpose of the 

### implementa- tion plan; "(iii) 

### if the 

### substitute and additional control measures are acoompanied with evidence of adequate personnel and funding and autho::a under State or local law to implement, monitor, enforce the 

### control 

### measures; "(iv) 

### if the 

### substitute and additional control measures were 

### developed through a 

### collaborative process that included- "(!) 

### ,Participation by representatives of all affected Jurisdictions (including local air 

### pollution control 8118ncies, the 

### State air 

### pollution control**~cy,** 

### and State and local transportation allenc•es)· 

# '<m consultation with the 

### Adminiatrator; and "(DI) 

### reasonable public notice and opportunity for comment; 

### and "(v) 

### if the 

### matropolitan planning OFI!anization, State air 

### pollution control agency, ana the Administrator concur with the equivalency of the substitute or additional control measures. "(B) ADoP'!'ION.-(i) 

### Concurrence by the metropolitan planning oFI!anization, State air 

### pollution control 8118ncy and the Adminiatrator as reqnired by subplll"8graph (A)(v) shall constitute adoption of the substitute or aaditional control measures so 

### long as 

### the reqnirements of subplll"a- grapba <AXil, (A)(ii), 

### (AXili) and (AXiv) 

### are met. "(ii) 

### Once 

### adopted, the substitute or additional control measures become, by operation of law 1, 

### part of the State implementation plan and become federauy enforceable. "(ill) 

### Within 

### 90 days of its concurrence under subpara- graph (AXv), 

### the State air pollution control agency 

### shall submit the substitute or additional control measure to the Administrator for incorporation in 

### the codification of the applicable implementation plan. Nothwithstsnding any other provision of this 

### Act, no additional State process shall be 

### necessary to support such revision to the applicable plan. "(C) 

### No REQUIREMENT FOR EXPRESS PERMISSION.-Tba 

### substitution or addition of 

### a transportation control measure

### PUBLIC LAW 109-59---AUG. 10, 2005 119 STAT. 1881 in accordance with this paragraph and the funding or approval of such a control measure shall not be contingent on the existence of any provision in the applicable implementation plan that expressly permits such a substitution or addition. "(D) 

### No REQUIREMENT FOR NEW CONFORMITY DETERMINATION.-The substitution or addition of a transportation control measure in accordance with this paragraph shall not require-- 

### "(i) a new conformity determination for the transportation l'lan; or "(ii) 

### a revisiOn ofthe implementation plan. "(E) 

### CONTINUATION OF CONTROL MEASURE BEING REPLACED.-A control measure that is being replaced by a substitute control measure under this paragraph shall remain in effect until the substitute control measure is adopted by the State pursuant to subparagraph (B). "(F) EFFECT 

### OF ADOPTION .-Adoption of a substitute control measure shall constitute rescission of the previously applicable control measure.". (e) LAPSE OF CONFORMITY.-Section 176(c) of the Clean Air Act (42 U.S.C. 7606(c)) (as amended by subsections (c) and (d)) is amended by inserting after 

### paragraph (8) 

### the following: "(9) LAPSE OF CONFORMITY.-lf a conformity determination Deadline. 

### required under this subsection for a transportation J.llan under section 134(i) of title 23, United States Code, or section 6303(i) of title 49, United States Code, or a transportation improvement program under section 134(j) of such title 23 or under section 5303(j) of such title 49 is not made by the applicable deadline and such failure is not corrected by 

### additional measures to either reduce motor vehicle emissions sufficient to demonstrate compliance with the requirements of this subsection within 12 months after 

### such deadline or other measures sufficient to correct such failures, the transportation plan shall lapse. "(10) LAPSE.-ln this subsection, the term 1apse' means that the conformity determination for a transportation plan or transportation improvement program has expired, and thus there is no currently conforming transportation plan or transportation improvement program.". (f) 

### CONFORMING AMENDMENTS.-Section 176(c)(4) of the Clean Air Act 

### (42 U.S.C. 7506(cX4)) (as amended by subsection (b)) is amended- (1) by redesigntiting**su~aragrapha** (B), 

### (C), and (D) 

### as subparagrapha (D), (E), 

### and**(~"),** 

### respectively; (2) by striking "(4XA) No later than one year after the date of enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate" and inserting the following: "(4) CRITERIA AND PROCEDURES FOR DETERMINING CONFORMITY.- "(A) 

### IN GENERAL.-The Administrator shall promulgate, and periodically update,"; 

### (3) in the second sentence of subparagraph (A}- 

### (A) by striking ''No later than one year after such date of enactment, the Administrator, with the concurrence of the Secretary of Transportation, shall promulgate" and inserting the following: 

# (



# (

# ()

( 119 STAT. 1882 PUBLIC LAW 109-59-AUG. 10, 2005

Deadline.



### Deadline. 42 

### USC7506 note.

Deadline.

Roporls. 

### "(B) TRANSPORTATION PLANS, PROGRAMS, AND 

### PROJECTS.-The Administrator, with the concurrence of the Secretary of Transportation, shall promulgate, and periodi

### cally update,"; and (B) 

### in the third sentence, by striking "A suit" and inserting the following: "(C) CML ACTION TO COMPEL PROMULGATION.-A civil 

### action"· and (4) by

### ~triking subparagraph (E) (as 

### redesignated by paragraph (1)) and inserting the following: "(E) INCLUSION OF CRITERIA AND 

### PROCEDURES IN 

### SIP.- Not later than 2 years after the date of enactment of the SAFETEA-LU the procedures uoder subparagraph (A) 

### shall include a requirement that each State include in the State implementation plan criteria and procedures for consultation required by subparagraph (D)(i), and enforcement and enforceability (pursuant to sections 93.125(c) and 93.122(aX4){ii) of title 40, Code of Federal Regulations) in accordance with the Administrator's criteria and procedures for consultation, enforcement and enforceability.". (g) REGULATIONS.-Not later than 2 years after the date of enactment of this Act, 

### the Administrator of the Environmental Protection Agency shall promulgate revised regulations to implement the changes made by this section. SEC. 6012. FEDERAL REFERENCE METHOD. 

### (a) IN GENERAL.-Section 6102(e) of the Transportation Equity Act 

### for the 21st Century (42 U.S.C. 7407 note; 112 Stat. 464- 465) is amended to read as follows: "(e) FIELD STUDY.-Not later than 2 years after the date of enactment ofthe SAFETEA-LU, the Administrator shall- "(1) conduct a field study of the ability of the PM.., Federal Reference Method to differentiate those particles that are larger than 2.5 micrometers 

### in diameter; 

### "(2) develop a Federal reference method to measure directly particles that are larger than 2.5 micrometel'!l in diameter without reliance on subtracting from coarse particle measurements those particles that are 

### equal to or smaller than 2.5 micrometers 

### in diameter; "(3) 

### develop a method of measuring the composition of coarse particles; and 

### "(4) submit a report on the study and responsibilities of 

### the Administrator uoder paragraphs (1) 

### through (3) to- "(A) 

### the Committee on Energy and Commerce of the House ofRepresentatives; and "(B) 

### the Committee on Environment and Public Works ofthe Senate.". SEC. 6018. AIR QUALITY MONITORING DATA INFLUENCED BY EXCEP· 

### TIONAL EVENTS. (a) IN GENERAL.-Section 319 of the Clean Air Act (42 U.S.C. 7619) is amended- (1) by striking the section heading and all that follows through "after notice and opportunity for public hearing'' and inserting the following:

# c,

( Page 4529 TITLE 42-THE PUBUC HEALTH AND WELFARE § 7508. Limitations on certain Federal a

.. latance (a), (b) Repealed. Pub. L 101-5411, title I, §110(4), New. 15, 1990, 104 Stat. 2470 (c) Actlvttlee not confonnlng to approved or prOoo mulgatad plan• (1) No department, agency, or Instrumentality of lhe Federal Government shall engags ln. support In any way or provide financial assistance for, license or panntt, or approve, any activity which does not confonn to an Implementation plan after It has been approved or promulgated under section 7410 of this title. No metropolitan planning organization designated under section 134 of title 23, shall give lis approval 

### to any project, program, or plan which does nat conform to an implementation plan approved or promulgated under section 7410 of this title. The assurance of confonntty to such an Implementation plan shall be an affirmative responsibility of lhe heed of such department, agency, or Instrumentality. Confonnlty to an Implementation plan means- (A) confonnlty to an Implementation plan's purpose of eliminating or reducing the severIty and number of violations of the national ambient air quality standards and achieving expeditious attainment of such standards: and

(B) that such activities will not-

(1) cause or contribute to any new vlolaUon of any standard In any area;

(II) lncreaselhe frequency or sever1ty of any existing vlolaUon of any standard In any area; or

(Ill) delaytlmely attainment of any standard or any required Interim emission reductions or other milestones In any area. The determination of conformity shall be based on the most recent estimates of emissions, and such estimates shall bs determined from lhe most recent population, employment. travel and congestion estimates as determined by**~e** metropolitan planning organization or other agency authorized to make such estimates.

(2) Any transportation plan or program developed pursuantto title 23 or chapter 53 of title 49 shall implement the transportation provisions of any applicable Implementation plan approved under this chapter applicable to all 

### or part of the area covered by such transportation plan or program. No Federal agency may approve, accept or fund any transportation plan, program or project unless such plan, program 

### or project has been found to conform to any applicable Implementation plan in effect under this chapter. In particular- (A) no transportation plan or transportation Improvement program may be adopted by a metropolitan planning organization desIgnated under title 23 or chapler 53 of title 49, or be found to be In conformity by a metropolitan planning organization until a final determination has been made that emissions expected from Implementation of such plans and programs are consistent with estimates of emissions from motor vehicles and necessary emissions reductions contained In the applicable implementation plan, and that the plan or program will conform to the requirements of paragraph (1 )(B);



### 1996 U.S. Code f7508

NMED Exh. 6-a§7506 TITLE 42-THE PUBLIC HEALTH AND WELFARE Page 4530 (B) no metropolitan planning organization conformity determination for the transporor other recipient of funds under title 23 or tation program or for the individual project chapter 53 of title 49 shall adopt or approve a taken as a whole during the environmental retransportatlon Improvement program of view phase of project development projects until It determines that such program (4)(A) No later than one year after November provides for timely implementation of trans- 15, 1990, the Administrator shall promulgate crlportatlon control measures consistent with teria and procedures for determining conformity schedules Included In the applicable imple- (except In the case of transportation plans, promentation plan; grams, and projects) of, and for keeping the Ad-

(C) a transportation project may be adopted minlstrator Informed about, the activities reor approved by a metropolitan planning orga- ferred to In paragraph (1). No later than one nlzatlon or any recipient of funds designated year after November 15, 1990, the Administrator, under title 23 or chapter 53 of title 49, or found with the concurrence of the Secretary of TransIn conformity by a metropolitan planning or- portation, shall promulgate criteria and proceganizatlon or approved, accepted, or funded by dures for demonstrating and assuring conformthe Department of Transportation only If It lty In the case of transportation plans, promeets either the requirements of subpara- grams, and projects. A suit may be brought graph (D) or the following requirements- against the Administrator and the Secretary of (I) such a project comes from a conforming Transportation under section 7604 of this title to plan and program; 1 1 f ch ·t ri d

(II) the design concept and scope of such compel promu gat on o su en e a an proceproject have not changed significantly since dures and the Federal district court shall have the conformity finding regarding the plan jurisdiction to ordersuch promulgation. and program from which the project derived; (B) The procedures and criteria shall, at a and mlnimum-

(ili) the design concept and scope of such (I) address the consultation procedures to be project at the time of the conformity deter- undertaken by metropolitan planning organimination for the program was adequate to zatlons and the Secretary of Transportation determine emissions. with State and local air quality agencies and State departments of transportation before (D) Any project not referred to in subpara- such organizations and the Secretary make graph (C) shall be treated as conforming to the conformity determinations; applicable implementation plan only If It is (II) address the appropriate frequency for demonstrated that the projected emissions maklng conformity determinations, but in no from such project, when considered together case shall such determinations for transporwith emissions projected for the conforming tatlon plans and programs be less frequent transportation plans and programs within the than every three years; and nonattalnment area, do not cause such plans (Iii) address how conformity determinations and programs to exceed the emission reduc- will be made with respect to maintenance tlon projections and schedules assigned to plans. such plans and programs in the applicable im- (C) Such procedures : shall also lncluCie a replementatlon plan. qulrement that each State shall submit to :.the (3) Until such time as the Implementation Administrator and ttie Sec

- retary of**Transpo r~**  plan revision referred to In paragraph (4)(C) Is tatlon within 24 months of November 15; ' 1990, a approved, conformity of such plans, programs, revision

_ tci Its Implementation plan that Inand projectswill be demonstrated If- eludes criteria and

-procedures for assessing the (A) the transportation plans and programs- conformity of any plan, program, ·or piojeet sub-

(I) are conslstentwlth the most recent es- 

### J ct t the

- - f< lty 1 t f thl

.. timates of mobile source emissions; e 0

- · con orm - requ ramen s 0 s su..,.

(II) providefor the expeditious lmplemen- section: tation of transportation control measures In [NOTE -the above language was deleted by the applicable implementation plan; and the 2005 SAFETEA-LU amendments to the

(ill) with respectto ozone and carbon mon- CAA, along with other changes not shown oxide nonattainment areas, contribute to here) annual emissions reductions consistent with (D) Compllancewith the rules of the Admlnlssectlons 7511a(bX1) and 7512a(aX7) of this trator for determining the conformity of transtitle; and portatlon plans, programs, and projects funded (B) the transportation projects- or approved under title 23 or chapter 53 of title

(i) come from a conforming transportation 49 to State or Federal Implementation plans plan and program as defined In subparagraph shall not be required for traffic signal synchro- (A) or for 12 months after November 15, 1990, nlzation projects prior to the funding, approval from a transportation program found to con- or Implementation of such projects. The supform within 3 years prior to November 15, porting regional emissions analysis for any con1990; and formity determination made with respect to a

(II) in carbon monoxide nonattainment transportation plan, program, or project shall areas, eliminate or reduce the severity and consider the effect on emissions of any such number of violations of the carbon monoxide project funded, approved, or implemented prior standards in the area substantially affected to the conformity determination. by the project. (5) APPLICABILITY.-This subsection shall apply only with respectto-- With regard to subparagraph (B)(ii), such de- (A) a nonattalnment area and each pollutant termination may be made as part of either the for which the area Is designated as a nonattainment area; and 

# .....

1996 U.S. Code NMED Exh. 6-a 

# (

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# AFFIDAVIT

# 0-FfP**UBLICATI~ON ~**  • :. :t: ;



# . ' 

## STA'I:E OF NEW MEXICO County of Bemalillo 

## ss

. . '·

·• 

## Linda MacEachen,**bein~** duly**swor~. ~eclarcs_and** **~}'.S** U!at**.~J:le** is Classified Advertis1ng Manager of The AlbuqueTque Jouroal,**~nd** that this newspaper**ls .~** **duly** qualified to publish !ega\ notices or advertisements within the meaning of 8ectio.J:l.3, Chapter**1~7,** Sc:!sion Laws

.of 1937, and that payment therefore has been made of asaessed ·as court cost; that 

### · th¢ n.o'tice, copy of which is heretG attached,
was published in said paper in the regular daily editiQri, fo£ 

### _L_ times, the firstpublication beirig oo U1e 

## J 

## i. day of 

# d,J\y

. 2o.l:L. l)JJd

## t~e**s~bsequent** consecutive publications on

### ------------------------~------------~-·~0

# ____

Sworn and subscribed before me, a Notary Public,**it:~ .**  and for the County(>.! Bernalillo and State of New MexiCO; 

### tf!is

. 

# Jl.day orJv**~.** 

## : of 

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### ...**~** ' • :a:**~:.** 1 

# .**~' ·** 

# ( New Mexico Commission ofPublic Records Administrative Law Division I205 Camino Carlos Rey Santa Fe, NM 87507 505-476-7907 

# ===-A,

__

ffidavit of**Pub!ic_at~~~** 

# in tht:_**Ne"'__M~ico** 

# Register I, Art 

## Bransford , certifY that the agency noted below has published legal notices or rules in the New Mexico Register, and that payment has been assessed by invoice for said legal notice or publication, which appeared on the date and in the volume and issue number noted 

## below. DateofPublication: 7/3112013 Agency: Volume: XXIV Issue#: 14 Environment Department Contact: Gail Cooke 

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Notice ofRulemalr.lng Hearing Notice Other Other Material Notice ofState Jmplemen1a1ion Revision Plan



### State ofNew Mexico, County of Santa Fe

# ~~gn~!~!:=or:ed**~efo~** [)re me on

# Thursday~, Augsust 01, 2013 

## Notary

# Publicc:::?'5J2 'f. \ 0 

### Louise Wood (My commission xpires: • 

# 5 17 ]
Affiant:

# ~**~** __ , , , ___ Publisher,

## N~;.,_,Merico Register 

### Date: 8/1/2013 ...Copies of thepublished material documented in this affidavit are enclosed- 

### (seal) Form SRC-2002-04 Revised July 2007

# (



# c New Me:deo Register I 

## Volume XXIV, Number 14/July**~1,** 

## 2013 495 

# Notices ofRulemaking and Proposed Rules
NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD
NEW MI!XICO ENVIRONMENTAL IMPROVEMENT BOARD 

### N(YI'ICE OF 

### RULEMAKINO HEARING The New Mexico Environmental Improvement Board ("Boord") will hold 8 public hearing on Oetober 8, 201.3 nt 1 0:00 a.m. nt the Orant County Bu.sm"'" and Con!Oronce Center, Fort Bayard 

### Room. 3031 Higbwny 180 East, Silver City, !'l"w Mexico. The purpose of the hcarlng IS 

### to eousider the matter of No. E!B 13..Q4(R). proposed -islon to the New Mexk<> Slalll Implementation Plan ("Sll'j "'garding Air Quali13' Control Regulation Part 

### 98 of 20.2 New Mexico Admiuist.radve Code (Conformi13' of Oenenol Federal Aetion to the State Implementation Plan) ("20.1.98 NMAC''). The proponent of this regul!IIOty aduption and ,.vision is the New Mexico Environment Department ("NMEE"). The purpose of the public. hcorlng Is. to consider and take possible aotoon 0110**peti~on** from NMED 

### to 

### repeal 20.2.98 NMAC. The proposed repenl is In 

### mponse to 

### lhe U.S. Environmenial Prote.Uon Agency's ("EPA") March 24, 2010 lli1!Cadments 

### to the rederal gcnenol <Oil!i>rmity rule, 40 CFR Part 93, Suhpel'l B

- Determining Confonnity of General Fedenol Actions to Stale or Fedenol Implementation Pions. 40 CPR 93 Subpart B 

### was amended to make the adoption and submittal of Omenol Conformity SIPs uptlonal rather than mondatory for 

### stateo. Upon aduption by the Board, the**"'~'Cal** of 20.2.98 NMAC woold be submittod 

### to EPA for incurporarion into New M""loo's SIP. The NMED will host an Informational upen house on the proposed repeal of 20.2.98 NMAC at the NMED Air Quality Bureau Office, S2S Camino del los Marquez, Suite l, Sunta Fe, New Mexico from I2:00p.m.· 3:00p.m. on September 4, 2013. To attend the informational upcn ho!J.!e, pl..,. contact Gail Conke at SOS-476-4319 or gail.cooke@ Slate.nm.us. The proposed revised ..,gulatlon may he**~iewed** during regu!Bt business hours 81 the NMED Air Quality Blll'OIIU office, 525 Camino del los M.,qu.._ Suite !• Santa Pe, New Mc:xico. Pull text ofNMED's proposed revised regulations 

### m available on NMED's web site at www.nmenv.statc.nm.us. or by contacting GaH Cooke at (SOS) 476-43 J9 Ot gall.cook<@state.nm.us. Tbe bearing will be conduc!<d**in~** 

### with 20.1.1 NMAC (Rulemaklng Procetiures

- Envlronmen!al Improvement Board), the 

### Env!ronmmtal Improvement Act, NMSA 1978,Seetlon 

### 74-1-9, the Air Quality Control Act Section, NMSA 1978,

### 74-2..0. and otbcr app!ieable procedur<S. All interested per,.>ns will be given =sonablc opportunity at the 

### hcerlng 

### to submit relevant evidence, dat.. views and arguments, orally or In writing, 10 Introduce ex!oibits, 

# and to examine witn....,_ Pmons wi&hing to p....m technicaiiOSI!n!ony milS! file will! the Boord a wrlu.n notioe of 

### intent 10 do so. The notice oflatent $hall: (!} Identify the person for whom the witru:..(es} will teorify; (2} identlfy eaclJ technical 

### witness lhat the 

### pmon intends to prosent and stote the qualifications nf the 

### wllm:ss, including a description of their education and work bstlcgrcund; (3) include a oopy ofthe di""" testimony nf each technical witness in narrative form; (4) Ust and attach eaclJ exhibit anticipated to be offered by that person at the hear!ng; and (S) attach the tCllt of any reoommended modifications to the proposed new and revised**~gulatiom.** Notices of intent for lhe hearing must be received in the Of!lce ofthe Board not later thBII 

### S:OO pm on September 18, 2013 and should reference the docket number, E!B I.l04(R), and tbe date ofthe hearing. Notices nf intent to preseot techoical testimony should be submitted to: Pam Castanedo, BoerdAdministratQI' Environmental Improvement Board P.O. 80Jt S469Sunta Fe, NM 87502 Phone: (SOS) 827·242S, Fax (50S) 827-0310 Any member of the gmcral public IIlii)' testify at the hearing. No prior notificatlon is required to present non-technical testimony at the heuing. Any such member may also offer exhibits jn connection with his testimony, so long as the exhibit is not unduly repd:itious ofthc testimony. A member ofthe general public who wishes to submit a written starement for the record, in lieu of providing oral testimony ot the hearing, shall file the written statement prior to the henrlng. or submtt it at the hearing. Persons having a disability and n=iing help Jn being e pert ofthis hearing process should contact Juan Carlos BUJ"'qo ofthe NMED Hui1Uill Resoum:s Bun:au by September 23, 2013 at 

### P.O. 80Jt 26110. 

### 1190**S~** 

### Francis Drive, Santa Fe, New Mexico, 8?S02, teiepb<>M 505-827-0424 

### or email

### Juancarlos. borrogo@snote.nm.us. TOY ._.. 

## pl"!"'
access hiJ number 

## m the New Meluco Raltl)' 

### Network aii-800-6S9-8331. 

### The Board mil)' make • d""islon on the proposed revised ref!Ulatlons at the oonclusion ofthe hearing. or the Boord may 

### convene a meetirig at a later dace to 

### consider action on lhe proposal. 

## NEW MEXICO GAME COMMISSION
STATE GAME COMMISSION PUBLIC MEETING AND RULE MAKING NOTIOJ 

### On Thuriday, August ll, 2013, beginning 

### at 8:00 a.m., In the Martinez HaU Theatre at New Mnleo Slate Unlvenlty Grub, 1!00 

### 3" Stnet. Graall, NM 

### B701G, the 

## s!llft Game Commission will meet In public session to hear and consider action as appropriate on the following: VBJles Caldi:no Narional P""""""' Recent Wildfire Jmpaol$10 Wildlife and**Habita~** Fiscal 

### Year 2013 Depredotion and Nuisance Ablltement Report, Bear and Cougar Harvest Update, Pueblo nf Santa Ana Pronghom Antelope**MII!IOjiCillen~** Habillll Stamp Sikes Act Citizen AdYisoly Commiu.c, Sun Juan Fbheties Projoct Update, Ha!<hery Overview. New**MC>~ico's** Slale Wlldllfe Action 

### Plan, Vehicle Wildlife Collisions, Depanment Pe"""""'l Overview, Not1hwcst Ana Office Update. Additionally they will hcor and consider action as appropriate 011**propose<~** and final amondments to the following rules: Revocations, Revocation Timeframes li>r Violators, Reservation of Two Elk LiC<:IlS<> for Non-profit Wish· Granting Organ!zarions, Director's Autio oril)' to Accommodate Disability or Medlcal**tmpaJnncn~** Proposed Amendment 

### to the Scientific and EduccUon Rules 19.3S.6 and !9.36.2 NMAC. Wild Turkey Management Update and Objectives 19.31.10 NMAC, Shooting Preserve in Chama, NM, Proposed Amendments to (19.31.12 NMAC) Ibex ond Bll!bery Sheep Man"i<f1lent, Migratory Came Birds 19.31.6 NMAC, Flseai Year 201 S Budget Requcot, Prupo$cd Amentlmenu to Game and Fish Ll<enscsl Pennits (19.30.9 NMAC) • Vendor Band Requil<lllCilt, and Proposed Amendments 

### to the Plsheri

.. Rule; 19.3!.4 and Manner end Method Rule 19.31.10 NMAC. They will hear general public comments (oommems ere Umlted to three minutes}. A clost::d executive 5ession is planned to djscuss. 

# (



# ( ' )

# (

1 

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6 7 8 9 10 11 12 13 

## 14 15 16 17 18 19 

# c'"!0 STATE OF NEW MEXICO**EMnRONMENTALI~ROVEMENTBOARD**



## IN THE MATTER OF PROPOSED AMENDMENTS TO 20.2.98 NMAC- CONFORMITY OF GENERAL FEDERAL ACTIONS TO THE STATE**I~LEMENTATION** 

## PLAN.

WRITTEN TESTIMONY OF GAIL COOKE Witness Qualifications: EIB 13-04(R)



## Gail Cooke is an Environmental Planner in 

## the Control Strategies Section ofthe Air Quality Bureau. She has worked in the Air Quality Bureau since June I999. Ms. 

## Cooke holds a bachelor degree in Environmental Design from Texas A&M University and a master degree in Urban and Regional Planning from Virginia Tech. Her resume is attached as Exhibit 1.

I. INTRODUCTION 

## Madame Chair and Members ofthe Board, I am here to 

## present the New Mexico Environment Department's ("Department") proposed repeal of20.2.98 New Mexico Administrative Code ("NMAC")- 

## Conformity of General Federal Actions to the State Implementation Plan. Exhibit 3 reflects the Department's proposed repeal in current NMAC format. During my testimony, l will refer to this regulation as Part 98. A. What is General Conformity? 

## In November 1993, EPA promulgated two sets ofregulations to implement Section I76(c) ofthe Clean Air Act. First, on November 24, EPA promulgated the Transportation Conformity Regulations, which apply to highways and mass transit. These regulations establish the criteria and procedures for determining whether transportation plans, programs, and projects funded under title 23 U.S.C(the Federal Transit Act) conform with the State Implementation Plan (SIP) (58 Fed. Reg. 62,188). Then, on November 30, EPA promulgated a second set of regulations, known as the General Conformity Rule, which apply to all other federal activities. This includes activities that are federally supported in any way or the Federal government provides fmancial assistance for licensing or permitting purposes. The Transportation and 

## General Conformity Rules ensured that other federal actions also conformed to the SIPs (58 Fed. Reg. 63,214). The purpose ofthe Federal General Conformity Rule is to:

• Ensure that federal activities do not cause or contribute to any new violation ofNational

Ambient Air Quality Standards ("NAAQS");

COOKE TESTIMONY- PAGE 1 NMEDExb.S

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4 

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15 

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20 21 22 

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## 31 32 33 34 35 36 37 38 39 (10 

## • Ensure that actions do not cause more frequent or severe violations ofthe NAAQS in areas where violations already exist; and • Ensure that attainment ofthe NAAQSs is not delayed.



## B. When is General Conformity Required? General conformity applies only to areas that have violated (are in nonattainment with) the NAAQS for the six criteria pollutants: carbon monoxide, sulfur dioxide, oxides ofnitrogen, particulate matter, ozone, and lead. To ensure that federal actions activities (other 

## than transportation projects) do not worsen air quality in nonattainment areas or interfere with State Implementation Plans (SIPs), which set the requirements for meeting EPA standards for air quality.According to the CAA§ 176 (c)(1)(B), general federal actions cannot:

• cause or contribute to new violations of

## the NAAQS; • increase 

## the frequency or severity ofexisting violations ofthe standards; or • delay attainment ofthe standards. 

## C. New Mexico's General Conformity Regulation (Part 98) States were required to submit their initial general conformity regulation to 

## EPA one year after the federal rule was promulgated in November of 1993 (58 Fed. Reg. 62,188). The State of New Mexico submitted Part 98 for incorporation into the State's SIP to EPA on November 17, 1994; however, this initial SIP was not approved by EPA. The initial SIP revision submitted for general conformity by 

## the State was not approved due to the fact that EPA considered many portions ofthe regulation to be not consistent with the requirements of40 

## CFR 51

- 

## Requirements for Preparation, Adoption, and Submittal of Implementation Plans. On July 18,1996, New Mexico submitted a completely revised general conformity SIP revision that included a completely recodified set of general conformity regulations. EPA published a direct final approval action for New Mexico's general conformity SIP revision on March 26, 1997 (63 Fed. Reg. 14,332). (Exhibit 4). EPA received one comment during the comment period. The commenter expressed concern that a portion ofthe state's general conformity SIP was more stringent 

## than the federal general conformity rule. EPA concurred, and issued a conditional approval ofNew Mexico's SIP submittal for Part 98 with the condition that New Mexico revise or remove portion ofPart 98. New Mexico removed Paragraph C ofSection of 110 ofPart 98 and 

## resubmitted the revised Part 99 in September of 1999. 

## II. PROPOSED REPEAL OF PART 98 The proposed repeal ofPart 98 is in response to amendments to the federal general conformity regulation, 40 

## CFR Part 93, Subpart B (Part 93, Subpart B) on March 24, 2010 

## (75 Fed. Reg. 17,254). 

## (Exhibit 5). A portion ofthe amendments to Part 93, Subpart B were in response to revisions made in August 2005, 

## to the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Exhibit 6) that removed the

COOKE TESTIMONY· PAGE 2

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## 9 10 II 

## 12 13 14 

## 15 16 

## 17 18 19 

## 20 21 

## 22 23

# c;;~ 26 27 28 29 30 31 32 33 34 35 36 37 38 

## requirement fur states to adopt and submit general conformity SIPs under the Clean Air Act. Before this revision to SAFETEA-LU, states were required to adopt regulatory SIPs that corresponded to the federal general conformity regulation Part 93, 

## Subpart B. 

## In its March 2010 revisions to Part 93, EPA made the adoption and submittal ofgeneral conformity SIPs optional rather than 

## mandatory for states (75 Fed. Reg. 17,258). The proposed repeal ofPart 98 will eliminate the need for the 

## New Mexico Environment Department to continually update the State's general conformity regulation to incorporate any revisions to the federal general conformity rule. Part 98 has also never been utilized in the State ofNew Mexico. The State currently has only one small particulate matter nonattainment area located in the Southern region ofthe state in Anthony, New Mexico, and this area does not include any federally funded facilities or lands. Moreover, even ifNew Mexico had 

## potentially affected nonattainment areas, as a practical matter repeal ofPart 98 would not affect any future general conformity determinations. As EPA stated in the preamble to the rule revisions, "If a State does not have a conformity SIP, then federal agencies must conduct their evaluation under the requirements of40 

## CFR 93.150-93.165, 

## These requirements are essentially the same as the requirements contained in the conformity SIPs. Therefore, there would be little difference in the enforceability ofthe regulations." 75 Fed. Reg. at 17,258-259. IU. OUTREACH Outreach was conducted for the proposed repeal ofPart 98 in the 

## form ofpublic notices (Exhibit 7) and an open house. The state received no comments from the public notices and no attendance at the open house. The Department does not foresee that the proposed repeal ofPart 98 will have an adverse impact on the citizens or businesses ofNew Mexico. Due to limited usefulness ofPart 98 and the potential resources needed to ensure that the 

## regulation corresponds with the federal general conformity regulation, the New Mexico Environment Department believes it would be the 

## most beneficial to the state to opt out ofthe general conformity SIP requirement, as allowed by the 

## new EPA regulations, by repealing Part 98.

V. CONCLUSION This concludes my testimony to the Board on our proposed revisions to Part 98. I respectfully request that the Board adopt this proposed SIP repeal at the conclusion of this hearing.

COOKE TESTIMONY· PAGE 3

# c STATE OF NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD
IN THE MATTER OF PROPOSED AMENDMENTS TO 20.2.98 

### NMAC- CONFORMITY OF GENERAL FEDERAL ACTIONS TO THE STATE IMPLEMENTATION PLAN. 

### Em I3-04(R)

NMED'S PROPOSED ORDER AND STATEMENT OF REASONS

1bis matter comes before the New Mexico Envirorunental Improvement Board (''Board'')
upon a petition filed by the New Mexico Envirorunent Department ("NMED" or "Department''), proposing repeal ofPart 98 of20.2 NMAC. The Board heard testimony from the Department and admitted exhibits into the record. 

## On October 8, 2013 the Board deliberated and voted to adopt the proposed repeal for the reasons that follow: STATEMENT OF REASONS I. The purpose of the "General Conformity" provisions of the federal Clean Air Act ("CAA'') is to ensure that federally supported activities (other than transportation projects) will not cause or contribute to, or increase the severity or frequency of, violations ofthe national ambient air quality standards ("NAAQS"). 2. Prior to 2005, CAA § 

### 176 (c) required among other things that states include in their state implementation plans ("SIPs'') criteria and procedures to assure the "conformity" of federal activities to the SIP, and to submit this "General Conformity" SIP to the U.S. Envirorunental Protection Agency ("EPA") for approval. 

## 3. New Mexico's General Conformity provisions are codified at Part 98 of 20.2 NMAC, which was approved as a SIP revision by EPA in 1997.

Effi No. 13-04 Proposed Statement ofReasons and Order Page I of3 NMEDExh.9

### 4. 

### In 2005, Congress enacted legislation entitled the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users" ("SAFETEA-LU"), which, among other things deleted the requirement that states adopt and submit General 

### Confonnity SIPs to EPA. 

## 5. Pursuant to the SAFETEA-LU amendments, in 2010 EPA revised the regulations governing General Conformity SIPs at 40 C.P.R. Part 51, Subpart W, in order to make adoption ofGeneral Conformity SIPs optional.


### 6. In 

## a state that does not have a General Confonnity SIP, the conformity of federal activities 

## to the state's SIP is governed by 40 C.P.R. Part 93, which contains requirements essentially identical to those specified for SIPs in 40 C.P.R. Part 51, Subpart W. The
absence ofa General ConfOrmity SIP therefore does change 

## the substantive requirements applicable to 

### federal actions.


### 7. General Conformity requirements apply only in NAAQS non-attainment areas. CAA 

### § 176(c)(5).
8. New Mexico contains only one geographically small non-attainment 

## area, for particulate

matter. Application ofthe General Conformity provisions has not been triggered 

### by any federal actions in that area. 9. Adopting period revisions to 

### Part 

### 98 of 20.2 NMAC to 

### stay current with federal requirements imposes administrative burdens on the Board and the Department but does

not result in any increased protection to 

### the environment.
10. Repeal ofPart 

### 98 of20.2 NMAC is in the public interest, 11. Pursuant to 20.1.300.A NMAC, any person may petition the Board for amendment of regulations within thejurisdiction ofthe Board.

EIB No. 13-04 Proposed Statement ofReasons and Order Page2 of3 NMEDExh.9 

# (.'

## ( 12. On June 24, 2013 NMED filed a petition with the Board 

## for a public hearing 

## in 

## this

matter.



# c 13. On 

## July 15, 2013, at a meeting conducted 

## in compliance with the Open Meetings Act and other applicable requirements, the Board granted the Department's request for a hearing. 14. On July 31, 2013, Notice ofHearing was published in the Albuquerque Journal 

## (in English and Spanish), and in the New Mexico Register. 15. NMED filed a Notice of Intent to 

## Present Technical Testimony (NOJ) on September 18, 2013, in accordance with 20.1.1.302 NMAC. 16. A hearing was held in 

## this matter on October 8, 2013 in 

## Silver City, New Mexico. 17. 

## The Board has the authority to approve these proposed amendments pursuant 

## to NMSA 1978 § 

## 74-2-S.C. 18. The proposed amendments satisfY 

## the statutory requirements of the Air Quality Control Act, NMSA 1978, Section 74-2-S.E. 19. The notice 

## and hearing requirements ofNMSA 1978 Section 74-2-6 and 20.1.1 NMAC

were satisfied 

## in this 

## rulemaking process. 20. The proposed amendments 

## are adopted fur any or all of

## the reasons stated above. 

## ORDER By majority vote ofa quorum ofthe Board members, the proposed regulatory revisions

.**~** 

## were approved by the Board on October 8, 2013. The repeal of20.2.98 NMAC shall be filed with the New Mexico State Records Center, and submitted to the U.S. EPA for appropriate action.

On 

## Behalfofthe Board

EIB No. 13-04 Proposed Statement ofReasons and Order Page3 of3 Dated:

________________ ___

NMEDExh.9I



### STATE OF NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD
IN THE MATTER OF 20.2.98 NMAC- CONFORMITY OF GENERAL FEDERAL ACTIONS TO THE STATE IMPLEMENTATION PLAN

ORDER AND STATEMENT OF REASONS EIB 13-04(R)



## This matter comes before the New Mexico Environmental Improvement Board ("Board")
upon a petition filed by the New Mexico Environment Department ("NMED" or "Department"), proposing repeal ofPart 98 of20.2 NMAC. The Board heard testimony from the Department and admitted exhibits into the record. On October 8, 2013 the Board deliberated and voted to adopt the proposed repeal for the reasons that follow:
STATEMENT OF REASONS 

## 1. The purpose of the "General Conformity" provisions of the federal Clean Air Act ("CAA'') is to ensure that federally supported activities (other than transportation projects) will not cause or -contribute to violations of the national ambient air quality
standards ("NAAQS").
2. Prior to 2005, CAA § 176 (c) required among other things that states include in their state implementation plans ("SIPs") criteria and procedures to assure the "conformity" of
federal activities to the SIP, and to submit this "General Conformity" SIP to the U.S. Environmental Protection Agency ("EPA") for approval.
3. New Mexico's General Conformity provisions are codified at Part 98 of 20.2 NMAC, which was approved as a SIP revision by EPA in 1999.

EIB No. 13-04 Statement ofReasons and Order Page 1 of4r



## 4. In 2005, Congress enacted legislation entitled the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users" ("SAFETEA-LU"), which, among other things deleted the requirement that states adopt and submit General Conformity SIPs to EPA.
5. Pursuant to the SAFETEA-LU amendments, in 2010 EPA revised the regulations governing General Conformity SIPs at 40 C.F.R. Part 51, Subpart W, in order to make adoption ofGeneral Conformity SIPs optional.
6. In 

## a state that does not have a General Conformity SIP, the conformity of federal activities to the state's SIP is governed by 40 C.F.R. Part 93, which contains requirements
that essentially duplicate those specified for SIPs in 40 C.F.R. Part 51, Subpart W. The
absence of a General Conformity SIP therefore does change the substantive requirements applicable to federal actions.
7. General Conformity requirements apply only in NAAQS non-attainment areas. CAA § 176(c)(5).
8. New Mexico contains only one geographically small non-attainment area, for particulate

matter. Application of the General Conformity provisions has not been triggered due to the lack of any federal facilities or lands in that area. 9. Adopting periodic revisions to Part 98 of 20.2 NMAC to stay current with federal requirements imposes administrative burdens on the Board and the Department but does

not result in any increased protection to the environment.
10. Repeal ofPart 98 of20.2 NMAC is in the public interest.
11. Pursuant to 20.1.300.A NMAC, any person may petition the Board for amendment of regulations within the jurisdiction ofthe Board.

EIB No. 13-04 Statement ofReasons and Order Page 2 of4r



## 12. On June 24,2013 NMED filed a petition with the Board for a public hearing in this

matter. 13. On July 15, 2013, at a meeting conducted in compliance with the Open Meetings Act and other applicable requirements, the Board granted the Department's request for a hearing.
14. On July 31,2013, Notice ofHearing was published in the Albuquerque Journal (in English and Spanish), and in the New Mexico Register. 15. NMED filed a Notice oflntent to Present Technical Testimony (NOI) on September 18, 2013, in accordance with 20.1.1.302 NMAC. 16. A hearing was held in this matter on October 8, 2013 in Silver City, New Mexico. 17. The Board has the authority to approve these proposed amendments pursuant to NMSA 1978 

## § 74-2-5.C. 18. The proposed amendments satisfy the statutory requirements of the Air Quality Control Act, NMSA 1978, Section 74-2-5.E, namely the Board has given weight it deems appropriate to all facts and circumstances, including but not limited to: (1) 

## character and degree ofinjury to or interference with health, welfare, visibility and property; (2) the public interest, including the social and economic value ofthe sources and subjects of air contaminants; and (3) technical practicability and economic reasonableness ofreducing or eliminating air contaminants from the sources involved and previous experience with equipment and methods available to control the air contaminants involved.

EIB No. 13-04 Statement ofReasons and Order Page 3 of4r



### 19. The notice and hearing requirements ofNMSA 1978 Section 74-2-6 and 20.1.1 NMAC

were satisfied in this rulemaking process. 20. The proposed amendments are adopted for any or all ofthe reasons stated above.
ORDER 

### By unanimous vote of a quorum ofthe Board members, the proposed regulatory revisions

were approved by the Board on October 8, 2013. The repeal of20.2.98 NMAC shall be filed with the New Mexico State Records Center, and submitted to the U.S. EPA for appropriate

# f/::)gd~ Deborah A. 

### Peacock, Chair On Behalfofthe Board

EIB No. 13-04 Statement ofReasons and Order Page 4 of4 Dated: _,___/ 

# v-+-/--+s 

# /_13

__ _ I I

### NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD NOTICE OF RULEMAKING HEARING The New Mexico Environmental Improvement Board ("Board") will hold a public hearing on October 8, 2013 at 10:00 a.m. at the Grant County Business and Conference Center, Fort Bayard Room, 3031 Highway 180 East, Silver City, New Mexico. The purpose of the hearing is to consider the matter of No. EIB 13-04(R), proposed revision to the New Mexico State Implementation Plan ("SIP") regarding Air Quality Control Regulation Part 98 of 20.2 New Mexico Administrative Code (Conformity of General Federal Action to the State Implementation Plan) ("20.2.98 NMAC"). The proponent of this regulatory adoption and revision is the New Mexico Environment Department ("NMED"). The purpose of the public hearing is to consider and take possible action on a petition from NMED to repeal 20.2.98 NMAC. The proposed repeal is in response to the U.S. Environmental Protection Agency’s ("EPA") March 24, 2010 amendments to the federal general conformity rule, 40 CFR Part 93, Subpart B – Determining Conformity of General Federal Actions to State or Federal Implementation Plans. 40 CFR 93 Subpart B was amended to make the adoption and submittal of General Conformity SIPs optional rather than mandatory for states. Upon adoption by the Board, the repeal of 20.2.98 NMAC would be submitted to EPA for incorporation into New Mexico’s SIP. The NMED will host an informational open house on the proposed repeal of 20.2.98 NMAC at the NMED Air Quality Bureau Office, 525 Camino del los Marquez, Suite 1, Santa Fe, New Mexico from 12:00p.m.- 3:00p.m. on September 4, 2013. To attend the informational open house, please contact Gail Cooke at 505- 476-4319 or gail.cooke@state.nm.us. The proposed revised regulation may be reviewed during regular business hours at the NMED Air Quality Bureau office, 525 Camino del los Marquez, Suite 1, Santa Fe, New Mexico. Full text of NMED's proposed revised regulations are available on NMED’s web site at www.nmenv.state.nm.us, or by contacting Gail Cooke at (505) 476-4319 or gail.cooke@state.nm.us. The hearing will be conducted in accordance with 20.1.1 NMAC (Rulemaking Procedures – Environmental Improvement Board), the Environmental Improvement Act, NMSA 1978,Section 74-1-9, the Air Quality Control Act Section, NMSA 1978,74-2-6, and other applicable procedures. All interested persons will be given reasonable opportunity at the hearing to submit relevant evidence, data, views and arguments, orally or in writing, to introduce exhibits, and to examine witnesses. Persons wishing to present technical testimony must file withthe Board a written notice of intent to do so. The notice of intent shall: (1) identify the person for whom the witness(es) will testify; (2) identify each technical witness that the person intends to present and state the qualifications of the witness, including a description of their education and work background; (3) include a copy of the direct testimony of each technicalwitness in narrative form; (4) list and attach each exhibit anticipated to be offered by that person at the hearing; and (5) attach the text of any recommended modifications to the proposed new and revised regulations. Notices of intent for the hearing must be received in the Office of the Board not later than 5:00 pm on September 18, 2013 and should reference the docket number, EIB 13-04(R), and the date of the hearing. Notices of intent to present technical testimony should be submitted to: Pam Castaneda, Board Administrator Environmental Improvement Board P.O. Box 5469 Santa Fe, NM 87502 Phone: (505) 827-2425, Fax (505) 827-0310

### Any member of the general public may testify at the hearing. No prior notification is required to present non-technical testimony at the hearing. Any such member may also offer exhibits in connection with his testimony, so long as the exhibit is not unduly repetitious of the testimony. A member of the general public who wishes to submit a written statement for the record, in lieu of providing oral testimony at the hearing, shall file the written statement prior to the hearing, or submit it at the hearing. Persons having a disability and needing help in being a part of this hearing process should contact Juan Carlos Borrego of the NMED Human Resources Bureau by September 23, 2013 at P.O. Box 26110, 1190 St. Francis Drive, Santa Fe, New Mexico, 87502, telephone 505-827-0424 or email juancarlos.borrego@state.nm.us. TDY users please access his number via the New Mexico Relay Network at 1-800-659-8331. The Board may make a decision on the proposed revised regulations at the conclusion of the hearing, or the Board may convene a meeting at a later date to consider action on the proposal.

### CONSEJO PARA LA MEJORA DEL MEDIO AMBIENTE DE NUEVO MÉXICO NOTIFICACIÓN DE REUNIÓN PÚBLICA Y AUDIENCIA DE REGLAMENTACIÓN La Junta de Mejora Ambiental de Nuevo México ("Junta") celebrará una audiencia pública el 3 08 De octubre de 2013 a las 10:00 a.m. en el este de negocios del Condado de Grant y centro de conferencias, sala de Fort Bayard, 3031 carretera 180, Siver City, Nuevo México. La finalidad de la audiencia es considerar el asunto de EIB 13-04(R), propuesta revisión al Plan de Implementación del Estado de Nuevo México (“SIP”) relativa a la Parte 98 de la Regulación de Control de la Calidad del Aire del Código Administrativo de Nuevo México 20.2 (Conformidad de Acción General Federal al Plan de Implementación del Estado) (“20.2.98 NMAC”). El proponente de esta adopción y revisión reguladora es el Departamento del Medio Ambiente de Nuevo México ("NMED"). La finalidad de la audiencia pública es considerar y posiblemente tomar acción sobre una petición de NMED para revocar 20.2.98 NMAC. La propuesta revocación es en respuesta a las enmiendas del 24 de marzo de 2010 de la Agencia de Protección Ambiental de los EE.UU. (“EPA”) a la regla federal de conformidad general, 40 CFR Parte 93, Subparte B – Determinando Conformidad de Acciones Generales Federales a los Planes de Implementación Estatales o Federales. 40 CFR 93 Subparte B fue enmendada para hacer opcional la adopción y sumisión de SIPs de Conformidad General en lugar de obligatorias para los estados. Tras la adopción por la Junta, la revocación de 20.2.98 NMAC sería enviada a la EPA para su incorporación en el SIP de Nuevo México. El NMED patrocinará una jornada informativa de puertas abiertas sobre la revocación propuesta de 20.2.98 NMAC en la Oficina del Departamento de Calidad del Aire del NMED, 525 Del Camino los Marquez, Suite 1, Santa Fe, Nuevo México de 12:00p.m.-3:00p.m. el 04De septiembre de 2013. Para asistir a la jornada informativa de puertas abiertas, por favor, póngase en contacto con Gail Cooke en el 505-476-4319 o gail.cooke@state.nm.us

. La regulación revisada propuesta podrá ser examinada en horario de oficina en la Oficina de la Agencia de Calidad del Aire del NMED, en 525 Del Camino los Marquez, Suite 1, Santa Fe, Nuevo México. El sitio en la Web del NMED, www.nmenv.state.nm.us ofrece el texto completo dela revisión propuesta; también se puede obtener contactando Gail Cooke, llamando al teléfono (505) 476-4319 o enviándole un correo electrónico a gail.cooke@state.nm.us. La audiencia se realizará de conformidad con 20.1.1 NMAC (Procedimientos de Reglamentación – Consejo para la Mejora del Medio Ambiente), la Ley de Me jora del Medio Ambiente, Sección 74-1-9 NMSA 1978, la Ley de Control de Calidad del Aire, Sección, 74-2-6 NMSA 1978, y otros procedimientos aplicables. Todas las personas interesadas tendrán oportunidad razonable en la audiencia de presentar pruebas, datos, opiniones y argumentos importantes, ya sea en forma verbal o por escrito, así como de presentar anexos e interrogar testigos. Las personas que deseen entregar testimonios técnicos deben presentar ante el Consejo una notificación por escrito de su intención. La notificación de intención deberá: (1) identificar a la persona para quientestificará(n) el(los) testigo(s); (2) identificar a cada uno de los testigos técnicos que las personas desean presentar y declarar las cualificaciones de los mismos, incluyendo una descripción de sus antecedentes de educación y trabajo; (3) resumir o incluir una copia del testimonio directo de cada testigo técnico y declarar la duración prevista del testimonio de ese testigo; (4) enumerar y describir, o adjuntar, cada uno de los anexos que dicha persona prevé ofrecer en la audiencia; y (5) adjuntar el texto de cualquier modificación recomendada a las regulaciones propuestas nuevas y revisadas. Las notificaciones de intención para la audiencia deben ser recibidas en la Oficina del Consejo a más tardar a las 5:00 p.m., el 18 de septiembre de 2013, y hacer referencia al número de expediente, EIB 13-04(R), y

### la fecha de la audiencia. Las notificaciones de intención para presentar testimonios técnicos se deben entregar a: Pam Castaneda, Administradora de la Junta Oficina de la Junta de Mejoramiento Ambiental Harold Runnels Building P.O. Box 5469 Santa Fe, NM 87502 Teléfono: (505) 827-2425, Fax (505) 827-0310 Cualquier miembro del público en general puede testificar en la audiencia. No se requiere notificación previa para presentar testimonios no técnicos en la audiencia. Los miembros del público también pueden ofrecer anexos en relación con su testimonio, en tanto no sean repeticiones excesivas de su testimonio. Los miembros del público en general que deseen presentar una declaración por escrito para el registro, en vez de ofrecer testimonio verbal enla audiencia, presentarán la declaración por escrito antes de la audiencia, o la presentarán en la misma. Las personas con discapacidad y que necesiten ayuda para ser parte de este proceso de la audiencia deberán contactar a Juan Carlos Borrego de la oficina de recurso humanos NMED por 23 de septiembre, 2013, P.O. Box 26110, 1190 St. Francis Drive, Santa Fe, Nuevo México, 87502, teléfono 505-827-0424 o correo electrónico juancarlos.borrego@state.nm.us. Los usuarios de TDY deben acceder a su número a través de la Red de Difusión de Nuevo México, al 1-800-659-8331. El Consejo puede tomar la decisión sobre las regulaciones propuestas revisadas a la conclusión de la audiencia, o bien acordar una reunión para una fecha posterior a fin de considerar las acciones sobre la propuesta.• •• •••• : V ·•. : 

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# New Mexico Commission of Public Records Administrative Law Division 1205 Camino Carlos Rey Santa Fe, NM 87507 505-476-7907 

# Affidavit of Publication in the 

# New Mexico Register I, Art Bransford , certify that the agency noted below has published legal notices or rules in the New Mexico Register, and that payment has been assessed by invoice for said legal notice or publication, which appeared on the date and in the volume and issue number noted below. Date ofPublication: 7/31 /2013 Agency: Volume: 

### XXIV Issue#: 14 Environment Department Contact: Gail Cooke Invoice# : 

### NMR-2014- 15 Amount: $86.00 Description: 525 camino de Los Marquez # 1 Santa Fe, NM 87505-

Notice of Rulemaking Hearing Notice Other Other Materi al Notice ofState Implementation R evision Plan



### (seal) State ofNew M exico , County of Santa Fe Signed and affirmed before me on Thursday, August 0 I, 201 3 b

y Art Bransford

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### New Mexico Regi s ter 

# U--------'- Date: 8 / 1

/2013

- Co pies of th ep ublished material document ed in this affidavit are enclosed

Fo rm SRC

-20 0 2

-04 Revi sed Jul y 2007

## New Mexico Register I 

## Volume XXIV, Number 14 I 

## July 31, 2013 495 

# Notices of Rulemaking and Proposed Rules
NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD
NEW MEXICO ENV IRO NMENTAL IMPROVEMENT BOARD NOTICE OF RULEMAKING HEARING
The New Mexico Environmental Improvement Board (" Boar d") wi ll hold a public hearing on October 8, 2013 at I0:00 a.m. at the Grant County Business and Confe r ence Center, Fort Bayard Room, 303 1 Highway 180 East, Silver City, New Mexico. The purpose of the hearing is to consider the matter of No. EIB 13-04(R), proposed revision to the New Mexico State Implementation Plan ("S IP") regarding Air Quality Control Regulation Part 98 of 20.2 New Mexico Administrative Code (Conformity of General Federal Action to the State Implementation Plan) ("20.2.98 NMAC " ).
The proponent of this regulatory adoption and revision is the New Mexico Environment Department ("NMED' ').
The purpo se of the public hearing is to consider and take possible action on a petition from NMED to repeal 20

.2.98 NMAC. The proposed repeal is in response to the U.S. Environmental Protection Agency's ("EPA") March 24, 20 I0 amendments to the federal general conformity rule , 40 CFR Part 93 , Subpart B

- Determining Conformity of General Federal Action s to State or Federal Implementation Plans. 40 CFR 93 Subpm1 B was amended to make the adopti on and submittal of General Conformity SlPs optional rather than mandatory for states. Upon adoption by the Board, the repeal of 20. 2.98 NMAC would be submitted to EPA for incorporation into New Mexico's SIP.
The NMED will host an inf ormatio nal open house on the proposed repeal of 20

.2.98 NMAC at the NMED Air Qualit y Bureau Office, 525 Camino del los Marquez, Suite I, Santa Fe, New Mexico from 12:00p.m.- 3:00p. m. on September 4, 20 13. To attend the informational ope n house , please contact Gail Cooke a t 505-476-43 19 or gail.cooke @ stat e. nm.us. The proposed revi sed regulation may be reviewed during regular business hours at the NMED Air Quali ty Bureau office, 525 Camino del los Marquez, Suite I , Santa Fe , New Mexico. Full text ofNMED 's proposed r evised r egul a tion s are availab le on NMED 's web site at www.nmenv.state. nm .us, or by contacting Gail Cooke at (505) 476-4 3 1 9 or gail.cooke@s tate.nm.us. The hearing wi ll be conducted in accordance with 20. 1.1 NMAC (Rulemaking P rocedures

- Environmental Improvement Board), the Environmental Improvem ent Act, NMSA 1978 ,Section 74-1-9, the Air Qualit y Control Act Section, NMSA 1978 ,74-2-6, and other applicable procedures

. All interested persons will be given reasonable opportunity at the hearing to submit relevant evidence, data, views and arguments, orally or in writing, to introduce exhibits, and to examine witnesses. P ersons wishing to present technical testimony mu st file with the Board a writt en notice of intent to do so . The notice of intent shall: (I) identify the person for whom t he witness(es) wi ll testify; (2) identify each technical witness that the person intends to present and state the qualifications of the witness, including a description of their education and work background; (3) include a copy of the direct testimony of each technical witness in narrative form ; (4) li st and attach each exhibit anticipated to be off er

ed by that person at the hearing; and (5) attach the t ext of any recommended modifications to the proposed new and r evised r egu lations

. Notices of intent for the he aring mu st be received in the Office of the Board not later than 5:00 pm on September 18, 2013 and should r eference the docket number, EIB 13- 04(R), and the date of the hearing. Notices of intent to present technical t estimony should be submitted to:
Pam Castaneda, Board Admini strator Environmental Improvement Board P.O. Box 5469Santa Fe, NM 87502 Phone: (505) 827-2425 , Fax (505) 827-03 10 Any member of the general public may testify a t the hearing . No prior notification is r equired to pre sent non-technical testimony at the hearing. Any such member may also offer exhibits in connection with his testi mony, so long as the exhibit is not unduly repetitious ofthe testimony. A member of the general public who wishes to submit a written statement for the record , in lieu of providing oral testimony at the hearing, shall fil e the written statement prior to the hearing, or subm it it at the hearing. P

ersons having a di sabi lit y and needing help in being a part ofthis hearing process should contact Ju an Carlos Borrego of the NMED Human Resources Bureau by September 23 , 2013 at P.O. Box 26110, 1190 St. Franci s Drive, Santa Fe, New Mexico, 87502 , telephone 505-827-0424 or emaiI juancarlos. borrego@state.nm.us. TOY users please access his number via the New Mexico Relay Network at 1-800-659-83 3 1.
The Board may make a decision on the proposed revised regulations at the conclusion of the hearing, or the Board may convene a meeting at a later date to consider action on the proposal. 

## NEW MEXICO GAME COMMISSION
STATE GAME COMMISSION PUBLIC MEETING AND RULE MAKING NOTICE
On Thursday, August 22, 2013 , beginning at 8:00a.m., in the Martinez Hall Theatre at New Mexico State University Grants, 1500 3 ' 11 Street, Grants, NM 87020, the State Game Commission will meet in public session to hear and consider action as appropriate on the following: Valles Caldera National P r eser ve, Recent W ildfire Impacts to Wildlife and Habitat, Fiscal Year 2013 Depredation and Nuisance Abatement Report, Bear and Cougar Harvest Update, Pueblo of Santa Ana Pronghorn Antelope Management, Habita t Stam p Sikes Act Citizen Advisor y Committee, San Juan Fisheries Project Update , Hatcher y Overview, New Mexico's State Wildlife Action Plan, Vehicle W ildlife Collisions, Department Personnel Overview, Northwest Area Office Update. Additionally they will hear and consider action as appropriate on proposed and fi nal am endments to the following rules: Revocations, Revoc ation Timeframes for Violators, R eservation of Two Elk Licenses for Non-profit WishGranting Organizations, Director's Authority to Accommodate Disabilit y or Medical Impairment, Proposed Amendment to the Scientific and Education Rules 19.35 .6 and 19. 36.2 NMAC, Wild Turkey Management Update and Obj ectives 19

.3 1.1 0 NMAC, Shooting Preserve in Chama, NM , Proposed Amendments to ( 19. 3 1.1 2 NMAC) Ibex and Barbar y Sheep Management, Migratory Game Birds 1 9.3 1.6 NMAC , Fiscal Year 20 15 Budget Request, Proposed Amendments to Game and Fish Licenses/ Permits ( 19. 30.9 NMAC)

- Vendor Bond Requirement, and P roposed Amendments to the Fisheries Rule, 1 9.3 1.4 and Manner and Method Rul e 19

.3 1.1 0 NMAC. They wi ll hear gene ral public comm ents (c omments are limited to three minutes)

. A clo sed executive session is planned to di scuss

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STATE OF NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD

No
. EIB 13

- 04 (R)
IN THE MATTER OF PROPOSED AMENDMENTS TO 20 .2. 98 NMAC

- CONFORMITY OF GENERAL FEDERAL ACTIONS TO THE STATE IMPLEMENTATION PLAN

TRANSCRIPT OF PROCEEDINGS

BE IT REMEMBERED that on the 8 th day of October , 2013 , the above

- entitled matter came on for hearing before the New Mexico Environmental Improvement Board , taken at the Grant County Veterans ' Memorial Business and Conference Center , 3031 Highway 180 East , Silver City , New Mexico , at the hour of 10 : 32 a.m.

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## 2

A P P E A R A N C E S
For the Environmental Improvement Board : DEBORAH PEACOCK GREGORY H. FULFER JOHN MICHAEL VOLKERDING , Hearing Officer TIMOTHY L. MORROW MATTHEW HOLT
For the New Mexico Environment Department :
BILL GRANTHAM Assistant General Counsel Office of General Counsel New Mexico Environment Department 1190 St
. Francis Drive Suite N- 4050 Santa Fe , New Mexico 87505 ( 505 ) 222

- 9594 bill
. grantham @ state
. nm . us

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I N D E X
PAGE
WITNESSES : GAIL COOKE and RITA BATES Direct Examination of Gail Cooke by
Mr
. Grantham 7 Examination by the Board 13

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## 4

E X H I B I T S
ADMITTED
NMED : 1. Resume of Gail Cooke 12 2. Resume of Rita Bates 12 3. Proposed Repeal of 20 .2. 98 NMAC 12
4. 63 Federal Register 48 , 106 ( September 9, 1998 ) - Approval of New Mexico General Conformity Regulations 12
5. 75 Federal Register 17 , 254 ( April 5, 2010 ) - Revisions to Federal General Conformity Regulations 12 6. Excerpt from SAFETEA

- LU ( Pub
. Law 109

- 59 , August 10 , 2005 ) 12 6a. Excerpt from CAA Section 176 prior to revision by SAFETEA

- LU ( 1996 US Code ) 12
7. Affidavits of publication of hearing notice 12 8. Written Testimony of Gail Cooke 12 9. NMED 's Proposed Order and Statement of
Reasons 12

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## 5

MS
. PEACOCK : We ' ll move on to item number 7, hearing in EIB 13 -04, proposed revisions to 20 .2. 98
NMAC , Conformity of General Federal Action to the State Implementation Plan
.

Turn it over to our Hearing Officer

-- MR
. VOLKERDING : Okay
. MS
. PEACOCK : -- Mr
. Volkerding
. MR
. VOLKERDING : All right
. My name is John Volkerding , and I was designated by the Board to act as Hearing Officer in this matter
.

The hearing is being held to consider proposed
amendments to 20 .2.98 NMAC , Conformity of General Federal Actions to the State Implementation Plan
. The rulemaking petition was filed by the Environment Department and docketed by the administrator as EIB 13 -04(R).
The hearing will be conducted in accordance with the Board 's rulemaking procedures set out in 20 .1.1
NMAC
. All testimony will be taken under oath , and all person s giving testimony will be subject to

cross - examination by any other person in attendance on the subject matter of their testimony and on matters affecting their credibility
.

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## 6
This hearing is being recorded and transcribed by Cheryl Arreguin of Kathy Townsend Court Reporters . A
copy of the transcript may be obtained directly from the
court reporter
. It also eventually becomes a public
record viewable in the office of the Board administrator
.

The file contains the petition for hearing and the Department 's notice of intent to present technical testimony
. No other parties have filed motions
.

Mr
. Grantham , if you could make your
appearance and introduce your witnesses
.

MR
. GRANTHAM : Thank you , Mr
. Hearing Officer , Madam Chair , members of the Board
.

For the record , I'm Bill Grantham with the Office of General Counsel of the New Mexico Environment Department
.

With me is Gail Cooke , environmental planner with the Air Quality Bureau , and Rita Bates , the section chief of the Planning Section of the Air Quality Bureau
.

Should I proceed or -- MR
. VOLKERDING : Please
. MR
. GRANTHAM : Sorry
.

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GAIL COOKE and RITA BATES having been first duly sworn or affirmed , were examined and testified as follows :

DIRECT EXAMINATION OF GAIL COOKE
BY MR
. GRANTHAM :

MR
. GRANTHAM : As with the last hearing , Ms
. Cooke will be our direct witness , and Ms
. Bates is
here for any cleanup
. Q. Ms
. Cooke

-- A. Thanks
. Q. The leadoff hitter is important , too
. Please state your name for the record
. A. My name is Gail Cooke
. Q. And where do you work ?
A. I work for the New Mexico Environment Department in the Environmental Protection Division of the Air Quality Bureau
. Q. And how long have you been with the Bureau ?
A. Fourteen years . Q. And what is your educational background ?
A. I have a bachelor degree in environmental design from Texas A&M University and a master degree in
urban and region al planning from Virginia Tech
. Q. And is a copy of your resume included in the notice of intent ?

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A. Yes
. It is in Exhibit 1. Q. What are your duties for the Air Quality
Bureau ?
A. I develop and review state implementation plans and community initiative projects and develop regulatory language and conduct public out reach
. Q. And did you develop the regulatory repeal that is the subject of this hearing ?
A. Yes , I did
. Q. Did you provide written testimony for this hearing ?
A. Yes
. It is in Exhibit 8. Q. And do you adopt that testimony today under oath ?
A. Yes , I do
. Q. Can you please describe the concept of general conformity ?
A. Yes , I will
. The purpose of general conformity is to take emission s from federal ly supported projects in consideration in any areas that are in nonattainment for one of the six criteria pollutants
. General conformity applies to all federally supported projects except for transportation

- related projects , which are covered under the federal transportation conformity rule
. Federally

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supported projects and plans must conform to the nonattainment state implementation plans for an area so
as to not compound an existing problem
.

The federal general conformity regulation has been in place since 19 93 and is contained in 40 CFR Part 93, Subpart B.

New Mexico 's regulations , contained in Part 98 of 20 .2 NMAC , establish

-- establishes the criteria and
processes for review by federal agencies of federally supported plans and projects within nonattainment areas , to determine conformity to the state implementation plans
. Examples where Part 98 would apply include federally supported projects and plans associated with airports and military installations
. Q. Can you explain the proposed repeal of Part 98 ?
A. Yes , I will
.

The proposed repeal to Part 98 , which is shown in Exhibit 3, is in response to amendments to Part 93, Subpart B promulgated by EPA on March 24 th , 2010 , which is in Exhibit 5.

A portion of the amendments to Part 93 , Subpart B were in response to revisions made in August of 2005 to the

-- it 's very long

-- hold on -- to the

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Safe , Accountable , Flexible , Efficient Transportation Equity Act : A Legacy for Users , which I will refer to

as SAFETEA

- LU , which is in Exhibit 6. The revisions to
SAFETEA

- LU re move d the requirements for states to adopt and submit general conformity state implementation plans under the Clean Air Act
.

Before this revision to SAFETEA

- LU , states

were required to adopt regulatory state implementation plans that corresponded to the federal general conformity regulation Part 93 , Subpart B. In its March , 2010 revisions to Part 93 , EPA made the adoption and submittal of general conformity state implementation plans optional rather than mandatory for states
. Q. And why , then , does the Department wish to repeal Part 98 ?
A. New Mexico 's Part 98 , which corresponds to the federal general conformity rule , provides the requirements for federal agencies to follow in conducting their conformity evaluations for federal projects
. It does not impose any regulatory requirements on the state or on businesses in the state
.

The repeal of Part 98 does not reduce the
state 's role in general conformity determination because
the state plays no role in any such determination under
Pa rt 98 as it stands
. Instead , as I mentioned , it is

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the federal agencies them selves who would conduct conformity determinations under Part 98 if needed for such

-- if such a need arose .

The revisions to SAFETEA

- LU address the
unnecessary requirements for states to have a general conformity regulation while allowing a state to re tain such regulation if a state deems it is necessary .

The Department does not deem it necessary to have a general conformity regulation
. If Part 98 were retained , the

-- excuse me -- the Department would be required to continually up date the state 's general conformity regulation to incorporate any revisions to the

-- any revisions that were actually made to the federal general conformity rule
.

In addition , the use of Part 98 has never been triggered in the State of New Mexico
. Q. You testified that Part 98 is only applicable in nonattainment areas .

Are there any nonattainment areas in New Mexico ?
A. The state currently has one small nonattainment area , which is nonattainment for particulate matter , in the southern region of the state , in Anthony , New Mexico
. And this area does not include
any federally funded facility or land
.

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Q. And did the Department provide public notice
for this proposal ?
A. Yes , we did
. The EIB rulemaking regulations require that notice be published in a newspaper of general circulation and the New Mexico Register
. Notices were published in English and Spanish in the Albuquerque Journal and in the New Mexico Register on July 31 st , 2013
. Those notices are contained in Exhibit 7.
No comments were received
.

The Department also held an open house , but no members of the public attended
. Q. And so in conclusion , does the Department recommend a repeal of Part 98 ?
A. Yes
. The Department believes it would be the most beneficial to the state to opt out of the general conformity state implementation plan requirement as allowed by the revised federal general conformity rule by repealing 20 .2. 98 NMAC
.

MR
. GRANTHAM : Thank you . I have no more questions , and I move for admission of Exhibits 1 through 9, 9 being the proposed
statement of reasons .

MR
. VOLKERDING : The exhibits are accepted
. ( Exhibits NMED 1 through 9 admitted into

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evidence .)
MR
. VOLKERDING : Thank you . MR
. GRANTHAM : Thanks
. MR
. VOLKERDING : Any questions from the Board for the panel ?

MS
. PEACOCK : Sure
. MR
. VOLKERDING : Okay
. MS
. PEACOCK : Okay
. In Exhibit 8, page 3 --
and you spoke to this , that Anthony , New Mexico and the area does not include any federally funded facilities or lands
. And I find it hard to believe in New Mexico
there 's an area that doesn 't have any federally funded facilities or lands
.

How did you determine this ? How did you

-- MS
. COOKE : This nonattainment area is tiny
. It 's literally -- I think it 's a three

- mile radius
around the monitor
. So it 's -- there is barely anything
to the nonattainment area
. So that 's how we know that it doesn 't include any federal

-- it 's not the whole
town of Anthony
. It 's a tiny , tiny , little area around the monitor
.

MS
. PEACOCK : Okay
. And what is this nonattainment area in Anthony ?

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MS
. COOKE : The nonattainment area in Anthony

-- this area was actually designated as a nonattainment area in 19 91, and it was actually designated due to dust storms and high wind events
.

And this was before EPA actually put into place a contingency

-- or an actual method for areas that have these high wind events due to

-- during dust
storms and having actual exceedances from these high wind events , that they didn 't have anything in place at the time for states to be able to flag the data or show that this was due to situations outside of their
control
. And so because of that , even though it was due
to high wind events and dust storms , they still had to designate the area as nonattainment for particulate
matter
. And so that 's the reason it 's so tiny
. So that 's why that area was designated
.

Now they actually have in place procedures where you can flag data and do documentation to show that it was due to natural sources beyond your control
. But back in 199 1, they did not
.

MS
. PEACOCK : Okay
. In that first full paragraph , on that same
page , it says , " Therefore , there would be little differences in the enforceability of the regulations ."

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What are the little differences ?
MS
. COOKE : As far as on the

-- as far as between the state and the federal ?

MS
. PEACOCK : Uh

- huh
. MS
. COOKE : For the state and the federal , I think it was basically just how

-- it was more on how the state would respond to EPA as far as if

-- it wasn 't
EPA
. It was for the federal government
. Basically the federal government does the conformity determination , and then they actually are the ones that submit it to
another federal agency to have it reviewed
.

And

-- but the state has to up date their nonattainment plan for that area and have that submitted
to EPA within a timely manner
. And so that 's where the
states were allowed a little bit of leeway in to how they were going to develop their general conformity SIP ,

was how the states were going to respond to that with
EPA
. And so regardless if we have this rule or not , the states still have to do this , and we still have to respond , and then we still have to up date our -- our nonattainment plan to incorporate that determination
done by the federal government
. So that 's where the changes lie , is basically in the responsibilities that
the state has
.

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But the state has such limited actual responsibilities , and like I said , it basically only is
what the state does with their nonattainment SIP and how they incorporate this information and then re submitting it to EPA
. We have nothing to do with the determination itself , with whether or not there 's conformance with the plan
. It 's all the federal government
. They do all of that
. MS
. PEACOCK : So going back to Anthony , are
you working towards getting that classified as an attainment area because of natural causes ?

MS
. BATES : I can -- MS
. COOKE : Yeah
. Rita would probably be best
to answer that
.

MS
. BATES : We 'd like to move in that direction
. You need three years of clean data before
you can request that
. Unfortunately , the wind still
blows in Southern New Mexico , as I'm sure you know , and so it 's difficult to get that
.

We do flag that data
. We do use that monitor
to show that other

-- you know , that there are region al
events
. My plan

-- or at least what I'd like to see done is that we do work with EPA on getting Anthony out of nonattainment and include that instead as an area that we do exceptional events demonstrations for , which

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## 17

we do , as well
.

So it 's -- it was an un fortunate timing , and unfortunately getting three years of clean data is very difficult in a windy area .

MS
. PEACOCK : Okay
. Moving on to Exhibit 9, which is the Proposed Order and Statement of Reasons , paragraph 1 says " The purpose is ."

Is there a cite for this ?
MR
. GRANTHAM : For the conformity provisions
of the Clean Air Act ?

MS
. PEACOCK : Um

- hum
. MR
. GRANTHAM : Would that be 175?
MS
. COOKE : No
. It 's -- it 's in the Clean Air
Act
. It is

--

MS
. PEACOCK : Where it has the purpose listed that says this ?

MS
. COOKE : Is it 176(c)?
MS
. BATES : Number 2, it talks about it
. MS
. COOKE : Yeah , 176(c).
MS
. PEACOCK : Do you have that with you , so

we -- you know , this is something that the Board is being asked to sign , and we ' re saying " The purpose is ," and there -- I couldn 't check the cite on it
.

MS
. BATES : Madam Chair , I -- in the general conformity rules , in Exhibit 5, under

-- on the third

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page of that exhibit , which is page number 17255, under Background , it talks about the intent of the general conformity requirement
. But that 's under this rule
. And it does refer to Section 176 (c).

MS
. COOKE : (C) of the Clean Air Act
. It refers to that also under the conditional approval , which is Exhibit 4, of the state 's original general conformity rule , under Background , and it 's

" Section 176 (c) of the Act requires that all Federal actions conform to an applicable implementation plan ."

MS
. PEACOCK : I guess the language -- I couldn 't find the language " ensure that federal ly supported activities ( other than transportation projects ) will not cause or contribute to , or increase
the severity or frequency of , violations of the national ambient air quality standards ."

MS
. COOKE : Would you like

-- MS
. PEACOCK : Do you know where that language came from ?
MS
. COOKE : Well , I do know , like I said -- I

can read to you what 's under the Federal Register as far

as their interpretation of 176 (c) of EPA 's interpretation
.

" Section 176

-- 176 (c) of the Act requires
that all Federal actions conform to an applicable

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implementation plan
. Conformity is defined in section 176 (c) of the Act as conformity to the SIP 's
purpose of eliminating or reducing the severity and number of violations of the National

-- National Ambient Air Quality Standards and achieving expeditious attainment of such standards , and that such activities will not : Cause or contribute to any new violation of
any standard in any area , increase the frequency or severity of any existing violation of any standard in

an y area , or delay timely attainment of any standard or
any required interim emission reductions or other milestones in an y area ."

MS
. PEACOCK : Okay
. So all of this language is a little different than the proposed number 1, so --

MR
. GRANTHAM : So this is intended to be a paraphrase

--

MS
. PEACOCK : Um

- hum
. MR
. GRANTHAM : -- of the effective 176 (c). If the Board prefers an exact quote , that would

-- might address your concerns .

MS
. PEACOCK : Okay
. And what about the " other than transportation projects "? Because that wasn 't mentioned in any of these
.

MS
. COOKE : This is actually covered under

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Part 93 of the CFR , and that 's where it actually talks about

-- 40 CFR Part 93.

It has two different sections of

-- the first part of the section is

-- of Part 93 is for transportation

- related conformity determinations , and then Subpart B defines for general , and under Subpart B it states that all other federally funded

-- all other federally funded program -- plans and programs outside
of transportation projects are -- fall under that category of 40 CFR Subpart B.

So if you want to , we can actually cite that in the statement of reasons , as well
.

MS
. PEACOCK : Okay
. Well , I'm just -- I'm just asking for testimony that goes to

--

MS
. COOKE : Okay
. MS
. PEACOCK : -- that statement

-- MS
. COOKE : Yes
. MS
. PEACOCK : -- in my questioning
. Number 3 under the proposed statement of

reasons , when I look at Exhibit 8, it seems to me that date is 19 99, but you mentioned a date of 19 97.

MS
. COOKE : It was -- let me get to the original Exhibit 4, which

-- it 's actually 19 98, was when the

-- it was originally submitted in 19 97, and then it was actually sent back to NMED saying that

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they

-- EPA could not approve what was submitted , so it

was re submitted in 19 98.

And so that , I think , is a typo
. And in 19 98, it was -- it actually approved with

-- with a contingency , that there was one section , which actually I speak to in my testimony , that EPA felt

was more stringent than the federal rule , and so they asked for us to re move that , and we did , and we

re submitted it in 19 99.

MS
. PEACOCK : And that 's when

-- MS
. COOKE : So that would be a typo
. MS
. PEACOCK : -- it was approved
. MS
. COOKE : Yes
. MS
. PEACOCK : So it should read '99.
MS
. COOKE : Yeah
. MS
. PEACOCK : Okay
. In paragraph 5 of the statement of reasons , you reference Subpart W.

Here it is
. The SAFETEA

- LU amendments . I

see . MS
. COOKE : Yes
.

MS
. PEACOCK : Okay . I could not find that in Subpart W. Could you point me to where it says that ?

MS
. COOKE : 6, isn 't it ?

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Okay
. So in Exhibit 6, which is SAFETEA

- LU amendments

-- and I'm going to have to -- I'm going to have to find it myself , because it 's in such tiny writing
. Oh , is it part W? Oh , I'm sorry .

MS
. BATES : So Exhibit 5?
MS
. COOKE : Yeah . I'm sorry . MS
. PEACOCK : I don 't know that Subpart W was included as an exhibit , but I have it here
.

MR
. GRANTHAM : In Exhibit 5, which is the
CFR

-- MS
. PEACOCK : Um

- hum
.

MR
. GRANTHAM : -- on page 12

-- excuse me -- 17 272, this is where the actual regulatory part of the rule change is , as opposed to the preamble , and Subpart
W is at the bottom

--

MS
. PEACOCK : I see . MR
. GRANTHAM : -- of the page there
. MS
. PEACOCK : Um

- hum
. MS
. COOKE : Oh , there it is
. Okay
. MS
. PEACOCK : And my specific question , it
says to make it optional , and when I read Subpart W, I don 't see that
.

MS
. BATES : Under

-- on page 17272, at the top of the third column , under 51
. 851 , you see that instead

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of " shall submit ," under subparagraph (a), 51
. 851 subparagraph (a), "A State or eligible Tribe may " --

MS
. COOKE : " May ."
MS
. BATES : -- submit a revision to the plan
. So it 's no longer a requirement of shall submit , but it 's may submit
.

MS
. PEACOCK : Okay
. Thank you . MS
. COOKE : Tough questions
. MS
. PEACOCK : I traveled a long time , so I'm going to ask questions
.

Paragraph 6, a similar question
. It says the 40 CFR Part 93 contains requirements essentially identical to those specified for SIPs in Subpart W.

Could you walk us through that
. MR
. GRANTHAM : I'm sorry . What paragraph is that ?
MS
. COOKE : 6.
MS
. PEACOCK : 6.
MS
. BATES : How do you want us to walk through that ? Do you want us to go through the entire rule and
compare it to the federal rule ?

Because I don 't think we have the full text of the federal rule in front of us
.

MS
. COOKE : I can -- I can explain , like I said , where there are differences in the state rule and

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the federal rule , which , like I said , apply more to what the state requirements are as far as dealing with the submittal of those conformity determinations to the
state to incorporate them into their nonattainment SIP and then re submitting those SIPs to EPA for approval
.

MS
. PEACOCK : Well , I guess it 's the words

" essentially identical " that

-- that is in something
that we ' re going to be signing as a Board , so --

MS
. COOKE : I think it would be better which
would say that it corresponds to , because I don 't think any of the state 's general conformity or transportation conformity , which are the two conformity requirements
for nonattainment areas , are identical , because the
states have to have some leeway in developing what their responsibilities are and what they want to include in
those

-- in those SIP submittals
.

So that 's where they differ
. As far as what the federal governments are required to do as far as doing their conformity determinations , those are the same , but they are -- they ' re not going to be essentially the same .

So I would say a better phrase would be

" corresponds to ."

MS
. PEACOCK : " Corresponds to ."
MS
. COOKE : Yes
.

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MS
. PEACOCK : Okay
. And that , therefore ,

answers my question
.

MS
. COOKE : Okay
. Thank you
. MS
. PEACOCK : Because " essentially identical " -- I wasn 't following it
.

MS
. COOKE : Yeah
. MS
. PEACOCK : And then on paragraph 18 , the

same question regarding this section
. Our Board is required to consider 74 -2-5.E, the three elements , and if you 'd like to address those , that character and degree of injury to or interference with health , welfare , visibility and property
.

MS
. BATES : Okay
. Under subparagraph 1, this
does not change how federal facilities are regulated and what they have to do under general conformity
. Therefore , there is no difference between rescinding this rule or -- or keeping it in place
. So it

-- the

same protections will apply to health , welfare , visibility and property
.

The public interest , again , no difference in
how this rule would really be applied , therefore the public interest , including social and economic value of the sources and subjects of air contaminants , remains
the same . And the technical practicability , since there

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are no real control requirements in this , other than those that are already on our books , those rules would still apply
.

Our rules do apply to federal facilities
. If

a federal facility needs an air quality permit , they ' re still required to get one from the state
. They will still be required whether or not this rule is in place
. Therefore , there is no change to how we regulate those

sources . MS
. PEACOCK : Okay
.

And stepping back , I'm sorry , I have one more question on paragraph 8 of the proposed statement of

reasons . The second sentence says " Application of the General Conformity provisions has not been triggered by
any federal actions in that area ," but your testimony

was there were no federal actions in that area
.

MS
. COOKE : That sentence should also be revised that there are no federal actions within that area because there are no federal facilities or lands ,

or land
. MS
. PEACOCK : So a more appropriate statement , has not been triggered

--

MS
. COOKE : Due to the lack of federal facilities or land within the area .

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MS
. PEACOCK : Okay
. I don 't have any more questions
. MR
. VOLKERDING : Okay
. Any other Board questions ?
MR
. HOLT : One very brief -- I just want to make sure I understand something
.

Are you saying there 's only one nonattainment

area in the state or only one particulate nonattainment

area in the state ?

MS
. COOKE : There 's only one nonattainment

area in the state , and it 's nonattainment for particulate matter
.

MR
. HOLT : Okay
. Thank you . MS
. COOKE : You ' re welcome
. MR
. VOLKERDING : Seeing no members of the public for comment , I' ll ask Mr
. Grantham if he has any closing statements
.

MR
. GRANTHAM : I just noticed -- I just wanted
to point out that in response to one of your questions , that on page 17 2 56 , this is that Exhibit 4, it says ,

" Because 40 CFR part 51, s ubpart W essentially duplicates the regulations promulgated at 40 CFR part 93."
So " essentially duplicates " would be a better choice of words for that part of the

--

## 1

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MS
. PEACOCK : Okay
. And where

-- MR
. GRANTHAM : -- statement of reasons . MS
. COOKE : Where in the statement of reasons ?
MR
. GRANTHAM : There was a question about

-- MS
. BATES : Exhibit 5?
MS
. PEACOCK : Exhibit 5?
MR
. GRANTHAM : The question was about Exhibit 9.
MS
. BATES : But number 6.

MR
. GRANTHAM : Paragraph 6, yeah , " essentially identical ."

And the wording that EPA uses is " essentially duplicates " the regulations
.

MS
. PEACOCK : Where is that ?
MR
. GRANTHAM : That 's on page 17256 , the last full paragraph in the second column . " Because 40 CFR part 51, s ubpart W essentially duplicates the regulations ."

MS
. PEACOCK : Okay
. MR
. GRANTHAM : And I have no closing argument
. So again , thank you
. MR
. VOLKERDING : Thank you . Any reason to keep the record open ?
Not hearing any , the record 's closed , and I

## 1

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## 29

would turn it over to the Chair for deliberation
.

MS
. PEACOCK : Okay
. Is there a motion ?
MR
. MORROW : So move . Oh , you want me to move -- MS
. PEACOCK : So motion to repeal

-- MR
. MORROW : Repeal

-- you know how to word it
. MS
. PEACOCK : -- 98 of 20 .2 NMAC
.

MR
. MORROW : If I word it wrong , you ' re going
to correct me .

MS
. PEACOCK : Okay
. Is there a second ?
MR
. HOLT : Second
. MR
. FULFER : Second
. MS
. PEACOCK : Okay
. It 's been motioned and seconded
. Any discussion ?

Okay
. All in favor ? ( Simultaneous responses .)
MS
. PEACOCK : Any opposed ? Okay
. The repeal is unanimous
. So we ' ll now go through the Proposed Order and
Statement of Reasons
.

On number 1, we had some discussion on that , but I'm fine with the language as it exists
.

## 1

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Does anybody want to change it ?
MR
. HOLT : I was thinking about deleting the appositive clause where it states " increase the severity

or frequency of ." The first part 's clearly not in
there . I'm not finding the second part in there . I don 't think it takes away from the meaning of the
statement of reasons .

MS
. PEACOCK : So you ' re suggesting this " will
not cause or contribute to violations "?

MR
. HOLT : Correct
. MS
. PEACOCK : And I'm fine with that
. It 's really just a general purpose statement
. So

-- okay
.

In number 3, the testimony was that it was a typo , to change 19 97 to 19 99.

In paragraph 6, I would suggest the language towards the middle " which contains requirements that essentially duplicate those specified ."

In paragraph 8, I would suggest " Application
of the General Conformity provisions has not been triggered due to the lack of any federal facilities or lands in that area ."

Paragraph 9, " period " -- " adopting period " -- it should be " adopting periodic revisions ."

Paragraph 10 , adding a period at the end of that sentence
.

## 1

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Paragraph 18 , list the three statutory requirements for which testimony was given
.

And then under the order , change it to

" unanimous ."

Are there any other suggested changes ?
MR
. HOLT : I wasn 't listening fast enough this time , but I think the testimony was the same that the publication

-- well , I can 't even read my note
.

No , never mind
. MS
. PEACOCK : On

-- are you talking about number 14 ? The notice of

--

MR
. HOLT : The publication date , right
. MS
. PEACOCK : I think that we can ask for a clarification on that
.

MR
. HOLT : Okay
. MS
. PEACOCK : Do you know when the notice of hearing was published ?

MS
. COOKE : Yes
. All the notices were published on July 31 st , 2013
.

MS
. PEACOCK : Okay
. MR
. MORROW : Like they stated earlier
. MS
. PEACOCK : Okay
. Any other comments ? Okay . I' ll make the motion that we approve the proposed statement of reasons with the amendments as

## 1

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proposed by Member Holt and Member Peacock
.

MR
. VOLKERDING : Second
. MS
. PEACOCK : Okay
. Any other discussion ?
All in favor ? ( Simultaneous responses .)
MS
. PEACOCK : Any opposed ? Okay
. Thank you
. MS
. COOKE : Thank you . MS
. PEACOCK : And I' ll go ahead and make these changes on both of these and get those to you

--

MR
. GRANTHAM : Okay
. MS
. PEACOCK : -- the statement of reasons to
you . ( Proceedings adjourned at 11:05 a.m. )

## 1

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## 33

STATE OF NEW MEXICO ) ) ss . COUNTY OF BERNALILLO )

I, CHERYL ARREGUIN , the officer before whom the foregoing proceeding was taken , do hereby certify that
the witnesses whose testimony appears in the foregoing transcript were duly sworn or affirmed ; that I personally recorded the testimony by machine shorthand ; that said transcript is a true record of the testimony given by said witnesses ; that I am neither attorney nor counsel for , nor related to or employed by any of the parties to the action in which this proceeding is taken , and that I am not a relative or employee of any attorney

or counsel employed by the parties hereto or financially interested in the action
.

NOTARY PUBLIC CCR License Number : 21 Expires : 12 / 31 / 2013

My Commission Expires : 12 / 12 / 15

## '

**' 99**  [1] - 21 : 14 

## 1

**1** [8] - 4:4, 8:1, 12 : 22 , 12 : 25, 17 :7, 19: 14, 25: 13, 29 : 24 **10** [2] - 4: 14 , 30 : 24 **109 -** **59** [1] - 4: 14 **10 :** **32** [1] - 1: 15 **1190** [1] - 2:9 **11 :**  **05** [1] - 32 : 15 **12** [11 ] - 4:4, 4:5, 4:6, 4:9, 4: 12 , 4: 14, 4: 16 , 4: 18 , 4: 19 , 4: 21 , 22 : 13 **12 /** **12 /** **15** [1] - 33 :22 **12 /** **31 /** **2013** [1] - 33: 20 **13** [1] - 3:7 **13 -** **04** [1] - 5:2 **13 -** **04 (R**  [1] - 1:3 **13 -** **04 (R)**  [1] - 5: 17 **14** [1] - 31 : 11 **17 ,** **254** [1] - 4: 10 **17255** [1] - 18 :1 **17256** [2] - 27 :20 , 28: 16 **17272** [2] - 22 : 14 , 22 : 24 **175** [1] - 17: 12 **176** [2] - 4: 15 , 18: 24 **176 (c**  [5] - 17 : 17 , 18:9, 18: 22 , 18: 24, 19:2 **176 (c)**  [3] - 17 : 19 , 18:4, 19: 18 **18** [2] - 25 :7, 31 :1 **180** [1] - 1: 15 **1991** [2] - 14 :3, 14 : 21 **1993** [1] - 9:5 **1996** [1] - 4: 16 **1997** [3] - 20 : 21 , 20 : 24, 30 : 14 **1998** [4] - 4:8, 20 : 23 , 21 :2, 21 :4 **1999** [3] - 20 : 21 , 21 :9, 30 : 14 

## 2

**2** [2] - 4:5, 17: 18 **20 .1.1**  [1] - 5: 19 **20 .2**  [2] - 9:8, 29 :9 **20 .2.** **98** [5] - 1:4, 4:6, 5:2, 5: 13, 12 : 19 **2005** [2] - 4: 14, 9: 25 **2010** [3] - 4: 11 , 9: 21 , 10 : 11 **2013** [3] - 1: 13, 12 :8, 31 : 19 **21** [1] - 33 :20 **222 -** **9594** [1] - 2: 10 **24 th**  [1] - 9: 21 

## 3

**3** [5] - 4:6, 9: 20 , 13 :8, 20 : 19, 30 : 13 **3031** [1] - 1: 15 **31 st**  [2] - 12 :8, 31 : 19 

## 4

**4** [4] - 4:7, 18:7, 20 : 23, 27 : 20 **40** [7] - 9:5, 20 :2, 20 : 10, 23 : 12 , 27 : 21 , 27 : 22 , 28 : 17 **48 ,**  **106** [1] - 4:7 

## 5

**5** [9] - 4: 10, 9: 22 , 17 : 25, 21 : 17, 22 :6, 22 : 10, 28 :6, 28:7 **505** [1] - 2: 10 **51** [2] - 27 :21 , 28: 18 **51**

**. 851**  [2] - 22 : 25, 23 :1 

## 6

**6** [ 10] - 4: 13 , 10 :3, 21 : 25, 22 :1, 23 : 11 , 23 : 17, 23 : 18, 28 : 10 , 28: 11 , 30 : 15 **63** [1] - 4:7 **6a** [1] - 4: 15 

## 7

**7** [4] - 3:6, 4: 17 , 5:1, 12 :9 **74 -2-5.E**  [1] - 25 :9 **75** [1] - 4: 10 

## 8

**8** [6] - 4: 19, 8: 12 , 13 :8, 20 : 20 , 26 : 12 , 30 : 18 **87505** [1] - 2: 10 **8 th**  [1] - 1: 13 

## 9

**9** [8] - 4:8, 4: 20 , 12 : 22 , 12 : 25, 17 :5, 28:9, 30 : 22 **93** [10] - 9:6, 9: 20 , 9:23 , 10 : 10 , 10 : 11 , 20 :1, 20 :2, 20 :4, 23 : 12 , 27 : 23 **98** [14] - 9:7, 9: 13 , 9: 17 , 9: 19 , 10 : 15 , 10 : 16, 10 : 22 , 10 : 25 , 11 :2, 11 :9, 11 : 15 , 11 : 17, 12 : 14, 29 :9 

## A

**A&M** [1] - 7: 22 **a.m** [2] - 1: 15 , 32 : 15 **able** [1] - 14 : 10 **above -** **entitled** [1] - 1: 13 **accepted** [1] - 12 : 24 **accordance** [1] - 5: 18 **Accountable** [1] - 10 :1 **achieving** [1] - 19 :5 **act** [1] - 5: 10 **Act** [8] - 10 :2, 10 :6, 17 : 10, 17 : 14, 18 :5, 18:9, 18: 24 , 19:2 **action** [2] - 33 : 14 , 33 : 17 **Act ion**  [1] - 5:3 **ACTIONS** [1] - 1:5 **actions** [5] - 18 : 10 , 18: 25, 26 : 16, 26 : 17 , 26 : 19 **Act ions**  [1] - 5: 14 **activities** [2] - 18 : 13, 19:6 **actual** [4] - 14 :6, 14 :8, 16 :1, 22 : 14 **adding** [1] - 30 : 24 **addition** [1] - 11 : 15 **address** [3] - 11 :4, 19: 20, 25 : 10 **adjourned** [1] - 32 : 15 **administrator** [2] - 5: 16 , 6:6 **admission** [1] - 12 : 22 **ADMITTED** [1] - 4:2 **admitted** [1] - 12 : 25 **adopt** [3] - 8: 13 , 10 :4, 10 :8 **adopting** [2] - 30 : 22 , 30 : 23 **adoption** [1] - 10 : 11 **affecting** [1] - 5: 25 **Affidavits** [1] - 4: 17 **affirmed** [2] - 7:2, 33 :9 **agencies** [3] - 9:9, 10 : 18, 11 :1 **agency** [1] - 15: 11 **ahead** [1] - 32 : 10 **Ai r**  [9] - 6: 18 , 6: 19, 7: 17 , 8:2, 10 :6, 17 : 10, 17 : 13, 18 :5, 19:5 **air** [3] - 18 : 16 , 25 : 23 , 26 :5 **airports** [1] - 9: 15 **Al buquerque**  [1] - 12 :7 **allowed** [2] - 12 : 18, 15: 15 **allowing** [1] - 11 :6 **ambient** [1] - 18 : 16 **Ambient** [1] - 19:4 **AME NDMENTS**  [1] - 1:4 **amendments** [6] - 5: 13 , 9: 20 , 9: 23 , 21 : 19, 22 :2, 31 : 25 **answer** [1] - 16 : 14 **answers** [1] - 25 :2 **An thony**  [7] - 11 : 24, 13 :9, 13 : 21 , 13 : 25, 14 :2, 16 :9, 16 :23 **appearance** [1] - 6: 11 **applicable** [3] - 11 : 17, 18 : 10, 18 : 25 **Ap plication**  [2] - 26 : 14, 30 : 18 **applied** [1] - 25 :21 **applies** [1] - 8:23 **apply** [5] - 9: 13 , 24 :1, 25: 18 , 26 :3, 26 :4 **appositive** [1] - 30 :3 **appropriate** [1] - 26 : 22 **Ap proval**  [1] - 4:8 **approval** [2] - 18 :7, 24 :5 **approve** [2] - 21 :1, 31 : 24 **approved** [2] - 21 :4, 21 : 12 **Ap ril**  [1] - 4: 10 

## KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street , Northwest , Albuquerque , New Mexico 87102

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## 1

**area** [29] - 9:2, 11 :22 , 11 : 24, 13 : 10, 13 : 13 , 13 : 16, 13 : 19, 13 : 21 , 13 : 24, 14 :1, 14 :2, 14 :3, 14 : 15 , 14 : 17, 15: 13, 16 : 11 , 16 : 24 , 17 :4, 19:8, 19 : 10 , 19: 12 , 26 : 16, 26 : 17 , 26 : 20, 26 : 25, 27 :8, 27 :9, 27 : 11 , 30 : 21 **areas** [6] - 8:21 , 9: 10 , 11 : 18 , 11 : 19, 14 :6, 24 : 13 **argument** [1] - 28: 21 **arose** [1] - 11 :3 **Arreguin** [1] - 6:2 **ARREGUIN** [1] - 33 :6 **Assistant** [1] - 2:7 **associated** [1] - 9: 14 **attainment** [3] - 16 : 11 , 19 :6, 19: 10 **attendance** [1] - 5:23 **attended** [1] - 12 : 12 **attorney** [2] - 33 : 12 , 33 : 15 **Au gust**  [2] - 4: 14 , 9:24 

## B

**bachelor** [1] - 7: 21 **Background** [2] - 18:2, 18:8 **background** [1] - 7:20 **barely** [1] - 13 : 18 **BATES** [ 13] - 3:4, 7:1, 16 : 12 , 16 : 15 , 17 : 18, 17 : 24, 22 :6, 22 : 24, 23 :4, 23 : 19, 25: 13, 28 :6, 28: 10 **Bates** [3] - 4:5, 6: 18, 7:7 **BE** [1] - 1: 13 **becomes** [1] - 6:4 **believes** [1] - 12 : 15 **beneficial** [1] - 12 : 16 **BERNALILLO** [1] - 33 :3 **best** [1] - 16 : 13 **better** [3] - 24 :9, 24 : 22 , 27 : 24 **between** [2] - 15:3, 25: 16 **beyond** [1] - 14 :20 **Bill** [1] - 6: 14 **BILL** [1] - 2:7 **bill**

**. grantham** **@ state** 

**. nm** **. us**  [1] - 2: 11**bit** [1] - 15 : 15 **blows** [1] - 16 : 18 **BOARD** [1] - 1:1 **Board** [ 12] - 1: 14 , 2:2, 3:7, 5: 10 , 6:5, 6: 13 , 13:4, 17 :21 , 19: 19, 24 :8, 25:8, 27:4 **Board 's**  [1] - 5: 19 **books** [1] - 26 :2 **bottom** [1] - 22 : 16 **brief** [1] - 27 :5 **Bureau** [5] - 6: 18 , 6: 19 , 7: 17 , 7: 18 , 8:3 **Business** [1] - 1: 15 **businesses** [1] - 10 : 21 **BY** [1] - 7:5 

## C

**CAA** [1] - 4: 15 **category** [1] - 20 : 10 **causes** [1] - 16 : 11 **CCR** [1] - 33 : 20 **Center** [1] - 1: 15 **certify** [1] - 33 :7 **CFR** [9] - 9:5, 20 :1, 20 :2, 20 : 10 , 22 : 11 , 23: 12 , 27 : 21 , 27 : 22 , 28: 17 **Chair** [3] - 6: 13, 17: 24, 29 :1 **change** [6] - 22 : 15 , 25: 14, 26 :8, 30 :1, 30 : 14, 31 :3 **changes** [3] - 15: 24, 31 :5, 32 : 11 **character** [1] - 25: 10 **check** [1] - 17 :23 **CHERYL** [1] - 33 :6 **Cheryl** [1] - 6:2 **chief** [1] - 6: 19 **choice** [1] - 27 :25 **circulation** [1] - 12 :5 **cite** [3] - 17:8, 17 :23 , 20 : 11 **City** [1] - 1: 15 **clarification** [1] - 31 : 14 **classified** [1] - 16 : 10 **clause** [1] - 30 :3 **Clean** [4] - 10 :6, 17: 10, 17 : 13, 18 :5 **clean** [2] - 16 : 16 , 17:3 **cleanup** [1] - 7:8 **clearly** [1] - 30 :4 **closed** [1] - 28 :25 **closing** [2] - 27 : 17 , 28: 21 **Code** [1] - 4: 16 **column** [2] - 22 : 25 , 28: 17 **comment** [1] - 27 : 16 **comments** [2] - 12 : 10, 31 : 23 **Commission** [1] - 33 : 22 **community** [1] - 8:5 **compare** [1] - 23 : 21 **compound** [1] - 9:3 **concept** [1] - 8: 16 **concerns** [1] - 19 : 20 **conclusion** [1] - 12 : 13 **conditional** [1] - 18 :6 **conduct** [2] - 8:6, 11 :1 **conducted** [1] - 5: 18 **conducting** [1] - 10 : 19 **Conference** [1] - 1: 15 **conform** [3] - 9:1, 18: 10, 18 : 25 **conformance** [1] - 16 :6 **Conformity** [6] - 4:9, 4: 12 , 5:3, 5: 13, 26 : 15, 30 : 19 **CO NFORMITY**  [1] - 1:4 **conformity** [34] - 8: 17 , 8: 19 , 8: 22 , 8: 25, 9:4, 9: 11 , 10 :5, 10 : 10, 10 : 12 , 10 : 17, 10 : 19 , 10 : 23, 11 :2, 11 :6, 11 :9, 11 : 12 , 11 : 14, 12 : 17, 12 : 18, 15 :9, 15: 16, 17 :9, 17 : 25, 18:3, 18:8, 19 :1, 19 :2, 20 :5, 24 :3, 24 : 11 , 24 : 12 , 24 : 19, 25 : 15 **consider** [2] - 5: 12 , 25:9 **consideration** [1] - 8:21 **contained** [3] - 9:5, 9:7, 12 :8 **contains** [3] - 6:7, 23 : 12 , 30 : 16 **contaminants** [1] - 25: 23 **contingency** [2] - 14 :6, 21 :5 **continually** [1] - 11 : 11 **contribute** [3] - 18: 14, 19 :7, 30 :9 **control** [3] - 14 : 12 , 14 : 20, 26 :1 **CO OKE**  [40] - 3:4, 7:1, 7:4, 13 : 16, 14 :1, 15:2, 15:5, 16 : 13 , 17 : 13, 17 : 17, 17 : 19 , 18:5, 18: 17 , 18: 20, 19: 25, 20 : 15, 20 : 17 , 20 : 22 , 21 : 11 , 21 : 13 , 21 : 15, 21 : 21 , 21 : 25 , 22 :7, 22 : 20 , 23 :3, 23 :8, 23 : 17 , 23 : 24, 24 :9, 24 : 25 , 25:3, 25:6, 26 : 18 , 26 : 24, 27 : 10, 27 : 14, 28 :4, 31 : 18, 32 :9 **Cooke** [7] - 3:5, 4:4, 4: 19 , 6: 17 , 7:7, 7:9, 7: 13 **copy** [2] - 6:3, 7: 24 **correct** [2] - 29 : 11 , 30 : 10 **corresponded** [1] - 10 :9 **corresponds** [4] - 10 : 16, 24 : 10, 24 : 23 , 24 : 24 **counsel** [2] - 33 : 13 , 33 : 16 **Counsel** [3] - 2:7, 2:8, 6: 15 **County** [1] - 1: 14 **CO UNTY**  [1] - 33 :3 **Court** [1] - 6:2 **court** [1] - 6:4 **covered** [2] - 8: 24 , 19: 25 **credibility** [1] - 5: 25 **criteria** [2] - 8: 22 , 9:8 **cross** [1] - 5: 23 **cross -** **examination** [1] - 5: 23 

## D

**data** [5] - 14 : 10 , 14 : 19, 16 : 16, 16 : 20 , 17 :3 **date** [3] - 20 : 21 , 31 : 12 **dealing** [1] - 24 :2 **DEBORAH** [1] - 2:3 **deem** [1] - 11 :8 **deems** [1] - 11 :7 **defined** [1] - 19 :1 **defines** [1] - 20 :6 **degree** [3] - 7:21 , 7:22 , 25: 11 **delay** [1] - 19 : 10 **deleting** [1] - 30 :2 **deliberation** [1] - 29:1 **demonstrations** [1] - 16 : 25 **Department** [ 12] - 2:6, 2:8, 5: 16 , 6: 16 , 7: 16 , 10 : 14 , 11 :8, 11 : 10, 12 :1, 12 : 11 , 12 : 13, 12 : 15 **Department 's**  [1] - 6:8 **describe** [1] - 8: 16 **design** [1] - 7: 22 **designate** [1] - 14 : 15 **designated** [4] - 5: 10 , 14 :2, 14 :4, 14 : 17 **determination** [5] - 10 : 23, 10 : 24, 15 :9, 15: 22 , 16 :5 **determinations** [4] - 11 :2, 20 :5, 24 :3, 24 : 20 **determine** [2] - 9: 11 , 13 : 15 **develop** [4] - 8:4, 8:5, 8:7, 15: 16 **developing** [1] - 24 : 14 **differ** [1] - 24 : 17 **difference** [2] - 25: 16, 25 : 20 **differences** [3] - 14 : 25, 15 :1, 23 : 25 **different** [2] - 19 : 14 , 20 :3 **difficult** [2] - 16 : 19 , 17 :4 **Direct** [1] - 3:5 **DIRECT** [1] - 7:4 **direct** [1] - 7:7 **direction** [1] - 16 : 16 **directly** [1] - 6:3 **discussion** [3] - 29: 17, 29 : 24, 32 :4 **Division** [1] - 7: 16 **docketed** [1] - 5: 16 **documentation** [1] - 14 : 19 **done** [2] - 15: 23, 16 : 23 **Drive** [1] - 2:9 **due** [7] - 14 :4, 14 :7, 14 : 11 , 14 : 13, 14 : 20 , 26 : 24, 30 : 20 **duly** [2] - 7:2, 33 :9 **duplicate** [1] - 30 : 17 **duplicates** [4] - 

## KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street , Northwest , Albuquerque , New Mexico 87102

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## 2

27 : 22 , 27 : 24, 28 : 14 , 28: 18 **during** [1] - 14 :7 **dust** [3] - 14 :4, 14 :7, 14 : 14 **duties** [1] - 8:2 

## E

**East** [1] - 1: 15 **economic** [1] - 25: 22 **educational** [1] - 7:20 **effective** [1] - 19 : 18 **Efficient** [1] - 10 :1 **EIB** [4] - 1:3, 5:2, 5: 16 , 12 :3 **elements** [1] - 25:9 **eligible** [1] - 23 :2 **eliminating** [1] - 19 :3 **emission** [1] - 19 : 11 **emissions** [1] - 8: 20 **employed** [2] - 33 : 13, 33 : 16 **employee** [1] - 33 : 15 **end** [1] - 30 :24 **enforceability** [1] - 14 : 25 **English** [1] - 12 :6 **ensure** [1] - 18: 12 **entire** [1] - 23 :20 **entitled** [1] - 1: 13 **Environment** [5] - 2:6, 2:8, 5: 15 , 6: 15 , 7: 15 **environmental** [2] - 6: 17 , 7: 21 **ENVIRONMENTAL** [1] - 1:1 **Environmental** [3] - 1: 14 , 2:2, 7: 16 **EPA** [ 13] - 9:21 , 10 : 11 , 14 :5, 15:7, 15:8, 15: 14 , 15: 18, 16 :5, 16 : 23 , 21 :1, 21 :6, 24 :5, 28 : 13 **EPA 's**  [1] - 18: 22 **Equity** [1] - 10 :2 **essentially** [ 10] - 23 : 12 , 24 :7, 24 : 21 , 25:4, 27 : 21 , 27 : 24, 28: 11 , 28 : 13, 28 : 18 , 30 : 17 **establish** [1] - 9:8 **establishes** [1] - 9:8 **evaluations** [1] - 10 : 19 **events** [6] - 14 :4, 14 :7, 14 :9, 14 : 14 ,16 : 22 , 16 : 25 **eventually** [1] - 6:4 **evidence** [1] - 13 :1 **exact** [1] - 19 : 19 **Examination** [1] - 3:5 **EXAMINATION** [1] - 7:4 **examination** [2] - 3:7, 5: 23 **examined** [1] - 7:3 **examples** [1] - 9: 13 **exceedances** [1] - 14 :8 **except** [1] - 8: 23 **exceptional** [1] - 16 : 25 **Excerpt** [2] - 4: 13 , 4: 15 **excuse** [2] - 11 : 10, 22 : 13 **exhibit** [2] - 18 :1, 22 :9 **Exhibit** [ 19] - 8:1, 8: 12 , 9: 20 , 9: 22 , 10 :3, 12 :9, 13:8, 17 :5, 17: 25, 18 :7, 20 : 20, 20 : 23, 22 :1, 22 :6, 22 : 10, 27 : 20, 28 :6, 28:7, 28:9 **Exhibits** [2] - 12 : 22 , 12 : 25 **exhibits** [1] - 12 : 24 **existing** [2] - 9:3, 19:9 **exists** [1] - 29 :25 **expeditious** [1] - 19:5 **Expires** [2] - 33 : 20, 33: 22 **explain** [2] - 9: 16 , 23: 24 

## F

**facilities** [7] - 13 : 10 , 13: 14, 25 : 14, 26 :4, 26 : 20, 26 : 25, 30 : 20 **facility** [2] - 11 : 25, 26 :5 **fall** [1] - 20 :9 **far** [7] - 15:2, 15 :7, 18: 21 , 24 :2, 24 : 18, 24 : 19 **fast** [1] - 31 :6 **favor** [2] - 29 : 18 , 32 :5 **Fe** [1] - 2: 10 **FEDERAL** [1] - 1:5 **federal** [32] - 8: 25, 9:4, 9:9, 10 :9, 10 : 17 , 10 : 18, 10 : 19, 11 :1, 11 : 14, 12 : 18, 13 : 20 , 15:3, 15:5, 15 :8, 15 :9, 15: 11 , 15 : 23, 16 :7, 21 :7, 23 : 21 , 23 : 23, 24 :1, 24 : 18 , 25: 14, 26 :4, 26 :5, 26 : 16 , 26 : 17, 26 : 19, 26 : 20 , 26 : 24, 30 : 20 **Federal** [8] - 4:7, 4: 10 , 4: 11 , 5:3, 5: 14 , 18:9, 18: 21 , 18: 25 **federally** [11 ] - 8: 20, 8:23 , 8: 25 , 9:9, 9: 14 , 11 : 25, 13 : 10, 13 : 13 , 18: 12 , 20 :7, 20 :8 **felt** [1] - 21 :6 **file** [1] - 6:7 **filed** [2] - 5: 15 , 6:9 **financially** [1] - 33 : 16 **fine** [2] - 29 :25 , 30 : 11 **first** [4] - 7:2, 14 : 23 , 20 :3, 30 :4 **flag** [3] - 14 : 10 , 14 : 19, 16 : 20 **Flexible** [1] - 10 :1 **follow** [1] - 10 : 18 **following** [1] - 25:5 **follows** [1] - 7:3 **foregoing** [2] - 33:7, 33 :8 **fourteen** [1] - 7: 19 **Francis** [1] - 2:9 **frequency** [3] - 18: 15, 19 :8, 30 :4 **front** [1] - 23 : 23 **FULFER** [2] - 2:3, 29: 14 **full** [3] - 14 :23 , 23 : 22 , 28 : 17 **funded** [5] - 11 : 25, 13 : 10, 13 : 13, 20 :7, 20 :8 

## G

**GA IL**  [3] - 3:4, 7:1, 7:4 **Gail** [5] - 3:5, 4:4, 4: 19 , 6: 17 , 7: 13 **general** [24] - 8: 16 , 8: 19 , 8: 22 , 9:4, 10 :5, 10 :9, 10 : 12 , 10 : 17, 10 : 23, 11 :5, 11 :9, 11 : 11 , 11 : 14, 12 :5, 12 : 16, 12 : 18, 15 : 16 , 17 : 24, 18 :2, 18:8, 20 :6, 24 : 11 , 25: 15, 30 : 12 **GENERAL** [1] - 1:4 **General** [9] - 2:7, 2:8, 4:9, 4: 11 , 5:3, 5: 13 , 6: 15 , 26 : 15 , 30 : 19 **given** [2] - 31 :2, 33 : 12 **government** [4] - 15:8, 15:9, 15 :23 , 16 :7 **governments** [1] - 24 : 18 **Grant** [1] - 1: 14 **GRA NTHAM**  [23] - 2:7, 6: 12 , 6: 22 , 7:5, 7:6, 12 : 20 , 13 :3, 17 :9, 17 : 12 , 19 : 15, 19 : 18 , 22 : 10, 22 : 13, 22 : 18 , 23 : 15, 27 : 18, 28 :3, 28:5, 28:8, 28 : 11 , 28: 16, 28 : 21 , 32 : 12 **Grantham** [4] - 3:6, 6: 10 , 6: 14 , 27 : 16 **GREGORY** [1] - 2:3 **guess** [2] - 18 : 11 , 24 :6 

## H

**hard** [1] - 13 : 12 **health** [2] - 25 : 11 , 25: 18 **hearing** [ 12] - 1: 14 , 4: 17 , 5:2, 5: 12 , 5: 18 , 6:1, 6:7, 7:6, 8:8, 8: 11 , 28: 25 , 31 : 17 **Hearing** [4] - 2:4, 5:5, 5: 10, 6: 12 **held** [2] - 5: 12 , 12 : 11 **hereby** [1] - 33 :7 **hereto** [1] - 33 : 16 **high** [4] - 14 :4, 14 :7, 14 :8, 14 : 14 **Highway** [1] - 1: 15 **hitter** [1] - 7: 11 **hold** [1] - 9: 25 **HO LT**  [9] - 2:5, 27 :5, 27 : 13, 29 : 13, 30 :2, 30 : 10, 31 :6, 31 : 12 , 31 : 15 **Holt** [1] - 32 :1 **hour** [1] - 1: 15 **house** [1] - 12 : 11 **hum** [4] - 17 : 11 , 19: 17, 22 : 12 , 22 : 19 

## I

**identical** [5] - 23 : 13, 24 :7, 24 : 13 , 25:5, 28: 12 **IMPLEMENTATION** [1] - 1:5 **implementation** [9] - 8:4, 9:2, 9: 11 , 10 :5, 10 :8, 10 : 12 , 12 : 17, 18: 10, 19 :1 **Implementation** [2] - 5:4, 5: 14 **important** [1] - 7: 11 **impose** [1] - 10 :20 **IMPROVEMENT** [1] - 1:1 **Improvement** [2] - 1: 14 , 2:2 **IN** [1] - 1:4 **include** [6] - 9: 13 , 11 : 24, 13 : 10, 13 : 20 , 16 : 24, 24 : 15 **included** [2] - 7:24 , 22 :9 **including** [1] - 25: 22 **incorporate** [4] - 11 : 12 , 15 : 22 , 16 :4, 24 :4 **increase** [3] - 18 : 14 , 19:8, 30 :3 **information** [1] - 16 :4 **initiative** [1] - 8:5 **injury** [1] - 25: 11 **installations** [1] - 9: 15 **instead** [3] - 10 :25 , 16 : 24, 22 : 25 **intended** [1] - 19 : 15 **intent** [3] - 6:8, 7: 25, 18:2 **interest** [2] - 25: 20, 25: 22 **interested** [1] - 33 : 17 **interference** [1] - 25: 11 **interim** [1] - 19: 11 **interpretation** [2] - 18: 22 , 18 : 23 **introduce** [1] - 6: 11 **IT** [1] - 1: 13 **item** [1] - 5:1 **itself** [1] - 16 :6 

## J

**JOHN** [1] - 2:4


## KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street , Northwest , Albuquerque , New Mexico 87102

( 505 ) 243

- 5018

- Fax ( 505 ) 243

- 3606 

## 3

**John** [1] - 5:9 **Journal** [1] - 12 :7 **July** [2] - 12 :8, 31 : 19 

## K
**Kathy** [1] - 6:2 **keep** [1] - 28 : 24 **keeping** [1] - 25: 17 

## L

**lack** [2] - 26 : 24 , 30 : 20 **land** [3] - 11 : 25, 26 : 21 , 26 : 25 **lands** [4] - 13 : 11 , 13 : 14, 26 : 20, 30 : 21 **language** [7] - 8:6, 18: 11 , 18 : 12 , 18 : 18 , 19: 13, 29 : 25, 30 : 15 **last** [2] - 7:6, 28 : 16 **Law** [1] - 4: 13 **leadoff** [1] - 7: 11 **least** [1] - 16 : 22 **leeway** [2] - 15 : 15 , 24 : 14 **Legacy** [1] - 10 :2 **License** [1] - 33 : 20 **lie** [1] - 15: 24 **limited** [1] - 16 :1 **list** [1] - 31 :1 **listed** [1] - 17 : 15 **listening** [1] - 31 :6 **literally** [1] - 13 : 17 **look** [1] - 20 : 20 **LU** [8] - 4: 13, 4: 16 , 10 :3, 10 :4, 10 :7, 11 :4, 21 : 19, 22 :1 

## M

**machine** [1] - 33 : 10 **Madam** [2] - 6: 13 , 17 : 24 **mandatory** [1] - 10 : 13 **manner** [1] - 15: 14 **March** [2] - 9:21 , 10 : 10 **master** [1] - 7: 22 **MATTER** [1] - 1:4 **matter** [6] - 1: 13, 5: 11 , 5: 24 , 11 :23 , 14 : 16, 27 : 12 **matters** [1] - 5: 24 **MATTHEW** [1] - 2:5 **meaning** [1] - 30 :6**Member** [2] - 32 :1 **members** [3] - 6: 13, 12 : 12 , 27 : 15 **Memorial** [1] - 1: 14 **mentioned** [3] - 10 : 25, 19 : 24, 20 : 21 **method** [1] - 14 :6 **MEXICO** [2] - 1:1, 33:1 **Mexico** [ 16] - 1: 14, 1: 15 , 2:6, 2:8, 2: 10 , 4:8, 6: 15, 7: 15, 11 : 16, 11 : 20, 11 : 24, 12 :5, 12 :7, 13:9, 13 : 12 , 16 : 18 **Mexico 's**  [2] - 9:7, 10 : 16 **MI CHAEL**  [1] - 2:4 **middle** [1] - 30 : 16 **might** [1] - 19: 19 **mile** [1] - 13 : 17 **milestones** [1] - 19: 12 **military** [1] - 9: 15 **mind** [1] - 31 :9 **monitor** [3] - 13 : 18 , 13: 22 , 16 : 20 **MORROW** [5] - 2:4, 29:4, 29:7, 29 : 10 , 31 : 21 **most** [1] - 12 : 16 **motion** [3] - 29:3, 29:6, 31 : 24 **motioned** [1] - 29 : 15 **motions** [1] - 6:9 **move** [5] - 5:1, 12 : 21 , 16 : 15, 29 :4, 29:5 **moving** [1] - 17 :5 **MR** [46] - 5:6, 5:8, 6: 12 , 6: 21 , 6: 22 , 7:5, 7:6, 12 : 20 , 12 :24 , 13:2, 13:3, 13 :4, 13 :7, 17:9, 17: 12 , 19: 15, 19: 18, 22 : 10, 22 : 13 , 22 : 18, 23 : 15, 27 :3, 27:5, 27: 13 , 27 : 15, 27: 18, 28 :3, 28:5, 28:8, 28: 11 , 28: 16, 28: 21 , 28 : 23, 29 :4, 29:7, 29: 10 , 29: 13, 29: 14, 30 :2, 30 : 10, 31 :6, 31 : 12 , 31 : 15, 31 : 21 , 32 :2, 32 : 12 **MS** [ 110] - 5:1, 5:7, 13:6, 13:8, 13 : 16 , 13: 23, 14 :1, 14 : 22 , 15:2, 15:4, 15 :5, 16 :9, 16 : 12 , 16 : 13, 16 : 15 , 17:5, 17: 11 , 17 : 13, 17 : 15, 17 : 17, 17 : 18 , 17 : 19, 17 : 20, 17 : 24 , 18:5, 18: 11 , 18: 17, 18: 18, 18 : 20, 19 : 13 , 19: 17, 19 : 21 , 19 : 25 , 20 : 13, 20 : 15, 20 : 16 , 20 : 17, 20 : 18, 20 : 22 , 21 : 10, 21 : 11 , 21 : 12 , 21 : 13, 21 : 14, 21 : 15 , 21 : 16, 21 : 21 , 21 : 22 , 21 : 25, 22 :6, 22 :7, 22 :8, 22 : 12 , 22 : 17, 22 : 19, 22 : 20, 22 : 21 , 22 : 24, 23 :3, 23 :4, 23 :7, 23 :8, 23 :9, 23 : 17, 23 : 18, 23 : 19 , 23 : 24, 24 :6, 24 :9, 24 : 24, 24 : 25, 25 :1, 25:3, 25:4, 25 :6, 25 :7, 25: 13, 26 : 10, 26 : 18 , 26 : 22 , 26 : 24, 27 :1, 27 : 10, 27 : 14, 28 :1, 28:4, 28:6, 28 :7, 28: 10, 28 : 15, 28 : 20 , 29:2, 29:6, 29 :9, 29: 12 , 29 : 15, 29 : 20 , 30 :8, 30 : 11 , 31 : 10, 31 : 13, 31 : 16, 31 : 18 , 31 : 20, 31 : 22 , 32 :3, 32 :7, 32 :9, 32 : 10 , 32 : 13 **must** [1] - 9:1 

## N

**N- 4050**  [1] - 2:9 **name** [3] - 5:9, 7: 12 , 7: 13 **national** [1] - 18 : 15 **National** [2] - 19 :4 **natural** [2] - 14 : 20 , 16 : 11 **necessary** [2] - 11 :7, 11 :8 **need** [2] - 11 :3, 16 : 16 **needed** [1] - 11 :2 **needs** [1] - 26 :5 **never** [2] - 11 : 15 , 31 :9 **NEW** [2] - 1:1, 33 :1 **new** [1] - 19:7 **New** [ 18] - 1: 14, 1: 15, 2:6, 2:8, 2: 10 , 4:8, 6: 15 , 7: 15 , 9:7, 10 : 16, 11 : 16, 11 : 19, 11 : 24 , 12 :5, 12 :7, 13 :9, 13 : 12 , 16 : 18 **newspaper** [1] - 12 :4 **NMAC** [8] - 1:4, 4:6, 5:3, 5: 13, 5: 20, 9:8, 12 : 19, 29 :9 **NMED** [3] - 4:3, 12 : 25, 20 : 25 **NMED 's**  [1] - 4:20 **nonattainment** [23] - 8:21 , 9:2, 9: 10, 11 : 18, 11 : 19, 11 : 22 , 13 : 16 , 13 : 19, 13 : 24, 14 :1, 14 :3, 14 : 15 , 15: 13, 15: 22 , 16 :3, 16 : 24, 24 :4, 24 : 13 , 27 :7, 27 :8, 27 : 10 , 27 : 11 **NO TARY**  [1] - 33 : 19 **note** [1] - 31 :8 **nothing** [1] - 16 :5 **notice** [7] - 4: 18, 6:8, 7:25 , 12 :1, 12 :4, 31 : 11 , 31 : 16 **noticed** [1] - 27 : 18 **notices** [3] - 12 :6, 12 :8, 31 : 18 **Number** [1] - 33 :20 **number** [10] - 5:1, 17 : 18, 18 :1, 19:4, 19: 14, 20 : 19, 28 : 10 , 29: 24, 30 : 13, 31 : 11 

## O

**oath** [2] - 5: 21 , 8: 14 **obtained** [1] - 6:3 **October** [1] - 1: 13 **OF** [7] - 1:1, 1:4, 1:4, 1: 12 , 7:4, 33 :1, 33 :3 **office** [1] - 6:5 **Office** [2] - 2:8, 6: 15 **officer** [1] - 33 :6 **Officer** [4] - 2:4, 5:5, 5: 10 , 6: 12 **one** [10] - 8: 22 , 11 : 21 , 21 :5, 26 :6, 26 : 11 , 27 :5, 27 :7, 27 :8, 27 : 10 , 27 : 19 **ones** [1] - 15: 10 **open** [2] - 12 : 11 , 28: 24 **opposed** [3] - 22 : 15 , 29: 20, 32 :7 **opt** [1] - 12 : 16 **optional** [2] - 10 : 13 , 22 : 22 **Order** [3] - 4: 20 , 17 :6, 29: 22 **order** [1] - 31 :3 **original** [2] - 18 :7, 20 : 23 **originally** [1] - 20 : 24 **outreach** [1] - 8:6 **outside** [2] - 14 : 11 , 20 :8 

## P

**PAGE** [1] - 3:2 **page** [9] - 13 :8, 14 : 24, 18 :1, 22 : 13, 22 : 18, 22 : 24, 27 : 20 , 28: 16 **panel** [1] - 13 :5 **paragraph** [ 14] - 14 : 23, 17 :7, 21 : 17, 23 : 11 , 23 : 16, 25 :7, 26 : 12 , 28 : 11 , 28 : 17 , 30 : 15, 30 : 18, 30 : 22 , 30 : 24, 31 :1 **paraphrase** [1] - 19: 16 **Part** [22] - 9:5, 9:7, 9: 13 , 9: 16 , 9: 19 , 9: 20, 9:23 , 10 : 10 , 10 : 11 , 10 : 15, 10 : 16, 10 : 22 , 10 : 25, 11 :2, 11 :9, 11 : 15, 11 : 17, 12 : 14 , 20 :1, 20 :2, 20 :4, 23 : 12 **part** [8] - 20 :4, 22 :5, 22 : 14, 27 : 21 , 27 : 22 , 27 : 25, 28 : 18, 30 :5 **part 's**  [1] - 30 :4 **particulate** [4] - 11 : 23, 14 : 15, 27 :8, 27 : 12 **parties** [3] - 6:9, 33 : 14, 33 : 16 **Peacock** [1] - 32 :1 **PEACOCK** [63] - 2:3, 5:1, 5:7, 13 :6, 13 :8, 13 : 23, 14 : 22 , 15 :4, 16 :9, 17 :5, 17 : 11 , 17 : 15, 17 : 20, 18 : 11 , 18: 18, 19 : 13, 19 : 17 , 19: 21 , 20 : 13, 20 : 16 , 20 : 18, 21 : 10, 21 : 12 , 21 : 14, 21 : 16, 21 : 22 , 22 :8, 22 : 12 , 22 : 17, 22 : 19, 22 : 21 , 23 :7, 23 :9, 23 : 18 , 24 :6, 24 : 24, 25 :1, 25:4, 25:7, 26 : 10 , 26 : 22 , 27 :1, 28:1, 28 :7, 28: 15, 28 : 20, 29 :2, 29:6, 29:9, 29 : 12 , 29: 15, 29 : 20, 30 :8, 30 : 11 , 31 : 10, 31 : 13 , 31 : 16, 31 : 20, 31 : 22 , 32:3, 32 :7, 32 : 10 , 32 : 13 **period** [3] - 30 :22 , 

## KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street , Northwest , Albuquerque , New Mexico 87102

( 505 ) 243

- 5018

- Fax ( 505 ) 243

- 3606 

## 4

30 : 24 **periodic** [1] - 30 : 23 **permit** [1] - 26 :5 **person** [1] - 5: 23 **personally** [1] - 33 : 10 **persons** [1] - 5: 22 **petition** [2] - 5: 15, 6:7 **phrase** [1] - 24 : 22 **place** [6] - 9:5, 14 :6, 14 :9, 14 : 18 , 25: 17, 26 :7 **PLA N**  [1] - 1:5 **plan** [8] - 12 : 17, 15: 13, 15 : 22 , 16 :7, 16 : 22 , 18 : 10, 19 :1, 23 :4 **Plan** [2] - 5:4, 5: 14 **planner** [1] - 6: 17 **planning** [1] - 7: 23 **Planning** [1] - 6: 19 **plans** [ 10] - 8:5, 9:1, 9:2, 9: 10, 9: 12 , 9: 14 , 10 :5, 10 :9, 10 : 13 , 20 :8 **plays** [1] - 10 :24 **point** [2] - 21 :24 , 27 : 19 **pollutants** [1] - 8: 22 **portion** [1] - 9: 23 **practicability** [1] - 25: 25 **preamble** [1] - 22 : 15 **prefers** [1] - 19 : 19 **present** [1] - 6:8 **problem** [1] - 9:3 **procedures** [2] - 5: 19 , 14 : 18 **proceed** [1] - 6: 20 **proceeding** [2] - 33 :7, 33 : 14 **PROCEEDINGS** [1] - 1: 12 **Proceedings** [1] - 32 : 15 **processes** [1] - 9:9 **program** [1] - 20 :8 **programs** [1] - 20 :8 **projects** [ 11 ] - 8:5, 8:20 , 8: 23 , 8: 24 , 9:1, 9: 10 , 9: 14 , 10 :20 , 18: 14, 19 : 23, 20 :9 **promulgated** [2] - 9:21 , 27 : 22 **property** [2] - 25 : 12 , 25: 19 **proposal** [1] - 12 :2 **proposed** [ 10] - 5:2, 5: 12 , 9: 16 , 9: 19 ,12 : 22 , 19 : 14, 20 : 19 ,

26 : 12 , 31 : 25, 32 :1 **PROPOSED** [1] - 1:4 **Proposed** [4] - 4:6, 4:20 , 17:6, 29 :22 **Protection** [1] - 7: 16 **protections** [1] - 25: 18 **provide** [2] - 8: 10 , 12 :1 **provides** [1] - 10 : 17 **provisions** [3] - 17 :9, 26 : 15, 30 : 19 **Pub** [1] - 4: 13 **public** [7] - 6:4, 8:6, 12 :1, 12 : 12 , 25: 20, 25: 22 , 27 : 16 **PUBLIC** [1] - 33 : 19 **publication** [3] - 4: 17 , 31 :8, 31 : 12 **published** [4] - 12 :4, 12 :6, 31 : 17 , 31 : 19 **purpose** [6] - 8: 19 , 17:7, 17: 15 , 17 : 22 , 19:3, 30 : 12 **put** [1] - 14 :5 

## Q
**quality** [2] - 18 : 16 , 26 :5 **Quality** [5] - 6: 18, 6: 19 , 7: 17 , 8:2, 19:5 **questioning** [1] - 20 : 18 **questions** [7] - 12 : 21 , 13 :4, 23 :8, 23: 10, 27 :2, 27 :4, 27: 19 **quote** [1] - 19: 19 

## R

**radius** [1] - 13 : 17 **rather** [1] - 10 : 13 **read** [4] - 18 : 21 , 21 : 14, 22 : 22 , 31 :8 **real** [1] - 26 :1 **really** [2] - 25 : 21 , 30 : 12 **reason** [2] - 14 : 16, 28: 24 **Reasons** [3] - 4: 21 , 17:6, 29: 23 **reasons** [ 10] - 12 : 23 , 20 : 12 , 20 : 20, 21 : 17 , 26 : 13, 28 :3, 28:4, 30 :7, 31 : 25 , 32 : 13 **received** [1] - 12 : 10 **recommend** [1] - 12 : 14 **record** [5] - 6:5, 6: 14 , 7: 12 , 28: 24 , 33 : 11 **record 's**  [1] - 28 :25 **recorded** [2] - 6:1, 33 : 10 **reduce** [1] - 10 : 22 **reducing** [1] - 19 :3 **reductions** [1] - 19: 11 **refer** [2] - 10 :2, 18 :4 **reference** [1] - 21 : 18 **refers** [1] - 18 :6 **regarding** [1] - 25:8 **regardless** [1] - 15: 19 **region** [1] - 11 :23 **regional** [2] - 7: 23, 16 : 21 **Register** [5] - 4:7, 4: 10 , 12 :5, 12 :7, 18: 21 **regulate** [1] - 26 :8 **regulated** [1] - 25 : 14 **regulation** [6] - 9:4, 10 : 10, 11 :6, 11 :7, 11 :9, 11 : 12 **Regulations** [2] - 4:9, 4: 12 **regulations** [6] - 9:7, 12 :3, 14 : 25 , 27 : 22 , 28: 14, 28 : 19 **regulatory** [5] - 8:6, 8:7, 10 :8, 10 : 20 , 22 : 14 **related** [3] - 8:24 , 20 :5, 33 : 13 **relative** [1] - 33 : 15 **remains** [1] - 25 : 23 **REMEMBERED** [1] - 1: 13 **remove** [1] - 21 :8 **removed** [1] - 10 :4 **Repeal** [1] - 4:6 **repeal** [9] - 8:7, 9: 16, 9: 19 , 10 : 15 , 10 : 22 , 12 : 14, 29 :6, 29:7, 29: 21 **repealing** [1] - 12 : 19 **reporter** [1] - 6:4 **Reporters** [1] - 6:2 **request** [1] - 16 : 17 **require** [1] - 12 :4 **required** [7] - 10 :8, 11 : 11 , 19 : 11 , 24 : 19 , 25:9, 26 :6, 26 :7 **requirement** [3] - 12 : 17, 18 :3, 23 :5 **requirements** [ 10] - 10 :4, 10 : 18 , 10 : 21 , 11 :5, 23 : 12 , 24 :2, 24 : 12 , 26 :1, 30 : 16, 31 :2 **requires** [2] - 18:9, 18: 24 **rescinding** [1] - 25: 16 **respond** [3] - 15:7, 15: 17, 15 : 21 **response** [3] - 9: 20, 9:24 , 27 : 19 **responses** [2] - 29: 19, 32 :6 **responsibilities** [3] - 15: 24, 16 :2, 24 : 15 **resubmitted** [2] - 21 :2, 21 :9 **resubmitting** [2] - 16 :4, 24 :5 **resume** [1] - 7:24 **Resume** [2] - 4:4, 4:5 **retain** [1] - 11 :6 **retained** [1] - 11 : 10 **review** [2] - 8:4, 9:9 **reviewed** [1] - 15 : 11 **revised** [2] - 12 : 18 , 26 : 19 **revision** [3] - 4: 16, 10 :7, 23 :4 **Revisions** [1] - 4: 11 **revisions** [8] - 5:2, 9:24 , 10 :3, 10 : 11 , 11 :4, 11 : 12 , 11 : 13, 30 : 23 **RITA** [2] - 3:4, 7:1 **Rita** [3] - 4:5, 6: 18 , 16 : 13 **role** [2] - 10 : 23 , 10 : 24 **rule** [ 17] - 8:25 , 10 : 17, 11 : 14, 12 : 18 , 15: 19, 18 :3, 18:8, 21 :7, 22 : 15 , 23 : 20, 23 : 21 , 23 : 23, 23 : 25 , 24 :1, 25: 17 , 25: 21 , 26 :7 **rulemaking** [3] - 5: 15 , 5: 19 , 12 :3 **rules** [3] - 17 :25 , 26 :2, 26 :4 

## S

**Safe** [1] - 10 :1 **SAFETEA** [8] - 4: 13 , 4: 16 , 10 :3, 10 :4, 10 :7, 11 :4, 21 : 19 , 22 :1 **SAFETEA -** **LU** [8] - 4: 13 , 4: 16 , 10 :3, 10 :4, 10 :7, 11 :4, 21 : 19 , 22 :1 **Santa** [1] - 2: 10 **second** [7] - 26 : 14 , 28: 17, 29 : 12 , 29 : 13 , 29: 14, 30 :5, 32 :2 **seconded** [1] - 29: 16 **section** [5] - 6: 18 , 19:2, 20 :4, 21 :5, 25 :8 **Section** [5] - 4: 15 , 6: 19 , 18:4, 18 :9, 18: 24 **sections** [1] - 20 :3 **see** [5] - 16 : 22 , 21 : 20, 22 : 17, 22 : 23 , 22 : 25 **seeing** [1] - 27 : 15 **sent** [1] - 20 : 25 **sentence** [3] - 26 : 14, 26 : 18, 30 : 25 **September** [1] - 4:7 **set** [1] - 5: 19 **severity** [4] - 18 : 15 , 19:3, 19:9, 30 :3 **shall** [2] - 23 :1, 23 :5 **shorthand** [1] - 33 : 10 **show** [3] - 14 : 10 , 14 : 19, 16 : 21 **shown** [1] - 9: 19 **sign** [1] - 17 : 22 **signing** [1] - 24 :8 **Silver** [1] - 1: 15 **similar** [1] - 23 : 11 **Simultaneous** [2] - 29: 19, 32 :6 **SIP** [4] - 15: 16, 16 :3, 24 :4, 24 : 16 **SIP 's**  [1] - 19 :2 **SIPs** [2] - 23 : 13 , 24 :5 **situations** [1] - 14 : 11 **six** [1] - 8:22 **small** [1] - 11 : 21 **social** [1] - 25 :22 **sorry** [5] - 6: 22 , 22 :5, 22 :7, 23 : 15 , 26 : 11 **sources** [3] - 14 : 20 , 25: 23, 26 :9 **southern** [1] - 11 : 23 **Southern** [1] - 16 : 18 **Spanish** [1] - 12 :6 **specific** [1] - 22 : 21 **specified** [2] - 23 : 13, 30 : 17 **ss** [1] - 33 :2 **St** [1] - 2:9 **standard** [3] - 19:8, 19:9, 19: 10 **standards** [2] - 

## KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street , Northwest , Albuquerque , New Mexico 87102

( 505 ) 243

- 5018

- Fax ( 505 ) 243

- 3606 

## 5

18: 16, 19 :6 **Standards** [1] - 19:5 **stands** [1] - 10 : 25 **STATE** [3] - 1:1, 1:5, 33 :1 **State** [4] - 5:3, 5: 14 , 11 : 16, 23 :2 **state** [30] - 7: 12 , 8:4, 9:2, 9: 11 , 10 :5, 10 :8, 10 : 12 , 10 : 21 , 10 : 24 , 11 :6, 11 :7, 11 :21 , 11 : 23, 12 : 16, 12 : 17 , 15:3, 15:5, 15 :7, 15: 12 , 15 : 25, 16 :1, 16 :3, 23 : 25 , 24 :2, 24 :4, 26 :6, 27 :8, 27 :9, 27 : 11 **state 's**  [4] - 10 : 23 , 11 : 11 , 18 :7, 24 : 11 **statement** [ 13] - 12 : 23, 20 : 12 , 20 : 16 , 20 : 19, 21 : 17, 26 : 12 , 26 : 22 , 28 :3, 28:4, 30 :7, 30 : 12 , 31 : 25, 32 : 13 **Statement** [3] - 4:20 , 17 :6, 29: 23 **statements** [1] - 27 : 17 **states** [ 11 ] - 10 :4, 10 :7, 10 : 13 , 11 :5, 14 : 10, 15 : 15, 15 : 17 , 15: 20, 20 :7, 24 : 14, 30 :3 **statutory** [1] - 31 :1 **stepping** [1] - 26 : 11 **still** [8] - 14 : 14, 15: 20, 15 : 21 , 16 : 17 , 26 :3, 26 :6, 26 :7 **storms** [3] - 14 :4, 14 :8, 14 : 14 **stringent** [1] - 21 :7 **subject** [3] - 5: 22 , 5:24 , 8:8 **subjects** [1] - 25 :23 **submit** [6] - 10 :5, 15: 10, 23 :1, 23 :4, 23 :6 **submittal** [2] - 10 : 12 , 24 :3 **submittals** [1] - 24 : 16 **submitted** [3] - 15: 13, 20 : 24, 21 :1 **subparagraph** [3] - 23 :1, 23 :2, 25 : 13 **subpart** [2] - 27 :21 , 28: 18 **Subpart** [ 13] - 9:6, 9:21 , 9: 24 , 10 : 10 ,20 :6, 20 : 10 , 21 : 18,

21 : 23, 22 :8, 22 : 15, 22 : 22 , 23 : 13 **suggest** [2] - 30 : 15 , 30 : 18 **suggested** [1] - 31 :5 **suggesting** [1] - 30 :8 **Suite** [1] - 2:9 **supported** [6] - 8:20 , 8:23 , 9:1, 9: 10, 9: 14 , 18: 13 **sw orn**  [2] - 7:2, 33 :9 

## T

**talks** [3] - 17 : 18 , 18:2, 20 :1 **Tech** [1] - 7: 23 **technical** [2] - 6:8, 25: 25 **testified** [2] - 7:3, 11 : 17 **Testimony** [1] - 4: 19 **testimony** [ 15] - 5:21 , 5: 22 , 5: 24 , 6:9, 8: 10 , 8: 13 , 20 : 14 , 21 :6, 26 : 16 , 30 : 13, 31 :2, 31 :7, 33 :8, 33: 10, 33 : 11 **Texas** [1] - 7: 22 **text** [1] - 23 :22 **THE** [2] - 1:4, 1:5 **themselves** [1] - 11 :1 **Therefore** [1] - 14 : 24 **therefore** [4] - 25 :1, 25: 16, 25 : 21 , 26 :8 **thinking** [1] - 30 :2 **third** [2] - 17 : 25, 22 : 25 **three** [5] - 13 : 17 , 16 : 16, 17 :3, 25:9, 31 :1 **three -** **mile** [1] - 13 : 17 **timely** [2] - 15 : 14 , 19: 10 **timing** [1] - 17 :2 **TI MO** **THY** [1] - 2:4 **tiny** [5] - 13: 16, 13: 21 , 14 : 16, 22 :3 **TO** [2] - 1:4, 1:5 **today** [1] - 8: 13 **top** [1] - 22 : 24 **tough** [1] - 23 :8 **towards** [2] - 16 : 10, 30 : 16 **town** [1] - 13: 21 **Townsend** [1] - 6:2 **transcribed** [1] - 6:1 **TRANSCRIPT** [1] - 1: 12 **transcript** [3] - 6:3, 33 :9, 33 : 11 **transportation** [7] - 8:24 , 8: 25 , 18 : 13 , 19: 22 , 20 :5, 20 :9, 24 : 11 **Transportation** [1] - 10 :1 **transportation**   ** related** [2] - 8: 24 , 20 :5 **traveled** [1] - 23 :9 **Tribe** [1] - 23 :2 **triggered** [4] - 11 : 16 , 26 : 15, 26 : 23, 30 : 20 **true** [1] - 33 : 11 **turn** [2] - 5:5, 29 :1 **two** [2] - 20 :3, 24 : 12 **typo** [3] - 21 :3, 21 : 11 , 30 : 14 

## U

**um -** **hum** [4] - 17 : 11 , 19: 17, 22 : 12 , 22 : 19 **unanimous** [2] - 29: 21 , 31 :4 **under** [22] - 5:21 , 8: 13 , 8: 24 , 10 :6, 10 : 24, 11 :2, 17 : 25, 18:1, 18:3, 18 :6, 18 :8, 18: 21 , 19 : 25, 20 :6, 20 :9, 20 : 19 , 22 : 24, 22 : 25, 23 :1, 25: 13, 25: 15, 31 :3 **unfortunate** [1] - 17 :2 **unfortunately** [2] - 16 : 17, 17 :3 **University** [1] - 7: 22 **unnecessary** [1] - 11 :5 **update** [3] - 11 : 11 , 15: 12 , 15 : 21 **urban** [1] - 7: 23 **US** [1] - 4: 16 **Users** [1] - 10 :2 **uses** [1] - 28 : 13 

## V

**value** [1] - 25 : 22 **Veterans '**  [1] - 1: 14 **vi ewable**  [1] - 6:5 **vi olation**  [2] - 19 :7, 19:9 **vi olations**  [3] -


## KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street , Northwest , Albuquerque , New Mexico 87102

( 505 ) 243

- 5018

- Fax ( 505 ) 243

- 3606 

## 6

18: 15, 19 :4, 30 :9 **Virginia** [1] - 7:23 **vi sibility**  [2] - 25 : 12 , 25: 19 **Volkerding** [2] - 5:7, 5:9 **VOLKERDING** [ 12] - 2:4, 5:6, 5:8, 6: 21 , 12 : 24, 13 :2, 13 :4, 13 :7, 27 :3, 27 : 15 , 28: 23, 32 :2 

## W

**walk** [2] - 23 : 14 , 23 : 19 **welcome** [1] - 27 : 14 **welfare** [2] - 25 : 12 , 25: 18 **whole** [1] - 13 : 20 **wind** [5] - 14 :4, 14 :7, 14 :9, 14 : 14 , 16 : 17 **windy** [1] - 17 :4 **wish** [1] - 10 : 14 **witness** [1] - 7:7 **witnesses** [3] - 6: 11 , 33 :8, 33 : 12 **WITNESSES** [1] - 3:3 **word** [2] - 29 :7, 29: 10 **wording** [1] - 28: 13 **words** [2] - 24 :6, 27 : 25 **writing** [1] - 22 :4 **written** [1] - 8: 10 **Written** [1] - 4: 19 

## Y

**years** [3] - 7: 19, 16 : 16, 17 :3