SUSANA MARTINEZ 

Governor 

JOHN A. SANCHEZ 

Lieutenant Governor 

November 1, 2013 

Mr. Ron Curry 

NEW ME::JR~IVEU- 6POL 

ENVIRONMENT 1)\ijj> XR.iilMI~EC. 

Office of the s~J»ltYar)i PH S: o·t 

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 A venue, Suite 1200 

Dallas, TX 75202-2733 

Dear Mr. Curry: 

RYAN FLYNN 

Cabinet Secretary-Designate 

BUTCHTONGATE 

Deputy Secretary 

On behalf of the 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 of New 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 of publication and notice of intent 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 of the SIP 

revision is an electronic copy of the submittal provided on disk which I certifY to be an exact 

duplicate of the hard copy. 

If there are any questions concerning this SIP submittal, please contact Gail Cooke of my staff at 

(505) 476-4319. 

Ryan lynn 

Secretary-Designate 

Enclosures 

cc: Mr. Guy Donaldson, EPA Region 6 

1

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·.· 


Proposed Repeal of 20.2.98 NMAC 1

1 [TITLE 20 ENVIRONMENTAL PROTECTION 

2 CHAPTER 2 AIR QUALITY (STATEWIDE) 

3 PART 98 CONFORMITY OF GENERAL FEDERAL ACTIONS TO THE STATE 

4 IMPLEMENTATION PLAN 

5 

6 

7 20.2.98.1 ISSUING AGENCY: New Mexico Environmental Improvement Board. 

8 [12/14/94; 08/02/96; 20.2.98.1 NMAC - Rn, 20 NMAC 2.98.100 10/31/02] 

9 

10 20.2.98.2 SCOPE: All departments, agencies and instrumentalities of the federal government. 

11 A. The provisions of this Part shall apply in all nonattainment and maintenance areas for criteria 

12 pollutants for which the area is designated non-attainment or has a maintenance plan and for which the Department 

13 has jurisdiction. 

14 B. Under section 176(c) of the Federal Act and 40 CFR part 51 subpart W, a Federal agency must 

15 make a determination that a Federal action conforms to the SIP in accordance with the requirements of this Part 

16 before the action is taken. 

17 C. The preceding sentence does not include Federal actions where either: 

18 (1) A National Environmental Policy Act (NEPA) analysis was completed as evidenced by a final environmental 

19 assessment (EA), environmental impact statement (EIS), or finding of no significant impact (FONSI) that was 

20 prepared prior to January 31, 1994, or 

21 (2) Prior to January 31, 1994, an EA was commenced or a contract was awarded to develop the specific 

22 environmental analysis; sufficient environmental analysis was completed by March 15, 1994, so that the Federal 

23 agency may determine that the Federal action is in conformity with the specific requirements and the purposes of the 

24 SIP pursuant to the agency's affirmative obligation under section 176(c) of the Federal Act; and a written 

25 determination of conformity under section 176(c) of the Federal Act has been made by the Federal agency 

26 responsible for the Federal action by March 15, 1994. 

27 D. Notwithstanding any provision of this Part, a determination that an action is in conformity with the 

28 SIP does not exempt the action from any other requirements of the SIP, the NEPA, or the Federal Act. 

29 [12/14/94; 08/02/96; 20.2.98.2 NMAC - Rn, 20 NMAC 2.98.101 10/31/02] 

30 

31 20.2.98.3 STATUTORY AUTHORITY: NMSA 1978, section 72-4-5(B) provides that the Environmental 

32 Improvement Board shall adopt regulations "to attain and maintain national ambient air quality standards and 

33 prevent or abate air pollution...." 

34 [12/14/94; 08/02/96; 20.2.98.3 NMAC - Rn, 20 NMAC 2.98.102 10/31/02] 

35 

36 20.2.98.4 DURATION: Permanent. 

37 [12/14/94; 08/02/96; 20.2.98.4 NMAC - Rn, 20 NMAC 2.98.103 10/31/02] 

38 

39 20.2.98.5 EFFECTIVE DATE: December 10, 1994 except where a later date is cited at the end of a section 

40 or paragraph. 

41 [12/14/94; 08/02/96; 20.2.98.5 NMAC - Rn, 20 NMAC 2.98.104 10/31/02] 

42 [The latest effective date of any section in this Part is 10/31/02.] 

43 

44 20.2.98.6 OBJECTIVE: The purpose of this Part is to implement section 176(c) of the Federal Act, as 

45 amended (42 U.S.C. 7401 et seq.) and regulations under 40 CFR part 51 subpart W, with respect to the conformity 

46 of general Federal actions to the SIP. Under those authorities, no department, agency or instrumentality of the 

47 Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or 

48 approve any activity which does not conform to a SIP. This Part sets forth policy, criteria, and procedures for 

49 demonstrating and assuring conformity of such actions to the SIP. 

50 [12/14/94; 08/02/96; 20.2.98.6 NMAC - Rn, 20 NMAC 2.98.105 10/31/02] 

51 

52 20.2.98.7 DEFINITIONS: Terms used but not defined in this Part shall have the meaning given them by 

53 the Federal Act and US EPA's regulations, in that order of priority. 

54 A. "Affected Federal land manager" means the Federal agency or the Federal official charged with 

55 direct responsibility for management of an area designated as Class I under the Federal Act (42 U.S.C. 7472) that is 

56 located within one hundred kilometers (100 km) of the proposed Federal action. 
Proposed Repeal of 20.2.98 NMAC 2

1 B. "Areawide air quality modeling analysis" means an assessment on a scale that includes the 

2 entire nonattainment or maintenance area which uses an air quality dispersion model to determine the effects of 

3 emissions on air quality. 

4 C. "Cause or contribute to a new violation" means a Federal action that: 

5 (1) Causes a new violation of a national ambient air quality standard (NAAQS) at a location in a nonattainment or 

6 maintenance area which would otherwise not be in violation of the standard during the future period in question if 

7 the Federal action were not taken, or 

8 (2) Contributes, in conjunction with other reasonably foreseeable actions, to a new violation of a NAAQS at a 

9 location in a nonattainment or maintenance area in a manner that would increase the frequency or severity of the 

10 new violation. 

11 D. "Caused by," as used in the terms "direct emissions" and "indirect emissions," means emissions 

12 that would not otherwise occur in the absence of the Federal action. 

13 E. "Criteria pollutant or standard" means any pollutant for which there is established a NAAQS 

14 at 40 CFR part 50. 

15 F. "Direct emissions" means those emissions of a criteria pollutant or its precursors that are caused 

16 or initiated by the Federal action and occur at the same time and place as the action. 

17 G. "Emergency" means a situation where extremely quick action on the part of the Federal agencies 

18 involved is needed and where the timing of such Federal activities makes it impractical to meet the requirements of 

19 this Part, such as natural disasters like hurricanes or earthquakes, civil disturbances such as terrorist acts, and 

20 military mobilizations 

21 H. "Emissions budgets" are those portions of the total allowable emissions defined in a revision to 

22 the SIP for a certain date for the purpose of meeting reasonable further progress milestones or attainment or 

23 maintenance demonstrations, for any criteria pollutant or its precursors, allocated by the SIP to: (1) mobile sources, 

24 (2) any stationary source or class of stationary sources, (3) any class of area sources, or (4) any subcategory of the 

25 emissions inventory. The allocation system must be specific enough to assure meeting the criteria of section 

26 176(c)(1)(B) of the Federal Act. An emissions budget may be expressed in terms of an annual period, a daily period, 

27 or other period established in the SIP. 

28 I. "Emission offsets," for purposes of 20.2.98.113 NMAC are emissions reductions which are 

29 quantifiable, consistent with the SIP attainment and reasonable further progress demonstrations; surplus to 

30 reductions required by, and credited to, other SIP provisions; enforceable under both State and Federal law; and 

31 permanent within the time frame specified by the program. 

32 J. "Emissions for which a Federal agency has a continuing program responsibility" means 

33 emissions that are specifically caused by an agency carrying out its authorities, and does not include emissions that 

34 occur due to subsequent activities, unless such activities are required by the Federal agency. Where an agency, in 

35 performing its normal program responsibilities, takes actions itself or imposes conditions that result in air pollutant 

36 emissions by a non-Federal entity taking subsequent actions, such emissions are covered by the meaning of a 

37 continuing program responsibility. 

38 K. "Federal action" means any activity engaged in by a department, agency, or instrumentality of 

39 the Federal government, or any activity that a department, agency or instrumentality of the Federal government 

40 supports in any way, provides financial assistance for, licenses, permits, or approves, other than activities related to 

41 transportation plans, programs, and projects developed, funded, or approved under title 23 U.S.C. or the Federal 

42 Transit Act (49 U.S.C. 1601 et seq.). Where the Federal action is a permit, license, or other approval for some aspect 

43 of a non-Federal undertaking, the relevant activity is the part, portion, or phase of the non-Federal undertaking that 

44 requires the Federal permit, license, or approval. 

45 L. "Federal agency" means, for purposes of this Part, a Federal department, agency, or 

46 instrumentality of the Federal government. 

47 M. "Increase the frequency or severity of any existing violation of any standard in any area"

48 means to cause a nonattainment area to exceed a standard more often or to cause a violation at a greater 

49 concentration than previously existed and/or would otherwise exist during the future period in question, if the 

50 project were not implemented. 

51 N. "Indirect emissions" means those emissions of a criteria pollutant or its precursors that: 

52 (1) are caused by the Federal action, but may occur later in time and/or may be farther removed in distance from the 

53 action itself but are still reasonably foreseeable, and 

54 (2) the Federal agency can practicably control and will maintain control over due to a continuing program 

55 responsibility of the Federal agency. These emissions may include, but are not limited to the following: 
Proposed Repeal of 20.2.98 NMAC 3

1 (a) traffic on or to, or stimulated or accommodated by, a proposed facility which is related to increases or other 

2 changes in the scale or timing of operations of such facility; 

3 (b) emissions related to the activities of employees of contractors or Federal employees; 

4 (c) emissions related to employee commuting and similar programs to increase average vehicle occupancy imposed 

5 on all employers of a certain size in the locality; 

6 (d) emissions related to the use of Federal facilities under lease or temporary permit; 

7 (e) emissions related to the activities of contractors or leaseholders that may be addressed by provisions that are 

8 usual and customary for contracts or leases or within the scope of contractual protection of the interests of the 

9 United States; and 

10 (f) fugitive dust from dirt roads or disturbed soil. 

11 O. "Local air quality modeling analysis" means an assessment of localized impacts on a scale 

12 smaller than the entire nonattainment or maintenance area, including, for example, congested roadway intersections 

13 and highways or transit terminals, which uses an air quality dispersion model to determine the effects of emissions 

14 on air quality. 

15 P. "Maintenance area" means any geographic area of the United States previously designated 

16 nonattainment pursuant to the Federal Act Amendments of 1990 and subsequently redesignated to attainment 

17 subject to the requirement to develop a maintenance plan approved under section 175A of the Federal Act. 

18 Q. "Maintenance plan" means a revision to the SIP, meeting the requirements of section 175A of 

19 the Federal Act. 

20 R. "Metropolitan planning organization (MPO)" is that organization designated as being 

21 responsible, together with the State, for conducting the continuing, cooperative, and comprehensive planning 

22 process under 23 U.S.C. 134 and 49 U.S.C. 1607. 

23 S. "Milestone" has the meaning given in sections 182(g)(l) and 189(c)(1) of the Federal Act. A 

24 milestone consists of an emissions level and the date on which it is required to be achieved. 

25 T. "National ambient air quality standards (NAAQS)" are those standards established pursuant to 

26 section 109 of the Federal Act and include standards for carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO2), 

27 ozone, particulate matter (PM10), and sulfur dioxide (SO2). 

28 U. "NEPA" means the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et 

29 seq.). 

30 V. "Nonattainment area (NAA)" means any geographic area of the United States which has been 

31 designated as nonattainment under section 107 of the Federal Act and described in 40 CFR part 81. 

32 W. "Precursors of a criteria pollutant" are: 

33 (1) For ozone, nitrogen oxides (NOx) (unless an area is exempted from NOx requirements under section 182(f) of 

34 the Federal Act), and volatile organic compounds (VOC); and 

35 (2) For PM10, those pollutants described in the PM10 nonattainment area SIP as significant contributors to the 

36 PM10 levels. 

37 X. "Reasonably foreseeable emissions" are projected future indirect emissions that are: identified at 

38 the time the conformity determination is made; the location of such emissions is known; and the emissions are 

39 quantifiable, as described and documented by the Federal agency based on its own information and after reviewing 

40 any information presented to the Federal agency. 

41 Y. "Regionally significant action" means a Federal action for which the direct and indirect 

42 emissions of any pollutant represent ten percent (10%) or more of a nonattainment or maintenance area's emissions 

43 inventory for that pollutant. 

44 Z. "Regional water or wastewater projects" include construction, operation, and maintenance of 

45 water and/or wastewater conveyances, water and/or wastewater treatment facilities, and water storage reservoirs 

46 which affect a large portion of a nonattainment or maintenance area. 

47 AA. "State Implementation Plan (SIP)" means the applicable portion (or portions) of the New 

48 Mexico State Implementation Plan (SIP), or most recent revision thereof, which has been approved under section 

49 110 of the Federal Act, or promulgated under section 110(c) (Federal Implementation Plan) of the Federal Act, or 

50 promulgated or approved pursuant to regulations promulgated under section 301(d) of the Federal Act and which 

51 implements the relevant requirements of the Federal Act. 

52 AB. "Total of direct and indirect emissions" means the sum of direct and indirect emissions 

53 increases and decreases caused by the Federal action; i.e., the "net" emissions considering all direct and indirect 

54 emissions. Any emissions decreases used to reduce such total shall have already occurred or shall be enforceable 

55 under State and Federal law. The portion of emissions which are exempt or presumed to conform under subsections 

56 A, B, C, or D of 20.2.98.108 NMAC are not included in the "total of direct and indirect emissions", except as 
Proposed Repeal of 20.2.98 NMAC 4

1 provided in subsection H of 20.2.98.108 NMAC. The "total of direct and indirect emissions" includes emissions of 

2 criteria pollutants and emissions of precursors of criteria pollutants. The segmentation of projects for conformity 

3 analyses when emissions are reasonably foreseeable is not permitted by this Part. 

4 [12/14/94; 08/02/96; 20.2.98.7 NMAC - Rn, 20 NMAC.2.98.106 10/31/02] 

5 

6 20.2.98.8 to 20.2.98.106 [RESERVED] 

7 

8 20.2.98.107 CONFORMITY DETERMINATIONS: 

9 A. Conformity determinations for Federal actions related to transportation plans, programs, and 

10 projects developed, funded, or approved under title 23 U.S.C. or the Federal Transit Act (49 U.S.C. 1601 et seq.) 

11 must meet the procedures and criteria of 20.2.99 NMAC (Conformity to the State Implementation Plan of 

12 Transportation Plans, Programs, and Projects), in lieu of the procedures set forth in this Part. 

13 B. For Federal actions not covered by subsection A of 20.2.98.107 NMAC, a conformity 

14 determination is required for each pollutant where the total of direct and indirect emissions in a nonattainment or 

15 maintenance area caused by a Federal action would equal or exceed any of the rates in subsections C or D of 

16 20.2.98.107 NMAC. 

17 C. For purposes of subsection B of 20.2.98.107 NMAC, the following rates apply in nonattainment 

18 areas (NAAs): 

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 

21 D. For purposes of subsection B of 20.2.98.107 NMAC, the following rates apply in maintenance 

22 areas: 

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 

25 [12/14/94; 08/02/96; 20.2.98.107 NMAC - Rn, 20 NMAC 2.98.107 10/31/02] 

26 

27 20.2.98.108 EXEMPTIONS: 

28 A. The requirements of this Part shall not apply to: 

29 (1) Actions where the total of direct and indirect emissions are below the emissions levels specified in subsection B 

30 of 20.2.98.107 NMAC; 

31 (2) The following actions which would result in no emissions increase or an increase in emissions that is clearly de 

32 minimis: 
Proposed Repeal of 20.2.98 NMAC 5

1 (a) Judicial and legislative proceedings. 

2 (b) Continuing and recurring activities such as permit renewals where activities conducted will be similar in scope 

3 and operation to activities currently being conducted. 

4 (c) Rulemaking and policy development and issuance. 

5 (d) Routine maintenance and repair activities, including repair and maintenance of administrative sites, roads, trails, 

6 and facilities. 

7 (e) Civil and criminal enforcement activities, such as investigations, audits, inspections, examinations, prosecutions, 

8 and the training of law enforcement personnel. 

9 (f) Administrative actions such as personnel actions, organizational changes, debt management or collection, cash 

10 management, internal agency audits, program budget proposals, and matters relating to the administration and 

11 collection of taxes, duties and fees. 

12 (g) The routine, recurring transportation of material and personnel. 

13 (h) Routine movement of mobile assets, such as ships and aircraft, in home port reassignments and stations (when 

14 no new support facilities or personnel are required) to perform as operational groups and/or for repair or overhaul. 

15 (i) Maintenance dredging and debris disposal where no new depths are required, applicable permits are secured, and 

16 disposal will be at an approved disposal site. 

17 (j) With respect to existing structures, properties, facilities and lands where future activities conducted will be 

18 similar in scope and operation to activities currently being conducted at the existing structures, properties facilities, 

19 and lands; for example, actions such as relocation of personnel; disposition of federally-owned existing structures, 

20 properties, facilities, and lands; rent subsidies; operation and maintenance cost subsidies; the exercise of 

21 receivership or conservatorship authority; assistance in purchasing structures; and the production of coins and 

22 currency. 

23 (k) The granting of leases, licenses such as for exports and trade, permits, and easements where activities conducted 

24 will be similar in scope and operation to activities currently being conducted. 

25 (l) Planning, studies, and provision of technical assistance. 

26 (m) Routine operation of facilities, mobile assets and equipment. 

27 (n) Transfers of ownership, interests, and titles in land, facilities, and real and personal properties, regardless of the 

28 form or method of the transfer. 

29 (o) The designation of empowerment zones, enterprise communities, or viticultural areas. 

30 (p) Actions by any of the Federal banking agencies or the Federal Reserve Banks, including actions regarding 

31 charters, applications, notices, licenses, the supervision or examination of depository institutions or depository 

32 institution holding companies, access to the discount window, or the provision of financial services to banking 

33 organizations or to any department, agency or instrumentality of the United States. 

34 (q) Actions by the Board of Governors of the Federal Reserve System or any Federal Reserve Bank to affect 

35 monetary or exchange rate policy. 

36 (r) Actions that implement a foreign affairs function of the United States. 

37 (s) Actions (or portions thereof) associated with transfers of land, facilities, title, and real properties through an 

38 enforceable contract or lease agreement where the delivery of the deed is required to occur promptly after a specific, 

39 reasonable condition is met, such as promptly after the land is certified as meeting the requirements of the 

40 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and where the Federal 

41 agency does not retain continuing authority to control emissions associated with the lands, facilities, title, or real 

42 properties. 

43 (t) Transfers of real property, including land, facilities, and related personal property from a Federal entity to 

44 another Federal entity and assignments of real property, including land, facilities, and related personal property from 

45 a Federal entity to another Federal entity for subsequent deeding to eligible applicants. 

46 (u) Actions by the Department of the Treasury to affect fiscal policy and to exercise the borrowing authority of the 

47 United States. 

48 (3) Actions where the emissions are not reasonably foreseeable, such as the following: 

49 (a) Initial Outer Continental Shelf lease sales which are made on a broad scale and are followed by exploration and 

50 development plans on a project level. 

51 (b) Electric power marketing activities that involve the acquisition, sale and transmission of electric energy. 

52 (4) Individual actions which implement a decision to conduct or carry out a program that has been found to conform 

53 to the SIP, such as prescribed burning actions which are consistent with a land management plan that has been found 

54 to conform to the SIP. 

55 B. Notwithstanding the other requirements of this Part, a conformity determination is not required for 

56 the following Federal actions (or portion thereof): 
Proposed Repeal of 20.2.98 NMAC 6

1 (1) The portion of an action that includes major new or modified stationary sources that require a permit under the 

2 new source review (NSR) program (section 173 of the Federal Act) or the prevention of significant deterioration 

3 (PSD) program (title I, part C of the Federal Act). 

4 (2) Actions in response to emergencies or natural disasters such as hurricanes, earthquakes, etc., which are 

5 commenced on the order of hours or days after the emergency or disaster and, if applicable, which meet the 

6 requirements of subsection C of 20.2.98.108 NMAC; 

7 (3) Research, investigations, studies, demonstrations, or training (other than those exempted under paragraph (2) of 

8 subsection A of 20.2.98.108 NMAC) where no environmental detriment is incurred and/or the particular action 

9 furthers air quality research, as determined by the Department; 

10 (4) Alteration and additions of existing structures as specifically required by new or existing applicable 

11 environmental legislation or environmental regulations (e.g., hush houses for aircraft engines and scrubbers for air 

12 emissions). 

13 (5) Direct emissions from remedial and removal actions carried out under the Comprehensive Environmental 

14 Response, Compensation and Liability Act (CERCLA) and associated regulations to the extent such emissions either 

15 comply with the substantive requirements of the PSD/NSR permitting program or are exempted from other 

16 environmental regulation under the provisions of CERCLA and applicable regulations issued under CERCLA. 

17 C. Federal actions which are part of a continuing response to an emergency or disaster under 

18 paragraph (2) of subsection B of 20.2.98.108 NMAC and which are to be taken more than six months after the 

19 commencement of the response to the emergency or disaster under paragraph (2) of subsection B of 20.2.98.108 

20 NMAC are exempt from the requirements of this section (20.2.98.108 NMAC) only if: 

21 (1) The Federal agency taking the actions makes a written determination that, for a specified period not to exceed an 

22 additional six months, it is impractical to prepare the conformity analyses which would otherwise be required and 

23 the actions cannot be delayed due to overriding concerns for public health and welfare, national security interests 

24 and foreign policy commitments; or 

25 (2) For actions which are to be taken after those actions covered by paragraph (1) of subsection C 20.2.98.108 

26 NMAC, the Federal agency makes a new determination as provided in paragraph (1) of subsection C 20.2.98.108 

27 NMAC. 

28 D. Notwithstanding other requirements of this Part, individual actions or classes of actions specified 

29 by individual Federal agencies that have met the criteria set forth in either paragraph (1) or (2) of subsection E of 

30 20.2.98.108 NMAC and the procedures set forth in subsection F of 20.2.98.108 NMAC are presumed to conform, 

31 except as provided in subsection H of 20.2.98.108 NMAC. 

32 E. The Federal agency shall meet the criteria for establishing activities that are presumed to conform 

33 by fulfilling the requirements set forth in either paragraph (1) or (2) of subsection E of 20.2.98.108 NMAC: 

34 (1) The Federal agency shall clearly demonstrate using methods consistent with this Part that the total of direct and 

35 indirect emissions from the type of activities which would be presumed to conform would not: 

36 (a) Cause or contribute to any new violation of any standard in any area; 

37 (b) Interfere with provisions in the SIP for maintenance of any standard; 

38 (c) Increase the frequency or severity of any existing violation of any standard in any area; or 

39 (d) Delay timely attainment of any standard or any required interim emission reductions or other milestones in any 

40 area including, where applicable, emission levels specified in the SIP for purposes of: 

41 (i) A demonstration of reasonable further progress; 

42 (ii) A demonstration of attainment; or 

43 (iii) A maintenance plan; or 

44 (2) The Federal agency shall provide documentation that the total of direct and indirect emissions from such future 

45 actions would be below the emission rates for a conformity determination that are established in subsection B of 

46 20.2.98.107 NMAC based, for example, on similar actions taken over recent years. 

47 F. In addition to meeting the criteria for establishing exemptions set forth in paragraphs (1) or (2) of 

48 subsection E of 20.2.98.108 NMAC, the following procedures must also be complied with to presume that activities 

49 will conform: 

50 (1) The Federal agency shall identify through publication in the Federal Register its list of proposed activities that 

51 are presumed to conform and the analysis, assumptions, emissions factors, and criteria used as the basis for the 

52 presumptions; 

53 (2) The Federal agency shall notify the US EPA Region 6 Office, the Department and, where applicable, the agency 

54 designated under section 174 of the Act, and the MPO; 

55 (3) The Federal agency shall document its response to all the comments received and make the comments, response, 

56 and final list of activities available to the public upon request; and 
Proposed Repeal of 20.2.98 NMAC 7

1 (4) The Federal agency shall publish the final list of such activities in the Federal Register. 

2 G. Notwithstanding the other requirements of this Part, when the total of direct and indirect emissions 

3 of any pollutant from a Federal action does not equal or exceed the rates specified in subsection B of 20.2.98.107 

4 NMAC, but represents ten percent or more of a nonattainment or maintenance area's total emissions of that 

5 pollutant, the action is defined as a regionally significant action and the requirements of 20.2.98.2 NMAC and 

6 20.2.98.6 NMAC and 20.2.98.110 NMAC through 20.2.98.115 NMAC shall apply for the Federal action. 

7 H. Where an action presumed to be de minimis under paragraphs (1) or (2) of subsection A of 

8 20.2.98.108 NMAC or otherwise presumed to conform under subsection D of 20.2.98.108 NMAC is a regionally 

9 significant action or where an action otherwise presumed to conform under subsection D of 20.2.98.108 NMAC 

10 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 

11 be considered to be de minimis or presumed to conform and the requirements of 20.2.98.2 NMAC and 20.2.98.6 

12 NMAC and 20.2.98.110 NMAC through 20.2.98.115 NMAC shall apply for the Federal action. 

13 I. Any measures used to affect or determine applicability of this Part, as determined under this 

14 section (20.2.98.108 NMAC), must result in projects that are in fact de minimis; must result in such de minimis 

15 levels prior to the time the applicability determination is made; and must be State or Federally enforceable. Any 

16 measures that are intended to reduce air quality impacts for this purpose shall be identified (including the 

17 identification and quantification of all emission reductions claimed) and the process for implementation (including 

18 any necessary funding of such measures and tracking of such emission reductions) and enforcement of such 

19 measures shall be described, including an implementation schedule containing explicit timelines for implementation. 

20 Prior to a determination of applicability, the Federal agency making the determination shall obtain written 

21 commitments from the appropriate persons or agencies to implement any measures which are identified as 

22 conditions for making such determinations. Such written commitment shall describe such mitigation measures and 

23 the nature of the commitment, in a manner consistent with the previous sentence. After this Part is approved by US 

24 EPA, enforceability through the SIP of any measures necessary for a determination of applicability will apply to all 

25 persons who agree to reduce direct and indirect emissions associated with a Federal action for a conformity 

26 applicability determination. 

27 [12/14/94; 08/02/96; 20.2.98.108 NMAC - Rn, 20 NMAC 2.98.108 10/31/02] 

28 

29 20.2.98.109 CONFORMITY ANALYSIS: Any Federal department, agency, or instrumentality of the Federal 

30 government taking an action subject to 40 CFR part 51 subpart W and this Part must make its own conformity 

31 determination, consistent with the requirements of this Part. In making its conformity determination, a Federal 

32 agency shall consider comments from any interested parties. Where multiple Federal agencies have jurisdiction for 

33 various aspects of a project, a Federal agency may choose to adopt the analysis of another Federal agency (to the 

34 extent the proposed action and impacts analyzed are the same as the project for which a conformity determination is 

35 required) or develop its own analysis in order to make its conformity determination. 

36 [12/14/94; 08/02/96; 20.2.98.109 NMAC - Rn, 20 NMAC 2.98.109 10/31/02] 

37 

38 20.2.98.110 REPORTING REQUIREMENTS: 

39 A. Federal agency making a conformity determination under 20.2.98.113 NMAC shall provide to the 

40 US EPA Region 6 Office; the Department; and, where applicable, affected Federal land managers; the agency 

41 designated under section 174 of the Federal Act; and the MPO a thirty (30) day notice which describes the proposed 

42 action and the Federal agency's draft conformity determination on the action. 

43 B. Federal agency shall notify the US EPA Region 6 Office; the Department; and, where applicable, 

44 affected Federal land managers; the agency designated under section 174 of the Federal Act; and the MPO; within 

45 thirty (30) days after making a final conformity determination under 20.2.98.113 NMAC. 

46 [12/14/94; 08/02/96; 09/08/99; 20.2.98.110 NMAC - Rn, 20 NMAC 2.98.110 10/31/02] 

47 

48 20.2.98.111 PUBLIC PARTICIPATION: 

49 A. Upon request by any person regarding a specific Federal action, a Federal agency shall make 

50 available for review its draft conformity determination under 20.2.98.113 NMAC with supporting materials which 

51 describe the analytical methods, assumptions, and conclusions relied upon in making the applicability analysis and 

52 draft conformity determination. 

53 B. A Federal agency shall make public its draft conformity determination under 20.2.98.113 NMAC 

54 by placing a notice by prominent advertisement in a daily newspaper of general circulation in the areas affected by 

55 the action and by providing thirty (30) days for written public comment prior to taking any formal action on the draft 
Proposed Repeal of 20.2.98 NMAC 8

1 determination. This comment period may be concurrent with any other public involvement, such as occurs in the 

2 NEPA process. 

3 C. A Federal agency shall document its response to all the comments received on its draft conformity 

4 determination under 20.2.98.113 NMAC and make the comments and responses available, upon request by any 

5 person, regarding a specific Federal action, within thirty (30) days of the final conformity determination. 

6 D. A Federal agency shall make public its final conformity determination under 20.2.98.113 NMAC 

7 for a Federal action by placing a notice by prominent advertisement in a daily newspaper of general circulation in 

8 the areas affected by the action within thirty (30) days of the final conformity determination. 

9 [12/14/94; 08/02/96; 20.2.98.111 NMAC - Rn, 20 NMAC 2.98.111 10/31/02] 

10 

11 20.2.98.112 FREQUENCY OF CONFORMITY DETERMINATIONS: 

12 A. The conformity status of a Federal action automatically lapses five (5) years from the date a final 

13 conformity determination is reported under 20.2.98.110 NMAC unless the Federal action has been completed or a 

14 continuous program has been commenced to implement that Federal action within a reasonable time. 

15 B. Ongoing Federal activities at a given site showing continuous progress are not new actions and do 

16 not require periodic redeterminations so long as the emissions associated with such activities are within the scope of 

17 the final conformity determination reported under 20.2.98.110 NMAC. 

18 C. If, after the conformity determination is made, the Federal action is changed so that there is an 

19 increase in the total of direct and indirect emissions above the levels in subsection B of 20.2.98.107 NMAC, a new 

20 conformity determination is required. 

21 [12/14/94; 08/02/96; 20.2.98.112 NMAC - Rn, 20 NMAC 2.98.112 10/31/02] 

22 

23 20.2.98.113 CRITERIA FOR DETERMINING CONFORMITY OF GENERAL FEDERAL ACTIONS: 

24 A. An action required under 20.2.98.2 NMAC, 20.2.98.107 NMAC or 20.2.98.108 NMAC to have a 

25 conformity determination for a specific pollutant, will be determined to conform to the SIP if, for each pollutant that 

26 exceeds the rates in subsection B of 20.2.98.107 NMAC or otherwise requires a conformity determination due to the 

27 total of direct and indirect emissions from the action, the action meets the requirements of subsection C of 

28 20.2.98.113 NMAC, and meets any of the following requirements: 

29 (1) For any criteria pollutant, the total of direct and indirect emissions from the action are specifically identified and 

30 accounted for in the SIP's attainment or maintenance demonstration; 

31 (2) For ozone or nitrogen dioxide, the total of direct and indirect emissions from the action are fully offset within the 

32 same nonattainment or maintenance area through a revision to the SIP or a measure similarly enforceable under 

33 State and Federal law that effects emission reductions so that there is no net increase in emissions of that pollutant; 

34 (3) For any criteria pollutant, except ozone and nitrogen dioxide, the total of direct and indirect emissions from the 

35 action meet the requirements: 

36 (a) specified in subsection B of 20.2.98.113 NMAC, based on areawide air quality modeling analysis and local air 

37 quality modeling analysis, or 

38 (b) specified in paragraph (5) of subsection A of 20.2.98.113 NMAC and, for local air quality modeling analysis, the 

39 requirement of subsection B of 20.2.98.113 NMAC; 

40 (4) For CO or PM10, 

41 (a) Where the Department determines that an areawide air quality modeling analysis is not needed, the total of direct 

42 and indirect emissions from the action meet the requirements specified in subsection B of 20.2.98.113 NMAC based 

43 on local air quality modeling analysis, or 

44 (b) Where the Department determines that an areawide air quality modeling analysis is appropriate and that a local 

45 air quality modeling analysis is not needed, the total of direct and indirect emissions from the action meet the 

46 requirements specified in subsection B of 20.2.98.113 NMAC, based on areawide modeling, or meet the 

47 requirements of paragraph (5) of subsection A of 20.2.98.113 NMAC; or 

48 (5) For ozone or nitrogen dioxide, and for purposes of subparagraph (b) of paragraph (3) and subparagraph (b) of 

49 paragraph (4) of subsection A of 20.2.98.113 NMAC, each portion of the action or the action as a whole meets any 

50 of the following requirements: 

51 (a) Where US EPA has approved a revision to an area's attainment or maintenance demonstration after 1990 and the 

52 Department makes a determination as provided in item (i) below or where the Department makes a commitment as 

53 provided in item (ii) below. 

54 (i) The total of direct and indirect emissions from the action (or portion thereof) is determined and documented by 

55 the Department to result in a level of emissions which, together with all other emissions in the nonattainment (or 

56 maintenance) area, would not exceed the emissions budgets specified in the SIP. 
Proposed Repeal of 20.2.98 NMAC 9

1 (ii) The total of direct and indirect emissions from the action (or portion thereof) is determined by the Department to 

2 result in a level of emissions which, together with all other emissions in the nonattainment (or maintenance) area, 

3 would exceed an emissions budget specified in the SIP and the Governor or, if appropriate, the Governor's designee 

4 for SIP actions under State law, makes a written commitment to US EPA which includes the following: a) a specific 

5 schedule for adoption and submittal of a revision to the SIP which would achieve the needed emission reductions 

6 prior to the time emissions from the Federal action would occur; b) identification of specific measures for 

7 incorporation into the SIP which would result in a level of emissions which, together with all other emissions in the 

8 nonattainment or maintenance area, would not exceed any emissions budget specified in the SIP; c) a demonstration 

9 that all existing SIP requirements are being implemented in the area for the pollutants affected by the Federal action, 

10 and that local authority to implement additional requirements has been fully pursued; d) a determination that the 

11 responsible Federal agencies have required all reasonable mitigation measures associated with their action (as a 

12 matter of Department policy, a commitment will be made only if the Department determines that the project 

13 sponsors and responsible Federal agencies have sought all available emissions offsets and made all reasonably 

14 available modifications of the action to reduce emissions); and e) written documentation including all air quality 

15 analyses supporting the conformity determination. 

16 (iii) Where a Federal agency made a conformity determination based on a Department commitment under item (ii) 

17 above, such a Department commitment is automatically deemed to be a call for an implementation plan revision by 

18 US EPA under section 110(k)(5) of the Federal Act, effective on the date of the Federal conformity determination 

19 and requiring response within eighteen (18) months or any shorter time within which the Department commits to 

20 revise the SIP; 

21 (b) The action (or portion thereof) as determined by the MPO is specifically included in a current transportation plan 

22 and transportation improvement program which have been found to conform to the SIP under 20.2.99 NMAC 

23 (Conformity to the State Implementation Plan of Transportation Plans, Programs, and Projects). 

24 (c) The action (or portion thereof) fully offsets its emissions within the same nonattainment or maintenance area 

25 through a revision to the SIP or an equally enforceable measure that effects emission reductions equal to or greater 

26 than the total of direct and indirect emissions from the action so that there is no net increase in emissions of that 

27 pollutant; 

28 (d) Where US EPA has not approved a revision to the relevant implementation plan attainment or maintenance 

29 demonstration since 1990, the total of direct and indirect emissions from the action for the future years (described in 

30 subsection D of 20.2.98.114 NMAC) do not increase emissions with respect to the baseline emissions, and: 

31 (i) The baseline emissions reflect the historical activity levels that occurred in the geographic area affected by the 

32 proposed Federal action during: a) calendar year 1990, b) The calendar year that is the basis for the classification 

33 (or, where the classification is based on multiple years, the year that is most representative in terms of the level of 

34 activity), if a classification is promulgated in 40 CFR part 81, or c) The year of the baseline inventory in the PM10 

35 SIP, 

36 (ii) The baseline emissions are the total of direct and indirect emissions calculated for the future years (described in 

37 subsection D of 20.2.98.114 NMAC) using the historic activity levels (described in item (i) of subparagraph (d) of 

38 paragraph (5) of subsection A of 20.2.98.113 NMAC) and appropriate emission factors for the future years; or 

39 (e) Where the action involves regional water and/or wastewater projects, such projects are sized to meet only the 

40 needs of population projections that are in the SIP, based on assumptions regarding per capita use that are developed 

41 or approved in accordance with subsection A of 20.2.98.114 NMAC. 

42 B. Either the areawide or local air quality modeling analyses, or both, must: 

43 (1) Meet the requirements in 20.2.98.114 NMAC; and 

44 (2) Show that the action does not: 

45 (i) Cause or contribute to any new violation of any standard in any area; or 

46 (ii) Increase the frequency or severity of any existing violation of any standard in any area. 

47 C. Notwithstanding any other requirements of this section (20.2.98.113 NMAC), an action subject to 

48 this Part may not be determined to conform to the SIP unless the total of direct and indirect emissions from the 

49 action is in compliance with or consistent with all relevant requirements and milestones contained in the SIP, such as 

50 elements identified as part of the reasonable further progress schedules, assumptions specified in the attainment or 

51 maintenance demonstration, prohibitions, numerical emission limits, and work practice requirements. 

52 D. Any analyses required under this section (20.2.98.113 NMAC) shall be completed, and any 

53 mitigation requirements necessary for a finding of conformity must be identified as being in compliance with 

54 20.2.98.115 NMAC, before the determination of conformity is made. 

55 [12/14/94; 08/02/96; 20.2.98.113 NMAC - Rn, 20 NMAC 2.98.113 10/31/02] 

56 
Proposed Repeal of 20.2.98 NMAC 10

1 20.2.98.114 PROCEDURES FOR MAKING CONFORMITY DETERMINATIONS OF GENERAL 

2 FEDERAL ACTIONS: 

3 A. The analyses required under this Part shall be based on the latest planning assumptions. 

4 (1) All planning assumptions shall be derived from the estimates of current and future population, employment, 

5 travel, and congestion most recently approved by the MPO or the Department. Planning assumptions may include, 

6 but are not limited to, the following: per capita water and sewer use, vehicle miles traveled per capita or per 

7 household, trip generation per household, vehicle occupancy, household size, vehicle fleet mix, vehicle ownership, 

8 wood stoves per household, the geographic distribution of population growth, and current and future population 

9 estimates. 

10 (2) Any revisions to these estimates used as part of the conformity determination, including projected shifts in 

11 geographic location or level of population, employment, travel, and congestion, must be approved by the MPO or 

12 the Department. 

13 B. The analyses required under this Part must be based on the latest and most accurate emission 

14 estimation techniques available as described below, unless such techniques are inappropriate. If such techniques are 

15 inappropriate and written approval of the US EPA Region 6 Administrator is obtained for any modification or 

16 substitution, they may be modified or another technique substituted on a case-by-case basis or, where appropriate, 

17 on a generic basis for a specific Federal agency program. 

18 (1) For motor vehicle emissions, the most current version of the motor vehicle emissions model specified by US 

19 EPA for use in the preparation or revision of implementation plans in the State or area must be used for the 

20 conformity analysis as specified below: 

21 (a) The US EPA shall publish in the Federal Register a notice of availability of any new motor vehicle emissions 

22 model; and 

23 (b) A grace period of three months shall apply during which the motor vehicle emissions model previously specified 

24 by US EPA as the most current version may be used. Conformity analyses for which the analysis was begun during 

25 the grace period or no more than three (3) years before the Federal Register notice of availability of the latest 

26 emission model may continue to use the previous version of the model specified by US EPA. 

27 (2) For non-motor vehicle emissions sources, including stationary and area sources, the latest emission factors 

28 specified by US EPA in the "Compilation of Air Pollutant Emission Factors (AP-42)" shall be used for the 

29 conformity analysis unless more accurate emission data are available, such as actual stack test data from stationary 

30 sources which are part of the conformity analysis. 

31 C. The air quality modeling analyses required under this Part shall be based on the applicable air 

32 quality models, data bases, and other requirements specified in the most recent version of the "Guideline on Air 

33 Quality Models (Revised)" (1986), including supplements ( US EPA publication no. 450/2-78-027 R), unless: 

34 (1) The guideline techniques are inappropriate, in which case the model may be modified or another model 

35 substituted on a case-by-case basis or, where appropriate, on a generic basis for a specific Federal agency program; 

36 and 

37 (2) Written approval of the US EPA Region 6 Administrator is obtained for any modification or substitution. 

38 D. The analyses required under this Part, except paragraph (1) of subsection A of 20.2.98.113 

39 NMAC, must be based on the total of direct and indirect emissions from the action and must reflect emission 

40 scenarios that are expected to occur under each of the following cases: 

41 (1) The Federal Act mandated attainment year or, if applicable, the farthest year for which emissions are projected in 

42 the maintenance plan; 

43 (2) The year during which the total of direct and indirect emissions from the action is expected to be the greatest on 

44 an annual basis; and 

45 (3) Any year for which the SIP specifies an emissions budget. 

46 [12/14/94; 08/02/96; 20.2.98.114 NMAC - Rn, 20 NMAC 2.98.114 10/31/02] 

47 

48 20.2.98.115 MITIGATION OF AIR QUALITY IMPACTS: 

49 A. Any measures that are intended to mitigate air quality impacts shall be identified (including the 

50 identification and quantification of all emission reductions claimed) and the process for implementation (including 

51 any necessary funding of such measures and tracking of such emission reductions) and enforcement of such 

52 measures shall be described, including an implementation schedule containing explicit timelines for implementation. 

53 B. Prior to determining that a Federal action is in conformity, the Federal agency making the 

54 conformity determination shall obtain written commitments from the appropriate persons or agencies to implement 

55 any mitigation measures which are identified as conditions for making conformity determinations. Such written 
Proposed Repeal of 20.2.98 NMAC 11

1 commitments shall describe such mitigation measures and the nature of the commitments, in a manner consistent 

2 with subsection A of 20.2.98.115 NMAC. 

3 C. Persons or agencies voluntarily committing to mitigation measures to facilitate positive 

4 conformity determinations shall comply with the obligations of such commitments. 

5 D. In instances where the Federal agency is licensing, permitting or otherwise approving the action of 

6 another governmental or private entity, approval by the Federal agency must be conditioned on the other entity 

7 meeting the mitigation measures set forth in the conformity determination, as provided in subsection A of 

8 20.2.98.115 NMAC. 

9 E. When necessary because of changed circumstances, mitigation measures may be modified so long 

10 as the new mitigation measures continue to support the conformity determination in accordance with 20.2.98.113 

11 NMAC, 20.2.98.114 NMAC and 20.2.98.115 NMAC. Any proposed change in the mitigation measures is subject to 

12 the reporting requirements of 20.2.98.110 NMAC and the public participation requirements of 20.2.98.111 NMAC. 

13 F. Written commitments to mitigation measures shall be obtained prior to a positive conformity 

14 determination and such commitments shall be fulfilled. 

15 G. After this regulation is approved by US EPA, any agreements, including mitigation measures, 

16 necessary for a conformity determination will be both State and federally enforceable. Enforceability through the 

17 SIP will apply to all persons who agree to mitigate direct and indirect emissions associated with a Federal action for 

18 a conformity determination. 

19 [12/14/94; 08/02/96; 20.2.98.115 NMAC - Rn, 20 NMAC 2.98.115 10/31/02] 

20 

21 20.2.98.116 SAVINGS PROVISION: The Federal conformity rules under 40 CFR part 51 subpart W, in 

22 addition to any existing applicable State requirements, establish the conformity criteria and procedures necessary to 

23 meet the requirements of section 176(c)of the Clean Air Act until such time as this conformity implementation plan 

24 revision is approved by US EPA. Following US EPA approval of this revision to the SIP (or a portion thereof), the 

25 approved (or approved portion of the) State criteria and procedures would govern conformity determinations and the 

26 Federal conformity regulations contained in 40 CFR part 93 would apply only for the portion, if any, of the State's 

27 conformity provisions that is not approved by US EPA. In addition, any previously applicable SIP requirements 

28 relating to conformity remain enforceable until the State revises its SIP to specifically remove them and that revision 

29 is approved by US EPA. 

30 [12/14/94; 08/02/96; 20.2.98.116 NMAC - Rn, 20 NMAC 2.98.116 10/31/02] 

31 

32 20.2.98.117 FEDERAL DOCUMENTS: Federal documents cited in this regulation may be viewed at the 

33 New Mexico Environment Department, Air Quality Bureau, Harold Runnels Building, 1190 St. Francis Drive, Santa 

34 Fe, New Mexico [2048 Galisteo St., Santa Fe, NM 87505].] 

35 

36 HISTORY OF 20.2.98 NMAC: 

37 Pre-NMAC History: None. 

38 

39 History of Repealed Material: [RESERVED] 

40 

41 Other History:

42 20 NMAC 2.98, Conformity Of General Federal Actions To The State Implementation Plan, filed 11/14/94 was 

43 replaced by 20 NMAC 2.98, Conformity Of General Federal Actions To The State Implementation Plan, filed 

44 06/19/96. 

45 20 NMAC 2.98, Conformity Of General Federal Actions To The State Implementation Plan, filed 06/19/96 was 

46 renumbered, reformatted and replaced by 20.2.98 NMAC, Conformity Of General Federal Actions To The State 

47 Implementation Plan, effective 10/31/02. 

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 of each teclmical witness. 

Ms. Gail Cooke. Gail Cooke is an Environmental Planner in the Control Strategies 

Section of the 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 Chief of the Planning Section of the Air Quality 

Bureau. She has more than 20 years of experience 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 of each witness In narrative form. ( 

A copy of the direct testimony of Ms. Cooke is attached as NMED Exhibit 8. Ms. Cooke 

will provide a brief summary of her 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 of the 

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 of Rita 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 of publication of hearing notice 

NMEDEx.8 Written Testimony of Gail Cooke 

NMEDEx.9 Proposed Statement of Reasons and Order 

6. Reservation of Rights 

This Notice of Intent 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 of intent 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 and Regional Planning, Cancenfl'allon: Environmental Planning, Virginia 

Tech, Blacksburg, Virginia, 1998 

Major Project: The Implementation of Virginia Erosion and Sediment Control Laws and 

Regulations. 

Bachelor of Environmental Design, Texas A&M University, CAJ/lege Station, Texas, 1995 

Other areas of study 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 of emission 

inventory updates and maintenance plans for the State Implementation Plan submittals; 

development of local 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 of open 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, and Project Management 

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 of the seven awarded 

grants. As a project manager for these awarded grants, I have been responsible for most 

budgetary and contractual related activities. 

Plan and Regulation Development 

Developed and authored several federally mandated plans on various air quality issues 

throughout New Mexico. 

NMEDExh.1 
Assisted in the development of the 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 of Farmington, NM, Aztec, NM, 

and Bloomfield, NM; San Juan County, NM; the State of New Mexico; and the US 

Environmental Protection Agency. Job duties included plan development, preparation of fact 

sheets and other infonnational outreach material, the planning of open 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 

of emission inventory; adoption of plan; public outreach, and testifying before the Environmental 

Improvement Board. 

Acted as the lead in the adoption of revisions to 20.2.99 NMAC - Conformity to the State 

Implementation Plan of Transportation Plans, Programs and Projects. The revisions to 20.2.99 

NMAC were in response to amendments made to the federal rule 40 CFR Part 93 -Determining 

Conformity of Federal Actions 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 of 20.2. 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 of this 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/Anafyst IV, Reno Office Coordinator/Manager, Ju!J 1994-]11/y 1996 

Enviroll11rtnta/Anafyft Ill, ]tlfl1993-]11!J 1994 

Enllironmenta/Analysl I, June 1990- July 1993 

As the manager of the 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 
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[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 ...epm W, 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, 19941 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) ef lheprepeeee Federal .. tie&. 

Proposed Repeal of20.2.98 NMAC NMEDExh. 3 1 
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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. 11CFiteria 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 ef a 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 ef sueh 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 J1f97JisieBB; 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 ef the 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 peri ad iB ~:~aestiea if the . . ~ ' 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 of 20.2.98 NMAC 2 

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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 of the 

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 ef a 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 3 01 (Ei) of !he Federal Aet BBII whlolt 

implements the relsvast reetuiremeats ef the 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 11net" 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 emissiees11 , eneeptas 

Proposed Repeal of20.2.98 NMAC 3 
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pre"lided ill sullseeliea H ef 20.J.98. I 08 NMI-.. G. l=he "total ef dire at 8Bd: isdkeet emissieBB" illehtdes emissieas ef 

efiteAa pellutaeY aad emissieBB efpneQI'SBf8 ef efHeFia 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 a aensttsinmeet er 

maiateRftBee BFea e&Qsed 8y a Fedeml aeHaa weuld elfUBI er e1Eeeed BBf eftke rates iB subsesHaBB G er 'Q ef 

29.2.98.197 NMI£. 

c, Fer purpeses ef9lll1seetieaB ef1Q.i!.98.1Q+ m"-'\G, tlie felle¥1iBg rates apply ia aeaauaiameet 

D, 

Pelluklnt 

Qee&e (V{)Cs er ~lOll): 

SerieBS }JAr\& 

Set.rere Nl .... "-.. s 

Extreme }J...'\.t\5 

Other ezese Wa:a'\s e&i:ide as ee:ese tfassperl regie& 

~lafgisalasd medeFMe }k\:l~ iBside as Bi!5BBB 

tfeflspeFl regies 

¥QC 

NQ< 

CarJ,ea meseJtide: t"dl }J...~~ 

SQ2 er NQ2: AlHb'.AB 

PMW; 

~fedef6te }Tla:a'\s 

Serious WJ\s 

Ph: ,'\11 ~b'n'\s 

TeBBIYeBf 

Fer JNifJBS88 efSH8seetiea H ef2Q.2.98.197 NMAC, the fallewtsg f8tes apply iB maiatesa&se 

Pelltil!mt 

OBese ~T<Rij, 802 er N02: .Ylmaift~eaoeee at=eM: 

Qoe&o (VQCs): 

~faiRtesasee areas iBeide 8ft e:Be&e tFanspeft Jegies 

}.faiMBBasee areas eutside BB e:Bese tfasspeft Fegiea 

C&Fhea :meaetide: .. "Jl meh~eBBP:ee ueas 

PltflQ: .Yl mairtesaase areas 

Ph: t.Ylm&iateaaaee areas 

TeB!iiYear 

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lO,l-98.108 

;\, The re~Hiremeats efthis Pert sftell aet ~J:Ilr te: 

(1) Aetiens where the ~etal ef elireet and iRdiree~ emissiees are belew the emissieBB levels SJ!ee:ified iB Sl!Bseetiea IJ 

enQ.2.98.1Q7 mY£; 

(l) The felle'.viRg aetieBS whish weY:ld f86tllt iR as emissions iBsrease er an ifterease ia emissieBB t:Bat is eleBfly de 

mieimis: 

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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 

aad epeRties te ast:PJities elH'I'tHHI.y beisg se&dueted. 

Ee) Rule=sNng aad peliey develepmeat aad is81:18Bee. 

(d) ReHtise =eiateseaee ed repaif aeWiities, iBeludbg •epair aad md=teannee efadmidMratiYe sites, Fe&d8, tmiiB, 

aBEl Hleilities. 

~ Civil asd eriminn' esfereemeat aetPJ:ibes, welt as iBve!HigatieBB, aallim, isspeeHeBS, BJ£sminatieDB, pfesee\HieDB, 

ed die 11'a;rhg ef law e&fereemest perseBBel. 

ff} a"Amic;stmH·ve aetieBS sueh as pHBBBBel astieBS, ergaaiMtieaal ehaages, deht msragemetK er eelleeHea, ea&h 

-snsgemest, imefB81 agesey audits, pFegHfll 'eudget J'fBpesals, &Bd mattm FBlatiDg te the admi&istfatiea 8ll(f 

eelleeHea efmes, tkWes aa8 fees. 

(I} 'llle re\Hiae, FB&W'f'isg tRlBSJ'BftatiBB efmaterial8114J peFSBBBBI. 

{It} Ral:lti:se meveme&t efmellile BBeeiB, sueh as ships 8lld aireraA, iB heme pert reassigz eats ed stMieas {¥.rhea 

ae Bl!l'tTJ supJieft faeilities er peFSeBBel&fe AUt\lire~ te )JeHerm as eperatieaeJ groupe 8Bdlef fer repairer e"!efita\ll. 

(i) Jo{&iBtesanee &redgiBg BBd deBF.is dispesal -.;here sa &ew dept&s ll:fB HlfYil'ed, appliealde peArtits B:fe se61Hed, asd 

dispesal·nill he at as appre"Jed disposal site. 

fj} '.V:itll respeet ~ existisg stA:le&ifes, preperties, faeilities aBEl IBBds 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 aiHI mdrtesaaee seat 8\!hsidies; tlte exereiae ef 

reeePISrship er eeBSewatemhip authority; assistasee iB purellasiBg MNetllfes; BBd the preduetiea ef eeiss aad 

eurresey. 

{k} Tlie gF&BtiBg efleases, lieesses sueh 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 ad perseBB::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~ aelieBS regafdiag 

eh:at=tee, appliea1:ie&S, aeSees, lieeBBes, !he SH.peR'isiea er M:a=iosUes efdepesitery iBstimti:eBS er d:epesitepY 

iastitu1:iea heldi:ag eempBBiesJ aeeess te tfte disee11Bt wiade-.r:, er tile previsies effirsseialset=\'iees te hBBIEiBg 

erganizatieBB er te aay deparimem, agesey er iastr&meRte:lity efthe lJBited Sates. 

(II) AetieBB ~y the :ReuS efGe7JeHlBf8 efthe Federal Resef\'8 System er BBf PedeRI Rese.ve SanJ£ te atieet 

meaelafy er enehtmge Hte peliey. 

(F} Aetie&s that implemest a fereigs affa:ifB imeties efthe l1Bited States. 

(8) AetieBB (er pe:AieBS thereeij asseeiated with tHBBfefB ef 18BdJ faeilities, tide, aad real prep aRies dueugh BB 

eafeRSea~le se&tfaet er lease agt=eemeat where tlte deli·lef)' eftfie deed is 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 Mul where die FedBFB:l 

agBRey dees set retaia eeBtis.uiBg authority te ee&tfel emiesieBB asseeiated "'rftlt the lands, faeilities, title, er fe&:l 

preperlies. 

ft) TmBSfeH efreal p:Feperty, i&eludisg Jane, faeiHHes, BBd relaled peFSeB&l prBJ"efty frem a FedeFel eatity te 

B:Rether Federal eetiey BBd aesigeme&ts efreal prepeHy, iasludmg lBBd, faeiliHes, aad nlated peESeBB:l prepefty Hem 

a Federal eetity te aaethM Pedeml etHity fer StihseEJ&e&t Eieediag te eligiBle '*plieaats. 

(u) AetieBB By the l>epBftmest efthe Tfeas""'· te affeet fiseal pelier BBd te enBFei&e the Bef:Fewisg authority efthe 

Ysited States. 

(a) AetieBB wlt:e.re the emissie:BB aA!I set reasesal:lly foreseeable, SHah as the felle¥rrisg: 

(~ lsitial Gater Ceati&eatslShelfleB:Se sales V\rhieli He made en a hread seale asd aFB fellev~ed By &JEpleratien asd 

develepmeat plBBB en a prejeet level. 

(IJ) Blesttie peYFef marketisg aetivities that ifl:r:!elve the aefttiiBitie&J sale BBd tfansmissiea ef eleettie eneFgy. 

(4) lsdPJ:idual 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 BeBB: ielHld 

te 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): 

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aew -• <e•A.w: (N8R) pr&lJIIIIB (ileeliee 173 efll!e FolleNL.,.,I) erlBepre\ eeliee efeipifisMit doloriefelieol 

(P!ID) prep- (Iillo!, put() eflhe li'edllflll ,•..et). 

(3) l·.tetieas ie tesp&B&e te emetpeeies e£ tulfurel disastefs su.eB H JmH:ieaaes, BBfthJEm'mo, eHs., 7Mtieh fi:N 

eemmooeeel ea th& etder efheurs er Elays aftef die emeFge&S)· er disaster end, ifapplieahl&; witish meetihe 

requH<omOBI!i efsubsesliBB C ef29.2.98.1Q8 NMAC; 

(l) Res!Uitvlt, iaveatig&e881 st&Sies1 demlHJB&Hieae, or U:sbigg (etker than diese eM:mpted tllider paRlgpaph ~ ef 

sHseeBes •• .. af2Q.3.98.1Q8 •tt&Aq 'WlieH ne erJireBI!IeBtal tiett:imeBt i6 ieelUHd aod.ler the putieular aetie& 

fwthBf'S air EIU&Jfty rese~ as detw: is eEl hy tJJe ~epa$Be!H; 

(4) Allef&liee aed addi!i911ft af &Jiisliftg s!Nelllfes as speeifietily ""l"ifeli hy ewer o11iolillg "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 aetieBS eEHried aut umlv die Cempreheaeive &i;rife!Jmeatal 

R•epeeso, Cempei!Satiea aed Liaeilily het (C~,) Olld Mseeiatea flglllalieas te !he niM!t Sllok emiesiees eiiller 

eem;Fl,· witllthe Mstauttve re~me afthe PSDINSRJemtHti:Bg p¥GgRtB er ue M:empte4l ffem atller 

eAIJif=s meatal HgUtatiaa uader die p191ieieB& efcmtCLA: aail applieahle HgUtatiasa iameEi liBEler cmt.cu ... C. Federal aetieM raSH e:r:e part efa eSBtis"iag 1espeBBe te aa etBeFpaey er tlisnster &eleF 

pamgmpl! (~ efSIIheee!iee B e€29.2.98.198 NMI.C aed vmiok..., le l'le te.l!!e. mereth· sill manti!& after !he 

ee~B~Bensemeet eftke M&psue Ee the em8f8BM)' er disaster\tflSerpatagzapk(~ efsuBsestieaB ef20.288.1Q8 

NMAC ...., OIIO&pt m.m ll!e re'f!liremeelii eflloie -aell (ljj.2.98.108 NMI'-'4 ""'Y iP. 

(I) TBe l'edemlagesey ta~aae the aeliau ,±s a~ de&ermi"rie dlaq fM' a speeified peR:ail eat te eJEee e d a 

aelditiesal six meeths; it is impmeHeal te PFB!'&re the ee&letmity srdyses 'WMh "Weit:ild etkeFNise Se :FeE(BiNd aBEl 

_ae aetiee elliHlet he delayed due t6 eveJ'fidisg eeaeems fef tnt9lis heahk a&El weJHre, uaHeBS:l.seewit;r iat~ 

BBd feHip pel!ey e emmhmema; 9f 

(l) Fer aatiess r.wish are te he talEs after these neft9tis eeveNdll}·pBHgtaph (1) 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. 

D. NewAiltslaadiag elhar requifomalllli eftl!is Pill'!, ~ aeliees ar el118ses ef a<~liaes spaeifiad 

hy iBIIh•isYBI federal ageaoieo ll!at II!MI matll!e Ol'ileria sol f<lf!il iB eiiller pamgmpll (I) er (~ ef subsoeliea Iii ef 

29:2.98.1Q8 NMl£ 8IMl the pFeeeftres setfeftlt iB eu9see:tieB F e£~0.2.98.108 NMhC ue JUe&\UBE!ti te eettfsrm, 

&lleept as pre· Ailed iB sal!seoliea H e€29.2,98.1 98 NMAC. 

E. The HSmt:l&~eaey +all meet the etitefla faF estaBJishiftg utivit:ies d1at ue presumed te eeufefiB 

ey fillfimsg ll!e ""lUHoiBelllli set fer!~! ill eilher pamgmpl! (I) er (2) efsllllseeliea Iii ef~.:M8J 98 Nl>IAC: 

(1) The Federal ageaey shaH e1early demassRM! usi~Ja mathed!J eeBBisteat %tidt dliB PaR dlat die tetel efeireet as4 

is direet emissieDS Rem die type efaeti·fflies whieh weuld lJe pN?JmNi te eeafeaa would :aet: 

(a) Ca\ISe er e~te le aay tUWl 1Aela1iea efey stadartl iB ey Bl"M: 

00 let: rfse yJith pHAtisie&& ia the SIP fer mabttnanee afaey staada£4.; 

sllllsae!iee Iii ef21l.2.98.198 NM1'£,11!e &llewiBg preeodsres- aloe l>e eemplied will! le pMSIIIBOII!at aeli>Ji!leo 1

t"Yill eeftfarm: 

(1) 'Tho Fedof!li "ll"""Y sl!o<l ideeli£}< lhre&gl! plllllioeliee ill ll!o Feds<al Register ilB till! efprJI!Iased .oowieell!et 

llM pwaumeEl te eenfeHB fl!l6 the eralysis, esump!iens, emis&ieas faeters, BBEl sriteria ased as die BulB far the 

pntFrmpUeBS; 

(:1) 'FI!a Fed e...! &g81lGy shallaatiJY ll!e U:S iiPA Raglan e Qftlee, ll!o Pepiii'IIBellloeoi, wlleFo JII'PiiE!Bhle,ll!eageBey 

det~ignated ooder seeHen174 efdie lite*; ell die MPO; 

(3) Tlte Fedenl ageRaf shall &ee:amtmt ita resp&&Se te all die e9mmenta teeeiwd aad m&l£e tile eetBmeBts, teSJleBfie, 

aad: f.iezllist efaativitiea e?ra:ilalde te the JKiDlie apes retiuesti aud 

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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 ef Heat &REI bdiroet emissi9B6 

efaay peUuta&t from a Pedeml ae"-ea dees aet ectuel er eJleeed ike rates speeifietl ia auhseetiea R ef1Q.1.98.107 

)Q'Ia'\C, \nil HpF888Bt8 tee pereeat BF &leN efa BBBBU&iBme&t BF Te;,,OFSZPe 81'8&18 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 l:I:Bder NBsee9:e& B e£29.2.98.198 )Q.I.AC 

dees aet iB faet meet eae eHBe eFNBfi8 is pBHgfBph (1) efBHhsesties B ef2Q.2.98.108 NM;.'\-C, dtat asHes shall set 

J,e eeBBidered te he de mhimis er preen 8 te ee&:feRB 8IHi tBe n'fUH=eme!He ef2Q.2.98.2 NMi' .. 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 Part, as deteAB:itled WidBf this 

seeties fl0.2.98.108 m.I! .. G), BN&t re&Yk ill 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 {iBel111 irg the 

ideatifieatiea &d '!llastifieati:ea efall em:issies :reduetie£8 eb'msd) aB4 tlie Jreeess tar implemeataHea €isebdirg 

8BY seeessary !W:adirg efSBeh measllfeS asS tfaekiBg efsueh emiseies ndue&e~ 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& 

GBFSitJBeats 1femlfte Bpprepfiate 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 ef the eemm;tme&t; ia a -serer eeBSistBBt with the pfelflieus seateBse. After tM8 Part is BfiPFe ;ed by US 

~·.., BBfereeaBility threugh die gJII ef aay measures aeeess&!Y fer s Eletl!l b'ties efapplisaSility will apply te all 

perseBS -.-Ate agree te N&ee Elireet aad iBEiiHet emissieBS asseeiated with 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 ef BBethB£ 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 sf the 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 pull lie eemmeot pFiar te 'aNrg &BY feHB8l astian sa the dmft 

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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 af direst aa4 iad!Het emissions &em the aetiea, the as tie& meets the RJEtllirements ef Sllltseetia& 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 ef Sireet 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 ef that 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) \1Jftere 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 7ysis 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 

ef tke 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. 

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fii) The tetal ef difeet 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 ef a revisiea te 1:Be SIP whieh wet:Hd aehie"le the aeeded emissies adll6tieBB 

prier te the time emissiees &em the Fe den! aeUes YJeuld eeBU!'; h) ideutifieaties ef speeifie 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 ·::ill he made ealy if the 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, if a 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 regie sal 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 7Jiitk 

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 

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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 ef N'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 siHfts is 

geegHpiHe leeali:ea er le·;el of pepulatiea; emple3'me&t, tfa'IBl, 8Bd eeagesHea, BNst Se &JipFe ••ed liy tke M;PQ er 

tile DepB:ftmeat. 

B. The snal)'fiSS fSt]:l:!ired liBEler tBiB Part IBIHit he hased BB the latest B!Hlmest aeeumte emissiea 

estimatiea teelmi£t1:leB available as deseribed bele·.v, UB:less sush leslmiEfUes..., iBapprepFiate. Ifsueh teelmilll!eS 11M 

isapprepfiate &Bd wfittea appre"l&l eft:lte YS BPf_. 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 apprepfiate, 

ea a geaefie has:HI fer a speeiie Pedeml agessy pregram. 

(1) Fer meter -;eJHele emissieBS, the mast &\H'!'eat 'ts !lf&iea ef tile meter velliele emiflsieBB me del speeified h~ US 

BPl. fer use ill the prep&Rltiell er revtsiea ofimplemeJHatiea pl&BS is the State er area must be us eEl fer the 

eaBfeHB:ity BB8eysis as speeified helew: 

(a) +he US ~-shall publisk iB tlte FedeEAI Ri!gist& a &elise efwJailaltility efasy new meter •;ehiele emissieas 

medel; &Bd 

(h) A graee period of t&Fee me&tlts shall app~·dwisg ·shish die meter veiHele emissieBS me del pre:JieYBly speeified 

by YS JiP-.l .. as tlte mast BWHBt T;•Bf9iea may be used. Se&feflllily srsJyses fer whish lke srs'ysis 'H88 begYF: Elwiag 

tBe graee period or &e mere *or tltree fa) years befere the Federal Register aetiee efavailability of the latest 

emissies me del may eefttimle te \188 the previeus vemios efthe me del speeified by US BPl-. 

{1) Fer sea meter vehiele emissieBS sellfSes, is:ekuliBg stMie&My &Bd area seBFees, die latest emissieo faetOFB 

speeified by US BPl.c iB tlte "Sempilatiea ef .. '\ir Polllltaot Bmissiea FaeteFS (AP 42)" ±n" he lHIBd fer the 

eeBfermity BBalysis usless mere aeeurete emi88iea data are available, sueh as aetsal stask test data frem s&alieBBfY 

sellfSes whleh &Fe par-t eftlte eeafeABi~ sna'ysis. 

G. Tile air EtUBli~y medeli&g BB&Iyses re£taired l:Hlder tltis PaR sbs11 Be based os tke a_pplisable aH' 

116~· medels, data bases, MUi ether requiremeats speeified ill tlte mast reeest venies efthe "Guide'iBe os .w 

Quality t-ledels (R.wJised)" (198~, iaelvdisg BUJ!plemeBts (US 82A publieatie& se. 4~9l2 78 ~7 R), BBleSB: 

(1) +he gllideli&e teelmi£tl:li!S aFe irnpJirepriate, is wJHeh e&Be die medel may he medified er 8Bether me del 

=stimted ea a ease hy ease basis er, -.r. here a_pprepfiate, BB a geserie Basis fer a 91ieeifie Pederal agBBey pregmm; 

(l) \~lAtteR appFer;al of the TJS "SPA R-egiea 6 A 4 =histrat9f' is ehtai&ed fer BBY medifieatiea er suhstiktties. 

D. +he sns'yses re£t1!H=ed: usder tltis Par., MBBjJt pBAlgraph (I) efs&bseetiea A of29.2.98.113 

)'JJ.lAoC, mast be l!!ased ea tfte tetal ef direst BBd isdir-eet emissiess Hem the a sties and IBHSt Fellest emissiea 

seeoafies that are ~ested te eesur eder eaeh efthe felle\·Jiag eases: 

(1) The Fedeml l":et mandated rrtlais-est year er, ifapplieable, the farthest year ier wlHek emissiess 8RI prejeeted is 

tke maiateseee piBB; 

(lj 'Hie year oluriBg whieh !he tetal efttireet BfiB iB<Iifeet omisoieBB ffem the ae!ie& iB •"!'••ted te be !he greatoot e& 

as BB:Bual basis; and 

{3) k¥j year fer YllHeB the SIP speeifies aa emissieBS l!!udget. 

[12114194; Q8mt96; 29.2.98.114 M.f:t"£ Rn, 29 }TJ.4;\C 2.98.114 IQ£3l!.(J2] 

]9,],98.11§ l\'IITICATIQN Ql' .\IR Qlk\I.ITY Jl\4ll;Y;TSI 

;t·_.. ."ray measures that are iBteBdeti te mitigate air E{Ual:iey impaets sftall be ideatified (iseludisg tBe 

ideetifieatie& a&d Et\:l8:B:HfieatiBB efell emiflsie& redusliieBB elaime~ anQ the preeess fer implemeatatie& (iBelu1 isg 

aay aeeessary fi1sd;rg ef!Mleft measwes esd traelii&g efsueh emissiea Feduetieas~ BB6 enfereeme&t efsusft 

mea&UR!s shall be Seser:ibed, iBeludisg ar. implemeatatiea selledule eeataisisg eHplieit timeliaes fer im.plemestatiee. 

B. PF.ier te detemHn:isg that a Federal aetiea is iB eeefermity, the Federal ageaey =O'dsg die 

eeafermHy determinstiea shall abtai& yJFiUea eemmitmests fFem tfte a:pprepr:iate peE6ens er ageosies te implemBDt 

a&y mitigcHies me&BlJ:I:eS wltieh m:e idee&ified. as eeatiitieDB fer makiag eeafetmi~· d:eter irstieBS. Sueh v..mtee 

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ee=mitme&ts shall desefi8e sueh mitigaHes 81BB8\H'BS liBEl die satu.N eflhe eemmitm:e&ts, ill 8 "?SEer BBBRistest 

VJit:k subseefies A ef2Q.2.98.11S NJ.~l£. 

(i, PerseBS er ageaeies vehm*crily ee==itb&g te mMig&ftes me88Yfes te YeiiHMe pesHiw 

ee&feRBit:f dehm::irntiBBS shall eemp)ywith:the e1digat:iBB8 Bflftleft eezmitmeets. 

D. Is iMtas:ees wlleFe the Pedeml agesey is lieeBBiBg, petmitt:iag er e!ftefWise appreviag die aetiea ef 

aaet:her ge";emmemel er pt=i·JMe eJHHy, appre lei by die Federal agesey JBliSt he. eea4itieMd en the ether emity 

meeti&g die mitigat:iea measures set feftft is lhe eeDfemH~ detmtdnotiea, as pt=evided iB euhseeties A ef 

2Q.2.98.1 u mY£, 

E. 'Nhea aeeessBFf beeaBSe ef ehauged eir&umstaaees, mitigatia& me&SUI'es may 'ee medified sa lesg 

8B the &8'11 mitigM.iea meastif'BB eeiHiaue lB suppeR the eesfeRB:i~ detemiasQea iB aeeerdiB:ee -,;Hh 29.2.98.113 

m.IAC, 29.2.98.114 NJ.It'\C &Bd 29.2.98.113 mu£. ABy prepesed *sage iB the mltig&t:ie& IB8115Bf88 is saBjeet te 

die FeJ'BfliBg re(fU:ifemeats ef2Q.2.98.11Q ~~lAC ad the p\!I:Jiis partieipatie& requifemeDts ef2Q.2.98.111 )Diii'\C. 

F. WFittea ee==;-.eets te mitigafte& measures sftalll:te el!tai&ed prier te a positive eesfermity 

detem,;a,liea aRd welt eeBHBitmeDts shall he fulfilled. 

G. 1\....t:g,r this regalatie& is appFeved l:ty YS BP-A, aay &gFeemeuts, iBeludla:g m:M:ig:Miea measw:es, 

aeeessary fer a ee:&feHIIHy detmniesliea will lie \Jedl State ad federally eafeJeeal:tle. B&fureeahility lhreagh the 

SIP , ... ~n apply te all perseBB whe agree te mitigate direst 8Bd ie#reet emtssieBS asseeiated ,NitS a FedeRil aetie& fer 

a ee&feRBity detenrin,t:iea. 

[12/14/94; Q8/Q2/9fi; 20.2.98.11§ )JMI£ It*; 20 NI.IAC 2.98.11S 1Qrl.3 1J92] 

lO.l,91.116 .Sl-'ZJNCS PRO'JZJSIONt The FedeFB:l se&fetmity rules UBder 40 CP-R part §1 suhpart \V, i& 

addit:iea te an.y eJt:istiag applieahle State NEJ:uifements, estahlish tlie eeafeFJBit:y eritefia aBEl presedYHs aeeessar-y te 

meet the refiH:iremente ef seet:iea 17fi{e)efthe Sle8ft l\ir l~t U&til weh time as this eenfermity implemeatatiea plaa 

revisie& is appreYed lly US Ql..'\. Felle"»iBg YS 8Ps":: appf9718:1 eft:llis revisies te the SIP (era partie& theree~, tile 

approved (er appre"led parties eftke) State eFiteFia BBd preeedures ·.veuiQ geYem eeafelmity dete-,jest:iens aB4 the 

FeEieml saRfetmity regulatieBS eetHai&ed iB 4Q CF.R p8ft 93 weald apply aBly fer t:he partie&; ifaay, efthe State's 

eesfeHBity prer;isieBS tHt is set appre·;ed hy l:JS ~'\; Ia a.Witie&; &BY pFeTJielHIIy appliea\Jle SIP RM~Uirements 

nlaHBg te eenfermity re=nh BBfereeahle 11Btil the State rerJises Ks SIP te speeifieally reme·~e them &Bd t:Bat fevisiea 

is approved lly YS BP-lz. 

[12/14/94; Q8.tQ2196; 2Q.2.98.116 )Dolt'£ R::~ 2Q )lJ.If£ 2.98.1lfi 1Q,L31/Q2] 

10.1.98.117 FEDER Y. DQCrn\IENT.S 1 Ped8Fal Ele&UIBents sited i& this Jegulatiea may lie r;iewed at the 

}f.&w ~feniee BavireBIII:eRt Depame.em, i\ir Quality Bl:IRiau, llareld IWBBels Buildiag, 119Q St FF&Beis Bri·;e, 8asta 

Fe, )Jw.v Mexise [2048 Galistee St., Saata Fe, ~IM 87j0j].] 

WSTORY OF 20.2.98 NMAC: 

Pre-NMAC History: None. 

History of Repealed Material: fPdlSBRVS)] 

20 NMAC 2.98. Conformity Of General 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 Of General Federal Actions To The State Implementation Plan, filed 

06/19/96. 

20 NMAC 2.98, Conformity Of General Federal Actions To The State Implementation Plan, filed 06/19/96 was 

renumbered, reformatted and replaced by 20.2.98 NMAC, Conformity Of General Federal Actions To 1De State 

Implementation Plan, effective I 0/31/02. 

20 NMAC 2.98, Conformity Of General Federal Actions To The State IIDPlementation Plan- repealed, 

XX/XX/2013 

Proposed Repeal of 20.2.98 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 CHAMPV Adetem: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 of emotionally 

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. CHAMPV A pays the 

CHAMPV A-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 CHAMPV A-allowable 

amount, as well as costs associated with 

noncovered services are not credited to 

the catastrophic cap computation. 

(b) If the CHAMPV A 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) of lhis 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 of first 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) If he or 

she detem:lines !hat there was good cause for missing lhe filing deadline. 

For example, when dual coverage exJsts 

CHAMPV A 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 CHAMPV A 

benefits will be provided to the 

benefidary on a CHAMPV A 

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 of the 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. If lhe beneficiary Is 

still dissatisfied, within 90 days of the 

date of the 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 of records 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 
Federal Register / Vol. 63, No. 174 / Wednesday, September 9, 1998 / Rules and Regulations 48107

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 entities

include 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 State

submittal 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
Federal Register / Vol. 63, No. 174 / Wednesday, September 9, 1998 / Rules and Regulations 48109

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 NEW MEXICO REGULATIONS

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 


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Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations 17255 

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: 


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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 


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

1Wayson, 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, 


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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 


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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 Conformity 

Regulations 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 of 

models 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 


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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 


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2While 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). 

3While 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 requirements 

apply 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 


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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 


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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 


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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. A 

more 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 


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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 


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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 its 

determination 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 


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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 


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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 show 

conformity 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) may 

work 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. 


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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 to 

the 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 not 

specifically 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 support 

and 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 agencies 

objected 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. The 

State 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 


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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 mitigation 

measures 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 


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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 


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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.’’ 


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■ 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 


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(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 

PM2.5: 

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. 


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(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 the 

installation 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 determination 

on 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 


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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, that 

determination 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 


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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 


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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 


erowe on DSK5CLS3C1PROD with RULES3
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations 17279 

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 


erowe on DSK5CLS3C1PROD with RULES3
c 

( 

119 STAT. 1878 PUBLIC LAW 109-59-AUG. 10, 2005 

(1) DEVELOPMENT.-The Secretary shall develop a nation· 

wide programmatic agreementfoverning the review of activities 

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 of title V of this 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) of title 

40, Code of Federal 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 of the 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 control 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 necessary 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 law1

, part of the State 

implementation plan and become federauy enforceable. 

"(ill) Within 90 days of its concurrence under subpara- graph (AX v ), 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 periodically 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 of the 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 

of the 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 pursuant to 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 Transpor~ 

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 projects will 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: ; 

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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 first publication 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 2o_U_. ·· 

PRICE g 39 ') .0 2_ 

Statement to come at end of moath. ' 

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~' · 
( New Mexico Commission of Public Records 

Administrative Law Division 

I 205 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 Invoice#: NMR-2014- 15 

Amount: $86.00 

Description: 

525 camino de Los Marquez #I 

Santa Fe, NM 87505-

Notice Notice of Rulemalr.lng Hearing 

Other Other Material Notice of State Jmplemen1a1ion Revision Plan 

State of New 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 the published 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 

10:00 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. 

Environ menial 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 I 2:00p.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 of latent $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 of the 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 of the 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 of the 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 of the 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 of this hearing process should 

contact Juan Carlos BUJ"'qo of the 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 of the 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. 

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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 of the Air 

Quality Bureau. She has worked in the Air Quality Bureau since June I 999. 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 of the 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 of regulations to implement Section 

I76(c) of the 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 of the Federal General Conformity Rule is to: 

• Ensure that federal activities do not cause or contribute to any new violation of National 

Ambient Air Quality Standards ("NAAQS"); 

COOKE TESTIMONY- PAGE 1 NMEDExb.S 
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• Ensure that actions do not cause more frequent or severe violations of the NAAQS in 

areas where violations already exist; and 

• Ensure that attainment of the 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 of nitrogen, 

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 of existing violations of the standards; or 

• delay attainment of the 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 of the regulation to be not consistent with the requirements of 40 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 of the 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 of Part 98. New Mexico removed Paragraph C of Section 

of 110 of Part 98 and resubmitted the revised Part 99 in September of 1999. 

II. PROPOSED REPEAL OF PART 98 

The proposed repeal of Part 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 of the 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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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 of general conformity SIPs optional 

rather than mandatory for states (75 Fed. Reg. 17 ,258). 

The proposed repeal of Part 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 

of New Mexico. The State currently has only one small particulate matter nonattainment area 

located in the Southern region of the 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 of Part 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 of 40 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 of the regulations." 75 Fed. Reg. at 17,258-259. 

IU. OUTREACH 

Outreach was conducted for the proposed repeal of Part 98 in the form of public 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 of Part 98 will have an adverse 

impact on the citizens or businesses of New Mexico. Due to limited usefulness of Part 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 of the 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 of Part 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 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. 

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 of Reasons 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 of General 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 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 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 of Part 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 of the Board. 

EIB No. 13-04 Proposed Statement of Reasons 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. 

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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 of Hearing 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 of a quorum of the Board members, the proposed regulatory revisions . ~ 

were approved by the Board on October 8, 2013. The repeal of 20.2.98 NMAC shall be filed 

with the New Mexico State Records Center, and submitted to the U.S. EPA for appropriate 

action. 

On Behalf of the Board 

EIB No. 13-04 Proposed Statement of Reasons and Order 

Page3 of3 

Dated: ________________ ___ 

NMEDExh.9 
I 

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 of Part 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 of Reasons and Order 

Page 1 of4 
r 

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 of General 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 of Part 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 of the Board. 

EIB No. 13-04 Statement of Reasons and Order 

Page 2 of4 
r 

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 of injury to or interference with health, welfare, visibility and 

property; 

(2) the public interest, including the social and economic value of the sources and 

subjects of air contaminants; and 

(3) technical practicability and economic reasonableness of reducing 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 of Reasons and Order 

Page 3 of4 
r 

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 of the reasons stated above. 

ORDER 

By unanimous vote of a quorum of the 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 Behalf of the Board 

EIB No. 13-04 Statement of Reasons 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 with the 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 technical witness 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 de la 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 Mejora 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 quien testificará(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 en la 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. 
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STATE OF NEW MEXICO . County of Bernalilio · · ss ·. ~ J 

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of The Albuquerque Jouroal, ~nd that. this newspaper is "duly qualified to publish legal notices or 

advertisements within the meaning ~f Section3, Chapter 167, Session Laws of 1937, a nd that payment 

ther~fore has been made of.assessect··as :C<lurt ~ost; ui~ t th~ ice, copy of ~hich is hereto attached, 

was published in said paper in the regular daily editio~. foi _t_ times, the first publication beirig on 

the ·..JJ- day of dt~\f · . · · , 20 tJ. , ~nd t~e s~bseq ent consecutive pul>lications on 

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\.J··v"\C~d~cl{\ ~t-{)v{\~~ Sworn and subscribed before 1"(1e, a Notary Public, in. and .. for the County\of BernaJillo a nd State of New Mexico. ti!i.s . 

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OFFICIAL SEAL 

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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 of Publication: 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 Notice of Rulemaking Hearing 

Other Other Material Notice of State Implementation Revision Plan 

(seal) 

State of New Mexico, County of Santa Fe 

Signed and affirmed before me on Thursday, August 0 I, 201 3 

by Art Bransford . Q . n~ Notary Publicc:::?J(Q/Ld,::)i__ _ _ _ _ Louise Wood [My commission expires: ~ q ] 

Affiant: ~ --- Publisher, New Mexico Register U--------'- Date: 8/ 1/2013 

- Copies of the published material documented in this affidavit are enclosedForm SRC-2002-04 Revised July 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 ENVIRONMENTAL 

IMPROVEMENT BOARD 

NOTICE OF RULEMAKING HEARING 

The New Mexico Environmental 

Improvement Board ("Board") will hold 

a public hearing on October 8, 2013 at 

I 0:00 a.m. at the Grant County Business 

and Confe rence 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 ("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, 20 I 0 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 Subpm1 

B was amended to make the adoption and 

submittal of General Conformity Sl Ps 

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 

I, Santa Fe, New Mexico from 12:00p.m.-

3:00p.m. on September 4, 20 13. To attend 

the informational open house, please contact 

Gail Cooke at 505-4 76-43 19 or gail. cooke@ 

state.nm.us. 

The proposed revised 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 

revised regul ations 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 wi ll 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 with the Board a written notice of intent 

to do so. The notice of intent shall: 

(I) 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 technical witness 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 5469Santa Fe, NM 87502 

Phone: (505) 827-2425, Fax (505) 827-03 10 

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 emai I j uancarlos. 

borrego@state.nm.us. TOY users please 

access his number via the New Mexico 

Relay Network at 1-800-659-833 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 Preserve, Recent Wildfire 

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, Habitat Stamp Sikes Act 

Citizen Advisory Committee, San Juan 

Fisheries Project Update, Hatchery 

Overview, New Mexico's State Wildlife 

Action Plan, Vehicle Wildlife Collisions, 

Department Personnel Overview, Northwest 

Area Office Update. Additionally they will 

hear and consider action as appropriate 

on proposed and final amendments to the 

following rules: Revocations, Revocation 

Timeframes for Violators, Reservation of 

Two Elk Licenses for Non-profit WishGranting Organizations, Director's Authority 

to Accommodate Disability or Medical 

Impairment, Proposed Amendment to the 

Scientific and Education Rules 19.35.6 and 

19.36.2 NMAC, Wild Turkey Management 

Update and Objectives 19.31.1 0 NMAC, 

Shooting Preserve in Chama, NM, Proposed 

Amendments to ( 19.31.1 2 NMAC) 

Ibex and Barbary Sheep Management, 

Migratory Game Birds 19.3 1.6 NMAC, 

Fiscal Year 2015 Budget Request, Proposed 

Amendments to Game and Fish Licenses/ 

Permits ( 19.30.9 NMAC) - Vendor Bond 

Requirement, and Proposed Amendments to 

the Fisheries Rule, 19.3 1.4 and Manner and 

Method Rule 19.31.1 0 NMAC. They will 

hear general public comments (comments 

are limited to three minutes). A closed 

executive session is planned to discuss 
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KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

(505) 243-5018 - Fax (505) 243-3606

1

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 8th 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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KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

(505) 243-5018 - Fax (505) 243-3606

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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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KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

(505) 243-5018 - Fax (505) 243-3606

3

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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KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

(505) 243-5018 - Fax (505) 243-3606

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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KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

(505) 243-5018 - Fax (505) 243-3606

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 persons 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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KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

(505) 243-5018 - Fax (505) 243-3606

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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KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

(505) 243-5018 - Fax (505) 243-3606

7

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 regional 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 outreach.

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

emissions from federally 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 1993 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 24th, 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 removed 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

Part 98 as it stands. Instead, as I mentioned, it is
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the federal agencies themselves 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 retain

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 update 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 31st, 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 1991, 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 1991, 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 update 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 update 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 resubmitting

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 regional

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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we do, as well.

So it's -- it was an unfortunate 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 federally

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

any area, or delay timely attainment of any standard or

any required interim emission reductions or other

milestones in any 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 1999, but you mentioned a date of 1997.

MS. COOKE: It was -- let me get to the

original Exhibit 4, which -- it's actually 1998, was

when the -- it was originally submitted in 1997, 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 resubmitted in 1998.

And so that, I think, is a typo.

And in 1998, 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 remove that, and we did, and we

resubmitted it in 1999.

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 --

17272, 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 resubmitting 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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(505) 243-5018 - Fax (505) 243-3606

27

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 17256, this is that Exhibit 4, it says,

"Because 40 CFR part 51, subpart 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 --
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KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

(505) 243-5018 - Fax (505) 243-3606

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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, subpart 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
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KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

(505) 243-5018 - Fax (505) 243-3606

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.
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KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

(505) 243-5018 - Fax (505) 243-3606

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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 1997 to 1999.

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.
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KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

(505) 243-5018 - Fax (505) 243-3606

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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 31st, 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
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KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

(505) 243-5018 - Fax (505) 243-3606

32

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.)
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KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

(505) 243-5018 - Fax (505) 243-3606

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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

24th [1] - 9:21

3

3 [5] - 4:6, 9:20, 13:8,

20:19, 30:13

3031 [1] - 1:15

31st [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

8th [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

Action [1] - 5:3

ACTIONS [1] - 1:5

actions [5] - 18:10,

18:25, 26:16, 26:17,

26:19

Actions [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

Air [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

Albuquerque [1] -

12:7

allowed [2] - 12:18,

15:15

allowing [1] - 11:6

ambient [1] - 18:16

Ambient [1] - 19:4

AMENDMENTS [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

Anthony [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

Application [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

Approval [1] - 4:8

approval [2] - 18:7,

24:5

approve [2] - 21:1,

31:24

approved [2] - 21:4,

21:12

April [1] - 4:10

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

(505) 243-5018 - Fax (505) 243-3606

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

August [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

CONFORMITY [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

COOKE [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

COUNTY [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

(505) 243-5018 - Fax (505) 243-3606

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

GAIL [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

GRANTHAM [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

HOLT [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

MICHAEL [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

NOTARY [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

PLAN [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

sworn [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

TIMOTHY [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

transportationrelated [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

viewable [1] - 6:5

violation [2] - 19:7,

19:9

violations [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

visibility [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