N.M. Code R. § 20.11.3.109

Current through Register Vol. 35, No. 12, June 25, 2024

Section 20.11.3.109 - CRITERIA AND PROCEDURES FOR DETERMINING CONFORMITY OF TRANSPORTATION PLANS, PROGRAMS, AND PROJECTS: GENERAL

A. In order for each transportation plan, program, and FHWA/FTA project to be found to conform, the MPO and DOT shall demonstrate that the applicable criteria and procedures in 20.11.3 NMAC are satisfied. The MPO and DOT shall comply with all applicable conformity requirements of implementation plans and court orders for the area which pertain specifically to conformity. The criteria for making conformity determinations differ based on the action under review (transportation plans, TIPs and FHWA/FTA projects), the relevant pollutant(s) and the status of the implementation plan.

B. Table 1 in Subsection B of 20.11.3.109 NMAC indicates the criteria and procedures in 20.11.3.110 NMAC through 20.11.3.119 NMAC, which apply for transportation plans, TIPs and FHWA/FTA projects. Subsection C of 20.11.3.109 NMAC explains when the budget, and interim emissions tests are required for each pollutant and NAAQS. Subsection D of 20.11.3.109 NMAC explains when a hot-spot test is required. Subsection E of 20.11.3.109 NMAC addresses conformity requirements for areas with approved or adequate limited maintenance plans. Subsection F of 20.11.3.109 NMAC addresses nonattainment and maintenance areas which EPA has determined have insignificant motor vehicle emissions. Subsection G of 20.11.3.109 NMAC addresses isolated rural nonattainment and maintenance areas. Table 1 follows:

TABLE 1. CONFORMITY CRITERIA

All Actions at all times:
20.11.3.110 NMAC	Latest planning assumptions
20.11.3.111 NMAC	Latest emissions model
20.11.3.112 NMAC	Consultation

Transportation Plan:
Subsection B of 20.11.3.113 NMAC	TCMs.
20.11.3.118 or 20.11.3.119 NMAC Emissions budget or interim emissions
TIP:
Subsection C of 20.11.3.113 NMAC	TCMs.
20.11.3.118 or 20.11.3.119 NMAC Emissions budget or interim emissions
Project (from a conforming plan and TIP):
20.11.3.114 NMAC	Currently conforming plan and TIP
20.11.3.115 NMAC	Project from a conforming plan and TIP
20.11.3.116 NMAC	CO, PM10 and PM 25 hot-spots
20.11.3.117 NMAC	PM10 and PM25 control measures
Project (Not From a Conforming Plan and TIP):
Subsection D of 20.11.3.113 NMAC	TCMs.
20.11.3.114 NMAC	Currently conforming plan and TIP
20.11.3.116 NMAC	CO, PM10 and PM2.5 hot-spots
20.11.3.117 NMAC	PM10 and PM25 control measures
20.11.3.118 or 20.11.3.119 NMAC Emissions budget or interim emissions

C. Regional conformity test requirements for all nonattainment and maintenance areas: This provision applies one year after the effective date of EPA's nonattainment designation for a NAAQS in accordance with Subsection D of 20.11.3.2 NMAC and until the effective date of revocation of such NAAQS for an area. In addition to the criteria listed in Table 1 in Subsection B of 20.11.3.109 NMAC that are required to be satisfied at all times, in such nonattainment and maintenance areas, conformity determinations shall include a demonstration that the budget or interim emissions tests are satisfied as described in the following:

(1) In all nonattainment and maintenance areas for a NAAQS the budget test shall be satisfied as required by 20.11.3.118 NMAC for conformity determinations for such NAAQS made on or after:

(a) the effective date of EPA's finding that a motor vehicle emissions budget in a submitted control strategy implementation plan revision or maintenance plan for such NAAQS is adequate for transportation conformity purposes;

(b) the publication date of EPA's approval of such a budget in the federal register; or

(c) the effective date of EPA's approval of such a budget in the federal register, if such approval is completed through direct final rulemaking.

(2) Prior to Paragraph (1) of Subsection C of 20.11.3.109 NMAC applying for a NAAQS, in a nonattainment area that has approved or adequate motor vehicle emissions budgets in an applicable implementation plan or implementation plan submission for another NAAQS of the same pollutant, the following tests must be satisfied:

(a) if the nonattainment area covers the same geographic area as another NAAQS of the same pollutant, the budget test as required by 20.11.3.118 NMAC using the approved or adequate motor vehicle emissions budgets for that other NAAQS;

(b) if the nonattainment area covers a smaller geographic area within an area for another NAAQS of the same pollutant, the budget test as required by 20.11.3.118 NMAC for either:

(i) the nonattainment area, using corresponding portion(s) of the approved or adequate motor vehicle emissions budgets for that other NAAQS, where such portion(s) can reasonably be identified through the interagency consultation process required by 20.11.3.105 NMAC; or

(ii) the area designated nonattainment for that other NAAQS, using the approved or adequate motor vehicle emissions budgets for that other NAAQS. If additional emissions reductions are necessary to meet the budget test for the nonattainment area for a NAAQS in such cases, these emissions reductions must come from within such nonattainment area;

(c) if the nonattainment area covers a larger geographic area and encompasses an entire area for another NAAQS of the same pollutant, then either Item (i) or (ii) of Subparagraph (c) of Paragraph (2) of Subsection C of 20.11.3.109 NMAC must be met:

(i) the budget test as required by 20.11.3.118 NMAC for the portion of the nonattainment area covered by the approved or adequate motor vehicle emissions budgets for that other NAAQS; and 2. the interim emissions tests as required by 20.11.3.119 NMAC for one of the following areas: the portion of the nonattainment area not covered by the approved or adequate budgets for that other NAAQS; the entire nonattainment area; or the entire portion of the nonattainment area within an individual state, in the case where separate adequate or approved motor vehicle emissions budgets for that other NAAQS are established for each state of a multistate nonattainment or maintenance area;

(ii) the budget test as required by 20.11.3.118 NMAC for the entire nonattainment area using the approved or adequate motor vehicle emissions budgets for that other NAAQS;

(d) if the nonattainment area partially covers an area for another NAAQS of the same pollutant:

(i) the budget test as required by 20.11.3.118 NMAC for the portion of the nonattainment area covered by the corresponding portion of the approved or adequate motor vehicle emissions budgets for that other NAAQS, where they can be reasonably identified through the interagency consultation process required by 20.11.3.105 NMAC; and

(ii) the interim emissions tests as required by 20.11.3.119 NMAC, when applicable, for either: the portion of the nonattainment area not covered by the approved or adequate budgets for that other NAAQS; the entire nonattainment area; or the entire portion of the nonattainment area within an individual state, in the case where separate adequate or approved motor vehicle emissions budgets for that other NAAQS are established for each state of a multistate nonattainment or maintenance area.

(3) In a nonattainment area, the interim emissions tests required by 20.11.3.119 NMAC must be satisfied for a NAAQS if neither Paragraph (1) nor Paragraph (2) of Subsection C of 20.11.3.109 NMAC applies for such NAAQS.

(4) An ozone nonattainment area shall satisfy the interim emissions test for NO_x, as required by 20.11.3.119 NMAC, if the implementation plan or plan submission that is applicable for the purposes of conformity determinations is a 15% plan or other control strategy SIP that does not include a motor vehicle emissions budget for NO_x. The implementation plan for an NAAQS shall be considered to establish a motor vehicle emissions budget for NO_x if the implementation plan or plan submission contains an explicit NO_x motor vehicle emissions budget that is intended to act as a ceiling on future NO_x emissions, and the NO_x motor vehicle emissions budget is a net reduction from NO_x emissions levels in the SIP's baseline year.

(5) Notwithstanding Paragraphs (1), (2) and (3) of Subsection C of 20.11.3.109 NMAC, nonattainment areas with clean data for NAAQS that have not submitted a maintenance plan and that EPA has determined are not subject to the Clean Air Act reasonable further progress and attainment demonstration requirements for that NAAQS shall satisfy one of the following requirements:

(a) the budget test or the interim emissions tests as required by 20.11.3.118 NMAC and 20.11.3.119 NMAC as described in Paragraph (2) and (3) of Subsection C of 20.11.3.109 NMAC;

(b) the budget test as required by 20.11.3.118 NMAC, using the adequate or approved motor vehicle emissions budgets in the submitted or applicable control strategy implementation plan for the NAAQS for which the area is designated nonattainment (subject to the timing requirements of Paragraph (1) of Subsection C of 20.11.3.109 NMAC; or

(c) the budget test as required by 20.11.3.118 NMAC, using the motor vehicle emissions in the most recent year of attainment as motor vehicle emissions budgets, if the state or local air quality agency requests that the motor vehicle emissions in the most recent year of attainment be used as budgets, and EPA approves the request in conjunction with the rulemaking that determines that the area has attained the NAAQS for which the area is designated nonattainment.

(6) For the PM₁₀ NAAQS only, the interim emissions tests must be satisfied as required by 20.11.3.119 NMAC for conformity determinations made if the submitted implementation plan revision for a PM₁₀ nonattainment area is a demonstration of impracticability under CAA Section 189(a)(1)(B)(ii) and does not demonstrate attainment.

D. Hot-spot conformity test requirements for CO, PM_2.5 and PM₁₀ nonattainment and maintenance areas: This provision applies in accordance with Subsection D of 20.11.3.2 NMAC for a NAAQS and until the effective date of any revocation of such NAAQS for an area. In addition to the criteria listed in Table 1 in Subsection B of 20.11.3.109 NMAC that are required to be satisfied at all times, project-level conformity determinations in CO, PM₁₀ and PM_2.5 nonattainment and maintenance areas shall include a demonstration that the hot-spot tests for the applicable NAAQS are satisfied as described in the following:

(1) FHWA/FTA projects in CO nonattainment or maintenance areas shall satisfy the hot-spot test required by Subsection A of 20.11.3.116 NMAC at all times; until a CO attainment demonstration or maintenance plan is approved by EPA, FHWA/FTA projects shall also satisfy the hot-spot test required by Subsection B of 20.11.3.116 NMAC;

(2) FHWA/FTA projects in PM₁₀ non-attainment or maintenance areas shall satisfy the appropriate hot-spot test required by Subsection A of 20.11.3.116 NMAC; and

(3) FHWA/FTA projects in PM_2.5 nonattainment or maintenance areas must satisfy the appropriate hot-spot test required by Subsection A of 20.11.3.116 NMAC.

E. Areas with limited maintenance plans: Notwithstanding the other subsections of 20.11.3.109 NMAC, an area is not required to satisfy the regional emissions analysis for 20.11.3.118 NMAC or 20.11.3.119 NMAC for a given pollutant and NAAQS if the area has an adequate or approved limited maintenance plan for such pollutant and NAAQS. A limited maintenance plan would have to demonstrate that it would be unreasonable to expect that such an area would experience enough motor vehicle emissions growth for a NAAQS violation to occur. A conformity determination that meets other applicable criteria in Table 1 of Subsection B of 20.11.3.109 NMAC is still required, including the hot-spot requirements for projects in CO PM₁₀ and PM_2.5 areas.

F. Areas with insignificant motor vehicle emissions: Notwithstanding the other subsections of 20.11.3.109 NMAC, an area is not required to satisfy a regional emissions analysis for 20.11.3.118 NMAC or 20.11.3.119 NMAC for a given pollutant/precursor and NAAQS, if EPA finds through the adequacy or approval process that a SIP demonstrates that regional motor vehicle emissions are an insignificant contributor to the air quality problem for that pollutant/precursor and NAAQS. The SIP would have to demonstrate that it would be unreasonable to expect that such an area would experience enough motor vehicle emissions growth in that pollutant/precursor for a NAAQS violation to occur. Such a finding would be based on a number of factors, including the percentage of motor vehicle emissions in the context of the total SIP inventory, the current state of air quality as determined by monitoring data for that NAAQS, the absence of SIP motor vehicle control measures and historical trends and future projections of the growth of motor vehicle emissions. A conformity determination that meets other applicable criteria in Table 1 in Subsection B of 20.11.3.109 NMAC is still required, including regional emissions analyses for 20.11.3.118 NMAC or 20.11.3.119 NMAC for other pollutants/precursors and NAAQS that apply. Hot-spot requirements for projects in CO, PM₁₀ and PM_2.5 areas in 20.11.3.116 NMAC shall also be satisfied, unless EPA determines that the SIP also demonstrates that projects will not create new localized violations or increase the severity or number of existing violations of such NAAQS. If EPA subsequently finds that motor vehicle emissions of a given pollutant/precursor are significant, this subsection would no longer apply for future conformity determinations for that pollutant/precursor and NAAQS.

G. Isolated rural non-attainment and maintenance areas: This subsection applies to any nonattainment or maintenance area (or portion thereof) which does not have a metropolitan transportation plan or TIP and whose projects are not part of the emissions analysis of any MPO's metropolitan transportation plan or TIP. This paragraph does not apply to "donut" areas which are outside the metropolitan planning boundary and inside the nonattainment/maintenance area boundary.

(1) FHWA/FTA projects in all isolated rural nonattainment and maintenance areas must satisfy the requirements of 20.11.3.110 NMAC, 20.11.3.111 NMAC, 20.11.3.112 NMAC, 20.11.3.116 NMAC, 20.11.3.117 NMAC and Subsection D of 20.11.3.113 NMAC. Until EPA approves the control strategy implementation plan or maintenance plan for a rural CO nonattainment or maintenance area, FHWA/FTA projects shall also satisfy the requirements of Subsection B of 20.11.3.116 NMAC.

(2) Isolated rural nonattainment and maintenance areas are subject to the budget or interim emissions tests as described in Subsection C of 20.11.3.109 NMAC, with the following modifications:

(a) When the requirements of Subsection D of 20.11.3.106 NMAC, 20.11.3.116 NMAC, 20.11.3.118 NMAC and 20.11.3.119 NMAC apply to isolated rural nonattainment and maintenance areas, references to "transportation plan" or "TIP" shall be taken to mean those projects in the statewide transportation plan or statewide TIP that are in the rural nonattainment or maintenance area. When the requirements of Subsection D of 20.11.3.106 NMAC apply to isolated rural nonattainment and maintenance areas, references to "MPO" shall be taken to mean the state department of transportation.

(b) In isolated rural nonattainment and maintenance areas that are subject to 20.11.3.118 NMAC, FHWA/FTA projects shall be consistent with motor vehicle emissions budget(s) for the years in the time frame of the attainment demonstration or maintenance plan. For years after the attainment year (if a maintenance plan has not been submitted) or after the last year of the maintenance plan, FHWA/FTA projects shall satisfy one of the following requirements:

(i) 20.11.3.118 NMAC;

(ii) 20.11.3.119 NMAC (including regional emissions analysis for NO_x in all ozone nonattainment and maintenance areas, notwithstanding Paragraph (2) of Subsection F of 20.11.3.119 NMAC);

(iii) as demonstrated by the air quality dispersion model or other air quality modeling technique used in the attainment demonstration or maintenance plan, the FHWA/FTA project, in combination with all other regionally significant projects expected in the area in the time frame of the statewide transportation plan, shall not cause or contribute to any new violation of any standard in any areas; 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; control measures assumed in the analysis shall be enforceable.

(c) The choice of requirements in Subparagraph (b) of Paragraph (2) of Subsection G of 20.11.3.109 NMAC and the methodology used to meet the requirements of Item (iii) of Subparagraph (b) of Paragraph (2) of Subsection G of 20.11.3.109 NMAC shall be determined through the interagency consultation process required in Subparagraph (h) of Paragraph (1) of Subsection D of 20.11.3.105 NMAC through which the relevant recipients of Title 23 U.S.C. or Federal Transit Laws funds, the local air quality agency, the state air quality agency and the state DOT shall reach consensus about the option and methodology selected. EPA and DOT shall be consulted through this process as well. In the event of unresolved disputes, conflicts may be escalated to the governor consistent with the procedure in Subsection E of 20.11.3.105 NMAC, which applies for any state air agency comments on a conformity determination.

N.M. Code R. § 20.11.3.109

20.11.3.109 NMAC - Rn & A, 20.11.3.206 NMAC, 11/15/10; A, 10/15/12