
[Federal Register: April 22, 2010 (Volume 75, Number 77)]
[Rules and Regulations]               
[Page 20922-20925]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ap10-10]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2005-NM-0007; FRL-9140-2]

 
Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Transportation Conformity Requirement for Bernalillo County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action approving a State 
Implementation Plan (SIP) revision submitted by the Governor of New 
Mexico on December 4, 2008 on behalf of the Albuquerque Environmental 
Health Department (AEHD). This revision serves to incorporate recent 
changes to the Federal conformity rule into the state conformity SIP 
for Bernalillo County, and supersedes previous revisions submitted by 
the Governor of New Mexico on May 15, 2003 and August 4, 2005. EPA is 
approving the December 4, 2008 revision in accordance with the 
requirements of the Federal Clean Air Act (CAA).

DATES: This rule is effective on June 21, 2010 without further notice, 
unless EPA receives relevant adverse comment by May 24, 2010. If EPA 
receives such comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2005-NM-0007, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     EPA Region 6 ``Contact Us'' Web site: http://epa.gov/
region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select 
``Air'' before submitting comments.
     E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please 
also send a copy by e-mail to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except 
for legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2005-NM-0007. EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: 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., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, 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 Air Planning 
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an 
appointment. If possible, please make the appointment at least two 
working days in advance of your visit. There will be a 15 cent per page 
fee for making photocopies of documents. On the day of the visit, 
please check in at the EPA Region 6 reception area at 1445 Ross Avenue, 
Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection at the 
State Air Agency listed below during official business hours by 
appointment:
    City of Albuquerque Environmental Health Department, Air Quality

[[Page 20923]]

Division, Office of Air Quality, One Civic Plaza Northwest, 
Albuquerque, New Mexico 87103.

FOR FURTHER INFORMATION CONTACT: Jeffrey Riley, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-8542; fax number 
214-665-7263; e-mail address riley.jeffrey@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we'' 
``us'' or ``our'' is used, we mean the EPA.

Outline

I. What Is Transportation Conformity?
II. What Is the Background for This Action?
III. What Did the State Submit and How Did We Evaluate It?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What Is Transportation Conformity?

    Transportation conformity is required under section 176(c) of the 
Clean Air Act to ensure that Federally supported highway, transit 
projects, and other activities are consistent with (conform to) the 
purpose of the approved SIP. Conformity currently applies to areas that 
are designated nonattainment, and those areas redesignated to 
attainment after 1990 (maintenance areas), with plans developed under 
section 175A of the Clean Air Act for the following transportation 
related criteria pollutants: Ozone, particulate matter 
(PM2.5 and PM10), carbon monoxide (CO), and 
nitrogen dioxide (NO2). Conformity with the purpose of the 
SIP means that transportation activities will not cause new air quality 
violations, worsen existing violations, or delay timely attainment of 
the relevant National Ambient Air Quality Standards (NAAQS). The 
Federal transportation conformity regulations (Federal Rule) are found 
in 40 CFR part 93 and provisions related to conformity SIPs are found 
in 40 CFR 51.390.

II. What Is the Background for This Action?

    The transportation conformity SIP enables the area to implement and 
enforce the Federal transportation conformity requirements per 40 CFR 
51 subpart T and 40 CFR 93 subpart A. The AEHD initially complied with 
this requirement by submitting a SIP to EPA on December 19, 1994; we 
approved this SIP on November 8, 1995 (60 FR 56241). A revision to the 
conformity SIP was submitted on December 9, 1998 and approved by EPA on 
July 8, 1999 (64 FR 36786). Since the July 8, 1999 approval, the 
Governor of New Mexico has submitted three further revisions to the 
conformity SIP. The most recent of these, the December 4, 2008 
submittal, supersedes the previous revisions submitted on May 15, 2003 
and August 4, 2005. These previous revisions were also made to 
incorporate Federal conformity rule changes into the state conformity 
SIP for Bernalillo County, but contained language that was in conflict 
with the Federal rules that were in effect at the time of EPA's review 
of the conformity SIP. Therefore, EPA could not approve the language in 
question. EPA and AEHD agreed that rather than EPA acting to partially 
approve the submittals, AEHD would develop a subsequent submittal to 
supersede the previous submittal, address the conflicting language, and 
capture any revisions made to the Federal rules in the elapsed time 
since state adoption of revisions to the Bernalillo County 
transportation conformity SIP. This approach was taken on both the 
August 4, 2005 submittal (to supersede the May 15, 2003 submittal) and 
the December 4, 2008 submittal (to supersede the August 4, 2005 
submittal) to keep pace with necessary revisions to the Bernalillo 
County transportation conformity SIP.
    On January 9, 2002, the AEHD adopted changes to the conformity SIP 
to include a definition for Land Use Measures (LUM) along with 
requirements for using LUMs as air quality credits in conformity 
determinations. This revision also incorporated language regarding an 
acceptable Transportation Control Measure (TCM) substitution process 
and provided clarity on when emission reduction credits for TCMs may be 
used in the conformity process. These revisions were approved by the 
AEHD on January 9, 2002 and they were submitted to EPA by the Governor 
of New Mexico on May 15, 2003. EPA did not take action on these 
revisions, and the December 4, 2008 submittal is intended to supersede 
these revisions.
    On July 1, 2004, EPA published significant revisions to our 
conformity regulations (69 FR 4004) to address criteria and procedures 
for the new 8-hour ozone and fine particulate (PM2.5) 
National Ambient Air Quality Standards (NAAQS). In the same Federal 
Register notice, EPA also addressed a March 2, 1999 ruling by the U.S. 
Court of Appeals for the District of Columbia (Environmental Defense 
Fund v. EPA, et al., 167 F. 3d 641 D.C. Cir. 1999); the July 1 
revisions served to bring our regulatory language in line with this 
court decision. The SIP revision package adopted by the AEHD on May 11, 
2005, and submitted by the Governor of New Mexico on August 4, 2005, 
addressed these mandatory revisions, as well as EPA's August 6, 2002 
revision to the Federal conformity rule (67 FR 50808). EPA did not take 
action on these revisions, and the December 4, 2008 submittal is 
intended to supersede these revisions.
    On August 10, 2005, the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) was signed 
into law. SAFETEA-LU revised certain provisions of section 176(c) of 
the Clean Air Act, related to transportation conformity. Prior to 
SAFETEA-LU, states were required to address all of the Federal Rule's 
provisions in their conformity SIPs. After SAFETEA-LU, state's SIPs 
were required to contain all or portions of only the following three 
sections of the Federal Rule, modified as appropriate to each state's 
circumstances: 40 CFR 93.105 (consultation procedures); 40 CFR 
93.122(a)(4)(ii) (written commitments to implement certain kinds of 
control measures); and 40 CFR 93.125(c) (written commitments to 
implement certain kinds of mitigation measures). Pursuant to SAFETEA-
LU, states are no longer required to submit conformity SIP revisions 
that address the other sections of the Federal conformity rule. 
However, as with previous SIP revisions, the AEHD has maintained its 
practice of incorporating federal language into local rules and 
customizing such rules to meet the standard required by the New Mexico 
Administrative Code (NMAC) style guidance, rather than incorporating by 
reference the federal rules.
    EPA promulgated amendments to the Federal conformity rule on 
January 24, 2008 (73 FR 4420). The December 4, 2008 revision serves to 
update Albuquerque's regulations and bring them in line with these most 
recent changes to the Federal conformity rule, as well as EPA's May 6, 
2005 (70 FR 24279) and March 10, 2006 (71 FR 12467) revisions to the 
Federal conformity rule.

III. What Did the State Submit, and How Did We Evaluate It?

    On December 4th, 2008, the Governor of New Mexico submitted a 
revision to the Bernalillo County, New Mexico State Implementation Plan 
(SIP) for Transportation Conformity purposes. The SIP revision consists 
of language to address the three provisions of the EPA Conformity Rule 
required under SAFETEA-LU: 40 CFR 93.105 (consultation procedures); 40 
CFR 93.122(a)(4)(ii) (certain control measures), and 40 CFR 93.125(c)

[[Page 20924]]

(mitigation measures). As previously stated, the AEHD did not 
incorporate the Federal conformity rule by reference, but submitted 
language intended to mirror the content of the Federal conformity rule, 
while placing greater specificity on the roles and expectations of 
state and local agencies/entities which have responsibility for 
undertaking transportation conformity in conjunction with 
transportation planning activities along with the three Federal 
Agencies (EPA, Federal Highway Administration, and Federal Transit 
Administration) who are participating members in the conformity 
consultation process.
    We reviewed the submittal to assure consistency with the January 
2009, ``Guidance for Developing Transportation Conformity State 
Implementation Plans''. The guidance document can be found at http://
www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf. The 
guidance document states that each state is only required to address 
and tailor the afore-mentioned three sections of the Federal Conformity 
Rule in their state conformity SIPs.
    EPA's review of New Mexico's Bernalillo County Transportation 
Conformity SIP revision indicates that it is consistent with EPA's 
guidance in that it included the three elements specified by SAFETEA-LU 
and EPA's guidance. Consistent with the EPA Conformity Rule at 40 CFR 
93.105 (consultation procedures), NMAC 20.11.3.202 establishes the 
requirements for the appropriate agencies, procedures and allocation of 
responsibilities as required under 40 CFR 93.105 for consultation 
procedures. In addition, this chapter provides for appropriate public 
consultation/public involvement consistent with 40 CFR 93.105. With 
respect to 40 CFR 93.122(a)(4)(ii) and 40 CFR 93.125(c), NMAC 
20.11.3.219(A)(4)(b) and NMAC 20.11.3.222(C) of the executed MOUs 
specifies that written commitments for control measures and mitigation 
measures for meeting these requirements will be provided as needed.

IV. Final Action

    EPA is hereby approving the Bernalillo County SIP revision for 
Transportation Conformity, which was submitted on December 4, 2008. We 
have evaluated the State's submittal and have determined that it meets 
the applicable requirements of the Clean Air Act and EPA regulations, 
and is consistent with EPA policy. The December 4, 2008 submission 
supersedes the May 15, 2003 and August 4, 2005 submissions, so no 
action is necessary on these earlier submissions.
    EPA is publishing this rule without prior proposal because we view 
this as a non-controversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the SIP revision if relevant adverse 
comments are received. This rule will be effective on June 21, 2010 
without further notice unless we receive adverse comment by May 24, 
2010. If we receive adverse comments, we will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. We will address all public comments in a 
subsequent final rule based on the proposed rule. We will not institute 
a second comment period on this action. Any parties interested in 
commenting must do so now. Please note that if we receive adverse 
comment on an amendment, paragraph, or section of this rule and if that 
provision may be severed from the remainder of the rule, we may adopt 
as final those provisions of the rule that are not the subject of an 
adverse comment.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    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. EPA will submit a report containing this action 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).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by June 21, 2010. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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

[[Page 20925]]

enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Nitrogen dioxides, 
Particulate matter, Reporting and recordkeeping requirements, 
Transportation conformity, Transportation--air quality planning, 
Volatile organic compounds.

    Dated: April 9, 2010.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart GG--New Mexico

0
2. The second table in Sec.  52.1620(c) entitled ``EPA Approved 
Albuquerque/Bernalillo County, NM Regulations'' is amended by revising 
the entry for Part 3 (20.11.3 NMAC), Transportation Conformity, to read 
as follows:


Sec.  52.1620  Identification of plan.

* * * * *
    (c) * * *

                           EPA-Approved Albuquerque/Bernalillo County, NM Regulations
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                                                       State approval/
         State citation              Title/subject     effective date   EPA approval date        Explanation
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 11--Albuquerque/Bernalillo County
                                            Air Quality Control Board
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                                                  * * * * * * *
Part 3 (20.11.3 NMAC)...........  Transportation           12/17/2008  April 22, 2010       ....................
                                   Conformity.                          [Insert FR page
                                                                        number where
                                                                        document begins].

                                                  * * * * * * *
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[FR Doc. 2010-9196 Filed 4-21-10; 8:45 am]
BILLING CODE 6560-50-P

