7 Del. Admin. Code § 1135-2.0

Current through Register Vol. 28, No. 1, July 1, 2024

Section 1135-2.0 - Definitions

Terms used but not defined in this regulation shall have the meaning given them by the CAA and EPA's regulations, in that order of priority.

"Affected federal land manager" means the Federal agency or the Federal official charged with direct responsibility for management of an area designated as Class I under the CAA (42 U.S.C. 7472) that is located within 100 km of the proposed Federal action.

"Applicable implementation plan" means the portion or portions of the implementation plan, or most recent revision thereof, which has been approved under §110 of the CAA, or promulgated under §110(c) of the CAA (Federal implementation plan), or promulgated or approved pursuant to regulations promulgated under §301(d) of the CAA and which implements the relevant requirements of the CAA.

"Area-wide air quality modeling analysis" means an assessment on a scale that includes the entire nonattainment or maintenance area which uses an air quality dispersion model to determine the effects of emissions on air quality.

"CAA" means the Clean Air Act, as amended in 1990.

"Cause or contribute to a new violation" means a federal action that:

(1) Causes a new violation of a national ambient air quality standard (NAAQS) at a location in a nonattainment or maintenance area which would otherwise not be in violation of the standard during the future period in question if the Federal action were not taken, or

(2) Contributes, in conjunction with other reasonably foreseeable actions, to a new violation of a NAAQS at a location in a nonattainment or maintenance area in a manner that would increase the frequency or severity of the new violation.

"Caused by, as used in the terms "direct emissions"and"indirect emissions" means emissions that would not otherwise occur in the absence of the federal action.

"Consultation" means that one party confers with another identified party, provides all information to that party needed for meaningful input, and, prior to taking any action, considers the views of that party and responds to those views in a timely, substantive written manner prior to any final decision on such action. Such views and written response shall be made part of the record of any decision or action.

"Criteria pollutant or standard" means any pollutant for which there is established a NAAQS at 40 CFR Part 50 (July 1, 1994).

"Department" means the Department of Natural Resources and Environmental Control for the State of Delaware.

"Direct emissions" mean those emissions of a criteria pollutant or its precursors that are caused or initiated by the Federal action and occur at the same time and place as the action.

"Emergency" means a situation where extremely quick action on the part of the Federal agencies involved is needed and where the timing of such Federal activities makes it impractical to meet the requirements of this regulation, such as natural disasters like hurricanes or earthquakes, civil disturbances such as terrorist acts, and military mobilizations.

"Emission budgets" mean those portions of the total allowable emissions defined in an EPA-approved revision to the applicable implementation plan for a certain date for the purpose of meeting reasonable further progress milestones or attainment or maintenance demonstrations, for any criteria pollutant or its precursors, specifically allocated by the applicable implementation plan to mobile sources, to any stationary source or class of stationary sources, to any Federal action or class of action, to any class of area sources, or to any subcategory of the emissions inventory. The allocation system must be specific enough to assure meeting the criteria of §176(c)(1)(B) of the CAA. An emissions budget may be expressed in terms of an annual period, a daily period, or other period established in the applicable implementation plan.

"Emission offsets" (for purpose of 8.0 of this regulation) mean emissions reductions which are quantifiable, consistent with the applicable implementation plan attainment and reasonable further progress demonstrations, surplus to reductions required by, and credited to, other applicable implementation plan provisions, enforceable under both State of Delaware and Federal law, and permanent within the time frame specified by the program. Emissions reductions intended to be achieved as emissions offsets under this regulation must be monitored and enforced in a manner equivalent to that under EPA's New Source Review (NSR) rules.

"Emissions that a federal agency has a continuing program responsibility for" mean emissions that are specifically caused by an agency carrying out its authorities, and does not include emissions that occur due to subsequent activities, unless such activities are required by the Federal agency. Where an agency, in performing its normal program responsibilities, takes actions itself or imposes conditions that result in air pollutant emissions by a non-Federal entity taking subsequent actions, such emissions are covered by the meaning of a continuing program responsibility.

"EPA" means the US Environmental Protection Agency.

"Federal action" means any activity engaged in by a department, agency, or instrumentality of the Federal government, or any activity that a department, agency or instrumentality of the Federal government supports in any way, provides financial assistance for, licenses, permits, or approves, other than activities related to transportation plans, programs, and projects developed, funded, or approved under title 23 U.S.C. or the Federal Transit Act ( 49 U.S.C. 1601 et seq.). Where the Federal action is a permit, license, or other approval for some aspect of a non-Federal undertaking, the relevant activity is the part, portion, or phase of the non-Federal undertaking that requires the Federal permit, license, or approval.

"Federal agency" means, for purposes of this regulation, a Federal department, agency, or instrumentality of the Federal government.

"Increase the frequency or severity of any existing violation of any standard in any area" means to cause a nonattainment area to exceed a standard more often or to cause a violation at a greater concentration than previously existed or would otherwise exist during the future period in question, if the project were not implemented.

"Indirect emissions" mean those emissions of a criteria pollutant or its precursors that:

(1) are caused by the Federal action, but may occur later in time or may be farther removed in distance from the action itself but are still reasonably foreseeable, and

(2) the Federal agency can practicably control and will maintain control over due to a continuing program responsibility of the Federal agency, including, but not limited to,

(i) traffic on, to, stimulated or accommodated by, a proposed facility which is related to increases or other changes in the scale or timing of operations of such facility;

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

(iii) emissions related to employee commutation and similar programs to increase average vehicle occupancy imposed on all employers of a certain size in the locality;

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

(v) emissions related to the activities of contractors or leaseholders that may be addressed by provisions that are usual and customary for contracts or leases or within the scope of contractual protection of the interests of the United States.

[NOTE: This term does not have the same meaning as given to an indirect source of emissions under §110(a)(5) of the CAA.]

"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 roadway intersections and highways or transit terminals, which uses an air quality dispersion model to determine the effects of emissions on air quality.

"Maintenance area" means any geographic region of the United States previously designated nonattainment pursuant to the CAA Amendments of 1990 and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan under § 175A of the CAA.

"Maintenance plan" means a revision to the applicable implementation plan, meeting the requirements of § 175A of the CAA.

"Metropolitan planning organization (MPO)" means that organization designated as being responsible, together with the State of Delaware, for conducting the continuing, cooperative, and comprehensive planning process under 23 U.S.C. 134 and 49 U.S.C. 1607.

"Milestone" has the meaning given in §182(g)(1) and §189(c)(1) of the CAA. A milestone consists of an emissions level and the date on which it is required to be achieved.

"National ambient air quality standards (NAAQS)" mean those standards established pursuant to §109 of the CAA and include standards for carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO₂), ozone, particulate matter (PM₁₀), and sulfur dioxide (SO₂).

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

"Nonattainment area (NAA)" means any geographic area of the United States which has been designated as nonattainment under §107 of the CAA and described in 40 CFR Part 81 (July 1, 1990).

"Precursors of a criteria pollutant" mean:

(1) For ozone, nitrogen oxides (NO_x) (unless an area is exempted from NO_x requirements under §182(f) of the CAA), and volatile organic compounds (VOC); and

(2) For PM₁₀, those pollutants described in the PM₁₀ nonattainment area applicable implementation plan as significant contributors to the PM₁₀ levels.

"Reasonably foreseeable emissions" mean projected future indirect emissions that are identified at the time the conformity determination is made; the location of such emissions is known to the extent adequate to determine the impact of such emissions; 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.

"Regionally significant action" means a federal action for which the direct and indirect emissions of any pollutant represent 10% or more of a nonattainment or maintenance area's emissions inventory for that pollutant.

"Regional water or wastewater projects" mean construction, operation, and maintenance of water or wastewater conveyances, water or wastewater treatment facilities, and water storage reservoirs which affect a large portion of a nonattainment or maintenance area.

"Total of direct and indirect emissions" mean the sum of direct and indirect emissions increases and decreases caused by the Federal action; i.e., the "net" emissions considering all direct and indirect emissions. Any emissions decreases used to reduce such total shall have already occurred or shall be enforceable under state and federal law. The portions of emissions which are exempt or presumed to conform under 3.3, 3.4, 3.5 or 3.6 of this regulation are not included in the "total of direct and indirect emissions", except as provided in 3.10 of this regulation. The "total of direct and indirect emissions" includes emissions of criteria pollutants and emissions of precursors of criteria pollutants. The segmentation of projects for conformity analyses when emissions are reasonably foreseeable is not permitted by this regulation.

08/14/1996

7 Del. Admin. Code § 1135-2.0