7 Del. Admin. Code § 1135-8.0

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

Section 1135-8.0 - Criteria for Determining Conformity of General Federal Actions

8.1 An action required under 3.0 of this regulation to have a conformity determination for a specific pollutant, will be determined to conform to the applicable implementation plan if, for each pollutant that exceeds the rates in 3.2 of this regulation, or otherwise requires a conformity determination due to the total of direct and indirect emissions from the action, the action meets the requirements of 8.3 of this regulation, and meets any of the following requirements:

8.1.1 For any criteria pollutant, the total of direct and indirect emissions from the action.

8.1.2 For ozone or nitrogen dioxide, the total of direct and indirect emissions from the action are fully offset within the same nonattainment or maintenance area through a revision to the applicable implementation plan or a measure similarly enforceable under State and Federal law that affects emission reductions so that there is no net increase in emissions of that pollutant;

8.1.3 For any criteria pollutant, except ozone and nitrogen dioxide, the total of direct and indirect emissions from the action meet the requirements:

8.1.3.1 specified in 8.2 of this regulation, based on area-wide air quality modeling analysis and local air quality modeling analysis, or

8.1.3.2 specified in 8.1.5 of this regulation and, for local air quality modeling analysis, the requirement of 8.2 of this regulation;

8.1.4 For CO or PM₁₀,

8.1.4.1 Where the Department which is responsible for the applicable implementation plan determines (in accordance with 5.0 and 6.0 of this regulation and consistent with the applicable implementation plan) that an area-wide air quality modeling analysis is not needed, the total of direct and indirect emissions from the action meet the requirements specified in 8.2 of this regulation, based on local air quality modeling analysis, or

8.1.4.2 Where the Department which is responsible for the applicable implementation plan determines (in accordance with 5.0 and 6.0 of this regulation and consistent with the applicable implementation plan) that an area-wide air quality modeling analysis is appropriate and that a local air quality modeling analysis is not needed, the total of direct and indirect emissions from the action meet the requirements specified in 8.2 of this regulation, based on area-wide modeling, or meet the requirements of 8.1.5 of this regulation.

8.1.5 For ozone or nitrogen dioxide, and for purposes of 8.1.3.2 and 8.1.4.2 of this regulation, each portion of the action or the action as a whole meets any of the following requirements:

8.1.5.1 Where EPA has approved a revision to an area's attainment or maintenance demonstration after 1990 and the Department makes a determination as provided in 8.1.5.1.1 of this regulation or where the State makes a commitment as provided in 8.1.5.1.2 of this regulation. Any such determination or commitment shall be made in compliance with 5.0 and 6.0 of this regulation:

8.1.5.1.1 The total of direct and indirect emissions from the action (or portion thereof) is determined and documented by the Department which is responsible for the applicable implementation plan to result in a level of emissions which, together with all other emissions in the nonattainment (or maintenance) area, would not exceed the emissions budgets specified in the applicable implementation plan.

8.1.5.1.2 The total of direct and indirect emissions from the action (or portion thereof) is determined by the Department which is responsible for the applicable implementation plan to result in a level of emissions which, together with all other emissions in the nonattainment (or maintenance) area, would exceed an emissions budget specified in the applicable implementation plan and the Governor [or, if appropriate, the Governor's designee for SIP actions under State of Delaware law] makes a written commitment to EPA which includes the following:

8.1.5.1.2.1 A specific schedule for adoption and submittal of a revision to the applicable implementation plan which would achieve the needed emission reductions prior to the time emissions from the Federal action would occur;

8.1.5.1.2.2 Identification of specific measures for incorporation into the applicable implementation plan which would result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would not exceed any emissions budget specified in the applicable implementation plan;

8.1.5.1.2.3 A demonstration that all existing applicable implementation plan requirements are being implemented in the area for the pollutants affected by the Federal action, and that local authority to implement additional requirements has been fully pursued;

8.1.5.1.2.4 A determination that the responsible Federal agencies have required all reasonable mitigation measures associated with their action; and

8.1.5.1.2.5 Written documentation including all air quality analyses supporting the conformity determination.

8.1.5.1.3 Where a Federal agency made a conformity determination based on a state commitment under 8.1.5.1.2 of this regulation, such a State commitment is automatically deemed a call for an implementation plan revision by EPA under §110(k)(5) of the CAA, effective on the date of the Federal conformity determination and requiring response within 18 months or any shorter time within which the State commits to revise the applicable implementation plan;

8.1.5.2 The action (or portion thereof), as determined by the MPO, is specifically included in a current transportation plan and transportation improvement program which have been found to conform to the applicable implementation plan under 7 DE Admin Code 1132 (Transportation Conformity).

8.1.5.3 The action (or portion thereof) fully offsets its emissions within the same nonattainment or maintenance area through a revision to the applicable implementation plan or an equally enforceable measure that affects emission 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;

8.1.5.4 Where EPA has not approved a revision to the relevant implementation plan attainment or maintenance demonstration since 1990, the total of direct and indirect emissions from the action for the future years (described in 9.4 of this regulation) do not increase emissions with respect to the baseline emissions, and:

8.1.5.4.1 The baseline emissions reflect the historical activity levels that occurred in the geographic area affected by the proposed Federal action during:

8.1.5.4.1.1 Calendar year 1990,

8.1.5.4.1.2 The calendar year that is the basis for the classification (or, where the classification is based on multiple years, the year that is most representative in terms of the level of activity), if a classification is promulgated in 40 CFR Part 81 (July 1, 1994), or

8.1.5.4.1.3 The year of the baseline inventory in the PM₁₀ applicable implementation plan;

8.1.5.4.2 The baseline emissions are the total of direct and indirect emissions calculated for the future years [described in 9.4 of this regulation] using the historic activity levels (described in 8.1.5.4.1 of this regulation) and appropriate emission factors for the future years; or

8.1.5.5 Where the action involves regional water or wastewater projects, such projects are sized to meet only the needs of population projections that are in the applicable implementation plan, based on assumptions regarding per capita use that are developed or approved in accordance with 9.1 of this regulation.

8.2 The area-wide and local air quality modeling analyses must:

8.2.1 Meet the requirements in 9.0 of this regulation and

8.2.2 Show that the action does not:

8.2.2.1 Cause or contribute to any new violation of any standard in any area; or

8.2.2.2 Increase the frequency or severity of any existing violation of any standard in any area.

8.3 Notwithstanding any other requirements of 8.0 of this regulation, an action subject to this regulation may not be determined to conform to the applicable implementation plan unless the total of direct and indirect emissions from the action is in compliance or consistent with all relevant requirements and milestones contained in the applicable implementation plan, such as elements identified as part of the reasonable further progress schedules, assumptions specified in the attainment or maintenance demonstration, prohibitions, numerical emission limits, and work practice requirements, and such action is otherwise in compliance with all relevant requirements of the applicable implementation plan.

8.4 Any analyses required under 8.0 of this regulation must be completed, and any mitigation requirements necessary for a finding of conformity must be identified in compliance with 10.0 of this regulation, before the determination of conformity is made.

08/14/1996

7 Del. Admin. Code § 1135-8.0