N.M. Admin. Code § 20.11.4.158

Current through Register Vol. 35, No. 20, October 22, 2024

Section 20.11.4.158 - CRITERIA FOR DETERMINING CONFORMITY OF GENERAL FEDERAL ACTIONS

A. An action required under 20.11.4.153 NMAC to have a conformity determination for a specific pollutant, will be determined to conform to the applicable SIP if, for each pollutant that exceeds the rates in Subsection B of 20.11.4.153 NMAC, or otherwise requires a conformity determination due to the total of direct and indirect emissions from the action, the action meets the requirements of Subsection C of 20.11.4.158 NMAC, and meets any of the following requirements:

(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 accordance with 20.11.4.161 NMAC;

(2) for precursors of ozone, or 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 emission 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 meet the requirements:

(a) specified in Subsection B of 20.11.4.158 NMAC, based on area-wide air quality modeling analysis and local air quality modeling analysis; or

(b) meet the requirements of Paragraph (5), of Subsection A of 20.11.4.158 NMAC and, for local air quality modeling analysis, the requirement of Subsection B of 20.11.4.158 NMAC.

(4) For CO or directly emitted PM:

(a) where the air agency primarily responsible for the applicable SIP determines 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 Subsection B of 20.11.4.158 NMAC, based on local air quality modeling analysis; or

(b) where the air agency primarily responsible for the applicable SIP determines 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 Subsection B of 20.11.4.158 NMAC, based on area-wide modeling, or meet the requirements of Paragraph (5) of Subsection A of 20.11.4.158 NMAC or

(5) For ozone or nitrogen dioxide, and for purposes of Subparagraph (b) of Paragraph (3) of Subsection A of 20.11.4.158 NMAC and Subparagraph (b) of Paragraph (4) of Subsection A of 20.11.4.158 NMAC, each portion of the action or the action as a whole meets any of the following requirements:

(a) 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 Item (i) of Subparagraph (a) of Paragraph (5) of Subsection A of 20.11.4.158 NMAC or where the state or tribe makes a commitment as provided in Item (ii) of Subparagraph (a) of Paragraph (5) of Subsection A of 20.11.4.158 NMAC:

(i) the total of direct and indirect emissions from the action (or portion thereof) is determined and documented by the air agency primarily responsible for the applicable SIP 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 SIP;

(ii) the total of direct and indirect emissions from the action (or portion thereof) is determined by the air agency responsible for the applicable SIP 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 SIP and the state governor or the governor's designee for SIP actions makes a written commitment to EPA which includes the following: 1. A specific schedule for adoption and submittal of a revision to the SIP which would achieve the needed emission reductions prior to the time emissions from the federal action would occur; 2. Identification of specific measures for incorporation into the SIP 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 SIP; 3. A demonstration that all existing applicable SIP 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; 4. A determination that the responsible federal agencies have required all reasonable mitigation measures associated with their action; and 5. Written documentation including all air quality analyses supporting the conformity determination;

(iii) Where a federal agency made a conformity determination based on a state's or tribe's commitment under Item (i) of Subparagraph (a) of Paragraph (5) of Subsection A of 20.11.4.158 NMAC, 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 CAA, 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;

(iv) Where a federal agency made a conformity determination based on a state or tribal commitment under Item (ii) of Subparagraph (a) of Paragraph (5) of Subsection A of 20.11.4.158 NMAC 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.

(b) 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 SIP under 40 CFR Part 51, Subpart T, or 40 CFR Part 93, Subpart A;

(c) 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 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;

(d) 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 Subsection D of 20.11.4.159 NMAC) do not increase emissions with respect to the baseline emissions:

(i) the baseline emissions reflect the historical activity levels that occurred in the geographic area affected by the proposed federal action during: 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; or 3. The year of the baseline inventory in the PM₁₀ applicable SIP;

(ii) the baseline emissions are the total of direct and indirect emissions calculated for the future years (described in Subsection D of 20.11.4.159 NMAC) using the historic activity levels (described in Item (i) of Subparagraph (d) of Paragraph (5) of Subsection A of 20.11.4.158 NMAC) and appropriate emission factors for the future years; or

(e) 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 SIP.

B. The area-wide or local air quality modeling analyses must:

(1) meet the requirements in 20.11.4.159 NMAC; and

(2) show that the action does not:

(a) cause or contribute to any new violation of any standard in any area, or

(b) increase the frequency or severity of any existing violation of any standard in any area.

C. Notwithstanding any other requirements of 20.11.4.158 NMAC, an action subject to this regulation may not be determined to conform to the applicable SIP 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 SIP, 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.

D. Any analyses required under 20.11.4.158 NMAC must be completed, and any mitigation requirements necessary for a finding of conformity must be identified before the determination of conformity is made.

N.M. Admin. Code § 20.11.4.158

20.11.4.158 NMAC - Rn & A, 20.11.4.17 NMAC, 3/14/11