Virginia Administrative Code
Title 9 - ENVIRONMENT
Agency 5 - STATE AIR POLLUTION CONTROL BOARD
Chapter 160 - Regulation for General Conformity
Part III - Criteria and Procedures for Making Conformity Determinations
Section 9VAC5-160-160 - Criteria for determining conformity of general federal actions
Universal Citation: 9 VA Admin Code 5-160-160
Current through Register Vol. 41, No. 3, September 23, 2024
A. An action required under 9VAC5-160-30 to have a conformity determination for a specific pollutant, shall be determined to conform to the applicable implementation plan if, for each pollutant that exceeds the rates in 9VAC5-160-30 E, 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 this section, 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 implementation plan's attainment
or maintenance demonstration or reasonable further progress milestone or in a
facility-wide emission budget included in an applicable implementation plan in
accordance with
9VAC5-160-181;
2. For precursors of ozone, nitrogen dioxide,
or particulate matter, 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
implementation plan 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 meets the requirements:
a. Specified in
subsection B of this section, based on areawide air quality modeling analysis
and local air quality modeling analysis; or
b. Meet the requirements of subdivision 5 of
this subsection, and, for local air quality modeling analysis, the requirement
of subsection B of this section;
4. For carbon monoxide or particulate matter:
a. Where the department determines (in
accordance with
9VAC5-160-120 and
9VAC5-160-130 and consistent with
the applicable implementation plan) that an areawide 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 this section, based
on local air quality modeling analysis; or
b. Where the department determines (in
accordance with
9VAC5-160-120 and
9VAC5-160-130 and consistent with
the applicable implementation plan) that an areawide 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 this section, based on areawide
modeling, or meet the requirements of subdivision 5 of this subsection;
or
5. For ozone or
nitrogen dioxide, and for the purposes of subdivisions 3 b and 4 b of this
subsection, 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 department makes a determination that as
provided in subdivision 5 a (1) of this subsection or where the Commonwealth of
Virginia makes a commitment as provided in subdivision 5 a (2) of this
subsection:
(1) The total of direct and
indirect emissions from the action or portion thereof is determined and
documented by the department 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.
(2) The total of direct and
indirect emissions from the action or portion thereof is determined and
documented by the department to result in a level of emissions which, together
with all other emissions in the nonattainment or maintenance area, would exceed
an emissions budgets specified in the applicable implementation plan and the
Governor or the Governor's designee for state implementation plan actions makes
a written commitment to EPA which includes the following:
(a) A specific schedule for adoption and
submittal of a revision to the applicable implementation plan which would
achieve the needed emissions reductions prior to the time emissions from the
federal action would occur;
(b)
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;
(c) 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;
(d) A determination that
the responsible federal agencies have required all reasonable mitigation
measures associated with their action; and
(e) Written documentation including all air
quality analyses supporting the conformity determination.
(3) Where a federal agency made a conformity
determination based on a commitment from the Commonwealth of Virginia under
subdivision 5 a (2) of this subsection, and the department has submitted an
implementation plan to EPA covering the time period during which the emissions
will occur or is scheduled to submit such an implementation plan within 18
months of the conformity determination, the commitment is automatically deemed
a call for a revision to the applicable implementation plan by EPA under §
110(k)(5) of the federal Clean Air Act, effective on the date of the federal
conformity determination and requiring response within 18 months or any shorter
time within which the Commonwealth of Virginia commits to revise the applicable
implementation plan.
(4) Where a
federal agency made a conformity determination based on a commitment from the
Commonwealth of Virginia under subdivision 5 a (2) of this subsection and the
department has not submitted an implementation plan covering the time period
when the emissions will occur or is not scheduled to submit such an
implementation plan within 18 months of the conformity determination, the
department will, within 18 months, submit to EPA a revision to the existing
implementation plan committing to include the emissions in the future
implementation plan revision.
b. The action or portion thereof, as
determined by the metropolitan planning organization, is specifically included
in a current transportation plan and transportation improvement program which
have been found to conform to the applicable implementation plan 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
implementation plan or an equally enforceable measure that effects emissions
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 implementation plan since the area was
redesignated or classified, the total of direct and indirect emissions from the
action for the future years (described in
9VAC5-160-170) do not increase
emissions with respect to the baseline emissions.
(1) The baseline emissions reflect the
historical activity levels that occurred in the geographic area affected by the
proposed federal action during:
(a) The most
current calendar year with a complete emissions inventory available before an
area is designated unless EPA sets another year;
(b) The emission budget in the applicable
implementation plan; or
(c) The
year of the baseline inventory in the PM10-applicable
implementation plan.
(2)
The baseline emissions are the total of direct and indirect emissions
calculated for the future years (described in
9VAC5-160-170 D) using the historic
activity levels (described in subdivision 5 d (1) of this subsection) and
appropriate emission factors for the future years.
e. Where the action involves regional water
or wastewater projects or both, the 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
9VAC5-160-170 A.
B. The areawide or local air quality modeling analyses or both shall:
1. Meet the requirements of
9VAC5-160-170; 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 this section, an action subject to this section 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 the action is otherwise in accordance with all relevant requirements of the applicable implementation plan.
D. Any analyses required under this section shall be completed, and any mitigation requirements necessary for a finding of conformity shall be identified in accordance with 9VAC5-160-180 before the determination of conformity is made.
Statutory Authority
§ 10.1-1308 of the Code of Virginia.
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