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

Current through Register Vol. 40, No. 24, July 15, 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.