### ENCLOSURE 2

CERTIFICATION OF PUBLIC PARTICIPATION ACTIVITIES AND COMPLIANCE WITH STATE ADMINISTRATIVE PROCEDURES

As required by 40 CFR 51.102 and Section 2. 1 of Appendix V of 40 CFR Part 51, the following information regarding public participat ion activities and compliance with state administrative procedures is provided.

PUBLIC PARTICIPATION ACTIVITIES

As required by 40 CFR 51.102(a), a public co mment period to provide the opportunity to submit written comments concerning a proposed revision to the Commonwealth of Virginia State Implementation Plan wa s held from May 9 to June 8, 2011.

As required by 40 CFR Part 51.102(a) and (d)(1 ) and (2), the public was given notice of the public comment period in the Virginia Register, along with the location of the proposal for public inspection, on May 9, 2011. The notice included procedures to afford the public the opportunity to reques t that a hearing be held pursuant to 40 CFR 51.102(a); no such request was received. The a ttached copy of the notice provides the evidence required by Section 2.1(f) of Appendix V of 40 CFR Part 51.

The Regional Administrator for the U.S. En vironmental Protection Agency was notified of the public comment period, as was each local air pollution control agency which will be significantly affected by the revision and is located in the affected Air Quality Control Regions. In addition, the District of Columbia, Maryland and Tennessee, which share affected interstate Air Quality Control Regions with Virginia, were notified of the public comment period. These notifications follow the requirements of 40 CFR Part 51.102(d)(3), (4) and (5).

COMPLIANCE WITH STATE ADMINISTRATIVE PROCEDURES

As required by Section 2.1(b) of Appendi x V of 40 CFR Part 51, the regulation amendments were published in the Virginia Register on January 31, 2011 after being duly adopted by the State Air Pollution Contro l Board on December 17, 2010, certified by the Office of the Attorney General as within the board’s statutory authority on January 5, 2011, and thus fully enforceable underVirginia law, and submitted to the Virginia Registrar on behalf of the board by t he Department of Environmental Quality as a true and accurate copy of the duly adopted regulation on January 6, 2011, providing the evidence required by Section 2.1(b) and (e) of Appendix V of 40 CFR Part 51. As required by Section 2.1(d) of Appendix V of 40 CFR Part 51, a copy of the actual regulation submitted for approval and in corporation by reference into the Commonwealth of Virginia State Implem entation Plan is attached, along with the effective date of March 2, 2011.

TEMPLATES\SIP-REG\REG02-PH SIP\NONATTN\2011\E10-SIP-2.DOC

# General Notices/Errata

Volume 27, Issue 18 Virginia Register of Regulations May 9, 2011

2108 Contact Information: Karen G. Sabasteanski, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4426, FAX (804) 698-4510, or email karen.sabasteanski@deq.virginia.gov.

Public Comment Period - Proposed State Implementation Plan Revision

(Transportation Conformity)
Notice of action: The Department of Environmental Quality (DEQ) is announcing an opportunity for public comment on a proposed revision to the Commonwealth of Virginia state implementation plan (SIP). The SIP is a plan developed by the Commonwealth in order to fulfill its responsibilities under the federal Clean Air Act to attainand maintain the ambient air quality standards promulgated by the U.S. Environmental Protection Agency (EPA) under the Act. The Commonwealth intends to submit the regulation to EPA as a revision to the SIP in accordance with the requirements of § 110(a) of the federal Clean Air Act. Regulations affected: The regulatio n of the board affected by this action is Regulation for Transportation Conformity (9VAC5-151, Rev. E10). Purpose of notice: DEQ is seeking comment on the issue of whether the regulation amendment s should be submitted as a revision to the SIP. Public comment period: May 9, 2011, to June 8, 2011. Public hearing: A public hearing may be conducted if a request is made in writing to the contact listed below. In order to be considered, the request must include the full name, address, and telephone number of the person requesting the hearing and be received by DEQ by the last day of the comment period. Notice of the dat e, time, and location of any requested public hearing will be announced in a separate notice, and another 30-day comment period will be conducted. Public comment stage: The regulation amendments are exempt from the state administrative procedures for adoption of regulations contained in Article 2 of the Administrative Process Act by the provisions of § 2.2-4006 A 4 a of the Administrative Process Act because they are necessary to conform to Virginia statutory law. Since the amendments are exempt from administrative procedures for the adoption of regulations, DEQ is accepting comment only on the issue cited above under "purpose of notice" and not on the content of the regulation amendments. Description of proposal: The proposed revision will consist of amendments to existing regulation provisions concerning transportation conformity, 9VAC5-151. The major provisions of the proposal are summarized as follows: The federal Clean Air Act requires that federally-funded transportation plans, programs, and projects conform to state air quality implementation plans (SIPs). Metropolitan planning organizations and the Un ited States Department of Transportation must demonstrate that such plans, programs, and projects conform to Virginia's SIP. "Conformity" means that the activity confo rms to the SIP's purpo se of eliminating or reducing the severity and number of violations of the National Ambient Air Quality Standards (NAAQS) and achieving expeditious attainment of such standards, and will not (i) cause or contribute to any new violation of any standard, (ii) increase the frequency or severity of any existing violation of any standard, or (iii) delay timely attainment of any standard or any required interim emission reductions or other milestones. Under 40 CFR 51.390, Virginia is required to submit to the EPA a revision to the SIP that establishes conformity cr iteria and procedures consistent with the transportation conformity regulation promulgated by EPA at 40 CFR Part 93. EPA promulgated amendments to the federal transportation regulation on March 24, 2010 (75 FR 14260). In this action, EPA amended the transportation con formity rule to finalize provisions that were proposed on May 15, 2009, and to address hot-spot analyses as a result of a remand from the Court of Appeals for the District of Columbia Circuit. EPA updated the transportation conformity regulation in light of the October 17, 2006, final rule that strengthened the 24-hour PM 2.5 NAAQS and revoked the annual PM 10 NAAQS (71 FR 61144). However, the October 2006 rule did not revoke the 1997 annual or 24-hr PM 2.5 NAAQS; therefore, the designations for the 2006 PM 2.5 NAAQS remain separate from the existing designations for the 1997 PM 2.5 NAAQS. Transportation conformity applies for the NAAQS for which an area is designated no nattainment; the transportation conformity regulation must address all PM 2.5 designations. The federal transportation conformity regulations address the following: (i) determining the baseline year for certain 2006 PM 2.5 nonattainment areas, (ii) regio nal conformity tests in 2006 PM 2.5 nonattainment areas that do not have adequate or approved SIP budgets for the 1997 PM 2.5 NAAQS, (iii) regional conformity tests in 2006 PM 2.5 areas that have 1997 PM 2.5 SIP budgets, (iv) other conf ormity requirements for 2006 PM 2.5 areas, (v) transpo rtation conformity in PM 10 nonattainment and maintenance areas in light of the revocation of the annual PM 10 NAAQS, and (vi) response to the December 2007 hot-spot court decision. In order to implement the federal transportation conformity requirements, the Virginia re gulation must reflect the recent revisions made to the federal regulations. To this end, 9VAC5-151 needs to be amended to include the most recent federal revisions.

Federal information: This notice is being given to satisfy the public participation requireme nts of federal regulations (40 CFR 51.102) and not any provision of state law. Except as noted below, the proposal will be submitted as a revision to the Commonwealth of Virginia SIP under § 110(a) of the

# General Notices/Errata

Volume 27, Issue 18 Virginia Register of Regulations May 9, 2011

2109 federal Clean Air Act in accordance with 40 CFR 51.104. It is planned to submit all provisi ons of the proposal as a revision to the Commonwealth of Virginia SIP. How to comment: DEQ accepts written comments by email, fax, and postal mail. In order to be considered, comments must include the full name, address, and telephone number of the person commenting and be received by DEQ by the last day of the comment period. Commenters submitting faxes are encouraged to provide the signe d original by postal mail within one week. All testimony, exhibits, and documents received are part of the public record. To review regulation documents: The proposal and any supporting documents are available on the DEQ Air Public Notices for Plans website (http://www.deq.state.v a.us/air/permitting/planotes.html). The documents may also be obtained by contacting the DEQ representative named below. Th e public may review the documents between 8:30 a.m. and 4:30 p.m. of each business day until the close of the public comment period at the following DEQ locations: 1) Main Street Office, 8th Floo r, 629 East Main Street, Richmond, VA, telephone (804) 698-4070, 2) Piedmont Regional Office, 4949-A Cox Road, Glen Allen, VA, telephone (804) 527-5020, 3) Northern Regional Office, 13901 Crown Court, Woodbridge, VA, telephone (703) 583-3800, and 4) Tidewater Regional Offi ce, 5636 Southern Blvd., Virginia Beach, VA, telephone (757) 518-2000. Contact Information: MaryE. Major, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4423, FAX (804) 698-4510, or email mary.major@deq.virginia.gov.

STATE CORPORATION COMMISSION

Bureau of Insurance
April 12, 2011

Administrative Letter 2011-01

TO: All Insurers Licensed to Write Accident and Sickness Insurance in Virg inia, and All Health Services Plans and Health Maintenance Organizations Licensed in Virginia RE: 14VAC5-190-10 et seq.: Rules Governing the Reporting of Cost and Utilization Data Relating to Mandated Benefits and Mandated Providers - 2010 Reporting Period The purpose of this Administrative Letter is to assist carriers in the preparation of the Annual Report of Cost and Utilization Data relating to Mandated Benefits and Providers required pursuant to 14VAC5-190-10 et seq. and § 38.2- 3419.1 of the Code of Virginia, and to remind all affected carriers of the reporting requiremen ts applicable to mandated benefits and providers for the 2010 reporting year. Carriers should refer to 14VAC5-190-40 for an explanation of the circumstances under which a full and complete or an abbreviated report must be f iled, or under which a company may be exempt from filing a repo rt. The Virgin ia total annual written premiums for all accid ent and sickness policies or contracts referred to in the regulation is the amount reported to the Commission on the company's Annual Statement for the year ending December 31, 2010. This is the amount used to determine if a report is required. Each affected carrier must submit a completed Form MB-1 to furnish the required information. It is not acceptable to submit more than one Form MB-1 for a single carrier or to consolidate information from different carriers on one form. The completed Form MB-1 (cover sheet and sections) is due on or before May 1, 2011 and may be submitted electronically. The due date may not be extended for any reason, including the inab ility to file the reportselectronically. The instructions, representative CPT and ICD9-CM codes, and forms for the 2010 reporting period are available on the Bureau of Insurance's website at: http://www.scc.virginia.g ov/division/boi/webpages/boimanda tedforms.htm. The instructions explain the type of information necessary to complete Form MB-1. All sources of information, including 14VAC5-190-10 et seq., §§ 38.2-3408 through 38.2-3418.15, as applicable, § 38.2-4221, and CPT and ICD-9-CM codes, should be consulted in the pr eparation of this report. Please note that the CPT and ICD-9-CM codes are not intended to exhaust all medical codes that may be used in collecting data for Form MB-1, but are representative of some of the more common codes associated with the mandated benefits. Carriers are reminded that failure to submit a substantially complete and accurate report pursuant to the provisions of 14VAC5-190-10 et seq., by May 1, 2011, may be considered a violation subject to a penalty as set forth in § 38.2-218 of the Code of Virginia. Lack of notice, lack of information, lack of means of producing the requi red data, or other such reasons will not be accepted for not submitting a complete and accurate report in a timely manner. Correspondence regarding repor ting requirements should be directed to Mary Ann Mason, Senior Insurance Market Examiner, Forms and Rates Section, Bureau of Insurance, Life and Health Division, P.O. Box 1157, Richmond, VA 23218, telephone (804) 371-9348, FAX (804) 371-9944, or email maryann.mason@scc.virgi nia.gov. System related questions or problems should be directed to Andrew Iverson, Insurance Analyst, Bureau of Insuran ce, Automated Systems, P.O. Box 1157, Richmond, VA 23218, telephone (804) 371- 9851, FAX (804) 371-9516, or email andrew.iverson@scc.virginia.gov.

# Regulations

Volume 27, Issue 11 Virginia Register of Regulations January 31, 2011

1053 B. The requirements of this article shall not apply to a particular major stationary source with respect to the use of an alternative fuel or raw material if the following conditions
are met: 1. The owner demonstrates to the board that, as a result of trial burns at the owner's facility or other facilities or other sufficient data, the emissions resu lting from the use of the alternative fuel or raw material supply are decreased. No demonstration will be required for the use of processed animal fat, processed fish oil, processed vegetable oil, distillate oil, or any mixture th ereof in place of the same quantity of residual o il to fire industrial boilers.

2. The use of an alternative fuel or raw material would not be subject to review under this article as a major modification.

VA.R. Doc. No. R11-2564; Filed January 6, 2011, 3:34 p.m. Final Regulation

REGISTRAR'S NOTICE: The following regulatory action is exempt from the Administrative Process Act in accordance with § 2.2-4006 A 4 c of the Code of Virginia, which excludes regulations that are necessary to meet the requirements of federal law or regulations provided such regulations do not differ materially from those required by federal law or regulation. The State Air Pollution Control Board will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision.
Title of Regulation: 9VAC5-151. Regulation for Transportation Conformity (Rev. E10) (amending 9VAC5-151-40, 9VAC5-151-70). Statutory Authority: § 10.1-1308 of the Code of Virginia; § 176(c) of the federal Clean Air Act.

Effective Date: March 2, 2011.
Agency Contact: Mary E. Major, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephon e (804) 698-44 23, FAX (804) 698-4510, or email mary.maj or@deq.virginia.gov.
Summary: This regulation requires t hat transportation plans, programs, and projects conform to state air quality implementation plans and establishes the criteria and procedures for determining whether they do. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of th e national ambien t air quality standards. In particular, 9VAC5-151-70 outlines specifically how the various government agencies, federal, state and local, will interact an d consult with each other and the public in developing transportation plans and projects. The U.S. Environmental Protection Agency (EPA) promulgated amendments to the federal transportation regulation on March 24, 201 0 (75 FR 14260). Under 40 CFR 51.390, Virginia is required to submit to the EPA a revision to the SIP that establishes conformity criteria and procedures consistent with the transportation conformity regulation promulgated by EPA at 40 CFR Part 93. In order to implement the feder al transportation conformity requirements, the Virg inia regulation must reflect the recent revisions made to the federal regulations. This regulation is amended to incl ude the 2010 CFR revisions.

Part III Criteria and Procedures fo r Making Conformity Determinations

9VAC5-151-40. General.

The Environmental Protectio n Agency (EPA) regulations promulgated at 40 CFR Part 93, Subpart A (Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 USC or the Federal Transit Laws) and designated in 9VAC5-151- 50 are incorporated by reference into this chapter as amended by the word or phrase substitutions given in 9VAC5- 151-60. The 40 CFR section numbers appearing in 9VAC 5-151-50 iden tify the specific provisions incorpo rated by reference. The specific version of the provisions in corporated by reference shall be that contained in the CFR (2008) (2010) in effect July 1, 2008 2010

. 9VAC5-151-70. Consultation.

A. The MPOs, LPOs, DEQ, VDOT and VDRPT shall undertake the procedures prescribe d in this section for interagency consultation, co nflict resolution and public consultation with each other and with local or regional offices of EPA, FHWA, and FTA on the development of control strategy implementation plan revisions, the list of TCMs in the applicable implementati on plan, transp ortation plans, TIPs, and associated conformity determinations required by this chapter.

B. Until EPA grants approval of this chapter, the MPOs, and VDOT and VDRPT, prior to making conformity determinations, shall prov ide reasonable opportunity for consultation with LPOs, DEQ and EPA on the issues in subdivision D 1 of this section.

C. The provisions of this subsection shall be followed with regard to general factors associated with interagency consultation. 1. Representatives of the MPOs, VDOT, VDRPT, FHWA, and FTA shall undertake an interagency consultation process, in accordance with subdivisions 1 and 3 of this subsection and subsection D of this section, with the LPOs, DEQ and EPA on the deve lopment of implementation

# Regulations

Volume 27, Issue 11 Virginia Register of Regulations January 31, 2011

1054 plans, transportation plans, TIPs, any revisions to the preceding documents, and associated conformity determinations.

a. MPOs, or their designee, shall be the lead agencies responsible for preparing the final document or decision and for assuring the adequ acy of the interagency consultation process with respect to the development of the transportation plan, the TIP, and any amendments or revisions thereto. In the case of nonmetropolitan areas, VDOT shall be the lead agency responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process with respect to the development of the statewide transportation plan, th e statewide TIP, and any amendments or revisions thereto. The MPOs shall be the lead agencies responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process with respect to any determinations of conformity under this chapter for which the MPO is responsible.

b. It shall be the affirmativ e responsibility of the lead agency to initiate the process by notifying other participants, convene meetings, assure that all relevant documents and information are supplied to all participants in the consultation process in a timely manner, prepare summaries of consultation meetings, maintain a written record of the consultation process, provide final documents and supporting information to each agency after approval or adoption, and to assure the adequacy of the interagency consultation process with respect to the subject document or decision. c. Regular consultation on major activities (such as the development of a transportation plan, the development of a TIP, or any determinati on of conformity on transportation plans or TIPs) sh all include meetings beginning on a date determined by the lead agency to be adequate to meet the date a final document is required and continuing at frequency mu tually determined by the affected agencies. In addition, techni cal meetings shall be convened as necessary. d. Each lead agency in the consultation process shall confer with all other agencies identified under subdivision 1 of this subsection with an interest in the document to be developed, provide all information to those agencies needed for meaningful input, solicit early and continuing input from those agencies, and prior to taking any action, consider the views of each agency and respond to those views in a timely, substantive written manner prior to any final decision on the documents. The views and written responses shall be made part of the record of any decision or action. e. It shall be the responsibility of each agency specified in subdivision 1 of this sub section, when not fulfilling the responsibilities of lead agency, to conf er with the lead agency and other participan ts in the consultation process, review and comment as approp riate (includ ing comments in writing) on all proposed and final documents and decisions in a timely manner, attend consultation and decision meetings, provide input on any area of substantive expertise or resp onsibility, and provide technical assistance to the lead agency or to the consultation process when requested. 2. Representatives of the LPOs, DEQ, and EPA shall undertake an interagency consultation process, in accordance with this subdivision and subdivision 3 of this subsection, with MPOs, VDOT , VDRPT, FHWA, and FTA on the development of control strategy implementation plan revision s, the list of TCMs in the applicable implementation plan, and any revisions to the preceding documents.

a. The DEQ, in conjunction withthe LPOs, shall be the lead agency responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process with respect to the development of control strate gy implement ation plan revisions, the cred its associated with the list of TCMs in the applicable implementation plan, and any amendments or revisions thereto.

b. It shall be the affirmativ e responsibility of the lead agency to initiate the process by notifying other participants, convene meetings, assure that all relevant documents and information are supplied to all participants in the consultation process in a timely manner, prepare minutes of consultation meetings, maintain a written record of the consultation process, provide final documents and supporting information to each agency after approval or adoption, and to assure the adequacy of the interagency consultation process with respect to the subject document or decision. c. Regular consultation on the development of any control strategy implementa tion plan revision shall include meetings beginning on a date determined by the lead agency to be adequate to meet the date a final document is required and continuing at frequency mutually determined by the affected agencies. In addition, technical meetings shall be convened as
necessary. d. Each lead agency in the consultation process shall confer with all other agencies identified under subdivision 1 of this subsection with an interest in the doc ument to be developed, provide all information to those agencies needed for meaningful input, solicit early and continuing input from those agencies, and prior to taking any action, consider the views of each agency and respond to those views in a timely, substantive written manner prior to any final decision on the documents. The

# Regulations

Volume 27, Issue 11 Virginia Register of Regulations January 31, 2011

1055 views and written responses shall be made part of the record of any decision or action. e. It shall be the responsibility of each agency specified in subdivision 1 of this sub section, when not fulfilling the responsibilities of lead agency, to conf er with the lead agency and other participan ts in the consultation process, review and comment as approp riate (includ ing comments in writing) on all proposed and final documents and decisions in a timely manner, attend consultation and decision meetings, provide input on any area of substantive expertise or resp onsibility, and provide technical assistance to the lead agency or to the consultation process when requested. 3. The specific roles an d responsibilities of various participants in the interagency consultation process shall be as follows:

a. The MPOs shall be responsible for the following: (1) Developing metropolitan transportation plans and TIPs in accordance with 23 CFR Part 450 and 49 CFR Part 613 and the Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (Public Law No. 109-59). (2) Adopting conformity determinations in conjunction with the adoption of transportation plans and TIPs and any revisions to the documents. (3) In cooperation with VDOT, with assistance from VDRPT: (a) Developing conformity assessments and associated documentation. (b) Evaluating potential TCM projects and impacts. (c) (i) Developing or approving transportation and related socio-economic data and planning assumptions, or both, and (ii) providing the data an d assumptions for use in air quality analysis for implementatio n plan tracking and conformity of transportation plans, TIPs and projects. (d) Monitoring regionally sign ificant projects. (e) Providing technical and policy input into the development of emissions budgets. (f) Assuring the proper completion of transportation modeling, regional emissions analyses and documentation of timely im plementation of TCMs needed for conformity assessments. (g) Involving the DEQ and LPOs continuous ly in the
process. (h) Consulting with FHWA and FTA on (i) timely action on final findings of conformity, after consultation with other agencies as provided in this section; and (ii) guidance on conformity and th e transportation planning process to agencies in interagency consultation. (i) Consulting with EPA on (i) review and approval of updated motor vehicle em issions factors, emission inventories and budgets; and (ii) guidance on conformity criteria and procedures to the agencies involved in the interagency consultation process.
b. The VDOT, with assistance from the VDRPT, shall be responsible for the following: (1) Developing statewide transportation plans and statewide TIPs. (2) Providing demand forecasting and on-road mobile source emission inventories. (3) Circulating draft and fi nal project environmental documents to other agencies. (4) Convening air quality technical review meetings on specific projects as needed or when requested by other agencies. (5) In cooperation with the MPOs: (a) Developing conformity assessments and associated documentation. (b) Evaluating potential TCM projects and impacts. (c) (i) Developing or approving transportation and related planning assumptions, or both, and (ii) providing the data and assumptions for use in air quality analysis for implementation plan tracking and conformity of transportation plans, TIPs and projects. (d) Monitoring regionally sign ificant projects. (e) Providing technical and policy input into the development of emissions budgets. (f) Assuring the proper completion of transportation modeling, regional emissions analyses and documentation of timely implementation of TCMs need for conformity assessments. (g) Involving the DEQ and LPOs continuous ly in the
process. (h) Consulting with FHWA and FTA on (i) timely action on final findings of conformity, after consultation with other agencies as provided in this section; and (ii) guidance on conformity and th e transportation planning process to agencies in interagency consultation. (i) Consulting with EPA on (i) review and approval of updated motor vehicle em issions factors, emission inventories and budgets; and (ii) guidance on conformity criteria and procedures to the agencies involved in the interagency consultation process. c. The LPOs shall be responsible for the following:

# Regulations

Volume 27, Issue 11 Virginia Register of Regulations January 31, 2011

1056 (1) Developing emissions inve ntories and budgets. (2) Developing control strategy implementation plan revisions and maintenance plans. (3) Providing a staff liaison to the MPOs for conformity and to be responsive to MPO requests for information and technical guidance. (4) Involving the MPOs, VDOT AND VDRPT continuously in the process. d. The DEQ shall be responsible for the following: (1) Developing emissions inve ntories and budgets. (2) Tracking attainment of air quality standards, and emission factor model updates. (3) Gaining final approval at state level for control strategy implementation pl an revisions and maintenance plans. (4) Providing a staff liaison to the LPOs for conformity and to be responsive to LPO requests for information and technical guidance. (5) Involving the LPOs continuously in the process. e. The FHWA and FTA shall be responsible for the following: (1) Assuring timely action on final findings of conformity, after consultation with other agencies as provided in this section. (2) Providing guidance on conformity and the transportation planning process to agencies in interagency consultation. f. The EPA shall be responsible for the following: (1) Reviewing and approvi ng updated motor vehicle emissions factors. (2) Providing guidance on conformity criteria and procedures to agencies in interagency consultation. (3) Assuring timely action on conformity analysis and findings and implementati on plan revisions. 4. The MPOs, LPOs, DEQ, VDOT and VDRPT may enter into agreements to set forth specific consultation procedures in more detail that are not in conflict with this section. D. The provisions of this subsection shall be followed with regard to specific processes asso ciated with interagency consultation. 1. An interagency consultation process involving the MPOs, LPOs, DEQ, VDOT, VDRPT, EPA, FHWA, and FTA shall be undertaken for the following: a. Evaluating and choosing each model (or models) andassociated methods and assumptions to be used in hotspot analyses and regional emission analyses, including vehicle miles traveled (VMT) forecasting, to be initiated by VDOT, in consultation with the MPOs, and conducted in accordance with subdivisions C 1 and 3 of this section. b. Determining which transp ortation projects should be considered "regionally significan t" for the purpose of regional emission analysis (in addition to those functionally classified as principal arterial or higher; or fixed guideway systems or extensions that offer an alternative to regional hi ghway travel), and which projects should be consider ed to have a significant change in design concept and scope from the transportation plan or TIP, to be initiated by VDOT, in consultation with the MP Os, and conducted in accordance with subdivisions C 1 and 3 of this section. c. Evaluating whether projects otherwise exempted from meeting the requirements of 40 CFR 93.126 and 40 CFR 93.127 should be treated as nonexempt in cases where potential adverse emissions im pacts may exist for any reason, to be initiated by VDOT, in consultation with the MPOs, and conducted in accordance with subdivisions C 1 and 3 of this section. d. Making a determination, as required by 40 CFR 93.113(c)(1), whether past obst acles to implementation of TCMs that are behind the schedule established in the applicable implementation pl an have been identified and are being overcome, and whether state and local agencies with influence over approvals or funding for TCMs are giving maximum priority to approval or funding for TCMs, to be initiated by VDOT as lead agency, in consultation with the MPOs and VDRPT, and conducted in accordance with subdivisions C 1 and 3 of this section. This consultation process shall also consider whether delays in TCM implementation necessitate revisions to the applicable implementation plan to remove TCMs or substitute TCMs or other emission reduction measures. e. Notifying all parties to th e consultation process of transportation plan or TIP amendments that merely add or delete exempt projects listed in 40 CFR 93.126 or 40 CFR 93.127, to be in itiated by VDOT in consultation with the MPOs, and conducted in accordance with subdivisions C 1 and 3 of this section. f. Choosing conformity tests and methodologies for isolated rural nonattainment and maintenance areas, as required by 40 CFR 93.109(l)(2)(iii) 40 CFR 93.109(n)(2)(iii) , to be initiated by VDOT, in consultation with the MPOs, and in accordance with subdivisions C 1 and 3 of this section. g. Determining what forecast of vehicle miles traveled (VMT) to use in establishing or tracking emissions

# Regulations

Volume 27, Issue 11 Virginia Register of Regulations January 31, 2011

1057 budgets, developing transportation plans, TIPs, or control strategy implementation plan revisions, or making conformity determinations, to be initiated by VDOT, in consultation with the MPOs, and in accordance with subdivisions C 1 and 3 of this section. 2. An interagency consultation process in accordance with subsection C of this section involving the MPOs, LPOs, DEQ, VDOT, and VDRPT shall be undertaken for the following:

a. Evaluating events that may trigger new conformity determinations in addition to those triggering events established by 40 CFR 93.104 , to be initiated by VDOT, in consultation withthe MPOs and DEQ, and conducted in accordance with subdivisions C 1 and 3 of this section. b. Consulting on emissi ons analysis for transportation activities that cross th e borders of MPOs or nonattainment areas, to be initiated by VDOT in consultation with the MP Os, and conducted in accordance with subdivisions C 1 and 3 of this section. 3. Where the metropolitan planning area does not include the entire nonattainment or maintenance area, an interagency consultation process in accordance with subdivisions C 1 and 3 of this section involving the MPOs and VDOT shall be undertaken for cooperative planning and analysis for purposes of determining conformity of all projects outside the metropolitan area and within the nonattainment or maintenan ce area, to be initiated by VDOT, in consultation with the MPOs, and in accordance with subdivisions C 1 and 3 of this section. 4. To assure that plans for construction of regionally significant projects that are not FHWA or FTA projects (including projects for which alternative locations, design concept and scope, or the no-build option are still being considered), including all those by recipients of funds designated under Title 23 USC or the Federal Transit Act, are disclosed to the MPO on a regular basis, and to assure that any changes to those plans are immediately disclosed, an interagency consultation process shall be undertaken, to be initiated by the MPO, in consultation with VDOT, and conducted in accordance with subdivisions C 1 and 3 of this section involving the MPO, VDOT, VDRPT, and recipients of funds designated under Title 23 USC or the Federal Transit Act. 5. An interagency consultation process in accordance with subsections C 1 and 3 of th is section involving the MPOs and other recipients of funds designated under Title 23 USC or the Federal Transit Act shall be undertaken for developing assumptions regarding the location and design concept and scope of projects th at are disclosed to the MPO as required by subdivis ion 4 of this subsection but whose sponsors have not yet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of 40 CFR 93.122, to be initiated by the MPO, inconsultation with VDOT, and conducted in accordance with subdivisions C 1 and 3 of this section. 6. An interagency consultation process in accordance with subdivisions C 1 and 3 of th is section shall be undertaken for the design, schedule, and funding of research and data collection efforts and m odel developments in regional transportation (such as household or travel transportation surveys) to be initiated by the MPO, in consultation with VDOT, and conducted in accordance with subdivisions C 1 and 3 of this section. E. The provisions of this subsection shall be followed with regard to conflict resolution associated with interagency consultation. 1. Unresolved conflicts among state agencies, or between state agencies and the MPO(s), or among MPO member jurisdictions, shall be identifiedby an MPO or agency in writing to the other MPO, DEQ, VDOT, or VDRPT, with copies to FHWA, FTA and EPA. The MPO's or agency's written notice shall:

a. Explain the nature of the conflict; b. Review options for resolving the conflict; c. Describe the MPO's or agency's proposal to resolve the conflict; d. Explain the consequences of not reaching a resolution; and e. Request that comments on the matter be received within two weeks.

2. If the above action does no t result in a resolution to the conflict, either of the fo llowing shall apply:

a. If the conflict is between the MPOs or between the MPO(s) and VDOT or VDRPT or both, then the parties shall follow the coordination procedures of 23 CFR 450.210. b. If the conflict is between the MPO(s) or VDOT or VDRPT and the DEQ and the conflict can not be resolved by the affected agency heads, then the DEQ Director may elevate the conflict to the Governor in accordance with the procedures of subdivision 3 of this section. If the DEQ Director does not appeal to the Go vernor within 14 days as pr ovided in subdivision 3 a of this subsection, the MPO or VDOT or VDRPT may proceed with its final conformity determination. 3. Appeals to the Governor by the DEQ Director under the provisions of subdivision 2 b of this subsection shall be in accordance with the following procedures:

a. The DEQ Director has 14 calendar days to appeal to the Governor after the MPO(s) or VDOT or VDRPT has

# Regulations

Volume 27, Issue 11 Virginia Register of Regulations January 31, 2011

1058 notified the DEQ Director of the agency's or MPO's resolution of DEQ's comments. The notification to theDEQ Director shall be in writing and shall be handdelivered. The 14-day clock shall commence when VDOT or VDRPT or the MPO has confirmed receipt by the DEQ Director of the agency's or MPO's resolution of the DEQ's comments. b. The appeal to the Governor shall consist of the following: the conformity d etermination and any supporting documentation; DEQ's comments on the determination; the MPO(s) or VDOT or VDRPT resolution of DEQ's comme nts; and DEQ's appeal document. c. The DEQ shall provide a complete appeal package to the MPO, VDOT and VDRPT within 24 hours of the time the appeal is filed with the Governor's Office.

d. If the Governor does not concur with the conformity determination, he may direct revision of the applicable implementation plan, revisionof the planned program of projects, revision of the conformity analysis or any combination of the preceding.

e. If the Governor conc urs with the conformity determination made by the MPO and VDOT, the MPO and VDOT may proceed with the final conformity determination. f. The Governor may delegate his role in this process, but not to the agency head or staff of DEQ, VDOT or VDRPT or the Commonwealth Board of Transportation. 4. Nothing in this section shall prevent the state agencies and MPOs from making efforts upontheir own initiative to obtain mutual conflict resolution through conference or other appropriate means. F. The provisions of this subsection shall be followed with regard to public consultation.

1. The MPOs shall establish a proactive involvement process that provides reasonable opportunity for review and comment by, at a minimum, providing reasonable public access to technical and policy information considered by the MPO at the beginning of the public comment period and prior to taking formal action on a conformity determination for all transportation plans and TIPs, consistent with the requirements of 23 CFR 450.316(a). 2. The MPOs shall specifically address in writing public comments regarding plans for a regionally significant project, not receiving FHWA or FTA funding or approval, and how the project is properly reflected in the emission analysis supporting a proposed conformity finding for a transportation plan or TIP. 3. The MPOs shall also provide an oppo rtunity for public involvement in conformity determinations for projects where otherwise required by law.

VA.R. Doc. No. R11-2517; Filed January 6, 2011, 3:33 p.m. Final Regulation

REGISTRAR'S NOTICE: The following regulatory action is exempt from the Administrative Process Act in accordance with § 2.2-4006 A 4 c of the Code of Virginia, which excludes regulations that are necessary to meet the requirements of federal law or regulations, provided such regulations do not differ materially from those required by federal law or regulation. The State Air Pollution Control Board will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision.
Title of Regulation: 9VAC5-160. Regu lation for General Conformity (Rev. F10) (a mending 9VAC5-160-20, 9VAC5-160-30, 9VAC5-160-110 through 9VAC5-160-190; adding 9VAC5-160-181 through 9VAC5-160-185; repealing 9VAC5-1 60-200). Statutory Authority: § 10.1-1308 of th e Code of Virginia.

Effective Date: March 2, 2011.
Agency Contact: Karen G. Sabasteanski, Policy Analyst, Department of Environm ental Quality, P.O. Box 10009, Richmond, VA 23240, telephon e (804) 698-44 26, FAX (804) 698-4510, TTY (804) 698-4021, or email karen.sabasteanski@deq. virginia.gov.
Summary: The Virginia general con formity regulation is revised to meet new federal requirements. The federal Clean Air Act requires that federal agencies must make determinations that general federal actions, such as prescribed burning, military base closings, and real estate developments, conform to Virginia's state implementation plan (SIP) fo r air quality. On July 17, 2006 (71 FR 40420), the U.S. Environmenta l Protection Agency (EPA) revised its general conformity regulations to add PM 2.5 de minimis emission levels for general conformity applicability. On April 5, 2010 (75 FR 17254), EPA further revised its general conformity requirements to address a nu mber of implementation issues and improve the program's ability to facilitate federal agency compliance with conforming their activities to the SIPs, thereby pr eventing violations of the national ambient air quality standards. EPA deleted 40 CFR 51.850 and 40 CFR 51 .51.852 through 51.860, since those sections merely repeated the language in 40 CFR 93.150 and 40 CFR 93.152 through 93.160. EPA then included a requirement in 40 CFR 51.851 that the general conformity SIP mu st meet the requirements in 40