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 participation activities and compliance with state 

administrative procedures is provided. 

PUBLIC PARTICIPATION ACTIVITIES

As required by 40 CFR 51.102(a), a public comment period to provide the opportunity 

to submit written comments concerning a proposed revision to the Commonwealth of 

Virginia State Implementation Plan was 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 request that a hearing be held pursuant to 40 CFR 

51.102(a); no such request was received. The attached 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. Environmental 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 Appendix 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 Control 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 under Virginia law, and submitted to the 

Virginia Registrar on behalf of the board by the 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 incorporation by reference into the 

Commonwealth of Virginia State Implementation 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 attain and 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 regulation 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 amendments 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 date, 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 United States Department of 

Transportation must demonstrate that such plans, programs, 

and projects conform to Virginia's SIP. "Conformity" means 

that the activity conforms to the SIP's purpose 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 criteria 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 conformity 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 

PM2.5 NAAQS and revoked the annual PM10 NAAQS (71 FR 

61144). However, the October 2006 rule did not revoke the 

1997 annual or 24-hr PM2.5 NAAQS; therefore, the 

designations for the 2006 PM2.5 NAAQS remain separate 

from the existing designations for the 1997 PM2.5 NAAQS. 

Transportation conformity applies for the NAAQS for which 

an area is designated nonattainment; the transportation 

conformity regulation must address all PM2.5 designations. 

The federal transportation conformity regulations address the 

following: (i) determining the baseline year for certain 2006 

PM2.5 nonattainment areas, (ii) regional conformity tests in 

2006 PM2.5 nonattainment areas that do not have adequate or 

approved SIP budgets for the 1997 PM2.5 NAAQS, (iii) 

regional conformity tests in 2006 PM2.5 areas that have 1997 

PM2.5 SIP budgets, (iv) other conformity requirements for 

2006 PM2.5 areas, (v) transportation conformity in 

PM10 nonattainment and maintenance areas in light of the 

revocation of the annual PM10 NAAQS, and (vi) response to 

the December 2007 hot-spot court decision. 

In order to implement the federal transportation conformity 

requirements, the Virginia regulation 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 requirements 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 provisions 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 signed 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.va.us/air/permitting/planotes.html). The 

documents may also be obtained by contacting the DEQ 

representative named below. The 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 Floor, 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 Office, 5636 Southern Blvd., 

Virginia Beach, VA, telephone (757) 518-2000. 

Contact Information: Mary E. 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 Virginia, 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 requirements 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 filed, or under which a company 

may be exempt from filing a report. The Virginia total annual 

written premiums for all accident 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 inability to file the reports 

electronically. 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.gov/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 preparation 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 required data, or other such 

reasons will not be accepted for not submitting a complete 

and accurate report in a timely manner. 

Correspondence regarding reporting 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.virginia.gov. System related 

questions or problems should be directed to Andrew Iverson, 

Insurance Analyst, Bureau of Insurance, 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 resulting 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 thereof in place of the same 

quantity of residual oil 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, telephone (804) 698-4423, FAX (804) 

698-4510, or email mary.major@deq.virginia.gov. 

Summary:

This regulation requires that 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 the national ambient air quality 

standards. In particular, 9VAC5-151-70 outlines 

specifically how the various government agencies, federal, 

state and local, will interact and 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, 2010 (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 federal transportation conformity 

requirements, the Virginia regulation must reflect the 

recent revisions made to the federal regulations. This 

regulation is amended to include the 2010 CFR revisions.

Part III 

Criteria and Procedures for Making Conformity 

Determinations 

9VAC5-151-40. General. 

The Environmental Protection 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 9VAC5-151-50 identify the specific 

provisions incorporated by reference. The specific version of 

the provisions incorporated 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 prescribed in this section for 

interagency consultation, conflict 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 implementation plan, transportation 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 provide 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 development 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 adequacy 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, the 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 affirmative 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 determination of conformity on 

transportation plans or TIPs) 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 

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 subsection, when not fulfilling the 

responsibilities of lead agency, to confer with the lead 

agency and other participants in the consultation process, 

review and comment as appropriate (including 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 responsibility, 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 revisions, the list of TCMs in the 

applicable implementation plan, and any revisions to the 

preceding documents. 

a. The DEQ, in conjunction with the 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 strategy implementation plan 

revisions, the credits associated with the list of TCMs in 

the applicable implementation plan, and any amendments 

or revisions thereto. 

b. It shall be the affirmative 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 implementation 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 

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 
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 subsection, when not fulfilling the 

responsibilities of lead agency, to confer with the lead 

agency and other participants in the consultation process, 

review and comment as appropriate (including 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 responsibility, and provide 

technical assistance to the lead agency or to the 

consultation process when requested. 

3. The specific roles and 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 and assumptions for use in air 

quality analysis for implementation plan tracking and 

conformity of transportation plans, TIPs and projects. 

(d) Monitoring regionally significant 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 

needed for conformity assessments. 

(g) Involving the DEQ and LPOs continuously 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 the transportation planning 

process to agencies in interagency consultation. 

(i) Consulting with EPA on (i) review and approval of 

updated motor vehicle emissions 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 final 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 significant 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 continuously 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 the transportation planning 

process to agencies in interagency consultation. 

(i) Consulting with EPA on (i) review and approval of 

updated motor vehicle emissions 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 inventories 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 inventories 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 plan 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 approving 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 implementation 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 associated 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) and 

associated 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 transportation projects should be 

considered "regionally significant" 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 highway travel), and which 

projects should be considered 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 MPOs, 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 impacts 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 obstacles to implementation 

of TCMs that are behind the schedule established in the 

applicable implementation plan 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 the 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 initiated 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 with the MPOs and DEQ, and conducted 

in accordance with subdivisions C 1 and 3 of this section. 

b. Consulting on emissions analysis for transportation 

activities that cross the borders of MPOs or 

nonattainment areas, to be initiated by VDOT in 

consultation with the MPOs, 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 maintenance 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 this 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 that are disclosed to the 

MPO as required by subdivision 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, in consultation 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 this section shall be undertaken 

for the design, schedule, and funding of research and data 

collection efforts and model 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 identified by 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 not result in a resolution to the 

conflict, either of the following 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 

Governor within 14 days as provided 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 the 

DEQ 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 determination and any 

supporting documentation; DEQ's comments on the 

determination; the MPO(s) or VDOT or VDRPT 

resolution of DEQ's comments; 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, revision of the planned program of 

projects, revision of the conformity analysis or any 

combination of the preceding. 

e. If the Governor concurs 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 upon their 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 opportunity 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. Regulation for General 

Conformity (Rev. F10) (amending 9VAC5-160-20, 

9VAC5-160-30, 9VAC5-160-110 through 9VAC5-160-190; 

adding 9VAC5-160-181 through 9VAC5-160-185; 

repealing 9VAC5-160-200). 

Statutory Authority: § 10.1-1308 of the Code of Virginia. 

Effective Date: March 2, 2011. 

Agency Contact: Karen G. Sabasteanski, Policy Analyst, 

Department of Environmental Quality, P.O. Box 10009, 

Richmond, VA 23240, telephone (804) 698-4426, FAX (804) 

698-4510, TTY (804) 698-4021, or email 

karen.sabasteanski@deq.virginia.gov. 

Summary:

The Virginia general conformity 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) for air quality. On July 17, 

2006 (71 FR 40420), the U.S. Environmental Protection 

Agency (EPA) revised its general conformity regulations 

to add PM2.5 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 number of implementation 

issues and improve the program's ability to facilitate 

federal agency compliance with conforming their 

activities to the SIPs, thereby preventing 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 must meet the requirements in 40