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\F10-SIP-2.DOC
GENERAL NOTICES/ERRATA 

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

2107 

GENERAL NOTICES/ERRATA 

AIR POLLUTION CONTROL BOARD 

Public Comment Period - Proposed State 

Implementation Plan Revision 

(General 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 Regulations for General Conformity (9VAC5-

20-21, Rev. F10). 

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 

general conformity, 9VAC5-160. The major provisions of the 

proposal are summarized as follows: The federal Clean Air 

Act requires that federal plans, programs, and projects conform 

with state and federal air quality implementation plans. That is, 

federal agencies must make determinations that general federal 

actions, such as prescribed burning, military base closings, and 

real estate developments, conform with Virginia's SIP. On 

July 17, 2006 (71 FR 40420), 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 in order to address a number of implementation 

issues, and to 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 (NAAQS). 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 CFR Part 93, subpart 

B, which were in turn revised to effect the needed program 

changes. The Virginia general conformity regulation must 

meet these new federal requirements. 

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 

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. 
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 
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 
Regulations 

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

1059

CFR Part 93, subpart B, which were in turn revised to 

effect the needed program changes. 

9VAC5-160-20. Terms defined. 

"Administrator" means the Administrator of EPA or an 

authorized representative. 

"Affected federal land manager" means the federal agency 

or the federal official charged with direct responsibility for 

management of an area designated as class I under the federal 

Clean Air Act, and located within 100 kilometers of the 

proposed federal action. 

"Ambient air" means that portion of the atmosphere, 

external to buildings, to which the general public has access. 

"Applicability analysis" means the process of determining if 

the federal action shall be supported by a conformity 

determination.

"Applicable implementation plan" means the portion or 

portions of the state implementation plan, or the most recent 

revision thereof, which has been approved under § 110(k) of 

the federal Clean Air Act, or a federal implementation plan

promulgated under § 110(c) of the federal Clean Air Act, or 

promulgated or approved pursuant to regulations promulgated 

under § 301(d) of the federal Clean Air Act and which 

implements the relevant requirements of the federal Clean Air 

Act. 

"Areawide air quality modeling analysis" means an 

assessment on a scale that includes the entire nonattainment 

area or maintenance area which uses using an air quality 

dispersion model or photochemical grid model to determine 

the effects of emissions on air quality, for example, an 

assessment using EPA's community multi-scale air quality 

(CMAQ) modeling system. 

"Board" means the State Air Pollution Control Board or its 

designated representative. 

"Cause or contribute to a new violation" means a federal 

action that: 

1. Causes a new violation of a national ambient air quality 

standard at a location in a nonattainment or maintenance 

area which would otherwise not be in violation of the 

standard during the future period in question if the federal 

action were not taken; or 

2. Contributes, in conjunction with other reasonably 

foreseeable actions, to a new violation of a national 

ambient air quality standard at a location in a 

nonattainment or maintenance area in a manner that would 

increase the frequency or severity of the new violation. 

"Caused by" means, as used in the terms "direct emissions" 

and "indirect emissions," emissions that would not otherwise 

occur in the absence of the federal action. 

"Confidential business information" or "CBI" means 

information that has been determined by a federal agency, in 

accordance with its applicable regulations, to be a trade 

secret, or commercial or financial information obtained from 

a person and privileged or confidential and is exempt from 

required disclosure under the federal Freedom of Information 

Act (5 USC § 552(b)(4)).

"Conformity determination" means the evaluation (made 

after an applicability analysis is completed) that a federal 

action conforms to the applicable implementation plan and 

meets the requirements of this regulation.

"Conformity evaluation" means the entire process from the 

applicability analysis through the conformity determination 

that is used to demonstrate that the federal action conforms to 

the requirements of this regulation.

"Consultation" means that one party confers with another 

identified party, provides all information to that party needed 

for meaningful input, and, prior to taking any action, 

considers the views of that party and responds to those views 

in a timely, substantive, written manner prior to any final 

decision on the action. The views and written response shall 

be made part of the record of any decision or action. 

"Continuing program responsibility" means a federal agency 

has responsibility for emissions caused by (i) actions it takes 

itself; or (ii) actions of nonfederal entities that the federal 

agency, in exercising its normal programs and authorities, 

approves, funds, licenses, or permits, provided the agency can 

impose conditions on any portion of the action that could 

affect the emissions.

"Continuous program to implement" means that the federal 

agency has started the action identified in the plan and does 

not stop the actions for more than an 18-month period, unless 

it can demonstrate that such a stoppage was included in the 

original plan.

"Control" means the ability to regulate the emissions from 

the action. The ability to regulate may be demonstrated 

directly, such as through the use of emission control 

equipment, or indirectly, such as through the implementation 

of regulations or conditions on the nature of the activity that 

may be established in permits or approvals or by the design of 

the action. An example of control includes the ability of a 

federal agency to control the level of vehicle emissions by 

controlling the size of a parking facility and setting 

requirements for employee trip reductions. 

"Criteria pollutant" means any pollutant for which there is 

established a national ambient air quality standard in 40 CFR 

Part 50. 

"Department" means any employee or other representative 

of the Virginia Department of Environmental Quality, as 

designated by the director. 
Regulations 

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

1060 

"Direct emissions" means those emissions of a criteria 

pollutant or its precursors that are caused or initiated by the 

federal action and originate in a nonattainment or 

maintenance area and occur at the same time and place as the 

action and are reasonably foreseeable. 

"Director" means the Director of the Virginia Department of 

Environmental Quality. 

"Emergency" means, in the context of 9VAC5-160-30, a 

situation where extremely quick action on the part of federal 

agencies involved is needed and where the timing of the 

federal activities makes it impractical to meet the 

requirements of this regulation, such as natural disasters like 

hurricanes or earthquakes, civil disturbances such as terrorist 

acts, and military mobilizations. 

"Emergency" means, in the context of 9VAC5-160-40, a 

situation that immediately and unreasonably affects, or has 

the potential to immediately and unreasonably affect, public 

health, safety or welfare; the health of animal or plant life; or 

property, whether used for recreational, commercial, 

industrial, agricultural or other reasonable use. 

"Emissions budgets" are means those portions of the total 

allowable emissions defined in the applicable implementation 

plan for a certain date for the purpose of meeting reasonable 

further progress milestones or attainment or maintenance 

demonstrations, for any criteria pollutant or its precursors, 

specifically allocated by the applicable implementation plan 

to mobile sources, to any stationary source or class of 

stationary sources, to any federal action or any class of action, 

to any class of area sources, or to any subcategory of the 

emissions inventory. The allocation system shall be specific 

enough to assure meeting the criteria of § 176(c)(1)(B) of the 

federal Clean Air Act. An emissions budget may be expressed 

in terms of an annual period, a daily period, or other period 

established in the applicable implementation plan. 

"Emissions inventory" means a listing of information on the 

location, type of source, type and quantity of pollutant 

emitted as well as other parameters of the emissions.

"Emissions offsets" means, for the purposes of 9VAC5-160-

160, emissions reductions which are quantifiable, consistent 

with the applicable implementation plan attainment and 

reasonable future progress demonstrations, surplus to 

reductions required by, and credited to, other applicable 

implementation plan provisions, enforceable under both state 

and federal law, and permanent within the timeframe 

specified by that program. Emissions reductions intended to 

be achieved as emissions offsets under this regulation shall be 

monitored and enforced in a manner equivalent to that under 

the new source review program. 

"Emissions that a federal agency has a continuing program 

responsibility for" means emissions that are specifically 

caused by an agency carrying out its authorities, and does not 

include emissions that occur due to subsequent activities, 

unless the activities are required by the federal agency. Where 

an agency, in performing its normal program responsibilities, 

takes actions itself or imposes conditions that result in air 

pollutant emissions by a nonfederal entity taking subsequent 

actions, the emissions are covered by the meaning of a 

continuing program responsibility.

"EPA" means the United States U.S. Environmental 

Protection Agency. 

"Facility" means something that is built, installed, or 

established to serve a particular purpose; includes, but is not 

limited to, buildings, installations, public works, businesses, 

commercial and industrial plants, shops and stores, heating 

and power plants, apparatus, processes, operations, structures, 

and equipment of all types. 

"Federal action" means any activity engaged in by a federal 

agency, or any activity that a federal agency supports in any 

way, provides financial assistance for, licenses, permits, or 

approves, other than activities related to transportation plans, 

programs, and projects developed, funded, or approved under 

Title 23 USC or the Federal Transit Act (49 USC § 5301 et 

seq.). Where the federal action is a permit, license, or other 

approval for some aspect of a nonfederal undertaking, the 

relevant action is the part, portion, or phase that the 

nonfederal undertaking that requires the federal permit, 

license, or approval. 

"Federal agency" means a department, agency, or 

instrumentality of the federal government. 

"Federal Clean Air Act" means 42 USC § 7401 et seq

Chapter 85 (§ 7401 et seq.) of Title 42 of the United States 

Code. 

"Increase the frequency or severity of any existing violation 

of any standard in any area" means to cause a nonattainment 

area to exceed a standard more often, or to cause a violation 

at a greater concentration than previously existed or would 

otherwise exist during the future period in question, if the 

project were not implemented. 

"Indirect emissions" means those emissions of a criteria 

pollutant or its precursors that: 

1. Are caused or initiated by the federal action and 

originate in the same nonattainment or maintenance area, 

but may occur later in time, or may be farther removed in 

distance from the action itself but are still reasonably 

foreseeable; and at a different time or place as the action;

2. The federal agency can practicably control and will 

maintain control over due to a continuing program 

responsibility of the federal agency, including, but not 

limited to:

a. Traffic on or to, or stimulated or accommodated by, a 

proposed facility which is related to increases or other 
Regulations 

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

1061

changes in the scale or timing of operations of the 

facility;

b. Emissions related to the activities of employees of 

contractors or federal employees;

c. Emissions related to employee commutation and 

similar programs to increase average vehicle occupancy 

imposed on all employers of a certain size in the locality; 

and

d. Emissions related to the activities of contractors or 

leaseholders that may be addressed by provisions that are 

usual and customary for contracts or leases or within the 

scope of contractual protection of the interests of the 

United States That are reasonably foreseeable;

3. That the agency can practically control; and

4. For which the agency has a continuing program 

responsibility.

For the purposes of this definition, even if a federal 

licensing, rulemaking, or other approving action is a required 

initial step for a subsequent activity that causes emissions, 

such initial steps do not mean that a federal agency can 

practically control any resulting emissions.

"Lead planning organization" means the organization 

certified by the state as being responsible for the preparation 

of control strategy implementation plan revisions for 

nonattainment areas under § 174 of the federal Clean Air Act. 

The organization includes elected officials of local 

governments in the affected nonattainment area, and 

representatives of the department, the Virginia Department of 

Transportation, the metropolitan planning organizations for 

the affected area, and other agencies and organizations that 

have responsibilities for developing, submitting or 

implementing any of the plan revisions. It is the forum for 

cooperative air quality planning decision-making. 

"Local air quality modeling analysis" means assessment of 

localized impacts on a scale smaller than the entire 

nonattainment or maintenance area, including, for example, 

congested roadway intersections and highways or transit 

terminals roadways on a federal facility, which that uses an 

air quality dispersion model (e.g., Industrial Source Complex 

Model or Emission and Dispersion Model System) to 

determine the effects of emissions on air quality. 

"Maintenance area" means any geographic region of the 

United States previously an area that was designated as a

nonattainment area and subsequently has been redesignated in 

40 CFR Part 81 to attainment subject to the requirement to 

develop a maintenance plan, meeting the provisions of 

§ 107(d)(3)(E) of the federal Clean Air Act and has a 

maintenance plan approved under § 175A of the federal Clean 

Air Act. 

"Maintenance plan" means a revision to the applicable 

implementation plan, meeting the requirements of § 175A of 

the federal Clean Air Act. 

"Metropolitan planning organization" means the policy 

board of an organization designated as being responsible, 

together with the Commonwealth of Virginia, for conducting 

the continuing, cooperative, and comprehensive planning 

process under created as a result of the designation process in

23 USC § 134(d) and 49 USC 1607. 

"Milestone" means as defined in §§ 182(g) and 189(c)(1) of 

the federal Clean Air Act. A milestone consists of an 

emissions level and the date on which it is required to be 

achieved. 

"Mitigation measure" means any method of reducing 

emissions of the pollutant or its precursor taken at the 

location of the federal action and used to reduce the impact of 

the emissions of that pollutant caused by the action.

"National ambient air quality standards" means those 

standards established pursuant to § 109 of the federal Clean 

Air Act. 

"NEPA" means the National Environmental Policy Act of 

1969 as amended (42 USC § 4321 et seq.) 

"New source review (NSR) program" means a program for 

the preconstruction review and permitting of new stationary 

sources or expansions to existing ones in accordance with 

regulations promulgated to implement the requirements of 

§§ 110 (a)(2)(C), 165 (relating to permits in prevention of 

significant deterioration areas) and 173 (relating to permits in 

nonattainment areas) of the federal Clean Air Act a 

preconstruction review and permit program (i) for regulated 

air pollutants from new stationary sources or projects 

(physical changes or changes in the method of operation), (ii) 

established to implement the requirements of §§ 110 

(a)(2)(C), 112 (relating to permits for hazardous air 

pollutants), 165 (relating to permits in prevention of 

significant deterioration areas), and 173 (relating to permits in 

nonattainment areas) of the federal Clean Air Act and 

associated regulations, and (iii) Article 7 (9VAC5-80-1400 et 

seq.), Article 8 (9VAC5-80-1605 et seq.) and Article 9 

(9VAC5-80-2000 et seq.) of Part II of 9VAC5-80 (Permits 

for Stationary Sources) of the Regulations for the Control and 

Abatement of Air Pollution. 

"Nonattainment area" means any geographic region of the 

United States which has been designated as nonattainment 

under § 107 of the federal Clean Air Act for any pollutant for 

which a national ambient air quality standard exists. 

"PM10" means particulate matter with an aerodynamic 

diameter less than or equal to a nominal 10 micrometers as 

measured by the applicable reference method or an equivalent 

method. 
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"Person" means an individual, corporation, partnership, 

association, a governmental body, a municipal corporation, or 

any other legal entity. 

"Precursors of a criteria pollutant" means: 

1. For ozone, 

a. Nitrogen oxides, unless an area is exempted from 

nitrogen oxides requirements under § 182(f) of the 

federal Clean Air Act, and 

b. Volatile organic compounds; and.

2. For PM10, those pollutants described in the PM10

nonattainment area applicable implementation plan as 

significant contributors to the particulate matter PM10

levels. 

3. For PM2.5, (i) sulfur dioxide in all PM2.5 nonattainment 

and maintenance areas, (ii) nitrogen oxides in all PM2.5

nonattainment and maintenance areas unless both the 

department and EPA determine that it is not a significant 

precursor, and (iii) volatile organic compounds and 

ammonia only in PM2.5 nonattainment or maintenance 

areas where either the department or EPA determines that 

they are significant precursors.

"Reasonably foreseeable emissions" are means projected 

future direct and indirect emissions that are identified at the 

time the conformity determination is made; the location of the

such emissions is known to the extent adequate to determine 

the impact of the emissions; and the emissions are 

quantifiable, as described and documented by the federal 

agency based on its own information and after reviewing any 

information presented to the federal agency. 

"Regional water or wastewater projects" means construction, 

operation, and maintenance of water or wastewater 

conveyances, water or wastewater treatment facilities, and 

water storage reservoirs which affect a large portion of a 

nonattainment or maintenance area. 

"Regionally significant action" means a federal action for 

which the direct and indirect emissions of any pollutant 

represent 10% or more of a nonattainment or maintenance 

area's emissions inventory for that pollutant.

"Restricted information" means information that is 

privileged or that is otherwise protected from disclosure 

pursuant to applicable statutes, executive orders, or 

regulations. Such information includes, but is not limited to, 

classified national security information, protected critical 

infrastructure information, sensitive security information, and 

proprietary business information.

"Source" means any one or combination of the following: 

buildings, structures, facilities, installations, articles, 

machines, equipment, landcraft, watercraft, aircraft, or other 

contrivances which contribute, or may contribute, either 

directly or indirectly to air pollution. Any activity by any 

person that contributes, or may contribute, either directly or 

indirectly to air pollution, including, but not limited to, open 

burning, generation of fugitive dust or emissions, and 

cleaning with abrasives or chemicals. 

"Take or start the federal action" means the date that the 

federal agency signs or approves the permit, license, grant, or 

contract or otherwise physically begins the federal action that 

requires a conformity evaluation under this chapter.

"Total of direct and indirect emissions" means the sum of 

direct and indirect emissions increases and decreases caused 

by the federal action, that is, the "net" emissions considering 

all direct and indirect emissions. Any emissions decreases 

used to reduce the total shall have already occurred or shall be 

enforceable under state and federal law. The portion of 

emissions which are exempt or presumed to conform under 

9VAC5-160-30 are not included in the "total of direct and 

indirect emissions," except as provided in 9VAC5-160-30 M. 

The "total of direct and indirect emissions" includes 

emissions of criteria pollutants and emissions of precursors of 

criteria pollutants. Segmentation of projects for conformity 

analyses when emissions are reasonably foreseeable is 

prohibited. 

"Virginia Air Pollution Control Law" means Chapter 13 

(§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia. 

"Welfare" means that language referring to effects on 

welfare includes, but is not limited to, effects on soils, water, 

crops, vegetation, human-made materials, animals, wildlife, 

weather, visibility and climate, damage to and deterioration of 

property, and hazards to transportation, as well as effects on 

economic values and on personal comfort and well-being. 

Part II 

General Provisions 

9VAC5-160-30. Applicability. 

A. The provisions of this regulation shall apply in all 

nonattainment and maintenance areas for criteria pollutants 

for which the area is designated nonattainment or has a 

maintenance plan. Conformity requirements for newly 

designated nonattainment areas are not applicable until one 

year after the effective date of the final nonattainment 

designation for each national ambient air quality standard and 

pollutant in accordance with § 176(c)(6) of the federal Clean 

Air Act.

B. The provisions of this chapter apply with respect to 

emissions of the following criteria pollutants: ozone, carbon 

monoxide, nitrogen dioxide, and particles with an 

aerodynamic diameter less than or equal to a nominal 10 

micrometers (PM10), and particles with an aerodynamic 

diameter less than or equal to a nominal 2.5 micrometers 

(PM2.5). 

C. The provisions of this chapter apply with respect to 

emissions of the following precursor pollutants: 
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1. For ozone: 

a. Nitrogen oxides, unless an area is exempted from 

nitrogen oxides requirements under § 182(f) of the 

federal Clean Air Act, and 

b. Volatile organic compounds. 

2. For PM10, those pollutants described in the PM10

nonattainment area applicable implementation plan as 

significant contributors to the particulate matter PM10

levels. 

3. For PM2.5, (i) sulfur dioxide in all PM2.5 nonattainment 

and maintenance areas, (ii) nitrogen oxides in all PM2.5

nonattainment and maintenance areas unless both the 

department and EPA determine that it is not a significant 

precursor, and (iii) volatile organic compounds and 

ammonia only in PM2.5 nonattainment or maintenance 

areas where either the department or EPA determines that 

they are significant precursors.

D. Conformity determinations for federal actions related to 

transportation plans, programs, and projects developed, 

funded, or approved under Title 23 USC or the Federal 

Transit Act (49 USC § 5301 et seq.) shall meet the procedures 

and criteria of the Regulation for Transportation Conformity 

(9VAC5-150-10 et seq.) 9VAC5-151 (Regulation for 

Transportation Conformity), in lieu of the procedures set 

forth in this chapter. 

E. For federal actions not covered by subsection D of this 

section, a conformity determination is required for each 

criteria pollutant or precursor where the total of direct and 

indirect emissions of the criteria pollutant or precursor in a 

nonattainment or maintenance area caused by a federal action 

would equal or exceed any of the rates in subdivision 1 or 2 

of this subsection. 

1. For the purposes of this subsection, the following rates 

apply in nonattainment areas: 

 Tons per year 

Ozone (VOCs or NOX): 

Serious nonattainment areas 50 

Severe nonattainment areas 25 

Extreme nonattainment areas 10 

Other ozone nonattainment areas 

outside an ozone transport region 

100 

 

Marginal and moderate Other ozone

nonattainment areas inside an ozone 

transport region: 

 

VOC 50 

NOX 100 

 

Carbon monoxide, all nonattainment 

areas 

100 

 

Sulfur dioxide or nitrogen dioxide, all 

nonattainment areas 

100 

 

PM10: 

Moderate nonattainment areas 100 

Serious nonattainment areas 70 

 

PM2.5: 

Direct emissions 100

Sulfur dioxide 100

Nitrogen oxides (unless determined 

not to be significant precursors)

100

Volatile organic compounds or 

ammonia (if determined to be 

significant precursors)

100

 

Lead, all nonattainment areas 25 

2. For the purposes of this subsection, the following rates 

apply in maintenance areas: 

 Tons per year 

Ozone (NOx), sulfur dioxide, or 

nitrogen dioxide, all maintenance 

areas 

100 

Ozone (VOCs): 

Maintenance areas inside an ozone 

transport region 

50 

Maintenance areas outside an ozone 

transport region 

100 

 

Carbon monoxide, all maintenance 

areas 

100 

 

PM10, all maintenance area areas 100 

 

PM2.5: 

Direct emissions 100

Sulfur dioxide 100
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Nitrogen oxides (unless determined 

not to be a significant precursor)

100

Volatile organic compounds or 

ammonia (if determined to be 

significant precursors)

100

Lead, all maintenance areas 25 

F. The requirements of this section shall not apply to the 

following federal actions: 

1. Actions where the total of direct and indirect emissions 

are below the emissions levels specified in subsection E of 

this section. 

2. The following actions which would result in no 

emissions increase or an increase in emissions that is 

clearly de minimis: 

a. Judicial and legislative proceedings. 

b. Continuing and recurring activities such as permit 

renewals where activities conducted shall be similar in 

scope and operation to activities currently being 

conducted. 

c. Rulemaking and policy development and issuance. 

d. Routine maintenance and repair activities, including 

repair and maintenance of administrative sites, roads, 

trails, and facilities. 

e. Civil and criminal enforcement activities, such as 

investigations, audits, inspections, examinations, 

prosecutions, and the training of law-enforcement 

personnel. 

f. Administrative actions such as personnel actions, 

organizational changes, debt management, internal 

agency audits, program budget proposals, and matters 

relating to administration and collection of taxes, duties, 

and fees. 

g. The routine, recurring transportation of materiel and 

personnel. 

h. Routine movement of mobile assets, such as ships and 

aircraft, in home port reassignments and stations (when 

no new support facilities or personnel are required) to 

perform as operational groups and for repair or overhaul 

or both. 

i. Maintenance dredging and debris disposal where no 

new depths are required, applicable permits are secured, 

and disposal shall be at an approved disposal site. 

j. With respect to existing structures, properties, 

facilities, and lands where future activities conducted 

shall be similar in scope and operation to activities 

currently being conducted at the existing structures, 

properties, facilities, and lands, actions such as relocation 

of personnel, disposition of federally-owned existing 

structures, properties, facilities, and lands, rent subsidies, 

operation and maintenance cost subsidies, the exercise of 

receivership or conservatorship authority, assistance in 

purchasing structures, and the production of coins and 

currency. 

k. The granting of leases, licenses such as for exports and 

trade, permits, and easements where activities conducted 

shall be similar in scope and operation to activities 

currently being conducted. 

l. Planning, studies, and provision of technical assistance. 

m. Routine operation of facilities, mobile assets, and 

equipment. 

n. Transfers of ownership, interests, and titles in land, 

facilities, and real and personal properties, regardless of 

the form or method of the transfer. 

o. The designation of empowerment zones, enterprise 

communities, or viticultural areas. 

p. Actions by any of the federal banking agencies or the 

federal reserve banks, including actions regarding 

charters, applications, notices, licenses, the supervision 

or examination of depository institutions or depository 

institution holding companies, access to the discount 

window, or the provision of financial services to banking 

organizations or to any state, agency, or instrumentality 

of the United States. 

q. Actions by the Board of Governors of the federal 

reserve system or any federal reserve bank to effect 

monetary or exchange rate policy. 

r. Actions that implement a foreign affairs function of the 

United States. 

s. Actions or portions thereof associated with transfers of 

land, facilities, title, and real properties through an 

enforceable contract or lease agreement where the 

delivery of the deed is required to occur promptly after a 

specific, reasonable condition is met, such as promptly 

after the land is certified as meeting the requirements of 

the Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA), 42 USC 

9601 et seq., and where the federal agency does not 

retain continuing authority to control emissions 

associated with the lands, facilities, title, or real 

properties. 

t. Transfers of real property, including land, facilities, 

and related personal property from a federal entity to 

another federal entity, and assignments of real property, 

including land, facilities, and related personal property 

from a federal entity to another federal entity, for 

subsequent deeding to eligible applicants. 
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u. Actions by the Department of the Treasury to effect 

fiscal policy and to exercise the borrowing authority of 

the United States. 

v. Air traffic control activities and adopting approach, 

departure, and en route procedures for aircraft operations 

above the mixing height specified in the applicable 

implementation plan. Where the applicable 

implementation plan does not specify a mixing height, 

the federal agency may use the 3,000 feet above ground 

level as a default mixing height, unless the agency 

demonstrates that use of a different mixing height is 

appropriate because the change in emissions at and above 

that height caused by the federal action is de minimis.

3. Actions where the emissions are not reasonably 

foreseeable, such as the following: 

a. Initial outer continental shelf lease sales which are 

made on a broad scale and are followed by exploration 

and development plans on a project level. 

b. Electric power marketing activities that involve the 

acquisition, sale, and transmission of electric energy. 

4. Individual actions which implement a decision to 

conduct or carry out a program that has been found to 

conform to the applicable implementation plan, such as 

prescribed burning actions which are consistent with a 

conforming land management plan, that has been found to 

conform to the applicable implementation plan. The land 

management plan shall have been found to conform within 

the past five years. 

G. Notwithstanding the other requirements of this section, a 

conformity determination is not required for the following 

federal actions or portions thereof: 

1. The portion of an action that includes major or minor

new or modified stationary sources that require a permit 

under the new source review program. 

2. Actions in response to emergencies or natural disasters 

such as hurricanes, earthquakes, etc., which that are 

typically commenced on the order of hours or days after 

the emergency or disaster and, if applicable, [ which that ] 

meet the requirements of subsection H of this section. 

3. Research, investigations, studies, demonstrations, or 

training (other than those exempted under subdivision F 2 

of this section), where no environmental detriment is 

incurred, or the particular action furthers air quality 

research, as determined by the department. 

4. Alteration and additions of existing structures as 

specifically required by new or existing applicable 

environmental legislation or environmental regulations (for 

example, hush houses for aircraft engines and scrubbers for 

air emissions). 

5. Direct emissions from remedial and removal actions 

carried out under CERCLA and associated regulations to 

the extent the emissions either comply with the substantive 

requirements of the new source review program, or are 

exempted from other environmental regulation under the 

provisions of CERCLA and applicable regulations issued 

under CERCLA. 

H. Federal actions which are part of a continuing response to 

an emergency or disaster under subdivision G 2 of this 

section and which are to be taken more than six months after 

the commencement of the response to the emergency or 

disaster under subdivision G 2 of this section are exempt from 

the requirements of this subsection only if: 

1. The federal agency taking the actions makes a written 

determination that, for a specified period not to exceed an 

additional six months, it is impractical to prepare the 

conformity analyses which would otherwise be required 

and the actions cannot be delayed due to overriding 

concerns for public health and welfare, national security 

interests, and foreign policy commitments; or 

2. For actions which are to be taken after those sections

actions covered by subdivision H 1 of this section, the 

federal agency makes a new determination as provided in 

subdivision H 1 of this section, and:

a. Provides a draft copy of the written determinations 

required to affected EPA regional offices, the affected 

states and air pollution control agencies, and any 

federally recognized Indian tribal government in the 

nonattainment or maintenance area. Those organizations 

shall be allowed 15 days from the beginning of the 

extension period to comment on the draft determination; 

and

b. Within 30 days after making the determination, 

publish a notice of the determination by placing a 

prominent advertisement in a daily newspaper of general 

circulation in the area affected by the action.

3. If additional actions are necessary in response to an 

emergency or disaster under subdivision G 2 of this section 

beyond the specified time period in subdivision 2 of this 

subsection, a federal agency may make a new written 

determination as described in subdivision 2 of this 

subsection for as many six-month periods as needed, but in 

no case shall this exemption extend beyond three sixmonth periods except where an agency provides 

information to EPA and the department stating that the 

conditions that gave rise to the emergency exemption 

continue to exist and how such conditions effectively 

prevent the agency from conducting a conformity 

evaluation.

I. Notwithstanding other requirements of this chapter, 

actions specified by individual federal agencies that have met 

the criteria set forth in either subdivision J 1, or J 2, or J 3 of 
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1066 

this section and the procedures set forth in subsection K of 

this section are presumed to conform, except as provided in 

subsection M of this section. Actions specified by individual 

federal agencies as presumed to conform shall not be used in 

combination with one another when the total direct and 

indirect emissions from the combination of actions would 

equal or exceed any of the rates specified in subdivisions E 1 

or E 2 of this section.

J. The federal agency shall meet the criteria for establishing 

activities that are presumed to conform by fulfilling the 

requirements set forth in either subdivision 1 or, 2, or 3 of this 

subsection. 

1. The federal agency shall clearly demonstrate, using 

methods consistent with this regulation, that the total of 

direct and indirect emissions from the type of activities 

which would be presumed to conform would not: 

a. Cause or contribute to any new violation of any 

standard in any area; 

b. Interfere with the provisions in the applicable 

implementation plan for maintenance of any standard; 

c. Increase the frequency or severity of any existing 

violation of any standard in any area; 

d. Delay timely attainment of any standard or any 

required interim emissions reductions or other milestones 

in any area including, where applicable, emission levels 

specified in the applicable implementation plan for 

purposes of: 

(1) A demonstration of reasonable further progress; 

(2) A demonstration of attainment; or 

(3) A maintenance plan. 

2. The federal agency shall provide documentation that the 

total of direct and indirect emissions from the future 

actions would be below the emission rates for a conformity 

determination that are established in subsection B of this 

section, based, for example, on similar actions taken over 

recent years. 

3. The federal agency shall clearly demonstrate that the 

emissions from the type or category of actions and the 

amount of emissions from the action are included in the 

applicable implementation plan and the department 

provides written concurrence that the emissions from the 

actions along with all other expected emissions in the area 

will not exceed the emission budget in the applicable 

implementation plan.

K. In addition to meeting the criteria for establishing 

exemptions set forth in subdivision J 1 or, J 2, or J 3 of this 

section, the following procedures shall also be complied with 

to presume that activities shall conform: 

1. The federal agency shall identify through publication in 

the Federal Register its list of proposed activities that are 

presumed to conform, and the analysis, assumptions, 

emissions factors, and criteria used as the basis for the 

presumptions. The notice shall clearly identify the type and 

size of the action that would be presumed to conform and 

provide criteria for determining if the type and size of 

action qualifies it for the presumption; 

2. The federal agency shall notify the appropriate EPA 

regional office or offices, department, and local air quality 

agencies and, where applicable, the lead planning 

organization, and the metropolitan planning organization 

and provide at least 30 days for the public to comment on 

the list of proposed activities presumed to conform. If the 

presumed to conform action has regional or national 

application (e.g., the action will cause emission increases 

in excess of the de minimis levels identified in subsection 

E of this section in more than one EPA region), the federal 

agency, as an alternative to sending it to EPA regional 

offices, may send the draft conformity determination to 

EPA, Office of Air Quality Planning and Standards; 

3. The federal agency shall document its response to all the 

comments received and make the comments, response, and 

final list of activities available to the public upon request; 

and 

4. The federal agency shall publish the final list of the such

activities in the Federal Register. 

L. Notwithstanding the other requirements of this section, 

when the total of direct and indirect emissions of any 

pollutant from a federal action does not equal or exceed the 

rates specified in subsection E of this section, but represents 

10% or more of a nonattainment or maintenance area's total 

emissions of that pollutant, the action is defined as a 

regionally significant action and the requirements of 9VAC5-

160-110 and 9VAC5-160-130 through 9VAC5-160-180 shall 

apply for the federal action. Emissions from the following 

actions are presumed to conform:

1. Actions at installations with facility-wide emission 

budgets meeting the requirements in 9VAC5-160-181 

provided that the department has included the emission 

budget in the EPA-approved applicable implementation 

plan and the emissions from the action along with all other 

emissions from the installation will not exceed the facilitywide emission budget.

2. Prescribed fires conducted in accordance with a smoke 

management program that meets the requirements of EPA's 

Interim Air Quality Policy on Wildland and Prescribed 

Fires (April 1998) or an equivalent replacement EPA 

policy.

3. Emissions for actions that the department identifies in 

the EPA-approved applicable implementation plan as 

presumed to conform.
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M. Where an action presumed to be de minimis under 

subdivision F 1 or F 2 of this section or otherwise presumed 

to conform under subsection I of this section is a regionally 

significant action or where an action otherwise presumed to 

conform under subsection I of this section does not in fact 

meet one of the criteria in subdivision J 1 of this section, that 

action shall not be considered de minimis or presumed to 

conform and the requirements of 9VAC5-160-110 and 

9VAC5-160-130 through 9VAC5-160-180 shall apply for the 

federal action. Even though an action would otherwise be 

presumed to conform under subsection I or L of this section, 

an action shall not be presumed to conform and the 

requirements of 9VAC5-160-110 through 9VAC5-160-180, 

9VAC5-160-182 through 9VAC5-160-184, and 9VAC5-160-

190 shall apply to the action if EPA or a third party shows 

that the action would:

1. Cause or contribute to any new violation of any standard 

in any area;

2. Interfere with provisions in the applicable 

implementation plan for maintenance of any standard;

3. Increase the frequency or severity of any existing 

violation of any standard in any area; or

4. Delay timely attainment of any standard or any required 

interim emissions reductions or other milestones in any 

area including, where applicable, emission levels specified 

in the applicable implementation plan for purposes of (i) a 

demonstration of reasonable further progress, (ii) a 

demonstration of attainment, or (iii) a maintenance plan.

N. Any measures used to affect or determine applicability of 

this chapter, as determined under this section, shall result in 

projects that are in fact de minimis, shall result in the de 

minimis levels prior to the time the applicability 

determination is made, and shall be state or federally 

enforceable. Any measures that are intended to reduce air 

quality impacts for this purpose shall be identified (including 

the identification and quantification of all emission reductions 

claimed) and the process for implementation (including any 

necessary funding of the measures and tracking of the 

emission reductions) and enforcement of the measures shall 

be described, including an implementation schedule 

containing explicit timelines for implementation. Prior to a 

determination of applicability, the federal agency making the 

determination shall obtain written commitments from the 

appropriate persons or agencies to implement any measures 

which are identified as conditions for making the 

determinations. The written commitment shall describe the 

mitigation measures and the nature of the commitment, in a 

manner consistent with the previous sentence. After this 

regulation is approved by EPA, enforceability through the 

applicable implementation plan of any measures necessary for 

a determination of applicability shall apply to all persons who 

agree to reduce direct and indirect emissions associated with a 

federal action for a conformity applicability determination. 

Part III 

Criteria and Procedures for Making Conformity 

Determinations 

9VAC5-160-110. General. 

A. No federal agency shall engage in, support in any way, or 

provide financial assistance for, license, or permit, or approve 

any activity which does not conform to an applicable 

implementation plan. 

B. A federal agency must make a determination that a 

federal action conforms to the applicable implementation plan 

in accordance with the requirements of this chapter before the 

action is taken. 

C. Subsection B of this section does not include federal 

actions where either: Reserved. 

1. A NEPA analysis was completed as evidenced by a final 

environmental assessment, environmental impact 

statement, or finding of no significant impact that was 

prepared prior to January 31, 1994, or

2. a. Prior to January 31, 1994, an environmental 

assessment was commenced or a contract was awarded to 

develop the specific environmental analysis,

b. Sufficient environmental analysis is completed by 

March 15, 1994, so that the federal agency may 

determine that the federal action is in conformity with the 

specific requirements and the purposes of the applicable 

implementation plan pursuant to the agency's affirmative 

obligation under § 176(c) of the federal Clean Air Act, 

and

c. A written determination of conformity under § 176(c) 

of the federal Clean Air Act has been made by the federal 

agency responsible for the federal action by March 15, 

1994. 

D. Notwithstanding any provision of this chapter, a 

determination that an action is in conformity with the 

applicable implementation plan does not exempt the action 

from any other requirements of the applicable implementation 

plan, NEPA, or the federal Clean Air Act. 

E. If an action would result in emissions originating in more 

than one nonattainment or maintenance area, the conformity 

must be evaluated for each area separately.

9VAC5-160-120. Conformity analysis Federal agency 

conformity responsibility. 

Any federal agency taking an action subject to this chapter

department, agency, or instrumentality of the federal 

government taking an action subject to this regulation shall 

make its own conformity determination consistent with the 

requirements of this part. In making its conformity 

determination, a federal agency shall follow the requirements 

in 9VAC5-160-130 through 9VAC5-160-180 and 9VAC5-
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160-182 through 9VAC5-160-185 and shall consider 

comments from any interested parties. Where multiple federal 

agencies have jurisdiction for various aspects of a project, a 

federal agency may choose to adopt the analysis of another 

federal agency (to the extent the proposed action and impacts 

analyzed are the same as the project for which a conformity 

determination is required) or develop its own analysis in 

order to make its conformity determination. 

9VAC5-160-130. Reporting requirements. 

A. A federal agency making a conformity determination 

under 9VAC5-160-160 9VAC5-160-120 through 9VAC5-

160-180 and 9VAC5-160-182 through 9VAC5-160-184 shall 

provide to the appropriate EPA regional office or offices, 

department and local air quality agencies, any federally 

recognized Indian tribal government in the nonattainment or 

maintenance area and, where applicable, affected federal land 

managers, the lead planning organization, and the 

metropolitan planning organization, a 30-day notice [ which

that ] describes the proposed action and the federal agency's 

draft conformity determination on the action. If the action has 

multi-regional or national impacts (e.g., the action will cause 

emission increases in excess of the de minimis levels 

identified in 9VAC5-160-30 E in three or more EPA regions), 

the federal agency, as an alternative to sending it to EPA 

regional offices, may provide the notice to EPA's Office of 

Air Quality Planning and Standards.

B. A federal agency shall notify the appropriate EPA 

regional office or offices, department and local air quality 

agencies, any federally recognized Indian tribal government 

in the nonattainment or maintenance area and, where 

applicable, affected federal land managers, the lead planning 

organization, and the metropolitan planning organization 

within 30 days after making a final conformity determination 

under 9VAC5-160-160. 

C. The draft and final conformity determination shall 

exclude any restricted information or confidential business 

information. The disclosure of restricted information and 

confidential business information shall be controlled by the 

applicable laws, regulations, security manuals, or executive 

orders concerning the use, access, and release of such 

materials. Subject to applicable procedures to protect 

restricted information from public disclosure, any information 

or materials excluded from the draft or final conformity 

determination or supporting materials may be made available 

in a restricted information annex to the determination for 

review by federal and department representatives who have 

received appropriate clearances to review the information.

9VAC5-160-140. Public participation. 

A. Upon request by any person regarding a specific federal 

action, a federal agency shall make available, subject to the 

limitation in subsection E of this section, for review its draft 

conformity determination under 9VAC5-160-160 with 

supporting materials which that describe the analytical 

methods and conclusions relied upon in making the 

applicability analysis and draft conformity determination. 

B. A federal agency shall make public its draft conformity 

determination under 9VAC5-160-160 by placing a notice by 

prominent advertisement in a daily newspaper of general 

circulation in the area affected by the action and by providing 

30 days for written public comment prior to taking any formal 

action on the draft determination. This comment period may 

be concurrent with any other public involvement such as 

occurs in the NEPA process. If the action has multi-regional 

or national impacts (e.g., the action will cause emission 

increases in excess of the de minimis levels identified in 

9VAC5-160-30 E in three or more EPA regions), the federal 

agency, as an alternative to publishing separate notices, may 

publish a notice in the Federal Register.

C. A federal agency shall document its response to all the 

comments received on its draft conformity determination 

under 9VAC5-160-160 and make the comments and 

responses available, subject to the limitation in subsection E 

of this section, upon request by any person regarding a 

specific federal action, within 30 days of the final conformity 

determination. 

D. A federal agency shall make public its final conformity 

determination under 9VAC5-160-160 for a federal action by 

placing a notice by prominent advertisement in a daily 

newspaper of general circulation in the area affected by the 

action within 30 days of the final conformity determination. If 

the action would have multi-regional or national impacts, the 

federal agency, as an alternative, may publish the notice in 

the Federal Register.

E. The draft and final conformity determination shall 

exclude any restricted information or confidential business 

information. The disclosure of restricted information and 

confidential business information shall be controlled by the 

applicable laws, regulations, or executive orders concerning 

the release of such materials.

9VAC5-160-150. Frequency of conformity determinations

Reevaluation of conformity. 

A. Once a conformity determination is completed by a 

federal agency, that determination is not required to be 

reevaluated if the agency has maintained a continuous 

program to implement the action, the determination has not 

lapsed as specified in subsection B of this section, or any 

modification to the action does not result in an increase in 

emissions above the levels specified in 9VAC5-160-30 B. If a 

conformity determination is not required for the action at the 

time NEPA analysis is completed, the date of the finding of 

no significant impact for an environmental assessment, a 

record of decision for an environmental impact statement, or 

a categorical exclusion determination may be used as a 

substitute date for the conformity determination date.
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B. The conformity status of a federal action automatically 

lapses five years from the date a final conformity 

determination is reported under 9VAC5-160-130, unless the 

federal action has been completed or a continuous program 

has been commenced to implement that the federal action 

within a reasonable time has commenced. 

B. C. Ongoing federal activities at a given site showing 

continuous progress are not new actions and do not require 

periodic redeterminations so long as the such activities are 

within the scope of the final conformity determination 

reported under 9VAC5-160-130. 

C. If, after the conformity determination is made, the federal 

action is changed so that there is an increase in the total of 

direct and indirect emissions above the levels in 9VAC5-160-

30 E, a new conformity determination is required. D. If the 

federal agency originally determined through the applicability 

analysis that a conformity determination was not necessary 

because the emissions for the action were below the limits in 

9VAC5-160-30 B and changes to the action would result in 

the total emissions from the action being above the limits in 

9VAC5-160-30 B, then the federal agency shall make a 

conformity determination.

9VAC5-160-160. Criteria for determining conformity of 

general federal actions. 

A. Any 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 or, 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, except ozone 

and nitrogen dioxide, the total of direct and indirect 

emissions from the action meet 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 PM10 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 an area's 

attainment or maintenance demonstration after 1990 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 
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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 attainment 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 attainment or maintenance 

demonstration since 1990 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) Calendar year 1990 The most current calendar year 

with a complete emissions inventory available before an 

area is designated unless EPA sets another year; 

(b) The calendar year that is the basis for the 

classification (or, where the classification is based on 

multiple years, the year that is most representative in 

terms of the level of activity), if a classification is 

promulgated in 40 CFR Part 81 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; or.

e. Where the action involves regional water or 

wastewater projects or both, the projects are sized to 

meet only the needs of population projections that are in 

the applicable implementation plan, based on 

assumptions regarding per capita use that are developed 

or approved in accordance with 9VAC5-160-170 A. 

B. The areawide or local air quality modeling analyses or 

both shall: 
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1. Meet the requirements of 9VAC5-160-170; and 

2. Show that the action does not: 

a. Cause or contribute to any new violation of any 

standard in any area; or 

b. Increase the frequency or severity of any existing 

violation of any standard in any area. 

C. Notwithstanding any other requirements of this section, 

an action subject to this section may not be determined to 

conform to the applicable implementation plan unless the 

total of direct and indirect emissions from the action is in 

compliance or consistent with all relevant requirements and 

milestones contained in the applicable implementation plan, 

such as elements identified as part of the reasonable further 

progress schedules, assumptions specified in the attainment or 

maintenance demonstration, prohibitions, numerical emission 

limits, and work practice requirements, and the action is 

otherwise in accordance with all relevant requirements of the 

applicable implementation plan. 

D. Any analyses required under this section shall be 

completed, and any mitigation requirements necessary for a 

finding of conformity shall be identified in accordance with 

9VAC5-160-180 before the determination of conformity is 

made. 

9VAC5-160-170. Procedures for conformity 

determinations. 

A. The analyses required under this section shall be based 

on the latest planning assumptions. 

1. All planning assumptions (including, but not limited to, 

per capita water and sewer use, vehicle miles traveled per 

capita or per household, trip generation per household, 

vehicle occupancy, household size, vehicle fleet mix, 

vehicle ownership, wood stoves per household, and the 

geographic distribution of population growth) shall be 

derived from the estimates of current and future 

population, employment, travel, and congestion most 

recently approved by the metropolitan planning 

organization or other agency authorized to make the 

estimates, where available. The conformity determination 

shall also be based on the latest assumptions about current 

and future background concentrations and other federal 

actions. 

2. Any revisions to these estimates used as part of the 

conformity determination, including projected shifts in 

geographic location or level of population, employment, 

travel, and congestion shall be approved by the 

metropolitan planning organization or other agency 

authorized to make the estimates for the urban area. 

B. The analyses required under this subsection shall be 

based on the latest and most accurate emission estimation 

techniques available as described below, unless the such

techniques are inappropriate. If the such techniques are 

inappropriate and, the federal agency may obtain written 

approval of from the appropriate EPA Regional 

Administrator is obtained for any a modification or 

substitution, they may be modified or of another technique 

substituted on a case-by-case basis or, where appropriate, on a 

generic basis for a specific federal agency program. 

1. For motor vehicle emissions, the most current version of 

the motor vehicle emissions model specified by EPA for 

use in the preparation or revision of the applicable 

implementation plan shall be used for the conformity 

analysis as specified in subdivisions 1 a and 1 b of this 

subsection. 

a. The EPA shall publish in the Federal Register a notice 

of availability of any new motor vehicle emissions 

model. 

b. A grace period of three months shall apply during 

which the motor vehicle emissions model previously 

specified by EPA as the most current version may be 

used unless EPA announces a longer grace period in the 

Federal Register. Conformity analyses for which the 

analysis was begun during the grace period or no more 

than three years months before the Federal Register 

notice of availability of the latest emission model may 

continue to use the previous version of the model 

specified by EPA, if a final conformity determination is 

made within three years of the analysis. 

2. For nonmotor vehicle sources, including stationary and 

area source emissions, the latest emission factors specified 

by EPA in the "Compilation of Air Pollutant Emission 

Factors (AP-42)" shall be used for the conformity analysis 

unless more accurate emission data are available, such as 

actual stack test data from stationary sources which are 

part of the conformity analysis. 

C. The air quality modeling analyses required under this 

subpart section shall be based on the applicable air quality 

models, databases, and other requirements specified in 

Appendix W of 40 CFR Part 51, unless:.

1. The guideline techniques are inappropriate, in which 

case the model may be modified or another model 

substituted on a case-by-case basis, or, where appropriate, 

on a generic basis for a specific federal agency program; 

and

2. Written approval of the EPA Regional Administrator is 

obtained for any modification or substitution.

D. The analyses required under this subsection, except 

9VAC5-160-160 A 1, shall be based on the total of direct and 

indirect emissions from the action and shall reflect emission 

scenarios that are expected to occur under each of the 

following cases: 
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1. The federal Clean Air Act-mandated attainment year 

specified in the applicable implementation plan or, if 

applicable, the farthest year for which emissions are 

projected in the maintenance plan; the applicable 

implementation plan does not specify an attainment year, 

the latest attainment year possible under the federal Clean 

Air Act; or

2. The year during which the total of direct and indirect 

emissions from the action is expected to be the greatest on 

an annual basis; and last year for which emissions are 

projected in the maintenance plan;

3. The year during which the total of direct and indirect 

emissions from the action is expected to be the greatest on 

an annual basis; and

4. Any year for which the applicable implementation plan 

specifies an emissions budget. 

9VAC5-160-180. Mitigation of air quality impacts. 

A. Any measures that are intended to mitigate air quality 

impacts shall be identified (including the identification and 

quantification of all emission reductions claimed) and the 

process for implementation (including any necessary funding 

of the measures and tracking of the emission reductions) and 

enforcement of the measures shall be described, including an 

implementation schedule containing explicit timelines for 

implementation. 

B. Prior to determining that a federal action is in conformity, 

the federal agency making the conformity determination shall 

obtain written commitments from the appropriate persons or 

agencies to implement any mitigation measures which are 

identified as conditions for making conformity decisions. The 

written commitment shall describe the mitigation measures 

and the nature of the commitment, in a manner consistent 

with subsection A of this section. 

C. Persons or agencies voluntarily committing to mitigation 

measures to facilitate positive conformity determinations 

shall comply with the obligations of the commitments. 

D. In instances where the federal agency is licensing, 

permitting, or otherwise approving the action of another 

governmental or private entity, approval by the federal 

agency shall be conditioned on the other entity meeting the 

mitigation measures set forth in the conformity determination 

as provided in subsection A of this section. 

E. When necessary because of changed circumstances, 

mitigation measures may be modified so long as the new 

mitigation measures continue to support the conformity 

determination in accordance with 9VAC5-160-150 and 

9VAC5-160-160 and this section. Any proposed change in 

the mitigation measures is subject to the reporting 

requirements of 9VAC5-160-130 and the public participation 

requirements of 9VAC5-160-140. 

F. Written comments to mitigation measures shall be 

obtained prior to a positive conformity determination, and the

such commitments shall be fulfilled. 

G. After EPA approves this regulation, any agreements, 

including mitigation measures, necessary for a conformity 

determination shall be both state and federally enforceable. 

Enforceability through the applicable implementation plan 

shall apply to all persons who agree to mitigate direct and 

indirect emissions associated with a federal action for a 

conformity determination. 

9VAC5-160-181. Conformity evaluation for federal 

installations with facility-wide emission budgets.

A. The department may, in cooperation with federal 

agencies or third parties authorized by the agency that operate 

installations subject to federal oversight, develop and adopt a 

facility-wide emission budget to be used for demonstrating 

conformity under 9VAC5-160-160 A 1. The facility-wide 

budget shall meet the following criteria:

1. Be for a set time period;

2. Cover the pollutants or precursors of the pollutants for 

which the area is designated nonattainment or 

maintenance;

3. Include specific quantities allowed to be emitted on an 

annual or seasonal basis;

4. The emissions from the facility along with all other 

emissions in the area will not exceed the emission budget 

for the area;

5. Include specific measures to ensure compliance with the 

budget, such as periodic reporting requirements or 

compliance demonstration, when the federal agency is 

taking an action that would otherwise require a conformity 

determination;

6. Be submitted to EPA as a revision to the applicable 

implementation plan; and

7. The revision to the applicable implementation plan shall 

be approved by EPA.

B. The facility-wide budget developed and adopted in 

accordance with subsection A of this section may be revised 

by following the requirements in subsection A of this section.

C. Total direct and indirect emissions from federal actions in 

conjunction with all other emissions subject to general 

conformity from the facility that do not exceed the facility 

budget adopted pursuant to subsection A of this section are 

presumed to conform to the applicable implementation plan 

and do not require a conformity analysis.

D. If the total direct and indirect emissions from the federal 

actions in conjunction with the other emissions subject to 

general conformity from the facility exceed the budget 

adopted pursuant to subsection A of this section, the action 
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shall be evaluated for conformity. A federal agency may use 

the compliance with the facility-wide emissions budget as 

part of the demonstration of conformity, i.e., the agency 

would have to mitigate or offset the emissions that exceed the 

emission budget.

E. If the applicable implementation plan for the area 

includes a category for construction emissions, the negotiated 

budget may exempt construction emissions from further 

conformity analysis.

9VAC5-160-182. Emissions beyond the time period 

covered by the applicable implementation plan.

If a federal action would result in total direct and indirect 

emissions above the applicable thresholds that would be 

emitted beyond the time period covered by the applicable 

implementation plan, the federal agency may (i) demonstrate 

conformity with the last emission budget in the applicable 

implementation plan or (ii) request the Commonwealth of 

Virginia to adopt an emissions budget for the action for 

inclusion in the applicable implementation plan. The 

Commonwealth of Virginia will submit a revision of the 

applicable implementation plan to EPA within 18 months 

either including the emissions in the existing implementation 

plan or establishing an enforceable commitment to include 

the emissions in future revisions to the applicable 

implementation plan based on the latest planning assumptions 

at the time of the revision to the applicable implementation 

plan. No such commitment by the Commonwealth of Virginia 

shall restrict the Commonwealth of Virginia's ability to 

require RACT, RACM, or any other control measures within 

the Commonwealth of Virginia's authority to ensure timely 

attainment of the national ambient air quality standards.

9VAC5-160-183. Timing of offsets and mitigation 

measures.

A. The emissions reductions from an offset or mitigation 

measure used to demonstrate conformity shall occur during 

the same calendar year as the emission increases from the 

action except as provided in subsection B of this section.

B. The department may approve emissions reductions in 

other years provided:

1. The reductions are greater than the emission increases 

by the following ratios:

Extreme nonattainment areas: 1.5:1

Severe nonattainment areas: 1.3:1

Serious nonattainment areas: 1.2:1

Moderate nonattainment areas: 1.15:1

All other areas: 1.1:1

2. The time period for completing the emissions reductions 

shall not exceed twice the period of the emissions.

3. The offset or mitigation measure with emissions 

reductions in another year shall not:

a. Cause or contribute to a new violation of any air 

quality standard;

b. Increase the frequency or severity of any existing 

violation of any air quality standard; or

c. Delay the timely attainment of any standard or any 

interim emissions reductions or other milestones in any 

area.

C. The approval by the department of an offset or mitigation 

measure with emissions reductions in another year does not 

relieve the Commonwealth of Virginia of any obligation to 

meet any implementation plan or federal Clean Air Act 

milestone or deadline. The approval of an alternate schedule 

for mitigation measures is at the discretion of the department, 

and it is not required to approve an alternate schedule.

9VAC5-160-184. Inter-precursor mitigation measures and 

offsets.

Federal agencies shall reduce the same type of pollutant as 

being increased by the federal action except the department 

may approve offsets or mitigation measures of different 

precursors of the same criteria pollutant, if such trades are 

allowed by the Commonwealth of Virginia in 9VAC5-80 

(Permits for Stationary Sources) as approved in the applicable 

implementation plan, are technically justified, and have a 

demonstrated environmental benefit.

9VAC5-160-185. Early emission reduction credit 

programs at federal facilities and installation subject to 

federal oversight.

A. Federal facilities and installations subject to federal 

oversight may, with the approval of the department, create an 

early emissions reductions credit program. The federal 

agency may create the emission reduction credits in 

accordance with the requirements in subsection B of this 

section and use them in accordance with subsection C of this 

section.

B. Creation of emission reduction credits shall be 

accomplished as follows:

1. Emissions reductions shall be quantifiable through the 

use of standard emission factors or measurement 

techniques. If nonstandard factors or techniques to quantify 

the emissions reductions are used, the federal agency shall 

receive approval from the department and from the EPA 

regional office. The emission reduction credits do not have 

to be quantified before the reduction strategy is 

implemented, but shall be quantified before the credits are 

used in the general conformity evaluation.

2. The emission reduction methods shall be consistent with 

the applicable implementation plan attainment and 

reasonable further progress demonstrations.
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3. The emissions reductions shall not be required by or 

credited to other applicable implementation plan 

provisions.

4. Both the department and federal air quality agencies 

shall be able to take legal action to ensure continued 

implementation of the emission reduction strategy. In 

addition, private citizens shall also be able to initiate action 

to ensure compliance with the control requirement.

5. The emissions reductions shall be permanent or the 

timeframe for the reductions shall be specified.

6. The federal agency shall document the emissions 

reductions and provide a copy of the document to the 

department and the EPA regional office for review. The 

documentation shall include a detailed description of the 

emission reduction strategy and a discussion of how it 

meets the requirements of subdivisions 1 through 5 of this 

subsection.

C. The emission reduction credits created in accordance 

with subsection B of this section may be used, subject to the 

following limitations, to reduce the emissions increase from a 

federal action at the facility for the conformity evaluation.

1. If the technique used to create the emission reduction 

is implemented at the same facility as the federal action 

and could have occurred in conjunction with the federal 

action, then the credits may be used to reduce the total 

direct and indirect emissions used to determine the 

applicability of the regulation as required in 9VAC5-160-

30 and as offsets or mitigation measures required by 

9VAC5-160-160.

2. If the technique used to create the emission reduction 

is not implemented at the same facility as the federal 

action or could not have occurred in conjunction with the 

federal action, then the credits shall not be used to reduce 

the total direct and indirect emissions used to determine 

the applicability of the regulation as required in 9VAC5-

160-30, but may be used to offset or mitigate the 

emissions as required by 9VAC5-160-160.

3. Emissions reductions credits shall be used in the same 

year in which they are generated.

4. Once the emission reduction credits are used, they 

shall not be used as credits for another conformity 

evaluation. However, unused credits from a strategy used 

for one conformity evaluation may be used for another 

conformity evaluation as long as the reduction credits are 

not double counted.

5. Federal agencies shall notify the department and the EPA 

regional office when the emission reduction credits are being 

used.

9VAC5-160-190. Savings provision. 

The federal conformity rules under 40 CFR Part 51 subpart 

W, in addition to any existing applicable Commonwealth of 

Virginia requirements, shall establish the conformity criteria 

and procedures necessary to meet the requirements of § 

176(c) of the federal Clean Air Act until such time as this 

regulation is approved by EPA. Following EPA approval of 

this regulation, the approved or approved portion of this 

regulation shall govern conformity determinations and the 

federal conformity regulations contained in 40 CFR Part 93 

shall apply only for the portion, if any, of this regulation that 

is not approved by EPA requirements of 40 CFR Part 93 to 

demonstrate conformity required under § 176(c) of the federal 

Clean Air Act apply to all federal actions in designated 

nonattainment and maintenance areas where EPA has not 

approved this regulation. When EPA approves this regulation 

in a revision to the Commonwealth of Virginia applicable 

implementation plan, a conformity evaluation is governed by 

the approved or approved portion of this regulation. The 

regulations contained in 40 CFR Part 93 apply only for the 

portions, if any, of the 40 CFR Part 93 requirements not 

contained in the provisions of this regulation approved by 

EPA. In addition, any previously applicable implementation 

plan requirements relating to conformity shall remain 

enforceable until the Commonwealth revises its applicable 

implementation plan to specifically remove them and that 

revision is approved by EPA approves the revision to the 

Commonwealth of Virginia's applicable implementation plan 

to specifically include the revised requirements or remove 

requirements. 

9VAC5-160-200. Review and confirmation of this chapter 

by board. (Repealed.)

A. Prior to January 1, 2000, the department shall provide the 

board with an analysis to include (i) an assessment of the 

effectiveness of this chapter; (ii) the status of any specific 

federal requirements and the identification of any provisions 

more stringent than the federal requirements; (iii) the federal 

approval status of this chapter; and (iv) an assessment of the 

need for continuation of this chapter. 

B. Upon review of the department's analysis, the board shall 

confirm (i) the continuation of this chapter, (ii) the repeal of 

this chapter, or (iii) the need to amend this chapter. If a 

decision is made in either of the latter two cases, the board 

shall authorize the department to initiate the applicable 

regulatory process to carry out the decision of the board. 

DOCUMENTS INCORPORATED BY REFERENCE 

(9VAC5-160) 

Compilation of Air Pollutant Emission Factors (AP-42), 

September 1985, with Supplement B, September 1988; 

Supplement C, September 1990; and Supplement D, 

September 1991. 
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1075

Compilation of Air Pollutant Emission Factors, Volume I: 

Stationary Point and Area Sources, AP-42, Fifth Edition, 

January 1995, stock number 055-000-00500-1; Supplement 

A, stock number 055-000-00551-6, February 1996; 

Supplement B, stock number 055-000-00565, November 

1996; Supplement C, stock number 055-000-00587-7, 

November 1997; Supplement D, August 1998; Supplement E, 

September 1999; Supplement F, September 2000; U.S. 

Environmental Protection Agency, Office of Air Quality 

Planning and Standards, Office of Air and Radiation, 

Research Triangle Park, NC 27711 

(http://www.epa.gov/ttn/chief/ap42/).

Interim Air Quality Policy on Wildland and Prescribed 

Fires, April 23, 1998, U.S. Environmental Protection Agency, 

Office of Air and Radiation, Research Triangle Park, NC 

27711.

VA.R. Doc. No. R11-2518; Filed January 6, 2011, 3:27 p.m. 

Proposed Regulation 

REGISTRAR'S NOTICE: The following regulation filed by 

the State Air Pollution Control Board is exempt from the 

Administrative Process Act in accordance with § 2.2-4006 A 

8 of the Code of Virginia, which exempts general permits 

issued by the State Air Pollution Control Board pursuant to 

Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1, if the board (i) 

provides a Notice of Intended Regulatory Action in 

conformance with the provisions of § 2.2-4007.01, (ii) 

following the passage of 30 days from the publication of the 

Notice of Intended Regulatory Action forms a technical 

advisory committee composed of relevant stakeholders, 

including potentially affected citizens groups, to assist in the 

development of the general permit, (iii) provides notice and 

receives oral and written comment as provided in § 2.2-

4007.03, and (iv) conducts at least one public hearing on the 

proposed general permit. 

Title of Regulation: 9VAC5-530. Electric Generator 

Voluntary Demand Response General Permit (Rev. Dg.) 

(adding 9VAC5-530-10 through 9VAC5-530-290).

Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the 

Code of Virginia. 

Public Hearing Information:

March 16, 2011 - 9:30 a.m. - Department of 

Environmental Quality, 629 East Main Street, Second 

Floor Conference Room A, Richmond, VA 

Public Comment Deadline: April 4, 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. 

Basis: Section 10.1-1308 of the Virginia Air Pollution 

Control Law (§ 10.1-1300 et seq. of the Code of Virginia) 

authorizes the State Air Pollution Control Board to 

promulgate regulations abating, controlling, and prohibiting 

air pollution to protect public health and welfare. Section 

10.1-1307.02 B 4 of the Virginia Air Pollution Control Law 

establishes the requirement to develop a general permit for 

the construction, installation, and operation of distillate oil, 

natural gas, liquid propane gas, and biodiesel fired electric 

generating facilities that participate in a voluntary demand 

response program (i.e., load curtailment, demand response, 

peak shaving, or like program) and that qualify as nonmajor 

facilities under the federal Clean Air Act Amendments of 

1990. 

Federal Requirements: Section 110(a) of the Clean Air Act 

(CAA) mandates that each state adopt and submit to the 

Environmental Protection Agency (EPA) a plan that provides 

for the implementation, maintenance, and enforcement of 

each primary and secondary air quality standard within each 

air quality control region in the state. The state 

implementation plan shall be adopted only after reasonable 

public notice is given and public hearings are held. The plan 

shall include provisions to accomplish, among other tasks, the 

following: (i) establish enforceable emission limitations and 

other control measures as necessary to comply with the 

provisions of the CAA, including economic incentives such 

as fees, marketable permits, and auctions of emissions rights; 

(ii) establish a program for the enforcement of the emission 

limitations and schedules for compliance; and (ii) establish 

programs for the regulation and permitting of the 

modification and construction of any stationary source within 

the areas covered by the plan to assure the achievement of the 

ambient air quality standards. 

40 CFR Part 51 sets out requirements for the preparation, 

adoption, and submittal of state implementation plans. These 

requirements mandate that any such plan shall include several 

provisions, as summarized below. 

Subpart F (Procedural Requirements) specifies definitions of 

key terms, stipulations and format for plan submission, 

requirements for public hearings, and conditions for plan 

revisions and federal approval. 

Subpart G (Control Strategy) specifies the description of 

emissions reductions estimates sufficient to attain and 

maintain the standards, the description of control measures 

and schedules for implementation, time periods for 

demonstrations of the control strategy's adequacy, an 

emissions inventory, an air quality data summary, data 

availability, special requirements for lead emissions, stack 

height provisions, and intermittent control systems. 

Subpart I (Review of New Sources and Modifications) 

specifies legally enforceable procedures, public availability of 

information on sources, identification of responsible agency, 

and administrative procedures. 
General Notices/Errata 

Regulations (Parts I, II, and III). On December 9, 2009, the 

Virginia Soil and Water Conservation Board (board) adopted 

revisions to the regulations and suspended the effective date 

of these regulatory actions, in response to 25 petitions 

received during the 30-day final adoption period, in 

accordance with § 2.2-4007.06 of the Administrative Process 

Act. In response to legislative action taken during the 2010 

Session of the General Assembly (Chapters 137 and 370), the 

department convened a Regulatory Advisory Panel (RAP) to 

review the regulations and to make recommendations to the 

board. Prior to presentation of the RAP's recommendations to 

the board, the department wishes to solicit public comment 

on the proposed revisions to the regulations. A copy of the 

regulations and associated documents may be found at 

http://www.dcr.virginia.gov/lr2d.shtml. 

The comment period will begin on March 28, 2011, and will 

end on April 27, 2011. Anyone wishing to submit comments 

may do so by mail, facsimile, or email. Comments may be 

mailed to the Regulatory Coordinator at: Virginia 

Department of Conservation and Recreation, 203 Governor 

Street, Suite 302, Richmond, VA 23219. Comments may also 

be faxed to (804) 786-6141 or emailed to the coordinator at 

regcord@dcr.virginia.gov. Public comments will be accepted 

until 5 p.m. on April 27, 2011. 

VIRGINIA CODE COMMISSION 

Notice to State Agencies 

Contact Information: Mailing Address: Virginia Code 

Commission, 910 Capitol Street, General Assembly 

Building, 2nd Floor, Richmond, VA 23219; Telephone:

Voice (804) 786-3591; FAX (804) 692-0625; Email:

varegs@dls.virginia.gov. 

Meeting Notices: Section 2.2-3707 C of the Code of 

Virginia requires state agencies to post meeting notices on 

their websites and on the Commonwealth Calendar at 

http://www.virginia.gov/cmsportal3/cgi-bin/calendar.cgi. 

Cumulative Table of Virginia Administrative Code 

Sections Adopted, Amended, or Repealed: A table listing 

regulation sections that have been amended, added, or 

repealed in the Virginia Register of Regulations since the 

regulations were originally published or last supplemented in 

the print version of the Virginia Administrative Code is 

available at http://register.dls.virginia.gov/cumultab.htm. 

Filing Material for Publication in the Virginia Register of 

Regulations: Agencies are required to use the Regulation 

Information System (RIS) when filing regulations for 

publication in the Virginia Register of Regulations. The 

Office of the Virginia Register of Regulations implemented a 

web-based application called RIS for filing regulations and 

related items for publication in the Virginia Register. The 

Registrar's office has worked closely with the Department of 

Planning and Budget (DPB) to coordinate the system with 

the Virginia Regulatory Town Hall. RIS and Town Hall 

complement and enhance one another by sharing pertinent 

regulatory information. 

The Office of the Virginia Register is working toward the 

eventual elimination of the requirement that agencies file 

print copies of regulatory packages. Until that time, agencies 

may file petitions for rulemaking, notices of intended 

regulatory actions, and general notices in electronic form 

only; however, until further notice, agencies must continue to 

file print copies of proposed, final, fast-track, and emergency 

regulatory packages. 

ERRATA 

STATE AIR POLLUTION CONTROL BOARD 

Title of Regulation: 9VAC5-60. Hazardous Air Pollutant 

Sources (Rev. G10). 

Publication: 27:11 VA.R. 1009-1026 January 31, 2011. 

Correction to Final Regulation:

Page 1025, 9VAC5-60-100, column 2, Subpart VVVVVV, 

after "Reserved," underline "Chemical Manufacturing Area 

Source" 

VA.R. Doc. No. R11-2537; Filed March 8, 2011, 2:49 p.m. 

Title of Regulation: 9VAC5-160. Regulation for General 

Conformity (Rev. F10). 

Publication: 27:11 VA.R. 1058-1075 January 31, 2011. 

Correction to Final Regulation:

Page 1062, 9VAC5-160-30 B, line 3, after "nitrogen 

dioxide," strike "and" 

VA.R. Doc. No. R11-2518; Filed March 8, 2011, 2:49 p.m. 

Volume 27, Issue 15 Virginia Register of Regulations March 28, 2011 

1978