Virginia Administrative Code

Database updated through April 1, 2011

Part I 

General Definitions 

9VAC5-160-10. General. 

A. For the purpose of this chapter and subsequent amendments or any orders issued by the board, 

the words or terms shall have the meanings given them in 9VAC5-160-20. 

B. Unless specifically defined in the Virginia Air Pollution Control Law or in this chapter, terms used 

shall have the meanings given them by the federal Clean Air Act, other U.S. Environmental Protection 

Agency (EPA) regulations, 9VAC50-170-20 (definitions, Regulation for General Administration) or

commonly ascribed to them by recognized authorities, in that order of priority. 

Statutory Authority 

§ 10.1-1308 of the Code of Virginia. 

Historical Notes 

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register 

Volume 14, Issue 3, eff. January 1, 1998. 

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 

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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 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 

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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.

"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.

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"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" 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.

"EPA" means the 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 

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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 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: 

1. That are caused or initiated by the federal action and originate in the same nonattainment or 

maintenance area, but occur at a different time or place as the action;

2. 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 

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the entire nonattainment or maintenance area, including, for example, congested roadways on a 

federal facility 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 an area that was designated as nonattainment and has been redesignated 

in 40 CFR Part 81 to attainment, 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 created as a result of 

the designation process in 23 USC § 134(d).

"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 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 

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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.

"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.

2. For PM10, those pollutants described in the PM10 nonattainment area applicable implementation 

plan as significant contributors to the 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" means projected future direct and indirect emissions that are 

identified at the time the conformity determination is made; the location of such emissions is known; 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.

"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.

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"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.

Statutory Authority 

§ 10.1-1308 of the Code of Virginia. 

Historical Notes 

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register 

Volume 14, Issue 3, eff. January 1, 1998; Errata, 14:7 VA.R. 1175 December 22, 1997; amended, Virginia 

Register Volume 27, Issue 11, eff. March 2, 2011. 

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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, 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:

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 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 9VAC5-151 (Regulation for Transportation Conformity), in 

lieu of the procedures set forth in this chapter.

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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:

2. For the purposes of this subsection, the following rates apply in maintenance 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

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

Tons per year

Ozone (NOx), sulfur dioxide, or nitrogen dioxide, all maintenance 

areas

100

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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.

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 areas 100

PM2.5:

Direct emissions 100

Sulfur dioxide 100

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

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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.

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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.

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 

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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 that are typically commenced on the order of hours or days 

after the emergency and, if applicable, 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 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:

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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 

six-month 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 subdivision J 1, J 2, or J 3 of 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, 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;

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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, 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 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 

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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 such activities in the Federal Register.

L. 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 facility-wide 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.

M. 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 

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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.

Statutory Authority 

§ 10.1-1308 of the Code of Virginia. 

Historical Notes 

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register 

Volume 27, Issue 11, eff. March 2, 2011. 

9VAC5-160-40. Authority of board and department. 

A. No provision of this chapter shall limit the power of the board to take such appropriate action as 

necessary to control and abate air pollution in emergency situations. 

B. In accordance with the Virginia Air Pollution Control Law and the Administrative Process Act and by 

the adoption of this chapter, the board confers upon the department the administrative, enforcement and 

decision making authority enumerated in this chapter. 

C. The board reserves the right to exercise its authority in any of the powers delegated in this chapter 

should it choose to do so. 

D. The director has final authority to adjudicate contested decisions of subordinates delegated powers 

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by the director prior to appeal of the decisions to the circuit court or consideration by the board. 

Statutory Authority 

§ 10.1-1308 of the Code of Virginia. 

Historical Notes 

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997. 

9VAC5-160-50 to 9VAC5-160-70. [Repealed] 

Historical Notes 

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; repealed, Virginia Register 

Volume 14, Issue 3, eff. January 1, 1998. 

9VAC5-160-80. Relationship of state regulations to federal regulations. 

A. In order for the Commonwealth of Virginia to fulfill its obligations under the federal Clean Air Act, 

some provisions of this chapter are required to be approved by EPA and when approved those provisions 

become federally enforceable. 

B. In cases where this chapter specifies that procedures or methods shall be approved by, acceptable 

to, or determined by the board or department or other similar phrasing or specifically provide for decisions 

to be made by the board or department, it may be necessary to have the actions (approvals

determinations, exemptions, exclusions, or decisions) reviewed and confirmed as acceptable or approved 

by EPA in order to make them federally enforceable. Determination of which state actions require federal 

confirmation or approval and the administrative mechanism for making associated confirmation or

approval decisions shall be made on a case-by-case basis in accordance with EPA regulations and 

policy. 

Statutory Authority 

§ 10.1-1308 of the Code of Virginia. 

Historical Notes 

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997. 

9VAC5-160-90 to 9VAC5-160-100. [Repealed] 

Historical Notes 

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Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; repealed, Virginia Register 

Volume 14, Issue 3, eff. January 1, 1998. 

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. Reserved.

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.

Statutory Authority 

§ 10.1-1308 of the Code of Virginia. 

Historical Notes 

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register 

Volume 27, Issue 11, eff. March 2, 2011. 

9VAC5-160-120. Federal agency conformity responsibility. 

Any 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 9VAC5-160-182 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 or develop its own 

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analysis in order to make its conformity determination.

Statutory Authority 

§ 10.1-1308 of the Code of Virginia. 

Historical Notes 

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register 

Volume 27, Issue 11, eff. March 2, 2011. 

9VAC5-160-130. Reporting requirements. 

A. A federal agency making a conformity determination under 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 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 

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determination for review by federal and department representatives who have received appropriate 

clearances to review the information.

Statutory Authority 

§ 10.1-1308 of the Code of Virginia. 

Historical Notes 

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register 

Volume 27, Issue 11, eff. March 2, 2011. 

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 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 

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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.

Statutory Authority 

§ 10.1-1308 of the Code of Virginia. 

Historical Notes 

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register 

Volume 27, Issue 11, eff. March 2, 2011. 

9VAC5-160-150. 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.

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 to implement the federal action has commenced.

C. Ongoing federal activities at a given site showing continuous progress are not new actions and do 

not require periodic redeterminations so long as such activities are within the scope of the final conformity 

determination reported under 9VAC5-160-130.

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 

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limits in 9VAC5-160-30 B, then the federal agency shall make a conformity determination.

Statutory Authority 

§ 10.1-1308 of the Code of Virginia. 

Historical Notes 

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register 

Volume 27, Issue 11, eff. March 2, 2011. 

9VAC5-160-160. Criteria for determining conformity of general federal actions. 

A. An action required under 9VAC5-160-30 to have a conformity determination for a specific pollutant, 

shall be determined to conform to the applicable implementation plan if, for each pollutant that exceeds 

the rates in 9VAC5-160-30 E, or otherwise requires a conformity determination due to the total of direct 

and indirect emissions from the action, the action meets the requirements of subsection C of this section, 

and meets any of the following requirements:

1. For any criteria pollutant or precursor, the total of direct and indirect emissions from the action 

are specifically identified and accounted for in the applicable implementation plan's attainment or 

maintenance demonstration or reasonable further progress milestone or in a facility-wide emission 

budget included in an applicable implementation plan in accordance with 9VAC5-160-181;

2. For precursors of ozone, nitrogen dioxide, or particulate matter, the total of direct and indirect 

emissions from the action are fully offset within the same nonattainment or maintenance area (or 

nearby area of equal or higher classification provided the emissions from that area contribute to the 

violations, or have contributed to violations in the past, in the area with the federal action) through 

a revision to the applicable implementation plan or a similarly enforceable measure that effects 

emission reductions so that there is no net increase in emissions of that pollutant;

3. For any directly emitted criteria pollutant, the total of direct and indirect emissions from the 

action meets the requirements:

a. Specified in subsection B of this section, based on areawide air quality modeling analysis 

and local air quality modeling analysis; or

b. Meet the requirements of subdivision 5 of this subsection, and, for local air quality modeling 

analysis, the requirement of subsection B of this section;

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4. For carbon monoxide or particulate matter:

a. Where the department determines (in accordance with 9VAC5-160-120 and 9VAC5-160-130 

and consistent with the applicable implementation plan) that an areawide air quality modeling 

analysis is not needed, the total of direct and indirect emissions from the action meet the 

requirements specified in subsection B of this section, based on local air quality modeling 

analysis; or

b. Where the department determines (in accordance with 9VAC5-160-120 and 9VAC5-160-130 

and consistent with the applicable implementation plan) that an areawide air quality modeling 

analysis is appropriate and that a local air quality modeling analysis is not needed, the total of 

direct and indirect emissions from the action meet the requirements specified in subsection B of 

this section, based on areawide modeling, or meet the requirements of subdivision 5 of this 

subsection; or

5. For ozone or nitrogen dioxide, and for the purposes of subdivisions 3 b and 4 b of this

subsection, each portion of the action or the action as a whole meets any of the following

requirements:

a. Where EPA has approved a revision to the applicable implementation plan after the area was 

designated as nonattainment and the department makes a determination that as provided in 

subdivision 5 a (1) of this subsection or where the Commonwealth of Virginia makes a

commitment as provided in subdivision 5 a (2) of this subsection:

(1) The total of direct and indirect emissions from the action or portion thereof is determined 

and documented by the department to result in a level of emissions which, together with all 

other emissions in the nonattainment or maintenance area, would not exceed the emissions 

budgets specified in the applicable implementation plan.

(2) The total of direct and indirect emissions from the action or portion thereof is determined 

and documented by the department to result in a level of emissions which, together with all 

other emissions in the nonattainment or maintenance area, would exceed an emissions

budgets specified in the applicable implementation plan and the Governor or the Governor's 

designee for state implementation plan actions makes a written commitment to EPA which 

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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 

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determination, the department will, within 18 months, submit to EPA a revision to the existing 

implementation plan committing to include the emissions in the future implementation plan 

revision.

b. The action or portion thereof, as determined by the metropolitan planning organization, is 

specifically included in a current transportation plan and transportation improvement program 

which have been found to conform to the applicable implementation plan under 40 CFR Part 

51, Subpart T, or 40 CFR Part 93, Subpart A.

c. The action or portion thereof fully offsets its emissions within the same nonattainment or 

maintenance area (or nearby area of equal or higher classification provided the emissions from 

that area contribute to the violations, or have contributed to violation in the past, in the area with 

the federal action) through a revision to the applicable implementation plan or an equally

enforceable measure that effects emissions reductions equal to or greater than the total of 

direct and indirect emissions from the action so that there is no net increase in emissions of that 

pollutant.

d. Where EPA has not approved a revision to the relevant implementation plan since the area 

was redesignated or classified, the total of direct and indirect emissions from the action for the 

future years (described in 9VAC5-160-170) do not increase emissions with respect to the 

baseline emissions.

(1) The baseline emissions reflect the historical activity levels that occurred in the geographic 

area affected by the proposed federal action during:

(a) The most current calendar year with a complete emissions inventory available before an 

area is designated unless EPA sets another year; 

(b) The emission budget in the applicable implementation plan; or

(c) The year of the baseline inventory in the PM10-applicable implementation plan.

(2) The baseline emissions are the total of direct and indirect emissions calculated for the future 

years (described in 9VAC5-160-170 D) using the historic activity levels (described in

subdivision 5 d (1) of this subsection) and appropriate emission factors for the future years.

e. Where the action involves regional water or wastewater projects or both, the projects are 

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sized to meet only the needs of population projections that are in the applicable implementation 

plan, based on assumptions regarding per capita use that are developed or approved in 

accordance with 9VAC5-160-170 A.

B. The areawide or local air quality modeling analyses or both shall:

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

2. Show that the action does not:

a. Cause or contribute to any new violation of any standard in any area; or

b. Increase the frequency or severity of any existing violation of any standard in any area.

C. Notwithstanding any other requirements of this section, an action subject to this section may not be 

determined to conform to the applicable implementation plan unless the total of direct and indirect

emissions from the action is in compliance or consistent with all relevant requirements and milestones 

contained in the applicable implementation plan, such as elements identified as part of the reasonable 

further progress schedules, assumptions specified in the attainment or maintenance demonstration,

prohibitions, numerical emission limits, and work practice requirements, and the action is otherwise in 

accordance with all relevant requirements of the applicable implementation plan.

D. Any analyses required under this section shall be completed, and any mitigation requirements 

necessary for a finding of conformity shall be identified in accordance with 9VAC5-160-180 before the 

determination of conformity is made.

Statutory Authority 

§ 10.1-1308 of the Code of Virginia. 

Historical Notes 

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register 

Volume 27, Issue 11, eff. March 2, 2011. 

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, 

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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 such techniques are inappropriate. 

If such techniques are inappropriate, the federal agency may obtain written approval from the appropriate 

EPA Regional Administrator for a modification or substitution of another technique 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 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.

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)" 

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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 section shall be based on the applicable air 

quality models, databases, and other requirements specified in Appendix W of 40 CFR Part 51.

D. The analyses required under this subsection 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:

1. The attainment year specified in the applicable implementation plan or, if the applicable

implementation plan does not specify an attainment year, the latest attainment year possible under 

the federal Clean Air Act; or

2. The 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.

Statutory Authority 

§ 10.1-1308 of the Code of Virginia. 

Historical Notes 

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register 

Volume 27, Issue 11, eff. March 2, 2011. 

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 

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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. 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 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.

Statutory Authority 

§ 10.1-1308 of the Code of Virginia. 

Historical Notes 

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register 

Volume 27, Issue 11, eff. March 2, 2011. 

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 

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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 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.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

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Historical Notes

Derived from Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

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.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

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

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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.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

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.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

9VAC5-160-185. Early emission reduction credit programs at federal facilities and installation 

Moderate nonattainment areas: 1.15:1

All other areas: 1.1:1

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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.

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.

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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.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

9VAC5-160-190. Savings provision. 

The 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 

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approved by EPA. In addition, any previously applicable implementation plan requirements shall

remain enforceable until EPA approves the revision to the Commonwealth of Virginia's applicable

implementation plan to specifically include the revised requirements or remove requirements.

Statutory Authority 

§ 10.1-1308 of the Code of Virginia. 

Historical Notes 

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register 

Volume 27, Issue 11, eff. March 2, 2011. 

9VAC5-160-200. (Repealed). 

Historical Notes 

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; repealed, Virginia Register 

Volume 27, Issue 11, eff. March 2, 2011. 

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