ENCLOSURE 1 

COMMONWEALTH OF VIRGINIA 

STATE AIR POLLUTION CONTROL BOARD 

REGULATIONS FOR THE CONTROL AND ABATEMENT OF AIR POLLUTION 

PROVISIONS AFFECTED 

REVISION E10 

CONCERNING 

TRANSPORTATION CONFORMITY 

(9VAC5 CHAPTER 151) 

Adoption Date: December 17, 2010 

Effective Date: March 2, 2011 

The following table lists the specific provisions of the attached regulations that will be 

used to implement the State Implementation Plan (SIP). A copy of the actual regulation 

submitted for approval and incorporation by reference into the Virginia SIP is included in 

Enclosure 2. 

CHAPTER 151 TRANSPORTATION CONFORMITY

Part III. Criteria and Procedures for Making Conformity Determinations. 

9VAC5-151-40 General (modified) 

9VAC5-151-70 Consultation (modified) 

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9 VAC 5 CHAPTER 151.

REGULATION FOR TRANSPORTATION CONFORMITY.

9 VAC 5-151-40. General.

The Environmental Protection Agency (EPA) regulations promulgated at 40 CFR 

Part 93, Subpart A (Conformity to State or Federal Implementation Plans of 

Transportation Plans, Programs, and Projects Developed, Funded or Approved Under 

Title 23 USC or the Federal Transit Laws) and designated in 9 VAC 5-151-50 are 

incorporated by reference into this chapter as amended by the word or phrase 

substitutions given in 9 VAC 5-151-60. The 40 CFR section numbers appearing in 9 

VAC 5-151-50 identify the specific provisions incorporated by reference. The specific 

version of the provisions incorporated by reference shall be that contained in the CFR 

(2008) in effect July 1, 2008 (2010) in effect July 1, 2010.

9 VAC 5-151-70. Consultation.

A. The MPOs, LPOs, DEQ, VDOT and VDRPT shall undertake the procedures 

prescribed in this section for interagency consultation, conflict resolution and public 

consultation with each other and with local or regional offices of EPA, FHWA, and FTA 

on the development of control strategy implementation plan revisions, the list of TCMs 

in the applicable implementation plan, transportation plans, TIPs, and associated 

conformity determinations required by this chapter.

B. Until EPA grants approval of this chapter, the MPOs, and VDOT and VDRPT, 

prior to making conformity determinations, shall provide reasonable opportunity for 

consultation with LPOs, DEQ and EPA on the issues in subdivision D 1 of this section.

C. The provisions of this subsection shall be followed with regard to general 

factors associated with interagency consultation.

1. Representatives of the MPOs, VDOT, VDRPT, FHWA, and FTA shall 

undertake an interagency consultation process, in accordance with subdivisions 1 and 3 

of this subsection and subsection D of this section, with the LPOs, DEQ and EPA on 

the development of the implementation plans, transportation plans, TIPs, any revisions 

to the preceding documents, and associated conformity determinations.

a. MPOs, or their designee, shall be the lead agencies responsible 

for preparing the final document or decision and for assuring the adequacy of the 

interagency consultation process with respect to the development of the transportation 

plan, the TIP, and any amendments or revisions thereto. In the case of 

non-metropolitan areas, VDOT shall be the lead agency responsible for preparing the 

final document or decision and for assuring the adequacy of the interagency 

consultation process with respect to the development of the statewide transportation 
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plan, the statewide TIP, and any amendments or revisions thereto. The MPOs shall be 

the lead agencies responsible for preparing the final document or decision and for 

assuring the adequacy of the interagency consultation process with respect to any 

determinations of conformity under this chapter for which the MPO is responsible.

b. It shall be the affirmative responsibility of the lead agency to 

initiate the process by notifying other participants, convene meetings, assure that all 

relevant documents and information are supplied to all participants in the consultation 

process in a timely manner, prepare summaries of consultation meetings, maintain a 

written record of the consultation process, provide final documents and supporting 

information to each agency after approval or adoption, and to assure the adequacy of 

the interagency consultation process with respect to the subject document or decision.

c. Regular consultation on major activities (such as the 

development of a transportation plan, the development of a TIP, or any determination of 

conformity on transportation plans or TIPs) shall include meetings beginning on a date 

determined by the lead agency to be adequate to meet the date a final document is 

required and continuing at frequency mutually determined by the affected agencies. In 

addition, technical meetings shall be convened as necessary.

d. Each lead agency in the consultation process shall confer with 

all other agencies identified under subdivision 1 of this subsection with an interest in the 

document to be developed, provide all information to those agencies needed for 

meaningful input, solicit early and continuing input from those agencies, and prior to 

taking any action, consider the views of each agency and respond to those views in a 

timely, substantive written manner prior to any final decision on the documents. The 

views and written responses shall be made part of the record of any decision or action.

e. It shall be the responsibility of each agency specified in 

subdivision 1 of this subsection, when not fulfilling the responsibilities of lead agency, to 

confer with the lead agency and other participants in the consultation process, review 

and comment as appropriate (including comments in writing) on all proposed and final 

documents and decisions in a timely manner, attend consultation and decision 

meetings, provide input on any area of substantive expertise or responsibility, and 

provide technical assistance to the lead agency or to the consultation process when 

requested.

2. Representatives of the LPOs, DEQ, and EPA shall undertake an 

interagency consultation process, in accordance with this subdivision and subdivision 3 

of this subsection, with MPOs, VDOT, VDRPT, FHWA, and FTA on the development of 

control strategy implementation plan revisions, the list of TCMs in the applicable 

implementation plan, and any revisions to the preceding documents.

a. The DEQ, in conjunction with the LPOs, shall be the lead agency 
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responsible for preparing the final document or decision and for assuring the adequacy 

of the interagency consultation process with respect to the development of control 

strategy implementation plan revisions, the credits associated with the list of TCMs in 

the applicable implementation plan, and any amendments or revisions thereto.

b. It shall be the affirmative responsibility of the lead agency to 

initiate the process by notifying other participants, convene meetings, assure that all 

relevant documents and information are supplied to all participants in the consultation 

process in a timely manner, prepare minutes of consultation meetings, maintain a 

written record of the consultation process, provide final documents and supporting 

information to each agency after approval or adoption, and to assure the adequacy of 

the interagency consultation process with respect to the subject document or decision.

c. Regular consultation on the development of any control strategy 

implementation plan revision shall include meetings beginning on a date determined by 

the lead agency to be adequate to meet the date a final document is required and 

continuing at frequency mutually determined by the affected agencies. In addition, 

technical meetings shall be convened as necessary.

d. Each lead agency in the consultation process shall confer with 

all other agencies identified under subdivision 1 of this subsection with an interest in the 

document to be developed, provide all information to those agencies needed for 

meaningful input, solicit early and continuing input from those agencies, and prior to 

taking any action, consider the views of each agency and respond to those views in a 

timely, substantive written manner prior to any final decision on the documents. The 

views and written responses shall be made part of the record of any decision or action.

e. It shall be the responsibility of each agency specified in 

subdivision 1 of this subsection, when not fulfilling the responsibilities of lead agency, to 

confer with the lead agency and other participants in the consultation process, review 

and comment as appropriate (including comments in writing) on all proposed and final 

documents and decisions in a timely manner, attend consultation and decision 

meetings, provide input on any area of substantive expertise or responsibility, and 

provide technical assistance to the lead agency or to the consultation process when 

requested.

3. The specific roles and responsibilities of various participants in the 

interagency consultation process shall be as follows:

a. The MPOs shall be responsible for the following:

(1) Developing metropolitan transportation plans and TIPs in 

accordance with 23 CFR Part 450 and 49 CFR Part 613 and the Safe, Accountable, 

Flexible, Efficient, Transportation Equity Act: A Legacy for Users (Public Law No. 109-
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59).

(2) Adopting conformity determinations in conjunction with 

the adoption of transportation plans and TIPs and any revisions to the documents.

(3) In cooperation with VDOT, with assistance from VDRPT:

(a) Developing conformity assessments and 

associated documentation.

(b) Evaluating potential TCM projects and impacts.

(c) (i) Developing or approving transportation and 

related socio-economic data and planning assumptions, or both, and (ii) providing the 

data and assumptions for use in air quality analysis for implementation plan tracking 

and conformity of transportation plans, TIPs and projects.

(d) Monitoring regionally significant projects.

(e) Providing technical and policy input into the 

development of emissions budgets.

(f) Assuring the proper completion of transportation 

modeling, regional emissions analyses and documentation of timely implementation of 

TCMs needed for conformity assessments.

(g) Involving the DEQ and LPOs continuously in the 

process.

(h) Consulting with FHWA and FTA on (i) timely 

action on final findings of conformity, after consultation with other agencies as provided 

in this section; and (ii) guidance on conformity and the transportation planning process 

to agencies in interagency consultation.

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

updated motor vehicle emissions factors, emission inventories and budgets; and (ii) 

guidance on conformity criteria and procedures to the agencies involved in the 

interagency consultation process.

b. The VDOT, with assistance from the VDRPT, shall be 

responsible for the following:

(1) Developing statewide transportation plans and statewide 

TIPs.
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(2) Providing demand forecasting and on-road mobile source 

emission inventories.

(3) Circulating draft and final project environmental 

documents to other agencies.

(4) Convening air quality technical review meetings on 

specific projects as needed or when requested by other agencies.

(5) In cooperation with the MPOs:

(a) Developing conformity assessments and 

associated documentation.

(b) Evaluating potential TCM projects and impacts.

(c) (i) Developing or approving transportation and 

related planning assumptions, or both, and (ii) providing the data and assumptions for 

use in air quality analysis for implementation plan tracking and conformity of 

transportation plans, TIPs and projects.

(d) Monitoring regionally significant projects.

(e) Providing technical and policy input into the 

development of emissions budgets.

(f) Assuring the proper completion of transportation 

modeling, regional emissions analyses and documentation of timely implementation of 

TCMs need for conformity assessments.

(g) Involving the DEQ and LPOs continuously in the 

process.

(h) Consulting with FHWA and FTA on (i) timely 

action on final findings of conformity, after consultation with other agencies as provided 

in this section; and (ii) guidance on conformity and the transportation planning process 

to agencies in interagency consultation.

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

updated motor vehicle emissions factors, emission inventories and budgets; and (ii) 

guidance on conformity criteria and procedures to the agencies involved in the 

interagency consultation process.

c. The LPOs shall be responsible for the following:
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(1) Developing emissions inventories and budgets.

(2) Developing control strategy implementation plan 

revisions and maintenance plans.

(3) Providing a staff liaison to the MPOs for conformity and 

to be responsive to MPO requests for information and technical guidance.

(4) Involving the MPOs, VDOT AND VDRPT continuously in 

the process.

d. The DEQ shall be responsible for the following:

(1) Developing emissions inventories and budgets.

(2) Tracking attainment of air quality standards, and 

emission factor model updates.

(3) Gaining final approval at state level for control strategy 

implementation plan revisions and maintenance plans.

(4) Providing a staff liaison to the LPOs for conformity and to 

be responsive to LPO requests for information and technical guidance.

(5) Involving the LPOs continuously in the process.

e. The FHWA and FTA shall be responsible for the following:

(1) Assuring timely action on final findings of conformity, 

after consultation with other agencies as provided in this section.

(2) Providing guidance on conformity and the transportation 

planning process to agencies in interagency consultation.

f. The EPA shall be responsible for the following:

(1) Reviewing and approving updated motor vehicle 

emissions factors.

(2) Providing guidance on conformity criteria and procedures 

to agencies in interagency consultation.

(3) Assuring timely action on conformity analysis and 
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findings and implementation plan revisions.

4. The MPOs, LPOs, DEQ, VDOT and VDRPT may enter into agreements 

to set forth specific consultation procedures in more detail that are not in conflict with 

this section.

D. The provisions of this subsection shall be followed with regard to specific 

processes associated with interagency consultation.

1. An interagency consultation process involving the MPOs, LPOs, DEQ, 

VDOT, VDRPT, EPA, FHWA, and FTA shall be undertaken for the following:

a. Evaluating and choosing each model (or models) and associated 

methods and assumptions to be used in hot-spot analyses and regional emission 

analyses, including vehicle miles traveled (VMT) forecasting, to be initiated by VDOT, in 

consultation with the MPOs, and conducted in accordance with subdivisions C 1 and 3 

of this section.

b. Determining which transportation projects should be considered 

"regionally significant" for the purpose of regional emission analysis (in addition to those 

functionally classified as principal arterial or higher; or fixed guideway systems or 

extensions that offer an alternative to regional highway travel), and which projects 

should be considered to have a significant change in design concept and scope from 

the transportation plan or TIP, to be initiated by VDOT, in consultation with the MPOs, 

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

c. Evaluating whether projects otherwise exempted from meeting 

the requirements of 40 CFR 93.126 and 40 CFR 93.127 should be treated as 

non-exempt in cases where potential adverse emissions impacts may exist for any 

reason, to be initiated by VDOT, in consultation with the MPOs, and conducted in 

accordance with subdivisions C 1 and 3 of this section.

d. Making a determination, as required by 40 CFR 93.113(c)(1), 

whether past obstacles to implementation of TCMs that are behind the schedule 

established in the applicable implementation plan have been identified and are being 

overcome, and whether state and local agencies with influence over approvals or 

funding for TCMs are giving maximum priority to approval or funding for TCMs, to be 

initiated by VDOT as lead agency, in consultation with the MPOs and VDRPT, and 

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

process shall also consider whether delays in TCM implementation necessitate 

revisions to the applicable implementation plan to remove TCMs or substitute TCMs or 

other emission reduction measures.

e. Notifying all parties to the consultation process of transportation 
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plan or TIP amendments which merely add or delete exempt projects listed in 40 CFR 

93.126 or 40 CFR 93.127, to be initiated by VDOT in consultation with the MPOs, and 

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

f. Choosing conformity tests and methodologies for isolated rural 

nonattainment and maintenance areas, as required by 40 CFR 93.109(l)(2)(iii) 40 

CFR 93.109(n)(2)(iii), to be initiated by VDOT, in consultation with the MPOs, and in 

accordance with subdivisions C 1 and 3 of this section.

g. Determining what forecast of vehicle miles traveled (VMT) to use 

in establishing or tracking emissions budgets, developing transportation plans, TIPs, or 

control strategy implementation plan revisions, or making conformity determinations, to 

be initiated by VDOT, in consultation with the MPOs, and in accordance with 

subdivisions C 1 and 3 of this section.

2. An interagency consultation process in accordance with subsection C 

of this section involving the MPOs, LPOs, DEQ, VDOT, and VDRPT shall be 

undertaken for the following:

a. Evaluating events which may trigger new conformity 

determinations in addition to those triggering events established by 40 CFR 93.104, to 

be initiated by VDOT, in consultation with the MPOs and DEQ, and conducted in 

accordance with subdivisions C 1 and 3 of this section.

b. Consulting on emissions analysis for transportation activities 

which cross the borders of MPOs or nonattainment areas, to be initiated by VDOT in 

consultation with the MPOs, and conducted in accordance with subdivisions C 1 and 3 

of this section.

3. Where the metropolitan planning area does not include the entire 

nonattainment or maintenance area, an interagency consultation process in accordance 

with subdivisions C 1 and 3 of this section involving the MPOs and VDOT shall be 

undertaken for cooperative planning and analysis for purposes of determining 

conformity of all projects outside the metropolitan area and within the nonattainment or 

maintenance area, to be initiated by VDOT, in consultation with the MPOs, and in 

accordance with subdivisions C 1 and 3 of this section.

4. To assure that plans for construction of regionally significant projects 

which are not FHWA or FTA projects (including projects for which alternative locations, 

design concept and scope, or the no-build option are still being considered), including 

all those by recipients of funds designated under Title 23 USC or the Federal Transit 

Act, are disclosed to the MPO on a regular basis, and to assure that any changes to 

those plans are immediately disclosed, an interagency consultation process shall be 

undertaken, to be initiated by the MPO, in consultation with VDOT, and conducted in 
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accordance with subdivisions C 1 and 3 of this section involving the MPO, VDOT, 

VDRPT, and recipients of funds designated under Title 23 USC or the Federal Transit 

Act.

5. An interagency consultation process in accordance with subsections C 

1 and 3 of this section involving the MPOs and other recipients of funds designated 

under Title 23 USC or the Federal Transit Act shall be undertaken for developing 

assumptions regarding the location and design concept and scope of projects which are 

disclosed to the MPO as required by subdivision 4 of this subsection but whose 

sponsors have not yet decided these features in sufficient detail to perform the regional 

emissions analysis according to the requirements of 40 CFR 93.122, to be initiated by 

the MPO, in consultation with VDOT, and conducted in accordance with subdivisions C 

1 and 3 of this section.

6. An interagency consultation process in accordance with subdivisions C

1 and 3 of this section shall be undertaken for the design, schedule, and funding of 

research and data collection efforts and model developments in regional transportation 

(such as household or travel transportation surveys) to be initiated by the MPO, in

consultation with VDOT, and conducted in accordance with subdivisions C 1 and 3 of 

this section.

E. The provisions of this subsection shall be followed with regard to conflict 

resolution associated with interagency consultation.

1. Unresolved conflicts among state agencies, or between state agencies 

and the MPO(s), or among MPO member jurisdictions, shall be identified by an MPO or 

agency in writing to the other MPO, DEQ, VDOT, or VDRPT, with copies to FHWA, FTA 

and EPA. The MPO's or agency's written notice shall:

a. Explain the nature of the conflict;

b. Review options for resolving the conflict;

c. Describe the MPO's or agency's proposal to resolve the conflict;

d. Explain the consequences of not reaching a resolution; and

e. Request that comments on the matter be received within two 

weeks.

2. If the above action does not result in a resolution to the conflict, either 

of the following shall apply:

a. If the conflict is between the MPOs or between the MPO(s) and 
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VDOT or VDRPT or both, then the parties shall follow the coordination procedures of 23 

CFR 450.210.

b. If the conflict is between the MPO(s) or VDOT or VDRPT and the 

DEQ and the conflict can not be resolved by the affected agency heads, then the DEQ 

Director may elevate the conflict to the Governor in accordance with the procedures of 

subdivision 3 of this section. If the DEQ Director does not appeal to the Governor 

within 14 days as provided in subdivision 3 a of this subsection, the MPO or VDOT or 

VDRPT may proceed with its final conformity determination.

3. Appeals to the Governor by the DEQ Director under the provisions of 

subdivision 2 b of this subsection shall be in accordance with the following procedures:

a. The DEQ Director has 14 calendar days to appeal to the 

Governor after the MPO(s) or VDOT or VDRPT has 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 hand-delivered. 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 
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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 which 

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.

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