Virginia Administrative Code

Database updated through April 1, 2011

Part I 

General Definitions 

9VAC5-151-10. Definitions.

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 this section. 

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, Titles 23 and 49 of the United States 

Code, 40 CFR 93.101, other U.S. Environmental Protection Agency regulations, other USDOT

regulations, 9VAC5-170-20 (definitions, Regulation for General Administration), or commonly ascribed to 

them by recognized authorities, in that order of priority. 

C. Terms defined. 

"Ambient air" means that portion of the atmosphere, external to buildings, to which the general public 

has access. 

"Applicable implementation plan" or "implementation plan" means, as defined in § 302(q) of the federal 

Clean Air Act, the portion (or portions) of the implementation plan, or most recent revision thereof, which 

has been approved under § 110, or promulgated under § 110(c), or promulgated or approved pursuant to 

regulations promulgated under § 301(d) and which implements the relevant requirements of the federal 

Clean Air Act. 

"Board" means the State Air Pollution Control Board or its designated representative. 

"Control strategy implementation plan revision" means the implementation plan that contains specific 

strategies for controlling the emissions of and reducing ambient levels of pollutants in order to satisfy the 

federal Clean Air Act requirements for demonstrations of reasonable further progress and attainment 

(including implementation plan revisions submitted to satisfy §§ 172(c), 182(b)(1), 182(c)(2)(A), 182(c)(2)

(B), 187(a)(7), 187(g), 189(a)(1)(B), 189(b)(1)(A), and 189(d); §§ 192(a) and 192(b), for nitrogen dioxide; 

and any other applicable provision of the federal Clean Air Act requiring a demonstration of reasonable 

further progress or attainment). 

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"Criteria pollutant" means any pollutant for which a national ambient air quality standard is established 

in 40 CFR Part 50. 

"DEQ" means any employee or other representative of the Virginia Department of Environmental 

Quality, as designated by the director. 

"DEQ Director" means the director of the Virginia Department of Environmental Quality or a

designated representative. 

"Donut areas" means geographic areas outside a metropolitan planning area boundary, but inside the 

boundary of a nonattainment or maintenance area that contains any part of one or more metropolitan 

areas. These areas are not isolated rural nonattainment and maintenance areas. 

"Emergency" means 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. 

"EPA" means the U.S. Environmental Protection Agency. 

"Federal Clean Air Act" means. Chapter 85 (§ 7401 et seq.) of Title 42 of the United States Code.

"FHWA" means the Federal Highway Administration of U.S. Department of Transportation (USDOT). 

"FHWA/FTA project" means any highway or transit project that is proposed to receive funding

assistance and approval through the Federal-Aid Highway Program or the federal mass transit program, 

or requires FHWA or FTA approval for some aspect of the project, such as connection to an interstate 

highway or deviation from applicable design standards on the interstate system. 

"FTA" means the Federal Transit Administration of USDOT. 

"Highway project" means an undertaking to implement or modify a highway facility or highway-related 

program. Such an undertaking consists of all required phases necessary for implementation. For

analytical purposes, it must be defined sufficiently to: 

1. Connect logical termini and be of sufficient length to address environmental matters on a broad 

scope; 

2. Have independent utility or significance, i.e., be usable and be a reasonable expenditure even if 

no additional transportation improvements in the area are made; and 

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3. Not restrict consideration of alternatives for other reasonably foreseeable transportation

improvements. 

"Isolated rural nonattainment and maintenance areas" means areas that do not contain or are not part 

of any metropolitan planning area as designated under the transportation planning regulations. Isolated 

rural areas do not have federally required metropolitan transportation plans or TIPs and do not have 

projects that are part of the emissions analysis of any MPO's metropolitan transportation plan or TIP. 

Projects in such areas are instead included in statewide transportation improvements programs. These 

areas are not donut areas. 

"LPO" or "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 DEQ, VDOT, the MPO(s) 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 decisionmaking. 

"Maintenance area" means any geographic region of the United States previously designated

nonattainment under § 107 of the federal Clean Air Act and subsequently redesignated to attainment 

subject to the requirement to develop a maintenance plan. 

"Maintenance plan" means a revision to the applicable implementation plan, meeting the requirements 

of § 175A of the federal Clean Air Act. 

"MPO" or "Metropolitan Planning Organization" means the organization designated as being

responsible, together with the state, for conducting the continuing, cooperative, and comprehensive 

planning process under 23 USC § 134 and created as a result of the designation process in 23 USC 

§ 134(d). It is the forum for cooperative transportation decision-making. 

"NEPA" means the National Environmental Policy Act of 1969 as amended (42 USC § 4321 et seq.) 

"NEPA process completion" means, with respect to FHWA or FTA, the point at which there is a 

specific action to make a determination that a project is categorically excluded, to make a Finding of No 

Significant Impact, or to issue a record of decision on a Final Environmental Impact Statement under 

NEPA. 

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"Nonattainment area" means any geographic region of the United States that has been designated as 

nonattainment under § 107 of the federal Clean Air Act for any pollutant for which a national ambient air 

quality standard exists. 

"PM10" means particulate matter with an aerodynamic diameter less than or equal to a nominal 10 

micrometers as measured by the applicable reference method or an equivalent method. 

"Project" means a highway project or transit project. 

"Recipient of funds designated under Title 23 USC or the Federal Transit Laws" means any agency at 

any level of state, county, city, or regional government that routinely receives Title 23 USC or Federal 

Transit Laws funds to construct FHWA/FTA projects, operate FHWA/FTA projects or equipment,

purchase equipment, or undertake other services or operations via contracts or agreements. This

definition does not include private landowners or developers, or contractors or entities that are only paid 

for services or products created by their own employees. 

"Regionally significant project" means a transportation project (other than an exempt project) that is on 

a facility that serves regional transportation needs (such as access to and from the area outside of the 

region, major activity centers in the region, major planned developments such as new retail malls, sports 

complexes, etc., or transportation terminals as well as most terminals themselves) and would normally be 

included in the modeling of a metropolitan area's transportation network, including at a minimum all

principal arterial highways and all fixed guideway transit facilities that offer an alternative to regional 

highway travel. 

"TCM" or "transportation control measure" means any measure that is specifically identified and 

committed to in the applicable implementation plan, including a substitute or additional TCM that is

incorporated into the applicable implementation plan through the process established in § 176(c)(8) of the 

federal Clean Air Act, that is either one of the types listed in § 108 of the federal Clean Air Act, or any 

other measure for the purpose of reducing emissions or concentrations of air pollutants from

transportation sources by reducing vehicle use or changing traffic flow or congestion conditions.

Notwithstanding the first sentence of this definition, vehicle technology-based, fuel-based, and

maintenance-based measures that control the emissions from vehicles under fixed traffic conditions are 

not TCMs for the purposes of this chapter. 

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"TIP" or "transportation improvement program" means a transportation improvement program

developed by a metropolitan planning organization under 23 USC § 134(j). 

"Transit" means mass transportation by bus, rail, or other conveyance that provides general or special 

service to the public on a regular and continuing basis. It does not include school buses or charter or 

sightseeing services. 

"Transit project" means an undertaking to implement or modify a transit facility or transit-related 

program; purchase transit vehicles or equipment; or provide financial assistance for transit operations. It 

does not include actions that are solely within the jurisdiction of local transit agencies, such as changes in 

routes, schedules, or fares. It may consist of several phases. For analytical purposes, it must be defined 

inclusively enough to: 

1. Connect logical termini and be of sufficient length to address environmental matters on a broad 

scope; 

2. Have independent utility or independent significance, i.e., be a reasonable expenditure even if 

no additional transportation improvements in the area are made; and 

3. Not restrict consideration of alternatives for other reasonably foreseeable transportation

improvements. 

"Transportation plan" means the official intermodal metropolitan transportation plan that is developed 

through the metropolitan planning process for the metropolitan planning area, developed pursuant to 23 

CFR Part 450. 

"Transportation project" means a highway project or a transit project. 

"USDOT" means the U.S. Department of Transportation. 

"VDOT" means the Virginia Department of Transportation. 

"VDRPT" means the Virginia Department of Rail and Public Transportation. 

"Welfare" means that language referring to effects on welfare includes, but is not limited to, effects on 

soils, water, crops, vegetation, manmade 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 

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§ 10.1-1308 of the Code of Virginia; § 176 (c) of the federal Clean Air Act. 

Historical Notes 

Derived from Virginia Register Volume 23, Issue 17, eff. May 31, 2007; amended, Virginia Register

Volume 25, Issue 6, eff. December 31, 2008. 

Part II 

General Provisions 

9VAC5-151-20. Applicability. 

A. The provisions of this chapter shall apply to the following actions: 

1. Except as provided for in subsection C of this section or 40 CFR 93.126, conformity

determinations are required for: 

a. The adoption, acceptance, approval or support of transportation plans and transportation 

plan amendments developed pursuant to 23 CFR Part 450 or 49 CFR Part 613 by a MPO or 

USDOT; 

b. The adoption, acceptance, approval or support of TIPs and TIP amendments developed 

pursuant to 23 CFR Part 450 or 49 CFR Part 613 by a MPO or USDOT; and 

c. The approval, funding, or implementation of FHWA/FTA projects. 

2. Conformity determinations are not required under this chapter for individual projects that are not 

FHWA/FTA projects. However, 40 CFR 93.121 applies to the projects if they are regionally

significant. 

3. This chapter shall apply to conformity determinations for which the final decision is made on or 

after the program approval date. For purposes of applying this subdivision, the program approval 

date of the regulation adopted by the board on March 26, 2007, shall be the date 30 days after the 

date on which a notice is published in the Virginia Register acknowledging that the administrator 

has approved the regulation adopted by the board on March 26, 2007. 

B. The provisions of this chapter shall apply in all nonattainment and maintenance areas for

transportation-related criteria pollutants for which the area is designated nonattainment or has a

maintenance plan. 

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1. The provisions of this chapter apply with respect to emissions of the following criteria pollutants: 

ozone, carbon monoxide (CO), nitrogen dioxide (NO2), 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). 

2. The provisions of this chapter also apply with respect to emissions of the following precursor 

pollutants: 

a. Volatile organic compounds (VOCs) and nitrogen oxides (NOX) in ozone areas; 

b. NOX in nitrogen dioxide areas; 

c. VOCs or NOX or both, in PM10 areas: 

(1) If the EPA Regional Administrator or the DEQ Director has made a finding that

transportation-related emissions of one or both of these precursors within the nonattainment 

area are a significant contributor to the PM10 nonattainment problem and has so notified the 

MPO and USDOT; or 

(2) If the applicable implementation plan (or implementation plan submission) establishes an 

approved (or adequate) budget for such emissions as part of the reasonable further progress, 

attainment or maintenance strategy; 

d. NOX in PM2.5 areas: 

(1) Unless both the EPA Regional Administrator and the DEQ Director have made a finding that 

transportation-related emissions of NOX within the nonattainment area are not a significant 

contributor to the PM2.5 nonattainment problem and have so notified the MPO and USDOT, or 

(2) The applicable implementation plan (or implementation plan submission) does not establish 

an approved (or adequate) budget for such emissions as part of the reasonable further

progress, attainment or maintenance strategy; and 

e. VOC, sulfur dioxide (S02) and/or ammonia (NH3) in PM2.5 areas either: 

(1) If the EPA Regional Administrator or the DEQ Director has made a finding that

transportation-related emissions of any of these precursors within the nonattainment area are a 

significant contributor to the PM2.5 nonattainment problem and has so notified the MPO and 

USDOT, or 

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(2) If the applicable implementation plan (or implementation plan submission) establishes an 

approved (or adequate) budget for such emissions as part of the reasonable further progress, 

attainment or maintenance strategy. 

3. The provisions of this chapter apply to PM2.5 nonattainment and maintenance areas with 

respect to PM2.5 from re-entrained road dust if the EPA Regional Administrator or the DEQ

Director has made a finding that re-entrained road dust emissions within the area are a significant 

contributor to the PM2.5 nonattainment problem and has so notified the MPO and USDOT, or if the 

applicable implementation plan (or implementation plan submission) includes re-entrained road 

dust in the approved (or adequate) budget as part of the reasonable further progress, attainment or 

maintenance strategy. Re-entrained road dust emissions are produced by travel on paved and 

unpaved roads (including emissions from anti-skid and deicing materials). 

4. The provisions of this chapter apply to maintenance areas through the last year of the area's 

maintenance plan approved under § 175A(b) of the federal Clean Air Act, unless the applicable 

implementation plan specifies that the provisions of this chapter shall apply for more than 20 years. 

C. In order to receive any FHWA/FTA approved or funding actions, including NEPA approvals, for a 

project phase subject to this chapter, a currently conforming transportation plan and TIP must be in place 

at the time of project approval as described in 40 CFR 93.114, except as provided by 40 CFR 93.114(b). 

D. For areas or portions of areas that have been continuously designated attainment or not designated 

for any National Ambient Air Quality Standard for ozone, CO, PM10, PM2.5 or NO2 since 1990 and are 

subsequently redesignated to nonattainment or designated nonattainment for any National Ambient Air 

Quality Standard for any of these pollutants, the provisions of this chapter shall not apply with respect to 

that National Ambient Air Quality Standard for 12 months following the effective date of final designation 

to nonattainment for each National Ambient Air Quality Standard for such pollutant. 

Statutory Authority 

§ 10.1-1308 of the Code of Virginia; § 176 (c) of the federal Clean Air Act. 

Historical Notes 

Derived from Virginia Register Volume 23, Issue 17, eff. May 31, 2007; amended, Virginia Register

Volume 25, Issue 6, eff. December 31, 2008. 

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9VAC5-151-30. Authority of board and DEQ. 

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 (§ 10.1-1300 et seq. of the Code of 

Virginia) and the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and by the 

adoption of this chapter, the board confers upon the DEQ 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 DEQ Director has final authority to adjudicate contested decisions of subordinates delegated 

powers by him 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; § 176(c) of the federal Clean Air Act. 

Historical Notes 

Derived from Virginia Register Volume 23, Issue 17, eff. May 31, 2007. 

Part III 

Criteria and Procedures for Making Conformity Determinations 

9VAC5-151-40. General. 

The Environmental Protection Agency (EPA) regulations promulgated at 40 CFR Part 93, Subpart A 

(Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects 

Developed, Funded or Approved Under Title 23 USC or the Federal Transit Laws) and designated in 

9VAC5-151-50 are incorporated by reference into this chapter as amended by the word or phrase 

substitutions given in 9VAC5-151-60. The 40 CFR section numbers appearing in 9VAC5-151-50 identify 

the specific provisions incorporated by reference. The specific version of the provisions incorporated by 

reference shall be that contained in the CFR (2010) in effect July 1, 2010. 

Statutory Authority 

§ 10.1-1308 of the Code of Virginia; § 176 (c) of the federal Clean Air Act. 

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Historical Notes 

Derived from Virginia Register Volume 23, Issue 17, eff. May 31, 2007; amended, Virginia Register

Volume 25, Issue 6, eff. December 31, 2008; Volume 27, Issue 11, eff. March 2, 2011. 

9VAC5-151-50. Designated provisions. 

Section—Title 

40 CFR 93.101 Definitions. 

40 CFR 93.102 Applicability. 

40 CFR 93.103 Priority. 

40 CFR 93.104 Frequency of conformity determinations. 

40 CFR 93.106 Content of transportation plans. 

40 CFR 93.107 Relationship of transportation plan and TIP conformity with the NEPA process. 

40 CFR 93.108 Fiscal constraints for transportation plans and TIPs. 

40 CFR 93.109 Criteria and procedures for determining conformity of transportation plans, programs, 

and projects: General. 

40 CFR 93.110 Criteria and procedures: Latest planning assumptions. 

40 CFR 93.111 Criteria and procedures: Latest emissions model. 

40 CFR 93.112 Criteria and procedures: Consultation. 

40 CFR 93.113 Criteria and procedures: Timely implementation of TCMs. 

40 CFR 93.114 Criteria and procedures: Currently conforming transportation plan and TIP. 

40 CFR 93.115 Criteria and procedures: Projects from a plan and TIP. 

40 CFR 93.116 Criteria and procedures: Localized CO, PM10, and PM2.5 violations (hot-spots). 

40 CFR 93.117 Criteria and procedures: Compliance with PM10 and PM2.5 control measures. 

40 CFR 93.118 Criteria and procedures: Motor vehicle emissions budget. 

40 CFR 93.119 Criteria and procedures: Interim emissions in areas without motor vehicle emissions 

budgets. 

40 CFR 93.120 Consequences of control strategy implementation plan failures. 

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40 CFR 93.121 Requirements for adoption or approval of projects by other recipients of funds

designated under Title 23 USC or the Federal Transit Laws. 

40 CFR 93.122 Procedures for determining regional transportation-related emissions. 

40 CFR 93.123 Procedures for determining localized CO, PM10, and PM2.5 concentrations (hot-spot 

analysis). 

40 CFR 93.124 Using the motor vehicle emissions budget in the applicable implementation plan (or 

implementation plan submission). 

40 CFR 93.125 Enforceability of design concept and scope and project-level mitigation and control 

measures. 

40 CFR 93.126 Exempt projects. 

40 CFR 93.127 Projects exempt from regional emissions analyses. 

40 CFR 93.128 Traffic signal synchronization projects. 

40 CFR 93.129 Special exemptions from conformity requirements for pilot program areas. 

Statutory Authority 

§ 10.1-1308 of the Code of Virginia; § 176(c) of the federal Clean Air Act. 

Historical Notes 

Derived from Virginia Register Volume 23, Issue 17, eff. May 31, 2007. 

9VAC5-151-60. Word or phrase substitutions. 

In all of the provisions designated in 9VAC5-151-50 substitute: 

1. DEQ Director for director of the state air quality agency or state air agency. 

2. MPO for agency or organization developing the transportation plan. 

3. VDOT for state department of transportation. 

4. USDOT for DOT. 

5. This chapter for this subpart. 

6. 9VAC5-151-20 B for § 93.102(b). 

7. 9VAC5-151-20 D for § 93.102(d) 

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8. 9VAC5-151-70 for § 93.105. 

9. 9VAC5-151-70 D 1 f for § 93.105(c)(1)(vii). 

10. 9VAC5-151-70 B and F for § 93.105 (a)(2) and (e). 

11. 9VAC5-151-70 D 1 a for § 93.105(c)(1)(i). 

12. 9VAC5-151-70 D 1 c for § 93.105(c)(1)(iii). 

13. 9VAC5-151-70 E for § 93.105(d). 

14. 9VAC5-151-70 F for § 93.105(e). 

Statutory Authority 

§ 10.1-1308 of the Code of Virginia; § 176(c) of the federal Clean Air Act. 

Historical Notes 

Derived from Virginia Register Volume 23, Issue 17, eff. May 31, 2007. 

9VAC5-151-61. (Repealed.)

Historical Notes 

Derived from Virginia Register Volume 23, Issue 17, eff. May 31, 2007; repealed, Virginia Register

Volume 25, Issue 6, eff. December 31, 2008. 

9VAC5-151-70. Consultation. 

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

section for interagency consultation, conflict resolution and public consultation with each other and with 

local or regional offices of EPA, FHWA, and FTA on the development of control strategy implementation 

plan revisions, the list of TCMs in the applicable implementation plan, transportation plans, TIPs, and 

associated conformity determinations required by this chapter. 

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

conformity determinations, shall provide reasonable opportunity for consultation with LPOs, DEQ and 

EPA on the issues in subdivision D 1 of this section. 

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

interagency consultation. 

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

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consultation process, in accordance with subdivisions 1 and 3 of this subsection and subsection D 

of this section, with the LPOs, DEQ and EPA on the development of implementation plans,

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

determinations. 

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

document or decision and for assuring the adequacy of the interagency consultation process 

with respect to the development of the transportation plan, the TIP, and any amendments or 

revisions thereto. In the case of nonmetropolitan areas, VDOT shall be the lead agency

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

interagency consultation process with respect to the development of the statewide

transportation plan, the statewide TIP, and any amendments or revisions thereto. The MPOs 

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

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

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

b. It shall be the affirmative responsibility of the lead agency to initiate the process by notifying 

other participants, convene meetings, assure that all relevant documents and information are 

supplied to all participants in the consultation process in a timely manner, prepare summaries 

of consultation meetings, maintain a written record of the consultation process, provide final 

documents and supporting information to each agency after approval or adoption, and to 

assure the adequacy of the interagency consultation process with respect to the subject

document or decision. 

c. Regular consultation on major activities (such as the development of a transportation plan, 

the development of a TIP, or any determination of conformity on transportation plans or TIPs) 

shall include meetings beginning on a date determined by the lead agency to be adequate to 

meet the date a final document is required and continuing at frequency mutually determined by 

the affected agencies. In addition, technical meetings shall be convened as necessary. 

d. Each lead agency in the consultation process shall confer with all other agencies identified 

under subdivision 1 of this subsection with an interest in the document to be developed, provide 

all information to those agencies needed for meaningful input, solicit early and continuing input 

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from those agencies, and prior to taking any action, consider the views of each agency and 

respond to those views in a timely, substantive written manner prior to any final decision on the 

documents. The views and written responses shall be made part of the record of any decision 

or action. 

e. It shall be the responsibility of each agency specified in subdivision 1 of this subsection, 

when not fulfilling the responsibilities of lead agency, to confer with the lead agency and other 

participants in the consultation process, review and comment as appropriate (including

comments in writing) on all proposed and final documents and decisions in a timely manner, 

attend consultation and decision meetings, provide input on any area of substantive expertise 

or responsibility, and provide technical assistance to the lead agency or to the consultation 

process when requested. 

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

process, in accordance with this subdivision and subdivision 3 of this subsection, with MPOs, 

VDOT, VDRPT, FHWA, and FTA on the development of control strategy implementation plan 

revisions, the list of TCMs in the applicable implementation plan, and any revisions to the

preceding documents. 

a. The DEQ, in conjunction with the LPOs, shall be the lead agency responsible for preparing 

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

process with respect to the development of control strategy implementation plan revisions, the 

credits associated with the list of TCMs in the applicable implementation plan, and any

amendments or revisions thereto. 

b. It shall be the affirmative responsibility of the lead agency to initiate the process by notifying 

other participants, convene meetings, assure that all relevant documents and information are 

supplied to all participants in the consultation process in a timely manner, prepare minutes of 

consultation meetings, maintain a written record of the consultation process, provide final

documents and supporting information to each agency after approval or adoption, and to 

assure the adequacy of the interagency consultation process with respect to the subject

document or decision. 

c. Regular consultation on the development of any control strategy implementation plan revision 

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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. 109-59). 

(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. 

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(c) (i) Developing or approving transportation and related socio-economic data and planning 

assumptions, or both, and (ii) providing the data and assumptions for use in air quality analysis 

for implementation plan tracking and conformity of transportation plans, TIPs and projects. 

(d) Monitoring regionally significant projects. 

(e) Providing technical and policy input into the development of emissions budgets. 

(f) Assuring the proper completion of transportation modeling, regional emissions analyses and 

documentation of timely implementation of TCMs needed for conformity assessments. 

(g) Involving the DEQ and LPOs continuously in the process. 

(h) Consulting with FHWA and FTA on (i) timely action on final findings of conformity, after 

consultation with other agencies as provided in this section; and (ii) guidance on conformity and 

the transportation planning process to agencies in interagency consultation. 

(i) Consulting with EPA on (i) review and approval of updated motor vehicle emissions factors, 

emission inventories and budgets; and (ii) guidance on conformity criteria and procedures to 

the agencies involved in the interagency consultation process. 

b. The VDOT, with assistance from the VDRPT, shall be responsible for the following: 

(1) Developing statewide transportation plans and statewide TIPs. 

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

(3) Circulating draft and final project environmental documents to other agencies. 

(4) Convening air quality technical review meetings on specific projects as needed or when 

requested by other agencies. 

(5) In cooperation with the MPOs: 

(a) Developing conformity assessments and associated documentation. 

(b) Evaluating potential TCM projects and impacts. 

(c) (i) Developing or approving transportation and related planning assumptions, or both, and 

(ii) providing the data and assumptions for use in air quality analysis for implementation plan 

tracking and conformity of transportation plans, TIPs and projects. 

(d) Monitoring regionally significant projects. 

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(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: 

(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. 

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(2) Providing guidance on conformity and the transportation planning process to agencies in 

interagency consultation. 

f. The EPA shall be responsible for the following: 

(1) Reviewing and approving updated motor vehicle emissions factors. 

(2) Providing guidance on conformity criteria and procedures to agencies in interagency

consultation. 

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

revisions. 

4. The MPOs, LPOs, DEQ, VDOT and VDRPT may enter into agreements to set forth specific 

consultation procedures in more detail that are not in conflict with this section. 

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

with interagency consultation. 

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

FHWA, and FTA shall be undertaken for the following: 

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

to be used in 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 nonexempt in cases where potential adverse 

emissions impacts may exist for any reason, to be initiated by VDOT, in consultation with the 

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

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

implementation of TCMs that are behind the schedule established in the applicable

implementation plan have been identified and are being overcome, and whether state and local 

agencies with influence over approvals or funding for TCMs are giving maximum priority to 

approval or funding for TCMs, to be initiated by VDOT as lead agency, in consultation with the 

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

This consultation process shall also consider whether delays in TCM implementation

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

TCMs or other emission reduction measures. 

e. Notifying all parties to the consultation process of transportation plan or TIP amendments 

that merely add or delete exempt projects listed in 40 CFR 93.126 or 40 CFR 93.127, to be 

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

subdivisions C 1 and 3 of this section. 

f. Choosing conformity tests and methodologies for isolated rural nonattainment and

maintenance areas, as required by 40 CFR 93.109(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 that may trigger new conformity determinations in addition to those

triggering events established by 40 CFR 93.104, to be initiated by VDOT, in consultation with 

the MPOs and DEQ, and conducted in accordance with subdivisions C 1 and 3 of this section. 

b. Consulting on emissions analysis for transportation activities that cross the borders of MPOs 

or nonattainment areas, to be initiated by VDOT in consultation with the MPOs, and conducted 

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

3. Where the metropolitan planning area does not include the entire nonattainment or maintenance 

area, an interagency consultation process in accordance with subdivisions C 1 and 3 of this section 

involving the MPOs and VDOT shall be undertaken for cooperative planning and analysis for

purposes of determining conformity of all projects outside the metropolitan area and within the 

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

accordance with subdivisions C 1 and 3 of this section. 

4. To assure that plans for construction of regionally significant projects that are not FHWA or FTA 

projects (including projects for which alternative locations, design concept and scope, or the nobuild option are still being considered), including all those by recipients of funds designated under 

Title 23 USC or the Federal Transit Act, are disclosed to the MPO on a regular basis, and to 

assure that any changes to those plans are immediately disclosed, an interagency consultation 

process shall be undertaken, to be initiated by the MPO, in consultation with VDOT, and conducted 

in accordance with subdivisions C 1 and 3 of this section involving the MPO, VDOT, VDRPT, and 

recipients of funds designated under Title 23 USC or the Federal Transit Act. 

5. An interagency consultation process in accordance with subsections C 1 and 3 of this section 

involving the MPOs and other recipients of funds designated under Title 23 USC or the Federal 

Transit Act shall be undertaken for developing assumptions regarding the location and design 

concept and scope of projects that are disclosed to the MPO as required by subdivision 4 of this 

subsection but whose sponsors have not yet decided these features in sufficient detail to perform 

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

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

this section. 

6. An interagency consultation process in accordance with subdivisions C 1 and 3 of this section 

shall be undertaken for the design, schedule, and funding of research and data collection efforts 

and model developments in regional transportation (such as household or travel transportation 

surveys) to be initiated by the MPO, in consultation with VDOT, and conducted in accordance with 

subdivisions C 1 and 3 of this section. 

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

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interagency consultation. 

1. Unresolved conflicts among state agencies, or between state agencies and the MPO(s), or 

among MPO member jurisdictions, shall be identified by an MPO or agency in writing to the other 

MPO, DEQ, VDOT, or VDRPT, with copies to FHWA, FTA and EPA. The MPO's or agency's 

written notice shall: 

a. Explain the nature of the conflict; 

b. Review options for resolving the conflict; 

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

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

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

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

apply: 

a. If the conflict is between the MPOs or between the MPO(s) and VDOT or VDRPT or both, 

then the parties shall follow the coordination procedures of 23 CFR 450.210. 

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

not be resolved by the affected agency heads, then the DEQ Director may elevate the conflict 

to the Governor in accordance with the procedures of subdivision 3 of this section. If the DEQ 

Director does not appeal to the Governor within 14 days as provided in subdivision 3 a of this 

subsection, the MPO or VDOT or VDRPT may proceed with its final conformity determination. 

3. Appeals to the Governor by the DEQ Director under the provisions of subdivision 2 b of this 

subsection shall be in accordance with the following procedures: 

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

VDOT or VDRPT has 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 

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VDRPT resolution of DEQ's comments; and DEQ's appeal document. 

c. The DEQ shall provide a complete appeal package to the MPO, VDOT and VDRPT within 24 

hours of the time the appeal is filed with the Governor's Office. 

d. If the Governor does not concur with the conformity determination, he may direct revision of 

the applicable implementation plan, revision of the planned program of projects, revision of the 

conformity analysis or any combination of the preceding. 

e. If the Governor concurs with the conformity determination made by the MPO and VDOT, the 

MPO and VDOT may proceed with the final conformity determination. 

f. The Governor may delegate his role in this process, but not to the agency head or staff of 

DEQ, VDOT or VDRPT or the Commonwealth Board of Transportation. 

4. Nothing in this section shall prevent the state agencies and MPOs from making efforts upon their 

own initiative to obtain mutual conflict resolution through conference or other appropriate means. 

F. The provisions of this subsection shall be followed with regard to public consultation. 

1. The MPOs shall establish a proactive involvement process that provides reasonable opportunity 

for review and comment by, at a minimum, providing reasonable public access to technical and 

policy information considered by the MPO at the beginning of the public comment period and prior 

to taking formal action on a conformity determination for all transportation plans and TIPs,

consistent with the requirements of 23 CFR 450.316(a). 

2. The MPOs shall specifically address in writing public comments regarding plans for a regionally 

significant project, not receiving FHWA or FTA funding or approval, and how the project is properly 

reflected in the emission analysis supporting a proposed conformity finding for a transportation 

plan or TIP. 

3. The MPOs shall also provide an opportunity for public involvement in conformity determinations 

for projects where otherwise required by law. 

Statutory Authority 

§ 10.1-1308 of the Code of Virginia; § 176(c) of the federal Clean Air Act. 

Historical Notes 

Derived from Virginia Register Volume 23, Issue 17, eff. May 31, 2007; amended, Virginia Register

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Volume 25, Issue 6, eff. December 31, 2008; Volume 27, Issue 11, eff. March 2, 2011. 

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