Virginia Administrative Code
Title 9 - ENVIRONMENT
Agency 5 - STATE AIR POLLUTION CONTROL BOARD
Chapter 151 - Regulation for Transportation Conformity
Part III - Criteria and Procedures for Making Conformity Determinations
Section 9VAC5-151-70 - Consultation
Universal Citation: 9 VA Admin Code 5-151-70
Current through Register Vol. 41, No. 3, September 23, 2024
A. The MPOs, LPOs, DEQ, VDOT and VDRPT shall undertake the procedures prescribed in this section for interagency consultation, conflict resolution and public consultation with each other and with local or regional offices of EPA, FHWA, and FTA on the development of control strategy implementation plan revisions, the list of TCMs in the applicable implementation plan, transportation plans, TIPs, and associated conformity determinations required by this chapter.
B. Until EPA grants approval of this chapter, the MPOs, and VDOT and VDRPT, prior to making conformity determinations, shall provide reasonable opportunity for consultation with LPOs, DEQ and EPA on the issues in subdivision D 1 of this section.
C. The provisions of this subsection shall be followed with regard to general factors associated with interagency consultation.
1. Representatives of the MPOs,
VDOT, VDRPT, FHWA, and FTA shall undertake an interagency consultation process,
in accordance with subdivisions 1 and 3 of this subsection and subsection D of
this section, with the LPOs, DEQ and EPA on the development of implementation
plans, transportation plans, TIPs, any revisions to the preceding documents,
and associated conformity determinations.
a.
MPOs, or their designee, shall be the lead agencies responsible for preparing
the final document or decision and for assuring the adequacy of the interagency
consultation process with respect to the development of the transportation
plan, the TIP, and any amendments or revisions thereto. In the case of
nonmetropolitan areas, VDOT shall be the lead agency responsible for preparing
the final document or decision and for assuring the adequacy of the interagency
consultation process with respect to the development of the statewide
transportation plan, the statewide TIP, and any amendments or revisions
thereto. The MPOs shall be the lead agencies responsible for preparing the
final document or decision and for assuring the adequacy of the interagency
consultation process with respect to any determinations of conformity under
this chapter for which the MPO is responsible.
b. It shall be the affirmative responsibility
of the lead agency to initiate the process by notifying other participants,
convene meetings, assure that all relevant documents and information are
supplied to all participants in the consultation process in a timely manner,
prepare summaries of consultation meetings, maintain a written record of the
consultation process, provide final documents and supporting information to
each agency after approval or adoption, and to assure the adequacy of the
interagency consultation process with respect to the subject document or
decision.
c. Regular consultation
on major activities (such as the development of a transportation plan, the
development of a TIP, or any determination of conformity on transportation
plans or TIPs) shall include meetings beginning on a date determined by the
lead agency to be adequate to meet the date a final document is required and
continuing at frequency mutually determined by the affected agencies. In
addition, technical meetings shall be convened as necessary.
d. Each lead agency in the consultation
process shall confer with all other agencies identified under subdivision 1 of
this subsection with an interest in the document to be developed, provide all
information to those agencies needed for meaningful input, solicit early and
continuing input from those agencies, and prior to taking any action, consider
the views of each agency and respond to those views in a timely, substantive
written manner prior to any final decision on the documents. The views and
written responses shall be made part of the record of any decision or
action.
e. It shall be the
responsibility of each agency specified in subdivision 1 of this subsection,
when not fulfilling the responsibilities of lead agency, to confer with the
lead agency and other participants in the consultation process, review and
comment as appropriate (including comments in writing) on all proposed and
final documents and decisions in a timely manner, attend consultation and
decision meetings, provide input on any area of substantive expertise or
responsibility, and provide technical assistance to the lead agency or to the
consultation process when requested.
2. Representatives of the LPOs, DEQ, and EPA
shall undertake an interagency consultation process, in accordance with this
subdivision and subdivision 3 of this subsection, with MPOs, VDOT, VDRPT, FHWA,
and FTA on the development of control strategy implementation plan revisions,
the list of TCMs in the applicable implementation plan, and any revisions to
the preceding documents.
a. The DEQ, in
conjunction with the LPOs, shall be the lead agency responsible for preparing
the final document or decision and for assuring the adequacy of the interagency
consultation process with respect to the development of control strategy
implementation plan revisions, the credits associated with the list of TCMs in
the applicable implementation plan, and any amendments or revisions
thereto.
b. It shall be the
affirmative responsibility of the lead agency to initiate the process by
notifying other participants, convene meetings, assure that all relevant
documents and information are supplied to all participants in the consultation
process in a timely manner, prepare minutes of consultation meetings, maintain
a written record of the consultation process, provide final documents and
supporting information to each agency after approval or adoption, and to assure
the adequacy of the interagency consultation process with respect to the
subject document or decision.
c.
Regular consultation on the development of any control strategy implementation
plan revision shall include meetings beginning on a date determined by the lead
agency to be adequate to meet the date a final document is required and
continuing at frequency mutually determined by the affected agencies. In
addition, technical meetings shall be convened as necessary.
d. Each lead agency in the consultation
process shall confer with all other agencies identified under subdivision 1 of
this subsection with an interest in the document to be developed, provide all
information to those agencies needed for meaningful input, solicit early and
continuing input from those agencies, and prior to taking any action, consider
the views of each agency and respond to those views in a timely, substantive
written manner prior to any final decision on the documents. The views and
written responses shall be made part of the record of any decision or
action.
e. It shall be the
responsibility of each agency specified in subdivision 1 of this subsection,
when not fulfilling the responsibilities of lead agency, to confer with the
lead agency and other participants in the consultation process, review and
comment as appropriate (including comments in writing) on all proposed and
final documents and decisions in a timely manner, attend consultation and
decision meetings, provide input on any area of substantive expertise or
responsibility, and provide technical assistance to the lead agency or to the
consultation process when requested.
3. The specific roles and responsibilities of
various participants in the interagency consultation process shall be as
follows:
a. The MPOs shall be responsible for
the following:
(1) Developing metropolitan
transportation plans and TIPs in accordance with 23 CFR Part 450 and 49 CFR
Part 613 and the Safe, Accountable, Flexible, Efficient, Transportation Equity
Act: A Legacy for Users (Public Law No. 109-59).
(2) Adopting conformity determinations in
conjunction with the adoption of transportation plans and TIPs and any
revisions to the documents.
(3) In
cooperation with VDOT, with assistance from VDRPT:
(a) Developing conformity assessments and
associated documentation.
(b)
Evaluating potential TCM projects and impacts.
(c)
(i)
Developing or approving transportation and related socio-economic data and
planning assumptions, or both, and
(ii) providing the data and assumptions for
use in air quality analysis for implementation plan tracking and conformity of
transportation plans, TIPs and projects.
(d) Monitoring regionally significant
projects.
(e) Providing technical
and policy input into the development of emissions budgets.
(f) Assuring the proper completion of
transportation modeling, regional emissions analyses and documentation of
timely implementation of TCMs needed for conformity assessments.
(g) Involving the DEQ and LPOs continuously
in the process.
(h) Consulting with
FHWA and FTA on (i) timely action on final findings of conformity, after
consultation with other agencies as provided in this section; and (ii) guidance
on conformity and the transportation planning process to agencies in
interagency consultation.
(i)
Consulting with EPA on (i) review and approval of updated motor vehicle
emissions factors, emission inventories and budgets; and
(ii) guidance on conformity criteria and
procedures to the agencies involved in the interagency consultation
process.
b.
The VDOT, with assistance from the VDRPT, shall be responsible for the
following:
(1) Developing statewide
transportation plans and statewide TIPs.
(2) Providing demand forecasting and on-road
mobile source emission inventories.
(3) Circulating draft and final project
environmental documents to other agencies.
(4) Convening air quality technical review
meetings on specific projects as needed or when requested by other
agencies.
(5) In cooperation with
the MPOs:
(a) Developing conformity
assessments and associated documentation.
(b) Evaluating potential TCM projects and
impacts.
(c)
(i) Developing or approving transportation
and related planning assumptions, or both, and
(ii) providing the data and assumptions for
use in air quality analysis for implementation plan tracking and conformity of
transportation plans, TIPs and projects.
(d) Monitoring regionally significant
projects.
(e) Providing technical
and policy input into the development of emissions budgets.
(f) Assuring the proper completion of
transportation modeling, regional emissions analyses and documentation of
timely implementation of TCMs need for conformity assessments.
(g) Involving the DEQ and LPOs continuously
in the process.
(h) Consulting with
FHWA and FTA on (i) timely action on final findings of conformity, after
consultation with other agencies as provided in this section; and (ii) guidance
on conformity and the transportation planning process to agencies in
interagency consultation.
(i)
Consulting with EPA on (i) review and approval of updated motor vehicle
emissions factors, emission inventories and budgets; and
(ii) guidance on conformity criteria and
procedures to the agencies involved in the interagency consultation
process.
c.
The LPOs shall be responsible for the following:
(1) Developing emissions inventories and
budgets.
(2) Developing control
strategy implementation plan revisions and maintenance plans.
(3) Providing a staff liaison to the MPOs for
conformity and to be responsive to MPO requests for information and technical
guidance.
(4) Involving the MPOs,
VDOT AND VDRPT continuously in the process.
d. The DEQ shall be responsible for the
following:
(1) Developing emissions
inventories and budgets.
(2)
Tracking attainment of air quality standards, and emission factor model
updates.
(3) Gaining final approval
at state level for control strategy implementation plan revisions and
maintenance plans.
(4) Providing a
staff liaison to the LPOs for conformity and to be responsive to LPO requests
for information and technical guidance.
(5) Involving the LPOs continuously in the
process.
e. The FHWA and
FTA shall be responsible for the following:
(1) Assuring timely action on final findings
of conformity, after consultation with other agencies as provided in this
section.
(2) Providing guidance on
conformity and the transportation planning process to agencies in interagency
consultation.
f. The EPA
shall be responsible for the following:
(1)
Reviewing and approving updated motor vehicle emissions factors.
(2) Providing guidance on conformity criteria
and procedures to agencies in interagency consultation.
(3) Assuring timely action on conformity
analysis and findings and implementation plan revisions.
4. The MPOs, LPOs, DEQ, VDOT and
VDRPT may enter into agreements to set forth specific consultation procedures
in more detail that are not in conflict with this section.
D. The provisions of this subsection shall be followed with regard to specific processes associated with interagency consultation.
1. An interagency consultation
process involving the MPOs, LPOs, DEQ, VDOT, VDRPT, EPA, FHWA, and FTA shall be
undertaken for the following:
a. Evaluating
and choosing each model (or models) and associated methods and assumptions to
be used in 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 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(g)(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 in
accordance with subdivisions C 1 and 3 of this section.
3. Where the metropolitan planning area does
not include the entire nonattainment or maintenance area, an interagency
consultation process in accordance with subdivisions C 1 and 3 of this section
involving the MPOs and VDOT shall be undertaken for cooperative planning and
analysis for purposes of determining conformity of all projects outside the
metropolitan area and within the nonattainment or maintenance area, to be
initiated by VDOT, in consultation with the MPOs, and in accordance with
subdivisions C 1 and 3 of this section.
4. To assure that plans for construction of
regionally significant projects that are not FHWA or FTA projects (including
projects for which alternative locations, design concept and scope, or the
no-build option are still being considered), including all those by recipients
of funds designated under Title 23 USC or the Federal Transit Act, are
disclosed to the MPO on a regular basis, and to assure that any changes to
those plans are immediately disclosed, an interagency consultation process
shall be undertaken, to be initiated by the MPO, in consultation with VDOT, and
conducted in accordance with subdivisions C 1 and 3 of this section involving
the MPO, VDOT, VDRPT, and recipients of funds designated under Title 23 USC or
the Federal Transit Act.
5. An
interagency consultation process in accordance with subsections C 1 and 3 of
this section involving the MPOs and other recipients of funds designated under
Title 23 USC or the Federal Transit Act shall be undertaken for developing
assumptions regarding the location and design concept and scope of projects
that are disclosed to the MPO as required by subdivision 4 of this subsection
but whose sponsors have not yet decided these features in sufficient detail to
perform the regional emissions analysis according to the requirements of
40 CFR
93.122, to be initiated by the MPO, in
consultation with VDOT, and conducted in accordance with subdivisions C 1 and 3
of this section.
6. An interagency
consultation process in accordance with subdivisions C 1 and 3 of this section
shall be undertaken for the design, schedule, and funding of research and data
collection efforts and model developments in regional transportation (such as
household or travel transportation surveys) to be initiated by the MPO, in
consultation with VDOT, and conducted in accordance with subdivisions C 1 and 3
of this section.
E. The provisions of this subsection shall be followed with regard to conflict resolution associated with interagency consultation.
1. Unresolved conflicts among state agencies,
or between state agencies and the MPO(s), or among MPO member jurisdictions,
shall be identified by an MPO or agency in writing to the other MPO, DEQ, VDOT,
or VDRPT, with copies to FHWA, FTA and EPA. The MPO's or agency's written
notice shall:
a. Explain the nature of the
conflict;
b. Review options for
resolving the conflict;
c. Describe
the MPO's or agency's proposal to resolve the conflict;
d. Explain the consequences of not reaching a
resolution; and
e. Request that
comments on the matter be received within two weeks.
2. If the above action does not result in a
resolution to the conflict, either of the following shall apply:
a. If the conflict is between the MPOs or
between the MPO(s) and VDOT or VDRPT or both, then the parties shall follow the
coordination procedures of 23 CFR 450.210.
b. If the conflict is between the MPO(s) or
VDOT or VDRPT and the DEQ and the conflict can not be resolved by the affected
agency heads, then the DEQ Director may elevate the conflict to the Governor in
accordance with the procedures of subdivision 3 of this section. If the DEQ
Director does not appeal to the Governor within 14 days as provided in
subdivision 3 a of this subsection, the MPO or VDOT or VDRPT may proceed with
its final conformity determination.
3. Appeals to the Governor by the DEQ
Director under the provisions of subdivision 2 b of this subsection shall be in
accordance with the following procedures:
a.
The DEQ Director has 14 calendar days to appeal to the Governor after the
MPO(s) or VDOT or VDRPT has 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 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.
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