Administrative Code

Virginia Administrative Code
8/19/2022

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.

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

(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; §§ 110, and 182 of the federal Clean Air Act; 40 CFR Part 51.

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 33, Issue 4, eff. November 16, 2016; Volume 36, Issue 12, eff. March 4, 2020.

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.

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