GENERAL NOTICES/ERRATA
Vol. 25 Iss. 13 - March 02, 2009

GENERAL NOTICES/ERRATA

STATE AIR POLLUTION CONTROL BOARD

Amendment of Air Regulations

Notice of intended action: The Air Pollution Control Board intends to consider amendment of a regulation on air quality. A regulation is a general rule governing people's rights or conduct that is upheld by a state agency.

9VAC5-80 – Rev. L07, Permits for Stationary Sources

Purpose of notice: The board is seeking comments through the Department of Environmental Quality on the amendment, including but not limited to (i) the analysis prepared by the Department on the potential practical impact the amended regulation would have on air quality, (ii) effects of the regulation on farm forest land preservation, and (iii) impacts on small businesses.

Public comment period: February 9, 2009, to March 11, 2009.

Subject matter and intent of proposal: On May 1, 2007 (72 FR 24060), EPA promulgated a final rule excluding ethanol production facilities from the definition of "chemical processing plant" in the federal new source review (NSR) permitting program for major sources located in Prevention of Significant Deterioration (PSD) areas and for major sources located in areas not in attainment with the National Ambient Area Quality Standards (NAAQS). The effect of this revision was to raise the applicability threshold level for ethanol production facilities from 100 tons per year (tpy) of a NSR regulated pollutant to 250 tpy of a NSR regulated pollutant in EPA’s major NSR permit programs.

Virginia has an EPA-approved State Implementation Plan (SIP) for the major NSR permit programs set forth in the state’s air pollution control regulations. At the State Air Pollution Control Board (SAPCB) meeting on November 30, 2007, the Department of Environmental Quality (DEQ) presented to the board a proposal to revise Virginia’s air pollution control regulations to make them consistent with this federal rule change. In particular, the proposed changes would revise 9VAC5-80, Article 8, pertaining to "Permits for Major Stationary Sources and Major Modifications Locating in Prevention of Significant Deterioration Areas" and 9VAC5-80, Article 9, pertaining to "Permits for Major Stationary Sources and Major Modifications Locating in Nonattainment Areas or the Ozone Transport Region."

The substantive amendments proposed are to the definition of "major source" (9VAC5-80-60 C, subdivision b (20) of the definition of "major source"); the definition of "major stationary source" (9VAC5-80-1615 C, subdivisions a (1)(w) and c (20) of the definition of "major stationary source"); the list of exemptions (9VAC5-80-1695 A 1 v); the definition of "major stationary source" (9VAC5-80-2010 C, subdivision c (22) of the definition of "major stationary source"); and the list of exemptions (subdivision 22 of 9VAC5-80-2140) would be revised to change the reference to chemical process plants in order to exclude chemical process plants that are ethanol production facilities.

How to comment: DEQ accepts written comments by email, fax and postal mail. All written comments must include the full name, address and telephone number of the person commenting and be received by DEQ by 5 p.m. on the last day of the comment period. All exhibits and documents received are part of the public record.

How a decision is made: After comments have been considered, the board will decide whether to take action on the amendment.

To review regulation documents: The department analysis and the regulatory text are included in this notice.

ANALYSIS OF POTENTIAL IMPACT OF VIRGINIA’S ADOPTION OF EPA REVISIONS TO THE APPLICABILITY THRESHOLD FOR ETHANOL PRODUCTION FACILITIES IN THE PREVENTION OF SIGNIFICANT DETERIORATION (PSD) AND NONATTAINMENT NEW SOURCE REVIEW (NNSR) PERMIT PROGRAMS

INTRODUCTION

On May 1, 2007 (72 FR 24060), EPA promulgated a final rule excluding ethanol production facilities from the definition of "chemical processing plant" in the federal new source review (NSR) permitting program for major sources located in Prevention of Significant Deterioration (PSD) areas and for major sources located in areas not in attainment with the National Ambient Area Quality Standards (NAAQS). The effect of this revision was to raise the applicability threshold level for ethanol production facilities from 100 tons per year (tpy) of a NSR regulated pollutant to 250 tpy of a NSR regulated pollutant in EPA’s major NSR permit programs.

Virginia has an EPA-approved State Implementation Plan (SIP) for the major NSR permit programs set forth in the state’s air pollution control regulations. At the State Air Pollution Control Board (SAPCB) meeting on November 30, 2007, the Department of Environmental Quality (DEQ) presented to the board a proposal to revise Virginia’s air pollution control regulations to make them consistent with this federal rule change. In particular, the proposed changes would revise 9VAC5-80, Article 8, pertaining to "Permits for Major Stationary Sources and Major Modifications Locating in Prevention of Significant Deterioration Areas" and 9VAC5-80, Article 9, pertaining to "Permits for Major Stationary Sources and Major Modifications Locating in Nonattainment Areas or the Ozone Transport Region."

Historically, the board has revised Virginia’s air pollution regulations to make them consistent with EPA’s regulations following changes to the federal programs. The primary reason the board revises its regulations to make them consistent with changing federal requirements is that the federal Clean Air Act requires state NSR programs to be no less stringent than the federal programs. In most instances, revisions EPA makes to the federal NSR programs can be implicitly understood as strengthening air pollution protection, thus leaving states, including Virginia, no alternative but to revise their regulations accordingly. The Clean Air Act, however, gives states the discretion to promulgate permit programs that are more stringent than the federal programs. State NSR programs, therefore, do not have to be identical to federal NSR programs. Moreover, Virginia is under no legal obligation to adopt changes to its program that weaken air pollution protection, even if EPA has weakened the federal program.

At the SAPCB meeting on November 30, 2007, the board deferred action on DEQ’s proposal to revise Virginia’s major NSR regulations with respect to the applicability threshold for ethanol facilities to make them consistent with the federal NSR programs. Instead, it asked DEQ to prepare an analysis of the potential practical impact the revised regulation would have on Virginia’s air quality, and to submit that analysis to public review and comment. This analysis document was prepared in response to the board’s request.

BACKGROUND

There are approximately 158 ethanol plants currently operating in the US and about 51 new facilities are being constructed. The production capacity of these plants ranges from 3 to 130 million gallons per year of denatured ethanol. As of January 2009, there are no operating ethanol facilities in Virginia. However, in September 2008, DEQ issued a minor NSR permit to Osage Bio Energy, LLC, for the construction and operation of a 68.2 million gallon per year ethanol plant, the Appomattox Bio Energy Facility (Osage), in the City of Hopewell. Construction had not begun on that facility as of January 2009.

Ethanol can be made from a variety of products such as corn, grain sorghum, wheat, barley, sugar cane or beets, cheese whey, or potatoes. Most new plants are dry-mill facilities that can also produce distiller’s dried grain and solubles (DDGS) and wet cake for animal feed as a byproduct of ethanol production. Generally, emissions of air pollutants at ethanol facilities come from the following specific process:

Equipment/Process

Pollutants

Grain receiving, storing, and milling

PM, PM10, PM2.5

Fermentation and distillation/thermal oxidizer

VOC and HAPs

Ethanol/Denaturant storage and loadout

VOC and HAPs

Distillers grain with solubles (DGS) drying

PM, PM10, PM2.5, SO2, NOx, CO, VOC, and HAPs

Steam generation

PM, PM10, PM2.5, SO2, NOx, CO, VOC, and HAPs

DDGS storage and loadout

PM, PM10, PM2.5

Wet distillers grain with solubles (WDGS) storage

VOC and HAPs

Truck traffic fugitives from plant roads

PM, PM10, PM2.5

Equipment leaks

VOC and HAPs

Cooling tower

PM, PM10, PM2.5

Emergency power generation

PM, PM10, PM2.5, SO2, NOx, CO, VOC, and HAPs

IMPACT ANALYSIS OF THE PROPOSED RULE CHANGE

This regulation change would only impact new ethanol facilities in Virginia. In PSD areas of the state, i.e., those areas of the state that are in attainment with the NAAQS, the proposed rule would change the NSR applicability threshold for new ethanol facilities from 100 tpy to 250 tpy potential to emit (PTE) of a NSR regulated pollutant. NSR regulated pollutants include the criteria pollutants defined under the Clean Air Act, such as oxides of nitrogen (NOx), sulfur dioxide (SO2), particulate matter (PM10 and PM2.5), carbon monoxide (CO), volatile organic compounds (VOCs), lead, fluorides, sulfuric acid mist, hydrogen sulfide, and total reduced sulfur.1 Thus, ethanol facilities that have the potential to emit less than 100 tpy or greater than 250 tpy of a regulated NSR pollutant would not be affected by the proposed rule change. This analysis, therefore, is limited to the impacts of the rule change for new ethanol plants locating in PSD areas with PTE between 100 tpy and 250 tpy of a regulated NSR pollutant. These sources would be subject to Virginia’s minor NSR program found at 9VAC5-80, Article 6 "Permits for New and Modified Stationary Sources" instead of the major source PSD rule. This sized source would be classified as a "state major" (sources with PTE of greater than or equal to100 tpy and less than 250 tpy).

In nonattainment areas, the impact of the proposed rule would be even less. The thresholds in the current Northern Virginia nonattainment area for ozone would be 50 tpy for VOCs and 100 tpy for NOx. The only change the proposed federal rule would have on nonattainment thresholds is that fugitive emissions would no longer be counted toward permit applicability for ethanol facilities. If ethanol facilities are left in the "chemical processing plant" category, fugitive emissions would be included in any calculation to determine nonattainment new source review (NNSR) permit applicability. Although fugitive emissions would not be counted for major NNSR permit applicability, they would be included for any minor NSR or "state major" permit applicability determination.

The department conducted a survey of states where numerous ethanol plants currently are permitted. The states contacted were Nebraska, South Dakota, Minnesota, Illinois, and Kansas. All of these states, except Kansas, have changed their PSD applicability threshold for ethanol production facilities from 100 tpy to 250 tpy. States where the PSD applicability threshold has been changed reported that most of the new plants being permitted continue to propose equipment or operational limits that will restrict emissions to less than 100 tpy in order to avoid being subject to the following two requirements of the Clean Air Act: the "Miscellaneous Organic National Emission Standard for Hazardous Air Pollutants," known as the MON rule;2 and the requirement for a Federal Operating Permit under Title V of the Clean Air Act, known as a Title V permit.3

The impacts of the proposed rule changes in Virginia have been analyzed for the following:

•   Air pollution control requirements

•   Public participation and site suitability requirements

•   Air quality analysis

•   Permit processing timeline

Air Pollution Control Requirements:

Virginia requires a best available control technology (BACT) determination under both the major source PSD program and Virginia’s minor source NSR permit program. Currently, new ethanol plants with a PTE of 100 tpy or more of a NSR regulated pollutant are subject to best available control technology (BACT) requirements defined in 9VAC5-80-1615 C of the PSD rule, and those with PTE of less than 100 tpy of a criteria pollutant are subject to BACT requirements defined in 9VAC5-50-250 C (minor source BACT). If the proposed rule change is adopted, new ethanol plants with a PTE of between 100 tpy and 250 tpy of a NSR regulated pollutant would be subject to BACT under Virginia’s Article 6 (minor new source review).

The definitions of BACT for PSD and for Virginia’s minor source NSR program are basically identical and are presented in Appendix A. BACT determinations for new sources under both Virginia’s major and minor source programs are case-by-case determinations conducted under a top-down process4 that take into account technical feasibility, economic feasibility, environmental impacts, and energy impacts. DEQ anticipates that the process for conducting a top-down BACT analysis for ethanol facilities with a PTE between 100 tpy and 250 tpy would be the same under either the PSD or minor source permit programs. Therefore, there would be little difference between BACT determinations made for such facilities under either approach.5

To date the department has issued one NSR permit to an ethanol production facility. That permit was a minor source permit issued in September 2008 to the Osage facility in Hopewell, which had a PTE of less than 100 tpy. Despite the size of the Osage facility, DEQ conducted a top-down, case-by-case BACT evaluation for the project. Based on that top-down BACT analysis, DEQ determined that the following technologies represented BACT for the Osage facility:

Emission unit/Process

Pollutant

Control Measures

Fermentation and Distillation Process Units

VOC

98% control by Process Scrubber and Regenerative Thermal Oxidizer (RTO)

DDGS Drying Process

VOC

Eco Dryer Systems (Integrated Thermal Oxidizer)

Pre-fermentation units, stillage tanks, syrup tank, centrifuge units, and evaporator

Fugitive VOC

No control

Grain receiving, milling, DDGS handling and loadout

Particulate Matter

99% control by baghouse

RTO and 3 Eco Dryers

VOC, NOx, CO, Particulate Matter

Good combustion Practice

RTO and 3 Eco Dryers

SO2

Low sulfur Fuel (natural gas/ethanol mixture)

Haul Roads

Fugitive Dust

Apply asphalt, water, or equivalent; paving and sweeping haul roads; covered material stockpile to be kept adequately moist

Back up Generator

SO2

Low sulfur (0.5%) fuel

The technology control levels determined in the BACT analysis for the Osage facility and set forth in the above table are consistent with the BACT determinations that have been conducted for ethanol facilities in other states. These technology control levels likely would set the floor for any future BACT determinations made for ethanol facilities in Virginia.6

Public Participation and Site Suitability

Both major source PSD and NNSR permit applications and minor source NSR permit applications for proposed facilities with a PTE of greater than 100 tpy, sometimes referred to as "state major" sources, are subject to public participation requirements. A table comparing the public participation requirements is located in Appendix B. Although the public participation requirements for PSD and NNSR are slightly different than those for "state major" NSR sources, both programs allow for public comment on the BACT determination as well as on all other parts of the permit evaluation process.

In addition, both major source PSD and NNSR permit applications and minor source NSR permit applications are subject to a DEQ site suitability analysis required under Virginia Code § 10.1-1307 E. The statute does not distinguish between major or minor source permits and DEQ uses the same process when conducting site suitability analyses under either permit program.

Air Quality Analysis

Currently, new ethanol plants with a PTE of 100 tpy or more of a regulated NSR pollutant are subject to air quality analysis requirements for a PSD facility. If the proposed rule change is adopted, new ethanol plants with a PTE of 100 to less than 250 tpy of a regulated NSR pollutant would be subject to air quality analysis requirements for a "state major" source under DEQ’s minor source permit requirements. Since every modeling project is somewhat unique, this section provides a general comparison of the air quality modeling and additional impact analysis requirements for a PSD and non-PSD facility.

PSD Air Quality Analysis: All PSD permits require an air quality analysis of the ambient impacts associated with the project, including an evaluation of criteria pollutant emissions, an additional impact analysis, and an evaluation of any adverse impacts in Class I areas. Additionally, facilities are required to evaluate compliance with the applicable Virginia toxic pollutant emissions standards.

The PSD air dispersion modeling analysis must demonstrate that emissions from the new source or major modification, in conjunction with applicable emissions from other existing sources, will not cause or contribute to a violation of any applicable National Ambient Air Quality Standards (NAAQS) or PSD increment. The PSD modeling analysis involves two distinct phases: a preliminary analysis and a full impact analysis. The preliminary analysis evaluates the potential increase in emissions from the project or the net increase in emissions associated with the modification. The results of the preliminary analysis determine whether or not a full impact analysis is required. In addition to emissions from the project, the full impact analysis also considers any existing emission units at the facility, nearby facilities, and any growth resulting from the new project. For PM-10, SO2, and NO2, the full impact analysis consists of separate modeling analyses for the NAAQS and the PSD increments.

Current modeling guidance provided by the Federal Land Managers (FLMs) recommends that a major source proposed to be located within 300 kilometers (km) of a Class I area perform a modeling analysis to assess the ambient air quality impacts in terms of Class I PSD increments and Air Quality Related Values (AQRVs). Examples of common AQRVs include visibility and acid deposition. The FLMs are provided reviewing authority of Class I areas that may be affected by emissions from a proposed source by the PSD regulations and are specifically charged with protecting the AQRVs within the Class I areas.

An additional impact analysis must also be conducted for all PSD projects. This analysis assesses the impact of the emissions from the project and any associated growth on soils, vegetation, and visibility.

Lastly, facilities that are subject to the toxic pollutant requirements under 9VAC5 Chapter 60, Article 5 (Emission Standards for Toxic Pollutants from New and Modified Sources) are required to conduct modeling for each toxic pollutant that exceeds the exemption rates under this rule.

Non-PSD Air Quality Analysis: A non-PSD analysis is similar to PSD in that it would require the facility to demonstrate compliance with the applicable NAAQS and toxic pollutant emissions standards in 9VAC5 Chapter 60, Article 5. In contrast to the PSD analysis, the non-PSD facility would not be required to perform the PSD increment, AQRV, or additional impacts analyses.

Permit Processing Timeline

The processing of major source PSD and NNSR permit applications can take up to one year from receipt of a complete application. The processing time for minor NSR permits for sources with a PTE of greater than 100 tpy, i.e., "state major" source permits, is often significantly shorter. DEQ generally processes applications for "state major" permits within 180 days of receiving a complete application.

SUMMARY

If the proposed rule excluding ethanol production facilities from the definition of "chemical processing plant" in the federal new source review (NSR) permitting program is adopted, new ethanol plants locating in PSD attainment areas with a PTE of between 100 tpy and 250 tpy of a regulated NSR pollutant would be subject to DEQ’s minor NSR permit rule rather than the major source PSD rule. A permit application for a source of this size would be processed as a "state major" source and would receive a top-down, case-by-case BACT determination and be subject to public participation, site suitability, and air quality analysis requirements. In nonattainment areas the threshold for current Northern Virginia ozone nonattainment areas would be 50 tpy for VOCs and 100 tpy for the other regulated NSR pollutants. However, when determining permit applicability, fugitive emissions would not be counted. DEQ, therefore, believes that adoption of the rule would have no effect on air quality, and bring little change to the way public participation, site suitability, or air quality analysis requirements are addressed under the existing rules.

APPENDIX A

BACT Definition for PSD NSR as defined in
9VAC5-80-1615 C:

"Best available control technology" means an emissions limitation (including a visible emissions standard) based on the maximum degree of reduction for each regulated NSR pollutant that would be emitted from any proposed major stationary source or major modification that the board, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such source or modification through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such pollutant. In no event shall application of best available control technology result in emissions of any pollutant that would exceed the emissions allowed by any applicable standard under 40 CFR Parts 60, 61, and 63. If the board determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, a design, equipment, work practice, operational standard, or combination thereof, may be prescribed instead to satisfy the requirement for the application of best available control technology. Such standard shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design, equipment, work practice or operation, and shall provide for compliance by means that achieve equivalent results."

BACT Definition for Minor NSR as defined in
9VAC5-50-250 C:

"Best available control technology" means a standard of performance (including a visible emission standard) based on the maximum degree of emission reduction for any pollutant which would be emitted from any proposed stationary source which the board, on a case-by-case basis, taking into account energy, environmental and economic impacts and other costs, determines is achievable for such source through the application of production processes or available methods, systems and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such pollutant. In no event shall application of best available control technology result in emissions of any pollutant which would exceed the emissions allowed by any applicable standard in Article 5 (9VAC5-50-400 et seq.) of this part or Article 1 (9VAC5-60-60 et seq.) of Part II of 9VAC5 Chapter 60. If the board determines that technological or economic limitations on the application of measurement methodology to particular emissions unit would make the imposition of an emission standard infeasible, a design, equipment, work practice, operational standard, or combination of them, may be prescribed instead of requiring the application of best available control technology. Such standard shall, to the degree possible, set forth the emission reduction achievable by implementation of such design, equipment, work practice or operation, and shall provide for compliance by means which achieve equivalent results. In determining best available control technology for stationary sources subject to Article 6 (9VAC5-80-1100 et seq.) of Part II of 9 VAC 5 Chapter 80, consideration shall be given to the nature and amount of the new emissions, emission control efficiencies achieved in the industry for the source type, and the cost-effectiveness of the incremental emission reduction achieved."

(Language in bold is not contained in the PSD program’s definition of BACT.)

APPENDIX B

Comparison of Public Participation Requirements

PSD vs. "State Major"

PSD Permits

State Major Permits

Federal Land Managers (FLMs) notified within 30 days of receipt of advance notification of application, and included in pre-application meeting(s)

No pre-application requirements

Application sent to FLMs within 30 days of receipt

FLMs notified of projects within 100 km of a Class I area, within 1 week of receipt of application

Initial Letter of Determination (ILOD) of PSD applicability sent to applicant, FLMs, EPA, chief administrative officer representing the city and county where project is located and any other localities particularly affected, planning district commission, PSD mailing list.

Initial determination notification to applicant only

Public notice of project & applicant briefing published within 30 days of receipt of ILOD

Public notice of project published within 15 days of initial determination notification; no applicant briefing is required.

Draft permit to FLMs 60 days prior to public hearing

Draft permit to FLM upon request

Draft permit to EPA 30 days prior to public hearing

EPA is notified of hearing and may request draft permit for review

Notification of public comment period and hearing provided to: applicant, EPA, FLMs, affected states, local agencies, chief elected official, chief administrative officer, and General Assembly members representing the city and county where project is located and any other localities particularly affected, planning district commission where project is located, PSD mailing list

Notification of public comment period and hearing provided to: applicant, EPA, affected states, local agencies, chief elected official and chief administrative officer representing the city and county where project is located and any other localities particularly affected, planning district commission where project is located, FLMs if they have requested information about the project

30 day notice followed by public briefing, held prior to the public comment period

Typically no briefing is held prior to the comment period. A briefing statement may be given by staff immediately prior to the public hearing.

30 day notice followed by public hearing

Same as PSD

Comment period begins after public briefing and ends 15 days after hearing

Comment period begins at public notice and ends 15 days after hearing

Applicant may respond to public comments within 10 days after close of comment period

 

Final determination available for public inspection at same location as preconstruction information

 

Regulatory Text Changes:

9VAC5-80-60. Definitions.

C. Terms defined.

"Major source" means: …

b. For air pollutants other than hazardous air pollutants, any stationary source that directly emits or has the potential to emit 100 tons per year or more of any air pollutant (including any major source of fugitive emissions of any such pollutant). The fugitive emissions of a stationary source shall not be considered in determining whether it is a major stationary source, unless the source belongs to one of the following categories of stationary source: …

(20) Chemical process plants (which shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140).

9VAC5-80-1615. Definitions.

C. Terms defined.

"Major stationary source"

a. Means:

(1) Any of the following stationary sources of air pollutants that emits, or has the potential to emit, 100 tons per year or more of a any regulated NSR pollutant: …

(w) Chemical process plants (which does not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140).

c. The fugitive emissions of a stationary source shall not be included in determining for any of the purposes of this article whether it is a major stationary source, unless the source belongs to one of the following categories of stationary sources: …

(20) Chemical process plants (which shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140).

9VAC5-80-1695. Exemptions.

A. The requirements of this article shall not apply to a particular major stationary source or major modification; if:

1. The source or modification would be a major stationary source or major modification only if fugitive emissions, to the extent quantifiable, are considered in calculating the potential to emit of the stationary source or modification and the source does not belong to any of the following categories: …

v. Chemical process plants (which shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140).

9VAC5-80-2010. Definitions.

C. Terms defined.

"Major stationary source"

a. Means: …

c. The fugitive emissions of a stationary source shall not be included in determining for any of the purposes of this article whether it is a major stationary source, unless the source belongs to one of the following categories of stationary sources: …

(22) Chemical process plants (which shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140).

9VAC5-80-2140. Exception.

The provisions of this article do not apply to a source or modification that would be a major stationary source or major modification only if fugitive emissions, to the extent quantifiable, are considered in calculating the potential to emit of the source or modification and the source does not belong to any of the following categories: …

22. Chemical process plants (which shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140);

____________________________________________________________________________1 Hazardous air pollutants (HAPs) from new sources other than acid gases are not regulated under the PSD or NNSR programs. Instead, they are regulated under the Clean Air Act’s air toxics program which imposes Maximum Achievable Control Technology (MACT) standards on certain source categories or Virginia’s own air toxics program at 9 VAC 5-60-300, et seq., Article Five.

2 The applicability threshold for the MON rule is 10 tpy of a single HAP or 25 tpy of combinations of HAPs. Although there is no direct correlation between emissions of criteria pollutants that determine PSD and NNSR applicability, as a general proposition smaller ethanol facilities that emit less than 100 tpy of a criteria pollutant will also emit less HAPs.

3 The threshold for Title V permit applicability is the emission of 100 tpy of a criteria pollutant.

4 The top-down BACT process involves five basic steps: 1)identify available control options; 2) eliminate technically infeasible options; 3) rank remaining control options by control effectiveness; 4) evaluate economic, environmental, and energy impacts; and 5) select BACT. A more complete description of each step can be found in the Virginia draft PSD manual http://www.deq.virginia.gov/export/sites/default/air/permitting/documents/Draft_PSD_Manual.doc or in the EPA 1990 Draft New Source Review Manual http://www.epa.gov/region07/programs/artd/air/nsr/nsrmemos/
1990wman.pdf

5 For several smaller source categories that are required to obtain minor source permits Virginia employs a "presumptive BACT" approach, under which BACT is identical for all similar emissions unit. Source categories subject to presumptive BACT under Virginia’s minor source permit program include asphalt plants, natural gas and distillate oil boilers, concrete batch plants, coating operations, printing operations, stone quarries, and coal prep plants. The presumptive BACT approach reduces the permitting time and assures consistency between similar sources. Presumptive BACT for source categories are re-evaluated on a periodic basis to assure it is reflective of current technology. DEQ does not believes at this time that a presumptive BACT would be appropriate for ethanol facilities with a PTE ranging from 100 tpy to 250 tpy due to the variability in configuration, feedstocks, and size of such facilities. It would be DEQ’s intention to require new ethanol facilities with a PTE from 100 tpy to 250 tpy to undergo case-by-case top-down determinations under Virginia’s minor source permit program should the proposal be adopted.

6 Since BACT takes into consideration the cost to install the controls on a dollar per ton basis, what may be cost effective for a larger source may not be cost effective for a smaller source although the process may be the same for both sources.

Contact for public comments, document requests and additional information: Karen G. Sabasteanski, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone                 (804) 698-4426, FAX (804) 698-4510, or email kgsabasteanski@deq.virginia.gov.

DEPARTMENT OF CONSERVATION AND RECREATION

Total Maximum Daily Loads - Tributaries to the Staunton River

The Department of Conservation and Recreation (DCR) and the Department of Environmental Quality (DEQ) seek written and oral comments from interested persons on the development of an implementation plan (IP) for bacteria total maximum daily loads (TMDLs) on the following impaired stream segments - 14.21 miles of Cub Creek, 2.7 miles of Turnip Creek, 2.34 miles of Buffalo Creek, 2.88 miles of Buffalo Creek (UT), and 8.53 miles of Little Cub Creek, Big Cub Creek, and Cub Creek segment from Big Cub to the Roanoke River. The impaired stream segments are all tributaries to the Staunton River and are located in the Lower Roanoke River Basin in Appomattox and Charlotte Counties in Virginia.

TMDLs of these impaired segments were approved by EPA on June 22, 2006, a copy of which can be found on DEQ’s website at

www.deq.virginia.gov/tmdl/apptmdls/roankrvr/staunton.pdf.

Section 62.1-44.19:7 C of the Code of Virginia requires the development of an IP for approved TMDLs. The IP should provide measurable goals and the date of expected achievement of water quality objectives. The IP should also include the corrective actions needed and their associated costs, benefits and environmental impacts.

The second public meeting on the development of the IP for the above impaired segments will be held on Thursday, March 26, 2009, at 6:30 p.m. in the Charlotte County Board of Supervisor Room in the Charlotte County Administration Office Building located at 250 LeGrande Ave., Suite A, Charlotte Courthouse, Virginia 23923. The IP addresses corrective actions and incentives to reduce bacteria loadings from agriculture, pets, failing septic systems and straight pipes.

The public comment period will end on April 27, 2009.  A fact sheet on the development of an IP for the above impaired segments is available upon request.  Written comments and inquiries should include the name, address, and telephone number of the person submitting the comments and should be sent to Dr. Ram Gupta, Department of Conservation and Recreation, 101 North 14th St., 11th Floor, James Monroe Building, Richmond, VA 23219, email ram.gupta@dcr.virginia.gov, telephone (804) 371-0991.

STATE CORPORATION COMMISSION

AT RICHMOND, JANUARY 15, 2009

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. PUC-2008-00047

Ex Parte: Revisions of Rules for
Local Exchange Telecommunications
Company Service Quality Standards

ORDER GRANTING MOTION FOR EXTENSION

On June 17, 2008, the State Corporation Commission ("Commission") issued an Order Prescribing Notice, Scheduling Hearing, and Inviting Comments ("Order Prescribing Notice") that established this proceeding for the purpose of: (1) repealing the current Rules for Local Exchange Telecommunications Company Service Quality Standards, 20 VAC 5-427-10 et seq.; and (2) considering the adoption of new Rules Governing Local Exchange Telecommunications Carrier Retail Service Quality ("Proposed Rules"), 20 VAC 5-428-10 et seq. The Commission provided for publication of the Proposed Rules, permitted interested persons to submit written and electronic comments thereon, directed the Commission's Staff ("Staff") to file a response to such comments, and scheduled a public hearing for September 25, 2008.

After receiving comments and conducting that public hearing, the Commission, on December 15, 2008, issued its Second Order for Notice and Hearing ("Order") requesting comments on certain additional revisions to the Proposed Rules ("Revised Proposed Rules") and established a procedural schedule for the consideration of the Revised Proposed Rules. That procedural schedule was noticed to the public by means of a classified advertisement in newspapers of general circulation throughout the Commonwealth and by publication in the Virginia Register of Regulations.

On January 5, 2009, the Virginia Telecommunications Industry Association ("VTIA") filed its Amended Motion to Extend the Procedural Schedule ("Amended Motion"). The Amended Motion listed proposed dates that represented a seven‑week delay and alternative proposed dates that would constitute a three‑week delay. The Amended Motion stated that an extension of the procedural schedule would allow additional time for the VTIA, its members, and other interested parties to discuss and to attempt to reach agreement on specific proposed performance standards and would allow additional time for those industry lawyers and witnesses involved with the 2009 session of the General Assembly to develop a comprehensive response.  Responses to the Motion were filed January 7, 2009, by the Commission's Staff and by the Office of the Attorney General, Division of Consumer Counsel.  Neither response opposed a reasonable extension of the procedural schedule.

NOW THE COMMISSION, having considered the Amended Motion and the responses thereto, is of the opinion and finds that an extension is reasonable and should be granted.

Accordingly, IT IS HEREBY ORDERED THAT:

(1) The procedural schedule herein is extended.  Comments from interested parties may be submitted on or before March 13, 2009.  The Staff Report shall be submitted on or before March 27, 2009. The hearing shall be convened on April 2, 2009.

(2) The hearing previously scheduled for March 10, 2009, shall be convened that morning at 10:00 a.m. for the benefit of persons responding to the date published in newspapers and in the Virginia Register of Regulations. The hearing shall receive comments from those desiring to comment that date, but shall also be continued until April 2, 2009, for further comment as prescribed herein.

(3) The Staff shall furnish a copy of this Order to any interested party who submits comments on or before the original due date of February 5, 2009, and such interested party shall be allowed to submit additional comments on or before March 13, 2009.

AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to: C. Meade Browder, Jr., Senior Assistant Attorney General, Division of Consumer Counsel, Office of Attorney General, 900 East Main Street, 2nd Floor, Richmond, Virginia 23219; Noelle J. Coates, Esquire, Hunton & Williams LLP, Riverfront Plaza, East Tower, 951 East Byrd Street, Richmond, Virginia 23219-4074; all local exchange carriers certificated in Virginia as set out in Appendix B; and the Commission's Office of General Counsel and the Division of Communications.

DEPARTMENT OF ENVIRONMENTAL QUALITY

Air Quality Monitoring Data - Opportunity to Review and Comment

Notice of action: The Department of Environmental Quality (DEQ) is announcing an opportunity for public review and comment on a proposed demonstration showing that certain data gathered during June and July of 2008 were affected by exceptional events and therefore should not be used to make determinations regarding National Ambient Air Quality Standards. The exceptional events were the wildfire in the Pocosin Lakes National Wildlife Refuge in Hyde County, North Carolina and the wildfire in the Great Dismal Swamp Wildlife Refuge in Suffolk, Virginia. These exceptional events impacted fine particulate and ozone monitoring data across the Commonwealth of Virginia.

Purpose of notice: DEQ is seeking comments on the overall demonstration.

Public comment period: February 4, 2009, to March 5, 2009.

Description of proposal: The proposed demonstration provides meteorological, photographic, and other evidence of air pollution generated by the wildfires. The proposed demonstration also provides evidence of the air pollution impacts on ozone and fine particulate monitors at various times in June and July of 2008 as well as in various areas across the Commonwealth.

Federal information: This notice is being given to satisfy the public participation requirements of federal regulations (40 CFR 50.14).

How to comment: DEQ accepts written comments by email, facsimile transmission, and postal mail. In order to be considered, written comments must include the full name, address, and telephone number of the person commenting and be received by DEQ by 5 p.m. on the last day of the comment period (March 5, 2009). Due to problems with the quality of facsimile transmissions, commenters are encouraged to provide the signed original by postal mail within one week.

To review proposal: The proposal and any supporting documents are available on the DEQ Air Monitoring Division website: http://www.deq.virginia.gov/airmon/. The documents may also be obtained by contacting the DEQ representative named below. The public may review the documents between 8:30 a.m. and 4:30 p.m. of each business day until the close of the public comment period at the following locations: DEQ, Main Street Office, 8th Floor, 629 E. Main Street, Richmond, VA (804) 698-4070 and DEQ, Air Monitoring Division, 4949-C Cox Road, Glen Allen, VA (804) 527-5184.

Contact Information: Doris McLeod, Air Quality Planner, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4197, FAX (804) 698-4510, or email damcleod@deq.virginia.gov.

Proposed Consent Order - Aqua Virginia, Inc.

An enforcement action has been proposed for Aqua Virginia, Inc. - Lake Monticello STP for alleged violations. A proposed consent order describes a settlement to resolve late permit application, permit expiration and unauthorized discharges in Fluvanna County. A description of the proposed action is available at the DEQ office named below or online at www.deq.virginia.gov.  Steven W. Hetrick will accept comments by email at swhetrick@deq.virginia.gov, FAX (540) 574-7878 or postal mail at Department of Environmental Quality, Valley Regional Office, P.O. Box 3000, 4411 Early Road, Harrisonburg, VA 22801 from March 2, 2009, to April 1, 2009.

Proposed Consent Order - Arthur J. "Bo" Fisher, III

An enforcement action has been proposed for Arthur J. "Bo" Fisher, III, for violations of the Virginia Water Protection Permit Program at "Quarles Pond" in Augusta County. The proposed consent order describes the violations, requires corrective action, and contains a civil charge.  A description of the proposed action is available at the DEQ office named below or online at www.deq.virginia.gov.  Lee M. Crowell will accept comments by email at lmcrowell@deq.virginia.gov, FAX (804) 698-4277 or postal mail at Department of Environmental Quality, Division of Enforcement, P.O. Box 1105, Richmond VA 23218, from March 2, 2009, to April 2, 2009.

Proposed Consent Order - Town of Hamilton Sewage Treatment Plant

An enforcement action has been proposed for the Town of Hamilton for alleged violations in Loudoun County at the Town of Hamilton Sewage Treatment Plant. The amended consent order describes a settlement to resolve a violation of the 2006 Consent Order, as well as permit effluent violations, and unusual discharge events due to high flows occurring at the Town of Hamilton Sewage Treatment Plant. A description of the proposed action is available at the DEQ office named below or online at www.deq.virginia.gov. Stephanie Bellotti will accept comments by email at sabellotti@deq.virginia.gov, FAX (703) 583-3821, or postal mail, Department of Environmental Quality, Northern Regional Office, 13901 Crown Court, Woodbridge, VA 22193, from March 3, 2009, through April 2, 2009.

Proposed Revision of the State Implementation Plan (SIP)

Notice of action: The Department of Environmental Quality (DEQ) is announcing an opportunity for public comment on a proposed revision to the Commonwealth of Virginia State Implementation Plan (SIP). The SIP is a plan developed by the Commonwealth in order to fulfill its responsibilities under the federal Clean Air Act to attain and maintain the ambient air quality standards promulgated by the U.S. Environmental Protection Agency (EPA) under the Act. If adopted, the Commonwealth intends to submit the regulation or a portion thereof to the EPA as a revision to the SIP in accordance with the requirements of § 110(a) of the federal Clean Air Act.

Regulations affected: The regulation of the board affected by this action is: Regulation for Transportation Conformity (9VAC5 Chapter 151).

Purpose of notice: DEQ is seeking comment on the issue of whether the regulation amendments should be submitted as a revision to the SIP.

Public comment period: February 17, 2009, to March 19, 2009.

Public hearing: A public hearing may be conducted if a request is made in writing to the contact listed below. In order to be considered, the request must include the full name, address and telephone number of the person requesting the hearing and be received by DEQ by 5 p.m. on the last day of the comment period. Notice of the date, time, and location of any requested public hearing will be announced in a separate notice, and another 30-day comment period will be conducted.

Public comment stage: The regulation amendments are exempt from the state administrative procedures for adoption of regulations contained in Article 2 of the Administrative Process Act by the provisions of § 2.2-4006 A 4 c of the Administrative Process Act because they are necessary to meet the requirements of the federal Clean Air Act and do not differ materially from the pertinent EPA regulations. Since the amendments are exempt from administrative procedures for the adoption of regulations, DEQ is accepting comment only on the issue cited above under "purpose of notice" and not on the content of the regulation amendments.

Description of proposal: In essence, the proposed revision will consist of amendments to existing regulation provisions concerning transportation conformity. The major provisions of the proposal are summarized below:

EPA promulgated amendments to the federal transportation regulation on January 24, 2008 (73 FR 4420). In this action, EPA amended the transportation conformity rule to finalize provisions that were proposed on May 2, 2007. Most of the amendments are necessary to make the rule consistent with Clean Air Act § 176(c), as amended by SAFETEA-LU on August 10, 2005. The changes: (i) provide more time for state and local governments to meet conformity requirements, (ii) provide a one-year grace period before the consequences of not meeting certain conformity requirements apply, (iii) allow the option of shortening the timeframe of conformity determinations, and (iv) streamline other provisions. This final rule also includes minor amendments that are not related to SAFETEA-LU, such as allowing the Department of Transportation to make categorical hot-spot findings for appropriate projects in carbon monoxide nonattainment and maintenance areas.

How to comment: DEQ accepts written comments by email, fax, and postal mail. In order to be considered, comments must include the full name, address and telephone number of the person commenting and be received by DEQ by 5 p.m. on the last day of the comment period. Due to problems with the quality of facsimile transmissions, commenters are encouraged to provide the signed original by postal mail within one week. All testimony, exhibits and documents received are part of the public record.

To review regulation documents: The proposal and any supporting documents are available on the DEQ Air Public Notices for Plans website (http://www.deq.state.va.us/air/permitting/planotes.html). The documents may also be obtained by contacting the DEQ representative named below. The public may review the documents between 8:30 a.m. and 4:30 p.m. of each business day until the close of the public comment period at the following DEQ locations: Main Street Office, 8th Floor, 629 E Main St, Richmond, VA (804) 698-4070; Piedmont Regional Office, 4949-A Cox Rd, Glen Allen, VA (804) 527-5020; Northern Regional Office, 13901 Crown Court, Woodbridge, VA (703) 583-3800; and Tidewater Regional Office, 5636 Southern Blvd, Virginia Beach, VA (757) 518-2000.

Contact Information: Mary E. Major, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4423, FAX (804) 698-4510, or email memajor@deq.virginia.gov.

Total Maximum Daily Load - Hunting Creek, Cameron Run, Holmes Run

Announcement of a Total Maximum Daily Load (TMDL) study to restore water quality in the bacteria impaired waters of Hunting Creek, Cameron Run, and Holmes Run.

Purpose of notice: The Virginia Department of Environmental Quality (DEQ) and the Virginia Department of Conservation and Recreation (DCR) announce the first Technical Advisory Committee (TAC) meeting to introduce the Hunting Creek, Cameron Run, and Holmes Run Bacteria TMDL Studies.

Technical advisory committee meeting: Tuesday, March 10, 2009, 10 a.m. - Noon, City of Alexandria, Charles E. Beatley, Central Library, Main Community Room, 5005 Duke Street, Alexandria, VA 22304-2903.

Meeting description: This is the first meeting to introduce this project to the TAC.  The purpose of the TAC will be to provide technical input and insight for the project, and to assist with stakeholder and public participation.

Description of study: Portions of Hunting Creek, Cameron Run, and Holmes Run have been identified as impaired on the Clean Water Act § 303(d) list for not supporting the primary contact recreation use due to elevated levels of E. coli bacteria. Virginia agencies are working to identify the sources of bacteria contamination in these stream segments. The Hunting Creek, Cameron Run, and Holmes Run watersheds are located within Arlington County, the City of Alexandria, the City of Falls Church, and Fairfax County. Below are descriptions of the impaired segments that will be addressed in this study:

Stream Name

Impairments

Area

Upstream Limit

Downstream Limit

Hunting Creek (Tidal)

Recreational use Impairment due to E. coli bacteria

0.53 square miles

Route 241 (Telegraph Road) Bridge Crossing

Confluence with the Potomac River

Cameron Run (Nontidal)

Recreational use Impairment due to E. coli bacteria

2.08 miles

Confluence with Backlick Run

Route 241 (Telegraph Road) Bridge Crossing

Holmes Run (Nontidal)

Recreational use Impairment due to E. coli bacteria

3.58 miles

Mouth of Lake Barcroft

Confluence with Backlick Run

During this study, DEQ will develop a total maximum daily load, or a TMDL, for each of the impaired stream segments. A TMDL is the total amount of a pollutant a water body can receive and still meet water quality standards.  To restore water quality, pollutant levels have to be reduced to the TMDL allocated amount.

How to comment: The public comment period on the materials presented at the TAC meeting will extend from March 10, 2009, to April 9, 2009.  DEQ accepts written comments by email, fax, or postal mail. Written comments should include the name, address, and telephone number of the person commenting, and be received by DEQ during the comment period. Please send all comments to the contact listed below.

Contact for additional information: Katie Conaway, Virginia Department of Environmental Quality, 13901 Crown Court, Woodbridge, VA 22193, telephone (703) 583-3804, or email mkconaway@deq.virginia.gov.

STATE BOARD OF HEALTH AND DEPARTMENT OF MEDICAL ASSISTANCE SERVICES

Proposed Notice of Request for Certificate of Public Need Applications for Development of Additional Nursing Home Beds

Legal Notice of Request for Certificate of Public Need Applications. Pursuant to the authority vested in the State Board of Health (board) and the Department of Medical Assistance Services (DMAS) by § 32.1-102.3:2 of the Code of Virginia, notice is hereby given of the issuance of a proposed Request for Applications (RFA). This RFA is a request for certificate of public need (COPN) applications for projects that will result in an increase in the number of beds in which nursing home services are provided in the Commonwealth of Virginia. The RFA process is outlined in 12VAC5-220-335 of the Virginia Medical Care Facilities Certificate of Public Need Rules and Regulations (COPN regulations).

Eligible Planning District and Total Nursing Home Beds Available for Authorization. In the review cycle established by this RFA, the Commissioner of Health will consider requests for COPNs that propose an increase in nursing home beds in the following planning district (PD) and that propose an increase no greater than the number of available beds shown below for that planning district.  COPN requests that propose an increase in nursing home beds in any other planning district, not identified below, or propose an increase in beds greater than the number of available beds shown below will not be accepted for review.

Planning District 3, also known as Mount Rogers Planning District, consisting of the counties of Bland, Carroll, Grayson, Smyth, Washington, and Wythe and the cities of Bristol and Galax.

Total nursing home beds available for authorization: 120.

Basis for the Request for Applications. House Bill 1498 (Chapter 802, Virginia Acts of Assembly--2008 Session), approved April 2, 2008, authorized the State Health Commissioner to issue a request for applications for 120 new nursing home beds to be established in PD 3 under certain circumstances as described in the legislation, the principal paragraph of which is quoted below:

The Commissioner may accept applications for such 120 nursing home or nursing facility beds and may issue a certificate of public need for an increase of such 120 new beds in which nursing facility or extended care services are to be provided to establish a new facility in Planning District 3.  The Commissioner shall consider any certificate of public need for the 120 beds to an applicant that proposes to establish a new nursing facility located within three miles of the boundary of the county seat or within the county seat of the county adjacent to the city or county in which is sited any facility in Planning District 3 determined by the Division of Certificate of Public Need, in its "Nursing Home Facility Beds and Utilization Facility Fiscal Years Ending in 2006" analysis, to be licensed for 120 beds but that operated no Medicaid-certified beds in 2006.

Accordingly, Chapter 802 requires that to be accepted for review, an application must propose to establish a new nursing home facility of 120 beds.  Applications proposing to add nursing home beds to an existing nursing home facility will not be accepted for review. Applications proposing to establish a new nursing home facility of less than 120 beds will also not be accepted for review.  The legislation is also interpreted by the board and by DMAS to intend that these 120 new nursing home facility beds be certified for participation in the Virginia Medicaid program.

The existing nursing home facility referenced in Chapter 802 as "licensed for 120 beds but that operated no Medicaid-certified beds in 2006" is Bristol Nursing Home, Inc. Bristol Nursing Home has an address of 261 North Street, Bristol, Tennessee 37620, but 120 of its nursing home beds are in Bristol, Virginia, and are licensed by the Virginia Department of Health.  These Virginia-licensed nursing home beds were not Medicaid-certified in 2006 or in prior or subsequent years.

The 120 Virginia-licensed nursing home beds at Bristol Nursing Home are in the independent city of Bristol, Virginia.  The county adjacent to Bristol is Washington County, and its county seat is Abingdon. Therefore, Chapter 802 requires that the Commissioner "shall consider any certificate of public need for the 120 beds to an applicant that proposes to establish a new nursing home facility located within three miles of the boundary of (Abingdon) or within (Abingdon)."  The board and DMAS interpret this to mean that the commissioner may not consider any COPN application filed pursuant to this RFA that does not propose to establish a nursing home facility within the Town of Abingdon or within three miles of the boundary of the Town of Abingdon.

Basis for Review. The commissioner, in her review of COPN requests submitted pursuant to this RFA, will consider each of the twenty-one factors enumerated at § 32.1-102.3 B of the Code of Virginia, as applicable.  She will also consider applicable standards of the State Medical Facilities Plan (12VAC5-230-600 et. seq.).

Projection of Potential Fiscal Impact. The Department of Medical Assistance Services projects total additional expenditures for medical services provided to Medicaid recipients of approximately $ 3.6 million for the fiscal year ending June 30, 2012, if all the beds included in this RFA are authorized and available for occupancy by July 1, 2011.  This projection is based on the following key assumptions:

Estimated average proportion of beds filled during FY 2012

91.7%

Assumed Medicaid proportion of bed-days of service

62.7%

Average estimated Medicaid payment per day (direct, indirect, capital costs)

$143.90

Estimated patient-payment per day (patient pay not included above)

$30.32

Schedule for Review. COPN requests filed in response to this RFA shall be filed in accordance with the provisions of 12VAC5-220-355. The review schedule shown below will apply. Letters of intent and applications must be received by the Virginia Department of Health Division of COPN and by the Health Planning Agency of Southwest Virginia by the dates shown below in order to qualify for consideration in the specified review cycle.

Letter of intent must be received by (to be stated in final RFA).

Application must be received by (to be stated in final RFA).

Review cycle will begin on (to be stated in final RFA).

Application Fees. The Virginia Department of Health shall collect fees for COPN applications filed in response to this RFA.  No application may be deemed to be complete for review until the required application fee is paid.  The fee is one percent of the proposed capital expenditure for the project, but not less than $1,000 or more than $20,000.

STATE LOTTERY DEPARTMENT

Director's Orders

The following Director's Order of the State Lottery Department was filed with the Virginia Registrar of Regulations on February 5, 2009. The order may be viewed at the State Lottery Department, 900 East Main Street, Richmond, Virginia, or at the office of the Registrar of Regulations, 910 Capitol Street, 2nd Floor, Richmond, Virginia.

Final Rules for Game Operation:

Director's Order Number Nine (09)

Virginia's Instant Game Lottery 1054; "Take The Money And Run" (effective nunc pro tunc 1/9/09)

Water Quality Standards Regulation - Notice of Technical Advisory Committee Being Reconvened

At their October 16-17, 2008, meeting, the State Water Control Board approved changes to the Virginia Water Quality Standards regulation as part of the triennial review of the standards. Due to the scientific complexity behind the numeric criteria for several toxic pollutants, the board also directed staff to reconvene the triennial review ad hoc advisory committee to consider updates to aquatic life criteria for ammonia, copper, cadmium, cyanide and lead in 9VAC25-260-140, Criteria for Surface Waters, and consider the need for a prohibition of any new or expanded mixing zones for persistent bioaccumulative toxic substances in 9VAC25-260-20, General Criteria and Mixing Zones. The members of the committee have been invited to begin meeting with DEQ staff on a monthly basis from February through June to discuss the technical issues and determine what, if any, revisions to these criteria should be recommended to the board for public comment. DEQ expects to return to the board with a recommendation at their fall 2009 meeting.

The meetings of the reconvened triennial review ad hoc advisory committee will be held at the DEQ Piedmont Regional Office at 4949-A Cox Road, Glen Allen, VA 23060.

Directions to the Piedmont Regional Office can be found at the following website:

http://www.deq.virginia.gov/regions/piedmont.html.

Five meetings have initially been scheduled for 1 p.m. to 5 p.m. on the following dates:

Wednesday February 18, 2009

Thursday, March 26, 2009

Wednesday April 29, 2009

Wednesday May 26, 2009

Wednesday June 17, 2009

Actual duration of the meetings may vary depending on the complexity of the topics discussed and it is possible that it will not be necessary to hold these meetings on all the scheduled dates.

Contact Information: Alex Barron, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4119, or email ambarron@deq.virginia.gov.

VIRGINIA CODE COMMISSION

Notice to State Agencies

Mailing Address: Virginia Code Commission, 910 Capitol Street, General Assembly Building, 2nd Floor, Richmond, VA 23219.

Filing Material for Publication in the Virginia Register of Regulations

Agencies are required to use the Regulation Information System (RIS) when filing regulations for publication in the Virginia Register of Regulations. The Office of the Virginia Register of Regulations implemented a web-based application called RIS for filing regulations and related items for publication in the Virginia Register. The Registrar's office has worked closely with the Department of Planning and Budget (DPB) to coordinate the system with the Virginia Regulatory Town Hall. RIS and Town Hall complement and enhance one another by sharing pertinent regulatory information.

The Office of the Virginia Register is working toward the eventual elimination of the requirement that agencies file print copies of regulatory packages. Until that time, agencies may file petitions for rulemaking, notices of intended regulatory actions and general notices in electronic form only; however, until further notice, agencies must continue to file print copies of proposed, final, fast-track and emergency regulatory packages.

ERRATA

BOARD OF AGRICULTURE AND CONSUMER SERVICES

Title of Regulation: 2VAC5-320. Regulations for the Enforcement of the Endangered Plant and Insect Species Act.

Publication:  25:11 VA.R. 1892-1893 February 2, 2009.

Correction to Final Regulation:

Page 1892, in 2VAC5-320-10 A, lines 5 and 6, change the Code of Virginia chapter reference to read: "(§§ 3.1-1020 through 3.1-1030 3.2-1000 et seq. of the Code of Virginia)"

VA.R. Doc. No. R09-1702.

* * *

Title of Regulation: 2VAC5-325. Regulations Governing Pine Shoot Beetle.

Publication:  25:11 VA.R. 1893 February 2, 2009.

Correction to Final Regulation:

Page 1893, in 2VAC5-325-10, change the definition of "Virginia Pest Law" to read:

"Virginia Pest Law" means the statute set forth in Article 6 13.1-188.20 3.2-700 et seq.) of Chapter 13 7 of Title 3.1 3.2 of the Code of Virginia.

VA.R. Doc. No. R09-1703.

* * *

Title of Regulation: 2VAC5-330. Rules and Regulations for Enforcement of the Virginia Pest Law-Virginia Gypsy Moth Quarantine.

Publication:  25:11 VA.R. 1893-1894 February 2, 2009.

Correction to Final Regulation:

Page 1894, in 2VAC5-330-10, change the definition of "Virginia Pest Law" to read:

"Virginia Pest Law" means that law set forth in Article 6 13.1-188.20 3.2-700 et seq.) of Chapter 13 7 of Title 3.1 3.2 of the Code of Virginia.

VA.R. Doc. No. R09-1704.

* * *

Title of Regulation: 2VAC5-340. Rules and Regulations for the Enforcement of the Virginia Weights and Measures Law.

Publication:  25:11 VA.R. 1894-1896 February 2, 2009.

Correction to Final Regulation:

Page 1894, in 2VAC5-340-140 C, change subdivision designations "(a)" and "(b)" to "1." and "2."

Page 1896, in 2VAC5-340-170 D 4, change subdivision designations "(a)" and "(b)" to "a." and "b."

VA.R. Doc. No. R09-1705.

* * *

Title of Regulation: 2VAC5-350. Rules and Regulations for the Enforcement of the Virginia Commission Merchant Law.

Publication:  25:11 VA.R. 1896-1899 February 2, 2009.

Correction to Final Regulation:

Page 1897, change the Code of Virginia reference to read:

"Article 2 (§ 3.1-692 3.2-4709 et seq.) of Chapter 26 47 of Title 3.1 3.2 of the Code of Virginia."

VA.R. Doc. No. R09-1706.

* * *

Title of Regulation: 2VAC5-370. Rules and Regulations for Enforcement of the Virginia Animal Remedies Law.

Publication:  25:11 VA.R. 1901 February 2, 2009.

Correction to Final Regulation:

Page 1901, in 2VAC5-370-10, change "subdivision 3" to "subdivision A 3"

VA.R. Doc. No. R09-1708.

* * *

Title of Regulation: 2VAC5-380. Rules and Regulations for the Enforcement of the Virginia Dealers in Agricultural Products Law.

Publication:  25:11 VA.R. 1901 February 2, 2009.

Correction to Final Regulation:

Page 1901, in 2VAC5-380-10, change the definition of "Virginia Agricultural Products Dealers Licensing and Bonding Law" to read:

"Virginia Agricultural Products Dealers Licensing and Bonding Law" means Article 3 (§ 3.1-722.1 3.2-4738 et seq.) of Chapter 26 47 of Title 3.1 3.2 of the Code of Virginia.

VA.R. Doc. No. R09-1709.

* * *

Title of Regulation: 2VAC5-390. Rules and Regulations for the Enforcement of the Virginia Seed Law.

Publication:  25:11 VA.R. 1901-1906 February 2, 2009.

Correction to Final Regulation:

Page 1902, in 2VAC5-390-20, change the first paragraph to read:

Noxious weed seeds as defined in the Virginia Seed Law, Article 1 (§ 3.1-262 3.2-4000 et seq.) of Chapter 16 40 of Title 3.1 3.2 of the Code of Virginia, are divided into two classes:

Page 1904, in 2VAC5-390-80, lines 3 and 4, change the Code of Virginia chapter reference to read:

"Article 2, 3.2-4021 et seq.) of Chapter 16, 40 of Title 3.1 3.2 of the Code of Virginia"

VA.R. Doc. No. R09-1710.

* * *

Title of Regulation: 2VAC5-400. Rules and Regulations for the Enforcement of the Virginia Fertilizer Law.

Publication:  25:11 VA.R. 1906-1908 February 2, 2009.

Correction to Final Regulation:

Page 1907, in 2VAC5-400-10, change the definition of "Pesticide Law" to read:

"Pesticide Law" means Chapter 14.1 393.1-249.27 3.2-3900 et seq.) of Title 3.1 3.2 of the Code of Virginia, known as the Virginia Pesticide Control Act.

VA.R. Doc. No. R09-1711.

* * *

Title of Regulation: 2VAC5-440. Rules and Regulations for Enforcement of the Virginia Pest Law - Cotton Boll Weevil Quarantine.

Publication:  25:11 VA.R. 1908-1909 February 2, 2009.

Correction to Final Regulation:

Page 1909, in 2VAC5-440-20, lines 1 through 3, change the Code of Virginia chapter reference to read:

"Under the authority of §§ 3.1-188.20 through 3.1-188.31:2 Article 1 (§ 3.2-700 et seq.) of Chapter 7 of Title 3.2 of the Code of Virginia"

VA.R. Doc. No. R09-1712.




* Effective upon filing notice of U.S. EPA approval

*** See erratum (25:6 VA.R. 1375) for effective date