Titles of Regulations: 9VAC5-40. Existing Stationary Sources (amending 9VAC5-40-5810, 9VAC5-40-5820, 9VAC5-40-5850, 9VAC5-40-5880, 9VAC5-40-5920) (Rev. D-11).

9VAC5-50. New and Modified Stationary Sources (amending 9VAC5-50-420) (Rev. D-11).

9VAC5-130. Regulation for Open Burning (amending 9VAC5-130-20, 9VAC5-130-40, 9VAC5-130-100) (Rev. D-11).

Statutory Authority: § 10.1-1308 of the Code of Virginia; Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.

Effective Date: August 17, 2011.

Agency Contact: Debra Miller, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4206, FAX (804) 698-4346, or email debra.miller@deq.virginia.gov.

Summary:

Amendment 7 to the Solid Waste Management Regulations recodified those regulations and created 9VAC20-81, which became effective March 16, 2011. This action updates the citations to the Solid Waste Management Regulations in the State Air Pollution Control Board's regulations.

9VAC5-40-5810. Definitions.

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

B. As used in this article, all terms not defined here shall have the meanings given them in 9VAC5 Chapter 10 (9VAC5-10), unless otherwise required by context.

C. Terms defined.

"Active collection system" means a gas collection system that uses gas mover equipment.

"Active landfill" means a landfill in which solid waste is being placed or a landfill that is planned to accept waste in the future.

"CERCLA" means the federal Comprehensive Environmental Response, Compensation and Liability Act (42 USC § 9601 et seq.).

"Closed landfill" means a landfill in which solid waste is no longer being placed, and in which no additional solid wastes will be placed without first filing a notification of modification, as prescribed under 40 CFR 60.7(a)(4), with the board. Once a notification of modification has been filed, and additional solid waste is placed in the landfill, the landfill is no longer closed.

"Closure" means that point in time when a landfill becomes a closed landfill.

"Commenced" means that an owner has undertaken a continuous program of construction or modification or that an owner has entered into a contractual obligation to undertake and complete, within a reasonable time, a continuous program of construction or modification.

"Commercial waste" means all types of solid waste generated by stores, offices, restaurants, warehouses, and other nonmanufacturing activities, excluding construction, household, and industrial wastes.

"Construction" means fabrication, erection, or installation of an affected facility.

"Controlled landfill" means any landfill at which collection and control systems are required under this article as a result of the nonmethane organic compounds emission rate. The landfill is considered controlled at the time a collection and control system design plan is submitted in compliance with 9VAC5-40-5820 C 2 a.

"Design capacity" means the maximum amount of solid waste a landfill can accept, as indicated in terms of volume or mass in the most recent permit issued by the department under Part VII (9VAC20-80-480 et seq.) of 9VAC20 Chapter 80 (Solid Waste Management Regulations) Part V (9VAC20-81-400 et seq.) of the Solid Waste Management Regulations, plus any in-place waste not accounted for in the most recent permit, or as calculated using good engineering practices acceptable to the board. If the owner chooses to convert the design capacity from volume to mass or from mass to volume to demonstrate that its design capacity is less than (i) 1.0 million megagrams or 1.0 million cubic meters in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 2.5 million megagrams or 2.5 million cubic meters in the remaining areas of the Commonwealth, the calculation must include a site-specific density, which must be recalculated annually.

"Disposal facility" means all contiguous land and structures, other appurtenances, and improvements on the land used for the disposal of solid waste.

"Emission rate cutoff" means the threshold annual emission rate to which a landfill compares its estimated emission rate to determine if control under the regulation is required.

"Enclosed combustor" means an enclosed firebox which maintains a relatively constant limited peak temperature generally using a limited supply of combustion air. An enclosed flare is considered an enclosed combustor.

"Federal operating permit" means a permit issued under Article 1 (9VAC5-80-50 et seq.) of Part II of 9VAC5 Chapter 80.

"Flare" means an open combustor without enclosure or shroud.

"Gas mover equipment" means the equipment (i.e., fan, blower, compressor) used to transport landfill gas through the header system.

"Household waste" mean any solid waste, including garbage, trash and refuse, derived from households (including, but not limited to, single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds and day-use recreational areas). For the purposes of determining capacity as required by 9VAC5-40-5820 and NMOC emission rates as required by 9VAC5-40-5860, household waste includes sanitary waste (septage) in septic tanks.

"Industrial solid waste" means any solid waste generated by manufacturing or industrial processes that is not a hazardous waste regulated under Subtitle C (42 USC § 6921 et seq.) of RCRA (as reflected in 40 CFR Parts 264 and 265) and implemented by the department in 9VAC20 Chapter 60 (9VAC20-60, Virginia Hazardous Waste Management Regulations). Such waste may include, but is not limited to, waste resulting from the following manufacturing processes: electric power generation; fertilizer and agricultural chemicals; food and related products and byproducts; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals manufacturing and foundries; organic chemicals; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay, and concrete products; textile manufacturing; transportation equipment; and water treatment. This term does not include mining waste or oil and gas waste.

"Interior well" means any well or similar collection component located inside the perimeter of the landfill waste. A perimeter well located outside the landfilled waste is not an interior well.

"Landfill" means an area of land or an excavation in which wastes are placed for permanent disposal, and that is not a land application unit, surface impoundment, injection well, or waste pile as those terms are defined under 9VAC20-80-10 9VAC20-81.

"Landfill gas" means any gas derived from the decomposition of organic waste deposited in an MSW landfill or from the evolution of volatile organic species in the waste. Emissions from MSW landfills is equivalent to landfill gas emissions.

"Lateral expansion" means a horizontal expansion of the waste boundaries of an existing MSW landfill. A lateral expansion is not a modification unless it results in an increase in the design capacity of the landfill.

"Modification" means an increase in the permitted volume design capacity of the landfill by either horizontal or vertical expansion based on its permitted design capacity as of May 30, 1991. Modification does not occur until the owner commences construction on the horizontal or vertical expansion.

"Municipal solid waste landfill" or "MSW landfill" means an entire disposal facility in a contiguous geographical space where household waste is placed in or on land. An MSW landfill may also receive other types of solid wastes regulated under Subtitle D (42 USC § 6941 et seq.) of RCRA (as reflected in 40 CFR 257.2) and implemented by the department in 9VAC20-80-250 9VAC20-81 (Solid Waste Management Regulations) such as commercial solid waste, nonhazardous sludge, conditionally exempt small quantity generator waste, and nonhazardous industrial solid waste. Portions of an MSW landfill may be separated by access roads. An MSW landfill may be publicly or privately owned. An MSW landfill may be a new MSW landfill, an existing MSW landfill, or a lateral expansion.

"Municipal solid waste landfill emissions" or "MSW landfill emissions" means gas generated by the decomposition of organic waste deposited in an MSW landfill or derived from the evolution of organic compounds in the waste.

"NMOC" means nonmethane organic compounds, as measured according to the provisions of 9VAC5-40-5860 B through E.

"Nondegradable waste" means any waste that does not decompose through chemical breakdown or microbiological activity. Examples include, but are not limited to, concrete, municipal waste combustor ash, and metals.

"Passive collection system" means a gas collection system that solely uses positive pressure within the landfill to move the gas rather than using gas mover equipment.

"RCRA" means the federal Resource Conservation and Recovery Act (42 USC § 6901 et seq.).

"Refuse" means trash, rubbish, garbage, and other forms of solid or liquid waste, including, but not limited to, wastes resulting from residential, agricultural, commercial, industrial, institutional, trade, construction, land clearing, forest management, and emergency operations.

"Sludge" means any solid, semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility exclusive of the treated effluent from a wastewater treatment plant.

"Solid waste" means any garbage, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to permits under 33 USC § 1342, or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC § 2011 et seq.). For more detail, see Part III (9VAC20-80-130 et seq.) of 9VAC20 Chapter 80 (Solid Waste Management Regulations) 9VAC20-81-95 of the Solid Waste Management Regulations.

"Sufficient density" means any number, spacing, and combination of collection system components, including vertical wells, horizontal collectors, and surface collectors, necessary to maintain emission and migration control as determined by measures of performance set forth in this part.

"Sufficient extraction rate" means a rate sufficient to maintain a negative pressure at all wellheads in the collection system without causing air infiltration, including any wellheads connected to the system as a result of expansion or excess surface emissions, for the life of the blower.

9VAC5-40-5820. Standard for air emissions.

A. This section shall apply to affected facilities that have accepted waste any time since November 8, 1987, or have additional design capacity available for future waste deposition, and meet the design capacity and emission rate applicability criteria in subdivisions A 1 or A 2 of this section.

1. For affected facilities located in the Northern Virginia Volatile Organic Compound Emissions Control Area as designated in 9VAC5-20-206:

a. A design capacity greater than or equal to 1.0 million megagrams and 1.0 million cubic meters; and

b. A nonmethane organic compound emission rate of 23 megagrams per year or more as determined using test procedures under 9VAC5-40-5860.

2. For affected facilities located in the remaining areas of the Commonwealth:

a. A design capacity greater than or equal to 2.5 million megagrams or 2.5 million cubic meters; and

b. A nonmethane organic compound emission rate of 50 megagrams per year or more as determined using test procedures under 9VAC5-40-5860.

B. Each owner of an MSW landfill having a design capacity less than (i) 1.0 million megagrams or 1.0 million cubic meters in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 2.5 million megagrams or 2.5 million cubic meters in the remaining areas of the Commonwealth shall submit an initial design capacity report to the board as provided in 9VAC5-40-5880 C no later than June 30, 1999. The landfill may calculate design capacity in either megagrams or cubic meters for comparison with the design capacity applicability criteria in subsection A of this section. Any density conversions shall be documented and submitted with the report. Submittal of the initial design capacity report shall fulfill the requirements of this article except as provided for in subdivisions B 1 and B 2 of this section.

1. The owner shall submit to the board an amended design capacity report, as provided for in 9VAC5-40-5880 C 3. If the design capacity increase is the result of a modification, as defined in 9VAC5-40-5810 C, that was commenced on or after May 30, 1991, the landfill is subject to the new source performance standard in Article 5 of 9VAC5 Chapter 50 (9VAC5-50-410) instead of this article. If the design capacity increase is the result of a change in operating practices, density, or some other change that is not a modification, the landfill remains subject to this article.

2. When an increase in the maximum design capacity of a landfill exempted from the provisions of 9VAC5-40-5820 C, 9VAC5-40-5822, 9VAC5-40-5824, 9VAC5-40-5850, 9VAC5-40-5860, 9VAC5-40-5870, 9VAC5-40-5880, and 9VAC5-40-5890 on the basis of the design capacity applicability criteria in subsection A of this section results in a revised maximum design capacity equal to or greater than (i) 1.0 million megagrams or 1.0 million cubic meters in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 2.5 million megagrams or 2.5 million cubic meters in the remaining areas of the Commonwealth, the owner shall comply with the provisions of subsection C of this section.

C. Each owner of an MSW landfill having a design capacity greater than or equal to (i) 1.0 million megagrams and 1.0 million cubic meters in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 2.5 million megagrams and 2.5 million cubic meters in the remaining areas of the Commonwealth shall either install a collection and control system as provided in subdivision C 2 of this section or calculate an initial NMOC emission rate for the landfill using the procedures specified in 9VAC5-40-5860. The NMOC emission rate shall be recalculated annually, except as provided in 9VAC5-40-5880 D 1 b.

1. If the calculated NMOC emission rate is less than (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, the owner shall:

a. Submit an annual emission report to the board, except as provided for in 9VAC5-40-5880 D 1 b; and

b. Recalculate the NMOC emission rate annually using the procedures specified in 9VAC5-40-5860 B 1 until such time as the calculated NMOC emission rate is greater than or equal to (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, or the landfill is closed.

(1) If the NMOC emission rate, upon initial calculation or annual recalculation required in subdivision C 1 b of this section, is greater than or equal to (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, the owner shall install a collection and control system in compliance with subdivision C 2 of this section.

(2) If the landfill is permanently closed, a closure notification shall be submitted to the board as provided for in 9VAC5-40-5880 F.

2. If the calculated NMOC emission rate is greater than or equal to (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, the owner shall:

a. Submit a collection and control system design plan prepared by a professional engineer to the board within one year:

(1) The collection and control system as described in the plan shall meet the design requirements of subdivision C 2 b of this section.

(2) The collection and control system design plan shall include any alternatives to the operational standards, test methods, procedures, compliance measures, monitoring, recordkeeping or reporting provisions of 9VAC5-40-5822, 9VAC5-40-5850, 9VAC5-40-5860, 9VAC5-40-5870, 9VAC5-40-5880, and 9VAC5-40-5890 proposed by the owner.

(3) The collection and control system design plan shall either conform with specifications for active collection systems in 9VAC5-40-5824 or include a demonstration to the board's satisfaction of the sufficiency of the alternative provisions to 9VAC5-40-5824.

(4) The board will review the information submitted under subdivisions C 2 a (1), (2) and (3) of this section and either approve it, disapprove it, or request that additional information be submitted. Because of the many site-specific factors involved with landfill gas system design, alternative systems may be necessary. A wide variety of system designs are possible, such as vertical wells, combination horizontal and vertical collection systems, or horizontal trenches only, leachate collection components, and passive systems. All design plan changes shall be submitted to the board and may be implemented only upon approval of the board.

b. Install a collection and control system that captures the gas generated within the landfill as required by subdivision C 2 b (1) or (2) of this section within 30 months after the first annual report in which the emission rate equals or exceeds (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, unless Tier 2 or Tier 3 sampling demonstrates that the emission rate is less than (a) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (b) 50 megagrams per year in the remaining areas of the Commonwealth, as specified in 9VAC5-40-5880 E 1 or E 2.

(1) An active collection system shall:

(a) Be designed to handle the maximum expected gas flow rate from the entire area of the landfill that warrants control over the intended use period of the gas control or treatment system equipment;

(b) Collect gas from each area, cell, or group of cells in the landfill in which the initial solid waste has been placed for a period of:

(i) Five years or more if active; or

(ii) Two years or more if closed or at final grade;

(c) Collect gas at a sufficient extraction rate;

(d) Be designed to minimize off-site migration of subsurface gas.

(2) A passive collection system shall:

(a) Comply with the provisions specified in subdivisions C 2 b (1) (a), (b), and (d) of this section.

(b) Be installed with liners on the bottom and all sides in all areas in which gas is to be collected. The liners shall be installed as required under 9VAC20-80-250 B 9VAC20-81-130.

c. Route all the collected gas to a control system that complies with the requirements in either subdivision C 2 c (1), (2) or (3) of this section.

(1) An open flare designed and operated in accordance with 40 CFR 60.18.

(2) A control system designed and operated to reduce NMOC by 98 weight-percent, or, when an enclosed combustion device is used for control, to either reduce NMOC by 98 weight-percent or reduce the outlet NMOC concentration to less than 20 parts per million by volume, dry basis as hexane at 3.0% oxygen. The reduction efficiency or parts per million by volume shall be established by an initial compliance test to be completed no later than 180 days after the initial startup of the approved control system using the test methods specified in 9VAC5-40-5860 E.

(a) If a boiler or process heater is used as the control device, the landfill gas stream shall be introduced into the flame zone.

(b) The control device shall be operated within the parameter ranges established during the initial or most recent compliance test. The operating parameters to be monitored are specified in 9VAC5-40-5870.

(3) Route the collected gas to a treatment system that processes the collected gas for subsequent sale or use. All emissions from any atmospheric vent from the gas treatment system shall be subject to the requirements of subdivision C 2 c (1) or (2) of this section.

d. Operate the collection and control device installed to comply with this article in accordance with the provisions of 9VAC5-40-5822, 9VAC5-40-5850, and 9VAC5-40-5870.

e. The collection and control system may be capped or removed provided that all the conditions of subdivisions C 2 e (1), (2), and (3) of this section are met:

(1) The landfill shall be a closed landfill as defined in 9VAC5-40-5810 and under the requirements of 9VAC20-80-250 E 9VAC20-81-160. A closure report shall be submitted to the board as provided in 9VAC5-40-5880 F;

(2) The collection and control system shall have been in operation a minimum of 15 years; and

(3) Following the procedures specified in 9VAC5-40-5860 C, the calculated NMOC gas produced by the landfill shall be less than (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth on three successive test dates. The test dates shall be no less than 90 days apart and no more than 180 days apart.

D. When an MSW landfill subject to this article is closed, the owner is no longer subject to the requirement to maintain a federal operating permit for the landfill if the landfill is not otherwise subject to federal operating permit requirements if either of the following conditions are met:

1. The landfill was never subject to the requirement for a control system under 9VAC5-40-5820 C 2; or

2. The owner meets the conditions for control system removal specified in 9VAC5-40-5820 C 2 e.

9VAC5-40-5850. Compliance.

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. Owners subject to 9VAC5-40-5820 shall comply with the provisions of Part V (9VAC20-80-240 et seq.) Part III (9VAC20-81-100 et seq.) of 9VAC20 Chapter 80 81 (Solid Waste Management Regulations) pertaining to the control of landfill gases.

C. Except as provided in 9VAC5-40-5820 C 2 a (2), the specified methods in subdivisions C 1 through C 6 of this section shall be used to determine whether the gas collection system is in compliance with 9VAC5-40-5820 C 2 b.

1. For the purposes of calculating the maximum expected gas generation flow rate from the landfill to determine compliance with 9VAC5-40-5820 C 2 b (1) (a), one of the following equations shall be used. The k and L sub0 kinetic factors should be those published in the "Compilation of Air Pollutant Emission Factors (AP-42)" (see 9VAC5-20-21) or other site-specific values demonstrated to be appropriate and approved by the board. If k has been determined as specified in 9VAC5-40-5860 B 4, the value of k determined from the test shall be used. A value of no more than 15 years shall be used for the intended use period of the gas mover equipment. The active life of the landfill is the age of the landfill plus the estimated number of years until closure.

a. For sites with unknown year-to-year solid waste acceptance rate:

Q_M = 2L₀R(e^-kc - e^-kt)

where

Q_M = maximum expected gas generation flow rate, cubic meters per year

L₀ = methane generation potential, cubic meters per megagram solid waste

R = average annual acceptance rate, megagrams per year

k = methane generation rate constant, year^-1

t = age of the landfill at equipment installation plus the time the owner or operator intends to use the gas mover equipment or active life of the landfill, whichever is less. If the equipment is installed after closure, t is the age of the landfill at installation, years

c = time since closure, years (for an active landfill c = 0 and e^-kc = 1)

b. For sites with known year-to-year solid waste acceptance rate:

where

Q_M = maximum expected gas generation flow rate, cubic meters per year

k = methane generation rate constant, year^-1

L₀ = methane generation potential, cubic meters per megagram solid waste

M_i = mass of solid waste in the i^th section, megagrams

t_i = age of the i^th section, years

c. If a collection and control system has been installed, actual flow data may be used to project the maximum expected gas generation flow rate instead of, or in conjunction with, the equations in subdivisions C 1 a and b of this section. If the landfill is still accepting waste, the actual measured flow data will not equal the maximum expected gas generation rate, so calculations using the equations in subdivisions C 1 a or b of this section or other methods acceptable to the board shall be used to predict the maximum expected gas generation rate over the intended period of use of the gas control system equipment.

2. For the purposes of determining sufficient density of gas collectors for compliance with 9VAC5-40-5820 C 2 b (1) (b), the owner shall design a system of vertical wells, horizontal collectors, or other collection devices, acceptable to the board, capable of controlling and extracting gas from all portions of the landfill sufficient to meet all operational and performance standards.

3. For the purpose of demonstrating whether the gas collection system flow rate is sufficient to determine compliance with 9VAC5-40-5820 C 2 b (1) (c), the owner shall measure gauge pressure in the gas collection header at each individual well, monthly. If a positive pressure exists, action shall be initiated to correct the exceedance within five calendar days, except for the three conditions allowed under 9VAC5-40-5822 A 2. If negative pressure cannot be achieved without excess air infiltration within 15 calendar days of the first measurement, the gas collection system shall be expanded to correct the exceedance within 120 days of the initial measurement of positive pressure. Any attempted corrective measure shall not cause exceedances of other operational or performance standards. An alternative timeline for correcting the exceedance may be submitted to the board for approval.

4. Owners are not required to expand the system as required in subdivision C 3 of this section during the first 180 days after gas collection system startup.

5. For the purpose of identifying whether excess air infiltration into the landfill is occurring, the owner shall monitor each well monthly for temperature and nitrogen or oxygen as provided in 9VAC5-40-5822 A 3. If a well exceeds one of these operating parameters, action shall be initiated to correct the exceedance within five calendar days. If correction of the exceedance cannot be achieved within 15 calendar days of the first measurement, the gas collection system shall be expanded to correct the exceedance within 120 days of the initial exceedance. Any attempted corrective measure shall not cause exceedances of other operational or performance standards. An alternative timeline for correcting the exceedance may be submitted to the board for approval.

6. An owner seeking to demonstrate compliance with 9VAC5-40-5820 C 2 b (1) (d) through the use of a collection system not conforming to the specifications provided in 9VAC5-40-5824 shall provide information acceptable to the board as specified in 9VAC5-40-5820 C 2 a (3) demonstrating that off-site migration is being controlled.

D. For purposes of compliance with 9VAC5-40-5822 A 1, each owner of a controlled landfill shall place each well or design component as specified in the approved design plan as provided in 9VAC5-40-5820 C 2 a. Each well shall be installed no later than 60 days after the date on which the initial solid waste has been in place for a period of:

1. Five years or more if active; or

2. Two years or more if closed or at final grade.

E. The following procedures shall be used for compliance with the surface methane operational standard as provided in 9VAC5-40-5822 A 4.

1. After installation of the collection system, the owner shall monitor surface concentrations of methane along the entire perimeter of the collection area and along a pattern that traverses the landfill at 30-meter intervals (or a site-specific established spacing) for each collection area on a quarterly basis using an organic vapor analyzer, flame ionization detector, or other portable monitor meeting the specifications provided in subsection F of this section.

2. The background concentration shall be determined by moving the probe inlet upwind and downwind outside the boundary of the landfill at a distance of at least 30 meters from the perimeter wells.

3. Surface emission monitoring shall be performed in accordance with § 4.3.1 of Reference Method 21 of Appendix A of 40 CFR Part 60, except that the probe inlet shall be placed within 5 to 10 centimeters of the ground. Monitoring shall be performed during typical meteorological conditions.

4. Any reading of 500 parts per million or more above background at any location shall be recorded as a monitored exceedance and the actions specified in subdivisions E 4 a through e of this section shall be taken. As long as the specified actions are taken, the exceedance is not a violation of the operational requirements of 9VAC5-40-5822 A 4.

a. The location of each monitored exceedance shall be marked and the location recorded.

b. Cover maintenance or adjustments to the vacuum of the adjacent wells to increase the gas collection in the vicinity of each exceedance shall be made and the location shall be remonitored within 10 calendar days of detecting the exceedance.

c. If the remonitoring of the location shows a second exceedance, additional corrective action shall be taken and the location shall be monitored again within 10 days of the second exceedance. If the remonitoring shows a third exceedance for the same location, the action specified in subdivision E 4 e of this section shall be taken, and no further monitoring of that location is required until the action specified in subdivision E 4 e of this section has been taken.

d. Any location that initially showed an exceedance but has a methane concentration less than 500 parts per million methane above background at the 10-day remonitoring specified in subdivision E 4 b or c of this section shall be remonitored one month from the initial exceedance. If the one-month remonitoring shows a concentration less than 500 parts per million above background, no further monitoring of that location is required until the next quarterly monitoring period. If the 1-month remonitoring shows an exceedance, the actions specified in subdivision E 4 c or e of this section shall be taken.

e. For any location where monitored methane concentration equals or exceeds 500 parts per million above background three times within a quarterly period, a new well or other collection device shall be installed within 120 calendar days of the initial exceedance. An alternative remedy to the exceedance, such as upgrading the blower, header pipes or control device, and a corresponding timeline for installation may be submitted to the board for approval.

5. The owner shall implement a program to monitor for cover integrity and implement cover repairs as necessary on a monthly basis.

F. Each owner seeking to comply with the provisions in subsection E of this section shall comply with the following instrumentation specifications and procedures for surface emission monitoring devices:

1. The portable analyzer shall meet the instrument specifications provided in § 3 of Reference Method 21 of Appendix A of 40 CFR Part 60, except that "methane" shall replace all references to VOC.

2. The calibration gas shall be methane, diluted to a nominal concentration of 500 parts per million in air.

3. To meet the performance evaluation requirements in § 3.1.3 of Reference Method 21 of Appendix A of 40 CFR Part 60, the instrument evaluation procedures of § 4.4 of Reference Method 21 of Appendix A of 40 CFR Part 60 shall be used.

4. The calibration procedures provided in § 4.2 of Reference Method 21 of Appendix A of 40 CFR Part 60 shall be followed immediately before commencing a surface monitoring survey.

G. The provisions of this article apply at all times, except during periods of startup, shutdown, or malfunction, provided that the duration of startup, shutdown, or malfunction shall not exceed five days for collection systems and shall not exceed one hour for treatment or control devices. This subsection shall not apply to the emission standards set forth in 9VAC5-40-5830 and 9VAC5-40-5840.

H. With regard to startup, shutdown, and malfunction, the provisions of 9VAC5-40-5850 A and 9VAC5-40-5910 shall apply to the emission standards set forth in 9VAC5-40-5830 and 9VAC5-40-5840.

9VAC5-40-5880. Reporting.

A. The provisions of 9VAC5-40-5840 (Notification, records and reporting) apply.

B. Except as provided in 9VAC5-40-5820 C 2 a (2), the provisions of subsections C through I of this section apply.

C. Each owner subject to the requirements of this article shall submit an initial design capacity report to the board.

1. The initial design capacity report shall be submitted no later than June 30, 1999.

2. The initial design capacity report shall contain the following information:

a. A map or plot of the landfill, providing the size and location of the landfill, and identifying all areas where solid waste may be landfilled according to the permit issued by the department under Part VII (9VAC20-80-480 et seq.) Part V (9VAC20-81-400 et seq.) of 9VAC20 Chapter 80 81 (Solid Waste Management Regulations);

b. The maximum design capacity of the landfill. Where the maximum design capacity is specified in a permit issued by the department under Part VII (9VAC20-80-480 et seq.) Part V (9VAC20-81-400 et seq.) of 9VAC20 Chapter 80 81 (Solid Waste Management Regulations), a copy of the permit specifying the maximum design capacity may be submitted as part of the report. If the maximum design capacity of the landfill is not specified in the permit, the maximum design capacity shall be calculated using good engineering practices acceptable to the board. The calculations shall be provided, along with the relevant parameters as part of the report. The board may request other reasonable information as may be necessary to verify the maximum design capacity of the landfill.

3. An amended design capacity report shall be submitted to the board providing notification of an increase in the design capacity of the landfill within 90 days of an increase in the maximum design capacity of the landfill to or above (i) 1.0 million megagrams and 1.0 million cubic meters in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 2.5 million megagrams and 2.5 million cubic meters in the remaining areas of the Commonwealth. This increase in design capacity may result from an increase in the permitted volume of the landfill or an increase in the density as documented in the annual recalculation required in 9VAC5-40-5890 H.

D. Each owner subject to the requirements of this article shall submit an NMOC emission rate report to the board initially and annually thereafter, except as provided for in subdivisions D 1 b or D 3 of this section. The board may request such additional information as may be necessary to verify the reported NMOC emission rate.

1. The NMOC emission rate report shall contain an annual or five-year estimate of the NMOC emission rate calculated using the formula and procedures provided in 9VAC5-40-5860 B or C, as applicable.

a. The initial NMOC emission rate report shall be submitted by June 30, 1999, and may be combined with the initial design capacity report required in subsection C of this section. Subsequent NMOC emission rate reports shall be submitted annually thereafter, except as provided for in subdivisions D 1 b and D 3 of this section.

b. If the estimated NMOC emission rate as reported in the annual report to the board is less than (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth in each of the next five consecutive years, the owner may elect to submit an estimate of the NMOC emission rate for the next five-year period in lieu of the annual report. This estimate shall include the current amount of solid waste-in-place and the estimated waste acceptance rate for each year of the five years for which an NMOC emission rate is estimated. All data and calculations upon which this estimate is based shall be provided to the board. This estimate shall be revised at least once every five years. If the actual waste acceptance rate exceeds the estimated waste acceptance rate in any year reported in the five-year estimate, a revised five-year estimate shall be submitted to the board. The revised estimate shall cover the five-year period beginning with the year in which the actual waste acceptance rate exceeded the estimated waste acceptance rate.

2. The NMOC emission rate report shall include all the data, calculations, sample reports and measurements used to estimate the annual or five-year emissions.

3. Each owner subject to the requirements of this article is exempted from the requirements of subdivisions D 1 and 2 of this section, after the installation of a collection and control system in compliance with 9VAC5-40-5820 C 2, during such time as the collection and control system is in operation and in compliance with 9VAC5-40-5822 and 9VAC5-40-5850.

E. Each owner subject to the provisions of 9VAC5-40-5820 C 2 a shall submit a collection and control system design plan to the board within one year of the first report, required under subdivision D of this section, in which the emission rate is greater than or equal to (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, except as follows:

1. If the owner elects to recalculate the NMOC emission rate after Tier 2 NMOC sampling and analysis as provided in 9VAC5-40-5860 B 3 and the resulting rate is less than (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, annual periodic reporting shall be resumed, using the Tier 2 determined site-specific NMOC concentration, until the calculated emission rate is greater than or equal to (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, or the landfill is closed. The revised NMOC emission rate report, with the recalculated emission rate based on NMOC sampling and analysis, shall be submitted within 180 days of the first calculated exceedance of the emission rate applicability criteria.

2. If the owner elects to recalculate the NMOC emission rate after determining a site-specific methane generation rate constant (k), as provided in Tier 3 in 9VAC5-40-5860 B 4, and the resulting NMOC emission rate is less than (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, annual periodic reporting shall be resumed. The resulting site-specific methane generation rate constant (k) shall be used in the emission rate calculation until such time as the emissions rate calculation results in an exceedance. The revised NMOC emission rate report based on the provisions of 9VAC5-40-5860 B 4 and the resulting site-specific methane generation rate constant (k) shall be submitted to the board within one year of the first calculated emission rate exceeding (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth.

F. Each owner of a controlled landfill shall submit a closure report to the board within 30 days of waste acceptance cessation. The board may request additional information as may be necessary to verify that permanent closure has taken place in accordance with the requirements of 9VAC20-80-250 E 9VAC20-81-160. If a closure report has been submitted to the board, no additional wastes may be placed into the landfill without obtaining a permit issued by the department under Part VII (9VAC20-80-480 et seq.) Part V (9VAC20-81-400 et seq.) of 9VAC20 Chapter 80 81 (Solid Waste Management Regulations).

G. Each owner of a controlled landfill shall submit an equipment removal report to the board 30 days prior to removal or cessation of operation of the control equipment.

1. The equipment removal report shall contain all of the following items:

a. A copy of the closure report submitted in accordance with subsection F of this section;

b. A copy of the initial compliance test report demonstrating that the 15-year minimum control period has expired; and

c. Dated copies of three successive NMOC emission rate reports demonstrating that the landfill is no longer producing (i) 23 megagrams or greater of NMOC per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams or greater of NMOC per year in the remaining areas of the Commonwealth.

2. The board may request such additional information as may be necessary to verify that all of the conditions for removal in 9VAC5-40-5820 C 2 e have been met.

H. Each owner of a landfill seeking to comply with 9VAC5-40-5820 C 2 using an active collection system designed in accordance with 9VAC5-40-5820 C 2 b shall submit to the board annual reports of the recorded information in subdivisions H 1 through H 6 of this section. The initial annual report shall be submitted within 180 days of installation and startup of the collection and control system, and shall include the initial compliance test report. For enclosed combustion devices and flares, reportable exceedances are defined under 9VAC5-40-5890 E.

1. Value and length of time for exceedance of applicable parameters monitored under 9VAC5-40-5870 C, D, E, and F.

2. Description and duration of all periods when the gas stream is diverted from the control device through a bypass line or the indication of bypass flow as specified under 9VAC5-40-5870.

3. Description and duration of all periods when the control device was not operating for a period exceeding one hour and length of time the control device was not operating.

4. All periods when the collection system was not operating in excess of five days.

5. The location of each exceedance of the 500 parts per million methane concentration as provided in 9VAC5-40-5822 A 4 and the concentration recorded at each location for which an exceedance was recorded in the previous month.

6. The date of installation and the location of each well or collection system expansion added pursuant to subdivisions C 3, D, and E 4 of 9VAC5-40-5850.

I. Each owner seeking to comply with 9VAC5-40-5820 C 2 a shall include the following information with the initial compliance test report:

1. A diagram of the collection system showing collection system positioning including all wells, horizontal collectors, surface collectors, or other gas extraction devices, including the locations of any areas excluded from collection and the proposed sites for the future collection system expansion;

2. The data upon which the sufficient density of wells, horizontal collectors, surface collectors, or other gas extraction devices and the gas mover equipment sizing are based;

3. The documentation of the presence of asbestos or nondegradable material for each area from which collection wells have been excluded based on the presence of asbestos or nondegradable material;

4. The sum of the gas generation flow rates for all areas from which collection wells have been excluded based on nonproductivity and the calculations of gas generation flow rate for each excluded area; and

5. The provisions for increasing gas mover equipment capacity with increased gas generation flow rate, if the present gas mover equipment is inadequate to move the maximum flow rate expected over the life of the landfill; and

6. The provisions for the control of off-site migration.

9VAC5-40-5920. Permits.

A. A permit may be required prior to beginning any of the activities specified below if the provisions of 9VAC5 Chapter 50 (9VAC5-50) and 9VAC5 Chapter 60 (9VAC5-60) apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

6. Operation of a facility.

B. MSW landfills required to install a collection and control system according to the provisions of 9VAC5-40-5820 shall apply for a permit amendment in accordance with Part VII (9VAC20-80-480 et seq.) Part V (9VAC20-81-400 et seq.) of 9VAC20 Chapter 80 81 (Solid Waste Management Regulations).

C. Physical or operational changes made to an MSW landfill solely to comply with this article are not considered construction, reconstruction, or modification for the purposes of 40 CFR 60 Subpart WWW.

D. The owner of an MSW landfill subject to this article with a design capacity greater than or equal to 2.5 million megagrams and 2.5 million cubic meters is subject to Article 1 (9VAC5-80-50 et seq.) of Part II of 9VAC5 Chapter 80. When a landfill is closed, and either never needed control or meets the conditions for control system removal specified in 9VAC5-40-5820 C 2 e, an operating permit under Article 1 (9VAC5-80-50 et seq.) of Part II of 9VAC5 Chapter 80 is no longer required.

E. A landfill with a design capacity less than 2.5 million megagrams or 2.5 million cubic meters does not require an operating permit under Article 1 (9VAC5-80-50 et seq.) of Part II of 9VAC5 Chapter 80.

9VAC5-50-420. Word or phrase substitutions.

In the standards designated in 9VAC5-50-410 make the following substitutions:

1. In all the standards, "board" for "administrator."

2. In all the standards, "board" for "U.S. Environmental Protection Agency" (except in references).

3. In subpart WWW, Department of Environmental Quality for state, local, or tribal agency responsible for regulating the landfill. Waste management permits are issued by the department under the authority of the Virginia Waste Management Act (Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia), using the procedures in Part VII (9VAC20-80-480 et seq.) Part V (9VAC20-81-400 et seq.) of 9VAC20 Chapter 80 81.

9VAC5-130-20. Definitions.

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

B. As used in this chapter, all terms not defined here shall have the meaning given them in 9VAC5-10 (General Definitions), unless otherwise required by context.

C. Terms defined:

"Air curtain incinerator" means an incinerator that operates by forcefully projecting a curtain of air across an open chamber or pit in which combustion occurs. Incinerators of this type can be constructed above or below ground and with or without refractory walls and floor. Air curtain incinerators are not to be confused with conventional combustion devices with enclosed fireboxes and controlled air technology such as mass burn, modular, and fluidized bed combustors.

"Automobile graveyard" means any lot or place that is exposed to the weather and upon which more than five motor vehicles of any kind, incapable of being operated, and that it would not be economically practical to make operative, are placed, located or found.

"Built-up area" means any area with a substantial portion covered by industrial, commercial or residential buildings.

"Clean burning waste" means waste that is not prohibited to be burned under this chapter and that consists only of (i) 100% wood waste, (ii) 100% clean lumber or clean wood, (iii) 100% yard waste, or (iv) 100% mixture of only any combination of wood waste, clean lumber, clean wood or yard waste.

"Clean lumber" means wood or wood products that have been cut or shaped and include wet, air-dried, and kiln-dried wood products. Clean lumber does not include wood products that have been painted, pigment-stained, or pressure-treated by compounds such as chromate copper arsenate, pentachlorophenol, and creosote.

"Clean wood" means uncontaminated natural or untreated wood. Clean wood includes, but is not limited to, byproducts of harvesting activities conducted for forest management or commercial logging, or mill residues consisting of bark, chips, edgings, sawdust, shavings or slabs. It does not include wood that has been treated, adulterated, or chemically changed in some way; treated with glues, binders or resins; or painted, stained or coated.

"Commercial waste" means all solid waste generated by establishments engaged in business operations other than manufacturing or construction. This category includes, but is not limited to, waste resulting from the operation of stores, markets, office buildings, restaurants and shopping centers.

"Construction waste" means solid waste that is produced or generated during construction, remodeling, or repair of pavements, houses, commercial buildings and other structures. Construction waste consists of lumber, wire, sheetrock, broken brick, shingles, glass, pipes, concrete, and metal and plastics if the metal or plastics are a part of the materials of construction or empty containers for such materials. Paints, coatings, solvents, asbestos, any liquid, compressed gases or semi-liquids, and garbage are not construction wastes and the disposal of such materials shall be in accordance with the regulations of the Virginia Waste Management Board.

"Debris waste" means wastes resulting from land clearing operations. Debris wastes include but are not limited to stumps, wood, brush, leaves, soil and road spoils.

"Demolition waste" means that solid waste that is produced by the destruction of structures, or their foundations, or both, and includes the same materials as construction waste.

"Garbage" means readily putrescible discarded materials composed of animal, vegetable or other organic matter.

"Hazardous waste" means a "hazardous waste" as described in 9VAC20-60 (Hazardous Waste Management Regulations).

"Household waste" means any waste material, including garbage, trash and refuse derived from households. For purposes of this regulation, households include single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds and day-use recreation areas. Household wastes do not include sanitary waste in septic tanks (septage) that is regulated by other state agencies.

"Industrial waste" means any solid waste generated by manufacturing or industrial process that is not a regulated hazardous waste. Such waste may include but is not limited to waste resulting from the following manufacturing processes: electric power generation; fertilizer/agricultural chemicals; food and related products/byproducts; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals manufacturing/foundries; organic chemicals; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay and concrete products; textile manufacturing; transportation equipment; and water treatment. This term does not include mining waste or oil and gas waste.

"Junk" means old or scrap copper, brass, rope, rags, batteries, paper, trash, rubber, debris, waste, or junked, dismantled, or wrecked automobiles, or parts thereof, iron, steel, and other old or scrap ferrous or nonferrous material.

"Junkyard" means an establishment or place of business that is maintained, operated, or used for storing, keeping, buying, or selling junk, or for the maintenance or operation of an automobile graveyard, and the term shall include garbage dumps and sanitary landfills.

"Landfill" means a sanitary landfill, an industrial waste landfill, or a construction/demolition/debris landfill. See Part I (9VAC20-80-10 et seq.) (9VAC20-81-10 et seq.) of 9VAC20-80 9VAC20-81 (Solid Waste Management Regulations) for further definitions of these terms.

"Local landfill" means any landfill located within the jurisdiction of a local government.

"Open burning" means the combustion of solid waste without:

1. Control of combustion air to maintain adequate temperature for efficient combustion;

2. Containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and

3. Control of the combustion products' emission.

"Open pit incinerator" means a device used to burn waste for the primary purpose of reducing the volume by removing combustible matter. Such devices function by directing a curtain of air at an angle across the top of a trench or similarly enclosed space, thus reducing the amount of combustion byproducts emitted into the atmosphere. The term also includes trench burners, air curtain incinerators and over draft incinerators.

"Refuse" means all solid waste products having the characteristics of solids rather than liquids and that are composed wholly or partially of materials such as garbage, trash, rubbish, litter, residues from clean up of spills or contamination or other discarded materials.

"Salvage operation" means any operation consisting of a business, trade or industry participating in salvaging or reclaiming any product or material, such as, but not limited to, reprocessing of used motor oils, metals, chemicals, shipping containers or drums, and specifically including automobile graveyards and junkyards.

"Sanitary landfill" means an engineered land burial facility for the disposal of household waste that is so located, designed, constructed, and operated to contain and isolate the waste so that it does not pose a substantial present or potential hazard to human health or the environment. A sanitary landfill also may receive other types of solid wastes, such as commercial solid waste, nonhazardous sludge, hazardous waste from conditionally exempt small quantity generators, construction, demolition, or debris waste and nonhazardous industrial solid waste. See Part I (9VAC20-80-10 et seq.) (9VAC20-81-10 et seq.) of 9VAC20-80 9VAC20-81 (Solid Waste Management Regulations) for further definitions of these terms.

"Smoke" means small gas-borne particulate matter consisting mostly, but not exclusively, of carbon, ash and other material in concentrations sufficient to form a visible plume.

"Special incineration device" means an open pit incinerator, conical or teepee burner, or any other device specifically designed to provide good combustion performance.

"Wood waste" means untreated wood and untreated wood products, including tree stumps (whole or chipped), trees, tree limbs (whole or chipped), bark, sawdust, chips, scraps, slabs, millings, and shavings. Wood waste does not include:

1. Grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands.

2. Construction, renovation, or demolition wastes.

3. Clean lumber.

"Yard waste" means grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs that come from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands. Yard waste does not include (i) construction, renovation, and demolition wastes or (ii) clean wood.

9VAC5-130-40. Permissible open burning.

A. Open burning or the use of special incineration devices is permitted in the following instances provided the provisions of subsections B through E of 9VAC5-130-30 are met:

1. Upon the request of an owner or a responsible civil or military public official, the board may approve open burning or the use of special incineration devices under controlled conditions for the elimination of a hazard that constitutes a threat to the public health, safety or welfare and that cannot be remedied by other means consonant with the circumstances presented by the hazard. Such uses of open burning or the use of special incineration devices may include, but are not limited to, the following:

a. Destruction of deteriorated or unused explosives and munitions on government or private property when other means of disposal are not available. Hazardous waste permits may be required under the provisions of 9VAC20-60 (Hazardous Waste Management Regulations).

b. Destruction of debris caused by floods, tornadoes, hurricanes or other natural disasters where alternate means of disposal are not economical or practical and when it is in the best interest of the citizens of the Commonwealth. Solid waste management permits may be required under the provisions of 9VAC20-80 9VAC20-81 (Solid Waste Management Regulations).

c. On-site destruction of animal or plant life that is infested, or reasonably believed to be infested, by a pest or disease in order to (i) suppress, control, or eradicate an infestation or pest; (ii) prevent or retard the spread of an infestation or pest; or (iii) prevent further disease transmission or progression.

2. Open burning is permitted for training and instruction of government and public firefighters under the supervision of the designated official and industrial in-house firefighting personnel with clearance from the local firefighting authority. The designated official in charge of the training shall notify and obtain the approval of the regional director prior to conducting the training exercise. Training schools where permanent facilities are installed for firefighting instruction are exempt from this notification requirement. Buildings that have not been demolished may be burned under the provisions of this subdivision only.

3. Open burning or the use of special incineration devices is permitted for the destruction of classified military documents under the supervision of the designated official.

4. Open burning is permitted for camp fires or other fires that are used solely for recreational purposes, for ceremonial occasions, for outdoor noncommercial preparation of food, and for warming of outdoor workers provided the materials specified in subsections B and C of 9VAC5-130-30 are not burned.

5. In urban areas, open burning is permitted for the on-site destruction of leaves and tree, yard and garden trimmings located on the premises of private property, provided that no regularly scheduled public or private collection service for such trimmings is available at the adjacent street or public road. In nonurban areas, open burning is permitted for the on-site destruction of leaves and tree, yard and garden trimmings located on the premises of private property regardless of the availability of collection service for such trimmings.

6. Open burning is permitted for the on-site destruction of household waste by homeowners or tenants, provided that no regularly scheduled public or private collection service for such refuse is available at the adjacent street or public road.

7. Open burning is permitted for the destruction of any combustible liquid or gaseous material by burning in a flare or flare stack. Use of a flare or flare stack for the destruction of hazardous waste or commercial/industrial waste is allowed provided written approval is obtained from the board and the facility is in compliance with Article 3 (9VAC5-40-160 et seq.) of 9VAC5-40 (Existing Stationary Sources) and Article 3 (9VAC5-50-160 et seq.) of 9VAC5-50 (New and Modified Stationary Sources). Permits issued under 9VAC5-80 (Permits for Stationary Sources) may be used to satisfy the requirement for written approval. This activity must be consistent with the provisions of 9VAC20-60 (Virginia Hazardous Waste Regulations).

8. Open burning or the use of special incineration devices is permitted on site for the destruction of clean burning waste and debris waste resulting from property maintenance, from the development or modification of roads and highways, parking areas, railroad tracks, pipelines, power and communication lines, buildings or building areas, sanitary landfills, or from any other clearing operations. Open burning or the use of special incineration devices for the purpose of such destruction is prohibited in volatile organic compounds emissions control areas (see 9VAC5-20-206) during May, June, July, August, and September.

9. Open burning is permitted for forest management and agriculture practices approved by the board (see 9VAC5-130-50), provided the following conditions are met:

a. The burning shall be at least 1,000 feet from any occupied building unless the occupants have given prior permission, other than a building located on the property on which the burning is conducted; and

b. The burning shall be attended at all times.

10. Open burning or the use of special incineration devices is permitted for the destruction of clean burning waste and debris waste on the site of local landfills provided that the burning does not take place on land that has been filled and covered so as to present an underground fire hazard due to the presence of methane gas. Open burning or the use of special incineration devices for the purpose of such destruction is prohibited in volatile organic compounds emissions control areas (see 9VAC5-20-206) during May, June, July, August, and September.

B. Open burning or the use of special incineration devices permitted under the provisions of this chapter does not exempt or excuse any owner or other person from the consequences, liability, damages or injuries that may result from such conduct; nor does it excuse or exempt any owner or other person from complying with other applicable laws, ordinances, regulations and orders of the governmental entities having jurisdiction, even though the open burning is conducted in compliance with this chapter. In this regard special attention should be directed to § 10.1-1142 of the Code of Virginia, which is enforced by the Department of Forestry.

C. With regard to the provisions of subsection B of this section, special attention should also be directed to the regulations of the Virginia Waste Management Board. No destruction of waste by open burning or transportation of waste to be destroyed by open burning shall take place in violation of the regulations of the Virginia Waste Management Board.

Part II
Local Ordinances

9VAC5-130-100. Local ordinances on open burning.

A. General.

1. If the governing body of any locality wishes to adopt an ordinance relating to air pollution and governing open burning within its jurisdiction, the ordinance must first be approved by the board (see § 10.1-1321 B of the Code of Virginia).

2. In order to assist local governments in the development of ordinances acceptable to the board, the ordinance in subsection C of this section is offered as a model.

3. If a local government wishes to adopt the language of the model ordinance without changing any wording except that enclosed by parentheses, that government's ordinance shall be deemed to be approved by the board on the date of local adoption provided that a copy of the ordinance is filed with the department upon its adoption by the local government.

4. If a local government wishes to change any wording of the model ordinance aside from that enclosed by parentheses in order to construct a local ordinance, that government shall request the approval of the board prior to adoption of the ordinance by the local jurisdiction. A copy of the ordinance shall be filed with the department upon its adoption by the local government.

5. Local ordinances that have been approved by the board prior to April 1, 1996, remain in full force and effect as specified by their promulgating authorities.

B. Establishment and approval of local ordinances varying from the model.

1. Any local governing body proposing to adopt or amend an ordinance relating to open burning that differs from the model local ordinance in subsection C of this section shall first obtain the approval of the board for the ordinance or amendment as specified in subdivision A 4 of this section. The board in approving local ordinances will consider, but will not be limited to, the following criteria:

a. The local ordinance shall provide for intergovernmental cooperation and exchange of information.

b. Adequate local resources will be committed to enforcing the proposed local ordinance.

c. The provisions of the local ordinance shall be as strict as state regulations, except as provided for leaf burning in § 10.1-1308 of the Virginia Air Pollution Control Law.

d. If a waiver from any provision of this chapter has been requested under 9VAC5-130-60, the language of the ordinance shall achieve the objective of the provision from which the waiver is requested.

2. Approval of any local ordinance may be withdrawn if the board determines that the local ordinance is less strict than state regulations or if the locality fails to enforce the ordinance.

3. If a local ordinance must be amended to conform to an amendment to state regulations, such local amendment will be made within six months of the effective date of the amended state regulations.

4. Local ordinances are a supplement to state regulations. Any provisions of local ordinances that have been approved by the board and are more strict than state regulations shall take precedence over state regulations within the respective locality. If a locality fails to enforce its own ordinance, the board reserves the right to enforce state regulations.

5. A local governing body may grant a variance to any provision of its air pollution control ordinance(s) provided that:

a. A public hearing is held prior to granting the variance;

b. The public is notified of the application for a variance by notice in at least one major newspaper of general circulation in the affected locality at least 30 days prior to the date of the hearing; and

c. The variance does not permit any owner or other person to take action that would result in a violation of any provision of state regulations unless a variance is granted by the board. The public hearings required for the variances to the local ordinance and state regulations may be conducted jointly as one proceeding.

6. 9VAC5-170-150 shall not apply to local ordinances concerned solely with open burning.

C. Model ordinance.

ORDINANCE NO. (000)

Section (000-1). Title.

This chapter shall be known as the (local jurisdiction) Ordinance for the Regulation of Open Burning.

Section (000-2). Purpose.

The purpose of this chapter is to protect public health, safety, and welfare by regulating open burning within (local jurisdiction) to achieve and maintain, to the greatest extent practicable, a level of air quality that will provide comfort and convenience while promoting economic and social development. This chapter is intended to supplement the applicable regulations promulgated by the State Air Pollution Control Board and other applicable regulations and laws.

Section (000-3). Definitions.

For the purpose of this chapter and subsequent amendments or any orders issued by (local jurisdiction), the words or phrases shall have the meaning given them in this section.

"Automobile graveyard" means any lot or place that is exposed to the weather and upon which more than five motor vehicles of any kind, incapable of being operated, and that it would not be economically practical to make operative, are placed, located or found.

"Built-up area" means any area with a substantial portion covered by industrial, commercial or residential buildings.

"Clean burning waste" means waste that is not prohibited to be burned under this ordinance and that consists only of (i) 100% wood waste, (ii) 100% clean lumber or clean wood, (iii) 100% yard waste, or (iv) 100% mixture of only any combination of wood waste, clean lumber, clean wood or yard waste.

"Clean lumber" means wood or wood products that have been cut or shaped and include wet, air-dried, and kiln-dried wood products. Clean lumber does not include wood products that have been painted, pigment-stained, or pressure-treated by compounds such as chromate copper arsenate, pentachlorophenol, and creosote.

"Clean wood" means uncontaminated natural or untreated wood. Clean wood includes, but is not limited to, byproducts of harvesting activities conducted for forest management or commercial logging, or mill residues consisting of bark, chips, edgings, sawdust, shavings or slabs. It does not include wood that has been treated, adulterated, or chemically changed in some way; treated with glues, binders or resins; or painted, stained or coated.

"Construction waste" means solid waste that is produced or generated during construction remodeling, or repair of pavements, houses, commercial buildings and other structures. Construction waste consists of lumber, wire, sheetrock, broken brick, shingles, glass, pipes, concrete, and metal and plastics if the metal or plastics are a part of the materials of construction or empty containers for such materials. Paints, coatings, solvents, asbestos, any liquid, compressed gases or semi-liquids, and garbage are not construction wastes and the disposal of such materials must be in accordance with the regulations of the Virginia Waste Management Board.

"Debris waste" means wastes resulting from land clearing operations. Debris wastes include but are not limited to stumps, wood, brush, leaves, soil and road spoils.

"Demolition waste" means that solid waste that is produced by the destruction of structures, or their foundations, or both, and includes the same materials as construction waste.

"Garbage" means readily putrescible discarded materials composed of animal, vegetable or other organic matter.

"Hazardous waste" means a "hazardous waste" as described in 9VAC20-60 (Hazardous Waste Management Regulations).

"Household waste" means any waste material, including garbage, trash and refuse derived from households. For purposes of this regulation, households include single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds and day-use recreation areas. Household wastes do not include sanitary waste in septic tanks (septage) that is regulated by state agencies.

"Industrial waste" means any solid waste generated by manufacturing or industrial process that is not a regulated hazardous waste. Such waste may include but is not limited to waste resulting from the following manufacturing processes: electric power generation; fertilizer/agricultural chemicals; food and related products/byproducts; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals manufacturing/foundries; organic chemicals; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay and concrete products; textile manufacturing; transportation equipment; and water treatment. This term does not include mining waste or oil and gas waste.

"Junkyard" means an establishment or place of business that is maintained, operated, or used for storing, keeping, buying, or selling junk, or for the maintenance or operation of an automobile graveyard, and the term shall include garbage dumps and sanitary landfills.

"Landfill" means a sanitary landfill, an industrial waste landfill, or a construction/demolition/debris landfill. See 9VAC20-80 9VAC20-81 (Solid Waste Management Regulations) for further definitions of these terms.

"Local landfill" means any landfill located within the jurisdiction of a local government.

"Open burning" means the combustion of solid waste without:

1. Control of combustion air to maintain adequate temperature for efficient combustion;

2. Containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and

3. Control of the combustion products' emission.

"Open pit incinerator" means a device used to burn waste for the primary purpose of reducing the volume by removing combustible matter. Such devices function by directing a curtain of air at an angle across the top of a trench or similarly enclosed space, thus reducing the amount of combustion byproducts emitted into the atmosphere. The term also includes trench burners, air curtain incinerators and over draft incinerators.

"Refuse" means all solid waste products having the characteristics of solids rather than liquids and that are composed wholly or partially of materials such as garbage, trash, rubbish, litter, residues from clean up of spills or contamination or other discarded materials.

"Salvage operation" means any operation consisting of a business, trade or industry participating in salvaging or reclaiming any product or material, such as, but not limited to, reprocessing of used motor oils, metals, chemicals, shipping containers or drums, and specifically including automobile graveyards and junkyards.

"Sanitary landfill" means an engineered land burial facility for the disposal of household waste that is so located, designed, constructed, and operated to contain and isolate the waste so that it does not pose a substantial present or potential hazard to human health or the environment. A sanitary landfill also may receive other types of solid wastes, such as commercial solid waste, nonhazardous sludge, hazardous waste from conditionally exempt small quantity generators, construction, demolition, or debris waste and nonhazardous industrial solid waste. See 9VAC20-80 9VAC20-81 (Solid Waste Management Regulations) for further definitions of these terms.

"Smoke" means small gas-borne particulate matter consisting mostly, but not exclusively, of carbon, ash and other material in concentrations sufficient to form a visible plume.

"Special incineration device" means an open pit incinerator, conical or teepee burner, or any other device specifically designed to provide good combustion performance.

"Wood waste" means untreated wood and untreated wood products, including tree stumps (whole or chipped), trees, tree limbs (whole or chipped), bark, sawdust, chips, scraps, slabs, millings, and shavings. Wood waste does not include:

1. Grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands.

2. Construction, renovation, or demolition wastes.

3. Clean lumber.

"Yard waste" means grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs that come from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands. Yard waste does not include (i) construction, renovation, and demolition wastes or (ii) clean wood.

Section (000-4). Prohibitions on open burning.

A. No owner or other person shall cause or permit open burning or the use of a special incineration device for the destruction of refuse except as provided in this ordinance.

B. No owner or other person shall cause or permit open burning or the use of a special incineration device for the destruction of rubber tires, asphaltic materials, crankcase oil, impregnated wood or other rubber or petroleum based materials except when conducting bona fide firefighting instruction at firefighting training schools having permanent facilities.

C. No owner or other person shall cause or permit open burning or the use of a special incineration device for the destruction of hazardous waste or containers for such materials.

D. No owner or other person shall cause or permit open burning or the use of a special incineration device for the purpose of a salvage operation or for the destruction of commercial/industrial waste.

E. Open burning or the use of special incineration devices permitted under the provisions of this ordinance does not exempt or excuse any owner or other person from the consequences, liability, damages or injuries that may result from such conduct; nor does it excuse or exempt any owner or other person from complying with other applicable laws, ordinances, regulations and orders of the governmental entities having jurisdiction, even though the open burning is conducted in compliance with this ordinance. In this regard special attention should be directed to § 10.1-1142 of the Forest Fire Law of Virginia, the regulations of the Virginia Waste Management Board, and the State Air Pollution Control Board's Regulations for the Control and Abatement of Air Pollution.

F. Upon declaration of an alert, warning or emergency stage of an air pollution episode as described in 9VAC5-70 (Air Pollution Episode Prevention) or when deemed advisable by the State Air Pollution Control Board to prevent a hazard to, or an unreasonable burden upon, public health or welfare, no owner or other person shall cause or permit open burning or use of a special incineration device; and any in process burning or use of special incineration devices shall be immediately terminated in the designated air quality control region.

Section (000-5). Exemptions.

The following activities are exempted to the extent covered by the State Air Pollution Control Board's Regulations for the Control and Abatement of Air Pollution:

A. Open burning for training and instruction of government and public firefighters under the supervision of the designated official and industrial in-house firefighting personnel;

B. Open burning for camp fires or other fires that are used solely for recreational purposes, for ceremonial occasions, for outdoor noncommercial preparation of food, and for warming of outdoor workers;

C. Open burning for the destruction of any combustible liquid or gaseous material by burning in a flare or flare stack;

D. Open burning for forest management and agriculture practices approved by the State Air Pollution Control Board; and

E. Open burning for the destruction of classified military documents.

Section (000-6). Permissible open burning.

A. Open burning is permitted on site for the destruction of leaves and tree, yard and garden trimmings located on the premises of private property, provided that the following conditions are met:

1. The burning takes place on the premises of the private property; (and)

2. The location of the burning is not less than 300 feet from any occupied building unless the occupants have given prior permission, other than a building located on the property on which the burning is conducted(; and

3. No regularly scheduled public or private collection service for such trimmings is available at the adjacent street or public road¹).

B. Open burning is permitted on-site for the destruction of household waste by homeowners or tenants, provided that the following conditions are met:

1. The burning takes place on the premises of the dwelling;

2. Animal carcasses or animal wastes are not burned;

3. Garbage is not burned; (and)

4. The location of the burning is not less than 300 feet from any occupied building unless the occupants have given prior permission, other than a building located on the property on which the burning is conducted (; and

5. No regularly scheduled public or private collection service for such refuse is available at the adjacent street or public road²).

C. Open burning is permitted on site for destruction of debris waste resulting from property maintenance, from the development or modification of roads and highways, parking areas, railroad tracks, pipelines, power and communication lines, buildings or building areas, sanitary landfills, or from any other clearing operations that may be approved by (designated local official), provided the following conditions are met:

1. All reasonable effort shall be made to minimize the amount of material burned, with the number and size of the debris piles approved by (designated local official);

2. The material to be burned shall consist of brush, stumps and similar debris waste and shall not include demolition material;

3. The burning shall be at least 500 feet from any occupied building unless the occupants have given prior permission, other than a building located on the property on which the burning is conducted;

4. The burning shall be conducted at the greatest distance practicable from highways and air fields,

5. The burning shall be attended at all times and conducted to ensure the best possible combustion with a minimum of smoke being produced;

6. The burning shall not be allowed to smolder beyond the minimum period of time necessary for the destruction of the materials; and

7. The burning shall be conducted only when the prevailing winds are away from any city, town or built-up area.

D. Open burning is permitted for destruction of debris on the site of local landfills provided that the burning does not take place on land that has been filled and covered so as to present an underground fire hazard due to the presence of methane gas, provided that the following conditions are met:

1. The burning shall take place on the premises of a local sanitary landfill that meets the provisions of the regulations of the Virginia Waste Management Board;

2. The burning shall be attended at all times;

3. The material to be burned shall consist only of brush, tree trimmings, yard and garden trimmings, clean burning waste, clean burning debris waste, or clean burning demolition waste;

4. All reasonable effort shall be made to minimize the amount of material that is burned;

5. No materials may be burned in violation of the regulations of the Virginia Waste Management Board or the State Air Pollution Control Board. The exact site of the burning on a local landfill shall be established in coordination with the regional director and (designated local official); no other site shall be used without the approval of these officials. (Designated local official) shall be notified of the days during which the burning will occur.

(E. Sections 000-6 A through D notwithstanding, no owner or other person shall cause or permit open burning or the use of a special incineration device during May, June, July, August, or September.³)

Section (000-7). Permits.

A. When open burning of debris waste (Section 000-6 C) or open burning of debris on the site of a local landfill (Section 000-6 D) is to occur within (local jurisdiction), the person responsible for the burning shall obtain a permit from (designated local official) prior to the burning. Such a permit may be granted only after confirmation by (designated local official) that the burning can and will comply with the provisions of this ordinance and any other conditions that are deemed necessary to ensure that the burning will not endanger the public health and welfare or to ensure compliance with any applicable provisions of the State Air Pollution Control Board's Regulations for the Control and Abatement of Air Pollution. The permit may be issued for each occasion of burning or for a specific period of time deemed appropriate by (designated local official).

B. Prior to the initial installation (or reinstallation, in cases of relocation) and operation of special incineration devices, the person responsible for the burning shall obtain a permit from (designated local official), such permits to be granted only after confirmation by (designated local official) that the burning can and will comply with the applicable provisions in Regulations for the Control and Abatement of Air Pollution and that any conditions are met that are deemed necessary by (designated local official) to ensure that the operation of the devices will not endanger the public health and welfare. Permits granted for the use of special incineration devices shall at a minimum contain the following conditions:

1. All reasonable effort shall be made to minimize the amount of material that is burned. Such efforts shall include, but are not limited to, the removal of pulpwood, sawlogs and firewood.

2. The material to be burned shall consist of brush, stumps and similar debris waste and shall not include demolition material.

3. The burning shall be at least 300 feet from any occupied building unless the occupants have given prior permission, other than a building located on the property on which the burning is conducted; burning shall be conducted at the greatest distance practicable from highways and air fields. If (designated local official) determines that it is necessary to protect public health and welfare, he may direct that any of the above cited distances be increased.

4. The burning shall be attended at all times and conducted to ensure the best possible combustion with a minimum of smoke being produced. Under no circumstances should the burning be allowed to smolder beyond the minimum period of time necessary for the destruction of the materials.

5. The burning shall be conducted only when the prevailing winds are away from any city, town or built-up area.

6. The use of special incineration devices shall be allowed only for the destruction of debris waste, clean burning construction waste, and clean burning demolition waste.

7. Permits issued under this subsection shall be limited to a specific period of time deemed appropriate by (designated local official).

(C. An application for a permit under Section 000-7 A or 000-7 B shall be accompanied by a processing fee of $----.⁴)

Section (000-8). Penalties for violation.

A. Any violation of this ordinance is punishable as a Class 1 misdemeanor. (See § 15.2-1429 of the Code of Virginia.)

B. Each separate incident may be considered a new violation.

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¹ This provision shall be included in ordinances for urban areas. It may be included in ordinances for nonurban areas.

² This provision shall be included in ordinances for urban areas. It may be included in ordinances for nonurban areas.

³ This provision shall be included in ordinances for jurisdictions within volatile organic compound emissions control areas. It may be included in ordinances for jurisdictions outside these areas.

⁴ The fee stipulation in this section is optional at the discretion of the jurisdiction.