Title of Regulation: 9VAC5-20. General Provisions (Rev. B16) (amending 9VAC5-20-180).

Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110 and 182 of the federal Clean Air Act; 40 CFR Part 51.

Effective Date: June 1, 2016.

Agency Contact: 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 karen.sabasteanski@deq.virginia.gov.

Summary:

On June 12, 2015 (80 FR 33840), the U.S. Environmental Protection Agency (EPA) issued a final State Implementation Plan (SIP) call concerning treatment of excess emissions in state rules by sources during periods of startup, shutdown, or malfunction (SSM), including Virginia's SSM rules at 9VAC5-20-180 G. The U.S. Court of Appeals for the District of Columbia Circuit in 2014 held that such provisions are illegal, and state plans must be amended accordingly. Essentially, EPA finds that 9VAC5-20-180 G as currently drafted creates an impermissible affirmative defense for violations of emission limits, therefore the amendments to this section remove the provisions allowing an affirmative defense.

9VAC5-20-180. Facility and control equipment maintenance or malfunction.

A. The provisions of this section apply to periods of excess emissions resulting from (i) the shutdown or bypassing, or both, of air pollution control equipment for necessary scheduled maintenance and (ii) malfunctions or other equipment failures of any affected facility or related air pollution control equipment.

B. In case of shutdown or bypassing, or both, of air pollution control equipment for necessary scheduled maintenance which results in excess emissions for more than one hour, the intent to shut down such equipment shall be reported to the board and local air pollution control agency, if any, at least 24 hours prior to the planned shutdown. Such prior notice shall include, but is not limited to, the following:

1. Identification of the specific facility to be taken out of service as well as its location and permit or registration number;

2. The expected length of time that the air pollution control equipment will be out of service;

3. The nature and quantity of emissions of air pollutants likely to occur during the shutdown period; and

4. Measures that will be taken to minimize the length of the shutdown and to negate the effect of the outage of the air pollution control equipment.

C. In the event that any affected facility or related air pollution control equipment fails or malfunctions in such a manner that may cause excess emissions for more than one hour, the owner shall, as soon as practicable but (i) no later than four daytime business hours after the malfunction is discovered, notify the board by facsimile transmission, telephone or telegraph of such failure or malfunction and shall (ii) within two weeks 14 days provide a written statement giving all pertinent facts, including the estimated duration of the breakdown and the demonstrations in subsection G of this section. Owners subject to the requirements of 9VAC5-40-50 C and 9VAC5-50-50 C are not required to provide the written statement prescribed in this subsection for facilities subject to the monitoring requirements of 9VAC5-40-40 and 9VAC5-50-40. When the condition causing the failure or malfunction has been corrected and the facility or control equipment is again in operation, the owner shall notify the board.

D. In the event that the breakdown period cited in subsection C of this section exists or is expected to exist for 30 days or more, the owner shall, as expeditiously as possible but no later than 30 days after the failure or malfunction and semi-monthly thereafter until the failure or malfunction is corrected, submit to the board a written report containing the following:

1. Identification of the specific facility that is affected as well as its location and permit or registration number;

2. The expected length of time that the air pollution control equipment will be out of service;

3. The nature and quantity of air pollutant emissions likely to occur during the breakdown period;

4. Measures to be taken to reduce emissions to the lowest amount practicable during the breakdown period;

5. A statement as to why the owner was unable to obtain repair parts or perform repairs which would allow compliance with the Regulations for the Control and Abatement of Air Pollution within 30 days of the malfunction or failure;

6. An estimate, with reasons given, of the duration of the shortage of repairs or repair parts which would allow compliance with the Regulations for the Control and Abatement of Air Pollution; and

7. Any other pertinent information as may be requested by the board.

E. The provisions of subsection D of this section shall not apply beyond three months of the date of the malfunction or failure. Should the breakdown period exist past the three-month period, the owner may apply for a variance in accordance with 9VAC5-20-50 A.

F. The following special provisions govern facilities which are subject to the provisions of Article 5 (9VAC5-50-400 et seq.) of Part II of 9VAC5 Chapter 50, 9VAC5-50 or Article 1 (9VAC5-60-60 et seq.) of 9VAC5 Chapter 60, or Article 2 (9VAC5-60-90 et seq.) of 9VAC5 Chapter 60 Part II of 9VAC5-60:

1. For sources subject to the applicable subparts listed in 9VAC5-50-410, any provisions governing malfunctions shall be implemented through this section. In cases where there are differences between the provisions of this section and the provisions of 40 CFR Part 60, the more restrictive provisions shall apply.

2. For sources subject to the applicable subparts listed in 9VAC5-60-70, any provisions governing malfunctions shall be implemented through this section. In cases where there are differences between the provisions of this section and the provisions of 40 CFR Part 61, the more restrictive provisions shall apply.

3. For sources subject to the applicable subparts listed in 9VAC5-60-100, any provisions governing malfunctions shall be implemented through this section. In cases where there are differences between the provisions of this section and the provisions of 40 CFR Part 63, the more restrictive provisions shall apply.

G. No violation of applicable emission standards or monitoring requirements shall be judged to have taken place In accordance with subsection C of this section, if the excess emissions or cessation of monitoring activities is due to a malfunction, provided that the owner may demonstrate the following:

1. The cause of the excess emissions or cessation of monitoring activities meets the definition of malfunction provided in 9VAC5-10-20;

1. 2. The procedural requirements of this section were met or the owner has submitted an acceptable application for a variance, which is subsequently granted;

2. 3. The owner has taken expeditious and reasonable measures to minimize emissions during the breakdown period;

3. 4. The owner has taken expeditious and reasonable measures to correct the malfunction and return the facility to a normal operation; and

4. 5. The source is in compliance with related applicable emission standards or monitoring requirements at least 90% of the operating time over the most recent 12-month period.

H. Nothing in this section shall be construed as giving an owner the right to increase temporarily the emission of pollutants or to circumvent the emission standards or monitoring requirements otherwise provided in the Regulations for the Control and Abatement of Air Pollution.

I. Regardless of any other provision of this section, the owner of any facility subject to the Regulations for the Control and Abatement of Air Pollution shall, upon request of the board, reduce the level of operation at the facility if the board determines that this is necessary to prevent a violation of any primary ambient air quality standard. Under worst case conditions, the board may order that the owner shut down the facility, if there is no other method of operation to avoid a violation of the primary ambient air quality standard. The board reserves the right to prescribe the method of determining if a facility will cause such a violation. In such cases, the facility shall not be returned to operation until it and the associated air pollution control equipment are able to operate without violation of any primary ambient air quality standard.

J. Any owner of an affected facility subject to the provisions of this section shall maintain records of the occurrence and duration of any bypass, malfunction, shutdown or failure of the facility or its associated air pollution control equipment that results in excess emissions for more than one hour. The records shall be maintained in a form suitable for inspection and maintained for at least two years (unless a longer period is specified in the applicable emission standard) following the date of the occurrence.