Title of Regulation: 9VAC5-80. Permits for Stationary Sources (Rev. E16) (amending 9VAC5-80-250, 9VAC5-80-650).

Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 112, 165, 173, and 182, and Title V of the Clean Air Act; 40 CFR Parts 51, 61, 63, 70, and 72.

Effective Date: November 16, 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, TTY (804) 698-4021, or email karen.sabasteanski@deq.virginia.gov.

Summary:

On June 12, 2015, the U.S. Environmental Protection Agency (EPA) issued a final state implementation plan 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 NRDC v. EPA (No. 10-1371) reviewed the EPA's action and held that the affirmative defense provisions were impermissible because they exceeded EPA's statutory authority. Therefore, state plans must be amended accordingly. EPA's Title V operating permit program at 40 CFR Part 70 contains affirmative defense provisions that the EPA is now proposing to remove. Virginia's operating permit regulations (Articles 1 and 3 of Part II of 9VAC5-80), which are based on 40 CFR Part 70, also contain an affirmative defense for malfunctions that also must now be removed. A number of minor administrative amendments are also made for more consistency with 9VAC5-20-180.

9VAC5-80-250. Malfunction.

A. A malfunction constitutes an affirmative defense to an action brought for noncompliance with technology-based emission limitations if In the event of a malfunction, the owner may demonstrate that the conditions of subsection B of this section are met.

B. The affirmative defense of malfunction shall be demonstrated by the permittee may, through properly signed, contemporaneous operating logs, or other relevant evidence that, show the following:

1. A malfunction occurred and the permittee can identify the cause or causes of the malfunction.

2. The permitted facility was at the time being properly operated.

3. During the period of the malfunction, the permittee took all reasonable steps to minimize levels of emissions that exceeded the emission standards or other requirements in the permit.

4. The permittee notified the board of the malfunction within two working days following the time when the emission limitations were exceeded due to the malfunction. This notification shall should include a description of the malfunction, any steps taken to mitigate emissions, and corrective actions taken. The notification may be delivered either orally or in writing. The notification may be delivered by electronic mail, facsimile transmission, telephone, telegraph, or any other method that allows the permittee to comply with the deadline. This notification fulfills the requirements of 9VAC5-80-110 F 2 b to report promptly deviations from permit requirements. This notification does not release the permittee from the malfunction reporting requirements under 9VAC5-20-180 C.

C. In any enforcement proceeding, the permittee seeking to establish the occurrence of a malfunction shall have the burden of proof.

D. The provisions of this section are in addition to any malfunction, emergency or upset provision contained in any applicable requirement.

9VAC5-80-650. Malfunction.

A. A malfunction constitutes an affirmative defense to an action brought for noncompliance with technology-based emission limitations if In the event of a malfunction, the owner may demonstrate that the conditions of subsection B of this section are met.

B. The affirmative defense of malfunction shall be demonstrated by the permittee may, through properly signed, contemporaneous operating logs, or other relevant evidence that, show the following:

1. A malfunction occurred and the permittee can identify the cause or causes of the malfunction.

2. The permitted facility was at the time being properly operated.

3. During the period of the malfunction the permittee took all reasonable steps to minimize levels of emissions that exceeded the emission standards, or other requirements in the permit.

4. The permittee notified the board of the malfunction within two working days following the time when the emission limitations were exceeded due to the malfunction. This notification shall should include a description of the malfunction, any steps taken to mitigate emissions, and corrective actions taken. The notification may be delivered either orally or in writing. The notification may be delivered by electronic mail, facsimile transmission, telephone, telegraph, or any other method that allows the permittee to comply with the deadline. This notification fulfills the requirements of 9VAC5-80-490 F 2 b to report promptly deviations from permit requirements. This notification does not release the permittee from the malfunction reporting requirements under 9VAC5-20-180 C.

C. In any enforcement proceeding, the permittee seeking to establish the occurrence of a malfunction shall have the burden of proof.

D. The provisions of this section are in addition to any malfunction, emergency or upset provision contained in any applicable requirement.