Title of Regulation: 4VAC25-40. Safety and Health Regulations for Mineral Mining (amending 4VAC25-40-25, 4VAC25-40-90, 4VAC25-40-120, 4VAC25-40-130, 4VAC25-40-190, 4VAC25-40-260, 4VAC25-40-350, 4VAC25-40-410, 4VAC25-40-720, 4VAC25-40-780, 4VAC25-40-800, 4VAC25-40-810, 4VAC25-40-880, 4VAC25-40-890, 4VAC25-40-1600, 4VAC25-40-2790, 4VAC25-40-2800, 4VAC25-40-2980, 4VAC25-40-3800, 4VAC25-40-3830, 4VAC25-40-3840, 4VAC25-40-3990, 4VAC25-40-4060, 4VAC25-40-4240, 4VAC25-40-4260, 4VAC25-40-4400; adding 4VAC25-40-365, 4VAC25-40-893, 4VAC25-40-925, 4VAC25-40-1095, 4VAC25-40-4061, 4VAC25-40-4062, 4VAC25-40-4063, 4VAC25-40-4064, 4VAC25-40-4065, 4VAC25-40-4066; repealing 4VAC25-40-3050, 4VAC25-40-3060, 4VAC25-40-3070, 4VAC25-40-3080, 4VAC25-40-3090, 4VAC25-40-3110, 4VAC25-40-3120).

Statutory Authority: §§ 45.1-161.3, 45.1-161.294, and 45.1-161.305 of the Code of Virginia.

Effective Date: July 8, 2009.

Agency Contact: David Spears, Regulatory Coordinator, Department of Mines, Minerals and Energy, Washington Building, 1100 Bank Street, Richmond, VA 23219, telephone (804) 692-3212, FAX (804) 692-3237, TTY (800) 828-1120, or email david.spears@dmme.virginia.gov.

Summary:

As a result of a periodic review, the Department of Mines, Minerals and Energy (DMME) has amended 4VAC25-40, Safety and Health Regulations for Mineral Mining. The amendments improve this chapter by making technical corrections, clarifying unclear language, updating references, making the regulation internally consistent and consistent with the Code of Virginia, and strengthening certain provisions relating to mine safety. Sections strengthened relate to blasting, mine rescue, and construction and maintenance of mine structures.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

4VAC25-40-25. Purpose and authority.

The purpose of this chapter is to provide for the protection of persons and property on and around mineral mines. The chapter works with the Virginia Mineral Mine Safety Act (§ 45.1-161.292:1 et seq.) of the Code of Virginia (as shown in Mineral Mine Safety Laws of Virginia, 1997 2005 edition). Refer to the Act for other definitions and requirements related to this chapter.

4VAC25-40-90. Documents incorporated by reference.

A. 1996 Threshold Limit Values and Biological Exposure Indices published by the American Conference of Governmental Industrial Hygienists.

B. American Table of Distances, 1991 edition, published by the Institute of Makers of Explosives.

C. National Electrical Code, 1996 2008 edition, published by the National Fire Protection Association.

D. Virginia Department of Labor and Industry, Boiler and Pressure Vessel Safety Division, Boiler and Pressure Vessel Regulations, amended 1995 2007 by the Virginia Department of Labor and Industry.

E. Bureau of Mines Instruction Guide 19, Mine Emergency Training, U.S. Department of Labor, 1972 edition.

F. Blasting Guidance Manual, U.S. Department of Interior, Office of Surface Mining Reclamation and Enforcement, 1987 edition.

G. The American National Standard for Wire Rope for Miners, M11.1-1980, published by the American National Standards Institute.

H. Addresses for references may be obtained from the division.

4VAC25-40-120. When foreman required.

When three or more persons are working in a mine, a certified mine foreman shall be employed who shall ensure that all activities under the foreman's supervision are conducted in a safe manner in compliance with applicable laws and regulations adopted by the department. The director may designate an approved competent person to perform the duties of a certified surface mine foreman except for the preshift examination made at the beginning of each shift.

4VAC25-40-130. Examination by foreman.

The certified mine foreman shall examine active workings at the beginning of each shift. Any hazardous or unsafe condition shall be corrected prior to personnel starting work in the affected area. If the hazardous or unsafe condition cannot be corrected immediately, the affected area shall be barricaded and posted with warning signs. A documented record of the examination shall be made and shall include the date, areas examined, time work began in the area, and time of examination. A documented record of hazards found and corrective actions taken shall also be made. The records shall be signed or certified by the certified mine foreman making the examination. A record Records of the daily inspection examinations made at the beginning of each shift shall be kept for one year.

4VAC25-40-190. Compliance with regulations.

Mine employees Miners shall comply with all state safety and health regulations applicable to their task or duties.

4VAC25-40-260. Posting hazards.

Areas containing safety or health hazards that are not immediate immediately obvious to personnel shall be barricaded or posted with warning signs specifying the hazard and proper safety procedures.

4VAC25-40-350. Repairing machinery.

Repairs or maintenance shall not be performed on machinery until the power is off and the machinery is blocked against motion, except where machinery motion is necessary to make adjustments. Energy sources, other than those related to electricity (which are covered under 4VAC25-40-2140 and 4VAC25-40-2150) or internal combustion (which are covered under 4VAC25-40-1685), which pose a hazard to miners, shall be tagged out and signed by marked by a means that identifies the individuals doing the work, and locked out if practical, by each authorized person exposed to the hazard. Tags or locks shall be removed only by the persons who installed them or by an authorized person, after ensuring that affected persons are in the clear.

4VAC25-40-365. Construction and maintenance of structures.

Structures shall be of substantial construction and maintained in safe condition.

4VAC25-40-410. Benches.

Benches shall be wide enough to allow safe operation and passage of equipment.

Part V
Air Quality and Physical Agents—Surface and Underground

4VAC25-40-720. Employee exposure limits to airborne contaminants.

With respect to airborne contaminants, the following shall apply:

1. Employees shall be withdrawn from areas where airborne contaminants given a "C" designation in Threshold Limit Values and Biological Exposure Indices are present in concentrations that exceed specified TLVs.

2. Control of employee exposure to harmful airborne contaminants shall be by feasible engineering control methods. If such control measures are not available, an approved program of controlling employee exposure to airborne contaminants shall be implemented by the operator. Miners exposed for short periods to gas, dust, fumes and mist-inhalation hazards shall wear permissible acceptable respiratory equipment appropriate for the hazard. When the exposure is for prolonged periods, other measures to protect workers or to reduce the hazard shall be taken.

Part VI
Explosives—Surface and Underground

4VAC25-40-780. Storage of explosive materials.

A. Detonators and explosives, other than blasting agents, shall be stored in magazines accepted by the Institute of Makers of Explosives or other approved agency.

B. Detonators shall not be stored in the same magazine with explosives.

C. Explosives magazines shall be:

1. Located in accordance with the American Table of Distances;

2. Detached structures located away from power lines, fuel storage areas, and other possible sources of fire;

3. Constructed substantially Of substantial construction and constructed of noncombustible material or covered with fire-resistant material;

4. Reasonably bullet resistant;

5. Electrically bonded and grounded if constructed of metal;

6. Made of nonsparking material on the inside, including floors;

7. Provided with adequate and effectively screened ventilation openings near the floor and ceiling;

8. Kept locked securely when unattended;

9. Posted with suitable danger signs so located that a bullet passing through the sign will not strike the magazine;

10. Used exclusively for storage of explosives or detonators and blasting-related materials;

11. Kept clean and dry in the interior and in good repair;

12. Unheated, unless heated in a manner that does not create a fire or explosion hazard. Electrical heating devices shall not be used inside a magazine; and

13. Located at least 300 feet away from any underground mine opening, occupied building, public road, or private road not used in connection with the mine.

D. An accurate inventory log of explosives stored in the magazine shall be maintained on site.

E. Any theft or unaccounted loss of explosives shall be reported immediately by telephone to local police, state police, the U.S. Department of Treasury Justice, [ The ] Bureau of Alcohol, Tobacco and, Firearms, and Explosives and the Division of Mineral Mining.

F. Smoking or open flames shall be prohibited within 50 feet of explosives magazines or blasting agents storage facilities.

G. Areas surrounding magazines and facilities for the storage of blasting agents shall be kept clear of combustible materials, except live trees over 10 feet tall, for a distance of 50 feet in all directions.

H. Prior to repairs of a magazine which may cause a fire or explosion, the contents shall be removed to a safe location and guarded.

I. Explosives stored in magazines shall be:

1. Arranged so that the oldest stock is used first;

2. Separated by brand and type;

3. Stored with their top sides up; and

4. Stacked in a stable manner not over eight feet high.

J. When stored with other explosives, ammonium nitrate fuel oil blasting agents shall be physically separated to prevent contamination.

K. Damaged or deteriorated explosives and blasting agents shall be destroyed in a safe manner by a certified blaster.

4VAC25-40-800. Use of explosives.

A. A certified blaster shall be in direct charge of blasting activities.

B. Persons who assist in blasting activities shall be under the direct supervision of the certified blaster in charge and shall be alerted to the hazards involved.

C. Black powder or safety fuse shall not be used without approval from the director. Special approvals shall specify use restrictions and procedures necessary for safe storage, transportation, and use.

D. The design and loading of a blast shall provide sufficient burden, spacing, and stemming to prevent flyrock or other dangerous effects. Flyrock incidents shall be reported to the division immediately and details noted in the blast record.

E. Boreholes shall not be drilled where there is a danger of intersecting a loaded or misfired hole.

F. No person shall smoke or use an open flame within 50 feet of explosives or detonators.

G. Prior to bringing explosives and detonators to the blast site, the certified blaster in charge shall:

1. Weather Monitor weather conditions shall be monitored to ensure safe loading and firing;

2. The Inspect the blast site shall be inspected for hazards;

3. The Inspect and clear the boreholes shall be inspected and cleared of obstructions; and

4. Personnel Remove personnel and equipment, except those used in loading the shot, shall be removed from the blast site.

H. The certified blaster in charge shall review the drill logs to determine specific downhole conditions prior to loading the shot.

H. I. Boreholes to be blasted shall be loaded as near to the blasting time as practical. Loaded shots shall be blasted as soon as possible upon completion of loading and connection to the initiation device. Surface blasting shall be conducted during daylight hours only.

I. J. Explosives shall be kept a safe distance from detonators until they are made into a primer.

J. K. Primers shall not be made up or assembled in advance of the borehole being loaded.

K. L. Only wooden or other nonsparking implements shall be used to punch holes in an explosive cartridge.

L. M. Detonators shall be inserted completely and securely into explosive cartridges used as primers. Priming shall be sufficient to detonate the explosive column in the borehole.

M. N. Primers shall be inserted into the borehole slowly to prevent accidental detonation from impact, and tamping shall not be done directly on the primer.

N. O. Tamping poles shall be constructed of wood and/or nonsparking materials.

O. P. Unused explosives, detonators, and blasting agents shall be returned to the magazine or storage facility upon completion of loading activities and prior to firing the blast.

P. Q. Equipment and machinery used to load or stem boreholes shall not be operated over loaded boreholes for any reason. Areas containing loaded boreholes shall be guarded or barricaded and posted to prevent unauthorized entry.

Q. R. Blast warning signals shall be established and posted at the mine. Audible warning signals shall be given prior to firing a blast.

R. S. All personnel shall be removed from the blast area prior to connection to the initiation device and the firing of a blast.

S. T. Blasting personnel shall fire shots from a safe location.

T. U. A post-blast examination of the blast area shall be made by the certified blaster in charge. Other personnel shall not return to the blasting area until an all clear signal is received from the certified blaster in charge.

4VAC25-40-810. Recordkeeping.

A detailed record of each surface blast shall be prepared immediately by the certified blaster. Records shall be maintained for three years and subject to inspection by the division mine inspectors. Records shall contain the following information:

1. Name of company or contractor;

2. Location, date, and time of blast;

3. Name, signature, and certification number of the certified blaster in charge;

4. Type of material blasted;

5. Number of holes, and burden and spacing for each hole;

6. Diameter, depth and condition Drill logs of boreholes as required by 4VAC25-40-1095;

7. Types of explosives used;

8. Total amount of explosives used;

9. Maximum amount of explosives per delay period of eight milliseconds or greater;

10. Method of firing and type of circuit;

11. Direction and distance in feet to nearest dwelling house, public building, school, church, commercial or institutional building neither owned nor leased by the person conducting the blasting;

12. Weather conditions (including such factors as wind directions, etc.);

13. Height or length of stemming;

14. Whether mats or other protections were used;

15. Type of detonators used and delay periods used timing of detonation for each detonator used;

16. The person taking the seismograph reading shall accurately indicate exact location of seismograph, if used, and shall also show the distance of seismograph from blast;

17. Seismograph records, including seismograph readings, where required:

a. Name and signature of person operating seismograph;

b. Name of person analyzing the seismograph record; and

c. Seismograph reading; and

18. Maximum number of holes per delay period of eight milliseconds or greater; and

19. All anomalies or abnormalities occurring during the execution of the blast and actions taken to correct or address them.

4VAC25-40-880. Ground vibration from blasting.

A. Ground vibration, measured as peak particle velocity resulting from blasting, shall not exceed the limits set forth below at any inhabited building not owned or leased by the operator, without approval of the director. A seismographic record shall be provided for each blast.

Distance (D) to nearest inhabited building, feet	Peak Particle Velocity, inches per second	Ds (when not using a seismograph)
0 - 300	1.25	50
301 - 5,000	1.00	55
5,001 and beyond	0.75	65

B. If seismic Seismic monitoring of each blast is not shall be conducted, blasting shall be in accordance unless the scaled distance, Ds, as calculated with the following scaled distance formulas, is 90 or greater:

W = Maximum charge weight of explosives per delay period of 8.0 milliseconds or more.

D = Distance in feet from the blast site to the nearest inhabited building not owned or leased by the mine operator.

Ds = Scaled distance factor shown in table in subsection A of this section.

C. The operator may use the alternative ground vibration limits shown below to determine the maximum allowable ground vibration. If these limits are used, a seismographic record including both particle velocity and vibration frequency levels shall be kept for each blast. Ground vibration levels and airblast levels are taken from the Blasting Guidance Manual.

4VAC25-40-890. Airblast Air overpressure limits.

Airblast Air overpressure resulting from surface blasting shall not exceed 129 133 decibels, as measured with a 2Hz or lower flat response microphone, at any private inhabited building not owned or leased by the operator unless an alternate level based on the sensitivity of the seismograph microphone as specified below is being used.

Lower Frequency Limit of Measuring System, in Hz	Max. Level in dB (3dB)
1 Hz or lower--flat response*	134 peak
2 Hz or lower--flat response	133 peak
6 Hz or lower--flat response	129 peak
C-weighted slow response	105 peak dBC

*Only when approved by the director.

4VAC25-40-893. Action plans.

Each operator shall maintain a plan to control the effects of blasting on areas adjacent to the operation. This plan will be documented and made available for review by the Division of Mineral Mining upon request.

4VAC25-40-925. Electronic detonators.

Electronic detonation systems shall be approved by the director as providing performance equivalent to that required in 4VAC25-40-920, and shall be used in accordance with the manufacturer's instructions.

4VAC25-40-1095. Drill logs required for boreholes intended for blasting.

For each borehole intended for blasting, the driller shall produce a drill log as each hole is being drilled. The drill log shall include, at minimum, the name of the driller, borehole diameter, borehole depth, depth of broken material at the collar, and other geological conditions (for example, cracks, seams, voids, mud, or any other anomalies that could affect the blast) encountered during drilling. A signed copy of the drill log shall be provided to the mine operator and a copy shall be included in the record of the blast.

4VAC25-40-1600. Avoiding loaders mobile equipment in operation.

Persons shall remain clear of mobile equipment in operation and shall not work or pass under the buckets or booms of loaders equipment in operation.

4VAC25-40-2790. Inspection of work area.

Miners shall examine and test, where possible, the back, face, and ribs of their working areas, visually and by sounding, at the beginning of each shift and frequently thereafter. Competent persons shall examine the ground conditions during daily visits to ensure that proper testing and ground control practices are being followed. Loose ground shall be taken down or adequately supported before any other work is done. Ground conditions along haulageways and travelways shall be examined periodically and scaled or supported as necessary.

4VAC25-40-2800. Scaling bar to be provided.

A scaling bar of proper length and blunt on one end design shall be provided where manual scaling may be required. Picks or other short tools shall not be used for scaling when this use places the user in danger of from falling material.

4VAC25-40-2980. Open flame restrictions.

Fires shall not be built underground; open flame torches and candles shall not be left underground shall be attended at all times while lit.

4VAC25-40-3050. Mine rescue stations. (Repealed.)

A mine rescue station equipped with at least 10 sets of approved and properly maintained two-hour, self-contained, breathing apparatus, adequate supplies, and spare parts shall be maintained at mines employing 75 or more persons underground or, in lieu thereof, the mine shall be affiliated with a central mine rescue station.

4VAC25-40-3060. Central or cooperative stations. (Repealed.)

Mines at which individual mine rescue stations are not maintained shall affiliate with central or cooperative mine rescue stations.

4VAC25-40-3070. Rescue apparatus. (Repealed.)

Mine rescue apparatus acceptable to the MSHA or other approved agency shall be properly maintained for immediate use. The equipment shall be tested at least once a month and records kept of the test.

4VAC25-40-3080. Rescue crews to be provided. (Repealed.)

At any mine employing 75 or more persons underground, at least two rescue crews (10 persons) shall be trained at least annually in the use, care, and limitations of self-contained breathing and firefighting apparatus and in mine rescue procedures. Smaller mines shall have at least one person so trained for each 10 persons employed underground. These persons shall complete, at minimum, an approved course of instruction as prescribed by MSHA's Office of Educational Policy and Development in the use, care, and maintenance of the type of breathing apparatus which will be used by the mine rescue team. The instruction shall be given by division personnel or by persons approved to give such instruction.

4VAC25-40-3090. Rescue crew personnel. (Repealed.)

Rescue crews shall include supervisory and key personnel familiar with all mine installations that could prove vital to firefighting and rescue operations.

4VAC25-40-3110. Mine evacuation drills. (Repealed.)

Mine evacuation drills shall be held for each shift once every six months. These evacuation drills shall involve all employees each shift and shall include:

1. Activation of the fire alarm system; and

2. Evacuation of all persons from their work areas to the surface or to designated central evacuation points at some time other than a shift change.

Records of such drills, showing the time and date, shall be kept for at least two years after each drill.

4VAC25-40-3120. Instruction in escape plans. (Repealed.)

All employees involved in the escape and evacuation plan for an underground operation shall be instructed at least once each calendar year on current escape and evacuation plans, fire alarm signals, and applicable procedures to be followed in case of fire or other emergency. New employees shall receive such instructions before going underground. Whenever an employee is assigned to work in another area of the mine, he shall be instructed on the escapeway for that area at the time of such assignment. However, employees who normally work in more than one area of the mine shall be instructed at least once each calendar year in the location of escapeways for all areas of the mine in which they normally work or travel. Whenever a change is made in escape and evacuation plans and procedures for any area of the mine, all affected employees shall be instructed of such change. Records of instruction shall be kept for two years.

4VAC25-40-3800. Steep Fixed ladders.

Ladders with an inclination of more than 70° off the horizontal shall be offset and have landing gates, backguards or substantial landings at least every 30 feet. Fixed ladders shall be equipped with backguards starting at a point not more than seven feet from the bottom of the ladder meet the requirements of 4VAC25-40-1990 and 4VAC25-40-2000.

4VAC25-40-3830. Refuge areas.

Refuge areas shall be:

1. Of fire-resistant construction, preferably in untimbered areas of the mine;

2. Large enough to accommodate readily the normal number of persons in the particular area of the mine;

3. Constructed so they can be made gas-tight; and

4. Provided with compressed air lines, waterlines telephones, adequate air and water supplies, suitable hand tools, and stopping materials.

4VAC25-40-3840. Development of escape and evacuation plan.

A specific escape and evacuation plan, and revisions thereof, suitable to the conditions and mining system of the mine and showing assigned responsibilities of all key personnel in the event of an emergency shall be developed by the operator and set out in written form. A copy of the plan and revisions thereof shall be available to the director or an authorized representative, and any affiliated mine rescue teams. Also copies of the plans and revisions thereof shall be posted at locations convenient to all persons on the surface and underground. Such a plan shall be updated as necessary and shall be reviewed jointly by the operator and the director or his authorized representative at least once every six months from the date of the last review. The plan shall include:

1. Mine maps or diagrams showing all underground workings, locations of surface and underground ventilation fans and ventilation controls, directions of principal air flow, locations of refuge chambers, locations of first aid supplies and firefighting equipment, locations of main electrical installations and disconnects, locations of surface and underground fuel storage, locations of surface and underground facilities to store explosives and detonators, location of escape routes and locations of existing telephones or other voice communication devices (see 4VAC25-40-3120 and 4VAC25-40-3850);

2. A plan for fire prevention, warning, emergency evacuation, firefighting plan and emergency medical assistance;

3. Surface procedure to follow in an emergency, including the notification of proper authorities and preparing rescue equipment and other equipment which may be used in rescue and recovery operations; and

4. A statement of the location and availability of mine rescue personnel and equipment;

5. A plan for instruction of mine workers and rescue personnel; and

4. 6. A statement of the availability of emergency communication and communications, transportation facilities, emergency power and ventilation and location of rescue personnel and equipment.

4VAC25-40-3990. Self-rescue devices to be made available requirements.

A Each mine having underground workings shall submit to the [ Division division ] a plan for the number, type, and location(s) of self-rescue devices sufficient for the number of persons working underground and the hazards particular to the underground workings of the mine. At a minimum, a one hour filter self-rescue device approved by the MSHA shall be made available by the operator to all personnel underground. The filter self-rescue devices shall be maintained in a good condition by a daily visual check and weighing of the devices every six months, with maintenance records kept.

Article 9
Safety Program

4VAC25-40-4060. Mine emergency and self-rescue training.

A. On an annual basis all persons who are required to go underground shall be instructed in an approved course contained in applicable sections of the Bureau of Mines Instruction Guide 19, Mine Emergency Training.

B. On an annual basis all persons who are required to go underground shall be instructed in the use of the individual self-rescuer self-rescue device provided to them. The instruction shall be given by division personnel or by persons who are approved by the MSHA to give such instructions; provided, however, that if a division instructor or an approved instructor is not immediately available, such instruction of new employees in self-rescuers may be conducted by competent persons a competent person using a training model of the same type as the self-rescue device provided to the employee.

4VAC25-40-4061. Mine rescue stations.

Mines employing 75 or more persons underground shall either:

1. Maintain a mine rescue station equipped with at least 10 self-contained oxygen breathing apparatus, each with a minimum of two hours capacity, along with adequate supplies and spare parts; or

2. Affiliate with central or cooperative mine rescue stations that can provide two fully equipped mine rescue teams in the event of an emergency. Such affiliations shall be in writing and must be approved annually by the director.

4VAC25-40-4062. Rescue apparatus.

Mine rescue apparatus shall be acceptable to the MSHA or other approved agency and shall be properly maintained for immediate use. The equipment shall be tested at least once a month and records kept of the tests for at least one year.

4VAC25-40-4063. Rescue crews to be provided.

At any mine employing 75 or more persons underground, at least two rescue crews of five persons each shall be trained at least annually in the use, care, and limitations of self-contained oxygen breathing and firefighting apparatus and in mine rescue procedures. The training shall be given by division personnel or by persons approved to give such instruction. Rescue crews shall include supervisory and key personnel familiar with all mine installations that could prove vital to firefighting and rescue operations.

4VAC25-40-4064. Alternative mine rescue capability.

Mines employing fewer than 75 persons underground shall maintain mine rescue capabilities as described in 4VAC25-40-4061 through 4VAC25-40-4063, or the operator may request in writing and obtain approval from the director for an alternative mine rescue capability. Such alternative mine rescue plans shall be subject to annual review and approval.

4VAC25-40-4065. Mine evacuation drills.

Mine evacuation drills shall be held for each shift once every six months. These evacuation drills shall involve all employees each shift and shall include:

1. Activation of the fire alarm system; and

2. Evacuation of all persons from their work areas to the surface or to designated central evacuation points at some time other than a shift change.

Records of such drills, showing the time and date, shall be kept for at least two years after each drill.

4VAC25-40-4066. Instruction in escape plans.

All persons who work underground shall be instructed at least once each calendar year on current escape and evacuation plans, fire alarm signals, and applicable procedures to be followed in case of fire or other emergency. New employees shall receive such instructions before going underground. Whenever an employee is assigned to work in another area of the mine, he shall be instructed on the escapeway for that area at the time of such assignment. However, employees who normally work in more than one area of the mine shall be instructed at least once each calendar year in the location of escapeways for all areas of the mine in which they normally work or travel. Whenever a change is made in escape and evacuation plans and procedures for any area of the mine, all affected employees shall be instructed of such change. Records of instruction shall be kept for two years.

4VAC25-40-4240. Installation of wire ropes.

At installation, the nominal strength (manufacturer's published catalog strength) of wire ropes used for hoisting shall meet the minimum rope strength values obtained by the following formulas in which "L" equals the maximum suspended rope length in feet:

1. Winding drum ropes (all constructions, including rotation resistant):

For rope lengths less than 3,000 feet:

Minimum Value = Static Load X (7.0 - 0.001L)

For rope lengths 3,000 feet or greater:

Minimum Value = Static Load X 4.0

2. Friction drum ropes:

For rope lengths less than 4,000 feet:

Minimum Value = Static Load X (7.0 - 0.005L) (7.0 - 0.0005L)

For rope lengths 4,000 feet or greater:

Minimum Value = Static Load X 5.0

3. Tall Tail ropes (balance ropes):

Minimum Value = Weight of Rope X 7.0

4VAC25-40-4260. Wire rope examination.

A. Wire rope attachments shall be replaced when cracked, deformed, or excessively worn.

B. At least once every 14 calendar days, each wire rope in service shall be visually examined along its entire active length for visible structural damage, corrosion, and improper lubrication or dressing. In addition, visual examination for wear and broken wires shall be made at stress points, including the area near attachments, where the rope rests on sheaves, where the rope leaves the drum, at drum crossovers, and at change of layer regions. When any visible condition that results in a reduction of rope strength is present, the affected portion of the rope shall be examined on a daily basis.

C. Before any person is hoisted with a newly installed wire rope or any wire rope that has not been examined in the previous 14 calendar days, the wire rope shall be examined in accordance with subsection B of this section.

D. At least once every six months, nondestructive tests shall be conducted of the active length of the rope, or rope diameter measurements shall be made:

1. Wherever wear is evident;

2. Where the hoist rope rests on sheaves at regular stopping points; and

3. Where the hoist rope leaves the drum at regular stopping points and at drum crossover and change of layer regions.

E. At the completion of each examination required by subsections B, C and D of this section, the person making the examination shall certify by signature and date that the examination has been made. If any condition listed in subsection D B of this section is present, the person conducting the examination shall make a record of the condition and the date. Certifications and records of examinations shall be retained for one year.

F. The person making the measurements or nondestructive tests as required by subsection D of this section shall record the measurements or test results and the date. This record shall be retained until the rope is retired from service.

4VAC25-40-4400. Specifications for buckets used to hoist persons.

Buckets used to hoist persons during shaft sinking operations shall be provided with adequate guide ropes and shall have crossheads equipped with safety catches and protective bonnets when the shaft depth exceeds 50 feet.

Titles of Regulations: 9VAC5-20. General Provisions (amending 9VAC5-20-21).

9VAC5-45. Consumer and Commercial Products (adding 9VAC5-45-10 through 9VAC5-45-850).

Statutory Authority: § 10.1-1308 of the Code of Virginia.

Public Hearing Information:

July 22, 2009 - 10 a.m. - Department of Environmental Quality, Northern Regional Office, Conference Room 1, 13901 Crown Court, Woodbridge, VA

Public Comments: Public comments may be submitted until 5 p.m. on August 10, 2009.

Agency Contact: Gary E. Graham, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4103, FAX (804) 698-4510, or email gegraham@deq.virginia.gov.

Basis: Section 10.1-1308 of the Code of Virginia authorizes the State Air Pollution Control Board to promulgate regulations abating, controlling, and prohibiting air pollution in order to protect public health and welfare.

Purpose: The purpose of these regulations is to require owners to limit emissions of air pollution from portable fuel containers, certain consumer products, architectural and industrial maintenance coatings, and paving operations to the level necessary for (i) the protection of public health and welfare, and (ii) the attainment and maintenance of the air quality standards. The proposed amendments are being made to adopt new and revised standards for the control of VOC emissions from adhesive and sealants, portable fuel containers, and certain consumer products within the Northern Virginia and Fredericksburg VOC Emissions Control Areas. This action is being taken to allow Virginia to meet its obligation to implement control measures in areas designated as nonattainment under the eight-hour ozone standard and to implement contingency measures within former nonattainment areas that have been redesignated as ozone maintenance areas.

Substance: The proposed regulatory action adds a new chapter (9VAC5-45) specifically for regulations pertaining to consumer and commercial products and is applicable to specific product types and the owners that are involved in the manufacture, distribution, retail sales, and in some cases, the marketing and use of those products. In Part I of the new chapter, special provisions specify the general testing, monitoring, compliance, notification, recordkeeping, and reporting requirements that are applicable to all articles in the new chapter and specify certain other sections of the regulations that are not generally applicable. Exceptions to the special provisions are addressed in each individual article of the new chapter.

In Part II of Chapter 45:

1. The proposed regulatory action establishes standards for portable fuel containers for products manufactured before and after January 1, 2009, as new Articles 1 and 2 in Chapter 45, respectively, and applies to all of the products subject to the current provisions of Chapter 40, Article 42, Portable Fuel Container Spillage. Article 1 clarifies some Article 42 exemptions and definitions, adds another exemption category, removes obsolete standards and their associated administrative requirements, and provides criteria for sell-through of products. Because Article 1 applies to all products manufactured before January 1, 2009, and is designed to replace Chapter 40, Article 42, the compliance schedule proposed for Article 1 is the same as that in Chapter 40, Article 42. Article 2 applies to all portable fuel container products manufactured on or after January 1, 2009, and requires board precertification of new portable fuel container products as compliant with new labeling requirements and with new and more stringent design and performance standards. Article 2 also includes applicability to a new category of owner, and adds (i) new and revised exemptions, (ii) new certification procedures, (iii) new testing standards, and (iv) alternative compliance provisions for innovative products over those provisions now applicable under Chapter 40, Article 42. The new Article 2 specifies a compliance deadline no later than January 1, 2009. Chapter 40, Article 42 will be repealed at an appropriate time after the standards in the new Articles 1 and 2 are effective.

2. The proposed regulatory action establishes standards Consumer Products for products manufactured before and after January 1, 2009, as a new Articles 3 and 4 in Chapter 45, respectively and applies to all of the products subject to the current provisions of Chapter 40, Article 50 Consumer Products. Article 3 pertains to consumer products manufactured before January 1, 2009, clarifies some definitions and standards, makes the Alternative Control Plan procedures more flexible, revises labeling, reporting and other administrative requirements, and clarifies sell-through criteria. Because Article 3 applies to all products manufactured before January 1, 2009, and is designed to replace Chapter 40, Article 50, the compliance schedule proposed for Article 3 is the same as Chapter 40, Article 50. Article 4 applies to all consumer products manufactured after January 1, 2009, and includes all of the changes made in Article 3, adds more definitions and standards for some new product categories and establishes new labeling and other administrative requirements. Article 4 specifies a compliance deadline no later than January 1, 2009. Chapter 40, Article 50 will be repealed at an appropriate time after the standards in the new Articles 3 and 4 are effective.

3. The proposed regulatory action establishes standards for Architectural and Industrial Maintenance Coatings and incorporates all of the provisions of Chapter 40, Article 49 Emission Standards for Architectural and Industrial Maintenance Coatings into a new Article 5 in Chapter 45, except that the new Article 5 removes some obsolete reporting requirements and changes the remaining one to a recordkeeping requirement. Because the standards and other provisions of the new Article 5 are not substantively changed from what is in Chapter 40, Article 49, no new compliance dates are proposed. Chapter 40, Article 49 will be repealed at an appropriate time after the new Article 5 standards are effective.

4. The proposed regulatory action will add a new regulation, Article 6 in the new chapter 45 that establishes new emission standards for Adhesives and Sealants. The provisions of this article apply to owners who sell, supply, offer for sale or manufacture for sale commercial adhesives, sealants, adhesive primers, or sealant primers that contain volatile organic compounds within the Northern Virginia and Fredericksburg VOC Emissions Control Areas. The provisions will also apply to owners that use, apply for compensation, or solicit the use or application of such products in those areas. Exempted from the regulation is any such product manufactured in the Northern Virginia or Fredericksburg VOC Emissions Control Areas for shipment and use outside of these areas. The provisions of this regulation will not apply to a manufacturer or distributor who sells, supplies, or offers for sale such products that do not comply with the VOC standards as long as the manufacturer or distributor can demonstrate both that the product is intended for shipment and use outside of those areas and that the manufacturer or distributor has taken reasonable prudent precautions to assure that the product is not distributed in those areas. A number of product-specific exemptions are also allowed. VOC content limits are specified for different product categories. Control technology guidelines are offered as an alternate means of achieving compliance with the standards. Test methods, registration requirements, and recordkeeping procedures are provided. This article specifies a compliance deadline of January 1, 2009.

5. The proposed regulatory action establishes standards for asphalt paving operations and incorporates all of the provisions of Chapter 40, Article 39 Emission Standards for Asphalt Paving Operations as a new Article 7 in Chapter 45. Applicability provisions in Article 7 apply to owners instead of sources and a new definition of paving operations is added that clarifies the types of operations to which the provisions of the regulation apply. Since the standards and other provisions in this article are not substantively changed, no new compliance date is proposed. Chapter 40, Article 39 will be repealed at an appropriate time after the new Article 7 standards are effective.

Issues: 1. Public: The primary advantage to the public is that the adoption of these regulations will significantly decrease emissions of VOCs in the Northern Virginia and Fredericksburg areas, thus benefiting public health and welfare. There are no disadvantages to the public.

2. Regulated Community: The primary advantage to the regulated community is that the new regulations are clearer and have fewer reporting requirements than some of the regulations they replace. The primary disadvantages are that there may be fewer days that certain products may be applied, and there may be a need for worker training for some users to learn how to apply some of the compliant products correctly.

3. Department: The primary advantages to the department are that the adoption of these regulations will allow Virginia (i) to attain and maintain air quality standards and improve public health of Virginians, and (ii) to uphold its promise to its jurisdictional neighbors (Maryland and Washington, D.C.) to all take similar regulatory action in order to minimize regulatory differences across the affected borders. The primary disadvantage to the department is increased compliance cost to administer the new regulations.

Localities Particularly Affected: The localities particularly affected by the proposed regulations are the counties of Arlington, Fairfax, Loudoun, Prince William, Stafford, and Spotsylvania; and the cities of Alexandria, Fairfax, Falls Church, Manassas, Manassas Park, and Fredericksburg.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. In order to comply with Environmental Protection Agency (EPA) and statutory mandates, the Virginia Air Pollution Control Board (board) proposes several regulatory changes including: 1) amending the portable fuel container spillage and consumer products provisions to conform to the strategies recommended by the OTC, 2) prohibiting owners from manufacturing, distributing, selling, and using noncompliant consumer and commercial adhesive and sealant products and architectural and industrial maintenance coating products, and 3) prohibiting the mixing, storage, and application of noncompliant emulsified asphalt coating products, with an exception for coating residential driveways.

Result of Analysis. The benefits likely exceed the costs for one or more proposed changes. There is insufficient data to accurately compare the magnitude of the benefits versus the costs for other changes.

Estimated Economic Impact. In 2004, the Environmental Protection Agency (EPA) promulgated the Phase 1 Ozone Implementation Regulation to provide a process for classifying volatile organic compound (VOC) Emissions Control Areas, based on the severity of their ozone problems, and establishing deadlines for state and local governments to reduce ozone levels. The phase 1 regulation established a process for transitioning from implementation of the 1-hour ozone air quality standard to the more protective 8-hour ozone air quality standard.

The Phase 2 Ozone Implementation Regulation was promulgated by the EPA in 2005 to provide the remaining elements of the process to implement the 8-hour ozone air quality standard. The phase 2 EPA regulation outlines emissions control and planning requirements for states to address as they develop their state implementation plans (SIPs) demonstrating how they will reduce ozone pollution to meet the 8-hour ozone standard. Additionally, the regulation requires states to demonstrate that non-attainment areas will attain the 8-hour ozone standard as expeditiously as practicable.

Four areas of Virginia are designated as non-attainment areas under the 8-hr ozone standard: Northern Virginia, Hampton Roads, Richmond, and Western Virginia. These areas have been classified as VOC emissions control areas and must implement the control and contingency measures necessary to attain the 8-hour ozone standard. Fredericksburg has been designated as an attainment area. Accordingly, it is considered to be a “maintenance area” and thus, must maintain original controls as well as implement additional ones as needed to maintain the 8-hour ozone standard.

The federal Ozone Transport Commission (OTC) has identified what are considered the least cost methods of ozone control that will enable states to attain the 8-hour ozone standard within Ozone Transport Regions (OTR). The board proposed consumer and commercial product requirements for these regulations are consistent with these least cost methods recommended by the OTC in order for the Commonwealth to meet the EPA mandated 8-hour ozone standard.

As mentioned above, the board proposed requirements include: 1) amending the portable fuel container spillage and consumer products provisions to conform to the strategies recommended by the OTC, 2) prohibiting owners from manufacturing, distributing, selling, and using noncompliant consumer and commercial adhesive and sealant products and architectural and industrial maintenance coating products, and 3) prohibiting the mixing, storage, and application of noncompliant emulsified asphalt coating products, with an exception for coating residential driveways.

Altogether, the proposed amendments would enable the Department of Environmental Quality (DEQ) to implement control and contingency measures in the Northern Virginia VOC Emissions Control Area to demonstrate that the Northern Virginia non-attainment area will meet its goal of attainment by June 15, 2010. The new and revised regulations would also be implemented in the Fredericksburg Maintenance Area in order to provide the most cost-effective additional VOC contingency measures for the Fredericksburg Maintenance Area.

The following costs and savings are projected for all regulated entities in the Northern Virginia and Fredericksburg VOC Emissions Control Areas for implementation and compliance and include projected reporting, recordkeeping and other administrative costs: 1) Portable Fuel Containers: insignificant cost to Virginia small businesses or individuals, 2) Consumer Products: up to, but likely somewhat less than $6,500,000 cost per year for manufacturers, distributors and retailers of consumer products in the region combined, 3) Architectural and Industrial Coatings: $3,200 savings annually per reporting facility, 4) Adhesives and Sealants: $1,200,000 per year cost shared between manufacturers, distributors, and contractors, 5) Asphalt Paving: no significant net cost or savings.

The adoption of this regulation will decrease emissions of VOC in the Northern Virginia and Fredericksburg areas by an estimated total of 8.3 tons per day or more.¹ This significant emissions reduction will benefit public health and welfare by reducing ozone. Ozone injures vegetation, has adverse effects on materials (rubber and fabrics), and is a pulmonary irritant that affects respiratory mucous membranes, lung tissues, and respiratory functions. Reducing ozone will thus likely result in healthier citizens and reduce property damage. It will also allow Virginia to avoid federal sanctions that would be imposed for violating the SIP provisions of the Clean Air Act and to uphold its promise to its jurisdictional neighbors (Maryland and Washington, D.C.) to take this action.

Businesses and Entities Affected. The proposed amendments potentially affect 476 manufacturers, distributors and retailers of consumer products, one manufacturer of architectural and industrial coatings, approximately 2500 firms who either produce or use or apply adhesives and sealants, and 78 asphalt paving contractors, most of whom qualify as small businesses.²

Localities Particularly Affected. The proposed regulations particularly affect the counties of Arlington, Fairfax, Loudoun, Prince William, Stafford and Spotsylvania and the cities of Alexandria, Fairfax, Falls Church, Manassas, Manassas Park and Fredericksburg.

Projected Impact on Employment. The increased costs for manufacturers, distributors and retailers of consumer products and manufacturers of adhesives and sealants and contractors who use adhesives and sealants will likely reduce profitability for some products. This will consequently have a likely moderate negative impact on employment.

Effects on the Use and Value of Private Property. Manufacturing that produces VOC will be altered in ways that will reduce VOC emission. This will increase costs and consequently moderately reduce the value of some firms.

Small Businesses: Costs and Other Effects. The proposed amendments will increase costs for some small businesses such as manufacturers, distributors and retailers of consumer products and manufacturers of adhesives and sealants and contractors who use adhesives and sealants.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Though the board’s proposals add costs for some small businesses, there is not a clear alternative that reduces the adverse impact and still enables the Commonwealth to meet EPA requirements.

Real Estate Development Costs. The proposed amendments may moderately, but probably not significantly, add to real estate development costs via increased costs associated with adhesives, sealants, and consumer products.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.

_____________________________

¹ Data source: Department of Environmental Quality

² Data source: via Department of Environmental Quality, the Virginia Employment Commission database on April 21, 2008.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The department has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

A new chapter (9VAC5-45) is established for the control of volatile organic compound (VOC) emissions from various consumer and commercial products in the Northern Virginia and Fredericksburg VOC Emissions Control Areas. The new chapter consists of two parts. The first part of the new chapter contains general requirements pertaining to all of the types of consumer and commercial products regulated. The second part is composed of articles that contain VOC content and emission standards for individual types of consumer products and contain the control technology, testing, monitoring, administrative, recordkeeping, and reporting requirements necessary to determine compliance with each of the applicable standards.

The new chapter includes two articles that control VOC emissions from portable fuel containers and spouts. These articles implement design, performance, and labeling standards for portable fuel container products before and after January 1, 2009, and prohibit owners from manufacturing, distributing, and selling noncompliant products.

The new chapter includes two articles that control VOC emissions from certain types of consumer products. These articles implement VOC content standards for some individual product categories before and after January 1, 2009, and prohibit owners from manufacturing, distributing, advertising, or selling noncompliant products.

The new chapter includes an article for the control of VOC emissions from architectural and industrial maintenance coatings that implements VOC content standards for all such coating products and prohibits owners from manufacturing, distributing, selling, and using noncompliant products.

The new chapter includes an article that controls VOC emissions from adhesives, adhesive primers, sealants, and sealant primers that implements VOC content limits for those products and prohibits owners from manufacturing, distributing, selling, or applying noncompliant products.

Finally, the new chapter includes an article that controls VOC emissions from asphalt paving operations, which prescribes the use of emulsified asphalt coatings except for the purpose of coating residential driveways and prohibits the mixing, storage, and application of noncompliant products.

Titles of Regulations: 9VAC5-20. General Provisions (amending 9VAC5-20-21).

9VAC5-45. Consumer and Commercial Products (adding 9VAC5-45-10 through 9VAC5-45-850).

Statutory Authority: § 10.1-1308 of the Code of Virginia.

Public Hearing Information:

July 22, 2009 - 10 a.m. - Department of Environmental Quality, Northern Regional Office, Conference Room 1, 13901 Crown Court, Woodbridge, VA

Public Comments: Public comments may be submitted until 5 p.m. on August 10, 2009.

Agency Contact: Gary E. Graham, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4103, FAX (804) 698-4510, or email gegraham@deq.virginia.gov.

Basis: Section 10.1-1308 of the Code of Virginia authorizes the State Air Pollution Control Board to promulgate regulations abating, controlling, and prohibiting air pollution in order to protect public health and welfare.

Purpose: The purpose of these regulations is to require owners to limit emissions of air pollution from portable fuel containers, certain consumer products, architectural and industrial maintenance coatings, and paving operations to the level necessary for (i) the protection of public health and welfare, and (ii) the attainment and maintenance of the air quality standards. The proposed amendments are being made to adopt new and revised standards for the control of VOC emissions from adhesive and sealants, portable fuel containers, and certain consumer products within the Northern Virginia and Fredericksburg VOC Emissions Control Areas. This action is being taken to allow Virginia to meet its obligation to implement control measures in areas designated as nonattainment under the eight-hour ozone standard and to implement contingency measures within former nonattainment areas that have been redesignated as ozone maintenance areas.

Substance: The proposed regulatory action adds a new chapter (9VAC5-45) specifically for regulations pertaining to consumer and commercial products and is applicable to specific product types and the owners that are involved in the manufacture, distribution, retail sales, and in some cases, the marketing and use of those products. In Part I of the new chapter, special provisions specify the general testing, monitoring, compliance, notification, recordkeeping, and reporting requirements that are applicable to all articles in the new chapter and specify certain other sections of the regulations that are not generally applicable. Exceptions to the special provisions are addressed in each individual article of the new chapter.

In Part II of Chapter 45:

1. The proposed regulatory action establishes standards for portable fuel containers for products manufactured before and after January 1, 2009, as new Articles 1 and 2 in Chapter 45, respectively, and applies to all of the products subject to the current provisions of Chapter 40, Article 42, Portable Fuel Container Spillage. Article 1 clarifies some Article 42 exemptions and definitions, adds another exemption category, removes obsolete standards and their associated administrative requirements, and provides criteria for sell-through of products. Because Article 1 applies to all products manufactured before January 1, 2009, and is designed to replace Chapter 40, Article 42, the compliance schedule proposed for Article 1 is the same as that in Chapter 40, Article 42. Article 2 applies to all portable fuel container products manufactured on or after January 1, 2009, and requires board precertification of new portable fuel container products as compliant with new labeling requirements and with new and more stringent design and performance standards. Article 2 also includes applicability to a new category of owner, and adds (i) new and revised exemptions, (ii) new certification procedures, (iii) new testing standards, and (iv) alternative compliance provisions for innovative products over those provisions now applicable under Chapter 40, Article 42. The new Article 2 specifies a compliance deadline no later than January 1, 2009. Chapter 40, Article 42 will be repealed at an appropriate time after the standards in the new Articles 1 and 2 are effective.

2. The proposed regulatory action establishes standards Consumer Products for products manufactured before and after January 1, 2009, as a new Articles 3 and 4 in Chapter 45, respectively and applies to all of the products subject to the current provisions of Chapter 40, Article 50 Consumer Products. Article 3 pertains to consumer products manufactured before January 1, 2009, clarifies some definitions and standards, makes the Alternative Control Plan procedures more flexible, revises labeling, reporting and other administrative requirements, and clarifies sell-through criteria. Because Article 3 applies to all products manufactured before January 1, 2009, and is designed to replace Chapter 40, Article 50, the compliance schedule proposed for Article 3 is the same as Chapter 40, Article 50. Article 4 applies to all consumer products manufactured after January 1, 2009, and includes all of the changes made in Article 3, adds more definitions and standards for some new product categories and establishes new labeling and other administrative requirements. Article 4 specifies a compliance deadline no later than January 1, 2009. Chapter 40, Article 50 will be repealed at an appropriate time after the standards in the new Articles 3 and 4 are effective.

3. The proposed regulatory action establishes standards for Architectural and Industrial Maintenance Coatings and incorporates all of the provisions of Chapter 40, Article 49 Emission Standards for Architectural and Industrial Maintenance Coatings into a new Article 5 in Chapter 45, except that the new Article 5 removes some obsolete reporting requirements and changes the remaining one to a recordkeeping requirement. Because the standards and other provisions of the new Article 5 are not substantively changed from what is in Chapter 40, Article 49, no new compliance dates are proposed. Chapter 40, Article 49 will be repealed at an appropriate time after the new Article 5 standards are effective.

4. The proposed regulatory action will add a new regulation, Article 6 in the new chapter 45 that establishes new emission standards for Adhesives and Sealants. The provisions of this article apply to owners who sell, supply, offer for sale or manufacture for sale commercial adhesives, sealants, adhesive primers, or sealant primers that contain volatile organic compounds within the Northern Virginia and Fredericksburg VOC Emissions Control Areas. The provisions will also apply to owners that use, apply for compensation, or solicit the use or application of such products in those areas. Exempted from the regulation is any such product manufactured in the Northern Virginia or Fredericksburg VOC Emissions Control Areas for shipment and use outside of these areas. The provisions of this regulation will not apply to a manufacturer or distributor who sells, supplies, or offers for sale such products that do not comply with the VOC standards as long as the manufacturer or distributor can demonstrate both that the product is intended for shipment and use outside of those areas and that the manufacturer or distributor has taken reasonable prudent precautions to assure that the product is not distributed in those areas. A number of product-specific exemptions are also allowed. VOC content limits are specified for different product categories. Control technology guidelines are offered as an alternate means of achieving compliance with the standards. Test methods, registration requirements, and recordkeeping procedures are provided. This article specifies a compliance deadline of January 1, 2009.

5. The proposed regulatory action establishes standards for asphalt paving operations and incorporates all of the provisions of Chapter 40, Article 39 Emission Standards for Asphalt Paving Operations as a new Article 7 in Chapter 45. Applicability provisions in Article 7 apply to owners instead of sources and a new definition of paving operations is added that clarifies the types of operations to which the provisions of the regulation apply. Since the standards and other provisions in this article are not substantively changed, no new compliance date is proposed. Chapter 40, Article 39 will be repealed at an appropriate time after the new Article 7 standards are effective.

Issues: 1. Public: The primary advantage to the public is that the adoption of these regulations will significantly decrease emissions of VOCs in the Northern Virginia and Fredericksburg areas, thus benefiting public health and welfare. There are no disadvantages to the public.

2. Regulated Community: The primary advantage to the regulated community is that the new regulations are clearer and have fewer reporting requirements than some of the regulations they replace. The primary disadvantages are that there may be fewer days that certain products may be applied, and there may be a need for worker training for some users to learn how to apply some of the compliant products correctly.

3. Department: The primary advantages to the department are that the adoption of these regulations will allow Virginia (i) to attain and maintain air quality standards and improve public health of Virginians, and (ii) to uphold its promise to its jurisdictional neighbors (Maryland and Washington, D.C.) to all take similar regulatory action in order to minimize regulatory differences across the affected borders. The primary disadvantage to the department is increased compliance cost to administer the new regulations.

Localities Particularly Affected: The localities particularly affected by the proposed regulations are the counties of Arlington, Fairfax, Loudoun, Prince William, Stafford, and Spotsylvania; and the cities of Alexandria, Fairfax, Falls Church, Manassas, Manassas Park, and Fredericksburg.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. In order to comply with Environmental Protection Agency (EPA) and statutory mandates, the Virginia Air Pollution Control Board (board) proposes several regulatory changes including: 1) amending the portable fuel container spillage and consumer products provisions to conform to the strategies recommended by the OTC, 2) prohibiting owners from manufacturing, distributing, selling, and using noncompliant consumer and commercial adhesive and sealant products and architectural and industrial maintenance coating products, and 3) prohibiting the mixing, storage, and application of noncompliant emulsified asphalt coating products, with an exception for coating residential driveways.

Result of Analysis. The benefits likely exceed the costs for one or more proposed changes. There is insufficient data to accurately compare the magnitude of the benefits versus the costs for other changes.

Estimated Economic Impact. In 2004, the Environmental Protection Agency (EPA) promulgated the Phase 1 Ozone Implementation Regulation to provide a process for classifying volatile organic compound (VOC) Emissions Control Areas, based on the severity of their ozone problems, and establishing deadlines for state and local governments to reduce ozone levels. The phase 1 regulation established a process for transitioning from implementation of the 1-hour ozone air quality standard to the more protective 8-hour ozone air quality standard.

The Phase 2 Ozone Implementation Regulation was promulgated by the EPA in 2005 to provide the remaining elements of the process to implement the 8-hour ozone air quality standard. The phase 2 EPA regulation outlines emissions control and planning requirements for states to address as they develop their state implementation plans (SIPs) demonstrating how they will reduce ozone pollution to meet the 8-hour ozone standard. Additionally, the regulation requires states to demonstrate that non-attainment areas will attain the 8-hour ozone standard as expeditiously as practicable.

Four areas of Virginia are designated as non-attainment areas under the 8-hr ozone standard: Northern Virginia, Hampton Roads, Richmond, and Western Virginia. These areas have been classified as VOC emissions control areas and must implement the control and contingency measures necessary to attain the 8-hour ozone standard. Fredericksburg has been designated as an attainment area. Accordingly, it is considered to be a “maintenance area” and thus, must maintain original controls as well as implement additional ones as needed to maintain the 8-hour ozone standard.

The federal Ozone Transport Commission (OTC) has identified what are considered the least cost methods of ozone control that will enable states to attain the 8-hour ozone standard within Ozone Transport Regions (OTR). The board proposed consumer and commercial product requirements for these regulations are consistent with these least cost methods recommended by the OTC in order for the Commonwealth to meet the EPA mandated 8-hour ozone standard.

As mentioned above, the board proposed requirements include: 1) amending the portable fuel container spillage and consumer products provisions to conform to the strategies recommended by the OTC, 2) prohibiting owners from manufacturing, distributing, selling, and using noncompliant consumer and commercial adhesive and sealant products and architectural and industrial maintenance coating products, and 3) prohibiting the mixing, storage, and application of noncompliant emulsified asphalt coating products, with an exception for coating residential driveways.

Altogether, the proposed amendments would enable the Department of Environmental Quality (DEQ) to implement control and contingency measures in the Northern Virginia VOC Emissions Control Area to demonstrate that the Northern Virginia non-attainment area will meet its goal of attainment by June 15, 2010. The new and revised regulations would also be implemented in the Fredericksburg Maintenance Area in order to provide the most cost-effective additional VOC contingency measures for the Fredericksburg Maintenance Area.

The following costs and savings are projected for all regulated entities in the Northern Virginia and Fredericksburg VOC Emissions Control Areas for implementation and compliance and include projected reporting, recordkeeping and other administrative costs: 1) Portable Fuel Containers: insignificant cost to Virginia small businesses or individuals, 2) Consumer Products: up to, but likely somewhat less than $6,500,000 cost per year for manufacturers, distributors and retailers of consumer products in the region combined, 3) Architectural and Industrial Coatings: $3,200 savings annually per reporting facility, 4) Adhesives and Sealants: $1,200,000 per year cost shared between manufacturers, distributors, and contractors, 5) Asphalt Paving: no significant net cost or savings.

The adoption of this regulation will decrease emissions of VOC in the Northern Virginia and Fredericksburg areas by an estimated total of 8.3 tons per day or more.¹ This significant emissions reduction will benefit public health and welfare by reducing ozone. Ozone injures vegetation, has adverse effects on materials (rubber and fabrics), and is a pulmonary irritant that affects respiratory mucous membranes, lung tissues, and respiratory functions. Reducing ozone will thus likely result in healthier citizens and reduce property damage. It will also allow Virginia to avoid federal sanctions that would be imposed for violating the SIP provisions of the Clean Air Act and to uphold its promise to its jurisdictional neighbors (Maryland and Washington, D.C.) to take this action.

Businesses and Entities Affected. The proposed amendments potentially affect 476 manufacturers, distributors and retailers of consumer products, one manufacturer of architectural and industrial coatings, approximately 2500 firms who either produce or use or apply adhesives and sealants, and 78 asphalt paving contractors, most of whom qualify as small businesses.²

Localities Particularly Affected. The proposed regulations particularly affect the counties of Arlington, Fairfax, Loudoun, Prince William, Stafford and Spotsylvania and the cities of Alexandria, Fairfax, Falls Church, Manassas, Manassas Park and Fredericksburg.

Projected Impact on Employment. The increased costs for manufacturers, distributors and retailers of consumer products and manufacturers of adhesives and sealants and contractors who use adhesives and sealants will likely reduce profitability for some products. This will consequently have a likely moderate negative impact on employment.

Effects on the Use and Value of Private Property. Manufacturing that produces VOC will be altered in ways that will reduce VOC emission. This will increase costs and consequently moderately reduce the value of some firms.

Small Businesses: Costs and Other Effects. The proposed amendments will increase costs for some small businesses such as manufacturers, distributors and retailers of consumer products and manufacturers of adhesives and sealants and contractors who use adhesives and sealants.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Though the board’s proposals add costs for some small businesses, there is not a clear alternative that reduces the adverse impact and still enables the Commonwealth to meet EPA requirements.

Real Estate Development Costs. The proposed amendments may moderately, but probably not significantly, add to real estate development costs via increased costs associated with adhesives, sealants, and consumer products.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.

_____________________________

¹ Data source: Department of Environmental Quality

² Data source: via Department of Environmental Quality, the Virginia Employment Commission database on April 21, 2008.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The department has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

A new chapter (9VAC5-45) is established for the control of volatile organic compound (VOC) emissions from various consumer and commercial products in the Northern Virginia and Fredericksburg VOC Emissions Control Areas. The new chapter consists of two parts. The first part of the new chapter contains general requirements pertaining to all of the types of consumer and commercial products regulated. The second part is composed of articles that contain VOC content and emission standards for individual types of consumer products and contain the control technology, testing, monitoring, administrative, recordkeeping, and reporting requirements necessary to determine compliance with each of the applicable standards.

The new chapter includes two articles that control VOC emissions from portable fuel containers and spouts. These articles implement design, performance, and labeling standards for portable fuel container products before and after January 1, 2009, and prohibit owners from manufacturing, distributing, and selling noncompliant products.

The new chapter includes two articles that control VOC emissions from certain types of consumer products. These articles implement VOC content standards for some individual product categories before and after January 1, 2009, and prohibit owners from manufacturing, distributing, advertising, or selling noncompliant products.

The new chapter includes an article for the control of VOC emissions from architectural and industrial maintenance coatings that implements VOC content standards for all such coating products and prohibits owners from manufacturing, distributing, selling, and using noncompliant products.

The new chapter includes an article that controls VOC emissions from adhesives, adhesive primers, sealants, and sealant primers that implements VOC content limits for those products and prohibits owners from manufacturing, distributing, selling, or applying noncompliant products.

Finally, the new chapter includes an article that controls VOC emissions from asphalt paving operations, which prescribes the use of emulsified asphalt coatings except for the purpose of coating residential driveways and prohibits the mixing, storage, and application of noncompliant products.

Title of Regulation: 9VAC5-80. Permits for Stationary Sources (amending 9VAC5-80-1615, 9VAC5-80-1625, 9VAC5-80-1695, 9VAC5-80-1925, 9VAC5-80-1935, 9VAC5-80-1945, 9VAC5-80-1955, 9VAC5-80-1965, 9VAC5-80-2010, 9VAC5-80-2020, 9VAC5-80-2140, 9VAC5-80-2200, 9VAC5-80-2210, 9VAC5-80-2220, 9VAC5-80-2230, 9VAC5-80-2240; adding 9VAC5-80-1915, 9VAC5-80-2195).

Statutory Authority: § 10.1-1308 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comments: Public comments may be submitted until 5 p.m. on July 8, 2009.

Effective Date: July 23, 2009.

Agency Contact: Gary E. Graham, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4103, or email gegraham@deq.virginia.gov.

Basis: Section 10.1-1308 of the Code of Virginia authorizes the State Air Pollution Control Board to promulgate regulations abating, controlling, and prohibiting air pollution in order to protect public health and welfare.

Purpose: The purpose of the regulations is to (i) require the owner of a proposed new or modified facility to provide such information as may be needed to enable the board to conduct a preconstruction review in order to determine compliance with applicable control technology and other standards and to assess the impact of the emissions from the facility on air quality and (ii) provide the basis for the board's final action (approval or disapproval) on the permit depending upon the results of the preconstruction review.

The proposed amendments are being made to allow the terms and conditions of the various elements of the new source review (NSR) program to be combined into a single permit. These amendments will protect the health and welfare of citizens because they will (i) make issuance of NSR permits more effective and efficient, (ii) clarify understanding of the permitting process, (iii) make the permitting process more transparent, and (iv) redirect limited department resources to issues of greater concern to the public.

Rationale for Using Fast-Track Process: Virginia’s NSR program consists of several regulations: two for major NSR (PSD or nonattainment), one for minor NSR, and one for major sources of hazardous air pollutants (HAPs). It is possible that an individual source could simultaneously need permits for the purposes of major NSR, minor NSR, and HAPs. In the interest of efficiency, provisions allowing permits to be combined were created to allow owners to have a single application for these permits, and to allow the agency to issue a single permit.

The ability to combine multiple permit elements into a single NSR permit was accepted by EPA when initially established as an element of the NSR program. Recently, during the public comment period on a state regulatory action developed in response to an EPA major NSR reform initiative, EPA objected to these provisions and indicated that the regulations would not be approved into the SIP if combining permits was allowed. Although the department did not concur with the basis for EPA’s objections, these provisions were removed from the major NSR rules in order to ensure approvability of the SIP.

The inability to combine permits creates significant negative effects:

1. If major and minor NSR permits cannot be combined, virtually every major NSR change will result in two permits. Generating two different sets of permit terms and conditions results in a significant workload increase.

2. Keeping major NSR and minor NSR terms and conditions separated into two different permits does not preserve any terms and conditions as purely major NSR or minor NSR terms or conditions.

3. The opportunity for public review and comment is reduced.

4. Compliance issues result from confusion about where the applicable terms and conditions for a pollutant reside when there is more than one effective permit.

In developing this proposal, EPA was consulted to determine how combining permits could be restored while addressing their concerns. Language acceptable to EPA was developed, and combining permits is now considered to be SIP-approvable by EPA.

The ability to combine permits will be a great benefit to the department, the regulated community, and the public, with EPA’s concurrence. Therefore, no objections to the restoration of the program are anticipated, and the fast-track process is appropriate.

Substance:

1. Provisions have been added to allow the terms and conditions of the various elements of the NSR program to be combined into a single permit.

2. Provisions that specify the NSR programs to be used for the issuance of PAL permits have been revised in order to limit the issuance of these permits via a state operating permit.

3. Provisions that provide certain exemptions related to the use of alternative fuels or raw materials have been updated to comply with recent amendments to § 10.1-1322.4 of the Code of Virginia and restructured to ensure no conflict with federal law or regulation.

Issues:

1. Public: Advantages to the general public include more effective and efficient issuance of NSR permits, which will contribute to the protection of health and welfare. The general public will also benefit from a clearer understanding of the permitting process, as well as a more transparent process. The regulated community will enjoy the same benefits in addition to the benefits of avoiding unnecessary permitting.

2. Department: The department will benefit by avoiding unnecessary and duplicative permitting efforts, and will be better able to direct limited resources in a more effective and efficient manner. Compliance and enforcement activities will also benefit from focus on a single, comprehensive permit rather than many competing permits.

3. There are no disadvantages associated with this action.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Air Pollution Control Board (Board) proposes to revise the current new source review (NSR) permit requirements to combine the terms and conditions of the various elements of the NSR program into a single permit. The proposed changes would add a new section to set out the procedure for combining permits. The proposed changes would also exempt alternative fuels or raw materials from the permit requirements to conform with new provisions in the Code and to ensure that there are no conflicts with federal law or regulation. The Department of Environmental Quality (DEQ) worked with the U.S. Environmental Protection Agency (EPA) to develop these provisions.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Virginia’s NSR program consists of several regulations: two for major NSR (prevention of significant deterioration or nonattainment), one for minor NSR, and one for major sources of hazardous air pollutants (HAPs). It is possible that an individual source could simultaneously need permits for the purposes of major NSR, minor NSR, and HAPs. In the interest of efficiency, provisions allowing permits to be combined were created to allow owners to have a single application for these permits, and to allow the agency to issue a single permit.

According to DEQ the ability to combine multiple permit elements into a single NSR permit was accepted by EPA when initially established as an element of the NSR program. Recently, during the public comment period on a state regulatory action developed in response to an EPA major NSR reform initiative, EPA objected to these provisions and indicated that the regulations would not be approved into the State Implementation Plan (SIP) if combining permits was allowed. Although DEQ did not concur with the basis for EPA’s objections, these provisions were removed from the major NSR rules in order to ensure approvability of the SIP.

The inability to combine permits creates significant negative effects. First, if major and minor NSR permits cannot be combined, virtually every major NSR change will result in two permits. Generating two different sets of permit terms and conditions results in a significant workload increase. DEQ estimates that it takes 1000 hours of staff time to review, negotiate, write and issue a prevention of significant deterioration major NSR permit, 667 hours of staff time to review, negotiate, write and issue a nonattainment major NSR permit, and 175 hours of staff time to review, negotiate, write and issue a minor NSR permit. On the other hand combining a prevention of significant deterioration major NSR permit with a minor NSR permit, for example, would only require approximately 1000 hours, saving 175 hours of staff time. Regulated entities also must use significantly more staff time with separate permits.

Second, keeping major NSR and minor NSR terms and conditions separated into two different permits does not preserve any terms and conditions as purely major NSR or minor NSR terms or conditions, prompting confusion. Third, the opportunity for public review and comment is reduced. Fourth, compliance issues result from confusion about where the applicable terms and conditions for a pollutant reside when there is more than one effective permit.

In developing this proposal, DEQ consulted EPA to determine how combining permits could be restored while addressing their concerns. The Board with DEQ assistance developed language acceptable to EPA. Combining permits as proposed by the Board is now considered to be SIP-approvable by EPA.

The proposal to allow the combination of multiple permit elements into a single NSR permit will be beneficial to the public in that there will be more effective and efficient issuance of NSR permits, which will contribute to the protection of health and welfare. The general public will also benefit from a clearer understanding of the permitting process, as well as a more transparent process. The regulated community will enjoy the same benefits in addition to the benefits of avoiding the time, dollars and confusion associated with unnecessary permitting. DEQ will benefit by avoiding unnecessary and duplicative permitting efforts that consume significant amounts of staff time, and will be better able to direct limited resources in a more effective and efficient manner. Compliance and enforcement activities will also benefit from focus on a single, comprehensive permit rather than many competing permits. There are no known cost increases due to the proposal. Therefore the proposal will produce net benefits.

Businesses and Entities Affected. The proposed amendments affect any owner who constructs a new major stationary source of air pollutants or makes a major modification to any major stationary source, as well as DEQ.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. Significantly reducing the amount of staff time required to handle permitting will reduce costs for firms, allowing them to be moderately more profitable. This may result in a small gain in employment in the long run.

Effects on the Use and Value of Private Property. The proposal to allow the combination of multiple permit elements into a single NSR permit will reduce costs for firms that must obtain such permits. This will commensurately increase the value of such firms.

Small Businesses: Costs and Other Effects. The proposal to allow the combination of multiple permit elements into a single NSR permit will reduce costs for small businesses that must obtain such permits. This will commensurately increase the value of such small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments do not produce adverse impact for small businesses.

Real Estate Development Costs. The proposed amendments can potentially moderately reduce real estate development costs in some cases.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, Section 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The department has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

The existing regulations establish a new source review (NSR) permit program whereby owners of sources locating in prevention of significant deterioration (PSD) and nonattainment areas are required to obtain a permit prior to construction of a new major source or a major modification (physical or operational change) to an existing one. The regulations are being amended to:

1. Add provisions to allow the terms and conditions of the various elements of the NSR program to be combined into a single permit.

2. Revise the provisions that specify the NSR programs to be used for the issuance of PAL permits in order to limit the issuance of these permits via a state operating permit.

3. Update and restructure the provisions that provide certain exemptions related to the use of alternative fuels or raw materials to comply with recent amendments to § 10.1-1322.4 of the Code of Virginia and to ensure no conflict with federal law or regulation.

9VAC5-80-1615. Definitions.

A. As used in this article, all words or terms not defined herein shall have the meaning given them in 9VAC5-10 (General Definitions), unless otherwise required by context.

B. For the purpose of this article, 9VAC5-80-280 and 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 meaning given them in subsection C of this section:

C. Terms defined.

"Actual emissions" means the actual rate of emissions of a regulated NSR pollutant from an emissions unit, as determined in accordance with subdivisions a through c of this definition, except that this definition shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a PAL under 9VAC5-80-1865. Instead, the definitions of "projected actual emissions" and "baseline actual emissions" shall apply for those purposes.

a. In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a consecutive 24-month period that precedes the particular date and that is representative of normal source operation. The board will allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

b. The board may presume that source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit.

c. For any emissions unit that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.

"Actuals PAL for a major stationary source" means a PAL based on the baseline actual emissions of all emissions units at the source that emit or have the potential to emit the PAL pollutant.

"Administrator" means the administrator of the U.S. Environmental Protection Agency (EPA) or an authorized representative.

"Adverse impact on visibility" means visibility impairment that interferes with the management, protection, preservation or enjoyment of the visitor's visual experience of the federal class I area. This determination shall be made on a case-by-case basis taking into account the geographic extent, intensity, duration, frequency and time of visibility impairment, and how these factors correlate with (i) times of visitor use of the federal class I areas, and (ii) the frequency and timing of natural conditions that reduce visibility.

"Allowable emissions" means the emissions rate of a stationary source calculated using the maximum rated capacity of the source (unless the source is subject to federally and state enforceable limits that restrict the operating rate, or hours of operation, or both) and the most stringent of the following:

a. The applicable standards as set forth in 40 CFR Parts 60, 61, and 63;

b. The applicable implementation plan emissions limitation including those with a future compliance date; or

c. The emissions limit specified as a federally and state enforceable permit condition, including those with a future compliance date.

For the purposes of actuals PALs, "allowable emissions" shall also be calculated considering any emission limitations that are enforceable as a practical matter on the emissions unit's potential to emit.

"Applicable federal requirement" means all of, but not limited to, the following as they apply to emissions units in a source subject to this article (including requirements that have been promulgated or approved by the administrator through rulemaking at the time of permit issuance but have future-effective compliance dates):

a. Any standard or other requirement provided for in an implementation plan established pursuant to § 110 or § 111(d) of the federal Clean Air Act, including any source-specific provisions such as consent agreements or orders.

b. Any limit or condition in any construction permit issued under the new source review program or in any operating permit issued pursuant to the state operating permit program.

c. Any emission standard, alternative emission standard, alternative emission limitation, equivalent emission limitation or other requirement established pursuant to § 112 or § 129 of the federal Clean Air Act as amended in 1990.

d. Any new source performance standard or other requirement established pursuant to § 111 of the federal Clean Air Act, and any emission standard or other requirement established pursuant to § 112 of the federal Clean Air Act before it was amended in 1990.

e. Any limitations and conditions or other requirement in a Virginia regulation or program that has been approved by EPA under subpart E of 40 CFR Part 63 for the purposes of implementing and enforcing § 112 of the federal Clean Air Act.

f. Any requirement concerning accident prevention under § 112(r)(7) of the federal Clean Air Act.

g. Any compliance monitoring requirements established pursuant to either § 504(b) or § 114(a)(3) of the federal Clean Air Act.

h. Any standard or other requirement for consumer and commercial products under § 183(e) of the federal Clean Air Act.

i. Any standard or other requirement for tank vessels under § 183(f) of the federal Clean Air Act.

j. Any standard or other requirement in 40 CFR Part 55 to control air pollution from outer continental shelf sources.

k. Any standard or other requirement of the regulations promulgated to protect stratospheric ozone under Title VI of the federal Clean Air Act unless the administrator has determined that such requirements need not be contained in a permit issued under this article.

l. With regard to temporary sources subject to 9VAC5-80-130, (i) any ambient air quality standard, except applicable state requirements, and (ii) requirements regarding increments or visibility as provided in this article.

"Baseline actual emissions" means the rate of emissions, in tons per year, of a regulated NSR pollutant, as determined in accordance with the following:

a. For any existing electric utility steam generating unit, baseline actual emissions means the average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-month period selected by the owner within the five-year period immediately preceding when the owner begins actual construction of the project. The board will allow the use of a different time period upon a determination that it is more representative of normal source operation.

(1) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.

(2) The average rate shall be adjusted downward to exclude any noncompliant emissions that occurred while the source was operating above any emission limitation that was legally enforceable during the consecutive 24-month period.

(3) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period shall be used to determine the baseline actual emissions for the emissions units being changed. The same consecutive 24-month period shall be used for each different regulated NSR pollutant unless the owner can demonstrate to the satisfaction of the board that a different consecutive 24-month period for a different pollutant or pollutants is more appropriate due to extenuating circumstances.

(4) The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by subdivision a (2) of this definition.

b. For an existing emissions unit (other than an electric utility steam generating unit), baseline actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner within the five-year period immediately preceding either the date the owner begins actual construction of the project, or the date a complete permit application is received by the board for a permit required under this article, whichever is earlier, except that the five-year period shall not include any period earlier than November 15, 1990. The board will allow the use of a different time period upon a determination that it is more representative of normal source operation.

(1) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.

(2) The average rate shall be adjusted downward to exclude any noncompliant emissions that occurred while the source was operating above any emission limitation that was legally enforceable during the consecutive 24-month period.

(3) The average rate shall be adjusted downward to exclude any emissions that would have exceeded an emission limitation with which the major stationary source must currently comply, had such major stationary source been required to comply with such limitations during the consecutive 24-month period. However, if an emission limitation is part of a maximum achievable control technology standard that the administrator proposed or promulgated under 40 CFR Part 63, the baseline actual emissions need only be adjusted if the board has taken credit for such emissions reductions in an attainment demonstration or maintenance plan consistent with the requirements of 9VAC5-80-2120 K.

(4) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period shall be used to determine the baseline actual emissions for all the emissions units being changed. The same consecutive 24-month period shall be used for each different regulated NSR pollutant unless the owner can demonstrate to the satisfaction of the board that a different consecutive 24-month period for a different pollutant or pollutants is more appropriate due to extenuating circumstances.

(5) The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by subdivisions b (2) and (3) of this definition.

c. For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase that will result from the initial construction and operation of such unit shall equal zero; and thereafter, for all other purposes, shall equal the unit's potential to emit.

d. For a PAL for a stationary source, the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in subdivision a of this definition, for other existing emissions units in accordance with the procedures contained in subdivision b of this definition, and for a new emissions unit in accordance with the procedures contained in subdivision c of this subsection.

"Baseline area":

a. Means any intrastate area (and every part thereof) designated as attainment or unclassifiable under § 107(d)(1)(C) of the federal Clean Air Act in which the major source or major modification establishing the minor source baseline date would construct or would have an air quality impact equal to or greater than 1 μg/m³ (annual average) of the pollutant for which the minor source baseline date is established.

b. Area redesignations under § 107(d)(3) of the federal Clean Air Act cannot intersect or be smaller than the area of impact of any major stationary source or major modification that:

(1) Establishes a minor source baseline date; or

(2) Is subject to this article or 40 CFR 52.21 and would be constructed in the same state as the state proposing the redesignation.

c. Any baseline area established originally for the TSP increments shall remain in effect and shall apply for purposes of determining the amount of available PM₁₀ increments, except that such baseline area shall not remain in effect if the board rescinds the corresponding minor source baseline date in accordance with subdivision d of the definition of "baseline date."

"Baseline concentration"

a. Means that ambient concentration level that exists in the baseline area at the time of the applicable minor source baseline date. A baseline concentration is determined for each pollutant for which a minor source baseline date is established and shall include:

(1) The actual emissions representative of sources in existence on the applicable minor source baseline date, except as provided in subdivision b of this definition; and

(2) The allowable emissions of major stationary sources that commenced construction before the major source baseline date, but were not in operation by the applicable minor source baseline date.

b. The following will not be included in the baseline concentration and will affect the applicable maximum allowable increase(s):

(1) Actual emissions from any major stationary source on which construction commenced after the major source baseline date; and

(2) Actual emissions increases and decreases at any stationary source occurring after the minor source baseline date.

"Baseline date"

a. "Major source baseline date" means:

(1) In the case of particulate matter and sulfur dioxide, January 6, 1975; and

(2) In the case of nitrogen dioxide, February 8, 1988.

b. "Minor source baseline date" means the earliest date after the trigger date on which a major stationary source or a major modification subject to this article submits a complete application under this article. The trigger date is:

(1) In the case of particulate matter and sulfur dioxide, August 7, 1977; and

(2) In the case of nitrogen dioxide, February 8, 1988.

c. The baseline date is established for each pollutant for which increments or other equivalent measures have been established if:

(1) The area in which the proposed source or modification would construct is designated as attainment or unclassifiable under § 107(d)(1)(C) of the federal Clean Air Act for the pollutant on the date of its complete application under this article or 40 CFR 52.21; and

(2) In the case of a major stationary source, the pollutant would be emitted in significant amounts, or, in the case of a major modification, there would be a significant net emissions increase of the pollutant.

d. Any minor source baseline date established originally for the TSP increments shall remain in effect and shall apply for purposes of determining the amount of available PM₁₀ increments, except that the board may rescind any such minor source baseline date where it can be shown, to the satisfaction of the board, that the emissions increase from the major stationary source, or the net emissions increase from the major modification, responsible for triggering that date did not result in a significant amount of PM₁₀ emissions.

"Begin actual construction" means, in general, initiation of physical on-site construction activities on an emissions unit that are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures. With respect to a change in method of operation, this term refers to those on-site activities other than preparatory activities that mark the initiation of the change.

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

"Building, structure, facility or installation" means all of the pollutant-emitting activities that belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control) except the activities of any vessel. Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same "Major Group" (i.e., that have the same first two-digit code) as described in the Standard Industrial Classification Manual (see 9VAC5-20-21).

"Clean coal technology" means any technology, including technologies applied at the precombustion, combustion, or post combustion stage, at a new or existing facility that will achieve significant reductions in air emissions of sulfur dioxide or oxides of nitrogen associated with the utilization of coal in the generation of electricity, or process steam that was not in widespread use as of November 15, 1990.

"Clean coal technology demonstration project" means a project using funds appropriated under the heading "Department of Energy-Clean Coal Technology," up to a total amount of $2,500,000,000 for commercial demonstration of clean coal technology, or similar projects funded through appropriations for EPA. The federal contribution for a qualifying project shall be at least 20% of the total cost of the demonstration project.

"Commence" as applied to construction of a major stationary source or major modification, means that the owner has all necessary preconstruction approvals or permits and either has:

a. Begun, or caused to begin, a continuous program of actual on-site construction of the source, to be completed within a reasonable time; or

b. Entered into binding agreements or contractual obligations, that cannot be canceled or modified without substantial loss to the owner, to undertake a program of actual construction of the source, to be completed within a reasonable time.

"Complete" means, in reference to an application for a permit, that the application contains all of the information necessary for processing the application and the provisions of § 10.1-1321.1 of the Virginia Air Pollution Control Law have been met. Designating an application complete for the purposes of permit processing does not preclude the board from requesting or accepting any additional information.

"Construction" means any physical change or change in the method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) that would result in a change in emissions.

"Continuous emissions monitoring system" or "CEMS" means all of the equipment that may be required to meet the data acquisition and availability requirements of this article, to sample, condition (if applicable), analyze, and provide a record of emissions on a continuous basis.

"Continuous emissions rate monitoring system" or "CERMS" means the total equipment required for the determination and recording of the pollutant mass emissions rate (in terms of mass per unit of time).

"Continuous parameter monitoring system" or "CPMS" means all of the equipment necessary to meet the data acquisition and availability requirements of this article, to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O₂ or CO₂ concentrations), and to record average operational parameter value(s) on a continuous basis.

"Electric utility steam generating unit" means any steam electric generating unit that is constructed for the purpose of supplying more than one-third of its potential electric output capacity and more than 25 MW electrical output to any utility power distribution system for sale. Any steam supplied to a steam distribution system for the purpose of providing steam to a steam-electric generator that would produce electrical energy for sale is also considered in determining the electrical energy output capacity of the affected facility.

"Emissions unit" means any part of a stationary source that emits or would have the potential to emit any regulated NSR pollutant and includes an electric utility steam generating unit. For purposes of this definition, there are two types of emissions units: (i) a new emissions unit is any emissions unit that is (or will be) newly constructed and that has existed for less than two years from the date such emissions unit first operated; and (ii) an existing emissions unit is any emissions unit that is not a new emissions unit.

"Enforceable as a practical matter" means that the permit contains emission limitations that are enforceable by the board or the department and meet the following criteria:

a. Are permanent;

b. Contain a legal obligation for the owner to adhere to the terms and conditions;

c. Do not allow a relaxation of a requirement of the implementation plan;

d. Are technically accurate and quantifiable;

e. Include averaging times or other provisions that allow at least monthly (or a shorter period if necessary to be consistent with the implementation plan) checks on compliance. This may include, but not be limited to, the following: compliance with annual limits on a rolling basis, monthly or shorter limits, and other provisions consistent with this article and other regulations of the board; and

f. Require a level of recordkeeping, reporting and monitoring sufficient to demonstrate compliance.

"Federal land manager" means, with respect to any lands in the United States, the secretary of the department with authority over such lands.

"Federally enforceable" means all limitations and conditions that are enforceable by the administrator and citizens under the federal Clean Air Act or that are enforceable under other statutes administered by the administrator. Federally enforceable limitations and conditions include, but are not limited to, the following:

a. Emission standards, alternative emission standards, alternative emission limitations, and equivalent emission limitations established pursuant to § 112 of the federal Clean Air Act as amended in 1990.

b. New source performance standards established pursuant to § 111 of the federal Clean Air Act, and emission standards established pursuant to § 112 of the federal Clean Air Act before it was amended in 1990.

c. All terms and conditions (unless expressly designated as not federally enforceable) in a federal operating permit, including any provisions that limit a source's potential to emit.

d. Limitations and conditions that are part of an implementation plan established pursuant to § 110, § 111(d) or § 129 of the federal Clean Air Act.

e. Limitations and conditions (unless expressly designated as not federally enforceable) that are part of a federal construction permit issued under 40 CFR 52.21 or a new source review permit issued under regulations approved by the EPA into the implementation plan.

f. Limitations and conditions (unless expressly designated as not federally enforceable) that are part of a state operating permit where the permit and the permit program pursuant to which it was issued meet all of the following criteria:

(1) The operating permit program has been approved by the EPA into the implementation plan under § 110 of the federal Clean Air Act;

(2) The operating permit program imposes a legal obligation that operating permit holders adhere to the terms and limitations of such permits and provides that permits that do not conform to the operating permit program requirements and the requirements of EPA's underlying regulations may be deemed not "federally enforceable" by EPA;

(3) The operating permit program requires that all emission limitations, controls, and other requirements imposed by such permits will be at least as stringent as any other applicable limitations and requirements contained in the implementation plan or enforceable under the implementation plan, and that the program may not issue permits that waive, or make less stringent, any limitations or requirements contained in or issued pursuant to the implementation plan, or that are otherwise "federally enforceable";

(4) The limitations, controls, and requirements in the permit in question are permanent, quantifiable, and otherwise enforceable as a practical matter; and

(5) The permit in question was issued only after adequate and timely notice and opportunity for comment by the EPA and the public.

g. Limitations and conditions in a regulation of the board or program that has been approved by the EPA under subpart E of 40 CFR Part 63 for the purposes of implementing and enforcing § 112 of the federal Clean Air Act.

h. Individual consent agreements that the EPA has legal authority to create.

"Federal operating permit" means a permit issued under the federal operating permit program.

"Federal operating permit program" means an operating permit system (i) for issuing terms and conditions for major stationary sources, (ii) established to implement the requirements of Title V of the federal Clean Air Act and associated regulations, and (iii) codified in Article 1 (9VAC5-80-50 et seq.), Article 2 (9VAC5-80-310 et seq.), Article 3 (9VAC5-80-360 et seq.), and Article 4 (9VAC5-80-710 et seq.) of this part.

"Fugitive emissions" means those emissions that could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

"High terrain" means any area having an elevation 900 feet or more above the base of the stack of a source.

"Indian governing body" means the governing body of any tribe, band, or group of Indians subject to the jurisdiction of the United States and recognized by the United States as possessing power of self-government.

"Indian reservation" means any federally recognized reservation established by treaty, agreement, executive order, or act of Congress.

"Innovative control technology" means any system of air pollution control that has not been adequately demonstrated in practice, but would have substantial likelihood of achieving greater continuous emissions reduction than any control system in current practice or of achieving at least comparable reductions at lower cost in terms of energy, economics, or nonair quality environmental impacts.

"Lowest achievable emission rate" or "LAER" is as defined in 9VAC5-80-2010 C.

"Locality particularly affected" means any locality that bears any identified disproportionate material air quality impact that would not be experienced by other localities.

"Low terrain" means any area other than high terrain.

"Major emissions unit" means (i) any emissions unit that emits or has the potential to emit 100 tons per year or more of the PAL pollutant in an attainment area; or (ii) any emissions unit that emits or has the potential to emit the PAL pollutant for nonattainment areas in an amount that is equal to or greater than the major source threshold for the PAL pollutant in subdivision a (1) of the definition of "major stationary source " in 9VAC5-80-2010 C.

"Major modification"

a. Means any physical change in or change in the method of operation of a major stationary source that would result in a significant emissions increase of a regulated NSR pollutant, and a significant net emissions increase of that pollutant from the major stationary source.

b. Any significant emissions increase from any emissions units or net emissions increase at a major stationary source that is significant for volatile organic compounds or NO_X shall be considered significant for ozone.

c. A physical change or change in the method of operation shall not include the following:

(1) Routine maintenance, repair and replacement.

(2) Use of an alternative fuel or raw material by reason of an order under § 2 (a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or by reason of a natural gas curtailment plant pursuant to the federal Power Act.

(3) Use of an alternative fuel by reason of any order or rule under § 125 of the federal Clean Air Act.

(4) Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste.

(5) Use of an alternative fuel or raw material by a stationary source that:

(a) The source was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally and state enforceable permit condition that was established after January 6, 1975, pursuant to 40 CFR 52.21 or this chapter; or

(b) The source is approved to use under any permit issued under 40 CFR 52.21 or this chapter; and.

(c) The owner demonstrates to the board that as a result of trial burns at the source or other sources or other sufficient data that the emissions resulting from the use of the alternative fuel or raw material supply are decreased.

(6) An increase in the hours of operation or in the production rate, unless such change is prohibited under any federally and state enforceable permit condition that was established after January 6, 1975, pursuant to 40 CFR 52.21 or this chapter.

(7) Any change in ownership at a stationary source.

(8) The installation, operation, cessation, or removal of a temporary clean coal technology demonstration project, provided that the project complies with:

(a) The applicable implementation plan, and

(b) Other requirements necessary to attain and maintain the ambient air quality standards during the project and after it is terminated.

(9) The installation or operation of a permanent clean coal technology demonstration project that constitutes repowering, provided that the project does not result in an increase in the potential to emit of any regulated pollutant emitted by the unit. This exemption shall apply on a pollutant-by-pollutant basis.

(10) The reactivation of a very clean coal-fired electric utility steam generating unit.

d. This definition shall not apply with respect to a particular regulated NSR pollutant when the major stationary source is complying with the requirements under 9VAC5-80-1865 for a PAL for that pollutant. Instead, the definition of "PAL major modification" shall apply.

"Major new source review (NSR) permit" means a permit issued under the major new source review program.

"Major new source review (major NSR) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation), (ii) established to implement the requirements of §§ 112, 165 and 173 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.) and Article 9 (9VAC5-80-2000 et seq.) of this part.

"Major stationary source"

a. Means:

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

(a) Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input.

(b) Coal cleaning plants (with thermal dryers).

(c) Kraft pulp mills.

(d) Portland cement plants.

(e) Primary zinc smelters.

(f) Iron and steel mill plants.

(g) Primary aluminum ore reduction plants.

(h) Primary copper smelters.

(i) Municipal incinerators capable of charging more than 250 tons of refuse per day.

(j) Hydrofluoric acid plants.

(k) Sulfuric acid plants.

(l) Nitric acid plants.

(m) Petroleum refineries.

(n) Lime plants.

(o) Phosphate rock processing plants.

(p) Coke oven batteries.

(q) Sulfur recovery plants.

(r) Carbon black plants (furnace process).

(s) Primary lead smelters.

(t) Fuel conversion plants.

(u) Sintering plants.

(v) Secondary metal production plants.

(w) Chemical process plants.

(x) Fossil fuel boilers (or combination of them) totaling more than 250 million British thermal units per hour heat input.

(y) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels.

(z) Taconite ore processing plants.

(aa) Glass fiber processing plants.

(bb) Charcoal production plants.

(2) Notwithstanding the stationary source size specified in subdivision a (1) of this definition, any stationary source that emits, or has the potential to emit, 250 tons per year or more of a regulated NSR pollutant; or

(3) Any physical change that would occur at a stationary source not otherwise qualifying under subdivision a (1) or a (2) of this definition as a major stationary source, if the change would constitute a major stationary source by itself.

b. A major stationary source that is major for volatile organic compounds or NO_X shall be considered major for ozone.

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

(1) Coal cleaning plants (with thermal dryers).

(2) Kraft pulp mills.

(3) Portland cement plants.

(4) Primary zinc smelters.

(5) Iron and steel mills.

(6) Primary aluminum ore reduction plants.

(7) Primary copper smelters.

(8) Municipal incinerators capable of charging more than 250 tons of refuse per day.

(9) Hydrofluoric, sulfuric, or nitric acid plants.

(10) Petroleum refineries.

(11) Lime plants.

(12) Phosphate rock processing plants.

(13) Coke oven batteries.

(14) Sulfur recovery plants.

(15) Carbon black plants (furnace process).

(16) Primary lead smelters.

(17) Fuel conversion plants.

(18) Sintering plants.

(19) Secondary metal production plants.

(20) Chemical process plants.

(21) Fossil-fuel boilers (or combination of them) totaling more than 250 million British thermal units per hour heat input.

(22) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels.

(23) Taconite ore processing plants.

(24) Glass fiber processing plants.

(25) Charcoal production plants.

(26) Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input.

(27) Any other stationary source category that, as of August 7, 1980, is being regulated under 40 CFR Parts 60 and 61.

"Minor new source review (NSR) permit" means a permit issued under the minor new source review program.

"Minor new source review (minor NSR) program" means a preconstruction review and permit program (i) for new stationary sources or modifications (physical changes or changes in the method of operation) which do not qualify for that are not subject to review under the major new source review program, (ii) established to implement the requirements of §§ 110(a)(2)(C) and 112 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 6 (9VAC5-80-1100 et seq.) of this part.

"Necessary preconstruction approvals or permits" means those permits required under NSR programs that are part of the applicable implementation plan.

"Net emissions increase"

a. Means, with respect to any regulated NSR pollutant emitted by a major stationary source, the amount by which the sum of the following exceeds zero:

(1) The increase in emissions from a particular physical change or change in the method of operation at a stationary source as calculated pursuant to 9VAC5-80-1605 G; and

(2) Any other increases and decreases in actual emissions at the major stationary source that are contemporaneous with the particular change and are otherwise creditable. Baseline actual emissions for calculating increases and decreases under this subdivision shall be determined as provided in the definition of "baseline actual emissions," except that subdivisions a (3) and b (4) of that definition shall not apply.

b. An increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if it occurs between:

(1) The date five years before construction on the particular change commences; and

(2) The date that the increase from the particular change occurs.

c. An increase or decrease in actual emissions is creditable only if (i) it occurs between the date five years before construction on the particular change commences and the date that the increase from the particular change occurs; and (ii) the board has not relied on it in issuing a permit for the source under this article (or the administrator under 40 CFR 52.21), which permit is in effect when the increase in actual emissions from the particular change occurs.

d. An increase or decrease in actual emissions of sulfur dioxide, particulate matter, or nitrogen oxides that occurs before the applicable minor source baseline date is creditable only if it is required to be considered in calculating the amount of maximum allowable increases remaining available.

e. An increase in actual emissions is creditable only to the extent that the new level of actual emissions exceeds the old level.

f. A decrease in actual emissions is creditable only to the extent that:

(1) The old level of actual emissions or the old level of allowable emissions, whichever is lower, exceeds the new level of actual emissions;

(2) It is enforceable as a practical matter at and after the time that actual construction on the particular change begins;

(3) It has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change.

g. An increase that results from a physical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.

h. Subdivision a of the definition of "actual emissions" shall not apply for determining creditable increases and decreases.

"New source review (NSR) permit" means a permit issued under the new source review program.

"New source review (NSR) program" means a preconstruction review and permit program (i) for new stationary sources or modifications (physical changes or changes in the method of operation); (ii) established to implement the requirements of §§ 110(a)(2)(C), 112 (relating to permits for hazardous air pollutants), 165 (relating to permits in prevention of significant deterioration areas), and 173 (relating to permits in nonattainment areas) of the federal Clean Air Act and associated regulations; and (iii) codified in Article 6 (9VAC5-80-1100 et seq.), Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.) and Article 9 (9VAC5-80-2000 et seq.) of this part.

"Plantwide applicability limitation (PAL)" means an emission limitation expressed in tons per year, for a pollutant at a major stationary source, that is enforceable as a practical matter and established sourcewide in accordance with 9VAC5-80-1865.

"PAL effective date" generally means the date of issuance of the PAL permit. However, the PAL effective date for an increased PAL is the date any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

"PAL effective period" means the period beginning with the PAL effective date and ending five years later.

"PAL major modification" means, notwithstanding the definitions for major modification and net emissions increase, any physical change in or change in the method of operation of the PAL source that causes it to emit the PAL pollutant at a level equal to or greater than the PAL.

"PAL permit" means the major NSR permit, the minor NSR permit, the state operating permit, or the federal operating permit issued by the board that establishes a PAL for a major stationary source.

"PAL pollutant" means the pollutant for which a PAL is established at a major stationary source.

"Potential to emit" means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment, and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is federally and state enforceable. Secondary emissions do not count in determining the potential to emit of a stationary source. For the purposes of actuals PALs, any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment, and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or the effect it would have on emissions is federally enforceable or enforceable as a practical matter by the state.

"Predictive emissions monitoring system" or "PEMS" means all of the equipment necessary to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O₂ or CO₂ concentrations), and calculate and record the mass emissions rate (for example, pounds per hour) on a continuous basis.

"Project" means a physical change in, or change in the method of operation of, an existing major stationary source.

"Projected actual emissions" means the maximum annual rate, in tons per year, at which an existing emissions unit is projected to emit a regulated NSR pollutant in any one of the five years (12-month period) following the date the unit resumes regular operation after the project, or in any one of the 10 years following that date, if the project involves increasing the emissions unit's design capacity or its potential to emit that regulated NSR pollutant and full utilization of the unit would result in a significant emissions increase or a significant net emissions increase at the major stationary source. In determining the projected actual emissions (before beginning actual construction), the owner of the major stationary source:

a. Shall consider all relevant information, including but not limited to, historical operational data, the company's own representations, the company's expected business activity and the company's highest projections of business activity, the company's filings with the state or federal regulatory authorities, and compliance plans under the approved implementation plan;

b. Shall include fugitive emissions to the extent quantifiable and emissions associated with startups, shutdowns, and malfunctions; and

c. Shall exclude, in calculating any increase in emissions that results from the particular project, that portion of the unit's emissions following the project that an existing unit could have emitted during the consecutive 24-month period used to establish the baseline actual emissions and that are also unrelated to the particular project, including any increased utilization due to product demand growth, provided such exclusion shall not reduce any calculated increases in emissions that are caused by, result from, or are related to the particular project; or

d. In lieu of using the method set out in subdivisions a through c of this definition, may elect to use the emissions unit's potential to emit, in tons per year.

"Reactivation of a very clean coal-fired electric utility steam generating unit" means any physical change or change in the method of operation associated with the commencement of commercial operations by a coal-fired utility unit after a period of discontinued operation where the unit:

a. Has not been in operation for the two-year period prior to the enactment of the federal Clean Air Act Amendments of 1990, and the emissions from such unit continue to be carried in the department's emissions inventory at the time of enactment;

b. Was equipped prior to shut-down with a continuous system of emissions control that achieves a removal efficiency for sulfur dioxide of no less than 85% and a removal efficiency for particulates of no less than 98%;

c. Is equipped with low-NOX burners prior to the time of commencement of operations following reactivation; and

d. Is otherwise in compliance with the requirements of the federal Clean Air Act.

"Reasonably available control technology" or "RACT" means the lowest emission limit that a particular source is capable of meeting by the application of control technology that is reasonably available, considering technological and economic feasibility.

"Regulated NSR pollutant" means:

a. Any pollutant for which an ambient air quality standard has been promulgated and any constituents or precursors for such pollutants identified by the administrator (e.g., volatile organic compounds and NO_X are precursors for ozone);

b. Any pollutant that is subject to any standard promulgated under § 111 of the federal Clean Air Act;

c. Any class I or II substance subject to a standard promulgated under or established by Title VI of the federal Clean Air Act; or

d. Any pollutant that otherwise is subject to regulation under the federal Clean Air Act; except that any or all hazardous air pollutants either listed in § 112 of the federal Clean Air Act or added to the list pursuant to § 112(b)(2), which have not been delisted pursuant to § 112(b)(3), are not regulated NSR pollutants unless the listed hazardous air pollutant is also regulated as a constituent or precursor of a general pollutant listed under § 108 of the federal Clean Air Act.

"Repowering" means:

a. Replacement of an existing coal-fired boiler with one of the following clean coal technologies: atmospheric or pressurized fluidized bed combustion, integrated gasification combined cycle, magnetohydrodynamics, direct and indirect coal-fired turbines, integrated gasification fuel cells, or as determined by the administrator, in consultation with the Secretary of Energy, a derivative of one or more of these technologies, and any other technology capable of controlling multiple combustion emissions simultaneously with improved boiler or generation efficiency and with significantly greater waste reduction relative to the performance of technology in widespread commercial use as of November 15, 1990.

b. Repowering shall also include any oil and/or gas-fired unit which has been awarded clean coal technology demonstration funding as of January 1, 1991, by the Department of Energy.

c. The board may give expedited consideration to permit applications for any source that satisfies the requirements of this definition and is granted an extension under § 409 of the federal Clean Air Act.

"Secondary emissions" means emissions that would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. For the purpose of this article, secondary emissions shall be specific, well defined, quantifiable, and affect the same general area as the stationary source or modification that causes the secondary emissions. Secondary emissions include emissions from any offsite support facility that would not be constructed or increase its emissions except as a result of the construction or operation of the major stationary source or major modification. Secondary emissions do not include any emissions that come directly from a mobile source, such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel.

"Significant" means:

a. In reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates:

	Pollutant	Emissions Rate
	Carbon Monoxide	100 tons per year (tpy)
	Nitrogen Oxides	40 tpy
	Sulfur Dioxide	40 tpy
	Particulate Matter (TSP)	25 tpy
	PM10	15 tpy
	PM2.5	10 tpy
	Ozone	40 tpy of volatile organic compounds or NOX
	Lead	0.6 tpy
	Fluorides	3 tpy
	Sulfuric Acid Mist	7 tpy
	Hydrogen Sulfide (H2S)	10 tpy
	Total Reduced Sulfur (including H2S)	10 tpy
	Reduced Sulfur Compounds (including H2S)	10 tpy
	Municipal waste combustor organics (measured as total tetra-through octa-chlorinated dibenzo-p-dioxins and dibenzofurans)	3.5 x 10-6 tpy
	Municipal waste combustor metals (measured as particulate matter)	15 tpy
	Municipal waste combustor acid gases (measured as the sum of SO2 and HCl)	40 tpy
	Municipal solid waste landfills emissions (measured as nonmethane organic compounds)	50 tpy

b. In reference to a net emissions increase or the potential of a source to emit a regulated NSR pollutant that subdivision a of this definition does not list, any emissions rate.

c. Notwithstanding subdivision a of this definition, any emissions rate or any net emissions increase associated with a major stationary source or major modification that would construct within 10 kilometers of a class I area, and have an impact on such area equal to or greater than 1 μg/m³ (24-hour average).

"Significant emissions increase" means, for a regulated NSR pollutant, an increase in emissions that is significant for that pollutant.

"Significant emissions unit" means an emissions unit that emits or has the potential to emit a PAL pollutant in an amount that is significant for that PAL pollutant, but less than the amount that would qualify the unit as a major emissions unit.

"Small emissions unit" means an emissions unit that emits or has the potential to emit the PAL pollutant in an amount less than the significant level for that PAL pollutant.

"State enforceable" means all limitations and conditions that are enforceable as a practical matter, including any regulation of the board, those requirements developed pursuant to 9VAC5-170-160, requirements within any applicable order or variance, and any permit requirements established pursuant to this chapter.

"State operating permit" means a permit issued under the state operating permit program.

"State operating permit program" means an operating permit program (i) for issuing limitations and conditions for stationary sources; (ii) promulgated to meet the EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for the EPA and public comment prior to issuance of the final permit, and practicable enforceability; and (iii) codified in Article 5 (9VAC5-80-800 et seq.) of this part.

"Stationary source" means any building, structure, facility, or installation that emits or may emit a regulated NSR pollutant.

"Temporary clean coal technology demonstration project" means a clean coal technology demonstration project that is operated for a period of five years or less, and that complies with the applicable implementation plan and other requirements necessary to attain and maintain the ambient air quality standards during the project and after it is terminated.

9VAC5-80-1625. General.

A. No owner or other person shall begin actual construction of any new major stationary source or major modification without first obtaining from the board a permit to construct and operate such source. The permit will state that the major stationary source or major modification shall meet all the applicable requirements of this article.

B. The requirements of this article apply to the construction of any new major stationary source or the major modification of any existing major stationary source, except as this article otherwise provides.

C. No owner or other person shall relocate any emissions unit from one stationary source to another without first obtaining a permit from the board to relocate the unit.

D. Prior to the decision of the board, all permit applications will be subject to a public comment period, a public hearing will be held as provided in 9VAC5-80-1775.

E. If the board and the owner make a mutual determination that it facilitates the efficient processing and issuing of permits for projects that are to be constructed concurrently, the board may combine the requirements of and the permits for emissions units within a stationary source subject to the major new source review program into one permit. Likewise the board may require that applications for permits for emissions units within a stationary source required by any provision of the major new source review program be combined into one application The board will take actions to combine permit terms and conditions as provided in 9VAC5-80-1915. Actions to combine permit terms and conditions involve relocating the terms and conditions contained in two or more permits issued to single stationary source to a single permit document. Actions to combine permit terms and conditions in and of themselves are not a mechanism for making changes to permits; such actions shall be taken under 9VAC5-80-1925 as explained in subsection F of this section.

F. The board may not incorporate the terms and conditions of a state operating permit, a minor new source review permit, or a PAL permit into a permit issued pursuant to this article The board will take actions to make changes to permit terms and conditions as provided in 9VAC5-80-1925. Nothing in this subsection is intended to imply that once an action has been taken to make a change to a permit, the resulting permit change may not be combined with other terms and conditions in a single permit document as provided in subsection E of this section.

G. All terms and conditions of any permit issued under this article shall be federally enforceable except those that are designated state-only enforceable under subdivision 1 of this subsection. Any term or condition that is not federally enforceable shall be designated as state-only enforceable as provided in subdivision 2 of this subsection.

1. A term or condition of any permit issued under this article shall not be federally enforceable if it is derived from or is designed to implement Article 2 (9VAC5-40-130 et seq.) of 9VAC5 Chapter 40 9VAC5-40 (Existing Stationary Sources), Article 2 (9VAC5-50-130 et seq.) of 9VAC5 Chapter 50 9VAC5-50 (New and Modified Stationary Sources), Article 4 (9VAC5-60-200 et seq.) of 9VAC5 Chapter 60 9VAC5-60 (Hazardous Air Pollutant Sources), or Article 5 (9VAC5-60-300) of 9VAC5 Chapter 60 9VAC5-60 (Hazardous Air Pollutant Sources).

2. Any term or condition of any permit issued under this article that is not federally enforceable shall be marked in the permit as state-only enforceable and shall only be enforceable by the board. Incorrectly designating a term or condition as state-only enforceable shall not provide a shield from federal enforcement of a term or condition that is legally federally enforceable.

H. Nothing in the regulations of the board shall be construed to prevent the board from granting permits for programs of construction or modification in planned incremental phases. In such cases, all net emissions increases from all emissions units covered by the program shall be added together for determining the applicability of this article.

9VAC5-80-1695. Exemptions.

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

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

a. Coal cleaning plants (with thermal dryers).

b. Kraft pulp mills.

c. Portland cement plants.

d. Primary zinc smelters.

e. Iron and steel mills.

f. Primary aluminum ore reduction plants.

g. Primary copper smelters.

h. Municipal incinerators capable of charging more than 250 tons of refuse per day.

i. Hydrofluoric acid plants.

j. Sulfuric acid plants.

k. Nitric acid plants.

l. Petroleum refineries.

m. Lime plants.

n. Phosphate rock processing plants.

o. Coke oven batteries.

p. Sulfur recovery plants.

q. Carbon black plants (furnace process).

r. Primary lead smelters.

s. Fuel conversion plants.

t. Sintering plants.

u. Secondary metal production plants.

v. Chemical process plants.

w. Fossil-fuel boilers (or combination of them) totaling more than 250 million British thermal units per hour heat input.

x. Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels.

y. Taconite ore processing plants.

z. Glass fiber processing plants.

aa. Charcoal production plants.

bb. Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input.

cc. Any other stationary source category which, as of August 7, 1980, is being regulated under 40 CFR Part 60 or 61; or

2. The source or modification is a portable stationary source that has previously received a permit under this article, and

a. The owner proposes to relocate the source and emissions of the source at the new location would be temporary;

b. The emissions from the source would not exceed its allowable emissions;

c. The emissions from the source would affect no class I area and no area where an applicable increment is known to be violated; and

d. Reasonable notice is given to the board prior to the relocation identifying the proposed new location and the probable duration of operation at the new location. Such notice shall be given to the board not less than 10 days in advance of the proposed relocation unless a different time duration is previously approved by the board.

B. The requirements of this article shall not apply to a major stationary source or major modification with respect to a particular pollutant if the owner demonstrates that, as to that pollutant, the source or modification is located in an area designated as nonattainment in 9VAC5-20-204.

C. The requirements of 9VAC5-80-1715, 9VAC5-80-1735, and 9VAC5-80-1755 shall not apply to a major stationary source or major modification with respect to a particular pollutant, if the allowable emissions of that pollutant from the source, or the net emissions increase of that pollutant from the modification:

1. Would affect no class I area and no area where an applicable increment is known to be violated, and

2. Would be temporary.

D. The requirements of 9VAC5-80-1715, 9VAC5-80-1735, and 9VAC5-80-1755 as they relate to any maximum allowable increase for a class II area shall not apply to a major modification at a stationary source that was in existence on March 1, 1978, if the net increase in allowable emissions of each regulated NSR pollutant from the modification after the application of best available control technology would be less than 50 tons per year.

E. The board may exempt a proposed major stationary source or major modification from the requirements of 9VAC5-80-1735 with respect to monitoring for a particular pollutant if:

1. The emissions increase of the pollutant from the new source or the net emissions increase of the pollutant from the modification would cause, in any area, air quality impacts less than the following amounts:

Carbon monoxide -- 575 μg/m³, 8-hour average

Nitrogen dioxide -- 14 μg/m³, annual average

Particulate matter -- 10 μg/m³ of PM₁₀, 24-hour average

Sulfur dioxide -- 13 μg/m³, 24-hour average

Ozone^*

Lead -- 0.1 μg/m³, 3-month average

Fluorides -- 0.25 μg/m³, 24-hour average

Total reduced sulfur -- 10 μg/m³, 1-hour average

Hydrogen sulfide -- 0.2 μg/m³, 1-hour average

Reduced sulfur compounds -- 10 μg/m³, 1-hour average; or

^*No de minimis air quality level is provided for ozone. However, any net increase of 100 tons per year or more of volatile organic compounds or NO_X subject to this article would be required to perform an ambient impact analysis including the gathering of ambient air quality data.

2. The concentrations of the pollutant in the area that the source or modification would affect are less than the concentrations listed in subdivision 1 of this subsection, or the pollutant is not listed in subdivision 1 of this subsection.

F. The requirements of this article shall not apply to a particular major stationary source with respect to the use of an alternative fuel or raw material if the following conditions are met:

1. The owner demonstrates to the board that, as a result of trial burns at the owner’s facility or other facilities or other sufficient data, the emissions resulting from the use of the alternative fuel or raw material supply are decreased. No demonstration will be required for the use of processed animal fat, processed fish oil, processed vegetable oil, distillate oil, or any mixture thereof in place of the same quantity of residual oil to fire industrial boilers.

2. The use of an alternative fuel or raw material would not be subject to review under this article as a major modification.

9VAC5-80-1915. Actions to combine permit terms and conditions.

A. General requirements for actions to combine permit terms and conditions are as follows:

1. Except as provided in subdivision 3 of this subsection, the board may take actions to combine permit terms and conditions as provided under subsections B through E of this section.

2. Requests to combine permit terms and conditions may be initiated by the permittee or by the board.

3. Under no circumstances may an action to combine permit terms and conditions be used for any of the following:

a. To combine the terms and conditions of (i) a federal operating permit, (ii) a PAL permit, or (iii) any permit that is or will be part of the implementation plan.

b. To take an action to issue a permit or change a permit for the fabrication, erection, installation, demolition, relocation, addition, replacement, or modification of an emissions unit that would result in a change in emissions that would otherwise (i) be subject to review under this article or (ii) require a permit or permit amendment under the new source review program.

c. To allow any stationary source or emissions unit to violate any federal requirement.

d. To take an action to issue a permit or change a permit for any physical change in or change in the method of operation of a major stationary source that is subject to the provisions in 9VAC5-80-1605 C (restrictions on relaxing enforceable emission limitations that the major stationary source used to avoid applicability of the major NSR program).

B. The board may take actions to combine the terms and conditions of state operating permits and new source review permits along with any changes to state operating permits and new source review permits.

C. If the board and the owner make a mutual determination that it facilitates improved compliance or the efficient processing and issuing of permits, the board may take an action to combine the terms and conditions of permits for emissions units within a stationary source into one or more permits. Likewise the board may require that applications for permits for emissions units within a stationary source required by any permit program be combined into one application.

D. Actions to combine the terms and conditions of permits are subject to the following conditions:

1. Each term or condition in the combined permit shall be accompanied by a statement that specifies and references the origin (enabling permit program) of, along with the regulatory or any other authority for, the term or condition.

2. Each term or condition in the combined permit shall be accompanied by a statement that specifies the effective date of the term or condition.

3. Each term or condition in the combined permit shall be identified by its original designation (i.e., state-only enforceable or federally and state enforceable) consistent with the applicable enforceability designation of the term or condition in the contributing permit.

4. Except as provided in subsection E of this section, all terms and conditions in the contributing permits shall be included in the combined permit without change. The combined permit will supersede the contributing permits, which will no longer be effective.

E. Actions to make changes to permit terms and conditions as may be necessary to facilitate actions to combine permit terms and conditions may be accomplished in accordance with the minor amendment procedures (unless specified otherwise in this section) of the enabling permit program (i.e., the permit program that is the origin of the term or condition), subject to the following conditions:

1. Updates to regulatory or other authorities may be accomplished in accordance with the administrative amendment procedures of the enabling permit program.

2. If two or more terms or conditions apply to the same emissions unit or emissions units and are substantively equivalent, the more restrictive of the duplicate terms or conditions may be retained and the less restrictive one removed, subject to the provisions of subdivision 4 of this subsection.

3. If two or more similar terms or conditions apply to the same emissions unit or emissions units and one is substantively more restrictive than the others, the more restrictive of the terms or conditions shall be retained, regardless of whether the less restrictive terms or conditions are removed. If the less restrictive of the similar terms or conditions is removed, the provisions of subdivision 4 of this subsection apply.

4. The removal of similar terms or conditions from contributing permits is subject to the following conditions:

a. If any one of the terms or conditions removed is federally and state enforceable, the more restrictive term or condition that is retained in the combined permit shall be federally and state enforceable.

b. If any one of the terms or conditions originates in a permit subject to a major NSR program, that major NSR program shall become the effective enabling permit program for the more restrictive term or condition that is retained in the combined permit. If more than one major NSR program is the basis for a term or condition, all of the applicable major NSR programs shall be the enabling permit program for that term or condition.

c. The regulatory basis for all of the similar terms or conditions that are removed shall be included in the reference for the term or condition that is retained.

9VAC5-80-1925. Changes to Actions to change permits.

A. The general requirements for making actions to make changes to permits issued under this article are as follows:

1. Except as provided in subdivision 3 of this subsection changes to a permit issued under this article shall be made as specified under subsections B and C of this section and 9VAC5-80-1935 through 9VAC5-80-1965.

2. Changes to a permit issued under this article may be initiated by the permittee as specified in subsection B of this section or by the board as specified in subsection C of this section.

3. Changes to a permit issued under this article and incorporated into a permit issued under Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part shall be made as specified in Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part.

4. Under no circumstances may a permit issued under this article be changed in order to (i) incorporate the terms and conditions necessary to implement any provision of the new source review program for a project that qualifies as a modification under the new source review program or (ii) incorporate the terms and conditions necessary to implement any provision of the new source review program for a PAL permit.

B. The requirements for changes initiated by the permittee are as follows:

1. The permittee may initiate a change to a permit by submitting a written request to the board for an administrative permit amendment, a minor permit amendment or a significant permit amendment. The requirements for these permit changes can be found in 9VAC5-80-1935 through 9VAC5-80-1955.

2. A request for a change by a permittee shall include a statement of the reason for the proposed change.

C. The board may initiate a change to a permit through the use of permit reopenings as specified in 9VAC5-80-1965.

9VAC5-80-1935. Administrative permit amendments.

A. Administrative permit amendments shall be required used for and limited to the following:

1. Correction of typographical or any other error, defect or irregularity which does not substantially affect the permit.

2. Identification of a change in the name, address, or phone number of any person identified in the permit, or of a similar minor administrative change at the source.

3. Change in ownership or operational control of a source where the board determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the board and the requirements of 9VAC5-80-2170 have been fulfilled.

B. The administrative permit amendment procedures are as follows:

1. The board will normally take final action on a request for an administrative permit amendment no more than 60 days from receipt of the request.

2. The board will incorporate the changes without providing notice to the public under 9VAC5-80-1775. However, any such permit revisions shall be designated in the permit amendment as having been made pursuant to this section.

3. The owner may implement the changes addressed in the request for an administrative amendment immediately upon submittal of the request.

9VAC5-80-1945. Minor permit amendments.

A. Minor permit amendment procedures shall be used only for those permit amendments that meet all of the following criteria:

1. Do not violate any applicable federal requirement.

2. Do not involve significant changes to existing monitoring, reporting, or recordkeeping requirements that would make the permit requirements less stringent, such as a change to the method of monitoring to be used, a change to the method of demonstrating compliance or a relaxation of reporting or recordkeeping requirements.

3. Do not require or change a case-by-case determination of an emission emissions limitation or other standard requirement.

4. Do not seek to establish or change a permit term or condition (i) for which there is no corresponding underlying applicable regulatory requirement and (ii) that the source has assumed to avoid an applicable regulatory requirement to which the source would otherwise be subject. Such terms and conditions include, but are not limited to, an emissions cap assumed to avoid classification as a modification under the new source review program.

5. Are not required to be processed as a significant amendment under 9VAC5-80-1955; or as an administrative permit amendment under 9VAC5-80-1935.

B. Notwithstanding subsection A of this section, minor permit amendment procedures may be used for permit amendments that meet any of the following criteria:

1. Involve the use of economic incentives, emissions trading, and other similar approaches, to the extent that such minor permit amendment procedures are explicitly provided for in a regulation of the board or a federally-approved program.

2. Require new or more frequent monitoring or reporting by the permittee.

3. Designate any term or permit condition that meets the criteria in 9VAC5-80-1625 G 1 as state-only enforceable as provided in 9VAC5-80-1625 G 2 for any permit issued under this article or any regulation from which this article is derived.

C. Minor permit amendment procedures may be used for permit amendments involving the rescission of a provision of a permit if the board and the owner make a mutual determination that the provision is rescinded because all of the underlying statutory or regulatory requirements (i) upon which the provision is based or (ii) that necessitated inclusion of the provision are no longer applicable. In order for the underlying statutory or regulatory requirements to be considered no longer applicable, the provision of the permit that is being rescinded must not cover a regulated NSR pollutant.

D. A request for the use of minor permit amendment procedures shall include all of the following: 1. A a description of the change, the emissions resulting from the change, and any new applicable regulatory requirements that will apply if the change occurs. 2. A, along with a request that such procedures be used. The applicant may, at the applicant’s discretion, include a suggested proposed permit amendment.

E. The public participation requirements of 9VAC5-80-1775 shall not extend to minor permit amendments.

F. Normally within 90 days of receipt by the board of a complete request under minor permit amendment procedures, the board will do one of the following:

1. Issue the permit amendment as proposed.

2. Deny the permit amendment request.

3. Determine that the requested amendment does not meet the minor permit amendment criteria and should be reviewed under the significant amendment procedures.

G. The requirements for making changes are as follows:

1. The owner may make the change proposed in the minor permit amendment request immediately after the request is filed.

2. After the change under subdivision 1 of this subsection is made, and until the board takes any of the actions specified in subsection F of this section, the source shall comply with both the applicable regulatory requirements governing the change and the proposed permit terms and conditions amendment.

3. During the time period specified in subdivision 2 of this subsection, the owner need not comply with the existing permit terms and conditions the owner seeks to modify if the applicant has submitted a proposed permit amendment. However, if the owner fails to comply with the proposed permit terms and conditions during this time period, the existing permit terms and conditions the owner seeks to modify may be enforced against the owner.

9VAC5-80-1955. Significant amendment procedures.

A. The criteria for use of significant amendment procedures are as follows:

1. Significant amendment procedures shall be used for requesting permit amendments that do not qualify as minor permit amendments under 9VAC5-80-1945 or as administrative amendments under 9VAC5-80-1935.

2. Significant amendment procedures shall be used for those permit amendments that meet any of the following criteria:

a. Involve significant changes to existing monitoring, reporting, or recordkeeping requirements that would make the permit requirements less stringent, such as a change to the method of monitoring to be used, a change to the method of demonstrating compliance or a relaxation of reporting or recordkeeping requirements.

b. Require or change a case-by-case determination of an emission emissions limitation or other standard requirement.

c. Seek to establish or change a permit term or condition (i) for which there is no corresponding underlying applicable regulatory requirement and (ii) that the source has assumed to avoid an applicable regulatory requirement to which the source would otherwise be subject. Such terms and conditions include, but are not limited to, an emissions cap assumed to avoid classification as a modification under the new source review program.

B. A request for a significant permit amendment shall include a description of the change, the emissions resulting from the change, and any new applicable regulatory requirements that will apply if the change occurs. The applicant may, at the applicant's discretion, include a suggested draft permit amendment.

C. The provisions of 9VAC5-80-1775 shall apply to requests made under this section.

D. The board will normally take final action on significant permit amendments within 180 days after receipt of a complete request, except in cases where direct consideration of the request by the board is granted pursuant to 9VAC5-80-25. The board may extend this time period if additional information is needed.

E. The owner shall not make the change applied for in the significant amendment request until the amendment is approved by the board under subsection D of this section.

9VAC5-80-1965. Reopening for cause.

A. A permit may be reopened and amended under any of the following situations:

1. Additional regulatory requirements become applicable to the emissions units covered by the permit after a permit is issued but prior to commencement of construction.

2. The board determines that the permit contains a material mistake or that inaccurate statements were made in establishing the emissions standards or other terms or conditions of the permit.

3. The board determines that the permit must be amended to assure compliance with the applicable regulatory requirements or that the terms and conditions of the permit are not sufficient to meet all of the standards and requirements contained in this article.

B. Proceedings to reopen and reissue a permit shall follow the same procedures as apply to initial permit issuance and shall affect only those parts of the permit for which cause to reopen exists. Such reopening shall be made as expeditiously as practicable.

C. Reopenings shall not be initiated before a notice of such intent is provided to the source by the board at least 30 days in advance of the date that the permit is to be reopened, except that the board may provide a shorter time period in the case of an emergency.

9VAC5-80-2010. Definitions.

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

B. For the purpose of this article, 9VAC5-50-270 and any related use, the words or terms shall have the meanings given them in subsection C of this section.

C. Terms defined.

"Actual emissions" means the actual rate of emissions of a regulated NSR pollutant from an emissions unit, as determined in accordance with subdivisions a through c of this definition, except that this definition shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a PAL under 9VAC5-80-2144. Instead, the definitions of "projected actual emissions" and "baseline actual emissions" shall apply for those purposes.

a. In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a consecutive 24-month period which precedes the particular date and which is representative of normal source operation. The board will allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

b. The board may presume that the source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit.

c. For any emissions unit that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.

"Actuals PAL for a major stationary source" means a PAL based on the baseline actual emissions of all emissions units at the source, that emit or have the potential to emit the PAL pollutant.

"Administrator" means the administrator of the U.S. Environmental Protection Agency (EPA) or an authorized representative.

"Allowable emissions" means the emissions rate of a stationary source calculated using the maximum rated capacity of the source (unless the source is subject to federally and state enforceable limits which restrict the operating rate, or hours of operation, or both) and the most stringent of the following:

a. The applicable standards set forth in 40 CFR Parts 60, 61 and 63;

b. Any applicable implementation plan emissions limitation including those with a future compliance date; or

c. The emissions limit specified as a federally and state enforceable permit condition, including those with a future compliance date.

For the purposes of actuals PALs, "allowable emissions" shall also be calculated considering any emission limitations that are enforceable as a practical matter on the emissions unit's potential to emit.

"Applicable federal requirement" means all of, but not limited to, the following as they apply to emissions units in a source subject to this article (including requirements that have been promulgated or approved by the administrator through rulemaking at the time of permit issuance but have future-effective compliance dates):

a. Any standard or other requirement provided for in an implementation plan established pursuant to § 110 or § 111(d) of the federal Clean Air Act, including any source-specific provisions such as consent agreements or orders.

b. Any limit or condition in any construction permit issued under the new source review program or in any operating permit issued pursuant to the state operating permit program.

c. Any emission standard, alternative emission standard, alternative emission limitation, equivalent emission limitation or other requirement established pursuant to § 112 or § 129 of the federal Clean Air Act as amended in 1990.

d. Any new source performance standard or other requirement established pursuant to § 111 of the federal Clean Air Act, and any emission standard or other requirement established pursuant to § 112 of the federal Clean Air Act before it was amended in 1990.

e. Any limitations and conditions or other requirement in a Virginia regulation or program that has been approved by EPA under subpart E of 40 CFR Part 63 for the purposes of implementing and enforcing § 112 of the federal Clean Air Act.

f. Any requirement concerning accident prevention under § 112(r)(7) of the federal Clean Air Act.

g. Any compliance monitoring requirements established pursuant to either § 504(b) or § 114(a)(3) of the federal Clean Air Act.

h. Any standard or other requirement for consumer and commercial products under § 183(e) of the federal Clean Air Act.

i. Any standard or other requirement for tank vessels under § 183(f) of the federal Clean Air Act.

j. Any standard or other requirement in 40 CFR Part 55 to control air pollution from outer continental shelf sources.

k. Any standard or other requirement of the regulations promulgated to protect stratospheric ozone under Title VI of the federal Clean Air Act, unless the administrator has determined that such requirements need not be contained in a permit issued under this article.

l. With regard to temporary sources subject to 9VAC5-80-130, (i) any ambient air quality standard, except applicable state requirements, and (ii) requirements regarding increments or visibility as provided in Article 8 (9VAC5-80-1605 et seq.) of this part.

"Baseline actual emissions" means the rate of emissions, in tons per year, of a regulated NSR pollutant, as determined in accordance with the following:

a. For any existing electric utility steam generating unit, baseline actual emissions means the average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-month period selected by the owner within the five-year period immediately preceding when the owner begins actual construction of the project. The board may allow the use of a different time period upon a determination that it is more representative of normal source operation.

(1) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.

(2) The average rate shall be adjusted downward to exclude any noncompliant emissions that occurred while the source was operating above any emission limitation that was legally enforceable during the consecutive 24-month period.

(3) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period shall be used to determine the baseline actual emissions for the emissions units being changed. The same consecutive 24-month period shall be used for each different regulated NSR pollutant unless the owner can demonstrate to the satisfaction of the board that a different consecutive 24-month period for a different pollutant or pollutants is more appropriate due to extenuating circumstances.

(4) The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by subdivision a (2) of this definition.

b. For an existing emissions unit other than an electric utility steam generating unit, baseline actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner within the five-year period immediately preceding either the date the owner begins actual construction of the project, or the date a complete permit application is received by the board for a permit required either under this section or under a plan approved by the administrator, whichever is earlier, except that the five-year period shall not include any period earlier than November 15, 1990. The board will allow the use of a different time period upon a determination that it is more representative of normal source operation.

(1) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.

(2) The average rate shall be adjusted downward to exclude any noncompliant emissions that occurred while the source was operating above any emission limitation that was legally enforceable during the consecutive 24-month period.

(3) The average rate shall be adjusted downward to exclude any emissions that would have exceeded an emission limitation with which the source shall currently comply, had such source been required to comply with such limitations during the consecutive 24-month period. However, if an emission limitation is part of a maximum achievable control technology standard that the administrator proposed or promulgated under 40 CFR Part 63, the baseline actual emissions need only be adjusted if the state has taken credit for such emissions reductions in an attainment demonstration or maintenance plan consistent with the requirements of 9VAC5-80-2120 K.

(4) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period shall be used to determine the baseline actual emissions for the emissions units being changed. The same consecutive 24-month period shall be used for each different regulated NSR pollutant unless the owner can demonstrate to the satisfaction of the board that a different consecutive 24-month period for a different pollutant or pollutants is more appropriate due to extenuating circumstances.

(5) The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by subdivisions b (2) and b (3) of this definition.

c. For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase that will result from the initial construction and operation of such unit shall equal zero; and thereafter, for all other purposes, shall equal the unit's potential to emit.

d. For a PAL for a major stationary source, the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in subdivision a of this definition, for other existing emissions units in accordance with the procedures contained in subdivision b of this definition, and for a new emissions unit in accordance with the procedures contained in subdivision c of this definition.

"Begin actual construction" means, in general, initiation of physical on-site construction activities on an emissions unit which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures. With respect to a change in method of operation, this term refers to those on-site activities other than preparatory activities which mark the initiation of the change.

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

"Building, structure, facility, or installation" means all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control) except the activities of any vessel. Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same "major group" (i.e., which have the same two-digit code) as described in the "Standard Industrial Classification Manual," as amended by the supplement (see 9VAC5-20-21).

"Clean coal technology" means any technology, including technologies applied at the precombustion, combustion, or post-combustion stage, at a new or existing facility that will achieve significant reductions in air emissions of sulfur dioxide or nitrogen oxides associated with the utilization of coal in the generation of electricity, or process steam that was not in widespread use as of November 15, 1990.

"Clean coal technology demonstration project" means a project using funds appropriated under the heading "Department of Energy-Clean Coal Technology," up to a total amount of $2,500,000,000 for commercial demonstration of clean coal technology, or similar projects funded through appropriations for the U.S. EPA. The federal contribution for a qualifying project shall be at least 20% of the total cost of the demonstration project.

"Commence," as applied to construction of a major stationary source or major modification, means that the owner has all necessary preconstruction approvals or permits and either has:

a. Begun, or caused to begin, a continuous program of actual on-site construction of the source, to be completed within a reasonable time; or

b. Entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner, to undertake a program of actual construction of the source, to be completed within a reasonable time.

"Complete application" means that the application contains all the information necessary for processing the application and the provisions of § 10.1-1321.1 of the Virginia Air Pollution Control Law have been met. Designating an application complete for purposes of permit processing does not preclude the board from requesting or accepting additional information.

"Construction" means any physical change or change in the method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) that would result in a change in actual emissions.

"Continuous emissions monitoring system (CEMS)" means all of the equipment that may be required to meet the data acquisition and availability requirements of this section, to sample, condition (if applicable), analyze, and provide a record of emissions on a continuous basis.

"Continuous emissions rate monitoring system (CERMS)" means the total equipment required for the determination and recording of the pollutant mass emissions rate (in terms of mass per unit of time).

"Continuous parameter monitoring system (CPMS)" means all of the equipment necessary to meet the data acquisition and availability requirements of this section, to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O₂ or CO₂ concentrations), and to record average operational parameter values on a continuous basis.

"Electric utility steam generating unit" means any steam electric generating unit that is constructed for the purpose of supplying more than one-third of its potential electric output capacity and more than 25 megawatt electrical output to any utility power distribution system for sale. Any steam supplied to a steam distribution system for the purpose of providing steam to a steam-electric generator that would produce electrical energy for sale is also considered in determining the electrical energy output capacity of the affected facility.

"Emissions cap" means any limitation on the rate of emissions of any air pollutant from one or more emissions units established and identified as an emissions cap in any permit issued pursuant to the new source review program or operating permit program.

"Emissions unit" means any part of a stationary source which emits or would have the potential to emit any regulated NSR pollutant and includes an electric steam generating unit. For purposes of this article, there are two types of emissions units: (i) a new emissions unit is any emissions unit that is (or will be) newly constructed and that has existed for less than two years from the date such emissions unit first operated; and (ii) an existing emissions unit is any emissions unit that is not a new emissions unit.

"Enforceable as a practical matter" means that the permit contains emission limitations that are enforceable by the board or the department and meet the following criteria:

a. Are permanent;

b. Contain a legal obligation for the owner to adhere to the terms and conditions;

c. Do not allow a relaxation of a requirement of the implementation plan;

d. Are technically accurate and quantifiable;

e. Include averaging times or other provisions that allow at least monthly (or a shorter period if necessary to be consistent with the implementation plan) checks on compliance. This may include, but not be limited to, the following: compliance with annual limits in a rolling basis, monthly or shorter limits, and other provisions consistent with this article and other regulations of the board; and

f. Require a level of recordkeeping, reporting and monitoring sufficient to demonstrate compliance.

"Federal land manager" means, with respect to any lands in the United States, the secretary of the department with authority over such lands.

"Federally enforceable" means all limitations and conditions which are enforceable by the administrator and citizens under the federal Clean Air Act or that are enforceable under other statutes administered by the administrator. Federally enforceable limitations and conditions include, but are not limited to the following:

a. Emission standards, alternative emission standards, alternative emission limitations, and equivalent emission limitations established pursuant to § 112 of the federal Clean Air Act as amended in 1990.

b. New source performance standards established pursuant to § 111 of the federal Clean Air Act, and emission standards established pursuant to § 112 of the federal Clean Air Act before it was amended in 1990.

c. All terms and conditions (unless expressly designated as not federally enforceable) in a federal operating permit, including any provisions that limit a source's potential to emit.

d. Limitations and conditions that are part of an implementation plan established pursuant to § 110, § 111(d), or § 129 of the federal Clean Air Act.

e. Limitations and conditions (unless expressly designated as not federally enforceable) that are part of a federal construction permit issued under 40 CFR 52.21 or any construction permit issued under regulations approved by EPA into the implementation plan.

f. Limitations and conditions (unless expressly designated as not federally enforceable) that are part of a state operating permit where the permit and the permit program pursuant to which it was issued meet all of the following criteria:

(1) The operating permit program has been approved by the EPA into the implementation plan under § 110 of the federal Clean Air Act.

(2) The operating permit program imposes a legal obligation that operating permit holders adhere to the terms and limitations of such permits and provides that permits that do not conform to the operating permit program requirements and the requirements of EPA's underlying regulations may be deemed not "federally enforceable" by EPA.

(3) The operating permit program requires that all emission limitations, controls, and other requirements imposed by such permits will be at least as stringent as any other applicable limitations and requirements contained in the implementation plan or enforceable under the implementation plan, and that the program may not issue permits that waive, or make less stringent, any limitations or requirements contained in or issued pursuant to the implementation plan, or that are otherwise "federally enforceable."

(4) The limitations, controls, and requirements in the permit in question are permanent, quantifiable, and otherwise enforceable as a practical matter.

(5) The permit in question was issued only after adequate and timely notice and opportunity for comment by the EPA and the public.

g. Limitations and conditions in a regulation of the board or program that has been approved by EPA under subpart E of 40 CFR Part 63 for the purposes of implementing and enforcing § 112 of the federal Clean Air Act.

h. Individual consent agreements that EPA has legal authority to create.

"Federal operating permit" means a permit issued under the federal operating permit program.

"Federal operating permit program" means an operating permit system (i) for issuing terms and conditions for major stationary sources, (ii) established to implement the requirements of Title V of the federal Clean Air Act and associated regulations, and (iii) codified in Article 1 (9VAC5-80-50 et seq.), Article 2 (9VAC5-80-310 et seq.), Article 3 (9VAC5-80-360 et seq.), and Article 4 (9VAC5-80-710 et seq.) of this part.

"Fugitive emissions" means those emissions that could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

"Lowest achievable emissions rate (LAER)" means for any source, the more stringent rate of emissions based on the following:

a. The most stringent emissions limitation which is contained in the implementation plan of any state for such class or category of stationary source, unless the owner of the proposed stationary source demonstrates that such limitations are not achievable; or

b. The most stringent emissions limitation which is achieved in practice by such class or category of stationary sources. This limitation, when applied to a modification, means the lowest achievable emissions rate for the new or modified emissions units within the stationary source. In no event shall the application of this term permit a proposed new or modified stationary source to emit any pollutant in excess of the amount allowable under an applicable new source standard of performance.

"Major emissions unit" means (i) any emissions unit that emits or has the potential to emit 100 tons per year or more of the PAL pollutant in an attainment area; or (ii) any emissions unit that emits or has the potential to emit the PAL pollutant in an amount that is equal to or greater than the major source threshold for the PAL pollutant for nonattainment areas in subdivision a (1) of the definition of "major stationary source."

"Major modification"

a. Means any physical change in or change in the method of operation of a major stationary source that would result in (i) a significant emissions increase of a regulated NSR pollutant; and (ii) a significant net emissions increase of that pollutant from the source.

b. Any significant emissions increase from any emissions units or net emissions increase at a source that is considered significant for volatile organic compounds shall be considered significant for ozone.

c. A physical change or change in the method of operation shall not include the following:

(1) Routine maintenance, repair and replacement.

(2) Use of an alternative fuel or raw material by reason of an order under § 2 (a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or by reason of a natural gas curtailment plan pursuant to the Federal Power Act.

(3) Use of an alternative fuel by reason of an order or rule § 125 of the federal Clean Air Act.

(4) Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste.

(5) Use of an alternative fuel or raw material by a stationary source which that:

(a) The source was capable of accommodating before December 21, 1976, unless such change would be prohibited under any federally and state enforceable permit condition which was established after December 21, 1976, pursuant to 40 CFR 52.21 or this chapter; or

(b) The source is approved to use under any permit issued under 40 CFR 52.21 or this chapter; and.

(c) The owner demonstrates to the board that as a result of trial burns at the source or other sources or other sufficient data that the emissions resulting from the use of the alternative fuel or raw material supply are decreased.

(6) An increase in the hours of operation or in the production rate, unless such change is prohibited under any federally and state enforceable permit condition which was established after December 21, 1976, pursuant to 40 CFR 52.21 or this chapter.

(7) Any change in ownership at a stationary source.

(8) The installation, operation, cessation, or removal of a temporary clean coal technology demonstration project, provided that the project complies with:

(a) The applicable implementation plan, and

(b) Other requirements necessary to attain and maintain the national ambient air quality standard during the project and after it is terminated.

d. This definition shall not apply with respect to a particular regulated NSR pollutant when the source is complying with the requirements under 9VAC5-80-2144 for a PAL for that pollutant. Instead, the definition for "PAL major modification" shall apply.

"Major new source review (NSR) permit" means a permit issued under the major new source review program.

"Major new source review (major NSR) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation), (ii) established to implement the requirements of §§ 112, 165 and 173 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.) and Article 9 (9VAC5-80-2000 et seq.) of this part.

"Major stationary source"

a. Means:

(1) Any stationary source of air pollutants which emits, or has the potential to emit, (i) 100 tons per year or more of a regulated NSR pollutant, (ii) 50 tons per year or more of volatile organic compounds or nitrogen oxides in ozone nonattainment areas classified as serious in 9VAC5-20-204, (iii) 25 tons per year or more of volatile organic compounds or nitrogen oxides in ozone nonattainment areas classified as severe in 9VAC5-20-204, or (iv) 100 tons per year or more of nitrogen oxides or 50 tons per year of volatile organic compounds in the Ozone Transport Region; or

(2) Any physical change that would occur at a stationary source not qualifying under subdivision a (1) of this definition as a major stationary source, if the change would constitute a major stationary source by itself.

b. A major stationary source that is major for volatile organic compounds shall be considered major for ozone.

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

(1) Coal cleaning plants (with thermal dryers).

(2) Kraft pulp mills.

(3) Portland cement plants.

(4) Primary zinc smelters.

(5) Iron and steel mills.

(6) Primary aluminum ore reduction plants.

(7) Primary copper smelters.

(8) Municipal incinerators (or combinations of them) capable of charging more than 250 tons of refuse per day.

(9) Hydrofluoric acid plants.

(10) Sulfuric acid plants.

(11) Nitric acid plants.

(12) Petroleum refineries.

(13) Lime plants.

(14) Phosphate rock processing plants.

(15) Coke oven batteries.

(16) Sulfur recovery plants.

(17) Carbon black plants (furnace process).

(18) Primary lead smelters.

(19) Fuel conversion plants.

(20) Sintering plants.

(21) Secondary metal production plants.

(22) Chemical process plants.

(23) Fossil-fuel boilers (or combination of them) totaling more than 250 million British thermal units per hour heat input.

(24) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels.

(25) Taconite ore processing plants.

(26) Glass fiber manufacturing plants.

(27) Charcoal production plants.

(28) Fossil fuel steam electric plants of more than 250 million British thermal units per hour heat input.

(29) Any other stationary source category which, as of August 7, 1980, is being regulated under 40 CFR Part 60, 61 or 63.

"Minor new source review (NSR) permit" means a permit issued under the minor new source review program.

"Minor new source review (minor NSR) program" means a preconstruction review and permit program (i) for new stationary sources or modifications (physical changes or changes in the method of operation) that do not qualify for are not subject to review under the major new source review program, (ii) established to implement the requirements of §§ 110(a)(2)(C) and 112 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 6 (9VAC5-80-1100 et seq.) of this part.

"Necessary preconstruction approvals or permits" means those permits required under the NSR program that are part of the applicable implementation plan.

"Net emissions increase"

a. Means, with respect to any regulated NSR pollutant emitted by a major stationary source, the amount by which the sum of the following exceeds zero:

(1) The increase in emissions from a particular physical change or change in the method of operation at a stationary source as calculated pursuant to 9VAC5-80-2000 H; and

(2) Any other increases and decreases in actual emissions at the major stationary source that are contemporaneous with the particular change and are otherwise creditable. Baseline actual emissions for calculating increases and decreases under this subdivision shall be determined as provided in the definition of "baseline actual emissions," except that subdivisions a (3) and b (4) of that definition shall not apply.

b. An increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if it occurs before the date that the increase from the particular change occurs. For sources located in ozone nonattainment areas classified as serious or severe in 9VAC5-20-204, an increase or decrease in actual emissions of volatile organic compounds or nitrogen oxides is contemporaneous with the increase from the particular change only if it occurs during a period of five consecutive calendar years which includes the calendar year in which the increase from the particular change occurs.

c. An increase or decrease in actual emissions is creditable only if:

(1) It occurs between the date five years before construction on the particular change commences and the date that the increase from the particular change occurs; and

(2) The board has not relied on it in issuing a permit for the source pursuant to this article which permit is in effect when the increase in actual emissions from the particular change occurs.

d. An increase in actual emissions is creditable only to the extent that the new level of actual emissions exceeds the old level.

e. A decrease in actual emissions is creditable only to the extent that:

(1) The old level of actual emissions or the old level of allowable emissions, whichever is lower, exceeds the new level of actual emissions;

(2) It is enforceable as a practical matter at and after the time that actual construction on the particular change begins;

(3) The board has not relied on it in issuing any permit pursuant to this chapter or the board has not relied on it in demonstrating attainment or reasonable further progress in the implementation plan; and

(4) It has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change.

f. An increase that results from a physical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.

g. Subdivision a of the definition of "actual emissions" shall not apply for determining creditable increases and decreases or after a change.

"New source review (NSR) permit" means a permit issued under the new source review program.

"New source review (NSR) program" means a preconstruction review and permit program (i) for new stationary sources or modifications (physical changes or changes in the method of operation); (ii) established to implement the requirements of §§ 110(a)(2)(C), 112 (relating to permits for hazardous air pollutants), 165 (relating to permits in prevention of significant deterioration areas), and 173 (relating to permits in nonattainment areas) of the federal Clean Air Act and associated regulations; and (iii) codified in Article 6 (9VAC5-80-1100 et seq.), Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.) and Article 9 (9VAC5-80-2000 et seq.) of this part.

"Nonattainment major new source review (NSR) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation), (ii) established to implement the requirements of § 173 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 9 (9VAC5-80-2000 et seq.) of this part. Any permit issued under such a program is a major NSR permit.

"Nonattainment pollutant" means, within a nonattainment area, the pollutant for which such area is designated nonattainment. For ozone nonattainment areas, the nonattainment pollutants shall be volatile organic compounds (including hydrocarbons) and nitrogen oxides.

"Ozone transport region" means the area established by § 184(a) of the federal Clean Air Act or any other area established by the administrator pursuant to § 176A of the federal Clean Air Act for purposes of ozone. For the purposes of this article, the Ozone Transport Region consists of the following localities: Arlington County, Fairfax County, Loudoun County, Prince William County, Stafford County, Alexandria City, Fairfax City, Falls Church City, Manassas City, and Manassas Park City.

"Plantwide applicability limitation (PAL)" means an emission limitation expressed in tons per year, for a pollutant at a major stationary source, that is enforceable as a practical matter and established sourcewide in accordance with 9VAC5-80-2144.

"PAL effective date" generally means the date of issuance of the PAL permit. However, the PAL effective date for an increased PAL is the date any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

"PAL effective period" means the period beginning with the PAL effective date and ending five years later.

"PAL major modification" means, notwithstanding the definitions for "major modification" and "net emissions increase," any physical change in or change in the method of operation of the PAL source that causes it to emit the PAL pollutant at a level equal to or greater than the PAL.

"PAL permit" means the major NSR permit, the minor NSR permit, the state operating permit, or the federal operating permit issued by the board that establishes a PAL for a major stationary source.

"PAL pollutant" means the pollutant for which a PAL is established at a major stationary source.

"Potential to emit" means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment, and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or the effect it would have on emissions is federally and state enforceable. Secondary emissions do not count in determining the potential to emit of a stationary source. For the purposes of actuals PALs, any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment, and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or the effect it would have on emissions is federally enforceable or enforceable as a practical matter by the state.

"Predictive emissions monitoring system (PEMS)" means all of the equipment necessary to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O₂ or CO₂ concentrations), and calculate and record the mass emissions rate (for example, pounds per hour) on a continuous basis.

"Prevention of significant deterioration (PSD) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation), (ii) established to implement the requirements of § 165 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 8 (9VAC5-80-1605 et seq.) of this part.

"Project" means a physical change in, or change in the method of operation of, an existing major stationary source.

"Projected actual emissions" means the maximum annual rate, in tons per year, at which an existing emissions unit is projected to emit a regulated NSR pollutant in any one of the five years (12-month period) following the date the unit resumes regular operation after the project, or in any one of the 10 years following that date, if the project involves increasing the emissions unit's design capacity or its potential to emit of that regulated NSR pollutant and full utilization of the unit would result in a significant emissions increase or a significant net emissions increase at the source. In determining the projected actual emissions before beginning actual construction, the owner shall:

a. Consider all relevant information, including but not limited to, historical operational data, the company's own representations, the company's expected business activity and the company's highest projections of business activity, the company's filings with the state or federal regulatory authorities, and compliance plans under the approved plan;

b. Include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions; and

c. Exclude, in calculating any increase in emissions that results from the particular project, that portion of the unit's emissions following the project that an existing unit could have emitted during the consecutive 24-month period used to establish the baseline actual emissions and that are also unrelated to the particular project, including any increased utilization due to product demand growth, provided such exclusion shall not reduce any calculated increases in emissions that are caused by, result from, or are related to the particular project; or

d. In lieu of using the method set out in subdivisions a through c of this definition, may elect to use the emissions unit's potential to emit, in tons per year, as defined under the definition of potential to emit.

"Public comment period" means a time during which the public shall have the opportunity to comment on the new or modified source permit application information (exclusive of confidential information), the preliminary review and analysis of the effect of the source upon the ambient air quality, and the preliminary decision of the board regarding the permit application.

"Reasonable further progress" means the annual incremental reductions in emissions of a given air pollutant (including substantial reductions in the early years following approval or promulgation of an implementation plan and regular reductions thereafter) which are sufficient in the judgment of the board to provide for attainment of the applicable ambient air quality standard within a specified nonattainment area by the attainment date prescribed in the implementation plan for such area.

"Regulated NSR pollutant" means any of the following:

a. Nitrogen oxides or any volatile organic compound;

b. Any pollutant for which an ambient air quality standard has been promulgated; or

c. Any pollutant that is a constituent or precursor of a general pollutant listed under subdivisions a and b of this definition, provided that a constituent or precursor pollutant may only be regulated under NSR as part of regulation of the general pollutant.

"Secondary emissions" means emissions which would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. For the purpose of this article, secondary emissions shall be specific, well defined, quantifiable, and affect the same general area as the stationary source or modification which causes the secondary emissions. Secondary emissions include emissions from any off-site support facility which would not be constructed or increase its emissions except as a result of the construction or operation of the major stationary source or major modification. Secondary emissions do not include any emissions which come directly from a mobile source, such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel.

"Significant" means, in reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates:

a. Ozone nonattainment areas classified as serious or severe in 9VAC5-20-204.

	POLLUTANT	EMISSIONS RATE
	Carbon Monoxide	100 tons per year (tpy)
	Nitrogen Oxides	25 tpy
	Sulfur Dioxide	40 tpy
	Particulate Matter	25 tpy
	Ozone	25 tpy of volatile organic compounds
	Lead	0.6 py

b. Other nonattainment areas.

	POLLUTANT	EMISSIONS RATE
	Carbon Monoxide	100 tons per year (tpy)
	Nitrogen Oxides	40 tpy
	Sulfur Dioxide	40 tpy
	Particulate Matter	25 tpy
	PM10	15 tpy
	PM2.5	10 tpy
	Ozone	40 tpy of volatile organic compounds
	Lead	0.6 tpy

"Significant emissions increase" means, for a regulated NSR pollutant, an increase in emissions that is significant for that pollutant.

"Significant emissions unit" means an emissions unit that emits or has the potential to emit a PAL pollutant in an amount that is equal to or greater than the significant level for that PAL pollutant, but less than the amount that would qualify the unit as a major emissions unit.

"Small emissions unit" means an emissions unit that emits or has the potential to emit the PAL pollutant in an amount less than the significant level for that PAL pollutant.

"State enforceable" means all limitations and conditions that are enforceable as a practical matter, including any regulation of the board, those requirements developed pursuant to 9VAC5-170-160, requirements within any applicable order or variance, and any permit requirements established pursuant to this chapter.

"State operating permit" means a permit issued under the state operating permit program.

"State operating permit program" means an operating permit program (i) for issuing limitations and conditions for stationary sources, (ii) promulgated to meet the EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for the EPA and public comment prior to issuance of the final permit, and practicable enforceability, and (iii) codified in Article 5 (9VAC5-80-800 et seq.) of this part.

"Stationary source" means any building, structure, facility, or installation which emits or may emit a regulated NSR pollutant.

"Synthetic minor" means a stationary source whose potential to emit is constrained by state-enforceable and federally enforceable limits, so as to place that stationary source below the threshold at which it would be subject to permit or other requirements governing major stationary sources in regulations of the board or in the federal Clean Air Act.

"Temporary clean coal technology demonstration project" means a clean coal technology demonstration project that is operated for a period of five years or less, and that complies with the applicable implementation plan and other requirements necessary to attain and maintain the national ambient air quality standards during the project and after it is terminated.

9VAC5-80-2020. General.

A. No owner or other person shall begin actual construction or modification of any new major stationary source or major modification without first obtaining from the board a permit to construct and operate such source. The permit will state that the major stationary source or major modification shall meet all the applicable requirements of this article.

B. No owner or other person shall relocate any emissions unit from one stationary source to another without first obtaining from the board a permit to relocate the unit.

C. If the board and the owner make a mutual determination that it facilitates the efficient processing and issuing of permits for projects that are to be constructed concurrently, the board may combine the requirements of and the permits for emissions units within a stationary source subject to the major new source review program into one permit. Likewise the board may require that applications for permits for emissions units within a stationary source required by any provision of the major new source review program be combined into one application The board will take actions to combine permit terms and conditions as provided in 9VAC5-80-2195. Actions to combine permit terms and conditions involve relocating the terms and conditions contained in two or more permits issued to single stationary source to a single permit document. Actions to combine permit terms and conditions in and of themselves are not a mechanism for making changes to permits; such actions shall be taken under 9VAC5-80-2200 as explained in subsection D of this section.

D. The board may not incorporate the terms and conditions of a state operating permit, a minor new source review permit, or a PAL permit into a permit issued pursuant to this article The board will take actions to make changes to permit terms and conditions as provided in 9VAC5-80-2200. Nothing in this subsection is intended to imply that once an action has been taken to make a change to a permit, the resulting permit change may not be combined with other terms and conditions in a single permit document as provided in subsection C of this section.

E. All terms and conditions of any permit issued under this article shall be federally enforceable except those that are designated state-only enforceable under subdivision 1 of this subsection. Any term or condition that is not federally enforceable shall be designated as state-only enforceable as provided in subdivision 2 of this subsection.

1. A term or condition of any permit issued under this article shall not be federally enforceable if it is derived from or is designed to implement Article 2 (9VAC5-40-130 et seq.) of 9VAC5 Chapter 40 9VAC5-40 (Existing Stationary Sources, Article 2 (9VAC5-50-130 et seq.) of 9VAC5 Chapter 50 9VAC5-50 (New and Modified Stationary Sources), Article 4 (9VAC5-60-200 et seq.) of 9VAC5 Chapter 60 9VAC5-60 (Hazardous Air Pollutant Sources), or Article 5 (9VAC5-60-300) of 9VAC5 Chapter 60 9VAC5-60 (Hazardous Air Pollutant Sources).

2. Any term or condition of any permit issued under this article that is not federally enforceable shall be marked in the permit as state-only enforceable and shall only be enforceable by the board. Incorrectly designating a term or condition as state-only enforceable shall not provide a shield from federal enforcement of a term or condition that is legally federally enforceable.

F. Nothing in the regulations of the board shall be construed to prevent the board from granting permits for programs of construction or modification in planned incremental phases. In such cases, all net emissions increases from all emissions units covered by the program shall be added together for determining the applicability of this article.

9VAC5-80-2140. Exception Exemptions.

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

1. Coal cleaning plants (with thermal dryers);

2. Kraft pulp mills;

3. Portland cement plants;

4. Primary zinc smelters;

5. Iron and steel mills;

6. Primary aluminum ore reduction plants;

7. Primary copper smelters;

8. Municipal incinerators capable of charging more than 250 tons of refuse per day;

9. Hydrofluoric acid plants;

10. Sulfuric acid plants;

11. Nitric acid plants;

12. Petroleum refineries;

13. Lime plants;

14. Phosphate rock processing plants;

15. Coke oven batteries;

16. Sulfur recovery plants;

17. Carbon black plants (furnace process);

18. Primary lead smelters;

19. Fuel conversion plants;

20. Sintering plants;

21. Secondary metal production plants;

22. Chemical process plants;

23. Fossil-fuel boilers (or combination of them) totaling more than 250 million British thermal units per hour heat input;

24. Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels;

25. Taconite ore processing plants;

26. Glass fiber processing plants;

27. Charcoal production plants;

28. Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input; and

29. Any other stationary source category which, as of August 7, 1980, is being regulated under 40 CFR Parts 60, 61 or 63.

B. The requirements of this article shall not apply to a particular major stationary source with respect to the use of an alternative fuel or raw material if the following conditions are met:

1. The owner demonstrates to the board that, as a result of trial burns at the owner’s facility or other facilities or other sufficient data, the emissions resulting from the use of the alternative fuel or raw material supply are decreased. No demonstration will be required for the use of processed animal fat, processed fish oil, processed vegetable oil, distillate oil, or any mixture thereof in place of the same quantity of residual oil to fire industrial boilers.

2. The use of an alternative fuel or raw material would not be subject to review under this article as a major modification.

9VAC5-80-2195. Actions to combine permit terms and conditions.

A. General requirements for actions to combine permit terms and conditions are as follows:

1. Except as provided in subdivision 3 of this subsection, the board may take actions to combine permit terms and conditions as provided under subsections B through E of this section.

2. Requests to combine permit terms and conditions may be initiated by the permittee or by the board.

3. Under no circumstances may an action to combine permit terms and conditions be used for any of the following:

a. To combine the terms and conditions of (i) a federal operating permit, (ii) a PAL permit, or (iii) any permit that is or will be part of the implementation plan.

b. To take an action to issue a permit or change a permit for the fabrication, erection, installation, demolition, relocation, addition, replacement, or modification of an emissions unit that would result in a change in emissions that would otherwise (i) be subject to review under this article or (ii) require a permit or permit amendment under the new source review program.

c. To allow any stationary source or emissions unit to violate any federal requirement.

d. To take an action to issue a permit or change a permit for any physical change in or change in the method of operation of a major stationary source that is subject to the provisions in 9VAC5-80-2000 D (restrictions on relaxing enforceable emission limitations that the major stationary source used to avoid applicability of the major NSR program).

B. The board may take actions to combine the terms and conditions of state operating permits and new source review permits, along with any changes to state operating permits and new source review permits.

C. If the board and the owner make a mutual determination that it facilitates improved compliance or the efficient processing and issuing of permits, the board may take an action to combine the terms and conditions of permits for emissions units within a stationary source into one or more permits. Likewise the board may require that applications for permits for emissions units within a stationary source required by any permit program be combined into one application.

D. Actions to combine the terms and conditions of permits are subject to the following conditions:

1. Each term or condition in the combined permit shall be accompanied by a statement that specifies and references the origin (enabling permit program) of, along with the regulatory or any other authority for, the term or condition.

2. Each term or condition in the combined permit shall be accompanied by a statement that specifies the effective date of the term or condition.

3. Each term or condition in the combined permit shall be identified by its original designation (i.e., state-only enforceable or federally and state enforceable) consistent with the applicable enforceability designation of the term or condition in the contributing permit.

4. Except as provided in subsection E of this section, all terms and conditions in the contributing permits shall be included in the combined permit without change. The combined permit will supersede the contributing permits, which will no longer be effective.

E. Actions to make changes to permit terms and conditions as may be necessary to facilitate actions to combine permit terms and conditions may be accomplished in accordance with the minor amendment procedures (unless specified otherwise in this section) of the enabling permit program (i.e., the permit program that is the origin of the term or condition), subject to the following conditions:

1. Updates to regulatory or other authorities may be accomplished in accordance with the administrative amendment procedures of the enabling permit program.

2. If two or more terms or conditions apply to the same emissions unit or emissions units and are substantively equivalent, the more restrictive of the duplicate terms or conditions may be retained and the less restrictive one removed, subject to the provisions of subdivision 4 of this subsection.

3. If two or more similar terms or conditions apply to the same emissions unit or emissions units and one is substantively more restrictive than the others, the more restrictive of the terms or conditions shall be retained, regardless of whether the less restrictive terms or conditions are removed. If the less restrictive of the similar terms or conditions is removed, the provisions of subdivision 4 of this subsection apply.

4. The removal of similar terms or conditions from contributing permits is subject to the following conditions:

a. If any one of the terms or conditions removed is federally and state enforceable, the more restrictive term or condition that is retained in the combined permit shall be federally and state enforceable.

b. If any one of the terms or conditions originates in a permit subject to a major NSR program, that major NSR program shall become the effective enabling permit program for the more restrictive term or condition that is retained in the combined permit. If more than one major NSR program is the basis for a term or condition, all of the applicable major NSR programs shall be the enabling permit program for that term or condition.

c. The regulatory basis for all of the similar terms or conditions that are removed shall be included in the reference for the term or condition that is retained.

9VAC5-80-2200. Changes to Actions to change permits.

A. The general requirements for making actions to make changes to permits issued under this article are as follows:

1. Except as provided in subdivision 3 of this subsection, changes to a permit issued under this article shall be made as specified under subsections B and C of this section and 9VAC5-80-2210 through 9VAC5-80-2240.

2. Changes to a permit issued under this article may be initiated by the permittee as specified in subsection B of this section or by the board as specified in subsection C of this section.

3. Changes to a permit issued under this article and incorporated into a permit issued under Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part shall be made as specified in Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part.

4. Under no circumstances may a permit issued under this article be changed in order to (i) incorporate the terms and conditions necessary to implement any provision of the new source review program for a project that qualifies as a modification under the new source review program or (ii) incorporate the terms and conditions necessary to implement any provision of the new source review program for a PAL permit.

B. The requirements for changes initiated by the permittee are as follows:

1. The permittee may initiate a change to a permit by submitting a written request to the board for an administrative permit amendment, a minor permit amendment or a significant permit amendment. The requirements for these permit changes can be found in 9VAC5-80-2210 through 9VAC5-80-2230.

2. A request for a change by a permittee shall include a statement of the reason for the proposed change.

C. The board may initiate a change to a permit through the use of permit reopenings as specified in 9VAC5-80-2240.

9VAC5-80-2210. Administrative permit amendments.

A. Administrative permit amendments shall be required used for and limited to the following:

1. Correction of typographical or any other error, defect or irregularity that does not substantially affect the permit.

2. Identification of a change in the name, address, or phone number of any person identified in the permit, or of a similar minor administrative change at the source.

3. Change in ownership or operational control of a source where the board determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the board and the requirements of 9VAC5-80-2170 have been fulfilled.

B. The administrative permit amendment procedures are as follows:

1. The board will normally take final action on a request for an administrative permit amendment no more than 60 days from receipt of the request.

2. The board will incorporate the changes without providing notice to the public under 9VAC5-80-2070. However, any such permit revisions shall be designated in the permit amendment as having been made pursuant to this section.

3. The owner may implement the changes addressed in the request for an administrative amendment immediately upon submittal of the request.

9VAC5-80-2220. Minor permit amendments.

A. Minor permit amendment procedures shall be used only for those permit amendments that meet all of the following criteria:

1. Do not violate any applicable federal requirement.

2. Do not involve significant changes to existing monitoring, reporting, or record keeping requirements that would make the permit requirements less stringent, such as a change to the method of monitoring to be used, a change to the method of demonstrating compliance or a relaxation of reporting or record keeping requirements.

3. Do not require or change a case-by-case determination of an emission emissions limitation or other standard requirement.

4. Do not seek to establish or change a permit term or condition (i) for which there is no corresponding underlying applicable regulatory requirement and (ii) that the source has assumed to avoid an applicable regulatory requirement to which the source would otherwise be subject. Such terms and conditions include, but are not limited to, an emissions cap assumed to avoid classification as a modification under the new source review program.

5. Are not required to be processed as a significant amendment under 9VAC5-80-2230 or as an administrative permit amendment under 9VAC5-80-2210.

B. Notwithstanding subsection A of this section, minor permit amendment procedures may be used for permit amendments that meet any of the following criteria:

1. Involve the use of economic incentives, emissions trading, and other similar approaches, to the extent that such minor permit amendment procedures are explicitly provided for in a regulation of the board or a federally-approved program.

2. Require new or more frequent monitoring or reporting by the permittee.

3. Designate any term or permit condition that meets the criteria in 9VAC5-80-2020 E 1 as state-only enforceable as provided in 9VAC5-80-2020 E 2 for any permit issued under this article or any regulation from which this article is derived.

C. Minor permit amendment procedures may be used for permit amendments involving the rescission of a provision of a permit if the board and the owner make a mutual determination that the provision is rescinded because all of the underlying statutory or regulatory requirements (i) upon which the provision is based or (ii) that necessitated inclusion of the provision are no longer applicable. In order for the underlying statutory and regulatory requirements to be considered no longer applicable, the provision of the permit that is being rescinded must not cover a regulated NSR pollutant.

D. A request for the use of minor permit amendment procedures shall include all of the following: 1. A a description of the change, the emissions resulting from the change, and any new applicable regulatory requirements that will apply if the change occurs. 2. A, along with a request that such procedures be used. The applicant may, at the applicant’s discretion, include a suggested proposed permit amendment.

E. The public participation requirements of 9VAC5-80-2070 shall not extend to minor permit amendments.

F. Normally within 90 days of receipt by the board of a complete request under minor permit amendment procedures, the board will do one of the following:

1. Issue the permit amendment as proposed.

2. Deny the permit amendment request.

3. Determine that the requested amendment does not meet the minor permit amendment criteria and should be reviewed under the significant amendment procedures.

G. The requirements for making changes are as follows:

1. The owner may make the change proposed in the minor permit amendment request immediately after the request is filed.

2. After the change under subdivision 1 of this subsection is made, and until the board takes any of the actions specified in subsection F of this section, the source shall comply with both the applicable regulatory requirements governing the change and the proposed permit terms and conditions amendment.

3. During the time period specified in subdivision 2 of this subsection, the owner need not comply with the existing permit terms and conditions the owner seeks to modify if the applicant has submitted a proposed permit amendment. However, if the owner fails to comply with the proposed permit terms and conditions during this time period, the existing permit terms and conditions the owner seeks to modify may be enforced against the owner.

9VAC5-80-2230. Significant amendment procedures.

A. The criteria for use of significant amendment procedures are as follows:

1. Significant amendment procedures shall be used for requesting permit amendments that do not qualify as minor permit amendments under 9VAC5-80-2220 or as administrative amendments under 9VAC5-80-2210.

2. Significant amendment procedures shall be used for those permit amendments that meet any of the following criteria:

a. Involve significant changes to existing monitoring, reporting, or record keeping requirements that would make the permit requirements less stringent, such as a change to the method of monitoring to be used, a change to the method of demonstrating compliance or a relaxation of reporting or recordkeeping requirements.

b. Require or change a case-by-case determination of an emission emissions limitation or other standard requirement.

c. Seek to establish or change a permit term or condition (i) for which there is no corresponding underlying applicable regulatory requirement and (ii) that the source has assumed to avoid an applicable regulatory requirement to which the source would otherwise be subject. Such terms and conditions include, but are not limited to, an emissions cap assumed to avoid classification as a modification under the new source review program.

B. A request for a significant permit amendment shall include a description of the change, the emissions resulting from the change, and any new applicable regulatory requirements that will apply if the change occurs. The applicant may, at the applicant's discretion, include a suggested draft permit amendment.

C. The provisions of 9VAC5-80-2070 shall apply to requests made under this section.

D. The board will normally take final action on significant permit amendments within 180 days after receipt of a complete request except in cases where direct consideration of the request by the board is granted pursuant to 9VAC5-80-25. The board may extend this time period if additional information is needed.

E. The owner shall not make the change applied for in the significant amendment request until the amendment is approved by the board under subsection D of this section.

9VAC5-80-2240. Reopening for cause.

A. A permit may be reopened and amended under any of the following situations:

1. Additional regulatory requirements become applicable to the emissions units covered by the permit after a permit is issued but prior to commencement of construction.

2. The board determines that the permit contains a material mistake or that inaccurate statements were made in establishing the emissions standards or other terms or conditions of the permit.

3. The board determines that the permit must be amended to assure compliance with the applicable regulatory requirements or that the terms and conditions of the permit are not sufficient to meet all of the standards and requirements contained in this article.

B. Proceedings to reopen and reissue a permit shall follow the same procedures as apply to initial permit issuance and shall affect only those parts of the permit for which cause to reopen exists. Such reopening shall be made as expeditiously as practicable.

C. Reopenings shall not be initiated before a notice of such intent is provided to the source by the board at least 30 days in advance of the date that the permit is to be reopened, except that the board may provide a shorter time period in the case of an emergency.

Title of Regulation: 9VAC25-720. Water Quality Management Planning Regulation (amending 9VAC25-720-50, 9VAC25-720-60, 9VAC25-720-90, 9VAC25-720-110).

Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1313(e) of the Clean Water Act.

Effective Date: July 8, 2009.

Agency Contact: David Lazarus, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4299, FAX (804) 698-4116, or email david.lazarus@deq.virginia.gov.

Summary:

The amendments to the Water Quality Management Planning Regulation include nine new total maximum daily load (TMDL) wasteload allocations. The amendments are to the following river basins: Potomac-Shenandoah River Basin (9VAC25-720-50 A), James River Basin (9VAC25-720-60 A), Tennessee - Big Sandy River Basin (9VAC25-720-90 A), and the Chesapeake Bay-Small Coastal Basin (9VAC25-720-110 A).