Title of Regulation: 1VAC20-10. Public Participation Guidelines (adding 1VAC20-10-10 through 1VAC20-10-130).

Statutory Authority: § 24.2-103 of the Code of Virginia.

Effective Date: July 19, 2010.

Agency Contact: James B. Alcorn, Deputy Secretary, State Board of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8944, or email james.alcorn@sbe.virginia.gov.

Summary:

The regulations provide procedures for the adoption of regulations based on model public participation guidelines issued by the Department of Planning and Budget. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.

CHAPTER 10
PUBLIC PARTICIPATION GUIDELINES

1VAC20-10-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the State Board of Elections.

"Approving authority" means the State Board of Elections established pursuant to § 24.2-103 of the Code of Virginia as the legal authority to adopt regulations.

"Board" means the State Board of Elections, which is the unit of state government empowered by Title 24.2 of the Code of Virginia to make rules and regulations for registration of voters and elections. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

"Negotiated rulemaking panel" or "NRP" means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members of the board will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended, and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

1VAC20-10-20. Notification list.

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

1VAC20-10-30. Information to be sent to persons on the notification list.

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 1VAC20-10-20, the agency shall send the following information:

1. A notice of proposed exempt regulatory action with the comment period for a proposed, a reproposed, or an emergency regulation; and

2. If available, hyperlinks to, or instructions on how to obtain, a copy of the proposed action and any supporting documents.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

1VAC20-10-40. Public comment.

A. Whenever directed by statute or upon its own initiative, the agency may commence the regulation adoption process and proceed to draft a proposal according to these procedures.

B. In considering any nonemergency, exempt regulatory action, the board shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; any economic impact analysis of the proposed regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

C. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of proposed exempt regulatory action.

2. For a minimum of 30 calendar days following the publication of a reproposed regulation.

3. To the extent reasonably possible following the publication of a proposed emergency regulation.

4. For a minimum of 21 calendar days following the publication of a notice of periodic review.

5. Not later than 21 calendar days following the publication of a petition for rulemaking.

D. The agency may determine if any of the comment periods listed in subsection C of this section shall be extended or reduced if necessary.

E. If the board finds that one or more changes with substantial impact have been made to a proposed regulation, it may allow an additional 30 calendar days to solicit additional public comment on the changes.

F. If practicable, the board shall send a draft of the board's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation.

1VAC20-10-50. Petition for rulemaking.

A. Any person may petition the board to consider a regulatory action.

B. A petition shall include sufficient information to understand and evaluate the proposed action and contact the person responsible for presenting it. The following is a noninclusive list of information typically needed to the extent available:

1. The petitioner's name, mailing address, email address, and telephone number;

2. The petitioner's interest in the proposed action;

3. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections;

4. Reference to the legal authority of the agency to take the action requested;

5. Statement of the need and justification for the proposed action;

6. Statement of the impact on the petitioner and other affected persons; and

7. Supporting documents, if applicable.

C. The agency shall receive, consider, and respond to a petition and shall have the sole authority to dispose of the petition. The board may require a petitioner to reimburse copying costs associated with a petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

1VAC20-10-60. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if the proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate.

1VAC20-10-70. Appointment of negotiated rulemaking panel.

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation; or

2. The agency determines that resolution of a controversy is unlikely.

1VAC20-10-80. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

1VAC20-10-90. Public hearings on regulations.

A. The board shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The board may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The Governor requests the board to hold a public hearing; or

2. The board receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of proposed regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The board shall also notify those persons who requested a hearing under subdivision C 2 of this section.

1VAC20-10-100. Effective date and posting to agency website.

Regulations adopted by the board shall be effective as of the date stated in the regulation, which may provide conditions, including preclearance required under the federal Voting Rights Act, and in no event before they are published in the Register of Regulations. All adopted regulations shall be posted to the agency website within three business days after they become effective.

1VAC20-10-110. Appeal of board decisions.

Any person aggrieved by an action of the board under this chapter may appeal to the House or Senate Privileges and Elections Committee or to the Joint Commission on Administrative Rules to make an objection as provided in § 2.2-4014 of the Code of Virginia.

1VAC20-10-120. Periodic review of regulations.

A. Following each presidential election, the board shall conduct a periodic review of its regulations consistent with an executive order issued by the Governor to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

1VAC20-10-130. Transition.

All regulatory actions shall be processed in accordance with this chapter. Policies of the board adopted or approved before July 19, 2010, shall be processed as regulations for publication in the Virginia Administrative Code.

Title of Regulation: 2VAC5-70. Health Requirements Governing the Control of Equine Infectious Anemia in Virginia.

Statutory Authority: §§ 3.2-6001 and 3.2-6004 of the Code of Virginia.

Contact Information: Doug Saunders, Deputy Director, Division of Animal and Food Industry Services, Virginia Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23219, telephone (804) 786-8905, or email doug.saunders@vdacs.virginia.gov.

FORMS (2VAC5-70)

Equine Sale Release Requirement and Quarantine, Form VDACS-03038.

Permit For Movement of Restricted Animals, Form VS Form 1-27, eff. 1/73 (rev. 6/89).

Equine Infectious Anemia Report, Form VDACS-03172, eff. 4/85.

Horse Show Report Form.

Livestock For Slaughter Purposes Only, Form VDACS-03019, eff. 8/82.

Certificate of Veterinary Inspection (For Use Only in Shipping Equine) Examination, Form VDACS-03034, eff. 5/81 (rev. 1/06).

Notice of Quarantine, Form VDACS-03021, eff. 9/85 (rev. 5/10).

Equine Event Report (Equidae with Official EIA Test), VDACS-03028 (eff. 10/01).

Equine Event Denied Entry Report, VDACS-03029 (eff. 9/09).

Equine Infectious Anemia Laboratory Test, VS Form 10-11 (rev. 5/00).

Title of Regulation: 2VAC5-316. Rules and Regulations for Enforcement of the Virginia Pest Law - Beach Vitex Quarantine (amending 2VAC5-316-30 through 2VAC5-316-90).

Statutory Authority: § 3.2-703 of the Code of Virginia.

Effective Date: July 8, 2010.

Agency Contact: Larry Nichols, Program Manager, Department of Agriculture and Consumer Services, 102 Governor Street, Richmond, VA 23219, telephone (804) 786-3515, FAX (804) 371-7793, or email larry.nichols@vdacs.virginia.gov.

Summary:

The amendments expand the Beach Vitex quarantine to prohibit the movement of regulated articles throughout the entire Commonwealth of Virginia, which is necessary to prevent the long distance (artificial) spread of Beach Vitex to coastal areas of the Commonwealth. Prior regulation prohibited the movement of regulated articles in Accomack and Northampton counties and the cities of Norfolk and Virginia Beach. Including all Virginia localities in this quarantine will help prevent the spread of this plant from inland areas to the coastal areas of Virginia.

The amendments restrict movement of regulated articles, as defined in 2VAC5-316-40. A certificate or permit must be issued before movement of regulated articles into, within, or out of the regulated area can occur. Conditions under which the certificate or permit will be issued are described in 2VAC5-316-70.

2VAC5-316-30. Definitions.

The following words and terms shall have the following meanings unless the context clearly indicates otherwise:

"Beach Vitex" means the live plant, in any life stage, known as Beach Vitex, Vitex rotundifolia.

"Board" means the Virginia Board of Agriculture and Consumer Services.

"Certificate" means a document issued by an inspector or person operating in accordance with a compliance agreement to allow the movement of regulated articles to any destination.

"Commissioner" means the Commissioner of the Virginia Department of Agriculture and Consumer Services.

"Compliance agreement" means a written agreement between a person engaged in handling, receiving, or moving regulated articles and the Virginia Department of Agriculture and Consumer Services wherein the former agrees to fulfill the requirements of the compliance agreement and comply with the provisions of this regulation.

"Department" means the Virginia Department of Agriculture and Consumer Services.

"Infestation" means the presence of Beach Vitex or the existence of circumstances that make it reasonable to believe that life stages of Beach Vitex are present.

"Inspector" means an employee of the Virginia Department of Agriculture and Consumer Services or other person authorized by the Commissioner of the Virginia Department of Agriculture and Consumer Services to enforce the provisions of this quarantine or regulation.

"Limited permit" means a document issued by an inspector to allow the movement of regulated articles to a specific destination.

"Moved," "move," or "movement" means shipped, offered for shipment, received for transportation, transported, carried, or allowed to be moved, shipped, transported, or carried.

"Person" means the term as defined in § 1-230 of the Code of Virginia.

"Regulated area" means the locality or area listed in 2VAC5-315-50 of this quarantine.

"Virginia Pest Law" means the statute set forth in Chapter 7 (§ 3.2-700 et seq.) of Title 3.2 of the Code of Virginia.

2VAC5-316-40. Regulated articles.

The following articles are regulated under the provisions of this quarantine and shall not be moved into, within, or out of any the regulated area in Virginia, except in compliance with the conditions prescribed in this quarantine:

1. Beach Vitex, in any life stage, including roots, stems, and seeds.

2. Any article known to be infested with Beach Vitex, such as sand, soil, or mulch containing Beach Vitex in any life stage.

3. Any other article or means of conveyance when it is determined by an inspector that it presents a risk of spreading Beach Vitex.

2VAC5-316-50. Regulated areas.

The following areas in Virginia are quarantined for Beach Vitex:

The entire counties of:

Accomack

Northampton

The entire cities of:

Norfolk

Virginia Beach

The entire Commonwealth of Virginia is quarantined for Beach Vitex.

2VAC5-316-60. Conditions governing the intrastate movement of regulated articles.

A. Movement within regulated area The movement of a regulated article solely into, within, or out of the quarantined area is prohibited unless accompanied by a valid certificate or limited permit.

B. Movement from regulated area into nonregulated area – movement of a regulated article that originates inside of the quarantined area to an area outside of the quarantined area is prohibited unless accompanied by a valid certificate or limited permit.

C. Movement from nonregulated area into regulated area – movement of a regulated article that originates outside of the quarantined area to an area inside of the quarantined area is prohibited unless accompanied by a valid certificate or limited permit.

D. Movement outside of the regulated area – movement of a regulated article solely outside of the quarantined area is not restricted.

2VAC5-316-70. Issuance and cancellation of certificates and limited permits.

A. Certificates and limited permits may be issued by an inspector for the movement of regulated articles into, within, or out of any the regulated area to any destination within Virginia when the regulated articles meet the following three conditions:

1. The regulated articles are to be moved intrastate to a specified destination under conditions that specify the limited handling, utilization, processing, or treatment of the articles when the inspector determines that such movement will not result in the spread of Beach Vitex because the life stage of the plant will be destroyed by such specified handling, utilization, processing, or treatment; or the regulated articles are to be moved by a state or federal agency or person authorized by the department for experimental or scientific purposes;

2. The regulated articles are to be moved in compliance with any additional conditions deemed necessary under the Virginia Pest Law to prevent the spread of Beach Vitex; and

3. The regulated articles are eligible for unrestricted movement under all other domestic plant quarantines and regulations applicable to the regulated articles.

B. Any certificate or limited permit that has been issued or authorized may be withdrawn by the inspector orally or in writing if the inspector determines that the holder of the certificate or limited permit has not complied with all conditions for the use of the certificate or limited permit or with any applicable compliance agreement. If the withdrawal is oral, the withdrawal and the reasons for the withdrawal shall be confirmed in writing and communicated to the certificate or limited permit holder as promptly as circumstances allow.

2VAC5-316-80. Assembly and inspection of regulated articles.

A. Any person who desires to move regulated articles into, within, or out of any the regulated area shall apply for a limited permit as far in advance as practical but no less than five business days before the regulated articles are to be moved.

B. The regulated article must be assembled at the place and in the manner the inspector designates as necessary to facilitate inspection and shall be safeguarded from infestation.

2VAC5-316-90. Attachment and disposition of certificates and limited permits.

A. A certificate or limited permit required for the movement of a regulated article into, within, or out of any the regulated area must be attached at all times during the intrastate movement to the outside of the container that contains the regulated article or to the regulated article itself. The requirements of this section may also be met by attaching the certificate or limited permit to the consignee's copy of the waybill provided the regulated article is sufficiently described on the certificate or limited permit and on the waybill to facilitate the identification of the regulated article.

B. The certificate or limited permit for the intrastate movement of a regulated article must be furnished by the carrier to the consignee at the destination of the regulated article. A copy of the certificate or the limited permit must be retained by the sender of the regulated article at the place of shipment.

Title of Regulation: 2VAC5-335. Virginia Emerald Ash Borer Quarantine for Enforcement of the Virginia Pest Law (amending 2VAC5-335-50).

Statutory Authority: § 3.2-703 of the Code of Virginia.

Effective Date: July 8, 2010.

Agency Contact: Larry M. Nichols, Program Manager, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 371-3515, FAX (804) 371-7793, or email larry.nichols@vdacs.virginia.gov.

Summary:

The amendment extends the regulated areas under the Virginia Emerald Ash Borer Quarantine due to the detection of adult Emerald Ash Borers in Frederick County. The current regulated area is changed by the addition of the counties of Frederick and Clarke and the city of Winchester. All other parts of the Emerald Ash Borer Quarantine remain unchanged.

2VAC5-335-50. Regulated areas.

The following areas in Virginia:

The entire counties of:

Arlington

Clarke

Fairfax

Fauquier

Frederick

Loudoun

Prince William

The entire independent cities of:

Alexandria

Fairfax City

Falls Church

Manassas

Manassas Park

Winchester

Title of Regulation: 5VAC5-40. Administration of the Office of the Clerk of the Commission (adding 5VAC5-40-10).

Statutory Authority: § 12.1-13 of the Code of Virginia.

Effective Date: July 1, 2010.

Agency Contact: Joel Peck, Clerk of the Commission, State Corporation Commission, 1300 E. Main Street, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9733, FAX (804) 692-0681, or email joel.peck@scc.virginia.gov.

Summary:

The regulation is intended to implement the provisions of Chapter 669 of the 2010 Acts of Assembly relating to fees charged by the State Corporation Commission for copying. The regulation specifies the fees to be charged for copying and for providing a certificate for certain documents. The fees are identical to those that are currently in statute. Changes from the proposed regulation and the final regulation are technical in nature and merely conform the language of the regulation more closely to the language of the statute the regulation is intended to replace.

AT RICHMOND, JUNE 29, 2010

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. CLK-2010-00007

Ex Parte: In re: fees charged by the Office
of the Clerk of the Commission

ORDER ADOPTING A REGULATION

On May 18, 2010, the State Corporation Commission ("Commission") entered an Order to Take Notice of a proposal by the Commission to adopt a regulation pursuant to Chapter 669 of the 2010 Virginia Acts of Assembly ("Chapter 669 of the Acts"). The proposed regulation, 5 VAC 5-40-10, places in the Virginia Administrative Code the fees charged by the Commission for copying and other services that are repealed from the Code of Virginia by Chapter 669 of the Acts. The Order and proposed regulation were published in the Virginia Register of Regulations on June 7, 2010, and published on the Commission's website. Interested parties were afforded the opportunity to provide written comments or request a hearing on or before June 18, 2010.

No comments were filed, nor were any requests for hearing made in this matter.

NOW THE COMMISSION, upon consideration of the proposed regulation, the recommendations of the Office of the Clerk of the Commission ("Clerk"), and applicable law, concludes that the proposed regulation should be modified to reflect certain technical changes recommended by the Clerk and that the proposed regulation, as modified, should be adopted with an effective date of July 1, 2010.

Accordingly, IT IS ORDERED THAT:

(1) The proposed regulation, 5 VAC 5-40-10, as modified herein and attached hereto, is adopted effective July 1, 2010.

(2) This Order and the attached regulation shall be posted on the Commission's website at http://www.scc.virginia.gov/case.

(3) The Commission's Division of Information Resources shall send a copy of this Order, including a copy of the attached regulation, to the Virginia Registrar of Regulations for publication in the Virginia Register of Regulations.

(4) This case is dismissed from the Commission's docket of active cases.

AN ATTESTED COPY hereof shall be sent to the Clerk of the Commission, who shall forthwith mail a copy of this Order, including a copy of the attached regulation, to interested parties as he may designate.

CHAPTER 40
ADMINISTRATION OF THE OFFICE OF THE CLERK OF THE COMMISSION

5VAC5-40-10. Fees to be charged by the [ Office of the Clerk commission ].

A. The Office of the Clerk shall charge and collect a fee of $6.00 for each certificate of fact provided pursuant to § 12.1-20 of the Code of Virginia.

B. The commission shall charge and collect for furnishing [ and certifying ] a copy of any document, instrument, or paper [ or any information from its records ] $ .50 per page and $3.00 for the certificate and affixing [ thereto ] the seal [ thereto of the commission or a facsimile thereof ].

Title of Regulation: 6VAC20-20. Rules Relating to Compulsory Minimum Training Standards for Law-Enforcement Officers (amending 6VAC20-20-21).

Statutory Authority: § 9.1-102 of the Code of Virginia.

Effective Date: August 18, 2010.

Agency Contact: Judith Kirkendall, Regulatory Coordinator, Department of Criminal Justice Services, 1100 Bank Street, Richmond, VA 23219, telephone (804) 786-8003, FAX (804) 225-3853, or email judith.kirkendall@dcjs.virginia.gov.

Summary:

The amendment removes the outdated and inaccurate numbering related to performance outcomes.

6VAC20-20-21. Performance outcomes and minimum hours required.

A. The performance outcomes are detailed in the document entitled "Performance Outcomes for Compulsory Minimum Training For Law Enforcement Officers," December 1997, which is incorporated by reference and made a part of this chapter.

B. Academy training.

1. Category 1—Professionalism, Performance Outcomes 1.1 through 1.5

2. Category 2—Legal Issues, Performance Outcomes 2.A.1 through 2.C.1.f

3. Category 3—Communications, Performance Outcomes 3.A.1 through 3.B.3

4. Category 4—Patrol, Performance Outcomes 4.A.1 through 4.H.3

5. Category 5—Investigations, Performance Outcomes 5.A.1 through 5.D.2

6. Category 6—Defensive Tactics/Use of Force, Performance Outcomes 6.A.1 through 6.F.1

7. Category 7—Weapons Use, Performance Outcomes 7.A.1 through 7.A.3.d

8. Category 8—Driver Training, Performance Outcomes 8.A.1 through 8.A.7

9. Category 9—Physical Training, Performance Outcomes 9.A.1 through 9.B.9 (Optional)

ACADEMY TRAINING HOURS—480 (excluding Category 9)

C. Field training.

Category 10—Field Training, Performance Outcomes 10.A.1 through 10.J.6

FIELD TRAINING HOURS—100

TOTAL MINIMUM TRAINING STANDARDS HOURS—580 (excluding Category 9)

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

9VAC5-30. Ambient Air Quality Standards (amending 9VAC5-30-70).

Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 108, 109, and 302 of the Clean Air Act; 40 CFR Parts 50, 53, and 58.

Effective Date: August 18, 2010.

Agency Contact: Karen G. Sabasteanski, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4426, FAX (804) 698-4510, or email karen.sabasteanski@deq.virginia.gov.

Summary:

A new Appendix S was added to 40 CFR Part 50. Therefore, 9VAC5-20 is amended to add Appendix S to the list of federal documents incorporated by reference.

9VAC5-30 is revised to (i) specify that NO₂ is the indicator for NO_X, (ii) limit the 53 ppb standard to the annual primary standard and change unit of measurement, (iii) add the new primary 1-hour standard, (iv) specify reference methods used to measure the standard, and (v) specify how the different standards are attained.

9VAC5-20-21. Documents incorporated by reference.

A. The Administrative Process Act and Virginia Register Act provide that state regulations may incorporate documents by reference. Throughout these regulations, documents of the types specified below have been incorporated by reference.

1. United States Code.

2. Code of Virginia.

3. Code of Federal Regulations.

4. Federal Register.

5. Technical and scientific reference documents.

Additional information on key federal regulations and nonstatutory documents incorporated by reference and their availability may be found in subsection E of this section.

B. Any reference in these regulations to any provision of the Code of Federal Regulations (CFR) shall be considered as the adoption by reference of that provision. The specific version of the provision adopted by reference shall be that contained in the CFR (2008) in effect July 1, 2008. In making reference to the Code of Federal Regulations, 40 CFR Part 35 means Part 35 of Title 40 of the Code of Federal Regulations; 40 CFR 35.20 means § 35.20 in Part 35 of Title 40 of the Code of Federal Regulations.

C. Failure to include in this section any document referenced in the regulations shall not invalidate the applicability of the referenced document.

D. Copies of materials incorporated by reference in this section may be examined by the public at the central office of the Department of Environmental Quality, Eighth Floor, 629 East Main Street, Richmond, Virginia, between 8:30 a.m. and 4:30 p.m. of each business day.

E. Information on federal regulations and nonstatutory documents incorporated by reference and their availability may be found below in this subsection.

1. Code of Federal Regulations.

a. The provisions specified below from the Code of Federal Regulations (CFR) are incorporated herein by reference.

(1) 40 CFR Part 50-National Primary and Secondary Ambient Air Quality Standards.

(a) Appendix A -- Reference Method for the Determination of Sulfur Dioxide in the Atmosphere (Pararosaniline Method).

(b) Appendix B -- Reference Method for the Determination of Suspended Particulate Matter in the Atmosphere (High-Volume Method).

(c) Appendix C -- Measurement Principle and Calibration Procedure for the Continuous Measurement of Carbon Monoxide in the Atmosphere (Non-Dispersive Infrared Photometry).

(d) Appendix D -- Measurement Principle and Calibration Procedure for the Measurement of Ozone in the Atmosphere.

(e) Appendix E -- Reserved.

(f) Appendix F -- Measurement Principle and Calibration Procedure for the Measurement of Nitrogen Dioxide in the Atmosphere (Gas Phase Chemiluminescence).

(g) Appendix G -- Reference Method for the Determination of Lead in Suspended Particulate Matter Collected from Ambient Air.

(h) Appendix H -- Interpretation of the National Ambient Air Quality Standards for Ozone.

(i) Appendix I -- Interpretation of the 8-Hour Primary and Secondary National Ambient Air Quality Standards for Ozone.

(j) Appendix J -- Reference Method for the Determination of Particulate Matter as PM₁₀ in the Atmosphere.

(k) Appendix K -- Interpretation of the National Ambient Air Quality Standards for Particulate Matter.

(l) Appendix L - Reference Method for the Determination of Fine Particulate Matter as PM_2.5 in the Atmosphere.

(m) Appendix M - Reserved.

(n) Appendix N - Interpretation of the National Ambient Air Quality Standards for PM_2.5.

(o) Appendix O - Reference Method for the Determination of Coarse Particulate Matter as PM in the Atmosphere.

(p) Appendix P - Interpretation of the Primary and Secondary National Ambient Air Quality Standards for Ozone.

(q) Appendix Q - Reference Method for the Determination of Lead in Suspended Particulate Matter as PM₁₀ Collected from Ambient Air.

(r) Appendix R - Interpretation of the National Ambient Air Quality Standards for Lead.

(s) Appendix S - Interpretation of the Primary National Ambient Air Quality Standards for Oxides of Nitrogen (Nitrogen Dioxide).

(2) 40 CFR Part 51 -- Requirements for Preparation, Adoption, and Submittal of Implementation Plans.

(a) Appendix M -- Recommended Test Methods for State Implementation Plans.

(b) Appendix S -- Emission Offset Interpretive Ruling.

(c) Appendix W -- Guideline on Air Quality Models (Revised).

(d) Appendix Y - Guidelines for BART Determinations Under the Regional Haze Rule.

(3) 40 CFR Part 58 -- Ambient Air Quality Surveillance.

Appendix A - Quality Assurance Requirements for SLAMS, SPMs and PSD Air Monitoring.

(4) 40 CFR Part 60 -- Standards of Performance for New Stationary Sources.

The specific provisions of 40 CFR Part 60 incorporated by reference are found in Article 5 (9VAC5-50-400 et seq.) of Part II of 9VAC5-50 (New and Modified Sources).

(5) 40 CFR Part 61 -- National Emission Standards for Hazardous Air Pollutants.

The specific provisions of 40 CFR Part 61 incorporated by reference are found in Article 1 (9VAC5-60-60 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).

(6) 40 CFR Part 63 -- National Emission Standards for Hazardous Air Pollutants for Source Categories.

The specific provisions of 40 CFR Part 63 incorporated by reference are found in Article 2 (9VAC5-60-90 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).

(7) 40 CFR Part 59, Subpart D-National Volatile Organic Compound Emission Standards for Architectural Coatings, Appendix A -- "Determination of Volatile Matter Content of Methacrylate Multicomponent Coatings Used as Traffic Marking Coatings."

(8) 40 CFR Part 64, Compliance Assurance Monitoring.

(9) 40 CFR Part 72, Permits Regulation.

(10) 40 CFR Part 73, Sulfur Dioxide Allowance System.

(11) 40 CFR Part 74, Sulfur Dioxide Opt-Ins.

(12) 40 CFR Part 75, Continuous Emission Monitoring.

(13) 40 CFR Part 76, Acid Rain Nitrogen Oxides Emission Reduction Program.

(14) 40 CFR Part 77, Excess Emissions.

(15) 40 CFR Part 78, Appeal Procedures for Acid Rain Program.

(16) 40 CFR Part 59 Subpart C, National Volatile Organic Compound Emission Standards for Consumer Products.

(17) 40 CFR Part 152 Subpart I, Classification of Pesticides.

(18) 49 CFR Part 172, Hazardous Materials Table. Special Provisions, Hazardous Materials Communications, Emergency Response Information, and Training Requirements, Subpart E, Labeling.

(19) 29 CFR Part 1926 Subpart F, Fire Protection and Prevention.

b. Copies may be obtained from: Superintendent of Documents, P.O. Box 371954, Pittsburgh, Pennsylvania 15250-7954; phone (202) 783-3238.

2. U.S. Environmental Protection Agency.

a. The following documents from the U.S. Environmental Protection Agency are incorporated herein by reference:

(1) Reich Test, Atmospheric Emissions from Sulfuric Acid Manufacturing Processes, Public Health Service Publication No. PB82250721, 1980.

(2) Compilation of Air Pollutant Emission Factors (AP-42). Volume I: Stationary and Area Sources, stock number 055-000-00500-1, 1995; Supplement A, stock number 055-000-00551-6, 1996; Supplement B, stock number 055-000-00565, 1997; Supplement C, stock number 055-000-00587-7, 1997; Supplement D, 1998; Supplement E, 1999.

(3) "Guidelines for Determining Capture Efficiency" (GD-35), Emissions Monitoring and Analysis Division, Office of Air Quality Planning and Standards, January 9, 1995.

b. Copies of the document identified in subdivision E 2 a (1) of this subdivision, and Volume I and Supplements A through C of the document identified in subdivision E 2 a (2) of this subdivision, may be obtained from: U.S. Department of Commerce, National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161; phone 1-800-553-6847. Copies of Supplements D and E of the document identified in subdivision E 2 a (2) of this subdivision may be obtained online from EPA's Technology Transfer Network at http://www.epa.gov/ttn/index.html. Copies of the document identified in subdivision E 2 a (3) of this subdivision are only available online from EPA's Technology Transfer Network at http://www.epa.gov/ttn/emc/guidlnd.html.

3. U.S. government.

a. The following document from the U.S. government is incorporated herein by reference: Standard Industrial Classification Manual, 1987 (U.S. Government Printing Office stock number 041-001-00-314-2).

b. Copies may be obtained from: Superintendent of Documents, P.O. Box 371954, Pittsburgh, Pennsylvania 15250-7954; phone (202) 512-1800.

4. American Society for Testing and Materials (ASTM).

a. The documents specified below from the American Society for Testing and Materials are incorporated herein by reference.

(1) D323-99a, "Standard Test Method for Vapor Pressure of Petroleum Products (Reid Method)."

(2) D97-96a, "Standard Test Method for Pour Point of Petroleum Products."

(3) D129-00, "Standard Test Method for Sulfur in Petroleum Products (General Bomb Method)."

(4) D388-99, "Standard Classification of Coals by Rank."

(5) D396-98, "Standard Specification for Fuel Oils."

(6) D975-98b, "Standard Specification for Diesel Fuel Oils."

(7) D1072-90(1999), "Standard Test Method for Total Sulfur in Fuel Gases."

(8) D1265-97, "Standard Practice for Sampling Liquefied Petroleum (LP) Gases (Manual Method)."

(9) D2622-98, "Standard Test Method for Sulfur in Petroleum Products by Wavelength Dispersive X-Ray Fluorescence Spectrometry."

(10) D4057-95(2000), "Standard Practice for Manual Sampling of Petroleum and Petroleum Products."

(11) D4294-98, "Standard Test Method for Sulfur in Petroleum and Petroleum Products by Energy-Dispersive X-Ray Fluorescence Spectroscopy."

(12) D523-89, "Standard Test Method for Specular Gloss" (1999).

(13) D1613-02, "Standard Test Method for Acidity in Volatile Solvents and Chemical Intermediates Used in Paint, Varnish, Lacquer and Related Products" (2002).

(14) D1640-95, "Standard Test Methods for Drying, Curing, or Film Formation of Organic Coatings at Room Temperature" (1999).

(15) E119-00a, "Standard Test Methods for Fire Tests of Building Construction Materials" (2000).

(16) E84-01, "Standard Test Method for Surface Burning Characteristics of Building Construction Materials" (2001).

(17) D4214-98, "Standard Test Methods for Evaluating the Degree of Chalking of Exterior Paint Films" (1998).

(18) D86-04b, "Standard Test Method for Distillation of Petroleum Products at Atmospheric Pressure" (2004).

(19) D4359-90, "Standard Test Method for Determining Whether a Material is a Liquid or a Solid" (reapproved 2000).

(20) E260-96, "Standard Practice for Packed Column Gas Chromatography" (reapproved 2001).

(21) D3912-95, "Standard Test Method for Chemical Resistance of Coatings Used in Light-Water Nuclear Power Plants" (reapproved 2001).

(22) D4082-02, "Standard Test Method for Effects of Gamma Radiation on Coatings for Use in Light-Water Nuclear Power Plants."

(23) F852-99, "Standard Specification for Portable Gasoline Containers for Consumer Use" (reapproved 2006).

(24) F976-02, "Standard Specification for Portable Kerosine and Diesel Containers for Consumer Use."

(25) D4457-02, "Standard Test Method for Determination of Dichloromethane and 1,1,1-Trichloroethane in Paints and Coatings by Direct Injection into a Gas Chromatograph" (reapproved 2008).

(26) D3792-05, "Standard Test Method for Water Content of Coatings by Direct Injection Into a Gas Chromatograph."

(27) D2879-97, "Standard Test Method for Vapor Pressure-Temperature Relationship and Initial Decomposition Temperature of Liquids by Isoteniscope" (reapproved 2007).

b. Copies may be obtained from: American Society for Testing Materials, 100 Barr Harbor Drive, West Conshohocken, Pennsylvania 19428-2959; phone (610) 832-9585.

5. American Petroleum Institute (API).

a. The following document from the American Petroleum Institute is incorporated herein by reference: Evaporative Loss from Floating Roof Tanks, API MPMS Chapter 19, April 1, 1997.

b. Copies may be obtained from: American Petroleum Institute, 1220 L Street, Northwest, Washington, D.C. 20005; phone (202) 682-8000.

6. American Conference of Governmental Industrial Hygienists (ACGIH).

a. The following document from the ACGIH is incorporated herein by reference: 1991-1992 Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices (ACGIH Handbook).

b. Copies may be obtained from: ACGIH, 1330 Kemper Meadow Drive, Suite 600, Cincinnati, Ohio 45240; phone (513) 742-2020.

7. National Fire Prevention Association (NFPA).

a. The documents specified below from the National Fire Prevention Association are incorporated herein by reference.

(1) NFPA 385, Standard for Tank Vehicles for Flammable and Combustible Liquids, 2000 Edition.

(2) NFPA 30, Flammable and Combustible Liquids Code, 2000 Edition.

(3) NFPA 30A, Code for Motor Fuel Dispensing Facilities and Repair Garages, 2000 Edition.

b. Copies may be obtained from the National Fire Prevention Association, One Batterymarch Park, P.O. Box 9101, Quincy, Massachusetts 02269-9101; phone (617) 770-3000.

8. American Society of Mechanical Engineers (ASME).

a. The documents specified below from the American Society of Mechanical Engineers are incorporated herein by reference.

(1) ASME Power Test Codes: Test Code for Steam Generating Units, Power Test Code 4.1-1964 (R1991).

(2) ASME Interim Supplement 19.5 on Instruments and Apparatus: Application, Part II of Fluid Meters, 6th edition (1971).

(3) Standard for the Qualification and Certification of Resource Recovery Facility Operators, ASME QRO-1-1994.

b. Copies may be obtained from the American Society of Mechanical Engineers, Three Park Avenue, New York, New York 10016; phone (800) 843-2763.

9. American Hospital Association (AHA).

a. The following document from the American Hospital Association is incorporated herein by reference: An Ounce of Prevention: Waste Reduction Strategies for Health Care Facilities, AHA Catalog no. W5-057007, 1993.

b. Copies may be obtained from: American Hospital Association, One North Franklin, Chicago, IL 60606; phone (800) 242-2626.

10. Bay Area Air Quality Management District (BAAQMD).

a. The following documents from the Bay Area Air Quality Management District are incorporated herein by reference:

(1) Method 41, "Determination of Volatile Organic Compounds in Solvent-Based Coatings and Related Materials Containing Parachlorobenzotrifluoride" (December 20, 1995).

(2) Method 43, "Determination of Volatile Methylsiloxanes in Solvent-Based Coatings, Inks, and Related Materials" (November 6, 1996).

b. Copies may be obtained from: Bay Area Air Quality Management District, 939 Ellis Street, San Francisco, CA 94109, phone (415) 771-6000.

11. South Coast Air Quality Management District (SCAQMD).

a. The following documents from the South Coast Air Quality Management District are incorporated herein by reference:

(1) Method 303-91, "Determination of Exempt Compounds," in Manual SSMLLABM, "Laboratory Methods of Analysis for Enforcement Samples" (1996).

(2) Method 318-95, "Determination of Weight Percent Elemental Metal in Coatings by X-Ray Diffraction," in Manual SSMLLABM, "Laboratory Methods of Analysis for Enforcement Samples" (1996).

(3) Rule 1174 Ignition Method Compliance Certification Protocol (February 28, 1991).

(4) Method 304-91, "Determination of Volatile Organic Compounds (VOC) in Various Materials," in Manual SSMLLABM, "Laboratory Methods of Analysis for Enforcement Samples" (1996).

(5) Method 316A-92, "Determination of Volatile Organic Compounds (VOC) in Materials Used for Pipes and Fittings" in Manual SSMLLABM, "Laboratory Methods of Analysis for Enforcement Samples" (1996).

(6) "General Test Method for Determining Solvent Losses from Spray Gun Cleaning Systems," October 3, 1989.

b. Copies may be obtained from: South Coast Air Quality Management District, 21865 E. Copley Drive, Diamond Bar, CA 91765, phone (909) 396-2000.

12. California Air Resources Board (CARB).

a. The following documents from the California Air Resources Board are incorporated herein by reference:

(1) Test Method 510, "Automatic Shut-Off Test Procedure for Spill-Proof Systems and Spill-Proof Spouts" (July 6, 2000).

(2) Test Method 511, "Automatic Closure Test Procedure for Spill-Proof Systems and Spill-Proof Spouts" (July 6, 2000).

(3) Method 100, "Procedures for Continuous Gaseous Emission Stack Sampling" (July 28, 1997).

(4) Test Method 513, "Determination of Permeation Rate for Spill-Proof Systems" (July 6, 2000).

(5) Method 310, "Determination of Volatile Organic Compounds (VOC) in Consumer Products and Reactive Organic Compounds in Aerosol Coating Products (Including Appendices A and B)" (May 5, 2005).

(6) California Code of Regulations, Title 17, Division 3, Chapter 1, Subchapter 8.5, Article 1, § 94503.5 (2003).

(7) California Code of Regulations, Title 17, Division 3, Chapter 1, Subchapter 8.5, Article 2, §§ 94509 and 94511 (2003).

(8) California Code of Regulations, Title 17, Division 3, Chapter 1, Subchapter 8.5, Article 4, §§ 94540-94555 (2003).

(9) "Certification Procedure 501 for Portable Fuel Containers and Spill-Proof Spouts, CP-501" (July 26, 2006).

(10) "Test Procedure for Determining Integrity of Spill-Proof Spouts and Spill-Proof Systems, TP-501" (July 26, 2006).

(11) "Test Procedure for Determining Diurnal Emissions from Portable Fuel Containers, TP-502" (July 26, 2006).

b. Copies may be obtained from: California Air Resources Board, P.O. Box 2815, Sacramento, CA 95812, phone (906) 322-3260 or (906) 322-2990.

13. American Architectural Manufacturers Association.

a. The following documents from the American Architectural Manufacturers Association are incorporated herein by reference:

(1) Voluntary Specification 2604-02, "Performance Requirements and Test Procedures for High Performance Organic Coatings on Aluminum Extrusions and Panels" (2002).

(2) Voluntary Specification 2605-02, "Performance Requirements and Test Procedures for Superior Performing Organic Coatings on Aluminum Extrusions and Panels" (2002).

b. Copies may be obtained from: American Architectural Manufacturers Association, 1827 Walden Office Square, Suite 550, Schaumburg, IL 60173, phone (847) 303-5664.

14. American Furniture Manufacturers Association.

a. The following document from the American Furniture Manufacturers Association is incorporated herein by reference: Joint Industry Fabrics Standards Committee, Woven and Knit Residential Upholstery Fabric Standards and Guidelines (January 2001).

b. Copies may be obtained from: American Furniture Manufacturers Association, P.O. Box HP-7, High Point, NC 27261; phone (336) 884-5000.

9VAC5-30-70. Nitrogen dioxide Oxides of nitrogen with nitrogen dioxide as the indicator.

A. The primary and secondary annual ambient air quality standard is 0.053 parts per million (100 micrograms per cubic meter) -- annual arithmetic mean concentration 53 parts per billion (ppb), annual average concentration, measured in the ambient air as nitrogen dioxide.

B. The primary 1-hour ambient air quality standard is 100 ppb, 1-hour average concentration, annual arithmetic mean concentration.

C. The secondary ambient air quality standard is 0.053 parts per million (ppm) (100 micrograms per cubic meter), annual arithmetic mean concentration.

D. The levels of the standards Nitrogen dioxide shall be measured by the a reference method described in based on Appendix F of 40 CFR Part 50, or other method designated as such, or by an equivalent method by a federal equivalent method (FEM) designated in accordance with 40 CFR Part 53.

C. The standards are attained when the annual arithmetic mean concentration in a calendar year is less than or equal to 0.053 ppm, rounded to three decimal places (fractional parts equal to or greater than 0.0005 ppm must be rounded up). To demonstrate attainment, an annual mean must be based upon hourly data that are at least 75% complete or upon data derived from manual methods that are at least 75% complete for the scheduled sampling days in each calendar quarter E. The annual primary standard is met when the annual average concentration in a calendar year is less than or equal to 53 ppb, as determined in accordance with Appendix S of 40 CFR Part 50 for the annual standard.

F. The 1-hour primary standard is met when the three-year average of the annual 98th percentile of the daily maximum 1-hour average concentration is less than or equal to 100 ppb, as determined in accordance with Appendix S of 40 CFR Part 50 for the 1-hour standard.

G. The secondary standard is attained when the annual arithmetic mean concentration in a calendar year is less than or equal to 0.053 ppm, rounded to three decimal places (fractional parts equal to or greater than 0.0005 ppm must be rounded up). To demonstrate attainment, an annual mean shall be based upon hourly data that are at least 75% complete or upon data derived from manual methods that are at least 75% complete for the scheduled sampling days in each calendar quarter.

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

9VAC5-30. Ambient Air Quality Standards (amending 9VAC5-30-70).

Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 108, 109, and 302 of the Clean Air Act; 40 CFR Parts 50, 53, and 58.

Effective Date: August 18, 2010.

Agency Contact: Karen G. Sabasteanski, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4426, FAX (804) 698-4510, or email karen.sabasteanski@deq.virginia.gov.

Summary:

A new Appendix S was added to 40 CFR Part 50. Therefore, 9VAC5-20 is amended to add Appendix S to the list of federal documents incorporated by reference.

9VAC5-30 is revised to (i) specify that NO₂ is the indicator for NO_X, (ii) limit the 53 ppb standard to the annual primary standard and change unit of measurement, (iii) add the new primary 1-hour standard, (iv) specify reference methods used to measure the standard, and (v) specify how the different standards are attained.

9VAC5-20-21. Documents incorporated by reference.

A. The Administrative Process Act and Virginia Register Act provide that state regulations may incorporate documents by reference. Throughout these regulations, documents of the types specified below have been incorporated by reference.

1. United States Code.

2. Code of Virginia.

3. Code of Federal Regulations.

4. Federal Register.

5. Technical and scientific reference documents.

Additional information on key federal regulations and nonstatutory documents incorporated by reference and their availability may be found in subsection E of this section.

B. Any reference in these regulations to any provision of the Code of Federal Regulations (CFR) shall be considered as the adoption by reference of that provision. The specific version of the provision adopted by reference shall be that contained in the CFR (2008) in effect July 1, 2008. In making reference to the Code of Federal Regulations, 40 CFR Part 35 means Part 35 of Title 40 of the Code of Federal Regulations; 40 CFR 35.20 means § 35.20 in Part 35 of Title 40 of the Code of Federal Regulations.

C. Failure to include in this section any document referenced in the regulations shall not invalidate the applicability of the referenced document.

D. Copies of materials incorporated by reference in this section may be examined by the public at the central office of the Department of Environmental Quality, Eighth Floor, 629 East Main Street, Richmond, Virginia, between 8:30 a.m. and 4:30 p.m. of each business day.

E. Information on federal regulations and nonstatutory documents incorporated by reference and their availability may be found below in this subsection.

1. Code of Federal Regulations.

a. The provisions specified below from the Code of Federal Regulations (CFR) are incorporated herein by reference.

(1) 40 CFR Part 50-National Primary and Secondary Ambient Air Quality Standards.

(a) Appendix A -- Reference Method for the Determination of Sulfur Dioxide in the Atmosphere (Pararosaniline Method).

(b) Appendix B -- Reference Method for the Determination of Suspended Particulate Matter in the Atmosphere (High-Volume Method).

(c) Appendix C -- Measurement Principle and Calibration Procedure for the Continuous Measurement of Carbon Monoxide in the Atmosphere (Non-Dispersive Infrared Photometry).

(d) Appendix D -- Measurement Principle and Calibration Procedure for the Measurement of Ozone in the Atmosphere.

(e) Appendix E -- Reserved.

(f) Appendix F -- Measurement Principle and Calibration Procedure for the Measurement of Nitrogen Dioxide in the Atmosphere (Gas Phase Chemiluminescence).

(g) Appendix G -- Reference Method for the Determination of Lead in Suspended Particulate Matter Collected from Ambient Air.

(h) Appendix H -- Interpretation of the National Ambient Air Quality Standards for Ozone.

(i) Appendix I -- Interpretation of the 8-Hour Primary and Secondary National Ambient Air Quality Standards for Ozone.

(j) Appendix J -- Reference Method for the Determination of Particulate Matter as PM₁₀ in the Atmosphere.

(k) Appendix K -- Interpretation of the National Ambient Air Quality Standards for Particulate Matter.

(l) Appendix L - Reference Method for the Determination of Fine Particulate Matter as PM_2.5 in the Atmosphere.

(m) Appendix M - Reserved.

(n) Appendix N - Interpretation of the National Ambient Air Quality Standards for PM_2.5.

(o) Appendix O - Reference Method for the Determination of Coarse Particulate Matter as PM in the Atmosphere.

(p) Appendix P - Interpretation of the Primary and Secondary National Ambient Air Quality Standards for Ozone.

(q) Appendix Q - Reference Method for the Determination of Lead in Suspended Particulate Matter as PM₁₀ Collected from Ambient Air.

(r) Appendix R - Interpretation of the National Ambient Air Quality Standards for Lead.

(s) Appendix S - Interpretation of the Primary National Ambient Air Quality Standards for Oxides of Nitrogen (Nitrogen Dioxide).

(2) 40 CFR Part 51 -- Requirements for Preparation, Adoption, and Submittal of Implementation Plans.

(a) Appendix M -- Recommended Test Methods for State Implementation Plans.

(b) Appendix S -- Emission Offset Interpretive Ruling.

(c) Appendix W -- Guideline on Air Quality Models (Revised).

(d) Appendix Y - Guidelines for BART Determinations Under the Regional Haze Rule.

(3) 40 CFR Part 58 -- Ambient Air Quality Surveillance.

Appendix A - Quality Assurance Requirements for SLAMS, SPMs and PSD Air Monitoring.

(4) 40 CFR Part 60 -- Standards of Performance for New Stationary Sources.

The specific provisions of 40 CFR Part 60 incorporated by reference are found in Article 5 (9VAC5-50-400 et seq.) of Part II of 9VAC5-50 (New and Modified Sources).

(5) 40 CFR Part 61 -- National Emission Standards for Hazardous Air Pollutants.

The specific provisions of 40 CFR Part 61 incorporated by reference are found in Article 1 (9VAC5-60-60 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).

(6) 40 CFR Part 63 -- National Emission Standards for Hazardous Air Pollutants for Source Categories.

The specific provisions of 40 CFR Part 63 incorporated by reference are found in Article 2 (9VAC5-60-90 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).

(7) 40 CFR Part 59, Subpart D-National Volatile Organic Compound Emission Standards for Architectural Coatings, Appendix A -- "Determination of Volatile Matter Content of Methacrylate Multicomponent Coatings Used as Traffic Marking Coatings."

(8) 40 CFR Part 64, Compliance Assurance Monitoring.

(9) 40 CFR Part 72, Permits Regulation.

(10) 40 CFR Part 73, Sulfur Dioxide Allowance System.

(11) 40 CFR Part 74, Sulfur Dioxide Opt-Ins.

(12) 40 CFR Part 75, Continuous Emission Monitoring.

(13) 40 CFR Part 76, Acid Rain Nitrogen Oxides Emission Reduction Program.

(14) 40 CFR Part 77, Excess Emissions.

(15) 40 CFR Part 78, Appeal Procedures for Acid Rain Program.

(16) 40 CFR Part 59 Subpart C, National Volatile Organic Compound Emission Standards for Consumer Products.

(17) 40 CFR Part 152 Subpart I, Classification of Pesticides.

(18) 49 CFR Part 172, Hazardous Materials Table. Special Provisions, Hazardous Materials Communications, Emergency Response Information, and Training Requirements, Subpart E, Labeling.

(19) 29 CFR Part 1926 Subpart F, Fire Protection and Prevention.

b. Copies may be obtained from: Superintendent of Documents, P.O. Box 371954, Pittsburgh, Pennsylvania 15250-7954; phone (202) 783-3238.

2. U.S. Environmental Protection Agency.

a. The following documents from the U.S. Environmental Protection Agency are incorporated herein by reference:

(1) Reich Test, Atmospheric Emissions from Sulfuric Acid Manufacturing Processes, Public Health Service Publication No. PB82250721, 1980.

(2) Compilation of Air Pollutant Emission Factors (AP-42). Volume I: Stationary and Area Sources, stock number 055-000-00500-1, 1995; Supplement A, stock number 055-000-00551-6, 1996; Supplement B, stock number 055-000-00565, 1997; Supplement C, stock number 055-000-00587-7, 1997; Supplement D, 1998; Supplement E, 1999.

(3) "Guidelines for Determining Capture Efficiency" (GD-35), Emissions Monitoring and Analysis Division, Office of Air Quality Planning and Standards, January 9, 1995.

b. Copies of the document identified in subdivision E 2 a (1) of this subdivision, and Volume I and Supplements A through C of the document identified in subdivision E 2 a (2) of this subdivision, may be obtained from: U.S. Department of Commerce, National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161; phone 1-800-553-6847. Copies of Supplements D and E of the document identified in subdivision E 2 a (2) of this subdivision may be obtained online from EPA's Technology Transfer Network at http://www.epa.gov/ttn/index.html. Copies of the document identified in subdivision E 2 a (3) of this subdivision are only available online from EPA's Technology Transfer Network at http://www.epa.gov/ttn/emc/guidlnd.html.

3. U.S. government.

a. The following document from the U.S. government is incorporated herein by reference: Standard Industrial Classification Manual, 1987 (U.S. Government Printing Office stock number 041-001-00-314-2).

b. Copies may be obtained from: Superintendent of Documents, P.O. Box 371954, Pittsburgh, Pennsylvania 15250-7954; phone (202) 512-1800.

4. American Society for Testing and Materials (ASTM).

a. The documents specified below from the American Society for Testing and Materials are incorporated herein by reference.

(1) D323-99a, "Standard Test Method for Vapor Pressure of Petroleum Products (Reid Method)."

(2) D97-96a, "Standard Test Method for Pour Point of Petroleum Products."

(3) D129-00, "Standard Test Method for Sulfur in Petroleum Products (General Bomb Method)."

(4) D388-99, "Standard Classification of Coals by Rank."

(5) D396-98, "Standard Specification for Fuel Oils."

(6) D975-98b, "Standard Specification for Diesel Fuel Oils."

(7) D1072-90(1999), "Standard Test Method for Total Sulfur in Fuel Gases."

(8) D1265-97, "Standard Practice for Sampling Liquefied Petroleum (LP) Gases (Manual Method)."

(9) D2622-98, "Standard Test Method for Sulfur in Petroleum Products by Wavelength Dispersive X-Ray Fluorescence Spectrometry."

(10) D4057-95(2000), "Standard Practice for Manual Sampling of Petroleum and Petroleum Products."

(11) D4294-98, "Standard Test Method for Sulfur in Petroleum and Petroleum Products by Energy-Dispersive X-Ray Fluorescence Spectroscopy."

(12) D523-89, "Standard Test Method for Specular Gloss" (1999).

(13) D1613-02, "Standard Test Method for Acidity in Volatile Solvents and Chemical Intermediates Used in Paint, Varnish, Lacquer and Related Products" (2002).

(14) D1640-95, "Standard Test Methods for Drying, Curing, or Film Formation of Organic Coatings at Room Temperature" (1999).

(15) E119-00a, "Standard Test Methods for Fire Tests of Building Construction Materials" (2000).

(16) E84-01, "Standard Test Method for Surface Burning Characteristics of Building Construction Materials" (2001).

(17) D4214-98, "Standard Test Methods for Evaluating the Degree of Chalking of Exterior Paint Films" (1998).

(18) D86-04b, "Standard Test Method for Distillation of Petroleum Products at Atmospheric Pressure" (2004).

(19) D4359-90, "Standard Test Method for Determining Whether a Material is a Liquid or a Solid" (reapproved 2000).

(20) E260-96, "Standard Practice for Packed Column Gas Chromatography" (reapproved 2001).

(21) D3912-95, "Standard Test Method for Chemical Resistance of Coatings Used in Light-Water Nuclear Power Plants" (reapproved 2001).

(22) D4082-02, "Standard Test Method for Effects of Gamma Radiation on Coatings for Use in Light-Water Nuclear Power Plants."

(23) F852-99, "Standard Specification for Portable Gasoline Containers for Consumer Use" (reapproved 2006).

(24) F976-02, "Standard Specification for Portable Kerosine and Diesel Containers for Consumer Use."

(25) D4457-02, "Standard Test Method for Determination of Dichloromethane and 1,1,1-Trichloroethane in Paints and Coatings by Direct Injection into a Gas Chromatograph" (reapproved 2008).

(26) D3792-05, "Standard Test Method for Water Content of Coatings by Direct Injection Into a Gas Chromatograph."

(27) D2879-97, "Standard Test Method for Vapor Pressure-Temperature Relationship and Initial Decomposition Temperature of Liquids by Isoteniscope" (reapproved 2007).

b. Copies may be obtained from: American Society for Testing Materials, 100 Barr Harbor Drive, West Conshohocken, Pennsylvania 19428-2959; phone (610) 832-9585.

5. American Petroleum Institute (API).

a. The following document from the American Petroleum Institute is incorporated herein by reference: Evaporative Loss from Floating Roof Tanks, API MPMS Chapter 19, April 1, 1997.

b. Copies may be obtained from: American Petroleum Institute, 1220 L Street, Northwest, Washington, D.C. 20005; phone (202) 682-8000.

6. American Conference of Governmental Industrial Hygienists (ACGIH).

a. The following document from the ACGIH is incorporated herein by reference: 1991-1992 Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices (ACGIH Handbook).

b. Copies may be obtained from: ACGIH, 1330 Kemper Meadow Drive, Suite 600, Cincinnati, Ohio 45240; phone (513) 742-2020.

7. National Fire Prevention Association (NFPA).

a. The documents specified below from the National Fire Prevention Association are incorporated herein by reference.

(1) NFPA 385, Standard for Tank Vehicles for Flammable and Combustible Liquids, 2000 Edition.

(2) NFPA 30, Flammable and Combustible Liquids Code, 2000 Edition.

(3) NFPA 30A, Code for Motor Fuel Dispensing Facilities and Repair Garages, 2000 Edition.

b. Copies may be obtained from the National Fire Prevention Association, One Batterymarch Park, P.O. Box 9101, Quincy, Massachusetts 02269-9101; phone (617) 770-3000.

8. American Society of Mechanical Engineers (ASME).

a. The documents specified below from the American Society of Mechanical Engineers are incorporated herein by reference.

(1) ASME Power Test Codes: Test Code for Steam Generating Units, Power Test Code 4.1-1964 (R1991).

(2) ASME Interim Supplement 19.5 on Instruments and Apparatus: Application, Part II of Fluid Meters, 6th edition (1971).

(3) Standard for the Qualification and Certification of Resource Recovery Facility Operators, ASME QRO-1-1994.

b. Copies may be obtained from the American Society of Mechanical Engineers, Three Park Avenue, New York, New York 10016; phone (800) 843-2763.

9. American Hospital Association (AHA).

a. The following document from the American Hospital Association is incorporated herein by reference: An Ounce of Prevention: Waste Reduction Strategies for Health Care Facilities, AHA Catalog no. W5-057007, 1993.

b. Copies may be obtained from: American Hospital Association, One North Franklin, Chicago, IL 60606; phone (800) 242-2626.

10. Bay Area Air Quality Management District (BAAQMD).

a. The following documents from the Bay Area Air Quality Management District are incorporated herein by reference:

(1) Method 41, "Determination of Volatile Organic Compounds in Solvent-Based Coatings and Related Materials Containing Parachlorobenzotrifluoride" (December 20, 1995).

(2) Method 43, "Determination of Volatile Methylsiloxanes in Solvent-Based Coatings, Inks, and Related Materials" (November 6, 1996).

b. Copies may be obtained from: Bay Area Air Quality Management District, 939 Ellis Street, San Francisco, CA 94109, phone (415) 771-6000.

11. South Coast Air Quality Management District (SCAQMD).

a. The following documents from the South Coast Air Quality Management District are incorporated herein by reference:

(1) Method 303-91, "Determination of Exempt Compounds," in Manual SSMLLABM, "Laboratory Methods of Analysis for Enforcement Samples" (1996).

(2) Method 318-95, "Determination of Weight Percent Elemental Metal in Coatings by X-Ray Diffraction," in Manual SSMLLABM, "Laboratory Methods of Analysis for Enforcement Samples" (1996).

(3) Rule 1174 Ignition Method Compliance Certification Protocol (February 28, 1991).

(4) Method 304-91, "Determination of Volatile Organic Compounds (VOC) in Various Materials," in Manual SSMLLABM, "Laboratory Methods of Analysis for Enforcement Samples" (1996).

(5) Method 316A-92, "Determination of Volatile Organic Compounds (VOC) in Materials Used for Pipes and Fittings" in Manual SSMLLABM, "Laboratory Methods of Analysis for Enforcement Samples" (1996).

(6) "General Test Method for Determining Solvent Losses from Spray Gun Cleaning Systems," October 3, 1989.

b. Copies may be obtained from: South Coast Air Quality Management District, 21865 E. Copley Drive, Diamond Bar, CA 91765, phone (909) 396-2000.

12. California Air Resources Board (CARB).

a. The following documents from the California Air Resources Board are incorporated herein by reference:

(1) Test Method 510, "Automatic Shut-Off Test Procedure for Spill-Proof Systems and Spill-Proof Spouts" (July 6, 2000).

(2) Test Method 511, "Automatic Closure Test Procedure for Spill-Proof Systems and Spill-Proof Spouts" (July 6, 2000).

(3) Method 100, "Procedures for Continuous Gaseous Emission Stack Sampling" (July 28, 1997).

(4) Test Method 513, "Determination of Permeation Rate for Spill-Proof Systems" (July 6, 2000).

(5) Method 310, "Determination of Volatile Organic Compounds (VOC) in Consumer Products and Reactive Organic Compounds in Aerosol Coating Products (Including Appendices A and B)" (May 5, 2005).

(6) California Code of Regulations, Title 17, Division 3, Chapter 1, Subchapter 8.5, Article 1, § 94503.5 (2003).

(7) California Code of Regulations, Title 17, Division 3, Chapter 1, Subchapter 8.5, Article 2, §§ 94509 and 94511 (2003).

(8) California Code of Regulations, Title 17, Division 3, Chapter 1, Subchapter 8.5, Article 4, §§ 94540-94555 (2003).

(9) "Certification Procedure 501 for Portable Fuel Containers and Spill-Proof Spouts, CP-501" (July 26, 2006).

(10) "Test Procedure for Determining Integrity of Spill-Proof Spouts and Spill-Proof Systems, TP-501" (July 26, 2006).

(11) "Test Procedure for Determining Diurnal Emissions from Portable Fuel Containers, TP-502" (July 26, 2006).

b. Copies may be obtained from: California Air Resources Board, P.O. Box 2815, Sacramento, CA 95812, phone (906) 322-3260 or (906) 322-2990.

13. American Architectural Manufacturers Association.

a. The following documents from the American Architectural Manufacturers Association are incorporated herein by reference:

(1) Voluntary Specification 2604-02, "Performance Requirements and Test Procedures for High Performance Organic Coatings on Aluminum Extrusions and Panels" (2002).

(2) Voluntary Specification 2605-02, "Performance Requirements and Test Procedures for Superior Performing Organic Coatings on Aluminum Extrusions and Panels" (2002).

b. Copies may be obtained from: American Architectural Manufacturers Association, 1827 Walden Office Square, Suite 550, Schaumburg, IL 60173, phone (847) 303-5664.

14. American Furniture Manufacturers Association.

a. The following document from the American Furniture Manufacturers Association is incorporated herein by reference: Joint Industry Fabrics Standards Committee, Woven and Knit Residential Upholstery Fabric Standards and Guidelines (January 2001).

b. Copies may be obtained from: American Furniture Manufacturers Association, P.O. Box HP-7, High Point, NC 27261; phone (336) 884-5000.

9VAC5-30-70. Nitrogen dioxide Oxides of nitrogen with nitrogen dioxide as the indicator.

A. The primary and secondary annual ambient air quality standard is 0.053 parts per million (100 micrograms per cubic meter) -- annual arithmetic mean concentration 53 parts per billion (ppb), annual average concentration, measured in the ambient air as nitrogen dioxide.

B. The primary 1-hour ambient air quality standard is 100 ppb, 1-hour average concentration, annual arithmetic mean concentration.

C. The secondary ambient air quality standard is 0.053 parts per million (ppm) (100 micrograms per cubic meter), annual arithmetic mean concentration.

D. The levels of the standards Nitrogen dioxide shall be measured by the a reference method described in based on Appendix F of 40 CFR Part 50, or other method designated as such, or by an equivalent method by a federal equivalent method (FEM) designated in accordance with 40 CFR Part 53.

C. The standards are attained when the annual arithmetic mean concentration in a calendar year is less than or equal to 0.053 ppm, rounded to three decimal places (fractional parts equal to or greater than 0.0005 ppm must be rounded up). To demonstrate attainment, an annual mean must be based upon hourly data that are at least 75% complete or upon data derived from manual methods that are at least 75% complete for the scheduled sampling days in each calendar quarter E. The annual primary standard is met when the annual average concentration in a calendar year is less than or equal to 53 ppb, as determined in accordance with Appendix S of 40 CFR Part 50 for the annual standard.

F. The 1-hour primary standard is met when the three-year average of the annual 98th percentile of the daily maximum 1-hour average concentration is less than or equal to 100 ppb, as determined in accordance with Appendix S of 40 CFR Part 50 for the 1-hour standard.

G. The secondary standard is attained when the annual arithmetic mean concentration in a calendar year is less than or equal to 0.053 ppm, rounded to three decimal places (fractional parts equal to or greater than 0.0005 ppm must be rounded up). To demonstrate attainment, an annual mean shall be based upon hourly data that are at least 75% complete or upon data derived from manual methods that are at least 75% complete for the scheduled sampling days in each calendar quarter.

Title of Regulation: 9VAC5-140. Regulation for Emissions Trading Programs (repealing 9VAC5-140-1061, 9VAC5-140-1062, 9VAC5-140-2061, 9VAC5-140-2062, 9VAC5-140-3061, 9VAC5-140-3062).

Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the federal Clean Air Act; 40 CFR Part 51.

Effective Date: August 18, 2010.

Agency Contact: Mary L. Major, Department of Environmental Quality, P.O. Box 10009, Richmond, VA 23240, telephone (804) 698-4423, FAX (804) 698-4510, TTY (804) 698-4021, or email mary.major@deq.virginia.gov.

Background:

The State Air Pollution Control Board adopted final regulations to implement the provisions of the Code of Virginia that address compliance in nonattainment areas for the state Clean Air Interstate Rule (CAIR) program in 2007. The regulations were adopted under the authority of the Code of Virginia that addressed compliance in nonattainment areas for the state CAIR program, as set forth in Chapters 867 and 920 the 2006 Acts of Assembly. A petition was filed; the effective date of the regulations was suspended, and litigation over the provisions continued through 2008 and 2009. On February 25, 2010, a final decision of the Court of Appeals of Virginia remanded the regulation and vacated the nonattainment provisions in both the Nitrogen Oxides (NO_X) Annual Trading Program (9VAC5-140-1061) and the NO_X Ozone Season Trading Program (9VAC5-140-2061). Chapters 783 and 867 of the 2010 Acts of Assembly amended § 10.1-1328 A 5 by removing the board's authority to restrict the purchase of allowances for compliance obligations for NO_X and sulfur dioxide (SO₂) sources in nonattainment areas. Therefore, the nonattainment provisions of 9VAC5-140-3061 of Article 5 (CAIR SO₂ Allowance Allocations) of the SO₂ Annual Trading Program are not consistent with the Code of Virginia.

Summary:

Based upon a final decision of the Court of Appeals of Virginia and amendments to the Code of Virginia, this action repeals regulations that implement the provisions of the Code of Virginia that address compliance in nonattainment areas for the state CAIR program.

9VAC5-140-1061. Nonattainment area requirements. (Repealed.)

A. The following requirements apply to any CAIR NO_X unit located in a nonattainment area designated in 9VAC5-20-204:

1. No owner, operator or other person shall cause or permit to be discharged into the atmosphere from any CAIR NO_X unit any NO_X emissions in excess of the NO_X annual emissions cap. For each control period, the NO_X annual emissions cap shall be equal to the number of NO_X allowances (expressed in tons) allocated for the CAIR NO_X unit for the control period in accordance with 9VAC5-140-1420.

2. A CAIR NO_X unit shall be subject to the requirements under subdivision 1 of this subsection for the control period starting on the later of January 1, 2009, or the deadline for meeting the unit's monitor certification requirements under 9VAC5-140-1700 C 1, 2, or 5 and for each control period thereafter.

3. Compliance with the NO_X annual emissions cap in subdivision 1 of this subsection shall be based on a comparison of (i) the total NO_X emissions (expressed in tons) from each CAIR NO_X unit during the control period, as determined in accordance with Article 8 (9VAC5-140-1700 et seq.) of this part and (ii) the NO_X annual emissions cap.

4. The owner or operator of a CAIR NO_X unit subject to this section shall be in violation of this subsection if the owner or operator fails to submit by April 1 of each year for the preceding control period (i) documentation to verify compliance with the NO_X annual emissions cap set forth in subdivision 1 of this subsection or (ii) a NO_X emissions compliance demonstration in accordance with 9VAC5-140-1062.

B. Nothing in this part shall prevent the permitting authority from issuing a nonattainment area permit under the authority and procedures of the state operating permit program in order to:

1. Cap the emissions of a CAIR NO_X unit or CAIR NO_X source contributing to a violation of any air quality standard or a nonattainment condition;

2. Remedy a situation that may cause or contribute to nonattainment condition or the endangerment of human health or welfare; or

3. Establish a source-specific emission standard or other requirements necessary to implement the federal Clean Air Act or the Virginia Air Pollution Control Law.

C. Nothing in this part shall prevent the permitting authority from including in any nonattainment area permit issued to implement subdivision B 1 of this section any terms and conditions that would prohibit any CAIR NO_X unit or CAIR NO_X source subject to this part from engaging in any emissions trading activities or using any emissions credits obtained from emissions reductions external to the CAIR NO_X unit or CAIR NO_X source to comply with the requirements of subsection A of this section or any nonattainment area permit issued pursuant to subdivision B 1 of this section except that such terms and conditions may not prohibit any CAIR NO_X unit or CAIR NO_X source subject to this part from engaging in any emissions trading activities unrelated to compliance with the requirements of subsection A of this section or any nonattainment area permit issued pursuant to subdivision B 1 of this section.

D. Nothing in this section shall be construed to prohibit any CAIR NO_X unit or CAIR NO_X source from participating in the CAIR NO_X Annual Trading Program. Notwithstanding any other provision of this section or any regulation of the board, the permitting authority may not include in any permit any terms and conditions that restrict any emissions trading activities under the CAIR NO_X Annual Trading Program. Compliance with the CAIR NO_X Annual Trading Program and this section (including any nonattainment area permits issued pursuant to this section) shall be determined separately and in accordance with the terms of the provisions of each.

E. The provisions of subsection A of this section shall not apply once an area is no longer listed in 9VAC5-20-204 as nonattainment for any pollutant; however, regardless of the attainment status of the area, any nonattainment area permits issued to implement this section shall remain in effect until revoked by the permitting authority.

F. The provisions of subsection A of this section shall not apply to any CAIR NO_X unit commencing operation on or after January 1, 2006, until the later of (i) January 1, 2014, or (ii) the unit has operated each calendar year during a period of at least five consecutive calendar years.

9VAC5-140-1062. NO_X emissions compliance demonstration. (Repealed.)

A. Compliance with the NO_X annual emissions cap set forth in 9VAC5-140-1061 A 1 may also be achieved through a NO_X emissions compliance demonstration meeting the requirements of this section.

B. The NO_X emissions compliance demonstration submitted pursuant to this section may include one or more CAIR NO_X units in a CAIR NO_X source under common control and located in the nonattainment area.

C. NO_X emissions compliance demonstrations shall be submitted to the permitting authority by April 1 of each year for the preceding control period.

D. A complete NO_X emissions compliance demonstration shall include the following elements in a format acceptable to the permitting authority:

1. Identification of each CAIR NO_X unit in the NO_X emissions compliance demonstration.

2. The number of NO_X allowances (expressed in tons) allocated for each CAIR NO_X unit for the preceding control period.

3. The total NO_X emissions (expressed in tons) from each CAIR NO_X unit during the preceding control period.

4. The calculation for the equation in subsection E of this section.

E. Compliance with this section shall be demonstrated with the following equation:

where:

n is the number of CAIR NO_X units in the NO_X emissions compliance demonstration (n may equal 1).

Σ is the sum of all i CAIR NO_X units.

i is a CAIR NO_X unit identified in subsection B of this section.

ANOE (Actual Nitrogen Oxides Emissions) are the total NO_X emissions (expressed in tons) from each CAIR NO_X unit during the preceding control period, as determined in accordance with Article 8 (9VAC5-140-1700 et seq.) of this part.

X is the number of NO_X allowances (expressed in tons) allocated for the CAIR NO_X unit for the preceding control period in accordance with 9VAC5-140-1420.

F. The emissions measurements recorded and reported in accordance with Article 8 (9VAC5-140-1700 et seq.) of this part shall be used to determine compliance by each CAIR NO_X source with the NO_X annual emissions cap set forth in 9VAC5-140-1061 A.

9VAC5-140-2061. Nonattainment area requirements. (Repealed.)

A. The following requirements apply to any CAIR NO_X Ozone Season unit located in a nonattainment area designated in 9VAC5-20-204:

1. No owner, operator or other person shall cause or permit to be discharged into the atmosphere from any CAIR NO_X Ozone Season unit any NO_X emissions in excess of the NO_X Ozone Season emissions cap. For each control period, the NO_X Ozone Season emissions cap shall be equal to the number of NO_X allowances (expressed in tons) allocated for the CAIR NO_X Ozone Season unit for the control period in accordance with 9VAC5-140-2420.

2. A CAIR NO_X Ozone Season unit shall be subject to the requirements under subdivision 1 of this subsection for the control period starting on the later of May 1, 2009, or the deadline for meeting the unit's monitor certification requirements under 9VAC5-140-2700 C 1, 2, 3 or 7 and for each control period thereafter.

3. Compliance with the NO_X Ozone Season emissions cap in subdivision 1 of this subsection shall be based on a comparison of (i) the total NO_X emissions (expressed in tons) from each CAIR NO_X Ozone Season unit during the control period, as determined in accordance with Article 8 (9VAC5-140-2700 et seq.) of this part and (ii) NO_x Ozone Season emissions cap.

4. The owner or operator of a CAIR NO_X Ozone Season unit subject to this section shall be in violation of this subsection if the owner or operator fails to submit by January 1 of each year for the preceding control period (i) documentation to verify compliance with the NO_X Ozone Season emissions cap set forth in subdivision 1 of this subsection or (ii) a NO_X emissions compliance demonstration in accordance with 9VAC5-140-2062.

B. Nothing in this part shall prevent the permitting authority from issuing a nonattainment area permit under the authority and procedures of the state operating permit program in order to:

1. Cap the emissions of a CAIR NO_X Ozone Season unit or CAIR NO_X Ozone Season source contributing to a violation of any air quality standard or a nonattainment condition;

2. Remedy a situation that may cause or contribute to nonattainment condition or the endangerment of human health or welfare; or

3. Establish a source-specific emission standard or other requirements necessary to implement the federal Clean Air Act or the Virginia Air Pollution Control Law.

C. Nothing in this part shall prevent the permitting authority from including in any nonattainment area permit issued to implement subdivision B 1 of this section any terms and conditions that would prohibit any CAIR NO_X Ozone Season unit or CAIR NO_X Ozone Season source subject to this part from engaging in any emissions trading activities or using any emissions credits obtained from emissions reductions external to the CAIR NO_X Ozone Season unit or CAIR NO_X Ozone Season source to comply with the requirements of subsection A of this section or any nonattainment area permit issued pursuant to subdivision B 1 of this section except that such terms and conditions may not prohibit any CAIR NO_X Ozone Season unit or CAIR NO_X Ozone Season source subject to this part from engaging in any emissions trading activities unrelated to compliance with the requirements of subsection A of this section or any nonattainment area permit issued pursuant to subdivision B 1 of this section.

D. Nothing in this section shall be construed to prohibit any CAIR NO_X Ozone Season unit or CAIR NO_X Ozone Season source from participating in the CAIR NO_X Ozone Season Trading Program. Notwithstanding any other provision of this section or any regulation of the board, the permitting authority may not include in any permit any terms and conditions that restrict any emissions trading activities under the CAIR NO_X Ozone Season Trading Program. Compliance with the CAIR NO_X Ozone Season Trading Program and this section (including any nonattainment area permits issued pursuant to this section) shall be determined separately and in accordance with the terms of the provisions of each.

E. The provisions of subsection A of this section shall not apply once an area is no longer listed in 9VAC5-20-204 as nonattainment for any pollutant; however, regardless of the attainment status of the area, any nonattainment area permits issued to implement this section shall remain in effect until revoked by the permitting authority.

F. The provisions of subsection A of this section shall not apply to any CAIR NO_X Ozone Season unit commencing operation on or after January 1, 2006, until the later of (i) January 1, 2014, or (ii) the unit has operated each calendar year during a period of at least five consecutive calendar years.

9VAC5-140-2062. NOX emissions compliance demonstration. (Repealed.)

A. Compliance with the NO_X Ozone Season emissions cap set forth in 9VAC5-140-2061 A 1 may also be achieved through a NO_X emissions compliance demonstration meeting the requirements of this section.

B. The NO_X emissions compliance demonstration submitted pursuant to this section may include one or more CAIR NO_X Ozone Season units in a CAIR NO_X Ozone Season source under common control and located in the nonattainment area.

C. NO_X emissions compliance demonstrations shall be submitted to the permitting authority by January 1 of each year for the preceding control period.

D. A complete NO_X emissions compliance demonstration shall include the following elements in a format acceptable to the permitting authority:

1. Identification of each CAIR NO_X Ozone Season unit in the NO_X emissions compliance demonstration.

2. The number of NO_X allowances (expressed in tons) allocated for each CAIR NO_X Ozone Season unit for the preceding control period.

3. The total NO_X emissions (expressed in tons) from each CAIR NO_X Ozone Season unit during the preceding control period.

4. The calculation for the equation in subsection E of this section.

E. Compliance with this section shall be demonstrated with the following equation:

where:

n is the number of CAIR NO_X Ozone Season units in the NO_X emissions compliance demonstration (n may equal 1).

Σ is the sum of all i CAIR NO_X Ozone Season units.

i is a CAIR NO_X Ozone Season unit identified in subsection B of this section.

ANOE (Actual Nitrogen Oxides Emissions) are the total NO_X emissions (expressed in tons) from each CAIR NO_X Ozone Season unit during the preceding control period, as determined in accordance with Article 8 (9VAC5-140-2700 et seq.) of this part.

X is the number of NO_X allowances (expressed in tons) allocated for the CAIR NO_X Ozone Season unit for the preceding control period in accordance with 9VAC5-140-2420.

F. The emissions measurements recorded and reported in accordance with Article 8 (9VAC5-140-2700 et seq.) of this part shall be used to determine compliance by each CAIR NO_X Ozone Season source with the NO_X Ozone Season emissions cap set forth in 9VAC5-140-2061 A.

9VAC5-140-3061. Nonattainment area requirements. (Repealed.)

A. The following requirements apply to any CAIR SO₂ unit located in a nonattainment area designated in 9VAC5-20-204:

1. No owner, operator or other person shall cause or permit to be discharged into the atmosphere from any CAIR SO₂ unit any SO₂ emissions in excess of the SO₂ annual emissions cap. For each control period, the SO₂ annual emissions cap shall be equal to the number of SO₂ allowances (expressed in tons) allocated for the CAIR SO₂ unit for the control period in accordance with 9VAC5-140-3420.

2. A CAIR SO₂ unit shall be subject to the requirements under subdivision 1 of this subsection for the control period starting on the later of January 1, 2010, or the deadline for meeting the unit's monitor certification requirements under 9VAC5-140-3700 C 1, 2, or 5 and for each control period thereafter.

3. Compliance with the SO₂ annual emissions cap in subdivision 1 of this subsection shall be based on a comparison of (i) the total SO₂ emissions (expressed in tons) from each CAIR SO₂ unit during the control period, as determined in accordance with Article 8 (9VAC5-140-3700 et seq.) of this part, and (ii) the SO₂ annual emissions cap.

4. The owner or operator of a CAIR SO₂ unit subject to this section shall be in violation of this subsection if the owner or operator fails to submit by April 1 of each year for the preceding control period (i) documentation to verify compliance with the SO₂ annual emissions cap set forth in subdivision 1 of this subsection or (ii) an SO₂ emissions compliance demonstration in accordance with 9VAC5-140-3062.

B. Nothing in this part shall prevent the permitting authority from issuing a nonattainment area permit under the authority and procedures of the state operating permit program in order to:

1. Cap the emissions of a CAIR SO₂ unit or CAIR SO₂ source contributing to a violation of any air quality standard or a nonattainment condition;

2. Remedy a situation that may cause or contribute to nonattainment condition or the endangerment of human health or welfare; or

3. Establish a source-specific emission standard or other requirements necessary to implement the federal Clean Air Act or the Virginia Air Pollution Control Law.

C. Nothing in this part shall prevent the permitting authority from including in any nonattainment area permit issued to implement subdivision B 1 of this section any terms and conditions that would prohibit any CAIR SO₂ unit or CAIR SO₂ source subject to this part from engaging in any emissions trading activities or using any emissions credits obtained from emissions reductions external to the CAIR SO₂ unit or CAIR SO₂ source to comply with the requirements of subsection A of this section or any nonattainment area permit issued pursuant to subdivision B 1 of this section except that such terms and conditions may not prohibit any CAIR SO₂ unit or CAIR SO₂ source subject to this part from engaging in any emissions trading activities unrelated to compliance with the requirements of subsection A of this section or any nonattainment area permit issued pursuant to subdivision B 1 of this section.

D. Nothing in this section shall be construed to prohibit any CAIR SO₂ unit or CAIR SO₂ source from participating in the CAIR SO₂ Annual Trading Program. Notwithstanding any other provision of this section or any regulation of the board, the permitting authority may not include in any permit any terms and conditions that restrict any emissions trading activities under the CAIR SO₂ Annual Trading Program. Compliance with the CAIR SO₂ Annual Trading Program and this section (including any nonattainment area permits issued pursuant to this section) shall be determined separately and in accordance with the terms of the provisions of each.

E. The provisions of subsection A of this section shall not apply once an area is no longer listed in 9VAC5-20-204 as nonattainment for any pollutant; however, regardless of the attainment status of the area, any nonattainment area permits issued to implement this section shall remain in effect until revoked by the permitting authority.

F. The provisions of subsection A of this section shall not apply to any CAIR SO₂ unit for which no SO₂ allowances are allocated in accordance with 9VAC5-140-3420.

9VAC5-140-3062. SO₂ emissions compliance demonstration. (Repealed.)

A. Compliance with the SO₂ annual emissions cap set forth in 9VAC5-140-3061 A 1 may also be achieved through an SO₂ emissions compliance demonstration meeting the requirements of this section.

B. The SO₂ emissions compliance demonstration submitted pursuant to this section may include one or more CAIR SO₂ units in a CAIR SO₂ source under common control and located in the nonattainment area.

C. SO₂ emissions compliance demonstrations shall be submitted to the permitting authority by April 1 of each year for the preceding control period.

D. A complete SO₂ emissions compliance demonstration shall include the following elements in a format acceptable to the permitting authority:

1. Identification of each CAIR SO₂ unit in the SO₂ emissions compliance demonstration.

2. The number of SO₂ allowances (expressed in tons) allocated for each CAIR SO₂ unit for the preceding control period.

3. The total SO₂ emissions (expressed in tons) from each CAIR SO₂ unit during the preceding control period.

4. The calculation for the equation in subsection E of this section.

E. Compliance with this section shall be demonstrated with the following equation:

where:

n is the number of CAIR SO₂ units in the SO₂ emissions compliance demonstration (n may equal 1).

Σ is the sum of all i CAIR SO₂ units.

i is a CAIR SO₂ unit identified in subsection B of this section.

ASDE (Actual Sulfur Dioxide Emissions) are the total SO₂ emissions (expressed in tons) from each CAIR SO₂ unit during the preceding control period, as determined in accordance with Article 8 (9VAC5-140-3700 et seq.) of this part.

X is the number of SO₂ allowances (expressed in tons) allocated for the CAIR SO₂ unit for the preceding control period in accordance with 9VAC5-140-3420.

F. The emissions measurements recorded and reported in accordance with Article 8 (9VAC5-140-3700 et seq.) of this part shall be used to determine compliance by each CAIR SO₂ source with the SO₂ annual emissions cap set forth in 9VAC5-140-3061 A.

Title of Regulation: 9VAC20-90. Solid Waste Management Permit Action Fees and Annual Fees (amending 9VAC20-90-65, 9VAC20-90-115, 9VAC20-90-130; adding 9VAC20-90-114).

Statutory Authority: § 10.1-1402 of the Code of Virginia.

Effective Date: August 18, 2010.

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 gary.graham@deq.virginia.gov.

Summary:

The amendments implement the provisions of budget Item 354 of Chapter 874 of the 2010 Acts of Assembly by increasing the amount of nonhazardous solid waste annual fees assessed and making a change in the method of determining those annual fees in order to recover $1,250,000 of revenue removed from general fund appropriations by the 2010 Acts of Assembly. In addition, this action ensures that annual fees continue to cover a portion of the direct costs for processing, compliance, and enforcement of permits issued for the disposal, treatment, or storage of nonhazardous solid waste. This action also provides for a cap on the total amount of fees collected.

9VAC20-90-65. Payment of annual fees.

A. Operators of permitted solid waste management facilities shall pay annual fees based on the requirements of this part section. An annual fee is required for each activity occurring at a permitted facility.

1. Annual fees, including those that are based on annual tonnage, shall be calculated using the procedures in 9VAC20-90-114 and 9VAC20-90-115.

2. For facilities engaged in multiple activities under the provisions of a single permit, an operator shall pay multiple annual fees. These activities and the associated fees are provided in Table 4.1 of 9VAC20-90-130.

3. Annual fees assessed for single or multiple activities conducted under a permit reflect the time and complexity of inspecting and monitoring the different categories of facilities identified in § 10.1-1402.1:1 of the Code of Virginia.

B. Due date.

1. Submission date. The department may bill the operator for amounts due or becoming due in the immediate future. Payments are due on or before October 1 or 30 days after receipt of a bill from the department, whichever comes later, unless the operator is using the deferred payment or quarter payment option. Each operator of a permitted waste management facility shall be assessed an annual fee as shown in Table 4.1 of 9VAC20-90-130. Except as specified in subdivisions subdivision 2 and 3 of this subsection, all annual fees are submitted on a yearly basis and are due on or before October 1 (for the preceding annual year). Annual fees, including those that are based on annual tonnage shall be calculated using the procedures in 9VAC20-90-115. Annual tonnage will be determined from the total amount of waste reported as having been either landfilled or incinerated on Form DEQ 50-25 for the preceding year pursuant to the Waste Information Assessment Program (9VAC20-80-115 and 9VAC20-130-165).

2. All fees to be paid in 2004 will be submitted on or before October 1, 2004, (for the 2003 annual year) unless the operator of a facility submits a written request to the department prior to that date requesting a deferred payment until January 1, 2005. Requests for deferral will be sent to the address listed in subdivision C 2 of this section. No deferred payment will be allowed for facilities opting to use a quarter payment schedule. Subsequent annual payments will be submitted on or before the first day of October (for the preceding annual year).

3. 2. Optional quarter payment. Facility operators that are required to pay annual fees exceeding $8,000 for single or multiple permits may submit four equal payments totaling the annual fee on or before October 1, January 1, April 1, and June 1. The annual payment cycle for quarter payments will begin with the October 1 payment and will end with the June 1 payment. Those facilities opting for the quarter payment schedule shall accompany all payments with a copy of DEQ form PF001.

4. 3. Late quarter payments. If the quarter payment is not paid by the deadline, DEQ may, in addition to seeking other remedies available under the law, issue a notice of failure to pay. The notice shall require payment of the entire remainder of the annual fee payment within 30 days of the date of the notice, or inform the owner that he is ineligible to opt for the quarter payment schedule until eligibility is reinstated by written notice from the department, or both.

C. Method of payment. 1. The operator of the facility shall send a payment transmittal letter to the Department of Environmental Quality. The letter shall contain the name and permit number of the facility, the Federal Identification Number (FIN) for the facility or operator, the amount of the annual fee, and for sanitary landfills and incinerators, the waste reported as landfilled or incinerated on Form DEQ 50-25 for the preceding year pursuant to the Waste Information Assessment Program (9VAC20-80-115 and 9VAC20-130-165). In addition, a copy of the transmittal letter will be placed in the facility's operating record. 2. Fees shall be paid by check, draft, or postal money order made payable to "Treasurer of Virginia/DEQ," and shall be sent to the Department of Environmental Quality, Receipts Control, P.O. Box 10150 1104, Richmond, VA 23240 23218. When the department is able to accept electronic payments, payments may be submitted electronically. The payment transmittal letter required in subdivision 1 of this subsection shall accompany the payment.

D. Incomplete payments. All incomplete payments will be deemed nonpayments.

E. Late payment of annual fee. Interest may be charged for late payments at the underpayment rate set out by the U.S. Internal Revenue Service established pursuant to Section 6621(a)(2) of the Internal Revenue Code. This rate is prescribed in § 58.1-15 of the Code of Virginia and is calculated on a monthly basis at the applicable periodic rate. A 10% late payment fee may be charged to any delinquent (over 90 days past due) account. The Department of Environmental Quality is entitled to all remedies available under the Code of Virginia in collecting any past due amount and may recover any attorney's fees and other administrative costs incurred in pursuing and collecting any past due amount.

F. Annual fees received by the department shall be deposited in the Virginia Waste Management Permit Program Fund and used exclusively for the solid waste management program as set forth in the Code of Virginia.

9VAC20-90-114. Annual fee calculation for noncaptive industrial landfills and construction and demolition debris landfills.

A. General. All persons operating a noncaptive industrial landfill or a construction and demolition debris landfill permitted under the regulations outlined in 9VAC20-90-50 shall submit annual fees according to the procedures provided in 9VAC20-90-65. Annual fees shall be calculated using the procedures provided in subsection B of this section. Fees shall be rounded to the nearest dollar.

B. Fee calculation. The amount of the annual fees to be submitted for a specified year shall be calculated according to the following formulae:

where:

F = the annual fee amount due for the specified calendar year, expressed in dollars.

B = the base fee rate for the type of facility determined as provided in subdivision 1 of this subsection, expressed in dollars.

∆CPI = the difference between CPI and 215.15 (the average of the Consumer Price Index values for all-urban consumers for the 12-month period ending on April 30, 2009), expressed as a proportion of 215.15.

CPI = the average of the Consumer Price Index values for all-urban consumers for the 12-month period ending on April 30 of the calendar year before the specified year for which the permit maintenance fee is due. (The Consumer Price Index for all-urban consumers is published by the U.S. Department of Labor, Bureau of Labor Statistics, U.S. All items, CUUR0000SA0).

1. Values for B (base fee rate) in Table 4.1 of 9VAC20-90-130 for construction and demolition debris landfills and noncaptive industrial landfills shall be calculated using the procedures in this subdivision. Annual tonnage will be determined from the total amount of waste reported as having been either landfilled or incinerated on Form DEQ 50-25 for the preceding year pursuant to the Waste Information Assessment Program (9VAC20-80-115 and 9VAC20-130-165). Base fee rates for construction and demolition debris landfills and noncaptive industrial landfills include the base tonnage fee rate plus an additional fee amount per ton of waste over the base tonnage that is landfilled based on the tonnage reported on the previous year's Solid Waste Information Reporting Table, Form DEQ 50-25.

a. For example, the base fee rate for a construction and demolition debris landfill that reported 120,580 tons of waste landfilled for the previous year is the $10,000 base tonnage fee rate for a facility landfilling 100,001 to 250,000 tons of waste, plus an additional fee amount of $0.09 per ton of waste landfilled over the base tonnage, as provided in Table 4.1 of 9VAC20-90-130. The base fee rate for this facility is $10,000 + [(120,580 tons - 100,001 tons) x $0.09/ton] = $11,852. The base tonnage fee rate and the additional fee amount per ton vary with the tonnage of the waste that the facility landfilled.

b. Tonnage used to determine the base fee rate shall be rounded to the nearest full ton of waste.

2. Calculation of the 2010 annual fee (F) for the construction and demolition debris landfill discussed in subdivision B 1 of this subsection is provided as an example:

CPI = 215.15 (the average of CPI values from May 1, 2008, to April 30, 2009, inclusive would be used for the 2010 annual fee calculation).

∆CPI = zero for the 2010 annual fee calculation (i.e., (CPI - 215.15)/215.15 = (215.15 - 215.15)/215.15 = 0). (Note: ∆CPI for other years would not be zero.)

C = 1.0 for the 2010 annual fee calculation (i.e., 1 + ∆CPI = 1 + 0 = 1.0).

B = $11,852 (i.e., the value of the base fee rate for the example construction and demolition debris landfill in subdivision 2 of this subsection).

F = $11,852 for the 2010 annual fee calculation for this example construction and demolition debris landfill (i.e., B x C = $11,852 x 1.0 = $11,852).

C. Weight/volume conversions. For facilities required to pay annual fees based on the tonnage of the waste landfilled or incinerated, the annual fee shall be based on the accurate weight of waste. If scales are unavailable, the volume of the waste landfilled or incinerated by the facility must be multiplied by 0.50 tons per cubic yard to determine the weight of the waste landfilled or incinerated. If the volume of waste is used to determine the tonnage of waste landfilled or incinerated, accurate and complete records of the waste received and managed must be maintained in addition to the calculated weight records described in this part. These records must be maintained onsite throughout the life of the facility and made available to the department upon request.

D. Emergency. The director may waive or reduce annual fees assessed during a state of emergency or for waste resulting from an emergency response action. A facility operator may request a determination if a given volume of waste landfilled or incinerated in a given calendar year qualifies for a waived or reduced fee by submitting documentation of the emergency to the regional office where the facility is located. The request will provide the name and permit number of the facility, a facility contact, the nature of the emergency or response action, a description of the waste, and an accurate accounting of the type and tonnage of waste managed as a result of the emergency. Requests for a determination by the director must be submitted by March 31 of the year following the emergency coincident with the solid waste information assessment report. A separate request shall be provided for each year if the emergency lasts for multiple years.

E. Annual fee discounts for environmental excellence program participants are set out in 9VAC20-90-117.

F. The operator of a facility owned by a private entity and subject to any fee imposed pursuant to this section shall collect such fee as a surcharge on any fee schedule established pursuant to law, ordinance, resolution, or contract for solid waste processing or disposal operations at the facility.

G. Closure. Facilities that remove all waste materials at the time of closure and are subject only to closure requirements are subject to payment of the annual fee if they were operating at any time during the calendar year.

H. Transition from closure to post-closure care. Landfills entering post-closure care will pay the full annual fee for an active facility if they were operating, inactive, or conducting closure activities at any time during the calendar year. Landfills in post-closure care for a full calendar year (January 1 through December 31) will pay the annual fee for post-closure care provided in Table 4.1 of 9VAC20-90-130. The post-closure care period will begin on the date provided in 9VAC20-80-250 E 7, 9VAC20-80-260 E 6, or 9VAC20-80-270 E 6 as applicable.

I. The total annual sum of annual fees and permit application fees collected by the board from sanitary landfills and other nonhazardous solid waste facilities shall not exceed 60% of the direct costs of (i) processing an application to issue, reissue, amend, or modify permits; and (ii) performing inspections and enforcement actions necessary to assure compliance with permits issued for any sanitary landfill and other facility for the disposal, treatment, or storage of nonhazardous solid waste. The director shall take whatever action is necessary to ensure that this limit is not exceeded.

9VAC20-90-115. Annual fee calculation for sanitary landfills, incinerators and other types of facilities.

A. General. All persons operating a sanitary landfill, an incinerator, or other another type of facility other than a noncaptive industrial landfill or construction and demolition debris landfill, that is permitted under the regulations outlined in 9VAC20-90-50 shall submit annual fees according to the procedures provided in 9VAC20-90-65. Annual fees are provided in Table 4.1, Annual Waste Management Facility Fees, in 9VAC20-90-130. Annual fees that include an additional fee based on tonnage shall be calculated using the procedures in this section. Annual tonnage will be determined from the total amount of waste reported as having been either landfilled or incinerated on Form DEQ 50-25 for the preceding year pursuant to the Waste Information Assessment Program (9VAC20-80-115 and 9VAC20-130-165). Annual fees shall be calculated using the procedures provided in subsection B of this section. Fees shall be rounded to the nearest dollar.

B. Fee calculation. The amount of the annual fees to be submitted for a specified year shall be calculated according to the following formulae:

where:

F = the annual fee amount due for the specified calendar year, expressed in dollars.

B = the base fee rate for the type of facility determined as provided in subdivisions 1, 2, and 3 of this subsection, expressed in dollars.

A = the direct cost adjustment factor.

P = 79

∆CPI = the difference between CPI and 215.15 (the average of the Consumer Price Index values for all-urban consumers for the 12-month period ending on April 30, 2009), expressed as a proportion of 215.15.

CPI = the average of the Consumer Price Index values for all-urban consumers for the 12-month period ending on April 30 of the calendar year before the specified year for which the permit maintenance fee is due. (The Consumer Price Index for all-urban consumers is published by the U.S. Department of Labor, Bureau of Labor Statistics, U.S. All items, CUUR0000SA0).

1. Values for B (base fee rate) are provided in Table 4.1, Base Fee Rates for Annual Waste Management Facility Fees, in 9VAC20-90-130.

2. Values for B (base fee rate) in Table 4.1 of 9VAC20-90-130 that are based on tonnage shall be calculated using the procedures in this subdivision. Annual tonnage will be determined from the total amount of waste reported as having been either landfilled or incinerated on Form DEQ 50-25 for the preceding year pursuant to the Waste Information Assessment Program (9VAC20-80-115 and 9VAC20-130-165).

Sanitary a. Base fee rates for sanitary landfills are required to submit include the base tonnage fee, rate plus a an additional fee amount per ton of waste over the base tonnage that is landfilled based on the tonnage reported on the previous year's Solid Waste Information Reporting Table, Form DEQ 50-25. For example, the base fee rate for a sanitary landfill that reported 120,580 tons of waste landfilled for the previous year is the $10,000 base tonnage fee rate for a facility landfilling 100,001 to 250,000 tons of waste, plus an additional fee amount of $0.09 per ton of waste landfilled over the base tonnage, as provided in Table 4.1 of 9VAC20-90-130. The base fee rate for this facility is $10,000 + [(120,580 tons - 100,001 tons) x $0.09/ton] = $11,852. The base tonnage fee rate and the additional fee amount per ton vary with the tonnage of the waste that the facility landfilled.

Incinerators are required to submit a fee b. Base fee rates for incinerators are based only on the amount of waste incinerated as reported on the previous year's Solid Waste Information Reporting Table, Form DEQ 50-25. For example, the base fee rate for an incinerator that reported 501,230 tons of waste incinerated for the previous year is $5,000 for a facility incinerating 100,001 or more tons of waste, as provided in Table 4.1 of 9VAC20-90-130. Incinerator fees vary with the tonnage of waste that the facility incinerated.

The tonnage c. Tonnage used in to determine the base fee calculation will rate shall be rounded to the nearest full ton of waste.

Other 3. Values for B (base fee rate) for other facilities are required to submit based only an annual fee based on the facility type. Fees shall be rounded to the nearest dollar. For example, the base fee rate in Table 4.1 of 9VAC20-90-130 for a composting facility is $500.

4. Calculation of the 2010 annual fee (F) for the composting facility discussed in subdivision B 3 of this subsection is provided as an example:

CPI = 215.15 (the average of CPI values from May 1, 2008, to April 30, 2009, inclusive would be used for the 2010 annual fee calculation).

∆CPI = zero for the 2010 annual fee calculation (i.e., (CPI - 215.15)/215.15 = (215.15 - 215.15)/215.15 = 0). (Note: ∆CPI for other years would not be zero.)

C = 1.0 for the 2010 annual fee calculation (i.e., 1 + ∆ CPI = 1 + 0 = 1.0).

B = $500 (i.e., the value of the base fee rate for the example composting facility in subdivision 3 of this subsection).

A = 1.79 (i.e., 1 + (P/100) = 1 + (79/100) = 1.79).

F = $895 for the 2010 annual fee calculation for this example composting facility (i.e., B x A x C = $500 x 1.79 x 1.0 = $895).

Examples:

1. A composting facility is required to submit only the base fee in Table 4.1.

Composting facility annual fee = base fee = $500.

2. A sanitary landfill that reported 120,580 tons landfilled on the Solid Waste Information Reporting Table, Form DEQ 50-25, from the previous year, is required to submit a base tonnage fee plus an additional fee per ton of waste over the base tonnage as provided in Table 4.1. The base fee and the fee per ton vary with the tonnage of the waste that the facility landfilled.

Sanitary landfill annual fee = base tonnage fee + (tonnage landfilled from previous year's waste information assessment—base tonnage) x fee per ton = $10,000 + (120,580 tons-100,001 tons) x $0.09/ton = $11,852.

3. An incinerator that reported 501,230 tons incinerated on the Solid Waste Information Reporting Table, Form DEQ 50-25, from the previous year, is required to submit the fee required in Table 4.1. Incinerator fees vary with the tonnage of waste that the facility incinerated.

Incinerator annual fee = annual fee associated with the tonnage incinerated = $5000.

C. Weight/volume conversions. For facilities required to pay annual fees based on the tonnage of the waste landfilled or incinerated, the annual fee shall be based on the accurate weight of waste. If scales are unavailable, the volume of the waste landfilled or incinerated by the facility must be multiplied by 0.50 tons per cubic yard to determine the weight of the waste landfilled or incinerated. If the volume of waste is used to determine the tonnage of waste landfilled or incinerated, accurate and complete records of the waste received and managed must be maintained in addition to the calculated weight records described in this part. These records must be maintained onsite throughout the life of the facility and made available to the department upon request.

D. Emergency. The director may waive or reduce annual fees assessed during a state of emergency or for waste resulting from an emergency response action. A facility operator may request a determination if a given volume of waste landfilled or incinerated in a given calendar year qualifies for a waived or reduced fee by submitting documentation of the emergency to the regional office where the facility is located. The request will provide the name and permit number of the facility, a facility contact, the nature of the emergency or response action, a description of the waste, and an accurate accounting of the type and tonnage of waste managed as a result of the emergency. Requests for a determination by the director must be submitted by March 31 of the year following the emergency coincident with the solid waste information assessment report. A separate request shall be provided for each year if the emergency lasts for multiple years.

E. Annual fee discounts for environmental excellence program participants are set out in 9VAC20-90-117.

F. The operator of a facility owned by a private entity and subject to any fee imposed pursuant to this section shall collect such fee as a surcharge on any fee schedule established pursuant to law, ordinance, resolution or contract for solid waste processing or disposal operations at the facility.

G. Closure. Facilities that remove all waste materials at the time of closure and are subject only to closure requirements are subject to payment of the annual fee if they were operating at any time during the calendar year.

H. Transition from closure to post-closure care. Landfills entering post-closure care will pay the full annual fee for an active facility if they were operating, were inactive or were conducting closure activities at any time during the calendar year. Landfills in post-closure care for a full calendar year (January 1 through December 31) will pay the annual fee for post-closure care provided in Table 4.1 of 9VAC20-90-130. The post-closure care period will begin on the date provided in 9VAC20-80-250 E 7, 9VAC20-80-260 E 6, or 9VAC20-80-270 E 6 as applicable.

I. The total annual sum of annual fees and permit application fees collected by the board from sanitary landfills and other nonhazardous solid waste facilities shall not exceed 60% of the direct costs of (i) processing an application to issue, reissue, amend, or modify permits; and (ii) performing inspections and enforcement actions necessary to assure compliance with permits issued for any sanitary landfill and other facility for the disposal, treatment, or storage of nonhazardous solid waste. The director shall take whatever action is necessary to ensure that this limit is not exceeded.

9VAC20-90-130. Annual Base fee rate schedules.

Title of Regulation: 9VAC25-20. Fees for Permits and Certificates (amending 9VAC25-20-142).

Statutory Authority: § 62.1-44.15:6 of the Code of Virginia.

Effective Date: August 18, 2010.

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 gary.graham@deq.virginia.gov.

Summary:

The amendments change the amount of permit maintenance fees assessed in order to recover $1,250,000 of revenue removed from general fund appropriations by the 2010 Acts of Assembly. The intent of this action is to ensure that permit maintenance fees continue to cover a portion of the direct costs for administration, compliance, and enforcement of the Virginia Pollutant Discharge Elimination System (VPDES) and the Virginia Pollution Abatement (VPA) permits. This action also provides for a cap on the amount of permit fees collected and revises the permit maintenance fee cap on certain public authorities with multiple facilities.

9VAC25-20-142. Permit maintenance fees.

A. The following annual permit maintenance fees apply to each individual VPDES and VPA permit, including expired permits that have been administratively continued, except those exempted by 9VAC25-20-50 B or 9VAC25-20-60 A 4:

1. Base fee rate for Virginia Pollutant Discharge Elimination System (VPDES) permitted facilities. (Note: All flows listed in the table below are facility "design" flows.)

2. Base fee rate for Virginia Pollution Abatement (VPA) permits. (Note: Land application rates listed in the table below are facility "design" rates.)

3. The amount of the annual permit maintenance fee due from the owner for VPDES and VPA permits for a specified year as required by 9VAC25-20-40 C shall be calculated according to the following formulae:

where:

F = the permit maintenance fee amount due for the specified calendar year, expressed in dollars.

B = the base fee rate for the type of VPDES or VPA permit from subdivisions 1 or 2 of this subsection, expressed in dollars.

C = the Consumer Price Index adjustment factor.

∆CPI = the difference between CPI and 215.15 (the average of the Consumer Price Index values for all-urban consumers for the 12-month period ending on April 30, 2009), expressed as a proportion of 215.15.

CPI = the average of the Consumer Price Index values for all-urban consumers for the 12-month period ending on April 30 of the calendar year before the specified year for which the permit maintenance fee is due. (The Consumer Price Index for all-urban consumers is published by the U.S. Department of Labor, Bureau of Labor Statistics, U.S. All items, CUUR0000SA0).

For example, if calculating the 2010 permit maintenance fee (F) for a VPDES Industrial Major source:

CPI = 215.15 (the average of CPI values from May 1, 2008, to April 30, 2009, inclusive would be used for the 2010 permit maintenance fee calculation).

∆CPI = zero for the 2010 permit maintenance fee calculation (i.e., (CPI - 215.15)/215.15 = (215.15 - 215.15)/215.15 = 0). (Note: ∆CPI for other years would not be zero.)

C = 1.0 for the 2010 permit maintenance fee calculation (i.e., 1 + ∆CPI = 1 + 0 = 1.0).

B = $7,876 (i.e. the value for a VPDES Industrial Major source, taken from subdivision 1 of this subsection).

F = $7,876 for the 2010 permit maintenance fee calculation for this VPDES Industrial Major source (i.e., $7,876 x 1.0 = $7,876).

4. Permit maintenance fees (F) calculated for each facility shall be rounded to the nearest dollar.

5. The total amount of permit fees collected by the board (permit maintenance fees plus permit application fees) shall not exceed 50% of direct costs for administration, compliance, and enforcement of VPDES and VPA permits. The director shall take whatever action is necessary to ensure that this limit is not exceeded.

B. Additional permit maintenance fees.

1. An additional permit maintenance fee of $1,000 shall be paid annually by permittees in a toxics management program. Any facility that performs acute or chronic biological testing for compliance with a limit or special condition requiring monitoring in a VPDES permit is included in the toxics management program.

2. An additional permit maintenance fee of $1,000 shall be paid annually by permittees that have more than five process wastewater discharge outfalls at a single facility (not including "internal" outfalls).

3. For a local government or public service authority with permits for multiple facilities in a single jurisdiction, the total permit maintenance fees for all permits held as of April 1, 2004, shall not exceed $20,000 $32,818 per year.

C. If the category of a facility (as described in 9VAC25-20-142 A 1 or 2) changes as the result of a permit modification, the permit maintenance fee based upon the permit category as of April 1 shall be submitted by October 1.

D. Annual permit maintenance fees may be discounted for participants in the Environmental Excellence Program as described in 9VAC25-20-145.

Title of Regulation: 9VAC25-110. Virginia Pollutant Discharge Elimination System (VPDES) General Permit for Domestic Sewage Discharges of Less Than or Equal to 1,000 Gallons Per Day (amending 9VAC25-110-10, 9VAC25-110-20, 9VAC25-110-60, 9VAC25-110-70, 9VAC25-110-80).

Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act, 40 CFR Parts 122, 123, and 124.

Public Hearing Information:

August 26, 2010 - 1 p.m. - Department of Environmental Quality, 629 East Main Street, 2nd Floor Conference Room, Richmond, VA

Public Comment Deadline: September 17, 2010.

Public Participation: In addition to any other comments, the board is seeking comments on the costs and benefits of the proposal, the potential impacts on the regulated community, and any impacts of the regulation on farm and forest land preservation. Also, the board is seeking information on impacts on small businesses as defined in § 2.2-4007.1 of the Code of Virginia. Information may include (i) projected reporting, recordkeeping, and other administrative costs, (ii) probable effect of the regulation on affected small businesses, and (iii) description of less intrusive or costly alternative methods of achieving the purpose of the regulation.

Anyone wishing to submit written comments for the public comment file may do so at the public hearing or by mail, email, or fax to George Cosby, Office of Regulatory Affairs, Department of Environmental Quality, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4067, fax (804) 698-4032, email george.cosby@deq.virginia.gov. Comments may also be submitted through the public forum feature of the Virginia Regulatory Town Hall website at www.townhall.virginia.gov. Written comments must include the name and address of the commenter. In order to be considered comments must be received by 11:59 p.m. on the date established as the close of the comment period.

Agency Contact: George Cosby, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4067, FAX (804) 698-4032, or email george.cosby@deq.virginia.gov.

Summary:

The proposed regulation amends and reissues the existing general permit for domestic sewage discharges of less than or equal to 1,000 GPD (VAG40) that will expire on August 1, 2011. The significant revisions to the regulation are as follows:

1. Authorization to Discharge (9VAC25-110-60). Added two reasons why the Department of Environmental Quality (DEQ) would deny coverage under the general permit.

2. Registration Statement (9VAC25-110-70). Added a provision that allows owners of treatment works that were authorized under the expiring general permit, and who intend to continue coverage under this general permit, to be automatically covered without requiring the owner to submit a new registration statement. Clarified that maintenance contracts are required for treatment works serving individual single family dwellings.

3. General Permit (9VAC25-110-80).

Part I - Effluent Limitations, Monitoring Requirements, and Special Conditions. Identified the two effluent limitation and monitoring requirements sections as Part I.A (Receiving waters where the 7Q10 flows are < 0.2 MGD) and Part I.B (Receiving waters where the 7Q10 flows are >= 0.2 MGD) and made the following revisions: (i) modified the bacteria effluent limits to address the recent changes to the Virginia Water Quality Standards; and (ii) added clarifications to the footnotes for the effluent limits table to explain where to find the classes of water and boundary designations and the description of what are "shellfish waters" in the Virginia Water Quality Standards. Renumbered the special conditions section to Part I.C and made the following changes: (i) deleted the schedule of compliance special condition; (ii) clarified the maintenance contract special condition for treatment works serving individual single family dwellings to indicate that maintenance contracts are required for these treatment works; (iii) clarified that the previous permit maintenance contract special condition applies to treatment works serving nonsingle family dwellings; (iv) clarified that the operation and maintenance plan special condition applies to treatment works serving nonsingle family dwellings and added a requirement that all results of testing and sampling must be kept with the maintenance log; (v) added compliance recordkeeping special conditions containing recordkeeping instructions for the permittee regarding quantification levels and significant digits; and (vi) added a water quality standards special condition requiring discharges authorized by the permit to meet water quality standards.

Part II - Conditions Applicable To All VPDES Permits. Modified the duty to reapply section to indicate that permittees that are required to submit a new registration statement to reapply for permit coverage must submit the new registration statement at least 60 days prior to the expiration date of the permit. Added an explanation of automatic permit coverage renewal and how a facility qualifies. Clarified that the automatic transfer of permit provision applies when the current permittee notifies the DEQ within 30 days of the transfer of property title.

9VAC25-110-10. Definitions.

The words and terms used in this chapter shall have the same meanings as given in the State Water Control Law, Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1 of the Code of Virginia and the VPDES Permit Regulation (9VAC25-31), unless the context clearly indicates otherwise, except that for the purposes of this chapter:

"7Q10" means the lowest flow averaged over a period of seven consecutive days that can be statistically expected to occur once every 10 climatic years.

"Climatic year" means a year beginning on April 1 and ending on March 31.

"DEQ" means the Virginia Department of Environmental Quality or the department.

"Domestic sewage" means the water-carried human wastes from residences, buildings, industrial establishments or other places.

"Total maximum daily load" or "TMDL" means a calculation of the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards, and an allocation of that amount to the pollutant's sources. A TMDL includes wasteload allocations (WLAs) for point source discharges, and load allocations (LAs) for nonpoint sources or natural background or both, and must include a margin of safety (MOS) and account for seasonal variations.

9VAC25-110-20. Purpose; delegation of authority; effective date of permit.

A. This general permit regulation governs domestic sewage discharges to surface waters from treatment works with a design discharge flow of less than or equal to 1,000 gallons per day on a monthly average. No discharge of pollutants from domestic sewage treatment works is allowed except when in compliance with the conditions of this permit.

B. The Director of the Department of Environmental Quality, or his designee, may perform any act of the board provided under this chapter, except as limited by § 62.1-44.14 of the Code of Virginia.

C. This general VPDES permit will become effective on August 2, 2006 2011, and it expires on August 1, 2011 2016. With respect to a particular facility, this general permit shall become effective upon the facility owner's compliance with the provisions of 9VAC25-110-60 and receipt of a copy of the general VPDES permit.

9VAC25-110-60. Authorization to discharge.

A. Any owner of a treatment works governed by this general permit is hereby authorized to discharge treated domestic sewage to surface waters of the Commonwealth of Virginia provided that the:

1. The owner has filed with the department the submits a registration statement described, if required to do so, in accordance with 9VAC25-110-70, has complied and that registration statement is accepted by the department;

2. The owner complies with the effluent limitations and other requirements of 9VAC25-110-80, and has complied with all the following conditions:; and

3. The owner has not been notified by the department that authorization is denied in accordance with subsection B of this section.

B. The department will notify an owner of denial of authorization in the event of any of the following:

1. The owner shall not have been is required to obtain an individual VPDES permit as may be required in accordance with 9VAC25-31-170 B 3 of the VPDES Permit Regulation;

2. The owner shall not be authorized by this general permit is proposing to discharge to surface waters specifically named in other board regulations or policies that prohibit such discharges;

3. The owner shall not be authorized by this general permit is proposing to discharge to surface waters in an area where there are central sewage facilities reasonably available, as determined by the department; and

4. The owner of any proposed treatment works or any treatment works that has not previously been issued a valid VPDES permit shall have has applied to the Virginia Department of Health for an onsite sewage disposal system permit, and the Virginia Department of Health must have has determined that there is no technology available to serve that parcel of land with an onsite system;

5. The discharge would violate the antidegradation policy stated in 9VAC25-260-30 of the Virginia Water Quality Standards; or

6. A TMDL (board adopted, EPA approved, or EPA imposed) contains a WLA for the facility, unless this general permit specifically addresses the TMDL pollutant of concern and the permit limits are at least as stringent as those required by the TMDL WLA.

B. Receipt of C. Compliance with this general permit constitutes compliance with the Clean Water Act, the State Water Control Law, and applicable regulations under either, with the exceptions stated in 9VAC25-31-60 of the VPDES Permit Regulation. Approval for coverage under this general VPDES permit does not relieve any owner of the responsibility to comply with any other applicable federal, state or local statute, ordinance or regulation, including applicable regulations, for owners of sewage treatment works that serve individual single family dwellings, the Alternative Discharging Sewage Treatment Regulations for Individual Single Family Dwellings (12VAC5-640) of the Virginia Department of Health adopted pursuant to §§ 32.1-12, 32.1-163, and 32.1-164 of the Code of Virginia and, for any owner owners of sewage treatment works that serve nonsingle family dwellings, the Sewage Collection and Treatment Regulations (9VAC25-790) adopted by the State Water Control Board pursuant to § 62.1-44.18 of the Code of Virginia.

D. Continuation of permit coverage.

1. Any owner that was authorized to discharge under the general permit issued in 2006, and who is required to and submits a complete registration statement on or before August 1, 2011, is authorized to continue to discharge treated domestic sewage under the terms of the 2006 general permit until such time as the department either:

a. Issues coverage to the owner under this general permit; or

b. Notifies the owner that coverage under this permit is denied.

2. When the facility that was covered under the expiring or expired general permit is not in compliance with the conditions of that permit, the board may choose to do any or all of the following:

a. Initiate enforcement action based upon the general permit which has been continued;

b. Issue a notice of intent to deny coverage under the new general permit. If the general permit coverage is denied, the owner would then be required to cease the activities authorized by the continued general permit or be subject to enforcement action for operating without a permit;

c. Issue an individual permit with appropriate conditions; or

d. Take other actions authorized by the VPDES Permit Regulation (9VAC25-31).

9VAC25-110-70. Registration statement.

A. Deadlines for submitting registration statement. The Any owner required to submit a registration statement shall file submit a complete General VPDES Permit Registration Statement in accordance with this chapter, which shall serve as a notice of intent to be covered under the general VPDES permit for domestic sewage discharges of less than or equal to 1,000 gallons per day in accordance with this chapter.

1. New facilities. Any owner proposing a new discharge shall file submit a complete registration statement with to the department at least 60 days prior to the date planned for commencing operation of the treatment works.

2. Existing facilities.

a. Any owner of an existing treatment works covered by an individual VPDES permit who is proposing to be covered by this general permit shall file notify the department at least 180 days prior to the expiration date of the individual VPDES permit, and shall submit a complete registration statement at least 180 60 days prior to the expiration date of the individual VPDES permit.

b. Any owner of an existing a treatment works that was authorized to discharge under the general permit issued in 2001 shall have filed a complete registration statement prior to June 2, 2006, and who intends to continue coverage under this general permit, is automatically covered under this general permit and is not required to submit a registration statement if:

(1) The ownership of the treatment works has not changed since the registration statement for coverage under the 2006 general permit was submitted, or, if the ownership has changed, a new registration statement or VPDES Change of Ownership form was submitted to the department at the time of the title transfer;

(2) There has been no change in the design or operation, or both, of the treatment works since the registration statement for coverage under the 2006 general permit was submitted;

(3) For treatment works serving individual single family dwellings, the Virginia Department of Health has no objection to the automatic permit coverage renewal for this treatment works based on system performance issues, enforcement issues, or other issues sufficient to the department. If the Virginia Department of Health objects to the automatic renewal for this treatment works, the owner will be notified by the department in writing; and

(4) For treatment works serving nonsingle family dwellings, the department has no objection to the automatic permit coverage renewal for this treatment works based on system performance issues, or enforcement issues. If the department objects to the automatic renewal for this treatment works, the owner will be notified in writing.

Any owner that does not qualify for automatic permit coverage renewal shall submit a complete registration statement to the department on or before June 2, 2011.

c. Any owner of an existing treatment works not currently covered by a VPDES permit who is proposing to be covered by this general permit shall file submit a complete registration statement by August 2, 2006 to the department.

3. New owners of existing facilities. Any new owner of an existing facility that is covered by this general permit must submit a complete registration statement or a " VPDES Change of Ownership" form to the department within 30 days of the ownership change transfer of title.

4. Late notifications. Any owner of a new or existing facility is not precluded from submitting a registration statement after the applicable dates provided in subdivisions 1, 2 and 3 of this subsection. If a late registration statement is submitted, the owner is only authorized for discharges that occur after permit coverage is granted. The department reserves the right to take appropriate enforcement actions for any unpermitted discharges. Late registration statements will be accepted by the department, but authorization to discharge will not be retroactive.

B. Registration statement. The registration statement shall contain the following information:

1. a. Indicate if the facility served by the treatment works is a single family dwelling. If the facility is not a single family dwelling, describe the facility's use.

b. Name and location street address of the facility/residence facility served by the treatment works.

2. Name, mailing address, email address (where available), and work and home telephone numbers of the facility owner. Indicate For a dwelling, indicate if the owner is or will be the occupant of the facility dwelling.

3. Name of the water body receiving the discharge. Indicate if the discharge point is on a stream that usually flows during dry weather.

4. The amount of discharge, in gallons per day, on a monthly average, and the design flow of the treatment works, in gallons per day.

5. A description of any pollutants, other than domestic sewage, to be discharged.

6. If For a proposed treatment works, indicate if there are central sewage facilities available to serve this the facility.

7. If the facility currently has a VPDES permit. Provide , provide the permit number, if applicable. Indicate if the facility has been built and begun discharge discharging.

8. For the owner of any proposed treatment works or any treatment works that has not previously been issued a valid VPDES permit:

a. A topographic map or computer generated map that indicates the discharge point, the location of the property to be served by the treatment works, and the location of any wells, springs, and other water bodies, or downstream and any residences within 1/2 mile downstream from the discharge point;

b. A site diagram of the existing or proposed sewage treatment works; and including to include the property boundaries, the location of the facility/residence facility or dwelling to be served, the individual sewage treatment units, the receiving water body, and the discharge line location; and

c. A copy of the notification from the Virginia Department of Health that an onsite sewage disposal system permit has been applied for and that the Virginia Department of Health has determined that there is no technology available to serve that parcel of land with an onsite system.

9. Maintenance contract.

a. For the owner of an existing treatment works serving an individual single family dwelling, provide the name of the individual or company contracted to perform the treatment works maintenance, and the expiration date of the current contract;

b. For the owner of any an existing treatment works serving a nonsingle family dwelling, indicate if a valid maintenance contract has been obtained, or if an exception to the maintenance contract requirement has been requested and granted in accordance with subdivision 10 of this subsection. Provide the name of the contract provider individual or company contracted to perform the treatment works maintenance, and the expiration date of the current contract, if applicable. A valid maintenance contract shall provide for the following:

a. (1) Performance of all testing required in accordance with either 9VAC25-110-80 Part I A or Part I B, as appropriate, and periodic (at least annual) inspections of the treatment works. Note: The treatment works should be sampled during normal discharging operations or normal discharging conditions (i.e., operations that are normal for that facility). The owner or maintenance provider should not force a discharge in order to collect a sample;

b. (2) A written notification to the owner within 24 hours whenever the contract provider becomes aware that maintenance or repair of the owner's treatment works is necessary. The owner is responsible for prompt maintenance and repair of the treatment works including all costs associated with the maintenance or repair. Immediately upon receipt of notice that repair or maintenance is required, the owner shall begin emergency pump and haul of all sewage generated in from the facility or dwelling if full and complete repairs cannot be accomplished within 48 hours.

c. (3) A log of the following items will shall be maintained by the contract provider for as long as the contract is in force:

(1) (a) Results of all tests and sampling. Note: If sampling is attempted, but no sample was taken or possible, the log shall show all sampling attempts, and document and explain why no sample was taken or possible;

(2) (b) Alarm activation incidents;

(3) (c) Maintenance, corrective, or repair activities performed;

(4) (d) Recommended repair or replacement items; and

(5) (e) Copies of all reports prepared by the contract provider.

d. (4) An inspection will shall be conducted by the contract provider within 48 hours after notification by the owner that a problem may be occurring; and

e. A (5) The maintenance contract shall be valid for a minimum of 24 months of consecutive coverage under the maintenance contract.

10. The owner of any an existing treatment works serving a nonsingle family dwelling may request an exception to the maintenance contract requirement by submitting an operation and maintenance plan to the department for review and approval. If an operation and maintenance plan has been approved by the department previously and remains current and complete, then it does not need to be resubmitted. In such cases, the owner shall provide the date of approval of the operation and maintenance plan, and identify any changes that have been made to the approved operation and maintenance plan. At a minimum, the operation and maintenance plan shall contain the following information:

a. An up-to-date operation and maintenance manual for the treatment works;

b. A log of all maintenance performed on the plant treatment works including, but not limited to, the following:

(1) The date and amount of disinfection chemicals added to the chlorinator.

(2) If dechlorination is used, the date and amount of any dechlorination chemicals that are added.

(3) The date and time of equipment failure(s) and the date and time the equipment was restored to service.

(4) The date and approximate volume of sludge removed.

(5) Results of all tests and sampling. Note: If sampling is attempted, but no sample was taken or possible, the log shall show all sampling attempts, and document and explain why no sample was taken or possible;

c. Dated receipts for chemicals purchased, equipment purchased, and maintenance performed; and

d. An effluent monitoring plan in accordance to conform with the requirements of 9VAC25-110-80 Part I A or Part I B, as appropriate, including all sample collection, preservation, and analysis procedures. Note: The treatment works should be sampled during normal discharging operations or normal discharging conditions (i.e., operations that are normal for that facility). The owner or maintenance provider should not force a discharge in order to collect a sample.

11. The following certification: "I hereby grant to duly authorized agents of the Department of Environmental Quality, upon presentation of credentials, permission to enter the property where the treatment works is located for the purpose of determining compliance with or the suitability of coverage under the General Permit. I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system or those persons directly responsible for gathering the information, the information submitted is to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false information including the possibility of fine and imprisonment for knowing violations."

The registration statement shall be signed in accordance with the requirements of 9VAC25-31-110.

9VAC25-110-80. General permit.

Any owner whose registration statement is accepted by the board will receive the following permit and, or whose permit coverage is automatically renewed, shall comply with the requirements contained therein herein and be subject to all requirements of 9VAC25-31-170.

General Permit No.: VAG40
Effective Date: August 2, 2006 2011
Expiration Date: August 1, 2011 2016

GENERAL PERMIT FOR DOMESTIC SEWAGE DISCHARGES OF LESS THAN OR EQUAL TO 1,000 GALLONS PER DAY

AUTHORIZATION TO DISCHARGE UNDER THE VIRGINIA POLLUTANT DISCHARGE ELIMINATION SYSTEM AND THE VIRGINIA STATE WATER CONTROL LAW

In compliance with the provisions of the Clean Water Act (33 USC § 1251 et seq.), as amended, and pursuant to the State Water Control Law and regulations adopted pursuant thereto, owners of treatment works with domestic sewage discharges of a design flow of less than or equal to 1,000 gallons per day on a monthly average are authorized to discharge to surface waters within the boundaries of the Commonwealth of Virginia, except those waters specifically named in board regulations or policies that prohibit such discharges.

The authorized discharge shall be in accordance with this cover page, Part I-Effluent Limitations, Monitoring Requirements and Special Conditions, and Part II-Conditions Applicable to All VPDES Permits, as set forth herein.

Title of Regulation: 9VAC25-115. General Virginia Pollutant Discharge Elimination System (VPDES) Permit for Seafood Processing Facilities (amending 9VAC25-115-10 through 9VAC25-115-50).

Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.

Public Hearing Information:

August 26, 2010 - 1 p.m. - Department of Environmental Quality, 629 East Main Street, 2nd Floor Conference Room, Richmond, VA

Public Comment Deadline: September 17, 2010.

Public Participation: In addition to any other comments, the board is seeking comments on the costs and benefits of the proposal, the potential impacts on the regulated community, and any impacts of the regulation on farm and forest land preservation. Also, the board is seeking information on impacts on small businesses as defined in § 2.2-4007.1 of the Code of Virginia. Information may include i) projected reporting, recordkeeping, and other administrative costs, ii) probable effect of the regulation on affected small businesses, and iii) description of less intrusive or costly alternative methods of achieving the purpose of the regulation.

Anyone wishing to submit written comments for the public comment file may do so at the public hearing or by mail, email, or fax to George Cosby, Office of Regulatory Affairs, Department of Environmental Quality, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4067, fax (804) 698-4032, email george.cosby@deq.virginia.gov. Comments may also be submitted through the public forum feature of the Virginia Regulatory Town Hall website at www.townhall.virginia.gov. Written comments must include the name and address of the commenter. In order to be considered comments must be received by 11:59 p.m. on the date established as the close of the comment period.

Agency Contact: George Cosby, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4067, FAX (804) 698-4032, or email george.cosby@deq.virginia.gov.

Summary

The proposed changes amend and reissue the general permit that expires on July 23, 2011. The general permit that establishes limitations and monitoring requirements for wastewater discharges from seafood processing facilities is continued. As with an individual VPDES permit, the effluent limits in the general permit are set to protect the quality of the waters receiving the discharges. The proposed changes (i) add two reasons authorization to discharge cannot be granted, (ii) add language to allow for administrative continuances of coverage, (iii) add three new special conditions, (iv) update the storm water pollution prevention plan section and (v) modify due dates in the conditions applicable to all permits section.

9VAC25-115-10. Definitions.

The words and terms used in this chapter shall have the meanings defined in the State Water Control Law, Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1 of the Code of Virginia and the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31) unless the context clearly indicates otherwise. Additionally, for the purposes of this chapter:

"Industrial activity" means the facilities classified under SIC Code 2091 or 2092.

"Runoff coefficient" means the fraction of total rainfall that will appear at the conveyance as runoff.

"Seafood processing facility" means any facility classified under SIC Code 2091, 2092, 5142, or 5146, except a mechanized clam facility, which processes or handles seafood intended for human consumption or as bait, except a mechanized clam facility. Seafood includes but is not limited to crabs, oysters, hand-shucked clams, scallops, squid, eels, turtles, fish, conchs and crayfish.

"SIC" means the Standard Industrial Classification Code or Industrial Grouping from the U.S. Office of Management and Budget Standard Industrial Classification Manual, 1987 edition.

"Significant materials" includes, but is not limited to, raw materials; fuels; materials such as solvents, detergents, and plastic pellets; finished materials such as metallic products; raw materials used in food processing or production (except oyster, clam or scallop shells); hazardous substances designated under § 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (42 USC § 9601); any chemical the facility is required to report pursuant to § 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) (42 USC § 11023); fertilizers; pesticides; and waste products such as ashes, slag and sludge that have the potential to be released with storm water discharges.

"Storm water" means storm water runoff, snow melt runoff, and surface runoff and drainage.

"Storm water discharge associated with industrial activity" means the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. The term does not include discharges from facilities or activities excluded from the VPDES program under 9VAC25-31-10 et seq. For the categories of industries identified in the "industrial activity" definition, the term includes, but is not limited to, storm water discharges from industrial plant yards; immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or byproducts (except for oyster, clam or scallop shells) used or created by the facility; material handling sites; refuse sites; sites used for the application or disposal of process wastewaters; sites used for the storage and maintenance of material handling equipment; sites used for residual treatment, storage, or disposal; shipping and receiving areas; manufacturing buildings; storage area (including tank farms) for raw materials, and intermediate and finished products; and areas where industrial activity has taken place in the past and significant materials remain and are exposed to storm water. For the purposes of this paragraph, material handling activities include the storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, finished product, byproduct or waste product (except for oyster, clam or scallop shells). The term excludes areas located on plant lands separate from the plant's industrial activities, such as office buildings and accompanying parking lots as long as the drainage from the excluded areas is not mixed with storm water drained from the above described areas.

"Total maximum daily load" or "TMDL" means a calculation of the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards, and an allocation of that amount to the pollutant's sources. A TMDL includes wasteload allocations (WLAs) for point source discharges, and load allocations (LAs) for nonpoint sources or natural background, or both, and must include a margin of safety (MOS) and account for seasonal variations.

9VAC25-115-20. Purpose; delegation of authority; effective date of permit.

A. This general permit regulation governs the discharge of wastewater and storm water associated with industrial activity from seafood processing facilities. It does not cover wastewater discharges from mechanized clam processing facilities. No discharge from seafood processing facilities is allowed except when in compliance with this permit.

B. The director, or an authorized representative, may perform any act of the board provided under this regulation, except as limited by § 62.1-44.14 of the Code of Virginia.

C. This general permit will become effective on July 24, 2001 2011, and will expire on July 23, 2011 2016. For any covered owner, this general permit is effective upon compliance with all the provisions of 9VAC25-115-30 and the receipt of this general permit.

9VAC25-115-30. Authorization to discharge.

A. Any owner governed by this general permit is hereby authorized to discharge to surface waters of the Commonwealth of Virginia provided that the owner files a registration statement in accordance with 9VAC25-115-40 that is accepted by the board, files the required permit fee, complies with the effluent limitations and other requirements of 9VAC25-115-50, and provided that: the owner has not been notified by the department that authorization is denied in accordance with subsection B of this section.

B. The department will notify an owner of denial of authorization in the event of any of the following:

1. Individual permit. The owner shall not have been is required to obtain an individual permit as may be required in the VPDES Permit Regulation (9VAC25-31). in accordance with 9VAC25-31-170 B 3 of the VPDES Permit Regulation;

2. Prohibited discharge locations. The owner shall not be authorized by this general permit is proposing to discharge to state waters specifically named in other board regulations or policies that prohibit such discharges.;

3. Nutrient discharges. Annual The owner is proposing to discharge annual mass loadings of total nitrogen in excess of 2,300 pounds per year or of total phosphorus in excess of 300 pounds per year are not authorized by this general permit.;

4. The discharge would violate the antidegradation policy stated in 9VAC25-260-30 of the Virginia Water Quality Standards; or

5. A TMDL (board adopted and EPA approved or EPA imposed) contains a WLA for the facility, unless this general permit specifically addresses the TMDL pollutant of concern and the permit limits are at least as stringent as those required by the TMDL WLA.

Receipt of this general permit does not relieve any owner of the responsibility to comply with any other federal, state or local statute, ordinance or regulation. C. Compliance with this general permit constitutes compliance with the Clean Water Act, the State Water Control Law, and applicable regulations under either, with the exceptions stated in 9VAC25-31-60 of the VPDES Permit Regulation. Approval for coverage under this general permit does not relieve any owner of the responsibility to comply with any other federal, state or local statute, ordinance or regulation.

D. Continuation of permit coverage.

1. Any owner that was authorized to discharge under the general permit issued in 2006, and who submits a complete registration statement on or before July 23, 2011, is authorized to continue to discharge under the terms of the 2006 general permit until such time as the department either:

a. Issues coverage to the owner under this general permit; or

b. Notifies the owner that coverage under this permit is denied.

2. When the facility that was covered under the expiring or expired general permit is not in compliance with the conditions of that permit, the board may choose to do any or all of the following:

a. Initiate enforcement action based upon the general permit that has been continued;

b. Issue a notice of intent to deny coverage under the amended general permit. If the general permit coverage is denied, the owner would then be required to cease the activities authorized by the continued general permit or be subject to enforcement action for operating without a permit;

c. Issue an individual permit with appropriate conditions; or

d. Take other actions authorized by the VPDES permit Regulation (9VAC25-31)

9VAC25-115-40. Registration statement.

A. Deadlines for submitting registration statement. The owner shall file submit a complete general VPDES permit registration statement in accordance with this chapter, which will shall serve as a notice of intent for coverage under the general permit for seafood processors.

1. New facilities. Any owner proposing a new discharge shall submit a complete registration statement to the department at least 30 days prior to the date planned for commencing operation of the treatment works.

2. Existing facilities.

a. Any owner of an existing seafood processing facility covered by an individual VPDES permit who is proposing to be covered by this general permit shall notify the department at least 180 days prior to the expiration date of the individual VPDES permits, and shall submit a complete registration statement at least 30 days prior to the expiration date of the individual VPDES permit.

b. Any owner of an existing facility covered by the that was authorized to discharge under the general VPDES permit for seafood processing facilities that became effective on July 24, 2001 2006, and who wishes to remain covered by intends to continue coverage under this general permit shall file a new submit a complete registration statement to the department prior to June 24, 2011 in accordance with the general permit requirements in order to avoid a lapse in coverage. Any owner proposing a new discharge shall file the registration statement at least 30 days prior to the date planned for operation of the new discharge. Any owner of an existing seafood processing facility covered by an individual VPDES permit who is proposing to be covered by this general permit shall file the registration statement at least 180 days prior to the expiration date of the individual VPDES permit.

c. Any owner of an existing seafood processing facility not currently covered by a VPDES permit who is proposing to be covered by this general permit shall file the submit a complete registration statement to the department.

After d. Any owner of an existing seafood processing facility adding a new process after coverage under the general permit is obtained, shall submit an amended registration statement must be submitted to the department at least 30 days prior to commencing operation of any the new process not included on the original registration statement.

3. New owners of existing facilities. Any new owner of an existing facility that is covered by this general permit must submit a complete registration statement or a VPDES Change of Ownership form within 30 days of the transfer of title.

4. Late registration statements will be accepted but authorization to discharge will not be retroactive.

B. The registration statement shall contain the following information:

1. Facility name, owner, mailing address, email address (where available), and telephone number;

2. Facility location street address (if different from mailing address);

3. Facility operator name, address, email address, and telephone number if different than owner;

4. Does the facility discharge to surface waters? Name of receiving stream if yes and, if no, describe the discharge;

5. Does the facility have a current VPDES Permit? Permit Number if yes;

6. The original date of construction of the seafood processing facility building and dates and description of all subsequent facility construction.;

7. A USGS topographic or computer generated map showing the facility discharge location and receiving water body;

8. Facility SIC Code(s);

9. Nature of business at facility;

10. Discharge outfall information;

11. Facility maximum production information;

12. Facility line (water balance) drawing;

13. Discharge and outfall descriptions for different seafood processes that operate simultaneously;

14. Treatment and solid waste disposal information;

15. Information on use of chemicals at the facility; and

16. The following certification: "I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system or those persons directly responsible for gathering the information, the information submitted is to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false information including the possibility of fine and imprisonment for knowing violations."

The registration statement shall be signed in accordance with 9VAC25-31-110.

9VAC25-115-50. General permit.

Any owner whose registration statement is accepted by the director will receive the following permit and shall comply with the requirements therein and be subject to all requirements of the VPDES Permit Regulation, 9VAC25-31.

General Permit No.: VAG52
Effective Date: July 24, 2006 2011
Expiration Date: July 23, 2011 2016

GENERAL PERMIT FOR SEAFOOD PROCESSING FACILITY

AUTHORIZATION TO DISCHARGE UNDER THE VIRGINIA POLLUTANT DISCHARGE ELIMINATION SYSTEM AND THE VIRGINIA STATE WATER CONTROL LAW

In compliance with the provisions of the Clean Water Act, as amended, and pursuant to the State Water Control Law and regulations adopted pursuant to it, owners of seafood processing facilities, other than mechanized clam processing facilities, are authorized to discharge to surface waters within the boundaries of the Commonwealth of Virginia, except those specifically named in board regulations or policies that prohibit such discharges.

The authorized discharge shall be in accordance with this cover page, Part I—Effluent Limitations and Monitoring Requirements, Part II—Storm Water Pollution Prevention Plans, and Part III—Conditions Applicable to All VPDES Permits, as set forth herein.